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2019-62-Order No. 2019-008 Recorded 2/14/2019Recorded in Deschutes County CJ2019-62 Nancy Blankenship, County Clerk Commissioners' Journal 02/14/2019 12:52:09 PM IES Co�y{ II�II�I 2019-62 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer Decision in File Nos. Nos. 247-18-000545- CU/546-SP/811-MA (247-19-000141-A) •' 0__ �• 1 • 1I WHEREAS, on February 7, 2019, Joel & Julia Gisler and J's 4 LLC appealed (247-19-000141-A) the Hearings Officer's decision on File Nos. Nos. 247-18-000545-CU/546-SP/811-MA; and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the Board has given due consideration as to whether to review these applications; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board will review/hear 247-18-000545-CU/546-SP/811-MA (247-19-000141-A) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. The appeals shall be heard de novo in order to afford the Board the utmost discretion with which to interpret the Deschutes County Code and any other land use criteria at issue. Section 3. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to notice pursuant to DCC 22.24.030 and 22.32.030. Section 4. The Board, as the appeal hearings body, waives the requirement that the appellant provide a complete transcript for the appeal hearing pursuant to DCC 22.32.024(D). Dated this of February, 2019 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON PHILIP G. HE ERSON, Chair PATTI ADAIR, Vice Chair JTTES e��k)y�tary M& ANTHONY DEBONE, Commissioner PAGE 1 OF 1- ORDER No. 2019-008 COMMUNITY DEVELOPNPIENT ��� FEE;~°��_��,` ��, 1. Astatement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision, 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review asprovided inSection 22.32.027ofTitle 22. 4. Ifcolor exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also beprovided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of t County Code. The Notice of Appeal on the reverse side of this form must include the items listed abo Failure to complete all of the above may render an appeal invalid. Any additional comments should included on the Notice of Appeal. Staff cannot advise a potentialappellant astowhether the appellant iseligible to file an appeal (DCC Section 22.32.010) orwhether amappeal is va0id. Appellants should seek their own legal advice concerning those issues/� 4^ . Appellant's Name (print): Phune:(~�^2�_) Mailing Address:—City/State/Zip: Land Use Application Being Appealed: 2 � Property Descrii T Section Appellant's 5i ature 4;?Date: XY SIGNING THIS ION AND PA��G THE A AL'FEE, THE APPELLANT UNDERSTANDS Artl tr-di 444111 the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the da set for receipt of written records. i 117 NW Lafayette Avenue, Bend, Oregon 97703 1 pO.Box 60O5.Bend, OR 97708-6005 V" (541) 388-6575 @ cdd@)deschutes.org (G-) www,deschutes.org/cd 2/7/2019 Juno Email on the Web 96) U N 0 E-hruil on Lhe Web Print Message Close From a Matt Martin <Matt.Martin@deschutes.org> To Myles A. Conway"' <mconway@martenlaw.com> Cc "'Willis, Joe <JW1llis@SCHWABE.com>, 'Joel Gisler' <joelgisler2@juno.com>, "Merissa A. Moeller" <mmoeller@martenlaw.com> Subject a RE: HO Decision 247-18-000545CU/546-SP/811-MA Date Wed, Feb 06, 2019 04:55 PM The fees associated with an appeal to the Board of County Commissioners are $2,718+20% of original application fees. In this matter, the fee is: $2,718.00 (Appeal to Board of Commissioners Base Fee) 570.80 (20% of $2,854 for Conditional Use) 200.80 (20% of $1,004 for Site Plan Review) + 200.80 (20% of $1,004 for Modification of Application) $Q,PZ0O.An 40 Total 1 11 �, Regarding the transcript, audio/video is available online now at the following link: http://deschutescountyor.'Iqm2.coi-n/Citizens/Detail —Meeting.aspx?ID=2196. If you are interested in the County providing a copy, please let me know and I can make those arrangements. Please note that DCC 22.32.024(D) allows the hearings body (Board of Commissioners) to waive the requirement that the appellant provide a complete -transcript for the appeal hearing. The Board will decide on this waiver when considering whether to hear the appeal. Lastly, when is the appeal expected to be filed? I want to inform the staff working the counter that day to assist in the filing. Matthew Martin, AICD I Associate Planner DESCHUTES COUNTY COMMUNlTY DEVELOPMENT 117 NW Lafayette /Avenue I Bend, Oregon 97703 PO Box 6005 1 Bend, Oregon 97708 - Tel: (541) 3304.6201 wwwdeschutes.oig/cd 008 Disclaimer- Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to COIIStiftlte final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. http://webmaila.juno.com/webi-nail/new/8?block=l &msgList=00002yk0:001 SMs8300003L2v&folder=lnbox&destFolder=inbox&command=print&msgNu... 1/2 NOTICE OF APPEAL Decision on Appeal: Decision of the Deschutes County Hearings Officer approving conditional use and site plan approval to establish a marijuana retail primary use delivery establishment in the Tumalo Commercial District of the Tumalo Rural Community. The decision under appeal is dated January 29, 2019. File Number: 247-18-000545-CU/546-SP/811-MA Property Description Township 16 Ranae 12 SectionMD Tax lot 161231D000 302 Applicant: Appellant: Appellant's Attorney: Standin14 to Appeal H2D2 Properties, LLC 20585 Brinson Blvd #8 Bend, Oregon 97701 Joel Gisler and J's 4 LLC 1470 NE First Street, #500 Bend, Oregon 97701 (541) 815-0966 Joe Willis Schwabe Williamson & Wyatt 360 SW Bond, Suite 500 Bend, Oregon 97702 (541) 749-4044 Under Deschutes County Code (DCC) 22.32.010.A(1), Joel & Julia Gisler and J's 4 LLC (together "Gisler") has standing as a party to appeal the decision listed above. Gisler is a "party" to the administrative proceedings before the Hearings Officer pursuant to DCC 22.24.080(B) and is aggrieved by the decision since it adversely impacts his property rights including causing a depreciation in value. Gisler submitted both written and oral testimony in opposition to the application, all of which is contained in the hearing record. Procedural History and Background On July 5, 2018, the applicant submitted an application to utilize property within the Tumalo Rural Community Zone for a marijuana retail operation, a food cart and a farmer's market. On or about September 28, 2018, the applicant modified its proposal to eliminate the originally proposed food cart and farmer's market uses and in addition shifted the "primary use" from "marijuana retail" to "marijuana delivery". Deschutes County Planning Staff issued a Staff Report identifying several problems related to the proposed application and concluding that it {00555756.DOCX /3} hearing was held before the Deschutes County Hearings Officer on November 29, 2018. In connection with the hearing, Gisler raised the issues identified in this Notice of Appeal and submitted supporting evidence into the record. The Hearings Officer issued a decision approving the application with conditions on January 29, 2019, and this appeal has followed. Project Description and Access Easement The applicant does not have direct road access to any portion of the subject property. The applicant's only access to the subject property is a private driveway running directly through private property owned by Gisler. The private driveway on the Gisler property is utilized by Gisler and his tenants to support a variety of different commercial operations on the Gisler property. The paved easement area is only 20 feet wide and the easement contains no sidewalk or separated pedestrian path to the applicant's property. The Hearings Officer wrongly removed a code requirement that requires pedestrian walkways to the public street. To meet both code requirements the pavement must be widened and without the Hearings Officer relieving applicant from the code requirement for pedestrian walkways, they would have to have been added. In addition, there is a condition for providing direction into the marijuana use by signs. There is no way applicant has a right to place a sign on Gisler's property. Hearings Officer at one point described the date of the easement correctly but at the analysis point it was described incorrectly as being in 2012 not 2002. Gisler made clear that at the time of the easement, marijuana use was illegal under the Federal CSA and even under Oregon law recreational marijuana use was unlawful. All marijuana use remains illegal today under Federal Law. To conclude the easement allows use for a violation of Federal CSA would have to include a determination the Gisler's intent was to allow that when the easement was granted which, with due respect to the Hearings Officer, is absurd. Any effort to compel Gisler to allow the condition due to Measure 91 (ORS Ch 475B) which first allowed use of recreational marijuana would violate the exemptions from that very act.ORS 47513.020 and (5) "ORS 47513.010 to 475.545 may not be construed : (5) To require a person to violate a federal law." In addition, any effort to compel Gisler to allow the condition due to Deschutes County Marijuana ordinances is prohibited by State law that prohibits retroactive ordinances by Counties if it is claimed to be the source of compelling Gisler to allow the use.. All this was pointed out to Hearings Officer but he gave it no credence. In 2002, Gisler granted an easement (the "Easement") to a former owner of the subject property (Lorene Collins) to use his driveway for access to the existing house on her property. See Hearing Exhibit 5 (Written Testimony of Joel Gisler and J's 4 LLC.) The Easement is recorded in the Deschutes County public records as document 2002-44020.1 The Easement provides, in relevant part: ' The Hearings Officer's decision incorrectly identified the recording number as 2002-11020. See Hearings Officer's Decision at 2. 2 f 00555756.DOCX /31 "Grantor reserves the right to use said easement for purposes of access to Grantor's Property. The parties shall cooperate during periods of joint use of the easement so that each party's use shall cause a minimum of interference to the other party; however in case of conflict, Grantor's right of use shall be dominant." See Written Testimony of Joel Gisler and J's 4 LLC (Nov. 29, 2018), Attachment A (emphasis added). The emphasized language was included to protect Gisler from any uses of the easement that would "be detrimental" to his interests. See Hearing Exhibit 5 (Written Testimony of Joel Gisler and J's 4 LLC.) The applicant contends that it is the successor in interest to the Easement and that it may use the Easement for its proposed retail marijuana dispensary operations, even though such use was not contemplated at the time the Easement was granted. The sale of marijuana for recreational use was illegal both under State and Federal law and remains illegal under Federal law as does all marijuana sale and use. Gisler testified that he will not allow the applicant to use the Easement to access the proposed dispensary and primary use of delivery. His objection and stated intention is clear. The record shows applicant's use would add significant numbers of new trips across the easement. It would require significant modifications by widening the impervious surfaces. It has created conflicts with Gisler's tenants. It would put Gisler at risk of a forfeiture proceeding and additional liability risk if a marijuana use related accident should occur on the easement on his property. There is tremendous conflict. The hearing record contains evidence and argument submitted by Gisler to demonstrate that use of the Easement is prohibited by the Federal Controlled Substances Act and that the applicant has failed to demonstrate it has adequate access to the subject property under provisions of the Deschutes County Code, including DCC 18.128.015(A), providing that a conditional use applicant has the burden to demonstrate that a site is "suitable" for the proposed conditional use based, in part, on the "adequacy of transportation access to the site". Gisler submitted evidence into the hearing record demonstrating that access across his private property for a land use that is illegal under. Federal law creates significant risks to the detriment of Gisler and surrounding properties, and that Gisler is prepared to block illegal use of the Easement. The Hearings Officer declined to consider whether the Federal Controlled Substances Act preempts state and local laws saying he could not make that determination on the record. That was his conclusion while ignoring a controlling Oregon Supreme Court case, and the text of Measure 91 (ORS Ch 47513) Ch 475B.020(1)- (6)makes clear the state law allowing Marijuana "may not be construed: (6) To exempt a person from a Federal Law or obstruct the enforcement of a Federal Law" Federal Law makes it illegal for Applicant's proposed use of the subject property and Easement for marijuana retail sales with the primary use being "marijuana delivery". State law nor County ordinance can protest Gisler from violating that law by allowing the easement for that use across his land. The federal law also would render the easement invalid if construed to allow such use. The Hearings office was plain wrong. Hearings Officer's Decision at 15-16. Additionally, County Staff recommended a condition of approval requiring that the access driveway, which is currently approximately 20 -feet wide, be widened to 24 -feet wide to accommodate two-way traffic to the proposed dispensary. Gisler objected to the condition of 3 {00555756.DOCX /31 approval, which would violate the terms of the Easement, and testified that he would not agree to widen the driveway that runs over his property. The Hearings Officer adopted the condition, finding that "imposing a condition of approval requiring Applicant to improve the access from 8t" Street is reasonable, appropriate and supported by relevant law." Hearings Officer's Decision at 30. The Hearings Officer relied on the condition to make multiple findings of compliance with the Deschutes County Code. The Hearings Officer cited no specific law claimed to support this other than the conclusion which is contrary to the law controlling easements and preemption provided to him in the record which shows it is contrary to law. The condition is not reasonable. It violates Gisler's rights under the Easement. If fulfilled it subjects his property to risk of forfeiture. It cannot be fulfilled short of Circuit Court litigation where applicant obtains a judgment on ability to use the Easement in his favor. But even that is not required by the condition. As it stands if not reversed there is likely a taking of Gisler's property rights under the 5t" Amendment and as a violation of Substantive Due Process since it is an arbitrary and capricious act to impose this burden on a law abiding neighbor in favor of an admitted violation of Federal Law and the attendant consequences to Gisler. Hearings officer gave no credence to credibility issues when it carne to location within 1,000 feet of Tumalo State Park. Twice applicant stated in writing (once on the original application, once again on the amended application) that the use was in compliance with the 1,000 foot rule. The only independent professional opinion was from Tye Engineering which shows it is not quite 1,000 feet away and noted as any professional must the limitations inherent in using the system used by applicant. This independent professional cannot be charged with careless clicking of the mouse. On applicant's side, only applicant submitted information. Applicant's interest does fairly subject him to bias in clicking the mouse. Applicant's different submittals show differences but all to his favor. Hearings Officer failed to keep the burden of proof on applicant here especially where applicant chose not to employ a registered surveyor. If higher and more probative proof was available to applicant to satisfy the burden of proof and not brought forward is should be construed to be adverse. The same can be said about who can come into the premises. Unchallenged evidence shows applicant touted his marketing style to invite folks into the facility by separating the dispensary room from the waiting room. He touted that State law does not require any ID until the dispensary is entered. That was never denied or renounced so it is fair to assume that is exactly what will continue including in minors entering. The Hearings Officer erred in his treatment of what can be considered in determining "harmonious and compatible" which if left uncorrected, will block community members from voicing their views of what is harmonious and compatible in their neighborhoods. Spanish Language School and Tumalo State Park Gisler also objected to the application on the record because of a Spanish School located on Gisler's property within 1,000 feet of the proposed dispensary. The school holds classes for children, and some classes are offered independently through Oregon Parks & Recreation Department. In written testimony, Gisler argued that the applicant had failed to demonstrate compliance with DCC 18.116.330(C)(7)(a)(iv), requiring that the proposed marijuana retailer be located a minimum of 1,000 feet from a "youth activity center." Written Testimony of Joel Gisler and J's 4 LLC (Nov. 29, 2018) at 6. The Hearings Officer found that Gisler also argued, 4 {00555756.DOCX /31 at the Hearing, that the Spanish School should be considered a private school under DCC 18.116.330(C)(7)(a)(ii). Hearings Officer Decision at 9. The Hearings Officer found that the Spanish School is not a private school, but did not address whether the Spanish School is a "youth activity center" under applicable law. Hearings Officer Decision at 9-10. Aside from the definition of school argument it is nevertheless clearly a school that teaches minors and also must be considered when trying to assess if the marijuana use is `harmonious" of "compatible" with surrounding uses. The Hearings Officer concluded the marijuana use was both harmonious and compatible and rejected any concept of what he called subjective neighborhood complaints which he ruled did not qualify as evidence of not being harmonious or compatible.. The complaints were not subjective. Gisler has tenants complaining. The Deschutes County Sheriff s objection is not subjective Gisler's uncontroverted testimony that his property values will be diminished is not subjective. The undisputed fact of the Spanish School teaching minors next door is not subjective. The Federal violation of law by applicant's use is admitted and not subjective. The record also contains evidence that Tumalo State Park may be within 1,000 feet of the proposed dispensary, which is prohibited by DCC 18.116.330(7)(a)(v). The Hearings Officer found that "the separation distance between the Subject Property and Tumalo Park exceeds, if ever so slightly, 1,000 feet," based on a lack of professionally prepared survey information in the record. The Hearings Officer noted that professionally prepared survey information "may have swayed the Hearings Officer's decision." Hearings Officer Decision at 40-41. Here the consideration of credibility should tip the scales against applicant who twice falsely certified his sought after use complied with Federal Law The Hearings Officer erred when he found that a primary marijuana delivery use is allowed in Deschutes County Code. Applicant specifically and clearly states that is what the amended application seeks.. Trucks delivering product to the site and some vehicles making deliveries from the site across Gisler's property over his legitimate objection. Applicant claims he has liability insurance for the site but the site as yet is not used for Marijuana uses. On top of the obvious increased risk to Gisler, Hearings Officer gave no credence to the serious risk of a forfeiture action by the Federal government or the increased liability risk to Gisler. There clearly is a conflict between Gisler and applicant over the use. It is inconceivable for anyone to deny that. Once established it is also clear that Gisler dominates over that use. That all exists as a matter of law. The application should be denied or at a minimum applicant should be conditioned to obtain the Circuit Court determination he claims is a purely private matter.. As it is, applicant is encouraged to push self help to Gisler's property. This Commission should never allow that to stand. Request and Reasons for De Novo Review For the reasons described in this Notice of Appeal, the Hearings Officer erred in his determination that the applicant's proposed retail marijuana operations on the subject property are consistent with applicable conditional use and site plan approval. The appellant seeks "de {00555756.DOCX /31 novo" review of this appeal so that the record may be supplemented with additional information to demonstrate the applicant has not satisfied the applicable Deschutes County land use approval criteria. For example, supplementing the record is appropriate in light of the Hearings Officer's uncertainty about the relative location of Tumalo State Park. A de novo hearing will not cause the 150 -day time limit to be exceeded in this matter. The appellant requests the Board hear this appeal to resolve important legal and factual issues related to: (1) an applicant's ability to utilize an easement that runs across privately owned lands to service a proposed land use that is illegal under Federal law; (2) the County's authority to condition its approval on the requirement that an applicant's neighbor widen his driveway to accommodate traffic to a proposed marijuana dispensary; (3) the adequacy of a private access easement to meet access requirements for a commercial use under the County Code; (4) the compatibility of proposed marijuana dispensary operations with existing adjacent commercial uses, including a Spanish language school and Tumalo State Park, in the Tumalo Rural Community Zone; and (5) the adequacy of the transportation studies offered by the applicant in support of its proposed operations. Specific Issues on Appeal In addition to the above statements, The Hearings Officer erred in finding the proposed application consistent with applicable legal criteria and development standards. The Board of Commissioners should find that the applicant has failed to demonstrate the adequacy of access to the subject property and that the applicant has failed to satisfy applicable conditional use and site plan approval. The specific issues on appeal are as follows: 1. The applicant has not demonstrated the adequacy of access to the subject property to serve a proposed marijuana retail operation that remains illegal under Federal law. 2. The applicant has not demonstrated that it has a legal right of access to the subject property for the proposed use. 3. The applicant has not demonstrated that the subject application is compatible with existing and projected uses on surrounding properties as required by the Deschutes County Code, including DCC 18.128.015. 4. The Hearings Officer erred in determining the applicant had demonstrated adequate access to the subject property as required by the Deschutes County Code, including DCC 18.128.015. 5. The Hearings Officer erred in determining that the County may condition its approval on a requirement that the applicant's neighbor widen his driveway to accommodate traffic to the proposed marijuana dispensary. 6. The Hearings Officer erred in determining the applicant has submitted a traffic study and analysis consistent with applicable County requirements. 7. The Hearings Officer failed to consider the proximity of the proposed marijuana retail operation to a youth activity center and/or erred in determining that the proposed dispensary complies with DCC 18.116.330(7)(a)(iv). 8. The Hearings Officer erred in determining that the proposed dispensary is more than 1,000 feet from Tumalo State Park and other uses prohibited by DCC 18.116.330(7). 6 {00555756.DOCX /31 9. The Hearings Officer failed to recognize the requirements of the Federal Controlled Substances Act and the doctrine of Federal preemption on applicable Deschutes County land use approval criteria. 10. The Hearings Officer failed to recognize the significant risks and liability the subject application will place on the Gisler family -whose property will be utilized for an illegal use without their consent or approval. Conclusion -Request for Review For the above-described reasons, the appellant respectfully requests that the Board hear the above referenced appeal and find that the proposed application has not demonstrated compliance with applicable land use approval criteria as specified in the Deschutes County Code and applicable state and Federal legal requirements. Signature J4's LLC by Joel G' ler ... Dated 7.16 Feb 2019 Joel Gisler.. . .. ... .. ............. .... ...............Dated7?i.Feb 2019 Julia Gisler ... ... .. .... ...... ..........Datedh%.Feb 2019 7 {00555756.DOCX /31 RetDcation of Trailer World driveway from 7th to Sftic4der Ave. doveway from a '[6 ap, y R6, to Woo Ave� Olosuro of 5th $t. and Bruce Ave, with cul-de-sacs on both -sides of US20 ROW needsAeWninq walls needed along onra,rnp wfill impact 0 S Possible flow needed for conversions at S2017th ROW needsiretaining waits nee, ded along oft -ramp will impact SE lot E114,11, 150 75 0 750 for vehicles will need to be considered as design is further refined STREET HOW will need to be acquired on all