2019-319-Minutes for Meeting June 14,2019 Recorded 7/23/2019iES
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2019-319
Nancy Blankenship, County Clerk
Commissioners' Journal 07/23/2019 8:20:31 AM
0
1211111111111111111111111111111
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:00 AM
FRIDAY, June 14, 2019 ALLEN CONFERENCE ROOM
Present were Commissioners Phil Henderson, Patti Adair, and Anthony DeBone. Also present were Tom
Anderson, County Administrator; Erik Kropp, Deputy County Administrator; Adam Smith, Assistant
County Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and no identified
representatives of the media were in attendance.
CALL TO ORDER: Chair Henderson called the meeting to order at 9:04 a.m.
This is the continuation of the BOCC meeting of Wednesday, June 12, 2019. This meeting
was audio recorded.
ACTION ITEMS
1. Further Deliberations for the H2D2 Production LLC Marijuana Retail
Application
Commissioner Henderson introduced the proceedings. Matt Martin,
Community Development Department presented the Findings document as
revised per direction from Commissioners Henderson and Adair. The Board
reviewed the revised document and Commissioner Henderson offered
additional language changes. Commissioner Henderson expressed concerns
of just accepting the findings of the hearing's officer and requested
BOCC MEETING
JUNE 14, 2019 PAGE 1 OF 2
additional time in which to review the hearing's officer decision. This item
will be continued to the BOCC meeting scheduled for Monday, June 17, 2019.
2. Continued Public Hearing: CDD 2018 Annual Report and Draft Fiscal Year
2019-20 Work Plan
This item was to be continued today but will be included on the Monday,
June 24, 2019 BOCC meeting agenda.
EXECUTIVE SESSION:
At the time of 10:35 a.m., the Board went into Executive Session under ORS 192.660
(2) (d) Labor Negotiations. The Board came out of Executive Session at 11:09 a.m.
to direct staff as proceed as discussed.
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 11:09 a.m.
DATED this Day of
Commissioners.
RECORDING SECRETARY
BOCC MEETING
2019 for the Deschutes County Board of
PATTI ADAIR, VICE CHAIR
ANTHONY DEBONE, COMMISSIONER
JUNE 14, 2019 PAGE 2 OF 2
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
9:00 AM, FRIDAY, JUNE 14, 2019
Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend
CALL TO ORDER
ACTION ITEMS
1. Further Deliberations for the H2D2 Production LCC Marijuana Retail Application
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.
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
Friday, June 14, 2019 Page 1 of 1
Please return to BOCC Secretary.
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REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
FILE NUMBERS:
APPLICANT/:
OWNER:
APPLICANTS
ATTORNEY:
247-18-000545-CU/546-SP/811-MA / 247-19-000141-A
H2D2 Properties, LLC
Mike Hayes & William Davis
Stephanie Marshall
Clifton Cannabis Law LLC
APPELLANTS: Joel & Julia Gisler`'
J's 4 LLC
APPELLANTS'
ATTORNEYS:
Joe Willis
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 16-12-31D,
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 12
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 form.
• 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 approving the land use permit to 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 County Zoning Ordinance
Chapter 18.56. Surface Mining Impact Area
Chapter 18.67. T umaio Rural Community 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
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA/ 247-19-000141-A Page 2 of 12
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
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, the Board's site plan review pursuant to DCC Chapter 18.124 and
conditional use review pursuant to DCC 18.120.015 invoked general concerns about
the access issues and the Easement's adequacy. More specifically, 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 conditioned approval on widening the drive aisle to 24 feet. However, before
this Board, the Appellants noted that they will oppose any attempt to widen the drive
aisle.
Regardless of the type of development proposed, access issues clearly are a condition
precedent to developing the subject property. The Board takes note 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
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A Page 3 of 12
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 ggrantedl.
Mindful of this past history and the still -present Easement dispute, the Board rejects
the Hearings Officer's elective approach to condition approval on widening the drive
aisle to 24 -feet. The Land Use Board of Appeals ("LUBA") in J. Conser and Sons, LLC v.
City of Millersburg, 73 Or LUBA 576 (2016) provides guidance on this issue:
"Since Fasano v. Board of County Commissioners of Washington Co., 264 Or
574, 507 P2d 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 faller) to propose s Iitable conditions of apprnvial to
ensure that all Easement issues will be resolved or that otherwise ensures the
feasibility of expanding the drive aisle to 24 feet. Although LUBA made clear that the
Board is not obliged to explain its rationale for not undertaking the arduous task of
developing conditions of approval that realistically would ensure that the Applicant
and the Appellants conclusively settle their Easement dispute, 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 Appellants' "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 Appellants must "jointly and equally participate
in any costs to install, maintain or repair improvements on the easement parcel," but
"[Other party may initiate" said installation. Any condition of approval adopted by
this Board would only apply to the Applicant; the Board's land use authority does not
extend to the Appellants to thereby compel the Appellants to take any action or
otherwise participate in the resolution of the Easement dispute. 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 likely
require either judicial scrutiny or some alternative resolution agreed to by both
parties. Numerous statements in the record from both the Applicant and the
Appellants reinforce this foreboding assumption that subsequent litigation is likely.
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A Page 4 of 12
Second, the Board notes that a conditional approval does not last indefinitely. DCC
22.36.010(B) establishes a two-year deadline to satisfy all conditions and initiate an
otherwise approved use. Although DCC 22.36.010(C) contemplates circumstances
justifying limited extensions, those extensions are not guaranteed nor indefinite.
Considering the likelihood of litigation, these timing concerns make conditional
approval imprudent. Further, any resulting judicial order or settlement decree
concerning the Easement may change the access parameters to the subject property,
thus requiring a discretionary land use action to modify the conditional approval per
DCC 22.36.040.
Third, and arguably most important, if a judicial order or some other settlement
resolves the Easement dispute, 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.
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-5P/811-MA / 247-19-000141-A Page 5 of 12
IV. FINDINGS:
TWA 1R - DESf HI ITES COUNTY CODE COUNTY ZONING
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 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.
The Tumalo Commercial District is intended to allow a range of limited commercial and
industrial uses to serve the community and surrounding area.
FINDING: Although the above -quoted preamble statement of DCC 18.67.040 clarifies that the
purpose of the TuC District is to allow commercial and industrial uses that specifically "serve the
community and surrounding area," the modification of application materials submitted by the
Applicant on September 28, 2019, instead indicate "The primary purpose of the site is delivery
service. The site will be used for delivery service to the county." The Applicant's testimony at the
public hearing on March 1R, 2019_ further stated the purpose of the application is to service
cannabis to "all parts of the [c]ounty" through delivery. The subject application thereby raises the
issue of whether county -wide delivery is consistent with the "surrounding area" limitation imposed
by DCC 18.67.040's preamble statement.
The Board is not aware of a "surrounding area" definition codified in the DCC. That Board must
thereby interpret that term. In so doing, the Board notes that Subpart E to DCC 18.67.040, entitled
"Requirements for Large Scale Uses," includes the following definition of the similar term
"surrounding rural area:"
For purposes of DCC 18.67.040, the surrounding rural area is described as the following:
extending north to the Township boundary between Townships 15 and 16; extending
west to the boundary of the public lands managed by the U.S. Forest Service in T162 -
R11 E; extending south to the south section lines of T17S-R12E sections 4,5,6, and T17S-
R11 E sections 1,2,3; and extending east to Highway 97.
As understood by the Board, the Applicant argues that the entirety of Subpart E to DCC 18.67.040,
including the aforementioned definition of "surrounding rural area," does not apply to the subject
application because it is not a "Large Scale Use." The Board agrees that the application is not a Large
Scale Use, but nevertheless notes that the definition's initial phrase - "For purposes of DCC
18.67.040" ® intentionally references the entirety of the DCC 18.67.040 and not just Subpart E. As
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A Page 6 of 12
such, the Board finds that the definition of "surrounding rural area" applies to all uses regulated by
DCC 18.67.040 and not just "Large Scale Uses" regulated by Subpart E.
Having clarified that the term "surrounding rural area" applies to the entirety of DCC 18.67.040, the
Board further interprets that term to be synonymous with the term "surrounding area" as used in
the preamble statement of DCC 18.67.040. As such, the Board finds that DCC 18.67.040 precludes
commercial and industrial uses located in the TuC District from delivering goods and services
outside the geographical area set forth in the DCC 18.67.040(E)(3).
To the extent that aforementioned interpretations and findings are deemed implausible, the Board
alternatively finds that the TuC District's "surrounding area" clearly does not extend to the entirety
of Deschutes County. Interpreting the preamble statement of DCC 18.67.040 to allow deliveries
county -wide omits the limitation imposed by the phrase "to serve the community and surrounding
area" and thereby ignores the codified tenant of statutory interpretation that all words and terms
must be given due consideration. See ORS 174.010 ("In the construction of a statute, the office of
the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not
to insert what has been omitted, or to omit was has been inserted; and where there are several
provisions or particulars such construction is, if possible, to be adopted as will give effect to all.")
Therefore, under either aforementioned findings and because the Applicant proposed to deliver
goods and services county -wide, the Board further finds that the Applicant's proposed business is
not intended to primarily serve the TuC District "community and surrounding area" as required by
the preamble statement to DCC 18.67.040. As previously noted (see discussion in Basic Findings
(3)(A) above), the Board has discretion to adopt conditions of approval to comply with a criterion.
Because the subject application must be denied on other grounds as well, the Board declines to
adopt a condition of approval and the application is also 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:
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 8th 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.
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A Page 7 of 12
The Board incorporates by reference the findings made under Basic Findings (3)(A)
A/ herein. As
described above, the Board finds that the Applicant failed to propose suitable conditions of approval
to ensure that all Easement issues will be resolved nr 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 all 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.
FINDING: The Board has previously interpreted this criterion to require proposed developments to
relate harmoniously to the natural environment and existing development, both on and off-site. In
his decision, the Hearings Officer inappropriately rejected the Board's past interpretation. The
Board thereby cites our past decisions wherein the Board set forth that site plan review requires a
proposed development to relate harmoniously to other on and off-site developments.
In Evolution Concepts [247 -17 -000172 -AD, 247 -17 -000173 -SP, 247 -17 -000180 -AD (247-17-000803-A)],
the Board considered off-site developments and stated the following:
Board of (-minty Commissioners Decision Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A
Page 8 of 12
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
could 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 similar physical 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 further interpreted this criterion as it relates to the similar "compatibility" standard imposed
by the County's conditional use criteria codified at DCC 18.128.015 (discussed below):
The Board agrees that DCC 18.124060(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..."
These considerable objections call into question that the proposed development relates
harmoniously with existing development in the surrounding area. Based on substantial evidence
in the record, the Board finds that the Applicant failed to meet his burden of adequately addressing
these objections to thereby demonstrate that the proposal complies with this standard. The
application is denied 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 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.
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA/ 247-19-000141-A Page 9 of 12
The Board incorporates by reference the findings made under Basic Findings (3)(A) and the findings
relating to the access issues in the preceding section relevant to DCC 18.124.060(A). As described
above. the Rnard finds that the Applirantfailerl to proposes iitahle conditions of approval to ensure
that all 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
Section 18.128.015. General Standards Governing 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) and
the above findings relating to the access issues relevant to DCC 18.124.060(A). The Board finds that
due to the aforementioned Easement uncertainty and the inadequately 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 Rnard also notes the
planned improvements to the intersection of Highway 20/Cook Avenue pose an uncertain and
potentially significant impact on the site development and operating characteristics.
Adequacy of transportation access to the site; and
FINDING: The Board incorporates by reference the findings made under Basic Findings (3)(A) and
the above findings relating to the access issues relevant to DCC 18.124.060(A). The Board finds that
due to the aforementioned Easement uncertainty and the inadequately 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 18.128.015(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. The Appellants, in their
November 29, 2018, written submission and Hearing testimony, asserted that the proposed retail
marijuana dispensary would not be compatible with surrounding uses:
Rnarri n "-n.,nAy-Commissioners Decision, Do L41 e * i'ZV. GVTT 7 'Y0 1
File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A Page 10 of 12
"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 notes that other record submittals also cite concerns including the close proximity of the
proposed use to a state scenic bikeway, public lands, and trails; traffic impacts on already dangerous
intersection of Highway 20/Cook Avenue; planned improvements to the intersection of Highway
20/Cook Avenue; concentration of businesses that sell intoxicants in the vicinity; effects on the
livability of community; and that the use is inconsistent with community values. These numerous
objections call into question that the proposed development is compatible with existing and
projected uses on surrounding properties. Based on substantial evidence in the record, the Board
finds that the Applicant failed to meet his burden of adequately addressing these objections to
thereby demonstrate that the proposal complies with this standard. The Board thereby 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 further 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 8th Street. As such, 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 application is denied on this basis.
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.
Board of County Commissioners Decision, Document No. 2019-481
File Nos. 247-18-000545-CU/546-SP/811-MA/247-19-000141-A Page 11 of 12
Dated this day ot;une, 2019.
BOARD nF COUNTY CnMMISSlnNERS
LI\J
FOR DESCHUTES COUNTY
Philip G. Henderson, Chair
Patti Adair, Vice Chair
Anthony DeBone, Commissioner
THIS DECISION BECOMES ANAL 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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File
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File Nos. 247-18-000545-CU/546-SP/811-MA / 247-19-000141-A Page 12 of 12