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2018-48-Minutes for Meeting January 03,2018 Recorded 2/7/20181 Recorded in Deschutes County Nancy Blankenship, County Clerk Commissioners' Journal CJ201 8-48 02/07/2018 8:30:29 AM 11111111,inuumiuunii For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Allen Conference Room Wednesday, January 3, 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. No representatives of the media were in attendance. CALL TO ORDER: Chair Baney opened the meeting at 1:32 p.m. ACTION ITEMS 1. Staff Presentation of Proposed Amendment to DCC 8.30 Ambulance Service Area (ASA) Tom Kuhn Deschutes County Community Health Manager, and Doug Kelly, Redmond Fire presented this item. Also attending in the audience were the community fire chiefs. Mr. Kuhn explained the responsibilities of the Ambulance Service Area (ASA). Minutes of Board of Commissioners' Work Session January 3, 2018 Page 1 of 5 The upcoming application process for ambulance franchise will begin in February. The committee recommends an increased franchise term length from five to 10 years. Mr. Kuhn had included information in the staff packet regarding the proposed changes. Commissioner Baney noted in terms of other ambulance service area committees would the longer terms afford better partnerships. Mr. Kuhn stated this proposed amendment will merely expand the franchise term. There are eight ASA franchises for emergency medical services within the County. This is for the 911 emergency response services and not for non -emergency services. Oregon Health Authority is the primary regulatory body. Commissioner DeBone inquired of the expansion of terms and transparency to other franchises. The current franchise agreements expire on June 30, 2018. The proposed amendment to DCC and the ASA Plan will be scheduled for a public hearing before the Board (likely in February). 2. Mosaic Medical Lease: This item is to be presented at a future meeting. 3. Update on Web Project Public Information Officer Whitney Hale and Web Solutions -Senior Systems Analyst Eric Ballinger presented this item for discussion to review the proposed updates to the Deschutes County website. Project goals were to focus on the home page to provide easy access for the public. The updates in navigation will provide easier ways to find what people are most searching for in terms of website data. The goal is to go live in January. Links to city websites will also be included. Commissioner DeBone suggested the graphic of the county logo may need a background or font color change to make it stand out. Ms. Hale also commented on ways for the public to engage their local government and the inclusion of videos to explain the business meetings and work sessions. 4. Staffing Request Staff from the Community Development Department that presented this item were Nick Lelack, Sherri Pinner, Lori Furlong, and Randy Scheid. The proposed full time equivalent (FTE): one permit tech, one building safety inspector, one senior planner, and one long - Minutes of Board of Commissioners' Work Session January 3, 2018 Page 2 of 5 range planner. Staff memo shows land use application volumes are increasing. The volume in La Pine and Sisters has increased and additional staffing is required at the satellite offices. By adding a permit technician, this would increase available staff time in Sisters and La Pine. Currently staff are taking short lunch breaks and coming in to work early and staying late. The Board expressed support of that position. The building safety division struggles to meet the required performance measures. The Board is supportive of the building safety inspector position. Staff planners are working overtime and the presented proposal is to add a senior planner to meet the increasing demands. The Board is supportive of this position. The department has three long-range planners that focus on additional work plans and Board priority projects and much of the director and planning managers' time is included in this work as well. Currently have 3 FTE and portions of nick and peter g's time. The Board is supportive of this position. 5. Preparation for a Public Hearing; Appeal of an Administrative Determination Approving a Marijuana Production Facility Jacob Ripper, Community Development Department presented this item. This item was audio recorded. A public hearing is scheduled for January 10th for a location in Alfalfa. There are three new proposed greenhouses. Mr. Ripper reviewed the site plans. The applicant proposes to convert an existing medical marijuana production facility to a recreational medical marijuana facility. A staff decision was issued and opposition was received. Concerns were addressed and there was an appeal filed by a neighbor with 8 main points of objection. The public hearing is scheduled for Wednesday, January 10. Minutes of Board of Commissioners' Work Session January 3, 2018 Page 3 of 5 OTHER ITEMS: • Commissioner DeBone suggested adding work sessions during the week if needed. County Administrator Anderson inquired if moving the Business Meetings to a start time of 9:00 a.m. would help. Commissioner Henderson commented on the many weeks where there have only been one meeting day per week. Commissioner Baney also addressed the issues are getting complex and possibly requiring each speaker a certain length of time for presentations. Commissioner Henderson commented he would like more time for reviewing the packets so would prefer the 9:00 a.m. start time on Wednesdays only. Commissioner Henderson commented on the agenda materials and requested larger font size as well as larger maps. Some materials are submitted from the public and will need to be resized taking additional staff resources. • County Administrator Anderson reported the Joint Meeting with the City of Redmond is scheduled for January 16. A draft agenda includes updates on affordable housing and the Crisis Stabilization Center. George Conway Health Services Director and Sheriff Nelson should be present for the update. The Joint Meeting with the City of Sisters is scheduled for January 24. A draft agenda includes an update on EDCO and on the Sisters Country visioning and update on strategic planning for the Solid Waste Advisory Committee. Commissioner Henderson expressed interest in receiving community input on forest management in the Sisters area. He suggested a conversation with Project Wildfire and the Deschutes Forest Collaborative. Commissioner DeBone pointed out the Community Wildfire Protection Plans and the importance of smoke management. County Administrator Anderson noted the work done on fuels reduction projects. EXECUTIVE SESSION: At the time of 4:12 p.m. the Board went into Executive Session under ORS 192.660 (2) (d) Labor Negotiations. The Board came out of Executive Session at 4:33 p.m. Minutes of Board of Commissioners' Work Session January 3, 2018 Page 4 of 5 ADJOURN: Being no further discussion, the meeting adjourned at 4:33 p.m. DATED this Day of Board of Commissioners. 2018 for the Deschutes County Recording Secretary Anthony DeBone, Chair Philip G. Hencjrson, Vice Chair Tammy Baney, Comi'jiiissioner Minutes of Board of Commissioners' Work Session January 3, 2018 Page 5 of 5 -'E 0 w 0 -< Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, JANUARY 3, 2018 Allen Conference Room - Deschutes Services Building, 2ND Floor — 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. Staff Presentation of Proposed Amendment to DCC 8.30 (Ambulance Service Area) - Thomas Kuhn, Health Services 2. Mosaic Medical Lease - George Conway, Health Services Director 3. Update on Web Project - Whitney Hale, Public Information Officer 4. Staffing Request - Nick Lelack, Community Development Director 5. Preparation for a Public Hearing: Appeal of an Administrative Determination Approving a Marijuana Production Facility. - Jacob Ripper, Associate 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 3, 2018 Page 1 of 2 OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.orq/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, January 3, 2018 Page 2 of 2 A 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 3, 2018 DATE: December 29, 2017 FROM: Thomas Kuhn, Health Services, 541-322-7410 TITLE OF AGENDA ITEM: Staff Presentation of Proposed Amendment to DCC 8.30 (Ambulance Service Area) RECOMMENDATION & ACTION REQUESTED: Requesting Board direction to proceed with a public hearing to consider amendments to DCC 8.30 and the ASA Plan. ATTENDANCE: Tom Kuhn, Public Health; Doug Kelly, Redmond Fire. BACKGROUND AND POLICY IMPLICATIONS: From time to time a need arises to amend county code provisions regarding ambulance service areas. The ASA Committee is supporting an amendment to DCC 8.30 (and the associated Plan) to allow for 10 -year franchise terms. This amendment (from 5 -years) is supported by the local services providers and Fire Chiefs. Existing franchise agreements expire on June 30, 2018. As a result, in February 2018 the ASA Committee will be initiating a Franchise Application/Renewal process. [The Application/Renewal process is independent of the proposed amendments.] If BOCC gives direction to proceed, staff will schedule a public hearing within the next 30 days. FISCAL IMPLICATIONS: No direct fiscal impacts anticipated. Ambulance Service Area (ASA) Committee 1110111 I I4 ASA Oversight Plan Effective July 1, 2018 Doug Kelly, ASA Chair Tom Kuhn, ASA Administrator Overview: The Deschutes ASA Committee is proposing an extension in franchise term length from 5 years to 10 years in the local County Code and ASA Plan. In order to insure quality delivery of EMS service through this extended term, the following actions will be taken by the ASA Administrator and Deschutes County Health Services: 1. Quarterly response time reports will be gathered with the assistance of Deschutes County 9-1-1 Service District and summarized. The information will be analyzed per ASA franchise, as well as examining injury and trauma data by geographic area. 2. At least twice a year, the ASA committee will convene to review response time data, call types, as well as review any complaints received. 3. OHA EMS will provide the ASA Administrator with scheduled site -visit reports from each franchise. Reports will be reviewed and problem areas discussed with corresponding franchises. 4. Annually the ASA Administrator will conduct scheduled, in-person tours of each franchise facility. 5. Annually, the ASA Administrator and ASA Chair will present an ASA update to the BOCC during a work session, highlighting data gathered as well as any complaints received. Ambulance Service Area (ASA) Committee Doug Kelly, ASA Chair Tom Kuhn, ASA Administrator This document is intended to provide you with a list of franchise term lengths for Deschutes County, the City of Bend, and various Ambulance Service Area providers in Oregon. Deschutes County Waste Collection (5 franchises) City of Bend Avion Water Waste Mngt Quantam Communications Pacific Power Bend Cable Central Electric Oregon ASA's Crook County Jefferson County Marion County Benton County Lake County Klamath County Polk County Washington County Clackamas County Yamhill County 7 years evergreen 20 years 7 years renewable 5 years evergreen* 10 years 19 years (updated 2000, expires July 2019) 20 years No expiration No expiration 5 years with 5 -year extension 10 years with a 5 year mutually agreed extension 5 years evergreen* 7 years evergreen* No expiration 6 years evergreen*; every 18 months a review and the 6 years renew; 5 years renewable for 5 more No expiration *The term "evergreen" refers to a contract that is renewed automatically after a short-term period unless it is terminated. Chapter 8.30. AMBULANCE SERVICE AREA 8.30.010. Title. 8.30.020. Purpose. 8.30.030. Definitions. 8.30.035. Ambulance Service Area (ASA) Advisory Committee -Established. 8.30.040. Administration. 8.30.045. Service Providers Regulated. 8.30.050. Franchise -Application. 8.30.055. Franchise -Review of Application. 8.30.060. Franchise -Terms and Renewals. 8.30.065. Franchise -Discontinuance of Service; Transfer. 8.30.070. Enforcement. 8.30.075. Interruption of Service -Prevention. 8.30.080. Appeals, Abatement and Penalties. 8.30.085 Franchise Duties. 8.30.090. Exemptions. 8.30.100 Appendix A - Ambulance Service Area Plan for Deschutes County, Oregon 8.30.010. Title. This title shall be known as the Deschutes County Ambulance Service Area. (Ord. 98-064 §1, 1998) 8.30.020. Purpose. A. The purpose of DCC 8.30 is to establish ambulance services areas, assign emergency ambulance service providers, create an ambulance service area advisory committee, provide penalties and prescribe effective dates. B. For the efficient and effective provision of emergency ambulance services in accordance with the Ambulance Service Area (ASA) Plan, the ambulance service areas shown on the map known as Appendix #1 of the ASA Plan is hereby adopted as the ASA for Deschutes County. The Board, after notice to the affected ASA provider and by the adoption of an order, may adjust the boundaries of an ASA from time to time as necessary to provide efficient and effective emergency ambulance services. (Ord. 98-064 §1, 1998) 8.30.030. Definitions. Unless otherwise apparent from the context, certain words and phrases used in DCC 8.30 are defined as set forth in the Ambulance Service Area Plan for Deschutes County, Oregon, Appendix A to this Chapter. (Ord. 2003-023 §1, 2003; Ord. 98-064 §1, 1998) 8.30.035. Ambulance Service Area (ASA) Advisory Committee -Established. A. A committee to be known as the Ambulance Service Area Advisory Committee (committee) is hereby established. 1. The committee shall consist of not less than twelve and no more than fourteen members from the following: a. Emergency department physician. b. Deschutes County Health Department representative. Chapter 8.30 1 (01/2013) c. Ambulance service provider representative from each ASA. d. Deschutes County Emergency Manager e. 9-1-1 center representative. f. Citizen member. 2. The Board shall designate a County staff member as the ASA Administrator. The Administrator and other County staff as the Board deems appropriate shall be ex -officio members of the committee. B. Members shall be appointed by and serve at the pleasure of the Board. The Board may appoint additional persons to the committee to serve as ex -officio members or advisors. The Board may approve designation of alternates to serve in the absence of persons appointed to the committee. C. Except for the ASA Administrator and any other County staff, appointments shall be for staggered terms on the initial committee for a term not to exceed three years. Subsequent appointments shall be for two-year terms. Members shall serve until their successors are appointed and qualified. Vacancies shall be filled by the Board for the balance of the unexpired term. Persons may be appointed to successive terms. D. The committee shall elect a chairperson. The committee shall meet at such times it deems necessary or as called by the Administrator or the Board. The chairperson or any two members of the committee may call a special meeting with five days notice to other members of the committee. However, members may waive such notice. E. A quorum constitutes one-half of the committee members plus one for the transaction of business. A majority vote of those present and voting is required to pass motions. F. In addition to other duties prescribed by DCC 8.30, the committee shall: 1. Review and make recommendations to the Administrator regarding the selection criteria for determining a franchise to provide ambulance service. 2. Regularly provide information to the Board from pre -hospital care consumers, providers and the medical community. 3. Periodically review the ASA Plan and make recommendations to the Board in regard to: a. Standards established in the plan and improvements of or new standards as required by OAR 333-260-0000 through 333-260-0070; b. Coordination between emergency medical service resources; c. Dispatch procedures and compliance; and d. Effectiveness and efficiency of the ASA boundaries. 4. Implement the quality assurance program outlined in the ASA Plan to insure compliance with the ASA Plan. 5. Perform such other duties as directed by the Board. G. Committee members shall avoid acting in any manner where a conflict of interest may arise. Any committee member having a direct or indirect financial pecuniary interest in any matter before the committee for consideration shall withdraw from participation in any action by the committee in said matter. Nothing in DCC 8.30.035 shall limit the ability of any person to provide testimony before the committee. (Ord. 2013-005 §1, 2013 Ord. 2003-023 §2, 2003; Ord. 98-064 §1, 1998) 8.30.040. Administration. The Administrator, under the supervision of the Board and with the assistance of the committee, shall be responsible for the administration of the ASA Plan. In order to carry out the duties imposed by the ASA Plan, the Administrator, or persons authorized by the Administrator, are authorized to enter on the premises of any person regulated by the ASA Plan at reasonable times and in a reasonable manner to determine compliance. The Administrator shall also have access to records pertaining to ambulance service operations Chapter 8.30 2 (01/2013) of any person regulated by the ASA Plan. These records shall be made and provided as requested by the Administrator. (Ord. 98-064 §1, 1998) 8.30.045. Service Providers Regulated. A. Effective May 14, 1997, no person shall provide emergency ambulance services within Deschutes County unless such person is franchised in accordance with DCC 8.30. Each franchise retains the first right of refusal for non -emergency and inter -facility ambulance transports originating within their ASA boundaries. The franchisee may subcontract non -emergency or inter -facility ambulance transports as defined in the ASA Plan. B. If there is more than one application made for an ASA, the provider that meets the application requirements of DCC 8.30.050 and that was providing service on the effective date of this Ordinance shall be franchised to provide emergency ambulance service for the ASA. (Ord. 2013-005 §1, 2013; Ord. 98-064 §1, 1998) 8.30.050. Franchise -Application. A. Any person desiring to provide ambulance service within Deschutes County shall submit an application to be assigned an ASA within 30 days of the effective date of this ordinance. The application shall be submitted to the Administrator. B. Applications for franchises shall be on forms provided by the Board. In addition to information required by the forms, the Board may require additional information it deems necessary to insure compliance with DCC 8.30 or to make a more informed decision. C. The applicant shall provide the following information: 1. The name and address of the person or agency applying. 2. The ASA the person desires to serve, the location(s) from which ambulance services will be provided, and the level of service to be provided. 3. A statement as to whether or not the applicant will subcontract for any service to be provided. If some service will be provided by subcontract, a copy of that subcontract shall be provided. 4. A list of vehicles to be used in providing emergency ambulance services including year, make and model, and verification that each vehicle is licensed as a basic and/or advance life support ambulance by the Oregon Health Authority. 5. A statement that all equipment and supplies in each ambulance conforms to Health Authority standards. 6. A list of personnel to be used in providing emergency ambulance service and their current Emergency Medical Services Provider level and license number, or other appropriate certification. 7. Proof of financial ability to operate, including an operating budget for public bodies or financial statement for private entities, references, and statement of past ambulance service. Private companies must include a profit and loss statement in addition to the above materials. Other appropriate financial information such as income tax returns or reports by governmental authorities shall also be submitted upon request. Public bodies must provide information regarding the sources and amounts of funding for emergency ambulance services. 8. Proof of public liability insurance in the amount of not less than the limits of liability provided under the Oregon Tort Claims Act, ORS 30.260 to 30.300. Public agencies may in lieu of insurance establish a program of self-insurance in accordance with State law. 9. A statement of experience in providing emergency ambulance service of a comparable quality and quantity to insure compliance with DCC 8.30, regulations promoted thereunder, any franchise issued, and the ASA Plan. 10. Statement of ability to comply with the rules and regulations of the ASA Plan and applicable County ordinances, in the form of a narrative summary. Chapter 8.30 3 (01/2013) 11. A description of any prepaid ambulance plan, including number of years of operation, funding and term. 12. Any other materials or information requested. 13. In the case of an application to transfer or take over an already assigned franchise: a. A detailed summary of how the proposed change will improve emergency ambulance response time, and the quality and level of services to the ASA. It shall include an assessment of how the proposed change will impact the existing first response system. b. Evidence that the call volume in the ASA is sufficient to financially or otherwise justify the change in service. c. Any other records or materials requested. D. The Board may, from time to time, by order, adopt fees to defray the actual reasonable costs incurred by Deschutes County in processing applications, and adopt annual franchise fees to defray reasonable costs of Deschutes County in administering the ASA Plan. E. Franchise applications shall be reviewed by the ASA committee, who will make a recommendation of assignment of the ASAs to the Board. The assignment of an ASA shall be made by an order of the Board. (Ord. 2013-005 §1, 2013; Ord. 98-064 §1, 1998) 8.30.055. Franchise -Review of Application. A. Applications shall be reviewed by the committee, who shall make such an investigation as it deems appropriate, and who may request assistance of other persons as necessary. B. The Administrator shall notify the holder of a franchise for providing emergency ambulance service to an ASA of any applications by another person to take over that franchise. C. Unless the time is extended by the Board for good cause, the committee shall make its recommendation to the Board to grant, deny, modify, or attach appropriate conditions to the application. The committee shall transmit its recommendation within 60 days after the application. D. Upon receipt of the committee's recommendation, the Board: 1. Shall publish notice of its intent to hold a public hearing on the application and recommendations at least 10 days, but not later than 30 days following publication of notice. 2. May require additional investigation by the committee if it finds that there is insufficient information on which to base its action. 3. Shall, upon the basis of the application, the committee's recommendation, such other information as is permitted by DCC 8.30, and such information as is presented to the Board at the public hearing, make an order granting, denying, or modifying the application or attaching conditions thereto. 4. Shall not make an order adverse to the applicant or to the holder of, or applicant for, another franchise effective less than 30 days after the date of such order and shall notify such persons in writing of the order. The Board may suspend operation of this DCC 8.30.055 and enter an emergency order if it finds there is an immediate and serious danger to the public or a health hazard or public nuisance would be created by a delay. 5. After the Board makes an order granting an emergency ambulance service franchise with or without conditions, and the franchise finds he/she is unable to provide a particular service, the Board may permit the franchise to subcontract such service to another person if the Board finds that the quality and extent of the service would not be jeopardized. The Board may require the filing of such information, as it deems necessary. (Ord. 98-064 §1, 1998) 8.30.060. Franchise -Terms and Renewals. A. The initial ambulance service franchise in an ASA shall be valid from the date of issuance until June 30, 2000. Chapter 8.30 4 (01/2013) B. Thereafter, term of an emergency ambulance service franchise shall be July 1 and ending June 30 years later. C. Unless grounds exist for refusal to renew a franchise under provisions for suspension or revocation as set forth • in DCC 8.30, or unless the franchise is to be to a new person , the years beginning on D. Not more than 180 days and not less than 120 days prior to the expiration of the franchise, any person • desiring to take over the franchise shall submit an application to the Administrator. E. Review of all applications for • take over of a franchise shall be conducted in . DCC 8.30. Ord. 2003-023 §3, 2003; Ord. 98-064 §1, 1998) 8.30.065. Franchise -Discontinuance of Service; Transfer. A. If a franchise discontinues service before the expiration date of his/her franchise, the Board shall set a time by which applications must be submitted for a new franchise in the ASA. B. The committee shall develop an interim plan for coverage of the ASA, using existing franchisees and/or other available resources until the ASA can be reassigned. C. The Board shall issue a temporary certificate, valid for a stated period not to exceed six months, entitling a person to provide emergency ambulance service in all or part of the ASA. The Board may renew a temporary certificate for one additional six month period. D. A franchise may transfer its franchise to another person only upon written notice to and approval by the Board. Review of an application for transfer of a franchise shall be conducted in the same manner as for an application pursuant to DCC 8.30. (Ord. 98-064 §1, 1998) 8.30.070. Enforcement. A. Subject to the policies and remedies stated in DCC 8.30, and penalties provided elsewhere in DCC 8.30, the Administrator shall, upon reasonable cause, make an investigation to determine if there is sufficient reason and cause to suspend, modify, revoke, or refuse to renew a franchise as provided in DCC 8.30.070. B. If in the judgment of the committee or Board, there is sufficient evidence to constitute a violation of applicable local, state or federal law, or if the franchise has materially misrepresented facts or information given in the application for the franchise, the Board shall notify the franchisee in writing, by certified mail, or by personal service, as is provided by law for the service of a summons, of the violation and what steps he must take to cure the violation. The Board shall send a copy of the notice to the committee. C. Ten days following the receipt of notice of violation, the Board may enter its order of revocation, modification, suspension or non -renewal, and may thereby revoke, modify, suspend, or not renew the franchise, unless prior thereto the franchisee shall file with the Board his request for a hearing on the Board's notice of violation. If said request is timely filed, or if the Board moves on its own, revocation, modification, suspension, or non -renewal will be stayed until the Board can, at its earliest convenience, hold a public hearing on the matter. Notice of said hearing shall be given to the franchisee by mail and to all others by publication in a newspaper of general circulation in the County or the ASA at least 10 days prior to such hearing. The burden of proof at the hearing shall be upon the Administrator to show Chapter 8.30 5 (01/2013) by substantial evidence in the record as a whole that the franchisee failed to comply with DCC 8.30, the ASA Plan, state statute, or administrative rule. D. In lieu of the suspension or revocation of the franchise, the Board may order that the violation be corrected and make the suspension or revocation contingent upon compliance with the order within the period of time stated therein. Notice of the Board action shall be provided by mail to the franchisee. The notice shall specify the violation, the action necessary to correct the violation, and the date by which the action must be taken. The franchisee shall notify the Board of the corrective action taken. If the franchisee fails to take corrective action within the time required, the Board shall notify the franchisee by certified mail, return receipt requested, or by personal service, that the franchise is suspended or revoked upon service of the notice. E. Should the franchisee fail to comply with the Board's order, then the Board may take any steps authorized by law to enforce its order. (Ord. 98-064 §1, 1998) 8.30.075. Interruption of Service -Prevention. Whenever the Board finds that the failure of service would adversely impact the health, welfare or safety of the residents of this County, the Board shall, after reasonable notice, but not less than 24 hours notice to the franchisee, hold a public hearing. Upon appropriate findings after the hearing, the Board shall have the right to authorize another franchisee or other person to provide services. (Ord. 98-064 §1, 1998) 8.30.080. Appeals, Abatements and Penalties. A. All the decisions of the Board under DCC 8.30 shall be reviewable by the Circuit Court of the State of Oregon for the County of Deschutes, only by way of writ of review. B. The provision of emergency ambulance service by any person in violation of DCC 8.30, or regulations promulgated thereunder, is a nuisance and the court may, in addition to other remedies provided by law or by DCC 8.30, institute injunctive abatement or other appropriate legal proceedings to temporarily or permanently enjoin or abate such emergency ambulance service. C. Any person who violates any of the provisions of DCC 8.30 is guilty of a violation. Failure from day to day to comply with the terms of these provisions shall be a separate offense for each day. Failure to comply with any provision shall be a separate offense for each such provision. D. Violations of these provisions are punishable, upon conviction, by a fine of not more than $500.00 for a non -continuing offense, i.e., an offense not spanning two or more consecutive calendar days. In the case of a continuing offense, i.e., an offense which spans two or more consecutive calendar days, violations of the provisions is punishable by a fine of not more than $500.00 per day up to a maximum of $1,000.00 as provided by law. (Ord. 98-064 §1, 1998) 8.30.085. Franchisee Duties. The Franchisee: A. Shall conduct its operation in compliance with all applicable state and federal laws, rules and regulations, the terms of this Ordinance and the Deschutes County ASA Plan; B. Shall not fail or refuse to respond to an emergency call for service when an ambulance is available for service; C. Shall not respond to a medical emergency located outside its assigned ASA except: 1. When a request for specific emergency ambulance service is made by the person calling for the ambulance and the call does not dictate an emergency service response; Chapter 8.30 6 (01/2013) 2. When the franchisee assigned to the ASA is unavailable to respond and the franchisee is requested by another franchisee or 9-1-1 dispatch to respond; 3. When the response is for supplemental assistance or mutual aid. D. Shall not voluntarily discontinue service to its assigned ASA until it has: 1. Given 60 days written notice to the Administrator, or 2. Obtained written approval of the Board. E. DCC 8.30.085(A)(4) shall not apply to: 1. Change, restriction or termination of service when required by any public agency, public body or court having jurisdiction; or 2. Transfer of franchises pursuant to DCC 8.30. (Ord. 98-064 §1, 1998) 8.30.090. Exemptions. A. Nothing in DCC 8.30 prohibits a 911 agency, responsible for the dispatching of emergency services, from dispatching an initial responder to the scene of a medical emergency in addition to dispatching an emergency ambulance service provider. B. DCC 8.30 shall not apply to the following: 1. Ambulance services and ambulances owned or operated under the control of the United States Government; and 2. Vehicles and aircraft being used to render temporary assistance in the case of a major catastrophe or emergency with which the ambulance services of the surrounding locality are unable to cope, or when directed to be used to render temporary assistance by an official at the scene of an accident; and 3. Vehicles operated solely on private property or within the confines of institutional grounds, whether or not the incidental crossing of any public street, road or highway through the property or grounds is involved; and 4. Ambulances or vehicles not covered by the Deschutes County ASA Plan transporting patients from outside the County to a health care facility within the County, or which are passing through without a destination in the County. (Ord. 98-064 §1, 1998) Chapter 8.30 7 (01/2013) .4 0 i< Chapter 8.30 AMBULANCE SERVICE AREA PLAN FOR DESCHUTES COUNTY, OREGON APPENDIX A (1/2013) Table of Contents I. Certification By Governing Body of Deschutes County ASA Plan II. Overview of Deschutes County III. Definitions Page 4 Page 5 Page 6 Page 9 Page 15 Page 15 IV. Boundaries 1. Ambulance Service Area Narratives and Description 2. Maps 3. Alternatives to Reduce Response Times V. Systems Elements 1. Notification/Response Times 2. Level of Care 3. Personnel 4. Medical Supervision 5. Patient Care Equipment 6. Vehicles 7. Training 8. Quality Assurance 8.1 Structure 8.2 Process 8.3 Problem Resolution 8.4 Sanctions for Non -Compliant Personnel or Providers 8.5 Penalties 8.6 Nuisance 9. Nonemergency Transports VI. Coordination 1. Authority for Ambulance Service Area Assignment 2. Entity That Will Administer The ASA Plan 3. Complaint Review Process 4. Mutual Aid Agreements 5. Disaster Response 5.1 County Resources Other Than Ambulances 5.2 Out of County Resources 5.3 Mass Casualty Incident Plan 6. Coordination 7. EMS Responder Guidelines 8. Personnel and Equipment Resources 9. Emergency Communications and Systems Access 9.1 Telephone Access 9.2 Dispatch Procedures 9.3 Radio System 10. Emergency Medical Services Dispatcher Training Chapter 8.30 APPENDIX A (1/2013) Page 16 Page 16 Page 17 Page 17 Page 17 Page 17 Page 17 Page 18 Page 18 Page 18 Page 19 Page 19 Page 20 Page 20 Page 20 Page 21 Page 21 Page 21 Page 21 Page 22 Page 22 Page 22 Page 22 Page 23 Page 23 Page 23 Page 23 Page 24 Page 24 Page 25 VII. Provider Selection 1. Reassignment of an ASA Page 25 2. Application Process for Applying for an ASA Page 25 3. Notification of Vacating an ASA Page 25 4. Maintenance of Level of Service Page 26 VIII. Franchise Agreement Page 26 IX. County Ordinances and Rules Page 26 Chapter 8.30 APPENDIX A (1/2013) Revised Statutes; 5. be equipped with a back-up power source capable of maintaining all functions of the center. b. The ambulance service provider shall equip and maintain equipment with multi -channel radios in each ambulance that allows for the transmission and reception with dispatch, medical resource hospitals, and mutual aid equipment. 10. Emergency Medical Services Dispatcher Training. 10.1 Deschutes County EMS dispatchers must successfully complete an Emergency Medical Dispatch (EMD) training course as approved by the Oregon Emergency Management Division and the Board on Public Safety Standards and Training. 10.2 All EMS dispatchers are encouraged to attend any class, course or program which will enhance their dispatching abilities and skills. VII PROVIDER SELECTION 1. Reassignment of an ASA. In the event that a reassignment of an ASA is necessary, the committee shall make a written recommendation to the Board. The committee shall develop appropriate criteria, utilizing the selection process described in this plan to be presented to the Board for consideration and/or action by the Board. 2. Application Process for Applying for an ASA. See Deschutes County Code 8.30 regarding application process for applying for an ASA. 3. Notification of Vacating an ASA. In the event that an ASA provider wishes to vacate its ASA, the provider shall provide at least sixty (60) days written notice to the Board. The ASA provider must provide notification in accordance with the provisions of the initial service agreement or contract. 4. Maintenance of Level of Service. In the event that an ASA provider is unable to comply with the standards promulgated for the ASA by this Plan, the provider will promptly notify the Board in writing of its inability to comply and identify which standards are involved. The Board will determine if other qualified providers are available for the ASA who can comply with the standards. If the Board determines no other qualified providers are available, it will apply to the Division for a variance under ORS 682.285 for a variance from the standards so that continuous ambulance service may be maintained by the existing provider. VIII. Franchise Agreements. Franchises shall be awarded for a minimum : year timeframe unless changed by the Board. Only one franchisee may serve in an ASA area. Chapter 8.30 APPENDIX A (1/2013) 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 3, 2018 DATE: December 11, 2017 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: Update on Web Project ATTENDANCE: Whitney Hale, Administration. Eric Ballinger, Information Technology. SUMMARY: Update on website project. TES { 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 3, 2018 DATE: December 27, 2017 FROM: Nick Lelack, Community Development, 541-385-1708 TITLE OF AGENDA ITEM: Staffing Request ATTENDANCE: Nick Lelack, Randy Scheid, Sherri Pinner, Lori Furlong SUMMARY: The purpose of this work session is to request four (4) new full time equivalent (FTE) employees in the Community Development Department (CDD) to meet increasing service demands. Specifically, the proposed FTE include: 1. Permit Technician to meet increasing demands in Sisters and La Pine. 2. Building Safety Inspector III to meet increasing demands in Sisters and La Pine. 3. Senior Planner to meet increasing demands to review and process complex and contested land use applications and to respond to complicated citizen inquiries. 4. Lone Range Associate Planner or Resources to initiate additional work plan and Board priority projects to meet and/or address community needs and issues. 8 0 Deschutes County Community Development Department Planning Building Safety Environmental Soils Code Enforcement P.O. Box 6005 117 NW Lafayette Ave., Bend, OR 97703 MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Nick Lelack, AICP, Director DATE: January 3, 2018 SUBJECT: Community Development Department Staffing Proposal I. SUMMARY Telephone: 541-388-6575 www.deschutes.org/cd The purpose of this memorandum is to request four (4) new full time equivalent (FTE) employees in the Community Development Department (CDD) to meet increasing service demands. Specifically, the proposed FTE include: 1. Permit Technician to meet increasing demands in Sisters and La Pine. 2. Building Safety Inspector III to meet increasing demands in Sisters and La Pine. 3. Senior Planner to meet increasing demands to review and process complex and contested land use applications and to respond to complicated citizen inquiries. 4. Long Range Associate Planner or Resources to initiate additional work plan and Board priority projects to meet and/or address community needs and issues. II. PERMIT VOLUMES & PROJECTIONS, STAFFING This section summarizes historical and current permit volumes and staffing levels. It also provides anecdotal comments from the cities of Sisters and La Pine on projected 2018 development activity. Graph 1 highlights new single-family home permits from July 1, 2002 to December 18, 2017. Single- family home permits indicate the Building Safety Division's overall business activity. It does not, however, capture commercial activity, which is projected to increase significantly in 2018-19. Graph 2 shows all Planning Division land use applications for the same time period. The total number of projected applications for 2017-18 is 1,050. The Coordinated Services Division processes and facilitates permitting for the both divisions. Graph 1 Graph 2 -2- The Building Safety and Coordinated Services Divisions provide services in the cities of La Pine and Sisters. CDD coordinated with city staff in each municipality to gain an understanding of expected development activity in 2018 to determine appropriate staffing levels. The City of La Pine expects development in 2018 to exceed levels achieved in 2017. Staff anticipate residential new construction to continue as available properties in current subdivisions are being developed. Housing Works will break ground on a 42 -unit multi -family affordable housing project in early 2018 with a scheduled opening in fall 2018. Several new buildings are also scheduled to be constructed within the industrial park. The City is planning to hire a full-time planner in January 2018 to assist with this increase in development. The City of Sisters also expects an increase in development. Anticipated residential projects include Cowboy Court Apartments with 22 -unit multi -family; Hayden Homes Village at Cold Springs with 24 -unit multi -family; and Housing Works 48 -unit multi -family developments. Additional anticipated residential development includes an estimated 93 single-family dwelling units within six or more various subdivisions. Anticipated commercial projects include Laird Superfood; three mixed site uses; Trout Creek Lodge (39 rooms); The Lodge Assisted Living Facility; School District Bus garage; Celia's Hotel and a 7500 s.f. general retail site. Graph 3 illustrates CDD staffing levels prior to and during the Great Recession. The department has conservatively increased staffing levels to meet business demands while also significantly improving efficiencies across all divisions. Graph 3 Note: FY 03 — FY 10 includes 8 fte for environmental health drinking water and license facilities programs. These programs and staff were transferred to Health Services in FY 11. -3- A. Coordinated Services CDD provides coordination of permitting and "front line" direct services to customers at the Redmond, Sisters and La Pine city halls one day a week at each location. An assessment of permit applications and customer contacts at each of the city halls reveal a decrease in activity in Redmond and an increase in activity in both Sisters and La Pine. CDD proposes expanding hours to two days a week in La Pine and Sisters. Challenges • Permit technician staff are currently meeting with 8-12 customers during the current 6 hour shifts in both Sisters and La Pine (hours are 9 am -4 pm — staff travelling from Bend to each location). Customers often wait 30-60 minutes or more for assistance. At this volume, there is limited opportunity to return phone calls, emails or process applications. • Significant coordination is required with city planners for applications located within the cities through the entire process, which can increase processing time. • With the increasing complexity of issues, seen in almost every application, particularly in cities, the application processing time has increased to accommodate the additional required analysis. • Staff is often in the position of apologizing for service delays, quickly becoming a part of the normal course of business. Customers are voicing frustration over wait times. • No seasonal fluctuations for the last few years. • Permit technician overtime has increased significantly this past year, including evenings and some weekends. Proposal/Recommendation CDD recommends adding one (1) permit technician to achieve the following performance results: 1) Allow for one additional day in La Pine and Sisters per week. 2) Significantly reduce wait time for customers at the counter and response time to customer inquiries on the telephone and via email. 3) Reduce permit processing timelines by up to 2 days (from 4 days) for permit technicians' coordinating permit issuance. 4) Provide capacity to conduct special projects, assist with staff shortages—trainings, vacations, days when 1 or 2 permit technicians are working in satellite offices. 5) Reduce timelines to process e -permits from 24-36 hours to same day or within 24 hours. -4- Cost/Financial Impact The total cost of this position is estimated at $72,345 to cover the fully loaded rate ($67,345) and computer, training, equipment, etc. In addition, this position would reduce overtime costs paid to current staff. Increased building permit volumes and corresponding revenues are projected to cover the cost of this position in FY 17-18. While it is unclear of the timing of the increased building permit activity in La Pine and Sisters, it will be necessary to recruit, hire, and train staff early in 2018 to meet business needs for the balance of the year. In addition, CDD anticipates several retirements in this division over the next several years; this position will support succession planning. B. Building Safety The Building Safety Division provides construction plan reviews, consultation and inspections to assure compliance with state statutes, state building codes and national standards. The Building Safety Division interprets and enforces the state -mandated building codes through a process of education and a clear and fair application of the specialty codes. The Division provides all of these services throughout the rural county, the Cities of La Pine and Sisters, and various services to Lake, Jefferson, Klamath and Crook counties, the Cities of Bend, Redmond and the State of Oregon Building Codes Division on an as -needed basis. Challenges • The Building Safety Division has a performance measure to achieve an average of 6 to 10 inspection stops per day, per inspector. Over the past 28 months, beginning in July 2015, this performance measure has been achieved about one-third of the time. • Quality of inspections and coordination with customers decreases as the number of inspections per day, per staff increases. • Current staffing levels do not allow for adequate levels of coverage (inspections, plan review) during unexpected leaves and vacations, as the Division is currently experiencing. • No seasonal fluctuations for the last few years and increasing business volumes in Sisters and La Pine. • Inspection complexity has increased, particularly in cities, requiring more time per inspection. Proposal/Recommendation CDD recommends adding one (1) Building Safety Inspector III to achieve the following performance results: • Reduce the number of inspections performed daily by each inspector from 12-14 (exceeds the performance measure) to approximately 10 (just achieves performance measure of (6-10 stops per day). -5- • Increase time performing each inspection allows for communication with customers in the field, increases inspectors safety, reduces the County's liability, and improves the overall quality of inspections. Cost/Financial Impact The total cost of this position is estimated at $117,885 to cover the fully loaded rate ($89,885), vehicle ($23,000), and computer and equipment, training/certifications ($5,000). Based on information provided by the La Pine and Sisters' staff, increased building permit volumes and corresponding revenues are projected to cover the cost of this position in FY 17-18. In addition, CDD anticipates several retirements in this division over the next several years; this position will support succession planning. C. Current Planning Current Planning is responsible for reviewing land use applications for compliance with Deschutes County Code (DCC) and state law, including zoning, subdivision and development regulations, and facilitating public hearings with hearings officers and the Board. Staff is also responsible for verifying compliance with land use rules for building permit applications and septic permits; coordinating with Code Enforcement to respond to complaints and monitor conditions of approval for land use permits; performing road naming duties and assisting with addressing; and providing assistance at the public information counter, over the telephone and via email. Challenges • The Division is operating at the margins with minimal staff necessary to process land use decisions within the state mandated timelines. If a staff member is sick, resigns, or is out for an unexpected reason, the system's capacity is immediately stressed. • Public involvement in all land use applications is at unprecedented levels, including significant email/written comments and telephone conversations. The current fees did not anticipate the substantial increase in resources necessary for the significant increase in public engagement. • Counter customer volumes are increasing, but the key issue is the complex nature of citizen inquiries, challenging properties, or matters of first impression development proposals. • Planner involvement and participation in a record number of code enforcement cases and highly complex violations. This requires significant time to coordinate and assist staff and customers in efforts to understand land use regulations. • Hearings Officer and Board public hearings take significantly longer to prepare for due to the complexity of issues and volume of public input. • No seasonal fluctuations. -6- • Regular requests for pre -application meetings, often lasting between 1 to 2 hours, have increased significantly over the past three years due to marijuana applications as well as many other complex applications. • Non -fee generating activities have and continue to increase. Consequently, staff is only able to meet with customer/citizen groups at their request (not be proactive as we should to engage, inform, educate and listen), and, when staff participates in such activities, there are impacts to land use permit review timelines, delays in responding to customer inquiries, etc. • Staff planners regularly work overtime —evenings and weekends. • The Division is not meeting performance measures for land use permit turnaround times. In addition, citizen requests for information pertaining to properties, pending or potential development proposals, pre -application meetings, participate in forums to proactively engage and inform groups, etc. are regularly delayed. • Planning fees do not adequately support staffing the Division necessary to meet business needs and demands given the challenges and issues raised above. Proposal/Recommendation CDD recommends adding one (1) Senior Planner to achieve the following performance results: • Reduce the turn -around time for processing land use decisions with (45 -days) and without (21 days) public notice, including processing more complex and controversial applications, to achieve performance measures. • Avoids assistant or associate planners workings out of class.' Cost/Financial Impact The total cost of this position is estimated at $104,812 to cover the fully loaded rate ($99,812) and computer, equipment, and training ($5,000). Unfortunately, the Planning Division's fiscal year end projections may not fund this position even with increased permit volumes and corresponding revenues due to some of the financial challenges listed above. Options to cover a potential deficit: 1) FY 17-18 a. Contingency funds. b. General Fund - the amount to be determined at the end of the fiscal year based on the funding gap between fees and expenses. 2) FY 18-19 & beyond a. Increase planning fees to cover the actual cost of service for the department; or 1 Assistant and associate planners are not currently working out of class. Consequently, the Division's two senior planners and Planning Manager are often operating beyond capacity (evenings and weekends) and still not able to keep up with customer (e.g., complex development application review and processing timelines) and internal staff (e.g., code enforcement coordination) demands. -7- b. General Fund as described in 1) b. above. c. A combination of a. and b. d. Other 3) CDD reserve funds for FY 18-19 —the amount to be determined at or near the end of the fiscal year based on the actual volume and revenue increases. CDD does not recommend utilizing reserve funds to pay for services during a growth period. 4) Any combination of the above. Alternative Option If adding a senior planner is not approved, CDD recommends reclassifying a vacant assistant planner position' to a senior planner to meet the more complex business needs of the department and to avoid assistant and associate planners working out of class. Cost/Financial Impact The total cost of this reclassification is approximately $12,000. The options to cover a potential deficit are the same as those provided above. D. Long Range Planning Long -Range Planning is responsible for planning for the future of Deschutes County, including developing and implementing land use policy, updating the County Comprehensive Plan and zoning regulations, coordinating with cities and agencies on various regional planning projects, and more. Board Work Session • On December 6, CDD updated the Board on the long-range planning FY 17-18 work plan. During the discussion, staff stated that existing resources are fully utilized on current projects, and additional resources would be necessary to initiate additional projects. The Board directed staff to schedule a follow-up work session to discuss resources and/or options to initiate work plan projects and emerging Board priorities. Based on the Board's desired long-range planning policy agenda, please find below four options/alternatives for consideration: Options/Alternatives 1. Add one (1) Associate Long -Range Planner to initiate additional long-range planning projects. This adds capacity to initiate Board options. The total estimated cost of this position is $98,047 to cover the fully loaded rate (593,047) and computer, equipment, and training ($5000). Fees are not projected to cover these costs. 2. Reevaluate and consider amending the FY 17-18 Work Plan to add new projects in the current fiscal year. 2 Associate Planner Chris Schmoyer resigned Dec. 6. CDD promoted an assistant planner to this associate planner position, creating the currently vacant assistant planner position. -8- 3. Waive fees for privately initiated legislative Comprehensive Plan and/or Deschutes County Code amendments for projects the Board finds are in the public interest. This option effectively moves privately initiated applications to a higher priority. If additional staffing capacity is not approved, existing or future work plan projects may be delayed or postponed. 4. Contract out projects to qualified consultants, if qualified consultants are available and affordable. This option is often not possible with few land use consultants in Central Oregon and across the state knowledgeable of rural land use laws and regulations. CDD has an adopted budget of $30,000 for long range planning consultants. III. BOARD DIRECTION CDD requests Board direction on the proposed FTE. If the Board approves one or more of the positions, CDD and Finance will prepare the proposal for Board approval at the next regular business meeting on January 10. Position 1. Permit Technician 2. Building Safety Inspector I11 3. Senior Planner 4. Long Range Planning Table 1- CDD Staffing Decision Matrix Approve/Deny & Alternatives 1. New position 2. Reclassify vacant assistant planner position 1. New Associate Long Range Planner 2. Reevaluate and consider amending the FY 17-18 Work Plan. 3. Waive fees for privately initiated legislative amendments if the Board finds the proposal in the public interest. 4. Contract out work to qualified consultants, if available. -9- Funding Permit volumes, fees and reduced building safety reserve fund transfer are projected to cover the costs of the new position. Permit volumes, fees reduced reserve fund transfer are projected to cover the costs of the new position. Refer to options on page 7 for FY 17- 18, and FY 1849 and beyond. Additionally, see Exhibit A for year-end projections. Fees are not projected to cover the costs of the new position or fee waivers. The department has approximately $30,000 in long range consulting budget. For additional detail, see Exhibit A for year-end projections. EXHIBIT A Community Development Commissioners' Report Including Administrative Allocations FY 2017 Actual Revenues Admin -Operations $ 110,639 Admin -GIS 230 Admin -Code Enforcement 451,837 Building Safety 2,903,075 Electrical 745,810 Env Health -On Site Prog 678,469 Planning -Current 1,530,513 Planning -Long Range 577,420 Total Revenues 6,997,994 Expenditures (by division) Admin -Operations Admin -GIS - Admin -Code Enforcement 480,750 Building Safety 3,297,208 Electrical 600,042 Env Health -On Site Pgm 595,807 Planning -Current 1,514,267 Planning -Long Range 672,735 Total Expenditures 7,160,809 Revenues less Expenditures Change in Fund Balance Beginning Fund Balance Ending Fund Balance (162,815) (162,815) 2.330,492 $ 2,167,677 i Year to Date July 1, 2017 through November 30, 2017 (42% of the year) % of Actual Budget FY 2018 Budget Projected Variance 47,680 47% 102,042 109,742 7,700 0% 150 150 - 245,888 43% 565,544 571,544 6,000 1,253,374 43% 2,948,636 2,957,591 8,955 326,897 44% 743,927 728,220 (15,707) 311,425 46% 680,460 685,384 4,924 721,902 45% 1,614,855 1,614,855 - 259,653 38% 682.919 682,919 - 3,166,820 43% 7,338,533 7,350,405 11,872 47,680 47% 102,042 109,742 (7,700) D% 150 150 207,320 37% a) 559,563 544,387 15,176 1,041,659 34% a) 3,049,121 2,942,437 106,684 256,439 33% a) 766,390 745,425 20,965 247,788 40% a) 613,770 606,591 7,179 671,557 39% a) 1,705,318 1,651,554 53,764 248.065 32% a) 780,811 729,373 51,438 2,720,508 36% 7,577,165 7,329,659 247,506 446,312 (238,632) 20,746 259,378 446,312 2,167,677 $ 2,613,989 (238,632) 20,746 259,378 132% 1,640,386 2,167,677 527,291 $ 1,401,754 $ 2,188,423 $ 786,669 a) Year end projections include administrative allocations and transfers out to Reserve Funds Adminstrative Allocation Percentages by Division: Code Enforcement Building Safety 5 3% 46 7% Electrical 10 1% OnSite Septic Current Planning Long Range Planning 7 5% 15 7% 14 7% -(ES w o -< Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.orq/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of January 3, 2018 DATE: December 28, 2017 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: Preparation for a Public Hearing: Appeal of an Administrative Determination Approving a Marijuana Production Facility. RECOMMENDATION & ACTION REQUESTED: S20 Dynamics LLC received approval to convert an existing medical marijuana production facility to a recreational medical marijuana facility in the EFU Zone. The applicant proposed a maximum mature plant canopy of 5,000 square feet within five greenhouses. Two greenhouses are existing and three greenhouses are proposed. A timely appeal was filed challenging several aspects of the proposal. ATTENDANCE: Jacob Ripper, Associate Planner. SUMMARY: The purpose of this work session item is to provide an overview of the proposal, the staff decision, and issue areas that are likely to be discussed at the January 10th public hearing. This work session will also provide an opportunity for the Board to ask staff clarifying questions. All appeal concerns are discussed in detail in the attached Staff Memorandum. There are 11 attachments to the memo, which are included in this packet. 247-17-000923-A 25606 ALFALFA MARKET RD, BEND, OR Deschutes County GIS, Source: Esri; DigitalGiobe; GeoEye, Earthstar Geographies:, ONES/AirbusDS, USDA, USGS, AeroGRID, IGN, and the GIS User Community. Mailing Date: Tuesday, October 31, 2017 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd FINDINGS & DECISION FILE NUMBER: 247 -17 -000612 -AD APPLICANT: S20 Dynamics, LLC c/o Julyn Andrews 63028 Layton Avenue Bend, OR 97701 OWNER: PROPOSAL: David House 13 Lincoln Laurel Road Blairstown, NJ 07825 An application for an Administrative Determination to convert a medical marijuana production facility to a recreational marijuana production facility within the Exclusive Farm Use (EFU) zone. The applicant proposes a maximum mature plant canopy of 5,000 square feet within five greenhouses. Two of the greenhouses are existing and three greenhouses are proposed. STAFF CONTACT: Jacob Ripper, Associate Planner I. APPLICABLE CRITERIA Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zones 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 25606 Alfalfa Market Road., Bend, and is identified on County Assessor Tax Map 17-14-22, as tax lot 1400. B. Lot of Record: The subject property is a legal lot of record pursuant to the Conditional Use Permit for a nonfarm dwelling (file no. 247 -15 -000135 -CU) and a Lot of Record determination (file no. LR -05-61). Quality Services Performed with Pride C. Zoning: The property is zoned Exclusive Farm Use — Alfalfa subzone (EFU-AL), and is designated Agriculture on the Deschutes County Comprehensive Plan. D. Proposal: An application for an Administrative Determination to convert a medical marijuana production facility to a recreational marijuana production facility within the Exclusive Farm Use (EFU) zone. The applicant proposes a maximum mature plant canopy of 5,000 square feet within five greenhouses. Two of the greenhouses are existing and three greenhouses are proposed. E. Site Description: The subject property is 30 acres. The property has a varied topography of level areas and rock outcrop. The property is developed with a nonfarm dwelling and two greenhouses which currently are used for the production of medical marijuana. The property does not front a public road. Access is by an easement across properties to the south, leading from Alfalfa Market Road. The property contains several trees and brushy vegetation scattered throughout the property, as well as raised areas of natural and constructed berms, which provides some screening from adjacent properties. F. Land Use History: According to Deschutes County Community Development records, the property is associated with the following land use applications: • LR -05-61, Lot of record verification application. • D-06-26, Nonfarm dwelling deposit. • CU -07-27, Conditional use permit for a nonfarm dwelling, which expired. • 247 -15 -000064 -CU, Nonfarm dwelling deposit for the new conditional use permit. • 247 -15 -000135 -CU, Nonfarm dwelling application. G. Public Agency Comments: The Planning Division mailed a Notice of Application and received comments from the following agencies: Central Electric Cooperative: 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. Deschutes County Buildina Division: The Deschutes County Building Safety Divisions code required Access, Egress, Setback, Fire & Life Safety Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Deschutes County Senior Transportation Planner, Peter Russell: I have reviewed the transmittal materials for 247 -17 -000612 -AD for a marijuana production (growing) operation in the Exclusive Farm Use (EFU) zone at 25606 Alfalfa Market Road, aka 17-14-22, Tax Lot 1400. Deschutes County Code (DCC) at 18.116.330(6)(8) only requires proof of legal direct access to the property or access from a private easement; the traffic study requirements of DCC 18.116.310 are not applicable for a marijuana production application. Thus no traffic study can be required. 247 -17 -000612 -AD Page 2 of 17 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 is proposing three new greenhouses of 1,080 square feet each for a total of 3,240 square feet in cannabis production or support (1,080 X 3). The use would generate 1 p.m. peak hour trip (3,240 X 0.32). The resulting SDC would be $3,937 (1 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. The following agencies either had no comment or did not respond to the notice: Alfalfa Fire District, Central Oregon Irrigation District, Deputy State Fire Marshall, Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes, County Sheriff, Oregon Liquor Control Commission. H. Public Comments: The Planning Division mailed a written notice of this action to property owners within 750 feet of the subject property on August 2, 2017. The following concerns were expressed in two comment letters which staff received from the public. In summary, staff has attempted to capture most impacts, comments, requests, and concerns identified by the public in written comments received prior to the date of this decision: 1. Residential subdivision nearby (identified as Cascades View Estates). 2. Odor control. 3. Size (area measurement) of mature plant canopy. 4. Size (area measurement) of structures. 5. Unhealthy and unsafe environment concerns. 6. Commercial development on subject property may cause increased traffic. Staff Comment: The Deschutes County Code (DCC) does not allow the Planning Division to approve or deny this application based on the concerns 4 through 6 above. Applicable criteria of the DCC are addressed in the findings below. Notice Requirement: The applicant submitted a Land Use Action Sign Affidavit, dated October 20, 2017, indicating the applicant posted notice of the land use action on October 20, 2017. This does not comply with the posted notice requirements of Section 22.24.030(B) of Deschutes County Code (DCC) Title 22. DCC 22.224.030(B)(1) requires that the sign be posted on the property for, "at least 10 continuous days prior to any date set for receipt of comments". Comments can be received and included in the record at any time prior to a decision being issued, therefore, staff postponed issuing a decision for at least 10 days after October 20, 2017, to allow for an adequate time period for the posted notice. No additional comments were received by the date of this decision. J. Review Period: This application was submitted on July 25, 2017. It was deemed incomplete on August 24, 2017. After the applicant submitted additional information, the application was accepted and deemed complete on October 9, 2017. The 150th day on which the county must take final action on this application is March 8, 2018. 247 -17 -000612 -AD Page 3 of 17 III. CONCLUSIONARY FINDINGS A. 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 permitted outright in the EFU zones, subject to the provisions of DCC 18.116.330, which are reviewed below. 2. 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant did not submit building elevations or a description of the height of the structures, however, this standard can be met through a condition of approval. The following condition of approval has been added to insure compliance with this standard. Building Height: No building or structure, including greenhouses, shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of: 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The subject property does not have road or street frontage and obtains access to Alfalfa Market Road via an access easement. When a lot does not front directly on any street, the front lot line is the lot line parallel to and facing the same direction as the front lot lines of the majority of other properties in the immediate area. Based on this information, the southern property line is the front lot line. Alfalfa Market Road is a county -maintained rural arterial road and the required front yard setback is 100 feet. The submitted revised plot plan indicates the proposed structures will be a minimum of 537 feet from the southern front property line. The proposal is not for a non- farm dwelling, therefore, the required side and rear yard setbacks are 25 feet. The submitted revised plot plan indicates an eastern side yard setback of 193.5 feet, an undefined western side 247 -17 -000612 -AD Page 4 of 17 yard setback of well over 500 feet (based on the site plan scale), and a northern rear yard setback of 537 feet. The required yard setbacks of subsections A, B, and C will be met. Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. B. 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 has proposed Marijuana Production in the EFU zone. This section applies. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is a legal lot of record and is 30 acres in size. This standard is met. 2. Indoor Production and Processing. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is within the EFU zone. The applicant has proposed that all production will occur within the two existing and three proposed greenhouses, complying with these criteria. Staff includes the following condition of approval to ensure compliance with the requirements of this section. No Outdoor Production: Marijuana production is prohibited in any outdoor area. 247 -17 -000612 -AD Page 5 of 17 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: The applicant has proposed a maximum of 5,000 square feet in mature plant canopy area, as allowed under section (b) for properties equal to or greater than 10 acres in lot area. This is Tess than the maximum of section (c) allowed above for properties equal to or greater than 20 acres in size. The subject parcel is 30 acres in size. The Oregon Administrative Rules (OAR) Division 25, 845-025-1015(23) defines immature marijuana as, "'Immature marijuana plant' means a marijuana plant that is not flowering". OAR 845-025-1015(38) defines mature marijuana as, -Mature marijuana plant' means a marijuana plant that is not an immature marijuana plant". Based on these definitions and the DCC code section above, staff notes that mature plant canopy includes the square footage where flowering marijuana plants are located and does not include the square footage where non -flowing marijuana plants are located. An opposition letter challenged the approximate total of 17,000 square feet of greenhouse space for 5,000 square feet of mature plant canopy. Staff notes that the total square footage of all greenhouses is calculated to be 18,140 square feet. In a letter dated August 24, 2017, staff requested further information from the applicant as to why the added 13,140 square feet of greenhouse space is required in addition to the 5,000 square feet for mature plant canopy. In a response to staff's letter, the applicant submitted an operations plan. The plan states, in part: The two existing greenhouses will have walk ways and a 10 foot equipment space and working space at each end of the greenhouse limiting the square footage of canopy to 2400 sq. ft. in each greenhouse. This will ensure that no more than 5,000 square feet of canopy space will be dedicated to the mature flowering plants at any time. As well flowering plants will only be kept on rolling trays with a total square footage of 1800 ft. Most of this time this flowering greenhouses [sic] will be used for controlled seed breeding. The 13,140 square feet of greenhouse space that is not designated as flowering canopy will be used to cultivate a large variety of rare and highly desirable specific genetic cultivars and the development of new cultivars. Because of this we dedicate a large amount of space to cultivating "mother plants" and propagating them through the process of cloning. 247 -17 -000612 -AD Page 6 of 17 Because of this we do not utilize a staggered flowering and growing program in which we would have multiple stages of flowering and vegetative plants in each of their respective greenhouse spaces and harvested in small frequent amounts. These various stages of plant growth occupy different amounts of space due to the difference in plant sizes. In turn it lessens the space requirements for vegetative growth, but can create pest management issues. We flower the designated flowering canopy in each greenhouse through light deprivation systems. This creates a singular harvest date in each greenhouse. This monolithic harvest helps to control pests and plant diseases. We are more able to manage plants through their flowering cycle and plants can be treated for pest up to a certain point in flower and after that they cannot. Having a greenhouse with crops in various stages of flowering creates a risk of overspray and contamination of finished product. As well having a crop harvest all at the same time allows for the ability to sterilize each greenhouse after a harvest, and is key to proper pest control. The space occupied by plants in the vegetative stage will be lighted with lighting substantial enough to maintain the light duration and intensity requirements for vegetative cannabis. These greenhouse's [sic] designated for vegetative growth will also be equipped with automatic light deprivation systems to prevent light from escaping the greenhouses during night time hours. Staff understands this operation plan describes that the mature canopy will be limited to the existing greenhouses, mature and immature canopies will be controlled by lighting supplementation and deprivation, and considerable space within the greenhouses will be used for immature marijuana plants. The DCC does not limit to the size of immature plant canopy and the applicant has stated they will not exceed 5,000 square feet of mature plant canopy at any time, therefore, staff finds that the mature plant canopy criterion above will be met. Staff includes the following condition of approval to ensure ongoing compliance with the requirements of this section. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall not exceed 5,000 square feet at any time. 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. 247 -17 -000612 -AD Page 7 of 17 FINDING: The proposal includes only one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site with no continued use of the OHA registered medical marijuana grow site. The applicant proposed to transition to the OLCC program. This criterion will be met. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The revised plot plan indicates the marijuana production structures are at least 193.5 feet from all property lines. The submitted materials indicate that the closest off-site dwelling is approximately 537 feet from the marijuana production area. Based on review of the surrounding properties, staff finds that the closest off-site dwelling appears to be located to the west of the subject property and is approximately 860 feet from the production area. Either measurement exceeds the requirement under subsection (b) above. No setback exception has been requested. These criteria will met. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: 1. 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; 11. 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; A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. 247 -17 -000612 -AD Page 8 of 17 c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: The applicant states the subject property is over 51,000 feet from any of the uses listed in this section. There are 14 tax lots wholly or partially within 1,000 feet of the subject property. According to staff review of Deschutes County records, none of these properties appear to be in a use described in this section or are subject to subsection (c). These criteria will be met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. FINDING: As discussed above, the applicant proposes a maximum mature plant canopy size of 5,000 square feet, therefore, these criteria do not apply. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. 247 -17 -000612 -AD Page 9 of 17 FINDING: The applicant states, "The buildings have automated shades that cover any translucent material on the buildings", and, "the lights are shielded and oriented towards the plants". The applicant further states in the operations plan that, "[the] greenhouses designated for vegetative growth will also be equipped with automatic Tight deprivation systems to prevent light from escaping the greenhouses during night time hours". Staff finds these criteria can 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, 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 Tight emitted directly by the Tamp 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 Tight cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(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 revised mechanical engineer's report prepared by licensed mechanical engineer Rob James, PE of ColeBreit Engineering. The report states the applicants will use a ring -type fogger in the greenhouses which eliminates odor from the air being expelled through the exhaust fans. The report states a fogger will need to supply each exhaust fan. In addition to the greenhouses, the applicant's revised site plan includes a fenced composting area and the engineer's report states the composting area must be enclosed and equipped with fans for pass through ventilation. Staff finds these criteria will be met and adds the following condition to ensure ongoing compliance with the requirements of this section. 247 -17 -000612 -AD Page 10 of 17 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 report from a licensed mechanical engineer, as referenced above, which states that cooling equipment will run intermittently when there is a call for cooling. The greenhouses will or already have "Typhoon" type exhaust fans installed within the wall of the structure for cooling purposes. The greenhouses will or already have wall -hung space heaters installed within the interior of the buildings, where the report states that the building walls provide adequate sounds insulation. The report goes on to state that mechanical sound levels at the nearest (eastern) property line were virtually imperceptible from ambient sound levels. The report states: Ambient sound pressure levels, with no equipment running, at the nearest East property line was measured at 7:00 a.m. at 42 dBA. With the fans running the sound pressure measurement at the same location was 42.6 dBA. The difference of 0.6 dBA is less than 3 dBA which (according to the US Department of Transportation) studies have shown is barely perceptible to the human ear. No sound pressure level readings on the property were measured below 30 dBA regardless of mechanical equipment operation. As no equipment runs continuously, additional growing buildings constructed in the same manner as the existing structure will comply with the code regarding noise mitigation. It is our opinion that since the mechanical equipment exterior to the building will operate intermittently upon call for cooling and since a difference of 0.6 dBA is not perceptible to the human ear, the property will comply with DCC 18.116.330(8)(11)(a). Based on the findings and conclusions in the registered mechanical engineer's report, staff finds this criterion will be met. Staff adds the following condition to ensure ongoing 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. 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. 247 -17 -000612 -AD Page 11 of 17 b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: The subject property is not in the Landscape Management or the Wildlife Area Combining Zone. No fencing or razor wire is proposed except for a small fenced area around the composting area. The property contains numerous trees, vegetated areas, and earthen berms that act to screen the proposed structures from view from the public right of way and adjacent properties. The applicant submitted a site plan identifying all vegetation to be retained and maintained, as well as where vegetation will be removed to accommodate the proposed structures. Furthermore, the structures exceeds setbacks from property lines required by DCC sections 18.16.070 and 18.116.330(6)(6). Staff finds these criteria can be met and adds the following condition to ensure compliance with the requirements of this section. Fencing: 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. 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 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 submitted a letter dated May 30, 2017 from Bend Water Hauling, LLC, stating water will be delivered to the subject property and included contact information, however, 247 -17 -000612 -AD Page 12 of 17 the applicant informed staff that they will not be using this water source and will use a different water delivery company. This is because Bend Water Hauling was unwilling to identify a use in their letter, as staff had requested'. The applicant submitted a letter dated October 6, 2017 from Alfalfa Water, LLC, stating that water will be delivered to the subject property. This letter goes on to describe the use as marijuana production and that the applicant is allowed to purchase water from Alfalfa Water, LLC for commercial use. This criterion is met. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing is proposed. This section does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: The applicant submitted a "will serve" letter from the Central Electric Cooperative (CEC) dated June 1, 2017, including information identifying the use as marijuana production and that the electrical load can be provided for. The letter from CEC states: In response to your inquiry, please be advised that the property located UL T.l 7S., R.14E., W.M., Section 22, Tax Lot 1400 in Deschutes County, Oregon, is within the service• area of Central Electric Cooperative, Inc. Central Electric Cooperative has reviewed the provided load information (200 amp Single phase service) associated with the submitted Cannabis Grow Facility and is willing and able to serve this location in accordance with the rates and policies and of Central Electric Cooperative. This 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. FINDING: The applicant states that security cameras will be directed to record, "the licensed premises, which is located near the center of the property". This standard will be met. Staff 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 1 The Board of County Commissioner's land use decision on Rubio (file 247 -16 -000600 -AD, 247-17- 000036-A) stated, "The Board also notes that in subsequent applications, greater specificity in the water supply documentation is desired in terms of identifying the use associated with the water". 247 -17 -000612 -AD Page 13 of 17 control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant submitted a revised site plan identifying a secured and fenced waste disposal area, where plant waste will be composted. Staff finds this criterion can be met and adds the following condition to ensure ongoing compliance with the requirements of this section. Waste: The marijuana waste receptacle shall be stored within the secured and fenced composting area identified on the site plan, and shall be in the possession of and 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 section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(6)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(6)(10-12, 16, 17) by December 8, 2016. ly used as a medical grow site and is already subject to the above is to transition from a medical marijuana grow site to a recreational FINDING: The site is current criteria. The current proposal marijuana grow site. 247 -17 -000612 -AD 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: Page 14 of 17 1. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: None of the prohibited uses have been proposed by the applicant. Staff adds the following condition to ensure ongoing compliance with the requirements of this section. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. 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. 247 -17 -000612 -AD Page 15 of 17 Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. IV. CONCLUSION Based on the foregoing Findings, staff finds that the proposed marijuana production facility appears to 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. Use & Location: Marijuana production is conditionally approved inside the approved structures. 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. 2. Building Heiaht: No building or structure, including greenhouses, shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. 3. No Outdoor Production: Marijuana production is prohibited in any outdoor area. 4. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall not exceed 5,000 square feet at any time. 5. Lighting: 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. c. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 6. 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. 7. 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. 8. Fencing: 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. 247 -17 -000612 -AD Page 16 of 17 9. 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. 10. 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. 11. Waste: The marijuana waste receptacle shall be stored within the secured and fenced composting area identified on the site plan, and shall be in the possession of and under the control of the OLCC licensee. 12. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. 13. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. VII. DURATION OF APPROVAL: The applicant shall complete all conditions of approval and obtain placement permits the proposed use within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION ritten by: Jacob Ripper, Associate Planner Reviewed by: Peter Gutowsky, Planning Manager 247 -17 -000612 -AD Page 17 of 17 ALPINE LN BACHELOR LN CULIUS LN DEER LN 25606 ALFALFA MARKET RD, BEND 247 -17 -000612 -AD ELK LN DODDS RD ALFALFA MARKE'L RD Deschutes Ceunty (-IS, Sources Esri, USG S, tJO.AA 247 -17 -000612 -AD 4 www.deschutes.org/cd Type of Application: Appeal - BOCC Land Use Application Description of Work: Appeal of 247 -17 -000612 -AD Appeal - BOCC 247-17-000923-A APPLICATION DESCRIPTION LOCATION INFORMATION DESCHUTES COUNTY 117 NW Lafayette Avenue PO Box 6005 Bend,OR 97703 541-388-6575 cdd-webmasler@deschr Ites.ofcJ Property Address: Parcel: Owner: 25606 Alfalfa Market Rd, Bend, OR 97701 1714220001400 - Primary Address: APPLICANT INFORMATION Applicant: Business Name: Address: City: State: Zip Liz Dickson Dickson Hatfield LLC 400 SW Bluff Dr., Ste, 240 Bend OR 97702 S20 Dynamics LLC S20 Dynamics LLC 63028 Layton Ave. Bend OR 97701 William Tye 25840 Alfalfa Market Rd Bend OR 97701 APPLICATION FEES Fee Description Ouantlty Appeals - Administrative 1.00 Qty Total Fees: Printed on: 11/14/2017 Amount $250.00 $250.00 Transaction Receipt Record Number: 247-17-000923-A Receipt Number: 425145 www.deschutes.org/cd Address: 25606 ALFALFA MARKET RD, BEND, OR 97701 Parcel Number: 1714220001400 DESCRIPTION Appeals - Administrative PAYMENT METHOD Credit Card Authorization - 813193 PAYER Fee Items Paid ACCOUNT CODE 2956150 341301 DESCHUTES COUNTY 117 NW Lafayette Avenue PO Box 6005 Bend,OR 97703 Phone: 541-388-6575 cdd-webmaster@deschutes.org Receipt Date: 11/13/17 AMOUNT PAID $250.00 $250.00 Payment Summary COMMENTS AMOUNT PAID Elizabeth A Dickson $250.00 $250.00 Printed: 11/13/2017 Page 1 of 1 RECEIVED BY: NOV 1 3 2017 DELIVERED BY: 241--A-o00c\z3-Av Community Development Department Planning Million Building Softly Division Bnvironmtntai Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.orgicd APPEAL APPLICATION EVERY NOTICE OF APPEAL SHALL INCLUDE: FEE: $250 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Bit Tye, Trustee of the William R. Tye Revocable Living Trust Phone: ( 541) 408-3646 Mailing Address: 25840 Alfalfa Market Rd. Land Use Application Being Appealed: 247 -17 -000612 -AD Property Description: Township 17 Range City/State/Zip: Bend, OR 97701 14 Section 22 Tax Lot 1400 Appellant's Signature: (see attached Letter of Authorization) </ EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services Performed with Pride NOTICE OF APPEAL See attached narrative. (This page may be photocopied if additional space is needed.) 400 SW Bluff Drive, Suite 240 Bend, OR 97702 (0) 541-585-2224 • (0) 541-585-2229 August 22, 2017 Jacob Ripper, Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE: Letter of Authorization Dear Jacob, hereby authorize Liz Dickson of Dickson Hatfield, LLC, to act on my behalf regarding all land use matters before Deschutes County to which myself and/or the William R. Tye Revocable Living Trust Is a party. Sincerely, William R. Tye, Trustee William R. Tye Revocable Living Trust 25840 Alfalfa Market Rd. Bend, OR 97701 541-408-3646 APPELLANT: ATTORNEY: BEFORE THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS NOTICE OF APPEAL NARRATIVE Bill Tye, Trustee of the William R. Tye Revocable Living Trust 25840 Alfalfa Market Rd. Bend, OR 97701 541-408-3646 tvcattleco(n),vahoo.com Elizabeth Dickson Dickson Hatfield, LLC Attorneys for Appellant 400 SW Bluff Drive, Suite 240 Bend, OR 97702 541-585-2229 eadicksonrudicksonhatt ickl.com STAFF REVIEWER: Jacob Ripper, Associate Planner Deschutes County Community Development Dept. 117 NW Lafayette Ave. Bend, OR 97701 REQUEST: Appellant requests a de novo Appeal of Deschutes County Administrative Determination, File No. 247 -17 -000612 -AD. SUBJECT PROPERTY: Assessor's Map Designation Township 17S, Range 14E, Section 22, Tax Lot 1400, commonly referenced as 25606 Alfalfa Market Rd., Bend, OR 97701. 'TYE, BILL - NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 1 of 10 I. INTRODUCTION Applicant S20 Dynamics, LLC and property owner David House have requested approval to convert a non-compliant medical marijuana production facility to a recreational facility. Appellant Bill Tye states that because their existing facility is not built or operated according to applicable law, they should not be allowed to expand it. The application to expand the already illegal facility should be denied. The existing medical marijuana production facility is not compliant with the law in these ways: • Odor is not controlled; • Noise is not controlled; • Lights are not shielded; • Plants are grown outside of greenhouses; and • Water is tapped from an illegal source. County criteria applicable to the expansion application are also not satisfied by substantial evidence in the Record. Appellant Bill Tye personally has observed conditions on the neighboring site, and opposes expansion of the operation. The proposed recreational marijuana production facility does not satisfy the code in these areas: • Sufficient odor controls are not documented; • Satisfactory noise controls are not documented; • Sufficient light shielding is not proved; • Waste disposal is not compliant with code; and • Adequate legal water source is not documented. In addition, the instant application does not meet County and state codes regarding transportation impacts, though the County has thus far interpreted such criteria as inapplicable. We ask that the County reconsider this interpretation in light of the extreme degradation of the transportation system in the Alfalfa Community, where such degradation directly correlates to the increase of pot farms in the area. Applicant S20 Dynamics, LLC ("S20") has demonstrated it is not willing to comply with applicable law in its existing medical marijuana operation, and so should not be allowed to expand it. S20 proposes to build a significantly expanded facility without facilities or operations plans to comply with applicable criteria for its new recreational marijuana operation. This application is properly denied. II. APPLICABLE CRITERIA & STANDARDS ORS 475B.340 DESCHUTES COUNTY COMPREHENSIVE PLAN DESCHUTES COUNTY TRANSPORTATION SYSTEM PLAN TYE, BILL - NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 2 of 10 DESCHUTES COUNTY CODE TITLES 18 and 22 III. COMPLIANCE WITH APPLICABLE CRITERIA & STANDARDS OREGON REVISED STATUTES ORS 475B.340 — CONTROL AND REGULATION OF MARIJUANA ACT ORS 475B.340(2) [T]he governing body of a...county may adopt ordinances that impose reasonable regulations on the operations of businesses.... (3) Regulations adopted under this section must be consistent with...county comprehensive plans and zoning ordinances and applicable provisions of public health and safety laws. RESPONSE: The Board of County Commissioners (the "Board") approved Ordinance No. 2016-015 to amend Title 18, and specifically added DCC 18.116.330 to allow the cultivation, processing and sale of marijuana products under specific conditions. In so doing, the Board presumably inadvertently allowed grows to be approved without analysis of traffic impacts. The County's Comprehensive Plan ("Comp Plan"), applying public health and safety laws, requires that traffic impacts be monitored and mitigated where necessary. Failure to assess the traffic impacts of a new land use is inconsistent with the County's Comp Plan, specifically that chapter addressing its transportation system. DESCHUTES COUNTY TRANSPORTATION SYSTEM PLAN Goal 1: Achieve an efficient, safe, convenient and economically viable transportation... system. RESPONSE: This application, as documented, does not contain information sufficient to assure the Board that this Goal will be met. The instant application will increase trips to and from the site. New trips will be generated by many activities, including but not limited to: • water haulers • material deliveries (plants, coir, pipes and hoses, nozzles, sheeting, frames, light fixtures and bulbs, chemicals, tools, packaging supplies and labels) • system maintenance and repair persons • workers to water, fertilize, provide insect and bacterial control, prune, harvest, package and prepare product shipments, • inspections by officials, • product inspection by buyers, • product transport Increased trips on rural roads, such as Alfalfa Market Road, via private easement will be caused directly by approval of the proposed use. Applicant, by promising to limit mature plants (those in full bloom) to 5,000 square feet, qualifies to use Appellant Mr. Tye's easement without his permission for an undetermined number of trips. The code, as written, allows a limitless amount of cultivation on site, so long as the mature plant canopy does not exceed 5,000 square feet. This TYE, BILL -NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 3 of 10 creates a loophole in the code, such that trips generated by the many uses noted above, may still travel over Appellant Bill Tye's land, and despite the myriad effects he may suffer, no protection against such effects is offered by the County as it has interpreted the code in the staff administrative determination. The County's Comprehensive Plan must be adhered to, according to ORS 47513.340(2), as quoted above. The Comp Plan includes the Transportation System Plan ("TSP"), Goal 1, which requires an efficient, safe, convenient, and economically viable system. Allowing the existing use to increase in size by over double, without even bothering to ask for an estimate of the trips that will be generated, does not serve the efficient, safe, convenient, and economically viable system the Comp Plan, and thus state statute, mandate. The County's Comp Plan, TSP Goal 4, sets out another applicable rule by which this application is properly judged: Goal 4: Establish a transportation system supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. RESPONSE: The S20 Application for expansion requests permission to allow a significantly expanded marijuana grow in an area of Deschutes County that is already the most densely developed for marijuana production in the County. This neighborhood is not exhibiting the desired "diversified economic base" called out in the above goal. Residents report daily truck deliveries and shipments through the Alfalfa area, traffic backups as workers report to grow sites for work, and speeding by drivers coming into the area solely to work on the grows. This does not create a safe, efficient network for residential mobility. Its effect on tourism is unknows to Appellant Bill Tye. The system built in the Alfalfa area is two-lane, soft shouldered, and without sidewalks, bike lanes, or crosswalks. It is not designed to accommodate the traffic already generated by the pot grow industry in the neighborhood and is causing significant hazards for residents, particularly children and pedestrians and bicyclists less able to defend themselves against heavy and speeding traffic. Any addition to this already congested and stressed transportation system violates Deschutes County's TSP Goal 4. The policies of the TSP specify how the development process will be managed. Specifically, Policy 4.6 requires improvements will match level and impact of development. It implements this by requiring new development to analyze the impact it will have before approval. Yet County Staff now tells the Board that the code implemented in June, 2016 does not allow the Board to ask for such an analysis in situations such as that posed by the current S20 application. This interpretation is in direct contradiction to TSP Goal 4, and so is also in direct contraction to ORS 475B.340(2). The Policy reads as follows: Policy 4.6: Deschutes County shall manage the development process to obtain adequate street right-of-way and improvements commensurate with the level and impact of development. New development shall provide traffic impact analysis to assess these impacts and to help determine transportation system needs. TYE, BILL -NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 4of10 RESPONSE: This application represents new development, which is why the application is required. Yet, no traffic impact analysis is required, despite what is now being learned in the Alfalfa Community about the trips such uses generate. The Board may interpret its Policy to require such analysis, and Appellant Bill Tye requests that the Board protect its citizens and require it. Approval without failure to do so sets the County on a course in contradiction to its Comp Plan and thus state law. The County's TSP also addresses degradation, separate from the analysis requirement above. It reads as follows: Goal 10: Maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system. RESPONSE: Appellant Bill Tye and neighbors have witnesses significant traffic loads on Alfalfa Market Road. These loads are directly caused by the increase in marijuana grows in the immediate area. They have degraded the capacity of the system, to put the problem in transportation engineer terms. This degradation is a direct result of the new applications approved and built in Alfalfa, and it violates TSP Goal 10. Again, violation of the TSP is violation of the Comp Plan, which violates ORS 475B.340(2). The S20 application will create trips. No one knows how many. The County's current interpretation that no trip analysis is required has degraded the transportation system in the Alfalfa Community. This interpretation is no longer reasonable in light of increased traffic in the Alfalfa area and violates the County's Comprehensive plan, and so state law. The instant application should be required to comply with the County Comp Plan, or be denied for failure to mitigate impacts to the County's Traffic System. It is interesting to note that when Deschutes County adopted Ordinance No. 2016-015, the Findings adopted did not include any reference to these issues or their potential impacts. Perhaps this is because such impacts were not known. After 17 months of implementation of the Ordinance, we may now examine such impacts, and should interpret County Code accordingly. We turn now to that Code. DESCHUTES COUNTY CODE DCC TITLE 18- DESCHUTES COUNTY ZONING ORDINANCE DCC Chapter 18.04 DEFINITIONS DCC Section 18.04.020 Purpose A. The intent or purpose of DCC Title 18 is to promote the public health, safety, and general welfare.... TYE, BILL -NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 5 of 10 RESPONSE: Title 18, the land use/zoning code, is founded in the County's legal right to pass legislation to promote public health, safety, and welfare. This is well established in state and federal law as well. In this instance, the Board has decided to try allowing marijuana grows in Deschutes County, and watch for the effects of such use. Recent public forums held as part of the County's evaluation of marijuana production impacts in our communities revealed story after story of families unable to open windows to bring in fresh air, children restricted from playing outside, noise so loud that neighbors could not enjoy outdoor areas of their homes, and more serious impacts such as dry wells, heavy traffic, and threatening persons attracted to communities not accustomed to such persons. All of these concerns are examples of direct impacts on public health, safety, and welfare. Lack of clean air, inability to enjoy the outdoors, and the threats to clean water and safe roads are real and concrete challenges to these most basic concerns, and it is the community's right to enjoy clean wells and safe roads. We ask this Board to protect the general community's health, safety, and welfare, and deny this application. It does nothing to enhance these values, and only harms the community the Board serves. DCC Chapter 18.116 MARIJUANA PRODUCTION, PROCESSING AND RETAILING DCC Section 18.116.330 Marijuana Production, Processing, and Retailing B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: 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 treated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal or to greater odor mitigation than provided by (1) above. e. The system shall be maintained in working order and shall be in use. RESPONSE: Over the course of the half dozen or so applications considered by the Board in the marijuana grow process, it has become clear that the intent of the above language, while plausible in concept, is unenforceable in reality. This explains why odor complaints have been TYE, BILL - NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 6of10 expressed in code complaints, in public hearings, and even in the community focus group convened by the County on November 6, 2017. The County has asserted no legal authority to check installation of odor control systems, and growers claim entry without permission constitutes trespass. As a result, these high -maintenance systems may work or they may not, and the County's code provision is ineffective in practice. Neighbors have taken the guessing out of whether the systems work, merely by sniffing the air in proximity to the grow operations, and have testified uncounted times in public forums before this Board and its staff. See code enforcement complaints filed against this facility as it presently operates. Commissioner Henderson has questioned whether the detail required by the County in the application process is sufficient to assure satisfaction with this criterion. His questions have merit. 10.b., in particular, has been shown in practice to be ineffective. It requires, 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. This standard essentially relies on a mechanical engineer to have the education, the experience, and the integrity to assess a system in light of the facility it is to serve, and to be able to stand in the shoes of the Board to assure the public that the odor known to be produced by such grows will be controlled. So far, we have heard from engineers who merely mouth the words of the standard. This is not "a report." This is not "demonstrating." Odor is the single most common complaint of the many neighbors who've testified about living near grows. The Board will best serve its electorate by requiring a mechanical engineer to prove themselves knowledgeable and honest in their assessment of the proposed system. The instant application does not satisfy these requirements. Colebreit engineering's September 13, 2017 letter reiterates the code, and then notes that the applicant has installed louvers and prop fans, plans to compost and will need to contain and vent that, and future buildings will need "the same natural ventilation system as the existing building to comply with this letter. The exhaust air must be treated for odor control. You have indicated that you intend to utilize fogger technology for odor control at your growing facility." The Colebreit letter goes on to describe a generic type of "ring -type fogger." It states it "shall be adequate." It does not describe a specific type, model number, size, or model type that would be required to control odor in the 5 buildings proposed, or their size. It is not a report. It does not "demonstrate." It is inadequate and should be rejected as insufficient to meet the County's code requirement. The Colebreit letter does note that "we have observed" such a unit at a similar facility. The language used implies that the engineer author, Mr. James, or his associates have done so once. In conclusion, careful reading of the letter may reasonably lead one to conclude that Mr. James has never seen one of these units in operation, and furthermore, has made no demonstration that such generic type units would work: • In these 5 structures • With these climate conditions • Under these grow conditions TYE, BILL -NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 7 of 10 • Growing these plants (applicant claims they will be highly specialized through 8,000 sf of cloning operations to serve the 5,000 sf of mature canopy plants). In conclusion, the Colebreit letter is not a report, does not demonstrate what's required, and should not be accepted for the truth of what's asserted therein. The Odor control requirements of the DCC are not satisfied. 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. RESPONSE: Colebreit Engineering's September 13, 2017 letter was also offered for compliance with the County's noise control requirement. Again, Mr. James restated the code provision called out above. He then argues that because the systems cycle on and off, they're not sustained. Appellant Bill Tye finds this mincing of words unpersuasive to prove compliance. Mr. James then discusses existing systems in the 2 greenhouses currently in operation for production of medical marijuana. He claims that the noise produced by the existing systems is "barely perceptible" at property lines after measuring ambient noise as background. He then concludes that "[a]s no equipment runs continuously, additional growing buildings constructed in the same manner as the existing structure will comply with the code regarding noise mitigation. It is our opinion that since the mechanical equipment exterior to the building will operate intermittently upon call for cooling and since a difference of 0.6 Dba is not perceitible to the human ear, the property will comply...." This analysis is insufficient for the following reasons: 1. He is measuring a current system, not the new system that is the subject of the application. 2. He is assuming that the new operation will work the same as the existing, despite representations in the application that it will be significantly different, with focus on cloning. 3. Mr. James never states that he's personally visited the site, or observed the claims made in the letter. Actual personnel used to make the limited observations are unknown. 4. The existing system emits loud noise at many hours, according to neighbor and Appellant Bill Tye. Two greenhouses are easily heard at his property, let alone five in an expanded operation as proposed. Code compliance complaints filed verify these violations. 5. Such analysis only measures the fans. Such operations may include loud trucks, pumps, construction, and various other noise -making operations. None are considered in the engineer's letter. The engineer's letter provided does not satisfy the applicable criterion. Observations of the existing operation expressly contradict the conclusions Mr. James draws, making its probative TYE, BILL - NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 8 of 10 value questionable. The standard is not demonstrated as met. The application is properly denied. 13. Water. The applicant shall provide: *** b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider. RESPONSE: Applicant S20 relies on a statement of service from Alfalfa Water LLC. Alfalfa Water LLC's permit is not usable for nursery use or irrigation use, as required by state law. See Exhibit A, attached and incorporated by this reference. Because the water drawn from the Alfalfa Water LLC well may not be used for irrigation or nursery purposes, but only industrial or commercial, this source of water may not legally be relied upon to satisfy this criterion. Applicant has not provided a legal source of water for the proposed use, and such application is properly denied. This is particularly concerning in the Alfalfa area, where static water levels over 600 feet deep are dropping throughout the basin, in direct correlation to the addition of well use (under irrigation and nursery permits) for the recent influx of marijuana grows in the community. OWRD Water Master Kyle Gorman has admitted to local residents that OWRD can't catch illegal users because they can't go on site and check and wells are largely unmetered. This concern is becoming critical for neighbors having to drill deeper wells to chase water being taken illegally by growers. Water "will serve" statements should be supported by evidence of legal withdrawal. Alfalfa Water LLC does not hold a certificate for its well that allows the water to be used for this purpose. This application is properly denied. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. RESPONSE: Offered "will serve" letters do not satisfy the requirement that the Applicant provide responses particular to "the operation." Here, significant expansion is proposed, complete with proposed ring-foggers and fans and a complex light system designed to serve the intensive clone operation. The letter provided is insufficient and should be disclaimed as not substantial evidence necessary to meet this requirement. 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). RESPONSE: Mr. James' letter briefly references what should be constructed. No proposal specifics are offered to show what Applicant proposes will be constructed. This is insufficient information to meet the standard of this criterion. TYE, BILL - NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 9 of 10 Iv. CONCLUSION The submitted application does not meet code requirements or larger public policy needs of our community. Appellant Bill Tye asks this Board to deny the subject S20 application. Submitted this 13th day of November, 2017, by: Elizabeth A. Dickson Attorney for Appellant EAD/mls Cc: Client Encl: Exhibit A attached as noted. TYE, BILL - NOTICE OF APPEAL OF 247 -17 -000612 -AD Page 10 of 10 -14 STATE OF OREGON COUNTY OF DESCHUTES PERMIT TO APPROPRIATE THE PUBLIC WATERS THIS PERMIT IS HEREBY ISSUED TO ALFRED G AND CLAUDIA G GREEN 26161 WILLARD ROAD BEND, OR 97701 The specific limits and conditions of the use are listed below. APPLICATION FILE NUMBER: G-15635 SOURCE OF WATER: A WELL IN CROOKED RIVER BASIN PURPOSE OR USE: COMMERCIAL USE (INDUSTRIAL) MAXIMUM RATE: 0.045 CUBIC FOOT PER SECOND PERIOD OF USE: YEAR ROUND DATE OF PRIORITY: OCTOBER 19, 2001 WELL LOCATION: NE NW ;1, SECTION 26, T17S, R14E, W.M.; 66 FEET SOUTH & 689 FEET WEST FROM N 1/4 CORNER, SECTION 26 THE PLACE OF USE IS LOtATED AS FOLLOWS: NE ;1 NW SECTION 26 TOWNSHIP 17 SOUTH, RANGE 14 EAST, W.M. Measurement, recording and reporting conditions: A. Before water use may begin under this permit, the permittee shall install a meter or other suitable measuring device as approved by the Director. The permittee shall maintain the meter or measuring device in good working order, shall keep a complete record of the amount of water used each month and shall submit a report which includes the recorded water use measurements to the Department annually or more frequently as may be required by the Director. Further, the Director may require the permittee to report Application G-15635 PERMIT G-15616 EXHIBIT L OF general water use information, including the place and nature of use of water under the permit. B. The permittee shall allow the watermaster access to the meter or measuring device; provided however, where the meter or measuring device is located within a private structure, the watermaster shall request access upon reasonable notice. Mitigation Obligation: 4.9 acre-feet in the General Zone of Impact (anywhere in the Deschutes River Basin above the Madras gage, located on the Deschutes River below Lake Billy Chinook.) Mitigation Source: Obtain 4.9 Mitigation Credits, or suitable replacement mitigation tht meets the requirements of OAR 690- 505-0610(2)-(5), within the General Zone of Impact. Mitigation water must be legally protected instream for instream use within the General Zone of Impact and committed for the life of the permit and subsequent certificate(s). Regulation of the use and/or cancellation of the permit, or subsequent certificate(s), will occur if the required mitigation is not maintained. The permittee shall provide additional mitigation if the Department determines that average annual consumptive use of the subject appropriation has increased beyond the originally mitigated amount. If mitigation is from a secondary right for stored water from a storage project not owned or operated by the permittee the use of water under this right is subject to the terms and conditions of a valid contract, a copy of which must be on file in the records of the Water Resources Department prior to use of water. Failure to comply with these mitigation conditions shall result in the Department regulating the ground water permit, or subsequent certificate(s), proposing to deny any permit extension application for the ground water permit, and proposing to cancel the ground water permit, or subsequent certificate(s). Use of water under authority of this permit may be regulated if analysis of data available after the permit is issued discloses Application G-15635 PERMIT G-15616 I: X1;1 11 that the appropriation will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife in effect as of the priority date of the right or as those quantities may be subsequently reduced. The use of ground water allowed under the terms of this permit will not be subject to regulation for Scenic Waterway flows so long as mitigation as required herein is maintained. STANDARD CONDITIONS If substantial interference with a senior water right occurs due to withdrawal of water from any well listed on this permit, then use of water from the well(s) shall be discontinued or reduced and/or the schedule of withdrawal shall be regulated until or unless the Department approves or implements an alternative administrative action to mitigate the interference. The Department encourages junior and senior appropriators to jointly develop plans to mitigate interferences. The wells shall be constructed in accordance with the General Standards for the Construction and Maintenance of Water Wells in Oregon. The works shall be equipped with a usable access port, and may also include an air line and pressure gauge adequate to determine water level elevation in the well at all times. Prior to receiving a certificate of water right, the permit holder shall submit the results of a pump test meeting the department's standards, to the Water Resources Department. The Director may require water level or pump test results every ten years thereafter. Failure to comply with any of the provisions of this permit may result in action including, but not limited to, restrictions on the use, civil penalties, or cancellation of the permit. This permit is for the beneficial use of water without waste. The water user is advised that new regulations may require the use of best practical technologies or conservation practices to achieve this end. By law, the land use associated with this water use must be in compliance with statewide land -use goals and any local acknowledged land -use plan. The use of water shall be limited when it interferes with any prior surface or ground water rights. Application G-15635 PERMIT G-15616 Complete application of the water to the use shall be made on or before October 1, 2008. If the water is not completely applied before this date, and the permittee wishes to continue development under the permit, the permittee must submit an application for extension of time, which may be approved based upon the merit of the application. Within one year after complete application of water to the proposed use, the permittee shall submit a claim of beneficial use, which includes a map and report, prepared by a Certified Water Rights Examiner (CWRE). Issued Ma �i , 2004 14Y 'Pauly, Director WateJ iesources Department ASSIGNMENT OF PERMIT: Pursuant to ORS 537.220, this permit may be assigned to a party other than the permittee named hereon, if the land the permit is associated with changes ownership, or if the permittee is an organization whose name changes as a result of sale or merger. Request for Assignment forms are available from the Oregon Water Resources Department web site at http//www.wrd.state.or.us/, or may be requested from the Department at 503-986-0801 or Water Right Application Section, Oregon Water Resources Department, 725 Summer St NE Ste A, Salem OR 97301-1271. MAILING ADDRESS CHANGES: If the mailing address of the permittee named hereon changes, it is important that the Oregon Water Resources Department be informed of the change. Address changes must be submitted in writing with the permittee's signature to Water Right Application Section, Oregon Water Resources Department, 725 Summer St NE Ste A, Salem OR 97301-1271. REAL ESTATE TRANSACTIONS: Pursuant to ORS 537.330, in any transaction for the conveyance of real estate that includes any portion of the lands described in this permit, the seller of the real estate shall, upon accepting an offer to purchase that real Application G-15635 Water Resources Department PERMIT G-15616 Basin 5 huffmaam District 11 estate, also inform the purchaser in writing whether any permit, transfer approval order, or certificate evidencing the water right is available and that the seller will deliver any permit, transfer approval order or certificate to the purchaser at closing, if the permit, transfer approval order or certificate is available. CULTURAL RESOURCES PROTECTION LAWS: Permittees involved in ground -disturbing activities should be aware of federal and state cultural resources protection laws. ORS 358.920 prohibits the excavation, injury, destruction or alteration of an archeological site or object, or removal of archeological objects from public and private lands without an archeological permit issued by the State Historic Preservation Office. 16 USC 470, Section 106, National Historic Preservation Act of 1966 requires a federal agency, prior to any undertaking to take into account the effect of the undertaking that is included on or eligible for inclusion in the National Register. For further information, contact the State Historic Preservation Office at 503-378-4168, extension 232. Application G-15635 Basin 5 huffmaam Water Resources Department PERMIT G-15616 District 11 Chapter 18.116. SUPPLEMENTARY PROVISIONS 18.116.330. Marijuana Production, Processing, and Retailing A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2, Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, TuI, RI, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, TuI, RC, RI, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. 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. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 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. 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 Chapter 18.116 (2/2017) parcel or lot. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; Chapter 18.116 (2/2017) iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. 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. 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. 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. 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. Chapter 18.116 (2/2017) b. Fencing shall be fmished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or c. Proof from the Oregon Water Resources Depal talent that the water to be used is from a source that does not require a water right. 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. 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. 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. 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). 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. 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. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; Chapter 18.116 (2/2017) 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. b. In the MUA-10 Zone, the following uses are prohibited: i. Commercial activities in conjunction with farm use when carried on in conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. C. Marijuana Retailing. Marijuana retailing, including recreational and medical marijuana sales, shall be subject to the following standards and criteria: 1. Hours. Hours of operation shall be no earlier than 9:00 a.m. and no later than 7:00 p.m. on the same day. 2. Odor. The building, or portion thereof, used for marijuana retailing shall be designed or equipped to prevent detection of marijuana plant odor off premise by a person of normal sensitivity. 3. Window Service. The use shall not have a walk-up or drive-thru window service. 4. 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 registrant. 5. Minors. No person under the age of 21 shall be permitted to be present in the building, or portion thereof, occupied by the marijuana retailer, except as allowed by state law. 6. Co -Location of Related Activities and Uses. Marijuana and tobacco products shall not be smoked, ingested, or otherwise consumed in the building space occupied by the marijuana retailer. In addition, marijuana retailing shall not be co -located on the same lot or parcel or within the same building with any marijuana social club or marijuana smoking club. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1,000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot Chapter 18.116 (2/2017) appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed family child care which occurs at or in residential structures; iv. A youth activity center; v. National monuments and state parks; and vi. Any other marijuana retail facility licensed by the OLCC or marijuana dispensary registered with the OHA. b. For purposes of DCC 18.116.330(B)(7), distance shall be measured from the lot line of the affected property to the closest point of the building space occupied by the marijuana retailer. For purposes of DCC 18.116.330(B)(7)(a)( vi), distance shall be measured from the closest point of the building space occupied by one marijuana retailer to the closest point of the building space occupied by the other marijuana retailer. c. A change in use to another property to a use identified in DCC 18.116.330(B)(7), after a marijuana retailer has been licensed by or registered with the State of Oregon shall not result in the marijuana retailer being in violation of DCC 18.116.330(B)(7). D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). (Ord. 2016-015 §10, 2016) 18.116.340. Marijuana Production Registered by the Oregon Health Authority (OHA) Chapter 18.116 (2/2017) A. Applicability. Section 18.116.340 applies to: 1. All marijuana production registered by OHA prior to June 1, 2016; and 2. All marijuana production registered by OHA on or after June 1 2016 until the effective date of Ordinances 2016-015, 2016-16, 2016-17, and 2016-18, at which time Ordinances 2016-015 through Ordinance 2016-018 shall apply. B. All marijuana production registered by OHA prior to June 1, 2016 shall comply with the following standards by September 15, 2016: 1. Lighting. Lighting shall be regulated as follows: d. 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. e. 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. f. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. C. All marijuana production registered by OHA prior to June 1, 2016 shall comply with the following standards by December 15, 2016: 1. 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. 2. 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 not subject to the Right to Farm Chapter 18.116 (2/2017) protections in DCC 9.12 and ORS 30.395. Intermittent noise for accepted farming practices is however permitted. 3. 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: e. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. f. 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. g. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. h. 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. 4. Water. The applicant shall provide: d. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Depaitment; or e. 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 f. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. 5. 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. 6. 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). D. All new marijuana production registered by OHA on or after June 1, 2016 shall comply DCC 18.116.340(A -C) and the following standards: 1. Shall only be located in the following zones a. EFU; b. MUA-10; or c. Rural Industrial in the vicinity of Deschutes Junction. 2. Minimum Lot Area. b. In the EFU and MUA-10 zones, the subject property shall have a minimum lot area of five (5) acres. 3. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with medical marijuana production on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. Chapter 18.116 (2/2017) 4.. Setbacks. The following setbacks shall apply to all marijuana production areas and buildings: c. Minimum Yard Setback/Distance from Lot Lines: 100 feet. d. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. c. Exception: Reductions to these setback requirements may be granted at the discretion of the Planning Director or Hearings Body provided the applicant demonstrates that the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. 5. Indoor Production and Processing. d. In the MUA-10 zone, marijuana production 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. e. In the EFU zone, marijuana production shall only be located in buildings, including greenhouses, hoop houses, and similar structures. f. In all zones, marijuana production is prohibited in any outdoor area. 6. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: f. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. g. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. h. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. i. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. j. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. Chapter 18.116 (2/2017) b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: iv. Pending a local land use decision; v. Registered by the State of Oregon; or vi. Lawfully established. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. d. Have frontage on and legal direct access from a constructed public, county, or state road; or e. Have access from a private road or easement serving only the subject property. f. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: v. Be on a form provided by the County and shall contain the following information; vi. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; vii. Include a description of the proposed marijuana production or marijuana processing operation; and viii. Include a legal description of the private road or easement. 9. 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; or b. 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. 10. Annual Reporting. 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: iv. Land use decision and permits. v. Fire, health, safety, waste water, and building codes and laws. vi. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. Chapter 18.116 (2/2017) 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). 11.Prohibited Uses. a. In the EFU zone, the following uses are prohibited: v. A new dwelling used in conjunction with a marijuana crop; vi. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; vii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and viii. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. b. In the MUA-10 Zone, the following uses are prohibited: i. Commercial activities in conjunction with farm use when carried on in conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. (Ord. 2016-019 §1, 2016) Chapter 18.116 (2/2017) Good afternoon Jacob, Here is the summary of code enforcement on the property, these are summaries of the case notes, if you have any questions let me know. 1: 08-15-17: Received noise violation complaint regarding fans operating in marijuana greenhouses on this property. Contacted the complainant, who stated that fans running at night were intermittent and daytime fan noise was usually constant. Complainant informed me that she felt that the property had been taken over by another group, as the fan noise had not been heard much lately. Complainant said that the fans were not running today, and that she would contact me again when she heard them. Checked the property on 8-22-17, no fan noise was heard over ambient noise and was able to see several greenhouses on the property. I have never received a call back from the complainant, and left her a message to follow up with me if the fan noise reoccurs. Case was closed after I was not contacted and was not able to establish a violation during site visit. 2: 09-11-17: Received complaint regarding odor and Tight coming from the registered grow site. Conducted site visit during the evening, observed greenhouses were lit to a perceptible level from the property line. Was not able to detect any odor at the property line. Pre -Enforcement notice was sent to the property owner of the marijuana grow. 09-25-17: Property owner contacted me and apologized for the lighting error, and informed me that he had corrected the problem. Contacted the complainant in this case, who informed me that the lights had not been on over the previous week and that the property owner for the marijuana grow had contacted him and was very respectful about this incident. Case was closed with compliance. 3: 10-10-17: Received complaint involving odor from the marijuana grow site, and the potential lack of an odor control system. Left a message with the RP to come out to the property and try to detect the odor myself. Observed that the land use application included an odor control system, but that no permits were pulled to install the system. 10-13-17: Received a call from the complainant informing me that there was no smell today and that he would call me early in the morning if he is able to smell it so I can come out and detect the odor. 11-14-17: Had been in contact with complainant over the previous weeks, no odor had been detected throughout that time. Complainant believed that the operation had shut down for winter and that there would be no additional odors. He advised he would contact me if he was able to smell it again. Case was closed as no violation was substantiated. Hope this helps! Thanks, -Dan Smith Deschutes County Code Enforcement Technician (541) 385-1710 Community Development Department Planning Division euitding Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend. Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd MEMORANDUM To: Jacob Ripper, Associate Planner From: Peter Russell, Senior Transportation Planner Date: December 19, 2017 Re: Response to transportation issues raised in appeal of marijuana production site off of Alfalfa Market Road (File 247-17-000923-A which appeals 17 -612 -AD) The appellant in its November 13, 2017, appeal of a marijuana production (grow) operation at 25606 Alfalfa Market Road raised several transportation issues. The topics ranged from alleged inconsistencies with the Deschutes County Transportation System Plan (TSP) to trip generation rates for marijuana grow operations to the current operation of Alfalfa Market Road. Staff finds all these arguments are without merit. The identified issues are discussed below generally in the order presented by the appellant. 1. Traffic analysis requirements by Deschutes County or state On Page 2, the appellant claims the subject application "...does not meet County and state codes regarding transportation impacts..." and claims "extreme degradation of the transportation system in the Alfalfa Community, where such degradation directly correlates to the increase of pot farms in the area." Board Ordinance 2016-019 established the County's reasonable regulations for marijuana production, processing, and retailing operations at DCC 18.116.330. Deschutes County Code (DCC) at 18.116.330(B)(8) requires a marijuana production site to only prove it has legal access to a constructed public, County, or State road or has access from a private road or easement with written permission to use that private road or easement. Further, DCC 18.116.330(B)(8) only applies to marijuana production facilities of more than 5,000 square feet of mature canopy. The applicant's proposal is for a mature canopy of 5,000 square feet so the requirements of DCC 18.116.330(B)(8) are inapplicable. The traffic study requirements of DCC 18.116.310 are not applicable for this marijuana production as the application did not trigger site plan review and thus does not need to show compliance with DCC 18.124.080(J), which cross references the County's traffic study requirements of DCC 18.116.310. However, for purposes of discussion, staff would point out the subject application would not have met the threshold for the County's traffic studies requirements even if they were applicable. DCC 18.116.310(C)(3)(a) states no traffic analysis is required "if there are fewer than 50 trips per day Quality Services Performed with Pride generated during a weekday." The County, as a matter of Board -approved policy, uses the category Warehousing (Land Use 150) of the Institute of Traffic Engineers (ITE) trip generation manual when assessing marijuana production sites for transportation system development charges (SDCs) or if the site does go through site plan review. Warehousing generates 3.56 weekday trips per 1,000 square feet. The applicant is proposing three new greenhouses of 4,080 square feet each (30' X 136') for a total of 12,240 square feet in cannabis production or support (4,080' X 3). The subject property would generate approximately 44 weekday trips.' Therefore no further traffic analysis would be required as the use is below the threshold of 50 weekday trips. Staff points out the County does not require traffic analysis from any other agricultural operation (alfalfa, vineyards, hops, specialty crops, or other plants grown indoors such as vegetables, flowers, spices, etc.) and thus is treating marijuana production consistent with other crops. Exclusive Farm Use (EFU) zoned properties such as this one are expected to produce agricultural -related trips from outright permitted uses. Finally, staff notes there is no state requirement for traffic analysis in the review of a land use permitted outright or conditionally in an existing zone. The state only requires traffic analysis under Oregon Administrative Rule (OAR) 660-012, aka the Transportation Planning Rule (TPR), for plan amendments and zone changes. Even that mandate is tempered by the criteria of 660- 012-0060 and adverse effects. The Oregon Department of Transportation (ODOT) does have traffic requirements related to their approach road permitting process under OAR 734-051, but Alfalfa Market Road is a County road and not a state highway so those are inapplicable. The application was reviewed consistent with the traffic study section of the County's development code and complies with those requirements. 2. Consistency with TSP Goal 1 On Page 3, the appellant claims the proposed use is inconsistent with TSP Goal 1, which states "...to achieve an efficient, safe, convenient and economically viable transportation system... system."2 The appellant claims the approval will also cause increased traffic along an easement that leads from the subject property to Alfalfa Market Road by crossing her client's property. (The subject property is roughly 1,320 feet north of Alfalfa Market Road.) The appellant errs regarding consistency with TSP Goal 1 for reasons stated below. Goal 1, Policy 1 concerns the protection of the transportation system via various techniques, including land use reviews and collection of SDCs. Policy 1.1(b) and Policy 1.1(c) call for review of large development projects and setting of conditions of approval to protect the transportation system.3 4 These policies work in concert with DCC 18.116.310(C) for the County to determine the base level of generated trips that would require traffic analysis and possibly mitigation. The trip threshold is the basis for what it significant and less than 50 new weekday trips is deemed insignificant. The proposed use would generate 44 new weekday trips. Policy 1.1(d) refers to the ' 3.56 trips X 12.24 = 43.57 weekday trips 2 Goal 1 in full states "Achieve an efficient, safe, convenient and economically viable transportation and communication system. This system includes roads, rail lines, public transit, air, pipeline, pedestrian and bicycle facilities. The Deschutes County transportation system shall be designed to serve the existing and projected needs of the unincorporated communities and rural areas within the County. The system shall provide connections between different modes of transportation to reduce reliance on any one mode." 3 Policy 1.1(b) "Review of future large development and transportation projects that significantly affect the County's transportation system." 4 Policy 1.1(c) "Requirements of conditions of approval on developments and transportation projects that have a significant effect on the County's transportation system." 2 collection of SDCs to protect the system.5 The subject application was assessed $15,478 in SDCs based on an SDC rate of $3,937 per p.m. peak hour and the site's 4 p.m. peak hour trips.6 Regarding the easement, staff points out that there is a private easement between private parties, but its terms are not a land use approval criterion. The Clerk's Office does indicate a private easement dated Aug. 3, 1983, and recorded as Document 83-13378 between the subject property's previous owner (Norman Perkins) and the appellant's property's previous owner (Bernice Teeter). The easement is for "roadway purposes" and does not appear to have any restrictive terms other than width; the easement is silent on amount of vehicle usage. Whether there is a limit to the number of vehicles that can use the easement is a matter between private parties, not the County's land use system. The application is consistent with and complies with TSP Goal 1 and its supporting review criteria of DCC 18.116.310. 3. Consistency with TSP Goal 4 On Page 4 the appellant claims the existing transportation network is insufficient and congested with the proposed use exacerbating Alfalfa Market Road. More specifically, the appellant claims TSP Goal 4 is not met as it requires developments to provide transportation improvements commensurate with the development's impacts.' Staff notes when the TSP modeled the County's road system for 2030 volumes, Alfalfa Market Road was not found to be over capacity or nearing capacity. The lone exception was the intersection of Alfalfa Market -Neff roads/Powell Butte Highway. The County, however, constructed a rural roundabout there, which opened July 29, 2016, thus mitigating that intersection. The improved intersection now meets County standards. The County's performance standard for a roadway segment is Level of Service (LOS) D, which equates to up to 9,600 average daily traffic (ADT). Appellant claims Alfalfa Market Road is experiencing extreme congestion and residents are at significant hazard. Appellant provides no factual data to support this claim. Staff notes the most recent count of average daily traffic (ADT) for Alfalfa Market Road is 2,948 (ADT) in 2015 or roughly 31 percent capacity.$ Staff often drives this road for site visits and has not witnessed any congestion. The appellant cites the lack of bike lanes, sidewalks, or shoulders. The TSP classifies Alfalfa Market Road as a Rural Arterial. The road is built to County standards for its classification. The County does not require sidewalks on a Rural Arterial nor bike lanes. Instead, the County uses shared shoulder bikeways, meaning cyclists ride on the paved shoulder, which under DCC 17.48.050 and Table A can be 3 to 5 feet in width. Typically, Rural Arterials have higher running speeds due to basic rule and serve larger scale properties. They do not have sidewalks, marked crosswalks, or bike lanes. Those features are found when Rural Arterials transition into either cities or urban unincorporated communities. 5 Policy 1.1(d) "Collection of transportation System Development Charges (SDCs) for approved land uses as prescribed under BOCC Resolution 2008-059." 6 Warehousing generates 0.32 p.m. peak hour trips per 1,000 square feet. (0.32 X 12.24) = 3.9 p.m. peak hour trips 7 Goal 4 "Establish a transportation system supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism." 8 2,948/9,600 X 100 3 The appellant has not provided any factual information from a licensed engineer that demonstrates Alfalfa Market Road is severely congested. Land uses doadd traffic hnthe svn�enl. however, that increase iaaUovvabkyunless the deve|opnnentwiUexceed the applicable mobility standard. An addition of 4 (four) p.m. peak hour trips will not cause the intersection of the private easement/Alfalfa Market Road to exceed LOS D for an intersection or a roadway segment. Nor will 44 additional weekday trips nor 4 p.m. peak hour trips cause this segment of Alfalfa Market Road to exceed the County's performance standard. Theeppa||onto|ainmoGoe|4hmonmtbaenmetdueto(eokoftnafOcana|yoiore|ahadUmrnmrmarijuana. Appellant provides no factual data from a transportation profaoaiona|1hotnoadvvaymeg' segments serving marijuana production sites or driveways accessing marijuana sites have any crash history indicative of a systematic problem. Appellant misunderstands the intent of broad policy goals vs. site-specific operational analysis. One could argue marijuana production as a newly legalized crop is consistent with the goal of a diversified economic base. Finaily, appellant makes much of the allegeadverse traffic effects upon the Alfalfa community. Alfalfa is a desinotedRuna|SenviooCenter/RSC\.atypenfuninoorponataduonlnnunitv.but�� |��n��A��m��nm��b�property.T—�� that d/recUoniesignificanttraffic inundexUlatheory nfrateUgnavdaUo/and modeling, the vast majority of traffic to the site can be expected to come from the largest population center. That would describe Bend, which is west of the site. In other vvonjm, the overwhelming majority of *mnp|oymmoand delivery vehicles vvi||not even reach Alfalfa mathey vvi||bagoing toand from Bend, a city of more than 90.000 rather than the settlement of Alfalfa, which has less than 500 people in the outlying area while the core of the RSC on Alfalfa Market Road has but a handful of houses and one convenience store. The application complies with and is consistent with TSP Goal 4. 4. Consistency with TSP Policy 4.6 Also on Page 4 the appellant claims the application is inconsistent with Policy4.6 as the County requires a development to "require improvements will match level and impact of development".9 The County bases development mitigations on traffic ena|ysio, which in turn is based on p.m. peak hour trips. Based mnthe calculations for SOCo.the proposed use would generate 40ouh p.mn.peak hour thpm. (four) As described above, the site would produce roughly 44 daily trips and 4 would be in the p.m. peak hour. Given the 2,948 ADT on Alfalfa Market Road in 2015, the road would not meet the warrants for any improvements such as left turn lanes or right turn lanes into the property. There simply is not enough traffic on Alfalfa Market Road to require separating turning vehicles from through traffic. In other words, the traffic effects of this land use are minimal. Appellant does not provide any factual data from a transportation professional demonstrating otherwise. The SDCs wiPJ mitigate the deve!opment's impact. The application is consistent with and complies with TSP Policy 4.6. Policy 4.6: "Deschutcs County shali manage the development process to obtain adequate streeright-of-way improvements commensurate with the level and impact ofdevelopment. New development shall provide traffic impact analysis to assess these impacts and to help determine transportation system needs. The guidelines for traffic impact analysis shall be located within Deschutes County Code ("DCC") Chapter 17.48, Deschutes County Road Design and Specification Staiidards." 4 5. Consistency with TSP Goal 10 Appellant on Page 5 claims the lack of traffic analysis is inconsistent with Goal 10 to "maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system." Again, appellant misunderstands that degradation does not mean an absolute prohibition of any new trips onto the system. Land uses are allowed to generate new trips until they cause the affected roadway segment or intersection to not meet the applicable performance standard, which fora County facility is LOS D. See DCC 18.116.310(H)(1) and (I)(1). The application is consistent with and complies with TSP Goal 10. 6. Miscellaneous transportation issues Throughout the Nov. 13, 2017, memo the appellant ascribes increased traffic to marijuana operations. Yet, these are just assertions, the appellant has not provided any factual data from a professional traffic engineer or other transportation professional. The increased traffic on Alfalfa Market Road could be related to additional residential development in Deschutes and Crook counties, commuting traffic from Prineville and western Crook County as the route of Johnson Ranch Road to Alfalfa Market Road is a popular route to/from Bend (Johnson Ranch Road is a north -south collector about a mile east of the grow site and 1,278 feet west of Alfalfa Rural Service Center). Other sources of traffic on Alfalfa Market Road are visitors and workers to the various equine training facilities in the area or traffic to/from the Brasada Ranch, which is a destination resort in western Crook County accessed via Johnson Ranch Road. Finally, Alfalfa Market Road is the direct access to recreational areas on Bureau of Land Management (BLM) property as well as Prineville Reservoir. In other words, there are numerous other factors affecting traffic Toads on Alfalfa Market Road. In the most recent traffic counts, the road in 2012 had 2,581 ADT and 2,948 ADT in 2015, an increase of 367 ADT. Yet, the County did not legalize marijuana operations until 2016. Thus, traffic increase predated the legalization of marijuana growing, processing, or retail operations. Lastly, the appellant on several pages references the lack of any traffic analysis being performed when Deschutes County adopted its marijuana regulations via Ord. 2016-015, which amended Title 18. Appellant claims this violates Oregon Revised Statute (ORS) 475B.340. Staff rejects that argument for two reasons. First, Board Ordinance 2016-019 established the County's reasonable regulations. That ordinance was not appealed. The time to raise the argument of whether the Board's ordinance was inconsistent with ORS 475B.340 has passed. Appellant is making an unpermitted collateral attack on the County's adopted ordinance. Second, the permitted uses added to DCC 18.116.330 are defined by the state as agricultural uses. The County is not required to predict or analyze the trip generation aspect unique to any one particular crop. Again, the appellant has not entered any factual evidence into the record by a transportation engineer or transportation professional regarding the traffic characteristics specific to marijuana production, processing, and retailing and how they differ from other crops. Conclusion Staff finds no credible transportation arguments in the appellant's submitted nor is there any factual evidence demonstrating this application would adversely affect Alfalfa Market Road. 5 Cameron Yee S20 Dynamics 25606 Alfalfa Market Road Bend, OR 97701 September 13, 2017 RE: S20 Dynamics cannabis odor and noise per Deschutes County Code DCC 18.116.330 Cameron, With respect to odor control methods and sound pressure levels at your cannabis growing facility at 25606 Alfalfa Market Road, Bend, OR 97701, located within Deschutes County: Cannabis Odor The Deschutes County code DCC 18.116.330(B)(10) reads: Odor. As used in DCC 18.116.330(6)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. We have verified that you have installed louvers and prop fans to be used for natural ventilation/cooling inside the building. You have indicated that you plan to designate an area of your property for composting. The composting area must be enclosed and provided with prop fans for pass-thru ventilation. If additional growing buildings are to be added at a future date they must have the same natural ventilation system as the existing building to comply with this letter. The exhaust air must be treated for odor control. You have indicated that you intend to utilize fogger technology for odor control at your growing facility. A ring -type fogger, (BioWorld Products, Fogco, or similar) shall be adequate to eliminate odor from the exhaust airstream from the growing building, compost building, and any future growing buildings. We have observed this COLE 1 ENGINEERING unit in operation at a similar facility. The fogger injects an odor neutralizer directly into the exhaust airstream. With the fogger turned off, we could smell the growing plants in the exhaust airstream. With the fogger turned on, we could no longer smell the plants. The unit is CE listed. The fogger shall be wired into the exhaust fan control system such that whenever the exhaust fans are energized, the fogger will also be turned on. Each exhaust fan must be supplied by a fogger. Providing odor control products via a fogger in the exhaust airstream, as described above, will satisfy the requirements of DCC 18.116.330(B)(10)(d)(ii), and prevent unreasonable interference of neighbors' use and enjoyment of their property. Noise The Deschutes County code DCC 18.116.330(B)(11)(a) reads: 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. The cooling equipment at the facility will run intermittently when there is a call for cooling. Therefore, the noise will not be sustained as we understand the intent of the code. Wall hung space heaters have been installed in the interior of the building. The walls of the building provide adequate noise mitigation to the exterior of the building. (2) J&D Manufacturing 50" Typhoon type exhaust fans have been installed on the East facing wall of each of the two growing structures for cooling purposes. The nearest East property line is approximately 500' away from the facility. The nearest West property line is approximately 450' away but the building will mitigate noise in that direction. The nearest South property line is over 700' away and the property has no neighbor to the North. Ambient sound pressure levels, with no equipment running, at the nearest East property line was measured at 7:00 a.m. at 42 dBA. With the fans running the sound pressure measurement at the same location was 42.6 dBA. The difference of 0.6 dBA is Tess than 3 dBA which (according to the US Department of Transportation) studies have shown is barely perceptible to the human ear. No sound pressure level readings on the property were measured below 30 dBA regardless of mechanical equipment operation. As no equipment runs continuously, additional growing buildings constructed in the same manner as the existing structure will comply with the code regarding noise mitigation. It is our opinion that since the mechanical equipment exterior to the building will operate intermittently upon call for cooling and since a difference of 0.6 dBA is not perceptible to the human ear, the property will comply with DCC 18.116.330(B)(11)(a). Best Regards, Rob James, P.E. ColeBreit Engineering COLE ENGINEERING ( EXPIRES 6/30/19 ) 10/6/17 Cameron Yee S2O Dynamics 25606 Alfalfa Market Rd Bend, OR 97701 RE: Will Serve Letter In response to your inquiry, please be advised that S2O Dynamics located at 25606 Alfalfa Market Rd is allowed to purchase water for commercial use from Alfalfa Water, LLC. Alfalfa Water is willing and able to provide this water for use with recreational cannabis. Best Regards. Loraine Green Alfalfa Water, LLC 26161 Willard Rd Bend, OR 97701 541-815-0964 June 1, 2017 David House CO.Cameron Yee 25606 Alfalfa Markct Rd Bend, OR 97701 RE: Will Serve Letter for 25606 Alfalfa Market Rd/Greenhouse In response to your inquiry, please be advised that the property located at T.17S., R.14E., W.M., Section 22, Tax Lot 1400 in Deschutes County, Oregon, is within the service area of Central Electric Cooperative, inc. Central Electric Cooperative has reviewed the provided load information (200 amp Single phase service) associated with the submitted Cannabis Grow Facility and is willing; and able to serve this location in accordance with the rates and policies and of Central Electric Cooperative. Sincerely, RRoberi F Fowler Lngineering Service Representative AXES MAPPING AND SUR PEY/NC COMPANY 70 SA CENTURY DRIVE, #375, BEND, OR 97702 SURVEYSOAXISAVAPPINC. COAI 541.728.8474 TOPOGRAPHIC SURVEY FOR DAVID HOUSE 25606 ALFALFA MARKET RD, BEND, 01? 97701 N,,/-6171/4 122, T17S 1148, ES PT 71/4 fes, 117/I, S.I1/2, S22, T17S, R11P DESCHUTES COUNTY, OREGON REGISTERED PROFESSIONAL LAND SURVEYOR] ".°orris`" v° f \\\ e 7 cE JJ /KW 12131110 8 DATE. 05/17/17 I' CONTOUR INTERVAL SHEET 10F1 BEFORE THE WATER RESOURCES DEPARTMENT OF THE STATE OF OREGON In the Matter of Transfer Application T-12263, Deschutes County FINAL ORDER APPROVING A CHANGE IN POINT OF APPROPRIATION, A CHANGE IN PLACE OF USE, AND A CHANGE IN CHARACTER OF USE Authority Oregon Revised Statutes (ORS) 537.705 and 540.505 to 540.580 establish the process in which a water right holder may submit a request to transfer the point of appropriation, place of use, or character of use authorized under an existing water right. Oregon Administrative Rules (OAR) Chapter 690, Division 380 implement the statutes and provides the Department's procedures and criteria for evaluating transfer applications. Applicant DAVID HOUSE 13 LINCOLN LAUREL ROAD BLAIRSTOWN, NJ 07825 Findings of Fact 1. On February 1, 2016, S20 DYNAMICS filed an application to change the point of appropriation and to change the place of use and to change the character of use under Certificate 90952. The Department assigned the application number T-12263. 2. Notice of the application for transfer was published on February 9, 2016, pursuant to OAR 690-380-4000. No comments were filed in response to the notice. 3. On August 31, 2016, the Department approved an assignment of Transfer Application T-12263 to David House. 4. On December 22, 2016, the Department contacted the applicant's agent to notify them of deficiencies in the application and map. On January 27, 2017, the applicant's agent submitted new maps and amended application pages resolving the deficiencies. 5. On December 8, 2015, Transfer Application T-12214 was filed, on December 10, 2015, Transfer Application T-12215 was filed, on January 11, 2016, Transfer Application T-12241 was filed, on February 1, 2016, Transfer Applications T-12264 and T-12265 were filed. These transfers all modify the same right, described by Certificate 90952, that has been This final order is subject to judicial review by the Court of Appeals under ORS 183.482. Any petition for judicial review must be filed within the 60 -day time period specified by ORS 183.482(1). Pursuant to ORS 536.075 and OAR 137-003-0675, you may petition for judicial review or petition the Director for reconsideration of this order. A petition for reconsideration may be granted or denied by the Director, and if no action is taken within 60 days following the date the petition was filed, the petition shall be deemed denied. T-12263 . fo.approve.sah Page 1 of 5 Special Order Volume 107 Page 9,13 proposed to be modified in T-12263. Certificate 90952 shall be canceled after all transfer applications are processed. 6. On June 16, 2017, the Department mailed a copy of the draft Preliminary Determination proposing to approve Transfer Application T-12263 to the applicant. The draft Preliminary Determination cover letter set forth a deadline of July 16, 2017, for the applicant to respond. 7. On July 21, 2017, the Department received a request to extend the completion date to five years, the completion date will now be October 1, 2023. 8. On September 5, 2017, the applicant's agent provided the necessary information to demonstrate that the applicant is authorized to pursue the transfer. The applicant requested that the Department proceed with issuance of a Preliminary Determination. 9. On October 11, 2017, the Department issued a Preliminary Determination proposing to approve Transfer T-12263 and mailed a copy to the applicant. Additionally, notice of the Preliminary Determination for the transfer application was published on the Department's weekly notice on October 17, 2017, and in the Bend Bulletin newspaper on October 14, and 21, 2017, pursuant to ORS 540.520 and OAR 690-380-4020. No protests were filed in response to the notices. 10. The portion of the right to be transferred is as follows: Certificate: 90952 in the name of NIKKIA SUMMER RAIN MALLOY (perfected under Permit G-11126) Use: IRRIGATION OF 1.9 ACRE Priority Dates:OCTOBER 12, 1990 FOR IRRIGATION USE Rate: 0.04 CUBIC FOOT PER SECOND (CFS) FOR IRRIGATION Source: ONE WELL, within the DESCHUTES RIVER BASIN Authorized Point of Appropriation: Twp Rng 17 S 13 E Mer Sec WM Authorized Place of Use: Twp 17 S 17 S 17 S 16 Q -Q 1 SE NE Measured Distances 640 FEET NORTH AND 1400 FEET EAST FROM THE C1/4 CORNER OF SECTION 16 IRRIGATION Rng Mer Sec Q -Q Acres 13E WM 16 NE NE 0.5 13E WM 16 SW NE 0.1 13 E WM 16 SE NE 1.3 11. Certificate 90952 does not specify the irrigation season, nor is an irrigation season specified by basin program or decree. Consistent with OAR 690-250, the irrigation season is March 1 through October 31. T- 12263.pd.approve.sah Page 2 of 5 Special Order Volume 107 Page X‘‘)% 12. Transfer Application T-12263 proposes to move the authorized point of appropriation approximately 10 miles from the existing point of appropriation to: Twp Rng Mer Sec Q -Q I Measured Distances 17 S 14 E WM 22 NW SW f 680 FEET SOUTH AND 700 FEET EAST FROM l I THE W1/4 CORNER OF SECTION 22 13. Transfer Application T-12263 proposes to change the character of use to nursery use. 14. Transfer Application T-12263 also proposes to change the place of use of the right to: NURSERY USE Twp 1 Rng Mer Sec Q -Q 1 Acres 1 17S I 14 E WM 1 22 NW SW ( 1.9 15. The amount of water used for NURSERY OPERATIONS is limited to a diversion of 0.15 cubic foot per second per acre and 5.0 acre feet per acre per year. For the irrigation of containerized nursery plants, the amount of water diverted is limited to ONE -FORTIETH of one cubic foot per second (or its equivalent) and 5.0 acre feet per acre per year. For the irrigation of in -ground nursery plants, the amount of water diverted is limited to ONE - EIGHTIETH of one cubic foot per second (or its equivalent) and 2.5 acre feet per acre per year. The use of water for NURSERY OPERATIONS may be made at any time of the year that the use is beneficial. For the irrigation of any other crop, the amount of water diverted is limited to ONE -EIGHTIETH of one cubic foot per second (or its equivalent) and 2.5 acre feet per acre during the irrigation season of each year. 16. Using the nursery rate and duty described in Finding of Fact No. 15 above, the rate of diversion, place of use, and quantity of water for the proposed nursery use under the portion of the right for irrigation use shall be limited to a maximum rate of diversion of 0.04 cubic foot per second (cfs) during the irrigation season of each year, a place of use of 0.266 acre in area (0.04 cfs -4- 0.15 cfs/acre = 0.266 acre), and a total volume diverted of not to exceed 1.33 acre foot (0.266 acre x 5.0 acre feet = 1.33 acre foot) during the irrigation season of March 1 through October 31, further limited to: Containerized nursery plants - A maximum rate of diversion of 0.04 cfs, a place of use of 1.6 acre (0.04 cfs ± 0.025 cfs/acre), and a maximum total volume diverted of 8.0 acre feet (1.6 acre x 5.0 acre feet per acre) during the irrigation season of March 1 through October 31, or In -ground nursery plants- A maximum rate of diversion of 0.04 cfs, a place of use of 3.2 acres (0.04 cfs ÷ 0.0125 cfs/acre), and a maximum total volume diverted of 8.0 acre feet (3.2 acre x 2.5 acre feet per acre) during the irrigation season of March 1 through October 31. Transfer Review Criteria (OAR 690-380-4010) 17. Water has been used within the last five years according to the terms and conditions of the right. There is no information in the record that would demonstrate that the right is subject to forfeiture under ORS 540.610. T-12263.pd.approve.sah Page 3 of 5 Special Order Volume 107 Page 2.1S 18. A pump, pipeline, and sprinkler system sufficient to use the full amount of water allowed under the existing right were present within the five-year period prior to submittal of Transfer Application T-12263. 19. The proposed changes, as conditioned, would not result in enlargement of the right. 20. The proposed changes would not result in injury to other water rights. 21. All other application requirements are met. Conclusions of Law The change in point of appropriation, change in place of usc, and change in character of use proposed in Transfer Application T-12263 are consistent with the requirements of ORS 537.705 and 540.505 to 540.580 and OAR 690-380-5000. Now, therefore, it is ORDERED: 1. The change in point of appropriation, change in place of use, and change in character of use proposed in Transfer Application T-12263 are approved. 2. The right to the use of the water is restricted to beneficial use at the place of use described, and is subject to all other conditions and limitations contained in Certificate 90952 and any related decree. 3. Water right Certificate 90952 is cancelled. A new certificate will be issued describing that portion of the right not affected by this transfer and transfers T-12214, T-12215, T-12241, T-12264 and T-12265. 4. The quantity of water and place of use allowed for the proposed nursery use under the portion of the right for irrigation use shall not exceed a rate of diversion of 0.04 cubic foot per second (cfs), a place of use of 0.266 acre in area, and a total volume diverted of not to exceed 1.33 acre foot during the irrigation season of March 1 through October 31. Containerized nursery plant use shall be limited to a rate of diversion of 0.04 cfs and a place of use of 1.6 acre in area, further limited to a total volume of water diverted of 8.0 acre feet during the irrigation season of March I to October 31. In -ground nursery plant use shall be limited to a rate of diversion of 0.04 cfs and a place of use of 3.2 acres in area, further limited to a total volume of water diverted of 8.0 acre feet during the irrigation season of March 1 through October 31. 5. The quantity of water diverted at the new point of appropriation shall not exceed the quantity of water lawfully available at the original point of appropriation. 6. Water shall be acquired from the same aquifer (water source) as the original point of appropriation. 7. The fouuer place of use of the transferred right shall no longer receive water under the right. 8. Water use measurement conditions: T- 12263.pd.approve.sah Page 4 of 5 Special Order Volume 107 Page -,\10 a. Before water use may begin under this order, the water user shall install a totalizing flow meter, or, with prior approval of the Director, another suitable measuring device at each new point of appropriation. b. The water user shall maintain the meter or measuring device in good working order. c. The water user shall allow the Watermaster access to the meter or measuring device; provided however, where the meter or measuring device is located within a private structure, the Watermaster shall request access upon reasonable notice. 9. Full beneficial use of the water shall be made, consistent with the terms of this order, on or before October 1, 2023. A Claim of Beneficial Use prepared by a Certified Water Right Examiner shall be submitted by the applicant to the Department within one year after the deadline for completion of the changes and full beneficial use of the water. 10. After satisfactory proof of beneficial use is received, a new certificate confirming the right transferred will be issued. Dated at Salem, Oregon this 2-( day of November, 2017. Thomas Oregon Mailing date: ight Services Administrator, for er, Director Resources Department NOV 292017 T- 12263.pd.approve.sah Page 5 of 5 Special Order Volume 107 Page ').-\-4