2019-367-Minutes for Meeting June 24,2019 Recorded 8/13/2019USES
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2019-367
Nancy Blankenship, County Clerk
Commissioners' Journal 08/13/2019 3:34:47 PM
1211011111111111111111 III III
FOR RECORDING STAMP ONLY
BOCC MONDAY MEETING MINUTES
2:00 PM
MONDAY, Jun 24, 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; David Doyle, County Counsel;
and Laura Skundrick, Board Administrative Assistant. One citizen and no representatives of the media
were in attendance.
CALL TO ORDER: Chair Henderson called the meeting to order at 1:01 p.m.
ACTION ITEMS
1. Public Health Advisory Board Overview and Priorities
Mr. Kuhn introduced the leaders of the Public Health Advisory Board (PHAB),
Chair Keith Winsor and Vice Chair Rebeckah Berry. He also explained there
will be a member appointment coming soon for Jason Jundt. Chair
Henderson noted he would like to see representation from the private sector
and general public. Mr. Kuhn stated they are always open to new members
and encouraged Board recommendations. Mr. Winsor stated it's been a
struggle to find consistent representation from Sisters and La Pine. Mr.
Winsor presented the proposed PHAB priorities as outlined in the
attachment and asked for feedback from the Commissioners. Top priorities
include immunizations, homelessness, and air quality for a healthy
environment. Ms. Saraceno stated the goal of providing this list is to
BOCC MONDAY MEETING
JUNE 24, 2019 PAGE 1 OF 6
strengthen the connection between the BOCC and the PHAB, and help to
advocate for the Commissioner's goals. Chair Henderson stated his concern
that the PHAB is involved in many public health issues but the Deschutes
County Public Health department may not be involved in all of them. If the
Board is meant as an advisory role to Commissioners or the Public Health
department, then PHAB should work within those bounds. Chair Henderson
noted he would like to attend a future PHAB meeting.
Ms. Saraceno provided a handout regarding health equity and the social
determinants, and the process behind determining those priorities and
including them in the Deschutes County Health Services strategic plan. Chair
Henderson stated that addressing health inequities is a huge undertaking
and that isn't what is outlined in the Public Health budget, and we can't be
everything everywhere. Mr. Winsor stated that PHAB is here to serve the
Board of Commissioners, so continuing the dialogue and pulling back in
certain areas, that can be done. Ms. Berry inquired of Chair Henderson as to
his general goals relative to the larger community and identified needs within
that community.
2. Notice of Intent to Award for Cell 8 Design
Solid Waste Director Timm Schimke outlined design work associated with the
construction of cell 8, in preparation for the Notice of Intent to award that
will be presented at the Wednesday Board meeting. He overviewed the
process of advertising for the project, that they received two responses, and
the relative difference in quality between the proposals. Commissioner
DeBone inquired about the work after the design is finished and an
estimated timeline, and Mr. Schimke explained the design company will
provide plans and be present with Deschutes County staff for interviews.
Solid Waste expects to be accepting waste in the new cell by June 2020.
3. CDD Work Plan FY 2019-20 Deliberations
Community Development Director Nick Lelack explained the process to
establish the 2019-20 CDD Work Plan. At the previous public hearing, the
BOCC MONDAY MEETING
JUNE 24, 2019 PAGE 2 OF 6
Commissioners allowed a request to keep the written record open and
deliberations were continued until today. Mr. Lelack summarized the input
they received, regarding wildlife habitat inventory and the marijuana text
amendment process. Chair Henderson noted one of the comments from
Central Oregon Association of Realtors (COAR) regarding the County working
with the City of Bend and the City of Redmond on the Urban Area Reserve.
He suggested adding the UAR to the Work Plan. Mr. Lelack stated it is
generally captured within the Work Plan but can name it specifically. All
Commissioners are supportive.
ADAIR: Made motion for approval of CDD Work Plan FY 2019-20 as
amended
DEBONE: Second
VOTE: ADAIR: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
4. Public Hearing Preparation for Marijuana Production Appeal 60135
Stirling Drive, Bend
Associate Planner Isabella Liu handed out a matrix overviewing each appeal
area. She stated the applicant notified her that his attorney has a medical
condition and plans to request a continuation of the hearing for 60 days.
Assistant Legal Counsel Adam Smith stated that the hearing has been
noticed, so at a minimum the hearing will need to be opened. People who
planned to testify can be given the option to do so or wait until the
postponed hearing date. Member of the audience Liz Dixon, appellant's
attorney, stated they are prepared to present Wednesday but would prefer
to do so at the same time as the applicant.
Chair Henderson asked whether staff approved the application, and whether
under these rules staff did not find this to be a youth activity center. Ms. Liu
confirmed both statements are correct. She noted there are several
recreational activities on the property, seemingly for all ages. Ms. Liu read
through the other topics from the matrix.
BOCC MONDAY MEETING
JUNE 24, 2019 PAGE 3 OF 6
5. Public Hearing Preparation for Reconsideration of Marijuana Text
Amendments
Associate Planner Tanya Saltzman explained there will be a public hearing of
the amendments on July 3rd, and a final decision deadline of September 3rd
Ms. Saltzman summarized the memo provided. Commissioner Henderson
asked how to ensure the record will include sufficient documentation to
show substantial evidence in the record for creating regulations. County
Counsel David Doyle stated that LUBA will assess the regulations against the
statutory provisions in ORS 475B, which allows the Board to impose
reasonable regulations. Assistant Legal Counsel Adam Smith added that staff
is diligently gathering documentation to include in the record. Mr. Smith
added he has additional comments (specific to litigation) that will be
provided during executive session. Commissioner DeBone stated he is
supportive of reasonable regulations in rural land, and outreach and
engagement with citizens throughout the process. Ms. Saltzman provided
options for the potential second hearing if necessary, and Commissioners
agreed on July 17th if needed.
RECESS: At the time of 3:11 p.m. the Board took a recess and reconvened the
meeting at 3:15 p.m.
6. Draft Decision Denying a Marijuana Production Proposal at 25606
Alfalfa Market Road
Senior Planner Jacob Ripper stated this proposal is based on Commissioner's
feedback during the last meeting about this property. He requested any
further feedback so he can make final changes prior to consideration of
document signature at Wednesday's meeting. Chair Henderson stated that
the Commissioners main points were captured well. Small revisions were
suggested by Chair Henderson, Commissioner DeBone and Counsel Doyle.
Chair Henderson requested an additional week for review.
BOCC MONDAY MEETING
JUNE 24, 2019 PAGE 4 OF 6
7. Review of Draft State of the County Presentation
Laura Skundrick presented the draft powerpoint for the State of the County
presentation. The Commissioners suggested revisions, and Ms. Skundrick
confirmed she will return to Wednesday's meeting with the updated
presentation for further review.
EXECUTIVE SESSION:
At the time of 4:08 p.m., the Board went into Executive Session under ORS 192.660
(2) (h) Litigation. The Board came out of Executive Session at 5:37 p.m.
OTHER ITEMS:
• Commissioner DeBone noted the trees laid on the side of Highway 20 are
currently in the bidding process for logging.
• Administrator Anderson stated the budget committee requested that staff
and BOCC review of the Project Wildfire contract with the committee. He
added that the current contract with Jodie Barram is set to expire, so they
can extend the contract monthly until the BOCC has that discussion, or can
extend the contract term longer and rely on the 30 -day cancellation clause.
Commissioners agreed to wait to make a decision until after tomorrow's
award ceremony.
COMMISSIONER UPDATES:
• Commissioner Adair noted the traffic issues she was notified of in Black
Butte during the annual meeting. Chair Henderson noted last year they had
planned more patrols and flashing signs. Commissioner Adair mentioned the
White House local government outreach meeting in September.
BOCC MONDAY MEETING
JUNE 24, 2019 PAGE 5 OF 6
• Commissioner DeBone noted meetings and events he'd recently attended:
Bend MPO regarding the MTIP plan, Transportation Steering Committee,
Ham Radio Field Days in Prairie Campground at Newberry, Cheri Helt town
hall, phone conference with EOCA. He added that the Upper Deschutes River
Communities is hosting all three Commissioners at the Sunriver Library.
• Chair Henderson noted Patty Limerick is speaking about water at the High
Desert Museum this week. He added that during his trip to Hawaii he had
interesting conversations with locals about the importance of continuing
agriculture, and the current lack of sugarcane, pineapple, and overall farming
in the area. It was also interesting to see the bypass around Lahaina, which
should be something considered by the cities in our County as we continue
to grow, and think about future road planning.
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 5:52 p.m.
DATED this 7 Day of 44-1
Commissioners.
ATTEST°
ECORD'NG SE2RETARY
BOCC MONDAY MEETING
2019 for the Deschutes County Board of
PHILIP G. H
DERSON, CHAIR
PA. _TI ADA 11, VICE CHAIR
ANTHONY DEBONE, COMMISSIONER
JUNE 24, 2019 PAGE 6 OF 6
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
1:00 PM, MONDAY, JUNE 24, 2019
Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend
This meeting is open to the public, and allows the Board to gather information and give direction to staff Public
comment is not normally accepted. Written minutes are taken for the record
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
Item start times are estimated and subject to change without notice.
CALL TO ORDER
ACTION ITEMS
1. 1:00 PM Public Health Advisory Board Overview and Priorities - HillarySaraceno,
Health Services Deputy Director
2. 1:30 PM Notice of Intent to Award for Cell 8 Design - Timm Schimke, Solid
Waste Director
3. 1:45 PM CDD Work Plan FY 2019-20 Deliberations - Nick Lelack, Community
Development Director
4. 2:15 PM Public Hearing Preparation for Marijuana Production Appeal 60135
Stirling Drive, Bend - Isabella Liu, Associate Planner
5. 2:45 PM Public Hearing Preparation for Reconsideration of Marijuana Text
Amendments - Tanya Saltzman, Associate Planner
Board of Commissioners BOCC Meeting Agenda
Monday, June 24, 2019 Page 1 of 2
6. 3:00 PM Draft Decision Denying a Marijuana Production Proposal at 25606
Alfalfa Market Rd. -Jacob Ripper, Senior Planner
7. 3:30 PM Review of Draft State of the County Presentation
COMMISSIONER'S UPDATES
EXECUTIVE SESSION
Executive Sessions under ORS 192.660 (2) (d) Labor Negotiations, ORS 192.660 (2) (e)
Real Property Negotiations, and ORS 192.660 (2) (h) Pending Litigation
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
Deschutes County encourages persons with disabilities to participate in all programs
and activities. This event/location is accessible to people with disabilities. If you need
accommodations to make participation possible, please call (department Admin
contact) (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.or_/meetin!calendar
Meeting dates and times are subject to change. If you have questions, please call (541) 388-6572.
Board of Commissioners BOCC Meeting Agenda Monday, June 24, 2019 Page 2 of 2
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 Monday Meeting of June 24, 2019
DATE: June 13, 2019
FROM: Hillary Saraceno, Health Services, 541-317-3178
TITLE OF AGENDA ITEM:
Public Health Advisory Board Overview and Priorities
RECOMMENDATION & ACTION REQUESTED:
Staff would like to introduce the new Chair and Vice -Chair of the Public Health Advisory
Board (PHAB) and provide an update to the Commissioners on current priorities. In
addition, the PHAB is seeking recommendations from the Commissioners on how the
PHAB can best serve the Board of County Commissioners (BoCC), preferred modes of
communication and ways of including Commissioners in prioritization activities, with the
goal of improving the effectiveness of the PHAB and the communication between PHAB
and the Board of County Commissioners.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County's Public Health Advisory Board was established to enhance community
relations with Deschutes County Health Services --Public Health Division (DCHS-PH), to
increase public knowledge about public health issues, to assist in the betterment of
services provided by DCHS-PH and to advise the BoCC, as the Local Public Health
Authority, about matters of public health and the operation of the public health system.
PHAB would like to identify how they can best be of service to the BoCC. Examples
include: providing updates on emerging public health issues and trends; researching
topics and providing recommendations on health related policies, issues and/or
legislation from a community member perspective; being available to help create letters
of support/opposition when needed; and to work with the Commissioners on health
topics and issues of interest to the Commissioners.
PHAB would also like to improve communication with the BoCC. This could be
accomplished by providing annual reports or updates from PHAB during work sessions
and/or regular invitations to the Commissioners to attend PHAB meetings when there are
potential topics of interest or concern.
FISCAL IMPLICATIONS: None
ATTENDANCE: Keith Winsor, PHAB Chair; Rebeckah Berry, PHAB Vice Chair; Hillary
Saraceno, Public Health Deputy Director; Tom Kuhn, Community Health Program Manager
2019 PHAB
Members
Rebeckah Berry
Peter Boehm, MD
Charla DeHate
Charles Frazier
David Huntley
Sharity Ludwig
Tami Pike
James Powell, MD
Robert Ross, MD
Steve Strang
Kate Wells
Keith Winsor
Stacey Witte
2019 PHAB
Meetings
Meetings are held
10 times per year,
typically the 4th
Wednesday of the
month from
12- 1:30 pm.
Advancing
public health
performance
49tTN AccREpNI1�
Enhance community relations with the Public Health Division,
increase public knowledge of public health issues, and assist in
the advancement of services provided by DCHS-PH
What This Program Provides To Our Community
The Public Health Advisory Board (PHAB) helps advance Deschutes
County as a healthier place by:
• Providing information to the Board of County Commissioners and
the County Administrator about emerging public health issues
and legislation
• Promoting public health's services and educational opportunities
in the community
• Participating in DCHS-PH strategic planning, health improvement
plan development, and health assesment reviews
• Assisting DCHS in fulfilling the requirements necessary to be
designated as an Accredited Health Department
• Recommending advocacy positions to assure essential public
health functions
2019 Health Heroes
earReat4
„O
11,4CCREONI
IVANSEREet
100%
of partners think DCPH
should play a
significant role in address-
ing health inequities and
social determinants.
76%
of community partners Agree or
Strongly Agree that DCPH is commit-
ted to addressing health inequities
and the environmental, social and
economic conditions that impact
health.
Example Essential
PH Services
Mobilize community partnerships
i and action to identify and solve
health problems.
Develop policies and plans that
support individual and communi-
• ty health efforts.
Link people to needed health ser-
vices and ensure the provision of
care when otherwise unavailable.
Enforce laws and regulations that
protect health and ensure safety.
Monitor health status to identify
and solve health problems.
How PH can address the
Social Determinants of Health
Engage and collaborate with community members and non
-traditional partners, such as housing authorities, law en-
forcement, schools, and community organizations.
Develop and implement a Regional Health Improvement
Plan that includes and addresses the SDOH.
Educate community members about their eligibility for and
access to entitlement programs like Medicaid, including its
medical, mental health, and housing benefits.
Develop strategies to ensure enforcement of existing regula-
tions and laws that affect health, such as housing and
health codes to prevent lead poisoning.
Ensure health assessments and data include SDOH and en-
gage multi -sectoral partners (i.e. RHA).
deschutes.or healthdata
•
2019 PHAB
Members
Rebeckah Berry
Peter Boehm, MD
Charla DeHate
David Huntley
Sharity Ludwig
Tami Pike
James Powell, MD
Robert Ross, MD
Steve Strang
Kate Wells
Keith Winsor
Stacey Witte
2019 PHAB
Meetings
Meetings are held
10 times per year,
typically the 4th
Wednesday of the
month from 12-
1:30pm.
Q`i�0 WALTH UFp�R
Health Services, Public Health
Public Health Advisory Board
April 25, 2019
Recommendation: Support Oregon Senate Bill 27
Dear Senator Betsy Johnson:
In Oregon, local health departments have been the liaison between the
State Drinking Water Program and public water systems. Over the last 10
years, new and more stringent EPA rules and regulations have been
implemented including the Revised Total Coliform Rule. This rule
mandates increased investigations and required chlorination for
bacteriological detections. These rules have increased the amount of
time local health departments must dedicate to the drinking water
program due to additional investigations, technical assistance,
compliance follow ups, and an increase in contacts with water system
operators and the public.
Despite this increase in workload, there has not been a fee increase for
the Oregon Health Authority Drinking Water Program since 2007. During
this same time, the population of Deschutes County has increased by
nearly 23 percent. New water systems and the population of people
served by these systems continues to rise at a commensurate rate.
Senate Bill 27 would increase fees on public water systems, providing the
necessary resources and infrastructure local and state public health
currently needs to adequately perform this critical public health function.
The Centers for Disease Control and Prevention (CDC) note that providing
safe drinking water is one of the most important public health
achievements of the 20th century. Therefore, on behalf of the Deschutes
County Public Health Advisory Board (PHAB), we recommend keeping our
drinking water safe by supporting Oregon Senate Bill 27.
7o promote and protect the health and safety of our community.
2577 NE Courtney Dr. Bend, Oregon 97701
Thomas.I<uhn@deschu`es.org www.deschutes.org
Please contact us if you would like to continue this conversation in protecting Oregon
residents from waterborne disease.
Sincerely,
Keith Winsor, Chair
Deschutes County PHAB
kcwinsorcpiinfo.com
Rebeckah Berry, Vice Chair
Deschutes County PHAB
rebeckah.berry@cohealthcouncil.org
ES
2019 PHA
Members
Rebeckah Berry
Peter Boehm, MD
Charla DeHate
Charles Frazier
David Huntley
Sharity Ludwig
Tami Pike
James Powell, MD
Robert Ross, MD
Steve Strang
Kate Wells
Keith Winsor
Stacey Witte
2019 PHAB
Meetings
Meetings are held
10 times per year,
typically the 4Lh
Wednesday of the
month from 12-
1:30pm.
Health Services, Public Health
Public Health Advisory Board
MaiganaNNONFAMSAOSSOMIXONEMONS
Recommendation: Support Oregon HB 3063
Dear Representative Zika:
March 20, 2019
The Centers for Disease Control and Prevention (CDC) and the World
Health Organization (WHO) recognize that vaccines are safe and effective
for preventing childhood diseases. Through effective vaccines, Smallpox
has been eradicated worldwide and Polio is nearly eliminated. Despite
having this important and effective tool to reduce preventable childhood
diseases and complications, our community has seen a decline in the
percentage of vaccinated children entering school.
Non-medical exemptions have been rising each year, reducing
community (herd) immunity in both Deschutes County and the state of
Oregon. In the 2000/2001 school year the county unvaccinated rate was
0.4%. Since that time, the rate of unvaccinated children has progressively
increased with the 2017/2018 school year unvaccinated rate being 11.6%
for Kindergarten students, significantly reducing community immunity.
Oregon is one of only 17 states that allow non-medical or personal
exemptions. California changed their law after a 2014 outbreak to only
allow for medical exemptions. Washington State currently has proposed
legislation (HB 1638 and SB 5841) to limit exemptions for non-medical
reasons.
Lower vaccination coverage increases the likelihood of an outbreak in our
community. It also puts infants too young to be vaccinated and
immunocompromised individuals at much greater risk for the disease and
life threatening complications that often accompany the disease. These
people have to remain at home when there is an outbreak to prevent
10 .)ror'70C( G7 Ac r'Ct` (Y7c 1?(_'UI I7 o'1C:i S0/>iy of OU/ co 7'7 1)lir/
orna;; (inv rade sct,c,CL : or,5 WW.c<< ,c i'ute,.or :
contracting these diseases and associated complications. Even those who have not had a full
vaccine series are at risk. The Washington State measles outbreak in Vancouver this year has 70
confirmed cases as of 3/11/19, with two of those people having had at least one dose of the MMR
vaccine.
Kindergarten and First Grade ttt
2000-2001 (Oregon 1.010
Kindergarten Nonmedical Exert
2017-2018{Oregon 7.510
lib-waJ.
CSU
Figure 1: Side by side comparison county Kindergarten and First Grade Non-medical exemptions from 2000/2001 to
2017/2018. The darker blue shades indicating higher rates of non-medical exemptions.
We are concerned that our community and state are at great risk of life-threatening outbreaks due
to low vaccination rates. The only way this can be avoided is if we once again restore herd
immunity. Therefore, on behalf of the Deschutes County Public Health Advisory Board (PHAB), we
recommend eliminating non-medical exemptions by supporting Oregon House Bill! 3063. Please
contact us if you would like to continue this conversation in protecting Oregon residents from
disease.
Sincerely,
Dave Huntley, MPH
Deschutes County PHAB
david.p.huntleyPymail.corp
Robert Ross, MD
Deschutes County PHAB
]'gross stcharleshealthcc
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 Monday Meeting of June 24, 2019
DATE: June 18, 2019
FROM: Nick Lelack, Community Development, 541-385-1708
TITLE OF AGENDA ITEM:
CDD Work Plan FY 2019-20 Deliberations
RECOMMENDATION & ACTION REQUESTED:
Adopt as proposed or as modified by the Board at this meeting.
BACKGROUND AND POLICY IMPLICATIONS:
On June 12, 2019, the Board of County Commissioners (Board) conducted a public hearing on the draft CDD
Work Plan for FY 2019-20, and kept the written record open until June 13 at 5:00 p.m. The Work Plan guides the
department's work over the fiscal year, and serves as the context within which new projects that arise during
the course of the year are prioritized and initiated.
FISCAL IMPLICATIONS: None. If projects or services in the adopted Work Plan create fiscal
implications, staff will seek BOCC approval separately prior to initiating such services or
projects.
ATTENDANCE: Nick Lelack, Director
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Nick Lelack, AICP, Director
DATE: June 24, 2019
SUBJECT: Deliberations — Community Development Department (CDD) Work Plan FY 2019-20
On June 12, 2019, the Board of County Commissioners (Board) conducted a public hearing on the draft
CDD Work Plan for FY 2019-20, and kept the written record open until June 13 at 5:00 p.m.
All written comments are attached. Two comments supported proposed projects (Central Oregon
Association of Realtors letter) or recommended adding a project to the Work Plan (Central Oregon
LandWatch). Three comments addressed the substance of an ongoing Work Plan project, the marijuana
text amendments.
Additional comments were provided at the Board's public hearing.
Public testimony before the Planning Commission recommended the County address rural transportation
issues, including working with road districts to maintain or improve local roads.
BOARD DECISION
1. Adopt the Work Plan as proposed, or
2. Adopt the Work Plan as modified by the Board.
Attachments:
1. Central Oregon Association of Realtors Letter
2. Central Oregon LandWatch Email and Attachments
3. Stephanie Marshall Email
4. Cannabis Nation Team Letter—Jenny Mueller, Matt Hurt
5. Andy Satterfield Email
April 29, 2019
Deschutes County Board of Commissioners
1300 NW Wall Street
Bend, OR 97703
Re: CDD Work Plan for Fiscal Year (FY) 2019-20
Dear Chair and Commissioners,
On behalf of the Central Oregon Association of REALTORS® (COAR) — representing nearly 1,800
real estate professionals in Deschutes County — thank you for the opportunity to comment on
the Community Development Department (CDD) Work Plan for Fiscal Year (FY) 2019-20.
We are writing to express support for the following projects and objectives for FY 2019-20:
• [Environmental Soils] Continue coordination with the City of Bend and DEQ regarding
the southeast sewer interceptor and sewer expansion, and the impact on homeowners
with onsite wastewater systems - The state's "300 -foot rule" has the potential to burden
homeowners with significant conversion costs. The City of Bend's Citywide Septic -to -
Sewer Conversion Program has provided needed flexibility and options to affected
homeowners, while remaining compliant with DEQ's rules. We support the County's
ongoing efforts to work with the City of Bend around fair solutions that minimize the
impact on homeowners.
• [Planning] Nonprime Resource Lands: Complete comprehensive plan amendments to
establish eligibility criteria for designating Exclusive Farm Use or Forest Use zoned
properties to Nonprime Resource (NPR) Lands defined in OAR 660-004-0005(3) as "Non -
Resource Lands..." - In an environment in which demand is outstripping supply and
significant housing needs exist, it is prudent to re-evaluate agricultural and forest lands
that are not viable for their designated purpose to determine if they represent
opportunities for other uses. We support the County's proposal to re -designate six
specific areas committed to residential uses that were platted or conveyed prior to State
enabling planning legislation taking effect in Deschutes County.
• [Planning] Process City of Bend and City of Redmond UGB amendments related to
implementation of Affordable Housing Pilot Project(s) and amend our comprehensive
plan. Participate in state legislative committee(s). Consider implementation in FY 2019-
20 if rural ADUs are allowed - COAR is` an advocate for sound policies and incentives to
improve the availability of affordable housing in Central Oregon. As such, we supported
HB 2336 and look forward to the housing opportunities it will create in Redmond. We also
support SB 88, and commend the County and its staff for leading in both the development
of rural ADU policy and advocating for its passage in the legislature. If enacted, SB 88 will
offer another housing option in the rural county — contributing to supply and providing a
legal pathway for ADUs outside city limits.
• [Planning] Coordinating with the cities of Bend and Redmond to expand urban growth
boundaries to provide new affordable neighborhoods - We fully support this work plan
item. We also encourage the County in its role as a partner to support and encourage
Bend to expeditiously establish an urban area reserve.
• Maintaining fast turnaround times for processing permit applications.
Thank you for your service to Deschutes County, as well as your consideration of the local real
estate community's input.
Should you have any questions, please feel free to contact us at 541-382-6027 or info@coar.com.
Sincerely,
Anthony Levison
2019 President
Central Oregon Association of REALTORS® &
MLS of Central Oregon
Jci.,,_
Jason Boone
Chair, Government Affairs Committee
Central Oregon Association of REALTORS® &
MLS of Central Oregon
cc: Nick Lelack, Director, Deschutes County Community Development
Nick Lelack
From: Paul Dewey <paul@colw.org>
Sent: Thursday, June 13, 2019 11:55 AM
To: Nick Lelack
Subject: Deschutes County Draft Work Plan
Attachments: ODFW New Inventories Map 2019.pdf; OSFfCH2O16UnitO8A_UpperDeschutesRiverOrtho
2019.pdf; OSFfCH2O16Unit09_LittleDeschutesRiverOrtho 2019.pdf
Hello Nick:
If the Record is still open for the Board's determination of its Work Plan for Fiscal Year 2019-20, could you please enter
this email and the attachments?
In light of new information from ODFW on new wildlife inventories, including updated deer winter range and elk range
(both showing significant increases), plus spotted frog data, we believe it is important that the County Comprehensive
Plan be updated to reflect this current information.
Accordingly, we request the Board to include in its Work Plan for Fiscal Year 2019-20 the updating of its Comprehensive
Plan and Goal 5 inventory and protection for these important natural resources.
Thank you for your consideration,
Paul Dewey
Executive Director,
Central Oregon LandWatch
1
Legend
v//i
ODFW Updated Deer Winter Range
ODFW Updated EIk Winter Range
Deer Migration Range
Deer Winter Range
EIk Range
N
4
Notes:
- County EIk Range Inventory: 52,063 acres / ODFW Updated Inventory: 1,122,467 acres.
- County Deer Winter Range: 288,480 acres / ODFW Updated Inventory: 650,494 acres.
- ODFW is not proposing updates to Sage Grouse or Antelope habitat,
- See separate Spotted Frog critical habitat map for update.
'Y�
F
Q
P
Z
O
O
z
0
b
z
0
121`50'0"W
121'45.0W
121'40'0'W
121'3517'W
121'30'0"W
121'25'0'W
121.200'W
Critical Habitat for Oregon Spotted Frog (Rana pretiosa)
Unit 8A: Upper Deschutes River (Below Wickiup Dam), Oregon (Deschutes County)
2001 Acres / 810 Hectares
121°50'0'W
121'45111N
121'40'0'W
No warranty is made by the U.S. Fish and Wildlife Service
as to the accuracy, reliability, or completeness of these data for
individual or aggregate use with other data. Original date were
compiled from various sources. Spatial information may not meet
National Map Accuracy Standards. This information may be
updated without notice,
121.3517'W
121°30'O"W
121°25'0'W
Final Critical Habitat for the
Oregon Spotted Frog 2016
U.S. Fish and Wi Idlife Service
121°20'O'W
z
0
N
N
Z
O
N
Z
O
0
0
b
z
0
z
0
b
FP
z
N
122°60'W
122°00"W
121.55'0'W
121°50'0'W
121•45'0'W
121' 40'0'W
121°35'0'W
121'30'0'W
121'25'0'W
Critical Habitat for Oregon Spotted Frog (Rana pretiosa)
Unit 9: Little Deschutes River, Oregon (Deschutes/Klamath County)
11033 Acres /4465 Hectares
Critical Habitat
1:250,000
1 1 1 I I
0 2 4
6 8 Miles
122°50W 122°00"W 121°56'0'W
121°50'0'W
No warranty Is made by the U.S. Fish and Wildlife Service
as to the accuracy, reliability, or completeness of these data for
individual or aggregate use with other data. Original data were
compiled from various sources. Spatial Information may not meet
National Map Accuracy Standards. This Information may be
updated without notice.
121.45'0'W
121'40'0'W
121'35'0'W
121'30'0'W
Final Critical Habitat for the
Oregon Spotted Frog 2016
U.S. Fish and WI Idlife Service
z
0
I0
z
0
b
z
z
0
b
0
0
z
0
0
z
0
b
z
0
Nick Lelack
From: Stephanie Marshall <stephanie@bennulaw.com>
Sent: Thursday, June 13, 2019 2:34 PM
To: _admin; Nick Lelack
Cc: Lindsey Pate
Subject: Comment Letter on 2019-2020 Work Plan
June 13, 2019
re: Written Public Comments on County CDD 2019-2020 Work Plan (Hearing on June 12, 2019)
Dear Chair Henderson, Commissioner DeBone and Commissioner Adair:
This law firm is the successor entity to Clifton Cannabis Law LLC, which represented twelve (12) petitioners
(the "Petitioners") in an appeal of Ordinance No. 2018-012 to the Land Use Board of Appeals (LUBA) in 2018.
These written comments are submitted pursuant to the Board's statement at the public hearing on June 12,
2019 that the record on the matter would be left open through June 13, 2019.
A. Consideration and Adoption of Revised Marijuana Regulations.
Nick Lelack, Deschutes County Development Department (CDD) Director presented the department's Annual
Report and Draft 2019-2020 Work Plan at the public hearing, Among other things in the report, the County's
regulation of marijuana was addressed.
We are advised by the CDD that you intend to reconsider the marijuana text amendments that were adopted
(and appealed and subsequently withdrawn) last fall in a public hearing on July 3. We have further been
advised that the Board's intention is to bring the amendments to the hearing in the same form as they were
adopted and proceed from there with the public process. With the upcoming legislative process, the County
has the opportunity to address many issues raised by the LUBA Petitioners to come up with regulations that
are actually reasonable and supported by the facts.
B. Summary of Legal and Factual Deficiencies in Ordinance 2018-012
The Marijuana Regulatory Assessment prepared by CDD staff at the Board's request, including a Marijuana
Land Use Existing Conditions Report, dated October 23, 2017, shows no issues were identified with respect to
permitted operations. There is no basis for increasing regulation of marijuana. The Commissioners should
listen to all of their constituents, particularly those most impacted by the regulations, which includes those in
the marijuana industry.
Alleged impact of those operations on the public is not supported by evidence, but on fears and a lack of
understanding. Elevating presumptions about character, crime and even odor over the documented track
record of legal, complaint operations is error.
The result is the erosion of rights under the Farm Bill and the State and Federal constitutions. Why is
marijuana treated differently than hemp with respect to odor? Why is a presumption of guilt applied to
applicants and operators to justify unannounced searches? Why are no other businesses and no other farms
subject to such extreme exercises of claimed authority? Marijuana is a farm crop entitled to protection under
the Farm Act and Goal 3. Small farms are also entitled to protection by the County Comprehensive Plan. The
County must not lose sight of these existing protections in the .rush to regulate out of existence what is viewed
as politically unpopular. The County elected to opt -in, and not prohibit marijuana. It cannot have it both ways.
With respect to legal authority, the County is indeed limited with respect to the scope of marijuana regulations it
can adopt. First, they must be "reasonable." Second, ORS 4756.486 describes the type of police power
authority granted, which extends to hours of operations, access and setbacks.
This authority is importantly constrained by ORS 475B.454, Preemption. The provisions of the statutory
scheme are designed to operate uniformly throughout the state and are paramount and superior to and fully
replace and supersede any municipal charter amendment or local ordinance inconsistent with the provisions of
1
the statutory scheme. Amendments and local ordinances that are inconsistent with the statutory scheme are
repealed.
ORS 475B.526 declares marijuana as a crop for purposes of "farm use," (ORS 215.201), production of
marijuana is included within the definitions of "farm" and "farming practice" (for purposes of ORS 30.930), and
marijuana is the product of an agricultural activity (for purposes of ORS 568.909) and the product of farm use
(for purposes of ORS 308A.062). Marijuana is entitled to the same protections as other crops under Oregon's
Farm Act and is shielded from nuisance and trespass lawsuits under ORS 30.935
The County has already been warned by the Legislature regarding its local regulations. Defending regulations
that the County should know to be unreasonable and inconsistent with state law is a waste of public resources.
C. Specific Challenges to be Raised if the County Reenacts the Same Regulations and Restrictions in
Ordinance 2018-012
If the County essentially readopts the Ordinance, challenges to LUBA will be made on these, and other bases.
First, the County would again exceed its jurisdiction and in doing so, would misconstrue controlling laws. The
County lacks authority to remove marijuana's state protections as a legal farm crop (per ORS 475B.526) under
Oregon's Right to Farm Act ("Farm Act"). A new ordinance that reenacts the challenged Ordinance 2018-012
will violate that Act by granting a nuisance and trespass right against marijuana producers. The County
violated Goal 3 and its Plan by effectively capping an undisputed viable agricultural use in the EFU.
The County further lacks authority to adopt facially unreasonable restrictions on marijuana production. A local
government may only regulate EFU land use as allowed by state law and cannot impose barriers to farm uses
outright permitted in the EFU. The carve -out for "reasonable conditions" on the manner of marijuana production
(ORS 475B.486 and ORS 475B.928) must be read congruously with these protections because otherwise,
marijuana loses its express protections as a farm crop. Each restriction in Ordinance 2018-012 is
unreasonable because it demands farm operations with zero impact (in terms of light, noise, odor, etc.). The
Ordinance took the strictest marijuana regulations in Oregon and purposefully made them harsher to appease
certain constituents. The County sought to sacrifice a farm crop to appease nonfarm uses in EFU lands. Its
assertions of compliance with these laws is disproved by the record and the practical effects of its Ordinance.
The Ordinance was not factually supported as required by Goal 2. The record reflects substantive evidence
against the Ordinance restrictions, but only speculation, unsubstantiated complaints, and the Commissioners'
manifest prejudice to support them. The County should not again ignore the facts to appease grumblings of
certain constituents.
The Ordinance also violated the U.S. and Oregon Constitution. Marijuana growers face unreasonable
regulations not suffered by other County farmers or other marijuana growers outside the County. This is not
rationally related to a legitimate government endeavor because the County's true aim in adopting the
Ordinance was to usurp state legislative and administrative authorities to regulate marijuana production out of
existence. The County's pretext should fail. The Ordinance's restrictions also failed rational basis analysis
under 14th Amendment substantive due process jurisprudence. Forcing marijuana producers and processors
to waive constitutional rights against unlawful searches and seizures is demonstrably unnecessary and
pretextual, designed to harass, not enforce. Lastly, the Ordinance unconstitutionally granted a privilege by
giving certain EFU owners a right to nuisance and trespass relief against marijuana growers that other citizens
cannot exert against the same type of farming byproducts.
We understand a public hearing is scheduled for July 3, 2019 with respect to consideration of a new ordinance
to replace Ordinance 2018-012. Please include this letter in that record, as well as in the record for the CDD
2019-2020 Work Plan.
Thank you for your attention to and consideration of tkese comments.
Sincerely,
Stephanie Marshall
2
Stephanie Marshall Senior
ttorneysr of aa, pgheii ulaw, om
BENNU LAW Bennu Law, LLC
(541) 306-6144
354 Greenwood Ave., Suite 213
Bend, OR 97701
www.bennulaw,com
This e-mail message may contain confidential or legally privileged
information and is intended only for the use of the intended
recipient(s). Any unauthorized disclosure, dissemination, distribution,
copying or the taking of any action in reliance on the information
herein is prohibited. E-mails are not secure and cannot be guaranteed
to be error free as they can be intercepted, amended, or contain
viruses. Anyone who communicates with us by e-mail is deemed to
have accepted these risks. Company Name is not responsible for errors
or omissions in this message and denies any responsibility for any
damage arising from the use of e-mail. Any opinion and other
statement contained in this message and any attachment are solely
those of the author and do not necessarily represent those of the
company.
Dear Chair Henderson, Commissioner DeBone, Commissioner Adair,
What began as a medical grow operation in 2015 and with five dispensaries across
Oregon, our goal is to continue to thrive and provide Oregonians with the high-quality cannabis
products they've grown to love from Cannabis Nation. In addition to producing over 30 premium
strains, we also make our own concentrates, cartridges, and pre-rolls. Our Sunriver store is our
newest location, opening in June of 2018. In the coming fiscal year, we are looking for
regulations that give our retail store in Sunriver an equal opportunity to participate in the
regulated cannabis market.
We would like to propose the extension of our allowable hours of operation to match the
legally allowable hours for the neighboring cities of Bend and La Pine. Currently, the allowable
operational hours of dispensaries outside of Bend City Limits and La Pine City Limits in
Deschutes County is 9:00 a.m. to 7:00 p.m. Cannabis Nation would like the opportunity to
provide the same hours of service for the population of rural Deschutes County. We previously
testified in August 2018 proposing this change in operating hours. Our proposed hours of
operation would be:
8:00 a.m. — 9:00 p.m. Sunday, Monday, Tuesday & Wednesday
8:00 a.m. — 10:00 p.m. Thursday, Friday & Saturday
As Cannabis Nation Sunriver has been operating just over 1 year, we have seen that the
customer traffic is much higher in the evening than in the morning. In the first hour of operations
in the months of March, April, and May 2019, only 5.49% of sales occurred. However, during the
last hour of operations, over 2x that many sales occurred at 11.93%. There have been
numerous occasions during closing shifts that customers have continued to arrive after closing
at 7:00 p.m. and must be turned away. This indicates that the ability to operate to the legally
allowed time of 10:00 p.m. will benefit not only our customers, but our employees and the State
of Oregon as well.
Benefits for the increased hours of operation include:
• Additional hours of workable time for all locally-hired employees, potentially generating the
need for added positions to be filled by locally sourced staff.
• Residents of rural Deschutes County and vacationing individuals in the area would not feel the
need to drive all the way to Bend or La Pine to make a purchase, keeping the roads safer with
decreased potential for individuals driving while tired after a long day of work or physical activity
or in potentially dangerous weather conditions.
Individuals living in, as well as those visiting, rural Deschutes County and the Sunriver
area work and play all hours of the day. We would like the opportunity to provide the local
community and numerous visitors with the State of Oregon's authorized legal right to purchase
marijuana during operating hours that fall within the hours of 8:00 a.m. and 10:00 p.m.
Thank you,
Cannabis Nation Team
Points of Contact:
Jenny Mueller
Manager 1 Cannabis Nation Sunriver
(541)241-73801 jenny.mueiler(c cannabisnationinc.com
Matt Hurt
Director of Operations 1 Cannabis Nation Inc.
matt.hurt@cannabisnationinc.com
Nick Lelack
From: Andy Satterfield <andy@sacredgroundmedicinals.com>
Sent: Thursday, June 13, 2019 2:58 PM
To: _admin; Nick Lelack
Subject: BOCC meeting Testimony for 6/12/19 Agenda Item 21
Dear Chair Henderson, Commissioner DeBone, Commissioner Adair,
My name is Andy Satterfield, owner and co-founder of Sacred Ground Medicinals, located in Deschutes
County.
I testified in the last quarter of 2018 for the proposed rules. I am still concerned about the state of cannabis in
Central Oregon, specifically the rural community. I wanted to get it in the record to tell you all that in this fiscal
year I hope to see workable/equitable/ code that allows our cannabis farmers to participate int he regulated
market. We are proud members of this counties farming heritage and would like to be given the opportunity for
our businesses to thrive.
Thank you for your time and I look forward to working with you in the future.
Regards,
Andy Satterfield
Owner and Co -Founder of SGM, LLC.
1
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 Monday Meeting of June 24, 2019
DATE: June 10, 2019
FROM: Isabella Liu, Community Development,
TITLE OF AGENDA ITEM:
Public Hearing Preparation for Marijuana Production Appeal 60135 Stirling Drive, Bend
Attendance: Izze Liu, Associate Planner
Summary: On May 13, 2019, staff issued an approval of a marijuana production facility located
at 60148 Stirling Drive, Bend. The decision was appealed on May 28, 2019. The Appeal
documents are attached.
STA I E 01= ORF;CiON )
)ss.
COUNTY OE 1)ESC1-11'"I
AIF1DAVIT OF RON HAtiSER
1. Ron Ilauscer. beim. first duly sworn. hereby depose and state as follows:
I. I reside at Sundance \lcadovvsin 13cnd. Oregon. 1 lived here front 1977 to 1989 and
ha\e mov ed back reeentl\.
2. With regard to the Appeal of Deschutes County Administrative Determination No.
247 -18 -000915 -AD. 1 hereby state that I am opposed to a marijuana production facility located
ithin 400 feet of the Sundance recreation facilities (sw Miming pool. tennis and basketball
courts and picnic areas).
3, 1 am a property owner and head '.0f security at Sundance.
3. My duties as head of sccuritinclude supery icing the pool and acti' ities in the
Recreation Area,
5. This summer. ue will host the Boy Scout Jamboree. and expect 1.100 13ov Scouts.
6. We prov ide swimming. ming. actiti itv ball games and equipment. and picnic areas along the
fence next to the Gore proposed It to" site.
7. Swimming attracts 6-18 kids at an) given time. Adults must accuntpanthe youths
\\ Hie sv' immin��.
8. We also host organized swims at the pool. currently adults 9-10 am. and all families
10 am 109 pm.
9. I make this Affidavit in support of Keith :darns" appeal in this matter.
DATED this ZV day of 1Vla�. 2019,
OFFICIAL STAMP
r PAUUNE SUE AYLETT
NOTARY PUBLIC -OREGON
COMMISSION NO. 965868
MY COMMISSION EXPIRES AUGUST 24, 2021
Ron Hauser
SUBSCRIBED AND SWORN to before me tlti
day of \iay. 2019.
N ,tar\ Public for
Ni' Comm. Expires:
Exhibit
Page 4_ of
STATE OF OREGON )
) ss. AFFIDAVIT 0F BETH LESLIE
COUNTY OF DESCTIUTES )
I, Beth Leslie, being first duly sworn. hereby depose and state as follows:
I. I reside at Sundance Meadows in Bend. Oregon, as pool host. I have been an owner in
Sundance Meadows for the past 20 years.
2. With regard to the Appeal of Deschutes County Administrative Determination No.
247 -18 -000915 --AD, I hereby state that I am opposed to a marijuana production facility located
within 400 feet of the Sundance recreation facilities (swimming pool, tennis and basketball
Courts and picnic areas).
3. The Sundance Recreation Area is comprised of pool, paved area fir tennis and
pickleball and basketball. In the summer, we set out picnic tables as well.
4. Families customarily come to the Recreational Area to swim, play games and picnic,
usually for three or more hours per day and also accompany youth swimmers.
5. Horse trails also travel through the edge of the Recreation Area. Children often ride
without parents on the trails.
6. During holiday weekends, 50-75 people are often using the Recreation Area at a time.
7. The Recreation Area is at the fence with the Gore property where the grow site is
proposed. The Gore property is easily visible from the Recreation Area.
8. I make this AflidaN it in support of the appeal oldie above Decision.
DATED this
day of May, 2019.
•.; OFFICIAL STAMP
PAUUNE SUE AYLET'f
NOTARY PUBUGOREOON
COMMISSION NO. 965868
MY COMMISSION EXPIRES AUGUST 24, 2021
Beth Leslie
day of May, 2019.
SUBSCRIBED AND SWORN to before me this
Notary Public for Ore
My Comm. Expires:
Exhibit /
Page �._ of _
Ranch Security Upgrade
In the past, the current
coded front gate and
spiked exit was suffi-
cient. As in all things,
times change and the
need to upgrade security
measures on the ranch is
one that has needed to
be addressed for a Tong
time. Add to that the
problems with the exit
gate spikes has cost the
ranch a lot of money in
tire repairs this past year
and the system is only
getting worse as it ages.
The cost of tearing out
the old, cracked con-
crete and replacement
and repair of the spikes
is nearly equal to the
cost of purchasing a cod-
ed gate like the one as
you enter. A majority of
Board of Directors has
voted in favor of replac-
ing the whole system
with a newer updated
version that will be indi-
vidualized to each own-
er. It will keep track of
each person as they
come and go and help
prevent "code sharing".
This will help in keeping
track of who has a right
to be on the ranch and
who does not. If an
owner is in arrears, their
personal code would
then be disabled until all
monies owed is paid.
The old coded gate will
be moved to the Ford
Rd ditch rider crossing
which will reduce the
number of people sneak-
ing in through the back
to enter ranch property.
By updating this systems
all ranch owner proper-
ty in the compound and
through out the ranch
will be safer. A one time
assessment of $ 15.00
will be assigned to each
deed to help cover the
$7,300 expense for tak-
ing care of this security
issue. If you have any
questions, get in touch
with one of your board
of directors.
Fishing Tournament Approved
The dust bowl pond near
the Ford rd. entrance has
been empty for years. At
one time it was a useful
pond, but fissures opening
in the ground made it un-
usable without pouring a
large amount of money
into it. Obviously, this ex-
pense was no where on
the radar list for ranch
priorities. An outside enti-
ty has agreed to pay "in
full" all expense of lining
the pond and building UD
the eco -system around it
in order to create of nice.
well stocked fishing pond
in which to hold fishing
tournaments. Ranch own-
ers would have full acces
to the Dona ana It s
tent. Details are nein:
workea out ana any aue_
tions should be adare,s7..
to ranch personnel
ivac�;�thibit
Page _I_ of _b _
PAGE 2
The sun always shines
above the clouds!
sWIITS .4� Pt= =
From the Presideits Desk
May already....where has
the year gone??? This
has been a hard year for
the Ranch both physically
and financially. I know,
know....we raised the
dues. Raising the dues
helped pay for the costs
that we had to borrow
money to pay for last
year. The budget did not
SUR (FIR Gfritnii.P.67
CCRs Article 2
POWERS OF SUN -
DANCE MEADOWS
PROPERTY OWNERS'
ASSOCIATION. The
association, in its sole
and absolute discretion,
and as more fully set
forth in its articles and
By -Laws.
A. Shall have the sole and
exclusive right and duty
to manage, operate, con-
;tl..I)rfl
The lease for Equine
Outreach is under ne-
gotiation. For now,
they are paying month
by month. A new en-
trance will be created
to the area they lease
so the need to enter
into the secured area
E 171 24/
expect to have to pay for
a new gate entrance, a
$2500 deductible for
snow damage, overtime
for employees because
of the snow, repairs to
the pool.....I could go on
and on. We all, board
and staff, are doing our
best to reduce costs to
the Ranch. Among those
trol, repair, replace or
restore all of the im-
provements, trees,
shrubbery, plants, and
grass on Sundance Mead-
ows
B. Shall levy and collect
fees, dues and assess-
ments from its members
C. May establish and
maintain a reserve fund
for these and other pur-
poses.
is reduced dramatical-
ly. This past year has
been a learning experi-
ence for both lease
and lessor. We are
looking forward to this
second year with opti-
mism as most unfore-
seen "bugs" have been
changes are a restriction
for purchasing to make
repairs and expecting
reimbursement by the
Ranch. Please talk to
staff before purchasing,
get approval and avoid
having 5 of a kind of item
but not something else
we REALLY
need. Thank you all.
I. May expend the mon-
ies collected by the As-
sociation from assess-
ments or charges and
other sums received by
the Association for the
payment and discharge of
al proper costs, expenses
and obligations.
ironed out. The part-
nership has been fruit-
ful and as we venture
into the future, goals
are filled with positive
energy and better
communication.
page
'VCLUE 2, SSUE
P A G 3
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il Ir.ect DC,Vit7.3,-,
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1 31
lic.,Tse
CYVT3'),I 0:Maty
Horse riding has been
officially opened for
the summer of 2019i
We have returned to
the system of having a
sign-up sheet in the
office during, office
hours and/or hanging
in the rec hall during
the evenings. be cer-
tain that an riaers are
wearing the appropri-
ate clothing or pants
and close toed shcE.
before reporting for
rides times. Riders
wno are not pf
aressea win no:
allowed to nae
suety measur.,
)K711-15ibitt at:r
Page
1
VOLVME 2, /5SE.PE 5
High Desert Rumor
Senior citizens have
taken to texting with
gusto.They even have
their own vocabulary:
BFF: Best Friend Faint-
ed
BYOT: Bring You r
Own Teeth
CBM: Covered by Medi-
care
FWB: Friend with Beta-
blockers
LMDO: Laughing My
Dentures Out
GGPBL: Gotta Go, Pace-
maker Battery Low!
Mash fresh avocados
into a creamy paste,
add salt, spread on
toasted bread. Liven it
up with various top-
pings:
Add garlic, Add fresh
This month we honor
Lana Runkel, a long
time owner at Sun-
dance Meadows Ranch
and an even longer
resident of Central
Oregon. Lana has been
) .5).1AVE2AM7 PYV
ok) A CLEAN 5)41RI:
CAN'T 1?
1 Moi,13.
PAGE 4
WE Gar )),)
CAR ANC' PRoVe
SoMEA11-1ERE
l'oGEVER
piarn
WEC'ElsYC--fi-M
'MERE -
GMER Amo Eva)
)4A9 A [WE To EAT,
VIP tO5 WI?
Lou d -
leafy herbs or your fa-
vorite herbed sauce.
Put an egg on it or
even onions or radishe
s or jalapenos, your
favorite hot sauce, or a
sprinkle of sliced cher-
(t 10 kilOW
very active on the
ranch over the years in
various ways. She
served on the Board
of Directors and
p/anned, organized and
implemented many an
ry tomatoes.The op-
tions are endless. Get
creative with
this healthy
morning pick-
me-up!
idow mon
event during holidays.
If you have not met
Lana yet, be sure to
look her up!You are
guaranteed to walk
away with a smile!
Exhibit
Page . of
• '7
or Sa1e d
Wanted: Pots and
Pans for Bunk -
d, Tra.de
house and
Benches to
tsi around
"the Pond and '
i
talong popu-
r
lar walking
paths.
11
Items we desperately
need before next
win-
ter! A
Keep
your
eye's
peeled for excellent
deals!
A Truck mounted
snow plow.
A Snow Blower
Roof Rake:
Have an old Trailer
you want to get
rid of???
; -•giKin
Exhibit
Page of
Sundance Meadows Ranch
60335 Arnold Market Road
Bend, Oregon
97702
Phone: 541-389-7003
E-mail: ranch@sundancemeadows.com
April showers, bring May flowers!
t E OFUAL
EE END SCHEDULE
May24r4-h
Fireside -gathering at xide f'Pa, e pit
May 2$th
9-,,ffia:.,`-- Meet N GreeT.t'! R = coffee and
1;00, -pre— Kids varnea- i s: ° Rec Halt
A4..iik : a- .l.c. sh y -F at
the C.so a
5.3* P x
M. -_y 2643
Upcoming Events & Activities
Board Meeting Schedule— held
at Sundance Meadows Ranch
*********************44-*******
I Oam Meeting May 18, 2019
1 Oam Meeting June 22, 2019
10am Meeting July 20, 2019
I Oam Meeting August 17, 2019
k ,r. ;` iii the I atl
I Cowboy Church at the i J."'.'`.ge.
Memorial Day Weekend !!!
Volunteers... be sure to call into
the office if you will be around on
Memorial weekend to get your
rooms reserved as this is general-
ly a full and busy weekend. Re-
member, guest reservations re-
turn to the 24 hour policy as of
this Holiday, until summer season
is over... then back to 72 hours.
Kids Corner Welcome SSM Buckaroos!
Here are some great ideas to
try out!
1. Go on a nature walk.
2. Cook over the campfire.
3. Watch for animals.
4. Make Smores.
5. Tell stories by the fire.
6. Play cards or board games.
Annual Meeting!!!
June is the yearly annual meeting
in which owners will cast their
votes to till the empty sears on
the Board of Directors. Votes
may be cast up to the beginning
of the meeting. Ballots may be
picked up at the office, or down-
loaded online,
7. Make leaf prints and rock
pets.
8. Play flashlight tag.
9. Sing campfire songs.
10. Make shadow puppets
11. Catch bugs or lizards.
12. Look at the stars.
rc
Exhibit
Page __ e of
Approximate grow site
of 1,800 sq. ft.
(changed) from eartier
application) 151 ft.
from property line
g
DESCHUTES COUNTY SHERIFF'S OFFICE
L. Shane Nelson, Sheriff
Proudly Serving Our Community
Comment from Sheriff L. Shane Nelson:
RECEIVED
DEC 17 2018
Deschutes County C00
Our concern lies in the odor, sights, sounds and set backs of the property in this
type of request and how it affects the livability of our community members; in
conjunction with the issue that marijuana is illegal on a federal level.
In addition, we are finding the calls for service related to marijuana grow
operations are increasing.
There should be no deviation or any exceptions made to any state or county
regulations on the books. No new grows or retail operations should be approved.
• Marijuana production is against Federal Law.
• There are several rural residents who have issues with smell, sound and
sight issues related to marijuana grows and how these affect quality of life.
• For the last 2 years there has been an overproduction of marijuana in our
state.
Our Sources are:
• U.S Attorney's Office for the District of Oregon, former OSU Professor Seth
Crawford, Draft OSP Marijuana Analysts report and the recent marijuana
report from the Oregon/Idaho HIDTA.
Main Office
63333 W. Highway 20
Bend, OR 97703
541-388-6655
sheriff deschutes.org
Exhibit
Page / of
Adult Jail
63333 W. Highway 20
Bend, OR 97703
541-388-6661
\Ositt,
te.-0(40 4.)
Exhibit C -
of 1'4/
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Exhibit
>> �f /1/
0
197.620
MISCELLANEOUS MATTERS
on which the notice was delivered and the
individual delivering the notice;
(b) List the locations and times at whi
the public may review the decision and firJld-
ings; and
(c) Explain the requirements for ap eal-
ing the land use decision under ORS 19 .830
to 197.845. [1981 c.748 §5; 1983 c.827 §9; 19 c.255
§1; 2011 c.280 §21
197.620 Appeal of certain com rehen-
sive plan or land use regulation • ecision-
making. (1) A decision to not adopt a
legislative amendment or a new land use
regulation is not appealable nless the
amendment is necessary to add ss the re-
quirements of a new or amend:: goal, rule
or statute.
(2) Notwithstanding the r • uirements of
ORS 197.830 (2) that a person ave appeared
before the local governme orally or in
writing to seek review of a 1 nd use decision,
the Director of the Dep•. tment of Land
Conservation and Develop ' ent or any other
person may appeal the d•. ision to the Land
Use Board of Appeals if:
(a) The local govern r ent failed to submit
all of the materials des ribed in ORS 197.610
(3) or, if applicable, 0 ° S 197.610 (6), and the
failure to submit t materials prejudiced
substantial rights of ' he Department of Land
Conservation and 7 evelopment or the per-
son;
(b) Except a provided in subsection (3)
of this section, e local government submit-
ted the mater : is described in ORS 197.610
(3) or, if appli • . ble, ORS 197.610 (6), after the
deadline spe fied in ORS 197.610 (1) or (6)
or rules of he Land Conservation and De-
velopment f ommission, whichever is applica-
ble; or
(c) T e decision differs from the proposed
changes submitted under ORS 197.610 to
such a r extent that the materials submitted
under ORS 197.610 do not reasonably de-
scrib the decision. unacknowledged provision of a comprehen-
3) Subsection (2)(b) of this section does sive plan or a land use regulation must in -
no authorize an appeal if the local govern- clude findings of compliance with land use
nt cures an untimely submission of mate- statutes, statewide land use planning goals
als as provided in this subsection. A local and administrative rules of the Land Conser-
overnment may cure the untimely sub- vation and Development Commission imple-
mission of materials by either: menting the statutes or goals that apply to
(a) Postponing the date for the final ev- the decision and that the unacknowledged
identiary hearing by the greater of 10 days Provision implements.
or the number of days by which the sub- (5) If an effective but unacknowledged
mission was late; or provision of a comprehensive plan or a land
(b) Holding the evidentiary record open use regulation fails to gain acknowledgment,
for an additional period of time equal to 10 a permit or zone change approved, in whole
days or the number of days by which the or in part, on the basis of the change does
submission was late, whichever is greater. not justify retention of the improvements
Additionally, the local government shall pro- that were authorized by the permit or zone
vide notice of the postponement or record change.
Title 19 Page 706
extension to the Department of Land Con-
servation and Development. [1981 c.748 §5a; 1983
c.827 §8; 1989 c.761 §21; 1991 c.612 §13a; 2011 c.280 §3]
197.625 Acknowledgment of compre-
hensive plan or land use regulation
changes; application prior to acknowl-
edgment. (1) A local decision adopting a
change to an acknowledged comprehensive
plan or a land use regulation is deemed to
be acknowledged when the local government
has complied with the requirements of ORS
197.610 and 197.615 and either:
(a) The 21 -day appeal period set out in
ORS 197.830 (9) has expired and a notice of
intent to appeal has not been filed; or
(b) If an appeal has been timely filed, the
Land Use Board of Appeals affirms the local
decision or, if an appeal of the decision of
the board is timely filed, an appellate court
affirms the decision.
(2) If the local decision adopting a
change to an acknowledged comprehensive
plan or a land use regulation is affirmed on
appeal under ORS 197.830 to 197.855, the
comprehensive plan or the land use regu-
lation, as modified, is deemed to be acknowl-
edged upon the date the decision of the board
or the decision of an appellate court becomes
final.
(3) Prior to acknowledgment of a change
to an acknowledged comprehensive plan or a
land use regulation:
(a) The change is effective at the time
specified by local government charter or or-
dinance; and
(b) If the change was adopted in substan-
tial compliance with ORS 197.610 and
197.615, the local government shall apply the
change to land use decisions, expedited land
divisions and limited land use decisions un-
less a stay is granted under ORS 197.845.
(4) Approval of a land use decision, expe-
dited land division or limited land use deci-
sion that is subject to an effective but
Exhibit
/ of "1---
(2017
. c
(2017 Edition)
COMPREHENSIVE LAND USE PLANNING I
195.137 to 195.145 by a county, in coordi-
nation with a metropolitan service district,
and the amendment of the designation.
(2) When the commission reviews a fir
land use decision of a metropolitan ser
district under subsection (1)(a), .(c), (d)
f this section, the commission shall
mal order in writing within 180 d
he commission votes whether to a
ecision.
(6) If requested by a local government,
the Director of the Department of Land
Conservation and Development shall issue
certification of the acknowledgment upon re-
ceipt of an affidavit from:
(a) The local government, attesting that
the change to the acknowledged comprehen-
sive plan or the land use regulation was ac-
complished in compliance with ORS 197.610
and 197.615; and
(b) The Land Use Board of Appeals, stat-
ing either:
(A) That no notice of appeal was filed
within the 21 days allowed under ORS
197.830 (9); or
(B) The date the decision of the board or
the decision of an appellate court affirming
the change to the acknowledged comprehen-
sive plan or the land use regulation became
final.
(7) The board shall issue an affidavit for
the purposes of subsection (6) of this section
within five days after receiving a valid re-
quest from the local government. [1981 c.748
§5b; 1983 c.827 §10; 1987 c.729 §6; 1989 c.761 §23; 1991
c.612 §14; 1993 c.792 §44; 1995 c.595 §25; 1999 c348 §9;
1999 c.621 §5; 2003 c.793 §3; 2011 c.280 41
197.626 Submission of land use deci-
sions that expand urban growth bound-
ary or designate urban or rural reserves.
(1) A local government shall submit for re-
view and the Land Conservation and Devel-
opment Commission shall review t'
following final land use decisions in ,the
manner provided for review of a work ask
under ORS 197.633 and subject to sub ction
(3) of this section:
(a) An amendment of an urb
boundary by a metropolitan se
that adds more than 100 acre
within its urban growth boun. •ry;
urban growth
opulation of 2,500
growth boundary
acres to the area
boundary;
growth
ce district
to the area
(b) An amendment of
boundary by a city with a
or more within its urb
that adds more than
within the urban grow
of an area as an urban
195.137 to 195.145 by a
ice district or by a city
of 2,500 or more within its
oundary;
endment of the boundary of an
e by a metropolitan service dis-
(c) A designatio
reserve under OR
metropolitan ser
with a populati
urban growth
(d) An a
urban res
trict;
(e)
urba
the
of
197.626
amendment of the boundary of an
r reserve to add more than 50 acres to
urban reserve by a city with a population
2,500 or more within its urban growth
oundary; and
(f) A designation or an amendment to the
designation of a rural reserve under ORS
Page 707
Title 19
ce
r (f)
sue a
s after
rove the
(3) When reviewing an ame dment of an
rban growth boundary unser subsection
1)(b) of this section and RS 197.295 to
97.314:
(a) At the request of . nd in coordination
ith the city, the Direc .r of the Department
f Land Conservation . nd Development shall
. arse work tasks in . manner that allows the
Department of La, d Conservation and De-
velopment to iss final orders approving or
remanding se ential phases required for
completion of the work tasks, including a
final order proving:
(A) A inventory of buildable lands and
an oppor pities analysis under a goal relat-
ing to onomic activities or an inventory of
build 151e lands and a needs analysis under a
goal -elating to housing needs.
(B) An estimation of the land need under
goal relating to economic activities.
(C) Any response to the department re-
garding approval of the estimation of land
need, including changes proposed to compre-
hensive plan designations or land use zones.
(b)(A) The director shall take action on
each sequential phase of a work task de-
scribed in paragraph (a) of this subsection
not later than 90 days after the local gov-
ernment submits the phase for review, unless
the local government waives the 90 -day
deadline or the commission grants the direc-
tor an extension.
(B) If the director does not take action
within the time period required by subpara-
graph (A) of this paragraph, the sequential
phase of the work task is deemed approved.
(c) The director may approve or remand
a sequential phase of a work task or refer
the phase of the work task to the commission
for a decision. A decision by the director to
approve or remand a phase of the work task
may be appealed to the commission.
(d) The director shall provide a letter to
the local government certifying the approval
of each sequential phase of a work task, un-
less an interested party has filed a timely
objection to the phase of the work task con-
sistent with administrative rules for con-
ducting periodic review.
(4) A final order of the commission under
this section may be appealed to the Court of
Exhibit
Page of q2
(2017 Edition)
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NOLLISOddO N3_L1INM ONllld SNO8HO13N 3ONV Nf1S
COMMUNITY DEVELOPMENT
APPEAL APPLICATION — BOARD OF COUNTY COMMISSIONERS
FEE: $250.00
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC
Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Appellant's Name (print): Keith and Kristin Adams Phone: ( 360 ) 607-3468
Mailing Address: 60135 Stirling Dr. City/State/Zip: Bend, OR 97702
Land Use Application Being Appealed: 247 -18 -000915 -AD
Property Description: T ship 18 Ra ge 13 Section 30 Tax Lot 500
Appellant's Signatur C/��/(y�/"///'jCt;64. aed �yyf)�� /((/J//y—c-- p[/{qJ/�c fate: iyj//� /5
BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND
AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR,
AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS
OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND
UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date
set for receipt of written records.
117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005
`t) (541) 388-6575 @cdd@deschutes.org (p www.deschutes.org/cd
400 SW Bluff Drive, Suite 240
Bend, OR 97702
541-585-2224
Deschutes County Community Development
Attn: Izze Liu
117 NW Lafayette Ave
Bend, OR 97703
Re: Letter of Authorization
Dear Ms. Liu:
hereby authorize Elizabeth A. Dickson of Dickson Hatfield LLP, to act on my behalf regarding
all land use matters before Deschutes County to which we are a party.
Sincerely,
71/1K,`„/ -
Keith Adams
APPELLANT:
THE DESCHUTES COUNTY
BOARD OF COMMISSIONERS
NOTICE OF APPEAL
ACCOMPANYING NARRATIVE
Keith and Kristin Adams
60135 Stirling Dr.
Bend, OR 97702
ATTORNEY: Elizabeth A. Dickson
Dickson Hatfield, LLP
400 SW Bluff Dr., Ste. 240
Bend, OR 97702
STAFF REVIEWER: Izze Liu, Associate Planner
Deschutes County Community Development Dept.
117 NW Lafayette Ave.
Bend, OR 97703
REQUEST: Appellant requests a de novo Appeal of Deschutes County
Administrative Determination, File No. 247 -18 -000915 -AD
to the Deschutes County Board of Commissioners on a de novo
basis
SUBJECT PROPERTY: Assessor's Map Designation Township 18S, Range 13E,
Section 30, Tax Lot 500, commonly referenced as
60148 Stirling Dr., Bend, OR 97702
OWNER: Gary and Lori Gore
P.O. Box 2304
Harker Heights, TX 76548
APPLICANT: Tommy Nehmzow
1044 SE Leonel Lane
Bend, OR 97702
ATTORNEY FOR
APPLICANT: Michael R. Hughes
Attorney at Law
P.O. Box 7619
Bend, OR 97708
Appeal of 247 -18 -000915 -AD by Adams
Page 1
I. INTRODUCTION
Applicant Tommy Nelunzow and property owners Gary and Lori Gore (together "Applicant")
have received conditional approval from staff to establish a marijuana production facility on Tax
Lot 500 (the "Subject Property"). This is farm parcel in the Exclusive Farm Use Zone/Tumalo-
Redmond-Bend Subzone purchased by the Gores on November 14, 2018 according to the deed
filed with the application. Applicant proposes to construct an 1,800 square foot building in
which to produce recreational marijuana. The Subject Property is listed as 17.08 acres on DIAL.
Staff has made significant interpretations of Deschutes County Code ("DCC" or "Code") criteria
applicable to this proposal without benefit of Board guidance as to the Board's meaning or intent
specific to the facts of this case and the new application of Ordinance 2018-012, an
unacknowledged land use regulation change. These include:
• ORS 197.625, the statutory provision that governs how unacknowledged land use
regulation changes are to be applied, which requires direct and specific findings of
compliance with land use statutes, statewide land use planning goals and administrative
rules of LCDC;
• Consequential direct and required application of Goal 1, Citizen Involvement and Goal
2, Land Use Planning including coordination with "affected governmental units" such as
the Deschutes County Sheriff, and Goal 3 Agricultural Lands; and
• Separation distances from a high-intensityYouth Activity Center with adjoining property
lines, so 0' from the subject property.
Appellants received notice of the application and the decision. See Tax Map, Exhibit A, for the
close proximity to the Appellants' home. (Like all exhibits referenced herein, this exhibit is
incorporated by reference.) Appellants ask this Board to accept this appeal pursuant to Order
No. 2019-014, and evaluate the substantial evidence we will provide to the Record, hearing this
matter as a de novo proceeding.
Staff's decision calculates the 150t day of Statutory time limit to fall on July 22, 2019. There is
a reasonable period of time available for the Board to consider this important matter.
II. RELEVANT CRITERIA ON APPEAL
Statewide Planning Goals 1, 2 & 3
Oregon Revised Statutes Chapters 197, 215
Department of Land Conservation Development Administrative Rules Chapter 660
Deschutes County Code:
18.16.025 EFU Special Provisions
18.116.330 Supplemental Provisions/Marijuana Production, Processing and Retailing
Appeal of 247 -18 -000915 -AD by Adams
Page 2
III. APPLICANT FAILS TO SATISFY RELEVANT CRITERIA.
A. Unacknowledged Marijuana Code (Ordinance 2018-012) requires full compliance
analysis, according to ORS 197.625(4).
Deschutes County Ordinance 2018-012, adopted in October, 2018 and effective November,
2018, is applied to the instant application, filed in December, 2018. It is an unacknowledged
land use regulation change. (It was also timely appealed to the Oregon Land Use Board of
Appeals ("LUBA"), recently withdrawn by Deschutes County.) It is still in effect. It has not
been reversed or remanded by LUBA. ORS 197.625(4), the statutory provision that governs
how unacknowledged land use regulation changes are to be applied, requires direct and specific
findings of compliance with three separate areas of state land use law: land use statutes,
statewide land use planning goals and administrative rules of LCDC. See Exhibit B, ORS
197.625, attached.
For ease of reference, ORS 197.625(4) requires:
Approval of a land use decision. ..that is subject to an effective but unacknowledged
provision of a...land use regulation must include findings of compliance with land use
statutes, statewide land use planning goals and administrative rules of the Land
Conservation and Development Commission, implementing the statutes or goals that
apply to the decision and that the unacknowledged provision inrplenrents.
As noted in the staff findings and decision issued administratively, the code changes to the
County's marijuana code are as yet unacknowledged. As a result, the determination of whether
the new code provisions comply with overarching provisions of state law must be made here. As
noted above, these include:
• Oregon Land Use Statutes
• Oregon Land Use Planning Goals
• Oregon Land Conservation and Development Commission Administrative Rules
Staff and attorney for applicant Mr. Hughes called out only state laws and statewide planning
goals as applicable. The statute requires more. The statute requires LCDC Administrative Rule
compliance as well. The requirements of this application are not met. It is properly denied.
B. The instant application does not satisfy ORS 215.243, because the agricultural use of the
land is not "open" and marijuana is not "food."
ORS 215.243 governs agricultural land use policy. It is properly cited in staff's decision at page
9. However, staff's analysis and findings are incomplete. This statewide land use provision
governing county implementation finds:
(1) Open land used for agriculture is an efficient means of conserving natural resources
that constitute an important physical, social, aesthetic and economic asset to all of the
people of this state, whether living in rural, urban or metropolitan areas of the state.
Appeal of 247 -18 -000915 -AD by Adams
Page 3
This paragraph describes why farmland receives special treatment, why it is preserved and
benefits from property tax deferral. However, it does not describe the proposed use of the Gore
farmland. The greenhouses proposed are not open. They are enclosed. The grow will not
conserve natural resources. It does not even use soil. The "assets" called out are:
Physical — This grow will be an ugly structure, not a physical asset.
Social — This grow may provide social benefit to ultimate product users, but it will serve
as a social detriment to the surrounding community.
Aesthetic — The proposed grow is a plastic hoop house without any aesthetic appeal.
Economic — The marijuana grow may provide economic benefit to the grower, but it will
be a net economic drain to all surrounding properties, both in daily income value and
capital value.
ORS 215.243(1) describes a valuable agricultural use of land. This proposal meets none of those
values. It does not qualify as an agricultural land use when the specific values are applied.
Subsection (2) of this statute is also not satisfied. In this section, the Legislature finds and
declares that:
(2) The preservation of a maximum amount of the limited supply of agricultural land is
necessary to the conservation of the state's economic resources and the preservation of
such land in large blocks is necessary in maintaining the agricultural economy of the
state and for the assurance of adequate, healthful and nutritious food for the people of
this state and nation.
The high goals set forth in this law justify why agricultural land deserves special protections.
But this language has nothing to do with a recreational marijuana grow. Marijuana may have be
legislatively deemed a "crop," but it is not food. And is it certainly not "healthful and
nutritious." The instant application does not meet the description of the agricultural uses
protected under this and related statutes. It does not meet the definition. It is properly denied.
The direct applicability of these state legal requirements has other consequences too, particularly
regarding the Statewide Planning Goals, the foundation of Oregon's Land Use Laws.
C. Statewide Planning Goals 1, 2, and 3 must be satisfied directly.
Because Deschutes County's marijuana code, as revised, is unacknowledged, and because
Deschutes County has chosen to apply the new code effective November, 2018, each quasi-
judicial land use review must specifically prove compliance with applicable state law. Goals 1,
2, and 3 directly pertain to the instant application.
1. Statewide Planning Goal 1 Requires Citizen Involvement
Staff correctly addresses this criterion on Page 10 of the Findings and Decision rendered below.
She correctly called out the notices provided. She identified the comments received (there were
93 by our count, and all were negative). However, there is a difference between allowing
citizens to speak or write, and involving them in the decision-making process. Here, neighbors
wrote about the closeness of the proposed greenhouse to the core recreational area for Sundance
Appeal of 247 -18 -000915 -AD by Adams
Page 4
Subdivision and Sundance Meadows. They described how they used the paved areas closest to
the grow site for children's play activities on both paved surfaces and dry grass for all forms of
ball and group play. They described picnic tables put out every Memorial Day for the summer
season, allowing families to spend an entire day swimming and playing and picnicking. Staff's
review of those comments was to conclude that they were largely irrelevant to the instant
application. This is not involvement, because staff did not reflect those comments in the decision
made.
See Exhibit C, July 4, 2016 Photos of Festivities at Sundance. These photos (faces redacted)
illustrate the many activities taking place at Sundance. The Board has previously found photos
of actual activities and participants helpful in determining facts of use in surrounding areas. We
offer these for this purpose.
The residents of Sundance Subdivision (See lots depicted in Exhibit A) and the guests and staff
of Sundance Meadows (See open areas to east and north of lots in Exhibit A) have taken the time
to make extensive comments to the County regarding this application, proposing to build a grow
less than 400' from their Recreation Area. They strongly oppose this application. They deserve
to be involved in this decision, and this law requires they be able to participate.
2. Statewide Planning Goal 2 Requires Coordinated Land Use Planning
Staff correctly identified Goal 2 as applicable here. She noted that since the subject property was
designated "agriculture," the Goal was met.
The analysis provided does not apply the critical concept of this goal: Coordination. The Goal
requires coordination with "affected governmental units." These are units with responsibilities
within the area included in the implementation measure.
The Deschutes County Sheriff is such an "affected governmental unit." Sheriff Shane Nelson
and his deputies patrol Sundance Meadows and Sundance Subdivision. Therefore, Deschutes
County's planning decisions must be coordinated with Sheriff Nelson. Sheriff Nelson has filed
comments on this application. His conclusion, "No new grows or retail operations should be
approved." See Exhibit D, attached.
State court interpretation of Goal 2 requires such decisions to be "coordinated" such that the
needs of all levels of governments have been considered and accommodated as much as possible.
ORS 197.015(5) incorporates the definition. See Rajneesh Travel Corporation v. Wasco County,
LUBA No. 85-012 through 85-016, 13 Or LUBA 202, 210 (1985).
Our courts have held that compliance with this second prong of Goal 2 can only be demonstrated
by adopting findings that respond to the concerns raised by the other governmental entities. This
means that Sheriff Nelson's comments can no longer be waved aside. In this marijuana appeal,
applying unacknowledged code, Statewide Planning Goal 2 applies. Sheriff Nelson's continents
must be considered and addressed. His comments are not touched upon in staff's findings
regarding Goal 2.
Appeal of 247 -18 -000915 -AD by Adams
Page 5
Neither has applicant addressed Sheriff Nelson's concerns. The application, as presented, does
not address this critical governmental entity's objection to the proposed use. It is properly
denied.
3. Statewide Planning Goal 3 Requires Preservation of Agricultural Lands
Staff references setbacks in the application plot plan, noting they are 150' away from all property
boundaries. This finding, while true, does not address the core value of Goal 3: Preservation of
resource lands for resource -dependent uses.
Deschutes County Comprehensive Plan ("Comp Plan"), Section 2.2, implements Statewide
Planning Goal 3. Goal 3 focuses on,
"lands which are suitable for farm use taking into consideration soil fertility, suitability
for grazing, climatic conditions.... "
This language is cited specifically in the Comp Plan as well. Farmland, such as the subject
property, is set aside for "farm use" dependent on soils. However, the subject application has not
and will not use the soils on the Subject Property for the proposed use. It is not "farming" based
on use of soils, beyond providing a surface for horizontal support of growing trays and black
plastic pots filled with "growing medium."
Applicant, then, is arguing that Applicant's desire for profit should supersede the Deschutes
County Goals detailed in the Comp Plan (and Statewide Planning Goal 3) in the five -decade-long
effort to preserve resource lands for soil -dependent uses. Indoor marijuana can be grown in an
obsolete industrial warehouse, an abandoned commercial strip -mall, or even on an
environmentally contaminated brownfield. It is not the best use of our resource land to take up
farmland with such a use. And Applicant's desire for personal profit shouldn't change that.
It is this sense that every piece of land should be put to its highest and best use that navigates
most of our land use decisions in Oregon. Resource lands are to be preserved for resource -
dependent uses according to Goal 3. This application is not a resource -dependent use.
Neither applicant nor staff has addressed, or satisfied, Statewide Planning Goal 3. This
application as submitted, should be denied.
C. Separation distances from a high-intensityYouth Activity Center with adjoining
property lines, so 0' from the subject property.
DCC 18.116.330 B.6.a.iv. specifies the separation distances which must be observed when siting
a marijuana production facility near certain existing uses determined to be sensitive by this
Board.
6. Separation Distances. Minimum separation distances shall apply as follows:
a. The applicant property line shall be located a minimum of 1,320 feet from: * * * *
iv. A youth activity center.* * * *
b. For purposes of DCC 18.116.330(B)(6), all distances shall be measured from the lot
line of the affected properties listed in DCC 18.116.330(B)(6) if the use is:
i. Pending a local land use decision.
Appeal of 24748 -000915 -AD by Adams
Page 6
1. Distance between the two properties
This code provision requires that any proposed marijuana grow property boundary be located at
least a quarter mile from the boundary of a youth activity center. In this case, the boundaries
touch. See Exhibit A. See Exhibit E, close depictions by aerial photographs showing the
proximities of the two parcels of land as well as related improvements for perspective. (Please
note "north" is marked in the margins of each of the three pages, as some are landscape and
others are portrait orientation.) Because there are 0 feet between the subject property and the
youth activity center property, proximity is determined.
2. Is Sundance Recreational Area a "Youth Activity Center?"
What remains to define is whether the Sundance Family Recreation Area is a "Youth Activity
Center" as the Board defines its use of that term. Staff distinguishes the Sundance facilities
because they are not "organized, supervised, extracurricular recreation." She then finds that the
Sundance facilities do not constitute a youth activity center.
We ask this Board to consider carefully the nature and extent of activities that take place in this
Area. Attached is Exhibit F, 10 photos taken the week before Memorial Day showing the sign
to the pool area, the pool area, the paved recreation areas used for basketball, dodgeball, tennis
and other group sports. See the open area beside the fence with the subject property where
picnic tables are placed as weather permits (not yet placed at time of photo — near the parked
vehicles).
Exhibits G and H are examples of recent publications to all Sundance Meadows guests and
Sundance Subdivision residents. They describe a summer filled with activities throughout the
common areas, with organized swims taking place daily at the pool throughout the summer.
In addition, see affidavits of Beth Leslie (Exhibit I) and Ron Hauser (Exhibit J) describing their
respective duties as staff of Sundance. Beth Leslie is the pool host and lives in an RV through
the summer at the pool. She describes family use of the Recreational Area for three or more
hours per day, both with and without adult supervision. Adult supervision is required for
swimmers. She describes 50-75 people using the Recreation Area at a time.
Ron Hauser is a property owner in Sundance Subdivision and also head of security at Sundance.
He is looking forward to Sundance hosting the Boy Scout Jamboree of 1,100 estimated scouts at
Sundance this summer, as his affidavit attests.
These affidavits and photographs and publications are provided to provide this Board with an
accurate depiction of the youth -oriented activities that have taken place at Sundance for some 40
years and are planned to continue into the future. As these various pieces of evidence describe,
kids are often unsupervised within the Sundance Area, whether riding horses, playing various
ball games, or enjoying a picnic at one of the tables provided by the fence next to the proposed
grow property. As the photos show, the septic work already in progress on the Gore property is
easily visible from the fence line.
Staff mistakenly perceives Sundance to be entirely temporary housing by RV users. In reality,
both Sundance Meadows and Sundance Subdivision have access to the Recreational Area.
Appeal of 247 -18 -000915 -AD by Adams
Page 7
Exhibit A shows the proximity of both sides of the development built around the core common
area.
Only the Board can determine what it interprets to be a "Youth Activity Center." The Waveseer
decision provides guidance, but as staff's decision shows, that interpretation is best made by the
Board. See staff decision, pages 15-17. We ask that this interpretation be made with both the
exhibits submitted and after reviewing the comments in the record from 93 objecting neighbors,
as mapped by home locations on Exhibit A. Their involvement in this decision will be most
appreciated.
The submitted application does not meet Code requirements or larger considerations of
applicable state law unique to this application's "unacknowledged code" status. Appellants ask
this Board to accept this appeal, hear the evidence de novo and after due consideration, deny the
subject application.
Sincerely,
ELIZABETH A. DICKSON
Of Attorneys for Appellants
Exhibits:
A - Tax Map
B - ORS 197.625
C - July 4th, 2016 Photos
D - Sheriff Nelson's Submittal to Record
E - Aerial Photos of Subject Property and Sundance Property
F - 10 Photos of Pool and Recreational Area bordered by Subject Property
G - Sundance Publication Map for Guests
H - Sundance May 2019 (latest) Newsletter
I - Affidavit of Beth Leslie, Pool Supervisor
J - Affidavit of Ron Hauser, Resident and Head of Security
Appeal of 247 -18 -000915 -AD by Adams
Page 8
Draft Decision Matrix: 247-19-000431-A
1 OAR 660-015-0000(2). Plans — as used here compasses all plans which guide land -use decisions, including both comprehensive and single -purpose plans of cities, counties, state and federal agencies and special districts.
247-19-000178-A
Page 1 of 2
Topics That Address Approval Criteria
No.
Topic/Issue
Summary of Appeal Documents
Staff Comments
Separation from Youth Activity Center
DCC 18.116.330(6)(6)
•
•
•
•
•
•
Sundance Meadows is a youth activity center (YAC) which is located adjacent to the subject property.
The proposed use does not meet the separation requirements from a YAC (1,320 feet).
Sundance Meadows includes recreational amenities all year round.
Appellant provided photos of the pool area, rec. courts (basketball, dodgeball, other group sports), tennis court.
Appellant provided an affidavit from Beth Leslie (pool host).
o "Families customarily come to the Recreational Area to swim, play games and picnic, usually for three
or more house per day and also accompany youth swimmers".
o "Horse trails also travel through the edge of the Recreation Area. Children often ride without parents
on the trails".
o "During holiday weekends, 50-75 people are often using the Recreation Area at a time".
Appellant provided an affidavit from Ron Hauser (security).
o "This summer, we will host the Boy Scout Jamboree, and expect 1,100 Boy Scouts".
o "We provide swimming, activity ball games and equipment, and picnic areas along the fence next to
the Gore proposed grow site".
o "Swimming attracts 6-18 kids at any given time. Adults must accompany the youths while swimming".
o "We also host organized swims at the pool, currently adults 9-10 am, and all families 10 am to 9 pm".
•
•
•
Youth Activity Center is not defined in the Deschutes County Code.
Staff refers to the Waveseer decision and the Merriam -Webster
definitions of "activity", "youth", and "center".
Staff found that there is no evidence in the record that organized,
supervised, and extracurricular recreation directed towards the
young occurs on a regular basis at the ranch.
2
ORS 215.243(1): Open land used for agricultural use is an
efficient means of conserving natural resources that constitute
an important physical, social, aesthetic and economic asset to
all of the people of this state, whether living in rural, urban or
metropolitan areas of the state.
•
The application does not satisfy ORS 215.243 because the agricultural use of the land is not "open" and the
proposed use will not conserve natural resources.
•
Staff interprets the proposed use as an agricultural use complying
with this section but also finds that ORS 215.243 is a guide for EFU
zoning designation.
3
ORS 215.243(2): The preservation of a maximum amount of the
limited supply of agricultural land is necessary to the
conservation of the state's economic resources and the
preservation of such land in large blocks is necessary in
maintaining the agricultural economy of the state and for the
assurance of adequate, healthful and nutritious food for the
people of this state and nation.
•
The appellant states that the application does not satisfy ORS 215.243 because marijuana is not "food".
•
Staff interprets the proposed use as an agricultural use complying
with this section but also finds that ORS 215.243 is a guide for EFU
zoning designation.
4
Statewide Planning Goal 1: Citizen Involvement
•
Staffs response is incomplete. Staff did not consider the public comments regarding the YAC in the decision.
•
See comments related to Issue Item 1.
5
Statewide Planning Goal 2: Land Use Planning
•
Staffs response is incomplete. Comments provided by Sherriff Shane Nelson must be considered and addressed.
•
Goal 2 relates to the establishment of a land use planning process
and policy framework. Prior to the adoption of a land use plan',
coordination with the affected governmental units are required. The
1 OAR 660-015-0000(2). Plans — as used here compasses all plans which guide land -use decisions, including both comprehensive and single -purpose plans of cities, counties, state and federal agencies and special districts.
247-19-000178-A
Page 1 of 2
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Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Monday Meeting of June 24, 2019
DATE: June 20, 2019
FROM: Tanya Saltzman, Community Development,
TITLE OF AGENDA ITEM:
Preparation for Public Hearing: Reconsideration of Marijuana Text Amendments
ATTENDANCE: Tanya Saltzman
SUMMARY: The Board of County Commissioners will prepare for a July 3, 2019 public
hearing for the reconsideration of the County's marijuana text amendments. Ordinance 2018-
012 was adopted on October 24, 2018; the County received a Notice of Intent to Appeal
(NITA) on November 13, 2018, and a Petition for Review to the Land Use Board of Appeals
(LUBA) was filed by twelve petitioners on February 12, 2019. The County subsequently filed a
Notice of Withdrawal of the ordinance and is currently undergoing a reconsideration of the text
amendments.
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Tanya Saltzman, Associate Planner
DATE: June 19, 2019
SUBJECT: Reconsideration of Marijuana Text Amendments
I. OVERVIEW OF PROCESS TO DATE
On June 1, 2016, Deschutes County adopted Ordinance 2016-019, and on June 15, 2016, Ordinances
2016-013, 2016-014, 2016-015, 2016-016, 2016-017, and 2016-018, implementing comprehensive
land use amendments governing marijuana production, processing, and retailing in unincorporated
Deschutes County (the "Original Marijuana Regulations"). The Original Marijuana Regulations were
not appealed to the Land Use Board of Appeals ("LUBA"), and thereby were deemed "acknowledged"
pursuant to OAR 660-018-0085 after the County provided notice of the ordinances are required by
state law.
After adopting the Original Marijuana Regulations, the Board of County Commissioners (the "Board,"
or individually, the "Commissioners") indicated an intent to consider technical correction after gaining
additional experience regulating the entirely new marijuana industry and land use. As such, the Board
directed staff to prepare a Marijuana Regulatory Assessment sixteen months after the Original
Marijuana Regulations took effect, summarizing marijuana applications received between September
2016 and September 2017. The draft Marijuana Regulatory Assessment was released on April 2, 2018.
Since that date, the Board conducted eight work sessions to discuss requisite technical corrections
and clarifications. Informed by the work sessions and their experiences adjudicating quasi-judicial
appeals of marijuana land use applications, the Commissioners requested that County staff prepare
specific draft text amendments designed to provide additional clarity to both the public and the
growing marijuana industry (the "Marijuana Text Amendments"). Staff's proposed amendments were
then first formally presented to the Planning Commission for review on August 9, 2018.1
1 https://deschutescountyor.igm2.com/Citizens/Detail_Meeting.aspx?ID=2047
The Board subsequently conducted a public hearing on August 28, 2018, to consider Ordinance 2018-
012, formerly adopting the Marijuana Text Amendments as reviewed by the Planning Commission.
Public comments received during the open record period, August 29 through September 14, 2018,
were provided to the Board for a work session held on September 24, 2018 to review options for next
steps.2 The Board began deliberations on the proposed amendments on October 1, 2018,3 and
continued them on October 17, 2018.4 Informed by the public process and comments, the Board
directed staff to make further edits. Staff offered a revised version of Ordinance 2018-012 for
consideration of first reading on October 24, 2018. And, first and second reading were ultimately
adopted by emergency on October 24.
Differing from the Original Marijuana Regulations, twelve petitioners filed a Notice of Intent to Appeal
with LUBA challenging the County's new "Marijuana Text Amendments" on November 13, 2018. The
petitioners filed their Petition for Review on February 12, 2019, arguing new and expanded issues that
were not previously raised before the Board. As such, on February 28, 2019, Deschutes County filed
with LUBA a Notice of Withdrawal to thereby provide the petitioners the opportunity to raise their new
arguments to the Board in a continued public process. This continued public process will also provide
both the County and other proponents of the Marijuana Text Amendment the opportunity to
augment the record and respond to the petitioners' assignments of error, thus ensuring a more
thorough local vetting before the petitioners' arguments are considered by LUBA on appeal.
At the completion of the continued public process, the Board may repeal the Marijuana Text
Amendments, amend the Marijuana Text Amendments, or take no action in which case the Marijuana
Text Amendments remain unaltered. Assuming the petitioners proceed with their LUBA appeal, any
documents and testimony provided to the Board during the continued public process (such as this
memorandum) will be added to the record before LUBA.
Typically, LUBA grants 90 days for reconsideration of an ordinance, but owing to the complex and
controversial subject matter, Deschutes County submitted a request to LUBA for additional time -
180 days instead of 90. LUBA granted this request in an order dated March 7, 2019. The final deadline
for a decision on the reconsideration of the ordinance is September 3, 2019.
A work session with the Board is scheduled for June 24, 2019. A public hearing with the Board is
scheduled for July 3, 2019.
II. SUMMARY OF PETITIONERS' BRIEF
The petitioners presented four assignments of error (two of which include sub -parts), which are
summarized below. The summaries also include brief descriptions of perceived issues with the
petitioners' arguments as noted by County staff. To aid the productivity of the upcoming continued
2 https://deschutescountyor.igm2.com/Citizens/FileOpen.aspx?Type=1&ID=1934&Inline=True
https://deschutescountyor.igm2.com/Citizens/Detail_Meeting.aspx?ID=1917
4 https://deschutescountyor.igm2.com/Citizens/Detail_Meeting.aspx?ID=2059
Page 2 of 9
public process beginning on July 3, County staff is encouraging both the petitioners and other
proponents who support the Marijuana Text Amendments to comprehensively address these issues.
Assignment of Error 1: The County Exceeded its Jurisdiction
a. Marijuana is a Legal Farm Crop Under Oregon Law
The petitioners argue that the Oregon legislature classified marijuana as a farm crop, and thus
when grown in a farm zone, it may not be more heavily regulated than other crops under the
Right to Farm ordinance (i.e. ORS 30.930 et seq.). They maintain that by citing concerns about
compatibility, the County is seeking to ensure protection of non-farm uses in Exclusive Farm Use -
zoned land, which goes against the purpose of the EFU land designation—to preserve land for
agricultural purposes and limit nonfarm uses.
However, the Petition for Review filed with LUBA failed to address the following issues:
• Collateral Attack. The petitioners fail to explain how the First Assignment of Error is not an
impermissible collateral attack on the Original Marijuana Regulations. Because they were
not appealed when adopted, it seems that facial challenges to the Original Marijuana
Regulations, an acknowledged text amendment, are no longer justiciable by LUBA. (This
issue applies to the majority of the sub -assignments constituting the First Assignment of
Error, but is not repeated below to ensure the brevity of this memorandum.)
• Opt -Out. The petitioners fail to explain how this argument is anything other than a critique
of state statutes and regulations regarding marijuana, most of which are necessary
because marijuana is still federally illegal pursuant to the Controlled Substances Act. If the
County's Marijuana Text Amendments violate Oregon's Right to Farm laws, then how does
ORS 4756.968, which allows counties to opt -out, not also violate Right to Farm laws? How
does OLCC's numerous and comprehensive regulations not violate Right to Farm laws?
(This issue applies to the majority of the sub -assignments constituting the First Assignment
of Error, but is not repeated below to ensure the brevity of this memorandum.)
• Legislative History. The petitioners fail to cite any legislative history in the record that
supports their contention that Oregon's Right to Farm laws are an exception to, or
otherwise curtail, ORS 475B.928 authorizing the County to adopt reasonable "time, place,
and manner" land use regulations.
b. The Ordinance Conflicts with Goal 3
The petitioners state that the ordinance violates Statewide Goal 3, To Preserve and Maintain
Agricultural Lands, by "effectively removing a viable crop, perhaps one of the only crops that could
be grown on some of these lands, from the EFU zone." The petitioners further maintain that the
removal of marijuana production from allowable uses in the MUA-10 zone is also a violation of
Goal 3.
Page 3 of 9
However, the Petition for Review filed with LUBA failed to address the following issues:
• Inherent Differences. In the context of Goal 3, petitioners fail to account for the inherent
differences distinguishing most marijuana production from other agriculture operations.
As noted by LUBA, marijuana production "can occur equally as well on a parking lot as it
could on 80 acres of high value farmland"' because marijuana production is often "entirely
separate and disconnect from the land." See LandWatch Lane County v. Lane County, 77 Or
LUBA 368, 373 (2018).
• MUA-10. The petitioners fail to explain how land zoned MUA-10 falls under the purview
of Goal 3.
c. The Ordinance Conflicts with the Farm Act
The petitioners maintain that the ordinance alters state law in that it conflicts with the Farm Act,
which protects farming practice on lands zoned for farm use from any private right of action or
claim for relief based on nuisance or trespass. They state that the ordinance creates a private
cause of action for nuisance and trespass specifically against marijuana farmers in the context of
noise and odor from marijuana farming activities.
However, the Petition for Review filed with LUBA failed to address the following issue:
• Relocated Provision. The petitioners fail to explain how an existing provision relocated
from the previous DCC 18.116.330(B)(10)(c) to a new subjection DCC 18.116.330(6)(19)
"attempts to create a new nuisance right of action." Petitioners further fail to explain
how the aforementioned provision conflicts with state law when, the provision's own
terms condition applicability on first complying with state statutes.
d. The Ordinance Does Not Comply with the Plan
The petitioners note that the Deschutes County Comprehensive Plan requires EFU ordinances to
preserve, protect and support current and future farming in EFU zones, and state that to the
contrary, the ordinance essentially removes a crop that is contributing to the local agricultural
economy from a large portion of EFU land, and makes it "extremely difficult, if not impossible" to
continue operations or expand. The petitioners state that this is inconsistent with the
Comprehensive Plan.
However, the Petition for Review filed with LUBA failed to address the following issues:
• Permit History. The petitioners fail to account for the 45 approved marijuana
production facilities to date on EFU land compared to only 7 denials under the Original
Marijuana Regulations, nor did the petitioners explain how the Marijuana Text
Amendments will alter those trends.
Page 4 of 9
• Diesel v. Jackson County. The petitioners' only citation under this sub -assignment of
error is to LUBA's decision in the aforementioned case (74 Or LUBA 286 (2016)), which
considered Jackson County's prohibition on marijuana production in its rural
residential zones. The petitioners neglect to cite or discuss the Court of Appeal's
subsequent decision in the same matter which more directly considers Jackson
County's EFU lands (284 Or App 301 (2017)).
e. The Ordinance Imposes Unreasonable Time, Place, and Manner Regulations
The petitioners argue that the issues listed below and the ordinance as a whole are unreasonable.
ORS 4756.456 allows counties to impose reasonable conditions on the manner in which a
marijuana producer may produce marijuana. The petitioners argue that the ordinance drastically
reduces the amount of land available for production as well as removes one zone (MUA-10)
entirely from available production land. The petitioners further state that the County singled out
marijuana production to uphold a standard of having zero impact on neighbors, which they argue
is not true to the meaning of land use "compatibility" and is considered to be unreasonable.
Further arguments concerning specific aspects of the amendments follow.
1. Buffer/Separation Distances
The petitioners argue that the increased separation distances essentially push farming away
from numerous other uses, serving to hurt the agricultural activity, reduce competitiveness
and market access. They argue that no findings were presented supporting the specific
separation distances. In addition the petitioners state that there is no identified need for the
regulation of distance from federal land or from jurisdictions that have opted out of the
marijuana program. Lastly, the petitioners argue that the separation distances function as a
cap of marijuana producers, in absence of the ability to impose an outright cap.
2. Light, Noise, and Odor Regulations
The petitioners argue that the light, noise, and odor regulations all exceed the limits of
"reasonable" regulations. They maintain that it is unreasonable to require noise and odor
abatement plans to protect neighbors from a farm crop in a farm zone, and noted that the
existing regulations concerning these issues were working. The petitioners note that an
engineering firm, ColeBreit Engineering, testified that the County's odor and noise regulations
were essentially an impossible standard to meet as written.
3. Inspections and Annual Reporting
The petitioners maintain that the revised annual inspections procedures require applicants to
waive their privacy rights, and that the searches, which assume that marijuana production
applicant will not comply with the law, are conducted without probable cause.
Page 5 of 9
However, the Petition for Review filed with LUBA failed to address the following issues:
• Public Testimony. With regard to buffers and separation distances, the petitioners fail
to account for the persuasive public testimony received during quasi-judicial hearings
preceding the Board's consideration of the Marijuana Text Amendments offered by
federal land agencies, municipalities, and residents concerned about concentrated
impacts to their neighborhoods from numerous production facilities.
• Pre-existing standard. With regard to light, noise, and odor, the petitioners fail to
explain how clarifying pre-existing standards without substantively changing the
standard nonetheless makes the pre-existing standard unreasonable. The petitioners
further fail to explain how their argument is not contradicted by the 49 production
applications approved to date, many of which were approved based on assurances of
code compliance made by the same engineers now concerned that code compliance
is impossible.
• Administrative Search Doctrine. With regard to the annual inspections, the petitioners
fail to explain how the Marijuana Text Amendments do anything other than codify the
County's pre-existing practice. More importantly, the petitioners do not explain how
the County's annual inspections do not fall under the doctrine of "administrative
searches," a known exception to the prohibition on warrantless searches recognized
by both state and federal case law.
Assignment of Error 2: The County Failed to Follow Required Procedures in Adopting the
Ordinance on an Emergency Basis
The petitioners state that the County failed to follow required procedures in adopting the ordinance
on an emergency basis, and that the findings do not address the basis—ostensibly to benefit the
health, safety, and welfare of County residents—for the emergency declaration.
However, the Petition for Review filed with LUBA failed to address the following issues:
• Standard Practice. The petitioners fail to explain how the County's emergency clause
is inconsistent with standard practice throughout Oregon.
• Procedural Errors. While complaining that the County's emergency adoption of the
Marijuana Text Amendment was procedurally in error, the petitioners fail to account
for their own procedural errors underpinning the second assignment of error.
Specifically, the Petition for Review failed to state that the second assignment of error
was preserved or was not required to be preserved pursuant to OAR 661-010-
0030(4)(d). Likewise, the petitioners failed to demonstrate that the County's alleged
procedural error "prejudiced the substantial rights of the petitioner[s]" as required by
ORS 197.835(9)(a)(B). Regardless, the upcoming public process provides the County
Page 6 of 9
the opportunity to cure this alleged procedural error in the same manner the
petitioners will now have the opportunity to cure their procedural errors.
Assignment of Error 3: The Ordinance is Not Factually Supported
The petitioners note that arguments supporting legislative decisions must be based on substantial
evidence contained in the full record, rather than a belief concerning "need" or "reasonableness."
Statewide Goal 2 requires that planning decisions and actions have an adequate factual base. They
maintain that the County ignored selected staff findings and testimony from stakeholders concerning
the difficulty of complying with the new standards, and as such did not provide substantial evidence.
However, the Petition for Review filed with LUBA failed to address the following issues:
• Confused Citations. Although attempting to distinguish between legislative and quasi-
judicial decision at the outset of the third assignment of error, the petitioners
nevertheless mix case law relevant to the two types of decision and thereby failed to
demonstrate that the County's original findings were inadequate. Also relevant to the
legislative versus quasi-judicial distinction, the Petition for Review fails to account for the
heightened standard of review applicable to facial challenges. To succeed, the
petitioners have the arduous task of demonstrating that the Marijuana Text
Amendments "are categorically incapable of being clearly and objectively applied
under any circumstances where they may be applicable." See Rogue Valley Assoc. of
Realtors v. City of Ashland, 158 Or App 1, 4 970 P2d 685 (1999).
• Procedural Errors. Similar to the second assignment of error, the Petition for Review
again failed to state that the third assignment of error was preserved or was not
required to be preserved pursuant to OAR 661-010-0030(4)(d). Even if the County's
original findings were lacking, the upcoming public process provides the opportunity
to bolster those findings in the same manner the petitioners will now have the
opportunity to correct their procedural error.
Assignment of Error 4: The County Made an Unconstitutional Decision in Enacting the
Ordinance
a. The Ordinance Violates Federal Equal Protection under the 14th Amendment of the U.S.
Constitution
The petitioners argue that the ordinance violates the Equal Protection Clause of the 14th
Amendment of the United States Constitution. The petitioners further argue they belong to a
class of marijuana producers, processors, and wholesalers—specifically those participating in
Oregon's regulated recreational marijuana market. The petitioners argue that this class alone
is subject to unreasonable regulations, thereby renewing early arguments that the Original
Marijuana Regulations are not reasonable "time, place, and manner" restrictions. Further, the
Page 7 of 9
petitioners maintain that the adoption of the ordinance lacked a rational basis because it was
for extra -statutory purposes, namely to "impermissibly cap marijuana production."
However, the Petition for Review filed with LUBA failed to address the following issues:
• Collateral Attack. Similar to the first assignment of error, the petitioners fail to explain
how the fourth assignment of error is anything other than an impermissible collateral
attack on the acknowledged Original Marijuana Regulations. (This issue applies to the
majority of the sub -assignments constituting the fourth assignment of error, but is not
repeated below to ensure the brevity of this memorandum.)
• Controlled Substances Act. Again similar to the first assignment of error, the
petitioners fail to explain how this argument is anything other than a critique of the
federal Controlled Substances Act which significantly influenced the unique regulatory
environment put in place by the State of Oregon and which in turn specifically
authorized the Original Marijuana Regulations adopted by Deschutes County. It is not
clear how a self-selecting group of individuals electing to participate in an activity illegal
under federal law become a class deserving protection under the federal constitution.
If the County's Original Marijuana Regulations are unconstitutional, then how are other
federal and state laws that, for example, negatively impact the petitioners' income
taxes and access to banking not equal unconstitutional?
b. The Ordinance Violates State Privileges and Immunities under Article 1, Section 20 of the
Oregon Constitution
The petitioners argue that the ordinance impermissibly grants a privilege (in this case, the
right to bring a nuisance claim) to a specific class—that is, neighbors of marijuana
production, processing, and wholesale operations. Neighbors of other farm operations in
the same zone are not allowed to bring nuisance claims against their neighbors due to
Right to Farm protections, and as such, this creates a privileged class.
However, the Petition for Review filed with LUBA failed to address the following issue:
• Code Enforcement. The petitioners fail to cite anything in the record that demonstrates
the veracity of their claim, i.e. that the Marijuana Text Amendment empowers
neighbors through a civil nuisance action to force the shuttering of a marijuana
productions. Instead, the petitioners are likely confused by the Original Marijuana
Regulation's usage of what is best described as a "nuisance -like standard" to limit odor
permitted to emit from a marijuana production facility. Violation of that standard
would be addressed through the County's code enforcement process and not pursuant
to civil nuisance complaint. Further, as previously mentioned, the Marijuana Text
Amendments clarify and relocate a pre-existing provision that only allows "private
actions alleging nuisance or trespass" when so authorized by "applicable state
statutes."
Page 8 of 9
c. The Ordinance is Arbitrary and Capricious in Violation of Federal Substantive Due Process
Rights
The petitioners argue that the County must establish that it had a rational basis for
applying the ordinance; they continue by renewing yet again earlier arguments previously
raised in the Petition for Review, and likewise previously addressed in this memorandum.
III. PUBLIC COMMENT
As of the time of submittal of this memorandum and since the County submitted the Notice of
Withdrawal, two written public comments have been received from the following parties and are
included as attachments to this memorandum:
• Stephanie Marshall, Bennu Law (successor entity to Clifton Cannabis Law LLC)
• Jenny Mueller, Cannabis Nation Inc.
IV. NEXT STEPS
A public hearing with the Board of County Commissioners is scheduled for July 3, 2019.
Attachments:
A. Marijuana Text Amendments (redlined) - adopted October 24, 20185
B. Public Comment: Marshall
C. Public Comment: Cannabis Nation
5 The attached text amendments utilize redlines to indicate adopted changes that deleted, replaced, or otherwise altered text
from the Original Marijuana Regulations only. The redlined text amendments that were included as attachments to
Ordinance 2018-012 also include interim edits that were considered—but not necessarily adopted—during the public
process, in addition to the final adopted changes.
Page 9 of 9
ATTACHMENT A
Chapter 9.12. RIGHT TO FARM
9.12.020. Purpose and Scope.
* * *
9.12.020. Purpose and Scope.
A. It is the purpose of DCC 9.12 to protect farm and forest -based economically productive activities of
Deschutes County in order to assure the continued health, safety and prosperity of its residents. Farm and
forest uses sometimes offend, annoy, interfere with or otherwise affect others located on or near farm and
forest lands. Deschutes County has concluded in conformance with ORS chapter 30 that persons located
on or near farm and forest lands must accept resource uses and management practices.
B. DCC 9.12 is intended to limit the availability of remedies based on nuisance or trespass, rights of action
and claims for relief and issuance of citations for violations over which Deschutes County has jurisdiction,
when they otherwise would either have an adverse impact on farm and forest uses that Deschutes County
seeks to protect, or would impair full use of the farm and forest resource base within Deschutes County.
C. Scope. DCC Chapter 9.12 (The Deschutes County Right To Farm Ordinance) applies to all crops.
However, subject to ORS 475B, Cannabis regulation, the governing body of a county inay adopt
ordinances that impose reasonable regulations on marijuana production, processing, wholesaling, and
retailing.
(Ord. 2018-012 2018; Ord. 2003-021 §21, 2003; Ord. 95-024 §2, 1995)
Chapter 9.12 1 (04/2003)
ATTACHMENT A
Chapter 18.24 REDMOND URBAN RESERVE AREA COMBINING ZONE
18.24.030. Conditional Uses Permitted; Prohibition.
18.24.030. Conditional Uses Permitted; Prohibition.
A. Subject to the prohibitions provided for in DCC 18.24.030(B), Uses uses permitted conditionally in the
RURA Redmond Urban Reserve Area Combining Zone shall be those identified as conditional uses in
the underlying zoning districts. Conditional uses shall be subject to all conditions of those zones as
well as the requirements of this chapter.
B. The following uses are prohibited and not permitted in the Redmond Urban Reserve Area Combining
Zone:
1. Marijuana production; and
2. Marijuana processing_
(Ord. 2018-012 §2, 2018; Ord. 2005-024 §1, 2005)
Chapter 18.24 1 (2/2008)
Chapter 18.116. SUPPLEMENTARY PROVISIONS
18.116.330
18.116.340
* * *
A—ACHME=N..Td A
Marijuana Production, Processing, and Retailing
Marijuana Production Registered by the Oregon Health Authority (OHA)
18.116.330. Marijuana Production, Processing, and Retailing
A. Applicability. Section 18.116.330 applies to:
1. Marijuana Production in the EFU, MUA 10, and RI zones.
2, Marijuana Processing in the EFU, MUA 10, TeC, TeCR, TuC, Tul, RI, and SUBP zones
3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, TuI, RC, RI, SUC, SUTC, and SUBP
zones.
4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones.
B. Marijuana production and marijuana processing. Marijuana production and marijuana
processing shall be subject to the following standards and criteria:
1. Minimum Lot Area.
a. In the EFU and MUA 10 zones, the subject legal lot of record shall have a minimum
lot area of five (5) acres.
2. Indoor Production and Processing.
a. In the MUA 10 zone, marijuana production and processing shall be located entirely
rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non rigid
structures is prohibited.
b.a._In the EFU zone, marijuana production and processing shall only be located in
buildings, including greenhouses, hoop houses, and similar structures.
el). In all zones, marijuana production and processing are prohibited in any outdoor area.
3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for
mature marijuana plants shall apply as follows:
a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet.
b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square
feet. The maximum canopy area for mature marijuana plants may be increased to
10,000 square feet upon demonstration by the applicant to the County that:
i. The marijuana production operation was lawfully established prior to January 1,
2015; and
ii. The increased mature marijuana plant canopy area will not generate adverse impact
of visual, odor, noise, lighting, privacy or access greater than the impacts
associated with a 5,000 square foot canopy area operation.
c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square
feet.
d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square
feet.
Parcels equal to or greater than 60 acres in lot area: 40,000 square feet.
e.
property shall be:
a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet.
b. Parcels equal to or gr-ater than 10 acres: 5,000 square feet.
54. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control
Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA)
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ATTACHMENT A
registered medical marijuana grow site shall be allowed per legal parcel or lot.
65. Setbacks. The following setbacks shall apply to all marijuana production and processing
areas and buildings:
a. Minimum Yard Setback/Distance from Lot Lines: 100 150 feet.
b. Setback from an off-site dwelling: 300 400 feet. For the purposes of this criterion, an
off-site dwelling includes those proposed off-site dwellings with a building permit
application submitted to Deschutes County prior to submission of the marijuana
production or processing application to Deschutes County.
c. Setback from Federal public lands: 300 feet.
e -.d. Exception: Any reduction to these setback requirements may be granted by the
Planning Director or Hearings Body provided the applicant demonstrates the reduced
setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and
access impacts.
76. Separation Distances. Minimum separation distances shall apply as follows:
a. The use applicant property line shall be located a minimum of 1000 1,320 feet from:
i. A public elementary or secondary school for which attendance is compulsory
under Oregon Revised Statutes 339.010, et seq., including any parking lot
appurtenant thereto and any property used by the school;
ii. A private or parochial elementary or secondary school, teaching children as
described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and
any property used by the school;
iii. A licensed child care center or licensed preschool, including any parking lot
appurtenant thereto and any property used by the child care center or preschool.
This does not include licensed or unlicensed child care which occurs at or in
residential structures;
iv. A youth activity center; and
v. Nati nal monuments and state parks.State, local, and municipal parks, including
land owned by a parks district;
vi. Redmond Urban Reserve Area;
vii. The boundary of any local jurisdiction that has opted out of Oregon's
recreational marijuana program; and
viii. Any other lot or parcel approved by Deschutes County for marijuana production.
b. For purposes of DCC 18.116.330(B)(76), all distances shall be measured from the lot
line of the affected properties listed in DCC 18.116.330(B)(76)(a) to the closest point
of the buildings and land areaapplicant's property line of land occupied by the
marijuana producer or marijuana processor.
c. A change in use of another property to those identified in DCC 18.116.330(B)(76) shall
not result in the marijuana producer or marijuana processor being in violation of DCC
18.116.330(B)(76) if the use is:
i. Pending a local land use decision;
ii. Licensed or registered by the State of Oregon; or
iii. Lawfully established.
47. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana
plantssites shall comply with the following standards.
a. Have frontage on and legal direct access from a constructed public, county, or state
road; or
b. Have access from a private road or easement serving only the subject property.
c. If the property takes access via a private road or easement which also serves other
properties, the applicant shall obtain written consent to utilize the easement or private
road for marijuana production access from all owners who have access rights to the
private road or easement. The written consent shall:
Chapter 18.116 (11/2018)
ATTACHMENT
i. Be on a form provided by the County and shall contain the following information;
ii. Include notarized signatures of all owners, persons and properties holding a
recorded interest in the private road or easement;
iii. Include a description of the proposed marijuana production or marijuana
processing operation; and
iv. Include a legal description of the private road or easement.
98. Lighting. Lighting shall be regulated as follows:
a. Inside building lighting, including greenhouses, hoop houses, and similar structures,
used for marijuana production shall not be visible outside the building from 7:00 p.m.
to 7:00 a.m. on the following daysunset to sunrise.
b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly
by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected
below the horizontal plane through the lowest light -emitting part.
c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with
DCC 15.10, Outdoor Lighting Control.
4-09. Odor. The building shall be equipped with an effective odor control system which must at
all times prevent unreasonable interference of neighbors' use and enjoyment of their
property. As used in DCC 18.116.330(B)(1-09), building means the building, including
greenhouses, hoop houses, and other similar structures, used for marijuana production or
marijuana processing. Odor produced by marijuana production and processing shall comply
with the following:
a. Odor control plan. To ensure that the standard stated in DCC 18.116.330(B)(9) is
continuously met, the applicant shall submit an odor control plan prepared and stamped
by a mechanical engineer licensed in the State of Oregon that includes the following;
i. The mechanical engineer's qualifications and experience with system design and
operational audits of effective odor control and mitigation systems;
ii. A detailed analysis of the methodology, including verified operational
effectiveness, that will be relied upon to effectively control odor on the subject
property;
iii. A detailed description of any odor control systems that will be utilized, including
operational schedules and maintenance intervals;
iv. Contingence measures if any aspect of the odor control plan fails or is not
followed, or if it is otherwise shown that the standard stated in DCC
18.116.330(B)(9) is not met;
v. Testing protocols and intervals; and
vi. Identification of the responsible parties tasked with implementing each aspect of
the odor control plan.
b. Modifications. Significant modifications to the odor control plan, including but not
limited to replacement of one system for another or a change in odor control
methodology shall be approved in the same manner as a modification to a land use
action pursuant to DCC 22.36.040.
c. The system shall at all times be maintained in working order and shall be in use.
a. The building shall be equipped with an effective odor control system which must at all
property.
of their property.
Chapter 18.116
(11/2018)
ATTACHMENT A
authorized, if at all, as provided in applicable state statute.
d. The odor control system shall:
i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute
CFM; or
ii. Utilize an alternative method or technology to achieve equal to or greater odor
mitigation than provided by (i) above.
e. The system shall be maintained in working order and shall be in use.
4-1-10. Noise. Noise produced by marijuana production and marijuana processing shall
comply with the following:
a. Standard. To prevent unreasonable interference of neighbors' use and enjoyment of
their property, sustained noise including ambient noise levels shall not be detectable
beyond the applicant's property line above 45 dB(A) in total between 10:00 pm and
7:00 am the following day.
i. For purposes of DCC 18.116.330(B)(10), "sustained noise" shall mean noise
lasting more than five continuous minutes or five total minutes in a one hour period
from mechanical equipment used for heating, ventilation, air condition, odor
control, fans and similar functions associated with marijuana production and
processing_
b. Noise control plan. To ensure that the standard stated in DCC 18.116.330(B)(10) is
continuously met, the applicant shall submit a noise control plan prepared and stamped
by a mechanical engineer licenses in the State of Oregon that includes the following:
i. The mechanical engineer's qualifications and experience with system design and
operational audit of effective noise control and mitigation systems;
ii. A detailed analysis of the methodology that will be relied upon to effectively
control noise on the subject property;
iii. A detailed description of any noise control systems that will be utilized, including
operational schedules and maintenance intervals;
iv. Contingence measures if any aspect of the noise control plan fails or is not
followed, or if it is otherwise shown that the standard stated in DCC
18.116.330(B)(10) is not met;
v. Testing protocols and intervals; and
vi. Identification of the responsible parties tasked with implementing each aspect of
the noise control plan.
c. Modifications. Significant modifications to the noise control plan, including but not
limited to replacement of one system for another or a change in noise control
methodology shall be approved in the same manner as a modification to a land use
action pursuant to DCC 22.36.040.
a. Sustained noise from mechanical equipment used for heating, ventilation, air condition,
property line between 10:00 p.m. and 7:00 a.m. the following day.
and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is
permitted.
1211. Screening and Fencing. The following screening standards shall apply to
greenhouses, hoop houses, and similar non -rigid structures and land areas used for
marijuana production and processing:
a. All marijuana uses, buildings, structures, fences, and storage and parking areas,
whether a building permit is required or not, in the Landscape Management Combining
Zone, shall comply with and require DCC 18.84, Landscape Management Combining
Chapter 18.116
(11/2018)
ATTACHMENT A
Zone approval. Subject to DCC 18.84, Landscape Management Combining Zone
approval, if applicable.
b. Fencing and screening shall be finished in a muted earth tone that blends with the
surrounding natural landscape and shall not be constructed of temporary materials such
as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife
Area Combining Zone, if applicable.
c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that
blends with the surrounding natural landscape.
d. The existing tree and shrub cover screening the development from the public right-of-
way or adjacent properties shall be retained to the maximum extent possible. This
provision does not prohibit maintenance of existing lawns, removal of dead, diseased
or hazardous vegetation; the commercial harvest of forest products in accordance with
the Oregon Forest Practices Act; or agricultural use of the land.
Water. Applicant shall state the anticipated amount of water to be used, as stated on
-1412.
the water right, certificate, permit, or other water use authorization, on an annual basis.
Water use from any source for marijuana production shall comply with all applicable state
statutes and regulations. The applicant shall provide:
a. An Oregon Water Resources Department (ORWD) Certificate(s), permit, or other
water use authorization proving necessary water supply of proper classification will be
available for intended use during required seasons, regardless of source; orA copy of a
water right permit, certificate, or other water use authorization from the Oregon Water
Resource Department; or
b. A source water provider Will Serve statement referencing valid Water Right to be
utilized, if any, as well as a Will Haul statement, including the name and contact
information of the water hauler; orA statement that water is supplied from u publi^ or
provider; or
c. In the alternative to (a) and (b) above, proof from Oregon Water Resources Department
that the water supply to be used does not require a Water Right for the specific
application use classification, volume, and season of use (i.e., roof -collected
water).
from a source that does not require a water right.
d. If the applicant is proposing a year-round production facility, the water right,
certificate, permit, or other water use authorization must address all permitted sources
of water for when surface water is unavailable.
e. In the event that the water source for the facility changes from the use of an ORWD
certificate, permit, or other water use authorization to the use of a water hauler, or from
the use of a water hauler to another source, a modification to a land use action pursuant
to DCC 22.36.040 is required.
X413. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid
extracts shall only be permitted on properties located within the boundaries of or under
contract with a fire protection district.
X14. Utility Verification. Utility statements identifying the proposed operation, or
operational characteristics such as required electrical load and timing of such electrical
loads and aA statement from each utility company proposed to serve the operation, stating
that each such company is able and willing to serve the operation, shall be provided. The
utility shall state that it has reviewed the new service or additional load request and
determined if existing capacity can serve the load or if a system upgrade is required. Any
new service request or additional load request requiring an upgrade shall be performed per
the serving utility's stated policy.
X15. Security Cameras. If security cameras are used, they shall be directed to record
Chapter 18.116 (11/2018)
ATTACHMENT A
only the subject property and public rights-of-way, except as required to comply with
requirements of the OLCC or the OHA.
4-716. Secure Waste Disposal.
a. Marijuana waste shall be stored in a secured waste receptacle in the possession of and
under the control of the OLCC licensee or OHA Person Responsible for the Grow Site
(PRMG).
fhb. Wastewater generated during marijuana production and/or processing shall be disposed
of in compliance with applicable, federal, state, and local laws and regulations.
18. Residency. In the MUA 10 zone, a minimum of one of the following shall reside in a
dwelling unit on the subject property:
a. An owner of the subject property;
b. A holder of an OLCC license for marijuana production, provided that the license
applies to the subject property; or
c. A person registered with the OHA as a person designated to produce marijuana by a
property.
4-917. Nonconformance. All medical marijuana grow sites lawfully established prior to
June 8, 2016 by the Oregon Health Authority shall comply with Ordinance No. 2016-015
and with -the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the
provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016.
2018. Prohibited Uses.
a. In the EFU zone, the following uses are prohibited:
i. A new dwelling used in conjunction with a marijuana crop;
ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in
conjunction with a marijuana crop;
iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a),
carried on in conjunction a marijuana crop; and
iv. Agri -tourism and other commercial events and activities in conjunction with a
marijuana crop.
b. In the MUA 10 Zone, the following uses are prohibited:
i. Commercial activities in conjunction with faun use when carried on in conjunction
with a marijuana crop.
eb. In the EFU, MUA 10, and Rural Industrial zones, the following uses are prohibited on
the same property as marijuana production:
i. Guest Lodge.
ii. Guest Ranch.
iii. Dude Ranch.
iv. Destination Resort.
v. Public Parks.
vi. Private Parks.
vii. Events, Mass Gatherings and Outdoor Mass Gatherings.
viii. Bed and Breakfast.
ix. Room and Board Arrangements.
19. Compliance.
a. Odor. On-going compliance with the odor control plan is mandatory and shall be
ensured with a permit condition of approval. The odor control plan does not supersede
required compliance with the standard set forth in DCC 18.116.330(B)(9). If provided
in applicable state statutes, private actions alleging nuisance or trespass associated with
odor impacts are authorized.
b. Noise. On-going compliance with the noise control plan is mandatory and shall be
ensured with a permit condition of approval. The noise control plan does not supersede
Chapter 18.116 (11/2018)
ATTACHMENT A
required compliance with the standard set forth in DCC 18.116.330(B)(10). If provided
in applicable state statutes, private actions alleging nuisance or trespass associated with
noise impacts are authorized.
C. Marijuana Retailing. Marijuana retailing, including recreational and medical marijuana sales,
shall be subject to the following standards and criteria:
1. Hours. Hours of operation shall be no earlier than 9:00 a.m. and no later than 7:00 p.m. on
the same day.
2. Odor. The building, or portion thereof, used for marijuana retailing shall be designed or
equipped to prevent detection of marijuana plant odor off premise by a person of normal
sensitivity.
3. Window Service. The use shall not have a walk-up or drive-thru window service.
4. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the
possession of and under the control of the OLCC licensee or OHA registrant.
5. Minors. No person under the age of 21 shall be permitted to be present in the building, or
portion thereof, occupied by the marijuana retailer, except as allowed by state law.
6. Co -Location of Related Activities and Uses. Marijuana and tobacco products shall not be
smoked, ingested, or otherwise consumed in the building space occupied by the marijuana
retailer. In addition, marijuana retailing shall not be co -located on the same lot or parcel or
within the same building with any marijuana social club or marijuana smoking club.
7. Separation Distances. Minimum separation distances shall apply as follows:
a. The use shall be located a minimum of 1,000 feet from:
i. A public elementary or secondary school for which attendance is compulsory
under Oregon Revised Statutes 339.010, et seq., including any parking lot
appurtenant thereto and any property used by the school;
ii. A private or parochial elementary or secondary school, teaching children as
described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and
any property used by the school;
iii. A licensed child care center or licensed preschool, including any parking lot
appurtenant thereto and any property used by the child care center or preschool.
This does not include licensed or unlicensed family child care which occurs at or in
residential structures;
iv. A youth activity center;
v. National monuments and state parks; and
vi. Any other marijuana retail facility licensed by the OLCC or marijuana dispensary
registered with the OHA.
b. For purposes of DCC 18.116.330(HC)(7), distance shall be measured from the lot line
of the affected property to the closest point of the building space occupied by the
marijuana retailer. For purposes of DCC 18.116.330(HC)(7)(a)( vi), distance shall be
measured from the closest point of the building space occupied by one marijuana
retailer to the closest point of the building space occupied by the other marijuana
retailer.
c. A change in use to another property to a use identified in DCC 18.116.330(HC)(7),
after a marijuana retailer has been licensed by or registered with the State of Oregon
shall not result in the marijuana retailer being in violation of DCC 18.116.330(B)(7).
D. Inspections and Annual Reporting
1. An annual report shall be submitted to the Community Development Department by the
real property owner or licensee, if different, each February 1, documenting all of the
following as of December 31 of the previous year, including the applicable fee as adopted
in the current County Fee Schedule and a fully executed Consent to Inspect Premises form:
a. Documentation demonstrating compliance with the:
i. Land use decision and permits.
Chapter 18.116 (11/2018)
ATTACHMENT A
ii. Fire, health, safety, waste water, and building codes and laws.
iii. State of Oregon licensing requirements.
b. An optional statement of annual water use. Failure to timely submit the annual report,
fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC
Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the
c. Other information as may be reasonably required by the Planning Director to ensure
compliance with Deschutes County Code, applicable State regulations, and to protect
the public health, safety, and welfare.
d. As a condition of approval, the applicant must consent in writing to allow Deschutes
County to, randomly and without prior notice, inspect the premises and ascertain the
extent and effectiveness of the odor control system(s), compliance with Deschutes
County Code, and applicable conditions of approval. Inspections may be conducted by
the County up to three (3) times per calendar year, including one inspection prior to the
initiation of use. . - • . - - - -
Community Development Department.
e. Conditions of Approval Agreement to be established and maintained by the
Community Development Department.
c -f. Documentation that System Development Charges have been paid.
g. This information shall be public record subject to ORS 192.502(17).
4h. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or
to demonstrate compliance with DCC 18.116.330(D)(1)(a) shall serve as
acknowledgement by the real property owner and licensee that the otherwise allowed
use is not in compliance with Deschutes County Code; authorized permit revocation
under DCC Title 22, and may be relied upon by the State of Oregon to deny new or
license renewal(s) for the subject use.
(Ord. 2018-012 §3, 2018; Ord. 2016-015 §10, 2016)
18.116.340. Marijuana Production Registered by the Oregon Health Authority (OHA)
A. Applicability. Section 18.116.340 applies to:
1. All marijuana production registered by OHA prior to June 1, 2016; and
2. All marijuana production registered by OHA on or after June 1 2016 until the effective date
of Ordinances 2016-015, 2016-16, 2016-17, and 2016-18, at which time Ordinances 2016-
015 through Ordinance 2016-018 shall apply.
B. All marijuana production registered by OHA prior to June 1, 2016 shall comply with the
following standards by September 15, 2016:
1. Lighting. Lighting shall be regulated as follows:
a. Inside building lighting, including greenhouses, hoop houses, and similar structures,
used for marijuana production shall not be visible outside the building from 7:00 p.m.
to 7:00 a.m. on the following daysunset to sunrise.
b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly
by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected
below the horizontal plane through the lowest light -emitting part.
c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with
DCC 15.10, Outdoor Lighting Control.
C. All marijuana production registered by OHA prior to June 1, 2016 shall comply with the
following standards by December 15, 2016:
1. Odor. As used in DCC 18.116.3-30340(BC)(10), building means the building, including
Chapter 18.116 (11/2018)
aµ:rvA
greenhouses, hoop houses, and other similar structures, used for marijuana production or
marijuana processing.
a. The building shall be equipped with an effective odor control system which must at all
times prevent unreasonable interference of neighbors' use and enjoyment of their
property.
b. An odor control system is deemed permitted only after the applicant submits a report
by a mechanical engineer licensed in the State of Oregon demonstrating that the system
will control odor so as not to unreasonably interfere with neighbors' use and enjoyment
of their property.
c. Private actions alleging nuisance or trespass associated with odor impacts are
authorized, if at all, as provided in applicable state statute.
d. The odor control system shall:
i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute
(CFM) equivalent to the volume of the building (length multiplied by width
multiplied by height) divided by three. The filter(s) shall be rated for the required
CFM; or
ii. Utilize an alternative method or technology to achieve equal to or greater odor
mitigation than provided by i. above.
e. The system shall be maintained in working order and shall be in use.
2. Noise. Noise produced by marijuana production and marijuana processing shall comply
with the following:
a. Sustained noise from mechanical equipment used for heating, ventilation, air condition,
odor control, fans and similar functions shall not exceed 30 dB(A) measured at any
property line between 10:00 p.m. and 7:00 a.m. the following day.
b. Sustained noise from marijuana production is not subject to the Right to Farm
protections in DCC 9.12 and ORS 30.395. Intermittent noise for accepted farming
practices is however permitted.
3. Screening and Fencing. The following screening standards shall apply to greenhouses,
hoop houses, and similar non -rigid structures and land areas used for marijuana production
and processing:
a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if
applicable.
b. Fencing shall be fmished in a muted earth tone that blends with the surrounding natural
landscape and shall not be constructed of temporary materials such as plastic sheeting,
hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining
Zone, if applicable.
c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that
blends with the surrounding natural landscape.
d. The existing tree and shrub cover screening the development from the public right-of-
way or adjacent properties shall be retained to the maximum extent possible. This
provision does not prohibit maintenance of existing lawns, removal of dead, diseased
or hazardous vegetation; the commercial harvest of forest products in accordance with
the Oregon Forest Practices Act; or agricultural use of the land.
4. Water. The applicant shall provide:
a. A copy of a water right permit, certificate, or other water use authorization from the
Oregon Water Resource Department; or
b. A statement that water is supplied from a public or private water provider, along with
the name and contact information of the water provider; or
c. Proof from the Oregon Water Resources Department that the water to be used is from a
source that does not require a water right.
5. Security Cameras. If security cameras are used, they shall be directed to record only the
Chapter 18.116 (11/2018)
ATTACHMENT A
subject property and public rights-of-way, except as required to comply with requirements
of the OLCC or the OHA.
6. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the
possession of and under the control of the OLCC licensee or OHA Person Responsible for
the Grow Site (PRMG).
D. All new marijuana production registered by OHA on or after June 1, 2016 shall comply with
DCC 18.116.340330(A, B, and D -E)_ and the following standards:
a. EFU;
b. MUA 10; or
c. Rural Industrial in the vicinity of Deschutes Junction.
2. Minimum Lot Area.
b. In the EFU and MUA 10 zones, the subject property shall have a minimum lot area of
five (5) acres.
3. Maximum Building Floor Area. In the MUA 10 zone, the maximum building floor area
used for all activities associated with medical marijuana production on the subject property
e, hall be:
a. Parcels from 5 acres to less than 10 acres in area: 2,500 square feet.
b. Parcels equal to or grater than 10 acres: 5,000 square feet.
/.. Setbacks. The following setbacks shall apply to all marijuana production areas and
buildings:
a. Minimum Yard Setback/Distance from Lot Lines: 100 feet.
b. Setback from an off site dwelling: 300 feet.
For the purposes of this criterion, an off site dwelling includes those proposed off site
c. Exception: Reductions to these setback requirements may be granted at the discretion
privacy, and access impacts.
5. Indoor Production and Processing.
a. In the MUA 10 zone, marijuana production shall be located entirely within one or more
fully enclosed buildings with conventional or post framed opaque, rigid walls and roof
prohibited.
b. In the EFU zone, marijuana production shall only be located in buildings, including
greenhouses, hoop houses, and similar structures.
c. In all zones, marijuana production is prohibited in any outdoor area.
mature marijuana plants shall apply as follows:
a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet.
b. Parcels equal to or greater than 10 acres to less than 20 acres in lot ar a: 5,000 square
i. The marijuana production operation was lawfully established prior to January 1,
2015; and
ii. The increased mature marijuana plant canopy area will not generate adverse
impact of visual, odor, noise, lighting, privacy or access greater than the impacts
associated with a 5,000 square foot canopy area operation.
feet,
Chapter 18.116
. 111 ... _.
(11/2018)
ATTACHMENT A
d. Parcels equal to or gr-ater than 10 acres to less than 60 acres in lot ar a: 20,000 square
feet,
c. Parcels equal to or gr ater than 60 acres in lot area: 10,000 square feet.
7. Separation Distances. Minimum separation distances shall apply as follows:
a. The use shall be located a minimum of 1000 feet from:
i. A public elementary or secondary school for which attendance is compulsory
under Oregon Revised Statutes 339.010, et seq., ineludi
de.,cribed in ORS 339.030(1)(a), including any parking lot appurtenant thereto and
iii. A licensed child care center or licensed preschool, including any parking lot
This does not include licensed or unlicensed child care which occurs at or in
residential structures;
iv. A youth activity center; and
v. National monuments and state parks.
b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot
line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of
c. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall
not result in the marijuana producer or marijuana processor being in violation of DCC
18.116.330(B)(7) if the use is:
i. Pending a local land use decision;
ii. Registered by the State of Oregon; or
iii. Lawfully established.
plants shall comply with the following standards.
road; or
b. Have access from a private road or easement serving only the subject property.
private road or easement. The written consent shall:
i. Be on a form provided by the County and shall contain the following information;
iii. Include a description of the proposed marijuana production or marijuana
processing operation; and
iv. Include a legal description of the private road or easement.
9. Residency. In the MUA 10 zone, a minimum of one of the following shall reside in a
a. An owner of the subject property; or
b. A person registered with the OHA as a person designated to produce marijuana by a
10. Annual Reporting. An annual report shall be submitted to the Community Development
Department by the real property owner or licensee, if different, each February 1,
Chapter 18.116
(11/2018)
ATTACHMENT A
to Inspect Premises form:
a. Documentation demonstrating compliance with the:
i. Land use decision and permits.
iii. State of Oregon licensing requirements.
to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as
acknowledgement by the real property owner and licensee that the otherwise allowed
use is not in compliance with Deschutes County Code; authorizes permit revocation
under DCC Title 22, and may be relied upon by the State of Oregon to deny new or
license renewal(s) for the subject use.
c. Other information as may be reasonably required by the Planning Director to ensure
compliance with Deschutes County Code, applicable State regulations, and to protect
the public h-alth, safety, and welfare.
d. Marijuana Control Plan to be established and maintained by the Community
Development Department.
c. Conditions of Approval Agreement to be established and maintained by the
Community Development Department.
f. This information shall be public record subject to ORS 192.502(17).
11. Prohibited Uses.
a. In the EFU zone, the following uses are prohibited:
. _ 'th a marijuana crop;
ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in
conjunction with a marijuana crop;
carried on in conjunction a marijuana crop; and
iv. Agri tourism and other commercial events and activities in conjunction with a
marijuana crop.
b. In the MUA 10 Zone, the following uses are prohibited:
i. Commercial activities in conjunction with faun use when carried on in conjunction
with a marijuana crop.
the same property as marijuana production:
i. Guest Lodge.
ii. Guest Ranch.
iii. Dude Ranch.
iv. Destination Resort.
v. Public Parks.
vi. Private Parks.
vii. Events, Mass Gatherings and Outdoor Mass Gatherings.
viii. Bed and Breakfast.
ix. Room and Board Arrangements.
(Ord. 2018-012 2018; Ord. 2016-019 §1, 2016)
Chapter 18.116 (11/2018)
ATTACHMENT A
Chapter 18.124. SITE PLAN REVIEW
18.124.060. Approval Criteria.
* * *
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 naturaland elan -made environment and
existing development, minimizing visual impacts and preserving natural features including views and
topographical features.
B. The landscape and existing topography shall be preserved to the greatest extent possible, considering
development constraints and suitability of the landscape and topography. Preserved trees and shrubs
shall be protected.
C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities
for privacy and transition from public to private spaces.
D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for
wheelchairs and Braille signs.
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.
F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties,
streets, or surface and subsurface water quality.
G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires,
and the like), loading and parking and similar accessory areas and structures shall be designed, located
and buffered or screened to minimize adverse impacts on the site and neighboring properties.
H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and
neighboring properties.
I. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks,
etc.).
J. All exterior lighting shall be shielded so that direct light does not project off-site.
K. Transportation access to the site shall be adequate for the use.
1. Where applicable, issues including, but not limited to, sight distance, turn and
acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and
pedestrian connections, shall be identified.
2. Mitigation for transportation -related impacts shall be required.
3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable
Oregon Department of Transportation (ODOT) mobility and access standards, and applicable
American Association of State Highway and Transportation Officials (AASHTO) standards.
(Osd 2018-012_ 4, 8, Ord. 2010-018 §2, 2010, Ord. 93-043 §§21, 22 and 22A, 1993; Ord. 91-038 §1,
1991; Ord. 91-020 §1, 1991)
Chapter 18.124 1
ATTACHMENT A
Chapter 22.24. LAND USE ACTION HEARINGS
22.24.030. Notice of Hearing or Administrative Action.
* * *
22.24.030. Notice of Hearing or Administrative Action.
A. Individual Mailed Notice.
1. Except as otherwise provided for herein, notice of a land use application shall be mailed at least 20
days prior to the hearing for those matters set for hearing, or within 10 days after receipt of an
application for those matters to be processed administratively with notice. Written notice shall be
sent by mail to the following persons:
a. The applicant.
b. Owners of record of property as shown on the most recent property tax assessment roll of
property located:
1. Within 100 feet of the property that is the subject of the notice where any part of the subject
property is within an urban growth boundary;
2. Within 250 feet of the property that is the subject of the notice where the subject property is
outside an urban growth boundary and not within a farm or forest zone, except where
greater notice is required under DCC 22.24.030(A)(4) for structures proposed to exceed 30
feet in height; or
3. Within 750 feet of the property that is the subject of the notice where the subject property is
within a farm or forest zone, except where greater notice is required under DCC
22.24.030(A)(4) for structures proposed to exceed 30 feet in height.
4. Within 1000 feet of the property that is subject of a marijuana production or processing
notice where the subject property is within a farm zone.
c. For a solar access or solar shade exception application, only those owners of record identified in
the application as being burdened by the approval of such an application.
d. The owner of a public use airport if the airport is located within 10,000 feet of the subject
property.
e. The tenants of a mobile home park when the application is for the rezoning of any part or all of
a mobile home park.
f. The Planning Commission.
g. Any neighborhood or community organization formally recognized by the board under criteria
established by the Board whose boundaries include the site.
h. At the discretion of the applicant, the County also shall provide notice to the Department of
Land Conservation and Development.
2. Notwithstanding DCC 22.24.030(A)(1) (b)(1), all owners of property within 250 feet of property
that is the subject of a plan amendment application or zone change application shall receive notice.
3. The failure of a property owner to receive mailed notice shall not invalidate any land use approval if
the Planning Division can show by affidavit that such notice was given.
4. For structures proposed to exceed 30 feet in height that are located outside of an urban growth
boundary, the area for describing persons entitled to notice under DCC 22.24.030(A)(1)(b) shall
expand outward by a distance equal to the distance of the initial notice area boundary for every 30
foot height increment or portion thereof.
B. Posted Notice.
Chapter 22.24 1
ATTACHMENT A
1. Notice of a land use action application for which prior notice procedures are chosen shall be posted
on the subject property for at least 10 continuous days prior to any date set for receipt of comments.
Such notice shall, where practicable, be visible from any adjacent public way.
2. Posted notice of an application for a utility facility line approval shall be by posting the proposed
route at intervals of not less than one-half mile. The notice shall be posted as close as practicable to,
and be visible from, any public way in the vicinity of the proposed route.
3. Notice of a solar access application shall be posted as near as practicable to each lot identified in the
application.
C. Published Notice. In addition to notice by mail and posting, notice of an initial hearing shall be
published in a newspaper of general circulation in the County at least 20 days prior to the hearing.
D. Media Notice. Copies of the notice of hearing shall be transmitted to other newspapers published in
Deschutes County.
(Ord. 2018-012 §5, 2018LOrd. 99-031 §6, 1999; Ord. 96-071 §1D, 1996; Ord. 95-071 §1, 1995; Ord.
95-045 §12, 1995; Ord. 91-013 §7-8, 1991; Ord. 90-007 §1, 1990)
22.24.040. Contents of Notice.
Chapter 22.24 2
ATTACH N1T A
Chapter 22.32. APPEALS
22.32.015. Filing Appeals.
* * *
22.32.015. Filing appeals.
A. To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the
Planning Division and an appeal fee.
B. Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received
at the offices of the Deschutes County Community Development Department no later than 5:00 PM on
the twelfth day following mailing of the decision. If a decision has been modified on reconsideration, an
appeal must be filed no later than 5:00 PM on the twelfth day following mailing of the decision as
modified. Notices of Appeals may not be received by facsimile machine.
C. Unless a request for reconsideration has been filed for a marijuana production or processing
administrative decision, the notice of appeal and appeal fee must be received at the offices of the
Deschutes County Community Development Department no later than 5:00 PM on the fifteenth day
following mailing of the decision.
CD.If the Board of County Commissioners is the Hearings Body and the Board declines review, a portion of
the appeal fee may be refunded. The amount of any refund will depend upon the actual costs incurred
by the County in reviewing the appeal. When the Board declines review and the decision is
subsequently appealed to LUBA, the appeal fee may be applied toward the cost of preparing a transcript
of the lower Hearings Body's decision.
DE. The appeal fee shall be paid by method that is acceptable to Deschutes County.
Crd. 201 8-012 .§6,.20181 Ord. 2015-017 §3, 2015; Ord. 99-031 §15, 1999; Ord. 98-019 §2, 1998; Ord. 96-
071 §1G, 1996; Ord. 95-045 §32, 1995; Ord. 94-042 §2, 1994; Ord. 91-013 §11, 1991; Ord 90-007 §1,
1990)
Chapter 22.32 1
Tanya Saltzman
ATTACHMENT
B
Subject: Comment Letter on 2019-2020 Work Plan
From: Stephanie Marshall <stephanie@bennulaw.com>
Sent: Thursday, June 13, 2019 2:34 PM
To: _admin <admin@co.deschutes.or.us>; Nick Lelack <Nick.Lelack@deschutes.org>
Cc: Lindsey Pate <lindsey@glasshousegrown.com>
Subject: Comment Letter on 2019-2020 Work Plan
June 13, 2019
re: Written Public Comments on County CDD 2019-2020 Work Plan (Hearing on June 12, 2019)
Dear Chair Henderson, Commissioner DeBone and Commissioner Adair:
This law firm is the successor entity to Clifton Cannabis Law LLC, which represented twelve (12) petitioners (the
"Petitioners") in an appeal of Ordinance No. 2018-012 to the Land Use Board of Appeals (LUBA) in 2018. These written
comments are submitted pursuant to the Board's statement at the public hearing on June 12, 2019 that the record on the
matter would be left open through June 13, 2019.
A. Consideration and Adoption of Revised Marijuana Regulations.
Nick Lelack, Deschutes County Development Department (CDD) Director presented the department's Annual Report and
Draft 2019-2020 Work Plan at the public hearing, Among other things in the report, the County's regulation of marijuana
was addressed.
We are advised by the CDD that you intend to reconsider the marijuana text amendments that were adopted (and appealed
and subsequently withdrawn) last fall in a public hearing on July 3. We have further been advised that the Board's
intention is to bring the amendments to the hearing in the same form as they were adopted and proceed from there with
the public process. With the upcoming legislative process, the County has the opportunity to address many issues raised
by the LUBA Petitioners to come up with regulations that are actually reasonable and supported by the facts.
B. Summary of Legal and Factual Deficiencies in Ordinance 2018-012
The Marijuana Regulatory Assessment prepared by CDD staff at the Board's request, including a Marijuana Land Use
Existing Conditions Report, dated October 23, 2017, shows no issues were identified with respect to permitted operations.
There is no basis for increasing regulation of marijuana. The Commissioners should listen to all of their constituents,
particularly those most impacted by the regulations, which includes those in the marijuana industry.
Alleged impact of those operations on the public is not supported by evidence, but on fears and a lack of understanding.
Elevating presumptions about character, crime and even odor over the documented track record of legal, complaint
operations is error.
The result is the erosion of rights under the Farm Bill and the State and Federal constitutions. Why is marijuana treated
differently than hemp with respect to odor? Why is a presumption of guilt applied to applicants and operators to justify
1
A .TAC H\/[ NT
unannounced searches? Why are no other businesses and no other farms subject to such extreme exercises of claimed
authority? Marijuana is a farm crop entitled to protection under the Farm Act and Goal 3. Small farms are also entitled to
protection by the County Comprehensive Plan. The County must not lose sight of these existing protections in the .rush to
regulate out of existence what is viewed as politically unpopular. The County elected to opt -in, and not prohibit
marijuana. It cannot have it both ways.
With respect to legal authority, the County is indeed limited with respect to the scope of marijuana regulations it can
adopt. First, they must be "reasonable." Second, ORS 475B.486 describes the type of police power authority granted,
which extends to hours of operations, access and setbacks.
This authority is importantly constrained by ORS 475B.454, Preemption. The provisions of the statutory scheme are
designed to operate uniformly throughout the state and are paramount and superior to and fully replace and supersede any
municipal charter amendment or local ordinance inconsistent with the provisions of the statutory scheme. Amendments
and local ordinances that are inconsistent with the statutory scheme are repealed.
ORS 475B.526 declares marijuana as a crop for purposes of "farm use," (ORS 215.201), production of marijuana is
included within the definitions of "farm" and "farming practice" (for purposes of ORS 30.930), and marijuana is the
product of an agricultural activity (for purposes of ORS 568.909) and the product of farm use (for purposes of ORS
308A.062). Marijuana is entitled to the same protections as other crops under Oregon's Farm Act and is shielded from
nuisance and trespass lawsuits under ORS 30.935
The County has already been warned by the Legislature regarding its local regulations. Defending regulations that the
County should know to be unreasonable and inconsistent with state law is a waste of public resources.
C. Specific Challenges to be Raised if the County Reenacts the Same Regulations and Restrictions in Ordinance
2018-012
If the County essentially readopts the Ordinance, challenges to LUBA will be made on these, and other bases.
First, the County would again exceed its jurisdiction and in doing so, would misconstrue controlling laws. The County
lacks authority to remove marijuana's state protections as a legal farm crop (per ORS 475B.526) under Oregon's Right to
Farm Act ("Farm Act"). A new ordinance that reenacts the challenged Ordinance 2018-012 will violate that Act by
granting a nuisance and trespass right against marijuana producers. The County violated Goal 3 and its Plan by effectively
capping an undisputed viable agricultural use in the EFU.
The County further lacks authority to adopt facially unreasonable restrictions on marijuana production. A local
government may only regulate EFU land use as allowed by state law and cannot impose barriers to farm uses outright
permitted in the EFU. The carve -out for "reasonable conditions" on the manner of marijuana production (ORS 475B.486
and ORS 475B.928) must be read congruously with these protections because otherwise, marijuana loses its express
protections as a farm crop. Each restriction in Ordinance 2018-012 is unreasonable because it demands farm operations
with zero impact (in terms of light, noise, odor, etc.). The Ordinance took the strictest marijuana regulations in Oregon
and purposefully made them harsher to appease certain constituents. The County sought to sacrifice a farm crop to
appease nonfarm uses in EFU lands. Its assertions of compliance with these laws is disproved by the record and the
practical effects of its Ordinance.
The Ordinance was not factually supported as required by Goal 2. The record reflects substantive evidence against the
Ordinance restrictions, but only speculation, unsubstantiated complaints, and the Commissioners' manifest prejudice to
support them. The County should not again ignore the facts to appease grumblings of certain constituents.
2
ATTACHMENT B
The Ordinance also violated the U.S. and Oregon Constitution. Marijuana growers face unreasonable regulations not
suffered by other County farmers or other marijuana growers outside the County. This is not rationally related to a
legitimate government endeavor because the County's true aim in adopting the Ordinance was to usurp state legislative
and administrative authorities to regulate marijuana production out of existence. The County's pretext should fail. The
Ordinance's restrictions also failed rational basis analysis under 14th Amendment substantive due process jurisprudence.
Forcing marijuana producers and processors to waive constitutional rights against unlawful searches and seizures is
demonstrably unnecessary and pretextual, designed to harass, not enforce. Lastly, the Ordinance unconstitutionally
granted a privilege by giving certain EFU owners a right to nuisance and trespass relief against marijuana growers that
other citizens cannot exert against the same type of farming byproducts.
We understand a public hearing is scheduled for July 3, 2019 with respect to consideration of a new ordinance to replace
Ordinance 2018-012. Please include this letter in that record, as well as in the record for the CDD 2019-2020 Work Plan.
Thank you for your attention to and consideration of these comments.
Sincerely,
Stephanie Marshall
fi
BENNU LAW
Stephanie Marshall Senior
Attorney
Bennu Law, LLC
(541) 306-6144
354 Greenwood Ave., Suite 213
Bend, OR 97701
This e-mail message may contain confidential or legally privileged 'information and is intended only for the use of the intended
recipicnt(s). Any unauthorized disclosure, dissemination, distribution, copying or the taking of any action in reliance on the
information herein is prohibited. E-mails are not secure and cannot be guaranteed to be error free as they can be intercepted,
amended, or contain viruses. Anyone who communicates with us by e-mail is deemed to have accepted these risks. Company
Name is not responsible for errors or omissions in this message and denies any responsibility for any damage arising from the
use of e-mail. Any opinion and other statement contained in this message and any attachment are solely those of the author
and do not necessarily represent those of the company.
3
Dear Chair Henderson, Commissioner DeBone, Commissioner Adair,
What began as a medical grow operation in 2015 and with five dispensaries across
Oregon, our goal is to continue to thrive and provide Oregonians with the high-quality cannabis
products they've grown to love from Cannabis Nation. In addition to producing over 30 premium
strains, we also make our own concentrates, cartridges, and pre-rolls. Our Sunriver store is our
newest location, opening in June of 2018. In the coming fiscal year, we are looking for
regulations that give our retail store in Sunriver an equal opportunity to participate in the
regulated cannabis market.
We would like to propose the extension of our allowable hours of operation to match the
legally allowable hours for the neighboring cities of Bend and La Pine. Currently, the allowable
operational hours of dispensaries outside of Bend City Limits and La Pine City Limits in
Deschutes County is 9:00 a.m. to 7:00 p.m. Cannabis Nation would like the opportunity to
provide the same hours of service for the population of rural Deschutes County. We previously
testified in August 2018 proposing this change in operating hours. Our proposed hours of
operation would be:
8:00 a.m. — 9:00 p.m. Sunday, Monday, Tuesday & Wednesday
8:00 a.m. — 10:00 p.m. Thursday, Friday & Saturday
As Cannabis Nation Sunriver has been operating just over 1 year, we have seen that the
customer traffic is much higher in the evening than in the morning. In the first hour of operations
in the months of March, April, and May 2019, only 5.49% of sales occurred. However, during the
last hour of operations, over 2x that many sales occurred at 11.93%. There have been
numerous occasions during closing shifts that customers have continued to arrive after closing
at 7:00 p.m. and must be turned away. This indicates that the ability to operate to the legally
allowed time of 10:00 p.m. will benefit not only our customers, but our employees and the State
of Oregon as well.
Benefits for the increased hours of operation include:
• Additional hours of workable time for all locally-hired employees, potentially generating the
need for added positions to be filled by locally sourced staff.
• Residents of rural Deschutes County and vacationing individuals in the area would not feel the
need to drive all the way to Bend or La Pine to make a purchase, keeping the roads safer with
decreased potential for individuals driving while tired after a long day of work or physical activity
or in potentially dangerous weather conditions.
Individuals living in, as well as those visiting, rural Deschutes County and the Sunriver
area work and play all hours of the day. We would like the opportunity to provide the local
community and numerous visitors with the State of Oregon's authorized legal right to purchase
marijuana during operating hours that fall within the hours of 8:00 a.m. and 10:00 p.m.
Thank you,
Cannabis Nation Team
Points of Contact:
Jenny Mueller
Manager ( Cannabis Nation Sunriver
(541)241-73801 jenny.muelleracannabisnationinc.com
Matt Hurt
Director of Operations 1 Cannabis Nation Inc.
matt.hurt@cannabisnationinc.com
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 Monday Meeting of June 24, 2019
DATE: June 17, 2019
FROM: Jacob Ripper, Community Development, 541-385-1759
TITLE OF AGENDA ITEM:
Draft Decision Denying a Marijuana Production Proposal at 25606 Alfalfa Market Rd.
BACKGROUND AND POLICY IMPLICATIONS:
This meeting is to afford the Board of County Commissioners with an opportunity to
provide edits to staff regarding the attached draft decision. Any edits can be made prior
to the Board's adoption of the final decision, scheduled for Wednesday, June 26.
FISCAL IMPLICATIONS: None
ATTENDANCE: Jacob Ripper, AICP, Senior Planner
DATE:
TO:
FROM:
c o l\ U I"C t k 3 ; V L. ia, M i`
STAFF MEMORANDUM
June 17, 2019
Deschutes County Board of Commissioners
Jacob Ripper, AICP, Senior Planner
RE: Draft decision denying a marijuana production proposal. File No. 247-
19-000161-A (appeal of 247 -18 -000890 -AD).
BACKGROUND INFORMATION
APPLICANT: Cameron Yee
APPELLANT: Daniel Tye
LOCATION: The subject property has an assigned address of 25606 Alfalfa Market
Road, Bend; and is further identified on County Assessor Tax Map 17-
14-22 as tax lot 1400.
HEARING DATE:
REVIEW PERIOD:
I. Purpose
March 27, 2019
The 150 -day period for issuance of a final local decision ends July 9,
2019.
This meeting is to afford the Deschutes Board of County Commissioners ("Board") with an
opportunity to provide edits and feedback to staff regarding the attached draft decision. Any edits
can be made prior to the Board's adoption of the final decision, scheduled for Wednesday, June 26.
II. Background
The Board held a public hearing to consider the appeal, filed by appellant Daniel Tye, represented
by Attorney Liz Dickson (together "Appellant") in response to an Administrative Decision approving
a marijuana production proposed by Cameron Yee ("Applicant").
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
t' (541) 388-6575 @cdd@deschutes.org E www.deschutes.org/cd
The Board conducted the public hearing on March 27, 2019, and deliberated on May 8, May 15, and
June 5, 2019. In the June 5, 2019 deliberations, the Board voted 2-1 to overturn the Administrative
Decision that had approved the land use permit application to establish a recreational marijuana
production facility on the subject property. Based on discussions and findings at the deliberation
meetings, staff has prepared a draft decision for review by the Board.
III. Conclusion & Next Steps
Staff respectfully requests the Board to review the attached decision and provide all desired edits
in the Monday, June 24 meeting. Any edits will be completed by staff within 24 hours. The final
decision will be placed on the meeting agenda for Wednesday, June 26 for Board signature. The 150 -
day period for issuance of a final local decision ends July 9, 2019.
Attachments:
1. Draft BOCC Decision
247-19-000161-A (247 -18 -000890 -AD) Page 2 of 2
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
FILE NUMBERS: 247 -18 -000890 -AD and 247-19-000161-A
APPLICANT: Cameron Yee
OWNER: David House
APPELLANT: Daniel Tye
APPELLANT'S ATTORNEY: Liz Dickson, Dickson Hatfield LLP
STAFF REVIEWER: Jacob Ripper, Senior Planner
LOCATION: The subject property has an assigned address of 25606 Alfalfa
Market Road, Bend; and is further identified on County Assessor
Tax Map 17-14-22 as tax lot 1400.
ADMINISTRATIVE
DECISION ISSUED: February 1, 2019
APPEAL FILED: February 13, 2019
HEARING DATE: March 27, 2019
RECORD CLOSED: April 17, 2019
Board of County Commissioners Decision, Document No. 2019-479
File Nos. 247 -18 -000890 -AD and 247-19-000161-A Page 1 of 6
I. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considered the appellant's appeal of
the February 1, 2019, administrative findings and decision (file nos. 247 -18 -000890 -AD and 247-19-
000161-A; "Administrative Decision"). The Board exercised its discretion to hear the appeal de novo.
The record, in its entirety, was presented to the Board as attachments to the February 6, March 18,
March 20, and May 1, 2019 Staff Memoranda.
The Board conducted a public hearing on March 27, 2019, and deliberated on May 8, May 15, and
June 5, 2019. In the June 5, 2019 deliberations, the Board voted 2-1 to overturn the Administrative
Decision that had approved the land use permit application to establish a recreational marijuana
production facility on the subject property. In deliberations, the Board found that the applicant had
failed to demonstrate that odor would be sufficiently controlled pursuant to DCC 18.116.330(6)(10).
The Board also found that the ability and willingness of the applicant to adhere to canopy size
limitations was cast into doubt, as it relates to the access consent requirements of DCC
18.116.330(6)(8).
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code (DCC), County Zoning
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.116, Supplementary Provisions
Title 22, Deschutes County Development Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the February 1, 2019, Administrative Decision in Section II (Basic
Findings), including subsections titled Location, Lot of Record, Zoning, Proposal, Site Description,
Land Use History, Public Agency Comments, Public Comments, and Review Period with the addition
of the following:
PROCEDURAL HISTORY: The administrative decision was issued on February 1, 2019. An
appeal was timely filed by the appellant during the 12 -day appeal period on February 13,
2019. The Board used their discretion to serve as the hearings body for the appellant's appeal
to be heard de novo pursuant to Board Order 2019-003, dated February 13, 2019.
A public hearing was held on March 27, 2019. The appellant, Daniel Tye (Successor Trustee
of the William R. Tye Trust), was represented by Elizabeth Dickson, Attorney at Law. The
Board heard testimony and established an open record period that closed on April 17, 2019.
The Board conducted deliberations at their regular business meetings on May 8, May 15, and June
5. The Board voted 2-1 to overturn the Administrative Decision and to deny the application.
Board of County Commissioners Decision, Document No. 2019-479
File Nos. 247 -18 -000890 -AD and 247-19-000161-A Page 2 of 6
IV. FINDINGS AND CONCLUSIONS:
Title 18 - DESCHUTES 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 February 1, 2019 Administrative Decision in Section II (Findings &
Conclusions), 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.
A. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS
1. Section 18.116.330, Marijuana Production, Processing, and Retailing.
B. Marijuana production and marijuana processing. Marijuana production and
marijuana processing shall be subject to the following standards and criteria:
8. Access. Marijuana production over 5,000 square feet of canopy area for
mature marijuana plants shall comply with the following standards.
a. Have frontage on and legal direct access from a constructed public,
county, or state road; or
b. Have access from a private road or easement serving only the subject
property.
c. If the property takes access via a private road or easement which also
serves other properties, the applicant shall obtain written consent to
utilize the easement or private road for marijuana production access
from all owners who have access rights to the private road or
easement. The written consent shall:
i. Be on a form provided by the County and shall contain the
following information;
ii. Include notarized signatures of all owners, persons and
properties holding a recorded interest in the private road or
easement;
iii. Include a description of the proposed marijuana production or
marijuana processing operation; and
iv. Include a legal description of the private road or easement.
FINDING: The applicant has proposed 4,999 square feet of canopy area for mature marijuana and
would not generally be subject to these criteria. However, the Board finds, based on the substantial
evidence in the record, that ability and willingness of the applicant to adhere to 4,999 square feet
limitation has been cast into doubt by the following record materials:
1) Although the applicant proposes only 4,999 square feet of production, the total square
footage of the proposed facility is 18,140 square feet. This total square footage is the same
as the facility shown in the withdrawn 5,000 square foot production application for the
subject property (247 -17 -00612 -AD). Without any change to the proposed structures, there
Board of County Commissioners Decision, Document No. 2019-479
File Nos. 247 -18 -000890 -AD and 247-19-000161-A Page 3 of 6
is no structural limitation precluding production in excess of 4,999 square feet of mature
canopy. Additionally, the applicant did not propose a method to ensure the mature canopy
area would remain at or below 4,999 square feet. Nothing in the record counters the notion
that the present application consists of less than 5,000 square feet specifically to avoid the
County's access requirements.
2) The applicant was the subject of OLCC order OLCC-18-MJV-004, and subject to civil penalties
of $1,485 for violation of "...OAR 845-025-3310(7) because Licensee or License's employees,
representatives or agents failed to record In the METRC Cannabis Tracking System (CTS)
within ten calendar days of licensure, information regarding the usable marijuana,
cannabinoid concentrates, extracts or products that the Commission permitted to be
transferred in from Licensee's medical marijuana processing site inventory from about
February 11, 2017 to about May 22, 2017."
3) The applicant's medical marijuana grow on the property was the subject of a code
enforcement complaint on September 4, 2017 for lighting and odor violations (247 -17-
000467 -CE), August 8, 2017 for noise violations (247 -17 -000425 -CE), and September 20, 2017
for odor violations (247 -17 -000509 -CE).
The Board acknowledges that it appears from the record that violations were quickly and reasonably
resolved. However, the Board also finds the applicant has demonstrated an inability and/or
unwillingness to consistently adhere to regulatory requirements.
The appellant submitted to the record Lee v. Marion County' and made an argument that the
applicant's credibility is a valid concern in the Board's deliberations. The appellant has bolstered
their credibility argument by submitting this case into the record. In that case, LUBA upheld Marion
County Commissioners' denial of a land use application to establish a bed and breakfast inn.
Specifically, Marion County denied the application on three related grounds, two of which related
directly to that applicant's credibility. Although the Marion County applicant claimed she intended
to occupy the subject property several nights a week to satisfy a requirement that the bed and
breakfast inn be occupied by a "resident of the dwelling," the Marion County Commissioners were
instead persuaded by other evidence in the record regarding the past occupancy of the property.
There are several parallels between the aforementioned Marion County decision and the present
matter before the Board. The Marion County applicant could only obtain a land use permit for a
bed and breakfast inn if the dwelling was, going forward, occupied by a "resident of the dwelling."
In this case, the applicant can only obtain a land use permit for marijuana production if the mature
canopy is, going forward, 5,000 square feet or less, because the record shows that the applicant
cannot obtain consent to use the private easements from neighboring property owners. In both
cases, the applicants' intended use of the subject properties - or stated otherwise, the credibility of
the applicants' commitments to continue complying with code criteria - are germane to the outcome
of the land use permit.
The majority of the Board finds that the applicant's proposal to limit the operation to 4,999 square
feet is not credible because the applicant has a pattern of violation of marijuana regulations, the
1 LUBA No. 2018-137 (February 28, 2019)
Board of County Commissioners Decision, Document No. 2019-479
File Nos. 247 -18 -000890 -AD and 247-19-000161-A
Page 4 of 6
site configuration is identical to the prior 5,000 square foot application, the applicant has not
proposed any structural or other method to limit the mature canopy to 4,999 square feet, and there
is no evidence that the change in square footage is not proposed solely to circumvent DCC
18.116.330(B)(8)(c). One Commissioner disagrees and finds that compliance with this criterion could
be met because the Oregon Liquor Control Commission (OLCC) is the regulatory body capable of
licensing, measuring, and enforcing mature canopy sizes.
As such, the majority of the Board finds that the criteria related to access for mature marijuana
canopies greater than 5,000 square feet apply, and that the applicant has not met his burden of
proof under DCC 18.116.330(B)(8)(c). This application is denied.
10. Odor. As used in DCC 18.116.330(8)(10), building means the building, including
greenhouses, hoop houses, and other similar structures, used for marijuana
production or marijuana processing.
a. The building shall be equipped with an effective odor control system
which must at all times prevent unreasonable interference of
neighbors' use and enjoyment of their property.
b. An odor control system is deemed permitted only after the applicant
submits a report by a mechanical engineer licensed in the State of
Oregon demonstrating that the system will control odor so as not to
unreasonably interfere with neighbors' use and enjoyment of their
property.
c. Private actions alleging nuisance or trespass associated with odor
impacts are authorized, if at all, as provided in applicable state statute.
d. The odor control system shall:
i. Consist of one or more fans. The fan(s) shall be sized for cubic
feet per minute (CFM) equivalent to the volume of the building
(length multiplied by width multiplied by height) divided by
three. The filter(s) shall be rated for the required CFM; or
ii. Utilize an alternative method or technology to achieve equal to
or greater odor mitigation than provided by (1) above.
e. The system shall be maintained in working order and shall be in use.
FINDING: The applicant submitted a detailed site-specific odor and noise report prepared by
Oregon -licensed mechanical and acoustical engineer Laura Breit (license #18638PE) dated
November 1, 2018. The report proposed to control odor from the greenhouses with a Fogco fogging
system using "Odor Armor 420" for odor control. Carbon filtration will be used for the composting
shed.
The Board finds the proposed carbon filtration for the composting shed meets the criteria in this
section. Regarding the Fogco fogging system, the supplied engineering report concludes that, "This
odor control system will satisfy the requirements of DCC 18.116.330(B)(10)(d)(i), and prevent
unreasonable interference of neighbors' use and enjoyment of their property." Of the evidence cited
in the report, the St. Croix Sensory report, dated May 15, 2017, using the Fogco fogging system with
"Odor Armor 420" is most relevant. This report, from a facility similar to the proposed marijuana
Board of County Commissioners Decision, Document No. 2019-479
File Nos. 247 -18 -000890 -AD and 247-19-000161-A Page 5 of 6
production operation, found "no discernible odor" at the fence line downwind of the facility where
it continuously exhausts. However, it is unclear from the record the distance to the "fence line" in
the St. Croix Sensory report. The report does find "Downwind of the CW facility, from 1/8 to 1 -mile
on public access roadways, the ambient air was without a discernible odor." For the other evidence
cited in the engineering report, it is either unclear if the odor -control technology is the Fogco fogging
system using "Odor Armor 420" or if the cited odor control examples differ in the odor to be
controlled, method of delivery, and/or deodorant chemical.
The majority of the Board finds that the applicant has not met his burden of proof to demonstrate
that the proposed system will "...at all times prevent unreasonable interference of neighbors' use
and enjoyment of their property." One Commissioner supports approving the application with a
condition of approval for additional odor control system inspections, however, since two Board
members found these criteria are not met the application is denied. The Board finds that there is
not substantial evidence in the record that the proposed system will be effective at approximately
193 feet, the distance to the nearest fence line. The Board further finds that the engineer's assertion,
which is not backed by any calculation or modeling, was not substantial enough to meet these
criteria.
V. DECISION:
Based on the findings of fact and conclusions of law set out above, the Board voted 2-1 to overturn
the Administrative Decision and denies the land use permit application to establish a recreational
marijuana production facility on the subject property.
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.
Board of County Commissioners Decision, Document No. 2019-479
File Nos. 247 -18 -000890 -AD and 247-19-000161-A Page 6 of 6