2018-396-Minutes for Meeting August 15,2018 Recorded 9/24/2018\�T E S
BOARD OF
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COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-6570
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09/24/2018 8:59:20 AM
1:30 PM WEDNESDAY, August 15, 2018 ALLEN CONFERENCE ROOM
Present were Commissioners Phil Henderson and Anthony DeBone. Commissioner Tammy Baney was
absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County
Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. Several
citizens and representatives of the media were in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 1:30 p.m.
ACTION ITEMS
1. Smoke Management Plan Update and Draft Comment Letter
Ed Keith, County Forester presented a letter for Board consideration of
comment for the DEQ Smoke Management hearing. Mr. Keith reviewed
proposed changes to the Oregon Smoke Management plan by the Oregon
Department of Forestry and Department of Environmental Quality (DEQ) for
smoke sensitive receptor areas. Mr. Keith spoke on fuel reduction efforts
and the impact of the proposed rules. Revisions to the definition of smoke
intrusion would include a one hour threshold and a 24-hour average to
measure the amount of smoke that is allowed before a violation occurs. This
makes it impossible to have prescribed burns within 10 miles of the city.
BOCC WORK SESSION AUGUST 15, 2018 PAGE 1 OF 7
Communication efforts are promoting awareness for residents on ways to
protect themselves during smoke conditions. The prescribed burns are
beneficial and reduce the risk of wildfire to our community. A prescribed
burn has a shorter length of smoke intrusion verses the long periods of
smoke impact during wildfires. The Board expressed support for the
exception process and opposition to the one hour standard. Commissioner
Henderson hopes the public recognizes the trade-off of providing safety to
our community with prescribed burns to deter wildfires and hopes the
community supports it as well.
The Board suggested a few revisions to the comment letter including the
history of fires in Central Oregon. Written comments can be submitted
through September 14. The Smoke Management hearing is scheduled for
August 22. The hearing is being hosted by DEQ and Department of Forestry.
Commissioners DeBone and Henderson will be attending the hearing.
HENDERSON: Move approval of Board signature
DEBONE: Second
County Administrator Anderson noted that Commissioner Baney is not
present today but had submitted a few revisions to be included.
VOTE: HENDERSON:
Yes
Absent, excused
Chair votes yes.
Other Item. Commissioner DeBone introduced a letter submitted by Joe
Stutter, Senior Advisor that will jointly be submitted by Deschutes County and
Klamath County to the office of State and Private Forestry. The funding for
the joint Chiefs Basin Project is for fuels reduction efforts. This is a three
year project that has to be awarded on an annual basis. This funding did not
arrive during this third year. Commissioner DeBone made revision to the
last sentence. The Board expressed support of chair signature.
BOCC WORK SESSION AUGUST 15, 2018 PAGE 2 OF 7
Other Item. Emergency Services Manager Nathan Garibay and County
Forester Ed Keith presented grant opportunities through the Office of
Emergency Management. Due to the 2017 Milli Fire, the County is now
eligible to apply for hazard mitigation grant funds. The funding opportunity
was announced the end of July and three potential projects have been
identified as fuels reductions, planning project for contractor for natural
hazards mitigation plan, and initiatives for wildland fire assessments.. The
application requires a letter of intent. Mr. Keith commented on the federal
declaration of the Milli Fire funding opportunity and the encouragement for
the projects for wildfire mitigation. The Board expressed support of
application.
2. Consideration of Justice Assistance Grant (JAG) Application
Sergeant Mike Sundberg, training department in the Sheriff Office presented
the grant information. The current supply of automated external
defibrillators (AEDs) are going through a recall process. This grant would
afford the replacement of 9 complete AEDs. The goal is to have AEDs in the
patrol cars. The Board expressed support of application.
3. 2019 Q1 Discretionary Grant Follow Up
Judith Ure, Management Analyst presented the follow-up of the discretionary
grant discussion from the July 23, 2018 Work Session.
• Network of Volunteer Administrators requested $1,500 for the
Volunteer Management 101 & 201 Training. They have provided their
budget information. Commissioner Baney had indicated she would
support up to $500. The Board supported $400 each.
BOCC WORK SESSION AUGUST 15, 2018 PAGE 3 OF 7
• The Soil and Water Conservation requested $2,500 for weed
management projects and proposed they would work with County
Forester for noxious weed management. Condition of approval would
be to provide a report. The Board expressed support.
• Reach of Redmond requested $5,000 for their Reach Social Enterprise
project. Commissioner DeBone reported he had contacted them for
clarification of their need. The money would be the cost of a transfer
fee. The Board expressed support of $2,500 from fundraising.
• La Pine Community Kitchen presented a request for $3,000 for the
produce department support. Grocery stores donate produce and
then it is delivered to families in need. Commissioner DeBone
expressed support of $1,000. Commissioner Henderson supported
$600. Mr. Ure will contact Commissioner Baney for her interest.
4. Consideration of Board Orders No. 2018-057 and 2018-058 to Hear an
Appeal of Hearings Officer's Decision that a Paved Taxiway Violates
Open Space Requirement of Eagle Air Estates Cluster Subdivision
Peter Russell, Senior Transportation Planner presented this item for
discussion and gave the history of the appeal. The hearing's officer decision
was that the taxiway did violate the open space as an allowed use. Mr.
Russell presented Board Orders for consideration to hear or not hear the
appeal. A tentative date of September 5` would be scheduled as the hearing
date. Mr. Russell noted at this time there is a code enforcement hearing date
scheduled for October 23rd. The Board supports hearing the appeal de novo.
HENDERSON: Move approval of Order No. 2018-057
DEBONE: Second
VOTE: HENDERSON: Yes
BAN EY: Absent, excused
DEBONE: Chair votes yes.
BOCC WORK SESSION AUGUST 15, 2018 PAGE 4 OF 7
5. Consideration of Board Order No. 2018-055, to Hear an Appeal of a
Hearing's Officer Denial of a Site Plan Review for a Church
Cynthia Smidt presented this item for discussion. The appeal is due to the
hearings officer's decision denying a site plan review for a church proposed
by Father's House Church based on harmonious development. Two appeals
have been submitted one for the site plan and one for the conditional use.
Discussion held on the process for this type of appeal. The neighbors are
appealing the conditional use of the compatibility and the historical
interpretation is incorrect.
HENDERSON: Move approval of Order No. 2018-055
DEBONE: Second
VOTE: HENDERSON: Yes
BANEY: Absent, excused
DEBONE: Chair votes yes.
The applicant has extended the clock to November 15 and a hearing could be
scheduled for August 27.
6. Potential Marijuana Production Appeal, 22280 Jason Road and
Consideration of Order No. 2018-059
Jacob Ripper, Community Development Department presented the item for
discussion. The application is to establish a marijuana production and
processing facility in the Exclusive Farm Use Zone. There is one neighbor in
opposition. Nick Lelack Community Development Department Director
spoke on the process in the department for the marijuana production and
processing applications.
HENDERSON: Move approval of Order No. 2018-059
DEBONE: Second
VOTE: HENDERSON: Yes
BAN EY: Absent, excused
DEBONE: Chair votes yes.
BOCC WORK SESSION AUGUST 15, 7_018 PAGE 5 OF 7
OTHER ITEMS:
• Community Development Department Nick Lelack and Peter Russell
presented a draft letter to send to Senator Prozanski's office regarding
Deschutes County's marijuana transportation system development charges.
Commissioner DeBone suggested a revision regarding the irrigation water.
Commissioner Henderson suggested to include the date of the adoption of
the SDC resolution. The next meeting of the Work Group is September 10.
Deschutes County is the only county with an SDC charge for marijuana
production facilities. Suggestion made to send the letter jointly from CDD
and the Road Department.
• County Administrator Anderson noted Brooke Berglund, Local Government
Affairs would be in Bend in September and offered to give an update on the
Pelton Round Butte Project if the Board is interested. Mr. Anderson will
invite her to the work session.
• Mr. Anderson noted the recent discussion regarding the PILT lawsuit and
recommends we opt in for the class action suit. The deadline for the opt -in is
September 14
• Mr. Anderson reported on receiving another request from Health Services
for the replacement of six critical position. Commissioner DeBone
commented this is after the beginning of our new fiscal year and would
support filling existing positions only. Commissioner Henderson is hesitant
and would like to see where the department staffing is especially after the
direction was made at the budget hearings to freeze hiring for the
department. The Board requested a head count or staff review within the
next few weeks.
COMMISSIONER UPDATES: None reported.
BOCC WORK SESSION AUGUST 15, 2018 PAGE 6 OF 7
EXECUTIVE SESSION:
At the time of 3:18 p.m., the Board went into Executive Session under ORS 192.660
(2) (h) Litigation. The Board came out of Executive Session at 4:07 p.m.
Being no further items to come before the Board, the meeting was adjourned at 4-:07 p.m.
DATED this /7 Day of 2018 for the Deschutes County Board of
Commissioners.
ATTEST.
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BOCC WORK SESSION AUGUST 15, 2018 PAGE 7 OF 7
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, AUGUST 15, 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. Smoke Management Plan Update and Draft Comment Letter - Ed Keith, Forester
2. Consideration of Justice Assistance Grant QAG) Application -Troy Gotchy, Sergeant
3. 2019 Q1 Discretionary Grant Follow -Up -Judith Ure, Management Analyst
4. Consideration of Board Orders 2018-057 and 2018-058 to Hear an Appeal of
Hearings Officer's Decision that a Paved Taxiway Violates Open Space
Requirements of Eagle Air Estates Cluster Subdivision - Peter Russell, Senior Planner
5. Consideration of Board Order No. 2018-055, to Hear an Appeal of a Hearings
Officer Denial of a Site Plan Review for a Church - Cynthia Smidt, Associate Planner
6. Potential Marijuana Production Appeal, 22280 Jason Road, and Consideration of
Order 2018-059 - William Groves, Senior Planner
COMMISSIONER'S UPDATES
Board of Commissioners Work Session Agenda Wednesday, August 15, 2018 Page 1
of 2
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
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/meetin2calendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Work Session Agenda Wednesday, August 15, 2018 Page 2
of 2
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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 August 15, 2018
DATE: August 8, 2018
FROM: Ed Keith, Natural Resources - Forestry, 541-322-7117
TITLE OF AGENDA ITEM:
Smoke Management Plan Update and Draft Comment Letter
RECOMMENDATION & ACTION REQUESTED:
Provide input and direction on draft comment letter to ODF and DEQ
ATTENDANCE: Ed Keith
SUMMARY: The Oregon Department of Forestry and Department of Environmental Quality
have proposed rule revisions to the state Smoke Management Plan and are accepting
comments through August 31. A draft comment letter and DEQ's summary of actions and
changes leading up to this comment period is attached.
Oregon Department of Forestry
Attn: Jenna Nelson
2600 State Street
Salem, OR 97310
Oregon Department of Environmental Quality
Attn: Emil Hnidey
700 NE Multnomah Street, Suite 600
Portland, OR 97232
Thank you for the opportunity to provide comments to the Oregon Department of Forestry (ODF) and
Department of Environmental Quality (DEQ) regarding proposed rule changes to the Oregon Smoke
Management Plan.
Like all Oregonians, we care deeply for clean, healthy air, particularly for members of our communities
who are medically -sensitive or vulnerable to smoke. Yet, we also recognize that to adequately protect
communities and mitigate increasingly severe wildfire and wildfire smoke in the long run, we need
meaningful reforms to Oregon's Smoke Management Plan that provide greater flexibility and opportunity
to increase the safe and effective use of prescribed burning. This is especially true in areas in and
immediately around our communities where the risks of wildfire are greatest.
We appreciate and support the overall direction of the proposed rule and most of the specific rule
revisions that have the potential to increase prescribed fire in order to reduce risk of wildfire to
communities, infrastructure and natural resources while providing for increased public and firefighter
safety. We feel these proposed rules constitute a more balanced approach than the current smoke
management rules and encourage you to adopt them.
We support the proposed alignment of Oregon's rules to be more consistent with the EPA's 24-hour
National Ambient Air Quality Standard (NAAQS) for PM2.5 as a science based approach to public policy.
We support the use of the NAAQS (and the proposed buffer below a NAAQS exceedance) to define smoke
intrusions and protect public health in communities and Smoke Sensitive Receptor Areas (SSRAs).
However, we do not support a new 1 hour threshold in the proposed Smoke Management Rules
because 1) the agencies have not supplied the scientific foundation justifying the need for the proposed
1 hour threshold to protect public health and 2) this 1 hour standard will severely limit burning where
1300 NW Wall Street Bend, Or 97703
(541) 388-6571 @ boarrd@deschutes .org @ www.deschutes.org
we need to accomplish it most, next to communities. We see the 1 hour threshold as a step backwards
to more restrictive regulation that runs in direct opposition of the documented need, and our ongoing
efforts locally, to increase and accelerate the use of prescribed fire in strategic locations immediately
around communities in order to create a buffer from wildfire impacting those communities. In order to
accomplish this burning we need a smoke management plan that allows for short duration, light
intensity smoke in order to accomplish those burns which would not be allowed with a 1 hour
threshold.
Should the 1 hour threshold be included in the final version of the rules, our support for the rule
package as a whole is contingent on inclusion of the proposed exemption process for those
communities with a proactive communication and mitigation strategy. The exemption process is
absolutely integral to the proposed rules if the one hour standard remains in the final version of the
rules, because without it our communities, infrastructure, natural resources, public, and firefighters will
remain at risk in the face of increasingly severe wildfires. An outreach and mitigation strategy is
already being implemented in Deschutes County and across Central Oregon in cooperation with a wide
array of partner agencies, including those focused on public health and air quality, to serve the public
by providing important information and suggested strategies they can use to protect themselves when
prescribed fire and wildfire smoke is in the air.
The science on fuel treatment effectiveness is clear, thinning followed by prescribed fire has been
shown to significantly reduce future wildfire severity, even under extreme fire weather conditions.
Each year we wait to enact these critical changes to the state's smoke management rules is another
year we remain vulnerable. We need to act now to change the Smoke Management Plan. The fire -
prone dry forests of central Oregon will burn sooner or later. Our choice is when and how they will
burn: in a controlled way during carefully planned and implemented prescribed fire or during out -of -
control wildfires. We urge you to move forward with these proposed changes.
Deschutes County Board of Commissioners
Anthony DeBone, Chair
Philip G. Henderson, Vice -Chair
Tammy Baney, Commissioner
Oregon Department of Environmental Quality
July 18, 2018
State of orec")
Notice of Proposed Rulemaking
�dor
Environmental
awifty
Amendments to Oregon Smoke
Management Plan and the Oregon
State Implementation Plan for Air Quality
Table of Contents
Introduction................................................................................................................
2
Briefhistory................................................................................................................
3
Overview....................................................................................................................
6
Statementof need....................................................................................................10
Rules affected, authorities, supporting documents..................................................11
FeeAnalysis............................................................................................................12
Statement of fiscal and economic impact.................................................................13
Federalrelationship.................................................................................................
15
LandUse.................................................................................................................16
Stakeholder and public involvement........................................................................
17
Public notice and hearings.......................................................................................
18
Draft Rules - With Edits Highlighted.........................................................................
22
Draft Rules — With Edits Incorporated......................................................................
23
ODF Draft Rules - With Edits Highlighted................................................................
24
ODFFiscal Impact Statement..................................................................................
56
DIRECTIVE 07/14 1-4-1-601 - OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM......................................................................
58
1
Introduction
DEQ is seeking comments on proposed amendments to the Oregon Smoke Management Plan,
operated by the Oregon Department of Forestry, and Environmental Quality Commission
adoption of these amendments into the Oregon Clean Air Act State Implementation Plan, as a
revision to OAR 340-200-0040. Associated with this proposal, DEQ is proposing to approve
these plan amendments under ORS 477.013 and to submit them to EPA to be incorporated into
the federally -approved SIP.
Background
The Oregon Department of Forestry (ODF) and DEQ recently reviewed the Oregon Smoke
Management Plan to evaluate the effectiveness of the smoke management program. As a result,
ODF and DEQ are proposing changes to the plan under their respective authority:
• ODF is proposing amendments to their smoke management rules under OAR 629-048
and Operational Guidance for the Oregon Smoke Management Program, directive 1-4-1-
601, which together comprise the plan.
• To incorporate ODF's amendments into the federally approved Oregon Clean Air Act
State Implementation Plan, DEQ proposes amending OAR 340-200-0040.
Short summary
About every five years, ODF conducts a periodic plan review with an advisory committee and
DEQ participation. The advisory committee met five times during 2017 and 2018. Main
elements of Committee recommendations and input from the ODF Board of Forestry are the
basis for ODF's proposed amendments to the Oregon Smoke Management Plan:
1. Edits to the language of the Smoke Management Plan Objectives;
2. Revisions to the definition of smoke intrusion (OAR 629-048-0005) to include a one-
hour threshold at or above 70 ug/m3 and a 24 hour average at or above 26 micrograms
per cubic meter, measured midnight to midnight on the first day of smoke entrance into a
community;
3. Adding a "Smoke incident" definition;
4. Inclusion of a Community Response Plan and Exemption Request;
5. Modify the Special Protection Zone (SPZ) requirements for Medford, Lakeview, Klamath
Falls, and Oakridge area to better fit the natural ridgelines and features of the areas;
6. Adding an alternative to burning recommendation of removing or minimizing large fuel
2
concentrations and heavy fuel loadings;
7. Other miscellaneous revisions to ODF rules governing the Oregon Smoke Management
Plan.
Brief history
ODF conducts prescribed forest burning in Oregon to eliminate unwanted forest debris, restore
forest health, and reduce the potential for major wildfires. Smoke from this burning can
occasionally pose a risk to public health and result in air quality levels exceeding the federal air
quality standard for fine particulate matter also called PM2.5. Even brief exposures to smoke can
cause health problems for persons with asthma, emphysema, congestive heart disease and other
existing medical conditions. The elderly, pregnant women and young children are especially high
risk groups.
State law ORS 477.013 directs ODF to develop a smoke management plan for prescribed forestry
burning in Oregon and to promulgate rules to carry out this plan. Consistent with the law, ODF
developed the Oregon Smoke Management Plan, which consists of rules under OAR 629-048 and
the Operational Guidance for the Oregon Smoke Management Program in directive 1-4-1-601. The
objective of the smoke management program is to maximize burning opportunities, reduce the risk
of wildfire, and minimize smoke impacts on the public.
As directed under state law, ODF adopts all rules associated with the plan through their Board of
Forestry. State law ORS 477.013 does provide DEQ with joint approval authority of the plan and
cites the need to "meet the air quality objectives of the federal Clean Air Act". To ensure
prescribed burning meets the federal Clean Air Act, DEQ previously adopted the plan into the
Oregon Clean Air Act State Implementation Plan as provided in DEQ rule OAR 340-200-0040,
and any changes to the Oregon Smoke Management Plan require DEQ approval as a State of
Oregon Clean Air Act Implementation Plan revision.
ORS 477.552 states the need to "improve the management of prescribed burning as a forest
management and protection practice" and to "minimize emissions from prescribed burning
consistent with the air quality objectives of the federal Clean Air Act and the State of Oregon State
Implementation Plan." In order to improve the management of prescribed burning, every five years
DEQ and ODF conduct a review of the plan to evaluate the effectiveness of the smoke
management program and modify rules as appropriate.
More information
Information about this rulemaking is on this rulemaking's web page: Smoke Management 2018
Public Hearings
DEQ will hold public hearings on this rulemaking as detailed below.
3
How to comment on this rulemaking proposal
DEQ is asking for public comment on the proposed rules. Anyone can submit comments and
questions about this rulemaking. A person can submit comments through an online web page, by
regular mail or at the public hearing.
Comment deadline
DEQ will only consider comments on the proposed rules that DEQ receives by 4 p.m., on
August 31 Sc
Submit comment online
Smoke Management 2018 Comment Page
Note for public university students:
ORS 192.501(29) allows Oregon public university and OHSU students to protect their university
email addresses from disclosure under Oregon's public records law. If you are an Oregon public
university or OHSU student you may omit your email address when you complete the online
form to submit a comment.
By mail
Oregon DEQ
Attn: Rachel Sakata
700 NE Multnomah St., Suite 600
Portland, OR 97232
At hearings in August 2018 at the following locations
DEQ invites you to attend one of the public hearings listed below. The presiding hearing officer
will provide a brief presentation of the proposal before inviting your spoken or written comment.
August 211t, 7 PM — 8:30 PM
OSU Extension Service Meeting Room
10507 N. McAlister Rd., La Grande
August 23rd, 7 PM — 8:30 PM
Oregon Institute of Technology Campus,
CU, Mt Thielson Room,
3201 Campus Dr., Klamath Falls
August 291h, 7 PM — 8:30 PM
Smullin Health Education Center
2825 E Barnett Rd, Medford
August 22nd, 7 PM — 8:30 PM
Deschutes County - Deschutes Services Center
Barnes and Sawyer Room
1300 NW Wall St, Bend
August 28th, 7 PM — 8:30 PM
DEQ Office, Willamette Conference Room,
165 East 7th Avenue, Suite 100, Eugene
Teleconference Call-in Number: 888-278-0296
Teleconference Participant ID: 8040259
M
Instructions for joining webinar or teleconference: Webinar instructions
Sign up for rulemaking notices
Get email or text updates about this rulemaking by signing up through this link:
Smoke Management 2018 Rulemaking Email List;
or on the rulemaking web site: Smoke Management 2018.
Get email or text updates about other, future DEQ rulemaking by signing up through this link:
DEQ Email Notice List.
What will happen next?
DEQ will include a written response to comments in a staff report DEQ will submit to the
Environmental Quality Commission. DEQ may modify the rule proposal based on the
comments.
Present proposal to the EQC
Proposed rules only become effective if the Environmental Quality Commission adopts them.
DEQ plans to present the proposed rules to the commission for a decision or information at its
meeting in November 2018.
Accessibility information
You may review copies of all documents referenced in this announcement at:
Oregon Department of Environmental Quality
700 NE Multnomah St., Suite 600
Portland, OR 97232
To schedule a review of all websites and documents referenced in this announcement, call Peter
Brewer, Bend, at 541-633-2004 (800-452-4011, ext. 5622 toll-free in Oregon).
Please notify DEQ of any special physical or language accommodations or if you need
information in large print, Braille or another format. To make these arrangements, contact DEQ,
Portland, at 503-229-5696 or call toll-free in Oregon at 1-800-452-4011, ext. 5696; fax to 503-
229-6762; or email to deg infogdeq. state. or. us. Hearing impaired persons may call 711.
Overview
Short summary
DEQ proposes the Oregon Environmental Quality Commission approve the proposed rules
for incorporation into the Oregon Clean Air Act State Implementation Plan and submittal to
the U.S. Environmental Protection Agency for its approval under the federal Clean Air Act.
History
ODF conducts prescribed forest burning in Oregon to eliminate unwanted forest debris, restore
forest health, and reduce the potential for major wildfires. Each year the ODF burns
approximately 150,000 acres of Oregon forests through the practice of prescribed burning.
Smoke from this burning can occasionally pose a risk to public health and result in air quality
levels exceeding the federal air quality standard for fine particulate matter also called PM2.5.
Even brief exposures to smoke can cause health problems for persons with asthma,
emphysema, congestive heart disease and other existing medical conditions. The elderly,
pregnant women and young children are especially high-risk groups. Smoke from forest
burning also affects visibility in national parks and wilderness areas, as well as general outdoor
recreation activities.
State law ORS 477.013 directs ODF to develop a smoke management plan for prescribed
forestry burning in Oregon and to promulgate rules to carry out this plan. Consistent with the
law, ODF developed the Oregon Smoke Management Plan, which consists of rules under OAR
629-048 and the Operational Guidance for the Oregon Smoke Management Program in
directive 1-4-1-601. ODF implements the plan through a smoke management program for
prescribed burning on federal, state and private forestland.
Adopted as a regulatory program in 1972, the objective of the smoke management program is
to maximize burning opportunities, reduce the risk of wildfire, and minimize smoke impacts on
the public. Most of the larger cities and heavily populated areas in Oregon are designated as
Smoke Sensitive Receptor Areas by ODF, and have greater restrictions on prescribed burning
to prevent smoke intrusions. ODF's smoke management office in Salem conducts daily
weather forecasts to determine areas in the state suitable for forestry burning, then issues daily
burning instructions for those areas, that include size limits in tons, how far apart to space the
burning and distance from Smoke Sensitive Receptor Areas. The forest district level makes the
actual decision on which units to burn based on the burning instructions. Each burn unit has a
burn plan and pays burn fees. After burning, the district reports back to State Forestry in Salem
on the burning accomplished.
As directed under state law, ODF adopts all rules associated with the plan through their Board
0
of Forestry. State law ORS 477.013 does provide DEQ with joint approval authority of the plan
and cites the need to "meet the air quality objectives of the federal Clean Air Act". To ensure
prescribed burning meets the federal Clean Air Act, DEQ previously adopted the plan into the
Oregon Clean Air Act State Implementation Plan as provided in DEQ rule OAR 340-200-
0040, and any changes to the Oregon Smoke Management Plan require DEQ approval as a
State of Oregon Clean Air Act Implementation Plan revision.
ORS 477.552 states the need to "improve the management of prescribed burning as a forest
management and protection practice" and to "minimize emissions from prescribed burning
consistent with the air quality objectives of the federal Clean Air Act and the State of Oregon
State Implementation Plan." In order to improve the management of prescribed burning, every
five years DEQ and ODF conduct a review of the plan to evaluate the effectiveness of the
smoke management program. The last plan review was in 2012.
Regulated parties ODF's proposed rulemaking primarily affects private forest landowners, and
state and federal land managers who conduct prescribed burning under the Oregon Smoke
Management Plan. DEQ's proposed amendment to OAR 340-200-0040 incorporates ODF
changes into State of Oregon Clean Air Act Implementation Plan, and does not change the
regulated parties.
Proposed Amendments to the Oregon Smoke Management Plan under ODF
Rule OAR 629-048
About every five years, ODF conducts a periodic plan review with an advisory committee
and DEQ participation. For the most recent review, ODF convened the Smoke Management
Review Committee that met five times during 2017 and 2018. Committee recommendations
and input from the ODF Board of Forestry are the basis for ODF's proposed amendments to
the Oregon Smoke Management Plan. The ODF proposal is undergoing the opportunity for
public review and comment at the same time as the DEQ proposal and through a parallel
rulemaking process. Highlights of the Committee's recommendation and additional
recommendations by the Board of Forestry include:
1. Edit the language of the Smoke Management Plan Objectives to read:
a. Minimize smoke emissions resulting from prescribed burning as described by
ORS 477.552.
b. Provide maximum opportunity for essential forestland burning;
c. Protect public health by avoiding intrusions;
d. Coordinate with other state smoke management programs;
e. Comply with state and federal air quality and visibility requirements; and
f. Promote the further development of techniques to minimize emissions by
encouraging cost-effective utilization of forestland biomass, alternatives to
burning, and emission reduction techniques.
7
2. Revise the definition of smoke intrusion (OAR 629-048-0005) to include a one-hour
threshold at or above 70 ug/m3 and a 24 hour average at or above 26 micrograms per
cubic meter, measured midnight to midnight on the first day of smoke entrance into a
community;
3. Adding a "Smoke incident" definition which means the verified entrance of smoke
from prescribed burning into a Smoke Sensitive Receptor Area (SSRA) at levels
below a smoke intrusion, other areas sensitive to smoke, or a community other than
an SSRA.
4. Inclusion of a Community Response Plan and Exemption Request:
With the potential for an increase in the amount of prescribed burns and resulting
smoke impacts to communities, a communication framework to inform vulnerable
SSRAs about the impact of prescribed burning smoke and how a community can know
when they may be impacted by it. These communities will be encouraged to develop a
response plan to notify their citizens of potential smoke impacts and how they can
reduce their exposure.
a. ODF Salem headquarters will develop and distribute a communication
framework that will include at least the: (1) purpose and importance of
prescribed burning, (2) health risks of wildfire and prescribed fire smoke, (3)
how smoke sensitive receptor areas (SSRA designated communities) residents
can find out about daily burn plans, and (4) notification of potential prescribed
burn smoke impacts.
b. ODF and DEQ will recommend that SSRAs which have experienced repeated
smoke incidents and intrusions develop a community response plan lead by the
local health department, and in coordination with the local ODF or federal
forest district office on how to respond when notified that prescribed burning
smoke may enter their community.
c. Communities that develop a community response plan may request an
exemption to the one-hour intrusion threshold through their local governing
body and County Commission. The request for exemption will be considered
for approval by ODF and DEQ under the advisement of Oregon Health
Authority.
5. For Special Protection Zone (SPZ) requirements adopted in 1992 to provide extra
smoke management protection during the winter months for communities that
exceeded federal air quality health standards:
a. Modify the SPZ for the Medford, Lakeview, Klamath Falls, and Oakridge area
to have the SPZ boundaries better fit the natural ridgelines and features of the
areas impacted instead of straight boundaries across the varied landscape. The
proposed revised SPZs will better protect the areas by conforming to the
natural boundaries of the respective air basins. Inside the boundary, prescribed
burning would continue to follow the daily green, yellow, and red woodstove
restrictions. Outside the boundary, prescribed burning would be prioritized to
reduce burning on "red" woodstove days, by only allowing smaller burn units
that are farther away from the areas.
6. Adding an alternative to burning recommendation of removing or minimizing large
fuel concentrations and heavy fuel loadings to minimize smoldering; and
7. Other miscellaneous revisions to the ODF rules concerning the Oregon Smoke
Management Plan.
Regulated parties
The proposed amendment of Oregon Administrative Rule 340-200-0040 to incorporate the
Oregon Smoke Management Plan into the State of Oregon Clean Air Act Implementation
Plan does not change the regulated parties.
Request for other options
During the public comment period, DEQ requests public comment on whether to consider
other options for achieving the rules' substantive goals while reducing the rules' negative
economic impact on business and negative impacts on people in areas of potential exposure
to smoke from prescribed fire activities.
D
Statement of need
What need would the proposed rule address?
The Oregon Smoke Management Plan consists of both ODF-developed rules under OAR
629-048, and guidance under directive 1-4-1-601, Operational Guidance for the Oregon
Smoke Management Program. State law (ORS 477.013) requires the plan and any changes to
the plan be approved by both the State Forester and DEQ. In order to ensure prescribed
burning meets the federal Clean Air Act, the EQC previously adopted the plan into the
Oregon Clean Air Act State Implementation Plan (SIP), under OAR 340-200-0040, and EPA
incorporated the plan into the federally -approved SIP. When the plan is amended, the EQC
must adopt the change into the SIP by amending OAR 340-200-0040. DEQ then would
submit this SIP revision to EPA for approval and incorporation into the federally -approved
SIP.
How would the proposed rule address the need?
The proposed rulemaking would adopt changes to the Oregon Smoke Management Plan into
the Oregon Clean Air Act State Implementation Plan, and thereby meet DEQ's responsibility
to maintain compliance with the Clean Air Act.
How will DEQ know the rule addressed the need?
If the EQC approves this rulemaking, DEQ would submit the amended plan to EPA as a
revision to the federally approved State Implementation Plan and OAR 340-200-0040. DEQ
will know the need has been addressed when EPA reviews and approves the changes to the
Oregon Clean Air Act State Implementation Plan.
IN
Rules affected, authorities, supporting documents
Lead division
Air Quality
Program or activity
Planning Section, Smoke Management Program
Chapter 340 action
Amend - OAR
340-200-0040
Statutory authority - ORS
468.020 468A
Statute implemented - ORS
468A.035 468A.135
Other authority
ORS 477.013, 477.552,477.554, and 183.335(2)(b)(C)
Documents relied on for rulemaking
Document title
Document location
OAR 629-048-00 1 through 629-048-0500
https://secure.sos.state.or.us/oard/view.action?rul
Number --629-048-0001
Proposed Amended ODF Rules: OAR 629-
Provided on page 24 of this document
048-0001, 629-048-0005, 629-048-0010, 629-
048-0020, 629-048-0110, 629-048-0120, 629-
048-0140, 629-048-0150, 629-048-0200, 629-
048-0210, 629-048-0220, 629-048-0230, 629-
048-0310,629-048-0320,629-048-0450 and
629-048-0500 Proposed New ODF Rules:
OAR 629-048-0021, 629-048-0135, 629-048-
0137,629-048-0180
Operational Guidance for the Oregon Smoke
Provided on page 58 of this document.
Management Program — Directive 1-4-1-601
11
Fee Analysis
DEQ's rulemaking does not involve fees. ODF's rulemaking makes a clarification to bum
fees for different types of bum treatments. See ODF proposed rule amendments at the end of
this document.
12
Statement of fiscal and economic impact
Fiscal and Economic Impact
This proposed DEQ rulemaking does not have a fiscal or economic impact on the public,
units of local government, or state agencies. This proposal would adopt ODF amendments
to the Oregon Smoke Management Plan into the Oregon Clean Air Act State
Implementation Plan (SIP), as referenced in DEQ rules under OAR 340-200-0040. This
document addresses the fiscal and economic impact of the EQC adopting into the SIP the
plan amendments approved by ODF. ODF has prepared a similar document that addresses
the fiscal and economic impact of the plan amendments they are proposing to adopt, as part
of this joint rulemaking effort. The ODF fiscal impact statement is attached at the end of this
document.
Statement of Cost of Compliance
This proposed rulemaking does not have any significant economic effect on businesses nor
will small businesses incur any costs of compliance because it is an administrative action
whereby the EQC would adopt ODF plan amendments into the SIP. For a description of the
economic effects and costs of compliance of ODF's rulemaking, see the ODF fiscal impact
statement attached.
Impact on other government entities other than DEQ
a. Local governments: No significant impact
b. State agencies: No significant impact
Public
There is no significant fiscal or economic impact on the general public.
Large businesses - businesses with more than 50 employees
This proposal would have no significant fiscal or economic impact on large businesses.
Small businesses — businesses with 50 or fewer employees
a. Estimated number of small businesses and types of businesses and
industries with small businesses subject to proposed rule.
This proposal does not affect small businesses.
13
b. Projected reporting, recordkeeping and other administrative activities,
including costs of professional services, required for small businesses to
comply with the proposed rule.
As this proposal does not affect small businesses, no additional activities apply to small
businesses.
c. Projected equipment, supplies, labor and increased administration required
for small businesses to comply with the proposed rule.
As this proposal does not affect small businesses, small businesses do not need additional
resources to comply.
d. Describe how DEQ involved small businesses in developing this proposed
rule.
As this proposal does not affect small businesses, small businesses were not involved in
developing this proposal.
Documents relied on for fiscal and economic impact
DEQ did not rely on any documents to develop this Statement of fiscal and economic
impact other than the fiscal impact developed by ODF for their proposed rules, ODF's
proposed rules themselves, and implementing Directive. ODF's fiscal impact, proposed
rules, and implementing Directive are included in the supporting materials section of this
document starting on page 25.
Advisory committee
DEQ did not appoint an advisory committee, however, ODF did convene the Smoke
Management Review Committee in the development of their changes to the Smoke
Management Program rules. ODF relied on this committee for evaluating economic impacts
of its separate rulemaking. The amendments being proposed to the plan are based on
recommendations developed by this committee.
Housing cost
As ORS 183.534 requires, DEQ evaluated whether the proposed rules would have an effect
on the development cost of a 6,000 -square -foot parcel and construction of a 1,200 -square -
foot detached, single-family dwelling on that parcel. DEQ determined the proposed rules
would have no effect on the development costs because the proposed plan amendments and
adoption into the SIP does affect housing or related costs.
14
Federal relationship
Relationship to federal requirements
ORS 183.332, 468A.327 and OAR 340-011-0029 require DEQ to attempt to adopt rules that
correspond with existing equivalent federal laws and rules unless there are reasons not to do
so.
The proposed rules are not different from or in addition to federal requirements. By
adopting ODF's plan amendments into the SIP, this rule proposal does not impose
requirements different from or in addition to federal requirements. This action would ensure
the Oregon Smoke Management Plan continues to comply with federal requirements in the
Clean Air Act and is federally enforceable.
What alternatives did DEQ consider if any?
Since this action is necessary to comply with the requirements of the Clean Air Act, DEQ
did not consider other options for this proposal.
15
Land Use
Land -use considerations
In adopting new or amended rules, ORS 197.180 and OAR 340-018-0070 require DEQ to
determine whether the proposed rules significantly affect land use. If so, DEQ must explain
how the proposed rules comply with state wide land -use planning goals and local
acknowledged comprehensive plans.
Under OAR 660-030-0005 and OAR 340 Division 18, DEQ considers that rules affect land
use if:
• The statewide land use planning goals specifically refer to the rule or program, or
• The rule or program is reasonably expected to have significant effects on:
o Resources, objectives or areas identified in the statewide planning goals, or
o Present or future land uses identified in acknowledged comprehensive plans
To determine whether the proposed rules involve programs or actions that affect land use,
DEQ reviewed its Statewide Agency Coordination plan, which describes the DEQ programs
that have been determined to significantly affect land use. DEQ considers that its programs
specifically relate to the following statewide goals:
Goal Title
5 Open Spaces, Scenic and Historic Areas, and Natural Resources
6 Air, Water and Land Resources Quality
9 Ocean Resources
1 I Public Facilities and Services
16 Estuarial Resources
Statewide goals also specifically reference the following DEQ programs:
• Nonpoint source discharge water quality program — Goal 16
• Water quality and sewage disposal systems — Goal 16
• Water quality permits and oil spill regulations — Goal 19
Determination
DEQ determined that this rulemaking and the proposed revision to the SIP under OAR 340-
200-0040 does not affect land use under OAR 340-018-0030 or DEQ's State Agency
Coordination Program.
16
Stakeholder and public involvement
Advisory committee
DEQ did not convene an advisory committee. However, ODF convened the Smoke
Management
Review Committee. The committee met five times in 2017 and 2018. Both ODF and DEQ
relied on this committee for evaluating the smoke management program. Committee
recommendations are the basis for the proposed plan amendments. The Committee's
primary focus was to review the smoke management policy and ensure program
implementation is balanced in achieving the two program goals (ORS 477.552):
"To improve the management of prescribed burning as a forest management and protection
practice; and
To minimize emissions from prescribed burning consistent with the air quality objectives of
the federal Clean Air Act and the State of Oregon Clean Air Act Implementation Plan
developed by the Department of Environmental Quality. "
The committee included representatives from Oregon local government, public health
agencies and associations, Forestry and Forest Industry Associations, US EPA, USFS,
BLM, Forest Collaboratives and Conservancy, Oregon Tribes, Lane Regional Air Pollution
Authority, a Citizen at Large and the Sierra Club.
Environmental Quality Commission (EQC) prior involvement
DEQ shared information with the EQC about this rulemaking through an information item
the at their September 13-14, 2017 meeting in Bend, and at their May 11, 2018 meeting in
The Dalles.
17
Public notice and hearings
Public notice
DEQ provided notice of the proposed rulemaking and rulemaking hearings on August 21St _
August 29th, 2018 by:
• On July 181h, 2018 Filing notice with the Oregon Secretary of State for publication in the
August 2018 Oregon Bulletin;
• Notifying the EPA by mail;
• Posting the Notice, Invitation to Comment and Draft Rules on the web page for this
rulemaking, located at: Smoke Management 2018,
• Emailing approximately 10,529 interested parties on the following DEQ lists through
GovDelivery:
• Rulemaking
• Smoke 2018
• Air Quality Maintenance Plans
• DEQ Public Notices
• Emailing the following key legislators required under ORS 183.335:
• Senate President Peter Courtney
• Speaker of the House Tina Kotek
• Senator Michael Dembrow
• Representative Ken Helm
• Representative Brian Clem
• Postings on Twitter and Facebook
• Posting on the DEQ event calendar: DEQ Calendar
Public hearings
DEQ plans to hold five public hearings. The details are listed below. Anyone can attend a
hearing in person or teleconference.
DEQ will consider all written comments received at the hearings listed below before
completing the draft rules. DEQ will summarize all comments and respond to comments in
the Environmental Quality Commission staff report.
Hearing 1
Date
21 August 2018
Time
7-8:30 PM
Street Address
OSU Extension Service
10507 N. McAlister Rd
City
La Grande, 97850
Presiding Officer
Michael Orman
Staff Presenter
Peter Brewer
Call-in Phone Number
888-278-0296
Participant ID
8040259
Hearing 2
Date
22 August 2018
Time
7-8:30 PM
Street Address
Deschutes Service Building
1300 NW Wall St
Barnes and Sawyer Meeting Room
City
Bend, 97701
Presiding Officer
Michael Orman
Staff Presenter
Peter Brewr
Call-in Phone Number
888-278-0296
Participant ID
8040259
Hearing 3
Date
23 August 2018
Time
7-8:30 PM
Street Address
Oregon Institute of Technology
Campus, CU, Mt Thielson Room,
3201 Campus Dr.
City
Klamath Falls, 97601
Presiding Officer
Michael Orman
Staff Presenter
Michael Orman
Call-in Phone Number
888-278-0296
Participant ID
8040259
Hearing 4
Date
28 August 2018
Time
7-8:30 PM
Street Address
Lane Regional Air Protection Agency
165 East 7th Avenue, Suite 100
City
Eugene, 97401
Presiding Officer
Michael Orman
19
Staff Presenter
Peter Brewer
Call-in Phone Number
888-278-0296
Participant ID
8040259
Hearing 5
Date
29 August 2018
Time
7-8:30 PM
Street Address
Smullin Health Education Center
2825 E Barnett Rd
City
Medford, 97504
Presiding Officer
Michael Orman
Staff Presenter
Peter Brewer
Call-in Phone Number
888-278-0296
Participant ID
8040259
How to comment on the proposed rules:
Submit comment online
Smoke Management 2018 Comment Page
Note for public university students:
ORS 192.501(29) allows Oregon public university and OHSU students to protect their
university email addresses from disclosure under Oregon's public records law. If you are an
Oregon public university or OHSU student you may omit your email address when you
complete the online form to submit a comment.
By mail
Oregon DEQ
Attn: Emil Hnidey
700 NE Multnomah St, Suite 600
Portland, OR 97232
At the hearing
oft
Close of public comment period
The comment period will close 4 p.m. on August 3 Vh, 2018.
Accessibility Information
You may review copies of all documents referenced in this announcement at:
Oregon Department of Environmental Quality
700 NE Multnomah St., Ste. 600
Portland, OR, 97232
To schedule a review of all websites and documents referenced in this announcement,
call Peter Brewer, Bend, 541-633-2004. (800-452-4011, ext. 5622 toll-free in Oregon).
Please notify DEQ of any special physical or language accommodations or if you need
information in large print, Braille or another format. To make these arrangements, contact
DEQ, Portland, at 503-229-5696 or call toll-free in Oregon at 1-800-452-4011, ext. 5696;
fax to 503-229-6762; or email to deginfo@deq.state.or.us. Hearing impaired persons may
call 711
21
Draft Rules - With Edits Highlighted
Key to Identifying Chanqed Text:
Deleted Text
New/Hiserted text
DEPARTMENT ENT ENVIRONMENTAL UALiTY
Division 200
GENERAL AIR POLLUTION PROCEDURES AND DEFINITIONS
340-200-0040
State of Oregon Clean Air Act Implementation Plan
(1) This implementation plan, consisting of Volumes 2 and 3 of the State of Oregon Air
Quality Control Program, contains control strategies, rules and standards prepared by DEQ
and is adopted as the State Implementation Plan (SIP) of the State of Oregon under the
FCAA, 42 U.S.C.A 7401 to 7671q.
(2) Except as provided in section (3), revisions to the SIP will be made under the EQC's
rulemaking procedures in OAR 340 division 11 of this chapter and any other requirements
contained in the SIP and will be submitted to the EPA for approval. The SIP was last
modified by the EQC on ittly BNovember 15-16, 2018.
(3) Notwithstanding any other requirement contained in the SIP, DEQ may:
(a) Submit to the EPA any permit condition implementing a rule that is part of the federally -
approved SIP as a source -specific SIP revision after DEQ has complied with the public
hearings provisions of 40 CFR 51.102; and
(b) Approve the standards submitted by LRAPA if LRAPA adopts verbatim, other than non -
substantive differences, any standard that the EQC has adopted, and submit the standards to
EPA for approval as a SIP revision.
(4) Revisions to the State of Oregon Clean Air Act Implementation Plan become federally
enforceable upon approval by the EPA. If any provision of the federally approved State
Implementation Plan conflicts with any provision adopted by the EQC, DEQ must enforce
the more stringent provision.
Statutory/Other Authority: ORS 468.020 & 468A
Statutes/Other Implemented: ORS 468A.035 & 468A.135
22
Draft Rules-- With Edits Incorporated
DEARTMEN'r OF ENV IRON MENTAL UAIJ 'ry
Division 200
GENERAL AIR POLLUTION PROCEDURES AND DEFINITIONS
340-200-0040
State of Oregon Clean Air Act Implementation Plan
(1) This implementation plan, consisting of Volumes 2 and 3 of the State of Oregon Air
Quality Control Program, contains control strategies, rules and standards prepared by DEQ
and is adopted as the State Implementation Plan (SIP) of the State of Oregon under the
FCAA, 42 U.S.C.A 7401 to 7671q.
(2) Except as provided in section (3), revisions to the SIP will be made under the EQC's
rulemaking procedures in OAR 340 division 11 of this chapter and any other requirements
contained in the SIP and will be submitted to the EPA for approval. The SIP was last
modified by the EQC on November 15-16, 2018.
(3) Notwithstanding any other requirement contained in the SIP, DEQ may:
(a) Submit to the EPA any permit condition implementing a rule that is part of the federally -
approved SIP as a source -specific SIP revision after DEQ has complied with the public
hearings provisions of 40 CFR 51.102; and
(b) Approve the standards submitted by LRAPA if LRAPA adopts verbatim, other than non -
substantive differences, any standard that the EQC has adopted, and submit the standards to
EPA for approval as a SIP revision.
(4) Revisions to the State of Oregon Clean Air Act Implementation Plan become federally
enforceable upon approval by the EPA. If any provision of the federally approved State
Implementation Plan conflicts with any provision adopted by the EQC, DEQ must enforce
the more stringent provision.
Statutory/Other Authority: ORS 468.020 & 468A
Statutes/Other Implemented: ORS 468A.035 & 468A.135
23
ODF Draft Rules --With Edits Highlighted
Key to Identifying Changed Text:
Deleted Text
New/inserted text
DIVISION 48
SMOKE MANAGEMENT
629-048-0001
Title, Scope and Effective Dates
(1) OAR 629-048-0001 through 629-048-0500 are known as the Smoke Management rules.
(2) The Smoke Management rules apply to prescribed burning of forest fuels for forest
management purposes within any forest protection district in Oregon as described by OAR
629-041-0500 to 629-041-0575. l addition, the Fines apply to f r-esd ra e aside any forest
(3) The Smoke Management rules are effective july 11, 2014, Oct 1, 2018.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0005
Definitions
Unless otherwise defined below, terms used in this rule division shall have the meaning
provided in ORS 477.001:
(1) "Alternatives to burning" means any forest management activity that reduces the volume
of material, rather than actually being burned.
(2) "Board" means the State Board of Forestry.
(3) "Burn boss" means the person, authorized by the owner (may include the owner) or a
federal land management agency to conduct and make decisions regarding the practices
24
involved in conducting a prescribed burning operation and who is responsible for
compliance with all requirements under this rule division and related laws.
(4) "Burn registration" means the act or product of notifying the forester to the required
level of detail, of intent to conduct a prescribed burning operation as required by OAR 629-
048-0300.
(5) "Class I Area" means national parks and certain wilderness areas designated by
Congress in 1977 as federal Class I Areas that are subject to visibility protection under the
Environmental Protection Agency's Regional Haze Rule and the federal Clean Air Act.
Class I Areas in Oregon include: Crater Lake National Park, Diamond Peak Wilderness,
Eagle Cap Wilderness, Gearhart Mountain Wilderness, Hells Canyon Wilderness,
Kalmiopsis Wilderness, Mountain Lakes Wilderness, Mount Hood Wilderness, Mount
Jefferson Wilderness, Mount Washington Wilderness, Strawberry Mountain Wilderness and
Three Sisters Wilderness.
(6) "Class 1 forestland" has the same meaning as given in ORS 526.324 to "timber class"
and includes all forestland primarily suitable for the production of timber.
(7) "Class 2 forestland" has the same meaning as given in ORS 526.324 to "timber and
grazing class" and includes all forestland primarily suitable for joint use for timber
production and the grazing of livestock, as a permanent or semi-permanent joint use, or as a
temporary joint use during the interim between logging and reforestation.
(8) "Class 3 forestland" has the same meaning as given in ORS 526.324 to "agricultural
class" and includes all forestland primarily suitable for grazing or other agricultural use.
(9) "Department" means the State For -est++ reel mime„+ Oregon Department of Forestry
(ODF).
(10) "Eastern Oregon" means the eighteen Oregon counties lying east of Multnomah,
Clackamas, Marion, Linn, Lane, Douglas, and Jackson Counties.
(11) "Emission reduction technique" means any forest management activity that allows for a
lower volume of particulate to be produced from a given volume of burning.
(12) "Emissions" means the gaseous and particulate combustion products in smoke resulting
from burning forest fuels.
(13) "Federal land management agency" means the United States Department of
Agriculture's Forest Service; the United States Department of the Interior's Bureau of Land
Management, National Park Service, United States Fish and Wildlife Service, or Bureau of
Indian Affairs; or any other federal agency that may conduct prescribed burning within a
forest protection district.
25
(14) "Field administrator" means an ODF employee of the State Forestry Depaftmen , a
forest protective association, or federal land management agency who has, among other
responsibilities, an official role in determining whether a prescribed burn should proceed,
continue or be suspended.
(15) "Forester" means the State Forester or authorized representative including but not
limited to fire wardens appointed under ORS 477.355.
(16) "Forest fuels" means any flammable woody material, grass or other plant matter that
may constitute a wildfire hazard or that is intended for disposal by prescribed burning, but
does not include products that have had secondary processing such as boards, posts or paper.
(17) "Forest protection district" means an area of forestland designated by the State Forester
for protection from fire pursuant to ORS 477.225. Detailed descriptions of the forest
protection districts may be found in OAR 629-041-0500 to 629-041-0575.
(18) "Ground level" means at or close to the surface of the earth such that smoke at "ground
level" could be inhaled by persons going about their normal business, in or out of doors. It
does not include smoke that passes overhead when prescribed burning is conducted in
accordance with the Smoke Management forecast and instructions.
(19) "Level 1 regulation" means the program of requirements that apply to all forestland
managed by a federal land management agency statewide, and all Class 1 forestland in
western Oregon within a forest protection district (OAR 629-048-0100(2). These
requirements include burn registration at least seven days in advance (OAR 629-048-0300),
fee administration (OAR 629-048-0310), compliance with Smoke Management forecast
instructions (OAR 629-048-0230), and reporting of accomplishments (OAR 629-048-0320).
(20) "Level 2 regulation" means the program of requirements that apply to all non-federal
forestlands in eastern Oregon, and all Class 3 forestland in western Oregon within a forest
protection district (OAR 629-048-0100(3). These requirements include burn registration
(OAR 629-048-0300) and reporting of accomplishments (OAR 629-048-0320).
(21) "Mop -up" means action, usually involving the application of water or other means to
eliminate heat, remove fuel or reduce the supply of oxygen, sufficient to make a fire safe or
reduce residual smoke.
(22) "Other areas sensitive to smoke" means specific recreation areas not listed as SSRAs in
OAR 629-048-0140 but that are intended to receive consideration for focused forecasting
attention for limited times during periods of heavy use by the public such as coastal beaches
on holidays and other areas during special events.
(23) "Prescribed burning" means the use of fire ignited as a planned management activity on
forestland to meet specific objectives involving the reduction or removal of forest fuels.
Prescribed burning does not include impromptu fires ignited for purposes such as warming
26
fires, burn -out or backfire operations used in wildfire suppression, or lightning ignited
"wildland fire use" as practiced by federal land management agencies.
(24) "Regional haze" means air pollution transported over long distances into Class I Areas
that reduces visibility in those areas.
(25) "Residual smoke" means smoke produced after the initial fire has passed through the
fuel.
(2-926) "Smoke Sensitive Receptor Area or SSRA" means an area designated for the highest
level of protection under the Smoke Management Plan, as described and listed in OAR 629-
048-0140.
(2-627) "Smoke intrusion" means the verified entrance of smoke from prescribed burning
into an Smoke S_nsitive'_?eeepter "f_w SSRA at ground level that meets or exceeds 70
micrograms per cubic meter for any one-hour period and/or averages at or above 26
micrograms per cubic meter for a 24-hour period, measured from midnight to
midnight beginning on the first day of smoke entrance.
(28) "Smoke incident" means the verified entrance of smoke from prescribed burning
into an SSRA at levels below a smoke intrusion (see "Smoke intrusion" definition),
other areas sensitive to smoke, or a community other than an SSRA.
(2-729) "Smoke Management forecast unit" means any or all of the persons appointed or
assigned by the State Forester to develop and interpret weather forecasts and produce
Smoke Management instructions, usually operating from the department headquarters in
Salem.
(2330) "Underburning" means low -intensity prescribed burning to maintain forest health
through reduction of fuels in the understory of a forest stand while maintaining the overstory
stand characteristics.
(30) "Verified smoke '.1 t" means an eatr-anee of 't1 a b n smoke into
tl than . SSRA, estig to by the forester- to:
(a) Validate elaims tha4 smoke > > enter- the afea >at groundlevel;
lIIIr_A iA4; ATf-tcrh. - 1 'A t as E 'L. .a i OAR R 629 048 0110.
(3 1) "Western Oregon" means the eighteen Oregon counties lying west of Hood River,
Wasco, Jefferson, Deschutes and Klamath Counties.
27
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0010
Purpose
(1) ORS 477.013 requires the State Forester and the Department of Environmental Quality
(DEQ) to approve a plan for managing smoke in areas that they are to designate, for the
purpose of maintaining air quality. The plan must designate areas within which all burning
must comply with the plan.
(2) The Smoke Management rules are intended to establish the areas required by ORS
477.013; describe the objectives of the Smoke Management Plan; establish procedures to be
followed in administering prescribed burning; educate the public as to the necessity of
prescribed burning and the measures being taken to protect air quality, public health and
visibility; and to provide enforceable mechanisms to ensure the requirements of the Smoke
Management Plan are met.
(3) The Smoke Management rules, promulgated by the State Forester, together with
Department Directive 1-4-1-601, "Operational Guidance for the Oregon Smoke
Management Program," shall comprise the Smoke Management Plan upon approval by
DEQ and filing with the Secretary of State.
(4) The objectives of the Smoke Management Plan are to:
(a) Minimize smoke emissions resulting from prescribed burning as described by
ORS 477.552; ens ffom b oa to dati, in SSRAsor- of f u ea
sensitive to smoke, and to provide m Aanity far- essential for-estlandbuming
i.;, e
(b) Provide maximum opportunity for essential forestland burning;
(c) Protect public health by avoiding intrusions;
(bd) Coordinate with other state smoke management programs;
(ee) Comply with state and federal air quality and visibility requirements; and
(ef) Promote the r-eduetien of further development of techniques to minimize emissions
by encouraging cost-effective utilization of forestland biomass, alternatives to burning and
alto ,ativo bu pr-aetiees emission reduction techniques.
U-11
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0020
Necessity of Prescribed Burning
(1) All of Oregon's forestlands are flammable can burn under the right conditions of fuel
dryness, heat and wind.
(2) As a part of the natural ecology of forestlands, wildfire is neither necessarily good nor
bad. However, there are a number of undesirable characteristics of unplanned, uncontrolled
fires that are _.___ally _ ,..,r eA b y humans nde _ ble Among these are threats to public
-�' "o _rum=�.
safety, destruction of natural resources and property, and the adverse health effects that
can occur from breathing a significant amount of fine particulate matter associated with
wildfire smoke.
(3) When areas do not experience fire or other means of reducing forest fuels for extended
periods, there is ^ ^r-eate wildfire hazard and -increases. The the -likelihood increases that -if
unplanned ignitions occur, through whatever means, that -the resulting wildfire will burn at
greater intensity and be more difficult to suppress.
(4) Because wildfires typically burn during hotter, drier conditions than those usually
planned for prescribed fires, forest fuels are more completely consumed, producing more
emissions. Also, wildfires often occur during periods of atmospheric stability, ander
atugnatie*-trapping smoke close to the ground where it's more likely to impact humans. a -ad
less J to be `7 y nJ J higher- nr
oA winds.
(5) Prescribed burning is used as a management tool teehnirtte to reduce forest fuels either
as the primary mechanism such as in grass and brush areas for maintenance of grazing, and
underbuming of open forest stands for forest health purposes; or as a secondary fuel
reduction method following thinning or final harvesting. U -Prescribed burning is typically
conducted at a time a fie an when weather conditions •fie allow fine
fuels that more readily ignite and ,.,,f fy fire aer-oss the la*dse pe aro eensomed btA the
while larger fuels are consumed to a lesser degree than in a -wildfire. Resulting emissions are
both -reduced overall, and fner-likely eari4ed intohigher- altitudes and dissipated by hig
level winds, away from e.,...,ent -at ons of people. quickly, before affecting populated areas.
(6) When adequate forest fuel reduction can be achieved economically without
using prescribed burning, been se of other fire asseeiated risks, that choice is usually
favored. Even so, there are often silvicultural or agricultural advantages to prescribed
burning such as site preparation, nutrient cycling and reduction of pests and disease that
may not be achieved by simply removing the forest fuels. For all these reasons described
above, the Legislative Assembly (ORS 477.552) and Board of Forestry have found it
necessary to maintain the viability of -prescribed burning as a forest management practice.
09
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0021
Necessity of Safeguarding Public Health
(1) Excessive smoke, no matter its source, can pose a serious health risk to the public,
especially vulnerable populations.
(2) To help minimize the health risks to the public from prescribed burning, the
program encourages prescribed burning emissions be minimized and smoke intrusions
be avoided.
629-048-0100
Regulated Areas
(1) All lands classified as "forestland" under ORS 526.305 to 526.370 and all forestland
managed by a federal agency regardless of whether or not classified, within a forest
protection district, are subject to regulation of prescribed burning pursuant to ORS 477.013.
The level of regulation may vary according to specific classification; e.g., Class 1, 2 or 3
forestland as described in ORS 526.305 to 526.370.
(2) Class 1 forestland in western Oregon, and all forestland managed by a federal land
management agency statewide, within a forest protection district, is subject to burn
registration at least seven days in advance (OAR 629-048-0300), fee administration (OAR
629-048-0310), compliance with Smoke Management forecast instructions (OAR 629-048-
0230), and reporting of accomplishments (OAR 629-048-0320). The forestlands and
applicable regulations listed in this section may be referred to as "Level 1 regulation."
(3) All other non-federal forestland within a forest protection district, including, but not
limited to, private forestlands in eastern Oregon and Class 3 private forestland in western
Oregon is subject to burn registration (OAR 629-048-0300) and reporting of
accomplishments (OAR 629-048-0320) but is not subject to fee administration or
compliance with smoke management forecast instructions. The forestlands and applicable
regulations listed in this section may be referred to as "Level 2 regulation."
(4) All prescribed burning on forestland within a forest protection district is subject to
suspension of burning by the forester under ORS 477.520 due to conditions such as air
stagnation or fire danger.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
U11
629-048-0110
ChairaeteAzation of Smoke inei,aents or- intrusions Characterization and Response to
Smoke Incidents, Intrusions, and National Ambient Air Quality Standards (NAAQS)
Exceedances
(1)(a) When investigating or collecting information on smoke incidents or intrusions, the
department will attempt to characterize the iffeideR4 or- intfitsion in tefffis of its _fltew t
event as either a smoke
intrusion or a smoke incident as defined in OAR 629-048-0005. To the ox*ofit it ^ffin
feasenably dE) so, the depaftment may also attempt to deten:niae the
of Populate
afea 4F
_ _
,1 (n s"ar-emilesor- aer-es) * stifn4e .f the Y number- of people present
(b) As used in the Smoke Management rules, "smoke intrusion" refers only to ground level
prescribed burning smoke that enters an SSRA at 1 l eveo �. particulate matter values
defined in OAR 629-048-0005(27). N +'' ' t methods a ,los^ ptio s �� i
, �
this Ftile may be applied to the meastir-ement of any smoke ineidefft relevant to the Smoke
M rt Plan.�
(2) When measurements or observations are available, smoke incidents or smoke intrusions
are characterized in the f flow ng m . based on particulate matter values
(averaged over a one-hour period, or a 24-hour periods above the eleanba6k^r-ot1n -.
from midnight to midnight beginning on the first day of smoke entrance.
lett 1.8 x l 0 n u at (Bet s,..,,+ �•
measufemefft of greater- than or- equal to 1.9 x 10 4 B sea but less than or- equal to 4.9 x 10
n B seat; and
(3) The elean air- baekgr-otind is the aver-age nepheloffieter- reading for- the dffee hour-s pr-io
the ineidentor-ifittusion.
(4) When no-nephelemeter data are available, ineident or- ifilftision intensity is ehar-aeter-ized-
based on r-eduetien in visibility (also m,er-aged evef a one hour- per-iod) using standard
Nmienal Weather- Sen4ee visibility obseFva4ion er-iter-ia and a table of r-e"etiaas keyed to
"Operational Cpaidanee for- the Oregon Smoke ManagemeR4 Program." As an e"ffTle_,�
day when baekgr-oundd vissibility has been gr-eatef: than 50 miles, a light in+ensity4neident-ef
iffi-tHqUiS io- 4-;- Ifi-as Fe"eed visibility to greater- than or- e"al to 11. 4 miles; a me defate in4ensity
ineident or ifttpasien has r-edueed visibility to less than 11.4 miles, but gr-eatef.tha-n or- eqtiA
31
(3) When no particulate matter data is available, smoke incidents or smoke intrusions
are determined based on reduction in visibility averaged over a one-hour period using
standard National Weather Service visibility observation criteria and a table of
reductions keyed to various background visibility levels as displayed in Department
Directive 1-4-1-601, "Operational Guidance for the Oregon Smoke Management
Program."
(4) Smoke incidents and intrusions will be documented and used to assess annual
program performance. Department Directive 1-4-1-601 "Operational Guidance for the
Oregon Smoke Management Program" will describe applicable reporting
requirements and actions to be taken.
(5) Smoke intrusions that meet or exceed the 24-hour average PM2.5 value of 35
microgram per cubic meter (NAAQS exceedance) will be reported to DEQ as soon as
possible. Department Directive 1-4-1-601 "Operational Guidance for the Oregon
Smoke Management Program" will describe applicable reporting requirements and
adaptive management actions to be taken if this event occurs.
[ED. NOTE: Department Directive 1-4-1-601 "Operational Guidance for the Oregon
Smoke Management Program." is available online at:
http://www.oregon.gov/ODF/Documents/Fire/smd.pdf]
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0120
Air Quality Maintenance Objectives
(1) When prescribed burning is conducted near iii c4mity-te, but outside communities or
areas designated as SSRAs, the objective of the Smoke Management Plan is lie to minimize
emissions and avoid smoke intrusions into the SSRA.
(2) When prescribed burning is conducted inside an SSRA, the Smoke Management Plan
objective is to use best burn practices and prompt mop -up, as appropriate, along with tight
parameters for burn -site conditions that are intended to vent the main smoke plume up and
out of the SSRA and minimize residual smoke.
(3) In all other instances of prescribed burning it is the intent under the Smoke Management
Plan to minimize the amount and duration of smoke that comes in contact with humans at
*h__ plaees of r-esidenee other- nlaewhere they alive, work, play, exercise or
gather in numbers sueh as to work, eenduet .,i4 ipale .. public events.
32
(4) The first element in minimizing smoke contact is encouraging forestland owners to burn
only those units which cannot otherwise meet forest management objectives in cost-
effective alternative ways such as wood or biomass utilization.
(5) When prescribed burning is used, owners are further encouraged to employ the emission
reduction techniques described in OAR 629-048-0210 to ensure the least emissions
practicable.
(6) In addition to compliance with Smoke Management instructions issued in the daily
forecast and compliance with all conditions of the burn permit required under ORS 477.515,
burn bosses and field administrators are encouraged to closely observe local conditions at
the burn site and to light, manage, . They should suspend lighting if necessary, and mop -up
burns, when appropriate, in a manner that takes into consideration the possible smoke
effects from the main smoke plume or significant residual smoke on residences or
businesses that may be near in elose proximity to the burn site.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0130
Visibility Objectives
(1) It is the intent under the Smoke Management Plan to comply with the Oregon Visibility
Protection Plan (OAR 340-200-0040, Section 5.2).
(2) It is the intent under the Smoke Management Plan to operate in a manner consistent with
the Oregon Regional Haze Plan, including the Enhanced Smoke Management Program
(ESMP) criteria contained in the plan, for the purpose of protecting Class I Area visibility.
These ESMP criteria include:
(a) Actions to minimize emissions;
(b) Evaluation of smoke dispersion;
(c) Alternatives to fire;
(d) Public notification;
(e) Air quality monitoring;
(f) Surveillance and enforcement;
(g) Program evaluation;
33
(h) Burn authorization; and
(i) Regional coordination.
(3) When prescribed burning is conducted outside any Class I Area, an objective of the
Smoke Management Plan is to minimize any smoke that impairs visibility inside the Class I
Area. In addition to compliance with Smoke Management instructions issued in the daily
forecast and compliance with all conditions of the burn permit required under ORS 477.515,
burn bosses and field administrators are encouraged to closely observe local conditions at
the burn site to avoid the main smoke plume entering a Class I Area at ground level.
(4) When prescribed burning is conducted inside a Class I Area, the Smoke Management
Plan objective is to use best practices along with tight parameters for burn -site conditions
that will vent the main smoke plume up and out of the Class I Area and minimize residual
smoke.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0135
Special Protection Zone Requirements
Special Protection Zones (SPZ) have been established around certain
communities (see maps located within Department Directive 1-4-1-601,
"Operational Guidance for the Oregon Smoke Management Program,
Appendix 5) requiring additional protection from particulates. Any burning in
an SPZ, during its protection period, must have the approval of the
meteorologist. These SPZ provisions apply from November 15 through February
15 to the following communities which are particulate matter (PM)
nonattainment and maintenance areas: Klamath Falls, Medford, Oakridge, and
Lakeview.
(1) From November 15 through February 15, prescribed burning in the SPZ is
allowed on "Green" and "Yellow" woodstove days (see OAR 340-262-0800 and
local ordinances for communities listed above) if:
(a) The ODF Smoke Management meteorologist believes there will be minimal
measurable smoke impacts.
(b) Landowners are responsible for intermittent monitoring for at least three
days following ignition to ensure the smoke is not causing an impact. ODF can
waive this provision if it believes monitoring is unnecessary on a specific burn
unit.
(c) Landowners provide a level of mop -up, as directed by ODF, to minimize
34
smoke impacts. Mop -up shall be included as an element of the burn plan.
(d) ODF believes that piles will not produce significant smoke after the third day.
(2) From December 1 through February 15, no prescribed burning is allowed on
"Red" woodstove days in the SPZ. Prescribed burning on "Red" days from
November 15 through 30 is allowed and subject to the same conditions for
"Green" and "Yellow" days as described in section 1(a -d) of this rule.
(3) Burning should be prioritized so units that are smaller and/or further from
the SPZ boundary have higher priority to burn than units larger and/or closer to
the SPZ boundary.
(4) Districts and Forests having jurisdiction in any SPZ will be responsible for
monitoring restrictions in the nonattainment or maintenance area as described in
section 1 and 2 of this rule.
(5) SPZ provisions shall apply as long as the area is in PM nonattainment or is in
maintenance of the PM standard. An SPZ shall be developed by DEQ or Lane Regional
Air Protection Agency (LRAPA) for any newly declared PM nonattainment area, in
consultation with ODF. For areas declared nonattainment from January 1 through
May 31, the new SPZ requirements shall become effective on November 15 in the year
the area is declared nonattainment. If the area is declared nonattainment from June 1
through December 31, the new SPZ shall be effective on November 15 of the following
year.
629-048-0137
SPZ Contin2encv Plan Requirements
In the event communities listed in OAR 629-048-0135; as well as
Eugene/Springfield, Grants Pass, and La Grande maintenance areas; violate the
PN4 stan exceed the 24-hour average PM2.5 National Ambient Air Quality
Standard value of 35 micrograms per cubic meter and prescribed burning is
determined to be a significant contributor, the following contingency plan
requirements shall be implemented:
(1) The SPZ boundary will be expanded to include the area from which
prescribed burning could impact the PM nonattainment or maintenance area.
Any boundary change will be jointly agreed to by ODF and DEQ.
(2) SPZ restrictions will apply from November 1 through March 1, except for
Klamath Falls where they will apply from November 1 through April 1.
(3) The SPZ for Klamath Falls and Lakeview, as well as all future PM
nonattainment or maintenance areas in areas of level 2 regulation under the
Oregon Smoke Management program, shall be subject to burning reporting
requirements of Level l regulation during the time when the SPZ is in effect.
35
(4) ODF and DEQ will take adaptive management steps described in OAR 629-
048-0110(5).
[ED. NOTE: Language in OAR 629-048-0135 and 0137 was previously in the
Department Directive 1-4-1-601 "Operational Guidance for the Oregon Smoke
Management Program."]
629-048-0140
Smoke Sensitive Receptor Areas
An SSRA is an area designated by the board, in consultation with DEQ, which is provided
the highest level of protection under the Smoke Management Plan beecmase af. This is due
to its past history of smoke incidents, density of population or other special legal status
related to visibility such as the Columbia River Gorge Scenic Area. The following are
SSRAs:
(1) The area within the State of Oregon commonly understood to be the Willamette Valley
that:
(a) Lies east of the forest protection district boundaries of the Northwest Oregon, West
Oregon and Western Lane Forest Protection Districts, west of the forest protection district
boundaries of the North Cascade and South Cascade Forest Protection Districts and north of
where the Western Lane and South Cascade Forest Protection Districts come together in
southern Lane County (for detailed district boundary descriptions, see OAR 629-041-0500
to 629-041-0575);
(b) Notwithstanding the actual location of the forest protection district boundaries, includes
the area within the city limits of the following cities that straddle, or are within but
immediately adjoin, the forest protection district boundary:
(A) Carlton;
(B) Corvallis;
(C) Cottage Grove;
(D) Dallas
(E) Eugene;
(F) McMinnville;
(G) Portland;
(H) Sheridan;
0§1
(I) Silverton;
(J) Springfield;
(K) St. Helens;
(L) Stayton;
(M) Sublimity;
(N) Veneta;
(0) Willamina; and
(P) Yamhill;
(2) Within the acknowledged urban growth boundaries of the following cities:
(a) Astoria;
(b) Baker City;
(c) Bend;
(d) Burns;
(e) Coos Bay;
(f) Enterprise;
(g) Grants Pass;
(h) John Day;
(i) Klamath Falls;
0) La Grande;
(k) Lakeview;
(1) Lincoln City;
(m) Newport;
(n) North Bend;
37
(o) Oakridge;
(p) Pendleton;
(q) Redmond;
(r) Roseburg;
(s) The Dalles; and
(t) Tillamook;
(3) The area within the Bear Creek and Rogue River Valleys described in OAR 629-048-
0160, including the cities of Ashland, Central Point, Eagle Point, Jacksonville, Medford,
Phoenix and Talent; and
(4) The area within the Columbia River Gorge Scenic Area, as described in 16 U.S.C.
Section 544b, (2003).
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0150
Criteria for Future Listing of Smoke Sensitive Receptor Areas
To ensure continued accomplishment of the Smoke Management Plan objectives, additional
SSRAs may be listed according to the following procedures:
(1) Not more than once per calendar year, the board must consider additional SSRA listings
if:
(a) ODF The depaft.,,o„* recommends consideration of a community for SSRA listing based
on observations of repeated verified smoke incidents as described in section (5) of this rule;
(b) DEQ The Depaf"nent of Etwir- ,....meal Qualit-Y recommends consideration of a
community for SSRA listing based on evidence of airborne particulate concentrations in the
community at levels that make periodic exeeedanee of "... bie t ' alit” stand '
NAAQS exceedances a significant possibility; or
(c) The governing body of a city, or county for an unincorporated area, requests by official
action consideration of a community for SSRA listing, and cites the reasons for its request
upon:
(A) The occurrence of a ver-i€ied smoke incident lasting more than four hours;
KIE
(B) More than one verb smoke incident in the same calendar year; or
(C) Repeated verified smoke incidents as described in section (5) of this rule that have
occurred within the five years immediately preceding the request.
(2) When considering whether to list a community as an SSRA, the board shall evaluate the
evidence presented to it, including any information received at one or more public meetings.
(a) Specifically, the board shall consider information regarding:
(A) The frequency, duration and intensity magnitude of smoke incidents;
(B) Population of the community;
(C) The results, if any, of mechanical or systematic monitoring of airborne particulate
concentrations, or other verifiable information regarding existing air quality problems in the
community under consideration;
(D) The nature and performance of any local programs addressing airborne particulate
concentrations;
(E) Recent trends in, and future plans for, prescribed burning activity on surrounding
forestlands;
(F) Any local topographic or meteorological effects that may influence the frequency,
duration or intensity magnitude of smoke incidents;
(G) Evaluation of the local and regional effect that listing the community as an SSRA will
have on the Smoke Management Plan's objectives of maintaining air quality and
accomplishing necessary prescribed burning;
(H) The reasons cited in a request received under subsection (1)(c) of this rule;
(I) The joint recommendations of the department and DEQ regarding whether the
community should be listed and why; and
(J) Any other information that is relevant to accomplishing the objectives of the Smoke
Management Plan.
(b) If joint recommendations are not achieved under paragraph (2)(a)(I) above, the
department shall prepare a report for the board detailing any differences in
recommendations and its explanations for the differences.
(3) After considering the evidence presented to it, except as provided in section (4) of this
rule, the board may take any one of the following actions:
39
(a) Reject the recommendation or request;
(b) Acknowledge that smoke incidents have occurred, but direct the department to pursue an
alternate course of further information gathering, monitoring, operational modifications or
other efforts aimed at reducing the likelihood of continuing smoke incidents; or
(c) Accept the recommendation or request by defining the applicable boundaries of the
community to be listed, directing the department to begin treating the community as an
SSRA and following a timely process to amend OAR 629-048-0140 accordingly.
(4)(a) The board's choice of actions shall be limited to those described in either subsections
(b) or (c) of this section, if it finds that all of the following circumstances exist:
(A) The community proposed for listing has incurred repeated vei4fied-smoke incidents -as
described in section (5) of this rule, that have occurred within the five years immediately
preceding the request or recommendation in section (1) above;
(B) The community is a city with a population in excess of 10,000 within the incorporated
city limits, according to the most recently published population estimate of the Population
Research Center, Portland State University; and
(C) There is a likelihood of continuing frequent use of prescribed burning as a forest
management activity on forestland within 30 miles of the city limits.
(b) For communities with no air quality monitoring data, the board may delay a final action
determining whether to list the community as an SSRA if monitoring equipment is installed
in the community to gather information leading to a final determination; or
(c) The board may define the applicable boundaries of the community to be listed, direct the
department to begin treating the community as an SSRA and follow a timely process to
amend OAR 629-048-0140 accordingly.
(5) "Repeated verified smoke incidents" as used in this rule refers to a*y E)f the f llow ng
buming on for-estland in is period of thfee years two or more smoke
incidents in one calendar year.
(a) One heavy ifAensity smoke ineidef4 a*d one moder-ate of light intensity smoke ineident-,
the, Iffiaef lasting a4 least one hour;
(b) T -we meder-Me intensity smoke > both at least offe >
of t least thfee hours (usingthe intensity parameters de b ,1 OAR D 670 048 0110
11 F the L. 1
call E)f the above).-
no]
ems.
ao]
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0160
Bear Creek/Rogue River Valley SSRA
The Bear Creek and Rogue River Valley smoke sensitive receptor area listed in OAR 629-
048-0140 (3) is defined as beginning at a point approximately one mile NE of the town of
Eagle Point, Jackson County, Oregon, at the NE corner of Section 36, T35S, R1W; thence
south along the Willamette Meridian to the SE corner of Section 25, T37S, R1 W; thence SE
to the SE corner of Section 9, 39S, R2E; thence SSE to the SE corner of Section 22, T39S,
R2E; thence south to the SE corner of Section 27, T39S, R2E; thence SW to the SE corner
of Section 33, T39S, R2E; thence west to the SW corner of Section 31, T39S, R2E; thence
NW to the NW corner of Section 36, T39S, R1E; thence west to the SW corner of Section
26, T39S, RIE; thence NW to the SE corner of Section 7, T39S, R1E; thence west to the
SW corner of Section 12, T39S, R1W; thence NW to the SW corner of Section 20, T38S,
R1W; thence west to the SW corner of Section 24, T38S, R2W; thence NW to the SW
corner of Section 4, T38S, R2W; thence west to the SW corner of Section 5, T38S, R2W;
thence NW to the SW corner of Section 31, T37S, R2W; thence north to the Rogue River,
thence north and east along the Rogue River to the north boundary of Section 32, T35S,
R1 W; thence east to the point of beginning.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0180
Community Response Plan and Exemption Request
(1) ODF Salem headquarters office shall develop and distribute a best -practices
communication framework for dissemination through local ODF and federal district
offices to their respective county health department(s). The communications
framework shall include general information regarding: (1) the purpose and
importance of prescribed burning, (2) the health risks of wildfire and prescribed fire
smoke, (3) how local officials and the public can find out about daily burn plans and
emission reduction actions in their area, and (4) notification of smoke anticipated
entering into specific SSRAs.
(2) ODF and DEQ recommend that communities that are SSRAs which have
experienced repeated smoke incidents and/or intrusions in the past develop a
community response plan. This plan shall be in coordination with local ODF or federal
district offices with jurisdictional responsibilities for prescribed burns, to determine
how an SSRA will respond when notified of a potential smoke incident or intrusion
into their area.
(a) The community response plan should be coordinated through the county health
department but developed collaboratively with input from community officials,
agencies, businesses, and other interested parties.
(b) The plan shall include education about prescribed burning for local residents so
they understand potential health impacts from smoke and what steps they can take to
reduce their risk of exposure. The plan shall also outline how the community will be
alerted whenever smoke from prescribed burning appears likely to impact it, and what
local agencies can do to protect community residents, especially vulnerable
populations.
(c) Communities that develop and implement such a plan to proactively alert the
public of likely prescribed fire smoke impacts and provide actions (as described above)
to mitigate exposure to vulnerable populations and support citizens who may not have
the means to take mitigation efforts may request an exemption from the one-hour
smoke intrusion threshold in order to provide maximum opportunity for essential
forestland burning in the Wildland Urban Interface where wildfire risk to forest,
communities, and firefighters is greatest. The request for exemption must be approved
by the community's local governing body in coordination with the County Board of
Commissioners. The request for exemption will be considered for approval by ODF
and DEQ under the advisement of Oregon Health Authority.
629-048-0200
Alternatives to Burning
(1) When planning forest management prescriptions and particularly final harvests (prior to
reforestation), owners are encouraged to use practices that will eliminate or significantly
reduce the volume of prescribed burning necessary to meet their management objectives.
Some practices to consider include, but are not limited to:
(a) Maximizing the cost-effective use of woody material for manufacture of products;
(b) Where cost-effective, using wood or other biomass for energy production or mulch;
(c) Lopping and scattering limbs and other woody material, or operating heavy machinery
over the wood to maximize contact with the soil in order to speed its breakdown; or
(d) Re -arranging woody materials, as necessary to accomplish reforestation through the
slash (from a fire prevention standpoint, this may not be desirable in areas of heavy fuel
concentrations or where soil moistures are not conducive to breakdown of fuels).
42
(e) Removing or minimizing large fuel concentrations and heavy fuel loading to
minimize smoldering.
(2) When prescribed burning is determined to be necessary to achieve forest management
objectives, owners are encouraged to use emission reduction techniques as described in
OAR 629-048-0210.
(3) Prior to registration, forestland managers are strongly encouraged to consult the
following:
(a) "Non-burning Alternatives to Prescribed Fire on Wildlands in the Western United
States" at http://www.,AlraDair.orR/forums/fejf/tasks/FEJFtask3.html (Western Regional Air
Partnership, February, 2004);
(b) The Oregon Forest Industry Directory website provides information on potential markets
for woody material at www.orforestdirectory.com/; and
(c) "Oretic: Forest Biomass Estimate Forest Biomass Analysis for Western States by
County" by Phillip S. Cook and Jay O'Laughlin (Western Governors' Association, January
24, 2011), on the Woody BiomassUtilization Database at Oregon Depaft ent of E
website at:
https://www.researchgate.net/profile/Jay_Laughlin/publication/266451188_Forest_Bio
mass_Supply_Analysis for_ Western_States_by_County_Final_Report_to_the_Wester
n_Governors %27_Association/links/55b0ead208ae9289a0849d62/Forest-Biomass-
Supply-Analysis-for-Western-States-by-County-Final-Report-to-the-W estern-
Governors-Association.pdf
(4) As described in 629-048-0450(2)(c), the department shall complete an annual report
summarizing the use of alternatives to burning.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0210
Best Burn Practices; Emission Reduction Techniques
(1) "Best burn practices" as used in this rule refers to those practices designed to minimize
emissions from prescribed burning or accomplish burning at times and under such
conditions as to minimize the likelihood that emissions will have adverse effects to the air
quality maintenance or visibility objectives (OAR 629-048-0120 and 629-048-0130).
Additional practices not described in this rule may be necessary to ensure against the escape
of fire or protection of forest resources.
43
(2) In general, best burn practices involve methods that ensure the most rapid and complete
combustion of forest fuels while nearby, "non -target" fuels are prevented from burning, such
as:
(a) Physical separation of "target" and "non -target" fuels;
(b) Burn prescriptions, particularly for broadcast burns, that recognize and utilize the natural
differences in fuel moistures of larger and smaller pieces of woody material; or
(c) Covering of piles sufficient to facilitate ignition and complete combustion, and then
burning them at times of the year when all other fuels are damp, when it is raining or there is
snow on the ground.
(3) Rapid combustion is well served by rapid ignition which may involve the use of
petroleum accelerants (with appropriate safety precautions) and by maintaining an adequate
air supply to the forest fuels being burned. Piles and windrows should be mostly free of soil,
rocks and other non-combustible materials and should be loosely stacked to promote
aeration. Where practicable, re -stacking or "feeding" the burn pile is encouraged to
complete combustion and avoid smoldering.
(4) When piles are covered as a best burn practice and the covers are to be removed before
burning, any effective materials may be used, as long as they are removed for re -use or
properly disposed of When covers will not be removed and thus will be burned along with
the piled forest fuels, the covers must not consist of materials prohibited under OAR 340-
264-0060(3), except that polyethylene sheeting that complies with the following may be
used:
(a) Only polyethylene may be used. All other plastics are prohibited;
(b) The size of each polyethylene cover must not _.._eea 100 squar-e feet F^,- small piles
only an afea may vary as necessary to achieve rapid ignition and combustion.
instead of the en4ir-e pile, is eneetifaged-,
(e) The thiekness f the polyethyleneeever- most not o as 4 ;1. ,, 1
(d) Layering of: tnultiple eaver-s (exeeeding 100 squafe feet eembined) within a pile is
prohibited, tialess ffuther-ized in wr-ifing by the forester- to meet ignition and eoffibiistie
needs.
(5) The use of petroleum accelerants and polyethylene covers as "best burn practices"
described in this rule is expressly intended as an exception to OAR 340-264-0060(3) as
allowed by 340-264-0060.
(6) In general, rapid mop -up of prescribed burning is not needed to meet the objectives of
the prescribed burn and protect air quality. However, in instances of prescribed burning
within an SSRA or when conditions change significantly from those forecasted or present at
CEA!
the time of ignition, rapid mop -up may become necessary to prevent k ' a
smoke intrusion. Burn
plans required under OAR 629-043-0026(4), prescribed fire plans required by federal land
management agency policy, or burn permits required under ORS 477.515, when
appropriate, should address conditions that may require mop -up of the prescribed burn and
to what extent.
(7) When local conditions for smoke dispersal appear to be better than forecasted, burn
bosses and field administrators are encouraged to communicate such information to the
Smoke Management forecast unit, to further the objective of accomplishing burning during
the most favorable conditions.
(8) As described in 629-048-0450(2)(c), the department shall complete an annual report
summarizing the use of emission reduction techniques.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0220
Forecast Procedures
(1) There are several concepts and procedural steps involved in accomplishing the Smoke
Management Plan objectives, designed to maximize opportunities for accomplishing
burning while minimizing the likelihood of public health effects or visibility impairment in
Class I Areas. The following sections of this rule attempt to explain some of these concepts.
(2) The basic underlying mechanism in smoke management is the use of an understanding
of atmospheric dynamics and combustion processes, in concert with current weather
forecasts, to ensure that the bulk of emissions from prescribed burning are transported to
areas of low or no adverse effect by:
(a) In the case of broadcast or large pile burning, generating heat rapidly so that the fuel is
quickly consumed and emissions rise sufficiently above ground level to either:
(A) Become diluted and dispersed in the atmosphere via transport winds to areas of minimal
impact; or
(B) Mix with the moisture in clouds and fall back to earth as precipitation; or
(b) In the case of low -intensity underburning or small piles under the forest canopy,
managing the volume of material burned per unit of time and paying careful attention to
surface winds to keep total emissions low and disperse the smoke to relatively unpopulated
areas.
45
(3) For each day that prescribed burning is planned on forestland with Level 1 regulation, a
weather forecast is prepared by meteorologists specializing in smoke management. By
examining the atmospheric conditions predicted for the burn day, such as vent heights,
mixing layers, wind speed and direction, as well as information about what level of
pollutants may already be present in a given area, the meteorologists determine if and where
conditions will be favorable to accomplish burning.
(4) In addition to the weather forecast, specific information is required on the location of
planned burns, and the tonnage of fuel that is expected to be consumed in a burn. This
information is provided on a per unit basis at the time that burns are registered and planned
with the forester (see OAR 629-048-0300).
(5) With knowledge of the information described above, and based on dispersion models
that have been developed through time and experience, forecasters are able to reasonably
predict how much smoke and at away,.,.., ,rr can be put into the atmosphere, and at what
locations, without likelihood of threat to air quality objectives. This information is then
converted into instructions to field administrators and burn bosses as to what tonnages, in
what weather zones and at what distances from SSRAs prescribed burning may be
permitted.
(6) The forecast and instructions are made available to field administrators and any
interested parties by 3:15 p.m. each day, as necessary. Locally, planned burns are compared
against the forecast and instructions, as well as any local prioritization of burns, to
determine which burns, if any, will be permitted on the following day. If there are any
changes in the forecast for the day of the burn, the Smoke Management forecast unit will
make every effort to place a message on an automatic answering phone by 8 a.m.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0230
Burn Procedures
(1) Before any prescribed burning is initiated, burn bosses should have a well thought out
plan that takes into account:
(a) How weather will be monitored and changes in conditions will be communicated;
(b) Resources needed and actions taken to reduce pre -burn fuel loadings to minimize
emissions.
(be) Resources necessary to accomplish ignition and ignition sequences;
(Ed) Resources and methodology necessary to contain and control the fire and prevent its
escape, including communications to access additional resources, if necessary; and
(de) The Smoke Management forecast and how the burn will be conducted to avoid
minimize smoke entering SSRAs, or other areas sensitive to smoke, and other
communities. and to minimize smoke -ff- tother-eammuniti
(2) The forester may require that a written burn plan be prepared for approval under OAR
629-043-0026(4), prior to issuance of a burn permit. A prescribed fire plan is required under
federal policy for all prescribed burning on federal lands.
(3) Prescribed burn operations with large tonnages (2000 tons or more) or burns that will
occur over multiple days should be adequately planned and monitored to provide
opportunities to cease lighting and hold the existing burn within smaller compartments in
order to mitigate undesirable smoke effects or changes in the actual burn conditions from
those that were forecasted.
(4) For prescription burn units on forestland subject to Level 1 regulation, burn bosses must
provide specific information to be transmitted to the Smoke Management forecast unit in a
standard format acceptable to the forester, regarding unit location, method of burning, and
fuel loading tonnages by the day of the burn. If additional burning is deemed possible after
10 a.m. in consultation with the forecast unit, the plan deadline may be extended.
(5)(a) Before ignition of any prescribed burning in a fire season (as designated by the
forester under ORS 477.505), the burn boss must obtain a permit to burn from the forester as
required by ORS 477.515 (not required for federal land management agencies). Federal land
management agencies must follow agency policies that provide for an affirmative "go -no go
decision" before ignition of any prescribed burning as documented and approved by the
federal land management agency's line officer.
(b) A permit to burn from the forester is also required for all prescribed burning on non-
federal Class 1 forestland in western Oregon at any time of the year.
(c) Under ORS 477.515(1)(a), the forester may waive the requirement for a burn permit in
instances of burning other than described in subsections (a) and (b) of this section, so burn
bosses should check with the forester locally to determine whether permits are required
outside fire season.
(6) Before ignition of any prescribed burning on forestland subject to Level 1 regulation, the
burn boss must obtain the current Smoke Management forecast and instructions and must
conduct the burning in compliance with the instructions. Burn bosses must make provisions
to be informed if the forecast or instructions are subsequently changed. Through
communication among the burn boss, field administrator and the Smoke Management
forecast unit, based on information specifically relevant to the burn location, a burn boss
may obtain a variance from the instructions, but must document the time and method of
communication and adhere strictly to the conditions of the variance.
47
(7) For prescribed burn operations with large tonnages (greater than 2000 tons) or burns that
will occur over multiple days, burn bosses may request at least two days in advance that a
special forecast and instructions be issued to ensure adequate attention to meeting Smoke
Management Plan objectives. Issuance of a special forecast and instructions will be solely
within the discretion of the Smoke Management forecast unit based on workload and
sufficient local information to support the forecast.
(8) The Smoke Management forecast unit, in developing instructions, and each field
administrator issuing burn permits are directed to manage the prescribed burning on forest
land in connection with the management of other aspects of the environment in order to
maintain a satisfactory atmospheric environment in SSRAs. This direction is to be applied to
situations in which prescribed burning may impact SSRAs or other areas sensitive to smoke.
(9) Each burn boss or field administrator must validate that forecasted weather conditions
are consistent with actual on-site conditions prior to ignition of burns.
(10) A burn boss is required to stop temiinate ignition, in a manner that does not
compromise worker safety or the ability to prevent escape of the burn, if either of the
following occurs:
(a) The burn boss determines, or is advised by a field administrator, that an SSRA, or other
area sensitive to smoke is already adversely affected by the burn or would likely become so
with additional burning; or
(b) The burn boss receives notice from the forester, through the Smoke Management
forecast unit, or following consultation with DEQ the DepaAffient of Envir-enmen4a!
Qualms, that air in the entire state or portion thereof is, or would likely become adversely
affected by smoke.
(11) Upon stopping *o,.minatio of ignition required by section (10) of this rule, any burning
already under way should be completed, residual burning should be extinguished as soon as
practicable, and no additional burning may be attempted until approval has been received
from the forester.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0300
Registration of Intent to Burn
(1) In all instances of prescribed burning on forestland within a forest protection district, the
operator, federal land manager, landowner, or timber owner must first register with the
forester all forestland that is intended to be burned. For forestland subject to Level 1
regulation, burn registration must be completed at least seven days before the first day of
ignition.
(2) The forester may waive the seven-day waiting period required in section (1) of this rule
contingent upon the forester's approval of a burn plan or conditions of federally prescribed
fire policies having already been met.
(3) Information provided for burn registration must be complete and recorded in a standard
format approved by the forester.
(4) No operator, federal land management agency, landowner or timber owner shall be
allowed to register additional forestland for burning if payment for their previous
registration or burning, when required pursuant to OAR 629-048-0310, is more than 90 days
past due.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. e£ 1-1-08
629-048-0310
Fees for Prescribed Burning
(1) Any prescribed burning on forestland subject to level 1 regulation (OAR 629-048-0100)
requires payment of a non-refundable registration fee of $.50/acre and upon accomplishment
(see section (3) of this rule), a burn fee as further described in sections (2), (3), (5), (6) and
(8) below.
(2) Burn fees for all forms of prescribed burning, including but not limited to, broadcast
burning and burning of piles (whether in -unit, on landings, or from rights-of-way) shall be
assessed (where required) against the total acres in the unit from which the forest fuels were
accumulated, as described in the burn registration.
(3) The first time that fire is applied to a prescribed burn unit, regardless of actual
accomplishment, payment of a burn fee is required. Burn fees shall be charged according to
the following schedule:
(a) If the registration of planned burning includes only landing or right-of-way piles, the
burn fee shall be $.50 per acre registered. Subsequent attempts to improve accomplishment
only in landing or right-of-way piles in the same unit, in the same calendar year or the two
following calendar years, shall not incur additional fees.
(b) If the registration of planned burning includes other than landing or right-of-way piles,
the burn fee shall be $3.10 per acre registered. Subsequent attempts to improve
accomplishment in any portion of the same unit, in the same calendar year or the two
following calendar years, shall not incur additional fees.
(c) If the registration of planned burning includes any combination of burn treatments that
include landing or right-of-way piles with broadcast or in -unit pile burning, the burn fee
shall be $2.60 per acre for each in -unit treatment registered upon the first attempt of each
treatment. Landing or right-of-way piles will be $.50 per acre registered upon the first
attempt to burn of of those piles. Subsequent attempts to improve
accomplishment in any portion of the same unit, in the same calendar year or the two
following calendar years, shall not incur additional fees.
(4) (a) As used in this rule, "landing" means any location logs are yarded to for processing
(trimming ends or limbs and tops remaining after yarding) and assembling for forwarding or
loading onto trucks, including each loading site that may occur along a road. Consequently,
a landing pile contains only those residues resulting from the processing, and not additional
forest fuels accumulated from growth on the site or the felling process.
(b) As used in this rule, "right-of-way piles" means any accumulated forest fuels that come
only from the area cleared in the pioneering stage of road construction after appropriate
utilization.
(5) Areas burned as a result of escaped fires that are outside the description of the registered
burn area shall not be assessed fees if the fire outside of the described area is immediately
attacked for wildfire suppression. If the fire outside of the described area is managed as a
prescribed fire then every additional acre burned shall incur a registration fee of $.50 per
acre and a burn fee of $3.10 per acre.
(6) Notwithstanding section (3) of this rule, forest health maintenance burning on forestland
subject to Level 1 regulation, where significant fuel reduction has been accomplished
through underburning within the last five years and where there are no piled forest fuels on
the site, shall be charged a burn fee of $.50 per acre.
(7) The forester shall prepare monthly billings to collect the appropriate registration and
burn fees from the operator, federal land manager, landowner or timber owner whose name
is recorded on the registration form for billing purposes.
(8) Notwithstanding sections (1) and (3) of this rule, each burn unit requires a minimum
combined registration and burn fee of $30. To reduce processing costs, the forester may
elect to collect both registration and burn fees prior to accomplishment, for landing, right-
of-way, or maintenance units less than 20-30 acres on one combined billing. The forester
may elect to collect both registration and burn fees prior to accomplishment, for
broadcast, underburning, or in -unit piles units less than 9 acres on one combined
billing.
(9) Notwithstanding sections (1), (3) and (7) of this rule, in accordance with ORS
477.562(6), a federal land management agency may enter into a cooperative agreement with
the forester for payment of registration and burn fees at an annual flat rate. The rate shall be
based on estimated acres to be treated as a percentage of total acres on all ownerships,
applied against the overall annual estimated operating cost of the Smoke Management Plan.
50
Any such agreement shall have a provision that allows for periodic adjustment of the rate
based on actual experience.
(10) Notwithstanding section (7) of this rule, any person or entity described in ORS
477.406(1) with a prior record of timely payment may, at the discretion of the forester, enter
into a cooperative agreement for the efficient administration and payment of registration and
burn fees provided all payments equal no less than the registration rate described in section
(1) of this rule times the number of acres registered plus the burn fee rate in sections (3) or
(6) of this rule, as appropriate, times the number of acres accomplished.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0320
Reporting of Accomplishments
(1) Accomplishment information for all prescribed burning that takes place on forestland
within the regulated area described in OAR 629-048-0100 must be recorded in a manner
that details the amount of burning and emissionfor-each day of must
be reported to the department according to the schedule described below and in standard
formats prescribed by the forester.
(2) Prescribed burning on forestland subject to Level 1 regulation must be reported the next
business day following each day's ignition as described in Department Directive 1-4-1-601,
"Operational Guidance for the Oregon Smoke Management Program, Appendix 1."
(3) Prescribed burning on forestland subject to Level 2 regulation must be reported by the
first business day of the week following ignition as described in Department Directive 1-4-
1-601, "Operational Guidance for the Oregon Smoke Management Program, Appendix 1."
[ED. NOTE: Appendix Fefereneed ; .,;tanto from the „bo,,,. y, j
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0330
Emission Inventories
(1) In addition to the emissions information collected from prescribed burning under OAR
629-048-0320, the forester will annually estimate, using appropriate models and the best
available information on acres burned and fuel type, the emissions produced by wildfires in
51
Oregon. At a minimum, the forester will attempt to collect information about wildfires that
burn on forestlands within a forest protection district.
(2) Emissions information from prescribed burning and from wildfires will be maintained as
distinct inventories, in appropriate forms, for analysis and distribution to improve the overall
understanding of the relationships of wildfire versus prescribed fire emissions.
(3) The forester may include as much information on wildfires as may be readily available
from the various protection agencies and other cooperators, provided that gathering of such
information does not create an unfunded cost to the Smoke Management program.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0400
Coordination with Other Regulating Jurisdictions and for Other Pollutants
(1) In order to meet the air quality maintenance and visibility objectives of the Smoke
Management Plan (OAR 629-048-0120 and 629-048-0130), it is important that the forester,
field administrators and other cooperators be well informed as to the existence of, or
potential for smoke or other airborne pollutants other than that which will be produced by
any planned prescribed burning in the affected airshed. Local field administrators are
encouraged to maintain working relationships with other local jurisdictions that authorize
open burning or monitor air quality so that all parties may be adequately informed of
planned burns or conditions that cumulatively might exceed standards or objectives.
(2) The forester is required to report the weather forecast, planned and accomplished
burning and smoke intrusions, if any, to the Department of Environmental Quality for each
applicable day, on a timely basis.
(3) Any wildfire that has the potential for smoke input into an SSRA or other area sensitive
to smoke must be reported immediately by the local unit of the state or federal agency with
jurisdiction for fire suppression to the State Forester's office.
(4) The Smoke Management forecast unit will communicate periodically with appropriate
prescribed burning regulators in the surrounding states for the purpose of coordination and
information sharing, as appropriate.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0450
52
Program Evaluation and Adaptive Management
(1) The department is responsible for analysis and evaluation of the prescribed burning
operations conducted under the Smoke Management Plan.
(2) Reports summarizing annual activities of the program shall be published by the
department addressing:
(a) The level of burning activity;
(b) Results with regard to avoiding entr-a*ee of smoke into SSRAs and othef: areas sensitive
* oke and r poi4s o f any ^'_- intrusions Smoke intrusions and smoke incidents;
smoke w.. .ter,,, ., ., �=:�� �---� ------�-�--�
(c) PM2.5 NAAQS exceedances caused by prescribed burning and actions taken to
prevent reoccurrence as described in OAR 629-048-0110(5).
(ed) Accomplishment of alternatives to burning and the use of emission reduction
techniques;
(de) Evaluation of overall Smoke Management Plan accomplishment;
(ef) Evaluation of adequacy of listed SSRAs and protection measures;
(€g) Any other pertinent information related to Smoke Management Plan evaluation and
improvement; and
(gh) Revenues generated from burn fees and related Smoke Management Plan costs.
(3) Copies of the reports described in section (2) of this rule will be made available to all
interested parties.
(4) Upon publication of a report in accordance with section (2) of this rule, the forester will
consult at least annually with the Smoke Management Advisory Committee created under
ORS 477.556. Topics will include, but are not limited to, Smoke Management Plan
implementation, status of the Oregon Forest Smoke Management Account (ORS 477.560),
and any fee changes that may be appropriate based on the balance in this account.
(5) ODF The Pepa t, en4 of Forestry and DEQ the DepaFtment of Effy;. nta Qua! :r
will jointly review the Smoke Management Plan every five years unless there is agreement
by both agencies that the plan can be reviewed at an earlier or later date, not to exceed 10
years from the previous review. Results of the review will be presented to the State Forester
and the Director of Environmental Quality for joint consideration and approval.
Representatives of affected agencies may assist the review at the discretion of the State
Forester.
53
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4:2007, f. 12-31-07, cert. ef. 1-1-08
629-048-0500
Enforcement
(1) Violations of the Smoke Management Plan may be enforced either as violations of the
fire prevention statutes and rules (ORS 477.980 to 477.993) or as violations of the forest
practice rules (ORS 527.680 to 527.690, 527.990 to 527.992 and OAR 629-670).
(2)(a) When, in the judgment of the forester, a violation is related primarily to an act or
omission that has caused or might cause fire to burn uncontrolled, enforcement under the
provisions of the fire prevention statutes and rules is appropriate.
(b) When, in the judgment of the forester, a violation is related primarily to an act or
omission that has caused or might cause deterioration of air quality, enforcement under the
provisions of the Forest Practices Act and rules (specifically, OAR 629-615-0300) is
appropriate.
(3) Enforceable standards within the Smoke Management Plan include requirements to:
(a) Register burns prior to ignition (OAR 629-048-0230(4) and 629-048-0300);
(b) Obtain approval for and follow a burn plan (OAR 629-048-0230(2) and 629-043-
0026(4);
(c) Obtain a burn permit and comply with any conditions included therein (OAR 629-048-
0230(5) and ORS 477.515);
(d) Obtain and comply with daily Smoke Management instructions and updates (OAR 629-
048-0230(6);
(e) Comply with restrictions regarding use of poly ne covers on burn piles (OAR 629-
048-0210(4);
(f) Cease burning when directed by the forester (OAR 629-048-0100(4) and 629-048-
0230(10);
(g) Report accomplishments (OAR 629-048-0320); and
(h) Pay fees (OAR 629-048-0310).
(4) Section 118 of the federal Clean Air Act provides for enforcement of state air quality
regulations against federal agencies. It will be the policy of the Board of Forestry, in the
54
event of a failure of a federal land management agency to comply with the Smoke
Management Plan, that the forester will first inform the responsible agency of the failure
and coordinate efforts to ensure timely correction of any breakdowns in procedure that may
have resulted in the failure. However, if this method does not appear in the judgment of the
State Forester to result in necessary correction of procedures, or under other circumstances
that in the judgment of the State Forester warrant further action, enforcement action may be
taken as with any other responsible party.
Stat. Auth: ORS 477.013, 477.562, 526.016, 526.041
Stats. Implemented: ORS 477.013, 477.515, 477.562
Hist.: DOF 4-2007, f. 12-31-07, cert. ef. 1-1-08
W
ODF Fiscal Impact Statement
Secretary of State
STATEMENT OF NEED AND FISCAL IMPACT
A Notice of Proposed Rulemaking Hearing or a Notice of Proposed Rulemaking accompanies this
form.
Oregon Department of Forestry — Fire Protection Division 629
Agency and Division Administrative Rules Chapter Number
Oregon Smoke Management Plan Revision and Update
Rule Caption (Not more than 15 words that reasonably identifies the subject matter of the
agency's intended action.)
In the Matter of: Revision of the Oregon Smoke Management Plan
Statutory Authority: ORS 477.013 and 477.562
Other Authority: ORS 526.016 and 526.041
Stats. Implemented: ORS 477.013, 477.515 and 477.552 to 477.562
Need for the Rule(s): The federal Clean Air Act requires states to periodically update their state
implementation plans to demonstrate continued progress toward meeting federal air quality
standards. One part of the state's implementation plan is the management of forestry prescribed
burning through the Oregon Smoke Management Plan administered by the State Forester. The
plan was recently reviewed and determined to need updating to examine the state policy of
prescribed burning as used to mitigate wildfire and improve forest health. Changes to the rule
include changing the definition of a smoke intrusion to match a health -based standard, developing
a community response plan to notify residents of Smoke Sensitive Receptor Areas that smoke
may impact their community at greater intervals, expanded use of polyethylene sheeting to keep
burn piles dry for burning later in the fall season, and other related alterations based on the above
major changes.
Documents Relied Upon, and where they are available: The rule changes are based on
recommendations provided by both Oregon Department of Forestry and Department of
Environmental Quality informed by a Smoke Management Review Committee. They are found in
a staff report and draft update to OAR 629-048, presented at the June 6`h, 2018 Board of Forestry
meeting. Copies of the report and Board minutes can be viewed or made available by contacting
Jenna Nelson, Rules Coordinator, 2600 State St. Salem, Oregon 97310; telephone (503) 945-
7444; or email at„ienna.a.nelsonkoregon.gov.
Fiscal and Economic Impact: While there are a number of rule changes, only one appears like it
may have an indirect fiscal impact. A new rule will allow for an increase in prescribed burning
56
because of a change in the "smoke intrusion" definition. This change will allow for a greater
amount of smoke to enter Smoke Sensitive Receptor Areas (SSRAs) before it's considered a
smoke intrusion. To mitigate the effects of increased smoke, community response plans will be
implemented in SSRAs vulnerable to prescribed burning smoke.
Statement of Cost of Compliance:
1. Impact on state agencies, units of local government and the public (ORS 183.335(2)(b)(E)):
Expect some additional workload on forest districts that have SSRAs within or near their
protection boundaries as they assist in the development of community response plans. Additional
workload would be absorbed by the affected district with minimal fiscal impact. However, the
local government, especially local public health authorities, may have additional fiscal impact as a
part of notifying health vulnerable citizens of SSRAs that have increased risk of prescribed
burning smoke exposure. It's difficult to determine the costs of additional communication to
notify vulnerable populations but estimates could range up to a few thousand dollars.
2. Cost of compliance effect on small business (ORS 183.336):
a. Estimate the number of small businesses and types of business and industries with small
businesses subject to the rule: There are more than 2500 small landowners who have forestland
and occasionally pay registration and burn fees.
b. Projected reporting, recordkeeping and other administrative activities required for compliance,
including costs of professional services: To set up a community response plan would likely
require administrative activities of coordinating between several governmental agencies,
businesses, and other stakeholder interests in developing a plan. Potential costs could range up to
a few thousand dollars.
c. Equipment, supplies, labor and increased administration required for compliance: Costs to
develop and implement a plan may range up to a few thousand dollars.
How were small businesses involved in the development of this rule? Rule development was
discussed routinely with the Smoke Management Review Committee as well as receiving a final
review by the Smoke Management Advisory Committee (required under ORS 477.556). Both the
Review Committee and Advisory Committee included representatives from industrial forest
landowners and non -industrial forest landowners. In addition, all meetings of both committees
were open to the public with public comment periods available.
Administrative Rule Advisory Committee consulted? Yes. The Smoke Management Review
Committee was established for the purpose of recommending changes and improvements to the
Oregon Smoke Management Plan. Rule development was reviewed by the Smoke Management
Advisory Committee.
Signature Printed name
Date
Administrative Rules Unit, Archives Division, Secretary of State, 800 Summer Street NE, Salem,
Oregon 97310.
57
DIRECTIVE 07/14 1-4-1-601 - OPERATIONAL GUIDANCE FOR
THE OREGON SMOKE MANAGEMENT PROGRAM
W:
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POLICY: This directive provides operational procedures to implement the Oregon Smoke
Management Plan. The objectives of the Smoke Management Plan are to:
A. Minimize smoke emissions resulting from prescribed burning as described by ORS
477.552.
B. Provide maximum opportunity for essential forestland burning;
C. Protect public health by avoiding intrusions;
D. Coordinate with other state smoke management programs;
E. Comply with state and federal air quality and visibility requirements; and
F. Promote the further development of techniques to minimize emissions by encouraging
cost-effective utilization of forestland biomass, alternatives to burning, and emission
reduction techniques.
AUTHORITY: This directive implements ORS 477.013, 477.515, ORS 477.552 through 562,
OAR 629-043-0040, and OAR 629-048-0001 through 629-048-0500.
DEFINITIONS: See OAR 629-048-0005.
STANDARDS:
A. The Smoke Management Rules: The Smoke Management administrative rules (OAR
629-048-0001 through 629-048-0500) provide a specific framework for the administration
of the Smoke Management program by the State Forester. The plan requires the State
Forester and each field administrator to maintain a satisfactory atmospheric environment
in SSRAs, federal Class I Areas, and other areas sensitive to smoke (OAR 629-048-
0230(8)).
In administering the Smoke Management Plan, the State Forester and the field
administrators will monitor weather and air quality conditions in SSRAs and other areas
sensitive to smoke.
In order to meet air quality standards and the objectives stated above, restrictions on
prescribed forestland burning are applied through issuance of Smoke Management
instructions by the State Forester in order to limit the amount of particulate matter that is
released into the airshed.
B. Plan Applicability: The Smoke Management Plan applies to all lands classified as
forestland under ORS 526.305 to 526.370 and all federally managed forestland, whether
or not classified, within a forest protection district. See OAR 629-048-0100 for specifics. In
general, all federal forestland and Class 1 forestland in Western Oregon is regulated at a
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higher level but all forestland owners and managers must comply with various aspects of
the program.
C. Smoke Management Forecasts and Instructions: To minimize the amount of smoke
entering SSRAs, as described in OAR 629-048-0140, and other areas sensitive to
smoke (OAR 629-048-0005(22)). The Smoke Management forecast unit issues daily
forecasts and instructions during periods of substantial prescribed burning.
Smoke Management forecasts shall be issued as needed for three regions
within the regulated area; Western Oregon, including Fire Weather Zones 601
through 612, Zones 615 through 623, and 639; Central and Northeast Oregon,
including Fire Weather Zones 640 through 646; and South -Central Oregon,
including Fire Weather Zones 624 and 625.
Written Smoke Management forecasts are normally issued during the period
from late March through June and late September through December, when
significant prescribed burning is being conducted. Forecasts are written at other
times as dictated by weather and the level of burning. Special written forecasts
shall be issued when requested for specific burns, as forecaster workload
permits.
Scheduled forecasts shall be issued in mid afternoon and are valid for the next
day. Forecasts shall be disseminated no later than 3:15 p.m. When necessary,
an updated forecast shall be issued if significant changes from the previous
forecast have occurred or are expected. When possible, updated forecasts will
be issued in the early morning, normally before 8:00 a.m. However, updates may
be issued at other times when necessary.
a. Dissemination. Forecasts shall be disseminated by e-mail and made
available on the Oregon Department of Forestry web site
(http://www.oregon.gov/ODF/Fire/Pages/Burn.aspx). The Western Oregon
forecast shall also be placed on a telephone message recording.
b. Content. Forecasts include four main sections: a general discussion of the
weather expected through the forecast period; specific mixing, transport
wind, and surface wind forecasts; a general outlook for the following three
days; and daily outlooks for mixing height, transport wind, and surface
wind. Updated forecasts may not include outlooks.
2. Instructions and/or advisories shall be issued in conjunction with each Smoke
Management forecast. For forestland included in Level 1 regulation, as defined
in OAR 629-048-0005(19), instructions detail the locations and amounts of
material that may be burned, provide minimum separation from SSRAs, and
other restrictions as may be necessary to minimize smoke impacts. In areas of
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Level 2 regulation, the information may be considered an advisory but adherence
is strongly encouraged and burn bosses should use the forecasts and
instructions to minimize the possibility of drifting smoke into SSRAs.
a. When significant burning is taking place, the Smoke Management
forecast unit shall issue written instructions with the forecasts. Outside the
period when written forecasts and instructions are issued, burning shall be
carried out only after consultation with the forecaster.
b. Special Protection Zones (SPZ) have been established around certain
communities requiring additional protection from particulates. Any burning
in an SPZ, during its protection period, must have the approval of the
meteorologist. Specific control strategy restrictions for these areas
adopted by the Department of Environmental Quality (DEQ) and Oregon
Department of Forestry (ODF) are found in OAR 629-048-0135 and OAR
629-048-0137. SPZ maps are found in Appendix 5.
C. Air Stagnation Advisories (ASA) are issued by National Weather Service
forecast offices for areas where atmospheric conditions are likely to allow
air pollutants to accumulate for an extended period. Burning within the
area of an ASA must be closely controlled and Smoke Management
instructions issued when an ASA is in effect will limit forestland burning to
units which are not expected to worsen air quality within the area. Similar
restrictions shall apply for areas for which an air pollution alert has been
issued by DEQ.
d. The instructions shall be considered a directive from the State Forester for
all burning in areas of Level 1 regulation. Any planned variances from the
daily burning instructions must be discussed with the Smoke Management
duty forecaster. OAR 629-048-0230(6) requires that variances from the
instructions must be documented by the burn boss. In addition, variances or
revisions to the instructions will be logged by the Smoke Management
forecaster as workload permits.
e. For forestland included in Level 2 regulation, (OAR 629-048-0005(20)),
compliance with the Smoke Management instructions is encouraged.
Instructions. will identify the amount of material that may be burned, those
locations where burns should not be conducted, and other special
considerations necessary to minimize the amount of smoke from being
carried into SSRAs.
D. Burning Operations: All burning must be conducted in compliance with the Smoke
Management Plan. The burn procedures of OAR 629-048-0230 set the minimum
requirements that must be met for conducting each prescribed burn.
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In areas of Level 1 regulation, units must be registered for burning seven days
prior to burning (OAR 629-048-0300), planned in the data system the day of the
proposed burn (OAR 629-048-0230(4)), and accomplishments reported the first
business day following the actual burn (OAR 629-048-0320) and each additional
day that burning is conducted in the unit.
2. For forestland subject to Level 2 regulation, burning is not required to be planned
prior to burning. However, all burns must be registered prior to burning and
accomplishment reported by the first business day of the week following ignition.
Specific requirements for reporting are detailed in Appendix 1.
3. In addition to adhering to the restrictions of the Smoke Management forecasts
and instructions, burn bosses must monitor on-site conditions and be prepared
to terminate ignition or take other appropriate action if conditions warrant. Burns
conducted in areas of Level 2 regulation are not required to adhere to the
instructions/advisories but are strongly encouraged to follow the guidance and
burn in such a manner to minimize smoke impacting SSRAs or other smoke
sensitive areas.
4. The Smoke Management forecaster should be consulted before burning under
marginal dispersal conditions and for large or multi -day burns. If notified at least
two days in advance of extended period burns and burns greater than 2000 tons,
the Smoke Management forecaster will, workload permitting, prepare a forecast
specific to the unit being burned.
E. Monitoring: When necessary, the State Forester shall monitor prescribed burning
operations by aircraft and/or other means to ensure compliance with the Smoke
Management Plan and to determine the effectiveness of Smoke Management
procedures. During marginal conditions or when burning is being conducted near SSRAs
or other smoke sensitive areas, monitoring of smoke behavior should be intensified as
needed by using lookouts, aerial observations, and on-site observations of smoke
behavior. A recommended aerial monitoring form is provided in Appendix 4. For some
areas, near real-time data from DEQ air quality monitors and cameras are available via
the internet. This information is used in the preparation and validation of daily Smoke
Management instructions and in the evaluation of smoke impacts.
F. Audits: To evaluate compliance with the Smoke Management Plan, the State Forester
shall conduct a review of approximately one percent of the units burned each year in
areas under Level 1 regulation. Approximately one-half of the audits will be conducted on
the day of the burn and approximately one-half will be pre -burn audits. All units to be
audited shall be randomly selected. Each burn day audit shall include a site visit during
burning, visual tracking and documentation of smoke behavior and movement, and a
determination of compliance with: (a) the conditions of the burning permit, (b) the
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provisions of the Smoke Management administrative rules and directives, and (c) the
applicable Smoke Management burning instructions. Each pre -burn audit shall include a
site visit before burning. An independent fuel inventory shall be conducted to validate
accuracy of tonnage estimates.
Following completion of the audits, a written report of all findings must be prepared and
forwarded to the Smoke Management unit. Results of these audits shall be summarized
and included in the reports of annual Smoke Management activities.
G. Reporting and Analysis: Data for all prescribed forestland burning throughout the state
must be entered into the Smoke Management data system.
The Smoke Management data system is maintained to provide for analysis of the
program, manage the collection of burn fees, and provide for calculation of prescribed
burning emissions. Data for registered, planned, and accomplished burn units shall be
reported in accordance with Appendix 1.
Alternative practices to reduce burning are contained in OAR 629-048-0200. Field
administrators and federal land managers are encouraged to report application of
these practices with an estimate of the reduction of material burned to the
Smoke Management unit.
2. Use of best burn practices to reduce emissions (OAR 629-048-0210) is
encouraged to minimize emissions. Additional information on emission reduction
techniques and alternative practices may be accessed through the ODF web
pages on the Internet. Informing the Smoke Management unit of specific actions
taken to reduce emissions is encouraged.
H. Smoke Impacts: There are two types of smoke impacts: verified smoke intrusions of
smoke into SSRAs and verified smoke incidents where significant smoke enters an SSRA
at levels below a smoke intrusion (OAR 629-048-0005(27), a Class I Area or other
sensitive/populated areas. For two Class I Areas, extra effort (use of test fires or balloon
releases to check wind direction or coordinating with the duty forecaster) is needed to
keep smoke from the main plume of a prescribed burn from impacting the Kalmiopsis
Wilderness and Crater Lake National Park during October and November. If a complaint
is received, or district personnel become aware of a smoke intrusion or smoke incident,
the District Forester shall assign a qualified individual to conduct an investigation and
document the findings.
Smoke Intrusions (OAR 629-048-0110): An intrusion occurs when verified smoke
from prescribed burning enters an SSRA at levels defined in OAR 629-048-0005
(27). For every smoke intrusion, the source of the impact, the duration, and the
magnitude of the intrusion will be determined, if possible. Magnitude shall be
determined using particulate matter readings when available, or estimated from
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the reduction of visibility in the smoke intrusion or smoke incident area.
When particulate matter readings are available, smoke incidents or smoke
intrusions will be characterized based on particulate matter values
averaged over a one-hour period, or a 24-hour period from midnight to
midnight beginning on the first day of smoke entrance.
a. Visibility: If no particulate matter data is available, or if smoke impacting a
community is not observed by a particulate monitor, the short-term (hourly)
impact may be estimated from reduction of the prevailing visibility.
Distinguishing between a smoke intrusion or a smoke incident based on
visibility estimates shall be characterized as follows:
SMOKE INTRUSION/INCIDENT CLASSIFICATION BASED ON VISIBILITY REDUCTION (RV)
(For instructions on estimation of visibility see Appendix 2)
Baseline
Visibility
(Miles)*
>50
INTRUSION VS INCIDENT
RV z 4.6
INTRUSIONINCIDENT
RV < 4.6
25-50
RV 4.4
RV<4.4
20-24
RV 4.1
RV<4.1
15-19
RVz3.8
RV<3.8
10-14
RV>_3.5
RV<3.5
5-9
RVZ2.5
RV<2.5
3-4
RV>_ 1.8
RV<1.8
1-2
RV 0.5
RV<0.5
<1
RV=0
*Baseline visibility is based on optimal visibility with little, if any, discernable visibility restriction. Visibility
changes due to naturally occurring phenomena must be factored into the classification as needed (e.g.,
the change from daylight to dark, blowing dust or sand, rain, fog, etc.)
2. Smoke Intrusion Reporting:
a. Preliminary reports shall be issued by the Smoke Management
forecasters when they become aware that smoke has entered, an SSRA
reaching intrusion criteria (OAR 629-048-0005(27). Field administrators
must inform the forecaster as soon as they become aware of impacts.
Preliminary reports shall be transmitted via email to interested parties as
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soon as practical.
b. Final smoke intrusion reports shall be prepared for all smoke intrusions.
The report consists of two sections. The first section is completed by the
Smoke Management forecaster within two working days and submitted to
the burn boss or district forester for completion. The report is then returned
to Smoke Management and distributed to interested agencies. A report
format is provided in Appendix 2.
C, Smoke intrusions that meet or exceed the 24-hour average PM2.5 value of
35 micrograms per cubic meter (National Ambient Air Quality Standard)
exceedance will be reported to Smoke Management and the Department of
Environmental Quality (DEQ) as soon as possible, but no later than 1
business day after the burn is completed. Reporting will be similar to smoke
intrusions but will include management actions (see Appendix 2) to prevent
this type of intrusion from occurring in the future. ODF and DEQ will
coordinate and agree to what preventative actions will be taken.
3. Smoke incidents: The entry of smoke into Class I Areas, smoke sensitive areas,
populated areas that are not designated as SSRAs, or enter SSRAs below the
levels of an intrusion shall be evaluated and logged internally, describing the date,
time, duration, location, magnitude (if available), area affected, responsible
agency, and any noteworthy comments. A smoke incident log is provided in
Appendix 2.
Complaints: Complaints shall be investigated, appropriately treated, recorded, and the
complainant informed of the investigation results in a timely (consistent with other
workload), courteous, and professional manner. Data gathered through complaint
investigation shall be reported periodically in accordance with OAR 629-048-0450.
A complaint is any report of smoke alleged to be from forestry activity that may
adversely impact public health or protected visibility. Any grievance, tip, information, or
inquiry which (1) calls into question forest prescribed burning practices such that an on-
site investigation is deemed necessary, or (2) appears likely to be a recurring problem
such that documentation seems necessary should be treated as a complaint.
1. Receiving Complaints: Districts and Salem Smoke Management staff shall:
a. Respond to the complainant in a timely manner.
b. Follow up with appropriate action to the satisfaction of the District Forester.
C. Maintain a written record containing at least: the nature of the complaint,
names of those involved in the investigation, findings, and action taken.
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This record shall be kept on file for two years. Copies shall be sent to the
area office and the Salem Smoke Management unit.
d. Inform the complainant of the opportunity to receive follow up of
investigation findings.
2. Initial Contact: When a complaint is received, the person receiving the complaint
should use the Smoke Complaint Report form found in Appendix 2 of this
directive to record the name(s) of the complainant, the description of the
complaint, and where the problem is located. If the complaint is received in
Salem or by a district other than the one with geographic responsibility, it shall be
referred immediately by the person taking the complaint to the proper district.
a. If the complainant begins to provide information about health effects
resulting from a smoke incident, interrupt the complainant to explain that
medical information received by the ODF will become part of the public
record and confidentiality cannot be assured.
b. If a smoke incident or smoke intrusion is ongoing when the complaint is
received, reasonable effort should be made to dispatch the nearest
qualified department personnel to the location in question to observe and
document the date, time, duration, magnitude, location, scope, and origin
of the smoke.
3. Investigation: Other agencies that may have a role in investigating a complaint
shall be promptly informed after the initial contact. ODF personnel will cooperate
with other agencies involved in joint complaint investigations.
a. If the complaint involves an ongoing occurrence, an individual qualified to
and capable of investigating the complaint shall be dispatched to the
scene immediately. Exceptions must be approved by the District Forester.
If the problem does not require immediate attention, an onsite
investigation may be made at the earliest convenience if such site
inspection will contribute to the resolution. In all cases, the complainant
should be informed of the planned inspection time, if appropriate.
b. Observations, notes, and evidence (if appropriate) shall be
made/collected in order to make the following determinations:
i. Does the problem involve the Smoke Management Plan (prescribed
burning of forest fuels on forestland)?
ii. Are there any violations? (If so, follow proper enforcement procedures.)
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iii. What may be done to correct the problem?
iv. What actions may be taken to prevent recurrence of the impact?
4. Follow-up: After the investigation is completed, and with the approval of the
District Forester on the findings and any necessary follow-up action,
complainants who requested investigation information should be contacted and
informed of the findings and follow-up action.
5. Reports: A written complaint investigation report or intrusion report as
appropriate must be made for all complaints received. For most complaints, use
the complaint form in Appendix 2. This form will be sufficient if it contains the
minimum information listed above.
For complaints involving violations, or for which evidence has been collected, an
expanded investigation report containing pictures, correspondence, and/or other
data maybe appropriate.
A file of these reports shall be maintained at the district. Copies must be sent to
the area office, Salem Smoke Management unit, and other agencies involved in
the complaint. A summary of complaints will be made available to the Smoke
Management Advisory Committee when requested.
SSRA Listing Evaluation Procedures: OAR 629-048-0150 establishes criteria for
evaluating proposed listing of areas as SSRAs. Using these criteria, an evaluation of a
recommendation must be made for consideration by the Board of Forestry. Analysis shall
be conducted with the assistance of DEQ air quality staff. This evaluation will consider:
Review of prior smoke incidents. Reports of incident investigations will be used to
quantify the duration, magnitude, and frequency of impact from forestland
prescribed burning.
a. The cause(s) of the impacts to determine the likelihood of similar events in
the future. Consider the potential of repeated or long-lasting impacts.
b. The results of objective measurements, monitoring, or study efforts.
C. Burning programs/plans for areas that could drift smoke into the area.
d. Geographic factors that would tend to funnel smoke into the area.
e. Population and trends for population growth within the community under
consideration.
Impact on prescribed burning programs in the surrounding area.
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g. Probability of the area exceeding National Ambient Air Quality Standards
due to potential prescribed burning smoke impacts.
h. Consideration for other air quality improvement projects ongoing or
planned for the area.
i. Analysis of complaints received, community or governing agency
concerns, and recommendations for addition of the area.
Once the evaluation is complete, a report of the results of the analysis must be prepared
and a joint recommendation of ODF and DEQ must be submitted to the Board of
Forestry. In the event an agreement cannot be achieved between the two departments,
ODF will include an explanation of the lack of agreement in the recommendation.
K. Community Response Plan and Exemption Request: With increased potential for
smoke impacts into SSRAs and other smoke sensitive areas, OAR 629-048-0180
outlines a communication framework to inform vulnerable SSRAs about the impact of
prescribed burning smoke and how a community can know when they may be impacted
by it. These communities will be encouraged to develop a response plan to notify their
citizens of potential smoke impacts and how they can reduce their exposure.
ODF Salem headquarters will develop and distribute a communication framework
that will include at least the: (1) purpose and importance of prescribed burning, (2)
health risks of wildfire and prescribed fire smoke, (3) how SSRA residents can find
out about daily burn plans, and (4) notification of potential prescribed burn smoke
impacts.
2. ODF and DEQ will recommend that SSRAs which have experienced repeated
smoke incidents and intrusions develop a community response plan lead by the
local health department, and in coordination with the local ODF or federal forest
district office on how to respond when notified that prescribed burning smoke may
enter their community.
3. Communities that develop a community response plan may request an exemption
to the one-hour intrusion threshold through their local governing body and County
Commission. The request for exemption will be considered for approval by ODF
and DEQ under the advisement of Oregon Health Authority.
L. Quantification of Forest Residues: Consistent evaluation of the fuel available and
consumed in each prescribed burn is important for estimating the emissions produced
during the burn. Accurate pre -burn quantification of material is essential in minimizing
errors in the emissions estimates.
The fuel consumed by a prescribed burn is calculated by:
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a. Determining total pre -burn fuel tonnage load.
b. Determining average pre -burn duff depth, litter depth and type.
C. Computing woody fuel consumption using available tools developed to
predict woody fuel consumption.
d. Calculating and adding duff and litter consumption.
2. Estimation of the total pre -burn fuel tonnage should be through the application of
the "planar transect methods" of inventorying forest residue such as the Brown's
inventory method, by use of "Photo Series for Quantifying Forest Residue," or
through supplemental photographs developed for specific areas and fuel types.
Only if the preceding methods cannot be used should other estimation procedures
be employed.
a. Instructions for the actual measurement of fuels are contained in the
"Handbook for Inventorying Downed and Woody Material," U.S.D.A. Forest
Service General Technical Report INT -16, 24p, Intermountain Forest and
Range Experiment Station, Ogden, Utah. Instructions for the ODF fuel -
loading technique can be found on the Oregon Smoke Management
website.
b. Digital Photo Series and other estimation aids may be accessed through
ODF Smoke Management web pages.
C. Instructions for fuels inventory and consumption procedures are available
via the Internet or from the ODF Smoke Management unit.
3. For units that have already been piled, one of the three following methods should
be used:
a. Statistical sample of pile volume is the preferred method. In the statistical
sampling method, a randomly selected group of piles is measured and the
corresponding pile type is assigned to each sampled pile (Appendix 2).
Species of the debris in the piles is determined and calculation of the total
material is made through the Piled Fuels Biomass Emissions web
application (https:Hdepts.washington.edu/nwfire/piles/), BlueSky
Playground, Consume, or through manual calculations.
b. Aerial photo interpretation may be used when large-scale aerial
photographs of slash piles in harvested units can be evaluated to determine
dimensions and volumes. References for application of this technique may
be obtained via the Internet or the Pacific Northwest Research Station,
USFS.
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C. Ocular estimate of pile volumes in which the size and number of piles to be
burned is estimated through visual techniques where irregular and differing
pile types are "smoothed" to an overall size and shape of pile. Estimate of
the total amount of material to be burned is then calculated through one of
the approved procedures or computer applications.
4. Consumption of material during the burn is estimated using the same tools as for
pre -burn fuel loading or through the use of consumption calculation software
applications. Post -burn fuel loading may be estimated using measurement
samples or reapplication of the photo series. Additionally, the ODF fuel -loading
calculator
(http://smkmqt.com/weather/tools/fuel loading/fuel loading tool home.html ), the
BlueSky Playground(https:Hplayground.airfire.org), or USFS Consume application
to estimate fuels consumed during the prescribed burn may be used. These may
be obtained on the Internet and are also available from the Smoke Management
unit.
RESPONSIBILITIES:
A. Fire Protection Division Chief: The Fire Protection Division Chief is responsible for the
coordination of the Smoke Management Plan with cooperating agencies and state and
regional air quality authorities.
B. Fire Protection Division: The Smoke Management unit is responsible for the day to day
operation of the Smoke Management program, including:
Issuing Smoke Management forecasts and instructions. Forecasts and
instructions shall be issued daily during periods of substantial burning (normally
March through June and late September through December). These forecasts are
monitored and updated as necessary. When routine written instructions are not
being prepared, meteorologists shall coordinate and approve prescribed burns on
a case by case basis.
2. Maintaining the Smoke Management data system. All forestland burning shall be
entered into the data system in accordance with the instructions in Appendix 1.
3. Coordinating with field administrators and identifying and conducting necessary
training.
4. Monitoring the Smoke Management program and providing required summary
reports and information to interested parties. Smoke Management unit personnel
will prepare reports summarizing annual forestland prescribed burning activities,
pertinent emissions information, and summaries of audits and smoke incidents.
Protection
07/14
OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM
DIRECTIVE
1-4-1-601, p. 13
C. Area Directors District Foresters and Unit Foresters are responsible for ensuring that the
provisions of this directive are met and that prescribed burning activities are conducted
within the requirements of the Smoke Management rules.
D. Field Administrators: ODF and federal land management agency field administrators
oversee prescribed burning in accordance with the Smoke Management rules, this
directive, and daily Smoke Management instructions.
Federal land managers are required by the federal Clean Air Act to follow the directions of
the forester for the protection of air quality in their prescribed burning operations.
E. Burn Bosses: Forest landowners/operators are responsible to conduct forestland
prescribed burning according to the Oregon Smoke Management Plan, requirements of
field administrators and the instructions issued by the forester.
REVIEW: The Smoke Management directive shall be reviewed according to OAR 629-048-
0450(5). The review will be conducted jointly by the State Forester and the Director of
Environmental Quality and will include representatives of affected agencies and parties.
AGREEMENT:
In witness whereof, the parties have agreed to the standards and procedures set forth in this
directive.
State of Oregon
Department of Forestry
State of Oregon
Department of Environmental Quality
By:
By:
Title:
Title:
Date:
Date:
Protection
07/14
REPORTING SYSTEM
SMOKE MANAGEMENT PLAN
DIRECTIVE
1-4-1-601, p. 14
Appendix 1, p. 1
General: ODF maintains a computer database to record and administer Smoke Management data.
State and private Smoke Management data is entered by field offices into the database via the ODF
network. Federal data is collected and consolidated at the USFS regional office and transferred
electronically to ODF.
The reporting system is designed to provide a record of:
A. Forestland scheduled for prescribed burning.
B. Locations and amounts of daily planned burning.
C. Burning that has been accomplished.
D. Fee collection and administration information.
E. Historical data for calculation of emission estimates and other summaries.
Area Included: Reporting is required throughout the state. The procedures and requirements for
frequency of reporting in different areas of the state are identified below. Data are grouped by
administrative units, i.e., national forests, Bureau of Land Management districts, national parks, and
state forest protection districts.
Types of Burning to be Reported: All burning related to forest management activities should be included
in the reporting system, except as noted below. Examples of reported data include slash and brush
disposal after logging, road building, scarification, or burning of brush fields for reforestation.
Types of Burning That Should Not be Included: The following types of burning are not under the
authority of the Smoke Management Plan and should not be entered into the Smoke Management data
system:
• Burning of household or yard maintenance debris such as paper, leaves, lumber, etc.
• Burning related to agricultural practices, including Christmas tree growing, orchard pruning, and
grass or grain stubble burning.
• Burning related to demolition, home or other construction, and building site preparation.
• Any burning done in conjunction with a land use change.
Protection
07/14
DIRECTIVE
1-4-1-601, p. 15
Appendix 1, p. 2
Frequency of Reporting: All burns must be entered into the data system prior to ignition. Detailed are
highlighted later in this -Appendix. In areas subject to Level 1 regulation, all planned and accomplished
burning is entered into the computer data system on a daily basis. Planned burns shall be entered by
the day of the burn and accomplishments are reported on the next working day after the unit is burned.
In areas of Level 2 regulation, planning burns in the data system is not required and, although daily
reporting is encouraged, accomplishments are required to be reported no later than the first working
day of the week following the burn.
Procedures:
A. For private, and local and state government burning:
A unit registration is entered into the data system for each burn unit. Information to be
entered is contained in Reporting System Coding Sheet (Part 1). These data are entered
into the data system at the local ODF field office. The ODF E -notification number,
obtained through the local ODF office, will be used for tracking burn units for all
landowners. For Level 1 regulated lands, registration is to be completed at least seven
days prior to a planned ignition. Districts may waive the seven-day requirement in
accordance with OAR 629-048-0300(2) but all units must be registered prior to burning.
2. Prior to 10 a.m. the day of the ignition, unit numbers of planned burns in Level 1 regulated
areas are entered into the data system by field offices. Part 2 is used to assemble the
information needed to plan a burn. A listing of planned burns is then compiled and made
available to all interested parties. Right-of-way burns need not be planned on a daily
basis.
3. An accomplishment report for each burn is submitted by field offices the day after
burning, using Part 3. Burning on Level 2 regulated lands must be entered into the data
system no later than the first working day of the week following the burn. The
accomplishments are posted as in paragraph 2 above.
4. Right-of-way burns shall be registered as per step one, above. Right-of-way burns do not
have to be planned prior to burning. Accomplishments are reported in accordance with
paragraph 3 above.
Protection DIRECTIVE
07/14 1-4-1-601, p. 16
Appendix 1, p. 3
B. For federal agency forestland burning:
Information required for registration is the same as for non-federal burning but units are
entered into the FASTRAX data system developed for use by the federal agencies. The
primary unit identifier shall be the E -notification number obtained through the local ODF
office, or a non -activity "406" number obtained through the Salem headquarters office. In
order to ensure unit information is transferred without error to the Smoke Management
database, registration must be completed at least 7 days prior to the planned ignition.
This may be waived by the State Forester in specific instances to meet agency needs but
all units must be registered prior to burning.
2. Units to be burned the next day shall be planned through FASTRAX by the day of the
burning.
3. Burning results for all federal burning shall be reported through FASTRAX the day
following the burn.
4. Smoke Management data for federal agencies is consolidated by USFS, Region 6 and is
then transmitted electronically to ODF. After this data has been input into the Smoke
Management data system, reports of errors and other information is sent back to the
USFS to verify receipt of the information and facilitate error correction.
5. To facilitate collection of rangeland burning emissions, data for this burning may be
entered into the data system as outlined above, using code "s" as the burn type.
Forms: The following forms below shall be used to gather Smoke Management information for entry
into the data system. These forms are available in electronic format on the Smoke Management
Internet pages. Locally generated forms are discouraged unless approved by the Smoke Management
unit manager.
Protection
07/14
OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM
DIRECTIVE
1-4-1-601, p. 17
Appendix 1, p. 4
OREGON SMOKE REGISTRATION PART 1:
UNIT IDENTIFICATION. Unit 1: Unit 2: Unit 3: Unit 4: Unit 5:
DATE REGISTERED:
REGISTRATION #:
DISTRICT ID:
OWNERSHIP CODE:
SALE NAME
TOWNSHIP
RANGE:
SECTION:
LATITUDE:
LONGITUDE:
COUNTY:
DISTANCE TO SSRk
UNIT ACRES:
CUTTING DATE:
ELEVATION:
BURN TYPE:
IBURN REASON
TREAT MEN I 7>UrVIMAKY:
OPERATOR NAME'
FUEL SPECIEIS:
LANDING R/W ACRES:
LANDING R/W TONS:
PILE ACRES:
PILE TONS:
BROADCAST ACRES:
DUFF DEPTH:
FUEL TONS PER ACRE (SOUND
0 - 1/4"
1/4 - I"
1-3"
3-91,
9 - 20"
20-1.
HEIGHT:
SHRUB TYPE:
SHRUB %CO'
COMMENTS:
BILLING INFORMATION:
Vendor ID:
FiMt Name:
Last Name:
Business Name:
Address 1:
Address 2:
City:
State:
7jP:
[Phone:
Protection
07/14
OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM
DIRECTIVE
1-4-1-601, p. 18
Appendix 1, p. 5
OREGON SMOKE RE61STRATION - PLANS (Part 2) -
Unit i Unit 2 Unit 3 Unit 4 Unit 5
Planned Gate:
Planned Time:
Acres Planned:
Landing R/W Tons Planned:
Pile Tons Planned:
Broadcast Tons/Acres Planned:
Actual Burn Gate:
Actual Burn Ignition Time:
Landing R/W Tons Burned:
Pile Tons Burned:
Broadcast Tons/Acres Burned:
Guff Fuel Moisture:
Fuel Moisture 10 HR %;
Fuel Moisture 100 HR %
Fuel Moisture 1000 HR Code:
nays Since Simificant Rain:
Speed:
Protection DIRECTIVE
07/14 1-4-1-601, p. 19
Appendix 1, p. 6
OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM
Alternative Smoke Nianagement Registration (Part 1 of 3)
Fee payer Name:
I] operator
Landoi%mer
Billing
Address
Street:
Cit}':
Staten :gip Code:
Phone Number.
Signature -
Operator Name. Of different than, ,fee pqw- :
Date Register:
District ED:
Litter Deprh (i.e. 1. Y)
4eFstratum—
Private 0 0 Fed -Not FS
tilt ulYutt, 1CtL1L UILL' lCLlLt a a-t+r1u iar�.kl x-uu
I R6 Fed (F) rl USFS (U) M State, County, City (S)
R S
N E Distance to
Legal Locatio= 'MN � G �� C _ County : I I SSRA
Longitude (-DDD.DDDD) Decimal. Degrees Dzy, must include the
(i'•atal acres the material
Total Unit Acres: vase ie burning came from.)__ Date 70% Felled
Type of
beim tB) Eeoad�ast .°�ctisitl 4D:� grapple Pile � Uj I � �ctii-in- CVD "'xAug flit R•:',a'
Files D x
f heck 0l7M Broadcast Naural (K? Hand Fite �tit T"+e .51 Range
C117) Tractor PiL
C7nl., 2V
`If unit has landing piles in addition to araatfur type of burn, DO N[. T check Landing Piles Onh; check the box that
pertains to the mgjority of your unit, and enter the Landing pale taans in the space below.
j Burn Hard Redt, DAW, t'si dliie Halaitat yPB Forest-tealth {Rft Forest Health Wai:pG.
Reason: C]a:B) Hazard &53I $ aS) k g 04Ry Other (311) I,t;). 2 Reg_, Fee L%eeupt
-en- 'C(I Hardwood f41i�edCo�ier �(8) PrsYSpecies:) Douglas Fir.
C &. l I3 (S) 5age,'liitreibrush E3 (G) Grass 00 Ponderosa. 0 (L) LZUZ le
7 ^�a.-ar
Duff
R,'T1' Ac Rr ii' tesffa
To: Ac: Tos: BE= Ac: Depth:
Fuel Toxuaage Tons.. acre (C-.2 "1 Tc s. acre (2 1°°:p Tons. ,4cre ,1 1 3.1
i_.. _._..
Acres: Tons,,Acre. (3,1-9") ! i Tons. Acre (9.1-20") ; Tons,'Ac. 1,20.1"-)
Forest Floor Litter Tp re:
Short Needle
Long Needle
Other
Deciduous
1 0 Evergreen
0 Grass
Pie
Pine
Comi`er
Hardwood
I Hardwood
Litter Deprh (i.e. 1. Y)
Litter coverage on ground ti'.
Rott+eit StumjYs: G-ktarage Diameter, Height; and Density or amount per acre.','
Diantieten
Diameter:
-i
Diameter:
Height:
Height:
a
Height:
Density :
Density_
Density -
Live
laze Shrub
live Shrub Tons
Shrub
Height:
per Ac:
Ti)Te &
c4AW .its
Co=mL-mt5: THIS IS NOT A ELMNUXG lrF.RM17. 02 units wrist be registered a rniniumm of 7 dak'8 before burning, earlier
is preferred.)
Protection
DIRECTIVE
07/14 1-4-1-601, p. 20
Appendix 1, p. 7
OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM
G Alternative Burn Plan (Registration Part 2)
Operator. Phone:
Planned Date of Burn: Planned Ignition Time,
Acres Planned: Landing - RAV Tons Planned: Pile Tams Planned:
Special Problems and Mitigation Instructions:
Persoxi el:
F)quiprme=
Other:
lvlop-up and patrol is required to prevent the spread of fire from the planned unit. blob -alp and
patrol -will be provided by the latadm%mex or operator until the danger of fire spreading is over.
Sufficient contingency .force must be provided by the landoi%mer or operator to ensure control
of this bur during periods of adverse weather conditions.
Pursuant to OIL'S 47TO66, 067, 068, and 120 the Landonmer and Operator identified on than
plan shall immediateb� proceed to control and extinguish any uncontrolled fire escaping the
planned bum area anis be liable for alp to $5300."0 of the Forester's ire suppression costs. In
case the Landot `ner or Operator fails to perform the duty required, or is i-%Illful, malicious, or
negligent in the fire origin, or subsequent spread, or fails to make every reasonable effort, the
actual costs incurred by, the Forester, or a Forest Protection Association in controlling and
extinguishing the fire shall be paid bry the Landox% er or Operator.
Signature of Operator:
Signature of ODF Forester:
Date:
Date:
Attach a nap of the unit which shows: 1) access routes, 2) unit boundaries, 3) imer sources,
4) ureas, 5) control lines, 6? adjacent fuels, ) adjacent landowners.
Ilbursss aof 530. RepstraatonFee = 5)3.50,-`2r. T-Mdir_- B=mz (total harvest ac.)
Eresti3�astr'�CActw�-lAcreaze of with cams; 33.10:`ac. i%ithat Lendings.
Fit_d burn. (Aatwd.kcaeaga of Bum Axea0 = S._E4:+'ac tiyith 7'nVis; witb,aut landings.
Protection
07/14
OPERATIONAL GUIDANCE FOR THE OREGON
SMOKE MANAGEMENT PROGRAM
DIRECTIVE
1-4-1-601, p. 21
Appendix 1, p. 8
Alternative. Accomplishment Section, (Registration Part 3)
Operator Name, Phone:
Uhit.Name: Registratiun -f"+:
Acmal Burn Date: Actual IgAtiou Time:
Actual kcres Buxned' Tons Burned:
Pile Tons Burned: Broadcast Tuns/Ac. Bumed:
Total BroadcastT"vns Burned: Total Tons Burned;
Ignition Du rat ow Achieved Rapid Consumption: Shrub Consumption:
Duff Fuel Moisture: Fuel Moisture 10Hr 1000FAT%
Fuel Moisture: Code: Ci NMR- (10O0br moi_sn.are fromI\TFDPS model)
(uses adjusted moisrures)
r j- Weighted (oven weighted samples)
Dal s Since SigaambcaW Rain: ted :Speed:
Additional Comments:
Protection
07/14
INSTRUCTIONS FOR REPORTING SYTEM CODING SHEET
DIRECTIVE
1-4-1-601, p. 22
Appendix 1, p. 9
Unless otherwise specified, data shown in quotation marks (" ") should be entered without the quotation
marks. All entries are mandatory unless indicated otherwise. Entries consist of only numbers or letters.
No special characters such as dashes, commas, etc. may be used.
PART ONE: REGISTRATION INFORMATION
1. Date registered: Enter the day of registration in MM/DD/YY format.
2. Registration number: Twelve digits, the ten (10) digit E -notification number obtained
through the Forest Practices program plus a two digit unit extension that can come from
either the E -notification system or can be generated locally. Enter data as one, twelve -
digit number with no spaces, dashes, or other characters. For natural, "non -activity" units
without E -notification numbers, contact the Salem Smoke Management unit. Blocks of
100 "406" numbers will be issued to local offices for conducting these burns. Units should
not be re -registered using a different number during the three-year burning window
available under the original registration.
3. District or Forest Identifier: A three -digit code as shown in the table, "Smoke
Management District ID Numbers" later in this Appendix.
4. Ownership type:
USFS - U Federal (BLM) - F
Other Federal — O State, County, Municipal — S
Private - P
5. Sale name: Up to 20 characters, letters, and numbers only with no punctuation.
6-8. Legal: Enter location by township, range, and section, but do not include the letters "T",
"R", and "S". Partial townships may be entered. "1/4, 1/2, and 3/4" partials should be
entered in decimal format as "2, 5, or 7", respectively after the full township or range. If
the unit covers more than one section, enter the predominant section number.
6. Township
7. Range
8. Section
Protection
07/14
DIRECTIVE
1-4-1-601, p. 23
Appendix 1, p. 10
INSTRUCTIONS FOR
REPORTING SYSTEM CODING SHEET
PART 1: BASIC UNIT INFORMATION (Cont.)
Examples:
Field Number
10 11 12
T10S-R10W-S33 10S 10W 33
T101/2S-R11E-S25 10.5S 11E 25
T9 3/4S -R7 1/2E -S6 9.7S 7.5E 6
9. Latitude: Use decimal degrees only. Enter two digits to left of decimal and four digits to the
right of the decimal.
10. Longitude: Use decimal degrees only. Enter a "- sign and three digits to the left of the
decimal and four digits to
the right of the decimal.
11
12.
County Number:
01
Baker
10
Douglas
19
Lake
28
Sherman
02
Benton
11
Gilliam
20
Lane
29
Tillamook
03
Clackamas
12
Grant
21
Lincoln
30
Umatilla
04
Clatsop
13
Harney
22
Linn
31
Union
05
Columbia
14
Hood River
23
Malheur
32
Wallowa
06
Coos
15
Jackson
24
Marion
33
Wasco
07
Crook
16
Jefferson
25
Morrow
34
Washington
17
Josephine
26
Multnomah
35
Wheeler
N81Curry
Deschutes
18
Klamath
27
Polk
36
I Yamhill
Distance from nearest Smoke Sensitive Receptor Area (SSRA) boundary: Round
to nearest mile. If within SSRA, use 0. If more than 60 miles, enter "60".
Protection
07/14
INSTRUCTIONS FOR
RECORDING SYSTEM CODING SHEET
PART 1: BASIC UNIT INFORMATION (Cont.)
DIRECTIVE
1-4-1-601, p. 24
Appendix 1, p. 11
13. Acres in unit: Enter the total number of acres in the unit. Acreage for individual
treatment types will be broken out in data fields 21 through 26, below.
14. Date when 70% of the cutting was completed: Enter the six -digit code "yyyy-mm",
e.g. "2009-12" means that December 2009 was the cutting date. Leave blank for natural
fuels or no cutting.
15. Elevation of burn: Elevation of burn above sea level in feet. Enter average elevation to the
nearest 100 feet.
16. Slope: Enter actual average slope. Maximum of three digits, do not enter % symbol.
Example: 30% slope is entered as "30".
17. Type of burn: Enter the predominate type of burning. Do not enter "L" for units that are
a combination of landings and other burn types.
Broadcast Activity - B Underburn Activity - U
Broadcast Natural - F Underburn Natural - N
Handpile - H Grapple Pile - G
Tractor Pile - T Landing Only - L
Right-of-way — R Rangeland — S
18. Primary reason for burn:
Hazard Reduction - H Silviculture - S Forest Health - F
Wildlife Habitat - W Hazard and Silviculture - B Other - R
Forest Health, Maintenance — M Level 2 regulation, Fee Exempt — E
19. Operator Name: Individual or business conducting the burn (optional entry).
20. Predominant species of fuel:
Douglas Fir, Hemlock, Cedar - D Ponderosa Pine - P
Lodgepole Pine - L Mixed Conifer - M
Hardwood - H Brush - B
Juniper - J Grass - G
Sagebrush or Bitterbrush — S
Protection
07/14
INSTRUCTIONS FOR
REPORTING SYSTEM CODING SHEET
PART 1: BASIC UNIT INFORMATION (Cont.)
DIRECTIVE
1-4-1-601, p. 25
Appendix 1, p. 12
21. Landing or right-of-way pile acres: Enter the total number of acres from which the
material was collected. If less than 1, report as 1. Include all landing acreage for the unit.
22. Landing and right-of-way pile acres: Enter the total acres of material contained within
all landing (and right-of-way) piles that will be burned. Do not include broadcast woody
loading or in -unit piles in this entry (See item 28-33). Leave blank if there are none.
Note: Landing/right-of-way and in -unit piles must be registered separately to facilitate
fee assessment.
23. Landing and right-of-way pile tons: Enter the total acres of material contained within
all landing (and right-of-way) piles that will be burned. Do not include broadcast woody
loading or in -unit piles in this entry. Leave blank if there are none.
24. Piled acres: Enter the number of acres expected to be burned as in unit piles. Leave
blank if there are none.
25. Piled tons: For piled burns, and piles (other than landing or right-of-way piles) on
broadcast and underburn units, enter the pile tonnage expected to be burned; in the
unit. Leave blank if there are none.
26. Broadcast acres: Enter acres of broadcast or underburning expected to be burned.
Leave blank if there are none.
27. Average duff depth: Report to the nearest tenth of an inch. Do not include the decimal
when reporting. Example: 1.6 inches of duff should be reported as "16".
28-33. Woody loading in broadcast and underburns: Reported as tons per acre by size
class. For natural fuels burns, include all fuel types in the appropriate size classes.
Round all data to the nearest ton/acre.
28. 0 - 0.25" loading
29. 0.26 - 1.00" loading
30. 1.1 - 3.00" loading
31. 3.1 - 9.00" loading
32. 9.1 - 20.00" loading
33. >20" loading
Protection
07/14
INSTRUCTIONS FOR REPORTING SYTEM CODING SHEET
DIRECTIVE
1-4-1-601, p. 26
Appendix 1, p. 13
34-36. Forest floor fuel (optional entry):
34. Litter type: Choose one of the following:
Short needle pine
Long needle pine
Other conifer
Deciduous hardwood
Evergreen hardwood
Grass
35. Litter depth: Record in 10ths of inch.
36. Litter coverage percent: Percentage coverage for entire unit.
37-39. Rotten fuel tons per acre (optional entry): Reported as tons per acres by size class.
37. 3 — 9" loading
38. 9 — 20" loading
39. >20" loading
40-42. Rotten stumps (optional entry): Report diameter in inches, height in feet (use decimal
value for a partial foot), and density number of stumps per acre.
40. Diameter
41. Height
42. Density
43-46. Live fuels (optional entry):
43. Shrub type: Choose one of the following.
Broadleaf
Evergreen
Sage
44. Shrub percent coverage: Coverage over entire unit
45. Shrub height: In tenths of feet
46. Tons per acre: shrubs consumed by burning
47. Comments (optional entry):
Protection
07/14
INSTRUCTIONS FOR
REPORTING SYSTEM CODING SHEET
PART 2: PLANNED BURN
DIRECTIVE
1-4-1-601, p. 27
Appendix 1, p. 14
The following information shall be entered into the computer by the day the unit is planned for
burning for all districts and forests in Level 1 regulation, except for right-of-way piles. Planning of
right-of-way piles and areas in Level 2 regulation is encouraged but not required.
Unit number: The twelve (12) digit number that was entered in Part 1 is entered.
2. District or forest identifier: As used in Part 1.
3. Planned date: Enter the date the unit is planned to be burned using the format mm/dd/yy.
4. Estimated ignition time: Use the 24-hour clock and local time. For example, a planned
ignition time of 2:00 p.m. is entered as 1400.
5. Acres planned: Enter the number of acres that are planned to be burned. For piled units
this is the acres from which the material was gathered.
6-7. Expected fuel consumption:
6. Landing pile tons: For right-of-way and landing pile units, enter the total tons
expected to be burned. Leave blank if there are none.
7. Unit pile tons: For piled burns, and piles (other than landing or right-of-way piles)
that are planned to be burned on broadcast and underburn units, enter the pile
tonnage, in total tons, of woody material expected to be burned. Leave blank if there
are none.
8. Expected fuel consumption in broadcast or underburns: Enter the number of tons of
woody fuel, excluding piles and ground fuel expected to be burned in tons per acre.
Protection
07/14
INSTRUCTIONS FOR
REPORTING SYSTEM CODING SHEET
PART 3: ACCOMPLISHED BURN
DIRECTIVE
1-4-1-601, p. 28
Appendix 1, p. 15
The following information shall be entered into the computer the next business day after the
burning occurred for all districts and forests in Level 1 regulation.
For right-of-way piles and all burning in areas of Level 2 regulation, accomplished burning shall
be entered into the data system by close of the first business day of the week following ignition.
Daily reporting of accomplishments in Level 2 areas is encouraged.
For landing and piled units only items 1 through 8 need to be reported.
Unit number: Use the twelve (12) digit number that was entered in Part 1 and Part 2.
2. District or forest identifier: As used in Part 1 and Part 2.
3. Actual date of burn: Enter the date the unit was burned using the format mm/dd/yy.
4. Actual ignition time: Use the 24-hour clock and local time.
5. Number of landing/right-of-way acres burned: This can be more or less than the
number planned. Include slop -over acres in the total. Report only those acres treated by
fire, not the total unit size if different. In the event more acres were burned than initially
registered and this area was not treated as a wildfire, the additional acreage must be
registered and accomplished as a separate unit. Fees shall be applied as appropriate.
6. Landing or right-of-way tons burned: (may be more or less than that entered in Parts 1
and 2): Enter the total tons of material actually burned in the piles.
7. Pile acres burned: Report only those acres treated by fire, not the total unit size if
different. This can be more or less than the number planned. Include slop -over acres in the
total. In the event more acres were burned than initially registered and this additional area
was not treated as a wildfire, the extra acreage must be registered and accomplished as a
separate unit. Fees shall be applied as appropriate.
8. Pile tons burned: Enter the pile tonnage, in total tons, of material burned. Do not include
landing or right-of-way tonnage in this field.
Protection
07/14
INSTRUCTIONS FOR
REPORTING SYSTEM CODING SHEET
PART 3: ACCOMPLISHED BURN (Cont.)
DIRECTIVE
1-4-1-601, p. 29
Appendix 1, p. 16
9. Fuel consumed in broadcast and underburn portion of units: Enter the amount of
woody fuel and ground fuel burned as tons per acre. This number can be more or less
than the entries made in Part 1 and Part 2.
10. Was rapid ignition achieved?
Enter "Y" or "N", use subjective judgment to answer.
11. Shrub consumption (optional entry): Percentage of shrubs consumed in unit.
12. Duff fuel moisture: Enter either dry (30%), normal (70%), or moist (120%).
13. 10 -hour fuel moisture: Enter the percentage, rounded to whole numbers. Example:
15.4% fuel moisture should be entered as "15".
14. 1000 -hour fuel moisture: Enter the percentage without the "W'. Example: 24% fuel
moisture should be entered as "24".
15. 1000 -hr fuel moisture code: Method used to determine. Enter one of the selections
below for the method used to determine 1000 -hr moisture.
Method
N FD R-th
Adj-th
Weighed
16. Number of days since significant rain: West of the Cascades: Enter the number of
days since 0.5 inches of rain have fallen within a 48-hour period.
East of the Cascades: Enter the number of days since 0.25 inches of rain have fallen
within a 48-hour period.
17. Wind speed: In miles per hour
Protection
07/14
SMOKE MANAGEMENT DISTRICT ID NUMBERS
District/Forest Unit ID
Astoria 521
Central Oregon 95x
Columbia Gorge
Scenic Area
Coos District
Coos FPA
Deschutes N.F.
Douglas FPA
Forest Grove
Fremont N.F.
Klamath N.F.
Klamath -Lake
Malheur N.F.
Mt Hood N.F.
Fossil 953
John Day 952
Monument 956
Prineville 951
Sisters 955
The Dallas 954
220
740
72x
Bridge 722
Coos Bay 721
Gold Beach 723
01x
Bend/Fort Rock 011
Crescent 012
Sisters 015
73x
Central Douglas 733
North Douglas 731
South Douglas 732
53x
Columbia City 532
Forest Grove 531
02x
Bly 021
Lakeview 022
Paisley 023
Silver Lake 024
Oak Knoll 301
98x
Klamath Falls 981
Lakeview 982
04x
Blue Mountain 041
Emigrant Creek 042
Prairie City 044
06x
Barlow 061
Clackamas 065
Hood River 066
Zig Zag 069
District/Forest
Unit
ID
National Park Svc
Wallowa -Whitman N.F.
09x
Eagle Cap
Crater Lake
090
164
Oregon Caves
091
North Cascade
Philomath
58x
Molalla
581
Western Lane
Santiam (Linn)
583
Willamette N.F.
Santiam (Marion)
582
Northeast Oregon
Detroit
97x
Baker
972
La Grande
971
Pendleton
973
Winema N.F.
Wallowa
974
Ochoco N.F.
Chemult
07x
Crooked River
202
National Grassland
075
Lookout Mountain
071
Paulina
072
Rogue-Siskiyou N.F.
10x
Gold Beach
103
Wild Rivers
102
Siskiyou Mountains
101
High Cascade
106
Powers
105
Siuslaw N.F.
12x
Central Coast
128
Hebo
121
Oregon Dunes
124
South Cascade
77x
Eastern Lane
771
Sweet Home
772
Southwest Oregon
71x
Central Point
711
Grants Pass
712
Tillamook
511
Umatilla N.F.
14x
Heppner
142
North Fork John
Day
145
Walla Walla
146
Umpqua N.F.
15x
Cottage Grove
151
Diamond Lake
153
North Umpqua
156
Tiller
152
DIRECTIVE
1-4-1-601, p. 30
Appendix 1, p. 17
District/Forest Unit
ID
Walker Range
991
Wallowa -Whitman N.F.
16x
Eagle Cap
165
Hell Canyon NRA
164
La Grande
166
Wallowa Valley
162
Whitman
163
West Oregon
55x
Dallas
552
Philomath
551
Toledo
553
Western Lane
781
Willamette N.F.
18x
Detroit
184
McKenzie River
187
Middle Fork
185
Sweet Home
183
Winema N.F.
20x
Chemult
201
Chiloquin
202
Klamath
203
Protection
07/14
Agency,
OREGON SMOKE MANAGEMENT
REPORTING SYSTEM CODING SHEET
RIGHT-OF-WAY UNITS
Month Forest/District
DIRECTIVE
1-4-1-601, p. 31
Appendix 1, p. 18
Unit #
1
XXXXXXXXXXXX
DATE
BURNED
2
mm/dd/yy
ACTUAL
IGNITION
TIME
3
XXXX
ACTUAL
TONS
BURNED
4
XXXXX
INSTRUCTIONS
Data is entered for each day a unit is
burned. Example, if a unit was
partially burned on 5 different days,
there will be 5 entries in the form.
1. Enter 12 digit unit number.
2. Data may be entered for the
calendar month but is reported to the
data system as required for the level of
regulation.
3. Right-of-way burning need not be
planned on a daily basis.
4. Ignition time is based on a 24-hour
clock, local time.
5. Report total tons burned during
each burning period.
Protection DIRECTIVE
07/14 1-4-1-601, p. 32
Appendix 2, p. 1
REPORTING SMOKE INTRUSIONS AND SMOKE INCIDENTS
A. Smoke intrusion and the smoke incident log provide a descriptive record of smoke
impacts into SSRAs or other sensitive areas. Intrusion reports shall be made for
prescribed burning smoke that enters SSRAs at levels defined as an intrusion. Smoke
entering SSRAs at levels below the intrusion threshold or other areas sensitive to smoke
shall be identified and reported as smoke incidents. The reports are used to evaluate the
causes of impacts and to identify potential areas of improvement in forecasts,
instructions, and operational procedures that will minimize future smoke impacts. The
incident log may be useful in an evaluation if the area is recommended for inclusion on
the list of SSRAs. Reports shall be summarized in annual analyses of Smoke
Management data compiled by the Smoke Management section.
B. Field units (i.e., state districts and associations, resource areas, and national forests) are
responsible for monitoring smoke from burning activity and reporting smoke impacts to
the Smoke Management Meteorologist. The Meteorologist will determine whether the
smoke impact is a smoke incident or a smoke intrusion. If the smoke impact is a smoke
incident it will be logged on a smoke incident log detailing the date, time, duration,
magnitude, area affected, responsible agency, and any pertinent comments. If the smoke
impact is validated as a smoke intrusion the Meteorologist will use Form 1-4-1-301 to
detail the impact.
C. The Salem Smoke Management unit completes sections A through E of the report. The
report will be forwarded to the field to complete section F. The field unit will return the
completed report back to the Smoke Management unit for dissemination to affected field
offices, ODF leadership, DEQ, and the Smoke Management Advisory Committee. In the
event that a smoke intrusion involves burns conducted in more than one field unit, the
Smoke Management unit will combine the individual field reports into a single summary
report. Additionally, the Smoke Management unit shall:
1. Prepare and transmit to applicable field offices preliminary reports of smoke
intrusions as soon as they become aware of smoke entering at particulate matter
levels above the one-hour or 24-hour thresholds.
2. Coordinate with other offices and agencies to develop descriptive reports of smoke
intrusions.
3. Prepare an annual summary of smoke intrusions and smoke incidents. This
summary is included in reports of annual Smoke Management activities required
by OAR 629-048-0450 and presented to the Smoke Management Advisory
Committee as needed.
Protection
07/14
F *M1TL
1-4-1-601, p. 33
Appendix 2, p. 2
REPORTING SMOKE INTRUSIONS AND SMOKE INCIDENTS
5. If a smoke intrusion is determined to exceed the National Ambient Air Quality
Standards (NAAQS), the Smoke Management Meteorologist will immediately
notify DEQ of the impact if DEQ has not already contacted ODF about the
intrusion. All other aspects of the intrusion will continue to be processed similar to
a smoke intrusion described above. When the intrusion report is complete and
disseminated, ODF, DEQ and members of the organization(s) responsible for the
burn(s) will meet either by phone or in person to discuss why the exceedance
occurred and how it can be prevented in the future. Details of any outcomes to
prevent future NAAQS exceedances will be highlighted in the Smoke Management
Annual Report.
Procedures:
Burn bosses, field administrators, or other forestry personnel shall report
suspected smoke impacts into SSRAs, Class I Areas, or areas sensitive to smoke
by telephone to the Smoke Management forecaster as soon as possible. If seven-
day operations are not in progress at Salem, then telephone by noon on the first
workday after the impact.
Personnel observing smoke entering an SSRA from burn units outside of their
administrative area should also submit telephone and written reports as outlined
above. In addition, they should notify the field office that has administrative
responsibility for the problem unit(s) of the fact that smoke is entering or about to
enter a SSRA.
2. An evaluation of the impact shall be made by field personnel, time and workload
permitting, to determine the extent, magnitude, and duration of the smoke impact.
Protection DIRECTIVE
07/14 1-4-1-601, p. 34
Appendix 2, p. 3
SMOKE INTRUSION REPORT
Form 1-4-1-301
lintrusion #: 2M lntrusion Da&qs)- Loca-fion(s)-
SECTIONS A-E TO BE COMPLETED BY SALEM FORECASTER:
MEMO
13- 114TRUSJGN SVMMARY.-
-1 'A'r--a-A#ected -( gA
Irin-ision
......................
-7 _J11111
. ... ... ... ... .. ... ... .. ... ... ..
3. 1 KRghe�st Pmt or lowest prvr jduf*nqintrusiqn)
W==r#-TM.r-
AA
1k:4 =R&IF-11
AA.Start of Ignitio
Af, End of it
Ignio
- He�.t bcsur
D. ODF SMOKE JHSTM)CTT0HS--
1 . V%fritten instrLictions (if applicable): -
2. Verbal instruc-tions (d applicable): -
E. SMOKE MANAGEMENT WF -A THER CSCE REPORT. -
1. Describe general vveat-fer condiflons (indtidirg obser.-ed mixing heights and transport winds):
2. Comments:
SECTIION F TO BE COMPLETED BY FIELD PERSONNEL:
F REW REPORT.-
Descrtbe general weatherconditions cbsear,.r2d du n® the burn period and for te next e. hours xsk-j
conditiens- end speed and direction. heitgN of smoke plukina, direction of smoke travel, etc.
2. Comm er is (N(3,te other so urceT,ufzmcA-e that may h, ave cantfibuted to Me- �rtnjsie3q):
3. Public complaints:
. ... ... ... ..
Smoke.-Pi.t,h:WF.n--=t Re
Protection
07/14
SMOKE INCIDENT LOG
DIRECTIVE
1-4-1-601, p. 35
Appendix 2, p. 4
c
w
E
E
V
c
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to
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�C
40
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F
C
Em
b
tO
O
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E
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Protection
07/14
SMOKE MAGNITUDE DETERMINATION
FROM VISIBILITY OBSERVATIONS
DIRECTIVE
1-4-1-601, p. 36
Appendix 2, p. 5
INTRODUCTION: When no particulate monitor data is available to determine the magnitude of a
smoke impact, visibility data may be used to estimate the level of impact when such data is
available from a reliable source. The observation procedure outlined below may be utilized by
field units to gauge impacts in areas where no monitoring data is available. Prevailing visibility is
used as a surrogate for particulate data. Use the procedure outlined below to determine
prevailing visibility and the visibility table in Appendix 2, page 6 to make an estimate of the
magnitude of a smoke impact.
OBSERVATION PROCEDURE:
Determination of sector visibility: When the visibility is not uniform in all directions, divide
the horizon circle into sectors which have approximately the same visibility. Using
available landmarks, aided by a detailed local area map, determine the greatest distances
that can be seen in each segment of the horizon circle. Base this estimate on the
appearance of the landmark. If the markers are visible with sharp outlines and little
blurring of color, the visibility is much greater than the distance to the markers. If a marker
can barely be seen and identified, the visibility is about the same as the distance to that
marker. When the visibility is greater than the distance of the farthest markers, estimate
the greatest distance you can see in that direction. Note the portions of the circle with
similar visibility characteristics.
2. Determination of prevailing visibility: After sector visibilities have been determined, resolve
them into a single value for reporting purposes. To do this, use either the greatest
distance that can be seen throughout at least half the horizon circle, or if the visibility is
varying rapidly during the time of the observation, use the average of all observed values.
Prevailing visibility should be reported in miles.
Protection
07/14
DIRECTIVE
1-4-1-601, p. 37
Appendix 2, p. 6
EXAMPLES — Determining Prevailing Visibility
(Prevailing Visibility indicated by asterisks
Visibility Approximate
(Miles) Degrees
5 90
r2112
2'/z * 90
5
2'/ 90
2 90
--
2'/4
2
Visibility Approximate
(Miles) Degrees
10 40
8* 150
6 8
6 70
5 100
10
5
8
Visibility Approximate
(Miles) Degrees
8 100
6 50
8
5* 130
5
4 80
-- __
6
4
Protection
07/14
DIRECTIVE
1-4-1-601, p. 38
Appendix 2, p. 7
OREGON SMOKE MANAGEMENT
SMOKE COMPLAINT REPORT
Complaint From:
Name:
Organization:
Address:
Phone:
Received by:
Name:
Office:
Date:
Time:
Complaint
Source:
r- Phone:
r- Mail
r In Person
r Email
r Other:
Investigated By:
Name:
Office:
Date:
Time:
Location of
Smoke Impact:
Location of
Smoke Source:
T R sec
Unit Number(s):
Description of
Complaint:
Inform the complainant that they have ability to receive follow-up.
Investigation
Results:
r Burn Permit Issued
Landowner
Reported Tons/Acres
Actual Tons/Acres
In data system
Citation issued
Instruction Compliance
Ir Referred to other Agency
r Other
Remarks:
Distribution:
r Smoke Management
USFS: R6 r District r
r District
BLM: State Officer- District r
r Area
Tribe/Other Agency i
Complaint No.
Signature
Date
Protection
7/14
1. Half -section of Sphere
W
Half of a ball, where the width Is
approximately twice the height,
and the sides are evenly rounded.
3. Half Cylinder
Ir
W,
Logs and debris are generally
aligned in parallel. Pile shape
Is rounded side-to-side, with
both ends of the pile approxi-
mately the same height.
5. Half Frustum of
Cone with
round
ends
>1
i,
DIRECTIVE
1-4-1-601, p. 39
Appendix 3, p. 1
SHAPE CODE CHARTS
2. Parabaloids
mound'
------.
w
•snort—�
n
�w w
Pile height is same as radius (half
diameter), but surface tapers in a
parabola towards the top.
Sides taper In a parabola towards
the top, where the height Is greater
than the radius (half the width).
Pile height is less than half the
radius, and the sides drop down
to the base in a parabola.
W?
4. Half Frustum --;
of Cone h=
Logs and debris are generally
aligned In parallel. Pile shape is
h . I , rounded side-to-side, but heights
of opposing ends are not equal
W (pile tapers).
Pile shape is generally the same as
#4, but the ends are rounded, and
appearance is similar to half a pear.
6.
W2
7. Irregular ..
Solid
h=
ig, tapering pile, rounded
e -to -side, with well-
nded ends. Widths of
opposing ends are not equal.
Irregularly-shaped pile with
h,!'straight but uneven sides. Dimen-
f 1 , sions for opposing sides are not
� necessaril ual
Protection DIRECTIVE
07/14 1-4-1-601, p. 40
Appendix 4, p. 1
AERIAL MONITORING
The form below (available on the department Smoke Management website) may be used
to record observations during aerial monitoring flights. Completed forms should be
forwarded to the forecaster after the flight has been completed.
Aerial monitoring should be conducted during periods of considerable burning and when
burning in less than excellent atmospheric dispersion conditions. Monitoring should be
scheduled far enough into the burns to determine the extent and direction of smoke drift.
Instructions for entries are found on the second page of the form. Flying parallel to the
smoke plume is recommended to ensure accurate determination of the direction of
movement of the smoke. The plume type diagrams provide a quick reference for
generalized descriptions. If they do not adequately describe the character of the observed
smoke, specific descriptions of observed plumes should be made.
The chart on the second page of the form may be used during takeoff and/or landing to
record a temperature profile using the aircraft outside air temperature sensor. These
profiles are an aid to help determine atmospheric stability and mixing height.
Protection
07/14
Aerial Smoke Monitoring Form
Date: Observer Takeoff Time Landing Time
Flight Route:
Weather Elements: (Cloud type and amount, Visibility, Haze Layers, etc.)
Air Quality/Other Burning:
DIRECTIVE
1-4-1-601, p. 41
Appendix 4, p. 2
Prescribed Burning Smoke Behavior
Smoke Layers Smoke Movement Remarks: (Plume type, surface smoke, dispersion,
Time Location Unit Number Base Top Low-level Aloft wind/shear, etc.)
Hlume i ypes:
"--fir CJ
1 2 L ,3 / 4 r,— fir 7J�r
-
S-9'
SSRA/Class I Area impact: Occuring Likely
Which Area: _
Smoke Source:
Level of Impact:
Protection
07/14
DIRECTIVE
1-4-1-601, p. 42
Appendix 4, p. 3
Flight Route: General description of area observed.
Weather Elements: Weather factors affecting smoke behavior. Cloud height and amount of sky coverage. Layers and
vertical development. Visibility. Haze layer(s) height, thickness, density. Aircraft measured wind direction and speed.
Air Quality/Other Burning: Haze or smoke layers as a result of industrial, agricultural, or other burning. Estimate
height, thickness, density. If possible determine if surface based or aloft. Identify sources if observable.
Time: Time of each observation made.
Location: Township, range, section or lattitude and longitude. Location relative to SSRAs if close.
Unit #: Identify number if was planned.
Smoke Layers: If smoke is layering determine top and bottom and estimate visibility or visibility change from clear air.
Smoke Movement: Determine or estimate movement of various levels or heights in a column. Look for shear layers.
Remarks: Other factors that would aid in data analysis. Length of layered smoke plume, smoke mixing down toward
surface. Downwind dissipation.
Plume Type descriptions:
1. Good vertical lift. Plume holds together. Little or no low-level smoke escape. Light wind, little shear.
2. Good vertical lift. Plume generally holds together. Column tilted by wind or top shearing off at relatively
high elevation.
3. Limited plume rise. Plume generally well defined with definite low-level downwind spread of layered smoke.
4. Poor lift. Smoke rises little. Tends to hold to a defined area but some escape or low-level smoke.
5. No column development. Smoke diffuses with little or no lift. Most smoke near surface with little tendency
to hold together. Smoke spreads.
6. Plume mostly intact. Indications of one or more shear layers apparent. Identify directions if possible.
7. Plume initially rises but bends over or mixes significantly back to the surface.
SSRA/Class I Area Impact: Identify area impacted or likely to be impacted, intensity of impact. Main plume, drift, residual.
TEMPERATURE PROFILE
Indicate temperatures during climb -out or
descent. Note inversion layers (temperature
increasing with height). Plot profile at right.
30T 40°F 50T 60°F 70°F 80OF 90°F
6K
5K
4K
3K
2K
7K
Sfc
Protection
07/14
DIRECTIVE
1-4-1-601, p. 43
Appendix 5, p. 1
SPECIAL PROTECTION ZONE MAPS
Special Protection Zone (SPZ) boundaries are shown in maps in this appendix. SPZ rules
are found in OAR 629-048-0135 and 0137.
TISS RtE
BS T195 RIE
)S, THS RIE
724s RIE
1225 RIE
T245 WE
W
215 R2ET I.T21 5 R4E T215 R5E
uh
T225 E 722SRU r22S R4E
2 E
T215 E T�3S Rx T'235 R4E
,R3E
T24B R2t
1245 RX T246 RAE
SWAM 7 —
0r,.-,;kna L)v.rA d U�,.tN
li, F ram! A .1,
r, CRUTCG
JrW.,i knkn and Hk`f-Alwx, Dtpf
U.c., Amw Io7k; cyl Liv4,rv.^r;
WmltodiZ
kl}L+1`ay1S CSN Lawf Marr ige.Y.rl
Wonarer, mm'I
DR A F T Oakridge
pLss T�A-Np.-
0 ,.S
Qr,f ZSJ.� LMp
I
Special Prot&ction Zone
cu"rnt SP7
v gas I I
Protection
07/14
733S KAW T335 RSW T31B P7w
M
T335 WE
140
0227
99;4 M
43s5Riw r
T3 RIE - T305 R2E nos R3
CAM phk� a I kanx
a,sd,
TM RAW 1346 R3w Im kzw
L ouY ckl- wml
n"AfE
IMS FQW
-13#RlW
Medfoid
m -s, --ni ti r--
04'.f
62
Special Protection Zone
'135S R4Wnsa Paw
Me R
i
_7
DIRECTIVE
1-4-1-601, p. 44
Appendix 5, p. 2
T34SRZE t TUB Fu
Pd.W Faft I
T35S R2E
T35S R31
nGS FWW
M
US R,W S�vc.
140
R<. ,Rkw
99;4 M
43s5Riw r
T3 RIE - T305 R2E nos R3
CAM phk� a I kanx
a,sd,
B QIdl-ld
L ouY ckl- wml
99
IMS FQW
9---
Medfoid
m -s, --ni ti r--
04'.f
i's
Special Protection Zone
99
i
t
T37S R4W
t37s psw
M75 R2W
T179 Rl, W
7S RIE T37S M& i T373 nj
Km I R"twmT, 7c4--
0" feR-estly
US R,W S�vc.
Dx,m ce FM and WOM
U5 Am" Ci,fe M 6 -OS' .I
CAM phk� a I kanx
a,sd,
B QIdl-ld
L ouY ckl- wml
ir, &.ftl. d law Har,,Xr f.
Medfoid
m -s, --ni ti r--
04'.f
i's
Special Protection Zone
T385 R4?Oi
1385 R3
T3 s P-Av
TK.S
739S RSL
i US R2t
na R31
239
Lti
95
T 149 R4W
T3> i R3W
T39S KM
'1311,SRIW
73 Rll�-.
7393 RZ
MS R31
1403 R4W74US
T40S R3W
T495 R2W
T405 RlW
RZE273
R:
Km I R"twmT, 7c4--
0" feR-estly
US R,W S�vc.
Dx,m ce FM and WOM
U5 Am" Ci,fe M 6 -OS' .I
CAM phk� a I kanx
a,sd,
N*,d-, rau and Rn,wwo D"
L ouY ckl- wml
ir, &.ftl. d law Har,,Xr f.
Medfoid
m -s, --ni ti r--
04'.f
i's
Special Protection Zone
Protection
07/14
DIRECTIVE
1-4-1-601, p. 45
Appendix 5, p. 3
T325 RepT32S W -St T32S RTE T325 ROE i. ME ROE T325 R98E TUS RliE T328 R12E
T32B RM
MS RIOM T333 Alit T339 RIZE
T33S RS T33 7333 R 7339 Rt T335 ROE
T3Rm T3,!* ROE T34S ROE 734 T345 Ail F TUS RUE
T343 RO 734b
422
355 R8 TRE .1,156
3.'
T3S5 RG
55 '�R7E
I RTE
T34S RHi6, T -JUS ROE T3SS RIC& T36S Rlit T36S RM
1=
r"- f*piof
X. sule Ckvvd) 1.
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r4qy, 1XV4 ul F.I. sari Wj90_-
_X1
(N,,(01 fx;+ii 43ft. L-11
W, 9L-1 MM 14x5f T�.t . fmbE Lb55
mt
(Nwcl� L1149 CA
140
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Ck lk;t
S. *
F�, � .,c VAM, _.
u: D R A F T Klamaffi
1:
Special Protection Zone
T373 Rlt.ffE
n 'S to
T-37SRIIE
117B RUE
T373 R SE
XPE
T3?5 RTE
T
T4
ROE
-7-7-
140
T�
R1
F,385 wit
I3057395
RTE
TMS,RUp_
T3E-8 RDE
RmsE
T38S RICE
T39s RuE
nas R12E
70
r,
73C6 RIIE
TM 812E
SRK
ME R_%
9`393 RSE
7393'R7E
T306 RE
Bs ROE
66
Ti
T4+35 Rf2F
T RUE
485 Rte:
14US RBE
14
T40 I
Mis ROE
740S kliE
Y,tpO RIDE
7495 RIZE
Fu
499 RSE
1`418 ROE
WE RT
TM RSETSi
SRI
TASN RSW
TARN RZW
T48NRIW
T49N WE 148N ME
748N ME T48N R4E
'TAHN RSE
USH ME
1=
r"- f*piof
X. sule Ckvvd) 1.
CM
r4qy, 1XV4 ul F.I. sari Wj90_-
US fklWki 0.4, �+� Lr &�u41 Ir kzr.N's4�
(N,,(01 fx;+ii 43ft. L-11
W, 9L-1 MM 14x5f T�.t . fmbE Lb55
mt
(Nwcl� L1149 CA
'A k1.1 r.,A'_C LaAc.A{f.d
IsN
Ck lk;t
S. *
F�, � .,c VAM, _.
u: D R A F T Klamaffi
Special Protection Zone
Protection
07/14
DIRECTIVE
1-4-1-601, p. 46
Appendix 5, p. 4
=i215 <iLLrziS.]-:lsesv.
�uR'Jr�t]31 tJP.(:t C1 �iT1:P. Lrevjk
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Special Protection Zone
August 13, 2018
To: Patricia Hirami, Acting Deputy Chief, State and Private Forestry
From: Deschutes and Klamath County Board of County Commissioners
Subject: Greater La Pine Basin Joint Chiefs' Project Funding
Recently the Commissioners from Deschutes and Klamath Counties learned that the funding level for year
three of the Greater La Pine Basin Joint Chiefs' was significantly reduced for two key stakeholders, the
Oregon Department of Forestry (ODF) and Walker Range Fire Protection Association (WRFPA). The
reductions in funding are $138,429 for ODF and $235,723 for WRFPA for a total of $374,152.
Another contributing factor is the Natural Resource Conservation Service (NRCS) was not allocated funds for
this project either, thus further reducing the ability to treat private lands within this landscape.
What is significant with this reduction to key stakeholders is the inability to treat private lands around the
inside the community of La Pine. The Deschutes National Forest has been great to work with on this project
and making great strides on Federal lands. If we are to truly implement the National Wildland Fire Cohesive
Strategy in Central OR, having the financial resources for both State and local fire protection agencies will be
a key component to address both landscape resiliency and create fire -adapted communities.
We are certain you are aware of the current wildland fire situation in the western US and we have already
burned in excess of 200,000 just in Central OR thus far with months of the 2018 fire year ahead of us.
We would appreciate your efforts to resolve this issue�and look forward to a resolution of this funding issue.
Sincerely,
Anthony DeBone Derrick DeGroot
Chair, Deschutes County Chair, Klamath County
,flf Military Oregon Department
g Y
..
Office of Emergency Management
3225 State Street, Rm. 115, *,
Salem, OR 97301
Hazard Mitigation Assistance Programs
Letter of Intent
❑ Plan ❑ Previously Submitted Letter of Intent for this Plan/Project?
* Project ❑ If so, when? ❑ Unfunded, when?
Mitigation Program: (PDM and FMA funds are not available at this time)
❑ Pre -disaster Mitigation Grant (PDM) ❑ Flood Mitigation Assistance (FMA)
X Hazard Mitigation Grant Program (HMGP): -595, funding letter dated 7/13/18
Please consult HMA program guidance for details:
httmresources./Grnts Pa es.HMA.aspx
PDM/FMA Applications: apply at eGrants (contact
HMGP Applications: see HMGP Guidelines to
the SHMO to secure a login, if you don't already
apply at j
have one): https:l/portal.fema, ov farnsVuWeb home
http:J/www.orer on govjC7 mresdurces Gr nts/P
ges/HMA.aspx
Statutory Authority for Grants:
HMGP, authorized under Section 404 of the Robert T. Stafford Disaster Relief and Emergency Act of 1988, as
amended (42 USC 5170c and 5187), and 44 CFR Subpart N. CDFA 97.039.
PDM program, authorized under Section 203 of the Stafford Act (42 USC 5133). CDFA 97.047.
FMA program, authorized under Section 1366 of the National Flood Insurance Act of 1968, as amended (42
USC 4101c), and 44 CFR Subpart 78 (for programs which opened before December 3, 2007) and Subpart 79
(for programs which open on or after December 3, 2007). CDFA 97.029
Electronic Code of Federal Regulations:
http;1 www.ecfr.gov (Title 2 and Title 44)
DEADLINE for Letters of Intent Js 1
Applicant Types
❑ State Government [0 Local Government ❑ Tribal Nation
❑ Special District ❑ Public/Tribal College or University ❑ Other
Name/Address of Jurisdiction:
Contact Person: Nathan Garibay _
Deschutes County
County of Jurisdiction: Deschutes
1300 NW Wall St
Department: _ Sheriff's Office — Emergency Services
Send OR 97701
Phone Number: 541-617-3303
Email: nathan.garibay@descfhutes.org
Phone: (503) 378-2911 a Fax: (503) 373-7833 0 24 -Hour Emergency Notification: (503) 378-6377
a __ __.__ _...._..__.. ..._..........__.__ —
._.................... ___._. . ___------...... ...... _........ .... ._
Please attach separate document if needed
1. What is the Hazard(s)? Briefly describe the nature of the problem.
The hazard we are mitigating is wildfire. Weather topography and fuels in Deschutes County combine to present significant fire risk in
areas where wildlands intersect with development (i.e. the Wildland Urban Interface or WUI). Due to extended hot and dry summers
coupled with many natural and human caused ignitions there is a need to mitigate wildfire risk and impacts to resident and firefighter
safety as well as possible impacts to structures and other critical infrastructure,
_...,..___ _ _--_-_._ __ ........ _ ---- -_-..............__.._..___
2. How will plan/project protect life, safety, or property in your jurisdiction?
Increasing the number of home risk assessments in high-risk areas will increase homeowner awareness of specific actions they can take to
improve the survivability of their homes during a wildfire. It will also provide firefighters and fire managers with additional intelligence to
determine appropriate strategy and tactics when fires do threaten development. The NHMP recognizes the need for increased public
awareness of fuels reduction, including fuels reduction in and around structures as an necessary action item to reduce overall risk from
wildfire.
_.__._ ._... .............. _ _... ...._.. .......... ._,...
3. Describe the level of Risk (probabilities or frequency of occurrence) and impacts (severity) of these hazards
upon your jurisdiction.
Deschutes County's Natural Hazards Mitigation plan lists the County's probability of experiencing a wildfire event is high. Each community
wildfire protection plan (7 total) in Deschutes County also finds past fire occurrence (looking at 10 year data) to be high for most sub
geographic areas. Due to the nature of the dry climate coupled with volatile fuels, probability is considered high each year for large fast
moving wildfires with the potential to impact communities in the WUI. The potential impacts of wildfire is also considered high. Deschutes
County has experienced wildfires in past years that have led to multiple structures being lost. More recently wildfires have impacted
communities through evacuations, smoke impacts and road closures. Many wildfires have led to economic and other impacts to the
communities throughout Deschutes County. Many examples of these impacts are described in more detail in the NHMP.
_.................
4. Please provide a short description and estimated cost of your proposed plan/project.
Initiative: Hire seasonal (summer intern) to increase the number of home wildfire risk assessments, capture data in an appropriate format,
and provide information/materials to homeowners to reduce their risk and complete follow-up assessments. Produce tri-fold brochures that
provide risk assessment and risk reduction information. Produce short informational/instructional videos for homeowners.
$37,780 total cost ($28,334 federal share with $9,446 local in-kind match)
5. Is the proposed project identified in your FEMA-Approved Natural Hazard Mitigation Plan (NHMP)? ❑ No 0 Yes
NHMP Page No. A-31 (where in the NHMP is it found)
Is this a multi-jurisdiction plan? ❑ No Z Yes Specify jurisdictions: Deschutes County, Cities of
Bend, Sisters, Redmond and La Pine
FOR PLANNING GRANTS:
6. Will this be a ❑ New Plan ❑ Comprehensive Revision of an existing plan ❑ Multi-Hazard Plan
(Note: If this is plan revision, what is the expiration date of the current plan?
7. Do you have any of the following completed? Select all that apply.
❑ Engineering design help ❑ Benefit cost analysis support (Note: data exists to inform BCA, BCA is not
complete at this time) ❑ Environmental concerns
i,
8. Have you identified the cost share and source? ❑ No Q Yes Source: Deschutes County
Phone: (503) 378-2911 0 Fax: (503) 373-7833' 24 -Hour Emergency Notification: (800) 452-0311
Name of Si ning uthority, itis �'�� �� c. f C a ( c ,^,•� ^ � s`4 �_.`��r
Signature Date
(DEADLINE for Letters of Intent is 08/10/201§)
QUESTIONS? Please contact;
Angie Lane, State Hazard Mitigation Officer (503) 378-4660 angie.lane@state.or.us
.__. ._......... ... _................... .........
AlggLoximate Available Funding er FMAG federal share• 2.5"010 match needed bong sub-appikants
Projects - $498,676
Planning - $ 39,667
Initiative - S 28,334
NOTES:
*SEE NOTES ON THE NEXT PAGE. *
1. This is not the application. Letters
of intent will be reviewed August 13-
15. Those projects selected will be
provided an application on August
14. Applications will then be due by
December 15.
2. Priority will be given to those entities
that already have a current NHMP,
and will remain current through July
13, 2022.
3. If your NHMP will expire before July
13, 2022, you are encouraged to
apply for planning funding to update
your NHMP.
4. Good examples of Initiative Projects
(5%) are risk assessments that will
result in an updated risk and hazard
analysis in an NHMP, warning
systems, and installation of
generators for critical facilities.
5. Priority will be given to those entities
applying for wildfire mitigation
activities in Curry, Deschutes, Hood
River, Multnomah, Klamath, and
Jefferson Counties (the Designated
counties).
6. See https://www.fema.gov/unified-
federal-environmental-and-historic-
orreservation-review-best-practices-
libra for environmental and historic
considerations (EHP).
7. See https://www.fema.gov/benefit-
cost-analysis to download the BCA
tool. Download the latest version if
you intend on doing your own BCA
during application development.
8. Start communicating and
coordinating with other departments
and groups that may be involved in
this proposed project to ensure
special permits, clearances, etc. do
not need procured and that
assurance is given for any match
that may be provided.
Phone: (503) 378-2911 • Fax: (503) 373-7833 0 24 -Hour Emergency Notification: (800) 452-0311
Oregon Military Department
' $ o Office of Emergency Management
ht + i!
" 3 3225 State Street, Rm. 115
\ ` ' Salem, OR 97301
"�, io"aia`2iP
Hazard Mitigation Assistance Programs
Letter of Intent
❑ Plan ❑ Previously Submitted Letter of Intent for this Plan/Project?
Q Project ❑ If so, when? ❑ Unfunded, when?
Mitigation Program: (PDM and FMA funds are not available at this time)
❑ Pre -disaster Mitigation Grant (PDM) ❑ Flood Mitigation Assistance (FMA)
X Hazard Mitigation Grant Program (HMGP): -5195, funding letter dated 7/13/18
Please consult HMA program guidance for details:
http:/lwww,ore_on,gov/OEM / rnresources&rran Pa es HMA.aaspx
PDM/FMA Applications: apply at eGrants (contact
HMGP Applications: see HMGP Guidelines to
the SHMO to secure a login, if you don't already
apply at
have one): https:/ ortai.femawgo_v/famsVuweb home
I t fl ww.orggon.gov/4EM emrPsource-s Grants/Pa
aes/HMA.aspx
Statutory Authority for Grants.
HMGP, authorized under Section 404 of the Robert T, Stafford Disaster Relief and Emergency Act of 1988, as
amended (42 USC 5170c and 5187), and 44 CFR Subpart N. CDFA 97.039.
PDM program, authorized under Section 203 of the Stafford Act (42 USC 5133). CDFA 97.047,
FMA program, authorized under Section 1366 of the National Flood Insurance Act of 1968, as amended (42
USC 4101c), and 44 CFR Subpart 78 (for programs which opened before December 3, 2007) and Subpart 79
(for programs which open on or after December 3, 2007). CDFA 97.029
Electronic Code of Federal Regulations:
httr)://www.ecfr.gov (Title 2 and Title 44)
(DEADLINE for Letters of Intent is Q 1RL2_Q .f
Applicant Type:
❑ State Government Q Local Government ❑ Tribal Nation
❑ Special District ❑ Public/Tribal College or University ❑ Other
Name/Address of Jurisdiction: Contact Person: Ed Keith
Deschutes County County of Jurisdiction: Deschutes
1300 NW Wall Street Department: Natural Resources
Bend OsR_97701 Phone Number: 541-322-7117
Email: ed.keith(a�deschutes,org
Phone: (503) 378-2911 0 Fax: (503) 373-7833 a 24 -Hour Emergency Notification: (503) 378-6377
Please attach separate d
1. What is the Hazard(s)? Briefly describe the nature of the
The hazard we are mitigating is wildfire. Weather topography and fuels i
areas where wildlands intersect with development (i.e. the Wildland Urba
coupled with many natural and human caused ignitions there is a need t(
safety as well as possible impacts to structures and other critical infrastrL
2. How will plan/project protect life, safety, or property in y
By reducing fuels and creation of defensible space around structures anti
while firefighter and resident safety is improved. Scientific studies are cls
more favorable and safer environment for successful fire suppression wh
According to the NHMP the greatest potential to impact fire behavior lies
defensible space around individual homes and structures to well planned
intensity fire.
3. Describe the level of Risk (probabilities or frequency of o
upon your jurisdiction.
Deschutes County's Natural Hazards Mitigation plan lists the County's pr
wildfire protection plan (7 total) in Deschutes County also finds past fire
geographic areas. Due to the nature of the dry climate coupled with voli
I moving wildfires with the potential to impact communities in the WUI. T
County has experienced wildfires in past years that have led to multiple
# communities through evacuations, smoke impacts and road closures. M�
communities throughout Deschutes County. Many examples of these im
4. Please provide a short description and estimated cost of
Projects: Fuels reduction and creation of defensible space in high risk an
cutting and slash treatment. A more detailed scope of work will be ident
700 acres treated at an estimated $950 per acre, total cost of 665,000
5. Is the proposed project identified in your FEMA-Approve(
NHMP Page No. _A-35 (where in the NHMP is it fol
Is this a multi-jurisdiction plan? ❑ No Q Yes
Bend, Sisters, Redmond and La Pine
FOR PLANNING GRANTS:
6. Will this be a ❑ New Plan ❑ Comprehensive Revision
(Note: If this is plan revision, what is the expiration date of the current plan?
7. Do you have any of the following completed? Select all
❑ Engineering design help 2 Benefit cost analysi!
complete at this time) Q Environmental concerns
S. Have you identified the cost share and source? ❑ No
County
-- ................... ._._� —I,.-,.,.,
Phone: (503) 378-2911 9 Fax: (503) 373-7833 0 24 -Hour Emergency Notification: (800) 452-0311
Name of Si,9ning Authority,
Sig ature Date
(DEADLINE for Letters of Intent is08/10/2018
QUESTIONS? Please contact:
Angie Lane, State Hazard Mitigation Officer (503) 378-4660 angie.lane2state.or.us
Projects - .$498,676
Planning - $ 39,667
Initiative - .$ 28,334 *SEE NOTES ON THE NEXT PAGE
NOTES:
1. This is not the application. Letters
of intent will be reviewed August 13-
15. Those projects selected will be
provided an application on August
14. Applications will then be due by
December 15.
2. Priority will be given to those entities
that already have a current NHMP,
and will remain current through July
13, 2022.
3. If your NHMP will expire before July
13, 2022, you are encouraged to
apply for planning funding to update
your NHMP.
4. Good examples of Initiative Projects
(5%) are risk assessments that will
result in an updated risk and hazard
analysis in an NHMP, warning
systems, and installation of
generators for critical facilities.
5. Priority will be given to those entities
applying for wildfire mitigation
activities in Curry, Deschutes, Hood
River, Multnomah, Klamath, and
Jefferson Counties (the Designated
counties).
6. See https://www.fema.gov/unified-
federal-environrriental-and-historic-
rp esprvation-review-best-practices
IbLga for environmental and historic
considerations (EHP).
7. See https://www.fema.gov/benefit-
cost-analysis to download the BCA
tool. Download the latest version if
you intend on doing your own BCA
during application development.
8. Start communicating and
coordinating with other departments
and groups that may be involved in
this proposed project to ensure
special permits, clearances, etc, do
not need procured and that
assurance is given for any match
that may be provided.
Phone: (503) 378-2911 0 Fax: (503) 373-7833 0 24 -Hour Emergency Notification: (800) 452-0311
1
Oregon Military Department
��. Office of Emergency Management
"W� ;x 3225 State Street, Rm. 115 .
Salem, OR 97301
Hazard Mitigation Assistance Programs
Letter of Intent
CEJ Plan ❑ Previously Submitted Letter of Intent for this Plan/Project?
❑ Project ❑ If so, when? ❑ Unfunded, when?
Mitigation Program: (PDM and FMA funds are not available at this time)
❑ Pre-disaster Mitigation Grant (PDM) ❑ Flood Mitigation Assistance (FMA)
X Hazard Mitigation Grant Program (HMGP): FM-5195, funding letter dated 7/13/18
Please consult HMA program guidance for details:
http://www.greg.go.,99,YIQEMlemrosources GraD_WPages HMA.aspx
PDM/FMA Applications: apply at eGrants (contact HMGP Applications: see HMGP Guidelines to
the SHMO to secure a login, if you don't already apply at
have one): Int s jJ_portal.fenia.gov/famsVuWeb/homq httr)://www.oregon.,gov/OEM/emresources/Grants/Pa
ges/HMA.aspx
Statutory Authority for Grants:
HMGP, authorized under Section 404 of the Robert T. Stafford Disaster Relief and Emergency Act of 1988, as
amended (42 USC 5170c and 5187), and 44 CFR Subpart N. CDFA 97.039.
PDM program, authorized under Section 203 of the Stafford Act (42 USC 5133). CDFA 97.047.
FMA program, authorized under Section 1366 of the National Flood Insurance Act of 1968, as amended (42
USC 4101c), and 44 CFR Subpart 78 (for programs which opened before December 3, 2007) and Subpart 79
(for programs which open on or after December 3, 2007). CDFA 97.029
Electronic Code of Federal Regulations:
hup.,11www,ecfr..gov (Title 2 and Ttle 44)
DEADLINE for Letters of Intent is 08
�_._.
Applicant Type: ..
❑ State Government is Local Government ❑ Tribal Nation
❑ Special District ❑ Public/Tribal College or University ❑ Other
Name/Address of Jurisdiction: Contact Person: Nathan Garibay
_Deschutes County County of Jurisdiction: Deschutes
1300 NW Wall St Department: Sheriff's Office — Emergency Services
Bend OR 97701 Phone Number: 541-617-3303
Email: nathan.garibay(adeschutes.org_
Phone: (503) 378-2911 0 Fax: (503) 373-7833 0 24-Hour Emergency Notification: (503) 378-6377
_�_ .__ —__ �.._.........._ _....._._._......._..--............... ....... _... _.,............. .................... ............................. ...... ......... ...-..... ...........................................
_�
i
I Please attach separate document if needed
I
f
1. What is the Hazard(s)? Briefly describe the nature of the problem.
This project is to update our existing Natural Hazards Mitigation Plan, which addresses all likely natural hazards posing a threat to
Deschutes County.
2. How will plan/project protect life, safety, or property in your jurisdiction?
The process and development of an updated Natural Hazards Mitigation Plan not only ensures Deschutes County is compliant, but also
ensures that we have an up to date assessment of risk and current strategies identified to reduce impacts of natural disasters in Deschutes
County.
3. Describe the level of Risk (probabilities or frequency of occurrence) and impacts (severity) of these hazards
upon your jurisdiction.
Planning: Deschutes County's current Natural Hazards Mitigation Plan lists the following natural hazards (ranked highest to lowest): winter
storm, wildfire, Cascadia SZ earthquake, windstorm, volcano, drought, flood, crustal earthquake, and landslide, Winter storm and wildfire
are assessed as having both high probability and high vulnerability.
_ ............
4. Please provide a short description and estimated cost of your proposed plan/project.
Engage with contracted services to assist in the update our the Deschutes County Multi-3urisdictional Natural Hazards Mitigation Plan -
$52,890 total cost ($39,667 federal share with $13,223 local in-kind match).
5. Is the proposed project identified in your FEMA -Approved Natural Hazard Mitigation Plan (NHMP)? ❑ No 0 Yes
NHMP Page No. (where in the NHMP is it found)
Is this a multi -jurisdiction plan? ❑ No 0 Yes Specify jurisdictions: Deschutes County, Cities of
Bend, Sisters, Redmond and La Pine
FOR PLANNING GRANTS:
6. Will this be a ❑ New Plan 0 Comprehensive Revision of an existing plan ❑ Multi -Hazard Plan
(Note: If this is plan revision, what is the expiration date of the current plan? QZJ Q(2QQ_„__ , )
.... n
...... .-...... m
7. Do you have any of the following completed? Select all that apply.
❑ Engineering design help ❑ Benefit cost analysis support (Note: data exists to inform BCA, BCA is not
complete at this time) ❑ Environmental concerns
8. Have you identified the cost share and source? ❑ No 0 Yes Source: Deschutes County, Cities of
Bend, Sisters, Redmond, and La Pine
Phone: (503) 378-2911 0 Fax: (503) 373-7833 0 24 -Hour Emergency Notification: (800) 452-0311
�yLCir"=�
Name of S" Hing A thorny itle ,"tea � �
_. -
Signature Date
DEADLINE for Letters of Intent is 08/10/2018
QUESTIONS? Please contact:
Angie Lane, State Hazard Mitigation Officer (503) 378-4660 angie.lane state.or.us
AgpLoximate A vaifa bfe Funding per FfE9AG ffederal share 2.5°/a match needed from �nta�a Oicants
Projects - $498,676
Planning - $ 39,667
Initiative - $ 23,334 _*SEE NOTES ON THE NEXT PAGE.
NOTES:
1. This is not the application. Letters
of intent will be reviewed August 13-
15. Those projects selected will be
provided an application on August
14. Applications will then be due by
December 15.
2. Priority will be given to those entities
that already have a current NHMP,
and will remain current through July
13, 2022.
3. If your NHMP will expire before July
13, 2022, you are encouraged to
apply for planning funding to update
your NHMP.
4. Good examples of Initiative Projects
(5%) are risk assessments that will
result in an updated risk and hazard
analysis in an NHMP, warning
systems, and installation of
generators for critical facilities.
5. Priority will be given to those entities
applying for wildfire mitigation
activities in Curry, Deschutes, Hood
River, Multnomah, Klamath, and
Jefferson Counties (the Designated
counties).
6. See https://www.fema.gov/unified-
federal-environmental-and-historic-
preservat�on review-best-practices-
libra for environmental and historic
considerations (EHP).
7. See https://www.fema.gov/benefit-
cost-analysis to download the BCA
tool. Download the latest version if
you intend on doing your own BCA
during application development.
8. Start communicating and
coordinating with other departments
and groups that may be involved in
this proposed project to ensure
special permits, clearances, etc. do
not need procured and that
assurance is given for any match
that may be provided.
Phone: (503) 378-2911 0 Fax: (503) 373-7833 9 24 -Hour Emergency Notification: (800) 452-0311
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 August 15, 2018
DATE: August 7, 2018
FROM: Troy Gotchy, Sheriff's Office,
TITLE OF AGENDA ITEM:
Consideration of Justice Assistance Grant (JAG) Application
RECOMMENDATION & ACTION REQUESTED:
Authorize application for JAG funding to purchase new AEDs for patrol vehicles.
ATTENDANCE: Sergeant Michael Sundberg, Jennifer Hill
SUMMARY: The Sheriff's Office is requesting approval to apply for $12,413.00 in grant
funding to purchase new AEDs for patrol vehicles.
-VE
To: Deschutes County Board of Commissioners
From: Sergeant Mike Sundberg, Deschutes County Sheriff's Office
Date: August 7, 2018
Subject: Proposed Grant Application for the Deschutes County Sheriff's Office
Proposed Grant Application for the Deschutes County Sheriff s Office
The Deschutes County Sheriff's Office is requesting Board of County Commissioner approval to
submit a grant application on behalf of the County. A summary of the grant opportunity follows:
Funding Agency: Bureau of Justice Assistance Edward Byrne Memorial Justice Assistance
Grant (JAG) Program
Program: Deschutes County Sheriff's Office AED Replacement
Funding from the 2018 Justice Assistance Grant (JAG) program will be used to purchase nine (9)
new Automated External Defibrillators (AEDs) for the Patrol Division of the Sheriff's Office.
The existing AEDs in patrol vehicles were purchased in 2008 and are approaching their end of
life. The existing AEDs are also subject to recalls for malfunctioning diodes that prevent self -
testing.
Deputies need to be provided with the tools and resources that are essential for public safety.
Patrol deputies are often first to arrive on the scene of an emergency and having AEDs available
increase the chances of saving a life. AEDs in patrol vehicles provide a significant safety net for
citizens that are suffering from cardiac arrest. This funding opportunity will ensure that deputies
have functioning AEDs in their patrol vehicles.
Due Date: The application must be submitted by August 22, 2018.
Amount: $12,413.00
Matching Funds: None
Page 1 of 2
0
Duration: Two years: October 1, 2017 through September 30, 2019 (The Justice
Assistance Grant program follows a federal budget schedule)
Background: The JAG Program provides states and units of local governments with
critical funding necessary to support a range of programs, including law
enforcement equipment purchases and training. The County has received
funding from the JAG Program on an annual basis since 2006.
Reporting: The Deschutes County Sheriff's Office will be responsible for submitting
quarterly financial and narrative reports. Once the purchases have been
made, a final report will be submitted to close the grant.
Please contact Sergeant Michael Sundberg or Jennifer Hill at 541-388-6655 if you have
questions concerning this application.
Commissioner/County Administrator Approval:
Date:
Document No. 2018-565
Page 2 of 2
PROJECT ABSTRACT
Application No. 2018 -H3121 -OR -DJ
Deschutes County Sheriffs Office AED Replacement
Name: Deschutes County Sheriff's Office
Title: Deschutes County Sheriff's Office (DCSO) AED Replacement
Problem: Most DCSO patrol deputies carry portable Automatic External Defibrillators
(AEDs) in their patrol vehicles. Many of the AEDs, which were purchased in
2008, are currently subject to a recall due to a failing diode within the machines.
The faulty diode prevents self -testing, which can lead to a complete system failure
when use is critical to patient survival. These AEDs are outdated, inadequate, and
unreliable in the field.
Goals: DCSO will use this funding opportunity to ensure that deputies have functioning
portable AEDs in their patrol vehicles. Awarded funds to purchase new AEDs
will strengthen the chance of citizen survival for victims of sudden cardiac arrest
and allow for quick response to a medical emergency requiring defibrillation.
Strategies: DCSO will purchase new, portable AEDs to replace the outdated, unreliable
machines that are currently in the patrol vehicles.
Deliverables: Nine (9) Powerheart G5 Automatic AEDs with voice prompts, system alerts, and
built-in automatic synchronization features.
No Pending Applications: DCSO has no pending applications for federally funded assistance to
support this project or the items outlined in the budget narrative. In addition, DCSO is not
designated high risk by any federal grant making agency.
Fiscal Year 2018 JAG Project Identifiers
The top five project identifiers that are associated with proposed project activities:
1. Equipment - General 4. Public Engagement
2. Training and Technical Assistance 5. Vehicles -Other
3. Standards
Page 1 of 1 Project Abstract, Application No. 2018 -H3121 -OR -DJ
PROGRAM NARRATIVE
Application No. 2018 -H3121 -OR -DJ
Deschutes County Sheriff s Office AED Replacement
The Deschutes County Sheriff's Office (DCSO) will use funds awarded by the 2018 JAG
program to purchase law enforcement equipment. DCSO will be allocated $12,413.00 to
purchase nine (9) new portable Automatic External Defibrillators (AEDs) for the Patrol Division.
This equipment is necessary because patrol deputies are often first on -scene during cardiac
emergencies, and can quickly deploy a portable AED to provide effective intervention for
cardiac arrest until Emergency Medical Service teams arrive. With continued budgetary
restraints, this funding allows for this critical equipment to be upgraded, replaced and purchased
to enhance the likelihood of survival for Deschutes County citizens or patrol deputies
experiencing a cardiac event.
Deschutes County Sheriffs Office AED Replacement
As a recipient, DCSO will use the funding from 2018 Justice Assistance Grant program to
purchase nine (9) new Powerheart G5 Automatic portable AEDs for the Patrol Division of the
Sheriff s Office. The portable AEDs will be placed in vehicles that patrol rural and urban areas
of Deschutes County. While DCSO currently has AEDs in many of their vehicles, they were
purchased in 2008 and are currently subject to a recall resulting from a failing diode within the
machine. The faulty diode prevents self -testing, which can lead to a complete system failure
when use is critical to saving the life of a victim of sudden cardiac arrest.
Cardiac arrest occurs when the heart's electrical system results in the heart quivering erratically,
known as ventricular fibrillation, preventing the pumping of blood through the body and brain.
Death occurs within minutes unless normal rhythm of the heart is restored. When a medical call
is dispatched, DCSO deputies are often the first on scene when a citizen is experiencing a sudden
cardiac arrest emergency. Deputies must act quickly, because the only effective treatment for
sudden cardiac arrest is an immediate shock from a portable AED. Cardiac arrest kills more than
369,000 annually in the United States.
AEDs also protect deputies and staff members in law enforcement. Data indicates that law
enforcement personnel are among the highest -risk of professionals susceptible to sudden cardiac
arrest due to high stress levels and workload. Deputies are prone to sudden cardiac arrest while
pursuing or restraining suspects, so having portable AEDs readily available in patrol vehicles is
imperative.
The Sheriff's Office has an established, written policy regarding the deployment and
maintenance of AED machines. Deputies shall make attempts and respond to all reported
incidents of cardiac arrest unless it is clear that Emergency Medical Services will arrive ahead of
the deputy. Deputies must be trained in AED use and demonstrate proficiency prior to deploying
a portable AED machine in the field.
Page 1 of 2 Program Narrative, Application No. 2018 -H3121 -OR -DJ
2018 JAG Reporting
All financial reports, written reports and close-out reports will be the responsibility of the
Deschutes County Sheriff's Office. Additional financial needs, replacements or maintenance on
any of the listed equipment will be the responsibility of the Sheriff's Office. Performance
measurements for the purchase and use of the equipment will be entered by the JAG program
manager on a scheduled basis through the Bureau of Justice Assistance Performance
Measurement Tools website.
Page 2 of 2 Program Narrative, Application No. 2018 -H3121 -OR -DJ
BUDGET NARRATIVE
Application No. 2018 -H3121 -OR -DJ
Deschutes County Sheriffs Office AED Replacement
Deschutes County Sheriffs Office AED Replacement
To enable Deschutes County Sheriff's Office patrol deputies to replace recalled and
outdated portable Automatic External Defibrillators (AEDs) for patrol vehicles, funding
from the 2018 Justice Assistance Grant program will be used to purchase nine new (9)
Powerheart G5 AEDs. The Sheriff's Office will pay equipment shipping and handling fees
for delivery to the Office.
Powerheart G5 Automatic Patrol Division - $12,413.00
The Sheriff's Office will purchase nine (9) Powerheart G5 AEDs manufactured by Cardiac
Science Corporation. All portable AEDs will feature "Intellisense" battery packs with 4 -
year warranties, user guides, carrying cases, USB Data Cables, AED Manager Software,
premium AED/CPR responder packs, "AED Equipped" window/wall decals, and AED
check tags.
Powerheart G5 portable automatic AEDs are durable, and easy to use with clear voice
prompts and backlit texts screens to guide deputies through the entire rescue. These AEDs
also feature automatic self -checks that are not subject to the same recall as DCSO's current
AEDs.
None of the aforementioned AEDs in this narrative are in the Deschutes County Sheriff's
Office budget, but are necessary to complete the AED Replacement Program. The purchase
as defined above will be made one a one-time basis. Equipment purchase funded by this
Grant opportunity will be completed by the end of the grant period, September 30, 2019.
JAG Program Area
All equipment purchased by the Deschutes County Sheriff's Office with awarded JAG funds
will be used for law enforcement purposes.
Page 1 of 1, Budget Narrative, Application No. 2018 -H3121 -OR -DJ
BUDGET DETAIL WORKSHEET
Application No. 2018 -H3121 -OR -DJ
Deschutes County Sheriffs Office AED Replacement
Deschutes County Sheriffs Office AED Replacement
Description
Qty
I Cost per Unit
Total
1. Powerheart G5 AED Automatic
9
$1,424.00
$12,816.00
Total Project Cost
$12,816.00
Total Grant Amount Requested
$12,413.00
Page 1 of 1, Budget Detail Worksheet, Application No. 2018 -H3121 -OR -DJ
REVIEW NARRATIVE
Application No. 2018 -H3121 -OR -DJ
Deschutes County Sheriffs Office AED Replacement
The Deschutes County Sheriff's Office notified and requested approval to submit the
grant application from the Deschutes County Board of Commissioners on July 26, 2018.
The Fiscal Year 2018 Justice Assistance Grant summary was made available for review
to the Deschutes County Board of Commissioners on August 7, 2018 and at the
Commissioners' Work Session on August 15, 2018. The agenda for the Commissioners'
meeting was published on the Deschutes County website on August 8, 2018, with an
opportunity for public comment during the August 15, 2018 Work Session.
The Deschutes County Sheriff's Office posted a public notice on the Sheriff's Office web
site from August 7, 2018 through August 22, 2018.
Page 1 of 1, Review Narrative, Application No. 2018 -H3121 -OR -DJ
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 August 15, 2018
DATE: August 8, 2018
FROM: Judith Ure, Administrative Services, 541-330-4627
TITLE OF AGENDA ITEM:
2019 Q1 Discretionary Grant Follow -Up
RECOMMENDATION & ACTION REQUESTED:
Review follow-up information concerning discretionary grant applications submitted for
the first quarter of 2019 and previously reviewed at the July 23, 2018 work session and
determine awards.
ATTENDANCE: Judith Ure, Management Analyst
SUMMARY: During a review of discretionary grant applications submitted for the first quarter
of 2019, the Board of Commissioners requested budget documentation for the Network of
Volunteer Coordinators request and supplemental documentation for the Deschutes Soil &
Water Conservation District and REACH Redmond requests. The three applications are
attached and staff will provide additional information during the meeting.
Deschutes County
Board of County Commissioners
Discretionary Grant Program
Board Meeting Date: August 23, 2018
Organization: Network of Volunteer Administrators
Project Name: Volunteer Management 101 & 201 Training
Project Period: August 17, 2018
Description: Bring trainers from Portland to present on best practices in volunteer management
for local agencies and organizations using volunteers in support of their mission.
Amount of Request: $1,500
Previous Grants:
3/2/2006
$ 1,000.00
2006 Volunteer of the Year Event
2/26/2007
$ 2,000.00
2007 Volunteer of the Year Event
3/12/2008
2/17/2009
$ 2,000.00
$ 500.00
2008 Volunteer of the Year Event
2009 Volunteer of the Year Event
2/8/2010
$ 1,500.00
2010 Volunteer of the Year Event
1/19/2011
1/30/2012
$ 1,000.00
$ 1,500.00
2011 Volunteer of the Year Event
2012 Volunteer of the Year Event
3/25/2013
$ 1,500.00
2013 Volunteer of the Year Event
1/29/2014
$ 1,500.00
2014 Volunteer of the Year Event
Approved:
Declined:
Deschutes County Board of Commissioners
PO Box 6005, Bend, OR 97701-6005
1300 NW Wall Street, Suite 200, Bend, OR
Telephone: 541-388-6571 Fax: 541-385-3202
Website: Nvww.deschutes.grg
DESCHUTES COUNTY
DISCRETIONARY GRANT PROGRAM APPLICATION
Today's Date: 6/6/2018 Project Name: Volunteer Management 101 & 201 Training
Project Beginning Date: August 17, 2018 1 Project End Date: August 17, 2018
Amount Requested: $1500.00 – Date Funds Needed: August 1, 2018
Name of Applicant Organization: Network of Volunteer Administrators
Address: PO Box 1963
City & Zip Code: Bend, Oregon 97709 Tax 11D #' 38-4010655
Contact Name(s): Judy England Telephone #: 541-312-1039—�
Fax #: 541-389-2982 1 Email Address: judye@deschuteslibrary.org
On a separate sheet(s), please briefly answer the following questions:
1. Describe the applicant organization, including its purpose, leadership structure, and
activities.
2. Describe the proposed project or activity.
3. Provide a timeline for completing the proposed project or activity.
4. Explain how the proposed project or activity will positively impact the community.
5. Identify the specific communities or groups that will benefit.
6. Describe how grant funds will be used and include the source and amounts of matching
funds or in-kind contributions, if any. Itemize anticipated expenditures*.
7. If the grant will support an ongoing activity, explain how it will be funded in the future.
Attach:
Proof of the applicant organization's non-profit status.
* Applicant may be contacted during the review process and asked to provide a complete line item budget.
1. Network of Volunteer Administrators is a not-for-profit networking group
focused on professional development for volunteer administrators and non-profit
staff working with volunteers. The organization has an elected President and a
leadership team. The group meets regularly for networking and training on
volunteer management topics. There are currently forty-one member organizations
and meetings and trainings are open to all members and guests. We work closely
with Better Together and Volunteer Central Oregon to promote education and peer
support opportunities.
2. There are not often professional training sessions for volunteer management in
Central Oregon. This opportunity would bring trainers from Portland to present on
best practices in volunteer management making the opportunity more accessible
for local agencies and organizations using volunteers in support of their mission.
The training will be presented by Melia Hadidian, CVA, and Annette Shaff-
Palmer, MSW, CVA, from Northwest Oregon Volunteer Administrators
Association in Portland, OR. This worthwhile training will introduce attendees to a
range of core topics, from basic volunteer recruitment, recognition, and retention;
to organizational culture and intercultural competence; to motivational leadership
and inspiring leadership among volunteers.
A flyer for the training is attached.
3. The training is to be held on August 17, 2018.
4. The training will provide those engaged in working with volunteers with the
tools to better support their organizations and their volunteers. Many NOVA
member agencies are small non -profits that may not have the resources to support
attending training out of the area or even locally. It is our hope to minimize
financial barriers for attending.
5. NOVA members agencies serve a broad range of interests and needs in the
Central Oregon community. Providing volunteer managers with information on
best practices will support these agencies and the people they serve.
6. Grant funds will help offset the cost of bringing the training to Central Oregon.
Better Together will provide a portion of the funding and Deschutes Children's
Foundation is providing space for the training. Attendees will pay a fee for the
training. Additional sponsors to support costs are being considered.
7. This is a one -day training.
2018 NOVA Workshop - Volunteer Management 101 & 102
Expenses
Income
Speakers presentation fee
1750
Travel expenses - hotel + mileage
600
Room fee @ Children's Foundation
30
Lunch & break expense for attendees
360
2740
Better Together Sponsorship 500
Target Registration 1550
20 @ $45
10 65
2050
Presented by:
Melia Hadidian, CVA
Annette Shaff-Palmer, MSW, CVA
••'••..,,..••'. Northwest Oregon Volunteer Administrators
Association (NOVAA)
[ Friday, August 17th 1 9:00 AM - 4:00 PM ]
Eastside Campus I Deschutes Children's Foundation
www.volunteercentraloregon.org
Network UWAMEM
of Volunteer
t.eer Central Oregon
'Ad m l ri i,S t, rotors. ” Better Together
Deschutes County
Board of County Commissioners
Discretionary Grant Program
Board Meeting Date: August 23, 2018
Organization: Deschutes Soil and Water Conservation District
Project Name: Weed Projects 2018-19
Project Period: January 2018 through June 2019
Description: Assist Deschutes County with weed control along canals.
Amount of Request: $2,500
Previous Grants: None Recorded
Approved:
Declined:
Deschutes County Board of Commissioners
PO Box 6005, Bend, OR 97701-6005
1300 NW Wall Street, Suite 200, Bend, OR
Telephone: 541-388-6571 Fax: 541-385-3202
Website: wavw.deschutes.ortt
DESCHUTES COUNTY
DISCRETIONARY GRANT PROGRAM APPLICATION
Today's Date: 5-28-2018 Project Name: Weed Projects 2018-2019
Project Beginning Date: I January 2018 Project End Date: June 2019
Amount Requested: $2,500.00�� Date Funds Needed: ASAP^�
Name of Applicant Organization: Deschutes Soil and Water Conservation District
Address: 625 SE Salmon Ave
City & Zip Code: Redmond, OR 97756 Tax ID #: E
Contact Name(s): Tammy Harty Telephone #: 541-815-0203
Fax #: �^ Email Address: ManagerDSWCD@Outlook.com
On a separate sheet(s), please briefly answer the following questions:
1. Describe the applicant organization, including its purpose, leadership structure, and
activities.
2. Describe the proposed project or activity.
3. Provide a timeline for completing the proposed project or activity.
4. Explain how the proposed project or activity will positively impact the community.
5. Identify the specific communities or groups that will benefit.
6. Describe how grant funds will be used and include the source and amounts of matching
funds or in-kind contributions, if any. Itemize anticipated expenditures*.
7. If the grant will support an ongoing activity, explain how it will be funded in the future.
Attach:
Proof of the applicant organization's non-profit status.
The DSWCD is a Special District and operates as a non-profit organization within Deschutes County. The funding for the
District is strictly grant funding.
* Applicant may be contacted during the review process and asked to provide a complete line item budget.
1. Describe the applicant organization, including its purpose, leadership structure, and
activities.
The Deschutes Soil and Water Conservation District is a non -regulatory and non-profit agency
that assists landowners in providing leadership, education, motivation and assistance to the
citizens of Deschutes County for responsible, efficient stewardship of our soil and water
resources. The SWCD is managed by a board of 7 directors representing various areas of the
County. We also assist landowners in receiving grant funding through Oregon Watershed
Enhancement Board and other grant funding sources to implement projects that will benefit soil
and water, habitat and water quality.
2. Describe the proposed project or activity.
We have been working cooperatively with Deschutes County through Ed Keith and the Weed
board. We want to continue these coordinated efforts but our current Oregon Department of
Agriculture grant funding does not include funding for weed issues, weed projects or grant
writing for weed projects.
We have been asked by Ed Keith to assist with weed control in irrigation districts and work with
the irrigation districts and landowners for weed control along the canals. That is currently an area
that the County's noxious weed financial assistance program does not cover. We would not be
duplicating efforts but it would be complimentary to what the County is already doing. We have
the ability to write grants for work in those areas but do not have funding to cover the staff time
to write the grants. Over the last 3 years, we used the County's previously provided discretionary
grant funding to write 5 grants that generated almost $50,000 in funding for weed projects within
irrigation districts. Those projects were just a start on the weed problem.
OWEB grant applications can only be presented by either the Soil and Water Districts or the
Watershed Councils. The Watershed Council deals with riparian areas and non-agricultural
interests and the Deschutes SWCD deals with agricultural landowners and irrigation districts to
write OWEB grant proposals. So, any weed grant requests to OWEB need to come through the
Deschutes SWCD,
The DSWCD has an opportunity to write additional weed project grants through the Oregon
Watershed Enhancement Board. However, the current grant funding that we have does not allow
us to actually deal with weed issues nor write those weed project grants. This funding would
allow staff time to visit with landowners and irrigation districts as well as contractors to write
and submit these weed grant proposals and applications. Once these grants are funded, the grant
funds cover the District time to manage and administer these grants. Each grant will generate up
to $15,000 in funding to remove weeds and replant with native vegetation.
3. Provide a timeline for completing the proposed project or activity.
These projects would start upon receipt of funding.
4. Explain how the proposed project or activity will positively impact the community.
The funding will allow the DSWCD to access grant monies from other sources (OWEB and
others) to treat noxious weed issues that are not currently being dealt with in the County. The
DSWCD and the County staff will work cooperatively and refer landowners to each other as
needed. This funding will allow DSWCD staff to write grants that will bring additional money
to fund weed projects that are not currently funded by the County programs.
In addition, once the weeds are removed and the irrigation roads banks are re -planted with native
vegetation, the spreading of weed seeds is stopped in those areas as well as stopping the spread
of weed seed in the canal system. Weed seeds are heavily transported on roadways and in the
canal system. If these weeds are removed, they will not spread seed. That is an important
element of eliminating the spread of not only noxious weeds, but other invasive plants to
adjacent properties and properties on the canal system.
5. Identify the specific communities or groups that will benefit.
Landowners in Deschutes County with weed issues and irrigation districts and the underlying
landowners along the irrigation canal roads network.
6. Describe how grant funds will be used and include the source and amounts of matching
funds or in-kind contributions, if any. Itemize anticipated expenditures*.
Staff time to write and submit OWEB grants and other grant finding opportunities that involve
weed projects as well as talk about weed issues at pasture workshops and other interactions with
landowners and/or irrigation districts and assistance to Deschutes County staff with weed
outreach.
TOTAL Grant money requested is $2,500.00
7. If the grant will support an ongoing activity, explain how it will be funded in the future.
The problem of noxious, non-native weeds proliferating in Central Oregon is severe. Noxious
weeds overrun native vegetation, destroy natural animal habitat, shelter undesirable insects, steal
scarce water, infest crops and cost local communities in terms of visual blight, a reduction of
property values and lost agricultural dollars. Some noxious weeds are poisonous to humans,
livestock and wildlife. Seeds from noxious weeds are spread by foot and vehicular traffic along
our roadways and through our public lands. Many property owners unknowingly have these
non-native, noxious weeds growing in their yards and fields, which aggravates the situation. The
DSWCD can assist in educating landowners and helping irrigation districts to deal with weeds
along their canals and canal roads. We will continue to look for funding to cover these types of
projects.
Currently, there is no other source of funding for staff to do weed outreach, work with
landowners on weed issues and grant writing for weed issues/projects. The grant funding we
receive for technical assistance from the Oregon Department of Agriculture specifically
EXCLUDES working with weed issues and projects.
Thanks for your consideration.
Deschutes County
Board of County Commissioners
Discretionary Grant Program
Pu.tYc calking
Board Meeting Date: August 15, 2018
Organization: REACH Redmond
Project Name: REACH Social Entrprise
Project Period: August 1, 2018 - Ongoing
Description: Purchase rights to operate a Stretch -n -Grow fitness curriculum which would be
offered for a fee, generating revenue on an Ongoing basis.
Amount of Request: $5,000
Previous Grants:
12/27/2016 $- 3,000-00 Annual Holiday Conation Camoaian
Approved:
Declined:
C3
hates C'nuniy Board of Commissioners
0 ; < 110 Box 6005, Hemi, OR 97701-6005
1.300 NW Walt Stmet, Suite 200, Bon(l, OR
Tulephono: 541-388-6571 F"m 541-385-3202
Website: tCl4't1'.'L)c°t 171.11C3,ti1'�
DESCH UTES COUNTY
DISCRETIONARY GRANT PROGRAM APPLICATION
Today's 1)1te:. Project Name:
Project Beginning Date: Project End Dated
!Amount Requested: Tate Funds Needed:
Name of Applicant Organization:' •�"�J C.;'/`% %� �'�,�77'tY� Ljr 1 �/ (,
Address: �,, I ,Bz), ', a -v.-}
City & Zip Cade f d3l'1 or)l".,'g' Tax zn
1
Contact Name(s): L } 't, > Telephone #: zt a -
:.wry i L._ I t p "f. I
Fax #: Email Address: E-11
4
On a separate sheets), please briefly answer the following questions:
1. Describe the applicant organization, including its purpose, leadership structure, and
activities.
2. Describe the proposed project or activity.
3. Provide a timeline for completing the proposed project or activity,
4. Explain how the proposed project or activity will positively impact the community.
5. Identify the specific communities or groups that will benefit.
G. Describe how Grant funds will be used and include the source and amounts of matching
funds or in-kind contributions, ifany. Itemize anticipated expenditures*.
7. If the grant will support an ongoing activity, cxplain how it will be funded in the future,
Attach:
Proof of the applicant organization's non-profit status.
* Applicant may be contacted daring the review process mid oskd lu larovide a compiele. line item budget.
R ,pe,aue•Acts�tity•ta,Mcia,�Shb � v `
WHO WE ARE:
July 26, 2017
The REACH, (Redmond Experience Activity Connection Hub) mission is creating connections for youth to thrive in
our community through meaningful fun real-world experiences.
REACH provides:
0 A safe place for kids when schools are closed
b Fun activities
Individualized real-life learning opportunities
• Healthy relationships and mentoring
o Reassurance and support for parents and the community
• A place for youth to prepare to become future leaders
REACH serves nearly 400 youth annually. 98% of REACH families are employed, yet 75% still fall in the Low
to Moderate Income (LMI) households as defined by Housing and Urban Development for Deschutes County
(HUD). We serve youth from every school in the Redmond district (including Terrebonne) and our main site is
located in the only LMI neighborhood in Redmond identified by HUD.
REACH has 17 employees, 7 full time and 10 part time. REACH has a small, yet dedicated Board of Directors
who represent the best of Deschutes County. In 2016, REACH re -organized and moved away from the
connection with the national organization of Boys & Girls Clubs of America (BGCA) in order to focus on the
unique needs of the Redmond area community and to develop a sustainable fundraising strategy that is diverse,
mission driven and especially with input from the community.
OUR GOAL:
REACH is making strategic decisions to ultimately become a self-sustaining non-profit. One of the funding
strategies REACH hopes to utilize (which was frowned upon by Boys & Girls Clubs of America) is called "Social
Enterprise" which is operating small, profitable businesses that adhere to the core mission of REACH and aid in
funding the day to day operations.
We are asking for the funds to be able to purchase the rights to operate an international, well-established
franchise "Stretch -n -Grow." The Stretch -n -Grow curriculum teaches health, fitness and wellness to youth,
focusing on age 18 months — 6 years. Teaching these 30 minute classes on site inside local preschools and
daycares allows REACH to accomplish several goals:
1) Offering Full Time opportunities to staff who currently work a split shift
a. REACH operates from 6:30am-9am when youth are transported to school and then after school
from 2-6:30pm. Even with planning/prep time, it can be challenging to offer Full Time
opportunities and in today's economic climate of low unemployment and minimum wage
increasing dramatically, REACH needs to find alternatives to part time and split shifts in order to
retain the educated, qualified and dedicated professionals currently employed at REACH.
b. Stretch -n -Grow optimal teaching hours are from 9:30am-12:30pm. Generally, during this time,
one Coach can teach 3-6 classes depending on travel time. We will charge $30 per class
(standard rate) and can offer this opportunity to several current employees. This will allow
REACH to operate 2 shifts 6am-3pm and 9am-6pm.
2) REACH needs to find alternative ways to generate revenue to cover operating expenses, Relying on
the generosity of our giving community leaves REACH vulnerable. And although increasing rates for
families is a part of future strategy, (another strategy frowned upon by BGCA, they preferred that
Creating connections for youth to thrive in our community through meaningful, fun, real world experiences
Mailing: PO BOX 1810 Redmond OR 97756 Physical: 1379 SW 15th Street Redmond, OR 97756
541-504-9060 www.reachredni,oild.;ori-!
i
RE
�aMrand•€sp�+t3.te>ktiary,tc�tizs>Hwt �x
services be offered FREE, which is why Clubs have struggled in Redmond for 25 years!) rates must
remain reasonable so that all families can have access to REACH.
a. Each coach will need to teach 2 classes per day to break even by bringing them to Full Time with
benefits. All of the other classes taught above that is 10p% profit to REACH. Each Coach can
realistically earn over $1,000 net profit for REACH. And we have 10 part time employees,
b. our goal would be to begin with Lauren Kemp, currently our Healthy Lifestyles Director as the
Stretch -n -Grow Director. Ms. Kemp has a degree in Kinesthesiology (the study of movement)
and has been teaching Gross Motor Activities at REACH part time since 09/17. -During the 2018-
2019 school year, we aim to for Ms. Kemp to teach 2 classes per day to recover the cost of
adding her as a full time employee. Her job would include recruitment of new clients in the
preschool and daycare community and training additional staff members to teach Stretch -n -
Grow. We hope to see profit by the second year.
3) Extending the REACH Mission to a new age group.
a. Currently REACH serves youth Kindergarten through high school. Stretch -n -Grow will allow
REACH staff to engage with youth 18 months -6 years... before they even get to Kindergarten!
This will Increase visibility of REACH and create a natural flow of youth into the REACH School-
age program.
4) Utilizing a research and evidence based curriculum developed and designed by educators, doctors
and fitness professionals.
a. The Stretch -n -Grow curriculum includes preschool and school age lesson plans.
b. REACH currently operates without evidence based curriculum since leaving Boys & Girls Clubs of
America, although the work being done at present far exceeds the stock books that were
provided, REACH recognizes the need to have research and evidence based programs. REACH
will focus on converting their daily activities and vision into a formal curriculum within the next
3-5 years. (ultimately with the goal to franchise REACH!)
Our Executive Director, Jenny O'Keefe owned and operated this business in both Deschutes and Multnomah
Counties from 2004-2009. The business was well received by the local preschool and daycare network and
turned a significant profit. Between Jenny and 3 coaches, her business taught between 60-70 classes per week
in Deschutes County alone. All between the hours of 9:30am-12:30pm1 Jenny sold the Portland territory and
stopped operating Deschutes County in 2009 to pursue a Masters in Interdisciplinary Studies (Human
Development, Adult Education and Counseling) through Oregon State University. She retained ownership of the
territory and wished to grant use of this territory (at no profit to her) to REACH. REACH Board member and
Redmond City Attorney, Steve Bryant is generating a contract which will allow Ms. O'Keefe to retain the rights to
the territory, but allow REACH to use the business model and the territory with no financial gain to Ms. O'Keefe,
A grant in the amount of $5,000 would cover the cost of the re -instatement fee, which will allow one of our
employees to attend training in Houston Texas in August, so that Stretch -n -Grow classes could begin in
September. We hope that County Commissioners will see the value of this investment and provide REACH with
the funds to begin a new direction toward self-sustaining operations.
Respectfully, /
f }
Jenny O'Keefe (y
Executive Director
541-316-1989
jokeefe@reachredmond.org
Creating connections for youth to thrive in our community through meaningful, fun, real world experiences
Mailing: PO BOX 1810 Redmond OR 97756 Physical: 1379 SW 15" Street Redmond, OR 97756
541-504-9060 www.reachrComond�org
Deschutes County
Board of County Commissioners
Discretionary Grant Program
Board Meeting Date: August 15, 2018
Organization: La Pine Community Kitchen
Project Name: Produce Department Support
Project Period: September 1, 2018 - Ongoing
Description: Provide 3 months of support for produce department that serves residents in need
living in South County.
Amount of Request: $3,000
Previous Grants:
1/1512002 $ 500.00
/2/2002 voo.00
9//
Kitchen equipment and services
$ 3,000.00
6/22/2006
5/2/2007 $ 2,500-00
6/27/2007 $ 5,000-00
719/2014 I' -60�0—.04
Produce Area Repair and Construction
Approved:
Declined:
Deschutes County Board of COMIlissiOners
PO Box 6005, Bend, OR 97701-6005
1300 NW Wall Street, Suite 200, Bend, OR
Telept-,one: 541-388-6571 Fay.: 541-385-3202
Website; n2nvv zischute_M!g
DESCHUTES COUNTY
DISCRETIONARY GRANT PROGRAM APPLICATION
Taday's Date; 8 l3 l Project Name:
Project Beginning Date:q— - l g Project End Date: t r'
Amount Requested: �, X00 •�� _ Date Funds Needed:
Name of Applicant Organization:( i1;1; . 0�V'_y 'N° i
Address:
City&Zip Code• Lr,--?jC. —1Tax ID#• ��} .}�[�
Contact Name(s): 7::s ,.., :R-<,y_N�� Telephone #:
Fax #• e- �. Email Address
On a separate sheet(s), please briefly answer the following questions:
1. Describe the applicant organization, including its purpose, leadership structure, and
activities.
2. Describe the proposed project or activity.
3. Provide a timeline for completing the proposed project or activity.
A. Explain how the proposed project or activity will positively impact the community.
5. Identify the specific communities or groups that will benefit,
b Describe how grant Rinds will be used and include the sourer; and amounts of matching
funds or in-kind contributions, if any. Itemize anticipated expenditures`.
7. If the grant will support an ongoing activity, explain how it will. be funded in the future.
Attach:
Proof of the applicant organization's non-profit status.
' Applicant may be contacted during the review process and asked to provide a complete line item budget,
1. Describe the applicant organization, including its purpose, leadership structure and activities.
The La Pine Community Kitchen helps meet: the needs of those experiencing hunger and lack of
resources by providing free food and clothing to residents of Deschutes County. To meet this goal, the
La Pine Community Kitchen, known as The Kitchen, employs two part time paid employees and 45
volunteers who run the day to day operations of its three departments. The Kitchen is governed by a
Board of Directors; which is responsible for the daily operations and the fiscal health of The Kitchen.
The Kitchen has three departments and in 2017 they did the following:
The kitchen —17.854 meals. The per meal cost equals 1.02.
The closet - 39150 clothing and household items distributed. This equals 87 9700 in -Kind donations.
The produce stand 271,800 lbs. of food distributed. This equals339 750,00 In -Kind donations.
The La Pine Community Kitchen's departments fill vital needs for people living in and around La Pine,
The Kitchen provides hot meals from 12:00 to 2:00 pm. This program offers people who don't have the
resources either financial or structural to prepare meals for themselves, and as a side benefit, the
kitchen is a place for people to come together and socialize over a meal.
The closet distributes donated clothing, hygiene and household items. Wearing season appropriate
clothing and being clean is important of a person's health, safety and dignity.
2. Describe the proposed project or activity.
The produce department hands out produce, bread, dalry, grocery and baked goods that are donated by
local La Pine and Bend grocery stores, as well as Neighborlmpact. This program does not have income
restrictions like the federal SNAP program or food pantries, so anyone who desires fresh wholesome
food and cannot afford it at their local grocery store can come to the La Pine Community Kitchen's
produce department.
3. Provide a timeline for completing the proposed projector activity.
The produce department has been open and serving the residents of Southern Deschutes County since
2006. The department is open year-round supplying whatever produce and other food items that are
donated for the benefit of those In need. it is anticipated that the grant money requested in this
application will support the produce department for 3 months,
Explain how the proposed project or activity will positively impact the community.
La Pine is a rural community with a median household income, as of 2016, of $38,308. Deschutes
County has a median household income of $61,870 for the same period. According to
www.thestreet.com Ilfesty e , the average monthly cost for groceries is $330.00 per household.
Information isn't available on the average cost of groceries in La Pine, but even at the national average it
can be more than many in our community can afford on a regular basis. Nutritional support and security
help people lead happier more productive lives, rather than lives of desperation.
4. Identify the specific communities or groups that will benefit.
The La Pine Community Kitchen's customer data shows many of the produce customers are low income
seniors and families with children who are having trouble making ends meet while still providing fresh
food for themselves and their families. The produce department helps keep people nutritionally secure,
and healthy. This food support also helps those living with meager means to free up money for other
necessities like rent and utilities.
5. Describe how the grant funds will be used and include the source and amounts of matching
funds or in-kind contributions, if any. Itemize anticipated expenditures
The produce department offers only donated food, but the acquisition and maintenance of the donated
food costs a year. This money is needed to pay for fuel and maintenance of the Kitchen's truck that
picks up donations in La Pine, Bend, and Redmond. The produce department has 6 old donated
refrigerators and 4 freezers to keep the donated food fresh and safe for distribution. Finally, there is a
modest expense for utilities that support the climate-controlled space. This space is where hardier
produce is stored until distribution days. Although hardy, this produce can still freeze in the winter or
rot in the summer if the temperature in the space is not controlled within food safety ranges.
Annual truck expenses: Gas 4192 Maintenance JaL59 lnsurance 1947
Driver Pay: 81 7 Note: The Kitchen is not paying for drivers right now.
Refrigeration and freezer expenses: Electrical 2 567.39 Equipment replacement if needed $250.00
Climate control: Electrical included In above calculation. Equipment replacement swamp cooler or
heater if needed $600.0b
In Kind donations for this program were $339,750 In 2017, and it is expected to be the for 2018.. Future
grants from local foundations and local giving will complete the funding for the produce department for
the next 12 months.
The current budget for the Produce Department is $12,464 a year or $1,038 per month. Because we are
using a bare bones budget right now, drivers aren't being paid. Our drivers for now are board members
and a couple long term volunteers when they are available. Additionally, there Is no money for
equipment replacement.
6. If the grant will support an ongoing activity, explain how it will be funded in the future.
The La Pine Community Kitchen has been operating the produce department for 12 years. With the
continued donations of food, and the monetary support from the community and foundations, the
produce department will continue to be ongoing program. In-Kind donors are Rays in La pine, Grocery
Outlet in la Pine, Corner Store in La Pine, Fred Meyer in Bend, Market of Choice in Bend, Whole Foods in
Bend and Neighborimpact in Redmond. Financial donors are the community of La Pine during fund
raising drives and regular giving. The monetary donations come from various Oregon foundations which
change from year to year depending on their individual granting requirements.
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 August 15, 2018
DATE: August 9, 2018
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Consideration of Board Orders 2018-057 and 2018-058 to Hear an Appeal of Hearings
Officer's Decision that a Paved Taxiway Violates Open Space Requirements of Eagle Air
Estates Cluster Subdivision
RECOMMENDATION & ACTION REQUESTED:
Board approve Board Order 2018-057 to accept hearing 247-18-000626-A and to hear the
appeal de novo.
ATTENDANCE: Peter Russell, Senior Transportation Planner
SUMMARY: Eagle Air Estates Homeowners Association (EAE HOA) submitted a declaratory
ruling application (247 -18 -000138 -DR) that a paved taxiway did not violate the open space
requirements of CU-89-68/TP-89-701, which approved the EAE cluster subdivison. Following a
May 22 public hearing and the rebuttal period the hearings officer denied the EAE position,
ruling the paved taxiway did violate the open space requirement. The notice of decision was
mailed July 25 and Mike Morgan, a party with legal standing, filed a timely appeal on August 6,
requesting the appeal be heard de novo. Staff brings the matter to the Board as the hearings
officer's decision revolves around interpretation of County code.
STAFF MEMORANDUM
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
DATE: August 9, 2018
WORK SESSION: August 15, 2018
RE: Decision whether to hear 247-18-000626-A an appeal of hearings
officer's decision in 247 -18 -000138 -DR that paved taxiway violates 65%
open space requirement of Eagle Air Estates Cluster Subdivision
The Board of County Commissioners (Board) will hold a work session on August 15, 2018, at 1:30
p.m. to determine whether to hear an appeal of a hearings officer's denial of 247 -18 -000138 -DR.
The fact -specific controversy in this declaratory ruling was whether a paved taxiway does not violate
the open space requirements of the Eagle Air Estates cluster subdivision. The hearings officer ruled
the paved taxiway did violate the open space requirements. If the Board passes Order 2018-057,
the Board accepts to hear the appeal. If the Board passes Order 2018-058, the Board will have
declined to hear the appeal (Attachment 1).
Summary
Eagle Air Estates Homeowners Association (EAE HOA) filed a declaratory ruling (247 -18 -000138 -DR)
that an approximately 30 -year-old paved taxiway did not violate the 65% open space requirement
set forth in the subdivision's approval under CU-89-68/TP-89-701. The land use was filed in
response to a code enforcement complaint lodged against EAE HOA, a 12 -lot subdivision bordering
the west edge of the Sisters Airport.
After a May 22, 2018, public hearing the hearing's officer issued a decision mailed July 25, 2018, that
ruled the "paved taxiway at the Eagle Air Estates Cluster Subdivision violates open space
requirements." The County sent notice of the decision and Mike Morgan, a resident of the EAE
subdivision and a party of standing via his providing written testimony, filed a timely appeal on
August 6 (Attachment 2). Mr. Morgan requests that the appeal be heard de novo.
II. 150th day issuance of a local land use decision
The 1501h day for a local land use decision for 247 -18 -000138 -DR is September 12. Staff has
discussed with the EAE HOA president the relationship between the 150 -day clock and the Board's
requirement of a 10 -day public notice prior to a public hearing, the Board's calendar, and the typical
open record period following a hearing for public comments, mutual rebuttal, and final argument
and then deliberations and issuance of a decision.
At the time of this memo's writing, the applicant has indicated a decision on whether to toll the clock
or not will be made at an August 13 EAE HOA meeting. Staff will provide a verbal update on the
tolling decision at the Board's work session on August 15. The EAE HOA president and the appellant
are aware that under DCC 22.32.027(B)(a) the Board cannot violate the 150 -day requirement and
that in turn means the hearings officer's denial of 247 -18 -138 -DR would stand. The denial could be
appealed to the Land Use Board of Appeals (LUBA) if there is no appeal hearing at the Board level.
There is a scheduled October 23, 2018, hearing before a Code Enforcement hearings officer on the
paved taxiway. Staff has coordinated with the Code Enforcement specialist handling the case
against EAE so that if the Board chooses to hear 247-18-000626-A, the Code Enforcement hearing
will be rescheduled to a date certain after a Board decision.
III. Key issues in hearings officer's decision
The paved taxiway lies within the common area of EAE on land zoned Rural Residential (RR -10). The
hearings officer's decision on pages 11-13 summarized the major issues and which ones were within
his purview to rule upon based on the subject application and which were not (Attachment 3). The
hearing's officer in his decision narrowed down the focus to determining what is meant by the
following key issues:
• Definition of Present Use
• Definition of Open Space
• Definition of Development
• Definition of Enhance Recreation Opportunities
The hearings officer found "present use" as used in PL -15 Section 1.030(80), which was the
controlling document at the time of the application of CU-89-68/TP-89-701, meant the condition of
the land prior to the presence of the subdivision and its paved taxiway. This was based on the staff
report and the previous hearings officer's ruling in CU-89-68/TP-89-701 that summarized the then -
present use of the land, aka pre -development. In turn open space was land that was natural and
development meant paving or construction. Please refer to Pages 17-22 of the hearings officer's
decision.
The hearings officer agreed that flying private planes was a form of recreation and that either a
paved or unpaved taxiway did enhance those opportunities and thus complies with PL -15 Section
1.030(80). Please refer to Page 21 of hearings officer's decision.
Page 2 of 4
While public testimony raised the issue of how the 65% open space requirement is calculated and
shown on the approved EAE plat, the hearings officer limited his ruling specifically and purposely to
the application's ruling request of whether a paved taxiway violated the open space requirement.
The hearings officer did not rule on how the 65% open space was calculated.
IV. Appellant's statement
Mike Morgan states in his Notice of Appeal that "[A] de novo review will be required because an
amended plat for Eagle Air Estates will be submitted." Staff points out this is an appeal of a
declaratory ruling, which under Deschutes County Code (DCC) 22.40.010(A)(2) involves interpreting
"a provision or limitation in a land use permit issued by the County ... in which there is doubt or a
dispute as to its meaning or application." In this case, the contested term was open space, which
led to determinations on the relationship between the terms present state, development, and
enhanced recreational opportunities.
While parties can introduce new materials in a de novo hearing, a modification of the plat approved
under CU-89-68/TP-89-701 cannot be modified by a declaratory ruling. Specifically, DCC
22.40.010(C) states "[D]eclaratory rulings shall not be used as a substitute for an appeal of a land
use decision or for a modification of an approval." Declaratory rulings are for the resolution of fact -
specific controversies, as noted in DCC 22.40.010(B). In this case, the hearings officer ruled the
applicable fact -specific controversy was whether a paved taxiway violates the 65% open space
requirement. Please see Page 8 of hearings officer's decision.
Elsewhere the appellant argues an appeal is needed to determine compliance with the 65% open
space rule. Staff notes the hearings officer did not rule on the calculation of the 65% open space or
the details of what was or was not shown on the approved plat. The appellant in the submitted
materials raises several items specific to the plat's compliance with several sections of DCC 17.24
(Final Plat). Staff notes the appeal period for CU-89-68/TP-89-701 and its final plat expired almost
three decades ago.
Nevertheless, staff finds there is sufficient information that is germane to the fact specific
controversy of 247 -18 -000138 -DR to satisfy the appeal criteria of DCC 22.32.020(B) and (C).
V. Board options
Given several of the issues turn on interpretation of County code, staff recommends the Board
approve Board Order 2018-057 and hear the appeal (247-18-000626-A) de novo. Staff has
tentatively identified the hearing date as Wednesday, September 5.
Staff notes if the Board chooses to hear the appeal that any modification of the lot lines in EAE
would require a separate land use application for either lot line adjustments or a subdivision replat.
Attachments
1. Draft Orders Nos. 2018-057 and 58
Page 3 of 4
2. Morgan appeal
3. Hearings Officer's decision
Page 4 of 4
1 Application
DESCHUTES COUNTY
Land Use Application 117 NW Lafayette Avenue
W t PO Box 6005
{ Bend,OR 97703
Declaratory Ruling - NA 541-388-6575
247-18-000138-D
www.deschutes,org/cd tl lam✓ cdd-webmraster@deschutes.org
APPLICATION DIES 'DN
Type of Application: Declaratory Ruling - NA
Description of Work: Declaratory Ruling to determine that paved taxiway does not violate 'open space' requirement for Eagi
LOCATION INFORMATION
Property Address:
Parcel: Owner:
EAGLE AIR ESTATES
0 Pilot Dr, Sisters, OR 97759
141033D000099 - Primary
HOMEOWNERS ASSOC
(20% of original fee)
Address:
15860 PILOT DR
Declaratory Ruling
SISTERS OR 97759
Hearings Officer Deposit
APPLICANT INFORMATION
$55,000.00
Applicant:
Business Name: Address:
City: State: Zip
EAGLE AIR ESTATES
EAGLE AIR ESTATES 15860 PILOT DR
SISTERS OR 97759
HOMEOWNERS ASSOC
HOMEOWNERS ASSOC
Schmid Malone Buchanan LLC 550 NW Franklin Ave #378
Band OR 97703
APPLICATION FEES
Appeals to Board of County Commissioners Deposit
1.00 Qty
$2,718.00
Appeals to Board of County Commissioners Additional Fee
302.40 Amount
$302.40
(20% of original fee)
1,00 Qty
$,512.00
Declaratory Ruling
Hearings Officer Deposit
1,00 Qty
$55,000.00
Total Fees:
$9,532.40
Printed on: 08/06/2018 1
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NOTICE OF APPEAL
�7,
144,
(This page may be photocopied if additional space Is needed.)
Date: August 6, 2018
To: Deschutes County Board of Commissioners
Copy to: Peter Russell
Nick Lelack
From: Mike Morgan, party of record and lot owner in EAE
Subject: A de novo review of the Heating Officer's Decision in FILE #247 -18 -000138 -DR is required
because an amended plat and perhaps other new documents, will be entered into the record,
The Hearings Officer failed to take adequate notice of, and give effect to, the following in the
record of File #247 -18 -000138 -DR regarding Eagle Air Estates (EAE)-
--Memorandum from Senior Transportation Planner Peter Russell to RAE President Bryan Paxson
dated August 4, 2016, copy attached.
--The last two paragraphs of my letter dated February 2, 2018, copy attached.
--Paragraphs 2,3, and 4 of the letter from Steve Marsan dated February 6, 2018, copy attached.
--My email to Peter Russell; dated March 22, 2018, with attachment, copy attached.
--My letter to Hearings Officer Gregory Frank, dated May 28, 2018; the last paragraph on page one and.
the first paragraph on page two, copy attached.
--The letter from Peter Russell to Hearings Officer Gregory Frank dated May 2, 2018, in its entirety,
copy attached,
--The EAE final plat recorded June 6, 1990, copy attached.
--The Findings and Decision, dated August 8, 1989; re: CIJ-89-68/TP-89-701, by Hearings Officer
Edward Fitch, copy attached.
Appellant will argue and prove, beyond any reasonable doubt, the following'.
--The EAE development is, and always has been, in compliance with the 65% open space rule. This
land use action was recommended by county staff to resolve a complaint filed by David Campbell,
Manager of the Sisters Airport, alleging the 30 year old EAF taxiway violates the 65% open space
rate. It clearly does not and there is nothing in the DR record that suggests county staff verified EAE
was not in compliance. Mr. Campbell subsequently filed two more complaints against lot owners in
EAEbut those were dropped. He is not an innocent third party interested in preserving open space, He
is an employee of Benny and Julie Benson, owners of the Sisters Airport, and it's wrong for the county
to have allowed itself to be manipulated into a local dispute. Campbell's actions are vindictive and in
retaliation for EAE removing the unlawful 300 foot runway extension constructed on EAE common
property without permits and without permission. This adverse relationship has been known by county
stafflong before Campbell filed his complaint. used on recent measurements, the EAE paved
taxiway changes the 65% calculation shown on the recorded plat by less than 0.2%. But, there are
problems with the recorded plat. A land use action should not have been required to resolve a petty
complaint filed by persons known by county staff to be adverse to EAE. It seems common sense and
reasonableness have been abandoned.
--Hearings Officer Edward Fitch in 1989 found the proposed 12 lot cluster development is "...designed
to be an airpark subdivision". "The private road, as proposed, would also connect to the northern end
of the Sisters Airstrip.. lot owners could taxi their personal planes out onto the private road and then to
the airstrip" (page 2, paragraph 3, Fitch Findings of Fact). He specifically found "...that building
permits can be issued prior to complete utility and road improvements in the subdivision".
--The final plat recorded June 6, 1990, and actions by county staff, do not comply with the following
specific provisions of DCC Chapter 17.24:
a) 17.24.060 E - The exact location and width of streets and easements intercepting the boundary of the
tract must be shown. The one street in EAE, Pilot Drive, is not shown on the recorded plat.
b) 17.24,060 J - The location, width and type (i.e., route, lane, or path) of all bicycle and pedestrian
facilities, including access corridors, must be shown. The access corridor to the runway is not shown.
c) 17.24.070 E(8) - Requires a map showing the location of existing roads in relation to the dedicated
right-of-way. The recorded plat does not show Pilot Drive, the road, or open space in the right-of-way.
d) 17.24. 100 B - The county failed to verify the recorded plat is sufficiently correct. Common area was
not correctly tabulated on the recorded plat. The road (taxiway) to the runway was not shown.
e) 17.24. 105 B - The Planning Director did not determine that all conditions of approval have been
satisfied. The route, corridor, road, or taxiway to the runway was not shown.
f) 17.24. 110 A - The Planning Director and Road Department shall determine, whether or not the plat
conforms with the approved tentative plan and DCC Title 17. The road (taxiway) to the runway was
not shown. There could be no compliance with the tentative plan without road access to the runway.
--Senior Transportation Planner Peter Russell has made contradictory statements regarding the true and
correct amount of Common Area (or open space) currently existing in the EAE development. In his
August 4, 2016 memorandum to EAE President Bryan Paxson he asserts the plat correctly depicts
common area but in. his May 2, 2018 letter to Hearings Officer Gregory Frank he asserts a screen shot
from DIAL correctly shows common area which he acknowledges is also known as open space. The
two representations of common area are not consistent. The Appellant will prove the DIAL screen shot
more accurately reflects common area (or open space) and it is significantly more than that shown and
tabulated on the recorded plat. The recorded plat does not show or tabulate open space.
Pursuant to DCC 17.24.170 and ORS 92.170, the appellant will cause the errors on the recorded
plat to be corrected. Once corrected, the amended plat will show and tabulate all common area
and / or open space and /or natural area in EAE which will make certain EAE is, and always has
been, in complete compliance with the intent of the 65% open space rule and all other provisions
of the approved tentative pian pursuant to DCC 17.24.110 A and the "sufficient" standard per
DCC 17.24.100 B.
Respectfully,
Mike Morgan
Appellant See attached additional statement to the "Board"
Additional Statement to Deschutes County and ®f Commissioners
ItieTescuutes ZT17171
whether my request for a de novo, review should be —granted:
DCC 22.32.027 B2 c: My rights to happiness (flying my two airplanes recreationally), and the value of
my two properties in EAE, will be significantly prejudiced without a de novo review because the
applicant failed to present evidence that. the county made significant mistakes in approving a final plat
in 1989 that had significant errors per DCC Chapter 17.24
DCC 22.32,027 B2 d: There are significant policy issues at, play in this appeal. Is common area the
same as open space or natural area? What is the meaning of development as it applies to the 65% rule?
to the 65% open space rule? Is an absolute minimum of 64.8% open space reasonably considered
meeting that standard? What is the significance of, or meaning of, the word "sufficient" in DCC
17,24. 100 B.
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To: Deschutes County Representative
Re: Historic taxiway from Eagle Air Estates to the Sisters Airport Runway,
T -Ty name OFA;all an
since 1995 and lot I I since 2003
Your attention to this matter is appreciated
Wichael L. Morgan
February 6, 20-18
To Whom It May Gonr-em-�
In response to Deschutes County Code Violation 247 -16 -000375 -CE, dated June 20, 2017
re to nt
,taring a oomplaint related to taxiway and Paving ViOlafing 22919PM qui me s "shall
maintain a minimum of 65% of the land in
Please consider the following:
I ) Per USF S project 6160108 an estimated 200 It long, 12.5 It wide portion of historical
taxiway and 40 ft poftn of runway asphalt pavement pre -dates cwnty plat approval, To
avoid apportioning culpability and for the record, then only an estimated 163 ft long, by
12.6 ft wide asphalt joggle after plat approval is subject to the violation ((153"I2.5)
q8,13ft,'12 = 0.044 acres; (3925-0.044 acres60.37) acres= 0-649est eil,g%,
2j To how many decirnal points is the code enforceable?
3) Per August 4111, 2016 Memoradum fTom P. Russell to B. Paxson, The County's DIAL
$yslem iricorrecAy displays the private roads within Eagle Air Estates asgq-Mmon Olga,
but the approved materials at Pkd No, 701 label the cornmon area, do" not
Include the roads or easement.
4) EAF- common area and open area terms are coincidental and have been applied
Inte(changeably, However, It open spaces on either side of private road are consid"Od
per DIAL then EAE is not In violation.
5) Removal of taxiway asphalt and instead using a gravel of grass -ate system will
increase the Probability of foreign ot4ect damage (FOO). For example my Aircraft
propeller comes within 9.5* ftm the Wound.
6) The county approved application states lot owners could taxi their pefsonal planes Out
onto the private road (1C) and then to the airstrip",
We moved to DaschLfts COUnty partimdady Eagle Air Estates (EAC-) I& dired acrAsz to Sisters
Eagle Airport and because -it was an estaNished 'airpark subdivision' community dedicated to a
cornmon interest in rweational flying (ref. C11-8MBITP-89-701 approved EV1189).
My property was the first to construct a hangar at EAE completed O=W1991. All Uvehre
properties have subsequently built hangers, the last permit application being screened and
approved by the Oregon i)epartrnent of Aviation and Deschutes County in 2016.
I have dedicated my life to the promotion of aviation and have skated the joy of aviation Witt)
everyone around me, Finding a viable aviation community has been a dream come true. Now I
arl, 50 years, yet I still remember rrm as the hardworking 16 yr old who dmamed while washing
airplanes for flying time. Please ctmaider, wWmt a Prop" Paved taxiway connecting to the
runway, it incrementally undermines Peace, enjoyment and the dreams that brought me here!
Sincerely,
Steve R. Marsen
Page I of I
Mik=M2or
.Ian,
From: "Mike Morgan" <morganQbendcabIe-com>
Date: Thursday, March 22, 2018 12:12 PM
To: "Peter Russell" <Peter,Russellal- schutes.org>
Cc: "Nick Lelack!' <Nick. LelackQdeschutes.org>; "Todd Newman" <newman-62@att.net>; "Steve
Marsan" <steve@innoviator.com>; "Dean Hodges" <dean@deanhodges.com>
Attach: Runway access letter.pdf
Subject: File 247 -16 -000138 -DR
for three Connect Oregon grants listed the airc
the count of aircraft based at the Sisters Airport, These access rights were memorialized in
a Letter of Understanding in February of 2016. In December of 2017 these individual access
agreements were unilaterally terminated by the airport with the threat to sue for trespass
any adjacent property owner who continues to use the runway. Attached is an
unsigned example of this document. All EAE members have been advised by legal counsel to
continue tendering payment as required by these documents, Given such tender the
airport has no legal basis to terminate our access rights. The fight about the 65% rule is to
accomplish what the airport owners can't accomplish by their attempt to terminate these
agreements; i.e., deny all EAE members the right and ability to access and use of the Sisters
Airport Runway.
Michael and land_Mlowm
15925PiloLD v Sisters Runway, Inc.
rLs
Sisters, iia �2�7 AND An Oregon Non -Profit
Owners Eagle Air Estates Lot 9 Corporation
the ("Adjacent Property Owner")
Re: Access and use of Sisters Eagle Airport runway by Adjacent Property Owner
The runway of the Sisters Eagle Airport is owned and operated by Sisters Runway, Inc; an Oregon
Non -Profit Corporation. The purpose of this letter of understanding is to clarify and memorialize the
existing verbal agreement between the parties and supersedes and replaces any other written or verbal
agreements. This letter of understanding constitutes an. agreement that is binding on the Adjacent
Property Owner, their successors and assigns; and Sisters Runway, Inc. and its successors and assigns.
Sisters Runway, Inc, warrants that Adjacent Property Owner has a legal right for occupant (or
assigned in lieu of occupant) aircraft or visiting aircraft access and use of the Sisters Airport Runway
from Adjacent Property Owner's privately maintained taxiway. Such access and use of the Sisters
Eagle Airport Runway is subject to Lite following terms and conditions.
To maintain legal access far Adjacent Property Owner there must be paid to Sisters Runway, Inc. a
monthly access fee of $50 per month regardless of whether or not there is any aircraft operating from
Adjacent Property Owner. This monthly fee will increase annually by $ 1.00 per month starting
January 1, 2017 and again on January I every year thereafter. Legal access will terminate and this letter
of understanding is void if this fee is not paid for three consecutive months or if any delinquency is not
resolved within 10 days of receipt of any demand letter from Sisters Runway, Inc. Rental provision: If
Adjacent Property Owner rents hangar or tie down space to additional qpsr4ting aircraft beyond the
occupant allocation in the preceding paragraph, there will be an additional monthly access fee for each
payable to Sisters Runway Inc. under the terms and conditions stated above.
All aircraft operating from Adjacent Property Owner must comply with all rules and regulations
universally applicable to all other users of Sisters Eagle Airport.
This letter of understanding constitutes the entire agreement between the Adjacent Property Owner
and Sisters Runway, Inc.
Adjacent Prop" Owner Adjacent Property Ownei-
Benny Benson for Sisters Runway, Inc.
May 28, 2018
Delivered by Email
To: Gregory Frank
Hearings Officer
From: Mike Morgan
EAE Lot 9
Dear Mr. Frank
Paragraph 3a: Attached (Ex. A) is my fully executed Letter of Understanding documenting my legal
right to access the Sisters airport runway, Eleven of the twelve lots in EAE have a legally executed
"Letter" exactly like this one. This document does not need to be recorded to be binding on the parties
to the "Letter". Given the existence of these "Lettere' evidencing a legal tight to access the airport
runway from the EAE "privately maintained taxiwa)e', it is disingenuous for Ms. Dickson to argue, on
behalf of the airport, that EAE is trying to ".-legitimize this illegal and unapproved access".
It is unfortunate that the county would allow itself to be manipulated into a local dispute involving
parties that have been adverse for a long time. The EAE historic taxiway, if taken out, would affect the
65% rule by less than 0.1%, This is within the tolerance of the land survey upon which the percentage
of open space is calculated. This is an gxtreme example of retaliation, by regulatory complaint, by a
patty with an agenda far beyond the 65% rate or whether or not a small amount of asphalt can be
applied to open space. That agenda is to punish EAE members for not supporting the runway extension
(sometimes called runway end safety area or overrun) constructed on EAE common property without
permission and not initiating a land use action to allow it to stay. The construction of the unapproved
runway extension initiated an investigation by the Oregon DOJ resulting in a. breach of contract claim
in Marion County seeking the airport t s return of $733K in state grant funds.
There are 18 properties adjacent to the Sisters airport that have historically had access and use of the
airport runway dating back many years. The airport's applications for three Connect Oregon grants
listed the aircraft stored and flown from these properties in the count of aircraft based at the Sisters
airport. These access rights were memorialized in the Letter of Understanding of February 2016 as
indicated above. In December of 2017 the airport owners tried to unilaterally terminate these
individual access agreements with the threat to sue for trespass My adjacent property owner who
continues to use the airport runway. See Termination (Ex. B). EAE members have been advised by
EAE legal counsel that the Letter of Understanding is a contract creating an easement and to continue
making payments as required by these documents. Given such tender the airport has no legal basis to
terminate EAE member access rights. The fight about the 65% rule and a little asphalt is to accomplish
what the airport owners can not accomplish by their attempt to terminate these agreements; i.e., deny
EAE members the legally documented and enforceable right to access the Sisters airport runway from
the privately maintained EAE taxiway that's been in the same location and in continuous use for three
decades.
Paragraph 4 is simply not true in its entirety. There is no safety issue regarding the EAE taxiway. It
enters at a right angle at the end of the runway just like the vast majority of general aviation taxiways
all over the world. It's nonsense to suggest moving EAE's access to the mid -point of the runway
length. This would require all aircraft entering the runway at that point to taxi on the runway to either
end for take -off. This is very dangerous because the taxiing aircraft can's see what's coming in behind
them and landing aircraft are focused on their chosen spot to land and their instruments; they are
generally not looking the length of the runway for other aircraft entering the runway mid -field. The
airport in 2015 spent a lot of state grant money to put a parallel taxiway on the SE side of the runway,
in part, to eliminate two mid -runway access points on that side of the runway. This new taxiway enters
the runway at a fight angle directly opposite the EAE taxiway. The grant application said it was a
necessary safety improvement. If EAE's taxiway is unsafe, as alleged by the airport, then so is the
airport's new taxiway that enters at the same end of the runway in exactly the same way.
There is no basis to the argument the EAE taxiway causes a flooding risk, Its lowest point, where the
10-1 wct.
either side; there is no dam or restriction formed by the EAE taxiway. There is a berm between the
runway and the EAE SE property line, parallel to the runway, to keep Trout Creek from flooding the
runway mid -field and preventing some of the water from flowing to the other side. In 18 years the
highest the water has ever been at the EAE taxiway is 4-5 inches above the low point about 6 feet from
where the taxiway intersects the end of the runway. The creek flows easily across the asphalt taxiway
and disperses on the other side into the Indian Ford Creek meadow which is a known wetland. There
have always been geese in the area of the Sisters airport because it borders this meadow and it's flooded
by Indian Ford Creek most of the time in winter and spring, This meadow is a a popular nesting and
feeding area for waterfowl, There is very little traffic at the Sisters airport during the months the
meadow is flooded.
Respectfully,
Mike Morgan
(541) 549-8898
Ex. A &
Fogjp�I�riqg' pippill I I � III I I I IIpI I �i 11
DATE, May 2, 2018
TO. Grogloty Frank, I-learings Officer
FROPe f ellTransportation Planner
II
R E lMajor topics for File 247 -18 -000138 -DR
HEARING- May 22, 2018
PO Box 6005, Band, OR 97708-6006
117 NW Lafayette Avenue, Bend, OR 97703
TEL (541) 388-6575
........... ................ ... _11_-1-___
Due to a code enforcement complaint, Eagle Air Estates Homeowners Association (EAE HOA) filed a declaratory
ruling to determine if a paved taxiway violates the open space requirements in the approval of the EAE
subdivision under CU-89-68/TP-89-701. The subject property is identified on the County Assessor Tax Map as
14-10-33D, Tax Lot 99. Staff has identified several threshold questions for the hearings officer's consideration
based on the submitted application materials, public comments, and staffs review of the applicable zoning
codes, Staff presents these in no particular order of priority.
The taxiway in question leads from EAE to the northern end of the Sisters Eagle Airport, Runway 20. The roughly
325 -feet -long taxiway has been in existence and use for approximately 30 years. Figures I and 2 depict the
paved taxiway and the common area.
Is a paved taxiway allowed In the Rural Residential (RR -10) zone?
CU-89-68/TP-89-701 was reviewed under PL -15 and its Section 1.030 and 8.050 and the then -current Rural
Residential (RR -10) zone, which was Section 4.120. Conditional uses were listed at Section 4.120(3) with (G)
allowing airstrips, but with qualifiers in terms of usage. (While the code specifies airstrips only, for purposes of
review staff assumed the language for airstrips would apply to taxiways as well. PL 15 Section 1,030 defined
landing strips at 1.030(60) but provided no definition for taxiways. Oregon Revised Statue (ORS 836, Airport and
Landing Fields), does not define taxiway; Oregon Administrative Rule (OAR) 738-005-0010 defines taxilanes and
taxiways, but these definitions cite circulation within an airpor1I
Section 1.030(60) Landing Stria. An area used for landing and taking off of aircraft for the personal use of the property
owner and his guests, or aircraft employed in agricultural operations.
'(126) "Taxilane" means the portion of the airport apron area, or any other area used for access between taxiways and
aircraft parking or storage areas.
(127) "Taxiway" means a defined path established for the taxiing of aircraft from one part of the airport to another.
Figure 1. Paved taxiway from EAE subdivision to Sisters .Ai rt (overun at north end has since been removed)
rigure 2. Eagle Air Estates Common Area, aka Open Space, shown in yellow
247 -18 -000138 -DR (Bagle Air Estates taxiway)
G, Personal -use land strip for airplanes and helicopter pads, including associated
hangar, maintenance and service facilities. A personal use landing strip as used
in this section means an airstrip restrldvd except for aircraft emergencies to
use by the owner and, on an infrequent and occasional basis, by his invited
guests, and by commercial aviation activities in connection with agricultural or
forestry operations. No aircraft may be based on a pnal-use landing strip
other than those owned or controlled by the owner of the airstrip. Exceptions to
the activities permitted under this definition may be granted through waiver
action by the Aeronautics Division in specific instances, A personal -use landing
strip lawfully existing as of Sept, 1, 1975 shall continue to be permitted subject to
any applicable regulations of the Aeronautics Division. (Emphasis added.)
Sisters Eagle Airport became a public airport on July 1, 1967, owned by the State of Oregon. Later the airport
was sold to Brooks Resources, a private company, on March 22, 1978. The Sisters Eagle Airport has been sold
several times since, but has remained in private hands, but open to the public. The Oregon Department of
)*4Ua1Tw.x*U_= lurt-w-iAeronautics Wsion,, classifies Sisters Eagle Airpon as a Category IV Local General Aviation
Airport open for public use and privately owned.
Staff looks to the hearings officer to detennine 1) whether a paved taxiway, which can only be used by EAE
MSXXXN�- y ther
connects to a public use airport does the taxiway still comply with the personal -use requirement,
Is a paved taxiway allowed in the open $.pace area?
-.3!Wv51j-;F
A"rA&ftts_ �reallowed_nrovided the density bonus
includes at least 65% of the land he held in open space. Cu-89-68/TP-89-701 was approved as a cluster
�5;41-1'f �;W TMI'Are'Ef QN-cPaw- from the 1989 land
use decision, the terms open space and common area were used synonymously.) The approved plat for EAE is
60.37 acres plat and includes the following annotations:
* Common Area 39.25 acres
* Road right of way 3.40 acres
* is, access easement 0.60 acres
* Lots 17.12 acres
Two
Eagle Air Estates is a cluster su*011,1560f', Mur"Iff40TY
residences, but dedicated open space is required to offset the increased number of homes. On page 4 of the
findings and decision for CU-89-68/TP-89-701, the decision states:
0 =7
247 -18 -000138 -DR (Eagle Air Estates taxiway)
Open Space, Lands used for agricultural or forest uses, and any land area that woul
if preserved and continued In Its present use, conserve and enhan
natural or scenic resources; protect air, streams or water supply, promoT
conservation of soils, wetlands, beaches or marshes; conserve landscap
areas such as public or private golf courses, that reduce pollution a
enhance the value of adjoining or neighboring proper"'; n nce
value to the public of adjoining or neighboring parks, for:st�sa, wild'li
preserves, nature reservations or other open space; enhancerecreatI
i
opportunities; preserve historic, geological and archeological sit
promote orderly urban development; and minimize conflicts betwe
farm and nonfarm uses, (Emphases added.)
Staff looks to the hearing officer to determine whether 1) whether a paved taxiway is a recreational use or a
transportation facility; 2) if a paved taxiway equals development; and 3) if a paved taxiway used for general
aviation purposes for the residents of EAE constitutes an enhancement of recreation opportunities.
Does a paved taxlway cause EAE to violate Its 65% open space requirement?
The location of the runway is not shown on the FAE approved pl.t, The runway crosses an area labeled
common area. Staff notes the taxiway's size does not appear in the plats acreage summary in the above
summary. The 15' access easement pertains to a utility corridor at the north edge of EAE and the road right of
way is for Pilot Drive.
Staff looks to the hearings officer to determine if the paved taxiway causes EAE to violate the 65% open space
Ile
AMR
t
easement may have been established by its open use and that the airport's various owners never prohibited its
use,
4
247 -18 -000138 -DR (Eagle Air Estates taxiway)
I
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OM
Ar
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t -O -i NCV:r2
Ar
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pr8liminary Plan,,
lbevis8d Vlan�
site of 03eqon 4NivO�'Wn latt�r
i3f Ormek -n Aevan"iktte"s d&t4
ITM
U polic AImorandu-'-1 20, 1989;
G. imme GOMM Letter day"! MY
tf I Vnsign8d a�rstt�ly dated ?,
FwNIDING"i Mw.3
ao'
—
Exmbm I
I of 12
WT
PTODINGS AND D��IMIIIIMIQW
NO,
Andy Goodsell
Kent, Wp�
ko-v UNS8 Po'�tmit on
1p Cluster t)ovAAopmnt and an apWAMIOn W o
0"-q th"n I lot
gwrk Skhipffian
Tb�*, app,�A.�nnt 7,mict 0,11tabli&h that 1:he Ondi-
tionllai Use 91"It-11 $.N., fi3f, ti�ectio.'m
an6 a„O"xO ¢of Tl�'-15� the 1'o�"Ohutes county-
20ning urdir'an4�'O' a-14
Deso4 lutes county,
T
sirpom
and toot of caq) Polk Mad in Sisters, and
is Wrther
iwTaK U«tt: 'M-4' MOO, 71*. and 704" An
Townsh�p 14
Wstlq!F'S M) ft-s't,
Vie "�axbjt�;ct
hz7s
an
1401 comb,t!irkg Vie zm;�m Ik,s
desimn"ud
as himcwL un:) Ei)y tS,18 'Oekwbutm
Comny CoWreWaMe Plan,
, 4RING MD EYMXXTS
,I&
11;""Q hecrinq W"3s he,16 W1 July is. 1189S mid coirtimed to P.,)"
1909, at the Imuchuteg
County Th
pollowbW exhibitu bake kqi the remwd In Rio madie r.
pr8liminary Plan,,
lbevis8d Vlan�
site of 03eqon 4NivO�'Wn latt�r
i3f Ormek -n Aevan"iktte"s d&t4
ITM
U polic AImorandu-'-1 20, 1989;
G. imme GOMM Letter day"! MY
tf I Vnsign8d a�rstt�ly dated ?,
FwNIDING"i Mw.3
ao'
—
Exmbm I
I of 12
11 staff Report, and
jo Planning Departmnqt dated AkguRt .1, 1969,
WINNINGS OF FACT
T h --,txbj"-,t area is approximatelY 60 acres in site, a"
conaist.s of four ,14) taxhe lutea TtcpographY is generally
level and hag a Vagotativo toe�sring of bunch grasses,
bitterbrushplp ir. n e--, tree -s The site is
_jdevejoped and has old dning pit Incated in the
s&ca t
11,4e s
xn pc�rtj.an of the parcel, CauT Polk Road WDuts
We pAruel an the west, and LI -e sisters IBarclay) Air,14tr-,P
rons
jh ear eastern portion of the Parc01.
2. Land.uses in the surrounding area consist Of Indian Ford
,j�btjjvjsjon to the north and west, Trapper 9010t
'
Subdivision to th-3 c40st, Sisterq - (Barclay) Airstrip tes the
,,,tb and east and p mix of rural lots to, the, OfqZt, x�e'
primary uses occurring in the area ar� rval
,ith Q,e farm uses an email tons acre) to MY= (30
acres) parcels.
31 The applicant has 1r0PQ,`Qd a 1->' Cluct'r
WIWI Eagie Air Mates. Access to the lots Vllonld be Ott
of a private rual f0ad The private,
rod d,at� ,MA 0end,of
the SisMrs Aixotrip. The 100 2 lot du=110W is cat' Wed to
bn an airp4)rk ,Ubdivision, where lot awnerS cotld to yl their
personal planes Out Onto L 'he
itjtj prj.vate road and then to L
airstri,
The pral im TMrY plan submUted with the subdivisicni
appjjcatj�3, sjj,s all. the jo,tf; w,�-!t of the airstrlp with one
lot near the end in an 0"t"a SmadOw area- The plan
8 n C
indicaLes 32 parcels of ac"-, �i i Z., ` a
TransmJttall,, frm vari-us, sLate and local P;tblia: agonciess
had tho followiP9 COMMP�ts--
W The Mayon state Dopart-a-0.- of I)j.vision
",X' port
Sent, a iarge pa('-Jke� n a
bi 1.", Ey' !vode I a 1 rt o r t. etc.
wmevar, MY did not have co7.;3Filent3 on the
proposv,i:l of this time
The County workspartmont had 90'Veral COMeDt
Ms
r�)qardir,g the proposed de . VeIOPment- Ono key issue ot
concern is the location of the Proposed V)ccess road,
into the development,
NGS AND DECISION, FiIO Nos- 1-U-S9-G"TP
ENIK I
2 of 12
The, C(-,AMtV
P -'V""0;5 fkatea. th'at
aeptic sito cvaj�Aatit)n!i will bv� rogvired for- a22M
Parcel.
ire, had
aS t hat
n, que ion - w
pt:ov.�,5jons we 9 being made for
fire flume for th.,
devo> loprgent'
At the he4aritlg or"'Cwgkit't
revuld PIMI whjC""- maq!" (V
0--e
been addremsed by We 3%lan8irK-I
approval Wed Emen the t*"Sco PU.M,
COMMIXWARY PIODINGS
52. cw%Eortw.kc'oo With the Ve8c%utiM' couety cn�mpr0wnzi-v'� -Plan.
J� Ag't-i Qo' Iturn 3, O'c"al �" Policlor'
"GOAQ
To PrOselsb acs k' Of 'Itk Detthut"" CO"Ly Kar
the Prodysion of far v, " and kore"itry a� We'll
Ito molls claa&ficatIM, On 011�, ParM-1 iv Cormidnrad &A
marginal farm Md. How evf�;�' tbwr� "'sl 'n
amount of troos over to mAjowity of the Parcal wbi&
Vould f txe th6 pr?3Vsfty 1110 `e tawar& �orevt
With �Mll axea In L -hs:' northeasLern area which '�ould
Xe tatilizgd pastur,�,
-ee
nalls for a clu6b'�rin4 of' 12 howas1 t
tK6' jz3nd. with 'If, tha� lane, "Iet
�)Pon Thia dloa�XY IhOeItO Chd IWeM,
There no pollx'jiepj in. Ute at�ricultLwa- '�"-ctiba nf
F,ho Compreh,"-xuive Plar� twKe applioabl*
J�POR:T - The WIG in the
Plaf, artr :'i ii. i;>peclf')"C:ally Ix t3'i8 Y�quc,Yzt-
MI
RURAL , ML MMNIT MkLS TCTP�S Th, f �)'11 ow I wj
goajF. nld policiss k)re appli�-Iftble LP thik
GOALS n
T,* preqerv, aud onnanc;e. the op�,.n epaoez, rura,
charaot"r' '•1F3luf' and of
the counLy ,
ffiINDINQS AND Dzcxg"�ONa Pile No�'
EMR1
3 *1121
b To qtt i6o the 10ea t ioT-k and '� § sl g n Of ;cl;. Y -a J.
deve t S(�� a") tc) Fit in iwl,i,xe the pub Ii C Coet 's of
a ��i I i Uisn and se"Ims, to awdd uwmc"Sar,V
of servicc- Pru�-ervf�,
and the Wety and viabUity of rural
hyla uses,
C To pr ov Ula f -Cir th', POsrlit' lt� 3-"ty' "t4n3'l exllaY
urb4a
between twban
Fed :e3r:Fsrz 51% of the new CW.)r0,.y
Inside an urban MOM vith O"Y new rurf
lots requir;;6, and in liot of the j n a 1'�
and af-', 'wel.1 th')
and public zendce ynmtm�
all futace rural devehupmoot 013 be staint ently
roviownd for PoWic need before UPPx0val. Ax.s
.. lot-,
..........
............
A MD,
iak.`ktd�.'A (Othf7tenf,-rtjy, Pub
fa,"tion, sapaty and other developveniv aspects
*halj, al�;fj be �,Qasidler�101, future
A vision in hr Y � Ma nty li rk Cl t=4 v t. j o p Iota
41K-,;.zkdy exist,
Clustor or P-IMsed development of-Fer"i if4 ni f 1 e, a r't
sa"nga to 110o becau7 n of reducor� ronc way,
atiliQ and Constuation COSQ, Public toctn to, t3e,s:Ve
<,,l !,k s t -3 r developments are ale* Usna 1 ly lower.
Th�-ro4fore, tc$ e norLv rar3o dc, ve lop'sle 1) t and p ar), ne d
than
as Awressu; i I; d;rpt, x, Fycq�_ to ..t a
. . .. ........ WIS, ............ VILA as lqxmyf.�
cluster and gaanned d V� 11 €a 3, OPM 0 0 t n Oh&l I Mai Dl:a in a
minimum of 15% of the land kn open Spacs, timbOr Or'
agricoltural". ata -(-,ol"Ipatible With, Use suxrotlndir�g area
and the deveaoPn--nt area The open 'Snw,r� of the
davalmmwnt way be PAWASIF a8 a 6OPMrato Parvol ow in
OMMO
da wneryop of 1MM: Ur all of: Lhe CIUMUM unit;
howeven tho <ii
j .) e?' e-, r :� 4., ah .1 .1 Ct
Lho whoin dvvc&qmuM Q brought
I naide an unmn grmth boundary. Also service
ioro, Mll be the -minimum leqgUl rtet,ess4ry 'nod
uw,ae rg ound wh,�rn feazil)le- Road�i shall -imeet county,
EMA 1
40112
, 1) a '�O d n t; a fired t<"i tht� P .'V t' � 11. C za T -'d yt3i& y t-.'
in th'�"' C*unty Road SYMP)II by the County to
eila n4i"a
0. 14 thin
11NATRAM use U, _._£ ie
...........
..............3x c3......
1. .
c W' �IU ii.
ARMS,
The agid: lioa&V proposal SpeAfkally IMULS the goals as
m=od above,me�uta Po)A(e;; 3, 8. F n'-' V e r ,
c- ' t -"'t Zi �ix'm"'3y' of exinting
within a three MAIR 1 7f'4 ke I
th,t the proposal JS UniqUe rmmparini,.)n. tO the other
r�'J,elonti al. >_n avo"
w,,,%th SonAnn AWD (IQ of PLnS,
Il The a .2
I'Anique and wov_""
r oq i ek, agi tum i ty for
rhe live in a Kura! WWI aM
POWs in On�',
social and Pub"'t i C 15 too
Apacts Imm the. Proponal a.x.e dikftek'It 20
m8a*3iWE? Th�'X?: will tke a"ed tYaUA;� to f�amp
poik pond and -to the Sintem Airstrip, thin
Quaid coyote Moro tHP8 In and out & the
airstri ' n which will appear to have
noiE3kl i,ripa�,t <Nlz OW are,')_
13) The effect of the development of ttle t:ux-al
character of the Are& ohould not b a-
dotriml:Atal , propm;al IaPpear;� �.<) fit
well wi,-th th'n' euzm��I�ndinq I'And usea ard should
rso't uad%?ey"sely aftect the ax -ea,.
The affact ,m t.Ie and forestry in.
the area Will alm- be min'Unal' llm ad4itscmul
will i rvc an nf�u-'t on any Wildili!e.
that rsuioe on the pnrcal loo miqxak"�
Nowever, the clmztnring rhe. prf""xm06
homar'lte8 ollo"Old rU60e_'e- the i mp a C t. t-
EMOR I
S of 12
(1) V,10 pr'V08-Al 6i�IeeI
Of the cotfn'rm ".0
th W m! t e r appl, iar"'nt' I F,
-911'all verii!y tIAQ in Writing
to the Planning DiviA'I'on
(Y The open Sg= areas = P=0008 tO vsmair�
BlAtura"I Rad Wjt Put towa'."d any development"
C, amfwWanas with v)QUance 81-04V
epplicanf, wa-11 need to zw>ma a rovl��,or, 4,rawiog tx%
the WIN *,rkr, Dmartxent , e PlanniDg Di v I�i i'or,
addlx:esging '4"he C , Isar VaLzao-n iasue at the revood acme's
location,
7, i�tafa-Lo' the "'Irllqucme3a CI th'-S VUbdJ,QiSI0y'I PrOrlor81 I thA�
Hearings oEhIcor Linda thot building parmita can bA
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HEARINGS OFFICER DECISION
FILE NUMBERS: 247 -18 -000138 -DR
HEARING DATE: May 22, 2018, 6:00 p.m.
APPLICANT/OWNER: Eagle Air Estates Homeowners Association
ATTORNEY: J Christian Malone
550 NW Franklin Avenue, #378
Bend, Oregon 97703
STAFF CONTACT: Peter Russell, Senior Transportation Planner
HEARINGS OFFICER: Gregory J Frank
SUMMARY OF DECISION: The paved taxiway at the Eagle Air Estates
Cluster Development violates open space requirements
APPLICABLE CRITERIA:
Public Law PL -15
Section 1.030, Definitions (21) and (80)
Section 8.050, Specific Use Standards (16)
Title 22, Deschutes County Development Procedures Ordinance
Chapter 22.40, Declaratory Ruling
Land Use Approval CU 89-68/TP-89-701
BASIC FINDINGS:
A. LOCATION: The subject property is the Common Area associated with the Eagle Air
Estates Subdivision and is identified on County Assessor's Tax Map 14-10-33D, as Tax
Lot 99 (the "Subject Property").
B. ZONING: The Subject Property is zoned Rural Residential (RR -10).
C. LOT OF RECORD. The Subject Property is a legal lot of record because it was platted
as the Common Area of TP -89-701, Lot 0, of Eagle Air Estates Subdivision.
File: 247 -18 -000138 -DR 1
D. PROPOSAL: The Applicant is requesting a declaratory ruling to determine that the
paved taxiway does not violate the open space requirement of the Eagle Air Estates
Subdivision (CU-89-68/TP-89-701).
E. LAND USE HISTORY: In 1979 the County approved a plan amendment/zone change
from Extensive Agriculture to Planned Rural Residential and a zone change from Rural
Recreation Residential (RR -1) to Planned Development (PA -78-12/Z-78-67) for this
property. In 1980, the County approved a multi -phase condominium development
totaling 175 units plus a 150 -seat restaurant (SP -80-44). The development was known
as Lake Village, but was never constructed. In 1989, the County approved a conditional
use permit for a 12 -lot cluster development subdivision, Eagle Air Estates ("EAE Cluster
Development") under CU-89-68/TP-89-701.
The EAE Cluster Development abuts the northwest edge of the Sisters Eagle Airport.
The EAE Cluster Development is an aviation -oriented single-family subdivision with
hangers on most of the developed lots. A paved taxiway leads from the end of a private
roadway (a turnaround) through the subdivision to the Sisters Eagle Airport runway. A
300 -foot overrun area was constructed on EAE Cluster Development open space
common area property at the north end of the Sisters Eagle Airport some time in 2015.
The County opened a code enforcement case, citing the paved overrun as an
unpermitted use in the RR -10 zone and in violation of the 65% open space
requirement of the EAE Cluster Development approval. The County provided an
August 8, 2016 memo to Applicant outlining several potential corrective actions
ranging from removal of the overrun to text amendments to a declaratory ruling on the
issue. The overrun was removed in December 2017.
Subsequently, a private party filed a code enforcement complaint against Applicant
regarding the paved taxiway, claiming the paved taxiway was also an unpermitted use
in the RR -10 zone and violated the 65% open space requirement. Applicant,
thereafter, applied for this declaratory ruling in response to the code enforcement
proceeding.
The paved taxiway, located within the open space common area, has existed for
almost 30 years.
F. REVIEW PERIOD: The application, in this case, was submitted on February 8,
2018, and deemed complete by the Planning Division on March 9, 2018. The original
150 -day clock expired on August 6, 2018. At the May 22, 2018 hearing the Applicant
agreed to the following timeline: May 29, 2018 for additional written comment; June 5,
2018 for mutual rebuttal, and June 18, 2018 for final rebuttal. That added 27 days to
the calendar, moving the 1501h day to September 2, 2018 (which is a Sunday).
Opponent's Attorney, on June 28, 2018, requested the Hearings Officer address the
possibility that Applicant submitted "new evidence" in its "final argument." Applicant
agreed to a further extension of the 150 -day clock. The Hearings Officer finds the
1501h day, for this case, is September 12, 2018.
File: 247 -18 -000138 -DR 2
II. GENERAL FINDINGS:
A. HISTORY
The Hearings Officer finds there is little, if any, dispute as to the accuracy of the dates,
times and events related to the development of the Eagle Air Estates Cluster
Development ("EAE Cluster Development"). A brief history of the EAE Cluster
Development follows.
On or about 1989 Vern and Sandy Goodsell (hereafter the "Original Applicants")
submitted an application to Deschutes County requesting approval of a 12 -lot Cluster
Development located directly north of, and adjacent to, the Sisters Airport.' A decision
by a Deschutes County Hearings Officer ("Hearings Officer Fitch"), titled Findings and
Decision2 ("CU-89-68/TP-89-701 Approval") and dated August 8, 1989 summarized the
Original Applicant's request as follows:
"The [Original] applicant has proposed a 12 lot Cluster Development called Eagle Air
Estates. Access to the lots would be off of a private road leading from Camp Polk
Road. The private road, as proposed, would also connect to the northern end of the
Sisters Airstrip. The 12 lot development is designed to be an airpark subdivision,
where lot owners could taxi their personal planes out onto the private road and then
to the airstrip."
Later, in the CU-89-68/TP-89-701 Approval, Hearings Officer Fitch stated:
"At the hearing on August 1,1989, the applicant submitted a revised plan which
addressed many of the concerns that have been addressed by the Planning
Department and others. The applicant and the Planning Department and others
recommended approval based upon the revised plan."
Based upon concerns for the safety of vehicles traveling on the internal private road,
Pilot Drive, the Original Applicants modified the design for Pilot Drive by ending the
private road at a turnaround and not at the Sisters Airport runway. The CU-89-68/TP-
89-701 Approval included the design revision which ended the Pilot Drive roadway at
the turnaround rather than at the Sisters Airport runway. The map attached to the CU-
89-68/TP-89-701 Approval shows a turnaround at the end of Pilot Drive and a strip of
common area between the turnaround and the Sisters Airport runway. Based upon
representations by the Applicant's Attorney, development of the EAE Cluster
Development started shortly after the CU-89-68/TP-89-701 Approval. Applicant's
Attorney suggested that the paved taxiway, in the area between the private road
turnaround and the Sisters Airport, was partially paved shortly after the CU-89-68/TP-
89-701 Approval. There is no evidence in the record that Applicant recorded in public
' The Sisters Airport was privately owned at the time of the Goodsell application for approval of the 12 -lot Cluster
Subdivision. The Sisters Airport has been sold one or more times since 1989.
Z A copy of the Hearings Officer Fritz' Findings and Decision, dated August 8, 1989, is attached to the application for
Declaratory Ruling (Exhibit 1 pages 1 through and including 12),
File: 247 -18 -000138 -DR
records or otherwise memorialized that a paved taxiway lawfully runs between the
turnaround and the Sisters Airport. There is no evidence in the record that the CU-89-
68/TP-89-701 Approval expressly approved a paved taxiway in the common area/open
space lot section running from the private road turnaround to the Sisters Airport.
More recently a code complaint was filed alleging the EAE Cluster Development was in
violation of the Deschutes County Code (see Notice of Violation and Proposed Civil
Penalty - attached to Applicant's Argument in Support of Request for Declaratory
Ruling, Exhibit 10). One alleged code violation involved the construction, by the EAE
Cluster Development homeowner's association ("EAE HOA" — the Applicant in this
case), of a "paved runway runout." This violation was represented by Planning Staff
and Applicant as having been corrected by removal of the "paved runway runout." A
second code violation related to a "nuisance." The "nuisance" violation was based upon
the alleged violation, by Applicant, of open space code requirements related to the
construction of the "paved runway runout." The Hearings Officer believes the second
violation has been corrected by the removal of the "paved runway runout." The third
alleged violation also alleges the construction of a paved taxiway within the EAE Cluster
Development common area constituted a nuisance. This alleged violation ultimately
resulted in Applicant filing for a Declaratory Ruling to determine if the paved taxiway
violated open space requirements.
Applicant, at the Hearing, was represented by Attorney J Christian Malone ("Applicant's
Attorney"). The primary opponent (Sisters Runway Inc. and Sisters Airport Property
LLC) to this Application, in this case, was represented by Attorney Liz Opponent's
Attorney ("Opponent's Attorney"). Deschutes County was represented by Senior
Transportation Planner Peter Russell ("Staff Planner"). Other persons appeared at the
Hearing and/or submitted documents into the evidentiary record.
B. PROCEDURAL ISSUE: Was new evidence included in Applicant's Final
Argument?
Applicant's Attorney submitted a document, dated June 18, 2018, titled Final Argument
in Support of Request for Declaratory Ruling ("Final Argument"). Opponent's Attorney,
submitted a document, dated June 27, 2018, titled Objection to Applicant's Final
Argument Containing New Evidence ("Objection to New Evidence").
Opponent's Attorney, in the Objection to New Evidence, alleged that the Final Argument
contained "new evidence" as that phrase is described in ORS 197.763 (6)(e).
Opponent's Attorney asserted, in the Objection to New Evidence, that ORS 197.763
(6)(e) states, in relevant part, the following:
"... Unless waived by the applicant, the local government shall allow the applicant at
least seven days after the record is closed to all other parties to submit final written
arguments in support of the application. The applicant's final submittal shall be
considered part of the record, but shall not include any new evidence."
(Emphasis added by the Hearings Officer)
File: 247 -18 -000138 -DR
ORS 197.763 (9) defines "evidence" and "argument" as follows:
"(a) 'Argument' means assertions and analysis regarding the satisfaction or violation
of legal standards or policy believed relevant by the proponent to a decision.
"Argument" does not include facts.
(b)'Evidence' means facts, documents, data or other information offered to
demonstrate compliance or noncompliance with the standards believed by the
proponent to be relevant to the decision."
Opponent's Attorney, in the Objection to New Evidence document, specified the
following items found in the Final Argument constitute "new evidence," as that concept
is set forth in QRS 197.763 (6)(e) included the following:
1. "Improvement for recreational uses in a destination resort is allowed as open
space.
2. Paved areas in destination resorts are allowed as open space.
3. The 65% open space requirement for cluster developments is analogous to
the 50% open space requirement for destination resorts.
4. All of these facts cited to Oregon Revised Statutes Chapter 197.
5. DCC 18.133 Ch. 18.113 governing destination resorts is cited as analogous
as well
6. Oregon Administrative Rules are entered into the record as factual evidence
that improved spaces are allowed in other types of 'open space' and suggests
this fact should be considered in the instant case."
The Hearings Officer finds that the phrase "new evidence," as referenced in ORS
197.763(6)(e) is not defined. The Hearings Officer finds that the term "evidence" is
defined in ORS 197.763 (9). The Hearings Officer finds "new evidence" means "facts,
documents, data or other information offered to demonstrate compliance or
noncompliance with the standards believed by the proponent to be relevant to the
decision" that had not been submitted into the evidentiary record of the case prior to the
submission of an applicant's statutory of final argument provided in ORS 197.763 (6)
(e). In other words, if facts, documents, data or other information had not been placed
in the public record/file during the application, staff review, public hearing or open
evidentiary record period, then the facts, documents, data or other information included
in applicant's final argument would be prohibited (considered "new evidence").
The Hearings Officer believes that the ORS 197.763 (9) definition of "argument" is
supportive of the Hearings Officer's definition of "new evidence." In particular,
"argument" relates to the assertions and analysis regarding the satisfaction or violation
of legal standards. Argument, in the view of the Hearings Officer, is applying legal
analysis to facts, documents or other information already in the record.
File: 247 -18 -000138 -DR
In this case it appears that Opponent's Attorney is asserting that codes and regulations
relating to destination resorts and LCDC Goal 5 regulations related to open space
constitute "new evidence." The Hearings Officer finds that Opponent's Attorney's
argument related to destination resort regulations is not persuasive. The record
contains a May 29, 2018 letter from J. Kenneth Katzaroff ("Katzaroff Letter"). The
Katzaroff Letter contains the following statement:
"Lastly, this provision is regularly relied upon by the county and development parties,
such as destination resorts, to allow development in areas that would otherwise be
left natural..."
The Hearings Officer finds at least one reference was made to destination resort
regulations prior to the submission of the Final Argument. Because destination resort
regulations had been discussed, albeit briefly, in a document that was timely submitted
into the evidentiary record, destination resort comments by Applicant in the Final
Argument do not constitute "new evidence."
The Hearings Officer did not find any specific reference to OAR 660-023-0220
(Procedures and requirements for complying with Goal 5 — Open Space) in the record.
However, the Hearings Officer finds numerous references, in the record, to Oregon
State statutes and regulations. These references were made to either support various
interpretations of DCC 18.04.030 (Open Space). The Hearings Officer considers the
reference to OAR 660-023-0220 to be just one more attempt to interpret the meaning of
open space as used in the Deschutes County Code and CU-89-68/TP-89-701 Approval;
the most critical issue presented in this case.
The Hearings Officer, in conclusion, finds references to destination resort
codes/regulations and LCDC Goal 5 regulations, is not "new evidence." The Hearings
Officer finds that reference to these sections of code/regulations are better
characterized as "argument."
The Hearings Officer finds, based upon the above, that the record in this case should
not be re -opened and the information contained in the Final Argument should not be
rejected.
C. PROCEDURAL ISSUE: Availability of the Declaratory Ruling Process.
The Applicant, in this case, seeks a "declaratory ruling that the paved taxiway does not
violate 'open space' requirement" Land Use Application submitted to the Deschutes
County Community Development Department on February 8, 2018 (the "Land Use
Application"). The availability of the declaratory ruling process is set forth in DCC 22.40,
The Hearings Officer finds that it is necessary to determine whether or not the
Application, in this case, was properly submitted under DCC 22.40. The following
represent findings related to the appropriateness of the Declaratory Ruling Process in
this case.
File: 247 -18 -000138 -DR
22.40.010. Availability of Declaratory Ruling.
A. Subject to the other provisions of DCC 22.40.010, there shall be available
for the County's comprehensive plans, zoning ordinances, the subdivision and
partition ordinance and DCC Title 22 a process for:
1. Interpreting a provision of a comprehensive plan or ordinance
(and other documents incorporated by reference) in which there is
doubt or a dispute as to its meaning or application;
2. interpreting a provision or limitation in a land use permit issued by
the County or quasijudicial plan amendment or zone change (except
those quasi-judicial land use actions involving a property that has
since been annexed into a city) in which there is doubt or a dispute
as to its meaning or application;
FINDING: Applicant's Attorney and the Staff Planner both proposed findings for
these sections of DCC 22.40. Staff Report page 3 and Applicant's Argument in Support
of Request for Declaratory Ruling page 4. Opponent's Attorney argued Applicant's
request is not properly addressed using the Declaratory Ruling process. Opponent's
Attorney hearing testimony and Exhibit C (submitted at the Hearing).
The Hearings Officer finds that the argument presented by Applicant's Attorney and the
Staff Planner, with respect to DCC 22.40 A. 1. and A.2,Js persuasive. The findings
below generally reflect the language proposed by the Staff Planner in the Staff Report.
The Hearings Officer finds that the Applicant is requesting a determ ination on whether a
paved taxiway violates the 65% open space requirement, which is a condition of
approval of CU-89-68fTP-89-701. The Hearings Officer finds the land use application at
hand stems from the County receiving a code enforcement complaint regarding the
presence of the paved taxiway. The County identified a declaratory ruling as one option
to determine the matter. The Hearings Officer finds, as stated by Applicant's Attorney,
that there is a "live fact -specific controversy" on this issue or whether a paved taxiway
violates the open space requirement.
3. Determining whether an approval has been initiated or considering
the revocation of a previously issued land use permit, quasi-judicial
plan amendment or zone change;
FINDING: The EAE Cluster Development lots have all been permitted and developed
and the materials submitted by Applicant's Attorney indicated the paved taxiway has
been in repeated use since its March 1991 construction. The initiation of the use is not
in dispute.
4. Determining the validity and scope of a nonconforming use;
FINDING: Applicant's Attorney argues the paved taxiway is a permitted use and does
not raise the issue of nonconformance.
File: 247 -18 -000138 -DR 7
5. Determination of other similar status situations under a
comprehensive plan, zoning ordinance or land division ordinance
that do not constitute the approval or denial of an application for a
permit; and
FINDING: The Staff Planner noted that while the County has numerous private
airstrips, they typically serve only one property and predominantly are located in the
Exclusive Farm Use (EFU) zone. The Staff Planner noted that he was aware of only one
other cluster subdivision with a paved taxiway in the RR -10 zone. That 5 -lot cluster
subdivision, Hawksflight Airpark, lies to the immediate south of EAE. Hawksflight
Airpark, which was approved under CU-06-88/TP-06-975, has a paved taxiway in the
RR -10 zone and a 65% open space requirement. There is not a code enforcement
complaint against the Hawksflight subdivision and thus those properties are not part of
this declaratory ruling.
6. Verifying that a lot of parcel meets the "lot of record" definition in
18.040.030 pursuant to DCC 22.04.040(D). Such a determination or
interpretation shall be known as a "declaratory ruling" and shall be
processed in accordance with DCC 22.40. In all cases, as part of
making a determination or interpretation the Planning Director
(where appropriate) or Hearings Body (where appropriate) shall have
the authority to declare the rights and obligations of persons
affected by the ruling.
FINDING: The common area/open space lot was established and approved under
CU-89-68/TP-89-701 and is thus a legal lot in the Eagle Air Estates Cluster
Development.
B. A declaratory ruling shall be available only in instances involving a fact -
specific controversy and to resolve and determine the particular rights and
obligations of particular parties to the controversy.
Declaratory proceedings shall not be used to grant an advisory opinion.
Declaratory proceedings shall not be used as a substitute for seeking an
amendment of general applicability to a legislative enactment.
FINDING: Applicant's Attorney and the Staff Planner agreed that it is clear that the
determination of whether a paved taxiway violates the EAE requirement for 65% open
space is a fact -specific controversy. The Staff Planner also suggested that an
additional fact -specific controversy exists involving the determination of whether a
paved taxiway is allowed in the RR -10 zone.
The Hearings Officer finds determining whether or not a paved taxiway violates the
open space requirements of the EAE subdivision is a fact -specific controversy. The
Hearings Officer finds the Staff Planner's suggestion that determining whether a paved
File: 247 -18 -000138 -DR
taxiway is allowed in the RR -10 zone is outside the scope of the Hearings Officer
jurisdiction in this case. The Hearings Officer finds the Applicant was clear and concise
in its Land Use Application statement setting forth its request: "Declaratory ruling that
the paved taxiway does not violate "open space" requirement.
C. Declaratory rulings shall not be used as a substitute for an appeal of a
decision in a land use action or for a modification of an approval. In the
case of a ruling on a land use action a declaratory ruling shall not be
available until six months after a decision in the land use action is final.
FINDING: The appeal period for the subject property has been expired for nearly
three decades. Opponent's Attorney argued that any decision in this case, allowing a
paved taxiway in an open space zone, would properly be characterized as a
modification of the approval.
The Hearings Officer disagrees with Opponent's Attorney's modification of approval
argument. The Hearings Officer finds the focus of Applicant's declaratory ruling issue is
to interpret the open space condition of the original EAE approval. The focus of the
Hearings Officer, in this case, will be to carefully avoid modification of the original EAE
cluster development approval.
D. The Planning Director may refuse to accept and the Hearings Officer
may deny an application for a declaratory ruling if.•
1. The Planning Director or Hearings Officer determines that the
question presented can be decided in conjunction with approving or
denying a pending land use action application or if in the Planning
Director or Hearings Officer's judgment the requested determination
should be made as part of a decision on an application for a quasi-
judicial plan amendment or zone change or a land use permit not yet
filed; or
2. The Planning Director or Hearings Officer determines that there is
an enforcement case pending in district or circuit court in which the
same issue necessarily will be decided as to the applicant and the
applicant failed to file the request for a declaratory ruling within two
weeks after being cited or served with a complaint.
The Planning Director or Hearings Officer's determination to not
accept or deny an application under DCC 22.40.010 shall be the
County's final decision.
FINDING: There is neither a land use application nor an enforcement case pending in
district or civil court.
22.40.020. Persons Who May Apply.
A. DCC 22.08.010(B) notwithstanding, the following persons may initiate a
declaratory ruling under DCC 22.40:
File: 247 -18 -000138 -DR 9
1. The owner of a property requesting a declaratory ruling relating to
the use of the owner's property;
2. In cases where the request is to interpret a previously issued
quasi-judicial plan amendment, zone change or land use permit, the
holder of the permit; or
3. In all cases arising under DCC 22.40.010, the Planning Director.
No other person shall be entitled to initiate a declaratory ruling.
FINDING: The Applicant is the owner of the Subject Property. This criterion is met.
B. A request for a declaratory ruling shall be initiated by filing an
application with the planning division and, except for applications initiated
by the Planning Director, shall be accompanied by such fees as have been
set by the Planning Division. Each application for a declaratory ruling shag
include the precise question on which a ruling is sought. The application
shall set forth whatever facts are relevant and necessary for making the
determination and such other information as may be required by the
Planning Division.
FINDING: The Applicant filed the necessary declaratory ruling application and paid the
required fee. The Hearings Officer finds the question posed by the Applicant is whether
a paved runway violates the 65% open space requirement found in the approval of CU-
89-68ITP-89-701. The Hearings Officer finds this criterion is met.
22.40.030. Procedures.
Except as set forth in DCC 22.40 or in applicable provisions of a zoning
ordinance, the procedures for making declaratory rulings shall be the same as set
forth in DCC Title 22 for land use actions. Where the Planning Division is the
applicant, the Planning Division shall bear the same burden that applicants
generally bear in pursuing a land use action.
FINDING: The declaratory ruling application is being processed according to Title 22.
Prior public notice was sent to adjoining properties in accordance with Title 22 and the
date of the hearing was published in the Bend Bulletin newspaper. The decision will be
noticed and sent to all required parties. This criterion will be met.
22.40.040. Effect of Declaratory Ruling.
A. A declaratory ruling shall be conclusive on the subject of the ruling and
bind the parties thereto as to the determination made.
B. DCC 22.28.040 notwithstanding, and except as specifically allowed
therein, parties to a declaratory ruling shall not be entitled to reapply for a
declaratory ruling on the same question.
C. Except when a declaratory ruling is made by the Board of County
Commissioners, the ruling shall not constitute a policy of Deschutes
County.
File: 247 -18 -000138 -DR 10
FINDING: The declaratory ruling decision will be conclusive on the subject of the
issue whether a paved taxiway violates the 65% open space requirement of CU-89-
68(TP-89-701.
22.40.050. Interpretation.
Interpretations made under DCC 22.40 shall not have the effect of amending the
interpreted language. Interpretation shall be made only of language that is
ambiguous either on its face or in its application. Any interpretation of a
provision of the comprehensive plan or other land use ordinance shall consider
applicable provisions of the comprehensive plan and the purpose and intent of
the ordinance as applied to the particular section in question.
FINDING: Opponent's Attorney, in her hearing testimony (see also Exhibit C) argued
that any approval that may be issued in this case would necessarily involve a finding
demonstrating compliance with the Deschutes County comprehensive plan. The
Hearings Officer disagrees with Opponent's Attorney's comprehensive plan argument.
The Hearings Officer finds this case is limited to determining whether or not the CU-89-
68/TP-89-701 approval allowed a paved taxiway within the 65% open space area. The
Hearings Officer finds the comprehensive plan does not need to be interpreted in order
to reach a decision in this declaratory ruling process. The Hearings Officer finds this
criterion is met.
D. PROCEDURAL ISSUE: RELEVANCY OF ISSUES RAISED BY CASE
PARTICIPANTS
The Staff Planner and a number of persons identified as opponents to Application
Declaratory Ruling request raised a number of issues that may or may not be relevant
to the decision in this case.
The Hearings Officer finds that Applicant, in its Land Use Application, established the
issue to be addressed in this Declaratory Ruling process. Applicant stated, in the Land
Use Application, that it requested a "declaratory ruling that the paved taxiway does not
violate `open space' requirement." The Hearings Officer finds consideration may be
given to "other issues" only if those issues are directly related to the question presented
by Applicant; "does the paved taxiway violate open space requirement?".
The Staff Planner, in the Staff Report and a May 2, 2018 Memorandum stated "staff
looks to the hearings officer to determine" a number of issues. Below, the Hearings
Officer responds to each of the Staff Planner issues:
Is the Paved Taxiway allowed in Rural Residential Zone (RR -10)?
Hearings Officer Response: The Hearings Officer finds this question is beyond the
scope of the issue raised by Applicant in its Land Use Application. While answering this
question may ultimately be important or necessary to the County, Applicant and
File: 247 -18 -000138 -DR 11
opponents, the Applicant did not seek a declaratory ruling from the Hearings Officer as
to whether a paved taxiway is allowed in the RR -10 zone. The Hearings Officer did not
address this issue in this decision.
Is the Paved Taxiway allowed in open space area?
a. What is the appropriate definition and application of the Code
phrase - "open space"?
b. Does paved taxiway, per code definition, "enhance recreation
opportunities"?
c. Does code term "development" include a paved taxiway?
(8.050 (16)(B)(1) ... does limitation on "human activities" result in
the paved taxiway being considered "development?"
Hearings Officer Response: The Hearings Officer finds the above -stated Staff
Planner raised questions to be directly related to Applicant's issue. These questions
are addressed in the findings below.
Does a Paved Taxiway cause EAE to violate 65% open space requirement?
Hearings Officer Response: The Hearings Officer finds the above -stated Staff
Planner raised question is directly related to Applicant's issue. This question is
addressed in the findings below.
If the Paved Taxiway does not appear on the plat, does that affect the
determination of open space?
Hearings Officer Response: The Hearings Officer finds no evidence in the record, in
particular the CU-89-68/TP-89-701 Approval, referencing a paved taxiway. The
Hearings Officer, is not allowed, in the Declaratory Ruling process, to modify the CU-89-
68/TP-89-701 Approval. The Hearings Officer does not find this question relevant to
determining whether a paved taxiway violates open space requirements. The Hearings
Officer did not address this issue in this decision.
If there is no legal access to the Sisters Eagle Airport, is the paved area still
a taxiway?
Hearings Officer Response: The Staff Planner and Opponent's Attorney suggested
that the Applicant HOA, or individual property owners, do not have legal access to the
Sisters Airport from the EAE Cluster Development. Applicant's Attorney submitted
documents suggesting the EAE HOA (or individual EAE Cluster Development owners)
does have a right of access to the Sisters Airport. The Hearings Officer finds the
resolution of the issue raised by Applicant (does the paved taxiway violate open space
requirement?) is not dependent upon whether there is legal access to the Sisters
File: 247 -18 -000138 -DR 12
Airport. The Hearings Officer appreciates the importance of legal access, by EAE HOA
and individual property owners, to the Sisters Airport. However, a determination of the
existence, or lack thereof, of legal access is not relevant to answering the sole issue
before the Hearings Officer in this Declaratory Ruling case.
Opponent's Attorney raised a number of issues during testimony at the Hearing or in
written submissions of documents into the evidentiary record of this case. The Hearings
Officer summarizes those issues below.
Safety— allowing a paved taxiway at the proposed location would create a
safety risk to aircraft using the Sisters Airport.
Hearings Officers Response. The Hearings Officer finds the safety issues raised by
Opponent's Attorney are not relevant to answering Applicant's Declaratory Ruling issue
(does a paved taxiway violate open space requirements?) The Hearings Officer did not
address the safety issue in this decision.
Flooding Risk — opponents assert the paved taxiway creates a safety risk.
Hearings Officer Response. The Hearings Officer finds flooding risks that maybe
created by the paved taxiway is not relevant to answering Applicant's Declaratory
Ruling issue (does a paved taxiway violate open space requirements?). The Hearings
Officer did not address the flooding risk issue in this decision.
Setbacks — opponents assert that various setback requirements are not
met.
Hearings Officer Response. The Hearings Officer finds that violation, or not, of
County setback requirements by one or more EAE Cluster Development property owner
is not relevant to answering Applicant's Declaratory Ruling issue (does a paved taxiway
violate open space requirements?). The Hearings Officer did not address the setback
violation issue in this decision.
E. SUBSTANTIVE FINDINGS; DOES A PAVED TAXIWAY VIOLATE OPEN SPACE
REQUIREMENTS?
Applicant's Attorney, in the Land Use Application, states that the Applicant is requesting
a Hearings Officer decision that answers just one question; Does a "paved taxiway
violate `open space' requirement."
To adequately respond to Applicant's request the Hearings Officer must consider the
approval of the EAE Cluster Development ("CU-89-68/TP-89-701 Approval") and
laws/regulations relevant to the approval of the EAA cluster subdivision. While perhaps
repetitious the Hearings Officer finds it important to remind the reader of this decision
that the Hearings Officer's task is to interpret, not modify, language contained in the
File: 247 -18 -000138 -DR 13
EAE Cluster Development Approval in the context of relevant laws/regulations in place
at the time of the EAE Cluster Development Approval.
1. Key sections of the CU-89-68/TP-89-701 Approval
and Key Sections of Underlying Deschutes County Code.
Applicant's Attorney submitted, into the record of this case, a copy of the Findings and
Decision for CU-89-68/TP-89-701 (Applicant's Land Use Application Exhibit 1). This
decision was issued by Hearings Officer Fitch. In a preliminary finding for CU-89-68/TP-
89-701 the Hearings Officer Fitch noted the following:
"The applicant has proposed a 12 lot Cluster Development called Eagle Air Estates.
Access to the lots would be off of a private road leading from Camp Polk Road. The
private road, as proposed, would also connect to the northern end of the Sisters
Airstrip. The 12 lot development is designed to be an airpark subdivision, where lot
owners could taxi their personal planes out onto the private road and then to the
airstrip."
Hearings Officer Fitch also noted, in his findings for CU-89-68/TP-89-701, that:
"At the hearing on August 1, 1989, the applicant submitted a revised plan which
addressed many of the concerns that have been addressed by the Planning
Department and others. The applicant and the Planning Department and others
recommended approval based upon the revised plan."
Hearings Officer Fitch, in the Conclusionary Findings, paragraph 4, stated:
"Cluster and planned developments shall maintain a minimum of 65% of the land in
open space, timber or agricultural uses compatible with the surrounding area and
the development area. The open space of the development may be platted as a
separate parcel or in common ownership of some or all of the clustered unit;
however, open area shall not be subject to development unless the whole
development is brought inside an urban growth boundary. Also service connections
shall be a minimum length necessary and underground where feasible. Roads shall
meet County standards, to be dedicated to the public and may be accepted in the
County Road System by the County for maintenance."
Hearings Officer Fitch, in the Conclusionary Findings related to "Conformance with
Section 8.050 (6) of PL -15", stated in paragraph B.1.A.(1) page 5 of 12 of Applicant's
Exhibit 1) the following:
"The applicants proposal is unique and would certainly provide an opportunity for
individuals to live in a rural setting and utilize their private planes all in one location."
The Hearings Officer also stated, in paragraph 13.1.6.(2), (page 6 of 12 of Exhibit 1) that
"The open space areas are proposed to remain natural and not put toward any
development."
File: 247 -18 -000138 -DR 14
This Hearings Officer takes note of the Tentative Plan (page 10 of 12, Exhibit 1) and
Eagle — Air Estates recorded plat (page 12 of 12, Exhibit 1) showing 12 lots and the
boundary of "open space."
The Hearings Officer finds the following represents an accurate representation of the
definition of Open Space that would have been applied to the application for the EAE
cluster subdivision.
"PL -15 section 1.030 (80) Open Space. Land used for agricultural or forest uses,
and any land area that would, if preserved and continued in its present use conserve
and enhance natural or scenic resources; protect air, streams, or water supply;
promote conservation of soils, wetlands, beaches, or marshes; conserve landscaped
areas such as public or private golf courses, that reduce pollution and enhance the
value of abutting or neighboring parks, forests, wildlife preserves, nature
reservations or other open spaces; enhance recreational opportunities; preserve
historic, geological and archeological sites; promote orderly urban development; and
minimize conflicts between farm and non-farm uses."
Finally, the Hearings Officer considered a portion of PI -15, modified by Board Ord. 84-
015, Section 8.050, Specific Use Standards (16) Cluster Development, as set forth
below:
"(B) The conditional use shall not be granted unless the following findings are made:
(1) Human activities, including all development and alterations of the natural
landscape, will be limited to 35 percent of the land and 65 percent will be kept in
open space uses...
(2) Uses permitted in the open space area may include the management of
natural resources, trail systems or other outdoor uses that are consistent with the
character of the natural landscape...
(7) The open space of the proposed development may be platted as a separate
parcel or in common ownership of some or all of the clustered units, however, the
open area shall not be subject to development unless the whole development is
brought inside an urban growth boundary."
2. Scope of Review
Applicant's Attorney noted, in the Final Argument, that the County and opponents to the
application "have attempted to expand the scope of the limited, precise determination
that the hearings officer must make. The Hearings Officer agrees with Applicant's
statement that there have been a number of issues raised in this proceeding that are
not directly related to the single issue presented in Applicant's request for a Declaratory
Ruling. Once the Hearings Officer determined that the Declaratory Ruling process was
an appropriate avenue to address the "taxiway in the open space" issue then other,
File: 247 -18 -000138 -DR 15
unrelated issues should not be considered. See Findings for RELEVANCY OF ISSUES
RAISED BY CASE PARTICIPANTS.
Despite Applicant's Attorney's attempt to restrict the Hearings Officer's consideration, in
this case, to answering the single question of whether or not a paved taxiway violates
the open space requirement the Hearings Officer finds Applicant's Attorney also
suggested that the paved taxiway, within the EAE Cluster Development, was not
located within the open space (or common area) as approved. The Hearings Officer
finds the Applicant's Attorney's statement of the Declaratory Ruling issue did not include
a request for a confirmation that the paved taxiway was not located within in designated
open space. For that reason alone the Hearings Officer need not consider Applicant's
suggestion that the paved taxiway is not within an open space area.
The Hearings Officer also finds that the EAE Cluster Development, as originally
proposed, did include a paved roadway connecting Camp Polk Road to the Sisters
Airpark. However, as noted above in the CU-89-68/TP-89-701 Approval the application
was modified and thereafter approved with the paved private roadway ending at a
turnaround and not at the Sisters Airpark. The revised plat shows the location of the
current paved taxiway to be located within land designated as common area and/or
open space. The Hearings Officer finds the paved taxiway is not located within a
private roadway ending at the turnaround; the Hearings Officer finds the paved taxiway
is located within land designated by the plat as common area and/or open space.
3. Overview of County, Applicant and Opponent Arguments.
The primary argument presented by Applicant's Attorney is that a paved taxiway, in the
context of the EAE airpark cluster subdivision, is open space pursuant to PL -15, Section
1.030, Definitions (80). Specifically, Applicant's Attorney argues that the paved taxiway,
located in an air park development, is land that enhances recreational opportunities and
therefore meets the requirements of open space as set forth in PL -15 Section 1.030
(80).
The Staff Planner and Opponent's Attorney (representing the principal opponent)
suggest that open space may only include land left in a natural condition.
The Hearings Officer intends to answer the question of whether or not a paved taxiway
violates open space requirements in a two-step process. The first step involves a
review the CU-89-68/TP-89-701 Approval document. There are references to open
space in the CU-89-68/TP-89-701 Approval document the Hearings Officer needs to
determine if those references are determinative of the issue (does the paved taxiway
violate open space requirements) The second step involves a review of the definition
of open space (PL -15 Section 1.030 (80)) and specific use standards applicable to
Cluster Developments (PL -15, modified by Board Ord. 84-015, Section 8.050 (16).
File: 247 -18 -000138 -DR 16
4 CU-89-68/TP-89-701 Approval Document (First Step)
The CU-89-68/TP-89-701 Approval document, issued by Hearings Officer Fitch on
August 8, 1989, clearly characterized the EAE Cluster Development proposal as one
where "lot owners could taxi their personal planes out onto the private road and then to
the airstrip." The Hearings Officer finds it is clear that the CU-89-68/TP-89-701
approval document anticipated airplanes traveling from the 12 Cluster Development lots
to the Sisters Airpark (Findings of Fact, paragraph 3).
The CU-89-68/TP-89-701 approval noted that Hearings Officer Fitch approved a
"revised plan" and not the original plan. The Hearings Officer believes, based upon
comments by the Staff Planner and Applicant's Attorney in the Argument in Support of
Request for Declaratory Ruling (pages 2 and 3 of 12) the original plan for the EAE
Cluster Development was to have a private roadway run from Camp Polk Road all of
the way to the edge of the Sisters Airpark. The Hearings Officer also finds that
concerns were expressed about the private roadway running all of the way to the
Sisters Airpark because it created the possibility of automobiles entering, unimpeded,
upon the Sisters Airpark runway; an obvious safety concern. The Hearings Officer
believes the "revised plan" referenced by Hearings Officer Fitch in the CU-89-68/TP-89-
701Aapproval, included the private road being terminated at a turnaround and the
section between the turnaround and Sisters Airport was designated as common
area/open space.
The Hearings Officer finds, based upon the best evidence in the record, that the area
between the turnaround and the Sisters Airpark is not part of the private roadway but
rather is part of the common area/open space within the EAE Cluster Development.
The Hearings Officer finds the CU-89-68/TP-89-701 Approval required 65% of the land,
within the EAE Cluster Development, to be maintained as open space, timber or
agricultural uses compatible with the surrounding area and the development area
(Conclusionary Findings, paragraph 4). This finding also stated that "open space shall
not be subject to development unless the whole development is brought inside an urban
growth boundary."
Finally, the CU-89-68/TP-89-701 Approval states "the open space areas are proposed
to remain natural and not put toward any development."
Applicant's Attorney argued that the paved taxiway located within the common
area/open space is not development. The Hearings Officer reviewed the record and
found no relevant definition of the word "development" to be applied to the CU-89-
68/TP-89-701 approval language quoted above. The Hearings Officer finds
development, as that term is used in the CU-89-68/TP-89-701 Approval, refers to
activities such as constructing residential structures, outbuildings, utility lines and
roadways. The inquiry, in this section of the findings, is whether or not laying asphalt
pavement on the ground, to create a paved taxiway, is development. The Hearings
Officer finds laying asphalt pavement on the ground (or any other material used to
File: 247 -18 -000138 -DR 17
create a hard surface to allow vehicles/aircraft to travel over) is analogous to laying
pavement for a public or private road. The Hearings Officer finds the paved taxiway is
development.
The Hearings Officer finds CU-89-68/TP-89-701 Approval language that the open space
areas are proposed to remain natural is important in this case. The Hearings Officer
finds paving the common area for a taxiway is contrary to the approval language
requiring the open space land to remain natural.
The Hearings Officer finds, as additional support for this section, the findings set forth
below for PL -15 (16) and PL -15 modified by Board Ord. 840015. In particular, the
Hearings Officer notes the language in PL -15 Section 8.050 (16) states that that "human
activities, including all development and alternations of the natural landscape, will be
limited to 35 percent of the land and 65 percent will be kept in open spaces." The
Hearings Officer finds laying pavement for a taxiway is a human activity and
development that must be located in the 35% (non -open space) area.
The Hearings Officer finds that allowing the paved taxiway within the EAE Cluster
Development common area/open space lot would be a modification of the CU-89-
68/TP-89-701 Approval because the CU-89-681TP-89-701 Approval clearly prohibits
development within the common area/open space land.
5. PL -15 Section 1.030, (21) and PL -15 Section 1.030 (80) and PL -15
Section 8.050 (16) modified by Board Ord. 84-105
PL -15 Section 8.050 (16), as quoted above, was applicable to the 1989 EAE Cluster
Development application and the CU-89-68/TP-89-701 Approval. The Hearings Officer
finds PL -15 Section 8.050 (16) (B) clearly states that an approval of a conditional use
application for a Cluster Development cannot be granted unless certain findings are
made. PL -15 Section 8.050 (16) (B) (1) states that a finding must be made, to approve
a Cluster Development application, showing that "human activities, including all
development and alternations of the natural landscape, will be limited to 35 percent of
the land and 65 percent will be kept in open spaces." The Hearings Officer finds this
section clearly and unequivocally provides that human activity (development and
alterations of the landscape) can only occur on land not designated as open space.
Restated, the Hearings Officer finds that PL -15 Section 8.050 (16) (B) (1) prohibits
human activity, such as development or alterations of the landscape, on land
designated as open space within a Cluster Development.
PL -15 Section 8.050 (16) (B) (2) states that "uses permitted in the open space area may
include the management of natural resources, trails systems or other outdoor uses that
are consistent with the character of the natural landscape..." The Hearings Officer finds
that even if it were reasonable to characterize the paved taxiway as a "trail system"
(which the Hearings Officer finds unreasonable) the paving of a taxiway is not
consistent with the natural landscape. The Hearings Officer finds PL -15 Section 8.050
File: 247 -18 -000138 -DR 18
(16) (B) (2) does not allow a paved taxiway on land designated open space in a Cluster
Development.
PL -15 Section 8.050 (16) (B) (7) states, in part, that "the open area shall not be subject
to development unless the whole development is brought inside an urban growth
boundary." The Hearings Officer finds paving a taxiway is development as that term is
used PL -15 Section 8.050 (16) (B) (7). The Hearings Officer finds no evidence in the
record that the EAE Cluster Development has been brought inside an urban growth
boundary. The Hearings Officer finds PL -15 Section 8.050 (16) (B) (1), (2) and (7)
would not allow a paved taxiway within open space land at the EAE Cluster
Development.
6. PL -15 Section 1.030 (80)
PL -15 Section 1.030 (80) contains the definition of open space, in the context of a
Cluster Development, at the time of the CU-89-68/TP-89-701 application and approval.
This section of the PL -15 was the subject of a considerable amount of testimony and
comment during the hearing process. Applicant's Attorney argued that a paved taxiway
meets the definitional requirements of PL -15 Section 1.030 (80). Applicant's Attorney
indicated that the paved taxiway has been preserved and continued as a use at the
EAE Cluster Development for "three decades." Applicant's Attorney argued that a
paved taxiway is the "present use" as that phrase is used in PL -15 Section 1.030(80).
Applicant further argues that the owners of lots within the EAE Cluster Development use
the paved taxiway for recreational purposes. Applicant's Attorney argues that flying a
private plane is a recreational activity.
Opponents argued that PL -15 Section 1.030 (80) contains a list of uses that can be
considered open space uses. Opponents argued that the PL -15 Section 1.030 (80) list
must be read conjunctively. The Hearings Officer finds the opposition argument that the
PL -15 Section 1.030 (80) list must be read conjunctively has absolutely no merit. The
Hearings Officer finds that if all of the items on the PL -15 Section 1.030 (80) list had to
be satisfied then it is virtually inconceivable to imagine a use that would meet all of the
definitional requirements.
Opponents also argued that the PL -15 Section 1.030 (80) recreational opportunities
item does not apply to paved roadways or taxiways.
For analytical purposes the Hearings Officer divided DCC 1.030 (80) into two separate,
but dependent, components. The first component is the language "land used for
agricultural or forest uses, and any land area that would, if preserved and continued in
its present use..." The second component considers whether or not "enhance
recreation opportunities" can or should include flying private planes.
Applicant's Attorney argued that the present use, as that phrase is used in PL -15
Section 1.030 (80), is the paved taxiway use. Applicant's Attorney stated, in the Final
Argument (page 4 of 7) the following:
File: 247 -18 -000138 -DR 19
"What the opponents of this application take issue with is the minor alteration made
(nearly 30 years ago) to improve the surface of the taxiway. Apparently, their
position is that the taxiway should consist of the land's natural state, and not
pavement, and that the code's definition of 'open space' textually imposes that
result. The pavement, however is the present use (not the taxiway per se) that
enhances the recreational opportunity (flying an airplane) because it is the very thing
that allows the airplane to taxi its way to the runway and then up into the recreational
opportunities awaiting the pilot and passengers upon lift off."
The Hearings Officer disagrees with the Applicant's Attorney argument that the paved
taxiway is the "present" use as that term is used in PL -15 Section 1.030 (80). The
Hearings Officer reminds all readers that the Declaratory Ruling process cannot be
used to modify an approval; rather it may only be used to interpret provisions/language.
The Hearings Officer finds that the PL -15 Section 1.030 (80) open space definition
would have been applied by Hearings Officer Fitch in his review and analysis of the
EAE Cluster Development proposal to the conditions existing in 1989. The CU-89-
68(fP-89-701 Approval (Findings of Fact, page 2) states the following:
"The subject area is approximately 20 acres in size, and consists of four (4) tax lots.
The topography is generally level and has a vegetative covering of bunch grasses,
bitterbrush, juniper and pine trees. The site is undeveloped and has an old mining
pit..."
The Hearings Officer finds the term "present," as used in PL -15 Section 1.030 (80),
refers to the use of the property at the time of the application by EAE for its Cluster
Development approval. Had Hearings Officer Fitch been asked to determine if a paved
taxiway could be approved within the open space common area tract, as part of the
EAE Cluster Development application, Hearings Officer Fitch would have determined
the "present" use would be described as undeveloped including a vegetative covering of
bunch grasses, bitterbrush, juniper and pine trees; not as a paved taxiway.
The Hearings Officer finds that if the area between the private road turnaround and
Sisters Airport were left undeveloped (with a vegetative covering of bunch grasses,
bitterbrush, juniper and pine trees) that common area would meet the PL -15 Section
1.030 (80) open space requirements. On the other hand, the Hearing Officer finds that
paving the common area between the private road turnaround and the Sisters Airport,
after the date of the CU-89-68/TP-89-701 approval, would not have "preserve[d] and
continue[d]" the "present" use (undeveloped — vegetative covering of bunch grasses,
bitterbrush, juniper and pine trees) and therefore would not meet the PL -15 Section
1.030 (80) open space requirements. The Hearings Officer finds a paved taxiway would
not meet the applicable 1989 definition of open space because a paved taxiway would
not be the preservation and continuation of the 1989 use of the common area/open
space land.
File: 247 -18 -000138 -DR 20
7. Taxiway is a recreational use
Applicant's Attorney argued that use of the common area as a taxiway for private planes
will "enhance recreational opportunities" as that phrase is used in PL -15 Section 1.030
(80). The Hearings Officer finds this argument has merit.
The Hearings Officer finds, based upon the evidence in the record, that owners of
homes/hangers in the EAE Cluster Development are also likely to be owners of private
planes. The Hearings Officer finds that flying a private airplanes can be considered a
recreational activity for private pilots and passengers owning homes/hangers in the EAE
Cluster Development. The Hearings Officer finds, based upon the evidence in the
record, that a taxiway allowing private planes to access the Sisters Airpark can satisfy
the PL -15 Section 1.030 (80) listing requirement "enhance recreation opportunities".
The Hearings Officer finds PL -15 Section 1.030 (80) requirement of "enhance recreation
opportunities" can be satisfied by a paved taxiway or an unpaved taxiway.
8. Outside Aides to Interpretation of meaning of Open Space.
Applicant's Attorney identified a number of outside aides to assist the Hearings Officer
in interpreting the meaning of open space. For example, Applicant's Attorney
referenced a Deschutes County approval of the Miller Tree Farm (247-14-000248 CU,
247 -14 -000249 -TP), destination resort approval criteria and Land Conservation and
Development Commission open space regulations. The Hearings Officer found it
unnecessary to consider any of Applicant's Attorney's outside aides. The Hearings
Officer found that the CU-89-68/TP-89-701 Approval language and the relevant sections
of PL -15 were determinative.
9. Conclusion
As noted in the findings above, the Hearings Officer finds that the CU-89-68/TP-89-701
Approval contains language relevant to the making of a decision as to whether or not a
paved taxiway violates the open space requirements. Specifically, the CU-89-68/TP-89-
701 Approval contains language prohibiting development within the open space
designated lands within the EAE Cluster Development. The Hearings Officer finds
paving a taxiway, on land designated as open space, is development. The Hearings
Officer finds allowing a paved taxiway on land designated open space, at this time and
in this Declaratory Ruling, would be considered a modification of the CU-89-68/TP-89-
701 Approval; the Declaratory Ruling Process prohibits modifying decisions. The
Hearings Officer finds the CU-89-68/TP-89-701 Approval language prohibits a paved
taxiway on the common area/open space located between the turnaround (end of
private road) and the Sisters Airport.
The Hearings Officer also reviewed the definition of open space applicable to the CU-
89-68/TP-89-701 Approval application. The Hearings Officer finds that DCC 1.030 (80)
definition allows for uses in the open space designation so long as the "lands [are] used
for agricultural uses, and any land area that would, if preserved and continued in its
File: 247 -18 -000138 -DR 21
present use... (list of specific uses including "enhance recreation opportunities"). The
Hearings Officer finds that the reference to "present use" refers to the use of the land at
the time of an application or initial review (in this case -- 1989). Applicant's Attorney
argued that the present use is the taxiway or paved taxiway. The Hearings Officer finds
the present use, as of 1989, was best described by Hearings Officer Fitch as having a
,'vegetative covering of bunch grasses, bitterbrush, juniper and pine trees. The site is
undeveloped and has an old mining pit."
The Hearings Officer finds that DCC 1.030 (80) requires the land, to be considered as
open space, be "preserved and continued in its present use." (emphasis added) The
Hearings Officer finds the present use, that had to be "preserved and continued" in
1989, was undeveloped land and not a paved taxiway. The Hearings Officer notes that
an unpaved taxiway might have been considered a "present use" as Hearings Officer
Fitch did describe the EAE Cluster Development as providing airplane access from the
development to the Sisters Airpark. Applicant's Attorney did not request the Hearings
Officer, in this Declaratory Ruling process, to decide if an unpaved taxiway violated
open space requirements; as such the Hearings Officer's observation that an unpaved
taxiway is allowed in open space cannot be considered as binding.
DATED this 25th day of July, 2018.
Hearings Officer, Gregory J Frank
File: 247 -18 -000138 -DR 22
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File: 247 -18 -000138 -DR 23
Mailing Date:
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NOTICE OF HEARINGS OFFICER'S DECISION
The Deschutes County Hearings Officer has approved/denied the land use application(s) described
below:
FILE NUMBER: 247 -18 -000138 -DR
LOCATION: The subject property is the Common Area associated with the Eagle Air
Estates Subdivision and is identified on the County Assessor's Map
No. 14-10-13D, as Tax Lot 99.
OWNER: Eagle Air Estates Homeowners Association
APPLICANT: Same
SUBJECT: Declaratory Ruling to determine that a paved taxiway does not violate
the "open space" requirement of the Eagle Air Estates Subdivision land
use approval (CU-89-68/TP-89-701).
STAFF CONTACT: Peter Russell, Senior Transportation Planner, (541) 383-6718,
peter.russell@deschutes.org
DOCUMENTS: Can be viewed and downloaded from:
www.buildingpermits.oregon.gov and http://dial.deschutes.org
APPLICABLE CRITERIA: The Hearings Officer reviewed this application for compliance against
criteria contained in Chapter 22.40 in Title 22 of the Deschutes County
Code (DCC), the Deschutes County Zoning Ordinance, Public Law 15
(PL -15), Land Use Approval CU-89-68/TP-89-701, as well as against the
procedural requirements of Title 22 of the DCC.
DECISION: The Hearings Officer finds that a taxiway violates the 65% open space requirement
conditions and thus is not an allowed use.
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 $2,665.00 plus
20% of the original application fee(s), and a statement raising any issue relied upon for appeal with
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File: 247 -18 -000138 -DR 24
sufficient specificity to afford the Board of County Commissioners an adequate opportunity to
respond to and resolve each issue.
Copies of the decision, application, all documents and evidence submitted by or on behalf of the
applicant and applicable criteria are available for inspection at no cost. Copies can be purchased
for 25 cents per page.
NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES I -HAT IF
YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER.
247 -18 -000138 -DR
Page 2 of 2
File: 247 -18 -000138 -DR 25
S.E.114 SEC,33 T,14S. R.10E. W,M.
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File: 247 -18 -000138 -DR 26
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File: 247 -18 -000138 -DR 27
Eagle Air Estates Cluster Subdivision, Common Area aka Open Space
Eagle Air Estates Cluster Subdivision, Paved Taxiway
R V EW
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declining Review of Hearings Officer's
Decisions in File No. 247 -18 -000138 -DR
ORDER NO. 2018-058
WHEREAS, Mike Morgan has appealed the Deschutes County Hearings Officer's Decision on
Application 247 -18 -000138 -DR; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners ("Board") discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will not hear on appeal 247-18-000626-A pursuant to Title 22 of the Deschutes
Comity Code and other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, there shall be a refund of the appeal in the amount of $2,416.32.
Dated this of 52018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGE I OF 1- ORDER No. 2018-058
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
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 August 15, 2018
DATE: August 8, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
Consideration of Board Order No. 2018-055, to Hear an Appeal of a Hearings Officer
Denial of a Site Plan Review for a Church
BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners
is an appeal of the Hearings Officer's decision denying a site plan review for a church and
proposed by Father's House Church. Father's House Church filed a timely appeal of the
Hearings Officer's decision. The Board will consider Order No. 2018-055 and whether to hear
the matter on appeal.
See attached staff memorandum for further background information.
FISCAL IMPLICATIONS: None
ATTENDANCE: Cynthia Smidt, Associate Planner
C01MHAUNITY DEVELOPMENT
MEMORANDUM
DATE: August 8, 2018
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
RE: Appeal of Hearings Officer Decision on a Site Plan for Father's House Church (247-
18 -000062 -SP)
Before the Deschutes County Board of Commissioners (Board) is a timely appeal submitted in
response to a Deschutes County Hearings Officer's (HO) decision denying the applicant's request
for Site Plan review of the proposed church (Attachment 1). An appeal was submitted by the
applicant, Father's House Church/Church of God Cleveland (Father's House).
1. BACKGROUND
Father's House Church submitted a request for a Conditional Use and Site Plan review for a
church'. The 4.28 -acre subject property is located at 21420 Stevens Road and at the intersection
of Stevens Road and Thunder Road (Attachment 2). The Bend Urban Growth Boundary is located
directly south, across Stevens Road. The request includes establishing a 14,560 square foot church
building and converting the existing single-family dwelling to a parsonage house for a member of
the church clergy. The church building will include a sanctuary to accommodate up to 325 seats,
offices, a meeting space, Sunday school classrooms, bathrooms, and storage. The applicant
proposes parking and maneuvering area and designated landscaped areas. The zoning of the
property is Multiple Use Agricultural (MUA-10).
The HO approved the church use through review of the conditional use permit (file no. 247 -18-
000061 -CU) but denied the site plan review (file no. 247 -18 -000062 -SP). The HO denial was based
on the applicant's failure to demonstrate that they made reasonable efforts to propose
development that will relate harmoniously to the natural environment and existing
development, minimizing visual impacts and preserving natural features including views and
topographical features.
' The applicant also requested a Lot of Record Verification, County file no. 247 -18 -000064 -LR. To date, no
issues have been raised regarding this request. The Hearings Officer approved the verification.
II. FATHER'S HOUSE CHURCH APPEAL
The applicant/appellant, Father's House, appeals the HO decision, and describes several
assignments of error in their notice of appeal (Attachment 3). The following summarizes their
concerns (footnotes removed):
1. The Hearings Officer erred in deciding that Father's House Church had not demonstrated
compliance with DCZO 18.124.060(A).
2. The Hearings Officer erred in determining that Father's House Church had not complied with
DCZO 18.124.060(A), as he interpreted it in the following passage: "the applicant had the
burden to demonstrate reasonable efforts to consider alternatives that would better
harmonize its proposal with existing residences in the area, particularly on this relatively
small, flat parcel with no topographical, vegetative or other natural features to soften its
impact. Cf. SP -95-60 (Applicant submitted revised site plan to address this criterion.)"
3. The Hearings Officer incorrectly interpreted DCZO 18.124.060(A) to deny the proposed
Church and his interpretation is contrary to ORS 215.416(8) and LUBA law, as well as ORS
215.427.
4. The Hearings Officer's denial of the proposed Church on the basis of the "harmonious"
standard - DCZO 18.124.060(A) - violates ORS 215.441.
5. DCZO 18.124.060(A) is contrary to RLUIPA. DCZO 18.124.060(A) is contrary to the federal
Religious Land Uses and Institutionalized Persons Act (RLUIPA)....
6. The challenged decision improperly applied DCZO 18.116.030(F)(1) to deny the proposal.
7. The denial of the Church proposal on the basis of DCZO 18.116.030(F)(1) violates ORS
215.441 because it is not a reasonable regulation, as ORS 215.441 requires.
8. The denial of the proposal on the basis of DCZO 18.116.030(F)(1) violates RLUIPA similarly
because it is not a reasonable regulation as RLUIPA requires.
9. The denial of the proposal on the basis of DCZO 18.116.030(F)(1), violates RLUIPA because it
imposes a substantial burden on Father's House Church without demonstrating a compelling
governmental interest furthered by the least restrictive means available.
The applicant/appellant, Father's House, requests a de novo review.
III. POTENTIAL OPPOSITION APPEAL
The appeal date for the HO decision ends on August 13, 2018. Staff anticipates a second appeal
directed at the Conditional Use permit approval, file 247 -18 -000061 -CU. If a second appeal is
submitted, staff will provide a revised Board Order conveying this change at the August 15 Board
work session.
-z-
IV. BOARD OPTIONS
There are two versions of Order No. 2018-055 (Attachment 4). In determining whether to hear an
appeal, the Board may consider only:
1. The record developed before the Hearings Officer;Z
2. The notice of appeal; and
3. Recommendation of staff.'
In addition, if the Board decides to hear the appeal, it may consider providing time limits for public
testimony.
If the Board decides that the Hearings Officer's decision shall be the final decision of the county,
then the Board shall not hear the appeal and the party appealing may continue the appeal as
provided by law. The decision on the land use applications becomes final upon the mailing of the
Board's decision to decline review.
V. STAFF RECOMMENDATION
The HO decision makes an unexpected finding regarding an applicant's obligation to demonstrate
that the church shall relate harmoniously to the natural environment and existing development.
Pursuant to DCC 18.124, staff is obligated to determine if proposed development is harmonious
to the surrounding environment. However, the code does not require an applicant to provide
alternatives analysis (e.g. different building designs, layout, and landscaping) with the proposal.
Therefore, staff reviews the development as proposed. In the Father's House Church decision, the
HO found that the applicant did not demonstrate that they made a reasonable effort in
considering alternative designs for the development in order for it to relate harmoniously to the
surrounding environment. The HO finding could set a precedent by placing additional
responsibility on staff and future applicants to determine what alternatives, if any, make a
proposal harmonious. For this reason, staff recommends the Board hear the appeal either limited
de novo or de novo.
VI. 150 -DAY LAND USE CLOCK
The application was submitted to the Planning Division on January 19, 2018. The Planning Division
deemed the application complete and accepted it for review on February 16, 2018. During the
hearing process, the applicant placed the clock on hold for 69 days. The 150" day on which the
County must take final action on this application is September 24, 20184. Father's House Church
2 The record can be found at: https://dial.deschutes.org/Real/DevelopmentDocs/1 11993
3 DCC 22.32.035(B) and (D)
4 The 150th day falls on Sunday, September 23, 2018. Pursuant to DCC 22.08.070, if time computation ends
on a weekend when County offices are not open for business, it shall be excluded and moved to the next
business day, which is September 24 in this case.
-3-
states that they are willing to extend the land use clock until November 15, 2018 in order to allow
adequate time of any proceedings on appeal before the Board.
Attachments
1, Hearings Officer's decision
2. Map of subject property
3. Father's House Church appeal
4. Draft Orders, No. 2018-055
10
Staff Memorandum
Attachment 1
MITA
Hearings Officer's Decision
HEARINGS OFFICER DECISON
FILE NUMBERS: 247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR
APPLICANT/OWNER: Father's House, Church of God Cleveland
Randy Wills and Jack Miller
61690 Pettigrew Road
Bend, Oregon 97702
PROPOSAL: The applicant requests a conditional use and site plan review to establish
a church in the Multiple Use Agricultural Zone. The applicant also requests
a Lot of Record Verification for the subject property.
STAFF CONTACT: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
APPLICABLE CODE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.04.
Title, Purpose and Definitions
Chapter 18.32.
Multiple Use Agricultural Zone
Chapter 18.128.
Conditional Uses
Chapter 18.124.
Site Plan Review
Chapter 18.116.
Supplementary Provisions
Title 22, Deschutes County Procedures Ordinance
BASIC FINDINGS:
This decision incorporates the staff report, with minor edits except for sections labeled "Hearings
Officer".
A. LOCATION: The property is identified on Deschutes County Assessor's Map No. 18-12-02, as Tax
Lot 1205 and has an assigned address of 21420 Stevens Road, Bend.
B. ZONING: Multiple Use Agricultural (MUA-10).
C. SITE DESCRIPTION: The property is approximately 4.98 acres and rectangular. The site has
relatively level topography and is vegetated primarily with native grasses and shrubs and some
juniper trees. It is developed with a 1967 single-family dwelling and a shed in the eastern region of
the property. An irrigation canal crosses the northern half of the property. Stevens Road is adjacent
to the southern property boundary. Thunder Road, a private access roadway, is adjacent to the
eastern boundary. According to the Flood Insurance Rate Map for Deschutes County and the
National Wetlands Inventory, the subject property is not located in the 100 -year flood plain nor does
it contain wetlands.
E. SURROUNDING LAND USES: The area in the immediate vicinity consists of small farm and rural
and urban residential properties. Rural residential properties are located to the north, east, and west
of the property and are either developed or vacant. Directly south across Stevens Road is a large
parcel under State of Oregon ownership that is currently open space. The western region of the
state-owned parcel together with Stevens Road is located within the Bend Urban Growth Boundary
(UGB) and the eastern region is currently under review for a plan amendment and zone change.'
Approximately 1,400 feet to the west is urban density single-family residential subdivisions such as
Westbrook Village that is within the city limits of Bend. Further to the northwest and east of the
subject property are developed or vacant farm -zoned lands. Adjacent to the south and east property
boundaries are Stevens Road and Thunder Road, respectively. Zoning in the area is a mixture of
Exclusive Farm Use (EFU) and Multiple Use Agricultural and several zoning districts within the City
of Bend such as Public Facility, Residential Standard Density (RS), and Urbanizable Area (UA).
F. PROPOSAL: The applicant is requesting a Conditional Use and Site Plan review to establish a
church on the property. The proposal includes a 14,560 -square foot church building and the use of
the existing dwelling as a parsonage house for a member of the church clergy. The church building
will include a sanctuary to accommodate up to 325 seats, offices, a meeting space, Sunday school
classrooms, bathrooms and storage. The applicant proposes parking and maneuvering area and
designated landscaped areas. The original parking plan showed 118 spaces. A revised preliminary
site plan dated 5/4/18 (Open Record App. Exh. 6) reduced parking to 99 spaces with 4,879 sq. ft. of
landscaping in the parking area. A revised landscape plan dated 5/4/18 also was submitted. The
primary access will be from Stevens Road which will be relocated west, and the former access will
be converted to a pedestrian pathway. The church use will occur primarily on Sunday. Other uses
accessory to the church will occur on Sunday or other days of the week including Sunday school,
youth group, Bible.studies, weddings, and administrative meetings.
Hearings Officer: Concerns were raised about whether the applicant intended to permit operation
of a day care or preschool. The applicant clarified that such operations are not part of this application.
My understanding is that a separate application would be required to expand the use in this manner.
G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and
received the following comments:
1. Bend Fire Department: Comments were submitted by Larry Medina, Deputy Chief/Fire Marshal
on February 14, 2018. Mr. Medina's comments are below.
FIRE APPARATUS ACCESS ROADS:
Approved vehicle access for fire fighting shall be provided to all
construction or demolition sites. Vehicle access shall be provided to within
100 feet of temporary or permanent fire department connections. Vehicle access
shall be provided by either temporary or permanent roads, capable of supporting
vehicle loading under all weather conditions. Vehicle access shall be maintained
until permanent access roads are available. 2014 OFC 3310.1
Approved fire apparatus access roads shall be provided for every facility, building
or portion of a building hereafter constructed or moved into or within the
jurisdiction. The fire apparatus access road shall comply with the
requirements of this section and shall extend to within 150 feet of all
portions of the facility and all portions of the exterior walls of the first story
1 A zone change and comprehensive plan amendment proposal is currently under review by the County through file
numbers 247 -17 -000726 -PA and 247-17-000727-ZC.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 2
of the building as measured by an approved route around the exterior of the
building or facility. 2014 OFC 503. 1.1
Fire apparatus roads shall have an unobstructed width of not less than 20
feet, exclusive of shoulders, except for approved security gates in accordance
with Section 503.6, and an unobstructed vertical clearance of not less than 13
feet 6 inches. Where a fire hydrant is located on a fire apparatus road, the
minimum width shall be 26 feet, exclusive of shoulders. Traffic calming along a
fire apparatus road shall be approved by the fire code official. Approved signs or
other approved notices or markings that include the words NO PARKING -FIRE
LANE shall be provided for fire apparatus roads to prohibit parking on both sides
of fire lanes 20 to 26 feet wide and on one side of fire lanes more than 26 feet to
32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3
Fire apparatus access roads shall be designed and maintained to support
the imposed loads of fire apparatus (60,000 pounds GVVV) and shall be
surfaced (asphalt, concrete or other approved driving surface) as to provide
all weather driving capabilities. Inside and outside turning radius shall be
approved by the fire department. All dead-end turnarounds shall be of an
approved design. Bridges and elevated surfaces shall be constructed in
accordance with AASHTO HB -17. The maximum grade of fire apparatus access
roads shall not exceed 10 percent. Fire apparatus access road gates with electric
gate operators shall be listed in accordance with UL325. Gates intended for
automatic operation shall be designed, constructed and installed to comply with
the requirements of ASTM F 2200. A Knox® Key Switch shall be installed at all
electronic gates. 2014 OFC D102.1, 503.2.4,
FIRE PROTECTION WATER SUPPLIES:
• An approved water supply capable of supplying the required fire flow for
fire protection shall be provided to premises upon which facilities, buildings or
portions of buildings are hereafter constructed or moved into or within the
jurisdiction.
• Fire flow requirements for buildings or portions of buildings shall be determined
by an approved method. Documentation of the available fire flow shall be
provided to the fire code official prior to final approval of the water supply
system.
• Where a portion of the facility or building hereafter constructed or moved into or
within the jurisdiction is more than 400 feet from a hydrant on a fire apparatus
road, as measured by an approved route around the exterior of the facility or
building, on-site fire hydrants and mains shall be provided where required by the
fire code official. For Group R-3 and Group U occupancies the distance
requirement shall 600 feet. For buildings equipped throughout with an approved
automatic sprinkler system installed in accordance with Section 903.3.1.1 or
903.3.3.1.2, the distance requirement shall be 600 feet. Fire hydrants shall be
provided along required fire apparatus roads and adjacent public streets. The
minimum number of fire hydrants shall not be less than that listed in table C105.1
of the 2010 OFC. Existing fire hydrants on public streets are allowed to be
considered as available. Existing fire hydrants on adjacent properties shall not
be considered available unless fire apparatus access roads extend between
properties and easements are established to prevent obstruction of such roads.
The average spacing between fire hydrants shall not exceed that listed in table
C105.1 of the 2010 OFC.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 3
OTHER FIRE SERVICE FEATURES:
New and existing buildings shall have approved address numbers, building
numbers or approved building identification placed in a position that is plainly
legible and visible from the street or road fronting the property. These numbers
shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4
inches high with a minimum stroke width of 0.5 inch. Where access is by means
of a private road and the building cannot be viewed from the public way, a
monument, pole, or other sign or means shall be used to identify the structure.
Address numbers shall be visible under low light conditions and evening hours.
Provide illumination to address numbers to provide visibility under all conditions.
Address signs are available through the Deschutes Rural Fire Protection District
#2. An address sign application can be obtained from the City of Bend Fire
Department website or by calling 541-388-6309 during normal business hours.
A KNOX-BOX® key vault is required for all newly constructed commercial
buildings, facilities or premises to allow for rapid entry for emergency
crews. A KNOX@ Key Switch shall be provided for all electrically operated gates
restricting entry on a fire apparatus access road. A KNOX@ Padlock shall be
provided for all manually operated gates restricting entry on a fire apparatus road
and security gates restricting access to buildings.
2. Deschutes County Building Safety Division: Randy Scheid, Building Safety Director, submitted
the following comments on February 9, 2018.
The Deschutes County Building Safety Division code required Access, Egress, Setbacks,
Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during
the plan review process for any proposed structures and occupancies. All Building Code
required items will be addressed, when a specific structure, occupancy, and type of
construction is proposed and submitted for plan review.
3. Deschutes County Road Department: Cody Smith, County Engineer, submitted the following
comments on February 20, 2018:
I have reviewed the application materials for the above -referenced file numbers,
proposing a church at 21420 Stevens Road, Bend. The subject property is bordered by
Stevens Road to the south. Stevens Road is a County -maintained urban collector and
currently meets the minimum road design standards for a rural collector road given in
DCC 17.48A along the frontage to the subject property. Please note that DCC 17.48A
does not provide a minimum design standard for urban collector roads outside of the
Tumalo, Terrebonne, or La Pine unincorporated communities. Where it abuts the subject
property, Stevens Road is within the Bend Urban Growth Boundary (UGB), making it
subject to the requirements of the "Revised Joint Management Agreement Regarding the
Area Within the Bend Urban Growth Boundary" (Commissioners Journal #DC 2017-423).
Deschutes County Road Department requests that approval of the proposed land uses
be subject to the following conditions:
• Applicant shall meet the requirements for County roads within the Bend UGB in
Section 7 of the "Revised Joint Management Agreement Regarding the Area Within
the Bend Urban Growth Boundary" (Commissioners Journal #DC 2017-423).
• If road improvements are required as a condition of approval based on City of
Bend requirements for roads within the UGB:
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 4
o Applicant shall submit road improvement plans to Road Department for
approval prior to commencement of construction pursuant to DCC
17.40.020, 17.48.060, and 18.124.080.
o Design and construction of road improvements shall be according to City
of Bend standards and applicable sections of DCC 17.48 pursuant to DCC
18.124.090.
Applicant shall obtain a driveway access permit for the proposed access to
Stevens Rd pursuant to DCC 12.28.050, 17.48.210, and 18.124.080.
4. Deschutes County Transportation Planner: On February 14, 2018, Peter Russell, Senior
Transportation Planner submitted the following comments.
I have reviewed the transmittal materials for 247-18-000061-CU/062-SP/063-LR to
develop a 14,560 -square -foot church on an approximately 5 -acre parcel in the Multiple
Use Agricultural (MUA-10) zone at 21420 Stevens Road, aka 18-12-02, Tax Lot 1205.
I agree with the methodology, analysis, conclusions, and recommendations of the
applicant's traffic study, which complies with Deschutes County Code (DCC) at
18.116.310(C).
The applicant should also obtain an access permit from the County to comply with DCC
17.48.210.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate
of $3,937 per p.m. peak hour trip. The Institute of Traffic Engineers (ITE) trip generation
manual indicates a church (LU 560) generates 0.55 p.m. peak hour trips per 1,000 square
feet. The church will generate 8 p.m. peak hour trips (14.560 X 0.55); therefore, the
applicable SDC is $31,496 ($3,937 X 8). The SDC is due prior to issuance of certificate
of occupancy, if a certificate of occupancy is not applicable, then the SDC is due within
60 days of the land use decision becoming final.
5. Deschutes County Property Address Coordinator: The parcel address may need to be adjusted
depending on the final access point from Stevens Road.
6. The following agencies did not respond or had no comments: Avion Water Company, City of
Bend Planning Department, City of Bend Public Works Department, Central Electric Cooperative,
Central Oregon Irrigation District, Deschutes County Assessor, Deschutes County
Environmental Health Division, Deschutes County Environmental Soils Division, Pacific Power
and Light, and Watermaster — District 11.
I. HEARING:
Hearings Officer: A public hearing was conducted on April 24, 2018. 1 provided the statutorily
required notices. I indicated that I had reviewed the materials on file but had received no ex parte
contacts. I did, however, conduct a site visit. I indicated that I drove into the property from Stevens
Road and observed its topography, size, vegetation and immediate vicinity. I drove along Thunder
Road and observed the residences but did not enter any of those properties. There were no
questions or concerns raised regarding the site visit. I indicated that I had no conflicts of interest. I
indicated that I know Anthony Raguine as a Community Development staff member but understood
that he was appearing as a representative of the church, in which he is a congregate. I asked for but
received no procedural or other objections to my proceeding with this matter.
The applicant was represented by Wendie Kellington. William VanVactor appeared as counsel for
Julie Naslund.
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At the end of testimony, the applicant requested to leave the record open as follows, with the
understanding that this tolls the 150 -day decision clock:
May 8, 2018 Submission of new evidence and argument.
May 22, 2018 Submission of evidence and argument responding to evidence
provided during the first open record period.
June 5, 2018 Applicant's final rebuttal (unless waived) but no new evidence.
I noted that all submittals had to be received by County no later than the close of business on the
due date.
On May 18, 1 received an email from Adam Smith, Assistant Legal Counsel indicating that the
applicant had requested that the open record period be reset. My understanding is that Mr.
VanVactor had raised a concern regarding Mr. Raguine using county resources to provide copies of
past hearings officer and Board of County Commissioner land use decisions to Ms. Kellington. (See
below). To address this matter, the parties stipulated to a reset. I issued an order in which I noted
that the applicant had agreed to further extend the 150 -day clock and that the open record period
was re -set as follows:
June 4, 2018 written comments, including new evidence and argument;
June 18, 2018 for rebuttal evidence and arguments in response to written comments received
during the first comment period; and
July 2, 2018 for applicant's final argument (no new evidence).
I indicated that items received during the original comment period need not be resubmitted, and are
included in the record, subject to specific objections, if any.
Apparently, there were some communications between Mr. VanVactor or other opponents and staff
regarding the application of this re -set. I issued an email on May 31 explaining that the material
submitted during the original open record period was to be treated as if it had been submitted at the
hearing for purposes of the new open record period. Anyone could respond to that information during
the new first open record period. There were no objections.
The parties submitted a great deal of material during the new open record period, but I have not
located any specific objections to the submittals.
J. PROCEDURAL CONCERNS
Hearings Officer: The record contains a series of emails regarding whether documents were timely
and fully shared between the attorneys in accordance an agreement they apparently made. I
received no objections regarding this issue. See e.g. Wendie Kellington June 11, 2018 email, Julie
Naslund June 13, 2018 letter.
A June 4, 2018 submittal signed by Julie Naslund and purporting to be on behalf of several other
neighbors expresses "deepening concern around the fairness of this application process." They
allege a "conflict of interest" arising from the "collaboration" of Mr. Raguine with the applicant and
that the applicant derived an "unfair advantage" due to Mr. Raguine's deep knowledge of county
records and procedures." They suggest that I consider whether the process should be allowed to
continue.
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I am aware of nothing supporting a conclusion that the rights of the opponents have been
substantially prejudiced. All documents obtained by Mr. Raguine were shared and the open record
period extended per the stipulation of counsel for the applicant and Ms. Naslund. Mr. Raguine has
submitted no testimony since the hearing. Staff did not make a recommendation on several of the
more contested criteria and has not substantively commented on the application or submittals since
the hearing.
III. FINDINGS AND CONCLUSIONS:
Title 18, Deschutes County Zoning Ordinance
A. CHAPTER 18.04. TITLE, PURPOSE AND DEFINITIONS
1. Section 18.04.030. Definitions.
As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC
18.04.030.
"Lot of Record" means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which
conformed to all zoning and subdivision or partition requirements, if any, in effect on
the date the lot or parcel was created, and which was created by any of the following
means:
1. By partitioning land as defined in ORS 92;
2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County
Surveyor and recorded with the Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to the transaction, containing
a separate legal description of the lot or parcel, and recorded in Deschutes County
if recording of the instrument was required on the date of the conveyance. If such
instrument contains more than one legal description, only one lot of record shall
be recognized unless the legal descriptions describe lots subject to a recorded
subdivision or town plat;
4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes
County Record of Plats; or
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a
remainder lot or parcel.
B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall
be recognized as a lot of record.
C. The following shall not be deemed to be a lot of record:
1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll
change or for the convenience of the assessor.
2. A lot or parcel created by an intervening section or township line or right of way.
3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was
conveyed pursuant to subsection (A)(3) above.
4. A parcel created by the foreclosure of a security interest.
FINDING: The Planning Division has reviewed the information submitted with the application, as
well as County records, and has made a decision that Tax Lot 1205 is one (1) legal lot of record.
Deschutes County adopted its first zoning ordinance (PL -5) on November 1, 1972, which
described minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with
PL -15. The subdivision ordinance of 1970, PL -2, regulated subdivisions less than 10 acres in
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size but did not regulate partitions. The partition ordinance (PL -7) was adopted in 1977, which
described the criteria under which parcels could be partitioned (divided).
Tax Lot 1205 was first conveyed in its current configuration in a Quitclaim Deed dated September
29, 1972 and recorded in Volume 189, Page 495 at the Deschutes County Clerk's Office. At the
time of the deed being recorded, there were no requirements for land partitions nor were there
any used to regulate zoning and minimum lot sizes. Tax lot 1205 is 4.98 acres (216,928.8 square
feet) in size and over 50 feet in width and thus meeting the definition of a lot of record above (at
least 5,000 square feet in area and 50 feet wide). Based on these findings, Deschutes County
recognizes tax lot 1205 as a legal lot of record.
"Church" means an institution that has nonprofit status as a church established with the
Internal Revenue Service.
FINDING: The applicant proposes to establish a church on the subject property. According to
the applicant, Father's House, a subordinate of Church of God Cleveland, has status as a
religious nonprofit organization under 501(c)(3) with the Internal Revenue Service. Staff finds,
and I concur, that the proposed use is a church as defined in DCC 18.04.
B. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE
1. Section 18.32.030. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128.
W. Churches, subject to DCC 18.124 and 18.128.080.
FINDING: The applicant proposes to establish a church on the subject property. As noted
previously, the proposed Father's House Church is a church as defined in DCC 18.04.030 and
thus can be allowed pursuant to applicable approval criteria. Compliance with DCC 18.124, Site
Plan Review, and DCC 18.128, Conditional Uses, is addressed below.
2. Section 18.32.040. Dimensional Standards.
In an MUA Zone, the following dimensional standards shall apply.-
D.
pply.
D. Building height. No building or structure shall be erected or enlarged to exceed 30 feet
in height, except as allowed by DCC 18.120.040.
FINDING: The applicant provided elevation drawings illustrating that the proposed church
building will be approximately 29.8 feet (29 feet, 10 inches), thus meeting the 30 -foot height limit.
Comments submitted on March 8, 2018 by neighboring property owners, Julie Naslund and John
Schaeffer express concern regarding the overall size of the proposed development in
comparison to the surrounding residential development, projecting the proposal will encompass
at least 50 percent of the subject property. As this relates to lot coverage criterion, staff notes
that the MUA-10 Zone does not have a lot coverage requirement unlike the Rural Residential
Zone, which limits coverage to 30 percent of the total lot area (DCC 18.60.060(A)). Concerns
over the overall size impact to the surrounding area are addressed below:
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3. Section 18.32.050._ Yards.
A. The front yard setback from the property line shall be a minimum of 20 feet for property
fronting on a local street right of way, 30 feet from a property line fronting on a
collector right of way, and 80 feet from an arterial right of way unless other provisions
for combining accesses are provided and approved by the County.
FINDING: The subject property is adjacent to Stevens Road and Thunder Road to the south
and east, respectively. Stevens Road is classified as an urban collector road and Thunder Road
is classified as a local access road. The required front yard setback from Stevens Road is 30
feet and 20 feet from Thunder Road. The proposed church building will be setback approximately
95 feet north of Stevens Road and 165 feet west of Thunder Road. The existing single-family
dwelling proposed to be a parsonage has setbacks of approximately 74 feet and 64 feet from
Stevens Road and Thunder Road, respectively. The front yard setbacks for both the proposed
church building and existing dwelling comply with the setback standards of the MUA-10 Zone.
B. Each side yard shall be a minimum of 20 feet. For parcels or lots created before
November 1, 1979, which are one-half acre or less in size, the side yard setback may
be reduced to a minimum of 10 feet. For parcels or lots adjacent to property receiving
special assessment for farm use, the adjacent side yard for a dwelling shall be a
minimum of 100 feet.
FINDING: Based on the shape of the property and the adjacent roadways, staff finds the
northern property boundary is considered the side property line and the western boundary is the
rear property line. The County Code requires minimum yards of 20 feet from side property lines.
The proposed church building will have a side yard setback of approximately 40 feet from the
north property boundary. The single-family dwelling proposed to be a parsonage has an existing
side yard setback of over 170 feet from the northern boundary. The side yard setback for both
the proposed church building and existing dwelling comply with the setback standards of the
MUA-10 Zone.
C. Rear yards shall be a minimum of 25 feet. Parcels or lots with rear yards adjacent to
property receiving special assessment for farm use, the rear yards for a dwelling shall
be a minimum of 100 feet.
FINDING: As indicated in the foregoing finding, staff finds the western property boundary to be
considered the rear property line. The County Code requires minimum yards of 25 feet from rear
property lines. The proposed church building will have a rear yard setback of over 300 feet from
the west property boundary. The single-family dwelling intended to be the parsonage has an
existing rear yard setback of over 480 feet from the western boundary. The rear yard setback for
both the proposed church building and existing dwelling comply with the setback standards of
the MUM 0 Zone.
D. The setback from the north lot line shall meet the solar setback requirements in DCC
18.116.180.
FINDING: The 29.8 -foot tall church will require a solar setback of 70.4 feet from the northern
property boundary (the solar setback of 70.4 feet would translate to a perpendicular
measurement from the northern property boundary of approximately 61.6 feet). As proposed, the
proposed church building will observe a setback of 40 feet from the north property boundary.
However, the ridge, which is used for the basis of solar setback measurements, will be setback
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at least 65.6 feet from the north property boundary. Therefore, the proposal complies with solar
setback standards of DCC 18.116.180(B).
C. CHAPTER 18.128. CONDITIONAL USES
1. Section 18.128.015. General Standards Governing Conditional Uses.
Except for those conditional uses permitting individual single-family dwellings,
conditional uses shall comply with the following standards in addition to the standards of
the zone in which the conditional use is located and any other applicable standards of the
chapter.
A. The site under consideration shall be determined to be suitable for the proposed use
based on the following factors:
1. Site, design and operating characteristics of the use;
FINDING: The applicant is proposing a church on the subject property. The property is
approximately 4.98 acres and has relatively level topography. The vegetation on-site is primarily
native grasses and shrubs and some juniper trees. The eastern portion of the site is developed
with a single-family dwelling established in 1967 and shed. An irrigation canal crosses the
property in the northern half of the property. Stevens Road is adjacent to the southern property
boundary. Thunder Road, a private access roadway, is adjacent to the eastern boundary.
Access to the property is taken from an existing point along Stevens Road.
The proposed church will be centrally located on the property and west of the existing dwelling.
It will be 14,560 square feet and able to accommodate up to 325 parishioners. The church
building will also include offices, a large meeting area, Sunday school classrooms, bathrooms,
and storage space. The existing dwelling will be converted to a parsonage intended for church
clergy. Removal of vegetation will only occur within the development area. Otherwise, mature
juniper trees and other vegetation and existing topography throughout the property will be
retained. Parking is proposed in front of the building, facing Stevens Road. The western portion
is the septic field, with a northern portion containing the reserve septic field. Introduced
landscaping beds will also be provided around and throughout the parking area and around the
back of the church. The primary driveway access from Stevens Road will be relocated west and
the former access will be converted to a pedestrian pathway. According to the applicant, the
church use will occur primarily on Sunday with uses accessory to the church occurring on Sunday
or other days of the week. The accessory uses include Sunday school, youth group, Bible
studies, weddings, and administrative meetings.
Hearings Officer: Opponents contend that the site is not suitable due to its size, topography,
location and other factors in relation to this specific proposal. The site itself is suitable for a church
and parsonage. It is large enough to accommodate the proposed church and has no topographical
or other physical constraints. It has access to a collector street with good site distance. Whether the
proposed church is suitable for this site in the sense of being compatible or relating harmoniously
or with other uses and properties or otherwise complies with applicable standards is discussed
below.
2. Adequacy of transportation access to the site; and
FINDING: The subject property is adjacent to Stevens Road to the south and Thunder Road to
the east. The access to the property is taken from Stevens Road, a "collector". The applicant is
proposing to relocate the existing driveway access west based on conversations with the Senior
Transportation Planner and County Road Department. The old access point will be converted to
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a pedestrian pathway while the new access will have a width of approximately 35 feet, allowing
for two-way traffic with an outbound right turn and left turn, and inbound lane. The applicant
provided a January 15, 2018 Site Traffic Report (STR) dated January 15 and prepared by
Transight Consulting, LLC. that found no indication of crash history on adjacent roadways and
no sight distance conflicts or impediments at the existing access point." In addition, the County
Road Department and Senior Transportation Planner agreed with the report's findings and did
not identify transportation infrastructure deficiencies. Numerous comments were submitted to the
record regarding the traffic impacts to adjacent roadways and nearby intersections (e.g. the
intersection of Stevens Road and SE 27th Street to the west). Transportation and traffic related
criteria are also addressed below in DCC Sections 18.128.080(B)(3) and 18.124.060(K).
Hearings Officer: Staff appears to have found that this criterion is met but, after noting the
comments received, suggests that this criterion be a focus of my review. The opponents did not
present professional analysis of the adequacy of transportation access to the site. Rather, their
comments are anecdotal based on their experience and impressions. In a Feb 2, 2018 letter,
Mr. Kasmeyer states that ingress and egress from Thunder Road already is dangerous as traffic
on Stevens travels over 50 mph despite the posted 45 mph limit. Several commenters suggest
that the STR should consider construction detours, bike traffic and other concerns. They note
that there likely will be well over 100 trips for Sunday services. They suggest that there will be
adverse impacts on the intersection of Stevens Rd. and 27th St. in the City of Bend.
The STR indicates an ITE estimate of 101 daily trips with 7 weekday PM peak hour trips. Most
would come from and exit to the west, away from Thunder Road. There were no reported crashes
between 2011 and 2015. Sight lines exceed AASHTO minimums and sight distances were found
adequate assuming 55 MPH speeds.
Stevens is an urban collector with sufficient capacity. While there may be short surges during
off-peak hours such as Sunday mornings they appear to be no more than those typically
associated with a church.
The City of Bend was notified of the proposal and staff reached out to the City to ensure that it
had no comments. Further, the Joint Management Agreement expressly provides Bend with an
opportunity to seek road improvements and requires that they meet City standards. No
comments or road improvement requests were received, suggesting that the intersection impacts
alleged within the City are not a significant concern to the City. Staff testified that the site is within
the urban area reserve 10 and the property to the south is within the Bend UGB. There was
testimony regarding master planning of that site for urban development. Any such development
likely would have to address ensuring that Stevens Rd is suitable for urban levels of traffic.
Further, since this criterion relates to transportation access to the site, it does not appear to
address off-site impacts, especially those some distance away.
I find that the applicant has met its burden that the transportation access is adequate.
3. The natural and physical features of the site, including, but not limited to, general
topography, natural hazards and natural resource values.
FINDING: The proposed church, including buildings and parking and maneuvering areas, will
be in an area that has relatively level terrain. Vegetation on-site includes native grasses and
shrubs with a few juniper trees. The property is developed with an existing single-family dwelling,
access driveway, parking area, and an accessory structure (shed). There are no known natural
hazards, except for wildfire, or distinguishing natural resource values on property. Submitted
comments by neighboring property owners place value in the natural landscape, vegetation, and
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wildlife. Although staff respects the neighbors' concerns, staff reviews the site as suitable and
not hindered by natural and physical features such as wetlands, rivers, and rimrock, which this
site does not contain. Staff believes there are no natural or physical features on the site that will
prevent the proposed church use.
Hearings Officer: I concur, while the flat topography and limited vegetation are relevant to other
criteria, this criterion is met.
B. The proposed use shall be compatible with existing and projected uses on
surrounding properties based on the factors listed in DCC 18.128.015(A).
Hearings Officer: Staff summarized the area as follows:
Existing and projected uses on surrounding properties consist of a mixture of rural residences
and small-scale farms, as well as urban density development. The closest residential
developments to the proposed church building are approximately 115 feet to the north and
approximately 430 feet to the west and east. Adjacent to the south and east property
boundaries is Stevens Road and Thunder Road, respectively. The Bend UGB is located
adjacent to the southern property boundary and includes Stevens Road and the western
portion of a large parcel under State of Oregon ownership. The area within the UGB is
currently zoned Urbanizable Area, which is currently open space but is intended to be used
in the future for urban development once annexed into the city limits. The eastern region of
the large parcel is currently under review for a plan amendment and zone change from farm
to residential. The city limits of Bend and related urban density residential development is
located west of the subject property approximately 1,400 feet. To the northwest and east of
the subject property are developed or vacant farm -zoned lands. The vegetation and
topography on the subject property is similar throughout the surrounding area with native
grasses, shrubs, and other groundcover but lacks any significant population of tree species.
The projected land uses based on the current zoning will likely be similar to those already
established such as single-family dwellings, agricultural uses, and urban density
development.
It is necessary to address the meaning and applicability of this criterion before addressing the
applicant's position and the concerns voiced by opponents. Staff notes that hearings officer
decisions consistently have concluded that this criterion is intended to "require that the existing
and projected `use' on surrounding lands will be allowed to continue". In other words, would the
proposal preclude or severely impact whether surrounding properties may continue to be used
for their existing use or develop in accordance with the Code? In the context of a cell tower, for
example, it has been stated that:
1 understand the neighbors' concerns about the appearance of the tower in their
neighborhood. However, the existence of the tower will not so much affect the use, but the
enjoyment of their properties. This criterion is concerned mainly with making the proposed
use compatible with other uses. There is no evidence in the record that the proposed
monopole will impact the ability of current neighbors to use their properties for all the
residential and associated uses that they now enjoy. CU -12-15, citing and referencing CU -
09 -36, CU -11-14, CU -08-79.
I have applied this criterion in a similar manner in other decisions, including other than cell towers.
Mr. VanVactor takes issue with this interpretation. He argues that such a limited application
makes the criterion "more or less meaningless" because it is hard to conceptualize a proposal
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that would be so incompatible as to preclude use of other properties absent an encroachment or
similar issue. See, April 24, 2018 letter.
The applicant urges that I continue the historic interpretation of this criterion. Father's House
asserts that this is particularly appropriate given the special status enjoyed by churches under
the Religious Land Use and Imprisoned Persons Act (RLUIPA). See e.g. April 23, 2018 letter.
Somewhat surprisingly, there continues to be no case law and no definitive Board of
Commissioners' decision addressing this criterion. I find that the arguments made by the
opponents do not warrant overturning its historic application. Terms such as "compatible" are
notoriously subjective and difficult to apply consistently. While one can argue that the historic
interpretation is too crabbed, it provides a relatively clear guidepost. There are conditional uses
listed in the MUA10 zone that one easily can envision being so incompatible as to impair the use
of property for residential purposes. See e.g. exploration and processing of minerals, landing
strips, landfills, mining. It also provides a basis for distinguishing this criterion from the "relate
harmoniously" criterion.
Mr. VanVactor argues that, even under the historic interpretation, the proposal is incompatible
with the rural residences in the area. He notes that it is much large and more intense, akin to a
commercial use which generally are not allowed in the MUA-10 zone. There is no doubt that the
church will be the most prominent developed feature for the foreseeable time and impact views.
But I find no evidence in the record suggesting that the impact on the surrounding residences
would be so great as to substantially interfere with or preclude residential use.
Churches are a conditional use in the zone, so they clearly are contemplated. Another, perhaps
broader, application of the criterion would be to assess whether the proposal at issue greatly
exceeds the scope and impacts of a typical church or whether there is something so unique
about the area that even a "typical" church would be incompatible. This is not a "mega -church".
The proposal is well within the setbacks and other dimensional limits in the zone. Unlike some
other zones, this zone has no maximum lot coverage or structure size. As discussed below,
although perhaps somewhat larger than necessary it is not significantly disproportionately larger
than other churches referenced in the record. Nor is the church proposing activities that are not
typically associated with a church including youth classes, weddings, funerals, occasional large
events etc. The proposal is on an urban collector, has nominal peak hour transportation impacts
and otherwise typical transportation impacts. The applicant has proposed landscaping and
screening exceeding code requirements. I agree with staff that the exterior lighting as revised
appears to be typical of uses such as a church. It will comply with the lighting requirements of
DCC Chapters 18.124 and 18.116 and the County's Outdoor Lighting Ordinance of DCC 15.10,
with are addressed below. Finally, although the site and the area pose difficulties for the applicant
in meeting DCC 18.124.060 A., it appears to be typical of much of the rural area so raises no
significantly unique compatibility issues.
Neighbors have expressed concerns about property values diminishing once the use is
established. However, the record does not contain evidence that property values would decrease
or that the ability to sell a home in the neighborhood would be impacted as result of allowing the
proposed church use, especially that the impact of this proposal would be greater than any other
church.
This criterion also requires consideration of projected uses on surrounding properties. This area
is near the Bend city limits and urban growth boundary. The property immediately south is on its
way to rather intense urban development although the scope and timing is unknown. That
development is likely to impact the rural character of the area, traffic, potentially views, night sky
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and other attributes valued by the opponents. The church likely will conveniently serve this newly
developing area. A church is consistent with such future development and arguably provides a
transition between the rural residential uses and the coming urban development. This criterion is
met.
C. These standards and any other standards of DCC 18.128 may be met by the imposition
of conditions calculated to insure that the standard will be met.
FINDING: Conditions of approval are imposed to lessen impacts on surrounding properties.
2. Section 18.128.040. Specific Use Standards.
A conditional use shall comply with the standards of the zone in which it is located and
with the standards and conditions set forth in DCC 18.128.045 through DCC 18.128.370.
FINDING: The church is proposed within the MUA-10 Zone. Staff recommends the Hearings
Officer review compliance with the standards of the MUA-10 Zone and with standards and
conditions set forth in DCC 18.128.080.
3. Section 18.128.080. Church Hospital, Nursing Home, Convalescent Home, Retirement Home.
A. Such a use shall be authorized as a conditional use only upon finding that sufficient
area is provided for the building, required yards and off-street parking. Related
structures and uses such as a manse, parochial school or parish house are considered
separate uses and additional lot areas shall be required therefore.
FINDING: As discussed in a foregoing finding, the 4.98 -acre parcel is large enough to
accommodate the proposed 14,560 -square foot church, parsonage, on-site waste disposal
system, 118 -space parking and maneuvering area, and landscaping areas, and meet the MUA-
10 setbacks. Therefore, staff believes this criterion is satisfied. No other structures or uses of the
site is proposed.
Hearings Officer: Concerns were raised about additional uses such as a day care or school.
The applicant clarified that it is not proposing a school and concurred that any such use would
require a separate approval in the form of a modification or new use. It currently leases space to
an independent day care but does not propose to carry that over to this site. Presumably an
independent day care would require additional approvals also.
The applicant expressed concern that this criterion was being used in support of the opponent's
arguments that the site is too small and the proposal too large. Counsel for the applicant argues
that this section improperly discriminates against churches. First, I see this standard as primarily
technical and not dealing with offsite impacts. Counsel for the Naslunds does not argue
otherwise. Second, I concur with staff that the site is large enough for the proposed uses.
Accordingly, I do not need to reach the discrimination issue.
B. The applicant shall address the following issues in the application:
1. Probable growth and needs thereof.
FINDING: According to the applicant, the current average attendance of Father's House church
at its 61690 Pettigrew Road location, is 200 persons. As proposed, the church will accommodate
264 seats but can expand to 325 seats. As proposed, staff believes the proposal will
accommodate the demand for growth and I concur.
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2. Site location relative to land uses in the vicinity.
FINDING: As noted previously, land uses on abutting and nearby properties in the area
surrounding the subject property consist of a mixture of rural residences and small-scale farms,
as well as urban density development to the west. In addition, the Bend UGB is located adjacent
to the southern property boundary and includes Stevens Road and a portion of a large parcel
under State of Oregon ownership. The area within the UGB is currently within the Urbanizable
Area Zone. The purpose of the UA zoning district is "to preserve large areas of undeveloped or
rural land for future urban development prior to annexation" and thus is expected to provide
additional urban levels of residential development in the future. The applicant proposes to site
the new church building just east of center on the property. The proposed church building will be
oriented southwest, with the rear of the building facing the properties to the north. At its closest
reach, the building will be located approximately 115 feet from the nearest dwelling to the north.
The applicant states "The proposed church location will provide convenient access to the public,
particularly considering the fact the existing Father's House church is located less than one (1)
mile to the northwest of the subject property."
Neighboring property owners believe the proposed church building will be incompatible with the
surrounding rural residential development and would have an unfavorable relation to land uses
in the vicinity. Furthermore, comments suggest the site location of the church should be located
within city limits to the west.
Hearings Officer: The applicant has addressed the site location relative to uses in the vicinity.
This section contains no standard against which to apply that information. It appears to be a
requirement to provide information to assist in application of the discretionary criteria in the code.
The applicant has submitted site plans, area maps, discussion of existing and future uses in the
area and other information sufficient for the public to understand the proposal and for me to apply
the criteria.
3. Conformity with Deschutes County Road Department standards for proposed access
to and from principal streets and the probable effect of the proposal on the traffic volume
of adjoining and nearby streets.
Hearings Officer: Staff indicates that the applicant designed the project to address concerns
from both the Senior Transportation Planner and County Road Department. This includes
relocating the access west and eliminating the existing access. The project also limits the number
of service drives to the parking lot to one, the minimum necessary to serve the church site. This
one service drive will also provide access to the parsonage.
The applicant provided a site traffic report dated January 15, 2018 and prepared by Transight
Consulting, LLC. The County Road Department and Senior Transportation Planner agreed with
the report's findings and did not identify transportation infrastructure deficiencies. All site distance
and similar safety standards are met.
As previously indicated, Stevens Road is a County -maintained urban collector. In this location,
the road is also located within the Bend UGB and thus subject to the requirements of the Revised
Joint Management Agreement, as noted above. The City of Bend — Planning Division and Public
Works Department — was provided notice but did not present comments or concerns regarding
the proposed church use.
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Neighboring property owners submitted comments anecdotal concerns regarding concerning
traffic impacts to adjacent roadways and nearby intersections and noted the increased vehicle
and bicycle traffic on Stevens Road within the last few years. It was noted that vehicles often
exceed the 45 -mph speed limit but the SRA uses a higher speed limit. This criterion is met.
C. Such uses or related buildings shall be at least 30 feet from a side or rear lot line.
FINDING: The proposed church use, including parking and maneuvering areas, landscaping,
pedestrian walkways, and the parsonage and church buildings, will be sited approximately 40
feet and 60 feet from the north side lot line and west rear lot line, respectively.
D. Except as provided in Section 18.80.028 of the A -S zone, such uses may be built to
exceed the height limitations of the zone in which it is located to a maximum height of
50 feet if the total floor area of the building does not exceed the area of the site and if
the yard dimensions in each case are equal to at least two-thirds of the height of the
principal structure.
FINDING: As proposed, the church building will not exceed the 30 -foot height limit of the
underlying MUA-10 Zone. This criterion is not applicable
E. Churches in the Wildlife Area Combining Zone are subject to the provisions of DCC
18.88.2
FINDING: The proposed church is not located within a Wildlife Area Combining Zone and
therefore, this criterion does not apply.
D. CHAPTER 18.124. SITE PLAN REVIEW
1. 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 (SMIA).
FINDING: The proposed use is a church that serves the general public. The provisions of this
chapter are applicable.
2 The subject application was submitted on January 19, 2018, prior to the removal of this section, DCC 18.128.080(E),
which occurred in February 2018 (Ordinance 2018-003).
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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: The property is approximately 4.98 acres. The existing single-family dwelling is
located near the intersection of Stevens Road and Thunder Road. The site has relatively level
topography and is vegetated primarily with native grasses and shrubs and some juniper trees.
An irrigation canal crosses the property in the northern half of the property. Stevens Road and
Thunder Road abut the property to the south and east, respectively. Access is taken from
Stevens Road.
The area surrounding the property consists of small farm and rural and urban residential
properties. Rural residential properties are to the north, east, and west of the property. Directly
west across Stevens Road is a large parcel under State ownership that is currently open space,
but extensive urban development is likely in the future. The western region of the state-owned
parcel together with Stevens Road is located within the Bend Urban Growth Boundary (UGB)
and the eastern region is currently under review for a plan amendment and zone change from
farm use to residential use. The Bend city limits and related urban density residential
development is located west of the subject property approximately 1,400 feet. Farm -zoned
parcels are located northwest and east of the subject property are either developed or vacant.
Hearings Officer: The applicant is proposing a 14,560 -square foot church on the property. It is
slightly below the maximum 30 feet height. The proposal includes converting the existing dwelling
to a church house/parsonage. The existing driveway access will be relocated to the west and the
former driveway will be discontinued by use of vehicles. The church building is shown as centrally
located on the property although toward the northern property line and west of the existing house
and will include a sanctuary for up to 325 parishioners, offices, Sunday school classrooms,
bathrooms, large gathering area and storage space. The applicant proposes locating the parking
lot along Stevens Rd. and has reduced the proposed parking to 99 spaces with a maneuvering
area. The applicant is proposing to remove native vegetation in the development footprint and
introduce landscaping in and around the parking area and around the back of the church. Native
vegetation will be retained in some areas (e.g. eastern region) of the property. No other impacts
to landscape and existing topography are proposed. The applicant proposes exterior lighting,
primarily in the parking area and submitted a revised plan using bollard lights and fewer light
poles. Two septic fields are shown on the western and northern portions of the site.
"Harmoniously" is not defined. Mr. VanVactor quotes Webster's New Twentieth Century
Unabridged dictionary defining "harmonious" as: adapted to each other; having the parties
combined in a proportionate, orderly or congruous arrangement; symmetrical." April 24,2018
letter. The online Oxford Living Dictionary defines it to include "in a way that forms a pleasing or
consistent whole". I have not seen any particularly useful case law defining or applying this term.
As noted in SP -99-44 (Crossroads Community Church, 2/23/2000) this criterion is "highly
subjective" and difficult to apply. In 247 -17 -000319 -CU (Applicant's Post -hearing exhibit 8), 1
concluded that this imposes a somewhat higher standard than "compatibility" as the latter has
been applied. I described it as meaning a "minimum of conflict, discord or similar impacts on
existing development and the environment." The focus is on the design. I stated that "Ultimately,
I think this criterion asks whether the applicant has taken sufficient steps to ensure that impacts
do not create any more disharmony than other uses allowed by right or conditionally in the MUA-
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10 zone or the existing uses." In that case, the proposal was similar to other uses in a heavily
impacted area and the applicant had taken significant steps to mitigate impacts.
Accordingly, it appears to be akin to a design review provision requiring that the applicant
demonstrate that it has taken reasonable and feasible steps to make the use fit into the
neighborhood through design, layout, location and other factors and expressly that the applicant
minimize primarily visual impacts. Also, unlike "compatibility" this criterion considers only existing
development and natural features. Ms. Kellington argues in her June 4, letter that this includes
future development to the south as envisioned in the state's 2007 "Concept Plan". That plan has
not been adopted by the relevant planning entities and the property has not been annexed. I
have no doubt that the area will develop rather intensely at some point, but it cannot be
considered "existing development."
The opponents argue that the size of the structure alone violates this criterion. Mr. VanVactor
notes that the church structure will be several times larger than any of the neighboring
residences. He suggests that existing development in the area generally covers less than 2
percent of the applicable lots while the church, including parking would cover approximately 36
percent. As he notes, there certainly are no large parking lots in the area.
The applicant contends that the size is necessary to accommodate its growing congregation. Its
current location necessitates two Sunday services meaning that the congregation cannot come
together as a whole for fellowship, more volunteers are required, or people must volunteer for
longer periods. The applicant describes its current location as too small to accommodate needed
Sunday school and daycare facilities together and other normal and customary uses.
The applicant cites to other large structures in the area, although there is some dispute as to
whether they all are within one -mile. These include an 11,520 sq. ft. and a 13,104 sq. ft. arena,
a 13,888 sq. ft. farm building in the rural area and large structures in the urban area, including
an 11,012 sq. ft. church. The applicant notes that single-family dwellings in excess of 10,000 sq.
ft. are not rare in the Bend.
The opponents argue that none of the structures are within a '/o acre radius which is more
appropriate when evaluating visual and related impacts. They note that the large rural structures
generally are on much larger lots so presumably have less impact on adjacent properties. Others
are lower structures or less visible due to topography.
I agree with the opponents that there is no question that the proposed structure and parking lot
will be the predominant manmade feature within the area in which they reside. There is no
evidence that the nearby vicinity currently is degraded visually or otherwise, unlike for example
the Mazama or Crossroads applications. The existing residences enjoy flat, broad, largely
uninterrupted rural vistas. Some, such as the Lomax's, have mountain views that they contend
will be blocked. The Lakes state that it will block the view of Paulina Peaks and Lava Butte from
their home. The Naslund's territorial and Paulina Peak views would be impacted. April 24, 2018
photos. The applicant provides little if any evidence to the contrary. See e.g. Stevens & Thunder
Road Neighborhood slides.
But there is no maximum structure size in this zone and I decline to find that this criterion prohibits
large structures as such, particularly where the applicant has demonstrated that a structure in
this size range being proposed is generally in line with other churches and is reasonably
necessary to accommodate the use. The current church is 10,000 sq. ft. for a congregation of
200-225 with holiday peaks to 275. The applicant has demonstrated significant operational
constraints. Almost by definition, churches seek out new congregants and it does not seem
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unreasonable to provide the opportunity to expand to 325 nor is a 99 -space parking lot out of line
for the number of users. Although the relatively nearby church is only 11,012 sq. ft., the approved
Crossroads Church was 14,325 sq. ft. with 134 parking spaces for a current congregation of 200
with expansion to 350. Although information on normal and customary size in relation to
congregation for churches in the area would have been useful, the information in the record
indicates the proposed size is not per se unreasonable.
This is not to say, however, that the footprint and scope could not be reduced without significantly
impacting functionality. Further, to be "harmonious" in this area it is evident that the larger and
more incongruous the structure and parking area the more consideration must be given to
design, layout and locational options to minimize impacts on existing development. In my opinion,
the applicant has failed to meet its burden in this regard. There is nothing in the record suggesting
that the applicant met with neighbors in an effort to evaluate options to address impacts. Gary
Rogers May 8, 2018 letter. There is nothing suggesting that the applicant gave any serious
consideration to reducing the footprint, or different design, layout and placement alternatives in
relation to how they might better blend in and reduce impacts. For example, I asked whether
placing the structure next to Stevens Road might lessen visual impacts by moving it farther away
from nearby residences. The response was that the applicant thought it best to move it as far
away from residences as possible. But a parking lot can largely be screened and, as the applicant
has proposed, lighting made smaller and less intrusive. Perhaps it could be spit up so as not to
create such a large expanse. The applicant states that the location of the "approved" drain fields
limits its options. April 23, 2018 letter. The opponents contend that those were the only areas
tested. There is nothing in the record indicating that they must be located where proposed.
Although the proposed structure meets the maximum height standards, it is not clear why a
peaked roof was chosen; apparently there was no consideration given to a slightly sloped roof,
or a less traditional church design. The mezzanine appears primarily to be for mechanical and
storage so perhaps could be eliminated. The entryway is 23 feet wide. The great hall is 63 feet.
I understand that a space for dinners and gatherings is desirable, but perhaps the classrooms
could be multipurpose with movable walls and the footprint of the east -west wing reduced without
significantly impacting functionality. Perhaps larger expanses of windows rather than solid siding
would be less intrusive. Perhaps another building orientation would mitigate impacts.
The only alternative the applicant appears to have considered is the design offered by the
opponents. The applicant adequately explained why it would not reasonably meet its needs.
Rowles May 30, 2018 letter.
It is important to stress that I am not concluding that there is a significantly better alternative. Nor
am I trying to design the facility. But I think the applicant had the burden to demonstrate
reasonable efforts to consider alternatives that would better harmonize its proposal with existing
residences in the area, particularly on this relatively small, flat parcel with no topographical,
vegetative or other natural features to soften its impact. Cf. SP -95-60 (Applicant submitted
revised site plan to address this criterion.)
The applicant states that "We know that the building is an efficient layout that serves the church's
identified needs" and the applicant's primary focus has been on just that. But that is not the test.
The applicant simply never really provided evidence or analysis demonstrating that that it had
made reasonable efforts, including perhaps some trade-offs with its desires, to meet its needs
the most harmonious way reasonably possible. This portion of the criterion is not met.
There is little, if anything, in the record to suggest that the proposal does not relate harmoniously
to the natural environment or preserve natural features on the site, although it has offsite visual
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impacts as described above. Frankly, the site itself is a typical flat, and parcel with no significant
vegetation. The applicant has proposed more landscaping than the minimum required. This
portion of the criterion is met.
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: The applicant is proposing a church on the property. The proposed improvements will
be sited in areas where no significant landscaping and topography exists. The proposed
development will require removal of vegetation only within the building area. Mature juniper trees
and other vegetation throughout the property will be preserved and protected in its natural state.
No other impacts to landscape and existing topography are proposed. Staff believes 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: The proposed site plan design provides a safe environment while offering appropriate
opportunities for privacy and transition from public to private spaces. The design provides a good
separation between automobiles and pedestrians based on the submitted site plan. The applicant
proposes a pedestrian walkway for access to and from the parking area and proposed building
and to Stevens Road. Staff believes this criterion is satisfied.
D. When appropriate, the site plan shall provide for the special needs of disabled
persons, such as ramps for wheelchairs and Braille signs.
FINDING: According to the site plan, six (6) ADA accessible parking spaces will be provided
adjacent to the front of the church building. The County Building Safety Division will review
specific ADA requirements during building permit review.
Staff comment: Staff recommends this be made a condition of any approval if the application is
approved.
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: Access to the property is taken from Stevens Road, which is adjacent to the southern
property boundary. The existing access, which serves the single-family dwelling (proposed
parsonage), is approximately 160 feet from Thunder Road. This access will be eliminated and
converted into a pedestrian pathway. A new access point is proposed approximately 540 feet
west of Thunder Road and further from the two residences closest (north and east) to the existing
access to be removed. On the property, the proposed location and design of the pedestrian
walkways will provide adequate separation between pedestrians and moving and parked
vehicles. The drive aisles will provide adequate vehicular circulation on-site and convenient
access to the church building and parsonage.
Hearings Officer: The proposed parking area will be located adjacent to the proposed church
and the main area separated from adjacent residential uses by the church building. The revised
site and landscaping plans reduce the number of parking spaces to 99 and increase landscaping
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both in and out of the parking lot. I find that this criterion is met. I note that this criterion presents
somewhat of a conundrum in that it singles out the parking area for special emphasis. That likely
encouraged the applicant to place the church at the back of the parcel. But I do not think this
criterion obviates the need to consider options and seek to harmonize the overall development
with existing development.
F. Surface drainage systems shall be designed to prevent adverse impacts on
neighboring properties, streets or surface and subsurface water quality.
FINDING: The proposed church use will not significantly increase impervious surface area on
the subject property. The submitted site plan shows the subject property has been designed,
graded, and improved to direct the flow of stormwater to landscaped areas located throughout
the property. Staff believes that the existing and proposed design prevents adverse impacts on
the neighboring properties, streets, and surface and subsurface water quality.
G. Areas, structures and facilities for storage, machinery and equipment, services (mail,
refuse, utility wires, and the like), loading and parking and similar accessory areas and
structures shall be designed, located and buffered or screened to minimize adverse
impacts on the site and neighboring properties.
FINDING: The proposal includes a parking area along the south/southwest side of the proposed
church building, which the applicant states "is located as far from adjacent existing residences
as possible." The proposed church building will provide a buffer to the parking area. In addition,
the proposed trash enclosure and mechanical equipment enclosure, located in the northwest and
southeast sides of the proposed structure. Each of these components will be screened by
landscaping and/or fencing, according to the submitted application materials.
Hearings Officer: Again, this criterion may be somewhat at odds with DCC 18.124.060 when
the most prominent and impactful component is the main structure. But it also suggests that,
unlike the proposed structure, parking lots can be screened, landscaped and otherwise designed
to minimize impacts without necessarily putting the structure in back.
H. All above -ground utility installations shall be located to minimize adverse visual
impacts on the site and neighboring properties.
FINDING: No above -ground utility installations are proposed. This criterion does not apply.
1. Specific criteria are outlined for each zone and shall be a required part of the site plan
(e.g. lot setbacks, etc.)
FINDING: Each zone affecting the subject property is identified in this decision. The applicable
criteria for each zone are addressed in the findings above.
J. All exterior lighting shall be shielded so that direct light does not project off-site.
FINDING: The applicant states that any new lighting will be shielded so that direct light does not
project off-site.
Hearings Officer: The applicant revised its lighting proposal to include lower bollard style lights
and minimize the number of poles. I find that this criterion can be met with a condition requiring
shielding and that the applicant have a lighting engineer certify no off-site projection.
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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 addressed in a foregoing finding, the applicant designed the project to address
concerns from both the Senior Transportation Planner and County Road Department. This
includes relocating the driveway access to the west and removing the existing access closer to
Thunder Road. The number of service drives is limited to one, which is the minimum necessary
to serve the church site. The service drive will also provide access to the parsonage.
A site traffic report dated January 15, 2018 and prepared by Transight Consulting, LLC was
provided by the applicant. Neighboring property owners found deficiencies or errors in the report.
However, the County Road Department and Senior Transportation Planner agreed with the
report's findings and did not identify transportation infrastructure deficiencies. The County Road
Department recommended that any improvements sought by Bend under the Revised JMA be
required but none were received. The only County requirements are payment of SDC's and that
the applicant obtain a driveway access permit for the proposed access to Stevens Rd pursuant
to DCC 12.28.050, 17.48.210, and 18.124.080.
Stevens Road is a County -maintained urban collector. This segment of Stevens Road is located
within the Bend UGB and, as noted by the County Road Department, subject to the requirements
of the Revised Joint Management Agreement. As noted previously, the City of Bend was
provided notice but did not provide comments or concerns regarding the proposed church use.
Hearings Officer: For the reasons previously stated, I find that this criterion is met.
3. 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.
FINDING: The proposed church is not considered commercial, industrial, or multi -family
development. Therefore, these criteria are not applicable.
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.
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FINDING: The proposed church use will require 82 parking spaces', as noted below in this
decision. Therefore, the parking area shall be required to be improved with at least 2,050 square
feet of landscaping to meet this criterion (82 * 25 = 2,050). The applicant proposes to retain native
and existing vegetation in the eastern area — over one acre — of the property and in other areas
not intended for development. In addition, the applicant proposes 4,900 square feet of
landscaping throughout the parking area. This exceeds the 2,050 square foot requirement and
thus meets 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.
FINDING: The proposed landscape plan shows a landscaping strip at least 10 feet in width
between the parking area and Stevens Road. Although the parking area is not directly adjacent
to the west, north, and east property lines, the applicant proposes a landscape strips at least five
feet in width adjacent to the western side of the proposed parking area. The plan shows the
landscaping strip containing proposed vegetation. Staff believes this criterion is met.
c. A landscaped strip separating a parking or loading area from a street shall
contain:
1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on
the average.
2) Low shrubs not to reach a height greater than three feet zero inches, spaced
no more than eight feet apart on the average.
3) Vegetative ground cover.
FINDING: According to the landscape plan, the proposed landscape strips will include retained
trees, shrubs, and vegetative ground cover. Staff believes this criterion will be 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 five feet.
FINDING: Based on staff's review of the landscape plan, the landscaped areas will be in defined
areas that are uniformly distributed throughout the parking area. All landscaped areas will be at
least five feet in width. These criteria will be met.
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.
FINDING: The applicant is proposing to remove native vegetation in the development footprint
and introduce landscaping around the parking area. Some areas of the property will maintain
native vegetation. The existing landscaped areas are in naturally defined areas and are uniformly
distributed throughout some regions of the property. Care for these areas is a naturally occurring
process and is continuously maintained and kept alive and attractive. The applicant agrees to a
condition of approval to ensure compliance with these criteria.
3 Although the applicant proposes 99 parking spaces, required landscaping is only based on the required parking
spaces, which is 82 in this case.
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Staff recommends, if the application is approved, that it be made a condition of approval requiring
the applicant to maintain continuously and keep alive and attractive all landscaping on the subject
property.
h. Maximum height of tree species shall be considered when planting under
overhead utility lines.
FINDING: The applicant is not proposing to plant trees under overhead utility lines. Therefore,
this criterion is not applicable.
C. Nonmotorized 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: Bicycle parking standards are addressed in DCC 18.116.031, below. Staff believes
that the proposal met the exception criteria thus no bicycle parking is required.
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 surfaced walkways and similar techniques.
FINDING: The proposed church is not commercial, office, or multi -family 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.
Onsite 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.
FINDING: The applicant proposes a walkway that will connect the parsonage, the church
building, and the parking area. There are no pedestrian walkways along the road or adjacent to
the site. No pedestrian or bicycle connections exist on adjacent properties, and staff is unaware
of any are planned connections on adjacent properties. Nevertheless, the former driveway will
be converted to a pathway to the public roadway, Stevens Road. The applicant is proposing this
to meet a Bend Fire Department requirement for evacuation purposes. Staff believes this criterion
is met.
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.
FINDING: The proposed pedestrian walkways will be concrete and five feet of unobstructed
width. The walkways that border the parking spaces will be five fee and include curbing. Based
on staff s review of the site plan, the walkways directly connect pedestrians to the church building,
parsonage, and parking area. Staff believes this criterion is met.
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d. Driveway crossings by walkways shall be minimized. Where the walkway
system crosses driveways, parking areas and loading areas, the walkways
must be clearly identifiable through the use of elevation changes, speed
bumps, a different paving material or other similar method.
FINDING: The proposal includes a driveway crossing by walkway that connects the parsonage
and the church. The applicant proposes to have this crossing clearly identifiable using striping.
Staff believes this criterion is satisfied.
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 five percent. Walkways up to eight percent
slope are permitted, but are treated as ramps with special standards for railings
and landings.
FINDING: Any required accommodations to comply with ADA standards will be addressed
during building permit review. This criterion will be met.
D. Commercial Development Standards...
FINDING: The proposed facility is not a commercial development. These criteria do not apply.
4. Section 18.124.090. Right of Way Improvement Standards.
Any dedications or improvements to the road right of way required under DCC 18.124
shall meet the standards for road right of way improvements set forth in DCC Title 17 and
any standards for right-of-way improvements set forth in DCC Title 18 for the particular
zone in question.
FINDING: Neither the Deschutes County Road Department nor Deschutes County
Transportation Planner identified transportation infrastructure deficiencies or requirements.
E. CHAPTER 18.116, SUPPLEMENTARY PROVISIONS
1. 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 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(8)(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.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 25
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:
Right -of -Way Width
Clear Vision
80 feet or more
20 feet
60 feet
30 feet
50 feet and less
40 feet
FINDING: Based on the submitted site plan, no clear vision area will be obstructed with this
proposal. Staff believes this criterion is met.
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 off-street parking requirements for the proposed use are addressed below.
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 by truck or similar vehicle, shall provide off-street loading space on the
basis of minimum requirements as follows:
2. Restaurants, office buildings, hotels, motels, hospitals and institutions, schools
and colleges, public buildings, recreation or entertainment facilities and any
similar use which has a gross floor area of 30, 000 square feet or more shall provide
off-street truck loading or unloading berths subject to the following table:
Sq. Ft. of Floor Area No. of Berths Required
Less than 30,000 0
30,000-100,000 1
100,000 and Over 2
3. A loading berth shall contain space 10 feet wide, 35 feet long and have a height
clearance of 14 feet. Where the vehicles generally used for loading exceed these
dimensions, the required length of these berths shall be increased.
FINDING: Based on the definition in DCC 18.04, a church is an institution and, therefore, is
subject to the off-street loading requirements detailed above. The proposed church will be 14,560
square feet in size. Based on the above table, the structure does not meet the size requirement
for a loading berth. For this reason, staff finds a loading berth is not required.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 26
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.
D. Number of Spaces Required. Off-street parking shall be provided as follows:
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.
FINDING: The applicant is proposing a 14,560 -square foot church that will include up to 325
seats. Pursuant to the one (1) space per four (4) seats ratio above, the required church parking
is 82 parking spaces. The revised indicates 99 vehicular parking spaces are proposed. Staff
believes 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 subject property includes a residential use. However, the proposal includes
maintaining the dwelling as a parsonage and thus associated and accessory to the proposed
church use. Although not required to provide two parking spaces for each dwelling unit (DCC
18.116.030(D)(1)), the applicant indicates two parking spaces will be located within the attached
garage of the dwelling. No other uses or businesses will be sharing the proposed off-street
parking spaces. Therefore, these criteria are not applicable.
2. Joint Use of Facilities. The off-street parking requirements of two or more uses,
structures or parcels of land maybe 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: The applicant is not proposing joint use of parking facilities. Although not required,
the proposed church and associated parsonage do have separate parking facilities, if necessary.
This criterion is not applicable.
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
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
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 27
proving the existence of such off -premise parking arrangements rests upon the
applicant.
FINDING: The parking and maneuvering area for the proposed church use is located on-site
and within 500 feet of the building. The parking and maneuvering area is located in a safe and
functional manner, designed for operable passenger vehicles made available for service
personnel only.
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: To ensure compliance, staff recommends it be made a condition of approval that
parking spaces are not used for storage of vehicles or materials or for the parking of trucks used
in conducting the business or used in conducting the business or use.
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: The proposed church is not considered commercial, industrial, or multi -family
development. Therefore, this criterion is not applicable.
6. On -Street Parking Credit. Notwithstanding DCC 18.116.030(G)(2), within commercial
zones in the La Pine Planning Area and the Terrebonne and Tumalo unincorporated
communities, the amount of required off-street parking can be reduced by one off-
street parking space for every allowed on -street parking space adjacent to a property
up to 30 percent of the required off-street parking....
FINDING: The applicant is not requesting off-street parking credit and therefore, this criterion is
not applicable.
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 subject property is adjacent to residential uses to the north, east, and west of the
property. The applicant states that the proposed parking lot is not adjacent to surrounding
residential uses since "the parking lot will be sited over 100 feet from the north, east and west
property lines" and thus not subject to this criterion. Staff notes that, unlike "adjoining4", "adjacent"
4 DCC 18.04.030 - "Adjoining" means contiguous; touching or connected, including tracts of land that only connect or
touch at a common point.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 28
is not defined in the Deschutes County Code. Merriam -Webster defines "adjacent", in relevant
part as:
1 a: not distant: nearby - the city and adjacent suburbs
b: having a common endpoint or border - adjacent lots - adjacent sides of a triangles
Staff believes that that the properties in residential use to the north and west, at minimum, are
adjacent in the sense of being nearby and having a common border with the subject property. It
may be that adjacency could be a broader concern if it is simply read as "nearby". Staff believes
that the Hearings Officer will need to determine which lots, if any, are "adjacent" prior to
determining if the proposed site plan effectively screens or buffers parking areas from these
properties.
In any regard, staff is unclear where the applicant is measuring to and from in order to derive 100
feet from adjacent property lines. Based on staff's measurements, the closest part of the parking
area is approximately 65 feet from the north boundary and 40 feet from the west boundary.
However, at its closest reach, the northerly single-family dwelling is approximately 285 feet to the
northeast, which is further than the proposed building (115 feet from the building to the dwelling).
The dwelling to the west is approximately 330 to 345 feet from the parking area.
Although the applicant argues that the criterion is not applicable based on distance, landscape
strips are proposed in designated areas surrounding the parking area and within the parking
area. According to the landscaping plan, the parking area will be landscaped primarily along the
west and south sides and a couple areas in the southeast. The church building occupies most of
the northeastern side of the parking area. Staff believes the proposed landscaping and church
building will aide in screening or buffering neighboring residential uses. However, a small area
between the ADA parking spaces and the septic tank, reserve drainfield, and trash enclosure
does not contain landscaping. Staff is unclear if those elements (e.g. septic) prevents additional
landscaping in this area or if there is the possibility to provide additional landscaping to mitigate
the impacts to the north and northeast.
In conclusion, staff believes this criterion was intended for the protection of residential
development within close proximity of a proposed parking area and not necessarily for adjacent
residentially zoned property regardless of the distance that separates the parking area and the
residential use. Based on numerous comments concerning impacts from vehicle lights, vehicle
traffic, and parking lot lighting, staff recommends the Hearings Officer determine if the parking
area is effectively screened as proposed (distance to residential use and some introduced
landscaping) or should additional landscaping and/or fencing be provided to mitigate impacts.6
Hearings Officer. As I have denied the site plan, findings on this issue may not particularly
relevant. Nevertheless, I agree with staff's measurements. Also note that the applicant has
reduced the number of actual parking spaces in this area by four.
6 https://www.merriam-webster.com/dictionary/adjacent
6 In a similar case for the Seventh Day Adventist church proposed at 21620 Butler Market Road, the Hearings Officer
did not discount for distance to the neighboring residential use to the south and west even though significant distance
separated the parking area and the neighboring residential uses (CU -05-8 and SP -04-57). Furthermore, the area
surrounding in the Seventh Day Adventist property, as in this case, was residentially zoned (MUA-10). The Seventh
Day Adventist proposed a landscaped berm and fencing along the south side where the closest residence was located
and additional landscape material along its west side where there was significant distance between the church and the
residential use.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 29
I have reservations about the hearings officer interpretation cited by staff in the footnote. It seems
to me that if the provision was intended to apply to all parking areas on all parcels adjacent to
residential parcels it would simply so state. It may be that it was intended to apply to parking lots
near the boundary with a residential parcel, although that creates the problem of determining
when it is "near" enough to mandate buffering. I do think that it relates to the location of the
residence on the parcel.
Other than a septic "do's and don'ts" sheet I cannot find that the applicant responded regarding
whether the septic fields preclude significant landscaping at their edges but note that the church
and parking areas appear to encroach into the dashed box depicting the reserve drainfield, so it
seems that some landscaping or a fence would be permissible in the areas suggested by staff
or along the property lines. If the applicant were to propose moving the church closer to Stevens
so it does not buffer the parking lot, other buffering would be necessary.
In the end, given that the applicant should be able to achieve compliance with the interpretation
cited by staff relatively easily (probably with a condition of approval if the site plan had been
approved), I find that the better course is to maintain consistency and conclude that this criterion
is not met for the small area referenced by staff.
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.
FINDING: The applicant is proposing lighting to illuminate off-street parking and maneuvering
areas. The applicant indicates that the proposed lighting will not project onto any adjoining
property in a residential zone. To ensure compliance, staff recommends this be made a condition
of any approval if the application is approved.
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: The area of the site that will accommodate parking and maneuvering of vehicles is
designed to occur on the site and prevent vehicles backing into a street or right-of-way. The
proposed church parking and maneuvering areas are not located near a street or other rights-of-
way. The parking area is located approximately 30 feet from Stevens Road. Staff believes 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: According to the applicant, the areas of the property proposed for standing and
maneuvering of vehicles will be paved surfaced with all-weather materials and will be sloped to
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 30
allow for surface water drainage on-site to designated stormwater infiltration basins and
landscape beds. However, if funding for paving is unavailable, the applicant is requesting an
exception to the paving requirements. the subject property is located outside of an
unincorporated community. If approved, the applicant agrees to a condition of approval that
requires the parking and maneuvering areas to be maintained in a matter in which it will not
create dust problems for the neighboring properties. Staff believes this criterion can be met with
the imposition of conditions of approval for either paving or gravel.
Hearings Officer: I concur with staff and note that a gravel area appears to be more consistent
with the rural character of the area than a sea of pavement, provided it is maintained properly.
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: The proposed parking area, including service drives, has been designed to meet the
design standards of the DCC 18.116. Access to the subject property is currently provided from
Stevens Road. The applicant is proposing to relocate the access west based on conversations
with the Senior Transportation Planner and County Road Department. The new access will have
a width of approximately 35 feet, allowing for two-way traffic (outbound right turn and left turn,
and inbound). Based on the proposed plans, sufficient width for two-way traffic service drives
has been provided in the other areas. In addition, the main service drive has been clearly marked
through use of either split rail fencing or concrete curbing. The applicant also proposes a
landscaping strip in this area. The design of the existing drives and proposed parking area, with
proper signage, will facilitate the safe flow of traffic and serve anticipated traffic. The design will
also prevent vehicle -backing movements on to the road right of way. Staff believes this criterion
has been met.
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: Access to the subject property is currently provided from Stevens Road. The applicant
is proposing to relocate the access west. As proposed the driveway will have a minimum vision
clearance area that is formed by the intersection of the driveway and Stevens Road. Staff
believes this criterion is satisfied.
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: Most of the parking spaces are at least 40 feet from the closest property boundary
and Stevens Road. Two parking spaces are located within the front 30 feet of Stevens Road.
Staff believes the parking spaces within the front 30 space should be contained. As proposed,
all exterior parking spaces will be contained by a curb and defined landscaping areas. In addition,
the applicant proposes either split rail fencing or concrete curbing along the front service drive
and parking area. Staff believes this criterion is met.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 31
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 compact stall shall be eight feet in width and 17 feet in length
with appropriate aisle width.
FINDING: The County standards for stalls and aisles as set forth in Table 1. As designed, the
parking lot and all parking spaces will satisfy the standards set forth in Table 1, including stall
dimensions of 10 feet wide by 20 feet long for the related 90 -degree parking angle.
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.
b. Except as specifically set forth herein, all such parking facilities shall include
at least two sheltered parking spaces or, where more than 10 bicycle spaces
are required, at least 50 percent of the bicycle parking spaces shall be
sheltered.
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 subject property is located outside of an unincorporated community. In addition,
the property is accessed by Stevens Road, which does not contain bikeways such as designated
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 32
bike lanes. The applicant indicates that bicycle use by parishioners to the church's current
location at 61690 Pettigrew Road location is nonexistent and thus unlikely be used by
congregation at the new location outside city limits. Based on this information, staff believes that
compliance with the exceptions criteria is met and no bicycle parking is required.
F. RLUIPA and ORS 215.441
The applicant contends that RLUIPA and/or ORS 215.441 prohibit denial of the use and the site
plan. As I have approved the CUP for the use I will not address the former allegation.
RLUIPA prohibits a government from imposing or implementing a land use regulation in a
manner that imposes a "substantial burden on the religious exercise" of a person or church
unless the government has a "compelling reason" and chooses the least restrictive means. 42
U.S.C. section 2000c.
Nothing in the denial of the site plan imposes a substantial burden on the religious activities of
the applicant. I have found that those activities are allowed and are not incompatible or
disharmonious. The denial is based on the applicant's failure to consider design, layout and
other similar alternatives that would reasonably accommodate its needs and still address the
impacts of the structure and parking lot on surrounding properties. It could be that minor
changes would greatly reduce impacts or that the proposal really is the minimum necessary and
the least impactful. In Corp. of Presiding Bishop v West Linn, 338 OR 453, 111 P3d 1125 (2005)
the Court upheld an arguably much more burdensome denial and concluded that this provision
is violated only if the regulation or denial "`pressures' or `forces' a choice between following
religious precepts and forfeiting certain benefits, on the one hand, and abandoning one or more
of those precepts in order to obtain the benefits, on the other." It favorably cited cases holding
it permissible to deny an application. My site plan denial is based on failure to submit satisfactory
data with the possibility that a modification or more evidence that the proposal is the least
impactful feasible proposal would result in approval.
ORS 215.441 provides that, if a zone permits a nonresidential place of worship, a county must
allow use of the property for the listed activities, including services, classes, weddings, funerals
and childcare. But a county may subject the property to reasonable regulations expressly
including "site review or design review" concerning the physical characteristics of the site.
Nothing in the denial of the site plan precludes or restricts the applicant from conducting any of
the listed activities provided it first demonstrates that the physical space and layout necessary
for those activities is the one that minimizes impacts on views and harmonizes the development
to existing development to the extent reasonably feasible. The legislative history cited by the
applicant does not contradict this and, in fact, seems to stress that the primary limitation is on
regulating religious uses rather than the physical impacts of the proposal.
I find that neither RLUIPA nor ORS 215.441 precludes the county from addressing the impacts
created by the physical attributes of an application for a church as I have sought to do in this
decision.
IV. CONCLUSION
Based on the foregoing findings and conclusions:
1. Application 247 -18 -000063 -LR is APPROVED;
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 33
2. Application 247 -18 -000061 -CU for a church, parking lot and parsonage is APPROVED subject to the
following conditions:
1. 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.
2. This approval is for the uses proposed and those listed in ORS 215.441 (1) (a) -(f) but not
private or parochial school education for prekindergarten through grated 12 or higher. It does not
authorize operation lease or operation of a daycare not affiliated with the church.
3. Any substantial change to the conditional use approval will require a new application. It
is understood, however, that changes to the submitted site plan, including but not limited to building
layout, design, size, location and other physical attributes may be necessary to obtain site plan approval
and this CU approval is not intended to preempt that review process. The site plan may be subject to
conditions of approval, including but not limited to those recommended by staff as described in this
decision.
3. Application 247 -18 -00062 -SP is DENIED for failure to demonstrate compliance with DCC
18.124.060 A., as regards relating harmoniously to existing development and minimizing visual impacts
and DCC18.116.030 F.1.
Done and dated this 30th day of August 2018
Tic /2. 0&44f,
Dan R. Olsen
Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED.
247 -18 -000061 -CU, 247 -18 -000062 -SP and 247 -18 -000063 -LR, Father's House Hearings Officer Decision Page 34
Staff Memorandum
Attachment 2
Map of Subject Property
Deschutes County File Nos. 247 -18 -000061 -CU, 062 -SP, & 063 -LR
21420 Stevens Road, Bend
DAYLILY AVE
a
J
W
C7
Lr
STARLIGHT DR
Hansen
Park
GIBSON DR
s
w
z
T
Subject
Property
Deschutes County GIS, Sources: Esri, USGS, NOAA
Staff Memorandum
Attachment 3
Father's House Church Appeal
APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS
FEE: o7 7/9• C) v
EVERY NOTICE OF APPEAL SHALL INCLUDE: 9/ - • �
1. A statement describing the specific reasons for the appeal.
2. if the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. if color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues. "� { tj
Appellants Name (print): f A �Vl�1(�S tt�;>k-�)� fi=r Phone: ( ) �a�
Mailing Address: (�I�cgC= t ttC �t 1t` � City/StatelZip: � r 0
Land Use Application Being Appealed: 2- i_1 -1 -- d- C 000 Co - —
Property Description: 7:4m--
BY
Y_j%Section 0 Tax Lot 12, d
Appellant's Signature:Date:
SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND
AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR,
AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS
OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND
UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there Is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date
set for receipt of written records.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q%(541) 388-6575 @cdd Cwdeschutes.org ® www.deschutes.org/cd
NOTICE OF APPEAL
The Fathers' House Church of God hereby seeks review of the Hearings Officer's Decision, by the
Board of Commissioners. De Novo review is respectfully requested. The specific reasons for review
are attached. Thank you.
See Attached
(This page may be photocopied if additional space is needed.)
-FHFather's House 67690 Pettigrew Road Bend, OR 97702 (541)382-1632
Pastor Randy Wills Fathershouse. church
mr�M
Via Hand Delivery
Deschutes County Commissioners
Deschutes County, Or
Dear County Commissioners,
Attached please find an appeal application and separate appeal narrative. We have
already provided the County with the requested appeal fee, not fully understanding
the process. With those documents, I believe our appeal is complete.
This year, Father's House Church of God purchased Land in Deschutes County to build
a new church building. In April, a hearing was held with Mr. Dan Olsen presiding. The
Church appreciates Mr. Olsen's time and consideration, and that he approved the
church's conditional use permit, but had a concern about the design.
We respectfully request the Board's De Novo review of the Hearing Officer's decision.
Mr. Olsen's concern was that he wanted the Church to test and explain other
alternative designs. The Church wishes to present its case to the Board, and that
requires a De Novo review and hearing.
Mr. Olsen suggested that the Church meet with the neighbors to see if there are any
design options they would find satisfactory. The Church has enthusiastically agreed to
do so, and has, in fact, already mailed invitations to the neighbors for such a
meeting.
The Church understands that the County feels an extension of the 150 -day processing
period will aid the appeal, and so the Church is willing to grant an extension of the
150 -day processing period. The review and hearing date is time sensitive due to the
need to commence construction of the new building as the congregation is having a
very difficult time in its existing space, which is too small. However, the Church, as a
cooperative citizen, is witting to give the County the time it needs, but hopes, if it is
at all possible, that the processing of an approval decision can be completed soon.
Thank you for your consideration.
Resp�e
Lfully,
Pastor lea /-idyWills
Notice of Appeal to Board of Commissioners
Attachment
Request for Review
Request for De Novo Review
Father's House Church of God
August 8, 2018
This is Notice that Father's House, Church of God Cleveland Inc., (Fathers House) appeals the
Decision of the Hearings Officer in 247 -18 -000062 -SF to the Deschutes County Board of
Commissioners (Board).
Father's House, is the applicant and the property owner. Father's House proposed to build a
Church, on land that it owns, and that is across Stevens Rd. from the DSL owned parcel slated to
be developed into its own town center. Father's House proposal is to accommodate the Church's
growing congregation of 200 people, with 275 congregants during special holidays. The current
Father's House Church is much too small for the existing congregation. There is no dispute
about the fact that the Church's current space constraints are serious and are adversely affecting
the Church's ability to fulfill its religious mission. The Church explained this in detail in the
record. See the Church's Final Written Argument, which is incorporated here by this reference.
The Hearings Officer confirmed that the Father's House lot is a legal lot of record and granted
the Church a conditional use permit to build the needed Church.
But the Hearings Officer denied the Church's site plan and, anomalously, in so doing denied the
Church. The Hearings Officer denied the Church on the basis of the County's "harmonious" site
plan review standard in Deschutes County Zoning Ordinance (DCZO) 18.124.060(A). The
Hearings Officer also denied the Church on the basis that he thought more landscaping and
possibly a fence was necessary to screen parking areas under DCZO 18.116.030(F) in "a small
area between the ADA parking spaces and the septic tank, reserve drainfield, and trash enclosure
Father's House requests the Board to accept review for the reasons outlined below. Generally,
those reasons are that Father's House seeks review because, respectfully, the Hearings Officer
improperly applied and interpreted DCZO 18.124.060(A) and 18.116.030(F) to deny the
proposed Church. A more detailed explanation is below.1
Father's House requests the Board to accept De Novo review for the reasons also outlined below.
In discussions with staff, the Church understands an extension of the 150 -day processing period
would be helpful to the County. Accordingly, Father's House grants the County an extension of
the 150 -day processing period to November 15, 2018 so that the County has time to consider the
Church's appeal. The Church badly needs to start construction on its new building as
overcrowding is a serious problem. Accordingly, it will be greatly appreciated if the Church
may obtain an approval by that date. Thank you.
' It is not clear how much detail is required for a Notice of Appeal.
Page 1 of 10
Reasons for .Review
The following reasons for seeking the Board of Commissioners' review, are respectfully
the following:
The Hearings Officer erred in deciding that Father's House Church had not demonstrated
compliance with DCZO 18.124.060(A). Father's House Church proposal complies with
this standard. The Hearings Officer stated the standard should be applied as follows:
"Ultimately, I think this criterion asks whether the applicant has taken sufficient steps to
ensure that impacts do not create any more disharmony than other uses allowed by right
or conditionally in the MUA-10 zone or the existing uses."' Father's House
demonstrated compliance with this interpretation. Father's House Church does not create
any "disharmony" at all and certainly demonstrated that it does not create more
disharmony than other uses allowed outright and conditionally in the MUA zone.
The Hearings Officer recognized that there was nothing particularly unusual about the
proposed new Church.'
Churches serve residences. Churches have always been established in neighborhoods —
that is what they do.
The Church established, and the Hearings Officer recognized, that a house is allowed
outright in the zone and could be as large and as tall as the proposed Church. a
Father's House demonstrated that the proposed new Church was no bigger or taller than
an agricultural building or riding arena that is allowed in the MUA zone outright. It
demonstrated that the MI1A zone does not limit the amount of lot coverage in the zone,
and that the area to be occupied by the proposed new Church, including its parking
surfaces, are completely consistent with buildings and parking that the MUA zone allows.
The Church demonstrated that its parking was well within the parking provided for other
uses that are allowed in the MUA zone' — a school or hospital is allowed as a conditional
use in the MUA zone, for example. The Church would occupy little to no more space
than the equipment and/or junkyard that occupies a parcel that is just a few properties
away. The Hearings Officer erred in deciding that the proposed Father's House Church
creates "more disharmony than other uses allowed by right or conditionally" in the MUA
zone; or put another way, he erred in deciding that the Church failed to show it would not
"create more disharmony than other uses allowed by right or conditionally" in the MUA
zone.
z Hearings Officer Decision p 17-18.
a Hearings Officer Decision p 13.
a Hearings Officer Decision p 18.
S The Hearings Officer acknowledged that the Crossroads Church that the County previously had approved was 14,325
sq. ft. in size and had 134 parking spaces for a congregation composed of 200 people. Decision p 19.
Page 2of10
The Hearings Officer erred in determining that Father's House Church had not complied
with DCZO 18.124.060(A), as he interpreted it in the following passage: "the applicant
had the burden to demonstrate reasonable efforts to consider alternatives that would
better harmonize its proposal with existing residences in the area, particularly on this
relatively small, flat parcel with no topographical, vegetative or other natural features to
soften its impact. Cf. SP -95-60 (Applicant submitted revised site plan to address this
criterion.)"'
Father's House Church in fact submitted a revised site plan demonstrating it had made
reasonable efforts to consider alternatives that would "better harmonize" the Church with
"existing residences in the area." The Church's revised site plan showed that the Church
significantly reduced its parking from the 118 spaces it felt it needed, to 99 parking
spaces, in order to mitigate impacts; it removed much of its outdoor lighting and reduced
the size of all but a few light poles to small 3' "Bollard" style light fixtures, and ensured
that all of the remaining light poles are outside the line of sight of any residence. The
Church oriented itself to the street to avoid visual impacts. The Church installed
significantly more landscaping — far more than any standard requires -- as a visual buffer.
And the Church selected building materials and a design that was similar to materials
used in construction of houses in the area.
The Hearings Officer erred in deciding: "The applicant simply never really provided
evidence or analysis demonstrating that that it had made reasonable efforts, including
perhaps some trade-offs with its desires, to meet its needs the most harmonious way
reasonably possible. This portion of the criterion is not met."'
The Hearings Officer incorrectly interpreted DCZO 18.124.060(A) to deny the proposed
Church and his interpretation is contrary to ORS 215.416(8) and LUBA law, as well as
QRS 215.427. DCZO 18.124.060(A) does not by its terms require the submittal of serial
site plans (or serial applications) until finally a hearings officer decides, in his discretion,
with no standards to guide him and no standards that advise an applicant how to comply,
that the proposed use "is the Fast impactful feasible proposal [that] would result in
approval."'
As the Hearings Officer interpreted and applied the standard, it is so vague that the
Church has no idea of how to comply in the first place or how it might go about revising
its site plan or how many designs its must show it considered and rejected in order to
comply. Unreasonably vague standards violate ORS 214.416(8)(a).' Relatedly, the
Hearings Officer's interpretation is contrary to the principle LUBA articulated in
Renaissance Development v. City of Lake Oswego, 45 Or LUBA 312, 332 (2003): "Now
that the city has rejected petitioner's approach to complying with LOC 50.16.055(3)(b),
the city must provide petitioner some idea of how it might go about successfully revising
6 Hearings Officer Decision p 19.
' Hearings Officer Decision p 19.
'Hearings Officer Decision p 33.
'See Lee v. City of'Portlund, 57 Or App 798 (1982).
Page 3 of 10
the RC Protection Area so that it will comply with LOC 50.16.055(3)(b). Commonwealth
Properties v. Washington County, 35 Or App 387, 400, 582 P2d 1384 (1978); Salem-
Keizer School Dist. 24-.I v. City of Salem, 27 Or LUBA 351, 371 (1994)."
To the extent the Hearings Officer is saying that a Church applicant must submit serial
modification applications to meet the standard, his interpretation is contrary to
ORS 215.427 which requires an application — here for a Church — to be capable of a final
decision in 150 days. If a Church has to submit serial modifications applications in order
to be approved, it is impossible for any given Church proposal to know that it can gain
approval in any time period, let alone in 150 days as ORS 215.427 requires.10
4. The Hearings Officer's denial of the proposed Church on the basis of the "harmonious"
standard - DCZO 18.124.060(A) — violates ORS 215.441.
a. DCZO 18.124.060(A) is not a "reasonable regulation" that concerns the physical
characteristics of the proposed Church, but rather is in the nature of a highly
subjective neighborhood compatibility type of standard, which is prohibited by
ORS 215.441. The legislative history of ORS 215.441 is consistent with and
supports the plain text reading that ORS 215.441(2) limits local review of church
applications to reasonable regulations that regulate the physical characteristics of
the church or to ensure that public facilities and services are adequate for the
church. Neither are at issue in the disputed "harmonious" standard that the
Hearings Officer used to deny Father's House Church. There is no dispute that the
Church proposal meets all public facilities and services requirements. The
legislative history for ORS 215.441 demonstrates that the legislature's omission of
any provision allowing for review of church applications for being "harmonious"
with the surrounding neighborhood, or to deny an application on such grounds, was
intentional. The legislature was fully aware that it was withholding that authority
from local governments when it enacted ORS 215.441 because local government
organizations expressly stated that adoption of the bill would deprive them of that
authority.
To the extent that this standard requires Churches to submit serial designs it has
rejected and why it rejects them and serial site plans in a sort of pin -the -tail -on -the -
donkey process, where it never can know what site plan is going to strike any
particular hearings officer as sufficiently "harmonious", or requires the submittal
of serial modification applications seeking to place the application pin where a
Church guesses that a particular hearings officer might think best, it is not a
"reasonable regulation" as required by ORS 215.441 under any understanding of
that term.
Compounding this problem is that each of the required serial site plans that the
challenged decision says the Church is required to submit in order to comply with
the standard, will also have to demonstrate compliance with all other standards,
10Such an interpretation is also contrary to ORS 215.441, RLUIPA, and the U.S. Constitution First Amendment as
being decidedly unreasonable and burdensome, if not hostile, as explained below.
Page 4 of 10
including, as the Hearings Officer specifically notes, DCZO 18.116.030(F)(1),
which he also used to deny the proposed Church, and which similarly is vague and
unclear as to how it was applied in this case.
5. DCZO 18.124.060(A) is contrary to RLUIPA. DCZO 18.124.060(A) is contrary to the
federal Religious Land Uses and Institutionalized Persons Act (RLUIPA) because:
It is an unreasonable regulation, at least as how it was applied here. The
Hearings Officer correctly points out that it is "`highly subjective' and
difficult to apply".' It is impossible for the Church to know how it would
go about demonstrating compliance with this standard, as this case
illustrates. The Hearings Office described the standard as follows:
""Ultimately, I think this criterion asks whether the applicant has
taken sufficient steps to ensure that impacts do not create any more
disharmony than other uses allowed by right or conditionally in
the MUA-10 zone or the existing uses. * * * that the applicant
demonstrate that it has taken reasonable and feasible steps to make
the use fit into the neighborhood through design, layout, location
and other factors and expressly that the applicant minimizes
primarily visual impacts. [T]his criterion considers only existing
development and natural features." Hearings Officer Decision p
17-18.
The Hearings Officer said the "Harmonious" standard required the Church to
demonstrate that the "proposal is the least impactful feasible proposal [that] would
result in approval."12
In response to this standard, Father's House Church demonstrated compliance as best it
could: the Church established (with evidence the Hearings Officer acknowledges) that a
home that was just as tall and just as large, is a use that is permitted outright in the zone.
The Church demonstrated that a riding arena or other agricultural building could be
developed on the subject property that was just as large (if not larger) and just as tall.
The Hearings Officer agreed the proposed Church was not a "mega -church" and is "not
significantly disproportionately larger than other churches referenced in the record"13;
the Church submitted a revised site plan in which it significantly reduced its parking
from the 118 spaces it felt it needed, to 99 parking spaces, in order to mitigate impacts;
it removed much of its outdoor lighting and reduced the size of all but a few light poles
to small 3' "Bollard" style light fixtures, and ensured that all of the remaining light poles
I l Hearings Officer Decision p 17.
12 Hearings Officer Decision p 33.
13 Hearings Officer Decision p 13. He went so far as to point out that other Churches which the County has approved
are the same size for a similar number of congregants, but with far more parking — 135 spaces for the similarly sized
Church the Hearings Officer cites, compared to the 99 spaces Father's House's revised site plan showed. Decision p.
19.
Page 5 of 10
are outside the line of sight of any residence. The Church oriented itself to the street to
avoid visual impacts.
The Church installed significantly more landscaping — far more than any standard
requires -- as a visual buffer. And the Church selected building materials and a design
that was similar to materials used in construction of the design of houses in the area.
Yet still, that wasn't good enough. Instead, the Hearings Officer decided: "the applicant
had the burden to demonstrate reasonable efforts to consider alternatives that would
better harmonize its proposal with existing residences in the area, particularly on this
relatively small, flat parcel with no topographical, vegetative or other natural features to
soften its impact. Cf. SP -95-60 (Applicant submitted revised site plan to address this
criterion .),,14 But the Church did submit a. revised site plan attempting to comply and it
is not evident what is wrong with that revised site plan under this standard.
It is unreasonable under RLUIPA to require the Church to submit serial site plans and
designs with no way to know what will be good enough. Similarly, it is unreasonable to
apply a standard the compliance target for which changes based upon the subjective
feelings of neighbors in a particular case. Presumably, a Church proposal that is not
opposed would not have to go through the serial revision process the challenged
decision contemplates, making the standard a moving target and, as such, unreasonable.
The application of the "harmonious" standard is especially a very substantial burden in
this case if the challenged decision means that each of the contemplated serial designs
results in a "modification" r' of the initial application such that a Church has to start over
every single time an opponent shows up and when that happens the Church must offer a
new design and offer up some number of designs that it has rejected and the reasons why
they are rejected, and is thereby thrown into an endless process with the 150 day
processing period becoming wholly illusory. If that is what the decision decides is
" Hearings Officer Decision p 19.
" The Hearings Officer stated: "My site plan denial is based on failure to submit satisfactory data with the
possibility that a modification or more evidence that the proposal is the least impactful feasible proposal would
result in approval." Decision p 33. We hope he means that more evidence in the context of an appeal to you, the
Board of Commissioners, is allowed rather than starting over with a "modification" application for each site plan
revision. But we can't be sure. The DCZO describes a "Modification" as follows: "Modification of application"
means the applicant's submittal of new information after an application has been deemed complete and prior to the
close of the record on a pending application that would modify a development proposal by changing one or more of
the following previously described components: proposed uses, operating characteristics, intensity, scale, site lay out
(including but not limited to changes in setbacks, access points, building design, size or orientation, parking, traffic
or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the
proposal or that would require the findings of fact to be changed. It does not mean an applicant's submission of new
evidence that merely clarifies or supports the pending application." In turn DCZO 22.20.055(B) says: "The
Planning Director or Hearings Body shall not consider any evidence submitted by or on behalf of an applicant that
would constitute modification of an application (as that term is defined in DCC 22.04) unless the applicant submits
an application for a modification, pays all required modification fees and agrees in writing to restart the 150 -day
time clock as of the date the modification is submitted. The 150- day time clock for an application, as modified, may
be restarted as many times as there are modifications."
Page 6 of 10
required by the County code, then the challenged decision is unreasonable under
RLUIPA on this basis as well.
ii. The challenged decision is unlawful under RLUIPA because it imposes a substantial
burden on the Church, without demonstrating a compelling state interest furthered by the
least restrictive means, because: (1) Father's House has an undisputed, serious
inadequate space issue and its lack of space to serve the religious needs of its
congregation is significantly adversely affecting its ability to further its religious
mission. Father's House has looked for years for other locations and the subject site is
the only location available that meets its needs in the area it serves — other than one
other available parcel next to the subject location which will have all the same issues.'
(2) Churches are always going to be different than residential uses in the MUA zone —
by their nature they are large buildings where people assemble together to worship and
will find it impossible to know how to comply with this of standard, (3) itis extremely
burdensomely expensive to be required to hire architects and designers to come up with
site plan after site plan hoping that one will meet this "highly subjective and difficult to
apply" standard; not to mention the costs of lawyers, planners, civil and transportation
engineers to evaluate and demonstrate each successive design continues to meet all other
standards that also apply, and (4) the delay associated with the process that the
challenged decision requires unreasonably interferes with the Church's ability to fulfill
its religious mission.
iii. The challenged decision is unlawful under RLUIPA's "exclusions and limits" clause
because churches are not allowed outright anywhere in the County under the DCZO and,
as interpreted here, the County has virtually standardless discretion to approve or deny
Church proposals and as demonstrated in this case, in denying the proposed Church
here.
iv. For all of the above reasons that the challenged decision violates ORS 215.441 and
RLUIPA, the challenged decision also violates the United States and Oregon
Constitutions. The arguments above regarding ORS 215.441 and RLUIPA are
incorporated herein by this reference. The right to worship according to one's
conscience and to assemble together to worship is a "fundamental right" protected by
the First Amendment to the United States Constitution and by the Oregon Constitution
Article 1, Sections 2, 3, 4, 5, 8 and 26. The challenged decision unreasonably and
impermissible interferes with these protections by subjecting Churches to a highly
discretionary, difficult to apply land use standards, that one can never know how to
comply with.
6. The challenged decision improperly applied DCZO 18.116.030(F)(1) to deny the
proposal. The standard says:
'& There is no zone in the entire county that authorizes a Church as a use permitted outright. This is a problem under
a separate RLUIPA provision discussed later in this appeal notice.
Page 7 of 10
This standard simply says that parking is to be "effectively screened * * * when "adjacent to
residential uses." All parking areas on the Church's site plan are sited in the southern part of the
property along Steven's Rd. The parking areas are not "adjacent" to any residential uses. Thus,
because there is no "parking area" that is "adjacent" to any residential use, including in the
"small. area" that the Hearings Officer refers to, and that was the basis for his denial decision, he
erred interpreting this standard as a basis for denial.
The Hearings Officer also erred in that he did not explain how he interpreted this standard and it
is not clear bow he interpreted the standard, other than he said that the standard meant the
Church proposal would be denied.
The Hearings Officer stated only:
I have reservations about the hearings officer interpretation cited by staff in the footnote. It seems
to me that if the provision was intended to apply to all parking areas on all parcels adjacent to
residential parcels it would simply so state. It may be that it was intended to apply to parking lots
near the boundary with a residential parcel, although that creates the problem of determining
when it is "near enough to mandate buffering. I do think that it relates to the location of the
residence on the parcel.
All parking areas are adjacent only to Stevens Rd. and the parsonage on the subject property.
And regardless, all parking areas are "effectively screened" from residential uses in the area
either by sheer distance or by the dense proposed landscaping or the proposed Church building
itself. Here again, the challenged decision applies a standard in an unreasonable and vague way
making it impossible to know how to comply.
Making matters worse, in the challenged decision building upon his requirement that the Church
begin submitting serial site plans for review on appeal or serial modification applications, the
Hearings Officer observes that if the Church complies with his requirement that it submit various
alternative designs, that such affects the Church's compliance with other standards, including
DCZO 18.116.030(F)(1):
"If the applicant were to propose moving the church close to Stevens so it does
not buffer the parking lot, other buffering would be necessary." 17
Please understand the Church does not object to providing a fence or more landscaping along the
"small area" to resolve the Hearings Officer's concern. But the Hearings Officer's desire for a
fence or landscaping that the Church is wholeheartedly willing to provide, is not the equivalent
"Hearings Officer Decision p 30.
Page 8 of 10
of a requirement for such fence or additional landscaping that provides a basis for denial. It is
respectfully submitted that the screening of the parking areas for the proposed Church meets the
requirement of DCZO 18.116.030(F)(1) and the Hearings Officer erred in deciding otherwise.
7. The denial of the Church proposal on the basis of DCZO 18.116.030(F)(1) violates
ORS 215.441 because it is not a reasonable regulation, as ORS 215.441 requires. It is
unreasonable because its meaning that it applies to residential uses that are not adjacent to
parking areas is not evident from its express terms. Its application in this case is
unreasonable because it is applies in a way that is not consistent with its express terms
and in a way that is reasonably possible to know what it does mean. Rather, the
application of DCZO 18.116.030(F)(1) in this case begins with the premise that more
landscaping or a fence is simply desired for a small area and works backwards to find the
Church's site plan violates DCZO 18.116.030(F)(1) without such fence or landscaping;
without ever determining that there is a parking area adjacent to a residential use that is
not screened.
8. The denial of the proposal on the basis of DCZO 18.116.030(F)(1) violates RLUIPA
similarly because it not a reasonable regulation as RLUIPA requires. The arguments
for why the denial under DCZO 18.116.030(F)(1) violates ORS 215.441 as an
unreasonable regulation in Paragraph 7 above is incorporated herein by this reference.
9. The denial of the proposal on the basis of DCZO 18.116.030(F)(1), violates RLUIPA
because it imposes a substantial burden on Father's House Church without demonstrating
a compelling governmental interest furthered by the least restrictive means available. It
imposes a substantial burden because it is unreasonably vague as explained above.
Attempts to comply with this standard, when coupled with the attempts to comply with
the Hearings Officer's view of the "harmonious" standard in DCZO 18.124.060(A) for
additional designs and site plans and explanations of what works and what doesn't and
why, means the Church is required to attempt to comply with vague standards that will
create differing targets each time the Church makes any change in an effort to comply.
This is a substantial financial burden and well as results in unreasonable delay in the
Church's ability to resolve its serious space constraints which, as explained in the
evidentiary record below, is significantly adversely affecting its religious mission.
Reasons for Requesting De Novo Review
The Hearings Officer's bases for denial require an evidentiary de novo hearing on appeal. The
challenged decision requires the church to come up with straw men different designs and
different site plans and explain why they don't work and to meet with the opponents and make
design changes to the Church that the opponents want, that the Church can reasonably make and
make the opponents happy and still reasonably function as the Church needs, and then to submit
those revised site plans. This requires de novo review so that the Church can attempt to
demonstrate compliance with DCZO 18.124.060(A) and DCZO 18.116.030(F)(1) in the way the
Hearings Officer required.
Page 9 of 10
The Church will meet with opponents and will do its best to demonstrate what the Hearings
Officer said was needed. That is, by its nature, an exercise that requires an evidentiary, de novo,
review so that the Church can explain why various designs won't work and to show at least one
required alternative that it thinks will work that makes opponents happy or at least happier, and
the requested fencing in the "small" area and better explain why other alternatives don't work.
De Novo review will not cause the County to exceed the 150 -day time limit. Concerning the
150 -day issue, the Church does not understand what is meant by DCZO 22.32.027(B)(2)(d):
"For the purposes of DCC 22.32.027, if an applicant is an appellant, factor DCC
22.32.027(B)(2)(a) shall not weigh against the appellant's request if the applicant
has submitted with its notice of appeal written consent on a form approved by the
County to restart the 150 -day time clock as of the date of the acceptance of
applicant's appeal."
Given that the Church has agreed to extend the 150 -day period to November 15, 2018, it appears
this provision does not apply because the applicant complies with (13)(2)(a) by granting the 150 -
day waiver (in an amount that, in consultation with staff, the County thought would be
appropriate). If to have this appeal heard at all, The Church must allow a total restart of the 150 -
day clock, it will do that; but the Church hopes that is not required to do that because such a
restart would further delay the Church's ability to resolve the significant burden the church is
experiencing with overcrowding.
Review is not hampered by the absence of an audio recording of the hearing. An audio recording
is available.
Because of the nature of the Hearings Officer's decision a de novo evidentiary hearing is
required because what he said was needed is an additional site plan and reasons why other site
plans won't work. That is evidence that is new. De Novo review is not necessitated by the
failure of the Church to present evidence that was available at the time of the Hearings Officer
review. The Church did not know and could not reasonably know that the Hearings Officer
would interpret DCZO 18.124.060(A) to require more site plan revisions and more reasons for
the Church site being designed as it is in order to comply with DCZO 18.124.060(A),
The Board's review is necessary to address a significant policy issue relevant to the approval of
the proposed Church. The significant policy issues are the proper interpretation and application
of DCZO 18.124.060(A) to a Church given ORS 215.441, RLUIPA, Constitutional protections at
stake, as well as the proper interpretation and application of DCZO 18.116.030(F)(1).
Thank you for your consideration of the Church's request.
Page 10 of 10
Staff Memorandum
Attachment 4
Order No. 2018-055
REV EWE
LE L COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer
Decision in File No 247 -18 -000062 -SP (247-18- * ORDER NO. 2018-055
000624-A)
WHEREAS, on August 6, 2018, Father's House Church/Church of God Cleveland appealed (247-18-
000624-A) the Hearings Officer's decision on File No. 247 -18 -000062 -SP; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board will review/hear 247 -18 -000062 -SP (247-18-000624-A) pursuant to Title 22 of the
Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The appeals shall be heard de novo in order to afford the Board the utmost discretion with
which to interpret the Deschutes County Code and any other land use criteria at issue.
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 15' of August, 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGE 1 of 1- ORDER No. 2018-055
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
VV WE
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declining Review of Hearings Officer
Decision in File No. 247 -18 -000062 -SP (247-18- * ORDER NO. 2018-055
000624-A)
WHEREAS, on August 6, 2018, Father's House Church/Church of God Cleveland appealed (247-18-
000624-A) the Hearings Officer's decision on File No. 247 -18 -000062 -SP; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board will not hear 247 -18 -000062 -SP (247-18-000624-A) pursuant to Title 22 of the
Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The appellants shall be granted a refund of some of the appeal fees pursuant to DCC 22.32.015.
Dated this 15"' of August, 2018
ATTEST:
Recording Secretary
PAGE 1 OF 1- ORDER No. 2018-055
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
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EVERY NOTICE OF APPEAL SHALL INCLUDE:
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1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Appellant's Name (print):,` t ,'> � _` _tie ` �t_: C -I. G7Phone: ( S' kl ) 3 I G 5-c�
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Land Use Application Being Appealed: 000 0 — c
Property Description: Township 1 Range _._ Section. r7 /f Tax Lot 1 Z U S
__Date:Appellant's Signature:........
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BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND
AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR,
AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS
OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND
UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date
set for receipt of written records.
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
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CONDITIONAL USE APPEAL (247 -18 -000061 -CU)
1. Incorrect Interpretation and Application of DCC 18.128.015(8)
The Hearings Officer's adoption of the historic interpretation of DCC 18.128.015(B) is incorrect. DCC
18.128.015(B) states that the proposed use shall be compatible with existing and projected uses on
surrounding properties based on factors listed in DCC 18.128.015(A), i.e. site, design and operating
characteristics of use.
The historic interpretation as explained in the staff report and adopted by the HO is that "...the existing
and projected 'use' on surrounding lands will be allowed to continue"; that the proposal would not
"preclude or severely impact whether surrounding properties may continue to be used for their existing
use".
This is incorrect because it renders the intent of the ordinance meaningless. Specifically, the historic
interpretation would, in essence, require the physical invasion of surrounding properties because
existing and projected uses will always be able to continue unless a conditional use on the developing
property encroaches to render that use impossible. For example, someone could place a 5 -story hotel
on the subject property, adjacent owners, though, would be able to continue to use their property for
residential purposes. This use would be incompatible in a rural area, but under the "historic"
interpretation, it would be allowed. Or someone could put a sewage treatment facility on the subject
property, but until waste leaks onto adjacent property (or some other physical invasion occurs), the
adjacent owner will not be precluded from using his or her house.
The HO's own example of a landing strip underscores how the historic interpretation fails. In Deschutes
County, there are already landing strips near residential uses. This shows that there is nothing about an
landing strip that necessarily precludes an adjacent residential property owner from continuing to use
their property for residential purposes. Thus, under the historic interpretation, there would be no basis
to deny an landing strip under this provision, despite the fact the HO assumes neighbors would be able
to show an landing strip is incompatible.
The bottom line is the historic interpretation renders the provision meaningless. Despite the clear
intention to require combability and provide protection to existing and projected development, under
the historic interpretation, no such protections exist. The hearings officer was correct when he noted
the historic interpretation is "too crabbed."
A proper interpretation of this criteria must consider all of the language in the code provision. In this
case, as explained in Will Van Vactor's April 24, 2018, submittal, the code provision expressly requires
consideration of design and operating characteristics. By requiring that the design be compatible with
the surrounding uses, the express language requires consideration of whether the design is compatible
with surrounding uses. In other words, since the code requires consideration of design, the decision
maker must consider more than whether the proposed use will preclude adjacent existing uses from
continuing.
Such interpretation is consistent with Karen Green's church decision from 2000. She took into account
design of the church and compared it to nearby buildings. She correctly did not consider whether the
church use would "preclude" existing uses on nearby lands. The 2000 case was attached to Mr. Van
Vactor's April 24, 2018, submittal. Thus, the Hearings Officer's implication that his interpretation is the
only historic interpretation is not correct.
In this case, as outlined in our prior submittals, the church is not compatible for the following reasons —
1. Operational characteristics and intensity of use in relation to surrounding rural residential properties.
Two to three hundred people, and associated vehicle traffic, imposed upon a quiet rural neighborhood,
even once a week, is not compatible. This does not take into consideration the associated activities that
can be expected to occur—weddings, congregation wide meetings, youth groups and social services
groups, etc.
2. Incompatibility due to size in relation to existing residential uses. The largest structure within the
viewshed is 3600 SF, the average is around 2300 SF. This proposed structure would be 4 to 6 times
larger than any residences in the neighborhood.
3. The structure would dominate the landscape and views due to level, open topography. There is
nothing even close to this size within the viewshed and the topography would not allow it to be
effectively screened in any real way. It would be the most prominent feature in the rural landscape.
4. Development would compromise the preservation of open space and rural characteristics due to
scale and intensity of use.
For the above reasons, we appeal the Hearings Officer's finding that the proposed use meets the
conditional use criteria in DCC 18.128.015(B).
2. Violation of Due Process
We also appeal the Hearings Officer's open record period re -set order as described in his Order dated
May 22, 2018, and as clarified by his email to Adam Smith dated May 31, 2018. We believed, as did
staff, that the Hearings Officer's order reset the open record period. See Mr. Van Vactor's May 30, 2018
email. As explained in Mr. Van Vactor's June 1, 2018 email to the Hearings Officer, we were not
afforded a meaningful opportunity to be put on a fair playing field.
By way of background, the reset open record period was the result of the applicant using county
resources not available to the public. Specifically, the applicant had a member of the church, who
happens to be a senior planner, obtain info not publicly available. As a consequence of the Hearings
Officer's unclear order and staff's interpretation (which we agreed with), we were not able to fully act
on County Counsel's efforts to make the process fair and we have been substantially prejudiced.
Consequently, we ask the Board to deny the conditional use application and give the applicant
instruction to reapply. This will afford all concerned parties a fair chance to participate in the
proceeding.
This document was prepared by Julie Noslund and Will Van Vactor
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer
Decision in File Nos. 247 -18 -000061 -CU and x ORDER NO. 2018-055
247 -18 -000062 -SP (247-18-000624-A and 247-
18-000643-A)
WHEREAS, on August 6, 2018, Father's House Church/Church of God Cleveland appealed (247-18-
000624-,) the Hearings Officer's decision on File No. 247 -18 -000062 -SP; and
WHEREAS, on August 13, 2018, Julie Naslund et al., appealed (247-18-000643-A) the Hearings
Officer's decision on File No. 247 -18 -000061 -CU; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board will review/hear 247 -18 -000061 -CU and 247 -18 -000062 -SP (247-18-000624-A
and 247-18-000643-A) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the
County land use ordinances.
Section 2. The appeals shall be heard de novo in order to afford the Board the utmost discretion with
which to interpret the Deschutes County Code and any other land use criteria at issue.
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 15°i of August, 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGe l or l - ORDER No. 2018-055
ANTHONY DEBONF,, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
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 August 15, 2018
DATE: August 7, 2018
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
Potential Marijuana Production Appeal, 22280 Jason Road, and Consideration of Order
2018-059
RECOMMENDATION & ACTION REQUESTED:
Consider signature of Board Order 2018-059 to act as the Hearings Body in a potential
appeal of a marijuana production/processing application.
ATTENDANCE: Will Groves
SUMMARY: Staff has approved an application for an Administrative Determination and Site
Plan Review to establish a marijuana production and processing facility in the Exclusive Farm Use
Zone. The applicant is requesting up to 10,000 square feet of maximum mature canopy area and
an 800 square foot processing area in an 11,131 square foot structure. Staff presents an order for
the Board to act as the Hearings Body in the event of an appeal of the administrative decision for
the Board's consideration.
C Of," h. iMiTY DEV [.OPMEN1111,
STAFF MEMO
Date: August 7, 2018
To: Board of County Commissioners
From: Will Groves, Senior Planner
Re: Administrative Decision (File Nos. 247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18-
000200 -SP) to Hear Potential Appeal
The Board of County Commissioners (Board) will conduct a work session on August 15 at 1:30 PM
and will consider hearing a potential appeal of an administrative decision (File Nos. 247 -18 -000198 -
AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP) approving a marijuana production and processing
application.
1. Application and Decision
Staff has approved an application for an Administrative Determination and Site Plan Review to
establish a marijuana production and processing facility in the Exclusive Farm Use Zone. The
applicant is requesting up to 10,000 square feet of maximum mature canopy area and an 800
square foot processing area in an 11,131 square foot structure.
The Planning Division issued a decision (Attachment 1) without a public hearing determining the
applicant met the applicable criteria. Notice of the decision was sent to neighboring property
owners and those that provided comments. The decision becomes final if not appealed by 5:00 PM
on August 20, 2018.
Il. Appeal
Staff considers an appeal may be likely based on public comments received from a neighbor.
III. 150 -day Issuance of a Final Local Decision
The 150 -day period for issuance of a final local decision is October 10, 2018.
117 NW I afayecte Aveliue, Bend, Oregon 97703 1 P.O. Box 6905, Bend, OR 97708-600`0
Q (541) 333-6575 @ cdci@deschutes .org @ www.deschutes.org/cd
IV. Board Options
Section 22.28.050 of the Deschutes County Code authorizes the Board of County Commissioners to
initiate review of any administrative action or a Hearings Officer's decision within 12 days of the
date of mailing of the final written decision of the Planning Director or lower Hearings Body. The
12`h day following the mailing date of this decision falls on Sunday, August 19, therefore, in
accordance with DCC 22.08.070 an appeal must be filed no later than 5:00 PM on Monday, August
20.
Included is a Board Order to initiate a de novo review of this file, should a timely appeal be filed.
Attachments:
1. Administrative Decision for File No. 247 -17 -000827 -AD
2. Area Map
3. Board Order 2018-09
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 2 of 2
ppq
FILE NUMBER:
APPLICANT:
OWNER:
I_« -011 i1
FINDINGS & DECISION
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP
Ohana Grown, LLC
Tiorati Mgt, LLC
Jeremy Dickman, Clifton Cannabis Law LLC
PROPOSAL: An application for an Administrative Determination and Site Plan
Review to establish a marijuana production and processing facility in
the Exclusive Farm Use Zone. The applicant is requesting up to 10,000
square feet of maximum mature canopy area and an 800 square foot
processing area in an 11,131 square foot structure.
LOCATION: The subject property has an assigned address of 22280 Jason Road,
Bend and is identified on County Assessor Tax Map 17-13-30A as Tax
Lot 500.
STAFF CONTACT: Will Groves, Senior Planner
541-388-6518, william.groves@deschutes.org
DOCUMENTS: Can be viewed and downloaded from:
www.buildingpermits.oregon.gov and http://dial.deschutes.org
APPLICABLE CRITERIA
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use (EFU) Zones
Chapter 18.80, Airport Safety Combining Zone
Chapter 18.116, Supplementary Provisions
Chapter 18.124, Site Plan Review
Title 22, Deschutes County Development Procedures Ordinance
II. BASIC FINDINGS
1 1 7 PJVV I afaye[te Avenue, Bend, Oregon 97703 1 P. O. Box 6005, Bend, OR 97708-6005
did -1) 388-6575 (cPJd@)desd iuLes . orb @www, deschu-Les. orb/cd
A. LOCATION: The subject property has an assigned address of 22280 Jason Road, Bend and is
identified on County Assessor Tax Map 17-13-30A as Tax Lot 500.
B. LOT OF RECORD: The subject property is a legal lot of record because it was platted as Parcel
1 of Partition Plat 1991-21.
C. ZONING: The property is zoned Exclusive Farm Use (EFU-TRB) and Airport Safety (AS)
Combining Zone.
D. PROPOSAL: The applicant requests approval of an Administrative Determination to initiate
a marijuana production facility on the subject propertyto the maximum mature plant canopy
area of 10,000 square feet. The applicant is also requesting an Administrative Determination
and Site Plan review for a new marijuana processing facility.
E. SITE DESCRIPTION: The subject property is 40.1 acres in size and square in shape. The
property is accessed from Jason Road, a rural local road. The topography slopes gently
upward from Jason Road and has a cover of native vegetation and pasture land. The subject
property is developed with an existing dwelling.
F. PUBLIC AGENCY COMMENTS: The Planning Division mailed a Notice of Application and
received comments from the following agencies:
1. Deschutes County Building Division: Notice: The Deschutes County Building Safety
Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 2 of 40
Water Supplies, etc., must be specifically addressed during the appropriate plan review
process with regard to any proposed structures and occupancies. Accordingly, all
Building Code required items will be addressed, when a specific structure, occupancy,
and type of construction is proposed and submitted for plan review.
2. Central Oregon Irrigation District:
COID FACILITIES:
• COID has no facilities on the property
• There are multiple private irrigation ditches on the property.
• No alterations to ditches that convey water to neighboring properties is
allowed.
COID WATER RIGHTS:
• Subject's property has 10.0 acres of COID water rights
• Please contact COID concerning use of water rights.
COID GUIDELINE STATEMENT
• Review the following statement
COID response to Community Development Notice for Proposed Marijuana Production:
Central Oregon Irrigation District (COID) serves this property with 10.0 acres of irrigation
water during the irrigation season of April 1 st through October 31 st at a rate of up to 6
gallons per minute per acre. This water cannot be used for irrigation during the winter
months. An additional source (not COID) of water is necessary to irrigate between
November 1st and March 31st. If the recreational marijuana production facility is a
greenhouse or other structure proposed to be built on top of the COID water right, land -
user must allow COID annual access to the structure to document beneficial use of the
water right. Structures on top of a water right for any purpose other than growing plants
is not allowed.
Applicant should contact COID to determine status of water rights prior to
construction of production facility.
• Plot Plan is required to assist COID in determining if the proposed structure will be
located on the water right or if a water transfer application is needed to transfer water
to it.
3. Deschutes County Assessor: The subject property is in farm deferral.
4. Deschutes County Planning Division: Peter Russell, Senior Transportation Planner,
provided the following comments:
No traffic study is required.
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 3 of 40
The applicant will need to either provide proof of an existing access permit to Jason Road
from the County or be conditioned as part of the land use process to get one in order to
comply with Deschutes County Code (DCC) 17.48.210(A).
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate
of $3,937 per p.m. peak hour trip. The Board has approved the use of Warehouse (LU
150) for marijuana production and Manufacturing (140) for marijuana processing from
the ITE classifications to determine the p.m. peak trips and then determine the SDC.
Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet and Manufacturing
generates 0.73 p.m. peak hour trips per 1,000 square feet. The production would produce
3.56 p.m. peak hour trips (11.131 X 0.32); processing would produce 0.43 p.m. peak hour
trips (0.592 X 0.73). The combined uses would generate p.m. peak hour trips 3.99 (3.56
+ 0.43); the resulting SDC is $15,709 (3.99 X $3,937). The SDC is due prior to issuance of
certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is
due within 60 days of the land use decision becoming final.
STAFF RESPONSE: Driveway permit 247 -18 -001829 -DA has been submitted.
5. Bend Fire Department:
FIRE APPARATUS ACCESS ROADS:
• Approved fire apparatus access roads shall be provided for every facility, building or
portion of a building hereafter constructed or moved into or within the jurisdiction.
The fire apparatus access road shall comply with the requirements of this section
and shall extend to within 150 feet of all portions of the facility and all portions of
the exterior walls of the first story of the building as measured by an approved
route around the exterior of the building or facility. 2014 OFC 503.1.1
• Fire apparatus roads shall have an unobstructed width of not less than 20 feet,
exclusive of shoulders, except for approved security gates in accordance with
Section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6
inches
• Fire apparatus access roads shall be designed and maintained to support the
imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced
(asphalt, concrete or other approved driving surface) as to provide all weather
driving capabilities. Inside and outside turning radius shall be approved by the fire
department. All dead-end turnarounds shall be of an approved design. Gates
intended for automatic operation shall be designed, constructed and installed to
comply with the requirements of ASTM F 2200. A Knox® Key Switch shall be
installed at all electronic gates. 2014 OFC D102.1, 503.2.4,
FIRE PROTECTION WATER SUPPLIES:
An approved water supply capable of supplying the required fire flow for fire
protection shall be provided to premises upon which facilities, buildings or portions
of buildings are hereafter constructed or moved into or within the jurisdiction.
2014 OFC 507.1
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 4 of 40
• Fire flow requirements for buildings or portions of buildings shall be determined by
an approved method. Documentation of the available fire flow shall be provided to
the fire code official prior to final approval of the water supply system.
• In areas without water supply systems, the fire code official is authorized to use
NFPA 1142 in determining fire flow requirements. 2014 OFC B107.1
OTHER FIRE SERVICE FEATURES:
• New and existing buildings shall have approved address numbers, building
numbers or approved building identification placed in a position that is plainly
legible and visible from the street or road fronting the property. Address signs are
available through the Deschutes Rural Fire Protection District #2. An address sign
application can be obtained from the City of Bend Fire Department website or by
calling 541-388-6309 during normal business hours. 2014 OFC 505.1
Hazard Communication:
• Material Safety Data Sheets shall be on property and made easily accessible to the
fire code official.
• Containers and/or packages related to hazardous materials shall be properly
labeled and warning signage shall be properly displayed and easily visible.
• All persons shall be trained on what to do in the event of an emergency involving
hazardous materials on the property.
Building and Equipment Design Features
• Interior finishes (Visqueen® or Mylar® type plastic/polyethylene or polyester to
cover walls and ceilings) must comply with flame spread ratings in accordance with
Table 803.3 of the 2014 Oregon Fire Code.
Exits and Exit Signage, Egress:
• Means of egress shall not be concealed in any way. Section 1008.1 of the 2014
Oregon Fire Code.
• Exit doors and their function shall not be eliminated or modified in any way without
prior approval of the Building Official. Section 1001.2 of the 2014 Oregon Fire Code.
• Security measures shall not conflict with the maintenance and operation of exiting
and egress.
Locks and Key Box:
• Gates across fire apparatus access road shall be approved by the fire code official.
Section 503.6 of the 2014 Oregon Fire Code.
• The installation of a Knox Box® and/or Knox® Key Override shall be installed to
provide rapid entry. Section 506.1 of the 2014 Oregon Fire Code.
• Slide bolts and security bars installed on emergency egress doors are prohibited.
Section 1008.1.9.4 of the 2014 Oregon Fire Code
• Provide 10 Ib. ABC 4A:80B:C portable fire extinguishers through the facility to
achieve a maximum travel distance of no more than 75 feet to each fire
extinguisher. Section 906.1 of the 2014 Oregon Fire Code.
• Provide information to the fire code official on the use of Carbon Dioxide and
Carbon Dioxide generators related to the marijuana production operation. The use
of Carbon Dioxide or Carbon Dioxide Generators creating an asphyxiation hazard
shall require monitoring, detection and an audible alarm. Chapter 50 of the 2014
Oregon Fire Code.
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 5 of 40
The following agencies did not respond or had no comments: Bend Municipal Airport,
Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes
County Road Department, Oregon Dept. Of Aviation, Pacific Power & Light, and Watermaster
- District 11.
G. PUBLIC COMMENTS: The Planning Division mailed a written notice of these applications to
property owners within 750 feet of the subject property on March 6, 2018. In addition, the
applicant submitted a Land Use Sign Affidavit indicating a proposed land use action sign was
posted on the property on March 19, 2018. Below, staff summarizes issue areas identified
by the public in written comments received prior to the date of this decision:
Opposition:
1. Odor
2. Adjacent non -licensed indoor/outdoor child classes/activities.
3. Water source
4. Property Value
STAFF COMMENT: Applicable criteria of the DCC are addressed below. The Deschutes
County Code (DCC) does not include approval criteria related to marijuana production in
regards to the issue area listed in #4 above. For this reason, staff does not address this issue
in this decision.
H. REVIEW PERIOD: This application was submitted on February 27, 2018. It was deemed
incomplete on March 26, 2018. After the applicant submitted additional information, the
application was accepted and deemed complete on April 27, 2018. The application was also
tolled for 16 days. The 150th day on which the County must take final action on this
application is October 10, 2018.
III. FINDINGS:
A. CHAPTER 18.16. EXCLUSIVE FARM ZONE
Section 18 16.020. Uses Permitted Outright.
The following uses and their accessory uses are permitted outright.
S. Marijuana production, subject to the provisions of DCC 18.116.330.
FINDING: The applicant is proposing to site a marijuana production facility and establish a new
processing facility on the subject property, a use permitted outright subject to compliance with the
applicable provisions of DCC 18.116.330. Compliance with the provisions of DCC 18.116.330 is
addressed below.
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 6 of 40
2. 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.
1. A facility for the processing of farm crops, or for the production of biofuel as
defined in ORS 315.141, if the facility is located on a farm operation that
provides at least one-quarter of the farm crops processed at the facility, or
an establishment for the slaughter, processing or selling of poultry or poultry
products pursuant to ORS 603.038.
FINDING: The applicant proposes to utilize 800 square -feet of the proposed agricultural structure
for marijuana processing of marijuana produced on-site. At least one-quarter of the marijuana
produced on-site as measured by weight is to be processed at the facility in any calendar year. The
proposed processing facility is to be located in an existing agricultural building and siting standards'
are compliant with this use.
As a condition of approval, the applicant shall assure that at least one-quarter of the farm crops
processed at the facility in any calendar year, measured by weight, are produced at the farm
operation on the subject property. In addition, the applicant shall provide to the Planning Division
written documentation of compliance with the requirement in paragraph DCC 18.16.025(1) by
submitting processed crop summaries to the Planning Division on request, and no less frequently
than on an annual basis by January 31 of each year.
1. If a building is established or used for the processing facility or
establishment, the farm operator may not devote more than 10,000
square feet of floor area to the processing facility or establishment,
exclusive of the floor area designated for preparation, storage or
other farm use.
FINDING: The applicant proposes to utilize 800 square -feet of the proposed agricultural structure
for marijuana processing of marijuana produced on-site. This criterion will be met.
2. A processing facility or establishment must comply with all applicable
siting standards but the standards shall not be applied in a manner
that prohibits the siting of the processing facility.
FINDING: Staff finds that the processing facility, as proposed and conditioned, can comply with all
applicable siting standards identified in this decision and that these applicable standards have not
been be applied in a manner that prohibits the siting of the processing facility.
3. The County shall not approve any division of a lot or parcel that
separates a processing facility or establishment from the farm
operation on which it is located.
FINDING: No division of a lot or parcel is proposed.
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 7 of 40
L. Marijuana processing, subject to the applicable provisions of DCC 18.16.025(1)
and 18.116.330.
FINDING: The applicant proposes to utilize 800 square -feet of the proposed agricultural structure
for marijuana processing of marijuana produced on-site. This use is permitted subject to
compliance with the applicable provisions of DCC 18.16.025(1), 18.116.330, and additional sections
of 18.16 identified below. In addition, the proposal is subject to compliance with relevant sections
DCC 18.124. Compliance with these provisions is addressed in this decision.
3. 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: Staff includes the following condition of approval:
Building Height: No building or structure, including greenhouses, shall be erected or enlarged to
exceed 30 feet in height, except as allowed under DCC 18.120.040.
4. Section 18.16.070. Yards.
A. The front yard shall be a minimum of. 40 feet from a property line fronting
on a local street, 60 feet from a property line fronting on a collector street,
and 100 feet from a property line fronting on an arterial street.
B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm
dwelling proposed on property with side yards adjacent to property currently
employed in farm use, and receiving special assessment for farm use, the
side yard shall be a minimum of 100 feet.
C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling
proposed on property with a rear yard adjacent to property currently
employed in farm use, and receiving special assessment for farm use, the
rear yard shall be a minimum of 100 feet.
D. in addition to the setbacks set forth herein, anygreater setbacks required by
applicable building or structural codes adopted by the State of Oregon
and/or the County under DCC 15.04 shall be met.
FINDING: The subject property has frontage on Jason Road, a rural local road requiring a 40 -foot
front yard setback. The proposal is not for a nonfarm dwelling, therefore, the required side and
rear yard setbacks are 25 feet. The proposed structures will be setback at least 100 feet from all
property lines. These criteria will be met.
B. CHAPTER 18.80. AIRPORT SAFETY COMBINING ZONE
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Section 18.80.020. Application of Provisions.
The provisions of DCC 18.80.020 shall only apply to unincorporated areas located
under airport imaginary surfaces and zones, including approach surfaces, transitional
surfaces, horizontal surfaces, conical surfaces and runway protection zones. While
DCC 18.80 identifies dimensions for the entire imaginary surface and zone, parts of
the surfaces and/or zones do not apply within the Redmond, Bend or Sisters Urban
Growth Boundaries. The Redmond Airport is owned and operated by the City of
Redmond, and located wholly within the Redmond City Limits.
imaginary surface dimensions vary for each airport covered by DCC 18.80.020.
Based on the classification of each individual airport, only those portions (of the AS
Zone) that overlay existing County zones are relevant.
Public use airports covered by DCC 18.80.020 include Redmond Municipal, Bend
Municipal, Sunriver and Sisters Eagle Air. Although it is a public -use airport, due to
its size and other factors, the County treats land uses surrounding the Sisters Eagle
Air Airport based on the ORS 836.608 requirements for private -use airports. The
Oregon Department of Aviation is still studying what land use requirements will.
ultimately be applied to Sisters. However, contrary to the requirements of ORS
836.608, as will all public -use airports, federal law requires that the FAA Part 77
surfaces must be applied. The private -use airports covered by DCC 18.80.020 include
Cline Falls Airpark and Juniper Airpark.
FINDING: The subject property is more than 100 feet beneath the conical surface of the Bend
Municipal Airport. Therefore, the provisions of this chapter apply.
2. Section 18 80.028. Height Limitations.
All uses permitted by the underlying zone shall comply with the height limitations
in DCC 18.80.028. When height limitations of the underlying zone are more
restrictive than those of this overlay zone, the underlying zone height limitations
shall control. [ORS 836.619, OAR 660-013-0070]
A. Except as provided in DCC 18.80.028(8) and (C), no structure or tree, plant or
other object of natural growth shall penetrate an airport imaginary surface.
[ORS 836.619, OAR 660-013-0070(1)]
B. For areas within airport imaginary surfaces but outside the approach and
transition surfaces, where the terrain is at higher elevations than the airport
runway surfaces such that existing structures and permitted development
penetrate or would penetrate the airport imaginary surfaces, a local
government may authorize structures up to 35 feet in height.
C. Other height exceptions or variances may be permitted when supported in
writing by the airport sponsor, the Department of Aviation and the FAA.
Applications for height variances shall follow the procedures for other
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variances and shall be subject to such conditions and terms as recommended
by the Department of Aviation and the FAA (for Redmond, Bend and Sunriver.)
FINDING: The proposed structure will be less than 30 feet tall which is in compliance with the 30 -
foot height limitation of the EFU Zone. This criterion will be met.
3. Section 18.80,044. Land Use Compatibility.
Applications for land use or building permits for properties within the boundaries
of this overlay zone shall comply with the requirements of DCC 18.80 as provided
herein. When compatibility issues arise, the Planning Director or Hearings Body is
required to take actions that eliminate or minimize the incompatibility by choosing
the most compatible location or design for the boundary or use. Where compatibility
issues persist, despite actions or conditions intended to eliminate or minimize the
incompatibility, the Planning Director or Hearings Body may disallow the use or
expansion, except where the action results in loss of current operational levels
and/or the ability of the airport to grow to meet future community needs.
Reasonable conditions to protect the public safety may be imposed by the Planning
Director or Hearings Body. [ORS 836.619; ORS 836.623(1); OAR 660-013-0080]
A. Noise. Within airport noise impact boundaries, land uses shall be established
consistent with the levels identified in OAR 660, Division 13, Exhibit 5 (Table
2 of DCC 18.80). Applicants for any subdivision or partition approval or other
land use approval or building permit affecting land within airport noise
impact boundaries, shall sign and record in the Deschutes County Book of
Records, a Declaration of Anticipated Noise declaring that the applicant and
his successors will not now, or in the future complain about the allowed
airport activities at the adjacent airport. In areas where the noise level is
anticipated to be at or above 55 Ldn, prior to issuance of a building permit
for construction of a noise sensitive land use (real property normally used for
sleeping or as a school, church, hospital, public library or similar use), the
permit applicant shall be required to demonstrate that a noise abatement
strategy will be incorporated into the building design that will achieve an
indoor noise level equal to or less than 55 Ldn. [NOTE. FAA Order 5100.38A,
Chapter 7 provides that interior noise levels should not exceed 45 decibels in
all habitable zones.]
FINDING: The subject property is not within the noise impact boundary associated with the Bend
Municipal Airport. This criterion does not apply.
B. Outdoor lighting. No new or expanded industrial, commercial or recreational
use shall project lighting directly onto an existing runway or taxiway or into
existing airport approach surfaces except where necessary for safe and
convenient air travel. Lighting for these uses shall incorporate shielding in
their designs to reflect light away from airport approach surfaces. No use
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shall imitate airport lighting or impede the ability of pilots to distinguish
between airport lighting and other lighting.
FINDING: Due to the location of the property, any new lighting will not project directly onto an
existing runway or taxiway or into existing airport approach surfaces.
C. Glare. No glare producing material, including but not limited to unpainted
metal or reflective glass, shall be used on the exterior of structures located
within an approach surface or on nearby lands where glare could impede a
pilot's vision.
FINDING: The applicant did not provide construction details for the exterior building materials. A
Condition of Approval has been added to ensure compliance. This criterion will be met.
D. Industrial emissions. No new industrial, mining or similar use, or expansion
of an existing industrial, mining or similar use, shall, as part of its regular
operations, cause emissions of smoke, dust or steam that could obscure
visibility within airport approach surfaces, except upon demonstration,
supported by substantial evidence, that mitigation measures imposed as
approval conditions will reduce the potential for safety risk or
incompatibility with airport operations to an insignificant level. The review
authority shall impose such conditions as necessary to ensure that the use
does not obscure visibility.
FINDING: The proposed use will not cause emissions of smoke, dust or steam that could obscure
visibility within airport approach surfaces.
E. Communications Facilities and Electrical Interference. No use shall cause or
create electrical interference with navigational signals or radio
communications between an airport and aircraft. Proposals for the location
of new or expanded radio, radiotelephone, and television transmission
facilities and electrical transmission lines within this overlay zone shall be
coordinated with the Department of Aviation and the FAA prior to approval.
Approval of cellular and other telephone or radio communication towers on
leased property located within airport imaginary surfaces shall be
conditioned to require their removal within 90 days following the expiration
of the lease agreement. A bond or other security shall be required to ensure
this result.
FINDING: Staff finds the proposed marijuana production and processing facility will not cause or
create electrical interference. This criterion will be met.
F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach Surface,
and Airport Direct and Secondary Impact Areas.
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For the Redmond, Bend, Sunriver, and Sisters airports, the land uses
identified in DCC 18.80 Table 1, and their accessory uses, are permitted,
permitted under limited circumstances, or prohibited in the manner therein
described. In the event of conflict with the underlying zone, the more
restrictive provisions shall control. As used in DCC 18.80.044, a limited use
means a use that is allowed subject to special standards specific to that use.
FINDING: The subject property is not located in the RPZ, Approach Surface, Airport Direct or
Secondary Impact Areas. This criterion does not apply.
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 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(B)(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:
Right -of -Way Width
Clear Vision
80 feet or more
20 feet
60 feet
30 feet
50 feet and less
40 feet
FINDING: Based on the submitted site plan, no clear vision area will be obstructed with this
proposal. This criterion is met.
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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 off-street parking requirements for the proposed processing facility are addressed
below.
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 by truck or similar vehicle, shall
provide off-street loading space on the basis of minimum requirements as
follows:
1. Commercial, industrial and public utility uses which have a gross floor
area of 5,000 square feet or more shall provide truck loading or
unloading berths subject to the following table:
Sq. Ft of Floor Area
No. of Berths Required
Less than 5,000
0
5,000-30,000
1
30,000-100,000
2
100,000 and over
3
3. A loading berth shall contain space 10 feet wide, 35 feet long and have
a height clearance of 14 feet. Where the vehicles generally used for
loading exceed these dimensions, the required length of these berths
shall be increased.
FINDING: The proposed primary marijuana production use is a farm use and does not require a
loading berth. The proposed marijuana processing use is most similar to an industrial use in nature
and requires compliance with this standard. The proposed marijuana processing will occur within
an 800 -square -foot area falling below the threshold for requiring a loading berth. Therefore, no
berth is required.
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
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hereafter erected or enlarged or the use of a building existing on the effective
date of DCC Title 18 is changed.
D. Number of Spaces Required. Off-street parking shall be provided as follows:
7 Inrhictrinl
Use
Requirements
Manufacturing
1 space per employee on
establishment
the largest working shift
Storage warehouse,
1 space per 2,000 sq. ft. of
wholesale establishment,
floor area
rail or trucking freight
terminal
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.
FINDING: Since the number of employees on the largest working shift is 4, staff finds the proposed
8 spaces provides adequate parking and thus satisfies criterion under (D)(9).
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.
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 other uses or businesses will be sharing the proposed off-street parking spaces.
Therefore, these criteria are not applicable.
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 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
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during site plan approval. The burden of proving the existence of such off -
premise parking arrangements rests upon the applicant.
FINDING: All required parking spaces are located on the same parcel and closer than 500 feet from
the building they are intended to serve.
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: A condition of approval has been added to ensure compliance.
S. 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: The required parking spaces for the proposed marijuana facility will be located outside
of the required front yard. This criterion is met.
6. On -Street Parking Credit. Notwithstanding DCC 1&116.030(G)(2), within
commercial zones in the La Pine Planning Area and the Terrebonne and
Tumalo unincorporated communities, the amount of required off-street
parking can be reduced by one off-street parking space for every allowed on -
street parking space adjacent to a property up to 30% of the required off-
street parking....
FINDING: The applicant is not requesting off-street parking credit. This criterion is not applicable.
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 area will have over five spaces so this criterion applies. The
parking area will be located over 300 feet from any property line. Natural vegetation, topography,
and proposed development provide screening or buffering between the facility and all surrounding
residences and neighboring properties. Based on this information, staff finds this standard is met.
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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.
FINDING: The property to the northwest is an adjoining' property in the MUA10 zone, a residential
zone. Substantial vegetation is established between the property and proposed development,
which will provide a screen. The applicant has provided a figure showing "shielded wall lights" and
"emergency floods". To ensure compliance, a condition of approval required that 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.
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: Based on staff's review of the parking lot design, vehicle parking is over 300 feet from
Jason Road. Staff finds the parking spaces are located and designed to prevent vehicles from
backing into a street or right-of-way.
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 subject property is located outside of an unincorporated community. From the
submitted materials, it appears the applicant intends to gravel the parking area and driveway in a
manner in which it will not create dust problems for the neighboring properties. Staff finds this
standard can be met through a condition of approval requiring the areas used for vehicle standing
and maneuvering associated with the marijuana processing use shall be constructed with a surface
that is adequately maintained for all weather use (gravel or paved) and maintained in a manner that
will not create dust problems for neighboring properties.
1 DCC 18.04.030 - "Adjoining" means contiguous; touching or connected, including tracts of land that only connect or touch
at a common point.
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5. Access aisles shall be of sufficient width for all vehicular turning and
maneuvering.
FINDING: The access aisles are proposed at width greater than 24 feet, allowing for two-way traffic.
Staff finds that this is sufficient width for all vehicular turning and maneuvering.
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 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: The existing driveway, access aisles, and parking areas will be sufficient, as conditioned,
to accommodate service vehicles coming to this site. The drive aisles are well marked and defined
by the rock surface of the drive. The buildings are located a significant distance from public right-
of-way, thereby preventing backing movements or other maneuvering within the street.
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: The driveway connection at Jason Road observes these requirements.
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 area is not located near any property boundary or street right-of-
way. No curb or bumper rail is required to prevent a motor vehicle from extending over an adjacent
property line or a street right of way.
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.
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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 compact stall shall
be eight feet in width and 17 feet in length with appropriate aisle
width.
FINDING: The applicant proposes parking to include one row of eight 90 -degree parking stalls. The
applicant's site plan illustrates the 8 parking spaces and adequate room for access aisles and
maneuvering areas. The proposed dimensions for each 90 -degree non -accessible parking space
will be nine feet by 20 feet. Access aisles are proposed greater than 24 feet, allowing for two-way
traffic.
3. Section 18.116.031. Bicycle ParkioZ.
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.
b. Except as specifically set forth herein, all such parking facilities shall
include at least two sheltered parking spaces or, where more than 10
bicycle spaces are required, at least 50 percent of the bicycle parking
spaces shall be sheltered.
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
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examples would include, but not be limited to, paintball parks,
golf courses, shooting ranges, etc.
FINDING: The subject property and proposed use are located outside of an unincorporated
community, a destination resort, and a rural commercial zone, thereby eligible for exceptions to the
bicycle parking standards. The subject property has frontage on and legal direct access from Cason
Road. Cason Road does not have bike lanes and is not specifically designated as a bikeway. In
addition, the proposed marijuana production and inputs to that production would typically be
delivered by truck and transporting them by bicycle would be impractical or unlikely. Based on this
information, Staff finds the proposal is allowed an exception to the bike parking standards.
4. Section 18.116.330 Marijuana Production, Processing, and Retailing.
A. Applicability. Section 18.116.330 applies to:
1. Marijuana Production in the EFU, MUA-10, and RI zones.
2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, Rl, and
SUBP zones
3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, RI, SUC, SUTC,
and SUBP zones.
4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP
zones.
FINDING: The applicant has proposed marijuana production and processing in an EFU Zone. This
section applies.
B. Marijuana production and marijuana processing. Marijuana production and
marijuana processing shall be subject to the following standards and criteria:
1. Minimum Lot Area.
a. In the EFU and MUA-10 zones, the subject legal lot of record shall
have a minimum lot area of five (5) acres.
FINDING: The subject property is 40.1 acres in size. This criterion is met.
2. Indoor Production and Processing.
a. In the MUA-10 zone, marijuana production and processing shall
be located entirely within one or more fully enclosed buildings
with conventional or post framed opaque, rigid walls and roof
covering. Use of greenhouses, hoop houses, and similar non-
rigid structures is prohibited.
b. In the EFU zone, marijuana production and processing shall only
be located in buildings, including greenhouses, hoop houses,
and similar structures.
C. In all zones, marijuana production and processing are
prohibited in any outdoor area.
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FINDING: The subject property is within the EFU Zone. The applicant is proposing to establish the
marijuana processing use within an 800 -square -feet of a proposed building and the marijuana
production the same building. All production and processing will occur within this structure. Staff
includes the following condition of approval:
No Outdoor Production or Processing: Marijuana production and processing is prohibited in any
outdoor area.
3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum
canopy area for mature marijuana plants shall apply as follows:
a. Parcels from 5 acres to less than 10 acres in lot area: 2,500
square feet.
b. Parcels equal to or greater than 10 acres to less than 20 acres in
lot area: 5,000 square feet. The maximum canopy area for
mature marijuana plants may be increased to 10,000 square
feet upon demonstration by the applicant to the County that:
i. The marijuana production operation was lawfully
established prior to january 1, 2015, and
ii. The increased mature marijuana plant canopy area will
not generate adverse impact of visual, odor, noise,
lighting, privacy or access greater than the impacts
associated with a 5,000 square foot canopy area
operation.
C. Parcels equal to or greater than 20 acres to less than 40 acres in
lot area: 10,000 square feet.
d. Parcels equal to orgreater than 40 acres to less than 60 acres in
lot area: 20,000 square feet.
e. Parcels equal to or greater than 60 acres in lot area: 40,000
square feet.
FINDING: The applicant proposes to establish marijuana production with a total mature canopy of
10,000 square feet. The maximum mature canopy size is 20,000 square feet as allowed under
Section (c) for properties 20 acres to less than 60 acres in lot area. The subject property is 40.1 acres
in size. Staff includes the following condition of approval:
Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana plants shall
not exceed 10,000 square feet at any time.
4. Maximum Building Floor Area. In the MUA-10 zone, the maximum
building floor area used for all activities associated with marijuana
production and processing on the subject property shall be:
a. Parcels from 5 acres to less than 10 acres in lot area: 2,500
square feet.
b. Parcels equal to or greater than 10 acres: 5,000 square feet.
FINDING: The subject property is not located in the MUA-10 Zone. These criteria do not apply.
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S. Limitation on License/Grow Site per Parcel. No more than one (1)
Oregon Liquor Control Commission (OLCC) licensed marijuana
production or Oregon Health Authority (OHA) registered medical
marijuana grow site shall be allowed per legal parcel or lot.
FINDING: The proposed use includes one (1) Oregon Liquor Control Commission (OLCC) licensed
marijuana production site. An ongoing condition of approval will be included to ensure that only
one OLCC license shall be allowed per legal parcel for the marijuana production use.
6. Setbacks. The following setbacks shall apply to all marijuana
production and processing areas and buildings:
a. Minimum Yard Setback/Distance from Lot Lines: 100 feet.
b. Setback from an off-site dwelling. 300 feet.
For the purposes of this criterion, an off-site dwelling includes
those proposed off-site dwellings with a building permit
application submitted to Deschutes County prior to submission
of the marijuana production or processing application to
Deschutes County.
C. Exception: Any reduction to these setback requirements may be
granted by the Planning Director or Hearings Body provided the
applicant demonstrates the reduced setbacks afford equal or
greater mitigation of visual, odor, noise, lighting, privacy, and
access impacts.
FINDING: All portions of the operation will be located over 100' from any property line and
significantly over 300 feet from the nearest off-site dwelling. These criteria will be met.
7. Separation Distances. Minimum separation distances shall apply as
follows:
a. The use shall be located a minimum of 1000 feet from:
L A public elementary or secondary school for which
attendance is compulsory under Oregon Revised Statutes
339.010, et seg. , including any parking lot appurtenant
thereto and any property used by the school,
ii. A private or parochial elementary or secondary school,
teaching children as described in ORS 339.030(1)(a),
including any parking lot appurtenant thereto and any
property used by the school;
iii. A licensed child care center or licensed preschool,
including any parking lot appurtenant thereto and any
property used by the child care center or preschool. This
does not include licensed or unlicensed child care which
occurs at or in residential structures,
iv. A youth activity center, and
V. National monuments and state parks.
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b. For purposes of DCC 18.116.330(8)(7), all distances shall be
measured from the lot line of the affected properties listed in
DCC 18.116.330(8)(7)(a) to the closest point of the buildings and
land area occupied by the marijuana producer or marijuana
processor.
C. A change in use of another property to those identified in DCC
18.116.330(8)(7) shall not result in the marijuana producer or
marijuana processor being in violation of DCC 18.116.330(8)(7) if
the use is:
i. Pending a local land use decision,
ii. Licensed or registered by the State of Oregon, or
iii. Lawfully established.
FINDING: According to the applicant's burden of proof, there are no uses requiring a separation
distance located within 1,000 feet from the buildings. Based on the County's GIS mapping tool, staff
has confirmed that there are no uses listed above within 1,000 feet of the proposed buildings.
Record submittals indicate that a variety of youth -focused classes are conducted on an adjacent
property. "Youth activity center" is not defined in the County Code. Staff believes that permitted
community, recreation, or nature centers, where such use included youth -focused activities would
potentially constitute a youth activity center.
Presently no permits have been obtained by the adjacent property for uses beyond residential use.
In addition, agricultural use and residential accessory uses' are also allowed outright. In the MUM 0
zone, where the adjacent property is located, the following uses could potentially constitute or
include youth activity centers:
18.32.030. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128:
A. Public use.
B. Semipublic use.
C. Commercial activities in conjunction with farm use.
D. Dude ranch.
L Private parks, playgrounds, hunting and fishing preserves, campgrounds,
motorcycle tracks and other recreational uses.
K. Golf courses.
L. Type 2 or Type 3 Home Occupation, subject to DCC 18.116.280.
W. Churches, subject to DCC 18.124 and 18.128.080.
Z DCC 18.04.030 - "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.
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AA. Commercial horse stables.
BB. Horse events, including associated structures, not allowed as a permitted use
in this zone.
Staff finds that "youth activity center" would necessarily be a conditional use in the MUA10 zone and
would not be allowed outright as part of residential or agricultural use or any accessory use thereto.
Since no such permits have been obtained by any property within 1,000 feet of the subject property,
staff finds that no permitted "youth activity center" exists in this area. These criteria will be met.
8. Access. Marijuana production over 5,000 square feet of canopy area for
mature marijuana plants shall comply with the following standards.
a. Have frontage on and legal direct access from a constructed
public, county, or state road, or
b. Have access from a private road or easement serving only the
subject property.
C. If the property takes access via a private road or easement
which also serves other properties, the applicant shall obtain
written consent to utilize the easement or private road for
marijuana production access from all owners who have access
rights to the private road or easement. The written consent
shall.
L Be on a form provided by the County and shall contain
the following information;
ii. Include notarized signatures of all owners, persons and
properties holding a recorded interest in the private road
or easement;
iii. Include a description of the proposed marijuana
production or marijuana processing operation, and
iv. Include a legal description of the private road or
easement.
FINDING: The subject property takes access from Cason Road, a rural local, public road. At this time,
the applicant proposes a mature plant canopy size of 10,000 square feet. A driveway access permit
has been obtained by the property owner, file number 247 -18 -001829 -DA. Therefore, this criterion
is met.
9. Lighting. Lighting shall be regulated as follows:
a. Inside building lighting, including greenhouses, hoop houses,
and similar structures, used for marijuana production shall not
be visible outside the building from 7.00 p.m. to 7.00 a.m. on the
following day.
b. Lighting fixtures shall be fully shielded in such a manner that all
light emitted directly by the lamp or a diffusing element, or
indirectly by reflection or refraction, is projected below the
horizontal plane through the lowest light -emitting part.
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C. Light cast by exterior light fixtures other than marijuana grow
lights shall comply with DCC 15. 10, Outdoor Lighting Control.
FINDING: The applicant has stated that the indoor lighting for the marijuana production and
processing use will not be visible outside the building from 7:00 pm to 7:00 am. A condition of
approval specifies:
Lighting: The following lighting standards shall be met. Inside building lighting used for marijuana
production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day.
Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp
or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal
plane through the lowest light -emitting part. The light cast by exterior light fixtures other than
marijuana growing lights shall comply with DCC 15. 10, Outdoor Lighting Control.
10. Odor. As used in DCC 18.116.330(8)(10), building means the building,
including greenhouses, hoop houses, and other similar structures, used
for marijuana production or marijuana processing.
a. The building shall be equipped with an effective odor control
system which must at all times prevent unreasonable
interference of neighbors' use and enjoyment of their property.
b. An odor control system is deemed permitted only after the
applicant submits a report by a mechanical engineer licensed in
the State of Oregon demonstrating that the system will control
odor so as not to unreasonably interfere with neighbors' use and
enjoyment of their property.
C. Private actions alleging nuisance or trespass associated with
odor impacts are authorized, if at all, as provided in applicable
state statute.
d. The odor control system shall.
L Consist of one or more fans. The fan(s) shall be sized for
cubic feet per minute (CFM) equivalent to the volume of
the building (length multiplied by width multiplied by
height) divided by three. The filter(s) shall be rated for
the required CFM; or
H. Utilize an alternative method or technology to achieve
equal to or greater odor mitigation than provided by (i)
above.
e. The system shall be maintained in working order and shall be in
use.
FINDING: The applicant has submitted an odor report by Rob dames, P.E., a mechanical engineer
licensed in the State of Oregon (#65108PE), with ColeBreit Engineering. The report states in relevant
part:
The structure will use carbon filtration for odor mitigation purposes. This system is
designed to manage any odor to not unreasonably interfere with neighbors' use and
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enjoyment of their property. This system consists of multiple in-line fans with
attached carbon filters.
The first building contains 2 flower rooms, a veg/clone room, a dry/trimming space,
and a processing room:
1. The 2 flower rooms each have a volume of 12,672 CF, which will require a carbon -
filtered air flow of 4,224 CFM. Each flower room will have (5) Can -Fan 12" HO (925
CFM @ 0.5") in-line fans, or similar, with an attached Can 150 carbon filter, or
similar. The carbon -filtered air flow will be 4,625 CFM in each space, thus meeting
the code requirement.
2. The clone room has a volume of 6,912 CF, which will require a carbon -filtered air
flow of 2,304 CFM. The clone room will have (3) Can -Fan 12" HO (925 CFM @ 0.5")
in-line fans, or similar, with an attached Can 150 carbon filter, or similar. The
carbon -filtered air flow will be 2,775 CFM, thus meeting the code requirement.
3. The drying room has a volume of 8,640 CF, which will require a carbon -filtered air
flow of 2,880 CFM. The drying room will have (4) Can -Fan 12" HO (925 CFM @ 0.5")
in-line fans, or similar, with an attached Can 150 carbon filter, or similar. The
carbon -filtered air flow will be 3,700 CFM, thus meeting the code requirement.
4. The process room has a volume of 6,912 CF, which will require a carbon -filtered
air flow of 2,304 CFM. The process room will be exhausted through a carbon filter,
thus meeting the code requirement.
The second building contains 1 grow room:
The grow room has a volume of 38,285 CF, which will require a carbon -filtered
air flow of 12,762 CFM. This room will have (14) Can -Fan 12" HO (925 CFM @ 0.5")
in-line fans, or similar, with an attached Can 150 carbon filter, or similar. The
carbon -filtered air flow will be 12,950 CFM in this space, thus meeting the code
requirement.
Hallway between buildings:
The hallway has a volume of 15,238 CF, which will require a carbon -filtered air flow of
5,080 CFM. This space will have (6) Can -Fan 12" HO (925 CFM @ 0.5") in-line fans, or
similar, with an attached Can 150 carbon filter, or similar. The carbon -filtered air flow
will be 5,550 CFM in this space, thus meeting the code requirement.
Staff finds that the proposed odor control system complies with these criteria as it is supported by a
report by a mechanical engineer licensed in the State of Oregon and consists of fans and filters
based on the volume of the building. As a condition of approval:
Odor: The proposed odor control system must at all times prevent unreasonable interference with
neighbors' use and enjoyment of their property. The odor control system shall be maintained in
working order and shall be in use.
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11. Noise. Noise produced by marijuana production and marijuana
processing shall comply with the following.
a. Sustained noise from mechanical equipment used for heating,
ventilation, air condition, odor control, fans and similar
functions shall not exceed 30 d8(A) measured at any property
line between 10.00 p.m. and 7.00 a.m. the following day.
b. Sustained noise from marijuana production is exempt from
protections of DCC 9.12 and ORS 30.395, Right to Farm.
Intermittent noise for accepted farming practices is permitted.
FINDING: The applicant has submitted a noise report by Rob James, P.E., a mechanical engineer
licensed in the State of Oregon (#65108PE), with ColeBreit Engineering. The report states in relevant
pa rt:
The buildings are located approximately 366' from the north property line, 624' from
the east property line, 803' from the south property line, and 458' from the west
property line.
The AC system for the first building will use (6) 38" fans, rated for 92.2 dBA. A 6'-7"
high concrete sound barrier wall will be required 4-5 feet away from the AC unit on
the east and north sides of the equipment to keep sound levels at the any property
line below 30 dBA.
The AC system for the second building will use (3) chillers, rated for 43.2 dBA each.
No sound barriers are need for this building to keep sound levels at the any
property line below 30 dBA.
The calculated sound pressure levels from the AC systems at each property line,
with sounds barriers as indicated above and shown on the site plan, are as follows:
North: 29.9 dBA
East: 27.3 dBA
South: 12.7 dBA
West: 18.7 dBA
Therefore, the building will comply with DCC 18.116.330(B)(1 1)(a).
Staff finds that the proposed system will meet these criteria and includes as a condition of approval:
Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning,
odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line
between 10:00 p.m. and 7:00 a.m. the following day.
12. Screening and Fencing. The following screening standards shall apply
to greenhouses, hoop houses, and similar non -rigid structures and land
areas used for marijuana production and processing.
a. Subject to DCC 18.84, Landscape Management Combining Zone
approval, if applicable.
b. Fencing shall be finished in a muted earth tone that blends with
the surrounding natural landscape and shall not be constructed
of temporary materials such as plastic sheeting, hay bales,
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tarps, etc. , and shall be subject to DCC 18.88, Wildlife Area
Combining Zone, if applicable.
C. Razor wire, or similar, shall be obscured from view or colored a
muted earth tone that blends with the surrounding natural
landscape.
d. The existing tree and shrub cover screening the development
from the public right-of-way or adjacent properties shall be
retained to the maximum extent possible. This provision does
not prohibit maintenance of existing lawns, removal of dead,
diseased or hazardous vegetation; the commercial harvest of
forest products in accordance with the Oregon Forest Practices
Act, or agricultural use of the land.
FINDING: The subject property is not in a Landscape Management or Wildlife Area Combining Zone.
The Applicant is proposing new fencing around the grow facility (indicated on the plot plan) that will
be in muted, beige earth tones. The Applicant is not proposing razor wire. The existing tree and
shrub cover screening the development is shown in a plot plan as Exhibit D. The Applicant will not
remove screening vegetation as part of this project. The Applicant will be removing vegetation that
is within the footprint of the proposed grow building and the proposed hybrid greenhouse. This is
not within view of a public right-of-way. As conditions of approval:
Fencing: Fencing shall be finished in a muted earth tone that blends with the surrounding natural
landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales,
tarps, etc.
Screening Tree and Shrub Cover: The existing tree and shrub cover screening the development from
the public right-of-way or adjacent properties shall be retained to the maximum extent possible.
This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or
hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon
Forest Practices Act; or agricultural use of the land. These criteria will be met.
13. Water. The applicant shall provide:
a. A copy of a water right permit, certificate, or other water use
authorization from the Oregon Water Resource Department, or
b. A statement that water is supplied from a public or private
water provider, along with the name and contact information of
the water provider; or
C. Proof from the Oregon Water Resources Department that the
water to be used is from a source that does not require a water
right.
FINDING: The applicant proposes to have water delivered to the property by ABC Lightning, Inc.
The applicant submitted a "will serve" letter from ABC Lightning, Inc., stating they are willing and
able to serve an estimated 6,000 gallons of water each month for the intended purpose of use in an
indoor marijuana production facility. This water is sourced from Avion Water Company. The
application has COID water right, but has not indicated that they will be used for the proposed
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 27 of 40
production. Staff notes that this finding does not preclude the lawful use of COID water rights for
production. As a condition of approval:
Water: The use of water from any source for marijuana production shall comply with all applicable
state statutes and regulations including ORS 537.545 and OAR 690-340-0010.
14. Fire protection for processing of cannabinoid extracts. Processing of
cannabinoid extracts shall only be permitted on properties located
within the boundaries of or under contract with a fire protection
district.
FINDING: The subject property is located within the boundaries of the Rural Fire District #2 (Bend
Fire Department). This criterion is met.
15. Utility Verification. A statement from each utility company proposed
to serve the operation, stating that each such company is able and
willing to serve the operation, shall be provided.
FINDING: The Central Electric Cooperative provided a "will serve" letter dated February 22, 2018.
The letter states that Central Electric Cooperative has reviewed the provided load information ("2-
2000 amps @ 227-480V, three phase") associated with the cannabis facility and is willing to serve
this location in accordance with the rates and policies of the company. This standard is met.
16. Security Cameras. If security cameras are used, they shall be directed
to record only the subject property and public rights-of-way, except as
required to comply with requirements of the OLCC or the OHA.
FINDING: The Applicant will be using security cameras. These cameras will be directed as to record
only the subject property and not public rights-of-way. Specifically, the cameras will be pointed
toward the interior of the building, in the limited -access areas. As a condition of approval:
Security Cameras: Security cameras shall be directed to record only the subject property and public
rights-of-way, except as required to comply with requirements of the OLCC.
17. Secure Waste Disposal. Marijuana waste shall be stored in a secured
waste receptacle in the possession of and under the control of the OLCC
licensee or OHA Person Responsible for the Grow Site (PRMG).
FINDING: A locked, secured waste receptacle will be a dumpster within the proposed fencing, next
to the northwest corner of the proposed fencing. As an ongoing condition of approval:
Waste: The marijuana waste receptacle shall be stored in a secured waste receptacle in the
possession of and under the control of the OLCC licensee.
18. Residency. In the MUA-10 zone, a minimum of one of the following shall
reside in a dwelling unit on the subject property.
a. An owner of the subject property,
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b. A holder of an OLCC license for marijuana production, provided
that the license applies to the subject property, or
C. A person registered with the OHA as a person designated to
produce marijuana by a registry identification cardholder,
provided that the registration applies to the subject property.
FINDING: The subject property is not in the MUA-10 Zone. This section does not apply.
19. Nonconformance. All medical marijuana grow sites lawfully
established prior to June 8, 2016 by the Oregon Health Authority shall
comply with the provisions of DCC 18.116.330(B)(9) by September 8,
2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by
December 8, 2016.
FINDING: The subject property was not a lawfully established medical marijuana grow site. This
section does not apply.
20. Prohibited Uses.
a. In the EFU zone, the following uses are prohibited:
i. A new dwelling used in conjunction with a marijuana
crop,
ii. A farm stand, as described in ORS 215.213(1)(r) or
215.283(1)(0), used in conjunction with a marijuana crop,
iii. A commercial activity, as described in ORS 215.213(2)(c)
or 215.283(2)(a), carried on in conjunction a marijuana
crop, and
iv. Agri -tourism and other commercial events and activities
in conjunction with a marijuana crop.
C. In the EFU, MUA-10, and Rural Industrial zones, the following
uses
are prohibited on the same property as marijuana
production:
i.
Guest Lodge.
ii.
Guest Ranch.
iii.
Dude Ranch.
iv.
Destination Resort.
V.
Public Parks.
Vi.
Private Parks.
vii.
Events, Mass Gatherings and Outdoor Mass Gatherings.
viii.
Bed and Breakfast.
ix.
Room and Board Arrangements.
FINDING: As an ongoing condition of approval:
Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject property
so long as marijuana production is conducted on the site.
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D. Annual Reporting
1. An annual report shall be submitted to the Community Development
Department by the real property owner or licensee, if different, each
February 1, documenting all of the following as of December 31 of the
previous year, including the applicable fee as adopted in the current
County Fee Schedule and a fully executed Consent to Inspect Premises
form:
a. Documentation demonstrating compliance with the:
i. Land use decision and permits.
ii. Fire, health, safety, waste water, and building codes and
laws.
iii. State of Oregon licensing requirements.
b. Failure to timely submit the annual report, fee, and Consent to
Inspect Premises form or to demonstrate compliance with DCC
18.116.330(C)(1)(a) shall serve as acknowledgement by the real
property owner and licensee that the otherwise allowed use is
not in compliance with Deschutes County Code, authorizes
permit revocation under DCC Title 22, and may be relied upon
by the State of Oregon to deny new or license renewal(s) for
the subject use.
C. Other information as may be reasonably required by the
Planning Director to ensure compliance with Deschutes County
Code, applicable State regulations, and to protect the public
health, safety, and welfare.
d. Marijuana Control Plan to be established and maintained by
the Community Development Department.
e. Conditions of Approval Agreement to be established and
maintained by the Community Development Department.
f. This information shall be public record subject to ORS
192.502(17).
FINDING: Compliance with the annual reporting obligation of this section is required. As an ongoing
condition of approval:
Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met.
D. CHAPTER 18.124. SITE PLAN REVIEW
1. 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.
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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,
S. 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 (SMIA).
FINDING: The marijuana processing is considered an industrial use.3 However, the proposed
processing represents a small fraction of the total use at the site while the proposed marijuana
production is considered the dominate use on the property. Therefore, staff finds that the use of
the land is not primarily for industrial or commercial use'. Nevertheless, since the proposed use is
a use that requires parking facilities, the provisions of this chapter are applicable.
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: The subject property is 40.1 acres in size and square in shape. The property is accessed
from Jason Road, a rural local road. The topography slopes gently upward from Jason Road and has
a cover of native vegetation and pasture land. The subject property is developed with an existing
dwelling. Access to the property is taken from an existing access point along Jason Road. The
applicant provided the following response to this criterion:
The proposed development will relate harmoniously to existing development given
compliance with required setbacks, lighting standards, ingress/egress and parking
and signage, as discussed herein. The Applicant is proposing construction on a 40 -
acre parcel, with all structures more than 350 feet from any property line, and in an
undeveloped area in the EFU zone. The profile of the buildings will not unduly
obstruct views due to the low profile of the buildings and the distance from
3 DCC 18.04.030 - "Industrial use" means the use of land primarily for the manufacture, processing, storage or wholesale
distribution of products, goods or materials. It does not include commercial uses.
4 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.
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 31 of 40
neighbors. The construction footprint will not significantly impact the topography of
the site.
Staff notes that no disharmony with the natural environment and existing development, visual
impacts, or impacts to natural features including views and topographical features is identified in
the record. Staff finds that this criterion is met.
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: The Applicant will retain the existing topography, apart from the footprint of the buildings,
the parking area, and the location of the water cistern and waste disposal unit. No excessive earth-
moving is planned except to the extent necessary for stability and placement of the structures. No
other impacts to landscape and existing topography are proposed. 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: The applicant responded to this criterion as follows:
The Applicant's proposed construction is wholly within 40 acres of private land and is
setback from the public road and other properties by a distance of more than 300 feet.
The Applicant will abide by strict OLCC requirements for lighting, surveillance, and
automatic licensee contact in the event of theft or burglary, and as such is proposing a
safe environment, with appropriate opportunities for privacy and transition from public
to private spaces.
The applicant is proposing a marijuana processing facility. Access to the site is taken fromJason Road.
Parking and maneuvering areas will be located between the existing agricultural building and four
proposed greenhouses. The layout of the existing driveway together with the proposed parking
areas, loading area, and structures provides appropriate opportunities for privacy and transition from
public to private spaces.
Marijuana processing of extracts can include unusual levels of fire safety hazard but the subject
property is located in the Bend Fire District, who commented on this application. As a condition of
approval:
Processing Safety Requirements: In order to mitigate potential hazards associated with marijuana
processing the use shall comply with the applicable building, fire, and OLCC safety standards. The
applicant shall submit documentation from the Bend fire department that applicable fire
regulations have been met prior to initiation of the use.
D. When appropriate, the site plan shall provide for the special needs of
disabled persons, such as ramps for wheelchairs and Braille signs.
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FINDING: The County Building Safety Division will review specific ADA requirements during building
permit review.
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 applicant proposes to continue to use the existing access from Cason Road to reach
the proposed facility and parking area, with pedestrian access to the marijuana processing facility
in the existing building. Based on the site plan submitted by the applicant, staff finds that the
circulation pattern and arrangement of parking areas shall be harmonious with proposed and
neighboring buildings and structures.
F. Surface drainage systems shall be designed to prevent adverse impacts on
neighboring properties, streets or surface and subsurface water quality.
FINDING: The proposed processing facility will not significantly increase impervious surface area
on the subject property. Furthermore, there is no evidence in the record that the site has a history
of adversely impacting the surface water drainage pattern in the area. The submitted site plan
shows the subject property will be designed, graded, and improved to direct the flow of stormwater
to areas located on the property. Staff finds the proposed design prevents adverse impacts on the
neighboring properties, streets, and surface and subsurface water quality.
G. Areas, structures and facilities for storage, machinery and equipment,
services (mail, refuse, utility wires, and the like), loading and parking and
similar accessory areas and structures shall be designed, located and
buffered or screened to minimize adverse impacts on the site and
neighboring properties.
FINDING: The Applicant's site plan shows that areas, structures and facilities for storage, machinery
and equipment, services, loading and parking are designed, located and buffered/screened to
minimize adverse impacts on the site and neighboring properties. Most equipment and machinery
will be stored within the rigid, opaque proposed structures. There will be two outdoor areas where
equipment will be placed, one each adjacent to both structures, and buffered from public view by a
79 -inch concrete wall to reduce noise and visibility. Natural vegetation, topography, and existing
development provide screening between the facility and all surrounding residences and
neighboring properties. Staff finds that the site layout will be designed, located, buffered or
screened to minimize adverse impacts on the site and neighboring properties.
H. All above -ground utility installations shall be located to minimize adverse
visual impacts on the site and neighboring properties.
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FINDING: Above -ground utilities include the water cistern and an electrical pedestal from Pacific
Power, which will be located at the entrance of the property off of Cason Road, as is typical for this
type of property and operation. The power will be trenched underground to the site. The pedestal
will not adversely impact the site or neighboring properties. No other above -ground utilities will be
present on the property. Staff finds that utilities necessary for this project, including sewer, water
and electricity will be located underground or otherwise screened to minimize adverse visual
impacts.
1. Specific criteria are outlined for each zone and shall be a required part of the
site plan (e.g. lot setbacks, etc.)
FINDING: Each zone affecting the subject property is identified in this decision. The applicable
criteria for each zone are addressed in the findings above.
j. All exterior lighting shall be shielded so that direct light does not project
off-site.
FINDING: As a condition of approval:
Outdoor Lighting: 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.
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: Neither the Deschutes County Road Department nor the Deschutes County
Transportation Planner identified transportation infrastructure deficiencies or requirements.
3. Section 18.124.070. Required Minimum Standards.
A. Private or shared outdoor recreation areas in residential developments.
FINDING: The proposal does not involve residential development. Staff finds this criterion does
not apply.
B. Required Landscaped Areas.
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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.
FINDING: The applicant is proposing a marijuana processing facility, which is an industrial use.
However, staff finds that the siting of this use in a 800 square foot portion of a structure that is part
of a marijuana related operation that includes 10,000 square feet dedicated to the marijuana
production farm use does not make the primary use of the property "industrial development".
Moreover, the primary use of the property will continue to be marijuana production, which is not
an industrial use and is not subject to site plan review. Staff finds that these criteria do not apply to
this proposal.
2. in addition to the requirement of DCC 18.124.070(8)(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.
b. in addition to the landscaping required by DCC 18.124.070(8)(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:
1) Trees spaced as appropriate to the species, not to exceed 35
feet apart on the average.
2) Low shrubs not to reach a height greater than three feet zero
inches, spaced no more than eight feet apart on the average.
3) Vegetative ground cover.
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
five 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.
h. Maximum height of tree species shall be considered when planting
under overhead utility lines.
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FINDING: The parking area is not adjacent to a property line or roadway, as it is located over 100
feet from any such boundary and surrounded by native landscaping and irrigated pasture in excess
of the required landscaping above. As a condition of approval:
Landscaping: The landscaping in the vicinity of the parking adjacent to the buildings used for
marijuana processing shall be continuously maintained and kept alive and attractive.
C. Nonmotorized 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: Compliance with DCC 18.116.031 and 18.116.035 is discussed in findings for those
sections, above.
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 surfaced walkways and
similar techniques.
FINDING: This criterion does not apply, as the facility is not a commercial, office, or multi -family
residential development.
b. Pedestrian walkways shall connect building entrances to one another
and from building entrances to public streets and existing or planned
transit facilities. Onsite 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 walkways 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 five percent.
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Walkways up to eight percent slope are permitted, but are treated as
ramps with special standards for railings and landings.
FINDING: The applicant is proposing a marijuana processing facility in conjunction with the
marijuana production on the subject property in a single, combined building. There are no
designated pedestrian walkways along the roadway, adjacent to the site, or on the site itself. The
submitted application materials does not illustrate pedestrian walkways for the proposed facility.
Based on the decision of file CU -14-7, the Hearings Officer makes the following finding:
...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 for that use. Therefore, I find there is no need to apply these criteria to require
particular pedestrian circulation or walkways on the property.
Staff finds that the present application is similar in regards that there is a single building proposed
for the marijuana processing facility and thus no pedestrian walkways under these criteria are
required.
D. Commercial Development Standards...
FINDING: The proposed facility is not a commercial development. These criteria do not apply.
4. Section 18.124.090. Right of Way. Improvement Standards.
Any dedications or improvements to the road right of way required under DCC 18.124
shall meet the standards for road right of way improvements set forth in DCC Title
17 and any standards for right-of-way improvements set forth in DCC Title 18 for the
particular zone in question.
FINDING: The Deschutes County Road Department, Deschutes County Transportation Planner, nor
Oregon Department of Transportation identified transportation infrastructure deficiencies or
requirements.
IV. CONCLUSION
Based on the foregoing finding, staff concludes that the proposed marijuana processing facility and
marijuana production can comply with the applicable standards and criteria of the Deschutes
County zoning ordinance if conditions of approval are met.
V. DECISION
APPROVAL, subject to the following conditions of approval.
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VI. CONDITIONS OF APPROVAL
A. This approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the applicant. Any substantial change in this approved use will
require review through a new land use application.
B. The applicant shall assure that at least one-quarter of the farm crops processed at the facility
in any calendar year, measured by weight, are produced at the farm operation on the subject
property. In addition, the applicant shall provide to the Planning Division written
documentation of compliance with the requirement in paragraph DCC 18.16.025(1) by
submitting processed crop summaries to the Planning Division on request, and no less
frequently than on an annual basis by January 31 of each year.
C. Building_ Height: No building or structure, including greenhouses, shall be erected or
enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040.
D. No Outdoor Production or Processing: Marijuana production and processing is prohibited in
any outdoor area.
E. Maximum Mature Plant Canopy Size: The maximum canopy area for mature marijuana
plants shall not exceed 10,000 square feet at any time.
F. Li htin : The following lighting standards shall be met. Inside building lighting used for
marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m, on
the following day. Lighting fixtures shall be fully shielded in such a manner that all light
emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction,
is projected below the horizontal plane through the lowest light -emitting part. The light cast
by exterior light fixtures other than marijuana growing lights shall comply with DCC 15. 10,
Outdoor Lighting Control.
G. Odor: The proposed odor control system must at all times prevent unreasonable
interference with neighbors' use and enjoyment of their property. The odor control system
shall be maintained in working order and shall be in use.
H. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air
conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at
any property line between 10:00 p.m. and 7:00 a.m. the following day.
1. Fencing: Fencing shall be finished in a muted earth tone that blends with the surrounding
natural landscape and shall not be constructed of temporary materials such as plastic
sheeting, hay bales, tarps, etc.
J. Water: The use of water from any source for marijuana production shall comply with all
applicable state statutes and regulations including ORS 537.545 and OAR 690-340-0010.
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K. Security Cameras: Security cameras shall be directed to record only the subject property and
public rights-of-way, except as required to comply with requirements of the OLCC.
L. Waste: The marijuana waste receptacle shall be stored in a secured waste receptacle in the
possession of and under the control of the OLCC licensee.
M. Prohibited Uses: The uses listed in DCC 18.116.330(B)(20) shall be prohibited on the subject
property so long as marijuana production is conducted on the site.
N. Annual ReportiDZ: The annual reporting requirements of DCC 18.116.330(D) shall be met.
O. Glare. No glare producing material, including but not limited to unpainted metal or reflective
glass, shall be used on the exterior of structures located within an approach surface or on
nearby lands where glare could impede a pilot's vision.
P. 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.
Q. Outdoor Lighting: 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.
R. Dust: Areas used for vehicle standing and maneuvering associated with the marijuana
processing use shall be constructed with a surface that is adequately maintained for all
weather use (gravel or paved) and maintained in a manner that will not create dust problems
for neighboring properties.
S. Screening Tree and Shrub Cover: The existing tree and shrub cover screening the
development from the public right-of-way or adjacent properties shall be retained to the
maximum extent possible. This provision does not prohibit the maintenance of existing
lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest
products in accordance with the Oregon Forest Practices Act; or agricultural use of the land.
These criteria will be met.
T. Processing Safety Requirements: In order to mitigate potential hazards associated with
marijuana processing the use shall comply with the applicable building, fire, and OLCC safety
standards. The applicant shall submit documentation from the Bend fire department that
applicable fire regulations have been met prior to initiation of the use.
U. Landscaping: The landscaping in the vicinity of the parking adjacent to the buildings used
for marijuana processing shall be continuously maintained and kept alive and attractive.
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VII. DURATION OF APPROVAL:
The applicant shall complete all conditions of approval and obtain building permits for the proposed
use within two (2) years of the date this decision becomes final, or obtain an extension of time
pursuant to Section 22.36.010 of the County Code, or this approval shall be void.
This decision becomes final twelve (12) days after the date of mailing, unless appealed by a
party of interest.
DESCHUTES COUNTY PLANNING DIVISION
f Z �
Written by: Will Groves, Senior Planner
Reviewed by: Peter Gutowsky, Planning Manager
247 -18 -000198 -AD / 247 -18 -000199 -AD / 247 -18 -000200 -SP Page 40 of 40
Senator Floyd Prozanski
900 Court St NE, 5-413
Salem, OR 97301
August 10, 2018
RE: Deschutes County System Development Charges for Marijuana Production
Dear Sen. Prozanski,
Thank you for including Deschutes County in the Cannabis Work Group to discuss reasonable regulations and
system development charges (SDCs). The purpose of this letter is to share information regarding Deschutes
County's marijuana transportation SDCs.
Transportation SDCs are fees collected based on the increase in vehicle trips generated by a new or expanded
development pursuant to County Resolution 2013-020 (attached). SDCs are determined during the land use
review process, and are used to pay for growth's share of new and expanding infrastructure necessitated by
increased usage of roads.
We received the attached letter from the Oregon Farm Bureau dated June 18, 2018 expressing opinions regarding
our County's marijuana transportation SDCs. We respectfully disagree with the assumptions and conclusions. The
Legislature provided local governments with the ability to adopt reasonable time, manner, and place regulations
on marijuana production, processing, and dispensaries.
The Oregon Farm Bureau letter opines the County's authorization of marijuana grow operations does not qualify
as the issuance of a development permit under ORS 223.299(4)(a) and by extension the County cannot charge a
transportation system development charge (SDC). Again, we respectfully disagree with this opinion.
The County adopted Ordinances 2016-015 and 2016-019 which regulate marijuana operations in Deschutes
County via Deschutes County Code (DCC) 18.116.330 (Marijuana Production, Processing, and Retailing) and
18.116.340 (Marijuana Production Registered by the Oregon Health Authority (OHA)). Both titles appear in Title
18, the County's zoning ordinances. Both chapters require land use applications for marijuana production,
processing, and retailing.
Title 22 contains the County's development procedures. DCC 22.04.020 defines a development action as "the
review of any permit, authorization or determination that Deschutes County Community Development
Department is requested to issue." More specifically DCC 22.04.20 at A references the "application of a County
zoning ordinance..." DCC 22.20.04 defines land use action as "...any consideration for approval of a land use
permit." The term land use permit is then defined as "any approval of a proposed development of land under the
standards in the County zoning ordinances..." Finally, when providing examples of land use permits, DCC 22.04.20
offers several illustrative examples, including conditional uses and site plans. Taken together, the requirements
of DCC 18.116.330 and 340 and the definitions of 22.04.020 clearly demonstrate land use approvals of marijuana
grow operations qualify as a development permit.
Marijuana grow operations are distinctly different from other crops. For one, marijuana is the only crop required
in Deschutes County to be grown indoors. That factor alone, given the County's high altitude and low
precipitation, means marijuana can have far more harvests than say alfalfa. The harvesting of marijuana is labor
intensive. In fact, proponents of marijuana often cited the large number of jobs the industry would create in
Deschutes County prior to the election on whether to allow marijuana in Deschutes County. Jobs mean
employment, but jobs also mean additional vehicle trips. Finally, many growers are not able to use the local
irrigation districts for water due to federal regulations. Growers in such situations have turned to commercial
water haulers. Growers also turn to commercial water haulers when the canals are dry. This again means
marijuana grow operations produce more trips than a typical alfalfa farm. Taken together, the labor-intensive
nature of the crop, the yearlong growing and harvesting, the commercial delivery of water, and the various state
requirements for background checks and inspections, marijuana grow operations are distinctly different.
We do not agree with the interpretation of ORS 47513.491 on the prohibition of taxes and fees on marijuana grow
operations. The County views the statute's language and legislative history as a prohibition against taxes and fees
assessed explicitly and only on marijuana grow operations. Reading it as literally as the letter, then a local
government could not collect property taxes, land use application fees, building fees, or similar taxes and fees
collected on all other uses and properties. Obviously, ORS 47513.491 was not meant as a blanket exemption for
all taxes and fees collected by local jurisdictions.
Furthermore, in the 2017 Legislative session, the State of Oregon Legislative Counsel Committee issued an
opinion, at the request of Senator Ted Ferrioli, regarding whether or not the imposition of an SDC on marijuana
producers, processors and retailers qualifies as a fee for purposes of ORS 475B.491.1 Their legal opinion (letter
to Senator Ted Ferrioli dated May 18, 2017) was issued as follows:
We believe Deschutes County's SDC, as applied to marijuana producers, processors and retailers,
is not a fee on the production, processing or sale of marijuana items. Rather, Deschutes County's
SDC is a generally applicable fee imposed on any new development, varying only to account for
the amount of projected traffic that will be generated by the new development. The SDC is also
not imposed on the production, processing or sale of marijuana items in a discriminatory manner.
The rate of the SDC for marijuana producers, processors and retailers does not deviate from the
rate of the SDC for any other development. For purposes of comparison, when approving
construction of a church in an exclusive farm use zone, the board, taking into account the size of
the church property, determined that the church would generate 1.65 P.M. peak hour trips. As a
result, the transportation SDC imposed on the church was $6,356, a cost comparable to the
transportation SDC as applied to marijuana processors.
The County uses the Institute of Traffic Engineers (ITE) Trip Generation Manual to assess SDCs. The manual does
not have a rate for marijuana production or processing. The County has selected Warehouse (LU 150) as the
closest analog for marijuana production. This is one of the lowest trip generators in the ITE manual. The 10th
edition shows Warehouse generates 0.19 p.m. peak hour trips per 1,000 square feet. That rate is applied to
buildings used for production and support of production, not the size of the land parcel itself. This means a
marijuana production operation housed in 10,000 square feet would be assessed for less than two p.m. peak hour
trips (0.19 X 10). By comparison, a single-family home generates one p.m. peak hour trip.
At the time, the request was to review ORS 47513.345, which was renumbered to ORS 4758.491 in 2017.
Thank you for this opportunity to explain how and why the County's SDCs for marijuana operations are reasonable
and equitable. Please do not hesitate to contact us if you wish to discuss this further or we can provide additional
information prior to or at the next Work Group meeting on September 10.
June 18, 2018
Deschutes County Commission
Deschutes Services Building
1300 NW Wall Street, 2nd Floor
Bend, Oregon 97703
VIA EMAIL: board@deschutes.org
RE: Deschutes County Assessment of System Development Charges on Farm Uses
Dear Commissioners:
The Oregon Farm Bureau ("OFB") recently learned that Deschutes County has been assessing
System Development Charges (SDCs) on farm uses in farm zones, particularly marijuana grow
operations. OFB opposes the assessment of SDCs on farm uses in farm zones and asks
Deschutes County to reconsider their approach to SDCs for marijuana grow operations.
It appears that the only trigger for an SDC for marijuana grows in Deschutes County is the
County's land use approval of the grow operation. We disagree with the County's decision to
assess an SDC for marijuana grow operations, and we do not believe that the County's
authorization of a marijuana grow qualifies as the issuance of a "development permit, building
permit or connection to the capital improvement" under ORS 223.299 (4)(a).
We are also troubled by the County's rationale for assessing SDCs on marijuana grow
operations. The county found that:
Marijuana growing/production is not a typical farming operation as it requires
significant care and attention paid to each individual plant. In addition to
employment related trips associated with production, it is not unreasonable to
expect trip generation associated with typical commercial operations such as
deliveries, vendors, prospective client visits, security, etc.
These findings are misinformed. Many of Oregon's 220 commodities require care and attention
to individual plants, and all agriculture requires employment related trips related to the
agricultural production. There is nothing meaningfully distinct about marijuana production
sufficient to justify assessment of SDCs on growing marijuana. We are concerned about the
precedent set by the assessment of SDCs on farm uses in farm zones and ask Deschutes County
to reconsider the assessment of SDCs on marijuana grows.
Further, we are concerned that Deschutes County's imposition of SDCs on marijuana growing
operations violates the state legislature's prohibition on local governments imposing a tax or fee
on the production of marijuana items under ORS 475B.491. We urge the County to reconsider
its imposition of these fees on marijuana growers.
Thank you for the opportunity to comment on Deschutes County's Assessment of SDCs on
marijuana grows and please do not hesitate to contact me if you have any questions.
Respectfully,
�iP
Mary Anne Cooper
Public Policy Counsel
Oregon Farm Bureau Federation
(503) 399-1701 x 306
maryan.ne@oregonfb.org
iREVIE}V�D
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
A Resolution to Modify the Transportation
System Development Charges Established by * RESOLUTION NO. 2013-020
Resolution No. 2008-059 for Properties Within
Unincorporated Deschutes County.
WHEREAS, the Deschutes County Board of County Commissioners (".Board") held a duly noticed
public hearing on June 5, 2013, to consider modifying the transportation system development charge ("SDC")
originally established by Resolution No. 2008-059 to help fund transportation projects that are necessary to
serve the existing and growth -related needs in the unincorporated areas of the county; and
WHEREAS, ORS 223.297 through 223.314 authorize governmental units to establish and modify
transportation system development charges; and
WHEREAS, system development charges are incurred upon the decision to develop property at a
specific use, density and/or intensity, and the incurred charge equals, or is less than, the actual cost of providing
public facilities commensurate with the needs of the chosen use, density and/or intensity; and
WHEREAS, system development charges are separate from and in addition to any applicable tax,
assessment, charge, fee in lieu of assessment, or other fee provided by law or imposed as a condition of
development; and
WHEREAS, system development charges are fees for services because they are based upon a
development's receipt of services considering the specific nature of the development; and
WHEREAS, system development charges are imposed on the activity of development, not on the land,
owner, or property, and, therefore, are not taxes on property or on a property owner as a direct consequence of
ownership of property within the meaning of Section 11, Article XI of the Oregon Constitution or the legislation
implementing that section; and
WHEREAS, revenues from the system development charges are to be used for capital improvements in
the unincorporated areas outside the cities of La Pine, Sisters, Redmond and Bend; and
WHEREAS, the methodology proposed by Deschutes County Road Department ("Department") staff,
identifies the uses of an "improvement fee" SDC, and a "reimbursement fee" SDC, and considers the
transportation capital improvement needs of the unincorporated county; and
WHEREAS, the methodology proposes applying the SDCs to future development of properties within
the unincorporated county and outside the cities of Sisters, La Pine, Redmond and Bend; and
WHEREAS, the Board determined that it is in the public interest to provide transportation capital
facilities through the use of general county revenues, SDCs, and matching funds from the State of Oregon; now,
therefore,
Page 1 of 11 — Resolution 2013-020 (06/05/13)
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES
COUNTY, OREGON, as follows:
Section 1. The Board in Resolution No. 2008-059 adopted the report, titled Transportation System
Development Charge. Study prepared by FCS Group Inc. and DKS Associates, dated March 2008 (FCS Group
Report) which is hereby amended by a report titled "Transportation System Development Charge Update",
dated April, 2013, prepared by Deschutes County Road Department, attached as Exhibit "A" and incorporated
by reference (herein "Methodology" or "Methodology Report'). In the event of a conflict between the FCS
Report and Methodology Report, the latter shall control. The Board authorizes the assessment and collection of
transportation system development charges in the unincorporated areas of Deschutes County.
Section 2. The Board adopts the System Development Charge Project List, attached as Exhibit B," and
incorporated by reference ("Capital Improvement Plan"). The Capital Improvement Plan hereby supersedes the
capital improvement plan which was adopted as part of Resolution No. 2008-059.
Section 3. DEFINITIONS.
(A) "Applicant" shall mean the owner or other person who applies for a building or development
permit in the unincorporated areas of Deschutes County outside the boundaries of the cities of La
Pine, Sisters, Redmond and Bend.
(B) `Building" shall mean any structure, built for the support, shelter or enclosure of persons, chattels
or property of any kind.
(C) "Building Permit" shall mean an official document or certificate authorizing the construction or
siting of any building.
(D) "Capital Improvement" shall mean a public facility or asset used for Transportation in the
unincorporated areas outside the urban growth boundaries of the cities of La Pine, Sisters,
Redmond and Bend.
(E) "Citizen or Other Interested Person" shall mean any person whose legal residence is within the
unincorporated areas of Deschutes County outside the urban growth boundaries of the cities of La
Pine, Sisters, Redmond and Bend, as evidenced by registration as a voter, or by other proof of
residency; or a person who owns, occupies, or otherwise has an interest in real property which is
located within the unincorporated area of Deschutes County outside the urban growth boundaries
of the cities of La Pine, Sisters Redmond and Bend.
(F) "County" shall mean Deschutes County, Oregon.
(G) "Department" shall mean the Deschutes County Road Department.
(H) "Development" shall mean a building or other land construction, or making a physical change in
the use of a structure or land, in a manner which increases the usage of any capital improvements
or which may contribute to the need for additional or enlarged capital improvements.
(I) "Development Permit" shall mean an official document or certificate, issued by Deschutes
County, other than a building permit, authorizing development.
(7) "Encumbered" shall mean monies committed by contract or purchase order in a manner that
obligates the County to expend the encumbered amount upon delivery of goods, the rendering of
services, or the conveyance of real property provided by a vendor, supplier, contractor or Owner.
(K) "Improvement Fee" shall mean a fee for costs associated with capital improvements to be
constructed after the effective date of this resolution. Notwithstanding anything in this resolution
Page 2 of 11 — Resolution 2013-020 (06/05/13)
to the contrary, it is an incurred charge or cost based upon the use of or the availability for use of
the systems and capital improvements required to provide services and facilities necessary to meet
the routine obligations of the use and ownership of property, and to provide for the public health
and safety upon development.
(L) "Manufactured Housing" shall mean a dwelling unit constructed primarily off-site and transported
to another site for use. A unit located in a designated mobile home park shall be considered a
manufactured housing dwelling unit; otherwise a manufactured housing unit shall be considered a
single-family dwelling unit.
(M) "Multi -family housing" shall mean attached residential dwelling units.
(N) "Occupancy Permit" shall mean an official document or certificate authorizing the occupation or
use of any building or improvement authorized by a building permit.
(0) "Owner" shall mean the person holding legal title to the real property upon which development is
to occur.
(P) "Person" shall mean an individual, a corporation, including without limitation, limited liability
corporation, a partnership, an incorporated association, or any other similar entity,
(Q) "Qualified Public Improvement" shall mean a capital improvement that is:
(1) Required as a condition of development approval; and
(2) Identified in the capital improvement plan adopted pursuant to this resolution; and either:
(a) Not located on or contiguous to property that is the subject of development approval;
or
(b) Located in whole or in part on or contiguous to property that is the subject of
development approval and required to be built larger or with greater capacity than is
necessary for the particular development project to which the improvement fee is
related.
(R) "Reimbursement fee" means a fee for costs associated with capital improvements constructed or
under construction by the County on the effective date of this resolution.
(S) "Road Department Director" or "Director" shall mean the appointed Road Department Director of
Deschutes County, Oregon or the Director's designee.
(T) "Single-family housing" shall mean a detached residential dwelling unit located on an individual
lot.
(Lt) "System Development Charge" or "SDC" shall mean a reimbursement fee, an improvement fee,
or a combination thereof and an administrative recovery charge, assessed or collected at the time
of increased usage of a capital improvement or issuance of an occupancy permit. System
development charges are separate from and in addition to any applicable tax, assessment, fee in
lieu of assessment, or other fee or charge provided by law or imposed as a condition of
development.
(V) "System Development Charges Methodology" shall mean the methodology set forth in the FCS
Group Report as modified by the Methodology Report.
Section 4. APPLICABILITY.
Page 3 of 11 — Resolution 2013-020 (06/05/13)
(A) A Transportation System Development Charge is hereby assessed and imposed upon all new
development for which a building permit or a development permit is required and issued within
all unincorporated areas of the County outside the cities of La Pine, Sisters, Redmond and
Bend. From and after assessment, the transportation system development charge shall nun with the
property, not with any structure attached to the property. Development shall mean and include
new construction, alteration, expansion or replacement of a building or dwelling unit. Non-
residential, farm -related buildings for growing and/or storing agricultural products to be used on
site, and that do not generate additional commercial traffic, are exempt.
1) All development subject to payment of the City of Bend Transportation SDG via the Water
and Sewer Agreement between the City of Bend and Cascade Highlands Limited
Partnership (recorded agreement #2005-73584) shall pay 50% of the Transportation SDC
for the specific use.
(B) Consideration of existing use.
1) If construction, alteration, expansion, replacement, or change -of -use results in an increase in
the calculated number of peak hour trips generated by the development or the property on
which the development is located, as compared to the pre -development number of
calculated peak hour trips, then a new Transportation SDC shall apply. The amount of the
system development charge to be paid shall be the difference between the calculated trips
generated from the proposed development and the calculated trips generated from the
property prior to the construction, alteration, expansion or replacement. If the change in use
results in a Transportation SDC for the proposed use which is less than the Transportation
SDC for the use being replaced, then no new or additional SDC shall be assessed and no
refund or credit shall be given.
2) If the previous development or prior use of the property, which was not subject to SDC
payment, has been abandoned for at least two consecutive years, as determined by the
Community Development Department under the County Code, then no consideration of
existing use shall occur and a new SDC assessment shall apply. However, if such
development or use was discontinued due to fire, natural disaster or required demolition on
account of public health and safety, then the two-year time period will be extended to 10
consecutive years.
3) Previously paid SDCs shall be credited to the property regardless of any period of
abandonment. The credit shall be based on the number of PM peak hour trips generated by
the development at the time of original SDC assessment.
(C) The Transportation System Development Charges (SDC's) shall be determined as follows:
(1) For those land -use categories which are specifically identified in the most recent edition of
the Institute of Traffic Engineers (ITE) Trip Generation Manual or the Methodology Report
adopted pursuant to this resolution, the SDC amount shall be determined as identified in the
Methodology Report, unless otherwise approved by the Director.
(2) For land -use categories for which no trip generation rate is included in the Methodology
Report (or ITE Trip Generation Manual), the Director shall use the land -use category
identified in the Methodology Report (or ITE Trip Generation Manual) that is most similar
to the subject land use category and apply the corresponding trip generation rate. The
Director may consider seasonal and/or cyclical variations to adjust the calculation of peak
hour trip rates. An applicant who disagrees with the Director's decision may appeal this
decision as outlined in Section 12 of this Resolution.
Page 4 of 11 -- Resolution 2013-020 (06/05/13)
(D) Applicants may submit a request for an alternative trip generation rate and corresponding system
development charges for a development, subject to the following conditions:
(1) In the event an applicant believes that the trip generation impact on County capital
improvements resulting from the development is less than the trip generation rates used to
establish the SDC fee established by this Resolution, the applicant may submit a calculation
for an alternative system development charge to the Director, but no later than the issuance
of a building permit.
(2) The alternative system development charges rate calculations shall be based on data,
information and assumptions contained in this Resolution and the Methodology or an
independent source, provided that the independent source is:
(a) a study supported by a data base adequate for the conclusions contained in such
study;
(b) the study is performed using a generally accepted methodology and is based upon
generally accepted standard sources of information relating to facilities planning, cost
analysis and demographics;
(c) The demonstrated number of peak hour trips is at least ten (10%) percent less than the
number of peak hour trips set forth in the Methodology Report or otherwise
calculated by the Director pursuant to subsection (B) of this Section; and
(d) the demonstrated number of peak hour trips shall be documented by a registered
traffic engineer or otherwise qualified professional engineer.
(3) The Director shall issue a written decision within ten (10) working days from the date of
receipt of a complete application and shall notify the applicant by regular mail.
(4) If the Director determines that the data, information and assumptions utilized by the
applicant to calculate the alternative system development charges rates satisfy the
requirements of this subsection and have been timely submitted, the alternative system
development charges rates shall be paid in lieu of the rates set forth in or otherwise
determined by the Director under this Resolution.
(5) If the Director determines that the data, information and assumptions utilized by the
applicant to calculate the alternative system development charges rates do not satisfy the
requirements of this subsection or have not been timely submitted, the Director shall deny
the application and apply the rates established by the Director.
(E) Subject to the provisions of this Resolution, the County hereby assesses and shall collect a
transportation system development charge ("SDC") on the following schedule:
(1) at the initial rate of $3,758 per PM peak hour trip, consisting of a $3,625 improvement fee,
a $86 reimbursement fee, and a $47 administrative recovery charge.
(F) For SDC's that have been assessed, but not yet been paid as of the effective date of this
Resolution, the property owner shall pay the lesser of the applicable SDC charge determined
under Resolution No. 2008-059 or this Resolution.
(G) Unless otherwise adjusted by order of the Board of County Commission, on each succeeding July
1 after 2014, the SDC, consisting of the improvement fee, the reimbursement, if any and the
administrative recovery charge shall be adjusted by the annual percentage increase or decrease in
the construction cost index, published in the immediately preceding January by the Engineering
Page 5 of 11 — Resolution 2013-020 (06/05/13)
News Record for the City of Seattle, Washington. The calculation shall use the immediately
preceding July 1 and the then -applicable rate per peak hour trip as the starting point.
Section 5. COLLECTION.
(A) The Transportation SDC's shall be collected and paid in full no later than the date of submittal of
an application for an occupancy permit. An applicant may elect to pay an SDC over a ten-year
period under the provisions of DCC 15.12.060.
(B) In cases where an occupancy permit is not required, the Transportation SDC shall be collected and
paid in full no later than the date on which the property is used in the manner approved by the
development permit. An applicant may elect to pay an SDC over a ten-year period under the
provisions of DCC 15.12.060.
(C) Notwithstanding the receipt of an occupancy permit or the use of the property pursuant to a
development permit without payment of the SDC, the SDC liability shall survive and be a
personal obligation of the permittee.
(D) Intentional failure to pay the SDC within sixty (60) days of the due date shall result in a penalty
equal to fifty percent (50%) of the SDC. Interest shall accrue on and after 60 days after the due
date at the rate of nine (9%) percent per annum.
(E) In addition to an action at law and any statutory rights, the County may:
(1) Refuse to issue a Certificate of Occupancy;
(2) Refuse to issue any permits of any kind to the delinquent permittee for any development;
(3) Condition any development approval of the delinquent permittee on payment in full,
including penalties and interest;
(4) If the property becomes occupied prior to issuance of a Certificate of Occupancy, initiate
code enforcement proceedings;
(5) For purposes of this section, delinquent permittee shall include any person controlling a
delinquent corporate permittee and, conversely, any corporation controlled by a delinquent
individual permittee.
Section 7. CREDITS FOR DEVELOPER CONTRIBUTIONS OF QUALIFIED PUBLIC
MIPROVEMENTS.
(A) The County may grant a credit against the improvement fee portion, if any, of system
development charges imposed pursuant to this Resolution for the construction of any qualified
public improvement.
(B) Prior to issuance of a development permit, the applicant shall submit to the County a proposed
plan and estimate of cost for the applicant to construct one or more qualified public
improvements. The proposed plan and estimate shall include:
(1) a designation of the development project for which the proposed plan is being submitted;
(2) a legal description of any land proposed to be donated, if any, and documentation as to the
seller and purchase price;
(3) a list of the contemplated capital improvements contained within the development plan;
Page 6 of 11 — Resolution 2013-020 (06/05/13)
(4) an estimate of construction costs for the contemplated capital improvements certified by a
professional architect or engineer; and
(5) a proposed time schedule for completion of the proposed capital improvements.
(C) The credit provided for construction of a qualified public improvement shall be only for the cost
of that portion of such improvement that exceeds the minimum standard facility size and must be
designed and constructed to provide additional capacity to meet projected future transportation
needs. Projected future transportation needs shall be determined by reference to the Deschutes
County Transportation System Plan. Improvements that address capacity deficiencies existing at
the time of development are not, eligible. In the case of improvements addressing both capacity
deficiencies and adding future capacity, only that portion providing future capacity is eligible.
The applicant shall have the burden of demonstrating that a particular improvement qualifies for
credit.
(D) The Director is authorized to determine that the timing, location, design and scope of proposed
improvement are consistent with and furthers the objectives of the County's capital improvements
program and either:
(1) the improvement is required to fulfill a condition of development approval; or
(2) the improvement is within the impact area of the development. For purposes of this section,
impact area is that geographic area determined by the Director in which the estimated peak
hour traffic to be generated by the development exceeds ten (10°lo) percent of the existing
average peak hour traffic. Existing traffic volumes shall be those observed and measured
within six months prior to filing the development application, adjusted for daily and
seasonal traffic variations using factors provided by the Director.
(E) Credit eligibility shall be determined by the Director. in addition to meeting the standards of this
section, the following shall control:
(1) No credits shall be issued for design or construction costs associated with landscaping,
street lighting, storm sewers, sidewalks, and erosion control; or sound walls, berms or other
such mitigation devices.
(2) Road right-of-way required to be dedicated pursuant to the applicable comprehensive plan
or development condition is not creditable. The reasonable market value of land purchased
by the applicant from a third party that is necessary to complete a required off-site
improvement is creditable. The Director may require an applicant at the applicant's expense
to furnish an appraisal to determine the market value of such property.
(3) No credit shall granted for utility relocation except for that portion which otherwise
would have been the legal obligation of the County pursuant to a tariff, easement or similar
relationship if the project had been undertaken by the County.
(4) No credit shall be granted for minor realignments not designated on the comprehensive
plan.
(5) No more than 13.5 percent of the total eligible construction cost shall be creditable for
survey, engineering, inspection and permit fees.
(F) All requests for credit vouchers must be in writing and filed with the Director not more than 90
days after County acceptance of the improvement. Improvement acceptance shall be in
accordance with the County's policies, practices, procedures and standards. The amount of any
Page 7 of 11 — Resolution 2013-020 (06/05/13)
credit shall be determined by the Director and based upon the subject improvement construction
contract documents, or other relevant information, provided by the applicant for the credit. Upon a
finding by the Director that the contract amounts exceed prevailing market rates for a similar
project, the credit shall be based upon market rates. The Director shall provide the applicant with
a credit voucher, on a form provided by the Department. The original of the credit voucher shall
be retained by the Department. The credit voucher shall state a dollar amount that may be applied
only against the SDC otherwise imposed by the County against the subject property. In no event
shall a subject property be entitled to redeem credit vouchers in excess of the SDC imposed.
Under no circumstances will the County be required to pay an applicant in cash, as consideration
for the improvement. This paragraph applies only to issuance of credit vouchers and does not
extend the deadline for credit redemption or otherwise modify the credit redemption deadline.
(G) Credits shall be apportioned against the property which was the subject of the application to
construct an improvement eligible for credit. Unless otherwise requested, apportionment against
lots or parcels constituting the property shall be proportionate to anticipated average peak hour
trips generated by the respective lots or parcels. Upon written application to the Director,
however, credits shall be reapportioned from any lot or parcel to any other lot or parcel within the
confines of the property originally eligible for the credit. Reapportionment shall be noted on the
original credit voucher retained by the Department.
(H) Any credits issued pursuant to this Resolution are assignable, however, they shall apply only to
that property subject to the original condition for land use approval upon which the credit is based
or any partitioned or subdivided parcels or lots of such property to which the credit has been
apportioned. Credits shall only apply against SDC's, are limited to the amount of the
improvement fee attributable to the development of the specific lot or parcel for which the credit
is sought, and shall not be a basis for any refund.
(I) Any credit must be redeemed not later than the issuance of the occupancy permit. The applicant is
responsible for presentation of any credit prior to issuance of the occupancy permit. Under no
circumstances shall any credit redemption be considered after issuance of an occupancy permit,
(J) Credit vouchers shall expire on the date ten (10) years after the acceptance of the applicable
improvement by the county. No extension of this deadline shall be granted.
Section 8. FUND ESTABLISHED. The County hereby establishes a fund to be designated as the
"Countywide Transportation SDC Improvement Fee Fund," (herein Transportation SDC Fund or the Fund).
(A) All SDC payments shall be deposited into the Transportation SDC Fund immediately upon
receipt.
(B) The monies deposited into the Fund designated as the "Countywide Transportation SDC
Improvement Fee Fund," including interest on the Fund, shall be maintained separate and apart
from all other accounts of the County and shall be used solely for the purpose of providing the
capital improvements that provide for the increased capacity necessitated by new development,
including but not limited to:
(1) Design and construction plan preparation;
(2) Permitting and fees;
(3) Property acquisition, including any costs of acquisition, relocation or condemnation;
(4) Construction of capital improvements;
Page 8 of 11 — Resolution 2013-020 (06/05/13)
(5) Design and construction of storm and surface water drainage facilities associated with the
construction of capital improvements and structures;
(6) Relocating utilities associated with the construction of improvements and structures;
(7) Landscaping within the right of way or upon property disturbed by the construction of
capital improvements;
(8) Capital construction management and inspection;
(9) Surveying, soils and material testing;
(10) Acquisition of capital equipment used on association with capital construction or road
maintenance or both;
(11) Repayment of monies transferred to or borrowed from any budgetary fund of the County,
including interest, which were used to fund any of the capital improvements as herein
provided;
(12) Payment of principal and interest, necessary reserves and costs of issuance under any bonds
or other indebtedness issued by the County to fund capital improvements;
(13) Direct costs of complying with the provisions of ORS 223.297 to 223.314, including the
consulting, legal, and administrative costs required for developing and updating the SDC,
the methodology, resolution, and capital improvements master plan; administration of credit
applications and apportionment; and the costs of collecting SDC's and accounting for SDC
receipts and expenditures.
Section 9. INVESTMENT OF TRANSPORTATION SDC FUND REVENUE.
(A) Any funds on deposit in Transportation SDC Fund that is not immediately necessary for
expenditure shall be invested by the County.
(B) All income derived from such investments shall be deposited in the appropriate SDC trust fund
and used as provided herein.
Section 10. ANNUAL ACCOUNTING REPORTS. The Director shall prepare an annual report
accounting for SDC funds received, including the total amount of SDC improvement fee revenue collected in
each fund, and expenditures.
Section 11. CHALLENGE OF EXPENDITURES.
(A) Any citizen or other interested person may challenge an expenditure of SDC revenues.
(B) Such challenge shall be submitted, in writing on a form approved by the County, to the
Department for review within two (2) years following the subject- expenditure, and shall include
the following information:
(1) The name and address of the citizen or other interested person challenging the expenditure;
(2) The amount of expenditure, the project, payee or purpose, and the approximate date on
which it was made; and
(3) The reason why the expenditure is being challenged.
Page 9 of 11 — Resolution 2013-020 (06/05/13)
(C) If the Director determines that the expenditure was not made in accordance with the provisions of
this resolution and other relevant laws, a reimbursement of SDC fund revenues from other funds
shall be made within one (1) year following the determination that the expenditure was not
appropriate.
(D) The County shall make written notification of the results of the expenditure review to the citizen
or other interested person who requested the review within ten (10) days of completion of the
review.
Section 12. APPEALS AND REVIEW HEARINGS.
(A) An applicant who is required to pay system development charges shall have the right to request a
hearing to review a decision only in the following matters:
(1) A land -use category and/or seasonal/cyclical variations used by the Director to determine
the SDC amount pursuant to Section 4.
(2) An alternative rate calculation pursuant to subsection (C) of Section 4.
(3) A proposed credit for contribution of qualified public improvements pursuant to Section 7.
(B) Such hearing shall be requested by the applicant within thirty (30) days of the date of first receipt
of the Director's decision. Failure to request a hearing within the time provided shall be deemed a
waiver of such right.
(C) The request for hearing shall be filed with the Director and shall contain the following:
(1) The name and address of the applicant;
(2) The legal description of the property in question;
(3) If issued, the date the building permit or development permit was issued;
(4) A brief description of the nature of the development being undertaken pursuant to the
building permit or development permit;
(5) If paid, the date the system development charges were paid; and
(6) A statement addressing the decision subject to review set forth in subsection (A) of this
section and the reasons why the applicant is challenging the decision.
(D) Upon receipt of such request, the County shall schedule a hearing before the Board of
Commissioners at a regularly scheduled meeting or a special meeting called for the purpose of
conducting the hearing and shall provide the applicant written notice of the time and place of the
hearing. Such hearing shall be opened within forty-five (45) days of the date the request for
hearing was filed.
(E) Such hearing shall be before the Board of Commissioners and shall be conducted in a manner
designed to obtain all information and evidence relevant to the requested hearing. Formal rules of
civil procedures and evidence shall not be applicable; however, the hearing shall be conducted in
a fair and impartial manner with each party having an opportunity to be heard and to present
information and evidence.
(F) Appeal of the decision of the Board shall be made to the Circuit Court of Deschutes County.
Page 10 of I 1 — Resolution 2013-020 (06/05/13)
Section 13. FULL FORCE AND EFFECT. If any clause, section or provision of this resolution shall be
declared unconstitutional or invalid, the remaining portions of said resolution shall be in full force and effect and
be valid as if such invalid .portion had not been adopted. Nothing contained herein shall be construed as
invalidating any assessment or collection of system development charges pursuant to Resolution No. 2008-059,
nor any project funded in whole or in part with funds collected thereunder. In addition, all funds assessed and
collected pursuant to Resolution No. 2008-059, which have not been committed, shall be treated in the same
manner as funds received pursuant to Section 8 of this Resolution.
Section 14. EFFECTIVE. This resolution is effective immediately upon adoption by the Board of
County Commissioners. The SDC established by Resolution No. 2008-059 shall first apply to building permits
for which a building permit application is accepted by the County as complete on and after October 1, 2008. The
SDC established by Resolution No. 2013-020 shall first apply to building permits or development approvals for
which a building permit or development application was accepted by the County as complete on and after the
effective date of this resolution.
.A -
DATED this / �`fday of_ ,t"..f....., , 2013.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
2
Recording Secretary
Page I 1 of 1 1 — Resolution 2013-020 (06/05/13)
_Lg&L_-_
ALAN UNGER, Chair
TAMMY BANEY, Vice
ANTHONY DEBONE, Commissioner