2018-362-Minutes for Meeting June 27,2018 Recorded 8/31/2018ES
BOARD OF
fCOMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-6570
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Recorded in Deschutes County CJ2018-362
Nancy Blankenship County Clerk
Cornrrissioners'.Journal 08/31/2018 3:13:21 PM
_ 2018-362
FOR RECORDING STAMP ONLY
WEDNESDAY, June 27, 2018 ALLEN CONFERENCE ROOM
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; Tami Jo George, Administrative Specialist, took minutes and recorded the session. No identified
representatives of the media were in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 1:30 p.m. This Work
Session was audio recorded in its entirety.
ACTION ITEMS
1. Certified Community Behavioral Health Clinic (CCBHC) Quarterly Update,
Calendar Year 2018, Quarter 1
Health Services Staff: Daniel Emerson, Management Analyst; Tyler Nass,
Management Analyst; Shannon Vandegriff, Systems Performance Program
Manager; Kristin Gyford, Behavioral Health Specialist II, Veterans' Specialist;
Janice Garceau, Behavioral Health Outpatient Services Program Manager;
David Inbody, Administrative Services Deputy Director, Karen Tamminga,
Supervisor
Health Services team provided status report on CCBHC. Commissioner Baney
asked about barriers to the program. Ms. Gyford explained new programs
BOCC WORK SESSION JUNE 27, 2018 PAGE 1 OF 8
require a certain amount of groundwork to build trust which is best
accomplished by a presence in the community. Ms. Gyford described a six
month timeline during which she met with various groups to discuss the
County's program and what it can offer. Ms. Gyford felt another barrier was
getting processes in place and implemented; she feels this has been
accomplished, things are going well, referrals have increased and future
numbers should bear this out. Ms. Gyford also stated she and her team worked
to establish relationships and partner with other agencies that serve veterans.
This has, in turn, helped them understand what and where gaps are between
Veterans Administration (VA) and Vets Center who are limited on services or
may require veterans to travel out of the area and face a long wait for services.
Commissioner Henderson asked if County is reaching out in both directions -
existing veterans as well as veterans recently discharged. Ms. Gyford stated
she participates in groups such as Band of Brothers to help make everyone
with veterans are reached. Ms. Garceau stated generally that the veterans seen
by clinicians in this area are some of most complex with multiple issues and
clinicians need to be trained to address variety of issues. At this point all 15
clinicians have received training to work with veterans throughout the County.
The VA does not have any outpatient services for veterans in this area and the
County's program has been able to fill that gap.
Commissioner Henderson observed the first few quarters of the program did
not show steady increase of veterans being served but in the spring there has
been increase; what is the capacity of veterans that can be served? Ms. Garceau
explained veterans can't simply walk in for services, they must have a VA
approved choice referral before being seen by County staff. This caused a delay
in providing services as staff discussed, within the department, and with the VA
how to offer services without jeopardizing payment. Ms. Garceau now expects
a continued increase aided by downsizing of the VA. Staff feel the County fills a
niche by providing some services, such as Eye Movement Desensitization and
Reprocessing (EMDR), which cannot be provided by the VA but can be provided
by County staff. County staff will provide services to anyone who needs them
though there is some anxiety regarding VA downsize as the County's program
cannot completely fill this gap.
Commissioner Baney asked if programs created can continue if funding for
CCBHC is not renewed past the two year pilot program. Ms. Garceau feels
systems would remain in place and Behavioral Health would continue to be
BOCC WORK SESSION JUNE 27, 2018 PAGE 2 OF 8
choice provider though staff would be smaller and the Department would
evaluate and prioritize cases. Commissioner Baney asked if the billable side
was being built to cover costs. Ms. Garceau stated Department does not
recover all of its costs from VA insurance and If CCBHC were discontinued
another funding source would need to be identified to help fund services.
Commissioner Baney stated she remains optimistic and expects the program
to continue but advised Staff to be prepared should it not. Ms. Garceau stated
that some services are covered by standard insurance and Staff is considering
optional plans should the program not continue to be funded.
Commissioner Henderson also shared concerns about over committing by
adding services that cannot be maintained without CCBHC funding. Ms. Gyford
stated a careful explanation of CCBHC benefits is shared with the community
and clients are aware of other places to seek services should CCBHC be
discontinued.
Mr. Nass reviewed and explained financial and data tracking spreadsheets, a
copy of which is a part of this record, and the team answered Board questions.
Commissioner Baney asked how referrals are handled and is there a gap in
referrals for services. Ms. Garceau stated there is no gap on adult side and staff
work hard to not duplicate services. Clinicians provide screening and then work
to create a treatment plan. Commissioner Baney asked if the process is being
replicated for children and Health replied it is. Historically Child and family
issues have been referred to another provider, Rimrock Trails, and that needs
to change. Ms. Garceau stated that while Rimrock is a competent provider it
cannot always provide the degree of complex care services needed. Staff is
developing a protocol/plan around adolescent mental disorders which will be
rolled out within next 30 days.
Commissioner Baney asked if there once had been a program for children. Ms.
Karen Tamminga head of Adult Outpatient services stated the County has long
provided adolescent services with 15 clinicians and 20-25 weekly groups
however the community at large doesn't seem to be aware of these services.
Commissioner Henderson asked for clarification on difference in Medicaid
versus subsidized; subsidized individuals do not have insurance and are
offered services with a sliding scale.
BOCC WORK SESSION JUNE 27, 2018 PAGE 3 OF 8
Commissioner Baney asked if there was any tracking of suicide attempts or
rates. Ms. Garceau stated the Department does track suicide at county level
and team has official role of tracking both clients and non -clients. There is an
internal process of incident reporting for and strong collaboration between
departments and community. Ms. Garceau highlighted three main projects to
address this issue: Project Connect which provides training for post attempts,
Zero Suicide - a grant has been submitted to fund a focus on fine tuning
clinician and community practices around prevention, and Clinician Vision
which develops in-house practices for documentation, evidence based training
and identifying clear risk factors. Staff hope these efforts will help reduce
suicides and suicide attempts however studies have shown the best approach
is to intervene at the primary care level using depression screening to identify
individuals who may be at risk.
Mr. Nass reviewed cancellation figures and the tracking process. Cancellations
are higher than desired and part of the reason may be cancellation fee charges
are not allowed. Mr. Inbody pointed out they do get 80% back within a week so
despite high cancellations the client does tend to reschedule. Total revenue
has gone up due to increase in client visits and as of March (2018) net revenue
was $5.6 million. Mr. Inbody stated $2.9 was projected and higher number is
attributed to increase in productivity and finding other ways to bill. Mr. Nass
explained budget freezing has put FTE positions on hold. Mr. Inbody stated
initially there were 28 positions and the budget process reduced the number
to 21.5. Commissioner Henderson asked if permission was needed from
CCHBC to have fewer positions and Mr. Inbody responded that was not
required and 87% percent of open positions are filled. Mr. Nass explained
reporting metrics and felt year one of the program was positive. By December
(2018) feedback from CCHBC should be available and the Department can see
how it compares to other organizations in the CCBHC program.
Commissioner Henderson asked if CCBHC might add a metric for drug
screening in addition to alcohol and tobacco. Ms. Garceau stated that while
CCBHC did not include that metric clinicians screen all clients; alcohol abuse
seems to be the most wide spread affliction. Mr. Inbody stated the grant to
CCBHC is being submitted and a decision should be available by September.
County Administrator Anderson stated he and Commissioner Henderson had
met with Health staff to go over list of requested positions and staff agreed to
BOCC WORK SESSION JUNE 27, 2018 PAGE 4 OF 8
wait on some of the open positions. Administrator Anderson asked
Commissioner DeBone and Baney if they too wanted to review the list.
Commissioner Baney stated that if Dr. Conway was in disagreement she would
want to know his position. Administrator Anderson indicated all were in
agreement. Commissioner Henderson explained that he had wanted to review
the list in detail to better understand the requests and is in agreement with
backfilling a position that has been vacated. His concern was if staff were being
added beyond what was approved at Budget Committee. Commissioner
Henderson further stated he felt the matrix was being followed and it wasn't
clear to him if team members added would indeed earn more than the cost of
the position. Since the decision on continued funding from CCBHC will be
known in September (2018) it makes sense to wait and see if those funds will
continue to be available. Commissioner Baney asked if any of the positions
frozen were grant funded and Commissioner Henderson indicated they were
not. Chair DeBone asked Administrator Anderson and Commissioner
Henderson to proceed and provide updates as appropriate.
OTHER ITEMS:
• Follow-up Discussion as requested from this mornings Business Meeting
Regarding the PUBLIC HEARING: Consideration of Signature of Document
No. 2018-480, Outdoor Mass Gathering Permit for OAS Bigstock 2018
At the request of the Board, Isabelle Liu, Community Development, presented
the Board with amendments to the Outdoor Mass Gathering Permit.
HENDERSON: Move approval of Board signature
BAN EY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
ACTION ITEMS Continued:
BOCC WORK SESSION JUNE 27, 2018 PAGE 5 OF 8
2. Preparation for Shepherd Church Deliberation
Chair DeBone stated audio is being recorded (the entire meeting was audio
recorded). William Groves, Senior Planner, and Adam Smith, Assistant Legal
Counsel, presented a memo and matrix to assist the Board in preparations for
deliberations on Monday, July 2, 2018 and stated final argument was not included
with packet. Applicant's final argument confirms applicant is no longer requesting
permission for camping and rehearsals dinners and have reverted to the original
plan submitted to the County. Counsel Smith noted this is an important concession.
The applicant has elected to go forward with the application arguing that Religious
Land Use and Institutionalized Persons act (RLUIPA) provides a basis for approval.
Counsel Smith advised the Board RLUIPA may play a strong role in the decision and
might mean Board should approve the application to avoid litigation. Staff
recommends approval of the permit with parameters outlined on page 3 of the
memo which is part of this record. Staff reviewed the matrix.
Commissioner Baney stated her challenge is 'chicken or the egg' scenario as while
Shepherdsfield has nonprofit status as a church who is the applicant and who is
benefiting and should that matter. Shepherdsfield marketing materials provided do
not mention a Church.
Commissioner Henderson felt though the Church is not required to be the applicant
he would like it to be a condition of approval which would eliminate the ability of the
applicant to go back through the entire process again as part of appeal. Though
arguments describe the Shepherd's as having a commercial venture this isn't clear to
him as they seem to take a charitable approach to offering services and charging less
than market rate fees. He, too, had noted it was not named as a church in marketing
materials.
Mr. Groves replied staff has recommended condition of non-profit entity only and
the Church must maintaining its 501(c) (3) status. Staff has been unable to determine
if funds had been routed through the non-profit Church and the Church is not
required to report on this aspect.
At the time of 2:57 p.m., Commissioner Henderson complimented staff on job well
done and was excused to attend another commitment.
BOCC WORK SESSION JUNE 27, 2018 PAGE 6 OF 8
Mr. Groves clarified the applicant is John and Stephanie Shepherd and Mr. Shepherd
has stated on the record several times he is required to apply as property owner and
he is also applying as pastor and president of Shepherdsfield Church. Counsel Smith
confirmed Mr. Shepherd is listed as registered agent of Shepherdsfield Church, LLC
and must trust his intent is to apply as both.
Commissioner Baney asked could there be a condition or would it matter to have
condition to link approval to the church since marketing materials call it Shepherds
Field. Counsel Smith stated if there is discomfort with the financial piece documents
could be amended to require all events are by Shepherdsfield Church not John and
Stephanie Shepherd however he doesn't see a way to prove one versus the other.
Commissioner Baney stated if application is approved and Shepherd's benefit as
private individuals rather than the Church then this is violation of application.
Counsel Smith agreed and his suggestion is the strongest path is following 'money'
since if Church does not follow non-profit requirements it could face the loss of non-
profit status and possibly land use permit. The question is, is the Board comfortable
with that level of condition.
Counsel Smith advised the Board it is scheduled for deliberation Monday, July 2.
There has been a persistent threat of litigation and staff is working quickly to meet
all deadlines. Commissioner Baney asked what is needed from Board. Counsel Smith
replied depending on Board deliberation on July 2nd Legal may be able to produce a
decision by that afternoon and are prepared should a decision be delayed beyond
that date.
COMMISSIONERS UPDATES: None reported.
EXECUTIVE SESSION: None Scheduled.
OTHER ITEMS:
• Public Information Officer Whitney Hale provided a draft State of the County
presentation for the Board's review. The presentation will occur on July 31 at 10
Barrel Brewing. The Board discussed budget highlights should be included in the
presentation. Ms. Hale will revise the presentation and send it out for additional
feedback.
BOCC WORK SESSION JUNE 27, 2018 PAGE 7 OF 8
Being no further items to come before the Board, the meeting was adjourned at 3:26 p.m.
DATED this 0 Day of _ 2018 for the Deschutes County Board of
Commissioners.
FIX
�m Aol
ANTHONY DEBONE, CHAIR
PHI LIP, hG.H DERSON, VICE CHAIR
TAMMY BAN Y®C MISSIONER
BOCC WORK SESSION JUNE 27, 2018 PAGE 8 OF 8
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
WORK SESSION AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 PM, WEDNESDAY, JUNE 27, 2018
Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend
Work Session, which are open to the public, allow the Board to gather information and give direction to staff.
Public comment is not normally accepted. Written minutes are taken for the record
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
ACTION ITEMS
1. Certified Community Behavioral Health Clinic (CCBHC) Quarterly Update, Calendar
Year 2018, Quarter 1 -Janice Garceau, Program Manager
2. Preparation for Shepherd Church Deliberation - 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
192.5660(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 public.
OTHER ITEMS
Board of Commissioners Work Session Agenda Wednesday, June 27, 2018 Page 1
of 2
These can be any items not included on the agenda that the Commissioners with 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.org/m,eetin2calendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Work Session Agenda Wednesday, June 27, 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 June 27, 2018
DATE: June 21, 2018
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
Preparation for Shepherd Church Deliberation
RECOMMENDATION & ACTION REQUESTED:
Review the staff memorandum and identify any issue areas for more information in
advance of deliberations.
ATTENDANCE: Will Groves, Legal
SUMMARY: Board deliberation of the Applicant and Central Oregon LandWatch's appeal of an
administrative decision. File Nos. 247 -17 -000573 -AD and 574 -SP (247-18-000179-A
and 182-A) Staff has prepared a memorandum to help the Board to prepare for
these deliberations.
ES
kA
. .
MEMORANDUM
DATE: June 19, 2018
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: BOCC deliberation of the Applicant and Central Oregon Landwatch'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 (Board) is an appeal filed by applicant John
Shepherd and opponent Central Oregon LanclWatch. 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.
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.
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
(Al 64877).
Following the Court's decision, the County initiated a text amendment 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
RLUIPA. The Board adopted amendments on January 3, 2018, which is the basis for the
present application. Central Oregon LanclWatch appealed Ordinance No. 2018-002 to LUBA,
where that ordinance was remanded back to the County and provided the County options
on how to amend its ESEE Analysis underpinning the Amendments. (LUBA No. 2018-007).
The County is appealing that decision to the Court of Appeals because it believes the remand
is unnecessary.
The Applicant elected to go forward with the application based on the argument that RLUIPA
provides a basis for the County to approve the proposed land use.
II. 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 agree to impose a limit on events to 30 per calendar
year.' 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.
1 This limitation is a change from the administrative approval and is self-imposed by the applicant to limit
infrastructure impacts.
-2-
The Applicant clarified, in their final argument that they are seeking a permit from the County
that would allow it to have thirty (30) wedding events on their property which consist of the
following:
• Friday. Set up for the wedding and the wedding rehearsal'.
• Saturday. Host a wedding and wedding reception.
• Sunday. Clean up the property from the wedding and the reception
The applicant would pursue permits at a later date for:
• The ability to have a rehearsal dinner on the day before a wedding for the wedding
guest who attended the rehearsal and helped set up the wedding.
• The ability to host wedding guests to stay overnight on the property in tents and
camping trailers throughout the weekend.
• No restriction on the number of wedding and wedding receptions per year.
Staff recommends the Board adopt conditions of approval to implement this proposal as
follows:
The applicant has proposed the following use limitations in order to limit
infrastructure improvement obligations and off-site impacts. As conditions of this
approval:
1) Church events shall be limited to 30 one -day events per year. These events may
include set-up/rehearsal the day prior and clean up the day after. Events shall:
a. Be limited to 250 guests
b. Not begin before 7:00 a.m. or end after 10:00 p.m.
c. Limit set-up and take down of all temporary structures and facilities up to
one day prior to the event and one day after the event between 7:00 a.m.
and 10:00 p.m.
d. Not include food service on set-up/rehearsal or take down days.
e. Not include overnight use of the property by the public
2) Church functions including less than 25 persons shall not count toward the 30
event limitation.
III. ISSUES TO BE RESOLVED IN DELIBERATION:
In deliberation, the Board will need to resolve if the proposal complies with local code and
state statute. To the extent the proposal does not comply, RLUIPA may provide a pathway
to approval.
This deliberation summary of party positions is largely composed of direct quotes. Some
quotes have been edited for brevity, clarity, or issue focus.
A. LOCAL CODE - Modification
2 The Applicant's final argument stated "reception" rather than "rehearsal", however, Staff believes this is a
-3-
Staff: The Board decided at the Hearing that inclusion of rehearsal dinners or camping
would constitute a modification of the application under DCC 22.04.020, "Modification of
application". Staff believes the Applicant's final argument makes the current proposal clear
and confirms that the applicant walked -back the previous modification.
B. LOCAL CODE - Violation of Prior Decisions
Is the property in violation of a prior approval under DCC 22.20.15?
Does the Shepherds' failure to establish the cattle and hog operation on the property as
required under the 2001 farm management plan mean that the property is in violation of
the 2001 conditions of approval for the dwelling in conjunction with farm use? Such a finding
would preclude further development of the property until this violation are corrected.
Condition #1 of CU -00-65 specified:
7. Approval is based upon the farm management plan and the plot plan. Anysubstantial
alteration of the farm management plan or the plot plan shall require submittal of a
new land use permit.
Applicant: 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.
Opponents: 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.
Staff: Staff concurs with the Hearing Officer in File No. 247-16-000159-SP/161-AD that
Specifically, a "violation" may be found if a "substantial alteration of the farm
management plan" has occurred.
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 thatthe applicant is currently out of compliance
with the conditions of approval for the farm dwelling on the property.
-4-
Staff recommends the Board concur with the Hearings Officer and incorporate her findings
by reference.
C. LOCAL CODE - Prohibition of Churches in the Wildlife Area Combining Zone
The Wildlife Area Combining Zone currently precludes churches. The County initiated a text
amendment 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 RLUIPA. The Board adopted amendments on January 3, 2018,
which is the basis for the present application. Central Oregon LanclWatch appealed
Ordinance No. 2018-002 to LUBA, where that ordinance was remanded back to the County
and provided the County options on how to amend its ESEE Analysis underpinning the
Amendments. (LUBA No. 2018-007). The County is appealing that decision to the Court of
Appeals because it believes the remand is unnecessary. The Applicant elected to go forward
with the application based on the argument that RLUIPA provides a basis for the County to
approve the proposed land use.
If the Board ultimately approves this application based on RLUIPA, Staff recommends the
Board to direct staff to include alternative findings addressing the amended code provisions
in case the Court of Appeals reverses LUBA or the County elects to amend its ESEE Analysis
as directed by LUBA, this is discussed below.
Deliberation points regarding RLUIPA are also presented below.
D. LOCAL CODE - Withdrawn Applications
Can the applicant change his/her/its mind and request that the County proceed with
rendering a decision on the application after initially withdrawing per DCC 22.08.037. If not,
what case law, DCC provisions, or ORS prevent the applicant from changing his/her/its mind?
How are the opponents harmed by the applicant changing his/her/its mind?
Applicant: Yes, the code does not preclude it.
Opponents: This could be a matter of first impression for Deschutes County. LanclWatch
recommended the County decline to allow the applicant to resubmit after withdrawal. We
also recommended, and continue to recommend, that the County dismiss this application as
res judicata under the County's acknowledged plan and code given LUBA's recent decision.
Staff: Staff recommends that the Board find that nothing precludes County from proceeding
with rendering a decision on the application after initially withdrawing per DCC 22.08.037.
The Opponents present no case law nor evidence that they were harmed, despite being
invited to do so.
-5-
E. LOCAL CODE - Churches
DCC 18.04.030 defines a "church" as "an institution that has nonprofit status as a church
established with the Internal Revenue Service." Is the entity operating the wedding center (1)
an "institution," and does it (2) possess "nonprofit status as a church" as required by the DCC
definition?
Applicant: The County defines a "church" as a religious entity with IRS designation 501 C 3
status. Shepherdsfield qualifies as a church. Once permitted, Shepherdsfield Church will be
paid for these services.
Opponents: 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.
In its most recent decision regarding the requested use, LUBA stated: "In June 2011, John and
Stephanie Shepherd began using their farm dwelling and property in the county's exclusive
farm use (EFU) zone and Metolius Deer Winter Range to conduct commercial wedding
events, a use that is not allowed in the EFU zone." LUBA No. 2018-007, May 16, 2018. This is
a threshold issue, because RLUIPA does not apply to businesses or to for-profit uses, even
by a non-profit entity.
Staff: The definition of "church" in the DCC requires two separate inquires. First, is an
applicant an "institution," and second, does that institution have "nonprofit status as a church
established with the Internal Revenue Service." The record shows, however, that the second
inquiry implicitly includes the first. Staff recommends that the Board thereby interprets the
definition of "church" in DCC 18.04.030 to require only that an applicant provide applicable
determination letter from the Internal Revenue Service.
Chapter 3 of IRS Publication 557 states that"[t]o qualify [for exemption from federal income
tax], the organization must be organized as a corporation (including a limited liability
company,) unincorporated association, or trust. Sole proprietorships, partnerships,
individuals, or loosely associated groups of individual won't qualify." Relying on the verbiage
from the DCC, not all "institutions" may qualify for federal income tax exemptions, but only
"institutions" may apply. Staff recommends that the Board thereby finds that providing
documentation of "nonprofit status as a church established with the Internal Revenue
Service thereby ensures that an applicant is an "institution."
In this particular case, the applicant provided a determination letter from the Internal
Revenue Service dated January 19, 2016 and addressed to Shepherdsfield Church. That
letter states that "Organizations exempt under IRC Section 501(c)(3) are further classified as
either public charities or private foundation. We determined you're a public charity under
the IRC Section at the top of this letter." The top of the letter references 170(b)(1)(A)(i) under
M
Public Charity Status. That references refers to 26 U.S.C. § 170(b)(1)(A)(i) which lists "a
church or a convention of association of churches." Staff recommends that the Board finds
that Shepherdsfield Church meets the definition of church in DCC 18.04.030 and ORS
215.441 thereby applies. By determining that Shepherdsfield Church is in fact a "church," it
is not necessary to address Central Oregon LanclWatch's alternative argument that ORS
215.441 does not apply to a "residential place of worship."
The past Hearings Officer decision and the Administrative decision included a condition that
required the church to maintain its 501(c)(3) status. Staff recommends that the Board
include this requirement as a condition of any approval.
Staff notes that it is not relevant if Shepherdsfield Church was the institution that conducted
weddings in the past, but it seems reasonable to make that a requirement going forward.
Staff recommends conditions of any approval specifying that only the non-profit church
institution is authorized to provide paid services and events under this approval. The church
shall maintain records at all times demonstrating that the non-profit church institution is the
entity conducting and being paid for any paid services and events under this approval. Such
records shall be made available to Deschutes County upon request.
F. LOCAL CODE - Who is the applicant for this proposal
Who is the applicant for this proposal, and have the property owners consented to the
application per DCC 22.08.010(B)(1)?
Applicant: DCC 22.08.010 states "The term "property owner" shall mean the owner of
record..." and B(1) states "Applications for land use actions shall be submitted by the
property owner." John and Stephanie Shepherd are the owners of record and have
consented to the application. When the "Cowboy Church" was permitted earlier this year to
Ramona and Dave Hulick, their names were listed as the applicant and property owners. As
per the application originally prepared by a local land use attorney, Liz Fancher, John and
Stephanie Shepherd are listed as the property owners and applicant.
Opponents: According to the application the applicant/owners are John and Stephanie
Shepherd.
Staff: Staff concurs that the applicant/owners are John and Stephanie Shepherd. Mr.
Shepherd represented on the record on several occasions that he is applying both as the
property owner and more specifically as pastor and president of Shepherdsfield Church.
Staff notes that any party may apply for a land use approval, provided they have received
the owner's consent to make the application. There is no requirement that a church make
the application.
-7-
G. STATE CODE - Non Residential Places of Worship
Does ORS 215.441 preclude weddings at a residential property?
ORS 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...
(2) A county may.
Applicant: 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 a
"nonresidential church" violation that LUBA ruled against. Thus, a house church, like any
church, is a use permitted outright on EFU in Oregon.
The Shepherd's beliefs are based on 2000 -year-old Biblical references acknowledged by
billions of people around the world. They believe that hosting a wedding includes allowing
the wedding party to set up, rehearse the ceremony, eat together at a rehearsal dinner, stay
together in a group overnight, attend the wedding, celebrate the wedding at a reception, and
clean up. Shepherdsfield Church only host ministry related events, such as weddings,
wedding receptions, memorial services, church services, and on rare occasions, a youth
drama ministry.
Opponents: The [staff] 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 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 vJackson County, 42 Or LUBA 204, 211 (2002).
The question of whether accessory uses are permitted in a residential place of worship is a
matter of state law. ORS 215.441 concerns "nonresidential places of worship." While the
M
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.
Staff: Staff recommends the Board find that, by determining that Shepherdsfield Church is
in fact a "church," it is not necessary to address Central Oregon LanclWatch's alternative
argument that ORS 215.441 does not apply to a "residential place of worship."
H. RLUIPA - Religious Land Use and Institutionalized Person Act
The Religious Land Use and Institutionalized Persons Act (RLUIPA), Pub.L. 106-274, codified
as 42 U.S.C. § 2000cc et seq., is a United States federal law that prohibits the imposition of
burdens on the ability of prisoners to worship as they please and gives churches and other
religious institutions a way to avoid zoning law restrictions on their property use. It also
defines the term "religious exercise" to include "any exercise of religion, whether or not
compelled by, or central to, a system of religious belief."
Equal Terms Provision
One provision of RLUIPA pertaining to land use is the Equal Terms Provision. The Equal
Terms Provision states "No government shall impose or implement a land use regulation in
a manner that treats a religious assembly or institution on less than equal terms with a
nonreligious assembly or institution. The Ninth Circuit has weighed in on the Equal Terms
Provision in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma. The test deals with the
meaning of the word "equal" and stresses that it will mean different things in different
situations. The Court goes on to state that a municipality can justify its treatment on different
terms so long as it relates to a legitimate regulatory purpose and not the religious nature of
the institution
Safe Harbor Provision
The RLUIPA "safe harbor" provision appears in the act as follows:
A government may avoid the preemptive force of any provision of this chapter by changing
the policy or practice that results in a substantial burden on religious exercise, by retaining
the policy 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 eliminates the substantial burden.
in
The Board will need to determine if enforcement of our local code would result in a risk of a
RLUIPA violation and whether to provide an exemption to our code.
1) What case law should Deschutes County use for the RLUIPA analysis?
Applicant: There exists an inter -circuit split with respect to the proper "equal terms" test
and the Ninth Circuit has adopted one of the tests with a modification. The split is fairly
summarized in the case of Summit Church v. Randolph Cnty. Dev. Auth., 2016 U.S. Dist. LEXIS
25665 at *5- 8 (N.D.W.V., March 2, 2016). As succinctly summarized in Summit, the other
circuit tests "fall into three categories":
1. The "regulatory purpose" test. Lighthouse Institute for Evangelism, Inc. v. City of Long
Branch, 510 F.3d 253, 266 (3d Cir. 2007). This test holds that a regulation violates the
"Equal Terms" provision if it treats religious institutions less well than secular
institutions that are similarly situated as to the "regulatory purpose."
2. The "accepted zoning criteria" test. River of Life Kingdom Ministries v. Vill. of Hazel
Crest, 611 F.3d 367, 368-74 (7th Cir. 2010). This test looks at whether religious and
non- religious uses are treated equally with respect to "accepted" zoning criteria. So,
for example, if the criterion is "commercial" and "a municipality creates what purports
to be a pure commercial district and then allows other [non-commercial] uses, a
church would have an easy victory if the municipality kept it out." Id. at 373 (emphasis
added).
3. The "functional intents and purposes" test. Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1230-31 (11th Cir. 2004). This test applies the language of the
equal- terms provision more literally and broadly to protect religious exercise (as
RLUIPA requires). it plainly provides, for example, that an ordinance that allows any
"assembly" to locate in a district must permit a religious assembly to locate in that
district, unless the seemingly unequal treatment of religious uses can satisfy "strict
scrutiny." Id. at 1232.
The only case this panel need look at is the Ninth Circuit's decision of Centro Familiar Cristiano
v. City of Yuma. 651 F 3rd 1163 (2011) where the Court added an additional modification by
acknowledging that jurisdictions may still justify treatment of a religious organization on less
than equal terms so long as the disparate treatment is pursuant to a legitimate regulatory
purpose.
On appeal, the Ninth Circuit addressed the four elements of the equal terms provision in
RLUIPA: (1) there must be an imposition or implementation of a land use regulation, (2) by a
government, (3) on a religious assembly or institution; and (4) the imposition must be "on
less than equal terms with a nonreligious assembly or institution." The court determined that
the city's express mandate that "religious organizations" needed a conditional use permit in
order to operate in the Main Street district, while all other membership organizations did not
-10-
need such a permit, demonstrated that the city clearly treated religious organizations on less
than equal terms. The court further explained that once the church established the city's
"less than equal terms" treatment, RLUIPA shifted the burden to the city to demonstrate that
it had a compelling government interest for such a discrepancy.
The court further explained that once the church established the city's "less than equal
terms" treatment, RLUIPA shifted the burden to the city to demonstrate that it had a
compelling government interest for such a discrepancy. Like the Third Circuit, the Ninth
Circuit declined to apply strict scrutiny but, significantly, decided that the city could still justify
the less than equal treatment "on account of a legitimate regulatory purpose." This approach
shifts the burden away from the religious organization to proffer a similarly situated secular
organization onto the city to show that the treatment is not in effect unequal even when the
letter of the law suggests otherwise.
Opponents: Applicable cases include:
Timberline Baptist Church v. Washington County, 211 Or. App. 437,154 P.3d 759 (2007);
River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 369 (7th Cir. 2010);
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011).
The County should also consider Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846,
849 (7th Cir. 2007) or any of the numerous cases that rely on that case, and realize that the
only action the County needs to take, if any, is to change the word "church" in DCC 18.88.040
to the phrase "church or assembly, institution, or membership organization similarly situated
to a church." As we have strongly recommended in the past, this is the only step the County
needs to take to neutralize the threat of an RLUIPA lawsuit. The County's laws are secular,
and there is no basis in law for an RLUIPA lawsuit.
Staff: Both parties cite to the 9th Circuit decision establishing its Equal Terms analysis -
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma. Staff recommends the Board defer
to this case for analysis. Staff notes that Centro Familiar Cristiano Buenas Nuevas v. City of
Yuma appears to contain a two prong test, which is addressed immediately below in
questions 2 and 3.
2) Does the prohibition on churches in the Wildlife Area Combining Zone represent an
equal terms violation where (1) there is an imposition or implementation of a land -use
regulation (2) by a government U on a religious assembly or institution (4) on less than
equal terms with a nonreligious assembly or institution?
Staff believes that the prohibition on churches in the Wildlife Area Combining Zone is plainly
an imposition or implementation of a land -use regulation, by a government, on a religious
assembly or institution. The question remains if this implementation of a land -use
regulation is imposed on the church on less than equal terms with a nonreligious assembly
or institution.
-11-
Applicant: Shepherdsfield's "equal terms" claim is likely to succeed under the 9th Circuit's
test especially when the provision is "construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by law," as 42 U.S.C. § 2000cc-(3)(g) requires.
Simply put, Shepherdsfield is a religious institution, and its intended use of the property is
akin to the religious and non -religious uses the Zoning Code already freely permits at the
Property— namely ranches and other secular activities. This apparent unequal treatment of
like uses is more than enough to satisfy Sheperdsfield's burden under RLUIPA, 42 U.S.C.
2000cc(4)(b), and to shift the burden to the County.
Opponents: The applicants do not have a colorable claim under the Religious Land Use and
Institutionalized Persons Act (RLUIPA). As LandWatch has maintained since 2016, the
applicants' threats of an RLUIPA lawsuit are unfounded. There is no viable equal terms or
substantial evidence claim. There are no similarly situated properties. Although the
applicants' dwelling was approved as a farm dwelling, the applicants are not and never have
been principally engaged in farming for the primary purpose of obtaining a profit in money.
Their property is in no way comparable to the examples of a ranch and vineyard cited by the
applicants in the June 4 hearing.
Staff: Staff notes that in the EFU zone and in the Wildlife Area Combining Zone, allowed uses
such as farm stands, wineries, and "Agri -Tourism and other Commercial Events or Activities"
have substantially similar operating characteristics to churches, in that they would that
would cause congregation of people. Staff recommends that the Board find that these uses,
with substantially similar operating characteristics to the current proposal, present a
significant risk of a RLUIPA violation for imposing a land -use regulation on the church on less
than equal terms with a nonreligious assembly or institution.
The Safe Harbor Provision's terms allow a government to "avoid the preemptive force of any
provision of RLUIPA". However, that language does not seem to imply that the Board has to
make a formal finding that the DCC violates RLUIPA before the Board can first approve the
use. Staff recommends the Board find that the prohibition of churches in the Wildlife Area
Combining Zone presents a risk of violating the RLUIPA "equal terms" provision and exempt
the church from that prohibition.
3) Is the County able to iustify some distinctions drawn with respect to churches, by
demonstrating that the less than equal terms are on account of a legitimate
regulatory.purpose.,.not the fact the institution is religious in nature?"
Applicant: Shepherdsfield is a religious institution, and its intended use of the property is
akin to the religious and non -religious uses the Zoning Code already freely permits at the
Property— namely ranches and other secular activities. This apparent unequal treatment of
like uses is more than enough to satisfy Sheperdsfield's burden under RLUIPA, 42 U.S.C.
2000cc(4)(b), and to shift the burden to the County. The County will be unable to meet its
burden of adducing a legitimate ''regulatory purpose" or "objective zoning criterion" upon
-12-
which it can justify the unequal treatment—let alone a justification that would satisfy strict
scrutiny.
opponents: The County's comprehensive plan and code protect winter range for explicitly
secular reasons and treat churches and nonreligious assemblies on equal terms. As the
Oregon Court of Appeals held in Timberline Baptist Church v. Washington County, 211 Or. App.
437, 154 P.3d 759 (2007), RLUIPA does not excuse churches from compliance with zoning
laws. Prohibiting uses that are inconsistent with protection of mule deer and critical winter
range habitat, while allowing agritourism on EFU land, is rational and neither treats religious
uses on unequal terms nor discriminates against uses on the basis of religion. 1000 Friends
of Oregon v. Clackamas County, 46 Or. LUBA 375, 396 (2004).
Staff: In the County's ESEE for Wildlife, the County found, "...that the identified deer winter
range habitat and residential and other conflicting uses within the deer winter range are
important relative to each other, and that the conflicts should be balanced by restricting or
regulating certain uses and prohibiting others." Ord. 92-040. Consequently, the Wildlife Area
Combining Zone prohibits a variety of uses that would cause congregation of people such as
churches or schools.
Some uses that would cause congregation of people, like farm stands, were not included in
the prohibition from the beginning. Some uses, like wineries, were added to the EFU zone
recently, but were not also added to the Wildlife Area Combining Zone prohibitions. Finally,
"Agri -Tourism and other Commercial Events or Activities", were added to the EFU zone
recently with seasonal restrictions included in the use standards to avoid conflicts with
wildlife.
The Safe Harbor Provision's terms allow a government to "avoid the preemptive force of any
provision of RLUIPA". However, that language does not seem to imply that the Board has to
make a formal finding that the DCC violates RLUIPA before the Board can first approve the
use. Staff recommends that the Board find that farm stands, wineries, and "Agri -Tourism
and other Commercial Events or Activities" have substantially similar operating
characteristics to churches, in that they would that would cause congregation of people.
Therefore, there is a significant risk of a RLUIPA violation if the County imposes a land -use
regulation on the church on less than equal terms with a nonreligious assembly or
institution. Staff recommends the Board exempt churches from the current Wildlife Area
Combining Zone prohibition.
4) Is the Substantial Burden prong of RLUIPA (42 USC 2000cc(1)) relevant to this matter?
Applicant: The Supreme Court recently held in Holt, that RLUIPA prohibits the government
from taking any action that substantially burdens the religious exercise of a person "unless
the government demonstrates that the action constitutes the least restrictive means of
furthering a compelling governmental interest." 135 S. Ct. at 859. Since Shepherdsfield can
satisfy its burden of demonstrating a prima facie "substantial burden" case, the County must,
-13-
but will be unable to, demonstrate that its prohibition of its use (A) is in furtherance of a
compelling governmental interest; and (B) is the least restrictive means of furthering that
compelling governmental interest.
Opponents: The lands zoned for winter range in Deschutes County are a fraction of the
County's hundreds of thousands of acres of land area. Where there is plenty of land on which
religious organizations can build churches, the fact that they are not permitted to build
everywhere does not create a substantial burden under RLUIPA.
Merely classifying land into agricultural lands or winter range lands does not discriminate
against churches. Hale 0 Koulo Church v. Maui Planning Commission, 229 F. Supp. 2d 1056,
1070 (D. Haw. 2002). The County values both wildlife and religion, and setting aside places
for each is not discrimination. The County has the right and the power to do so, and
compliance with the laws of the County is not a substantial burden. To permit compliance
with the law to be a substantial burden on religion would be to make religion superior to the
law. Id.
Staff: Staff recommends that the Board find that the prohibition of churches in the Wildlife
Area Combining Zone is a substantial burden on the religious exercise of the church.
.5) Does the plain language of the Safe Harbor prong of RLUIPA (42 USC 2000cc-3(e))
provide the County an independent basis to approve the application?
Applicant: A government may avoid the preemptive force of any provision of RLUIPA by
changing the policy or practice that results in a substantial burden on religious exercise, by
retaining the policy 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 eliminates the substantial burden
under the Safe Harbor provision of RLUIPA. See, 42 U.S.C. § 2000cc-3(e).
The Ninth Circuit has not had occasion to construe this provision, so we can look at the
Seventh Circuit's interpretation in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d
752, 762 (7th Cir. 2003). Civil Liberties stands for the proposition that under RLUIPA's safe
harbor provision, a government can avoid liability under RLUIPA by amending its land use
regulations to remove the allegedly burdensome or discriminatory provisions, even after
such provisions have caused harm. Civil Liberties, 342 F.3d at 762.
Opponents: No, this is just a means of achieving compliance with RLUIPA. The current plan
and code do comply with RLUIPA. The applicant is a business. Businesses are not protected
by RLUIPA. The plan and code provisions in question have been in place since 1992. Any
church that did buy land would be unable to show harm under RLUIPA. There are hundreds
of thousands of acres to locate a church. RLUIPA comes into play when a church owns land
and the church begins to build, and then a county tries to change the law to say churches
are not permitted there.
-14-
RLUIPA, as we have said from the beginning, is not relevant to Deschutes County. In
Deschutes County citizens and government value wildlife. Wildlife contribute millions upon
millions of dollars annually to the county's economy and form a large part of the county's
quality of life.
The County has laws that protect both religion and wildlife. The laws of Deschutes County
are ostentatiously secular, and there is no credible argument to the contrary.
Staff: Staff concurs with the applicant that the Safe Harbor prong of RLUIPA provides the
County an independent basis to approve the application. Staff recommends the Board take
advantage of the Safe Harbor prong above.
I. ALTERNATIVE ARGUMENTS
Staff recommends the Board direct staff to include two alternative methods of approving the
present application.
1) In County File Nos. 247 -16 -000159 -SP and 161 -AD, the Hearings Officer approved the
applicant's proposal for a church on the property based on the argument that churches are
prohibited as conditional uses in the WA zone, but churches are not conditional uses in the
EFU zone, and are, therefore, not subject to this prohibition. Although this analysis was
previously denied by LUBA, the County can revisit this argument as a method of taking
advantage of the RLUIPA "safe harbor" provision.
2) As discussed above, the County initiated a text amendment 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 RLUIPA. The Board
adopted amendments on January 3, 2018, which is the basis for the present application.
Central Oregon LandWatch appealed Ordinance No. 2018-002 to LUBA, where that
ordinance was remanded back to the County and provided the County options on how to
amend its ESEE Analysis underpinning the Amendments. (LUBA No. 2018-007). The County
is appealing that decision to the Court of Appeals because it believes the remand is
unnecessary.
In the event that the text amendment, which removes the prohibition on churches in the
Wildlife Area Combining Zone, is approved on appeal or remand, the Board should consider
including findings in this decision to make clear that the present application would also be
approved in those circumstances.
IV. SECTION 22.20.040 AND THE 150 -DAY CLOCK
This application was submitted on July 12, 2017 and deemed complete by the County on
August 11, 2017. The applicant tolled the clock for 161 days from August 24, 2017 through
February 1, 2018. Because the applicant tolled the clock for 165 days and consented to post
hearing open record periods of 21 and 15 days, the 150th day for the County to take final
-1.5-
action on this application is currently July 24, 2018. Staff notes however, that ORS 215.427
appears to limit the total processing time for an application to 365 days, which requires the
County to take final action on this application by July 12, 2018.
Attachments:
1. Decision Matrix
2. Post Hearing Record Materials
so
*Y _
K T "ti -P.1
Shepherd Church
Land Use File Nos. File Nos. 247 -17 -000573 -AD and 574 -SP (247-18-000179-A and 182-A)
Issue Area
Applicable Approval Criterion
Applicant Response
Opponents
Staff Comment
The Board decided at the Hearing that
inclusion of rehearsal dinners or
camping would constitute a
modification of the application under
LOCAL CODE -
DCC 22.04.020, "Modification of
DCC 22.04.020, "Modification of
A
Modification
application"
application". Staff believes the
Applicant's final argument makes the
current proposal clear and confirms
that the applicant walked -back the
previous modification.
Staff concurs with the Hearing Officer
My property has NEVER been ruled out
in File No. 247-16-000159-SP/161-AD
DCC 22.20.15 - Does the Shepherds'
of compliance of my FMP and the
thata "violation" may be found if a
failure to establish the cattle and hog
review process has not determined this
Under DCC 22.20.15, additional land
"substantial alteration of the farm
operation on the property as required
to be so either. My farming has been
use approvals for the property must
management plan" has occurred.
LOCAL CODE -
under the 2001 farm management plan
audited annually by the Deschutes
wait until the property comes into
Although the FMP has been altered via
B
Violation of Prior
mean that the property is in violation of
Count Tax Assessors office and always
compliance with conditions of approval
a change in farming operations, and
Decisions
the 2001 conditions of approval for the
found to be in compliance. !have also
the County has already issued. The
there has been a period of time during
dwelling in conjunction with farm use?
provided to the Commissioners a
applicant is in violation of the farm
which farming operations were not
Such a finding would preclude further
receipt of livestock sales for 2017 and
management plan that was required
taking place on the subject property,
development of the property until this
photographic evidence of an active
for the dwelling.
there is no evidence that the applicant
violation are corrected.
is currently out of compliance with the
pasture.
conditions of approval for the farm
dwelling on the property.
Prohibition of DCC 18.88 - The Wildlife Area
C Churches in the Combining Zone currently precludes
Wildlife Area churches.
Combining Zone
Can the applicant change his/her/its
mind and request that the County
proceed with rendering a decision on
LOCAL CODE - the application after initially
withdrawing per DCC 22.08.037. If not,
D Withdrawn Yes, the code c
Applicationswhat case law, DCC provisions, or ORS
prevent the applicant from changing
his/her/its mind? How are the
opponents harmed by the applicant
changing his/her/its mind
This could be a matter of first
impression for Deschutes County.
LanclWatch recommended the County
decline to allow the applicant to
resubmit after withdrawal. We also
recommended, and continue to
recommend, that the County dismiss
this application as res judicata under
the County's acknowledged plan and
code given LUBA's recent decision.
E.
F. the
prc
DCC 18.04.030 defines a "church" as "an
institution that has nonprofit status as
a church established with the Internal
Revenue Service." Is the entity
operating the wedding center (1) an
"institution," and does it (2) possess
"nonprofit status as a church" as
required by the DCC definition?
Who is the applicant for this proposal, and
have the property owners consented to the
application per DCC 22.08.010(6)(1)?
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.
According to the application the
applicant/owners are John and Stephanie
Shepherd.
G
IMMII
Does ORS 215.441 preclude weddings at a
residential property?
What case law should Deschutes County use
for the RLUIPA analysis?
ORS 215.441 concerns "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.
LandWatch Cited several cases, including
Centro Familiar Cristiano Buenas Nuevas v.
City of Yuma
The applicants do not have a colorable claim
Shepherdsfield's "equal terms" claim is likely
under the Religious Land Use and
Staff recommends that the Board find that
'
to succeedunder the 9th Circuit's test
Institutionalized Persons Act (RLUIPA). As
farm stands, wineries, and "Agri -Tourism and
Does the prohibition on churches in the
especially when the provision is "construed
LandWatch has maintained since 2016, the
other Commercial Events or Activities" have
Wildlife Area Combining Zone represent an
in favor of a broad protection of religious
applicants' threats of an RLUIPA lawsuit are
substantially similar operating characteristics'
RLUIPA - Religious Land
equal terms violation where (1) there is an
exercise, to the maximum extent permitted
unfounded. There is no viable equal terms or
to churches, in that they would that would
Use and
imposition or implementation of a land -use
by law," as 42 U.S.C. § 2000cc-(3)(g) requires.
substantial evidence claim. There are no
cause congregation of people. Therefore,
H2.
Institutionalized Person
regulation, (2) by a government, (3) on a
Simply put, Shepherdsfield is a religious
similarly situated properties. Although the
there is a significant risk of a RLUIPA violation
Act
religious assembly or institution, (4) on less
institution, and its intended use of the
applicants, dwelling was approved as a farm
if the County imposes aland-use regulation
than equal terms with a nonreligious
;property is akin to the religious and non-
dwelling, the applicants are not and never
on the church on less than equal terms with'.
assembly or institution?
religious uses the Zoning Code already freely
have been principally engaged in farming for
a nonreligious assembly or institution.'. Staff:
perm
permits at the Property- namely ranches
the primary purpose of obtaining a profit in
recommends the Board exempt churches
and other secular activities.
money. Their property is in no way
from the current Wildlife Area Combining
comparable to the examples of a ranch and
Zone prohibition.
vineyard.
The County's comprehensive plan and code
Staff recommends that the Board find that
protect winter range for explicitly secular
farm stands, wineries, and "Agri -Tourism and
Shepherdsfield is a religious institution, and
reasons and treat churches and nonreligious
other Commercial Events or Activities" have
its intended use of the property is akin to the
assemblies on equal terms. As the Oregon
substantially similar operating characteristics
Is the County able to justify some distinctions
religious and non -religious uses the Zoning
Court of Appeals held in Timberline Baptist
to churches, in that they would that would
RLUIPA -Religious Land
drawn with respect to churches, by
Code already freely permits at the
Church v. Washington County, RLUIPA does
cause congregation of people. Therefore,
H3.
Use and
demonstrating that the less than equal terms
Property— namely ranches and other secular
not excuse churches from compliance with
there is a significant risk of a RLUIPA violation
Institutionalized Person
are on account of a legitimate regulatory
activities. This apparent unequal treatment
zoning laws. Prohibiting uses that are
if the County imposes a land -use regulation
Act
purpose, not the fact the institution is
of like uses is more than enough to satisfy '
inconsistent with protection of mule deer
on the church on less than equal terms with
religious in nature?"
Sheperdsfield's burden under RLUIPA, and to
and critical winter range habitat, while
a nonreligious assembly or institution.' Staff
shift the burden to the County.
allowing agritourism on EFU land is rational
recommends the Board exempt churches
and neither treats religious uses on unequal
from the current Wildlife Area Combining
terms nor discriminates against uses on the
Zone prohibition.
basis of religion.
H4.
IM
Does the plain language of the Safe Harbor
prong of RLUIPA (42 USC 2000cc-3(e))
provide the County an independent basis to
approve the application?
No, this is just a means of achieving
compliance with RLUIPA. The current plan
;ing and code do comply with RLUIPA. The
applicant is a business. Businesses are not
)y protected by RLUIPA. The plan and code
provisions in question have been in place
since 1992. Any church that did buy land
is would be unable to show harm under
S RLUIPA. There are hundreds of thousands of
,e, acres to locate a church. RLUIPA comes into
play when a church owns land and the
church begins to build, and then a county
tries to change the law to say churches are
not permitted there.
The lands zoned for winter range in
RLUIPA prohibits the government from
Deschutes County are a fraction of the
taking any action that substantially burdens
RLUIPA;- Religious Land
County's hundreds of thousands of acres of
the religious exercise of a person "unless the
Use and
Is the Substantial Burden prong of RLUIPA
land area. Where there is plenty of land on
government demonstrates that the action
Institutionalized Person
(42 USC 2000cc(1)) relevant to this matter?
which religious organizations can build
constitutes the least restrictive means of
Act
churches, the fact that they are not
furthering a compelling governmental
permitted to build everywhere does not
interest. Shepherdsfield can satisfy its
create a substantial burden under RLUIPA.
burden of demonstrating a prima facie
"substantial burden" case.
Does the plain language of the Safe Harbor
prong of RLUIPA (42 USC 2000cc-3(e))
provide the County an independent basis to
approve the application?
No, this is just a means of achieving
compliance with RLUIPA. The current plan
;ing and code do comply with RLUIPA. The
applicant is a business. Businesses are not
)y protected by RLUIPA. The plan and code
provisions in question have been in place
since 1992. Any church that did buy land
is would be unable to show harm under
S RLUIPA. There are hundreds of thousands of
,e, acres to locate a church. RLUIPA comes into
play when a church owns land and the
church begins to build, and then a county
tries to change the law to say churches are
not permitted there.
[STAFF] 1) The Hearings Officer previously'
approved the church on the property based
(STAFF\ 2) In the event that the text
on the argument that churches are
amendment,which removes the prohibition'
prohibited as conditional uses in the WA
p
on churches in the Wildlife Area Combining
ALTERNATIVE
Staff recommends the Board direct staff to
zone, but churches are not conditional uses
Zone, is approved on appeal or remand, the
I.
ARGUMENTS
include two alternative methods of
in the EFU zone, and are therefore, not
Board should consider including findings in
approving the present application.
subject to this prohibition. Although this
this decision to make clear that the present
analysis was previously denied by LUBA, the
application would also be approved in those
County can revisit this argument as a'method
of taking advantage of the RLUIPA "safe
circumstances.
harbor" provision
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 June 27, 2018
DATE: June 20, 2018
FROM: Janice Garceau, Health Services,
TITLE OF AGENDA ITEM:
Certified Community Behavioral Health Clinic (CCBHC) Quarterly Update, Calendar Year
2018, Quarter 1
RECOMMENDATION & ACTION REQUESTED:
This is a status report for information only; there is no staff recommendation.
ATTENDANCE: Health Services staff: Daniel Emerson, Management Analyst; Tyler Nass,
Management Analyst; Shannon Vandegriff, Systems Performance Program Manager;
Kristin Gyford, Behavioral Health Specialist II, Veterans' Specialist; Janice Garceau,
Behavioral Health Outpatient Services Program Manager; David Inbody, Administrative
Services Deputy Director
SUMMARY: Health Services staff will provide a status report about CCBHC operations for
the first quarter of calendar year 2018 and an update on services provided to veterans.
CCBHC Required Metrics
1. Adult Major Depressive Disorder Suicide Risk Assessment: Percentage of consumers aged 18 years and
older with a diagnosis of major depressive disorder with a suicide risk assessment completed during the visit
in which a new diagnosis or recurrent episode was identified
• Collection Frequency: At initial assessment and then annually
• Metric Challenges: Minimal
2. Unhealthy Alcohol Use Screening & Brief Counseling: Percentage of consumers aged 18 years and older
who were screened at least once within the last 24 months for unhealthy alcohol use using a systematic
screening method AND who received brief counseling if identified as an unhealthy alcohol user
• Collection Frequency: At initial assessment and then annually
• Metric Challenges: Existing clients prior to 4/1/17 implementation date will be screened at their
annual assessment (may not have occurred yet but will be accounted for by end of demonstration
year); clients declining to answer count against the metric
3. Tobacco Use Screening & Cessation Intervention: Percentage of consumers aged 18 years and older who
were screened for tobacco use one or more times within 24 months AND who received cessation counseling
intervention if identified as a tobacco user
• Collection Frequency: At initial assessment and then annually
• Metric Challenges: Existing clients prior to 4/1/17 implementation date will be screened at their
annual assessment (may not have occurred yet but will be accounted for by end of demonstration
year); clients declining to answer count against the metric
4. Time to Initial Evaluation: Percentage of new consumers with initial evaluation provided within 10 business
days of first contact
• Collection Frequency: Once at initiation of services
• Metric Challenges: Does not account for clients who select appointment dates beyond 10 business
days for scheduling preference; does not account for "no shows" or cancelations
5. Body Mass Index Assessment for Children and Adolescents: Percentage of consumers ages 3 to 17 who
had an outpatient visit and who had evidence of BMI percentile documentation during the measurement
year
• Collection Frequency: At initial assessment and then annually
• Metric Challenges: Existing clients prior to 4/1/17 implementation date will be screened at their
annual assessment (may not have occurred yet but will be accounted for by end of demonstration
year); clients who decline count against the metric; height/weight collection is difficult for clients
seen in the community
11/21/17
6. Body Mass Index (BMI) Screening & Follow -Up for Adults: Percentage of consumers aged 18 years and
older with a BMI documented during the current encounter or during the previous six months AND with a
BMI outside of normal parameters, a follow-up plan is documented during the encounter or during the
previous six months of the current encounter
• Collection Frequency: At initial assessment and then every 6 months
• Metric Challenges: Existing clients prior to 4/1/17 implementation date will be screened at their
annual assessment (may not have occurred yet but will be accounted for by end of demonstration
year); height/weight collection is difficult for clients seen in the community
7. Screening for Clinical Depression and Follow -Up Plan: Percentage of consumers aged 12 and older
screened for clinical depression using an age-appropriate standardized depression screening tool, and if
positive, a follow-up plan is documented on the date of the positive screen
• Collection Frequency: Metric is based on results from most recent visit; therefore, screening
expected at every visit
• Metric Challenges: Frequent screening can be burdensome for clients seen multiple times per week
or month
8. Child and Adolescent Major Depressive Disorder Suicide Risk Assessment: Percentage of consumer visits
for those consumers aged 6 through 17 years with a diagnosis of major depressive disorder with an
assessment for suicide risk
• Collection Frequency: Every visit
• Metric Challenges: Risk assessment is expected to be completed for every type of service delivered
even during groups and family therapy sessions, which may not be clinically appropriate. Made the
decision to not systematically assess suicide risk in groups but to attend to screening during other
services. If a clinician observes concerning signs it is addressed outside of the group. Clinicians have
discretion in assessing at family appointments. Licensed Medical Providers (LMP) conduct suicide
risk assessments but the data cannot be queried from the EHR at this time.
9. Depression Remission at Twelve Months: Percentage of consumers 18 years of age or older with major
depressive disorder or persistent depressive disorder who reached remission 12 months (± 30 days) after an
index visit
• Collection Frequency: At first treatment appointment and then annually
• Metric Challenges: Some clients will discharge prior to 12 months (± 30 days). These cases will not
meet the metric.
11/21/17
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