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2018-86-Minutes for Meeting February 05,2018 Recorded 3/9/2018Recorded in Deschutes County CJ2018-88 03/09/2018 4:35:53 PM Nancy Blankenship, County Clerk Commissioners' Journal 1111111111111111111111111° 111 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Monday, February 5, 2018 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Assistant. Several citizens and representatives of the media were in attendance. CALL TO ORDER: Chair DeBone called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: Commissioner Baney shared that her two brothers are in the emergency response field and spoke on the response to the Happy Valley Fire in Clackamas County and the importance of the 7 - minute response. Minutes of Board of Commissioners' Business Meeting February 5, 2018 Page 1 of 6 CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner Henderson requested to pull Consent Agenda Items 1 and 2 for discussion. BANEY: Move approval of Consent Agenda 3 through 6. HENDERSON: Second. VOTE: BANEY: Yes. HENDERSON: Yes. DEBONE: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Signature of Order No. 2018-005, Vacating Portions of E Ave., F Ave., G Ave., H Ave., and 19th Street in Terrebonne, OR 2. Consideration of Signature of Resolution No. 2018-003, Initiating the Vacation of Portions of E Ave., F Ave., G Ave., H Ave., and 19th Street in Terrebonne, OR. 3. Consideration of Signature of Resolution No. 2018-004, Budget Adjustment — Foreclosure Fund #140 4. Consideration of Signatures on Letters Thanking Michael Fisher, Tom Fay, Matt Martin, and Deana Wall for their service on the Project Wildfire Steering Committee 5. Consideration of Signatures on Letters Appointing Zechariah Heck, Paula Simone, Alex Robertson, and Craig Letz to the Project Wildfire Steering Committee 6. Consideration of Signatures on Letter ReAppointing George Chesley, Dan Dougherty, Nathan Garibay, Dave Gibson, Gary Githens, Doug Green, Gary Marshall, David Morman, Erica Pelley, Steve Reinke, Dean Richardson, Nicole Strong, and Dan Galecki to the Project Wildfire Steering Committee ACTION ITEMS Consent Agenda Item 1 and 2 as pulled for discussion: • Consideration of Signature of Order No. 2018-005, Vacating Portions of E Ave., F Ave., G Ave., H Ave., and 19th Street in Terrebonne, OR • Consideration of Signature of Resolution No. 2018-003, Initiating the Vacation of Portions of E Ave., F Ave., G Ave., H Ave., and 19th Street in Terrebonne, OR. Cody Smith, County Engineer gave brief overview of the vacation process for property and easements. The process begins with the receipt of a petition. A vacation petition must be signed by 60% of the abutting property owners. If 100% of the property owners Minutes of Board of Commissioners' Business Meeting February 5, 2018 Page 2 of 6 submit the petition, a vacation may be considered without a public hearing as was done with this particular request. The resolution would be recommended for adoption prior to the Order. BANEY: Move approval of Consent Agenda Item 1, Order No. 2018-005 and Consent Agenda Item 2, Resolution No. 2018-003 HENDERSON: Second. VOTE: BANEY: Yes. HENDERSON: Yes. DEBONE: Chair votes yes. Motion Carried 7. PUBLIC HEARING: Relative to Deschutes County Code 8.30 Ambulance Service Area and Consideration of Adoption of Ordinance No. 2018-004 County Counsel Dave Doyle reviewed the public hearing process. Tom Kuhn Community Health Manager and Doug Kelley Redmond Fire and Rescue presented the item for consideration for an amendment to County Code to change the term length of the franchises from 5 years to 10 years. Larry Langston, Bend Fire Chief commented on the importance of EMS for saving lives and explains his support of this amendment and the evolving success for the best care to the community. Tim Moore, Redmond Fire Chief thanked everyone that worked on this effort and noted his support. Chief Moore spoke on equipment required to provide uninterrupted services to the fire district and how this is a positive move for the security of a 10 -year term length. Roger Johnson, Sisters Camp Sherman Fire spoke on the rural services provided and reviewed the coverage service. The costs of ambulance is expensive and the longer franchise term would allow the continuance of rapid access. Patrick Hannon, Cascade Medical Transports of Oregon agrees with the ten-year term and supports the amendment. Upon no further testimony, Commissioner DeBone closed the public hearing. Commissioner Baney spoke on the ten-year agreement and of the support of those in the community. Commissioner Henderson agrees on the success of the services to the community but is hesitant of expanding the term from five to ten years but is in support. Commissioner DeBone feels the ten-year time -frame is appropriate and commented on the great partnerships and service. Minutes of Board of Commissioners' Business Meeting February 5, 2018 Page 3 of 6 BANEY: Move adoption HENDERSON: Second VOTE: BANEY: Yes. HENDERSON: Yes. DEBONE: Chair votes yes. Motion Carried 8. DELIBERATIONS: Marijuana Production Appeal, 20420 Harper Road, Bend Cynthia Smidt, Community Development Depai linent presented the deliberations for this marijuana production appeal and noted the 150 -day time clock ends on February 20th. Ms. Smidt reviewed the staff memo and key topics of the appeal. Commissioner DeBone commented on the setback exception. Commissioner Henderson requested to review by the process of subject. Ms. Smidt started with compatibility with surrounding properties and site suitability. Commissioner Baney commented the setback factors here as well and noted the challenge is adding another use on this property to include marijuana production when minors present on the property using the other business opportunity provided on the property. Commissioner DeBone noted concern with the setback exception. Commissioner Henderson is uncertain on the use of the property. Commissioner DeBone commented on the application noting this is a small nature of the production and of the requirements to meet the noise and odor regulations. Commissioner Henderson commented on the standards he holds for all applications that they provide a letter that demonstrates they are able to meet those regulations. Commissioner Henderson expects to see a report demonstrating these controls to include a formal statement. Commissioner Henderson noted the applicant uses the word "opinion" regarding the engineers statement. Commissioner Henderson wants factual demonstration. Commissioner Henderson reiterated the conversations with OLCC on marijuana regulations and that Deschutes County is the body that needs to control odor regulations. Commissioner Baney stated the application still lacks the specificity the Board is looking for. One issue we have unregulated grow operations that do not follow within the law and wonders how many of the medical grow operations may be out of compliance. Ms. Smidt explained staff relies on the engineer's statements and asked for the Board to articulate with specificity the requirements to be imposed on applicants. Commissioner Minutes of Board of Commissioners' Business Meeting February 5, 2018 Page 4 of 6 Henderson suggested a review with the building department to create a template that proves demonstration of the systems to regulate odor and noise. Commissioner Baney would like to see specific statements not general statements. Ms. Smidt reviewed the request is for more specifics and references to where was the study done and proof provided. Commissioner Baney spoke on technologies and research. Commissioner Henderson would like to see the proof that the systems do work and not just an opinion it works. Commissioner DeBone recalled the intentions were that the requirements were to provide the best technologies possible. Commissioner Henderson inquired on the neighbors and how we are going to protect them. Commissioner Henderson clarified he is not saying anything negative but he is responding to the complaints he is hearing from people that the odor is so great and wonders why the growers don't feel they need to be a good neighbor. Ms. Smidt reviewed the prohibited uses criteria. The marijuana production would be in an existing structure. Commissioner DeBone commented on the types of activities proposed on the property. Commissioner Baney had not anticipated the activities at the same time on the same property as a marijuana production but would rather not use this application to make a determination. Commissioner Henderson does not see the activities on this property would be a basis of denying the application. Commissioner Henderson hopes that children would be separated from any marijuana grows. Ms. Smidt reviewed the setback exception and the allowances in the Code for existing structures. The applicant has requested a 100 foot exception to the setback. Commissioner DeBone doesn't see a driver for this exception and has never intended on supporting a setback in small parcel setting. Commissioner Baney agrees the purpose of the setback is not met in this situation and are not compelling enough. Commissioner Henderson is also hesitant with setback exceptions. Ms. Smidt spoke on the concerns of traffic and transportation access. Peter Russell, Senior Transportation Planner has provided a statement of the traffic impacts and proof of adequate fire department access around the structure. Commissioner Baney does not recall other applications where the fire department has required access improvements. Ms. Smidt noted prior applications have had general comments but were not an issue. Commissioner Baney suggested this type of access be taken into consideration when reviewing our regulations. Ms. Smidt reported on the groundwater rights. The applicant intents to apply to convert one acre of existing water rights from irrigation to nursery rights. Commissioner Henderson reported he learned some irrigators may have less rights for marijuana grows than they thought which may pose an issue going forward. Commissioner DeBone commented on the response received from John Short and there was no context in relation to this appeal process but was relative to the water resources discussion on marijuana regulations. Minutes of Board of Commissioners' Business Meeting February 5, 2018 Page 5 of 6 Commissioner Baney looks to Legal Counsel for specificity. Discussion held on site suitability. Commissioner Baney does not see the clarity on the separation of youth and this particular crop and the application does not show where that activity is and is not occurring on this property. Assistant Counsel Adam Smith stated if all three commissioners are opposed to the setback exception then the application would be denied. Mr. Smith explained the Board could vote now or this could be brought back. BANEY: As the application is presented, the approval is denied. HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried, Application Denied. The Board discussed the need for a future work session discussion on compatibility. OTHER ITEMS: None were offered. ADJOURN Being no further items to come before the Board, the meeting was adjourned at 11:54 a.m. DATED this Day of Vf County Board of Commissioners. ATTEST: Recoding Secretary Minutes of Board of Commissioners' Business Meeting 2018 for the Deschutes J Anthony DeBone, Chair Philip G. enderson, Vice Chair Tammy Baney, Coria issioner February 5, 2018 Page 6 of 6 -V• E Lu 0 -< Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, FEBRUARY 5, 2018 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. CONSENT AGENDA . Consideration of Signature of Order No. 2018-005, Vacating Portions of E Ave., F Ave., G Ave., H Ave., and 19Th Street in Terrebonne, OR 2. Consideration of Signature of Resolution No. 2018-003, Initiating the Vacation of Portions of E Ave., F Ave., G Ave., H Ave., and 19Th Street in Terrebonne, OR 3. Consideration of Signature of Resolution No. 2018-004, Budget Adjustment - Forclosure Fund #140 Board of Commissioners Business Meeting Agenda Monday, February 5, 2018 Page 1 of 3 4. Consideration of Signatures on Letters Thanking Michael Fisher, Tom Fay, Matt Martin, and Deana Wall for their service on th Project Wildfire Steering Committee 5. Consideration of Signatures on Letters Appointing Zechariah Heck, Paula Simone, Alex Robertson, and Craig Letz to the Project Wildfire Steering Committee 6. Consideration of Signature on Letters ReAppointing George Chesley, Dan Dougherty, Nathan Garibay, Dave Gibson, Gary Githens, Doug Green, Gary Marshall, David Morman, Erica PeIley, Steve Reinke, Dean Richardson, Nicole Strong, and Dan Galecki to the Project Wildfire Steering Committee ACTION ITEMS 7. PUBLIC HEARING: Relative to Deschutes County Code 8.30 Ambulance Service Area and Consideration of Adoption of Ordinance No. 2018-004 - David Doyle, Legal Counsel 8. DELIBERATIONS: Marijuana Production Appeal, 20420 Harper Road, Bend - Cynthia Smidt, Associate Planner OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.ord/meetinds Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Board of Commissioners Business Meeting Agenda Monday, February 5, 2018 Page 2 of 3 nuDeschutes 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. 1.9y FUTURE MEETINGS: Additional meeting dates available at mvw.deschutes.ora/meetinacalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Business Meeting Agenda Monday, February 5, 2018 Page 3 of 3 Subject: BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony: Please complete and submit to Recording Secretary. c -1;-4 Name h. C Address 39/ filbu N<k _1. " 6k, 41( :15- 62 Phone #s E-mail address In Favor Neutral/Undecided Date: 2 IC liK(' Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No Subject: Name Address Phone #s BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony: Please complete and submit to Recording Secretary. E-mail address In Favor Neutral/Undecided Date: 2 Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No -(ES ❑ �� P'a c Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of February 5, 2018 DATE: FROM: Cynthia Smidt, Community Development, 541-317-3150 TITLE OF AGENDA ITEM: DELIBERATIONS: Marijuana Production Appeal, 20420 Harper Road, Bend BACKGROUND AND POLICY IMPLICATIONS: Deliberations on the appeal of a marijuana production facility at 20420 Harper Road. A public hearing was held on December 27, 2017. The Board established an open record period of 21 days. The record closed on January 17, 2018. The Board is tasked with determining if the proposal complies with the applicable sections of DCC 18.116 and 18.128. See attached staff memo for additional information. FISCAL IMPLICATIONS: None ATTENDANCE: Cynthia Smidt, Associate Planner Community Development Department Planning Division ewmng Safety Division Environmental Soils Division P/}.Box 6005 1`7NWLafayette Avenue Bend, Oregon g77O8'0O0j Phone: (541) 388'6575 Fax: (541) 385'1764 kttp:/vwwdeschu¢es.urg/cd STAFF MEMORANDUM TO: Board af County Commissioners FROM: Cynthia Smidt, Associate Planner DATE: January 19, 2018 RE: Deliberation / Marijuana Production Appeal / File Nos. 247-17-OOO9O2-A(247-17000645-CU) - � BACKGROUND The applicant, ChriBaker, requested approval to establish a marijuanap/nducUonfan|hv at 20420 Harper Road, Bend. The property is located within the Multiple Use Agricultural (M . 1O) Zone. Staff issued an administrative approval on November 22, 2017, which was subsequently appealed on December 4. The Board of County Commissioners (Board) conducted one public hearing on December 27.1 The Board established an open record period of 21 days, 14 for additional written testimony and 7 for applicant's final legal argument (see attachments). The Board is tasked with determining if the proposal for a marijuana production facility complies with the applicable sections of Deschutes County Code (DCC) 18.32, 18.116, and 1..128.GtQff has provided two tables, one recapping oral and written testimony and the other assisting the Board in evauating the record, The 1501h day on which the Board must take final action on this application is February 18, 2018.2 II. TESTIMONY SUMMARY Table 1 provides a summary of the issuea, conoernn, and topics of interest that were discussed during the public hearings and open record period. It is organized alphabetically. Following Table 1, staff provides a detailed discussion of the testimony relating to DCC 18.116 and 18.128. 1 The December 27, 2017 Staff Memorandum included findings and decision and appeal materials can be found at httbs://deschutescountvoriam2.com/Citizens/FileOsen,aspx?Tvbe=1&ID=1760&Inline=True. 2 The application was deemed complete on August 31, 2017. The applicant extended the 150 -day review clock for 21 days for the written record period following the public hearing. Quality Services Perlinined with Pride Table 1 — Testimony Summary Topic Code enforcement Covenants, Conditions, and Restrictions (CC&R's) Cnnnpabb|ewitheunound|nQpropmrtieo-genenoUy Criminal activity and safety Environmental Impacts Expansion Loostion—genenaUy Location to public lands Noise Odor Prohibited uses Public health, safety, and welfare Setback exception Site Suitability Traffic Transportation access — adequate for the use VVakar—genenaUy Testimony Relating to Applicable Criteria Applicable acriteria Yes No � � � � / � / � � � A. Compatibility with Surrounding Properties and Site Suitability Testimony was received regarding whether the proposed use would be compatible with surrounding properties and whether it would impact the rural farm character of the surrounding area (general Iocation). This includes concern regarding the proximity of the proposed use to the public lands managed by the Bureau of Land Management (BLM). In mddition, comments were submitted addressing how fire department's access requirements for both site suitability and neighborhood compatibility (Le. public safety). Staff Comment: The marijuana production is permitted conditionaUy in the MUA-10 Zone and is subject to the general standards governing all conditionai uses, DCC 18.128.015. These standards first look at the subject property and determine if that property is suitable for the proposed use based on site, Ueaign, operating ohonacter|stios, adequate transportation aooeso, and natural and physical features of the site (DCC 10.128.015(A)(1-3)\. SubaequenUy, the standards look at the compatibility of the proposal with existing and projected uses on surrounding properties (DCC 18.128.015(8)). This subsequent review is based on the factors noted above — site, design, operating characteristics, adequate transportation access, and natural and physical features. File No. 247-17-000962-A Page 2 of 6 Regarding site suitability and the fire department's requirements, Senior Transportation Planner, Peter Russell, submitted a memorandum that addressed the comments specific to transportation access (see Memorandum dated January 3, 2018). Based on review of DCC 18.116.330 and 18.124, neither the access to nor improvement of the subject property regarding the firedepartmentmen�s requirements is subject to approval criteria in those two code sections. Because the property is zoned MUA-10, hovvmver, the proposed marijuana production is subject to the conditional use general standards. As noted above, these standards first look atthe subject property to determine if it is suitable for the proposed use (based on site, deoign, operating characteristics, adequate transportation access, and natural and physical features ofthe oite\. It then looks at how those same factors determine if the proposal is compatible with existing and projected uses on surrounding properties. The property has an approved access permit (pernnit SW 3528), which connects to a gravel driveway. The applicant provided two close-up site ` plans illustrating the turning radius of the driveway that encircles the existing agricultural building (refer toMichael Hughes letter dated January 3.2O18). B. Noise Testimony was received regarding intermittent noise that could potentiallydkynupt neighbor's enjoyment of their property and the open space of the neighboring public lands (DCC 18.110.330(B)(11)\. The appellant implied that the applicant should have proposed horizontal screening to mitigate the noise. However, based on the mechanical engineer's report illustrating conformance of the system, the applicant did not propose additional mitigation measure. Staff Comment: The applicant submitted a narrative report dated July 18, 2017 that was stamped byon Oregon licensed mechanical engineer Laura J. whichBreit and addresses the proposed heating, cooling and venting system and confirming compliance with this section. The proposed production area will be designed as a "closed room" facility with CO2 supplementation and air conditioning. Mrs. Breit provides more detail involving the installation ofCan-Fan with anattached Can -Filter (narbnn � filter) aspaofthe nystemn. The |onaUunofthe uyatennovvi||beonthe no�hside ofthe structure. C. Odor Concern was expressed by individuals regarding the odor, generally, and whether the applicant has demonstrated the odor control system will control odor so as notto unreasonably interfere with neighbors' use and enjoyment of their property (DCC 18.116.330 (B)(10)(b)). Staff Comment: In the narrative report by mechanical engineer Laura J. Breit and dated July 18, 2017, Mrs. Breit addresses the proposed odor control system and confirms compliance with this section. D. Prohibited Uses Testimony was received regarding existing commercial uses (e.g. horse boarding and training) occurring on the property. Based on DCC 18.116.330(20). "commercial activities inconjunction withfarnnu8SwhenC8rriodoniDon jun(tiVnw/thannar'uonaon}p"iaprohibded. The argument propertyinthat connnneroim/uses cannot occur onthe �h�sarno�/nneoa��a�nf�h�- at marijuana production (refer to the appellant January 3, 2018 written comments). File No247-17'000002'A Page 3 of 6 Staff Comment: The record shows that the applicant engages in horse boarding, training, and events. For reference, the County Code provides specific definitions (DCC 18.04) and separate listings of the following uses: agricultural use, horse stables, horse events, and commercial uses. Agricultural use is permitted outright in the MUA-10 Zone and which includes horse activities. Furthermore, noncommercial horse stables' and horse events are permitted outright in the MUA-10 Zone. Commercial use (in conjunction with farm use) is a use permitted conditionally in the MUA-10 Zone (DCC 18.32.030(C)). The marijuana production facility will occur inside a portion of the existing agricultural building that also includes horse stalls. However, a proposed, the existing horse activity on the property is not part of the proposed marijuana production facility. Furthermore, the applicant has not proposed a commercial use on the property that will be conducted in conjunction with the proposed marijuana production facility. The applicant addresses these issues in more detail in their rebuttal arguments received January 10, 2018. E. Setback Exception General concerns were expressed by individuals regarding the requested setback exception (DCC 18.116.330(B)(6)(c)) for the use of an existing agricultural structure and thus would impact the surrounding neighbors and public lands to the north. Staff Comment: As proposed, the applicant will use an existing agricultural building. instead of proposing a new structure. The existing building exceeds setback standards for the MUA-10 Zone but does not meet the 100 -foot setback requirement for marijuana production. However, as allowed in DCC 18.116.330(B)(6)(c), a reduction of the 100 -foot setback can be granted if it has been demonstrated that the reduced setback will afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. F. Traffic and Transportation Access Testimony was received that questioned the traffic impacts and adequate fire department access on the subject property. Staff Comment: Senior Transportation Planner, Peter Russell, submitted a memorandum addressing the issues related to transportation access. Based on the small size of the proposed marijuana production facility, DCC 18.116.330(B)(8) regarding access to the site is not applicable. However, the property does have an approved access permit (permit SW 3528). Marijuana production is not subject to site plan review (DCC 18.124) and thus is not subject to any parking or maneuvering requirements found in that code chapter. As previously noted, the applicant provided two close- up site plans illustrating the turning radius of the driveway around the agricultural building intended for the marijuana production facility. 3 As defined in DCC 18.04, noncommercial horse stables allows for the "boarding or keeping of up to five horses owned by persons not the owner or lessee of the horse stables." File No. 247-17-000962-A Page 4 of 6 G. Water Testimony was submitted questioning the information (water rights and water hauling service) provided with the application. Staff Comment: The applicant provided a documentation of their groundwater rights from Oregon Department of Water Resources (OWRD) for use during the irriation season (March 1 through October 31). As indicated p[8vioua|y, the applicant intends to apply with the [8/RD to convert one (1) acre of existing water rights from irrigation to nursery rights. Until that conversion is reviewed and approved, ABC Lightning, LLC will provide water during the off-season. The applicant also provided a letter from an additional water service, Aspen Lakes Utility Co. (see applicant's written comments dated January 3, 2018). N[ DELIBERATION Table provides a summary of the key issues beforthe board. Table 2 — Key Issues TopicStaff Comment Compatibility with Surrounding Properties Site Suitability (Fire) Noise Odor Question Has the applicant satisfied the conditional use general standard of DCC 18.129.015(B)? Has the applicant satisfied the conditional use general standard of DCC 18.128.015(A)? Has the applicant satisfied the noise control requirements of DCC Has the applicant satisfied the odor contro requirements of DCC 18.116.330(B)(10\? File No. 247-17-000962-A The applicant states they have demonstrated that the proposed use will be compatible with the surrounding properties. The applicant states they have demonstrated that the site is suitable based on site, design, operating characteristics, adequate transportation access, and natural and physical features of the site. The applicant submitted mechanical engineer statements. The applicant submitted mechanical engineer statements. Board Analysis Board determination of yes or no in satisfying the requirement for the use to be compatible with surrounding properties. Board determination of yes or no in meeting the site suitability requirement. Board determination of yes or no in meeting noise control requirements. Board determination of yes or no in meeting odor control requirements. Page 5 of 6 Topic Prohibited Uses Setback Exception Traffic and Transportation Access (General) Water Attachments: Question Has the applicant satisfied prohibited use requirement of DCC 18.118.330(B)(20)7 Has the applicant satisfied the setback exception crfteria of DCC 18.118.330/B\(6)/c\? Has the appUcant satisfied the traffic and transportation access requirements of DCC Has the applicant satisfied the water requirement of DCC Staff Comment The applicant stated they are not proposing a commercial activity that will operate jnconjunction with the farm use when carried on in conjunction with a marijuana crop. The applicant stated they have demonstrated that the reduced setback will afford equal or greater mitigation of visual, odor, noise, |i0hting, privacy, and access impacts. Peter Russell (PR), Senior Trans Planner: Based on the proposal, DCC 18116.330(8)(8) is not applicable. The p does have an approved access permit (permit SW 3528). The applicant submitted documentation for irrigation water rights and two private water sources to serve the property. 1. Evidence and Testimony received 12/27/17 — 1/3/18 2. Rebuttal Testimoriy received 1/3/18 — 1/10/18 3. Applicant's Final Argument received 1/10/18— 1/17/18 Board Analysis Board determination of yes or no in meeting prohibited uses requirement. Board determination of yes or no in meeting the setback exception requirements. Board determination of yes or no in meeting access requirements. Board determination of yes or no in meeting water requirements. NOTE: The complete written record is available on the Deschutes County Property Information File No. 247-17-000962-A Page 6 of 6 Staff Memorandum Attachment 1 Evidence and Testimony received 12/27/17 - 1/3/18 *** M. Feltner Testimony dated 1/3/18 P. Russell Written Testimony dated 1/3/18 Appellant's Testimony dated 1/2/18 and 1/3/18 Applicant's Testimony dated 1/3/18 Cynthia Smidt From: Marianne Feltner <stellarranch@gmail.com> Sent: Wednesday, January 03, 2018 11:29 AM To: Cynthia Smidt Subject: File # 247 -17 -000645 -CU Christopher Baker applicant Dear Ms, Smidt, I am writing in regards to the application by Chistopher Baker to grow marijuana on the property known as Bent Wire Ranch. Until recently, I boarded my semi -retired horse at Bent Wire Ranch for many years. He received excellent care and I appreciated the atmoshpere there, one that is unlike so many boarding facilities. It is very quiet there. There was seldom another boarder or other guests on the site. When I would trail ride out back on the BLM land I rarely saw another rider. There are no homes in the proximity of the back of the Bent Wire Ranch property. Regarding the venting of the grow room, there is no one in the path of any discharge. The constant prevailing winds are from either the west or the south, so venting would be blown into the wide open spaces. Also, growing clean marijuana requires a clean grow room, not a place filled with chemicals and pesticides. That's the benefit to the neighboring community of custom growing in a small scale, indoor, highly controlled environment. Regarding the ability for firetrucks to manuever, I can not imagine that there would be a problem. I have driven my truck and horse trailer all around the facility with ease. When there was event at the facility, all kinds of horse trailers would easily drive the many looped driveway configurations and there was plenty of parking for rigs. Hay trucks delivered regularly. When Tumalo was in it's prime in 1912, and the logging industry flourished, there was probably a lot o f controversy over the manufacturing, sale and consumption of alcohol. Now the alcohol industry is celebrated as the salvation of the Central Oregon economy. The legal marijuana industry is new and depends on the entrepreneurial spirit and tenacity of early industry pioneers. It also serves as a way for some people to literally save the ranch, just like other farmers all across America. Times change, laws change, circumstances change and we all need to adjust to new ways of farming. Sincerely, Marianne Feltner 61612 Summer Shade Dr. Bend, OR 97702 1 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes,org/cd MEMORANDUM To: Cynthia Smidt, Associate Planner From: Peter Russell, Senior Transportation Planner Date: January 3, 2018 Re: Response to access issues raised in appeal of marijuana production site off Harper Road (File 247-17-000962-A which appeals 17 -645 -AD) The appellant in the December 27, 2017, Board hearing appealing a marijuana production (grow) operation at 20420 Harper Road raised the issue of an all access road as requested by the Bend Fire Department. Staff addresses the matter below as it relates to the approval criteria of Deschutes County Code (DCC). 1. Applicable access requirements set by DCC 18.116.330(B)(8) If a marijuana grow will have 5,000 square feet of mature canopy or more, then the application must comply with the relevant access requirements of DCC 18.116.330(B)(8)(a through c). The applicant is applying for approximately 600 square feet of mature canopy in a roughly 1,200 square -foot -room. Therefore the access requirements of DCC 18.116.330(B)(8) do not apply and staff cannot condition any requirements related to access. The property already possesses a legal access to Harper Road via Permit #SW3528. 2. Requirements for all-weather surface for parking and maneuvering County code does require all-weather surfaces for parking lots and driveways under DCC 18.116.030(F). However, those requirements are triggered by site plan review (DCC 18.124) and this application does not fall under that review criterion. Even if it did, DCC 18.116.030(F)(4) provides exceptions to that requirement. While staff recognizes the desires of Bend Fire Department for an all-weather road, the County cannot require an item that is not part of an approval criteria. 3. Rural driveways in general The County is the road authority for driveways onto public rights of way. DCC 17.48.210(A) requires property owners obtain a permit. DCC 17.48.220 sets the standards for driveways in terms of width, drainage, and construction. The Road Department reviewed this land use application and had no comment other than to acknowledge the driveway was permitted. Quality Services Performed with Pride County properties, particularly properties zoned for agricultural uses, are much larger than urban properties and as a result typically have much Ionger driveways. The County does not require driveways onto rural properties to be paved from the road all the way to the house. This is because it would be a large financial burden upon the property owner of Multiple Use Agricultural (MUA-10) or Exclusive Farm Use (EFU) lands to pave several hundred feet or more. If the use is intensifying or a commercial or industrial operation will bring employees or the general public onto the pnopmdy, then the County requires the all-weather surface under DCC 18.116.030/F\. Again, there are exceptions based on the property's location and characteristics. These can include presence of a high water table, site is outside of an unincorporated community, proposed non -pave surfacing will prevent dust, or the use is in a Rural Industrial zone. The subject property is zoned MUA-1O. Conclusion Staff finds neither access to the site nor the construction of the driveway is subject to an approval criteria under County code. Staff by its comments has found the access complies with DCC 2 Cynthia Smidt From: Ed Fitch <ed@fitchlawgroup.com> Sent: Wednesday, January 03, 2018 12:56 PM To: Cynthia Smidt Cc: nunzie@pacifier.com Subject: Baker Application Cynthia One additional issue that has come up is the site plan detail. The plan shows stairs that were never approved . The plan also photos also show a large overhead door, presumably to the grow area. If so that door needs to be closed to insure odor does not escape directly outdoors. The plan also does not show any vegetative screening between the BLM land to the north and the grow operation. If this is approved such screening should be required particularly in light of the exemption requested. Edward P. Fitch Attorney 210 SW 5th St., Suite 2 Redmond, OR 97756 541-316-1588 541 316-1943 fax ed@fitchlawgrouo.com www.fitchlawgroup.com CONFIDENTIALITY NOTICE: This email transmission, and any documents, files or previous email messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please notify us be reply at infoPfitchlawgroup.com or by telephone at 541 316-1588, and destroy the original transmission and its attachments without reading them or saving them to a disk. 1 Cynthia Smidt From: Ed Fitch <ed@fitch|awgroupzom^ Sent: Tuesday, January 02, 2018 2:39 PM To: Tammy BuneyTony De8one;Phil Henderson Cc: Cynthia Smidt Nunzie Subject: supplemental memorandum and exhibits : Baker application No. 247 -17 -000645 -CU Attachments: SKM_C224e18010215410.pdf Please see the attached. Thank you. Edward P. Fitch Attorney 210 SW 5th St., Suite 2 Redmond, OR 97756 541'316'I588 541 316-1943 fax edPfitch|awgrouu.cum www.fitch|awRmuP.com CONFIDENTIALITY NOTICE: This email transmission, and any documents, files orprevious email messages attachedtoit may contain confidential information that is legaily privileged. If you are not the intended recipient or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. Ifyou have received this transmission in error, please notify us be reply at infoPfitch|awerouo.comor by telephone at 541 316-1508, and destroy the original transmission and its attachments without reading them or saving them to a disk. 1 BEFORE THE BOARD OF COMMISSIONERS DESCHUTES COUNTY File Number: 247 -17 -000645 -CU Regarding the Application to Establish a Marijuana Production (Grow) Facility Applicant: Christopher Baker Location: 20420 Harper Road, Bend SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO THE MARIJUANA GROW APPLICATION Prohibition. Under Section 18,1 1 6.330(20) of the Deschutes County Code, as noted before this property is in the MUA-10 Zone. In that zone the following uses are prohibited: "Commercial activities in conjunction with farm use when carried on in conjunction with marijuana crop." The applicant stated at the hearing that the commercial activities would have to be specifically related to the marijuana crop. That assertion is incorrect. The prohibition on commercial activities carried on in conjunction with a marijuana crop uses the term "in conjunction" twice. Webster's defines conjunction in part, as "an occurrence together in tune and space." Here, by its plain meaning, the term "in conjunction with" means occurring on the same property, at the same time. In that light, if there is a commercial activity on the same property in which a marijuana application is proposed, the combination of those uses on the same property is prohibited in an MUA-10 Zone. In interpreting code provisions, a reasonable Page 1 — Supplemental Memorandum in Opposition to Marijuana Grow Application G:\Clients\ELT \Could, Annunziala\Gould, Annunziata L11\2017-01-02 Supp -Memorandum in Oppusition.docx FITCH LAW GROUP, 1'C. 210 SW 5"' St., Suite 2 Redmond, OR 97756 Phone: 541-316-1588 Fax: 541-316-1943 interpretation must be attained; one which is supported by the language itself. The applicant suggests an interpretation that would include words that are not in the text of this prohibition in the MUA-10 Zone. For the applicant to be correct, the wording would have to read: "Alarijuana commercial activities in conjunction with farm use when carried on with conjunction a marijuana crop." This interpretation first is not what is writtcn. Second it doesn't make sense. There is a similar provision in the Cannabis Regulation under state statutes. Under ORS 475b.370(2)(c), the statute prohibits: "Commercial activity as described in ORS 215.2132(c) or 215,283.2(a) carried on in conjunction with a marijuana crop." None of the commercial activities identified in either one of those statutes under ORS Chapter 215 have anything to do with marijuana. In fact, those commercial activities include for example, dog boarding or dog kennels and/or a home occupation. On this property we have horse boarding, together with horse training, which is similar to a dog kennel or dog boarding. In this case, we also have what is clearly a home occupation for the Bakers. The thrust of not only the state but also the county regulations is this; one cannot have a distinct commercial activity on the same property as a marijuana operation. The logic of this separation is evident in reviewing the website for Bentwire Ranch. Attached as Exhibit A are copies of the pages from that website. From the pictures it is very clear that this is not age restricted. There are young people on site for both the board, training and events that Bentwire Ranch puts on. This is precisely the kind of activity that should not be carried on in conjunction with a marijuana operation. As such, this application needs to be denied. Page 2 — Supplemental Memorandum in Opposition to Marijuana Grow Application G: Clients\ FPI' \Gould, Annunziata\Uould, Annunziatal.0 \2017-01-02 Supp-Memoiandum in Opposition.docx FITCII LAW GROUP, PC 210 SW 3' St., Suite 2 Redmond, OR 97750 Phone: 541-310-1588 Fax 541-316-1943 2. Water. The Deschutes County Code provisions regarding water require the following: a. "A copy of a water right permit, certificate or other water use authorization from the Oregon Water Resources 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 he used from a source that does not require a water right." The applicant has not provided any of the above in conjunction with the application. The permit provided by the Oregon Water Resources Department allows use of water on specified land for a specified purpose. The applicant may very well be able to get some other type of permit from the Oregon Water Resources Department but that is not in the record and does satisfy that code requirement. The applicant has also not provided a statement from a public or private water provider. There is a letter from a trucking company but that is not a public or private water provider. Finally, the applicant has not provided any proof from the Oregon Water Resources Department that the water to be used in this application is from a source that does not require a water right. Considering the applicant's failure to meet these requirements of the code the application should be denied. There is also the issue of whether or not the use of this water in the off -irrigation season is legal. That issue has been addressed with the Board in not only this application, but other also Page 3 — Supplemental Memorandum in Opposition to Marijuana Grow Application Ci: Clients \ EPRCiould. Annunziata \ Gould. Almon -Liam A20 7-01-02 Supp-Meinoranduin in Opposition.docx FITCH LAW GROUP, PC 210 SW 5th St., Suite 2 Redmond, OR 97756 Phone: 541-316-1588 Fax: 541-316-1943 prior applications. Under the definition of municipal or quasi -municipal water the use of water outside of that municipal or quasi -municipal delivery system, for a use not ordinary and customary to the use of municipal water, (i.e. irrigating a lawn or garden as opposed to an agricultural crop) is prohibited. 3. Exemption. This property abuts land open to the general public, including persons of all ages. The code requires a 100 -foot setback from a property line to mitigate against any indicia of the marijuana use to adjoining properties. Adjoining properties include public lands. Indeed, there is even a prohibition under the County Marijuana Regulations that a production facility cannot be within a 1,000 -feet of either a state park or national monument. Those places are open to the public. Similarly, land immediately adjacent to this property is open to the public. In other words. this really isn't much different than a national monument or state park. Given the enhanced sensitivity to the proximity of a marijuana operation to lands open to the public. The exemption here makes little sense at all. Finally, as noted by the other speakers at the hearing, there is really no special reason for an exemption here. If there was an environmental reason that would preserve some sensitive environmental matter, justifying an exemption would be warranted. The only reason for the exemption here is that the building is already there. Given the revenue stream these operations are projected to have, they can put the operation in a different building on-site and not require an exemption. Page 4 — Supplemental Memorandum in Opposition to Marijuana Grow Application (1:1Clients \LPIAGotild. Annunziataqinuld, Annunziata LU \2017-01-02 Supp-Monorandum in Opposition.docx Frail LAW GROH', PC 210 SW Sth St., Suite 2 Redmond, OR 97756 Phone: 541-316-1588 Fax: 541-316-1943 4. Noise and Odor. It is questionable whether or not the noise and odor can be mitigated within the 55 -ft. setback proposed by the applicant because the building is within that distance to the property line. Regarding noise there is no screening horizontally that has been suggested by the applicant. It is questionable whether or not the noise and odor can be mitigated within the 55 -ft. setback proposed by the applicant. Regarding noise, there is no screening horizontally that has been suggested by the applicant and there has been no testing on site that the outdoor HVAC system will have any buffer between the HVAC system and the property line. With the odor, no specific documentation nor specific details have been provided that the insulation of this filter system and maintenance regarding the filter systems proposed by the applicant, remain capable of eliminating odor from adjoining properties. 5. Conditional Use. This is a conditional use in the MUA-l0 Zone. As such the County does have the ability to assess the impact of this use and the characteristics of the use to determine whether there are health and safety issues associated with the use. As outlined at the hearing there is a serious conflict between the access to this building for fire purposes and what the applicant is proposing. According to the applicant the grow room will basically be a "fortress" and impenetrable. The fire department, however, requires reasonable access in the event of an emergency. Those two issues have not been reconciled and there is a health and safety issue with the application proposed by Page 5 — Supplemental Memorandum in Opposition to Marijuana Grow Application G:\Clients\EPF\Gould, Annunziata\Gould, Annunziata LU \2017-01-02 Supp -Memorandum in Opposition.docx FCPCH LAW GROUP, PC 210 SW 5' St., Suite 2 Redmond, OR 97756 Phone: 541-316-1588 Fav: 541-316-1943 the applicant. Further, there is no documentation in the file that there be an all-weather surface open access from the road to the building. The details here regarding odor, noise, and access are important because they do involve health and safety issues, not only for the occupants on the property, but also for the visitors and adjoining properties owners and visitors. In this case, the applicant has taken a cavalier approach towards compliance with the code. There have been code compliant issues (See Exhibit B) with the applicants in the record from before. Their letter to the neighbors, a copy of which is attached hereto as Exhibit C, clearly reflects a disinterest in the well-being of the applicants' neighbors. There can be no question that this letter is threatening. It starts out with the expression "Hell -o -neighbor". A salutation with that kind of spelling was done purposely. This isn't one where a mistake was made. This was an intentional threat to the neighbors to back -off or there would get some dire consequence to them. This application fails for several reasons. Most particularly because of the prohibition of the combination of these uses on the property, as well as the failure to meet the requirements of the code to insure legal water is available. Finally, the building is just too close to public lands and an exemption should not be allowed. Dated this ,'_ day of January 2018. Respectfully submitted, FITCH LAW GROUP, PC By: Edward P. Fitch, OSB #782026 Attorney for Annunziata Gould Page 6 — Supplemental Memorandum in Opposition to Marijuana Grow Application G:\Clients\EPF\Gould, Annunziata\Gould, Annunziata 111\2017-01-02 Supp -Memorandum in Opposition.doex FITCH LAW GROUP, PC 210 SW 5'h St.. Suite 2 Redmond. OR 97756 Phone: 541-316-1588 Fax: 541-316-1943 -.2•2.•/2017 I tome • Betio/vire Ranch v ;r Home and Central Oregon is Horse Country Central Oregon's combination of sunny clpyrN and on 411'.;iting, iunount of cirvie tiding tei rain make our area r1VVOrid class horse destination. For those of you already living here, this comes, as n0 surprise. What may surprtsE"y•ou is the large range of services available ;lt fitNP. r , Monthly f3oarding, Short Term Boarding,, Coaching, ttorsr•s for Salo, I Ii hail C011l Se a'id other great riding, opportunities- both hero and nearby. BM Events yott v,.,,trtt to t-lo•t ,,t, cvt.ot ,..,;ata to Atter.d ci,r ,"„•:?r11 EXHIBIT A Page 1 of 12 Ittlrfiktuntwirorritich.conri tr,3 12/29/2017 Horses for Sale, Lease or Adoption BWR Horse Motet 3 Equine NeuroEthology http /,bentwIrolanoh.comi ionic BentWire, lanc.1 EXHIBIT A Page 2 of 12 213 11,r21-1/2017 With new ways of understanding the horse's g brain through neuroscience, we can 10 how they are hard wirod. http irbentwirerench.com/ t -I< n lc • Bent\Mre 12arrch EXHIBIT A Page 3 of 12 3,3 12 /29/2(1 7 (:chitql with Lucinda • Bentwiii:i Rcnch ertt e Oneonbne C. —hing with Lucinda s ;"' • ; ,.,••••• 4 tf(r .1.11(10 AH(.11 C:01 ses are riot autonon low, beings. To fecd they 'wed to know Hcllv01.41 411 k." ',04.44)(44W,,t- of than wild coomeri. of horses being unpredictable? VOL, can leorn how, to 5e0 1( on orqt Develop confidence through knowledge 01 the whole hoise. With this piugrai» you writ learn the skill:, you fleet] to respond effectively and with your horse. ugi'arci ii' IOir-apprEni.. 9Ci in obstacle, co eL.olvirig Id OV to -.-.upport 11114) 44be11t071101'4411C11.C4410/1.41144,041-01q4-4.104144)1111:1! EXHIBIT A Page 4 of 12 1/2 1.1 Oric-on-()ne Co;-icluc..1 ''l L iiGulcia • lit:nr.Noo i;jyt-• !:;.*+4'; ;q: 1 Arcyrlthave "I'15 -'y Dny- on 1t1Ildvi aul Il1gOC)C.1 by mot i);lys -rife ,iv.3,1aL)le tor 1l1 tIii LcJi. Play i be 2 3 hew:: ol r,roup ccia( heo 1 t(iii ti!,willy on the tiol! EXHIBIT A Page 5 of 12 Ilttp Pt)entwiretEiMeh (x.1'11/0110.'011 0110-eo1iching; 2,2 12[25,;2O1 Hcyis e ) 1-101b0 Mold • BentWire kanch Temporar 'Vacation " 'Boarding Driving to Bend? Driving through Bend'? Stop at Bent Wire Ranch with your horse ,ind g for a nigitt or vi.crek. You can camp in your rig or in one of sever nearby . We have a nice safe comfortable rtioce for on horse while you're here I ots of great iding fight off our property or close by. • 75 aror electr cal for your rig • Clean shower for you in the barn • Long rigs have no profiler -1i turning around • Ver y. voiy quiet at niglit• no traffic noise htip:/Thentwil comihorbo- motel/ your dogs out of your cioni OJ1TI ower, and t01 3 couple of nights whoie on ition to the listed lee EXHIBIT A Page 6 of 12 1 r'cr 1:--2p;701 Lxira Service5- $5.00 each day I. Hay 1(iCLt (fl t - 'kyr Luc 1A1) 9/1UJI Iij)rbbilivbrerediuli Go! iiii)016e-ioil I itdsk., f,lotol • 13(2w:hot: katIch EXHIBIT A Page 7 of 12 122f3/201--/ I . r e c-4 • -rg vcr ° of ION e Ra oftl Thank you to all that tame and participated. litie will be announcing our next clinic with Lutind12 13 and Elsa Sinclair soon! Until then.... enjoy some pictures from the clinic. Horsemanship - The Next Level June 30 -July 2, 2017 '11.P A Hands Ontlinte with fisa, Sinclair and. Lucinda B's Intro to Equine NeUroEthology: ' Experience Elsa's tronsfohnative training techniques !or yourself. Bring your horse or use one of Bentwire Ranch's herd, inciwiing IRA mustmigS. SCHEDULE: Lecture Friday.)une 30 -.5:30.0 8:00Pro' $25 per person, dinnerincluded - limited to 25 Hands On . . Sati.irday, July 1 9:09arn to 4,:00orn $150 per person, lunch included - iirn,ted to 12 Hands On ClfnIc #2 Sunday, July 2 -10:30am to 4:00pm - $125 per person, lunch included - Iirnited to,12 Auditing - 1.35 per person_per day:, limited to 25 .„.. . ONE QUESTION nos all ,taftvii with a question. A question 1 found turning inside of me for an answet What If horse> were given a [1,...el Weuld thry tet 01 r ide them? WItt,c,t for, tools, to comroh end ,thout bnbes to lure thefn? - rho Suldoir tr; BaRtwlie Ranch • 20420 Rel, bend OR laantveRiuctr.Ir $4,601-1595 ucirula B.- Prinz! EXHIBIT A Page 8 of 12 12,29/2017 Events • BunIVVire Ranch EXHIBIT A Page 9 of 12 1,1i, 0,111,1g11.1,,s11,1 12/29/2017 Ir \fonts • BonVVirt; Rand) EXHIBIT A Page 111(412 12,29/701 Events • BentWire Ranch EXHIBIT A Pagell ofI2 htUi likaltwirereecn.c,oraleveeik:d 1;;;M2017 1: vents • f3crthAltre Rimcf June ao Jude 30, 2017- Lvening presentation by Id Presentation r‘rill include discussion of the I' ieecioni Based 1raining' techniques developed ey Llsct Lucinda F., will discuss , tedrning and Corlrlitkm Ginner 5 ncluded. July 1 & 2, 2017- Hands -On Clinic given by Elsa Sincloll using the 'Freedom 'training' techniques used in her film, 'Taming Wild". Bring your horse or use one of BentWire Ranch's herd. is! EXHIBIT A Page 12 of 12 11 CDD COVER SHEET FOR MAS 08/06/2007 09:35:42 11 11 11 11 11 11 11 11 11 1 11 11 1 FILE ID 1612090000503BU20070806093542 TAXMAP 16]2090000503 SERIAL 189396 DIVISION BU SITUS 20420 HARPER RD HOUSE# 20420 STREET HARPER CONTENT AG -07-74 APPLICATION, FLOOR PLN, PLOT PLN LOCATED IN DATE FILE Cover Sheet Identifier AHJKMTWX EXHIBIT B Page 1 of 7 (1) c?; -1 /4-; (4, I?_Cr:7 AppflacaVcao for t qutine Erie ptba Equine facilities are exempt from building permits under Chapter 1 Sec.105.2(14 of the International Building Codes and Oregon Law (ORS 455.315) C'C 455.315 Equine building epplloeuon of specialty coda: regulation by county. Nothing In this chapter is Intended to authorize the (5) A structure used in which 10 or more persons ere application of a stale structural specialty code to any equine present el any one time, building (ci A structure regulated by the Stale Fire Marshal pursuant 12) As used in this section "equine facility' means a structure to ORS eheptor 476, located on a farm end used in the operation of the farm for (dl A structure used by the public, or the stabling or training equines; or riding lessons and training ic) A Structure subject to Sections 4001 to 4127 Title 42, clinics. united Stales Code (The National Flood Insurance Act of 'Equine facility' does not include. 1958) as emended, end regulations promulgated there - (a) Adwelling. under. NOTE; *Although the proposed structure may qualify for an exemption from a building porrnit, other requirements may apply. For example, if it is to include electrical, mechanical and plumbing, installation permits for, end inspections of such installations, will be required. In addition, s septic site evaluation and/or septic permit may be required. Planning approval for the proposed use may also be required. *Before a determination is made on your application for an equine facility exemption: 1. A completed application and application fee must be submitted, 2. A completed plot plan must be submitted, and 3. An elevation of the building and floor plan must be submitted for review.Penile IEquina E ne /. If you believe the structure you ore proposing to construct, or alter, may qualify for on exemption from a building permit as an �elquine facility. please II r • • , r r • r Bion: 1. For what purpose will the structure be used? 14° e71-1•-• 514/ 6*..1"/triytil,+.tr 2. Will any person live or sleep in the structure? Yes I , / J NO 3. 15 the property zoned for farm use (EFU)? Yes 4. Is the prOperty Specially assessed for farm use by the County Assessor? Yes 5. Will the proposed structure be located on property currently employed in farm use? Yes ! t/ f No 6. How long has the property been in farm use? iM�t 7. What Is the nature of the current farm use of the property) n i ett t!S 71,, Holt 8. Will the public have access to any portion of the structure? If , for what purpose? Yes 7 No ac r<S i rr ti'oe% Situs address: c20'Yaa 4441'642. 4efCkD file. 9770r Owner Name: ey4Ai51715 efielZJ LGCC.1NDA- e.041‹rER Contact Phone:(51/!) 38 S • /7 7 Owner Mailing address: 6481 wog Avr $Mo BSivd QR. 37701 Total square feet of proposed structure: 7; 7S 3 Number of stories; 1 Size of parcel: 10 (acres) • Please read and sign below: I certify that I have read all of the above requirements for en equine facility exemption, that the structure I am proposing to build or alter complied with all requirements for an exemption, and that I have truthfully answered all of the questions above. I agree that the setbacks, which have been verified, will be maintained. I further certify that I understand that any alternate use of the proposed structure may disqualify the structure as an exempt equine facility and may result in a citation being issued and other legal measures being taken by the county. I further certify that I understand that I may be required to meet Planning end/or Environmental Health requirements and that any electrical, plumbing or mechanical installations will require permits and inspections. Signed (Owner): (. tillwi Date: 4,1c> • 07 To be completed by CDD staff; � Tax account*: T /‘' R 1.'1q S l Lot S� Zone(s): %/%4i/(r1/°//9—r Min setbacks: F l I SRS (lo RS i 3c, R ( Septic Permit q' S - c=, 3d' Actual setbacks: F//51 LS G �0 RS/" R 34 Height of building r hi est point: ft Solar Approved: tech Initials EXHIBIT B Page 2of7 -acNutes--: Couni IL Comuriity Deopnrent epartmefl 117 1W Lafayette Ave, Bend OR 97701 (541) 388-6575 FAX 385-1764 REQUEST FO APPEAL Not all Building Code provisions are clear. When there are practical difficulties involved in carrying out the provisions of the Code, modifications for individual cases may be granted. For customers who are dissatisfied with a staff member's decision, an appeal may be made to the t uilding Official. Date: 7—/g----° Permit Number: Property Owner(s) Name: C " -7-k /5-1 e Address: 7,0`120 _go 1 City, State, Zip: 13.--Anc,A g_ 7 i Phone: -5 g — 7 FAX: Job address/location: 201-ia0 g-9 Please note the nature of your request and Identify the specific Code Section that you would like reviewed. Why do you feel that this appeal is necessary? (Use addltIona ages as necessary.) cc 5 to 6 r y kierfez 20 747 . 6-4-1 pt?,oX vijz. 1-tc, y -C 7 21/07 Initial Appeal Findings: Date Building Official:.Peov4e-k-4, bfr-Doei) bldg\forms\11/02/2006 DRP:bgd EXHIBIT B Page 3 of 7 s 44e° Pr ri 6 6 p7 - z „ e V> K7- 5 de A (5) 61 etaL roo EXHIBIT B Page 4 of 7 0.0.0 "440.6 7Yrust Type ral, .4004 Op 87104 Mora 604800 ' - 6 r04 001+ 6044 142.3 7 42(( Yl '141744 ." 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Campo... 4414er aaan0* oem'Yibb 4414 a0n No. 46444.. 514110nono 1154 WOW,. *4157140 OR4P 166/1.6 220/165 EXPIRATIptr DATE: 06.30-08 J March 19,2007 MiTek' 1mon4Mataro Lfra cw 10.4400 CA 70410 EXHIBIT B Page 5 of 7 6 n vo+ — ' ! r - "V EXHIBIT 13 Page 6 of 7 1 if t fr. ; J ) 1 kt 1 i'li I? 1 i ii I : . 1 EXHIBIT B Page 7 of 7 Hd|'oNpigh&or 11-26'17 We have done everything we can do to make the proposed medical cannabis grow on our property as secure arid dkcrete as possibie. We have enclosed the letter we wrote to the county in response to a few of the folks in the area that don't like or maybc dont understand the nature of what we are proposing. In addition to this we wanted you to know that if for some reason we do not get the conditional use permit we will be taking the front 5 acres pasture arid growing Hemp. This of course does not need a conditional use permit and we wUl plant the first crop in 2010. We hope we can move forward with our discrete operation instead of out in the open Hemp grow. Thank you for your consideration The Bakers 20420 Harper Rd EXHIBIT C H UG. E 5, ()ITILL Q710 NW BONDS INIT T. SHIN 206 ( )1{1:0(1N 9770,1 January 3, 2018 Ms. Cynthia Smidt Associate Planner Deschutes County Planning Department P.O. Box 6055 117 NW Lafayette Avenue Bend, Oregon 97708-6005 MAlI P liOX 7619 131N1). 01F( iON 97'708-7()19 RE: File No. 247 -17 -000645 -CU Dear Ms. Smidt: I have enclosed the following materials to supplement the record in the above entitled matter: 1. Copy of Water Rights Certificate for Avion Water 2, Copies of Relevant Laws and Regulations 3. Copy of Email from John Short to Tony DeBone regarding water usage 4. Original Mechanical Engineer Report which details odor and sound issues specific to the proposed building 5. Will Serve Letter from Aspen Lakes Utility Company, LLC. 6. Close -Up of Plot Plan detailing the turning radius of driveway. These materials are relevant to the issue of the appropriateness of using Avion Water that is delivered to the applicant's property for use in the production of marijuana during the winter months and regarding the concerns about access to the property by fire emergency vehicles. I have highlighted the most relevant sections of the laws and regulations. I will reserve further comment on these issues and others raised at the hearing for the applicant's final arguments, Sincerely, • Michael R. Hughes Attorney at Law JAN MICHAEL R. HUGHES P 541 408 9884 F 541 408 9894 L rnthughesCri)mrhugheslaw con) W rnrhuglieslaw corn TRIAL LAWYER/CONSUL] AN I STATE OF OREGON t DESCHUTES PERMIT TO APPROPRIATE THE PUBLIC WATERS This is to certify that I have examined APPLICATION G-10184 and do hereby grant the same SUBJECT TO EXISTING RIGHTS and the following limitations and conditions: This permit is issued to Avion Water Co., Inc., of 60813 Parrell Road, Bend, Oregon 97701, phone 382-5342, for use of the waters of 11 wells, being 45 gallons per minute from Well A-1, 120 gpm from Well A-2, 125 gpm from Well B-1, 125 gpm from Well B-2, 85 gpm from Well C-1,* for the PURPOSE of quasi -municipal use that the PRIORITY OF THE RIGHT dates from for 300 gpm February 27, 1981 for 1,595 gpm and November 12, 1982 and is limited to the amount of water which can be applied to beneficial use and shall not exceed 1,895 gpm measured at the point of diversion from the wells , or its equivalent in case of rotation with other water users. The well is to be LOCATED: Well A-1 - 325 feet South and 200 feet West from N 1/4 Corner, Section 3; Well A-2 - 2,325 feet South and 86 West from N 1/4, Section 3, both being within NE 1/4 NW 1/4, Section 3; Well B-1 - 264 feet North and 947 West from SE Corner, Section 3, being within SE 1/4 SE 1/4, Section 3; Well B-2 - 274 feet North and 937 feet ** A description of the PLACE OF USE under the permit, and to which such right is appurtenant, is as follows: 125gpm from Well D-1,125gpm from Well E-1 600 ,�pm from Well F-1,(240)gpm from Well F-2, 120 gpm from Well G-1, 185 gpm from Well H-1 West from SE Corner, Section 3, being within SE 1/4 SE 1/4, Section 3; Well C-1 - 2,000 feet South and 706 feet West from NE Corner, Section 10, being within SE 1/4 NE 1/4, Section 10; Well D-1 - 90 feet North and 700 feet East from W 1/4 Corner, Section 2, being within SW 1/4 NW 1/4, Section 2; Well E-1 - 268 feet South and 260 feet East from NW Corner, Section 10, being within NW 1/4 NW 1/4, Section 10; Well F-1 - 2,260 feet South end 315 feet West from NE Corner, Section 21, being with SE 1/4 NE 1/4, Section 21; F-2 - 2,260 feet South and 300 feet West from NE Corner, Section 21, being with SE 1/4 NE 1/4, Section 21; Well 0-1 - 1,010 feet South and 1,805 feet East from NW Corner, Section 1, being within NE 1/4 NW 1/4, Section 1; Well H-1 - 1,413 feet North and 1,070 feet East from S 1/4 Corner, Section 1, being with NW 1/4 SE 1/4, Section 1, all in Township 18 South, Range 12 East, WM, in the County of Deschutes. ** SEE NEXT PAGE APPLICATION G-10184 SW 1/4 NE 1/4 SE 1/4 NE 1/4 NE 1/4 NW 1/4 NW 1/4 NW 1/4 SW 1/4 NW 1/4 SE 1/4 NW 1/4 NE 1/4 SW 1/4 NW 1/4 SW 1/4 SW 1/4 SW 1/4 SE 1/4 SW 1/4 NW 1/4 SE 1/4 SW 1/4 SE 1/4 Section 2 NE 1/4 NE 1/4 NW 1/4 NE 1/4 SW 1/4 NE 1/4 SE 1/4 NE 1/4 NE 1/4 NW 1/4 NW 1/4 NW 1/4 SW 1./4 NW 1/4 NE 1/4 SW 1/4 NW 1/4 SW 1/4 SW 1/4 SW 1/4 SE 1/4 SW 1/4 NE 1/4 SE 1/4 NW 1/4 SE 1/4 SW 1/4 SE 1/4 SE 1/4 SE 1/4 Section 3 E 1/2 NW 1/4 NE 1/4 SE 1/4 Section 4 SW 1/4 SE 1/4 Section 9 N 1/2 NE 1/4 Section 10 NE 1/4 NE 1/4 NW 1/4 NE 1/4 SW 1/4 NE 1/4 SE 1/4 NE 1/4 NE 1/4 NW 1/4 NW 1/4 NW 1/4 SW 1/4 NW 1/4 SE 1/4 NW 1/4 NE 1/4 SW 1/4 NW 1/4 SW 1/4 SW 1/4 SW 1/4 SE 1/4 SW 1/4 NE 1/4 SE 1/4 NW 1/4 SE 1/4 SW 1/4 SE 1/4 SE 1/4 SE 1/4 Section 12 W 1/2 SE 1/4 W 1/2 NE 1/4 S 1/2 NW 1/4 N 1/2 SW 1/4 Section 14 NW 1/4 Section 15 W 1/2 NE 1/4 E 1/2 NW 1/4 E 1/2 SW 1/4 Section 16 SW 1/4 SE 1/4 PERMIT G 9946 Township 17 South, Range 12 East, WM Section 21 Section 22 Section 27 Section 34 Section 35 Section 36 Township 17 South, Range 13 East, WM Section 31 Township 18 South, Range 13 East, WM Section 6 NE 1/4 E 1/2 N 1/2 W 1/2 W 1/2 SE 1/4 SW 1/4 NE 1/4 SE 1/4 SW 1/4 SE 1/4 NE 1/4 S 1/2 SW 1/4 E 1/2 NW 1/4 NE 1/4 NW 1/4 NW 1/4 SE 1/4 NW 1/4 SW 1/4 SW 1/4 SE 1/4 NW 1/4 SW 1/4 SE 1/4 SW 1/4 SW 1/4 SE 1/4 SW 1/4 SW 1/4 SE 1/4 NW 1/4 page three The well shall be constructed in accordance with the General Standards for the Construction and Maintenance of Water Wells in Oregon. The works constructed shall include an air line and pressure gauge or an access port for measuring line, adequate to determine water level elevation in the well at all times. The permittee shall install and maintain a weir, meter, or other suitable measuring device, and shall keep a complete record of the amount of ground water withdrawn. Actual construction work shall begin on or before February 11, 1984 , and shall thereafter be prosecuted with reasonable diligence and be completed on or before October 1, 1984 . Extended to October 1, 19$9 axis ^-41-0 A- - 10-+-9t f l©- L -41 1 Complete application of the water to the proposed use shall be made on or before October 1, 19 85 Extended to October 1, 19$9 , cx444-14tP4 t» 10-0-9qio-+-49 Witness my hand this 11th day of March ,19 83 . /Q/ JAMES E. SEXSON WATER RFSO1 TRCES OTREC 'rnR RELEVANT OREGON LAWS AND REGULATIONS LAWS 475B.063 Duty to request land use compatibility statement. (1) Prior to the issuance of a license under ORS 475B.070, 475B.090, 475B.100 or 475B.110, the Oregon Liquor Control Commission shall request a land use compatibility statement from the city or county that authorizes the land use. The land use compatibility statement must demonstrate that the requested license is for a land use that is allowable as a permitted or conditional use within the given zoning designation where the land is located. The commission may not issue a license if the land use compatibility statement shows that the proposed land use is prohibited in the applicable zone. (2) A city or county that receives a request for a land use compatibility statement under this section must act on that request within 21 days of: (a) Receipt of the request, if the land use is allowable as an outright permitted use; or (b) Final local permit approval, if the land use is allowable as a conditional use. (3) A city or county action concerning a land use compatibility statement under this section is not a land use decision for purposes of ORS chapter 195, 196, 197 or 215. [2015 c.614 §34(4)] 475B.320 Preemption of municipal charter amendments and local ordinances. The provisions of ORS 47513.010 to 475B.395 are designed to operate uniformly throughout the state and are paramount and superior to and fully replace and supersede any municipal charter amendment or local ordinance inconsistent with the provisions of ORS 475B.010 to 475B.395. Amendments and ordinances that are inconsistent with the provisions of ORS 475)3.010 to 475B.395 are repealed. [2015 c.1 §58; 2015 c.614 §571 475B.340 Local time, place and manner regulations. (1) For purposes of this section, "reasonable regulations" includes: (a) Reasonable conditions on the manner in which a marijuana producer licensed under ORS 475B.070 may produce marijuana; (b) Reasonable conditions on the manner in which a marijuana processor licensed under ORS 475B.090 may process marijuana; (c) Reasonable conditions on the manner in which a marijuana wholesaler licensed under ORS 475B.100 may sell marijuana at wholesale; (d) Reasonable limitations on the hours during which a marijuana retailer licensed under ORS 475B.110 may operate; (e) Reasonable conditions on the manner in which a marijuana retailer licensed under ORS 475B.110 may sell marijuana items; (1) Reasonable requirements related to the public's access to a premises for which a license has been issued under ORS 475B.070, 475B.090, 475B.100 or 47513.110; and (g) Reasonable limitations on where a premises for which a license may be issued under ORS 475B.070, 475B.090, 475B.100 or 475B.110 may be located. (2) Notwithstanding ORS 633.738, the governing body of a city or county may adopt ordinances that impose reasonable regulations on the operation of businesses located at premises for which a license has been issued under ORS 47513.070, 475B.090, 475B.100 or 475B.110 if the premises are located in the area subject to the jurisdiction of the city or county, except that the governing body of a city or county may not adopt an ordinance that prohibits a premises for which a license has been issued under ORS 475B.110 from being located within a distance that is greater than 1,000 feet of another premises for which a license has been issued under ORS 475B.110. (3) Regulations adopted under this section must be consistent with city and county comprehensive plans and zoning ordinanccs and applicable provisions of public health and safety laws. [2015 c.1 §59; 2015 e,614 §33] 475B.370 Marijuana as crop; exceptions to permitted uses. (1) Notwithstanding any other provision of law, marijuana is: (a) A crop for the purposes of "farm use" as defined in ORS 215.203; (b) A crop for purposes of a "farm" and "farming practice," both as defined in ORS 30.930; (c) A product of farm use as described in ORS 308)60)62; and (d) The product of an agricultural activity for purposes of ORS 568.909. (2) Notwithstanding ORS chapters 195, 196, 197 and 215, the following are not permitted uses on land designated for exclusive farm use: (a) A new dwelling used in conjunction with a marijuana crop; (b) A farm stand, as described in ORS 215.213 (1)(r) or 215.283 (1)(o), used in conjunction with a marijuana crop; and (c) A commercial activity, as described in ORS 215.213 (2)(c) or 215.283 (2)(a), carried on in conjunction with a marijuana crop. (3) A county may allow the production of marijuana as a farm use on land zoned for farm or forest use in the same manner as the production of marijuana is allowed in exclusive farm use zones under this section and ORS 215.213, 215.283 and 475B.063. [2015 c.614 §34(1) to (3)] Regulations OAR 845-025-1030 Application Process (6) Applicants must submit the following: (g) For producers: (D) Proof of a legal source of water as evidenced by: (i) A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resources Department; (ii) 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 (iii) Proof from the Oregon Water Resources Department that the water to be used for production is from a source that does not require a water right. 690-008-0001 Definitions and Policy Statements (11) "Wasteful Use (of ground water)" means any artificial discharge or withdrawn of ground water from an aquifer that is not put to a beneficial use described in a permit or water right, including leakage from one aquifer to another aquifer within a well bore. OAR 690-300-0010 Definitions (6) "Commercial Water Use" means use of water related to the production, sale or delivery of goods, services or commodities by a public or private entity. These uses include, but are not limited to, construction, operation and maintenance of commercial facilities. Examples of commercial facilities include, but are not limited to, an office, resort, recreational facility, motel, hotel, gas station, kennel, store, medical facility, and veterinary hospital. Examples of water uses in such facilities include, but are not limited to, human consumption, sanitation, food processing, and fire protection. Such uses shall not include irrigation or landscape maintenance of more than 1/2 acre. Notwithstanding this definition, exempt commercial water use under Division 340 does not include irrigation or landscape maintenance. (26) ''Irrigation" means the artificial application of water to crops or plants by controlled means to promote growth or nourish crops or plants. Examples of these uses include, but are not limited to, watering of an agricultural crop, commercial garden, tree farm, orchard, park, golf course, play field or vineyard and alkali abatement. (29) "Municipal Water Use" means the delivery and usc of water through the water service system of a municipal corporation for all water uses usual and ordinary to such systems. Examples of these water uses shall include but are not limited to domestic water use, irrigation of lawns and gardens, commercial water use, industrial water use, fire protection, irrigation and other water uses in park and recreation facilities, and street washing. Such uses shall not include generation of hydroelectric power. (40) "Quasi -Municipal Water Use" means the delivery and use of water through the water service system of a corporation other than a public corporation created for the purpose of operating a water supply system, for those uses usual and ordinary to municipal water use, or a federally recognized Indian tribe that operates a water supply system for uses usual and ordinary to a municipal water use. A quasi -municipal water right shall not be granted the statutory municipal preferences given to a municipality under ORS 537.190(2), 537.230(1), 537.352, 537.410(2), 540.510(3), 540.610(2), (3), or those preferences over minimum streain flows designated in a basin program. From: "iohnshortusa.com" <iohnshortusa.corn> Subject: Water Rights Date: January 3, 2018 at 1:17:25 PM PST To: tonvca,deschutes.ora Tony, Some hopefully helpful attachments. From our conversation, anyone with a water right must use the water to Beneficial Use without Waste (leaky canals). The way I read Oregon's laws, any water right holder (private or irrigation district) has to eliminate leakage or risk cancellation of their water right. Simply look at the definition of Wasteful Use attached OAR 690-008-0001(11). As to cannabis: Attached definitions: OAR 690-300-0010(26) (26) "Irrigation" means the artificial application of water to crops or plants by controlled means to promote growth or nourish crops or plants. Examples of these uses include, but are not limited to, watering of an agricultural crop, commercial garden, tree farm, orchard, park, golf course, play field or vineyard and alkali abatement. OAR 690-300-0010(29&40) (29) "Municipal Water Use" means the delivery and use of water through the water service system of a municipal corporation for all water uses usual and ordinary to such systems. Examples of these water uses shall include but are not limited to domestic water use, irrigation of lawns and gardens, commercial water use, industrial water use, Dire protection, irrigation and other water uses in park and recreation facilities, and street washing. Such uses shall not include generation of hydroelectric power. (40) "Quasi -Municipal Water Use" means the delivery and use of water through the water service system of a corporation other than a public corporation created for the purpose of operating a water supply system, for those uses usual and ordinary to municipal water use, or a federally recognized Indian tribe that operates a water supply system for uses usual and ordinary to a municipal water use. A quasi -municipal water right shall not be granted the statutory municipal preferences given to a municipality under ORS 537.190(2), 537.230(1), 537.352, 537.410(2), 540.510(3), 540.610(2), (3), or those preferences over minimum streamflows designated in a basin program. Just browsing the attached few pages of definitions probably puts many arguments to bed. On amounts of water used, your neighbor Jeremy purchased just over 2 acres of irrigation for his entire projected grow. Compared to hay, most large cannabis operations have been asking for about 5,000 gallons per day (3.5 gallons per minute) or about the equivalent of one lawn sprinkler. In comparison, since large grows have typically been on at least 40 acres, those same 40 acre properties take about 225 gallons per minute to grow hay. Hope this helps. Thank you for your service. ati 1 B 1 Chris Baker Tumalo Organix 20420 Harper Road Bend, OR 97703 July 18, 2017 RE: Tumalo Organix odor and noise per Deschutes County Code DCC 18.116.330 Chris, With respect to odor control methods and sound pressure levels at your cannabis growing facility at 20420 Harper Road, Bend, OR 97703, located within Deschutes County: Odor The Deschutes County code DCC 18.116.330(B)(10) reads: Odor. As used in DCC 18.116.330(8)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably Interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor Impacts are authorized, If at all, as provided in applicable state statute. d. The odor control system shall: 1. 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 li. 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. You have Indicated that you plan to utilize carbon filtration technology for odor control; pursuant to O. above. The proposed grow design consists of an existing structure portioned out for the growing process. Two sealed flower rooms will open via a door to the vegetation room, a dry room will also feed Into the vegetation room. These rooms will have no exhausting air as the flower rooms will be enriched with CO2. The vegetation room will be accessed from within a larger containing structure. Additionally, a trimming COLEBREIT ■ N 1 1 N■■■ 1 N 1 room will be added in the northeast corner of the existing structure and will be accessed by the exterior of the building. The volumes of the vegetation room and trimming room are approximately 2460 cubic feet and 1,152 cubic feet respectively. The vegetation room requires 720 CFM of filtered air, and the trimming room requires 384 CFM of filtered air to successfully mitigate odor in compliance with DCC 18.116.330(B)(10)(d)(1). The installation of a Can -Fan 8" in HO inline -fan with an attached Can -Filter 8" carbon filter, or similar in the vegetation room will successfully condition the air within the space. The installation of a Can -Fan RS 6" In HO with an attached Can -Filter 6", or similar in the trimming room will mitigate the odor that could potentially leak out of the exterior door when open. As no air will be exhausted from the flower rooms or dry room, the conditioning of the vegetation room and trimming room will treat all escapable air. Providing odor control via carbon filtration connected to an Inline fan, as described above, will prevent unreasonable Interference of neighbors' use and enjoyment of their property. Noise The Deschutes County code DCC 18.116.330(8)(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 Zine 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 verbiage above. A 4 -ton heat pump LG model L4H48W07151818, or similar will provide heating and cooling to the growing process and will be located on the north side of the structure. The proposed outdoor unit has a sound level rating of 56 dB. The heat pump will be approximately 68' from the nearest northern property line, 245' from the nearest west property line, and 90' from the nearest east property line. A pitched roof will act as a sound barrier in the northern direction that will dampen the noise contributed by the equipment to approximately 2dB. The heat pump should be oriented so that the inlet and outlet fan are facing west. The noise contributing to ambient noise at the nearest west property line will be approximately 10.2 dB and the contributed noise at the nearest east property line will be approximately 19.1 dB. The structure will shield the noise at the southern property line. It is our opinion that since the mechanical equipment exterior to the building will operate intermittently upon call for cooling or heating, that the property will comply with DCC 18,116.330(B)(11)(a). Hest Regards, Laura 1, Breit, P,E, ColeBrelt Engineering COLEBREIT ■ M• 1 M■•• 1 M• Aspen Lakes Utility Co., LLC 16900 Aspen Lakes Dr., Sisters, OR 97759 541-549-3660 January 3, 2018 Chris Baker Tumalo Organ ix 20420 Harper Rd Bend, OR 97703 Dear Chris, Aspen Lakes Utility Co., LLC is a limited liability company registered in the State of Oregon. Aspen Lakes Utility Co., LLC has a quasi -municipal water right, which it utilizes to provide water for the Aspen Lakes Golf Course, homeowners within the development and any private companies or individuals it chooses to sell to. In response to your inquiry, please be advised that Aspen Lakes Utility Co., LLC is willing and able to provide water to the marijuana production facility proposed to be located at 20420 Harper Rd in Deschutes County, Oregon. Aspen Lakes Utility Co., LLC has reviewed the attached OLCC application form and proposal for an indoor marijuana production facility, which shall take place in one veg room (12x28), two Bower rooms (12x24 each) and a drying room (10x16) for a total square footage of 1,060. Aspen Lakes Utility Co., LLC understands that thc entire facility will contain approximately 1,060 square feet of space and that approximately 90 gallons of water per day is necessary for this size of marijuana cultivation. Based on the above information for the subject indoor marijuana production facility, Aspen Lakes Utility Co., LLC has determined that it has more than enough capacity to provide water to said facility, Accordingly, Aspen Lakes Utility Co., LLC is willing and able to provide this operation with all of its water needs for as long as necessary. Regards, Mau Cyrus, Manager Member Aspen Lakes Utility Co,, LLC 4820-7091-6940, IL 1 goitt‘ Urve, Va* • It1141.4. 4011•11911111. "(49-`•"' t\\ 1>c‘t 111.1 L. 11 4,11411 41111 bilk 1 1 111.6,1, 111411, 1 1, 1 1 , 11141,466,1,110 44 ith.6dkli 141, ,21 -La in..., 4,1111111,",, 1 n .“..1 164 H2311/9/dleal Staff Memorandum Attachment 2 Rebuttal Testimony received 1/3/18 — 1/10/18 *** Appellant's Written Rebuttal dated 1/10/18 Applicant's Written Rebuttal dated 1/10/18 Cynthia Smidt From: Ed Fitch <ed@fitchlawgroup.com> Sent: Wednesday, January 10, 2018 9:41 AM To: Cynthia Smidt Cc: nunzie@pacifier.com Subject: Baker application/appeal Attachments: SKM_C224e18011010450.pdf Cynthia Please see the attached response to the applicant's submittal. Thanks Edward P. Fitch Attorney 210 SW 5th St., Suite 2 Redmond, OR 97756 541-316-1588 541 316-1943 fax ed(fitchlawgrouo.com www.fitchlawgroup.com CONFIDENTIALITY NOTICE: This email transmission, and any documents, files or previous email messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please notify us be reply at infoc fitchlawgroup.com or by telephone at 541 316-1588, and destroy the original transmission and its attachments without reading them or saving them to a disk. 1 Fitch Law Group, PC "Commitred to Excellence" January 10, 2018 Cynthia Smidt Association Planner Deschutes County Planning Dept. 117 NW Lafayette Avenue PO I3ox 6055 Bend, OR 97708-6005 Re: File No. 247 -17 -000645 -CU Cynthia: EI)WARD P. l'ITCH ed ulitc111HInl)(11) sA,111 Patricia Jam: Itithert Paralegal pairicia On January 3Michael Hughes submitted six items of information regarding the I3aker Marijuana Application File No. 247 -17 -000645 -CU. The materials submitted did not establish any basis for approval of this application. The application must be denied for the following reasons: 1) The applicant docs not have an appropriate water right for the marijuana application. There is nothing in the record which would show that they have a right to use the ground water for marijuana processing. The existing permit only allows for orchard grass production on specified pasture areas on the Baker property. 2) Attached as Exhibit A is a circular from the Water Resources Department. It is clear from the Water Resources Department's perspective that municipal or quasi -municipal water cannot be used to promote plant growth for cultivation. It can only be used for processing marijuana. In fact, there is a notation on page 2 of the flier that groundwater is not available for the growth of marijuana. This would be consistent with the definition for the quasi -municipal use of water as previously alluded to. ]n those definitions, irrigation would be limited to lawns and gardens. It could be used for commercial investor use but plan growth does not fall within that definition. 3) The applicant has failed to address the prohibition in the Deschutes County Code regarding the combination of uses on the same subject property. As noted before, commercial uses in a MVA -10 zone cannot be combined with a marijuana growth operation pursuant to the Deschutes County Code. The application must be denied because this proposal combines two incompatible uses under the Deschutes County Code, 4) The application has not established any reasonable basis for an exemption to the 100 feet 210 SW 5' Street, Suite 2 ; Redmond OR 97756 l'hone: 541 316 1588 1 Fa N• 541 3l() 1943 F Fitch Law Group, PC "Committed ro Excellence January 10, 2018 Page 2 set back. As noted, this property is much less than 100 feet from the public lands to the north. Those public lands can be accessed by anyone including minors right up to the property line. The 100 feet setback is in there for a good reason; to provide a minimum buffer between a marijuana operation and adjacent properties including public lands. In fact, most public lands including national monuments and state parks have a 1,000 feet setback requirement. "fhe 100 feet setback from similar public lands under the jurisdiction of the Bureau of Land Management should not be compromised. Thank you. Very truly yours, EDWARD P. FITCH LPF:pjr cc: Client G \Clients\ PP\Gould, Annunznna\GouId, Annunzaata LU\Sinidt lir 010918.wpd Understanding Wates Medical and Recrea -Use Regulations Tonal Marijuana. Marijuana-rclated \\ ater use is subject to the same water -use regulations as any other ccl err,p. Under the Oregon Water Code of 1909. all water belongs to the public. With a . users must obtain a water right from the \Vater Resources I)cpartnlent to use voter from any'1OUFCc vhclher it is underground. or from lakes or streams. Generally speaking. landowners \with water flowing past. through, or under thril property do not automatically have the right to use that water \without authorization from the Department. S('S. and Other \Valet' New \water perillits are not ayailal>le is) n)<lny arras of Oregon. so inclividu<lls ire water -resources options before investing in a project that requires a water suppl` result 01 civil penalties Or prosecution for a class 13 misdemeanor. 'u), 111 identilj your legal water resource.; 03111ons mations yott can contact the 1)cpart111rn1 111 .03..98 k '1511 our wehsil 'What are the water -use authorization options:' right n)av already he associated with Your property; however. y( valid. and that it can he used for your purposes. Similarly_ water may be obtained from a water purveyor such as a cit\ or a water district that delivers water under an existing water right. ?. If available. \water may he acquired by obtaining a ne\\ water -right permit for sur race w ate) or szroutld\r,aler. 5 f Oregon \Viler laws age). l or Ill Certain water uses are authorized tllrou,Il ()segs about exempt uses is pro\ ided below. (`heck w p101111 to obtain \valet- 851 p1' 110111 the need for 0 water sight. Mone inlurnu 150.1' to make sure your 1)5e (111011 a ne\\ right to surface 11 iICl or groundwater. 10 some eases. \\'lttl 11Cpt1rtlnCnt al)j)rttyal. a \water rlgl)t 12"t�ti) <n}t\isles' lirt)perty can he transferred to a new parcel. or tilurcd water that is captured diming the winter and spring Can help provide a supply. Talk to your walernrrster about options. What else should you know about the use of your water right'' Once you ha\11 a \water right. make sure that you comply \\ ith the conditions on the right. It is always 0 loud idea to check with your \valet -master 10 understand the conditions. \Vater rights are issued for a particular place of use. type of 0511. and po1111 ofdiwcrsion. \\rater rights also have limits on the amount of wafer that can be used. and may include limitations on the season of use. Your \waternlaster can help you to understand the terms of use on your water right. If you want 10 change how the water is being used (fur example. from field irrigation to a greenhouse). check with your \\ aternlastcr to make sure that the change fits within \ our existing \4 i.11er ri`,ht. !n .rune instances \loll may nerd to obtain approval from the Department through a process called a transfer. In addition. there may be Bunts on the months that the \\ stet can he used. Water rights ma) he subject to forfeiture ifnot used for five co11Secuti\11 years. 111 addition. there may he times where there is not enough water 1i}r ever) water 05111 sIlo hull; a \\ titer right. In 1111)115 of shortage. (he se1101 1lScr Is entitled to receive all of his or her water. before 0 junior user. For example. 1 senior user N ith a priority (tate of 1910 can male a Call iur \rater. 11110 users with a junior date (alter 19 1(1 for this example) may be regulated 1 order to satisl5 that SCni(1f'rlsht. You should talk with your local \\aternlasler to understands how frequently regulation is likci\ to (lrrur. scl that you can plan your operations accordingly..\urw': l/l/1u tgh ('r)'url)f ,rnrnrchr 1(0• rr.11' Ju 1101 r'r(/rr/rr 0 /recut), th(' 1t-)-111)11/1' bC 111/9(1'! 10 r1'gll/a1/nu /ik1' tun' uth(v' Ira/Cr r•r•9hr ire 711r/c( uu/ 111rrtcv' r/rurv(i9('. How do 1 obtain a water right permit in the State of Oregon? Most \\ titer rights arc obtained in a lh)'ec-step process. The applicant first must apply to the Department for a permit lo use water. Once 0 permit is granted. 11111 applicant I1111S1 construct 0 water system Olid begin using water. Alter water is applied. the per11lit holder 111115) hire 0 certified w:I1er-right examiner 10 complete 0 survey of water sex' (a map and a report detailing how and \\ here water has been applied). It water has been used according to the provisions of the permit. the Department wilt issues water -right certificate. 10/09/2015 EXHIBIT PAGE LoF? 'What sources of water are exempt from the permitting process and how can the water be used? o Natural springs: Use of a spring that. under natural conditions, does not form a natural channel and flow MT the property where it originates at any time of the year is considered exempt front the need 10 obtain a water right. ('heck with \'otir \\'atermaster to determine it your spring qualifies for the exemption, o Rainwater: Collection and use of rainwater from an artificial impervious surface. such as a roof. is considered exempt 1`100€ needing a water -right. For more information. refer to ()RS 537.111. Check with your \\'aternlsler to make sure that your rainwater system is properly set up to meet this exemption. You may also need to cheek on local regulations with your county andror city. ® Exempt use of groundwater for non -irrigation -related commercial/industrial purposes: Under the exemption. up to 5.000 gallons per da) could he used for commercial or industrial use without a \Valor ri�ht. 'l ])is uc)ttld r€)ch€cic processing marijuana: however. this exemption Ilse.\' nu1_include water to promote plant growth/cultivation. e I?xcn►p1 use of groundNI ater for one-half acre of loin -commercial lawn and garden: Water for cultivation growth of marijuana. whether in a greenhouse or not. docs not require tt water right permit provided that the irrigation is 110 more than one-half acre in area ;IAD the cultivation is 111117 - commercial, Lye ul l7rnl/nthrert r 1u ,cull' marijuana /plants where there is intent tu!)ro/it (/o .4 not quali/l'fur a ,",owo/o'ater eseml)!ilol. Non- commercial includes homegr)wn recreational marijuana and medical marijuana for personal use. or where there is no intent to profit. Medical growers that seek to make a profit from medical or recreational marijuana arc 1101 cligihle 101111k cscn)ptiun. For example, an individual that grows marijuana and donates it to patients and dispensaries could quality lily the exemption. Conversely. an individual that gl'0\\and IS reimhulscd Iur the costs oldie production and Tabor intending to make money trnlrhl not quality. NOTE: This is not a complete /Let u/ cvee/ul)ti(ul,\', but rather lists (those most pertinent lo (/10 ,t;T(ril'th ('i/l(/ production r!/ marijuana. Like' ant' ('roll, the'. ,:,,rn)elh ofnlarijnani' lin. commercial /)all)1)Ses, ichet/ter medical of recreational, is 1/0/ elirih/e lin' groundwater exemptions. Can water be obtained from a federal water project? The federal l0lvc€mnrnl is responsible for detenniniu, \\helper \\e.ttet' i€om 1()e€t projcits e tt) he used io rc,\\ t))a€'iju: Previous statements by the federal government indicate that use of 1.3ureau of Reclamation \yaler for tl)c ptul)ose of growing marijuana i. prohibited. Contact the 13ureau of Reclaination or your irrigation district for n)orc inl'onuation. Who is my watern aster? UI,sn'ic l 1 1)1,11.4l 2 f)i,tricl 7 1)i.lrici -1 1)ioiiC€ 5 I)i.,u'irl n 1)iqrici 7 1 )i.1110 5 1)I>lrici 0 1)1>€ricl 10 1)i,iricl 11 1)ol'ici 12 1)i.,0ic1 17 f )i,u'i.l 14 1)i>u'ici 15 1)I41111 Iii 1)o.uirl 17 1)i,u'ir( IN 1)i,u'ic1 19 I)i>Iric'i 20 1)1..0r61 21 10/09/2015 503-N,15-1907 541-082.3020 541-500-2052 541-575-0l l9 541-27N-5450 541-903-1031 54 I -420-44o4 541-523-8224 541-473-51311 541-573-2591 541-306-0885 54I-047-00;8. 541-774-0880 5-11-470-2401 541-440-42.5 507-946-(11/9 541-553-4182 503-\40-77/10 541-396-1905 507-722-1410 5.11-384-4207 Istria 1 1 11 ' 1♦ 1 11 11 11 t. I It \ 111 t. 1t,, EXHIBIT.. PAGE jOF. BEFORE THE BOARD OF COMMISSIONERS DESCHUTES COUNTY File Number: 247-17-000645 Regarding the Land Use Application For OLCC Licensed Marijuana Production Applicant: Christopher Baker Location: 20420 Harper Road, Bend, Oregon 0 (1 APPLICANT'S MEMORANDUM IN RESPONSE TO APPELLANT'S SUPPLEMENTAL MEMEORANDUM PROCEDURAL HISTORY The applicant in the above entitled matter filed their land use application for a conditional use permit to engage in OLCC licensed marijuana production on August 1, 2017. Notice of the land use review was posted at property on August 9, 2017. The application was deemed complete on August 31, 2017. The decision to approve the conditional use permit was mailed on November 22, 2017. The appellant filed their notice to appeal the decision on December 4, 2017. The Appeal Hearing was held on December 27, 2017 at 10:00 a.m. at the regular session of the Deschutes County Board of Commissioners hearings. The 150 -day period was originally set to expire on January 28, 2W 8, but has been extended to allow additional filings. PROHIBITION The Appellant contends that both state law and Deschutes County regulations prevent anyone who conducts any commercially activity on their property, including commercial farm use, from engaging in marijuana production under license with the Oregon Liquor Control Commission. D.C.C. §18.116.330(20) is cited as authority for that proposition, which in the MUA-10 zones does prohibit "commercial activities in conjunction with farm use when carried on in conjunction with a marijuana crop." However, appellant does not cite well established Oregon case law regarding the meaning of "in conjunction with farm use", but instead cites Webster's dictionary. By doing so, their argument fails to properly analyze the phrase "in conjunction with farm use" and why we see this language in the current laws or regulations related to state licensed marijuana production. Also, it fails to make the important distinctions between "farm use", "agricultural use" and "commercial use" under the County Code. It is especially important to understand how Deschutes County defines these terms under the zoning ordinance. Under DCC Chapter 18.04.030, the relevant terms are defined as follows: "Agricultural use" means any use of land, whether for profit or not, related to raising, harvesting and selling crops or by the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof not specifically covered elsewhere in the applicable zone. Agricultural use includes the preparation and storage of the products raised on such land for human and animal use and disposal by marketing or otherwise. Agricultural use also includes the propagation, cultivation, maintenance and harvesting of aquatic species. Agricultural use does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees. "Agri -tourism" means a commercial enterprise at a working farm or ranch that is incidental and subordinate to the existing farm use of the tract that promotes successful agriculture, generates supplemental income for the owner and complies with Oregon Statue and Rule. Any assembly of persons shall be for the purpose of taking part in agriculturally based operations or activities such as animal or crop care, picking fruits or vegetables, cooking or cleaning farm products, tasting farm products; or learning about farm or ranch operations. Agri -tourism does not include "commercial events or activities." Celebratory gatherings, weddings, parties, or similar uses are not agri- tourism. "Commercial use" means the use of land primarily for the retail sale of products or services, including offices. It does not include factories, warehouses, freight terminals or wholesale distribution centers. "Commercial event or activity" means any meeting, celebratory gathering, wedding, party, or similar uses consisting of any assembly of persons and the sale of goods or Page 2 of 18 services. It does not include agri- tourism. In DCC 18.16.042, a commercial event or activity shall be related to and supportive of agriculture. "Fann use" means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or by the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing animals, or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. "Farm use" includes the preparation, storage and disposal by marketing or otherwise of the products or by- products raised on such land for human or animal use. "Farm Use" also includes the current employment of the land for the primary purpose of obtaining a profit in money by stabling or training equines, including but not limited to, providing riding lessons, training clinics and schooling shows. "Farm use" also includes the propagation, cultivation, maintenance and harvesting of aquatic species and bird and animal species to the extent allowed by the rules adopted by the State Fish and Wildlife Commission. "Farm use" includes the on-site construction and maintenance of equipment and facilities used for the activities described above. "Farm use" does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined in ORS 215.203(3). Current employment of the land for farm use also includes those uses listed under ORS 215.203(2)(b). In the MUA-10 Zones, "agricultural uses" are permitted outright. D.D.C. 18.32.020(A). The applicant's property is in the MUA zone and their horse related activities would be considered an "agricultural use" and not a "commercial use" or a "commercial activity" under the Code. They could also be classified as a "horse event" and an outright permitted use under DCC 18.32.030(G). Thus, even under the appellant's argument, the applicant would not be engaging in "commercial activities" with their horse events as prohibited under DDC 18.116.330(20) and defined by the Code. Applicant concedes that the state and county have imposed some restrictions related to marijuana licensed operations and commercial activities. The Appellant correctly cited O.R.S. § 475B.370(2)(c) as prohibiting "commercial activity" "carried on in conjunction with a marijuana crop" under O.R.S. § 215.213(2)(c) and § 215.283.2(a). Page 3 of 18 The first statute cited allows as a permitted use "commercial activities that are in conjunction with farm use" on EFU land in counties that have adopted marginal land systems prior to 1993. O.R.S. § 215.213(2)(a). The second statute cited allows commercial activities that are "in conjunction with farm use" on EFU land in nonmariginal land counties. O.R.S. § 215.213(2)(a). This is a common permitted or conditional use in most county ordinances in lands zoned for farm use or agricultural use. It is a conditional use on MUA-10 properties in Deschutes County when the "commercial activity" sociated with a farm use occurring on the parcel where the commercial use is proposed". See D.C.C. 18.32.030(C). Furthermore, the statute cited is simply restricting commercial activities which are normally allowed when in conjunction with farm use, when the farm use is marijuana production and it occurs on EFU lands. O.R.S. § 475B.370(2)(c). Thus, the commercial activity has to be "carried on in conjunction" with the marijuana crop to be restricted. This would not restrict commercial activity related to other farm uses on a property that arc not marijuana related nor would it restrict any other farm or agricultural uses on the property. The statute cited is specific to EFU lands and thus not applicable here. However, because the phrase "commercial activities in conjunction with farm use" is found in the County Code related to conditional uses and prohibited activities associated with marijuana crops, it is important to understand the legal history of the phrase. This will further explain why the County Code and the state statutes cannot be interpreted in the way the Appellant is arguing and suggesting. This phrase and what it means was the subject of an Oregon Supreme Court ruling that held "the commercial activity must enhance the farming enterprises of the local agricultural Page 4 of 18 community to which the EFU land hosting that commercial activity relates." Craven v. Jackson County, 308 Or 281, 298 779 P.2d 1011 (1989). In Craven, the Oregon Supreme Court ruled that a winery was a commercial activity that was in conjunction with farin use. /d. The Court reasoned "the agricultural and commercial activities must occur together in the local community to satisfy the statute. Wine production will provide a local market outlet for grapes of other growers in the area, assisting their agricultural efforts. Hopefully, it will also make [the applicant's] efforts to transform a hayfield into a vineyard successful, thereby increasing both the intensity and value of agricultural products corning from the same acres. Both results fit into the policy of preserving farm land for farm use." Id. Similarly, a hops warehouse was ruled a commercial activity in conjunction with farm use. Earle v. McCarthy 28 Or. App. 541, 560 P.2d 665 (1977). Also, the Land Conservation and Development Commission concluded that a farm implement and irrigation equipment dealership qualified as a commercial activity in conjunction with farm use. Balin v. Klamath County, 3 LCDC 8, 19 (1979). In doing so, the LCDC stated the following: "Clearly the statute is not intended to allow the establishment of grocery stores and gas stations on agricultural lands solely because they are situated in a primarily agricultural area and serve primarily agricultural needs. However, it can and should be read to express a legislative judgment that commercial activities limited to providing products and services essential to the practice of agriculture directly to the surrounding agricultural businesses are sufficiently important to justify the resulting loss of agricultural land. The record shows that such an enterprise is proposed and is needed." (Emphasis added.) Id. The phrase was also addressed by the Oregon Land Use Board of Appeals in the City of Sandy v. Clackamas County case. LUBA No. 94-104. There, in 1994 an applicant sought a conditional use permit to engage in the sale of three-quarter ton or larger trucks, the sale of portable G VSIAW Page 5 of 18 storage buildings, the renting of trucks and rental of livestock, box, and other various trailers as a commercial activity in conjunction with farm use, Id. In 1992, the applicant was granted approval as a conditional use under the "in conjunction with farm use" provision of the relevant code for the sale of livestock and horse trailers, enclosed trailers for hauling nursery plants, flatbeds and tiltbeds for the transportation of equipment, and accessories for these trailers along with hitch and wiring installation. Id. LUBA refused to extend the "commercial activity in conjunction with farm use" to the 1994 application. The decision turned on the belief by LUBA that though some of the sales and rentals proposed would be for other farm uses in the area, there was also evidence that a large number of customers of the items and services would not be used for farm uses. M at 10. Ultimately, LUBA focused on whether the proposed use had a "connection to the 'essential practices of agriculture." Id. at 11. Thus, when the legislature passed O.R.S. § 475B.370(2)(c) in 2015 they intended to restrict marijuana farms from being allowed to engage in "commercial activities" that were used in connection with marijuana crops. This was because the legislature included marijuana as a crop for the purpose of "farm use", "farm", and "farming practice", as well as a "product" of farm use and agricultural activity. Id. at (1)(a)(b)(c)(d). Evidence that the legislature did not intend to restrict all commercial activity on the same property as state licensed marijuana production operations can be found in the fact that they did not specifically restrict many of the other uses permitted under O.R.S. § 215.213(1) on EFU lands used for marijuana production. Instead, the legislature only restricted new dwellings, farm stands, and commercial activity that were "in conjunction with a marijuana crop" under O.R.S. §215.213 and §215.283. Page 6 of 18 The legislature also could have outright prohibited any commercial activity whether or not it was related to marijuana production from occurring on the same property and they did not. Likewise, the legislature could have prohibited marijuana production on the same property as other fanning operations, but it did not. The legislatures intent with H.B. 3400 regarding marijuana production was to create a "craft" industry, where larger numbers of small and medium sized producers could compete in the market. The hope was that many already involved in the farming industry in Oregon could use this crop to diversify their operations and make them more profitable and efficient. This would allow Oregon farmers into the market and not restrict the market to large outside interests and investors. This is evidence by a frequently asked question to the OLCC regarding marijuana production: Q: I'm currently a vegetable farmer and want to be a recreational marijuana producer. Can I continue to grow my vegetable crops at the same property as my marijuana? A: Yes, but you will need to follow all of the OLCC producer rules for the licensed premises. hqp://ww,A.olev,on.vo /oleciniiirijuanail'a2011. At)s-I :2-Producer,:ism Next, it will be important to analyze whether the County has restricted all commercial activities related farm use on properties where marijuana production has occurred as the Appellant contends. Unlike the legislature, the County has restricted specific uses on the same property under their ordinance. These are uses that are normally a permitted on EFU and conditional uses on MUA-10 zones. Yet, when used "on the same property" they are prohibited. These uses include guest lodges, guest ranches, dude ranches, destination resorts, public parks, private parks, events, mass gatherings and outdoor mass gatherings, bed and breakfasts, and room and board arrangement. D.C.C. 18.116(20)(c). This shows a clear intent by the County to prohibit certain Page 7 of 18 uses on the same property as marijuana production operations. It also illustrates that if the County had intended to prohibit either all commercial activities or other farm or agricultural uses on the same property as marijuana production operations they would have specifically done so. Instead, the County prohibited other uses not based on whether they were on the "same property as marijuana production", but based on whether they were used "in conjunction with a marijuana crop". In the EFU zones these prohibited uses included new dwellings, farm stands, commercial activity under O.R.S. §215.213(2)(c) and §215.283(2)(a) and Agri -tourism and other commercial events. D.C.C. 18.116(20)(a). It should be noted that this is identical to O.R.S. §475B370(2) except that it prohibits Agri -tourism and other commercial events in conjunction with a marijuana crop. The code provision in question here prohibits "commercial activities in conjunction with faiiu use when carried on in conjunction with a marijuana crop." D.C.C. 18.116(20)(b). Again, the term is "in conjunction with a marijuana crop". In order for the Appellant's argument to have any footing, the County's ordinance would need to prohibit the commercial activities "on the same property as marijuana production." When applying the well-established meaning of the phrase "commercial activities in conjunction with farm use" discussed above to the "in conjunction with a marijuana crop" it is clear this refers to activities that are essential to practices of marijuana agriculture and not just farm use in general. The intent is to prohibit service and sale commercial activities that are tied to the marijuana production. This would include activities like we see in wineries, including tours and tastings. It A Page 8 of 18 would also include educational seminars, lectures, table -to -farm programs, and other commercial activities that were related to cannabis or cannabis production. The Appellant made reference to minors possibly attending the horse events on the subject property. If the Applicant is approved by the County, they will have to present a comprehensive plan to the OLCC prior to licensing that details how they will prevent minors from accessing authorized personnel areas where cannabis is present. This is true whether a proposed applicant has minor children living on the property or minor children come to the property for other reasons. The Appellant has failed to prove that the Applicant's horse related activities constitute commercial activities in conjunction with a marijuana crop under state law or the county code. The Decision of County Staff to approve the land use review application properly addressed this and conditioned the approval on continued compliance with the restriction on commercial uses in conjunction with a marijuana crop. The applicant is currently not engaged in those activities and will not be in the future if the application is approved by the Board. IL WATER The Appellant has contended that the Applicant has not provided the required information regarding water under D.C.C. 18.116(B)(13)(1). However, the Applicant provided a copy of their water right permit in their application, as required by the ordinance. (See Exhibit B — Land Use Review Application No. 17 -000645 -CU). The relevant provision reads that the "applicant shall provide" a copy of a water right permit, certificate or other water use authorization from the Oregon Department of Water Resources." (Emphasis added.) Id. at 13(a). The permit provided is from the OWRD. It details that there are 9.73 acres of irrigation rights for the well on the Page 9 of 18 Applicant's property. It allows for the irrigation to be used for the beneficial use of the water without waste from March 1 through October 31 of each year. The OWRD treats water used for irrigating cannabis crops the same as other crops. See Response Memorandum Exhibit A - OWRD Water Use and Marijuana Handout. The water right permit submitted with the application satisfies the requirements of the code to prove a water source for seasonal production. The Appellant first claimed that the permit provided was not in the record, despite the fact that it is. Then the Appellant contends without citations or proof, that the permit submitted was not sufficient to satisfy the code requirements. Again, they do not point to any applicable statute to prove their assertion. They have provided no proof from the OWRD that the water right permit that was submitted is not valid. They have not provided testimony from the local water master indicating that the Applicant's water right permit is invalid or that the Applicant is not using their water right correctly. Instead, the Appellant makes an assertion that is not supported by the law or the facts. As such, the Appellant's argument should fail. The Applicant has provided sufficient proof of a water rights permit so as to satisfy the Code. Next, the Appellant contends that the Applicant did not provide a "statement from" a public or private water provider. However, the Appellant is misreading the ordinance. Unlike water rights permits and certificates which must originally come from the OWRD, it is the Applicant who is required to provide "a statement that the water is supplied from a public or private water provider, along with the name and contact information of the water provider". D.C.C. 18.116(B)(13)(b). In their original application, the Applicant provided a will -serve letter from a water hauler indicating they would haul "an estimated 4000 gallons of water each month" to be Page 10 of 18 used for cannabis production. (Sce Exhibit C - Land Use Review Application No. 17 -000645 - CU). This is a statement that water is being provided by a private water provider. The name of the company and their contact information is on the invoice. This meets the requirements of the ordinance, The Appellant also contends that the Applicant failed provide information related to DCC 18.116(B)(13)(C). This is correct, as this section was not applicable to the water that was being proposed in the application. Finally, the Appellant asserts that using hauled water in "off -irrigation season" as proposed in the application was prohibited. The Appellant cited not legal authority in the form of case law, statute or regulations for this position. They did assert that the "Board" had addressed this issue in the "past", which presumably means the Appellant was citing the Board's previous decisions as legal precedent for holding water hauling ibr cannabis to be illegal. However, this argument does not take into account a recent decision by the Board in File Number 247-17-00803-A, Evolution Concepts, LLC. See Response Memorandum Exhibit B - Decision of the Board of County Commissioner for Deschutes County, File no. 247-17-000803- A. In that decision, the Board discussed the issue water hauling. Id. at 7-8. The Board was unaware any "conclusive guidance" regarding the issue of hauling municipal or quasi municipal water for marijuana production. Id. The Board cited to a previous decision in which they "determined that a water hauling company is a 'public or private water provider" for the purposes of DCC 18.116.330(B)(13)(b). Thus, the Appellant's assertion that water hauling as proposed is prohibited and that the Board has ruled so in the past is not accurate. Page 11 of 18 Also, the Applicant submitted materials last week for the Board's consideration. One of the documents submitted was an email from John Short to Commissioner DeBone. See Response Memorandum Exhibit C — Email from John Short to Commissioner DeBone. Mr. Short is a well- respected water rights specialist throughout the State of Oregon. In the letter, he discussed the issue of water use for municipal and quasi -municipal purposes. Id Mr. Short indicated that hauling municipal or quasi -municipal water from cannabis production was allowed. More importantly he addressed the issue of overall water usage for hay production and marijuana. He detailed that most "large grows" are requesting about 5,000 gallons per day, which he said was equivalent to running one lawn sprinkler for a day. M He also indicated that a 40 -acre hay pasture uses about 225 gallons of per minute. Id In 24 hours of watering, that pasture would use approximately 324,000 gallons. This, despite claims to the opposite, shows that cannabis is not a water intensive crop. This is true especially in comparison to the region's other main farm crop, hay. It is also true compared to other irrigated crops and produce. Cannabis production in Central Oregon can help current operators of farms with pasture, like the Applicant, create other revenue streams in their operations. This extra income can help reduce the need for heavy watering of pastures. h may allow some operators to reduce the pasture harvest to one cutting per year. It could also allow operators to reduce the number of livestock they graze on their land, which would reduce watering needs. Cannabis production could help reduce over all water use in the area. The Applicant has presented sufficient evidence that they have a water right permit to use their well water from March 1 to October 31. They have also given proof that they will get water Page 12 of 18 hauled to the property during the off-season, Also, the Applicant testified at the hearing that if their application is approved, they will apply for nursery rights with the OWRD for their well so that they can use it year around. They have met the requirements of the Code and the Staff detailed this compliance in their decision. III. EXCEPTION ("EXEMPTION IN APPELLANT'S MEMORANDUM) The Appellant uses the term "exemption" as it relates to the setback exception that the applicant applied for under DCC 18.116(B)(6)(c). The Applicant did request an exception to the rules as it relates to the 100 -foot distance from the lot line under DCC 18.116(B)(6)(a). As noted in the Decision approving this application and currently being appealed, the applicant's building was 58 feet from the east boundary and 55 feet from the north boundary. It was also noted in the Decision that the closest off-site dwelling was 500 feet from the proposed building. The Appellant focused on the fact that the property to the north of the Applicants is owned by the BLM and is public. However, the standards used to determine if a setback exception is allowed is not dependent upon who owns the adjacent property, but on the factors listed in the ordinance. The Staff addressed those in detail in their Findings on this issue. Additionally, the County did impose a separation distance of 1,000 feet from public or private elementary of secondary schools, licensed day care centers, youth activity centers, National monuments and state parks. DCC 18.116(B)(7). The County did not impose these restriction on federal or public owned land. Also, the Appellant seems to argue the standard to apply regarding the exception is whether it "makes sense" or there is "special reason" to grant the exception. Neither of those are the Page 13 of 18 standard used to analyze a request for an exception to a setback under the Code. The actual standard is that "any reduction to these setback requirements may be granted. provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts." DCC 18.116(B)(6)(c). The Applicant detailed how using the current building would provide greater or equal protection regarding site, sound, odor, privacy and access impacts. The Staff in their Decision also detailed how the applicant provide equal or greater protection to each of the above issues with a setback exception. The Appellant has not even offered any analysis with regard to the Staff's findings on these issues. The Appellant's only argument is that the Applicant should be required to put their operation in an area on the property that meets the required setbacks. This however fails to recognize that such a place would be in the middle of the pasture on the property. This area would not only be visible from the road, hut it would also actually be closer to several nearby off-site dwellings, though still over 300 feet from them. Putting a building in this area would potentially obstruct west views of the property owner directly to the east. Allowing the setback exception and use of the current building will provide greater protection in all aspects to all the properties that are actually near the proposed operation. The Staffs Findings on this issue should be upheld. IV. NOISE AND ODOR The Appellant contends regarding noise and odor that it is questionable whether or not the noise and odor can be mitigated within the 55 -foot setback. The basis for their argument regarding noise is that the Applicant had not suggested any horizontal screening and they have not done Page 14 of 18 onsite testing that the "outdoor HVAC system will have any buffer between the HVAC system and the property line". Though the verbiage used by the Appellant does not make sense, the Applicant understands the argument to suggest that because there are no "horizontal buffers" between the HVAC system and the property line, that noise levels will exceed those allowed. This argument is not supported by any sort of analysis by the Appellant or a mechanical engineer. The Applicant had to employ a mechanical engineer to satisfy the requirements of DCC 18.116(B)(11). The mechanical engineer's report specifically addressed the noise issue. (See Application Exhibit A — Odor and Noise Statement) This report specifically detailed the number of decibels the HVAC unit would generate. It also calculated what the noise level would be at the property lines, based on several factors. It concluded that the HVAC system would not generate more decibels at the property at anytime that would exceed 30dB(A). The actual requirement under the code is that there be no "sustained noise" related to marijuana production exceeding "30dB(A)" at any "property line" from "10:00 p.m. and 7:00 am". DCC 18.116(B)(11). The Staff Finding's in their Decision detail this information from the mechanical engineer as proof that the Applicant will meet the requirement. The Appellant has put forth no argument or evidence that would contradict that, and therefore the Staff's Finding on this issue should be adopted by the Board. With regard to odor, the Appellant simple states there is no specific details provided that the filtration system proposed will remain capable of eliminating odor from adjoining properties. Again, the Appellant make no further argument or analysis of why this is true. They provide no report from a mechanical engineer that makes this assertion. In doing so, they ignore a mechanical Page 15 of 18 engineers report that was filed with the application. (See Application Exhibit A — Odor and Noise Statement) Again, the Applicant hired a mechanical engineer to opine as to whether the proposed system would satisfy the requirement of the code. The report specifically details the sizes of the rooms proposed to be used. They used the calculations required under the ordinance to determine how many CFM the fans should be moving. See DCC 18.116(B)(10). It was specific to this operation and detailed how the carbon filter combined with the fans satisfied the code requirements. The Staff's decision on this issue detailed the report and how it satisfied the Code. This author is aware of increased scrutiny of the mechanical engineer reports in the applications for marijuana production. However, it seems that often people, including the Appellant in this matter, are demanding standards that have not been adopted by the county or the state. Under the Code, "an odor control system is deemed permitted only after the applicant submits a report by a mechanical enaineer licensed in the State of Oreton demonstrating that the system will control odor so as not to unreasonably interfere with neighborsuse and enjoyment of their property." (emphasis added) DCC 1 8.116(B)(10)(b). The Appellant here believes the odor control system may not be sufficient. The plain language of the Code in this regard simply does not allow an Appellant or a fact finder to substitute their judgment, belief or opinion of whether the odor control system is adequate or not in place of the expert opinion proffered by a mechanical engineer. Perhaps, an appellant could challenge whether the mechanical engineer sufficiently "demonstrated" in their report the ability of the system to control odor, however, their own opinion, or anyone else's who is not a mechanical engineer would not be sufficient to sustain such an argument. The Code's deems an odor control Page 16 of 18 system permitted after a report from a mechanical engineer demonstrating compliance is submitted. Id. Also, there have been many other land use review applications that have already been submitted and approved with similar or identically specific mechanical engineer reports as was submitted here. Changing that standard now, and allowing opinions of non-mechanical engineers to trump those of actual mechanical engineers would be improper, much like the issue of hauling water. In this case, the Appellant has not provided any evidence or argument that would negate the mechanical engineer's report regarding odor or that would question whether it sufficiently demonstrated the effectiveness of the proposed odor control system. It should also be noted that this small-scale grow is about l/7 of the entire building it will be inside. That building includes horse stalls, which generate a fair amount of odor themselves; likely more smell than the marijuana operation even without any filtration system used. With the odor control system proposed, the small size of the proposed production area, along with the smell of horse manure, it is very unlikely that any marijuana odor will be detected directly outside the building, but certainly not at the property lines. These are facts in addition to the mechanical engineer's report and the Staff Findings on this issue. V. CONDITIONAL USE AND FIRE DEPARMTENT REQUIREMENTS The Appellant addressed several issues in this argument. However, all of these issues were addressed by the Staff in their Decision. Their Decision detailed all the requirements for a Conditional Use and why the proposed use was congruent with the surrounding areas and their uses. That Decision also includes two pages of conditions for approval, including many that ;- • Page 17 of 18 address the issues raised by the Appellant. The Applicant will abide by all conditions of approval. The Staff's Decision was appropriate, supported by the facts, and should be adopted by the Board. VI. CONCLUSION The Appellant has not presented any facts, evidence, or arguments that would be sufficient so as to reverse the Staff s decision regarding this Conditional Use Permit application. The Staff's Decision details how the Applicant was compliant with all the requirements of the Code. The Decision appropriately analyzes the setback exception, applied the correct standards, and made the appropriate findings. The Applicant hopes their proposed use can transform a small part of their horse barn into a successful small-scale grow, thereby increasing both the intensity and value of agricultural products coming from the same acres. They believe these results fit into the policy of preserving farm land for farm use that is inherent in the County's Comprehensive Planning. The Application and the Decision by the Staff to approve it sufficiently address most concerns raised in this appeal. Both also provide adequate detail and information so as to be approved. The Applicant requests that the Board adopt the Staff's decision and approve the application. DATED: 10JAN2018 Respectfully Submitted, Michael R. Hughes, OSB #135942 Attorney for Applicant Page 18 of 18 Response Memorandum Exhibit A OWRD Water Use and Marijuana Handout Understanding Water -Use Regulations: Medical and Recreational Marijuana Marijuana -related water use is subject to the same water -use regulations as any other irrigated crop. Under the Oregon Water Code of 1909, all water belongs to the public. With a few exceptions, cities, irrigators, businesses, and other water users must obtain a water right from the Waler Resources Department to use water from any source — whether it is underground, or from lakes or streams. Generally speaking, landowners with water flowing past, through, or under their property do not automatically have the right to use that water without authorization from the Department. New water permits are not available in many areas of Oregon, so individuals are strongly encouraged to investigate their water -resources options before investing in a project that requires a water supply. Violations of Oregon Water laws can result in civil penalties or prosecution for a class 13 misdemeanor. The best way to identify your legal water resources options is to speak with your local watermaster (see next page). For more information, you can contact the Department at 503-986-0900, or visit our website at httn://www.oregon.gov/owrd. What are the water -use authorization options? 1. A water right may already be associated with your property; however, you will need to confirm that the right is still valid, and that it can be used for your purposes, Similarly, water may be obtained from a water purveyor such as a city or a water district that delivers water under an existing water right. 2. If available, water may be acquired by obtaining a new water -right permit for surthce water or groundwater. 3. Certain water uses are authorized through Oregon law as "exempt" from the need for a water right. More information about exempt uses is provided below. Check with your watermaster to make sure your use qualities. 4. There can be other options to obtain water aside from obtaining a new right to surface water or groundwater. In some cases, with Department approval, a water right fipm another property can be transferred to a new parcel, or stored water that is captured during the winter and spring can help provide a supply. Talk to your watermaster about options. What else should you know about the use of your water right? Once you have a water right, make sure that you comply with the conditions on the right. It is always a good idea to check with your watermaster to understand the conditions. Water rights are issued for a particular place of use, type of use, and point of diversion. Water rights also have limits on the amount of water that can be used, and may include limitations on the season of use. Your watermaster can help you to understand the terms of use on your water right. If you want to change how the water is being used (for example, from field irrigation to a greenhouse), check with your watermaster to make sure that the change fits within your existing water right. In some instances you may need to obtain approval from the Department through a process called a transfer. In addition, there may be limits on the months that the water can be used. Water rights may be subject to forfeiture if not used for five consecutive years. In addition, there may be times where there is not enough water Ibr every water user who holds a water right. In times of shortage, the senior user is entitled to receive all of his or her water, before a junior user. For example, a senior user with a priority date of 1910 can make a call for water, and users with a junior date (after 1910 for this example) may be regulated off in order to satisfy that senior right. You should talk with your local watermaster to understand how -frequently regulation is likely to occur, so that you can plan your operations accordingly. Note: Although exempt groundwater uses do not require a permit, the well may be subject lo regulation like any other water right in times ofwnter shortage. How do I obtain a water right permit in the State of Oregon? Most water rights are obtained in a three-step process. The applicant first must apply to the Department for a permit to use water. Once a permit is granted, the applicant must construct a water system and begin using water. After water is applied, the permit holder must hire a certified water -right examiner to complete a survey of water use (a map and a report detailing how and where water has been applied). If water has been used according to the provisions of the permit, the Department will issue a water -right certificate,. 10/09/2015 What sources of water are exempt from the permitting process and how can the water be used? • Natural springs: Use of a spring that, under natural conditions, does not form a natural channel and flow off the property where it originates at any time of the year is considered exempt. from the need to obtain a water right. Check with your watermaster to determine if your spring qualifies for the exemption. • Rainwater: Collection and use of rainwater from an artificial impervious surface, such as a roof, is considered exempt from needing a water -right. For more iuformalion, refer to ORS 537.141. Check with your watermaster to make sure that your rainwater system is properly set up to meet this exemption, You may also need to check on local regulations with your county and/or city. • Exempt use of groundwater for nun -irrigation -related commercial/industrial purposes: Under the exemption, up to 5,000 gallons per day could be used fir commercial or industrial use without a water right, 'Phis would include processing marijuana; however, this exemption c/oe.s not include water to promote plant growth/cultivation. • Exempt use of groundwater for one-half acre of non-commercial lawn and garden: \Vater for cultivation/growth of marijuana, whether in a greenhouse or not, does not require a water right permit provided that the irrigation is no more than one-half acre in area ANL) the cultivation is non- commercial. Use (?/ R1 )1117d00/I0/ to gni, marijuana p/alu.s' we're there is intent 10 profit sloes not qualify lbr 0 groundwater exemption. Non- commercial includes homegrown recreational marijuana and medical marijuana for personal use, or where there is no intent to profit. Medical growers that seek to make a profit from medical or recreational marijuana are not eligible for this exemption. I -'or example, an individual that grows marijuana and donates it to patients and dispensaries could qualify for the exemption. Conversely, an individual that grows marijuana. and is reimbursed for the costs of the production and labor — intending to make money — would not qualify. NOTE: This is n01 a complete list o/exemptiolrs, but rather lists those most pertinent 10 the growth and production of marijuana. Like any crop, the growth of•n7Clrijmina fol' commercial purposes, whether medial! of recreational, 1.5 Dol c /i�,rihlc ,fur groundwater exemptions. Can water be obtained from a federal water project? The federal government is responsible for determining whether water from their projects can he used to grow marijuana. Previous statements by the federal government indicate that use of Bureau of Reclamation water for the purpose of growing marijuana is prohibited. Contact the Bureau of Reclamation or your irrigation district for more information. Who is my watermaster? District 1 District 2 District 3 District 4 District 5 District 6 District 7 District 8 District 9 District 10 District 11 District 12 District 13 District 14 District 15 District 16 District 17 District 18 District 19 District 20 Disiriet 21 1©/09/2015 Nikki 1lendricl:s (Michael h-lattick Robert Wood 1.1rie.lulsruil (3ree Silhernaacl Sha d Italian David Bales Rick Lusk Roll Jscobti JR .lohnson Jeremy Brian Maven Travis Kelly Kathy Smith Susm 1)oulhit Joel Mahn Scott White Jake ( onslans (.trot Wacker Amy Kitt Ken Thiel -mum 503-815-1907 541-082-3620 541-500-2653 541-575-0119 541-278-5456 541-963-1031 541-420-4464 541-523-8224 541-473-5130 541-573-2591 541-306-6885 541-947-6038 541-774-6880 541-479-2401 541-440-4255 5(13-986-0889 541-883-4182 503-846-7780 541-396-1905 503-722-1410 541-384-4207 Map of Watermaster Districts R 7 H i A I Ill K,1S K RC t.;1,t1\ ( ni iI 0-R Response Memorandum Exhibit B Decision of the Board of County Commissioners for Deschutes Coun File no. 247-17-000803-A For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: 247 -17 -000172 -AD, 247 -17 -000173 -SP, 247 -17 -000180 -AD (247- 17-000803-A) APPLICANT: Evolution Concepts, LLC 915 SW Rimrock Way, Suite 201 Redmond, Oregon 97756 APPLICANT'S Ellen Grover, Karnopp Petersen, LLP ATTORNEY: 360 SW Bond Street, Suite 400 Bend, OR 97702 PROPERTY ATP, LLC OWNER: 21330 Young Avenue Bend, Oregon 97701 APPELLANT: Wendie Every 1210 SW 519' Street Redmond, Oregon 97756 APPELLANT'S Ed Fitch, Fitch Law Group, PC ATTORNEY: 210 SW 5' Street, Suite 2 Redmond, OR 97756 PROPOSAL: The applicant is requesting approval of Administrative Determinations and Site Plan review to establish a marijuana production and processing facility in the Exclusive Farm Use (EFU) Zone. STAFF REVIEWER: Cynthia Smidt, Associate Planner ADMINISTRATIVE September 22, 2017 DECISION ISSUED: APPEAL FILED: September 29, 2017 OC -2017 773 HEARING DATES: RECORD CLOSED: Monday, October 30, 2017 Wednesday, November 8, 2017 Wednesday, December 8.2017 L SUMMARY OF DECISION: n this decision, the County Board of Commissioners ('Board") considers the appellant's appeal of the September 22.2O17administrative Findings & Decision (File Nos. 247'17'00O172'AD.247' 17'000173'GP.247-17'000180f\D.7\dminiatnntixwDocisinn^).TheBoapdexevoiaedNsdiscetion to hear the appeal de novo. The Boarreceived five Memoranda on the appeal; three were from Associate Planner Cynthia Smidt and two from Senior Transportation Planner Peter Russell. The three provided by Ms. Smidt include one dated October 24, 2017 ("Pre -Hearing Memo") that identified and summarized the key issues in the Notice of Appeal, the findings made by the staff on those issues in the Administrative Decision or subsequent to it in preparation for Board deliberation, the applicable evidence be in the recond, and the arguments of the applicant and the appellants. The second staif memo was dated November 2, 2017 detailed testimony given at the initial public hearing in preparation for the continued public hearing. The final staff memo by Mn. Smidt was dated December 13, 2017 provided summary of all testimony received and a key decision matrix for the Board to utilize during deliberations. Peter Russell provided two staff memos doted November 15, 2017 and November 29, 2017 responding to the transportation related items submitted as part of the appeal materials. The Board's Decision in this appeal will refer to and incorporate the Administrative Decision and summary of issues in the Staff Memoranda. On December 18, following deliberation, the Board indicated an intention to vote 2-1 to overturn the Administrative Decision approving the land use permits to establish a recreational marijuana production and processing facility onthe subject property and directed staff tndraft efina|decision. On December 27, the Board determined the proposal did not comply with the applicable review criteria and standards of the Deschutes County Zoning Ordinance and voted 2-1 to overturn the approval of the apphcation. APPLICABLE STANDARDS AND CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.16. Exctusive Farm Use Zone Chapter 18.84, Landscape Management Combining Zone Chapter 18.124. Site PIan Review Chapter 18.116. Supplemental Provisions Title 22, Deschutes County Development Procedures Ordinance File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No 2017'773 Page 2of8 III. BASIC FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the September 22, 2017 administrative Findings & Decision (File 247 -17 -000172 -AD, 247 -17 -000173 -SP, and 247 -17 -000180 -AD) in Section II. Basic Findings, subsections A (Location), B (Lot of Record), C (Zoning), D (Site Description), E (Surrounding Land Use), F (Proposal) , G (Land Use History), H (Public Agency Comments), I (Public Comments), and J (Review Period), with the following addition: K. PROCEDURAL HISTORY: This application was Submitted on March 16, 2017 and was deemed incomplete on April 14, 2017. The applicant submitted additional information and the application was deemed complete and accepted for review on June 12, 2017. An Administrative Determination and Site Plan review, which conditionally approved the application, was issued September 22, 2017. An appeal from the appellant was timely filed during the 12 -day appeal period on September 29, 2017. The Board used their discretion to "call up" the appellant's appeal to be heard de novo in the Board's Order 2017-040 dated October 4, 2017. Two public hearings were held, the initial hearing on October 30, 2017 and the continued hearing on November 8, 2017. The appellant was represented by Ed Fitch, Attorney at Law. The applicant, Evolution Concepts, LLC (Jacob Jenkins) was represented by Ellen Grover, Attorney at Law. The Board heard testimony and established an open tecord period of 28 days. The record closed on December 6, 2017. The Board conducted deliberations at their regular Business Meeting on December 18, 2017, The Board found the proposal did not comply with the applicable review criteria and indicated an intention to vote 2-1 to overturn the Administrative Decision approving the application. On December 27, the Board determined the proposal does not comply with the applicable review criteria and standards of the Deschutes County Zoning Ordinance and voted 2-1 to overturn the approval of the application. IV. CONCLUSIONARY FINDINGS The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions contained in the September 22, 2017 administrative Findings & Decision (File Nos. 247 -17 -000172 -AD, 247 -17 -000173 -SP, and 247 -17 -000180 -AD) in Section III. Conclusionary Findings, except for the findings relating to the DCC Sections identified below. To the extent there are conflicts between any of the findings identified above and the findings below, the findings and conclusions below shall control. A. DCC 18.124.060(A), Approval Criteria. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No. 2017-773 Page 3 of 8 FINDING: The proposed marijuana processing, located in an existing agricuitural building, is subject to site plan review. The Board acknowledges that the purpose of the site plan review is to "promote functional, safe, innovative and attractive site development compatible with the natural and man-made environment" (emphasis added). Among eleven standards for approval, a site plan includes review of whether the proposed development shall relate harmoniously to the natural enviroriment and existino develooment (emphasis added). Two Board members were concerned over the impacts of the proposed development will have on the surrounding natural and man-made environment. Specifically, the Board finds that the application for the processing facility does not relate harmoniously to existing development in the area. The record demonstrates that this area is adjacent to the Urban Reserve Boundary of the City of Redmond. It is an area that one coutd reasonably anticipate, in the future, to be included within the urban area as residential neighborhoods. The properties around this facility are generally small, rural residential acreages. None of these small agricultural oporotinno, nor the existing residential development to the east of the subject proporty, has any similar physical characteristics to the site plan submitted by the applicant for a processing facility. For example, the surrounding developments donot have niAn/fioantHVAC systems tothe same extent euthe proposed faciilty, nor do they generate the same significant traffic. The cumulative effect of this site plan in terms of traffic, access to Highway 126, and the characteristics of the bui)ding, differentiate it from other facilities nearby. Collectively these attributes lead the Board to find that this processing facility will not relate harmoniously to the existing development in the area. B. DCC 18.16.025(1)(2): A processing facility or establishment must comply with all applicable siting standards but the standards shall not be applied in a manner that prohibits the siting of the processing facility. FINDING: The Board finds that the processing faci|hy, as proposed cannot comply with all applicable siting standards identified in this decision and that these applicable standards have not been be applied in a manner that prohibits the siting of the processing facility. DCC 18.16.025(1)(2) prohibits the erroneous 000|ioation of a siting standards in a particular case, but does not otherwise exempt or vary the aoolicabilitv of siting standards generally. Numerous provisions within DCC Chapter 18.124 clearly contemplate that approval of a site plan is conditioned on meeting specified criteria. Citing ORS 215.283(1)Nand case law, the Applicant's Response to Opponents' Supplement b the Record submitted on December 6, 2017. argues that ]b]ecmuse marijuana processing is a 'subsection 1' use that is permitted outright in exclusive farm use zones, the standards cannot apply to the facility 'in a manner that prohibits siting of the processing facility." Rather than arguing that the application of the siting standards are somehow erroneous is this case, it instead appears that the applicant is arguing that not all of the siting standards codified in the DCC Chapter 18.124 as elsewhere necessarily apply, By incuding such an argument chaltenging the siting standards File Nos. 2^z17-00V172.4D/247'17'VOO173-3P/247'17-00OmO+\D(2wz17-00nu03-A) Document No. 2017-773 Page 4 of 8 applicability, it also appears that the applicant is arguably conceding that the processing facility does not meet all such siting standards, The Board finds, however, that all siting standards codified in DCC 18.124 and elsewhere apply to this proposed processing facility, and that there is no evidence in the record indicating that those siting standards have been erroneously applied. Further, ORS 4756.340 specifically authorizes the County to adopt "reasonable regulations" that include "reasonable conditions on the manner in which a marijuana processor ... may process marijuana." Thereby, ORS 4756.340 adds an additional statutory layer to existing statutes and case law governing "subsection 1" uses in exclusive farm use zones. Elsewhere in the Applicant's Response to Opponents' Supplement to the Record, the applicant argues that pursuant to applicable state law and Deschutes County Code provisions, the County is obligated "to allow marijuana processing in exclusive farm use zones if subject facilities can comply with siting standards." The Board agrees with the aforementioned statement, and likewise agrees with the implied contrapositive of that statement — "if a subject marijuana processing facility cannot comply with siting standards, the County is not obligated to allow that facility in an exclusive farm use zone." C. DCC 18.116.330(8)(10): Odor. As used in DCC 18.116.330(8)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the 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. File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No. 2017-773 Page 5 of 8 e. The system shall be maintained in working order and shall be in use. FINDING: The record contains two letters from Mechanical Engineer Jay Castino addressing the mitigation of odor for the property. The initial letter submitted with the application (dated May 8, 2017) and a revised letter (dated November 14, 2017). Although one Board member found the applicant could meet the criteria with an ongoing condition of approval, two Board members disagreed and found that the applicant did not provide enough specificity regarding odor control measures. The two commissioners found that the information submitted by the applicant does not demonstrate an ongoing capability to insure odor emissions will not unreasonably interfere with neighbors' use and enjoyment of their property. D. DCC 18.116.330(B)(11): Noise. Noise produced by manjuana production and manjuana 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 record contains two letters from Mechanical Engineer Jay Castino addressing the proposed heating, cooling and venting system for the proposed use. One Board member found the applicant could meet the criteria with an ongoing condition of approval. However, two Board members disagreed. The two Board members expressed a desire for additional details specific to the proposal and the property, especially concerning controlling sustained mechanical noise from the heating and ventilation equipment. Between the time of the original application and the final submittal by the applicant, the engineering letter regarding noise went through a number of iterations. None of those iterations, however, included any site-specific information. Thereby, the information provided by the applicant for noise control was insufficient, Likewise, the appellants provided contrary information regarding the noise level from this operation at the adjoining property line. The Board finds that the applicant has not met its burden of demonstrating in a site-specific manner that sustained noise will not become a problem for this operation, relative to adjoining properties. E. DCC 18.116.330(B)(13) Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No. 2017-773 Page 6 of 8 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 record contains materials demonstrating the property will be served by Central Oregon Irrigation District during the irrigation season (April 1 through October 31). In addition, the applicant proposes using a water hauling company, ABC Lightning, LLC, during the off-season (November 1 through March 31). The applicant documented the approximate amount of water to be used during the off-season and indicated an explanation of how the water supply will be used. In the Opponent's Final Submittal and Argument dated November 29, 2017, the appellants noted that OAR 690-300-0010(29) defines "municipal water use" in part as "the delivery and use of water through the water services systems of a municipal corporation for all water uses, usual and ordinary to such systems." Thereby, the appellants essentially argue that even if obtaining water from a municipal source, once ABC Lightning, LLC hauls that water to the subject property it no longer meets the aforementioned "municipal water use" definition because the water is not being delivered through a water services system. The Applicant's Response to Opponents' Supplement to the Record submitted on December 6, 2017, appears to respond to that argument by clarifying that that applicant's "proposed water uses constitute authorized quasi -municipal uses." The applicant further quotes a portion of the "quasi- municipal water use" definition found in OAR 690-300-0010(40). However, the applicant neglects to quote the same verbiage in the "quasi -municipal water use" definition that the appellants noted in the "municipal water use" definition, notably that both "quasi -municipal water use" and "municipal water use" are defined with regard to the "delivery and use of water through jaj water service system." The Board is unaware of any conclusive guidance in state statutes and regulations regarding the legality of hauling municipal or quasi -municipal water to a property for marijuana production and/or processing. The Board finds that the appropriate inquiry is instead entirely focused on DCC 18.116.330(B)(13)(b) and whether or not a water hauling company falls within the term "public or private water provider." In a recent land use decision issued on November 29, 2017, this Board determined that the applicant in that case satisfied DCC 18.116.330(B)(13)(b) by providing materials demonstrating that the property would be served by a water hauling company. Thereby, this Board in the past determined that a water hauling company is a "public or private water provider" at least for purposes of DCC 18.116.330(B)(13)(b). In the present case, this Board is not deviating from its past decision. F. DCC 18.124.060(K), Approval Criteria. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of- way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No. 2017-773 Page 7 of 8 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: In deliberations, the Board discussed with staff the traffic report performed by Joe Bessman of Transight Consulting, LLC (September 18, 2017) and subsequent comments (November 15, 2017), In addition, the Board discussed the two staff memos provided by Peter Russell and ODOT's determination that a "change of use" for the access to the roadway is not required by state law. Staff provided clarification regarding the issues around traffic and transportation access. The Board acknowledged these findings but did not provide judgement specific to DCC 18.124.060(K). V. DECISION Based on the findings of fact and conclusions of law set out above, the Board hereby denies the applicant's proposed marijuana production and processing application and reverses on appeal the September 22, 2017 administrative Findings & Decision (files 247 -17 -000172 -AD, 247 -17- 000173 -SP, and 247 -17 -000180 -AD), which approved the application. "Totoktary, ROII? Dated this 1...1—day of December, 2017 Mailed this o� day of December, VAT BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY Tammy l:;ancy, Chair Anthony DeBone, Vii., by Philip G Commissioner THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No, 2017-773 Page 8 of 8 Response Memorandum Exhibit C Email from John Short To Commissioner DeBone From: "iohnehortauoa.confxiohnnhorteusa.com> Subject: Water Rights Date: January 3, 2018 at 1:17:25 PM PST To: tonvdademchuhya.uro Tony, Some hopeflly helpful attachments. From our conversation, anyone with a water right must use the water to Beneficial Use without Waste (leaky canals). The way I read Oregon's laws, any water right holder (private or irrigation district) has to eliminate leakage or risk cancellation of their water right. Simply look at the definition of Wasteful Use attached OAR 690-008-0001(11). As to cannabis: Attached definitions: OAR 690-300-0010(26) (26) "Irrigation" means the artificial applicaUon of water to crops or plants by controlled means to promote growth or nourish crops or plants. Examples of these uses include, but are not limited to, watering of an agricultural crop, commercial garden, tree farm, orchard, park, golf course, play field or vineyard and alkali abatement. OAR 690-300-0010(29&40) (29) "Municipal Water Use" means the delivery and use of water through the water service system of a municipal corporation for all water uses usua and ordinary to such systems. Examples af these water uses shall include but are not imited to domestic water use, irrigation of lawns and gardens, commercial water use, industrial water use, Dire protection, irrigation and other water uses in park and recreation facilities, and street washing. Such uses shall not include generation of hydroelectric power. (40) "Quasi -Municipal Water Use" means the delivery and use of through VV8�� ..DOUQ.. the water service system of a corporation other than a public corporation created for the purpose of operating a water supply system, for those uses usual and Indian tribe that operates a water supply system for uses usual and ordinary to a municipal water use, A quasi -municipal water right shall not be granted the statutory municipal preferences given to a municipality under ORS 537.190(2), 537.230(1), 537.352, 537.410(2), 540.510(3), 540.610(2), (3), or those preferences over minimum streamflows designated in a basin program. Just browsing the attached few pages of definitions probably puts many arguments to bed. On amounts of water used, your neighbor Jeremy purchased just over 2 acres of irrigation for his entire projected grow. Compared to hay, most large cannabis operations have been asking for about 5,000 gallons per day (3.5 gallons per minute) or about the equivalent of one lawn sprinkler. In comparison, since large grows have typically been on at least 40 acres, those same 40 acre properties take about 225 gallons per minute to grow hay. Hope this helps. Thank you for your service, Staff Memorandum Attachment 3 Final Arguments received 1/10/18 - 1/17/18 *** Applicant's Final Arguments dated 1/17/18 Cynthia Smidt From: Michael Hughes <mrhughes@mrhugheslaw.com> Sent: Wednesday, January 17, 2018 11:13 AM To: Cynthia Smidt Subject: Applicant Final Arguments File No 247-17-000645 Attachments: FINAL WRITTEN ARGUMENTS.pdf Cynthia, Here are the Applicant's Final Arguments in this matter. Michael R. Hughes Trial Lawyer Minnesota / Nebraska / Oregon mrhughes(mrhugheslaw.com 9.0. Box 7619 Bend, Oregon 97708-7619 541-408-9884 www.mrhugheslaw.com www.thehughescompanies.com H"...0111. C 5.. 2510- '2521, 5 1 r Ie.iF'I'Iilalrty Notice: rill, t'I'llill I11CS5�1f;C' k cover( By I i(.' I: CCIiC)I"IIc. �_�:ilYlrilLll'lIC(:iiUIIS tlVr•C'�/ �:C:I, :18.1.,1. %..,.1.J s s- .- , ,..,l.l., �.nd is Ier;ally I',r"Ivllc�F;c�c:f. l.in�aui"Ilriie�l review, USC, diseJo�;ure c,r dlsi.l Ihuilurl Is :,frit-I-I�� I:c?I'li"ui.ca, Iryul� �?.r�' riot the intended reripicgrrt, ple c;e contact se: eider al 5411 408 98041, car 1:\y I e ply ern nil, arid destroy and recycle all cc,pi(°s of the original Iness-;g;e. BEFORE THE BOARD OF COMMISSIONERS DESCHUTES COUNTY File Number: 247-17-000645 Regarding the Land Use Application For OLCC Licensed Marijuana Production Applicant: Christopher Baker Location: 20420 Harper Road, Bend, Oregon APPLICANT'S FINAL ARGUMENTS The Applicant in the above entitled matter presents the following as their Final Written Arguments regarding the appeal of the Decision in the Land Use Application for a conditional use permit to engage in licensed marijuana production with the OLCC on their property. The Applicant relies on the entire record, including their application, the Staff's Findings and Decision regarding the application, oral testimony at the appeal hearing, written submissions, and their Memorandum in Response to the Appellants Memorandum. The Applicant would rely on their last memorandum submitted for a procedural history of the case and their detailed legal arguments proving compliance with the County's ordinance. The Applicant believes that the Staff Findings and Decision appropriately considered all the relevant facts and rules. The Appellant did not bring forth any legal or factual arguments that would compel the Board to deny the application or to overturn the Staff s initial Decision. The application detailed the most important information like the mechanical engineer's report on odor and noise and information on the water being used for the proposed operation. Regarding odor and noise, the Applicant has submitted a report that details how a carbon filtration odor control system will scrub any air that leaves the rooms used for cannabis production. HUGHES 1 This report demonstrates how this system will specifically work in the proposed rooms inside the existing building. The report uses the equation from the ordinance to explain how many CFM's the system will have to move in each room to be compliant with the code. The report then details how this system will do that, and thus prevent any unreasonable infringement upon any neighbors' property due to odor from the cannabis operation. The small-scale of the proposed indoor operation, combined with the odor control system, will make in unlikely that any marijuana related odor will be detectable immediately outside the building. It has also been pointed out that the horses on the property would likely cause more odor than the cannabis operation. The proposed system as demonstrated by the mechanical engineer would meet the requirements under the Code. There has been no evidence or argument presented that show or negate the expert opinion of the mechanical engineer regarding the proposed odor control system and as such the Applicant has provided sufficient proof that the odor control system meets the requirements of the Code. With regard to noise, the same report details how the Applicant will not generate enough noise at any time that would exceed 30dB(A) at any property line. Thus, the proposed operation would not exceed that decibel limit from 10 pm until 7 am as required under the Code. Any noise generated by the HVAC system would be intermittent and not sustained. Again, no alternative information or credible argument has been made that would contradict the mechanical engineer's report concerning the Applicant's compliance regarding noise. The Applicant has provided the required proof of a water rights permit from the OWRD for the use of their well water from March through October. There has been no evidence or H U G H L 5 Page 2 of 4 testimony that credibly shows that the Applicant is not allowed to use this water for cannabis production. In fact, all the evidence presented indicate that the water can be used for cannabis production. The Applicant is also proposing to haul water in the off-season. The Board has already considered this issue and it has determined that it is an acceptable source of water to satisfy the "public or private water provider" language under the Code and state regulations. Thus, the Applicant has satisfied their requirement to show legal sources of water for the cannabis operation. The Applicant did request an exception to the rules as it relates to the 100 -foot distance from the lot line under DCC 18.116(B)(6)(a). As noted in the Decision approving this application, the Applicant's building was 58 feet from the east boundary and 55 feet from the north boundary. It was also noted in the Decision that the closest off-site dwelling was 500 feet from the proposed building. The Applicant has shown and the Staffs Findings and Decision detail how the reduction to the setback requirements in this particular case would provide equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts as required under DCC 18.116(B)(6)(c). By allowing the setback exception and the use of the current building, there will be greater or equal protection to all the properties that are near the proposed operation. The proposed building is the best possible location on the property for marijuana production. The current building is placed in such a way as to be away from many of the nearby off-site dwellings. Allowing the setback exception and the use of this existing building truly is the best way to mitigate all the issues involving light, odor, noise, privacy and access. Page 3 of 4 The Staff s Findings and Decision detailed all the requirements for a Conditional Use and why the proposed use was congruent with the surrounding areas and their uses. That Decision also includes two pages of conditions for approval, including some that address issues raised by the Appellant. The Applicant will abide by all conditions of approval. The Staff's Decision was appropriate, supported by the facts, and should be adopted by the Board. The Appellant has not presented any facts, evidence, or arguments that would be sufficient to reverse the Staff's decision regarding this Conditional Use Land Use Review application. This Decision to allow the use of this property for a small-scale cannabis production operation fits into the policy of preserving farm land for farm use that is inherent in the County's Comprehensive Planning. The application and the Decision by the Staff to approve it sufficiently addresses the concerns raised in this appeal. The Applicant requests that the Board adopt the Staff's decision and approve the application. DATED: 17JAN2018 Respectfully Submitted, Michael R. Hughes, OSB #135942 Attorney for Applicant H U G H E S Page 4 of 4 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6085 (541) 388-6575 Fax (541) 385-1764 http://wv,w.deschutes.org/cd FINDINGS AND DECISION FILE NUMBER: 247 -17 -000645 -CU APPLICANT/OWNER: Christopher Baker 64682 Cook Avenue #130 Bend, Oregon 97703 REQUEST: The applicant is requesting a Conditional Use permit to establish a marijuana production (grow) facility on a 9.73 -acre parcel in the Multiple Use Agricultural Zone STAFF CONTACT: Cynthia Smidt, Associate Planner I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.32. Multiple Use Agricultural Zone Chapter 18.80. Airport Safety Combining Zone Chapter 18.116. Supplemental Provisions Chapter 18.128. Conditional Uses Title 22, Deschutes County Development Procedures Ordinance I1. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 20420 Harper Road, Bend. The property is also identified on Deschutes County Assessor's Map No. 16-12-9, as Tax Lot 503. B. LOT OF RECORD: Deschutes County recognizes the subject property as a legal lot of record because it is Parcel 1 of Partition Plat PP 1995-60. C. ZONING: The subject property is zoned Multiple Use Agricultural (MUA-10). The property is also within the Airport Safety (AS) Combining Zone. The subject property is designated rural residential exception area on the Deschutes County Comprehensive Plan. D. SITE DESCRIPTION: The subject property is approximately 9.73 acres and rectangular. The site with relatively level topography is vegetated with pasture grasses, native and introduced trees and other landscaping. Harper Road abuts the property along its southern Quail viers Performed with !'rule boundary'. The primary access to the site is taken from Harper Road. The property is currently developed with a single-family dwelling and several accessory structures, including an agricultural building, approximately 7,763 square feet in size (this structure was reviewed through agricultural/equine permit AG0774).2 According to the Flood Insurance Rate Map for Deschutes County and the National Wetlands Inventory, respectively, the subject property is not located in the 100 -year flood plain and does not contain wetlands. E. SURROUNDING LAND USES: The area surrounding the subject property consists of developed and vacant rural residential properties, farm -zoned parcels, and public lands. Directly east of the property are residentially zoned properties. Farm -zoned parcels surround the property to the south, west, and further to the east. Large parcels of public lands, managed by the U.S. Bureau of Land Management, border the property to the north and at the southeast corner. Zoning in the area is a mixture of Multiple Use Agricultural and Exclusive Farm Use. F. PROPOSAL: The applicant is requesting approval of a Conditional Use permit to establish an indoor marijuana production (grow) facility on the subject property'. The proposal consists of a maximum mature plant canopy size of 576 square feet within an existing accessory (agricultural) structure. The applicant proposes to use approximately 1,360 square feet4 within an existing agricultural building, which will include a maximum mature plant canopy size of 576 square feet. The existing agricultural structure intended for the proposed use is adjacent to the northern property boundary. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Bend Fire and Rescue: Comments were submitted by Jeff Bond, Deputy Fire Marshal, on August 31, 2017. Mr. Bond's comments are below. General Safety Provisions: • Material Safety Data Sheets shall be on property and made easily accessible to the fire code official. Section 5003.4 of the 2014 Oregon Fire Code • Containers and/or packages related to hazardous materials shall be properly labeled and warning signage shall be properly displayed and easily visible. Section 5003.5.1 of the 2014 Oregon Fire Code. • All persons shall be trained on what to do in the event of an emergency involving hazardous materials on the property. Sections 406 and 407 of the 2014 Oregon Fire Code. 1 Near the southwestern corner of the property, Harper Road intersects with White Rock Loop, which travels west and south from this intersection. 2 The submitted site plan illustrates a "Bunk House" just north of the "Main House." In addition, the submitted floor plan illustrates the agricultural building includes a "Dance Hall." This decision does not review or verify the legal status of either the bunk house or dance hall (as a permitted use within an agricultural/equine building). 3 The original proposal included using a portion of the existing structure and enclosing an overhang area on the north side of the structure. The applicant revised this plan by moving everything inside the existing structure and deleting the proposal to enclose the overhang area. 4 Staff performed a rough calculation of the proposed facility as illustrated on the revised site plan and floor plan and which included rooms intended for all stages of growth (e.g. flowering and drying) and storing and staging of materials. 247 -17 -000645 -CU, Baker Page 2 • NFPA 704 hazard identification signs shall be placed on stationary containers and above ground tanks and at entrances to locations where hazardous materials are stored, dispensed, used, or handled in quantities requiring a permit and at specific entrances and locations designated by the fire code official. Section 5003.5 of the 2014 Oregon Fire Code. • Clearance between ignition sources, such as luminaires, heaters, flame - producing devices, and combustible materials, shall be maintained in an approved manner. Section 305.1 of the 2014 Oregon Fire Code. Building and Equipment Design Features: • Interior finishes (Visqueen® or Mylar® type plastic/polyethylene or polyester to cover walls and ceilings) must comply with flame spread ratings in accordance with Table 803.3 of the 2014 Oregon Fire Code. Exits and Exit Signage, Egress: Security measures shall not conflict with the maintenance and operation of exiting and egress. • Means of egress shall not be concealed in any way. Section 1008.1 of the 2014 Oregon Fire Code. • Exit doors and their function shall not be eliminated or modified in any way without prior approval of the Building Official. Section 1001.2 of the 2014 Oregon Fire Code. • Slide bolts and security bars installed on emergency egress doors are prohibited. Section 1008.1.9.4 of the 2014 Oregon Fire Code. Fire Extinguishers: • Provide 10 lb. ABC 4A: 80B: C portable fire extinguishers through the facility to achieve a maximum travel distance of no more than 75 feet to each fire extinguisher. Section 906.1 of the 2014 Oregon Fire Code. Fire Apparatus and Building Access: • Buildings/facilities associated with the production of marijuana shall have at least one all-weather road 20 feet wide and supporting fire apparatus up to 60,000 GVW. Section 503.2 of the 2014 Oregon Fire Code. • Gates across fire apparatus access road shall be approved by the fire code official. Section 503.6 of the 2014 Oregon Fire Code. • The installation of a Knox Box® and/or Knox® Key Override shall be installed to provide rapid entry. Section 506.1 of the 2014 Oregon Fire Code. Fire Protection Water Supplies: • An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. Section 507.1 of the 2014 Oregon Fire Code. • Fire flow requirements for buildings or portions of buildings shall be determined by an approved method. Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. 247 -17 -000645 -CU, Baker Page 3 • In areas without water supply systems, the fire code official is authorized to use NFPA 1142 in determining fire flow requirements. Appendix B107.1 of the 2014 Oregon Fire Code. Hazardous Materials and Operations: • Provide information to the fire code official on the use of Carbon Dioxide and Carbon Dioxide generators related to the marijuana production operation. The use of Carbon Dioxide or Carbon Dioxide Generators creating an asphyxiation hazard shall require monitoring, detection and an audible alarm. Chapter 50 of the 2014 Oregon Fire Code. Electrical: • Identified electrical hazards shall be abated. Identified hazardous electrical conditions in permanent wiring shall be brought to the attention of the responsible code official. Electrical wiring, devices, appliances, and other equipment that is modified or damaged and constitutes an electrical shock or fire hazard shall not be used. Section 605.1 of the 2014 Oregon Fire Code. • Electrical appliances and fixtures shall be tested and listed in published reports of inspected electrical equipment by an approved agency and installed and maintained in accordance with all instructions included as part of such listing. Section 605.7 of the 2014 Oregon Fire Code. Other Fire Service Features: • New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole, or other sign or means shall be used to identify the structure. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 541-388-6309 during normal business hours. Section 505.1 of the 2014 Oregon Fire Code. 2. Central Electric Cooperative (CEC): The following comments were received on August 22, 2017: CEC requests the applicant apply for a new electrical service by calling 541-548- 2144 and provide electrical load and demand requirements for this activity. CEC will determine if capacity is available STAFF COMMENT: The applicant provided a letter by Robert Fowler, Engineering Service Representative with CEC, dated July 28, 2017 stating that CEC reviewed the proposed marijuana production facility and "is willing and able to serve this location" 3. Deschutes County Building Safety Division: Randy Scheid, Building Safety Director, submitted comments on August 16, 2017. Mr. Scheid's comments are below: 247 -17 -000645 -CU, Baker Page 4 The Deschutes County Building Safety Division code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 4. Deschutes County Road Department: Cody Smith, County Engineer, received the following comments on August 18, 2017: I have reviewed the application materials for the above -referenced file number, requesting a conditional use permit to establish a recreational marijuana production facility at 20420 Harper Rd. The subject property has an existing driveway access to Harper Road that was approved for farm use under Permit #SW3528. A new driveway access permit is not required. STAFF COMMENT: In an August 17 email correspondence, Mr. Smith confirmed that Harper Road is a County maintained road in front of the subject property. Mr. Smith also states, "Harper Road is a County - maintained road from the intersection of White Rock Loop to approximately 0.74 mile east of that intersection. 5. Deschutes County Transportation Planner: Peter Russell, Senior Transportation Planner submitted the following comments, on August 18, 2017: I have reviewed the transmittal materials for 247 -17 -000645 -CU for a marijuana production (growing) operation in the Multiple Use Agricultural (MUA-10) and Airport Safety (AS) zones at 20420 Harper Road, aka 16-12-09, Tax Lot 503. Deschutes County Code (DCC) at 18.116.330(8)(8) only requires proof of legal direct access to the property or access from a private easement; the traffic study requirements of DCC 18.116.310 are not applicable for a marijuana production application. Thus no traffic study can be required. The building lies approximately 35,650 feet to west-southwest of the Redmond Airport. The existing buildings do not penetrate any imaginary surface related to the Redmond Airport. 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 enclosing a portion of an existing building for the production and support of cannabis. Based on the supplied materials, staff arrived at 1,236 square feet will be used (12' X (24' + 4' + 24') and 18' X 34). The County's SDC is based on the building's total square footage related to cannabis production and support and not the square footage of the mature canopy. The 1,236 square feet will produce 0.40 p.m. peak hour trips (1.236 X 0.32). The resulting SDC is $1,575 (0.40 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. 247 -17 -000645 -CU, Baker Page 5 6. Tumalo Irrigation District: The following comments and a map were submitted on August 15, 2017: There are no irrigation water rights on Parcel#1612090000503. 7. The following aaencies did not respond or had no comments: Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes County Property Address Coordinator, Oregon Department of Aviation, Oregon Liquor Control Commission, Pacific Power, and Watermaster — District 11. H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 250 feet of the subject property. One comment was submitted in favor by Matt Cyrus of the Deschutes County Farm Bureau. Six comments were submitted in opposition of the proposal that included the following concerns: • Water and power usage • Odor, noise, and lighting • Safety (crime) • Traffic impacts • Property values • Setback Exception and Expansion plans • Cline Buttes Recreation Area/Maston Trail Use Area proximity • Covenants, Conditions, and Restrictions (CC&Rs) for the property The applicant provided a response to these concerns on November 15, 2017, which is incorporated in the record by reference. I. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of Section 22.24.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated August 9, 2017, indicating the applicant posted notice of the land use action on August 9, 2017. J. REVIEW PERIOD: The application was submitted to the Planning Division on August 1, 2017. The Planning Division deemed the application complete and accepted it for review on August 31, 2017. The 150th day on which the County must take final action on this application is January 28, 2017. III. FINDINGS AND CONCLUSIONS: Title 18, Deschutes County Zoning Ordinance. A. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE 1. Section 18.32.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: JJ. Marijuana production subject to the provisions of DCC 18.116.330. FINDING: The applicant is proposing marijuana production on the subject property. Compliance with the provisions of DCC 18.116.330 and 18.128.015 is addressed later in the decision. 247 -17 -000645 -CU, Baker Page 6 2. Section 18.32.040. Dimensional Standards. In an MUA Zone, the following dimensional standards shall apply: D. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040. FINDING: The marijuana production facility will be established in an existing agricultural structure that has an approximate height of 23 feet. The structure was reviewed through agricultural (equine) permit AG0774. There are no new structures proposed. Therefore, this criterion is not applicable. 3. Section 18.32.050. Yards. A. The front yard setback from the property line shall be a minimum of 20 feet for property fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 80 feet from an arterial right of way unless other provisions for combining accesses are provided and approved by the County. B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before November 1, 1979, which are one-half acre or less in size, the side yard setback may be reduced to a minimum of 10 feet. For parcels or lots adjacent to property receiving special assessment for farm use, the adjacent side yard for a dwelling shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to property receiving special assessment for farm use, the rear yards for a dwelling shall be a minimum of 100 feet. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. E. 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: As indicated previously, the marijuana production facility will be established in an existing agricultural structure. These criteria were reviewed with agricultural permit AG0774. According to County records, the existing structure has a front (south) yard setback from Harper Road of approximately 1,158 feet. Side yard setbacks from the west and east property boundaries are 110 feet and 36 feet, respectively. The rear (north) yard setback is approximately 66 feet. These criteria are satisfied. B. CHAPTER 18.80. AIRPORT SAFETY COMBINING ZONE 1. Section 18.80.020. Application of Provisions. The provisions of DCC 18.80.020 shall only apply to unincorporated areas located under airport imaginary surfaces and zones, including approach surfaces, transitional surfaces, horizontal surfaces, conical surfaces and runway protection zones. While DCC 18.80 identifies dimensions for the entire imaginary surface and zone, parts of the surfaces and/or zones do not apply within the Redmond, Bend 247 -17 -000645 -CU, Baker Page 7 or Sisters Urban Growth Boundaries. The Redmond Airport is owned and operated by the City of Redmond, and located wholly within the Redmond City Limits. Imaginary surface dimensions vary for each airport covered by DCC 18.80.020. Based on the classification of each individual airport, only those portions (of the AS Zone) that overlay existing County zones are relevant. Public use airports covered by DCC 18.80.020 include Redmond Municipal, Bend Municipal, Sunriver and Sisters Eagle Air. Although it is a public -use airport, due to its size and other factors, the County treats land uses surrounding the Sisters Eagle Air Airport based on the ORS 836.608 requirements for private -use airports. The Oregon Department of Aviation is still studying what land use requirements will ultimately be applied to Sisters. However, contrary to the requirements of ORS 836.608, as will all public -use airports, federal law requires that the FAA Part 77 surfaces must be applied. The private -use airports covered by DCC 18.80.020 include Cline Falls Airpark and Juniper Airpark. FINDING: The subject property lies within one imaginary surface for the Redmond Municipal Airport. The proposal does not include establishing a new structure. The applicant is proposing to use an existing agricultural building. The structure is located in the northern region of the property. This area of the property is located below the Approach Surface. Therefore, the provisions of this chapter apply to the proposal. 2. Section 18.80.028. Height Limitations. All uses permitted by the underlying zone shall comply with the height limitations in DCC 18.80.028. When height limitations of the underlying zone are more restrictive than those of this overlay zone, the underlying zone height limitations shall control. [ORS 836.619; OAR 660-013-0070) A. Except as provided in DCC 18.80.028(B) and (C), no structure or tree, plant or other object of natural growth shall penetrate an airport imaginary surface. 'ORS 836.619; OAR 660-013-0070(1)) FINDING: The subject property is situated under one imaginary surface associated with the Redmond Municipal Airport. All imaginary surfaces associated with the Redmond Municipal Airport are at least 100 -feet above the subject property and no penetrations of this surface are included in this proposal. This criterion is met. B. For areas within airport imaginary surfaces but outside the approach and transition surfaces, where the terrain is at higher elevations than the airport runway surfaces such that existing structures and permitted development penetrate or would penetrate the airport imaginary surfaces, a local government may authorize structures up to 35 feet in height. FINDING: The subject property is within the Approach Surface of the Redmond Municipal Airport. The imaginary surface is at least 100 -feet above the subject property and no penetrations of this surface are included in this proposal. This criterion is met. C. Other height exceptions or variances may be permitted when supported in writing by the airport sponsor, the Department of Aviation and the FAA. Applications for height variances shall follow the procedures for other 247 -17 -000645 -CU, Baker Page 8 variances and shall be subject to such conditions and terms as recommended by the Department of Aviation and the FAA (for Redmond, Bend and Sunriver.) FINDING: No height exceptions or variances are sought by this application; therefore, this criterion does not apply. 3. Section 18.80.044. Land Use Compatibility. Applications for land use or building permits for properties within the boundaries of this overlay zone shall comply with the requirements of DCC 18.80 as provided herein. When compatibility issues arise, the Planning Director or Hearings Body is required to take actions that eliminate or minimize the incompatibility by choosing the most compatible location or design for the boundary or use. Where compatibility issues persist, despite actions or conditions intended to eliminate or minimize the incompatibility, the Planning Director or Hearings Body may disallow the use or expansion, except where the action results in loss of current operational levels and/or the ability of the airport to grow to meet future community needs. Reasonable conditions to protect the public safety may be imposed by the Planning Director or Hearings Body. [ORS 836.619; ORS 836.623(1); OAR 660-013-0080] A. Noise. Within airport noise impact boundaries, land uses shall be established consistent with the levels identified in OAR 660, Division 13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any subdivision or partition approval or other land use approval or building permit affecting land within airport noise impact boundaries, shall sign and record in the Deschutes County Book of Records, a Declaration of Anticipated Noise declaring that the applicant and his successors will not now, or in the future complain about the allowed airport activities at the adjacent airport. In areas where the noise level is anticipated to be at or above 55 Ldn, prior to issuance of a building permit for construction of a noise sensitive land use (real property normally used for sleeping or as a school, church, hospital, public library or similar use), the permit applicant shall be required to demonstrate that a noise abatement strategy will be incorporated into the building design that will achieve an indoor noise level equal to or less than 55 Ldn. NOTE: FAA Order 5100.38A, Chapter 7 provides that interior noise levels should not exceed 45 decibels in all habitable zones.] FINDING: The proposed project is not within the noise impact boundary of the Redmond Municipal Airport. Therefore, this criterion is not applicable. B. Outdoor lighting. No new or expanded industrial, commercial or recreational use shall project lighting directly onto an existing runway or taxiway or into existing airport approach surfaces except where necessary for safe and convenient air travel. Lighting for these uses shall incorporate shielding in their designs to reflect light away from airport approach surfaces. No use shall imitate airport lighting or impede the ability of pilots to distinguish between airport lighting and other lighting. FINDING: The applicant is proposing to establish a marijuana production facility within an existing agricultural structure. The proposed facility is an agricultural use. The applicant is not proposing a new or expanded industrial, commercial, or recreational use. Therefore, this criterion is not applicable. 247 -17 -000645 -CU, Baker Page 9 C. Glare. No glare producing material, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of structures located within an approach surface or on nearby lands where glare could impede a pilot's vision. FINDING: The applicant is not proposing any modifications of the existing structure. The exterior siding and roofing material will not be changed with this proposal. The siding and roofing of the existing structure is finished with earth tone colors. This criterion is satisfied. D. Industrial emissions. No new industrial, mining or similar use, or expansion of an existing industrial, mining or similar use, shall, as part of its regular operations, cause emissions of smoke, dust or steam that could obscure visibility within airport approach surfaces, except upon demonstration, supported by substantial evidence, that mitigation measures imposed as approval conditions will reduce the potential for safety risk or incompatibility with airport operations to an insignificant level. The review authority shall impose such conditions as necessary to ensure that the use does not obscure visibility. FINDING: The proposed use is an agricultural use, and does not include any industrial, mining, or similar use. E. Communications Facilities and Electrical Interference. No use shall cause or create electrical interference with navigational signals or radio communications between an airport and aircraft. Proposals for the location of new or expanded radio, radiotelephone, and television transmission facilities and electrical transmission lines within this overlay zone shall be coordinated with the Department of Aviation and the FAA prior to approval. Approval of cellular and other telephone or radio communication towers on leased property located within airport imaginary surfaces shall be conditioned to require their removal within 90 days following the expiration of the lease agreement. A bond or other security shall be required to ensure this result. FINDING: The proposed development will not cause or create electrical interference with navigational signals or radio communications between an airport and aircraft. F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach Surface, and Airport Direct and Secondary Impact Areas. For the Redmond, Bend, Sunriver, and Sisters airports, the land uses identified in DCC 18.80 Table 1, and their accessory uses, are permitted, permitted under limited circumstances, or prohibited in the manner therein described. In the event of conflict with the underlying zone, the more restrictive provisions shall control. As used in DCC 18.80.044, a limited use means a use that is allowed subject to special standards specific to that use. FINDING: The subject property and existing agricultural structure intended for the proposed marijuana production facility will be located in the Approach Surface of the Redmond Municipal Airport. The proposed use is considered farm use, which is a use allowed outright according to DCC 18.80 Table 1. 247 -17 -000645 -CU, Baker Page 10 4. Section 18.80.054. Conditional Uses. Uses permitted conditionally shall be those identified as conditional uses in the underlying zone with which the AS Zone is combined, and shall be subject to all conditions of the underlying zone except as provided in DCC 18.80.044. FINDING: The applicant is proposing to establish a marijuana production facility in an existing agricultural structure. Marijuana production is a use permitted conditionally in the MUA-10 Zone and thus permitted conditionally in the AS Zone. C. 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. FINDING: The applicant has proposed marijuana production in an MUA-10 zone. This criterion is met. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is 9.73 acres in size. This standard is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is located in the MUA-10 zone. The proposed facility with be located entirely within one existing agricultural structure. This standard is met. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: 247 -17 -000645 -CU, Baker Page 11 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 above criteria applies to properties within the EFU Zone. The subject property is within the MUA-10 Zone. This standard is not applicable. For reference, however, the applicant has proposed up to 576 square feet in mature plant canopy area. 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 located in the MUA-10 Zone and is 9.73 acres in size. The applicant proposes to use a small area, approximately 1,206 square feet of an existing agricultural structure. Therefore, these criteria are satisfied. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed marijuana production facility will operate under no more than one OLCC permit. Staff includes this requirement as a condition of approval. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard SetbacWDistance from Lot Lines: 100 feet. FINDING: The marijuana production facility will be established in an existing agricultural building on the property. According to County records for permit AG0774, the structure has a front yard setback from Harper Road of approximately 1,158 feet. The side yard setbacks from the west and east property boundaries are 110 feet and 36 feet, respectively, and the rear yard setback is approximately 66 feet. However, the applicant indicates the east side yard and rear yard setbacks are approximately 58 feet and 55 feet, respectively. The applicant is requesting an exception to the rear yard and east side yard setback, as discussed below in subsection (c). 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 247 -17 -000645 -CU, Baker Page 12 Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. FINDING: The submitted site plan shows the existing agricultural structure intended for the marijuana production will be no Tess than 300 feet from most off-site dwellings in the area. The closest residence to the proposed site is approximately 500 feet, located southeast at 20440 Harper Road. This criterion is satisfied. 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 proposed marijuana production facility will occur within an existing agricultural structure located in the northern region of the property. The agricultural building, approximately 7,763 square feet, was established in 2007 through permit AG0774. The barn is separated into several areas including horse stalls, storage areas, and other uses. The applicant proposes to use a portion of the structure, approximately 1,360 square feet, for marijuana production. The remaining areas will maintain their existing uses (e.g. horse stalls, tack room, personal storage). As noted above, the existing structure has a rear setback from the north property boundary of approximately 55 feet. In addition, the existing structure has a side setback from the east property boundary of approximately 58 feet. The setbacks of the existing structure are slightly different from those that were indicated under permit AG0774. Nevertheless, the setbacks meet the requirement under MUA-10 zoning. Both the side and rear setbacks are less than the required 100 -foot setback standard for marijuana production. The applicant is requesting an exception to the 100 -foot setback standard for these two setbacks. Visual: Staff finds that the structure is visually similar to typical residential accessory structures or agricultural structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks typically required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. The applicant is not proposing any modifications of the existing structure. The exterior siding and roofing material will not be changed with this proposal. No production lighting will be visible off- site, due to the use of an opaque building, and all other lighting will comply with the lighting requirements of DCC 15.10. Odor: All air leaving the structure will be filtered, as described below. This system does not rely on distance to attenuate or dissipate odor. Staff finds that production will be conditioned to have an odor control system that must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. Staff finds that the combination of the odor control system and condition of approval will ensure that equal mitigation will be provided despite the reduced setback. Noise: The heating and cooling system will run intermittently, as needed. The heat pump unit will be located on the north side of the structure, under a roof overhang. The unit has a sound level rating of 56 dB. According to the submitted engineer's calculations, based on the orientation and location of the unit, together with the sound barrier provided by the overhanging roof of the structure, the sound level will decrease to 10.2 dB and 19.1 dB 247 -17 -000645 -CU, Baker Page 13 at the nearest western and eastern boundary, respectively. No other components of production are anticipated to produce sustained noise. Lighting: No production lighting will be visible off-site, due to the use of an opaque building. All other lighting will comply with the lighting requirements of DCC 15.10. Privacy: Staff finds that the structure is visually similar to typical residential accessory structures and agricultural structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. Staff finds the combination of screening and buffering, due to distance, will adequately mitigate any privacy concerns. Access: Staff finds the property has direct access to a County maintained, public road. The use is of a limited size and scale such that no traffic impacts are anticipated. For these reasons, staff finds that the applicant has demonstrated that 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(6)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: Fifteen properties are wholly or partially within 1,000 feet of the subject property. None of these properties is in a use described in this section or is subject to sub -section (c). The closest such use is the Seventh Day Adventists School located at 21155 Tumalo Road, which is approximately 3.5 miles to the southeast of the subject property. For reference, the Maston Trail Use Area, a BLM recreational area, is located 247 -17 -000645 -CU, Baker Page 14 approximately 1,400 feet to the north. However, this BLM Recreational area is not considered a national monument or state park. These criteria are met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. 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: Access to the site is taken from Harper Road. The applicant proposes a maximum canopy size of 576 square feet; therefore, these criteria are not applicable. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. FINDING: The applicant has proposed to limit visible lighting outside the structure from 7:00 p.m. to 7:00 a.m. The agricultural building will have opaque walls and roof covering, according to the applicant. Staff finds these criteria can be met but to ensure compliance, staff includes these criteria as conditions of approval. 10. Odor. As used in DCC 18.116.330(6)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to 247 -17 -000645 -CU, Baker Page 15 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 letter from Laura J. Breit, an Oregon licensed professional mechanical engineer with ColeBreit Engineering. The applicant states the proposed facility will be designed as a "closed room" with CO2 supplementation and air conditioning. Mrs. Breit provides more detail involving the installation of Can -Fan with an attached Can -Filter (carbon filter) as part of the system. To ensure compliance, it will be made a condition of approval that an effective odor control system at all times must prevent unreasonable interference of neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 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 letter from Laura J. Breit, an Oregon licensed professional mechanical engineer with ColeBreit Engineering. Mrs. Breit indicates the proposal will include a heat pump located on the north side of the existing structure. The heat pump system will provide heating and cooling to the growing process. The outdoor heat pump has a sound level rating of 56 dB, which decreases to 10.2 dB and 19.1 dB at the nearest western and eastern boundary, respectively. Based on Mrs. Breit's analysis, the system will not cause sustained noise exceeding 30 dB measured at any property line between 10:00 p.m. and 7:00 a.m. and thus meeting noise control requirements. To ensure compliance, it will be made a condition of approval that 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. 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 -000645 -CU, Baker Page 16 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 applicant is not proposing any new fencing or razor wire. The applicant proposes to retain screening vegetation as part of this project. Staff adds the following conditions to ensure compliance with the above section. As an ongoing condition of approval, any future fencing shall be finished in a muted earth tone. The fencing shall blend with the surrounding natural landscape and not be constructed of temporary materials such as plastic sheeting, hay bales, or tarps. As an ongoing condition of approval, the existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. 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 subject property contains 8.3 acres of groundwater rights for use during the irrigation season of March 1 to October 31. The applicant intends to apply with the Oregon Water Resources Department to convert one (1) acre of existing water rights from irrigation to nursery rights. Until that conversion is reviewed and approved, the applicant is purchasing water from ABC Lightning, LLC during the off-season, November 1 to February 28. This standard is met. Based on the information in the record, staff finds this criterion will be 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: This criterion does not apply because it pertains to marijuana processing not production. 247 -17 -000645 -CU, Baker Page 17 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: Robert Fowler, Engineering Service Representative provided the following comments on July 28, 2017. Central Electric Cooperative has reviewed the provided load information (New 400 amp single phase 240 volt service) associated with the submitted Cannabis Grow Facility is willing and able to serve this location in accordance with the rates and policies of the Central Electric Cooperative. This criterion is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: The applicant proposes security cameras with this proposal that will be connected to an alarm system. The applicant acknowledges the requirement noted above. The proposed security cameras will be directed to record only the subject property. To ensure compliance, staff includes it as a condition of approval. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant acknowledges this requirement. Staff includes this requirement as a condition of approval. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is within the MUA-10 Zone. The applicant is proposing a marijuana production facility. Therefore, the resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, if the license applies to the subject property. The applicant and owner, Chris Baker, will be living on the property and will be the holder of an OLCC license. To ensure compliance this will be made a condition of approval. 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. 247 -17 -000645 -CU, Baker Page 18 FINDING: The subject property does not presently have an established grow site. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; 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. 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: The applicant has indicated that none of the prohibited uses identified in this section are proposed. As a condition of approval, the uses listed in DCC 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. 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. 247 -17 -000645 -CU, Baker Page 19 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 requirements of this section shall be a condition of approval. D. CHAPTER 18.128. CONDITIONAL USES 1. Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The applicant is requesting to establish a marijuana production facility licensed on the subject property. The proposed use will be sited within an existing agricultural structure established in 2007 and which is located in the northern region of the 9.73 -acre property. The property has relatively level terrain with some native and introduced vegetation throughout the property, including trees, groundcover, and pasture grasses. The site is developed with a single-family dwelling and other accessory structures, primarily located in the northern half of the property. Harper Road is adjacent to the property along its southern boundary. Access to the property is taken from Harper Road via an existing gravel driveway. The proposed marijuana production facility includes a grow operation to no more than 576 square feet of mature plant canopy in order to meet the OLCC Micro Tier I Canopy regulations. As indicated above, the production facility will be located in an existing agricultural structure. No exterior alterations, new structures, signs, or other site improvements are proposed. The existing structure has a front (south) yard setback from Harper Road of approximately 1,158 feet. Side yard setbacks from the west and east property boundaries are 110 feet and 36 feet, respectively. The rear (north) yard setback is approximately 58 feet. The applicant proposes to retain screening vegetation as part of this project. As a condition of approval, the resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, provided that the license applies to the subject property. Operational characteristics include complying with the lighting, odor, and noise standards of DCC 18.116.330. Based on the applicant's description of the facility's design and operating characteristics, staff finds the proposal demonstrates that the site under consideration is suitable for the proposed marijuana production facility. 247 -17 -000645 -CU, Baker Page 20 2. Adequacy of transportation access to the site; and FINDING: The proposed facility would have primary access from Harper Road, which is designated as a rural local road. Harper Road is adjacent to the southern property boundary. The applicant proposes to use the existing gravel driveway off Harper Road. An access permit was issued to the property through permit SW3528. Staff finds the road is adequate for passenger vehicles and can accommodate vehicle trips generated by the use. No inadequacy of the existing transportation infrastructure has been identified in the record. 3. The natural and physical features of the site, including,but not Iimited to, general topography, natural hazards and natural resource values. FINDNG: The subject property is approximately O.73acres and developed with a single- family dwelling, ik+f8nilydvvmU|ng, several accessory structures, and agricultural uses. The property has relatively level terrain. The site is vegetated with treao, groundcover, and pasture grasses. Staff finds that the site presents no topographical constraints, is not subjectto any unusual natural hazards, contains no natural resources, and is suitable for the proposed use. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed inDCC Y8.Y28.015(A)' FINDING: The applicant is proposing to establish a marijuana production facility licensed through OLCC. The production facility will be located in an existing agricultural structure that is located in the northern region of the property. The applicant is the resident and owner of the property and whom will be involved with the daily operation of the production facility. As noted pnevioue|y, operational characteristics also include complying with the Iighting, odor, and noise standards of DCC 18.116.330. The subject property is surrounded by developed and vacant rural residential properties, farm -zoned peroe|s, and public lands. Directly to the east are residentially zoned properties. Farm -zoned parcels surround the property to the south, west, and furthertn the east. Bordering the property to the north and at the southeast corner are public lands managed by the U.S. Bureau of Land Management. HarperRoed/VVhite Rock Loop, which services many other properties in the area, runs east to west and abuts the property along its southern boundary. The closest residential development to the facility is approximately 500 feet to the southeast. There is evidence of other farm practices, arge and small, occurring on the neighboring private lands. There is the potential of farm use to continue to occur in the future. There are no properties used or zoned for forest use in the surrounding area; the predominant tree species in the surrounding area is juniper, which is not a commerciaf species. The prjected land uses based on the current zoning will likely be similar to those already established such as single-family dwellings and agricultural uses, as well as low -intensity recreational use on neighboring public lands. Staff inunaware 0fany other projected ueesonnurroundingpropertieu. 247 -17 -000645 -CU, Baker Page21 Site Design, and Operating Characteristics Staff finds that the proposed use would not directly impede the use of surrounding properties for residential and farm use, as it would not prevent or restrict development of otherwise lawful uses in the surrounding zones. Several comment letters were received and made part of the record. Some of the concerns and objections include odor, noise, and lighting impacts, increased crime, and decreased property values. Staff acknowledges that these inlpacte, depending on the magnitude, could adversely affect surrounding residential uses. This would result in the proposed use being incompatible with the surrounding residential uses. Staff evaluated the identified potential impacts below. Visual: Staff has previously found that the structure is visually similar botypical residential accessory structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks typically required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. The applicant is not proposing any modifications of the existing structure. The exterior siding and roofing material wUl not be changed with this proposal. No production lighting will be visible off-site, due to the use of an opaque bui}d)ng, and all other Iighting will comply with the lighting requirements of DCC 15.10. Odor: AH air leaving the structure will be filtered, as described above. This system does not rely on distance to attenuate or dissipate odor. While staff understands concerns regarding odor, the record includes the statement of a registered professional engineer that the proposed system will, prevent unreasonable interference of neighbors' use and enjoyment of their property. Staif finds that compliance with this standard is sufficient to demonstrate that the use will be compatible with surrounding residential uses. There is no evidence in the record that the proposed odor control system cannot accomplish this requirement. Were the system to fail to meet this standard, the standard is included as a condition of approval and violation would be subject to code enforcement. Noise: The heating and cooling system will run intermittently, as needed. The heat pump unit will be located on the north side of the structure, under a roof overhang. The unit has a sound level rating of 56 dB. According to the submitted engineer's calculations, based on the orientation and location of the unit, together with the sound barrier provided by the overhanging roofofthe structure, the sound level will decrease to 10.2 dB and 19.1 dB at the nearest western and eastern boundary, respectively. No other components of production are anticipated to produce sustained noise. Staff notes that 30 dba is the typical background noise level in aquiet residential neighborhood and, thus, the use would not be incompatible with surrounding residential uses. Staff also notes that the use is subject to Chapter 8.08, Noise Control. Specifically prohibited is: "Unreasonably Ioud or raucous noise"' means: A. Motor vehicle noise which is louder or heard for a longer period than that produced by use in direct transportation by motor vehicles with mufflers supplied by the manufacturer with the vehicle, which disturbs, injures or endangers the comfort, repose, health, peace or safety of persons 30 or more feet away, if such noise is not emitted in order to make the motor vehicle move up to the maximum speed limit on public streets, roads, and/or highways for the purpose of direct transportation; or 247'17-OD0845-CU.Bake/ Page 22 B. Noise, which violates the standards of the Environmental Quality Commission, adopted pursuant to ORS 467.030 which are not exempt under ORS 467.035 or permitted by a variance issued under ORS 467.060; C. The sounding of any horn or signaling device on any automobile, motorcycle, bus or other vehicle except as a reasonable signal required by the exigencies of vehicular or pedestrian traffic; the creation by means of any such signaling device of any sound which disturbs the sleep, peace, quiet, comfort or repose of other persons; the sounding of any such device for an unnecessary or unreasonable period of time; I. The use of any automobile, motorcycle or other vehicle so out of repair, so loaded, or in such a manner as to disturb the sleep, peace, quiet, comfort or repose of persons more than 30 feet away; J. The loading or unloading of any vehicle or the opening, closing or destruction of bales, boxes, crates and containers, so as to disturb the sleep, peace, quiet, comfort or repose of persons more than 30 feet away; 0. The operation of any blower, power fan, internal combustion engine, electric motor or compressor, or the compression of air, unless the sound from each machine is sufficiently muffled so as not to disturb the sleep, peace, quiet, comfort or repose of persons more than 30 feet away. Privacy: Staff finds that the structure is visually similar to typical residential accessory structures and agricultural structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks typically required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. The exterior siding and roofing material with not be changed with this proposal. Staff finds the combination of screening and buffering, due to the distance of 55 feet to the northern and 58 feet to the eastern property lines, will adequately mitigate any privacy concerns. Incompatibility with residential uses: Staff finds that this public concern, as well as concerns regarding potential impacts to property values, are secondary impacts that would result from one of the other identified primary impacts (e.g. noise, odor, etc.) resulting in an incompatibility with surrounding residential uses. Staff finds that there is no evidence in the record that the proposed use is likely to cause incompatibility with residential uses or impacts to property values, without first causing other identified primary impacts (e.g. noise, odor, etc.). Safety and crime: While this is a common neighbor concern for the proposed use, Staff finds that there is no evidence in the record that small-scale marijuana production increases crime in surrounding residential neighborhoods. Transportation Access Staff finds the property has direct access to a County maintained, public road, which is not a shared access. The proposed use is of a limited size and scale such that no traffic impacts are anticipated. No infrastructure deficiencies were identified by public agencies. Staff finds that there is no evidence in the record that the small-scale facility would generate a significant number of additional trips or ongoing heavy truck traffic. Staff also notes that the maintenance of the road is conducted by the County. 247 -17 -000645 -CU, Baker Page 23 Natural and Phvsical Features Based on staff's site visit and review of aerial photographs of the area, staff finds the surrounding lands to have similar characteristics as the subject property — generally level; moderately vegetated with sage brush and juniper trees; natural resource values that are Iimited to existing vegetation; no apparent natural hazards; and no unique or significant physical features. Given the low intensity of expected use, staff finds the proposed use will be compatible with the natural and physical features on surrounding lands, C. These standards and any other standards of DCC 18-128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: Staff finds the approval of the proposed marijuana production facility shall be subject to the conditions of approval set forth at the end of this decision. 2. Section 18.128.040. Secific Use Standards. A conditional useahaH comply with the standards of the zonin whicit is located and with the standards and conditions set forth in DCC 18.128.045 through DCC 18.128.370. FINDING: The proposed marijuana production facility is proposed within the MUA'10 Zone. The specific criteria for this zone have been reviewed above and the proposed use comp!ies with specific criteria of the MUA-1 0 Zone. IV. TRANSPORTATION SYSTEM DEVELOPMENT CHARGES: Board Resolution 2013-020 sets a trandevelopment charge (SDC) rate of $1,575 for the marijuana production (grow) facility. This is based on the County's SDC rate of $3,937 per p.m. peak hour trip. The SDC in this application will be triggered prior to 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. V. CONCLUSION: Based on the foregoing findings and conclusions, staff concludes that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. Other permits may be required. The applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Safety Division, the Deschutes County Environmental Soils Oivision, and the Deschutes County Road Oapartn)ent, as well as obtaining any required state and federal permits. VI. DECISION: APPROVAL, subject to the foliowing conditions of approval. 247 -17 -000645 -CU, Baker Page 24 VII. CONDITIONS OF APPROVAL: A. Use & Location: Marijuana production is conditionally approved inside the existing agricultural structure. This approval is based upon the epn1jmaUon. site plan, specifinations, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new conditional use application. ONGOING CONDITIONS OF APPROVAL B. Lighting: 1. Inside building lighting used for marijuana production shall not be visible outside the building from 7:OOp.m.to7:OU8.m.oOthe following day. 2. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing e|aFDnDt, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. 3. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. C. Odor: The proposed odor control system must prevent unreasonable interference of neighbors' use and enjoyment cfthoirproporty. The odorcontrol system shall be maintained in working order and shall be in use at all times. D. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and simitar functions shall not exceed 30 dB(A)measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. E. Security Cameras: If security cameras are used, they shall be directed to record only the nubieotpnopertyandpub/icr/ghts-Vfvvoy.exceptaorequiredtoconnp/yw/throqu/namentsof the OLCC or the OHA. F. Fencing: If fencing is used, it shall be finished in a muted earth tone and shall not be constructed of temporary materials such as plastic sheeting, hay bah*a, tarps, etc. G. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shaU be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing |owOs, 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 tand. H. Security Cameras: Security cameras shafl 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. I. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the controt of the OLCC licensee. J. Prohibited Uses: The uses listed inDCC 1811O33020) shalt be prohibited on the subject property so long asMarijuana Production is conducted on the site. Marijuana production is prohibited in any outdoor area. 247 -17 -000645 -CU, Baker Page25 K. Annual Reporting: The annual reporting requirements of DCC 19110.330KC0 shall be met. 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 nspect Fremises form: 1. Documentation demonstrating compllance with the: a. Land use decision and permits. U. Fire, health, safety, waste water, and building codes and laws. c. State of Oregon licensing requirements. 2. 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)(m) 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. 3. 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. 4. Marijuana Control PIan to be established and maintained by the Community Development Department. 5. Conditions of Approval Agreement to be established and maintained by the Community Development Department. 6. This information shall be public record subject to ORS 192.502(17) L. Residency: The resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, provided that the OLCC license applies to the subject property. VIII. DURATION OF APPROVAL: The Applicant shall obtain aU required permits and initiate the use within two (2) years following the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the Deschutes County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by; Cynthia Smidt, Associate Planner Reviewed eter GPlanning Manager 247 -17 -000645 -CU, Baker Page 26