2020-68-Minutes Recorded 2/24/2020BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2020-68
Nancy Blankenship, County Clerk
Commissioners' ,journal 02/24/2020 11:02:16 AM
2020-68
FOR RECORDING STAMP ONLY
10:00 AM WEDNES AY, January 2 , 2020 BARNES & SAWYER ROOMS
Present were Commissioners Patti Adair, Anthony DeBone, and Phil Henderson. Also present were
Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County
Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and identified representatives of
the media were in attendance.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair Adair called the meeting to order at 10:00 am
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT:
Ron "Rondo"Boozell discussed his impressions relative to his experiences while
incarcerated at the DCAJ. According to Rondo, some folks are afraid for their safety
and may not be provided with nutritional meals. He questioned the County's
expectations regarding inmates at the DCAJ.
Dorlee Kingen presented testimony to address the need for housing for the senior
population with a community living option on non-farmable land to have a minimal
BOCC MEETING JANUARY 29, 2020 PAGE 1 OF 5
amount of housing communities.
David Mount addressed the Central Oregon Veterans Village proposal and voiced
concerns of the neighboring property owners.
Jake Elliott also commented on the Central Oregon Veterans Village and expressed
his concerns of the development and of the concern the neighborhood was not
informed prior to this story announced in the news.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
Consent Agenda Items:
HENDERSON: Move approval of Consent Agenda
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
1. Approval of Minutes of the November 25, 2019 BOCC Meeting
2. Approval of Minutes of the December 9, 2019 BOCC Meeting
3. Approval of Minutes of the December 23, 2019 BOCC Meeting
4. Approval of Minutes of the January 7, 2020 BOCC Meeting
5. Approval of Minutes of the January 8, 2020 BOCC Meeting
ACTION ITEMS:
6. PUBLIC HEARING: Remand of Waveseer Marijuana Production Proposal
Community Development Department planner Matt Martin presented the
hearing outline. Upon hearing no conflicts or challenges from the audience,
BOCC MEETING JANUARY 29, 2020 PAGE 2 OF 5
Commissioner Adair opened the public hearing. Mr. Martin provided the
staff report. Assistant Legal Counsel Adam Smith reported on the remand
process.
Corrine Selko representing the applicant Waveseer along with the CEO of
Waveseer, David Rosen addressed the scope of the remand and responses
on the concerns of the marijuana production application. Roger Whitaker,
mechanical and acoustical engineer, reported on the equipment used for the
facility.
Commissioner Adair called for public testimony.
David Galluchi presented testimony in opposition of the application and
reported on the activities and history of Rhinestone Ranch.
Chris Olsen presented testimony and is a neighboring property owner. His
concern is regarding the properties that will be impacted by the marijuana
production facility.
Ms. Selko presented rebuttal and Mr. Whitaker reported on the noise and
odor control systems. Mr. Rosen responded to steps taken to prepare the
property for the purchase and operations of the facility.
Assistant Legal Counsel Adam Smith and Community Development
Department Director Nick Lelack reported on the LUBA Remand and the
question of activities at the Rhinestone Ranch. County planning staff
previously (shortly after the initial public hearing before the BOCC)
determined that the ranch is an equine operation on EFU zoned land and
does not require a land use permit.
Ms. Selko responded on the position of the County regarding the activity on
the Rhinestone Ranch and argued her position.
Matt Martin clarified the property owner is confirmed as Peter Winsdor that
is a partner in Waveseer.
Commissioner Adair closed the hearing/oral testimony period.
Commissioner Henderson requested to place in the record the finding of the
Community Development Department on the use of the Rhinestone Ranch.
BOCC MEETING JANUARY 29, 2020 PAGE 3 OF 5
Commissioner DeBone suggested closing both the oral and written record.
The applicant requested to close both.
County Counsel Doyle acknowledged that it was within the discretion of the
Board to either close the Record now, or provide an open record period,
typically 7-7-7. Commissioner Adair commented on the participation of our
youth in 4H activities. The Commissioners expressed a desire to hold the
record open for 7-7-7.
Mr. Martin stated the applicable dates and times for the 7-7-7 open record
period. Deliberations will be scheduled at a later Board meeting.
Commissioner DeBone excused himself at 12:11 p.m. for another scheduled
meeting.
RECESS: At the time of 12:12 p.m. the Board took a recess and reconvened at 12:24
p.m. in the Allen Conference Room.
OTHER ITEMS:
• County Administrator Anderson reported on a request for a new performing
arts center in Central Oregon and noted that the group proposing this
development is looking for financial support for a feasibility study. The
Board would welcome a presentation and recommended a conversation with
the City of Bend and with Deschutes Public Library.
• Commissioner Henderson inquired on the timeline of the US Forest Service
detaching from the Smokejumper Center. County Administrator Anderson
stated they aren't in a position to create any new facilities.
BOCC MEETING JANUARY 29, 2020 PAGE 4 OF 5
EXECUTIVE SESSION:
At the time of 12:28 p.m. the Board went into Executive Session under ORS 192.660
(2) (h) Litigation. The Board came out of Executive Session at 1:07 p.m. to proceed
as directed.
Being no further items to come before the Board, the meeting was adjourned at 1:07 p.m.
DATED this Day of _ 20 for the Deschutes County Board of
Commissioners. r
:ATTElST:ri
CORDING SECRETARY
ANTHONY DEBONE, VICE CHAT
1
SPHIL'11P G. ENDERSON, COMMISSIONER
BOCC MEETING JANUARY 29, 2020 PAGE 5 OF 5
BOCC MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, WEDNESDAY, JANUARY 29, 2020
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit
www.deschutes.org/meetings. 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
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1. Approval of Minutes of the November 25, 2019 BOCC Meeting
2. Approval of Minutes of the December 9, 2019 BOCC Meeting
Board of Commissioners BOCC Meeting Agenda Wednesday, January 29, 2020 Page 1
of 3
3. Approval of Minutes of the December 23, 2019 BOCC Meeting
4. Approval of Minutes of the January 7, 2020 BOCC Meeting
5. Approval of Minutes of the January 8, 2020 BOCC Meeting
ACTION ITEMS
6. PUBLIC HEARING: Remand of Waveseer Marijuana Production Proposal - Matthew
Martin, Associate Planner
RECESS
EXECUTIVE SESSION
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.
Executive Session under ORS 192.660 (2) (h) 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.
ADJOURN
To watch this meeting on line, go to: www.deschutes.or.2/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Board of Commissioners BOCC Meeting Agenda Wednesday, January 29, 2020 Page 2
of 3
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 (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners BOCC Meeting Agenda Wednesday, January 29, 2020 Page 3
of 3
-C E S CMG
� 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 Wednesday Meeting of January 29, 2020
DATE: January 22, 2020
FROM: Matthew Martin, Community Development, 541-330-4620
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Remand of Waveseer Marijuana Production Proposal (File Nos. 247-18-
000128-AD/247-19-000899-A)
BACKGROUND AND POLICY IMPLICATIONS:
On February 7, 2018, an application was filed for an Administrative Determination (AD) to
establish marijuana production at 24350/24360 Dodds Road, Bend (tax maps and lots 18-13-
12 100/18-14-7 500) in the Exclusive Farm Use (EFU) zone. The Planning Division issued an
administrative decision without a public hearing on November 16, 2018, determining the
application met the applicable criteria.
On November 28, 2018, the Board issued Order No. 2018-075 authorizing the Board to serve
as the hearings body if an appeal was filed. A timely appeal of the approval was filed later that
day. The Board held a public hearing on November 19, 2018, the receive testimony on the
appeal. On February 22, 2019, the Board issued a final county decision denying the request.
The Applicant appealed the county decision to the Oregon Land Use Board of Appeals
(LUBA). On October 17, 2019, LUBA issued its Final Opinion and Order remanding the
decision to the County for further findings and conclusions of law. On December 6, 2019, the
Applicant initiated remand proceedings under local file no. 247-19-000899-A.
FISCAL IMPLICATIONS: none
ATTENDANCE: Matthew Martin, Associate Planner
MEMORANDUM
DATE: January 29, 2020
COMMUNfITY DEVELOPMENT
TO: Deschutes County Board of Commissioners
FROM: Matthew Martin, Associate Planner
RE: Public Hearing: Remand of Waveseer marijuana production proposal (247-18-
000128-AD/247-19-000899-A).
On January 29, 2020, the Board of Commissioners ('Board") will hold a public hearing to
consider the remanded decision of the Oregon Land Use Board of Appeals ("LUBA")
regarding marijuana production proposed by Waveseer of Oregon, LLC ("Applicant").
BACKGROUND
On February 7, 2018, an application was filed for an Administrative Determination (AD) to
establish marijuana production at 24350/24360 Dodds Road, Bend (tax maps and lots 18-13-
12 100/18-14-7 500) in the Exclusive Farm Use (EFU) zone. The Planning Division issued an
administrative decision without a public hearing on November 16, 2018, determining the
application met the applicable criteria.
On November 28, 2018, the Board issued Order No. 2018-075 authorizing the Board to serve
as the hearings body if an appeal was filed. A timely appeal of the approval was filed later
that day. The Board held a public hearing on November 19, 2018, the receive testimony on
the appeal. On February 22, 2019, the Board issued a final county decision denying the
request.
The Applicant appealed the county decision to the LUBA. On October 17, 2019, LUBA issued
its Final Opinion and Order remanding the decision to the County for further findings and
conclusions of law. On December 6, 2019, the Applicant initiated remand proceedings under
local file no. 247-19-000899-A.
The complete record for the project has been presented to the Board over several meetings.
The following is a list of the meetings and materials provided at each:
247-18-0001 28-AD/247-1 9-000899-A Page 1
• November 28, 2018, work session': Record prior to the submittal of the notice of
appeal.
• December 19, 2018, business meeting': Notice of appeal materials.
• January 23, 2019, work session 3: Remaining record including materials submitted
since the provision of the meeting packet for the December 19 public hearing and the
close of the post hearing open record period.
• January 30, 2019, works session 4: Staff memo regarding deliberations.
• January 21, 20205: Staff memo regarding preparation for the remand public hearing.
Attached hereto are all documents added to the record since Board issued the final county
decision on February 22, 2019 including:
• 2020-01-21 Staff Memo with Attachment
• 2020-01-09 Mailed Notice of Public Hearing
• 2019-12-06 Application Materials - File No. 247-000870-A
• 2019-02-22 Decision of the Board
11. PUBLIC COMMENTS RECEIVED
The Planning Division mailed written notice of public hearing to property owners within 750
feet of the subject property on January 9, 2020. Staff has not receive any additional written
testimony at the time of this memorandum.
III. NEXT STEPS
At the conclusion of the testimony, the Board can consider the following options:
1. Close the public hearing and written record and begin deliberations;
2. Close the public hearing and leave the written record open to a date certain; or
3. Continue the public hearing to a date certain.
Pursuant to DCC 22.34.030(B), a final decision shall be made by April 4, 2020.
Attachments:
2020-01-21 Staff Memo
2020-01-21 Staff Memo Attachment - LUBANo.2019-036 - Final Opinion and Order
2020-01-09 Mailed Notice of Public Hearing
2019-12-06 Application Materials- File NO. 247-000870-A
2019-02-22 Decision of the Board
1 11/28/18 Board Work Session: http://deschutescountyor.iqm2.com/Citizens/Detail Meeting.aspx?ID=1942
z 12/19/18 Board Business Meeting: httl2://deschutescountyor.iqm2.com/Citizens/Detail Meeting.aspx?ID=1964
3 1/23/19 Board Work Session: http://deschutescouniyor.iqm2.com/Citizens/DetaiI Meeting.aspx?ID=2087
4 1/30/19 Board Business Meeting: http://deschutescountyor.iqm2.com/Citizens/Detail Meeting.aspx?ID=2090
s 1/21/20 Board Tuesday Meeting: http://deschutescountyor.iqm2.com/Citizens/Detail Meeting.aspx?ID=2537
247-18-000128-AD/247-19-000899-A Page 2
aNS
MEMORANDUM
DATE: January 22, 2020
COI@�� /4,1UNITY IDI,:Vi I OPMENT
TO: Deschutes County Board of Commissioners
FROM: Matthew Martin, Associate Planner
RE: Preparation for public hearing on remand regarding Waveseer marijuana
production proposal (247-18-000128-AD/247-19-000899-A).
On February 22, 2019, the Board of Commissioners ('Board") issued a final county decision
on a marijuana production application, file no. 247-18-000128-AD. The Board denied the
request. The applicant, Waveseer of Oregon, LLC, appealed the county decision to the
Oregon Land Use Board of Appeals ("LUBA"). On October 17, 2019, LUBA issued its Final
Opinion and Order (attached) remanding the decision to the County for further findings and
conclusions of law. On December 6, 2019, the applicant initiated remand proceedings under
local file no. 247-19-000899-A. The Board will conduct a public hearing for this remand on
January 29, 2020.
The purpose of this meeting is to prepare the Board for the upcoming public hearing with a
staff presentation on the LUBA remand.
I. LUBA REMAND
The LUBA Final Opinion and Order remanded the county decision to address the following
issues:
A. Findings addressing the odor standards of Deschutes County Code (DCC)
18.11 6.330(B)(1 0).
In the Final Opinion and Order addressing odor, LUBA concluded:
Moreover, in the challenged final decision denying the application, the county did not
decide whether the application satisfied odor control standards for indoor marijuana
production, which may be an independent basis for denial if not satisfied. Under those
247-18-000128-AD/247-19-000899-A Page 1
circumstances, we remand the decision to the county for further proceedings. (Page 21 of
LUBA Final Opinion and Order)
B. Consideration of new findings addressing the youth active center separation
distance standards of DCC 18.116.330(B)(7)(a)(iv).
In the Final Opinion and Order addressing separation for youth activity centers, LUBA
concluded:
In so concluding, we emphasize the fact that the term 'youth activity center" is undefined
and not used elsewhere in the DCC In addition, while we doubt whether a youth -oriented
farm use or residential use could limit a farm use on property that is zoned EFU, it may be
that, under different facts and circumstances, the county could interpret the undefined
phrase 'youth activity center" in a manner that would not violate ORS 215.416(8)(a) or ORS
475B.486. However, as applied in this case, the county's interpretation of 'youth activity
center" is contrary to ORS 215.416(8)(a) and ORS 475B.486. (Page 19 of the LUBA Final
Order and Opinion)
II. NEXT STEPS
The Board will conduct a public hearing on January 29, 2020.
Pursuant to DCC 22.34.030(B), a final decision shall be made by April 4, 2020.
Attachments:
LUBA No.2019-036 - Final Opinion and Order
247-18-000128-AD/247-19-000899-A Page 2
vA ES c0
o �r 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 Wednesday Meeting of January 29, 2020
DATE: January 22, 2020
FROM: Matthew Martin, Community Development, 541-330-4620
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Remand of Waveseer Marijuana Production Proposal
BACKGROUND AND POLICY IMPLICATIONS:
On February 7, 2018, an application was filed for an Administrative Determination (AD) to
establish marijuana production at 24350/24360 Dodds Road, Bend (tax maps and lots 18-13-
12 100/18-14-7 500) in the Exclusive Farm Use (EFU) zone. The Planning Division issued an
administrative decision without a public hearing on November 16, 2018, determining the
application met the applicable criteria.
On November 28, 2018, the Board issued Order No. 2018-075 authorizing the Board to serve
as the hearings body if an appeal was filed. A timely appeal of the approval was filed later that
day. The Board held a public hearing on November 19, 2018, the receive testimony on the
appeal. On February 22, 2019, the Board issued a final county decision denying the request.
The Applicant appealed the county decision to the Oregon Land Use Board of Appeals
(LUBA). On October 17, 2019, LUBA issued its Final Opinion and Order remanding the
decision to the County for further findings and conclusions of law. On December 6, 2019, the
Applicant initiated remand proceedings under local file no. 247-19-000899-A.
FISCAL IMPLICATIONS: none
ATTENDANCE: Matthew Martin, Associate Planner
u ►N • : T�111M
DATE: January 29, 2020
TO: Deschutes County Board of Commissioners
FROM: Matthew Martin, Associate Planner
RE: Public Hearing: Remand of Waveseer marijuana production proposal (247-18-
000128-AD/247-19-000899-A).
On January 29, 2020, the Board of Commissioners ("Board") will hold a public hearing to
consider the remanded decision of the Oregon Land Use Board of Appeals ("LUBA')
regarding marijuana production proposed by Waveseer of Oregon, LLC ("Applicant").
BACKGROUND
On February 7, 2018, an application was filed for an Administrative Determination (AD) to
establish marijuana production at 24350/24360 Dodds Road, Bend (tax maps and lots 18-13-
12 100/18-14-7 500) in the Exclusive Farm Use (EFU) zone. The Planning Division issued an
administrative decision without a public hearing on November 16, 2018, determining the
application met the applicable criteria.
On November 28, 2018, the Board issued Order No. 2018-075 authorizing the Board to serve
as the hearings body if an appeal was filed. A timely appeal of the approval was filed later
that day. The Board held a public hearing on November 19, 2018, the receive testimony on
the appeal. On February 22, 2019, the Board issued a final county decision denying the
request.
The Applicant appealed the county decision to the LUBA. On October 17, 2019, LUBA issued
its Final Opinion and Order remanding the decision to the County for further findings and
conclusions of law. On December 6, 2019, the Applicant initiated remand proceedings under
local file no. 247-19-000899-A.
The complete record for the project has been presented to the Board over several meetings.
The following is a list of the meetings and materials provided at each:
247-18-000128-AD/247-19-000899-A Page 1
• November 28, 2018, work session': Record prior to the submittal of the notice of
appeal.
• December 19, 2018, business meetingz: Notice of appeal materials.
• January 23, 2019, work session 3: Remaining record including materials submitted
since the provision of the meeting packet for the December 19 public hearing and the
close of the post hearing open record period.
• January 30, 2019, works session': Staff memo regarding deliberations.
• January 21, 20205: Staff memo regarding preparation for the remand public hearing.
Attached hereto are all documents added to the record since Board issued the final county
decision on February 22, 2019 including:
• 2020-01-21 Staff Memo with Attachment
• 2020-01-09 Mailed Notice of Public Hearing
• 2019-12-06 Application Materials - File No. 247-000870-A
• 2019-02-22 Decision of the Board
II. PUBLIC COMMENTS RECEIVED
The Planning Division mailed written notice of public hearing to property owners within 750
feet of the subject property on January 9, 2020. Staff has not receive any additional written
testimony at the time of this memorandum.
III. NEXT STEPS
At the conclusion of the testimony, the Board can consider the following options:
1. Close the public hearing and written record and begin deliberations;
2. Close the public hearing and leave the written record open to a date certain; or
3. Continue the public hearing to a date certain.
Pursuant to DCC 22.34.030(B), a final decision shall be made by April 4, 2020.
Attachments:
2020-01-21 Staff Memo
2020-01-21 Staff Memo Attachment - LUBANo.2019-036 - Final Opinion and Order
2020-01-09 Mailed Notice of Public Hearing
2019-12-06 Application Materials - File NO. 247-000870-A
2019-02-22 Decision of the Board
1 11 /28/18 Board Work Session: http://deschutescountyor.iqm2.com/Citizens/DetaiI Meeting.aspx?ID=1942
z 12/19/18 Board Business Meeting: http://deschutescountyor.iqm2.com/Citizens/Detail Meeting.aspx?ID=1964
3 1/23/19 Board Work Session: http://deschutescountyor.iqm2.com/Citizens/Detail Meeting aspx?ID=2087
4 1/30/19 Board Business Meeting: http://deschutescountyor.iqm2.com/Citizens/DetaiI Meeting.aspx?ID=2090
s 1/21/20 Board Tuesday Meeting: http://deschutescountyor.iqm2.com/Citizens/DetaiI Meeting.aspx?ID=2537
247-18-000128-AD/247-19-000899-A Page 2
� E � Co
•�°
MEMORANDUM
DATE: January 22, 2020
TO: Deschutes County Board of Commissioners
FROM: Matthew Martin, Associate Planner
RE: Preparation for public hearing on remand regarding Waveseer marijuana
production proposal (247-18-000128-AD/247-19-000899-A).
On February 22, 2019, the Board of Commissioners ('Board") issued a final county decision
on a marijuana production application, file no. 247-18-000128-AD. The Board denied the
request. The applicant, Waveseer of Oregon, LLC, appealed the county decision to the
Oregon Land Use Board of Appeals ("LUBA"). On October 17, 2019, LUBA issued its Final
Opinion and Order (attached) remanding the decision to the County for further findings and
conclusions of law. On December 6, 2019, the applicant initiated remand proceedings under
local file no. 247-19-000899-A. The Board will conduct a public hearing for this remand on
January 29, 2020.
The purpose of this meeting is to prepare the Board for the upcoming public hearing with a
staff presentation on the LUBA remand.
I. LUBA REMAND
The LUBA Final Opinion and Order remanded the county decision to address the following
issues:
A. Findings addressing the odor standards of Deschutes County Code (DCCI
18.11 6.330(B)(1 0).
In the Final Opinion and Order addressing odor, LUBA concluded:
Moreover, in the challenged final decision denying the application, the county did not
decide whether the application satisfied odor control standards for indoor marijuana
production, which may be an independent basis for denial if not satisfied. Under those
247-18-000128-AD/247-19-000899-A Page 1
circumstances, we remand the decision to the county for further proceedings. (Page 21 of
LUBA Final Opinion and Order)
B. Consideration of new findings addressing the youth active center separation
distance standards of DCC 18.116.330(13)(7)(a)(iv).
In the Final Opinion and Order addressing separation for youth activity centers, LUBA
concluded:
In so concluding, we emphasize the fact that the term 'youth activity center" is undefined
and not used elsewhere in the DCC. In addition, while we doubt whether a youth -oriented
farm use or residential use could limit a farm use on property that is zoned EFU, it may be
that, under different facts and circumstances, the county could interpret the undefined
phrase 'youth activity center" in a manner that would not violate ORS 215.416(8)(a) or ORS
475B.486. However, as applied in this case, the county's interpretation of 'youth activity
center" is contrary to ORS 215.416(8)(a) and ORS 475B.486. (Page 19 of the LUBA Final
Order and Opinion)
II. NEXT STEPS
The Board will conduct a public hearing on January 29, 2020
Pursuant to DCC 22.34.030(B), a final decision shall be made by April 4, 2020.
Attachments:
LUBANo.2019-036 -Final Opinion and Order
247-18-0001 28-AD/247-1 9-000899-A Page 2
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BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
WAVESEER OF OREGON, LLC,
Petitioner,
VS.
DESCHUTES COUNTY,
Respondent,
DOUGLAS KRUTZIKOWSKY and KIM McCREADY,
Intervenors -Respondents.
LUBA No. 2019-036
• ••M11
\l� •
Appeal from Deschutes County.
Corinne S. Celko, Portland, filed the petition for review and a reply brief,
and argued on behalf of petitioner. With her on the brief was Alex J. Berger and
Emerge Law Group.
D. Adam Smith, Assistant Legal Counsel, filed a joint response brief and
argued on behalf of respondent.
Will Van Vactor, Bend, filed a joint response brief and argued on behalf
of intervenors -respondents. With him on the brief was Van Vactor Law LLC.
ZAMUDIO, Board Chair; RUDD, Board Member; RYAN, Board
Member, participated in the decision.
RYAN, Board Member, concurred in the decision.
Page 1
REMANDED 10/17/2019
2
3 You are entitled to judicial review of this Order. Judicial review is
4 governed by the provisions of ORS 197.850.
Page 2
I
Opinion by Zamudio.
2 NATURE OF THE DECISION
3 Petitioner appeals a decision by the board of county commissioners
4 denying petitioner's application for a marijuana production facility on property
5 zoned for exclusive farm use (EFU).
6 BACKGROUND
7 The subject property is zoned EFU and is developed with a dwelling and a
8 barn. Record 691.1 The property south of the subject property, known as
9 Rhinestone Ranch, is zoned EFU and used as a family residence and working
10 ranch that also hosts youth -oriented equestrian activities, such as horseback
11 riding classes and camps and birthday or other celebratory event parties with
12 ponies, in exchange for a fee. Record 12, 79, 279. The property to the east of the
13 subject property, which we will refer to as the Dodds Road Residence, is
14 developed with a residence and outbuildings and also hosts youth -oriented 4-H
15 agricultural activities. Record 12, 559.
16 Petitioner applied to the county for administrative approval to develop an
17 indoor marijuana production facility that would consist of three structures. The
18 primary structure is a 36,000-square-foot structure that is planned to include areas
19 for growing, drying, processing, and storing marijuana. Record 693.One smaller
20 structure is planned to house electrical power systems, and another smaller
' All citations to the record in this decision refer to the amended record.
Page 3
I structure is planned to house a water treatment system and secure waste
2 management. Record 688. No outdoor production or greenhouses were proposed
3 as part of the application.2 Record 688, 693.
4 Oregon land use law preserves land for agricultural uses by restricting uses
5 allowed in EFU zones to farm uses and certain non -farm uses that the legislature
6 has determined are compatible with farming. See ORS 215.203(2)(a) (defining
7 "farm use"); ORS 215.283 (providing non -farm uses permitted in EFU zones in
8 nonmarginal lands counties); ORS 215.213 (providing nonfarm uses permitted in
9 exclusive farm use zones in counties that adopted marginal lands system prior to
10 1993). Marijuana is a crop for the purpose of "farm use" as defined in ORS
11 215.203.ORS 475B.526(1)(a). Marijuana production involves "the manufacture,
12 planting, cultivation, growing or harvesting of marijuana." ORS
13 475B.015(32)(a).3
2 The application materials state that the indoor facility is the first phase, and
a later phase will include an "outdoor grow." Record 693.
3 ORS 475B.015(32) provides:
"(a) `Produces' means the manufacture, planting, cultivation,
growing or harvesting of marijuana.
"(b) `Produces' does not include:
"(A) The drying of marijuana by a marijuana processor, if
the marijuana processor is not otherwise producing
marijuana; or
Page 4
1 A county may impose reasonable regulations on marijuana production
2 facilities. ORS 475B.486.4 The county adopted supplemental regulations that
3 impose restrictions on marijuana production and processing. As pertinent here,
4 the applicable Deschutes County Code (DCC) 18.116.330(B)(7)(a)(iv) provided
5 that marijuana production and processing uses must be located a minimum of
6 1,000 feet from "[a] youth activity center," "measured from the lot line of the
"(B) The cultivation and growing of an immature marijuana
plant by a marijuana processor, marijuana wholesaler
or marijuana retailer if the marijuana processor,
marijuana wholesaler or marijuana retailer purchased
or otherwise received the plant from a licensed
marijuana producer."
ORS 475B.015(16) provides:
"(a) `Manufacture' means producing, propagating, preparing,
compounding, converting or processing a marijuana item,
either directly or indirectly, by extracting from substances of
natural origin.
"(b) `Manufacture' includes any packaging or repackaging of a
marijuana item or the labeling or relabeling of a container
containing a marijuana item."
4 ORS 475B.486(2) provides, in part:
"Notwithstanding ORS 30.935, 215.253(l) or 633.738, the
governing body of a city or county may adopt ordinances that
impose reasonable regulations on the operation of businesses
located at premises for which a license or certificate has been issued
under ORS 475B.010 to 475B.545 if the premises are located in the
area subject to the jurisdiction of the city or county[.]"
Page 5
1 affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the
2 buildings and land area occupied by the marijuana producer or marijuana
3 processor."' We refer to that requirement in this decision as the "separation
4 distance" or the "separation buffer." That limitation applies to marijuana
5 production in the EFU, Multiple Use Agriculture (MUA-10), and Rural Industrial
6 (RI) zones. DCC 18.116.330(A)(1); Record 328.
7 The county planning department administratively approved the
8 application. Intervenors -respondents (intervenors) appealed that decision to the
9 board of county commissioners, which, after a de novo hearing, denied the
10 application based solely on its determination that the application did not comply
11 with the separation buffer due to youth -related activities on the adjacent
12 properties, the Rhinestone Ranch and the Dodds Road Residence. This appeal
13 followed.
5 In this opinion, we refer to the version of DCC 18.116.330 that applied at
the time the application was submitted in this case, February 7, 2018. See ORS
215.427(3)(a) ("approval or denial of the application shall be based upon the
standards and criteria that were applicable at the time the application was first
submitted"). In October 2018, the county adopted Ordinance No. 2018-012
amending DCC chapter 18. That decision was challenged in Deschutes Farm
Bureau v. Deschutes County, Or LUBA (LUBA No 2018-036, Oct 9,
2019). The county later repealed Ordinance No. 2018-012. Those changes do not
affect the applicable criteria and analysis in this case.
I THIRD ASSIGNMENT OF ERROR
2 In the challenged decision, the board of county commissioners interpreted
3 DCC 18.116.330(B)(7)(a)(iv) as follows:
4 "The term youth activity center (`YAC') is not defined in DCC.
5 Testimony in the record indicates the property to the south of the
6 subject property [Rhinestone Ranch] is used for youth oriented
7 equestrian activities for children ages 5-18 with approximately 50-
8 70 kids coming to the property on a weekly basis. These activities
9 are provided to the general public, in association with 4-H programs,
10 and as part of homeschooling curriculum. Additional testimony in
11 the record indicates the property to the east of the subject property
12 [Dodds Road Residence] is used for regularly held 4-H related
13 activities. Written testimony submitted by Michael Gottlieb,
14 attorney for the property owner, indicates they, `Host 4-H clubs
15 from January -August every year, when club meetings and practices
16 are held on the property bi-weekly. In addition to the residence on
17 the property, the activities utilize an outbuilding and an outdoor
18 facility pen.'
19 "The applicant responded that the activities do not constitute a YAC.
20 This is based on the opinion that the Rhinestone Ranch is a business
21 operating on a working farm/horse ranch that offers horse -related
22 services to both adults and children for a fee. The applicant noted
23 these activities constitute agri-tourism or other commercial events
24 and activities, uses that require land use approval. The applicant
25 further opines that hosting a 4H/FFA club meeting, offering home-
26 schooling, or having youth gatherings, does not make the residential
27 property or ranch into [a] YAC.
28 "Based on substantial evidence in the record, the Board finds that
29 the identified 4-H and youth oriented equestrian activities on the
30 neighboring properties rise to the level of a YAC due to their
31 inherent characteristic as being a place where activities center
32 around youth on a regular basis. Both referenced properties are
33 within 1,000 feet of the closest point of the buildings and land area
34 proposed by the marijuana producer. Therefore, the proposal does
Page 7
1 not comply with the separation distance requirement of DCC
2 18.116.330(B)(7)(a)(iv)." Record 12.
3 Petitioner concedes that the county is authorized to impose "reasonable
4 limitations" on the location of a marijuana production facility. ORS
5 475B.486(1)(g).6 In the third assignment of error, we understand petitioner to
6 argue that the county interpreted DCC 18.116.330(B)(7)(a)(iv) in a manner that
7 renders that regulation unreasonable and, therefore, the county's interpretation
8 improperly construed applicable law in a manner that is contrary to state statute.
9 ORS 197.835(9)(a)(D); ORS 197.829(1)(d).'
6 ORS 475B.486(1)(g) provides:
"(1) For purposes of this section, `reasonable regulations' includes:
"(g) Reasonable limitations on where a premises for which
a license or certificate may be issued under ORS
475B.010 to 475B.545 may be located."
7 ORS 197.835(9)(a)(D) provides that LUBA "shall reverse or remand the
land use decision under review if the board finds" that the local government
"[i]mproperly construed the applicable law[.]"
ORS 197.829(1) provides:
"The Land Use Board of Appeals shall affirm a local government's
interpretation of its comprehensive plan and land use regulations,
unless the board determines that the local government's
interpretation:
"(a) Is inconsistent with the express language of the
comprehensive plan or land use regulation;
Page 8
1 Petitioner argues that the county impermissibly interpreted "youth activity
2 center" to include "any place where youth activities `regularly' occur, regardless
3 of whether property owners obtain necessary permits for the activities and
4 events." Petition for Review 34. Petitioner argues that the county's interpretation
5 makes it impossible for a marijuana producer to identify properties within the
6 county where they will be able to conduct marijuana production activities
7 because, without a recorded land use approval or permit to qualify land uses as a
8 "youth activity center," a marijuana producer will have no notice whether any
9 youth activity centers exist within the required separation buffer area. According
10 to petitioner, the county's "expansive and amorphous interpretation of `youth
11 activity center' renders the separation distance requirement an unreasonable
12 limitation on where a marijuana producer may be located" and violates ORS
13 475B.486(2). Petition for Review 35-36.
14 The county first responds that petitioner's argument under ORS
15 475B.486(2) is waived because petitioner did not present that argument to the
16 county in the first instance, as required to preserve an issue for LUBA review
"(b) Is inconsistent with the purpose for the comprehensive plan
or land use regulation;
"(c) Is inconsistent with the underlying policy that provides the
basis for the comprehensive plan or land use regulation; or
"(d) Is contrary to a state statute, land use goal or rule that the
comprehensive plan provision or land use regulation
implements."
Page 9
1 under ORS 197.763(1).8 Petitioner replies with citations to the record indicating
2 that petitioner raised the issue before the county by asserting that the
3 interpretation of DCC 18. 1 16.330(B)(7)(a)(iv) that the appellants advocated, and
4 that the county ultimately adopted, is not reasonable. Reply Brief 5 (citing record
5 809 278, 279). We have reviewed those cited portions of the record. The most
6 relevant is the following written argument petitioner submitted to the county
7 during the local proceeding:
8 "An unpermitted, unregistered, for -profit business operating on a
9 working farm/horse ranch that offers horse -related services to both
10 adults and children for a fee does not constitute a `youth activity
11 center.' If it did, the slippery slope created by such interpretation
12 would cause illogical and unreasonable results. How would a
13 potential applicant be able to determine if a particular property was
14 feasible and compliant for a marijuana production use? What would
15 prevent neighbors from merely claiming that their property engages
16 in youth activities if no permit is required? Following this faulty
17 logic essentially vitiates any real meaning of the term `youth activity
18 center,' since, according to the appellant, any property where
19 children are present results in a `youth activity center."' Record 80.
8 ORS 197.763(1) provides:
"An issue which may be the basis for an appeal to the Land Use
Board of Appeals shall be raised not later than the close of the record
at or following the final evidentiary hearing on the proposal before
the local government. Such issues shall be raised and accompanied
by statements or evidence sufficient to afford the governing body,
planning commission, hearings body or hearings officer, and the
parties an adequate opportunity to respond to each issue."
Page 10
1 We have previously explained that where a petitioner's arguments
2 substantively address an uncited, applicable standard, the issue may be preserved
3 for our review, notwithstanding the failure to cite the specific provision relied
4 upon on appeal. See, e.g., Kine v. City of Bend, 72 Or LUBA 423 (2015) (where
5 a petitioner argues below that the proposal is not consistent with the
6 comprehensive plan for reasons that are relevant considerations under several
7 applicable comprehensive plan policies, the petitioner may challenge the
8 adequacy of the findings that were ultimately adopted to establish consistency
9 with those plan policies, even if the petitioner failed to cite the plan policies
10 specifically); Wetherell v. Douglas County, 58 Or LUBA 101 (2008) (testimony
11 that the applicant has not shown why a parcel formerly part of a larger ranch
12 cannot be used in conjunction with adjacent and nearby farm properties is
13 sufficient to raise the issue of compliance with OAR 660-033-0030(3),
14 notwithstanding that the petitioner failed to cite the rule). Here, petitioner did not
15 specifically cite ORS 475B.486 during the local proceeding; however, petitioner
16 challenged the reasonableness of the interpretation that the county ultimately
17 adopted, making essentially the same argument petitioner raises on appeal under
18 ORS 475B.486. The county does not dispute that DCC 18.116.330(B)(7)(a)(iv)
19 implements and must adhere to ORS 475B.486. We conclude that petitioner
20 sufficiently preserved for our review the issue of whether the county's
21 interpretation of DCC 18.116.330(B)(7)(a)(iv) rendered that regulation
22 unreasonable and inconsistent with ORS 475B.486.
Page 11
I On the merits, the county responds that the youth -oriented equine activities
2 on the Rhinestone Ranch are farm uses permitted outright in the EFU zone. ORS
3 215.203(2)(a); DCC 18.04.030.9 The county also argues that the youth -related
4 activities at the Dodds Road Residence are accessory to the residential and farm
5 uses on that property. Response Brief 4. According to the county, those issues
6 were decided by staff during the local proceeding and, thus, petitioner is
7 precluded from arguing on appeal that those unpermitted uses cannot reasonably
8 constitute youth activity centers. In support of that argument, the county points
9 to county staff testimony during a board of county commissioners' work session
10 on January 23, 2019, at which the board of commissioners received information
11 from county planning staff in preparation for deliberation on the local appeal in
12 this case. Record 31. At that work session, county planning staff explained that
13 petitioner had argued that the horse -related uses on the Rhinestone Ranch
14 constitute a farm use and not a youth activity center. The county planning staff
15 opined the "equine use on the property for training, riding and education * * *
16 appears to qualify as farm use." Record 31. The county also points to the original
17 staff report, which supported the administrative approval, in which staff opined
9 ORS 215.203(2)(a) and DCC 18.04.030 define "farm use," in relevant part,
as follows:
"`Farm use' also includes the current employment of land for the
primary purpose of obtaining a profit in money by stabling or
training equines including but not limited to providing riding
lessons, training clinics and schooling shows."
Page 12
I that the 4-H youth agricultural "activities are a function of, and accessory to, the
2 residential and farm uses of the adjacent property" and thus, did not constitute a
3 youth activity center. Record 3 82."
4 The county argues those determinations constitute separate final land use
5 decisions that petitioner did not challenge by filing separate appeals and, thus,
6 those decisions may not be challenged in this decision. The county is mistaken.
7 The county planning staff report was an initial administrative decision that was
8 appealed to the board of commissioners. It was not a "final" decision within the
9 meaning of ORS 197.015(10)(a) or OAR 661-010-0010(3). Similarly, the county
10 planning staff s verbal statement during a work session is not a land use decision,
11 but merely a statement made during a work session as part of the board of county
12 commissioners' proceeding that concluded in the final decision challenged in this
13 appeal. The board of county commissioners did not incorporate or otherwise
14 adopt those staff determinations in its final decision. See Record 10 (adopting
io Staff found:
"[A] `youth activity center' would necessarily require land use
review, either an administrative determination or conditional use
permit, and would not be allowed outright as part of residential or
agricultural use or any accessory use thereto. Since no such permits
have been obtained by any property within 1,000 feet of the subject
property, staff finds that no permitted `youth activity center' exists
in this area. Further, staff finds the noted 4-H related activities are a
function of, and accessory to, the residential and farm uses of the
adjacent property. * * *" Record 382.
Page 13
I only a portion of the staff report, but not adopting the findings of compliance
2 with DCC 18.116.330(B)(7)(a)(iv)).
3 More importantly, the county is mistaken that those staff determinations
4 are dispositive in this appeal. We assume for the purpose of this decision that the
5 county is correct that the Rhinestone Ranch equine use is a farm use that does not
6 require separate land use approval, and the 4-H related activities at the Dodds
7 Road Residence are accessory to the residential use. However, those assumptions
8 do not answer the primary question presented by petitioner: whether the county
9 could properly characterize farm uses and residential uses that "center around
10 youth on a regular basis" to also constitute "youth activity center(s)" so as to
11 preclude marijuana production on EFU-zoned property within the separation
12 distance.
13 The phrase "youth activity center" is not defined in the DCC and does not
14 appear in any other section of the DCC. "Youth activity center" is not an
15 identified permitted use in the EFU zone, either as an outright permitted use,
16 accessory use, or conditional use. See generally DCC Chapter 18.16 (providing
17 uses permitted in the EFU zone). Differently, marijuana production is a farm use
18 that is permitted in the EFU zone, subject only to reasonable restrictions adopted
19 by the county as authorized by ORS 475B.486(2). The essential question is
20 whether the county's interpretation of DCC 18.116.330(B)(7)(a)(iv)
21 demonstrates that the regulation is reasonable under ORS 475B.486, as applied
22 by the county to deny to the application in this case.
Page 14
1 Petitioner cites Diesel v. Jackson County, 284 Or App 301, 391 P3d 973
2 (2017), in support of its argument that the county's interpretation results in an
3 unreasonable limitation on marijuana production. In Diesel, the petitioner
4 challenged two county ordinances that amended the Jackson County Land
5 Development Ordinance pursuant to former ORS 475B.340(1)(a) and (g) (2015),
6 renumbered as ORS 47513.486 (2017), which allowed local governments to
7 adopt "reasonable conditions on the manner in which a marijuana producer
8 licensed under [the state's recreational marijuana program] may produce
9 marijuana[,]" and "[r]easonable limitations on where a premises for which a
10 license has been issued [to produce marijuana] may be located." Diesel v. Jackson
11 County, 74 Or LUBA 286, 288 (LUBA Nos 2016-039/055, Sep 13, 2016), aff'd,
12 284 Or App 301, 391 P3d 973 (2017) (quoting former ORS 475B.340(1)(a) and
13 (g) (2015)). The amendments allowed marijuana production in EFU, forest, and
14 industrial zones, but did not allow marijuana production in rural residential zones.
15 Relying on federal First Amendment case law, the petitioner argued that to
16 establish that the regulations were reasonable, the county was required to
17 establish that the regulations serve a substantial government interest. We rejected
18 that argument, reasoning that the use of the phrase "reasonable regulation" "does
19 not mean that the legislature intended to import into review of local zoning codes
20 the doctrines and standards of review that courts have applied to First
21 Amendment speech cases." Diesel, 74 Or LUBA at 296.
Page 15
I ORS 475B.486 lists types of regulations that "reasonable regulations"
2 include. However, the term "reasonable" is not defined in the statutes regulating
3 marijuana production. In Diesel, we observed that "reasonable" is defined in the
4 dictionary as "[ 1 ] b: being or remaining within the bounds of reason: not extreme:
5 not excessive * * *; c: MODERATE : as (1) not demanding too much[.]
6 Webster's Third New Int'l Dictionary 1892 (unabridged ed 2002)." Diesel, 74 Or
7 LUBA at 297.
8 We also reviewed legislative history and observed that one legislator
9 commented that a local regulation would be unreasonable if a local government
10 "* * * use[s] their local zoning code to effectively eliminate
11 marijuana businesses or grow sites in their communities by, for
12 example, finding zones in which it is very difficult to site these
13 businesses, or putting them on the edge of town where nobody wants
14 to go or in some other way making it so difficult for these businesses
15 to be sited that the businesses won't site in their communities."
16 Audio Recording, House of Representatives, FIB 3400, June 24,
17 2015, 1:45:30-1:46:03 (statement of Representative Ken Helm)."
18 Diesel, 74 Or LUBA at 297.
19 We explained that, in that case, "the concerns stated by that legislator about
20 the reasonableness of zoning regulations do not appear to be present" because the
21 county's regulations allowed marijuana production in the EFU zone and on lands
22 zoned farm and forest, which is a significant land area in the county. Id.
23 Accordingly, we concluded that the county's regulations were reasonable.
24 The petitioner sought judicial review of our decision, and the Court of
25 Appeals affirmed, noting twice that the court's decision was limited to the facts
Page 16
1 of that case and the arguments presented by the petitioner, and that their holding
2 did not "define what is a `reasonable regulation' of marijuana * * * for all
3 purposes." Diesel, 284 Or App at 312.
4 Diesel is of limited usefulness in this case. Diesel does not include any
5 broadly applicable ruling regarding what does and does not constitute a
6 reasonable regulation of marijuana production. That case is also factually and
7 legally distinguishable. Diesel concerned the county's prohibition of marijuana
8 production in rural residential zones. Differently, here, the county regulation
9 limits, and in this case, prohibits, marijuana production on EFU-zoned property
10 due to surrounding youth -oriented activities within the separation buffer.
11 In this case, petitioner does not argue that the county's interpretation of the
12 youth activity center separation buffer effectively eliminates marijuana
13 production sites in Deschutes County. Instead, petitioner argues the county's
14 interpretation of the youth activity center separation buffer, as applied in this
15 case, creates too much uncertainty for an applicant for marijuana production to
16 establish that the application satisfies DCC 18.116.330(B)(7)(a)(iv).
17 Although petitioner does not cite ORS 215.416(8)(a), petitioner's
18 reasonableness argument invokes that statute, which requires that permit
19 approval standards and criteria set out in local regulations inform interested
20 parties of the basis on which an application will be approved or denied.11 See Lee
11 ORS 215.416(8)(a) provides:
Page 17
I v. City of Portland, 57 Or App 798, 802-03, 646 P2d 662 (1982) (interpreting
2 parallel provisions of ORS 227.173(1) applicable to cities); Spiering v. Yamhill
3 County, 25 Or LUBA 695, 715 (1993); Hoffmann v. Deschutes County, 61 Or
4 LUBA 173, 229, aff'd, 237 Or App 531, 240 P3d 79, rev den, 349 Or 479 (2010);
5 see also Davenport v. City of Tigard, 121 Or App 135, 141, 854 P2d 483 (1993)
6 (observing that the terms "standards and criteria," "assure both proponents and
7 opponents of an application that the substantive factors that are actually applied
8 and that have a meaningful impact on the decision permitting or denying an
9 application will remain constant throughout the proceedings").
10 There is no dispute that marijuana is a crop for purposes of farm use. ORS
11 475B.526(1)(a). Thus, as a starting point, marijuana production is an allowed
12 farm use on property that is zoned EFU. ORS 215.203. We agree with petitioner
13 that the county's broad interpretation of "youth activity center" is unreasonable
14 because there is no way for an applicant to determine if a particular EFU-zoned
15 property could be used for marijuana production. Instead, the county
16 interpretation would allow the county to deny a marijuana production application
"Approval or denial of a permit application shall be based on
standards and criteria which shall be set forth in the zoning
ordinance or other appropriate ordinance or regulation of the county
and which shall relate approval or denial of a permit application to
the zoning ordinance and comprehensive plan for the area in which
the proposed use of land would occur and to the zoning ordinance
and comprehensive plan for the county as a whole."
Page 18
I when any neighboring property owner testified that youth -oriented activities
2 regularly occur on a neighboring property within the separation buffer. Those
3 youth -oriented activities may occur outdoors, or in a farm structure, as part of an
4 existing farm use, or may occur in and around a residence as accessory to a
5 residential use. In any event, a property owner or applicant would not have any
6 practical way of identifying whether those youth -oriented activities are occurring
7 within the separation buffer surrounding any particular EFU-zoned property. As
8 applied in this case, the county's interpretation of youth activity center is so
9 amorphous and uncertain that we conclude it is unreasonable.
10 In so concluding, we emphasize the fact that the term "youth activity
11 center" is undefined and not used elsewhere in the DCC. In addition, while we
12 doubt whether a youth -oriented farm use or residential use could limit a farm use
13 on property that is zoned EFU, it may be that, under different facts and
14 circumstances, the county could interpret the undefined phrase "youth activity
15 center" in a manner that would not violate ORS 215.416(8)(a) or ORS
16 47513.486.12 However, as applied in this case, the county's interpretation of
17 "youth activity center" is contrary to ORS 215.416(8)(a) and ORS 47513.486.
12 As noted above, petitioner concedes that the county is authorized to impose
"reasonable limitations" on the location of a marijuana production facility under
ORS 475B.486(1)(g). Petitioner does not address the tension among ORS
475B.526(1)(a), ORS 215.203, and ORS 475B.486(1)(g). It is not clear to us that
ORS 475B.486(1)(g) authorizes a county to impose a local regulation that could
be interpreted and applied in a manner that entirely prohibits marijuana
Page 19
I The third assignment of error is sustained.
2 FIRST AND SECOND ASSIGNMENTS OF ERROR
3 In the first assignment of error, petitioner challenges the county's
4 interpretation of "youth activity center" as inconsistent with the express language
5 of DCC 18.116.330(B)(7)(a)(iv). In the second assignment of error, petitioner
6 argues that the county's recognition of unpermitted or accessory uses on the
7 Rhinestone Ranch and the Dodds Road Residence to prohibit marijuana
8 production misconstrues applicable law and is not supported by adequate
9 findings or substantial evidence.
10 We remand the county's decision as inconsistent with ORS 215.416(8)(a)
11 and ORS 475B.486 under the third assignment of error. Accordingly, we need
12 not and do not reach the first and second assignments of error.
13 DISPOSITION
14 Petitioner argues that the county's decision should be reversed under OAR
15 661-010-0071(1)(c), which provides that LUBA will reverse a land use decision
16 when "[t]he decision violates a provision of applicable law and is prohibited as a
17 matter of law." Petition for Review 36. We ultimately agree with petitioner that
production on EFU-zoned property, because such limitation may conflict with
ORS 475B.526(1)(a) and ORS 215.203. See also ORS 215.243(4) ("Exclusive
farm use zoning as provided by law, substantially limits alternatives to the use of
rural land and, with the importance of rural lands to the public, justifies incentives
and privileges offered to encourage owners of rural lands to hold such lands in
exclusive farm use zones."). However, those issues have not been raised or
briefed in this case. Thus, we note them, but do not address them further.
Page 20
1 the county's interpretation of DCC 18.116.330(B)(7)(a)(iv) violates ORS
2 215.416(8)(a) and ORS 475B.486. However, petitioner has not explained why
3 the county's denial is "prohibited as a matter of law," and it is not apparent to us
4 that it is. We do not understand petitioner to argue that it is impossible for the
5 county to interpret DCC 18.116.330(B)(7)(a)(iv) in a manner that is consistent
6 with ORS 475B.486. Moreover, in the challenged final decision denying the
7 application, the county did not decide whether the application satisfied odor
8 control standards for indoor marijuana production, which may be an independent
9 basis for denial if not satisfied. 13 Record 12-13. Under those circumstances, we
10 remand the decision to the county for further proceedings. Shadrin v. Clackamas
11 County, 34 Or LUBA 154 (1998).
12 The county's decision is remanded.
13 RYAN, Board Member, concurring.
14 I concur in the resolution of the appeal. I write separately because I would
15 also sustain petitioner's first assignment of error and conclude that the board of
16 county commissioners improperly construed the phrase "youth activity center."
17 ORS 197.835(9)(a)(D). Specifically, I agree with petitioner that the board of
18 county commissioners' interpretation of the phrase is not required to be affirmed
13 Petitioner incorrectly states that "all other issues have already been resolved
in favor of granting Petitioner's application." Petition for Review 31.
Page 21
I under ORS 197.829(1)(a), because the interpretation is "inconsistent with the
2 express language of the * * * land use regulation."
3 In relevant part, the board of county commissioners interpreted the phrase
4 "youth activity center" as "a place where activities center around youth on a
5 regular basis." Record 12. First, the board of county commissioners'
6 interpretation improperly interprets the word "center" as a verb: "a place where
7 activities center around youth on a regular basis." Id. (emphasis added). The
8 word "center," however, is the noun in the phrase, modified by the adjective
9 "youth activity." There is simply no legitimate basis for the board of county
10 commissioners to interpret and recharacterize the word "center" as a verb, and
11 the recharacterization significantly changes the meaning of the word from its
12 intended usage as a noun.
13 Second, and relatedly, the board of county commissioners' interpretation
14 fails to give effect to the word "center" as used in the phrase. The word "center"
15 is not defined in the DCC. Its plain, ordinary meaning is "Ih: a concentration of
16 requisite facilities for an activity, pursuit or interest along with various likely
17 adjunct conveniences: (shopping center), (medical center), (amusement center)."
18 Webster's Third New Int'l Dictionary 362 (unabridged ed 2002). Included in the
19 meaning of the word "center" is the term "facilit[y]," which is defined as "5b:
20 something (as a hospital, machinery, plumbing) that is built, constructed,
21 installed, or established to perform some particular function or to serve or
22 facilitate some particular end." Id. at 812-13. According to the plain, ordinary
Page 22
I meaning of "center," then, a "youth activity center" is a place "built, constructed,
2 installed, or established" to serve or facilitate "youth activit[ies]." The board of
3 county commissioners' interpretation does not give appropriate effect to the word
4 "center" as used in the phrase, but rather interprets the phrase as if the word
5 "center" is not present in the phrase.
6 The board of county commissioners' interpretation is also inconsistent
7 with context provided by other usage of the word "center" in the DCC. For
8 example, as petitioner points out, the DCC defines "community center" as "a
9 community meeting, retreat and activity facility serving the social or recreational
10 needs of community residents or visitors." DCC 18.04.030 (emphasis added).
11 The DCC similarly defines "child care center" as "a childcare facility that was
12 not constructed as a single family home that is certified to care for 12 or fewer
13 children." Id. (emphasis added). For the above reasons, I would sustain
14 petitioners' first assignment of error and conclude that the county improperly
15 construed the phrase "youth activity center" to broadly encompass any location
16 where "youth activities" occur, without giving effect to the word "center" as it is
17 used in the phrase, and in a manner that is inconsistent with other uses of the
18 word "center" in the DCC.
Page 23
LAW
IMEMERGE_ GROUP
621 SW Morrison St., Suite 900, Portland, OR 97205
December 4, 2019
VIA E-MAIL AND U.S. MAIL (matt. martin@deschutes.org)
Anthony DeBone, Chair
Board of County Commissioners
Deschutes County
c/o Matt Martin, Associate Planner
PO Box 6005
Bend, OR 97708-6005
CORINNE CELKO
Admitted in Oregon
(503)467-0396
corinne@emergelawgroup.com
r
DEC 0 6 2019
Deschutes County CDD
Re: Waveseer of Oregon, LLC; Case File No. 247-18-000899-A
Applicant's Request for Deschutes County to Proceed with Application on Remand
Dear Chair DeBone and Members of the Comrnission:
As you know, this firm represents Waveseer of Oregon, LLC regarding the above -referenced land use application.
In accordance with the Oregon Land Use Board of Appeals' ("LUBA's") Final Opinion and Order in Waveseer of
Oregon, LLC v. Deschutes County, et al, LUBA No. 2019-036, we request that the County initiate remand
proceedings pursuant to Oregon Revised Statute ("ORS") 215.435(2) and Deschutes County Code 22.34.030(D).
We understand that no interested party filed a petition for judicial review of the Final Opinion and Order.
Per the County's request, please see the enclosed executed Land Use Application and our check number 2317, in
the amount of $5,000.00, as payment of the fee.
Considering that the issues on remand are narrow and limited and, in the interest of efficiency and time, we
respectfully request that the remand hearing be scheduled as soon as possible.
Sincerely,
r
t�
Corinne Celko
Attorney
Enclosures
cc: Client (via e-mail only; wlencls.)
EMERGE LAW GROUP
DocuSign Envelope ID: C79A877^6+9-A986-4164-90E9-1D9AB8C9D7D4
4 0"
File No. 247-
CI �" �
COMMUNITY DEVELOPMENT
LAND USEAPPLICATION
INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED
1. Complete the application form and provide appropriate original signatures. To ensure timely
processing of your application, all materials must be submitted on single -sided, 8.5" x 11" paper.
Do not use binders, tabs/dividers, staples or tape.
2. This application shall include one full-sized plan set (to scale) and one plan set reduced to no
larger than 11"x 17". Include a plot plan that shows all property lines and existing and proposed
structures, parking, landscaping, lighting, etc.
3. Include a copy of the current deed showing the property owners.
4. Attach correct fee.
5. All applicable standards and criteria must be addressed in writing prior to acceptance of the
application. Detailed descriptions, maps and other relevant information must be attached to
the application.
TYPE OF APPLICATION (check one): FEE: $5,000.00
Administrative Determination (AD)_ Partition (MP) _ Site Plan (SP) _
Conditional Use (CU) _ Subdivision (TP) _ Variance (V) _
Declaratory Ruling (DR) _ Temporary Use (TU) _ Setback Exception (SE) _
OtherXX - Land Use Remand
Proceeding
Applicant's Name (print): Waveseer of Oregon, LLC Phone: 3( 12 ) 771-1300
Mailing Address: 24350 Dodds Road City/State/Zip: Bend, OR 97701
Applicant's Email Address: dr ssen@waveseerinc.corn
Property Owner/s Name (if different)*: Peter Winsor Phone: ( )
Mailing Address: 24350 Dodds Road City/State/Zip: Bend, OR 97701
1. Request: Remand proceedings for Land Use Application #247-18-000899-A, pursuant to LUBA
2. Property Description: Township 18S Range 13E 14E Section 12 7 Tax Lot 100/500
3. Property Zone(s): EFUAL Property Size (acres or sq. ft.): 100.49 acres
4. Lot of Record? (State reason): Yes, parcel created by partition in 1981
5. Property Address:24360 & 24350 Dodds Road Bend OR 97701
(over)
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 i P O, Box 6005, Bend, OR 97708-6005
Z; (541) 388 6575 @ cdd@deschutes .org ® v~N,deschutes:org/cd
Rev 5/18
DocuSign Envelope ID: C79A8769-A986-4164-90E9-1D9ABBC9D7D4
6. Present Use of Property: Pasture/grazing
7. Existing Structures: One (1) dwelling - 1,080 sq. ft.; One (1) loft barn - 1,920 sq. ft.
8. Property will be served by: Sewer Onsite Disposal System septic 247-s25218
9. Domestic Water Source: Domestic well
To the best of my knowledge, the proposal complies with all previous conditions of approval and all
other applicable local, state, and federal laws. By signing this application, I acknowledge that
Deschutes County planning staff may make a site visit(s) to the address(es) listed on this application
in order to evaluate the property(ies) with the Deschutes County Code criteria applicable to the land
use request(s) submitted. Please describe any special circumstances regarding a potential site visit:
Applicant's Signature: Lal'`A t~e Date:12/4/2019
12/4/2019
Property Owner's Signature (if different)*:�Date;_
Agent's Name (if applicable): Corinne Celko Phone: (503 ) _ 227-4525___
Mailing Address: 621 SW Morrison, Suite 900 City/State/Zip:Portia nd. OR 97205
Agent's Email Address: corinne(@emergelaweroup.com
*If this application is not signed by the property owner, a letter authorizing signature by the
applicant must be attached. By signing this application, the applicant understands and
agrees that Deschutes County may require a deposit for hearings officers' fees prior to the
application being deemed complete. If the application is heard by a hearings officer, the
applicant will be responsible for the actual costs of the hearings officer.
2
Mailing Date:
Friday, February 22, 2019
ME WED
LEGAL COUNSEL
DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
FILE NUMBERS: 247-18-000128-AD / 477-LR / 877-LL / 899-A
APPLICANT: Waveseer of Oregon, LLC
OWNER: Peter Winsor
APPLICANT'S ATTORNEY: Corinne Celko & Alex Berger, Emerge Law Group
APPELLANT: Kim McCready
APPELLANT'S ATTORNEY: Liz Dickson, Dickson Hatfield LLP
STAFF REVIEWER: Matthew Martin, Associate Planner
LOCATION: The subject property consists of two tax lots, identified on the
County Assessor's Map as 18-13-12 Tax Lot 100 and 18-14-07
Tax Lot 500. The addresses for the subject properties are 24350
and 24360 Dodds Road, Bend,
ADMINISTRATIVE
DECISION ISSUED:
APPEAL FILED:
HEARING DATE:
RECORD CLOSED:
November 16, 2018
November 28, 2018
December 19, 2018
January 15, 2019
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A
Page 1 of 8
DC 2019-0
In this decision, the Board of County Commissioners ("Board") considered the appellant's appeal of
the November 16, 2018, administrative findings and decision (file nos. 247-18-000128-AD / 477-LR /
877-LL; "Administrative Decision"), The Board exercised its discretion to hear the appeal de novo.
The Board received four memoranda from Matt Martin, Associate Planner. The following lists the
memoranda by date:
• November 28, 2018 (presented November 28, 2018): Included the applicant's materials,
administrative decision, and record prior to the submittal of the notice of appeal.
• December 19, 2018 (presented December 19, 2018): Included the appellant's notice of
appeal.
• January 16, 2019 (presented January 23, 2019): Included a summary of the testimony and
materials received since the December 19 public hearing and the close of the post hearing
open record period and a decision matrix.
• January 30, 2019 (presented January 30, 2019): Included a summary of the information
previously provided to the Board.
The Board conducted a public hearing on December 19, 2018, and deliberated on January 30, 2019.
The Board voted 2-0 (Henderson and Adair; Debone did not participate in the deliberations and
decision) to overturn the administrative decision approving the land use permit to establish
marijuana production (file no. 247-18-000128-AD) on the subject property. The Board found that
the applicant failed to demonstrate the marijuana production met the separation distance
requirements of Deschutes County Code ("DCC") 18.116.330(B)(7). The administrative decision on
the lot of record verification (file no. 247-18-000477-LR) and lot consolidation (file no. 247-18-
000877-LL) were not contested.
Title 18 of the Deschutes County Code (DCC), County Zoning
Chapter 18.04. Title, Purpose and Definitions
Chapter 18.16. Exclusive Farm Use Zones
Chapter 18.80. Airport Safety Combining Zone
Chapter 18.116. Supplementary Provisions
Title 22, Deschutes County Development Procedures Ordinance
Oregon Revised Statutes Chapter 92, Subdivisions and Partitions
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 2 of 8
II1—MAM 3
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the November 16, 2018, administrative decision in Section II (Basic
Findings), subsections A (Location), B (Proposal), C (Lot of Record), D (Zoning), E (Site Description), F
(Notice of Application), G (Agency Comments), H (Public Comments), and I (Review Period) with the
addition of the following:
J. PROCEDURAL. HISTORY: The administrative decision was issued on November 16, 2018. An
appeal was timely filed by the appellant during the 12-day appeal period on November 28,
2018. The Board used their discretion to serve asthe hearings bodyfor the appellant's appeal
to be heard de novo pursuant to Board Order 2018-075, dated November 28, 2018.
A public hearing was held on December 19, 2018. The appellant, Kim McCready, was
represented by Liz Dickson, Attorney at Law. The applicant, Waveseer of Oregon LLC, was
represented by Corinne Celko, Attorney at Law. The Board heard testimony and established
an open record period that closed on January 15, 2019.
The Board conducted deliberations at their regular business meeting on January 30, 2019.
Via a 2-0 vote, the Board found the proposal did not comply with the applicable criteria
regarding separation distances under DCC 18.113.330(B)(7), detailed below. For this reason,
the Board overturns the administrative decision approving the application. The
administrative decision on the lot of record verification and lot were not contested in the
notice of appeal or contemplated in the Board's decision.
IV. FINDINGS:
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 November 16, 2018, Administrative Decision in the Findings
section, except for the findings relating to the DCC Sections identified below. To the extent there
are conflicts between any of the findings identified above and the findings below, the findings and
conclusions below shall control.
A. CHAPTER 18.80. AIRPORT SAFETY COMBINING ZONE
The provisions of DCC 18.80.020 shall only apply to unincorporated areas located under
airport imaginary surfaces and zones, including approach surfaces, transitional surfaces,
horizontal surfaces, conical surfaces and runway protection zones. While DCC 18.80
identifies dimensions for the entire imaginary surface and zone, parts of the surfaces
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 3 of 8
and/or zones do not apply within the Redmond, Bend or Sisters Urban Growth Boundaries.
The Redmond Airport is owned and operated by the City of Redmond, and located wholly
within the Redmond City Limits.
Imaginary surface dimensions varyfor each airport covered by DCC 18.80.020. Based on the
classification of each individual airport, only those portions (of the AS Zone) that overlay
existing County zones are relevant.
Public use airports covered by DCC 18.80.020 Include Redmond Municipal, Bend Municipal,
Sunriver and Sisters Eagle Air. Although it Is a public -use airport, due to its size and other
factors, the County treats land uses surrounding the Sisters Eagle Air Airport based on the
ORS 836.608 requirements for private -use airports. The Oregon Department of Aviation is
still studying what land use requirements will ultimately be applied to Sisters. However,
contrary to the requirements of ORS 836.608, as will all public -use airports, federal law
requires that the FAA Part 77 surfaces must be applied. The private -use airports covered
by DCC 18.80.020 Include Cline Falls Airpark and Juniper Airpark.
FINDING: The northern portion of the subject property lies beneath the Airport Safety Combining
(AS) zone, specifically the Approach Surface of the juniper Air Park. The proposed structures and
related development are not located in the area beneath the AS zone.
Based on substantial evidence in the record, the Board finds the provisions of this chapter do not
apply to this proposal.
B. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS
B. Marijuana production and marijuana processing. Marijuana production and
marijuana processing shall be subject to the following standards and criteria.
Z 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.,
Including any parking lot appurtenant thereto and any property
used by the school;
IL 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;
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 4 of 8
0
iv. A youth activity center; and
V. National monuments and state parks.
b. For purposes of DCC 18.116.330(8)(7), oil distances shall be measured
from the lot line of the affected properties listed in DCC
18.116.330(8)(7)(a) to the closest point of the buildings and land area
occupied by the marijuana producer or marijuana processor.
C. A change in use of another property to those Identified in DCC
18.116330(8)(7) shall not result In the marijuana producer or
marijuana processor being In violation of DCC 18.116.330(8)(7) If the use
Is:
I. Pending a local land use decision,
H. Licensed or registered by the State of Oregon, or
Ili. Lawfully established.
FINDING: The term youth activity center ("YAC") is not defined in DCC. Testimony in the record
indicates the property to the south of the subject property (61311 Williamsen Ranch Rd, Bend;
"Rhinestone Ranch") is used for youth oriented equestrian activities for children ages 5-18 with
approximately 50-70 kids coming to the property on a weekly basis. These activities are provided
to the general public, in association with 4-H programs, and as part of homeschooling curriculum.
Additional testimony in the record indicates the property to the east of the subject property (24432
Dodds Rd, Bend) is used for regularly held 4-H related activities. Written testimony submitted by
Michael Gottlieb, attorneyfor the property owner, indicates they, "Host4-H clubs fromjanuary-August
every year, when club meetings and practices are held on the property bi-weekly. In addition to the
residence on the property, the activities utilize an outbuilding and an outdoor facility pen."
The applicant responded that the activities do not constitute a YAC. This is based on the opinion
that the Rhinestone Ranch is a business operating on a working farm/horse ranch that offers horse -
related services to both adults and children for a fee. The applicant noted these activities constitute
agri-tourism or other commercial events and activities, uses that require land use approval. The
applicant further opines that hosting a 4H/FFA club meeting, offering home -schooling, or having
youth gatherings, does not make the residential property or ranch into YAC.
Based on substantial evidence in the record, the Board finds that the identified 4-H and youth
oriented equestrian activities on the neighboring properties rise to the level of a YAC due to their
inherent characteristic as being a place where activities center around youth on a regular basis.
Both referenced properties are within 1,000 feet of the closest point of the buildings and land area
proposed by the marijuana producer. Therefore, the proposal does not comply with the separation
distance requirement of DCC 18.116.330(B)(7)(a)(iv).
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.
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 5 of 8
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 filters) shall be rated for the required CFM; or
11. 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 Roger Whitaker (license #18638PE) dated July
31, 2018. The report demonstrates that the proposed ionization system produced by Aerisa will
comply with these criteria by providing the type of technology and materials used, volume
calculations, a case study showing effectiveness, testimonials, and design descriptions of how odor
will not be allowed to escape the grow rooms. In response to comments at the hearing and in
submitted written materials, the applicant submitted Supplemental Information for Odor Control
report dated December 24, 2018, prepared by Mr. Whitaker that provides description of ionization
technology and case studies that the technology can work in extreme odor environments which
means that ionization will be successful when applied to the proposed marijuana production facility.
The applicant also submitted Response to Appellant McCready Open Record submittal in Appeal No.
241-18-000899-A dated December 31, 2018 dated January 11, 2019, prepared by Mr. Whitaker that
disagrees with appellants assertion the ionization equipment proposed would be a health risk
based on data from the manufacturer.
The Board discussed this standard but did not reach a decision.
11. 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.
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 6 of 8
7-1a
b. Sustained noise from marijuana production Is exempt from protections
of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for
accepted farming practices Is permitted.
FINDING: The applicant submitted a detailed site -specific odor and noise report prepared by
Oregon -licensed Mechanical and acoustical engineer Roger Whitaker (license #18638PE) dated July
31, 2018, The report demonstrates that the proposed mechanical equipment will comply with this
30 dB(A) noise limit between 10:00 p.m. and 7:00 a.m. The report includes manufactures' noise
emission data and ratings, the proposed project layout, modeling, and noise level estimates at
property lines. In response to comments at the hearing and in submitted written materials, the
applicant supplemented Response to Appellant McCready Open Record submittal in Appeal No. 241-18-
000899-A dated December31, 2018 dated January 11, 2019, prepared by Mr. Whitaker that contends
that because ozone generation from the odor control system will not be an issue, the noise report
and its findings are valid and no other analysis is required at this time.
Based on substantial evidence in the record, the Board finds the proposed operation of mechanical
equipment will comply with these standards.
15. Utility Verification. A 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.
FINDING: The applicant provided a "will serve" letter from Central Electric Co -Operative (CEC), Inc.
dated February 1, 2018. The letter states the following:
Central Electric Cooperative has reviewed the provided load information (New Services to
24350124360 Dodds Rd, 2,000 amp, 480v three phase) associated with the submitted cannabis
growing operation and has determined that the combination of these services will require system
upgrades to our facilities in the area. Central Electric Cooperative is willing and able to serve this
location in accordance with the rates and policies of Central Electric Cooperative.
Based on substantial evidence in the record, the Board finds this standard is met.
V. DECISION:
Based on the findings of fact and conclusions of law set out above, by a vote of 2-0 (with
Commissioner DeBone absent) the Board hereby DENIES the applicant's proposed marijuana
production application and reverses on appeal the November 16, 2018, administrative decision (file
no. 247-18-000128-AD), which approved the application.
Board of County Commissioners Decision, Document No. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 7 of 8
The November 16, 2018, administrative approval and conditions related to the applicant's Lot of
Record Verification and Lot Consolidation (file nos. 247-18-000477-LR / 877-LL), are uncontested
and, therefore, are APPROVED.
Lot Consolidation: A new deed, reflecting the new adjusted property, shall be recorded with
the Deschutes County Clerk, and a copy of the recorded deed shall be submitted to the
Planning Division.
VII. DURATION OF APPROVAL
The applicant shall complete all conditions of approval for the lot consolidation within two (2) years
of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010
of the County Code, or this approval shall be void.
Dated this-)-b day of February, 2019.
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Philip . Inderson, 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. 2019-099
File Nos. 247-18-000128-AD / 477-LR / 877-LL / 899-A Page 8 of 8
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Chapter 18.108. URBAN UNINCORPORATED COMMUNITY ZONE - SUNRIVER
18.108.110. Business Park - BP District.
A. Uses Permitted Outright. The following uses and their accessory uses are permitted outright:
1. Residential uses'existing as of March 31, 1997.
2. Administrative, educational and other related facilities in conjunction with a use permitted outright.
3. Library.
4. Recreational path.
5. Post office.
6. Church in building or buildings not exceeding 5,000 square feet of floor area.
7. Child care facilities, nurseries, and/or preschools.
8. A building or buildings each not exceeding 8,000 square feet of floor space housing any combination
of-
Retail/rental store, office and service establishment, including but not limited to the following:
a. Automobile, motorcycle, boat, recreational vehicle, trailer or truck sales, rental, repair or
maintenance business, including tire stores and parts stores.
b. Agricultural equipment and supplies.
c. Car wash.
d. Contractor's office, including but not limited to, building, electrical, plumbing, heating and air
conditioning, painter, etc..
e. Construction equipment sales, rental and/or service.
f. Exterminator services.
g. Golf cart sales and service.
h. Lumber yard, home improvement or building materials store.
i. Housekeeping and janitorial service.
j. Dry cleaner and/or self-service laundry facility.
k. Marine/boat sales and service.
1. Restaurant, bar and cocktail lounge including entertainment.
p. Marijuana processing cannabinoid concentrates and cannabinoid products, subject to the
provisions of DCC 18.116.330.
q. Marijuana wholesaling, office only. There shall be no storage of marijuana items or products at
the same location.
9. A building or buildings each not exceeding 20,000 square feet of floor space housing any combination
o£
a. Scientific research or experimental development of materials, methods or products, including
engineering and laboratory research.
b. Light manufacturing, assembly, fabricating or packaging of products from previously prepared
materials, including but not limited to cloth, paper, leather, precious or semi-precious metals or
stones, etc.
c. Manufacture of food products, pharmaceuticals and the like, but not including the production of
fish or meat products, or the rendering of fats and oils.
d. Warehouse and distribution uses in a building or buildings each less than 10,000 square feet of
floor area.
10. Employee housing structures.
B. Conditional Uses Permitted. The following conditional uses may be permitted subject to DCC 18.128
and a conditional use permit:
1. Public buildings and public utility structures and yards, including railroad yards.
Page l of 3 - EXHIBIT A TO ORDINANCE NO. 2020-004
2. A dwelling unit for a caretaker or watchman working on a developed property.
3. Law enforcement detention facility.
4. Parking lot.
5. Radio and television broadcast facilities.
6. A building or buildings each not exceeding 8,000 square feet of floor space housing any combination
of:
a. Bowling alley.
b. Theater.
c. Veterinary clinic and/or kennel.
d. Marijuana processing including cannabinoid extracts, subject to the provisions of DCC
18.116.330.
e. Marijuana retailing, subject to the provisions of DCC 18.116.330.
7. A building or buildings each not exceeding 20,000 square feet of floor space housing any combination
of:
a. Warehouses and distribution uses in a building or buildings exceeding 10,000 square feet of floor
area.
b. Distillery and beer/ale brewing facility, including wholesale sales thereof.
c. Self/mini storage.
d. Trucking company dispatch/terminal.
e. Solid waste/garbage operator, not including solid waste disposal or other forms of solid waste
storage or transfer station.
C. Use Limits. The following limitations and standards shall apply to uses listed in DCC 18.108.110(A) or
(B):
1. A use expected to generate more than 30 truck -trailer or other heavy equipment trips per day to and
from the subject property shall not be permitted to locate on a lot adjacent to or across the street from
a lot in a residential district.
2. Storage, loading and parking areas shall be screened from residential zones.
3. No use requiring air contaminant discharge permits shall be approved by the Planning Director or
Hearings Body prior to review by the applicable state or federal permit reviewing authority, nor shall
such uses be permitted adjacent to or across the street from a residential lot.
D. Special Requirements for Large Scale Uses.
Any of the uses listed in DCC 18.108.110(A)(6) or (B)(6) may be allowed in a building or buildings each
exceeding 8,000 square feet of floor space if the Planning Director or Hearings Body finds:
1. That the intended customers for the proposed use will come from the community and surrounding
rural area, or the use will meet the needs of the people passing through the area. For the purposes of
DCC 18.108.110, the surrounding rural area shall be that area identified as all property within five
miles of the boundary of the Sunriver Urban Unincorporated Community;
2. The use will primarily employ a work force from the community and surrounding rural area; and
3. That it is not practical to locate the use in a building or buildings under 8,000 square feet of floor
space.
E. Height Regulations. No building or structure shall be hereafter erected, enlarged or structurally altered to
exceed 45 feet in height.
F. Lot Requirements. The following lot requirements shall be observed:
1. Lot Area. No requirements.
2. Lot Width. No requirements.
3. Lot Depth. Each lot shall have a minimum depth of 100 feet.
4. Front Yard. The front yard shall be a minimum of 25 feet.
5. Side Yard. No side yard required, except when adjoining a lot in an RS or RM District and then the
required side yard shall be 50 feet. No side yards are required on the side of a building adjoining a
railroad right of way.
Page 2 of 3 - EXHIBIT A TO ORDINANCE NO. 2020-004
6. Rear Yard. No rear yard required, except when adjoining a lot in an RS or RM District and then the
rear yard shall be 50 feet. No rear yard is required on the side of a building adjoining a railroad right
of way.
7. Lot Coverage. The maximum lot coverage by buildings and structures shall be 50 percent of the total
lot area.
G. Special Requirements for Employee Housing
1 The following definitions shall apply to DCC 18.108.110(A)(10):
"Employee" shall mean a person who earns a living by working in the hospitality, food and beverage,
outdoor recreation or tourism industry (i) in or within two (2) miles of the Sunriver Urban
Unincorporated Community Boundary or 60 at Mt. Bachelor Ski and Summer Resort.
"Employer" shall mean a person or entity who employs at least 50 full- or part-time Employees, as
defined above within the Sunriver Urban Unincorporated Community.
"Employee Housing Structure" shall mean a dormitory or similar dwelling structure whose sole
purpose is to serve the housing needs of Employees and the occupancy of which is restricted to
Employees For the purposes of this section "dormitory" is defined as a building primarily providing
sleeping and residentialquarters for large numbers of people and may include common areas and
kitchen facilities.
2 Employee's spouse partner and minor children shall only be allowed if compelled by either state
or federal law.
3 Employee Housing Structures must be owned and operated by an Employer.
4 Employees, as defined above who are not employed by an Employer, as defined above, shall
only be permitted to reside in an Employee Housing Structure if the Employee's employer
has a signed housing agreement with the Employer operating the Structure.
5 Parking Requirements Employee Housing Structures must provide as a minimum one vehicular
parking space for every 3 beds provided and bicycle parking for at least one space for everl two
beds provided.
a For Employee Housing Structures constructed in one or more phases, the parking
requirements maybe reduced to no fewer than one space for every six beds if the
applicant demonstrates at the time of site plan approval that a lesser parking ratio will
continue to provide adequate parking as required by DCC 18.116.030(D)(9).
(Ord. 2020-004 § 1, 2020, Ord. 2019-008 § 1, 2019; Ord. 2016-015 §9, 2016; Ord. 2015-004 §9; 2015; Ord.
2012-002 §1, 2012; Ord. 97-078 §2, 1997)
Page 3 of 3 - EXHIBIT A TO ORDINANCE NO. 2020-004
6�01 E S CMG
EXHIBIT "B" TO ORDINANCE NO. 2020-004
File No. 247- 19 ' 00n00 s T1q
1-i Ir `r, COMMUNITY DEVELOPMENT
LAND USEAPPLICATION
INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED
1. Complete the application form and provide appropriate original signatures. To ensure timely
processing of your application, all materials must be submitted on single -sided, 8.5" x 11" paper.
Do not use binders, tabs/dividers, staples or tape.
2. This application shall include one full-sized plan set (to scale) and one plan set reduced to no
larger than
11" x 17". Include a plot plan that shows all property lines and existing and proposed structures,
parking, landscaping, lighting, etc.
3. Include a copy of the current deed showing the property owners.
4. Attach correct fee.
5. All applicable standards and criteria must be addressed in writing prior to acceptance of the
application. Detailed descriptions, maps and other relevant information must be attached to
the application.
TYPE OF APPLICATION (check one): FEE: $6 129 00
Administrative Determination (AD)_ Partition (MP) _ Site Plan (SP)
Conditional Use (CU) _ Subdivision (TP) _ Variance (V) ._
Declaratory Ruling (DR) _ Temporary Use (TU) — Setback Exception (SE)
Other Text Amendment
Applicant's Name (print): Sunriver Resort Limited Partnership Phone: (541 ) 593-7832
Mailing Address: PO Box 3609 City/State/Zip: Sunriver-0
R97707
Applicant's Email Address: srunner@sunriver-resort.com
Property Owner/s Name (if different)*: Phone: ( )
Mailing Address: same as above. City/State/Zip:
1. Request: Text amendment to allow employee housing as permitted use in Sunriver UUC--Business Park zone.
2. Property Description: Township 20 s Range, 11 E Section 5 Tax Lot N/A
3. Property Zone(s): Sunriver UUC--BP zone Property Size (acres or sq. ft.): N/A
4. Lot of Record? (State reason). N/A for text amendment. All lots included in Business Park plat.
5. Property Address: Various located on Venture Lane and Enterprise Drive, Sunriver, Oregon.
(ove0
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P O. Box 6005, Bend, OR 97708-6005
J2� (541) 388-6S75 @ cdd@deschutes .org @ www deschutes org/cd
Rev 5J18
6. Present Use of Property: Properties within the business park are developed for a wide variety of commercial uses.
7. Existing Structures: Multiple commercial structures are located within the BP zone in the business park.
8. Property will be served by: Sewer,
Yes
9. Domestic Water Source: Sunriver Water, LLC
Onsite Disposal System
To the best of my knowledge, the proposal complies with all previous conditions of approval and all
other applicable local, state, and federal laws. By signing this application, 1 acknowledge that
Deschutes County planning staff may make a site visit(s) to the address(es) listed on this application
in order to evaluate the property(ies) with the Deschutes County Code criteria applicable to the land
use request(s) submitted. Please describe any special circumstances regardinga potential site visit:
Applicants Signature: Date:9/1212019
pp $
Property Owner's Signature (if different)*:
Agent's Name (if applicable): Steven Hultberg Phone:( 541 ) 585-3697
Mailing Address: P.o. Box 2007 City/State/Zip: Bend, Oregon 97709
Agent's Email Address: shultberg@radierwhite.com
*If this application is not signed by the property owner, a letter authorizing signature by the
applicant must be attached. By signing this application, the applicant understands and
agrees that Deschutes County may require a deposit for hearings officers' fees prior to the
application being deemed complete. If the application is heard by a hearings officer, the
applicant will be responsible for the actual costs of the hearings officer.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P O Box 6005, Bend, OR 97708-6005
1� (541) 388-6575 @ cdd@deschutes org @ www deschufes org/cd
TEXT AMENDMENT APPLICATION NARRATIVE
SUNRIVER BUSINESS PARK EMPLOYEE HOUSING
Applicant: Sunriver Resort Limited Partnership
PO Box 3609
Sunriver, Oregon 97707
Attn: Mr. Steven Runner
Property Address: 17601 Center Drive
Sunriver, Oregon 97707
Applicant's Attorney: Radler White Parks & Alexander LLP
PO Box 2007
Bend, Oregon 97709
Attn: Mr. Steven Hultberg
Project Description
The applicant proposes to amend Deschutes County Code ("DCC") 18.108.110 to allow employee
housing in the Business Park District within the Sunriver Unincorporated Community Zone. The
proposed amended text is attached as Exhibit A.
The Sunriver area is home to several resorts, including Sunriver Resort, Caldera Springs and Crosswater.
These resort communities, as well as the larger Sunriver community, employ upwards of 1,000 peak
summer seasonal employees, with about one-half of that number employed in the off-season. Many of
these employees come to the Sunriver area for seasonal employment and depart in the shoulder
season. Based on significant employee feedback, and prior applicant experience in securing housing for
its employees, there is a critical need in the Sunriver area for affordable employee housing. The
applicant proposes to amend DCC 18.108.110 to permit employee housing within the Sunriver Business
Park under certain conditions.
Although not the subject of the present application, the applicant owns a 3.25-acre vacant lot within the
Business Park, upon which the applicant proposes to construct employee housing units to serve
upwards of 200 employees. The draft text amendment includes provisions restricting use of units to
employees engaged in the tourism, recreation or hospitality industries. The draft text amendment also
limits the geographic area within which an employee may be employed to qualify as an eligible
employee for housing within the Business Park. The amendments are intended to serve Sunriver area
employees during the summer months, as well as Mt. Bachelor employees during the winter months.
Earlier drafts of the text amendment allowed for off-season use by non -employees. Based on feedback
from the Planning Commission, the applicant has modified the text amendment to restrict use to
employees for the entire year. To be clear, only employees working within the Sunriver UUC, within 2
miles of the Sunriver UCC (to include employees working at Caldera Springs and Crosswater) and Mt.
Bachelor employees will be permitted to occupy the employee housing structures. It should also be
noted there the applicant does not have any agreement with Mt. Bachelor to house its employees. At
the present time the applicant merely wants to provide the option should the opportunity arise to house
Mt. Bachelor employees.
PAGE 1
f00901495;2) EXHIBIT "B" TO ORDINANCE NO. 2020-004
Site Description
The Sunriver Business Park is located south and east of SW Century Drive. The Caldera Springs
destination resort is to the south, and the Burlington Northern mainline is to the east. Forest Service
lands are to the east of the BNSF mainline. Although not within the Business Park District, the Powder
Village Condominium complex is on the southern boundary of the Business Park. Most of the Sunriver
Business Park is occupied by a mix of commercial, light industrial and residential uses. Six lots within the
Sunriver Business Park are undeveloped, including the 3.25-acre parcel owned by the applicant. To be
clear, the proposed text amendment would apply throughout the entire Business Park District.
Review Criteria
Deschutes County lacks specific approval criteria in DCC Titles 18 and 22 for reviewing text amendments
to DCC Title 18. That said, under county precedence and state law, legislative and quasi-judicial text
amendments generally must be consistent with DCC Title 22, Chapter 22.12, Legislative Procedures, the
Statewide Planning Goals, applicable Oregon Administrative Rules, applicable policies of the Deschutes
County Comprehensive Plan and the county's Transportation System Plan. This application narrative
addressed each of the applicable standards.
Proposed Findings
Title 22 of the Deschutes County Code, Development Procedures Ordinance
22.12.030. Initiation of Legislative Changes.
A legislative change may be initiated by application of individuals upon payment of required fees as well
as by the Board of Commissioners or the Planning Commission.
FINDING: As a property owner in Deschutes County, the applicant may initiate a legislative change to
the DCC. As defined by the DCC "Legislative changes" "generally involve broad public policy decisions
that apply to other than an individual property owner. These include, without limitation, amendments
to the text of the comprehensive plans, zoning ordinances, or the subdivision or partition ordinance and
changes in zoning maps not directed at a small number of property owners." Because the proposed text
amendment is an amendment to the text of the county's zoning ordinance, it qualifies as a "legislative
change." Under the county's Development Procedures Ordinance, DCC Title 22, the county may elect to
process this legislative change through a quasi-judicial procedure.
Statewide Planning Goals
Goal 1, Citizen Involvement
FINDING: The text amendment will include hearings before both the Deschutes County Planning
Commission and the Deschutes County Board of Commissioners. All meetings will be publicly noticed,
and the public may participate both orally and in person. The applicant has demonstrated compliance
with Goal 1.
Goal 2, Land Use Planning
FINDING: ORS 197.610 allows local governments to initiate post acknowledgement plan amendments or
changes to land use regulations, provided that certain notice standards are met. In very general terms,
Goal 2 requires local governments to demonstrate that legislative text changes are consistent with the
jurisdiction's acknowledged comprehensive plan and related acknowledged plans (e.g., transportation
PAGE 2
f00901495;2) EXHIBIT "B" TO ORDINANCE NO. 2020-004
system plan). The applicant anticipates that the county will provide the required notices for the
proposed amendments. The findings below demonstrate that the proposed text amendment is
consistent with applicable goals and policies of the county's acknowledged planning documents. The
applicant has demonstrated compliance with Goal 2.
Goal 3, Agricultural Lands
FINDING: The text amendment relates only to the Sunriver Business Park. No agricultural lands are
affected by the proposed text amendment. Goal 3 does not apply to this application.
Goal 4, Forest Lands
FINDING: The text amendment relates only to the Sunriver Business Park. No Goal 4 forestlands are
affected by the proposed text amendment. Although Goal 4 forestland is adjacent to the Sunriver
Business Park, the underlying property itself is within the Sunriver Unincorporated Community and not
subject to Goal 4 standards. Goal 4 does not apply to this application.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces
FINDING: The text amendment relates only to the Sunriver Business Park. No Goal 5 resources are
located within the Sunriver Business Park District. Goal 5 does not apply to this application.
Goal 6, Air, Water and Land Resource Quality
FINDING: No development or land use changes are being proposed that impact air, water, or land
resource qualities. Other areas of the County's code deal with protecting air, water, and land remain in
full force and effect. To the extent that Goal 6 applies to this application, the provision of employee
housing within close proximity to employment areas will necessarily reduce reliance on the automobile
for work -related transportation needs. To the extent that Goal 6 is implicated by this application, the
applicant has demonstrated compliance with Goal 6.
Goal 7, Natural Hazards
FINDING: The County's Comprehensive Plan identifies the dominant natural hazards as wildfire, winter
storms, and flooding. The proposed text amendment merely adds employee housing as a permitted use
in the underlying zone. The underlying property will remain subject to the county's existing wildfire
plans, floodplain standards and other ordinance standards applicable to natural hazards. To the extent
that Goal 7 is implicated by this application, the applicant has demonstrated compliance with Goal 7.
Goal 8, Recreational Needs
FINDING: Employee housing allowed by the proposed text amendment is intended to partially address
the employee housing needs of the surrounding resorts and resort communities. Although not directly
on point, by providing employment and employee housing to resort and recreational employees, the
county's recreational needs are benefitted by the text amendment. The applicant has demonstrated
compliance with Goal 8.
Goal 9, Economic Development
FINDING: The Sunriver Business Park in not within a recognized urban growth boundary. Consequently,
OAR 660-009 does not apply to the present application. In general terms, Goal 9 is intended to ensure
an adequate supply of land for business and employment growth. In the greater Sunriver community,
PAGE 3
{ 0901495;z} EXHIBIT "B" TO ORDINANCE NO. 2020-004
tourism, including recreational activities, food and beverage service and related service industries, are
the primary economic activities. Given the critical shortage of affordable employee housing, the tourism
industry is finding it challenging to find and retain employees. In order to support the tourism industry,
convenient and affordable housing solutions must be found. The adoption of the present text
amendment will partially alleviate the housing pressures in the Sunriver area. The applicant has
demonstrated compliance with Goal 9.
Goal 10, Housing
FINDING: This goal pertains to urban or urbanizable lands. Consequently, Goal 10 does not apply to the
present application. That said, the proposed text amendment will provide the opportunity to provide
affordable employee housing in an area of high demand. To the extent that Goal 10 applies to this
application, the applicant had demonstrated compliance with Goal 10.
Goal 11, Public Facilities and Services
FINDING: Goal 11 generally pertains more to water and sewer services. The Sunriver Business Park is
served by Sunriver Water and Sunriver Environmental. Consequently, water and sewer services are
available to the underlying business park. Given the wide range of uses already permitted in the
Business Park, there is no indication that a limited amount of employee housing will have any greater
effect on sewer and water services than would existing uses already permitted either outright or
conditionally in the Sunriver Business Park District. The applicant had demonstrated compliance with
Goal 12.
Goal 13, Energy Conservation
FINDING: This text amendment does not affect the County's regulation of solar setbacks, siting of small-
scale windmills, land use or density, etc. The primary purpose of this text amendment is to provide
employee housing in close proximity to the employment centers in and around the greater Sunriver
community. Housing in close proximity to employment centers will necessarily reduce reliance on the
automobile and reduce commute times, both of which will reduce the use of fuel. The applicant has
demonstrated compliance with Goal 13.
Goal 14, Urbanization
FINDING: The county has complied with Goal 14 through the adoption of the Sunriver Unincorporated
Community Zone under OAR 660-022-0030. As required by this administrative rule, changes in plan
designations must comply with the post acknowledgement provisions of ORS 197.610 through 197.625.
Findings below demonstrate compliance with the applicable provisions of OAR Chapter 660, Division 22.
The applicant has demonstrated compliance with Goal 14.
Goals 15 through 19
FINDING: Goals 15 through 19 do not apply to this application.
Oregon Administrative Rules; OAR Chapter 660, Division 22
The Sunriver Business Park is located within the Sunriver Urban Unincorporated Community ("UUC"), as
defined by OAR 660-022-010(8). The county's designation of the Sunriver area as a UUC in 1997,
together with the adoption of the county's unincorporated community zoning standards (DCC 18.108),
demonstrated compliance with the Division 22 rules. Upon adoption and acknowledgement of DCC
PAGE 4
f00901495;2) EXHIBIT "B" TO ORDINANCE NO. 2020-004
18.108, the county's obligations under Division 22 are limited to complying with the Division 22 planning
and zoning standards under OAR 660-022-0030. These standards expressly permit the county to amend
the applicable UUC zoning standards under ORS 197.610 through 197.625. The UCC rules also permit the
county to authorize residential uses consistent with the UUC regulations. The following provisions apply
to the present text amendment:
OAR 660-022-0030(2) County plans and land use regulations may authorize any residential use and
density in unincorporated communities, subject to the requirements of this division.
FINDING: Employee housing is arguably a "residential use." Consequently, the county may allow
employee housing within the Sunriver Business Park provided it meets other requirements of Division
22.
OAR 660-022-0030(6) County plans and land use regulations shall ensure that new or expanded uses
authorized within unincorporated communities do not adversely affect agricultural or forestry uses.
FINDING: Employee housing would be classified as a "new or expanded use" within the Sunriver
Business Park District. The Sunriver Business Park is located west of the BNSF mainline and further west
from US Forest Service land to the east. Forestry uses on nearby Goal 4 lands are limited to recreational
uses. No forestry operations are currently active in the area, nor are any planned for the immediate
future. The addition of employee housing on with the Sunriver Business Park District will have no greater
impact on adjacent or nearby forestry uses as would any of the existing permitted or conditional uses in
the Sunriver Business Park District. The underlying zoning already permits a wide range of residential,
commercial, office, retail, entertainment and light industrial uses. There is no evidence that employee
housing will have any external impacts which would extend beyond the BNSF mainline onto US Forest
Service lands.
OAR 660-022-0030(7) County plans and land use regulations shall allow only those uses which are
consistent with the identified function, capacity and level of service of transportation facilities serving
the community, pursuant to OAR 660-012-0060(1)(a) through (c).
FINDING: The findings immediately below under the "Transportation Planning Rule Compliance" section
demonstrate consistency with this requirement.
Transportation Planning Rule Compliance; OAR 660-012-0060
When electing to adopt a post -acknowledgement plan amendment ("PAPA"), local governments are
required under OAR 660-012-0060 to determine whether the PAPA will "significantly affect" any
planned or existing transportation facilities. In very general terms, the significant affect" determination
requires a local government to analyze the "reasonable worst -case scenario" of transportation impacts
under current zoning to the "reasonable worst -case scenario" of transportation impacts based on the
new zone or new use allowed in a zone. In the present case, the county must determine whether the
addition of employee housing within the Sunriver Business Park will result in additional transportation
impacts over and above those currently anticipated based on existing uses. If employee housing will
have additional trips associated with it over and above other existing uses, then the county must
determine whether those additional trips will "significantly affect" a existing or planned transportation
facility.
PAGE EXHIBIT "B" TO ORDINANCE NO. 2020-004
{00901495;2}
Attached as Exhibit B is the applicant's transportation analysis, prepared by Transight Consulting (the
"TIA"). The TIA examined all of the uses currently permitted in the Business Park zoning district and
identified a reasonable development pattern assuming a variety of allowed uses. It should be noted that
the TIA is conservative in that it could have identified the highest trip generating use and assumed that
such use could be distributed throughout the zone. The TIA, however, assumed a "reasonable" worst
case scenario and assumed a variety of development and a variety of trip generating uses within the
zone. Based on this analysis, the TIA concludes that a reasonable development pattern could generate a
total of 373.2 Peak PM trips, or 17 Peak PM trips per acre. The TIA then measured a reasonable
development based on approximately 30 units of a combination of student housing and multi -family
housing per acre within the Sunriver Business Park. These two uses were used because there is no ITE
rate for employee housing, especially employee housing located within the resort community it is
intended to serve. The results demonstrate that employee housing will generate between 8.4 and 13.2
Peak PM trips per acre. This results in fewer trips generated on a per acre basis than what is currently
allowed within the Sunriver Business Park. In addition to this quantitative analysis, Sunriver Resort will
utilize both an employee shuttle service during the peak summer season and provide bicycles to its
employees, further reducing the trip generation potential. According to Sunriver Resort management
and human resources, very few employees come to Central Oregon with vehicles and rely on bicycle and
shuttle transportation to get to and from work. Moreover, services are available to employees within
the Sunriver Business Park, and the Sunriver town center is approximately %: mile from the Sunriver
Business Park. Based on the TIA, together with the transportation demand measures provided by the
Resort, the proposed text amendment will not "significantly affect" any transportation facility within the
meaning set forth under OAR 660-012-0060.
Deschutes County Comprehensive Plan Goals and Policies
The applicant believes that the following goals and policies are the only goals and polices applicable to
this application:
Comprehensive Plan Designation/Purpose
Business Park District. The Sunriver Business Park lies at the southern end of the community boundary
and is physically separated from the remainder of the community by Spring River Road. This plan
designation was originally created to accommodate light industrial development to support the
employment needs of the community and surrounding area. Since the inception of zoning regulations
for this area, development has been primarily commercial in nature rather than industrial. The zoning
ordinance was modified in 1997 to reflect the existing businesses and the trend for commercial
development while still allowing for industrial uses to develop.
FINDING: As the above description indicates, development within the business park has shifted from
light industrial uses to more commercial uses. The 1997 amendments which recognized existing uses
and the trend towards commercial development acknowledged this trend. The addition of employee
housing will compliment the business park by providing additional customers to the retail and
commercial uses, as well as by providing housing options in close proximity to employment centers.
Unlike Black Butte Ranch, which has areas specifically designated for employee housing (see, e.g., Policy
4.8.10, Policy 4.8.14, and Policy 4.8.15) the Sunriver UUC has no such designation. Complicating matters
is the fact that most of Sunriver is already built -out, meaning that there is little, if any, vacant land
available for employee housing in the greater Sunriver community.
PAGE EXHIBIT "B" TO ORDINANCE NO. 2020-004
f00901495;2)
Policy 4.5.1 Land use regulations shall conform to the requirements of OAR 660 Division 22 or any
successor.
FINDING: The findings above demonstrate compliance with OAR 660, Division 22.
Policy 4.5.2 County comprehensive plan policies and land use regulations shall ensure that new uses
authorized within the Sunriver Urban Unincorporated Community do not adversely affect forest uses in
the surrounding Forest Use Zones.
FINDING: The findings above demonstrate compliance with this standard.
Policy 4.5.10 Multiple -family residences and residential units in commercial buildings shall be permitted
in the commercial area for the purpose of providing housing which is adjacent to places of employment.
Single-family residences shall not be permitted in commercial areas.
FINDING: Although not directly on point because the employee housing will not be maintained within "
commercial buildings" the intent of this policy is to provide housing near places of employment. As
described in this application, there is a critical shortage of affordable housing for nearby employees. The
present text amendment will partially alleviate this critical shortage.
Policy 4.5.16 A variety of commercial uses which support the needs of the community and surrounding
rural area, and not uses solely intended to attract resort visitors, should be encouraged.
FINDING: While not directly on point, the proposed text amendment will allow employee housing to
meet the needs of employees who otherwise are forced to commute from La Pine and other areas
outside the Sunriver area. These employees will be able to utilize commercial uses both within the
Sunriver Business Park as well as the larger Sunriver community.
Policy 4.5.17 Allow small-scale, low -impact commercial uses in conformance with the requirements of
OAR Chapter 660, Division 22. Larger more intense commercial uses shall be permitted if they are
intended to serve the community, the surrounding rural area and the travel needs of people passing
through the area.
FINDING: Again, while not directly on point, this policy directs the county to permit only small-scale uses
intended to serve the community. Here, the employee housing is proposed to meet the direct needs of
employees working in the immediate vicinity of the business park.
Policy 4.5.18 Small-scale, low -impact industrial uses should be allowed in conformance with the
requirements of OAR Chapter 660, Division 22.
FINDING: Again, while not on point, this policy stresses the need to permit only small scale uses in the
business park.
Policy 4.5.29 New uses or expansion of existing uses within the Sunriver Urban Unincorporated
Community which require land use approval shall be approved only upon confirmation from the
Sunriver Utility Company that water and sewer service for such uses can be provided.
FINDING: A wide range of commercial uses are already permitted in the Sunriver Business Park and
utilize water and sewer services from the sewer and water companies. As a requirement of any site plan
review application for employee housing, the applicant will be required to obtain "will serve" letters.
PAGE 7
f00901495;21 EXHIBIT "B" TO ORDINANCE NO. 2020-004
Issues Raised during Planning Commission Hearing
Much of the discussion at the planning commission hearings centered on the adequacy of parking. The
applicant has addressed this in several ways. First, employee housing will be limited throughout the year
to employees only. This change will significantly reduce the likelihood that non -employee residents will
own vehicles and need to park. Second, the applicant has increased the parking requirements from one
parking spot for every six beds to one parking spot for every three beds. This ratio can be adjusted down
to one spot for each six beds if the applicant can demonstrate that a lower ratio still will provide
adequate parking through site plan review. Together, these two modifications largely address the
planning commission concerns regarding parking for non -employees.
Conclusion
The Sunriver area faces a critical shortage of affordable, employee housing. This shortage seriously
affects the ability of area employers to attract and retain employees, especially seasonal employees.
While the present text amendment cannot solve the critical shortage, by providing employee housing
options at the Sunriver Business Park, the applicant will be able to at least address this shortage for a
percentage of its seasonal employees and those otherwise employed in the immediate vicinity.
PAGER EXHIBIT "B" TO ORDINANCE NO. 2020-004
f00901495;2)
Exhibit B
TRANSIGHT
.° C❑NSULTING,LLC
e3 1rYn5:f7 t toy; no r .-.t(1
Date:
To:
From:
Project Reference No.:
Project Name:
September 4, 2019
Steve Hultberg
Joe Bessman, PE
1329
Sunriver Resort Employee Housing
706V PE
W. j.
The purpose of this memorandum is to highlight the potential TPR compliance issues raised with approval
of a text amendment for the Sunriver Business Park to add employee housing as an allowable use. This
would provide a means of supporting Sunriver employees within the resort property, reducing longer -
distance trips from the surrounding communities and supporting employees that are experiencing a
regional housing shortage.
PROPOSED TEXT MODIFICATION
As proposed, the Sunriver Business Park zoning would be amended to include Employee housing
structures as an outright allowable use within buildings limited to 20,000 square -feet of floor space. The
text amendment would include definition of employee housing, which is summarized as follows:
• Use of employee housing would be open to persons 18-year old or older working in the hospitality,
outdoor recreation, or tourism industry at least 25 hours per week
• Place of employment is within 20 air miles (to allow this space to include Mt. Bachelor during the
winter season)
: Would allow spouse/minor children to reside on -site
• Employee housing would be required to supply at least one parking stall for every six beds, and at
least one bicycle parking space for every two beds.
TRANSPORTATION PLANNING RULE
The requirements of the Transportation Planning Rule are contained within Oregon Administrative Rule
(OAR) 660-12 (Transportation Planning), This Division, prepared by the Department of Land Conservation
and Development, specifies the required elements for coordinated transportation and land use planning.
Within this division are the requirements for the preparation of transportation system plans, coordination
with State and regional plans and policies, and measures to prevent urbanization or sprawl onto rural
lands. Section -0060 (Plan and Land Use Regulation Amendments) provides the specific transportation
requirements for a zone change and plan amendment, ensuring that these changes remain consistent
with the goals and requirements of the adopted Transportation System Plan.
To test compliance with the Transportation Planning Rule the first step is to determine whether a
significant effect occurs. The administrative rule defines a plan or land use regulation amendment as
significantly affecting a transportation facility if it:
Changes the functional classification of an existing or planned transportation facility;
1329REP EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Pork Employee Housing Exhibit B
• Changes the standards implementing a functional classification system;
Results in types of travel that are inconsistent with the functional classification of a facility, or
degrades the performance standards identified within the adopted Transportation System Plan.
To test whether a significant effect occurs, a trip generation review was conducted of the allowed uses
within the Sunriver Business Park zoning and what could occur with the text amendment.
SUNRIVER BUSINESS PARK AREA
The Sunriver Business Park zoning designation is only located on the lands shown in Figure 1,
encompassing approximately 70 acres west of the BNSF railroad mainline and south of S Century Drive.
The overall area is built -out across nearly 70 percent of the land area, leaving approximately 21 acres
within eight separate tax lots that are fully or partially developable.
Figure 1. Sunriver Business Park Zoning Boundary.
Source: Deschutes County DIAL.
Page 2 EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Park Employee Housing Exhibit B
Existing Outright Allowed Uses
Deschutes County Code 18.108.110 outlines the allowable uses and density requirements within this
zoning designation. The current zoning allows the following uses outright:
• Library
• Post Office
• Church
• Child care facilities, nurseries, preschools
• A building or group of buildings each not exceeding 8,000 square feet with any combination of a
retail, rental store, office, and service establishment, including but not limited to the following
uses:
o Car wash
o Automotive sales, rental, and repair
o Dry cleaning
o Restaurant, bar and cocktail lounge
• A building or buildings each not exceeding 20,000 square feet of floor space housing any
combination of:
o Research space
o Light manufacturing, production, or processing
o Food product manufacturing
o Warehousing and distribution uses with less than 10,000 square -feet of floor area.
The Deschutes County Transportation System Plan is premised on weekday p,m. peak hour trips. This
metric is used in the classification of roadway facilities and in the assessment of intersection and roadway
improvement needs. Review of the trip generation potential of these uses is presented in Table 1. This
table also identifies a reasonable maximum size of the use within this area, as 22 acres of developable
land could not reasonably be built -out with automated car washes or post offices. With the remaining
developable lands generally located on the east side of the business park fartherfrom Century Drive these
lands are more likely to be developed with lower intensity uses than the vehicle -oriented convenience
commercial near the S Century Drive traffic signal.
Page EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Park Employee Housing Exhibit B
Table 1 Summary of ITF Trin Gi-neration Rates
ITE Land Use and ITE
Reasonable FAR and
Land Use
Code
Maximum Acreage
Weekday PM Peak Hour Trip Rate
3.81 PM Trips/KSF
Retail
Shopping Center
pp g
0.25 FAR
41.49 PM Trips/Acre
ITE 820
No Size Limit
27.38 Net New PM Trips/Acre
General Office
0.25 FAR
1.15 PM Trips/KSF
Office
ITE 710
No Size Limit
12.52 PM Trips/Acre
Library
0.25
8.16 PM Trips/KSF
Library
ITE 590
2.5 Acres _
88.86 PM Trips/Acre
US Post Office
0.25 FAR
11.21 PM Trips/KSF
Post Office
ITE 732
2.5 Acres
122.07 PM Trips/Acre
Day Care Center
0.25 FAR
11.12 PM Trips/KSF
Child Care Center
ITE 565
2.5 Acres
121.09 PM Trips/Acre
High -Turnover
0.25 FAR
9.77 PM Trips/KSF
Restaurant
(Sit -Down) Restaurant
5.0 Acres
106.39 PM Trips/Acre
ITE 932
60.64 Net New PM Trips/Acre
Auto Parts Sales
0.25 FAR
4.91 PM Trips/KSF
Auto Parts Sales
ITE 843
2.5 Acres
53.47 PM Trips/Acre
14.20 PM Trips/KSF
Car Wash
Automated Car Wash
0.1 FAR
61.85 PM Trips/Acre
ITE 948
Research and
Development Center
ITE 760
1.0 Acre
Est. 30.93 Net New PM Trips/Acre
Research
0.25 FAR
No Size Limit
0.49 PM Trips/KSF
5.33 PM Trips/Acre
Manufacturing
0.20 FAR
0.67 PM Trips/KSF
Manufacturing
ITE 140
No Size Limit
5.84 PM Trips/Acre
From this table, the 22 acres could be developed with the following uses that would be considered a
"reasonable development scenario" for trip generation purposes:
• 5 Acres of commercial uses (139.9 PM Trips)
• 2.5 Acres of restaurant space (151.6 PM Trips)
• 14.5 Acres of Light Industrial/Manufacturing space (84.7 PM Trips)
This overall scenario could generate 373.2 PM Trips, or 17.0 PM Trips per Acre.
Proposed Employee Housing
Table 1 also provides a comparison to a three-story multifamily residential product within this area. A
typical urban three-story apartment structure can reasonably be built with a density of 20 to 25 units per
acre. This is based on balancing the building footprint, parking area, setbacks, and landscape
requirements. With the text amendment allowing lower parking requirements, higher site densities than
this typical range could be achieved. For analysis purposes 30 units per acre was assumed, which results
in approximately 13.2 driveway trips per acre. This trip rate assumes suburban trip generation
Page 4 EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Pork Employee Housing Exhibit B
characteristics and does not account for the modal splits or user type that this housing is intended to
accommodate.
A better trip generation surrogate for this use with the limiting employee housing provisions would be
classification of the housing with ITE's Land Use 225: Off -Campus Student Apartment. The modal split and
age range within a college campus is likely much more similar to Sunriver Resort employees (particularly
seasonal employees) than typical suburban apartments. The land use description is provided below:
An off -campus student apartment is part of an apartment complex that serves college or university
students. These properties are generally located nearby and within walking distance of a college
campus. Most apartments include student -related amenities such as free high-speed Internet,
study lounges, fitness centers, sports courts, and swimming pools. Apartments included in this
land use can be furnished or unfurnished and range in size from studio apartments to apartments
with four bedrooms. Units typically have washer and dryers in each unit. Mostfacilities also include
security and 24-hour emergency maintenance.
T bl 2 S mmar of ITE Trip Generation Rates
a e u y
ITE Land Use and ITE
Reasonable FAR and
Land Use
Code
Maximum Acreage
Weekday PM Peak HourTrip:Rate
Multifamily Housing
30 Units/Acre
0.44 PM Trips/Unit
Employee
(Mid -Rise)
13.2 PM Trips/Acre
Housing
Off -Campus Student
30 Units/Acre
0.28 PM Trips/Unit
Apartment (ITE 225)
8.4 PM Trips/Acre
Table 2 shows that the siting of employee housing within Sunriver Resort could generate 8.4 to 13.2 trips
per acre. If there were no use restrictions placed on the housing limiting the use to employees the higher
range could be anticipated, and with effective management of users to limit the housing to the Sunriver
employee the lower range could reasonably be obtained. This shows the potential to reduce the trip rate
of employees by about 40 percent. Regardless of which land use classification is applied, the trip rate is
lower than other allowed uses within the Sunriver Business Park based on a reasonable development
scenario.
Additional Trip Characteristics
The trip rates shown in Table 1 and Table 2 provide an assessment of the "driveway" impacts without
regard to trip length. Residential, retail, and employment trips vary in length, with retail trips generally
shorter length (many of these would even be pass -by or diverted trips). Work trips are generally recurrent
on a daily weekday basis and often impact the critical morning and evening peak periods.
For example, trips to the Shell Station within the business park are typically short length trips that are
already on S Century Drive or arriving from areas in Sunriver. Without this gas station travelers would
have to drive farther for fuel. Conversely, a significant portion of new trips to a manufacturing facility
would likely travel from Bend or La Pine, Employee housing serving Sunriver uses would be similar to a
gas station; while there would be an impact of those trips on the system, the impact would be limited and
could help avoid the longer -distance daily travel on the highway system.
Page 5 EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Park Employee Housing Exhibit B
Effectively, this employee housing is serving as a Transportation Demand Management (TDM) measure,
This on -site supply of employee housing, coupled with provision of employee bicycles and shuttle service,
will help to reduce current travel demands on US 97 to Sunriver Resort.
As part of a Transportation Demand Management (TDM) program requirement placed on a new
destination resort within the Powell Butte area a requirement is included within the ODOT agreement for
the resort to consider employee housing, as this has been an identified need at other area destination
resorts. While there are localized trip impacts with this type of use there is also a regional benefit on the
more critical regional transportation routes.
SUMMARY AND RECOMMENDATIONS
This report summarizes the impacts of the proposed text amendment to include Employee Housing within
the Sunriver Business Park Zoning District (SUBP). Comparison of trip rates between the existing allowed
uses and the addition of employee housing would not increase the trip generation potential of the area
and so would not result in a significant effect for Transportation Planning Rule purposes. This analysis
does not include an assessment of the adequacy of the current system or a specific development proposal;
separate review would be required as part of a future land use application.
Please let me know if you have any questions on these materials at (503) 997-4473 or via email at
)oe@transi Mconsulting.cam..
Page 6 EXHIBIT "B" TO ORDINANCE NO. 2020-004
TRANSIGHT
C 0 N S U LTI N G, LLC
TTansporlabon Engineering and Planning Services P
Date: October 10, 2019
706O PE
To: Peter Russell, Deschutes County W. ` r—r ---
From: Joe Bessman, PE �'poR 01�'T A
Project Reference No.: 1329 14
Project Name: Sunriver Business Park Employee Housing I -- —
Eximi CS: 121311201q
The purpose of this memorandum is to provide a response to County comments related to the proposed
text amendment for the Sunriver Business Park Employee Housing. Questions were raised surrounding
the trip generation potential of the housing within the business park within the Proposed Employee
Housing section of the September 4, 2019 memorandum. This memorandum provides additional details
to describe the density that was assumed and corrects the "off -campus student apartment" trip rates to
base these estimates on an estimated number of bedrooms.
MULTIFAMILY HOUSING DENSITY
The first question raised by County staff related to the density of the proposed employee housing as
assumed within the traffic report:
A typical urban three-story apartment structure can reasonably be built with a density of 20 to 25
units per acre. This is based on balancing the building footprint, parking area, setbacks, and
landscape requirements. With the text amendment allowing lower parking requirements, higher
site densities than this typical range could be achieved. For analysis purposes 30 units per acre was
assumed...
This paragraph describes typical multifamily development densities and an anticipated density with the
lower required parking. As there are no specific development plans at this time this review is entirely
speculative and is intended to provide an estimate of the density of a typical apartment site and the
increased density if a lower parking ratio is allowed. For comparison, a recent hotel project in northeast
Bend is constructing 106 units within a three-story structure on 5.10 acres (20.78 units per gross acre).
The range assumed within the traffic study includes nearly a 45% higher site density.
TRIP GENERATION CLASSIFICATIONS AND RATES
The traffic report considered that the allowance of employee housing could have a range of impacts
depending on mode split and vehicle ownership. If the employee housing is catering toward employees
that are on -site and within walking or biking distance of work the trip rates could approximate those of
students within an off -campus college apartment. If the units cater toward families with typical commute
patterns and vehicle ownership the rates would be similar to studies of other typical suburban multifamily
sites as summarized within the ITE. In either case the trip impacts will be less than other allowed uses
within the current zoning.
1329RESPONSE EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Park Employee Housing
If the employee housing caters more towards younger on -site employees with a lower per -room
occupancy (i.e., small family size) and exhibits high multimodal rates the lower range of trip generation
could approximate trip rates of an Off -Campus Student Apartments (ITE 225). ITE's land use definition is
as follows:
An off -campus student apartment is part of an apartment complex that serves college or university
students. These properties are generally located nearby and within walking distance of a college
campus. Most apartments include student -related amenities such as free high-speed Internet,
study lounges, fitness centers, sports courts, and swimming pools. Apartments included in this land
use can be furnished or unfurnished and range in size from studio apartments to apartments with
four bedrooms. Units typically have washer and dryers in each unit. Most facilities also include
security and 24-hour emergency maintenance.
The ITE manual further separates this land use into sites that are adjacent to campus and those that are
over half a mile away. The manual also states that there were an average of 3.09 residents per occupied
dwelling unit in the 17 surveyed sites. All data was collected in the 2010's and so reflects current travel
characteristics.
Data for off -campus apartments is provided in terms of Residents or Bedrooms rather than by total
number of units. The number of bedrooms within this housing type will be higher than the number of
units within a typical apartment building. Comparison of the trip rates based on the number of bedrooms
versus residents was provided to identify average densities.
Off -Campus Student Apartment (Adjacent):
0 0.28 Trips/Resident
0 0.25 Trips/Bedroom
Off -Campus Student Apartment (>1/2 mile):
0 0.31 Trips/Resident
0 0.30 Trips/Bedroom
The data shows that one person per bedroom is common within this type of housing product, and each
typical housing "unit" provides 3.09 persons (presumably three -bedroom units).
Assuming one person per bedroom based on information from the ITE manual, national data obtained
online from the National Multifamily Housing Council' shows that typical apartments provide the
following unit composition as summarized in Table 1.
1 https•//www nmhc.org/research-insight/quick-facts-figures/quick-facts-apartment-stock/
EXHIBIT "B" TO ORDINANCE NO. 2020-004
Page 2
Sunriver Business Park Employee Housing
Table 1. Apartment Unit Composition and Occupancy
Number of Bedrooms
Percentage of Total
Number of Bedrooms
Avg. Number of
Students per Unit
Studio/1-Bedroom
42.4%
1
0.424
2-Bedroom
45.9%
2
0.918
3-Bedroom
11.7%
3
0.351
Total
1.693
With the average composition of apartments including a mix of one, two, and three -bedroom units Table
1 shows that on -average there are 1.693 persons per unit (or bedrooms per unit). If 30 apartment units
are provided per acre this would support approximately 51 bedrooms, as summarized in Table 2.
Table 2. Summary of ITE Trip Generation Rates
Trip Metric
Reasonable FAR
and Maximum
Weekday PM Peak Hour
Land Use
ITE Land Use and ITE Code
Acreage
Trip Rate
Multifamily Housing
Units
30 Units/Acre
0.44 PM Trips/Unit
(Mid -Rise)
13.2 PM Trips/Acre
Off -Campus Student
51 Bedrooms/
0.28 PM Trips/Bedroom
Employee
Apartment
Bedrooms
Acre
14.3 PM Trips/Acre
Housing
(Adjacent to Campus)
Off -Campus Student
51 Bedrooms/
0.30 PM Trips/Bedroom
Apartment (ITE 225)
Bedrooms
Acre
15.3 PM Trips/Acre
(Over %: Mile from Campus)
Table 2 shows that with typical multifamily uses, or with some type of student housing the trip rates will
vary between 13.2 and 15.3 weekday PM peak hour trips per acre. This range in trip rates is less than the
17.0 weekday PM peak hour trips per acre that could be generated in the business park today as
summarized in the September 4, 2019 memorandum, and much less than the trip rate of some of the
individual allowable uses. With the modal characteristics of Sunriver it is expected that either residential
rate will be lower than those cited in Table 2, and particularly during the peak summer months.
This analysis summarizes typical apartment densities based on persons per unit. The specific plans for the
Sunriver property would house approximately 200 persons within a 3.25-acre site, with a different internal
configuration than a typical apartment. This will include various types of multifamily housing products
that would be best described based on Residents rather than Bedrooms. This product provides an overall
density of 61.5 persons per acre. Applying the Off -Campus Student Apartment (Adjacent to Campus) trip
rates results in the estimates shown in Table 3.
Table 3. Summary of ITE Trip Generation Rates
Reasonable FAR
and Maximum
Weekday PM Peak Hour
Land Use
ITE Land Use and ITE Code
Trip Metric
Acreage
Trip Rate
Employee
Off -Campus Student
61.5
0.28 PM Trips/Resident
Housing
Apartment
Residents
Persons/Acre
17.2 PM Trips/Acre
(Adjacent to Campus)
Page EXHIBIT "B" TO ORDINANCE NO. 2020-004
Sunriver Business Park Employee Housing
As summarized within the September 4, 2019 memorandum, there are multiple allowable uses within the
Sunriver Business Park zoning district that range in intensity. Retail uses would generate approximately
41.5 weekday PM peak hour trips per acre, restaurants generate approximately 121 trips per acre, and
lower intensity uses such as manufacturing or office would only generate 5 to 13 PM peak hour trips per
acre. The allowance of the Employee Housing, at 17.2 weekday p.m. peak hourtrips per acre is less intense
than several of these allowable uses, and equivalent to the "reasonable development scenario" that was
outlined comprised of 35% commercial and 65% industrial uses.
SUMMARY AND RECOMMENDATIONS
This report summarizes the impacts of the proposed text amendment to include Employee Housing within
the Sunriver Business Park Zoning District (SUBP). Comparison of trip rates between the existing allowed
uses and the addition of employee housing would not increase the trip generation potential of the area
and so would not result in a significant effect for Transportation Planning Rule purposes. This analysis
does not include an assessment of the adequacy of the current system or a specific development proposal;
separate review would be required as part of a future land use application.
Please let me know if you have any questions on these materials at (503) 997-4473 or via email at
ioe@transightconsulting.com.
EXHIBIT "B" TO ORDINANCE NO. 2020-004
Page 4