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2018-111-Minutes for Meeting February 28,2018 Recorded 3/22/2018Recorded in Deschutes County CJ2018-111 Nancy Blankenship, County Clerk Commissioners' Journal 03/22/2018 4:26:30 PM iaq�M � tf� t�,}'y ;! r ' f r' 2018-111 — -- — - — - — -- - —•- Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Wednesday, February 28, 2018 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Assistant. No representatives of the media were in attendance. CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: Tammy Threlkeld lives on Alfala Market Road. She explained she has done research over the past year and has not found any benefit to marijuana. Ms. Threlkeld reported on the high amount of individuals looking for medical care due to the side effects of marijuana and this reflects back onto the residents and the health of our community. She requests the Board to weigh out the ramifications in the long run verses the money that is coming in. She stated she has the right to a Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 1 of 9 safe and healthy environment and looks to the Board to provide that to Deschutes County residents. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner Baney requested to pull Item 5 for revisions and Item 2 for discussion. BANEY: Move approval. HENDERSON: Second. VOTE: BANEY: Yes. HENDERSON: Yes. DEBONE: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Board Signature of Document No. 2018-114, Approval of Quitclaim Deed Releasing a Mineral/Gravel Right Reservation 2. Consideration of Board Signature of Document No. 2018-115, Approval of Bargain and Sale Deed to City of La Pine for Donation of Industrial Lot 3. Consideration of Letter of Re -Appointment to Carolyn Chase to the Bend Cascade View Estates Special Road District 4. Approval of Minutes of the January 29, 2018 Work Session 5. Approval of Minutes of the January 30, 2018 Board Retreat 6. Approval of Minutes of the January 31, 2018 Business Meeting 7. Approval of Minutes of the February 5, 2018 Business Meeting 8. Approval of Minutes of the February 21, 2018 Business Meeting ACTION ITEMS Consent Agenda Item No. 2 as pulled for discussion: Consideration of Board Signature of Document No. 2018-115, Approval of Bargain and Sale Deed to City of La Pine for Donation of Industrial Lot Presenting this item were James Lewis, Property Management Specialist, City of La Pine Mayor Dennis Scott, and Sunriver / La Pine area Economic Development Director Ryan Culp. Mr. Lewis gave history of this parcel of land. Commissioner Baney stated the City of La Pine has established the core components of a city and we are in that situation of turning this land over to the rightful owner as this land was meant for the south county community and the greater La Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 2 of 9 Pine area. Commissioner DeBone reviewed the history of property in La Pine as the city has developed. Mayor Scott spoke on the City staff and commented on the progress in La Pine. Mayor Scott commented on the decision of Deschutes County Commissioners to place restrictions on the allowable type of business uses in this deed conveyance. He asserted that the City is capable of monitoring its lands and the types of businesses to consider for this piece of property. The Board had been inclined to not allow any business that violates federal law, suggesting marijuana related business. The Board spoke on the information that was before them during the initial discussion at the Work Session and the reasons behind their inclusion of that restriction in the agreement. Mr. Culp spoke on the encouragement of growth and development in South County. Commissioner DeBone spoke on this industry and supporting the city jurisdiction is the path to go. Commissioner Baney explained there was a misunderstanding with the original request; she is supportive of the economic vitality of the community of La Pine. Commissioner Henderson wondered if this restriction was discussed at a City Council meeting as this restriction was placed due to the discussion of the need of diversity when the request was initially presented to the Board. Mayor Scott stated that he had discussed the issue with staff and agreed that if there was a restriction placed the City might not accept the land donation. Commissioner Baney struggles with the language of donating something that is already essentially being held in trust for the community of La Pine and feels with the clarity provided by the Mayor that the County should remove the deed restriction which disallows any business use that violates federal law. BANEY: Move approval of Document No. 2018-115 with the removal of the deed restriction HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried 9. PUBLIC HEARING: Appeal of a Marijuana Production Decision at 25890 Alfalfa Market Road Jacob Ripper, Community Development Department outlined the hearing procedures. There being no disclosed conflicts of interest by the Commissioners and no challenges voiced, Chair DeBone opened the public hearing. Mr. Ripper reported on the application for the marijuana production facility received by PSBS Holdings LLC. Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 3 of 9 Chair DeBone invited the applicant to provide its presentation/testimony. Michael Hughes, representing PSBS Land Holdings summarized the application. Dan Stoller owner of the subject property gave testimony and noted he and his wife purchased the property in 2017 as an investment. Mr. Stoller explained when they were trying to get insurance for the property no one was willing to cover them due to the liability of the horse riding arena located on the property. They were in the position of trying to find a source of income. After learning of the liability issues associated with riding arenas, they learned that a fire house was being built across from the property. The fire sirens spook the horses. The property is deemed an investment property; Stoller does not reside on site, but instead rents the property to PSBS Holdings. Mr. Stoller currently raises hay on the property. The main reason to ask for the exception is the use the existing structure near the property line. Commissioner Baney spoke on the limited soils of farm land value in Deschutes County and we honor that in our community and inquired on the farming of hay on his property. She asks if there was consideration for a condition for his land to continue this commitment of farming the hay on the property. Mr. Stoller has no intent of not maintaining the property. Commissioner Henderson inquired on his principal source of income. Mr. Stoller is retired and breeding cattle and race horses is his primary source and hauls the hay to his property in the valley. Commissioner Henderson inquired on water rights on the property. Mr. Stoller noted the water rights they have are intended for the hay production. Commissioner Henderson inquired if he has planned for response to any complaints for the proposed use on this property. Joey Phelps, CEO of PSBS gave background on the company. PSBS runs a business with a luxury ground transportation business and feels Deschutes County is currently missing the right model for this type of business and expressed the importance of following rules and regulations. Mr. Phelps explained the facility would be structured in a way where the neighbors wouldn't even know it was there. There will be four people maximum on the property. Mr. Phelps feels a horse training facility would bring more traffic than what they propose. Mr. Phelps noted the water rights are going to be honored. They are working on obtaining a water right that may take 12 months and in the meantime will purchase the water. The well for the water rights would be a separate right than the hay irrigation. Commissioner Baney noted the importance of confirming the water rights by way of written verification submitted into the record. There are 37 acres for irrigated pasture, Commissioner Baney asked how many acres would be removed for the new use. Mr. Phelps noted the hay field would continue as is. Mr. Phelps reported on the staff and experience of those in PSBS. Commissioner Henderson inquired on the transportation business. Mr. Phelps categorized as the Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 4 of 9 business as luxury limousine, they own 700 vehicles and employ 650 drivers. Mr. Phelps feels in the future the business plan for the MJ operation will include store fronts. Commissioner Baney inquired of the plans if the Board does not grant the setback variance. Mr. Phelps feels that the variance is the best way to proceed, but if denied will have to change the design plans. Michael Shook is in heavy road construction, bridge building, and general construction. Mr. Shook gave his work experience and is involved in consulting in the marijuana business. Mr. Shook spoke on his experience with odor control regulations and explained the process of scrubbing the air in the facility through charcoal filters. Mr. Shook described the design of the odor control system that is planned with no changes to the outside of the existing building. Mr. Shook has also met with the mechanical engineer on site. Commissioner Baney inquired on his opinion of water usage. Mr. Shook stated the water can be metered and the plants take very little water. Commissioner Baney inquired on enforcement and inspections. Mr. Shook feels it is a good practice to have unannounced inspections as this is a business. Commissioner Henderson noted the need for reports that demonstrate the design and function of the mechanical systems and wondered why that wasn't submitted with the application. Commissioner Henderson inquired on the type of security that will be at this facility. Mr. Shook noted the security will be inside the building and the property will not look like a prison. Mr. Hughes noted his response to the appellant written opposition, indicating that he has articles providing information on carbon filters proposed for this site, noting that these very filters are recommended for chemical and biological attacks. RECESS: At the time of 10:35 a.m., a short recess was taken and the meeting was reconvened at 10:41 a.m. Chair DeBone called for the appellant. Liz Dickson representing Bill Tye, neighboring property owner explained there have been marijuana discussions in the past and because of procedural roles she apologized for the need to repeat information she has presented in the past as each application needs its separate file. Ms. Dickson spoke on the soil classifications/conditions of this property. She presented tax records on the subject property and structural data. She pointed out the inaccurate measurements of the structures listed in the application verses the structure dimensions as noted in the assessor's office records. Ms. Dickson spoke on the proposed land use risks in Deschutes County and commented on the Board's responsibility to promote public health, safety, and welfare and urges Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 5 of 9 them to not make a decision which will violate health, safety, and welfare that the Commissioners were elected to protect. Ms. Dickson has provided copies of maps of the property. Ms. Dickson spoke on the law providing for setbacks and what is being proposed by the applicant. Ms. Dickson reviewed the impacts of marijuana production facilities relative to the Deschutes County Code. Ms. Dickson spoke on the setback and lighting noted in the application. The argument in the application for preservation of the ranch and expansive mountain views the riding arena blocks the mountain views. Ms. Dickson spoke on odor control and the natural remedies that are proposed. The information on noise and privacy shows the applicant is comparing the wrong elements. With regard to access the applicant claims the production facility is better than the riding arena and feels the location is better for impact than a legally constructed structure. Demonstration and proof is not provided for an effective system for odor, noise, or water. Ms. Dickson asserts that the application as submitted is incomplete. Marijuana production is a violation of a federal law. Ms. Dickson spoke on the concerns of the water source. Commissioner Henderson requested a copy of the letter from Central Oregon Irrigation District. Discussion held on the water usage on the property and information provided in the application. Ms. Dickson spoke on the Will Serve letter and power usage for the subject property and asserted that the letter provided is insufficient. The secure waste disposal criteria is briefly referenced in the application. Ms. Dickson spoke on fire risks inevitable for this structure and inquires if the Alfalfa Fire District is equipped to provide response to this type of possible risk event. Ms. Dickson requests the record is open for a minimum of seven days and in her opinion the application is incomplete and the proposed use does not prove compliance with impact. Ms. Dickson asks the Board deny the applications. Bill Tye, the appellant presented additional information to the Board. Mr. Tye explained his qualifications as an engineer, surveyor and farmer. The neighboring properties feel the marijuana production facilities are not compatible with existing farm use in the area. Mr. Tye gave examples of farming and livestock on his property. Mr. Tye spoke on the previous owners that used the horse riding facility and there were no issues or impacts to the neighboring properties. Mr. Tye explained water rights and methods of irrigation. Mr. Tye reviewed history of neighboring property wells. At this time, Chair DeBone asked for public testimony. Patty Jo Waters: Ms. Waters lives in Alfalfa and is a half mile from the subject property. Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 6 of 9 Ms. Waters has grow operations on two sides of her now and doesn't want to see any more. She expressed her concern that there are no limits in place in the County as to how many grows are allowed. Ms. Waters spoke on traffic concerns, driveway access, and activity of people coming and going. She also commented it is not a farm friendly property since she was told she wasn't allowed to come on the property. Stephanie Morales (via Patty Jo Waters): Ms. Morales had to leave the meeting; Ms. Waters stated that Morales asked her to present on her behalf and that Morales also has grows on multiple sides of her property. Ms. Morales provided written questions for Ms. Waters to present as she had a question on insurance because she was able to get insurance on their property with a similar arena facility on the property. Jean Nelsen: lives on Johnson Ranch Road just next door to a grow operation. She stresses she has good neighbors and has nothing against them but asks the Board not to allow any more in the County. Ms. Nelson is a realtor and opined that marijuana grows will affect property value. She commented it will eventually become a county where only cannabis growers live here. Ms. Nelson spoke on Patty's property and it is impacted as a realtor she explained the way her acreage sits, her house is right next door to a grow and that operation is like a factory and can't imagine anyone that wants to live in this County would want that property. Ms. Nelson urges to do what the City of Bend has done with the vacation rentals and decide there is enough. Tammy Threlkeld addressed the fact that Alfalfa has so many grows already and there are many additional applications on file and this will only become a community of marijuana grows. She commented it is not right that marijuana sales are paying for their property taxes. Ms. Threlkeld expressed her concern on the proposed heating system on the property. Ms. Threlkeld has concerns on traffic and with this many grows and one road. She claimed Bend Water Hauling is taking water from Alfalfa Market. Andrew Anderson owns an OLCC licensed farm in the area. Mr. Anderson spoke on facts that can be proved. He reported he smells beer water that is being used to irrigate the fields behind his house and also spoke on the smells of livestock and pesticides. He commented on the inefficiencies of wheel line. Mr. Anderson uses 3,000 gallons of water per day for his grow operation. Mr. Anderson gave his opinion on the spray foam that is proposed for the structure. Oregon Water Resources will be using his property as a test well to review usage and gave his opinion of the decreased level of the water table. Mr. Anderson told the Board asking the owner to have a commitment to farm hay is unreasonable. Mr. Anderson has a concern on pesticides. Mr. Anderson commented on mature canopy size. Mr. Anderson is concerned with the Go Fund Me Account to fund attorneys as they had taken photographs of his property and have made inaccurate statements to raise money. Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 7 of 9 Commissioner Baney asked Mr. Anderson for an opinion on the concentration concern as a business owner. Mr. Anderson stated Deschutes County has the least amount of grows. Commissioner Baney inquired on the specific location of Alfalfa in general. Mr. Anderson inquired if she was asking about a cap on licenses and he is not opposed to that. Commissioner Henderson spoke on the capping as an idea. Mr. Anderson commented this would need to go legislatively and in his opinion it would undoubtedly cause a war. Mr. Hughes provided rebuttal. His clients take these comments serious and they want to operate the operation so that no one knows they are there. He assures the Board his clients are not going to use their luxury transportation service to smuggle marijuana around the country (in response to comments made by attorney Dickson). Mr. Hughes commented on livability and assures the Board his clients are cognizant of that. Mr. Hughes showed on the map of the location of structures and how the use is designed to not cause new or additional impacts. Mr. Hughes asked the Board to approve the application. Commissioner Baney noted the Board needs proof in writing on the detail of water usage and utility resources. Mr. Hughes responded the applicant is working with an electrical contractor regarding how much electricity they are using and has to happen after the fact. Commissioner Baney noted the record as it is today does not have the required level of specificity. Commissioner Baney also requested detail in writing on the heating system in the building. Commissioner Baney also inquired on property access. Mr. Hughes spoke on solar powered gates and is a COID access point. Commissioner Henderson noted the concern with no exhaust in the building with a propane heating system. Mr. Hughes noted there are doors and overhead doors to allow for air flow. Commissioner Baney noted she has compiled a list of items on concentration, access, parking and traffic and sees the need to verify that there is room to turn around as a point of consideration to verify. Discussion held on the record period. The first deadline would be March 7 for new evidence submitted, then March 14 for rebuttal, and final 7 days would have a deadline of March 21 for applicant's final statement. The proposed deliberation is March 28th. The request to the applicant is to extend to the 150th day of April 19th (by 21 days) and Mr. Hughes asked to confer with his client. The client agreed. Chair DeBone closed the oral portion of the hearing. Minutes of Board of Commissioners' Business Meeting February 28, 2018 Page 8 of 9 OTHER ITEMS: None were offered. EV131119011kll Being no further items to come before the Board, the meeting was adjourned at 12:58 p.m. DATED this �_ Day of444_ 2018 for the Deschutes County Board of Commissioners. ATTEST: 4�- Recording Secretary Minutes of Board of Commissioners' Business Meeting Page 9 of 9 Anthony DeBone, Chair Philip G. nder on, Vice Chair r Tammy B ney, C#Tnissioner February 28, 2018 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 9:00 AM, WEDNESDAY, FEBRUARY 28, 2018 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. CONSENT AGENDA Consideration of Board Signature of Document No. 2018-114, Approval of Quitclaim Deed Releasing a Mineral/Gravel Right Reservation 2. Consideration of Board Signature of Document No. 2018-115, Approval of Bargain and Sale Deed to City of La Pine for Donation of Industrial Lot 3. Consideration of Letter of Re -Appointment to Carolyn Chase to the Bend Cascade View Estates Special Road District Board of Commissioners Business Meeting Agenda Wednesday, February 28, 2018 Page 1 of 3 4. Approval of Minutes of the January 29, 2018 Work Session 5. Approval of Minutes of the January 30, 2018 Board Retreat 6. Approval of Minutes of the January 31, 2018 Business Meeting 7. Approval of Minutes of the February 5, 2018 Business Meeting 8. Approval of Minutes of the February 21, 2018 Business Meeting ACTION ITEMS 9. PUBLIC HEARING: Appeal of a Marijuana Production Decision at 25890 Alfalfa Market Road - Jacob Ripper, Associate Planner OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public, however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Board of Commissioners Business Meeting Agenda Wednesday, February 28, 2018 Page 2 of 3 ®® Deschutes County encourages persons with disabilities to participate in all programs and o® activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Business Meeting Agenda Wednesday, February 28, 2018 Page 3 of 3 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of February 28, 2018 DATE: February 21, 2018 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: PUBLIC HEARING: Appeal of a Marijuana Production Decision at 25890 Alfalfa Market Road RECOMMENDATION & ACTION REQUESTED: Conduct a public hearing and render a decision to uphold the decision, uphold the decision with Board modifications, or deny the application. BACKGROUND AND POLICY IMPLICATIONS: PSBS Holdings LLC received approval for a marijuana production facility in the EFU zone with a maximum of 10,000 square feet of mature plant canopy. The applicant also requested setback exception from the eastern property line and the closest dwelling to the east. An appeal was filed and 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. FISCAL IMPLICATIONS: None. ATTENDANCE: Jacob Ripper, Associate Planner TO: FROM: HEARING DATE RE: APPLICANT: OWNER: APPLICANT'S ATTORNEY: APPELLANT: APPELLANT'S ATTORNEY: Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 47708-6005 Phone: (541) 888-6575 Fax: (541) 385-1764 http://wvvw.deschutes.org/cd STAFF MEMORANDUM Board of County Commissioners Jacob Ripper, Associate Planner February 28, 2018 Public Hearing on an appeal of an Administrative Determination for Marijuana Production. File N2 247-18-000049-A (247 -17 -000831 -AD). PSBS Holdings LLC Daniel & Mary Stoller Michael R. Hughes Tye Cattle Co., c/o Bill Tye 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. 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 Services Perfi)rured with Pride 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: 1. 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 Ne 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 Ns 2017-718, Planning Division File Na 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(6)(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 Bakerdecision4, 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 ° BOCC Document Ne 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(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: 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. 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 s BOCC Document Ns 2017-294, Planning Division File Ns 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 No 2017-773, Planning Division File Ns 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, 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. 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)(15). 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 OL CC 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 11 247 -17 -000831 -AD 25890 ALFALFA MARKET RD, BEND AL HORS ELL RD z or z z x 0 OGLES RD Deschutes County GIS, Sources: Esri, USGS, NOAA Mailing Date: i w Friday, January 05, 2018 Community Development Department Planning Division Suilding Safety Division Environmental Soils Division P.D. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 380-6575 Fax, (541) 385-1764 http:/, h-v"v.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 I. 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. Qnalitft SerWces Pc)forined 7tlith Pi -isle 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 for a 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) 4756 — Cannabis Regulation prohibits public land use processes 4. DCC 18.116.330 violates "reasonable" local time, place, and manner conditions allowed by ORS 4756.340 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(6) 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, 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, 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: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: The applicant has proposed a maximum of 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 1 247 -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: 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(8)(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. 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. 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 31S). 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 W 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 OLCC 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(B)(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)(o), 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: L 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(6)(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. C. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. 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. 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. 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 0 0 0 0 0 0 0 0 0 0 0 0 0 a a a a a a a a a a a a a W00 00 00 00 00 W 00 DO 00 00 op DO 0 i i � i i i V c -I r -I c -I ci rl t -i ci t -i c -I rl ci a -i rl a CL 0 0 0 0 0 0 0 0 0 0 0 0 0 > w w w w ti w w w ti w ti w w Q1 c -I 00r - O O 0 0 0 0 0 0 0 0 0 F r n F, r ^ n n n n r 07 0) Ol 0) Ol Ql 0) Ol 0) 0) Ol = O = = = cr- = = = = = I= N 0,600000000000 c p c ,� c c c Z c c c c c + aJ 0) �^ a) aJ N w aJ a) (J a) aJ u m m in m m m m m m m m m 0 -a �j s 4 s s s co u a) v u u C) c Y c c c ,C (p O L [6 C6 (6 w c c c > Ln N aj J Ln Y Ln o O ci a) c L _ a2 {- l0 s M M a 4- Ln s (6 s s a vi X O Ln o a o in 0 00 Ln O M O Ln O Ln Ln o M o L m m m N n m m m N m n w w _0 00 00 m w O m m m m m O m -0 Vl O O w N O w w Un N w M N M N-4 a r -I W N N N N W N W W _Q a1 s CL a a� O o?� 0 O s u N V Y U 4� G 4 O O m u a) v L O co m i C cO L i G a) ti ,O J (� 41 s O z s c L Ln L uc0 = U cu N O!t c m 0 coo (z o 1= m v z 0 o = @ M =3-0 c a) w a1 z > u -FuC 3 °�° rca U a� `v � O v `o wO o_ 0 O l7 0 a 0c o- - cf w a- Community Development Department r� F%nninp Division 800ding Sdrty Vivision EnvitonmOmai 5011* 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 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. cro Bill Tye Trustee of the William R Tye Revocable Living Trust Phone: ( 541 ) 408-3646 Mailing Address: 25840 Alfalfa Market Rd. City/State/Zip: Bend, OR 97701 Land Use Application Being Appealed: 247 17 D00831 -Ara owner Stotler Applicant PSBS Holdings LLS= Property Description: Township 17 Range_ Section 22 Tax Lot 1200 Appellant's Signature: attached Letter of Authorization) EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services Performed zvith Pride NOTICE OF APPEAL See attached Statement. (This page may be photocopied if additional space is needed.) 440 5W 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 "Fye 25840 Alfalfa Market Rd. Bend, OR 97701 541-408-3646 APPELLANT'S Elizabeth Dickson ATTORNEY: Dickson Hatfield, LLC Attorney for Appellant/Property Owner 400 SW Bluff'Drive, Suite 240 Bond, OR 97702 541-585-2229 eadicksoti(�i.?dicksoiiiiattield.cotii STAFF REVIEWER: Jacob Ripper. Assistant Planner Deschutes County Community Development Dept, 117 NW Lafayette Ave, Bend, OR 97701 REQUEST: Appellant requests de novo Appeal ot'Deschutes County Administrative Determination, File No. 247 -17 -000831 -AD, -AD, Owner: Stoller; Applicant: I'SBS Holdings LLC; Attorney for Applicant: Michael R. Hughes SURIECT PROPERTY: Assessor's Map Designation Township 17S, Range 14E, Section 212, Tax Lot 1200, commonly referenced as 25890 Alfalfa Market Road, Bend, Oregon 97701 "A] (A). - NOTICE 01'AITHAL OF247-17-00093) I -A D I. LC 1')T( Page I of 12 Z' INTRODI)CTION Applicant PS13S Holdings LLC ("I'SBS") and property owner Daniel & Mary Stoller ("Stoller") have requested approval to establish a marijuana production facility in the 1;FU Zone with a maximum of 10,000 square feet of mature plant canopy and also to convert permitted uses within two existing buildings on the Subject property. The two buildings, together 14,358 square feet, are proposed to be converted from Mary and arena to marijuana grow warehouses. This request has been approved administratively by Jacob Ripper, Associate Planner, by Findings and Decision, on Friday, January 5, 2018. This appeal is timely filed on January 17, 2018. Appellant Bill Tye has received notice of this Administrative Determination, listed in the notice as "Willaim R The Rev Liv Trust" [sic] by agent Tye, William R Ttee. Bill "Fye is legally entitled to appeal this decision. Appellant Bill Tye states that the application should not be, approved for these reasons: • Lxisting 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; e Odor is not controlled, where required methods are not reported or demonstrated; • Noise is not controlled, where necessary proof is not made; • ]rights are not shielded, where appropriate specifics are not provided; 8 Water is derived from an unpermitted source.; and e Water use as proposed does not promote public health, safety, and general welfare. County criteria] 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 in)pacts, though the County has thus far interpreted such criteria as inapplicable. We ask that the County reconsider this interpretation in light of the extreme degradation of the transportation system in the Alfalfa Community, where such degradation directly correlates to the increase of pot farms in the area. 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. Compliance 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. rYt C:A I III-, CO. - NOI*IC'1 oI,'AI'PI;AL. 01-' 247 -17 -0(]0x31 -AL) -- S'1'01.,r.i_''lt/1'S13S I101,I)INt3S I,LC 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 STA TUTEE ORS 47513.340 — CONTROI., AND REGULATION OF MARIJUANA ACT STA TE, WIDE PLANNING GOAL 12 TRANSPORTATION OREGON ADMINISTRA TIVE RIJLES OAR 660-12 — TRANSPORTATION PLANNING RULE DESCHUTES COUNTY COMPREHE-N,'Y1VL,'PLAN DESCHUTES COUNTY TRANSPORTATION SYSTEM PLAN DESMUTF-5 COUNTY CODE TITLE 18 — DESCHUTES COUNTY ZONING ORDINANCE TITLE 22 — DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE 111. COMPLIANCE WITH APPLICABLE CRITERIA & STANDARDS OREGON REVISED STA TUTEV 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 he 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 anicrid]-itle 19, and specifically added DCC 18.116.33 30 to allow the cultivation, processing, and sale of marijuana products under specific conditions. In so doing, the Board presumably inadvertently allowed grows to be approved without analysis of traffic impacts. The County's Comprehensive Plan ("Comp Plan"), applying public health and safety laws, requires that traffic impacts be monitored and mitigated where necessary. Failure to assess the traffic impacts of a new land use is inconsistent with the County's Comp Plan,, specifically that chapter addressing its transportation system. 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 INF CA1111"CO, NOT10-car" AITI-Al OF 247 -17 -0008,11 -AF)— Page: 3 ol'12 Board to withhold Further approval pending evaluation of this application's impacts on the current road system in the. Alfalfa area, as is its right under applicable County Code. S TA TF. WIDE PLA NAIIN G COAL 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 be -fore approving the instant application, where the County Comprehensive Plan requires monitoring of and mitigation of impacts to the system. OREGON ADMINISTRA HVE'R ULES OAR 660-12 - TRANSPORTATION PLANNING RULE OAR 660-12-005(32) (Transportation System Plans are based onj 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 C011-111IL1111ty. 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. DI-,',VCI,tUTF,,'V COUNTY COMPREHE N.51 VE PLAN DESCHUTES COUNTY 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. The instant application will increase trips to and frorn the site. Now trips will be generated by many activities, including but not limited to: 0 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 TY1`(..'AY11TCO.- NO'1'1(']".(.)I-'AI'I'I"Al.01�247-17-000831-A1) Page 4 ol'12 • workers to water, fertilize, provide insect and bacterial control, prune, harvest, package and prepare product shipments, • inspections by officials, s product: inspection by buyers, • 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 trav=el over the Alfalfa community 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. 'hhe County's Comprehensive flan must be adhered to, according to CARS 4758.340(2), as quoted above. The Comp flan includes theTransportation System flan (""I`SP" ), 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 bothering to ask for an estimate ofthe 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. RESPONSE: Deschutes County has presumably inadvertently adopted a code that does not require this evaluation for marijuana production applications in the, I-A�U Lone. In doing so. the County is considering such applications in direct contradiction to this policy. Here. no management ofthe development process to handle impacts is requircd. As a result Of this omission in the. 1XI"C% the instant application is being considered in violation of Policy 4.6 ofthe C'ounty's code. This application is properly denied. The C:ounty's TSP also addresses degradation, separate from the analysis requirement above. It reads as follows: Goal 10: Maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system. RL,SPONSI : Appellant Bill Tye and neighbors have witnesses significant traffic loads on Alfalfa- Market lfalfaMarket 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 terns. d -"his degradation is a direct result ofthe new applications Paoe 5 of, 12 approved and built in Alfalfa, and it violates TSI' Goal 10. Again, violation of theTSP is violation of the Comp Plan, which violates OR.S 475B.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 Comp Plan, or be denied for failure to mitigate impacts to the County's Traffic System. It is interesting to note that when Deschutes County adopted Ordinance No. 2016-01-5, 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 'I'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 call be met. DF,.VC1`-1U E,5 COUNTY CODE DCC; TITh, 18- DESCHUTES COUNTY ZONING ORDINANCE DCC Chapter 18.04 TITLE, PURPOSE, ANI) DEFINITIONS IONS 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. This is well established in state and federal law as well. In this instance, the Board has decided to try allowing marijuana grows in I)eSehUtes County, and watch for the effects of .such use. Decent public forums held as part of the County's evaluation of marijuana production impacts in our communities revealed story after story of families unable to open windows to bring in fresh air, children restricted from playing outside, noise so loud that neighbors could not enjoy outdoor areas of their homes, and more serious impacts such as dry wells, heavy traffic, and threatening persons attracted to communities not accustomed to such persons, All of these concerns are examples of direct impacts on public health, safety, and welfare. Lack of clean air.. inability to erljoy the outdoors, and the threats to clean water and safe roads are real and concrete challenges to these most basic concerns, and it is the community's right to enjoy clean wells and safe roads. We ask this Board to protect the general Conlin Lill ity's health, safCty, INIJ.'Al Il FIC?. No I7l'L()I A1'I'l-A].OI-X47-17-0008'11-flip—si(}LLE;R?�'4I3 iiC1C_f3l�iSS lJa;' Page 6 oto 1.2 and welfare, and deny this application. It does nothing to enhance these values, and only harms the community the Board serves. DCC Chapter 18.116 SUPP1.I MENT'ARY PRO'V'ISIONS DCC Section 18.116.330. Marijuana Production, Processiniz, and Retailin14 kk* 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: 1.00 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. RESPONSE: The instant application does not comply with either standards a or h above. Application asks that an exception be made, under standard c above, because using the existing buildings will afford benefits ofvisual, odor, and noise impacts. Applicant misreads the exception standard. The reduction to requirements is only allowed where the locotion of the fircilify will improve these impacts. The exception says nothing about the nature of the strl.lcture afforded by the location. Under Applicant's reasoning, a scaled 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. This misconstrues the plain language of the exception. This application does not qualify for the exception. It does not satisfy the setbacks requirement. ']'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. ( Yk CAI 11+ CO. N101It k OFA ITI-Al, OF :x.47 -17 -00083I -AU - S 1'0J _.FR/P4135 13OL1: IN(IS 11C C llagc 7 of 12 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 related for the required CFM; or ii. Utilize an alternative method or technology to achieve equal or to greater odor mitigation than provided by (.l) 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 Mate 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 "T`he 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 non-existent.. "Phis is in sharp contrast to non -sealed greenhouse production, which will emanate 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 Ixhibii 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 can counter such effect. Again,. this is offered without necessary proof. This standard essentially relics 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 following site-specific conditions: • In these 2 structures, including necessary specific alterations • With these climate conditions ® Under these grow conditions • Growing these plants (applicant claims they will grow 10,000 sf of mature canopy plants). TYI-J'AFILECO. NOTICE" OFA 1'111;ALOF?17-17-000831-AD Sft)I.I.F;RtI'S13ti)IULI_)Tti�(�SLLC:` Parc- 8 of 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 31) 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 (if DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. RFJSPONSE: Applicant's noise control assertions, offered on Page 9 of the Burden of Proof and supplemented, again make a circular argument: Let Lis 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 allowance, not noise or odor compliance. Applicant has not proven compliance with noise control requircincrits with its "moving* HVAC to the west side" argument either. Stich an assertion is without proof of the conclusion offered. The instant application should not be approved. 13. Water. The applicant shall provide: * * th 1). A statement that water is supplied from a public or private water provider, along with the name and contact information of the water providet ..... 1Z.FSPONISE: Applicant proposes to use 37 acres of surface water from COID, by claiming it will be able to make a temporary transfer oftlic 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. Applicant is not offering an application with water supply sufficiently assured to warrant approval. The instant application is properly denied. `J1T CATFLF C'O, - Nt) FIC12 OF ANTAt OF247-17-000831-AD S'10H.FR./PSPS HOLDINGS H.0 Page 9 of 12 1:55. 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, COID's 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 OL( --,'C licensee or OHA Person Responsible for the Grow Site (PRMG). RESPONSE: No proposal specifics are offered to show what Applicant proposes will be constructed. "Phis is insufficient information to meet the standard of this criterion. DCC TITLE 22 - DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE DCC Chapter 22.32 APPEALS DCC Section 22.32.010. Who MILAIMEA C. The following may file an appeal: *Xk* 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 D. 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 of Appeal 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. RESPONNS]": This statement is made to comply with this requirement, so is satisfied. I Y1 CA I TIT . 0), N A ITFIA I, OF 247-17-O(W83) I -AD S( 0i'l-FIRTS135I I OLDI\ (is 1, 'C lla'ge 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: FL111 Record responses to Board questions and concerns are best supplied by opening the Record, and we request saine here, DCC Section 22.32.024. Transcript Rectuirement A. Except as otherwise provided in DCC 22.32.024, appellants shall provide a complete transcript of any hearing appealed from, from recorded magnetic tapes provided by the Planning Division. RESPONSE: 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. Unless 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. RESPONSE: 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 proper]), excused. See above IV. CONCLUSION TY I , CM I I J � , CO. 11age t1 of, 12 Appellant asks that the Board hear this appeal, and hears it de nava. Appellant further asks that this Board deny the instant application for its failure to comply with applicable law, as detailed herein. Submitted this 17111 day of January, 2018, by: i r. ,r I'Ji;�abcth A. Dickson Attorney for Appellant EAD/mis Cc: Client TYE CATTLE CO. - NOTICE OP APPEAL OF 247 -17 -000831 -AD — STOLLERIPSBS 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, NWA- 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 marihuana processor. c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; Chapter 18.116 (2/2017) iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light - emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15. 10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non -rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. Chapter 18.116 (2/2017) b. Fencing shall be fmished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or c. Proof from the Oregon Water Resources 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 MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; Chapter 18.116 (2/2017) ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(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-thru window service. 4. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA registrant. 5. Minors. No person under the age of 21 shall be permitted to be present in the building, or portion thereof, occupied by the marijuana retailer, except as allowed by state law. 6. Co-Location of Related Activities and Uses. Marijuana and tobacco products shall not be smoked, ingested, or otherwise consumed in the building space occupied by the marijuana retailer. In addition, marijuana retailing shall not be co-located on the same lot or parcel or within the same building with any marijuana social club or marijuana smoking club. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1,000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot Chapter 18.116 (2/2017) appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed family child care which occurs at or in residential structures; iv. A youth activity center; v. National monuments and state parks; and vi. Any other marijuana retail facility licensed by the OLCC or marijuana dispensary registered with the OHA. b. For purposes of DCC 18.116.330(B)(7), distance shall be measured from the lot line of the affected property to the closest point of the building space occupied by the marijuana retailer. For purposes of DCC 18.116.330(B)(7)(a)( vi), distance shall be measured from the closest point of the building space occupied by one marijuana retailer to the closest point of the building space occupied by the other marijuana retailer. c. A change in use to another property to a use identified in DCC 18.116.330(B)(7), after a marijuana retailer has been licensed by or registered with the State of Oregon shall not result in the marijuana retailer being in violation of DCC 18.116.330(B)(7). D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). (Ord. 2016-015 § 10, 2016) 18.116.340. Marijuana Production Registered by the Oregon Health Authority (ORA) Chapter 18.116 (2/2017) i= 1 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend: Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://,,vw v.deschutes.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 Perfc)rmeri ivith 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. I 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." z Policy 1.1(b) "Review of future large development and transportation projects that significantly affect the County's transportation system." s 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 $18,071.6 The application is consistent with and complies with TSP Goal 1 and its supporting review criteria of DCC 18.116.310. 3. Consistency with TSP Goal 4 On Pages 3-4 the appellant claims the existing transportation network is insufficient and congested with the proposed use exacerbating Alfalfa Market Road. More specifically, the appellant claims TSP Goal 4 is not met as it requires developments to provide transportation improvements commensurate with the development's impacts .7 Staff notes when the TSP modeled the County's road system for 2030 volumes, Alfalfa Market Road was not found to be over capacity or nearing capacity. The Ione exception was the intersection of Alfalfa Market -Neff roads/Powell Butte Highway. The County, however, constructed a rural roundabout there, which opened July 29, 2016, thus mitigating that intersection. The improved intersection now meets County standards. The County's performance standard for a roadway segment is Level of Service (LOS) D, which equates to up to 9,600 average daily traffic (ADT). Appellant claims Alfalfa Market Road is experiencing extreme congestion and residents are at significant hazard. Appellant provides no factual data to support this claim. Staff notes the most recent count of average daily traffic (ADT) for Alfalfa Market Road is 2,948 (ADT) in 2015 or roughly 31 percent capacity.$ 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 fora 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) 47513.340. 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. 5 September 22, 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: I 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 12,273 SF and the smaller building is approximately 2,085 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. o 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. Odor Control Methodology: The Deschutes County code DCC 18.116.330(8)(10) reads: Odor. As used in DCC 18.116.330(8)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: 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. 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" HO (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 code 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" HO (925 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 Methodology: The Deschutes County code DCC 18.116.330(B)(11)(a) reads: Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 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 20 tons. Regarding noise control, (DCC18.116,330(B)(11)(a) the following 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) measured at any property line between 10:00 p.m. and 7:00 a.m. the following 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. 3. 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, Rob James, P.E. t�j 6St08PE `\V w K711 ''1'111-1 i ~� -�:__N EXPIRES 6/30/19 11/16/2017 16:26 15413890721 BEND WATER HAULING PAGE 01/01 22166 Nelson Road Bend, OR 97701-9790 Office (541) 352-0759 11/16/2017 PSBS Holdings, LLC 25890 Alfalfa:. Mkt Rd Bend, Or. 97701. RE: Will Serve Letter PSBS Holdings, LLC have requested that Bend. Water Hauling, LLC deliver Potable water to the address mentioned above. We have set up an account to deliver to this location 15,000 gallons a. week for agricultural and fanning use. If you have a.ny questions or concerns please contact us at tl 0-Mice. Sincerely, Kimberlee Nunez Dispatcher/Member • � M IM AA N III ■ 1 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 V Y� EARN BARN RESIDENGE Enlarged Plan ea ----- ------ GROW SITE Ucl� 4 Tn 01 1w .moi rllzac 25a9O ALFALFA MARKET ROAD BEND, OR 97701 Pr"— rTr MXE "WK 761 n m 9� ~ SITESite Plan GROOnto: 0/18/201r MARKETILV6120 25B90 ALFALFABEND, OR 97701 ! . ' | � 9� ~ SITESite Plan GROOnto: 0/18/201r MARKETILV6120 25B90 ALFALFABEND, OR 97701 N N, SEC Site Plan TAXL0T, 771422000,2O 00 iU GROW SITE TOKT SHiP , PMGE N 22 TA%LOT 200 z Dere eA.'. aewe N Job NV. — —Ailort7 25890 ALFALFA MARKET ROAD Fllefigntg; edwdc 2669Uf MahM ptl-R./dp Prepared Pa: MIKE SCHOOK —------�,,. -- SEND, ❑ R 97701 P�Mie: soa-eea-s�e1 �Penovm IRUPR10vm va¢rwwuly s �g N N, SEC Site Plan TAXL0T, 771422000,2O 00 iU GROW SITE TOKT SHiP , PMGE N 22 TA%LOT 200 z Dere eA.'. aewe N Job NV. — —Ailort7 25890 ALFALFA MARKET ROAD Fllefigntg; edwdc 2669Uf MahM ptl-R./dp Prepared Pa: MIKE SCHOOK —------�,,. -- SEND, ❑ R 97701 P�Mie: soa-eea-s�e1 �Penovm IRUPR10vm va¢rwwuly ak2l -� N Site Plan GROW SITE 25890 ALFALFA MARKET ROAD BEND, OR 97701 TOWNBHIF P, RAN E U, SEOWNN 2ZTA%WT 20 N.M d For. MIKE SCHOOK Fran« 303-883-6781 Date: 9/10/2017 ReWelone: Job Na 16/B/2w FpeOeBw Bdv* 25M Aft t Mu Wt Rd4U we ,® u1�eBo�mr �,,.. 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Dial - Deschutes County Property Information http://dial.deschutes.org/Real/Improvements/I 31792 Deschutes County Property Information Land and Structures for account # 131792 The Deschutes County Assessor's Office is responsible for the appraisal and assessment of all taxable property within the County. Contact this department if you need additions information or if you have questions. Account Information Mailing Name: STOLLER, DANIEL & MARY J Map and Taxlot: 1714220001200 Account: 131792 Situs Address: 25890 ALFALFA MARKET RD, BEND, OR 97701 Tax Status: Assessable Warning This account may have potential additional tax liabilities, taxes due, or other special development conditions. Structures Located on this Property Description Stat Class Year Built SQFT 1.00 RESIDENCE - ONE STORY 151 1997 2941 View Improvement Report (PDF) es FARM BLDG - GP BUILDING FARM BLDG - GP SHED 300 301 1800 View Improvement Report (PDF) 96 View Improvement Report (PDF) 7,- 0 FARM BLDG - GP SHED 1 301 1 1 64 View Improvement Report (PDF) FARM BLDG -ARENA / FARM BLDG - LOFT BARN 1 3131 1 3720 1 View Improvement Report (PDF) Land Characteristics for this Property Land Description Acres Land Classification Farm Site 1.00 Exclusive Farm Use Zoned 38.09 W3: IRRIGATED GROUND - SOIL CLASS 3 THE INFORMATION AND MAPS ACCESSED THROUGH THIS WEB SITE PROVIDE AVISUAL DISPLAY FOR YOUR CONVENIENCE. EVERY REASONABLE EFFORT HAS BEEN MADE TO ASSURE THE ACCURACY OF THE MAPS AND ASSOCIATED DATA DES COUNTY MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE CONTENT, SEQUENCE, ACCURACY, TIMELINESS OR COMPLETENESS OF ANY OF THE DATA PROVIDED HEREIN. DESCHUTES COUNTY EXPLICITLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DESCHUTES COUNTY SHALL ASSUME NO LIABILITY FOR ANY ERRORS, O INACCURACIES IN THE INFORMATION PROVIDED REGARDLESS OF HOW CAUSED. DESCHUTES COUNTY ASSUMES NO LIABILITY FOR ANY DECISIONS MADE OR ACTIONS TAKEN OR NOT TAKEN BY THE USER OF THIS INFORMATION OR DATA FUR HEREUNDER. © 2018 - Deschutes County. All rights reserved. I of 2 2/27/2018,1:19 PM For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: 247 -17 -000645 -CU (247-17-000962-A) APPLICANT/OWNER: Christopher Baker 64682 Cook Avenue #130 Bend, Oregon 97703 APPLICANT'S Michael Hughes, Hughes Law ATTORNEY: Post Office Box 7619 Bend, Oregon 97708-7619 APPELLANT: Annunziata O. Gould 19845 J W Brown Road Bend, Oregon 97703 APPELLANT'S Ed Fitch, Fitch Law Group, PC ATTORNEY: 210 SW 5th Street, Suite 2 Redmond, OR 97756 PROPOSAL: The applicant is requesting approval of a Conditional Use permit to establish a marijuana production facility in the Multiple Use Agricultural (MUA) Zone. STAFF REVIEWER: ADMINISTRATIVE DECISION ISSUED: APPEAL FILED: HEARING DATE: RECORD CLOSED Cynthia Smidt, Associate Planner November 22, 2017 December 4, 2017 Wednesday, December 27, 2017 Wednesday, January 21, 2018 I. SUMMARY OF DECISION: In this decision, the County Board of Commissioners ("Board") considers the appellant's appeal of the November 22, 2017 administrative Findings & Decision (File No. 247 -17 -000645 -CU, "Administrative Decision"). The Board exercised its discretion to hear the appeal de novo. The Board received three Memoranda on the appeal; two were from Associate Planner Cynthia Smidt and one from Senior Transportation Planner Peter Russell. The two provided by Ms. Smidt include one dated December 21, 2017 ("Pre -Hearing Memo") that identified and summarized the key issues in the Notice of Appeal, the findings made by the staff on those issues in the Administrative Decision or subsequent to it in preparation for Board deliberation, the applicable evidence be in the record, and the arguments of the applicant and the appellants. The second staff memo by Ms. Smidt was dated January 19, 2018 provided summary of all testimony received and a key decision matrix for the Board to utilize during deliberations. Peter Russell provided one staff memo dated January 3, 2018 responding to the transportation and access related items submitted as part of the appeal materials. The Board's Decision in this appeal will refer to and incorporate the Administrative Decision and summary of issues in the Staff Memoranda. On February 5, following deliberation, the Board voted 3-0 to overturn the Administrative Decision approving the land use permit to establish a recreational marijuana production facility on the subject property and directed staff to draft a final decision. II. APPLICABLE STANDARDS AND CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.32. Multiple Use Agricultural Zone Chapter 18.80. Airport Safety Combining Zone Chapter 18.116. Supplemental Provisions Chapter 18.128. Conditional Uses Title 22, Deschutes County Development Procedures Ordinance III. BASIC FINDINGS: The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions of law set forth in the November 22, 2017 administrative Findings & Decision (File 247 -17 -000645 -CU) in Section II. Basic Findings, subsections A (Location), B (Lot of Record), C (Zoning), D (Site Description), E (Surrounding Land Use), F (Proposal) , G (Public Agency Comments), H (Public Comments), I (Notice Requirement), and J (Review Period), with the following addition: K. PROCEDURAL HISTORY: This application was submitted on August 1, 2017 and was deemed complete and accepted for review on August 31, 2017. A Conditional Use permit, which conditionally approved the application, was issued November 22, 2017. An appeal from the appellant was timely filed during the 12 -day appeal period on December 4, 2017. File Nos. 247 -17 -000645 -CU (247-17-000962-A) Document No. 2018-083 Page 2 of 5 The Board used their discretion to "call up" the appellant's appeal to be heard de novo in the Board's Order 2017-050 dated November 29, 2017. A public hearing was held on December 27, 2017. The appellant was represented by Ed Fitch, Attorney at Law. The applicant, Christopher Baker, was represented by Michael Hughes, Attorney at Law. The Board heard testimony and established an open record period of 21 days. The record closed on January 17, 2018. The Board conducted deliberations at their regular Business Meeting on February 5, 2018. The Board found the proposal did not comply with the applicable review criteria and voted 3-0 to overturn the Administrative Decision approving the application. IV. CONCLUSIONARY FINDINGS The Board adopts and incorporates by reference the code interpretations, findings of fact, and conclusions contained in the November 22, 2017 administrative Findings & Decision (File No. 247 -17 -000645 -CU) in Section III. Conclusionary Findings, except for. the findings relating to the DCC Sections identified below. To the extent there are conflicts between any of the findings identified above and the findings below, the findings and conclusions below shall control. A. DCC 1$.116.330(8)(6): 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. 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: As proposed, the marijuana production facility would be located within a portion of the existing agricultural structure, which is located in the northern region of the property. The agricultural building, established in 2007 through permit AG0774, meets setback requirements for the MUA zoning. However, the east side and north rear setbacks are less than the required 100 - foot setback standard for marijuana production. The applicant requested a setback exception to the rear yard and east side yard setback. For reference, public lands managed by the BLM border the property to the north, which connect to the Cline Buttes Recreation Area/Maston Trail Use Area. Property in private ownership borders the subject property to the east. 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 File Nos. 247 -17 -000645 -CU (247-17-000962-A) Document No. 2018-083 Page 3 of 5 impacts. However, having public lands adjacent to a subject property intended for marijuana production should not be a driving force or justification to allow such an exception. The Maston Trail Use Area is frequented by a variety of people for its recreational opportunities throughout the region. 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. B. DCC 18.128.015, General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards In addition to the standards of the zone In which the conditional use Is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 9. Site, design and operating characteristics of the use, 2. Adequacy of transportation access to the site; and 3. The natural and physical features of the site, Including, but not limited to, general topography, natural hazards and natural resource values. FINDING: The marijuana production facility is proposed to be located within the existing agricultural structure located adjacent to the northern property boundary. The Board acknowledges that the site may be suitable for the proposed use based on some of the above noted factors. The aforementioned finding denying a setback exception for the project, however, overshadows those factors and thus the Board finds the site, as configured with this proposal, is not suitable for the use. File Nos. 247 -17 -000645 -CU (247-17-000962-A) Document No. 2018-083 Page 4 of 5 V. DECISION Based on the findings of fact and conclusions of law set out above, the Board hereby denies the applicant's proposed marijuana production and processing application and reverses on appeal the November 22, 2017 administrative Findings & Decision (files 247 -17 -000645 -CU), which approved the application. Dated this J day of February, 2018 Mailed this 14? day of February, 2018 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, Chair PHILIP . HEN RSON, Vice -Chair TAM N , Com inner THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. File Nos. 247 -17 -000645 -CU (247-17-000962-A) Document No. 2018-083 Page 5 of 5 Mailing Date: a Wednesday, November 22, 2017 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541) 388-6575 Fax (541) 385-1764 http://www,daschutes.org/cd FINDINGS AND DECISION FILE NUMBER: 247 -17 -000645 -CU APPLICANT/OWNER: Christopher Baker 64682 Cook Avenue #130 Bend, Oregon 97703 REQUEST: The applicant is requesting a Conditional Use permit to establish a marijuana production (grow) facility on a 9.73 -acre parcel in the Multiple Use Agricultural Zone STAFF CONTACT: Cynthia Smidt, Associate Planner APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.32. Multiple Use Agricultural Zone Chapter 18.80. Airport Safety Combining Zone Chapter 18.116, Supplemental Provisions Chapter 18.128. Conditional Uses Title 22, Deschutes County Development Procedures Ordinance BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 20420 Harper Road, Bend. The property is also identified on Deschutes County Assessor's Map No. 16-12-9, as Tax Lot 503. B. LOT OF RECORD: Deschutes County recognizes the subject property as a legal lot of record because it is Parcel 1 of Partition Plat PP 1995-60. C. ZONING: The subject property is zoned Multiple Use Agricultural (MUA-10). The property is also within the Airport Safety (AS) Combining Zone. The subject property is designated rural residential exception area on the Deschutes County Comprehensive Plan. D. SITE DESCRIPTION: The subject property is approximately 9.73 acres and rectangular. The site with relatively level topography is vegetated with pasture grasses, native and introduced trees and other landscaping. Harper Road abuts the property along its southern Quality Set -vices Perfoi-ined ivith Pride boundary'. The primary access to the site is taken from Harper Road. The property is currently developed with a single-family dwelling and several accessory structures, including an agricultural building, approximately 7,763 square feet in size (this structure was reviewed through agricultural/equine permit AG0774).2 According to the Flood Insurance Rate Map for Deschutes County and the National Wetlands Inventory, respectively, the subject property is not located in the 100 -year flood plain and does not contain wetlands. E. SURROUNDING LAND USES: The area surrounding the subject property consists of developed and vacant rural residential properties, farm -zoned parcels, and public lands. Directly east of the property are residentially zoned properties. Farm -zoned parcels surround the property to the south, west, and further to the east. Large parcels of public lands, managed by the U.S. Bureau of Land Management, border the property to the north and at the southeast corner. Zoning in the area is a mixture of Multiple Use Agricultural and Exclusive Farm Use. F. PROPOSAL: The applicant is requesting approval of a Conditional Use permit to establish an indoor marijuana production (grow) facility on the subject property3. The proposal consists of a maximum mature plant canopy size of 576 square feet within an existing accessory (agricultural) structure. The applicant proposes to use approximately 1,360 square feet4 within an existing agricultural building, which will include a maximum mature plant canopy size of 576 square feet. The existing agricultural structure intended for the proposed use is adjacent to the northern property boundary. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Bend Fire and Rescue: Comments were submitted by Jeff Bond, Deputy Fire Marshal, on August 31, 2017. Mr. Bond's comments are below. General Safety Provisions: • Material Safety Data Sheets shall be on property and made easily accessible to the fire code official. Section 5003.4 of the 2014 Oregon Fire Code • Containers and/or packages related to hazardous materials shall be properly labeled and warning signage shall be properly displayed and easily visible. Section 5003.5.1 of the 2014 Oregon Fire Code. • All persons shall be trained on what to do in the event of an emergency involving hazardous materials on the property. Sections 406 and 407 of the 2014 Oregon Fire Code. ' Near the southwestern corner of the property, Harper Road intersects with White Rock Loop, which travels west and south from this intersection. 2 The submitted site plan illustrates a "Bunk House" just north of the "Main House." In addition, the submitted floor plan illustrates the agricultural building includes a "Dance Hall." This decision does not review or verify the legal status of either the bunk house or dance hall (as a permitted use within an agricultural/equine building). 3 The original proposal included using a portion of the existing structure and enclosing an overhang area on the north side of the structure. The applicant revised this plan by moving everything inside the existing structure and deleting the proposal to enclose the overhang area. 4 Staff performed a rough calculation of the proposed facility as illustrated on the revised site plan and floor plan and which included rooms intended for all stages of growth (e.g. flowering and drying) and storing and staging of materials. 247 -17 -000645 -CU, Baker Page 2 NFPA 704 hazard identification signs shall be placed on stationary containers and above ground tanks and at entrances to locations where hazardous materials are stored, dispensed, used, or handled in quantities requiring a permit and at specific entrances and locations designated by the fire code official. Section 5003.5 of the 2014 Oregon Fire Code. Clearance between ignition sources, such as luminaires, heaters, flame - producing devices, and combustible materials, shall be maintained in an approved manner. Section 305.1 of the 2014 Oregon Fire Code. Building and Equipment Design Features: • Interior finishes (Visqueen® or Mylar® type plastic/polyethylene or polyester to cover walls and ceilings) must comply with flame spread ratings in accordance with Table 803.3 of the 2014 Oregon Fire Code. Exits and Exit Signage, Egress: Security measures shall not conflict with the maintenance and operation of exiting and egress. Means of egress shall not be concealed in any way. Section 1008.1 of the 2014 Oregon Fire Code. Exit doors and their function shall not be eliminated or modified in any way without prior approval of the Building Official. Section 1001.2 of the 2014 Oregon Fire Code. Slide bolts and security bars installed on emergency egress doors are prohibited. Section 1008.1.9.4 of the 2014 Oregon Fire Code. Fire Extinguishers: Provide 10 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: Buildings/facilities associated with the production of marijuana shall have at least one all-weather road 20 feet wide and supporting fire apparatus up to 60,000 GVW. Section 503.2 of the 2014 Oregon Fire Code. Gates across fire apparatus access road shall be approved by the fire code official. Section 503.6 of the 2014 Oregon Fire Code. The installation of a Knox Box® and/or Knox® Key Override shall be installed to provide rapid entry. Section 506.1 of the 2014 Oregon Fire Code. Fire Protection Water Supplies: An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. Section 507.1 of the 2014 Oregon Fire Code. Fire flow requirements for buildings or portions of buildings shall be determined by an approved method. Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. 247 -17 -000645 -CU, Baker Page 3 • In areas without water supply systems, the fire code official is authorized to use NFPA 1142 in determining fire flow requirements. Appendix B107.1 of the 2014 Oregon Fire Code. Hazardous Materials and Operations: • Provide information to the fire code official on the use of Carbon Dioxide and Carbon Dioxide generators related to the marijuana production operation. The use of Carbon Dioxide or Carbon Dioxide Generators creating an asphyxiation hazard shall require monitoring, detection and an audible alarm. Chapter 50 of the 2014 Oregon Fire Code. Electrical: • Identified electrical hazards shall be abated. Identified hazardous electrical conditions in permanent wiring shall be brought to the attention of the responsible code official. Electrical wiring, devices, appliances, and other equipment that is modified or damaged and constitutes an electrical shock or fire hazard shall not be used. Section 605.1 of the 2014 Oregon Fire Code. • Electrical appliances and fixtures shall be tested and listed in published reports of inspected electrical equipment by an approved agency and installed and maintained in accordance with all instructions included as part of such listing. Section 605.7 of the 2014 Oregon Fire Code. Other Fire Service Features: New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole, or other sign or means shall be used to identify the structure. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 541-388-6309 during normal business hours. Section 505.1 of the 2014 Oregon Fire Code. 2. Central Electric Cooperative (CEC): The following comments were received on August 22, 2017: CEC requests the applicant apply for a new electrical service by calling 541-548- 2144 and provide electrical load and demand requirements for this activity. CEC will determine if capacity is available STAFF COMMENT: The applicant provided a letter by Robert Fowler, Engineering Service Representative with CEC, dated July 28, 2017 stating that CEC reviewed the proposed marijuana production facility and "is willing and able to serve this location" 3. Deschutes County Building Safety Division: Randy Scheid, Building Safety Director, submitted comments on August 16, 2017. Mr. Scheid's comments are below: 247 -17 -000645 -CU, Baker Page 4 The Deschutes County Building Safety Division code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 4. Deschutes County Road Department: Cody Smith, County Engineer, received the following comments on August 18, 2017: I have reviewed the application materials for the above -referenced file number, requesting a conditional use permit to establish a recreational marijuana production facility at 20420 Harper Rd. The subject property has an existing driveway access to Harper Road that was approved for farm use under Permit #SW3528. A new driveway access permit is not required. STAFF COMMENT: In an August 17 email correspondence, Mr. Smith confirmed that Harper Road is a County maintained road in front of the subject property. Mr. Smith also states, "Harper Road is a County - maintained road from the intersection of White Rock Loop to approximately 0.74 mile east of that intersection. 5. Deschutes County Transportation Planner: Peter Russell, Senior Transportation Planner submitted the following comments, on August 18, 2017: I have reviewed the transmittal materials for 247 -17 -000645 -CU for a marijuana production (growing) operation in the Multiple Use Agricultural (MUA-10) and Airport Safety (AS) zones at 20420 Harper Road, aka 16-12-09, Tax Lot 503. Deschutes County Code (DCC) at 18.116.330(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. The building lies approximately 35,650 feet to west-southwest of the Redmond Airport. The existing buildings do not penetrate any imaginary surface related to the Redmond Airport. Board Resolution 2013-020 sets an SDC rate of $3,937 per p.m. peak hour trip. The County uses the most recent edition of the Institute of Traffic Engineers (ITE) trip generation manual to assess SDCs. The ITE manual does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1, 000 square feet. The applicant is enclosing a portion of an existing building for the production and support of cannabis. Based on the supplied materials, staff arrived at 1,236 square feet will be used (12'X (24'+ 4'+ 24) and 18'X34). The County's SDC is based on the building's total square footage related to cannabis production and support and not the square footage of the mature canopy. The 1,236 square feet will produce 0.40 p.m. peak hour trips (1.236 X 0.32). The resulting SDC is $1,575 (0.40 X $3,937). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. 247 -17 -000645 -CU, Baker Page 5 6. Tumalo Irrigation District: The following comments and a map were submitted on August 15, 2017: There are no irrigation water rights on Parcel#1612090000503. 7. The following agencies did not respond or had no comments: Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes County Property Address Coordinator, Oregon Department of Aviation, Oregon Liquor Control Commission, Pacific Power, and Watermaster — District 11. H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 250 feet of the subject property. One comment was submitted in favor by Matt Cyrus of the Deschutes County Farm Bureau. Six comments were submitted in opposition of the proposal that included the following concerns: • Water and power usage • Odor, noise, and lighting • Safety (crime) • Traffic impacts • Property values • Setback Exception and Expansion plans • Cline Buttes Recreation Area/Maston Trail Use Area proximity • Covenants, Conditions, and Restrictions (CC&Rs) for the property The applicant provided a response to these concerns on November 15, 2017, which is incorporated in the record by reference. I. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of Section 22.24.030(8) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated August 9, 2017, indicating the applicant posted notice of the land use action on August 9, 2017. J. REVIEW PERIOD: The application was submitted to the Planning Division on August 1, 2017. The Planning Division deemed the application complete and accepted it for review on August 31, 2017. The 1501h day on which the County must take final action on this application is January 28, 2017. III. FINDINGS AND CONCLUSIONS: Title 18, Deschutes County Zoning Ordinance. A. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE 1. Section 18.32.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: JJ. Marijuana production subject to the provisions of DCC 18.116.330. FINDING: The applicant is proposing marijuana production on the subject property. Compliance with the provisions of DCC 18.116.330 and 18.128.015 is addressed later in the decision. 247 -17 -000645 -CU, Baker Page 6 2. Section 18.32.040. Dimensional Standards. In an MUA Zone, the following dimensional standards shall apply. D. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC 18.120.040. FINDING: The marijuana production facility will be established in an existing agricultural structure that has an approximate height of 23 feet. The structure was reviewed through agricultural (equine) permit AG0774. There are no new structures proposed. Therefore, this criterion is not applicable. 3. Section 18.32.050. Yards. A. The front yard setback from the property line shall be a minimum of 20 feet for property fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 80 feet from an arterial right of way unless other provisions for combining accesses are provided and approved by the County. B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before November 1, 1979, which are one-half acre or less in size, the side yard setback may be reduced to a minimum of 10 feet. For parcels or lots adjacent to property receiving special assessment for farm use, the adjacent side yard for a dwelling shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to property receiving special assessment for farm use, the rear yards for a dwelling shall be a minimum of 100 feet. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. E. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: As indicated previously, the marijuana production facility will be established in an existing agricultural structure. These criteria were reviewed with agricultural permit AG0774. According to County records, the existing structure has a front (south) yard setback from Harper Road of approximately 1,158 feet. Side yard setbacks from the west and east property boundaries are 110 feet and 36 feet, respectively. The rear (north) yard setback is approximately 66 feet. These criteria are satisfied. B. CHAPTER 18.80. AIRPORT SAFETY COMBINING ZONE 1. Section 18.80.020. Application of Provisions. The provisions of DCC 18.80.020 shall only apply to unincorporated areas located under airport imaginary surfaces and zones, including approach surfaces, transitional surfaces, horizontal surfaces, conical surfaces and runway protection zones. While DCC 18.80 identifies dimensions for the entire imaginary surface and zone, parts of the surfaces and/or zones do not apply within the Redmond, Bend 247 -17 -000645 -CU, Baker Page 7 or Sisters Urban Growth Boundaries. The Redmond Airport is owned and operated by the City of Redmond, and located wholly within the Redmond City Limits. Imaginary surface dimensions vary for each airport covered by DCC 18.80.020. Based on the classification of each individual airport, only those portions (of the AS Zone) that overlay existing County zones are relevant. Public use airports covered by DCC 18.80.020 include Redmond Municipal, Bend Municipal, Sunriver and Sisters Eagle Air. Although it is a public -use airport, due to its size and other factors, the County treats land uses surrounding the Sisters Eagle Air Airport based on the ORS 836.608 requirements for private -use airports. The Oregon Department of Aviation is still studying what land use requirements will ultimately be applied to Sisters. However, contrary to the requirements of ORS 836.608, as will all public -use airports, federal law requires that the FAA Part 77 surfaces must be applied. The private -use airports covered by DCC 18.80.020 include Cline Falls Airpark and Juniper Airpark. FINDING: The subject property lies within one imaginary surface for the Redmond Municipal Airport. The proposal does not include establishing a new structure. The applicant is proposing to use an existing agricultural building. The structure is located in the northern region of the property. This area of the property is located below the Approach Surface. Therefore, the provisions of this chapter apply to the proposal. 2. Section 18.80.028. Height Limitations. All uses permitted by the underlying zone shall comply with the height limitations in DCC 18.80.028. When height limitations of the underlying zone are more restrictive than those of this overlay zone, the underlying zone height limitations shall control. [ORS 836.619; OAR 660-013-0070] A. Except as provided in DCC 18.80.028(B) and (C), no structure or tree, plant or other object of natural growth shall penetrate an airport imaginary surface. [ORS 836.619; OAR 660-013-0070(1)] FINDING: The subject property is situated under one imaginary surface associated with the Redmond Municipal Airport. All imaginary surfaces associated with the Redmond Municipal Airport are at least 100 -feet above the subject property and no penetrations of this surface are included in this proposal. This criterion is met. B. For areas within airport imaginary surfaces but outside the approach and transition surfaces, where the terrain is at higher elevations than the airport runway surfaces such that existing structures and permitted development penetrate or would penetrate the airport imaginary surfaces, a local government may authorize structures up to 35 feet in height. FINDING: The subject property is within the Approach Surface of the Redmond Municipal Airport. The imaginary surface is at least 100 -feet above the subject property and no penetrations of this surface are included in this proposal. This criterion is met. C. Other height exceptions or variances may be permitted when supported in writing by the airport sponsor, the Department of Aviation and the FAA. Applications for height variances shall follow the procedures for other 247 -17 -000645 -CU, Baker Page 8 variances and shall be subject to such conditions and terms as recommended by the Department of Aviation and the FAA (for Redmond, Bend and Sunriver.) FINDING: No height exceptions or variances are sought by this application; therefore, this criterion does not apply. 3. Section 18.80.044. Land Use Compatibility. Applications for land use or building permits for properties within the boundaries of this overlay zone shall comply with the requirements of DCC 18.80 as provided herein. When compatibility issues arise, the Planning Director or Hearings Body is required to take actions that eliminate or minimize the incompatibility by choosing the most compatible location or design for the boundary or use. Where compatibility issues persist, despite actions or conditions intended to eliminate or minimize the incompatibility, the Planning Director or Hearings Body may disallow the use or expansion, except where the action results in loss of current operational levels and/or the ability of the airport to grow to meet future community needs. Reasonable conditions to protect the public safety may be imposed by the Planning Director or Hearings Body. [ORS 836.619, ORS 836.623(1); OAR 660-013-0080] A. Noise. Within airport noise impact boundaries, land uses shall be established consistent with the levels identified in OAR 660, Division 13, Exhibit 5 (Table 2 of DCC 18.80). Applicants for any subdivision or partition approval or other land use approval or building permit affecting land within airport noise impact boundaries, shall sign and record in the Deschutes County Book of Records, a Declaration of Anticipated Noise declaring that the applicant and his successors will not now, or in the future complain about the allowed airport activities at the adjacent airport. In areas where the noise level is anticipated to be at or above 55 Ldn, prior to issuance of a building permit for construction of a noise sensitive land use (real property normally used for sleeping or as a school, church, hospital, public library or similar use), the permit applicant shall be required to demonstrate that a noise abatement strategy will be incorporated into the building design that will achieve an indoor noise level equal to or less than 55 Ldn. NOTE. FAA Order 5100.38A, Chapter 7 provides that interior noise levels should not exceed 45 decibels in all habitable zones.] FINDING: The proposed project is not within the noise impact boundary of the Redmond Municipal Airport. Therefore, this criterion is not applicable. B. Outdoor lighting. No new or expanded industrial, commercial or recreational use shall project lighting directly onto an existing runway or taxiway or into existing airport approach surfaces except where necessary for safe and convenient air travel. Lighting for these uses shall incorporate shielding in their designs to reflect light away from airport approach surfaces. No use shall imitate airport lighting or impede the ability of pilots to distinguish between airport lighting and other lighting. FINDING: The applicant is proposing to establish a marijuana production facility within an existing agricultural structure. The proposed facility is an agricultural use. The applicant is not proposing a new or expanded industrial, commercial, or recreational use. Therefore, this criterion is not applicable. 247 -17 -000645 -CU, Baker Page 9 C. Glare. No glare producing material, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of structures located within an approach surface or on nearby lands where glare could impede a pilot's vision. FINDING: The applicant is not proposing any modifications of the existing structure. The exterior siding and roofing material will not be changed with this proposal. The siding and roofing of the existing structure is finished with earth tone colors. This criterion is satisfied. D. Industrial emissions. No new industrial, mining or similar use, or expansion of an existing industrial, mining or similar use, shall, as part of its regular operations, cause emissions of smoke, dust or steam that could obscure visibility within airport approach surfaces, except upon demonstration, supported by substantial evidence, that mitigation measures imposed as approval conditions will reduce the potential for safety risk or incompatibility with airport operations to an insignificant level. The review authority shall impose such conditions as necessary to ensure that the use does not obscure visibility. FINDING: The proposed use is an agricultural use, and does not include any industrial, mining, or similar use. E. Communications Facilities and Electrical Interference. No use shall cause or create electrical interference with navigational signals or radio communications between an airport and aircraft. Proposals for the location of new or expanded radio, radiotelephone, and television transmission facilities and electrical transmission lines within this overlay zone shall be coordinated with the Department of Aviation and the FAA prior to approval. Approval of cellular and other telephone or radio communication towers on leased property located within airport imaginary surfaces shall be conditioned to require their removal within 90 days following the expiration of the lease agreement. A bond or other security shall be required to ensure this result. FINDING: The proposed development will not cause or create electrical interference with navigational signals or radio communications between an airport and aircraft. F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach Surface, and Airport Direct and Secondary Impact Areas. For the Redmond, Bend, Sunriver, and Sisters airports, the land uses identified in DCC 18.80 Table 1, and their accessory uses, are permitted, permitted under limited circumstances, or prohibited in the manner therein described. In the event of conflict with the underlying zone, the more restrictive provisions shall control. As used in DCC 18.80.044, a limited use means a use that is allowed subject to special standards specific to that use. FINDING: The subject property and existing agricultural structure intended for the proposed marijuana production facility will be located in the Approach Surface of the Redmond Municipal Airport. The proposed use is considered farm use, which is a use allowed outright according to DCC 18.80 Table 1. 247 -17 -000645 -CU, Baker Page 10 4. Section 18.80.054. Conditional Uses. Uses permitted conditionally shall be those identified as conditional uses in the underlying zone with which the AS Zone is combined, and shall be subject to all conditions of the underlying zone except as provided in DCC 18.80.044. FINDING: The applicant is proposing to establish a marijuana production facility in an existing agricultural structure. Marijuana production is a use permitted conditionally in the MUA-10 Zone and thus permitted conditionally in the AS Zone. C. CHAPTER 18.116, SUPPLEMENTARY PROVISIONS 1. Section 18.116.330. Marijuana Production, Processing, and Retailing A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. FINDING: The applicant has proposed marijuana production in an MUA-10 zone. This criterion is met. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is 9.73 acres in size. This standard is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is located in the MUA-10 zone. The proposed facility with be located entirely within one existing agricultural structure. This standard is met. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that. 247 -17 -000645 -CU, Baker Page 11 1. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: The above criteria applies to properties within the EFU Zone. The subject property is within the MUA-10 Zone. This standard is not applicable. For reference, however, the applicant has proposed up to 576 square feet in mature plant canopy area. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is located in the MUA-10 Zone and is 9.73 acres in size. The applicant proposes to use a small area, approximately 1,206 square feet of an existing agricultural structure. Therefore, these criteria are satisfied. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed marijuana production facility will operate under no more than one OLCC permit. Staff includes this requirement as a condition of approval. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. FINDING: The marijuana production facility will be established in an existing agricultural building on the property. According to County records for permit AG0774, the structure has a front yard setback from Harper Road of approximately 1,158 feet. The side yard setbacks from the west and east property boundaries are 110 feet and 36 feet, respectively, and the rear yard setback is approximately 66 feet. However, the applicant indicates the east side yard and rear yard setbacks are approximately 58 feet and 55 feet, respectively. The applicant is requesting an exception to the rear yard and east side yard setback, as discussed below in subsection (c). b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to 247 -17 -000645 -CU, Baker Page 12 Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. FINDING: The submitted site plan shows the existing agricultural structure intended for the marijuana production will be no less than 300 feet from most off-site dwellings in the area. The closest residence to the proposed site is approximately 500 feet, located southeast at 20440 Harper Road. This criterion is satisfied. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The proposed marijuana production facility will occur within an existing agricultural structure located in the northern region of the property. The agricultural building, approximately 7,763 square feet, was established in 2007 through permit AG0774. The barn is separated into several areas including horse stalls, storage areas, and other uses. The applicant proposes to use a portion of the structure, approximately 1,360 square feet, for marijuana production. The remaining areas will maintain their existing uses (e.g. horse stalls, tack room, personal storage). As noted above, the existing structure has a rear setback from the north property boundary of approximately 55 feet. In addition, the existing structure has a side setback from the east property boundary of approximately 58 feet. The setbacks of the existing structure are slightly different from those that were indicated under permit AG0774. Nevertheless, the setbacks meet the requirement under MUA-10 zoning. Both the side and rear setbacks are less than the required 100 -foot setback standard for marijuana production. The applicant is requesting an exception to the 100 -foot setback standard for these two setbacks. Visual: Staff finds that the structure is visually similar to typical residential accessory structures or agricultural structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks typically required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. The applicant is not proposing any modifications of the existing structure. The exterior siding and roofing material will not be changed with this proposal. No production lighting will be visible off- site, due to the use of an opaque building, and all other lighting will comply with the lighting requirements of DCC 15.10. Odor: All air leaving the structure will be filtered, as described below. This system does not rely on distance to attenuate or dissipate odor. Staff finds that production will be conditioned to have an odor control system that must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. Staff finds that the combination of the odor control system and condition of approval will ensure that equal mitigation will be provided despite the reduced setback. Noise: The heating and cooling system will run intermittently, as needed. The heat pump unit will be located on the north side of the structure, under a roof overhang. The unit has a sound level rating of 56 dB. According to the submitted engineer's calculations, based on the orientation and location of the unit, together with the sound barrier provided by the overhanging roof of the structure, the sound level will decrease to 10.2 dB and 19.1 dB 247 -17 -000645 -CU, Baker Page 13 at the nearest western and eastern boundary, respectively. No other components of production are anticipated to produce sustained noise. Lighting: No production lighting will be visible off-site, due to the use of an opaque building. All other lighting will comply with the lighting requirements of DCC 15.10. Privacy: Staff finds that the structure is visually similar to typical residential accessory structures and agricultural structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. Staff finds the combination of screening and buffering, due to distance, will adequately mitigate any privacy concerns. Access: Staff finds the property has direct access to a County maintained, public road. The use is of a limited size and scale such that no traffic impacts are anticipated. For these reasons, staff finds that the applicant has demonstrated that the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: 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: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: Fifteen properties are wholly or partially within 1,000 feet of the subject property. None of these properties is in a use described in this section or is subject to sub -section (c). The closest such use is the Seventh Day Adventists School located at 21155 Tumalo Road, which is approximately 3.5 miles to the southeast of the subject property. For reference, the Maston Trail Use Area, a BLM recreational area, is located 247 -17 -000645 -CU, Baker Page 14 approximately 1,400 feet to the north. However, this BLM Recreational area is not considered a national monument or state park. These criteria are met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall. I. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. FINDING: Access to the site is taken from Harper Road. The applicant proposes a maximum canopy size of 576 square feet; therefore, these criteria are not applicable. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7.00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15. 10, Outdoor Lighting Control. FINDING: The applicant has proposed to limit visible lighting outside the structure from 7:00 p.m. to 7:00 a.m. The agricultural building will have opaque walls and roof covering, according to the applicant. Staff finds these criteria can be met but to ensure compliance, staff includes these criteria as conditions of approval. 10. Odor. As used in DCC 18.116.330(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 247 -17 -000645 -CU, Baker Page 15 unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: L Consist of one or more fans. The fans) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. FINDING: The applicant submitted a letter from Laura J. Breit, an Oregon licensed professional mechanical engineer with ColeBreit Engineering. The applicant states the proposed facility will be designed as a "closed room" with CO2 supplementation and air conditioning. Mrs. Breit provides more detail involving the installation of Can -Fan with an attached Can -Filter (carbon filter) as part of the system. To ensure compliance, it will be made a condition of approval that an effective odor control system at all times must prevent unreasonable interference of neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m, the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. FINDING: The applicant submitted a letter from Laura J. Breit, an Oregon licensed professional mechanical engineer with ColeBreit Engineering. Mrs. Breit indicates the proposal will include a heat pump located on the north side of the existing structure. The heat pump system will provide heating and cooling to the growing process. The outdoor heat pump has a sound level rating of 56 dB, which decreases to 10.2 dB and 19.1 dB at the nearest western and eastern boundary, respectively. Based on Mrs. Breit's analysis, the system will not cause sustained noise exceeding 30 dB measured at any property line between 10:00 p.m. and 7:00 a.m. and thus meeting noise control requirements. To ensure compliance, it will be made a condition of approval that sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non -rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. 247 -17 -000645 -CU, Baker Page 16 b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: The applicant is not proposing any new fencing or razor wire. The applicant proposes to retain screening vegetation as part of this project. Staff adds the following conditions to ensure compliance with the above section. As an ongoing condition of approval, any future fencing shall be finished in a muted earth tone. The fencing shall blend with the surrounding natural landscape and not be constructed of temporary materials such as plastic sheeting, hay bales, or tarps. As an ongoing condition of approval, the existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or c. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. FINDING: The subject property contains 8.3 acres of groundwater rights for use during the irrigation season of March 1 to October 31. The applicant intends to apply with the Oregon Water Resources Department to convert one (1) acre of existing water rights from irrigation to nursery rights. Until that conversion is reviewed and approved, the applicant is purchasing water from ABC Lightning, LLC during the off-season, November 1 to February 28. This standard is met. Based on the information in the record, staff finds this criterion will be met. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: This criterion does not apply because it pertains to marijuana processing not production. 247 -17 -000645 -CU, Baker Page 17 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: Robert Fowler, Engineering Service Representative provided the following comments on July 28, 2017. Central Electric Cooperative has reviewed the provided load information (New 400 amp single phase 240 volt service) associated with the submitted Cannabis Grow Facility is willing and able to serve this location in accordance with the rates and policies of the Central Electric Cooperative. This criterion is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: The applicant proposes security cameras with this proposal that will be connected to an alarm system. The applicant acknowledges the requirement noted above. The proposed security cameras will be directed to record only the subject property. To ensure compliance, staff includes it as a condition of approval. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant acknowledges this requirement. Staff includes this requirement as a condition of approval. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property. a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is within the MUA-10 Zone. The applicant is proposing a marijuana production facility. Therefore, the resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, if the license applies to the subject property. The applicant and owner, Chris Baker, will be living on the property and will be the holder of an OLCC license. To ensure compliance this will be made a condition of approval. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(6)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16,17) by December 8, 2016. 247 -17 -000645 -CU, Baker Page 18 FINDING: The subject property does not presently have an established grow site. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: I. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(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. FINDING: The applicant has indicated that none of the prohibited uses identified in this section are proposed. As a condition of approval, the uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: 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. 247 -17 -000645 -CU, Baker Page 19 d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting requirements of this section shall be a condition of approval. D. CHAPTER 18.128. CONDITIONAL USES 1. Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The applicant is requesting to establish a marijuana production facility licensed on the subject property. The proposed use will be sited within an existing agricultural structure established in 2007 and which is located in the northern region of the 9.73 -acre property. The property has relatively level terrain with some native and introduced vegetation throughout the property, including trees, groundcover, and pasture grasses. The site is developed with a single-family dwelling and other accessory structures, primarily located in the northern half of the property. Harper Road is adjacent to the property along its southern boundary. Access to the property is taken from Harper Road via an existing gravel driveway. The proposed marijuana production facility includes a grow operation to no more than 576 square feet of mature plant canopy in order to meet the OLCC Micro Tier I Canopy regulations. As indicated above, the production facility will be located in an existing agricultural structure. No exterior alterations, new structures, signs, or other site improvements are proposed. The existing structure has a front (south) yard setback from Harper Road of approximately 1,158 feet. Side yard setbacks from the west and east property boundaries are 110 feet and 36 feet, respectively. The rear (north) yard setback is approximately 58 feet. The applicant proposes to retain screening vegetation as part of this project. As a condition of approval, the resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, provided that the license applies to the subject property. Operational characteristics include complying with the lighting, odor, and noise standards of DCC 18.116.330. Based on the applicant's description of the facility's design and operating characteristics, staff finds the proposal demonstrates that the site under consideration is suitable for the proposed marijuana production facility. 247 -17 -000645 -CU, Baker Page 20 2. Adequacy of transportation access to the site; and FINDING: The proposed facility would have primary access from Harper Road, which is designated as a rural local road. Harper Road is adjacent to the southern property boundary. The applicant proposes to use the existing gravel driveway off Harper Road. An access permit was issued to the property through permit SW3528. Staff finds the road is adequate for passenger vehicles and can accommodate vehicle trips generated by the use. No inadequacy of the existing transportation infrastructure has been identified in the record. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: The subject property is approximately 9.73 acres and developed with a single- family dwelling, several accessory structures, and agricultural uses. The property has relatively level terrain. The site is vegetated with trees, groundcover, and pasture grasses. Staff finds that the site presents no topographical constraints, is not subject to any unusual natural hazards, contains no natural resources, and is suitable for the proposed use. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). FINDING: The applicant is proposing to establish a marijuana production facility licensed through OLCC. The production facility will be located in an existing agricultural structure that is located in the northern region of the property. The applicant is the resident and owner of the property and whom will be involved with the daily operation of the production facility. As noted previously, operational characteristics also include complying with the lighting, odor, and noise standards of DCC 18.116.330. The subject property is surrounded by developed and vacant rural residential properties, farm -zoned parcels, and public lands. Directly to the east are residentially zoned properties. Farm -zoned parcels surround the property to the south, west, and further to the east. Bordering the property to the north and at the southeast corner are public lands managed by the U.S. Bureau of Land Management. Harper Road/White Rock Loop, which services many other properties in the area, runs east to west and abuts the property along its southern boundary. The closest residential development to the facility is approximately 500 feet to the southeast. There is evidence of other farm practices, large and small, occurring on the neighboring private lands. There is the potential of farm use to continue to occur in the future. There are no properties used or zoned for forest use in the surrounding area; the predominant tree species in the surrounding area is juniper, which is not a commercial species. The projected land uses based on the current zoning will likely be similar to those already established such as single-family dwellings and agricultural uses, as well as low -intensity recreational use on neighboring public lands. Staff is unaware of any other projected uses on surrounding properties. 247 -17 -000645 -CU, Baker Page 21 Site, Design, and Operating Characteristics Staff finds that the proposed use would not directly impede the use of surrounding properties for residential and farm use, as it would not prevent or restrict development of otherwise lawful uses in the surrounding zones. Several comment letters were received and made part of the record. Some of the concerns and objections include odor, noise, and lighting impacts, increased crime, and decreased property values. Staff acknowledges that these impacts, depending on the magnitude, could adversely affect surrounding residential uses. This would result in the proposed use being incompatible with the surrounding residential uses. Staff evaluated the identified potential impacts below. Visual: Staff has previously found that the structure is visually similar to typical residential accessory structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks typically required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. The applicant is not proposing any modifications of the existing structure. The exterior siding and roofing material will not be changed with this proposal. No production lighting will be visible off-site, due to the use of an opaque building, and all other lighting will comply with the lighting requirements of DCC 15.10. Odor: All air leaving the structure will be filtered, as described above. This system does not rely on distance to attenuate or dissipate odor. While staff understands concerns regarding odor, the record includes the statement of a registered professional engineer that the proposed system will, prevent unreasonable interference of neighbors' use and enjoyment of their property. Staff finds that compliance with this standard is sufficient to demonstrate that the use will be compatible with surrounding residential uses. There is no evidence in the record that the proposed odor control system cannot accomplish this requirement. Were the system to fail to meet this standard, the standard is included as a condition of approval and violation would be subject to code enforcement. Noise: The heating and cooling system will run intermittently, as needed. The heat pump unit will be located on the north side of the structure, under a roof overhang. The unit has a sound level rating of 56 dB. According to the submitted engineer's calculations, based on the orientation and location of the unit, together with the sound barrier provided by the overhanging roof of the structure, the sound level will decrease to 10.2 dB and 19.1 dB at the nearest western and eastern boundary, respectively. No other components of production are anticipated to produce sustained noise. Staff notes that 30 dba is the typical background noise level in a quiet residential neighborhood and, thus, the use would not be incompatible with surrounding residential uses. Staff also notes that the use is subject to Chapter 8.08, Noise Control. Specifically prohibited is: "Unreasonably loud or raucous noise "' means: A. Motor vehicle noise which is louder or heard for a longer period than that produced by use in direct transportation by motor vehicles with mufflers supplied by the manufacturer with the vehicle, which disturbs, injures or endangers the comfort, repose, health, peace or safety of persons 30 or more feet away, if such noise is not emitted in order to make the motor vehicle move up to the maximum speed limit on public streets, roads, and/or highways for the purpose of direct transportation; or 247 -17 -000645 -CU, Baker Page 22 B. Noise, which violates the standards of the Environmental Quality Commission, adopted pursuant to ORS 467.030 which are not exempt under ORS 467.035 or permitted by a variance issued under ORS 467.060; C. The sounding of any horn or signaling device on any automobile, motorcycle, bus or other vehicle except as a reasonable signal required by the exigencies of vehicular or pedestrian traffic; the creation by means of any such signaling device of any sound which disturbs the sleep, peace, quiet, comfort or repose of other persons; the sounding of any such device for an unnecessary or unreasonable period of time; L The use of any automobile, motorcycle or other vehicle so out of repair, so loaded, or in such a manner as to disturb the sleep, peace, quiet, comfort or repose of persons more than 30 feet away; J. The loading or unloading of any vehicle or the opening, closing or destruction of bales, boxes, crates and containers, so as to disturb the sleep, peace, quiet, comfort or repose of persons more than 30 feet away; O. The operation of any blower, power fan, internal combustion engine, electric motor or compressor, or the compression of air, unless the sound from each machine is sufficiently muffled so as not to disturb the sleep, peace, quiet, comfort or repose of persons more than 30 feet away. Privacy: Staff finds that the structure is visually similar to typical residential accessory structures and agricultural structures and observes a setback in excess of the 20 -foot and 25 -foot setbacks typically required for such structures. Some vegetation and existing structural screening exists and will continue to exist on site. The exterior siding and roofing material with not be changed with this proposal. Staff finds the combination of screening and buffering, due to the distance of 55 feet to the northern and 58 feet to the eastern property lines, will adequately mitigate any privacy concerns. Incompatibility with residential uses: Staff finds that this public concern, as well as concerns regarding potential impacts to property values, are secondary impacts that would result from one of the other identified primary impacts (e.g. noise, odor, etc.) resulting in an incompatibility with surrounding residential uses. Staff finds that there is no evidence in the record that the proposed use is likely to cause incompatibility with residential uses or impacts to property values, without first causing other identified primary impacts (e.g. noise, odor, etc.). Safety and crime: While this is a common neighbor concern for the proposed use, Staff finds that there is no evidence in the record that small-scale marijuana production increases crime in surrounding residential neighborhoods. Transportation Access Staff finds the property has direct access to a County maintained, public road, which is not a shared access. The proposed use is of a limited size and scale such that no traffic impacts are anticipated. No infrastructure deficiencies were identified by public agencies. Staff finds that there is no evidence in the record that the small-scale facility would generate a significant number of additional trips or ongoing heavy truck traffic. Staff also notes that the maintenance of the road is conducted by the County. 247 -17 -000645 -CU, Baker Page 23 Natural and Physical Features Based on staff's site visit and review of aerial photographs of the area, staff finds the surrounding lands to have similar characteristics as the subject property — generally level; moderately vegetated with sage brush and juniper trees; natural resource values that are limited to existing vegetation; no apparent natural hazards; and no unique or significant physical features. Given the low intensity of expected use, staff finds the proposed use will be compatible with the natural and physical features on surrounding lands. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: Staff finds the approval of the proposed marijuana production facility shall be subject to the conditions of approval set forth at the end of this decision. 2. Section 18.128.040. Specific Use Standards. A conditional use shall comply with the standards of the zone in which it is located and with the standards and conditions set forth in DCC 18.128.045 through DCC 18.128.370. FINDING: The proposed marijuana production facility is proposed within the MUA-10 Zone. The specific criteria for this zone have been reviewed above and the proposed use complies with specific criteria of the MUA-10 Zone. IV. TRANSPORTATION SYSTEM DEVELOPMENT CHARGES: Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $1,575 for the marijuana production (grow) facility. This is based on the County's SDC rate of $3,937 per p.m. peak hour trip. The SDC in this application will be triggered prior to certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. V. CONCLUSION: Based on the foregoing findings and conclusions, staff concludes that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. Other permits may be required. The applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Safety Division, the Deschutes County Environmental Soils Division, and the Deschutes County Road Department, as well as obtaining any required state and federal permits. VI. DECISION: APPROVAL, subject to the following conditions of approval. 247 -17 -000645 -CU, Baker Page 24 VII. CONDITIONS OF APPROVAL: A. Use & Location: Marijuana production is conditionally approved inside the existing agricultural structure. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new conditional use application. ONGOING CONDITIONS OF APPROVAL B. Li htin : 1. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. 2. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. 3. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. C. Odor: The proposed odor control system must prevent unreasonable interference of neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use at all times. D. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. E. 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. F. Fencing: If fencing is used, it shall be finished in a muted earth tone and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. G. 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. H. 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 or the OHA. I. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. J. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production is conducted on the site. Marijuana production is prohibited in any outdoor area. 247 -17 -000645 -CU, Baker Page 25 K. 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: 1. Documentation demonstrating compliance with the: a. Land use decision and permits. b. Fire, health, safety, waste water, and building codes and laws. c. State of Oregon licensing requirements. 2. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C) (1) (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. 3. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. 4. Marijuana Control Plan to be established and maintained by the Community Development Department. 5. Conditions of Approval Agreement to be established and maintained by the Community Development Department, 6. This information shall be public record subject to ORS 192.502(17) L. Residency: The resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, provided that the OLCC license applies to the subject property. VIII. DURATION OF APPROVAL: The Applicant shall obtain all required permits and initiate the use within two (2) years following the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the Deschutes County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION c/7Z Written by: Cynthia Smidt, Associate Planner Reviewed eter Gutowsky, Planning Manager 247 -17 -000645 -CU, Baker Page 26 Deschutes County File 247 -17 -000645 -CU 20420 Harper Road, Bend NEWCOMB.RD Subject Property i R Rif Deschutes County GIS, Sources: Esri, USGS, NOAA :3 > > M O Z) O ::) U U U U U Y U U U t -t n n dam' dam' 1 d:' n p l0 lO l0 l0 l0 1.0 CD l0 lO U c -t rl rl a) Q LL LL LL LL LL LL LL LL LL O M ri C1 U J J a N U O O a C > ca CC Y au .t' t a CL m (L) V O N O D C W N to Ln Ln O O Ln Ln L +-' w l0 It V) w l0 d' N U "CS N d' l0 l0 (.0 O O O) w m W w w tD w N N rl cq N O U L n3 U to C ns v L 0) M M M M M M M Ln 0 0 0 0 0 0 0 f� r- r- r- f- !*� Il� le 01 0) O) 0) 0) 0) 0) 0) Q CC CL = CC CC = OC O O O O O O O O N N N aj a-+ a) a) aJ a1 a1 O a) ,N U 00 m m m CO m m N O M ri C1 U J J a N U O O a C > ca CC Y au .t' t a CL m (L) V O N O D C W N to Ln Ln O O Ln Ln L +-' w l0 It V) w l0 d' N U "CS N d' l0 l0 (.0 O O O) w m W w w tD w N N rl cq N O U L n3 U to C ns v L 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 NOTICE OF DECISION The Deschutes County Planning Division has approved the land use application described below: FILE NUMBER: 247 -17 -000645 -CU LOCATION: The subject property has an assigned address of 20420 Harper Road, Bend; and is further identified on Deschutes County Assessor's Map 16-12-09, as tax lot 503. APPLICANT/OWNER: Christopher Baker SUBJECT: The Deschutes County Planning Division has approved a Conditional Use permit to establish a recreational marijuana production facility on a 9.73 -acre parcel in the Multiple Use Agricultural (MUA-10) Zone. STAFF CONTACT: Cynthia Smidt, Associate Planner, Cynthia.Smidt@deschutes.org, (541) 317-3150 DOCUMENTS: Can be viewed and downloaded from http://dial.deschutes.org/Search/General or https://aca.oregon.accela.com/oregon/. APPLICABLE CRITERIA: The Planning Division reviewed this application for compliance against criteria contained in Chapters 18.32, 18.80, 18.116, and 18.128 in Title 18 of the Deschutes County Code (DCC), the Deschutes County Zoning Ordinance, as well as against the procedural requirements of Title 22 of the DCC. DECISION: Staff finds that the application meets applicable criteria, and approval is being granted subject to the following conditions: CONDITIONS OF APPROVAL A. Use & Location: Marijuana production is conditionally approved inside the existing agricultural structure. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new conditional use application. Qsiality Sen)ices Performed ivit/r Pride ONGOING CONDITIONS OF APPROVAL B. Lighting: 1. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. 2. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. 3. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. C. Odor: The proposed odor control system must prevent unreasonable interference of neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use at all times. D. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. E. 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. F. Fencing: If fencing is used, it shall be finished in a muted earth tone and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. G. 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. H. 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 or the OHA. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. J. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production is conducted on the site. Marijuana production is prohibited in any outdoor area. K. 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: Documentation demonstrating compliance with the: a. Land use decision and permits. 247 -17 -000645 -CU Page 2 b. Fire, health, safety, waste water, and building codes and laws. C. State of Oregon licensing requirements. 2. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(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. 3. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. 4. Marijuana Control Plan to be established and maintained by the Community Development Department. 5. Conditions of Approval Agreement to be established and maintained by the Community Development Department. 6. This information shall be public record subject to ORS 192.502(17) L. Residency: The resident of the property shall be the owner of the subject property or a holder of the OLCC license for marijuana production facility, provided that the OLCC license applies to the subject property. This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of interest. To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $250.00 and a statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue. Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost. Copies can be purchased for 25 cents per page. NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECE=IVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER. This Notice was mailed pursuant to Deschutes County Code Chapter 22.24. 247 -17 -000645 -CU Page 3 Deschutes County Fite 247 -17 -000645 -CU 20420 Harper Road, Bend ............... . ....:«2-yg1,k\2»:. yd»- ---- . � �) y}� ap..22»< Deschutes County GIS, Sources: Es¢uG$NoAA D > > D D :D U U U U U U p Lr LA Ln LA LA LA t ct lzt ct �t -;T p �o co l0 tD to to U n n n U c -I w p p m p p p '000000 r z z z z z z It I� m m m m m rn 0 0 0 0 0 Orn rn rn rn Cl) v of ql� w w 2--00000 N v p p p p p T c z z z z z { L W W W W W U O_ co m OO co Co p J �- J 0 _ 0 ~ Y p a 0 0� Q c Ir cc 0� W Lu W W W -� F— Z ~ Q V) N z z1-1 0 0 0 i O c-1 l0 -It N c-1 "O Ln m j 4 d' N "O O m 1.0 O O O m m r -I l0 N N N TF W z z w W p u d W F Y z LL OC qp W 0 C7 p J W LL Q U J W Q J I— p a - z z p U U LU J W p N Co U 1- Z) W J= Q Ln H N = W w or 025 ° w W �zz�F-> �g=WinF WWO:QV) Z 2 z a= W W F- U Z z } w CL _ U aw w Y w 0 m -j 0 Z m p REVIEWED LEGAL COUNSEt Mailing Date: Tuesday, January 02, 2018 For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: 247 -17 -000172 -AD, 247 -17 -000173 -SP, 247 -17 -000180 -AD (247- 17-000803-A) APPLICANT: Evolution Concepts, LLC 915 SW Rimrock Way, Suite 201 Redmond, Oregon 97756 APPLICANT'S Ellen Grover, Karnopp Petersen, LLP ATTORNEY: 360 SW Bond Street, Suite 400 Bend, OR 97702 PROPERTY ATP, LLC OWNER: 21330 Young Avenue Bend, Oregon 97701 APPELLANT: Wendie Every 1210 SW 51 st Street Redmond, Oregon 97756 APPELLANT'S Ed Fitch, Fitch Law Group, PC ATTORNEY: 210 SW 5th Street, Suite 2 Redmond, OR 97756 PROPOSAL: The applicant is requesting approval of Administrative Determinations and Site Plan review to establish a marijuana production and processing facility in the Exclusive Farm Use (EFU) Zone. STAFF REVIEWER: ADMINISTRATIVE DECISION ISSUED: Cynthia Smidt, Associate Planner September 22, 2017 APPEAL FILED: September 29, 2017 e. The system shall be maintained in working order and shall be in use. FINDING: The record contains two letters from Mechanical Engineer Jay Castino addressing the mitigation of odor for the property. The initial letter submitted with the application (dated May 8, 2017) and a revised letter (dated November 14, 2017). Although one Board member found the applicant could meet the criteria with an ongoing condition of approval, two Board members disagreed and found that the applicant did not provide enough specificity regarding odor control measures. The two commissioners found that the information submitted by the applicant does not demonstrate an ongoing capability to insure odor emissions will not unreasonably interfere with neighbors' use and enjoyment of their property. D. DCC 18.116.330(8)(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 record contains two letters from Mechanical Engineer Jay Castino addressing the proposed heating, cooling and venting system for the proposed use. One Board member found the applicant could meet the criteria with an ongoing condition of approval. However, two Board members disagreed. The two Board members expressed a desire for additional details specific to the proposal and the property, especially concerning controlling sustained mechanical noise from the heating and ventilation equipment. Between the time of the original application and the final submittal by the applicant, the engineering letter regarding noise went through a number of iterations. None of those iterations, however, included any site-specific information. Thereby, the information provided by the applicant for noise control was insufficient. Likewise, the appellants provided contrary information regarding the noise level from this operation at the adjoining property line. The Board finds that the applicant has not met its burden of demonstrating in a site-specific manner that sustained noise will not become a problem for this operation, relative to adjoining properties. E. DCC 18.116.330(8)(13) Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider, or File Nos. 247 -17 -000172 -AD / 247 -17 -000173 -SP / 247 -17 -000180 -AD (247-17-000803-A) Document No, 2017-773 Page 6 of 8 r^ a� w z w 3 m p v �-- W 0 m U 2 (� w (n y Z Q W Z 0p�0(N 2' Q W Q N �NZ O Q QON LLI w ¢� Q U �QU0 (nvo(no O w 0 C7 Q za m� af U a m F: o Q OM OD w z Z LLl U� LLI U Q N W U � � O U)N F-o ��J w %- Cf) wcr, wW� O ff' F- -'�-w > (n � ry (n(n W N Q �' WWZ F-OM N Z W Q w O O dx O �af�' o z w (n `` I— �— xa NwUaf o Q � of�p J Y J Z C� LLI Ia OW I- z_�Zo w J -MM W z CD w o z zw J M C G W = O O < C) w 0 J Q F- Z W N w Z J O OQ d 0uj^ <UZw ~ CL U �0 Z0 Z Z q�lwiow z UO W N o0'QZ F- H a- N a- i U E a IL K _Ld § ga] �w LLJ 2 §b WO go 0 n �caV)§ ]Nn A183dONd j + � + \ � b _ f to k\ m0_ o ak Elm § in�2a Z � < k � � k W � 2 � § 0 � k cn .6j W N II W IFOomis-i gw- JOHNSON RANCH R( W >n SCHMIDT ROAD p W N HORSEIL ROAD Y COUNTY LINE ROAD o m $� z on D�ipy P� >Fl > p AmK Pn $ N rn A J 0 j Z � o g ^ zn 3 rn � v FOR: 'n E: JOB N0: BILL 1YE ALFALFA COMMUNITY 0ATc:1-8-19 ]15NWIIILL SiftEEi BEND, OR 91103 WELL MAP 54f3B9F959 tyeengrfibenCe6b'e.CNn OR— BT P.A.T. � tyerq;neenng.can SCALE: 1'1000' ALFALFA, OREGON DWC: W<II m°p.dxg t3TATE 4F UiiEQOS�I WATER, WELL REPORT (as reQatred by ORS 537.765) DEC ' 3 1990 WATER RESOURCES DEPT. (sTARTCAW)f 20500 (1) OWNER: Well Number....... Name Address 26245 IiOxaej1 -Rd. City Jend, OR 9 ZIJUstats ZtP (2) TYPE OF WORK: C9 New Well ❑ Deepen 0 Recandttlon ❑ ilharrdon (3) DRILL METHOD ® notary Air ❑ Rotary Mud ❑ Cable ❑ other IN PROPOSED USE: tN Domestic ❑ Community ❑ Industrial ❑ Irrigation ❑ Thermal ❑ igjeetion ❑ Other (5) BOREHOLE CONSTRUCTION: 40 Sp"W Construction approval e No Depth of Completed Well 6 6 d Yes No ij EspWivesused ❑ iA Typo _.. __. - Amount HOLE ORAL Amount Memetaa Prem Ta I Materled From To leacksorpounds How was seal placed: Method ❑ A ❑ B ❑ C ❑ D ❑ E IN Other :p nii r e d A 1Cy - - 13aekfillplacedfrom„....---..ft.to—.a_.<R. material - Gravel plaoed from — . R, to [t Sin of gravel (8) CASING/LINER: DiameterFrom i To if3aai(e ( Steel Plastic Welded Threaded ( n If 11 11 L4 ❑ ® ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Temper iumofwater r+ S Depth A"Wa tMwFoond Finallocattonofshos(s) (7) PERFORATIONS/SCREENS: ❑ Perforations Method_- ❑ screens Type _W_... Material Slot TeWpipa r nm i inn CtalO(t Liner (8) WELL TESTS: Minimum testing time is i hour ❑Pump ❑ Bailer Flosing R] Air ❑ Artesian Yield getlmW Drawdown Drin$10M at Tim _ Temper iumofwater r+ S Depth A"Wa tMwFoond Was a water analysis done? ❑ Yes By whom Dtd any strata contain water not suitable for Intended use? ❑ Too little ❑ saity ❑ Muddy ❑ Odor ❑ Colored i] Omar ___- Depth Ofebmts; __. Depthofebmta: WCATION OF WELL by legal description: County Des . _ - Irttitwie . _- ' ' Lougttude Township % N or S. Rance_ w 14 � ---.-B or W, WM. Sectlon 23 _ SW_..._4 _SE __..-A Tax Lot 1200 Lot_ ----Bleek..._ 3ubdiviston Street Address of Weil (or nearest 26220 Y1i,1.Iard Rd (10) STATIC WATE#t LEVEL: v22_ (t. below lendateme. Date I -012 19.0 Arteaianpressure lb.perswareinch. Date (11) WATER BEARING ZONES: Depth atwhich water was Brat found 629 Fmm To Estimaw Flow Rate SWL _ (12) WELL LOG: Groundelavation - Material Fkom To SWL Date atarted Q tl 2 ? / 4 o Completed (unbandecb Water Wen Constructor Certifications I certify that the work I performed on the construction, alteration, o1 abandonment o this well is in compliance with Oregon well construction standards. Ma used and information reported above are true to my beat knowledge IC. W WC Number 13 7 1 Signed Date 111111 (bonded) Water Well Constructor Certification: I accept responsibility for the construction, alteration, or abandonment wort performed n this well during the construction dates reported above. a1 work perform during this time 1s in oompliance with Oregon wel construction a This report irue a best of my knowtodge aux belief.r W WC Number 1371 Signed __ Date _1 1 111 190 ORIGINAL & Fam copy. WATER REsoURCEs DEPARTMitNT SECOND COPY.- CONSTRUCTOR T141RtD ;COPY - CUSTOMER 9we va :................... ....... ......... ST \'rN. ()I' c)ItEC:C)\ til VH, I. D. I_,ABE1 a! 1 t 121;)87 WA11:11 SUPPLY WELL REPORT START CAR() (as required by ORS 537,165 & OAR 590.205.0210) 2/29/2015 ORIG1\AI, LO(; it j (1) i,A1Vt3 011'�iEli•...__.... _.__ ��+iterR'elll u_ �_ ,. __...___.�._ .� �"�-.___. ...._, ____._..._._._....___.,,�.._.� hist Name IIFNRY Leel Name it-,WIS� _. _ . _ ..222..2 Compin}• Address 2621i1M tl 1 ARU K0AD ._ ..,2....2.22__._ lip _. _ Statt sits. — t N. cwit el Cx!_)_e._e�p:n�tng(2) TtPE OF WORK !-j Cone�ni_0:n �AlleraUntitcontp•letr 2ar� 1r1) #Aharulonmcn! �nn),tetc Sat (2a) PRF AI 1'ER 1'I ION' Dia + From 1'o t„u c �Siit� 111%icc WI:) Ihrd CriOng 1 I L is J 10 El Mate ria! Tran_ . 1 i Ami �acks'lhs Seal (3) D I L i1 . 'I D nX Roimr Air URutat;• Mild 1:1 rote � rnuger LiC ahte Mud Rerersc Rogue [-]C)thet (3) PROPOStia) USE 'Kj Dnme\uc �rrrigation �t"omruuu r) 7Einduitria!'r'omment sal Livesuxk GUct+atrnng 01,hefwal Dln!ection ❑ Other __.._. _. .._. (5)BORF.iiOLLC'ONSTRUC IOVm Spr.t.,tStsnd:irl� (��tachenl,}; Depth ifl'oniplewd Well 7800 it 1100" 11()1.1. SLAL sack% D).1 Flom io Material From It; Amt 't•, .4 .._..; 8 2r 6r.o cicnlatedi.. 6bn0 Ott ( t _. riii,t:d I hm r 4” seal placed Method � r - � �~ r---, F -1A ._.,0 t_ 1r• rD 1 1&AAll placed from ._._.. it to—- it Material ...__ „... i liter pack from 11 to It Material Sim Bplosrves used D'es 'r%,"--1-,-.-1-.1 Amount �__.... (511) AHA\DO111IEN'T USING UNHYDRATED BENTONITI 2122 , N.'r,wd Amount t�lual AmnUm (b)CASING/C.11S'Ftt...... _._.__...n._... �_„._,..._._.�.._.w..._.�...�.a,__ Casing Line Dia + From to riauge Sit Pktc %V1d Ihrd _ « a 780 lis is L I _ J, { lnetde 10utsidc ClUthci Ic,,::diunnfshocts) I,empc4st1i8L1Ycs (ha._. .. _ _.__ Flomto PE (7) RFORA'I•IUNSrSCEEN 'RS 1111 Perforation,, Method Fac:tnn CIA Screens 'f} pe 2212 Material _ 1111 Peri•' C;j6ng•'Sercen ScrI115101 Slot Hof We/ Screen Liner Diaet t--lr,._ Tu_..,. Midth le0h lots _ pr7Ltslie Pert �� roar 5 7AU 780 12± _--3 _ 11 � -� (9) LOCATION OF WELL (legal description) Count) ,u�,crriai. 1++P_i?'%'-'_..S ..- l.; Rarme Pnrl F ._ EAk W!.1 See 21 SW IA nfthe St: I:A la\ 1.0! !'Uo 2.2...2.2.. _._._ .__ _ -,-.-. Tax M,ip Number tot I at 7Ur DAIS of DO 2222 _ .� 2..2..22__ . _ Lang or DMS or DD Co Street address of wtdl ( Nearest address r'r' I4 lC I{ !ARD lt(i:1U ') t (til) STATIC WATER LEVEL ()att S1+t:p,i, + SWtthr gwevrit lt�t—C'm1nnr7/�j�. 17 ETP3 Mme. F!ot\mg Artesian' l Dm lime' tIv A ft•.R 11EARING 70N .S Depth water was tire( fiurnd ewt, Dalt From to l si Fh>+ SWI -051) r SW1,00 i 2/1 1 24! { n 629 780._ .1._ I S 624 i uCi _ (Aarnd 1_Ic%iunn._ .__ _-- -------- ------ ------ Date Static!' 1,,+n16 Completed- tontiondcd) W9ter Well Constructor Crrtithation I certif% that the work I performed on the construimon deeivnmg, alteration. or it._ Thisr� rk r�r ort �rl�fl� flied to the Department; -- i--- _- _ {- - the odginal "led document Is axtached ....L......_.-_.. .A .. _i_. ,_ 2211, 3 .. .1._,_.. 1111.-_f �..4 i.;�.l. ,;i1'nl'i•'..' a_... ................»_....... i (8) tl'I4A, TEST,': �Iininiunt testing time is t hour i ! Pump �� Miller Q :�4r r' Flowing Artesian Yl Au Rat,nun _Urat)duwn Drift - tem Y„ im i60 dj�y+tti ._ [))nptton hr � 7 t r cmperaturc >6 'P i..ib aitaleric L. iYes R) Waterquda%CnIKarr»' ��YestdcsenMhetna)(DSamoum I. mm Io 17c.cnr ton_._ Amouul-` r.of ,t` _- p S!znr:i (bonded) Nater K til Constructor Cerrrrrration 1 iceept regponxQnut} fur the construction, decpenu18, altcrstion. or abandonment c ork per(iwated ort this ++ell uunng the :onAru,,ion date< rer orted -bone All %%%,rk perfouned during tills time 1%.In eumpliance with Oregon %rater Supp!} %%ell .ronsiruction standards •this replitt a true in the best of my kriowletige and hchef Liven+e Number t js Date 2:29,,;.01" Signed \Wlt.l 1.11+•[ It(1Itki AIKL (l -Al dl _ 1211_._ _ ,. . _ _. Coulaci Intiitnptmnall Unu4��ltken i3» Utiti)INAI1.-WAfl'R1t(ui('RCFSf)FPARCMFNI TilIS ItPpr�tt t +NLIS'f w-., St;[3".11.1'1[ D TU'FfIr. WA11:R RPSUt R(i S DI PAR'fMF)c 11ti'ITIIIN tt! 1).AVS 0I t (AMPI I 110NOI AoRK fonu \ cision Well log NDese-52 t 11"1 dviterbcd tlasall Nn Rcuuns 660 1 619 t turnh!\ no rcpun+ 703 Basalt t u ltturns 719 Send Clout. nu returns � , 7 t 780 _. . i r,.... i .__ _-- -------- ------ ------ Date Static!' 1,,+n16 Completed- tontiondcd) W9ter Well Constructor Crrtithation I certif% that the work I performed on the construimon deeivnmg, alteration. or it._ Thisr� rk r�r ort �rl�fl� flied to the Department; -- i--- _- _ {- - the odginal "led document Is axtached ....L......_.-_.. .A .. _i_. ,_ 2211, 3 .. .1._,_.. 1111.-_f �..4 i.;�.l. ,;i1'nl'i•'..' a_... ................»_....... i (8) tl'I4A, TEST,': �Iininiunt testing time is t hour i ! Pump �� Miller Q :�4r r' Flowing Artesian Yl Au Rat,nun _Urat)duwn Drift - tem Y„ im i60 dj�y+tti ._ [))nptton hr � 7 t r cmperaturc >6 'P i..ib aitaleric L. iYes R) Waterquda%CnIKarr»' ��YestdcsenMhetna)(DSamoum I. mm Io 17c.cnr ton_._ Amouul-` r.of ,t` _- p S!znr:i (bonded) Nater K til Constructor Cerrrrrration 1 iceept regponxQnut} fur the construction, decpenu18, altcrstion. or abandonment c ork per(iwated ort this ++ell uunng the :onAru,,ion date< rer orted -bone All %%%,rk perfouned during tills time 1%.In eumpliance with Oregon %rater Supp!} %%ell .ronsiruction standards •this replitt a true in the best of my kriowletige and hchef Liven+e Number t js Date 2:29,,;.01" Signed \Wlt.l 1.11+•[ It(1Itki AIKL (l -Al dl _ 1211_._ _ ,. . _ _. Coulaci Intiitnptmnall Unu4��ltken i3» Utiti)INAI1.-WAfl'R1t(ui('RCFSf)FPARCMFNI TilIS ItPpr�tt t +NLIS'f w-., St;[3".11.1'1[ D TU'FfIr. WA11:R RPSUt R(i S DI PAR'fMF)c 11ti'ITIIIN tt! 1).AVS 0I t (AMPI I 110NOI AoRK fonu \ cision February 28, 2018 Deschutes County Board of County Commissioners 1300 NW Wall St. Bend, OR 97703 RE: 247-18-000049-A; Appeal of 247 -17 -000831 -AD Administrative Determination for a Marijuana Production Facility at 25890 Alfalfa Market Rd. Dear Commissioners, Looking at just hard numbers, you might think that the marijuana grows in have had little to no negative effect on property values in Alfalfa. But I think they will. Let me illustrate. Recently, I spoke with a friend who is looking for 40 to 120 irrigated acres. I talked to him about what might be available in Alfalfa, he told me that he really didn't want to live there because of the all the cannabis grows. You see, the same friend was at my house little over a year ago helping me in my barnyard with something after dark. When a nearby marijuana grow had all their lights on. He recounted the incident and said, "I remember standing there with you and it was just like daylight at your place. And I can't compete with their money." I know of another instance, where a buyer came to look at a property for sale in Alfalfa and decided against it once they saw that it was next to a pot grow. It did sell eventually --to another cannabis grower. It is not hard to imagine a time when no one BUT cannabis growers will want to be here. Is this really what we want for rural Deschutes County? Just row after row of greenhouses on what was once open space? While the growers around me are good neighbors, the very nature of their businesses -with their requirements for lights, security systems, fences and other things -make our once pastoral community feel more like a commercial or industrial zone. I have a hard time believing that row after row of greenhouses is what the LCDC originally intended for EFU zones and I believe that eventually, it will affect our property values. Consider this: what happens if the marijuana market is flooded and they start going out of business? Who will want to buy property to farm when they have to tear down all those greenhouses? And who will want to buy property next the abandoned grow operations? The more of them you let in, the less attractive our area is to traditional buyers. I urge you to consider doing what the City of Bend did about vacation rentals. Decided we have enough and say no more. This might also help the growers you've already allowed in by keeping supply levels down. Sincerely, Jean Nelson 62939 Johnson Ranch Rd. Bend, OR 97701 1i 1 17-14-22 00 01200 25890 Alfalfa Market Road Central Oregon Irrigation District ("District") serves this property with a total of 37.0 acres of Irrigation water (surface delivery) provided under State issued primary water right certificate #83571 (priority date 10/31/1900) and supplemental certificate #76714 (priority date February 28, 1913). These certificates allow delivery during the irrigation season of April 11t through October 311t and cannot be used for irrigation during the winter months. Use of COID winter stockwater runs for irrigation purposes is not allowed. An additional source (not from COID) of water is necessary to irrigate November 11t through March 311. Water is currently delivered at a rate of up to 6 gallons per minute per acre. If crop is proposed to be grown inside a structure, land -user must allow COID annual access to the structure to document beneficial use of the COID water right. A Plot Plan is required to assist COID in determining if a proposed structure will be located on the COID water right. Structures built on top of a mapped water right for any purpose other than starting/growing plants during the irrigation season is not allowed. Water rights are subject to the laws and rules of the State of Oregon, the federal government, and the policies of the District. 1055 SW Lake Ct. Redmond, OR 97756 541-548-6047 coid.org