2019-35-Minutes for Meeting December 12,2018 Recorded 1/15/2019•
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-6570
Recorded in Deschutes County CJ2019-35
Nancy Blankenship, County Clerk
Commissioners'Journal 01/15/2019 12:47:32 PM
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Present were Commissioners Phil Henderson and Anthony DeBone. Commissioner Tammy Baney was
present at 9:19 a.m. 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 identified representatives of the media were in attendance.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair DeBone called the meeting to order at 9:15 am
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT: None presented
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda. Commissioner Henderson requested pulling the minutes for
further review.
HENDERSON: Move approval of Consent Agenda Items 1 and 2
DEBONE: Second
BOCC BUSINESS MEETING DECEMBER 12, 2018 PAGE 1 OF 4
VOTE:
HENDERSON:
BAN EY:
DEBONE:
Consent Agenda Items:
Yes
Absent, excused
Chair votes yes.
Motion Carried
1. Consideration of Board Order No. 2018-077, to Name a Private Easement as
Lone Pony Lane
2. Consideration of Board Signature of Resolution No. 2018-046, Appropriating
New Grant Funds in the Deschutes County 2018-2019 Budget
3. Approval of Minutes of the October 1, 2018 Work Session
4. Approval of Minutes of the October 17, 2018 Business Meeting
5. Approval of Minutes of the November 7, 2018 Business Meeting
6. Approval of Minutes of the November 7, 2018 Work Session
7. Approval of Minutes of the November 26, 2018 Business Meeting
8. Approval of Minutes of the November 27, 2018 Public Hearing
9. Approval of Minutes of the November 28, 2018 Business Meeting
10.Approval of Minutes of the November 28, 2018 Work Session
ACTION ITEMS:
11.Consideration of Board Signature of Document No. 2018-694, an
Approval of a Conditional Use Permit and Site Plan Review for a Church
at 21420 Stevens Road
Cynthia Smidt, Community Development Department presented the item for
consideration and review of the revised document.
BAN EY: Move approval
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON:
DEBONE:
Yes
Chair votes yes. Motion Carried
BOCC BUSINESS MEETING DECEMBER 12, 2018 PAGE 2 OF 4
12. Consideration of Board Signature of Document No. 2018-671, an
Approval of a Conditional Use Permit and Site Plan Review for a public
park expansion at 21690 Neff Road
Cynthia Smidt, Community Development Department presented the
document for consideration. The record was closed on this item and
thereafter, deliberations (with just DeBone and Baney present) were held on
November 28. The Board engaged in further deliberations to clarify the
tentative positions articulated on November 28th. Commissioner Henderson
raised a few areas of concern. The Board reviewed several items for the plan
for the subject property and made additional findings/decisions. The
Findings/Decision document will be brought back to the Board for approval
on the December 19 Business Meeting.
13. Consideration of Board Signature of Document No. 2018-773, Approval
of Anderson Marijuana Production at 63775 Diamond Forge Road, Bend
Matt Martin, Community Development Department presented this document
for consideration.
BAN EY: Move approval as presented
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
14. DELIBERATIONS: High Desert Nectar LLC Marijuana Production, 6266
Byram Road
Jacob Ripper, Community Development Department presented the item and
BOCC BUSINESS MEETING DECEMBER 12, 2018 PAGE 3 OF 4
decision matrix for the Board to consider. Topics that address approval
criteria were discussed and decisions were made by the Board, reflecting a 2-
1 decision (Henderson opposed) approving the application. Findings and
Decision will be drafted and presented to the Board for approval during the
Board's meeting on December 19t"
OTHER ITEMS: None presented
gm11igg,
Being no further items to come before the Board, the meeting was adjourned at 10:56 a.m.
DATED this l ` Day of)�IC44LLZY 2018 for the Deschutes County Board of
Commissioners.
ANTHONY O ; ,. CHAIR
BOCC BUSINESS MEETING DECEMBER 12, 2018 PAGE 4 OF 4
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Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, WEDNESDAY, DECEMBER 12, 2018
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetings. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE., Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1. Consideration of Board Order No. 2018-077, to Name a Private Easement as Lone
Pony Lane
Board of Commissioners Business Meeting Agenda Wednesday, December 12, 2018 Page 1
of 3
2. Consideration of Board Signature of Resolution No. 2018-046, Appropriating New
Grant Funds in the Deschutes County 2018-2019 Budget
3. Approval of Minutes of the October 1, 2018 Work Session
4. Approval of Minutes of the October 17, 2018 Business Meeting
5. Approval of Minutes of the November 7, 2018 Business Meeting
6. Approval of Minutes of the November 7, 2018 Work Session
7. Approval of Minutes of the November 26, 2018 Business Meeting
8. Approval of Minutes of the November 27, 2018 Public Hearing
9. Approval of Minutes of the November 28, 2018 Business Meeting
10.Approval of Minutes of the November 28, 2018 Work Session
ACTION ITEMS
11. Consideration of Board Signature of Document No. 2018-694, an Approval of a
Conditional Use Permit and Site Plan Review for a Church at 21420 Stevens Road -
Cynthia Smidt, Associate Planner
12. Consideration of Board Signature of Document No. 2018-761, an Approval of a
Conditional Use Permit and Site Plan Review for a public park expansion at 21690
Neff Road - Cynthia Smidt, Associate Planner
13. Consideration of Board Signature of Document No. 2018-773, Approval of
Anderson Marijuana Production at 63775 Diamond Forge Road, Bend - Matthew
Martin, Associate Planner
14. DELIBERATIONS: High Desert Nectar LLC Marijuana Production, 62266 Byram Road
-Jacob Ripper, Senior Planner
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
Board of Commissioners Business Meeting Agenda Wednesday, December 12, 2018 Page 2
of 3
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific guidelines,
are open to the media.
., '
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Wednesday, December 12, 2018 Page 3
of 3
11
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o y Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of December 12, 2018
DATE: December 10, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2018-694, an Approval of a
Conditional Use Permit and Site Plan Review for a Church at 21420 Stevens Road
RECOMMENDATION & ACTION REQUESTED:
Staff recommends signature of Document No. 2018-694.
BACKGROUND AND POLICY IMPLICATIONS:
The Board's initial deliberations on October 17, 2018 were followed up by deliberations on
December 5 and December 10. The Board instructed staff to draft an approval in response to
the appeal of a Hearings Officer Decision approving the conditional use permit for the church
but denying the site plan review. The decision is now presented to the Board for consideration
of signature. The original file numbers are 247 -18 -000061 -CU / 62 -SP, and the appeal file
numbers are 247-18-000624A / 643-A (appeal of the Hearings Officer Decision).
MATERIALS: Available at meeting.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Cynthia Smidt, Associate Planner.
Packet Pg. 20
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -18 -000061 -CU, 247 -18 -000062 -SP (247-18-000624-A, 247-
18-000643-A)
APPLICANTS/ Father's House, Church of God Cleveland
OWNER: Randy Wills and Jack Miller
61690 Pettigrew Road
Bend, Oregon 97702
APPLICANTS' Wendie L. Kellington
ATTORNEY: Kellington Law Group PC
P.O. Box 159
Lake Oswego, Or 97034
APPELLANTS: Father's House, Church of God Cleveland'
Randy Wills and Jack Miller
61690 Pettigrew Road
Bend, Oregon 97702
Julie Naslund et a1.2
61645 Thunder Rd.
Bend, Or 97702
1 The applicants appealed the Site Plan Review file no. 247 -18 -000062 -SP (Appeal file no. 247-18-
000624-A).
2 Several parties join Julie Naslund on this appeal including Michael, Miles and Isabel Nevill, John
Schaeffer, Patti Bailey, James and Janet Lake, Gary and Karen Rogers, Tom and Beth Lomax, and
Kirman and Tracey Kasmeyer. Julie Naslund et al. appealed the Conditional Use Permit file no. 247-
18 -000061 -CU (Appeal file no. 247-18-000643-A).
Page 1
PROPOSAL: The applicants request a conditional use and site plan review to
establish a church in the Multiple Use Agricultural Zone.3
STAFF REVIEWER: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
HEARINGS OFFICER
DECISION ISSUED: July 31, 20184
APPEALS FILED: August 8, 2018 (Father's House Appeal 247-18-000624-A)
August 13, 2018 (Julie Naslund et al. 247-18-000643-A)
BOARD HEARING: August 27, 2018
RECORD CLOSED: September 20, 2018 at 5:00 pm
I. SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the
appellants' appeals of the July 30, 2018 Hearings Officer Decision (247 -18 -000061 -CU,
247 -18 -000062 -SP, "Hearings Officer Decision"). The Board exercised its discretion to
hear the appeals de novo. The Board received a memorandum about the appeals
from Associate Planner Cynthia Smidt, dated October 10, 2018, which outlined the
applicants' proposal, the Hearings Officer Decision denying site plan review and
approving the applicants' conditional use permit, and a summary of the key issues in
the two Notices of Appeal.
On October 17, 2018, at a regular business meeting, the Board deliberated on the two
appeals. Following deliberation, the Board voted 3-0 to affirm the Hearings Officer's
decision approving the applicants' conditional use permit for the proposed church,
finding that it complied with all applicable review criteria and standards of the
Deschutes County Zoning Ordinance. On the same day, the Board voted 3-0 to
overturn the Hearings Officer Decision denying the applicants' site plan review
application on the subject property, finding that it too complied with all applicable
review criteria and standards of the Deschutes County Zoning Ordinance. The Board
3 The applicants also requested a "Legal Lot Verification." However, the Hearings Officer approved
that application. No person appealed that approval and it is now a final decision that is not subject to
this Board's decision.
4 The Hearings Officers Decision mistakenly bears the date of August 30, 2018. That is incorrect. The
Hearings Officers Decision was issued by the Hearings Officer on July 30, 2018 and was mailed to
parties by County staff, on July 31, 2018.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 2
determined that it need not and does not reach the applicants/appellants' arguments
under the Religious Land Use and Institutionalized Persons Act (RLUIPA) or ORS
215.441. Although the Board notes that RLUIPA and/or ORS 215.441 may have
compelled a similar outcome, the Board accordingly reverses the Hearings Officers
Decision findings concerning both RLUIPA and ORS 215.441 because it is unnecessary
to reach either.
The applicants agreed to extend the 150 -day processing period for a final decision on
the two appeals for a period up to and including December 10, 2018
11. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, the County Zoning Ordinance
Chapter 18.04, Title, Purpose and Definitions
Chapter 18.32, Multiple Use Agricultural - MUA10
Chapter 18.124, Site Plan Review
Chapter 18.128, Conditional Uses
Chapter 18.116, Supplementary Provisions
Title 22, Deschutes County Development Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions of law set forth in Section II of the July 30, 2018 Hearings Officer
Decision, Exhibit A of this decision, as follows:' Basic Findings, subsections A
(Location), B (Zoning), C (Site Description), E (Surrounding Land Uses), F. (Proposal), G
(Public Agency Comments), I (Hearing and Record), J (Procedural Concerns). The
following additions are made to the Basic Findings in the Hearings Officer Decision.
J. PROCEDURAL CONCERNS
Due Process Claim
Under the heading of "Violation of Due Process," appellants Naslund et al. argue in
their appeal at page 4 that they "were not afforded a meaningful opportunity to be
put on a fair playing field" because "the applicant had a member of the church, who
happens to be a senior planner, obtain info not publicly available." As a result,
appellants Naslund et al. asked the Board to "deny the conditional use application
and give the applicant instructions to reapply." Id.
5 The Hearings Officer Decision skips the letters "Y and "H" in this section.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 3
The Board disagrees that the due process or other procedural rights of appellants
Naslund et al. were violated for the reasons articulated by the Hearings Officer and
supplemented herein. The Board declines to deny the application on this basis.
The documents at issue in the Naslund et al. appeal provided by the aforementioned
planner were public records. Specifically, while this matter was still before the
Hearings Officer, the planner provided at the applicant's request electronic copies of
previous hearings officer and board decisions, which are public records. Had
appellants Naslund et al. asked for the same documents before they discovered that
the applicants had sought those records, appellants Naslund et al. would have been
provided those public records as well. When appellants Naslund et al. discovered the
applicants had obtained these public records, after reviewing the applicants' May 8,
2018 first open record submittal, they too were provided copies of the same
documents that the planner had provided to the applicants. The open record period
was also reset to provide the appellants Naslund et al. time to review those same
records. Specifically, on May 21, 2018, the County provided appellants Naslund et al.
with copies of those public records. Further, the applicants extended the 150 -day
processing period to accommodate a "restart" of the first open record period, to June
4, 2018 to enable appellants Naslund et al. additional time to review such decisions
and submit comments about their significance into the record.
Notably, the aforementioned events occurred while the matter was before the
Hearings Officer. Following the appeal of the Hearings Officer's decision, the Board
elected to hear this matter in a de novo proceeding. As such, the Board finds that all
parties had a full and fair opportunity to present any additional arguments and any
additional evidence they wished during that de novo proceeding.
The Board finds that there was no due process or other procedural flaw in the above-
described processes necessitating denial of the applicants' application. Further, any
"advantage" the applicants' received in obtaining public records from the planner
while the matter was still before the Hearings Officer, was an "advantage" that the
appellants also fully received before the Hearings Officer with adequate time to
review and respond to the contents of such public records and with adequate time to
make their arguments and record. In any event, after May 18, 2018, all assistance to
the applicants bythe planner ceased, and the planner's previous involvement was not
germane or influential to this Board's fair and impartial consideration. The Board
conducted a full de novo hearing on August 27, 2018, at which time and after during
the open record period, any party could present any information they wished,
resolving any procedural irregularity if there ever was one.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 4
Transcript
1. Section 22.32.024. Transcript Requirement.
A. Except as otherwise provided in DCC 22.32.024, appellants shall
provide a complete transcript of any hearing appealed from, from
recorded magnetic tapes provided by the Planning Division.
B. Appellants shall submit to the Planning Division the transcript no later
than the close of the day five days prior to the date set for a de novo
appeal hearing or, in on -the -record appeals, the date set for receipt
of written arguments. Unless excused under DCC 22.32.024, an
appellant's failure to provide a transcript shall cause the Board to
decline to consider the appellant's appeal further and shall, upon
notice mailed to the parties, cause the lower Hearings Body's decision
to become final.
C. An appellant shall be excused from providing a complete transcript if
appellant was prevented from complying by: (1) the inability of the
Planning Division to supply appellant with a magnetic tape or tapes
of the prior proceeding, or (2) defects on the magnetic tape or tapes
of the prior proceeding that make it not reasonably possible for
applicant to supply a transcript. Appellants shall comply to the
maximum extent reasonably and practicably possible.
D. Notwithstanding any other provisions in DCC 22.32, the appeal
hearings body may, at any time, waive the requirement that the
appellant provide a complete transcript for the appeal hearing.
Appellants Father's House complied with the requirement to provide a transcript.
Appellants Naslund et al. did not provide a transcript and thus requested that the
Board waive the requirement as contemplated. The Board granted the request and
finds that appellants' Naslund et al. are excused from the requirement to provide a
transcript.
IV. FINDINGS
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions contained in the Hearings Officer's Decision in Section III,
Findings and Conclusions, except for the findings relating to the DCC Sections
identified below, and except for those unnecessary findings concerning both RLUIPA
and ORS 215.411.6
6 As noted above, we need not and do not incorporate the Hearings Officer decision approving the
applicants' application for a Lot of Record Verification. Specifically, the Hearings Officer's Findings,
appearing under the heading "Findings and Conclusions" section (A)(1), approves the applicants"'Lot of
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 5
The Board supplements the Hearings Officer Decision, as stated below. To the extent
there are conflicts between any of the findings identified in the incorporated terms of
the Hearings Officer Decision and the findings below, the findings and conclusions
below shall control.
CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE
2. Section 18.32.040. Dimensional Standards.
In an MUA Zone, the following dimensional standards shall apply:
D. Building height. No building or structure shall be erected or enlarged
to exceed 30 feet in height, except as allowed by DCC 18.120.040.
FINDING: The applicants proposed a building height of approximately 29.8 feet (29
feet, 10 inches). The Hearings Officer approved this building height. Although there
was concern regarding the overall size and scale of the structure, the Board concurs
with the Hearings Officer and approves the proposed height of the church building
as originally proposed.'
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[.]
Record" application. That application had a separate file number (247 -18 -000064 -LR) and the Hearings
Officer's findings approving it are an independent decision that was not appealed by any party.
Consequently, the Hearings Officer's decision approving the applicants' Lot of Record Verification
became final when the appeal period expired without challenge. Accordingly, this decision need not
and does not disturb or incorporate the Hearings Officer's Lot of Record findings, as no purpose is
served in doing so.
' The applicants provided an alternative building height slightly lower than originally proposed if the
Board found it necessary to comply with DCC 18.124.060(A). The Board sympathizes with the
applicant in its attempt to relate harmoniously with the general area and thus if the applicant choses
to build at a lower height, this decision does not preclude them from doing so. However, in this
decision, the Board does not require the applicant to build the church structure at the lower height.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 6
Z Adequacy of transportation access to the site, and
3. The natural and physical features of the site, including but not
limited to, general topography, natural hazards and natural
resource values."
FINDING: The applicants propose to construct a church on the subject property to
accommodate the religious needs of its congregation, whose faith requires that they
worship as a whole and requires that they educate their children and youth in a
manner appropriate to their age. The applicants argued that the current church
facility is too small to enable the congregation to worship as a whole or to attend to
the religious needs of its children and youth.
The Hearings Officer's findings conclude with the following:
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.
The Board concurs with the Hearings Officer and finds the site under consideration is
suitable for the proposed church.
B. The proposed use shall be compatible with existing and projected uses
on surrounding properties based on the factors listed in DCC
1&12&015(A).
FINDING: The Hearings Officer applied DCC 18.128.015(B) and considered the above
listed DCC 18.128.015(A) factors. After doing so, he determined that the proposed
church is compatible with projected and existing land uses on surrounding properties
and, as a result, he determined that the applicant demonstrated compliance with DCC
18.128.015(B). Appellants Naslund et al. appealed that determination. The applicant
requested that the Hearings Officer's approval of the conditional use permit be
affirmed.
At issue is the Hearings Officer's interpretation of DCC 18.128.015(B), which he
explained as follows:
Staff notes that hearings officer decisions have concluded that this criterion
is intended to require that the existing and projected uses on surrounding
lands will be allowed to continue. In other words, would the proposal
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 7
preclude or severely impact whether surrounding properties may continue
to be used for their existing use or develop in accordance with the Code?
The Hearings Officer further explained his interpretation of the "compatibility"
standard to evaluate whether "the impact on the surrounding residences would be
so great as to substantially interfere with or preclude residential use."
The Board recognizes that the applicant and opponents argue different analyses for
ascertaining and identifying the "surrounding area." The applicants used a general
analysis area of a roughly 1 -mile radius from the subject property and evaluated
existing and projected uses on properties in that area, without regard to how such
properties were zoned. The appellants Naslund et al. argued for a one-quarter (1/4)
mile radius around the subject property as the appropriate distance. Moreover, they
also argued that MUA Zone properties and other surrounding zones (e.g. EFU) should
be considered "surrounding properties."
Although not specifically defined as such, the Hearings Officer used an approximate
area that was roughly one -mile radius area. This area included the 640 -acre parcel
owned by the State of Oregon ("DSL") to the south, a distance to the west within the
city limits described as "related urban density residential development," and an
undetermined distance to the north and east. The Staff Report and Hearings Officer's
analysis was not limited to particular zoning districts.
The Board finds that to determine whether a proposed conditional use is compatible
with an area as it now exists, or as it is projected to exist in the future, it requires
consideration of a large enough area to reasonably ascertain what the existing uses
of properties in a general area are that might be affected by a proposed conditional
use. In addition, it can require consideration of existing and projected development
patterns for such properties. Further, where an area is subject to probable change,
as here, evaluating properties subject to and affected by that anticipated change is
important to determine compatibility under this standard.
Notwithstanding the above, the Board does not find it necessary in this case to define
specifically the "surrounding area" by a distance or a zone but rather takes a broad
view of the surrounding area to evaluate existing and projected uses. For all intents
and purposes, this area may very well be less than a 1 -mile radius but greater than
250 feet and inclusive of multiple zoning districts. This area is likely to pick up
sensitive land uses, benefitted land uses, and existing and projected development
patterns - all of which are relevant to this analysis. It may be that some conditional
uses would require an even larger area, because of their peculiar impacts; but this
analysis area is adequate and appropriate in this case. The Board specifically finds
that it is appropriate for the analysis area because the purpose of the analysis is not
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 8
to invite controversies over measurement perfection, but rather to understand
existing and projected uses in a given "surrounding' area.
The Board acknowledges that the surrounding properties in this area include a variety
of existing uses including a mixture of rural residential uses, small-scale farm uses,
and increasing urban development. The Board also recognizes that the surrounding
area will include projected uses of single-family dwellings, agricultural uses, and
urban development. Moreover, the proposed church is a type of use that typically is
established in residential areas similar to the surrounding area and thus an expected
and projected use. The DSL -owned lands south of Stevens Road are or expect to be
included within the Bend Urban Growth Boundary (UGB). Although this area is
currently undeveloped open space, it is intended to be used in the future for urban
development as indicated in the record. In the alternative, the Board finds that even
if the MUA-zoned portion of this DSL -owned parcel were projected to develop only
with those uses permitted outright and conditionally in the MUA Zone, then that 260
acres would reasonably be projected to develop with residences, agricultural
buildings, and other uses permitted outright or conditionally in the MUA Zone. In
addition, the surrounding properties possess similar topography and vegetation,
including varying terrain primarily vegetated with scattered juniper trees or
introduced landscaping, native grasses and shrubs.
The image on the next page illustrates the mixture of zoning in the surrounding area,
which includes the MUA Zone, EFU Zone, Urbanizable Area (UA) Zone, and zoning
districts within the City of Bend and urban reserve.$
8 For reference, the MUA Zone is highlighted in yellow, UA Zone is blue, EFU Zone is brown.
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694 Page 9
Northern area
n
247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A
Document No. 2018-694
Church Site
I DSL I
Page 10
A general estimate of how the DSL -owned parcel south of Stevens Road is projected to
develop is reflected in the Conceptual Plan for the entire DSL property as shown below:
Stevens Road Tract - Master Plan
Stevens Road Tract Master Plan • Department of State Lands
April, 2007
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After identifying the "surrounding properties" and the projected and existing uses on
those properties, the Board takes note that the next step is to identify whether the
proposed church is compatible with those existing and projected uses in the
surrounding area, based on the specific factors of DCC 18.128.015(B).
Those factors focus on the characteristics of the proposed site and the characteristics
of the proposed use of the site:
1. Site, design and operating characteristics of the use(.]
2. Adequacy of transportation access to the site; and
3. The natural and physical features of the site, including but not limited to,
general topography, natural hazards and natural resource values."
Based on the record, the Board finds the Hearings Officer correctly generally
identified the site, design, and operating characteristics of the proposed church.
Furthermore, the Board takes note of additional clarifications and modifications (e.g.
landscape plan) to the proposal as presented by the applicant during the hearing
process. The Board recognizes the steps taken by the applicants demonstrating that
its design impacts and use of the site are not so great as to substantially interfere
with, severely impact or preclude residential or any other existing or projected use.
The Board agrees with the applicants and finds that churches are typically situated in
areas where there are residential uses. The proposed church is a type of use that
typically is established in residential areas and indeed the existing church facility is in
a residential area in Bend where it exists compatibly with the existing residential uses
that are there. Several other churches exist in the County and City in residential areas
including ones that are similar to the immediate area surrounding the subject
property. The Board agrees with and adopts the Hearings Officer's finding below:
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
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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.
Since the opposition raised concern regarding some of the church's operational
characteristics, in particular operations of a preschool, the Board briefly reviews this
aspect of the proposal. The applicant provides the following summary of the
operational characteristics9 of the proposed church:
The church use will primarily occur on Sunday with services. The church
use will include other uses accessory to churches including, but not limited
to, Sunday school, youth group, Bible studies, weddings, and administrative
meetings. These accessory uses may occur on other days of the week.
Appellants Naslund et al. argue that the church may run an otherwise undisclosed
preschool Monday through Friday at the site and that this is an operational
characteristic that will adversely impact them. The Board finds that this claim is
unsupported. However, the Board is sensitive to the neighbors' concerns regarding
the operation of a preschool not affiliated with the church. The applicants stated, and
the Board finds, that there is no proposal to run a preschool Monday through Friday
at the site and so daily preschool is not a part of the operating characteristics of the
proposal.90 To ensure compliance, the Board conditions the approval that private or
parochial school education for prekindergarten through grades 12 or higher is not
permitted unless approved through a subsequent land use application and does not
authorize operation lease or operation of a daycare not affiliated with church
functions.
Concerning the "adequacy of transportation access to the site" factor of DCC
18.128.015(A), the Board relies upon and adopts the applicants' transportation study
finding that it and the evidence in the record establishes that access to the site from
Stevens Road is adequate to support the proposed church. Moreover, Stevens Road
has adequate capacity, there are no particular safety issues associated with the
9 The Board takes note of the detailed explanation of the church's operational characteristics provided
by Associate Pastor Wills during the hearing process.
10 The church will operate its Sunday school and related child and youth spiritual programs directly
associated with the mission of the proposed church. The church will not operate a daily Monday
through Friday preschool or for hire preschool under the proposal we approve in this decision.
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proposed church access, and that there is adequate site distance on Stevens Road.
No access will be taken off Thunder Road. The Board concurs with the Hearings
Officer and concludes that with regard to the proposed transportation impacts under
this factor that those impacts are not so great as to substantially interfere with,
severely impact or preclude residential use or any other projected or existing use on
surrounding properties.
The factor regarding natural and physical features of the site in DCC 18.128.015(A),
the Board finds the natural features on the site are some existing juniper trees and
other vegetation along Stevens and Thunder Roads and along the property lines,
which will largely remain intact. While existing views across vacant areas of the
subject property and across the DSL -owned parcel are current natural features
appreciated by the neighboring properties, this standard does not require that those
views remain unaffected by permitted or conditional uses of the subject property now
or in perpetuity. The applicants' Landscape Plan submitted on August 27, 2018,
contemplates vegetation landscaping around the perimeter of the property to
improve and maximize the site's attractiveness. The proposed landscaping will also
minimize views of the proposed church and parking area from surrounding existing
and projected uses. Therefore, the Board finds the proposed development is
reasonably situated and adequate mitigation measures have been taken with regard
to natural and physical features of the site.
For all of the above reasons, the Board finds that the proposed church has
demonstrated that it is compatible with the existing and projected uses in the
surrounding area considering the required factors and therefore complies with DCC
18.128.015(B).
CHAPTER 18.124. SITE PLAN REVIEW
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 Hearings Officer denied the applicants' proposed site plan based on
the Hearings Officer's interpretation of DCC 18.124.060(A). In doings so, the Hearings
Officer applied a new interpretation of DCC 18.124.060(A) to essentially require an
alternatives analysis, whereby an applicant must show that there is no other
mitigation or site design possible. The Hearings Officer's interpretation makes it
difficult for an applicant or the County to know when an applicant has evaluated a
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sufficient number of alternatives to demonstrate compliance. The applicants
appealed the Hearings Officer's denial and challenged the Hearings Officer's
proffered interpretation. The appellants Naslund et al. asked that the Board sustain
the Hearings Officer's interpretation. As discussed below, the Board grants the
applicants' appeal and rejects the Hearings Officer's interpretation of DCC
18.124.060(A). As such, the Board approves the applicants' proposed site plan, as
explained in detail below.
The Board agrees that DCC 18.124.060(A) is subjective and, at times, difficult to apply
as the Hearings Officer observed. However, as the Board interprets the provision,
DCC 18.124.060(A) does not require a particularly onerous exercise. It requires an
applicant to show that its proposed site plan relates "harmoniously" to the natural
environment and existing development. Unlike the conditional use standards of DCC
18.128.015(B), this standard does not indicate harmony achieved with "surrounding
properties." However, the Board understands that the standard implies that the
proposed development shall relate harmoniously on and off the subject property and
generally speaking, in the vicinity, by "minimizing visual impacts and preserving
natural features including views and topographical features."
The code does not define what it means to "relate harmoniously." The Hearings
Officer reported that the online Oxford Living Dictionary defines "harmoniously' to
mean arranging something "in a way that forms a pleasing or consistent whole." Both
parties in this case, provided various interpretations of the term "harmonious." The
Board is not adopting one interpretation of the term over another as each contributes
equally to this evaluation. The Board concurs with the Hearings Officer that there is
no "particularly useful case law defining or applying this term." In addition, the Board
agrees, that the Hearings Officer is correct that a site plan should be approved in light
of this meaning of "harmonious," so long as the proposed site plan does not create
,'more disharmony than other uses allowed by right or conditionally in the MUA-10
zone." In this regard, the Board finds that this standard presumes the use is approved
and evaluates only whether the site plan for the use "relates harmoniously." The
Board finds that the proposed church site plan meets the standard set forth in DCC
18.124.060(A).
Specifically, the Board interprets DCC 18.124.060(A) to mean that an applicant must
demonstrate that the site plan has arranged the development in a way that evaluates
the natural environment and existing development in the area and in the process has
minimized visual impacts and reasonably preserved natural features including views
and topographic features. Minimizing visual impact, as with this case, may include
introduced landscaping, design layout, and specific design elements such as siding
and roofing color and material. In doing so, this enables the County decision maker
to find that the site plan's impacts create no more disharmony than other uses
allowed by right or conditionally in the MUA Zone.
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The Board agrees, in part, with the Hearings Officer that this standard is considered
differently when compared to the term "compatibility" and its associated standard of
DCC 18.128.015(8). The chief differences between the two standards is that the DCC
18.128.015(B) compatibility standard evaluates the compatibility of the proposed use
on existing and projected uses of surrounding properties and does so in light of specific
factors that are not reproduced in DCC 18.124.060(A). The DCC 18.124.060(A)
"harmonious" standard evaluates whether a proposed site plan "relates harmoniously
to existing development and the natural environment" considering whether the site
plan shows that the applicant has reasonably mitigated its impacts and reasonably
preserved views. The Board observes that not every use that requires site plan
approval also requires a conditional use permit. However, the Board finds that it is
possible that a permitted or approved use is arranged so poorly on a site, that a
proposed site plan must be denied under this standard. That is not the case here.
The Board finds that the proposed church has demonstrated that its site plan relates
harmoniously to the identified existing natural environment and existing
development in the area; and that its site plan reasonably preserves the natural
features (including views and native vegetation), while still establishing the approved
church use on the site. The Board finds that the size of the proposed church is well
within the size (including original parking size of 118 spaces as discussed below) of
uses that exist in the surrounding properties area and that the zoning district allows
on this exact property, as of right and conditionally. The Board finds that the site plan
demonstrates that lights for the church, as modified before the Hearings Officer, are
mitigated and out of the line of sight of residential uses. The amount of landscaping,
as proposed before the Board and further discussed below, also demonstrates that
the proposed church's visual impacts have been mitigated.
The Board reverses the Hearings Officer's denial of the church's site plan because the
church has met the standard expressed in DCC 18.124.060(A) as it has been applied
in the past and as it is correctly applied here. The Board also finds, based on the
collective record below, the applicants have demonstrated that the development
layout on the subject property was a reasonable option for them and that would
better comply with the DCC 18.124.060(A) standard. The church's site plan is
approved.
J. All exterior lighting shall be shielded so that direct light does not
project off-site.
FINDING: As noted, the applicants proposed to orient the church building diagonal
to the road, to minimize the building's intrusion on views from adjacent residential
uses. Moreover, the applicants ensured that the parking area lighting will be out of
the line of sight of residential uses of surrounding properties, including of the
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appellants' Naslund et al. residential uses. The applicants reduced the number of tall
light poles in its parking area in an effortto increase its compatibility with surrounding
properties - and relate harmoniously with the natural environment and existing
development. The Board supports the lighting plan revision generally as presented
to the Hearings Officer as an effort to mitigate impacts to neighboring properties. In
his May 5, 2018 letter, Matthew Williams of CA Rowles Engineering & Design describes
the lighting plan revision as the following:
Regarding site lighting, initially, 11 LED light poles, 22.5'tall, were proposed
throughout the parking lot. Upon revision, 3 LED light poles, 20.0' tall, are
proposed across the southwest building elevation, and the remaining lights
are now proposed to be 3.5' bollard lights. Additionally, the easternmost of
the 3 LED light poles has been relocated to the median adjacent to the
building, to further screen light emissions from residential properties to the
east. These changes will serve to further limit light emissions from pole -
mounted sources by reducing both height and quantity of pole mounted
lights.
The applicants lighting plan revision places the taller poles in the portion of the
parking area where they are outside of existing residential uses' line of sight. The
applicants also proposed additional landscaping that would be effective in softening
its impact of the parking lot lighting and development. The Board concurs with the
Hearings Officer in approving this criterion. To ensure compliance, the Board
conditions the approval that will require the parking area be developed with only
three taller light poles, as proposed, and the remaining lights be lower bollard style
lights, as proposed. Moreover, all lighting on the subject property shall be required
to comply with Chapter 15.10, the Outdoor Lighting Control Ordinance.
CHAPTER 18.116, SUPPLEMENTARY PROVISIONS
2. Section 18 116.030. Off Street Parking and Loading.
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.
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FINDING: The applicants are 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 in DCC
18.116.030(D)(4), the required parking for the church is 82 parking spaces. The
applicants' original site plan dated January 10, 2018 included 118 parking spaces. The
applicants modified the parking plan with the intention to mitigate visual impacts to
surrounding property owners. The revised plan included 99 parking spaces. The
Hearings Officer approved the revised parking plan that included 99 spaces.
However, this reduction will leave "little margin of error" according to the applicants'
traffic engineer, Joe Bessman of Transight Consulting, in his May 8, 2018
supplemental memorandum. Furthermore, Mr. Bessman points out that there are
no overflow parking areas nearby if the 99 -space parking lot is inadequate for the
demand. In part to prevent overflow parking occurring on Stevens Road, the Board
approves the original proposal of 118 parking spaces as appropriate for the proposed
church use. In conjunction with approval of 118 parking spaces, this decision
mandates and compels the applicant to provide for a minimum of 99 parking spaces.
Thereafter, the applicant may provide up to 19 additional parking spaces.
Notwithstanding the allowance of 99 to 118 parking spaces, the Board encourages all
parking to occur on-site during larger events or services, which will reduce the
potential impact in the neighborhood and Stevens Road. Together with the additional
landscaping discussed below and the lighting plan approved by the Hearings Officer,
Board finds the visual impacts of the slightly larger parking area will be mitigated. As
a condition of final approval, the applicants shall provide a final site plan that
illustrates the original 118 parking spaces together with the revised landscape plan
dated August 21, 2018, as discussed below. Included on the final parking plan that
shows the original configured 118 parking spaces, it shall identify the 99 parking
spaces that will be developed initially with the church use. The 99 parking spaces
shall be those closest to the church building. The final parking plan shall also depict
the additional 19 spaces that may be developed concurrently with the 99 spaces or
may be developed, in whole or in part, at a later point in the future.
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 Hearings Officer admittedly struggled with applying DCC
18.116.030(F), and stated that if the Church were otherwise approved, additional
conditions of approval would be required. Specifically, the Hearings Officer noted
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conditions of approval requiring additional landscaping or a sight obscuring fence to
screen a particular area of the parking lot that was identified by staff (page 28-29 of
the Hearings Officer's Decision). The Hearings Officer felt this would be necessary,
because although this particular area is adjacent to a neighboring field, the field is
owned by people who occupy the nearby residence on the same property. Since the
Hearings Officer denied the Church's site plan, the Hearings Officer also denied the
Church on his interpretation of DCC 18.116.030(F).
Although the Board did not define what it means to be "adjacent to residential use,"
the Board agrees this criterion can be site specific. The Board is of a similar opinion
with the Hearings Officer in the sense that a parking area is different to other
residential uses in the area and, in some cases, warrants some type of screening from
residential properties. In this case, the Board agrees that screening is necessary for
the most impacted neighboring property, which is located at 61645 Thunder Road
(owners Julie Naslund and Michael Nevill). Thus, the Board reverses the Hearings
Officer's denial regarding this section as discussed below.
At the public hearing on August 27, 2018, the applicants presented a revised
landscaping plan dated August 21, 2018." In addition to the original landscaping plan
submitted with the application, the August 21 revision included supplemental
landscaping plants around the north side of the church building and the parking lot.
Furthermore, it provided three screening alternatives for the specific section along
the northern property boundary that is referenced above. The three screening
alternatives are for a region that is roughly centered along the northern property
boundary and approximately 250 feet in length. The alternatives include the
following: "Alternative A" is comprised of just fencing, "Alternative B" is comprised of
just landscaping, and "Alternative C" is comprised of a mix of fencing and landscaping.
The Board accepts this landscape plan and conditions the approval of said land use
permit based on the collaboration between the applicants and the adjacent property
owner (Naslund and Nevill) to come to a compromise on what is the best alternative(s)
- Alternative A, B, C, or another mutually agreed upon (in writing) alternative - to
reasonably screen the proposed parking area from the adjacent residential property.
As a condition of approval, the applicants shall provide a proof of acceptance by the
neighboring property owner (Julie Naslund and Michael Nevill) regarding the
screening alternative that will be established with the church development. If the
neighboring property owner is accepting of more than one of the identified screening
alternatives, then it is the applicants' prerogative as to what screening alternative of
those chosen by the neighboring property. In addition, to ensure that negotiations
are facilitated in a timely manner, the Board requires that, if the applicants have not
" The Landscape Design Plan with a revision date of August 21, 2018 was created for Father's House
by Springtime Landscaping & Irrigation Inc. and revised by CA Rowles Engineering.
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received proof of acceptance after 45 days from the date after first contacting the
neighboring property owner, the applicants' also have the prerogative as to what
screening alternative is used. The applicants shall provide a final landscape plan that
illustrates the revised landscape plan dated August 21, 2018, and the selected
alternatives along the north property boundary.
V. DECISION
Based on the findings of fact and conclusions of law set out above, the Board hereby
sustains the Hearings Officer approval of the applicants' Conditional Use Permit. The
Board further overturns the Hearings Officer's denial of the proposed Site Plan
Review, in particular DCC 18.124.060(A), and overturns the Hearings Officer's denial
under DCC 18.116.030(F).
VI. CONDITIONS OF APPROVAL
A. Approval is based upon the submitted application materials, as modified by
the Board above.
B. 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
grades 12 or higher unless approved with a subsequent land use permit. It
does not authorize operation lease or operation of a daycare not associated
with church functions as detailed in the record.
C. Prior to issuance of any building permit for the church, the applicants shall
submit to the Planning Division a final site plan 12 illustrating the following:
1. The parking and maneuvering area as illustrated on the January 10,
2018 original site plan that includes 118 parking spaces and as further
defined here:
a. Shall identify the 99 parking spaces that will be developed
initially with the church use, and
b. The 99 parking spaces shall be those closest to the church
building, and
C. Shall depict the additional 19 spaces that may be developed
concurrently with the 99 spaces or may be developed, in whole
or in part, at a later point in the future
12 If the applicants chose to provide one final site plan illustrating both the site plan required in
Condition C and the landscape plan required in Condition D, the Board accepts this alternative
submittal.
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D. Prior to issuance of any building permit for the church, the applicants shall
submit to the Planning Division a final landscape plan (see footnote 42)
illustrating the following:
1. Landscape plan as illustrated on the landscape plan dated August 21,
2018
2. The agreed upon and selected screening alternative - Alternative A, B,
C, or another mutually agreed upon (in writing) alterative - for a
segment along the northern property boundary as illustrated on the
landscape plan dated August 21, 2018 and as decided by neighboring
property owner (Julie Naslund and Michael Nevill). If the neighboring
property owner is accepting of more than one of the identified
screening alternatives, then it is the applicants' prerogative as to what
screening alternative of those chosen by the neighboring property
owner. In addition, if the applicant has not received proof of
acceptance after 45 days from the date after first contacting the
neighboring property owner, the applicants' also have the prerogative
as to what screening alternative is used.
E. Required landscaping shall be continuously maintained and kept alive and
attractive.
F. All areas of the property proposed for standing and maneuvering of vehicles
shall be paved surfaced with all-weather materials and will be sloped to allow
for surface water drainage on-site to designated stormwater infiltration basins
and landscape beds. Alternatively, the area for standing and maneuvering of
vehicles shall be gravel surfaced and maintained in a matter in which it will not
create dust problems for the neighboring properties. During larger events or
services, in order to reduce potential impacts in the neighborhood and on Stevens
Road, the applicant shall, to the best of its ability, encourage all parking to occur
on the subject property.
G. 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.
H. The proposed development and parking area must meet any applicable
provisions of the Americans with Disabilities Act (ADA).
I. All walkways that cross driveways, parking areas, and loading areas shall be
clearly identifiable using striping or similar method.
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J. Regarding driveway access to Stevens Road, the applicant is subject to the
following requirements:
1. Prior to issuance of a building permit for the church, the applicants
shall obtain a driveway access permit for the proposed access to
Stevens Road pursuant to DCC 12.28.050, 17.48.210, and 18.124.080.
2. 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).
3. If road improvements are required as a condition of approval based on
City of Bend requirements for roads within the UGB:
a. 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.
b. 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.
4. No later than construction of the new driveway access onto
Stevens Road, the applicant shall close the existing driveway access
that serves the existing house to vehicle traffic. This former access shall
be converted to a pedestrian pathway, as proposed, and clearly marked
as such.
K. In addition to the setbacks set forth herein, any greater setbacks required by
applicable building or structural codes adopted by the State of Oregon and/or
Deschutes County under DCC 15.04 shall be met.
L. The applicant shall obtain any necessary permits from the Deschutes County
Building Division.
M. The proposed lighting plan for the parking area, as described in the May 5,
2018 letter by Matthew Williams of CA Rowles Engineering & Design, shall be
developed as follows:
1. 3 LED light poles, approximately 20 feet tall, oriented across the
southwest building elevation and located on the median adjacent to
the building.
2. Remaining lights will be approximately 3.5 -foot bollard lights.
All lighting on the subject property shall be required to comply with Chapter
15.10 of the Deschutes County Code, the Outdoor Lighting Control Ordinance.
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All exterior lights shall be sited and shielded so that no direct light projects off-
site.
N. All signs shall be constructed in accordance with the provisions of DCC 15.08.
Dated this 12th day of December, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION
TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS
DECISION IS FINAL.
EXHIBITS
A. Hearings Officer's decision dated July 30, 2018
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Document No. 2018-694 Page 23
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of December 12, 2018
DATE: December 5, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2018-761, an Approval of a
Conditional Use Permit and Site Plan Review for a public park expansion at 21690 Neff
Road
RECOMMENDATION & ACTION REQUESTED:
Staff recommends signature of Document No. 2018-761.
BACKGROUND AND POLICY IMPLICATIONS:
On November 28, 2018, the Board deliberated on this matter and instructed staff to draft an
approval in response to the appeal of a Hearings Officer Decision approving the conditional
use permit and site plan review for the park expansion. The decision is now presented to the
Board for consideration of signature. The original file numbers are 247 -18 -000105 -CU / 164 -
SP and the appeal file number is 247-18-000745 (appeal of the Hearings Officer Decision).
FISCAL IMPLICATIONS: None.
ATTENDANCE: Cynthia Smidt, Associate Planner.
� I
�l
LEGAL t.
NSEL
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -18 -000105 -CU, 247 -18 -000164 -SP, 247-18-000745-A
APPLICANT/ Bend Park and Recreation District
OWNER: 799 SW Columbia Street
Bend, Oregon 97702
APPLICANT'S Garrett Chrostek
ATTORNEY Bryant, Lovlien &Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
APPELLANT: Bend Park and Recreation District
799 SW Columbia Street
Bend, Oregon 97702
PROPOSAL: The applicant requests approval of a Conditional Use Permit and
Site Plan Review to expand Big Sky / Luke Damon Sports Complex
in the Exclusive Farm Use Zone.
STAFF REVIEWER:
HEARINGS OFFICER:
HEARINGS OFFICER
DECISION ISSUED:
APPEAL FILED:
BOARD HEARING:
RECORD CLOSED:
Cynthia Smidt, Associate Planner
Dan R. Olsen
August 28, 2018
September 10, 2018
October 29, 2018
November 16, 2018 at 5:00 pm
Page 1
SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the appeal by
the Bend Park and Recreation District ("BPRD") of the August 28, 2018 Hearings
Officer's Decision (247 -18 -000105 -CU, 247 -18 -000164 -SP, "Hearings Officer's Decision").
The Board exercised its discretion to hear the appeal de novo.
The applicant/appellant challenges several conditions of approval imposed as part of
the August 28, 2018 Hearings Officer's Decision, which approved an expansion of Big
Sky/ Luke Damon Sports Complex ("Big Sky Park"). Specifically, the Hearings Officer's
Decision imposed the following relevant conditions of approval:
8. Neither bike park west nor the RIC track shall be used for organized
events, including races or competitions.
9. No trail closer than 250' from the northern boundary adjacent to
Eastmont Estates shall be used for organized events, including but not
limited to cross-country team practices or competitions and
cyclocross races. No direct trail access from the singletrack trails to
the perimeter trail is permitted within the area adjacent to Eastmont
Estates. The applicant may reconfigure the trails outlined in Sheet TD -
100 to accommodate this condition.
11. There shall be no use of permanent amplified sound systems. No
sound amplification shall be permitted for uses associated with bike
park west or the RIC Track. To the extent any other amplification is
permitted under prior approvals or County Code, it shall comply with
applicable DEQ and County standards and be used only as
reasonably necessary to start and manage events (e.g. no play by
play, promotional use). Nothing in this condition restricts or prohibits
use of amplification in case of emergency.
17. Prior to use of the RIC Track, the applicant shall erect a minimum 6'
high solid fence that extends at least 20' in each direction (NE/SW)
beyond the area in which such vehicles will operate to a maximum of
120, to provide a noise buffer for uses to the west of the park.
On November 28, 2018, at a regular business meeting, the Board deliberated on the
appeal. Following deliberations, the Board voted 2-0 (one Commissioner absent) to
modify the challenged conditions of approval as set forth in this decision.
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II. APPLICABLE STANDARDS AND CRITERIA:
Deschutes County Comprehensive Plan
Chapter 3, Rural Growth Management
Section 3.8. Rural Recreation
Oregon Revised Statutes
Chapter 195, Local Government Planning Coordination
Oregon Administrative Rules
Division 33, Agricultural Land
Division 34, State and Local Park Planning
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16. Exclusive Farm Use Zone
Chapter 18.80. Airport Safety Combining Zone
Chapter 18.128. Conditional Uses
Chapter 18.124. Site Plan Review
Chapter 18.116. Supplementary Provisions
Title 22, Deschutes County Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions of law set forth in the following parts of Section II of the Hearings
Officer Decision, which is attached as Exhibit A to this decision: Basic Findings,
subsections A (Location), B (Lot of Record), C (Zoning), D (Site Description), E
(Surrounding Land Uses); F (Soils), G (Land Use History); H (Proposal), I (Public Agency
Comments); J (Notice Requirements); K (Review Period); and L (Hearing). The following
additions are made to the basic findings in the Hearings Officer's Decision.
H. PROPOSAL: The original proposal included field lighting for the existing athletic
fields, which was denied by the hearings officer. The applicant disagreed with
those findings, but elected to withdraw that aspect of the proposal in lieu of
appealing.
J. NOTICE REQUIREMENTS: Notice of the public hearing on appeal before the
Board was provided to all parties and otherwise in accordance with Deschutes
County Code Title 22.
L. PROCEEDINGS ON APPEAL: The Hearings Officer issued the Hearings Officer's
Decision on August 28, 2018, which was mailed on the same day. The applicant
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filed a timely appeal of the Hearings Officer's Decision on September 10, 2018.
Through Order No. 2018-064, the Board granted de novo review after
considering the appeal at a September 17, 2018 work session. A public hearing
before the Board was held on October 29, 2018.
The Board heard testimony and allowed all parties to file post -hearing
submissions. The record closed on November 16, 2018 at 5:00 pm when BPRD
filed its final argument and agreed to waive any remaining time in the
extended -record period. The Board's review included the record below before
the Hearings Officer, as well as the evidence, testimony, and written
submissions in the proceedings on appeal before the Board.
The Board conducted deliberations at a regular Business Meeting on November
28, 2018.
M. PROCESSING CLOCK: The applicant agreed to extend the clock such that
December 31, 2018 would be the 150th day of processing the subject
application.
IV. FINDINGS
Except as otherwise provided herein, the Board adopts and incorporates by reference
the code interpretations, findings of fact, and conclusions contained in the Hearings
Officer's Decision in Section III. Findings, except for the findings relating to the DCC
Sections and issues identified below. To the extent there are conflicts between any of
the findings and conclusions in the Hearings Officer's Decision and the findings and
conclusions herein, the findings and conclusions herein shall control.
CHAPTER 18.124. SITE PLAN REVIEW
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 Board adopts the Hearings Officer's description of the issues and
concerns raised by opponents of the application. Similar arguments were raised in the
proceedings before the Board. The Board also finds the Hearings Officer's
interpretation of "relate harmoniously" to be consistent with the Board's interpretation
and historic implementation of this provision. However, the Board adopts new
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findings with respect to the Hearings Officer's evaluation of certain aspects of the
application under this standard.
Bike Park East
"Bike Park East" consists of a network of single-track trails. It will be used for biking,
running, and hiking purposes both in event settings and for unorganized recreational
uses. The preeminent events would be cyclocross races, which involve multiple bicycle
riders navigating a single-track course that contains obstacles requiring the rider to
carry the bicycle around or over the obstruction. Testimony and photos submitted by
opponents in the Eastmont Estates subdivision show that bicyclists can be visible and
heard from their adjoining properties. See, e.g. photos from Ronald and Gayle
Rupprecht. Opponents also raised concerns about trespass.
The Board concurs with the Hearings Officer that bicycle and hiking trails are common
features of parks, including rural parks. Furthermore, bicyclists, runners, and hikers do
not generate significant noise. Nothing indicates that trails for normal, causal
pedestrian and biking use is disharmonious with rural residences. The Board agrees
with the Hearings Officer that periodic sightings of bicyclists or runners, and noises
associated with such uses, does not create disharmony, particularly with the 100 -foot
setback proposed. However, trails for organized events with many runners or bikers,
perhaps noisy fans and dust creates potential for adverse impacts on adjacent
properties.
To address concerns related to event use of Bike Park East, the applicant proposed a
number of mitigation measures (collectively referred to herein as the "Mitigation
Measures") including the following:
• A minimum 100 -foot setback between any trails and the northern property line
• A minimum 500 -foot buffer for spectators, event headquarters, and amplified
sound devices
• Landscaping screening along the northern border of Bike Park East and the
multi -use trail
• Limits on the number of larger events
• Event management policies
• Substantial expansion of parking facilities
• Additional signage to prevent trespass
The Board is sensitive to the concerns of the neighbors, but finds that with the
Mitigation Measures, events can occur at Bike Park East in a manner that relates
harmoniously with the natural environment and existing development. Of particular
note, the proposed landscaping screens will obscure views of park users from adjacent
properties and will provide some degree of sound dampening and dust control. The
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proposed 500 -foot buffer distance from the northerly property line associated with
events at Bike Park East is consistent with the recommendations of BPRD's
supplemental noise analysis.' This analysis found that activities associated with events
(e.g. crowds and amplified noise) can occur at this distance without exceeding
applicable noise standards at adjacent residential properties. The Board also finds that
BPRD's event management policies and proposed number of events, discussed in
detail below, are appropriate. Finally, the Hearings Officer imposed a condition of
approval related to trespass signage. The applicant acknowledged that it would accept
such a condition.
To memorialize the Mitigation Measures, and the specific concerns related to Bike Park
East, the following conditions of approval are imposed:
No event headquarters, spectators at organized events, or amplified sound devices will be
permitted within 500 feet of the northern or western property lines.
The applicant shall install and maintain signs demarcating the park boundary along
Eastmont Estates and directing that private property not be entered. The signs shall be a
minimum of every 100' and shall comply with any applicable Code requirements.
All organized events, including, but not limited to, team practices and competitions shall end
by 9:30 p.m.
No more than 25 medium-sized (those with 50-300 attendees) event days (days on which the
event actually occurs and exclusive of set-up/take-down days) shall occur in total per year
between Bike Park West, Bike Park East, and the RIC track. No more than 8 large-sized
(those with more than 300 attendees) event days shall occur in total per year between Bike
Park West, Bike Park East, and the RIC track. BPRD shall not schedule a large event at Bike
Park West, Bike Park East, or the RIC track at the same time that a large event is scheduled
at other facilities within the park.
Bike Park West
"Bike Park West" consists of a starting tower, undulating bike trails with technical
features, pump track, trials course, kid's area, and associated features. It is not used
for side-by-side racing, like that which occurs at the BMX track, but would be used for
' The proposed 500 -foot setback of event headquarters exceeds the recommendation as the sound
analysis recommended that sound amplification devices not be used within 500 feet of a residence.
Properties to the north are subject to a 25 -foot setback. Thus, the closest a sound amplification device
would ever be is 525 feet and this would only be for the property due north from the sound
amplification device.
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organized trainings and competitions. Opponents contested the appearance of the
tower and use of this amenity for events (and associated noise, dust, and traffic).
As identified above, the Board finds nothing inherently disharmonious with bicycle
trails. However, the features associated with Bike Park West are somewhat unique and
require additional analysis. The starting tower, which provides users to gain sufficient
momentum to complete the course, is proposed to be no higher than 30 feet tall,
which is consistent with standards established by the County Code. It is located
approximately 250 feet from the nearest residence. There is no starting gate,
amplified sound, or lighting within the tower. The physical appearance is consistent
with architecture both in the park and in the region. The tower will be partially
obscured by existing vegetation of similar height. The closest bike trail heading from
the tower is at least 200 feet from Hamby Road. Because of the proposed buffers and
intervening vegetation, which offer visual screening and some degree of sound
dampening and dust control, the Board finds that Bike Park West is designed in a
manner that relates harmoniously with the natural environment and surrounding
development.
The Board is also sensitive to the concerns of the neighbors in the Quail Ridge
subdivision, but finds that with the Mitigation Measures events can occur at Bike Park
West in a manner that relates harmoniously with the natural environment and existing
development. Specifically, the applicant proposes that event headquarters, spectators,
and amplified sound devices be located at least 500 feet from the westerly property
line.' This buffer is consistent with the recommendations of the supplemental noise
analysis, which found that such activities can occur at this distance while meeting
applicable noise standards at adjacent residential properties. The Board also finds that
the applicant's proposals for the number of events and BPRD's event management
policies, discussed in detail below, are appropriate.
To memorialize the Mitigation Measures, and the specific concerns related to Bike Park
West, the following conditions of approval are imposed:
No event headquarters, spectators at organized events, or amplified sound devices will be
permitted within 500 feet of the northern or western property lines.
All organized events, including, but not limited to, team practices and competitions shall end
by 9:30 p.m.
2 The 500 -foot setback to event headquarters exceeds the recommendations of the sound study
because this buffer is measured from the western property line. There is intervening property, Hamby
Road right-of-way, and 25 -foot setback for structures within Quail Ridge such that a buffer of
approximately 650 feet is effectively established.
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No more than 25 medium-sized (those with 50-300 attendees) event days (days on which the
event actually occurs and exclusive of set-up/take-down days) shall occur in total per year
between Bike Park West, Bike Park East, and the RIC Track. No more than 8 large-sized
(those with more than 300 attendees) event days shall occur in total per year between Bike
Park West, Bike Park East, and the RIC Track. BPRD shall not schedule a large event at Bike
Park West, Bike Park East, or the RIC Track at the some time that a large event is scheduled
at other facilities within the park.
R/C Track
The "R/C Track" is a course designed for use of off-road remote-controlled ("R/C")
vehicles including side-by-side racing of such vehicles. The primary allegation from the
opponents is that this use will create noise impacts. On appeal, BPRD provided a
supplemental noise analysis that revealed electric R/C vehicles make very little noise,
even if many R/C vehicles are operated simultaneously. The applicant's sound
engineer further concluded that the fencing required as a condition of approval in the
Hearings Officer's Decision would not provide any benefit in terms of sound reduction
if use of the R/C Track were limited to non -combustion engines without any form of on-
board sound amplification. No conflicting noise analysis or other substantial evidence
was presented regarding electric R/C vehicles. The Board accepts the findings of
BPRD's supplemental noise analysis including findings regarding the fencing required
as Condition of Approval #17 in the Hearings Officer's Decision. Accordingly, the Board
will not require such fencing, but will impose a condition related to the types of
vehicles permitted on the R/C Track.
The Board further finds that, with the Mitigation Measures, events can occur on the R/C
Track in a manner that relates harmoniously with the natural environment and existing
development. Specifically, the applicant proposed that event headquarters, spectators,
and amplified sound devices must be at least 500 feet from the westerly property line.
This distance is consistent with the recommendations of the supplemental noise
analysis, which found that such activities can occur at this distance without not
exceeding applicable noise standards at adjacent residential properties.3 The Board
also finds that larger events must be limited in number. Regulations of events at the
new amenities within Big Sky Park are discussed in detail below.
To memorialize the Mitigation Measures, and the specific concerns related to the R/C
Track, the following conditions of approval are imposed:
No event headquarters, spectators at organized events, or amplified sound devices will be
permitted within 500 feet of the northern or western property lines.
3 See footnote 2 above about the effective buffer created by intervening property, the Hamby Road
right-of-way, and setbacks within Quail Ridge, which is also applicable to the R/C track.
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All organized events, including, but not limited to, team practices and competitions shall end
by 9:30 p.m.
No more than 25 medium-sized (those with 50-300 attendees) event days (days on which the
event actually occurs and exclusive of set-up/take-down days) shall occur in total per year
between Bike Park West, Bike Park East, and the RIC Track. No more than 8 large-sized
(those with more than 300 attendees) event days shall occur in total per year between Bike
Park West, Bike Park East, and the RIC Track. BPRD shall not schedule a large event at Bike
Park West, Bike Park East, or the RIC Track at the some time that a large event is scheduled
at other facilities within the park.
No vehicles with combustion engines or on -board audio (speakers) shall be operated on the
RIC Track.
Lighting
The applicant withdrew the proposed field lighting from its proposal. As identified
above, no lighting is proposed within the starting tower. The only proposed lighting is
parking lot lighting and walkway lighting necessary for safe use of these facilities. The
applicant has proposed that all such lighting will be shielded and otherwise compliant
with County Code and Dark Skies principals. Moreover, the applicant is proposing to
use the minimum number of fixtures necessary to achieve safe usage of the facilities to
avoid excessive lighting and will turn most lighting off when the park is closed. The
Board also notes that all of the proposed parking areas are located at least 500 feet
from any residential property line with intervening amenities and natural landscaping.
To ensure the proposed lighting relates harmoniously with the natural environment
and existing development, the following condition of approval is imposed:
All lighting on the subject property shall be required to comply with Chapter 15.10 of the
Deschutes County Code, the Outdoor Lighting Control Ordinance. All exterior lights shall be
sited and shielded so that no direct light projects off-site. All lighting shall be designed to
minimize generation of ambient light and shall be shielded or otherwise designed and
installed so that light does not trespass onto adjacent properties and shall be "dark sky"
compliant. Bike Park West, including the start tower, the RIC Track area, and Bike Park East
shall not include lighting except to the extent required, if any, to comply with adopted
building, fire, life or safety codes.
Dust
Concerns were raised about dust emanating from various proposed uses. The
applicant states that it will use clay or other materials for dust suppression, similar to
what is presently employed within the BMX facility. There is little if anything in the
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record about dust problems from the BMX facility. The Board finds that these
construction materials along with the proposed buffers are sufficient to mitigate any
dust impacts.
Amplified Noise
Amplified noise was a primary point of contention of the opponents. The opponents cite
past practices at the BMX facility, which have since been discontinued, were particularly
disruptive. The applicant provided two sound analyses prepared by a licensed engineer
as well as follow up testimony from the sound engineer that responds to arguments
made by the opponents concerning the submitted sound analyses.
The submitted sound analyses evaluated, amongst other inquiries, the noise levels
generated by a post -mounted PA speaker operating at full volume together with an air -
articulated starting -gate drop in continuous operation and traffic from Hamby Road.
The PA system was operated within the existing BMX facility and measured at a
distance of approximately 700 feet (the most proximate property line). Under these
testing conditions, noise did not exceed DEQ daytime residential standards.' A
supplemental sound analysis also evaluated the cumulative effects of amplified sound
and crowd noises (with an assumed crowd of 500 people) and found DEQ standards
are still maintained.
In follow up testimony, the sound engineer indicated that the testing conditions
represented a "worst-case scenario." The volume of the tested public address ("PA")
system, according to the sound engineer, would be uncomfortable for persons in
proximity to the PA system and none of the proposed amenities feature an air -
articulated starting -gate drop.5 The supplemental analysis also does not account for
the vegetation and terrain that would break the line of sight, and thus help reduce
sound, at other locations outside of the 500 -foot buffer where sound amplification
devices would be permitted. Given the terrain, existing vegetation, crowd sizes, and
likely amplified noise levels, the sound engineer recommended that amplified noise
devices not be operated within 500 feet of a residence.
Opponents challenged the methodology of the studies and particularly the testing
locations and noise assumptions. These arguments were addressed by BPRD's sound
engineer in his follow-up testimony. The opponents did not provide any competing
analysis or testimony from a licensed engineer or other noise expert. Given that
testimony in support of the application came from a licensed engineer, who addressed
the concerns raised by the opponents, the Board must defer to the expert.
4 The County utilizes DEQ noise standards in its County Code (see DCC Chapter 8.08).
5 There is also no intervening roadway for Eastmont Estates.
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The Board recognizes that noise levels are highly circumstance dependent and
subjective. What is obnoxious or too loud for one person is pleasant or too quiet for
another. This makes noise difficult to evaluate and regulate, particularly in the context
of determining what constitutes a "harmonious relationship." However, the Board
finds the reports and testimony from the applicant's sound engineer persuasive and
concludes that amplified sound can occur within Big Sky Park in a manner that relates
harmoniously to the natural environment and existing development. The Board finds
particular comfort in the fact that the applicant is proposing to limit the number of
events, which amplified sound is permitted at the new amenities, and is proposing a
500 -foot buffer that effectively exceeds the recommendation of BPRD's sound
engineer, as outlined in the notes above. While the Board finds the 500 -foot buffer a
practical solution to deal with noise, as distance is easier to measure than noise, the
Board nonetheless will require amplified sound to comply with applicable DEQ and
County noise regulations. To ensure amplified sound is used in a manner that
maintains a harmonious relationship with the natural environment and existing
development, the Board imposes the following conditions of approval:
No event headquarters, spectators at organized events, or amplified sound devices will be
permitted within 500 feet of the northern or western property lines.
No amplified sound will be permitted at small events (those with less than 50 attendees).
All amplified sound shall comply with applicable residential DEQ and County standards as
measured at the property lines of adjacent residential properties.
Dogs
The Board concurs with the Hearings Officer's findings regarding dogs. No party
appears to contest such findings.
Transportation Access. and Parking
The Board concurs with the Hearings Officer's findings regarding transportation,
access, and parking. The arguments raised by the opponents during the proceedings
on appeal appear to mirror the arguments raised before the Hearings Officer. To the
extent any of the arguments are different, the Board finds that testimony from BPRD
and its transportation engineer, which was ultimately accepted by County staff and
deemed acceptable by the Hearings Officer, to be responsive to all issues raised
regarding transportation, access, and parking.
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Exterior Multi -Use Path
Similar to findings above, the Board finds that multi -use paths used by pedestrians and
bicyclists do not present any inherent disharmony in a rural setting. The multi -use
path is not proposed to be used for events and the applicant intends to close certain
segments of the path during events to comply with the 500 -foot restrictions discussed
above. The Hearings Officer's Decision prohibited any connections to Bike Park East
and the multi -use path. The Board does not find any basis to prohibit connections
between Bike Park East and the multi -use path.
Other Park Amenities
None of the other proposed improvements generated any significant comments or
concerns and all seem relatively minor, normal, and customary accouterments to the
previously approved uses or those approved by this decision.
Visual Impacts and Natural Features
Although some may find the proposed structures and amenities to be unsightly, the
Board finds that none of the proposed structures and amenities presents any
significant visual impacts. In any event, the existing vegetation and proposed
landscaping screens largely obscure views of the proposed structures and amenities.
The proposed amenities do not impair views from adjoining properties and do not
require significant alterations to any topographical features.
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: In addition to the staff findings reported in the Hearings Officer's Decision,
the Board finds that the proposed landscape screening and the no trespass signage
discussed above are sufficient to ensure the proposal provides a safe environment,
opportunities for privacy, and a transition from public to private spaces.
2. Issue Specific Findings
Beyond the findings specific to applicable approval criteria, the Board makes additional
findings with respect to certain issues raised during the proceedings. These findings
are intended to supplement the Hearings Officer's Decision. However, to the extent
inconsistent with the Hearings Officer's Decision, these findings shall supersede
inconsistent findings in the Hearings Officer's Decision.
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Northern Setback
Opponents renewed arguments on appeal that a portion of Bike Park East is within a
buffer area that they were guaranteed would not be developed. The arguments raised
concerning alleged mandatory setbacks on appeal do not provide any basis to
overturn the Hearings Officer's finding that no 250 -foot buffer requirement exists. The
Board concurs with the Hearings Officer on this issue.
Field Lighting
As noted above, the applicant withdrew field lighting from the proposal. References in
the Hearings Officer's Decision related to field lighting are therefore of no effect.
Event Management
The Hearings Officer's Decision made several references to "events" and "organized
activities" and incorporated such terms into restrictions placed on the proposed
amenities. The applicant appealed these findings and corresponding conditions of
approval indicating that they were overly restrictive. Staff further noted that these
terms present enforcement issues, as it would be difficult to determine which activities
are intended to be regulated.
On appeal, the applicant presented additional evidence concerning BPRD's event
management policies and its specific proposals for event management within Big Sky
Park. Specifically, BPRD proposed a tiered event structure based on the number of
attendees. Small events would be those with less than 50 attendees (including all
spectators, support crew, etc.). According to the applicant, these small events are
typical to that that already occurs within Big Sky Park, such as soccer practices and
softball games, and do not generate significant impacts. The applicant proposes that
there be no such restrictions on these types of events or organized activities except
that they would not be permitted to use amplified sound. Medium events, those with
50 to 300 attendees, would be subject to permitting through BPRD and would be
limited to 25 event days (those days on which the event actually occurs excluding set-
up/take-down days) per year at the new amenities. Testimony during the hearing
suggested this would be the more typical event size associated with uses at the new
amenities. Large events, those with more than 300 persons, would also be subject to
permitting through BPRD and would be limited to 8 event days per year at the new
amenities. To prevent overflow, the applicant proposed the additional condition that
no more than one large event occur at any given time regardless of which amenities in
the park are hosting the large event (i.e. a large event on the soccer fields would
preclude scheduling a large event at the new amenities).
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There was little opposition testimony addressing BPRD's proposed event management
structure. Most opponents simply wanted to maintain the prohibitions and restrictions
imposed by the Hearings Officer. The only testimony specifically directed at the event
management structure suggested that events would only take place during seasons
with favorable weather conditions. As the Board understands the argument, this
would lead to both overcapacity from event overlap and near constant events during
favorable weather conditions.
The Board finds that it would be unreasonable to preclude events from the new
amenities within Big Sky Park. Big Sky Park was approved as a "sports complex" and it
is implicit that events would occur at the park. As discussed above, the Board finds
that events can take place at the new amenities in a manner that relates harmoniously
with the natural environment and adjacent development. The Board also finds that
BPRD is a public agency with significant experience managing events. It has a
permitting system in place and reasonable policies to ensure appropriate scheduling
and management of events.
The number of events proposed by the applicant is reasonable. Mathematically, the 33
medium and large event days per year precludes a constant scheduling of events at
the new amenities. As to seasonality, the Board notes that testimony suggested
inclement weather is sometimes preferred for events likely to occur at the new
amenities and the foremost cyclocross event in the area that presently takes place at
Deschutes Brewery is held in late October. As to event overlap concerns raised by the
opponents, the Board finds that BPRD's existing policies/permitting processes (which
require a parking plan and some level of on-site supervision) and the proposed
condition of no more than one event at any given time is sufficient to avoid
overcapacity.
However, the Board desires that the District be transparent about events occurring in
the park. Specifically, events should be advertised in advance in a readily accessible
location such as BPRD's website. This would provide neighbors with both the
opportunity to avoid events through advanced planning and the ability to monitor
BPRD's compliance with restrictions on the number of events.
Accordingly, to mitigate the impacts of events, the Board imposes the following
conditions of approval:
No event headquarters, spectators at organized events, or amplified sound devices will be
permitted within 500 feet of the northern or western property lines.
All organized events, including, but not limited to, team practices and competitions shall end
by 9:30 p.m.
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No more than 25 medium-sized (those with 50-300 attendees) event days (days on which the
event actually occurs and exclusive of set-up/take-down days) shall occur in total per year
between Bike Park West, Bike Park East, and the RIC Track. No more than 8 large-sized
(those with more than 300 attendees) event days shall occur in total per year between Bike
Park West, Bike Park East, and the RIC Track. BPRD shall not schedule a large event at Bike
Park West, Bike Park East, or the RIC Track at the some time that a large event is scheduled
at other facilities within the park.
Medium and large events shall be advertised in advance in a readily accessible location such
as BPRD's website.
All Other Issues
The Board finds that all other issues raised by the opponents in these appeal
proceedings were either sufficiently addressed by the Hearings Officer's Decision, did
not address the applicable approval criteria, or were insufficiently developed for the
Board to evaluate the concern.
V. DECISION
Based on the foregoing findings of fact and conclusions of law set out above, the Board
hereby APPROVES the applicant's proposed conditional use permit and site plan
review for an expansion of Big Sky Park, as conditioned below
VI. CONDITIONS OF APPROVAL
1. Approval is based upon the submitted application materials, as modified by the
Board above.
2. No building or structure, including the starting tower, shall be erected or
enlarged to exceed 30 feet in height.
3. All lighting on the subject property shall be required to comply with Chapter
15.10 of the Deschutes County Code, the Outdoor Lighting Control Ordinance.
All exterior lights shall be sited and shielded so that no direct light projects off-
site. All lighting shall be designed to minimize generation of ambient light and
shall be shielded or otherwise designed and installed so that light does not
trespass onto adjacent properties and shall be "dark sky" compliant. Bike Park
West, including the start tower, the R/C Track area, and Bike Park East shall not
include lighting except to the extent required, if any, to comply with adopted
building, fire, life or safety codes.
247 -18 -000105 -CU, 247 -18 -000164 -SP, 247-18-000745-A
Document No. 2018-761 Page 15
4. The applicant shall obtain driveway access permits for any new or existing
unpermitted driveway accesses to Neff Road or Hamby Road pursuant to DCC
12.28.050, 17.48.210(A) and 18.124.060(K).
5. The existing access to Hamby Road, located approximately 70 feet north of the
intersection with Neff Road, and the existing westerly access to Neff Road,
located approximately 150 feet east of the intersection shall be severed and
removed from the public right of way.
6. The existing access to Neff Road located approximately 375 feet east of the
intersection with Hamby Road may be used as a service access road only.
Applicant will post signs at the access indicating that the access is service only
and not a public access. Further, applicant shall ensure that park visitor traffic
on interior roads is restricted from using the access for egress by means of a
gate, landscaping, or other physical barriers.
7. Prior to commencing construction, the applicant shall dedicate to the public
additional right of way along the subject property frontages on Neff and Hamby
Roads to provide the minimum standard arterial right-of-way width of 40 feet
from centerline.
8. The applicant shall install and maintain signs demarcating the park north
boundary along Eastmont Estates and directing that private property not be
entered. The signs shall be a minimum of every 100 feet and shall comply with
any applicable Code requirements.
9. No event headquarters, spectators at organized events, or amplified sound devices
will be permitted within 500 feet of the northern or western property lines.
10. No more than 25 medium-sized (those with 50-300 attendees) event days (days
on which the event actually occurs and exclusive of set-up/take-down days)
shall occur in total per year between Bike Park West, Bike Park East, and the R/C
Track. No more than 8 large-sized (those with more than 300 attendees) event
days shall occur in total per year between Bike Park West, Bike Park East, and
the R/C Track. BPRD shall not schedule a large event at Bike Park West, Bike
Park East, or the R/C Track at the same time that a large event is scheduled at
other facilities within the park.
11. Medium and large events shall be advertised in advance in a readily accessible
location such as BPRD's website.
12. All organized events, including, but not limited to, team practices and
competitions shall end by 9:30 p.m.
247 -18 -000105 -CU, 247 -18 -000164 -SP, 247-18-000745-A
Document No. 2018-761 Page 16
13. No amplified sound shall be used at small events (those with less than 50
attendees).
14. All amplified sound shall comply with applicable residential DEQ and County
standards.
15. All required landscaping shall be maintained continuously and kept alive and
attractive.
16. At least the minimum number of ADA parking spaces shall be provided based
on review by the County Building Safety Division (estimated at 10).
17. All walkways that cross driveways and parking areas shall be clearly identifiable
using striping or similar method.
18. Required parking spaces shall not be used for storage of vehicles or materials of
for parking trucks used in conducting park operations.
19. No vehicles with combustion engines or on -board audio (speakers) shall be
operated on the R/C Track.
Dated this _ day of December, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO
THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS
DECISION IS FINAL.
EXHIBITS
A. Hearings Officer's decision dated August 28, 2018
247 -18 -000105 -CU, 247 -18 -000164 -SP, 247-18-000745-A
Document No. 2018-761 Page 17
E S(,
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of December 12, 2018
DATE: December 5, 2018
FROM: Jacob Ripper, Community Development, 541-385-1759
TITLE OF AGENDA ITEM:
DELIBERATIONS: High Desert Nectar LLC Marijuana Production, 62266 Byram Road
BACKGROUND AND POLICY IMPLICATIONS:
The Deschutes Board of County Commissioners ("Board") is tasked with determining if the subject
proposal meets the requirements in the applicable sections of the Deschutes County Code. The
Board held a public hearing on October 29, 2018 to consider the appeal, filed by appellants Sean
and Lyssa Bell, represented by Attorney Liz Dickson (together "Appellants") in response to an
Administrative Determination approving a marijuana production facility proposed by High Desert
Nectar, LLC ("Applicant").
This attached memo and decision matrix is designed to assist the Board in their deliberations. It
focuses on the contested aspects of the application that require Board determinations or
interpretations.
FISCAL IMPLICATIONS: None
ATTENDANCE: Jacob Ripper, Senior Planner
F,AMA11110
COMMUNITY DEVELOPMENT
STAFF MEMORANDUM
DATE: December 5, 2018
TO: Deschutes County Board of Commissioners
FROM: Jacob Ripper, Senior Planner
RE: Deliberations following a public hearing of an appeal of a marijuana
production facility. File no. 247-18-000792-A (appeal of Administrative
Determination file no. 247 -18 -000051 -AD).
BACKGROUND INFORMATION
APPLICANT: High Desert Nectar LLC, c/o Danielle Caruso
OWNER: Richard and Deborah Caruso
APPELLANT: Sean and Lyssa Bell
APPELLANT'S ATTORNEY: Elizabeth Dickson, Dickson Hatfield LLP
LOCATION: The subject property has a situs address of 62266 Byram Rd., Bend. It
is identified on Deschutes County Assessor's Map No. 17-13-32, as tax
lot 902.
HEARING DATE: October 29, 2018
RECORD PERIOD: The record was closed at 5:00 pm on November 27, 2018.
REVIEW PERIOD: The 150 -day period for issuance of a final local decision ends January
11, 2018.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q, (541) 388-6575 (V3a cdd@deschutes.org @ www.deschutes.org/cd
I. Purpose
The Deschutes Board of County Commissioners ("Board") is tasked with determining if the subject
proposal meets the requirements in the applicable sections of the Deschutes County Code. The
Board held a public hearing to consider the appeal, filed by appellants Sean and Lyssa Bell,
represented by Attorney Liz Dickson (together "Appellants") in response to an Administrative
Determination approving a marijuana production facility proposed by High Desert Nectar, LLC
("Applicant").
This memo and the attached matrix are designed to assist the Board in their deliberations. Itfocuses
on the contested aspects of the application that require Board determinations or interpretations.
II. Record
The record, in its entirety, was presented to the Board as attachments to the September 18, 2018
Staff Memorandum regarding the work session held on September 26, 2018, and the October 15,
2018 Staff Memorandum regardingthe appeal hearing held on October 29, 2018.Onlythose record
items that have not been presented to the Board previously are attached to this memo. A binder
containing copies of all materials in the record has also been prepared for the Board. It is located in
the Board offices so that it is accessible at any time and the Board may reference it at the public
hearing.
III. Opposition
The appellant and 10 opponents at the hearing stated several reasons for their opposition which
were described in the Notice of Appeal, in oral and written testimony, and in the open record period
submissions. The decision matrix below is to assist the Board to determine if the Administrative
Determination should be affirmed, affirmed with modified findings or conditions, or denied. Staff
has identified seven key issues that the appellant and other opponents have raised regarding the
proposal. Other issues raised may be unrelated to approval criteria and are listed under item eight
(8).
IV. Discussion & Summaries
The following is a brief review of the points of objection and does not fully describe or explore all
aspects of the proposal or of objections. The complete arguments and rebuttals were presented at
the hearing and/or in the attached record materials submitted during the open record period.
Can the odor control requirements be met?
The topics of a 10' x 10' overhead door opening and the technology used for odor control were
brought up in the hearing and in open record period submittals. The applicant has submitted a
revised mechanical engineers report (41h version, Attachment 18), which verifies that the proposed
activated carbon filtration odor control systems will be effective to control odor. Appendix D of the
247-18-000792-A (247 -18 -000051 -AD) Page 2 of 10
report includes an overview of the technology and how it is effective to control cannabis (and other)
odors.
The report includes a section that requires replacement of the filter on a time schedule and if any
odor is noticeable before the scheduled filter change. In that case more frequent filter changes will
be required. The appellant argues that since the criterion requires that at all times the odor control
system must prevent unreasonable interference with neighbors' use and enjoyment of their
property that the proposal fails to meet this requirement. The appellant also argues that since the
lifespan of filters is unknown and odor is evidence of a breakdown (as identified in the report), that
the applicant has planned this result as part of the odor control system. The applicant clarified and
the report confirms that each room within the building is individually controlled for odor, with
another odor control filter in the large space outside of the individually odor -controlled growing
rooms. There will be no exhaust to the outside. The applicant also argues that the report identifies
that the manufacturer rates the lifespan of the filters at 12-18 months and they will comply with the
mechanical engineer's requirement of replacing the filters every 6 months or sooner if needed. The
applicant argues that this assertive filter change cycle demonstrates they have no intention or desire
to let the filters breakdown before changing them.
The Administrative Determination included a standard condition of approval to ensure ongoing
compliance. If the Board finds that the odor criteria are met, staff suggests adding the following
condition to further ensure ongoing compliance:
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. The installation, maintenance, and use of the odor control system
shall be as described in the November 6, 2018 Odor and Noise Report.
B. Can the noise control requirements be met?
The topics of sound calculations and sound barrier walls were brought up in the hearing and in
open record period submittals. The applicant has submitted a revised mechanical engineers report
(4th version, Attachment 18), which verifies that the proposed mechanical equipment will not
exceed 30 dB(A) measured at property lines. Figures 3, 4, and 5 in the report and Appendix A show
the locations of the four AC units, identified on Figures 3 and 5 by "+". The report's Figures 3 and 5
are sound models using software to simulate noise levels. Appendix B describes the the make and
model of the split system air conditioners to be used. Exhibit G is ISO 9613-2, which is the
international standard for calculating outdoor sound propagation for which the mechanical
engineer's sound modeling software (DBmap) uses.
The appellant asserts that the report only analyzes one AC unit instead of considering the
cumulative effect of all four together. The applicant points out that this is incorrect and that all four
AC units were included in the noise analysis and noise maps. The appellant states that the report
relies on 6' x 6' walls that are not identified on the plans and therefore cannot be relied on. Staff
identifies that the two wall locations are clearly identified in Figure 4 of the report and labeled
"Proposed Sound Barrier Location" in red text. The applicant points out that the report and Figure
247-18-000792-A (247 -18 -000051 -AD) Page 3 of 10
3 demonstrate that sound levels are met without the walls, with a maximum sound level of 29.4
dB(A) along the southern property line. To ensure 30 dB(A) is not exceeded by a possible margin of
error, the report recommends the installation of wood, metal, or CMU 6'x 6' walls with no visible
gaps to reduce the maximum sound level to 27 dB(A).
The appellant states that the applicant provided, "a Supplemental Report that is 87 pages in length.
On examination it is nothing more than a college seniors' project, focusing on the Wyoming Clean
Water Plant and methods to get odor and noise to 'tolerable levels"'. In response, the applicant
states, 'The Appellant's mention of an 87 -page supplemental report that's actually a senior paper is
confusing: Colbreit includes a 3 -page excerpt sourced from an 84 -page college essay [report pages
20-24] which is used as a basic description of how carbon filters adsorb odors, and that excess
moisture degrades performance. Colbreit never claims that it has any relation to Deschutes County
code, nor do they think it needs to". Staff clarifies that the engineer's original writing within the
report itself appears on pages 1-12 and pages 13-87 are appendixes provided for reference and
background information.
The Administrative Determination included a condition of approval requiring the sound walls and
to ensure ongoing compliance. If the Board finds that the noise criteria are met, staff suggests
including the following condition to ensure ongoing compliance:
Noise: Prior to initiation of the use, the applicant shall install two 6 -foot tall, 6 -foot long sound
barriers constructed of wood, metal, or CMU with no visible gaps, and as described and located in
the November 6, 2018 mechanical engineer's report. At all times, 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.
3. Do monthly 4H meetings rise to the level of a Youth Activity Center?
The DCC requires a 1,000 foot setback from a Youth Activity Center (YAC), and the code does not
define what constitutes a YAC. In oral and written testimony, a variety of activities were offered for
examples of what different individuals thought to be a YAC, including homeschooling in a dwelling,
4H meetings within a home or accessory building, holiday parties, Boys and Girls Club, etc.
The applicant argues that the legislative history of this term was meant to include a type of facility
that would be primarily devoted to serving youth and would be subject to licensing or permitting,
such as a Boys and Girls Club. These types of facilities would necessarily be required to obtain land
use permits, building permits, and comply with associated requirements such as licensing by the
state, ADA compliance, etc. Staff notes that the Administrative Determination included findings that
no such property with this type of facility exists within 1,000 of the subject property.
The applicant states that the fully enclosed and secured marijuana production facility will ensure no
production, operations, or cannabis -related activities will be visible or accessible by any person
outside the building. The appellant argues that based on observations of code violations at other
marijuana grow sites, they disagree with the applicant's assertion that it will be essentially
247-18-000792-A (247 -18 -000051 -AD) Page 4 of 10
undetectable from the outside. Staffs opinion is that other production sites and whether an
operation is or is not recognizable as a marijuana production site, do not address approval criteria.
The applicant discussed separation distances required by ORS 475B in their open record submittals.
The appellant correctly identifies that those setback rules do not apply to marijuana production.
Testimony and written materials about the benefits and virtues of 4H were submitted, but also do
not relate to approval criteria.
The appellant has offered a definition for the Board:
"Youth Activity Center" - A structure where a particular adult -supervised organized youth
activity takes place, involving 6 or more non -related youths between the ages of 6-18, on a
regular[ly] scheduled basis of once or more per month, on average, annually.
The appellant goes on to state, "This proposed definition would likely encompass the 4-H meetings
in the Bell home". However, the appellant never definitively affirms that the 4-H activities at the
Bell's residence meet this proposed definition.
The applicant has offered that the YAC "test" should be that the primary purpose of the property is
to serve youth. They argue that a YAC should not be an activity that is subordinate or accessory to
a primary use, which in this case is a single-family dwelling.
It is staffs opinion that a YAC is likely something in between the applicant's and appellant's
interpretations. For example, a religious organization's primary purpose of the property is to hold
weekly services, but may be granted approval for an accessory use that is youth -focused such as an
afterschool program. Connecting a YAC to a documented permit or license would also allow all
parties to objectively and definitively identify and verify which uses are YACs in future marijuana
applications. It would also ensure that those uses are allowed and permitted on those properties.
An official adoption of a YAC definition would procedurally require a text amendment to the DCC
and cannot be done through the review of this application. Although a definition cannot be adopted
today, the Board's interpretation of what qualifies as a YAC in this application will provide guidance
for staff and the public for future marijuana production, processing, and retail applications. The
Board is not necessarily tasked with interpreting the complete scope of what is or is not a YAC, but
does at a minimum need to determine if the scope of the subject 4H group's monthly meetings rises
to the level of a Youth Activity Center. Staff requests the Board to provide guidance and
interpretations.
4. Is the electrical utility verification requirement met?
The appellant argues that GEC's February 12, 2018 email response to the Notice of Application
invalidates the earlier October 3, 2017 "will -serve" letter. The October "will -serve" letter details the
location, use, and service load of the proposal and states that CEC is willing and able to serve the
property. It is signed by Robert E. Fowler, Engineering Service Representative. The February email
response to the mailed Notice of Application from Parneli Perkins instructs the applicant to contact
Mr. Fowler to provide load and demand requirements so that he may determine if capacity is
247-18-000792-A (247 -18 -000051 -AD) Page 5 of 10
available. Mr. Perkins receives all of the County's Notices of Application and typically responds to
those notices with these general statements that are not site-specific.
The applicant submitted an updated "will -serve" letter from Mr. Fowler dated November 6, 2018
(Attachment 19). It describes the property address, the use as a cannabis grow facility, the load, and
states CEC is willing and able to serve the location. The appellant argues that since the statement in
the letter is "able to serve this location" rather than "able to serve this operation" that the application
should be denied. The applicant argues that the "location" statement necessarily includes
"operation". It is staff's opinion that this criterion is met because the letter explicitly identifies the
operation as a cannabis grow facility requiring 200 amp service at the subject location. This is
consistent with other marijuana production applications which the Board has reviewed since their
decision in Rubio', where the Board denied the application because the CEC letter only identified
the location without identifying the use or service load.
5. Is the water source requirement met?
The question of the water source was brought up in the hearing and in open record period
submittals. Water delivery is the identified water source and the applicant clarified they will not use
COID irrigation water as part of this use. An opponent brought up COID's comments about
structures being prohibited on top of water rights. Staff notes that this is not an item which is under
the County's review. Transferring water rights to another part of the property is a process completed
between the property owner and the irrigation district.
As described in the Administrative Determination, the applicant will have water delivered to the
property by Bend Water Hauling LLC and stored on site in a 2,500 gallon storage tank. The applicant
submitted a letter from Bend Water Hauling stating they are willing and able to deliver up to 5,000
gallons of water per month.
6. Is the proposal prohibited by the prohibition of new dwellings used in conjunction with a
marijuana crop?
The appellant initially argued in their appeal that because the current property owners finalized the
purchase of the subject property, a nonfarm dwelling was approved, and the applicant applied for
marijuana production within an approximate six month time period, that the approved nonfarm
dwelling is a "new dwelling used in conjunction with a marijuana crop" and is prohibited by DCC
18.116.330(B)(20), which mirrors ORS 475B.526(2)(a). The appellant has not advanced this theory in
open record period submittals.
Staff explained the "new dwelling" term in the DCC and ORS in the Administrative Determination.
Staff referenced the DLCD's Guide to Recreational Marijuana in EFU Zones and the Board's
interpretation in the Rubio appeal decision, both of which state a nonfarm dwelling is not a
prohibited dwelling under DCC 18.116.330(B)(2) and ORS 475B.5262. In Rubio, the Board concluded:
1 BOCC Document No. 2017-294, Planning Division File 247-17-000036-A
2 At the time of the DLCD publication, these rules were found in House Bill 3400. Since then, they have been incorporated
into the ORS.
247-18-000792-A (247 -18 -000051 -AD) Page 6 of 10
The prohibition in DCC 18.116.330(20)(a)(i) of a new dwelling in conjunction with a marijuana
crop does not prohibit the previously approved non-farm dwelling for this site on or about
May 12, 20143 in file 247 -15 -000103 -CU.
The appellant argued for an interpretation of the prohibition of a "new dwelling used in conjunction
with a marijuana crop" based on the approval of the dwelling as a nonfarm dwelling. However, staff
understands that this provision was intended to preclude marijuana sales income from being used
to qualify for "a dwelling customarily provided in conjunction with farm use", or what is commonly
referred to as a "farm dwelling'. In order to qualify for a farm dwelling or accessory farm dwelling
for farm labor, a farmer must have a minimum gross income of $40,000 per year for several years
prior to applying for the farm dwelling. Thus, this limit on new farm dwellings in conjunction with a
marijuana crop (a farm use) prevents this high-value crop from being used to easily qualify for a
new farm dwelling.
Staff is also unclear if the prohibition in the code and ORS allows denial of a new marijuana
production application based on a previous dwelling approval. The prohibition is on a new dwelling
that is used in conjunction with marijuana, not a prohibition on a new marijuana crop used in
conjunction with a dwelling. In either case, the applicant affirmed that although they wish to
establish both uses on the property, they are not interdependent.
7. Are Airport Safety Combining Zone requirement met?
The appellant argues that the use is incompatible with the Bend Municipal Airport. The
Administrative Determination and the October 15, 2018 Staff Memorandum discuss this in more
detail and describe how the proposal is in compliance with the AS Combining Zone criteria. The
appellant has submitted a letter from the airport for a different, unidentified land use application
that requires certain FAA notice forms be submitted. The appellant speculates that the FAA may not
sign off on a marijuana use. Staff clarifies that the AS Combining Zone, which is in compliance with
and mirrors FAA and ODA rules, does not require these notices to be filed for this proposal. These
forms do not allow the FAA to disallow uses or somehow reverse a County decision. Instead, they
primarily reinforce height limits and glare reduction requirements that are already enforced by the
DCC.
Originally the appellant was concerned about glare from lighting interfering with aircraft in the
Approach Surface. The runway is over 9,700 feet (1.83 miles) from the subject property. The
property is not directly below the Approach Surface, but is approximately 130 feet to the east of it.
Staff found the prosed use was not reasonably expected to cause interference with the airport and
pilots. Regardless of applicability of the AS Combining Zone to outdoor lighting, the approval was
conditioned based on marijuana production criteria found in DCC 18.116(B)(9) and outdoor lighting
control criteria found in DCC 15.10, which can ensure compliance with the AS Combining Zone. The
condition of approval #6 states (pertinent subsections underlined):
3 The correct date is May 12, 2015. File 247 -15 -000103 -CU contained a typographical error which was inadvertently
propagated to this finding.
247-18-000792-A (247 -18 -000051 -AD) Page 7 of 10
Lighting: The following lighting standards shall be met at all times:
a. Inside building lighting used for marijuana production shall not be visible outside the
building from 7:00 p.m. to 7:00 a.m. on the following day;
b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by
the lamp or a diffusing element or indirectly by reflection or refraction, is projected
below the horizontal plane through the lowest light-emitting part: and
c. The light cast by exterior light fixtures other than marijuana growing lights shall comply
with DCC 15.10, Outdoor Lighting Control.
If there is outdoor lighting that will not already be shielded as required by condition of approval 6
parts b and c, staff suggests the following amendment to the condition of approval:
d. No outdoor lighting shall project into the existing airport approach surface. Lighting shall
incorporate shielding in the design to reflect light away from airport approach surfaces.
8. Topics that did not address approval criteria.
• Is the proposal compatible with surrounding uses?
Compatibility is not an approval criterion for marijuana production in the EFU Zone.
Marijuana processing would require Site Plan Review which includes approval criteria from
DCC 18.124 about a use relating harmoniously to the natural environment and existing
development. Marijuana production in the MUA-10 Zone previously required a Conditional
Use Permit (it is no longer allowed in MUA-10) which includes approval criteria from DCC
18.128 about compatibility with existing and projected uses.
• County Sheriffs Concerns
The appellant submitted a letter from the Deschutes County Sheriff that was from a different
land use application. In that letter, the Sheriffs concerns are directed generally at marijuana
grows and describes an increase in service calls related to marijuana grow sites. It was not
specified if these were legal or illegal/unpermitted grow sites. The Sheriffs letter did not
address approval criteria.
• Comments from Deputy State Fire Marshal
The comments from the Deputy State Fire Marshal reference requirements from the 2014
Oregon Fire Code. The County does not have the ability to review or enforce the fire code in
this land use application. However, the subject proposal will have to comply with the fire
code's requirements, but it is not enforceable by this land use permit.
Neighborhood Character
Comments were received regarding the character of the neighborhood and how the
proposal is not desirable by current residents. Topics of feelings of safety, locations of bus
247-18-000792-A (247 -18 -000051 -AD) Page 8 of 10
stops, the presence of families, guests not wanting to come to parties at nearby houses, etc.
were expressed and were certainly earnest, but were not directed at approval criteria.
• Morality of marijuana use/if it should be legal
The voters of Oregon legalized marijuana for recreational use and Deschutes County opted
in. This category of comments did not address approval criteria.
• Black market sales and overproduction statewide
The applicant will be required to be licensed by the OLCC. Alleged black market and
speculative out of state sales statements were made at the hearing, but were not based on
any approval criteria or evidence.
• Other marijuana grow sites
Multiple references and comparisons were made to other marijuana grow sites, whether
legal and in compliance or otherwise. The status of other land use permits or code violations
on other properties has no merit in approval or denial of a land use application that is not
associated with those properties.
V. Conclusion & Next Steps
Staff respectfully requests that the Board specify if they intend to approve or deny the application
and to provide any additional findings for staff to include in the decision. At the conclusion of the
deliberations, staff will draft a decision for Board signature. That decision will be placed on the
December 19, 2018 agenda for Board signature. The 150 -day period for issuance of a final local
decision ends January 11, 2018.
VI. Record Attachments
The following attachments are materials that have been entered into the record after the October
15, 2018 Staff Memorandum. Only those record items that have not been presented to the Board
previously are attached to this memo.
1. 2018-11-27 Open Record Period 3 - Applicant Final Statement
2. 2018-11-20 Open Record Period 2 - Appellant Rebuttal L. Dickson
3. 2018-11-20 Open Record Period 2 - Appellant Rebuttal L. Dickson Exhibit D
4. 2018-11-20 Open Record Period 2 - Appellant Rebuttal L. Dickson Exhibit E
5. 2018-11-20 Open Record Period 2 - Appellant Rebuttal L. Dickson Exhibit F
6. 2018-11-20 Open Record Period 2 - Appellant Rebuttal L. Dickson Exhibit G
7. 2018-11-13 Open Record Period 1 - Applicant RE Final Note
8. 2018-11-13 Open Record Period 1 - Applicant RE Youth Activity Center Part 1
9. 2018-11-13 Open Record Period 1 - Applicant RE Youth Activity Center Part 2
10.2018-11-13 Open Record Period 1 - Applicant RE Timeline
247-18-000792-A (247 -18 -000051 -AD) Page 9 of 10
11.2018-11-13 Open Record Period 1 - Appellant L. Dickson4
12.2018-11-13 Open Record Period 1 -Appellant L. Dickson Exhibit A
13.2018-11-13 Open Record Period 1 - Appellant L. Dickson Exhibit C
14.2018-11-13 Open Record Period 1 - Appellant S. Bell
15.2018-11-13 Open Record Period 1 - R. Bell email
16.2018-11-12 Open Record Period 1 - T. Threlkeld email and letter
17.2018-11-08 Open Record Period 1 - N. Hermanns letter
18.2018-11-07 Open Record Period 1 - Applicant RE Odor & Noise Study
19.2018-11-06 Open Record Period 1 - Applicant RE CEC Will -serve
20.2018-11-05 Open Record Period 1 - N. Gould letter
21.2018-11-05 Open Record Period 1 - N. Gould Exhibit 1
22.2018-11-05 Open Record Period 1 - N. Gould Exhibit 2
23.2018-11-05 Open Record Period 1 - N. Gould Exhibit 3
24.2018-11-05 Open Record Period 1 - N. Gould Exhibit 4
25.2018-11-02 Open Record Period 1 - M. Piatt email
26.2018-11-01 Open Record Period 1 - State Fire Marshal emails
27.2018-10-29 Hearing Exhibit Schedule
28.2018-10-29 Hearing Exhibit A - Photos, Website Printouts
29.2018-10-29 Hearing Exhibit B - Staff PowerPoint
30.2018-10-29 Hearing Testimony Sign In Cards
a The appellant did not submit an "Exhibit B" with this packet.
247-18-000792-A (247 -18 -000051 -AD) Page 10 of 10
No.
Question
Appellant's Position
Applicant's Position
Staff Comment
Board Determination
If odor control is met, Board may
Yes:
No, based on the report's
include in the condition: ... Th e
Maybe approved, possibly with revised
Can the odor control
"odor is a sign of breakdown"
Yes, based on exceeding DCC filter
installation, maintenance, and use of the
condition
1
requirements met?
language and uncertainty of
requirements and 2x -3x more frequent filter
odor control system shall be as described
filter life.
changes than required by the manufacturer.
in the November 6, 2018 Odor and Noise
No:
Report.
Condition approval to achieve compliance or
deny the application.
Both noise maps show the criterion can
be met with or without sound barriers.
Yes:
No, the report does not
AC units and sound barriers are
May be approved, possibly with revised
Can the noise control
consider all 4 AC units or
Yes, the report includes all 4 AC units and
identified in the report. Staff
condition
2
requirements met?
identify the location of sound
the location of sound barriers.
recommends that if the noise control
barriers.
requirements are met, that the Board
No:
include a condition of approval to
Condition approval to achieve compliance or
require the sound barriers.
deny the application.
Staff requests the Board to make a
Yes:
Do monthly 4H meetings rise
Yes, a monthly organized
meeting of 6 or more youth
No, a YAC must be on a property where the
determination. Staffs opinion is that a
Must be denied
3
to the level of a Youth Activity
within a structure qualifies as
primary purpose is to serve youth.
YAC is likely somewhere in the middle
Center?
a YAC.
and would probably need permits or
No:
licenses.
May be approved
Yes:
Is the electrical utility
No, the second to last line in
The location essentially includes
The letter is explicit in identifying the
May be approved
4
verification requirement met?
the letter states "location"
"operation".
operation, a cannabis grow facility at
rather than "operation".
the subject property.
No:
Condition approval to achieve compliance or
deny the application.
Yes:
May be approved
5
Is the water source
No comments submitted.
Yes, water delivery will be the only water
Yes.
requirement met?
source and COID water will not be used.
No:
Condition approval to achieve compliance or
deny the application.
Topics That Do Not Address Approval Criteria
Is the proposal prohibited by
Yes, because the property
Board Determination
Is the proposal compatible with
Yes:
May be approved
No need for Board to make
the prohibition of new
was purchased, then the
findings.
No, based on staffs understanding of
The Sheriffs general concerns did not address approval criteria.
6
dwellings used in conjunction
nonfarm dwelling was
No, the uses are not interdependent.
DCC, ORS, DLCD's guidance, and a
The comments from the Deputy State Fire Marshal reference requirements from the 2014 Oregon Fire Code and not the DCC approval criteria.
No need for Board to make
with a marijuana crop?
approved, then marijuana
findings.
previous Board determination.
No:
No need for Board to make
findings.
Morality of marijuana use/if it
production was applied for.
No need for Board to make
should be legal
Condition approval to achieve compliance or
findings.
Black market sales and
The applicant is required to be licensed with the OLCC. Alleged black market and out of state sales statements were not based on any approval
No need for Board to make
overproduction statewide
deny the application.
findings.
Other marijuana grow sites
Multiple references and comparisons were made to other marijuana grow sites. Staff recommends the Board does not address other
No need for Board to make
Yes:
findings.
May be approved, possibly with revised
7
Are Airport Safety Combining
No, because of alleged glare
Yes, the proposal is compatible with the
Yes, the DCC requirements will be met.
Possible to strengthen condition with
condition
Zone requirements met?
from lighting and federal law.
airport and has met all requirements.
suggested addition.
No:
Condition approval to achieve compliance or
deny the application.
Topics That Do Not Address Approval Criteria
Question or Topic
Staff Comment
Board Determination
Is the proposal compatible with
Compatibility is not an approval criterion for marijuana production in the EFU Zone. Staff recommends the Board does not address
No need for Board to make
surrounding uses?
compatibility of the use.
findings.
County Sheriff's Concerns
The Sheriffs general concerns did not address approval criteria.
No need for Board to make
findings.
Comments from Deputy State Fire
The comments from the Deputy State Fire Marshal reference requirements from the 2014 Oregon Fire Code and not the DCC approval criteria.
No need for Board to make
Marshal
findings.
Neighborhood Character
Similar to compatibility, this category of comments did not address approval criteria.
No need for Board to make
findings.
Morality of marijuana use/if it
This category of comments did not address approval criteria.
No need for Board to make
should be legal
findings.
Black market sales and
The applicant is required to be licensed with the OLCC. Alleged black market and out of state sales statements were not based on any approval
No need for Board to make
overproduction statewide
criteria or evidence. Staff recommends the Board does not address these comments.
findings.
Other marijuana grow sites
Multiple references and comparisons were made to other marijuana grow sites. Staff recommends the Board does not address other
No need for Board to make
production sites.
findings.