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2018-101-Minutes for Meeting February 26,2018 Recorded 3/21/2018
Recorded in Deschutes County CJ2018-1 01 Nancy Blankenship, County Clerk 03/21/2018 2:47:43 PM Commissioners' Journal IIIIIIIIIIIIIIIIIIIII 2018-101 For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.or MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Allen Conference Room Monday, February 26, 2018 Present were Commissioners Tammy Baney, Anthony DeBone and Phil Henderson. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; Chris Ogren, Administrative Intern; and Sharon Ross, Board Executive Assistant. Several citizens and representatives of the media were in attendance. CALL TO ORDER: Chair DeBone opened the meeting at 1:34 p.m. ACTION ITEMS 1. Request to Re -Purpose Existing FTE Ken Hales, Community Justice Director presented this item for consideration. The request is to re -purpose 1.0 support staff FTE in Juvenile Justice to facilitate efficient case management and provide flexible response to changing business needs. Currently a number of staff are performing the duties required for electronic monitoring services. Mr. Hales would like to assign the responsibilities to one of the two administrative specialists but would cause them to work outside of their classification. This would reclassify an Administrative Support Specialist to a Community Justice Specialist — Minutes of Board of Commissioners' Work Session February 26, 2018 Page 1 of 8 Juvenile Field Services. One reason for this is because of increased automation of records and using more electronic monitoring. County Administrator Anderson supports this reclassification. Commissioner Baney commented on the skills within the department and the ability to utilize our staff resources. HENDERSON: Move approval BAN EY: Second VOTE: HENDERSON: Yes BANEY: Yes DEBONE: Chair votes yes. Motion Carried 2. January 2018 Treasurer's Report and Financial Reports Wayne Lowry, Finance Director presented the January treasurer's report. The portfolio balance at end of January was $185 million. The average yield is 1.60% and is the highest yield in quite some time. $11 million of investments were purchased in January. One recommendation of the Investment Advisory Committee was to add three more compliance metrics on the financial/treasurer's reports which are now reflected. Mr. Lowry reviewed the 75 vacancies in County departments with 20 vacancies in the Sheriff's Office with 14 in the Jail, 29.5 in Health Services, 7 in Community Development Department, 2 in Parole & Probation, 2 in Facilities, 3 at 9-1-1, and 2 at Road. The schedule of financial operating data for the departments were reviewed. 3. Discussion: Flood Plain Zone Amendments Matt Martin, Community Development Department reviewed the legislative amendments that were presented to the Planning Commission. The Board had requested time for review. Mr. Martin reviewed the materials in his staff report along with proposed amendments to Deschutes County Code. The intent was to convert the flood plain zone to a flood plain combining zone (overlay) and to align with industry standard. Other recommendations can be considered. An overview of the recommendations were presented and a request made to schedule deliberations. At the time of deliberations, Mr. Martin will have prepared a matrix for each of the chapters to provide options for consideration. Commissioner DeBone mentioned the riparian area management plan and testimony heard and commented on finding a definition of a true conversion of a zone to an Minutes of Board of Commissioners' Work Session February 26, 2018 Page 2 of 8 overlay. Commissioner Henderson would like to see a map identifying all affected properties. Commissioner DeBone noted this is a legislative process. Mr. Martin asked the GIS department to create a map to highlight the flood plain zones, and presented this to the Board. Approximately 2,500 affected property owners are in the current flood plain zone. Mr. Martin spoke on parcels and what is allowable in that zone. Commissioner DeBone inquired on the status of the record. Since it is legislative, written testimony is still allowable. Peter Gutowsky commented on scope and impact and explained the public process. There are heightened concerns around Lower Bridge. Commissioner Baney spoke on this lengthy process and feels affected property owners need clarification and asks if there a possibility for us to look at a two-step process. Discussion held on the best way to approach. Mr. Martin suggested highlighting the options that are more straight -forward. Commissioner Henderson suggested individual meetings with staff. Commissioner Baney requested a set date for deliberations. Deliberations will be scheduled for Monday, March 19tH 4. Possible Marijuana Production Appeal, 4725 NE Oneil Way, Bend Isabella Liu, Community Development Department reviewed the possibility of appeal of an administrative decision approving a marijuana production facility proposed by Swamp Fox Farm, LLC. The applicant proposes a two-story addition connecting the two existing accessory farm structures on the property to utilize one grow building for the use. The 150 -day period expires on April 28th at 5:00 p.m. Ms. Liu anticipates an appeal. Commissioner Baney inquired if the Board hears this appeal would it offer more clarity to the code. Commissioner DeBone commented on the need to collect the hearings officer fee. Discussion held on the Board's next step in the conversation of the marijuana regulation review. Commissioner Baney feels this application is complete and now looks to costs associated to staff and at what point do we want to transition. Commissioner Henderson spoke on the cost efficiency on whether the Board hears the appeal. Peter Gutowsky noted the need for a higher fee associated with administering marijuana applications. If the Board hears the appeal, the County does not recoup all costs. Mr. Gutowsky inquired if new applications should be charged the new fee. The fees today do not cover the scope of work of the department. Commissioner Henderson would be interested in seeing the report on noise and odor. Ms. Liu will forward that report to Commissioner Henderson. Commissioner Henderson requests to wait until Wednesday to make the decision on this hearing. Commissioner DeBone is leaning towards not having these come before the Board. County Administrator Anderson explained the hearing's officer fees and administrative decisions. Commissioner Baney suggested that any application received after today should require payment of the hearing's officer deposit. The Board discussed costs associated with hearing appeals or not. Minutes of Board of Commissioners' Work Session February 26, 2018 Page 3 of 8 CDD is planning to report back to the Board after the inspections occur in the next few weeks. The results of annual inspections would also be shared at that time. A regulation review could be the last week of March or first week of April. A tentative schedule would be individual meetings with the Board the second week of March and then a work session on March 19tH 5. Possible Marijuana Production Appeal, 65325 Highway 20, Bend Ms. Liu reviewed this application for marijuana production and the applicant is requesting a setback variance, and proposal of five greenhouses. The setback request is for 60 feet. The greenhouse design is for hoop houses. No appeal has been filed but staff considers an appeal is likely based on public comments. Commissioner Henderson has the same interest of reviewing the mechanical engineer's report. Commissioner DeBone noted interest in hearing the appeal based on the setback variance request. Commissioners Baney and Henderson supports hearing the appeal as well. BANEY: Move approval of Order No. 2018-013 HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried 6. Preparation for Public Hearing: Appeal of a Marijuana Production Decision at 25890 Alfalfa Market Road Jacob Ripper, Community Development Department presented materials in preparation for the public hearing on a proposed marijuana production facility. The applicant requests setback exemptions for structures from the eastern property line. The mechanical engineer's report was detailed. The applicant proposes natural odor mitigation. Commissioner DeBone inquired on the setbacks and as administrative decisions come through it is important to have clarity. Commissioner DeBone inquired on the canopy size and tier system. The Oregon Liquor Control Commission (OLCC) has a tier system license. The hearing is scheduled for Wednesday, February 28. Minutes of Board of Commissioners' Work Session February 26, 2018 Page 4 of 8 7. Determination of Whether to Hear the Applicant's Appeal of a Hearings Officer's Decision Will Groves, Senior Planner, Community Development Department presented the item for consideration. This is an appeal of a hearing's officer decision to allow further development of Snow Creek Ranch subdivision. Mr. Groves reviewed the history of the home sites. The hearings officer had found a number of points of denial. There was a concern on the limits of the amount of houses. There are significant amount of impact found including fire access hazard. The applicant request is for the Board to hear limited de novo. Staff noted in their recommendation there are a mix of issues. Mr. Groves reviewed the map of lots. If the Board does not hear, it will go to LUBA. If the Board does hear it, it will likely go to LUBA. Commissioner DeBone is leaning toward not hearing. Commissioner Henderson noted he has not read the information yet and requests to make the decision to hear or not hear on Wednesday. Commissioner Baney commented if hearing it then it should not be limited de novo. RECESS: A short recess was taken at 3:23 p.m. and the meeting was reconvened at 3:29 p.m. OTHER ITEM: • Commissioner DeBone gave an update on the letter he is drafting to bring to the NACO Legislative Conference next week regarding public lands management. He had requested input from Senior Advisor Joe Stutler and County Forester Ed Keith and they provided response on forest management. This letter would come for consideration and review before Wednesday's Work Session. 8. Preparation for Wednesday Discussion: 9-1-1 Radio Project/Harris Corporation Steve Reinke, 911 Operations Director and Bend Police Chief Jim Porter were present. Commissioner Henderson asked to provide additional comment to the draft list of questions to present to Harris Corporation. Commissioner DeBone noted the importance of public safety and the need for clarity for expectations of technology. Mr. Reinke spoke on the anticipated benefits of having the additional towers. There are Minutes of Board of Commissioners' Work Session February 26, 2018 Page 5 of 8 issues with coverage and dropped transmissions. Mr. Reinke reviewed transmissions and technical concerns. There has not been a good explanation received as to why that is occurring. Chief Porter commented there are reports of problems on the west side and that this responsibility is on Harris with the main system. Chief Porter reported a system in Texas which also experienced the same technical issues with the Harris system. Commissioner Baney has question on whether the people coming to the Wednesday meeting would be at the decision level as she expressed the expectation of a deadline of resolution from Harris and for the public safety personnel as well. Chief Porter commented on the loss of credibility with line officers and also requests that Harris ensures the system issues will be resolved. Discussion held on the expected time frame. Coordination needs to also be done with the state. Commissioner DeBone spoke on being partners with the state and empowered the Board to feel comfortable to move forward with this agreement. Mr. Reinke asked Joe Blaschka, Principal Consultant for Adcomm Engineering to join the discussion via telephone to review expectations to be requested of Harris Corporation. Mr. Blaschka spoke on the technical difficulties of the old system and coverage differences with analog verses digital systems. Chief Porter intends to send two staff from Bend Police Department to Texas to review the system and issues they have encountered. Commissioner Baney inquired if the County should send staff as well. Discussion held on various other systems in place in the country for other Harris customers. Mr. Blaschka also spoke on the tower sites and the terrain complications. Commissioner Baney inquired on a reasonable timeline for clarity from Harris on the tower site and punch list. Mr. Blaschka spoke on the issues of transmissions affecting coverage in the various communities and expectations of acceptable level for transmissions. County Administrator Anderson inquired how soon the temporary tower could be in operation. Mr. Reinke noted there is a site review scheduled for Wednesday. The condition of the state's portable trailer unit is that it is full of mold. Commissioner Baney stated this is a public safety issue and whatever the Board needs to do to help move barriers. Commissioner Baney inquired if there were industry standards to deploy a radio system. Mr. Reinke also asked on licensing for the temporary site. Mr. Blaschka explained FCC licensing could be less than 30 days if declaring an emergency. Discussion held on the locations and coverage ability of the additional sites. The Jack Pine location would cover the backside of Awbrey Butte and the rural area but doesn't cover the highway that goes to Mt. Bachelor. Once the site is reviewed and determined on Wednesday it should go very quickly now that there is data to support that decision. Minutes of Board of Commissioners' Work Session February 26, 2018 Page 6 of 8 Commissioner DeBone inquired on the logistics of the conversation for Wednesday's Work Session. Mr. Reinke will start with history and background prior to the questions. Commissioner Baney suggests to afford Harris the opportunity to report. Commissioner DeBone suggests to start with their experience with these systems around the country. County Administrator Anderson suggested also contacting the City development department for permitting for the tower. The 9-1-1 User Board is also invited to the discussion. Commissioner DeBone asked Chief Porter to meet with him tomorrow to examine the transmission issues. County Administrator Anderson will send out a final script for Wednesday's work session. COMMISSIONER REPORTS: • Commissioner Baney attended a meeting in Portland regarding suicide prevention called Lines for Life. • Commissioner Henderson will try to attend the AOC housing committee meeting on Friday. EXECUTIVE SESSION: At the time of 5:04 p.m., the Board went into Executive Session under ORS 192.660 (2) (d) Labor Negotiations. The Board came out of Executive Session at 5:23 p.m. OTHER ITEMS Continued: County Administrator Anderson reported on a communications concern. During a budget preparations meeting there is a discussion of the reproductive health services program. This service within our Deschutes County Health Services department provides education on reproductive health. There are no compelling reasons for the county to provide those services with non -profits to provide that service to the community. The mention of shutting down the clinic tentatively by July 1st has leaked out to the media that the clinic will be closed. Health Services have devised talking points as response. County Administrator Anderson wanted the Board to be aware of this situation as it all happened within a day. Commissioner Baney commented through modernization of public health with expansion of access and different community providers many counties have gotten out of that type of service. Minutes of Board of Commissioners' Work Session February 26, 2018 Page 7 of 8 At the time of 5:27 p.m., Commissioner Baney was excused for another scheduled meeting. At the time of 5:27 p.m., the Board went into Executive Session under ORS 192.660 (2) (d) Labor Negotiations. The Board came out of Executive Session at 5:35 p.m. ADJOURN: Being no further discussion, the meeting adjourned at 5:35 p.m. DATED this / Day of 0 C 2018 for the Deschutes County Board of Commissioners. Anthony DeBone, C air p Minutes of Board of Commissioners' Work Session February 26, 2018 Page 8 of 8 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, MONDAY, FEBRUARY 26, 2018 Allen Conference Room - Deschutes Services Building, 2ND Floor — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. Request to Re -Purpose Existing FTE - Deevy Holcomb, Senior Administrative Manager 2. January 2018 Treasurers Report and Financial Reports - Wayne Lowry, Finance Director/Treasurer 3. Discussion - Flood Plain Zone Amendments - Matthew Martin, Senior Planner 4. Possible Marijuana Production Appeal, 4725 NE Oneil Way, Bend - Isabella Liu, Associate Planner 5. Possible Marijuana Production Appeal, 65325 Highway 20, Bend - Isabella Liu, Associate Planner 6. Preparation for Public Hearing: Appeal of a Marijuana Production Decision at 25890 Alfalfa Market Road - Jacob Ripper, Associate Planner 7. Determination of Whether to Hear the Applicant's Appeal of a Hearings Officer's Decision - William Groves, Senior Planner 8. Preparation for Wednesday Discussion: 9-1-1 Radio Project/Harris Corporation Board of Commissioners Work Session Agenda Monday, February 26, 2018 Page 1 of 2 COMMISSIONER'S UPDATES EXECUTIVE SESSION Executive Session under ORS 192.660 (2) (d) Labor Negotiations 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. OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.o[g/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Monday, February 26, 2018 Page 2 of 2 Q 17 i I � I i C E �) I � a N Q) 1� CL 0 v a Q 17 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 DATE: February 16, 2018 FROM: Deevy Holcomb, Juvenile Community Justice, 541-322-7644 TITLE OF AGENDA ITEM: Request to Re -Purpose Existing FTE RECOMMENDATION & ACTION REQUESTED: Review and approve re -purpose of 1.0 support staff FTE to facilitate efficient case management and flexible response to changing business needs. ATTENDANCE: Ken Hales and Deevy Holcomb. SUMMARY: Changing business needs and priorities necessitate a more flexible support staff structure to facilitate efficient case management, and free up case management staff to work directly with youth while also maintaining records management and front office duties. We request the re -purpose of 1.0 FTE Administrative Support Specialist to 1.0 FTE Community Justice Specialist - Juvenile Field Services, an approximate $7,000 increase to personnel budget funded through existing personnel savings this fiscal year. Deschutes County Community Justice Department J. Kenneth Hales, Director Memorandum Date: February 13, 2018 To: Deschutes Count o< -d of County Commissioners From: J. Kenneth Hale Re: Community Justiec pecialist Reclassification Request On the Board Work Session agenda for February 21 is a request to reclassify one administrative specialist position to a community justice specialist position. Fiscal impact is approximately $7,000 annually. Expense covered by existing funds. Currently community justice officers (CJO) conduct ancillary duties that are appropriate for a position with a lower salary grade assignment to perform. These duties often interfere with a CJO carrying out specific duties necessary to achieve priority outcomes. Additionally, increased use of electronic monitoring by juvenile court has resulted in a demand on adult parole & probation division specialists to go off site to service juveniles assigned to electronic monitoring. The department proposes to alleviate the need for parole & probation specialists to service juveniles on electronic monitoring, and to increase CJO efficiency by assigning a set of ancillary duties to a community justice specialist; while at the same time maintaining the necessary level of administrative support in the juvenile division front office. Doing this requires reclassifying an administrative specialist. The duties performed by the community justice specialist that are outside the scope of an administrative specialist include, but are not limited to the following. • Managing juvenile electronic monitoring, hooking up and removing devices, ensuring vendor tracking and monitoring is consistent with court orders or department directives, receiving electronic monitoring reports and notifications from the vendor and notifying the responsible party, responding to equipment failure or false positive results. • Assist with juvenile transports. Although the department used a contracted vendor for many transport needs, particularly out of town transports, there is often need for more transport assistance. Sometime secure transport sometime non -secure, sometimes scheduled often unscheduled. ■ Field contact with parents to update court and department documents. Juvenile Community Justice 63360 NW Britta Street, Building 1 Bend, OR 97701 (541) 388-6671 Adult Parole and Probation 63360 NW Britta Street, Building 2 Bend, OR 97701 (541) 385-3246 Phone ■ Co -facilitate competency groups. Currently a trained behavioral health specialist Il or CJO will lead the group assisted by another CJO. The individual selected for the repuiposed FTE will continue to have a desk and presence in the front office to provide back up support during busy times, breaks, or vacations. Over the past couple of years, the department has created efficiencies, and interdivisional administrative support and cross -training providing for more back up coverage and sharing of duties not available in the past. We believe that reclassifying one of the administrative support specialist positions will continue to provide the necessary administrative support needed, with added flexibility of caseload support identified as an emerging and enduring business need. Thank you for your consideration of this request. DATE: Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 FROM: Wayne Lowry, Finance, 541-388-6559 TITLE OF AGENDA ITEM: January 2018 Treasurers Report and Financial Reports RECOMMENDATION & ACTION REQUESTED: Discussion of January 2018 Treasurers Report and Financial Reports ATTENDANCE: Wayne Lowry, Finance Director/Treasurer SUMMARY: Monthly Report @a@@@ate CR cl �§mn� oonoo==� oo«oon�■ ogRRRR=� a=noor�� 7g4\� Lf) Lir) @ RK $-(0Q U) } k 22]$$ 3Z a§ ®� )» U') . k§k to aE°)/&�) At= §3/5ƒ\L� co w CDw ° 0 E y vi cv! I t � o _ ]]» N § f a. 2 % m � ■ § kco �k -co 0$ § ®� A01Vt 2 U Q . 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Aa2 1,718' 1.259 1,000,000 999,560 92 1,001,4- 939307HF4 Hillsboro S D Pension Bonds PJ 3/30/2015 6130/2018_ 149 Aa3 1.732. 1,650 985,000 984,212 985,322 - - 938429M46 Washington CounlySD Municipal PJ 91612018- 6/3012018 149 .Aa3 1,585 0.999- 250,000 249,743. 250,598 84247PHT1 Southern CA Public Power Autho CASTLE 12/19/2017 7/1/2018 150 AA- 1.728 1.779 2,510,000 2,508.343 2.509.471 3135GOL43 Federal National Mig Assn CASTLE 12/1312018_ 7/13/2018 162 AA+ .Aaa 0.850 1.221 1,000,000 996,620 1,000,000 4/13/2018 88059EMT8 Tennessee Valley Authority DA DAV 2/22/2016 7/1512018_ 164 1.021 1.065_ 500,000 495,550 497,674` - 3133EGNU5 .Federal Farm Credit Bank CASTLE 8/1/2016 7/27/2018 1761AA+ Aaa 0.960 0.960 1,000,000 995,950 1,000,000 3134G9Q67 Federal Home Loan MIg Corp CASTLE 7/27/2016, 712712018 176 AA+ Aaa 1.050 1,050 3,000,000, 2,990,790 3.000,000. 4/27/2018 934876AGO Port of Newport OR Lease DA DAV 3/27/2017: 8/1/2018 181 AA 4 500 1 450 610,000 617.393 619,174 • - 842400FJ7 Southern Cal Edison CASTLE 5/26/2017 8/15/2018 195 A 5.500 1.520. 2,000,000 2,036,240, 2,042,318 - 65371AU2 Oceanside California Pension CASTLE 1/27/2017 6/15/2018 195 AA .Ao3 2.298 1.551 1,0501000 1,854,052. 1,857,332 - 544351KMO Los Angeles Calif Go Rof Ods PJ 12/2112016 9/112016 212 AA2 1.210 1.209 1,000,000 995,780 1,000,000 - - 3134GAKFo Federal Home Loan Mlg Corp .CASTLE 10/18/2016 9/12/2018 223 AA+ Asa 1.110 1.110 3,000,000. 2,988,720 3,000,000 3/12/2018 3134G8UN7Federal Home Loan Mig Corp _ CASTLE 3/30/2016 9/26/2018 239 AA+ 'Aaa 1..200 1.200 2,000,000. 1,991,000 2,000,000 3128/2018 3134G9YA9 Federal Home Loan Mlq Corp CASTLE 612.812016 9128!2018 239 AA+ Aaa 1.010, 1.000 2,520,000 2,507,299. 2,520,0D01 3128/2018 3134GAND3 Federal HOMO Loan Ml9 Corp CASTLE 9l28f2018 9/28/2018, 239 AA+ Aaa -Aaa 1.050 1.050_ 4,000,000 3.980,240 4,o00,OD0, - - 3133EFJP3 Federal Farm Credit Bank CASTLE 11/4/2016 10/15/2018 256 AA+ 1.100. 1.100 5,000,000. 4,972,900 5,000,000 • - 3136G2PZ4 Federal National Mtq Assn -CASTLE 5122/2017 10/20/2.018 770 AA+ Aaa 1,190 1.340 5,000,000 4.974,950 5,000.000. 4/29/2018 912820WD8 U.S. Treasury CASTLE 1211/2015 10/31/2016 272 AAA Aaa 1.250 1.223 1,000,000 995,66D 1,000,200, • - 912828T83 U.S. Treasury CASTLE 12/14/2016 10/31/2018 272 AAA Aaa 0.750 1.155 3,000.000 2.976,450 2,991,079 - 31771KAJ6 FICO Strip CASTLE 9/2812017 11/212018 274 1,460 1.520 5,000,000 4,929,900 4,944 436 912833KT6 U.S. Treasury CASTLE 1111/2018 11/15/2018 287 1.757 1,827 2,000,000 1,969,300 1,971,990 - 427542KX2 HOrmislon OR DA DAV 9/21/2016 12/1/2018 303 3.000 1.001 605,000 612,091 614,946. - - 0605GTME9 ofAmenca- Cofpwale :CASTLE, 5/16/2017 121/12018. ,AA. 369. A+ Al 2.050- 1.700. 3,180,000.. 3,177,933 3,189,280 - - 31771EAN1 ,Bank FICO Strip CASTLE 11/3/2016_ 12/27/2018_ 329 _ 0.984 1.025 1,000,000 983,280 991,007 - 912828A75 U,S. Treasury 'CASTLE 6/8/2015 12/31/2016 333 AAA ,Aaa 1:500 1.324 1,000.00D 996,210 1,001,559. 3137XONJ6 Federal Agriculture Mtg Carp CASTLE 5/1/2017 1/23/2019 356 1.270 1.400 3,000,000, 2,980,170 2,996,231 - - 912833KU3 U.S, Treasury Strips CASTLE 1/29/2018 2/15/2019 379 1.913 1.997 2,000,000 1,958,780 1,959,719 - - 20271RAF7 Commonwealth SKAusirNY CASTLE 9118/2017 3113/2019 405AA- Aa3 2.250 1.720 2,600,000 2,596.698 2,615,121. - - 66607V571 Oregon State Lottery CASTLE 4/5/2017 4/1/2019 424 Aa2 1.602 1.581 1,000,000 986.310 1,000,246 - - 459058FC2 International Bonds for Recons CASTLE 12/15/2016 4/26/2019 449 AAA Aaa 1.250 1.500 2,000.000 1,977,580 2,000,000 - 90331HMY6 US Bancorp CASTLE 12/22/2017 4/26/2019 449AA- At 1.400 2.000, 1,000,000 989,770 992,709 3/28/2019 9052-DEAF8 MUFG Union Bank CASTLE 12/6/2017 5/6/2019 459A A2 2250 2185, 1,352.000 1,348,174 1,353.077. 416/2019 G6406HBM0 Bank of New York Mellon Corp CASTLE 11/15/2017 5/15/2019 468 A At 5.450- 1950. 1,000.000 1,038,770 1,044,243. - 250351FJ7 Deschutes County Ore SchDist !PJ SM6/2.0t6, 6115/2019, 499, AA1 1.360 1.360, 245.000 241,185 245,000 - - 938429866 Washington County SD Municipal IPJ 5/11/2017 6/15/2019 499 AA+ Ant 1.488, 1.488 400,000, 396,104 400,000, 3137EAB1 Federal Home Loan Mtq Corp CASTLE 7/20/2016 7/19/2019, 533 AA+ Aaa 0.875. 0.957 1,000,000. 982,660 998,816. - 13034PZD2 CALIFORNIA ST HOUSING FINAN CASTLE 11/2/2017 8/1/2019 546,AA, 'At 1.952 1.850 1,070,000. 1,063,002 1,071,589 3135GON33 Federal National Mtg Assn CASTLE 811812016 8/7/2019. 547AA+ Aaa 0.875 1.000 1,000,000 981,920' 998,149 - 06406HCW7 i Bank of Now York Mellon Corp CASTLE 11/3/2016 9/1112019 587 0 Al 2.300, 1,532 1,675,000, 1,672,303, 1,694.717 8111/7.019 48125LRJ3 IJPMorgan Chase • Corporate N CASTLE 4110/2017 9/23/2019, 599 A+ Aa3 2.264, 1,866_ 3,000,000 3,020,430 3,014,617. 812312019 48125LRG9 JI'Morgan Chose - Corporate N CASTLE 612812017 9/2312019 599 A+ Aa3 1.650 1.840 1,300.000 1,283,097 1,296.078 812312.019 313586RC5 National Mtg Assn CASTLE 12/4/2015 10/9/2019 615 AA- 1,891 _ 2.031 1,400,000, 1,345,778_ 1,354,775. - - 313586RC5 _Federal Federal National Mig Assn 3/17/2016 10/9/2019 615 1.665 1.774 600,000 576,762_ 582,934 313566RC5 -Federal National Mig Assn -CASTLE 81812016 10/9/2019 .AA. 615.AA• 1,252 1.318 400,000 384,508 301.444' - 313586RC5 National Mig Assn _CASTLE CASTLE 11/22/2017 10/912019. 615 AA- _ 1 928. 2.030, 3,600,000 3.460.572. 3481,425_ 76116FAA5 ,Federal RFSCP STRIP PRIN CASTLE 9/21/2017. 10/15/2019 621 1,499 1.572 1,OOD,000 963,830 974,147 313500R39 Federal National Mig Assn CASTLE 11/1012016 10/24/2019 630.AA+ Aaa 1.000 1.173 2,000,000 1.961,420, 1,994,145, - - 91282062 U.S, Treasury CASTLE 10/11/2016 10131/2019 637 AAA Aaa 1.500 1.008 2,000,000 1,978,900 2,016,871 961214BKO 'Westpac CASTLE 8130/2017 11/19/2019 656 AA- Aa3 4.875 1.826 2,000,000 2,082,620 2,107,054 912828695 U.S. Treasury PJ 1/16/2018 12/31/2019 698 1.625 2.000 2,000,000 1,980,620 1,985,999 - - 94988.151.7 Wells Fargo Corporate Note CASTLE 1/23/2018 1115/2020 713 Aa2 2.400 2.444 3,000,000 2,993,340 2,997,508 • - 594916AY0 Microsoft Corp CASTLE 8/8/2016 2/12/2020 747 AAA ;Aaa 1.850 1,298 1,000,00D 992,160 1,010,930. 1/12/2020 13063GSO4 California St VINISP 9/21/2017 4/1/2020 790 AA. Aa3 1,600 1 800 780,000 771,350, 780,000; • - 3134GBNK4 Federal Home Loan Mtq Corp CASTLE 711312017 5/29/2020 848 Aaa 1-025' 1,671 3,000,000 2,956,580 2,997,242 5/2912019 666053CK3 Oregon School Boards Assoc CASTLE 3/15/2017 6/30/2020 880 AA. Aa2 2063 2 149 1,000,000, 934,830. 950,272 - - 569203MA7 Salem-Keizor School District CASTLE 7/26/2017. 6/30/2020 880 Aa2 2.107 1.778 2,310,000, 2,283,805 2,327,6744 686053DH9 ,Oregon School Boards Assoc DA DAV 11/2/2015, 6130/2020` 880,AA ,Aa7 5.373 2.050 875,000, 931,018, 941,599 686053DH9 .Oregon School Boards Assoc CASTLE 6/24/2016. 6/30/2020' 880.AA Aa2 5.373_ 1.570 500.000 532,010, 544,312 - - 94974BGM6 ';Wells Fargo Corporate Note , PJ 1/19/20171 7/22/2020 902 A A2 2.600 2.350. 1,000,000, 999,220.. 1,005,905. - - 940093R25 Washington Univ Higher Ed IPJ 1/1912011 101112020, 973 Aa2 5.930 1.970 400,000, 434,156. 440,533, - 492244DV7 Korn Community College CASTLE 1111512016' 11/112020, 1004,AA• 2.893, 1.800. 500.000 503,665. 514,440, - - 3134GBX56 Federal Home Loan Mtq Corp CASTLE 12/13/2017 11/24/2020 1027 AA+ Aaa 2.250, 2172- 3,000,000 2,990,790 3,004,632, 5124/2018 3134GBJ113 Federal Homo Loan Mlq Corp CASTLE 1212712017` 2117!2021 1112*AA+ Ass 1,000 2.547 2,000,000 1,996,080, 1,999.546, 211712018 3136G4NN9 Federal National Mig Assn ',CASTLE 10/18/2017. 5/24/2021 1208�AA+ 2.000' 2.000. 1,080,000 1,061,856. 1,080,000 2/24/2018 .Local Govt Investment Pool ,Aaa 1.85D� 1,850'. 43,535,636 43,535,636. 43,535,636, - Bonk of the Cascades 1.850 1,850' 597,518 597,518 597,518 - - Totals 185,902,797 185.230.146. 186,003.763 General Fund Schedule of Financial Operating Data Year to Date July 1, 2017 FY 2017 through January 31, 2018 FY 2018 (58% of the year) Revenues Actual Actual Budget Budget Projected Variance Property Taxes - Current $ 25,816,331 $ 24,995,958 95% a) $ 26,296,000 $ 26,600,000 $ 304,000 Property Taxes - Prior 465,085 365,998 105% 350,000 385,000 35,000 Other General Revenues 2,499,968 2,257,620 96% b) 2,345,822 3,095,822 750,000 Assessor 860,861 676,449 80% c) 848,867 898,867 50,000 County Clerk 1,952,209 992,721 52% 1,896,945 1,896,945 - BOPTA 12,546 10,052 81% c) 12,480 13,000 520 District Attorney 253,480 27,603 15% 187,400 187,400 - Tax Office 196,203 159,276 81% c) 196,200 206,200 10,000 Veterans 96,889 81,112 50% 162,223 162,223 - Property Management 94,500 9,750 10% 97,000 97,000 - Total Revenues 32,248,072 29,576,537 91% 32,392,937 33,542,457 1,149,520 Expenditures Assessor 3,993,958 2,435,626 57% 4,291,041 4,291,041 - County Clerk 1,684,783 811,339 45% d) 1,820,344 1,800,344 20,000 BOPTA 65,175 38,798 57% 68,138 68,138 - District Attorney 6,095,393 3,653,134 55% d) 6,701,724 6,651,724 50,000 Medical Examiner 146,817 76,679 45% 172,184 172,184 - Tax Office 785,346 464,742 55% 849,312 849,312 - Veterans 403,775 264,025 54% 492,630 492,630 - Property Management 247,568 148,354 54% 276,097 276,097 - Non -Departmental 1,268,363 739,761 56% 1,328,089 1,328,089 - Total Expenditures 14,691,178 8,632,458 54% 15,999,559 15,929,559 70,000 Transfers Out 17,856,310 9,538,711 55% 17,445,890 17,445,890 - Total Exp & Transfers 32,547,489 18,171,169.44 54% 33,445,449 33,375,449 70,000 Change in Fund Balance (299,416) 11,405,367 (1,052,512) 167,008 1,219,520 Beginning Fund Balance 11,217,374 10,917,957 109% 10,000,000 10,917,957 917,957 Ending Fund Balance $ 10,917,957$ 22,323,325 $ 8,947,488 $ 11,084,965 $ 2,137,477 Personnel 9,965,553 6,137,230 57% 10,841,612 Material & Services 4,544,700 2,488,822 49% 5,030,152 Capital Outlay 180,925 6,406 64% 10,000 Total Expend by Category $ 14,691,178 1 $ 8,632,458 54% 15,881,764 a) Historically, 92% of the current year taxes are received by the end of January. b) Includes $500,000 Federal PILT. HB 3400 not incuded in budget. $365,655 received in October and $76,991 in December Projected is YTD actual plus two more quarters at $76,991. Other revenues in excess of budget are: MH tax $70,000; interest $45,000; tax on electrical co-ops $34,000; and property tax PILT $14,000. c) A & T Grant received quarterly. Q1 received July; Q2 received October; Q3 in January. d) Projected to be less than budgeted due to YTD unfilled positions. Page 1 Community Justice- Juvenile Schedule of Financial Operating Data FY 2018 Projected I Variance Revenues Year to Date July 1, 2017 through FY 2017 January 31, 2018 (58% of the year) $ 355,586 $ 209,454 % of Actual Actual Budget FY 2018 Projected I Variance Revenues OYA Basic & Diversion $ 355,586 $ 209,454 61% a) $ 346,046 $ 407,113 $ 61,067 ODE Juvenile Crime Prev 86,497 42,274 59% a) 71,982 91,379 19,397 Leases 84,121 50,299 59% b) 85,000 77,000 (8,000) Inmate/Prisoner Housing 74,700 43,800 80% c) 55,000 70,000 15,000 DOC Unif Crime Fee/HB2712 36,045 17,747 48% 36,658 36,658 - Food Subsidy 18,744 11,597 58% 20,000 20,000 Gen Fund -Crime Prevention 20,000 10,000 50% d) 20,000 20,000 - Interest on Investments 17,512 11,362 76% h) 15,000 19,000 4,000 OJD Court Fac/Sec SB 1065 18,438 12,611 74% c) 17,000 21,600 4,600 Contract Payments 10,920 4,120 52% 8,000 8,000 - Case Supervision Fee 5,964 3,923 65% c) 6,000 7,000 1,000 Miscellaneous 3,170 2,177 118% g) 1,850 3,000 1,150 Total Revenues 731,697 419,364 61% 682,536 780,750 98,214 Expenditures Personnel Services 5,005,247 3,002,622 57% e) 5,313,863 5,240,000 73,863 Materials and Services 1,204,317 685,503 57% 1,198,996 1,198,996 - Total Expenditures 6,209,564 3,688,125 57% 6,512,859 6,438,996 73,863 Transfers Transfers In -General Fund 5,464,591 3,265,292 58% 5,597,643 5,597,643 - Transfers Out-Veh Reserve 44,000 34,500 50% f) 69,000 69,000 - Total Transfers 5,420,591 3,230,792 58% 5,528,643 5,528,643 - Chapge in Fund Balance (57,276) (37,970) (301,680) (129,603) 172,077 Beginning Fund Balance 1,415,374 1,358,098 113% 1,200,000 1,358,098 158,098 Ending Fund Balance 1,358,098 1,320,128 898,320 1,228,495 330,175 a) Grant was increased by legislature subsequent to budget adoption. b) Rimrock Trails no longer leasing space. c) Inmate housing trending at greater than budgeted d) Internal grant funded quarterly e) Projection decreased due to staff vacancies in Q1 and new hires who started at a lower salary step range in beginning of fiscal year. Includes expected Class/ Comp increase and a retirement leave payout f) Transfer to Reserve includes $25,000 to cover estimated costs of vehicle repair and maintenance. g) Projection increased due to additional actual revenue received related to community service projects, vehicle auction, etc. h) Projection based on annualizing year to date. Page 2 Sheriff's Office and LEDs Schedule of Financial Operating Data a) Historically, 92% of the current year taxes are received by the end of January. b) $25,000 contribution to suicide/substance abuse hotline. Open Civil Tech position in Civil/Special Units division reclassified as HR Analyst In Sheriff Services division c) Unfilled FTE. Overtime is expected to exceed budget. d) Open Records Admin Supervisor position will be converted to a Sergeant position. e) Projection includes $8,000 reimbursement for Solar Eclipse expenditures. f) Grant of $50,000 for purchase of $67,500 boat. g) Projection increased due to an unbudgeted rifle purchase. h) Projection includes unfilled FTE, increase in overtime, increased expenditures related to new K-9, and cost savings on web licensing. Anticipated overtime makes up 56% of adjusted projection expenditures. I) Projection includes unfilled FTE, increase in overtime, increase in medical expenses for one inmate, and increase in miscellaneous M&S expenditures. Temp medical director cost increased due to unfilled position. j) Year to date expenditures are 55% of budget. Projection shows that expenditures will be $232,767 more than budgeted. Additional appropriation (authority to expend) may be required. Page 3 Year to Date July 1, FY 2017 2017 through January FY 2018 31, 2018 (58% of the year) 00 Actual Actual Budget Budget Projected Variance Revenues LED #1 Countywide Property Taxes Current Year $ 21,137,803 $ 20,946,793 95% a) $ 22,045,228 $ 22,350,000 $ 304,772 Prior Year 308,837 263,240 66% 400,000 400,000 - Interest 110,368 75,688 95% 80,000 100,000 20,000 Total LED #1 Countywide 21,557,009 21,285,721 94% 22,525,228 22,850,000 324,772 LED #2 Rural Property Taxes Current Year 9,474,144 9,383,055 95%a) 9,916,642 10,014,000 97,358 Prior Year 141,704 119,243 64% 185,000 185,000 - Interest 90,261 61,382 100% 61,300 90,000 28,700 Total LED #2 Rural 9,706,109 9,563,680 94% 10,162,942 10,289,000 126,058 Sheriffs Office Revenues 8,249,855 4,385,421 59% e) f) 7,386,585 7,444,585 58,000 Total Revenues 39,512,973 35,234,822 88% 40,074,755 40,583,585 508,830 Expenditures Sheriff's Services 2,386,420 1,568,954 58% b) 2,689,023 2,750,737 (61,714) Civil/Special Units 1,117,489 821,505 61% b) 1,352,886 1,303,939 48,947 Automotive/Communications 2,601,537 1,126,712 45% 2,481,701 2,481,701 - Detective 1,796,143 1,122,847 56% 1,995,351 1,995,351 - Patrol 8,822,794 5,417,892 56% h) 9,724,673 9,715,876 8,797 Records 695,956 396,420 52% d) 761,258 806,258 (45,000) Adult Jail 16,236,326 9,662,048 55% 1) 17,488,887 17,609,682 (120,795) Court Security 270,173 280,302 68% c) 410,659 392,161 18,498 Emergency Services 284,009 201,270 53% e) 379,092 387,092 (8,000) Special Services 1,500,791 1,025,530 66% f) 1,543,848 1,611,348 (67,500) Training 590,962 421,878 64% g) 654,646 667,246 (12,600) Other Law Enforcement Services 904,547 487,367 52% c) 935,144 928,544 6,600 Crisis Stabilization Center - 32,664 6% 558,424 558,424 - Non -Departmental 112,846 1,211 58% 2,077 2,077 - Total Expenditures 37,319,993 22,566,601 55% j) 40,977,669 41,210,436 (232,767) Revenue less Expenditures 2,192,980 12,668,221 (902,914) (626,851) 276,063 Beginning Balance 11,225,692 13,418,672 121% 11,113,000 13,418,672 2,305,672 Ending Balance $ 13,418,672 $ 26,086,893 $ 10,210,086 $ 12,791,821 $ 2,581,735 a) Historically, 92% of the current year taxes are received by the end of January. b) $25,000 contribution to suicide/substance abuse hotline. Open Civil Tech position in Civil/Special Units division reclassified as HR Analyst In Sheriff Services division c) Unfilled FTE. Overtime is expected to exceed budget. d) Open Records Admin Supervisor position will be converted to a Sergeant position. e) Projection includes $8,000 reimbursement for Solar Eclipse expenditures. f) Grant of $50,000 for purchase of $67,500 boat. g) Projection increased due to an unbudgeted rifle purchase. h) Projection includes unfilled FTE, increase in overtime, increased expenditures related to new K-9, and cost savings on web licensing. Anticipated overtime makes up 56% of adjusted projection expenditures. I) Projection includes unfilled FTE, increase in overtime, increase in medical expenses for one inmate, and increase in miscellaneous M&S expenditures. Temp medical director cost increased due to unfilled position. j) Year to date expenditures are 55% of budget. Projection shows that expenditures will be $232,767 more than budgeted. Additional appropriation (authority to expend) may be required. Page 3 Revenues State Grants OHP Capitation Administrative Fee Environmental Health Fees State - OMAP Federal Grants Patient Fees Local Grants Local Government payments Title 19 State Shared -Family Planning State Miscellaneous Liquor Revenue Divorce Filing Fees Interfund Contract -Gen Fund Vital Records Interest on Investments Other Total Revenues Expenditures Personnel Services Materials and Services Capital Outlay Total Expenditures Transfers Transfers In -General Fund Transfers Out Total Transfers Change in Fund Balance Beginning Fund Balance Ending Fund Balance Health Services Schedule of Financial Operations Data FY 2018 Budget I Projected I Variance $ 13,186,170 Year to Date July 1, 47% a) e) 2017 through FY 2017 January 31, 2018 9,950,347 (58% of the year) 38% b) 11,044,000 00 Actual Actual Budget FY 2018 Budget I Projected I Variance $ 13,186,170 $7,344,001 47% a) e) $15,632,177 $16,835,653 $1,203,476 9,950,347 4,194,800 38% b) 11,044,000 8,834,900 (2,209,100) 1,143,411 646,800 50% 1,293,910 1,293,910 - 909,870 726,266 75% 964,397 965,296 899 938,760 666,046 64% 1,037,735 1,052,683 14,948 574,848 108,245 17% 650,866 543,494 (107,372) 335,616 333,146 91% 364,370 487,345 122,975 1,846,627 459,769 48% 957,457 954,401 (3,056) 510,428 - N/A - - - 602,998 747,506 247% c) 302,170 1,204,000 901,830 166,903 95,727 48% 200,000 200,000 - 206,999 266,201 28% e) 934,753 770,287 (164,466) 156,399 73,700 49% 151,000 151,000 - 157,603 131,745 84% 157,603 131,745 (25,858) 127,000 127,000 100% 127,000 127,000 - 260,545 109,167 55% 198,000 181,600 (16,400) 99,844 59,206 41% 145,000 99,800 (45,200) 386,400 288,400 70% 413,083 431,084 18,001 31,560,767 16,377,724 47% 34,573,521 34,264,198 (309,323) 24,133,045 15,950,143 55% d) 28,922,478 28,416,917 505,561 10,989,018 5,704,800 43% 13,270,073 13,275,560 (5,487) 135,653 53,412 5% 1,100,000 1,170,000 (70,000) 35,257,716 21,708,354 50% 43,292,551 42,862,477 430,074 4,684,193 2,674,113 58% 4,584,193 4,584,193 - 445,740 245,160 50% 490,320 490,320 4,238,453.00 2,428,953 59% 4,093,873 4,093,873 - 541,504 (2,901,677) (4,625,157) (4,504,406) 120,751 7,688,209 8,229,714 98% 8,434,473 8,229,714 (204,759) $ 8,229,713 $5,328,037 $ 3,809,316 $ 3,725,308 $ (84,008) a) Collections from CCBHC exceeded the amount accrued at June 30, 2017. FY 17 revenue will be reported as FY 18 revenues. b) Projection based on FY 2017 collections and anticipated withholdings for panel providers. c) Title 19 revenue during the CCBHC demonstration project is projected to be reimbursed at a higher rate than previous years. d) Projections based on YTD unfilled positions and forecasted unfilled positions during the remainder of the year. e) Reclassification from State Grants to State Miscellaneous for presentation purposes. State Grant projection increased due to higher than anticipated receipts from CCBHC wraparound payment. This offsets the reclassification to State Miscellaneous. NOTE: Year-end projections for Health Service Programs are updated monthly. Projection amounts will fluctuate from month to month. Page 4 Community Development Schedule of Financial Operating Data Revenues FY 2018 Revised Budget I Projected I Variance Admin- Operations Year to Date July 1, $ 75,444 2017 through FY 2017 January 31, 2018 $ 24,148 (58% of the year) 230 - o Actual Actual Budget Revenues FY 2018 Revised Budget I Projected I Variance Admin- Operations $ 110,639 $ 75,444 74% $ 102,042 $ 126,190 $ 24,148 Admin- GIS 230 - 0% 150 150 - Admin- Code Enforcement 451,837 308,264 55% 565,544 571,544 6,000 Building Safety 2,903,075 1,659,101 56% 2,948,636 3,007,413 58,777 Electrical 745,810 424,520 57% 743,927 730,618 (13,309) Env Health- On Site Prog 678,469 423,052 62% 680,460 696,456 15,996 Planning- Current 1,530,513 999,628 62% 1,614,855 1,697,710 82,855 Planning- Long Range 577,420 315,091 46% 682,919 581,052 (101,867) Total Revenues 6,997,993 4,205,102 57% 7,338,533 7,411,133 72,600 Expenditures (by division) Admin -Operations 1,750,586 1,107,413 52% a), b) 2,117,813 2,017,144 100,669 Admin -GIS 136,312 103,851 73% a), c) 141,439 201,548 (60,109) Admin -Code Enforcement 357,992 236,599 53% a) 448,238 443,983 4,255 Building Safety 1,249,842 753,432 49% a), b) 1,524,982 1,434,535 90,447 Electrical 320,568 187,317 47% a) 398,758 370,902 27,856 Env Health -On Site Pgm 399,914 262,569 58% 456,234 461,894 (5,660) Planning -Current 1,179,944 746,696 50% 1,479,295 1,335,095 144,200 Planning -Long Range 390,649 190,286 33% 569,088 374,011 195,077 Total Expenditures 5,785,807 3,588,162 50% 7,135,847 6,639,112 496,735 Transfer In/ Out Out CDD Reserve Funds 1,375,000 411,805 50% 823,610 823,610 - Net Transfers In/ Out (1,375,000) (411,805) (823,610) (823,610) - Change in Fund Balance (162,814) 205,135 (620,924) (51,589) 569,335 Beginning Fund Balance 2,330,492 2,167,678 132% 1,640,386 2,167,678 527,292 Ending Fund Balance $ 2,167,678 $ 2,372,813 $ 1,019,462 $ 2,116,089 $ 1,096,627 a) Projection decreased due to year to date unfilled positions. b) Includes estimates for new FTE approved on 1/10/18 c) Includes adjustment for FTE budgeted in Current Planning and transferred to GIS. Page 5 Road Schedule of Financial Operating Data Year to Date July 1, FY 2017 2017 through January31, 2018 58% of the ear % of Actual Actual Budget Revenues Motor Vehicle Revenue $ 12,930,670 $ 7,902,653 60% a) $ 13,260,000 $ 14,300,000 $ 1,040,000 Federal - PILT Payment 1,323,365 1,574,248 97% b) 1,623,000 1,574,248 (48,752) Other Inter -fund Services 1,065,930 345,164 23% c) 1,501,525 1,474,525 (27,000) Federal Reimbursements - - 0% d) 955,549 591,549 (364,000) Cities-Bend/Red/Sis/La Pine 488,114 92,141 13% e) 710,000 534,837 (175,163) State Miscellaneous 593,969 708,482 109% f) 651,213 708,482 57,269 Forest Receipts 381,533 - 0% g) 400,000 380,000 (20,000) Sale of Equip & Material 273,353 227,617 60% h) 381,900 323,700 (58,200) Mineral Lease Royalties 183,312 13,703 8% 175,000 175,000 - Assessment Payments (P&I) 87,079 28,431 32% i) 88,000 80,000 (8,000) Interest on Investments 112,444 60,821 68% j) 90,000 107,281 17,281 Miscellaneous 50,391 39,169 95% k) 41,092 60,000 18,908 Total Revenues 17,490,159 10,992,429 55% 19,877,279 20,309,622 432,343 Expenditures Personnel Services 5,877,065 3,443,347 56%1) 6,161,974 6,125,516 36,458 Materials and Services 8,903,281 3,733,827 27% m) 13,715,873 8,135,422 5,580,451 Capital Outlay 68,721 - 0% n) 228,000 121,000 107,000 Total Expenditures 14,849,067 7,177,174 36% 20,105,847 14,381,938 5,723,909 Transfers Payment from Solid Waste 362,453 - - - - - Transfers Out 9,067,643 6,000,000 100% 6,000,000 6,000,000 - Total Transfers (8,705,190) (6,000,000) 100% (6,000,000) (6,000,000) - Change in Fund Balance (6,064,098) (2,184,745) (6,228,568) (72,316) 6,156,252 Beginning Fund Balance 14,840,939 8,776,841 101% 8,684,589 8,776,841 92,252 Ending Fund Balance $ 8,776,841 $ 6,592,096 $ 2,456,021 $ 8,704,525 $ 6,248,504 a) HB 2017 increase for FY 18: $1.04M. b) PILT payment received in July was less than budgeted. c) Weed spraying and vehicles repairs anticipated to be less than budgeted. d) FLAP reimbursement based on projected completed projects. e) Contracted work is anticipated to be less than budgeted. f) ODOT allocation work anticipated to exceed budgeted revenue. g) Receipts are anticipated to be less than budgeted. h) Sale of weed spray anticipated to be less than budgeted. i) Assessment payments are trending less than budgeted. k) $8k for Nash fire sign rental and $3.8k electric rebate unbudgeted 1) Projections based on YTD unfilled positions and forecasted unfilled positions during the remainder of the year. m) $4.8 million, appropriated in FY 2018 for cost of overlays, will be expended in future periods. Road Striping Materials and Aggregate anticipated to be $365k less than budgeted. Engineering, Contract Road Services and Temp Labor anticipated to be $374k less than budgeted. n) Right of way acquisition and traffic safety budgeted in Fund 325 will be expended from Fund 465 using available appropriai Page 6 Revenues DOC Grant in Aid SB 1145 CJC Justice Reinvestment DOC Measure 57 Electronic Monitoring Fee Probation Superv. Fees DOC -Family Sentence Alt Interfund - Sheriff Gen Fund/Crime Prevention DOJ/Arrest Grant Alternate Incarceration State Subsidy Interest on Investments Probation Work Crew Fees State Miscellaneous Miscellaneous Total Revenues Expenditures Personnel Services Materials and Services Capital Outlay Total Expenditures Transfers Transfers In -General Fund Transfer to Veh Maint Total Transfers Change in Fund Balance Beginning Fund Balance Ending Fund Balance Adult Parole Probation Schedule of Financial Operating Data $ 3,650,168 Year to Date July 1, 82% a), c) 2017 through FY 2017 January 31, 2018 845,836 (58% of the year) 121% b) 699,506 of Actual Actual Budget $ 3,650,168 $ 3,249,997 82% a), c) $ 3,940,708 $ 4,333,290 $ 392,582 845,836 844,831 121% b) 699,506 844,831 145,325 240,315 233,900 100% c) 234,315 233,900 (415) 133,292 76,374 45% 170,000 150,000 (20,000) 209,708 105,738 50% 210,000 210,000 - 110,797 114,683 - a) - 114,683 114,683 50,000 29,167 58% 50,000 50,000 - 50,000 25,000 50% j) 50,000 50,000 - 46,736 11,684 106% 11,000 11,684 684 29,985 6,908 34% i) 20,035 6,908 (13,127) 16,367 12,252 78% a) 15,610 16,337 727 28,990 17,741 177% f) 10,000 27,000 17,000 5,958 874 15% d) 6,000 2,000 (4,000) - - 0% k) 4,300 - (4,300) 1,256 267 53% 500 500 - 5,419,408 4,729,415 87% 5,421,974 6,051,133 629,159 4,097,354 2,458,902 55% e) 4,455,860 4,350,000 105,860 1,509,684 853,137 46% h) 1,843,865 1,500,000 343,865 15,986 10,075 - g) - 24,902 (24,902) 5,623,023 3,322,114 53% 6,299,725 5,874,902 424,823 451,189 263,194 58% 451,189 451,189 - 22,000 22,000 50% 44,000 44,000 - 429,189 241,194 59% 407,189 407,189 - 225,574 1,648,494 (470,562) 583,420 1,053,982 1,465,370 1,690,943 123% 1,375,000 1,690,943 315,943 6 1,690,943 $ 3,339,437 $ 904,438 $ 2,274,363 $ 1,369,925 a) Projection increased due to additional revenue being granted by legislature after budget adoption. b) Legislature increased grant subsequent to adoption of FY 2018 budget. c) Annual payment received in January 2018. Payment was coded to incorrect account and will be reclassed in February. Projection decreased due to less than anticipated revenue granted by legislature after budget adoption. d) Projection decreased due to less than anticipated revenue related to restructuring fee reduction calculation to better estimate ability to pay and to increase collections. e) Projected to be less than appropriated due to vacancies. Includes expected Class/Comp increase. f) Projection based on trending. g) Projection increased due to unanticipated purchases related to security. h) Projection decreased due to less than anticipated expenditure related to offender treatment contract payments and data dashboard. i) State prison transition program eiimated. j) General Fund grant received quarterly k) Reimbursement for offender services not expected to be utilized this fiscal year. Page 7 Operating Revenues Franchise Disposal Fees Private Disposal Fees Commercial Disp. Fees Franchise 3% Fees Yard Debris Recyclables Equip & Material Special Waste Interest Leases Miscellaneous Total Operating Revenues Operating Expenditures Personnel Services Materials and Services Capital Outlay Debt Service Total Operating Expenditures Transfers Out SW Capital & Equipment Reserve Total Transfers Out Change in Fund Balance Beginning Fund Balance Solid Waste Schedule of Financial Operation Data FY 2018 Budget Projected I Variance 5,459,396 Year to Date July 1, 56% 2017 through FY 2017 January 31, 2018 (203,381) (58% of the year) 1,496,758 74% 00 Actual Actual Budget FY 2018 Budget Projected I Variance 5,459,396 3,609,820 56% 6,391,644 6,188,263 (203,381) 2,095,262 1,496,758 74% a) 2,012,522 2,532,121 519,599 1,729,096 1,123,712 64% a) 1,742,832 1,908,459 165,627 254,304 105,870 44% b) 240,000 255,000 15,000 171,470 120,895 72% a) 168,000 206,439 38,439 13,467 10,434 87% a) 12,000 17,887 5,887 18,590 - - - - - 28,812 7,836 31% a) 25,000 13,433 (11,567) 31,959 11,042 55% 20,000 20,000 - 10,801 6,301 58% 10,801 10,801 - 59,241 37,060 106% 35,000 56,264 21,264 9,872,398 6,529,728 61% 10,657,799 11,208,667 550,868 2,049,320 1,258,184 55% 2,278,466 2,248,967 29,499 4,334,705 2,401,674 49% d) 4,909,217 5,012,085 (102,868) 127,449 39,738 32% 125,000 108,631 16,369 858,512 310,982 36% c) 861,102 861,102 - 7,369,985 4,010,577 49% 8,173,785 8,230,785 (57,000) 3,075,000 2,565,000 99% 2,580,000 2,580,000 - 3,075,000 2,565,000 99% 2,580,000 2,580,000 - (572,588) (45,849) (95,986) 397,882 493,868 1,810,265 1,237,677 201% 615,872 1,237,677 621,805 $ 1,237,677 $ 1,191,828 $ 519,886 $ 1,635,559 $ 1,115,673 a) Fees are seasonal and are lower during the winter months. b) Franchise fee payment is due on May 15, 2018. c) Debt Service payments are made in November and May. d) Projection includes a contract for solid waste management plan. As the budget was adopted at the program level for Funds 610-614 combined, unlikely that an additional appropriation will be required. Page 8 Risk Management Schedule of Financial Operating Data Revenues Year to Date July 1, FY 2017 2017 through January 31, 2018 FY 2018 (58% of the year) 00 $ 931,319 $ 613,249 58% Actual Actual Budget Budget Projected I Variance Revenues Inter -fund Charges: General Liability $ 931,319 $ 613,249 58% $1,051,283 $ 1,051,283 $ Property Damage 389,101 228,400 58% 391,542 391,542 Vehicle 197,155 113,800 58% 195,085 195,085 Workers' Compensation 1,228,053 724,336 58% 1,241,718 1,241,718 Unemployment 280,921 207,391 58% 354,609 354,609 Claims Reimb-Gen Liab/Property 33,863 317,095 1057% a) 30,000 320,000 290,000 Process Fee-Events/Parades 1,980 945 53% 1,800 1,800 - Miscellaneous 30 1,500 5000% 30 1,600 1,570 Skid Car Training 43,853 29,392 92% 32,000 34,000 2,000 Interest on Investments 58,644 43,848 60% 73,464 73,464 TOTAL REVENUES 3,164,919 2,279,956 68% 3,371,531 3,665,101 293,570 Direct Insurance Costs: GENERAL LIABILITY Settlement / Benefit 711,705 22,080 Defense 27,039 18,983 Professional Service 6,250 6,622 Insurance 339,723 207,262 Loss Prevention 1,347 Miscellaneous 171 Repair/ Replacement 33,673 932 Total General Liability 1,119,908 255,879 32% 800,000 700,000 100,000 PROPERTY DAMAGE Property Damage Charges 137 Insurance 5,101 173,873 Loss Prevention 12,000 Repair/ Replacement 122,074 4,770 Total Property Damage 139,175 178,780 83% b) 215,000 504,199 (289,199) VEHICLE Professional Service 781 - Insurance 5,101 Loss Prevention 25,397 870 Miscellaneous 6,985 Repair/ Replacement 102,994 42,672 Total Vehicle 136,157 48,643 49% 100,000 100,000 WORKERS' COMPENSATION Settlement / Benefit 539,792 455,270 Professional Service 6,250 18,077 Insurance 159,212 118,900 Loss Prevention 49,683 44,832 Miscellaneous 52,937 12,316 Total Workers' Compensation 807,875 649,395 72% 900,000 1,050,000 (150,000) UNEMPLOYMENT - Settlement/Benefits 56,497 30,960 21% 150,000 100,000 50,000 Total Direct Insurance Costs 2,259,612 1,163,656 54% 2,165,000 2,454,199 (289,199) Insurance Administration: Personnel Services 327,505 199,202 58% 345,627 345,627 Materials & Srvc, Capital Out. & Tranfs. 146,503 80,160 35% 226,699 226,699 Total Insurance Administration 474,008 279,361 49% 572,326 572,326 Total Expenditures 2,733,620 1,443,017 53% c) 2,737,326 3,026,525 (289,199) Change in Fund Balance 431,299 836,938 634,205 636,576 2,371 Beginning Fund Balance 4,928,271 5,359,570 109% 4,897,636 5,359,570 461,934 Ending Fund Balance S 5,359,570 S 6,196,508 $ 5,531,841 $ 5,996,146 $ 464,305 a) Claims reimbursement includes insurance payment of $254,199 for Fair/Expo roof damage b) Projection includes expenditure is for the Fair/Expo roof replacement. c) An appropriation transfer may be required. Page 9 DC 9-1-1 (Funds 705 and 707) Schedule of Financial Operating Data FY 2017 Year to Date July 1, 2017 through January 31, 2018 (58% of the Actual I Budget $ 7,429,877 94% a) $ 7,926,725 $ 7,926,725 $ 92,507 Actual Revenues 93,000 Property Taxes - Current $ 7,496,065 Property Taxes - Prior 109,702 Property Taxes - Jefferson County 32,518 State Reimbursement 869,734 State Grant 276,510 Telephone User Tax 865,111 Data Network Reimb. 86,263 User Fee 58,981 Police RMS User Fees 326,030 Contract Payments 130,756 Miscellaneous 3,562 Interest 105,258 Total Revenues 10,360,491 Expenditures 61% Personnel Services 5,867,156 Material and Services 3,254,372 Capital Outlay 4,941,447 Total Expenditures 14,062,974 Transfers 0% Transfers In 400,000 Transfers Out - Total Transfers 400,000 Change in Fund Balance (3,302,483) Beginning Fund Balance 10,563,485 Ending Fund 705 & 707 Balance $ 7,261,002 Year to Date July 1, 2017 through January 31, 2018 (58% of the Actual I Budget $ 7,429,877 94% a) $ 7,926,725 $ 7,926,725 $ 92,507 109% 85,000 93,000 8,000 29,621 90% a) 33,000 33,000 - 15,000 14% b) 110,000 15,000 (95,000) - N/A - - - 223,749 25% c) 880,000 880,000 - - 0% 55,000 55,000 - 54,786 61% 90,000 90,000 - 46,965 19% 250,119 250,119 - - 0% 193,000 193,000 - 5,302 20% 27,000 27,000 - 51,209 80% 64,000 64,000 - 7,949,016 82% 9,713,844 9,626,844 (87,000) 4,005,011 57% 7,070,919 7,004,919 66,000 2,037,494 67% b) 3,047,724 2,937,724 110,000 1,327,084 60% d) 2,210,000 2,210,000 - 7,369,590 60% 12,328,643 12,152,643 176,000 - 0% 1,300,000 806,137 (493,863) - N/A 493,863 - 493,863 - 0% 806,137 806,137 - 579,426 (1,808,662) (1,719,662) (263,000) 7,261,001 110% 6,600,000 7,261,001 661,001 $ 7,840,427 $ 4,791,338 $ 5,541,339 $ 750,001 Ending Bal. DC Reserve (710) 3,394,078 3,420,721 2,433,863 2,634,583 200,720 8,175,922 a) Historically, 92% of the current year taxes are received by the end of December. b) Four workstations will not be purchased as the State will not be providing the resources. c) Q2 payment expected by the end of February. d) Several capital project expenditures made during Q1. Page 10 Revenues: Internal Premium Charges Part -Time Employee Premium Employee Monthly Co -Pay COIC Retiree / COBRA Co -Pay Prescription Rebates Claims Reimbursements & Misc Interest Total Revenues Expenditures: Materials & Services Admin & Wellness Claims Paid -Medical Claims Paid -Prescription Claims Paid-Dental/Vision Stop Loss Insurance Premium State Assessments Administration Fee (TPA) Preferred Provider Fee Other - Administration Other- Wellness Admin & Wellness Deschutes On-site Clinic Contracted Services Medical Supplies Other Total DOC Deschutes On-site Pharmacy Contracted Services Prescriptions Other Total Pharmacy Total Expenditures Change in Fund Balance Beginning Fund Balance Ending Fund Balance Health Benefits Fund Statement of Financial Operating Data FY 2018 July 1, 2017 through January 31, 2018 FY 2017 FY 2018 Actual Actual „%°f , Budget Projection $ Variance $ 16,955,229 $ 10,251,562 61% a) 16,865,000 17,574,107 709,107 2,585 1,495 N/A a) - 2,564 2,564 923,805 544,365 59% a) 925,000 961,865 36,865 2,165,312 1,075,178 48% a) 2,224,000 1,843,162 (380,838) 1,202,895 728,542 60% a) 1,211,803 1,248,928 37,125 52,995 48,655 N/A - 48,655 48,655 82,361 22,922 15% 214,431 150,000 100,000 (50,000) 168,140 118,623 12,791,343 56% 59% a) 210,000 21,585,803 203,354 21,982,635 (6,646) 396,832 21,553,322 13,016,901 977,260 2,141,054 366,633 6,269 461,375 91,904 221,307 174,028 17,456,731 7,970,089 57% b) 14,088,936 13,661,497 427,440 825,783 77% b) 1,069,006 1,281,368 (212,362) 1,087,256 46% b) 2,342,057 2,098,229 243,828 291,685 69% c) 425,000 639,532 (214,532) - 0% 15,382,578 6,600 6,600 $ 14,547,511 306,226 66% c) 465,000 792,612 (327,612) 55,722 86%;c) 65,000 116,666 (51,666) 98,481 46% 214,431 214,431 74,870 42% 178,900 178,900 - 10,710,112 57% 18,854,931 18,989,835 (134,904) 953,281 464,433 72,219 42,208 45,308 17,536 1,070,808 524,178 382,900 122,886 1,728,845 886,356 34,083 47,350 2,145,828 1,056,592 20,673,366 12,290,882 879,955 500,461 14, 502, 622 15, 382, 578 $ 15,382,578 $ 15,883,038 % of Exp covered by Revenues 1 104.3% 1 104.19/6 a) Year to Date Annualized b) 12 -Month rolling average with 8% increase over prior year c) Projection is year to date actual plus the encumbrance. 48% 975,000 975,000 50% 85,000 85,000 - 38% 45,943 45,943 - 47% 1,105,943 1,105,943 - 39% 312,000 312,000 - 52% a) 1,700,000 1,772,713 (72,713) 72% 65,418 65,418 - 51% 2,077,418 2,150,131 (72,713) 56% 22,038,292 22,245,909 (207,617) (452,489) (263,274) 189,215 103% 15,000,000 15,382,578 382,578 $ 14,547,511 $15,119,304 $ 571,793 97.9%1 98.89% Page 11 jrf 2/13/2018 FAIR AND EXPO CENTER Schedule of Financial Operating Data Year to Date July 1, 2017 through January 31, 2018 (58% of the year) Operating Revenues FY 2018 Budget Projected Events Revenues $ Year to Date July 1, 2017 $ 171,949 FY 2017 through January 31, 2018 66,879 20,000 35,898 (58% of the year) Camping at F & E ! 53 4,150 21% % of 34,953 Actual Actual Budget Food & Beverage Activities, net Operating Revenues FY 2018 Budget Projected Events Revenues $ 538,512 $ 171,949 32% Storage 66,879 20,000 35,898 55% Camping at F & E 21,148 53 4,150 21% Horse Stall Rental 34,953 287,452 10,053 25% Food & Beverage Activities, net 119,129 7,500 (10,292) -9% a) Annual County Fair (net) 440,000 (163,510) 245,452 57% b) Interfund Contract 30,000 (211,254) 17,500 58% c) Miscellaneous 14,198 (635,070) 3,102 41% Total Operating Revenues 1,264,818 15,000 477,812 38% Operating Expenditures, net of TRT: 30,000 30,000 118,000 General F & E Activities (7,801) 1,000 228 772 Personnel Services 940,667 (8,573) 568,829 54% d) TRT Grant (188,255) 200,000 (122,754) 61% Materials and Services 812,908 105,452) 547,609 45% TRT Grant (167,827) - (128,943) 20% Capital Outlay - 101,824 - 0% Total Operating Exp, net of TRT 1,397,493 225,000 864,741 59% Other: $ (71,550),$ 26$651 Park Acq/Dev (Fund 130) 30,000 15,000 50% Rights & Signage 116,130 35,099 30% Interest 1,789 228 23% Total Other 147,919 50,327 34% Results of Operations 15,244 (336,603) Transfers In I Out Transfer In -General Fund 250,000 116,667 58% Transfer In -Room Tax - (Fund 160) 25,744 15,017 58% Trans In(Out)-Fair & Expo Reserve 55,000 105,452 100% Total Transfers In 220,744 26,232 Non -Operating Rev & Exp Debt Service 102,536 56,660 56% Total Non -Operating Expenditures 102,536 56,660 56% Change in Fund Balance 133,452 (367,030) Beginning Fund Balance 47,283 180,735 80% Ending Fund Balance $ 180,735 $ 186,295 a) See "Food & Beverage Activities Schedule' b) Revenues and Expenses for the annual County Fair are recorded in a separate fund and the available net income is transferred to the Fair & Expo Center Fund c) Reimbursement from RV Park for personnel expenditures recorded in F&E d) Personnel projected to be less than budgeted due to open positions through January 31, 2018 Page 12 FY 2018 Budget Projected I Variance 544,000 $ 502,321 $ (41,679) 65,000 78,898 13,898 20,000 23,650 3,650 41,000 41,053 53 120,695 121,835 1,140 430,626 287,452 (143,174) 30,000 30,000 - 7,500 10,102 2,602 1,258,821 1,095,311 (163,510) 1,050,695 993,829 56,866 (200,000) (211,254) 11,254 1,223,563 954,609 268,954 (635,070) (230,693) (404,377) 15,000 - 15,000 1,454,188 1,506,491 (52,303) 30,000 30,000 118,000 110,199 (7,801) 1,000 228 772 149,000 140,427 (8,573) (46,367) (270,753) (224,386) 200,000 200,000 - 25,744 25,744 105,452) (105,452)- 120,292 120,292 - 101,824 101,824 101,824 101,824 - (27,899) (252,285) (224,386) 225,000 180,735 44,265 $ 197,101 $ (71,550),$ 26$651 a) See "Food & Beverage Activities Schedule' b) Revenues and Expenses for the annual County Fair are recorded in a separate fund and the available net income is transferred to the Fair & Expo Center Fund c) Reimbursement from RV Park for personnel expenditures recorded in F&E d) Personnel projected to be less than budgeted due to open positions through January 31, 2018 Page 12 M a) 0 co C. Z 0 O O o 00 o o a (D 0 0 LO N Lf) 0 0 0 o m a0 0 0 0 00 o LOU) o m O ' O ' O ti O 00 00 N O O O I` I- to tp O NN N O r U7 (O to O -t d' U) M O O m r O O N U) CD v T T N M d N co T r r r N T r r LLL 0) M d U) N o U) lt) N P o I-- - 00 O) 00 w N Co r M O) to I` U) ti It 0) N r U7 N I` co N 0) 0) CA N M 00 V 00 U) N r 00 CA 00 P, T O r N M N U] 00 r w O N D N Lo N T O top N } d440 N d I� U) t() 0 CA M O o c o cc O 00 (0 C, It O U) U) Co O N O Cl) O N M M O CA C) ti 0) r " M N CV P+ CD O N tD � � 00 T h N P• M O (D O V M M N O C d' N r N T N T N r q - to � yy to tf) 00 00 N o N CD to CA 0) O CA 00 O r M O a l!) U) O CO d 01 I•. f` U) U) O N t�0 0) It O� N 0 M 00 ti r L ' U7 N M t0 P E N CA N 00 M C/! 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U 4 w o p o 4) ch �, .. d N Co d U) N 0 __ W 2a` j)=g x v o o a ��'�� O N w C O D H N ` a) U COn E Lmd W W 0 0 O t,,,UU 0 xd� °u o) J C w O F- 0 (9 0 f- W F 5 M a) 0 co C. Revenues Court Fines & Fees Interest on Investments Total Revenues Expenditures Personnel Services Materials and Services Total Expenditures Net from Operations Transfers Transfers In- General Fund Total Transfers Change in Fund Balance Beginning Fund Balance Ending Fund Balance Justice Court Schedule of Financial Operating Data Year to Date July FY2017 1, 2017 through January 31, 2018 (58% of the year) % of Actual I Actual I Budget $ 545,628 $ 322,406 61% a) $ 530,000 $ 552,696 $ 22,696 1,348 605 40% 1,500 1,500 - 546,976 323,011 61% 531,500 554,196 22,696 467,419 270,609 56% b) 486,471 471,877 14,594 153,817 84,842 60% c) 142,392 139,811 2,581 621,236 355,452 57% 628,863 611,688 17,175 (74,260) (32,441) (97,363) (57,492) 39,871 25,000 40,833 58% 70,000 70,000 - 25,000 40,833 58% 70,000 70,000 - (49,260) 8,392 (27,363) 12,508 39,871 161,702 112,442 132% 85,000 112,442 27,442 $ 112,442 $ 120,834 $ 57,637 $ 124,950 $ 67,313 a) Year to date annualized. b) Based on projected payroll in budget central c) Projected based on outstanding obligations related to rent, utilities, and internal services. Page 14 REVENUES Room Taxes Interest Total Revenues EXPENDITURES Administrative Auditing Services Temporary Help Interfund Contract ISF Public Notices Printing Office Supplies Postage Total Administrative Current Distributions Sheriff's Office Sunriver Service Dist COVA (20% of the 6%) COVA (100% of the 1%) Grants Third Party Grants Inter -fund Grants ME Center Annual County Fair RV Park Inter -fund Transfers ME Center ME Reserve Fund Total Distributions Total Expenditures Change in Balance Beginning Balance Ending Balance Deschutes County Room Taxes (Funds 160 and 170) Budget and Actual - FY 2018 YTD January 2018 Fund 160 - 790 of TRT 0 Fund 170 - 1% of TRT M Combined - 8% TRT Budget - Actual Budget Actual Budget 7,064 Actual of Budget $ 5,880,000 $ 4,618,459 $ 840,000 $ 659,783 $ 6,720,000 $ 5,278,242 78.5% 10,000 12,586 7,000 4,767_ 17,000 6,737,000 17,353 5,295,595 102.1% 78.6% 5,890,000 4,631,045 847,000 664,550 10,937 - 1,563 - 12,500 - 7,064 847 - 113 7,064 960 48,238 28,139 9,048 4,689 57,286 32,828 32,287 18,834 15,305 8,928 47,592 27,762 2,669 858 381 123 3,050 980 1,881 - 269 - 2,150 - 897 128 - 1,025 2,647 378 - 3,025 - 106,620 48,678 27,072 13,853 133,692 62,531 31151,787 1,838,542 - - 3,151,787 1,838,542 200,000 - 200,000 - 982,256 717,399 982,256 717,399 820,164 602,582 - - 820,164 602,582 - - - 8,000 - 8,000 - - 839,242 223,907 839,242 223,907 - 70,000 101,384 70,000 101,384 - - 70,000 26,027 70,000 26,027 25,744 15,017 - - 25,744 15,017 - 245,978 122,989 245,978 122,989 5,179,951 3,173,541 1,225,220 482,307 6,405,171 3,655,848 5,286,571 3,222,219 1,252,292 496,160 6,538,863 3,718,378 603,429 1,408,827 (405,292) 168,390 198,137 1,577,217 407,000 449,923 405,292 467,133 812,292 917,056 $ 1,010,429 $ 1,858,749 $ - $ 635,523 $ 1,010,429 $ 2,494,272 Page 15 K, Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 DATE: February 21, 2018 FROM: Matthew Martin, Community Development, 541-330-4620 TITLE OF AGENDA ITEM: Discussion - Flood Plain Zone Amendments ATTENDANCE: Matthew Martin, Long Range Planner SUMMARY: The purpose of this work session is to provide an overview of the legislative amendments to the Deschutes County Comprehensive Plan, Zoning Map, and Zoning Ordinance related to converting the Flood Plain Zone to a Flood Plain Combining Zone in preparation for deliberations by the Board of County Commissioners. M Deschutes County Zone - Flood Plain Zone N j City Limit ------�--� Highway DISCLAIMER: The information on this map was derived from digital databases on Deschutes County's G.I.S. Care was taken in the creation of this map, but it is provided "as is Deschutes County cannot accept any responsibility for errors, omissions, or positional accuracy in the digital data or the underlying records. There are no warranties, express or implied, including the warranty of merchantability or fitness fora particular purpose, accompanying this product. However, notification of any errors will be appreciated. 0 5 10 20 30 40 Miles Fgri HFRF np.i nrma M inmvindin nc nnP.n.itrP.P.tM.'3n rnntrihutnrs and tha GIS usar community �, Community Development Department Planning Division SuiWiilq $afety Division Enviroorn.eniai Soils Division P.O. Box GG05 117 NW Lafayette Avenue Bend, Oregon q 708-6GG5 (541) 388-6575 Fax (541) 365-1764 http:// vv.deschutes.org/cd ►iiX►�ri77e��f71I►�1 TO: Deschutes County Board of Commissioners FROM: Matthew Martin, AICP, Long Range Planner DATE: February 26, 2018 SUBJECT: Work Session: Flood Plain Zone Amendments (County Land Use File Nos. 247-17-000140- ZC/141-PA/142-TA) SUMMARY The purpose of this work session is to provide an overview of the legislative amendments to the Deschutes County Comprehensive Plan, Zoning Map, and Zoning Ordinance related to converting the Flood Plain Zone to a Flood Plain Combining Zone in preparation for deliberations by the Board of County Commissioners (Board). II. BACKGROUND The review of the proposed amendments were initiated in the Winter of 2017. The public process included lengthy consideration by the Planning Commission and the following meetings with the Board: • 11/1/171- The Board held a work session to prepare for public hearing. Included was a detailed overview of the recommendation provided by the Planning Commission. • 11/8/172 — The Board held public hearing to receive testimony on the proposed amendments. • 11/27/173 — The Board held a work session to discuss testimony received and consider next procedural steps. The Board referred the recommended amendments pertaining to conservation easements, cluster developments, and planned developments back to the Planning Commission to conduct a public hearing. • 2/5/184 - The Board held a work session to discuss the amended Planning Commission recommendation and requested an additional work session to review the full package of amendments to prepare for deliberations. ' 11/1/17 Board Work Session: htt deschutescountvor.igrn2.comZCitizens/Detail Meetinp.aspx?ID=1754 2 11/8/17 Board Business Meeting: http://deschutescountVor,igm2.com/Citizens/Detail Meeting.aspx?ID=1757 s 11/27/17 Board Work Session: http://deschutescourityor.igrn2.com/Citizens/Detail Meetir!g.aspx?ID=1762 2/8/18 Board Work Session; htt deschutescount or.i m2.com Citizens Detail Meetin .as x?ID=1574 � ality Services Perfonned with Pride III. ADDITIONAL TESTIMONY Since the Board work session on February 5, staff received additional testimony from Liz Fancher and Myles Conway (attached). The proposed amendments are legislative with no formal deadline to submit testimony. The new testimony is directed at land divisions in the Exclusive Farm Use (EFU) zone with support for a different standard for flood plain zoning not associated with a landscape management zone feature (river, stream) and the objection to the "Riparian Area Protection Plan" recommendation for land divisions. IV. AMENDMENT SUMMARY Table 1 summarizes the recommended amendments by section of the Deschutes County Code. Table 1. Deschutes County Code (DCC) Amendment Summary Deschutes County Zoning Map Establishes Flood Plain Overlay Zone Maps. Contains an atlas to illustrate the Flood Plain Overlay Zone affected unincorporated areas of Deschutes County subject to the Flood Plain Overlay Zone. Title 23, Deschutes County Comprehensive Plan DCC 23.01.010. Introduction Adds Ordinance to the legislative history documenting Comp Plan amendments. Comp Plan, Section 2,5 Water Adds a paragraph explaining the purpose of the Flood Plain Combining Zone. Resources Comp Plan, Tumalo Community Plan Deletes reference to the Flood Plain zone. Adds a reference to the Flood Plain Combining Zone. Comp Plan, Newberry Country Plan Deletes references to the Flood Plain zone. Adds references to the Flood Plain Combining Zone. Comp Plan, Newberry Country Plan — Deletes depiction of the Flood Plain zone in Appendix 5.4, Zoning. Zoning Map Comp Plan, Land Section 5.12 Adds Ordinance to the legislative history documenting Comp Plan amendments. Legislative History Title 18, County Zoning Adds the following definitions: • Base flood • Below -grade crawl space • Critical facility DCC 18.04.030. Definitions • Substantial damage Revises the following definitions: • Flood Insurance Rate Map • Substantial Improvement Removes the Flood Plain definition. Removes references to Flood Plain zone. Adds reference to Flood Plain Combining DCC 18.12. Establishment of Zones Zone. -2- DCC 18.16.030. La Pine Planning Adds reference to Flood Plain Combining Zone. Area DCC 18.96. Flood Plain Combining Significant amendments to facilitate conversions to the combining zone and Zone incorporate elements of the 2014 Oregon Flood Damage Prevention Ordinance. Removes references to Flood Plain zone. Adds reference to Flood Plain Combining DCC 18.13. Destination Resort Zone Zone. Removes references to Flood Plain zone. Adds reference to Flood Plain Combining DCC 18.124. Site Plan Review Zone. Amends the code to allow cluster and planned developments in areas with a Flood DCC 18.128. Conditional Use Plain combining zone with additional protections and use restrictions in the sensitive riparian area. V. PROMINENT ISSUES Public testimony addressed many elements of this comprehensive package of amendments. Staff believes there is general support for the proposed conversion to a combining zone, the technical upgrades to the code, and the new opportunities for land divisions by eliminating split zoning. With that said, there are several prominent, substantive issues raised for the Board to consider and address. They are identified in Table 2. Table 2. Prominent Issues -3- VI. NEXT STEPS Staff provides the following options for the Board's consideration: • Option 1 — Schedule deliberation at a regular business meeting and request an ordinance and updated findings for consideration of first and second reading; • Option 2 — Other as determined by the Board. Attachment: Written Testimony (Fancher, Conway) -4- LIZ FANCRER, ArrOIRNEY Liz Fancher Sue Stinson, Paralegal February 9, 2018 NICK LELACK, DIRECTOR COMMUNITY DEVELOPMENT DEPARTMENT DESCHUTES COUNTY 117 NW LAFAYETTE AVENUE BEND, OR 97703 MATT MARTIN, SENIOR PLANNER COMMUNITY DEVELOPMENT DEPARTMENT DESCHUTES COUNTY 117 NW LAFAYETTE AVENUE BEND, OR 97703 Re: Revision of Flood Plain Ordinance I am writing on behalf of Fred and Teresa Netter. The Netters are Central Oregon farmers. They own almost 300 acres of farm land in the Lower Bridge area of Deschutes County. They have been participating in the County's review of the Flood Plain (FP) zone. They have been participating because they have been advised that the current FP zone will make it difficult and expensive, if not impossible, for them to obtain approval of a partition to allow them to create one or two nonfarm parcels on a "poor soils" area of their EFU-LB property based on new code interpretations. I am writing to ask you and the County to consider adopting an interim fix to the County code to alleviate the hardship the new interpretations are imposing on my clients. A small part of the Netters' property, about 8 acres, is zoned FP. The FP zone was applied because an irrigation canal used to cross the property. The canal has been piped and no longer crosses their property. The FP zoning, unfortunately, persists. The Netters' partition would not divide the land zoned FP. It would leave the entire FP -zoned area of the property as a part of the large farm parcel that will remain after one or more nonfarm parcels are created on the dry, poor soils area of the property. The potential legal issue of concern to County staff is that it is unclear how the 80 acre minimum lot size of the FP zone will apply to the Netters land division. In the past, the County has approved farm/nonfarm land divisions to create new farm parcels with less than 80 acres of land zoned FP as long as the part of the property zoned FP is not being r') divided. A partition of this type was approved for one of the Netters' neighbors. The County's long-established approach to this issue makes sense because no land division 644 NW BROADWAY STREET BEND, OREGON • 97703 PHONF: 541-385 3067 1iAX: 541..385-3076 -2— Febtuaty `), 2028 will be occurring in the FP zone. Furthermore, the farm parcel that will contain all land zoned FP will exceed the 80 acre minimum lot size of the FP zone because the farm parcel will be over 200 acres in size, if all land in the new parcel is counted. County policy has been, however, to treat split -zoned parts of a single parcel as separate parcels for purposes of calculating minimum parcel sizes. This means that one parcel must meet two minimum parcel sizes and only land in each zone may be counted to meet the minimum parcel size of the FP zone. In this case, if (a) minimum lot sizes for the FP zone apply even when no land in the FP zone is divided; and (b) the FP minimum size applies even though the FP -zoned lands are not being divided, it would be impossible for the Netters to meet the 80 -acre minimum lot size of the FP zone. The Netters' property far exceeds the minimum lot size imposed by the EFU zone but the 8 acres of land zoned flood plain is far short of the 80 acre minimum of the FP zone. I believe it is highly likely that the County's intent, when adopting the FP zone and imposing the 80 acre minimum parcel size, was to assure that an entire parcel in rural areas be 80 acres because that was the State standard .in effect when the FP rules were adopted and almost no properties in Deschutes County have 80 acres of land zoned FP only. Also, split -zoned areas of a parcel are not separate parcels and it is illogical to treat them as such when determining the size of the parcel. The proposed FP zone changes have been delayed for a considerable period of tirne. Given the long delay, the Netters are writing to ask that Deschutes County adopt an interim change to the existing FP ordinance that will allow them to proceed with their partition application under rules similar to those applied to other farm properties that contain small areas zoned FP. This could be accomplished by amending the existing FP zone or by adopting some of the FP overlay zone changes. We believe that narrowly constructed changes to the existing FP zone would have the greatest chance of being adopted without opposition or being affirmed on appeal and provide examples of such an approach below. Option One Add subsection (D) to DCC 1.8.96.110 to read as follows: (D) The minimum lot size_af the FP zone shall he determined based on all areas within the l urarr lcti tcrs. rrf cr lcrt rz} r�rcllc �t �rttt ;r�rtrr _.rlca5t��ttcrtioy .7his �rcri tciott rt>rr� lir;.s 1Cr r�u rc es ztined Fr dtte to they briar or c rpt rcttt e.xistenc2c rt ' ct �i�ttt �_ crttrrtc. other than a waterway!protected by the? Cou4tyLy LM zoning district,_ This provision is an interim measure intended to relieve .a -specific hardship. It is not meanttnpreclude,the,;udo bort of an interpretation„_ f„suhsectiar�,,,,(Q__g!2yg,..,.that achieves the same result for other properties. This option would alleviate hardships imposed on area farmers whose properties do not adjoin rivers and streams. -3— Febtuary 9, 2018 Option Two DCC 18.96.130. Interpretation of FIRM Boundaries. The Planning Director shall make interpretations where needed, as to exact locations of the boundaries of areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions or where special flood hazards no longer- exist). Lands outside the areas determined by the Director to be areas of s ecial ood,_,hazards„shall not be subiect to the rales of the FP zone. Instead, they P ,haul b _sub iert to the prow st.ons )d.1Jrc} frrtc lirc�l ,rrrr�>/cti�crt#� filte.....cr�rrrr�re;hcxr�stle i,lcrn. designation of the property. Leh m�pr-em4o ' aetion-pu tffto£u h_f This approach would allow the Planning Director to apply the LFU zoning rules to the part of the Netters property zoned FP because the property no longer is in a flood plain. It is the narrowest approach but it is, I believe, consistent with the County's past practice in administering the code. I have previously sent an e-mail to Mr. Martin and others that explains how the proposed flood plain zone changes might be adopted in two ordinances, either concurrently or sequentially. I have not included it with this letter because C®LW objected to a two part adoption of the LM overlay zone but would be happy to send it again. Thank you for your consideration of my clients' concerns. Acting on this issue legislatively should avert a potentially lengthy, costly and contentious battle over the meaning of the FP zone's rninirnum lot size rules that will become moot when the County adopts an FP overlay zone. Sizlcer� y„ Liz Fancher Cc: Board of Commissioners Will Groves, ,Senior Planner MARTEN LAS February 15, 20318 Via Email (inatt.martin@deschutes.org) Deschutes County Commissioners c/o Matthew Martin Senior Planner Deschutes County Community Development RE: Flood Plain 'Lone Amendment Project (Proposed Ordinance. 2017-004) County File Nos/ 247--17-000140ZC/141-PA/1 2 -TA Dear Cornmissione.rs: We are writing on behalf of James Young, K Bar J Ranch LLC and Paulina Meadows LLC (collectively "Young"), the owners of several large ranch properties in southern Deschutes County. The various Young properties aree bisected by the Little Deschutes River, Paulina Creels and Long Prairie. Slough. Weare writing to provide the following additional comments related to the ,.January 25, 20x8, "Revised Recommendation" provided by the Deschutes County Planning Commission. As stated in prior testimony, Mr. Young fully supports the proposed conversion of the Flood Plain (FP) Zone to a combining (overlay) zone. 1"he current: stand- alone FP Zone has a significant and detrimental impact on agricultural properties. Split: zoned EFU/FP parcels are, currently governed by two -different 8o -acre minimum lot size. requirements. This severely limits a landowner's ability to proceed with any land division or lot line adjustment. The proposed FP Combining Ione will eliminate the problem and make Deschutes County zoning regulations consistent with the treatment of the flood plain in other areas of the state, sr�pc�scc;l_`<l ip.;tx,<;t_�.._�:t'�'.st.._1V��;nageynent...Nag" Requirement While Mr. Young supports the adoption of a Flood Plain C:ornbirr.ing Ione, lie. obJects to the proposed, "Riparian Area Management Plan" requirement as recommended by the Planning Commission,' 'rhe proposed language imposes I with its Tanualy 21.5, 2r)18 `Revisctd RecornIllerx1atiorr,` the Planni rig co7TrrrrissiolI stIpports replacing,the exp' nded conservation easement standards with. "a requirement. t:o estab: ish and rrrnintain a riparian area Protection plan similar to the recommended requirernent for Clustcnr ar;d Deschutes County C:oi7Imissioners February 15, 2018 Page 2 onerous requirements on agricultural landowners that cannot be justified in areas of EFU zoning. Riparian areas on EFU lands are currently protected by regulations that constrain or prohibit future development. EFU zoning rules expressly limit the permitted and conditional uses authorized in agricultural areas. In addition, areas of designated wetland are protected under local, state and federal law. Stringent regulations govern any proposed fill and. removal activity conducted in designated wetland areas. ,see OvIR Chapter 141, Division 85 (state law.) and 33 U.S.0 1344 (federal law). The Planning Commission recommendation would require a landowner to submit a `'Riparian Area Management Flan" (prepared by a professional wildlife biologist) in connection with any proposed land division in the FP Combining Zone. The plan must contain "prescriptions" that will preserve and protect the natural resources, habitat values and wildlife values of the Riparian Area. The ter in "Riparian Area" is broadly defined to include: (:r) the bed or banks of any stream or river; (2) the first loo feet measured at right angles from the ordinary high water marls of the stream or river; (3) all special flood hazard areas; and (q) all areas of wetland shown on the National Wetland Inventory ("NVtWI") map. The, inclusion of all NW:I areas in this expansive definition is inconsistent with the County Comprehensive Plan. The plan (Chapter 2.5 "Wetlands") states that the NWI snap was identified "based on high-altitude aerial photos with limited field work" and should not be used for "parcel -based decision making." The Comprehensive Plan further recognizes that the Oregon Division of State Lands (not Deschutes County) regulates development in designated wetland areas. As a result, there is no legal basis to impose additional County regulations on areas designated in the NWI map. Im_Iracts on ExistiL Agricultural -�alaeratiQiis The recommended code language would require the management of the broadly defined riparian area for natural resource and habitat values, without regard to impacts on existing agricultural operations. '(,he code language also imposes an additional ioo-foot setback requirement that would prohibit the construction of any new "structure„ other than wildlife fencing. I lie term "structure" includes anything constructed or having a fixed base or connection to the ground or another structure. The cumulative impact of these requirements will work to lirnit a landowner's ability to conduct and maintain agricultural operations on EFU zoned parcels. The language recommended by the Planning C:;omnrission requires the preservation of a large riparian area corridor as a condition of any proposed band Planned Chit 'Developments," The 111am,ing Conlnlission stated that the riparian area prutee.tion plan N -could be in addition to the existing io-foot conservation 6;asement requirE moat. IToNvever, no ad(aitionaal code language was provided by the Planning Commission, As a result, the cornrlicnLs provided in this Jet:Ler focus on the code languag(. initially proposed with amendment;; to ])e;t' 18,128.200,911d 19,19&2:10. Deschutes County Cornn-iissioners February 15, 2018 Page 3 division, without regard to the actual impact of the proposed land division on natural resource and habitat values. As a result, the expanded Riparian Area may constitute a taking of private property without just compensation under the Fifth Amendment and expose Deschutes County to takings liability. See Nollan V. California Coastal Conine n, 483 U.S. 825 (1987), Dolan v. Citij of Tigard, 512 U.S. 374 (1987), K00711 -Z V. St. Johns River Management District, 57() U.S. — (2013). Conclusion .... . _- Adoption of the FP Combining Zone will not: facilitate significant additional development on agricultural zoned lands in Deschutes County. EFTJ zoning and applicable wetland regulations constrain any development permissible in existing riparian areas. Use of the NWI map to define the Riparian Area stands contrary to language contained in the Corn.prehensive Plan. An agricultural landowner should not be sttl�jccted to additional levels of regulation and management responsibility as a condition of creating a single new parcel in the EFU zone. For the reasons set forth above, we ask that the Commission move forward with the adoption of the proposed FP Combining Zone, omitting the Riparian Area requirements as they pertain to EFU zoned properties. Thank you for this opportunity to provide comment. Sine.crely, Myles A. Conway cc: James Young, Larry Keith Legend Ta)dot -.05325 Streets LMZ—setback-100 —1 Neighbor setback300 TIO—West—Branch—setback-30 TID WestBranch -,',"I'Water Rights 65325 Domestic well lrrigaflon_pond Conifer Diversion Irrigation—line Side vard—setback-35 Cropland Proposed Greenhouse Current structures Proposed Aq accessory. bldg Proposed—wash—station Proposed_yeg_jSwale Proposed—utility—power 0 ProposecLSropane—tanks Prdposed—access_drive—improvement Proposed_parking Parkingpaces—Y2 Proposed screening Proposed_garbagejecycling Source� Esri, Digits;Gkobe, GebEye, Eafthstar IGN, and the GAS User Conirridnity 0 87.5 175 350 Feet N _j E 1 � � - , CNESIAirbus DS, USDA 1-1, USGS,I Aero GCS WGS 1984 Datu;: D—WGS-1984 Bam Mglgr 'N J� IM I I Sill� -A O—We Ing, Aq U a Qwn- V-4 � 4, Aga v J Source� Esri, Digits;Gkobe, GebEye, Eafthstar IGN, and the GAS User Conirridnity 0 87.5 175 350 Feet N _j E 1 � � - , CNESIAirbus DS, USDA 1-1, USGS,I Aero GCS WGS 1984 Datu;: D—WGS-1984 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 DATE: February 21, 2018 FROM: Isabella Liu, Community Development, TITLE OF AGENDA ITEM: Possible Marijuana Production Appeal, 4725 NE Oneil Way, Bend BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners is a possible appeal of an administrative decision approving a marijuana production facility in the Exclusive Farm Use Zone proposed by Swamp Fox Farm, LLC. The Board will consider Order No. 2018-014 and whether to call up the matter for review if the decision is appealed. See attached staff administrative decision for further background information. FISCAL IMPLICATIONS: None ATTENDANCE: Izze Liu, Assistant Planner 7 j 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: (543) 385-1764 http://vvway.deschutes.org/cd STAFF MEMO Date: February 21, 2017 To: Board of County Commissioners From: Izze Liu, Assistant Planner Re: Administrative Decision (File No. 247 -17 -000936 -AD) to Hear Potential Appeal The Board of County Commissioners (Board) will conduct a work session on February 26th at 1:30 PM and will consider hearing a potential appeal of an administrative decision (File No. 247 -17- 000936 -AD) approving a marijuana production application. Application On November 21, 2017, an application was filed for an Administrative Determination (AD) to establish a marijuana production facility at 4725 NE Oneil Way, Bend. The applicant requested approval to establish a marijuana production facility in the Exclusive Farm Use (EFU) zone. The proposal consists of a maximum mature plant canopy size of 4,000 square feet. The applicant is proposing to build a two-story addition connecting the existing two accessory farm structures on the subject property to utilize one grow building for the proposed marijuana production use. 11. Decision On December 28, 2017, the application was deemed complete after the applicant submitted additional information. The Planning Division issued an administrative decision without a public hearing for marijuana production on February 16, 2018, determining the applicant met the applicable criteria (Attachment 1). Notice of the decision was sent to neighboring property owners and those that provided comments. The decision becomes final if not appealed by 5:00 PM on February 28, 2018. III. Appeal Although no appeal has been filed yet, staff considers an appeal is likely based on public comments and communication with a neighbor's attorney. IV. 150 -day Issuance of a Final Local Decision The 150 -day period for issuance of a final local decision is May 27, 2018. Quality Services Performed zcdth Pritle V. Board Options Section 22.28.050 of the Deschutes County Code authorizes the Board of County Commissioners to initiate review of any administrative action or a Hearings Body's decision within 12 days of the date of mailing of the final written decision of the Planning Director or lower Hearings Body. The 12th day following the mailing date of this decision is February 28, 2018. Attachment 3 is a Board Order to initiate a de novo review of this file, should a timely appeal be filed. Attachments: 1. Administrative Decision for File No. 247 -17 -000936 -AD 2. Site Plan 3. Board Order to Initiate Review -2- ' Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend: Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd FINDINGS & DECISION FILE NUMBER: 247 -17 -000936 -AD APPLICANT: Swamp Fox Farm, LLC OWNER: Lee Property Management, LLC ATTORNEY: Jeremy Dickman, Clifton Cannabis Law PROPOSAL: The applicant requests approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use Zone. STAFF CONTACT: Izze Liu, Assistant Planner 1. APPLICABLE CRITERIA Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use (EFU) Zones Chapter 18.116, Supplementary Provisions Title 22, Deschutes County Development Procedures Ordinance IL BASIC FINDINGS A. LOCATION: The subject property has an assigned address of 4725 NE Oneil Way, Bend; and is identified on County Assessor Tax Map 14-13-25 as tax lot 200. B. LOT OF RECORD: The subject property is a legal lot of record pursuant to County file no. 247 -17 -000480 -LR. C. ZONING: The property is zoned EFU, and is designated Agriculture on the Deschutes County Comprehensive Plan. D. PROPOSAL: The applicant requests approval of an Administrative Determination to establish a marijuana production facility in the EFU Zone with a mature plant canopy size of 4,000 square feet. Quality Services Perfin-ined With Pi-ide E. SITE DESCRIPTION: The subject property is 39.09 acres in size and rectangular in shape. The property is accessed from NE Oneil Way, a secondary highway. The topography is relatively level with a moderate cover of vegetation. The majority of the property is irrigated pasture and it is developed with an existing dwelling and two accessory farm structures. All structures on the property are located in the southern half of the subject property. F. PUBLIC AGENCY COMMENTS: The Planning Division mailed a Notice of Application and received comments from the following agencies: 1. Deschutes County Building Division: Randy Scheid, Building Official, provided the following comments on November 30, 2017: Notice: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 247 -17 -000936 -AD Page 2 of 17 2. Deschutes County Assessor: Nora Wallace, Assessment Tech III, provided the following comments on December 4, 2017: I am responding for the Assessor's office to the Notice of Application noted above. This property is in farm deferral. 3. Deschutes County Planning Division: Peter Russell, Senior Transportation Planner, provided the following comments on December 4, 2017: I have reviewed the transmittal materials for 247 -17 -000936 -AD for a 4,000 - square foot marijuana production (growing) operation in the Exclusive Farm Use (EFU) zone at 4725 NE O'Neil Way, aka 14-13-25, Tax Lot 200. Deschutes County Code (DCC) at 18.116.330(B)(8) only requires proof of legal direct access to the property or access from a private easement for a grow of more than 5, 000 square feet of mature canopy. The proposal is for 4, 000 square feet of mature canopy, so the access requirement does not apply. The traffic study requirements of DCC 18.116.310 are not applicable for this marijuana production as the application is not going through site plan review and thus does not need to show compliance with DCC 18.124.080(J). Board Resolution 2013-020 sets an SDC rate of $3,937 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet. The applicant proposes a 2,400 -square -foot building (60 X 40) to produce 4,000 square feet of mature canopy. The County's SDC is based on the building's total square footage related to cannabis production and support and not the square footage of the mature canopy. The 2,400 square feet of greenhouses would produce 0.77 p.m. peak hour trips (2.4 X 0.32). The resulting SDC is $3,031 (0.77 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. 4. Deschutes County Road Department: Cody Smith, P.E., County Engineer, provided the following comments on December 6, 2017: I have reviewed the application materials for the above -referenced file number, proposing the establishment of marijuana production facility with 4,000 sq. ft. of mature canopy at 4725 NE Oneil Way, Redmond. The subject property does not border a County road. As such, Deschutes County Road Department has no comments regarding this application. 5. Central Oregon Irrigation District: Daniel Downing, GIS/Operations Technician, provided the following comments on December 8, 2017: COID FACILITIES: • Subject's property has the K-2-4 delivery ditch within its boundary o It has a 20' canal right of way • A crossing license must first be obtained from the district for any utility or roadway to cross or encroach upon COID's right of way • No permanent structures within COID's right of way are allowed. 247 -17 -000936 -AD Page 3 of 17 COID WATER RIGHTS: • Subject's property has 33.46 acres of COID water rights • COID requests a site plan • Please contact COID concerning use of water rights COID GUIDELINE STATEMENT • Review the following statement on marijuana operations COID response to Community Development Notice for Proposed Marijuana Production: Central Oregon Irrigation District (COID) serves this property with 33.46 acres of irrigation water during the irrigation season of April 1St through October 31St at a rate of up to 6 gallons per minute per acre. This water cannot be used for irrigation during the winter months. An additional source (not COID) of water is necessary to irrigate between November 1' and March 31St. If the recreational marijuana production facility is a greenhouse or other structure proposed to be built on top of the COID water right, land -user must allow COID annual access to the structure to document beneficial use of the water right. Structures on top of a water right for any purpose other than growing plants is not allowed. • Applicant should contact COID to determine status of water rights prior to construction of production facility. • Plot Plan is required to assist COID in determining if the proposed structure will be located on the water right or if a water transfer application is needed to transfer water to it. 6. The following agencies did not respond or had no comments: Deschutes County Environmental Soils Division, Oregon Department of Transportation, Redmond Fire & Rescue. G. PUBLIC COMMENTS: The Planning Division mailed a written notice of these applications to property owners within 750 feet of the subject property on November 28, 2017. In addition, the applicant submitted a Land Use Sign Affidavit indicating a proposed land use action sign was posted on the property on December 12, 2017. Below, staff summarizes issue areas identified by the public in written comments received prior to the date of this decision: Opposition: 1. Odor 2. Noise 3. Water source 4. Waste 5. Traffic Impacts 6. Electrical service to the subject property 7. Increase in crime 8. Negative impact on property values STAFF COMMENT: Applicable criteria of the DCC are addressed below. The Deschutes County Code (DCC) does not include approval criteria related to marijuana production and the issue areas listed in 7 and 8 above. For this reason, staff does not address those issues in this decision. 247 -17 -000936 -AD Page 4 of 17 H. REVIEW PERIOD: This application was submitted on November 21, 2017. It was deemed incomplete on December 19, 2017. After the applicant submitted additional information, the application was accepted and deemed complete on December 28, 2017. The 150th day on which the County must take final action on this application is May 27, 2018. III. FINDINGS: A. CHAPTER 18.16. EXCLUSIVE FARM ZONE Section 18.16.020. Uses Permitted Outright. The following uses and their accessory uses are permitted outright. S. Marijuana production, subject to the provisions of DCC 18.116.330. FINDING: The applicant is proposing to establish a marijuana production facility on the subject property, a use permitted outright subject to compliance with the applicable provisions of DCC 18.116.330. Compliance with the provisions of DCC 18.116.330 is addressed below. 2. Section 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant proposes to construct a two-story addition to connect the existing two accessory farm structures. This new structure will be the proposed marijuana grow building. The proposed height of the addition is 24 feet. This criterion will be met. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of.• 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The subject property has frontage on NE Oneil Way, a secondary highway requiring a 100 -foot front yard setback. The proposal is not for a nonfarm dwelling, therefore, the required 247 -17 -000936 -AD Page 5 of 17 side and rear yard setbacks are 25 feet. The proposed setbacks for the new grow building will be 725 feet from the northern property line, 735 feet from the western property line, 515 feet from the eastern property line and more than 500 feet from the southern property line. These criteria will be met. B. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS Section 18.116.330 Marijuana Production, Processing, and Retailing. A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, Rl, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, Rl, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant has proposed Marijuana Production in an EFU Zone. This section applies. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is 39.09 acres in size. This criterion is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. C. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is within the EFU Zone. The applicant is proposing to construct a two-story addition connecting the existing two accessory farm structures located on the subject property. All production will occur within this new grow building. As an ongoing condition of approval, marijuana production is prohibited in any outdoor area. Any proposed marijuana processing will require additional land use review. 247 -17 -000936 -AD Page 6 of 17 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: L The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: The applicant has proposed 4,000 square feet in mature plant canopy area. The maximum mature canopy size is 10,000 square feet as allowed under Section (c) for properties 20 acres to less than 40 acres in lot area. The subject property is 39.09 acres in size. This criterion will be met. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is not located in the MUA-10 Zone. These criteria do not apply. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed use includes one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site. An ongoing condition of approval will be included to ensure that only one OLCC license shall be allowed per legal parcel for the marijuana production use. 247 -17 -000936 -AD Page 7 of 17 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback(Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The submitted plot plan indicates the proposed grow building will be sited more than 100 feet from all property lines. The proposed setbacks for the new grow building will be 725 feet from the northern property line, 735 feet from the western property line, 515 feet from the eastern property line and more than 500 feet from the southern property line. The application materials also indicate that the proposed grow building will be sited more than 500 feet from any off-site dwelling based on the setbacks from all property lines. These criteria will be met. 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 1& 116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 1& 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 1&116.330(B)(7) shall not result in the marijuana 247 -17 -000936 -AD Page 8 of 17 producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: L Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: According to the applicant's burden of proof, there are no uses requiring a separation distance located within 1,000 feet from the proposed grow building. Based on the County's GIS mapping tool, staff has confirmed that there are no uses listed above within 1,000 feet of the propose grow building. These criteria will be met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. C. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: I. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. FINDING: The subject property takes access from NE Oneil Way, a secondary highway. At this time, the applicant proposes a mature plant canopy size of 4,000 square feet. Therefore, this criterion does not apply. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. 247 -17 -000936 -AD Page 9 of 17 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 stated that the proposed marijuana grow building will be an opaque, rigid building and the lighting will not be visible from the outside of the building from 7:00 p.m. until 7:00 a.m. the following day. The applicant is not proposing to construct the addition with any windows and the windows on the existing structures will be filled in and blacked out with black window film. On the exterior, the windows will be covered with metal to match the exterior siding and the interior will be enclosed with gypsum wall board. The doors of the building will be steel, fire -rated and with no glass or openings. The doors will have blackout curtains mounted inside the frame to prevent any light going out or coming in. A condition of approval shall be added to ensure compliance. 10. Odor. As used in DCC 18.116.330(6)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. FINDING: The applicant has submitted an odor report by Larry Scharf, P.E., a mechanical engineer licensed in the State of Oregon (#91818), with CEA Consulting Engineers. The report states odor will be controlled using AgriAir purifiers that utilize a photo -catalytic oxidation (PCO) process to remove bio -contaminants and cannabis odor. The applicant proposes to use three types of AgriAir Industrial Control Units described as AGRIAIR 1000-1, PG -1 and PG -3. The AGRIAIR 1000-1 and PG -1 purifiers are rated to control odors in a space up to 8,000 cubic feet. The PG -3 purifier is rated to control odors in a space up to 12,000 cubic feet. Each type of purifier is provided with photocatalytic generators, pleated carbon filters and MERV-11 filters. 247 -17 -000936 -AD Page 10 of 17 The building will be provided with the following AgriAir purification systems: 1. Five AGRIAIR 1000-1 units will be located in the drying, manicure, teens', mothers', and trim rooms. The combined capacity of 40,000 cubic feet for the air purifiers exceeds the actual volume of 24,000 cubic feet. 2. Two AGRIAIR PG -1 units will be located in the vegetative rooms. Their combined capacity of 16,000 cubic feet exceed the actual volume of 14,500 cubic feet. 3. Four AGRIAIR PG -3 units will be located in the bloom rooms. The combined capacity of 48,000 cubic feet for the air purifiers exceed the actual volume of 42,120 cubic feet. 4. The PG -1 and PG -3 units will be utilized in conjunction with a supply fan and sheet metal air ductwork system to insure an even distribution over the entire floor plan. The 1000-1 units will be suspended from the structure and have a self-contained fan system to provide room coverage. Based on the report provided by Mr. Scharf, if the system described above is constructed within the guidelines and maintained per the filter and fan manufacturer's recommendations, the odor control system will control odor so as to not unreasonably interfere with neighbor's use and enjoyment of their property. These criteria will be met. 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 has submitted a noise report by Larry Scharf, P.E., a mechanical engineer licensed in the State of Oregon (#91818), with CEA Consulting Engineers. The HVAC air handing unit acoustic characteristics were simulated by use of the Trane Acoustics Program (TAP) utilizing the existing site conditions and property lines. The computer simulation indicated that the largest units would operate with a db of 41 at the property line. The AgriAir purification units are located indoors and use small fractional HP motor/fans. The applicant is proposing to construct sound attenuation walls around the four large units on the east wall and two large units on the west elevation. The units will be enclosed with CMU block or wood framing. Each wall partition will be three sided, 10 feet wide, 8 feet tall and the inside of each wall will be attached with an ANC-AB220 quilted fiberglass absorber. The applicant proposes to apply two lapped sections to the interior of each wall to achieve a height of 8 feet and permanently attach each section with grommets and secure to the wall with galvanized hardware. The report states the sound attenuation walls will ensure that the noise from the odor control equipment will not exceed 30 db(A) from all property lines. These criteria will be met. 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: 1 "Teens" refers to the stage after the clone stage and prior to the flowering stage. 2 "Mothers" refers to the plant held in the vegetative state. The plant is non -flowering and is used for cuttings to produce clones which are the beginning of new grow. 247 -17 -000936 -AD Page 11 of 17 a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. C. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: The subject property is not in a Landscape Management or Wildlife Area Combining Zone. No razor wire is proposed. No additional fencing has been proposed. 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. These criteria will be met. 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 is served with 33.46 acres of irrigation from Central Oregon Irrigation District (COID). COID has stated in their "will serve" letter the surface delivery of irrigation water is provided under State issued primary water right certificate #83571 and supplemental certificate #76714. Delivery of irrigation water is during the irrigation season of April 1St through October 31St. For periods of time outside of the irrigation season, the applicant proposes to have water delivered to the property by ABC Lightning, LLC. The applicant submitted a "will serve" letter from ABC Lightning, LLC, stating they are willing and able to serve an estimated 8,000 gallons of water each month for the proposed marijuana production use and their water source is from Avion Water Company, Inc. Avion Water Company, Inc. has quasi -municipal water' rights. 3 "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 247 -17 -000936 -AD Page 12 of 17 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing is proposed. This criterion does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: The Central Electric Cooperative provided a "will serve" letter dated January 22, 2018. The letter states that Central Electric Cooperative has reviewed the provided load information (two 800 amp Single phase services) associated with the cannabis grow facility and is willing and able to serve this location in accordance with the rates and policies of the company. This standard is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights- of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: The applicant states the security cameras will be confined to the interior of an opaque building and the security room. The cameras will not be directed to record outside of the property boundaries. An ongoing condition of approval will be included to ensure compliance with DCC 18.116.330(B)(16). 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 proposes to store the marijuana waste inside of a sealed commercial waste receptacle with a locking bar. The secured waste receptacle will be stored inside a ten -foot tall, walled enclosure with a roof and dead bolt locked doors, which will remain locked at all times. The structure is a bear proof structure for odor reduction and barrier to access. The marijuana waste will be mixed with other waste to ensure it is rendered unusable and unrecognizable. The applicant has stated that High Country Disposal will be contacted for pickup as soon as waste is deposited. Based on the submitted site plan, the waste receptacle will be located on the west side of the proposed grow building. As an ongoing condition of approval, marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property. 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 streamflow designated in a basin program. 247 -17 -000936 -AD Page 13 of 17 a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or C. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is not in the MUA-10 Zone. This section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. FINDING: The subject property was not a lawfully established medical marijuana grow site. This section does not apply. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited. L 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)(0), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. C. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: I. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. V. Public Parks. Vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: As an ongoing 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. 247 -17 -000936 -AD Page 14 of 17 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: L Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. C. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. As an ongoing condition of approval, the annual reporting requirements of DCC 18.116.330(D) shall be met. IV. CONCLUSION Based on the foregoing Findings of Facts, staff finds that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. V. DECISION APPROVAL, subject to the following conditions of approval. 247 -17 -000936 -AD Page 15 of 17 VI. ONGOING CONDITIONS OF APPROVAL A. Use & Location: Marijuana production is conditionally approved inside the approved grow building. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. B. Buildinq Height: No building or structure, including greenhouses, shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. C. No Outdoor Production: Marijuana production is prohibited in any outdoor area. D. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall not exceed 4,000 square feet at any time. E. Lighting: The following lighting standards shall be met. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. 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. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. F. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. G. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. H. Fencing: Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. I. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. J. Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. K. Waste: The marijuana waste receptacle shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. L. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. M. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. VII. DURATION OF APPROVAL: 247 -17 -000936 -AD Page 16 of 17 The applicant shall complete all conditions of approval and obtain building permits for the proposed use within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by: Izze Liu, Assistant Planner �� 1 iKR-- Reviewed by: Anthony Raguine, Senior Planner 247 -17 -000936 -AD Page 17 of 17 SECTION 25 T14S R.13E.W.M. DESCHUTES COUNTY i"=aoo' ti. JQ a2 14 13 25 14 13 25 DISTANCE TO WEST PROPERTY LINE 730 FEET by N ;a to X N.T.S. 60' DISTANCE TO EAST PROPERTY LINE 525 FEET 1LdM�I�IH 'II�I�I�O .gNn .uY3dOVcl HIHON 01 691 cx V)a �z <) 0 Z EL R w cr CL gNn ud3dOgd ti CL (W o .gNn .uY3dOVcl HIHON 01 691 V)a �z <) 0 Z EL R w cr CL gNn ud3dOgd ti CL (W o cr cff � Z5 0 CL o 3-, P:: CD -)JAH IGN,o �z <) R w cr CL gNn ud3dOgd ti HLnos oj o cr cff � Z5 0 CL o 3-, P:: CD to CL :4 CQ -------—rW a m 4Z LQ Lu ck: M it cc 41 Lj 'ZI U) U-1 un a cr Zap Uj ct z CL jI 4 �,z Ow L:�Q: OD U) U70 z j� Lj LU n� Ir LL Oc QL LUg c) ul X H () La Lu Z) o Ld oc� (n>OSW UL jW ao� ::k w C) I>-, - — oo:!Woo U, crLd EN, R Z, (n L, Lou -)JAH IGN,o usift R w cr CL gNn ud3dOgd -)JAH IGN,o R gNn ud3dOgd HLnos oj o cr cff � Z5 0 CL Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 DATE: February 21, 2018 FROM: Isabella Liu, Community Development, TITLE OF AGENDA ITEM: Possible Marijuana Production Appeal, 65325 Highway 20, Bend BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners is a possible appeal of an administrative decision approving a marijuana production facility in the Exclusive Farm Use Zone proposed by Linda Hopmann. The Board will consider Order No. 2018-013 and whether to call up the matter for review if the decision is appealed. See attached staff administrative decision for further background information. FISCAL IMPLICATIONS: None ATTENDANCE: Izze Liu, Assistant Planner Date: February 21, 2017 Community Development Department Manning Division 804ing Safety Division Environmental Sods Division P,O, Box 6095 117 NW Lafayette Avenue Bend, Oregon 97785-6-G85 Phone: (541) 388-6575 Fax: (541) 385-1764 http://wmv,deschutes.org/cd STAFF MEMO To: Board of County Commissioners From: Izze Liu, Assistant Planner Re: Administrative Decision (File No. 247 -17 -000755 -AD) to Hear Potential Appeal The Board of County Commissioners (Board) will conduct a work session on February 26th at 1:30 PM and will consider hearing a potential appeal of an administrative decision (File No. 247 -17- 000755 -AD) approving a marijuana production application. I. Application On September 15, 2017, an application was filed for an Administrative Determination (AD) to establish a marijuana production facility at 65325 Highway 20, Bend. The applicant requested approval to establish a marijuana production facility in the Exclusive Farm Use (EFU) zone. The proposal consists of a maximum mature plant canopy size of 10,000 square feet within five new greenhouses. II. Decision On November 14, 2017, the application was deemed complete after the applicant submitted additional information. The Planning Division issued an administrative decision without a public hearing for marijuana production on February 16, 2018, determining the applicant met the applicable criteria (Attachment 1). Notice of the decision was sent to neighboring property owners and those that provided comments. The decision becomes final if not appealed by 5:00 PM on February 28, 2018. III. Appeal Although no appeal has been filed yet, staff considers an appeal is likely based on public comments. IV. 150 -day Issuance of a Final Local Decision The 150 -day period for issuance of a final local decision is May 5, 2018. Quality Services Petfon>' ed 7vit : Priei!e V. Board Options Section 22.28.050 of the Deschutes County Code authorizes the Board of County Commissioners to initiate review of any administrative action or a Hearings Body's decision within 12 days of the date of mailing of the final written decision of the Planning Director or lower Hearings Body. The 12th day following the mailing date of this decision is February 28, 2018. Attachment 3 is a Board Order to initiate a de novo review of this file, should a timely appeal be filed. Attachments: 1. Administrative Decision for File No. 247 -17 -000755 -AD 2. Site Plan 3. Board Order to Initiate Review -2- FILE NUMBERS OWNER/APPLICANT: PROPOSAL: Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6805 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd FINDINGS & DECISION 247 -17 -000755 -AD Linda A Hopmann Revocable Living Trust Linda Hopmann The applicant is requesting approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use Zone. STAFF CONTACT: Izze Liu, Assistant Planner 1. APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, County Zoning Chapter 18.16, Exclusive Farm Use (EFU) Zone Chapter 18.84, Landscape Management (LM) Combining Zone Chapter 18.116, Supplementary Provisions Title 22 of the Deschutes County Code, the Development Procedures Ordinance II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 65325 Hwy 20, Bend; and is further identified on Assessor's Map 16-11-23 as Tax Lot 515. B. ZONING: The property is zoned EFU and is within the LM Combining Zone associated with Highway 20. C. LOT OF RECORD: The subject property is a legal lot of record as it was platted as Parcel 1 of MP -78-62. The parcel was later adjusted through County file no. LL -90-76 to the current property configuration. D. SITE DESCRIPTION: The subject property is approximately 29.66 acres in size and irregular in shape. The property is accessed from Highway 20 on the east. The topography is relatively level and moderately covered in vegetation along the canal and southern property line. The West Branch Tumalo Feed Canal traverses the property generally south to north. It is developed with a nonfarm dwelling, five general farm buildings and a corral fence fair on the eastern portion of the subject property. Quality Services Pcrfwwied zvith Pride E. SURROUNDING LAND USES: The subject property is surrounded by properties zoned EFU and Rural Residential. The properties to the north, south and west are zoned EFU and are receiving special farm assessment. The majority of the EFU properties in this area are residentially developed with some farm use. The properties to the east are zoned Rural Residential and are residentially developed. F. PROPOSAL: The applicant is proposing to establish a marijuana production facility (grow) in the EFU Zone. G. PUBLIC COMMENTS: The Planning Division mailed a written notice of these applications to property owners within 750 feet of the subject property on September 20, 2017. In addition, the applicant submitted a Land Use Sign Affidavit indicating a proposed land use action sign was posted on the property on September 25, 2017. Staff has attempted to summarize requests, and concerns identified by the public in written comments received prior to the date of this decision: Opposition: 1. Odor 2. Visual impacts 3. Noise 4. Water usage 5. Traffic impacts 6. Increase in crime 7. Negative impact on property values 8. Federal law should supersede state and local laws 9. Increased development of marijuana production facilities along Highway 20 10. Increase of drug use and addictions problems 11. Changes to the rural character and livability of the neighborhood STAFF COMMENT: Applicable criteria of the DCC are addressed below. The Deschutes County Code (DCC) does not allow the Planning Division to approve or deny this application based on the concerns listed under 6 through 11 above. Support: 1. If this application is denied, neighbors might complain about similar farm use impacts, such as odor or noise from animals. 2. DCC 9.12.080. Protection of Farm and Forest Uses on Lands Zoned for Resource Use voids DCC 18.116.330. Marijuana Production, Processing, and Retailing 3. The subject application should not be processed as a Land Use Action 4. Deschutes County Code standards exceed "reasonable" Time, Place, and Manner restrictions allowed by statute H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Deschutes County Building Division: Randy Scheid, Building Official, provided the following comments on September 25, 2017: Notice: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be 247 -17 -000755 -AD Page 2 specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 2. Deschutes County Planning Division: Peter Russell, Senior Transportation Planner, provided the following comments on September 25, 2017. I have reviewed the transmittal materials for 247 -17 -000755 -AD for a marijuana production (growing) operation in the Exclusive Farm Use (EFU) and Landscape Management (LM) zones at 65325 Hwy 20, aka 16-11-23, Tax Lot 515. Deschutes County Code (DCC) at 18.116.330(B)(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. 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 proposed in the burden of proof five greenhouses totaling 14,400 square feet for the production and support of cannabis. The County's SDC is based on the building's total square footage related to cannabis production and support and not the square footage of the mature canopy. The 14,400 square feet will produce 4.6 p.m. peak hour trips (14.4 X 0.32). The resulting SDC is $18,110 (4.6 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. 3. Deschutes County Assessor: Nora Wallace, Assessment Tech III, provided the following comments on September 29, 2017: I am responding for the Assessor's office to the Notice of Application for the above mentioned file. The property is in farm deferral. 4. Deschutes County Road Department: Cody Smith, P.E., County Engineer, provided the following comments on October 3, 2017: Deschutes County Road Department does not have any information regarding private bridges. The weight ratings for private bridges would be a concern for the bridge owner and for the fire district, who is responsible for enforcing State Fire Code. The County does not have road authority (as described in ORS 368 and ORS 810) over private roads. DCC 17.48.180 and other applicable sections of the Deschutes County Code give us authority over design and construction standards for private roads within the land use nexus for subdivisions, partitions, and site plans only. 247 -17 -000755 -AD Page 3 5. Bend Fire Department: Jeff Bond, Deputy Fire Marshal, provided the following comments on October 5, 2017: 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. • 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 Ib. 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: 247 -17 -000755 -AD Page 4 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. 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 247 -17 -000755 -AD Page 5 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. 6. Oregon Department of Transportation: David Knitowski, P.E., AICP, Region 4 Access Management Engineer, provided the following comments on October 9, 2017: Thank you for notifying the Oregon Department of Transportation (ODOT) and providing an opportunity to comment on Deschutes County File Number 247 -17- 000755 -AD, 65325 US 20, TL 515 Map 16S 11 E23, Marijuana Production on US 20 west of Tumalo. This email message is submitted for inclusion in the record and ODOT should be considered a party to the land use action. Please provide a copy of the land use decision, and notice of any time extensions or continuances, to ODOT at the address provided below, or you may provide notice to ODOT via e-mail. Electronic format is preferred. ODOT staff has completed a review of the submitted application and has the following comments. The property abuts the McKenzie -Bend Highway No. 017 (US Highway 20) and is subject to state laws administered by ODOT. These laws may require the applicant to obtain one or more state permits to carry out the intended use of the property, or to otherwise comply with state law without need for a permit. There is an existing highway approach ("driveway') on this property, which is permitted for a single-family dwelling unit and a farm. Since the approach is permitted, the Change of Use rule in OAR Chapter 734, Division 51 applies; however, the proposal will not constitute a Change of Use, and no further action is required by the applicant. The applicant states the site will generate a maximum of 30 vehicles per day. That's 60 tris per day (30 "ins" and 30 "outs'). The threshold that would constitute a Change of Use is 500 or more new trips per day. Similarly, if one assumes the peak hour trips constitute 10 percent of the daily trips, the proposed use would generate an additional 6 peak hour trips and the threshold that would constitute a Change of Use is 50 or more new peak hour trips. To address Nunzie Gould's concern of the need for a westbound left turn lane on US 20, it won't be warranted. If one assumes the existing use (single-family dwelling unit and a farm) generates 1 peak hour trip and the proposed use generates an additional 6 peak hour trips, and one also assumes all 7 trips are westbound left turns in to the site, ODOT's traffic volume warrant for a left turn lane on the highway won't be met, because the warrant isn't met when the left turning volume is less than 10 vehicles per hour (vph). 7. Oregon Department of State Lands: Christine Stevenson, Jurisdiction Coordinator, provided the following comments on October 18, 2017: Based on the available information on current site conditions, it appears that there may be wetlands or waterways on this property that are subject to DSL jurisdiction. This 247 -17 -000755 -AD Page 6 site should be evaluated for wetlands in the early spring prior to the start of irrigation season and in the fall after irrigation had been cutoff from the property. Christine Stevenson provided additional comments on December 1, 2017: No jurisdictional wetlands or waters were found in the area identified for the greenhouses. The pond is non jurisdiction per OAR 141-085-0515(6). 6. The following agencies did not respond or had no comments: Deschutes County Road Department, Deschutes County Environmental Soils, and Redmond Airport. J. REVIEW PERIOD: This application was submitted on September 15, 2017. The Planning Division deemed this application incomplete on October 10, 2017. Upon submission and review of additional materials, the Planning Division deemed this application complete on November 14, 2017. On January 24, 2018, the applicant requested to toll the clock for 215 days. The applicant has requested to remove the toll on February 15, 2017. The 150th day on which the County must take final action on this application is May 5, 2018. III. FINDINGS: A. CHAPTER 18.16. EXCLUSIVE FARM ZONE Section 18.16.020. Uses Permitted Outright. The following uses and their accessory uses are permitted outright.- S. utright.S. Marijuana production, subject to the provisions of DCC 18.116.330. FINDING: The applicant is proposing to establish a marijuana production facility on the subject property, a use permitted outright subject to compliance with the applicable provisions of DCC 18.116.330. Compliance with the provisions of DCC 18.116.330 is addressed below. 2. Section 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant is proposing to construct five new greenhouses, each with a height of 19 feet. This criterion will be met. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of.- 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special 247 -17 -000755 -AD Page 7 assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The subject property has frontage on Highway 20, a primary highway requiring a 100 - foot front yard setback. The proposal is not for a nonfarm dwelling, therefore, the required side and rear yard setbacks are 25 feet. The applicant is proposing to construct five greenhouses in the southeastern portion of the subject property. The greenhouses will be approximately 545 feet from the northern property line, 60 feet from the southern property line, 585 feet from the eastern property line, and 1,150 feet from the western property line. Based on the submitted application materials, these criteria will be met. Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. B. CHAPTER 18.84. LANDSCAPE MANAGEMENT COMBINING ZONE Section 18.84.050. Use Limitations. A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. FINDING: The applicant is proposing to construct five greenhouses which does not require a building permit or an agriculture exempt permit. Therefore, the criteria of the Landscape Management Combining Zone does not apply. C. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS Section 18.116.330 Marijuana Production, Processing, and Retailing. A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, Rl, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, R/, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant has proposed Marijuana Production in an EFU Zone. This section applies. 247 -17 -000755 -AD Page 8 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 29.66 acres in size. This criterion is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. C. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is within the EFU Zone. The applicant has proposed that all production will occurwithin five new greenhouses. As an ongoing condition of approval, marijuana production is prohibited in any outdoor area. Any proposed marijuana processing will require additional land use review. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that. i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 247 -17 -000755 -AD Page 9 FINDING: The applicant has proposed a maximum of 10,000 square feet in mature plant canopy area, as allowed under Section (c) for properties 20 acres to less than 40 acres in lot area. The subject property is 29.66 acres in size. This criterion will be met. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is not located in the MUA-10 Zone. These criteria do not apply. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed use includes one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The submitted plot plan indicates the proposed greenhouses will be sited more than 100 feet from all property lines, except for the southern property line. The submitted materials indicate that the greenhouses will be located 60 feet from the southern property line. In order to place the greenhouses in a location that affords greater mitigation of visual impacts, the applicant is requesting an exception to the setback requirement from the southern property line. The applicant proposes several reasons for the setback exception to be approved which are summarized below: 247 -17 -000755 -AD Page 10 Visual The applicant proposes to construct five greenhouses in the southern portion of their property which is depicted on the plot plan provided with the application materials as shown in Figure 1. The applicant proposes to locate the greenhouses in this specific area to utilize the existing vegetation to the east, south and north to provide adequate screening from Highway 20 and from adjacent neighbors. The existing dwelling and accessory farm structures will also provide additional screening from Highway 20 if the greenhouses are established in the proposed location. The applicant has worked with the Tumalo Irrigation District to identify approximately 3.5 acres of cropland that contains unconsolidated roads and is experiencing encroachment of non-native plant species. The identified 3.5 acres is where the applicant proposes to establish the marijuana production use as this area has not been used as cropland. To the west of the proposed location, a fence divides this unproductive area from the productive crop area. The designated productive area is used to produce hay. On December 20, 2017, staff conducted a site visit to the subject property. A Google Maps image of the subject property captured in September 2014, is shown in Figure 2. This image is an accurate depiction of the view staff had while driving to the subject property. Figure 3 shows an aerial image from Terra Server captured in December 2017 and a red arrow indicating the vehicle location for the view shown in Figure 2. Staff concurs with the applicant that proposed location will afford equal or greater mitigation of visual impacts. 247 -17 -000755 -AD Page 11 Figure 3 Odor The applicant proposes to use a high pressure ring -type fogger installed at all exhaust fan outlets. The fogger will be wired into the exhaust fan control system to turn on whenever the exhaust fan control system is energized. A mechanical engineer licensed with the State of Oregon has certified that the proposed odor control system will meet the requirements for odor control (DCC 18.116.330(6)(10)). Staff finds that because the odor control is designed in a way to eliminate all 247 -17 -000755 -AD Page 12 odor, the location of the proposed greenhouses will not affect the odor in any way. Furthermore, odor control systems are required to be in use at all times marijuana production is occurring and will be a condition of approval required in the findings addressing DCC 18.116.330(B)(10) below. Staff concurs with the applicant that proposed location will afford equal mitigation of odor impacts. Noise A mechanical engineer licensed with the State of Oregon has certified that noise will not be generated from the exhaust fans or split system HVAC units during the hours of 10 pm and 7 am. The split system HVAC units and exhaust fans in each greenhouse will have automatic controls that prevent them from operating during these hours. When the split system HVAC units and exhaust fans are not operating, there will be no air or odor being exhausted outside of the greenhouses. Staff concurs with the applicant that proposed location will afford equal mitigation of noise impacts. Lighting The applicant has stated in the burden of proof that the greenhouses will not be equipped with artificial lighting. A condition of approval will ensure compliance. Staff finds that because no lighting is proposed, the location of the greenhouses will not affect this criterion. Staff concurs with the applicant that proposed location will afford equal mitigation of lighting impacts. Privacy The applicant has provided an expanded plot plan to include adjacent properties and has identified the dwellings on those properties. The closest dwelling to the subject property is to the north. The applicant is proposing to site the greenhouses on the southern end of the property. Based on the measurement tool on Dial and the submitted aerial image of the surrounding properties, the proposed greenhouses will be located over 1,000 feet from both the dwelling to the north and to the south. Additionally, the applicant states that a fully operational video surveillance recording system is required by OLCC and will be directed to record only the subject property and public right-of-way. The applicant states that the cameras will not record any neighbor's properties or infringe on their privacy. Staff finds that any impacts to the neighbor's privacy are not expected to be increased by locating the greenhouses in the proposed area. Access The subject property has a single driveway accessed off of Highway 20. All of the existing structures are accessed from this single driveway and this access has been utilized for agricultural operations for many decades. The greenhouses are proposed to be located in an area that would take the same access. Based on the measurement tool on Dial, the proposed location is over 600 feet from the access point which is also behind all of the existing development. The proposed greenhouses will not block sight distances for vehicles nor are they located in a required Clear Vision Area (DCC 18.116.020). Staff concurs with the applicant that proposed location will afford equal or greater mitigation of access impacts. For the above reasons, staff finds the reduction in the setback requirements from the southern property line is approved because the applicant has established that the greenhouses in the proposed location can 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: 247 -17 -000755 -AD Page 13 i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and V. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. C. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: Nineteen properties are wholly or partially within 1,000 feet of the subject property according to the applicant's burden of proof. The applicant has stated that none of these properties are in a use described in this section or are subject to subsection (c). No property within 1,000 of the subject property has been identified in the record as having one of the uses identified in these criterion. Therefore, these criteria will be met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. C. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement The written consent shall: 247 -17 -000755 -AD Page 14 L 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: The applicant proposes a maximum canopy size of 10,000 square feet. The property has frontage and access directly onto Highway 20 to the east. These criteria will be met. 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 is proposing to construct five greenhouses without any new lighting for the marijuana production use. The existing residential lighting on the subject property will comply with DCC 15.10 and is designed to facilitate the general safety of employees and farm guests and to preserve rural vistas. The applicant is not proposing any commercial outdoor lighting fixtures, street lighting, laser source lights or searchlights. A condition of approval will ensure compliance. 10. Odor. As used in DCC 1&116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. 247 -17 -000755 -AD Page 15 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 has submitted an odor and noise report by Robert E. James, P.E. (65108P), a mechanical engineer licensed in the State of Oregon with Cole Breit Engineering. The report states odor will be mitigated using high pressure ring -type foggers designed by Fogco. Each greenhouse will be equipped with foggers installed at the exhaust fan outlets and the pumps for the foggers will be interlocked with the exhaust fans so that the foggers are operating while the fans are running. This method ensures that all exhaust air leaving the greenhouses will be treated for odor control. An ongoing condition of approval will be included to ensure compliance with DCC 18.116.330(B)(10). 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 provided an odor and noise report by Rob James, P.E. (65108P), a mechanical engineer licensed in the State of Oregon with Cole Breit Engineering. Mr. James states that the greenhouse split system HVAC units and the exhaust fans will have automatic controls that prevent them from operating at night between the hours of 10 pm and 7 am. When the fans are not operating, there will be no air or odor being exhausted outside of the greenhouse. Therefore, no noise will be generated from the greenhouses between 10 pm and 7 am. An ongoing condition of approval will be included to ensure compliance with DCC 18.116.330(B)(11). 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. 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 247 -17 -000755 -AD Page 16 subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. C. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: The subject property is within the Landscape Management Zone. The applicant is proposing to use muted earth tones for all newly proposed fencing. No razor wire or temporary materials are proposed. The proposed greenhouses will be surrounded by mature trees that screen the proposed structure from neighbors and Highway 20. 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 applicant has submitted copies of the Oregon Water Resources Department water right certificates in their application materials. The subject property has a total of 17 acres of appurtenant water rights delivered by the Tumalo Irrigation District. Certificate 74146 shows 5.75 acres of water rights and Certificate 74147 shows 11.25 acres of water rights. The applicant has also stated that the proposed marijuana production will only operate during the agricultural irrigation season and utilize current irrigation infrastructure. This criterion is met. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing is proposed. This criterion does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such 247 -17 -000755 -AD Page 17 company is able and willing to serve the operation, shall be provided. FINDING: The Central Electric Cooperative provided a "will serve" letter dated July 18, 2017. The letter states that Central Electric Cooperative has reviewed the provided load information (new 1200 amp three phase 480 volt service) associated with the grow facility and is willing and able to serve this location in accordance with the rates and policies of the company. This standard is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights- of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: The applicant states the security cameras shall be installed to comply with OLCC regulations and will be directed to record the subject facility and public right of way, as necessary. An ongoing condition of approval will be included to ensure compliance with DCC 18.116.330(B)(16). 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 proposes to store the marijuana waste inside of a secure waste disposal located within the limited access area'. The waste will be stored there for at least three days prior to Bend Garbage Company's scheduled pick-up date. As an ongoing condition of approval, marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property.- a. roperty.a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or C. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is not in the MUA-10 Zone. This section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(6)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. 1 "Limited Access Area" means a building, room, or other contiguous area on a licensed premises where a marijuana item is produced, processed, stored, weighed, packaged, labeled, or sold, but does not include a consumer sales area on a licensed retailer premises. OAR 845-025-1015(29) 247 -17 -000755 -AD Page 18 FINDING: The subject property was not a lawfully established medical marijuana grow site. This section does not apply. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(0), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. C. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: I. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. V. Public Parks. Vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: As an ongoing 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. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in 247 -17 -000755 -AD Page 19 compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. C. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. As an ongoing condition of approval, the annual reporting requirements of DCC 18.116.330(D) shall be met. IV. CONCLUSION Based on the foregoing Findings & Facts, staff finds that the proposed application for marijuana production can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. V. DECISION APPROVAL, subject to the following conditions of approval. VI. ONGOING CONDITIONS OF APPROVAL A. Use & Location: Marijuana production is conditionally approved exclusively inside the five proposed greenhouses. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. B. Building Height: No building or structure, including greenhouses, shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. C. No Outdoor Production: Marijuana production is prohibited in any outdoor area. D. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall not exceed 10,000 square feet at any time. E. Lighting: Any new lighting inside of the proposed greenhouses 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. 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 247 -17 -000755 -AD Page 20 projected below the horizontal plane through the lowest light -emitting part. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. All exterior lighting shall be shielded so that direct light does not project off site. F. Odor: An effective odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. G. Noise: 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. H. Fencing: If fencing is used, it shall be finished in a muted brown, green, or natural wood color and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. 1. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. J. 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. K. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. L. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production and/or Processing are conducted on the site. Marijuana production and processing are prohibited in any outdoor area. M. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. VII. DURATION OF APPROVAL: The applicant shall complete all conditions of approval and obtain placement permits the proposed use within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION 247 -17 -000755 -AD Page 21 Written by: Izze Liu, Assistant Planner Reviewed by: Will Groves, Senior Planner 247 -17 -000755 -AD Page 22 L, `iG11F=^; 5PNln HE^'U� h„SES«.,ENT PVfiPOSE ONLY SECTION 23 T.16S. R.11 E. W.M. 161123 DESCHUTES COUNTY 115 V = 400' e V 1 W T k n' 1IXM1 I i j Ii I 1161 4, I I File Number: 247 -17 -000755 -AD 2-7 I 65325 Hwy 20 '^ Bend, OR 97703` r IL SS>. ..I 614 22 — 1611 23 0 C O c Q CL a n. n. n. a. o. a 32 � L i 0 CL $ c� co a it it 1 N rn O 0 IQ F! 2 I� o J 0 �a F Ioz, U)c9 i Io; � � E < F I E rr i 1( ZE 0 F Ioz, U)c9 i � � E < F I E rr 0 Plot Plan Taxiot Legend Taxiot 65325 ,,/,"/",Water Rights 65.325 Domestic well Streets Irrigation_pond l at 'Conifer — — LMZ setback 100 Diversion I_ I Neighbor setback 300 irrigation_ line r -r- 5ide_yard_setback 35 110 West Branch setback 30 Cropland � Proposed—Greenhouse T1D West Branch Current structures 11,111 Proposed Ag accessory_bldg Proposed—wash—station Proposed veg Swale Proposed_utilityDower Q Proposed_propane tanks Proposed_access drive improvement Proposed_parking M l at t � � qf' S` Y, A 5-1t41,5 a;. 42 Y Proposed—wash—station Proposed veg Swale Proposed_utilityDower Q Proposed_propane tanks Proposed_access drive improvement Proposed_parking M l a;. Espy, Dj�qft lGlob( o6ypL v FGhi, and the GIS User Cc `^ S� c -v l Espy, Dj�qft lGlob( o6ypL v FGhi, and the GIS User Cc 15 VAO. Awa Parking_spaces v2 Proposed screening Proposed_c arbage recycling YIS, 0 87.5 175 350 Feet " r i i i Prepared by: L. Jones, 08/25/2017 w E GCS WGS 1984 Datum: D WGS 1984 S Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 DATE: February 21, 2018 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: Preparation for Public Hearing: Appeal of a Marijuana Production Decision at 25890 Alfalfa Market Road RECOMMENDATION & ACTION REQUESTED: The applicant (PSBS Holdings LLC) requested approval of an Administrative Determination to establish a marijuana production facility in the EFU Zone with a maximum of 10,000 square feet of mature plant canopy. The applicant was approved for a setback exception from the eastern property line and from the closest dwelling to the east. ATTENDANCE: Jacob Ripper SUMMARY: The purpose of this work session item is to provide an overview of the proposal, the staff decision, and issue areas that are likely to be discussed at the February 28th public hearing. This work session will also provide an opportunity for the Board to ask staff clarifying questions. All appeal concerns are discussed in detail in the attached Staff Memorandum. There are 10 attachments to the memo, which -are -included in_ this packet. ___ S� Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6405 117 NW Lafayette Avenue Bend. Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes,org/cd STAFF MEMORANDUM TO: Board of County Commissioners FROM: Jacob Ripper, Associate Planner HEARING DATE: February 28, 2018 RE: Public Hearing on an appeal of an Administrative Determination for Marijuana Production. File W 247-18-000049-A (247 -17 -000831 -AD). APPLICANT: PSBS Holdings LLC OWNER: Daniel & Mary Stoller APPLICANT'S ATTORNEY: Michael R. Hughes APPELLANT: Tye Cattle Co., c/o Bill Tye APPELLANT'S ATTORNEY: Elizabeth Dickson, Dickson Hatfield LLC PROPOSAL: The applicant requests approval of an Administrative Determination to establish a marijuana production facility in the EFU Zone with a maximum of 10,000 square feet of mature plant canopy. The applicant requests a setback exception from the eastern property line and from the closest dwelling to the east. STAFF COMMENT: This memorandum does not replace previous findings in the Administrative Determination (Findings and Decision), but only provides clarification from staff for the Board to consider in respect to the appellant's objections listed in the Notice of Appeal. I. PURPOSE The Deschutes Board of County Commissioners ("Board") will hold a public hearing to consider an appeal, filed by Appellant Bill Tye, in response to an Administrative Determination approving a marijuana production facility proposed by PSBS Holdings LLC. The subject property is located at 25890 Alfalfa Market Road and is zoned Exclusive Farm Use (Attachment 1). The appeal Quality Set -vices Perftwincd 7vith Pt-ide materials identify numerous concerns regarding County regulations and impacts to the surrounding area. The Board issued an order' on January 17, 2018, to call up the matter for their review if an appeal was filed. The appeal was timely filed on January 17, 2018. This memorandum supplements the Administrative Determination for the above -referenced land use application (Attachment 2) and summarizes the concerns raised in the Notice of Appeal (Attachment 3). II. PUBLIC COMMENTS RECEIVED The Planning Division mailed a written notice of this application to property owners within 750 feet of the subject property on October 18, 2017, and a notice of the public hearing on January 31, 2018. The following concerns were expressed in comment letters which were received from the public. One of the letters included a petition signed by nine (9) individuals. The majority of the letters opposed the subject proposal or marijuana generally, while one letter opposed the County's marijuana regulations. In summary, staff has attempted to capture most impacts, comments, requests, and concerns identified by the public in written comments received prior to the date of this decision: Concerns regarding the subject proposal's impacts, including: Odor Noise • Light pollution • Access • Screening 2. The County's Right to Farm ordinance in Title 9, specifically Section 9.12.080 supersedes marijuana regulations in Title 18, Section 18.116.330 3. Oregon Revised Statutes (ORS) 475B — Cannabis Regulation prohibits public land use processes 4. DCC 18.116.330 violates "reasonable" local time, place, and manner conditions allowed by ORS 47513.340 5. Concerns regarding impacts from other existing marijuana grows, including: Odor Light pollution Traffic 6. Lowered property values 7. Neighborhood safety 8. Deschutes County Planning Division has no idea where the Alfalfa community is located, or what is happening in the community 9. Allowing marijuana production removes prime farmland from farm use 10. Water table dropping due to marijuana producers nearby 11. Fences and cameras used by other grows resemble prisons 12. Health concerns regarding exposure to marijuana fumes 13. Future expansion and possibility of marijuana processing 14. Density of marijuana grows in Alfalfa (concentration of production sites in one area) 15. Driveway location 16. Industrial zones are more appropriate than farm zones for marijuana production ' Order Ns 2018-002 247-17-000049-A (247 -17 -000831 -AD) Page 2 of 11 The Deschutes County Code (DCC) would only allow the Planning Division (and any other County hearings body) to approve or deny this application based on applicable criteria (Attachment 4). All applicable criteria of the DCC were addressed in the Administrative Determination (Attachment 2). III. APPELLANT'S OBJECTIONS SUMMARY The appellant's attorney states numerous reasons for their appeal, which are fully described in the Notice of Appeal (Attachment 3). The appellant's central arguments are summarized below: A. Transportation. B. Public health, safety, and general welfare. C. Setbacks. D. Odor control. E. Noise control. F. Water source. G. Utility verification. H. Waste disposal. IV. OBJECTIONS & DISCUSSION A. Transportation. OBJECTION: The Notice of Appeal states: The instant application will create trips. No one knows how many. The County's current interpretation that no trip analysis is required has degraded the transportation system in the Alfalfa Community. This interpretation is no longer reasonable in light of increased traffic in the Alfalfa area and violates the County's Comprehensive plan, and so state law. The instant application should be required to comply with the County Comp Plan, or be denied for failure to mitigate impacts to the County's Traffic System. The appellant's attorney discusses requirements of the Control and Regulation of Marijuana Act (ORS 475B.450), Statewide Planning Goal 12 (OAR 660-015-0000(12)), Transportation Planning Rule (OAR 660-12), and the Deschutes County Transportation System Plan Goal 1, Policy 4.6, and Goal 10, and how these should relate to the proposal. The appellant's attorney also indicates they believe considerable traffic and road damage will be generated by this proposal and by all marijuana uses generally, in the surrounding area of Alfalfa. STAFF COMMENT: The Deschutes County Senior Transportation Planner responded to the Notice of Application and indicated a transportation impact analysis was not required for the proposed use. In the recent Tewalt2 decision for marijuana production, the Board found the following: In deliberations, the Board discussed with staff when Traffic Impact Studies are required and when they are not. Staff clarified that Traffic Impact Studies are required when a use will cause 50 or more daily trips and is subject to a Conditional Use Permit and/or Site Plan Review. Only marijuana production in the MUA-10 zone, marijuana processing, and marijuana retail require a Conditional Use Permit or Site Plan Review. The Board finds 2 BOCC Document Ne 2017-718, Planning Division File Ns 247-17-000723-A 247-17-000049-A (247 -17 -000831 -AD) Page 3 of 11 that because marijuana production in the EFU zone is a use permitted outright, and does not require a Conditional Use or Site Plan Review, DCC 18.116.310 is not applicable. The Senior Transportation Planner has prepared a thorough memo for the Board (Attachment 5), which discusses in detail the issues raised by the appellant regarding transportation. B. Public health, safety, and general welfare. DCC 18.04.020. Purpose: A. The intent or purpose of DCC Title 18 is to promote the public health, safety and general welfare and to carry out the Deschutes County Comprehensive Plan, the provisions of ORS 215 and the Statewide Planning Goals adopted pursuant to ORS 197. DCC Title 18 is to establish zoning districts and regulations governing the development and use of land within portions of Deschutes County, Oregon; OBJECTION: The appellant's attorney referred to public forums where impacts and concerns were discussed relating to public health, safety, and general welfare. Due to the concerns listed, such as air quality, noise, security, heavy traffic, and dry wells, and how these impacts relate to public health, safety, and general welfare, the appellant requests denial of the application. STAFF COMMENT: The applicant has requested approval of marijuana production, a use permitted outright in the EFU Zone by DCC 18.16.020(S), subject to 18.166.330. The County Commissioners constitute the legislative branch of Deschutes County government and enact applicable law via ordinances, which then are codified in the Deschutes County Code. Staff notes that the phrase, "public health, safety and general welfare" is invoked where the County Commissioners are exercising their police power authority to regulate land uses. DCC 18.04.020(A) outlines the regulatory purpose of Title 18, which is to promote public health, safety and general welfare, carry out the Comprehensive Plan, the provisions of ORS 215, and the Statewide Planning Goals. Staff is required to consider whether a land use application satisfies the written standards set forth in the DCC, which have been adopted to promote the public health, safety and general welfare of the community. This provision of the DCC does not impose any substantive requirements on land use applications to make a separate showing of promotion of health, safety and welfare. It is entirely possible that the Board may amend the marijuana regulations of DCC 18.116.330 and .340 to reflect any changes the Board deems will better promote public health, safety, and welfare, but approval or denial of this application can only be based on the standards which applied at the time this application was submitted3. 3 ORS 215.427(3)(a): If the application was complete when first submitted or the applicant submits additional information, as described in subsection (2) of this section, within 180 days of the date the application was first submitted and the county has a comprehensive plan and land use regulations acknowledged under ORS 197.251 (Compliance acknowledgment), approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted. 247-17-000049-A (247 -17 -000831 -AD) Page 4 of 11 C. Setbacks. DCC 18.16.330(B)(6). Setbacks 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. OBJECTION: The Notice of Appeal states: The reduction to requirements is only allowed where the location of the facility will improve these impacts. The exception says nothing about the nature of the structure afforded by the location. Under Applicant's reasoning, a sealed titanium structure on the property line, a few feet from the next residence, should be allowed if the structure does a better job of controlling impacts. STAFF COMMENT: The applicant's materials indicate that the arena is 75.9 feet from the eastern property line and 173.3 feet from the dwelling to the east. The barn is 79.9 feet from the eastern property line and 255.1 feet from the dwelling to the east. In order to use the existing structures on site and avoid siting new structures on irrigated pasture, the applicant is requesting an exception to the yard and the off-site dwelling setbacks, pursuant to subsection (c) above. The applicant identified several reasons for the setback exceptions to be approved, which are summarized in the Findings & Decision (Attachment 2). In the Board's recent Baker decision4, the Board denied the setback exception which the applicant had requested. In that the decision, the Board found: The Board understands there may be unique situations that warrant a reduction of the setback requirements. The exception should be an attempt to seek balance between the proposal and the surrounding area whether in public or private ownership. Moreover, some Board members believe granting an exception may be optimal for neighboring private properties in order to mitigate impacts. [... ] Although opinions vary regarding granting an exception to the setback adjacent to private property, the Board collectively and generally agrees that the applicant did not demonstrate the reduced setbacks will afford equal or greater mitigation of the marijuana production facility to the surrounding public and private properties. In the Findings & Decision, staff found the reduced setbacks could be approved because the application materials indicated the locations could provide equal or greater mitigation of the listed 4 BOCC Document Ng 2018-083, Planning Division File Ng 247-17-000962-A 247-17-000049-A (247 -17 -000831 -AD) Page 5 of 11 impacts. Staff notes that the neighbor for which the reduced setbacks are measured from did not submit comments in objection. In regards to the Baker decision, staff is uncertain if the information submitted by the applicant sufficiently demonstrates equal or greater mitigation of the six listed impacts. Staff defers to the Board for a determination. D. Odor Control. DCC 18.16.330(B)(10). Odor. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. OBJECTION: The appellant's attorney challenges the adequacy of the Mechanical Engineer's report, prepared by Rob James, PE of ColeBreit Engineering. The objections outline that compliance with criteria of this section in regards to the structures, climate conditions, growing conditions, and growing marijuana plants. STAFF COMMENT: In the Administrative Decision, staff found the mechanical engineer's report (Attachment 6) met the requirements of this section and included an ongoing condition of approval: Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. This is consistent with the Board's Rubio decisions, where the Board found: The Board acknowledges that the criteria of this section are discretionary in terms of what constitutes unreasonable interference of neighbors' use and enjoyment of their property". The record includes two letters from Oregon -licensed Mechanical Engineer Robert James, PE, dated November 23 and November 29, 2016. The Board finds the applicant met these 5 BOCC Document Ne 2017-294, Planning Division File Ng 247-17-000036-A 247-17-000049-A (247 -17 -000831 -AD) Page 6 of 11 criteria. The Board also clarifies that odor control is an ongoing requirement and that the burden of compliance is on the applicant. The Board further clarifies that in subsequent applications, an engineer's letter should explicitly identify that the engineer signing the letter is a mechanical engineer. This is also consistent with the Board's recent Tewalt decision, where the Board found: The record contains two letters from Mechanical Engineer Jay Castino addressing the mitigation of odor for the property. The initial letter submitted with the application (dated March 20, 2017) and a revised letter (dated September 6, 2017). Although one Board member disagreed, the remaining two Board members found that the applicant could meet the criteria with the ongoing condition of approval: • At all times, the proposed odor control system shall prevent unreasonable interference with neighbors' use and enjoyment of their property, shall be maintained in working order, and shall be in use. The Board may wish to determine consistency with the recent marijuana -related Board decision for Evolution Concepts LLC6, where the Board found: 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 [sic] odor emissions will not unreasonably interfere with neighbors' use and enjoyment of their property. The mechanical engineer's report states the applicant will use multiple odor control systems that will recirculate air through inline carbon filters in a manner that exceeds the CFM requirements described in this code section. The report also discusses that the buildings will be cooled with a chilled water system, heated with propane -fired indoor unit heaters, and that the entire system is designed so the buildings do not create any exhaust and no odors will escape the facility. Staff defers to the Board to determine if the mechanical engineer's report sufficiently demonstrates compliance with the above criteria. E. Noise Control. DCC 18.16.330(B)(11). Noise. 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. 6 BOCC Document Ng 2017-773, Planning Division File Ng 247-17-000803-A 247-17-000049-A (247 -17 -000831 -AD) Page 7 of 11 OBJECTION: In the Notice of Appeal the appellant's attorney challenges the applicant's statements concerning noise impacts and setbacks, as well as stating: Applicant has not proven compliance with noise control requirements with its "moving HV AC to the west side" argument either. Such an assertion is without proof of the conclusion offered. STAFF COMMENT: The applicant submitted a report from Registered Professional Engineer Robert James (Attachment 6). Staff found the engineer's statements satisfied the requirements of this section, with the ongoing condition of approval: Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7.00 a.m. the following day. In the recent Evolution Concepts LLC decision, the Board found: ... 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 [...] 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. The mechanical engineer's report includes site-specific analysis and measurements for the proposed mechanical equipment and calculated the sound pressure levels for the external equipment (water chillers) to be 27.9 dB at the property line. In regards to the Evolution Concepts LLC Board decision, staff is uncertain if the information submitted by the applicant sufficiently demonstrates site-specific compliance with the above criteria. Staff defers to the Board for a determination. F. Water Source. DCC 18.116.330(B)(13). Water. Water. The applicant shall provide: a. A copy of a water right permit, certibcate, 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. OBJECTION: The Notice of Appeal states: Applicant proposes to use 37 acres of surface water from COID, by claiming it will be able to make a temporary transfer of the water rights to the structures. This is not proven, approved, or permanent for purposes of determining a feasible water source for the application use. Applicant goes on to note that the domestic well on the property is planned to be converted to nursery use. This is not a completed transfer, and has not been approved for Permit, Construction, Proving Up, or Perfecting the water right. As such, it is not sufficiently completed to be relied upon in the instant application. 247-17-000049-A (247 -17 -000831 -AD) Page 8 of 11 STAFF COMMENT: The subject property is served with 37 acres of irrigation from COID (Attachment 9). The applicant included the water right certificates for this irrigation right and states the rights can be transferred on a temporary basis to structures not located on a mapped water right during irrigation season (April 1 st to October 31 st). For periods of time outside of the irrigation season, the applicant proposed to have water delivered to the property by Bend Water Hauling LLC and stored on site in an existing cistern. The applicant submitted a letter from Bend Water Hauling (Attachment 7) stating they are willing and able to serve the farm use on this property with up to 15,000 gallons of water per week. In the recent Tewalt decision, the Board clarified expectations regarding the water source that water suppliers are using: The record contains materials demonstrating the property may be served by Bend Water Hauling, LLC. The Board found that the application thereby met subpart b above. However, the record also contains materials questioning if Bend Water Hauling, LLC has the appropriate water rights to serve the proposed marijuana production use. The Board interpreted that the intention of verifying the public or private water provider as required by subpart b above is in part to ensure that applicant has access to a legal source of water that complies with all applicable state statutes and regulations. The Board thereby voted in favor of adding the following condition of approval to ensure ongoing compliance with DCC 18.116.330(B)(13): • As an ongoing condition of approval, the use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. In light of this Board decision, staff accepted Bend Water Hauling LLC as an acceptable water source secondary to irrigation from COID, subject to the same condition of approval imposed in the Tewalt decision. The applicant also stated that they were pursuing a groundwater right from the Oregon Water Resources Department (OWRD). No information such as a copy of a water right permit, certificate, or other water use authorization from the OWRD was submitted with the application regarding this pursued water right, so staff was unable to review or confirm this water source. The applicant stated they were willing to provide this information to the County when and if the water right is granted by OWRD. G. Utility Verification. DCC 18.116.330(B)(1 5). Utility Verification. 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. OBJECTION: The appellant's attorney claims the letter provided by CEC is insufficient because the "operation" is not identified in the letter, and that other will -serve letters are also insufficient. STAFF COMMENT: CEC provided the following in a letter dated October 5, 2017 (Attachment 8): 247-17-000049-A (247 -17 -000831 -AD) Page 9 of 11 Central Electric Cooperative has reviewed the provided load information (1600 amp Three phase 480 volt service) associated with the submitted Cannabis Grow Facility and is willing and able to serve this location in accordance with the rates and policies of Central Electric Cooperative. Staff notes that this level of detail has been accepted by the Board as meeting the above criterion in the recent Tewalt decision, as well as numerous staff -issued Administrative Determinations under the Board's direction in the Rubio decision. In the Rubio decision, the Board found the CEC letters needed to identify the operation and the electrical load, which CEC now provides in all of their will -serve letters for marijuana -related uses. Staff is unsure of what other utility letters the appellant refers to. If it is the water delivery letter, that would be reviewed under 18.16.330(B)(13) and not this section. H. Waste Disposal. DCC 18.116.330(B)(1 7). Secure Waste Disposal. 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). OBJECTION: In the Notice of Appeal and supplemental materials, the appellant's attorney states: No proposal specifics are offered to show what Applicant proposes will be constructed. This is insufficient information to meet the standard of this criterion. STAFF COMMENT: The applicant indicated that waste would be stored in a secured receptacle in limited access area within the production structures. Staff found this criterion would be met and imposed an ongoing condition of approval to ensure compliance: Waste: The marijuana waste receptacle shall be stored within the secured and fenced composting area identified on the site plan, and shall be in the possession of and under the control of the OLCC licensee. V. CONCLUSION & NEXT STEPS This application was submitted on October 10, 2017, but not accepted and deemed complete until November 20, 2017. The 150th day on which the county must take final action on this application is April 19, 2018. As of the date of the public hearing (February 28), there will be 100 days on the timeline. At the conclusion of the hearing, the Board can choose one of the following options: 1. Close the record and begin deliberations. 2. Leave the record open until a date certain for additional written evidence or testimony. 247-17-000049-A (247 -17 -000831 -AD) Page 10 of 11 Attachments: 1. Area Map 2. Administrative Determination (Findings & Decision) 3. Notice of Appeal 4. DCC 18.116.330 5. Memorandum from Senior Transportation Planner Peter Russell re: Transportation Issues 6. Mechanical Engineer's Report 7. Bend Water Hauling LLC's "will -serve" letter 8. CEC's "will -serve" letter 9. Water Right Map 10. Site Plan 247-17-000049-A (247 -17 -000831 -AD) Page 11 of 11 Mailing Date: Friday, January 05, 2018 t Community Development Department Planning Division 804ing Safety Division Environmental $oil% Division _� R.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http:/IllAmw.deschutes.org/cd FINDINGS & DECISION FILE NUMBER: 247 -17 -000831 -AD APPLICANT: PSBS Holdings LLC c/o Mike Schook & Joey Phelps 25890 Alfalfa Market Road Bend, OR 97701 OWNER: Daniel & Mary Stoller 10839 S. Toliver Road Molalla, OR 97038 ATTORNEY: Michael R. Hughes PO Box 7619 Bend, OR 97708-7619 PROPOSAL: The applicant requests approval of an Administrative Determination to establish a marijuana production facility in the EFU Zone with a maximum of 10,000 square feet of mature plant canopy. The applicant requests a setback exception from the eastern property line and from the closest dwelling to the east. STAFF CONTACT: Jacob Ripper, Associate Planner APPLICABLE CRITERIA Deschutes County Code (DCC): Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zones Chapter 18.116, Supplementary Provisions Title 22, Deschutes County Development Procedures Ordinance II. BASIC FINDINGS A. Location: The subject property has an assigned address of 25890 Alfalfa Market Road, Bend, and is identified on County Assessor Tax Map 17-14-22 as tax lot 1200. Quality Services Perfor►raed i�vith Pr-ide B. Lot of Record: The subject property is a legal lot of record pursuant to the Lot of Record Verification file LR -90-182. C. Zoning: The property is zoned Exclusive Farm Use — Alfalfa subzone (EFU-AL), and is designated Agriculture on the Deschutes County Comprehensive Plan. D. Proposal: The applicant requests approval of an Administrative Determination to establish a marijuana production facility in the EFU Zone with a maximum of 10,000 square feet of mature plant canopy. The applicant requests a setback exception from the eastern property line and from the closest dwelling to the east, in order to utilize existing agricultural structures and avoid placing new structures on irrigated pasture. E. Site Description: The subject property is 39.09 net acres in size. The property is flat, fronts on Alfalfa Market Road, and is developed with a dwelling, a horse arena and stables, a barn, and several smaller accessory structures. All structures on the property are located in the southeastern portion of the property, with all of the remaining 37 acres used for irrigated pasture. An irrigation canal is adjacent to the eastern property line. Subject Property 247 -17 -000831 -AD Page 2 of 22 F. Public Agency Comments: The Planning Division mailed a Notice of Application and received comments from the following agencies: Central Oregon Irrigate District: COID FACILITIES: • Subject's property has an adjacent canal along the eastern property line (COC) • It has a 100' right of way • No buildings are permitted within COID's right of way • Please contact COID concerning any crossing of our facility COID WATER RIGHTS: • Subject's property has 37.0 acres of COID water rights • COID requests a site plan • Please contact COID concerning use of water rights COID GUIDELINE STATEMENT • Review the following page COID response to Community Development Notice for Proposed Marijuana Production: Central Oregon Irrigation District (COID) serves this property with 37.0 acres of irrigation water during the irrigation season of April 1st through October 31st at a rate of up to 6 gallons per minute per acre. This water cannot be used for irrigation during the winter months. An additional source (not COID) of water is necessary to irrigate between November 1st and March 31st. If the recreational marijuana production facility is a greenhouse or other structure proposed to be built on top of the COID water right, land - user must allow COID annual access to the structure to document beneficial use of the water right. Structures on top of a water right for any purpose other than growing plants is not allowed. • Applicant should contact COID to determine status of water rights prior to construction of production facility. • Plot Plan is required to assist COID in determining if the proposed structure will be located on the water right or if a water transfer application is needed to transfer water to it. [STAFF COMMENT]: COID also submitted a color map depicting irrigated lands on the subject property (see Attachment A). Central Electric Cooperative: CEC requests the applicant apply for a new electrical service by calling Bob Fowler at 541-312-7778 and provide electrical load and demand requirements for this activity. CEC will determine if capacity is available. Deschutes County Building Division: The Deschutes County Building Safety Divisions code required Access, Egress, Setback, Fire & Life Safety Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 247 -17 -000831 -AD Page 3 of 22 Deschutes County Senior Transportation Planner Peter Russell: I have reviewed the transmittal materials for 247 -17 -000831 -AD fora marijuana production (growing) operation in the Exclusive Farm Use (EFU) zone at 25890 Alfalfa Market Road, aka 17-14-22, Tax Lot 1200. The growing operation involves the conversion of an existing pole building and horse arena to an indoor growing operation. Deschutes County Code (DCC) at 18.116.330(B)(8) only requires proof of legal direct access to the property or access from a private easement for a grow of more than 5, 000 square feet of mature canopy. The proposal is for 10,000 square feet of mature canopy, so the access requirement does apply. The applicant should provide a copy of an approved driveway permit from the Road Department. If the applicant does not have one, then acquiring one should be made a condition of approval. The traffic study requirements of DCC 18.116.310 are not applicable for a marijuana production application, unless the application is also undergoing site plan review and must show compliance with DCC 18.124.080(J). As this land use not being reviewed against the criteria of DCC 18.124, no traffic study can be required. Board Resolution 2013-020 sets an SDC rate of $3,937 per p.m. peak hour trip. The County uses the most recent edition of the Institute of Traffic Engineers (ITE) trip generation manual to assess SDCs. The ITE manual does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet. The applicant proposes approximately 14,358 (2,085 + 12,273) square feet of building for the production and support of cannabis in two buildings. The County's SDC is based on the buildings' total square footage related to cannabis production and support and not the square footage of the mature canopy. The 14,358 square feet will produce 4.59 p.m. peak hour trips (14,358 X 0.32). The resulting SDC is $18,071 (4.59 X $3,937). The SDC is due prior to issuance of certificate of occupancy, if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. The following agencies either had no comment or did not respond to the notice: Alfalfa Fire District, Deputy State Fire Marshall, Deschutes County Environmental Soils, Oregon Liquor Control Commission, and Watermaster — District 11. G. Public Comments: The Planning Division mailed a written notice of this action to property owners within 750 feet of the subject property on October 18, 2017. The following concerns were expressed in three comment letters which staff received from the public. One of the letters included a petition signed by nine (9) individuals. Two of the letters opposed the subject proposal, while one letter opposed the County's marijuana regulations. In summary, staff has attempted to capture most impacts, comments, requests, and concerns identified by the public in written comments received prior to the date of this decision: Concerns regarding the subject proposal's impacts, including: • Odor • Noise • Light pollution 247 -17 -000831 -AD Page 4 of 22 • Access • Screening 2. The County's Right to Farm ordinance in Title 9, specifically Section 9.12.080 supersedes marijuana regulations in Title 18, Section 18.116.330 3. Oregon Revised Statutes (ORS) 475B — Cannabis Regulation prohibits public land use processes 4. DCC 18.116.330 violates "reasonable" local time, place, and manner conditions allowed by ORS 47513.340 5. Concerns regarding impacts from other existing marijuana grows, including: • Odor • Light pollution • Traffic 6. Lowered property values 7. Neighborhood safety 8. Deschutes County Planning Division has no idea where the Alfalfa community is located, or what is happening in the community 9. Allowing marijuana production removes prime farmland from farm use 10. Water table dropping due to marijuana producers nearby 11. Fences and cameras used by other grows resemble prison 12. Health concerns regarding exposure to marijuana fumes The Deschutes County Code (DCC) would only allow the Planning Division (and any other County hearings body) to approve or deny this application based on the criteria, Applicable Criteria, above. All applicable criteria of the DCC are addressed in Section III below. In regards to the other comments received, the applicant has requested approval of marijuana production in the Exclusive Farm Use Zone, which is a use permitted outright in DCC 18.16.020(S), subject to the provisions of DCC 18.116.330. The County Commissioners constitute the legislative branch of Deschutes County government and enact applicable law via ordinances, which then are codified in the Deschutes County Code. Staff only has the authority to enforce the law as it is currently written. Staff cannot revisit the propriety of the Commissioners' decision to adopt ordinances that allow marijuana production facilities in the EFU zone as an outright permitted use. H. Review Period: This application was submitted on October 10, 2017. It was deemed incomplete on November 3, 2017. After the applicant submitted additional information, the application was accepted and deemed complete on November 20, 2017. The 150th day on which the County must take final action on this application is April 19, 2018. The applicant has also complied with the posted notice requirements of Section 22.23.030(B) of Title 22. The applicant has submitted a Land Use Action Sign Affidavit for the application dated October 20, 2017, that indicates that the applicant posted notice of the land use action on October 20, 2017. 247 -17 -000831 -AD Page 5 of 22 III. FINDINGS A. Chapter 18.16, Exclusive Farm Use Zones Section 18.16.020. Use Permitted Outright. The following uses and their accessory uses are permitted outright. S. Marijuana production, subject to the provisions of DCC 18.116.330. FINDING: The proposed marijuana production facility is permitted outright in the EFU zones, subject to the provisions of DCC 18.116.330, which are reviewed below. 2. 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant did not submit building elevations or a description of the height of the structures, however, the structures are existing and this standard can be met through a condition of approval. No modification to the height of either structures has been proposed. The following condition of approval has been added to ensure compliance with this standard. Building Height: No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of. 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The subject property fronts on and obtains access from Alfalfa Market Road. The southern property line is the front lot line. Alfalfa Market Road is a county -maintained rural arterial road and the required front yard setback is 100 feet. The proposal is to locate the production facility within two existing structures that are within 82 feet of each other. The submitted plot plan indicates the structures will be a minimum of 156.9 feet from the southern front property line. The proposal is not for a non-farm dwelling, therefore, the required side and rear yard setbacks are 25 feet. The submitted plot plan indicates an eastern side yard setback minimum of 75.7 feet, and 247 -17 -000831 -AD Page 6 of 22 a western side yard setback minimum of 1196.6 feet, and a northern rear yard setback of over 896 feet. The required yard setbacks of subsections A, B, and C will be met. Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. B. Chapter 18.116, Supplementary Provisions Section 18.116.330, Mariivana Production Processing, and Retailing. A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TOC, TeCR, TuC, Tut, RI, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, Rl, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant has proposed Marijuana Production in the EFU zone. This section applies. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is a legal lot of record and is 39.09 net acres in size. This standard is met. 2. Indoor Production and Processing. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. C. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is within the EFU zone. The applicant has proposed that all production will occur within the two existing structures, complying with these criteria. Staff includes the following condition of approval to ensure compliance with the requirements of this section. No Outdoor Production: Marijuana production is prohibited in any outdoor area. 247 -17 -000831 -AD Page 7 of 22 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. L The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: The applicant has proposed a maximum of 10,000 square feet of mature plant canopy area, as allowed under section (c) for properties equal to or greater than 20 acres in lot area. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall not exceed 10,000 square feet at any time. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is not located in the MUA-10 Zone. This criterion does not apply. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposal includes only one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site. This criterion will be met. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. 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 247 -17 -000831 -AD Page 8 of 22 application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The plot plan indicates the existing structures to be used for marijuana production are more than 100 feet from all property lines except for the eastern property line, and more than 300 feet from all dwellings except for the dwelling to the east at 25920 Alfalfa Market Road (tax lot 17- 14-22-1100). The submitted materials indicate that the arena is 75.9 feet from the eastern property line and 173.3 feet from the dwelling to the east. The barn is 79.9 feet from the eastern property line and 255.1 feet from the dwelling to the east. In order to use the existing structures on site and avoid siting new structures on irrigated pasture, the applicant is requesting an exception to the yard and the offsite dwelling setbacks, pursuant to subsection (c) above. The applicant proposes several reasons for the setback exceptions to be approved, which are summarized below: Visual The applicant proposes to use two existing structures. One is a fully enclosed barn that will retain its current appearance, as no exterior alterations are proposed. The other building is a horse arena that is partially enclosed, and the applicant proposes to fully enclose the structure. The applicant states utilizing the existing structures will avoid the need for new construction that may obstruct views of the Cascade mountain range to the west. In order to meet the setback standards of this section, the applicant would need to locate new structures on the irrigated areas of this property. The applicant wishes to enclose the horse arena using materials that will match the enclosed portion of the same building. A photograph from Google Maps, dated May 2012, (Figure 1) shows the existing horse arena with the barn behind it, as seen from Alfalfa Market Road directly in front of the COID irrigation canal. Staff finds the applicant's proposal will provide equal, if not greater mitigation of visual impacts, when compared with new setback compliant structures, by using the existing agricultural structures on the property. Figure 1 Aly 247 -17 -000831 -AD Page 9 of 22 Odor The applicant proposes to use a carbon filtration system that a mechanical engineer has certified will meet the requirements for odor control (DCC 18.116.330(B)(10)). This system, the applicant states, "ensure[s] that no odor related to cannabis can be detected outside the proposed facilities by installing carbon filtration systems designed to totally clean or'scrub' all the air in the facilities". The proposed cooling equipment is located on the west side of the buildings, away from the property for which the exceptions are requested. The applicant proposes to plant sage, lilac, lavender, and other plants to provide year-round natural odor mitigation. Staff finds that because the odor control is designed in a way to eliminate all odor, using the existing structures would provide equal odor mitigation no matter where on the property they were located. Furthermore, odor control systems are required to be in use at all times marijuana production is occurring and will be a condition of approval required in the findings addressing DCC 18.116.330(B)(10) below. Noise By fully enclosing the arena and using the existing enclosed barn, the applicant may utilize modern HVAC systems like those the applicant proposes. The applicant states that this will eliminate the need for larger, noisier fans typical of greenhouses. The mechanical engineer's report discusses noise mitigation, which is discussed in the findings addressing DCC 18.116.330(B)(11) below. The proposed HVAC equipment is located on the west side of the buildings, away from the property and dwelling for which the exceptions are requested and will be fitted with a "comprehensive sound attenuator package", according to the mechanical engineer's report. Staff finds that the combination of the mechanical engineer's certification that the mechanical equipment will meet the noise mitigation requirements, the location of the equipment on the west side of the building, and the fully enclosed indoor nature of the proposal all contribute to the equal or greater mitigation of noise impacts. Li htin The structures used for marijuana production are proposed to be completely enclosed and insulated, with no production lights visible from outside of the buildings. Staff finds that because the buildings are designed in a way to eliminate all production lighting impacts, using the existing structures, when fully enclosed, would provide equal or greater lighting mitigation no matter where on the property they were located. Privacy The applicant explains that the horse arena is currently used by people and their horses coming to the property in multiple trucks and trailers. The existing driveway is nearest to the eastern property, for which the setback exceptions are requested. The applicant states that enclosing the arena and discontinuing the horse riding and training will reduce the number of people coming to the property. Enclosing the arena will also discontinue horse -related uses that currently impact the neighbors including dust drifting out of the arena, light spilling outside of the arena, and noise generated within the area. Additionally, the applicant points out that security cameras are prohibited by the County and the State from recording any images of the neighbor's property. The applicant states the buildings, in their current locations, will be equipped with security cameras that will not record any neighbor's properties or infringe on their privacy. Staff finds that the neighbor's privacy is not expected to be impacted by converting the use of these existing structures, and finds the location provides equal or greater privacy mitigation, when compared with new setback compliant structures. Access The applicant again compares the use of the open-air horse arena to the use of a fully enclosed marijuana production facility. The applicant expects far fewer vehicles, trailers, and people to be 247 -17 -000831 -AD Page 10 of 22 entering and exiting the property on the driveway leading to Alfalfa Market Road. The applicant states that by using the existing buildings and discontinuing horse riding and training, the traffic using the subject property's driveway will be greatly reduced to only a few people who are authorized to be on the property, and a limited number of supply deliveries. Staff finds that whether these production buildings are located where they exist or were to be located on the other side of the property, access would still be obtained from Alfalfa Market Road, with the same number of vehicles entering and exiting the property. The buildings do not block sight distances for vehicles nor are they located in a required Clear Vision Area (DCC 18.116.020). The use of the existing structures will provide equal or greater mitigation for access. For the above reasons, staff finds the reduction in setback requirements is approved because the applicant has established that the use of the existing barn and enclosed arena will 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: L A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and V. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. C. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: L Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: The applicant states the subject property exceeds these separation distance requirements. There are 15 tax lots wholly or partially within 1,000 feet of the subject property. According to staff review of Deschutes County records, none of these properties appear to be in a use described in this section or are subject to subsection (c). These criteria will be met. 247 -17 -000831 -AD Page 11 of 22 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. C. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and IV. Include a legal description of the private road or easement. FINDING: As discussed above, the applicant proposes a maximum mature plant canopy size of 10,000 square feet, therefore, these criteria apply. The property has frontage on and direct access from Alfalfa Market Road, a constructed County road. The applicable criterion above is met. 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 states the proposed marijuana production facility will utilize two buildings which will be fully enclosed and will not omit any light during any hour of the day or night. The applicant further states that any external lighting will be shielded in compliance with DCC 15.10. Staff finds these criteria will be met and adds the following condition to ensure compliance with the requirements of this section. Lighting: The following lighting standards shall be met: (a) Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day; (b) Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through 247 -17 -000831 -AD Page 12 of 22 the lowest light -emitting part; and (c) The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall. i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. FINDING: The applicant submitted a site-specific report prepared by Oregon -licensed Mechanical Engineer Rob James, PE of ColeBreit Engineering. The report states the applicant will use multiple odor control systems that will recirculate air through inline carbon filters in a manner that exceeds the CFM requirements described above. The report also discusses that the buildings will be cooled with a chilled water system, heated with propane -fired indoor unit heaters, and the entire system is designed so that the buildings do not create any exhaust and no odors will escape the facility. Staff finds these criteria will be met when the applicants install the odor control systems as specified in the mechanical engineer's report, and adds the following condition to ensure ongoing compliance with the requirements of this section. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 247 -17 -000831 -AD Page 13 of 22 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 site-specific report prepared by Oregon -licensed Mechanical Engineer Rob James, PE of ColeBreit Engineering. The report states the applicants will use interior propane -fired heater units that will not be audible from outside the building. Cooling is provided by a chilled water system, with a water chiller located on the west side of each building, away from the closest neighbor to the east. The applicant also explains that the recirculated and carbon -filtered air system does not utilize larger fans typical of greenhouse operations and the water chillers will be enclosed in a fenced area, further mitigating noise impacts. The buildings will have fan -coil units, but the mechanical engineer states that these will be located inside of the buildings and will not contribute to noise heard from the outside. The mechanical engineer further states that the water chillers will be located approximately 215 feet from the nearest property line, they will be shielded from the closest property line by the barn and arena buildings, they will be purchased and installed with a comprehensive sound attenuator package, and the calculated sound pressure level at the property line is 27.9 dB. Staff finds these criteria will be met when the applicants install the mechanical equipment as specified in the mechanical engineer's report, and adds the following condition to ensure ongoing compliance with the noise requirements of this section. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non- rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. 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. 247 -17 -000831 -AD Page 14 of 22 FINDING: The subject property is not in the Landscape Management or the Wildlife Area Combining Zone. No fencing or razor wire is proposed except for two small fenced areas around the water chillers. The fencing is to provide both screening and noise dampening. The property is flat and is mostly comprised of irrigated pasture. It has few, if any, trees or vegetated areas to retain that would to screen the proposed structures from view from the public right of way and adjacent properties. The applicant has agreed to finish the new fencing in a muted earth tone that blends with the natural landscape. Staff finds these standards can be met and adds the following condition to ensure compliance with the requirements of this section. Fencing: Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. 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 is served with 37 acres of irrigation from COID (see Attachment 1). The applicant has included the water right certificates for this irrigation right, and states the rights can be transferred on a temporary basis to structures not located on a mapped water right during irrigation season (April 1St to October 31St). For periods of time outside of the irrigation season, the applicant proposes to have water delivered to the property by Bend Water Hauling LLC and stored on site in an existing cistern. The applicant submitted a letter from Bend Water Hauling stating they are willing and able to serve the farm use on this property with up to 15,000 gallons of water per week. In the recent Tewalt' decision, the Board clarified expectations regarding the water source that water suppliers are using: The record contains materials demonstrating the property may be served by Bend Water Hauling, LLC. The Board found that the application thereby met subpart b above. However, the record also contains materials questioning if Bend Water Hauling, LLC has the appropriate water rights to serve the proposed marijuana production use. The Board interpreted that the intention of verifying the public or private water provider as required by subpart b above is in part to ensure that applicant has access to a legal source of water that complies with all applicable state statutes and regulations. The Board thereby voted in favor of adding the following condition of approval to ensure ongoing compliance with DCC 18.116.330(B)(13): ' BOCC Document Ns 2017-718, Planning Division File Ns 247-17-000723-A 247 -17 -000831 -AD Page 15 of 22 • As an ongoing condition of approval, the use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. In light of this Board decision, staff accepts Bend Water Hauling LLC as an acceptable water source secondary to irrigation from COID, subject to the same condition of approval imposed in the Tewalt decision. The applicant also states that they are pursuing a groundwater right from the Oregon Water Resources Department (OWRD). No information such as a copy of a water right permit, certificate, or other water use authorization from the OWRD was submitted with the application regarding this pursued water right, so staff is unable to review or confirm this water source. The applicant stated they are willing to provide this information to the County when and if the water right is granted by OWRD. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing is proposed. This section does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: The applicant submitted a "will serve" letter from the Central Electric Cooperative (CEC) dated October 5, 2017, including information identifying the use as marijuana production and that the electrical load can be provided for. The letter from CEC states: In response to your Inquiry, please be advised that property located In T. 175., R. 14E., W.M., Section 22, Tax Lot 1200, Deschutes County, Oregon, is within the service area of Central Electric Cooperative, Inc. Central Electric Cooperative has reviewed the provided load information (1600 amp Three phase 480 volt service) associated with the submitted Cannabis Grow Facility and is willing and able to serve this location in accordance with the rates and policies of Central Electric Cooperative This is the only utility the proposal will utilize besides water, which is addressed above. This criterion is met. 16. Security Cameras. if security cameras are used, they shall be directed to record only the subject property and public rights- of-way, except as required to comply with requirements of the OL CC or the OHA. 247 -17 -000831 -AD Page 16 of 22 FINDING: The applicant agrees to comply with this standard. This standard will be met. Staff adds the following condition to ensure compliance with the requirements of this section. Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant states, "All marijuana waste will be stored in a secure receptacle, within a limited access area within the Production Facilities, and will thus always be under the control of the Applicant, whose is [sic] the OLCC licensee. Applicant will compost the waste material as part of their waste reduction plan." Staff finds this criterion can be met and adds the following condition to ensure ongoing compliance with the requirements of this section. Waste: The marijuana waste receptacle shall be stored within the limited access areas within the production buildings, and shall be in the possession of and under the control of the OLCC licensee. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or C. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is not in the MUA-10 zone. This section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(6)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(6)(10-12, 16, 17) by December 8, 2016. FINDING: The site is not currently used as a medical grow site and this section does not apply. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited. i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(0), used in conjunction with a marijuana crop; 247 -17 -000831 -AD Page 17 of 22 iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. C. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. V. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: None of the prohibited uses have been proposed by the applicant. Staff adds the following condition to ensure ongoing compliance with the requirements of this section. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18. 1 16.330(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 -000831 -AD Page 18 of 22 d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. The applicant has agreed to file the annual report each year in a timely manner. Staff adds the following condition to ensure compliance with the requirements of this section. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. IV. CONCLUSION Based on the foregoing Findings, staff finds that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. V. DECISION APPROVAL, subject to the following conditions of approval. VI. ONGOING CONDITIONS OF APPROVAL 1. Use & Location: Marijuana production is conditionally approved inside the two approved structures. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. 2. Building Height: No building or structure, including greenhouses, shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. 3. No Outdoor Production: Marijuana production is prohibited in any outdoor area. 4. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall not exceed 10,000 square feet at any time. 5. Lighting: The following lighting standards shall be met. a. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 247 -17 -000831 -AD Page 19 of 22 6. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 7. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 8. Fencing: Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. 9. Water: The use of water from any source for marijuana production shall comply with all applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010. 10. Security Cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. 11. Waste: The marijuana waste receptacle shall be stored within the limited access areas within the production buildings, and shall be in the possession of and under the control of the OLCC licensee. 12. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. 13. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. G. 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. VII. DURATION OF APPROVAL: The applicant shall complete all conditions of approval and obtain building permits for the proposed use within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. 247 -17 -000831 -AD Page 20 of 22 This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION /ritten: Jacob Ripper, Associate Planner Reviewed by: Peter Gutowsky, Planning Manager Attachments: A. COID Irrigation Map 247 -17 -000831 -AD Page 21 of 22 Attachment A 247 -17 -000831 -AD Page 22 of 22 ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ a a a a a a a a Q a a a Q un rH � rH U `-I ri ri c -I c -I ri t -i c -I c -I r -I i -i a -i ci W 4 ❑ ❑ LL ❑ ❑ ❑ ❑ ❑ LL ❑ ❑ ❑ ❑ .N LL W LL LL LL LL LL LL W LL LL LL LL 01 c--1 00 a- i MO 00 O r,0 Ln 0 0 0 0 0 0 0 0 0 I- 01 r- r- n n r, r n r, n r- 0) = 01 Ol 0) Ol 0) Ol Ol 0) a) Ol a O a = a a = = = = = = -S-10,600000000000 �, C O C .N C C C Z C C C C C +- v (1)^ a� a� w v a� a� ai a) U m 2 m in m m m m m m m m m cz O C 41 v s s s cu U N U U v C ❑ Y C C C m o n3 -0 W M cr-0 CC W ca L cLv W -a � � � >CO s a1 W to O w O O 4- 07 Ln �_ J �- C 3, C C O rl a) C L a@ i-- l0 s ca f6 a s f6 s s Ln a v1 X U -00 Q -00 > O O O M O to Ln O Ln Ln O M M O O L M M M N r� M m M N M I- 00 lD -0 00 00 0) 00 O m m m m m O M 0 Ln (z N-1 a W ON N N N w N w w Ln _Q v s a v O 02 O O s U N L/I O Y_ V G 4+ C G y a1 O N m u O a) � L _ m L O C L E G LL ,E 4 J Q 4- (a O ❑ J V) sUa C W v� 7 fl C Q L V) tLoi O 0 Q r0 41 a) 2 0.6 -� um)a vii ra O O o2S 1 O cei O �p a) Z U O L = s -� C W O Z �. >- C m .0 U vUiy '� m a cm � a1 � �j V) (O a) aJ O O a1 to = r0 O a❑ ❑ 0 0 0� a W w a Community Development Department y Planning Divis m+ 8uildlog Sa" Diviition EnvironM6Ma1Soils 0ivi%Mn P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 57708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd APPEAL APPLICATION FEE: $250 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Tye Cattle Co an Bill Tye Trustee of fhe Witham R Tye Revocable Living Trust Phone: ( 541 ) 406-3646 Mailing Address: 25840 Alfalfa Market Rd. City/State/Zip: Bend, OR 97701 Land Use Application Being Appealed: 247 17 -o00831 -AD Owner Stoller Applicant PSBS Holdings LI C Property Description: Township 17 Range, 14 , Section 22 Tax Lot 1200 Appellant's Signature: Z (see attached Letter of Authorization) EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services Per%carr»ed with Pride NOTICE OF APPEAL See attached Statement. (This page may be photocopied if additional space is needed.) 400 SW Bluff Drive, Suite 240 Bend, OR 97702 (0) 541-585-2224 • (D) 541-585-2229 August 22, 2017 Jacob Ripper, Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE: Letter of Authorization Dear Jacob, I hereby authorize Liz Dickson of Dickson Hatfield, LLC, to act on my behalf regarding all land use matters before Deschutes County to which myself and/or the William R. Tye Revocable Living Trust Is a party. Sincerely, William R. Tye, Trustee William R. Tye Revocable Living Trust 25840 Alfalfa Market Rd. Bend, OR 97701 541-408-3646 BEFORE DESCHUTES COUNTY REQUEST FOR HEARING BEFORE BOARD OF COUNTY COMMISSIONERS NOTICE OF APPEAL AND NARRATIVE APPELLANT: Tye Cattle Co. Contact: Bill 'rye 25840 Alfalfa Market Rd. Bend, OR 97701 541-408-3646 APPELLANT'S Elizabeth Dickson ATTORNEY: Dickson Hatfield, LLC Attorney for Appel lant/P roperty Owner 400 SW Bluff Drive, Suite 240 Bend, OR. 97702 541-585-2229 eadicksoii(ii-,)ciicksoiiliati-i.eld.ck)ni STAFF REVIEWER: Jacob Ripper, Assistant Planner Deschutes County Community Development Dent. 117 NW Lafayette Ave. Bend, OR 97701 REQUEST: Appellant requests a de novo Appeal of Deschutes County Administrative Determination, File No. 247 -17 -000831 -AD, Owner: Stoller; Applicant: PSBS Holdings LLC; Attorney for Applicant: Michael R.1-luglies Z;� SUBJECT PROPERTY: Assessor's Map Designation Township 17S, Range 14E, Section 22, Tax Lot 1200, commonly referenced as 25890 All'alfia Market Road, Bend, Oregon 97701 TYI I (WI LE' CO. - NOTI(T 0)AITI "A I � 01: 247 -17.0008;1 -AD -- Sj (:)I. [..I �RAISWS.' I IOL DIN GS ITC Pmyc 1 of 12 I. INTRODUCTION Applicant PSBS 1loldings LLC (" PSBS'°) and property owner Daniel & Mary Stoller ("Stoller") have requested approval to establish a marijuana production facility in the i_:F'U Tone with a maximum of 10,000 square feet of mature plant canopy and also to convert permitted uses within two existingbuildings on the subject property. The two buildings, together 14,358 square feet, are proposed to be converted from barn and arena to marijuana grow warehouses. This request has been approved administratively by Jacob Ripper, Associate Planner, by b=indings and Decision, on I"ridgy, January 5, 2018. This appeal is timely filed on January 17, 2018. Appellant Bill I've has received notice of this Admninistrative. Determination, listed in the notice as "Willairn R The Rev Liv Trust" [sic] by agent Tye, William R Ttec. Hill b'ye. is legally entitled to appeal this decision. Appellant Bill Tye states that the application should not be approved for these reasons • Existing, structures are not built on the Subject Property in a location that complies with applicable Code for marijuana production, and so should not be approved for conversion to the planned use; • Odor rS not controlled. where required methods at-(-,, t reported or demonstrated. ® Noise is not controlled, where necessary proof is not made; • bights are not shielded, where appropriate specifics are not provided; • Water is derived from an unpermitted source.; and • Water use as proposed does not promote public health, safety, and general welfare. County criterial applicable to the conversion application are also not satisfied by substantial evidence in the whole Record. in addition, the instant application does not meet County and state codes regarding transportation impacts, though the County has thus far interpreted such criteria as inapplicable. We ask that the County reconsider this interpretation in light of the extreme degradation of the transportation system in the Alfalfa Community, where such degradation directly correlates to the increase of not farms in the area. This degradation includes a recent incident in neighboring Dodds Road area, where a bicyclist was killed by an intoxicated driver under influence of'substances determined not to be alcohol, final report pending. Applicant has requested exceptions and allowances for County approval, without providing a persuasive rationale for such special treatment. Applicant is demonstrating it is not willing, to comply with applicable law in its request for approval of a marijuana production facility in Alfalfa. C'ornpliance with applicable law should be narrowly construed for this activity so disruptive to the allowed uses and historical culture that comprise the very lifestyle of the surrounding community. This application is properly denied. TYI:, CATTLR C),-NOT`iC']," Ol' lAP1;A1, OF 247 -1 7 -00083 1 -AD -- S'l'O1.LER/I)Sl3s I IO1,1)1NGS I,1,C Page 2 of 12 We ask the Board of County Commissioners to hear this appeal, and interpret for themselves the true meaning of the Deschutes County Code., particularly as it regulates marijuana production in the communities of Deschutes County. 11. APPLICABLE CRITERIA & STANDARDS OREGON REVISED STATUTES ORS 475B.340— CONTROL AND REGULATION OF MA12IJ LJANA ACT STATEWIDE PLANNING GOAL 12 TRANSPORTATION OREGON A DMINISTRATIVE RULES OAR 660-12 — TRANSPORTATION PLANNING RULE DESCHUTES COUNTY COMPREHENSIVE PLAN DESCHUTES COUNTY TRANSPORTATION SYSTEM PLAN DESCHUTES COUNTY CODE TITLE. 18 — DESCHUTES COUNTY ZONING ORDINANCE TITLE 22 — DESC14UTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE Ill. COMPLIANCE WITH APPLICABLE CRITERIA & STANDARDS OREGON REVISED STA TUTE'S ORS 475B.340 — CONTROL AND REGULATION OF MARIJUANA ACT ORS 475B.340(2) [T]he governing body of a. . county may adopt ordinances that impose reasonable regulations on the operations of businesses.... (3) Regulations adopted under this section must be consistent with. . county comprehensive plans and zoning ordinances and applicable provisions of public health and safety laws. RESPONSE: The Board of County Commissioners (the "Board") approved Ordinance No. 2016- 015 to amend Title 18, and specifically added DCC 18.116.330 to allow the cultivation, processing and sale of marijuana products under specific conditions. In so doing, the Board presumably inadvertently allowed grows to be approved without analysis of traffic impacts. The County's Comprehensive Plan ("Comp Plan"), applying public health and safety laws, requires -affi that traffic impacts be monitored and mitigated where necessary. Failure to assess the ti ic impacts of a new land use is inconsistent with the County's Comp Plan., specifically that chapter addressing its transportation system. This application does not address traffic impacts, and so opens the opportunity for further degradation of the Alfalfa community road system. This condition is exacerbated by the County's allowance of previous applications for higher activity uses in the area over the past year, which uses are now being built and activated. We ask this INR CATTLECO. NO'I)C1-.'01-,'AIIPI,Al,,Ol'2,17-17-()0()831-Al) STOLLE'R /PS 11S I I 01,D) WS LLC Page 3 (A'12 Board to withhold further approval pending evaluation of this application's impacts on the I current road system in the Alfalfa area, as is its right under applicable County Code. STA TE WIDE PLANNING GOAL 12 TRANSPORTATION Each transportation plan shall ... (9) conform with the local and regional comprehensive land use plans. RESPONSE: This state statute supports Appellant's contention that the Board is compelled to evaluate traffic impacts before approving the instant application, where the County Comprehensive Plan requires monitoring of and mitigation of impacts to the system. OREGON ADMINISTRA TI CSE R ULES OAR 660-12 — TRANSPORTATION PLANNING RULE OAR 660-12-005(32) (Transportation System Plans are based on] projections of future travel demand resulting from a continuation of current trends. RESPONSE: This Rule requires local governments to examine trends and evaluate such trends in light of impact on systems, Deschutes County has not examined the trend of marijuana production facilities in the Alfalfa community. Such transportation impacts are readily observable to lay people in the community. This administrative rule requires Deschutes County to make this evaluation, and should do so before approving any further applications which could exacerbate the results of this trend. DL,',VCIIUTES COUNTY COMPREHENSIVE PLAN DESCHUTES CLOUNTY TRANSPORTATION SYSTEM PLAN Coal 1: Achieve an efficient, safe, convenient and economically viable transportation... system. RESPONSE: This application, as documented, does not contain information sufficient to assure the Board that this Goal will be met. 'rhe instant application will increase trips to and from the site. New trips will be generated by many activities, including but not limited to: • water haulers • material deliveries (plants, coir, pipes and hoses, nozzles, sheeting, frames, light fixtures and bulbs, chemicals, tools, packaging supplies and labels) • system maintenance and repair persons I Y F C'AT11_(' CO. T\'(73']('1:01-'A1-'I'I,'Al,()I247-17-000831-Al) Page 4 of 12 • workers to water, fertilize, provide insect and bacterial control, prune, harvest, package and prepare product shipments, • inspections by officials, • product inspection by buyers, o product transport Increased trips on rural roads, such as Alfalfa Market Road, will be caused directly by approval of the proposed use. Applicant, by promising to limit mature plants (those in full bloom) to 10,000 square feet, will require significant suppliers as well as workers to run the operation proposed. The code, as written, allows a limitless amount of cultivation on site, so long as the mature plant canopy does not exceed the stated 10,000 square feet. This creates a loophole in the code, such that trips generated by the many uses noted above, may still travel over the Alfalfa cornmunity road system, and despite the myriad effects residents may suffer, no protection against such effects is offered by the. County as it has interpreted the code in the staff administrative determination. 'I'lhe C`ounty's Comprehensive flan must be adhered to, according to ORS 47513.:340(2), as quoted above. The Comp Plan includes the Transportation Systema Plan ("'ISP"), Goal 1, which requires an efficient, safe, convenient, and economically viable system. Allowing the existing use to convert and increase the need for additional trips, without even Mothering to ask for an estimate of the trips that will be generated, does not serve the efficient, safe, convenient, and economically viable system the Comp Plan, and thus state statute, mandate. Policy 4.6: Deschutes County shall manage the development process to obtain adequate street right-of-way and improvements commensurate with the level and impact of development. New development shall provide traffic impact analysis to assess these impacts and to help determine transportation system needs. RI SPONSE: Deschutes County has presumably inadvertently adopted a code that does not require this evaluation for marijuana production applications in the EFF zone. In doing so, the County is considering such applications in direct contradiction to this policy. Here, no management of the development process to handle impacts is required. As a result Of this omission ill the DCC, the instant application is being considered in violation of Policy 4.6 of tile, County's code. This application is properly denied. `I'he County's TSI' also addresses degradation, separate (morn the analysis requirement above. It reads as follows: Goal 10- Maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system. RESPONSE: Appellant Bill Tye and neighbors have witnesses significant traffic loads on Alfalfa Market Road. These loads are directly caused by the increase in marijuana grows in the immediate area. They have degraded the capacity of the system, to put the problem in transportation engineer terms. This degradation is a direct result of the new applications I YE ✓1�1��1'1+1 C O, - No 1101 0I, AN11"Al C)1= 247 -17 -000931 -Ali S 1OJ ATRIPS13S 1101 DINrS t,1_(` C" 11age 1; oi' i 2 approved and built in Alfalfa, and it violates TSP Goal 10. Again, violation of the TSP is violation of the Comp Plan, which violates ORS 47513,340'2). The instant application will create trips. No one knows how many. The County's current interpretation that no trip analysis is required has degraded the transportation system in the Alfalfa Community. This interpretation is no longer reasonable in light of increased traffic in the Alfalfa area and violates the County's Comprehensive plan, and so state law. The instant application should be required to comply with the County Coimp Ilan, or be denied for failure to mitigate impacts to the County'sTraffic System. It is interesting to note that when Deschutes County adopted Ordinance No. 2016-015, the Findings adopted did not include any reference to these issues or their potential impacts. Perhaps this is because such impacts were not known. After 17 months of implementation of the Ordinance, we may now examine such impacts, and should interpret County Code accordingly. Appellant Bill 1 -ye asks this Board to withhold approval of the, instant application until compliance with state statutes, statewide planning goals, and County goals and code regarding transportation impacts Can be met. D SC HLI' ES COUNTY CODE l)CC TITLE 113- DF,SCDUT'E5 COUNTY ZONING ORDINANCE DCC Chapter 18.04 TITLE, PLjRPOSE, AND DEFINITIONS DCC Section 18.04.020. Purpose A, The intent or purpose of I)CC Title 18 is to promote the public health, safety, and general welfare.... RESPONSE: 'Title 18, the land use/zoning code, is founded in the County's legal right to pass legislation to promote public health, safety, and welfare. '.['his Is well established In state and federal law as well. In this instance, the Hoard has decided to try allowing marijuana grows in Deschutes County, and watch for the effects of such use. Recent public forums held as part: of tile County's evaluation of marijuana production impacts in our communities revealed story after story of families unable to open windows to bring in fresh air, children restricted from playing outside, noise so loud that neighbors could not enjoy outdoor areas of their homes. and more serious impacts such as dry wells, heavy traffic, and threatening persons attracted to communities not accustomed to such persons. All of these concerns are examples of direct impacts on public health, safety, and welfare. lack of clean air, inability to enjoy the outdoors, and the threats to clean water and safe roads are real and concrete challenges to these most basic concerns, and it is the conitnumty's right to enjoy clean wells and safe; roads. N e ask this Board to protect the general community's health, safety, VY V CAVI -11" CO, NO I I(T OFA 11111 A1, 01- 247-17-000931 -A D 1101.1)INW) 11C Papc 6 of 12 and welfare, and deny this application. It does nothing, to enhance these values, and only harms the community the Board serves. DCC "ha ter 18.116 41 1'l'l.,i{i�lE'1'ARY i'R()VIIOPdS DCC Section 18.116.330 Mariivana Production, Processing, and Retailing B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. 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. RE'SI)ONSE: The instant application does not comply with either standards to or 1, above. Application asks that an exception be made, under standard c above, because using the existing buildings will afford benefits of visual, odor, and noise impacts. Applicant misreads the exception standard. The reduction to requirements is only allowed where the location of the facility will improve these impacts. 'The exception says nothing about the nature of the structure afforded by the location. Under Applicant's reasoning, a sealed titanium structure on the property line, a few feet from the next residence, should be allowed if the structure does a better This misconstrues the plain language of the exception. This job of controlling impacts. application does not qualify for the: exception. It does not satisfy the setbacks requirement. 'I'his application is properly denied. 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. 1 lTI CA 1 11]" C:C). Sl'(.)LLFIRTSBS 1101.1)IN(JS H C tate 7 of'] 2 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 related for the required CFM; or ii. Utilize an alternative method or technology to achieve equal or to greater odor mitigation than. provided by (1) above. e. The system shall be maintained in working order and shall be in use. RESPONSE: The code requirements are not met by this application, particularly this provision: 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. The instant application, in its Burden of Proof, page 9, claims that "'File applicant believes that allowing the setback exemption so that the existing infrastructure can be modified and used for production will reduce and eliminate any odor impacts. Again, by using the existing infrastructure for indoor production, the level of odor related to the cannabis production will be ,loll -existent. This is -in sharp contrast to non- sealed greenhouse production, which will cillanate some odor related to production, regardless of the system employed to reduce the odor." Applicant is correct that non -scaled greenhouse production has proven to be ineffective in controlling odor as required by law. However, applicant's assertion that the existing structure will better control the odor, even though it is much closer to the property line and nearby residence than allowed, is offered without the proof required by the DCC. Applicant goes on to state that because it will be using a carbon filtration system, per its F.Ixhlbit D, it will achieve necessary compliance. Again, this is offered without site specific, and building specific analysis. Applicant also claims that by planting "odiferous plants" it call counter such effect. Again, this is offered without necessary proof. This standard essentially relies on a mechanical engineer to have the education, the experience, and the integrity to assess a system in light of the facility it is to serve, and to be able to stand in the shoes of the Board to assure the public that the odor known to be produced by such grows will be controlled. A proper report must address the 1*611owing site-specific conditions: • In these 2 structures, including necessary specific alterations • With these climate conditions Under these grow conditions o Growing these plants (applicant claims they will grow 10,000 sfof mature canopy plants). Page 8 01,12 In conclusion, the offered letter is not a report, does not demonstrate what's required, and should not be accepted for the truth of what's asserted therein. The Odor control requirements of the DCC are not satisfied. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 Db(a) measured at any property line between 10:00 p.m, and 7:00 a.m. the following day. 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. RFSPONSI;: Applicant's noise control assertions, offered on Page 9 of•the Burden of Proof and supplemented, again make a circular argurnent: Let 'us use the existing buildings, even though they are too close to the property line and adjoining residence. and the structural integrity of the buildings will satisfy all requirements, Applicant must separately prove that the noise requirements will be met. Applicant has not so proven. Applicant's argument regarding the existing building location is a question of setback exception all, � 2.n: C, not noise or odor compliance. Applicant has not proven compliance with noise control rcquireinents with its "moving HVAC to the west side" argument either. Such an assertion is without proof'ofthe conclusion offered. The instant application should not be approved. 13. Water. The applicant shall provide: b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider.... RESPONSE: Applicant proposes to use 37 acres of surface water from COID, by clairning it will be able to make a temporary transfer of the water rights to the structures. This isnot proven, approved, or permanent for purposes of determining a feasible water source for the application use. Applicant goes oil to note that the domestic well on the property is planned to be converted to nursery use. This is not a completed transfer, and has not been approved for Permit, Construction, Proving Up, or Perfecting the water right. As such, it is not sufficiently completed to be relied upon in the instant application. Applicant is not offering an application with water supply sufficiently assured to warrant approval. The instant application is properly denied. TYI CAi I T CO, - 1dt)"HCF- OF ANTIAI OF 247-I7-000S3I-iiD - S 1,oJ.J_.t:R/P 1N 1301DIN(IS 11C Page 9 of 12 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. RESPONSE: As noted above, COJUS will serve letter is not sufficient to assure verification as required by the DCC- Other offered "will serve" letters do not satisfy the requirement that the Applicant provide responses particular to "the operation." Here, significant structural modification will be required, but are not called out. The power provider letter provided is insufficient and should be disclaimed as not substantial evidence necessary to meet this requirement. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). RESPONSE: No proposal specifics are offered to show what Applicant proposes will be constructed. This is insufficient information to meet the standard of this criterion. DCC TITLE 22 - DESCH UTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE DCC Chapter 22.32 APPEALS DCC Section 22.32.010. Who ,May Aj)j)_eaI C. The following may file an appeal: 2. In the case of an appeal of an administrative decision without prior notice, a person entitled to notice, a person adversely affected or aggrieved by the administrative decision, or any other person who has filed comments on the application with the Planning Division; and 1). A person to whom notice is mailed is deemed notified even if notice is not received. RESPONSE: Appellant William ("Bill")'I"ye received notice and is entitled to appeal this decision. DCC Section 22.32.020. Notice 2f_AppcaI A. A statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in dispute. RESPONSE: This statement is made to comply with this requirement, so is satisfied. I � -WITH I ](A 1 1; is 11 C Y), ( N(.)11(1�,()I-'Allill:Ai,()I,'2.,17-17-000831-A],) STOMIWFSW� )N( Page 10 of 12 B. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons why the Board should review the lower Hearings Body's decision. RESPONSE: Interpretation of the County's Marijuana Code is best made by the Board, since - the Board adopted it and so is clearly best able to determine its own intent. C. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board stating the reasons why the Board should provide de novo review as provided in DCC 22.32.030. RESPONSE: Full Record responses to Board questions and concerns are best supplied by opening the Record, and we request same herc, DCC Section 22.32.024. Transcript Requirement A. Except as otherwise provided in DCC 22.32.024, appellants shall provide a complete transcript of any bearing appealed from, from recorded magnetic tapes provided by the Planning Division. Rl?SPONSE: This decision was made without hearing. No tapes are available. B. Appellants shall submit to the Planning Division the transcript no later than the close of the day rive days prior to the date set for a de novo appeal hearing or, in on -the - record appeals, the date set for receipt of written arguments. finless excused under DCC 22.32.024, an appellant's failure to provide a transcript shall cause the Board to decline to consider the appellant's appeal further and shall, upon notice mailed to the parties, cause the lower Hearings Body's decision to become final. RI SPONSE: This decision was made without a hearing. No tapes are available, so no transcripts are available. C. An appellant shall be excused from providing a complete transcript if appellant was prevented from complying by: (1) the inability of the Planning Division to supply appellant with a magnetic tape or tapes of the prior proceeding; or (2) defects on the magnetic tape or tapes of the prior proceeding that make it not reasonably possible for applicant to supply a transcript. Appellants shall comply to the maximum extent reasonably and practicably possible. RESPONSE: Appellant is properly excused. See above. IV. CON (,'Lt-JSI0N 1 Y1°; CAJ I I J" 0). N{)11( I3 01 APPEAL 01F 247-1 7-00081 1-A1) - S 1'() 1, 1 FR/PS WS I I () H) I N(; S H S' 11age, 11 012 Appellant asks that the Board hear this appeal, and hears it de novo. Appellant further asks that this Board deny the instant application for its failure to comply with applicable law, as detailed herein. Submitted this 17t11 day of January, 2018, by: r i:li abeth A. Dickson Attorney for Appellant EAD/mis Cc: Client TYE CATTLE CO. - NOTICE OF APPEAL OF 247 -17 -000831 -AD - STOLLER/PSBS HOLDINGS LLC Page 12 of 12 Chapter 18.116. SUPPLEMENTARY PROVISIONS 18.116.330. Marijuana Production, Processing, and Retailing A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2, Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, TuI, RI, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, TuI, RC, RI, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal Chapter 18.116 (2/2017) parcel or lot. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; Chapter 18.116 (2/2017) iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light- emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15. 10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non-rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. Chapter 18.116 (2/2017) b. Fencing shall be 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. 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. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). 18. Residency. In the NWA -10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; Chapter 18.116 (2/2017) ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(0), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri-tourism and other commercial events and activities in conjunction with a marijuana crop. b. In the MUA-10 Zone, the following uses are prohibited: i. Commercial activities in conjunction with farm use when carried on in conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. C. Marijuana Retailing. Marijuana retailing, including recreational and medical marijuana sales, shall be subject to the following standards and criteria: 1. Hours. Hours of operation shall be no earlier than 9:00 a.m. and no later than 7:00 p.m. on the same day. 2. Odor. The building, or portion thereof, used for marijuana retailing shall be designed or equipped to prevent detection of marijuana plant odor off premise by a person of normal sensitivity. 3. Window Service. The use shall not have a walk-up or drive-fluu window service. 4. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA registrant. 5. Minors. No person under the age of 21 shall be permitted to be present in the building, or portion thereof, occupied by the marijuana retailer, except as allowed by state law. 6. Co-Location of Related Activities and Uses. Marijuana and tobacco products shall not be smoked, ingested, or otherwise consumed in the building space occupied by the marijuana retailer. In addition, marijuana retailing shall not be co-located on the same lot or parcel or within the same building with any marijuana social club or marijuana smoking club. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1,000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot Chapter 18.116 (2/2017) appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed family child care which occurs at or in residential structures; iv. A youth activity center; v. National monuments and state parks; and vi. Any other marijuana retail facility licensed by the OLCC or marijuana dispensary registered with the OHA. b. For purposes of DCC 18.116.330(B)(7), distance shall be measured from the lot line of the affected property to the closest point of the building space occupied by the marijuana retailer. For purposes of DCC 18.116.330(B)(7)(a)( vi), distance shall be measured from the closest point of the building space occupied by one marijuana retailer to the closest point of the building space occupied by the other marijuana retailer. c. A change in use to another property to a use identified in DCC 18.116.330(B)(7), after a marijuana retailer has been licensed by or registered with the State of Oregon shall not result in the marijuana retailer being in violation of DCC 18.116.330(B)(7). D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). (Ord. 2016-015 § 10, 2016) 18.116.340. Marijuana Production Registered by the Oregon Health Authority (ORA) Chapter 18.116 (2/2017) {' y Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (543) 388-6575 Fax: (541) 385-1764 http://tivoAv.deschLites.org/cd MEMORANDUM To: Jacob Ripper, Associate Planner From: Peter Russell, Senior Transportation Planner Date: February 28, 2018 Re: Response to transportation issues raised in appeal of marijuana production site off of Alfalfa Market Road (File 247-18-000049-A which appeals 17 -831 -AD) The appellant in its January 17, 2018, appeal of a marijuana production (grow) operation of 10,000 square feet at 25890 Alfalfa Market Road raised several transportation issues. The topics ranged from alleged inconsistencies with the Deschutes County Transportation System Plan (TSP) to trip generation rates for marijuana grow operations to the current operation of Alfalfa Market Road. Staff finds all these arguments are without merit. The identified issues are discussed below generally in the order presented by the appellant. 1. Traffic analysis requirements by Deschutes County or state On Page 2, the appellant claims the subject application "...does not meet County and state codes regarding transportation impacts..." and claims "extreme degradation of the transportation system in the Alfalfa Community, where such degradation directly correlates to the increase of pot farms in the area." Board Ordinance 2016-019 established the County's reasonable regulations for marijuana production, processing, and retailing operations at DCC 18.116.330. Deschutes County Code (DCC) at 18.116.330(B)(8) requires a marijuana production site to only prove it has legal access to a constructed public, County, or State road or has access from a private road or easement with written permission to use that private road or easement. Further, DCC 18.116.330(B)(8) only applies to marijuana production facilities of more than 5,000 square feet of mature canopy. The applicant's proposal is for a mature canopy of 10,000 square feet so the requirements of DCC 18.116.330(B)(8) are applicable. The traffic study requirements of DCC 18.116.310 are not applicable for this marijuana production as the application did not trigger site plan review and thus does not need to show compliance with DCC 18.124.080(J), which cross-references the County's traffic study requirements of DCC 18.116.310. The property is in the Exclusive Farm Use (EFU) zone and marijuana production is permitted outright. The Board affirmed in its approval of an appeal of a marijuana production (grow) facility that no traffic analysis is needed for a production site on EFU land. Staff had approved a grow operation Quality Services Perji-rmest with Pride (247-17-000216-LR/217-AD), which opponents then appealed, and the Board called up the decision (247-17-000723-A). The Board's Nov. 30, 2017, approval of the staff decision specifically referenced DCC 18.116.310. To wit on Page 6 the Board's approval states: "The Board finds that because marijuana production in the Exclusive Farm Use zone is a use permitted outright, and does not require a Conditional Use Permit or Site Plan Review, DCC 18.116.310 is not applicable." Staff points out the County does not require traffic analysis from any other agricultural operation (alfalfa, vineyards, hops, specialty crops, or other plants grown indoors such as vegetables, flowers, spices, etc.) and thus is treating marijuana production consistent with other crops. EFU zoned properties are expected to produce agricultural -related trips from outright permitted uses. When introducing another agricultural use (marijuana production) into a zone dedicated for agricultural production, no traffic analysis is required. Finally, staff notes there is no state requirement for traffic analysis in the review of a land use permitted outright or conditionally in an existing zone. The state only requires traffic analysis under Oregon Administrative Rule (OAR) 660-012, aka the Transportation Planning Rule (TPR), for plan amendments and zone changes. Even that mandate is tempered by the criteria of 660- 012-0060 and adverse effects. The Oregon Department of Transportation (ODOT) does have traffic requirements related to their approach road permitting process under OAR 734-051, but Alfalfa Market Road is a County road and not a state highway so those are inapplicable. The application was reviewed consistent with the traffic study section of the County's development code and complies with those requirements. 2. Consistency with TSP Goal 1 On Page 4, the appellant claims the proposed use is inconsistent with TSP Goal 1, which states "...to achieve an efficient, safe, convenient and economically viable transportation system... system."' The appellant claims the approval will also cause increased traffic along Alfalfa Market Road. The appellant errs regarding consistency with TSP Goal 1 for reasons stated below. Goal 1, Policy 1 concerns the protection of the transportation system via various techniques, including land use reviews and collection of SDCs. Policy 1.1(b) and Policy 1.1(c) call for review of large development projects and setting of conditions of approval to protect the transportation system.z s These policies work in concert with DCC 18.116.310(C) for the County to determine the base level of generated trips that would require traffic analysis and possibly mitigation. The trip threshold is the basis for what it significant and less than 50 new weekday trips is deemed insignificant. 1 Goal 1 in full states "Achieve an efficient, safe, convenient and economically viable transportation and communication system. This system includes roads, rail lines, public transit, air, pipeline, pedestrian and bicycle facilities. The Deschutes County transportation system shall be designed to serve the existing and projected needs of the unincorporated communities and rural areas within the County. The system shall provide connections between different modes of transportation to reduce reliance on any one mode." 2 Policy 1.1(b) "Review of future large development and transportation projects that significantly affect the County's transportation system." 3 Policy 1.1(c) "Requirements of conditions of approval on developments and transportation projects that have a significant effect on the County's transportation system." 2 The County does not require traffic studies for any agricultural crop. The appellant on Pages 4-5 lists a variety of trips (deliveries, system maintenance and repairs, workers, product transport, etc.) which would occur on any agricultural operation. These are not unique to marijuana production. Policy 1.1(d) refers to the collection of SDCs to protect the system .4 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 Board approved this policy in early 2017. The applicant proposes approximately 14,358 (2,085 + 12,273) square feet of building for the production and support of cannabis in two buildings. The County's SDC is based on the buildings' total square footage related to cannabis production and support and not the square footage of the mature canopy. The 14,358 square feet will produce 4.59 p.m. peak hour trips.5 The resulting SDC is $18,071.6 The application is consistent with and complies with TSP Goal 1 and its supporting review criteria of DCC 18.116.310. 3. Consistency with TSP Goal 4 On Pages 3-4 the appellant claims the existing transportation network is insufficient and congested with the proposed use exacerbating Alfalfa Market Road. More specifically, the appellant claims TSP Goal 4 is not met as it requires developments to provide transportation improvements commensurate with the development's impacts.' Staff notes when the TSP modeled the County's road system for 2030 volumes, Alfalfa Market Road was not found to be over capacity or nearing capacity. The Ione exception was the intersection of Alfalfa Market -Neff roads/Powell Butte Highway. The County, however, constructed a rural roundabout there, which opened July 29, 2016, thus mitigating that intersection. The improved intersection now meets County standards. The County's performance standard for a roadway segment is Level of Service (LOS) D, which equates to up to 9,600 average daily traffic (ADT). Appellant claims Alfalfa Market Road is experiencing extreme congestion and residents are at significant hazard. Appellant provides no factual data to support this claim. Staff notes the most recent count of average daily traffic (ADT) for Alfalfa Market Road is 2,948 (ADT) in 2015 or roughly 31 percent capacity.$ Staff often drives this road for site visits and has not witnessed any congestion. The appellant has not provided any factual information from a licensed engineer that demonstrates Alfalfa Market Road, a Rural Arterial, is severely congested. Land uses do add 4 Policy 1.1(d) "Collection of transportation System Development Charges (SDCs) for approved land uses as prescribed under BOCC Resolution 2008-059." 5 14.358 X 0.32 6 4.59 X $3,937 7 Goal 4 "Establish a transportation system supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism." 8 2,948/9,600 X 100 traffic to the system, however, that increase is allowable unless the development will cause the facility to exceed the applicable mobility standard. An addition of roughly 5 (five) p.m. peak hour trips will not cause the intersection of the private easement/Alfalfa Market Road to exceed LOS D for an intersection or a roadway segment. The appellant claims Goal 4 has not been met due to lack of traffic analysis related to marijuana. Appellant provides no factual data from a transportation professional that roadway segments serving marijuana production sites or driveways accessing marijuana sites have any crash history indicative of a systematic problem. Appellant misunderstands the intent of broad policy goals vs. site-specific operational analysis. One could argue marijuana production as a newly legalized crop is consistent with the goal of a diversified economic base. Finally, appellant makes much of the alleged adverse traffic effects upon the Alfalfa community. Alfalfa is a designated Rural Service Center (RSC), a type of unincorporated community, but it is critical to recognize this RSC lies more than 3,300 feet to the east of the subject property. The reason that direction is significant is under the traffic theory of retail gravity and traffic modeling, the vast majority of traffic to the site can be expected to come from the largest population center. That would describe Bend, which is west of the site. In other words, the overwhelming majority of employees and delivery vehicles will not even reach Alfalfa as they will be going to and from Bend, a city of more than 90,000 rather than the settlement of Alfalfa, which has less than 500 people in the outlying area while the core of the RSC on Alfalfa Market Road has but a handful of houses and one convenience store. The application complies with and is consistent with TSP Goal 4. 4. Consistency with TSP Policy 4.6 On Page 5 the appellant claims the application is inconsistent with Policy 4.6 as the County requires a development to "require improvements will match level and impact of development".9 The County bases development mitigations on traffic analysis, which in turn is based on p.m. peak hour trips. Based on the calculations for SDCs, the proposed use would generate 4.59 p.m. peak hour trips. Given the 2,948 ADT on Alfalfa Market Road in 2015, the road would not meet the warrants for any improvements such as left turn lanes or right turn lanes into the property. There simply is not enough traffic on Alfalfa Market Road to require separating turning vehicles from through traffic. In other words, the traffic effects of this land use are minimal. Appellant does not provide any factual data from a transportation professional demonstrating otherwise. The SDCs will mitigate the development's impact. The application is consistent with and complies with TSP Policy 4.6. 5. Consistency with TSP Goal 10 Appellant on Pages 5-6 claims the lack of traffic analysis is inconsistent with Goal 10 to "maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system." Again, appellant misunderstands that degradation does not mean an absolute 9 Policy 4.6: "Deschutes County shall manage the development process to obtain adequate street right-of-way improvements commensurate with the level and impact of development. New development shall provide traffic impact analysis to assess these impacts and to help determine transportation system needs. The guidelines for traffic impact analysis shall be located within Deschutes County Code ("DCC") Chapter 17.48, Deschutes County Road Design and Specification Standards." 4 prohibition of any new trips onto the system. Land uses are allowed to generate new trips until they cause the affected roadway segment or intersection to not meet the applicable performance standard, which for a County facility is LOS D. See DCC 18.116.310(H)(1) and (1)(1). The application is consistent with and complies with TSP Goal 10. 6. Miscellaneous transportation issues Throughout the January 17, 2018, memo the appellant ascribes increased traffic to marijuana operations. Yet, these are just assertions, the appellant has not provided any factual data from a professional traffic engineer or other transportation professional. The increased traffic on Alfalfa Market Road could be related to additional residential development in Deschutes and Crook counties, commuting traffic from Prineville and western Crook County as the route of Johnson Ranch Road to Alfalfa Market Road is a popular route to/from Bend (Johnson Ranch Road is a north -south collector about 1,300 feet east of the grow site and 1,278 feet west of Alfalfa Rural Service Center). Other sources of traffic on Alfalfa Market Road are visitors and workers to the various equine training facilities in the area or traffic to/from the Brasada Ranch, which is a destination resort in western Crook County accessed via Johnson Ranch Road. Finally, Alfalfa Market Road is the direct access to recreational areas on Bureau of Land Management (BLM) property as well as Prineville Reservoir. In other words, there are numerous other factors affecting traffic loads on Alfalfa Market Road. In the most recent traffic counts, the road in 2012 had 2,581 ADT and 2,948 ADT in 2015, an increase of 367 ADT. Yet, the County did not legalize marijuana operations until 2016. Thus, traffic increases predated the legalization of marijuana growing, processing, or retail operations. Lastly, the appellant on several pages references the lack of any traffic analysis being performed when Deschutes County adopted its marijuana regulations via Ord. 2016-015, which amended Title 18. Appellant claims this violates Oregon Revised Statute (ORS) 475B.340. Staff rejects that argument for two reasons. First, Board Ordinance 2016-019 established the County's reasonable regulations. That ordinance was not appealed. The time to raise the argument of whether the Board's ordinance was inconsistent with ORS 47513.340 has passed. Appellant is making an unpermitted collateral attack on the County's adopted ordinance. Second, the permitted uses added to DCC 18.116.330 are defined by the state as agricultural uses. The County is not required to predict or analyze the trip generation aspect unique to any one particular crop. Again, the appellant has not entered any factual evidence into the record by a transportation engineer or transportation professional regarding the traffic characteristics specific to marijuana production, processing, and retailing and how they differ from other crops. Conclusion Staff finds no credible transportation arguments in the appellant's submitted nor is there any factual evidence demonstrating this application would adversely affect Alfalfa Market Road. September 27, 2017 RE: Odor and Noise Nuisance Letter 25890 Alfalfa Market road Bend, Oregon 97701 Deschutes County To whom it may concern, Please see the following information regarding noise and odor mitigation for the agricultural structures located at 25890 Alfalfa Market Road, Bend, Oregon 97701. Qualifications, 1 am a licensed engineer in Oregon #65108P,. Facility Description: This facility will be comprised of two buildings used for indoor- grow of cannabis. The larger building is approximately 12,27.3 SF and the smaller building is approximately 7,085 SF. HVAC system o Each building will be cooled using a chilled water system, with an outdoor chiller located on the west side of each building (away from the nearest property line). There will be indoor fan -coil units inside each building, but these will not contribute to outside noise. o Each building will be heated with propane -fired unit heaters. These will be installed inside the building and will not contribute to outside noise. c, The air in each indoor grow space will be treated with inline carbon filters. o The Odor Control System will not interfere with the neighbor's use and enjoyment of their property as the facility will be designed with no exhaust, not allowing odors to leave the facility during any normal operation. OdorControlMethodol y. The Deschutes County code CCC 18.116.330(B)(10) reads: Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c, Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: L 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. The system shall be maintained in working order and shall be in use. The larger building will contain one veg room and eight grow rooms. The smaller building will also be used for indoor grow. Each space will recirculate air through inline carbon filters as follows: 1, The veg room (in the larger building) will have a volume of 37,912 CF, which will require a carbon -filtered air flow of 12,638 CFM, This room will have fourteen Can -Fan 12" Nil (925 CFM @ 0.5") with an attached Can -Filter 150, 12" flange. The total carbon -filtered air flow will be 12,950 CFM, thus meeting the cage requirement. 2. The larger building will contain eight grow rooms, the largest of which will have a volume of 8,464 CF, requiring, a carbon -filtered air flow of 2,822 CFM per room. Each of these rooms will have four Can -Fan 12" NO (92.5 CFM @ 0,5") with an attached Can - Filter 150, 12" .flange. The total carbon -filtered air flow will be 3,700 CFM, thus meeting the code requirement, 3. The smaller building will have a volume of 16,680 CF, requiring a carbon -filtered air flow of 5,560 CFM. This space will have seven Can -Fan 12" HO (925 CFM @ 0.5") with an attached Can -Filter 150, 12" flange, The total carbon -filtered air flow will be 6,475 CFM, thus meeting the code requirement. 4. No air is exhausted from the building. Noise Control Methodalo C The Deschutes County code DCC 18.116.330(B)(11)(a) reads: Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 d8(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. Each building will have an outdoor chiller as described below: • The larger building will have 2 chillers, estimated at 60 tons each. • The smaller building will have one chiller, estimated at 2.0 tans. Regarding noise control, (DCC18.110.330(B)(11)(a) the fallowing factors assist in mitigating the sustained noise from the mechanical equipment used for HVAC, odor control, fans and similar functions to not exceed 30 dB(A) treasured at any property line between 10.00 p.m. and 7:00 a.m. the fallowing day: 1. The chillers will be located approximately 215 feet from the nearest neighboring property line. 2. They will be installed on the west side of the buildings, which will put the buildings between the chillers and the nearest property line. I The chillers will be purchased with the comprehensive sound attenuator package. 4. The calculated sound pressure level at the property line is 27.9 dB. Sincerely, Rab James, P,E. t,J 6`3t0AVG 3� EXPIRES 6/16 1 j 11/1612017 16:26 15413890721 BEND WATER HAULING PAGE 01101 w 2166 Nelson Road Bend, OR 97701-9790 Office (541) 382-0759 11/16/2017 FSBS Holdings, LLC 25590 Alfalfa. N4kt Rd Bend, Or. 97701 RE: Will Serve Letter PSBS Holdings, LLC have requested that Bend. Water Hauling, LLC deliver potable water to the address mentioried above. We have Set up an account. to deliver to tb.i.s location 15,000 gallons a. week_ for agricultural and fanning use. If you have any questions or concerns please contact us at tl office. Sinccr°cly, K.irnberlee Nunez Di.spatc,her/Member yup COOPERATIVE, www.cec.coop • P.O. Box 846, Redmond, OR 97756 • Office: 541,548.2144 • Fax: 541.548.0366 October 5, 2017 PSBS Holdings, LLC C/O Michael Schook 25890 Alfalfa Market Rd Bend, OR 97701 RE: Will Serve Letter for 25890 Alfalfa Market Rd Bend, OR. In response to your inquiry, please be advised that property located in T.17S., R.14E., W.M., Section 22, Tax Lot 1200, Deschutes County, Oregon, is within the service area of Central Electric Cooperative, Inc. Central Electric Cooperative has reviewed the provided load information (1600 amp Three phase 480 volt service) associated with the submitted Cannabis Grow Facility and is willing and able to serve this location in accordance with the rates and policies of Central Electric Cooperative Sincerely, Robert E Fowler Engineering Service Rep P15 iJF: N I— L1-U�� Enlarged Plan - -- J � � «��m CROW S 1 T E ravuer� n. nrmne ++, secnoH :¢ uuor tpo Yi — 7N8/2Qv t � ilbra�mw v.� z��snnwr ne r:uts.neson 25890 ALFALFA MARKET ROAD } " BARN orecvomm maua�nm c� BEND, OR 97701 P—WW Fa MME GCAi00K A � 1 t 4,.739 `F i` F' BARN RESIDENGE Enlarged Plan - -- J � � «��m CROW S 1 T E ravuer� n. nrmne ++, secnoH :¢ uuor tpo J — 7N8/2Qv ilbra�mw v.� z��snnwr ne r:uts.neson 25890 ALFALFA MARKET ROAD orecvomm maua�nm c� BEND, OR 97701 P—WW Fa MME GCAi00K $ F ... .. __._.___.._ TPXLOT i 17N22WE1�� ?2 TP%l0T YCp TOWM84p 77, dNJOE M, 8E0710N _ Site Plan G RDW ,, j � p/id/2OtY Fiu•+iota�u.�rr ROAD ,rte ro rntr:e d ;i+atm Dofor_ iwd/euv ---' ..ALFALFA 898W) Ntndn MUAN ild #2dDv.V 25890 R 9770ET BENDr ..__... �_._.. ....., __- �11trMIi10 1TYfg.Ni9 VNIF:YJ'!FA -' �7a ------ TAXLOT 0 1714220001200 N t�I Site Plan GROW SITE TOWNSHIP R, RANGE N, SECTION 22, TAXLOT 120 9/18/20T7 ReNebas N dobNO:10/6/2017 25890 ALFALFA MARKET ROAD FlIBOe � � Prepared Fa: MIKE SCHOOK Aenwvm uMAPMavm R,tia.x�ar cow BEND, OR 97701 ph—soaaaa-6781-e7a1 ------ TAXLOT 0 1714220001200 N t�I Site Plan GROW SITE TOWNSHIP R, RANGE N, SECTION 22, TAXLOT 120 9/18/20T7 ReNebas N dobNO:10/6/2017 25890 ALFALFA MARKET ROAD FlIBOe � � Prepared Fa: MIKE SCHOOK Aenwvm uMAPMavm R,tia.x�ar cow BEND, OR 97701 ph—soaaaa-6781-e7a1 YJV TAXLOT 1714220001200 \ site Pian GROW S ITE TOWNSHIP P, RNHGE 4, SECTION 2Z, TMLOT 200 D6te: 6/181201/ HeWelOtlx NNO �' /0i6i2on 25690 ALFALFA MARKET ROAD SCHOOK FlI008r8R 8dad: 26800 AHWI+ « R6R4tM.9 Prepared Fd: MIKE uuv m Y BEND, OR 97701 Pa 303883-W81-6781 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 26, 2018 DATE: February 22, 2018 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: Determination of Whether to Hear the Applicant's Appeal of a Hearings Officer's Decision. RECOMMENDATION & ACTION REQUESTED: The applicant is requesting the BOCC to re -weigh the facts of this case and reach a different conclusion from the Hearings Officer. The issues in the case include some matters of local code for which the BOCC likely would be granted deference at LUBA on plausible interpretations. Other issues are legal in nature and may not receive BOCC deference at LU BA. Staff recommends the BOCC only hear this matter if the BOCC wants to revisit the Hearings Officer's analysis and conclusions. ATTENDANCE: Will Groves, Legal SUMMARY: Before the Board of County Commissioners (BOCC) is an appeal filed by Pamalynn and H. Richard Steinfeld. The appeal is submitted in response to a January 29, 2018 Deschutes County Hearings Officer's decision that the applicant has not met the burden of demonstrating that the proposed modification of prior approvals and non-farm partition and dwelling complies with applicable criteria. On February 7, 2018 the applicants appealed the decision to the BOCC. The notice of appeal describes several assignment of error and argues the BOCC should hear this appeal limited de novo, only on issues described on Page 3 of the Notice of Appeal. it .fh A^ P. , DATE: February 12, 2018 Community Development Department Planning Division Building Sate Division Environmental Soils Division P,O. Box 6005 117 NW Lafayette ;venue Bend. Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://ww�v,deschutes.org/cd MEMORANDUM TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Determination of whether to hear the Applicant's appeal of a Hearings Officer's decision. File Nos. 247 -17 -000863 -MC, 864 -MP, 865 -CU (247-18-000123A) Before the Board of County Commissioners (BOCC) is an appeal filed by Pamalynn and H. Richard Steinfeld. The appeal is submitted in response to a January 29, 2018 Deschutes County Hearings Officer's decision that the applicant has not met the burden of demonstrating that the proposed modification of prior approvals and non-farm partition and dwelling complies with applicable criteria. BACKGROUND The subject property is part of the Snow Creek Ranch subdivision. The applicant seeks to divide the subdivision lot again for a nonfarm dwelling. The 1991 approval (TP -91-760) included the following condition of approval: 5. No further division of this land would be allowed since this appears to be the minimum size in this area for farm use. Also, any further division would necessarily split up productive farm land and make it difficult to site residences on lands that did not encompass productive agricultural lands. This condition was modified in 1997 (MC -97-2) to read: 5. Further division of the Snow Creek Ranch Subdivision lots shall only be allowed pursuant to the provisions of Section 18.16.055(B) pertaining to the creation of one new parcel for a nonfarm dwelling, and then only if the recording of a deed restriction against any additional dwellings is made a condition of final plat approval for any nonfarm partition approved for the subdivision lot under Section 18.16.055(B) Such deed restriction shall state that no dwelling shall be allowed on the remainder farm parcel. The applicant partitioned a non-farm parcel and constructed a non-farm dwelling (CU -00-74 and MP -00-18) under this modified condition. The required deed restriction was never recorded. Quality Services Perft-)nned z:,lith Pride The applicant has now requested to amend Condition 5 in MC -97-2, to allow another non-farm parcel and dwelling, as follows: 5. Further division of the Snow Creek Ranch Subdivision lots shall only be allowed pursuant to the provisions of Deschutes County Code and state law. The proposal also includes a new partition of the 69.37 -acre parcel zoned EFUTRB to create a 64.73 -acre farm parcel that will be no longer be eligible for a nonfarm dwelling, and a 4.64 -acre nonfarm parcel with a nonfarm dwelling. A conditional use permit for a nonfarm dwelling is also part of the proposal. II. HEARINGS OFFICER'S DECISION The Hearings Officer denied the proposal (Attachment 1): 1. Section 22 36 040. Modification of Approval. Change of circumstances makes change desirable.' This criterion sets a high bar for the applicants. Perhaps the opponent' S2 concerns do not rise to a significant adverse impact, but it is hard to conclude that increased traffic, more dwellings and other identified concerns benefit them. ....none of those other owners have expressed support or argued that the change is desirable in this rather unique farm subdivision. I find that this provision requires something more than being financially desirable for the applicant. It must be desirable considering the purpose of the applicable zoning and other regulations. The prior modification was desirable in that it furthered the objectives of the original approval and, apparently, agricultural values by providing a work -around to get something like the originally envisioned farm dwellings. In contrast, as discussed previously, the proposed modification is inconsistent with the objectives of the original and modified approvals and encourages exactly the kind of rural residential development that those approvals explicitly sought to avoid. ...not substitute for an appeal or constitute a substantially new proposal. I find, however, that this the application constitutes a substantially new proposal. The applicants propose to modify a condition that applies throughout the subdivision. Further, as discussed above, the provision sought to be modified goes to the heart of the subdivision approval and subsequent modification. The applicants propose to remove something that at least some of the other lot owners assert they relied on in purchasing property. The applicants concede that at least two other owners could take advantage of this restriction, so it could have broader impacts on the subdivision. If the Code changes again, perhaps even more properties could develop. 1 Relevant code sections in bold are followed by quotes from the Hearings Officer's decision. 2 Significant opposition was provided by other owners in the Snow Creek Ranch subdivision, who would also be subject to the proposed modification, and who did not support additional development in the subdivision. -2- ...not have significant additional impacts on surrounding properties. [The modification] ... opens the door to a fundamental change in the nature of the subdivision and removes the protections that formed the central basis for approving the lots in the first place. It may be that some other type of application constituting a new proposal could be approved that would meet the applicants' objective, but a modification of conditions is not the proper course in these circumstances. The applicants have not met their burden on this issue. 2. Section 17.22.020. Requirements for Approval. A proposed partition is not in compliance with the zoning ordinance if it will conflict with the terms of a previously issued approval for land use on the property... In short, absent a modification, which I have denied, the application for a partition conflicts with the requirement that the parcel be subject to a deed restriction permitting only one partitioning. 3. Section 17.36.260. Fire Hazards. Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. I am not comfortable with a condition leaving it to the applicant to apply to ODOT outside of the record. This criterion should have been addressed more fully and, therefore, has not been met based on this record. III. APPEAL On February 7, 2018 the applicants appealed the decision to the BOCC (Attachment 2). The notice of appeal describes several assignment of error and argues the BOCC should hear this appeal limited de novo, only on issues described on Page 3 of the Notice of Appeal. The 150th day for the County to take final action on this application is currently April 15, 2018. (DCC Section 22.20.040) IV. HEARING AN APPEAL If the BOCC decides to hear the appeal, the review shall be on the record unless the BOCC decides to hear the appeal de novo. The BOCC may hear this matter de novo if it finds the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review. The BOCC may also choose as de novo review when, in its sole judgment, a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action (DCC 22.32.027(B)(2)(c) and (d))• The BOCC may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal (DCC 22.32.027(B)(4)). -3- If the BOCC decides that the Hearings Officer's decision shall be the final decision of the county, then the BOCC shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the BOCC's decision to decline review. In determining whether to hear an appeal, the BOCC may consider only: 1. The record developed before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of Staff (See: DCC 22.32.035(B) and (D)). V. STAFF RECOMMENDATION Staff believes that the Hearings Officer has produced a well -reasoned and factually supported decision. At its core, this application is a replat, changing both the number of lots and limitations on development in the subdivision. Staff concurs with the Hearings Officer that any approval of a replat of an already built subdivision should weigh heavily on other property owners' consent where the changes being proposed are issues relied on by those other property owners who bought or built in the neighborhood. The applicant is requesting the BOCC to re -weigh the facts of this case and reach a different conclusion from the Hearings Officer. The issues in the case include some matters of local code for which the BOCC likely would be granted deference at LUBA on plausible interpretations. Other issues are legal in nature and may not receive BOCC deference at LUBA. Staff recommends the BOCC only hear this matter if the BOCC wants to revisit the Hearings Officer's analysis and conclusions. Given that the BOCC may choose to hear this matter, decline to hear this matter, or choose to hear this matter with specific limitations, staff has not drafted implementing orders. An implementing order will be drafted based on BOCC direction at the work session. Attachments: 1. Hearing Officer's decision 2. Notice of Intent to Appeal 3. Snow Creek Partition Locator Figure -4- HEARINGS OFFICER DECISION FILE NUMBER: 247 -17 -000863 -MC, 864 -MP, 865 -CU APPLICANT/OWNER: Pamalynn and H. Richard Steinfeld APPLICANT'S ATTORNEY: Laurie E. Craghead PROPOSAL: Modification of MC -97-2 to allow division of the property, a two - parcel Minor Partition, and a Conditional Use Permit for a non- farm dwelling. LOCATION: The subject property has an assigned address of 18289 Snow Creek Lane, Bend, and is identified on County Assessor Tax Map 16-11-04, as tax lot 804 and Map 16-11-09, as tax lot 101. STAFF: Anthony Raguine and Will Groves, Senior Planners. HEARINGS OFFICER: Dan R. Olsen DECISION SUMMARY: The applications are DENIED. This decision adopts and incorporates the staff report as modified. In some instances, I have identified separately my comments for clarity. APPLICABLE CRITERIA Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Chapter 18.84, Landscape Management Combining Zone Title 17 Deschutes County Code: Chapter 17.22, Approval of Tentative Plans for Partitions Chapter 17.36, Design Standards Chapter 17.44, Park Development Chapter 17.48, Design and Construction Specifications Title 22 Deschutes County Development Procedures Ordinance Chapter 22.36, Limitations on Approvals Oregon Revised Statutes (OAR) Chapter 92, Subdivisions and Partitions II. BASIC FINDINGS A. LOCATION: The subject property is at 18289 Snow Creek Lane, Bend, OR 97703. The property is further identified on Deschutes County Assessor's map #16-11-04 as tax lot 804 and 16- 11-09 as tax lot 101. The property is split by a section line and has been given two tax lot numbers but is only one legal lot of record. Staff notes that the proposed modification would change a decision (MC -97-2) to which all properties in the subdivision are subject. B. LOT OF RECORD: The subject property was created by the approval on July 12, 2000 of a land division, in File No. MP-00-18/CU-00-74, FPA015 and the January 26, 2001 recording of Partition Plat 2001-06. C. ZONING: The property is zoned Exclusive Farm Use-Tumalo/Redmond/Bend subzone ("EFUTRB"). The southwest corner of the subject property is also located within the Landscape Management Combining Zone ("LM"). The proposed dwelling, however, is located outside of the LM corridor. Therefore, the LM criteria does not apply to the applicants' proposal. The subject property is designated as Agriculture on the Deschutes County Comprehensive Plan. D. PROPOSAL: The first proposal is to amend Condition 5 in MC -97-2 to read: 5. Further division of the Snow Creek Ranch Subdivision lots shall only be allowed pursuant to the provisions of Deschutes County Code and state law. At the hearing the applicant provided the option of this modification only applying to the subject property. The second proposal is to partition a 69.37 -acre parcel zoned EFUTRB to create a 64.73 -acre farm Parcel 1 that will be no longer eligible for a nonfarm dwelling, and a 4.64 -acre nonfarm Parcel 2 with a nonfarm dwelling. A conditional use permit for a nonfarm dwelling on Parcel 2 is part of the proposal. E. SITE DESCRIPTION: The subject property has 69.37 acres with 47.7 acres of water rights. The water is used in the southern portion of the property and used as part of the hay growing operation on Tax Lot 16-11-040 803. The parcel is roughly pie shaped, less the homesite taken out by the 2000 land division approval, MP -00-18. The lot has frontage on Snow Creek Lane to the north and east, and frontage along US Highway 20 ("Hwy 20") to the south, although the property does not have direct access to Hwy 20. The property is currently vacant and vegetated with scattered juniper trees, brush and grasses and rock outcroppings. Based on the aerial photograph and the ground level photos taken by the applicants, the proposed nonfarm Parcel 2 has not been cleared for pasture or irrigated. See Exhibit B, aerial photograph dated 2016 and Exhibit C, photos taken by the applicants on September 23, 2017. The southern portion of the property is currently cleared for farm purposes in conjunction with tax lot 16-11-040 803. Parcel 2 will be immediately north of the area of the property being used for growing hay and immediately south of the existing nonfarm parcel, tax lot 16-11-04 811. No structure is proposed to be built at this time. Snow Creek Lane is a paved, two-lane, Deschutes County, rural local road with a 60 - foot right-of-way, crossing the full length of the properties' north side and runs parallel with the east property boundary. The proposed nonfarm parcel would form a small 2 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision square approximately 1,200 feet south of the most northern point of Snow Creek Lane across the top of the subject property. Access to the new parcel would be from Snow Creek Lane along the eastern boundary as close to the access point for TL 811 as the road access standards will allow. The farmed area of the parent parcel will still have access from the southern end of Snow Creek Lane where it currently has access. E. SURROUNDING LAND USES: The subject property is between Bend and Sisters in the Plainview area with frontage on the north side of Hwy 20. The northwest corner of the study area is zoned Multiple Use Agriculture ("MUX). The remainder of the study area north of Plainview Road is zoned Exclusive Farm Use ("EFU") and in the Sisters Cloverdale ("EFUSC") subzone. A few lots south of Plainview Road, along the western edge of the study area, are also zoned EFUSC. Development in the area continued over the last 16 years in much the same way as described in the MP -00-18 decision, which was a "patchwork of rural residential development and small to medium acreage zoned for exclusive farm uses with big blocks of public land at the margin." Although the study area includes land zone F1 and F2, forest harvesting activities do not appear to be occurring on those parcels. F. SOILS: As the soils report by Cascade Earth Sciences ("CES"), Exhibit K, shows, according to the Natural Resources Conservation Service (NRCS) maps of the area, there are five soil units mapped on the subject property: 1. 34C, Desch utes-Stukel complex. Exhibit K describes this soil complex further. The DCC 18.04.030 definition of "high-value farmland" does not list this soil as a high value farmland. This soil is mapped on about 5% of the subject lot. 2. 141 C, Stukel-Deschutes-Rock outcrop. Exhibit K describes this soil complex further. The DCC 18.04.030 definition of "high-value farmland" does not list this soil as a high value farmland. This soil is mapped on about 45% of the subject lot. 3. 152A Tumalo sandy loam. Exhibit K describes this soil complex further. The DCC 18.04.030 definition of "high-value farmland" does list this soil as a high value farmland. This soil is mapped on about 40% of the subject lot. 4. 98A Plainview sandy loam. Exhibit K describes this soil complex further. The DCC 18.04.030 definition of "high-value farmland" does list this soil as a high value farmland. This soil is found in the center and south portions (approximately 20%) of the property. 5. 38B, Deschutes sandy loam. Exhibit K describes this soil complex further. The DCC 18.04.030 definition of "high-value farmland" does not list this soil as a high value farmland. This soil is mapped on about 10% of the subject lot. The proposed nonfarm Parcel 2 would be composed entirely of soil type 141 C. The proposed homesite would be located entirely on soil type 141 C. This is the same soil for which the nonfarm land division was approved in MP -00-18. The proposed new nonfarm Parcel 2 will be located immediately south of the lot approved in 2000. Page 4 of the CES report says that the soil in the area of the proposed Parcel 2 has a water holding capacity of less than 2 inches, correlating to a soil Class VII designation. Additionally, the report says that the soil has no forest production potential. 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several public agencies and received the following comments: County Transportation Planner: I have reviewed the transmittal materials for 247-17- 000863-MC/864-MP/865-CU to modify MC -97-2 to allow division of the property, a two - acre minor partition, and a non-farm dwelling in the Exclusive Farm Use (EFU) and Landscape Management (LM) zones at 18289 Snow Creek Lane, aka 16-11-04 Tax Lot 804 and 16-11-09, Tax Lot 101. The land use would result in two developable sites which are now vacant. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook indicates a single-family residence (Land Use 210) generates an average of approximately 10 daily weekday trips. Deschutes County Code (DCC) at 18.116.310(C)(3)(a) states no traffic analysis is required for any use that will generate less than 50 new weekday trips. The proposed land use will not meet the minimum threshold for additional traffic analysis. The applicant will need to obtain a driveway permit from the Road Department as a condition of approval. Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937 per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore, the applicable SDC is $3,189 ($3,937 X 0.81) for each developable property. The SDC amount is informational only as partitions do not generate traffic. However, as each property develops 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. Deschutes County Building Division: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Deschutes County Road Department: I have reviewed the application materials for the above -referenced file numbers, proposing a minor partition of Tax Lots 1611090000101 and 1611040000804, a non-farm dwelling, and a modification of MC - 97 -2 to allow division of the subject property. Tax Lots 101 and 804 are contiguous and collectively form one legal lot of record. The subject property has frontage to Snow Creek Lane along the property's north and east boundaries. Snow Creek Lane is a rural local road established as a County road by Order No. 98-068 and has been improved to the minimum local road standard provided in DCC 17.48A within the existing 60 ft. right of way. Deschutes County Road Department requests that approval of these proposed land uses be subject to the following conditions: 4 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 1. Applicant shall obtain driveway access permits for all proposed accesses to Snow Creek Lane pursuant to DCC 12.28.050,17.22.020(A)(4), and 17.48.210. Access to Hwy 20 will be prohibited pursuant to DCC 17.48.21 0(6) 2. All easements of record or existing rights-of-way shall be noted on the final partition plat. 3. The surveyor or engineer submitting the plat shall submit information showing the location of the existing roads in relationship to the roads rights-of-way, on behalf of the applicant to the County Road Department. This information can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated rights-of-way. In no case shall a road improvement be located outside of a dedicated road right-of-way. If research reveals that inadequate right-of-way exists or that the existing roadway is outside of the legally established or dedicated right-of-way, additional right-of- way will be dedicated as directed by the Deschutes County Road Department to meet current County Standards. Hearings Officer: The above comment states that access to Highway 20 will be prohibited per DCC 17.48.210(6). Staff did not comment on this in its report. One of the issues discussed later is whether the property may access Highway 20 for emergency purposes. It appears from the Staff Report that the County does permit emergency access if ODOT grants an access permit. This makes sense. Accordingly, if the application is approved, I recommend that the above recommended condition be modified to permit such access. The following agencies did not respond to the notice: Cloverdale Fire Department, Deputy State Fire Marshal, Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes County Surveyor, ODOT, and Oregon Department of Agriculture. H. HEARING: The public hearing was held on December 19, 2017. At the outset I provided the statutorily required notices. I indicated that I had reviewed the file but had no ex parte contacts, had no conflicts of interest and had not conducted a site visit. I asked for but received no procedural or other objections to my participation or to proceeding with the hearing. After testimony, Sam Neary, representing Kevin and Carol Neary, requested that the record remain open. I set the following deadlines (all actual receipt by County prior to close of business): December 29, 2017 New evidence or comment January 5, 2018 Response to new evidence January 12, 2018 Applicant rebuttal On December 27, Counsel for the Nearys submitted a memo entitled "Closing Arguments in Opposition To Proposed Modification, Partition and Conditional Use Applications". Counsel for the applicants submitted final argument on January 12, 2018. REVIEW PERIOD: Staff indicates that the present applications were submitted on October 18, 2017. An incomplete letter was mailed November 14, 2017. These applications were deemed complete by the County on November 16, 2017. Staff states that the 150th day for the County to take final action on this application is currently April 5 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 15, 2018. Since the applicant did not request that the record remain open, the clock was not tolled during that period. Note that I have not researched and have not been asked to consider whether modification of a condition of approval is a "permit" as defined by statute for the 150 - day rule. J. LAND USE HISTORY: TP -91-760 - Approval of a tentative plat for an 8 -lot subdivision in the EFU-20 zone. The purpose of the subdivision is to create units of land suitable for farm use. Conditions of approval included: 5. No further division of this land would be allowed since this appears to be the minimum size in this area for farm use. Also, any further division would necessarily split up productive farm land and make it difficult to site residences on lands that did not encompass productive agricultural lands. MC -93-15 - Approval for a Modification of Conditions to amend the requirement for irrigation water to be provided prior to issuance of building permits to lots within TP -91- 760. RP -95-3 - Approval of a Replat to adjust slightly the location of the right of way for the road that serves all seven lots within the Snow Creek Ranch subdivision. In addition, the applicant adjusted the lot line between lots 6 and 7, which slightly adjusts the acreages for these two lots. MC -97-2 - Modification of Condition nos. 1 and 5 for TP -91-760 (RP -95-3), the Snow Creek Ranch subdivision. Condition 5 was revised to read: 5. Further division of the Snow Creek Ranch Subdivision lots shall only be allowed pursuant to the provisions of Section 18.16.055(B) pertaining to the creation of one new parcel for a nonfarm dwelling, and then only if the recording of a deed restriction against any additional dwellings is made a condition of final plat approval for any nonfarm partition approved for the subdivision lot under Section 18.16.055(6) Such deed restriction shall state that no dwelling shall be allowed on the remainder farm parcel. CU -00-74 and MP -00-18 — The Steinfeld's received approval to partition a 73.9 -acre parcel zoned EFU-TRB to create a 69.4 -acre farm Parcel 1 and a 4.52 -acre `isolated unproductive' nonfarm Parcel 2 for a nonfarm dwelling. The nonfarm parcel was intended to be used as a homesite for the property owner and farm operator. A conditional use permit for a nonfarm dwelling on Parcel 2 was part of the proposal. The decision in TP -91-760 says that the area was previously used only for dryland grazing and that the purpose of the subdivision was to create farm parcels. Since that approval, water rights were acquired for the parcels and the subject parcel was included in the 2013 water rights certificate. With the acquisition of water rights for the subdivision, Parcels 2-8 began growing crops. Those activities defined the appropriate areas for farm activities which now show in Exhibit B to the staff report. 6 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision III. FINDINGS AND CONCLUSIONS: DCC 22.20.015 Code Enforcement and Land Use A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not: 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions and/or property line adjustments; 3. Issue a building permit. The Nearys assert that the application must be denied because the property is in violation of the condition of approval imposed pursuant to MC -97-2. The applicants concede that there is no recorded "deed restriction against any additional dwellings ... [stating]... that no dwelling shall be allowed on the remainder farm parcel." The applicants make two arguments as to why this provision is not determinative. First, they contend that it was the original owner/subdivider (Reed) who had the obligation to include this in the CC&R's or otherwise ensure that the restriction was in place. They contend that two other original lots obtained approvals without recording a deed restriction. The condition has been ignored and not enforced and that is further evidence that a modification of the condition is warranted. The Nearys contend that the revised condition puts the responsibility of recording the deed restriction on an owner that obtains approval for a nonfarm dwelling parcel. The CCR's reflect the 1991 prohibition on further land divisions. The CCR's were not amended to recognize the MC -97-2 easing of that restriction. This creates what could be a problematic disconnect whereby the CCR's are more restrictive than the modified condition, but to my knowledge that does not constitute a code violation. MC -97-2 was approved to authorize creation of non-farm parcels to permit approval of non- farm dwellings instead of the originally contemplated farm dwellings because the standards for farm dwellings had gotten significantly more onerous. The condition as modified was designed to protect the farm use/farm deferral status of the remainder parcel and permit the originally contemplated seven dwellings but no more. As such, it is only needed if a non-farm parcel is created. The condition is not particularly ambiguous. While the CCR's probably should have been amended to reflect this modification, it seems clear that it is the act of creating the non- farm/farm parcel that triggers the need for the deed restriction. The applicants purchased the property in 1995 so presumably were parties to the 1997 modification. They pursued exactly the course offered in the modification. The condition as modified requires the party obtaining a nonfarm parcel approval to record the deed restriction on the parent (farm) parcel. It should be noted that the County bears some responsibility for this situation because it failed to enforce the condition when it approved CU -00-74 and MP -00-18. The applicants assert that the County similarly did not obtain or require deed restrictions in the other nonfarm parcel approvals. They argue that this is an impermissible collateral attack on the decision approving CU -00-74 and MP -00-18 and those decisions should have appealed if anyone objected. It is not clear why the County has not addressed the deed restriction requirement. The decisions 7 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision did not purport to modify or remove that requirement, so it is not clear if it has the practical effect of negating the prior condition. Second, the applicants note that they could cure the violation by recording the restriction. But they have neither recorded nor offered to record the restriction. I find that the condition as modified has not been waived or deleted by the County's failure to address it in prior approvals. The property is in violation of the condition of approval imposed under MC -97-2. DCC 22.20.15 D permits issuance of a permit or approval if "it results in the property coming into full compliance". In my experience the more common use of similar provisions is to obtain whatever approval was not obtained, a variance to legalize a defect in a development or similar approval. In other words, bring the property into conformance with the standard at issue. The applicants easily could conform by recording the restriction. Rather than do so, they seek to remove the standard (i.e. deed restriction) itself. Although it may be a somewhat expansive reading of DCC 22.20.015D, I conclude that the application may be considered on the merits. Approval would, in fact, cure the violation. This is a curative provision designed to encourage conformance rather than to penalize violators. Nothing in the modification of condition provisions requires that the party seeking a modification first come into compliance. In this case, the applicants could simply record the restriction and then reapply for a modification to negate the restriction it if I reject this application. Opponents have not demonstrated that they would be prejudiced by me not requiring the applicants to follow that course. Accordingly, the applications are properly at issue. 2. TITLE 22 DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE A. Chapter 22.36, Limitations on Approvals Section 22 36 040. Modification of Approval. A. An applicant may apply to modify an approval at any time after a period of six months has elapsed from the time a land use action approval has become final. FINDING: The condition proposed to be modified is part of MC -97-2, the final approval for which was 20 years ago, far exceeding six -months. This criterion is met. B. Unless otherwise specified in a particular zoning ordinance provision, the grounds for filing a modification shall be that a change of circumstances since the issuance of the approval makes it desirable to make changes to the proposal, as approved. A modification shall not be filed as a substitute for an appeal or to apply for a substantially new proposal or one that would have significant additional impacts on surrounding properties. The applicant states: Condition 5 MC -97-2 prohibited more than one nonfarm dwelling because the condition required a deed restriction that prohibited more than one partition of each lot created by the subdivision plat. Since the original 1991 subdivision approval 8 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision and the 1997 modification, state law changed to allow additional nonfarm dwelling partitions so long as they meet the new state and local criteria. As discussed below, this application qualifies for an additional nonfarm dwelling partition under the statutory change in ORS 215.263(5) to the July 1, 2001, lot creation date that was subsequently adopted by the county in DCC 18.16.055. Along with the change in the statute and county code, as Exhibit G shows, considerably more dwellings have been approved and constructed in the study area. Thus, the area is not the same as it was when the 1997 condition was improved, constituting another change of circumstances. Yet, farming continues to be viable in the area. Because farming may continue in the area and, as discussed below, the proposed nonfarm dwelling partition will not cause a significant impact on farming in the area, this modification will not have an additional impact on surrounding properties. Additionally, only seven lots were included in the original subdivision approval. The original approval prohibited any additional divisions of the lots in the subdivision. The 1997 modification removed the prohibition to allow one partition per lot in the subdivision if the partition could qualify under DCC 18.16.055. This proposal would allow more than one nonfarm dwelling partitions only for those three lots that obtained nonfarm dwelling partitions prior to the statutory change. Those lots are 161104-803, 804 and 805. This is another indication that the proposed condition modification will not have a significant impact on surrounding properties. The modification is also not a substantially new proposal, not only because only three lots would be affected by it, but because the Snow Creek Ranch subdivision plat has already been recorded and the lots sold. Thus, neither a new subdivision nor a replat approval is possible. Therefore, this application cannot be a substitute for applying for a substantially new proposal. Prior to the change in state statute and county code that set a new lot creation date that would allow the nonfarm dwelling partition, the applicant had no reason to file an appeal. Thus, this request for a modification is not a substitute for the subdivision developer not having appealed the prior decisions within the time periods provided 20 years ago. The criterion has several components that must be met. Change in circumstances. The opponents argue that the purpose of the original subdivision approval, as conditioned, remains in -tact, i.e. to maintain farm parcels. Subsequent changes in state law and the code that make it easier to develop are inconsistent with the purpose and terms of that approval and do not constitute a change in circumstances under the Code. The decision approving the modification in MC -97-2 found that statutory and code changes after the original approval constituted a change in circumstances. The distinction is that the change in circumstances made it difficult if not impossible to implement the original approval. The modification was necessary to implement the original approval. In this case, the statutory and Code provisions relied on by applicant, and the applications, are inconsistent with the original approval. 9 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision I think the applicants' position prevails. DCC 22.36.040 B does not exclude statutory and code changes from the changes in circumstances that may be considered. It is unlikely that the intent is to effectively prohibit property owners who have received an approval from seeking to take advantage of subsequent loosening of development restrictions. The applicants also have demonstrated that there has been rather extensive development since the 1995 approval, with approximately 20 new dwellings constructed in the area. Ex. F to application. The applicants have met their burden on this issue. 2. Change of circumstances makes change desirable. Staff and the Nearys ask, "desirable to whom"? Approval clearly would be desirable to the applicants who would reap a likely significant financial benefit. Other owners who might financially benefit from being able to develop however future laws allow, however, have not expressed support. The comments received all oppose approval due to alleged impacts on farming, the farm character of the area, traffic and other issues. It makes little sense to limit desirability to the applicant since, presumably, no applicant would file an application unless the sought for outcome was desirable. DCC 22.36.040 B requires a finding that the proposal will not have "significant additional impacts" on nearby properties. This separate criterion is somewhat overlapping and perhaps somewhat superfluous if the applicant must meet the greater burden of showing that the modification is desirable to those properties. Perhaps the change is desirable in that it permits at least some of the subdivision lot owners to take advantage of a general loosening of land use regulations which, presumably the legislature and Board found to be desirable in the abstract. But none of those other owners have expressed support or argued that the change is desirable in this rather unique farm subdivision. This criterion sets a high bar for the applicants. Perhaps the opponent's concerns do not rise to a significant adverse impact, but it is hard to conclude that increased traffic, more dwellings and other identified concerns benefit them. I find that this provision requires something more than being financially desirable for the applicant. It must be desirable considering the purpose of the applicable zoning and other regulations. Examples might include a proposal that modified a prior approval to reduce a newly discovered environmental impact or that furthers the objective of improving wildlife habitat. Another might be a showing that permitting this change somehow improves the agricultural potential of the parent lot or the area. The prior modification was desirable in that it furthered the objectives of the original approval and, apparently, agricultural values by providing a work- around to get something like the originally envisioned farm dwellings. In contrast, as discussed previously, the proposed modification is inconsistent with the objectives of the original and modified approvals and encourages exactly the kind of rural residential development that those approvals explicitly sought to avoid. The applicants have not met their burden on this issue. 10 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 3. Not substitute for an appeal or constitute a substantially new proposal. I concur that as a practical matter this is not a substitute for an appeal. I find, however, that this the application constitutes a substantially new proposal. The applicants propose to modify a condition that applies throughout the subdivision. Further, as discussed above, the provision sought to be modified goes to the heart of the subdivision approval and subsequent modification. The applicants propose to remove something that at least some of the other lot owners assert they relied on in purchasing property. The applicants concede that at least two other owners could take advantage of this restriction, so it could have broader impacts on the subdivision. If the Code changes again, perhaps even more properties could develop. The applicants subsequently offered to limit the modification to their lot, but it would be difficult to deny otherwise eligible owners the same relief. In their burden of proof, the applicants argue that this criterion is not an issue because the Snow Creek Ranch plat already has been recorded and the lots sold. "Thus, neither a new subdivision or a replat approval is possible." I am not sure of the significance of this argument but note that the applicants now have conceded that their proposal does, in fact, constitute, a replat. The applicants have not met their burden on this issue. 4. Not have significant additional impacts on surrounding properties. As discussed below, I concur with staff that the addition of single dwelling in the location proposed does not have significant additional impacts on surrounding properties. But that is not the proposal at issue under this Code section. The issue is whether removing the prior condition, (as modified) and opening the subdivision to whatever development the Code allows now or in the future constitutes a significant impact. For the reasons discussed above, I find that it does. It opens the door to a fundamental change in the nature of the subdivision and removes the protections that formed the central basis for approving the lots in the first place. It may be that some other type of application constituting a new proposal could be approved that would meet the applicants' objective, but a modification of conditions is not the proper course in these circumstances. The applicants have not met their burden on this issue. C. An application to modify an approval shall be directed to one or more aspects of the approval, the modification of which would not amount to approval of a substantially new proposal or one that would have significant additional impacts on surrounding properties. Any proposed modification, as defined in DCC 22.36.040, shall be reviewed only under the criteria applicable to that particular aspect of the proposal. Proposals that would modify an approval in a scope greater than allowable as a modification shall be treated as an application for a new proposal. FINDING: This appears to substantially parrot the criterion discussed above and those findings and conclusions are incorporated herein. 11 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision D. An application for a modification shall be handled as a land use action. FINDING: The modification application is being handled by staff as a land use action, including a public hearing and notice of the decision to adjacent property owners. I could simply deny the application at this point but generally find that it is advisable to make findings on the remaining criteria for the consideration of any appellate body. TITLE 17 OF THE DESCHUTES COUNTY CODE. A. Chapter 17.08, Definitions and Interpretation of Language B. Chapter 17.22, Approval of Tentative Plans for Partitions Section 17.22 020 Requirements for Approval. A. No application for partition shall be approved unless the following requirements are met: 1. Proposal is in compliance with Oregon Revised Statutes Chapter 92, the applicable comprehensive plan and applicable zoning ordinance. A proposed partition is not in compliance with the zoning ordinance if it will conflict with the terms of a previously issued approval for land use on the property or will otherwise create a nonconforming use on any of the newly described parcels with respect to an existing structure or use; FINDING: Staff has identified the applicable provisions in ORS 92 and zoning ordinance in this report. Because this is not an amendment to the County's Comprehensive Plan or zoning maps, the Comprehensive Plan is not applicable to this application. The discussion below under Title 18 demonstrates how the application complies with the County's zoning ordinance. The applicant states: Because the 2001 nonfarm dwelling partition approval and recording of a nonfarm dwelling partition were prior to the legislative adoption of a July 1, 2001, lot creation date and the approval in MP -00-18 did not contain any prohibition on further division of the parent parcel, TL 161104000804, the current application is not in conflict with any prior approval and will not create a nonconforming use on either parcel. Staff is uncertain if this proposal, "...will conflict with the terms of a previously issued approval for land use on the property...", as the property is subject to MC -97-2 condition #5. Presumably, the applicants would contend that a finding that the application conflicts with a prior approval is an improper collateral attack on MP -00-18. None of the parties provided any analysis of the relevant case law and, as I already have found that the application should be denied, I do not feel compelled to do so in any detail. But in general terms, my understanding is that an impermissible collateral attack is one that is a belated challenge to a prior land use decision. See generally, Widgi Creek Homeowners Assn v. Deschutes Cnty. Or LUBA 2014- 109 p. 23 (2015); Martin v City of Central Point, Or LUBA 2016-042 p. 17 (2016). This is a 12 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision separate land use application to create a new parcel. Nothing in the applicants' prior nonfarm parcel/dwelling approval mandates that the deed restriction condition be waived or not enforced for all future applications. The lot and dwelling approved was consistent with the modified conditions of approval except for failure to require the deed restriction as a condition. Opponents are not seeking to overturn the prior partitioning. In short, absent a modification, which I have denied, the application for a partition conflicts with the requirement that the parcel be subject to a deed restriction permitting only one partitioning. This criterion is not met. 2. Proposal does not conflict with existing public access easements within or adjacent to the partition. FINDING: The title report submitted with the application verifies there are no public access easements with which the proposed partition would conflict. This criterion is satisfied. 3. The partition is accessed either by roads dedicated to the public or by way of United States Forest Service or Bureau of Land Management roads where applicant has submitted a written agreement with the appropriate land management agency providing for permanent legal access to the parcels and any required maintenance. This provision shall not be subject to variance. FINDING: Parcel 1 has frontage on but no direct access to US Highway 20 and has frontage on and access to Snow Creek Lane, a paved, two-lane, Deschutes County, rural, local road. The proposed nonfarm Parcel 2 would also have frontage on and have access to and from Snow Creek Lane. Therefore, the partition satisfies this standard. 4. An access permit can be obtained from either the County Public Works Department, the City Public Works Department or the State Highway Division. FINDING: Based on received comments from the Deschutes County Road Department it appears feasible to obtain this permit. Staff recommends the applicant be required to obtain an access permit prior to final plat approval. 5. Each parcel is suited for the use intended or offered, considering the size of the parcels, natural hazards, topography and access. FINDING: The discussion below under the Title 18 criteria demonstrates that the remaining proposed farm Parcel 1 will continue to be used for use as pasture for grass hay and possibly for livestock grazing. Much of the soil at the southern end of the remainder farm parcel is high value when irrigated and other soils in the farmed area can be productive if irrigated, which it has been for the last 12 years. Given the parcel's size, its agricultural uses in conjunction with the neighboring parcel and ground water irrigation rights, the parent parcel is well suited for farm use as either pasture for livestock or for irrigated crops. The proposed nonfarm Parcel 2 is intended to be sold by the applicants for the new buyer to build a dwelling and develop a homesite. The proposed size and topography of the new parcel is suitable for homesite development, as it is approximately 4.64 acres in size, will not be 13 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision irrigated, and will abut a small, nonfarm parcel. The proposed homesite is in an area of the property that is heavily vegetated with juniper trees land native brush. There are no known natural hazards in the area. Access for both parcels will be from Snow Creek Lane, which will require an access permit from the Deschutes County Road Department. Therefore, the partition meets this criterion. 6. All required utilities, public services and facilities are available and adequate and are proposed to be provided by the petitioner. FINDING: Staff notes that homesites in the immediate vicinity are served by utilities, public services and facilities. A detailed review of available services is provided below. No infrastructure deficiencies have been identified. 7. A water rights division plan, reviewed and approved by the appropriate irrigation district or the Watermaster's Office, if water rights are associated with the subject property. FINDING: Staff recommends the Hearings Officer include this requirement as a condition of any approval. 8. For partitions or portions thereof within one-half mile of SM zones, the applicant shows that a noise or dust sensitive use, as defined in DCC Title 18, can be sited consistent with the requirements of DCC 18.56, as demonstrated by the site plan and accompanying information required to be submitted under DCC 17.28.010 (C). FINDING: The subject property is not within one-half mile of any SM Zone. This criterion does not apply. B. If the Planning Director determines that the proposed partition constitutes series partitioning, or if series partitioning has occurred in the past, then the Planning Director may refer the application to the hearings officer for a determination as to whether the application should be subject to the requirements of DCC 17.36.300, Public Water Supply System, and DCC 17.48.160, Road Development Requirements for Subdivisions. FINDING: Pursuant to DCC 17.08: "Series partitioned lands" and "series partition" mean a series of partitions of land resulting in the creation of four or more parcels over a period of more than one calendar year. Staff is uncertain if these requirements apply to a partition of a partition parcel which is a lot in a replat of a subdivision. It appears that no more than 3 lots will have been created by partition, if this partition is approved. Staff believes that this provision is intended to allow for subdivision - like review for serial land divisions that have cumulative subdivision -like effects. To the extent this proposal does not constitute series partitioning, staff believes that such a finding would rely on a strict reading of the code, as written. None of the opponents have objected to staff's conclusion. I concur that it is unlikely this is a series partition. The original lots were created by subdivision not partitioning. If approved, the 14 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision subject lot would have been partitioned twice, for a total of one lot and two parcels. Alternatively, it is a replat. But it is not a series partition. 2. Section 17 22.030. Improvement Requirements. In the approval of a land partition, the County shall consider the need for street and other improvements, and may require as a condition of approval any improvements that may be required for a subdivision under the provisions of DCC Title 17. All roads in partitions shall be dedicated to the public without reservation or restriction, except where private roads are allowed by the applicable zoning regulations, such as in planned or cluster developments. FINDING: No new roads are proposed with this partition application given that both parcels will access an already established county, local road. No other roads are needed for either of the parcels. Therefore, no new road dedication is required. C. Chapter 17.16, Approval of Subdivision Tentative Plans And Master Development Plans FINDING: Staff is uncertain if the proposal is correctly characterized as a partition, as it may be a subdivision replat subject to these criteria. Staff requests the Hearings Officer to make findings on this issue. The applicant has conceded that this is a replat. The statute makes a partition in a subdivision plat subject to the subdivision standards rather than partition standards. None of the opponents have articulated any substantial prejudice from the failure of the applicant or staff to treat this initially as a replat. So, it appears to be harmless error. I think, except for Section 17.36.260, staff has done a good job in citing the potentially applicable requirements for a replat and explaining why they are not applicable to this replat or have been met. If the modification sought was to be approved for the entire subdivision, it is possible that some of the replat criterion would need further analysis because it would open the door to additional parcels, although how that would work if only a modification was sought without being joined with a proposal to create a new lot. D. Chapter 17.36, Design Standards. Section 17.36.020, Streets. A. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with intersection angles, grades, tangents and curves appropriate for the traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property which is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. 15 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. C. Streets in partitions shall be dedicated to the public. FINDING: Because both parcels will have adequate access to an already paved, public road, no new road is necessary. The applicant is not proposing any new circulation pattern. Thus, the above criteria are not applicable to the proposed partition 2. Section 17.36.040. Existinq Streets. Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition or by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDING: The parent lot, the prior parcel and the new parcel will continue to have access via Snow Creek Lane, which is 60 feet wide and runs north and south along the subject property's eastern boundary and runs east west for over 300 feet across the northern portion of TL 803, 804, 807 and 810. They will have 50 feet of frontage on Snow Creek Lane. Based on the lack of any identified required improvements from the Deschutes County Road Department, Deschutes County Transportation Planner, or ODOT, no improvements are necessary. 3. Section 17.36-060. Minimum Right of Way and Roadway Widths. The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in DCC 17.48. Where DCC 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDING: The lot/parcels will have access via Snow Creek Lane, which is already a 60 -foot wide county road, which complies with DCC 17.48.100. No roads from the partition to Snow Creek Lane are proposed. All access will be via driveways. As a result, most of the provisions in DCC Chapter 17.48 are not applicable to this proposal. Based on the lack of any identified required improvements from the Deschutes County Road Department, Deschutes County Transportation Planner, or ODOT, no improvements are necessary. 16 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 4. Section 17.36.070. Future Re -subdivision. Where a tract of land is divided into lots or parcels of an acre or more, the Hearings Body may require an arrangement of lots or parcels and streets such as to permit future resubdivision in conformity to the street requirements contained in this title. FINDING: In the EFU Zone, land divisions are only possible if the parent parcel was lawfully created prior to 2001. In this case, the proposed partition will give each new parcel a creation date after 2001. For this reason, unless the subject property was re -zoned, no further division of the resultant parcels will be allowed. Staff believes that no alternate arrangement of lots/parcels is required to permit future re -subdivision in conformity to the street requirements contained in this title, as such division appears unlikely. I concur. Further, since the further modification to the original modified condition has been denied, the condition baring additional parcels beyond those permitted by the existing condition of approval remains in place. 5. Section 17.36.080. Future Extension of Streets. When necessary to give access to or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition. FINDING: All adjoining land has road access sufficient to permit a satisfactory future division. Extension of streets to the boundary of the subdivision or partition is not required. 6. Section 17.36.160. Easements. A. Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. FINDING: Staff recommends that the Hearings Officer include this requirement as a condition of any approval. B. Drainage. if a tract is traversed by a watercourse, such as a drainageway, channel or stream, there shall be provided a stormwater easement or drainage right of way conforming substantially with the lines of the watercourse, or in such further width as will be adequate for the purpose. Streets or parkways parallel to major watercourses or drainageways may be required. FINDING: No watercourses traverse the property. This criterion does not apply. 17 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 7. Section 17 36 170. Lot Size and Shape. The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and for the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of DCC Title 18 through 21, with the following exceptions: A. In areas not to be served by a public sewer, minimum lot and parcel sizes shall permit compliance with the requirements of the Department of Environmental Quality and County Sanitarian, and shall be sufficient to permit adequate sewage disposal. Any problems posed by soil structure and water table and related to sewage disposal by septic tank shall be addressed and resolved in the applicant's initial plan. FINDING: None of the lots/parcels will be served by public sewer. The size, width and orientation of Parcels 1 and 2 are sufficient to accommodate the proposed uses. As noted below, each parcel will meet or exceed the minimum parcel size and frontage requirements of the EFU Zone. Given the sizes of the non-farm parcel, staff presumes this parcel can be approved for an on- site septic system. Prior to final plat approval, the applicant should be required to obtain septic site evaluation approval, as a condition of any approval of this application. B. Where property is zoned and planned for business or industrial use, other widths and areas may be permitted by the Hearings Body. Depth and width of properties reserved or laid out for commercial and industrial purposes shall be adequate to provide for off-street service and parking facilities required by the type of use and development contemplated. FINDING: The subject property is not zoned for business or industrial use. 8. Section 17.36.180. Frontage. A. Each lot or parcel shall abut upon a public road, or when located in a planned development or cluster development, a private road, for at least 50 feet, except for lots or parcels fronting on the bulb of a hammerhead, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management roads. Frontage for partitions off U.S. Forest Service or Bureau of Land Management roads shall be decided on a case by case basis based on the location of the property, the condition of the road, and the orientation of the proposed parcels, but shall not be less than 20 feet. In the La Pine Neighborhood Planning Area Residential Center District, lot widths may be less than 50 feet in width, as specified in DCC 18.61, Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road frontage standards in destination resorts shall be subject to review in the conceptual master plan. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDING: Both of the proposed parcels have more than 50 feet of road frontage as shown on the tentative plat. The side lot lines are shown on the tentative plan to be at right angles to Snow Creek Lane. The application satisfies these standards. 18 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 9. Section 17.36.190. Through Lots. Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at least 10 feet in width and across which there shall be no right of access may be required along the lines of lots or parcels abutting such a traffic artery or other incompatible use. FINDING: No double frontage parcels are proposed. This criterion does not apply. 10. Section 17.36.210. Solar Access Performance. A. As much solar access as feasible shall be provided to each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. If it is not feasible to provide solar access to the southern building line, then solar access, if feasible shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access. C. If the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be riled with the application. FINDING: The northern property line of the new nonfarm Parcel 2 will abut the southern property line of the existing nonfarm parcel, TL 811. Because the size of Parcel 2 will be 4.64 acres, sufficient land exists in the area of the new nonfarm Parcel 2 to provide sufficient solar access to TL 811 and still accommodate any topographical challenges. 11. Section 17.36.230. Grading of Building Sites. Grading of building sites shall conform to the following standards, unless physical conditions demonstrate the property of other standards: A. Cut slope ratios shall not exceed one foot vertically to one and one half feet horizontally. B. Fill slope ratios shall not exceed one foot vertically to two feet horizontally. C. The composition of soil for rill and the characteristics of lots and parcels made usable by fill shall be suitable for the purpose intended. D. When filling or grading is contemplated by the subdivider, he shall submit plans showing existing and finished grades for the approval of the Community Development Director. In reviewing these plans, the 19 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision Community Development Director shall consider the need for drainage and effect of filling on adjacent property. Grading shall be finished in such a manner as not to create steep banks or unsightly areas to adjacent property. FINDING: Staff recommends the Hearings Officer include these requirements as a condition of any approval. 12. Section 17.36.260. Fire Hazards. Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDING: The applicant has proposed a single point of access via Snow Creek Lane. Staff recommends the Hearings Officer require the applicant to demonstrate that the applicant has no ability to provide a second access to the subject property from the highway, prior to any finding of compliance with this criterion. Staff notes that ODOT has, in other subdivisions in Deschutes County, rejected general access to a Highway but has allowed gated emergency access. Staff recommends that Hearings Officer presumes that secondary access is possible until such access is clearly denied by ODOT. The application asserts that Highway 20 could be accessed to evacuate residents in an emergency. But that does not address emergency access to the property. The criterion is ambiguous when applied to a replat: do two accesses to the overall subdivision suffice or must there be two access to the newly created replat lot/parcel? Similarly, TP -91-760 is unclear to me. It discusses access to Highway 20 but does not seem expressly to require it and denied a proposed access road along Highway 20. At the hearing the applicant stated that it may be possible to access via Dusty Dirt road if access to Highway 20 is denied. Further, I am not comfortable with a condition leaving it to the applicant to apply to ODOT outside of the record. This criterion should have been addressed more fully and, therefore, has not been met based on this record. 13. Section 17.36.280. Water and Sewer Lines. Where required by the applicable zoning ordinance, water and sewer lines shall be constructed to County and city standards and specifications. Required water mains and service lines shall be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDING: No water or sewer lines are proposed. 14. Section 17.36.290. Individual Wells. In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. 20 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision FINDING: There is a well on the subject property. Well logs were provided for this well and two other wells that show that sufficient water exists for adding a new nonfarm dwelling parcel. This criterion is met. 15. Section 17.36.300. Public Water System. In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state or federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. FINDING: Given the availability of individual wells, staff finds that a public water system is not required. Staff notes that the proposed parcels will be much larger than the one -acre size described in this criterion. E. Chapter 17.44, Park Development. Section 17.44.010. Dedication of Land. A. For subdivisions or partitions inside an urban growth boundary, the developer shall set aside and dedicate to the public for park and recreation purposes not less than eight percent of the gross area of such development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. B. For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the land set aside to the public or develop and provide maintenance for the land set aside as a private park open to the public. D. The Planning Director or Hearings Body shall determine whether or not such land is suitable for park purposes. E. If the developer dedicates the land set aside in accordance with DCC 17.44.010(A) or (B), any approval by the Planning Director or Hearings Body shall be subject to the condition that the County or appropriate park district accept the deed dedicating such land. F. DCC 17.44.010 shall not apply to the subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDING: The subject property is not located within the boundaries of a parks district. Additionally, the applicant has not proposed to dedicate land for a park. In lieu of setting aside park land, the applicant can pay an equivalent fee pursuant to DCC 17.44.020 below. 21 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 2. Section 17.44.020. Fee in Lieu of Dedication. A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that will have been donated under DCC 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board and/or applicable park district. B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of a parks district with a permanent tax rate. FINDING: As noted above, the subject property is not located within the boundaries of a park district and the applicant has not proposed to set aside land for a park. For these reasons, staff recommends a condition of any approval requiring the applicant to pay a parks fee of $350, prior to final plat. F. Chapter 17.48, Design and Construction Specifications Section 17 48.100. Minimum Right of Way Width. The minimum right of way width is 60 feet unless specified otherwise in Table A (or in any right of way specifications set forth for a particular zone in a zoning ordinance). (See Table A set out at the end of DCC Title 17.) FINDING: No right of way deficiencies were identified in agency comments. 2. Section 17.48.160. Road Development Requirements Standards. B. Improvements of Public Rights of Way. 1. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development. 2. All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable road classification, except where a zoning ordinance sets forth different standards for a particular zone. FINDING: No road improvement deficiencies were identified in agency comments. No improvements are required. 3. Section 17.48.170. Road Development Requirements Partitions. Roadway improvements within a partition and to a road maintained by a public agency shall be constructed prior to final approval of the partition, depending on the maximum parcel size as follows: 22 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision A. For a parcel size of 10 acres or larger, the minimum road improvement standard shall be 20 feet wide with five inches of aggregate surfacing (cinders are acceptable), the centerline of which coincides with the centerline of the right of way; FINDING: No road improvement deficiencies were identified in agency comments. No improvements are required. 4. Section 17.48.210. Access. A. Permit Required. Access onto public right of way or change in type of access shall require a permit. Permits are applied for at offices of the Community Development Department. FINDING: Staff recommends a condition of approval that requires the owner of the nonfarm Parcel 2, prior to the issuance of a building permit, obtain the appropriate access permit from the Deschutes County Community Development Department for access to and from Snow Creek Lane. TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. A. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES. Section 18.16.030. Conditional uses permitted - High value and non -high value farmland. The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or nonhigh value farmland subject to applicable provisions of the Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable sections of Title 18. A. Nonfarm dwelling FINDING: The applicant is proposing to establish a nonfarm dwelling in the EFUTRB zone. A portion of the property is within the LM zone, but not where the new nonfarm Parcel 2 is proposed to be located. The proposed use may be allowed as a conditional use if the applicant satisfies the applicable criteria in Title 18 of the County Code. The applicants have not proposed to establish any other nonfarm use at this time. 2. Section 18.16.040. Limitations on Conditional Uses. A. Conditional uses permitted by DCC 18.16.030 may be established subject to ORS 215.296 and applicable provisions in DCC 18.128 and upon a Finding by the Planning Director or Hearings Body that the proposed use: 1. Will not force a significant change in accepted farm or forest practices as defined in ORS 215.203(2)(c) on surrounding lands devoted to farm or forest uses; and 2. Will not significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest uses; and 23 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision FINDING: The County has applied an area of analysis that covers all properties within a one - mile radius of the subject property. This radius has been determined to be sufficient to identify farm or forest uses that might be impacted by the proposed nonfarm dwellings. Forest zoned lands are located adjacent to the south of the subject property and across Highway 20 the southwest. There is no evidence in the record of forest practices in the surrounding area; the predominant tree species in the surrounding area is juniper, which is not a commercial species. For these reasons, the proposed nonfarm dwelling will not force a significant change in, or significantly increase the cost of, accepted forest practices on surrounding lands devoted for forest use. The record indicates that approximately 25 percent of the study area is comprised of non-EFU zoned lands including Multiple Use Agricultural (MUA10), Forest Use 1 (F1), Forest Use 2 (F2), and Flood Plain (FP). Staff excluded these lands should be excluded from consideration under this criterion because they are not devoted to farm uses and there is no evidence of forest practices in the study area and there was no contrary evidence submitted. The remainder of the study area is comprised of 53 privately owned EFU tax lots, including the subject property. Of the 53 total EFU tax lots, 19 of these are receiving farm tax deferral, with 7 of the deferred properties having irrigation. The typical farm practices in the area include pasture and livestock grazing (horses and cattle), and some grass hay and alfalfa. The applicant characterizes resource land use in the area as follows: Most of the farming in the area is for raising crops, primarily hay. The Walker farm to the south, TL 1611150001600 and 1700, and the Hupp Family farms, TL 1611090000700, grow hay and raise livestock. None of these farm activities would be visible from the subject property and the subject property would not be visible to them. None of the traffic from Parcel 2 will affect these farms on the other side of Highway 20 because no direct road access to those parcels exists from northwest side of the highway. As for traffic on Snow Creek Lane, the dwelling will add a maximum of only 10 vehicle trips per day to Snow Creek Lane. Also, the traffic to and from the dwelling would not be enough to block any farm related traffic from accessing either the farming activities on the subject property's farm use in conjunction with TL 803 or to the farming activities on the east side of Snow Creek Lane. Snow Creek Lane ends at the southern end well before Hwy 20 and the north/south portion of that road is accessed only by TLs 1611040000100, 804, 805, 808, 811, 1611090000100. 1611100000300 and 301. Therefore, the dwelling will not cause any additional traffic to enter the area from the south. Access roads or driveways do exist at the southern terminus of Snow Creek Lane to the farming area on TL 804 and 803, TL 805 and to a couple of other farmed parcels to the east of the subject property. Only traffic to the four areas of farm use and to the three existing dwellings and this new dwelling along the north/south portion of Snow Creek Lane and TL 301 and 300 would have any reason to use the portion of Snow Creek Lane that runs north/south. Although TL 161104000810 has tax deferred status, the only other farm use along the east/west portion of Snow Creek Lane is on TL 807 and that farming activity is also in the southwest portion of the parcel with no access roads directly from the 24 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision proposed new nonfarm Parcel 2. The several nonfarm parcels immediately to the north of the Snow Creek Ranch subdivision do not have vehicle access Snow Creek Lane because all the parcels on the south side of Snow Creek Lane extend at least a few feet to the north side of Snow Creek Lane. The other nonfarm parcels have road access to the north on Plainview Road. Properties on the east side of the north/south Snow Creek Lane that are further east of the parcels mentioned above are publicly owned and, therefore, not farms. Additionally, any nearby forest -zoned land is across Hwy 20 and the subject property would have no direct access to Hwy 20 to cross it and, thus, will not have any impact on those properties. Also, most of that forest -zone land is publicly owned and appears from the aerial photos to have very little in the way of marketable trees. The one corner of the stated -owned property, TL 600, that is on the same side of Hwy 20 as the subject property appears from the D.I.A.L. interactive map measurement tool to be a couple thousand feet from the proposed new nonfarm Parcel 2 and has no access to Snow Creek Lane. To travel north, the vehicle trips to and from Parcel 2 would have to traverse Snow Creek Lane to Fryrear Road. That road abuts the western property line of the farm parcels north of Plainview Road. Fryrear Road, however, already has traffic from the adjacent MUA zoned properties that create many more vehicle trips than the proposed Parcel 2 would. Also, no through roads exist through that farming area until reaching Fryrear Ranch Road at the most northing portion of the study area and that road leads to the east only to the MUA zone properties and terminate at the eastern boundary of the Fryrear Ranch subdivision. Thus, any vehicle from Parcel 2 would not be traveling east -west through those farm parcels. As a result, the traffic from Parcel 2 should not add any greater adverse impact either by noise or congestion to those farm uses. The residents and visitors to the new dwelling would likely use Fryrear Road to access Hwy 126 to the north. Given the already considerable amount of rural residential uses along that road, adding this one dwelling would not cause any more difficulty to farming activities accessing that road than they already may have. The above information is bolstered by the Responses and Decision in MP -00-18, Exhibit O. The Responses under the same provision (differently numbered) in 2000, say that the area used to have heavier farming activities, but, in recent years, the land use pattern has become "dominated by rural residential development." Farming activities do not appear to have changed or increased since that decision despite most of the properties immediately surrounding the subject property having ground water rights that could be used for irrigation. As for the use of water, the applicants intend to drill a new well for the new nonfarm parcel. Exhibit P is an e-mail from Bill Nashem, Assistant Watermaster for the South -Central Region of Oregon, along with copies of adjacent water wells. That e-mail shows that there is sufficient water for a new domestic water well. The new Parcel 2's wastewater disposal system will not affect any of the surrounding properties because the system will be built to state specification that require that the wastewater remain onsite and not become a nuisance to the surrounding properties. 25 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision The record includes information from the Oregon State University Extension Service describing the types of impacts the farming practices in the surrounding area could generate on nearby lands. Maintaining irrigated pasture can generate dust from re -seeding, drifting of herbicides from spraying, vehicle noise from trucks, manure odor from fertilizing, and possible water runoff from irrigation. Grazing livestock can generate dust, manure odor, possible interference with vehicular traffic, and property damage if livestock escape. As a condition of approval, the owner will be required to sign and record in the County Clerk's office a document binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices for which no action or claim is allowed under ORS 30.396 or 30.397. The recordation of this document with the County Clerk helps ensure that the proposed nonfarm dwelling will not significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm use, nor will it significantly increase the cost of accepted farm practices. The proposed nonfarm dwelling is subject to a required 100 -foot setback for nonfarm dwellings adjacent to properties receiving farm tax deferral. The proposed distances from the dwelling site to farm uses in the area will provide a buffer to mitigate farm -related impacts. Within the study area, 28 of the 53' privately owned EFU tax lots are developed with dwellings. Given the establishment of a significant number of residential uses and the continuing farm uses in the study area, there is no evidence the existing residential uses have had a negative impact on those farm uses. Summarized as follows, the proposed nonfarm dwelling will not be subject to adverse impacts from adjacent farm uses, nor will it cause a significant change in or significantly increase the cost of accepted farming practices occurring on nearby lands because: 1. A minimum setback of 100 feet applies to the nonfarm dwelling. The proposed home site will be located over 100 feet from all farm -adjacent property lines. 2. The applicant will be required to sign and record a document binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices, as discussed below. Although general concerns were raised in some of the testimony, no specific interference with farm practices was articulated. There were concerns raised about additional traffic on Snow Creek Lane, but not in the context of interfering with the movement of farm vehicles or other farm practices. Accordingly, I concur with staff's analysis. 3. That the actual site on which the use is to be located is the least suitable for the production of farm crops or livestock. FINDING: In the Clough decision (file no. 247-15-000035-CU/247-15-000403-A), the Board of County Commissioners determined that when the general unsuitability criterion of 18.16.050(G)(1)(a)(iii) is met, the least suitable criterion of Section 18.16.040(A)(3) above is satisfied as well. The findings under DCC 18.16.050(G)(1)(a)(iii) below are incorporated herein by reference. Staff notes that there are minor discrepancies between applicant and staff counts of dwelling and parcels. Staff relies on the Assessor's records for these counts. 26 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision 3. Section 18 16 050. Standards for Dwellings in the EFU Zones. Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under the conditions set forth below for each kind of dwelling, and all dwellings are subject to the landowner for the property upon which the dwelling is placed, signing and recording in the deed records for the County, a document binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices for which no action or claim is allowed under ORS 30.936 or 30.937. FINDING: The applicant/owner will be required to sign and record the above document prior to issuance of the building permit for the dwelling. A condition of approval is recommended as a condition of any approval to ensure compliance. G. Nonfarm Dwelling. 1. One single-family dwelling, including a manufactured home in accordance with DCC 18.116.070, not provided in conjunction with farm use may be permitted on an existing lot or parcel subject to the following criteria: a. The Planning Director or Hearings Body shall make findings that: i. The dwelling or activities associated with the dwelling will not force a significant change in or significantly increase the cost of accepted farming practices, as defined in ORS 215.203(2)(c), or accepted forest practices on nearby lands devoted to farm or forest use. FINDING: This approval criterion is nearly identical to the approval criterion under DCC 18.16.040(A)(1) and (2). Those findings are incorporated herein by reference. This criterion will be met. ii. The proposed nonfarm dwelling does not materially alter the stability of the overall land use pattern of the area. In determining whether a proposed nonfarm dwelling will alter the stability of the land use pattern in the area, the county shall consider the cumulative impact of nonfarm dwellings on other lots or parcels in the area similarly situated, by applying the standards under OAR 660-033-0130(4)(a)(D), and whether creation of the parcel will lead to creation of other nonfarm parcels, to the detriment of agriculture in the area. FINDING: On June 1, 1998, the Land Conservation and Development Commission adopted amendments to the administrative rules implementing Goal 3, Agricultural Lands (OAR Chapter 660-033) to incorporate case law and to clarify the analysis under the "stability" approval criterion. The rules continue to apply the three-step "stability" analysis first articulated in Land Use Board of Appeals (LUBA) case Sweeten v. Clackamas County, 17 Or LUBA 1234 (1989). The rules are as follows: 27 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision (D) The dwelling will not materially alter the stability of the overall land use pattern of the area. In determining whether a proposed nonfarm dwelling will alter the stability of the land use pattern in the area, a county shall consider the cumulative impact of possible new nonfarm dwellings and parcels on other lots or parcels in the area similarly situated. To address this standard, the county shall: (i) Identify a study area for the cumulative impacts analysis. The study area shall include at least 2000 acres or a smaller area not less than 1000 acres, if the smaller area is a distinct agricultural area based on topography, soil types, land use pattern, or the type of farm or ranch operations or practices that distinguish it from other, adjacent agricultural areas. Findings shall describe the study area, its boundaries, the location of the subject parcel within this area, why the selected area is representative of the land use pattern surrounding the subject parcel and is adequate to conduct the analysis required by this standard. Lands zoned for rural residential or other urban or nonresource uses shall not be included in the study area; (ii) Identify within the study area the broad types of farm uses (irrigated or non -irrigated crops, pasture or grazing lands), the number, location and type of existing dwellings (farm, nonfarm, hardship, etc.), and the dwelling development trends since 1993. Determine the potential number of nonfarm/lot of record dwellings that could be approved under subsections (3)(a) and section 4 of this rule, including identification of predominant soil classifications, the parcels created prior to January 1, 1993, and the parcels larger than the minimum lot size that may be divided to create new parcels for nonfarm dwellings under ORS 215.263(4). The findings shall describe the existing land use pattern of the study area including the distribution and arrangement of existing uses and the land use pattern that could result from approval of the possible nonfarm dwellings under this subparagraph; (iii) Determine whether approval of the proposed nonfarm/lot of record dwellings together with existing nonfarm dwellings will materially alter the stability of the land use pattern in the area. The stability of the land use pattern will be materially altered if the cumulative effect of existing and potential nonfarm dwellings will make it more difficult for the existing types of farms in the area to continue operation due to diminished opportunities to expand, purchase or lease farmland, acquire water rights or diminish the number of tracts or acreage in farm use in a manner that will destabilize the overall character of the study area; FINDING: Cumulative Impacts Analysis Area. The County has previously applied an area of analysis including all EFU-zoned land located within a one -mile radius of the subject property's boundaries and including approximately 2,000 acres (hereafter called "study area"). Staff finds that this area of analysis is suitable to provide a comprehensive analysis of the character of 28 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision the area surrounding the subject property because of its size and the number of parcels located within it. Approximately 75 percent of the study area is zoned EFU-SC or EFU-TRB. There are 68 EFU-zoned tax lots in the study area (including the subject property). Fifteen of these tax lots are in public ownership. Fifty-three of these tax lots are in private ownership and range in size from 1 to 240 acres. Twenty-six of these lots are 20 acres or less in size; eleven tax lots are 20+ to 40 acres in size, and twelve tax lots are 40+ to 80 acres in size, and 6 are greater than 80 acres in size. Types of Farm Uses. The types of farm uses in the area are described earlier. Portions of the south-east of the study area are located within the boundaries of Tumalo Irrigation District. The remainder is not located within an irrigation district. High-value when irrigated soils comprise 50.4% of the study area, in 5 soil types (Natural Resource Conservation Service codes 27A, 3113, 65A, 98A, 152A). Seven other soil types include soil complexes with significant rockiness or depth -to -rock difficulties or extreme slopes. The Assessor's maps, aerial photographs and the soils maps included in the record show the high value (when irrigated) soils are located throughout the study area and are the predominant soil type. Existinq Dwellings. Available County record indicates twenty-eight of the 53 privately -owned, EFU-zoned tax lots in the study area have dwellings. Four of these dwellings were built prior to 1979, two were built between 1979 and 1992, and twenty-two were built in 1993 or after. The dwellings developed prior to 1979 predated the County's EFU zone and therefore were not subject to EFU zoning requirements. The two dwellings developed between 1979 and 1992 appear to be replacements of earlier dwellings. Dwellings constructed up until the late 1980's were not necessarily reviewed as either farm or nonfarm dwellings. The twenty-two dwellings constructed in 1993 or after included 12 nonfarm dwellings, 8 replacement dwellings, and two farm dwellings. The applicant characterizes existing development as follows: Exhibit G shows 28 lots include dwellings. As stated above, however, Exhibit G does not show existing dwellings on four additional lots. Those lots are TL 151133D000203 (the lot at the corner of Plainview Road and Fryrear Road on the north side of Plainview Road), TL 1611090000200 (the lot across Highway 20 from the subject property's southwest property line), TL 1611100000600 (the lot in the southeast corner of the study area, on the south side of Highway 20 and adjacent to the lot with the 1962 dwelling), and TL 1611150001600 (the Walker ranch at the most southeastern portion of the study area on the south side of Highway 20, across from the lot with the 1999 dwelling). Therefore, the study area contains 32 dwellings on either farm or forest -zoned land. The dwellings in the area were built between 1915 and 2015. The county online records are incomplete as to what type of dwelling approvals were issued for a few of the dwellings, but, of the ones built 1990 or after, the majority appear to be nonfarm dwellings. In addition to the nonfarm dwellings, two temporary use for medical hardship dwellings have been approved. Also, there is one farm -related dwelling and four replacement dwellings. 29 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision The area immediately around the subject property is primarily zoned EFUTRB with several nonfarm dwellings along the north side of Snow Creek Lane and a few more in the center of the eastern half of the section. The nonfarm dwellings between Snow Creek Lane and Plainview Road range in size between 3.08 and 8.61 acres. The new nonfarm Parcel 2 will be within that range. In all directly many large parcels owned by the State or the US government. To the south and west are parcels that are primarily zoned F-1 and are primarily owned by the US government and the State of Oregon. A few larger parcels, namely the 228 -acre Walker farm, are located to the southeast and southwest of the subject property. Dwellinq Development Trends Since 1993. As discussed above, County records indicate that the twenty-two dwellings constructed in 1993 or after included 12 nonfarm dwellings, 8 replacement dwellings, and two farm dwellings. Potential Nonfarm Parcels and Dwellings. The applicant provides (and staff concurs) with the following analysis of potential non-farm parcels and dwellings in the study area: None of the lots within the Snow Creek Ranch subdivision would be eligible for a nonfarm dwelling without a nonfarm dwelling partition. This is because all of OAR 660-033-0020(4) requires a lot to have been created prior to 1993 date for nonfarm dwellings on parcels other than those created by DCC 18.16.055. The subdivision was originally created in 1998. This affects all the lots south of Snow Creek Ranch, north of Highway 20, east of Fryrear Road and west of TL 1611000000800. Therefore, the only method of adding a nonfarm dwelling to these parcels is through the DCC 18.16.055 land division process. TLs 808, 811, 812 would not be eligible because they would not meet the minimum lot size for the irrigated land in the EFUTRB zone or the 80 -acre minimum for non -irrigated land under DCC 18.16.055(C). Each of the remaining lots in the Snow Creek Ranch subdivision do have a creation date prior to the effective date of ORS 215.263(5)(a)(B). The Assessor's records, however, shows that only TLs 803 and 804 have water right for irrigation. TLs 805 and 807, however, must have water rights because they are actively engaged in growing hay as the aerial photos show. For purposes of this application, the applicants assume each of those four lots would then be eligible for at least one additional nonfarm dwelling parcel with TLs 810 and 900 not being eligible because of the lack of irrigation and their size. TL 809 is a part of the legal lot with 1611050000700. Even combined with that latter lot, TL 809 would not be eligible for an additional nonfarm dwelling or nonfarm dwelling partition because it is only 10.57 acres, less than half of the minimum lot size for irrigated land in the EFUTRB zone. The lots that would be eligible for two nonfarm parcels are TL 1611100000300 and TLs 1611100000301, which includes TL 1611090000100 as part of one legal lot ("Wimberly lot"). The only way either lot could create two nonfarm parcels would be to partition their lots such that the existing dwelling would be on one nonfarm parcel and a new nonfarm parcel would be created near the existing dwellings. Those are the only areas on either lot that could possibly meet the DCC 18.16.050(G)(1)(a)(iii) requirement that the dwellings be in an area that is "generally unsuitable for the production of farm crops and livestock." The rest of 30 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision those lots are in full farm production. With two exceptions, none of the lots north of the Snow Creek Ranch subdivision but south of Plainview Road, including the parcel to the east of Fryrear Road, would be eligible for additional nonfarm dwellings. Those already have nonfarm dwellings, and none have sufficient acreage to meet the minimum lot dimensional standards for a partition. To the north of Plainview Road, TLs 151133D000200-203 are not eligible for additional nonfarm dwellings or parcels because they were already part of a nonfarm dwelling partition approval in 2013. TL 300 in that same section could be eligible for one nonfarm dwelling but not an additional parcel because the parcel is too small to meet the minimum parcel size. The following table shows the possible additional nonfarm dwellings and parcels. The number of parcels is based on the assumption that some of the lots are irrigated parcels because of the aerial photos of those lots showing the actual use of water for growing crops despite the Assessor's records not showing those lots have water rights. Additionally, for the lots with the potential for a nonfarm dwelling but are not eligible for a partition is assuming the Assessor's records are correct that those lots do not have water rights. 31 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision NONFARM ONE OR DWELLINGS TAX LOT OWNER ACRES TWO'ADD'L NONFARM W/O AN ADDITIONAL PARCELS: PARCEL 151133A000900 OLSEN, KRIS 39.77 0 1 151133D000300 CROW, JIMMY R & 38.76 0 1 STRATTON, CAROLINE 151134C000400 LINDSAY, ROB & TRISA 39.07 0 1 1611040000300 SADLER, RICHARD R & 6.49 0 1 WANETAH G 1611040000600 MARQUARDT, MICHAEL D & 5.86 1 PEGGY SUE 1611040000803 FACKLER REVOCABLE 46.62 1 0 TRUST 1611040000804 STEINFELD, H RICHARD & 69.37 & PAMALYNN N 1 0 1611090000101 1611040000805 FREUND, JARRY & JEANNIE 61.44 1 0 1611040000807 NORTHERN GAIT HORSE 49.61 1 0 FARM LLC 1611090000100 WIMBERLY, THOMAS K & 75.80 1 0 & 161110000301 JANICE E 161110000300 DENSE, L DOUGLAS et al 109.59 2 0 1611090000700 HUPP FAMILY LLC 68.13 1 1611150001600 WALKER, MARIANNE MAY 228.44 2 1 TTEE ET AL TOTAL 9 7 TOTAL POTENTIAL DWELLINGS 16 31 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision Therefore, the study area has the potential for 16 more nonfarm dwellings. The likelihood is slim, however, for some of the above listed lots to actually divide the property to place additional dwellings on them. For example, although 161110000300 and the 1611090000100/161110000301 have sufficient irrigated acreage to break off an additional lot, the majority of these lots are in farm use such that not much land remains that would likely be considered generally unsuitable for farm use. What land might be in that category already contains extremely large dwellings. The owners of those dwellings are not likely to want a neighbor so close to the existing dwelling. Also, because of the soil types, unless other factors, such as rock outcroppings are at play, most of the potential to find areas of general unsuitability would be more likely for the parcels north of Plainview Road as opposed to those parcels south of that road and, in particular, those that are on the west side of Highway 20. Thus, the likely number of potential nonfarm dwellings in the study area is probably fewer than the 16 shown in the table. Staff notes that the eligibility of other properties for land use approvals cannot be formally determined as part of this process. This assumed ineligibility of these properties for specific land use approvals is not binding or final on these other properties. Potential Lot of Record Dwellings. The applicant provides (and staff generally concurs) with the following analysis of potential non-farm parcels and dwellings in the study area: Depending on the year of creation and ownership, under Section 18.16.050(E) and (F) and OAR 660- 033-130(3), a lot -of -record dwelling may be sited on an EFU- zoned parcel on high value and nonhigh value farmland in accordance with various criteria. It is difficult to assess, absent an actual application for a lot -of -record, whether a lot would qualify for such an approval. For the purposes of this analysis, however, the applicant assumes that any vacant tax lot created prior to 1985 could also qualify for a lot -of -record dwelling if the current owner has owned the lot since January 1, 1985 per DCC 18.16.050(E) and (F). All of the EFU lots within the study area, however, were conveyed to their current owners after January 1, 1985 or already have a dwelling on them. Exhibit Q shows that most of the lots were created after 1990. For the other lots, the deeds show that the current owners were not owners as of the county code cut-off date. Therefore, no parcels within the study area are eligible for a lot of record dwelling. Staff notes that the eligibility of other properties for lot of record dwellings cannot be formally determined as part of this process. This assumed ineligibility of these properties for lot of record dwellings is not binding or final on these other properties. Stability and Character of the Land Use Pattern of the Area. The information above shows that the study area is already dotted with dwellings. The development in the area continued over the last 16 years in much the same way as described in the MP -00-18 decision, which was a "patchwork of rural residential development and small to medium acreage zoned for exclusive farm uses with big blocks of public land at the margin." The proposed dwelling will be consistent with the land use pattern of the area by allowing a nonfarm dwelling on dry, unproductive property. 32 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision Effect on Stability from Proposed Nonfarm Partition and Nonfarm Dwelling. The applicant provides (and staff generally concurs) with the following analysis of effect on stability from proposed nonfarm partition and nonfarm dwelling: The proposed Parcel two will be situated amongst several smaller, EFU nonfarm parcels. Because of the several nonfarm dwelling parcels to the north that cannot be divided further and the large number of irrigated land around the subject property, although the chart above shows possible nonfarm dwellings, few lots in the immediate area would be able to divide further and add dwellings because the available area that is "generally unsuitable" for farming is limited. Thus, the likely number of additional dwellings is probably much smaller than the chart above indicates. Additionally, much of the land around the margins of the study area is publicly -owned land for which a prediction of its future use is impossible and would be merely speculation. The proposed nonfarm dwelling parcel itself would not interfere with any farm use in the immediate area because it would be located on nonfarmable land on a dead- end road where only a few other nonfarm dwellings could be approved. Although TL 1611090000100 is adjacent to the subject property, it is part of a legal lot with 1611100000301, and that latter area already includes a dwelling. From the online records in D.I.A.L., two lots appear to have nonfarm dwelling applications pending, TL 151133D000202 and 1611090000000700. Therefore, the cumulative effect of adding the proposed nonfarm dwelling will not "materially alter the stability of the land use pattern in the area. The new dwelling will not make it more difficult for the existing farms to continue operation due to diminished opportunities to expand, purchase or lease farmland, acquire water rights or by diminishing the number of tracts or acreage in farm use. There are approximately 2,064 acres of privately -owned land in the study area of which approximately 1,302 acres are in farm use and approximately 762 acres are not in farm use if the acreage for each of lots in farm tax deferral listed in Exhibit F is the method of counting. If only privately -owned, EFU- zoned land is counted, the study area contains approximately 1,728 acres with approximately 966 acres of that land in deferral and the same 762 acres not in deferral. Fifty-one percent (27 out of 53 tax lots) of all the tax lots or 52 percent (26 out of 51) EFU-zoned tax lots have or will have dwellings in the near future. That results in 36 percent and 42 percent, respectively, of the acreage in the study area. Six of the lots in tax deferral have dwellings. Because many of these lots have dwellings on them, nonfarm, replacement, farm and medical hardship temporary dwellings, it is difficult to know how many of those acres are in actual farm use. Additionally, three of the lots are zoned F1 and, therefore, would not be subject to the nonfarm dwelling code provisions. The above information shows that the study area contains a mix of residential and farm uses along with large areas of publicly owned land on which no farm or forest uses exist. Additionally, the vacant nonfarm parcels are dry and not in farm use. With the exception of the Walker and Hupp Family farms on the south side of Highway 20, most of farming in the area the study area is adjacent two or near the subject property. As the exhibits show, several nonfarm dwellings have been 33 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision constructed near these parcels and farming continues. Adding the proposed nonfarm parcel would result in 54 percent of the number of lots having dwellings but would only negligibly increase the percentage of acreage (42.37% versus 42.59%). The proposed nonfarm Parcel 2 is 4.64 acres of dry, relatively uneven terrain at the edge of a larger farm parcel with aground water irrigation permit. The proposed nonfarm dwelling would be sited on an isolated unproductive parcel. Approving the proposed nonfarm parcel and nonfarm dwelling would not reduce the amount of farmland in farm use or reduce the amount of water rights available for farm uses. It would increase the amount of taxable land by 4.64 acres, or about five percent of the parent parcel, because that area would no longer receive a farm tax deferral. Furthermore, upon approval of the nonfarm dwelling on the proposed Parcel 2, no water rights would be removed from the inventory available for farm use. Thus, the new parcel and dwelling would not reduce any water rights and, given that the parent parcel could still be farmed with the creation of this new parcel, this farm would not become unstable. The parcel would also be in keeping with the typical nonfarm parcel in the area. The parcels in the area are two to ten acres in size. If an area for a proposed nonfarm dwelling had water rights, it would not likely be approved as being "generally unsuitable" for farm or forest use. Therefore, it is unlikely anyone would propose such a land division Approval of the proposed nonfarm dwelling will also not set a precedent for the wholesale approval of nonfarm dwellings to the detriment of surrounding farms. In this area, the few remaining farms are already surrounded by nonfarm and rural residential development. The one irrigated farm in the SC subzone is separated from the proposed nonfarm dwelling by a 450 to 600 -foot -wide band of nonfarm tax lots developed with houses. These nonfarm properties are vegetated with Juniper woodland, such that the farms to the north are not visible from the subject property. Additionally, the application Form A says that Snow Creek Lane is designated for 250 to 1500 vehicle trips per day. Assuming worst case scenario of 10 vehicle trips per day for each property with a dwelling or in farm use with the current use of the road for 12 dwelling and seven farms, the total current use of Snow Creek Lane is 190 vehicle trips per day, well below the capacity of this road. Thus, as Form A says, adding 10 more vehicle trips from a new dwelling would not cause this road to exceed its capacity. In fact, even if the nine potential additional dwellings are added, the number of vehicle trips on this road would be well below the road's capacity. Finally, the existing and potential nonfarm tax lots in the study area are typical of those developed with houses. These tax lots do not represent meaningful opportunities for expansion of existing farm operations through acquisition or lease. The properties that access Snow Creek Lane have the most potential for additional dwellings and nonfarm parcel, but the number is limited given the restraints on the lot creation date and the existing farm uses that would prevent a finding for much of the area of generally unsuitable for farming. Therefore, approving the nonfarm dwelling would not cause any further domino -effect of future 34 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision dwelling approvals because the area is already fairly developed with dwellings and has few lots with farming activities. The remaining vacant lots for which there is potential for nonfarm parcels and dwellings are dry, without water rights and not farmed. Staff notes that the eligibility of other properties for land use approvals cannot be formally determined as part of this process. This assumed ineligibility of these properties for specific land use approvals is not binding or final on these other properties. There were concerns about impacting the overall farm nature of the area but as far back as the original approval, the broader area was described as having significant rural residential development, which has increased overtime. It is hard to see how one dwelling in this location has any adverse impact on farming. Accordingly, I concur with staff. To the extent, if any, that this criterion would be relevant to removing the restriction on partitioning, there might be an issue that may need to be addressed if it is removed The proposed nonfarm dwelling is situated on an existing lot or parcel, or a portion of a lot or parcel, that is generally unsuitable for the production of farm crops and livestock, or merchantable tree species, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the tract. FINDING: The focus of this criterion is whether the parcel itself can produce farm crops, livestock, and merchantable tree species. Juniper is the only tree that grows in this area and it is not a commercial tree species. The applicant provides the following analysis of the terrain, adverse soil and land conditions at the property: Brian Rabe, Cascade Earth Science, tested the soils and determined that the soil and drainage conditions for 3.72 acres of Soil Type 141 C(S), Stukel, that is located in the general area of the proposed Parcel 2, results in that area being generally unsuitable for farm use and incapable of forest production. Exhibit K, page 4. Granted, portions of the proposed 4.64 -acre Parcel 2 include Soil Type 141 C(D), which is suitable for farming because it is a Class 6e soil. Only one section of the (D) soil, however, is directly connected to the farming area and the outline of that area is such an odd shape and small area that it would be difficult to farm that area, especially without a water right allowing that to be irrigated. See Exhibit K, Figure 4. The proposed southern property line, however, will not include at least a third of that portion of (D) soil will not be included in the new parcel. See Exhibit V, page 2. Additionally, the (D) soil exists along the eastern edge and a bit into the middle of the northern portion of the area studied by Mr. Rabe for a total of 17.78 acres. The eastern half of the proposed southern property line, however, angles north below a ridgeline such that some of the 3.72 acres of the (S) soil area will be excluded as will approximately half of the 1.78 acre, eastern portion of the (D) soil area. The angled property line is to preserve the ridgeline for the farming area because that is the highest area on the property and is where harvested hay is often temporarily stored before being trucked to other locations. 35 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision Again, that eastern and northern (D) soil area is oddly shaped, especially in the northern area, and small in size such that it would be difficult to use that area for farming, particularly since that area has no water. Also, in a conversation with Mr. Rabe, he said the soil depth is shallow in that area such that it would be difficult to farm it, although the soil would be deep enough that the area is likely the best area for the septic system drainage area. The proposed Parcel 2 area is also sparsely populated with ground vegetation such that grazing livestock in this area is not a viable option for farm use. That, coupled with the soils report and the discussion in the previous paragraphs, demonstrates that the area proposed for Parcel 2 is an area that is not generally suitable for the production of farm crops and livestock or merchantable tree species. Staff concurs that the proposed nonfarm dwelling will be situated on a parcel that is generally unsuitable for the production of farm crops and livestock, or merchantable tree species, due to terrain, adverse soil and land conditions at the property. I agree. I also note that the applicants have taken care to propose a parcel that permits continued use of an area for stockpiling hay and to not interfere with the applicants' farm operation. iv. The proposed nonfarm dwelling is not within one-quarter mile of a dairy farm, feed lot or sales yard, unless adequate provisions are made and approved by the Planning Director or Hearings Body for a buffer between such uses. The establishment of a buffer shall be designed based upon consideration of such factors as prevailing winds, drainage, expansion potential of affected agricultural uses, open space and any other factor that may affect the livability of the nonfarm -dwelling or the agriculture of the area. FINDING: No dairy farm, feed lot or sales yard is within one-quarter mile of the proposed new nonfarm Parcel 2. V. Road access, fire and police services and utility systems ( i.e., electrical and telephone) are adequate for the use. FINDING: Electrical, phone, and water are already available to the proposed nonfarm dwelling because of the provision of those utilities to the nonfarm dwelling on TL 811 immediately to the north of the proposed new nonfarm parcel. The new dwelling will have direct access to Snow Creek Lane which has access to Fryrear Road to the north and west. Snow Creek Lane is a paved, two-lane road that serves the rural residences along it. No infrastructure deficiencies have been identified in the record. On August 11, 2017, the applicant received an e-mail from William Nashem, Well Inspector and Assistant Watermaster for the South -Central Region, to which he attached the well logs from five surrounding wells. From those wells, Mr. Nashem estimated that the new Parcel 2 would be able to access water for domestic purposes at a depth of between 260 and 300 feet below the ground surface. The e-mail also said that the water flow would be between 24 and 200 gpm. See Exhibit P. The applicants will need to obtain, from the Deschutes County Environmental Soils Division, approval for a DEQ approved on-site sewage disposal system for the nonfarm parcel. Thus, a 36 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision condition of approval should be required that the applicants submit an analysis from the Deschutes County Environmental Soils Division that an onsite wastewater treatment system is feasible, prior to final plat approval. The Cloverdale Fire District that the district will serve the new nonfarm dwelling. The Deschutes County Sheriff's office provides law enforcement for the area and will cover the area with whatever patrol staff it has. Submitted Exhibit S is a letter from the Central Electric Co-op that the company can provide electrical service to the new Parcel 2. The applicant states that they contacted Century Link and Bend Broadband for a similar letter for phone and cable service. Neither company would provide such a letter but stated that, since the respective lines already exist at and serve TL 811, they can serve the new Parcel 2. This criterion is met. vi. The nonfarm dwelling shall be located on a lot or parcel created prior to January 1, 1993, or was created or is being created as a nonfarm parcel under the land division standards in DCC 18.16.055(B) or (C). RESPONSE: The new nonfarm dwelling will be located on a lot created under the land division standard in DCC 18.16.055(B). 2. For the purposes of DCC 18.16.050(G) only, "unsuitability" shall be determined with reference to the following: a. A lot or parcel shall not be considered unsuitable solely because of size or location if it can reasonably be put to farm or forest use in conjunction with other land if the parcel is under forest assessment, the dwelling shall be situated upon generally unsuitable land for the production of merchantable tree species recognized by the Forest Practices Rules, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the parcel. FINDING: The issue of whether nonfarm parcels can be put to farm use in conjunction with other properties is triggered under DCC 18.16.050(G)(2)(a) if the parcels are found to be unsuitable solely because of size or location. Central Oregon Landwatch v. Deschutes County, 56 Or LUBA 280 (2008); Williams v. Jackson County, 55 Or LUBA 223,230 2007 ( ) . The subject property is not unsuitable for farm or forest use solely because of its size or location. It is unsuitable for farm or forest use because it is comprised of very poor soils as confirmed by the information provided by Brian Rabe, Cascade Earth Science (discussed above and incorporated herein by reference). The location of the property is not an impediment to farm use. Its size is only an impediment to farm use for dry land grazing of cattle. Mr. Rabe's report confirms that, "The proposed Parcel 2 area is also sparsely populated with ground vegetation such that grazing livestock in this area is not a viable option for farm use." The subject property is not under forest assessment for the production of merchantable tree species. Merchantable tree species do not grow on the subject property or in the study area. b. A lot or parcel is not "generally unsuitable" simply because it is too small to be farmed profitably by itself. if a lot or 37 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision parcel can be sold, leased, rented or otherwise managed as part of a commercial farm or ranch, it is not "generally unsuitable." A lot or parcel is presumed to be suitable if it is composed predominantly of Class I -VI soils. Just because a lot or parcel is unsuitable for one farm use does not mean it is not suitable for another farm use. If the parcel is under forest assessment, the area is not "generally unsuitable" simply because it is too small to be managed for forest production profitably by itself. FINDING: The subject property is not generally unsuitable for the production of farm crops and livestock simply because it is too small to be farmed profitably by itself. Rather, the limitation is due to terrain, adverse soil and land conditions at the property. The lot or parcel cannot be sold or leased for use as a part of a commercial farm or ranch due to the low productivity of the soil and low grazing potential. The NRCS maps the proposed parcel as 141 C, a complex which may include some class six soils, depending on the site-specific mix of soils from the complex. This requires a presumption of suitability under this criterion. This is rebutted by Mr. Rabe's soil study, which indicates that the proposed parcel is not suitable for grazing or crop production. No other potential farm uses have been identified in the record. The parcel is not under forest assessment. C. If a lot or parcel under forest assessment can be sold, leased, rented or otherwise managed as a part of a forestry operation, it is not "generally unsuitable". If a lot or parcel is under forest assessment, it is presumed suitable if it is composed predominantly of soil capable of producing 20 cubic feet of wood fiber per acre per year. If a lot or parcel is under forest assessment, to be found compatible and not seriously interfere with forest uses on surrounding land it must not force a significant change in forest practices or significantly increase the cost of those practices on the surrounding land. FINDING: The subject property is not under forest assessment. 3. Loss of tax deferral. Except as provided in DCC 18.16.050(1)(2), pursuant to ORS 215.236, a nonfarm dwelling on a lot or parcel in an Exclusive Farm Use zone that is or has been receiving special assessment may be approved only on the condition that before a building permit is issued, the applicant must produce evidence from the County Assessor's Office that the parcel upon which the dwelling is proposed has been disqualified for special assessment at value for farm use under ORS 308.370 or other special assessment under ORS 308.765, 321.352, 321.730 or 321.815, and that any additional tax or penalty imposed by the County Assessor as a result of disqualification has been paid. FINDING: The new nonfarm dwelling parcel will lose any farm real property tax deferral status and that the prior years' taxes will have to be paid, in accordance with the statutes. Staff 38 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision recommends that the Hearings Officer include this requirement as a condition of any approval, prior to any building permit being issued 4. Section 18.16.055. Land Divisions. B. Irrigated land division. An irrigated land division shall be subject to the minimum lot or parcel size requirements of DCC 18.16.065, Subzones, and all applicable requirements of DCC Title 17. Partitions establishing parcels less than the EFU minimum parcel size established under DCC 18.16.065, may be permitted to create new parcels for nonfarm dwellings as follows: a. If the parent parcel is equal to or greater than the minimum parcel size established under 18.16.065, and is less than 80 acres in size, one new nonfarm parcel may be created subject to the following: L Parent parcel was lawfully created prior to July 1, 2001; FINDING: The subject parent parcel was created January 29, 2001 with the approval of MP- 00-18/FPA-01-5 and the recording of Partition Plat 2001-06. Those approvals and the recording of the plat occurred prior to the July 1, 2001, lot creation date that was adopted by the Oregon Legislature in the 2001 legislative session. Furthermore, neither MP -00-18 nor FPA -01-5 prohibited further division of TL 804, the parent parcel. The Nearys argue that the parent parcel was not lawfully created because the deed restriction against further partitioning was not recorded upon approval of MP -00-18. This again raises the question of whether a finding that this criterion is not met constitutes an impermissible collateral attack on the approval of the non-farm parcel/dwelling. Neither party provides any significant legal analysis. It appears that the 2000 approval "created" the parent parcel as a result of partitioning off the non-farm parcel. See generally, McGovern v Crook County, Or LUBA 2009-069 (2009). To prevail under this criterion, it appears that the opponents would have to demonstrate that MP - 00 -18 and FPA -01-5 were unlawful. That appears to be an impermissible collateral attack. Accordingly, I reject the contention that this criterion is not met due to illegality of the parent parcel. ii. Remainder parcel shall meet the minimum lot size established under 18,16.065; FINDING: The nonfarm Parcel 2 will be 4.64 acres. No water rights exist in the area that will be that parcel. The remaining farm Parcel 1 will be 64.73, which is greater than the 23 -acre irrigated land minimum for the EFUTRB subzone. Therefore, this criterion is met. iii. All standards established under 18.16.050(G) for the dwelling shall be met; FINDING: The DCC 18.16.050(G) standards are discussed above and that discussion shows that the nonfarm dwelling application meets those standards. 39 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision iv. No minimum lot size shall be required for the nonfarm parcel. FINDING: The nonfarm Parcel 2 will be 4.64 acres. V. The parcel for the nonfarm dwelling is generally unsuitable for the production of farm crops and livestock or merchantable tree species considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the tract. A parcel may not be considered unsuitable based solely on size or location if the parcel can reasonably be put to farm or forest use in conjunction with other land. FINDING: The findings made in this decision under DCC 18.16.050(G) by reference. D. Partitions in the Wildlife Area Combining Zones must meet the minimum lot sizes established under DCC 18.88.050. FINDING: The subject property is not located with a Wildlife Area Combining Zone. 5. Section 18.16.060. Dimensional Standards B. The minimum parcel size for non -irrigated land divisions created subject to DCC Title 17 is as specified under DCC 18.16.055(C). FINDING: The standards under DCC 18.16.055(C) are addressed above. The standards of DCC Title 17 are addressed below. D. Each parcel shall have a minimum street frontage of 50 feet. FINDING: The proposed parcels will have at least 50 feet of road frontage on the Snow Creek Lane. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The application does not indicate the height of the proposed dwellings. A condition of any approval should be added to ensure compliance. 6. Section 18.16.070. Yards A. The front yard shall be a minimum of.- 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm us, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. 40 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: This section of the County Code requires a minimum front yard of 40 feet from a local road, 25 feet from side property lines, and 25 feet from a rear property line. These required yards increase to 100 feet from the side and the rear property lines if a nonfarm dwelling is proposed and the property on which it will be located abuts land currently employed in farm use. As such, required setbacks will be 25 feet north side, 40 feet of Snow Creek Lane and 100 from all other property lines for the non-farm dwelling. As shown on the tentative plat, a homesite meeting the required setbacks from the property boundaries is feasible. 7. Section 18.16.080. Stream Setbacks To permit better light, air, vision, stream pollution control, protection of fish and wildlife areas and preservation of natural scenic amenities and vistas along streams and lakes, the following setbacks shall apply. A. All sewage disposal installations, such as septic tanks and septic drainfields, shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high water mark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet and the County Sanitarian finds that a closer location will not endanger health, the Planning Director or Hearings Body may permit the location of these facilities closer to the stream or lake, but in no case closer than 25 feet. B. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet measured at right angles to the ordinary high water mark. FINDING: There are no rivers or streams on or near the subject property. 8. Section 18.16.090. Rimrock Setback Notwithstanding the provisions of DCC 18.16.070, setbacks from rimrock shall be as provided in DCC 18.116.160 or 18.84.090, whichever is applicable. FINDING: The subject property has no rimrock on or near it. This standard does not apply. B. Chapter 18.84, Landscape Management (LM) Combining Zone FINDING: The applicants are not proposing any specific structures at this time. The non-farm parcel is not within the Landscape Management combining Zone associated with Highway 20. The applicant will need to go through LM review for any new structures that are within the LM zone on the remainder farm parcel. Staff recommends the Hearings Officer impose a condition of approval requiring compliance with DCC 18.84 for any future structures located in that overlay zone. 41 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision ORS CHAPTER 92 — SUBDIVISIONS AND PARTITIONS ORS 92.010 Definitions for ORS 92.010 TO 92.192. As used in ORS 92.010 to 92.192, unless the context requires otherwise: (13) "Replat" means the act of platting the lots, parcels and easements in a recorded subdivision or partition plat to achieve a reconfiguration of the existing subdivision or partition plat or to increase or decrease the number of lots in the subdivision. FINDING: As discussed above, initially the applicant contended that the partition proposal does not constitute a replat and staff was unsure. Subsequently, the applicant concluded that the applications do constitute a replat and no one contends otherwise. Accordingly, I will treat this as a replat but again note that under ORS 92.185 (6) it is difficult to apply some of the statutory provisions to what otherwise would appear to be a partition. 2. ORS 92.090 Approval of Subdivision Plat Names; Requisites for Approval of Tentative Subdivision or Partition Plan or Plat. FINDING: Staff was uncertain if these requirements apply to this proposal. As discussed above, they appear to apply as this technically is a replat, although there is an issue as to how some of them apply as a practical matter. (1) Subdivision plat names shall be subject to the approval of the county surveyor or, in the case where there is no county surveyor, the county assessor. No tentative subdivision plan or subdivision plat of a subdivision shall be approved which bears a name similar to or pronounced the same as the name of any other subdivision in the same county, unless the land platted is contiguous to and platted by the same party that platted the subdivision bearing that name or unless the party tiles and records the consent of the party that platted the contiguous subdivision bearing that name. All subdivision plats must continue the lot numbers and, if used, the block numbers of the subdivision plat of the same name last filed. On or after January 1, 1992, any subdivision submitted for final approval shall not use block numbers or letters unless such subdivision is a continued phase of a previously recorded subdivision, bearing the same name, that has previously used block numbers or letters. FINDING: Staff recommends the Hearings Officer include this requirement as a condition of any approval. (2) No tentative plan for a proposed subdivision and no tentative plan for a proposed partition shall be approved unless: (a) The streets and roads are laid out so as to conform to the plats of subdivisions and partitions already approved for adjoining property as to width, general direction and in all other respects unless the city or county determines it is in the public interest to modify the street or road pattern. 42 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision (b) Streets and roads held for private use are clearly indicated on the tentative plan and all reservations or restrictions relating to such private roads and streets are set forth thereon. FINDING: No new streets or roads are proposed. (c) The tentative plan complies with the applicable zoning ordinances and regulations and the ordinances or regulations adopted under ORS 92.044 that are then in effect for the city or county within which the land described in the plan is situated. FINDING: Applicable local regulations are reviewed below. (3) No plat of a proposed subdivision or partition shall be approved unless: (a) Streets and roads for public use are dedicated without any reservation or restriction other than reversionary rights upon vacation of any such street or road and easements for public or private utilities. (b) Streets and roads held for private use and indicated on the tentative plan of such subdivision or partition have been approved by the city or county. (c) The subdivision or partition plat complies with any applicable zoning ordinances and regulations and any ordinance or regulation adopted under ORS 92.044 that are then in effect for the city or county within which the land described in the subdivision or partition plat is situated. (d) The subdivision or partition plat is in substantial conformity with the provisions of the tentative plan for the subdivision or partition, as approved. (e) The subdivision or partition plat contains a donation to the public of all common improvements, including but not limited to streets, roads, parks, sewage disposal and water supply systems, the donation of which was made a condition of the approval of the tentative plan for the subdivision or partition. (fl Explanations of all common improvements required as conditions of approval of the tentative plan of the subdivision or partition have been recorded and referenced on the subdivision or partition plat. FINDING: Staff believes that these findings must be made at the time of final plat review. Staff recommends the Hearings Officer include these requirements as conditions of any approval. I agree except that (c) above does appear to apply at this stage and the findings in this decision address all identified standards. (4) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat of a subdivision shall be approved by a city or county unless the city or county has received and accepted: (a) A certification by a city -owned domestic water supply system or by the owner of a privately owned domestic water supply system, subject to regulation by the Public Utility Commission of Oregon, that water will be available to the lot line of each and every lot depicted in the proposed subdivision plat; 43 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision (b) A bond, irrevocable letter of credit, contract or other assurance by the subdivider to the city or county that a domestic water supply system will be installed by or on behalf of the subdivider to the lot line of each and every lot depicted in the proposed subdivision plat; and the amount of any such bond, irrevocable letter of credit, contract or other assurance by the subdivider shall be determined by a registered professional engineer, subject to any change in such amount as determined necessary by the city or county; or (c) In lieu of paragraphs(a) and(b) of this subsection, a statement that no domestic water supply facility will be provided to the purchaser of any lot depicted in the proposed subdivision plat, even though a domestic water supply source may exist. A copy of any such statement, signed by the subdivider and indorsed by the city or county, shall be filed by the subdivider with the Real Estate Commissioner and shall be included by the commissioner in any public report made for the subdivision under ORS 92.385. If the making of a public report has been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider shall deliver a copy of the statement to each prospective purchaser of a lot in the subdivision at or prior to the signing by the purchaser of the first written agreement for the sale of the lot. The subdivider shall take a signed receipt from the purchaser upon delivery of such a statement, shall immediately send a copy of the receipt to the commissioner and shall keep any such receipt on file in this state, subject to inspection by the commissioner, for a period of three years after the date the receipt is taken. FINDING: This requirement appears to be specific to subdivisions. Staff was uncertain if these requirements apply to a partition of a partition parcel which is a lot in a replat of a subdivision. It appears that compliance is required, probably in this case by notice under (c) above. Accordingly, if approved, compliance with this section should be required with the final plat. (5) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat of a subdivision shall be approved by a city or county unless the city or county has received and accepted. (a) A certification by a city -owned sewage disposal system or by the owner of a privately owned sewage disposal system that is subject to regulation by the Public Utility Commission of Oregon that a sewage disposal system will be available to the lot line of each and every lot depicted in the proposed subdivision plat; (b) A bond, irrevocable letter of credit, contract or other assurance by the subdivider to the city or county that a sewage disposal system will be installed by or on behalf of the subdivider to the lot line of each and every lot depicted on the proposed subdivision plat; and the amount of such bond, irrevocable letter of credit, contract or other assurance shall be determined by a registered professional engineer, subject to any change in such amount as the city or county considers necessary; or (c) In lieu of paragraphs(a) and(b) of this subsection, a statement that no sewage disposal facility will be provided to the purchaser of any 44 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision lot depicted in the proposed subdivision plat, where the Department of Environmental Quality has approved the proposed method or an alternative method of sewage disposal for the subdivision in its evaluation report described in ORS 454.755(1)(b). A copy of any such statement, signed by the subdivider and indorsed by the city or county shall be riled by the subdivider with the Real Estate Commissioner and shall be included by the commissioner in the public report made for the subdivision under ORS 92.385. If the making of a public report has been waived or the subdivision is otherwise exempt under the Oregon Subdivision Control Law, the subdivider shall deliver a copy of the statement to each prospective purchaser of a lot in the subdivision at or prior to the signing by the purchaser of the first written agreement for the sale of the lot. The subdivider shall take a signed receipt from the purchaser upon delivery of such a statement, shall immediately send a copy of the receipt to the commissioner and shall keep any such receipt on rile in this state, subject to inspection by the commissioner, for a period of three years after the date the receipt is taken. FINDING: This requirement appears to be specific to subdivisions. Staff was uncertain if these requirements apply to a partition of a partition parcel which is a lot in a replat of a subdivision. As with the immediately preceding standard, this appears to apply at final plat review. (6) Subject to any standards and procedures adopted pursuant to ORS 92.044, no plat of a subdivision or partition located within the boundaries of an irrigation district, drainage district, water control district, water improvement district or district improvement company shall be approved by a city or county unless the city or county has received and accepted a certification from the district or company that the subdivision or partition is either entirely excluded from the district or company or is included within the district or company for purposes of receiving services and subjecting the subdivision or partition to the fees and other charges of the district or company. FINDING: Staff recommends the Hearings Officer include this requirement as a condition of any approval. 3. ORS 92.185 Reconfiguration of Lots or Parcels and Public Easements; Vacation; Notice; Utility Easements. The act of replatting shall allow the reconfiguration of lots or parcels and public easements within a recorded plat. Except as provided in subsection (5) of this section, upon approval by the reviewing agency or body as derined in ORS 92.180, replats will act to vacate the platted lots or parcels and easements within the replat area with the following conditions: (1) A replat, as defined in ORS 92.010 shall apply only to a recorded plat. FINDING: The applicant concede that this is a replat. 45 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision (2) Notice shall be provided as described in ORS 92.225 (4) when the replat is replatting all of an undeveloped subdivision as defined in ORS 92.225. (3) Notice, consistent with the governing body of a city or county approval of a tentative plan of a subdivision plat, shall be provided by the governing body to the owners of property adjacent to the exterior boundaries of the tentative subdivision replat. FINDING: Notice was provided by the County to the owners of property adjacent to the exterior boundaries of the Snow Creek Ranch Replat subdivision plus 750 feet, to avoid the possibility of under -notice required by this provision. (4) When a utility easement is proposed to be realigned, reduced in width or omitted by a replat, all affected utility companies or public agencies shall be notified, consistent with a governing body's notice to owners of property contiguous to the proposed plat. Any utility company that desires to maintain an easement subject to vacation under this section must notify the governing body in writing within 14 days of the mailing or other service of the notice. FINDING: It appears that no utility easement is proposed to be realigned, reduced in width or omitted by this replat. (5) A replat shall not serve to vacate any public street or road. FINDING: This proposal does not include vacation of any public street or road. (6) A replat shall comply with all subdivision provisions of this chapter and all applicable ordinances and regulations adopted under this chapter. FINDING: Staff finds that Deschutes County Title 17 was adopted under ORS 92 and applicable criteria are addressed below. Staff is uncertain of the scope of other ORS 92 provision that require compliance under this statute. Staff addresses 92.090 above, as this scope of analysis matches prior County practice. Staff requests that the Hearings Officer make clear findings on the applicability of any other provision of ORS 92. No party has identified any other applicable provision. Given that I am denying this application, it may be that other standards may apply to a future application. Section 17.08.030, Definitions Generally. "Replat" means the act of platting the lots, parcels and easements in a recorded subdivision or partition plat to achieve a reconfiguration of the existing subdivision or partition plat or to increase or decrease the number of lots in the subdivision. FINDING: As discussed above, the applicant now concedes that this is a replat and I concur. "Series partitioned lands" and "series partition" mean a series of partitions of land resulting in the creation of four or more parcels over a period of more than one calendar year. 46 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision FINDING: As discussed above, I find that this is not a series partition, and no one argued otherwise. IV. CONCLUSION Based on the findings above, the three applications are denied. Should this decision be appealed and overturned, I recommend that each of the conditions of approval recommended based on the findings. Done and Dated this 26th day of January 2018 Z�'c'H' % 044"�Z- Dan R. Olsen, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED BY A PARTY OF INTEREST AS PROVIDED IN THE DESCHUTES COUNTY CODE. 47 247 -17 -000863 -MC; 864 -MP; 865 -CU Hearings Officer Decision Community Development Department VUmning OMvion 8+dld1np S&hgt Division EnvlronmenW Sous 01visiae P.O, Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http:j/www.deschutes.org/cd APPEAL APPLICATION FEE: $4327.55 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2 If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision, 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items fisted above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): _Pamalynn and H. Richard Steinfeld Phone: ( 503) 985.9617 Mailing Address: 15685 SW 116th Ave, #261 _ City/State/Zip: Portland, OR 97224 Land Use Application Being Appealed: 247 -17 -000863 -MC, 864 -MP, 865 -CU 16 11 19 101 Property Description: Township 16 Range 11 Section 04 Tax t_ot 804 — { Appellant's Signature: _t``� ��-\—~� �..'`' y .. -•- �"�e'+'?�ac'�- i.c r` ut EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDt A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services Perf6nned with Pride NOTICE OF APPEAL 1. The Hearings Officer erred by not finding that the opposition's argument, that File No. MC972, the 1997 modification approval, required the recording of a second deed restriction was a collateral attack on the 2000 nonfarm partition approval and the subsequent building permits issued for TL 16-11-04-811. 2. The Hearings Office erred in requiring a secondary access from Hwy 20 or a denial of such access by ODOT. The applicant demonstrated in the public hearing that, in an emergency, a secondary access could occur across TLs 16-11-09-100, 16-11-10-301 & 300 to Innes Market Rd. Although this is not legal access for daily trips, this is a paved route that could be used in emergencies. 3. The Hearings Officer erred in finding that the applicants argued that it was the original subdivision owner, Reed, that has the obligation to include the 1997 deed restriction in the the CC&Rs. The applicants made no such argument. The argument was that, by not requiring an additional deed restriction in 2000, the county accepted the 1995 deed restriction/CC&R as sufficient and that decision cannot now be collaterally attacked. Because no one appealed the county's approval of the recording of the partition plat in 2001 and no one appealed the county's subsequent issuance of building permits, which LUBA previously found to be land use decisions, for TL 811, to require such a deed restriction 17 years later is a collateral attack on those prior approvals. 4. In the alternative to the collateral attack finding, because the recording of a deed restriction is an ministerial act, the Hearings Officer erred in merely conditioning the approval on the applicants recording a new deed restriction before the remainder of the modification of condition decision is effective. As stated in the public hearing, the applicants could easily record such a deed restriction immediately and have complied with any and all conditions of approval. The applicants will record such a deed restriction within the next few days. 5. The Hearings Officer erred in defining "desirable" in DCC 22.36.040(B) as what is desirable to the immediately surrounding property owners. Defining the word in the code provision that way results in any adjacent property owners being able to stop all modification applications by merely stating they don't want such a modification. The word "desirable" should consider the area as a whole, in this case the study area as a whole and the general policies of the county. Because the general policies of the county are to allow nonfarm dwellings per the 2001 change to ORS 215.263(5), Implemented in ORS DCC 18.16.055, and this application meets the nonfarm partition criteria of allowing such a dwelling while still maintaining farming activities in the area, allowing this property owner to modify a prior condition of approval to take advantage of the 2001 change is desirable to the county. Thus, "desirable" should be defined as to what is desirable to the county and what is desirable to specific property owners. 6. The Hearings Officer erred in not finding that the modification of the condition of approval could be confined to just the applicants' property. The Hearings Officer found that, since the adjacent property owners have not expressed a desire to further divide their properties, therefore, it is not "desirable" to allow the applicants to take advantage of the 2001 statutory and county code provisions for nonfarm dwelling partitions. Applying the condition modification to just the applicants, then would solve the "desirable" language for the adjacent property owners. If they do not want to take advantage of the applicant's proposed change, then, this condition modification request would not be applicable to the adjacent property owners. (This page may be photocopied if additional space is needed.) NOTICE OF APPEAL 7. The Hearings Officer erred in finding that the proposed condition of approval is a substantially new proposal. The original subdivision proposal was already modified in 1997 to allow nonfarm partitions to take advantage of new legislation. Only 3 partitions were recorded at the time. Once the statute was changed in 2001, that locked in the subdivision lots to only those 3 lots being able to take advantage of the new legislation. None of the other lots in the subdivision would be able to have 2 nonfarm parcels because the remaining 4 parents parcels never took advantage of the 1997 condition modification. Because the application can meet the nonfarm partition criteria and still maintain the farming in the area that the original proposal, as amended in 1997, sought to protect, adding this one or possibly two additional nonfarm partition is not substantially a new proposal. 8. The Hearings Officer erred in finding that allowing the condition modification "open the door to a fundamental change in the nature of the subdivision and removes the protections that formed the central basis for approving the lots in the first place." The Hearings Officer found that the applicant's proposal would meet the nonfarm partition criteria. The fundamental protections for the original subdivisions was the protection of farmland. If the nonfarm partition did not still protect farmland the Hearings Officer could not have found the nonfarm partition to have met the criteria because protecting farmland is also a fundamental basis for approving nonfarm partitions. Therefore, Hearings Officer's findings are inconsistent. The Hearings Officer cannot find that proposal does not have significant impacts on the surrounding area for purposes of a nonfarm partition criteria but find that it does have significant impacts for a condition modification. 9 The Hearings Officer erred in requiring a condition of approval stating the requirements of DCC 17.22.020(A)(7). The applicants submitted with their application an e-mail from the Watermaster's office that he already reviewed the proposal and that no water rights would be affected by the nonfarm partition. 10. The Hearings Officer erred in finding that the existing condition of approval prohibiting additional partitioning "remains in place." Whether or not that condition remains in place is fact to be determined outside the jurisdiction of the county. 11. The Hearings Officer erred in finding that compliance with DCC 17.36.260 cannot be found to be met with a condition of approval. As stated previously, the applicant already pointed out that alternative for emergency vehicles exists. Addiitonally, this is a ministerial requirement. Either the applicants can provide a 2nd access point or they can't. Also, the criteria is "whenever possible" provide a 2nd access. Thus, if the applicants can submit a letter at the time of final plat that ODOT will not allow an emergency access to Hwy 20, based on the record, it's unambiguously not possible to provide (This page may be photocopied if additional space is needed.) a second access point. No party argued otherwise. Thus, this could be a condition of approval for the final plat. NOTICE OF APPEAL The applicants request the Board of County Commissioners hear this appeal as a limited de novo hearing for purposes of placing into evidence a copy of the recorded deed restriction and arguing its effect. The Commissioners could also include in the limited de novo hearing evidence from ODOT that a 2nd emergency access to Hwy 20 is either allowed or not. The Commissionwer could, however, just condition the approval on obtaining such a letter. The remainde rof the issues could be heard as an "on the record" hearing with a review of the record already submitted and a review of legal arguments provided on appeal by the parties. (This page may be photocopied if additional space is needed.) Snow Creek Modification Locator Figure