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2018-49-Minutes for Meeting January 10,2018 Recorded 2/7/2018
I Recorded in Deschutes County Nancy Blankenship, County Clerk Commissioners' Journal CJ2018-49 02/07/2018 8:30:39 AM 11111111111111111111111110ii For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Barnes and Sawyer Rooms Wednesday, January 10, 2018 Present were Commissioners Tammy Baney, Anthony DeBone and Phil Henderson. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Assistant. Representatives of the media and citizens were in attendance. CALL TO ORDER: Chair DeBone opened the meeting at 1:48 p.m. ACTION ITEMS 1. Mosaic Medical License: Present for the discussion were Health Services Director George Conway, Program Director Elaine Knobbs-Seacholtz and Chief Executive Officer Megan Haases of Mosaic Medical, Health Services Deputy Director Dave lnbody, and Deschutes County Property Manager James Lewis. George Conway, Health Services Director presented the Health Department's request to grant Mosaic Medical a license to establish a primary medical care clinic with nine exam rooms and two offices at the Deschutes County Health Services building located at 2577 NE Courtney Drive. The services provided will be general health care for behavioral health clients. This allows for comprehensive medical care at a single location. Due to the benefits afforded to the behavioral health Minutes of Board of Commissioners' Work Session January 10, 2018 Page 1 of 5 and public health clients, Mosaic Medical will not be charged for use of the clinical space. Mosaic Medical will provide all equipment and expenses necessary for their operation of the clinic. Discussion held on patient population that would be served. Commissioner DeBone inquired if there would be a basic fee charged to cover utilities and building maintenance. Mr. Lewis replied that a calculation could be based on square footage. Concern was voiced regarding timing and deadlines for Mosaic Medical to establish the clinic; Mosaic suggested that county approval is needed very soon, perhaps as soon as this Friday. A fee option would need to be taken back to the Mosaic Medical Board to decide if they will want to proceed with the collaboration. Commissioner DeBone suggested a possible approval with rent free for a year and then the consideration of a fee. The risk is if there is a determined cost, then Mosaic may not be interested any longer. Mr. Conway noted the term of the Certified Community Based Health Clinic (CCBHC) ends in March 2019 so it would be awkward to have anything in a shorter duration than that. Commissioners DeBone and Henderson suggested a possible $1,000 per month fee for utilities and building. Commissioner Baney commented the County is required to provide certain levels of care and this offers an opportunity to integrate care and share care for clients she see that as a greater benefit than receiving compensation for utilities. Commissioner Henderson feels the Board shouldn't be put in this position to ask us to decide on something last minute and should be provided information months ago during the negotiations with Mosaic. Mr. Conway commented on the no cost lease proposal and apologies for the inconvenience. County Administrator Anderson suggested to investigate and go back with the CCBHC deadline and review what the consequences to the grant would be. Mr. Conway will bring information to County Administrator Anderson to review the next steps. Mr. Inbody stated if we don't have an integrated care service by April 1" in the Courtney building they cannot receive federal funding (CCBHC) for that building. The Board expressed frustration and would have been interested to be aware of the consequences and deadlines to make a supportive decision. Options discussion on a possible different space. An option of a mobile clinic was also suggested. 2. Discussion: Water Law and Marijuana Matt Martin, Community Development Department introduced the discussion and explained Deschutes County is in the process of reviewing marijuana land use by evaluation and analysis of potential changes to our adopted regulations. Focus groups and interviews have been conducted, and public comment has been received. A series of meetings have been scheduled this month with various agencies for discussion. Today's topic is water impacts and regulation and joining the discussion is Leslie Clark, Central Oregon Irrigation District (COID); Chris Schull, Tumalo Irrigation District (TID); Minutes of Board of Commissioners' Work Session January 10, 2018 Page 2 of 5 and Kyle Gorman, Oregon Water Resource Department. Each representative gave background information for the public to know their positions and job responsibility. The Board had a list of questions to present for discussion regarding water regulation and marijuana. Mr. Gorman explained water rights are granted seasonally for irrigation and year-round for nursery use. Water rights can be transferred from irrigation to nursery through an application. Transferring water rights require the system usage is reviewed to understand the potential impact. Examples of water levels changing due to usage were given for different scenarios. Mr. Gorman explained % acre of non-commercial lawn and garden could be irrigated per domestic well. Commercial use could be 5,000 gallons per day. Domestic use do not significantly interfere with the aquifers. If someone wants to use water that exceed the exempt uses a water right needs to be obtained. A thorough review of the water table and use is done by Water Resources Department. Mr. Gorman noted that extensive information is available in the report of ground water hydrology of the Upper Deschutes Basin aquifer. The decline in the aquifer seems to be due to a drying trend in Central Oregon with 70% due to mother -nature and 20% is due to pumping water to serve homes and 10% is due to impact of piping the canals. There are water level declines. Mr. Gorman also provided trends of water tables and depths of wells. Commissioner Baney inquired how we manage without creating a greater problem. Water service areas of the Irrigation Districts was reviewed. Commissioner Baney inquired on restrictions on this particular crop. Mr. Gorman said medical grows can fit under the exempt use as long as they are providing for medical and not selling on the recreational market. Ground water can be used for medical grows but not for recreational grows. As of January 1St Water Resources Department has access to know if the grow is medical or not and if licensed. Mr. Gorman reviewed steps of enforcement to ensure legal use. Mr. Gorman spoke on the hydrologists that are assigned to review permits for water rights and the process to ensure the resources are there. Commissioner Baney inquired on the nursery use. Mr. Gorman stated the nursery use is different than irrigation and is allowed a higher duty. Commissioner Baney inquired on the water hauling. Mr. Gorman stated they could apply for a winter use but also could buy from an authorized dealer. Mr. Gorman said authorized water dealer would be a municipality or and authorized licensed water use dealer such as Avion. Commissioner Henderson noted the source of water should be included in the application. Discussion on metering held. Mr. Schull noted the delivery of water is being metered to the properties in the district. Ms. Clark noted it would be helpful to coordinate better with the county in order to know when a marijuana production facility application has been approved. Minutes of Board of Commissioners' Work Session January 10, 2018 Page 3 of 5 Mr. Schull stated in the TID bylaws it is stated if they are providing water they are to be allowed on the property and have seen a few instances of resistance for accessing the property. Problems have been seen by COID with growers on water access and head gate access. Commissioner DeBone asked for questions from the audience to be written and provided to the Board to include in today's discussion. 3. Possible Marijuana Production Appeal Caroline House, Community Development Department presented the possible appeal for the subject property of 22160 Highway 20, Bend. The set -back requirements were reviewed. This is an administrative decision that may be appealed and if appealed it has to be heard de novo. Discussion held on possibly calling it up based on the set -back exception. The process of regulations in place and the original intention was to not authorize these set -backs on smaller parcels. An Order could be approved at today's Work Session in order to follow the timelines if the Board determine they want to accept the review. BANEY: Move approval of Order No. 2018-003 contingent upon receiving an appeal HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried RECESS: At 4:55 p.m., the Board took a recess and reconvened in the Allen Room at 5:05 p.m. EXECUTIVE SESSION: At the time of 5:05 p.m., the Board went into Executive Session under ORS 192.660 (2) (h) Litigation and ORS 192.660 (2) (b) Personnel Issues. The Board came out of Executive Session at 6:10 p.m. Minutes of Board of Commissioners' Work Session January 10, 2018 Page 4 of 5 OTHER ITEMS: • County Administrator Anderson noted the Joint Meeting with the City of Redmond is Tuesday, January 16. The draft agenda includes an update on the Crisis Center Sober Station and Affordable Housing. • The Board Retreat is scheduled for Tuesday, January 30. Whitney Hale, Public Information Officer and Judith Ure, Management Analyst are creating an agenda. They plan to meet with each Commissioner individually for additional suggestions. There will not be a retained facilitator at this year's retreat. ADJOURN: Being no further discussion, the meeting adjourned at 6:20 p.m. DATED this / Day Board of Commissioners. ATT 1ecording°Secretary Minutes of Board of Commissioners' Work Session dA''�, 2018 for the Deschutes County Anthony DeBonC) air Philip G. Hderson, Vice Chair Tammy Baney, Com sioner January 10, 2018 Page 5 of 5 (E we400, c Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 *11-K01 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, JANUARY 10, 2018 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. Mosaic Medical License - George Conway, Health Services Director 2. Discussion: Water Law and Marijuana - Matthew Martin, Senior Planner 3. Possible Marijuana Production Appeal - Subject Property of 22160 Highway 20, Bend - Caroline House, Assistant Planner EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Board of Commissioners Work Session Agenda Wednesday, January 10, 2018 Page 1 of 2 a • OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN ®® Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.orgimeetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, January 10, 2018 Page 2 of 2 G W o r a -< Deschutes County Board of Commissioners 1300 NW Wali St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ -(ES AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of January 10, 2018 DATE: January 4, 2018 FROM: George Conway, Health Services, TITLE OF AGENDA ITEM: Mosaic Medical License RECOMMENDATION & ACTION REQUESTED: Staff recommends signature of Document 2018-020 (Formerly 2017-738). BACKGROUND AND POLICY IMPLICATIONS: Mosaic Medical is negotiating and coordinating a Memorandum of Understanding (attached as Exhibit A to the subject License Agreement) with Deschutes County Health Services to operate a Primary Medical Care Clinic at the Deschutes County Health Services Building located at 2577 NE Courtney Drive, Bend. Under the License Agreement, the facility will occupy multiple examination rooms and office spaces currently designed and constructed for such purposes on the first floor of the building. The clinic will be open to the public, but will primarily serve many of the same behavioral health clients being treated by Deschutes County mental health staff in other portions of the same building. Research shows that people with mental illness die earlier than the general population and have more co-occurring health conditions. Colocation and integration of physical health care and behavioral health care can lead to improved patient outcomes and experience of care. The co -location of Mosaic Medical's Primary Care services in a Health Services Department facility enables integration of services for Behavioral Heath, as well as Public Health clients. The degree to which service providers from each organization can readily collaborate on treatment plans for clients, refer clients for needed services in a timely way, and provide ongoing communication regarding client progress is significantly improved through co -location. Deschutes County Health Services / Behavioral Health has chosen to partner with Mosaic Medical to further replicate the success of the Harriman Health Care clinic collaboration and the improved outcomes our clients and community members have experienced as a result. Mosaic Medical, as a Federally Qualified Health Center, serves a similar role and purpose in our community of providing safety net services to individuals, regardless of their ability to pay. Due to this benefit to Behavioral Health and Public Health clients, Mosaic Medical will not be charged for uSe of the clinical space. Under the terms of the License Agreement and accompanying MOU, Mosaic Medical will be solely responsible for all materials, supplies and expenses necessary for their operation of the clinic. The basis and term of the License Agreement is dependent on the existence of the MOU between Deschutes County Health Services and Mosaic Medical - it is expressly stated in the License Agreement that upon expiration or termination of the MOU, Mosaic Medical must vacate the premises. The term of the License Agreement begins on January 1, 2018 and runs until June 30, 2023, with opportunities for further incremental extensions. As stated above, in support of the benefit to the community stemming from the collaboration of behavioral Health and Public Health services, Deschutes County will not charge rent for this License. FISCAL IMPLICATIONS: The space is provided for no rent. RECOMMENDATION & ACTION REQUESTED: Staff recommends signature of Document 2017-738. ATTENDANCE: George Conway, Health Services Director. DISTRIBUTION OF DOCUMENTS: Original color scan to James Lewis for the Licensee and property records. IE ,ED LE AL C i U EL REVOCABLE LICENSE DESCHUTES COUNTY a political subdivision of the State of Oregon ("Licensor") hereby grants to Mosaic Medical ("Licensee"), a non-exclusive revocable license to use County real property, described as rooms 139, 140, 141, 142, 145, 146, 147, 148, 150, 151, 152, 154, 155, 156, 158, 159, 165, 166, 167, 168, 169, 170, 171 and 173, designated by Licensor on the first floor, within Suite 100, of the Deschutes County Health Services Building located at 2577 NE Courtney Drive, Bend, Oregon 97701, together with necessary ingress and egress for such space, referred to herein as "the Premises." RECITALS Deschutes County is willing to grant Licensee a non-exclusive, revocable license so that Licensee may use the Premises to operate a Primary Medical Care Clinic. NOW THEREFORE, this nonexclusive, revocable license is granted upon the following terms and conditions: 1. Term. The effective date of this License shall be January 1, 2018, or the date on which each party has signed this License, whichever is later, and shall continue until June 30, 2023. The Term is subject to an active Memorandum of Understanding (hereafter MOU, and attached hereto as Exhibit A) between Licensee and Deschutes County Health Services, to provide primary medical care services at the Premises. Upon the date of expiration or termination of such contractual agreement/MOU, this License automatically terminates and Licensee shall vacate the Premises within 30 days. Licensor and Licensee each reserve the right to terminate this License prior to its expiration with sixty (60) days written notice, given to the other party. Except as otherwise provided in this License, if the Licensee is not then in default and with Licensor's approval, Licensee has the option to renew this License for five (5) years by giving at least thirty (30) days written notice to Licensor prior to the expiration of the initial term. Such renewal is contingent upon an active MOU between Licensee and Deschutes County Health Services, to provide medical treatment and health related services at the Premises as described in Section 3 below. 2. Rent. In exchange for the benefit the Licensee's service provides to the general public in conjunction with the services also provided therein by Deschutes County Health Services programs, Licensor shall not charge Licensee rent during the term of this License. 3. Use of Premises. The Premises shall be used by Licensee for operation of a Primary Medical Care Clinic (hereafter "Clinic"). Licensee shall operate the clinic pursuant to the provisions of the MOU. Licensee shall provide and be solely responsible for all necessary materials and supplies for operation of the Clinic as that use is described in Exhibit A. The Premises shall be used by Licensee for the purpose of operating Licensee's primary business, Mosaic Medical Primary Care Clinic. Licensee, its principals or agents shall not use the Premises to operate a business other than that specified in this License and shall not use the Premises address as the business or mailing address for any other business DC 2018-020 Page 1 of 9 DC -2018 Oc than that specified in this License without obtaining the Licensor's written consent in advance. 4. Parking. Licensee, its employees, and clientele shall have a nonexclusive right to access and utilize vehicle unassigned public parking spaces in County parking Tots on the Premises. Licensee's employees will be required to adhere to the County Parking Policy and Regulations regarding parking in designated employee parking spaces (attached hereto as Exhibit B), which County in its sole discretion may amend from time to time. 5. Restrictions on Use. In connection with the use of the Premises, Licensee shall: a) Conform to all applicable laws and regulations affecting the Premises and correct at Licensee's own expense any failure of compliance created through Licensee's fault or by reason of Licensee's use of the Premises. Licensee shall not be required to make any structural changes to affect such compliance, unless such changes are required because of Licensee's specific use. b) Refrain from any use which would be reasonably offensive to the Licensor, other licensees, tenants, or owners or users of adjoining premises or unoccupied portions of the premises, or which would tend to create a nuisance or damage the reputation of the real property. c) Refrain from making any unlawful or offensive use of said property or to suffer or permit any waste or strip thereof. d) Exercise diligence in protecting the premises and adjoining common area from damage. e) Be responsible for removing any liens placed on said property as a result of Licensee's use of licensed premises. f) Comply with Licensor's policies regarding tobacco -free facilities, parking, fragrances, facilities maintenance, facilities use and violence in the workplace. Those policies are attached to this License as Exhibit A and by this reference are incorporated herein. 6. Licensee's Obligations. The following shall be the responsibility of the Licensee: a) Licensee shall not be required to make structural repairs that would place the Premises in a better condition than at the commencement of this License. Licensee may place partitions, personal property, and the like in the Premises and may make nonstructural improvements and alterations to the Premises at its own expense. Licensee may be required to remove such items at the end of the License term. Licensee must obtain Lessor's express authorization prior to placing a fixture on the Premises. b) Licensee, at its expense, shall keep Licensee's equipment and facilities in a first-class repair, operating condition, working order and appearance. Licensee shall also be responsible for any repairs to other property necessitated by its negligence or the negligence or wrongful acts of its agents, employees and invitees. Licensor is not responsible for any loss, damage, maintenance or repair to Licensees equipment and facilities caused by Licensee. DC 2018-020 Page 2 of 9 c) Any repairs or alterations required under Licensee's obligation to comply with laws and regulations as set forth in "Restrictions on Use" above, and any repairs necessitated by the negligence of Licensee, its agents, employees or invitees, regardless of any other provision in this License. d) Licensee warrants the honesty and integrity of all personnel Licensee employs or authorizes to operate Licensees business on the Premises. Licensee shall notify Licensor in writing in advance of any changes in personnel having access to the Premises, including without limitation suspension, termination or resignation. Subject to security policies, practices and procedures, Licensee shall have access to and through Licensor's security access system and shall be responsible for retrieving access keys or badges from Licensee's personnel who are no longer Licensee's authorized employees or representatives on the Premises. Licensor reserves the right to prevent and/or limit access to the Premises for employees and clientele of Licensee for any reason pertaining to the safety and security of the Premises, and for the safety and security of persons working in or seeking treatment in/on the Premises. e) Licensee's employees shall have limited access to Suite 100, including rooms 139, 140, 141, 142, 145, 146, 147, 148, 150, 151, 152, 154, 155, 156, 158, 159, 165, 166, 167, 168, 169, 170, 171 and 173, designated by Licensor on the first floor, as well as shared use of the employee break room, and a portion of the reception and lobby areas as determined by mutual agreement between Licensor and Licensee separate from this License. f) Licensee's signage and decorative accessories may be provided but must be approved by the Licensor prior to installation. Interior wall -mounted or free-standing signs and decorative accessories may also be allowed, but must not interfere with public traffic flow or County signs and message boards as may be applicable. Placement of exterior signs, whether wall -mounted or free-standing, will be subject to the prior approval of the County's Facilities Department. Building exterior signs, if allowed, must also comply with the City of Bend sign code and be installed in accordance with all related City of Bend permit regulations. g) Maintain all Federal, State and local permits and licenses as may be applicable to operate the Clinic. h) Licensee shall take good care of the interior of the Premises and at the expiration of the term surrender the Premises in as good condition as at the commencement of this Lease, excepting only reasonable wear, permitted alterations, and damage by fire or other casualty. i) Licensee shall have the right to use Licensor owned fixtures and furniture existing within the Premises at upon commencement of the Term of this License. Such furniture and fixtures shall be maintained in good condition and shall remain on Premises upon expiration of this License. Damage by Licensee to fixtures and furniture that are the property of Licensor must be repaired or replaced to the same or better condition as determined by and at the sole discretion of Licensor. j) Licensee is solely responsible for all work associated with moving Licensee's personal property into, out of, and within the Premises. Such moving shall be coordinated with and DC 2018-020 Page 3 of 9 approved by Licensor to ensure such activities are not disruptive of other users within the building. k) Licensee shall not cause or permit any Hazardous Substance to be spilled, leaked, disposed of, or otherwise released on or under the Premises. Licensee shall comply with all Environmental Laws and exercise the highest degree of care in the use, handling, and storage of Hazardous Substances and shall take all practicable measures to minimize the quantity and toxicity of Hazardous Substances used, handled, or stored on the Premises. Upon the expiration or termination of this License, Licensee shall remove all Hazardous Substances from the Premises. The term Environmental Law shall mean any federal, state, or local statute, regulation or ordinance or any judicial or other governmental order pertaining to the protection of health, safety or the environment. The term Hazardous Substance shall mean any hazardous, toxic, infectious or radioactive substance, waste and material as defined or listed by Environmental Law and shall include, without limitation, petroleum oil and its fractions. I) Licensee shall comply with ASHRAE Standard 170-2013 regarding ventilation of healthcare facilities for surgical smoke and other emissions as applicable (not attached hereto). 7. Responsibilities of Each Agency. Each agency agrees to receive, or otherwise have access to, certain information that is confidential in accordance with State and Federal law, including without limitation, the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder, as may be amended from time to time (collectively "HIPAA") and the Federal Health Information Technology for Economic and Clinical Health Act (the "HITECH Act"). As further described in the MOU (Exhibit A), each party to this agreement and its employees and agents will maintain security, privacy and confidentiality of this information and will execute Business Associates Agreements upon request of either party. 8. Improvement, Maintenance and Repair of Premises. a) Licensor shall perform all necessary maintenance and repairs to the structure, foundation, exterior walls, roof, doors and windows, elevators, emergency lighting, and Licensor -provided fire extinguishers, sidewalks, and parking area which are located on or serve the Premises. Licensor shall maintain the premises in a hazard free condition and shall repair or replace, if necessary and at Licensor's sole expense, the heating, air conditioning, plumbing, electrical, and lighting systems in the Premises, obtaining required permits and inspections from Code enforcement authorities, and shall keep the Premises, improvements, grounds and landscaping in good repair and appearance replacing dead, damaged or diseased plant materials when necessary. b) Should Licensor fail to maintain the Premises in accordance with above requirements, and after at least fourteen (14) days prior written notification to Licensor, Licensee may terminate the License. c) Improvements necessary to the Premises to facilitate Licensees specific Use as described in Section 3, including new construction, demolition, alteration and replacement to/of existing conditions to the Premises, over and above the "as is" condition, including any and all associated costs and permits, shall be the sole responsibility of Licensee. All such improvements shall first be approved, with work subsequently authorized, by DC 2018-020 Page 4 of 9 Licensor. This includes Licensor's approval of Licensee's contractor, without any obligation for Licensor to oversee such improvements or to act as the project manager. Upon approval of any such work by Licensor, Licensee shall designate a representative to act as the sole point of contact for interaction with Licensor. d) Licensee shall maintain its facilities and equipment on the Premises so as to impact in the least possible way Licensor's equipment, facilities and personnel. Licensee shall also secure its personal property on the Premises in a clean, safe and sanitary condition when not in use and at the close of daily business. e) Licensee shall take good care of the interior of the Premises and at the expiration of the term surrender the Premises in as good condition as at the commencement of this License, excepting only reasonable wear, permitted alterations, and damage by fire or other casualty. f) All work (improvements, maintenance and repair) necessitated to allow Licensees Use of Premises shall be performed outside of regular work hours of 7:00 am to 5:00 pm, Monday through Friday, unless otherwise approved by Licensor prior to commencement. 9. Utilities and Services. a) Licensor shall provide adequate heat, electricity, water, air conditioning, trash removal service, and sewage disposal service for the Premises and janitorial services for the common areas of the building. Licensee shall provide its own janitorial services for the Premises. Licensee is solely responsible for any janitorial services for hazardous waste disposal and emergency clean-up resulting directly from Licensees use of Premises. Licensee shall have access to Room 139, janitorial closet. b) Licensee shall be responsible for providing all communications services and amenities necessary for operation of the Clinic, including but not limited to: telephone, internet, television and all wireless communications. Access to the data server room shall be allowed only as authorized by Deschutes County Information Technology Services. All such installations shall be coordinated with Deschutes County Information Technology Services. 10. Liens. a) Except with respect to activities for which the Licensor is responsible, the Licensee shall pay as due all property taxes, as may be applicable, all claims for work done on and for services rendered or material furnished to the licensed premises and shall keep the property free from any liens. If Licensee fails to pay any such claims or to discharge any lien, Licensor may do so and collect the cost from Licensee. Any amount so expended shall bear interest at the rate of nine percent (9%) per annum from the date expended by Licensor and shall be payable on demand. Such action by Licensor shall not constitute a waiver of any right or remedy which Licensor may have on account of Licensee's default. b) Licensee may withhold payment of any claim in connection with a good faith dispute over the obligation to pay, so long as Licensor's property interests are not jeopardized. If a lien is filed as a result of nonpayment, Licensee shall, within thirty (30) days after knowledge of the filing, secure the discharge of the lien or deposit with Licensor cash or a sufficient corporate surety bond or other surety satisfactory to Licensor in an amount DC 2018-020 Page 5 of 9 sufficient to discharge the lien plus any costs, attorney fees and other charges that could accrue as a result of a foreclosure or sale under a lien. 11. Insurance. a) It is expressly understood that Licensor shall not be responsible for carrying insurance on any property owned by Licensee. b) Licensee will be required to carry fire and casualty insurance on Licensee's personal property on the Premises. c) Licensor will carry fire and casualty insurance only on the structure where Premises are located. d) Subject to the limitations and conditions of the Oregon Tort Claims Act, ORS 30.260 through 30.300, and the Oregon Constitution, Article XI, Section 7, Licensee shall carry commercial general liability insurance, on an occurrence basis with a combined single limit of not Tess than limitations set forth in ORS 30.272. Licensee may fulfill its obligations through a program of self-insurance pursuant to applicable law. Licensee shall provide Licensor with a certificate of insurance, as well as an endorsement, naming Deschutes County, its officers, agents, employees and volunteers as an additional insured. There shall be no cancellation, termination, material change, or reduction of limits of the insurance coverage during the term of this License. e) As applicable, Licensee shall provide to Licensor proof of workers compensation insurance or a legally established program of self-insurance for workers compensation claims. f) Indemnification: Licensor and Licensee shall each be responsible for and defend, indemnify and hold the other harmless for losses, costs or claims due to the negligent and wrongful acts of their employees, agents and invitees. Licensor's liability exposure is limited by the Oregon Constitution, Article XI, and Oregon Revised Statutes 30.260 through 30.300. 12. Casualty Damage. If the Premises or improvements thereon are damaged or destroyed by fire or other casualty to such a degree that the Premises are unusable for the purpose Licensed, and if repairs cannot reasonably by made within ninety (90) days, Licensee may elect to cancel this License. Licensor shall in all cases promptly repair the damage or ascertain whether repairs can be made within ninety (90) days, and shall promptly notify Licensee of the time required to complete the necessary repairs or reconstruction. If Licensor's estimate for repair is greater than ninety (90) days, then Licensee, upon receiving said estimate will have twenty (20) days after such notice in which to cancel this License. Following damage, and including any period of repair, Licensee's rental obligation shall be reduced to the extent the Premises cannot reasonably be used by Licensee. 13. Surrender of Licensed Premises. Upon abandonment, termination, revocation or cancellation of this License or the surrender of occupancy of any portion of or structure on the Licensed premises, the Licensee shall surrender the real property or portion thereof to Licensor in the same condition as the real property was on the date of possession, fair wear and tear excepted, except, that nothing in this License shall be construed as to relieve Licensee of Licensee's affirmative obligation to surrender said premises in a condition which complies with all local, state or federal environmental laws, regulations DC 2018-020 Page 6 of 9 and orders applicable at the time of surrender that was caused by Licensee or occurred during the term of this License. Upon Licensor's written approval, Licensee may leave site improvements authorized by any land use or building permit. Licensee's obligation to observe and perform this covenant shall survive the expiration or the termination of the License. 14. Nonwaiver. Waiver by either party of strict performance of any provision of this License shall not be a waiver of or prejudice of the party's right to require strict performance of the same provision in the future or of any other provision. 15. Default. Neither party shall be in default under this License until written notice of its unperformed obligation has been given and that obligation remains unperformed after notice for fifteen (15) days in the case of the payment or for thirty (30) days in the case of other obligations. If the obligation (other than payment) cannot be performed within the thirty -day period, there shall be no default if the responsible party commences a good faith effort to perform the obligation within such period and continues diligently to complete performance. In case of default the non -defaulting party may terminate this License with thirty (30) days' notice in writing to the defaulting party, shall be entitled to recover damages or any other remedy provided by applicable law, or may elect to perform the defaulting party's obligation. The cost of such performance shall be immediately recoverable from the defaulting party plus interest at the legal rate for judgment. If Licensee makes any such expenditures as the non -defaulting party, those expenditures may be applied to monthly rent payments(s). 16. Notices. Notices between the parties shall be in writing, effective when personally delivered to the address specified herein, or if mailed, effective 48 hours following mailing to the address for such party specified below or such other address as either party may specify by notice to the other: Licensor: Deschutes County Property Management James Lewis, Property Manager 14 NW Kearney Avenue Bend, Oregon 97701 Phone: 541-385-1414 James. LewisCa�deschutes.orq Licensee: Mosaic Medical Steve Strang, CFO 600 SW Columbia Street, Suite 6210 Bend, OR 97702 541-408-9567 steve.strang ..mosaicmedical.orq Mail to: P.O. Box 6005 Bend, OR 97708 17. Assignment. Licensee shall not assign or sub -rent the premises without the prior written consent of the Licensor. 18. Attorneys' Fees. In the event a suit or action of any kind is instituted on behalf of either party to obtain performance under this License or to enforce any rights or obligations arising from this License, each party will be responsible for paying its own attorney fees. DC 2018-020 Page 7 of 9 19. Authority. The signatories to this agreement covenant that they possess the legal authority to bind their respective principals to the terms, provisions and obligations contained within this agreement. 20. MERGER. THIS LICENSE CONSTITUTES THE ENTIRE LICENSE BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS LICENSE SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS LICENSE. LICENSOR, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT LICENSOR HAS READ THIS LICENSE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSOR: Dated this day of , 2018 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, CHAIR ATTEST: PHILIP G. HENDERSON, VICE -CHAIR Recording Secretary TAMMY BANEY, COMMISSIONER STATE OF OREGON ) ) ss. County of Deschutes ) Before me, a Notary Public, personally appeared ANTHONY DEBONE, PHILIP G. HENDERSON and TAMMY BANEY the above-named Board of County Commissioners of Deschutes County, Oregon and acknowledged the foregoing instrument on behalf of Deschutes County, Oregon. DATED this day of Notary Public for Oregon DC 2018-020 My Commission Expires: MORE SIGNATURES FOLLOW Page 8 of 9 LICENSEE: Dated this day of STATE OF OREGON County of Deschutes Before me, a Medical, and DATED this , 2018 MOSAIC MEDICAL By Megan Haase, CEO Mosaic Medical ) ss. Notary Public, personally appeared MEGAN HAASE the above-named CEO of Mosaic acknowledged the foregoing instrument on behalf of Mosaic Medical. day of My Commission Expires: Notary Public for Oregon DC 2018-020 Page 9 of 9 EXHIBIT "A" R„ VIEWED L GAL COOL Memorandum of Understanding Deschutes County Health Services And Mosaic Medical For Recording Stamp Only the purpose of this Memorandum of Understanding (MOU) is to identify care coordination expectations and to set forth the responsibilities of Deschutes County, a political subdivision of the State of Oregon, acting by and through Deschutes County Health Services, and Mosaic Medical, a Federally -Qualified Health Center, collectively referred to as "Agency" or "Agencies." The spirit of this MOU is one of partnership and collaboration while assisting in facilitation of wellness and recovery. DEFINITION OF PROGRAM Deschutes County Health Services ("DCHS') and Mosaic Medical (MM) have agreed to co -locate to provide care for interested clients at the DCHS Courtney Drive clinic location, 2577 NE Courtney Drive, Bend, OR 97701. TERM AND TERMINATION 1. Agencies' agree that the effective date of this MOU is March 1, 2018 unless renewed or terminated pursuant to items 2 and 3 below this MOU shall automatically renew under the same terms and conditions until June 30, 2023 2. Either party may terminate this MOU at any time for any cause with a sixty (60) day written notice. 3. The written notice will be deposited with the United States Postal Service; either registered or certified, postage prepaid, or can be personally delivered to the addresses listed below: Mosaic Medical Mosaic Medical 2965 NE Connors Ave., Suite 280 Bend, OR 97701 Attn: Steve Strang Phone: 541-408-9491 Fax: 541-383-1883 Lsteve.strana mosaicmedical.orq RESPONSIBILITIES OF EACH AGENCY Deschutes County Deschutes County Health Services 2577 NE Courtney Drive Bend, OR 97701 Attn: George Conway Phone: 541-322-7502 Fax: 541-322-7565 george. conway@deschutes.org 1. Each Agency agrees to receive, or otherwise have access to, certain information that is confidential in accordance with state and federal law, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder, as may be amended from time to time (collectively "HIPAA") and the federal Health Information Technology for Economic and Clinical Health Act (the "HITECH Act"). 2. When requesting information regarding a client/patient, both Agencies agree to obtain appropriate authorization for the release of information from the client/patient in accordance with ORS 179.505, HIPAA and 42 CFR part 2. 3. Each Agency will access protected health information of the mutual client/patient only upon direct request by the provider that is providing, or has provided, care to that client/patient. In the case where direct provider request is not documented, both Agency's agree to recognize the appropriate authorization for the release of information from the client/patient in accordance with ORS 179 505, HIPAA, and 42 CFR part 2. 4. Each Agency is responsible for their own acts, omissions, and liabilities and assumes full responsibility for the actions of such their own officials, employees, and agents Each Agency shall defend, indemnify, and hold harmless the other Agency for claims arising from the actions of the Agency, its officials, employees and agents. Deschutes County Health Services- Memoradum of Understanding I Page11 5. Any compliance issues, complaints or conflicts between Agencies related to this MOU and not resolved through initial discussion between the Agencies shall be submitted in writing to DCHS Health Services Director and the Chief Medical Officer of Mosaic Medical. The DCHS Director and MM Chief Medical Officer will conduct fact finding and facilitate a compromise andtor initiate mediation, RESPONSIBILITIES OF DESCHUTES COUNTY HEALTH SERVICES (DCHS1 1. Coordinate and manage care of mutual clients including service transition 2. Provide services consistent with requirements of privacy, confidentiality and consumer preference. 3. Participate in joint multidisciplinary efforts. 4. Provide relevant information around new developments and changes pertinent to integrated patient health care. 5. Endeavor to understand partner agency culture, philosophy and rules of operation. RESPONSIBILITIES OF MOSAIC MEDICAL 1. Provide primary health care for mutual and exclusive clients 2. Have a Primary Care Provider onsite for a minimum of 20 hours per week. 3. Coordinate and manage care of mutual clients including service transition . 4. Coordinate and manage internal MM transfers as appropriate. 5. Provide Primary Care Provider (PCP), nursing and medical assistant staff. 6. Provide services consistent with requirements of privacy and confidentiality. 7. Participate in joint multidisciplinary efforts. 8. Provide relevant information around new developments and changes pertinent to integrated patient health care. 9. Endeavor to understand partner agency culture, philosophy and rules of operation. This MOU is executed on behalf of the Deschutes County Health Services, and Mosaic Medical through the undersigned representatives. George o way, Director Deschutes Counalth Seryices I zJ I! 7 (hate 12'j 11; - Megan Haase, CEO Date Mosaic Medical Deschutes County Health Services— Memoradum of Understanding Page 2 w 0 011111111111111,111111141111 To: Board of County Commissioners From: George A. Conway, MD, MPH Health Services Director Date: January 5, 2018 Re: Mosaic Medical License Agreement Request: Deschutes County Health Services (DCHS) requests approval from the Board of County Commissioners for the Mosaic Medical license agreement with Deschutes County. Overview of Request: Mosaic Medical is a Federally Qualified Health Center (FQHC) with primary care clinics in Bend, Redmond, Madras and Prineville, four School -Based Health Centers (SBHC), and a Mobile Community Clinic. Deschutes County Health Services and Mosaic Medical have a history of collaborative projects that include Harriman Health Care, Bridges Clinic, and four SBHCs (Redmond High School, Lynch Elementary, Ensworth Elementary, and Bend High School). Partners are not charged rent for space and see patients with behavioral health needs. These projects have brought about positive outcomes such as decreased psychiatric hospitalization, decreased emergency room use, and increased access to medical care. The Courtney Integration Project seeks to enhance collaboration between Mosaic and DCHS. The presence of an integrated Mosaic clinic will allow individuals served by DCHS easier access to health care, earlier identification of behavioral health and/or public health needs, coordination of complex care cases, and increased quality of care through cross training of staff. Additional benefits include support for new Oregon Health Authority Quality Improvement Measures for both behavioral health and public health: • Decrease emergency department utilization for medical reasons by individuals with behavioral health diagnoses • Increase immunization rates of two year olds Memorandum Re: Mosaic Medical License Agreement Page 1 of 3 Why an FQHC? FQHCs, including Mosaic Medical, are Safety Net Providers. As a FQHC/Safety Net Provider, Mosaic is required by the Health Resources & Services Administration (HRSA) to offer outpatient medical services to all persons, regardless of their ability to pay and to have a sliding fee discount program. Other medical providers/clinics do not have these requirements. DCHS is also a Safety Net Provider. Together the two entities represent the outpatient safety net services for the community. HRSA is part of the U. S. Department of Health and Human Services. It is the "primary federal agency for improving health care to people who are geographically isolated, economically or medically vulnerable." FQHCs receive special funding through HRSA, referred to as PPS rate or wraparound funding, to help with the cost of uncompensated care. This is what allows them to offer services regardless of ability to pay and to have a sliding fee scale. HRSA describes Federally Qualified Health Centers as "community-based health care providers that receive funds from the HRSA Health Center Program to provide primary care services in underserved areas. They must meet a stringent set of requirements including: • Offer services to all persons, regardless of the person's ability to pay • Establish a sliding fee discount program • Be a nonprofit or public organization • Be community-based, with the majority of their governing board of directors composed of their patients • Serve a medically underserved area or population • Provide comprehensive primary care services • Have an ongoing quality assurance program" Current Mosaic Medical — Deschutes County Health Services Collaboration Mosaic Medical has FQHC primary care clinics in Bend, Redmond, Madras and Prineville, four School -Based Health Centers, and a Mobile Community Clinic. Two of Mosaic Medical primary care clinics include collaboration with DCHS-BH: Harriman Health Care (HHC) and Bridges Clinic. • Harriman Health Care involves the co -location of Mosaic Medical at a DCHS site. Outcomes from the HHC integration include: o 41% decrease in psychiatric hospitalizations o 20% decrease in emergency room use o Medical appointment attendance increased from 13% to 72% due to having an integrated location. Attendance further increased to 92% with peer and case management supports. • Bridges Clinic involves DCHS providing co -located services at a Mosaic Medical site. Outcomes from the Bridges integration include: o 82% decrease in emergency room use (12 individuals had 100% decrease) o Increased engagement of high risk clients in behavioral health services Memorandum Re: Mosaic Medical License Agreement Page 2 of 3 The four School Based Health Centers are another collaborative partnership between DCHS and Mosaic Medical. The SBHCs are located at Redmond High School, Lynch Elementary, Ensworth Elementary, and Bend High School. Mosaic Medical functions as the "medical sponsor" and provides primary care services. DCHS provides behavioral health services. At these four schools the percent of the population who are economically disadvantaged ranges from 36% to 85%. The Courtney Integration Project will provide behavioral health (mental health and substance use disorder), public health (WIC and Maternal and Child Health) and primary care services all under one roof. This creates convenient access for county residents and improved quality of care. Each partner will continue to provide their full array of services while engaging in increased coordination of care and integrated service provision. Advantages include: • For individuals currently receiving Public Health services: Easier access to immunizations, coordinating access to primary care if they are not currently receiving it, and the opportunity to receive services at a single location • For individuals receiving Behavioral Health services: coordinating access to primary care if they are not currently receiving it, support to individuals who avoid primary care due to negative historic experiences, and the opportunity to receive services at a single location • For individuals receiving primary care services: Mosaic's primary care physicians have access to behavioral health supports (clinicians and psychiatrists) when their screenings identify a patient with serious behavioral health challenges, increase successful referrals through "warm handoffs," and patients with young children can be connected to WIC resources and Maternal and Child Health services at a single location. • For individuals receiving primary care and Behavioral Health services: Service providers will have consistent communication regarding care being provided, complex case coordination, greater coordination regarding medication prescribing, more comprehensive supports for Medication Assisted Therapy (MAT) recipients, and co -facilitation of treatment groups. Memorandum Re: Mosaic Medical License Agreement Page 3 of 3 Benefits of Partnerships Between FQHC and Health Departments Partnership Benefits'. The potential benefits of FQHC-LHD partnerships extend beyond the four walls of the exam room and into the greater community. Partnerships put the well-being of a community into greater focus with overall goals to improve access to care, improve health outcomes, and decrease health disparities. Specifically, an FQHC-LHD partnership may: Systems of Care • Enhance the capacity of community providers to provide value, high quality, cost-effective medical homes for vulnerable populations. • Assist low-income individuals to access the full range of safety net services and public benefits available in the community (e.g., food stamps, substance abuse counseling, Medicaid eligibility, and other social services). • Generate more positive patient and community experiences of care and engagement in health. Resources • Help to avoid the unnecessary duplication of services, lowering the costs of providing care and ultimately strengthening the existing safety net delivery system. • Reduce the need for more expensive in-patient and specialty care services as well as emergency room visits, resulting in significant savings to a community's health care system. • Allow limited federal, state and local resources to be targeted and allocated to areas that most require them. Clinical Outcomes • Reduce chronic disease through the reduction of risk factors, such as smoking. • Reduce the spread of infectious disease in the community. • Improve immunization rates against vaccine - preventable diseases. • Improve access to prenatal care; educate women about well -baby care, childhood immunizations, and nutrition; prevent mother - to -baby transmission of HIV; and decrease premature birth and morbidity. Public Health Monitoring • Support comprehensive community public health assessments through collaboration and sharing of surveillance and other population - based data. • Allow providers to gather vital patient level data through disease registries. • Facilitate the partner notification process for HIV and other sexually transmitted diseases. 1PartnershiDs between Federally Qualified Health Centers and Local Health Departments for Engaging in the Development of a Community - Based System of Care October 2010 2Healthcare Savings and Cost Effectiveness Due to their locations and mission to reach the underserved, CHCs [Community Health Center] provide a viable and cost-effective alternative to episodic care. Their availability to the underserved and success in providing preventive services result in considerable savings, which NACHC estimates at $1,263 per patient per year, as illustrated in Figure 2. CHCs help lower expensive visits to emergency departments, as well as assist patients in effectively managing chronic disease, which reduces the need for more expensive specialty care down the road. 2ASTHO brief, "Public Health and Community Health Centers 101" $6,000 $5,000 $4,000 $3,000 $2,000 $1,000 $0 Health Centers Save $1,263 Per Patient Per Year $4,043 $5,306 Health Center Users Non -Health Center Users o Hospital Emergency Department C3 Hospital Inpatient ■ Ambulatory or Other Services Se,,, NACHO en al,sis Eased on Nu 4.14 Using 14...r) Cotolo Bond MO Cone Eat.Eng11. Impost ofn14411114.44.1 E,gns44 on 44.11.E 4.14 4oa11 GNU 0.4.44 ent d I4e41111 P44/ Policy Resratsh (Me/ No 14 SapMma 2043_ Figure 2: NACHC. "A Sketch of Community Health Centers." Available at http://www.nachc.com/client//Chartbook_December_2014.pdf. 1/1/2018 H:\My Documents \ ADMINISTRATION \Board of County Commissioners \BoCC Agenda Requests\Mosaic Lease 01 10 2018\Benefits of Partnerships Between FQHCs and Health Departments.docx Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of January 10, 2018 DATE: January 5, 2018 FROM: Matthew Martin, Community Development, 541-330-4620 TITLE OF AGENDA ITEM: Discussion: Water Law and Marijuana ATTENDANCE: Matthew Martin, Senior Planner SUMMARY: The Board of County Commissioners (Board) is conducting a series of work sessions with state agencies and law enforcement as part of the County's marijuana evaluation program. This work session focuses on water law and marijuana. The Board will meet with the following representatives: • Kyle Gorman - South Central Regional Manager, Oregon Water Resource Department • Chris Schull - Watermaster, Tumalo Irrigation District • Leslie Clark - Water Rights Manager, Central Oregon Irrigation District Community Development Department Planning Division Building Safety Division Environrnenlal Soils Division P.O. Box 6045 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541) 388-6575 Fax (541) 385-1764 http://www.cleschutes.org/ed MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Matthew Martin, AICP, Senior Planner DATE: January 10, 2018 SUBJECT: Water Law and Marijuana The Board of County Commissioners (Board) is conducting a series of work sessions with state agencies and law enforcement as part of the County's marijuana evaluation program. This work session focuses on water law and marijuana. The Board will meet with the following representatives: • Kyle Gorman - South Central Regional Manager, Oregon Water Resource Department • Chris Schull — Watermaster, Tumalo Irrigation District • Leslie Clark - Water Rights Manager, Central Oregon Irrigation District Attached is a handout provided by OWRD to prepare for this meeting In addition to this meeting, work sessions are planned with: • Deschutes County Sherriff's Office, District Attorney, Code Enforcement (tentatively scheduled for Jan. 22); • Oregon Department of Agriculture rescheduled for Jan. 17 from December 27; and • Oregon Liquor Control Commission on Jan. 29 Attachments: OWRD Marijuana Handout Quality Service's 7:iitl: Pride Understanding Water -Use Regulations: Medical and Recreational Marijuana 7!e Marijuana -related water use is subject to the same water -use regulations as any other irrigated crop. Under the Oregon Water Code of 1909, all water belongs to the public. With a few exceptions, cities, irrigators, businesses, and other water users must obtain a water right from the Water Resources Department to use water from any source — whether it is underground, or from lakes or streams. Generally speaking, landowners with water flowing past, through, or under their property do not automatically have the right to use that water without authorization from the Department. New water permits are not available in many areas of Oregon, so individuals are strongly encouraged to investigate their water -resources options before investing in a project that requires a water supply. Violations of Oregon Water laws can result in civil penalties or prosecution for a class B misdemeanor. The best way to identify your legal water resources options is to speak with your local watermaster (see next page). For more information, you can contact the Department at 503-986-0900, or visit our website at htto://www.oreaon.slov/owrd. What are the water -use authorization options? 1. A water right may already be associated with your property; however, you will need to confirm that the right is still valid, and that it can be used for your purposes. Similarly, water may be obtained from a water purveyor such as a city or a water district that delivers water under an existing water right. 2. If available, water may be acquired by obtaining a new water -right permit for surface water or groundwater. 3. Certain water uses are authorized through Oregon law as "exempt" from the need for a water right. More information about exempt uses is provided below. Check with your watermaster to make sure your use qualifies. 4. There can be other options to obtain water aside from obtaining a new right to surface water or groundwater. In some cases, with Department approval, a water right from another property can be transferred to a new parcel, or stored water that is captured during the winter and spring can help provide a supply. Talk to your watermaster about options. What else should you know about the use of your water right? Once you have a water right, make sure that you comply with the conditions on the right. It is always a good idea to check with your watermaster to understand the conditions. Water rights are issued for a particular place of use, type of use, and point of diversion. Water rights also have limits on the amount of water that can be used, and may include limitations on the season of use. Your watermaster can help you to understand the terms of use on your water right. If you want to change how the water is being used (for example, from field irrigation to a greenhouse), check with your watermaster to make sure that the change fits within your existing water right. In some instances you may need to obtain approval from the Department through a process called a transfer. In addition, there may be limits on the months that the water can be used. Water rights may be subject to forfeiture if not used for five consecutive years. In addition, there may be times where there is not enough water for every water user who holds a water right. In times of shortage, the senior user is entitled to receive all of his or her water, before a junior user. For example, a senior user with a priority date of 1910 can make a call for water, and users with a junior date (after 1910 for this example) may be regulated off in order to satisfy that senior right. You should talk with your local watermaster to understand how frequently regulation is likely to occur, so that you can plan your operations accordingly. Note: Although exempt groundwater uses do not require a permit, the well may be subject to regulation like any other water right in times of water shortage. How do I obtain a water right permit in the State of Oregon? Most water rights are obtained in a three-step process. The applicant first must apply to the Department for a permit to use water. Once a permit is granted, the applicant must construct a water system and begin using water. After water is applied, the permit holder must hire a certified water -right examiner to complete a survey of water use (a map and a report detailing how and where water has been applied). If water has been used according to the provisions of the permit, the Department will issue a water -right certificate. 10/09/2015 What sources of water are exempt from the permitting process and how can the water be used? • Natural springs: Use of a spring that, under natural conditions, does not form a natural channel and flow off the property where it originates at any time of the year is considered exempt from the need to obtain a water right. Check with your watermaster to determine if your spring qualifies for the exemption. • Rainwater: Collection and use of rainwater from an artificial impervious surface, such as a roof, is considered exempt from needing a water -right. For more information, refer to ORS 537.141. Check with your watermaster to snake sure that your rainwater system is properly set up to meet this exemption. You may also need to check on local regulations with your county and/or city. • Exempt use of groundwater for non -irrigation -related commercial/industrial purposes: Under the exemption, up to 5,000 gallons per day could be used for commercial or industrial use without a water right. This would include processing marijuana; however, this exemption does not include water to promote plant growth/cultivation. • Exempt use of groundwater for one-half acre of non-commercial lawn and garden: Water for cultivation/growth of marijuana, whether in a greenhouse or not, does not require a water right permit provided that the irrigation is no more than one-half acre in area AND the cultivation is non- commercial. Use of groundwater to grow marijuana plants where there is intent to profit does not qualib> for a groundwater exemption. Non- commercial includes homegrown recreational marijuana and medical marijuana for personal use, or where there is no intent to profit. Medical growers that seek to make a profit from medical or recreational marijuana are not eligible for this exemption. For example, an individual that grows marijuana and donates it to patients and dispensaries could qualify for the exemption. Conversely, an individual that grows marijuana and is reimbursed for the costs of the production and labor — intending to make money — would not qualify. NOTE: This is not a complete list of exemptions, but rather lists those most pertinent to the growth and production of marijuana. Like any crop, the growth of marijuana for commercial purposes, whether medical or recreational, is not eligible for groundwater exemptions. Can water be obtained from a federal water project? The federal government is responsible for determining whether water from their projects can be used to grow marijuana. Previous statements by the federal government indicate that use of Bureau of Reclamation water for the purpose of growing marijuana is prohibited. Contact the Bureau of Reclamation or your irrigation district for more information. Who is my watermaster? District 1 District 2 District 3 District 4 District 5 District 6 District 7 District 8 District 9 District 10 District 11 District 12 District 13 District 14 District 15 District 16 District 17 District 18 District 19 District 20 District 21 10/09/2015 Nikki I-Iendricks Michael Mattick Robert Wood Eric Julsrud Cirea Silbernaael Shad 1 lattan David Bates Rick Lusk. Ron Jacobs JR Johnson Jeremy Giffin Brian Mayer Travis Kelly Kathy Smith Susan Douthit Joel Plahn Scott White Jake (:;onstans Circa Wacker Amy Kim Ken Thiemann 503-815-1967 541-682-3620 541-506-2652 541-575-0119 541-278-5456 541-963-1031 541-426-4464 541-523-8224 541-473-5130 541-573-2591 541-306-6885 541-947-6038 541-774-6880 541-479-2401 541-440-4255 503-986-0889 541-883-4182 503-846-7780 541-396-1905 503-722-1410 541-384-4207 Map of Watermaster Districts t. aA H 1' It. 11' E S1' g�r . 2 „r ItAXA n:ii°'f'S1 J REGtON A lu E.'Sfl; xN RE(I;i)N Y,l Ilk N I' l' .l tl .1 Deschutes County Board of Commissioners Work Session: Water Law and Marijuana Potential Questions 1. With regard to water rights and water use, in your profession are marijuana growing and processing treated differently than other similar uses? If so, please describe. 2. Does water law differ for various marijuana uses? If so, please describe. a. Personal recreational growing b. Medical marijuana growing c. Medical marijuana processing d. Recreational marijuana growing e. Recreational marijuana processing 3. Can ground water sources (wells) be used for marijuana growing? If so: a. Is there a difference between personal grows and commercial grows? b. Are impacts on localized ground water assessed when water rights are transferred? If not, why? If so: i. Are any localized tests conducted? ii. What data is relied upon? iii. How is/was the data gathered? iv. Is the data available to the public? c. What is drawdown and how is it being addressed? d. Is the right to use water from an underground aquifer governed by the same 'first in time' or prior appropriation rules as surface water diversions? e. If water levels drop requiring deepening of a well, who bears the cost? 4. What are the process and standards that apply to transferring water rights including change from non-commercial to commercial use? 5. How is water usage monitored and enforced? If a violation is found, how is addressed/penalized? 6. Several marijuana producers have proposed the use of water haulers to provide delivery of water to serve the operation. a. How are water haulers regulated and sources verified? b. Is it common for farmers to utilize water haulers outside of irrigation seasons? 7. Please describe a nursery water right. a. How does it differ from other water rights? b. How does it apply to marijuana cultivation? i. Which subtype of nursery use applies to indoor grows in Deschutes County? 8. What are federal limitations on distribution of water rights to marijuana related uses? 9. What impacts, if any, has the county placed on your operations by requiring a will -serve letter from you? 10. How is public notice provided when a water rights transfer is proposed? � J� i5 `Doe)3 �y OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN ®® ®Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. 45.7 FUTURE MEETINGS: Additional meeting dates available at www.deschutes.ora/meetinacalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, January 10, 2018 Page 2 of 2 YLL,-Vo-L, Cly A(.6\r- \\\I\cv, -2, 3\ 0 J\z6 cu -c_ ,/ W )11)( (4 4-kt Afwtge,Ait4v4frLi 4 qnv- CtALet w;,&? ,gt,t-oeiAs 41071-0:00 140(4,s OfVk geyJcw- OAtk o& -\)(,\AS-yAus7 ____4;c e 1)o_c z LO c-Qx-t-r__ U -t}14---f Di-e-Le--J-0--t(12,00a-7LA CO 0 i1>ove, of Ln on 26.)' ct. e do e, boo P6- ) cAcx.-1-n At +ran 5 autzd 5 onte. (:P j-rou.not.0.,-wv � w a, a/ or 9 r-e-e-rt.. 9 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 Work Session of January 10, 2018 DATE: January 5, 2018 FROM: Caroline House, Community Development, 541-317-3148 TITLE OF AGENDA ITEM: Possible Marijuana Production Appeal - Subject Property of 22160 Highway 20, Bend BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners is a possible appeal to the administrative decision approving a marijuana production facility in the Exclusive Farm Use Zone. The Board will consider Order No. 2018-003 and whether to call up the matter for review if the decision is appealed. See attached staff administrative decision for further background information. FISCAL IMPLICATIONS: None ATTENDANCE: Caroline House, Assistant Planner Mailing Date: Thursday, January 04, 2018 1 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (W) 388-6575 Fax: (541) 385-1764 http://www,deschutes.orgg/cd FINDINGS & DECISION FILE NUMBERS: 247 -17 -000784 -AD / 247 -17 -000778 -LM APPLICANT/OWNER: Brian & Megan Luksich 3253 E 94th Drive Thornton, CO 80229 PROPOSAL: The applicant requests approval of an Administrative Determination to establish a marijuana production facility (grow) in the Exclusive Farm Use Zone (EFU). STAFF CONTACT: Caroline House, Assistant Planner I. APPLICABLE CRITERIA: Deschutes County Code: Title 18, Deschutes County Zoning Ordinance Chapter 18.04. Title, Purpose and Definitions Chapter 18.16. Exclusive Farm Use Zones Chapter 18.80. Airport Safety Combining Zone (AS) Chapter 18.84. Landscape Management Combining Zone (LM) Chapter 18.116. Supplementary Provisions Title 22, Deschutes County Development Procedures Ordinance II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 22160 Highway 20, Bend, OR 97701; and is further identified on the County Assessor's Map No. 17-13- 31C, as tax lot 100. B. LOT OF RECORD: The subject property is a legal lot of record as it is platted as Parcel 1 of MP -84-18. C. ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB) and is also in the Airport Safety and Landscape Management Combining Zones. The subject property is designated agricultural in the Deschutes County Comprehensive Plan. Q aliti Services Pei with Pride D. SITE DESCRIPTION: The subject property is +/- 8.92 acres in size and is irregular in shape. The majority of the property appears to be irrigated pasture. The property is developed with a single-family dwelling, two (2) agricultural buildings, and an irrigation pond. The area to the south of dwelling appears to be landscaped with mature and immature trees. In addition, the north property line appears to have juniper tree cover planted for screening purposes. The site is accessed via two (2) gravel driveways extending north from Highway 20. The property is currently receiving special assessment for farm tax deferral. E. PROPOSAL: The applicant proposes to establish a recreational marijuana production facility on the north -central area of the subject property (reference Figure 1 below). The proposed use will be sited within two (2) existing agricultural buildings that will be remodeled. The proposed remodel will connect the two structures to create one (1) +/- 2,860 -square -foot structure. The applicant proposes a mature canopy area of 1,802 square feet and the facility will be licensed by the Oregon Liquor Control Commission (OLCC). The proposed structure will be sited 26 feet from the north lot line. Resultantly, the applicant has requested a setback exception to the 100 -foot lot line setback requirement pursuant to DCC 18.116.330(B)(6)(c). Figure 1 —Location of Proposed Marijuana Production Use I Proposed Development I Area . c► o,,� i u -AU - ��ft as w �.--{�n�z►� c►t7�> © car► . _ �� _ - :�: ----� xa 1 i >ru..._ __ gyp 0-0 ni ' p 1 F. SURROUNDING LAND USES: The surrounding area to the west, north, and east is zoned Multiple Use Agricultural (MUA10). These properties appear to be residentially developed with some hobby farming occurring in the area as well. The surrounding area to the south is predominately zoned EFU with the exception of Misty Meadows subdivision and surrounding tax lots to the north, which are zoned MUA10. These properties appear to be developed with single-family dwellings and the larger properties appear to be engaged in farm use. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice of the applications to several agencies and received the following comments: 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 2 of 32 1. Central Electric Cooperative, Inc.: The following comments were received from Parneli Perkins, Lands Specialist: CEC requests the applicant apply for a new electrical service by calling 541-548-2144 and provide electrical load and demand requirements for this activity. CEC will determine if capacity is available. STAFF COMMENT: Based on the applicant's incomplete letter response, CEC confirmed the availability of electrical services for the proposed use (see findings below). 2. Central Oregon Irrigation District: The following comments were received from Daniel Downing, GIS / Operations Technician: COID FACILITIES: • None COID WATER RIGHTS: • Subject's property has 8.0 acres of COID water rights • Please contact COID concerning us[e] of water rights COID GUIDELINE STATEMENT: • Review the following page for COID comments on marijuana grown operations. COID response to Community Development Notice for Proposed Marijuana Production: Central Oregon Irrigation District (COID) serves this property with 8.0 acres of irrigation water during the irrigation season of April 1st through October 31st at a rate of up to 6 gallons per minute per acre. This water cannot be used for irrigation during the winter months. An additional source (not COID) of water is necessary to irrigate between November 1st and March 31st. If the recreational marijuana production facility is a greenhouse or other structure proposed to be built on top of the COID water right, land -user must allow COID annual access to the structure to document beneficial use of the water right. Structures on top of a water right for any purpose other than growing plants is not allowed. • Applicant should contact COID to determine status of water rights prior to construction of production facility • Plot Plan is required to assist COID in determining if the proposed structure will be located on the water right or if a water transfer application is needed to transfer water to it. 3. Deschutes County Assessor: The following comments were received from Nora Wallace, Assessment Tech III: 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 3 of 32 I am responding for the Assessor's office to the above captioned Notice of Application. The property is in farm deferral. 4. Deschutes County Building Division: The following comments were received from Randy Scheid, Deschutes County Building Official: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 5. Deschutes County Sheriffs Office: The following comments were received from Sheriff L. Shane Nelson: Our concern lies in the odor, sights, sounds, and set backs of the property in this type of request and how it affects the livability of our community members; in conjunction with the issue that marijuana is illegal on a federal level. In addition, we are finding calls for service related to marijuana grow operations are increasing. STAFF COMMENT: As addressed in the findings below, the applicant's proposal includes design/operating characteristics to address potential impacts associated with odor, lighting, noise, and setbacks. 6. Deschutes County Transportation Planning: The following comments were received from Peter Russell, Senior Transportation Planner: I have reviewed the transmittal materials for 247-17-000784-AD/778-LM for a marijuana production (growing) operation in the Exclusive Farm Use (EFU), Airport Safety (AS), and Landscape Management (LM) zones at 22160 Hwy 20, aka 17-13-31C, Tax Lot 100. Deschutes County Code (DCC) at 18.116.330(8)(8) only requires proof of legal direct access to the property or access from a private easement for a grow of more than 5,000 square feet of mature canopy. The proposal is for 1,802 square feet of mature canopy, so the access requirement does not apply. The traffic study requirements of DCC 18.116.310 are not applicable for a marijuana production application. Thus no traffic study can be required. The site is approximately 1,579 feet to the west of the Bend Municipal Airport's Runway Protection Zone (RPZ); none of the buildings will penetrate any imaginary surfaces of the Bend airport. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 4 of 32 Board Resolution 2013-020 sets an SDC rate of $3,937 per p.m. peak hour trip. The County uses the most recent edition of the Institute of Traffic Engineers (ITE) trip generation manual to assess SDCs. The ITE manual does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet. The applicant proposes approximately 2,769 square feet of building for the production and support of cannabis. The County's SDC is based on the building's total square footage related to cannabis production and support and not the square footage of the mature canopy. The 2,769 square feet will produce 0.87 p.m. peak hour trips (2.769 X 0.32). The resulting SDC is $3,425 (0.87 X $3,937). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. 7. Oregon Department of State Lands: The following comments were received from Christine Stevenson, Jurisdictional Specialist: Based on a review of the available information, adding a structure to connect the two [buildings] will not impact jurisdictional wetlands or waters. For your information, DSL wetland determinations are based on current conditions. Wetlands subject to DSL jurisdiction may be present in the irrigated pasture. A permit will be required for removal/fill activities that are 50 cubic yards or greater. 8. The following agencies did not respond or had no comments: Bend Fire Department, Bend Municipal Airport, Deschutes County Environmental Soils Division, Deschutes County Road Department, Oregon Department of Aviation, Oregon Department of Transportation, Oregon Liquor Control Commission (OLCC), Pacific Power & Light, and the Watermaster — District 11 H. PUBLIC COMMENTS: The Planning Division mailed a written notice of these applications to property owners within 750 feet of the subject property on October 4, 20171. In addition, the applicant submitted a Land Use Sign Affidavit indicating a proposed land use action sign was posted on the property on September 27, 2017. Staff has attempted to summarize requests, and concerns identified by the public in written comments received prior to the date of this decision: Opposition: 1. Odor impacts 2. Visual impacts 3. Noise impacts 4. Illegal application of irrigation water 5. Availability of a legal water source outside of the irrigation season 1 Notice of application was originally mailed on September 29, 2017. However, the contact information was revised and the notice was re -mailed on October 4, 2017. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 5 of 32 6. Contamination of irrigation water supply 7. Proximity of use to Highway 20 and Powell Butte Highway 8. Traffic impacts 9. Monitoring and verification the operator is within the approved limits of the land use decision 10. Illegal sale of the marijuana product 11. Increase in neighborhood crime and trespassing 12. Federal law should supersede state and local laws 13. Negative impact on property values 14. Increase of drug use and addictions problems 15. Changes to the rural character and livability of the neighborhood STAFF COMMENT: Applicable criteria of the DCC are addressed in the Basic Findings, Public Agency Comments, and the Conclusionary Findings. The Deschutes County Code (DCC) does not allow the Planning Division to approve or deny this application based on the concerns listed under 10 through 15 above. Support: 1. If this application is denied, neighbors might complain about similar farm use impacts, such as odor or noise from animals 2. DCC 9.12.080. Protection of Farm and Forest Uses on Lands Zoned for Resource Use voids DCC 18.116.330. Marijuana Production, Processing, and Retailing 3. The subject application should not be processed as a Land Use Action 4. Deschutes County Code standards exceed "reasonable" Time, Place, and Manner restrictions allowed by statute I. REVIEW PERIOD: The application was submitted on September 22, 2017. An incomplete letter was issued on October 20, 2017. Additional application materials were submitted on November 16, 2017 and November 20, 2017. The Planning Division deemed the application on November 20, 2017. The 150th day on which the County must take final action on this application is April 19, 2018. III. CONCLUSIONARY FINDINGS: Title 18 of the Deschutes County Code, County Zoning. A. CHAPTER 18.04. TITLE, PURPOSE AND DEFINITIONS. 1. Section 18.04.030. Definitions. "Marijuana" means the plant Cannabis family Cannabaceae, any part of the plant Cannabis family Cannabaceae, and the seeds of the plant Cannabis family Cannabaceae. Marijuana does not include industrial hemp as defined in Oregon Revised Statutes 571.300. "Marijuana production" means the manufacture, planting, cultivation, growing, trimming, harvesting, or drying of marijuana, provided that the marijuana producer is licensed by the Oregon Liquor Control Commission, or registered with the Oregon Health Authority and a 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 6 of 32 "person designated to produce marijuana by a registry identification cardholder." FINDING: The applicant proposes to establish a marijuana production facility on the subject property. The proposed marijuana production facility will be licensed by OLCC. B. CHAPTER 18.16. EXCLUSIVE FARM USE ZONES. 1. Section 18.16.020. Use Permitted Outright. The following uses and their accessory uses are permitted outright: S. Marijuana production, subject to the provisions of DCC 18.116.330. FINDING: The proposed marijuana production facility is a use that is permitted outright in the EFU Zone, subject to the provisions of DCC 18.116.330, which are addressed below. 2. 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The existing agricultural buildings have a maximum height of 16 feet. The applicant proposes to construct an addition connecting the two (2) agricultural buildings. The proposed addition will have a height of 10 feet. This criterion will be met. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of: 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. FINDING: The south property line has frontage on Highway 20, a designated arterial street, requiring a 100 -foot front yard setback. The northwest property line has frontage on Powell Butte Highway, a designated arterial street, requiring a 100 -foot front yard setback. The proposed structure will have at least a 300 -foot front yard setback from all front lot lines. This criterion will be met. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. FINDING: The north and west property lines are the side property lines. The required side yard setback is 25 feet. Based on a survey completed by Licensed Surveyor Daniel T. Burton, P.L.S., one (1) of the existing agricultural structures was constructed in the required side yard setback. Therefore, the applicant proposes to remove this area of the structure to 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 7 of 32 ensure the minimum side yard setback will be met. The proposed structure will have a 26 - foot setback from the north lot line and a side yard setback exceeding 900 feet from the west property line. A Condition of Approval has been added to ensure compliance. This criterion will be met. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. FINDING: A rear lot line is defined in DCC 18.04.030 as the lot line opposite and most distant from a front lot line. Therefore, staff finds the east property line is the rear lot line. The required rear yard setback is 25 feet. The proposed structure will have a 324 -foot rear yard setback. This criterion will be met. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. This criterion will be met. C. CHAPTER 18.80. AIRPORT SAFETY COMBINING ZONE. 1. Section 18.80.020. Application of Provisions. The provisions of DCC 18.80.020 shall only apply to unincorporated areas located under airport imaginary surfaces and zones, including approach surfaces, transitional surfaces, horizontal surfaces, conical surfaces and runway protection zones. While DCC 18.80 identifies dimensions for the entire imaginary surface and zone, parts of the surfaces and/or zones do not apply within the Redmond, Bend or Sisters Urban Growth Boundaries. The Redmond Airport is owned and operated by the City of Redmond, and located wholly within the Redmond City Limits. Imaginary surface dimensions vary for each airport covered by DCC 18.80.020. Based on the classification of each individual airport, only those portions (of the AS Zone) that overlay existing County zones are relevant. Public use airports covered by DCC 18.80.020 include Redmond Municipal, Bend Municipal, Sunriver and Sisters Eagle Air. Although it is a public -use airport, due to its size and other factors, the County treats land uses surrounding the Sisters Eagle Air Airport based on the ORS 836.608 requirements for private -use airports. The Oregon Department of Aviation is still studying what land use requirements will ultimately be applied to Sisters. However, contrary to the requirements of ORS 836.608, as will all public -use airports, federal law requires that the FAA 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 8 of 32 Part 77 surfaces must be applied. The private -use airports covered by DCC 18.80.020 include Cline Falls Airpark and Juniper Airpark. FINDING: The subject property lies under the imaginary surface of the Bend Airport. Therefore, the provisions of this chapter apply. 2. Section 18.80.028. Height Limitations. All uses permitted by the underlying zone shall comply with the height limitations in DCC 18.80.028. When height limitations of the underlying zone are more restrictive than those of this overlay zone, the underlying zone height limitations shall control. [ORS 836.619; OAR 660-013-0070] A. Except as provided in DCC 18.80.028(B) and (C), no structure or tree, plant or other object of natural growth shall penetrate an airport imaginary surface. [ORS 836.619; OAR 660-013-0070(1)] FINDING: The subject property is located under the conical surface of the Bend Airport. Staff finds the proposed 16 -foot structure does not penetrate the conical surface. This criterion will be met. B. For areas within airport imaginary surfaces but outside the approach and transition surfaces, where the terrain is at higher elevations than the airport runway surfaces such that existing structures and permitted development penetrate or would penetrate the airport imaginary surfaces, a local government may authorize structures up to 35 feet in height. FINDING: The existing agricultural buildings have a height of 16 feet. The applicant proposes to construct an addition connecting the two (2) agricultural buildings. The proposed addition will have a height of 10 feet. This criterion does not apply. C. Other height exceptions or variances may be permitted when supported in writing by the airport sponsor, the Department of Aviation and the FAA. Applications for height variances shall follow the procedures for other variances and shall be subject to such conditions and terms as recommended by the Department of Aviation and the FAA (for Redmond, Bend and Sunriver.) FINDING: No height exception or variance is requested by the applicant. This criterion does not apply. 3. Section 18.80.044. Land Use Compatibility. Applications for land use or building permits for properties within the boundaries of this overlay zone shall comply with the requirements of DCC 18.80 as provided herein. When compatibility issues arise, the Planning Director or Hearings Body is required to take actions that eliminate or minimize the incompatibility by choosing the most compatible location or design for the boundary or use. Where compatibility issues persist, despite actions or conditions intended to 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 9 of 32 eliminate or minimize the incompatibility, the Planning Director or Hearings Body may disallow the use or expansion, except where the action results in loss of current operational levels and/or the ability of the airport to grow to meet future community needs. Reasonable conditions to protect the public safety may be imposed by the Planning Director or Hearings Body. [ORS 836.619; ORS 836.623(1); OAR 660-013- 0080] A. Noise. Within airport noise impact boundaries, land uses shall be established consistent with the levels identified in OAR 660, Division 13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any subdivision or partition approval or other land use approval or building permit affecting land within airport noise impact boundaries, shall sign and record in the Deschutes County Book of Records, a Declaration of Anticipated Noise declaring that the applicant and his successors will not now, or in the future complain about the allowed airport activities at the adjacent airport. In areas where the noise level is anticipated to be at or above 55 Ldn, prior to issuance of a building permit for construction of a noise sensitive land use (real property normally used for sleeping or as a school, church, hospital, public library or similar use), the permit applicant shall be required to demonstrate that a noise abatement strategy will be incorporated into the building design that will achieve an indoor noise level equal to or less than 55 Ldn. [NOTE: FAA Order 5100.38A, Chapter 7 provides that interior noise levels should not exceed 45 decibels in all habitable zones.] FINDING: The subject property is not within the noise impact boundary associated with the Bend Airport. This criterion does not apply. B. Outdoor lighting. No new or expanded industrial, commercial or recreational use shall project lighting directly onto an existing runway or taxiway or into existing airport approach surfaces except where necessary for safe and convenient air travel. Lighting for these uses shall incorporate shielding in their designs to reflect light away from airport approach surfaces. No use shall imitate airport lighting or impede the ability of pilots to distinguish between airport lighting and other lighting. FINDING: The proposed marijuana production use is a farm use2. This criterion does not apply. C. Glare. No glare producing material, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of structures located within an approach surface or on nearby lands where glare could impede a pilot's vision. FINDING: The proposed structure will have asphalt shingle roofing and typical siding. Based 2 Reference ORS 475B.370(a). 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 10 of 32 on staff's review of the existing and proposed finishes, staff finds these materials will not produce glare that could impede a pilot's vision. This criterion will be met. D. Industrial emissions. No new industrial, mining or similar use, or expansion of an existing industrial, mining or similar use, shall, as part of its regular operations, cause emissions of smoke, dust or steam that could obscure visibility within airport approach surfaces, except upon demonstration, supported by substantial evidence, that mitigation measures imposed as approval conditions will reduce the potential for safety risk or incompatibility with airport operations to an insignificant level. The review authority shall impose such conditions as necessary to ensure that the use does not obscure visibility. FINDING: The proposed marijuana production use is a farm use. This criterion does not apply. E. Communications Facilities and Electrical Interference. No use shall cause or create electrical interference with navigational signals or radio communications between an airport and aircraft. Proposals for the location of new or expanded radio, radiotelephone, and television transmission facilities and electrical transmission lines within this overlay zone shall be coordinated with the Department of Aviation and the FAA prior to approval. Approval of cellular and other telephone or radio communication towers on leased property located within airport imaginary surfaces shall be conditioned to require their removal within 90 days following the expiration of the lease agreement. A bond or other security shall be required to ensure this result. FINDING: The proposed marijuana production use will not cause or create electrical interference. This criterion will be met. F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach Surface, and Airport Direct and Secondary Impact Areas. For the Redmond, Bend, Sunriver, and Sisters airports, the land uses identified in DCC 18.80 Table 1, and their accessory uses, are permitted, permitted under limited circumstances, or prohibited in the manner therein described. In the event of conflict with the underlying zone, the more restrictive provisions shall control. As used in DCC 18.80.044, a limited use means a use that is allowed subject to special standards specific to that use. FINDING: The subject property is not located in the RPZ, Approach Surface, and Airport Direct3 and Secondary Impact4 Areas associated with the Bend Airport. This criterion does 3 The area located within 5,000 feet of an airport runway, excluding lands within the runway protection zone and approach surface. (Redmond, Bend, and Sunriver) 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 11 of 32 not apply. D. CHAPTER 18.84. LANDSCAPE MANAGEMENT COMBINING ZONE 1. Section 18.84.020. Application of Provisions. The provisions of DCC 18.84 shall apply to all areas within one-fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of DCC 18.84 shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified as landscape management corridors in the comprehensive plan and the County Zoning Map. The distance specified above shall be measured horizontally from the center line of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitations in DCC 18.84.20 shall not unduly restrict accepted agricultural practices. FINDING: Highway 20 is identified in the Comprehensive Plan and the County Zoning Map as a Landscape Management feature. The subject property falls entirely within the Highway 20 Landscape Management Combining Zone. Therefore, the provisions of this chapter apply. 2. Section 18.84.030. Uses Permitted Outright. Uses permitted in the underlying zone with which the LM Zone is combined shall be permitted in the LM Zone, subject to the provisions in DCC 18.84. FINDING: The applicant proposes to establish a marijuana production use. The proposed use is permitted outright in the underlying EFU Zone and, therefore, is also permitted outright in the LM Combining Zone. 3. Section 18.84.050. Use Limitations. A. Any new structure or substantial exterior alteration of a structure requiring a building permit or an agricultural structure within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial exterior alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. FINDING: The applicant proposes to construct an addition that will connect two existing agricultural buildings. The Deschutes County Assessor has a valuation of $18,240 and $20,670 for the existing agricultural structures. Staff finds the proposed alterations will exceed $9,727.50, or 25 percent of the assessed value of the structures. Therefore, the provisions of this chapter apply. 4 The area located between 5,000 and 10,000 feet from an airport runway. (Redmond, Bend, and Sunriver) 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 12 of 32 B. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the designated road, river or stream must meet setback standards of the underlying zone. FINDING: Based on a staff site visit and the submitted application materials, the proposed structure will be visible from Highway 20. Therefore, staff finds the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks) apply. 4. Section 18.84.080. Desian Review Standards. The following standards will be used to evaluate the proposed site plan: A. Except as necessary for construction of access roads, building pads, septic drainfields, public utility easements, parking areas, etc., the existing tree and shrub cover screening the development from the designated road, river, or stream shall be retained. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act, or agricultural use of the land. FINDING: Based on a staff site visit and the submitted application materials, there is moderate vegetative cover, consisting of juniper and coniferous trees, planted along the southern boundary partially screening the proposed development from Highway 20. The construction of the proposed structure may require the removal of screening vegetation within the building footprint and as allowed under the criterion above only. A Condition of Approval has been added to ensure existing tree and shrub cover screening the development from Highway 20 be retained. This criterion will be met. B. It is recommended that new structures and additions to existing structures be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site. FINDING: The applicant proposes to use exterior finishes matching the existing finishes of the agricultural buildings. The existing siding has a muted light -green finish and the roofing consists of grey -green colored asphalt shingles. Based on a staff site visit, the proposed colors blend with and reduce contrast with the surrounding vegetation and the landscape of the building site. This criterion will be met. C. No large areas, including roofs, shall be finished with white, bright or reflective materials. Roofing, including metal roofing, shall be non -reflective and of a color which blends with the 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 13 of 32 surrounding vegetation and landscape. DCC 18.84.080 shall not apply to attached additions to structures lawfully in existence on April 8, 1992, unless substantial improvement to the roof of the existing structure occurs. FINDING: The applicant is not proposing any large areas finished with white, bright, or reflective materials. The proposed roofing will consist of grey -green colored asphalt shingles. Staff finds the roofing will be non -reflective and, as stated above, the proposed color will blend with the surrounding vegetation and landscape of the building site. This criterion will be met. D. Subject to applicable rimrock setback requirements or rimrock setback exception standards in DCC 18. 84.090(E), all structures shall be sited to take advantage of existing vegetation, trees and topographic features in order to reduce visual impact as seen from the designated road, river or stream. When more than one nonagricultural structure is to exist and no vegetation, trees or topographic features exist which can reduce visual impact of the subject structure, such structure shall be clustered in a manner which reduces their visual impact as seen from the designated road, river, or stream. FINDING: The subject property does not contain rimrock as defined in DCC 18.04.030. Based on the submitted site plan and a staff site visit, the proposed development will be sited to take advantage of existing tree cover located along the southern boundary of the subject property to reduce visual impacts as seen from Highway 20. In addition, the proposed development will be clustered to reduce visual impacts. This criterion will be met. E. Structures shall not exceed 30 feet in height measured from the natural grade on the side(s) facing the road, river or stream. Within the LM Zone along a state scenic waterway or federal wild and scenic river, the height of a structure shall include chimneys, antennas, flag poles or other projections from the roof of the structure. DCC 18.84.080(E) shall not apply to agricultural structures located at least 50 feet from a rimrock. FINDING: As stated above, the existing agricultural buildings have a height of 16 feet and the applicant does not propose to increase the height. This criterion will be met. F. New residential or commercial driveway access to designated landscape management roads shall be consolidated wherever possible. FINDING: The proposed marijuana production use is a farm use. This criterion does not apply. Staff notes the applicant proposes to use the existing accesses to the site. G. New exterior lighting, including security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from the designated road, river or stream. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 14 of 32 FINDING: The applicant's burden of proof states all of the existing exterior lighting complies with DCC 15.10. Outdoor and Greenhouse Lighting Control. Staff finds the existing and proposed vegetation will provide additional buffering/shielding of lighting from Highway 20 to ensure exterior lighting is not directly visible. A Condition of Approval has been added to ensure compliance. This criterion will be met. H. The Planning Director or Hearings Body may require the establishment of introduced landscape material to screen the development, assure compatibility with existing vegetation, reduce glare, direct automobile and pedestrian circulation or enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points, or views of mountains, forests and other open and scenic areas as seen from the designated landscape management road, river or stream. Use of native species shall be encouraged. (Formerly section 18.84.080 (C)) FINDING: The applicant proposes to plant additional vegetation on the southeast side of the structure and on the southwest property boundary to further screen the development from Highway 20 (see Figure 2 below). The establishment of additional introduced landscape material, beyond the applicant's proposal, is not necessary provided the existing vegetation on the subject property is retained between the proposed development and Highway 20. A Condition of Approval has been added to ensure compliance. This criterion will be met. Figure 2 — Proposed Landscaping / Planting I New Screening I Vegetation L No signs or other forms of outdoor advertising that are visible from a designated landscape management river or stream shall be permitted. Property protection signs (No Trespassing, No Hunting, etc.,) are permitted. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 15 of 32 FINDING: The subject property is not adjacent to a designated Landscape Management river or stream. This criterion does not apply. 5. Section 18.84.090. Setbacks. A. Except as provided in DCC 18.84.090, minimum setbacks shall be those established in the underlying zone with which the LM Zone is combined. FINDING: Conformance with the setback standards of the underlying EFU zone are addressed above. This criterion will be met. B. Road Setbacks. All new structures or additions to existing structures on lots fronting a designated landscape management road shall be set back at least 100 feet from the edge of the designated road right-of-way unless the Planning Director or Hearings Body finds that: FINDING: The proposed development will be sited at least 300 feet from the edge of the right-of-way associated with Highway 20. This criterion will be met. 6. Section 18.84.095. Scenic Waterways. Approval of all structures in a State Scenic Waterway shall be conditional upon receipt of approval of the Oregon Department of Parks and Recreation. FINDING: The subject property is not located within a State Scenic Waterway. This criterion does not apply. E. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS. 1. Section 18.116.330. Mariivana Production, Processing, and Retailing. A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, RI, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, RI, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant proposes to establish a marijuana production facility in the EFU Zone. Therefore, this section applies. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 16 of 32 a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: As addressed in the Basic Findings above, the subject property is a legal lot of record and has a lot area of +1- 8.92 acres. This criterion is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non- rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is zoned EFU. The applicant proposes to establish the use within a fully enclosed structure. Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Prohibited Uses: Marijuana production is prohibited in any outdoor area. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: Z500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: 1. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 17 of 32 FINDING: As addressed above, the subject property has a lot area of +1- 8.92 acres. The applicant proposes a maximum area of 1,802 square feet for mature marijuana plants, as allowed under subsection (a) for properties equal to or greater than 5 acres to Tess than 10 acres in lot area. Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Use & Location: Marijuana production is conditionally approved inside the proposed structure. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is not located in the MUA-10 Zone. This criterion does not apply. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The subject property is one (1) legal lot of record and will include one (1) OLCC licensed marijuana production site with no Oregon Health Authority (OHA) registered medical marijuana production site. This criterion will be met. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. FINDING: The applicant proposes to establish the marijuana production use inside one (1) building sited on the northeastern portion of the subject property. Based on the submitted site plan dated November 10, 2017 and supplemented with a survey prepared by a licensed surveyor, the proposed marijuana production building will have the following lot line setbacks: West Lot Line — 916.6 feet Northwest Lot Line — 864 feet North Lot Line — 26.4 feet East Lot Line — 324.1 feet South Lot Line — 313.3 feet 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 18 of 32 The applicant has requested a setback exception to the 100 -foot setback to the north lot line pursuant to DCC 18.116.330(B)(6)(c), which is addressed below. The proposed marijuana production building will meet the 100 -foot setback requirement to all other lot lines. This criterion will be met. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. FINDING: Based on the submitted application materials and staff's review of surrounding properties, the closest off-site dwelling is +1- 344 feet northwest of the proposed marijuana production buildings. This criterion will be met. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The applicant proposes to establish the marijuana production building 26.4 feet from the north lot line. Therefore, the applicant has requested an exception to the 100 -foot lot line setback requirement. The proposed marijuana production building will meet the 100 -foot setback to all other lot lines. The proposed marijuana production building will be comprised of two (2) existing agricultural buildings with a new +1- 204 -square -foot addition connecting the structures. The topography of the development area is relatively level. There is mature screening vegetation planted along the north lot line and along the southwest corner of the proposed marijuana production building. The applicant proposes to plant additional screening vegetation on the south and southeast sides of the proposed structure. Access to the proposed marijuana production building is provided via two (2) existing gravel driveways (see Figure 2 above). As stated above, the applicant must demonstrate the reduced setback affords equal or greater mitigation of the following impacts: 1. Visual 2. Odor 3. Noise 4. Lighting 5. Privacy 6. Access s Staff notes subsection (b) requires the measurement be taken from the proposed marijuana production structure to an off-site dwelling (i.e. not the lot lines). 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 19 of 32 Figure 3 below identifies the potential development area on the subject property where a marijuana production building could comply with the 100 -foot lot line setback requirements and the 300 -foot setback requirement from adjacent dwellings. This area is predominately comprised of irrigated pasture and existing residential development (i.e. the single-family dwelling, septic system, septic reserve area, concrete parking pads, and gravel driveways). The topography is generally level. This area has a few trees adjacent to the dwelling and nearby the existing agricultural buildings. Otherwise, the vegetative cover is predominately grass lawn, pasture grass, or bare ground. Figure 3 — Development Area in Compliance with Setback Requirements Tax Lot: 171331C000100 Tax Lot Border •f _ � 100ft Perimeter 300ft Perimeter Below staff has provided an analysis to verify if the proposed marijuana production building site affords equal or greater mitigation of the impacts listed above compared to if the proposed use was established within the conforming development area on the subject property: Visual/Privacy Impacts: As detailed above, the proposed marijuana production building site has significantly more screening vegetation than the conforming development area. In addition, the existing residential development will provide screening from Highway 20, which is a designated Landscape Management scenic corridor. DCC 18.116.330(B)(12)(d) only requires the retention of screening vegetation. Therefore, staff finds if the proposed use was established within the conforming development area, the applicant would only be required to 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 20 of 32 plant screening vegetation on the south side of the structure due to the Landscape Management Combining Zone standards. Resultantly, the structure would have greater visual and privacy impacts compared to the proposed marijuana production building site. Lastly, the proposed development area will preserve the natural features of the site, since the proposed use will largely be established within the footprint of the existing agricultural structures. For these reasons, staff finds the proposed marijuana production building site will afford equal or greater mitigation of visual and privacy impacts. Odor Impacts: As described below, all air leaving the proposed marijuana production structure will be filtered. The applicant has submitted a letter from Robert James, P.E., a mechanical engineer licensed in the State of Oregon, detailing the components and sizing of the system to ensure mitigation of odor impacts. The proposed system does not rely on distance to attenuate or dissipate odor. Therefore, staff finds the proposed marijuana production building site will afford equal mitigation of odor impacts. Noise Impacts: Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions cannot exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. The applicant has submitted a letter from Robert James, P.E., a mechanical engineer licensed in the State of Oregon, stating sustained noise associated with the equipment, both inside and outside the proposed structure, will not exceed 29.7 dB(A) at any property line. Based on the submitted construction plans, the only outdoor mechanical equipment are the AC units, which the applicant states will produce noise intermittently. These units will be located on the south side of the proposed marijuana production building and the applicant proposes to construct a 7 -foot sound wall around the units for additional noise mitigation. No other components of production use are anticipated to produce sustained noise. Therefore, staff finds the proposed marijuana production building site will afford equal mitigation of noise impacts. Lighting Impacts: The proposed marijuana production use will be located with an opaque, fully enclosed, windowless building. Therefore, no production lighting will be visible off-site. Additionally, all exterior lighting must comply with the lighting requirements of DCC 15.10, regardless of the location of the proposed use. Nevertheless, staff believes the adjacent juniper trees on the north property line will provide additional mitigation of exterior lighting impacts that may not otherwise be afforded if the use was sited in the conforming development area, which has little to no screening vegetation. Therefore, staff finds the proposed marijuana production building site will afford equal or greater mitigation of lighting impacts. Access Impacts: The applicant proposes to use two (2) existing gravel driveways to access the proposed marijuana production building site. The subject property has two (2) Highway 20 access permits authorized by the Oregon Department of Transportation (ODOT). Staff received the following comments from David Knitowski, P.E., AICP, ODOT Region 4 Access Management Engineer, in response to the subject application: "This property has two unrestricted, permitted highway approaches (driveways) and they are physically located at the reservations of access referenced in the deed. Copies of the permits are attached. The permits were issued to serve a single-family residence and are subject to review under ODOT's Change of Use rule (OAR 734- 051-3020). The trip thresholds that would constitute a change of use are an additional 50 peak hour trips or 500 daily trips. The addition of 1,802 sq. ft. of marijuana 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 21 of 32 production on this property will not generate more than 50 peak hour trips or 500 daily trips; therefore, the existing permits are valid for the proposed use." Based on the comment above, staff concludes the proposed use is of a limited size and scale such that no traffic impacts are anticipated. Regardless of the location of the proposed use, the traffic volumes remain the same; however, the potential impacts differ. The proposed development area includes screening vegetation that will buffer parking areas and vehicular traffic entering and leaving the property. Comparatively, the conforming development area has little to no screening vegetation, which may result in greater access related impacts to adjacent properties. Therefore, staff finds the proposed marijuana production building site will afford equal or greater mitigation of access impacts. For these reasons, staff finds that the applicant has demonstrated that the reduced setback to the north lot line affords equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; H. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. b. For purposes of DCC 18.116.330(6)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(6)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(6)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(6)(7) if the use is. i. Pending a local land use decision; 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 22 of 32 ii. Licensed or registered by the State of Oregon; or ill. Lawfully established. FINDING: The applicant's burden of proof states the proposed use will be greater than 5,000 feet from the nearest elementary school, secondary school, or childcare center. The applicant identifies Buckingham Elementary School as the closest use. Based on staff's review of Deschutes County records, no properties within 1,000 feet of the subject property appear to be engaged in a use described in this section or are subject to subsection (c). These criteria are met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards [...] FINDING: The applicant proposes to establish a marijuana production facility with 1,802 square feet of canopy area for mature marijuana plants. This criterion does not apply. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. FINDING: The applicant proposes to close off all windows in the existing agricultural buildings and the proposed addition does not include windows to ensure no light will escape the building. In addition, the applicant's burden of proof and incomplete letter response state: "Outdoor lighting is already in place on [the] existing buildings and complies with DCC 15.10." Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Liahtinq,: The following lighting standards shall be met: (a) 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; (b) Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part; and (c) The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 23 of 32 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. FINDING: The applicant submitted a narrative report stamped by Robert E. James, P.E., a mechanical engineer licensed in the State of Oregon, describing how the proposed odor control system will meet the requirements of this section. Staff confirmed Mr. James's certificate number on the Oregon State Board of Examiners for Engineering and Land Surveying's website, which lists Mr. James's license information and identifies him as a mechanical engineer. As summarized in the table below, Mr. James's report provides a detailed analysis for the required odor mitigation in each room of the proposed marijuana production building: Room Name Vol. of Req. Air Fan and Filter Type Number of Room Flow Fans Can -Fan 12" High Output West Flower Rm 9,120 cubic ft 3,040 CFM (925 CFM @ 0.5") with an attached 4 Can -Filter 150, 12" Flange Can -Fan 12" High Output East Flower Rm 5,126 cubic ft 1,709 CFM (925 CFM @ 0.5") with an attached 2 Can -Filter 150, 12" Flange Can -Fan 8" High Output Drying Rm 1,107 cubic ft 369 CFM (620 CFM © 0.5") with an attached 1 Can -Filter 125, 8" Flange Can -Fan 8" High Output Vegetation Rm 2,970 cubic ft 990 CFM (620 CFM @ 0.5") with an attached 2 Can -Filter 125, 8" Flange 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 24 of 32 Mr. James's report concludes: "Providing odor control via carbon filtration connected to an inline fan, as described above, will prevent unreasonable interference of neighbors' use and enjoyment of their property. Filtering air through a carbon filtration system, as described above, will satisfy the requirements of DCC 18.116.330(B)(10)(d)(ii), and prevent unreasonable interference of the neighbors' use and enjoyment of their property." Based on Mr. James's report, staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. FINDING: The applicant submitted a narrative report stamped by Robert E. James, P.E., a mechanical engineer licensed in the State of Oregon, describing how the criterion above will be met. Mr. James's report states: "The cooling equipment at the facility will run intermittently when there is a call for cooling. Therefore, the noise will not be sustained. The odor control fans are inside the building and do not contribute to outside noise. A 7 ft tall sound barrier wall constructed 3 ft away from the outdoor units (located as shown on the drawings) would keep sound level to a calculated value of 29.7 dBA at the nearest property line. It is our opinion that since the mechanical equipment exterior to the building will operate intermittently upon call for cooling, the property will comply with DCC 18.116.330(B) (11) (a). " Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 25 of 32 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non- rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. FINDING: The subject property is in the Landscape Management Combining Zone associated with Highway 20. The applicable standards of the Landscape Management Combining Zone are addressed above. This criterion will be met. 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. FINDING: The applicant does not propose any new fencing. These criteria do not apply. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: As stated above, the applicant proposes to retain screening vegetation and also proposes to plant additional tree and shrub cover. Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 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 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 26 of 32 c. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. FINDING: The applicant's incomplete letter response states the following: "[A]ttached is a letter from Avion water stating that they are willing and able to provide the required water for the production site. Only Avion water will be used for marijuana production. We will not use water from our COID water rights or any well or ground water. The water being used for the production will have a backflow prevention device installed so that no water on the public line can be mixed with any water that has entered the production site." The Avion Water Company, Inc. "will serve" letter titled "Ref: Special Use Permit (Marijuana Production)" includes their name and contact information. Staff finds this criterion is met and adds the following condition to ensure compliance with the requirements of this section. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing of cannabinoid extracts is proposed. This criterion does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: The applicant submitted a "will serve" letter from Central Electric Cooperative, Inc. dated October 23, 2017. This letter from Central Electric Cooperative, Inc. states: "In response to your inquiry, please be advised that property located in T. 17S., R.13E., W.M., Section 31, Tax Lot 100, Deschutes County, Oregon, is within the service area of Central Electric Cooperative, Inc. Central Electric Cooperative has reviewed the provided load information (2 -Existing 200 amp Single phase services) associated with the submitted Cannabis Grow Facility and is willing and able to serve this location in accordance with the rates and policies of Central Electric Cooperative" Electric service is the only utility the proposal will utilize besides water, which is addressed above. This criterion is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 27 of 32 FINDING: The applicant's burden of proof states the following: "Our property will have security cameras in accordance with Oregon State OAR 845- 025-1440, in all limited access areas and all points of entry to or exit from limited access areas. These will all be directed to record only on public property in accordance with DCC 18.116.330(8)(16)." This section does not require security cameras, it simply limits what may be recorded by security cameras. Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirements of this section. Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant's incomplete letter response states the following: "The marijuana waste will be stored in the locked and secured production building in a designated waste bin." Staff finds this criterion will be met and adds the following condition to ensure compliance with the requirement of this section. Waste: Marijuana waste shall be stored in a secured waste receptacle inside the proposed building and be under the control of the OLCC licensee. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is not in the MUA-10 zone. This criterion does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 28 of 32 FINDING: The subject property does not contain a medical marijuana grow site. This criterion does not apply. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. H. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: None of the prohibited uses have been proposed by the applicant. Staff adds the following condition to ensure compliance with the requirements of this section. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 29 of 32 b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is mandatory. The applicant has agreed to file the annual report each year in a timely manner. Staff adds the following condition to ensure compliance with the requirements of this section. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. Staff notes opposition comments expressed concerns regarding the County's enforcement of land use decisions and related Conditions of Approval. The Community Development Department administers the Code Enforcement program for the Building, Environmental Soils, and Planning Divisions. The mission of code enforcement is to protect the health and safety of the County's residents and visitors, and the livability of the community, by assuring compliance with the County's land use, environmental and construction codes. The County will assure code compliance both by encouraging voluntary compliance and by punishing code violators who do not comply. If a code violation is identified6 every effort is made to work with the property owner to voluntarily resolve the issue. If all voluntary efforts are exhausted then it is necessary to start the enforcement process. A Code Enforcement Complaint can be filed if any person believes the applicant is not in compliance this decision. The County Code Enforcement program will take all necessary actions to resolve the complaint. 6 Staff notes code complaints specific to marijuana uses can be filed anonymously through the Code Enforcement program. If necessary, the Code Enforcement program will work with the Deschutes County Sheriff's Office and the District Attorney's office to resolve violations. 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 30 of 32 IV. CONCLUSION: Based on the foregoing Basic and Conclusionary Findings, staff finds that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County Zoning Ordinance if Conditions of Approval are met. V. DECISION: APPROVAL, subject to the following Conditions of Approval. VI. CONDITIONS OF APPROVAL: 1. Prior to County approval of the OLCC Land Use Compatibility Statement for the proposed marijuana use, the applicant must demonstrate to the Planning Division that the marijuana production building has been modified to meet the 26 -foot side yard setback to the north lot line. 2. Use & Location: Marijuana production is conditionally approved inside the proposed structure. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. 3. Prohibited Uses: Marijuana production is prohibited in any outdoor area. 4. Lighting: The following lighting standards shall be met: a. New exterior lighting, including security lighting, shall be sited and shielded so that it is directed downward and is not directly visible from Highway 20. b. 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. c. 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. d. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 5. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 6. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 7. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 31 of 32 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. 8. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690- 340-0010. 9. Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. 10. Waste: Marijuana waste shall be stored in a secured waste receptacle inside the proposed building and be under the control of the OLCC licensee. 11. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. 12. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. VH. DURATION OF APPROVAL: The applicant shall complete all Conditions of Approval and obtain the necessary permits for the proposed marijuana production facility within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by: Caroline House, Assistant Planner Reviewed by: Peter Gutowsky, Planning Manager 247 -17 -000784 -AD / 247 -17 -000778 -LM Page 32 of 32 Site Plan 1 Data 8/12/20v 1 Job Na — 71/10/2017 I FBuwO. 22167 Hpr, 164..2 0117 017.2.00 22160 HIGHWAY 20 22160 HIGHWAY 20 BEND, OR 99701 Lava Lia{ 3253 E IA. RAT Mx., GO 80228 Oil 720883-2122 Aepve2 Fa: OMAN & MEGAN LOKSIOH P11ons 720435-1006 7 . •.. • ' .• r - C G 0 E 0 1 0 HIGHWAY 2 22760 HiGHWAY 20 SENO, OR 97707 Z2,2 42i ;,3 0