2019-321-Minutes for Meeting June 11,2019 Recorded 7/23/201971-1' S CSG
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
2:00 PM
Recorded in Deschutes County CJ2019-321
Nancy Blankenship, County Clerk
Commissioners' Journal 07/23/2019 8:23:32 AM
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2019-321
ALLEN CONFERENCE ROOM
Present were Commissioners Phil Henderson and Anthony DeBone. Commissioner Patti Adair was
present at 3:25 p.m. due to her attendance at another meeting. 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 several identified representatives of the
media were in attendance.
CALL TO ORDER: Chair Henderson called the meeting to order at 2:05 p.m.
ACTION ITEMS
1. Paradise Fire Event Debrief
Sgt: Nathan Garibay and County Forester Ed Keith presented the discussion
for Deschutes County to prioritize strategies to move forward in the
prevention of catastrophic fires in Central Oregon. Commissioner DeBone
commented on the value of creating a healthy and fire resilient landscape.
Eight themes were identified by the outcome of April 18th learning lab'Can
Central Oregon Become the Next Paradise?' and include: planning,
communications, codes & ordinances, integrated training, evacuation
planning - ingress & egress, infrastructure protection, public health, and
BOCC MEETING JUNE 11, 2019 PAGE 1 OF
fuels management. Commissioner Henderson recommended adding a
strategy of evacuation planning. Sheriff Nelson spoke on the history of fires
in Central Oregon. Disaster planning is also included in the Natural Hazards
Mitigation Plan and Sgt. Garibay is working on the update. Commissioner
DeBone explained the importance of communications and providing facts to
the community. An annual training of wildfire simulations would be
beneficial between agencies. Evacuation contingency planning is a priority
discussion with the agencies. Mr. Keith commented on a priority for, creating
a plan for infrastructure loss and work on defensible space and forest
restoration and fuels management are a continual process. Commissioner
DeBone commented on the values of biomass. Road Department Director
Chris Doty recalled lessons learned from the solar eclipse event regarding
traffic and evacuation routes. County Administrator Anderson commented
on the importance of pulling all the emergency operations plans together.
Commissioner Henderson recommended immediate attention is given to
evacuation planning.
2. Courthouse Capital Needs Update
Facilities Director Lee Randall, Circuit Court Administrator Jeff Hall, and
Presiding Judge Ashby presented. Mr. Randall reviewed the design and
permitting process and construction timeline and the estimated target
completion time is 2022. Judge Ashby spoke on the priority of lobbying the
Legislature to add a judge to respond to the case load. Mr. Hall commented
on funding for the courts. Ideally, the courthouse remodel will be scaled for
both current capacity needs and some level of future capacity. The
possibility of county -funded pro -tem judges is a consideration. The remodel
is anticipated to include secured parking.
3. Nonprime Resource Lands Amendment Update
Community Development Department staff Zechariah Heck, Peter Gutowsky,
and Nick Lelack presented the amendment overview. The public hearing
process included two hearings with the Planning Commission. The
Department of Land Conservation and Development (DLCD) submitted a
BOCC MEETING JUNE 11, 2019 PAGE 2 OF 4
response expressing legal concerns with Deschutes County's ability to re-
designate six residential areas. Six areas have been identified for re-
designation that appear to contain suitable soils for farm and forest use
however, they are committed to residential uses. Commissioner DeBone
commented on forests and development patterns in Europe and looks for
research on how lands are managed in areas that have that length of history.
The Board supports moving forward with the Planning Commission and
directed staff to send a response letter to LCDC and the Oregon Department
of Land Conservation and Development.
4. Findings Review Decision for H2D2 Properties Marijuana Retail
Application
Matt Martin, Community Development Department presented.
Commissioner Henderson commented on recent statements relative to
recent BOCC MJ application denials. Mr. Martin reviewed the draft document
for decision. The Board requested a longer time frame for the decision
matrix to allow for additional time for review. Additional language to the
findings document were recommended. Adam Smith, Assistant Legal
Counsel worked out language revisions with the Board. Further
deliberations will be scheduled for Friday, June 14tH
COMMISSIONER UPDATES
• Commissioner Henderson spoke on the Eastern Counties Association
meeting on Friday, June 7.
• Commissioner Adair attended the Pole Creek Fire Tour with the US Forest
Service.
• Commissioners Adair and Henderson attended the AOC Committee day in
Salem yesterday.
• The Board participated in the Sisters Rodeo Parade on Saturday, June 8.
Commissioner Adair requested parade serapes for future parade events.
BOCC MEETING JUNE 11, 2019 PAGE 3 OF 4
OTHER ITEMS: None presented
EXECUTIVE SESSION: None presented
Being no further items to come before the Board, the meeting was adjourned at 5:07 p.m.
TTT°
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RECORDING SECRETARY
ANTHONY D iib O i f,„ COMMISSIONER
BOCC MEETING JUNE 11, 2019 PAGE 4 OF 4
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o Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BOCC MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
2:00 PM, TUESDAY, JUNE 11, 2019
Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend
CALL TO ORDER
ACTION ITEMS
1. 2:00 PM Paradise Fire Event Debrief - Sgt Nathan Garibay and County Forester
Ed Keith
2. 3:00 PM Courthouse Capital Needs Update - Lee Randall, Facilities Director
3. 3:30 PM Nonprime Resource Lands Amendment Update - Zechariah Heck,
Associate Planner
4. 4:15 PM Findings Review Decision for H2D2 Properties Marijuana Retail
Application - Matt Martin, Associate Planner
COMMISSIONER'S UPDATES
EXECUTIVE SESSION
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 BOCC Meeting Agenda Tuesday, June 11, 2019 Page 1 of 2
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
Board of Commissioners BOCC Meeting Agenda Tuesday, June 11, 2019 Page 2 of 2
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AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC TUESDAY MEETING of JUNE 11, 2019
TITLE OF AGENDA ITEM: Paradise Fire Event Debrief
PRESENTING: Sgt. Nathan Garibay & County Forester Ed Keith
BACKGROUND AND POLICY IMPLICATIONS:
The purpose of the discussion is to identify future action items for Deschutes
County to implement that will likely mitigate wildland fire impacts, as demonstrated
with the workshop on April 18, 2019. The attached list of "possible" action items wil
facilitate the discussion/brainstorming with the Deschutes County Board of County
Commissioners and other attendees of the April workshop. The desired outcomes
are to agree on the priority action items and a strategy to proceed with
implementation.
1300 NW Wall Street Bend, Oregon 97703
1 (541) 388-6571 @ board@deschutes .org @ www,deschutes.org
Suggested Long -Term Recovery Strategies from 'Can Central Oregon Become the Next ParadiseT
Themes
Strategy
Strategy Description
Primary
Supporting
1. Planning
1.1 Develop
Create a framework and strategic plan
SO (EM)
ALL
and finalize a
for Deschutes County for events like the
disaster
Camp Fire that can be applied to all
recovery plan
hazards.
Create a plan and partnerships for
SO (EM)
hiring case workers for recovery and
funding for those position
Plan should be long term (multi year)
SO (EM)
NR (PW),
and clear on the timeframe
CS
Have organization (ICS) built prior to
SO (EM)
disaster don't want to building it on the
fly
1.2 Develop
To prepare for retirements or careers
ALL
transition plans
changes, each agency should have
to address
transition plans in place
turnover
2.
2.1 Formalize
Identify who/which agency has the
SO (EM),
ALL
Communications
JIC process
authority to activate the JIC
ODF, COFMS
Identify who(s) would be the JIC
Manager and is qualified
Identify who would serve and be
mobilized
Identify multiple facilities that could
serve as JIC
Formalize a remote JIC options as well.
2.2 Shared
Gain and maintain support from multiple
CS, NR (PW)
SO (EM)
vision with other
partners
stakeholders
(i.e. Cities,
Governor's
Governor
Need to ensure bi-partisan/apolitical
solutions so that solutions are long
lasting and above party funding battles.
Office)
2.3 Continue
How as citizens in Central OR we
CS
ALL
messaging on
continue to learn to live with wildland
Cohesive
fire. (i.e. red flag warnings, defensible
Strategy
space, hardening homes, evacuations,
realistic about fire response during PL 4
& 5)
Cohesive Strategy should be marketed
like Smokey Bear.
Recovery and post fire should be
discussed all year long
Risk is either misunderstood or not
accepted
Create consistency on all media outlets
3. Codes &
3.1 Explore
Utilize best practices to inform local
CDD
NR (PW),
Ordinances
land use
efforts to develop land use planning and
CS, BOCC
regulations
regulations with wildfire in mind
3.2 Explore
Focus on breaking the structure ignition
CDD
NR (PW),
building codes
chain of events with ignition resistant
CS, BOCC
construction, with emphasis in the high
density housing areas
3.3 Build
With potential additional code, will need
CDD
NR
enforcement
capacity to enforce defensible space
(PW),CS,
capacity
and building code.
BOCC
4. Integrated
4.1 Implement
Preparation and ongoing
COFCA,
ALL
Training
cross boundary,
discussions/dialog regarding "what if's"
COFMS, ODF
jurisdictional
will be critically important to mitigate the
& CS
simulation at
catastrophic occurrence. Always learn
least once per
from others going through recovery
year
4.2 Coordinate
Training must include representatives
COFCA,
ALL
across
from private firefighting resources and
COFMS, ODF
jurisdictions
other counties
& CS
regularly and
promote cross-
Practice and develop SOPs for unified
training
command
4.3 Plan and
Practice at what point do you switch
CS, COFCA,
ALL
practice for
from property saving techniques to life
COFMS, ODF
worst case
saving techniques
scenarios
5. Evacuation
5.1 Identify
Develop shelter in place contingencies
SO (EM),
CS, 911
Planning/Ingress
alternative
& places for RVs
COFCA
& Egress
evacuation sites
and models
5.2 Mass
Develop mass evacuation plans for
SO (EM), 911,
ALL
Evacuation
large scale events
RD
Models
5.3 Re-entry/re-
Create re-entry/re-population plans and
SO (EM), 911,
COFCA,
population
communicate them to necessary
RD
COFMS,
plans
partners, should not be an internal
ODF
document
6. Infrastructure
6.1
Create a database of critical inventory
911, RD, CDD,
ALL
Infrastructure
protection
Inventory
sites and their condition
SO (EM)
6.2 Harden
Ensure the sites are built out of ignition
CDD, BOCC,
ALL
Communication
resistant materials and fuel reduction
SO (EM)
sites and other
has taken place around critical sites.
critical
infrastructure to
wildfire
6.3 Ensure
Create a plan for infrastructure loss
RD, CDD, SO
ALL
there is a plan
(water availability, cell tower,
(EM)
for
emergency notifications, etc.) by
infrastructure
ensuring there are back ups.
redundancy
7. Public health,
7.1 Identify
Identify alternative sites for debris
CDD, SW
BOCC
sanitation, and
alternative sites
disposal for burned homes/buildings.
debris collection
and removal
7.2 Identify
Create a plan for potential public health
HD, CS
SO (EM),
potential public
impacts from debris impacts, smoke
BOCC
health threats
impacts, etc.
8. Pace and scale
8.1 Increase
More prescribed fire in strategic
COFMS, ODF,
BOCC
of fuels
prescribed
locations
CS, NR (PW),
management and
burning and
COFCA
forest restoration
healthy forest
Create more social license for
activities
prescribed fire, smoke, and wildfire use
Increase prescribed burning on private
lands on all ownerships
9-1-1/Dispatch 911, Board of County Commissioners BOCC, Cohesive Strategy CS, Community Development
Department CDD, Health Department HD, Natural Resources Department, Forestry NR (Project Wildfire - PW),
Road Department RD, Sheriff's Office SO (Emergency Management — EM), Solid Waste SW
External Organizations: Central Oregon Fire Chief's Association COFCA, Central Oregon Fire Management
Service COFMS, Oregon Department of Forestry ODF
ES �oG
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 BOCC Tuesday Meeting of June 11, 2019
DATE: June 5, 2019
FROM: Zechariah Heck, Community Development, 541-385-1704
TITLE OF AGENDA ITEM:
Nonprime Resource Lands Amendment Update
BACKGROUND:
CDD Staff will provide the Board an update on the Nonprime Resource Lands Amendment.
ATTENDANCE: Nick Lelack, Peter Gutowsky, Zechariah Heck.
►I ►I• T, \_ _PN
TO: Board of County Commissioners ('Board")
FROM: Nick Lelack, AICP, Director
Peter Gutowsky, AICP, Planning Manager
Zechariah Heck, Associate Planner
DATE: June 4, 2019
SUBJECT: Nonprime Resource Lands - Update
The Planning Commission held the first of two public hearings on May 23, 2019 regarding
Comprehensive Plan amendments addressing Nonprime Resource (NPR) Lands (File No. 247 -19-
000265 -PA).' The second hearing is scheduled fortune 13. The Department of Land Conservation and
Development (DLCD) recently provided oral and written testimony that warrants a discussion with the
Board.
I. BACKGROUND
There are two components to the NPR Lands amendments.
Comprehensive Plan policies identify opportunities to redesignate six areas committed to
residential uses that were platted or conveyed prior to State enabling planning legislation taking
effect in Deschutes County; 2 and
2. Comprehensive Plan policies establish eligibility criteria for redesignating Exclusive Farm Use
(EFU) or Forest Use zoned properties to NPR Lands.
If the NPR Land policies are acknowledged, Deschutes County would propose a new Comprehensive
Plan designation and NPR -10 zone solely to the six areas committed to residential uses. This new zone
would allow residential uses outright. The County would also adopt into Deschutes County Code, Title
18 - Zoning, a NPR -20 zone. This zone would be required for all future "Non -Resource" lands quasi-
judicial Comprehensive Plan / Zone Change applications.3
NPR Lands, which are also known under State law, OAR 660-004-005(3) as "Non -Resource" Lands, are areas with an
exceedingly low capacity to be managed for commercial agriculture and/or forestry activities. Since 2007, 24 Non -
Resource Land applications have been approved in Oregon; six of those or 25% have occurred in Deschutes County. For
context, the six applications in Deschutes County changed EFU properties to Multiple Use Agriculture 10.
The six residentially committed areas are: Haner Park, Section 36, Skyline Subdivision and 1 st Addition, Squaw Creek
Canyon Recreational Estates 1 st Addition and Meadow Crest Acres Subdivision.
Upon adoption, eligible properties would no longer be able to utilize a Multiple Use Agricultural 10 zone.
1 1 7 W/ Lafayette Ave i we, 'Bend, Oi egon 97703 1 P.O. box 6005, Bend, OR 97708-6005
Q� (5/11)388-6575 �CcticddOdcschutE._
org Wnvw.oeschulcs.org/cd
II. DLCD TESTIMONY
Tim Murphy, DLCD Farm and Forest Lands Specialist, submitted a letter on May 15, 2019 expressing
legal concerns with Deschutes County's ability to redesignate the six committed residential areas
(Attachment 1). The following excerpt is from Page 2.
State rule does not provide an opportunity to designate lands as nonresource if the land meets the
agricultural capability class or forest productivity thresholds in the state's "agricultural lands" and
'forest lands" definitions.
The six residential areas contain suitable soils for farm and forest use based on Natural Resource
Conservation Service and U.S. Forest Service data. However, as mentioned above, they are committed
to residential uses with no history of ever being commercially farmed or forested.
Jon Jinings, DLCD Community Service Specialist, testified in person on May 23. Mr. Jinings reiterated Mr.
Murphy's letter, and stated that these areas are also not eligible for an exception to Goals 3 (Agricultural
Lands) and 4 (Forest Lands). He stated DLCD recommends a "hard stop" to the current process because
state law does not enable Deschutes County to correct these inaccurate Comprehensive Plan and
zoning designations.
On June 3, CDD staff met with Mr. Jinings, Mr. Murphy and other DLCD staff. They stated that the agency
would continue to work with Deschutes County to address inaccurately designated lands. They also
suggested that if the County believes state administrative rulemaking is necessary to define "non -
resource lands" that we should submit a letter as soon as possible because the Land Conservation and
Development Commission (LCDC) is in the process of developing its 2019-2021 Work Plan. We informed
them that the Board made a similar request after Deschutes County unsuccessfully explored correcting
mapping errors under House Bill 2229 in May 2015 (Attachment 2).
Staff looks to the Board for direction on how to proceed with the NPR Lands amendment. The
Board may want to consider withdrawing them and request DLCD and the LCDC perform rulemaking
by updating the May 2015 letter and presenting it to LCDC at its July meeting in Eastern Oregon.
Attachments
1. Tim Murphy, DLCD Letter
2. 2015 Deschutes County Letter to DLCD
Page 2 of 2
OP O
A
-ar—eglon
Kate Brown, C;overnor
May 15, 2019
Department of Land Conservation and Development
Peter Gutowsky, AICP, Planning Manager
Deschutes County Community Development
117 NW Lafayette Avenue
Bend, OR 97703
635 Capitol Street NE, Suite 150
Salem, Oregon 97301-2540
RE: Comprehensive plan amendments for nonprime resource lands
County # 247 -19 -000265 -PA, DLCD # 003-19
Dear Peter:
Phone: 503-373-0050
Fax: 503-378-5518
www.oregon.gov/LCD
Thank you for the opportunity to review the proposed amendments to the Deschutes County
Comprehensive Plan. The proposal would allow for lands currently designated as agricultural or
forest lands to be redesignated as nonprime resource lands, provided they do not meet the
definitions of "agricultural lands" or "forest lands" in the Statewide Planning Goals and Oregon
Administrative Rules (OAR). We understand this proposal will be followed by future
amendments to the county's zoning code.
The Department of Land Conservation and Development (DLCD or the department) recognizes
the thoughtful approach the county took when developing these amendments and the county's
efforts to promote public participation. The majority of the amendments appear to be consistent
with the requirements in state rules. However, there are a few issues of concern to the
department, as follows:
1. Policy 3.11.3.
Agricultural lands
The "agricultural lands" definition in OAR 660-033-0020(1) provides additional suitability
considerations (e.g. climactic conditions, technological and energy inputs required,
accepted farming practices) that are not addressed in the proposed amendments. Also
for consistency with state rule, Policy 3.11.3.a.ii.4. should address land that is adjacent
to or intermingled with Class I -VI soils within a farm unit.
Forest lands
The proposed amendments do not address how forest productivity should be evaluated.
We assume this will be addressed in future amendments. OAR 660-006-0010 provides a
methodology for evaluating forest productivity and nonprime resource designations
should be evaluated in accordance with that rule. DLCD has data available that may be
helpful.
The "forest lands" definition in OAR 660-006-0005(7) includes lands that are suitable for
commercial forest uses, including adjacent or nearby lands which are necessary to
permit forest operations or practices. Whether or not land is necessary for conducting
forest operations or practices should be considered before it is designated nonprime
resource.
Deschutes 247 -19 -000265 -PA
May 15, 2019
Page 2 of 2
OAR 660-006-0005(7) also includes "Other forested lands that maintain soil, air, water
and fish and wildlife resources." It appears the county has opted to address this portion
of the definition by requiring that land is only eligible for nonprime resource designation if
it does not contain Goal 5 resources. The county may want to consider additional data
sources (e.g. ODFW data) where Goal 5 inventories have not been recently updated.
DLCD is more than willing to facilitate the acquisition of data from state agencies upon
request.
2. Policies 3.11.13 and 14. State rule does not provide an opportunity to designate lands
as nonresource if the land meets the agricultural capability class or forest productivity
thresholds in the state's "agricultural lands" and "forest lands" definitions. A Goal 3 or 4
exception, rather than nonprime resource land designation, appears to be required to
designate these lands for low intensity rural development. Dwelling opportunities allowed
under current zoning (e.g. nonfarm dwellings, template dwellings) may also be an option.
DLCD is available to assist the county in exploring options.
Conclusion
We request that the county consider the comments above and amend the proposal accordingly
for consistency with the Statewide Planning Goals and rules. Please enter this letter into the
record of these proceedings and provide DLCD with a copy of any further amendments and the
decision.
Thank you again for the opportunity to comment. We do apologize for not providing these
comments sooner. Please let us know if you have any questions.
Respectfully,
Tim Murphy, Farm and Forest Lands Specialist
503-934-0048 / timothy.murphy@state.or.us
Cc: Zechariah Heck, Associate Planner
Scott Edelman
Jon Jinings
-TES
2�
{ Board of Countv Commissioners
P.O. Box 6005 •Bend, OR 97708-6005
1300 NW Wall St, Suite 206 • Bend, OR 97701-1960
(541) 386-6570 • Fax (541) 385-3202
May 6 2015 www.deschutes.org
y, board@deschutes.org
Tammy Ganey
Anthony De6one
Mr. Jim Rue, Director Alan Unger
Oregon Department of Land Conservation and Development
635 Capitol St, NE, Suite 150
Salem, OR 97301
Re: HB 2229 / LCDC Rulemaking
Dear Mr. Rue:
Thank you for visiting Deschutes County on April 17, 2015 to discuss among other items, non -
resource lands and the challenges with implementing House Bill (HB) 2229. The Board of
County Commissioners, following a recommendation from the Planning Commission,
respectfully request the Land Conversation and Development Commission (LCDC) initiate
rulemaking to implement the legislation and clarify processes for:
1. Updating farmlands and forestlands for land use planning;
2. Phasing;
3. Regional approaches to resolving land use problems;
4. Non -resource lands containing ecologically significant natural areas or resources;
5. Carrying capacity of the lands; and,
6. Significantly adverse effects.
I1B 2229, Section 2(b)(B) directs LCDC to adopt rules that,
Consider the variation in conditions and needs in different regions of the state and
encourage regional approaches to resolving land use problems.
Since the law took effect, Deschutes County has continually expressed interest in implementing
IlB 2229, also known as the "Big Look Bill," as evidenced by its participation in a 2010
Association of Counties panel discussion with state agency officials and subsequent
conversations with the Department of Land Conservation and Development (DLCD). Most
recently, Deschutes County requested input on a phased approach and clarification of key issues
relating to five pre -platted subdivisions with farm and forestland designations. Rob Hallyburton,
DLCD Community Services Division Manager wrote in a letter on January 8, 2015;
Enhancing the Lives of Citizens by Delivering Quality Services in. a Cost-F_ffective Manner
While we do not find that the county must review all land in the county, we would be
most inclined to approve a work program that includes some major region defined by
geographic characteristics rather than by property or subdivision boundaries.
Additionally, the county may nor pre -determine speck areas for review, as subsection
5(3) requires the county to provide an opportunity for all farm and forest land to be
considered. If the county receives a request to review an area that is not included in the
original proposal, the county must review it. As explained above, we believe that this
area must be a geographic area of the county and not individual properties or
subdivisions.
Considering other aspects of HB 2229 not related to your question, the department has
been unable to determine the nature and scope of the mapping error the county intends
to address. It is not apparent why the areas the county has shared with the department
were incorrectly zoned at acknowledgment, and this is a fundamental aspect of the bill.
If the county chooses to move forward with a work program, the county will need to
demonstrate that the HB 2229 process is an appropriate vehicle for addressing the
county's needs.
Based on Mr. Hallyburton's letter, there remain differences of opinion whether HB 2229
is targeted exclusively to properties with mapping errors or if it also applies to updating
farm and forestland designations based on changed circumstances. Without
administrative rules, undertaking a work plan is fraught with legal uncertainty. It is also
extremely difficult to gauge staffing resources and timelines.
Lastly, we respectfully request Deschutes County be provided the opportunity to
participate on the Rules Advisory Committee. Thank you for considering this request.
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
atoydl "-
Anthony DeBone, Chair
OJ4..- ��
Alan Unger, Commissioner
Tammy Baney, Co issioner
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
FILE NUMBERS:
247-18-000545-CU/546-SP/811-MA / 247-19-000141 -A
APPLICANT/:
H2D2 Properties, LLC
OWNER:
Mike Hayes & William Davis
APPLICANTS
Stephanie Marshall'
ATTORNEY:
Clifton Cannabis Law LLC
APPELLANTS:
Joel & Julia Gisler
J's 4 LLC
APPELLANTS'
Joe Willis
ATTORNEYS:
Schwabe Williamson & Wyatt
Myles Conway
Marten Law
STAFF REVIEWER:
Matthew` Martin, Associate Planner
LOCATION: The subject property has an assigned address of 19855 8th St,
Bend and is identified on County Assessor Tax Map 16-12-31 D,
as Tax Lot 302.
HEARINGS OFFICER'S
DECISION ISSUED:
APPEAL FILED:
HEARING DATE:
RECORD CLOSED:
January 29, 2019
February 7, 2019
March 13, 2019
April 17, 2019
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA/ 247-19-000141 -A Page 1 of 11
I. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considered the Appellants' appeal of
the January 29, 2019, hearings officer's findings and decision. (file nos. 247-18-000545-CU/546-
SP/811-MA; "Hearings Officer's Decision"). The Board exercised its discretion to hear the appeal de
novo.
The Board received four memoranda from Matt Martin, Associate Planner. The following lists the
memoranda by date:
• February 8, 2019 Work Session: Staff memo with Record, including notice of appeal,
presented in print fUrm.
• February 25, 2019 Business Meeting (cancelled): Staff memo with notice of appeal.
• March 4, 2019 Work Session: Staff memo (dated March 6, 219)
• March 13, 2019 Wednesday Morning Meeting: Staff memo with record submittals since
submittal of the 2/25/19 meeting materials.
• June 5, 2019 Wednesday Morning Meeting: Summary of the testimony and materials
received prior to the public hearing, materials received prior to the close of the post hearing
open record period, and a decision matrix.
The Board conducted a public hearing on March 13, 2019, and deliberated on June 6, 2019. The
Board voted 2-1 (Henderson and Adair in favor; DeBone opposed) to overturn the Hearings Officer's
Decision approvingthe land use permitto establish marijuana retail (file no. 247-18-000545-CU/546-
SP/811-MA) on the subject property. The Board found that the Applicant failed to demonstrate the
marijuana retail met the requirements of Deschutes County Code ("DCC") 18.67.040, 18.116.030,
18.124.060, 18.128.015.
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18, Deschutes Countv Zoninz Ordinance
Chapter 18.56. Surface Mining Impact Area
Chapter 18.67. Tumalo RuralCommunity Zoning Districts
Chapter 18.116. Supplementary Provisions
Chapter 18.124. Site Plan Review
Chapter 18.128. Conditional Uses
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 the January 29, 2019, Hearings Officer's Decision in Section I (Basic
Board of County Commissioners Decision, Document No. 2019-481
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Findings), subsections A (Preliminary Findings), B (Location), C (Zoning), D (Lot of Record), E (Site
Description), E (Proposal), G (Surrounding Land Use) H (Public Agency Comments), I (Public
Comments), J (Land Use History), with the following additions and changes:
A. PRELIMINARY FINDINGS: With the exception of section 3, below, the Board adopts the
Hearing Officer's preliminary findings.
3. Access (The Easement): A significant and persistent issue concerns a 2002 access
easement granted by the Appellants to the Applicant's predecessor in interest (the
"Easement"). Although the subject property fronts Highway 20, the Applicant
proposes to use this Easement for access from 8th Street to the proposed marijuana
retail dispensary. The parties contested numerous aspects of the Easement both
before the Hearings Officer and again before this Board.
The Board incorporates by reference the Hearings Officer's finding under this section.
The Board concurs, "... that, in general, a hearings officer or other land use decision
maker is not legally authorized to engage in dispute resolution concerning the intent
of the parties to an easement or attempt to interpret the meaning of terms or
conditions contained within an easement." The Board also concurs that,
"...interpretation of the legal meaning of provisions contained in The Easement is a
private civil matter to be resolved by a court of competent jurisdiction." Accordingly,
the Board declines to attempt to resolve the dispute between the parties or interpret
the Easement.
As discussed below, DCC 18.116.030(F)(5) and 18.128.015(A)(2) requires the applicant
to demonstrate "adequacy of transportation access to the site". The access driveway
does not presently meet the required improved surface width of 24 feet. The Hearings
Officer's Decision required widening of the drive aisle to 24 feet as a condition of
approval. However, before this Board, the Appellants noted that they will oppose any
attempt to widen the drive aisle.
The necessity of addressing access concerns has been and clearly remains a condition
precedent to developing the subject property. The Board takes note that that this is
not the first instance whereby the width of the drive aisle has been a problem. The
record shows that the Applicant's predecessor in interest was also required to widen
the drive aisle to 24 feet to support the existing food cart development located on the
subject property. That widening never occurred, likely in part because of objections
from the Appellants. Those objections are understandable considering that only a
single family residence was located on the subject property at the time the Easement
was granted.
Mindful of this past history and still -present Easement dispute, the Board rejects the
Hearings Officer's elective approach to condition approval on widening the drive aisle
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to 24 -feet. The Land Use Board of Appeals ("LUBA") in J. Conser and Sons, LLC v. City of
Millersburg, 73 Or LBA 576 (2016) provides guidance on this issue:
"Since Fasano v. Board of County Commissioners of Washington Co., 264 Or 574,
507 F2d 23 (1973), applicants in quasi-judicial land use proceedings have had
the burden of demonstrating that a proposal complies with relevant approval
criteria. That burden includes proposing any conditions of approval that might
be necessary to make a proposal comply with those approval criteria. While it
is not unusual for local governments to develop and impose conditions of
approval that the local governments believe are necessary to allow the local
governments to approve a proposal that would otherwise have to be denied,
local governments do not have an obligation to do so, and have no obligation
to adopt findings that explain why they cannot develop such conditions of
approval for an applicant."
Based on the foregoing LUBA decision and the substantial evidence in the record, the
Board finds that the Applicant failed to propose suitable conditions of approval to
ensure that the Easement issues will be resolved or that otherwise ensures the
feasibility of expanding the drive aisle to 24 feet. Although it is not the Board's
obligation to explain why we do not develop requisite conditions ourselves, the Board
nonetheless cites the following factors as persuasive.
First, the Board notes paragraph 5 of the Easement which specifically calls -out that
"in case of conflict," the Appellant's "right of use shall be dominant." And, the Board
also notes the seemingly opposing obligations in the Easement's paragraph 6
whereby both the Applicant and the Appellant must "jointly and equally participate in
any costs to install, maintain or repair improvements on the easement parcel," but
"[e]ither party may initiate" said installation. When it comes to the Applicant's legal
right to widen the drive aisle to 24 feet despite the Appellants' objections, it appears
that the Easement's provision are at best ambiguous, and require either judicial
scrutiny or some alternative resolution agreed to by both parties. Numerous
statements in the record from both the Applicant and the Appellant reinforce this
foreboding assumption that the parties may elect to litigate this matter.
Second, the Board notes that a conditional approval does not last indefinitely. DCC
22.36.01 OR establishes a two-year deadline to satisfy all conditions and initiate an
otherwise approved use. Although DCC 22.36.010(C) contemplates circumstances
whereby limited extension may be approved, those extension are not guaranteed nor
indefinite. Considering the likelihood of litigation, these timing concerns make
conditional approval imprudent. Further, any resulting judicial order or settlement
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decree concerning the Easement may change the access parameters to the subject
property, thus requiring per DCC 22.36.040 a discretionary land use action to modify
the conditional approval.
Third, and arguably most important, if a judicial order or some other settlement
resolves the Easement dispute in a manner that allows the drive aisle to be widened
to 24 feet, DCC 22.28.040(A) allows the Applicant to reapply.
K. REVIEW PERIOD: The application was submitted on July 5, 2018. Because the application
was missing essential information, staff mailed the Applicant a letter on August 3, 2018,
notifying them that their application was incomplete and requested the necessary items.
On August 3, 2018, the Applicant submitted a modification of application. The modification
of application restarted the 30 -day completeness review time period and the 150 -day review
time period. The application was deemed complete on November 3, 2018. Based on this
information, the 150th day upon which the county must issue a final local decision would
have been April 2, 2019. As noted in the Hearings Officers Decision, the Hearings Officer
granted Applicant's request and issued a Hearings Officer Order Extending Written Record.
At the public hearing before the Board, the Applicant agreed to extend the review time
period during the post hearing open written record period. Therefore, the 150th day on
which the County must take final action on this, application is June 20, 2019.
L. PROCEDURAL HISTORY: The Hearings Officer's Decision was issued on January 29, 2019. An
appeal was timely filed by the Appellants during the 12 -day appeal period on February 7,
2019. The Board used their discretion to serve as the hearings body for the Appellants'
appeal to be heard de novo pursuant to Board Order 2019-008, dated February 8, 2019.
A public hearing was held on March 13, 2019. The Appellants, Joel & Julia Gisler of J's 4 LLC,
were represented by Joe Willis and Myles Conway, Attorneys at Law. The Applicant, H2D2
Properties LLC, was represented by Stephanie Marshall, Attorney at Law. The Board heard
testimony and established an open record period that closed on April 17, 2019.
The Board conducted deliberations on June 5, 2019. Via a 2-1 vote, the Board finds the
proposal did not comply with the applicable criteria of DCC 18.67.040, 18.116.030,
18.124.060, 18.128.015, detailed below. For this reason, the Board overturns the Hearings
Officer's Decision approving the application.
IV. FINDINGS:
Board of County Commissioners Decision, Document No. 2019-481
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Title 18 - DESCHUTES COUNTY CODE, COUNTY ZONING
The Board aI'i (l Ylt� and Irl /'/1 rr�n r?tAc hl/ reference the /'ode int!n_-rntations findings
of f -,r-+ and
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conclusions of law set forth in the January 29, 2019, Hearings Officer's Decision in the Findings
section, except for the findings relating to the DCC Sections identified below. To the extent there
are conflicts between any of the findings identified above and the findings below, the findings and
conclusions below shall control.
Chapter 18.67. Tumalo Rural Community Zoning Districts
Section 18.67.040. Commercial (TuC) District.
—._. _
i ne i umaio Commercial District is intended to allow a range of limited commercial and
industrial uses to serve the community and surrounding area.
FINDING: The modification of application materials submitted September 28, 2019, indicate "The
primary purpose of the site is delivery service. The site will be used for delivery service to the
[C]ounty." The Applicant's testimony at the public hearing on March 13, 2019, further stated the
purpose of the application is to service cannabis to "all parts of the County" through delivery.
The Board interprets this provision to preclude commercial and industrial uses in the TuC District
that do not primarily serve the community and surrounding area. The Board finds "the community
and surrounding area" is undefined in County Code. As such, the Board interprets "the community
and surrounding area"to describe an area encompassing the Urban Unincorporated Community of
Tumalo and those areas in close proximity to Tumalo and not the entirety of Deschutes County.
In the alternative, the Board recognizes that the "surrounding rural area", defined in DCC
18.67.040(E)(3) is, while oddly placed in the section, applicable to all uses permitted in DCC
18.67.040.
Therefore, the Board finds that ,proposed business is not intended to primarily serve "the
community and surrounding area" nor the "surrounding rural area" described in DCC
18 67 040(E)(3). The Board has discretion to adopt conditions of approval to comply with a criterion.
The Board declines to adopt a condition of approval and the application is denied on this basis.
Chapter 18.116. Supplementary Provisions
Section 18.116.030. Off-street Parking and Loading.
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:
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5. Access aisles shall be of sufficient width for all vehicular turning and
maneuvering.
FINDING: Table 1, Off -Street Parking Lot Design, of this chapter requires a 24 -foot -wide access aisle
for both one-way and two-way traffic when adjacent to 90 -degree parking stalls. The access
driveway from 8t" Street is proposed to accommodate two-way traffic, thereby requiring a drive aisle
that is 24 -feet wide. As shown on the Site Plan, this driveway is undersized, at approximately 20
feet wide.
The Board incorporates by reference the findings made under Basic Findings (3)(A) herein. As
described above, the Board finds that the Applicant failed to propose suitable conditions of approval
to ensure that the Easement issues will be resolved or that otherwise ensures the feasibility of
expanding the drive aisle to 24 feet. The application is denied on this basis.
6. Service drives to off-street parking areas shall be designed and constructed
to facilitate the flow of traffic, provide maximum safety of traffic access and
egress and maximum safety of pedestrians and vehicular traffic on the site.
The number of service drives shall be limited to the minimum that will
accommodate and serve the traffic anticipated. Service drives shall be
clearly and permanently marked and defined through the use of rails, fences,
walls or other barriers or markers. Service drives to drive in establishments
shall be designed to avoid backing movements or other maneuvering within
a street other than an alley.
FINDING: The Board finds that that an improved 24 -foot -wide service drive is necessary to facilitate
the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of
pedestrians and vehicular traffic on the site. The service drive is not presently improved to this
width and, as discussed above, any such improvement could only occur in the Easement area.
The Board incorporates by reference the findings made under Basic Findings (3)(A) herein. As
described above, the Board finds that the Applicant failed to propose suitable conditions of approval
to ensure that the Easement issues will be resolved or that otherwise ensures the feasibility of
expanding the service drive to 24 feet. The application is denied on this basis.
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.
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FINDING: The Board has previously interpreted this criterion to require the proposed development
to relate harmoniously to the natural environment and existing development, both on and off-site.
In his decision, the Hearings Off.., ..e.r r.aJ.n..,trd this innterpretQtion. The Board disagrees
isCgIeeJ VVith the
Hearings Officer and again interprets this provision to require the development to relate
harmoniously to on and off-site development.
In Evolution Concepts [247 -17 -000172 -AD, 247 -17 -000173 -SP, 247 -17 -000180 -AD (247-17-000803-A)],
the Board found:
Specifically, the Board finds that the application for the processing facility does not relate
harmoniously to existing development in the area. The record demonstrates that this area
is adjacent to the Urban Reserve Boundary of the City of Redmond. It is an area that one
coma reasonably anticipate, in the future, to be included within the urban area as residential
neighborhoods. The properties around this facility are generally small, rural residential
acreages. None of these small agricultural operations, nor the existing residential
development to the east of the subject property, has any similarphysical characteristics to
the site plan submitted by the applicant for a processing facility. For example, the
surrounding developments do not have significant HVAC systems to the same extent as the
proposed facility, nor do they generate the same significant traffic. The cumulative effect of
this site plan in terms of traffic, access to Highway 126, and the characteristics of the building,
differentiate it from other facilities nearby. ,Collectively these attributes lead the Board to
find that this processing facility will not relate harmoniously to the existing development in
the area.
In Father's House (247 -18 -000061 -CU, 247 -18 -000062 -SP, 247-18-000624-A, 247-18-000643-A) the
Board interpreted this criterion as follows:
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(B). The chief differences between the two standards is that the DCC
18.128.015(6) 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.
Opponents object to the proposal, arguing that the proposed development is disharmonious with
surrounding off-site development. In particular, the Appellant objects to both the use of the
Easement to access the proposed use on the subject property and the widening of the drive aisle
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within the Easement. Objections also include impacts on nearby commercial uses citing additional
traffic in the vicinity and concern with perceived association of nearby uses with the proposed
marijuana retail use. Lastly, there is concern for potential impact on the family oriented activities
on public lands and trails that are in relatively close proximity to the subject property.
Based on substantial evidence in the record, the Board finds these considerable objections call into
question that the proposed development relates harmoniously with existing development in the
surrounding area and the Board finds that the Applicant has failed to adequately address these
objections and meet the burden of proof the proposal complies with this standard as interpreted
by the Board. The Board denies on this basis.
E. The location and number of points of access to the site, interior circulation patterns,
separations between pedestrians and moving and -parked vehicles, and the
arrangement of parking areas in relation to buildings and structures shall be
harmonious with proposed and neighboring buildings and structures.
FINDING: The proposed development includes use of an existing single driveway from 8th Street
with a one-way drive aisles that loop around the building. The Board finds that the existing,
undersized access drive is not harmonious with proposed and neighboring buildings and structures.
The Board incorporates by reference the findings made under Basic Findings (3)(A) herein. As
described above, the Board finds that the Applicant failed to proposesuitable conditions of approval
to ensure that the Easement issues will be resolved or that otherwise ensures the feasibility of
expanding the drive aisle to 24 feet. The application is denied on this basis.
Chapter 18.128. Conditional Uses
A. The site under consideration shall be determined to be suitable for the proposed
use based on the following factors:
1. Site, design and operating characteristics of the use,
FINDING: The Board incorporates by reference the findings made under Basic Findings (3)(A)
herein. The Board finds that, without an adequately sized access drive, the subject property is not a
suitable location for the proposed business. In addition, the Board has found, under DCC 18.67.040,
that the subject property is not zoned for the proposed delivery service. As such, the site is not
suitable given the proposed operating characteristics of the proposed use. The application is denied
under this criterion for these reasons. The Board also notes the planned improvements to the
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intersection of Highway 20/Cook Avenue pose an uncertain and potentially significant impact on the
site development and operating characteristics.
1. Adequacy of transportation access to the site; and
FINDING: The Board incorporates by reference the findings made under Basic Findings (3)(A)
herein. The Board finds that, without an adequately sized access drive, the subject property does
not have adequate transportation access to the site. The Board denies on this basis.
B. The proposed use shall be compatible with existing and projected uses on
surrounding properties based on the factors listed in DCC 18.12& 015(A).
FINDING: The record contains substantial evidence that the proposed use would significantly
adversely impact operating characteristics of surrounding commercial, residential, and recreational
uses and is not compatible with those existing and projected uses. Gisler, in his November 29, 2018,
written submission and his Hearing testimony, asserted that the proposed retail marijuana
dispensary would not be compatible with surrounding uses. Gisler stated that:
"Negative impacts on adjoining properties as a result of marijuana use. Recently I have had
inquiries from prospective tenants who are fleeing from the smells and disruptions of marijuana
businesses have caused them. Compatibility to a community is a function of what types of
businesses the citizens of that community want to see in their community. There are no
ordinances that can address this criteria. The only gauge the hearings officer can use is the
comments from the community itself. In this case opposition is overwhelming and application
should be denied."
The Board concurs and also notes opponent concerns regarding impacts on nearby commercial
uses and the use's relative proximity to public lands and trails. The Board finds that the proposed
use would significantly adversely impact operating characteristics of surrounding commercial,
residential, and recreational uses and is not compatible with those existing and projected uses. The
Board denies on this basis.
With regard to adequacy of transportation access to projected uses on surrounding properties, the
Board finds that, without an adequately sized access drive, the subject property is likely to cause
off-site traffic impacts. This is because as the access drive is of insufficient width to accommodate
two-way vehicle, bicycle, and pedestrian traffic. Congestion of the drive will adversely impact traffic
safety and traffic flow on 8t" Street. The Board finds that does not have adequate transportation
access to the site. The Board finds that the proposed use will not be compatible with existing and
projected uses on surrounding properties with regard to adequacy of transportation access. The
Board denies on this basis. The Board also notes opponent concerns regarding potential impacts
associated with the planned road improvement project at the intersection of Highway 20/Cook Ave
under this criterion.
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V. DECISION:
Based on the findings of fact and conclusions of law set out above, by a vote of 2-1 the Board hereby
DENIES the Applicant's proposed marijuana retail application and reverses on appeal the January
29, 2019, Hearings Officer's Decision (file no. 247-18-000545-CU/546-SP/811-MA), which approved
the application.
Dated this day of June, 2019.
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Philip G. Henderson, Chair
Patti Adair, Vice Chair
Anthony DeBone, 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.
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