2022-313-Minutes for Meeting August 08,2022 Recorded 9/1/2022of E S
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County C J2022_313
Steve Dennison, County Clerk
Commissioners' Journal 09/01/2022 10:49:54 AM
n3CES C,
III III II 111 I 111 I 11 1 IU
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
1:00 PM
MONDAY August 8, 2022
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Patti Adair, Anthony DeBone, and Phil Chang. Also present were Nick
Lelack, County Administrator; David Doyle, County Counsel; and Sharon Keith, BOCC Executive Assistant
(via Zoom conference call).
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website www.deschutes.org/meetings
CALL TO ORDER: Chair Adair called the meeting to order at 1:00 p.m.
PLEDGE OF ALLEGIANCE
ACTION ITEMS:
1. SECOND READING: Ordinance No. 2022-009, Prohibiting the
Establishment of Psilocybin Product Manufacturers and Psilocybin
Service Center Operators within Unincorporated Deschutes County;
Referral to the Electors
County Counsel Dave Doyle presented the Ordinance for second reading.
Commissioner Chang would prefer a language change to last WHEREAS
clause in the ordinance. Discussion held on the nature of the proposed
revisions.
BOCC MEETING
AUGUST 8, 2022 PAGE 1 OF 5
DEBONE: Move approval of Second reading of Ordinance No. 2022-009
with revisions as read, by title only.
ADAIR: Second
Discussion: Commissioner Chang feels the measure vote in November will
not be any different than the 2020 vote on M109, and therefore is
unnecessary. Commissioner Adair pointed out the votes of rural Deschutes
County electors shows the rural residents voted against M109.
VOTE: DEBONE: Yes
CHANG: No
ADAIR: Chair votes yes. Motion Carried
Commissioner Adair read the Ordinance into the record by title only.
DEBONE: Move adoption of Ordinance No. 2022-009
ADAIR: Second
VOTE: DEBONE: Yes
CHANG: No
ADAIR: Chair votes yes. Motion Carried
Commissioner Chang requested a copy of the measure language for review
before submitting to the County Clerk. Language review of the measure will
take place during the Wednesday BOCC meeting.
2. Measure 109 / Psilocybin Concepts / Preferred Alternative
Senior Planner Tanya Saltzman presented concepts for time, place, and
manner regulations. CDD Director Peter Gutowsky noted challenges on the
allowances for the industry and the regulations which are not in place in any
state. Planning Manager Will Groves commented on zoning. Commissioner
Chang feels zoning is not as important of an issue as scale of operations. Mr.
Gutowsky spoke on the unknowns of this industry. This discussion will be
continued during the Wednesday BOCC meeting.
BOCC MEETING
AUGUST 8, 2022 PAGE 2 OF 5
3. Preparation for Public Hearing: LBNW LLC Plan Amendment and Zone
Change
Associate Planner Tarik Rawlings presented the discussion in preparation of
a future public hearing on a proposal affecting three tax lots in consideration
of a plan amendment and zone change. A public hearing will be scheduled
for September 7, 2022.
4. Senate Bill 391 - Rural Accessory Dwelling Unit (ADU) Legislative
Amendments
Planning Manager Will Groves presented the discussion and announced that
the fire protection maps have been withdrawn for the time being by the
Oregon Department of Forestry. Due to this withdrawal it is unclear on next
steps for the rural accessory dwelling units. The Board supported the
department to proceed with planning for ADU opportunities following
legislation. Mr. Groves presented options for County draft language for
interpretation. Mr. Gutowsky noted clear and objective criteria is needed for
the standards.
5. State Legislative Representation and Lobbying Services
Deputy County Administrator Whitney Hale presented the discussion for
consideration. Interviews with three firms were held on _July 27, 2022. Ms.
Hale presented options for proceeding. Based on the ranking scores
received from the Commissioners the top firm was found to be NW Policy
Advocates. The Board supported the County Administrator's signature on a
Notice of Intent to Award.
CHANG: Move to authorize County Administrator's signature to issue a
Notice of Intent to Award to NW Policy Advocates
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
BOCC MEETING
AUGUST 8, 2022 PAGE 3 OF 5
6. State of the County 2022
Ms. Hale presented a draft presentation for review. The Bend Chamber State
of the County address is scheduled for Tuesday, August 16tn
Recommendations were made for revisions to the presentation. Ms. Hale
will present an updated draft to the Commissioners on Wednesday.
OTHER ITEMS:
• Commissioner DeBone commented on the positive experience with the
Deschutes County Fair last week. Commissioner Adair commented on the
positive outcome of the 4H animal auction and the success of the rodeo.
RECESS: At the time of 3:28 p.m., the Board went into recess and reconvened the
meeting at 3:32 p.m.
EXECUTIVE SESSION:
At the time of 3:32 p.m. the Board went into Executive Session under ORS 192.660
(2) (e) Real Property Negotiations. The Board came out of Executive Session at 4:07
p.m. for the following motions:
CHANG: Move sale of the Simpson Avenue property to KOR Community Land
Trust and Housing Works for the combined purchase price of $500,000
ADAIR: Second
VOTE: CHANG Yes
DEBONE: No
ADAIR: Chair votes yes. Motion Carried
CHANG: Move to authorize the Property Manager to execute the documents
relative to this transaction.
DEBONE: Second
BOCC MEETING
AUGUST 8, 2022 PAGE 4 OF 5
VOTE: CHANG: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
At the time of 4:08 p.m. the Board went into Executive Session under ORS 192.660
(2) (e) Real Property Negotiations. The Board came out of Executive Session at 4:26
p.m. to direct staff to proceed as directed.
ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 4:27 p.m.
DATED this 3 i Day of A tAitit S 2022 for the Deschutes County Board of Commissioners.
ATTEST:
RECORDING SECRETARY
P TTI ADAIR, CHAIR
ANTHONY DEBONE, VICE CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING
AUGUST 8, 2022 PAGE 5 OF 5
BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONER MEETING
1:00 PM, MONDAY, AUGUST 08, 2022
Barnes Sawyer Rooms - Deschutes Services Bldg - 1300 NW Wall St - Bend
(541) 388-6570 1 www.deschutes.org
AGENDA
MEETING FORMAT: The Oregon legislature passed House Bill (HB) 2560, which requires that
public meetings be accessible remotely, effective on January 1, 2022, with the exception of
executive sessions. Public bodies must provide the public an opportunity to access and attend
public meetings by phone, video, or other virtual means. Additionally, when in -person testimony,
either oral or written is allowed at the meeting, then testimony must also be allowed electronically
via, phone, video, email, or other electronic/virtual means.
Attendance/Participation options are described above. Members of the public may still view the
BOCC meetings/hearings in real time via the Public Meeting Portal at
www.deschutes.org/meetings
Citizen Input: Citizen Input is invited in order to provide the public with an opportunity to
comment on any meeting topic that is not on the current agenda. Citizen Input is provided by
submitting an email to: citizeninput@deschutes.org or by leaving a voice message at 541-385-
1734. Citizen input received by noon on Tuesday will be included in the Citizen Input meeting
record for topics that are not included on the Wednesday agenda.
Zoom Meeting Information: Staff and citizens that are presenting agenda items to the Board for
consideration or who are planning to testify in a scheduled public hearing may participate via
Zoom meeting. The Zoom meeting id and password will be included in either the public hearing
materials or through a meeting invite once your agenda item has been included on the
agenda. Upon entering the Zoom meeting, you will automatically be placed on hold and in the
waiting room. Once you are ready to present your agenda item, you will be unmuted and placed
in the spotlight for your presentation. If you are providing testimony during a hearing, you will be
placed in the waiting room until the time of testimony, staff will announce your name and unmute
your connection to be invited for testimony. Detailed instructions will be included in the public
hearing materials and will be announced at the outset of the public hearing.
For Public Hearings, the link to the Zoom meeting will be posted in the Public Hearing Notice as
well as posted on the Deschutes County website at https://www.deschutes.org/bcc/page/public-
hearing-notices.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ACTION ITEMS
1. 1:00 PM SECOND READING: Ordinance No. 2022-009, Prohibiting the Establishment of
Psilocybin Product Manufacturers and Psilocybin Service Center Operators within
Unincorporated Deschutes County; Referral to the Electors
2. 1:05 PM Measure 109 / Psilocybin Concepts / Preferred Alternative
3. 1:50 PM Preparation for Public Hearing: LBNW LLC Plan Amendment and Zone Change
4. 2:30 PM Senate Bill 391 - Rural Accessory Dwelling Unit (ADU) Legislative Amendments
5. 2:50 PM State Legislative Representation and Lobbying Services
6. 3:10 PM State of the County 2022
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.
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.
7. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations
ADJOURN
ti
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.
August 08, 2022
BOARD OF COUNTY COMMISSIONER MEETING Page 2 of 2
TES
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 8, 2022
SUBJECT: Measure 109 / Psilocybin Concepts / Preferred Alternative
BACKGROUND AND POLICY IMPLICATIONS:
This item provides an overview for Board of County Commissioners (Board) consideration
of three potential legislative time, place, and manner (TPM) concepts for the regulation of
psilocybin.
BUDGET IMPACTS:
None
ATTENDANCE:
Tanya Saltzman, AICP, Senior Planner
Will Groves, Planning Manager
Peter Gutowsky, AICP, Director
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Tanya Saltzman, AICP, Senior Planner
Will Groves, Planning Manager
Peter Gutowsky, AICP, Director
DATE: August 3, 2022
SUBJECT: Measure 109 / Psilocybin Concepts / Preferred Alternative
This memorandum provides an overview for Board of County Commissioners (Board) consideration on
August 8, 2022 of three potential legislative time, place, and manner (TPM) concepts for the regulation of
psilocybin. At the conclusion of the discussion, staff seeks direction for:
• A preferred alternative to develop TPM amendments for a first evidentiary hearing with the
Planning Commission on September 29.
I. BACKGROUND
Measure 109, which legalized psilocybin in Oregon, automatically opts cities and counties into the
psilocybin program, which is currently under development and is slated to begin statewide on January 2,
2023. However, Measure 109 offers the option for cities and counties to opt out via a ballot measure in
the next general election —in this case, November 8, 2022. On July 13, 2022, the Board conducted an
afternoon and evening hearing to consider Ordinance No. 2022-009, Referring a Measure to the Electors
to Prohibit Product Manufacturers and Psilocybin Service Center Operators within Unincorporated
Deschutes County.' The Board deliberated on the matter on July 20 and adopted a first reading of
Ordinance No. 2022-009. Second reading will occur on August 8. Upon second reading, it will be subject
to Deschutes County voters for the November 8, 2022 General Election.
During deliberation the Board expressed interest in developing TPM amendments in the event voters
reject prohibiting psilocybin manufacturing and psilocybin service centers in the unincorporated county.
Amendments could be adopted by the end of the calendar year, prior to the Oregon Health Authority
(OHA) accepting applications for licensure on January 2, 2023. On July 27, the Board directed staff to begin
the TPM process.2
1 https://www.deschutes.org/bcc/page/board-county-commissioners-meeting-63
2 https://www.deschutes.org/bcc/page/board-county-commissioners-meeting-65
Measure 109 does contain limited basic criteria pertaining to land use. For instance, psilocybin service
centers may not be located within 1,000 feet of elementary or secondary schools (500 feet if there is a
physical or geographic barrier), and manufacturing facilities may not be located outdoors. Service centers
may not be located in single family dwellings. Staff continues to monitor the rulemaking process and is
coordinating with Association of Oregon Counties (AOC) on any pertinent developments to the program.
Staff is also coordinating with other counties, including Wasco and Jackson, which are undertaking TPM
amendments on a similar schedule, while recognizing that ultimately each county will have its own set of
opportunities and constraints.
II. REGULATORY CONCEPTS
Measure 109 provides no direction as to reasonable time, place, and manner restrictions. It is difficult
for staff to estimate impacts from a transportation and land use standpoint without real world examples
of psilocybin production, processing, and service centers that the Board can consider. Ultimately, in order
for regulations to be "reasonable," such regulations must be necessary to protect public health, safety
and welfare. It may be that erring on the side of more restrictive TPM regulations is defensible because
the range and extent of potential impacts of psilocybin production, processing and service centers cannot
be defined at this early stage.
Nonetheless, staff prepared three regulatory concepts for TPM regulations ranging from restrictive
(Option 1) to less restrictive (Option 3). An overview of those concepts is provided below. They are
primarily targeted to psilocybin production and processing/manufacturing.
• While ORS 475A.570 acknowledges that the operation of a psilocybin service center may be
carried on in conjunction with a psilocybin-producing fungi crop, all three regulatory
concepts prohibit psilocybin service centers outside those existing zones that permit
medical clinics, medical centers, or retail or service businesses.' In those existing zones,
psilocybin service centers would be restricted to only daily operations.
The limited timeframe to adopt TPM amendments into Deschutes County Code (DCC), prevents staff or
the psilocybin industry from convening a work group, hiring consultants, and creating adequate findings
that address the operational characteristics and land use impacts of a psilocybin service center. Factors
warranting analysis include but are not limited to: minimum lot/parcel size, setbacks, lot coverage,
number of employees and patients, overnight lodging, food preparation and service, compatibility with
acknowledged wildlife inventories (Goal 5 - Wildlife), and trip generation analysis (Goal 12 -
Transportation Planning Rule). In the Exclusive Farm Use (EFU) zones, one also must perform a farm
impacts test.4
3 Psilocybin service centers, if they are modeled in the zoning code after medical clinics or retail businesses will have lower
transportation impacts since they do not serve a broader range of patients or customers under the age of 21. Medical clinics
are allowed in Rural Service Centers (Brothers, Hampton, Millican, Whistlestop, Wildhunt, and Alfalfa), Rural Commercial Zones
(Deschutes Junction, Deschutes River Store, Pine Forest and Rosland), Sunriver Commercial District, and Sunriver Town Center
District. A medical center is allowed in the Terrebonne Commercial District. Retail or service businesses are allowed in the
Tumalo Commercial District.
4 ORS 215.296(1) and (2). DCC 18.16.040(A)(1) and (2). LUBA has a well -established methodology for demonstrating compliance
with the farm impacts test. See Brown v. Union County, 32 Or LUBA 168 (1996). Under that methodology, a proposal can be
-2-
Applicants interested in establishing a psilocybin service center with or without overnight opportunities
on EFU property or any other rural zone where growing psilocybin production is permitted always have
the option to submit an applicant -initiated legislative amendment that justifies service centers are
consistent with state law and Deschutes County's Comprehensive Plan. As noted above, applicants
seeking to establish a psilocybin service center on EFU property will be required to perform a farm
impacts test to evaluate the impacts to each individual farm on a "farm -by farm and farm practice basis"
to determine whether the proposed use will force a significant change in accepted farming practices or
the cost of the practices.
Table 1 - Psilocybin Regulatory Concepts
Option 1 - Restrictive
Option
Description
Notes
Psilocybin Production
Allowed in:
• EFU zone
• Psilocybin-producing fungi is recognized by
Measure 109 as a farm use and is therefore
permitted outright in EFU zones.
• Psilocybin-producing fungi must be grown
indoors.
• Commercial activities in conjunction with farm
use do not apply to growing psilocybin.
Psilocybin
Processing/Manufacturing
Allowed in:
• EFU zones
• Manufacturing may be carried on in
conjunction with a psilocybin producing fungi
crop according to Measure 109.
Psilocybin Service Centers
Allowed subject to a conditional use
permit and site plan review in:
• Rural Commercial
• Rural Service Centers
Sunriver Commercial District
•feet
• Sunriver Town Center District
• Terrebonne Commercial District
• Tumalo Commercial District
• Hours of operation will be limited to daily
treatments.
• No option for larger retreat -style, overnight
operations.
• Service centers may not be located within 1,000
of elementary or secondary schools (500
feet if there is a physical or geographic barrier).
• Setbacks from other uses like religious
institutions?
approved only if it: (1) describes farm practices on surrounding lands devoted to farm use; (2) explains why the proposed
development will not force a significant change in those practices; and (3) explains why the proposed development will not
significantly increase the cost of those practices. To begin that process, LUBA has held that "[i]n applying ORS 215.296(1), it is
entirely appropriate for the applicant and county to begin by visually surveying surrounding lands to identify the farm and
forest uses to which those lands are devoted." Dierking v. Clackamas County, 38 Or LUBA 106, 120-21 (2000). Other parties are
then free to dispute the initial findings, or to add to the record additional evidence of nearby farm uses that the applicant and
county must respond to.
5 DCC 18.16.025 requires the facility uses less than 10,000 square feet for its processing area and complies with all applicable
siting standards. Exception: A facility which uses less than 2,500 square feet for its processing area is exempt from any
applicable siting standards.
-3-
Option 2 - Moderate
Option
Description
Notes
Psilocybin Production
Allowed in:
• EFU
• Forest Use Zones (F1, F2)
• Multiple Use Agriculture (MUA-10)
• Psilocybin-producing fungi is recognized by
Measure 109 as a farm use and is therefore
permitted outright in EFU zones.
• If a county chooses, it can also be recognized in
other zones where farm or forest uses are
allowed. Limited to MUA-10, F1 and F2 zones.
• Psilocybin-producing fungi must be grown
indoors.
• Commercial activities in conjunction with farm
use do not apply to growing psilocybin.
Psilocybin
Processing/ManufacturingF1
Allowed in:
• EFU
and F2
•• MUA-10
• Manufacturing may be carried on in
conjunction with a psilocybin producing fungi
crop
Psilocybin Service Centers
Allowed subject to a conditional use
permit and site plan review in:
in:
• Rural Commercial
• Rural Service Centers
• Sunriver Commercial District
• Sunriver Town Center District
Terrebonne Commercial District
• Tumalo Commercial District
• Hours of operation will be limited to daily
treatments.
• No options for permitting larger retreat -style,
overnight operations.
• Service centers may not be located within 1,000
feet of elementary or secondary schools (500
feet if there is a physical or geographic barrier.
• Setbacks from other uses like religious
institutions?
Option 3 - Least Restrictive
Option
Description
Notes
Psilocybin Production
Allowed in:
• EFU
• F1 and F2
• MUA-10
• Open Space and Conservation
• Rural Commercial
• Rural lndustrial
• Rural Residential
Rural Service Centers
• Suburban Low Density Residential
• Surface Mining Zone
• Urban Area Reserve
•
• Psilocybin-producing fungi is recognized by
Measure 109 as a farm use and is therefore
permitted outright in EFU zones.
• If a county chooses, it can also be recognized in
other zones where farm or forest uses are
allowed.
• Psilocybin-producing fungi must be grown
indoors.
• Commercial activities in conjunction with farm
use do not apply to growing psilocybin.
However, the operation of a psilocybin service
center may be carried on in conjunction with a
psilocybin-producing fungi crop on EFU land.
-4-
Allowed in:
• EFU
• F1 and F2
• MUA-10
• Open Space and Conservation
• Rural Commercial
• Rural Industrial (permitted;
requires site plan review if
located within 600 feet from a
• Manufacturing may be carried on in
Psilocybin
residential dwelling, a lot within a
conjunction with a psilocybin producing fungi
Processing/Manufacturing
platted subdivision, or a
residential zone)
crop
• Rural Residential
• Rural Service Centers
• Suburban Low Density Residential
• Surface Mining Zone
• Tumalo Industrial District (site
plan review)
• Urban Area Reserve
Allowed subject to a conditional use
• Hours of operation will be limited to daily
permit and site plan review in:
treatments.
in:
• Rural Commercial
• No options for permitting larger retreat -style,
overnight operations.
Psilocybin Service Centers
• Rural Service Centers
• Service centers may not be located within 1,000
• Sunriver Commercial District
feet of elementary or secondary schools (500
• Sunriver Town Center District
feet if there is a physical or geographic barrier.
• Terrebonne Commercial District
• Setbacks from other uses like religious
• Tumalo Commercial District
institutions?
III. TIMELINE
As noted in the July 27 Board meeting, a tentative timeline for the development and adoption of TPM
amendments is as follows:
Table 2 - Psilocybin TPM Schedule
Task
Timeline
1. Draft amendments and findings
August 9 to 24
2. 35-day DLCD Post Acknowledgement Plan Amendment Notice
August 25
3. Planning Commission Work Session
September 8
4. Planning Commission Public Hearing
September 29
5. Planning Commission Deliberation
October 13 and 27 if needed
6. Board Work Session
November 14
7. Board Hearing
November 28
8. Board Deliberation
December 5
9. Consideration of First Reading
December 14
10. Consideration of Second Reading
December 28
-5-
IV. NEXT STEPS
Staff seeks Board direction on a preferred alternative. Once it is determined, staff draft text amendments
and corresponding findings in preparation for the first evidentiary hearing with the Planning Commission
on September 29.
-6-
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: Monday, August 8, 2022
SUBJECT: Preparation for Public Hearing: LBNW LLC Plan Amendment and Zone Change
RECOMMENDED MOTION:
Hearings Officer recommends approval of file no. 247-21-000881-PA, 882-ZC pursuant to DCC
22.28.030.
BACKGROUND AND POLICY IMPLICATIONS:
Staff will provide background and prepare the Board for a Public Hearing on a future date to be
determined by the Board. The future public hearing will consider a request for a Plan
Amendment and Zone Change (file no. 247-21-000881-PA, 882-ZC) for a 19.12-acre subject
property (comprised of three tax lots) along Highway 97 between Redmond and Bend, submitted
by LBNW LLC.
BUDGET IMPACTS:
None
ATTENDANCE:
Tarik Rawlings, Associate Planner
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Tarik Rawlings, Associate Planner
DATE: July 25, 2022
SUBJECT: LBNW LLC Comprehensive Plan Amendment and Zone Change - Work Session
The Board of County Commissioners ("Board") will conduct a work session on August 8, 2022, in
preparation for a public hearing on a future date to be determined, to consider a request for a
Comprehensive Plan Amendment and Zone Change (file nos. 247-21-000881-PA, 882-ZC) for
approximately 19.12 acres along Highway 97. The subject property consists of three tax lots totaling
approximately 19.12 acres. The application includes a request for a Goal 14 Exception as an
alternative argument, if determined to be necessary for approval of the Plan Amendment/Zone
Change. Staff requests Board feedback regarding potential public hearing dates. Furthermore, staff
would like direction on whether the Board would like to set oral testimony time limits for the applicant
and/or members of the public providing testimony.
Staff has included a few public hearing date options below for the Board's consideration:
• Wednesday, August 31
• Wednesday, September 7
• Wednesday, September 21
I. BACKGROUND
The applicant, LBNW LLC, is requesting a Comprehensive Plan Amendment to re -designate the
subject properties from Agriculture to Rural Industrial and a corresponding Zone Change to rezone
the properties from Exclusive Farm Use (EFU) to Rural Industrial (RI). The applicant's reasoning for the
request is that the properties were mistakenly identified as farmland, do not contain high -value soils
or other characteristics of high -value farmland, and therefore should be re -designated and rezoned
for rural industrial use. The applicant has provided a supplementary soil study that identifies non -
high value (Class VII and VIII) soils on a majority of the subject properties. Additionally, the applicant
has provided findings within the burden of proof that provide responses to relevant state and local
requirements and policies.
II. PUBLIC COMMENTS
Staff received approximately 47 public comments from neighbors, stakeholders, local interest groups
and public agencies prior to the April 26, 2022 Hearing's Officer hearing. Most of the comments
received were in support of the project, but Staff did receive a number of detailed public comments
in opposition to the application. Comments received in opposition expressed concern related to the
following factors:
1. Potential loss of agricultural land
2. Compatibility with surrounding properties
3. Validity of the Order 1 soil survey used to demonstrate a lack of agricultural land on the
properties
4. The application's compliance with Oregon Statewide Planning Goals 3, 5, 12, and 14 and the
application's potential need for goal exceptions
5. Traffic and emergency access impacts.
Comments received in support reference the properties' lack of productive soils, the properties'
inability to be farmed outside of the poor soil quality, the regional need for industrial -zoned property
and uses in rural Deschutes County, the character of the applicants, and improvement of the subject
properties since the current owners took over.
in. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on April 26, 2022. Not including the
applicant's team, one (1) individual representing Central Oregon LandWatch provided testimony
during the public testimony portion of the hearing in opposition of the proposal.
On July 12, 2022, the Hearings Officer issued a recommendation of approval for the proposed Plan
Amendment and Zone Change, denying the oppositional points put forward during the open record
period and finding that no goal exceptions to any Oregon Statewide Planning Goals are needed. The
Hearings Officer also recommended a condition of approval, related to OAR 660-012-0060
compliance (Division 12, Transportation Planning within state administrative rules) limiting the
maximum number of vehicle trips associated with the subject properties:
The maximum development on the three subject parcels shall be limited to produce no more than
32 trips in the PM peak hour and/or 279 daily trips as determined by the Institute of Engineers Trip
Generation Manual, 11 th Edition. The County may allow development intensity beyond these
maximum number of vehicle trips only if the applicant submits to the County a traffic impact
analysis that demonstrates that the proposed intensification of use would be consistent with the
Transportation Planning Rule and the Deschutes County Code.
Staff notes this condition of approval was acknowledged and deemed sufficient by County planning
staff, Oregon Department of Transportation (ODOT), and the applicant, but was opposed by Central
Oregon LandWatch.
Page 2 of 3
IV. BOARD CONSIDERATION
As the property includes lands designated for agricultural use, Deschutes County Code 22.28.030(C)
requires the application to be heard de novo before the Board, regardless of the determination of the
Hearings Officer. The record is available for inspection at the Planning Division and at the following
link: https://www.deschutescounty.gov/cd/page/247-21-000881-pa-and-247-21-000882-zc-Ibnw-Ilc-
comprehensive-plan-amendment-and-zone-change.
V. NEXT STEPS
Based on the feedback received during the Board's Work Session, Staff will prepare for the upcoming
public hearing.
ATTACHMENT(S):
1. Area Map
Page 3 of 3
247-21-000881-PA, 882-ZC
Deschutes County GIS, Sources: Esri, USGS, NOAA
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: Monday, August 8, 2022
SUBJECT: Senate Bill 391 - Rural Accessory Dwelling Unit (ADU) Legislative Amendments
BACKGROUND AND POLICY IMPLICATIONS:
Staff will provide background and updates to the Board regarding Senate Bill (SB) 391 and the
upcoming legislative amendment process to allow rural ADUs in Deschutes County.
BUDGET IMPACTS:
None
ATTENDANCE:
Kyle Collins, Associate Planner
Will Groves, Planning Manager
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Will Groves, Planning Manager
Kyle Collins, Associate Planner
DATE: August 3, 2022
SUBJECT: Senate Bill (SB) 391 - Rural Accessory Dwelling Unit (ADU) Legislative Amendments
At Board of County Commissioners (Board) direction, staff is preparing legislative text amendments to
formally adopt provisions for rural ADUs as identified in SB 3911. This memo outlines the upcoming
amendment process, including public hearing dates and summaries of the draft amendment language.
1. BACKGROUND
Rural residential zones exist throughout Oregon. By definition, rural residential zones exist outside of
urban growth boundaries (UGBs) but are excluded from the state's resource land (farm and forest zone)
protections. With certain exceptions, those protections allow residential uses only in conjunction with a
farm or forest use. However, in rural residential zones, a dwelling can be a primary use of the land.
Currently, state law allows counties to permit an additional dwelling on a property containing a house
built prior to 1945.2 However, unlike in urban zones, rural residential zones do not have any other by -
right accessory dwelling options, making inter -generational and alternative housing options difficult to
achieve.
The Oregon Legislature adopted SB 391 into law on June 23, 2021. It authorizes a county to allow an
owner of a lot or parcel within a rural residential zone to construct one ADU subject to certain restrictions
and limitations. SB 391 does not obligate a county to allow ADUs. It also does not prohibit a county from
imposing any additional restrictions, including those relating to the construction of garages and
outbuildings that support an ADU, property size restrictions, or other land use considerations.
11. STATE REGULATIONS
SB 391 contains several provisions related to properties eligible for rural ADUs which cannot be amended
by counties. Those criteria and restrictions are highlighted in the table below:
1 https://olis.oregonlegislature.gov/liz/2021 R1 /Downloads/MeasureDocument/SB0391 /A -Engrossed
2 House Bill 3012 (2017).
Table 1 - SB 391 - Rural Accessory Dwelling Unit Standards
Eligibility
Restrictions
1. Rural Residential Exception
Areas, Minimum Lot Size,
and Dwelling
Requirements3
•
•
Applies to Rural Residential (RR10), Multiple Use Agricultural (MUA10), Urban Area
Reserve (UAR-10) and Suburban Residential (SR 2.5) zones.
Lot or parcel must be at least two (2) acres in size.
One (1) single-family dwelling must be sited on the lot or parcel.
. Existing Dwelling Nuisance
•
The existing single-family dwelling is not subject to an order declaring it a nuisance
or pending action under ORS 105.550 to 105.600.
3. ADU Sanitation
Requirements
•
The ADU must comply with all applicable laws and regulations relating to
sanitization and wastewater disposal and treatment.
4. ADU Square Footage
Requirements
•
The ADU cannot include more than 900 square feet of useable floor area.
5. ADU Distance
Requirements
•
The ADU is required to be located no farther than 100 feet from the existing single -
family dwelling.
6. ADU Water Supply
Requirements
•
If the ADU is relying on a domestic well, no portion of the lot or parcel can be within
new or existing ground water uses restricted by the Water Resource Commission.
7. ADU Water Supply Source
Option
•
A county may require that an ADU be served by the same water supply source or
water supply system as the existing single-family dwelling, provided such is allowed
by an existing water right or a use under ORS 537.545 (exempt uses).4
8. ADU / Metolius Area of
Critical State Concern /
Limitations
•
No portion of a lot or parcel can be within a designated area of critical state concern.
9. ADU Setback Requirements
•
The ADU is required to have adequate setbacks from adjacent lands zoned Exclusive
Farm Use (EFU) or Forest Use.
10. ADU / Wildland-Urban
Interface Requirements
•
The lot or parcel must comply with the rules of the State Board of Forestry under
ORS 477.015 to 477.061.
11. ADU / Outside Wildland-
Urban Interface (WUI) Area
Requirements
•
If the ADU is not subject to ORS 477.015 to 477.061 (i.e. outside of the newly -defined
wildland-urban interface), it must have defensible space and fuel break standards as
developed in consultation with local fire protection service providers.
12. ADU / Statewide Wildfire
Map Requirements
•
•
Applies to properties identified as high or extreme risk and located within a
designated WUI on the statewide wildfire risk maps established per SB 762.
ADUs are then required to comply with the Oregon residential specialty code
relating to wildfire hazard mitigation for the mapped area (R327.4).
13. ADU Adequate Access and
Evacuation for Firefighting
Requirements
•
Local regulations must ensure the ADU has adequate access for firefighting
equipment, safe evacuation and staged evacuation areas
14. ADU Occupancy
Requirements
•
ADUs cannot be allowed for vacation occupancy, as defined in ORS 90.100.
3 Acknowledged nonresource plan amendments and zone changes from Exclusive Farm Use (EFU) to RR-10 or MUA-1 0 are
ineligible for an ADU.
4 https://oregon.public.law/statutes/ors_537.545
-2-
Eligibility
Restrictions
15. ADU Land Division
Requirements
• If an eligible property with an ADU is divided, the single family dwelling and ADU
cannot be situated on a different lot or parcel.
16. ADU / Additional Units
• A second ADU is not allowed.
III. DESCHUTES COUNTY INTERPRETATIONS
As relayed to the Board during previous work sessions, numerous portions of the SB 391 language
were not defined during the legislative process and thus were left open to interpretation by local
jurisdictions that elect to allow rural ADUs. Specifically, the following items were not explicitly defined:
• "Useable Floor Area" as related to the 900-square-foot size limitation for rural ADUs.
• The specific standards of the 100-foot site distance requirements for rural ADUs.
• Adequate access for firefighting equipment, safe evacuation, and staged evacuation areas.
As summarized in Table 2, staff drafted the amendments to address these areas in the following
manner:
Table 2 - Draft Interpretations
Undefined SB 391 Standard
Draft County Interpretation
Useable Floor Area
•
Means the area of the accessory dwelling unit included within the surrounding
insulated exterior walls, exclusive of garages, carports, decks and porch covers.
•
A unit must be located no farther than 100 feet from the existing single family
100-Foot Siting Distance
dwelling, measured from a wall of the single-family dwelling to the nearest part of
the "useable floor area" of the accessory dwelling unit.
•
"Safe evacuation plan" means an identifiable route from the rural accessory dwelling
unit to the staged evacuation area.
•
"Staged evacuation area" means a public or private location that occupants of the
rural accessory dwelling unit may evacuate to reorganize.
Adequate Access and
•
Adequate access for firefighting equipment, safe evacuation and staged evacuation
Evacuation for Firefighting
areas are met by providing:
Requirements
o Written certification from the applicable fire district, on a form prepared by
Deschutes County, that access to the property meets minimum fire district
requirements to provide emergency services to the property;
o A safe evacuation plan; and
o Written authorization from the owner of the staged evacuation area that the
occupants of the rural accessory dwelling unit may evacuate to the staged
evacuation area.
-3-
Groundwater Protection
Due to vulnerable groundwater characteristics in southern Deschutes County, the Onsite Wastewater
Division recommends increasing the minimum lot or parcel size for rural ADUs to be at least five (5) acres
in size.
Future Revisions
The Board should be aware that these draft amendments and interpretations are subject to change
throughout the legislative adoption process based on public input, professional recommendations, or
direction from Commissioners. The information presented above is intended to provide the Board with
staff's current understanding of the primary interpretive matters and major considerations of developing
rural ADU legislation.
IV. SB 762 WILDFIRE STANDARDS & TIMING
As relayed to the Board in previous work sessions, certain properties in Deschutes County will be subject
to new wildfire mitigation measures as approved under SB 762.5 One of the primary pieces of SB 762 is
the creation of a comprehensive State Wildfire Risk Map to guide new wildfire regulations for
development. The final risk map was made available on June 30, 2022.6
Properties included in both a designated Wiidiand Urban interface (WUi) boundary and classified as
either high or extreme risk within the State Wildfire Risk Map will be subject to additional development
regulations. Properties meeting both of these standards will be subject to:
1) Home hardening building codes as described in section R327 of the 2021 Oregon Residential
Specialty Code; and
2) Defensible space standards as determined by the Oregon State Fire Marshal.
The standards will apply to all residential and residential accessory construction within these properties,
including the development of rural ADUs. SB 762 requires the Oregon State Fire Marshal, the Oregon
Department of Forestry (ODF), and the State Building Codes Division to adopt new wildfire mitigation
standards as described in the legislation and further developed through ongoing stakeholder
committees. At present, the State Fire Marshal has yet to develop final statewide defensible space
requirements. SB 762 requires these standards to be developed on or before December 31, 2022. The
earliest date that the R327 building code standards may become effective is October 1, 2022, and they
will become mandatory on April 1, 2023. Regardless of other qualifying characteristics, properties
included in both a designated WUi boundary and classified as either high or extreme risk within the State
Wildfire Risk Map will not be eligible for a rural ADU until April 1, 2023 at the earliest.
Based on an initial review of the State Wildfire Risk Map, there are approximately 6,635 properties
potentially eligible for a rural ADU (based on parcel size and zoning characteristics) which will be subject
to additional regulatory requirements pursuant to SB 762. There are approximately 2,951 potentially
5 SB 762 (2021)
6 https://oregonexplorer.info/tools
-4-
eligible properties which are not subject to additional regulatory requirements pursuant to SB 762. Staff
notes that not all of these properties are currently developed with a single family dwelling and thus would
not qualify for a rural ADU until establishment of a primary dwelling onsite.
V. ANTICIPATED PROPERTY ELIGBILITY
Staff is amending Deschutes County Code (DCC), Titles 18 and 19 to allow Rural ADUs consistent with SB
391 in the Multiple Use Agricultural (MUA-10), Rural Residential (RR-10), Suburban Low Density
Residential (SR 2.5), Urban Area Reserve (UAR-10), and Westside Transect Zones (WTZ). Eligibility criteria
will be incorporated in DCC Chapters 18.116, Supplementary Provisions and 19.92, Interpretations and
Exceptions. Based on initial review of the qualifying characteristics, approximately 7,798 tax lots in
Deschutes County could potentially qualify for a rural ADU. However, staff notes the following limitations
and revisions to that initial estimate:
• Based on the recommended standard of a 5-acre minimum parcel size within southern Deschutes
County, 645 properties are below 5 acres and would not qualify for a rural ADU. There are 224
properties 5 acres or larger that would qualify for a rural ADU.
• The estimate is only based on general requirements from SB 391 and does not evaluate properties
on an individual level. Specific properties may have unique lot boundaries, geographic features,
onsite wastewater limitations, or other characteristics which make the establishment of a rural
ADU more challenging or impossible.
• Property owners may encounter additional costs and challenges when constructing a rural ADU
above and beyond specific land use standards. It is likely that numerous properties will need to
incorporate significant upgrades to onsite wastewater treatment systems prior to establishment
of rural ADUs.
• By adopting SB 391 in 2021, the Oregon Legislature added a new use, ADU, to rural residential
zones. To the extent that Statewide Planning Goa! 5 (Wildlife) applies, findings will address ADUs
as a conflicting use. Certain areas in rural Deschutes County, zoned MUA-10 and RR-10 zones
contain Goal 5 resources because they are overlaid with a Wildlife Area Combining Zone. The two
zoning codes are being amended to allow ADUs and are therefore subject to an Economic, Social,
Environmental and Energy (ESEE) analysis.
• There are 1,293 potentially eligible tax lots in the Deer Migration Corridor, 455 in Deer Winter
Range, and 39 in Significant Elk Habitat. Findings will demonstrate that ADUs within the MUA-10
and RR-10 zones and within the Deer Migration Corridor, Deer Winter Range, and Significant Elk
Habitat can be allowed fully, notwithstanding the possible impacts on these inventoried
resources.
-5-
VI. LEGISLATIVE AMENDMENT SCHEDULE
Table 3 - Rural ADU Adoption Schedule
Task
Timeline'
1. Present draft amendments in preparation for formal legislative
process in Fall 2022
August 8
2. 35-day DLCD Post Acknowledgement Plan Amendment Notice
August 18
3. Planning Commission Work Session
September 8
4. Planning Commission Public Hearing
September 22
5. Planning Commission Deliberation
October 13 and 27 if needed
6. Board Work Session
November 9
7. Board Hearing
November 23
8. Board Deliberation
December 5
9. Consideration of First Reading
December 14
10. Consideration of Second Reading
December 28
11. DLCD Notice of Adoption
December 28
7 Dates are tentative.
-6-
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: Monday, August 8
SUBJECT: State Legislative Representation and Lobbying Services
BACKGROUND AND POLICY IMPLICATIONS:
In June, the County sought proposals from qualified individuals or to provide state legislative
representation and lobbying services. After scoring proposals, the Board of Commissioners
conducted interviews with three finalists on July 27. NW Policy Advocates, Pac/West and Public
Affairs Counsel provided presentations and were interviewed by the Board.
Staff will seek direction from the Board on next steps, which could include:
1. Selecting a firm to provide state legislative and lobbying services.
2. Officially rejecting all proposals.
3. Directing staff to obtain additional information from proposing firms.
BUDGET IMPACTS:
Funds for lobbying services were included in the FY2023 budget.
ATTENDANCE:
Whitney Hale, Deputy County Administrator
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BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: Monday, August 8
SUBJECT: State of the County 2022
BACKGROUND AND POLICY IMPLICATIONS:
On Tuesday, Aug. 16, the Board of Commissioners will present the 2022 State of the County as
part of the Bend Chamber's What's Brewing series. The event will be held at OSU-Cascades at
5:30 p.m.
The Board's presentation will contain updates on how the County is tackling many issues,
including growth and planning for our future, housing, homelessness, transportation and
infrastructure, solid waste, wildfire and resilience, health and safety, and more, along with
meeting everyday needs through high -quality cost-effective services.
Staff will attend the Board's meeting on Monday, Aug. 8 to review a draft of the State of the
County presentation and coordinate presentation logistics with the Board.
BUDGET IMPACTS:
None
ATTENDANCE:
Whitney Hale, Deputy County Administrator
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