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2018-335-Minutes for Meeting June 04,2018 Recorded 8/10/2018Recorded in Deschutes County CJ2018-335 Nancy Blankenship, County Clerk Cominissioners' Journal 08/10/2018 10:57:18 AM 1300 NW Wall Street, Bend, Oregon (541) 388-6570 IMG\ MONDAY, June 4„ 2018 1I11I111II11I111I11I111I III I IIIIII 2018-335 FOR RECORDING STAMP ONLY BARNES SAWYER ROOMS 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 Keith, Board Executive Assistant. No representatives of the media were in attendance. CALL TO ORDER: Chair DeBone called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: Susan Gregory: Resident of Deschutes River Woods presented information of the Deschutes River Woods area and neighborhood by showing a presentation of photos and maps. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 1 OF 9 HENDERSON: Move approval. BAN EY: Second. VOTE: HENDERSON: Yes. BAN EY: Yes. DEBONE: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Board Signature of Resolution No. 2018-017, Budget Adjustment - Administration 2. Consideration of Board Signature of Resolution No. 2018-020, Budget Adjustment Victims Assistance 3. Consideration of Board Signature of Resolution No. 2018-021, Budget Adjustment - Risk Management 4. Consideration of Board Signature on Letter Thanking Susan Tunno for Service on the Planning Commission 5. Consideration of Board Signature on Letter ReAppointing Steve Swisher to the Planning Commission ACTION ITEMS 6. Consideration of Signature of Document No. 2018-230, a Notice of Intent to Award Contract for Paving of Erickson Road: US20 to Dickey Road Cody Smith, County Engineer reviewed the project request for proposals with four bids received. The lowest responsive bid was for High Desert Paving and was under the engineer's estimate. BAN EY: Move approval HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 2 OF 9 7. Consideration of Board Signature of Document No. 2018-371, Fund Exchange Agreement with Oregon Department of Transportation for Deschutes Market Road and Erickson Road Paving Cody Smith, County Engineer presented and explained the contract and project as an annual agreement with ODOT. BAN EY: Move approval HENDERSON: Second VOTE: BAN EY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried 8. Consideration of Board Signature of Document No. 2018-258, Grant Agreement with Heart of Oregon Corp. Timm Schimke, Director of Solid Waste explained this contract for litter control and help with the Firefree programs with workers through the Heart of Oregon Corp. BAN EY: Move approval HENDERSON: Second VOTE: BAN EY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 3 OF 9 9. PUBLIC HEARING: Continued Shepherd Church Will Groves, Community Development Department presented the procedures for the continued public hearing. Adam Smith, Assistant Legal Counsel reviewed the timeline, process, and outstanding issues with this hearing reopened. Mr. Smith reviewed the procedures regarding the submitted application. There could be a perceived modification of the application due to items submitted by the applicant. The number of events proposed is conflicting from the original application. Mr. Daniel Dalton, representing the applicant John Shepherd noted they are not seeking to modify the application. The church is a venue and the events include activity where on Friday they come set up, Saturday the wedding occurs, and Sunday is the cleanup day. The applicant is not looking for a campground. Commissioner Baney asks for clarification of the language of the application. Question raised whether this would be considered a three-day event verses the one -day event as noted in the application. The applicant asks for the set up and take down days to be included in the one -day event of the wedding. Regarding the camping question there aren't hookups for water and electrical. The camping may have occurred in the past but they will not offer that in the future. Commissioner Henderson noted information in the record that states there is free tenting on the grounds during the wedding. Mr. Dalton notes they are only asking for the wedding approvals and not modifying the application. Mr. Dalton stated in the future if they need camping approval they will come to the Board at that time. Commissioner Baney asked if Mr. Shepherd is requesting 30 one -day events. John Shepherd noted the application is for 30 one -day events even though the wedding includes set up take down and rehearsal. Mr. Shepherd stated if there are limits that require the set up and take down as separate events his limit of 30 would restrict him. The Board looks for clarification on the definition of event. In the evidence there is the offer of the free tent camping and RVs. The applicant is ok with taking the camping concept away but it would be better for people to crash on site rather than crash on the road. Mr. Shepherd noted it is offered at no charge and why shouldn't he be allowed to offer it BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 4 OF 9 for hospitality. Commissioner Baney noted her challenge is that the testimony and information in the record doesn't match up with what she is being told. The event is advertised on their website that the venue is available for three entire days and that reads different than a set-up, a take- down and a wedding. Mr. Shepherd noted weddings are allowed in churches by state law and feels they are within their rights. Commissioner Henderson asks for a copy of the application. Commissioner DeBone noted the safety and environment concerns and points out the domain of the County is to review the traffic, water, waste, and safety of the events. Mr. Dalton noted for purposes of today's application is the wedding set-up, take-down and wedding to be considered as one event and that the applicant is taking camping off the table. Mr. Groves noted there was a meeting with Mr. Shepherd and the County department heads. Mr. Shepherd was willing to limit the outdoor gathering to 30 one -day events. Mr. Groves noted in the recollection with the department heads the public would be on-site for these separate dates when considering needs to address traffic, sanitation, sewer, and water. Commissioner Baney noted this activity would be similar as other events when looking at days of events. Commissioner Henderson requested a printed copy of the application. Commissioner DeBone spoke on code enforcement, environmental health, and safety. Mr. Smith noted the issue of the infrastructure which was built as a single-family home not to support these types of events. The members of the public on site is the issue when looking at the structure. Carol MacBeth, attorney from Central Oregon LanclWatch presented testimony. She noted the Shepherdsfield website is currently advertising camping and recreational vehicle hookups and three-day events. She spoke on destination resorts that allow this type of event. Ms. MacBeth noted there is no question this is a three-day event and is advertised as a commercial event venue. Ms. MacBeth stated the religious land use law does not protect businesses. The evidence is overwhelming that this is a business and not a church. BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 5 OF 9 Mr. Groves and Mr. Smith reviewed the steps for proceeding. The application is approximately 200 pages. The application is unclear and has outdated information. Mr. Shepherd noted the most recent application has no frequency or seasonality restrictions. Commissioner Baney noted the original application was based on church activity. Mr. Shepherd noted the 30 event application was a negotiation due to facilities requirements. Mr. Smith noted County staff are struggling with the concerns of the infrastructure issue. Mr. Dalton asked for clarification on the ask of the Board. Mr. Shepherd is agreeing to ask for the 30 events which includes a three day event per each wedding. Mr. Dalton noted the applicant is not asking for camping and what is in the record doesn't reflect what is he is asking for. Mr. Shepherd noted there are no camping hookups. Mr. Smith noted the question would be how many days members of the public are on site. The Board commented on the definition of public and commercial activity. Mr. Dalton spoke on churches and weddings and LUBAs decisions that do not matter here. Commissioner Baney noted in the application there are no mentions of a church or religious activity which causes challenge of what the Board has in front of them. Ms. MacBeth commented on the statement that LUBA's opinion doesn't matter. Ms. MacBeth noted the land use laws do matter. Commissioner Henderson inquired on the evaluation of the Code and church activity. Mr. Smith noted the confusion with the application and whether it has been modified. Commissioner Henderson feels there may be an enforcement issue to consider. Mr. Smith recommends going back to the code provisions regarding churches and cemeteries to safely provide water, sewer, and traffic for a church which dictates the type of public facilities are required for the event. Are members of the public staying overnight? County staff are not questioning religious liberties but looking at adequate public facilities. RECESS: At the time of 11:41 a.m., a recess was taken to allow for review of the printed copy of the application to be presented to the Board and the meeting was reconvened at 11:58 a.m. BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 6 OF 9 Commissioner DeBone asked for explanation of the document. Mr. Groves noted the infrastructure concerns. Mr. Smith noted there have been four modifications to the application by Mr. Shepherd over the past year. Commissioner DeBone noted the first step is to rule on whether this application has been modified. Commissioner Baney spoke on the activities that occur bringing the public onto the property. County staff believe the changes to the application do meet the definition of a modification. Commissioner Baney noted the modification may give the Board clarification on what the actual ask is. Commissioner DeBone feels it is also a revision to the original application. Commissioner Henderson reviewed the questions on the application and the whole thing shows concern that if this is a modification there hasn't been clarification on the restrictions. Commissioner Baney prefers there is clarity of what is being requested. Mr. Smith noted the applicant could proceed with the 30 one -day events or Mr. Shepherd could reapply if that is not what their intention is. Commissioners DeBone and Baney do see this as a modified application. Commissioner DeBone noted the home-based church and the infrastructure concerns. Commissioner DeBone stressed the importance of public health and safety in this type of event application. Commissioner Henderson does not see this as a modified application. Commissioner DeBone noted the Board's split decision to acknowledge the modification of the application is supported 2:1. Commissioners Baney and DeBone noted the importance of clarity of the application. BAN EY: Moved the Shepherd application requires a modification DEBONE: Second VOTE: BAN EY: Yes HENDERSON: No DEBONE: Chair votes yes. Motion Carried BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 7 OF 9 RECESS: At the time of 12:31 p.m. a recess was taken and the meeting was reconvened at 12:48 p.m. Mr. Smith spoke with the applicant about the options to proceed. Mr. Dalton noted the application has been modified and they are prepared to answer any other questions and addressed the question of whether this is an application from an institution or an individual. Mr. Smith noted the modification of the application requires further analysis. Mr. Dalton spoke on land use regulations and religious institutions and if they modify the application, they ask they could ask to include the 501 c3 approval. Mr. Smith recommends the Board proceeds as with any land use hearing. Ms. MacBeth responded to clarify LanclWatch has no position on the church but is saying this is a wedding event venue and not relevant to a church or religious belief. The basis of the applicants arguments were decided and determined by LUBA already. Ms. MacBeth commented this is a non-profit church that is promoting events for profit. Regarding the timeline to proceed is to leave the record open, the Board supports the standard 7-7-7 timeline. Mr. Groves spoke on residential uses and activities that can happen at a house. The timeline will be shorter due to agreement of the appellant and applicant and the final argument would be due by June 19th at 5:00 p.m. OTHER ITEMS: None were offered. BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 8 OF 9 Being no further items to come before the Board, the meeting was adjourned at 1:22 p.m. DATED thiD Day of, L -L 2018 for the Deschutes County Board of Commissioners. ATTEST:, 4 PHILIP a VICE C IR TAMMY BANEY, COMM SIONER BOCC BUSINESS MEETING JUNE 4, 2018 PAGE 9 OF 9 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, JUNE 4, 2018 Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend This meeting is open to the public. To watch it online, visit www.deschutes.org/meetin s. Business Meetings are usually streamed live online and video recorded. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. 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 1. Consideration of Board Signature of Resolution No. 2018-017, Budget Adjustment - Administration Board of Commissioners Business Meeting Agenda Monday, June 4, 2018 Page 1 of 3 2. Consideration of Board Signature Resolution No 2018-020, Budget Adjustment Victims Assistance 3. Consideration of Board Signature of Resolution No. 2018-021, Budget Adjustment - Risk Management 4. Consideration of Board Signature on Letter Thanking Susan Tunno for Service on the Planning Commission 5. Consideration of Board Signature on Letter ReAppointing Steve Swisher to the Planning Commission ACTION ITEMS 6. Consideration of Signature of Document No. 2018-230, a Notice of Intent to Award Contract for Paving of Erickson Rd: US 20 to Dickey Rd - Cody Smith, County Engineer 7. Consideration of Board Signature of Document No. 2018-371, Fund Exchange Agreement with Oregon Department of Transportation for Deschutes Market Road and Erickson Road Paving - Cody Smith, County Engineer 8. Consideration of Board Signature of Document No. 2018-258, Grant Agreement with Heart of Oregon Corp - Timm Schimke, Director of Solid Waste 9. PUBLIC HEARING Continued: Shepherd Church - William Groves, Senior 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 Board of Commissioners Business Meeting Agenda Monday, June 4, 2018 Page 2 of 3 Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS. Additional meeting dates available at www. deschutes.org/meetingcalendar Meeting dates and times are subject to change. All meetings take place in the Allen Room at 1300 NW Wall St. Bend unless otherwise indicated. If you have question, please call (541) 388-6572. Board of Commissioners Business Meeting Agenda Monday, June 4, 2018 Page 3 of 3 REQUEST TO SPEAK DATE: G /q I Ir SUBJECT: Dt&O „ 0f h &--fe 5 R 6m 00 . NAME (please print): ADDRESS: ) C - PHONE: SLA l 1 0 35 EMAIL: % V% G B, If you plan to submit written documents as a part of your testimony, please give a copy to the Board's Clerk so that they can be included as part of the record. 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Al dC)S .1✓ spuod .zo3 Ae10 . [aA2JE) zg pUes ® NWdela}ew p[d . IIoS doj_ uxnluxaxd "Woo plaua8 ollgnd pepoddng xagwaW 17[31�oq 11;oxduou a si VNMMO LEti6-801-L6 2JO `PuaB I 6Eti6 X09 Od uol;eloossV poogaogqBlaN spooM aaAIH selmlosap &'eUNUp'MMM J!SIA aseald uoitewioiui axoua xod sassautsnq 2upioddns osag4 gjIm u0140unfuoo ui 81 uo34-etoossv poouzogg2ioN spoorn aaAig sa4nuasQa au4 Xq � Xsopnoo e sU paptAoad si dm s[qL 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 June 4, 2018 DATE: May 29, 2018 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: PUBLIC HEARING Continued: Shepherd Church RECOMMENDATION & ACTION REQUESTED: Conduct continued public hearing. BACKGROUND AND POLICY IMPLICATIONS: By Order 2018-041, the BOCC agreed to an applicant request to reopen the record in order to take additional testimony on File Nos. 247 -17 -573 -AD and 574 -SP. Notice was provided to the parties and the present hearing was scheduled. While testimony regarding the Religious Land Use and Institutionalized Person Act was the stated reason for the reopened record, no limitation on the types of testimony and/or evidence was placed on this continued hearing. The written record following the prior, April 23, 2018 hearing is included in support of this hearing. FISCAL IMPLICATIONS: None ATTENDANCE: Will Groves, Legal William Groves From: Adam Smith Sent: Tuesday, May 29, 2018 10:23 AM To: 'Paul Dewey' Cc: 'Carol Macbeth'; William Groves; Peter Gutowsky; Nick Lelack Subject: RE: Shepherdsfield Church Categories: Yellow Category Paul & Carol, Paul and I discussed my May 22 email last week, but COLW has not yet formally responded. Specifically, I was hoping COLW would articulate how it was harmed or otherwise cite DCC or statutory provisions supporting its argument that the County would be committing a procedural error if allowing John Shepherd to change his mind after previously withdrawing his application. If I do not hear back from COLW, the County will be forced to assume that COLW consents to the application moving forward. It would be a shame for all involved parties to expend resources preparing for and attending the hearing on June 4th only for COLW to again raise a procedural objection during the hearing. I noted COLW's initial concern to John Shepherd, but have not yet heard from his attorney on their intentions. If COLW does not consent to the application proceeding, he might decide to simply re -apply to avoid the procedural objection and thereby delay conclusively resolving the issue. Thanks for clarifying COLW's intentions. -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smith@deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. -----Original Message ----- From: Adam Smith Sent: Wednesday, May 23, 2018 8:33 AM To:'Paul Dewey' <paul@deweylaw.net> Cc: Carol Macbeth <carol@colw.org>; William Groves <William.Groves@deschutes.org>; Peter Gutowsky <Peter.Gutowsky@deschutes.org>; Nick Lelack <Nick.Lelack@deschutes.org> Subject: RE: Shepherdsfield Church Paul, Thanks for the update. I look forward to hearing from you. Safe travels. -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smith@deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. -----Original Message ----- From: Paul Dewey <paul@deweylaw.net> Sent: Tuesday, May 22, 2018 8:49 PM To: Adam Smith <Adam.Smith@deschutes.org> Cc: Carol Macbeth <carol@colw.org>; William Groves <William.Groves@deschutes.org>; Peter Gutowsky <Peter.Gutowsky@deschutes.org>; Nick Lelack <Nick.Lelack@deschutes.org> Subject: Re: Shepherdsfield Church Adam: Been in Pendleton federal district court all afternoon and driving all the rest of the day and still at it so haven't looked at this at all. Later tomorrow PM. Paul Sent from my iPhone > On May 22, 2018, at 2:47 PM, Adam Smith <Adam.Smith@deschutes.org> wrote: > Paul & Carol, > I talked with Carol earlier this morning to keep COLW in the loop on the Shepherdsfield Church matter. I also left Paul a voice message hoping to discuss the situation further. > Last week, I discussed LUBA Order No. 2018-007 with Dan Dalton, John Shepherd's attorney. As you know, LUBA provided the County options: "remand is necessary for the county to adopt an ESEE analysis that either does not rely on the mere threat of RLUIPA litigation, or that actually evaluates whether the existing Goal 5 program is inconsistent with the RLUIPA Equal Terms or Substantial Burden requirements." Following those conversations, Mr. Shepherd agreed to withdraw his application to give the County time to determine next steps on the Wildlife Area Text Amendment. > However, Mr. Shepherd subsequently indicated an intention to proceed immediately with a federal RLUIPA lawsuit against Deschutes County. As you know, the County has been working diligently to avoid such a lawsuit. To date, the County has agreed with COLW's assertion that we have not violated RLUIPA when it comes to Shepherdsfield Church. But RLUIPA case law is inconsistent and marred by circuit -splits on a number of issues, and the County has not been willing to risk the taxpayers' coffers to make new federal RLUIPA case law on a matter of first impression. Instead, it seems prudent to rely on Oregon's unique land use system to conclusively address the dispute because it is more inclusive, cheaper for all parties and more expedient, in theory at least. > In the face of Mr. Shepherd's renewed litigation threats, I argued that he should instead consider proceeding with the pending application because that application is the quickest way to determine if the un -amended County Code violates RLUIPA. The RLUIPA issue has never been fully briefed before the Board or LUBA. Instead, LUBA determined a year ago that the RLUIPA issue was "undeveloped." And, LUBA agreed that the recent facial challenge to the text amendment is best understood as an ESEE dispute and declined to address the RLUIPA issue. The RLUIPA issue needs to be addressed before Deschutes County, John Shepherd, and COLW can end this multi-year dispute. Again, it seems prudent to rely on Oregon's land use system to do so. > Mr. Shepherd ultimately agreed and elected to withdraw his previous withdrawal. The Board of County Commissioners thereby issued the attached order yesterday afternoon re -opening the record so parties can brief the RLUIPA issue. I suspect that both the Equal Terms provision and the Safe Harbor provision will need to be addressed by the parties. Following the Board's decision, I immediately called Carol last night to explain what had transpired over the preceding week. > I again called Carol this morning. Based on our conversation, it appears that COLW is opposed to the County continuing to process Mr. Shepherd's current application because of the earlier withdrawal. I could not find any DCC or ORS provisions that prohibits Mr. Shepherd from changing his mind a couple of days later, and it is hard to image that COLW was harmed by his decision to do so. If I am wrong and COLW was harmed, or if you think a code provision or case law applies, please let me know. It should be noted, however, that Mr. Shepherd may simply re -apply in the near future because the RLUIPA issue will still not be addressed. > My voice message last night, my phone call this morning, and this email are all being provided as a courtesy. appreciate that tensions are high and COLW is tired of spending time and resources on this matter. County staff shares those sentiments. And John Shepherd likely does as well. But the dispute will continue until the RLUIPA issue is resolved, and unnecessary procedural arguments are delaying the inevitable and make it less likely that the parties can rely on Oregon's land use system to address the dispute. > Please let me know ASAP if this email changes COLW's position. County staff is trying to schedule the new public hearing before the Board for June 4, 2018. > Thanks, > -Adam > D. Adam Smith > Deschutes County Assistant Legal Counsel > 1300 NW Wall St., Suite 205 > Bend, OR 97703 > Phone: (541) 388-6593 > Fax: (541) 617-4748 > adam.smith@deschutes.org<mailto:adam.smith@deschutes.org> > THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. > <Order No 2018-041.pdf> William Groves From: William Groves Sent: Tuesday, May 29, 2018 8:04 AM To: 'Carol Macbeth' Subject: RE: 247 -17 -000573 -AD, 574 -SP Comments from applicants Attachments: New attacks and new questions; Re: Camping and Multi -Day events; Re: June 4th Hearing @10am; Re: June 4th Hearing @10am; Re: Shepherdsfield; Continue with vote on my church application; Request for application withdrawl; 2nd reply to COLW; Re: Arguments and evidence; Arguments and evidence; Question on new evidence submission Hi Carol, I did a search for messages originating from Dan or John in the past 30 days. Those are attached. Let me know if there is anything else I can do to help. Thanks, Will Will Groves Senior Planner, CFM 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 ( Bend, Oregon 97708 Tel: (541) 388.657.8 1 www.deschutes.org/cd 1103 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Carol Macbeth <carol@colw.org> Sent: Monday, May 28, 2018 8:48 AM To: William Groves <William.Groves@deschutes.org> Subject: 247 -17 -000573 -AD, 574 -SP Comments from applicants Hi Will, Can you please send a copy of any comments received from the applicants or their representative in the past month? Thanks! Best regards, Carol Carol Macbeth Staff Attorney William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Thursday, May 24, 2018 8:01 AM To: William Groves; Dan Dalton; Adam Smith; Peter Gutowsky; Tony DeBone; Phil Henderson; Tammy Baney Subject: New attacks and new questions In light of the new malevolent attack from Landwatch, and the mixed messages I'm getting from the County, I thought it important that the Commissioners be aware of these developments preceding the June 4th hearing so I'm including them on this discussion. Will, yesterday you sent me a threat of code enforcement. In response, I asked you a couple relevant questions. Since I haven't heard back, I wanted to re -ask the questions and cc the County Commissioners. They need to be aware of Landwatch's latest attack and how county legal is responding. Frankly, I'm confused. Earlier in the week, Adam Smith told my attorney, Dan Dalton, that the county had no interest in pursuing code enforcement while this sorts out. Then yesterday I get an email threatening code enforcement. Also, earlier in the week Adam Smith told my attorney that, if need be, both sides would enter into a "friendly Federal lawsuit" to resolve the county's unconstitutional ban on churches as quickly and easily as possible. Then, a day later on May 21 st, Adam wrote me "county staff will likely defend such a case vigorously." Which is it? Very confusing. Here are my questions again from yesterday, in response to County's threat of code enforcement due to the fact that a wedding rehearsal precedes the wedding ceremony: Will, since this question has never been raised before, would you please answer a question for me? In that churches are allowed, by the state, to engage in religious activities, such as weddings, and, in that every wedding has a rehearsal gathering the day before associated with it, is it the position of the county to consider a wedding and rehearsal as one event or as two separate events? If the county considers them two events, then we will simply ask the Commissioners to issue our church permit with no frequency restriction, as per state law and as per RLUIPA equal access requirements. One other question: is there a county code prohibiting people from staying overnight on private property in an RV (without any hookups), as long as their is no charge? Please remember, Will, that the only reason my current permit imposes seasonal and frequency limitations on my church gatherings is because the planning department failed to read my new permit application and failed to incorporate the Board's decision to impose no season and frequency limitations, and mistakenly "cut and pasted" the old criteria from an earlier and defunct application. Otherwise, there would be no frequency concerns about wedding events and wedding rehearsals. There are no laws, state or county, that require seasonal or frequency limits. Furthermore, County has not imposed similar limits on similar churches in EFU, such as Ramona and Dave Hulick's Cowboy Church in Redmond, recently permitted on EFU. I hope the Board will sort out this mess at the June hearing. Sincerely, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Wednesday, May 23, 2018 12:11 PM To: William Groves Cc: Adam Smith; Dan Dalton (ddalton@daltontomich.com); Peter Russell; Nick Lelack; Todd Cleveland Subject: Re: Camping and Multi -Day events Will, since this question has never been raised before, would you please answer a question for me? In that churches are allowed, by the state, to engage in religious activities, such as weddings, and, in that every wedding has a rehearsal gathering the day before associated with it, is it the position of the county to consider a wedding and rehearsal as one event or as two separate events? If the county considers them two events, then we will simply ask the Commissioners to issue our church permit with no frequency restriction, as per state law and as per RLUIPA equal access requirements. One other question: is there a county code prohibiting people from staying overnight on private property in an RV (without any hookups), as long as their is no charge? Thanks, John On Wed, May 23, 2018 at 10:03 AM, William Groves <William.Grovesgdeschutes.org> wrote: John, It has come to our attention that at least three scheduled weddings at your venue this summer are advertising free tent camping and two advertise RV hookups (see attached). Attached is the current agreement. Per paragraph 5, you are supposed to "comply with all conditions of 247- 16 -000 -159 -SP and 161 -AD for any church or Church Accessory Events, including weddings, on the property." Allowing camping and multi -day events in association with weddings was not included in that decision and violates the agreement. Specifically, the SP/AD includes the following requirements: #10. "The property shall only be open to event participants one weekend day per 7 -day period, beginning on May 15 of each year and ending on October 15, and shall not exceed 18 days per calendar year." #13. Any outdoor use of the property by non-residents shall count as an "event." Also note that one of the attached weddings includes a Friday "Welcome Party" which is a multi -day, non - weekend event. Deschutes County urges you to comply with the terms of the agreement and not operate an unpermitted campground or multi -day, non -weekend wedding events on your property. Failure to comply with the agreement puts the County in an unfortunate position that may lead to code enforcement initiated by the County or a third party. Please confirm your intent to comply with the agreement. Thanks, Will Will Groves Senior Planner, CFM 117 NVV Lafayette Avenue Rend, Oregon 97703 PO Box 6003 ( Rend, Oregon 97709 TeL (541) 398.6519 1 www.deschutes.org/cd 110 (3 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. William Groves From: Dan Dalton <ddalton@daltontomich.com> Sent: Wednesday, May 23, 2018 11:22 AM To: William Groves; Adam Smith Subject: Re: June 4th Hearing @10am Follow Up Flag: Follow up Flag Status: Flagged And thank you very much for accommodating my schedule Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 114 F: 313.859.8888 E: ddaltonCa)daltontomich.com www.daltontomich.com www.attornevsforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: William Groves <William.Groves@deschutes.org> Date: Wednesday, May 23, 2018 at 1:07 PM To: Dan Dalton <ddalton@daltontomich.com>, "Carol Macbeth (carol@colw.org)" <carol@colw.org>, John Shepherd <shepherdsfield@gmail.com> Cc: Adam Smith <Adam.Smith@deschutes.org> Subject: June 4th Hearing @10am All, I've mailed notice for the June 4th hearing at 10am. Let me know if you have any questions. Thanks, ►� Will Groves I Senior Planner, CFM 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd Disclaimer. Please note that the information in this email is on informal statement made in accordance with UCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. William Groves From: Dan Dalton <ddalton@daltontomich.com> Sent: Wednesday, May 23, 2018 11:22 AM To: William Groves Cc: Adam Smith Subject: Re: June 4th Hearing @10am Follow Up Flag: Follow up Flag Status: Flagged When do you want the supplemental argument and when will you have the additional questions for us? Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 114 F: 313.859.8888 E: ddalton(o)daltontomich.com www.daltontomich.com www.attorneysforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: William Groves <WilIiam.Groves@deschutes.org> Date: Wednesday, May 23, 2018 at 1:07 PM To: Dan Dalton <ddalton@daltontomich.com>, "Carol Macbeth (carol@colw.org)" <carol@colw.org>, John Shepherd <shepherdsfield@gmail.com> Cc: Adam Smith <Adam.Smith@deschutes.org> Subject: June 4th Hearing @10am All, I've mailed notice for the June 4th hearing at 10am. Let me know if you have any questions. Thanks, Will Will Groves { Senior Planner, CFM 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 "^ Tel: (541) 388.6518 1 www.deschutes.org/cd Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. IMM The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. William Groves From: Dan Dalton <ddalton@daltontomich.com> Sent: Tuesday, May 22, 2018 9:38 AM To: Adam Smith Cc: William Groves Subject: Re: Shepherdsfield Follow Up Flag: Follow up Flag Status: Flagged June 4 works for me. Looking forward to receiving the questions and responding. Dan Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 1 F: 313.859.8888 E: ddalton@daltontomich.com www.daltontomich.com www.attorneysforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: Adam Smith <Adam.Smith@deschutes.org> Date: Tuesday, May 22, 2018 at 12:35 PM To: Dan Dalton <ddalton@daltontomich.com> Cc: William Groves <William.Groves@deschutes.org> Subject: Shepherdsfield Dan, The County is working towards having the new public hearing on June 4. Does that date work for you? Please respond to both me and Will Groves (CCed). Also, the County has a very short window to make to decide this matter. We may need to ask for an extension in the future. But, we can cross that bridge when we come to it. In the meantime, County staff is likely going to prepare a list of questions for the parties prior to the public hearing. We are preparing the list only to help focus the issues, and the parties of course are free to ignore our proposed questions and/or brief other issues as they see fit. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smith(a)deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT, IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. A I i..i.o,! The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mirnecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 21, 2018 1:16 PM To: William Groves Cc: Dan Dalton; Adam Smith Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June 13th? Thanks, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Thursday, May 17, 2018 3:24 PM To: William Groves; Dan Dalton; Adam Smith Subject: Request for application withdrawl Follow Up Flag: Follow up Flag Status: Flagged Hey, Will. So, my attorney, Dan Dalton, has been speaking with Adam Smith about LUBA's recent decision to reverse the County's teat revision allowing churches. Adam suggested to Dan that I withdraw the application since, under the new circumstances, the Commissioners now have no choice but to deny it. This makes sense to me and I hereby request that the application be withdrawn. Sincerely, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 7, 2018 4:55 PM To: William Groves Subject: 2nd reply to COLW Attachments: 20180503_171657[1] jpg; 20180S03_171635[2]jpg; Shepherd 2017_437_notarized.pdf, Gmail - returning your call.pdf; PDF response to COLW.pdf Dear Will, please find attached my written response to COLW latest attack. Please also find attached four documents: 1. A photo of the original cattle staging area where the previous owner penned, watered and fed the cattle. 2. A second photo of the same. 3. Our MOU with the County refuting our assailants attack that we operated our wedding venue last year in violation of the law 4. A statement from the Deschutes County Tax Assessors office stating that we our farm use was audited and verified. William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, April 30, 2018 3:14 PM To: William Groves Subject: Re: Arguments and evidence Attachments: New rebuttal pdf.pdf Hey, Will. I'm glad you like PDF's. You know what that stands for, right? Pretty Darn Frustrating! Just try cutting and pasting! Lol. Here it is. Let me know if you have any troubles. Thanks, John On Mon, Apr 30, 2018 at 2:23 PM, William Groves <William.GrovesAdeschutes.orp,> wrote: John, I can't seem to open the Microsoft word files. Could you send these as PDFs? Thanks, Will Will Groves Senior Planner, CFM F 117 NW Lafayette Avenue I Bend, Oregon 97703 "- PO Box 6005 1 Bend, Oregon 97708 Tei: (541) 388.6518 1 www.deschutes.org/cd 1106 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, April 30, 2018 1:52 PM To: William Groves <William.Groves@deschutes.org> Subject: Arguments and evidence Will, please find attached the following five documents: 1. My answer to COLW's challenges plus a reiteration of why all seasonality and frequency restrictions should be removed. 2. Attorney Dan Dalton's legal response to COLW's challenge about residential versus non-residential churches. Exhibit H. 3. A receipt for purchase of cattle, April 2018 Exhibit G 4. A letter of testimony from a couple with whom I'm counseling. Exhibit F 5. An advertisement from Grace Luther Church in Bend offering their church as a venue (2 pages). Exhibit E If necessary, please print these out as hard copies and provide to the Commissioners. If there are any problems, please let me know. Please confirm receipt of documents. Thanks, John William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, April 30, 2018 1:52 PM To: William Groves Subject: Arguments and evidence Attachments: Dalton's response to residential argument.docx; IMG.pdf, IMG_0001.pdf; IMG_0002.pdf, IMG_0003.pdf; New rebuttal.docx Will, please find attached the following five documents: 1. My answer to COLW's challenges plus a reiteration of why all seasonality and frequency restrictions should be removed. 2. Attorney Dan Dalton's legal response to COLW's challenge about residential versus non-residential churches. Exhibit H. 3. A receipt for purchase of cattle, April 2018 Exhibit G 4. A letter of testimony from a couple with whom I'm counseling. Exhibit F 5. An advertisement from Grace Luther Church in Bend offering their church as a venue (2 pages). Exhibit E If necessary, please print these out as hard copies and provide to the Commissioners. If there are any problems, please let me know. Please confirm receipt of documents. Thanks, John a William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, April 30, 2018 8:00 AM To: William Groves Subject: Question on new evidence submission Good morning, Will. Quick question: I was a little confused by David Doyle's explanation of when new evidence can be submitted in our three window response period. Can new evidence be submitted during the second window (the rebuttal stage) or just during the first window? Thanks, John William Groves From: Adam Smith Sent: Thursday, May 24, 2018 2:25 PM To: 'John Shepherd'; Dan Dalton Cc: William Groves; Peter Gutowsky; Tony DeBone; Phil Henderson; Tammy Baney; Nick Lelack; David Doyle Subject: RE: New attacks and new questions John, Sorry for the long email, but there are a number of issues that need to be clarified. Please note that your email and my response will be included in the record for your pending land use application. Some of the issues raised in your email should be addressed through the normal land use hearing process (i.e. in a public hearing before the Board or in the written record period). By conflating issues related to your pending land use application with issues related to the June 2017 agreement between you and the County, you are introducing that agreement and those issues into the current record. Nonetheless, I am obliged to clarify the following points: COLW is arguing that the County should cease processing your current application because it was withdrawn on Thursday, May 17, 2018. County staff is not aware of either a Deschutes County Code provision or state statute precluding you from changing your mind and electing to proceed as you informed the County you wanted to do on Monday, May 21, 2018. It is also not clear how COLW is harmed by you changing your mind. I asked COLW to articulate how it was harmed and/or to provide code citations addressing the subject. I also noted that it is in all three parties' best interests to expediently proceed with the current application because the dispute between you and COLW will continue until the RLUIPA issue is conclusively addressed. I hope to hear back from COLW sometime today. If COLW does not consent to your application proceeding, please be advised that you will probably face a procedural objection from COLW. Your other option, of course, is to submit a new application. It is your decision. Please note that I initially raised the possibility that "COLW may argue yet another procedural flaw" in an email to both you and your attorney on Monday, May 21, 2018, prior to you deciding to proceed with the application. Subsequently, I informed your attorney that COLW in fact raised a procedural objection in a second email on Tuesday, May 22, 2018. I am concerned that you are misconstruing conversations I had with your attorney regarding a "friendly lawsuit" whereby you would not pursue damages or attorney fees. Your attorney has raised that option on several occasions, and he raised it again when we initially talked last week. I noted my skepticism and clarified that the Board of County Commissioners would need to make that decision. I further explained that County staff was hoping to meet with the Board on Monday, May 21, 2018. To aid presenting the option to the Board, I emailed your attorney last Friday and asked for written clarification that you would not seek damages or attorney tees if proceeding with a federal lawsuit. Unfortunately, your attorney could not make that commitment. Any lawsuit seeking damages and attorney fees is clearly not a "friendly lawsuit" and forces the County to vigorously defend the case. I hope this issue is moot because you instead decided to proceed with the current application rather than a federal lawsuit. If that is not the case, I would appreciate clarification from your attorney by close of business, Tuesday, May 29, 2018. I am also concerned that you are misconstruing conversations I had with your attorney regarding code enforcement. I informed your attorney that the June 2017 agreement is still in effect. Pursuant to that agreement, the County consented to not pursue code enforcement so long as you actively pursue a land use permit and abide by the conditions of approval from the Hearings Officer's September 1, 2016 decision. After my conversation with your attorney, the County discovered from written materials included in the current record that you may be allowing multi -day events this summer as well as allowing wedding guests to camp on- site. County staff emailed you about those concerns so that you can make the appropriate arrangements to continue abiding by the June 17 agreement. County staff prefers to stay the course and address these issues through the pending land use application rather than through a code enforcement action. However, if you choose not to abide by the June 2017 agreement, you are increasing the risk that the County may be compelled to pursue code enforcement or that a third party succeeds in independently pursuing code enforcement. Going forward, if you want to include multi -day events in your pending land use permit application, County staff will likely need to reevaluate the associated infrastructure impacts. As you know, your March 16th email to Will Groves proposes to "limit the number of outdoor gathering to 30 one day events per year" (emphasis added). That email was intended to address County staff's infrastructure concerns and was included in the Board's April 23" hearing packet. If you instead intend to allow the public to utilize your property for three days per wedding as represented on your webpage (http://shepherdsfield.biz/prices.html), that seems to allow a total of only 10 weddings per year. Likewise, if you want to allow camping on your property, you will need to significantly modify your application. In either case, I recommend that you consider reapplying because it is unlikely that County staff can resolve these issues prior to June 4th hearing. Again, I would appreciate clarification from your attorney regarding your intentions by close of business, Tuesday, May 29, 2018. To ensure clear communication going forward, County staff is electing to send all correspondence to your attorney through Deschutes County Legal Counsel. County staff asks that you do the same. Thanks, -Adam Smith D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smithCcDdeschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: John Shepherd <shepherdsfield@gmaii.com> Sent: Thursday, May 24, 2018 8:01 AM To: William Groves <William.Groves@deschutes.org>; Dan Dalton <ddalton@daltontomich.com>; Adam Smith <Adam.Smith@deschutes.org>; Peter Gutowsky <Peter.Gutowsky@deschutes.org>; Tony DeBone <Tony.DeBone@deschutes.org>; Phil Henderson <Phil.Henderson@deschutes.org>; Tammy Baney <Tammy.Baney@deschutes.org> Subject: New attacks and new questions In light of the new malevolent attack from Landwatch, and the mixed messages I'm getting from the County, I thought it important that the Commissioners be aware of these developments preceding the June 4th hearing so I'm including them on this discussion. Will, yesterday you sent me a threat of code enforcement. In response, I asked you a couple relevant questions. Since I haven't heard back, I wanted to re -ask the questions and cc the County Commissioners. They need to be aware of Landwatch's latest attack and how county legal is responding. Frankly, I'm confused. Earlier in the week, Adam Smith told my attorney, Dan Dalton, that the county had no interest in pursuing code enforcement while this sorts out. Then yesterday I get an email threatening code enforcement. Also, earlier in the week Adam Smith told my attorney that, if need be, both sides would enter into a "friendly Federal lawsuit" to resolve the county's unconstitutional ban on churches as quickly and easily as possible. Then, a day later on May 21 st, Adam wrote me "county staff will likely defend such a case vigorously." Which is it? Very confusing. Here are my questions again from yesterday, in response to County's threat of code enforcement due to the fact that a wedding rehearsal precedes the wedding ceremony: Will, since this question has never been raised before, would you please answer a question for me? In that churches are allowed, by the state, to engage in religious activities, such as weddings, and, in that every wedding has a rehearsal gathering the day before associated with it, is it the position of the county to consider a wedding and rehearsal as one event or as two separate events? If the county considers them two events, then we will simply ask the Commissioners to issue our church permit with no frequency restriction, as per state law and as per RLUIPA equal access requirements. One other question: is there a county code prohibiting people from staying overnight on private property in an RV (without any hookups), as long as their is no charge? Please remember, Will, that the only reason my current permit imposes seasonal and fi•equency limitations on my church gatherings is because the planning department failed to read my new permit application and failed to incorporate the Board's decision to impose no season and frequency limitations, and mistakenly "cut and pasted" the old criteria from an earlier and defunct application. Otherwise, there would be no frequency concerns about wedding events and wedding rehearsals. There are no laws, state or county, that require seasonal or frequency limits. Furthermore, County has not imposed similar limits on similar churches in EFU, such as Ramona and Dave Hulick's Cowboy Church in Redmond, recently permitted on EFU. I hope the Board will sort out this mess at the June hearing. Sincerely, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Thursday, May 24, 2018 8:01 AM To: William Groves; Dan Dalton; Adam Smith; Peter Gutowsky; Tony DeBone; Phil Henderson; Tammy Baney Subject: New attacks and new questions In light of the new malevolent attack from Landwatch, and the mixed messages I'm getting from the County, I thought it important that the Commissioners be aware of these developments preceding the June 4th hearing so I'm including them on this discussion. Will, yesterday you sent me a threat of code enforcement. In response, I asked you a couple relevant questions. Since I haven't heard back, I wanted to re -ask the questions and cc the County Commissioners. They need to be aware of Landwatch's latest attack and how county legal is responding. Frankly, I'm confused. Earlier in the week, Adam Smith told my attorney, Dan Dalton, that the county had no interest in pursuing code enforcement while this sorts out. Then yesterday I get an email threatening code enforcement. Also, earlier in the week Adam Smith told my attorney that, if need be, both sides would enter into a "friendly Federal lawsuit" to resolve the county's unconstitutional ban on churches as quickly and easily as possible. Then, a day later on May 21 st, Adam wrote me "county staff will likely defend such a case vigorously." Which is it? Very confusing. Here are my questions again from yesterday, in response to County's threat of code enforcement due to the fact that a wedding rehearsal precedes the wedding ceremony: Will, since this question has never been raised before, would you please answer a question for me? In that churches are allowed, by the state, to engage in religious activities, such as weddings, and, in that every wedding has a rehearsal gathering the day before associated with it, is it the position of the county to consider a wedding and rehearsal as one event or as two separate events? If the county considers them two events, then we will simply ask the Commissioners to issue our church permit with no frequency restriction, as per state law and as per RLUIPA equal access requirements. One other question: is there a county code prohibiting people from staying overnight on private property in an RV (without any hookups), as long as their is no charge? Please remember, Will, that the only reason my current permit imposes seasonal and frequency limitations on my church gatherings is because the planning department failed to read my new permit application and failed to incorporate the Board's decision to impose no season and frequency limitations, and mistakenly "cut and pasted" the old criteria from an earlier and defunct application. Otherwise, there would be no frequency concerns about wedding events and wedding rehearsals. There are no laws, state or county, that require seasonal or frequency limits. Furthermore, County has not imposed similar limits on similar churches in EFU, such as Ramona and Dave Hulick's Cowboy Church in Redmond, recently permitted on EFU. I hope the Board will sort out this mess at the June hearing. Sincerely, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Wednesday, May 23, 2018 12:11 PM To: William Groves Cc: Adam Smith; Dan Dalton (ddalton@daltontomich.com); Peter Russell; Nick Lelack; Todd Cleveland Subject: Re: Camping and Multi -Day events Will, since this question has never been raised before, would you please answer a question for me? In that churches are allowed, by the state, to engage in religious activities, such as weddings, and, in that every wedding has a rehearsal gathering the day before associated with it, is it the position of the county to consider a wedding and rehearsal as one event or as two separate events? If the county considers them two events, then we will simply ask the Commissioners to issue our church permit with no frequency restriction, as per state law and as per RLUIPA equal access requirements. One other question: is there a county code prohibiting people from staying overnight on private property in an RV (without any hookups), as long as their is no charge? Thanks, John On Wed, May 23, 2018 at 10:03 AM, William Groves <William.Grovesgdeschutes.org> wrote: John, It has come to our attention that at least three scheduled weddings at your venue this summer are advertising free tent camping and two advertise RV hookups (see attached). Attached is the current agreement. Per paragraph 5, you are supposed to "comply with all conditions of 247- 16 -000 -159 -SP and 161 -AD for any church or Church Accessory Events, including weddings, on the property." Allowing camping and multi -day events in association with weddings was not included in that decision and violates the agreement. Specifically, the SP/AD includes the following requirements: #10. "The property shall only be open to event participants one weekend day per 7 -day period, beginning on May 15 of each year and ending on October 15, and shall not exceed 18 days per calendar year." # 13. Any outdoor use of the property by non-residents shall count as an "event." Also note that one of the attached weddings includes a Friday "Welcome Party" which is a multi -day, non - weekend event. Deschutes County urges you to comply with the terms of the agreement and not operate an unpermitted campground or multi -day, non -weekend wedding events on your property. Failure to comply with the agreement puts the County in an unfortunate position that may lead to code enforcement initiated by the County or a third party. Please confirm your intent to comply with the agreement. Thanks, M, Will Groves Senior Planner, CFM 117 NW Latayctte Avenue I Rend, Oregon 97703 4' PO Box 6005 1 Rend, Oregon 97708 Tel (541) 388.6518 ( xvA w deschutes.orP,/cd 110 (a Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Mailing Date: Wednesday, May 23, 2018 f f . Community Development Department Planning 01visiem BuOdin Safety Nosinn anvironrnentAlSolis Division AM"',ONW,, t n P,0, Box 5,3tfS .17 N��° Lafayette avenue Bend, Oregon �r7>i� a 7W5 Phone: (541) 35.0-6575 Fay: (541) 385-176-4 http:LiwAfw,deschutes.org/cd NOTICE OF ADDITIONAL PUBLIC HEARING The Deschutes County Board of Commissioners will hold a public hearing on Monday June 4, 2018, at 10:00 AM in the. Deschutes County Board of Commissioners Hearing Room at 1300 NW Wall Street, Bend, to take testimony on the following item: FILE NUMBER: 248-15-000179-A and 182-A, appeals of 247-17-000573-AD and 574-SP APPLICANT/ - OWNER: John and Stephanie Shepherd REQUEST: Administrative Determination and Site Plan Review for a Church in the Exclusive Farm Use Zone. LOCATION: The subject property is located at 71120 Holmes Road, Sisters, and is further identified as Tax Lot 103 on Deschutes County Assessor's Map 14-11: STAFF CONTACT: Will Groves, Senior Planner, willg@deschutes.org, (541) 388-6518 DOCUMENTS: Can be viewed and downloaded from: www.buildingpermits.oregon.gov and http`Hdial.deschutes.org Seven (7) days prior to the public hearing, copies of the proposed documents and attachments will be available for inspection at no cost at the Deschutes County Community Development Department at 117 NW Lafayette Avenue. Copies of the documents and attachments can be purchased at the office for (25) cents a page. ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. Qiialityt Services 1 efi `mem wi lh .t'r°ide STANDARDS AND APPLICABLE CRITERIA: Deschutes County Code (DCC): Title 18 of the Deschutes County Code, the County Zoning Ordinance: Chapter 18.04, Title, Purpose and Definitions Chapter 18.16, Exclusive Farm Use Chapter 18.88, Wildlife Area Combining Zone Chapter 18.116, Supplementary Provisions Chapter 18.124, Site Plan Review Title 22, Deschutes County Development Procedures Ordinance NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call the ADA Coordinator at (541) 617-4747. 248-18-000179-A and 182-A, appeals of 247 -17 -000573 -AD and 574 -SP 2 VS V7 N V] VI t/1 N ✓1 VI V} 6/1 n n n n n n n n n n � �m U) Lf) Le) �n in ui n � �nLr)�n Q Q Q Q Q Q Q Q Q Q Q m m m m m m m M m rm m n n n n n n n n n n n V1 lfi In V1 lft 1J1 0 N 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 M1 73 N N N N H '7' N ti N N c-1 2 S S S S S x 2 2 2 2 a a a a d a a a LL a W d n 0 0 0 0 0 0 0 0 0 0 0 .', z z z z z z z z z z z 0 0 o m rn m 0 K N u1 V1 lf1 N O1 Q1 M U O1 w w u W a:m z m Z Z d o O O O O O Z z 0 m O O > cr p w w p p Y w w W w O Q w w Q v v 'u V1 to VS N H H N m N w w Z w 2 o. w w � w r s F- < Q m m } z 3 O w w 2 Z CO m Q � m un w 2 u O > � x Q a a v ,000 ,°n CO m U William Groves From: William Groves Sent: Wednesday, May 23, 2018 10:04 AM To: 'John Shepherd' Cc: Adam Smith; Dan Dalton (ddalton@daltontomich.com); Peter Russell; Nick Lelack; Todd Cleveland Subject: Camping and Multi -Day events Attachments: Ayla and Jeremy's Wedding.pdf; Charli Siegner and Kody Kinser's Wedding.pdf; Emily Stupfel and Will Chivers's Wedding.pdf; Shepherd 2017_437_notarized.pdf John, It has come to our attention that at least three scheduled weddings at your venue this summer are advertising free tent camping and two advertise RV hookups (see attached). Attached is the current agreement. Per paragraph 5, you are supposed to "comply with all conditions of 247 -16 -000- 159 -SP and 161 -AD for any church or Church Accessory Events, including weddings, on the property." Allowing camping and multi -day events in association with weddings was not included in that decision and violates the agreement. Specifically, the SP/AD includes the following requirements: #10. "The property shall only be open to event participants one weekend day per 7 -day period, beginning on May 15 of each year and ending on October 15, and shall not exceed 18 days per calendar year." #13. Any outdoor use of the property by non-residents shall count as an "event." Also note that one of the attached weddings includes a Friday "Welcome Party" which is a multi -day, non -weekend event. Deschutes County urges you to comply with the terms of the agreement and not operate an unpermitted campground or multi -day, non -weekend wedding events on your property. Failure to comply with the agreement puts the County in an unfortunate position that may lead to code enforcement initiated by the County or a third party. Please confirm your intent to comply with the agreement. Thanks, Will Will Groves Senior Planner, CFM � -i �r 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 i Bend, Oregon 97708 Tel: (541) 388.6518 i www.deschutes.org/cd Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. 5/22/2018 Ayla and Jeremy's Wedding Website AYLA DUYN 7EREMY GILLA.M https://www.zola.com/wedding/becomingthegillams 1/1 5/2212018 Ayla and Jeremy's Wedding Website TRAVEL & PLACES TO STAY https://www.zola.com/wedding/becomingthegillams/travel 1/1 FOMMEM'" H o t e 1 S MOM 5/22/2018 Charli Siegner and Kody Kinsees Wedding Website https://www.theknot.com/us/charli-siegner-and-kody-kinser-aug-2018-e864cOeb-556e-401 f-b356-49724c58a36b 1/2 5/22/2018 Charli Siegner and Kody Kinsees Wedding Website https://www.theknot.com/us/charli-siegner-and-kody-kinser-aug-2018-e864cOeb-556e-401f-b356-49724c58a36b 2/2 5/22/2018 Charli Siegner and Kody Kinsees Wedding Website https://www.theknot.com/us/chadi-siegner-and-kody-kinser-aug-2018-e864cOeb-556e-401 f-b356-49724c58a36b/details?utm_campaign=wedding-websites-share&utrr 5/22/2018 Charli Siegner and Kody Kinser's Wedding Website haps://www.theknot.com/us/charli-siegner-and-kody-kinser-aug-2018-e864cOeb-556e-401 f-b356-49724c58a36b/details?utm_campaign=wedding-websites-share&utnr 5/22/2018 Emily Stupfel and Will Chivers's Wedding Website r�.;fy �✓ uex hftps://www.theknot.com/us/emily-stupfel-and-will-chivers-sep-2018-6745d985-ebdb-4deb-a29e-3f8d3O3baecb 1/2 5/2212018 Emily Stupfel and Will Chivers's Wedding Website https://www.theknot.com/us/emily-stupfel-and-will-chivers-sep-2018-6745d985-ebdb-4deb-a29e-3f8d3O3baecb 2/2 5/22/2018 Emily Stupfel and Will Chivers's Wedding Website tpw hftps://www.theknot.com/us/emily-stupfel-and-will-chivers-sep-2018-6745d985-ebdb-4deb-a29e-3f8d3O3baecb/details?utm—campaign=wedding-websites-share&utm_ 5/22/2018 Emily Stupfel and Will Chivers's Wedding Website https://www.theknot.com/us/em ily-stupfel-and-will-ch ivers-sep-2018-6745d985-ebd b-4deb-a29e-3f8d3O3baecb/details?utm_campaign=wedd ing-websites-share&utm_ im In "Ju Qj Ij REVIEWED LEGAL COUNSEL For Recording Stamp Only AMENDED AND RESTATED DESCHUTES COUNTY MOU: Shepherdsfield Church Approval DOCUMENT NO. 2017-437 This Amended and Restated Memorandum of Understanding ("Amended MOU") is made and entered into by and between Deschutes County, a political subdivision of the State of Oregon, acting by and through the Deschutes County Community Development Department, hereinafter referred to as "County," and John Shepherd, Stephanie Shepherd and Shepherdsfield Church, hereinafter referred to as "Shepherd," collectively referred to as "Party" or "Parties." The Parties agree as foitows: Effective Date and Termination Date. a. Unless terminated earlier as provided for herein, this Amended MOU shall be effective when signed by both Parties untif a date that is six (6) months after the date upon which there is a ficial decision regarding County approval in 247- 16-000-150SF and 161 -AD or subsequent land use applications submitted by Shepherd pursuant to paragraph 3 below. b. This Amended MOU maybe revised or modified by written amendment when both Parties agree to such amendment. c. This Amended MOU may be terminated for convenience by either Party within thirty (30) days after submitting a written notice to the named Parties outlined in "Notice and Contact Information" section bet -. Agreement Documents. This Amended MOU includes Pages Tthrouo 3. Nestioe ands Contact information. Except as. otherwise expressly provided in this Amended MOU, any communications between the Parties hereto or notices to be given hereunder shall be given in writing, to Shepherd or County at the address or number set forth below or to such other addresses or numbers as either Party may Hereafter indicate in writ, Delivery may be by personal delivery, electronic mail, facsimile, or mailing the same, postage prepaid. Any notice required or permitted to be given pursuant to this Agreement shall be given in writing and addressed to the foil n SHEPHERD: COUNTY: Name: John Shepherd Name: Nick Lelack Title: Pastor Titte: Director Dept: CDD Shepherdsfield Church Fac: Deschutes County Addrs: 71120 Holmes Road Addrs: 117 NW Lafayette Ave. City/St: Sisters, OR 97759 City/St: Bend,_ OR 97703 + 0fc: 541-548-9905 Ofc: 541-385-1708 1 E -Mail. shepherdsfieldCa3gmaiLcom E -Mail: nick.lelack(o)deschutes.org The purpose of this Amended MOU is to amen& and restate a previous- MOU recorded at 2017-03887 in the Deschutes County Official Records. ("Original MOU") pertaining to wedding events and other:gatherangs to-beheld-4at#w Shepherdsfield Church pursuant to County approval in 247-16-000-159SP and 161 -AD ("Church Accessory Events'). Paragraph "b" on. page f contemplates that the Original MOU coufd, only be amendied' when agreed by both tzai#iesire: meriting; .Oaragraph "c" on page 1 contemplates that the Original MOU could only be terminated in writing. The Parties agree that because of changed circumstances involving legal challenges to the County's approval in 247-16-000-159SP Amended MOU / Deschutes County - Shepherd Document No. 2017-437 Page 1 of 6 and 161 -AD, the Original MOU should be renegotiated. This Amended MOU seeks to preserve the cooperative relationship between Shepherd and County, terminate the terms and provisions as set forth in the Original MOU, and revise the responsibilities of the Parties as they address implementation of County approval in 247-16-000-159SP and 4&3. -Ate; vrsutsequent land use applications submitted by Shepherd pursuant to paragraph 3 below, in the face of continued legal challenges, remands, and appeals. TERMS THEREFORE, in consideration of the mutual promises and agreements contained in this Amended MOU, Shepherd and County agree as follows' F. The Parties mutually agree that the Original MOU recorded at 2017-03887 in the Deschutes County Official Records is hereby terminate.. 2. If determined to be necessary,, County, staff may initiate a text amendment to the Deschutes County Code clarifying how religious land uses are processed and approved: Shepherd acknowledges that County staff, in their sole discretion, shall decide if and when to initiate such a text amendment. Further, if a text amendment is initiated. Shepherd acknowledges that County makes no guarantees that said amendment will ultimately be adopted and sustained if appealed. Thereby, County makes no representations that a text amendment will be adopted, that a text amendment will be sustained if appealed, or that a text amendment will ensure approval of the proposed Church Accessory Events or other similar uses. 3. Shepherd may submit subsequent land use applications seeking approval of the proposed Church Accessory. Events or other similar uses. Shepherd acknowledges that such applications may be submitted at any time, either before or after County staff possibly initiates a text amendment pursuant to paragraph 2 above. 4. The Parties mutually agree that it is their collective interest to expedite the final resolution of Shepherdsfield Church, and particularly resolve if Church Accessory Events will ultimately be allowed after all legal challenges, remands, and appeals are complete. As outlined in the County's June 2, 2017 letter to Shepherd (attached hereto and incorporated by reference herein), the most expeditedresolution of the matterllkeFy occurs if Shepherd immediately submits a subsequent land use application pursuant to paragraph 3 above. Consistent with the June 2, 2017 letter, the County shall waive Shepherd's application fee and will endeavor to expedite. said application so long as Shepherd submits the new application by July 14, 2017. 5. Shepherd shall comply, with all conditions of 247 -16 -000 -159 -SP and 161 -AD for any church or Church Accessory Events, including weddings, on the property. If Shepherd submits subsequent land use applications pursuant to paragraph 3 that are approved by County, Shepherd shall instead comply with all conditions of approvat associated with such per "ft. 6. If Shepherd elects to not submit subsequent land use applications pursuant to paragraph 3, Shepherd shall cease to conduct any and all Church Accessory Events (previously booked or not) within 90 days of any reversal or denial of County's approval of 247 -16 -000 -159 -SP and 161 -AD when such action is a final decision and either not subject to further legal challenge or appeal as recognized by County, or not further challenged or appealed by either Party. In the alternative, if Shepherd submits subsequent land use applications that are approved, Shepherd shall cease to conduct any and all Church Accessory Events (previously booked -.ori) with1n90 days of any reversal or denial of such subsequent approvals when such actions are a final decision and either not subject to further legal challenge or appeal as recognized by County, or not further challenged or appealed by either Party. 7. In reliance upon Shepherd's compliance with the terms of this MOU, and provided that Shepherd does comply with the terms of this MOU, County will refrain from code enforcement or other legal proceedings associated with the activities authorized by County in 247 -16 -000 -159 -SP and 161 -AD or potentially authorized by County if Shepherd submits subsequent land use apprications pursuant to paragraph 3.. 8. Shepherd acknowledges the legal uncertainty regarding the ultimate approval and sustainment of Church Accessory Events pursuant to 247-16-000-159SP and 161 -AD or pursuant to subsequent land use applications submitted pursuant to paragraph 3 above. As such, Shepherd acknowledges the risk of continuing to enter into contacts for Church Accessory Events or otherwise allow such Church Accessory Events to continue. Amended MOU / Deschutes County - Shepherd Document No. 2017-437 Page 2 of 6 9_ If any provision of this Amended MOU shall ever be declared defective, void or voidable, or otherwise struck down or invalidated, the invalidation shall affect that particular provision only. The remaining provisions shall continue in full force and effect. 10. This Amended MOU and all of the terms and provisions hereof shall be binding. upon and shall inure to the benefit of the Parties and their respective officials, employees, agents, heirs, representatives, successors and assigns. 11. All Parties understand and agree that this Amended MOU states the entire agreement between the Parties, and that the terms of this Amended MOU are contractual, binding on the Parties, and not merely recitals. t WITNESS WHEREOF, the authorized representatives of Shepherd and County have caused this Amended MOU to be executed on the date listed with the representative's signattrrs. Shepherd, BY. Signature Name: John_ Shepherd.___ Print or Type Name Title: Pastor Date: �A O_A i STATE OF OREGON Deschutes County BY: Q� �,.''— �WSignature Name: Print or Type Name Title: Director,. CDD 1(0 Date.7_4 ___ _...__ ...._... ss. County of Deschutes )� This Amended MOU was acknowledged before me on �`�� 2017, by John Shepherd, in his individual capacity, on behalf of Stephanie Shepherd, and as the Pastor of Shepherdsfield Ghur ,-, } v. OFFICIAL STAMP N tary.ublic f r Oregon C,( a ASHLEY LOWELL BORDEN My commission expires: NOTARY PUBLIC -OREGON COMMISSION NO. 932186 MY COMMISSION EXPIRES SEPTEMBER 15, 2018 STATE OF OREGON ) ) ss. County of Deschutes ) This Amended MOU was acknowledged before me on 2 17, by Nick Leiack as the Director of the Deschutes County Community DevelopmentDeparture rt. OFFICIAL STAMP No tary � licfo�TRACYARLENE GRIFFIN My con NOTARY PUBLIC -OREGON ission COMMISSION NO. 921861 MY COMMISSION EXPIRES NOVEMBER 12, 2017 Amended MOU 1 Deschutes County - Shepherd Document No. 2017-437 Page 3 of 6 W� O �JAA�A�A-� via email John &hepiierdlPa 71120 Holmes Road Si iers O 7' !'759 ©ESCHUTES COUNTY LEGAL COUNSEL. 1300 NW Walt Street, Suite 205, Send, Oregon 97703-1960 {6ephurie. 54 1-368-6623 l FauSlrrfiie: 5141-0 1/-4/,4b wiii ackuowicd}ge rcceipi oi`your ernaii dated iviay 30,2M inciuding the attachment, Deschutes County does not agree with all of the statements and allegations in the email and attachment. Likewise, it is hard to c.qw4iniae negotiating amicably against the threat of lawsuit. Nonetheless, both Deschutes County and Shepherdsfield Church agree that LUBA's decision in this matter was disappointing, both because LURA dict riot !_fLIJ[LtCa.gree with the County 1earngs 5lretcc's compreLensive a aiy3es T3 k'ed. 41ionli:co «??Ysis. .ifcly hpcural posturing surrounding your application will likely continue. After re-evaluating options for all parties involved, s,�itutes Cousity is presenting. a new alternative that ensures a more expedited final resolution. Further, as outlined below., Deschutes County does not agree that you have any basis to cithor threaten or initiate a fedcral lawsuit at this time. A_:_ltemative l�. r_p _oac a,esc3.ute_ Cutnty's:origira; krree-ps•osr� proposalwas aun:;d at bcrret'ttting you and thereby eiirr,snatfng tc:r both parties the risks associated with a federal tawsui't. The C'otutty proposed the foilowing. (f) the Comity would appeat LUBA's decision (you, of course, had the option to appeal as well); (2) the County would initiate a text amendment e-larifyirrq tyre intclit cif the Deschtrtes Cotwty Cade as all amendment; and (3j the County woutd'consent to substantialfy a.tnend the terns of the current Deschutes cburr�Y M U., Shepherd Church Approvar; Document No. 2016-6!V2(`0riginai MOO"). In return, the County requested a release/waiver provision in the amended MOU to ensure the aforementioned actions intended to ncfq.you would not later he used against the County. As stated, our original proposal was intended to elrrr imAe ftr both. parties the need arrd risks associated v6th a federal 11awsuit, l nlWtunately, your May 3a email indicates that our original proposal is not going to work. After re -considering options and thoroughly reviewing LUBA's deelsions concerning The Rflighxts Land L'vv and Institutionalized Persons ,4ct ("RLUIPA"), the most likely outcome of the County's original three -prong David Doyle, Legal Counsel I Christopher Bell, Assistant Legal Counsel I John E. Laherty, Assistant Legal Counsel I D. Adam Smith, Assistant Legal Counsel .PaF 4, A4-6 Connie Scoria, Paraiew 1. Pauaftworis-var~ s'!g'i ni- iii 'i aura of Appeals either regi ires .LUBA tit retnand�the ease back io Deschutes COUnty, r or you submit a new application after a text amendment clarifying the intent of the code is adopted, appealed, and sustained. Both outcomes likely result in the Board of County Commissioners ultimately reconsidering your application in a number of months. Instead; another option is that you 'immediately submit a new app" nat'ior" 1:�ased all the pressl}sg: yoku expressed nu€iter€ us, times souring our ntcetinl oil May'26, 2017: you now believe based on LUBA's opinion that the Deschutes Coiiiity Cod=e violates RLUIPA. Although Cotiitty staff does not �necessariiy agree will? that opinion; we nevertheless concede that vetting the issue, through the County's applicatio.a and, hearing process ensures a more expedited final resolution. Although there we€e overtures to an RLUIPA "equal terms" issue in the proceedings before the Hearis,�s Officers and LUBA, to date that issue has not been fully briefed.` More importantly, the Board of County Commissioners has not specifically considered the issue. It is likely that the County Commissioners would rather develop the record and make the initial decision, especially considering that the Commissioners may have add'ieronaf'opfions pursuant to RLTA A's "safe harbor"provision:' A government may avoid the preemptive force of any provision of this Act by changing the .policy or practice that results in a suostai .,na`i burden on religious cxercise,'oy retaining the po'iiey or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that 9srr. a . "'eshG s4 �stantia)" bitriien. 47 t7i § 2630(kc-3(e) If you re -apply immediately, it is anticipated that Central Oregon LandWatch ("COLW") will again oppose your application arguing that the C ounty Code does not violate RLUIPA. Thereby, tlhis new option wilt Ilor,0' a ° ensure that the RLUIPA 'issue will be fully briefed and in front of the Board of County CLnhni€ssioners €n a nhore expedited fashion. Depending on the Board's decision, it is a reasonable assumption that either you or COLW Pw1.1 sulisecluently appeal to Ll_IBA;.thcreby hopefully ensuring that LURA. directly considers the RLUIPA issue ,as w ,11 as the nt11ex tlhree assignmerr%oferror initiRtly raised by COLW Although Deschutes County cannot provide assurances that your application will ultimately be approved, it is clear that the most expedient resolution is for you to submit a new application. Deschutes County still seeks to continue our "cooperative relationship" as noted in the Original MOO, and thereby will waive all applications and hearing fees if you decide to immediately re -apply. Further, the County will do its best to expedite that appli it,& wait for -tile final resolution of this case before proposing a text amendment clarifying the intent of the codpe to ensure such efforts are not .premature. Federal La�vsuit�Il?rea Returning to your May 30 email, it must be addressed that you claim you are "ready and willing to file a federal lawsuit seeking both damages and legal fees." I strongly question whether you realistically have any basis to either threaten or initiate a lawsuit against Deschutes County. In this context, please keep the following points in mind: Deschutes County does riot agree that you have presently been harmed. A County Hearings Officer found -that your application satisfied all applicable criteria and accordingly approved yourapplication (see 247-16-000159SP and 161 -AD). COI.W appealed the County decision, ultimately to LUBA. LURA applied its own independent interpretation of Deschutes County Code; Deschutes County has no control or influence over COLW or LUBA. Nonetheless, while the appeal was pending, you voluntarily entered into the Original MOU that allowed you to continue to operate, The stated purpose of the Original MOU is "to establish a cooperative relationship between Shepherd and County and outline the responsibilities of the parties as they address implementation of County approval in 247-16-000-159SP and 161 -AD in the face of legal challenges, remands and appeals." • Pursuant to paragraph 4 of the Original MOU, you were required to appeal LUBA's decision to the Court of Appeals to ensure that "Church Accessory Events" were allowed to continue beyond the 90 - day period outlined in paragraOi -5, • As noted above, County staff does not necessarily agree that the Deschutes County Code violates RLUIPA. In fact, your own past argument to the County Hearings Officer and LUBA presents a harmonious interpre#Rtaon of the DesGbute$ Couttty Gude with RLUIPA. The County clearly agreed with your interpretation at that time and relied on that interpretation to approve your applicatio-m • LUBA did not opine on three of the four assignments of error presented by COLW. Further, LUBA specifically did not determine that the Deschutes County Code violates RLUIPA because it found the RLUIPA argument "undeveloped." • Even if LUBA had considered RLUIPA when it reviewed the County Hearings Officer's interpretation of the Deschutes County Code, LUBA nonetheless still could have reversed because of the other three assignments of error. It is impossible to argue that LUBA would have sustained the County's apprm—,il of your proposed use but for the Deschutes County Code's treatment of churches in the wildlife area combining zone. Please let me know as soon as possible if you intend to submit a new application as discussed herein. If so, t will prepare draft amendments to the original MOU for your consideration. D. Adam Smith Deschutes County Assistant Legal Counsel VC Daniel Dalton Page 6 of 6 William Groves From: Sent: To: Cc: Subject: Attachments: Importance: Categories: Paul & Carol, Adam Smith Tuesday, May 22, 2018 2:47 PM 'Paul Dewey'; 'Carol Macbeth' William Groves; Peter Gutowsky; Nick Lelack Shepherdsfield Church Order No 2018-041.pdf Yellow Category I talked with Carol earlier this morning to keep COLW in the loop on the Shepherdsfield Church matter. I also left Paul a voice message hoping to discuss the situation further. Last week, I discussed LUBA Order No. 2018-007 with Dan Dalton, John Shepherd's attorney. As you know, LUBA provided the County options: "remand is necessary for the county to adopt an ESEE analysis that either does not rely on the mere threat of RLUIPA litigation, or that actually evaluates whether the existing Goal 5 program is inconsistent with the RLUIPA Equal Terms or Substantial Burden requirements." Following those conversations, Mr. Shepherd agreed to withdraw his application to give the County time to determine next steps on the Wildlife Area Text Amendment. However, Mr. Shepherd subsequently indicated an intention to proceed immediately with a federal RLUIPA lawsuit against Deschutes County. As you know, the County has been working diligently to avoid such a lawsuit. To date, the County has agreed with COLW's assertion that we have not violated RLUIPA when it comes to Shepherdsfield Church. But RLUIPA case law is inconsistent and marred by circuit -splits on a number of issues, and the County has not been willing to risk the taxpayers' coffers to make new federal RLUIPA case law on a matter of first impression. Instead, it seems prudent to rely on Oregon's unique land use system to conclusively address the dispute because it is more inclusive, cheaper for all parties and more expedient, in theory at least. In the face of Mr. Shepherd's renewed litigation threats, I argued that he should instead consider proceeding with the pending application because that application is the quickest way to determine if the un -amended County Code violates RLUIPA. The RLUIPA issue has never been fully briefed before the Board or LUBA. Instead, LUBA determined a year ago that the RLUIPA issue was "undeveloped." And, LUBA agreed that the recent facial challenge to the text amendment is best understood as an ESEE dispute and declined to address the RLUIPA issue. The RLUIPA issue needs to be addressed before Deschutes County, John Shepherd, and COLW can end this multi-year dispute. Again, it seems prudent to rely or Oregon's land use system to do so. Mr. Shepherd ultimately agreed and elected to withdraw his previous withdrawal. The Board of County Commissioners thereby issued the attached order yesterday afternoon re -opening the record so parties can brief the RLUIPA issue. I suspect that both the Equal Terms provision and the Safe Harbor provision will need to be addressed by the parties. Following the Board's decision, I immediately called Carol last night to explain what had transpired over the preceding week. I again called Carol this morning. Based on our conversation, it appears that COLW is opposed to the County continuing to process Mr. Shepherd's current application because of the earlier withdrawal. I could not find any DCC or ORS provisions that prohibits Mr. Shepherd from changing his mind a couple of days later, and it is hard to image that COLW was harmed by his decision to do so. If I am wrong and COLW was harmed, or if you think a code provision or case law applies, please let me know. It should be noted, however, that Mr. Shepherd may simply re -apply in the near future because the RLUIPA issue will still not be addressed. My voice message last night, my phone call this morning, and this email are all being provided as a courtesy. I appreciate that tensions are high and COLW is tired of spending time and resources on this matter. County staff shares those sentiments. And John Shepherd likely does as well. But the dispute will continue until the RLUIPA issue is resolved, and unnecessary procedural arguments are delaying the inevitable and make it less likely that the parties can rely on Oregon's land use system to address the dispute. Please let me know ASAP if this email changes COLW's position. County staff is trying to schedule the new public hearing before the Board for June 4, 2018. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam. sm ith(a)deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. William Groves From: Adam Smith Sent: Tuesday, May 22, 2018 10:06 AM To: 'Dan Dalton' Cc: William Groves Subject: RE: Shepherdsfield Categories: Phone Call Dan, This email is an FYI. COLW is arguing that the case was withdrawn last week and that proceeding with the case now is frivolous. They are talking about attorney fees. I was unaware that they were informed of the withdrawal, but that is arguably irrelevant at this point. I am not aware of a Deschutes County Code provision prohibiting Shepherdsfield Church from withdrawing its earlier withdrawal. Nonetheless, I suspect you will need to deal with the procedural issue if you proceed. The other option is to simply reapply, but it is unlikely that the Board will consider the matter until later in the summer. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smith(a)deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: Dan Dalton <ddalton@daltontomich.com> Sent: Tuesday, May 22, 2018 9:38 AM To: Adam Smith <Adam.Smith@deschutes.org> Cc: William Groves <William.Groves@deschutes.org> Subject: Re: Shepherdsfield June 4 works for me. Looking forward to receiving the questions and responding. Dan Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 1 F: 313.859.8888 E: ddaltonCa)daltontomich.com www.daltontomich.com www,attornevsfortandu ee.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: Adam Smith <Adam.Smith@deschutes.org> Date: Tuesday, May 22, 2018 at 12:35 PM To: Dan Dalton <ddalton@daltontomich.com> Cc: William Groves <_William.Groves@deschutes.org> Subject: Shepherdsfield M The County is working towards having the new public hearing on June 4. Does that date work for you? Please respond to both me and Will Groves (CCed). Also, the County has a very short window to make to decide this matter. We may need to ask for an extension in the future. But, we can cross that bridge when we come to it. In the meantime, County staff is likely going to prepare a list of questions for the parties prior to the public hearing. We are preparing the list only to help focus the issues, and the parties of course are free to ignore our proposed questions and/or brief other issues as they see fit. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smithCa.deschutes.ora THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. William Groves From: Adam Smith Sent: Tuesday, May 22, 2018 9:35 AM To: 'Dan Dalton' Cc: William Groves Subject: Shepherdsfield Categories: Phone Call Dan, The County is working towards having the new public hearing on June 4. Does that date work for you? Please respond to both me and Will Groves (CCed). Also, the County has a very short window to make to decide this matter. We may need to ask for an extension in the future. But, we can cross that bridge when we come to it. In the meantime, County staff is likely going to prepare a list of questions for the parties prior to the public hearing. We are preparing the list only to help focus the issues, and the parties of course are free to ignore our proposed questions and/or brief other issues as they see fit. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smithCa cleschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. William Groves From: Adam Smith Sent: Tuesday, May 22, 2018 9:16 AM To: 'Carol Macbeth' Cc: Tom Bishop; William Groves Subject: RE: withdrawal of application 247-18-000179-A and 182-A Attachments: Re: Continue with vote on my church application Carol, I called and left you a voice message last night on this same topic. Please feel free to call if you want to discuss the issue further. I talked several times with Dan Dalton as well. However, I disagree with Mr. Shepherd's characterization of those conversations. Attached is the complete email thread which includes a response from me clarifying that Mr. Shepherd needs to make the decision on how to proceed. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smith@deschutes.orq THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT, IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: Carol Macbeth <carol@colw.org> Sent: Tuesday, May 22, 2018 8:27 AM To: William Groves <William.Groves@deschutes.org> Cc: Adam Smith <Adam.Smith@deschutes.org>; Tom Bishop <tom@bishoptrust.com> Subject: Re: withdrawal of application 247-18-000179-A and 182-A Thanks very much Will. Best regards, Carol Macbeth 2018-05-22 8:14 GMT -07:00 William Groves <William. GrovesAdeschutes. org>: Attached. Let me know if you have any questions. Will Groves Senior Planner, CFM r` 117 NW Lafayette Avenue I Bend, Oregon 97703 " PO Box 6005 1 Bend, Oregon 97708 Tei: (541) 388.6518 1 www.deschutes.org/cd Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Carol Macbeth <carol@colw.org> Sent: Tuesday, May 22, 2018 8:08 AM To: William Groves <William.Groves@deschutes.org> Cc: Adam Smith <Adam.Smith@deschutes.org>; Tom Bishop <tom@bishoptrust.com> Subject: Re: withdrawal of application 247-18-000179-A and 182-A Hi Will, My understanding from Tom Bishop is that you told him the application was withdrawn. Was the application withdrawn? Can you forward me that information? Thanks! Best regards, Carol Macbeth 2018-05-22 7:54 GMT -07:00 William Groves <William.Groves@deschutes.org>: Hi Carol, John and his attorney decided that they wanted to proceed and requested the Board reopen the oral and written record. I'll send you a copy of that order as soon as I get a copy and I'll notice you of the hearing. We're going to do try to do it ASAP, which might be as soon as June 4th. I'll confirm the hearing date with you via email and mailed notice. Thanks, Will Will Groves Senior Planner, CFM 4"5� ,fig 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd (100 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Carol Macbeth <carol@colw.org> Sent: Monday, May 21, 2018 7:34 PM To: William Groves <William.Groves@deschutes.org> Subject: withdrawal of application 247-18-000179-A and 182-A Hi Will, Hope all's well with you! I understand from Tom Bishop who apparently had a chance to speak with you Friday that Mr. Shepherd withdrew his application. Can you forward me that information? Thanks! Best regards, Carol Carol Macbeth Staff Attorney Central Oregon LandWatch Carol Macbeth Staff Attorney Central Oregon LandWatch ---------- Message transfer6---------- From: John Shepherd <shepherdsfieldggmail.com> To: William Groves <William.GrovesAdeschutes.org> Cc: Dan Dalton <ddalton o daltontomich.com>, Adam Smith <Adam.Smith Adeschutes.org> Bee: Date: Mon, 21 May 2018 20:16:18 +0000 Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June 13th? Thanks, John Shepherd ---------- Message transfdrd---------- From: John Shepherd <shepherdsfield@Zmail.com> To: William Groves <William.Groves(a�deschutes.org>, Dan Dalton <ddaltongdaltontomich.com>, Adam Smith <Adam.Smithgdeschutes.org> Cc: Bcc: Date: Thu, 17 May 2018 22:24:24 +0000 Subject: Request for application withdrawl Hey, Will. So, my attorney, Dan Dalton, has been speaking with Adam Smith about LUBA's recent decision to reverse the County's text revision allowing churches. Adam suggested to Dan that I withdraw the application since, under the new circumstances, the Commissioners now have no choice but to deny it. This makes sense to me and I hereby request that the application be withdrawn. Sincerely, John Shepherd Carol Macbeth Staff Attorney Central Oregon LandWatch William Groves From: Dan Dalton <ddalton@daltontomich.com> Sent: Monday, May 21, 2018 2:36 PM To: William Groves; Adam Smith; 'John Shepherd' Subject: Re: Continue with vote on my church application That is confirmed. The 150 day clock is being extended 60 days. As I told Adam, I have a trial that starts July 9 that will go for two weeks so if we can have the hearing in early June or mid August, that would be appreciated. Thanks! Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 1 F: 313.859.8888 E: ddaltonga daltontomich.com www.daltontomich.com www.attorneysforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: William Groves Date: Monday, May 21, 2018 at 5:31 PM To: Dan Dalton, Adam Smith, John Shepherd Subject: RE: Continue with vote on my church application Dan, Record reopening are allowed under the code below. Would you consider confirming in writing that the 150 - day clock is being extended? Typical extensions would be for 60 days. Thanks, Will 22.24.160. Reopening the Record. A. The Hearings Body may at its discretion reopen the record, either upon request or on its own initiative. The Hearings Body shall not reopen the record at the request of an applicant unless the applicant has agreed in writing to an extension or a waiver of the 150 -day time limit. B. Procedures. 1. Except as otherwise provided for in DCC 22.24.160, the manner of testimony (whether oral or written) and time limits for testimony to be offered upon reopening of the record shall be at the discretion at the Hearings Body. 2. The Hearings Body shall give written notice to the parties that the record is being reopened, stating the reason for reopening the record and how parties can respond. The patties shall be allowed to raise new issues that relate to the new evidence, testimony or criteria for decision-making that apply to the matter at issue. lq� Will Groves I Senior Planner, CFM Az DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd 008 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Dan Dalton Sent: Monday, May 21, 2018 2:19 PM To: Adam Smith; 'John Shepherd' Cc: William Groves Subject: Re: Continue with vote on my church application We will proceed with the application. Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 1 F: 313.859.8888 E: ddaltonga daltontomich.com www.daltontoniich.coni www.attorneysforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: Adam Smith <Adam.SmithL&deschutes.org> Date: Monday, May 21, 2018 at 4:51 PM To: John Shepherd <shepherdsfield ,mail.com>, Dan Dalton <ddaltoii a daltontomich.com> Ce: William Groves <William.GrovesAdeschutes.org> Subject: RE: Continue with vote on my church application John, To clarify, Dan Dalton and I spoke this morning about options moving forward. I certainly shared my point of view. However, it is ultimate your decision after you consult with your attorney on how you want to proceed. All options present some level of risk to you, and it is imperative that the decision is ultimately your own. Notably, I argued that withdrawing your pending application made sense if the goal was to provide time for the County to either appeal LUBA's decision or reconsider the text amendment on remand. However, withdrawing the application and instead proceeding with a lawsuit against the County doesn't make sense for a number of reasons. Obviously, County staff does not favor a federal lawsuit and will likely defend such a case vigorously. Instead, your pending application likely provides the forum for you and COLW to dispute if the un -amended Deschutes County Code violates RLUIPA. To date, the parties have not fully vetted or briefed that issue in front of the Board. There may be procedural and substantive risks to this approach that you should discuss with your attorney. For example, COLW may argue yet another procedural flaw. Or, either the Board or LUBA may decided the RLUIPA issue against you, or avoid the issue in its entirely and focus instead on one of the numerous other arguments raised by COLW. If you have any questions or comments, I recommend that you talk further with your attorney. As noted, the decision on how to proceed is your own. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 that Fax: (541) 617-4748 adam.smithgdeschutes.M THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: John Shepherd <shepherdsfield(amail.com> Sent: Monday, May 21, 2018 1:16 PM To: William Groves<William.Groves(a)deschutes.org> Cc: Dan Dalton <ddaltongdaltontomich.com>; Adam Smith <Adam.Smitha( deschutes.org> Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June 13th? Thanks, John Shepherd 1 - Disclaimer The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimeeast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. William Groves From: William Groves Sent: Tuesday, May 22, 2018 8:15 AM To: 'Carol Macbeth' Cc: Adam Smith; Tom Bishop Subject: RE: withdrawal of application 247-18-000179-A and 182-A Attachments: Continue with vote on my church application; Request for application withdrawl Attached. Let me know if you have any questions. Will Groves Senior Planner, CFM t 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www,deschutes.org/cd Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Carol Macbeth <carol@colw.org> Sent: Tuesday, May 22, 2018 8:08 AM To: William Groves <William.Groves@deschutes.org> Cc: Adam Smith <Adam.Smith@deschutes.org>; Tom Bishop <tom@bishoptrust.com> Subject: Re: withdrawal of application 247-18-000179-A and 182-A Hi Will, My understanding from Tom Bishop is that you told him the application was withdrawn. Was the application withdrawn? Can you forward me that information? Thanks! Best regards, Carol Macbeth 2018-05-22 7:54 GMT -07:00 William Groves <William.GrovesAdeschutes.org>: Hi Carol, John and his attorney decided that they wanted to proceed and requested the Board reopen the oral and written record. I'll send you a copy of that order as soon as I get a copy and I'll notice you of the hearing. We're going to do try to do it ASAP, which might be as soon as June 4t". 1'II confirm the hearing date with you via email and mailed notice. Thanks, Will Will Groves Senior Planner, CFM a 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd 1106 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Carol Macbeth <carol@colw.org> Sent: Monday, May 21, 2018 7:34 PM To: William Groves <William.Groves@deschutes.org> Subject: withdrawal of application 247-18-000179-A and 182-A Hi Will, Hope all's well with you! I understand from Tom Bishop who apparently had a chance to speak with you Friday that Mr. Shepherd withdrew his application. Can you forward me that information? Thanks! Best regards, Carol Carol Macbeth Staff Attorney Central Oregon LandWatch Carol Macbeth Staff Attorney Central Oregon LandWatch William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Thursday, May 17, 2018 3:24 PM To: William Groves; Dan Dalton; Adam Smith Subject: Request for application withdrawl Follow Up Flag: Follow up Flag Status: Flagged Hey, Will. So, my attorney, Dan Dalton, has been speaking with Adam Smith about LUBA's recent decision to reverse the County's text revision allowing churches. Adam suggested to Dan that I withdraw the application since, under the new circumstances, the Commissioners now have no choice but to deny it. This makes sense to me and I hereby request that the application be withdrawn. Sincerely, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 21, 2018 1:16 PM To: William Groves Cc: Dan Dalton; Adam Smith Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June l3th? Thanks, John Shepherd William Groves From: Adam Smith Sent: Monday, May 21, 2018 1:52 PM To: 'John Shepherd'; Dan Dalton Cc: William Groves Subject: RE: Continue with vote on my church application John, To clarify, Dan Dalton and I spoke this morning about options moving forward. I certainly shared my point of view. However, it is ultimate your decision after you consult with your attorney on how you want to proceed. All options present some level of risk to you, and it is imperative that the decision is ultimately your own. Notably, I argued that withdrawing your pending application made sense if the goal was to provide time for the County to either appeal LUBA's decision or reconsider the text amendment on remand. However, withdrawing the application and instead proceeding with a lawsuit against the County doesn't make sense for a number of reasons. Obviously, County staff does not favor a federal lawsuit and will likely defend such a case vigorously. Instead, your pending application likely provides the forum for you and COLW to dispute if the un -amended Deschutes County Code violates RLUIPA. To date, the parties have not fully vetted or briefed that issue in front of the Board. There may be procedural and substantive risks to this approach that you should discuss with your attorney. For example, COLW may argue yet another procedural flaw. Or, either the Board or LUBA may decided the RLUIPA issue against you, or avoid the issue in its entirely and focus instead on one of the numerous other arguments raised by COLW. If you have any questions or comments, I recommend that you talk further with your attorney. As noted, the decision on how to proceed is your own. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 that Fax: (541) 617-4748 adam.smith(a.deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 21, 2018 1:16 PM To: William Groves <William.Groves@deschutes.org> Cc: Dan Dalton <ddalton@daltontomich.com>; Adam Smith <Adam.Smith@deschutes.org> Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June 13th? Thanks, John Shepherd William Groves From: Adam Smith Sent: Monday, May 21, 2018 5:14 PM To: 'Dan Dalton'; 'John Shepherd' Cc: William Groves; Peter Gutowsky Subject: RE: Continue with vote on my church application FYI. The Board agreed to re -open the record. Will Groves will coordinate options for the second hearing in the near future. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smith(a-)deschutes.orq THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION, IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: Dan Dalton <ddalton@daltontomich.com> Sent: Monday, May 21, 2018 2:36 PM To: William Groves <William.Groves@deschutes.org>; Adam Smith <Adam.Smith@deschutes.org>; 'John Shepherd' <shepherdsfield@gmail.com> Subject: Re: Continue with vote on my church application That is confirmed. The 150 day clock is being extended 60 days. As I told Adam, I have a trial that starts July 9 that will go for two weeks so if we can have the hearing in early June or mid August, that would be appreciated. Thanks! Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 1 F: 313.859.8888 E: ddalton daltontomich.com www.daltontomich.com www.attorneysforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: William Groves <Will iam.Grovesa,deschutes.org,> Date: Monday, May 21, 2018 at 5:31 PM To: Dan Dalton <ddaltoiigdaltontomich.com>, Adam Smith <Adam.Smithgdeschutes.org>, John Shepherd <she fierdsfield(a� ;mail.com> Subject: RE: Continue with vote on my church application Dan, Record reopening are allowed under the code below. Would you consider confirming in writing that the 150 -day clock is being extended? Typical extensions would be for 60 days. Thanks, Will 22.24.160. Reopening the Record. A. The Hearings Body may at its discretion reopen the record, either upon request or on its own initiative. The Hearings Body shall not reopen the record at the request of an applicant unless the applicant has agreed in writing to an extension or a waiver of the 150 -day time limit. B. Procedures. 1. Except as otherwise provided for in DCC 22.24.160, the manner of testimony (whether oral or written) and time limits for testimony to be offered upon reopening of the record shall be at the discretion at the Hearings Body. 2. The Hearings Body shall give written notice to the parties that the record is being reopened, stating the reason for reopening the record and how parties can respond. The parties shall be allowed to raise new issues that relate to the new evidence, testimony or criteria for decision-making that apply to the matter at issue. Will Groves f Senior Planner, CFM a1, x � 117 NW Lafayette Avenue I Bend, Oregon 97703 g "F PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd 000 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Dan Dalton <ddalton@daltontomich.com> Sent: Monday, May 21, 2018 2:19 PM To: Adam Smith <Adam.Smith@deschutes.org>; 'John Shepherd' <shepherdsfield@gmail. com> Cc: William Groves <WiIlia m.Groves@deschutes.org> Subject: Re: Continue with vote on my church application We will proceed with the application. Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 1 F: 313.859.8888 E: ddalton@daltontomich.com www.daltontomich.com www.attornevsforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. From: Adam Smith <Adatn.Smith(i�deschutes.org> Date: Monday, May 21, 2018 at 4:51 PM To: John Shepherd <shepherdsfielda,gmail.com>, Dan Dalton <ddalton@daltontomich.com> Cc: William Groves <Will iam.Grovesadeschutes.or> Subject: RE: Continue with vote on my church application John, To clarify, Dan Dalton and I spoke this morning about options moving forward. I certainly shared my point of view. However, it is ultimate your decision after you consult with your attorney on how you want to proceed. All options present some level of risk to you, and it is imperative that the decision is ultimately your own. Notably, I argued that withdrawing your pending application made sense if the goal was to provide time for the County to either appeal LUBA's decision or reconsider the text amendment on remand. However, withdrawing the application and instead proceeding with a lawsuit against the County doesn't make sense for a number of reasons. Obviously, County staff does not favor a federal lawsuit and will likely defend such a case vigorously. Instead, your pending application likely provides the forum for you and COLW to dispute if the un -amended Deschutes County Code violates RLUIPA. To date, the parties have not fully vetted or briefed that issue in front of the Board. There may be procedural and substantive risks to this approach that you should discuss with your attorney. For example, COLW may argue yet another procedural flaw. Or, either the Board or LUBA may decided the RLUIPA issue against you, or avoid the issue in its entirely and focus instead on one of the numerous other arguments raised by COLW. If you have any questions or comments, I recommend that you talk further with your attorney. As noted, the decision on how to proceed is your own. Thanks, -Adam D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 that Fax: (541) 617-4748 adam.smith@deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 21, 2018 1:16 PM To: William Groves <William.Groves@deschutes.org> Cc: Dan Dalton <ddalton @ daltontomich.com>; Adam Smith <Adam.Smith@deschutes.org> Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June 13th? Thanks, John Shepherd The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more easeful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. RM The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here. William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 21, 2018 1:16 PM To: William Groves Cc: Dan Dalton; Adam Smith Subject: Continue with vote on my church application Hi, again, Will. Dan Dalton and Adam Smith spoke again today and concluded that we should attempt all administrative remedies on my church application, rather than withdrawing it. Therefore, I would like my application appeal to be voted on after all by the Commissioners. Question: Will the public be able to input to the Commissioners' meeting or will it be a time just for them to discuss the application? In other words, if my attorney flew in, would he have an opportunity to testify? And is the Commissioners meeting still set for June 13th? Thanks, John Shepherd REVIEWED Q& LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Administrative Decision in File No. 247 -18 -000053 -AD ORDER NO. 2018-034 WHEREAS, on May 81h, 2018, staff issued an Administrative Determination on Application No. 247 -18- 000053 -AD; and WHEREAS, Section 22.28.050 of the Deschutes County Code authorizes the Board of County Commissioners ("Board") to initiate review of any administrative action or a Hearings Body's decision within 12 days of the date of mailing of the final written decision of the Planning Director or lower Hearings Body; and WHEREAS, the Board has given due consideration as to whether to review this application; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. Should a timely appeal of Administrative Decision No. 247 -18 -000053 -AD be filed, the Board of County Commissioners will serve as the hearings body for the appeal consistent with applicable provisions of DCC, including DCC 22.32.027(B)(4). Section 2. The review shall be heard de novo in order for the Board to interpret DCC 18.116.330 and other applicable provisions. Section 3. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to notice pursuant to DCC 22.24.030 and 22.32.030. Dated this I b of(If�'�—, 2018 ATTEST: s Recordin St , tary PAGE 1 of I- ORDER No. 2018-034 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, h 'r PHILIP G. NDERSON, Vice Chair TAMMY BANEY, CommAoner 64575 MOCK RD, BEND, OR 97701 24718000053AD PINEHURS T RD z z a 19w cn x TUMALO RESERVOIR RD Deschutes County GIS, Sources: Esri, USGS, NOAA n { William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Thursday, May 17, 2018 3:24 PM To: William Groves; Dan Dalton; Adam Smith Subject: Request for application withdrawl Follow Up Flag: Follow up Flag Status: Flagged Hey, Will. So, my attorney, Dan Dalton, has been speaking with Adam Smith about LUBA's recent decision to reverse the County's text revision allowing churches. Adam suggested to Dan that I withdraw the application since, under the new circumstances, the Commissioners now have no choice but to deny it. This makes sense to me and I hereby request that the application be withdrawn. Sincerely, John Shepherd William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, May 7, 2018 4:55 PM To: William Groves Subject: 2nd reply to COLW Attachments: 20180503_171657[1]jpg; 20180503_171635[2]jpg; Shepherd 2017_437_notarized.pdf; Gmail - returning your call.pdf; PDF response to COLW.pdf Dear Will, please find attached my written response to COLW latest attack. Please also find attached four documents: 1. A photo of the original cattle staging area where the previous owner penned, watered and fed the cattle. 2. A second photo of the same. 3. Our MOU with the County refuting our assailants attack that we operated our wedding venue last year in violation of the law 4. A statement from the Deschutes County Tax Assessors office stating that we our farm use was audited and verified. 5/7/2018 Gmail - returning your call MGmail John Shepherd <shepherdsfield@gmaiI-com> returning your call Eric Sexton <Eric.Sexton @deschutes.org> Thu, May 28, 2015 at 11:49 AM To: "shepherdsfield@gmail.com" <shepherdsfield@gmail.com> Mr. Shepherd, It was me that called earlier, not Scot Langton. You will be receiving a letter from our office regarding the farm audit. I thought it would be courteous to talk to you first to give you heads up about what the letter will entail. But since you are busy today and tomorrow, and I am not available today after 3:30 or after 1:30 tomorrow, I will summarize it for you in this email. After reporting to Scot Langton following my physical inspection of your property on 5/26/2015, and taking into consideration your statements regarding how your property will be used for farm use the remaining of the year, it is our opinion that your property is in compliance with the exclusive farm use special assessment program. If time allows on our end, we may request to do a brief follow up meeting later in the year. A review of your property's farm use will be conducted next year, in the same manner as the one conducted this year. It is also the Assessor's Office and Deschutes County's Legal Department opinion that the acreage described in your approved conditional use permit for a private park should be disqualified from the exclusive farm use special assessment program. The acreage described in your approved private park CUP is 2.60 acres. This 2.60 acres includes the Assessor's 1.00 acre farm site it has set up on your property, which means only 1.60 acres out of the 2.60 acres would be disqualified. Based on my initial estimate, the ten years of deferred taxes related to the disqualification of 1.60 acres would be around $148.00. This deferred tax amount would not be due nor collectable at this time, but would remain as a potential additional tax liability on your property. I also estimate that your annual property taxes would be $30.00 to $50.00 greater than if the 1.60 acres were not to be disqualified. An official notification of the Assessor's office opinion of your farm deferral status along with notice of intent to disqualify the 1.60 acres will be mailed to you. Call or write with any questions. Eric Sexton Deschutes County Assessors Office Property Appraiser 541-388-6692 https://m ail.g oogle.com/mail/u/0/?ui=2&ik=fd 9f4a ae63&jsver=awrWbfDF cFs.en. &cbl=g mail_fe_180429.l 5_p3&view=pt&msg=14d9bd b6695b389e&q=eri cs°/a40desch 5/7/2018 Gmail - returning your call erics@deschutes.org From: John Shepherd[mailto:shepherdsfield@gmail.com] Sent: Thursday, May 28, 2015 11:09 AM To: assessor_ Subject: returning your call Mr. Langton, My wife texted me that you wished to speak with me today before 3:30, presumably about the audit. I'm sorry, but I'm teaching and in class. Is there something I can answer over email? John Shepherd https://mail.g oogle. com/m ai I/u/0/?ui=2&ik=fd 9f4aae63&jsver=awrWbfDF cFs.en, &cbl=g mail_fe_180429.15_p3&view=pt&msg=14d 9bd b6695b389e&q=eri cs%40desch Answers to COLW arguments My assailant, COLW, now questions whether Deschutes County has the authority to permit a church. Senior Planner Will Groves addressed this question in a recent email exchange with me. He has entered the county's position as testimony in this case. Mr. Groves determined that In a EFU zone, Note that Churches aren't "outright" uses, but are: 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. Specifically, a church is subject to site plan review. Remember, this saga began when I was cited by Code Enforcement with a code violation notice stating, "It has come to our attention that a church has located in your home without proper permits". Furthermore, the Cowboy Church in Redmond, pastored by Dave and Ramona Hulick, was also required to obtain an Administrative Decision and Site Plan Review. Finally, bear in mind that our assailant argued just weeks ago that churches should not be even allowed to operate in my zone. And today they are also arguing that churches should not be allowed to operate in a residence at all! So, here you have them simultaneously arguing that churches don't even need a permit while also arguing that churches can't operate in a residence without permission. (See #2 below) 2. The question of residential vs. non-residential churches was addressed thoroughly in the testimony submitted earlier and in the testimony from my attorney I also submitted earlier. Suffice now to say that County should not issue a precedent setting ruling on this incendiary question when LUBA has previously declined to rule. If LUBA wants to defy RLUIPA by singling out House Churches for persecution, then let them go to Federal Court, not you. 2. COLW claims that our "farm management plan was not implemented," quoting LUBA: "However, the farm management plan was not implemented." While LUBA did state that in their 2015 ruling on our private park, their opinion was wrong and uninformed. A. First, LUBA was not investigating that question so I presented no contrary evidence. B. The implementation of the original FMP proposed by the original owner was inspected AND APPROVED by the county before the farm dwelling application was approved. The county found that the entire perimeter was fenced with barbed wire and that cattle were grazing the property. (see attached photos of original staging area.) This inspection prior to approval was the county's normal course of action. They would not have approved the farm dwelling permit unless the actual use was inspected and improved. C. Tax records show that we have consistently maintained our farm use status through active farm use. Besides our filing a required annual farm use report, Deschutes County Tax Assessors office audited our farm use twice to confirm adequate use to uphold our farm use status. In May, 2015, they actually sent out a representative, Eric Sexton, to inspect the grounds and observe the cattle. We also gave them copies of our Schedule F IRS farm reports. After this audit and inspection, they affirmed our farm use status. In an email dated 5.28.2015, (see attached), Mr. Sexton stated, "After reporting to Scot Langton following my physical inspection of your property on 5/26/2015, and taking into consideration your statements regarding how your property will be used for farm use the remaining of the year, it is our opinion that your property is in compliance with the exclusive farm use special assessment program." What then does "farm use" status mean? According to the Oregon Department of Revenue circular, "If land is in an EFU zone and is used primarily to make a profit by farming, it qualifies for special farm -use assessment." Thus, according to Deschutes County Tax Assessor, my land was and is "used primarily to make a profit from farming." D. Photos of our cattle, and copies of our livestock purchase and sales receipts have been presented as evidence of our farm operation. E. An aerial photo of our ranch was included in Will Groves' presentation to the board, clearly showing the irrigated acreage that we added. F. COLW admits in their argument that the basis of LUBA's opinion was formed from my "testimony from the applicant to the Oregon Tax Court" (their words) and to the Deschutes County Tax Assessors office regarding the farm -ability of our high desert plateau acreage. I argued that since the land up on the plateau is unirrigated, rocky, Juniper covered and unsuitable for farming, then it is technically considered "wasteland". And, by Oregon law, "wasteland" acreage does not need to be farmed or ranched in order to qualify for farm use tax status. The Tax Court declined to hear my case and the Tax Assessors office and I agreed that I would graze the plateau acreage and thus maintain my farm use status. LUBA extrapolated from that testimony that I was doing no farming at all. That is not true. We have boarded horses, raised poultry for eggs, raised sheep and cattle on the property, especially on the lower, farmable areas. Again, this LUBA opinion was not founded on any examination of facts or history but totally on a statement I made evaluating the suitability of wasteland for farming. COLW offers no evidence that the original owner "failed to implement" her FMP. Relying entirely on a tax argument I made about land suitability, COLW offers ZERO evidence that I have failed to farm and ZERO evidence that I have failed to raise livestock or maintain fences, as they assert. Instead, I have presented plenty of evidence of a past and present farming operation. Furthermore, this referenced 2015 LUBA opinion was regarding our private park permit, granted by a Hearings Officer but overturned by LUBA. When our assailant attacked our previous church permit before LUBA in 2017, they again raised this attack. LUBA however, refused to rule on it. I would discourage County from ruling on that which LUBA did not. Finally, a careful examination of the DCC 22.20.15 finds that the permit violation must be on going: "If any property is in violation of applicable land use regulations and/or the conditions of approval of any previous land use decisions..." Notice the present tense verb "is". "Is in violation". Both the intent and the letter of the law is to require resolution of past code violations and current compliance before new permits can be issued. For example, failure to obtain an electrical permit prohibits issuance of a septic permit until the electrical permit is resolved. No one is arguing that my FMP is currently in violation. And if County rules here that any perceived or accused past lapse or alteration from the original specific farm management plan violates a farm dwelling permit, then County sets a very dangerous legal precedent that could lead to people being forced from their farm dwelling homes. 4. Our assailant desperately continues that our wedding venue is a commercial event venue. Clearly we do usually charge for our venue (some events, such as charity balls for youth, are free.) But weddings, as community and family outreach, are an integral part of our ministry, as defined by our IRS 501c3 mission statement. Besides, other churches also charge for access to their ministry services such as weddings, day care or parochial school. There is no law against that. The fact, however, is that Shepherdsfield charges a small fraction of what our competition charges ($2700 compared to $17,000 at Faith, Hope, Charity, see earlier exhibit) and offers much more in ministry, including officiating, counseling and assistance, distinguishing us from a strictly commercial enterprise. We are always on site, helping and ministering with every wedding! And the fact that we have a web site to promote our wedding ministry is similar to other churches and non -profits that use the internet to promote their services such as day care, preschool or parochial school. Even COLW has a website used for fundraising. Our assailant continues to argue that we were violating the law by hosting weddings in 2017. The fact is that we had a Memo Of Understanding (MOU) with Deschutes County that allowed us to continue our ministry while our assailant attacked our permit and while our case worked its way through the court. (see attached MOU.) And before that, during an earlier attack from COLW, Nick Lelack and I negotiated a Voluntary Compliance Agreement that allowed us to continue serving the public while we defended ourselves from another COLW legal attack. Our assailant presents a newspaper article (their attachment 3) from 2010 regarding a citizen being found guilty for hosting weddings without a permit. However, in the article, Judge Haslinger is quoted as saying, "I conclude that Ms. Brown cannot raise a constitutional challenge to the application of the Deschutes County code to her property until she can establish that her proposed use of the property cannot be approved as a conditional use." Judge Haslinger added "the application would not necessarily be denied." Thus, Judge Haslinger held out the possibility of both a CUP and a Constitutional argument, both of which I have! Our assailant ignores the obvious fact that we have been granted both a private park permit and twice granted church permits. COLW has managed to overturn two of those, not on merit, but on technicalities and our current church permit is now active and valid. Conclusion The Commissioners really have only 2 questions to ask: 1. Are we a valid church according to Deschutes County definition? Since we have a current 501c3 non profit status, the answer is "yes". 2. Is our land use application compliant with health and safety standards determined by Deschutes County Land Use? Senior Planner Will Groves has determined that we are. Beyond those two questions, the Commissioners have no other authority to reject our permit. In the 2018 permitting of the Hulick's "Cowboy Church" under equal circumstances, Deschutes County has established a legal precedent. In that Oregon allows church associated activities to be performed by a church, Deschutes County has no legal authority to restrict those activities beyond health and safety concerns. Therefore I urge the Commissioners to uphold the permit of Shepherdsfield Church. REVIEWED LEGAL COUNSEL For Recording Stamp Only AMENDED AND RESTATED DESCHUTES COUNTY MOU: Shepherdsfield Church Approval DOCUMENT NO. 2017-437 This Amended and Restated Memorandum of Understanding ("Amended MOU") is made and entered into by and between Deschutes County, a political subdivision of the State of Oregon, acting by and through the Deschutes County Community Development Department, hereinafter referred to as "County," and John Shepherd, Stephanie Shepherd and Shepherdsfield Church, hereinafter referred to as "Shepherd," collectively referred to as "Party" or "Parties." The Parties agree as follows: Effective Date and Termination Date. a. Unless terminated earlier as provided for herein, this Amended MOU shall be effective when signed by both Parties until a date that is six (6) months after the date upon which there is a final decision regarding County approval in 247- 16-000-1598P and 161 -AD or subsequent land use applications submitted by Shepherd pursuant to paragraph 3 below. b. This Amended MOU may be revised or modified by written amendment when both Parties agree to such amendment. c. This Amended MOU may be terminated for convenience by either Party within thirty (30) days after submitting a written notice to the named Parties outlined in "Notice and Contact Information" section i et - Agreement Documents. This Amended MOU includes Pages 1'through 3. Nestice and Contact Information. Except as, otherwise expressly provided in this Amended MOUS any communications between the Parties hereto or notices to be given hereunder shall be given in writing; to Shepherd or County at the address or number set forth below or to such other addresses or numbers as either Party may hereafter indicate in wrtiue, Delivery maybe by personal delivery, electronic mail, facsimile, or mailing the same, postage prepaid. ry notice required or permitted to be given pursuant to this Agreement shall be given in writing and to the following: �,a'ddnessed HEPHE�- COUNTY: j i Name: John Shepherd Name: Nick Lelack 1 Title: Pastor Title-.* director Dept: COG Shepherdsfield Church Fac: Deschutes County Addrs: 71120 Holmes Road Addrs: 117 NW Lafayette Ave. City/St: Sisters, OR 97759 City/St: Bend,. OR 9TT03 Orc: 541-548-5905 Ofc: 541-385-1708 i E -Mail: shepherdsfieldCciCgmail. com ; E -Mail: nick. lel ack(a)deschutes-.oro ------------------- The purpose of this -Amended MOU is to amend,and restate a previous-MOU recorded at,2017-03887 in the Deschutes County Official Records. ("Original MOU") pertaining to wedding events and other: gathedngs.tra.Wheld_-at .#m Shepherdsfield Church pursuant to County approval in 247-16-000-159SP and 161 -AD ("Church Accessory Events'). Paragraph "b" on. page 1 contemplates that the Original MOU could only be amended` when agreed by bottt f3 i ties writing. Paragraph "c" on page 1 contemplates that the Original — Ou could only be terminated in writing. The Parties agree that because of changed circumstances involving legal challenges to the County's approval in 247-16-000-159SP Amended MOU / Deschutes County - Shepherd Document No. 2017-437 Page 9 of 6 and 161 -AD, the Original MOU should be renegotiated. This Amended MOU seeks to preserve the cooperative relationship between Shepherd and County, terminate the terms and provisions as set forth in the Original MOU, and revise the. responsibilities of the Parties as they address implementation of County approval in 247-16-000-159SP and I ofsubsequent land use applications submitted by Shepherd pursuant to paragraph 3 below, in the face of continued legal challenges, remands, and appeals. TERMS THEREFORE,- in consideration of the mutual promises and agreements contained in this Amended MOU, Shepherd and County agree as follows: The Flartibs mutually agree that the Original MOU recorded at 2017-03887 in the Deschutes County Oficial Records is hereby terminated. 2. If determined to be necessary,, County, staff may, initiate a text amendment to the Deschutes County Co& clarifying how religious land uses are processed and approved: Shepherd acknowledges that County staff, in their sole discretion, shall decide if and when to initiate such a text amendment. Further, if a text amendment is initiated, Shepherd acknowledges that County makes no guarantees that said amendment will ultimately be a€W--d and sustained if appealed. Thereby, County makes no representations that a text amendment will be adopted, that a text amendment will be sustained if appealed, or that a text amendment will ensure approval of the proposed Church Accessory Events or other similar uses. 3. Shepherd may submit subsequent land use applications seeking approval of the proposed Church Accessory Events or other similar uses. Shepherd acknowledges that such applications may be submitted at any time, either before or after County staff possibly initiates a text amendment pursuant to paragraph 2 above. 4. The Parties mutually agree that it is their collective interest to expedite the final resolution of Shepherdsfield Church, and particularly resolve if Church Accessory Events will ultimately be allowed after all legal challenges, remands, and appeals are complete. As outlined in the County's June 2, 2017 letter to Shepherd (attached hereto and incorporated by reference Herein), the most expedited' resolution of the matterlik* occurs if Shepherd immediately submits a subsequent land use application pursuant to paragraph 3 above. Consistent with the June 2, 2017 letter, the County shall waive Shepherd's application fee and will endeavor to expedite said application so long as Shepherd submits the new application by July 14, 2017. 5. Shepherd shall comply, with all conditions of 247 -16 -000 -159 -SP and 161 -AD for any church or Church Accessory Events, including weddings, on the property. If Shepherd submits subsequent land use applications pursuant to paragraph 3 that are approved by County, Shepherd shall instead comply with all conditions of approvat associated with such pera"U. 6. If Shepherd elects to not submit subsequent land use applications pursuant to paragraph 3, Shepherd shall cease to conduct any and all Church Accessory Events (previously booked or not) within 90 days of any reversal or denial of bounty's approval of 247 -16 -000 -159 -SP and 161 -AD when such action is a final decision and either not subject to further legal challenge or appeal as recognized by County, or not further challenged or appealed by either Party. In the alternative, if Shepherd submits subsequent land use applications that are approved, Shepherd shall cease to conduct any and all Church Accessory Events (previously booked -or rwt) w4i4n.90. days of any reversal or denial of such subsequent approvals when such actions are a final decision and either not subject to further legal challenge or appeal as recognized by County, or not further challenged or appealed by either Party. 7. In reliance upon Shepherd's compliance with the terms of this MOU, and provided that Shepherd does comply with the terms of this MOU, County will refrain from code enforcement or other legal proceedings associated with the activities authorized by County in 247 -16 -000 -159 -SP and 161 -AD or potentially authorized by County if Shepherd submits subsequent land use applications pursuant to paragraph 3.. 8. Shepherd acknowledges the legal uncertainty regarding the ultimate approval and sustainment of Church Accessory Events pursuant to 247-16-000-159SP and 161 -AD or pursuant to subsequent land use .applications submitted pursuant to paragraph 3 above. As such, Shepherd acknowledges the risk of continuing to enter into contacts for Church Accessory Events or otherwise allow such Church Accessory Events to continue. Amended MOU / Deschutes County - Shepherd Document No. 2017-437 Page 2 of 6 9. If any provision of this Amended MOU shall ever be declared defective, void or voidable, or otherwise struck down or invalidated, the invalidation shall affect that particular provision only. The remaining provisions shall continue in full force and effect. 10. This Amended MOU and all of the terms and provisions hereof shall be binding- upon and shall inure to the benefit of the Parties and their respective officials, employees, agents, heirs, representatives, successors and assigns. 11. All Parties understand and agree that this Amended MOU states the entire agreement between the Parties, and that the terms of this Amended MOU are contractual, binding on the Parties, and not merely recitals. W WETNESS WHEREOF, the authorized representatives of Shepherd and County have caused this Amended MOU to be executed on the date listed with the representative's signatura. Shepherd BY: _ ... - L? ._ t Signature Name: John Shepherd -------- --------- __- Print or Type Name Title: Pastor Date: \�-- STATE OF OREGON Deschutes County BY: Signature Name: Nick-Lelack.__......... .— ---- ---------- _.-__ Print or Type Name Title: Director,, CDD , , Date..7/ ) ss. County of Deschutes This Amended MOU was acknowledged before me on kj\" ) ., ; / P017, by John Shepherd, � in his individual capacity, on behalf of Stephanie Shepherd, and as the Pastor of Shepherdsfield Ghurc- I 0x1110'o OFFICIAL STAMP Ntary ublic f r OregonASHLEY LOWELL BORDEN NOTARY PUBLIC•OREGON My commission expires:COMMISSION N0.932186 MY COMMISSION EXPIRES SEPTEMBER 15, 2018 STATE OF OREGON ) } ss. County of Deschutes } '. This Amended MOU was acknowledged before me on ��, 2 17, by Nick Lelack as the Director of the Deschutes County Community Development Departme it. OFFICIAL STAMP 'N TRACY ARLENE GRIFFIN Notary P lic for NOTARY PUBLIC -OREGON My co ission� COMMISSION NO. 921861 MY COMMISSION EXPIRES NOVEMBER 12, 2017 Amended MOU 1 Deschutes County - Shepherd Document No. 2017-437 Page 3 0# 6 ATI�� DESCHUTES COUNTY LEGAL COUNSEL via emad John Shephzrd, L: 71 120 Holmes Road.Y sisters. 0I: Oregon 97703-1960 '� reiephurle: 3n -ars 3 Fac3irtliia; 54 i -o '17-4 i4b __�... _.fir`:.._........ _...:J .. .:, r .. ... .....:... iitka viii ackuUwieug is reccipi oi`your emaii dared May 3v, 2O i 7 inciuding the attachment, f)eschutes County does not agree with all of the statements and allegations in the email and attachment. Likewise, it is hard to �%q4 mia - negotiating amicably against the threat of lawsuit. Nonetheless, both Deschutes County and Shepherdsfleid Church agree that LUBA's decision in this rnatter was disappointing, both Because LUBA did not agree .with the County Hearings officer's comprehensive analysis i ha. iris ., p,... J. a. t£ tYf, t4 ately LT s .:" thal p, iG::i F: posturing surrounding your application will Iikely continue. After re-evaluating options for all parties involved, so�ltutes C;uutity is presenting, a new alternative that ensures a more expedited final resolution. further, as outlined below, Deschutes County does not agree that you have any basis to either threaten or iititialyc a federal lawsuit at this time. Atternattve Approach r'�-~'__ ��= Cosaetty' or:i i al three-ptot: proposal was aimed at benefitting you and thereby eliminating for both w3 JL:E�3Wv.a parties the risks associated with a federaf fawsui"t. The County proposed the fbilowing: (1) the County would appeaf LUBA's decision (you, of course, had the option to appeal as well),, (2) the County would initiate a text atricndrnent c-larifying the intent of the Deschutes Canty Code as oppied to rvguiriag you t� propose such all amendment; and (3) the County would consent to substantralty amend' the tennis of the current Deschutes Couro Ii OU., Shepherd Church Approval, Document No. 2076-692("Original MOU"j. In return, the County requested a release/waiver provision in the amended MOU to ensure the aforementioned actions intended to • ncl ft.yDU would not later he used against the County. As stated, our original proposal was imended to elirrsst}ate ftrr bmh parties the need ar�d risks associated v6th a federal fawsztit. UnIll',rtunatcly, your May 3a email indicates that our original proposal is not going to work. After re -considering options and thoroughly reviewing LUBA's decisions conceming The Religivzrs Land Use and Institutionatized Persons Act ("RLUIPA"), the most likely outcome of the County's original three -prong; David Doyle, Legal Counsel I Christopher Bell, Assistant Legal Counsel I John E. Laharty, Assistant Legal Counsel I D. Adam Smith, Assistant Legal Counsel Page 4 -,f -6 Connie sem, POW"alt I PauDae►lRard Parole LW sW-I s�tha r;� Caarr aAppcajs either rcquires LUBA to remand the ease back it)iiesciie�tes County, car you submit a new application after a text amendment clarifying the intent of the code is adopted, appealed, and sustained, Both outcomes likely result in the Board of County Commissioners ultimately reconsidering your application in a number of months. instead, another option is that you immediately .submit a new SPOlWa ro Lmsed an the premise y?Ztr expresses ?SLlnterous times during our meeting oil May 26, 2017: you now believe based on LUBA's opinion that the DeschLites County Code violates RLUIPA. Although County staff does not necessarily agree with that opinion, we nevertheless concede that vetting the issue through the County's application and. hearing process ensures a more expeditcd final resolution, Although there were overtures to an RLUIPA "equal terms" issue in the uroceedinks before the Hearings Officers And LUBA, to date that issue hasnotbeen fully briefed.` More importantly, the Board of County Commissioners has not specifically considered the issue, It is likely that the County Commissioners would rather develop the record and make the iinitial decision, especially considering that the Commissioners niay have at7di6onal'opfions pursuant to RLUI—VA's "safe harbor''provision:' A government may avoid the preemptive force of any provision of this Act by changing the _policy Qi' pracCice that resui'ts in a substantia`'i" burden on religious exercise, by retaining Tile po'iicy or prautce and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that S- ,,. r-,-s'cffcs�istanfia)`burdem 42bSCy2011f1ce-3(e) If you re -apply immediately, it is anticipated that Central Oregon LandWatch ("COLW") will again oppose your application arguing that the County Code does not violate RLUIPA. 1 -hereby, this new option wffi -1,0W ay° ensure that the RLUIPA issue will be fully briefed and in fro:tt of the Board of County Commissioners in a more expedited fashion. Depending on the Board's decision, it is a reasonable assumption that either you or COLW --w'.14-subsequently appeal. to LUB:A,thereby hopefully ensuringfhat LUBA directly considers the RLUIPA issue as well as the ofite-r tllree assignments oferror initially raised by COLW, Although Deschutes County cannot provide assurances that your application will ultimately be approved, it is crear that the most expedient resolution is for you to submit a new application_ Deschukes County still seeks to continue our "cooperative relationship" as noted in the Original MOCJ, and thereby will waive all applications and hearing fees if you decide to immediately re -apply. Further, the County will do its best to expedite that applrcarion ana minimize application requirements by reiying as much as possibie on frit"ormation you already submitted. Likewise, the County will consent to amend the Original MOU to reference your new application and to ensure that the terns apply through 2018. Please note that the County may withdraw the aforementioned appeal to the Court of Appeals because your new app ication may final<e the appeai� ,oet. lsc, Cou try Sir``;} ' When considering RLUIPA issues, the County is not aware of a single instance where LUBA reversed prior to the subject case concerning Shepherdsfield Church. Instead, in all cases the County is aware of, LUBA either affirmed the local government decision or remanded on the RLUIPA issue or another issue. Thereby, in all previous cases not affirming the local government, LUBA likely placed the local government in a better position to either directly resolve the RLUIPA issue, or indirectly resolve the underlying dispute giving rise to ti;e 1t1A is� a ` "&Vs' olsinicon in ?roung v Jackson Couoty, 5S OR UJIBA 6412€10&}, off r# Or. App 290 {20113} presersts the level of analysis Ly necessary to support an RLUIPA "equal terms" claim. Further, several other. LU6A cases present alternative analysis relevant to RWIPA "substantial burden" claims. The County will likely rely on LUBA's RLUIPA opinions to structure its own analysis. 3 RLUIPA's "safe harbor" provision more naturally applies to a RLUIPA "substantial burden" claim. However, at least several federal courts directly or indirectly have applied the "safe harbor" provision to all four RLUIPA claims, including "equal -terms." Although in a different federal circuit, Civil Liberties for urban Believers v. City of Chicago, 342 F.3d 732, 762 {7`i` Cir. 2003} directly holds that the "Safe harbor" provision applies to all RLUIPA claims. Rage 5 of 6 teat' wait,fo r theIfi nal resolution of oris case before proposing a text amendment clarifying the intent of the code to ensure such efforts are not ,premature. Federal awsinit�I LLA Returning to your May 30 email, it must be addressed that you claim you are "ready and willing to file a federal iawsuit seeking bath damages and legal fees," I strongly question whether you realistically have any basis to either threaten or initiate a lawsuit against Deschutes County. In this context, please keep tine followinb poi tits in mind: Deschutes County does riot agree that you have presently been harmed, A County Hearings Officer found -that your application satisfied all applicable criteria and accordingly approved your application (see 247-16-000159SP and 161 -AD). COLW appealed the County decision, ultimately to LUBA. LUBA applied fts own independent interpretation of Deschutes County Code; Deschutes County has no control or influence over COLW or LUBA, Nonetheless, while the appeal was pending, you voluntarily entered into the Original MOU that allowed you to continue to operate, The stated purpose of the Original MOU is "to establish a cooperative relationship between Shepherd and County and outline the responsibilities of the parties as they address implementation of County approval in 247-16-000-159SP and 161 -AD in the face of legal challenges, remands and appeals." • Pursuant to paragraph 4 of the Original MOU, you were required to appeal LUBA's decision to the Court of Appeals to ensure that "Church Accessory Events" were allowed to continue beyond the 90 - day period outlined in parugn-ap 5, • As noted above, County staff does not necessarily agree that the Deschutes County Code violates RLUIPA. In fact, your own past argument to the County Hearings Officer and LUBA presents a harmonious interpretation of the Deschutes County Code with RLUIPA, The C,ourlty clearly agreed with your interpretation at that time and relied on that interpretation to approve your application: • LUBA did not opine on three of the four assignments of error presented by COLW. Further, LUBA specifically did not determine that the Deschutes County Code violates RLUIPA because it found the RLUIPA argument "undeveloped." • Even if LUBA had considered RLUIPA when it reviewed the County Hearings officers interpretation of the Deschutes County Code, LUBA nonetheless still could have reversed because of the other three assignments of error, it is impossible to argue that LUBA would have sustained the County's apprmmi of your proposed use but for the Deschutes County Code's treatment of churches in the wildlife area combining zone. Please let me know as soon as possible if you intend to submit a new application as discussed herein. tf so, I will prepare draft amendments to the Original MOU for your consideration. Res }Ikwtft D, Adam Smith Deschutes County Assistant Legal Counsel ice Daniel Dalton Page 6 of 6 Introduction I appreciate how the Commissioners ruled in favor of religious liberty by removing the County ban on churches. I'm also happy to hear Commissioners Baney's and Debone's advertising that they support a strengthening of private property rights. I'm sure no one wants Deschutes County to be the first in the nation to ban House Churches. The motto of Deschutes County is "Enhancing the lives of citizens." That is what Shepherdsfield Church is trying to do: community outreach through children's drama, dyslexia therapy, volunteer marriage and family counseling, and low cost weddings where we officiate and/or provide a loving, supportive environment. We also generate approximately $1.5 million in economic activity for Deschutes County citizens, creating jobs and enhancing tourism. We enhance the lives of citizens. Now, contrast that to COLW (our assailant). Their six year grudge is no longer about protecting the environment, for we have gone far above and beyond to enhance our property for the environment. Observe their arguments: technicalities about names, false accusations about FMP compliance, attempts to harm farmers who switch crops, false accusations about 501c3 status, attempts to ban house churches. None of these attacks are within their non-profit mission statement of protecting the environment. Their grudge has morphed into a sociopathic vendetta wherein they will do anything they can to shut down our church and ministry, including shameless misrepresentation of the law and lying about the facts. You need to know that, for six years, they have caused my family and I misery, severe distress and expense. While the County and Shepherdsfield Church are trying to "enhance the lives of citizens", COLW is trying to harm them through endless harassment, frivolous lawsuits and legal bullying. I just want you, the Commissioners, to bear this in mind. Finally, since churches are a use permitted outright by state law, County only has two questions to decide: 1) Are we a valid church according to current DCC definition? 2)Do we meet health and safety standards considered in a site plan review? Our assailant nevertheless has posed numerous challenges and accusations which must be answered. 1. Is Shepherdsfield Church merely a "guise" for a commercial event venue? This is the accusation of our assailant. In answer: -Pastor Shepherd's ministry extends four decades, including pastoral, teaching, counseling, missionary and weddings. -Our current church, Shepherdsfield Church, began meeting in our house two years before we hosted our first wedding. -Our wedding ministry offers greatly discounted weddings (Faith, Hope and Charity charges $19,500 for fewer services than we offer at $2700.) -Our wedding ministry includes discounted officiating, and pre -marital and marriage counseling at no cost. Please see an attached letter (Exhibit F) written yesterday by a bride and groom with whom I met recently to advise and counsel for 2.5 hours. -Even when Pastor Shepherd does not officiate, both he and Mrs. Shepherd work hard to minister to the practical, emotional and spiritual needs of all our guests. Just look at the reviews on our Facebook page. Such as, "John and Stephanie made this an experience we will never forget and enhanced everything and worked tirelessly to make sure our wedding happened. These are two amazing people who love working with couples for their weddings. My wife and I are eternally grateful for all their hard work." Brandis Piper, March 22, 2018 "Shepherdsfield is a beautiful venue. We just had our wedding out there and it was amazing! John and Stephanie were so helpful, leading up to the wedding, as well as during the wedding weekend. John also officiated our wedding and he was both professional and personable. He even made us laugh during the ceremony, which helped relieve those wedding nerves. They provide so much, even stuff that isn't listed, all we had to do was ask. They are amazing, wonderful people who are willing to go the extra mile to make sure the wedding goes off without any problems." Callie Walker June 2, 2017 2. Farm Management Plan compliance -COLW falsely asserts that 1) my property is/was in violation of my Farm Management Plan and 2) that such violations prohibit any additional land use approval. They cite DCC 22.20.15 which states, "If any property is in violation (at present) of applicable land use regulations and/or the conditions of approval of any previous land use decisions... A violation means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal or through the review process of the current application..." Neither of those is the case. My property has NEVER been ruled out of compliance of my FMP and the review process has not determined this to be so either. My farming has been audited annually by the Deschutes Count Tax Assessors office and always found to be in compliance. I have also provided to the Commissioners a receipt of livestock sales for 2017 and photographic evidence of an active pasture. And even if my property had been found in non-compliance, simply bringing it into compliance would resolve the matter. This is just another false accusation leveled in desperation by COLW. The Farm Management Plan (FMP) attached to this property was initially implemented and approved by the County on approximately 2001. The proof of implementation is that the County issued a Farm Dwelling Permit after observing the FMP activity. While the original farm plan called for the raising of cattle and hogs, we have/are instead raising cattle and poultry. But never in history has a farmer been forbidden from changing his crop without new permit approval. Furthermore, condition #24 of my permit requires that we "continue existing farm operations on the property in compliance with the terms and conditions of prior permits..." While I don't think this required condition is legal and I know it was not equally imposed by Ramona and Dave Hulick's church just permitted in Redmond (see below), it does address our assailant's concern. Most importantly, the FMP was never ruled in violation by the County. In fact, we have consistently proven to Deschutes County Tax Assessors office that we are in compliance, thus maintaining our farm tax deferral. In fact, we have expanded our farming practice with the purchase and development of nearly six acres of pasture. Evidence of current compliance was already submitted as Exhibit D in the form of a livestock sales receipt. A 2018 cattle purchase receipt from Whitney Cattle LLC is now submitted as additional evidence of compliance (Exhibit G). 3. Who can apply for a church Administrative Review? -As pastor, president and legal representative of Shepherdsfield Church, I believe I have the right to apply for County Permits on behalf of the church. The Oregon Secretary of State's office lists John Shepherd as both "Registered Agent" and as "President". As "Registered Agent", I have authority to act on the behalf of Shepherdsfield Church. Furthermore, Oregon lists the "principle place of business" as 71120 Holmes Road, Sisters, which is my residence. It is up to Deschutes County whether their permits should be issued in the name of John Shepherd or Shepherdsfield Church. Remember, "church" is a use permitted outright in EFU. My application was not for permission to have a church but rather a request for an Administrative Determination and Site Plan Review. And DCD ruled: "Based on the application materials submitted by the applicants and the above analysis, staff concludes this application for an Administrative Determination and Site Plan Review for a Church in the Exclusive Farm Use/Lower Bridge Subzone (EFU- LB), within a Wildlife Area (WA) Combining Zone conforms to the standards for approval." Furthermore, in 2017, Deschutes County issued the exact same Administrative Determination and Site Plan Review approval for a church to Ramona and Dave Hulick under the exact same conditions and wording! (247 -16 -000613 -AD) I urge the Commissioners to dismiss this unsubstantial argument whose only purpose is to harass us. However, if the Commissioners would prefer, they can simply instruct Deschutes County Community Development to issue the permit also in the name of Shepherdsfield Church. 4. What is a church? -COLW questioned what legally constitutes a church. Deschutes County defines a church as an institution with a religious 501c3 status with the IRS. Thus, Shepherdsfield is recognized by Deschutes County as a church. That should settle the question. Furthermore, the IRS recognizes Shepherdsfield as a church in that they reviewed my application and granted approval based on my answers. Finally, Duhaime's Law Dictionary defines "Church" as "A charitable association of persons organized for the advancement of religion and for the conduct of religious worship, services or rites, and that is permanently established." (http://www.duhaime.org/LegalDictionary/C/Church.aspx ) By that definition we also qualify as a church. NOTE: None of these definitions require a building or ownership of a church site. In fact, in St. Martin Lutheran Church v. South Dakota, the Supreme Court ruled in 1981: "_ to hold church synonymous solely with a physical building that is a house of worship contradicts the phrasing of the statute. The �w�or church .. must be ,Ri,i iced� nstea Lee t LLke ��plrmAo r �zF 1�nce Y�nc ar° hy,iit��tll; that is. the church authorities who conduct the business of hiring-, discharging, and directing church employees." (Emphasis .nine) (htlps:HsLipreme justia com/cases/federal/us/451/772/case.html) Thus, according to the Supreme Court, the "church authorities" or church "hierarchy" ARE the church. Thus, Pastor John Shepherd IS the church and is authorized to act for the church, such as arranging permits and maintaining non-profit status. S. Are rented venues a violation of church ministry? -In that Shepherdsfield Church allows weddings in which Pastor Shepherd does not officiate, does that somehow violate their liberty or right to exist? First, it is common practice for churches to rent out their facilities to the community for weddings. For example, Grace Lutheran Church in Bend advertises on Central Oregon Weddings and on their website (https:Hgracefirstlutheran.org/event-space/) that the community is encouraged to rent their facilities for weddings. (Exhibit E) Second, whether I am officiating or not, my wife and I are heavily and personally involved in ministry to the couple and their families both before and during the wedding. We act as wedding coordinators. We help with the rehearsal. We often videotape the service for free. We take the opportunity to counsel encourage and represent Christ to all who attend. We are always present. Beyond officiating, this outreach ministry is an important aspect of our community outreach. We do far, far more than most churches do who also legally rent out their facilities. 6. What are "Residential Churches" -COLW would like Deschutes County to issue a new interpretation on what a "non-residential church" means. When COLW raised this argument to LUBA in 2017, LUBA declined to respond. Deschutes County would be foolish to define what LUBA did not. COLW quotes a case where LUBA considered whether a church could be allowed to create a monastery or building for numerous ministers' long term housing. It was in this context that LUBA ruled that a church's right of "use permitted outright" did not include monastic or men's shelter use. This narrow ruling has never been used to shut down house churches. LUBA did NOT rule against churches in houses, as COLW wants you to believe. In fact, to allow other extra -residential uses in houses (such as home occupations) but to forbid churches from meeting in houses would be both a dangerous national precedent and a clear violation of RLUIPA. (Gov't can't allow hair dressers but ban churches.) I'm including my attorney's thorough rebuttal of COLW's argument as Exhibit H. There is a big difference between a church that meets in a residence and a residential church, just as there is a difference between a business that meets in a residence and residential business. A business that meets in a residence is a home occupation, such as an accountant, a jeweler or a hair dresser. A residential business is a hotel or a group home, which may not be suitable in all neighborhoods. Similarly, a church that meets in a house is a house church, which is common throughout the world and totally legal if it meets site plan review. A residential church, as referred to in Oregon law, is a lodging or group home for clergy, such as a monastery or a clergy retirement home or a retreat center. This was "nonresidential church" violation that LUBA ruled against. Thus, a house church, like any church, is a use permitted outright on EFU in Oregon. ************ Regarding my appeal that DCD remove all seasonal and frequency conditions on my permit: Since the Commissioners agreed that religion is not seasonal and agreed to NOT impose seasonal restrictions on churches in EFU, and since neither State Law nor County Code imposes frequency restrictions, I request that all frequency and seasonality restrictions be removed from the permit of Shepherdsfield Church. This includes the removal of: #3- Seasonality restrictions for events, plus a duration restriction of no more than 8 hours. These limits are not required by law, are not imposed on similar institutions like Faith, Hope and Charity, or the Hulick's Cowboy Church, and are a violation of RLUIPA equal treatment protections. If Shepherdsfield wants to host an Easter sunrise service or a memorial service in the winter, there should be no prohibition. #12- May 15th to Oct 15th limitation of outdoor events, and limits of one event per week. (see #3 above) #13- Definition of "weekend". #16- Requirements that "all temporary structures and facilities" be set-up and taken down daily. In the church permit granted to Ramona and Dave Hulick in 2017, (247 -16 -000613 -AD), even though their church is on 1/10th of our acreage and we are buffered by a forest and BLM, even though they had a neighbor complaint, (we've had none), even though they meet 104 times per year, far more often than us, none of these season or frequency restrictions were imposed on them. However, to address the concerns of Transportation and other CDD department heads, we all met and agreed that Shepherdsfield would voluntarily agree to a maximum of 30 outdoor events per year. I also assured that, simply due to the nature of outdoor weddings and events, that vast majority of these would occur during the warm months between mid-May and mid- October. Nobody wants to meet outside in the cold. So please remove these "free exercise" restrictions which are not legal nor based on precedent and give us the liberty enjoyed by similar institutions and permits. Sincerely, John Shepherd William Groves From: William Groves Sent: Monday, April 30, 2018 8:13 AM To: 'John Shepherd' Subject: RE: Question on new evidence submission Hi John, The first week is whatever and the kitchen sink (any argument and evidence). The second week is rebuttal to the first week only (you can present evidence/argument, but it must be to respond or refute materials from the first week) The third week is argument only. Does that make sense? Thanks, Will Will Groves Senior Planner, CFM 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 I www.deschutes.org/cd 006 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: John Shepherd <shepherdsfield@gmail.com> Sent: Monday, April 30, 2018 8:00 AM To: William Groves <WilIiam.Groves@deschutes.org> Subject: Question on new evidence submission Good morning, Will. Quick question: I was a little confused by David Doyle's explanation of when new evidence can be submitted in our three window response period. Can new evidence be submitted during the second window (the rebuttal stage) or just during the first window? Thanks, John Apri130, 2018 Deschutes County Board of Commissioners c/o Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97708-6005 www.centraloregonlandwatch.org Re: Appeal of Administrative File Number: 247 -17 -000573 -AD AND 574 -SP Via Hand Delivery Dear Chair DeBone and Commissioners: Thank you for the opportunity to provide additional comments on the appeal of the administrative approval of No. 247 -17 -000573 -AD AND 574 -SP dated February 10, 2018. 1. Board should dismiss application for an unregulated use The use requested in this application is not regulated by Deschutes County, the state of Oregon, or the federal government. As the administrative approval explained the applicants request permission from the Deschutes County Board of Commissioners to worship in their own home. Deschutes County does not require citizens to obtain a permit to worship in their own homes. Therefore no permit is required. We urge the Board to adopt findings explaining that worship in the home is a permitted use in Deschutes County and to dismiss the application. In his first breath at the April 23 hearing Mr. Shepherd invited the Board of Commissioners to consider whether worship in the home constitutes a church and in the next breath threatened the Board of Commissioners with a federal lawsuit if the County finds that worship in the home is a church but does not meet all of his demands for accessory uses for a church. Whether worship in the home is or is not a church is a philosophical or ecclesiastical question that does not concern Deschutes County. PA The only question that is legally before the county is whether the applicants are allowed the requested use of worship in the home. Because the requested use does not require a permit, the Board should dismiss this application as not a matter regulated by Deschutes County. LandWatch's concern will be addressed if the Board dismisses this application as a use that does not require a permit. 2. State law ORS 215.441 limits accessory uses to nonresidential places of worship The question of whether accessory uses are permitted in a residential place of worship is a matter of state law. ORS 215.44 concerns "nonresidential places of worship." While the applicant wants the Board to consider the second part of this phrase, that matter leads the Board into ecclesiastical matters that are not regulated by Deschutes County code. The Board should decline to consider the second part of this phrase and instead just look at the first part, which is a clear expression of state law ORS 215.441, concerning "nonresidential places of worship." Whatever else may be said about the requested use, it is not a nonresidential use. The applicants are requesting to use their residence, where they reside. The Board's hands are tied by the state law with which the Board must comply. Because state law only allows accessory uses that are nonresidential, no accessory uses can be allowed here, where they will be residential. LandWatch's concern will be met if the Board makes findings explaining that Deschutes County cannot grant any accessory uses because state law only permits uses in association with uses that are nonresidential. 3. DCC 22.20.15, approval of additional uses must await the property's coming into compliance with existing conditions of approval Please see Attachment 1, the 2001 decision approving the farm dwelling. The decision says that not implementing the farm plan triggers a requirement to submit another application for a farm dwelling. Please see Attachment 2, a 2015 LUBA decision stating as a matter of fact that the farm management plan was not implemented. ("However, the farm management plan was not implemented.") LUBA has already determined as a matter of fact that the farm management plan was not implemented. LUBA's determination that the farm management plan was not implemented is in addition to other evidence in the record including the applicant's statement to the Oregon Tax Court in 2014 that the farm management plan was never implemented. See Shepherd v Deschutes County Assessor, No. TC -MD 140333N (Or Tax 2014) (testimony from the applicant to the Oregon Tax Court indicating he had not irrigated, maintained fences on, raised livestock on, nor farmed the property as of late 2014). Failure to implement the plan triggered a requirement for the applicants to submit another application for a farm dwelling (i.e. for a person principally engaged in farm use; $32,500 annual income). The applicants have not submitted an application for a farm dwelling. It is this failure to submit an application for a farm dwelling that means the applicants are out of compliance with the conditions of approval. LandWatch's concern will be addressed if the Board declines to approve the requested uses because the property is out of compliance with the existing conditions of approval. DCC 22.20.15. 4. Board should enforce zoning law regulating commercial event venues The applicants have operated a commercial event venue through four legal proceedings, each of which concluded in decisions that the use is unlawful: two from the Land Use Board of Appeals, and two from the Oregon Court of Appeals. See Figures 1-9, illustrating the private commercial nature of the venture. See Figure 5, an email from the applicants in their role as a commercial event venue discussing a commercial event on the property held on October 13, 2017, two and a half months after the Oregon Court of Appeals held the use was unlawful for the second time. See also in the attached figures evidence the applicants' unlawful uses include an unpermitted campground. 2 LandWatch urges the County to enforce against the applicants and prohibit unlawful uses on the property, as it has done in the past. The County previously enforced against a commercial event business and pursued a landowner until she was found guilty on four counts of operating an event venue business in violation of county zoning. The County should proceed in the same way with this business. See Attachment 3, an article from the Bend Bulletin. LandWatch's concern will be addressed if the County enforces against the applicants' unlawful uses on the property. Conclusion Thank you for your attention to these views. Best regards, Carol Macbeth Staff Attorney Central Oregon LandWatch CDD COVER SHEET FOR SLR 07/05/2001 15:07:17 lw 1 PAGES FILE ID 1411000000103PL20010705150717 TAXMAP 1411000000103 SERIAL 160620 DIVISION PL SITUS 71120 HOLMES RD HOUSE# 71120 STREET HOLMES CONTENT F&D WITH EXHIBIT "A" - MA019(C00065) LOCATED IN ADDRESS FILE 0 41 DESCHUTES COUNTY PLANNING DIVISION 117 NW Lafayette Avenue, Bend, OR 97701 (541)388-6575 FAX 385-1764 CERTIFICATE OF NOTICE BY MAIL FILE NUMBER: MA -01-9 (CU -00-65) MENTS MAILED: 1) Notice of Decision with Exhibit "A" to Decision 2) Decision with Exhibit "A" LOOKUP AREA: 750 Feet I certify that on day o 001, the attached notice/report, dated 2001, was mailed y first class mail, postage prepaid, to the person(s) and ad ress(es) set forth on the attached list. DATED this day of 001. COMMUNITY DEVELOPMENT DEPARTMENT By: (,�� Surrounding Property Owners within 750 feet of subject property Affected Agencies: Total = 9 SEE LIST Applicant/Owner: Applicant's Agent: Darlene Woods Dale VanValkenberg PO Box 5608 160 NW 17th Street Bend, OR 97708 Bend, OR 97701 Lynda Klempel Route 1 245A Terrebonne, OR 97760 Quality Services Performed with Pride 2 Community Development Department ,-; # Planning Division - Building Safety Division - Environmental Health Division 117 NW Lafayette Avenue • Bend, Oregon • 97701 1925 (541) 388-6575 • FAX (541) 385-1764 http://www.co.deschutes.orus/cdd/ ti3 _ .j Y N LU NOTICE OF DECISION 2 6Z 8Z �2 The Deschutes County Planning Division has approved the land use application(s) described below: FILE NUMBER: MA -01-9 (CU -00-65) LOCATION: The property has an assigned address of 71120 Holmes Road, Sisters, Oregon. The property is also identified as tax lot 103 on Assessor's Map No. 14-11 -0000. APPLICANT: Darlene Woods AGENT: Dale VanValkenberg PROPOSAL: The applicant has proposed to modify the submitted application for a conditional use permit to allow the establishment of a farm -related dwelling on an approximate 216 acre non -high value parcel. The applicant proposes to modify CU -00-65 by proposing a new homesite location and modifying the farm management plan. The modified application indicates that the property currently supports 24 head of cattle, has perimeter fencing and watering troughs The subject property is zoned Exclusive Farm Use -Lower Bridge (EFU-LB) and is within the Wildlife Area (WA) Combining Zone. STAFF CONTACT: Chris Schmoyer, Associate Planner (541) 317-3151 APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, County Zoning. Chapter 18.16, Exclusive Farm Use Zones. Section 18.16.030, Conditional uses permitted. Section 18.15.050, Standards for dwellings in the EFU zones. Section 18.16.067, Farm management plans. Section 18.16.070, Yards. Section 18.16.080, Stream setbacks. Chapter 18.88, Wildlife Area (WA) Combining Zone. Section 18.88.060, Siting Standards. Section 18.88.070, Fencing Standards. Title 22, Deschutes County Code, County Uniform Land Use Procedures Ordinance Chapter 22.20 Review of Land Use Action Application N.O.D. for File No. MA -01-9 (CU -00-65) Page 1 of 2 Quality Services Performed with Pride Section 22.20.055, Modification of Application Oregon Administrative Rule (OAR) OAR 660-33-135, Dwellings in Conjunction with Farm Use DECISION: Staff finds that the application satisfies all applicable criteria, and approval is being Granted subject to the following conditions: 1. 2. Lighting for all structures are subject to Section 15.10 of the DCC (Outdoor Lighting Control Ordinance). 3. in addition to compliance with the applicant's wildlife management plan (included as Exhibit "A"), the natural vegetation growing on the property shall be maintained as stated in number 5 of the applicant's wildlife management plan. This should be expanded to only allow the thinning of young juniper, less than 10 years old. Bitterbrush and sagebrush would not be removed and the pruning of juniper would not be allowed This land use permit shall be void two years from the date this decision becomes final unless the permit is initiated or extended pursuant to Chapter 22.36 of the DCC. 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. A copy 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, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER. N.O.D. for File No. MA -01-9 (CU -00-65) Page 2 of 2 I FILE NUMBERS: APPLICANT/ OWNER: APPLICANT'S AGENT: 0 Community Development Department Planning Division - Building Safety Division • Environmental Health Division 117 NW Lafayette Avenue - Bend, Oregon - 97701-1925 (541) 388-6575 - FAX (541) 385-1764 FINDINGS AND DECISION MA -01-9 (CU -00-65) Darlene Woods, dba Rosebud Construction PO Box 5608 Bend, OR 97708 Dale VanValkenburg 160 NW 17" St Bend, OR 97701 http://www.co.deschutes.or.us/cdd/ ^�3g567g970Tr Q Mpt4So �' SC VAS D CpU � v -'ece ZZ 0 PROPOSAL: The applicant has proposed to modify the submitted application for a conditional use permit to allow the establishment of a farm -related dwelling on an approximate 216 acre non -high value parcel. The applicant proposes to modify CU -00-65 by proposing a new homesite location and modifying the farm management plan. The modified application indicates that the property currently supports 24 head of cattle, has perimeter fencing and watering troughs The subject property is zoned Exclusive Farm Use -Lower Bridge (EFU-LB) and is within the Wildlife Area (WA) Combining Zone. STAFF REVIEWER: Chris Schmoyer, Associate Planner I. APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, County Zoning. Chapter 18.16, Exclusive Farm Use Zones. Section 18.16.030, Conditional uses permitted. Section 18.15.050, Standards for dwellings in the EFU zones. Section 18.16.067, Farm management plans. Section 18.16.070, Yards. Section 18.16.080, Stream setbacks. Chapter 18.88, Wildlife Area (WA) Combining Zone. Section 18.88.060, Siting Standards. Section 18.88.070, Fencing Standards. Title 22, Deschutes County Code, County Uniform Land Use Procedures Ordinance File No. CU -00-65, WoodsNan Valkenberg Page 1 Quality Services Performed with Pride Chapter 22.20 Review of Land Use Action Application Section 22.20.055, Modification of Application Oregon Administrative Rule (OAR) OAR 660-33-135, Dwellings in Conjunction with Farm Use 11. BASIC FINDINGS: A. LOCATION: The subject property is at 71120 Holmes Road, Sisters. It is identified on County Assessor's Map Number 14-11-0000 (index) as tax lot 103. B. ZONING: The property is zoned Exclusive Farm Use — Lower Bridge Subzone (EFU- LB). It is designated Agriculture on the Deschutes County Comprehensive Plan and is also within the Wildlife Area (WA) Combining Zone. C. LOT OF RECORD: The subject property was verified to be a legal lot of record in County File No. LR -95-44. D. SITE DESCRIPTION: The subject property is approximately 216 acres in size and does not currently support any buildings or structures. The property fronts on the south side of Holmes Road. The property contains perimeter fencing and is currently devoted to the grazing of cattle. The parcel is adjacent to and located along the south side of Holmes Road and has an existing access road extending from Holmes Road to the general vicinity of the proposed homesite location. The property contains steep north - facing slopes and supports juniper trees and natural grasses and an unnamed stream that traverses the property along the northern boundary. All but approximately 80 acres of the subject property is situated within the Squaw Creek Irrigation District. The proposed site for the home is on land mapped as soil unit 63C. E. SURROUNDING LAND USE: The subject property is surrounded by parcels that are zoned Exclusive Farm Use. To the north of the subject property is an approximate 540 acre parcel that is devoted to cattle grazing and a guest ranch. The subject parcel abuts a large tract of federal -owned land to the south. Also adjacent and to the south is an approximate 80 acre parcel that contains a dwelling. Adjacent and to the east is an approximate 77 acre parcel that supports a dwelling. The aerial map that is the base for the soils map shows soil unit 63C has not historically been irrigated in this area. It is typically higher in elevation than the irrigated land. F. PROPOSAL: The applicant has proposed to modify the submitted application for a conditional use permit to allow the establishment of a farm -related dwelling on an approximate 216 acre non -high value parcel. The applicant proposes to modify CU -00- 65 by proposing a new homesite location and modifying the farm management plan. The modified application indicates that the property currently supports 24 head of cattle, has perimeter fencing and watering troughs. The application indicates that the applicant is in the process of purchasing Squaw Creek Irrigation water. Based on the applicant's revised site plan, the proposed farm dwelling would be situated approximately 1,050 feet from the east property line, 112 feet from the south property line, 2,100 feet from the north property line and 1,591 feet from the west property line. The application includes a burden of proof statement that has been incorporated into the record herein by reference. According to the modified farm management plan and business plan, and verified by staff during a visit to the property on May 31, 2001, the subject property File No. CU -00-65, WoodsNan Valkenberg Page 2 currently supports: 1) 24 head of cattle 2) Fencing of the boundary of the subject property 3) Watering troughs that are filled with water that is hauled onto the property until such time a well is installed and electricity provided to the property. 4) Bails of hay for use as supplemental livestock feed that is hauled onto the property by the applicant. In addition, the applicant indicates that they propose to incorporate hogs into the livestock operation following occupancy of the proposed farm dwelling. The applicant has submitted financial documents, soils and irrigation maps, a site plan and burden of proof statement in support of this application, which are incorporated herein by reference. G. SOILS:. According to Natural Resources Conservation Service (NRCS) maps of the area there are four (4) soil units mapped on the subject parcel: 1. 63C, Holmzie-Searles complex, 0 to 15% slopes. This soil complex is composed of 50% Holmzie soil and similar inclusions, 35% Searles soil and similar inclusions and 15% contrasting inclusions. The NRCS rates the production capability of both the Holmzie and Searles soils as Class 6E. This soil complex comprises approximately 50% of the property and 100% of the homesite area would be situated on this soil type. This soil complex is not considered high value when irrigated. 2. 101E Redcliff-Lickskillet-Rock Outcrop complex, 20 to 50 percent south slopes. This soil complex is composed of 60% Redcliff soil and similar inclusions, 20% Lickskillet and similar inclusions, 15% Rock outcrop and 5 percent contrasting inclusions. The NRCS rates the production capability of this soil type as Class 7 and 8. This soil complex comprises approximately 10% of the property. This soil complex is not considered high value when irrigated. 3. 106D Redslide-Lickskillet complex, 5 to 30 percent north slopes. This soil complex is composed of 50% Redslide soil and similar inclusions, 35% Lickskillet and similar inclusions and 15% contrasting inclusions. The NRCS rates the production capability of this soil type as Class 6 and 7. This soil complex comprises approximately 30% of the property. This soil complex is not considered high value when irrigated. 4. 1388, Stukel Sandy Loam, 3 to 8 percent slopes. This soil complex is composed of 85% Stukel soil and similar inclusions and contrasting inclusions. The NRCS rates the production capability of this soil type as Class 6 nonirrgated and Class 4 where irrigated. This soil complex comprises approximately 10% of the property. This soil complex is not considered high value when irrigated. H. PUBLIC AGENCY TRANSMITTALS: The Planning Division mailed notice of this application to several public agencies and received the following comments: Deschutes County Assessor: Currently under deferral. 2. Deschutes County Environmental Health Division: A septic site evaluation is required. File No. CU -00-65, Woods/Van Valkenberg Page 3 3. County Address Coordinator: The address of record for this property is: 71120 Holmes Road, Sisters. 4. Oregon Department of Fish and Wildlife: Steven George, Deschutes District Wildlife Biologist, provided a letter, dated April 5, 2001, which states the following: We have had the opportunity to meet with the applicant and review her plans. The applicant's plan, as outlined in her March 21 letter with attachments, will provide for equal or greater protection for wildlife with the following recommendation. 1 would like the following recommendation considered in addition to the referenced plan by the applicant. The natural vegetation growing on her property should be maintained as stated in number 5 of her plan. These should be expanded to only allow the thinning of young juniper less than 10 years old. Bitterbrush and sagebrush would not be removed. Pruning of juniper would not be allowed. 5. Cloverdale Fire Department: Property is (structural) unprotected. We have offered to provide service, however, they have not applied. Do not allow building when an applicant is refusing structural fire protection that would protect us all. STAFF COMMENT: Staff is unable to require the applicant to enter into a contract with the Fire Department through this land use application as there are no applicable criteria pertaining to this request that would justify such a condition. Staff feels that the applicant should contact the Cloverdale Fire Department regarding fire protection services to the proposed farm dwelling as well to obtain information regarding driveway construction standards and any other applicable standards. 6. Watermaster-District 11: Our records show Squaw Creek irrigation district water rights on this parcel. The applicant needs to contact the district office to clear up any right-of-way or water right issues before final approval. 7. The following agencies submitted no written response or had no comments: Deschutes County Building Division and Squaw Creek Irrigation Districts. PUBLIC NOTICE: The Planning Division mailed notice of this application to property owners of record on June 1, 2001 within 750 feet of the subject property. At the time of completion of this findings and decision, no written comments were received. The applicant complied with the posted notice requirements of Section 22.23.030 (B) of Title 22. The applicant submitted a Land Use Action Sign Affidavit dated June 1, 2001, that indicates that the applicant posted notice of the land use action on June 1, 2001. K. REVIEW PERIOD/PROCEDURAL HISTORY: The Planning Division mailed a letter to the applicant's agent on July 19, 2000 notifying that the application was incomplete because the plot plan and farm management plan submitted with the application were inadequate. On July 26, 2000, the applicant's agent submitted a letter to the Planning Division requesting to extend the 150 -day review clock for a period of 90 days (from July 20, 2000) to allow for submittal of the information requested by staff. The application was accepted and deemed complete on October 20, 2000. As previously mentioned, a notice of public hearing was mailed on November 22, 2000 to surrounding property File No. CU -00-65, WoodsNan Valkenberg Page 4 owners within 750 feet of the subject property and to the "Bulletin" newspaper for publication. The notice of the public hearing was published in the Bulletin Newspaper on Sunday, December 17, 2000 as evidenced by the "Affidavit of Publication" in the record. On December 6, 2000, the applicant's agent submitted a letter to the Planning Division requesting to continue the public hearing scheduled for January 9, 2001 until April 3, 2001 to allow time for the applicant to complete physical improvements to the property in the spring. The letter also stated that the applicant waives the 150 -day review timeline for this application in its entirety. The scheduled public hearing was held on January 9, 2001 at 7 pm at which time staff announced the applicant's request for continuance of the hearing until April 3, 2001 and public testimony was provided by Lynda Klempel, an adjacent property owner. Lynda Klempel is an owner of property identified as tax lot 3000 on County Assessor's Map 14- 11-0000 (index) and has an assigned property address of 19561 NW Lower Bridge Way, Sisters, which is adjacent and to the south of the subject property. Ms. Klempel provided the Hearings Officer with six (6) photographs of the subject property that were entered into the record as Exhibit Nos. 1 through 6. Ms. Klempel also testified that she believes that property to be unsuitable for farm use. Notification of cancellation of the April 3, 2001 was mailed to surrounding property owners, parties and agencies on March 22, 2001. The Hearings Officer issued an Order, dated March 26, 2001, that was mailed March 27, 2001 indicating that the public hearing scheduled for April 3, 2001 would be continued until June 2001, unless a modified application was submitted as proposed by the applicant or the application was withdrawn. On May 22, 2001, the applicant submitted the application for modification. On May 25, 2001, the Planning Division mailed notice to parties regarding the cancellation of the continued public hearing scheduled for June 5, 2001. Ill. CONCLUSIONARY FINDINGS: Title 18 of the Deschutes County Code, County Zoning. A. Chapter 18.16, Exclusive Farm Use Zones. 1. The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or nonhigh value farmland subject to applicable provisions of the Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable sections of DCC Title 18. A. Dwellings customarily provided in conjunction with farm use (farm -related dwellings). FINDING: The applicant has applied for a conditional use permit for a farm related dwelling on non -high value farmland in the EFU-LB zone. This proposal is being reviewed against the approval criteria in DCC Section 18.16.050(A) which are addressed in the body of this report. 2. Section 18.15.050, Standards for dwellings in the EFU zones. File No. CU -00-65, WoodsNan Valkenberg Page 6 Dwellings listed in DCC 18.16.030 may be allowed under the conditions set forth below for each kind of dwelling. A. Farm -related dwellings on nonhigh value farmland. A dwelling customarily provided in conjunction with farm use, as listed in DCC 1&16.030(A), may be approved if it satisfies any of the alternative tests set forth below. 1. Acreage test. a. On land not identified as high-value farmland, a dwelling, including a manufactured home in accordance with DCC 18.116.070, is considered to be customarily provided in conjunction with farm use if. i. The parcel on which the dwelling will be located is at least.- a. east.a. One hundred sixty acres and not in the Horse Ridge East subzone; FINDING: The subject property is approximately 216 acres in size and is located in the Lower Bridge subzone. Staff finds this criterion to be satisfied. ii. The subject tract is currently employed for farm use, as evidenced by a farm management plan; FINDING: Based on the applicant's burden of proof statement, County Assessment information and observations made by staff during a visit to the site on May 31, 2001, the subject property is currently employed for farm use. According to the farm management plan in the applicant's burden of proof statement, the applicant is currently grazing 24 head of cattle on the property. Staff observed the cattle on the property during the visit to site as well as watering troughs, several bails of hay and new perimeter fencing on the property. Staff finds that OAR 660-33-0135(1)(b) states: "The subject tract is currently employed for farm use, as defined in ORS 215.203." ORS 215.203(2)(a) provides the following definition for farm use: As used in this section, "farm use" means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. "Farm use" includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. "Farm use" also includes the current employment of land for the primary purpose of obtaining a profit in money by stabling or training equines including but not limited to providing riding lessons, training clinics and schooling shows. "Farm use" also includes the propagation, cultivation, maintenance and harvesting of aquatic species and bird and animal species to the extent allowed by the rules adopted by the State Fish and Wildlife Commission. "Farm use" includes the on-site construction and maintenance of equipment and facilities used for the activities described in this File No. CU -00-65, Woods/Van Valkenberg Page 6 subsection. "Farm use" does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined in subsection (3) of this section or land described in ORS 321.267 (1)(e) or 321.415 (5). ORS 215.203(2)(b) provides the following definition for current employment for farm use: (b) "Current employment" of land for farm use includes: (A) Farmland, the operation or use of which is subject to any farm -related government program; (B) Land lying fallow for one year as a normal and regular requirement of good agricultural husbandry; (C) Land planted in orchards or other perennials, other than land specified in subparagraph (D) of this paragraph, prior to maturity, (D) Land not in an exclusive farm use zone which has not been eligible for assessment at special farm use value in the year prior to planting the current crop and has been planted in orchards, cultured Christmas trees or vineyards for at least three years, (E) Wasteland, in an exclusive farm use zone, dry or covered with water, neither economically tillable nor grazeable, lying in or adjacent to and in common ownership with a farm use land and which is not currently being used for any economic farm use, (F) Except for land under a single family dwelling, land under buildings supporting accepted farm practices, including the processing facilities allowed by ORS 215.213 (1)(y) and 215.283 (1)(v); (G) Water impoundments lying in or adjacent to and in common ownership with farm use land; (H) Any land constituting a woodlot, not to exceed 20 acres, contiguous to and owned by the owner of land specially valued for farm use even if the land constituting the woodlot is not utilized in conjunction with farm use, (l) Land lying idle for no more than one year where the absence of farming activity is due to the illness of the farmer or member of the farmer's immediate family. For purposes of this paragraph, illness includes injury or infirmity whether or not such illness results in death; (J) Any land described under ORS 321.267 (1)(e) or 321.415 (5); and (K) Land used for the primary purpose of obtaining a profit in money by breeding, raising, kenneling or training of greyhounds for racing. (c) As used in this subsection, "accepted farming practice" means a mode of operation that is common to farms of a similar nature, necessary for the operation of such farms to obtain a profit in money, and customarily utilized in conjunction with farm use. Staff finds that the applicant's existing livestock operation qualifies as a farm use as provided under ORS 215.203 and that livestock grazing is a use that is considered an accepted farming practice that is common to farms in the area. Based on the above, staff finds that the subject property is currently employed in a farm use and therefore satisfies this criterion. 3. Section 18.16.067 Farm management plans. A. Contents. A farm management plan shall consist of the following components: File No. CU -00-65, Woods/Van Valkenberg Page 7 1, A written description of existing and/or proposed farm uses, including type of crops or livestock, size and location of areas for each use, and land or soil preparations required. FINDING: The applicant has proposed to modify the submitted application for a conditional use permit (CU -00-65) to allow the establishment of a farm -related dwelling on an approximate 216 acre, unirrigated, non -high value parcel. The applicant proposes to modify CU -00-65 by proposing a new homesite location and modifying the farm management plan. The modified application indicates that the property currently supports 24 head of cattle, has perimeter fencing and watering troughs. The applicant has submitted financial documents, photographs, soils and irrigation maps, a site plan and burden of proof statement in support of this application, which are incorporated herein by reference. According to the modified farm management plan and business plan, and verified by staff during a visit to the property on May 31, 2001, the subject property currently supports 24 head of cattle, has perimeter fencing along the boundary of the subject property, watering troughs for livestock that are filled with water that according to the applicant will be hauled onto the property until such time a well is installed and electricity provided to the property. The applicant also indicates that they intend to obtain water rights from Squaw Creek Irrigation District. In addition, the applicant indicates that they propose to incorporate approximately 30 hogs into the livestock operation following occupancy of the proposed farm dwelling. The applicant's plot plan depicts the location of areas that are used for livestock grazing. Based on the above findings and the applicant's burden of proof statement, staff finds this criterion to be satisified. 2. An assessment of the soils, climate and irrigation on the parcel demonstrating that the parcel is suitable for the current or proposed use outlined in DCC 1& 16.O67(A)(1). FINDING: Basic Finding G describes the soils on the property According to NRCS data, soils on the property contain the following native plants: western juniper, mountain big sagebrush, big bluegrass, antelope bitterbrush, Idaho fescue, needleandthread, western needlegrass, thurber needlegrass, thickspike wheatgrass, prairie junegrass, antelopes bitterbrush, shrubby buckwheat and Indian rice grass. NRCS identifies the major use of these soil types on the property as livestock grazing. The climate of this area is characterized by a short growing season and a harsh, dry climate that is cold in winter and hot in summer. Cattle ranching is a big part of the history of this area with Long Hollow Ranch located adjacent and to the north of the subject property. Although the property does not have water rights for irrigation, the property is still considered to be suitable for the proposed use of livestock grazing due to the size of the property and the number of cattle (24) that will only be grazed on the property seasonally (between the months of March through August). Additionally, the application indicates that hay will be hauled onto the property as supplemental feed for the livestock. Based on the above findings and the applicant's burden of proof statement, staff finds this criterion to be satisfied. 3. A business plan, including a demonstration that markets exist for the product: estimates of gross sales or actual ffgures concerning necessary expenditures; and a list of capital expenditures incurred or projected to be incurred in establishing the farm use on the parcel. File No. CU -00-65, WoodsNan Valkenberg Page 8 0 FINDING: The applicant's burden of proof statement indicates that she currently partakes in the purchase and sale of hogs and cattle in Central Oregon through the Central Oregon Livestock Auction. The application also states that Ms. Woods operates a cattle operation on property she owns on Innes Market Road and that hay will be provided to the subject property from a hay hauler located on property next to her Innes Market Road property. The applicant includes a business plan and information to document markets exist for her products, as well as a list of estimated gross sales and projected and actual capital expenditures. Based on the above findings, the applicant's business plan, farm management plan, as well as documentation in the record regarding the purchase and ownership of livestock, staff finds this criterion to be satisfied. 4. A written description of the farm uses in the area, including acreage, size and type of crop or livestock raised showing that the proposed plan is representative of similar farm uses, if any, in the area and will not conflict with the existing agricultural types. FINDING: The applicant's burden of proof statement indicates that the property is within the Exclusive Farm Use -Lower Bridge subzone (EFU-LB), but is physically differentiated from the core area of the EFU-LB subzone by the canyon walls and rimrock. Surrounding farms include the Long Hollow Ranch, an approximate 540 acre cattle ranch and guest ranch with over 235 acres of irrigated pasture. The adjacent property to the west was approved in 1995 for a farm dwelling for a similar grazing operation (John Bryan). Other nearby farms are beyond Long Hollow Ranch to the north and east and are characterized by the Deschutes County Agricultural Profile (Comprehensive Plan Resource Element) as "irrigated field crops, hay and pasture." Based on the above, staff finds that the subject property is representative of dry land cattle ranches in the area that will not conflict with the existing agricultural types in the area. 5. For farm uses not currently practiced in the area, an analysis showing that the plan is representative of the type of agriculture proposed. FINDING: Staff finds this criterion is not applicable because the subject property is currently employed for farm use. iii. The dwelling will be occupied by a person or persons who will be principally engaged in the farm use of the land, such as planting, harvesting, marketing or caring for livestock, at a commercial scale. FINDING: The applicant's burden of proof statement indicates that the applicant and her family are the intended occupants of the residence. The applicant contends that an on- site residence is necessary in order to efficiently manage the livestock operation on the property. The applicant's farm management plan describes the day-to-day activities of the operation which includes: check the general health of the animals, delivery time and early feeding of the calves, periodic inspection of the watering troughs to ensure that contain adequate water, clean and inspect animal shelters, inspection and repair of fencing and routine counting of livestock. According to the farm management plan other duties include: halter training, vaccinating, worming, administer general shots, provide supplemental feed as needed and close supervision of young calves and piglets especially during calving period. Based on the above findings and the applicant's farm management plan, staff finds this criterion to be satisfied. File No. CU -00-65, WoodsNan Valkenberg Page 9 iv. There is no other dwelling on the subject tract; FINDING: The Deschutes County Assessor records do not show a house or any improvements are assessed on the subject property. Based on this fact and a visit to the site, staff finds there is no other dwelling on the subject tract. The proposal meets this criterion. V. The dwelling will be located on the least productive part of the parcel. FINDING: The applicant indicates that the homesite location proposed by the modified application is a less productive area of the property than the previous proposed homesite location. The farm dwelling is proposed for a location of the property that contains 63C, Holmzie-Searles complex. Unit 63C is composed of 0 to 15% slopes and is a soil complex that is composed of 50% Holmzie soil and similar inclusions, 35% Searles soil and similar inclusions and 15% contrasting inclusions. The NRCS rates the production capability of both the Holmzie and Searles soils as Class 6E. This soil complex comprises approximately 50% of the property and 100% of the homesite area would be situated on this soil type. This soil complex is not considered high value when irrigated. The property also contains the following soil types: 1) Soil Unit 101 E, Redcliff-Lickskillet-Rock Outcrop complex, 20 to 50 percent south slopes. This soil complex is composed of 60% Redcliff soil and similar inclusions, 20 percent Lickskillet and similar inclusions, 15% Rock outcrop and 5 percent contrasting inclusions. The NRCS rates the production capability of this soil type as Class 7 and 8. This soil complex comprises approximately 10% of the property. This soil complex is not considered high value when irrigated. 2) Soil Unit 106D, Reds lide-Lickskillet complex, 5 to 30 percent north slopes. This soil complex is composed of 50% Redslide soil and similar inclusions, 35 percent Lickskillet and similar inclusions and 15% contrasting inclusions. The NRCS rates the production capability of this soil type as Class 6 and 7. This soil complex comprises approximately 30% of the property. This soil complex is not considered high value when irrigated. 3) 138B, Stukel Sandy Loam, 3 to 8 percent slopes. This soil complex is composed of 85% Stukel soil and similar inclusions and contrasting inclusions. The NRCS rates the production capability of this soil type as Class 6 nonirrgated and Class 4 where irrigated. This soil complex comprises approximately 10% of the property. This soil complex is not considered high value when irrigated. Regarding Soil Unit 101 E above, this soil type is associated with the canyon area on the property and therefore is not practicable for the contruction of the proposed dwelling. Soil Unit 138B is situated along the northeastern portion of the property and is considered a better soil type than Unit 63C with rating of 6 and 4 and maximum slopes of 8 percent. Soil Unit 106D is a complex soil that is composed of agricultural classification ratings of 6 and 7, with slopes ranging between 5 and 30 percent. Staff finds that the 106D soils on the property predominantly contain steep north -facing slopes that are not practicable for the construction of a dwelling. Based on the applicant's burden of proof statement, analysis of County aerial photograph, NRCS soils maps, a File No. CU -00-65, WoodsNan Valkenberg Page 10 s �r USGS topographical map, staffs visit to the site, coupled with the above findings, staff finds the proposal meets this criterion. 4. Section 18.16.070, Yards. FINDING: Based on the applicant's revised site plan, the proposed farm dwelling would be situated approximately 1,050 feet from the east property line, 112 feet from the south property line, 2,100 feet from the north property line and 1,591 feet from the west property line. The proposed homesite meets or exceeds the required setback required in the EFU Zone, including the solar setback requirements under DCC 18.116.170-180. B. Chapter 18.88, Wildlife Area (WA) Combining Zone. Section 18.88.040. Uses permitted conditionally. FINDING: An application for a conditional use permit for a farm dwelling has been submitted and the applicable criteria are addressed above. A dwelling is not a use that is prohibited under subsection B of this section. 2. Section 18.88.060, Siting Standards. A. Setbacks shall be those described in the underlying zone with which the WA zone is combined. FINDING: The subject property is within the EFU-LB zone. The setbacks in the EFU zone are addressed in a foregoing finding. B. The footprint, including decks and porches, for new dwellings shat/ be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that: 1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection though a different development pattern; FINDING: The applicant previously proposed to situate the homesite within 300 feet of an existing road identified as a "jeep" road. As part of the modified application, the applicant proposes to situate the homesite beyond 300 feet from a public road, private road or recorded easements for vehicular access existing as of August 5, 1992. The applicant's burden of proof statement provides the following in response to this criterion: Applicant proposes to locate the dwelling site and human activity areas, outside the 300 foot area, fact is the jeep road area is in the center of the corridor where the wildlife travel and browse. The new dwelling site is proposed to be at the East and South edge of the plateau rimrock area. This location will provide the least impact on the wildlife habitat considering browse, forage, cover, access to water and migration corridors. The subject property has a unique topography in that there is a plateau atop a rimrock cliff along the East and South side. This is the least productive area for the natural bunch grass that covers the property. The remainder of the property will be used for cattle grazing and a hog operation/pinned area. The wildlife will have full access to the File No. CU -00-65, WoodsNan Valkenberg Page 11 property in the same manner as they do now. As this location will not change their corridors or natural habits they have now and the past many years. Due to the fact that the home and human activities will be all on the rimrock area. And not located in the middle of their corridor. The proposed driveway from the jeep road will also provide a fire break road and this will benefit the wildlife as well as home owner and BLM properties. Applicant feels this dwelling location will provide the least possible impact on wildlife habitat, considering browse, forage cover, access to water and migration corridors. Applicant is in the process of purchasing Squaw Creek Irrigation water. On 3-19-01, conference with Steven George From ODFW, developing a management plan for Wildlife on my property. My desire to put the home and farm operation area away from the middle of the property to enable me to stay out of the corridor area used by the wildlife. We have agreed to a plan that works with cattle management and wildlife management. This property is large enough to handle on residence a small cattle operation and hog farm, but still not hinder the natural habitats of any wildlife that is already established there or will come there. The plan outline to be as stated below. 1. Browsing area would not be disturbed by any building along the middle of the property, also along the road in and out. This keeps the corridor open. 2. Human activities and barn area and pinned areas will be located totally on the S. E. corner of the plateau near the rimrock, follow -all regulations for set -backs. 3. Applicant would plant a buffer zone of mixed trees to provide a buffer zone for the wildlife and the human activities. This would include, but not limited to Aspens, Birch, Ponderosa pines, Maples, and Dogwoods. Middle size shrubs would be included in the landscape buffer plan. Applicant would stay with a lot of the natural shrubs that Steven mentioned. The buffer would be on the south, west and north sides of the human activity area and farm operations area. 4. Management of this acreage would follow along the lines to keep it in its natural state. Cutting the many small juniper trees, to promote the natural growth of the sagebrush, bitter brush and bunch grasses. 5. Applicant is in the process of purchasing irrigation water from Squaw Creek Irrigation District, using this water to promote natural grasses to grow. Applicant is planting a plot of pine trees around 300 feet to make a larger buffer from the center of the property. 6. Steven George would like it, if the cattle could be moved to another area during the months of September through February each year. This would allow some growth for winter feeding needs for the wildlife. He asked how large a heard I would have, I state about 25 head at any one time. He liked the idea of a smaller herd. l agreed to taking the cattle to another grazing area in the in the fall and winter months. I want the grazing areas to not be over grazed either as it benefits my cattle operations to have that natural vegetation coming back each year. A farm plan is a better plan if it benefits all resources, private and natural. 7. Fencing is about to start and will be built according to regulations for wildlife friendly according to Section 18.88.070, Fencing standards Distance between the ground and bottom strand or board is 15 inches. Height will not exceed 48 inches. 8. This property will have one family home on it and only one road to the home. There will be very little road usage on the property due to the type of farming operation present there. This works well due to the type of farming operation present there. This works well on this rocky type of land and yet it can still produce a profit and benefit the local community and merchants. By clearing out File No. CU -00-65, WoodsNan Valkenberg Page 12 the small juniper trees this operation will also help the wildlife in the area. We all will benefit from this site location. The record includes a letter from Steve George, District Wildlife Biologist with the Oregon Department of Fish and Wildlife, dated April 5, 2001, which states "The applicants plans, as outlined in her March 21 letter with attachments, will provide for equal or greater protection for wildlife with the following recommendation. l would like the following recommendation considered in addition to the referenced plan by the applicant. The natural vegetation growing on her property should be maintained as stated in number 5 of her plan. This should be expanded to only allow the thinning of young juniper, less than 10 years old. Bitterbrush and sagebrush would not be removed. Pruning of juniper would not be allowed." Indluded as part of the applicants plans "in her March 21st letter", as referenced in the letter from Steven George, is the applicant's plot plan submitted with this modified application. According to the applicant's plot plan, the proposed farm dwelling would be situated approximately 1,050 feet from the east property line, 112 feet from the south property line, 2,100 feet from the north property line and 1,591 feet from the west property line. This proposed homesite is beyond 300 feet from a public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992, however, based on ODFW's review and recommendation of the proposed homesite location, staff finds that the proposal can afford habitat values (i.e., browse, forage, cover, access to water) and migration corridors equal or greater protection though the proposed development pattern through compliance with the Wildlife Management Plan and the additional recommendation by ODFW referenced in his April 5, 2001 letter. Staff finds that in order to be afforded "equal or greater protection," compliance with the Wildlife Habitat Plan (Included as Exhibit "A" of this decision), and the recommendations of the wildlife biologist with ODFW is necessary, thus, they will be made conditions of approval. Based on the above findings, and through compliance with conditions of approval, staff finds that this criterion can be satisfied. 2. Section 18.88.070, Fencing Standards. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 95 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Exemptions: 1. Fences encompassing less than 90,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. FINDING: The applicant has installed a new fence and indicates in her burden of proof statement that it was constructed in accordance the above standards. File No. CU -00-65, Woods/Van Valkenberg Page 13 IV. CONCLUSION: Based on the application materials and plot plan submitted by the applicant and the above analysis, staff concludes this application for a farm related dwelling on non -high value farmland in the EFU-LB zone conforms to the standards for approval if conditions identified above are applied. Other permits may be required. The applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Division, the Deschutes County Environmental Health Division and the Deschutes County Road Department, as well as obtaining any required state and federal permits. NOTE: The applicant is advised to c regarding fire protection services to 1 obtain information regarding driveway applicable standards. V. DECISION: >ntact the Cloverdale Fire Department ie proposed farm dwelling as well to construction standards and any other APPROVAL, subject to the following conditions of approval. VI. CONDITIONS OF APPROVAL: 1. Approval is based upon the farm management plan and the plot plan. Any substantial alteration of the farm management plan or the plot plan shall require submittal of a new land use permit. 2. Lighting for all structures are subject to Section 15.10 of the DCC (Outdoor Lighting Control Ordinance). 3. In addition to compliance with the applicant's wildlife management plan (included as Exhibit "A") the natural vegetation growing on the property shall be maintained as stated in number 5 of the applicant's wildlife management plan. This should be expanded to only allow the thinning of young juniper, less than 10 years old. Bitterbrush and sagebrush would not be removed and the pruning of juniper would not be allowed VII. DURATION OF APPROVAL: The applicant shall apply for a building or placement permit for the farm -related dwelling from the County Building Division within two (2) years from the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this conditional use permit shall be void. File No. CU -00-65, Woods/Van Valkenberg Page 14 This decision becomes final twelve (12) days from the date of this mailing unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION ;, s Iro ritten y: hris S hmoyer, Associate Planner Reviewed By: Kevin M. Harrison, Principal Planner CRS:slr File No. CU -00-65, WoodsNan Vaikenberg Page 15 64 u !: .tea 01a got Of3: Q . r NIN .� a .�l T H N N H 3 O cL W p HwO o 4- p w 0W H N u \ 3 7 \ .%1 N H •N w u •N N U u •p O• N o H .0 N O N w •rl W W CI u p,u •rl Qa O w H u o y•p R{ U ON cna M E N? N UW•.iW w '� w� •7 O w •N H d C E •.•� 'C k. Hu Lwi •.Ci AiN o3 Cw O 003 W'W I a w H w 3 .a U u ro wooU •A w W N .G N N d W N w w oa •pHOH oou•ou pW awccNN �N F V H' Ho w'O >+•�ENwwN w W o =.H Id ,L', H� SL n \ w P. H 9L •H N o w w d' N N w H o O > N .$4 N 0 1 3 .-� w b W w .,� W W o o C ..1 tf O N O o oa O .°•� O. C.'O c •tl .N N w •••� C H> H'O N a G, N oD r. .w O C Ca e•i w N .-7 I H +•+ o H w N C C d >� 7 a\ ++ C '� '� u 4! ll• <-a W N O U H N N CO •'t w O G •ri U •L A n •p Loi . . Cl< <.: E?: L= O' L+C.Gw 4) (n z HH •.Uig 1O UWap,mw "'I U.V .. y Y• ,1 U: U o u W •O W u a 4) .p W -. = N'aD= H Q•W - -i' c 0.E L 'u S .�, N E H w w N U N a u u E o. U W U •'I U o •N L N cc V1 N w •.i o U o 0 o •N o m N �0 w C C C O' H> H N v1 OD2.yyrzaGA33 my•.� W w ¢ p„~y .Hi O •p 3v1 �i r+ N A U'O o w W.0 •� •h ,�L II TJ O r k ,. ZI 1PI oow sg N owl �'t. I 'ON IVIq NOLLIIU fd Z. Bossism a i year�e- "': V / { / iil ♦� 1 W wcn 17: 01 !� S tio 1 aON_ ... 8 $N$80 52 r a� f C.r ♦.r ..^��,/=;i-was __ ' IN N _ W N `46'' - 0-j _ W - ui %Mo Z 41-8 am �� -. rt c.•ie� 1 LU —w , cr. E•-:~ o `^ M �T . .♦..yl. ._/T - Ent w LLJ .• ..:....;fy r .. WLI! A =N N Y 0 h �2= •OQ W CY Q r N p z V =N I — i u) p Z L. S.:S• zx y� LNM O1 1;011} �•_ ♦� �^ ` N © AID _MLLJ— r ~ R s �, ♦AAm N A. Lc) / S .... \l/ T ` UJ CL LLJ W= W W 'J 4 N Q p O N N •�.r.r.Also .r.Allis . SCANNED O �jCK 1 Gl -�a VFGSiatJ F6lrL f rLA � (2�0-00-GG) Under B Reason for applicant to purpose a different site plan from the standard 300' from a road in WA areas. On 3-19-01, conference with Steven George from ODFW, developing a management plan for Wildlife on my property. My desire to put the home and farm operation area away from'the middle of the property to enable me to stay out of the corridor area used by the wildlife. We have agreed to a plan that works with cattle management and wild- life management. This property is large enough to handle one residence a small cattle operation and hog farm, but still not hinder the natural habitats of any wildlife that is already established there or will come there. The plan outline to be as stated below: 1. Browsing area would not be disturbed be any building along the middle of the property, also along the road in and out. This keeps the corridor open. 2. Human activities and barn area and pinned areas will be located totally on the S.E. corner of the plateau near the rimrock, follow - all regulations for set -backs. 3. Applicant would plant a buffer zone of mixed trees to provide a buffer zone for the wildlife and the human activities. This would include but not limited to, Aspens, Birch, Ponderosa pines, Naples, and Dogwoods. Middle size shrubs would be included in the landscape buffer plan. Applicant would stay with a lot of the natural shrubs that Steven mentioned. The buffer would be on the south, west and north sides of the human activity area and farm operations area. 4. Management of this acreage would follow along the lines to keep it in it`s natural state. Cutting the many small juniper trees, to promote the natural growth of the sage brush, bitter brush and bunch grasses.. 5. Applicant is in the process of purchasing irrigation water from Squaw Creek Irrig., using this water to promote natural grasses to grow. Applicant is planting a plot of pine trees around 300, to make a larger buffer frorr+the center of the property. SACC �� Exhit3/;— 1'' AfTL1CH Ts" I.hLDG1F��Np,(,�rYtp��l N Continued froneapter, 18.88 and Section 18.60 6. Steven George would like it, if the cattle could be moved to another area during the months of Sept. through Feb. each year. This would allow some growth for winter feeding needs for the wild- life. He asked how large a herd I would have, I stated about 25 head at any one time. He liked the idea of a smaller herd. I agreed to taking the cattle to another grazing area in the fall and winter months. I want the grazing areas to not be over grazed either as it benefits my cattle operations to have the natural vegetation coming back each year. A farm plan is a better plan if it benefits all resources, private and natural. 7. Fencing is about to start and will be built according to regulations for wildlife friendly according to Section 18.88.070, Fencing Standards Distance between the ground and bottom strand or board is 15 inches. Height will not exceed 48 inches. 8. This property will have one family home on it and only one road to the home. There will be very little road useage on the property due to the type of farming operation present there. This works well on this rocky type of land and yet it can still produce a profit and benefit the local community and merchants. By clearing out the small juniper trees this operation will also help the wildlife in the area. We all will benefit from this site location. PAS AP�G� ct��rrs ` w,c,A �e m,44,A c&n 19iA111 CITY................ STATE.ZIP.... GROUP . ADDRESS ....................... ID NAME .............................. PEND OR97701 FE- 1 PEND FIRE DEPARTMENT 5 NW MINNESOTA BLACK BUTTE OR97759 FD 2 BLACK BUTTE FIRE DEPARTMENT P p BOX a -fin_ 4 RAPINE FIRE DEPARTMENT OR POST OFFICE BOX 10 RAPINE REDMOND OR977 56 OR97756 FD FD 5 REDMOND FIRE DEPARTMENTr. 341 W. DOGWOOD 7 SUNRIVER FIRE DEPARTMENT POST OFFICE BOX 3278 SUNRIVER SISTERS OR97707 OR97759 FD FD B TOLLGATE FIRE DISTRICT C/O P.O. BOX 1509 10 CENTRAL OREGON IRRIGATION DISTRICT JY 97 25947NHAMILTON REDMOND BEND OR97756-1219 OR97702 I I 11 PORTS WATER SYSTEMS LANE 13 SWALLEY IRRIGATION DISTRICT ie P06970FKEA80126 MEND SEND OR97788-5126 OR97701 1 I 14 TUMALO IRRIGATION DISTRICT AVENM SANITARY i SEWER DISTRICT a PAR BOX 1128 c/o KEN TRAVIS. P.O. LAPINE OR »" CISC 16 LAPINE 17 CITY OF BEND - PLANNING DEPT POST OFFICE BOX 431 19 CITY OF SISTERS - NELL THOMPSON DOST OFFICE BOX 39 SISTERS BEND OR97759 DR97708-5067 Cl MISC 20 BEND CABLE COMMUNICATIONS POST OFFICE BUX 5067MiGG ARCH. REVIEW, MAR P 0 BOX 8000 BLACK BUTTE RANCH OR97759 MISC 22 BLACK BUTTE RANCH ILYN JACK C4 DESCHUTES COUNTY ASSESSOR ROAD 1340 NW WALL STREET BEND BEND OR97701 OR97701 CO CO 25 DESCHUTES COUNTY BUILDING DIVISION 117 NW LAFAYETTE AVENUE 27 DESCHUTES COUNTY COMMISSIONERS 117 NW LAFAYETTE AVENUE BEND BEND DR97701 OR97701 Co CO 28 DESCHUTES COUNTY ENVIR. HEALTH 117 NW LAFAYETTE AVENUE 30 SHERIFF'S DEPARTMENT%GREG BROWN BEND 63333rAf [H�FFICE/N/J v�-g4wwuY 20 WESTYE� BEND OR97701 OR97702 CO CO ADDRESS COORDINATOR 117 NW LAFAYETTE AVENUE BEND OR97701 OR97701-1939 CO CO 33 PROPERTY - DISTRICT 11 1340 N.M. WALL. SUITE k100 BEND 34 WATERMASTER 36 CENTRAL ELECTRIC CO-OP. P.O. BOX 846 REDMOND LAPINE OR97756 OR97739 MISC MISC 37 MIDSTATE ELECTRIC POST OFFICE BOX 127 39 TUMALO TOWN IMPROVEMENT DISTRICT See 19806•SECOND STREET BEND BEND OR97701 OR97701 MISC MISC 40 US WEST COMMUNICATIONS 100 N. w. KEAANEVeR9776t SB 42 REDMOND SCHOOL DISTRICT 2J REDMOND SISTERS OR97736 OR97759 SD SD 43 SISTERS SCFM]OL DISTRICT p40 BOX55099N 48 DEPT•OF FISH t WILDLIFE, STEVEN GED 61374 PARRELL ROAD BEND OR97702 ST RGE DEPT. GEOLOGY 6 MINERAL INDUSTRIES 1536 QUEEN AVENUE. S.E. ALBANY BEND OR97701-571:; ST ST 50 20300 EMPIRE AVENUE kB-1- _ 51 DLCD 20300 EMPIRE AVENUE OB -1 BEND DR97701-5713 ST 53 DIVISION OF STATE LANDS 3040 25TH STREET,,S.E.. SALEMOR97310-0100 ST 55 ODOT/AERONAUTICS/GERALD EAMES 61 WATER RESOURCES DEPARTMENT 158 12TH STREET. N.E. SALEM pRINEVILLE DR97310 OR97754 ST US 62 BUREAU OF LAND MANAGEMENT FOREST SERV. POST OFFICE BOX 550 1230 NE THIRD' ST., kA -262 BEND 01 us 63 DISTRICT RANGER, U.S. DISTRICT, D.N.F. POST OFFICE BOX 249 SISTERS OR97759 US 64 SISTERS RANGER 66 REDMOND AIRPORT 2522 S.E. AIRPORT WAY POST OFFICE BOX 3278 REDMOND SUNRIVER OR9775b OR97707 US MISC 67 SUNRIVER OWNERS' ASSOCIATION 69 SUNRIVER UTILITIES POST OFFICE BOX 3699 SUNRIVER PORTLAND OR97707 OR97814 MISC ST 70 OREGON HEALTH DIVISION P. BOX 14450 _ AVENUE 009 1-- DENG ST 74 STEVEN L. JORSENSEN ge EMPIRE 317 NW LAFAYETTE AVENUE BEND TERREBONNE ON97791 OR97760 CO I 76 TERREBONNE DOMESTIC WATER DIST. Lite C AVENUE 78 CITY OF REDMOND - PUBLIC WORKS 875. SE SISTERS RVENUE REDMOND BEND OR97756 OR97701 CI CO Be MICHAEL HOUSER, HISTORIC PLANNER 117 NW LAFAYETTE 886 LA PIN- 4 TOLLGATE PROPERTY OWNERS' ASSN OP p 6 sex i4 BOX 6100 TOLLGATE SISTERS REDMOND OR97759 OR97756 MISC MISC 85 PACIFIC GAS TRANS. CO.. ATTN. LAND 1440 SE LAKE ROAD 1411000000101 1411000000103 LHR LTD ROSEBUD CONTRACTING L L C 71105 HOLMES RD PO BOX 5608 SISTERS OR 97759 BEND OR 97708 1411000000102 1411000003000 DUTSON,THAYNE R SPEAR,STEPHEN SCOTT DUTSON,MARGARET M KLEMPEL,LYNDA JOYCE 4306 NW ARROWOOD CIR RT 1 245A CORVALLIS OR 97330 TERREBONNE OR 97760 1412000001000 1412000001199 DUTSON,TI-IAYNE R LAWRENCE,RENN M TRUSTEE OF REN] DUTSON,MARGARET M LAWRENCE,PATRICIA J TRUSTEE OF] 4306 NW ARROWOOD CIR RT I BOX 246 CORVALLIS OR 97330 TERREBONNE OR 97760 1412000000899 1412000001101 LAWRENCE,DAVID BLAYLOCK,ALBERT J ETUX LAWRENCE,CHRISTINE 5088 PACIFICA DR PACIFIC BCH RT 1 BOX 246 SAN DIEGO CA 92109 TERREBONNE OR 97760 9 1411000000100 BRYAN,JOHN FREDRICK PO BOX 2067 SISTERS OR 97759 1411000000200 USA NO ADDRESS ON RECORD 1412000001199 LAWRENCE,RENN M TRUSTEE OF REN] LAWRENCE,PATRICIA J TRUSTEE OF] RT 1 BOX 246 TERREBONNE OR 97760 2015 Ore. Land Use l3d. App. LEXIS 56 Oregon Land Use Board of Appeals August 17, 2015 LUBA No. 2015-034 Reporter 2015 Ore. Land Use Bd. App. LEXIS 56 CENTRAL OREGON LANDWATCH, Petitioner vs. DESCHUTES COUNTY, Respondent, and JOHN SHEPHERD and STEPHANIE SHEPHERD, Intervenors -Respondents Prior History: [*1] Appeal from Deschutes County. Disposition: REVERSED Core Terms recreational activity, proposed use, venue, recreational, focal, campgrounds, intervenor, dwell, lawn, recreational use, primary use, public park, playground, reception, eating, dance, zone, wedding ceremony, present case, reunion, ball, hunting and fishing, general public, fundraisers, ceremony, staff, farm, film Synopsis NATURE OF THE DECISION Petitioner appeals a county decision approving a wedding event facility as a private park on land zoned for exclusive farm use (EFU). MOTION TO INTERVENE John Shepherd and Stephanie Shepherd (intervenors), the applicants below, move to intervene on the side of respondent. No party opposes the motion and it is granted. 2015 Ore. Land Use Bd. App. LEXIS 56 Counsel Page 2 of 8 Paul D. Dewey, Bend, filed the petition for review and argued on behalf of petitioner. No appearance by Deschutes County. David J. Hunnicutt, Tigard, filed the response brief and argued on behalf of intervenors -respondents With him on the brief was Oregonians in Action Legal Center. Panel: BASSHAM, Board Chair; HOLSTUN, Board Member; RYAN Board Member, participated in the decision Opinion By: BASSHAM Opinion You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. FACTS The subject property is a 1.6 -acre portion of a 216 -acre parcel zoned EFU, within a Wildlife Area (WA) sub -zone. The 1.6 -acre portion is located at the highest elevation of the parcel, and is developed with a single family dwelling, a gazebo, a circular driveway and a large grassy [*2] area. The remainder of the parent parcel is unirrigated land used formerly for cattle grazing, but currently not in agricultural use. The dwelling was approved in 2001 as a dwelling in conjunction with farm use, pursuant to a farm management plan that proposed a commercial farm operation consisting of grazing cattle and raising hogs. However, the farm management plan was not implemented. In 2011, intervenors began using the dwelling and property to conduct commercial wedding events, which led to a code enforcement complaint. Intervenors submitted an incomplete application seeking permission to conduct commercial wedding events on the property, but the application expired. In 2013, intervenors submitted the present application, seeking to establish a "private park" on the 1.6 -acre portion of the property, in order to conduct weddings, receptions, reunions and similar events. County staff approved the proposal, described as follows: Page 3 of 8 2015 Ore. Land Use Bd. App. LEXIS 56 "The applicant is proposing to establish a private park on the subject property. The purpose of the private park would be to host wedding[s], wedding receptions, family reunions, fundraisers and charity balls. The applicant describes the following activities [*3] that will occur during events: "Wedding Ceremony (which typically lasts only 15-20 minutes) "Outdoor eating with family and friends "Public speaking using a sound system "Listening to amplified music "Singing, including karaoke "Dancing in the pavilion (gazebo) "Lawn games, such as volleyball and badminton in the volleyball court, croquet on the lawn, catch, bocce ball, corn hole and ring toss. "The events would be conducted on an approximately 1.6 -acre lawn area that is a 350 -foot by 250 [-foot] oval which includes some juniper trees. Parking is provided on a contiguous 1 -acre parking area, which is accessed from the driveway that connects to Holmes Road. Event participants would have limited access to the existing dwelling and full access to a gazebo on the property. The wedding party (including bridesmaids, groomsmen and immediate family) will have access to the main floor of the home and two upstairs rooms. Weddings will not be conducted inside the dwelling. Temporary tents and the gazebo will be used in the event of inclement weather. "Restrooms will be provided through portable restrooms and guest access will be provided to an existing downstairs restroom in the dwelling. [*4] Food is either prepared off-site or cooked on-site by licensed caterers using their own equipment. The existing kitchen in the dwelling will be used for food assembly only. "The private park would be open to event participants one weekend day per week beginning in late May of each year and ending in early October, not to exceed 18 days per calendar year. Each reception would last no more than 8 hours and conclude by 10 p.m. A limit of no more than 250 guests per event would be enforced by the applicant. "The applicant has proposed that guests will be allowed to tent camp or stay in recreational vehicles following events as a precaution against unsafe driving. The applicant states that this use does not constitute a commercial campground." Record 372-73. The county board of commissioners initiated direct review of the staff decision. The commissioners approved the application, adopting the staff decision and findings and additional findings and conditions. This appeal followed. Page 4 of 8 2015 Ore. Land Use l3d. App. LEXIS 56 FIRST ASSIGNMENT OF ERROR ORS 215.283(2)(c) allows in an EFU zone [p]rivate parks, playgrounds, hunting and fishing preserves and campgrounds," subject to county approval and conditions. 1 Deschutes [*5] County Code (DCC) 18.16.031(E) implements the statute, using identical language. OAR chapter 660, division 033, the administrative rule that governs agricultural land, includes additional restrictions and requirements for private parks, playgrounds, hunting and fishing preserves and campgrounds. Under the first assignment of error, petitioner advances two challenges to the county's conclusion that the proposed use qualifies as a "private park" authorized under ORS 215.283(2)(c). We address each in turn. A. A Private Park Need not Exclude the Public First, petitioner argues that a defining characteristic [*6] of a "private park," as opposed to a public park or a simple "park," is that a private park is for private use only, and is not open to the general public. Because the proposed event venue in the present case caters to the public, petitioner argues that for that reason alone the proposed use does not qualify as a "private park." Petitioner urges that LUBA should distinguish or overrule prior LUBA case law, discussed further below, to the extent those cases suggest that recreational use of private land that is open to the public qualifies as a "private park" authorized under ORS 215.283(2)(c). To support that proposition, petitioner cites Steel v. City of Portland, 23 Or 176, 184- 85, 31 P 479 (1892), in which the Oregon Supreme Court considered whether labeling a four -block area on a recorded plat as a park, followed by sale of surrounding residential lots and city management of the four -block area as a public park, had the effect of dedicating the four -block area to the city as a public park. The Court answered the question in the affirmative. Petitioner cites to a discussion in Steel of Blackstone's Commentaries, to the effect that, [*7] depending on context, one possible meaning of "park" is an enclosure of private land open only to the owner or surrounding property owners, and not open to the general public, for example a "park" around a large manor. Petitioner argues that the Oregon legislature, in providing for a "private park" in the EFU zone, intended that specialized meaning, to allow only parks for private use that exclude the general public. We understand petitioner to argue that only a "public park" authorized under ORS 215.283(2)(d) can admit the general public. ' ORS 215.283(2) provides in relevant part that a county may approve in the EFU zone: "(c) Private parks, playgrounds, hunting and fishing preserves and campgrounds. Subject to the approval of the county governing body or its designee, a private campground may provide yurts for overnight camping. * * * "(d) Parks and playgrounds. A public park may be established consistent with the provisions of ORS 195.120." Page 5 of 8 2015 Ore. Land Use Bd. App. LEXIS 56 The text and context of ORS 215.283(2)(c) do not suggest any such intent. We first note that the adjective "private" modifies not only "parks," but also the subsequent nouns "playgrounds, hunting and fishing preserves and campgrounds." Even if the term "private park," standing alone, could have the limited and rather obsolete meaning described in Steel, it seems unlikely that the legislature intended that limited meaning when it applied the same adjective "private" also to "playgrounds, hunting and fishing preserves and campgrounds." Further, the context of ORS 215.283(2)(c) demonstrates that the adjective "private" is intended to distinguish [*8] privately -owned and managed recreational lands from publicly -owned and managed recreational lands. As noted, ORS 215.283(2)(d) provides for "parks and playgrounds," with the further proviso that "[a] public park may be established consistent with the provisions of ORS 195.120." See n 1. ORS 195.120 is concerned with state and local parks, i.e. publicly owned and managed parks. ORS 195.120(2) directs the Land Conservation and Development Commission (LCDC) to adopt administrative rules providing for allowed uses in state and local parks, and LCDC has done so, in OAR chapter 660, division 034. See also OAR 660-033-0130(31) (providing for "public parks" on EFU land that may include only the uses specified in OAR chapter 660, division 034). LCDC has adopted somewhat different rules that apply to privately owned and operated parks, campgrounds, etc. See OAR 660-033-0130(19). None of these statutes or administrative rules distinguishes between recreational lands based on whether the lands are, or are not, open to the public. Based on the text and context of the relevant statutes and rules, we reject petitioner's argument that a "private park" authorized under ORS 215.283(2)(c) [*9] is limited to parks that exclude the general public. B. An Event Venue is not a Recreational Use The staff decision that is incorporated as the county's findings reviewed several county, LUBA and Court of Appeals' decisions regarding what activities qualify a proposed use of land as a "park" or "private park." Neither term is defined in ORS chapter 215 or OAR chapter 660. In an early case, Spiering v. Yamhill County, 25 Or LUBA 695 (1993), LUBA reviewed several dictionary definitions of "park" and concluded that as used in the relevant provision of ORS chapter 215, the term is intended to mean a tract of land set aside for public recreational use. LUBA held that the proposed use in that case, a paintball park, was a recreational use, and thus the proposed use of land qualified as a "park." Id. at 704-05. See also Utsey v. Coos County, 38 Or LUBA 516, rev dismissed 176 Or App 524, 32 P3d 933 (2001), rev dismissed 335 Or 217, 65 P3d 1109 (2003) (a proposed off-road Page 6 of 8 2015 Ore. Land Use Bd. App. LEXIS 56 motorcycle riding facility is a [*10] recreational use that qualifies as a park on EFU- zoned land). Applying Spiering, the staff decision answered the question of whether the proposed use fits within the use category of a "private park" by analyzing whether and to what extent the proposed activities constitute "recreation" or the recreational use of land. Intervenors argued to the county that all the proposed activities, including weddings and other events, constitute "recreation." The county rejected that argument, concluding that a wedding itself is not recreational activity. However, the county concluded that other activities on the property, specifically (1) outdoor eating, (2) public speaking, (3) listening to music, (4) singing, (5) dancing, (6) and lawn games, constitute recreation or recreational activities. The county concluded that these recreational activities, viewed in isolation, are sufficient to qualify the proposed use as a "park." The county then considered whether use of the property to conduct wedding ceremonies and other non -recreational activities disqualifies the proposed use as a "park." According to the county, a recreational park can host nonrecreational activities such as wedding ceremonies [*11] and similar activities as long as such events are "incidental and subordinate to the recreational activities," which the county characterized as "minor and secondary activities relative to the recreational activities." Record 382. Turning to that question, the county concluded that wedding ceremonies and similar ceremonies and events are "incidental and subordinate" because they "last for just a fraction of the time in which the event is held." Record 383. Citing an earlier hearings officer decision, the county compared a wedding ceremony or similar ceremony to an awards ceremony that follows a sporting event, described as a "minor offshoot" of such sporting events. Id. We understand the county to ultimately conclude that the primary use of the property is recreational activity, and the proposed event venue as a whole can be approved as a "private park," notwithstanding non -recreational aspects such as wedding ceremonies, because such non -recreational aspects of the event venue are merely "incidental" to the primary recreational activities. Petitioner challenges that conclusion, and we agree with petitioner that the county's decision misconstrues the applicable law. We owe no [*12] deference to the county board of commissioners' interpretation of the statute and administrative rule. Kenagy v. Benton County, 115 Or App 131, 134, 838 P2d 1076 (1992). Stated simply, the county's analysis represents the tail wagging the dog. As we understand the proposed use, the public is not coming to intervenor's property to engage in recreational activities on intervenors' lawn. The public is coming to the property (and paying for the right) to conduct some focal event (a wedding, wedding Page 7 of 8 2015 Ore. Land Use Bd. App. LEXIS 56 reception, family reunion, fundraiser, charitable ball, etc.,) that is the entire reason for being on the property in the first place. The only basis the county cites for concluding that a wedding or other event is "incidental" to the above -listed activities (eating, dancing, lawn games, etc.) is the temporal brevity of ceremonial aspects of the focal event compared to the amount of time spent celebrating the focal event through eating, dancing, etc. However, comparing the amount of time spent on the ceremonial aspects of the focal event versus the amount of time spent on alleged "recreational" activities does not accurately reflect the relationship [*13] between the focal event and those activities. Clearly, it is the focal event that is the primary use, and any associated activities (eating, dancing, lawn games, etc.) are, at best, incidental to the focal event. No party argues on appeal that the focal events (weddings, wedding receptions, family reunions, fundraisers, charitable balls, etc.) themselves constitute "recreation" or "recreational activities," and they do not. Thus, even if some of the incidental activities associated with the focal event (eating, dancing, etc.) could be described as "recreational activities," such incidental activities cannot convert the proposed primary event venue use into a recreational use that is essential to constitute a "private park" for purposes of ORS 215.283(2)(c). The foregoing is consistent with our approach in resolving a similar issue regarding whether a proposed wedding event venue fit within the use category of "on-site filming, which like private parks is a category of nonfarm use allowed in the EFU zone, pursuant to ORS 215.306. Smalley v. Benton County, Or LUBA (LUBA No. 2014-110, March 17, 2015). In Smalley, the applicant attempted to argue that a wedding [*14] event venue constitutes "on-site filming," or the recording of "documentary," because the wedding event is often recorded or video-taped by the participants. The county rejected that argument, and LUBA affirmed the county's decision. We concluded that the proposed primary use of the property was the wedding event itself, and that any filming or recording of that event that would occur is, at best, incidental to the primary wedding event. Slip op at 10. Similarly, in the present case, as proposed the primary use is an event venue to conduct various events (weddings, receptions, reunions, fundraisers, charitable balls, etc.), and any "recreational" activities associated with such events (eating, dancing, singing, lawn games) that may or may not occur are, at best, incidental to the event. In both Smalley and the present case, the applicant is attempting to use incidental elements of a proposed primary use to fit within a use category that does not encompass the proposed primary use. A different way to articulate the distinction we made in Smalley and make here in the present case is to apply a "causation" test. Would the elements that arguably fit within the use category (filming [*15] in Smalley, "recreational activities" in the Page 8 of 8 2015 Ore. Land Use Bd. App. LEXIS 56 present case) occur on the property without the wedding or other event? The answer in both cases is clearly no. The filming in Smalley, if it occurs, would occur only if there is a wedding on the property. In the present case, any recreational activities on the property will occur only if there is an event (wedding, reception, reunion, fundraiser, charitable ball, etc.) that is the reason the event participants are allowed on the property. But for the event, the public would not engage in any recreational activities on intervenors' property. The event is therefore the primary use, and any incidental recreational activities that may or may not occur in association with the event do not qualify the proposed event venue as a private park allowed on EFU land under ORS 215.283(2)(c). The first assignment of error is sustained, in part. SECOND, THIRD AND FOURTH ASSIGNMENTS OF ERROR Under these assignments of error, petitioner advances additional challenges to the county's decision to approve the event venue as a private park. However, we concluded under the first assignment of error that the county erred in approving the proposed [*16] use as a "private park" allowed in the EFU zone under ORS 215.283(2)(c). The proposed use cannot be approved as a private park. Because the decision "violates a provision of applicable law and is prohibited as a matter of law," the decision must be reversed. OAR 661-010-0073(1)(c). Accordingly, there is no point in addressing petitioner's additional challenges to the county's decision. The county's decision is reversed. End of Document Published Aug. 14, 2oio at 05:ooAM Guilty verdict in wedding case Deschutes County woman violated agricultural zoning, judge rules A Deschutes County woman violated county code by renting out her farm property for a wedding, a Deschutes County Circuit Court judge decided this month. Kelly Brown, who operates The Gardens at Flying Diamond Ranch on her Helmholtz Way property in Redmond, was found guilty of violating Deschutes County land use laws by Circuit Court Judge Barbara Haslinger. The judge ruled she improperly used her land as a wedding venue in June 2009. Brown's attorney, Dave Hunnicutt with Oregonians In Action, said they were disappointed with the decision. "We haven't decided whether to appeal or not, but we're considering all our options, he said. Brown was charged with four counts of violating Deschutes County code for operating an event venue without approval on her property, which is zoned as exclusive farm use. According to county code, exclusive farm- use properties cannot be used as event venues. Holding weddings and large-scale events on Deschutes County farm properties has been a contentious issue over the past few years. In 2008 a couple operating the Lavender Pond event site on agricultural land east of Bend applied for a code change that would have allowed weddings and other events on land zoned for multiple -use agriculture. That request was denied by the County Commission. Then in 2oo9 a group of property owners - including Brown - applied for a similar code change, then backed off. In July 2009 the county halted consideration of the code change. Since then, the state's Land Conservation and Development Commission has taken up the issue. "We think this case has the potential to resolve a number of cases across the state concerning use of rural property for weddings," said Hunnicutt, who took on Brown's case for free. "There's no state guidance on the issue. It's being dealt with on a county -by -county basis, and we're hoping that eventually Deschutes would take the lead and create a model ordinance that other counties could use. So far that hasn't happened." Haslinger's Aug. 3 decision is for one of the violations, a wedding that took place on Brown's property on June 13, 2009. Brown faces three outstanding violations, which Hunnicutt said are being negotiated. According to Haslinger's opinion on the case, the county received complaints about weddings being held on Brown's property, and Brown sent a letter to Deschutes County Community Development Director Tom Anderson detailing six weddings to be held on her property throughout the summer of 2009, including June 13, 2009. A Deschutes County code enforcement technician went to Brown's property on that day, where he saw a sign advertising the property as available for outdoor events and weddings. The code enforcement technician also took pictures of cars and people coming to the property. "The number of cars and people were consistent with a conclusion that a large outdoor event was being held on the property," the opinion states. Haslinger's opinion also states the code enforcement technician saw similar events take place on the property three other times in June and July 2009. With that evidence, an enforcement officer went to the property and gave Brown a citation for violating county code and the case went to trial on June 4. Brown argued the code was vague and that, by prohibiting weddings from being held on certain types of property, it violated the First Amendment of the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act, a federal law designed to keep state and local governments from discriminating against religious land uses in zoning laws. In her opinion, Deschutes County Circuit Court Judge Barbara Haslinger found that the citation was properly issued to Brown. Further, Haslinger found the county code was not vague, and the code was not a violation of federal law. During the trial, county officials argued that Brown could have applied for a conditional use permit, which if granted would have put her in compliance with the code. According to the opinion, Brown said the permit was too expensive, and she believed her application would have been denied. But Haslinger said the application would not necessarily be denied. "I conclude that Ms. Brown cannot raise a constitutional challenge to the application of the Deschutes County code to her property until she can establish that her proposed use of the property cannot be approved as a conditional use," Haslinger wrote. Hunnicutt said he and Brown are considering applying for a conditional use permit. Haslinger found Brown guilty of violating land use laws. Sentencing is expected to take place at 8:45 a.m. Tuesday. Anderson said the maximum penalty under state law for the Class A infraction is a fine of $720. According to Brown's company website, couples can book Saturday weddings at the gardens at a cost of $2,500; Sunday weddings are $1,500. A maximum of 350 guests are allowed at the property, and a wedding with more than 200 guests requires an additional $300. Hunnicutt said Brown is no longer holding weddings on her property. Shepherdsfield 71120 Holmes Road Sisters, OR 97759 (5441) 548-9905 Are you looking for a gorgeous, private setting, starting at just $2450? Shepherdsfield has it all! Set on 216 private acres, elevated above the sprawling farmland of Sisters, enjoy panoramic views, Prep in the elegant dressing rooms. Marry under the massive arches, then enjoy the reception under the lights on the 2 acre lawn. Dance in the pavilion. And don't stress out because you get the venue for 3 days! Prices range from $2450 (under 100 guests) to $3400 (250 guests), including chairs, tables, sound system, 2 large tents, beautiful dressing rooms, house, deck and much rnore! Many great dates still available for 2018! At Shepherdsfield, it more than a wedding. It's an event! witvv\.I >1,'j)1i e rd s f i e Id, c cirri FIGURE 1 M W w D LL R c O cu o N ,L O U � O O E c � Q N .� N Co cB N i a•-� � N O c C_ N > N -O O U O M O � N � N � � ' O N c � � O O O O i c9 v m r S .Q I L '1 Ln W LL i-+ ,^ Ja N i O }r 4 O ..Q I L '1 Ln W LL i-+ N i O }r 4 O ..Q C N O O Z 4 a = > a U I L '1 Ln W LL w LU cc D (7 LL 4-J 0 (D 0 c: LO 0 0 0 z cz 4 -1 0 E 0 < r 0 w ry 0 Lo 0 o 0 0 uj0 0) 4V)- iv LU (f) Ld T) 00 (D WLn u cr T ac) u. > ui Q) O 41 co YV� ......... ... 00 Lij (D LL k Read Articles Tell us! 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All rights reserved. William Groves From: William Groves Sent: Friday, April 27, 2018 11:06 AM To: 'John Shepherd' Cc: Phil Henderson Subject: Does a church need a permit? Hi John, Although a small "house church" on par with hosting weekly bible studies likely does not need a land use permit because it is incidental and subordinate to the residential use, your application proposes to use your house as a "church" to thereby also permit additional activities customarily associated with a church. Deschutes County Code defines church as follows: "Church" means an institution that has nonprofit status as a church established with the Internal Revenue Service. In a EFU zone, Note that Churches aren't "outright" uses, but are: 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. Specifically, a church is subject to site plan review. Having a church permit comes with an advantage under ORS 215.441 in that customary activities are allowed: 215.441 Use of real property for religious activity; county regulation of real property used for religious activity. (1) If a church, synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship is allowed on real property under state law and rules and local zoning ordinances and regulations, a county shall allow the reasonable use of the real property for activities customarily associated with the practices of the religious activity, including: (a) Worship services. (b) Religion classes. (c) Weddings. (d) Funerals. (e) Meal programs. (f) Child care, but not including private or parochial school education for prekindergarten through grade 12 or higher education. Please note, however, that I do not advocate that you take any particular course of action or that you accept my understanding as conclusive on these issues. You definitely will need to seek out your own independent legal guidance. I'll include this correspondence in the record. Let me know if you have any questions. Thanks, Will Will Groves I Senior Planner, CFM DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue Bend, Oregon 97703 M°PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd 11 C3 6 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: John Shepherd <shepherdsfieldCa)_gmail.com> Sent: Thursday, April 26, 2018 8:33 PM To: William Groves <William.Groves(&deschutes.org> Cc: Phil Henderson <Phil.Henderson a-deschutes.org> Subject: Does a church need a permit? Dear Will, I've been pondering the question that Commissioner Henderson asked you Monday: whether Shepherdsfield Church even needs a permit. You responded but didn't exactly answer his question. Considering that churches are a use permitted outright (not needing a permit) by state law, just like farming, and... Considering that, by Deschutes County Code definition, Shepherdsfield Church is a valid church (having received a 501 c3 authorization from the IRS) Therefore, Shepherdsfield doesn't need a county or state permit to exist, meet on non -high value EFU and exercise our ministry (including weddings, counseling, memorial services and community outreach.) And, considering that you stated that activities normally associated with a home, such as Bible studies, do not need additional permits to gather, and Considering that our house and property have already been examined and proven to meet safety and health standards for a maximum church gathering of 25, And considering that our weddings and other church related outreach functions are outside gatherings... And considering that our parking and road conditions have been examined and proven to meet County standards... Do we legally need a permit to gather and function? If so, please cite the relevant code. Remember, this all started when Code Enforcement issued me a code violation notice stating that "a church has located in your home without necessary permits." I don't mean to be testy, but, as Commissioner Baney remarked, this is an unusual situation. Your clarification would be appreciated. Thanks for your help. Pastor John Shepherd (PS. This is being cc'd to Commissioner Henderson) William Groves From: William Groves Sent: Friday, April 27, 2018 2:46 PM To: William Groves Cc: Tom Anderson; Adam Smith Subject: Shepherd Farm Management Plan Attachments: 247 -16 -0001S9 -SP, 161-AD.docx Commissioners, Commissioner Baney had asked about the farm management plan (FMP) in this matter. Hearings Officer Hicks provides a summary on page 39 of the attached decision (denied by LUBA on other grounds) and an analysis of the "violation" of the FMP on pages 37-38. I've copied LUBA's response to the H.O.'s findings on the FMP below. Normally, we don't send you record materials directly, but I thought it was appropriate in this case where the materials had been directly requested by a commissioner. Please let me know if you have any questions. Thanks! 9 FOURTH ASSIGNMENT OF ERROR 10 DCC 22.20-15 provides in relevant part that if any property is in 11 violation of the conditions of approval of any previous land use decisions, the 12 county shall not approve any application for land use development, unless the 13 approval results in the property coming into full compliance with the 14 conditions of approval. tinder the fourth assignment of error, petitioner argues 15 that the Shepherds are in violation of the 2001 farm management plan, which 16 requires that a cattle and hog operation of a certain size and with certain 17 improvements be established on the property. Petitioner argued to the hearings 18 officer, and now on appeal, that the Shepherds have never implemented the 19 2001 farm management plan, and thus DCC 22.20. 15 prohibits the county from 20 approving a new application for land use development until the plan is fully 21 implemented- As noted, the hearings officer rejected petitioner's arguments. I Sustain -Ing the fourth assignment of error would at most result in remand 2 to the county to require that the suklect property be brought into compliance 3 with the 2001 farm management plan. Because we must reverse the county's 4 decision under our disposition of the third assignment of error, we see no 5 purpose in resolving the parties' arguments Linder the fourth assignment of 6 error. 7 We do not reach the fourth assignment oferror. Will Groves Senior Planner, CFM -NN 117 NW Lafayette Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 Tel: (541) 388.6518 1 www.deschutes.org/cd 0 Q 0 Disclaimer: Please note that the information in this email is an informal statement mode in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. 2 Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -16 -000159 -SP and 161 -AD SUBJECT: Administrative Determination and Site Plan Review for a Church in the Exclusive Farm Use Zone. APPLICANT/OWNER: John and Stephanie Shepherd 71120 Holmes Road Sisters, Oregon 97759 LOCATION: The subject property is located at 71120 Holmes Road, Sisters, and is further identified as Tax Lot 103 on Deschutes County Assessor's Map 14-11. STAFF CONTACT: Will Groves, Senior Planner PUBLIC HEARING: June 28, 2016, 6:00 p.m. Barnes and Sawyer Rooms Deschutes Services Center 1300 N.W. Wall Street, Bend, OR 97701 RECORD CLOSED: July 12, 2016 APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, County Zoning Chapter 18.04, Title, Purpose and Definitions Chapter 18.16, Exclusive Farm Use Chapter 18.88, Wildlife Area Combining Zone Chapter 18.116, Supplementary Provisions Chapter 18.124, Site Plan Review Title 22, Deschutes County Development Procedures Ordinance II. BASIC FINDINGS: A. LOCATION: The subject property is located at 71120 Holmes Road, Sisters, and is further identified as Tax Lot 103 on Deschutes County Assessor's Map 14-11. B. LOT OF RECORD: The record indicates the county determined the subject property is a legal lot of record through a 1995 lot -of -record verification (LR -95-44). C. ZONING: The subject property is zoned Exclusive Farm Use—Lower Bridge Subzone (EFU-LB), and is within a Wildlife Area (WA) Combining Zone. The property is designated Agriculture on the Deschutes County Comprehensive Plan map. 247 -16 -000159 -SP / 161 -AD D. PROPOSAL: The applicants are proposing to use the property as a church, commonly referred to as "Shepherdsfield Church" (hereinafter the "Church"). Church use of the property would include: • Weekly services, primarily conducted in the existing dwelling • Church related events, specifically weddings, conducted outside the existing dwelling and restricted to mid-May through mid-October; • Wedding receptions and/or wedding ceremonies outside the existing dwelling and restricted to mid-May through mid-October • Other over -flow church events conducted outside the existing dwelling • Family and marriage counseling • Church functions allowed by ORS 215.441 John Shepherd is a licensed pastor and head of the Church, which consists of a small congregation that has met in the basement of the residence on the property every other Sunday for worship, bible study, ministry and prayer since 2009, until the County instituted code enforcement proceedings in 2015. He testified at the hearing that the scope of activities includes worship, bible study, prayer, family counseling, meeting the needs of the community through outreach and charity, weddings, memorial services and other ministries. The record also shows that the Church encourages practice outreach to those in the community, both Christian and non-Christian. Mr. Shepherd referred to the narrative description of activities set forth in the church's IRS 501(c)(3) application, approved in January 2016, DLN #17053307311005. Shepherdsfield Church was incorporated in the State of Oregon in 2013, registry #992821-97. As set forth in the Community Development Department's February 3, 2015 Findings & Decision in File Nos. 247 -14 -000 -228 -CU and 229 -SP (upheld by the Deschutes County Board of Commissioners, but reversed by Oregon LUBA, which decision was upheld by the Oregon Court of Appeals), the description of wedding events that would take place on the property has not changed in the subject applications. Church -related events, including but not limited to weddings, would be held on the subject property up to one weekend per week, beginning in late May and ending in early October, not to exceed 18 days per year. During outdoor events, restrooms are proposed to be provided through portable restrooms. Food is proposed to be prepared off site or cooked on-site by licensed caterers using their own equipment. The existing kitchen in the dwelling would be used for food assembly only. Temporary tents and an existing gazebo would be used in the event of inclement weather. The applicant's materials state that weddings on the subject property have averaged 120 persons, with the largest wedding event comprised of 180 persons. The largest funeral event was comprised of approximately 150 persons. The applicant provided the following descriptions and proposed limitations on the use: The church will have a maximum capacity of 25 persons. Gatherings of the congregation will not exceed 60 meetings per calendar year. 247 -16 -000159 -SP / 161 -AD All event -associated activities, including amplified music, parking, sanitation, food preparation, would comply with county guidelines. Specifically, amplified music would be off by 10 PM and would not exceed 30 decibels at the property line so as not to disturb nearby cattle or growing pasture grass. Parking lot would be covered with gravel, and, as demonstrated in our approved Private Park permit, would provide adequate parking spaces, appropriate flow and have six signed handicapped parking spaces. Church staff would perform no food prep for events without appropriate licenses. A limit of 250 guests will be imposed on church events. Such events will be restricted to mid-May through mid-October. The only areas of the house that would be available for church and event related activities would be the down stairs and two bed rooms upstairs. These have already been inspected and approved for activities under 25 persons. The deck would also be available, and has been inspected and permitted for commercial activity. Community outreach activities, including tutoring of children with dyslexia, community drama productions with children, children's choirs, family and marriage counseling, hosting and officiating of weddings would also take place on the subject property. The applicants provided evidence that the provision of weddings and memorial services on the subject property is community outreach and intended to allow those with lesser means the ability to enjoy such services at a reduced price. By comparison, other wedding venues charge $6500, but the Church charges only $1950 for equal value. While other ministers charge $350-500 for officiating, the Church charges only $150, which includes meeting with the couple to design the wedding, the wedding rehearsal and officiating the service. Pastor Shepherd also offers premarital and marriage counseling to those involved. This ministry started when Mr. Shepherd first hosted/performed two weddings on the property for members of his congregation. After that, he opened up the grounds for others outside the church to be married. E. SITE DESCRIPTION: The subject property is approximately 216 acres in size and irregular in shape. It is developed with a single-family dwelling, gazebo and access driveway. The property takes access from Holmes Road, a designated rural collector road, which abuts the property along its northern property boundary. The property contains steep north -facing slopes and has vegetation consisting of juniper trees and native brush and grasses. The developed area consists of approximately two acres located at the highest elevation on the property, approximately 180 feet above Holmes Road, and includes the dwelling, gazebo, a large grassy area and a circular driveway. The Assessor's records indicate the subject property has no irrigated land, but the applicant presented evidence they have purchased 4.6 acres of irrigation water rights. F. SURROUNDING LAND USES: The subject property is surrounded by properties zoned EFU in both public and private ownership. To the north is an approximately 540 -acre property engaged in cattle grazing and developed with a guest ranch (Long Hollow Ranch). Other land to the north along Holmes Road is generally engaged in farm use. 247 -16 -000159 -SP / 161 -AD To the south is a large undeveloped, publicly -owned tract owned and managed by the US Bureau of Land Management (BLM) that consists of juniper woodland. Also to the south is an approximately 80 -acre parcel engaged in farm use and developed with a single-family dwelling. Adjacent to and east of the subject property is a 77 -acre parcel engaged in farm use and developed with a dwelling. Adjacent to the west are two 40 - acre parcels, each of which is developed with a single-family dwelling. Further to the west are two approximately 100 -acre parcels engaged in farm use. G. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area and the soil map included in the County packet, there are five soil units mapped on the subject property: Map Unit Symbol Map Unit Name Rating Percent 63C Holmzie-Searles complex, 0 to 15 percent slopes 6 54.8% 101E Redcliff-Lickskillet-Rock outcrop complex, 30 to 50 percent south slopes 6 9.0% 106D Redslide-Lickskillet complex, 15 to 30 percent north slopes 6 30.0% 138B Stukel sandy loam, 3 to 8 percent slopes 6 5.8% 141C Stukel-Deschutes-Rock outcrop complex, 0 to 15 percent slopes 6 0.4% Totals for Property 100.0% The proposed church and outdoor church event area are located on soils mapped as 63C, Holmzie-Searles complex (0-15% slopes), with a capability class of 6 without irrigation. None of these soil mapping units are rated high-value when irrigated. The applicant testified they recently purchased approximately 3.5 acres of irrigation water from the Three Sisters Irrigation District. H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several public agencies and received the following comments: 1. Deschutes County Building Division: The Deschutes County Building Safety Divisions code required Access, Egress, Setbacks, Fire and 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. 2. County Transportation Planner: I have reviewed the transmittal materials for 247-16-000159-SP/161-AD for a church in the Exclusive Farm Use (EFU) zone at 71120 Holmes Road, 14-11-00, Tax Lot 103. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook indicates a church (Land Use 560) generates an average of 9.11 weekday trips per 1,000 square feet. John Shepherd intends to use his 6,000 - square -foot home as a church. Staff assumes only the ground floor would be 247 -16 -000159 -SP / 161 -AD 4 used, therefore staff bases all of its calculations on that size. (The applicant states the church will accommodate 25 members at any one service; however, it is County practice to base traffic assessments on building size rather than numbers of attendees or employees. This is because a church or business can vary in size of attendance at a service or number of employees without any further County review whereas changing the size of a building often requires County approval.) The applicant also includes an outdoor gazebo and lawn of 1.61 acres as being locations where church activities will occur and which will be used if services exceed 25 attendees. Staff did not include those locations in its transportation assessments. The church could be expected to generate approximately 27 weekday trips (9.11 X 3). Deschutes County Code (DCC) at 18.116.310(C)(3)(a) states no traffic analysis is required for any use that will generate less than 50 new weekday trips. The proposed land use will not meet the minimum threshold for additional traffic analysis. The applicant states the gazebo and lawn area will be used when attendance exceeds 25 at any one service, but does not indicate if there will be adequate parking spaces for the overflow. Also if the County bases its transportation assessment on size of building rather than number of attendees, then the criteria under County code for church is one space per 50 square feet. This would mean a total of 60 parking spaces (3000/50). The applicant has also indicated church - related events would be limited to 250 persons. The burden of proof needs to address if there adequate all-weather surfaces for parking. The applicant asserts there is 200 feet of sight distance in each direction where the driveway connects to Holmes Road. Holmes Road is a rural, 55 mph facility, and the Association of American of State Highway and Traffic Officials (AASHTO) Greenbook calls for 610 feet of intersection sight distance and 495 feet of stopping sight distance. The applicant should contact Mike Martin at the Road Department (541-322-7150) to assess the actual sight distance and determine if there are ways (removing trees or trimming vegetation, for example) to increase the sight distance from the driveway. The applicant references the County's traffic regulations are limited to weekday use. That is partially correct. The traffic impact analysis thresholds are tied to weekday traffic generation; however, sight distance requirements apply regardless of the day of the week. Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,852 per p.m. peak hour trip. The ITE manual indicates a church will generate 0.55 trips per p.m. peak hour per 1,000 square feet; therefore the church would generate 1.65 p.m. peak hour trips (0.55 X 3). The applicable SDC would be $6,356 ($3,852 X 1.65). 3. Deschutes County Environmental Soils: The septic system has been authorized for this use or essentially the same use under septic authorization notice 247-15-002329 (see below). The proposal for the church is not significantly different from the septic authorization; therefore, the septic system should be adequate to serve the proposal. Authorization to change the use of this residence to include events around a park is granted with the installation of an effluent filter sized to accommodate at least 750 gallons per day flow. During events approximately 40-50 guests will be 247 -16 -000159 -SP / 161 -AD allowed to use the restrooms in the residence in association with an event. Additionally portable toilets are brought in for the events. No food preparation or food service for events is to take place in the residence. The events could potentially increase the peak flows approximately 100 gallons. Because these commercial events can create surge flows the effluent filter is required in the outlet of the septic tank. The existing system consists of a 1500 gallon septic tank with approximately 400' of drainfield down slope to the east of the residence. The drainfield appears to be functioning normally as a serial system with indications of normal ponding in the first trench. There was no evidence of surfacing sewage, all setbacks are being met and there is sufficient area for a complete replacement system. This authorization with the installation of an effluent filter does not guarantee the continuous or satisfactory operation of the onsite system. Should this system fail a repair permit is required and the flow characteristics will have to be evaluated and addressed at the time of system repair. 4. Deschutes County Environmental Health: OAR 333-061-0020 (154) defines a public water system as a system for the provision of water to the public for human consumption, if the system supplies water to 10 or more individuals per day at least 60 days per year. The proposal meets the criteria as a Transient Non -Community public water system. The water system requires an initial plan review and well evaluation by the Oregon Drinking Water Program. If the water well is approvable for public use, it will be added to the inventory and assigned a water system number. Routine water system survey will be conducted every 5 years and routine water quality monitoring will be needed quarterly for coliform bacteria and annually for nitrate. Fees: Plan Review - $825, Surveys every 5 yrs. - $450, Routine water testing — approx. $250/yr. On June 21, 2016, Jeff Freund, RS, with the Deschutes County Environmental Health responded to an email from Mr. Shepherd, copying Mr. Groves and Mr. Mone. It stated that he consulted with the State Drinking Water Program, which agreed that based on the intended use of weekly church services, events (up to 18) and other functions, there would be a potential use of water for more than 60 days per year. It also stated that the proposal calls for events that include up to 250 people which necessitates some level of public health protection in terms of drinking water. He advised that the use may require what would be classified as a Transient non -community water system, which has minimal requirements. Mr. Freund also stated that, if the applicant could demonstrate they would never exceed the 60 day threshold, they could be exempt from becoming a public system. 5. The following agencies did not respond or had no comments: Cloverdale Fire Department, State Fire Marshall, Deschutes County Assessor, Deschutes County Road Department, Oregon Department of Fish and Wildlife (ODFW), and Oregon Department of Agriculture. I. PUBLIC COMMENTS: The Planning Division mailed notice of the conditional use application to all property owners within 750 feet of the subject property. Central Oregon 247 -16 -000159 -SP / 161 -AD LandWatch appeared at the hearing to testify in opposition to the application and submitted written materials to the record. J. REVIEW PERIOD: The applications were submitted on March 18, 2016. The County sent an incomplete letter dated April 13, 2016. The applications were accepted as complete on April 15, 2015. The applicant agreed to toll the clock for 60 days from April 19, 2016 to June 18, 2016 and again agreed to toll the clock for the 14/14/14 day post - hearing schedule. The 150th day on which the County must take final action on this application is December 23, 2016. K. HEARINGS OFFICER: Deschutes County Hearings Officer Ken Helm presided over the open public record hearing on June 28, 2016. Due to a potential future conflict of interest, Mr. Helm recused himself on July 11, 2016 and the matter was transferred to Deschutes County Hearings Stephanie Marshall Hicks. Ms. Hicks reviewed the record and video of the open public record prior to preparing this Final Decision. L. LAND USE HISTORY: In July of 2001, the applicant's predecessor, Darlene Woods, received conditional use approval to establish a farm -related dwelling on the subject property and to site the dwelling more than 300 feet from a public or private road in the WA Zone (CU -00-65). Subsequently Ms. Woods applied to modify the conditional use application (MA -01-9) to modify her farm management plan and to move the dwelling location. The modified application was approved by an administrative decision. The approval was based in part on findings that the property was currently engaged in farm use consisting of cattle grazing, Ms. Woods' submission of a farm management plan, and her submission of a wildlife management plan, which stated, among other provisions, that human activity would be limited to the southeast corner of the plateau at the top of the property and that there would be very little vehicular usage of the access driveway. The farm dwelling approval was conditioned on implementation of the farm management plan. A Hearings Officer dismissed an appeal of the decision (A-01-15). On December 18, 2014, staff issued an administrative approval of a modification (247- 14 -000401 -MC) to the existing dwelling conditional use decision (CU -00-65/ MA -01-9). A Wildlife Management Plan (WMP) is required because the dwelling was not located near a pre-existing road or driveway in the Metolius Winter Deer Range [see DCC 18.88.060 (13)(1)]. The modification wholly removed the Wildlife Management Plan (WMP) required under the previous decision and replaced it with six conditions of approval designed to protect and enhance deer habitat on the property. This decision was appealed to the Board of County Commissioners (Board) under file number 247-14- 000454-A. The Board affirmed the decision with modifications. The Board's decision was not appealed to LUBA. In 2013, the applicant was denied conditional use approval (CU -13-13 and MA -13-3) to establish a private park on the subject property to be called "Shepherdsfield Park." The park would host weddings, wedding receptions, special events and recreational activities. Denial was based on several issues, including that the application did not include a site plan review application. On February 3, 2015, staff issued an administrative approval of a conditional permit and site plan review (247 -14 -000228 -CU 229 -SP) to establish a private park on an EFU- zoned parcel east of Sisters for the purpose of hosting weddings, wedding receptions, special events, and recreational activities. By Order 2015-011, dated February 4, 2015, 247 -16 -000159 -SP / 161 -AD the Board initiated review of this application under DCC 22.28.050 through a de novo hearing. The Board affirmed the administrative approval and included additional findings. The Board's approval was appealed to LUBA (LUBA No. 2015-034), where the decision was reversed on August 17, 2015. LUBA characterized the use of the property as "commercial wedding events," and ruled that the proposed use did not qualify as a private park because the primary use — weddings — was not a recreational activity. The primary use (or "focal event") is the ceremonial wedding, absent which guests would not be coming to the property to "recreate." On appeal to the Court of Appeals (276 Or App 282 2016), the Court affirmed LUBA's reversal on February 3, 2016, agreeing that the proposed use of hosting weddings and similar events did not qualify as a private park. The court cited the determination by the County that not all events would have a ceremony and when where is a wedding ceremony, it lasts for just a fraction of the time in which the event is held. The court also cited LandWatch's argument that the intention of people going to the property was not controlling, but that the court must consider the proposal to use the property as an event venue. The Court stated: [W]e interpret nonfarm uses listed in ORS 215.283 — which are exceptions to what is normally permitted in an EFU zone — consistently with the legislature's goal of preserving agricultural land. That is, listed nonfarm uses, "should not be expansively interpreted to encompass uses that would subvert the goal of preserving land for agricultural use." Warburton v. Harney County, 174 Or App 322, 328, 25 P.3d 978, rev den, 332 Or 559 (2001). It also noted that the legislative committees, in adopting ORS 215.283 had extensive discussions regarding the allowance of "[c]ommercial activities that are in conjunction with farm use." The Court characterized the proposed use as one in which "petitioners seek to rent out their lawn for up to 18 events per year (each involving a different group of persons), and for no other purpose." The Court further described the proposed use as including "sound systems, catering, access to the dwelling for wedding parties, and, perhaps, lawn games." It stated that "petitioners propose to establish a private park solely for use as a commercial event venue." (emphasis in original). In September 2015, the County and the applicants entered into a Voluntary Compliance Agreement ("VCA") in Case No. 247 -14 -000085 -CE, Contract No. 2015-593. Among other things the VCA acknowledges that the applicants had four remaining scheduled weddings in 2015. In light of the LUBA decision reversing the decision to grant the CUP/SP for the private park, the applicants admitted and acknowledged that each use of the property for a 2015 scheduled event constitutes a violation of DCC 18.16.020 and 18.88.040, and a Class A Violation under DCC 18.144.050. The applications agreed that they would not suffer or allow use of the property for any wedding, wedding reception or similar event that is not a 2015 Scheduled Event until and unless they obtain all necessary land use approvals for such use. 247 -16 -000159 -SP / 161 -AD III. CONCLUSIONARY FINDINGS: OREGON REVISED STATUTES A. CHAPTER 215 — COUNTY PLANNING; ZONING; HOUSING CODES 1. Section 215.441 Use of real property for religious activity; county regulation of real property used for religious activity. (1) If a church, synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship is allowed on real property under state law and rules and local zoning ordinances and regulations, a county shall allow the reasonable use of the real property for activities customarily associated with the practices of the religious activity, including worship services, religion classes, weddings, funerals, child care and meal programs, but not including private or parochial school education for prekindergarten through grade 12 or higher education. FINDING: As set forth below, under DCC 18.04.030, a "church" is defined as "an institution that has nonprofit status as a church established with the Internal Revenue Service." The evidence in the record shows the applicant is a "church" institution under the Deschutes County Code. Church uses are allowed on the subject property in the EFU zone under DCC 18.16.025(C), in conjunction with churches consistent with ORS 215.441 on non -high value farmland, as set forth below. There is no dispute that the subject property is comprised of non -high value farmland. ORS 215.283(1)(a) similarly states that churches and cemeteries in conjunction with churches may be established in any area zoned for exclusive farm use. Accordingly, I find that step one of the two-step ORS 215.441(1) analysis established by LUBA in Catholic Diocese of Baker v. Crook County, 60 Or LUBA 157 (2009), which is whether the local zoning ordinance allows a "church" on the subject property, is met. Central Oregon LandWatch ("LandWatch") argued that ORS 215.441(1) applies only to nonresidential places of worship and that, because the congregation will be meeting in a residential structure, the statute does not apply. Neither case cited by LandWatch supports this contention. Reed v. Jackson County, LUBA No. 2009-136 (2010) states that, if there is no church located on EFU-land, then there is not a church for a wedding to be "customarily associated with the practices of," such that weddings would not be allowed under ORS 215.441. LUBA rejected the application of ORS 215.441 in that case because there was no church on the property. LUBA affirmatively stated that if there is a church located on EFU-land, weddings may occur at the church under ORS 215.441. There is no discussion in the case regarding residential or nonresidential structures in which a congregation may meet. The other case cited by LandWatch, Bechtold v. Jackson County, LUBA No. 2001-187 (2002), also does not support its argument. In fact, the decision rejects the restrictive reading of "church" that LandWatch advocates: We assume for purposes of this opinion that the concept of a "church" as that term is used in ORS 215.283(1)(b) is not necessarily limited to buildings that are devoted exclusively to worship services. The legislature's decision not to include a limiting definition of the term "church" leaves open the possibility that structures 247 -16 -000159 -SP / 161 -AD 9 beyond those devoted exclusively to formal worship services might qualify as church buildings. The "residential function" referenced by LUBA in the Bechtold case referred to the proposed rectory, convent and office, which LUBA determined not to be "church" uses, but rather "residential" uses. In Catholic Diocese of Baker, LUBA observed that the words, "or other non-residential place of worship" in ORS 215.441 were the legislature's attempt to recognize that the words "church, synagogue, temple, mosque, chapel, meeting house" might not adequately describe all religions' places of worship. In other words, the phrase is an expansive one and does not limit the types of structures in which a church and its congregation may meet. Here, the Church requests the right to use the dwelling on the property for worship services, bible study, and marriage and family counseling. The fact that the structure is a residence is immaterial, as the proposed use of the property is for "religious activity." Churches are allowed outright in EFU zones under Oregon statutes and the Deschutes County Code. The Hearings Officer finds that ORS 215.441(1) applies to the proposed church in this case. Step two of the ORS 215.441(1) analysis, as established in Catholic Diocese of Baker, requires a determination of whether the wedding and reception and other outdoor uses are "activities customarily associated with the practices of the religious activity" of the church that was identified in step one. If this step is met, the associated uses shall be allowed by the County, subject to reasonable regulations referenced in ORS 215.441(2). LUBA explained that the custom of the particular place of worship dictates the scope of the protected activities. It further ruled that custom may include activities that are commonly thought of as religious activity ("worship services" and "religious classes"), but may also include other kinds of activities ("weddings, funerals, child care and meal programs"). The proposed use in this case includes worship services, religion classes, weddings, and funerals, but not child care and meal programs. This proposal does not include private or parochial school education for prekindergarten through grade 12 or higher education. LandWatch argued that associated wedding receptions proposed with the Church application do not constitute religious uses that can be approved under ORS 215.441(1). It asserted that, while wedding ceremonies may be a permitted accessory use for a church, wedding receptions are secular celebrations that cannot take on the religious nature of the ceremony that precedes it. I reject this argument based on LUBA's interpretation of the scope of allowed associated uses in Catholic Diocese v. Baker, which does not require all associated uses to be "religious" in nature. Moreover, I find that the examples of potentially associated uses set forth in ORS 215.441(1), which include weddings and funerals, among other things, are not limiting. The Legislature's failure to reference wedding receptions in the statute does not foreclose the right to host both weddings and receptions, if it is established that such uses are "customarily associated with the practices of the church itself. While I am cognizant of the determinations of LUBA and the Court of Appeals that the outdoor wedding events are "commercial events," the prior application was for a private park, and not a church. Moreover, as LUBA observed, the primary use (or "focal event") is the ceremonial wedding, absent which guests would not be coming to the property. As discussed below, however, I find that uses "associated" with a church must be incidental and subordinate to the primary proposed or existing church use, regardless of whether the associated uses are religious or non -religious in nature and regardless of whether the associated uses are allowed with or without charge. 247 -16 -000159 -SP / 161 -AD 10 The applicant argued that weddings (and related receptions) are "customarily associated with the practices of the Shepherdsfield Church, such that the uses may take place on the property under ORS 215.441(1). In Catholic Diocese of Baker, LUBA ruled that "the custom of the particular place of worship dictates the scope of the protected activities," under ORS 215.441(1). LUBA stated that under the statute, the question is not whether [the proposed associated uses] are customarily associated with the... Church or [Christian] faith in general." The question is whether the proposed associated uses are customarily located at the site of the church. Because the applicant did not establish that collocation of the uses proposed in the Catholic Diocese case is customary, LUBA ruled that the second -step of the ORS 215.441(1) analysis was not met. The proposed pastoral center was not limited to activities customarily associated with the practices of the chapel and retreat conference center, because it also included offices for ministries and other functions for the entire diocese. The evidence in this case supports a determination that weddings and receptions are and have been "customarily associated with the practices of the Church. The applicant has been officiating and providing weddings, premarital and marital counseling and memorial services on the subject property as a form of ministerial outreach to the community. The services are offered at a significantly reduced rate (nearly two-thirds less expensive) from other wedding venues in an effort to minister to those outside the church and to those with lesser means. For all the foregoing reasons, I conclude that step two of the ORS 215.441(1) analysis is satisfied. There is a second issue, which was not addressed by any party, which is whether the proposed associated wedding reception uses will be so intensive and frequent in relation to the congregational church uses that the events are not merely "associated" or accessory uses, but are instead the primary proposed use. The relative magnitude of the primary/accessory uses were not briefed by the parties. I find that a condition of approval shall be required to ensure that the associated event uses remain incidental and subordinate to the primary use of the subject property by the Shepherdsfield Church. The applicant shall submit a report to the County Department of Community Development on an annual basis showing that the number of hours of accessory uses of the property for uses associated with the Church, whether religious or non- religious, and whether for a fee or free of charge, do not exceed 25% of the total hours of the primary use of the property by the Shepherdsfield Church. For purposes of calculation, the duration of associated wedding receptions shall include all time when non-residents are on the property for reception purposes but shall exclude the duration of the wedding ceremony. The duration of primary church use activities shall be calculated as the time in which non-residents are on the property for church use of the property, but excluding any time coinciding with a wedding reception. Both the applicant and LandWatch raised arguments concerning the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc. This federal law prohibits the County from applying substantially different land use restrictions to churches than those applied to other similar land uses, and further prohibits land use regulations from creating an undue burden on the free exercise of religion. Because the Hearings Officer approves the proposed church uses at the subject property, analysis under RLUIPA is not required. (2) A county may. (a) Subject real property described in subsection (1) of this section to reasonable regulations, including site review or design review, concerning the physical characteristics of the uses authorized under subsection (1) of this section; or 247 -16 -000159 -SP / 161 -AD 11 FINDING: I find that this provision authorizes the County to require the proposed church uses to comply with the site and design review provisions of DCC Chapters 18.116 and 18.124, discussed in detail below. (b) Prohibit or restrict the use of real property by a place of worship described in subsection (1) of this section if the county rinds that the level of service of public facilities, including transportation, water supply, sewer and storm drain systems is not adequate to serve the place of worship described in subsection (1) of this section. FINDING: I find that this provision requires the applicant to demonstrate that the level of service of public facilities identified below are adequate for the proposed uses, and permits this Hearings Officer to impose mitigating conditions of approval to address any deficiencies in the levels of service of public facilities evidenced in the record. Each facility topic is addressed below. Transportation: Although the Deschutes County Transportation Planner determined in his comment letter that traffic safety issues may exist with regard to sight distance from the driveway onto Holmes Road, his comments were based on an originally alleged 200 feet of sight distance from the driveway in each direction. The applicant testified that the driveway has 1500 feet of visibility from the west and 1000 feet of visibility from the east. Intersection sight distance required by the Association of American of State Highway and Traffic Officials (AASHTO) is 610 feet. The applicant also submitted photographs, a map and video to demonstrate the adequacy of sight distance. At the hearing, the County suggested that the applicant request the County Road Department to take actual measurements of the sight distance at the property during the open record period that followed. No such information was introduced into the record. However, the evidence supports a finding that the intersection sight distance will be at least 610 feet. No prohibition or restriction of the proposed use of the subject property is required in this regard. With respect to transportation system development charges ("SDC") charges, the applicant argued that Peter Russell's SDC calculations are in error because: (1) church meetings are limited to the downstairs portion of the house, which is listed by the County as 2308 square feet, not 3000 square feet; and (2) there will not be any "p.m. peak hour trips" generated by the Church. He also argued that there is no construction, alteration, expansion or replacement of structures on the property to warrant SDCs pursuant to Resolution 2013-020. Event traffic would also occur on weekends, not during p.m. peak hour traffic. The applicant overlooks the fact that change -of -use is also considered to warrant SDCs. Per Board of County Commissioners Resolution 2013-020, SDCs "shall be determined" per the land -use categories which are specifically identified in the most recent edition of the ITE Trip Generation Manual; the SDC amount shall be determined as identified in the Methodology Report unless otherwise approved by the Director. The Resolution as amended currently sets an SDC rate of $3,852 per p.m. peak hour trip. The County bases its transportation SDCs on the type of use and the physical size of the use, which is based on the size of the building. In this instance, the area is approximately 2,300 square feet. Mr. Russell submitted evidence that the County does not base SDCs on variables that the County cannot control, which include the number of attendees, number of employees, or other similar aspects. 247 -16 -000159 -SP / 161 -AD 12 In terms of SDC calculation, the applicant has stated only the lower floor will be used for services, which is 2,308 square feet. Based on the ITE rate of 0.55 p.m. peak hour trips per 1,000 square feet, the use will be assessed for 1.3 trips (0.55 X 2.308). This results in an SDC of $5008 (1.3 X $3,852). Mr. Russell noted that an SDC is not a land use decision, but can be appealed to the Road Department Director and then the Board of County Commissioners according to Section 12 of BOCC Resolution 2013-020. The applicant is advised that SDCs must be paid within 60 days of the use being initiated or else penalties as allowed under Board Resolution 2013-020 may be imposed. I find that the level of service of this public facility is adequate to serve the place of worship as a result. Water Supply: The Deschutes County Environmental Health department determined that a permit is required for a public water system under OAR 333-061-0020(154), which is defined as a system that applies water to 10 or more individuals per day at least 60 days per year. The evidence shows that a public water system is not required at this time for the proposed church uses because the congregation does not meet more than 52 times per year on the subject property. The applicant testified that attendees of outdoor weddings and/or wedding receptions are required to bring bottled water for consumption. The Hearings Officer finds that no permit is required prior to initiation of the proposed church uses. A condition of approval shall be required directing the applicant to obtain a permit for a public water system if at any time, on-site water is required for 10 or more individuals per day for 60 days or more per year. I find that the level of service of this public facility is adequate to serve the place of worship as a result. Sewer: The Deschutes County Environmental Soils department determined that the existing system is adequate for the use and that no additional permits are required. I find that the level of service of this public facility is adequate to serve the place of worship. Storm Drain Systems: No new impervious areas are included in the proposal and no stormwater drainage problems have been identified for the existing site. I find that that any stormwater on site will continue to infiltrate to groundwater on the large, predominantly undeveloped property. The level of service of this public facility is adequate to serve the place of worship. (3) Notwithstanding any other provision of this section, a county may allow a private or parochial school for prekindergarten through grade 92 or higher education to be sited under applicable state law and rules and local zoning ordinances and regulations. FINDING: This proposal does not include private or parochial school education for pre- kindergarten through grade 12 or higher education. This criterion is inapplicable. 247 -16 -000159 -SP / 161 -AD 13 OREGON ADMINISTRATIVE RULES A. DIVISION 33 - AGRICULTURAL LAND Section 660-033-0130 - Use of real property for religious activity: county regulation of real property Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses The following requirements apply to uses specified, and as listed in the table adopted by OAR 660-033-0120. For each section of this rule, the corresponding section number is shown in the table. Where no numerical reference is indicated on the table, this rule does not specify any minimum review or approval criteria. Counties may include procedures and conditions in addition to those listed in the table, as authorized by law. FINDING: Church use is listed in the table adopted by OAR 660-033-0120 as "2,*18(a)" for "HV Farmland" and "R2" for "Other". The table adopted by OAR 660-033-0120 includes the following notations: R Use may be allowed, after required review. The use requires notice and the opportunity for a hearing. Minimum standards for uses in the table that include a numerical reference are specified in OAR 660-033-0130. Counties may prescribe additional limitations and requirements to meet local concerns. * Use not allowed. # Numerical references for specific uses shown on the table refer to the corresponding section of OAR 660-033-0130. Where no numerical reference is noted for a use on the table, this rule does not establish criteria for the use. I find that the church site and the subject property do not constitute High Value "HV" Farmland and, thus are subject to the "R2" requirement. The "R" code specifies that the use may be allowed, after required review. The use requires notice and the opportunity for a hearing. The noticed public hearing on this matter meets these requirements. The "R2" code is also a numerical reference to sections specified in OAR 660-033-0130. OAR 660-033-0130(2) requires: (2)(a) No enclosed structure with a design capacity greater than 100 people, or group of structures with a total design capacity of greater than 100 people, shall be approved in connection with the use within three miles of an urban growth boundary, unless an exception is approved pursuant to ORS 197.732 and OAR chapter 660, division 4, or unless the structure is described in a master plan adopted under the provisions of OAR chapter 660, division 34. (b) Any enclosed structures or group of enclosed structures described in subsection (a) within a tract must be separated by at least one-half mile. 247 -16 -000159 -SP / 161 -AD 14 For purposes of this section, "tract" means a tract as defined by ORS 215.010(2) that is in existence as of June 17, 2010. (c) Existing facilities wholly within a farm use zone may be maintained, enhanced or expanded on the same tract, subject to other requirements of law, but enclosed existing structures within a farm use zone within three miles of an urban growth boundary may not be expanded beyond the requirements of this rule. I find that the subject property is over 9 miles from the closest urban growth boundary (Redmond), such that the criteria in OAR 660-033-0130(2)(a) and (b) are inapplicable. TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. A. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES. Section 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18 16 038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. C. Churches and cemeteries in conjunction with churches consistent with ORS 215.441 and OAR 660-033-0130(2) on non -high value farmland. FINDING: The applicant is proposing use of the property as a church. Compliance with ORS 215.441 and OAR 660-033-0130(2) are discussed above. DCC 18.04.030 defines "church" as: "Church" means an institution that has nonprofit status as a church established with the Internal Revenue Service. The applicant has stated that the proposed church is both licensed with the State of Oregon and registered with the IRS as a 501(c)(3), meeting this definition. ORS 215.283 lists the uses permitted in exclusive farm zones in non-marginal counties, including churches. I find that there are no special provisions under DCC Section 18.16.038 or DCC Section 18.16.042 that apply to church use. Review under DCC Chapter 18.124 regarding site plan approval is applicable and relevant criteria are discussed below. While LandWatch is correct that a county has the authority to impose more restrictive conditions on the use of land for churches in EFU zones," Kola Tepee, Inc. v. Marion County, 99 Or. App. 481, 483-84 (1989), there is no support for LandWatch's contention that a church use in the County's EFU zone is a conditionally permitted use. I find that the proposed church use is permitted outright, subject to site plan review under Chapter 18.124, and may not be subjected to additional local criteria, as discussed herein and consistent with Hearings Officer Isa Taylor's decision in File No. SP -05-54 and Hearing Officer Karen Green's decision in File No. SP -10-22, citing Brentmar v. Jackson County, 321 Or 481, 496, 900 P.2d 1030 (1995). The Hearings Officer finds that use of the property for the proposed church uses is allowed outright and shall be permitted in accordance with this Decision. Furthermore, the Hearings Officer finds that the primary church use includes the following proposed activities: 247 -16 -000159 -SP / 161 -AD 15 Church functions allowed by ORS 215.441, including worship services, religion classes, weddings, and funerals. Family and marriage counseling Accessory uses, as defined in DCC 18.04.030, are allowed in association with the primary church use: "Accessory use or accessory structure" means a use or structure incidental and subordinate to the main use of the property, and located on the same lot as the main use. Accessory uses include drilling for, and utilization of, low temperature geothermal fluid in conjunction with the main use of the property. The Hearings Officer finds that the proposed non -religious commercial events, including wedding receptions, are an accessory use to the primary church use. In addition, community outreach activities, including tutoring of children with dyslexia, community drama productions with children, and children's choirs are also an accessory use to the primary church use. Testimony by the applicant at the hearing unclear whether these listed community outreach activities would take place on the same lot as the main use, or would occur when congregation members and/or Pastor Shepherd or his wife go out into the community. However, based on the applicant's testimony concerning water usage on the property, it is reasonable to conclude that the primary use of the property has so far been limited to meetings of the congregation on the property on Sundays. Accessory uses must be "incidental and subordinate to the main use of the property, and located on the same lot as the main use". The Hearings Officer finds that the proposed wedding receptions will be located on the same lot as the primary church use and will be incidental and subordinate to the church use under the condition requiring that: Beginning on January 1, 2017, and continuing on an annual basis thereafter, the applicant shall submit a report to the County Department of Community Development showing that the number of hours of accessory uses of the property for wedding reception events do not exceed 25% of the total hours of the primary use of the property by the Shepherdsfield Church. In addition, DCC 18.116.040 specifies that "An accessory use shall comply with all requirements for a principal use, except as DCC Title 18 specifically allows to the contrary..." The Hearings Officer finds that compliance of the wedding receptions with all applicable criteria is addressed throughout this Decision and no specific allowances "to the contrary" apply. 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 us, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. 247 -16 -000159 -SP / 161 -AD 16 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: No new structures are proposed and all existing structures associated with proposed use are located over 100 feet from any property line. I find that these criteria are met. 4. Section 18.16.060 Dimensional Standards E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: No new structures are proposed. This criterion is inapplicable. 5. Section 18.16.080, Stream Setbacks To permit better light, air, vision, stream pollution control, protection of fish and wildlife areas and preservation of natural scenic amenities and vistas along streams and lakes, the following setbacks shall apply. ; A. All sewage disposal installations, such as septic tanks and septic drainfields, shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high water mark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet and the County Sanitarian finds that a closer location will not endanger health, the Planning Director or Hearings Body may permit the location of these facilities closer to the stream or lake, but in no case closer than 25 feet. B. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet measured at right angles to the ordinary high water mark. FINDING: No new structures are proposed. No rivers or streams are located near the subject property. These criteria are inapplicable. Section 18.16.090, Rimrock Setback Notwithstanding the provisions of DCC 18.16.070, setbacks from rimrock shall be as provided in DCC 18.116.160 or 18.84.090, whichever is applicable. FINDING: No new structures are proposed. No "rimrock", as defined in DCC 18.04.030, exists on the subject property. This criterion is inapplicable. 247 -16 -000159 -SP / 161 -AD 17 B. CHAPTER 18.88, WILDLIFE AREA COMBINING ZONE Section 18.88.030 Uses Permitted Outright. In a zone with which the WA Zone is combined, the uses permitted outright shall be those permitted outright by the underlying zone. FINDING: The subject property is located within a WA Zone established to protect the Metolius Deer Winter Range. The proposed church use is allowed outright subject to certain provisions as discussed above, as opposed to conditionally, in the EFU zone. Accordingly, the Hearings Officer finds that the proposed church is a use permitted outright in the WA combining zone. 2. Section 18 88.040 Uses Permitted Conditionally. A. Except as provided in DCC 18.88.040(B), in a zone with which the WA Zone is combined, the conditional uses permitted shall be those permitted conditionally by the underlying zone subject to the provisions of the Comprehensive Plan, DCC 18.128 and other applicable sections of this title. B. The following uses are not permitted in that portion of the WA Zone designated as deer winter ranges, significant elk habitat or antelope range: 1. Golf course, not included in a destination resort; 2. Commercial dog kennel; 3. Church; 4. Public or private school; 5. Bed and breakfast inn; 6. Dude ranch; 7. Playground, recreation facility or community center owned and operated by a government agency or a nonprofit community organization; 8. Timeshare unit; 9. Veterinary clinic; 10. Fishing lodge. FINDING: The subject property is located within a WA Zone established to protect the Metolius Deer Winter Range. I do not agree with LandWatch's contention that the church uses are not permitted outright, because prohibition on church use in WA combining zones is specific to those zones where church use is a conditional use. In this case, the proposed church is in an EFU zone where the use is an outright permitted use subject to certain provisions as discussed above. These criteria are inapplicable. 3. Section 18.88.060, Siting Standards A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined. B. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that. 247 -16 -000159 -SP / 161 -AD 18 1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection through a different development pattern; or, 2. The siting within 300 feet of such roads or easements for vehicular access would force the dwelling to be located on irrigated land, in which case, the dwelling shall be located to provide the least possible impact on wildlife habitat considering browse, forage, cover, access to water and migration corridors, and minimizing length of new access roads and driveways; or, 3. The dwelling is set back no more than 50 feet from the edge of a driveway that existed as of August 5, 1992. FINDING: No new dwelling is included in this proposal. These criteria do not apply. 3. Section 18.88.070. Fence Standards. The following fencing provisions shall apply as a condition of approval for any new fences constructed as a part of development of a property in conjunction with a conditional use permit or site plan review. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife; 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B Exemptions: 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. FINDING: No new fencing is included as part of this proposal. This criterion is inapplicable. C. CHAPTER 18.116, SUPPLEMENTARY PROVISIONS Section 18.116.020, Clear Vision Areas. A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure, or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb or, where no curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area 247 -16 -000159 -SP / 161 -AD 19 provided all branches and foliage are removed to a height of eight feet above the grade. B. A clear vision area shall consist of a triangular area on the corner of a lot at the intersection of two streets or a street and a railroad. Two sides of the triangle are sections of the lot lines adjoining the street or railroad measured from the corner to a distance specified in DCC 18.116.020(6)(1) and (2). Where lot lines have rounded corners, the specified distance is measured from a point determined by the extension of the lot lines to a point of intersection. The third side of the triangle is the line connecting the ends of the measured sections of the street lot lines. The following measurements shall establish clear vision areas within the County. 1. In an agricultural, forestry or industrial zone, the minimum distance shall be 30 feet or at intersections including an alley, 10 feet. 2. In all other zones, the minimum distance shall be in relationship to street and road right of way widths as follows: FINDING: No new structures are proposed. The proposed church and associated church events will not impact a clear vision area of 30 feet at the intersection of two streets or a street and a railroad. The evidence shows that the approach to the subject driveway on Holmes Road has a clear vision of approximately 1000-1500 feet in both directions. 2. Section 18.116.030, Off-street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18. FINDING: The applicant has demonstrated, through plans and evidence, including but not limited to Exhibit H and I of the burden of proof, how the off street parking and loading requirements are to be met and that property is and will be available for exclusive use as off- street parking and loading. The Hearings Officer finds that a condition of approval shall be required such that subsequent use of the property for which this permit is issued shall require the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18, limiting guests for events to 250 persons. This criterion is met. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise 247 -16 -000159 -SP / 161 -AD 20 Right -of -Way Width Clear Vision 80 feet or more 20 feet 60 feet 30 feet 50 feet and less 40 feet FINDING: No new structures are proposed. The proposed church and associated church events will not impact a clear vision area of 30 feet at the intersection of two streets or a street and a railroad. The evidence shows that the approach to the subject driveway on Holmes Road has a clear vision of approximately 1000-1500 feet in both directions. 2. Section 18.116.030, Off-street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18. FINDING: The applicant has demonstrated, through plans and evidence, including but not limited to Exhibit H and I of the burden of proof, how the off street parking and loading requirements are to be met and that property is and will be available for exclusive use as off- street parking and loading. The Hearings Officer finds that a condition of approval shall be required such that subsequent use of the property for which this permit is issued shall require the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18, limiting guests for events to 250 persons. This criterion is met. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise 247 -16 -000159 -SP / 161 -AD 20 by truck or similar vehicle, shall provide off-street loading space on the basis of minimum requirements as follows: FINDING: This proposal does not include a "use for which a building is erected or structurally altered." The Hearings Officer finds this criterion is inapplicable. C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as set forth in DCC 18.116.030 for all uses in all zoning districts. Such off-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building existing on the effective date of DCC Title 18 is changed. FINDING: The Board of County Commissioners confirmed the administrative decision findings for this criterion, quoted below, for this criterion in 247 -14 -000229 -SP: DCC 18.116.030(C) first requires that, "Off-street parking spaces shall be provided and maintained as set forth in DCC 18.116.030 for all uses in all zoning districts." Staff finds that provision of parking spaces is plainly required under this section. The second portion of this criterion states, "Such off-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building existing on the effective date of DCC Title 18 is changed." Staff finds that the second sentence of the criterion specifies the timing for the provision of parking for certain specified uses, but does not negate the requirement that parking be "provided and maintained as set forth in DCC 18.116.030 for all uses". The Hearings Officer finds that a condition of approval shall be required such that all required parking shall be in place prior to initiation of the use. This criterion is met. D. Number of Spaces Required. Off-street parking shall be provided as follows: 1. Residential. Use Requirements One, two and three family dwellings 2 spaces per dwelling unit 4. Places Of Public Assembly. Use Requirements Church 1 space per 4 seats or 8 feet of bench length in the main auditorium or 1 space for each 50 sq. ft. of floor area used for assembly 9. Other uses not specifically listed above shall be provided with adequate parking as required by the Planning Director or Hearings Body. The above list shall be used as a guide for determining requirements for said other uses. 247 -16 -000159 -SP / 161 -AD 21 FINDING: Use of the existing dwelling unit as a single-family residence requires 2 spaces. The applicant has proposed a maximum indoor church use of 25 persons. While the indoor church is not constrained by bench length or auditorium size, the Hearings Officer finds that the requirement in DCC 18.116.030.D.4 for one parking space per 4 seats supports a determination that a minimum of 7 parking spaces is required to serve a 25 person church use. The Board of County Commissioners concluded in 247 -14 -000229 -SP that 18 weddings per year on the subject property with up to 250 guests required permanent developed parking spaces for that use. The Hearings Officer finds that the proposed church event use in these applications is similar in scope to the proposed private park event use previously proposed and likewise requires permanent parking. I find that the church event use falls under DCC 18.116.030(D)(9), "other uses not specifically listed". Following the Board decision in 247 -14 -000229 -SP, the listed uses should be used "as a guide for determining requirements for said other uses." Specifically, that this use is similar to the use "church", in that church use typically includes weddings. DCC 18.116.030(D)(4) requires 1 space per 4 seats for church use. As such, the Hearings Officer finds that a minimum of 63 spaces (250 / 4 = 62.5) should be provided for the church event use, plus two spaces for residential use of the dwelling, for a total of 65 spaces. The Hearings Officer finds that 65 spaces will be adequate to address church event use and would be more than adequate to address the regular church service and residential use of the property. This criterion is met. E. General Provisions. Off -Street Parking. 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off-street parking shall be the sum of requirements of the several uses computed separately. FINDING: The total requirement for off-street parking equals the sum of the requirements of the several uses (church use including events and residential) computed separately. This criterion is met. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: No joint use facilities are proposed. This criterion is inapplicable. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the 247 -16 -000159 -SP / 161 -AD 22 building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off -premise parking arrangements rests upon the applicant. FINDING: All parking is located on the subject parcel. This criterion is met. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. FINDING: The Hearings Officer finds that a condition of approval shall be required such that required parking spaces shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. This criterion is met. 5. Parking, Front Yard. Required parking and loading spaces for multi -family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the La Pine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. FINDING: No parking in a required front yard is proposed. This criterion is inapplicable. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off-street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDING: The proposed parking is located over 400 feet from any property line. Evidence in the record shows that that vegetation and topography will effectively screen the parking area from any adjacent residential use. This criterion is met. 2. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. 247 -16 -000159 -SP / 161 -AD 23 FINDING: No adjoining property is in a residential zone. This criterion does not apply. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. FINDING: Evidence shows that parking spaces are located and designed to prevent the need to back vehicles into a street or right-of-way. This criterion is met. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that: a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems; or b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; or C. The subject use will be in a Rural Industrial Zone or an Industrial District in an unincorporated community and dust control measures will occur on a continuous basis which will mitigate any adverse impacts on surrounding properties. FINDING: The applicant has requested an exception to the paving required under this criterion. The applicant has placed 3/4 minus gravel along the driveway that accesses the parking area from Holmes Road, as required by a condition of approval in File No. 247 -14 -000228 -CU 229 - SP, with respect to the proposed private park. 3/4 minus gravel constitutes an all weather surface in areas used for standing of vehicles. Red cinder has been placed on top of the gravel to improve the appearance. The applicant also proposes to use 3/4 minus gravel in the parking area following permit approval and prior to any event related parking. Use of 3/4 minus gravel for the parking area is intended to eliminate dust from vehicles using the site. Any storm water drainage from the driveway and parking area will drain to adjacent pervious surfaces and will be contained on-site. The evidence shows that the parking area and access driveway are located far from adjacent property and stormwater drainage will continue to be directed to groundwater infiltration in natural and landscaped open space. No evidence was presented that proposed surfacing would create dust problems for neighboring properties. A condition of approval requiring the applicant to complete and maintain a 3/4 minus gravel base on the access driveway and parking areas shall be imposed. An exception to the paved surface requirement is approved under subsection (b) above. This criterion is met. 5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. FINDING: Table 1 at the end of DCC Chapter 18.116 requires, at a minimum, a twenty -four -foot - wide surface for two-way traffic and 12 -foot -wide surface for one-way traffic. The applicant has proposed a minimum of a thirty -two -foot -wide surface for two-way traffic and 16 -foot -wide surface for one-way traffic. I find that the proposed parking area includes travel surfaces of sufficient width for all vehicular turning and maneuvering with the imposition of a condition of approval 247 -16 -000159 -SP / 161 -AD 24 requiring the applicant to complete and maintain access aisles at a minimum of a 32 -foot wide surface for two-way traffic and a 16 -foot wide surface for 1 -way traffic. This criterion is met. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. FINDING: No service drives are proposed. This criterion is inapplicable. 7. Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDING: No service drives are proposed. This criterion is inapplicable. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDING: The proposed parking is located over 400 feet from any property line or a street right of way. Therefore, it is impossible for a motor vehicle to extend over an adjacent property line or street right of way. Accordingly, evidence in the record supports a finding that no curbs or bumper rails are required to prevent a motor vehicle from extending over an adjacent property line or a street right of way. This criterion is inapplicable. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension "D," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding 20 stalls, alternate rows may be designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A 247 -16 -000159 -SP / 161 -AD 25 compact stall shall be eight feet in width and 17 feet in length with appropriate aisle width. FINDING: The applicant has proposed nine -foot -wide by twenty -foot -deep head -in parking spaces. As set forth above, The applicant has proposed a minimum of a thirty -two -foot -wide surface for two-way traffic and 16 -foot -wide surface for one-way traffic. I find that the proposed spaces comply with County standards for stalls and aisles as set forth Table 1. A condition of approval requiring the applicant to complete and maintain all required parking spaces with dimensions of 9 -feet wide by 20 -feet deep. This criterion is met. 3. Section 18.116.031. Bicycle Parking. New development and any construction, renovation or alteration of an existing use requiring a site plan review under DCC Title 18 for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of DCC 18.116.031. A. Number and Type of Bicycle Parking Spaces Required. 1. General Minimum Standard. a. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. C. When the proposed use is located outside of an unincorporated community, a destination resort, and a rural commercial zone, exceptions to the bicycle parking standards may be authorized by the Planning Director or Hearings Body if the applicant demonstrates one or more of the following: i The proposed use is in a location accessed by roads with no bikeways and bicycle use by customers or employees is unlikely. ii. The proposed use generates less than 50 vehicle trips per day. iii. No existing buildings on the site will accommodate bicycle parking and no new buildings are proposed iv. The size, weight, or dimensions of the goods sold at the site makes transporting them by bicycle impractical or unlikely. V. The use of the site requires equipment that makes it unlikely that a bicycle would be used to access the site. Representative examples would include, but not be limited to, paintball parks, golf courses, shooting ranges, etc. FINDING: The proposed church is located outside of an unincorporated community, a destination resort, or a rural commercial zone. I find that an exception to the bicycle parking standards is warranted since the use of the site (church use and church events), requires equipment (formal attire, catering equipment) that makes it unlikely that a bicycle would be used to access the site. I conclude that an exception to the bicycle parking is appropriate for this use. 247 -16 -000159 -SP / 161 -AD 26 C. CHAPTER 18.124, SITE PLAN REVIEW Section 18.124.030. Approval Required. A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following: 1. All conditional use permits where a site plan is a condition of approval; 2. Multiple family dwellings with more than three units; 3. All commercial uses that require parking facilities; 4. All industrial uses; 5. All other uses that serve the general public or that otherwise require parking facilities, including, but not limited to, landfills, schools, utility facilities, churches, community buildings, cemeteries, mausoleums, crematories, airports, parks and recreation facilities and livestock sales yards; and 6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining Zones (SM/A). FINDING: The site is proposed for use as a church that requires parking facilities. I find that the provisions of this chapter apply. 2. Section 18.124.060. Approval Criteria. Approval of a site plan shall be based on the following criteria: A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: No new structures or earthmoving are included in the proposal. The record shows that topography, vegetation and distance will either completely or significantly buffer the outdoor church uses visually from nearby properties. I find that the proposal minimizes visual impacts and preserves views and topographical features. IMPACTS ON SURROUNDING PROPERTIES The subject property is surrounded by properties zoned EFU in both public and private ownership. To the north is an approximately 540 -acre property engaged in cattle grazing and developed with a guest ranch (Long Hollow Ranch). Other land to the north along Holmes Road is generally engaged in farm use. To the south is a large undeveloped, publicly -owned tract owned and managed by the US Bureau of Land Management (BLM) that consists of juniper woodland. Also to the south is an approximately 80 -acre parcel engaged in farm use and developed with a single-family dwelling. Adjacent to and east of the subject property is a 77 - acre parcel engaged in farm use and developed with a dwelling. Adjacent to the west are two 247 -16 -000159 -SP / 161 -AD 27 40 -acre parcels, each of which is developed with a single-family dwelling. Further to the west are two approximately 100 -acre parcels engaged in farm use. As set forth above, I find that the proposed church and church event use would be visually screened by distance, topography, and vegetation so as not be disharmonious with surrounding farm, open space, recreational, or residential use. However, the proposed use of amplified sound could be disharmonious with surrounding residential and recreational use. The applicant has proposed a limit of 30 decibels from amplified sound as measured at any property line. In addition, the applicant has proposed that any use of amplified sound will end by 10 p.m. I find that these limitations are sufficient to prevent off-site noise impacts, as 30 decibels is the typical background noise level found in quiet rural environments. A condition of approval will be required to ensure compliance with this criterion. Consistent with the analysis provided in 247 -14 -000228 -CU and 247 -14 -000229 -SP I find that there is no evidence of adverse impact to off-site livestock from the use of amplified music at the site. No evidence of any adverse impacts of the proposed uses to the off-site natural environment, topography, or visual resources has been identified in the record. IMPACTS ON THE NATURAL ENVIRONMENT The natural environment on the property consists of juniper scrub woodland in the mapped Tumalo Winter Deer Range. During review of the private park proposal under 247 -14 -000228 - CU and 229 -SP, it was established that outdoor gatherings of up to 250 persons would potentially adversely impact the Tumalo Winter Deer Range, identified by the County as a Goal 5 resource. In that decision, outdoor events were limited by a condition of approval requiring outdoor events to occur outside the period identified by ODFW for winter deer forage. Specifically, a condition required that the private park would only be open to event participants one weekend day per week beginning on May 15 of each year and ending on October 15. The applicant has proposed limiting outdoor church events to mid-May through mid-October, presumably in recognition of the Tumalo Winter Deer Range forage period. I find that the same condition of approval shall be required for the proposed outdoor church uses in this application. Destruction or conversion of natural habitat on the subject property would also potentially be disharmonious with the natural environment of the property, as it could adversely impact forage areas in the Tumalo Winter Deer Range. No church related development or activities are proposed in areas currently in natural vegetation. I find that a condition of approval precluding conversion or clearing of naturally vegetated areas for church use shall be required to ensure a harmonious relationship between the proposal and the natural environment. Recommended findings regarding the Wildlife Management Plan are included in the Existing Development section below, as this plan was required in association with the farm related dwelling. EXISTING DEVELOPMENT Existing development of the property consists of residential and agricultural use. Existing structures include a dwelling, barn, and gazebo. The existing farm -related dwelling was approved under County File Nos. MA-01-9/CU-00-65 and included a Farm Management Plan (FMP) and Wildlife Management Plan (WMP). 247 -16 -000159 -SP / 161 -AD 28 Residential Use The church and church event uses will only occur at the discretion of the applicants/residents, are of limited duration, and involve no significant changes to the residence. Therefore, I find that the proposed church use would not preclude or significantly interfere with residential use of the property. Agricultural Use Prior Approvals The existing farm -related dwelling was approved in conjunction with a Farm Management Plan (FMP). The prior approval (MA-01-9/CU-00-65), granted to the applicant's predecessor, required that the property be "...currently employed in farm use, as evidenced by a farm management plan...". In CU-00-65/MA-01-9 the following findings were made regarding farm use of the property: The applicant has proposed to modify the submitted application for a conditional use permit (CU -00-65) to allow the establishment of a farm -related dwelling on an approximate 216 acre, unirrigated, non -high value parcel. The applicant proposes to modify CU -00-65 by proposing a new homesite location and modifying the farm management plan. The modified application indicates that the property currently supports 24 head of cattle, has perimeter fencing and watering troughs. The applicant has submitted financial documents, photographs, soils and irrigation maps, a site plan and burden of proof statement in support of this application, which are incorporated herein by reference. According to the modified farm management plan and business plan, and verified by staff during a visit to the property on May 31, 2001, the subject property currently supports 24 head of cattle, has perimeter fencing along the boundary of the subject property, watering troughs for livestock that are filled with water that according to the applicant will be hauled onto the property until such time a well is installed and electricity provided to the property. The applicant also indicates that they intend to obtain water rights from Squaw Creek Irrigation District. In addition, the applicant indicates that they propose to incorporate approximately 30 hogs into the livestock operation following occupancy of the proposed farm dwelling. The applicant's plot plan depicts the location of areas that are used for livestock grazing. Based on the above findings and the applicant's burden of proof statement, staff finds this criterion to be satisfied. The site plan review criterion requires that the proposed development relate harmoniously to existing development. The agricultural operations contemplated in the FMP no longer exist on the subject property and have been replaced by the current farm operations described below. As such, the Hearings Officer finds there is no requirement under this criterion that the church uses be harmonious with such operations. 247 -16 -000159 -SP / 161 -AD 29 Current Farm Use At the time of the Board's decision in 247 -14 -000229 -SP, the agricultural use of the property included approximately two acres used to raise poultry for-profit and small-scale livestock grazing (limited to a single ewe at the time of application). The applicant presented evidence that, as per their Farm Management Plan, they currently own and raise 10 cattle as well as poultry for eggs. The applicant purchased the cattle as bottle calves in spring of 2015; they are now over 1000 pounds. The cattle graze on irrigated acreage on the subject property (4.6 acres of irrigation water rights) and will be sold for profit in fall 2016. Photographic evidence shows that the cattle are penned and hayed near the barn in the winter and briefly grazed on the 210 acres outside of the house and lawn area in the spring, and on the pasture area 500 feet from the house and lawn area in the summer. The house and two -acre adjoining lawn area and parking are set aside from farm use. The Hearings Officer finds that these farm uses are or will be conducted outside of the proposed church use area and that they would not be precluded by or significantly interfered with by the proposed church uses. Future Farm Use At the time of the Board's decision in 247 -14 -000229 -SP, the applicant indicated that 3.5 acres of Three Sisters Irrigation District water rights were being obtained and would be applied to the existing lawn area (0.9 acres) and a new fenced grazing area in the southeast corner of the property. The grazing area would encompass approximately 17 acres that would include 2.5 acres of future irrigation. No fewer than 10 head of cattle will be kept in this grazing area during the months of park operation. During winter months, the cattle would be penned and hayed in an area adjacent to the applicant's barn. During the spring, the cattle would graze other areas of the property, but not the dwelling area. The applicant also had proposed an indoor/outdoor penned chicken operation on the property, to be located within the existing barn area. The applicant did not provide any evidence of future farm use that would differ from the current farm use. A condition of approval requiring any future farm uses to be conducted outside of the proposed church use area shall be required. Wildlife Management Plan The Wildlife Management Plan (WMP) approved under (MA-01-9/CU-00-65) and modified under 247 -14 -000401 -MC includes required actions on the part of the landowner as part of the dwelling location approval. The WMP conditions, as modified, primarily focus on required activities located outside the proposed church use area of the property, with the exclusion of condition #3 of 247 -14 -000401 - MC. This condition requires: 3. A vegetative buffer shall be maintained by the property owner at all times around the existing house to provide visual screening and forage opportunities for deer. This buffer shall consist of various screening trees, including Junipers and Aspen, various shrubs, garden and lawn, all located within 500 feet of the dwelling and as configured in the record 247 -16 -000159 -SP / 161 -AD 30 figure labeled "Google Maps Aerial Photo - 2014". This vegetation shall be maintained, kept alive, or be replaced in-kind within one year in the event of disease or death of the vegetation. There is nothing in record to support a finding that the present proposal precludes compliance with the WMP. I agree with the applicant's observation that weddings and other outdoor church events will be limited to the summer months, such that impacts to the Metolius Winter Range, which contemplates the presence of deer during winter months, would be minimal and not result in a violation of the WMP. The Hearings Officer finds that the following condition of approval will ensure that church use of the property is not disharmonious with the residential use of the property, which includes compliance with the WMP: The land owner shall comply with the Wildlife Management Plan (WMP) for the subject property. Where the final WMP for the subject property includes required actions that conflict with church operations, the required actions of that WMP shall take precedence and the operations of the church use shall be curtailed to the extent necessary to allow full compliance with the WMP. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDING: No new structures or topographical changes are included in this proposal. The existing structures and lawn area were developed in association with residential use of the property and are not part of this proposal. I find that the previously -cleared, approximately 1 - acre parking area preserves the existing landscape to the greatest extent possible, considering development constraints (required parking needed to accommodate the proposed use). No removal of vegetation outside the church use area is proposed for the church use. This criterion is met. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: Transitions from public to private spaces occur at the driveway entering the property, the long vegetated drive to the park site, and in the existing dwelling, which will be partially used in support of the private park. As set forth below, the Hearings Officer finds this criterion is met. Safety — Structural The Deschutes County Building Division comment, quoted above and incorporated herein by reference, identifies required electrical, fire safety, and structural requirements. The Hearings Officer finds that a condition of approval shall be required that directs the applicant to provide written documentation from the Building Division that the on-site structures and electrical systems are suitable for the proposed uses, prior to initiation of the uses. Safety- Wastewater The Deschutes County Environmental Soils division noted in its public comment quoted above and incorporated herein by reference that the septic system has been authorized for this use or 247 -16 -000159 -SP / 161 -AD 31 essentially the same use under septic authorization notice 247-15-002329 for the proposed private park in File Nos. 247 -14 -000 -228 -CU and 229 -SP. The proposal for the church is not significantly different from the septic authorization; therefore, the septic system should be adequate to serve the proposal. The Hearings Officer finds that a similar condition of approval as included in File Nos. 247 -14 -000 -228 -CU and 229 -SP shall be included to require portable toilets to be provided for events at a rate of one toilet for every 50-100 persons attending an event. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDING: The County Building Division will notify the applicant of any accessibility requirements. A condition of approval requiring compliance with any required accessibility requirements shall be included. This criterion is met. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDING: The site plan provides a single point of access to the site via the driveway from Holmes Road. Interior circulation includes a driveway circling the lawn area and accessing the barn, park vehicle parking area, and existing dwelling. Given the significant setback between the church and church event use area, property lines, and adjacent uses, there is no evidence there will be any conflict with off-site uses regarding access and circulation. The Hearings Officer finds that the proposed site plan will result in access and circulation that is harmonious with on- and off-site development. This criterion is met. F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets or surface and subsurface water quality. FINDING: The evidence shows that storm water drainage will continue to be directed to undeveloped juniper scrub woodland. The Hearings Officer finds this will prevent adverse impacts on neighboring properties, streets or surface and subsurface water quality. This criterion is met. G. Areas, structures and facilities for storage, machinery and equipment services (mail, refuse, utility wires, and the like), loading and parking and similar accessory structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: No new structures or facilities regulated under this criterion are proposed. The parking area will be screened by existing vegetation, minimizing adverse impacts on the site and neighboring properties. This criterion is met. H. All aboveground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. 247 -16 -000159 -SP / 161 -AD 32 FINDING: No new aboveground utility installations are proposed. This criterion is inapplicable. 1. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.) FINDING: The proposal's compliance with specific zoning standards for the site is addressed above. This criterion is met. J. All exterior lighting shall be shielded so that direct light does not project off-site. FINDING: The Hearings Officer finds that a condition of approval shall require that all exterior lighting shall be shielded so that direct light does not project off-site. This criterion is met. K. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of- way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: As discussed above, the Deschutes Transportation Planner's comment on the application was based on information that intersection sight distance at the driveway's connection with Holmes Road was only 200 feet. The evidence presented at hearing shows that the 610 foot sight distance standard will be met. I find that there are no transportation - related impacts that exist. This criterion is met. 2. Section 18.124.070. Required Minimum Standards. B. Required Landscaped Areas. 1. The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval. a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. 247 -16 -000159 -SP / 161 -AD 33 FINDING: The proposed church use is not a multi -family, commercial', or industrial development and is not subject to the provisions of 18.124.070(13). These criteria are inapplicable. 2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. FINDING: The 65 required parking spaces require 1,625 square feet of landscaping under this criterion. I find that the proposed parking is wholly surrounded with natural landscaping2 and will comply with this criterion. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. C. A landscaped strip separating a parking or loading area from a street shall contain: L Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. ii. Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. iii. Vegetative ground cover. FINDING: The proposed parking area is located over 400 feet from any property line and is separated from those lot lines by extensive natural and introduced landscaping. The Hearings Officer finds these criteria are met. d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than rive feet. f Provision shall be made for watering planting areas where such care is required. g Required landscaping shall be continuously maintained and kept alive and attractive. DCC 18.04.030 - "Commercial use" means the use of land primarily for the retail sale of products or services, including offices. It does not include factories, warehouses, freight terminals or wholesale distribution centers. 2 DCC 18.04.030 - "Landscaping" means trees, grass, bushes, shrubs, flowers, and garden areas, and incidental arrangements of fountains, patios, decks, street furniture and ornamental concrete or stonework and artificial plants, bushes or flowers. 247 -16 -000159 -SP / 161 -AD 34 h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDING: I find that the proposed parking area is wholly surrounded with natural landscaping and will comply with these criteria. C. Non -motorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDING: As discussed above, no bicycle parking is required for this use under DCC 18.116.031. This criterion is inapplicable. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi -family residential developments through the clustering of buildings, construction of hard surface pedestrian walkways, and similar techniques. FINDING: The proposed church is not a new commercial, office, or multi -family residential development. This criterion does not apply. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi family, public or park use. C. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkway must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of rive percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings 247 -16 -000159 -SP / 161 -AD 35 FINDING: Staff stated, and I agree, that subsections (b) through (e) apply to any use subject to site plan review. The applicant did not show any pedestrian walkways associated with outdoor church uses, or the indoor church use of the residence. In the decision in CU -14-7, the Hearings Officer found that, "...these criteria have limited application to the applicants' proposal inasmuch as there is only one commercial use proposed for the subject property, and there will be a single building entrance for that use. Therefore, I find there is no need to apply these criteria to require particular pedestrian circulation or walkways on the property." This Hearings Officer finds that that there is no need for the applicant to provide pedestrian walkways as: 1) there is only a single building entrance, 2) it is unlikely that anyone would access the site on foot, and 3) there are no existing or planned transit facilities in the area. TITLE 22 OF THE DESCHUTES COUNTY CODE, DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE A. CHAPTER 22.20, REVIEW OF LAND USE ACTION APPLICATIONS Section 22.20.015 Code Enforcement and Land Use A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not. 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions and/or property line adjustments; 3. Issue a building permit. B. As part of the application process, the applicant shall certify. 1. That to the best of the applicant's knowledge, the property in question, including any prior development phases of the property, is currently in compliance with both the Deschutes County Code and any prior land use approvals for the development of the property; or 2. That the application is for the purpose of bringing the property into compliance with the Deschutes County land use regulations and/or prior land use approvals. C. A violation means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal or through the review process of the current application, or through an acknowledgement by the alleged violator in a signed voluntary compliance agreement C VCA"). D. A permit or other approval, including building permit applications, may be authorized if. 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement; 2. It is necessary to protect the public health or safety; 3. It is for work related to and within a valid easement over, on, or under the affected property; or 247 -16 -000159 -SP / 161 -AD 36 4. It is for emergency repairs to make a structure habitable or a road or bridge to bear traffic. FINDING: LandWatch argues that the County may not approve the subject applications because the property is in violation of a condition of approval on which approval of the farm dwelling is predicated. The existing farm -related dwelling on the property, approved under County File Nos. MA -01-9 and CU -00-65 is subject to a condition of approval that originally required implementation of a Farm Management Plan ("FMP") and a Wildlife Management Plan. The FMP was established in July 2001 when the applicant's predecessor in interest, Darlene Woods, received conditional use approval to establish a farm -related dwelling on the subject property. Subsequently, Ms. Woods requested and obtained approval to modify the FMP and move the dwelling location to move the homesite away from the middle of the property to stay out of the wildlife corridor in File No. 247 -14 -000401 -MC. County File Nos. MA -01-9 and CU - 00 -65 included the following condition of approval: Approval is based upon the farm management plan and the plot plan. Any substantial alteration of the farm management plan or the plot plan shall require submittal of a new land use permit. DCC 22.20.015(A) precludes issuance of land use decisions when a property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions, only where a "violation" as defined by DCC 22.20.015(C) is or has been found. No prior decision by the County or other tribunal has found a violation of MA -01-9 and CU -00-65 Condition of Approval #1 ("COAV). Although there is a voluntary compliance agreement ("VCA") for the property, it concerns the unpermitted weddings/receptions and not COA1. However, compliance with COA1 has been raised "through the review process of the current application". Specifically, a "violation" may be found if a "substantial alteration of the farm management plan" has occurred. The specifications of the CU-00-65/MA-01-9 approved farm management plan are quoted above under 18.124.060(A). ORS 215.283(1)(f) allows dwellings customarily provided in conjunction with farm use on EFU lands. Farm use is defined in ORS 215.203(2)(a) as the current employment of land for the primary purpose of obtaining a profit in money from farming activities, for example, by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock. Approval of the farm dwelling was based on satisfaction of ORS 215.203(2) and DCC 18.16.067(5)(iii), such that the farm dwelling was to be occupied by a person or persons who will be principally engaged in the farm use of the land. LandWatch points out that the applicant swore an affidavit to the Oregon Tax Court on October 13, 2014 that the subject property has never been used for "farm uses." The evidence shows that there is now a small poultry operation and a herd of 10 cows, which graze 209 dryland acres and 4.6 irrigated acres of the 216 -acre parcel. The Church raises cattle and chickens, but no hogs. LandWatch argues that such operation does not require a farmer to be on the property 24 hours a day, 7 days a week, but did not present evidence to support such a claim. I agree with LandWatch that, under Section 22.36.050 of the code, farm dwelling approval runs with the land and the approval and its attendant conditions are transferred to the applicant. The question before the Hearings Officer is whether there has been a "substantial alteration" of the farm management plan, such that a new land use permit is required. See File No. MA -01-9, 247 -16 -000159 -SP / 161 -AD 37 CU -00-65, condition of approval no. 4. 1 find that a property owner has reasonable latitude under an FMP to change the types and numbers of livestock to be raised on the property. Although the FMP has been altered via a change in farming operations, and there has been a period of time during which farming operations were not taking place on the subject property, there is no evidence that the applicant is currently out of compliance with the conditions of approval for the farm dwelling on the property. A condition of approval will be required to direct the applicant to continue existing farm operations on the property in compliance with the terms and conditions of prior permits including any lawful modifications thereof. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the Applicant's applications for an Administrative Determination and Site Plan Review for a Church in the Exclusive Farm Use/Lower Bridge Subzone (EFU-LB), within a Wildlife Area (WA) Combining Zone, subject to the following conditions of approval: 1. Approval is based on the submitted burden of proof, supplemental materials, and written and oral testimony. Any substantial changes to the approved plan will require a new application. 2. The applicant shall obtain all necessary permits from the Deschutes County Environmental Soils, Environmental Health, and Building Safety Divisions prior to initiation of the use. Specifically, the applicant shall provide written documentation from Deschutes County Environmental Soils, Environmental Health, and Building Safety Divisions to Deschutes County Planning Division that all church structures and facilities are adequate for the proposed outdoor church uses and comply with all applicable regulations, prior to initiation of the use. 3. Off-street parking areas used to fulfill the requirements of DCC Title 18 shall not be used for loading and unloading operations except during the periods of the day when not required to take care of parking needs. 4. All areas used for standing and maneuvering of vehicles shall be paved or shall consist of an all weather base of %- gravel, surfaces adequately maintained for all weather use and maintained in a matter which will not create dust problems for neighboring properties. 5. The applicant shall complete and maintain access aisles at a minimum of a 32 -foot wide surface for 2 -way traffic and a 16 -foot wide surface for 1 -way traffic. 6. All exterior lighting shall be shielded so that direct light does not project off-site. 7. Subsequent use of the property for which this permit is issued is conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18. 8. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or use. 247 -16 -000159 -SP / 161 -AD 38 9. 65 spaces of required parking shall be in place prior to initiation of the use. Required parking spaces shall be 9 -feet wide by 20 -feet deep. 10. The property shall only be open to event participants one weekend day per 7 -day period, beginning on May 15 of each year and ending on October 15, and shall not exceed 18 days per calendar year. 11. Weekend day shall mean only a Saturday or Sunday. 12. A limit of no more than 250 guests per event shall be enforced by the applicant. 13. Any outdoor use of the property by non-residents shall count as an "event." 14. Set-up and take down of all temporary structures and facilities shall occur no earlier than one business day prior to the events and activities and no later than one business day after the events between 7:00 a.m. and 10:00 p.m. 15. The applicant is required to provide documentation from the Deschutes County Environmental Soils Division that the septic system is adequate for the proposed outdoor church events, prior to the initiation of the use. 16. At a minimum, one portable toilet shall be provided per 100 attendees (or fraction thereof) at outdoor events. 17. Applicants and/or their permittees and invitees shall comply at all times with the requirements of DCC Chapter 8.08, noise control. 18. The applicant shall obtain a permit for a public water system if at any time, on-site water is required for 10 or more individuals per day for 60 days or more per year. 19. The applicant shall maintain its non-profit status with the IRS to qualify as a church. 20. Beginning on January 1, 2017, and continuing on an annual basis thereafter, the applicant shall submit a report to the County Department of Community Development showing that the number of hours of accessory uses of the property for wedding reception events do not exceed 25% of the total hours of the primary use of the property by the Shepherdsfield Church. 21. If the County Building Division determines accessibility requirements are applicable to the proposed use, applicant shall comply with any such required accessibility requirements within the time directed by the County Building Division. 22. The applicant shall comply with the current final Wildlife Management Plan (WMP) for the subject property. Where the final WMP for the subject property includes required actions that conflict spatially or temporally with the outdoor church events, the required actions of that WMP shall take precedence and the operations of the outdoor church events shall be curtailed to the extent necessary to allow full compliance with the WMP. Where the final WMP for the subject property includes required actions and the WMP does not specify a completion date or timeline, those actions shall be completed prior to initiation of the outdoor church event use. Where 247 -16 -000159 -SP / 161 -AD 39 the final WMP for the subject property includes ongoing required actions, the outdoor church events shall only take place while in compliance with those required ongoing actions. 23. The applicant shall continue existing farm operations on the property in compliance with the terms and conditions of prior permits without substantial alteration of such operations unless the prior permits are lawfully modified 24. Any future farm uses shall be conducted outside of the proposed church use area. 25. Conversion or clearing of naturally vegetated areas for church use is prohibited to ensure a harmonious relationship between the proposal and the natural environment. 26. Church and church event noise shall be limited to 30 decibels from amplified sound as measured at any property line. In addition, any use of amplified sound shall end by 10 p.m. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. Stephanie Marshall Hicks, Hearings Officer Dated this 1s' day of September, 2016 Mailed this 15' day of September, 2016 247 -16 -000159 -SP / 161 -AD 40 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, APRIL 23, 2018 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend This meeting is open to the public. To watch it online, visit www. deschutes. orq/meetingss. Business Meetings are usually streamed live online and video recorded. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. 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 1. Consideration of Resolution No. 2018-009, Annual CAFFA Assessment and Taxation Grant 2. Consideration of Board Signature of Order No. 2018-027, to Dispose of Surplus Property Board of Commissioners Business Meeting Agenda Monday, April 23, 2018 Page 1 of 3 3. Consideration of Board Signature on Document No. 2018-195, Lease Agreement, DCSO Livestock Rescue Ranch 4. Consideration of Board Signature of Letter Appointing Michelle Cermak to the Investment Advisory Committee ACTION ITEMS 5. Presentation of Natural Resource Land Stewardship Award - Ed Keith, Forester 6. Consideration of Board Signature of Document No. 2018-219, Agreement Related to Construction, Operation and Maintenance of the Quail Road Extension Project - Chris Doty, Public Works Director 7. Consideration of Board Signature of Document No. 2018-220, Deschutes County - Jefferson County IGA Regarding Alternative Access to Crooked River Ranch - Chris Doty, Public Works Director 8. PUBLIC HEARING: Appeal of an Administrative Approval for a Church - William Groves, Senior 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. Board of Commissioners Business Meeting Agenda Monday, April 23, 2018 Page 2 of 3 ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www. deschutes. or Imeetinacalendar Meeting dates and times are subject to change. All meetings take place in the Allen Room at 1300 NW Wall St. Bend unless otherwise indicated. If you have question, please call (541) 388-6572. Board of Commissioners Business Meeting Agenda Monday, April 23, 2018 Page 3 of 3 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, APRIL 23, 2018 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend This meeting is open to the public. To watch it online, visit www.deschutes.org/meetings. Business Meetings are usually streamed live online and video recorded. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. 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 1. Consideration of Resolution No. 2018-009, Annual CAFFA Assessment and Taxation Grant 2. Consideration of Board Signature of Order No. 2018-027, to Dispose of Surplus Property Board of Commissioners Business Meeting Agenda Monday, April 23, 2018 Page 1 of 3 3. Consideration of Board Signature on Document No. 2018-195, Lease Agreement, DCSO Livestock Rescue Ranch 4. Consideration of Board Signature of Letter Appointing Michelle Cermak to the Investment Advisory Committee ACTION ITEMS 5. Presentation of Natural Resource Land Stewardship Award - Ed Keith, Forester 6. Consideration of Board Signature of Document No. 2018-219, Agreement Related to Construction, Operation and Maintenance of the Quail Road Extension Project - Chris Doty, Public Works Director 7. Consideration of Board Signature of Document No. 2018-220, Deschutes County - Jefferson County IGA Regarding Alternative Access to Crooked River Ranch - Chris Doty, Public Works Director 8. PUBLIC HEARING: Appeal of an Administrative Approval for a Church - William Groves, Senior 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. Board of Commissioners Business Meeting Agenda Monday, April 23, 2018 Page 2 of 3 IT�1�16111a - ZJ Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.orp/meetingcalendar Meeting dates and times are subject to change. All meetings take place in the Allen Room at 1300 NW Wall St. Bend unless otherwise indicated. If you have question, please call (541) 388-6572. Board of Commissioners Business Meeting Agenda Monday, April 23, 2018 Page 3 of 3 0 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 April 23, 2018 DATE: April 18, 2018 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: PUBLIC HEARING: Appeal of an Administrative Approval for a Church RECOMMENDATION & ACTION REQUESTED: Conduct the Public Hearing. BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners (BOCC) is an appeal filed by applicant John Shepherd and opponent Central Oregon LandWatch. File Nos. 247 -17 -000573 -AD and 574 - SP (247-18-000179-A and 182-A). The appeal is submitted in response to a February 9, 2018 administrative approval for a proposed church and associated church events in the Exclusive Farm use zone. FISCAL IMPLICATIONS: none ATTENDANCE: Will Groves, Legal Packet Pg. 41 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: BOCC hearing of the Applicant's appeal of an administrative decision. File Nos. 247 -17 -000573 -AD and 574 -SP (247-18-000179-A and 182-A) Before the Board of County Commissioners (BOCC) is an appeal filed by applicant John Shepherd and opponent Central Oregon LandWatch. The appeal is submitted in response to a February 9, 2018 administrative approval for a proposed church and associated church events in the Exclusive Farm use zone. The BOCC agreed to hear this matter de novo on February 14, 2018, under Order No. 2018-011 A public hearing is scheduled for April 23, 2018. BACKGROUND Both the property and the applicant's efforts to establish a church and associated events on the property have an extensive land use history. CU-00-65/MA-01-9/A-01-15 (Farm Dwelling) - Conditional use approval to establish a farm - related dwelling on the subject property and to site the dwelling more than 300 feet from a public or private road in the WA Zone (CU -00-65). This approval included a Wildlife and Farm Management Plan. CU -13-13/ MA -13-3 (Private Park) — Hearings Officer denial of conditional use approval to establish a private park on the subject property to be called "Shepherdsfield Park." The park would host weddings, wedding receptions, special events and recreational activities. Denial was based on several issues, including that the application did not include a site plan review application. 247 -14 -000401 -MC and 454-A (Modification of the Wildlife Management Plan) - The modification wholly removed the Wildlife Management Plan (WMP) required under the previous Farm Dwelling decision and replaced it with six conditions of approval designed to protect and enhance deer habitat on the property. 247 -14 -000228 -CU and 229 -SP (Private Park) — The applicant applied again for a second land use permit to establish a private park. Ultimately, the Court of Appeals (276 Or App 282 2016) affirmed LUBA's reversal of the County approval. The Court concluded that hosting weddings and similar events did not qualify as a private park. The court cited the determination by the County that not all events would have a ceremony and when there is a wedding ceremony, it would last for just a fraction of the time in which the event is held. Packet Pg. 42 8.a 0 247 -16 -000159 -SP and 161 -AD (Church and Church Events) — The applicant tried again for a M land use permit allowing a church on the subject property. LUBA reversed the Hearings Officer T decision approving the use. LUBA found that the proposed church is a prohibited use in the r Wildlife Area Combining Zone that governs the subject property. LUBA also found that le intervenor's arguments regarding the Religious Land Use and Institutionalized Persons Act N (RLUIPA) were undeveloped. The Oregon Court of Appeals affirmed without opinion (A164877). z Following the Court's decision, the County initiated a text amendment to amending the LL Comprehensive Plan and Deschutes County Code (DCC) Chapter 18.88 to permit churches in the Wildlife Area Combining Zone for several reasons, including ensuring compliance with RLUIPA. The Board adopted amendments on January 3, 2018, which is the basis for the present application.' M PROPOSAL The applicants are seeking permission to use their home for church services. The maximum attendance at any one service will be 25 persons. The church also plans to use the existing 1.6 - acre lawn area and gazebo near the church/residence for weddings and church functions allowed by ORS 215.441. The applicants are agree to impose a limit on events to 30 per calendar year.2 The events will conclude no later than 10:00 p.m. A limit of 250 event guests will be enforced by the applicants. The church also plans to use a 1.5 acre graveled parking area near the church/residence for guest parking. 111. APPEAL The administrative approval was appealed by the applicant John Shepherd and opponent Central Oregon LandWatch. Central Oregon LandWatch issues on appeal include: The applicants are not applying on behalf of the church as church officers, but on their own behalf as private citizens. The use that is allowed under DCC 18.16.025(C) is for churches to operate as churches on farmland: the code does not permit individuals to operate a for-profit event venue in the guise of a church on farmland. An application to operate a church on farmland in an existing structure should come from the church, not from a private individual on his own behalf. • The church related to this matter is not a landowner in Deschutes County and is not the applicant. The applicants are private individuals, one of which is an important employee of a 501(c)(3) church. County and state code preclude events not associated with the church. IRS code precludes proceeds of events accruing to an important employee, a practice that will result in the loss of the 501(c)(3) status that is the basis for the approval. • The decision misinterprets DCC 18.16.025 (C), which allows "churches and cemeteries in conjunction with churches consistent with ORS 215.441 and OAR 660-033-0130(2) on high value farmland." ORS 215.441 provides for the reasonable use of real property for activities customarily associated with the practices of religious activity at nonresidential 1 Central Oregon LandWatch appealed Ordinance No. 2018-002 to LUBA. A decision is expected later this spring or early summer. 2 This limitation is a change from the administrative approval and is self-imposed by the applicant to limit infrastructure impacts. -2- Packet Pg. 43 8.a 0 places of worship. ORS 215.441 and DCC 18.16.025 do not apply to the farm dwelling A residence of the applicants. See Reed v. Jackson County, LUBA No. 2009-136 (2010) n and Bechtold v Jackson County, 42 Or LUBA 204, 211 (2002). The proposed use of the property is properly characterized as a principal use for N commercial events. The proposed use for commercial events is on a much larger scale c than the associated church in terms of income and numbers of people. The County cannot Z interpret its code to re -characterize the use as accessory to the church. U_ • The administrative decision did not note that the list of uses prohibited in winter range relied upon in this decision is not acknowledged but is under appeal to the Land Use Board of Appeals. • Under DCC 22.20.15, additional land use approvals for the property must wait until the property comes into compliance with conditions of approval the County has already issued. The applicant is in violation of the farm management plan that was required for the dwelling. Applicant issues on appeal include: • Condition C limits "events" to the period of time between May 15th and Oct 15th. An "event" is broadly defined in condition O as "any outdoor use of the property by non- residents". Thus, condition C imposes a "seasonality" on religious freedom, something the Commissioners specifically decided not to impose. There is no legal basis for this restriction either in County code or State law. Condition L reiterates the seasonal restrictions and adds a frequency restriction. Again, there is no legal basis for such a restriction, either in County code or state law. The state allows churches as a "use permitted outright", just like farming or ranching. The Commissioners debated and agreed to add no restrictions on church use. Furthermore, RLUIPA requires equal access and since similar restrictions are not imposed on similar uses in Deschutes County EFU, they may not be imposed here either. • Condition M is unnecessary in that it defines "weekend day" as part of the restriction of condition L. Since religious exercise should not be limited to weekends, this condition should be removed. • Condition P addresses the setup and take down of temporary structures. While it remains the applicants intention and practice to complete any wedding setup the day before or the day of the wedding and any cleanup the day of or immediately following the wedding, there is no legal reason that this condition should be imposed. Staff notes that the applicant provided a slight revision to the proposed operating characteristics of the church in response to a meeting with staff in an email dated March 16, 2018 (attached). IV. SECTION 22.20.040 AND THE 150 -DAY CLOCK The 150th day for the County to take final action on this application is currently June 22, 2018 (DCC Section 22.20.040), due to a 165 day toll of the 150 -day clock by the applicant. -3- Packet Pg. 44 8.a 0 Q Attachments: M ti 1. Shepherd Email on operating characteristics dated March 16, 2018. 2. Full Record to Date (Will be attached to the Hearing Agenda Packet only) Electronic Record available at: P:\CDD\Shepherd 2018\Record N ui 0 z m Lj- -4- Packet Pg. 45 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, APRIL 18, 2018 Allen Conference Room - Deschutes Services Building, 2ND Floor — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. Consideration of Central Oregon Quality Health Alliance (COQHA) Grant - Kathleen Meehan Coop, District Attorney's Office 2. Consideration of an Appeal of a Hearings Officer Denial for a Plan Amendment and Zone Change from Surface Mining to Residential - Cynthia Smidt, Associate Planner 3. Hearing Preparation for Shepherd Church - William Groves, Senior Planner COMMISSIONER'S UPDATES EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Board of Commissioners Work Session Agenda Wednesday, April 18, 2018 Page 1 of 2 OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.orq/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, April 18, 2018 Page 2 of 2 I ES C-0 BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 1:30 PM WEDNESDAY, April 18, 2018 ALLEN CONFERENCE ROOM Present were Coi-missioners Tammy Bar-rey and Anthony DeBone. Cor missioner Henderson was absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; Tarr i io George, Risk Management Adn inistra:ive Support Specialist, Chris Ogren, Administrative Intern; and Sharon Keith, Board Executive Assistant. Nc representatives of the media were .n attendance. CALL TO ORDER: Chair DeBone called the meeting to order at 1:30 p.m. ACTION ITEMS 1. Consideration of Central Oregon Quality Health Alliance (COQHA) Grant Kathleen Meehan Coop noted the District Attorney's Office has received notification they have been awarded the grant for the Clean Slate program and is here to request approval to accept the funding. County Administrator Anderson mentioned the District Attorney has asked for additional hours for Ms. Coop's job coverage for the program and asked if clarification of the funding and grant program could be presented during the budget hearings. PAGE 1 OF 4 BANEY Move approval DEBONE Second VOTE: BANEY: Yes HENDERSON: Absent, excused DEBONE: Chair votes yes. Motion Carried 2. Consideration an Appeal of a Hearings Officer Denial for a Plan Amendment and Zone Change from Surface Mining to Residential Community Development Department staff Cynthia Smidt and Peter Russell presented this issue. The appeals concern Tumalo Irrigation District (TID) plan amendment zone change (from surface mining to residential) application. The hearings officer approved most of the application except the Transportation Plan. Appeals were received on behalf of both Central Oregon LanclWatch and TID. Mr. Russell described the Transportation Plan, and the basis for addressing the Plan in pending applications. Regarding this application, staff did not analyze impacts associated with conditional uses such as cluster developments. TID's appeal requests a limited de novo review specific to TPR issues. TID is flexible with the clock. Bill Martin Road goes across this property which needs to be noted. Commissioner Baney is in favor of hearing the full appeal de novo; Commissioner DeBone is also in support. BANEY: Move approval of Order No. 2018-024 DEBONE: Second VOTE: BANEY: Yes HENDERSON: Absent, excused DEBONE: Chair votes yes. Motion Carried PAGE 2 OF 4 3. Hearing Preparation for Shepherd Church This item of the agenda was audio recorded. Community Development Department staff Will Groves reported that Mr. Shepherd submitted this application subsequent to the recent wildlife combining zone test amendment. The applicant is seeking to use the residence for church services and a portion of the adjacent lawn area for weddings and other church functions. Mr. Shepherd has agreed to a limit of 30 events per year. The applicant is john Shepherd. Central Oregon LanclWatch believes the applicant is applying not as a church but as an individual. Commissioner Baney inquired if this is marketed through church activities or commercial activity and requested clarity on that. Mr. Groves stated Central Oregon LanclWatch sees this as a residential property and it is not appropriate use. Concerns are this is a commercial property and not a church. Other items to consider: the text amendment is pending at LUBA; impact, if any, of the previous farm management plan. The public hearing is scheduled for Monday April 23, 2018. Mr. Groves will convey the time expectations to the applicant and appellant. Commissioners asked if there any thought on perhaps delaying this appeal until after the LUBA decision. Will noted that Mr. Shepherd prefers to proceed presently and not wait on the LUBA decision. COMMISSIONERS UPDATES: • Commissioner Baney will be attending the Habitat for Humanity panel discussion on affordable housing on Friday. She will attend the transportation meetings in Bandon tomorrow. • County Administrator Anderson is meeting with the Sunriver Service District tomorrow. EXECUTIVE SESSION: At the time of 2:08 p.m., the Board met under ORS 192.660 (2) (h) Litigation. The Board came out of Executive Session at 3:05 p.m. PAGE 3OF4 OTHER ITEMS: None were presented Being no further items to come before the Board, the meetingovas adjour-r,ed at 3�05 p,rn,. DAT ED this, Day Of 2018 for the De3&oteS County Board of Commissioners. /J � RECORDING SECRE PAGE 4OF4 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, APRIL 18, 2018 Allen Conference Room - Deschutes Services Building, 2ND Floor —1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. Consideration of Central Oregon Quality Health Alliance (COQHA) Grant - Kathleen Meehan Coop, District Attorney's Office 2. Consideration of an Appeal of a Hearings Officer Denial for a Plan Amendment and Zone Change from Surface Mining to Residential - Cynthia Smidt, Associate Planner 3. Hearing Preparation for Shepherd Church - William Groves, Senior Planner COMMISSIONER'S UPDATES EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Board of Commissioners Work Session Agenda Wednesday, April 18, 2018 Page 1 of 2 OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.or_ /g meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, April 18, 2018 Page 2 of 2 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of April 18, 2018 DATE: April 13, 2018 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: Hearing Preparation for Shepherd Church ATTENDANCE: Will Groves SUMMARY: Before the Board of County Commissioners (BOCC) is an appeal filed by applicant John Shepherd and opponent Central Oregon LandWatch. The appeal is submitted in response to a February 9, 2018 administrative approval for a proposed church and associated church events in the Exclusive Farm use zone. The BOCC agreed to hear this matter de novo on February 14, 2018, under Order No. 2018-011. A public hearing is scheduled for April 23, 2018. Packet Pg. 76 3.a William Groves From: John Shepherd <shepherdsfield@gmail.com> Sent: Friday, March 16, 2018 11:09 AM To: William Groves Subject: Agreed upon conditions for church permit Follow Up Flag: Follow up Flag Status: Completed c 0 N Thanks for running the meeting this morning, Will. I think it went well. So, I'm willing to limit the number of outdoor gathering to 30 one day events per year, which constitutes 8% of co the days in a year, far below the 50% threshold for building and sanitation. 0 I'm also willing to have my domestic water system inspected and approved and will begin work with Jeff Freund ASAP. L I think all the other concerns were addressed and resolved. Is it possible to let me review your revised list of conditions before they become final? Specifically, I believe 10 that conditions C, L, M and P need to be either removed or revised. And you can add the condition about the domestic water being tested and approved. s co One more question: I want to submit written testimony and exhibits to the Commissioners to answer COLW's charges before the April 23rd hearing. When is the deadline for written submissions? Thanks, John Shepherd rrD?- 11 Sllc�l2eL�ield Packet Pg. 77 DATE: TO: FROM: RE: MEMORANDUM April 10, 2018 Board of County Commissioners Will Groves, Senior Planner BOCC hearing of the Applicant's appeal of an administrative decision. File Nos. 247 -17 -000573 -AD and 574 -SP (247-18-000179-A and 182-A) Before the Board of County Commissioners (BOCC) is an appeal filed by applicant John Shepherd and opponent Central Oregon LandWatch. The appeal is submitted in response to a February 9, 2018 administrative approval for a proposed church and associated church events in the Exclusive Farm use zone. The BOCC agreed to hear this matter de novo on February 14, 2018, under Order No. 2018-011 A public hearing is scheduled for April 23, 2018. I. BACKGROUND Both the property and the applicant's efforts to establish a church and associated events on the property have an extensive land use history. CU-00-65/MA-01-9/A-01-15 (Farm Dwelling) - Conditional use approval to establish a farm - related dwelling on the subject property and to site the dwelling more than 300 feet from a public or private road in the WA Zone (CU -00-65). This approval included a Wildlife and Farm Management Plan. CU -13-13/ MA -13-3 (Private Park) — Hearings Officer denial of conditional use approval to establish a private park on the subject property to be called "Shepherdsfield Park." The park would host weddings, wedding receptions, special events and recreational activities. Denial was based on several issues, including that the application did not include a site plan review application. 247 -14 -000401 -MC and 454-A (Modification of the Wildlife Management Plan) - The modification wholly removed the Wildlife Management Plan (WMP) required under the previous Farm Dwelling decision and replaced it with six conditions of approval designed to protect and enhance deer habitat on the property. 247 -14 -000228 -CU and 229 -SP (Private Park) — The applicant applied again for a second land use permit to establish a private park. Ultimately, the Court of Appeals (276 Or App 282 2016) affirmed LUBA's reversal of the County approval. The Court concluded that hosting weddings and similar events did not qualify as a private park. The court cited the determination by the County that not all events would have a ceremony and when there is a wedding ceremony, it would last for just a fraction of the time in which the event is held. 3.b Packet Pg. 78 3.b 247 -16 -000159 -SP and 161 -AD (Church and Church Events) — The applicant tried again for a land use permit allowing a church on the subject property. LUBA reversed the Hearings Officer decision approving the use. LUBA found that the proposed church is a prohibited use in the Wildlife Area Combining Zone that governs the subject property. LUBA also found that intervenor's arguments regarding the Religious Land Use and Institutionalized Persons Act (RLUIPA) were undeveloped. The Oregon Court of Appeals affirmed without opinion (A164877). Following the Court's decision, the County initiated a text amendment to amending the Comprehensive Plan and Deschutes County Code (DCC) Chapter 18.88 to permit churches in the Wildlife Area Combining Zone for several reasons, including ensuring compliance with RLUI PA. The Board adopted amendments on January 3, 2018, which is the basis for the present application.' 11. PROPOSAL The applicants are seeking permission to use their home for church services. The maximum attendance at any one service will be 25 persons. The church also plans to use the existing 1.6 - acre lawn area and gazebo near the church/residence for weddings and church functions allowed by ORS 215.441. The applicants are agree to impose a limit on events to 30 per calendar year.2 The events will conclude no later than 10:00 p.m. A limit of 250 event guests will be enforced by the applicants. The church also plans to use a 1.5 acre graveled parking area near the church/residence for guest parking. 111. APPEAL The administrative approval was appealed by the applicant John Shepherd and opponent Central Oregon LandWatch. Central Oregon LandWatch issues on appeal include: • The applicants are not applying on behalf of the church as church officers, but on their own behalf as private citizens. The use that is allowed under DCC 18.16.025(C) is for churches to operate as churches on farmland: the code does not permit individuals to operate a for-profit event venue in the guise of a church on farmland. An application to operate a church on farmland in an existing structure should come from the church, not from a private individual on his own behalf. • The church related to this matter is not a landowner in Deschutes County and is not the applicant. The applicants are private individuals, one of which is an important employee of a 501(c)(3) church. County and state code preclude events not associated with the church. IRS code precludes proceeds of events accruing to an important employee, a practice that will result in the loss of the 501(c)(3) status that is the basis for the approval. • The decision misinterprets DCC 18.16.025 (C), which allows "churches and cemeteries in conjunction with churches consistent with ORS 215.441 and OAR 660-033-0130(2) on high value farmland." ORS 215.441 provides for the reasonable use of real property for activities customarily associated with the practices of religious activity at nonresidential 1 Central Oregon LandWatch appealed Ordinance No. 2018-002 to LUBA. A decision is expected later this spring or early summer. 2 This limitation is a change from the administrative approval and is self-imposed by the applicant to limit infrastructure impacts. -2- Packet Pg. 79 3.b places of worship. ORS 215.441 and DCC 18.16.025 do not apply to the farm dwelling residence of the applicants. See Reed v. Jackson County, LUBA No. 2009-136 (2010) and Bechtold v Jackson County, 42 Or LUBA 204, 211 (2002). • The proposed use of the property is properly characterized as a principal use for commercial events. The proposed use for commercial events is on a much larger scale than the associated church in terms of income and numbers of people. The County cannot interpret its code to re -characterize the use as accessory to the church. • The administrative decision did not note that the list of uses prohibited in winter range relied upon in this decision is not acknowledged but is under appeal to the Land Use Board of Appeals. • Under DCC 22.20.15, additional land use approvals for the property must wait until the property comes into compliance with conditions of approval the County has already issued. The applicant is in violation of the farm management plan that was required for the dwelling. Applicant issues on appeal include: • Condition C limits "events" to the period of time between May 15th and Oct 15th. An "event" is broadly defined in condition O as "any outdoor use of the property by non- residents". Thus, condition C imposes a "seasonality" on religious freedom, something the Commissioners specifically decided not to impose. There is no legal basis for this restriction either in County code or State law. Condition L reiterates the seasonal restrictions and adds a frequency restriction. Again, there is no legal basis for such a restriction, either in County code or state law. The state allows churches as a "use permitted outright", just like farming or ranching. The Commissioners debated and agreed to add no restrictions on church use. Furthermore, RLUIPA requires equal access and since similar restrictions are not imposed on similar uses in Deschutes County EFU, they may not be imposed here either. Condition M is unnecessary in that it defines "weekend day" as part of the restriction of condition L. Since religious exercise should not be limited to weekends, this condition should be removed. • Condition P addresses the setup and take down of temporary structures. While it remains the applicants intention and practice to complete any wedding setup the day before or the day of the wedding and any cleanup the day of or immediately following the wedding, there is no legal reason that this condition should be imposed. Staff notes that the applicant provided a slight revision to the proposed operating characteristics of the church in response to a meeting with staff in an email dated March 16, 2018 (attached). IV. SECTION 22.20.040 AND THE 150 -DAY CLOCK The 150th day for the County to take final action on this application is currently June 22, 2018. (DCC Section 22.20.040), due to a 165 day toll of the 150 -day clock by the applicant. -3- Packet P. 8 3.b Attachments: 1. Shepherd Email on operating characteristics dated March 16, 2018. 2. Full Record to Date (Will be attached to the Hearing Agenda Packet only) Electronic Record available at: P:\CDD\Shepherd 2018\Record -4- Packet Pg. 81 PUBLIC HEALTH DIVISION Drinking Water Services i Kate Brown, Governor April 17, 2018 John Shepherd SHEPHERDSFIELD 71120 Holmes Road Sisters, OR 97759 Re: New Water System SHEPHERDSFIELD - OR4106271 Dear John Shepherd, r.: e -, alt -h 800 NE Oregon Street #640 Portland OR 97232-2162 Phone 971-673-0405 Fax 971-673-0694 971-673-0372-TTY-Nonvoice Your water system, named SHEPHERDSFIELD, has been added to the Oregon Drinking Water Services (DWS) inventory of Public Water Systems (PWS) as a State Regulated (NP) water system. Your Public Water System ID number is OR4106271. Please use this ID number in all communications involving your water system. Please be sure that both the water system name and water system number are on any water quality reports or correspondence. Water quality testing results may be submitted one of the following three ways: • Fax the reports to (971) 673-0694 For faxed data, please include a cover sheet with the # of pages including the cover, your name, and your phone number. • Email the reports to: dwp.dmce@state.or.us • Mail the reports to: Water Quality Reports P.O. Box 14350 Portland, OR 97293-0350 You may submit general correspondence to: Drinking Water Services PO Box 14450 Portland, OR 97293-0450 For more information about Drinking Water Services, visit www.healthoregon.org/dwp. You can find information about your water system's sample results, monitoring schedules, and contact information by clicking the Data Online blue box at the top of the page. Search Data Online by either your water system name or ID number. This letter is informative only and does not constitute plan review approval. Please contact the Plan Review Assistant at 971-673-0408 for status of plans currently in plan review. Please be advised that most water systems undergo a water system survey every three to five years. There is a fee for the survey. In addition, all public water systems are required to have a written coliform sampling plan, operation and maintenance manual and emergency reponse plan. Please direct any further questions to your regulating agency of Deschutes Co. Environmental Health at 541-322-7400. Sincerely, The Drinking Water Program cc: Michelle Byrd, OHA/DWS Jeff Freund, Deschutes Co. Environmental Health