2023-59-Minutes for Meeting January 25,2023 Recorded 2/27/20231300 NW Wal
BOARD OF
COMMISSIONERS
I Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County
Steve Dennison, County Clerk
Commissioners' Journal
CJ2023-59
02/27/2023 9:36:39 AM
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FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:00 AM
WEDNESDAY January 25, 2023
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Anthony DeBone, Patti Adair, and Phil Chang. Also present were Nick
Lelack, County Administrator; Kim Riley, Assistant County Counsel; and Brenda Fritsvold, BOCC Executive
Assistant.
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 DeBone called the meeting to order at 9:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
• Bret Matteis spoke as a representative of Preserve East Bend, a group recently
formed to oppose siting a landfill on Bear Creek Road. Matteis said the group's
mission is to protect the traditional rural lifestyle of east Bend and preserve livable
communities in that area.
• Craig Miller expressed concern regarding the methods and assumptions used to
develop the draft list of 12 potential landfill sites. Miller shared relevant Federal
requirements relating to airports as well as to protections of sage grouse and
viewscapes, and spoke to the need to protect dark skies.
• Ron Boozell reported that many emptied green bottles are discarded in the forest
and suggested that the Board consider inviting retailers who sell these and
BOCC MEETING
JANUARY 25, 2023 PAGE 1 OF 10
organizations who donate them to join in a conversation about how to resolve this
problem, perhaps by instituting a buy-back program for $1 per bottle.
• Dorinne Tye was concerned about low -flying aircraft near her home and the
resultant noise impacts. She was further concerned about lead particulates in the
environment and said wells near the airport should be tested.
Chair DeBone acknowledged the receipt of emails regarding the Outdoor Lighting
ordinance/preservation of dark skies and another email advising reform for parcels zoned
EFU-HR in the Millican valley area.
Commissioner Chang said the Board received important testimony about the siting of a
new landfill, which will help inform its action on item 5 later in today's agenda. He noted
that according to the Board's rules, the public is not allowed to speak to items that are on
the current meeting agenda. He objected to this rule and believed the Board should
change it.
Commissioner DeBone noted the current celebration of the Chinese Lunar New Year which
is ushering in the Year of the Rabbit.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
ADAIR: Move Board approval of Consent Agenda
ChHING: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
1. Consideration of Board Signature on letter appointing Bill Shurte for service on
the Pinewood Country Estates Special Road District
2. Open new checking account with First Interstate Bank for use by the Deschutes
County Sheriff's Office
3. Approval of the BOCC meeting minutes of January 4, 2023
ACTION ITEMS:
4. Recognition of Deputy Herrmann's 25 Years of Service with the Deschutes
County Sheriffs Office
BOCC MEETING
JANUARY 25, 2023 PAGE 2 OF 10
Captain Mike Shults introduced Deputy Herrmann and said the County has
benefitted tremendously from his service.
5. Board direction relative to the exclusion of certain candidate landfill sites
from consideration in accordance with Federal Aviation Administration
recommendations
Chad Centola, Solid Waste Director, requested authorization to convene a
special meeting of the Solid Waste Advisory Committee (SWAC) to consider
excluding certain candidate sites from consideration for a new landfill facility in
conjunction with an advisory from the Federal Aviation Administration (FAA)
which recommends that new landfills not be sited within a five -mile radius of
public access airports. If accepted, this restriction would remove three sites from
the list of 12 sites under consideration.
Tim Brownell, Incoming Solid Waste Director, added that staff met with both the
director and the engineer of the Redmond airport to discuss its safety overlay
zone as well as broader issues, including potential bird migration concerns.
Commissioner DeBone said it is cost-effective to have a landfill in the county
rather than outside of it. He desired to keep costs under control for current and
future generations.
Commissioner Adair asked that the survey responses from 2019 be made
available to the public. She did not support further impacting Highway 97 with
trucks hauling solid waste.
Commissioner Chang expressed interest in securing a land conveyance from the
Bureau of Land Management or outright purchasing some of its land to expand
the number of sites considered.
Commissioner DeBone supported empowering the SWAC to address this matter.
He noted that a consultant will assist them in their work.
ADAIR: Move to direct staff to convene a special meeting of the Solid
Waste Advisory Committee to review a FAA
Advisory circular and provide a recommendation relative to
implementation of the advisory circular
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
BOCC MEETING
JANUARY 25, 2023 PAGE 3 OF 10
Centola said staff will attempt to schedule a SWAC meeting on February 7t". He
emphasized this process is still in flux and other sites could also be added for
consideration.
Commissioner DeBone said just one site is needed, and there are 3,055 square miles
in the County. He appreciated and welcomed input on this subject.
6. Special Project Grant Status Update - Friends of the Children
Rachel Cardwell, Executive Director of Central Oregon Friends of the Children,
provided a mid -year status update on the organization's projects and programs
which aim to foster positive peer relationships and gains in literacy and math.
7. Special Project Grant Status Update - Deschutes Collaborative Forest
Project
Sally Russell, Vice Chair and Jacob Fritz, Program Coordinator, shared an update on
the Collaborative's work to keep forests healthy and accessible for the community, in
particular efforts to address concerns about wildfires and the health effects of
smoke.
8. Special Project Grant Status Update - Deschutes Basin Water Collaborative
Lisa Seales, Deschutes River Conservancy Programs Manager, and Scott Aycock,
COIC Community & Economic Development director, shared the Collaborative's
vision and goals as well as successes to increase flows in the Deschutes and Crooked
Rivers. Key issues include the distribution of water rights.
9. Resolution No. 2023-004, converting a limited duration Health Educator II
position to regular duration
Kara Cronin, Behavioral Health Program Manager, explained the request to convert
a limited duration Health Educator II position to regular duration to continue the
work of the overdose response coordinator in the Harm Reduction Program. Cronin
said this position will be paid from Measure 110 funds.
CHANG: Move Board approval of Resolution No. 2023-004, converting a limited
duration Public Health Educator II position to regular duration within the
2022-2023 Deschutes County Budget
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
BOCC MEETING
JANUARY 25, 2023 PAGE 4 OF 10
DEBONE: Chair votes yes. Motion Carried
10. Request Board approval of Document Number 2023-087, an agreement with
Bethlehem Inn for emergency shelter access and client stabilization
Kara Cronin explained the proposed agreement under which Bethlehem Inn will
reserve bed space on an ongoing basis for the provision of shelter. Bethlehem Inn
will also offer rent readiness and brief intervention case management services.
ADAIR: Move approval of Document Number 2023-087, an agreement with
Bethlehem Inn for collaborative efforts involving the Homeless Outreach
Services Team
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion carried
11. Consideration of Chair Signature of Document No. 2023-079, amending an
agreement with Oregon Health Authority for tobacco prevention and
cessation efforts, and a resolution formalizing how these grant funds will
be expended
Jessica Jacks, Public Health Program Manager, described the amendment to the
agreement with OHA which increases funding for these activities in the net
amount of $372,856.45. The funding derives from revenue generated from the
voter -approved tax on cigarettes and inhalant delivery systems.
CHANG:
ADAI R:
VOTE:
ADAIR:
CHANG:
VOTE:
Move approval of Chair signature of Document No. 2023-079,
amending an agreement with Oregon Health Authority for
tobacco cessation efforts
Second
ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion carried
Move approval of Resolution No. 2023-006, increasing
appropriations within the Health Services Fund and the 2022-
23 Deschutes County budget
Second
ADAIR: Yes
CHANG: Yes
BOCC MEETING
JANUARY 25, 2023 PAGE 5 OF 10
DEBONE: Chair votes yes. Motion carried
12. Planning Division Work Plan Update / Long Range Planning / FY 2022-2023
Will Groves, Planning Manager, sought additional direction from the Board with
respect to prioritizing long-range planning projects which vary in complexity and
anticipated staff effort. Groves noted that two weeks ago, the Board identified the
Mule Deer Winter Range Inventory update and In -Conduit Hydroelectric code update
as top priorities.
Commissioner Adair said the Bend Airport Master Plan should be addressed. Groves
explained that any changes to the Deschutes County Code with respect to the
airport would need to be initiated by the City of Bend. He noted preliminary
conversations held with the City on this subject.
Regarding the In -Conduit Hydroelectric code update work, Commissioner Chang
emphasized that there are no plans in place to apply for such a facility in the next
year or two. He advised staff to take this into consideration as it prioritizes this work
ahead of or behind other items.
Following discussion, Groves summarized the direction of the Commissioners to
prioritize work on a Conventional Housing Combining Zone, the temporary use of
recreational vehicles, and outdoor mass gatherings.
Commissioner Adair relayed concerns about the cost to appeal a decision of the
Hearings Officer. Peter Gutowsky, Director of Community Development, offered to
conduct a comparative analysis on these fees to facilitate an informed decision by
the Board with respect to any possible change to the fee structure. Commissioner
DeBone suggested this research be shared with individual Commissioners over the
next month.
At 11:58 am, Chair DeBone announced a break for lunch.
The meeting was reconvened at 1:00 pm.
13. Public Hearing: A Commercial Activity in Conjunction with Farm Use
(Meadery) in the Exclusive Farm Use Zone
Nathaniel Miller, Associate Planner, outlined the procedures for the hearing to
consider the appeal of a Hearings Officer decision to deny an application for
commercial activity in conjunction with farm use. Miller explained the request
pertains to a proposed meadery on Highway 20 outside of Sisters.
The public hearing was opened at 1:10 pm.
BOCC MEETING
JANUARY 25, 2023 PAGE 6 OF 10
Liz Fancher, representing the applicant, explained that State law allows all three
types of identified wineries in the Exclusive Farm Use (EFU) zone —some of these are
allowed outright, and others as conditional uses. The applicant seeks to establish,
via conditional use, a honey winery (meadery) with associated uses including an
indoor tasting room, outdoor tasting area, food cart, winery -related events, and
other commercial activities related to the production, sale, marketing and
distribution of wine, farm products, and related incidental items.
Fancher explained that State law prohibits the gross income of the winery from any
activity other than the production or sale of wine from exceeding 25 percent of the
gross income from the on -site retail sale of wine produced in conjunction with the
winery. This means that the gross income from activity other than production or sale
of mead cannot be from other activities as described. Fancher said this restriction
ensures that the other commercial activities will be incidental to and in conjunction
with the farm use, and shared proposed conditions of approval to ensure that the
property will meet the "incidental and subordinate" test, summarized as follows:
• 30 acres of the winery property must be maintained as bee pasture;
• 100% of honey produced be used to make wine or sold as a farm product;
• Agritourism and other commercial events are reduced to ten days per year;
• Agritourism and special event attendance be capped at 250 persons for five
events and 150 for five events (ten events total);
• Weddings are not allowed;
• Limits on the number and operation of food carts;
• No agritourism or special event may occur until after the winery has achieved
gross income of $40,000 from the onsite sale of wine produced in conjunction
with the winery;
• The winery must comply with ORS 215.456 (2) which places a 25% limit on gross
winery income from sales other than the on -site retail sale of wine produced in
conjunction with the winery;
• All honey be produced in Oregon and 90% of the honey used to make mead
must come from a subset of Oregon counties;
• Annual reporting of compliance with the 25% gross sales rule and honey source
condition. A violation of either condition in two consecutive years would render
the approval void.
John Herman, the applicant, explained how his farm supports biodiversity and
pollinators and said the property's grazable, regenerative bee pastures also
contribute to soil health. Herman said with the additional conditions, his
application now has the support of Central Oregon LandWatch.
Commissioner Chang noted his concern about people who may want to do a
little bit of farming and a lot of non -farming activity.
BOCC MEETING
JANUARY 25, 2023 PAGE 7 OF 10
• Rory Isbell, Central Oregon LandWatch, confirmed that the organization
has endorsed the changed application with the new list of proposed
conditions, so long as these are incorporated into any approval decision
by the Board.
• jack Farley expressed his support for the application and said it deserves
the full support of the Commission.
During the time allotted for rebuttal by the applicant, Fancher emphasized that a
crop processing use is not considered a commercial activity.
The public hearing was closed at 2:16 pm.
Chair DeBone noted the consensus of the Board to schedule deliberations for a
date and time to be determined.
OTHER ITEMS:
• Commissioner DeBone referred to a letter from the Laidlaw Water District
regarding the Tumalo Wastewater Feasibility Study. The Board was in
consensus to allow staff to engage with the water district and offer technical
assistance (analysis and planning).
• Commissioner Change participated in the Point in Time count yesterday.
• Commissioner Chang announced the "Season of Non -Violence" event
tomorrow.
• Commissioner DeBone reported he will participate in a meeting tomorrow in
Salem regarding an appeal of the Department of Land Conservation and
Development to the Land Conservation and Development Commission.
• Commissioner Adair reported a cease and desist order issued to persons
residing on Hurtley Ranch Road relating to criminal activity on County -owned
property.
• Commissioner Adair reported on the upcoming Point in Time count in
Sisters.
• Commissioner Adair shared that a resident was nearly struck by a wayward
bullet in the China Hat area. She said many gunfights are reported in this
area and hoped this could be addressed.
• County Administrator Nick Lelack relayed an opportunity to participate in the
KOR Workforce Housing Program in partnership with the Bend Chamber at a
cost of up to $2,500 plus closing costs for any Deschutes County employee
selected for the program. The majority of the Board concurred to participate
at this amount.
• Commissioner DeBone cautioned against contributing to factors that would
hinder people from free market opportunities to buy a house.
BOCC MEETING
JANUARY 25, 2023 PAGE 8 OF 10
• Deputy County Administrator Erik Kropp submitted proposed appointments
to the Noxious Weed Advisory Committee. The Board was in concurrence to
have these submitted for its formal approval.
• Deputy County Administrator Whitney Hale and Facilities Director Lee
Randall submitted a draft letter seeking support of a $25 million investment
from the State to support the County's courthouse expansion project. The
Board directed one edit to say that the expansion will add "approximately
60,000 square feet" to the current facility.
ADAIR: Move approval of Board signature of a letter seeking funding
from the State in the amount of $25 million for the courthouse
expansion project
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion carried
Chair DeBone announced a break at 2:37 pm.
The meeting was reconvened at 2:43 pm.
EXECUTIVE SESSIONS
At 2:43 p.m., the Board went into Executive Session under ORS 192.660 (2) (d) Labor
Negotiations. The Board moved out of executive session at 3:33 p.m. to direct staff to
proceed as discussed.
At 3:34 p.m., the Board went into Executive Session under ORS 192.660 (2) (h) Litigation.
The Board moved out of executive session at 3:39 p.m. to direct staff to proceed as
discussed.
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 3:39 p.m.
DATED this CD -ay of / '' 2023 for the Deschutes County Board of Commissioners.
7V.)
ANTHONY DEBONE, CHAIR
BOCC MEETING
JANUARY 25, 2023 PAGE 9 OF 10
ATTEST:
RECORDING SECRETARY
PATTI ADAIR, VICE CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING
JANUARY 25, 2023 PAGE 10 OF 10
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Lc � (:1/j & 3190
Subject:
Name
Address / f"
( Wit' `�� 76f
Phone #s 6/0 -- 23C
E-mail address 7 ` e .c, h/'
I(
In Favor
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
Date:
�..G
XOpposed
g No
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
?a BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: c1_ 11 0) 1 cm
Name Cra. ; e,s ,1i e ‚-
Address P u 7 6 (6 s 7 1 0 .71,-: l
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Date:
Phone #s
E-mail address
In Favor
a� l(e-r-
Neutral/Undecided
Submitting written documents as part of testimony? es
If so, please give a copy to the Recording Secretary for the record.
Opposed
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
1-24-2023
To Solid Waste Advisory Committee:
To Deschutes County Commissioners:
Thank you for providing this opportunity to comment on the planned location options for a new
Deschutes County landfill. As a former SWAC member, I understand the necessity for planning a new
facility. I also understand both the difficulty and the importance of choosing the best possible location.
I have lived in Bend since 1981. I served as an Emergency Physician at St. Charles Medical Center from
1981-1999. I subsequently contracted as a Geographic Information Systems (GIS) specialist for the
Oregon Natural Desert Association where I work now. 1 have a deep appreciation for the need to protect
human lives as well as protecting the environment on which both humans and wildlife depend. I provide
these comments on my own, and are not on behalf of ONDA, which will offer its own set of comments.
I have grave concerns regarding the methods and assumptions that have been used to determine
approximately 12 potential sites. I believe certain criteria were too heavy-handed and other criteria
should have been included that were omitted. I will touch on some of these criteria in the following
paragraphs.
Insufficient information: I believe the County was correct to eliminate the non -viable areas first.
However, as illustrated by the FAA 5-mile avoidance recommendation, it is clear that the non -viability
criteria were not adequately identified. There appears to have been a significant lack of knowledge
regarding federal land management as well state wildlife management. Although most of the potential
sites are privately owned, .d.Y are surrounded by Bureau of Ld..I..IU Vn dl idge ..... C_I.it
(UM) land. As such ,
road construction, visual changes, traffic and wildlife impacts may preclude the types of activities that
might be planned on the private parcel. One striking example is the Cougar Wells site (#12) which is a
private inholding inside a Wilderness Study Area (WSA). There is no access to this site except for a
primitive motorized trail. There is not a constructed road that accesses the site, and since the parcel is
surrounded by WSA, no possibility exists for a road to be constructed to the site. Trash cannot be hauled
to the site without a constructed road. In short, the Cougar Wells option is fatally flawed. WSAs should
have been included in the exclusion criteria.
Other exclusion criteria that should have been included from the start includes 4-mile buffers around
occupied/pending sage -grouse leks and Visual Resource Management (VRM) categories 1 and 2. Federal
Management is guided by an overarching management plan that has undergone a rigorous
environmental impact statement (EIS). A federal agency is subject to litigation if it fails to follow its own
regulations set out in the management plan. The Greater Sage -Grouse Approved Resource Management
Plan Amendment (ARMPA) was devised to help prevent the extinction of this keystone species. Its intent
is to avoid triggering more stringent protections under the Endangered Species Act (ESA). Unfortunately
ARMPA has not stopped the continuing decline of Greater Sage -Grouse throughout the west. It is
therefore imperative that our federal agencies carefully follow the regulations it has set out. While the
County correctly designated Priority Habitat Management Area for exclusion, it failed to do so for 4-mile
sage -grouse lek buffers as required under ARMPA. Road construction and other disturbance activity is
not allowed within 4 miles of a pending/occupied sage -grouse lek. Three of the parcel options lie with a11
the buffer, precluding road construction, site development, and other disturbance activities.
Another federal requirement is that various viewscapes receive a range of protections, referred to as
Visual Resource Management (VRM). A VRM 1 or 2 classification prohibits new disturbances (such as
developments, roads, night lights, increased noise or traffic). The Golden Valley site is within a VRM 2
zone and therefore ineligible for landfill placement.
Other exclusion criteria should have included situations where multiple wildlife winter range and habitat
overlap. ODFW-designated essential pronghorn habitat was omitted entirely. Every option from Horse
Ridge east possesses multiple overlapping wildlife ranges.
Another important factor not considered is the importance of dark sky to the Pine Mountain
Observatory. It has been a Central Oregon icon since it was established in 1967. It has made many
important cosmic discoveries. Dark skies are becoming increasingly rare throughout North America. The
increased presence of night lights in the Millican Valley will seriously impact the ability of the
observatory to function. Millican Valley and Golden Valley site options should be excluded to preserve
the dark skies and the lowest possible air particulates.
Regarding exclusion criteria, it is unclear to me what extent federal/county land exchange has been
considered. There are easily accessible areas (along Hwy 97 and along Powell Butte Hwy) that are
managed by BLM, and could potentially be amenable to exchange while at the same time avoiding
"nimby" and wildlife conflicts. Furthermore, to what extent has a tri-county approach been considered?
There may be certain areas just outside the Deschutes County boundary that could serve the entire
Central Oregon region. Considering that this will be at least a hundred year commitment, it is imperative
that the whole range of possible solutions be carefully considered, using the most comprehensive range
of viable options possible. I believe the current process falls short of that.
3I11GC1 ely,
Craig Miller
PO Box 6376
Bend, Oregon
gismiller@gmail.com
Subject:
Name
Address
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
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On II geM
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Phone #s
E-mail address
I Favor
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Submitting written documbntsas part of testimony? Yes No
If so, please give a copy to the Recording Secretary for the record.
Neutral/Undecided
IAA, boifl6 die Iscirdec
(9 Ai vie515 Youweow comitv
Opposed
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
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Angie Powers
From: Andrew Aasen <dr:andrewaasen@gmail.com>
Sent: Thursday, January 19, 2023 2:49 PM
To: citizeninput
Subject: Zoning Reform
Some people who received this message don't often get email `from dr andre�vaasen@gmail.com. Learn why this'is important .
[EXTERNAL EMAIL]
Hello,
I wanted to reach out and bring a couple concerns to the board's attention.
EFU-HR no longer fits the purpose of the zoning action. This area is mostly made of the Millican valley. In the
valley George Millican and a few other families with the state's support developed a plan to bring community
and affordable housing together. In the early 1900s the state convinced hundreds of families to move to the.
valley for affordable farming practices, it didn't take long for everyone to realize this area was not suitable for
farming. With extreme temperatures and very poor soil quality farms failed.
From that point forward into the 1960/70s these large lots were legally divided into 5-20 acre parcels for the
most part. With a few larger lots. The small lot sizes and access to this area was clearly indented to become
housing. With the legal creation of these lots the county has failed to recognize these lots as they have normally
done. Lots created in the same time frame in other parts of the county have Legal lot of records on file - doing
Vviui the same legal creation technique. It is unjust and unethical iu require iililttofl valley- residents to pay for
this recognition as it is a state and county statute to recognize these properties. "as stated on the planning
webpage and in the DCC records.
Today the valley zoned almost entirely EFU-HR is composed of several hundred small legal lots and only a
handful of the lots in this area are 320 acres or larger. Within the valley only two families have major cattle
practices, the ROTH family (part time) and the Probert Family. These ranches require a major amount of
supplemental feed and thousands of BLM acres to even generate a minimal income. It is well documented by
OSU and other agencies that the soil type in this area is not suitable for agriculture, and can't support cattle
sustainably without intervention. The 320 acre lot requirement is a drop in the bucket and can't support even a
small number of cattle.
The area is suitable for low income sustainable housing though. Within the few hundred small legal lots in the
area there are 50-70 families living in unpermitted dwellings, as well as a handful of families living on small
lots with conditional use permits to allow legal non -farm dwellings (As they should be + many more). This
zoning and stance creates an unsafe and bias legal practice in the area. This also creates a major, loss of income
to both the county and building department that could otherwise be captured as the intended code sets as a key
purpose, with legal and safe development.
With the key factor of debate being the intent of purpose to promote public health, safety and general welfare
while carrying out the ability to collect fees, and monetary gains for the county. This code and zoning clearly
does not fit with the current trends out outlined in the purpose- and cannot be justified to protect Agricultural
land as defined in the ordnance as "class 1-5 soils, and other lands in different soil classes by use, taking into
consideration fertility, suitability for grazing and climate conditions, with existing and future water availability
and land use patterns with technological and energy inputs required."
1
This area has demonstrated for over a hundred years that it is not suitable for agriculture, and as climate change
persists cannot sustain simple grazing at this time. As stated by experts in hundreds of denied CU use
applications the soil is too poor, the lots are too small, and the ability to graze sustainable is out of reach.
This area needs to be rezoned with the economy and safety/ general welfare of those currently using the land in
mind. It is well known the board does not like the idea of development in the area and this is a clear bias.
Commissioners have visited the Roth property and at the time were in high favor of decommissioning one of the
few farm practices in the area for unintended use as defined- and making a landfill in the area instead.
Key takeaway. With a purpose to protect agriculture you need the area to be a suitable agriculture area. With
only two farms you cannot say without bias that this zoning is correct. This does not fit the trend in the area or
the welfare of its people. This label also does not fit the clearly intended purpose of habitation with the Legal
creation of hundreds of small lots ( not currently recognized/ and presents a major legal issue). Most of which
have access to utilities, including cable/phone.
Giving these lots the legal Lot of Record as defined in code and by the legal creation, as well as rezoning- (at
least the smaller lots) to meet the current trends and use in the area- will ultimately better suit the county and
population. Allowing legal construction on these parcels will extremely benefit those who are living in
unpermitted structures, as well as increase revenue. I don't see how this would create an issue and definitely fits
the needs for the people in a more suitable manor.
Please rezone these small lots, and give them the legal recognition they are entitled to per state and county law.
This area deserves as much respect as others created at the time like Sunriver and La Pine. Give the people hope
and show them that commissioners see the trends while caring, and don't use power only to benefit themselves.
(DUMP SITE).
I would like to continue this conversation with you all.
Regards,
Dr, Andrew Aasen
541-977-7096
2
Angie Powers
From: Louis Capozzi <Icapozzi@icloud.com>
Sent: Sunday, January 22, 2023 12:28 PM
To: citizeninput
Subject: Dark Skies
[Some people who received this message don't often get email from Icapozzi@icloud.com. Learn why this is important
at https://aka.ms/LearnAboutSenderldentification `]
[EXTERNAL EMAIL]
I understand you're considering the County's "Dark Skies" ordinance and I want to urge you to strengthen it and to
invest in enforcement and educational campaigns around dark skies best practices. Simple practices, like downward
shields, can make a big difference in the quality of our night sky: And when the skies get too light, wildlife is harmed,
and we humans can't enjoy the dazzling star show in the sky at night, With the growth we can continue to expect here
in Central Oregon, preserving the natural feeling of our communities should be a high priority for the County..
Thank you for your consideration.
Louis Capozzi
Bend, Oregon
1
Angie Powers
From: David Buhaly <srvrbvrdave@icloud.com>
Sent Sunday, January 22, 2023 425 PM
To: citizeninput
Subject: Dark Skies in Deschutes County
[Some people who received this message don't often get email from srvrbvrdave@icloud.com. Learn why this is
important at https //aka,ms/LearnAboutSenderldentification ]
[EXTERNAL EMAIL]
Dear Commissioners,
I am aware of the review of the. County Outdoor Lighting Ordinance discussion that is on the agenda for. Monday's
meeting and I would like to share my position on this issue.
I am a resident of Sunriver and serve on the Board of the Sunriver Nature Center and Observatory. Sunriver is a
designated "Dark. Skies Community and has clear and specific regulations that control the placement and design of
outdoor lighting so as to maintain as close to a natural night-time environment as possible while maintaining community
safety. The Sunriver Owners Association actively monitors compliance with these standards. As a full-time resident,
these regulations are not onerous and contribute to our high quality of life in Sunriver:
I addition, as you know, the Sunriver Nature Center and Obser�iatory, maintains the nation's largest privately owned
In -a 1.1 \.1141V1 �"UJ �V to"'Center Observatory nation's Ib\.J 4'�IIVU4\.Iy l/
observatory. We have achieved nationwide notoriety for the quality of the astronomical viewing from our facilities,
which is a direct result of the community's commitment to maintaining dark skies. The Observatory is one of the jewels
of Sunriver and Deschutes County as we serve many thousands of visitors and residents annually. Also, we educate the
public on the benefit of dark skies to migrating birds and other wildlife which are impacted significantly when human
caused light pollution is in existence.
Please take action to improve and strengthen outdoor lighting standards needed to maintain the natural environment in
our county, including dark skies.
Sincerely,
David Buhaly
Immediate Past President, Board of Directors Sunriver Nature. Center and Observatory
Angie Powers
From: Robin Galloway <rgalgarden@gmail.com>
Sent Monday, January 23, 2023 1124 AM
To: citizeninput
Cc: Marilynne Keyser; Cindy Murray; Sue Combs, bill.kowalik@darksky.org
Subject: dark sky feedback
Some people who received this message don
[EXTERNAL EMAIL]
often get email from rgalgarden@gmail.com. Learn why this is important
To: Commissioners DeBone, Adair and Chang
From Robin Galloway, President
Friends and Neighbors of the. Deschutes Canyon Area (FANs)
Re: Light Ordinances
The Friends and Neighbors of the Deschutes Canyon Area has monthly
educational programs called the Lens on Learning. At the January 21,
2023 program, our speaker was Dr. William Kowalik, who presented data.
and impact of light pollution in central Oregon. He shared a quote by
Yerlyn Ktinkenborg which states, "Of all the pollution we face, light
pollution is perhaps the most easily remedied".
As the topic of a Dark Sky Initiative is explored in Deschutes County,
FANs wants to go on record that we know this is a very real threat to our
area, and we want to see lights controlled.
Thank you for seriously evaluating this important topic.
Robin Galloway
1
Angie Powers
From: Wendy Edde <wendy_edde@yahoo.com>
Sent: Monday, January 23, 2023 12:03 PM
To: citizeninput
Subject Dark Skies Input
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[EXTERNAL EMAIL
Hello Deschutes County Commissioners,
I am a Deschutes County resident and support efforts to protect our dark skies. Not only does it help protect
wildlife habitat needs but is also smart policy from an economic sense as tourism plays such an important role
to our economy here: I have noticed that over the nearly two decades that we have lived here a decline in our
ability to see the night skies as well as we used to be able; obviously the influx of people and development has
played into that: There also seems to be less knowledge about the benefits of dark skies and the know-how to
protect them: I would like to see support via an education and incentive program so our new and old citizens
are reminded not only the benefits of dark skies but also what measures and fixtures we can use (with incentives
to make them more economically viable) to keep the benefits of our dark skies. I would also like to see dark
sky fixtures standardized on new and redevelopments if not already required.
I will never forget one time in college I was driving a group of students up to the mountains for a school
outing. It a <> aas dark and we had gotten away from he city when one of my college dorm mates screamed out ,
"Oh my gawd! It's so beautiful; I have never seen stars before!". Yes it was the `80s. The young man was from
Philadelphia. I nearly drove off the road.
As we grow let's do so intelligently and with forethought to protect those aspects of Deschutes County that
make it so special: Our ability to see the night skies clearly and our ability to benefit from the blessings of
abundant biodiversity are among those that drew us here and are worth protecting. I am sure it brings tourism
dollars as well. Let's not lose site that without our diligence and continuing` education they can be lost if taken
for granted. Our family supports your taking steps to protect dark skies.
Thank you for your time, efforts and service to our community.
—Gwendolyn Edde
Sent from Yahoo Mail for iPhone
Angie Powers
From: David Dedrick <ddedrick@outlook.com>
Sent: Monday, January 23, 2023 12:09 PM
To: citizeninput
Subject: In support of Dark Skies for human health
Some people who received this
[EXTERNAL EMAIL]
essage don't oft
Dear Deschutes County Commissioners,
get email from ddedrick 2 outlook corn. Learn why this is important - s
Thank you very much for taking up the issue of the county lighting ordinance. l would support a thorough, detailed
review of that ordinance. That review should include the many stakeholders that can be affected by light pollution.
In support of those stakeholders I am submitting my comments on behalf of the people that live in our county. A great
deal of attention has been focused on the effects of light pollution and; artificial light at night (ALAN) on star gazing and
animal populations especially focusing on birds and insects. But what about humans? Are we too affected by
ALAN? When the county lighting ordinance was last review in 1996 there was essentially no human data on the affects
of ALAN. Since then, a number of high quality publications have highlighted that this indeed is a serious health issue.
Our internal time clock, the circadian rhythm and melatonin release, is mostly driven by light exposure. New data has
determined that even small amounts of ALAN can change our melatonin expression, alter our physiology and sleep
cycles. This amount of light is not very much and one could easily be subject to ALAN merely by light trespass (lighting
from someone else's property spilling onto your property).
In addition to new high quality human data showing the effects of ALAN we must also recognize that the technology
behind lighting has shifted dramatically with the introduction of efficient LED bulbs. These are wonderful at conserving
energy but the majority of them produce light at an intensity and spectrum that is not beneficial for our circadian
rhythm and melatonin curve.
With new human data to digest and new lighting technologies to review I would request that this issue be taken up fully
by the county commissioners on behalf of the people who live, work and play in our wonderful Deschutes County.
Sincerely,
David L. Dedrick, MD
Board Certified Sleep Specialist by the American Board of Internal Medicine
Medical Director for the St. Charles Sleep Centers 2007 - 2020
Sent from Mail for Windows
1
vTES
0
{
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25th, 2023
SUBJECT: Open new checking account with First Interstate Bank for use by the Deschutes
County Sheriff's Office.
RECOMMENDED MOTION:
Move approval for Board of County Commissioners authorization to open a new business
checking bank account with First Interstate Bank (FIB).
BACKGROUND AND POLICY IMPLICATIONS:
The Deschutes County Code requires authorization from the Board of County
Commissioners to open a new banking account registered for use/ownership under
Deschutes County. Deschutes County maintains multiple banking accounts with FIB as the
contracted banking service provider.
Currently, the Deschutes County Sheriff's office maintains physical petty cash for business
operating expenses of the officers within the unit. The new bank account with FIB would
allow for these officers to spend funds using a debit -type payment card. This change will
increase internal controls over handling of county assets.
BUDGET IMPACTS:
None.
ATTENDANCE:
Jana Cain, Accounting Manager - Finance
Joe Brundage, Business Manager - Sheriff's Office
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25, 2023
SUBJECT: Board direction relative to exclusion of certain candidate landfill sites from
consideration in accordance with Federal Aviation Administration
recommendations
RECOMMENDED MOTION:
Motion for Solid Waste staff to convene a special meeting of the Solid Waste Advisory
Committee to review identified FAA Advisory Circular (No. 150/5200-33C) and provide a
recommendation to the Board of Commissioners relative to implementation of the FAA
Advicnry Cirri filar.
BACKGROUND AND POLICY IMPLICATIONS:
During recent discussions with the Redmond Airport, Solid Waste staff learned of Redmond
Airport management's concerns with regards to Federal Aviation Administration (FAA)
Circular Advisory (No. 150/5200-33C) which provides a recommendation (as opposed to a
mandate) that new landfills not be sited within a 5 mile radius of public access airports.
See attached.
The public access airports in Deschutes County, as provided by FAA criteria are: Redmond,
Bend, and Sunriver. Solid Waste staff has met with managers at the Redmond and Bend
airports and confirmed that the airport managers are in agreement with the FAA
recommendation that no new landfill be sited within a 5 mile radius. [Note: there are no
candidate sites within 5 miles of the Sunriver airport.]
Solid Waste staff and retained consultants recognize that the 5 mile restriction, if accepted,
does in fact constitute a Fatal Flaw and could be addressed administratively meaning that
the following sites would be removed from further consideration: (1) the Negus Transfer
Station in Redmond, (2) the Central Oregon Irrigation District property east of Bend, and (3)
the County owned property east of Bend.
Page 2
Solid Waste staff recommends that the Board of County Commissioners direct staff to
convene a special meeting of the Solid Waste Advisory Committee to review identified FAA
Advisory Circular (No. 150/5200-33C) and provide a recommendation to the Board of
Commissioners relative to implementation of the FAA Advisory Circular.
BUDGET IMPACTS:
None
ATTENDANCE:
Chad Centola, Director of Solid Waste
Public Airports
O
U.S. Department
of Transportation
Federal Aviation
Administration
Advisory
Circular
Subject: Hazardous Wildlife Attractants on or
near Airports
Date: 02/21/2020 AC No: 150/5200-33C
Initiated By: AAS-300 Change:
1 Purpose.
This Advisory Circular (AC) provides guidance on certain land uses that have the
potential to attract hazardous wildlife on or near public -use airports. It also discusses
airport development projects (including airport construction, expansion, and
renovation) affecting aircraft movement near hazardous wildlife attractants. Appendix 1
provides definitions of terms used in this AC.
2 Cancellation.
This AC cancels AC 150/5200-33B, Hazardous Wildlife Attractants on or near
Airports, dated August 28, 2007.
3 Application.
The Federal Aviation Administration recommends the guidance in this AC for land
uses that have the potential to attract hazardous wildlife on or near public -use airports.
This AC does not constitute a regulation, is not mandatory, and is not legally binding in
its own right. It will not be relied upon as a separate basis by the FAA for affirmative
enforcement action or other administrative penalty. Conformity with this AC is
voluntary, and nonconformity will not affect rights and obligations under existing
statutes and regulations, except as follows:
1. Airports that hold Airport Operating Certificates issued under Title 14, Code of
Federal Regulations (CFR), Part 139, Certification of Airports, Subpart D, may use
the standards, practices and recommendations contained in this AC as one, but not
the only, acceptable means of compliance with the wildlife hazard management
requirements of Part 139.
2. The FAA recommends the guidance in this AC for airports that receive funding
under Federal grant assistance programs, including the Airport Improvement
Program. See Grant Assurance #34.
2/21/2020 AC 150/5200-33C
3. The FAA recommends the guidance in this AC for projects funded by the Passenger
Facility Charge program. See PFC Assurance #9.
4. The FAA recommends the guidance in this AC for land -use planners and developers
of projects, facilities, and activities on or near airports.
4 Principal Changes.
Changes are marked with vertical bars in the margin. Change in this AC include:
1. Clarification by the FAA that non -certificated airports are recommended to conduct
a Wildlife Hazard Assessment (Assessment) or a Wildlife Hazard Site Visit (Site
Visit);
2. Table 1, Ranking of Hazardous Species, has been moved to Advisory Circular
150/5200-32, Reporting Wildlife Aircraft Strikes (5/31/2013);
3. Consolidation and reorganization of discussion on land uses of concern; and
updated procedures for evaluation and mitigation. Discussion addresses off -airport
hazardous wildlife attractants, followed by discussion of on -airport attractants. It
also clarifies language regarding the applicability of the AC.
5 Background.
1. Information about the risks posed to aircraft by certain wildlife species has
increased a great deal in recent years. Improved reporting, studies, documentation,
and ie riy show that aircraft iiisi .«s with birds and other .. ild i
statistics clearly collisions birds W11u111G arc a
serious economic and public safety problem. While many species of wildlife can
pose a risk' to aircraft safety, they are not equally hazardous2. These hazard
rankings can help focus hazardous wildlife management efforts on those species or
groups that represent the greatest risk to safe air and ground operations in the airport
environment. Used in conjunction with a site -specific Assessment that will
determine the relative abundance and use patterns of wildlife species, these rankings
combined with a systematic risk analysis can help airport operators better
understand the general threat level (and consequences) of certain wildlife species.
Also, the rankings can assist with the creation of a "high risk" list of hazardous
species that warrant immediate attention.
2. Most public -use airports have large tracts of open, undeveloped land that provide
added margins of safety and noise mitigation. These areas can also present potential
hazards to aviation if they encourage wildlife to enter an airport's approach or
departure airspace or aircraft operations area. Constructed or natural areas— such as
Risk is the relationship between the severity and probability of a threat. It is the product of hazard level and
abundance in the critical airspace, and is thus defined as the probability of a damaging strike with a given species.
2 Hazardous wildlife are species of wildlife (birds, mammals, reptiles), including feral and domesticated animals, not
under control that may pose a direct hazard to aviation (i.e., strike risk to aircraft) or an indirect hazard such as an
attractant to other wildlife that pose a strike hazard or are causing structural damage to airport facilities (e.g.,
burrowing, nesting, perching).
ii
2/21/2020 AC 150/5200-33C
poorly drained locations, detention/retention ponds, roosting habitats on buildings,
landscaping, odor -causing rotting organic matter (putrescible waste) disposal
operations, wastewater treatment plants, agricultural or aquaculture activities,
surface mining, wetlands, or some conservation -based land uses can provide
wildlife with ideal locations for feeding, loafing, reproduction, and escape. Even
small facilities, such as fast food restaurants, taxicab staging areas, rental car
facilities, aircraft viewing areas, and public parks, can produce substantial
attractions for hazardous wildlife.
3. During the past century, wildlife -aircraft strikes have resulted in the loss of
hundreds of lives worldwide, as well as billions of dollars in aircraft damage.
Hazardous wildlife attractants on and near airports can jeopardize future airport
expansion, making proper community land -use planning essential. This AC
provides airport operators and those parties with whom they cooperate with the
guidance they need to assess and address potentially hazardous wildlife attractants
when locating new facilities and implementing certain land -use practices on or near
public -use airports.
6 Memorandum of Agreement Between Federal Resource Agencies.
The FAA, the U.S. Air Force, the U.S. Army Corps of Engineers, the U.S.
Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S.
Department of Agriculture - Wildlife Services signed a Memorandum of Agreement
(MOA) to acknowledge their respective missions in protecting aviation from wildlife
hazards. Through the MOA, the agencies established procedures necessary to
coordinate their missions to address more effectively existing and future environmental
conditions contributing to collisions between wildlife and aircraft (wildlife strikes)
throughout the United States. These efforts are intended to minimize wildlife risks to
aviation and human safety while protecting the Nation's valuable environmental
resources.
7 Feedback on this AC.
If you have suggestions for improving this AC, you may use the Advisory Circular
Feedback form at the end of this AC.
Director of Airport Safety and Standards
iii
2/21/2020 AC 150/5200-33C
CONTENTS
Paragraph Page
Chapter 1. General Separation Criteria for Hazardous Wildlife Attractants on or
Near Airports 1-1
1.1 Introduction 1-1
1.2 Airports Serving Piston -Powered Aircraft. 1-1
1.3 Airports Serving Turbine -Powered Aircraft 1-2
1.4 Protection of Approach, Departure, and Circling Airspace. 1-2
Chapter 2. Land -Use Practices on or Near Airports that Potentially Attract
Hazardous Wildlife 2-1
2.1 General 2-1
2.2 Waste Disposal Operations. 2-2
2.3 Water Management Facilities. 2-4
2.4 Wetlands. 2-8
2.5 Dredge Spoil Containment Areas. 2-10
2.6 Agricultural Activities. 2-10
2.7 Aquaculture. 2-12
2.8 Golf Courses, Landscaping, Structures and Other Land -Use Considerations2-14
2.9 Habitat for State and Federally -Listed Species on Airports 2-16
2.10 Synergistic Effects of Surrounding Land Uses 2-17
Chapter 3. Procedures for Wildlife Hazard Management by Operators of Public -
Use Airports and Conditions for Non -Certificated Airports to Conduct Wildlife
Hazard Assessments and Wildlife Hazard Site Visits 3-1
3.1 Introduction 3-1
3.2 Coordination with Qualified Airport Wildlife Biologists 3-1
3.3 Wildlife Hazard Management at Airports: A Manual For Airport Personnel 3-1
3.4 Wildlife Hazard Site Visits and Wildlife Hazard Assessments 3-2
3.5 Wildlife Hazard Management Plan 3-2
3.6 Local Coordination. 3-3
3.7 Operational Notifications of Wildlife Hazards 3-3
3.8 Federal and State Depredation Permits 3-4
iv
2/21/2020 AC 150/5200-33C
Chapter 4. Recommended Procedures for the FAA, Airport Operators and Other
Government Entities Regarding Off -Airport Attractants 4-1
4.1 FAA Notification and Review of Proposed Land -Use Practice Changes in the
Vicinity of Public -Use Airports 4-1
4.2 Waste Management Facilities. 4-2
4.3 Other Land -Use Practice Changes. 4-3
4.4 Coordination to Prevent Creation of New Off -Airport Hazardous Wildlife
Attractants. 4-4
4.5 Coordination on Existing Off -Airport Hazardous Wildlife Attractants. 4-5
4.6 Prompt Remedial Action. 4-5
4.7 FAA Assistance 4-5
Appendix A. Definitions of Terms Used in this Advisory Circular A-1
Appendix B. Additional Resources B-1
v
2/21/2020 AC 150/5200-33C
Page Intentionally Blank
vi
2/21/2020 AC 150/5200-33C
CHAPTER 1. GENERAL SEPARATION CRITERIA FOR HAZARDOUS WILDLIFE
ATTRACTANTS ON OR NEAR AIRPORTS
1.1 Introduction.
Airport operators should maintain an appropriate environment for the safe and
efficient operation of aircraft, which entails mitigating wildlife strike hazards by
fencing, modifying the landscape in order to deter wildlife or by hazing or removing
wildlife hazardous to aircraft from congregating on airports. When considering
proposed land uses, operators and sponsors of airports certificated under Part 139,
local planners, and developers must take into account whether the proposed land uses,
including new development projects, will increase wildlife hazards. Land -use
practices that attract or sustain hazardous wildlife populations on or near airports,
specifically those listed in Chapter 2, can significantly increase the potential for
wildlife strikes.
1.1.2 The FAA urges regulatory agencies and planning and zoning agencies to evaluate
proposed new land uses within the separation criteria and prevent the creation of land
uses that attract or sustain hazardous wildlife within the separation distances.
1.1.3 The FAA recommends the use of minimum separation criteria outlined below for
land -use practices that attract hazardous wildlife to the vicinity of airports. Please
note that FAA criteria include land uses that cause movement of hazardous wildlife
onto, into, or across the airport's approach or departure airspace or aircraft operations
area. (See the discussion of the synergistic effects of surrounding land uses in
Paragraph 2.8 of this AC.). For the purpose of evaluating distance criteria, the
delineation of the aircraft operations area may also consider future airport
development plans depicted on the Airport Layout Plan (e.g., planned runway
extension).
1.1.4 The separation distances are based on (1) flight patterns and performance criteria of
piston -powered aircraft and turbine -powered aircraft, (2) the altitude at which most
strikes happen (78 percent occur under 1,000 feet and 90 percent occur under 3,000
feet above ground level), and (3) National Transportation Safety Board
recommendations.
1.2 Airports Serving Piston -Powered Aircraft.
Airports that do not sell Jet -A fuel normally serve piston -powered aircraft.
Notwithstanding more stringent requirements for specific land uses, the FAA
recommends a separation distance of 5,000 feet from these airports for any of the
hazardous wildlife attractants discussed in Chapter 2 or for new airport development
projects meant to accommodate aircraft movement. This distance is to be maintained
between the closest point of the airport's aircraft operations area and the hazardous
wildlife attractant. Figure 1 depicts an example of the 5,000-foot separation distance
measured from the nearest aircraft operations area.
1-1
2/21/2020 AC 150/5200-33C
1.3 Airports Serving Turbine -Powered Aircraft.
For airports serving turbine -powered aircraft, the FAA recommends a separation
distance of 10,000 feet from these airports for any of the hazardous wildlife attractants
discussed in Chapter 2 or for new airport development projects meant to accommodate
aircraft movement. This distance is to be maintained between the closest point of the
airport's aircraft operations area and the hazardous wildlife attractant. Figure 1 depicts
an example of the 10,000-foot separation distance from the nearest aircraft movement
areas.
1.4 Protection of Approach, Departure, and Circling Airspace.
For all airports, the FAA recommends a distance of 5 miles between the closest point of
the airport's aircraft operations area and the hazardous wildlife attractant. Special
attention should be given to hazardous wildlife attractants that could cause hazardous
wildlife movement into or across the approach or departure airspace. Figure 1 depicts
an example of the 5-mile separation distance measured from the nearest aircraft
operations area.
1-2
2/21/2020
AC 150/5200-33C
Figure 1. Example of recommended separation distances described in Chapter 1
within which hazardous wildlife attractants should be avoided, eliminated, or
mitigated.
PERIMETER A: For airports serving piston -powered aircraft, it is recommended hazardous
wildlife attractants be 5,000 feet from the nearest aircraft operations area.
PERIMETER B: For airports serving turbine -powered aircraft, it is recommended hazardous
wildlife attractants be 10,000 feet from the nearest aircraft operations area.
PERIMETER C: Recommended for all airports, 5-mile range to protect approach, departure and
circling airspace.
1-3
2/21/2020 AC 150/5200-33C
Page Intentionally Blank
1-4
2/21/2020 AC 150/5200-33C
CHAPTER 2. LAND -USE PRACTICES ON OR NEAR AIRPORTS THAT POTENTIALLY
ATTRACT HAZARDOUS WILDLIFE
2.1 General.
2.1.1 Many types of vegetation, habitats and land use practices can provide an attractant to
animals that pose a risk to aviation safety. Hazardous wildlife use the natural or
artificial habitats on or near an airport for food, water or cover. The wildlife species
and the size of the populations attracted to the airport environment vary considerably,
depending on several factors, including land -use practices on or near the airport. In
addition to the specific considerations outlined below, airport operators should refer
to Wildlife Hazard Management at Airports manual, prepared by FAA and U.S.
Department of Agriculture (USDA) staff. (This manual is available in English,
Spanish, and French). This manual, as well as other helpful resources can be viewed
and downloaded free of charge from the Wildlife Strike Resources section of the
FAA's wildlife hazard mitigation web site:
http://www.FAA.gov/airports/airport safety/wildlife).
2.1.1.1 The USDA / Animal and Plant Health Inspection Service (APHIS) /
Wildlife Services developed a new publication series on wildlife damage
management and is available online. The Wildlife Damage Management
Technical Series highlights wildlife species or groups of wildlife species
that cause damage to agriculture, property and natural resources, and/or
impact aviation and human health and safety. The publications can be
found at:
https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa reports/ct
wildlife+damage+management+technical+series.
2.1.1.2 Additional resources have been provided by the USDA / APHIS / Wildlife
Services National Wildlife Research Center (NWRC) at:
https://www. aphis.usda. gov/aphis/ourfocus/wildlifedamage/programs/nwr
c/sa publications/ct research _gateway. The NWRC Research Gateway
contains research articles, reports, factsheets, technical notes, data and
other materials on wildlife hazard mitigation, risk reduction, animal
ecology, habitats, and advanced technologies and methodologies.
2.1.2 This section discusses land -use practices having the potential to attract hazardous
wildlife and threaten aviation safety. The FAA has determined that the land uses
listed below are generally not compatible with safe airport operations when they are
located within the separation distances provided in Paragraphs 1.2 through 1.4.
2.1.3 As a reminder, these types of land uses or facilities often require permits from the
appropriate permitting agency. The FAA may work with the permitting agency to
include conditions for monitoring and mitigation measures, if necessary. Ultimately,
the peiurittee is responsible for compliance to these conditions and the permitting
agency is responsible for tracking compliance.
2-1
2/21/2020 AC 150/5200-33C
2.2 Waste Disposal Operations.
Municipal solid waste landfills (municipal landfills) are known to attract large numbers
of hazardous wildlife, particularly birds. Because of this, these operations, when located
within the separations identified in the siting criteria in Paragraphs 1.2 through 1.4, are
considered incompatible with safe airport operations.
2.2.1 Siting for New Municipal Solid Waste Landfills Subject to AIR 21.
2.2.1.1 Section 503 of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (P. L. 106-181) (AIR 21), 49 U.S.C. § 44718(d),
prohibits the construction or establishment of a new municipal landfill
within 6 miles of certain public -use airports. Before these prohibitions
apply, both the airport and the landfill must meet the very specific
conditions described below. These restrictions do not apply to airports or
landfills located within the state of Alaska.
2.2.1.2 The airport must (1) have received a Federal grant(s) under 49 U.S.C. §
47101, et. seq.; (2) be under control of a public agency; (3) serve some
scheduled air carrier operations conducted in aircraft with less than 60
seats; and (4) have total annual enplanements consisting of at least 51
percent of scheduled air carrier enplanements conducted in aircraft with
less than 60 passenger seats.
2.2.1.3 The proposed municipal landfill must (1) be within 6 miles of the airport,
as measurer] frnm airnnrt nrnnerty line to the landfill nrnnerty line and (7)
r r. t ..� r r _.� , i
have started construction or establishment on or after April 5, 2001.
Section 44718(d) only limits the construction or establishment of some
new landfills. It does not limit the expansion, either vertical or horizontal,
of existing landfills.
2.2.1.4 Regarding existing municipal landfills and lateral expansions of landfills,
40 CFR § 258.10 requires owners or operators of a landfill units located
within the separation distances provided in Paragraphs 1.2 through 1.4 to
demonstrate that the unit is designed and operated so that it does not pose
a bird hazard to aircraft. To accomplish this, follow the instructions
provided in Paragraphs 3.2 and 3.3, document the wildlife monitoring and
mitigation procedures that are cooperatively developed, and place this
documentation in the operating permit of the facility.
2.2.2 Siting for New Municipal Landfills Not Subject to AIR 21.
If an airport and a municipal landfill do not meet the criteria of § 44718(d), then FAA
recommends against locating the landfill within the separation distances identified in
Paragraphs 1.2 through 1.4. In determining this distance separation, measurements
should be made from the closest point of the airport property boundary to the closest
point of the landfill property boundary.
2-2
2/21/2020 AC 150/5200-33C
2.2.3 Considerations for Existing Waste Disposal Facilities Within the Limits of Separation
Criteria.
The FAA recommends against airport development projects that would increase the
number of aircraft operations or accommodate larger or faster aircraft near landfill
operations located within the separations identified in Paragraphs 1.2 through 1.4. In
addition, in accordance with 40 CFR § 258.10, owners or operators of existing landfill
units that are located within the separations listed in Paragraphs 1.2 through 1.4 must
demonstrate that the unit is designed and operated so it does not pose a bird hazard to
aircraft. (See Paragraph 4.3.2 of this AC for a discussion of this demonstration
requirement.)
2.2.4 Enclosed Trash Transfer Stations.
Enclosed waste -handling facilities that receive garbage behind closed doors; process it
via compaction, incineration, or similar manner; and remove all residue by enclosed
vehicles generally are compatible with safe airport operations, provided they are
constructed and operated properly and are not located on airport property or within the
Runway Protection Zone. These facilities should not handle or store putrescible waste
outside or in a partially enclosed structure accessible to hazardous wildlife. Trash
transfer facilities that are open on one or more sides; or store uncovered quantities of
municipal solid waste outside, even if only for a short time; or use semi -trailers that
leak or have trash clinging to the outside; or do not control odors by ventilation and
filtration systems (odor masking is not acceptable) do not meet the FAA's definition of
fully enclosed trash transfer stations. The FAA considers fully enclosed waste -handling
facilities constructed or operated incorrectly incompatible with safe airport operations if
they are located closer than the separation distances specified in Paragraphs 1.2 through
1.4.
2.2.5 Composting Operations on or near Airport Property.
Composting operations that accept only yard waste (e.g., leaves, lawn clippings, or
branches) generally do not attract hazardous wildlife. Sewage sludge, woodchips, and
similar material are not municipal solid wastes and may be used as compost bulking
agents. The compost, however, must never include food or other municipal solid waste.
Composting operations should not be located on airport property unless effective, risk -
reducing mitigations are in place. Off -airport property composting operations should be
located no closer than the greater of the following distances: 1,200 feet from any
aircraft operations area or the distance called for by airport design requirements (see
AC 150/5300-13, Airport Design). This spacing should prevent material, personnel, or
equipment from penetrating any Object Free Area, Obstacle Free Zone, Threshold
Siting Surface, or Clearway. Airport operators should monitor composting operations
located in proximity to the airport to ensure that steam or thermal rise does not
adversely affect air traffic.
2.2.6 Underwater Waste Discharges.
The FAA recommends against the underwater discharge of any food waste (e.g., fish
processing offal) within the separations identified in Paragraphs 1.2 through 1.4
because it could attract scavenging hazardous wildlife.
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2.2.7 Recycling Centers.
Recycling centers that accept previously sorted non-food items, such as glass,
newspaper, cardboard, aluminum, electronic, and household wastes such as paint,
batteries, and oil, are, in most cases, not attractive to hazardous wildlife and are
acceptable.
AC 150/5200-33C
2.2.8 Construction and Demolition Debris Facilities.
2.2.8.1 Construction and demolition landfills generally do not attract hazardous
wildlife and are acceptable if maintained in an orderly manner, admit no
putrescible waste, and are not co -located with other waste disposal
operations. However, construction and demolition landfills have similar
visual and operational characteristics to putrescible waste disposal sites.
When co -located with putrescible waste disposal operations, construction
and demolition landfills are more likely to attract hazardous wildlife
because of the similarities between these disposal facilities.
2.2.8.2 Therefore, a construction and demolition landfill co -located with another
waste disposal operation should be located outside of the separations
identified in Paragraphs 1.2 through 1.4.
2.2.8.3 Airport operators should be aware that on -site storage of construction and
maintenance debris, as well as out -of -service aircraft or aircraft
components, may provide an attractant for hazardous species (e.g., nesting
The FAA rernmmends these on -cite areas be
or perching locations)
monitored and/or mitigated, if necessary.
2.2.9 Fly Ash Disposal.
2.2.9.1 The incinerated residue from resource recovery power/heat-generating
facilities that are fired by municipal solid waste, coal, or wood is generally
not a wildlife attractant because it no longer contains putrescible matter.
Landfills accepting only fly ash are generally not considered to be wildlife
attractants and are acceptable as long as they admit no putrescible waste of
any kind, and are not co -located with other disposal operations that attract
hazardous wildlife.
2.2.9.2 Since varying degrees of waste consumption are associated with general
incineration (not resource recovery power/heat-generating facilities), the
FAA considers the ash from general incinerators a regular waste disposal
by-product and, therefore, a hazardous wildlife attractant if disposed of
within the separation criteria outlined in Paragraphs 1.2 through 1.4.
2.3 Water Management Facilities.
Drinking water intake and treatment facilities, storm water and wastewater treatment
facilities, associated retention and settling ponds, ponds built for recreational use, ponds
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and fountains for ornamental purposes, and ponds that result from mining activities
often attract large numbers of potentially hazardous wildlife. Development of new open
water facilities within the separation criteria identified in Paragraphs 1.2 through 1.4
should be avoided to prevent wildlife attractants. If necessary, land -use developers and
airport operators may need to develop management plans, in compliance with local and
state regulations, to support the operation of storm water management facilities on or
near all public -use airports to ensure a safe airport environment. The FAA
recommends these plans be developed in consultation with a Qualified Airport Wildlife
Biologist3, to minimize hazardous wildlife attractants.
2.3.1 Existing Stormwater Management Facilities.
2.3.1.1 On -airport stormwater management facilities allow the quick removal of
surface water, including discharges related to aircraft deicing, from
impervious surfaces, such as pavement and terminal/hangar building roofs.
Existing on -airport detention ponds collect stormwater, protect water
quality, and control runoff. Because they slowly release water after
storms, they may create standing bodies of water that can attract hazardous
wildlife. Where the airport has developed a Wildlife Hazard Management
Plan, Part 139 regulations require the immediate correction of any wildlife
hazards arising from existing stormwater facilities located on or near
airports using appropriate wildlife hazard mitigation techniques. Airport
operators should develop measures to minimize hazardous wildlife
attraction in consultation with a Qualified Airport Wildlife Biologist.
2.3.1.2 Where possible, airport operators should modify stormwater detention
ponds to allow a maximum 48-hour detention period for the design storm.
The combination of open water and vegetation is particularly attractive to
waterfowl and other hazardous wildlife. Water management facilities
holding water longer than 48 hours should be maintained in a manner that
keeps them free of both emergent and submergent vegetation. The FAA
recommends that airport operators avoid or remove retention ponds and
detention ponds featuring dead storage to eliminate standing water.
Detention basins should remain totally dry between rainfalls. Where
constant flow of water is anticipated through the basin, or where any
portion of the basin bottom may remain wet, the detention facility should
include a concrete or paved pad and/or ditch/swale in the bottom to
prevent vegetation that may provide nesting habitat. Drainage basins with
a concrete or paved pad should be maintained to prevent or remove any
sediment build-up to prevent vegetation growth.
2.3.1.3 When it is not possible to drain a large detention pond completely, airport
operators may use physical barriers, such as bird balls, wire grids, pillows,
3 See Advisory Circular 150/5200-36, Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments
and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Hazards on Airports.
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or netting, to deter birds and other hazardous wildlife. When physical
barriers are proposed, airport operators must evaluate their use,
effectiveness and maintenance requirements. Airport operators must also
ensure physical barriers will not adversely affect water rescue. Before
installing any physical barriers over detention ponds on Part 139 airports,
airport operators must get approval from the appropriate FAA Regional
Airports Division Office.
2.3.1.4 The FAA recommends that airport operators encourage off -airport
stormwater treatment facility operators to incorporate appropriate wildlife
hazard mitigation techniques into stormwater treatment facility operating
practices when their facility is located within the separation criteria
specified in Paragraphs 1.2 through 1.4.
2.3.2 New Stormwater Management Facilities.
The FAA recommends that storm water management systems located within the
separations identified in Paragraphs 1.2 through 1.4 be designed and operated so as not
to create above -ground standing water. Stormwater detention ponds should be
designed, engineered, constructed, and maintained for a maximum 48—hour detention
period after the design storm and to remain completely dry between storms. To
facilitate the control of hazardous wildlife, the FAA recommends the use of steep -
sided, rip -rap or concrete lined, narrow, linear -shaped water detention basins. When'it
is not possible to place these ponds away from an airport's aircraft operations area (but
still on airport property), airport operators may use physical barriers, such as bird balls,
wire grids, floating covers, vegetation barriers (bottom liners), or netting, to prevent
access of hazardous wildlife to open water and minimize aircraft -wildlife interactions.
Caution is advised when nets or wire grids are used for deterring birds from attractants.
Mesh size should be < 5 cm (2") to avoid entangling and killing birds and should not be
made of a monofilament material. Grids installed above and across water to deter
hazardous birds (e.g., waterfowl, cormorants, etc.) are different than using a small mesh
covering but also provides an effective deterrent. Grid material, size, pattern and height
above water may differ on a case -by -case basis. When physical barriers are used,
airport operators must evaluate their use and ensure they will not adversely affect water
rescue. Before installing any physical barriers over detention ponds on Part 139
airports, a review by a Qualified Airport Wildlife Biologist should be conducted, prior
to approval from the appropriate FAA Regional Airports Division Office. All
vegetation in or around detention basins that provide food or cover for hazardous
wildlife should be eliminated. If soil conditions and other requirements allow, the FAA
encourages the use of underground storm water infiltration systems because they are
less attractive to wildlife.
2.3.3 Existing Wastewater Treatment Facilities.
2.3.3.1 The FAA recommends that airport operators immediately correct any
wildlife hazards arising from existing wastewater treatment facilities
located on or near the airport.
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2.3.3.2 Where required, a wildlife management plan will outline appropriate
wildlife hazard mitigation techniques. Accordingly, airport operators
should encourage wastewater treatment facility operators to incorporate
measures, developed in consultation with a Qualified Airport Wildlife
Biologist, to minimize hazardous wildlife attractants. Airport operators
should also encourage those wastewater treatment facility operators to
incorporate these mitigation techniques into their standard operating
practices. In addition, airport operators should consider the existence of
wastewater treatment facilities when evaluating proposed sites for new
airport development projects and avoid such sites when practicable.
2.3.4 New Wastewater Treatment Facilities.
The FAA recommends against the construction of new wastewater treatment facilities
or associated settling ponds within the separations identified in Paragraphs 1.2 through
1.4. Appendix 1 defines wastewater treatment facility as "any devices and/or systems
used to store, treat, recycle, or reclaim municipal sewage or liquid industrial wastes."
The definition includes any pretreatment involving the reduction or elimination of
pollutants prior to introducing such pollutants into a treatment facility. When a
wastewater treatment facility is proposed within the separation criteria, the airport
operator, project proponent, and local jurisdiction should discuss the proposed project
location with regard to its location near the airport and the separation distances
identified in Paragraphs 1.2 through 1.4. If possible, a more suitable location for the
proposed facility should be identified. If no other suitable location exists, FAA
recommends that the proposed facility plans be reviewed by a Qualified Airport
Wildlife Biologist to identify measures to avoid or reduce the facility's potential to
attract hazardous wildlife. If appropriate measures cannot be incorporated to reduce
potential wildlife hazards, airport operators should document their opposition in a letter
to the local jurisdiction.
2.3.5 Artificial Marshes.
In warmer climates, wastewater treatment facilities sometimes employ artificial
marshes and use submergent and emergent aquatic vegetation as natural filters. These
artificial marshes may be used by some species of flocking birds, such as blackbirds
and waterfowl, for breeding or roosting activities. The FAA recommends against
establishing artificial marshes within the separations identified in Paragraphs 1.2
through 1.4.
2.3.6 Wastewater Discharge and Sludge Disposal.
The FAA recommends careful consideration regarding the discharge of wastewater or
biosolids (i.e., secondarily treated sewage sludge) on airport property. Such discharges
might improve soil moisture and quality on unpaved areas and lead to improved turf
growth. Depending on the airfield plant communities and habitats present, this can be
an attractive food source for many species of animals or, conversely, could result in
limited attractiveness to hazardous wildlife. Also, improved turf requires more frequent
mowing and could attract geese. Airports should improve their turf with the goal of a
monoculture of turf that is least attractive to wildlife. Wastewater or biosolids
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applications might assist in achieving this goal. Caution should be exercised when
discharges saturate airfield areas adjacent to paved surfaces. The resultant soft, muddy
conditions could restrict or prevent emergency vehicles from reaching accident sites in
a timely manner.
2.4 Wetlands.
Wetlands provide a variety of functions and can be regulated by local, state, and
Federal laws. Wetlands can be attractive to many types of wildlife, including many
which rank high on the list of hazardous wildlife species (Table 1 - AC 150/5200-32).
Some types of wetlands are not as attractive to wildlife as others and they should be
reviewed on a case -by -case basis to determine the likelihood of proposed wetlands
increasing the numbers of hazardous wildlife at the airport. Factors such as size, shape,
location, canopy cover and vegetative composition among other things should be
considered when determining compatibility.
Note: If questions exist as to whether an area qualifies as a wetland, contact the District
Office of the U.S. Army Corps of Engineers, the Natural Resources Conservation
Service, or a wetland consultant qualified to delineate wetlands.
2.4.1 Existing Wetlands on or near Airport Property.
If wetlands are located on or near airport property, airport operators should be alert to
any wildlife use or habitat changes in these areas that could affect safe aircraft
operations. At public -use airports, the FAA recommends immediately correcting, in
cooperation with local, state, and Federal regulatory agencies, any wildlife hazards
arising from existing wetlands located on or near airports within 5 miles of the aircraft
operations area. Where required, a wildlife management plan will outline appropriate
wildlife hazard mitigation techniques. Accordingly, airport operators should develop
measures to minimize hazardous wildlife attraction in consultation with a FAA
Qualified Airport Wildlife Biologist.
2.4.2 New Airport Development.
Whenever possible, the FAA recommends locating new airports using the separations
from wetlands identified in Paragraphs 1.2 through 1.4. Where alternative sites are not
practicable, or when airport operators are expanding an existing airport into or near
wetlands, a Qualified Airport Wildlife Biologist, in coordination with the U.S. Fish and
Wildlife Service, the U.S. Army Corps of Engineers, and the state wildlife management
agency should evaluate the wildlife hazards and prepare a wildlife management plan
that indicates methods of minimizing the hazards.
2.4.3 Mitigation for Wetland Impacts from Airport Projects.
Wetland mitigation may be necessary when unavoidable wetland disturbances result
from new airport development projects or projects required to correct wildlife hazards
from wetlands. Wetland mitigation must be designed so it does not create a wildlife
hazard. The FAA recommends that wetland mitigation projects that may attract
hazardous wildlife be sited outside of the separations identified in Paragraphs 1.2
through 1.4.
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2.4.3.1 Onsite Mitigation of Wetland Functions.
Wetland mitigation/conservation easements must not inhibit the airport
operator's ability to effectively control hazardous wildlife on or near the
mitigation site or effectively maintain other aspects of safe airport
operations. Enhancing such mitigation areas to attract hazardous wildlife
must be avoided. The FAA will review any onsite mitigation proposals to
determine compatibility with safe airport operations and grant assurance
compliance. Early coordination with the FAA is encouraged for any
proposal to use airport land for wetland mitigation. A Qualified Airport
Wildlife Biologist should evaluate any wetland mitigation projects that are
needed to protect unique wetland functions and that must be located in the
separation criteria in Paragraphs 1.2 through 1.4 before the mitigation is
implemented. A wildlife management plan should be developed to reduce
the wildlife hazards.
2.4.3.2 Offsite Mitigation of Wetland Functions.
2.4.3.2.1
2.4.3.2.2
2.4.3.2.3
2.4.3.2.4
The FAA recommends that wetland mitigation projects that may attract
hazardous wildlife be sited outside of the separations identified in
Paragraphs 1.2 through 1.4 unless they provide unique functions that must
remain onsite (see 2.4.3.1). Agencies that regulate impacts to or around
wetlands recognize that it may be necessary to split wetland functions in
mitigation schemes. Therefore, regulatory agencies may, under certain
circumstances, allow portions of mitigation to take place in different
locations.
The FAA encourages landowners or communities supporting the
restoration or enhancement of wetlands to do so only after critically
analyzing how those activities would affect aviation safety. To do so,
landowners or communities should contact the affected airport sponsor,
FAA, and/or a Qualified Airport Wildlife Biologist.
Those parties should work cooperatively to develop restoration or
enhancement plans that would not worsen existing wildlife hazards or
create such hazards. See Paragraphs 4.1.1 — 4.1.3 for land -use
modifications evaluation criteria.
If parties develop a mutually acceptable restoration or enhancement plan,
the landowner or community proposing the restoration or enhancement
must monitor the restored or enhanced site. This monitoring must verify
that efforts have not worsened or created hazardous wildlife attraction or
activity. If such attraction or activity occurs, the landowner or community
should work with the airport sponsor, or a Qualified Airport Wildlife
Biologist to reduce the hazard to aviation.
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2.4.3.3 Mitigation Banking.
Wetland mitigation banking is the creation or restoration of wetlands in
order to provide mitigation credits that can be used to offset permitted
wetland losses. Mitigation banking benefits wetland resources by
providing advance replacement for permitted wetland losses;
consolidating small projects into larger, better -designed and managed
units; and encouraging integration of wetland mitigation projects with
watershed planning. This last benefit is most helpful for airport projects,
as wetland impacts mitigated outside of the separations identified in
Paragraphs 1.2 through 1.4 can still be located within the same watershed.
Wetland mitigation banks meeting the separation criteria offer an
ecologically sound approach to mitigation in these situations. Airport
operators should work with local watershed management agencies or
organizations to develop mitigation banking for wetland impacts on
airport property.
2.5 Dredge Spoil Containment Areas.
The FAA recommends against locating dredge spoil containment areas (also known as
Confined Disposal Facilities) within the separations identified in Paragraphs 1.2
through 1.4 if the containment area or the spoils contain material that would attract
hazardous wildlife. Proposals for new dredge spoil containment areas located within the
separation distances should be reviewed on a case -by -case basis to determine the
likelihood of resulting in an increase in hazardous wildlife. The FAA recommends that
airport sponsors work with a Qualified Airport Wildlife Biologist and/or the FAA to
review proposals for dredge spoil containment areas located within separation criteria.
2.6 Agricultural Activities.
Many agricultural crops can attract hazardous wildlife and should not be planted within
the separations identified in Paragraphs 1.2 through 1.4. Corn, wheat, and other small
grains in particular should be avoided. If the airport has no financial alternative to
agricultural crops to produce the income necessary to maintain the viability of the
airport, then the airport should consider growing crops that hold little food value for
hazardous wildlife, such as grass hay. Attractiveness to hazardous wildlife species
during all phases of production, from planting through harvest and fallow periods,
should be considered when contemplating the use of airport property for agricultural
production. Where agriculture is present, crop residue (e.g., waste grain) should not be
left in the field following harvest. Also, airports should consult AC 150/5300-13,
Airport Design, to ensure that agricultural crops do not create airfield obstructions or
other safety hazards. Before planning or initiating any agricultural practices on airport
property, operators should get approval from the appropriate FAA regional Airports
Division Office and demonstrate that the additional cost of wildlife control and
potential accidents is offset by revenue generated by agricultural leases. Annual review
of the Airport Certification Manual by the Certification Inspector does not constitute
approval and is insufficient to meet this requirement.
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2.6.1 Livestock Production.
Confined livestock operations (i.e., feedlots, dairy operations, hog or chicken
production facilities, or egg laying operations) often attract flocking birds, such as
blackbirds, starlings, or pigeons that pose a hazard to aviation. Therefore, the FAA
recommends against such facilities within the separations identified in Paragraphs 1.2
through 1.4. The airport operator should be aware of any wildlife hazards that appear to
be attracted to off -site livestock operations and consider working with a Qualified
Airport Wildlife Biologist to identify reasonable and feasible measures that may be
proposed to landowners to reduce the attractiveness of the site to the potentially
hazardous wildlife species.
2.6.1.1 In exceptional circumstances, and following FAA review and approval,
livestock may be grazed on airport property as long as they are off the
airfield and separated behind fencing where they cannot pose a hazard to
aircraft. The livestock should be fed and watered as far away from the
airfield and approach/departure space as possible because the feed and
water may attract birds. The wildlife management plan should include
monitoring and wildlife mitigation for any areas where the livestock and
their feed/water is located in case a wildlife hazard is detected. Airports
without wildlife management plans should equally consider monitoring
and mitigation protocols to identify and address any wildlife hazards
associated with livestock and their feeding operations.
2.6.2 Alternative Uses of Agricultural Land.
2.6.2.1 Habitat modification both on and surrounding an airfield is one of the best
and most economical long term mitigation strategies to decrease risk that
wildlife pose to flight safety. Alternative land uses (e.g., solar and
biofuel) at airports could help mitigate many of the challenges for the
airport operator, developers, and conservationists. However, careful
planning must first determine that proposed alternative energy production
at airports does not create wildlife attractants or other hazards.
2.6.2.2 Some airports are surrounded by vast areas of farmed land within the
distances specified in Paragraphs 1.2 through 1.4. Seasonal uses of
agricultural land for activities such as hunting can create a hazardous
wildlife situation. In some areas, fanners will rent their land for hunting
purposes. Rice farmers, among others, flood their land to attract waterfowl
or for conservation efforts. This is often done during waterfowl hunting
season to obtain additional revenue by renting out duck blinds.
2.6.2.3 The waterfowl hunters then use decoys and call in hundreds, if not
thousands, of birds, creating a threat to aircraft safety. It is recommended
that a Qualified Airport Wildlife Biologist review, in coordination with
local farmers and producers, these types of seasonal land uses and
incorporate mitigating measures into the wildlife management plan, when
possible.
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2.7 Aquaculture.
Aquaculture is the breeding, rearing, and harvesting of fish, shellfish, and plants in all
types of water environments including ponds, rivers, lakes, and the ocean. Aquaculture
is used to produce food fish, sport fish, bait fish, ornamental fish, and to support
restoration activities. Aquacultured species are grown in a range of facilities including
tanks, cages, ponds, and raceways. When an aquaculture facility is proposed within the
separation criteria, the airport operator, project proponent, and local jurisdiction should
discuss the proposed project location with regard to its attraction to hazardous species,
location near the airport and the separation distances identified in Paragraphs 1.2
through 1.4. If a facility is identified as a possible significant attraction, a more suitable
location for the proposed facility should be identified. If no other suitable location
exists, it is recommended that the proposed facility plans be reviewed by a Qualified
Airport Wildlife Biologist to identify measures to avoid or reduce the facility's
potential to attract hazardous wildlife.
2.7.1 Freshwater Aquaculture.
2.7.1.1 Freshwater aquaculture activities (e.g., catfish, tilapia, trout or bass
production) are typically conducted outside of fully enclosed buildings in
constructed ponds or tanks and are inherently attractive to a wide variety
of birds and therefore pose a significant risk to airport safety when within
the separation distances specified in Paragraphs 1.2 through 1.4.
Freshwater aquaculture should only be considered if extensive mitigation
measures have been incorporated to eliminate attraction to hazardous
birds. Examples of such mitigation include:
1. Netting or other material to exclude hazardous birds (e.g., eagles,
osprey, gulls, cormorants);
2. Acoustic hazing including pyrotechnics, propane cannons, directional
sonic/hailing devices and other similar technologies;
3. Feeding procedure cleanliness, exclusion techniques prohibiting birds
from perching or accessing food; efficiency of feeding operation
procedures that reduce fish food attraction to hazardous birds;
4. Operation procedure efficiency transferring live fish to and from
enclosures or removal of dead fish; maintenance and upkeep of
facility;
5. Monitoring, mitigation and communication protocols with nearby
airports as a proactive safety feature in response to specific hazardous
species in the event they are identified at the facility in unacceptable
numbers.
2.7.2 Marine Aquaculture.
Marine aquaculture (Mariculture) refers to the culturing of species that live in the
ocean. When appropriately managed and mitigated as necessary, mariculture facilities
do not pose a significant risk to airport safety.
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2.7.2.1 Finfish Mariculture.
2.7.2.1.1
2.7.2.1.2
U.S. finfish mariculture primarily produces salmon and steelhead trout as
well as lesser amounts of cod, moi, yellowtail, barramundi, seabass, and
seabream. Maricultures use rigid and non -rigid enclosures (e.g., cages) at
the surface or submerged in the water column. These enclosures may be
fully enclosed, or be open at the top or covered with netted material to
negate losses from depredation by birds or other predators. Different
facilities employ different designs and operational protocols.
While mariculture operations typically do not pose a significant attractant
to hazardous birds, design and operational features can be incorporated as
permit conditions to mitigate attraction and effectively reduce this risk.
Examples of such mitigation include:
1. Fully enclosed cages using netting or other material to exclude
hazardous birds (e.g., gulls, cormorants, pelicans) and to insure
retention of fish;
2. Submerged enclosures to reduce attraction to hazardous birds;
3. Feed barge cleanliness, exclusion techniques prohibiting birds from
perching or accessing food; efficiency of feeding operation procedures
that reduce fish food attraction to hazardous birds;
4. Operation procedure efficiency transferring live fish to and from
enclosures or removal of dead fish; maintenance and upkeep of
facility;
5. Monitoring, mitigation and communication protocols with nearby
airports as a proactive safety feature in response to specific hazardous
species in the event they are identified at the facility in unacceptable
numbers.
2.7.2.2 Shellfish Mariculture.
U.S. shellfish mariculture primarily produces oysters, clams, mussels,
lobster and shrimp. Shellfish may be grown directly on the bottom, in
submerged cages or bags, or on suspended lines. These types of
mariculture operations do not typically present a significant attractant to
hazardous birds. For those operations that are found to pose a significant
risk, design and operation features that diminish possible attraction to
hazardous bird species (e.g., reducing areas for perching or feeding) can
effectively reduce this risk.
2.7.2.3 Plant Mariculture.
2.7.2.3.1
Microalgae, also referred to as phytoplankton, microphytes, or planktonic
algae constitute the majority of cultivated algae. Macroalgae, commonly
known as seaweed, also have many commercial and industrial uses.
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2.7.2.3.2
While few commercial seaweed farms exist, the sector is growing. These
types of mariculture operations do not typically present an attractant to
hazardous birds.
2.8 Golf Courses, Landscaping, Structures and Other Land -Use Considerations.
2.8.1 Golf Courses.
The large grassy areas and open water found on most golf courses are attractive to
hazardous wildlife, particularly Canada geese and some species of gulls. These species
can pose a threat to aviation safety. If golf courses are located on or near airport
property, airport operators should be alert to any wildlife use or habitat changes in these
areas that could affect safe aircraft operations. Accordingly, airport operators should
develop, at a minimum, onsite measures to minimize hazardous wildlife attraction in
consultation with a Qualified Airport Wildlife Biologist. Existing golf courses located
within these separations that have been documented to attract hazardous wildlife are
encouraged to develop a program to reduce the attractiveness of the sites to species that
are hazardous to aviation safety. The FAA recommends against construction of new
golf courses within the separations identified in Paragraphs 1.2 through 1.4 if
determined that the new facility would create a significant wildlife hazard attractant by
a Qualified Airport Wildlife Biologist. Airport operators should ensure these golf
courses are monitored on a continuing basis for the presence of hazardous wildlife. If
hazardous wildlife is detected, corrective actions should be immediately implemented.
2.0.2
Landscaping and Landscape Maintenance.
2.8.2.1 Depending on its geographic location, landscaping can attract hazardous
wildlife. The FAA recommends that airport operators approach
landscaping with caution and confine it to airport areas not associated with
aircraft movements. Vegetation that produces seeds, fruits, or berries, or
that provides dense roosting or nesting cover should not be used. Airports
should develop a landscape plan to include approved and prohibited
plants. The landscape plan should consider the watering needs of mature
plants. A Qualified Airport Wildlife Biologist should review all
landscaping plans. Airport operators should also monitor all landscaped
areas on a continuing basis for the presence of hazardous wildlife. If
hazardous wildlife is detected, corrective actions should be immediately
implemented.
2.8.2.2 Turf grass areas on airports have the potential to be highly attractive to a
variety of hazardous wildlife species. Research conducted by the USDA
Wildlife Services' National Wildlife Research Center has shown that no
one airfield vegetation management regimen will deter all species of
hazardous wildlife in all situations. The composition and height of airfield
grasslands should be properly managed to reduce their attractiveness to
hazardous wildlife. In many situations, an intermediate height,
monoculture turf grass might be most favorable. In cooperation with a
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Qualified Airport Wildlife Biologist, airport operators should develop
airport turf grass management plans on a prescription basis, including
cultivar selection during reseeding efforts, that is specific to the airport's
geographic location, climatic conditions, and the type of hazardous
wildlife likely to frequent the airport.
2.8.2.3 Airport operators should ensure that plant varieties attractive to hazardous
wildlife are not used on the airport. Disturbed areas or areas in need of re -
vegetating should not be planted with seed mixtures containing millet or
any other large -seed producing grass. For airport property already planted
with seed mixtures containing millet, rye grass, or other large -seed
producing grasses, the FAA recommends disking, plowing, or another
suitable agricultural practice to prevent plant maturation and seed head
production. Plantings should follow the specific recommendations for
grass management and seed and plant selection made by the State
University Cooperative Extension Service, the local office of Wildlife
Services, or a Qualified Airport Wildlife Biologist. Airport operators
should also consider developing and implementing a preferred/prohibited
plant species list, reviewed by a Qualified Airport Wildlife Biologist,
which has been designed for the geographic location to reduce the
attractiveness to hazardous wildlife for landscaping airport property.
2.8.3 Structures.
2.8.3.1 CertWin strict -in -Ps attract bird z fnr lnafing and nP3ting, Flat rnnftnps can he
attractive to many species of gulls for nesting, hangars provide roosting /
nesting opportunities for rock doves, towers, light posts and navigation
aids can provide loafing / hunting perches for raptors and aircraft can
provide loafing / nesting sites for European starlings, blackbirds and other
species. These structures should be monitored and mitigated, if located on -
site. Off -site structural attractions may require additional coordination to
effectively mitigate their use by hazardous species.
2.8.3.2 Cellular communications towers are becoming increasingly more
attractive to large birds (e.g., osprey, eagles, herons, vultures) for nesting
and rearing their young. This problem is a growing concern because once
the young fledge from nests built on manmade structures they are more
likely to return to these kinds of sites to reproduce in future years.
2.8.4 Other Hazardous Wildlife Attractants.
Other land uses (e.g., conservation easements, parks, wildlife management areas) or
activities not addressed in this AC may have the potential to attract hazardous wildlife.
Regardless of the source of the attraction, when hazardous wildlife is noted on a public -
use airport, each certificate holder must take prompt remedial action(s) to protect
aviation safety and all non -certificated airports should take prompt remedial action(s) to
protect aviation safety.
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2.9 Habitat for State and Federally Listed Species on Airports.
An airport's air operations area is an artificial environment that has been created and
maintained for aircraft operations. Because an aircraft operations area can be markedly
different from the surrounding native landscapes, it may attract wildlife species that do
not normally occur, or that occur only in low numbers in the area. Some of the
grassland species attracted to an airport's aircraft operations area are at the edge of their
natural ranges, but are attracted to habitat features found in the airport environment.
Also, some wildlife species may occur on the airport in higher numbers than occur
naturally in the region because the airport offers habitat features the species prefer.
Some of these wildlife species are Federal or state -listed threatened and endangered
species or have been designated by state resource agencies as species of special
concern.
2.9.1 State -Listed Species Habitat Concerns.
2.9.1.1 Many state wildlife agencies have requested that airport operators
facilitate and encourage habitat on airports for state -listed threatened and
endangered species or species of special concern. Airport operators should
exercise caution in adopting new management techniques because they
may increase wildlife hazards and be inconsistent with safe airport
operations. Managing the on -airport environment to facilitate or encourage
the presence of hazardous wildlife species can create conditions that are
incompatible with, or pose a threat to, aviation safety.
L.7.1.1, Not all state -listed threatened and endangered species or species of
concern pose a direct threat to aviation safety. However, these species may
pose an indirect threat and be hazardous because they attract other wildlife
species or support prey species attractive to other species that are directly
hazardous. Also, the habitat management practices that benefit these state -
listed threatened and endangered species and species of special concern
may attract other hazardous wildlife species. On -airport habitat and
wildlife management practices designed to benefit wildlife that directly or
indirectly create safety hazard where none existed before are incompatible
with safe airport operations.
2.9.2 Federally Listed Species Habitat Concerns.
2.9.2.1 The FAA supports efforts to protect threatened and endangered species, as
a matter of principle and consistent with the Endangered Species Act of
1973. The FAA must balance these requirements with our requirements
and mission to maintain a safe and efficient airport system. Requests to
enhance or create habitat for threatened and endangered species often
conflict with the safety of the traveling public and may place the protected
species at risk of mortality by aircraft collisions. The FAA does not
support the creation, conservation or enhancement of habitat or refuges to
attract endangered species on airports. If endangered species are present
on an airport, specific obligations may apply under the Endangered
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Species Act, 16 U.S.C. § 1531 et seq. and the airport operator should
contact the Airports District Office Environmental Protection Specialist.
2.9.2.2 The designation of critical habitat for listed species under the Endangered
Species Act on airport lands may be an incompatible land use in conflict
with the intended and dedicated purpose of airport lands and may limit or
preclude the ability of the airport to develop new infrastructure and growth
capacity to meet future air carrier service demand. In addition, depending
on the listed species (primarily but not limited to avian species), the
designation of critical habitat within the separation distances provided in
paragraphs 1.2 - 1.4 can represent a hazardous wildlife attractant in
conflict with 14 CFR Part 139.337.
2.10 Synergistic Effects of Surrounding Land Uses.
There may be circumstances where two or more different land uses would not, by
themselves, be considered hazardous wildlife attractants or are located outside of the
separations identified in Paragraphs 1.2 through 1.4 but collectively may create a
wildlife corridor directly through the airport and/or surrounding airspace. An example
involves a lake located outside of the separation criteria on the east side of an airport
and a large hayfield on the west side of an airport. These two land uses, taken together,
could create a flyway for Canada geese directly across the airspace of the airport.
Airport operators must consider the entire surrounding landscape and community when
developing the wildlife management plan.
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CHAPTER 3. PROCEDURES FOR WILDLIFE HAZARD MANAGEMENT BY OPERATORS
OF PUBLIC -USE AIRPORTS AND CONDITIONS FOR NON -CERTIFICATED AIRPORTS TO
CONDUCT WILDLIFE HAZARD ASSESSMENTS AND WILDLIFE HAZARD SITE VISITS
3.1 Introduction.
In recognition of the increased risk of serious aircraft damage or the loss of human life
that can result from a wildlife strike, the FAA recommends all airports conduct a
Wildlife Hazard Site Visit or Wildlife Hazard Assessment unless otherwise mandated
after an initial triggering events defined in Part 139 Section 139.337. After the airport
has completed the site visit or assessment and implemented a wildlife management
plan, investigations should be conducted following subsequent triggering events to
determine if the original assessment and plan adequately address the situation or if
conditions have changed that would warrant an update to the plan. In this section,
airports that are certificated under 14 C.F.R. § 139.337 are referred to as "certificated
airports" and all others are referred to as "non -certificated airports." When a statement
refers to both certificated and non -certificated airports, "airport" or "all airports" is
used.
3.2 Coordination with Qualified Airport Wildlife Biologists.
Hazardous wildlife management is a complex discipline and conditions vary widely
across the United States. Therefore, only airport wildlife biologists meeting the
qualification requirements in Advisory Circular 150/5200-36, Qualifications for
Wildlife Biologist Conducting Wildi fe Hazard AC essinents and Training Curricuiu'ns
for Airport Personnel Involved in Controlling Wildlife Hazards on Airports, can
conduct Site Visits and Assessments. Airports must maintain documentation that the
Qualified Airport Wildlife Biologist meets the qualification requirements in Advisory
Circular 150/5200-36.
3.3 Wildlife Hazard Management at Airports: A Manual For Airport Personnel.
3.3.1 The Wildlife Hazard Management at Airports manual, prepared by FAA and USDA
Wildlife Services staff, contains a compilation of information to assist airport
personnel in the development, implementation, and evaluation of wildlife
management plans at airports. The manual includes specific information on the nature
of wildlife strikes, legal authority, regulations, wildlife management techniques,
Assessments, Plans, and sources of help and information. The manual is available in
three languages: English, Spanish, and French. It can be viewed and downloaded free
of charge from the FAA's wildlife hazard mitigation web site:
https://www.faa.gov/airports/airport_safety/wildlife. This manual only provides a
starting point for addressing wildlife hazard issues at airports. FAA recommends that
airports consult with a Qualified Airport Wildlife Biologists to assist with
development of a wildlife management plan and the implementation of management
actions by airport personnel.
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3.3.2 There are many other resources complementary to this manual for use in developing
and implementing wildlife management plans. Several are listed in themanual's
bibliography or on the FAA Wildlife Mitigation website:
https://www.faa.gov/airports/airport safety/wildlife
3.4 Wildlife Hazard Site Visits and Wildlife Hazard Assessments.
3.4.1 Operators of certificated airports are encouraged to conduct an initial assessment
regardless of whether the airport has experienced one of the triggering events. Doing
so would allow the airport to take proactive action and mitigate the wildlife risk
before experiencing an incident. All other airports are encouraged to conduct an
assessment or site visit (as defined in FAA Advisory Circular 150/5200-38)
conducted by a Qualified Airport Wildlife Biologist (as defined in FAA Advisory
Circular 150/5200-36). Part 139 certificated airports are currently required to ensure
that an assessment is conducted consistent with 14 C.F.R. § 139.337.
3.4.2 The intent of a site visit is to provide an abbreviated analysis of an airport's wildlife
hazards and to provide timely information that allows the airport to expedite the
mitigation of these hazards. The FAA also recommends that airports conduct an
assessment or site visit as soon as practicable in order to identify any immediate
wildlife hazards and/or mitigation measures.
3.4.3 Non -certificated airports should submit the results of the site visit or assessment to the
FAA for review. The FAA will review the submitted site visit or assessment and
make a recommendation regarding the development of a wildlife management plan. A
wildlife management plan can be developed based on a site visit and will be required
if the non -certificated airport is going to request federal grants for the purpose of
mitigating wildlife hazards.
3.5 Wildlife Hazard Management Plan.
3.5.1 The FAA will consider the results of the assessment, along with the aeronautical
activity at the airport and the views of the airport operator and airport users, in
determining whether a wildlife management plan is needed for certificated airports, or
recommended for non -certificated airports.
3.5.2 If the FAA determines that a wildlife management plan is needed for a certificated
airport, the airport operator must formulate a plan, using the assessment as its basis
and submit to the FAA for approval. If the FAA recommends that a non -certificated
airport develop a plan, either an assessment or a site visit can be used as the basis for
the wildlife management plan. Airports should consult AC 150/5200-38, Protocol for
the Conduct and Review of Wildlife Hazard Site Visits, Wildlife Hazard Assessments,
and Wildlife Hazard Management Plans, for further information on preparation and
implementation requirements for their wildlife management plan.
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3.5.3 The goal of an airport's wildlife management plan is to minimize the risk to aviation
safety, airport structures or equipment, or human health posed by populations of
hazardous wildlife on and around the airport. For wildlife management plans to
effectively reduce wildlife hazards on and near airports, accurate and consistent
wildlife strike reporting is essential. Airports should consult AC 150/5200-32,
Reporting Wildlife Aircraft Strikes, for further information on responsibilities and
recommendations concerning wildlife strikes.
3.5.4 The wildlife management plan must identify hazardous wildlife attractants on or near
the airport and the appropriate wildlife management techniques to minimize the
wildlife hazard. It must also prioritize the management measures.
3.6 Local Coordination.
The FAA recommends establishing a Wildlife Hazards Working Group to facilitate the
communication, cooperation, and coordination of the airport and its surrounding
community necessary to ensure the effectiveness of the wildlife management plan. The
cooperation of the airport community is essential to prevent incompatible development
in the airport vicinity. Whether on or off the airport, input from all involved parties
must be considered when a potentially hazardous wildlife attractant is being proposed.
Based on available resources, airport operators should undertake public education
activities with the local planning agencies because some activities in the vicinity of an
airport, while harmless under noiinal conditions, can attract wildlife and present a
danger to aircraft (see Paragraphs 4.5 to 4.8). For example, if public trails are planned
wetlands
parks adjoining airport property, public that
near wetldnu5 or in the public should know ia�
feeding birds and other wildlife in the area may pose a risk to aircraft.
3.7 Operational Notifications of Wildlife Hazards.
3.7.1 Operational notifications include active correspondence addressing wildlife issues on
or near an airport, notifications and alerts. If an existing land -use practice creates a
wildlife hazard and the land -use practice or wildlife hazard cannot be immediately
eliminated, airport operators must issue a Notice to Airmen (NOTAM) and encourage
the land owner or manager to take steps to control the wildlife hazard and minimize
further attraction. Permanent attractions that cannot be eliminated or mitigated may
be noted in the Airport/Facility Directory. NOTAMS and Airport/Facility Directory
notifications are not appropriate for short-term or immediate advisories that can be
relayed via Pilot Reports, direct air traffic control voice communications, or
temporary Automated Terminal Advisory System alerts. Care should be given to
avoid the continual broadcast of general warnings for extended periods of time.
General warnings such as "birds in the vicinity of the aerodrome" offer little timely
information to aid pilots and eventually may be ignored if not updated.
3.7.2 The Automated Terminal Advisory System (ATIS) is a continuous broadcast of
recorded aeronautical information for aerodromes and their immediate surroundings.
ATIS broadcasts contain essential information, such as current weather information,
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active runways, available approaches, wildlife hazards and any other information
required by the pilots. They indicate significant (moderate or severe) wildlife activity,
as reported by an approved agency that presents temporary hazards on the ATIS
broadcast. Pilots take notice of available ATIS broadcasts before contacting the local
control unit, which reduces the controllers' workload and relieves frequency
congestion. The recording is updated in fixed intervals or when there is a significant
change in the information. Although ATIS broadcasts involving wildlife should be
timely and specific, pilots do not need to know species -specific information. General
descriptive information detailing size and number of animals, locations and timing of
occurrence provides useful, actionable information for pilots.
3.7.3 A pilot report (PIREP) is reported by a pilot to indicate encounters of hazardous
weather (e.g., icing or turbulence) and hazardous wildlife. Pilot reports are short-lived
warnings providing immediate information on pilot observations that are transmitted
in real-time to air traffic control. Large animals near active surfaces, soaring vultures
and raptors within approach/ departure corridors and waterfowl such as geese feeding
in grassy areas next to runways are all examples of pilot reports generated by pilots.
3.8 Federal and State Depredation Permits.
The FAA recommends that airports maintain federal and state depredation permits to
allow mitigation and/ or removal of hazardous species. All protected species require
special permits for lethal mitigation or capture and relocation procedures. Similarly,
endangered or threatened species mitigation also requires special permits. The FAA
a_ that work closely Qualified Wildlife Biologist
recommends airports l.1VJG1�' with a Qualified Airport v iiuiii� Biologist
during the U.S. Fish and Wildlife Service consultation and permitting process. The
following Orders can help airports reduce risks from hazardous species by allowing
private citizens to control hazardous species off airport properties without the need for a
Federal depredation permit.
3.8.1 Standing Depredation Orders.
3.8.1.1 Federal law allows people to protect themselves and their property from
damage caused by migratory birds. Provided no effort is made to kill or
capture the birds, a depredation permit is not required to merely scare or
herd depredating migratory birds other than endangered or threatened
species or bald or golden eagles (50 CFR 21.41).
3.8.1.2 In addition, certain species of migratory birds may be mitigated without a
federal permit under specific circumstances, many of which relate to
agricultural situations. The following Standing Depredation Orders have
applicability near airports:
• 50 CFR § 21.49- Control Order for Resident Canada Geese at Airports
and Military Airfields.
• 50 CFR § 21.50- Depredation Order for Resident Canada Geese Nests
and Eggs.
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• 50 CFR § 21.43 - Depredation Order for Blackbirds, Cowbirds, Crows,
Grackles, and Magpies.
• 50 CFR § 21.54 - Control Order for Muscovy Ducks in the United
States.
• 50 CFR § 21.55 - Control Order for Invasive Migratory Birds in
Hawaii.
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CHAPTER 4. RECOMMENDED PROCEDURES FOR THE FAA, AIRPORT OPERATORS
AND OTHER GOVERNMENT ENTITIES REGARDING OFF -AIRPORT ATTRACTANTS
4.1 FAA Notification and Review of Proposed Land -Use Practice Changes in the
Vicinity of Public -Use Airports.
4.1.1 For projects that are located within 5 miles of the airport's aircraft operations area, the
FAA may review development plans, proposed land -use changes, operational
changes, major federal actions or wetland mitigation plans to determine if such
changes increase risk to airport safety by attracting hazardous wildlife on and around
airports. The FAA is not a permitting agency for land use modifications that occur off
airport properties, therefore, such reviews are typically initiated by state or federal
permitting agencies seeking FAA input on new or revised permits. Each of the land
uses listed in Chapter 2 of this AC has the potential to pose a risk to airport operations
when they are located within the separation distances provided in Paragraphs 1.2
through 1.4.
4.1.2 Off -site land use modifications near airports may include an assessment of risk for
facilities and land -use changes and, if necessary, mitigation strategies that may reduce
risk to an acceptable level. However, the FAA recognizes that individual facilities or
land -use modifications may present a range of attractants to different species,
resulting in varying levels of risk. Therefore, the FAA considers each proposal on a
case -by -case basis.
4.1.3 The FAA analyzes each land -use modification or new facility proposal prior to its
establishment or any significant planned changes to design or operations that may
increase the risk level. As part of a review, the FAA considers several factors that
include, but are not limited to:
1. Type of attractant;
2. Size of attractant;
3. Location/distance of attractant from airport;
4. Design (e.g., construction, material, mitigation techniques employed into design);
5. Operation (e.g., cleanliness, constancy/ volume of use, seasonality, time of day);
6. Monitoring protocols (e.g., frequency, documentation, evaluation, species
identification and number thresholds that trigger actions of communication or
mitigation, baseline wildlife data);
7. Mitigation protocols (e.g., responsibilities, methods, intensity, pre -determined
objectives, documentation, evaluation); and
8. Communication protocols to airport and/ or air traffic control tower;
4.1.4 The review of these factors may result in FAA recommended additions or
modifications to a conditional use permit that allows the permitting agency to track
compliance with the permittee obligations. Such conditions placed within a permit
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may involve a comprehensive outline and recognition of individuals responsible for
monitoring, communication, and mitigation measures if certain action thresholds are
met. Action thresholds are defined in this instance as those pre -determined parameters
(e.g., number, location, behavior, time of day) of specific hazardous species that
would trigger a mitigation response. Additionally, baseline data should be used to
determine the effect, if any, on wildlife populations at the proposed off -site location
and/or at the airport.
4.1.5 Baseline data may need to be collected, depending on the existence of useful data and
timeline for site modification. If, after taking into account the factors above, FAA
determines that a facility poses a significant risk to airport safety, FAA will object to
its establishment or renewal.
4.1.6 For projects that are located within 5 miles of the airport's aircraft operations area, the
FAA Airport District Office may review development plans, proposed land -use
changes, operational changes, major federal actions or wetland mitigation plans to
determine if such changes present potential wildlife hazards to aircraft operations.
The FAA considers sensitive airport areas as those that lie under or next to approach
or departure airspace. This brief examination should indicate if further investigation is
warranted.
4.1.7 Where a Qualified Airport Wildlife Biologist has conducted a further study to
evaluate a site's compatibility with airport operations, the FAA may use the study
results to make a determination.
4.2 Waste Management Facilities.
4.2.1 Notification of New/Expanded Project Proposal.
4.2.1.1 49 U.S.C. § 44718(d), prohibits the construction or establishment of new
municipal landfills within 6 miles of certain public -use airports, when both
the airport and the landfill meet specific conditions. See Paragraph 2.2 of
this guidance for a more detailed discussion of these restrictions.
4.2.1.2 The Environmental Protection Agency (EPA) requires any landfill
operator proposing a new or expanded waste disposal operation within 5
miles of a runway end to notify the appropriate FAA Regional Airports
Division Office and the airport operator of the proposal. See 40 CFR §
258, Criteria for Municipal Solid Waste Landfills, Section 258.10, Airport
Safety. The EPA also requires owners or operators of new landfill units, or
lateral expansions of existing MSWLF landfill units, that are located
within 10,000 feet of any airport runway end used by turbine -powered
aircraft, or within 5,000 feet of any airport runway end used only by
piston -type aircraft, to demonstrate successfully that such units are not
hazards to aircraft. (See 4.3.2 below.)
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4.2.1.3 When new or expanded municipal landfills are being proposed near
airports, landfill operators must notify the airport operator and the FAA of
the proposal as early as possible pursuant to 40 CFR § 258.
4.2.1.4 The FAA discourages the development of waste disposal and other
facilities, discussed in Chapter 2, located within the separation criteria
specified in Paragraphs 1.2 through 1.4. To show that a waste -handling
facility sited within the separations identified in Paragraphs 1.2 through
1.4 does not attract hazardous wildlife and does not threaten aviation, the
developer must establish the facility will not handle putrescible material
other than that as outlined in 2.2.4. The FAA recommends against any
facility other than those outlined in 2.2.4 (enclosed transfer stations). The
FAA will use this information to determine if the facility will be a hazard
to aviation.
4.3 Other Land -Use Practice Changes.
4.3.1 The FAA encourages operators of public -use airports who become aware of proposed
land use practice changes that may attract hazardous wildlife within 5 miles of their
airports to notify their assigned Airport Certification Safety Inspector or Airports
District Office Program Manager. The FAA also encourages proponents of such land
use changes to notify the FAA as early in the planning process as possible. Advanced
notice affords the FAA an opportunity (1) to evaluate the effect of a particular land -
use change nn aviation safety and (2) to support efforts by the airport sponsor to
restrict the use of land next to or near the airport to uses that are compatible with the
airport.
4.3.2 The airport operator, project proponent, or land -use operator may use FAA Form
7460-1, Notice of Proposed Construction or Alteration, or other suitable documents
similar to FAA Form 7460-1 to notify the appropriate FAA Regional Airports
Division Office. Project proponents can contact the appropriate FAA Regional
Airports Division Office for assistance with the notification process prior to
submitting Form 7460-1.
4.3.3 It is helpful if the notification includes a 15-minute quadrangle map of the area
identifying the location of the proposed activity. The land -use operator or project
proponent should also forward specific details of the proposed land -use change or
operational change or expansion. In the case of solid waste landfills, the information
should include the type of waste to be handled, how the waste will be processed, and
final disposal methods.
4.3.4 Airports that have Received Federal Assistance.
Airports that have received Federal assistance are required under their grant assurances
to take appropriate actions to restrict the use of land next to or near the airport to uses
that are compatible with normal airport operations. See Grant Assurance 21. The FAA
recommends that airport operators oppose off -airport land -use changes or practices, to
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the extent practicable, within the separations identified in Paragraphs 1.2 through 1.4,
which may attract hazardous wildlife. Failure to do so may lead to noncompliance with
applicable grant assurances. The FAA will not approve the placement of airport
development projects pertaining to aircraft movement in the vicinity of hazardous
wildlife attractants without appropriate mitigating measures. Increasing the intensity of
wildlife control efforts is not a substitute for preventing, eliminating or reducing a
proposed wildlife hazard. Airport operators should identify hazardous wildlife
attractants and any associated wildlife hazards during any planning process for airport
development projects.
4.4 Coordination to Prevent Creation of New Off -Airport Hazardous Wildlife
Attractants.
Airport operators should work with local and regional planning and zoning boards to be
aware of proposed land -use changes, or modification of existing land uses, that could
create hazardous wildlife attractants within the separations identified in Paragraphs 1.2
through 1.4. Pay particular attention to proposed land uses involving creation or
expansion of wastewater treatment facilities, development of wetland mitigation sites,
or development or expansion of dredge spoil containment areas. At the very least, it is
recommended that airport operators are on the notification list of the local planning
board or equivalent review entity for all communities located within 5 miles of the
airport, so they will receive notification of any proposed project and have the
opportunity to review it for attractiveness to hazardous wildlife. This may be
accomplished through one or more of the following:
4.4.1 Site -specific Criteria.
The airport should establish site -specific criteria for assessment of land uses attractive
to hazardous wildlife and locations that would be of concern based on wildlife strikes
and on wildlife abundance and activity at the airport and in the local area. These criteria
may be more selective, but should not be less restrictive than this guidance.
4.4.2 Outreach.
Airports should actively seek to provide educational information and/ or provide input
regarding local development, natural resource modification or wildlife -related concerns
that affect wildlife hazards and safe air travel.
4.4.2.1 External Outreach.
Airport operators and a Qualified Airport Wildlife Biologist should
consider outreach to local planning and zoning organizations on land uses
of concern or to local organizations responsible for natural resource
management (including wildlife, wetlands, and parks.) Airports should
also consider developing and distributing position letters and educational
materials on airport -specific concerns regarding wildlife hazards, wildlife
activity and attraction. Finally, airports should provide foiinal comments
on local procedures, laws, ordinances, plans, and regulatory actions such
as permits related to land uses of concern.
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4.4.2.2 Internal Outreach.
Airports should consider developing and distributing position letters and
educational materials on airport -specific concerns regarding species
identification and mitigation procedures, wildlife hazards, wildlife activity
and attraction to employees and personnel with access to the aircraft
operations area.
4.5 Coordination on Existing Off -Airport Hazardous Wildlife Attractants.
Airports are encouraged to work with landowners and managers to cooperatively
develop procedures to monitor and manage hazardous wildlife attraction. If applicable,
these procedures may include:
1. Conducting a wildlife hazard site visit by a wildlife biologist meeting the
qualification requirements of Advisory Circular 150/5200-36, Qualifications for
Wildlife Biologist Conducting Wildlife Hazard Assessments and Training
Curriculums for Airport Personnel Involved in Controlling Wildlife Hazards on
Airports
2. Conducting regular, standardized, wildlife monitoring surveys;4
3. Establishing threshold numbers of wildlife which would trigger certain actions
and/or communications;
4. Establishment of procedures to deter or remove hazardous wildlife.
4.6 Prompt Remedial Action.
For attractants found on and off airport property, and with landowner or manager
cooperation, Part 139 certificated airports must take immediate action in accordance
with their Airport Certification Manual and the requirements of Part 139.337, to
alleviate wildlife hazards whenever they are detected. It is also recommended that non -
certificated airports take immediate action to alleviate wildlife hazards whenever they
are detected. In addition, airports should take prompt action to identify the source of
attraction and cooperatively develop procedures to mitigate and monitor the attractant.
For Part 139 Certificated airports, immediate actions are required in accordance
with 139.337(a).
4.7 FAA Assistance.
If there is a question on the implementation of any of the guidance in this section,
contact the FAA Regional Airports Division for assistance.
'Recommended survey protocols can be found in AC 150/5200-38, Protocol for the Conduct and Review of Wildlife
Hazard Site Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans, and DeVault, T.L., B.F.
Blackwell, and J.L. Belant, eds. 2013. Wildlife in Airport Environments: Preventing Animal Aircraft Collisions
through Science -Based Management. Johns Hopkins University Press, Baltimore, MD, USA. 181 pp.
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4.7.1 Airport Documentation Procedures.
Airports should document on -site and off -site wildlife attractants as part of their
"Wildlife Hazard Management Plan Annual Review," "Wildlife Hazard Management
Plan Review Following a Triggering Event," and the airport's Continual Monitoring
Annual Report (as outlined in FAA Advisory Circular 150/5200-38). As a best
management practice, airports may choose to keep a log to track contacts from
landowners or managers, permitting agencies, or other entities concerning land uses
near the airport.
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APPENDIX A. DEFINITIONS OF TERMS USED IN THIS ADVISORY CIRCULAR
A.1 General.
This appendix provides definitions of terms used throughout this AC.
1. Air operations area. Any area of an airport used or intended to be used for
landing, takeoff, or surface maneuvering of aircraft. An air operations area includes
such paved areas or unpaved areas that are used or intended to be used for the
unobstructed movement of aircraft in addition to its associated runway, taxiways, or
apron.
2. Airport operator. The operator (private or public) or sponsor of a public -use
airport.
3. Approach or departure airspace. The airspace, within 5 statute miles of an
airport, through which aircraft move during landing or takeoff.
4. Bird balls. High -density plastic floating balls that can be used to cover ponds and
prevent birds from using the sites.
5. Certificate holder. The holder of an Airport Operating Certificate issued under 14
C.F.R. Part 139.
6. Construct a new municipal landfill. To begin to excavate, grade land, or raise
structures to prepare a municipal solid waste landfill as permitted by the appropriate
regulatory or permitting agency.
7. Detention ponds. Storm water management ponds that hold storm water for short
periods of time, a few hours to a few days.
8. Establish a new municipal landfill. When the first load of putrescible waste is
received on -site for placement in a prepared municipal solid waste landfill.
9. Fly ash. The fine, sand -like residue resulting from the complete incineration of an
organic fuel source. Fly ash typically results from the combustion of coal or waste
used to operate a power generating plant.
10. General aviation aircraft. Any civil aviation aircraft operating under 14 CFR Part
91.
11. Hazardous wildlife. Species of wildlife (birds, mammals, reptiles), including feral
and domesticated animals, not under control that may pose a direct hazard to
aviation (i.e., strike risk to aircraft) or an indirect hazard such as an attractant to
other wildlife that pose a strike hazard or are causing structural damage to airport
facilities (e.g., burrowing, nesting, perching).
12. Municipal Landfill. A publicly or privately owned discrete area of land or an
excavation that receives household waste and that is not a land application unit,
surface impoundment, injection well, or waste pile, as those terms are defined under
40 CFR § 257.2. A municipal landfill may receive other types wastes, such as
commercial solid waste, non -hazardous sludge, small -quantity generator waste, and
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2/21/2020 AC 150/5200-33C
industrial solid waste, as defined under 40 CFR § 258.2. A municipal landfill can
consist of either a stand-alone unit or several cells that receive household waste.
13. New municipal landfill. A municipal solid waste landfill that was established or
constructed after April 5, 2001.
14. Piston -powered aircraft. Fixed -wing aircraft powered by piston engines.
15. Piston -use airport. Any airport that does not sell Jet -A fuel for fixed -wing turbine -
powered aircraft, and primarily serves fixed -wing, piston -powered aircraft.
Incidental use of the airport by turbine -powered, fixed -wing aircraft would not
affect this designation. However, such aircraft should not be based at the airport.
16. Public agency. A state or political subdivision of a state, a tax -supported
organization, or an Indian tribe or pueblo (49 U.S.C. § 47102(19)).
17. Public airport. An airport used or intended to be used for public purposes that is
under the control of a public agency; and of which the area used or intended to be
used for landing, taking off, or surface maneuvering of aircraft is publicly owned
(49 U.S.C. § 47102(20)).
18. Public -use airport. An airport used or intended to be used for public purposes
where the area used or intended to be used for landing, taking off, or surface
maneuvering of aircraft may be under the control of a public agency or privately
owned and used for public purposes (49 U.S.C. § 47102(21)).
19. Putrescible waste. Solid waste that contains organic matter capable of being
decomposed by micro-organisms and of such a character and proportion as to be
capable of attracting or providing food for birds (40 CFR §257.3-8).
20. Putrescible-waste disposal operation. Landfills, garbage dumps, underwater waste
discharges, or similar facilities where activities include processing, burying, storing,
or otherwise disposing of putrescible material, trash, and refuse.
21. Retention ponds. Storm water management ponds that hold water for more than 48
hours.
22. Risk. Risk is the relationship between the severity and probability of a threat. It is
the product of hazard level and abundance in the critical airspace, and is thus
defined as the probability of a damaging strike with a given species.
23. Runway protection zone. An area off the runway end to enhance the protection of
people and property on the ground (see AC 150/5300-13). The dimensions of this
zone vary with the airport design, aircraft, type of operation, and visibility
minimum.
24. Scheduled air carrier operation. Any common carriage passenger -carrying
operation for compensation or hire conducted by an air carrier or commercial
operator for which the air carrier, commercial operator, or their representative offers
in advance the departure location, departure time, and arrival location. It does not
include any operation that is conducted as a supplemental operation under 14 CFR
Part 119 or as a public charter operation under 14 CFR Part 380 (14 CFR § 119.3).
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2/21/2020 AC 150/5200-33C
25. Sewage sludge. Any solid, semi -solid, or liquid residue generated during the
treatment of domestic sewage in a treatment works. Sewage sludge includes, but is
not limited to, domestic septage; scum or solids removed in primary, secondary, or
advanced wastewater treatment process; and a material derived from sewage sludge.
Sewage does not include ash generated during the firing of sewage sludge in a
sewage sludge incinerator or grit and screenings generated during preliminary
treatment of domestic sewage in a treatment works. (40 CFR § 257.2)
26. Sludge. Any solid, semi -solid, or liquid waste generated form a municipal,
commercial or industrial wastewater treatment plant, water supply treatment plant,
or air pollution control facility or any other such waste having similar characteristics
and effect. (40 CFR § 257.2).
27. Solid waste. Any garbage, refuse, sludge, from a waste treatment plant, water
supply treatment plant or air pollution control facility and other discarded material,
including, solid liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from community
activities, but does not include solid or dissolved materials in domestic sewage, or
solid or dissolved material in irrigation return flows or industrial discharges which
are point sources subject to permits under section 402 of the Clean Water Act, or
source, special nuclear, or by product material as defined by the Atomic Energy Act
of 1954.(40 CFR § 257.2).
28. Turbine -powered aircraft. Aircraft powered by turbine engines including turbojets
and turboprops but excluding turbo -shaft rotary -wing aircraft.
29. Turbine -use airport. Any airport that sells fuel for fixed -wing turbine -powered
aircraft.
30. Wastewater treatment facility. Any devices and/or systems used to store, treat,
recycle, or reclaim municipal sewage or liquid industrial wastes, including publicly
owned treatment works, as defined by Section 212 of the Clean Water Act. This
definition includes any pretreatment involving the reduction of the amount of
pollutants, the elimination of pollutants, or the alteration of the nature of pollutant
properties in wastewater prior to or in lieu of discharging or otherwise introducing
such pollutants into a publicly owned treatment system. (See 40 CFR § 403.3 (q),
(r), & (s)).
31 Wildlife. Any wild animal, including without limitation any wild mammal, bird,
reptile, fish, amphibian, mollusk, crustacean, arthropod, coelenterate, or other
invertebrate, including any part, product, egg, or offspring thereof. 50 CFR § 10.12.
As used in this AC, wildlife includes feral animals and domestic animals out of the
control of their owners (14 CFR Part 139, Certification of Airports).
32. Wildlife attractants. Any human -made structure, land -use practice, or human -
made or natural geographic feature that can attract or sustain hazardous wildlife
within the landing or departure airspace or the airport's aircraft operations area.
These attractants can include architectural features, landscaping, waste disposal
sites, wastewater treatment facilities, agricultural or aquaculture activities, surface
mining, or wetlands.
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2/21/2020 AC 150/5200-33C
33. Wildlife hazard. A potential for a damaging aircraft collision with wildlife on or
near an airport.
34. Wildlife strike. A wildlife strike is deemed to have occurred when:
a. A strike between wildlife and aircraft has been witnessed;
b. Evidence or damage from a strike has been identified on an aircraft;
c. Bird or other wildlife remains, whether in whole or in part, are found:
i. Within 250 feet of a runway centerline or within 1,000 feet of a runway end
unless another reason for the animal's death is identified or suspected,
unless another reason for the animal's death is identified or;
ii. On a taxiway or anywhere else on or off airport that there is reason to
believe was the result of a strike with an aircraft.
d. The presence of birds or other wildlife on or off the airport had a significant
negative effect on a flight (i.e., aborted takeoff, aborted landing, high-speed
emergency stop, aircraft left pavement area to avoid collision with animal).
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2/21/2020 AC 150/5200-33C
APPENDIX B. ADDITIONAL RESOURCES
B.1 Regulations
• 14 CFR § 139.337, Wildlife Hazard Management
• 40 CFR § 258, Criteria for Municipal Solid Waste Landfills
B.2 Advisory Circulars
• AC 150/5200-32, Reporting Wildlife Aircraft Strikes
• AC 150/5200-33, Hazard Wildlife Attractants on or Near Airports
• AC 150/5200-34, Construction or Establishment of New Landfills Near Public
Airports
• AC 150/5200-36, Qualifications for Wildlife Biologist Conducting Wildlife Hazard
Assessments and Training Curriculums for Airport Personnel Involved in
Controlling Wildlife Hazards on Airports
• AC 150/5200-38, Protocol for the Conduct and Review of Wildlife Hazard Site
Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans
• AC 150/5220-25, Airport Avian Radar Systems
• AC 150/5210-24, Airport Foreign Object Debris (FOD) Management
B.3 Certification Alerts
• Certalert No. 97-09, Wildlife Hazard Management Plan Outline (11/17/1997)
• Certalert No. 98-05, Grasses Attractive To Hazardous Wildlife (9/21/1998)
• Certalert No. 06-07, Requests by State Wildlife Agencies to Facilitate and
Encourage Habitat for State Listed Threatened and Endangered Species and
Species of Special Concern on Airports (11/21/2006)
• Certalert No. 13-01, Federal and State Depredation Permit Assistance (1/30/2013)
• Certalert No.14-01, Seasonal Mitigation of Hazardous Species at Airports:
Attention to Snowy Owls (2/26/2014)
• Certalert No. 16-03, Recommended Wildlife Exclusion Fencing (8/2016)
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2/21/2020 AC 150/5200-33C
B.4 Airport Cooperative Research Program Reports
These, and other wildlife / aviation reports, are available from the Transportation
Research Board of the National Academies (TRB) at
http://www.trb.Org/Publications/Publications.aspx.
• ACRP Research Report 198: Wetland Mitigation, Volume 2, A Guidebook for
Airports (2019)
• ACRP Synthesis 92: Airport Waste Management and Recycling Practices (2018)
• ACRP Research Report 174: Guidebook and Primer (2018)
• ACRP Report 122: Innovative Airport Responses to Threatened / Endangered
Species (2015)
• ACRP Report 125: Balancing Airport Stormwater and Bird Hazard Management
(2015)
• ACRP Report 145: Applying an SMS Approach to Wildlife Hazard Management
(2015)
• ACRP Synthesis 39 Report: Airport Wildlife Population Management (2013)
• ACRP Synthesis 52 Report: Habitat Management to Deter Wildlife at Airports
(2014)
• ACRP Synthesis 23 Report: Bird Harassment, Repellent, and Deterrent Techniques
for Use on and Near Airports (2011)
• ACRP Report 32: Guidebook for Addressing Aircraft/Wildlife Hazards at General
Aviation Airports (2010)
B.5 Manuals
• Wildlife Hazard Management at Airports - A Manual for Airport Personnel (2005)
B.6 Orders
• 50 CFR § 21.49, Control Order for Resident Canada Geese at Airports and Military
Airfields
• 50 CFR § 21.50, Depredation Order for Resident Canada Geese Nests and Eggs
• 50 CFR § 21.43, Depredation Order for Blackbirds, Cowbirds, Crows, Grackles,
and Magpies
• 50 CFR § 21.54, Control Order for Muscovy Ducks in the United States
• 50 CFR § 21.55, Control Order for Invasive Migratory Birds in Hawaii
B-2
Advisory Circular Feedback
If you find an error in this AC, have recommendations for improving it, or have suggestions for
new items/subjects to be added, you may let us know by (1) mailing this form to Manager,
Airport Safety and Operations Division, Federal Aviation Administration ATTN: AAS-300, 800
Independence Avenue SW, Washington DC 20591 or (2) faxing it to the attention of AAS-300 at
(202) 267-5257.
Subject: AC 150/5200-33C Date:
Please check all appropriate line items:
❑ An error (procedural or typographical) has been noted in paragraph
on page
❑ Recommend paragraph on page be changed as follows:
❑ In a future change to this AC, please cover the following subject:
(Briefly describe what you want added.)
❑ Other comments:
❑ I would like to discuss the above. Please contact me at (phone number, email address).
Submitted by: Date:
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25, 2023
SUBJECT: Special Project Grant Status Update - Friends of the Children
RECOMMENDED MOTION:
N/A
BACKGROUND AND POLICY IMPLICATIONS:
During the FY23 video lottery allocation discussion, the Board initiated three special project
grants. One of those grantees, Friends of the Children, will present at the January 25 board
meeting to provide the Board with a mid -year status update on their projects and
priorities.
BUDGET IMPACTS:
Special project grants are made available through the Video Lottery Fund, which is
supported by state lottery proceeds. These grants were budgeted for FY 2022-23. Three
grantees were awarded $20,000 each, half of which is paid upon signature of the
agreement, with the second half initiated by completion of the mid -year status update.
ATTENDANCE:
Stephanie Robinson, Administrative Analyst
Rachel Cardwell, Friends of the Children
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25, 2023
SUBJECT: Special Project Grant Status Update - Deschutes Collaborative Forest Project
RECOMMENDED MOTION:
N/A
BACKGROUND AND POLICY IMPLICATIONS:
During the FY23 video lottery allocation discussion, the Board initiated three special project
grants. One of those grantees, Deschutes Collaborative Forest Project, will present at the
January 25 board meeting to provide the Board with a mid -year status update on their
projects and priorities.
BUDGET IMPACTS:
Special project grants are made available through the Video Lottery Fund, which is
supported by state lottery proceeds. These grants were budgeted for FY 2022-23. Three
grantees were awarded $20,000 each, half of which is paid upon signature of the
agreement, with the second half initiated by completion of the mid -year status update.
ATTENDANCE:
Stephanie Robinson, Administrative Analyst
Jacob Fritz, Deschutes Collaborative Forest Project program coordinator
Sally Russell, Deschutes Collaborative Forest Project vice -chair
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25, 2023
SUBJECT: Special Project Grant Status Update - Deschutes Basin Water Collaborative
RECOMMENDED MOTION:
N/A
BACKGROUND AND POLICY IMPLICATIONS:
During the FY23 video lottery allocation discussion, the Board initiated three special project
grants. One of those grantees, Deschutes Basin Water Collaborative, will present at the
January 25 board meeting to provide the Board with a mid -year status update on their
projects and priorities.
BUDGET IMPACTS:
Special project grants are made available through the Video Lottery Fund, which is
supported by state lottery proceeds. These grants were budgeted for FY 2022-23. Three
grantees were awarded $20,000 each, half of which is paid upon signature of the
agreement, with the second half initiated by completion of the mid -year status update.
ATTENDANCE:
Stephanie Robinson, Administrative Analyst
Scott Aycock, COIC Community & Economic Development director
Lisa Seales, Deschutes River Conservancy programs manager
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25, 2023
SUBJECT: Planning Division Work Plan Update / Long Range Planning / FY 2022-2023
RECOMMENDED MOTION:
N/A
BACKGROUND AND POLICY IMPLICATIONS:
The adopted Community Development Department (CDD) FY 2022-23 Work Plan contains
several discretionary long range planning projects varying in complexity and anticipated
staff effort. This meeting is intended to update the Board of County Commissioners (Board)
on upcoming work plan projects and solicit any comments and revisions. The purpose is to
ensure that long-range staff, which has emerging capacity following completion of prior
projects, implements the Board's priorities within staff's available resources.
On January 11, 2023 the Board identified the Mule Deer Winter Range Inventory update
and In -Conduit Hydroelectric code update as top priorities. This meeting is intended to
identify priorities among the remining discretionary items from the FY 2022-23 Work Plan.
BUDGET IMPACTS:
None
ATTENDANCE:
Will Groves, Planning Manager
,v� ES
COMMUr`t ITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Will Groves, Planning Manager
Peter Gutowsky, AICP, Director
DATE: January 25, 2023
SUBJECT: Planning Division Work Plan Update / Long Range Planning / FY 2022-2023
I. WORK PLAN DIRECTION
The adopted Community Development Department (CDD) FY 2022-23 Work Plan contains several
discretionary long range planning projects varying in complexity and anticipated staff effort.' This
memorandum is intended to update the Board of County Commissioners (Board) on upcoming work plan
projects and solicit any comments and revisions. The purpose is to ensure that long-range staff, which
has emerging capacity following completion of prior projects, implements the Board's priorities within
staff's available resources.2
In October 2022, the Board identified priorities for Long Range projects from the Work Plan for late 2022.
Tables 1-3, starting on page 2, summarize projects that are completed, ongoing, and yet to be initiated.
On January 11, 2023, the Board identified the Mule Deer Winter Range Inventory update and In -Conduit
Hydroelectric code update as top priorities. This meeting is intended to identify priorities among the
remining discretionary items from the FY 2022-23 Work Plan.
Staff seeks Board direction on prioritizing the following projects:
• Non -initiated Long Range Planning Projects listed in Table 3, below
11. BACKGROUND
Each spring, CDD prepares an annual work plan describing proposed projects for the coming fiscal year.
A review of the draft work plan provides the Planning Commission, Historic Landmarks Commission,
County Administration, CDD's customers and partner agencies, and the Board the opportunity to provide
1 https://www.deschutes.org/sites/default/files/fileattachments/community development/page/110/2022-
23 work plan annual report - final.pdf. Pages 35-38.
2 The Long Range Planning Section consists of two Senior Planners, a Senior Transportation Planner (FTE allocated across
transportation, current and long range planning duties), and two Associate Planners.
input, including additions, modifications and possible re -prioritization. The work plan describes the most
important objectives and proposed projects in each CDD division based on:
1. Board annual goals and policies;
2. Carry-over projects from current or prior years;
3. Changes in state law;
4. Grants/funding sources; and
5. Public comments.
It also serves as the context within which new projects that arise during the course of the year are
prioritized and undertaken. The Planning Division Work Plan consistently generates public interest.
III. COMPLETED PLANNING PROJECTS
Table 1 lists completed projects identified in the FY 2022-23 work plan.
Table 1 - Completed Planning Projects
Project
Summary
Status
H64079/
Affordable
Housing Pilot
Project
Amendments to the Deschutes County Comprehensive
Plan and Zoning Map to change the designation of a
property to Bend Urban Growth Area and Urbanizable
Area (UA) District, respectively. Amendment allows the
City of Bend to annex, rezone and approve urban
dPv&innment of the future Parksirle Place affordable
housing development.
Completed. Board adopted City
of Bend Urban Growth Boundary
(UGB) amendment in June. City
Council adopted similar
amendments in July 2022.
Historic
Preservation
(CLG Grant)
Every 24 months, the State Historic Preservation Office
(SHPO) offers matching grants to counties that have been
"certified" as historic preservation partners with both the
state and federal governments. Deschutes County is a
Certified Local Government (CLG). Staff will apply for the
next round of grants (2023-2024) in February, which
includes coordinating with the Historic Landmarks
Commission and City of Sisters.
Completed/Ongoing. Grant
applications are due February 24,
2023.
Historic
Po/icy and
Procedures
Manual
Staff prepared a Historic Landmarks Commission Policies
and Procedures Manual. It is a reference guide describing
the Commission's purpose, authorities, roles, decision
making process, applicable laws/regulations and public
meeting requirements.
Completed. Board reviewed and
approved the manual in
September.
Historic
Preservation
Strategic
Plan
Staff prepared a Deschutes County and City of Sisters
Historic Preservation Strategic P/an 2022-2027. It
provides a framework for shaping the county and City of
Sisters' preservation programs over the next five years
and creates a blueprint for allocating CLG grant funding
Completed. Board reviewed and
approved the strategic plan in
September.
Psi/ocybin
Time, Place,
and Manner
(TPM)
Amendments
Measure 109, the Oregon Psilocybin Services Act, was
passed by the voters of Oregon, allowing manufacture,
delivery, and administration of psilocybin at supervised,
licensed facilities beginning on January 2, 2023. Pursuant
to Measure 109, the county adopted ordinances that
impose reasonable TPM regulations on the location of
and operation of psilocybin businesses.
Completed. Board completed
second reading of TPM
amendment on January 4, 2023.
These ordinances will be
effective in April 2023
IV ONGOING PLANNING PROJECTS
-2-
Staff is currently processing or coordinating several land use projects.
Table 2 - Ongoing Planning Projects
Project
Summary
Comments
Amateur Radio
Code Updates
Based on Board direction and in coordination with the
Deschutes County Building Division, Oregon
Department of Aviation, and amateur radio operators,
staff has initiated legislative updates to the amateur
radio facilities.
Ongoing. Planning Commission
will conduct a public hearing to
consider legislative amendments
to streamline and clarify the
review process for Amateur
Radio facilities on January 12.
Applicant-
initiated
Nonresource
Land
Amendments
Staff is processing four applicant -initiated Plan
Amendment and Zone Change applications to change
Exclusive Farm Use (EFU) zoning. One is set for Board
hearing in January 2023. One has received Hearings
Officer review and will be brought to the Board in early
2023. The other two are in incomplete status and are
anticipated for hearings in 2023.
Ongoing. Deschutes County has a
long-standing policy to timely
process applicant -initiated plan
amendment, zone changes,
and/or text amendments. These
plan amendments and zone
changes require significant
resources and are becoming
increasingly common.
City of Bend
Coordination
Coordinate with City of Bend on growth management
issues, including technical analyses related to housing
and employment needs.
Ongoing. Staff is coordinating
with city staff regarding HB 3318,
Stevens Road Tract. In 2023, the
City of Bend will initiate an
application to expand its urban
growth boundary to include this
property.
City ofLaPine
Coordination
Participate with Property Management and the City of
La Pine to update and amend the County owned
Newberry Neighborhood comprehensive plan
designations, master plan and implementing
regulation.
Ongoing. Staff is coordinating
with the Property Manager and
Strategic Initiatives Manager.
City of
Redmond
Coordination
Coordinate with City of Redmond to implement their
Comprehensive Plan update.
Ongoing. Staff is coordinating
with the City of Redmond
regarding their plans to relocate
and expand their wastewater
treatment plant.
City of Sisters
Participate in the implementation of Sisters Country
Vision Plan and City of Sisters Comprehensive Plan
Update.
Ongoing. Staff participates in
regular coordination meetings
with the Sisters Vision
Implementation Team.
Comprehensiv
e Plan Update
As directed by the Board, an updated Comprehensive
Plan needs to incorporate community input to craft
new and updated goals and policies regarding
agriculture, forestry, housing, recreation, natural
resources, natural hazards, economic development,
and transportation. This updated community vision is
an opportunity to carefully discuss and balance
community values in the face of upcoming
opportunities and challenges.
Ongoing. Staff, in coordination
with the consultant, is conducting
community conversations,
stakeholder meetings, and open
houses throughout Deschutes
County. The focus in early 2023 is
to work with the Planning
Commission to consolidate
community feedback into
updated draft goals and policies.
Coordination
Projects
o Destination Resort Overnight Lodging Unit Annual
Reporting
Ongoing. Staff coordinates with
relevant stakeholders for these
-3-
Project
Summary
Comments
o Marijuana Annual Reporting / Inspections
o Portland State University (PSU) Annual Population
Estimate
tasks and reports news, updates,
and results to the Board
annually.
Dark Skies
The Work Plan identifies updating the Outdoor Lighting
Control Ordinance (aka Dark Skies Ordinance). As both
the Planning Commission and Board have expressed
support for revisiting the County's existing Outdoor
Lighting ordinance, staff is preparing a report outlining
opportunities and challenges.
Ongoing. This report will be
presented to the Board in early
2023.
Growth
Management
Committees
Coordinate and/or participate on Deschutes County
Bicycle and Pedestrian Committee (BPAC), Project
Wildfire, and Deschutes County Mitigation and
Enhancement Committee. BPAC is involved in the
County'sTransportation System (TSP) Plan Update, and
Sisters Country Expansion Concept Plan.
Ongoing. These meetings occur
monthly with the exception of
the Mitigation and Enhancement
Committee, which is an annual
meeting.
Housekeeping
Amendments-
Ear/ 2023
Y
Initiate housekeeping amendments to ensure County
Code complies with State law.
Ongoing. A Public Hearing will be
conducted before the Planning
Commission in January 2023,
prior to a hearing before the
Board
Road Naming
Process Road Naming requests associated with certain
types of development on a semi-annual basis.
Ongoing.
Rural
Accessory
Dwelling Units
(SB 391)
The Oregon Legislature adopted Senate Bill (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.
Ongoing. Based on Board
direction, Staff is monitoring the
State 2023 Legislative session for
changes to ADU or associated fire
hardening requirements, prior to
proceeding with local
implementation.
Sage Grouse
Coordination
Participate as a cooperating agency with the Bureau of
Land Management (BLM) to evaluate alternative
management approaches to contribute to the
conservation of the Greater Sage -grouse and
sagebrush habitats on federal lands.
Ongoing. Staff will continue to
represent the County at multi -
agency coordination meetings as
part of the BLM's Greater Sage
Grouse planning process.
Short Term
Rentals
Based on Board direction, Staff is producing a
summary of opportunities and challenges associated
with residential short term residential rentals.
Ongoing. This summary will
presented to the Board in early
2023.
Transportation
Growth
Management
(TGM) Grant
CDD received a $75,000 TGM grant to:
o Update the Tumalo Community Plan's bike,
pedestrian, and transit elements; and
o Implement the rural trails portion of the Sisters
Country Vision Action Plan.
Ongoing. The consultant has
prepared draft concepts for both
items and shared them with the
respective stakeholder advisory
committees. Staff will then begin
the process to adopt the TGM
Tumalo bike/ped/transit
elements into the Tumalo
Community Plan (TCP) and the
process to add the proposed
rural trails to the County TSP map
of bike routes.
-4-
Project
Summary
Comments
Transportation
System Plan
(TSP)20202040
Road Department is funding a $250,000 update to the
TSP.
Ongoing. Consultant has posted
an online story map and draft list
of projects with short description
of project, planning level cost
estimate, and prioritization. The
online site was accepting public
comments received until Dec. 31,
2022. Planning and Road
Department will then review the
comments and determine if any
revisions are needed. Formal
adoption of the TSP, including
policies and the project list, is
expected to begin in early 2023.
Tumalo
Community
P/an
CDD is preparing a 2020-2040 update to the Tumalo
Community Plan (TCP)
o Review Community Vision
o Update tables on basic information for
population, developed lots, and traffic volumes
o Review and revise policy language as needed
based on community input
Ongoing. Staff has held several
open houses and online
presentations on the TCP. Staff
brought forth draft policies at the
most recent open house on
August 22, 2022. Based on public
feedback, staff is revising several
policies. Staff intends to hold
more public outreach and at least
one more open house in Tumalo
prior to beginning Planning
Commission hearings in early
2023.
Wildfire
Mitigation
(SB762J
In 2021, the Oregon Legislature passed SB 762, which
has significant impacts on wildfire mitigation efforts
across all jurisdictions in Oregon. The initial risk map
was made available on June 30, 2022. However, based
on significant concern from citizens and interest
groups through the state, ODF withdrew the initial risk
map to provide more time for additional public
outreach and refinement of risk classification
methodologies. ODF anticipates new risk maps will be
finalized by late fall or early winter 2023.
Ongoing. Staff is monitoring SB
762 and will provide regular
updates relating to forthcoming
revisions and process related to
the Oregon Department of
Forestry's wildfire risk map.
Wildlife
Inventory
Update
In fall 2021, the Board directed staff to initiate a pilot
project add a new mule deer winter range inventory
from the Oregon Department of Fish and Wildfire
(ODFW) to the county's Goal 5 protected resources. The
County's existing mule deer winter range covers
approximately 315,947 acres. ODFW's new inventory
proposes an additional area of 188,132 acres, resulting
in total of 503,979 acres. Incorporating the new
inventory into DCC would require:
o Amending the Comprehensive Plan and zoning
code
o Drafting parcel -specific maps showing properties
affected by the existing and proposed winter range
o Writing extensive findings
o Creating interactive website
o Scheduling public open houses and hearing
Prioritized/Ongoing. This project
was delayed until 2023, at Board
direction, to prioritize TPM
regulations for psilocybin.
Staff is seeking Board
prioritization of this work plan
item as part of this update.
-5-
V. PROJECTS NOT YET INITIATED
Table 3 lists long range planning projects that have not been initiated. It recognizes staffing resource
requirements for each project. They range from "minor" to "significant" as noted below:
• A "minor" rating (2 to 6 months)
• A "moderate" rating (4 to 8 months)
• A "significant" rating (6 to 12 months)
Table 3 - Non -initiated Long Range Planning Projects
Project
Summary
County
Resources
Bend Airport
Update and adopt the Bend Airport Master Plan and amend the
Comprehensive Plan and Development Code to incorporate
implementation measures to allow new airport -related businesses. Initial
coordination meetings with City of Bend were held in late 2022.
Minor to
Moderate
Community
Plans
Engage Terrebonne and Newberry Country residents to determine if
community plans should be updated.
Significant
Legislative
Session
Participate in legislative or rulemaking work groups to shape state laws to
benefit Deschutes County.
Minor
Zoning
Amendments3
• Minor variance 10% lot area rule for farm and forest zoned properties.
(Attachment A)
Minor
• Outdoor Mass Gatherings update. (Attachment B)
Moderate
• Lot Line Adjustments and Re -platting. (Attachment C)
Moderate
• Sign code to become consistent with federal law. (Attachment D)
Moderate
• Accessory structure amendments clarifying they must be built
concurrent with or after the establishment of a primary residence.
Specify allowed facilities (baths, cook tops, wet bar) in residential
accessory structures. (Attachment E)
Moderate
• Section 6409(a) of the Spectrum Act (Attachment F)
Minor
• In conduit hydroelectric generation code amendments (Attachment G)
Prioritized
Significant/
Prioritized
• Repeal Conventional Housing Combining Zone (Attachment H)
Minor
• Define family for unrelated persons HB 2538, Non -familial Individuals
(Attachment I)
Moderate
• Temporary use of recreational vehicles as dwellings (Attachment j)
Moderate
VI. BOARD DIRECTION
Staff seeks Board direction on the priority of the following projects:
• Non -initiated Long Range Planning Projects listed in Table 3
Attachments
A. Minor Variance /10% Lot Area Rule
B. Outdoor Mass Gathering Update
3 Detailed descriptions of Zoning Amendment projects are provided as attachments to this memo, as noted.
-6-
C. Lot Line Adjustment and Replatting
D. Sign Code
E. Accessory Structures
F. Spectrum Act / Section 6409(a)
G. In Conduit Hydroelectric Generation
H. Conventional Housing Combining Zone
I. Family Definition for Unrelated Persons (HB 2538)
J. Temporary Use of Recreational Vehicles
-7-
COMMUNITY DEVELOPMENT
Attachment A- Minor variance 10% lot area rule for farm and forest zoned properties
BACKGROUND & OVERVIEW
Lot line adjustments have been used to circumvent lot -area -based development standards both
under local code and state statute. In 1991, County Code was amended (Ord. 91-038) to limit area
reduction of lots that are currently smaller than the minimum lot size (to a maximum reduction of
ten percent) without a more complicated variance review process.
In the past two decades, state statute (ORS 92.192) has been updated to include protections for lot -
area -based standards that are more robust and nuanced than the County Code provision. Currently
both the state and county protections apply. However, because the County provisions are more of
a "blunt instrument", they cause unexpected problems for operators of large farms. Specifically,
because the minimum lot size for most farm -zoned properties is 80 acres, the transfer of sub-80
acre pieces between neighboring farm operations is needlessly complicated by County Code.
CURRENT PROCESS & CHANGES
Potential text amendments would remove the conflict between DCC and ORS by changing DCC
18.132.025 to exclude farm and forest zone properties from the Countys ten -percent reduction
limitation.
Key Amendment Concerns
Staff Effort/Resources
Medium/Low
Legal Complexity
Low
Implementation Urgency
Medium/Low
COMMUNITY DEVELOPMENT
Attachment B - Outdoor Mass Gathering - Revise County Code to Reflect Changes in State
Statute
BACKGROUND & OVERVIEW
Multi -day festivals have long been held in Oregon and multi -day music festivals became especially
popular in Deschutes County in the mid-2000s. Between 2013 and 2022, the County processed 12
Outdoor Mass Gathering (OMG)1 applications including Board Hearings on the dozen applications.
Many of these applications were for the Four Peaks Music Festival. Issues for the OMG permits
ranged from noise to traffic to incompatibility with adjacent land uses. The applicable review and
approval criteria for Outdoor Mass Gatherings (OMG) are found in Deschutes County Code (DCC)
8.16 (Events, Parades, Funeral Processions, and Outdoor Mass Gatherings) specifically DCC 8.16.010
and DCC 8.16.150 through 8.16.340. This code language must be consistent with state statute,
specifically Oregon Revised Statute (ORS) 433.735 to 433.770 (Regulation of Outdoor Mass
Gatherings)
Concerns about the effects of Oiv]Gs as weii as a patchwork approach in statute to outdoor events
eventually led the Legislature to approve HB 2790 (2019) to modify Oregon Revised Statute (ORS)
433.735 to ORS 4.33.770. Previously, OMGs were regulated only for health and safety under ORS
433.750 and were not land use decisions under ORS 197.015(10)(d). HB 2790 made local review of
a permit for a single gathering of more than 3,000 people and lasting more than 120 hours into a
land use decision.
OMGs that are not a land use decision, but regulated by health and safety regulations only:
• Events of less than 3,000 people lasting up to 120 hours
• Events of more than 3,000 people, but lasting less than 24 hours
• Events of more than 3,000 people lasting up to 120 hours
CURRENT PROCESS & CHANGES
Under DCC 8.16.170(A), the County requires permits for OMGs and Extended OMGs with public
hearings before the Board for OMGs and the Planning Commission for Extended OMGs. Under HB
1 Defined in ORS 433.375(2) as a gathering in an open space with actual or reasonably anticipated attendance of more than
3,000 people and lasting between 24 and 120 hours and occurs once within a three-month period. DCC 8.16.010 defines an
OMG sets actual or expected attendance of between 500 and 3,000 people and last for between more than 4 and less than
24 hours. DCC 8.16.010 defines an Extended OMG as attendance expected of more than 3,000 people or more than 500
persons for an event that last more than 240 hours, including set-up and breakdown.
2790, an application for an OMG becomes a land use decision - thus following the requirements of
Title 22 - and the decision can be made administratively or before a hearings officer, and is
appealable to the Board and ultimately the Land Use Board of Appeals (LUBA). Changes would need
to be made to DCC 8.16 to reflect changes in definitions and processes.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Low
Implementation Urgency
Low
Page 2 of 2
CI
\yr ES
COMMUNITY DEVELOP ENT
Attachment C - Replatting and Property Line Adjustment Amendments
BACKGROUND & OVERVIEW
Property owners have two primary options for adjusting the boundaries of properties created
through subdivisions or partitions:
1. Replats
2. Property line adjustments/consolidations
Simple lot line adjustments involving a single property line are adequately regulated under statute
(ORS 92.192). Significant reconfiguration of partitions and subdivisions are regulated under
replatting standards, which are more comprehensive and take into account how reconfiguration of
properties might affect surrounding roads, emergency access, and infrastructure capacity.
However, the Deschutes County Code contains ambiguous language defining when applicants
should utilize replatting standards versus property line adjustments and property line
consolidations.
CURRENT PROCESS & CHANGES
As noted by the by the Deschutes County Road Department, under current county code, the
potential exists for an applicant to apply for a series of property line adjustments to convert
adjoining undevelopable properties into developable properties without any consideration for
transportation infrastructure impacts. This potential is particularly present in undeveloped portions
of subdivisions platted prior to the statewide land use program. Notable examples include portions
of the Hillman, Millican, Centralo, and Laidlaw townsite plats. While the Road Department does not
have specific recommendations to correct these issues, they outline the following possibilities:
• Property line adjustments that would reconfigure existing adjoining undevelopable units of
platted land into a certain number of developable units of land shall be processed as a replat.
• Property line adjustments that would allow for development that is not subject to site plan
review with the potential to generate a certain number of weekday PM peak -hour trips shall
be processed as a replat.
Code amendments to address these issues would allow a more clear understanding of the
thresholds for applying replatting standards versus more simplified property line adjustment
standards. While generally uncommon, staff has encountered high profile applications wherein
definitional clarity between these two application types would have avoided additional legal or
consultant fees for the applicant while also addressing the impact concerns of the Road and
Community Development Departments.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Medium
Implementation Urgency
Medium
Page 2 of 2
COMMUNITY DEVELOPMENT
Attachment D - Sign Code Amendments
BACKGROUND & OVERVIEW
Currently, Deschutes County Code includes limitations on signs based on their content. In Reed v.
Town of Gilbert (2015), the U.S. Supreme Court found a content -based sign ordinance may impede
on an applicant's First Amendment right to Freedom of Speech based on the content of a given sign.
Building on Reed the Court reviewed a separate sign code -based case under CityofAustin v. Reagan
National Advertising of Austin (2022). In Austin, the U.S. Supreme Court found that certain sign code
provisions (such as requiring advertising signs to be placed on the premises of the entity being
advertised) can be considered content -neutral under the right to Freedom of Speech under the First
Amendment of the U.S. Constitution.
Deschutes County currently implements its Sign Code through Deschutes County Code Title 15.08.
Reed implies that Deschutes County should ensure that their Sign Code provisions are "content -
neutral" or else be subject to "strict scrutiny" under the First Amendment. Austin implies that not all
provisions of a given sign code are automatically "content -based" and, therefore, some sign code
provisions are subject to "intermediate scrutiny" rather than "strict scrutiny" under the First
Amendment. In Austin, the U.S. Supreme Court found that, in order to survive intermediate scrutiny,
a restriction on speech or expression must be "narrowly tailored to serve a significant government
interest".
CURRENT PROCESS & CHANGES
Revisions to the Sign Code could ultimately bring Title 15.08 into compliance with Federal case law
and interpretations around sign content and Freedom of Speech included in Reed(2015)and Austin
(2022). Staff foresees working closely with County Legal Counsel to review the existing Sign Code,
ensuring that content -based provisions are designed to be content -neutral.
Key Amendment Concerns
Staff Effort/Resources
Medium/High
Legal Complexity
Medium/High
Implementation Urgency
Medium
COMMUNITY DEVELOPMENT
Attachment E - Accessory Structure Amendments
BACKGROUND & OVERVIEW
The County regularly receives requests for residential accessory buildings with many of the features
of dwelling units (e.g. kitchen -like areas, multiple full -baths, wet bars). Despite careful
communication with developers, these residential accessory buildings are often converted to illegal
dwelling units or are misrepresented as ADUs to subsequent buyers of the property.
The Deschutes County Code (DCC) lacks provisions common in other Counties' code such as:
1) Specification of allowed plumbing and other dwelling -like features permissible in
residential accessory buildings,
2) A requirement for a recording to the property title, alerting future buyers that the
residential accessory building is not an ADU, or
3) A requirement that that the dwelling (primary use) must be constructed first (or at the
same time) as residential accessory buildings.
CURRENT PROCESS & CHANGES
The Board has expressed interest in creating clarity within the County Code around these potentially
ambiguous provisions. As one example, the City of Bend currently utilizes a code system that
provides specific definitions of certain improvement types, and clear standards of when and where
these improvements are allowed. City of Bend also provides accessory structure -related code
language, clearly specifying that primary uses must be established prior to accessory structures.
Revisions to County Code related to residential accessory buildings could offer more clarity for
residential property owners looking to develop and could help with the differentiation between
primary and accessory structures.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Medium
Implementation Urgency
Medium/High
COMMUNITY DEVELOPMENT
Attachment F - Spectrum Act - Wireless Telecommunication Amendments
BACKGROUND & OVERVIEW
On February 22, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 became law. Section
6409(a) of the act, also known as the Spectrum Act, was intended to advance wireless broadband
service for public safety and commercial purposes and to provide for the creation of a broadband
communications network for first responders. Along with Section 704 of the Telecommunications
Act of 1996 (Public Law 104-104), the Spectrum Act can be viewed as part of the ongoing effort by
the wireless industry to achieve federal preemption over local telecommunications zoning
regulations. As such, Deschutes County (along with many other State and local governments) must
alter existing telecommunication regulations which do not align with certain aspects of the
Spectrum Act.
The Spectrum Act and corresponding Federal Communications Commission (FCC) rulings outline
the following standards:
• Applies to collocations, removals, or modification of equipment on wireless towers or base
stations;
• Mandates that a State or local government "may not deny, and shall approve" any application
covered by section 6409(a);
• Does not apply to collocation on a structure that is not a wireless tower or base station; and
• Does not apply if action substantially changes the physical dimensions of a tower or base
station.
Regarding the process for reviewing an application under Section 6409(a), the FCC also provides
that:
• A State or local government may only require applicants to provide documentation that
is reasonably related to determining whether the eligible facilities request meets the
requirements of Section 6409(a);
• A state or local government must approve an application covered by Section 6409(a)
within 60 days from the date of filing, subject to tolling; the running of the period may be
tolled by mutual agreement or upon notice that an application is incomplete, but not by
a moratorium (an incomplete notice must be provided according with the same
deadlines and requirements applicable under Section 704 of the Telecommunications
Act of 1996, codified as 47 U.S.C. § 332(c)(7)); and
• An application filed under Section 6409(a) is deemed granted if a State or local
government fails to act on it within the requisite time period;
In the summary, Section 6409(a) restricts local land use review of modifications and collocations by
establishing a "substantial change" test as the primary eligibility determinant for review exemptions
afforded by the Spectrum Act and reduces the application processing "shot clock" from 90 days to
60 days.
CURRENT PROCESS & CHANGES
Deschutes County Code (DCC) Section 18.116.250 contains provisions which directly contradict the
standards of the Spectrum Act described above. However, the Community Development
Department (CDD) currently evaluates and approves applications for non -substantial changes to
physical portions of existing wireless telecommunication facilities (such as collocations of
infrastructure) pursuant to the standards of Section 6409(a).
However, code amendments would allow a more seamless understanding of the Spectrum Act
approval standards for both staff and applicants by codified the Spectrum Act standards in formal
Deschutes County documents and ordinances. Any proposed amendments would ultimately
include an objective set of standards for what constitutes "substantial changes" to existing wireless
telecommunication facilities.
Key Amendment Concerns
Staff Effort/Resources
Medium/Low
Legal Complexity
Medium
Implementation Urgency
Medium/Low
Page 2 of 2
COMMUNITY DEVELOPMENT
Attachment G - Conduit Hydroelectric Facility Amendments
BACKGROUND & OVERVIEW
In 1986, Deschutes County adopted Ordinance No. 86-018, allowing hydroelectric facilities as a
conditional use. In 2020, Three Sisters Irrigation District (TSID) applied for a hydroelectric facility to
be integrated into their existing conduit system for the purpose of generating operational revenue
for the district. The Board ultimately approved the request, only applying the provisions of DCC
18.128.260(A-B) that pertained to hydroelectric facilities located along existing conduit, not located
directly adjacent to natural waterways or impoundments. The Board's approval was ultimately
upheld at the Land Use Board of Appeals (LUBA) in 2022.
CURRENT PROCESS & CHANGES
During final reading of the Board's hydroelectric facility approval, the Commissioners expressed an
interest in revisiting the code provisions at DCC 18.128.260(A-B) for the purpose of differentiating
the "riverine" and "conduit" facilities, as characterized throughout the review of the TSID
application'. The Board mentioned the terms "affected stretch of river" and "maintain or enhance"
as language that may be changed to differentiate between these types of hydroelectric facilities.
Other changes to existing code language may be necessary to fully encapsulate the review criteria
that may apply to riverine and conduit facilities, respectively. These revisions would ultimately
create a more streamlined review process for conduit hydroelectric facility proposals which do not
directly abut waterways or otherwise directly impact rivers or other water sources.
Key Amendment Concerns
Staff Effort/Resources
Medium/High
Legal Complexity
Medium
Implementation Urgency
Medium
i Deschutes County BOCC Decision (Document No. 2021-223) pg. 20. 2021.
v-TES
COMMUNITY OEVELO MENT
Attachment H - Conventional Housing Combining Zone Amendments
BACKGROUND & OVERVIEW
The purpose of these amendments is to repeal the Conventional Housing Combining Zone (CHC
Zone) from the County's zoning map and zoning code. Deschutes County adopted the CHC in 1979
as part of Ordinance PL-15, the County's Zoning Ordinance. The CHC serves as an overlay district
and restricts placement of manufactured or prefabricated homes in specific areas of the County
with the following stated purpose:
'To provide a variety of residential environments in rural areas by maintaining areas
reserved for conventional and modular housing permanently attached to real property':
The CHC applies to three areas - an area to the east of Tumalo, west of Tumalo and east of Bend'.
In 2020, the County produced a Rural Housing Profile, which outlined several potential strategies
for removing barriers to housing production in rural Deschutes County. Repeal of the CHC was listed
as a strategy as it would give those properties the potentiai to provide affordable housing in the
form of mobile or manufactured homes, which are less expensive alternatives to stick -built or
modular housing.
In addition to this, on March 23, 2022, Oregon House Bill 4064 became effective. The bill amended
several sections of Oregon Revised Statute to prohibit local governments from prohibiting siting of
prefabricated structures in residential areas where traditional single-family homes or other
common dwelling types were allowed. Although the amendments were targeted toward cities and
urban growth boundaries, several code provisions also limit the County's ability to limit
manufactured prefabricated homes in residential areas.
PROPOSED CHANGES
The CHC is a mapped Combining Zone and removal of the zone from the three aforementioned
areas would require:
1) Repeal of section 18.92 Conventional Housing Combining Zone from the Deschutes County
Code
2) Zoning Map Amendment to repeal Conventional Housing Combining Zone
1DCC18.92.010
2 https://www.deschutes.org/sites/default/files/fileattachments/community development/page/16511/housing profile -
conventional housing combining zone map.pdf
Key Amendment Concerns
Staff Effort/Resources
Low/Medium
Legal Complexity
Medium
Implementation Urgency
Medium/High
Page 2 of 2
COMMUNITY DEVELOPMENT
Attachment I - Amend County Code to define family for unrelated persons, Non -familial
Individuals (HB 2583)
BACKGROUND & OVERVIEW
Until the passage of House Bill 2583 in 2021, local law in Oregon dictated residential occupancy
limits based on "family" or "related" persons, essentially limiting how many unrelated people could
share a home, regardless of dwelling type, size, or ownership status. This restriction served to
unnecessarily limit housing choices —a particular pressure point in the current housing crisis.
HB 2583 now precludes the "family" clause from single-family occupancy requirements, stating:
"A maximum occupancy limit may not be established or enforced by any local government,
as defined in ORS 197.015, for any residential dwelling unit, as defined in ORS 90.100, if the
restriction is based on the familial or nonfamilial relationships among any occupants."
CURRENT PROCESS & CHANGES
Deschutes County Code (DCC) Section 18.04.030, Definitions, currently defines "family" as:
"an individual or two or more persons related by blood, marriage, legal adoption, or
legal guardianship living together as one housekeeping unit using a common kitchen
and providing meals or lodging to not more than three additional unrelated persons,
excluding servants; or a group of not more than five unrelated persons living together
as one housekeeping unit using a common kitchen."
This allows a total of five people if the residents are unrelated, but an undetermined number if the
dwelling houses a family (which could be any size) as well as three unrelated persons.
Staff is investigating how other Oregon Counties have approached House Bill 2583. Clackamas
County, for example, allows a total of 15 persons, regardless of relationship.
Utilizing a flat occupancy rate (like Clackamas County) means that a small home would have the
same occupancy limit as a large home, which seems relatively illogical and could result in
overcrowding of smaller dwellings as well as overloading of septic systems. Relating occupancy to
number of bedrooms appears reasonable in that the occupancy limits would relate to the size of
the dwelling. However, this could also lead to complications with respect to what is considered a
bedroom. Often, rooms are used as bedrooms by residents even if they do not meet the definition
in the building code with respect to windows, egress, and size.
This amendment would require choosing a policy direction for a preferred definition as it relates to
occupancy.
Key Amendment Concerns
Staff Effort/Resources
Medium/Low
Legal Complexity
Low
Implementation Urgency
Medium/Low
Page 2 of 2
COMMUNITY DEVELOPMENT
Attachment) - DCC 18.116.095 Recreational Vehicle as a Temporary Residence on an
Individual Lot
BACKGROUND & OVERVIEW
County Code allows a vacant property to be occupied by a recreational vehicle (RV) for either 30
days in any 60-day period without a permit or 180 days with a permit. Ambiguity in the current
regulations result in significant code enforcement burden and difficulty ensuring proper disposal of
wastewater. Issue areas include:
• Failure to implement or maintain lawful wastewater disposal
• Fire safety concerns
• Occupancy beyond lawful duration
• Violation of Wetland or Floodplain regulations
• Establishment of Hipcamps (online nightly rentals of RV spaces)
• Construction of buildings accessory to the RV use of the property
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would update DCC 18.116.095 to
better address these concerns.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Low
Implementation Urgency
Medium
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 25, 2023
SUBJECT: Public Hearing: A Commercial Activity in Conjunction with Farm Use (Meadery) in
the Exclusive Farm Use Zone
BACKGROUND AND POLICY IMPLICATIONS:
The Board of County Commissioners will conduct a public hearing to consider a request for
a commercial activity in conjunction with farm use to establish a Meadery (file nos. 247-22-
000024-CU, 22-025-SP, 22-757-A, 22-914-A).
The Board has agreed to hear the appeal de novo. The Board will hear and consider the
report by staff, the applicant's presentation and written submittal, and any member of the
public that wishes to give testimony or provide written comments.
ACTION:
At the conclusion of the public hearing, the Board can choose to:
• Continue the hearing to a date and time certain;
• Close the oral portion of the hearing and leave the written record open to a date
and time certain;
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be determined.
BUDGET IMPACTS:
None
ATTENDANCE:
Nathaniel Miller, Associate Planner
Jacob Ripper, Principal Planner
TESL
CO iv MUN1TV DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Nathaniel Miller, AICP, Associate Planner
DATE: January 25, 2023
RE: Public Hearing: A Commercial Activity in Conjunction with Farm Use (Meadery) in the
Exclusive Farm Use Zone.
The Board of County Commissioners (Board) is conducting a Public Hearing on January 25, 2023, to
consider a request for a commercial activity in conjunction with farm use to establish a Meadery.
The applications and appeals are identified as file nos. 247-22-000024-CU, 22-025-SP, 22-757-A, 22-
914-A. The subject property is located approximately 0.5 miles southeast of the city limits of
Sisters along Highway 20 which borders the property to the southwest. The property is addressed
at 68540 Highway 20, Sisters, and is further identified on County Assessor's Map 15-10-10 as tax lot
700. A location map is included as Attachment A.
I. BACKGROUND
The Applicant, John Herman, has requested a Conditional Use Permit for commercial activities in
conjunction with farm use to establish a Meadery (Honey Winery) with associated uses in the
Exclusive Farm Use Zone (EFU), and within the Airport Safety (AS), Surface Mining Impact Area (SMIA)
and Landscape Management (LM) Combining Zones. The request also includes a Site Plan Review
for the Meadery and associated uses. The proposed Meadery would be situated on the southern
portion of the property along Highway 20 and within the existing developed building, lawn, and road
network. The Meadery Production and Meadery Operations (processing & tasting room) would be
centralized in an existing farm structure (Winery Building) with the Winery Related Events and
parking areas around this location.
On September 7, 2022, the Deschutes County Planning Division administratively approved a
conditional use permit and site plan request (file nos. 247-22-000024-CU, 247-22-000025-SP) for the
proposed Meadery. An appeal was filed on September 19, 2022, by Central Oregon LandWatch (file
no. 247-22-000757-A) to that decision requesting a Public Hearing. The initial Public Hearing before
the Hearing's Officer was conducted on Wednesday, October 26th, 2022. The Hearings Officer
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 ( P.O. Box 6005, Bend, OR 97708-6005
e. (541) 388-6575 pia cdd@deschutes .org ec www.deschutes.org/cd
issued a decision on November 18th, 2022, which denied the proposal. On November 29, 2022, the
applicant filed an appeal to the Hearing Officer decision (file no. 247-22-000914-A) requesting a
limited de novo review from the Board. In a Consideration to Hear meeting on December 21, 2022,
the Board agreed to hear the appeal de novo in a Public Hearing.
II. PUBLIC COMMENT
The Planning Division mailed notice of the conditional use application and site plan review to all
property owners within 750 feet of the subject property on December 12, 2021. The applicant also
complied with the posted notice requirements of Section 22.24.030(B) of Title 22. Staff has also
mailed two notices of decisions and two notices of public hearings in accordance with Deschutes
County's procedures ordinance. Public comments to the record are summarized below:
• Central Oregon LandWatch contacted the Planning Division on January 28, 2022, with
concerns that the proposal did not meet the applicable criteria.
• Neighbor, Matt Cohen contacted the Planning Division on February 14, 2022, with concerns
about the how access points on Highway 20 can accommodate increased traffic volumes.
III. APPEAL FROM CENTRAL OREGON LANDWATCH (247-22-000757-A)
As noted onr\A/o.-hofimgkk, onno-AlnCon4csmhnr 10 1011
QL%UVC, %IVC5U1I Lu1IU V VQtLI f� fhn rf-.ff
I I11CU u .11I ICIy utJ1JCu1 VI I .J jJLC1 I IVCI I .1, GVLL, Lt./ U IC .l011I
decision. The Notice of Appeal from Central Oregon LandWatch includes six (6) main points of
objection, which staff summarizes and include below:
• The decision violates ORS 215.416(8) which requires that approval or denial of a permit
application must be based on standards and criteria that are set forth in the zoning
ordinance or other appropriate ordinance or regulation of the county and relates 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.
• There is neither state nor local law permitting a meadery on EFU land.
• Mead is neither a wine nor a beer, and a set of beehives is not a vineyard. There is no legal
basis for finding a meadery is an allowed use in the EFU zone.
• ORS 215.203 authorizes counties to adopt ordinances establishing EFU zones, which limit the
use of the land therein to "farm use except as otherwise provided in ORS 215.213, 215.283
or 215.284." ORS 215.203(1). A Meadery is not a listed use.
• ORS 215.452 regulates wineries based on the characteristics of a vineyard, which are distinct
from the characteristics of beehives.
247-22-000024-CU, 22-025-SP, 22-757-A, 22-914-A Page 2 of 5
• There is no evidence on which to base a finding that a meadery will yield an income incidental
to the income from current mead sales, as there is no evidence of any mead sales.
IV. HEARING OFFICER DECISION
The Deschutes County Hearings Officer rendered a final decision denying the Applicant's request
for a conditional use permit for the Meadery on the grounds that:
• The applicant has not satisfied the standard for a Commercial Activity in Conjunction with
Farm Use demonstrating that the Meadery use will be incidental and subordinate to the farm
use on the property. These standards are outlined in DCC 18.16.030(E) with the incorporation
of relevant case law Friends of Yamhill County v. Yamhill County, 255 Or App 636, 298 P3d 586
(2013)1.
• The applicant did not adequately address impacts to farm uses in the area pursuant to
Deschutes County Code (DCC) 18.16.040(A) (1) and (2).2 The corresponding Oregon Revised
Statute (ORS) is ORS 215.296(1), which is also known as the "Farm Impacts Test".
V. APPEAL FROM APPLICANT (247-22-000914-A)
The Applicant (John Herman) submitted a timely appeal of the Hearings Officer's decision on
i .......-.-.I.....- 29 2022 The Applicant requested the Board conduct Ict a Public Hearing to review the
I\JuvCI I IIJCI L7, GVLL. The r }J JIIl.U1 Il 1 C1..'UCJ L' L1 the UVUI l.1 l.V n'./Ul.l U LILIII . 1 IGU r11 Ib to 11. V IC.11V the
following issues:
• Whether the Hearings Officer erred in finding the Applicant did not demonstrate that the
Meadery use will be incidental and subordinate to the farm use on the property and fulfill
the requirements of DCC 18.16.030(E).
The Hearings Officer found that the "...Applicant simply has not attempted to quantify the
magnitude of the farm use or the magnitude of the non farm commercial activities. Some attempt
at quantifying those activities is necessary if they are to be compared for the purpose of identifying
a primary use and a secondary use." The Hearings Officer further states: "...1 find that the
Application must be denied because the Applicant has not met its burden of demonstrating the
1 The Oregon Court of Appeals has developed a test for evaluating commercial activities in conjunction with farm use.
Friends of Yamhill County v. Yamhill County, 255 Or App 636, 298 P3d 586 (2013). It requires four findings:
1. The use relates to a farm use occurring on the subject property; and
2. Any commercial activity beyond processing and selling farm products must be incidental and subordinate
to the farm use (frequency and intensity when compared to the farm use on site, spatially, operating hours);
and
3. The use enhances the quality of the agricultural enterprise; and
4. The use promotes the policy of preserving farm land for farm use
21. Will not force a significant change in accepted farm or forest practices as defined in ORS 215.203(2) (c) on surrounding
lands devoted to farm or forest uses; and 2. Will not significantly increase the cost of accepted farm or forest practices on
surrounding lands devoted to farm or forest use; and
247-22-000024-CU, 22-025-SP, 22-757-A, 22-914-A Page 3 of 5
Meadery - as proposed - will be incidental and subordinate to a primary farm use on the Subject
Property."
• Whether the Hearings Officer erred in finding that the Applicant did not fully satisfy the
requirements of DCC 18.16.040 (A) (1) and (2), being the Farm Impacts Test.
The Hearings Officer found that "..the record does not include a description of the farm practices
on surrounding lands devoted to farm use, nor does it include any explanation for why the
proposed development will not force a significant change or cost to those practices."The Hearings
Officer further states: "Without any analysis of the accepted farm practices that are associated
with the identified farm uses, I cannot make a factual finding regarding the existence of those farm
practices, or a finding that it is more likely than not that the Meadery will not force a significant
change to those farm practices."
• Whether the applicant and subject property is currently engaged in farm activities with the
intent to make a profit in money.
Under the heading of: Is the Subject Property currently in farm use?, the Hearings Officer found
that ':..while it is an extremely close call, I find the Applicant has provided more than mere
testimony that it has sold crops. The Applicant has also testified that there has been a gross profit
from those sales and that the revenue earned has been reinvested in the farming operation. Based
on this record, and although the Applicant has provided little corroboration of revenue from the
current farm, I find it more likely than not that the Subject Property is currently in farm use."
VI. BOARD CONSIDERATION
The Board has agreed to hear the appeal de novo. The Board will hear and consider the report by
staff, the applicant's presentation and written submittal, and any member of the public that wishes
to give testimony or provide written comments. The record is available on the project website listed
below.
VII. 150-DAY LAND USE CLOCK
The application for 247-22-000024-CU, 247-22-000025-SP was considered complete and the 150-
day clock was started on July 15, 2022. The applicant initiated the first toll from September 21, 2022,
to September 23, 2022, which extended the clock by two (2) days. The applicant initiated the second
toll on November 29, 2022, to March 29, 2023, which extends the clock by one hundred and twenty
(120) days. With the tolls from the applicant, the original 150-day clock is extended past the original
150th day noted in the decision as December 12, 2022.
The 150th day on which the County must take final action on this application is April 13, 2023.
247-22-000024-CU, 22-025-SP, 22-757-A, 22-914-A Page 4 of 5
VIII. RECORD
The record for file nos. 247-22-000024-CU, 247-22-000025-SP (appeal file nos. 247-22-000757-A and
247-22-000914-A) is as presented at the following Deschutes County Community Development
Department website:
https://www.deschutes.org/cd/page/247-22-000024-cu-and-247-22-000025-sp-conditional-use-
and-site-plan-review-meadery
IX. NEXT STEPS
At the conclusion of the Public Hearing, the Board can choose one of the following options:
• Continue the hearing to a date and time certain;
• Close the oral portion of the hearing and leave the written record open to a date and time
certain;
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be determined.
ATTACHMENT(S):
Attachment A - 2023-01-25 Location Map 22-024-CU, 22-025-SP, 22-757-A, 22-914-A
Attachment B - 2023-01-25 Hearing Officer Decision 22-024-CU, 22-025-SP, 22-757-A
Attachment C - 2023-01-25 Appeal 247-22-000914-A
247-22-000024-CU, 22-025-SP, 22-757-A, 22-914-A Page 5 of 5
File: 247-22-000024-CU, 025-SP, 22-757-A, 22-914-A
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DECISION AND FINDINGS OF
THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: File No. 247-22-000757-A
(Appeal of files 247-22-000024-CU and 247-22-000025-SP)
HEARING DATE: October 26, 2022, 6:00 p.m.
HEARING LOCATION:
Videoconference and
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
APPLICANT/OWNER: John Herman
SUBJECT PROPERTY: Tax Lot 00700, Map 15-10-10
Situs Address: 68540 E Highway 20, Sisters, OR 97759
APPELLANT: Central Oregon LandWatch
REQUEST:
Appeal of an administrative decision: (1) approving a conditional
use for a meadery and associated activities as a commercial activity
in conjunction with farm use; (2) approving a site plan approval for
the meadery.
HEARINGS OFFICER: Tommy A. Brooks
SUMMARY OF DECISION: The Hearings Officer finds that the Applicant has not met its burden
of proof with respect to a commercial activity in conjunction with farm use and, therefore, SUSTAINS
the appeal, and DENIES the Application, based on the findings in this Decision.
I. APPLICABLE STANDARDS AND CRITERIA
Deschutes County Code (DCC)
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.120, Exceptions
Chapter 18.128, Conditional Use
1
II. BACKGROUND AND PROCEDURAL FINDINGS
A. Nature of Proceeding
This matter comes before the Hearings Officer as an appeal of a decision by the Deschutes County
Planning Department ("Staff') in which Staff approved: (1) the operation of a meadery as a commercial
activity in conjunction with a farm use (File 247-22-000024-CU); and (2) a site plan for the meadery (File
247-22-000025-SP) (together, the "Staff Decision").
The specific proposal in the Application underlying the Staff Decision is the Applicant's proposal to
operate a meadery on the Subject Property. According to the Applicant and other information in the record,
a meadery makes mead, a type of wine fermented from honey rather than from grapes. Mead is sometimes
referred to as "honey wine," and a meadery is sometimes referred to as a "honey winery." The Applicant
currently maintains beehives on the Subject Property from which honey is harvested and engages in the
production of mead. The Applicant plans to use honey from the Subject Property and from other faints
around the county and state as part of the planned meadery, which will produce mead on a larger scale for
sale. In addition to the meadery itself, the Applicant proposes other commercial activities such as an indoor
tasting room, an outdoor tasting area, food carts, "winery -related" events, and other unidentified activities
"related to the production, sale, marketing, and distribution of wine, farm products, and related incidental
items." The Application includes a request for use of the Subject Property as a music venue to support
local events that may not be winery related, such as the Sisters Folk Festival. This decision will refer to
the meadery and the proposed commercial activities as the "Meadery."
B. Notices, Decision, Appeal, and Hearing
The Application was filed on January 19, 2022. On January 28, 2022, the County issued a Notice of
Application to several public agencies and to property owners in the vicinity of the Subject Property
(together, "Application Notice"). The Application Notice invited comments on the Application.
On September 7, 2022, Staff issued a decision on the Application, styled "Findings and Decision" (the
"Staff Decision"). On September 19, 2022, the County received an Appeal Application with a Notice of
Appeal on behalf of Central Oregon Landwatch ("Appellant"), seeking review of the Staff Decision. There
is no dispute in this proceeding that the appeal documents were timely filed.
On September 30, 2022, the County mailed a Notice of Public Hearing ("Hearing Notice") announcing an
evidentiary hearing ("Hearing") for the appeal of the Staff Decision. Pursuant to the Hearing Notice, I
presided over the Hearing as the Hearings Officer on October 26, 2022, opening the Hearing at 6:01 p.m.
The Hearing was held via videoconference, with Staff, the Applicant, and a representative of Appellant
present in the hearing room. The Hearings Officer appeared remotely.
At the beginning of the Hearing, I provided an overview of the quasi-judicial process and instructed
participants to direct comments to the approval criteria and standards, and to raise any issues a participant
wanted to preserve for appeal if necessary. I stated I had no ex parte contacts to disclose or bias to declare.
I asked for but received no objections to the County's jurisdiction over the matter or to my participation
as the Hearings Officer.
2
No participant requested that the record remain open. The Hearing concluded at approximately 7:35 p.m.
At that time, I closed the Hearing and the record, and I took this matter under advisement.
C. 150-day Clock
The Applicant submitted the Application on January 19, 2022. Staff reviewed the Application and, on
February 18, 2022, notified the Applicant that the Application was incomplete ("Incomplete Notice"). The
Applicant provided additional information on or about March 8, 2022 and March 17, 2022, and continued
to provide information to the record in response to Staff inquiries. On July 15, 2022, Applicant's attorney
notified Staff that the Applicant had provided information in response to the Incomplete Notice, thereby
confirming that the Applicant believed the Application to be complete as of that date.
Using July 15, 2022, as the date of completeness, the deadline within which the County must make a final
decision under ORS 215.427 — "the 150-day clock" — is December 12, 2022.
III. SUBSTANTIVE FINDINGS AND CONCLUSIONS
A. Adoption of Findings in Staff Decision
The Staff Decision contains comprehensive findings related to the Application and the Subject Property.
The vast majority of the findings in the Staff Decision are not challenged in this Appeal, and, although
this proceeding is de novo, most criteria in the Staff Decision are not re -addressed by the participants
during the appeal. As a result, I hereby adopt the findings in the Staff Decision as my findings, as
supplemented and modified by the findings in this Decision, which address the issues and criteria that
were raised on appeal. To the extent any of the findings in this Decision conflict with the findings in the
Staff Decision, my intent is to have these findings control.
B. Issues on Appeal
The Appellant's Notice of Appeal sets forth several bases for appeal of the Staff Decision, and Appellant
raised other issues during the Hearing. Appellant seeks denial of the Application based on the following
assertions: (1) a meadery is not an allowed use in the Exclusive Farm Use ("EFU") zone either because
no local or state law allows such a use, or because a meadery is not a "winery", which can be allowed by
statute; (2) there is insufficient evidence on which to base a finding that there is any farm use currently on
the Subject Property; (3) there is insufficient evidence on which to base a finding that the Meadery will
produce income that is "incidental" or "subordinate" to income from farm uses on the Subject Property;
(4) the Applicant has not adequately addressed the farm impacts test required by ORS 215.296; and (5)
the Staff Decision violates ORS 215.416(8) because it is based on provisions relating to grape wineries
rather than a meadery. The findings below address each of those issues.
/ / /
/ / /
/ / /
3
1. Is a meadery an allowed use in the EFU zone?
The Applicant's proposed Meadery includes meadery facilities for processing mead and several associated
commercial activities such as tasting areas, food carts, and incidental sales of mead -related items.
Appellant asserts that the Meadery is not an allowed use in the EFU zone.
ORS 215.203 establishes a statewide construct for determining which uses are allowed in the EFU zone.
Under that statute, an EFU zone "shall be used exclusively for farm use except as otherwise provided in
ORS 215.213, 215.283 or 215.284."1 ORS 215.213 and ORS 215.284 are not applicable in the present
matter. ORS 215.283 sets forth various specific uses, other than "farm uses", that are allowed in the EFU
zone. The non -farm uses in ORS 215.283(1) are uses a county must allow by right, subject only to statutory
standards rather than local standards.2 The non -farm uses listed in ORS 215.283(2), in contrast, are
considered "conditional" uses that a county can choose to allow, and in doing so a county can impose
additional restrictions on those uses.3
Appellant is correct that neither the Deschutes County Code ("DCC" or "Code") nor ORS 215.283
expressly lists "meadery" as an allowed non -farm use in the EFU zone. ORS 215.283(1)(n) does list a
"winery" as a use permitted by right, but only if the winery is the type of winery described in ORS 215.452
or ORS 215.453. DCC 18.16.025(F) mirrors that statute and also refers to ORS 215.452, which the Code
incorporates through DCC 18.16.038(B). By the express teens of those statutory and Code provisions,
such wineries are wineries that produce wine from grapes.4 Those statutes therefore do not provide a basis
for permitting the Meadery, which processes honey rather than grapes.
In contrast to the winery example, ORS 215.283 and the Code also establish broader categories of non-
farm uses that encompass multiple specific uses. ORS 215.283(1)(c), for example, authorizes "utility
facilities necessary for public service", but that category has been applied to allows different types of
specific utilities.5 The absence of the word "meadery" in the statute or Code, therefore, does not mean a
meadery cannot ever be approved, and it is possible to approve a meadery under one of the listed use
categories, as long as the Meadery is a type of use contemplated by that broader category.
The broader category the Applicant seeks as the basis for approving the Meadery is set forth in ORS
215.283(2)(a) — "commercial activities that are in conjunction with farm use." The express terms of that
statute do not limit that category to any particular type of commercial activity and, instead, require only
that the commercial activity be in conjunction with a farm use. Indeed, that is how the courts have applied
that statute. Applying ORS 215.283(2)(a) prior to the legislature's enactment of ORS 215.452 and ORS
215.453, which now expressly allow certain wineries as a non-fai t1i use, the Oregon Supreme Court upheld
the issuance of a conditional use permit for a winery in the EFU zone as a commercial activity in
'ORS 215.203(1).
z Brentmar v. Jackson Cty., 321 Or 481, 496 (1995).
3 Id.
4 See, e.g., ORS 215.452(1), authorizing wineries that "produce wine" and that either includes an onsite vineyard, includes a
contiguous vineyard, or sources grapes from a contiguous vineyard.
5 See, e.g., Dayton Prairie Water Ass 'n v. Yamhill County, 38 Or LUBA 14 (2000) (applying statute to approve water
facilities); cf. WKN Chopin, LLC v. Umatilla County, 66 Or LUBA 1 (2012) (applying statute to approve electric
transmission line).
4
conjunction with a farm use.6 It did so because the winery at issue in that case satisfied the criteria of ORS
215.283(2)(a) and despite the fact that "winery" was not separately listed as an allowed use in the EFU
zone.
Based on the foregoing, I find that the Meadery is an allowed use in the EFU zone as long as the proposed
use satisfies the standards required for "commercial activities that are in conjunction with farm use" as
contemplated by DCC 18.16.030, which is the County's version of ORS 215.283(2)(a).7
a. Is the Subject Property currently in farm use?
Appellant asserts that a farm use is "a predicate for the approval of a commercial activity in conjunction
with farm use." More particularly, Appellant's assertion is that "a current farm use" must be shown before
any commercial activities in conjunction with farm use can be permitted. Appellant argues that the record
is not sufficient to demonstrate that the Subject Property is "currently" in farm use, as defined by ORS
215.203(2). In support of this argument, Appellant relies on Friends of Marion County v. Marion County,
-- Or LUBA — , LUBA No. 2021-088/089 (Apr. 21, 2022) ("Friends of Marion County").
As presented to the Hearings Officer, Appellant argues only that the Applicant has not demonstrated a
"current" farm use. The difficulty with Appellant's argument is that it does not address whether the
proposed use of the Subject Property as a Meadery, which would occur in the future, will be in conjunction
with a farm use that will exist at that time. Rather, Appellant's written and oral comments acknowledge
that the activities the Applicant proposes to produce mead in the future — which include beekeeping and
honey production — are farm uses. I therefore understand Appellant's argument to be that, regardless of
what future farm uses occur as part of the proposal, the Applicant must nevertheless demonstrate that there
are currently farm uses on the Subject Property.
The Friends of Marion County case and other cases interpreting ORS 215.283(2)(a) make it clear that a
"farm use" must exist if there is to be an allowed commercial activity in conjunction with that farm use.
Contrary to Appellant's argument, however, those cases do not hold that the farm use must already be in
existence at the time of the application. In other words, they do not prevent an applicant from proposing
a future commercial activity that will be in conjunction with a future farm use developed at the same time,
and in fact, those cases imply or acknowledge that the farm use can be developed in the future.
In Friends of Marion County, for example, the issue LUBA addressed was the argument that "none of the
findings or the evidence in the record demonstrates that intervenors currently operate or will operate a
faint use."8 LUBA reversed the county's approval in that case based on its conclusion that a farm use did
not currently exist. However, the county's findings in that case determined that the current uses on the
subject property were "farm uses" and the county required the applicant to maintain those same uses as
part of the approval of the commercial uses the applicant proposed. Because LUBA concluded that the
6 Craven v. Jackson County, 308 Or 281 (1989).
7 I also note that Appellant's representative appears to have agreed with this conclusion during the Hearing. In response to a
question from the Hearings Officer asking if all meaderies are excluded from the EFU zone as a matter of law, the
representative responded that was likely not the case and that it would need to be determined on a case -by -case basis under
ORS 215.283(2)(a).
s Friends of Marion County at * 10.
5
current activities were not "farm uses" as defined by statute, the applicant could therefore not rely on those
same activities as a basis for the approval of commercial uses in conjunction with farm uses. That case
did not involve a record that contemplated the further development of farm uses like the record in this
matter does. Craven also illustrates this point. In that case, the Court considered a conditional use permit
granted to an applicant who "proposes to establish a vineyard and winery", which "winery is to be
constructed before the accompanying vineyard is fully planted."9 Thus, the Court approved the
commercial activity in conjunction with a farm use that was not yet established. The Court was concerned
only whether the farm use would exist at the same time the proposed commercial activities were
conducted.
Based on the foregoing, I cannot agree with Appellant's assertion that the Applicant is required to show
that a farm use "currently" exits on the Subject Property. As in Craven, the permit can be issued as long
as the commercial activities are conducted in conjunction with a farm use, which farm use may be
developed in tandem with the commercial activities once the permit is issued.
If the Applicant were required to show that the Subject Property, as it currently exists, is in farm use, this
would be a more difficult issue to resolve. Appellant takes issue with the fact that the Applicant has not
demonstrated a "profit" from farm activities. As explained in Friends of Marion County, "profit" is a
broad term, and profit exists "so long as crops are raised, harvested and sold for a gross profit.' In that
case, LUBA held that a farmer had not demonstrated a profit where the farmer "simply testified that they
sold the field crops with no other documentation of their production or sale." Here, while it is an extremely
close call, I find the Applicant has provided more than mere testimony that it has sold crops. The Applicant
has also testified that there has been a gross profit from those sales and that the revenue earned has been
reinvested in the farming operation. Based on this record, and although the Applicant has provided little
corroboration of revenue from the current farm, I find it more likely than not that the Subject Property is
currently in farm use.
b. Does the Meadery satisfy the standard for commercial activities in conjunction with
farm use?
Appellant asserts that the Meadery does not meet the standard for allowing commercial activities in
conjunction with farm use. Appellant's specific arguments are that the Meadery is not incidental and
subordinate to Applicant's planned farm uses, and that it does not enhance the local agricultural
community.
Appellant's arguments are grounded in the case law that interprets ORS 215.283(2)(a). One clear
articulation of the standard from the Court of Appeals states that any commercial activity beyond the direct
processing and selling of a farm product must "be both `incidental' and subordinate to" the farm use. 1 In
Friends of Yamhill County, the Court of Appeals addressed a county's approval of a permit to allow 44
9 Craven, 308 Or at 283-84.
10 Friends of Marion County at *16 citing Cox v. Polk County, 39 Or LUBA 1, 7-12 (2000).
11 Friends of Yamhill County v. Yamhill County, 255 Or App 636, 650-51 (2013) citing Craven, 308 Or at 289.
6
annual events as part of a winery.12 Finding the approval to be "dangerously close" to creating a scenario
in which the incidental and secondary activities overtake the primary activity, the court nevertheless
upheld the approval. The court explained that its decision was based on a condition of approval that limited
non -farm income from the commercial activity from exceeding 25 percent of the gross income from the
farm use activity, which was the onsite retail sales of wine.13
The Applicant's proposal and the Staff Decision in this matter imposed a condition of approval similar to
the condition in Friends of Yamhill County. Specifically, the Staff Decision imposes a condition that
requires the Applicant to confirm, on an annual basis, that no less than 25% of the honey used to produce
mead is generated from the Subject Property. However, this condition of approval does not address the
same issue the court was concerned with in Friends of Yamhill County. The condition in Friends of Yamhill
County ensured that the scale of the non -farm commercial use was not greater, and therefore subordinate
to, the primary farm use. In contrast, the condition in the Staff Decision that the Applicant relies on
controls only the scale of the farm product being used for the commercial activity, ensuring that the Subject
Property is the primary source of the farm product. That condition does not appear to impose any
limitations on the scale of the non -farm commercial uses. Thus, for example, even if the Applicant sourced
all of its honey from the Subject Property, nothing would prevent the Applicant from holding events and
selling food from food carts in a manner the produces significantly more income than the farm use. If that
occurred, the non -farm commercial activities would end up being the primary activity rather than the
secondary activity.
As the Appellant points out, there are other components of the Application indicating that the non -farm
commercial uses are not subordinate to the farm use. For example, the Applicant intends to have four
employees for the Meadery, but perhaps only one, if any, for the farm operations. It is perhaps possible to
have such a disparity in employees and still have the farm use be the primary use. However, as the
Appellant notes, the Applicant simply has not attempted to quantify the magnitude of the farm use or the
magnitude of the non -farm commercial activities. Some attempt at quantifying those activities is necessary
if they are to be compared for the purpose of identifying a primary use and a secondary use.14 That burden
lies with the Applicant. Based on the record before me, I find that the Applicant has not met that burden.15
Although I agree with the Appellant that the Applicant has not demonstrated the Meadery will be
incidental and subordinate to a farm use, I disagree with the Appellant's argument that the Applicant has
not demonstrated the Meadery enhances the local agricultural community. The Craven decision is
informative in this regard. In that case, the Court determined that the proposed winery did enhance the
local agricultural community because it provided a local market outlet for grapes of other growers in the
area. The Court also noted that it would help transform a hayfield into a vineyard, which increases the
12 The application in that case was made pursuant to ORS 215.283(2)(a) as a commercial activity and not under ORS
215.283(1)(n) as a winery.
13 The definition of "farm use" includes "the preparation, storage and disposal by marketing or otherwise of the products or
by-products raised on such land for human or animal use." ORS 215.203(2)(a).
to See. e.g., Chauncey v. Multnomah County, 23 Or LUBA 599 (1992) (holding that an application without evidence
establishing the quantity of products delivered or dollar amount of sales to cannot demonstrate, as a matter of law, the
proposed use is a commercial activity in conjunction with farm use).
15 Appellant also relies on Friends of Yamhill County v. Yamhill County, 301 Or App 726 (2020). That case, although it
addresses commercial activities, applies ORS 215.283(4), and is therefore not directly applicable to this matter.
7
intensity and value of agricultural products. LUBA has built on the decision in Craven and stated that, to
demonstrate an activity enhances the local agricultural community, "a commercial activity in conjunction
with farm use must be either exclusively or primarily a customer or supplier of farm uses."'
The Applicant's proposal here is nearly identical to the situation in Craven and City of Sandy v. Clackamas
County. Specifically, the Applicant proposes to purchase honey from other farmers. Although the
Applicant will not be a supplier of other farm uses, it will be primarily a customer of farm uses. The
Applicant also proposes to develop regenerative bee pastures, which enrich the soils and, ultimately,
increases the intensity and value of agricultural products. I therefore find that the Applicant's proposal
satisfies this part of the standard in ORS 215.283(2)(a).
Based on the foregoing, I find that the Application must be denied because the Applicant has not met its
burden of demonstrating the Meadery — as proposed — will be incidental and subordinate to a primary farm
use on the Subject Property.
c. Did the Applicant adequately address the farm impacts test required by ORS 215.296?
As noted above, a commercial activity in conjunction with farm use is an allowed use in the EFU Zone,
subject to any additional conditions the County may impose in its Code. Pursuant to DCC 18.16.040, the
County has imposed several limitations on conditional uses, including commercial activities in
conjunction with farm use authorized under DCC 18.16.030. The specific restrictions in DCC
18.16.040(A)(1) and (2) are required by state law and are a codification of the restrictions in ORS
215.296(1). LUBA sometimes refers to these restrictions as the "Faun Impacts Test."
An applicant carries the burden of proving that ORS 215.296(1) has been met.17 LUBA has a well -
established methodology for demonstrating compliance with the farm impacts test.18 Under that
methodology, a proposal can be 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 impact or 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 to begin by visually surveying surrounding lands to identify the
fain! and forest uses to which those lands are devoted."19 Other parties are then free to dispute the initial
findings, or to add to the record additional evidence of nearby farm uses and farm practices that the
applicant must respond to.20
In addressing the Farm Impacts Test, the Applicant initially followed the process described above by
providing what amounted to a visual survey of the surrounding land. Specifically, the Applicant
provided an inventory of all parcels within a one -mile radius of the Subject Property that are devoted to
farm use. As part of that inventory, the Applicant also identified specific faiin uses in the study area,
16 City of Sandy v. Clackamas County, 28 Or LUBA 316, 321 (1994).
17 Schrepel v. Yamhill County, -- Or LUBA — (LUBA No. 2020-066), 2020 WL 8167220, at *6.
18 See Brown v. Union County, 32 Or LUBA 168 (1996).
19 Dierking v. Clackamas County, 38 Or LUBA 106, 120-21 (2000).
20 Id.
8
noting that they included "a combination of grass hay, permaculture, forest, [and] bare land." Other
information provided by the Applicant indicates that some properties have horses, cattle, and pastures.
The Applicant concludes, primarily based on geographic separation, that there will be no impacts to
forest or farm practices on the farm uses identified in the inventory. For example, the Applicant states a
nearby property "is buffered by our own dwellings, farm buildings, 12 acres of regenerative bee pasture,
and a 20-acre field that will eventually become regenerative bee pasture. At this distance, the winery
will not significantly change or increase the cost of any of the accepted farm practices on this farm
property." The Applicant arrived at a similar conclusion for potential noise and light impacts, noting
that, because of the adjacent noise and lights from Highway 20, these impacts are already accepted by
all adjoining farm and forest land.
The flaw in the Applicant's analysis is that it does not actually identify any farm practices that are
associated with the various farm uses it identifies. As applied by LUBA and the courts, the Farm
Impacts Test must focus on impacts to farm practices. Further, the fact that a similar impact may already
exist does not mean that an increase in that impact is necessarily acceptable. An impact that already
exists may nevertheless force a significant change to the farm practices associated with that use, or
significantly increase the costs of those practices. That determination cannot be made, however, unless
the Applicant first identifies specific farm practices that may be impacted.
In summary, the record does not include a description of the farm practices on surrounding lands
devoted to farm use, nor does it include any explanation for why the proposed development will not
force a significant change or cost to those practices. It is quite possible that the meadery will not have
significant impacts on farm practices, but the burden to demonstrate compliance with the Farm Impacts
Test unequivocally lies with the Applicant. Without any analysis of the accepted farm practices that are
associated with the identified farm uses, I cannot make a factual finding regarding the existence of those
farm practices, or a finding that it is more likely than not that the Meadery will not force a significant
change to those farm practices. I therefore find that the Applicant has not met its burden to demonstrate
compliance with DCC 18.16.040(A)(1) and (2).
d. Did the Staff Decision comply with ORS 215.416(8)?
Because a meadery is a type of winery, the Applicant refers to the winery statutes and compares the
proposed meadery to a grape winery. As noted in earlier findings, state statues contain provisions specific
to grape wineries and grape wineries are allowed in the EFU zone either outright through ORS
215.283(1)(n), as implemented by ORS 215.452 and ORS 215.453, or conditionally through ORS
215.283(2)(a) as a commercial activity in conjunction with agriculture. Applicant's stated purpose for
comparing a meadery to a winery is that using the winery statutes as a guide helps ensure the meadery
remains "incidental and subordinate to farm use." Appellant asserts that this approach is akin to approving
the meadery based on inapplicable criteria and, therefore, violates ORS 215.416(8). That statute requires
that approval or denial of a permit application be based only on applicable standards and criteria set forth
in a county's land use regulations. Appellant argues that the winery statutes are not applicable and,
therefore, cannot be relied on for approval of the Meadery.
9
Even though this Decision reverses the outcome of the Staff Decision, ORS 215.416(8) applies to both
the approval or denial of an application. I therefore find it appropriate to address whether the Staff
Decision violated ORS 215.416(8). I find that it did not.
There is no dispute in this proceeding that the Applicant seeks approval of the meadery under ORS
215.283(2)(a) as a commercial activity in conjunction with agriculture. The Applicant refers to the winery
statutes as a guide and Applicant's express request to the County was "We have suggested that the County
consider imposing most of the limitations on the meadery that ORS 215.452 applies to small wineries as
a means of assuring that activities associated with the meadery are incidental and subordinate to farm use."
Indeed, the Applicant recognized that ORS 215.452 was not a basis for approval of the meadery where it
referred to ORS 215.456, which points back to ORS 215.283(2)(a) as a means of approving a winery that
cannot otherwise be approved under ORS 215.283(1)(n), ORS 215.452, and ORS 215.453.
Contrary to Appellant's assertion, the Staff Decision did not rely on the winery statutes and, therefore, did
not rely on inapplicable criteria. Indeed, the Staff Decision very clearly articulated the standard under
ORS 215.283(2)(a) and set forth the three components of such a use that Staff would review: (1) the use
must be a "commercial" activity; (2) it must be "in conjunction with farm use;" and (3) it must not be the
processing of farm crops as described in Section 18.16.025. The Staff Decision then made findings relating
to each of those components, and did so without reference to the requirements of the winery statutes. The
criteria the Staff Decision relied on are each incorporated into the County's Code. The Staff Decision
therefore did not violate ORS 215.416(8).
C. Conditions of Approval
The Staff Decision imposed several conditions of approval as part of Staff's approval of the Application.
The Hearings Officer notes that no participant challenged any condition of approval or otherwise asserted
such conditions could not or should not be applied if the Application were approved. Because this Decision
finds that the Application cannot be approved based on the current record, however, there is no basis to
impose any conditions of approval.
IV. CONCLUSION
Based on the foregoing findings, I find the Applicant has not met its burden of proof with respect to the
standards for approving commercial activities in conjunction with a farm use and with respect to the Farm
Impacts Test. The appeal of the Staff Decision is therefore SUSTAINED, and the Application is DENIED.
Dated this 17th day of November 2022
Tommy A. Brooks
Deschutes County Hearings Officer
10
• COMMUNITY DEVELOPMENT
APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS
FEE:
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board
stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a
request for de novo review by the Board, stating the reasons the Board should provide the de
novo review as provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating
the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the
County Code. The Notice of Appeal on the reverse side of this form must include the items listed above.
Failure to complete all of the above may render an appeal invalid. Any additional comments should be
included on the Notice of Appeal.
Staff LdHh1Ut advise a potential appelidrt as w YYrleuier the appellant is eligible to file an appeal (IJ %.
Section 22.32010) or whether an appeal is valid. Appellants should seek their own legal advice concerning
those issues.
Appellant's Name (print)• John Herman
Phone: (541 ) 588-5299
Mailing Address: PO Box 1524 City/State/Zip:Sisters, OR 97759
Email Address: john@lazyzranch.com
Land Use Application Being Appealed: 247-22-000757-A (247-22-000024-CU and -000025-SP)
Property Description: Town 15 R nge 10 Section 10 Tax Lot 700
Appellant's Signature: ---"----- Date: r!/ 70 c� -
By signing this application and paying the appeal deposit, the appellant understands and agrees that
Deschutes County is collecting a deposit for hearing services, including "whether to hear" proceedings.
The appellant will be responsible for the actual costs of these services. The amount of any refund or
additional payment will depend upon the actual costs incurred by the county in reviewing the appeal.
Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing
appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each
recording copy). Appellant shall submit the transcript to the planning division no later than the close of
117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005
tp'` (541) 388-6575 @cdd@deschutes.org ;p www.deschutes.orglcd
the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date
set for receipt of written records.
NOTICE OF APPEAL
Notice of Appeal attached and incorporated by reference herein.
NOTICE OF APPEAL — HERMAN MEADERY
John Herman asks that the Board of Commissioners agree to hear an appeal of a decision by
Hearings Officer Tommy Brooks, that declined for technical reasons to affirm County staff's
approval of a winery on the Lazy Z Ranch, a farm property that is devoted to farm uses, including
raising honeybees that produce honey used in making wine (mead). Mr. Herman asks that the
Board limit its review to the issues identified in this Notice of Appeal and that it conduct a "de
novo" review of these issues and waive the transcript requirement of DCC 22.32.024.
The primary reasons why the Board should hear the appeal is to correct an erroneous finding in
the Hearings Officer's decision that shows that the hearings officer did not fully understand the
applicant's proposal, and to allow the applicant to provide additional evidence that will
demonstrate that the winery will not violate the "farm impacts" test. It should also hear this
appeal to allow the applicant to provide additional information to show that his use of his
property is a farm use supporting not only his, but also other farm uses in Deschutes County,
including apiaries operated by Sisters -area and Central Oregon beekeepers and farmers who will
also benefit from this Deschutes County ranch meadery.
County staff approved the meadery, after a rigorous and lengthy review, as a commercial activity
in conjunction with farm use as allowed by State law and the County code. The meadery is a
winery that will make honey wine. State law allows wineries as uses permitted outright in EFU
zones but requires that 15 acres of grape vines be planted to qualify. State law, however, allows
wineries that do not meet theca requirements to be approved as commercial activities in
conjunction with farm use and this is the route followed by Mr. Herman. Mr. Herman and his
family have improved their property with 30 acres of regenerative bee pastures, berries, flowers,
and pumpkins; with plans to plant fruit trees. They have established an apiary and are selling
honey and storing it for use in making honey wine. The regenerative bee pastures are also, at
targeted times of the year, used to graze livestock. The Hermans also generate farm income by
boarding horses and growing pumpkins. Their gross farm income in 2022 thus far is $31,083.
The market value of the honey they produced and are saving to make mead is $10,200 to $12,000
for a total farm market income for eleven months of the year of $41,283 to $43,083. This
compares favorably to the 2017 average market value of farm products sold by Deschutes County
farms of $19,386 per year.' The Herman farm is also larger than over 85% of other Deschutes
County farm properties.2 This increases the odds their farm will be profitable and makes it
reasonable for them to expect to make a profit in money from farm use.
The hearings officer denied approval of the meadery for two reasons we list below. Mr. Herman
asks that the Board limit review of this appeal to these two issues as described below, and the
1 Information obtained from the 2017 US Census of Agriculture.
2 According to the 2017 US Census of Agriculture 85% of Deschutes County farm are smaller than 50
acres in size.
Page 1— Notice of Appeal/Herman Meadery
issue whether the Herman property is in farm use, and accept new evidence on these three
issues.
Appeal Issue One — Incidental and Subordinate Test
The hearings officer made the following finding when addressing the requirement that the
commercial activity be incidental and subordinate to farm use that is not correct:
"[N]othing would prevent the Applicant from holding events and selling food from
food carts in a manner the [sic] produces significantly more income than the farm
use."
In fact, the Herman application limits income from these incidental sales and events to 25% of
the gross income of on -site retail sale of wine to assure that events and incidental sales are and
remain incidental to farm use. This is the limit imposed by State law on wineries that are
approved as commercial activities in conjunction with farm use by ORS 215.456, rather than as a
winery allowed outright by ORS 215.452 and 215.453. This strict 25% limitation clearly prevents
the Herman family from obtaining significantly more income from events and food cart sales than
from the farm use/winery. The Hermans also ask that this 25% requirement replace the 25%
requirement of Condition C which the hearings officer found would not achieve compliance with
the incidental and subordinate test. The staff decision applied Condition C based on the
requirements for a crop processing facility set out in DCC 18.16.025 but the use proposed is not
a crop processing facility. In a prior decision for a distillery approved as a conditional use in
conjunction with farm use in the EFU and MUA-10 zones, the County's decision removed a similar
25% of crops grown on site requirement from the initial approval concluding that "nothing in
State law requires imposition of a proportionality limitation for the distillation and processing
activities." MC-13-7 (Bendistillery), page 7. The Board should do the same here.
The hearings officer also failed to understand the nature of evidence regarding employees. He
believed that the applicant plans to hire four employees for the meadery and only one to assist
with farm operations. The information regarding meadery employees was provided as a worst -
case estimate to County staff so it could determine the amount of parking required. There will,
in fact, be zero employees working at the meadery other than the owners when it opens its doors
to the public, and only one person staffing the food cart when it is in operation. The estimate of
four employees is sufficient to provide parking for temporary employees needed to assist with
events. Events will only be held infrequently (significantly less than the maximum allowed by the
staff decision) given the fact that income from events may not exceed 25% of on -site wine sales.
Additionally, the two adult members of the Herman family provide farm labor. This is one reason
only one employee is expected to be needed for farm work. Also, the Hermans have hired
contractors as needed, rather than employees, to help with the regenerative bee pastures and
other farm activities. The Hermans graze cattle as a crop share with an area ranch family. This
ranching family invests their time in conducting this farm use on the Herman property, but they
are not employees.
Page 2 — Notice of Appeal/Herman Meadery
Appeal Issue Two — Farm Impacts Test
Mr. Herman seeks Board review to allow him to provide even more specific information to the
Board to support County staff's finding that the meadery complies with the "farm impacts" test.
Mr. Herman identified farm activities within one mile of his farm/meadery and explained, in
detail, why his honey winery would not negatively impact those activities at a level that satisfied
County staff that the "farm impacts" test had been met. Mr. Herman provided a map illustrating
the significant separation and buffering between the meadery and farm uses on other area
properties. These facts made it clear that the meadery will not interfere with farming area
properties, but the hearings officer determined that more specific information should be
provided regarding the farm practices of area farms to prove what is obvious — that there will be
no negative impact on area farm practices from operation of the winery. As a result, Mr. Herman
asks for the opportunity to provide new evidence regarding specific farm practices so that the
Board can confirm that approval of the meadery will meet the farm impacts test.
A recent Oregon Supreme case holds that this more detailed review is required where parties
dispute whether a nonfarm use will force a significant change to farm practices. No such
challenge was presented in this case. Not a single neighbor has opposed the application, despite
three separate notifications mailed, to date. The only challenge to farm impacts test findings was
a general claim by Central Oregon LandWatch that the analysis provided by Mr. Herman was not
sufficiently detailed. Nonetheless, Mr. Herman seeks an opportunity to provide further evidence
to confirm that his meadery will meet the farm impacts test.
Appeal Issue Three — Farm Use
The hearings officer determined that the Herman property is engaged in a "farm use" as the term
is applied by LUBA in the recent case of Friends of Marion County. The Herman family is also
engaged in farm activities intending to make a profit in money. They ask that the Board make a
finding to that effect. To that end, they would like the opportunity to provide additional evidence
regarding their farming activities and income thus far. The Hermans are making significant
investments of time and money on behalf of their farm use on the property. Income from farm
activities is being reinvested in the farm with the intention of obtaining a return on their
investment, meeting the more rigorous "farm use" test LandWatch says should be applied.
We address, below, the County's requirements for appeals and request approval of a waiver of
the transcript requirement of DCC 22.32.024.
DCC 22.32.010
Mr. Herman is a party in the matter appealed. He is the applicant seeking approval of the
meadery.
Page 3 — Notice of Appeal/Herman Meadery
DCC 22.32.015
Mr. Herman is filing a completed notice of appeal on a form prescribed by the Planning Division
and with the applicable appeal fee prior to the expiration of the appeal period.
DCC 22.32.020
This document contains a statement raising any issue relied upon for appeal with sufficient
specificity to afford the Board an adequate opportunity to respond and resolve each issue. The
document also states reasons why the Board should review the hearings officer's decision. The
applicant is requesting that the appeal be heard de novo but limited to a review of the issues
stated in this appeal. The Board should allow a de novo review to allow the parties and the Board
an opportunity to provide additional information to enable the Board to make robust findings of
compliance with the farm impacts, incidental and subordinate and "farm use" tests if it affirms
the Planning Division's administrative decision approving the meadery.
DCC 22.32.024
DCC 22.32.024 (D) allows the Board the right to waive the transcript requirement of DCC
22.32.024. Given the facts that: (a) the applicant is seeking de novo review; and (b) the hearing
was video -recorded and available for view by any party, the public and Board; and (c) transcribing
the hearing will increase the financial hardship imposed on the applicant to pursue a review of
his application; and (d) it is believed that that Board routinely waives the transcript requirement
for de n^vo appeal.
DCC 22.32.027
DCC 22.32.027(B)(4) says that the Board may "limit the issues on appeal to those listed in an
appellant's notice of appeal." The applicant requests that the Board so limit appeal issues in this
case.
Page 4 — Notice of Appeal/Herman Meadery
LIZ FAIVC fE2, ATroRIVEY
January 25, 2023
BOARD OF COMMISSIONERS
DESCHUTES COUNTY
1300 NW WALL STREET
BEND, OREGON 97703
Re: Herman Honey Winery; File 247-22-000024-CU and 247-22-000025-SP
Appeal File 247-22-000914-A
I am writing on behalf of John Heiman. Mr. Heiiiian is seeking approval from the Board of
Commissioners to establish a winery on his farm property.
Incidental and Subordinate to Farm Use Test
The faitn use of the Heiman property is raising honey bees to produce honey, cultivating
regenerative bee pastures, growing crops (pumpkins and berries), grazing livestock, and boarding
horses. Mr. Heiman is proposing and the law allows the Board to approve the winery as a
commercial use in conjunction with farm use. DCC 18.16.030(E), ORS 215.283(2)(a) and ORS
215.456.
When a winery is approved as a commercial activity in conjunction with farm use, the following
"incidental and subordinate" test applies:
"[A]ny commercial activity beyond the direct processing and selling of wine must,
to be approved as a commercial activity in conjunction with the farm use of
viticulture, [must be] both incidental and subordinate to the processing and selling
activities of the winery."
Friends of Yamhill County v. Yamhill County, 255 Or App 636, 650-651, 298 P3d 586 (2013)
discussing Craven v. Jackson County, 308 Or 281, 779 P2d 1011 (1989). 1
The processing and selling of wine is a part of the farm use. It is not subject to the "incidental and
subordinate" test. Only other commercial activities associated with a winery require approval as a
conditional use in conjunction with faun use. In Craven, this included the incidental sale of items
such as t-shirts, wine glasses and cork screws. As determined by the appealed Staff Decision, the
i In Friends of Yamhill County, the Court of Appeals approved the hosting 44 events and operating a
commercial kitchen in addition to event and other uses allowed as permitted uses by ORS 215.452 or
215.453 as a commercial activity in conjunction with farm use finding it incidental and subordinate to the
farm use/winery.
— 3 — January 25, 2023
that the Board of Commissioners limit agritourism and commercial events to ten agritourism and
commercial events per year.
Further, the Staff Decision assures compatibility with area farm uses by imposing conditions on
events of the type that may be imposed to achieve subordinance for ORS 215.452 wineries. These
include limits on the number of event attendees, hours of operation, access, parking, and noise.
Other limits imposed that aid in achieving compliance with the incidental and subordinate test
include limits on lighting, visual impacts from Highway 20, size of outdoor seating, and
landscaping.
Mr. Herman is proposing conditions of approval that assure that his property will remain in farm
use and meet the incidental and subordinate test. A copy of the proposed conditions is enclosed
with this letter. The following is an overview of these conditions (see enclosed conditions for full
text):
• 30 acres of the winery property must be maintained as bee pasture.
• 100% of honey used to make wine or sold as a farm product.
• Agritourism and other commercial events are reduced to ten days per year.
• Agritourism and special event attendance capped at 250 persons for five events and 150
for five events.
• Weddings are not allowed.
• Limits on the number and operation of food carts.
• No agritourism or special event may occur until after the winery has achieved gross
income of $40,000 from the onsite sale of wine produced in conjunction with the winery.
• The winery must comply ORS 215.456(2)'s 25% limit on gross winery income from
sales other than the on -site retail sale of wine produced in conjunction with the winery.
• All honey be produced in Oregon and 90% of the honey used to make mead must come
from a subset of Oregon counties.
• Annual reporting of compliance with the 25% gross sales rule and honey source
conditions of approval. A violation of either requirement in two consecutive years
renders the approval void.
Finally, the hearings officer raised a concern regarding the number of employees that might be
employed by the winery. He did not, however, account for the fact that most of the time spent by
these employees will be spent to produce and sell wine — activities not subject to the incidental and
subordinate test. Additionally, the hearings officer did not recognize the fact that a considerable
amount of farm labor is required. It is provided by the Hermans, friends and family of the
Hermans, independent contractors (work in bee pastures), and by the owner of the cattle that graze
in the regenerative bee pastures.3
3Income from cattle is shared and only that part earned by the Herman family is stated as the income from
farm use on the Herman property. Mr. Herman assists with the care of the cattle when they are grazing on
his property.
2465 NW SACAGAWEA LANE • BEND, OREGON • 97703
PHONE: 541-385-3067
— 5 — January 25, 2023
• UC Davis Robert Mondavi Institute
• Regenerative Apiculture Working Group
Herman Property is Engaged in Farm Use
COLW questioned whether the Herman property provided enough evidence to demonstrate that its
property was in faun use. The Heenan family grossed over $30,000 in income from farming in
2022; their second year of operation. They also stockpiled over $10,000 worth of their honey to
use in making wine. Their gross income is higher than the gross income earned by most farm
properties in Central Oregon. The average farm -related income for Deschutes County farms in
2017 according to the US Census of Agriculture (enclosed) was $19,386 with average faun losses
of $12,866. Only 11 % of farms in Deschutes County have farm sales of $25,000 or more per year.
Mr. Herman is reinvesting farm income in improving farm uses on his property with an intention
to make a profit in money from the combined uses, including the sale of honey.
Herman Winery Supports Local Agriculture
The Herman winery will support local agriculture in at least two ways. First, it will keep bees that
will pollinate area farm crops. Second, it will create a market for honey and other honey wine
ingredients produced by existing Sisters area and other Central Oregon beekeepers and farmers,
and encourage local beekeepers to establish more hives and bee colonies that are beneficial to crop
production in the area. Central Oregon has a burgeoning community of beekeepers and farmers
that will benefit from having access to a new consumer of honey and other honey wine ingredients.
Mr. Herman is working to help other Central Oregon farmers enter the market and produce honey
for sale to his winery.
Thank you for your consideration of this information.
Sincerely,
L L ' Famcitor
Liz Fancher
Attorney for John Herman
2465 NW SACAGAWEA LANE e BEND, OREGON • 97703
PHONE: 541-385-3067
County a written statement that is prepared by a certified public accountant certifying that
the winery has reached $40,000 in gross income from the on -site retail sale of wine
produced in conjunction with the winery.
G. Winery Related Events
Applicant/owner shall have a representative at the site during all Winery Related Events
involving outdoor amplified noise/music. That representative shall have the authority and
responsibility to immediately respond to noise complaints and to ensure immediate
correction occurs.
H. Speaker Noise Level.
All outdoor speakers for events shall be set at or below 100 dBA. Any other outdoor
speaker associated with the winery shall be set at or below 60 dBA.
i. Height Standard
No building or structure shall be erected or enlarged to exceed 30 feet in height, except
as allowed by DCC 18.120.040.
J. Zoning Setbacks
Any proposed development shall comply with the setbacks set forth in the Exclusive Farm
Use Zone as prescribed in DCC 18.16.070 (A-D)
K. General Setbacks
In addition to the setbacks set forth herein, any greater setbacks required by applicable
building or structural codes adopted by the State of Oregon and/or the County under DCC
15.04 shall be met.
L. Lighting in the Airport Safety Combining Zone
No Meadery development, or any of the associated Meadery uses, shall imitate airport
lighting or impede the ability of pilots to distinguish between airport lighting and other
lighting.
M. Glare Producing Materials in the Airport Safety Combining Zone
No glare producing material, including but not limited to unpainted metal or reflective glass,
shall be used on the exterior of structures located within an approach surface or on nearby
lands where glare could impede a pilot's vision.
N. Future Meadery Development in the Landscape Management Combining Zone
The applicant shall apply for a Landscape Management Review for any new structure or
substantial exterior alteration of a structure requiring a building permit. A substantial
exterior alteration is defined as exceeding 25 percent in the size or 25 percent of the
assessed value of the structure.
■
the site.
Highlight areas of significance (e.g. portable toilets & pedestrian only areas)
during temporary Winery Related Events.
U. Alteration of a Non -Conforming Structure
The applicant shall receive approval for a non -conforming use alteration if any changes to
height or footprint of the 3,000 square foot farm building/ Meadery building are proposed.
V. Renovation Permitting
For the proposed renovations to the Meadery building, the applicant shall obtain all the
appropriate permitting from the Deschutes County Building Division and the
Environmental Soils Division.
W. Preservation of Landscape and Existing Topography
All trees and shrubs existing on -site, not removed by necessity of the proposed
development, shall be protected, unless lawfully changed/removed by outright uses (such
as farm use) or such change/removal is approved by future land use approvals.
X. Private Well
Prior to the Initiation of Use of any Aspect of the Meadery, the property owners shall
have the well, which provides water to the property and use, reviewed and approved as a
Public Water System by either the Oregon Department of Agriculture (ODA) or the
Deschutes County Environmental Health Department.
Y. Meadery Licensing From Deschutes County Environmental Health Department
Prior to the Initiation of Use of any Aspect of the Meadery, the property owner shall
obtain all necessary permits from the Deschutes County Environmental Health
Department.
Z. Meadery Food Cart/ Mobile Food Unit Licensing
Prior to the Initiation of Service of the Mobile Food Units (MFUs), the property owner
shall obtain all necessary permits from the Deschutes County Environmental Health
Department for the Mobile Food Units (MFUs) operating on the property.
AA. Permanent Food Cart Utility Servicing
Prior to the Initiation of Service of the Permanent Mobile Food Unit (MFU), the
permanent Food Cart (MFU) shall be connected to the on -site septic system, the well, and
a power source on site while providing food and beverage service at the Meadery.
BB. Meadery Septic System Permitting From Deschutes County Onsite Wastewater Division
® Prior to the Initiation of Use for the Mead Production, the property owner shall
obtain all necessary permits from the Deschutes County Onsite Wastewater
Division for the Mead Production facilities.
more than eight feet apart on the average.
® Vegetative ground cover.
C. ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/Redmond/ Bend
Subzone (EFU-TRB) and Multiple Use Agricultural (MUA-10), with a Landscape
Management (LM) combining zone. It is designated Agricultural and Rural Residential
Exception Area by the Deschutes County Comprehensive Plan.
D. PROPOSAL: The Applicant has requested to modify CU-07-76, a conditional use
permit for a commercial activity in conjunction with farm use. The commercial activity
includes the processing of spirits utilizing produce grown onsite and offsite. The farm
use of the property consists of the growing and harvesting of juniper trees for the
flavoring of gin; corn, wheat and/or rye as grains to distill, sugar beets for sugar needed
during the distillation process; and lavender and other herbs as test flavorings for future
products.
This application is to allow modification of the Decision to allow for flexibility in the ratio
of spirits distilled on the property to products cultivated onsite. Specifically, to ensure
compliance with DCC 18.16.040(B), the Hearings Officer imposed Condition 8, which
requires that 25; percent of the gin distillation on the property "shall be. derived from
products cultivated on -site." The applicant seeks to remove this proportionality
requirement.
To the extent CU-07-76 can be read to limit the types of spirits produced on -site to gin,
the applicant is also seeking to modify the approval to allow distillation of other spirits.
E. SITE DESCRIPTION: The subject property is 23.42 acres and slopes gently from east
to west. There is an existing dwelling, barn and outbuildings on the property, which are
accessed from an existing driveway off of Pinehurst Road, which is a paved, County
maintained road. The existing buildings are used for the approved distillery', bottle
storage, and visitor center/tasting facility. There are also irrigated areas on the property
which appear in recent aerial photography to be used for cropland. The property has 8
acres of water rights.
F. SURROUNDING LAND USES: Property to the north of the site, across Highway 20, is
zoned Rural Residential-10 (RR-10), and is developed with residential homesites.
Property to the northeast and southeast are zoned MUA-10 and are developed with
dwellings and small scale farm uses, including grazing, horse pasture and hay. Property
to the south and west are zoned EFU-TRB.
G. PUBLIC COMMENTS: Notice of this application was provided to all property owners
within 750 feet of the exterior boundaries of the subject property. No public comments
were received.
H. REVIEW PERIOD: This application was submitted on November 26, 2013. The
Planning Division deemed this application complete and accepted it for review on
December 26, 2013. The applicant tolled the 150-day clock from January 8, 2104
through January 21, 2014.
I. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several
agencies.
1. Deschutes County Transportation Planner: I have reviewed the transmittal
materials for MC-13-7, which seeks to remove the requirement of CU-07-76
setting a proportion of crops used in distilling that must be grown on -site.
MC-13-7 Page 2
Since the original approval was granted in 2007, the craft distillation business has
experienced significant market growth and diversification, including the spirits distilled by
Bendistiliery. Bendistiiiery, ortginaliy best known fo
increased its vodka line: products (wh ch comprises
oducts, has greatly
atest` olume production at this
tune), is expai ding into whiskey, and may in to future consider other craft distilled
spirits. Bendistillery's market has, annually over the last five years, grown an average of
20 percent. Once a home operation, it now employs 20 employees. While specific
growth statistics do not yet exist for craft distilleries on an industry -wide basis, craft
distillation appears poised to be on a similar trajectory as craft brewing and wineries.
Oregon craft distilleries, which comprise approximately 13 percent of the craft distilleries
nationwide, are also reinforcing Oregon branding as a leading agricultural producer that
generates value-added and high quality products, including estate wines, craft beer and
craft spirits. Even though not all products used in the winery, brewery and spirit
production come from Oregon sources, the emphasis on using local and Oregon
products in the production increases the overall value of Oregon agricultural production
and the spirits themselves.
As noted below, the modification is directed at a discrete aspect of the approval —
Condition 8—which places a proportionality criterion on the amount of on -site products
used in the gin distillation and which has the effect of limiting the use of agricultural
products locally produced offsite. Applicant does not propose a substantially new
proposal. Since the original approval, Applicant has invested in significant agricultural
improvements on the site (see Exhibit D), and the site will continue to be operated as a
distillery in conjunction with on -site agricultural production, along with the tasting room,
offices and ancillary commercial sales. The reasons for the requested modification are
as follows:
1. The production capability of the land is limited by size, water rights, soil capability
and strict quality control standards on the distilled spirits, which quality controls
may require the introduction of other products to assure highest quality
standards.
2. Applicant is planning to produce whiskey as well as gin from, in part, products
grown onsite. Future use of agricultural products in the distillation—, whiskey
may exceed the cProperty's ability to' sustain 'a.requirement of 25 percent of the
distillation, gin being grown" onsite:;
3. Applicant intends to continue combining its agricultural and commercial activities
on the property; however, as the gin distillation component grows, the
proportionality requirements in the ratio of gin distillation volume to produce
cultivated-onsite may limit Applicant' ability to con'iply with Conditi in No 8 of the
Decision aid limit the ability of applicant :to use agricultural products produced
locally offsite,;
Staff finds that a change of circumstances since the issuance of the approval makes it desirable
to make changes to the proposal, as approved. Additionally, to the extent CU-07-76 can be
read to limit the types of spirits produced on -site to gin, the applicant is also seeking to modify
the approval to allow distillation of any spirit, including but not limited to gin, vodka and whiskey.
Staff also finds that these modifications are not being filed as a substitute for an appeal or to
apply for a substantially new proposal or one that would have significant additional impacts on
surrounding properties. No physical changes to the site are proposed at this time. However, if
MC-13-7 Page 4
wheat, rye and other clear grains. In 2011 and 2012, the on -site production increased from
2,000 pounds to 18,000 pounds of clear grain, all of which was used in the distillation of gin.
The additional green houses have been established on site for aromatics, such as lavender and
other herbs, which have been used to flavor products.
B. Chapter 18.16, EXCLUSIVE FARM USE ZONES
1. Section 18.16.030, Conditional Uses Permitted High Value and Nonhigh Value
Farmland.
E. Commercial activities that are in conjunction with farm use, but not
including the processing of farm crops as described in DCC
18.16.025.
FINDING: In File No. CU-07-76, the Hearings Officer approved a distillery, tasting room, offices
and retail sales as commercial activities in conjunction with the farm use on the site, as
described above. The Hearings Officer, based on a review of analogous state case law
concerning wineries, concluded that the distillery operations were very close to the essential
practice of agriculture and qualified as a commercial activity in conjunction with farm use.
Specifically, the Hearings Officer found:
The next question to be answered is whether a distillery is a "farm use" or whether it
constitutes a commercial activity in conjunction with the farm use on the property. A
similar question was asked and answered by the Oregon Supreme Court in Craven v.
Jackson County, 308 Or 281, 779 P2d 1011 (1989). In Craven, the question was
whether a winery, which included a tasting and sales room where wine and winery
related items would be sold was properly categorized as a "farm use" or a "commercial
use in conjunction with farming." The Court analyzed the proposed use, concluding: (1)
growing grapes fell within the definition of "farm use," (2) wineries and tasting rooms are
"accepted farming practices" because they are customarily provided in conjunction with
vineyards. The Court also concluded that ancillary retail sales of nonfarm items, such as
gift bags and corkscrews could be allowed as a commercial activity in conjunction with
farm use, so long as the proposed use enhances the farming enterprises of the local
agricultural community to which the EFU land hosting that commercial activity relates,
and ORS 215.296 (codified at DCC 18.16.40(A)) is satisfied.
Here, the only difference between what the applicant proposes and the winery at issue in
Craven is the alcoholic beverage produced. The applicant's representative testified that
one of the applicant's goals is to introduce "vertical" agricultural marketing to the area, by
demonstrating that the agricultural ingredients for gin can be grown, harvested, distilled
and sold on the same site. In addition, the applicant provided testimony from an
agricultural research scientist, who testified that all of the ingredients proposed to be
cultivated on the site have been or could be grown in Central Oregon, and that the
development of a distillery may encourage other growers in the region to produce crops
that can be used in the distillation process. Further, the applicant testified that he
intends to purchase most of the remaining ingredients from local sources, to emphasize
"local -grown" products. While the activities on the site could fall completely within the
definition of "farm use" as that term was interpreted in Craven, the application requests a
permit for a commercial use in conjunction with farming. See Hiebenthal v. Polk County,
45 Or LUBA 297, 302-303 (2003) (the difference between the uses allowed under the
definition of "farm use" and commercial uses in conjunction with agricultural use is in
degree, not kind.) The evidence is adequate to demonstrate that the proposed use will
MC-13-7 Page 6
conjunction with a farm use of viticulture, be both 'incidental' and subordinate to the
processing and.;seiling activities of the winery." 255 Or App at 651 (emphasis added).
Because the Hearings Officer found that"the only difference between what the Applicant
proposes and the winery at issue in Craven is the alcoholic beverage being produced,"
and concluded that the distillery operations were very close to the essential practice of
agriculture, (CU-07-76, p. 5), there is no State law ,requirem?rat ;that the distillery
operations be both tncidentai :and subordinate ort.to iri►pose a proportionality?limitation
that ensures incidence and subordination.
Staff ,concurs with this analysis. Staff notes that no proportionality limitation between on -site
agricultural production and distillation was previously required under CU-07-76 for this criterion.
However, without the proportionality limitation it is possible that on -site agricultural production
could be discontinued without cessation of distillation, potentially resulting in a commercial
activity in conjunction with no on -site farm use. Under DCC 18.16.040(B), below, the applicant
has proposed two conditions of approval and Staff has imposed one additional condition of
approval:
a. The 8 acres of irrigated land located on site shall remain in active
cultivation directed towards the on -site agricultural production.
b. 100% of the agricultural products grown on site that meet necessary
quality standards shall be used in the distillation/production on site.
c. Notwithstanding, (b), the commercial activity must be in conjunction with
the farm use of the property.
Staff finds that these conditions are sufficient to ensure that the proposed commercial activity,
as modified herein, will continue to be in conjunction farm use.
2. Section 18.16.040, Limitations on Conditional Uses
A. Conditional uses permitted by DCC 18.16.030 may be established
subject to ORS 215.296 and applicable provisions in DCC 18.128 and
upon a finding by the Planning Director or Hearings Body that the
proposed use:
1. Will not force a significant change in accepted farm or forest
practices as defined in ORS 215.203(2)(c) on adjacent lands
devoted to farm or forest uses; and
2. Will not significantly increase the cost of accepted farm or
forest practices on surrounding lands devoted to farm or
forest use; and
3. That the actual site on which the use is to be located is the
least suitable for the production of farm crops or livestock.
FINDING: No physical changes to the site are proposed under this modification. Any
expansion of the facilities of the site would be evaluated under a subsequent site plan review.
Staff finds that the proposed modification does not impact findings of compliance with DCC
18.16.040(A), as made in CU-07-76.
B. A commercial activity allowed under DCC 18.16.030(F) shall be
associated with a farm use occurring on the parcel where the
commercial use is proposed. The commercial activity may use,
process, store or market farm products produced outside of
Deschutes County.
MC-13-7
Page 8
3. The natural and physical features of the site, including, but
not limited to, general topography, natural hazards and
natural resource values.
B. The proposed use shall be compatible with existing and projected
uses on surrounding properties based on the factors listed in (A)
above.
FINDING: No physical changes to the site are proposed under this modification. Any expansion of
the facilities of the site would be evaluated under a subsequent site plan review and/or conditional
use review, as appropriate. Staff finds that the proposed modification does not impact findings of
compliance with these criteria, as made in CU-07-76.
V. CONCLUSION:
Based on the foregoing Basic and Conclusionary Findings, Staff concludes that the proposed
project can meet all applicable criteria for approval. Other permits may be required. The
applicant is responsible for obtaining any necessary permits from the Deschutes County
Building Division, the Deschutes County Environmental Soils Division and the Deschutes
County Road Department, as well as any required state and federal permits.
VI. DECISION:
APPROVAL, subject to the following conditions of approval
VII. CONDITIONS OF APPROVAL:
This approval is based upon the information submitted by the applicant. Any substantial
change will require a new application.
2. All conditions of approval from prior land use approvals for the subject property remain in
effect, except as specified below.
3. CU-07-76 Condition of Approval #8 is modified as follows.
a. The 8 acres of irrigated land located on site shall remain in active cultivation
directed towards the on -site agricultural production.
b. 100% of the agricultural products grown on site that meet necessary quality
standards shall be used in the distillation/production on site.
c. Notwithstanding, (b), the commercial activity must be in conjunction with the
farm use of the property.
6. The commercial activity may use, process, store or market farm products, as specified in
this decision, produced within or outside of Deschutes County.
7. Distillation of any spirit, including but not limited to gin, vodka, and whiskey, is allowed.
MC-13-7 Page 10
i=US EN',PURaPasEo DUI
6/30201
SECTION 25 T 16S. R.11 E. W.M.
DESCHUTES COUNTY
1611 2500
3002
203
1611 2500
Deschutes County
Oregon, 2017
Page 2
Market Value of Agricultural Products Sold
Total
Crops
Grains, oilseeds, dry beans, dry peas
Tobacco
Cotton and cottonseed
Sales
($1,000)
28,769
16,543
822
Vegetables, melons, potatoes, sweet potatoes 1,720
Fruits, tree nuts, berries 39
Nursery, greenhouse, floriculture, sod 3,905
Cultivated Christmas trees, short rotation
woody crops 7
Other crops and hay 10,051
Livestock, poultry, and products
Poultry and eggs
Cattle and calves
Milk from cows
Hogs and pigs
Sheep, goats, wool, mohair, milk
Horses, ponies, mules, burros, donkeys
Aquaculture
Other animals and animal products
12,226
177
8,851
(D)
156
494
1,508
(D)
120
Rank Counties
in Producing
State b Item
29
26
20
18
29
13
20
19
25
15
20
18
8
15
2
24
19
36
36
34
36
35
34
24
36
36
36
36
27
35
36
35
27
34
Rank Counties
in Producing
U.S. b Item
2,168 3,077
1,773 3,073
2,163 2,916
323
647
601 2,821
1,602 2,748
434 2,601
563 1,384
248 3,040
1,985 3,073
917 3,007
1,335 3,055
947 1,892
796 2,856
340 2,984
112 2,970
(D) 1,251
694 2,878
Total Producers c 2,657
Sex
Male
Female
Age
<35
35-64
65 and older
Race
American Indian/Alaska Native
Asian
Black or African American
Native Hawaiian/Pacific Islander
White
More than one race
Other characteristics
Hispanic, Latino, Spanish origin
'With military service
New and beginning farmers
1,385
1,272
184
1,588
885
8
14
4
2,592
39
46
341
978
Percent of farms that:
Have internet
access
Farm
organically
Sell directly to
consumers
Hire
farm labor
Are family
farms
93
1
15
20
98
Top Crops in Acres d
Forage (hay/haylage), all
Wheat for grain, all
Canola
Chickpeas
Field/grass seed crops, all
22,460
1,092
(D)
335
284
Livestock Inventory (Dec 31, 2017)
Broilers and other
meat -type chickens
Cattle and calves
Goats
Hogs and pigs
Horses and ponies
Layers
Pullets
Sheep and lambs
Turkeys
514
13,895
2,033
564
3,591
7,467
414
1,567
305
See 2017 Census of Agriculture, U.S. Summary and State Data, for complete footnotes, explanations, definitions, commodity descriptions, and
methodology.
May not add to 100% due to rounding. bAmong counties whose rank can be displayed. °Data collected for a maximum of four producers per farm.
d Crop commodity names may be shortened; see full names at www.nass.usda.gov/go/cropnames.pdf. e Position below the line does not indicate rank.
(D) Withheld to avoid disclosing data for individual operations. (NA) Not available. (Z) Less than half of the unit shown. (-) Represents zero.
p r, and Ie
Anthony Raguine
From: Nathaniel Miller
Sent: Wednesday, January 25, 2023 11:57 AM
To: Jacob Ripper; Anthony Raguine
Subject: FW: Application File Nos. 247-22-000024-CU and 247-22-000025-SP
Attachments: Final_COLW_LazyZ_10.26.22.pdf
FYI
Nathaniel Miller, AICP I Associate Planner
Daesc.hutes County Community Development
117 NW Lafayette Ave I Bend, Oregon 97703
Tel: (541) 317-3164 I www.deschutes.org/cd
Let us know how we're doing: Customer Feedback Survey
Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to
constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person
From: Rory Isbell <rory@colw.org>
Sent: Wednesday, January 25, 2023 11:55 AM
To: Nathaniel Miller <Nathaniel.Miller@deschutes.org>; William Groves <William.Groves@deschutes.org>
Subject: Application File Nos. 247-22-000024-CU and 247-22-000025-SP
[EXTERNAL EMAIL]
Hello Nathaniel and Will,
Central Oregon LandWatch submits this comment to the Board of County Commissioners for today's hearing
on Application File Nos. 247-22-000024-CU and 247-22-000025-SP. LandWatch does not oppose the
application so long as the applicant's proposed conditions of approval are adopted in a final decision by the
Board.
If the applicant's proposed conditions of approval are not adopted in a final decision by the Board, then
LandWatch renews its comments against this application, which the Hearings Officer agreed with, attached
here.
Regards,
Rory Isbell
Rory Isbell (he/him)
Staff Attorney & Rural Lands Program Manager
Central Oregon LandWatch
1
LANDWATCH
October 26, 2022
filed via hand delivery and email: nathaniel.miller@deschutes.org
Deschutes County Hearings Officer
c/o Nathaniel Miller, Associate Planner
1300 NW Wall Street
Bend, OR 97703
Re: Application File No. 247-22-000024-CU and 247-22-000025-SP (Lazy Z Ranch)
Dear Hearings Officer:
www.colw.org
Thank you for the opportunity to comrnent on the administrative decision approving the
above -referenced application. Central Oregon LandWatch ("LandWatch") is opposed to this
administrative decision, which errs in approving several commercial activities on an 83.5-acre
property in the County's Exclusive .Farm Use zone.
i. introduction
LandWatch is a strong supporter of our regional agricultural economy and the
preservation of the maximum amount of agricultural land, consistent with the state's agricultural
land use policy at ORS 215.243. Protecting agricultural land for agricultural uses lies at the heart
of Oregon's statewide land use planning system. Achieving these policy aims requires setting
strict sideboards and limitations on nonfarm uses of agricultural land. Without doing so, we risk
the conversion of agricultural land, both through direct displacement of land and through the
market speculation that arises when nonfarm uses are perceived as allowed on EFU land. It is
these concerns that motivate our opposition to the County's administrative decision in this case.
To be clear, we are adamant supporters of fanning in Deschutes County, which includes
beekeeping, honey production, and honey products processing. As we explain below, the
administrative decision here approves an array of commercial activities that would be out of
balance with any farm uses on the subject property, and is disallowed by Oregon law.
1
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LAN D WATC H
OR 94d0
3�
www.coew.org
215.243(2). Craven v. Jackson County, 94 Or App 49, 54, 764 P2d 931 (1988), affd, 308 Or
281, 779 P2d 1011 (1989).
Supporting the local agricultural enterprise is not an abstract or generalized requirement.
Instead, a commercial activity in conjunction with farm use "must be either exclusively or
primarily a customer or supplier of faun uses." Friends of Marion County, 2022 WL 1585557 at
9 (citing City of Sandy v. Clackamas County, 28 Or LUBA 316, 321 (1994)).
i. Incidental and subordinate
Commercial activities must be "both incidental and subordinate to the processing and
selling activities" of the farm use. Friends of Yamhill Cnty. v. Yamhill Cnty., 255 Or App 636,
651, 298 P3d 586, 594 (2013). "[T]he phrase `incidental and subordinate to' means more than
that the accessory use occurs less frequently than the primary use. Although frequency is one
factor in comparing the main and accessory uses, the related concepts of `incidental' and
`subordinate' reflect a conclusion about predominant use in light of many relevant factors,
including the nature, intensity, and economic value of the respective uses." Friends of Yanahill
County. v. Yamhill County., 301 Or App 726, 735, 458 P3d 1130, 1135 (2020). "The inquiry
involves a consideration of any relevant circumstances, including the nature, intensity, and
economic value of the respective uses, that bear on whether the existing commercial farm use
remains the predominant use of the tract." Id. at 739.
ii. Enhance the local agricultural community
"[T]o be in conjunction with farm use,' the commercial activity must enhance the
farming enterprises of the local agricultural community to which the EFU land hosting that
commercial activity relates. The agricultural and commercial activities must occur together in the
local community to satisfy the statute." Craven v. Jackson Cnty., 308 Or 281, 289, 779 P2d
1011, 1015 (1989).
LUBA explained this standard in a case where an applicant sought commercial activities
that were only tangentially related to agriculture:
"even if a commercial activity primarily sells to farm uses, that may not be sufficient to
allow the commercial activity to qualify as a commercial activity in conjunction with
farm use. There is a second inquiry that must be satisfied. The products and services
provided must be `essential to the practice of agriculture.' While faiiniers must eat and
farm equipment frequently operates on gasoline, that is not sufficient to make grocery
3
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CENTAL OREGON
LAN D WATC H
www.colw.org
produced over one season. Revised Burden of Proof, March 18, 2022 at 5. An inquiry into the
nature and intensity of the respective uses must be made, which would compare the intensity of
this amount of farm use to that of the proposed commercial activities, but the administrative
decision fails to make this inquiry. Id.
Another illustration of how the commercial activities approved by the administrative
decision would overtake any farm uses is a comparison of the number of employees. The
application materials state that "[w]e do not currently have any employees for the farm" and that
"[i]t is hoped that one day we will generate enough income to hire one farm hand." Applicant's
August 7, 2022 submittal at 2. Meanwhile, the administrative decision approves "up to 4
employees" for winery operations and "up to 5 employees" for winery related events, in addition
to "up to 4 employees" for food carts. Administrative decision at 15-16.2
Oregon law is clear that the ratio of intensive commercial activities to farm uses that the
administrative decision here approves is not allowed as a commercial activity in conjunction
with farm use, because they would not be incidental and subordinate.
These seven commercial activities would also not support the local agricultural
enterprise. It is not enough that the commercial activities might be "associated" or even
tangentially "supportive" of agriculture, as the administrative decision repeatedly finds.
Administrative decision at 15-21. Instead of being commercial activities that would "be
exclusively or primarily a customer or supplier of farm uses," Friends of Marion 2022 WL
1585557 at 9, these commercial activities would primarily serve tourists and other non -farmers.
The proposed mead tasting, sales, food carts, tours, and events are not needed to support
farm uses in the County's agricultural enterprise. To use the language of LUBA, "while farmers
must eat," that is not sufficient to make commercial activities in conjunction with farm use. The
mead tasting, sales, food carts, tours, and events that this decision approves are not "essential to
the practice of agriculture," which is what the law requires. Friends of Marion County, 2022
WL 1585557 at 9.
2 The administrative decision's findings and the application also appear to characterize the
proposed commercial activities and events as agri-tourism. Administrative decision at 21. The
application is not for an agri-tourism permit, which is a separate use conditionally permitted on
EFU land. ORS 215.283(4)-(6). Any findings related to agri-tourism are inadequate.
5
LAN DWATC H
www.colw.org
as "hay" or "grazing of horses," and the type of dwelling present on properties in the study area.
Administrative decision at 22-24. Without more detailed information about the fauns and farm
practices in the area that the proposed commercial activities could impact, it is impossible to
determine what those impacts might be.
The decision also fails to demonstrate that it will not force significant changes to farming
practices, or increase the cost of farm practices. Aside from general descriptions of distances
and landscape features (buildings, roads) that might buffer neighboring farms from the proposed
commercial uses, and a description of noise impacts, there is no analysis of how traffic, dust,
trespass, visual impacts, solid waste generation, etc. could impact farm practices. Administrative
decision at 24-25. The fare impacts test requires more, especially considering the scale and
intensity of the commercial activities this administrative decision approves.
VI. Conclusion
Many aspects of the beekeeping, honey production, agricultural land stewardship that this
application describe are laudable. The County's administrative decision approving a host of
commercial uses, however, is counter to Oregon law that protects the limited supply of
agricultural land for agricultural uses. Commercial uses belong inside urban growth boundaries.
The City of Sisters UGB is 0.35 miles away from the subject property, and it contains plenty of
land planned and zoned for commercial uses, where this application's proposed commercial
activities would be appropriate.
Thank you for your attention to these views. Please alert us of any decisions or further
opportunities for comment on this file number.
Regards,
Rory Isbell
Rural Lands Program Manager and Staff Attorney
Central Oregon LandWatch
2843 NW Lolo Drive, Suite 200
Bend, Oregon 97703
(541) 647-2930
rory@colw.org
7
Y tCOT
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BOARD OF COUNTY COMMISSIONERS
January 25, 2023
XXXXX
900 Court St., NE, XXXX
Salem, Oregon 97301
RE: Support for Deschutes County Courthouse Expansion
Dear XXXX:
We're writing to ask for your support and partnership to expand the Deschutes County Courthouse, which
houses the State Circuit Court for the 11t" Judicial District. In the past year, due to inflation and cost escalation,
our project costs have increased from an estimated $27 million to close to $40.5 million.
We are requesting a $25 million investment from the State to support this critical project, which will add
more than 60,000 square feet to our current facility through a 3-story addition, including new
courtrooms and secure basement -level parking.
The key focus areas of this project are improving security, providing additional courtroom space for the
two new judges that were approved by the legislature in 2021, new attorney -client conference rooms,
and expanded access for participation in court proceedings. Our current court facility minimally meets
current space needs for services and doesn't accommodate our two new judges.
Our project design will position Deschutes County to be flexible and responsive to future growth with a
third floor shell space that can easily be converted into two future courtrooms and in the short term,
can be used as office space to accommodate key Court and community partners.
The project will also provide expanded space for Court Administration, whose staffing needs have
grown to accommodate remote proceedings and dare currently split between two locations. Expanding
that space within the courthouse will allow staff to consolidate in one location and will position us to
provide additional space to accommodate the District Attorney's Office.
During the past five years, the legislature has approved $246 million for courthouse replacements and
improvements across the state. More than 95 percent of those funds have been allocated to counties
west of the Cascades. As you know, Deschutes County is growing more rapidly than Clackamas, Benton
and Columbia counties, all of whom received State investments in county -owned circuit court facilities
during the 2021 - 2023 biennium. This key project is a critical step in helping us meet the needs of our
growing region.
1300 NW Wall Street Bend, Oregon 97703
t (541) 388-6571 @ board@deschutes .org ? x www.deschutes.org
While we are incredibly grateful for the $1.5 million we received for this project in the last legislative
session, we are hoping to partner with the State on this project. We are currently in engaged in the
schematic design stage of this project and estimate that construction will be completed in 2026.
Please feel free to contact us for more information.
Sincerely,
The Deschutes County Board of Commissioners
Anthony DeBone, Chair
Patti Adair, Vice -Chair Phil Chang, Commissioner
2023-25 CAPITAL FUNDING REQUEST
PROJECT INFORMATION FORM
Legislative Fiscal Office
900 Court St. NE, H-178
Salem, OR 97301
CONTACT INFORMATION FOR RECIPIENT ORGANIZATION
Legal Name Deschutes County
Organization Type County Federal Tax ID Number 93-6002292
Address 1300 NW Wall Street, PO Box 6005
City Bend State OR
Contact Person Whitney Hale
Zip Code 97708
Contact Phone (541) 388-6570 Contact Email whitney.hale@deschutes.org
PROJECT INFORMATION
Project Name Deschutes County Courthouse Expansion
Project Description
Deschutes County has launched a project to expand the Deschutes County Courthouse, which houses the State Circuit Court for the 11th Judicial District. Our
current court facility minimally meets current space needs for services and doesn't accommodate our two new judges.
The project will include a 3-story addition to the existing Deschutes County Courthouse. It will result in the addition of two additional courtrooms, expanded
space for Court Administration, basement level secure parking and secure sally port for in -custody transport. In the past year, due to inflation and cost escalation,
project costs have increased from an estimated $27 million to close to $40.5 million.
Key focus areas of the project are improving security, providing additional courtroom space for the two new judges that were approved by the legislature in 2021,
new attorney -client conference rooms, and expanded access for participation in court proceedings.
Project Location 1100 NW Bond, Bend, Oregon
Project Schedule (Please describe the project's readiness, including planned start and end dates
and any remaining permits, approvals, or other steps that must be completed prior to beginning.)
Selection of the project team including owner's representative, architect, and Construction
Manager/General Contractor was completed in spring of 2022 and programming began in July of
2022. A pre -application meeting with the City of Bend Community Development Department was
completed in December of 2022. Schematic design is currently underway with building permit
submittal anticipated in late summer 2023. Dependent upon permit review timelines, construction
start is planned for winter/spring 2024 with completion in late 2025 to early 2026.
PROJECT BUDGET
Estimated Project Cost
Construction/Renovation 30,500,000
Site Improvements 1,000,000
Land Acquisition 0
Arrhitartural arid Fngine ring Fepc 4,000,000
Equipment 600,000
Contingencies 3,400,000
Other Costs (specify) Permits & System Development Charges 750,000
Other Costs (specify) Miscellaneous Owner Costs 250,000
40,500,000
Estimated Total Project Costs
%"� Itl11l roil 62%
Amount Requested ��a9 Percent of Totai Project Cost
Type of Funding Requested GO Bond -'State Property (Article XI-Q)
Matching Funds
State Funds (source) 2022 Legislative Session
Federal Funds (source)
Private/Other Grants
Donations/Gifts
Other Revenues/Financing (source) County Funding
Other Revenues/Financing (source)
Total Matching Funds
OTHER INFORMATION
1,500,000
14,000,000
15,500,000
Grants financed through the issuance of bonds are not available until bonds are sold. Multiple factors
impact the timing of sales; however, many sales often occur during the last six months of the biennium
(Oregon's biennial budget begins on July 1 of odd -numbered years and runs through June 30 of the next
odd -numbered year). Significant decreases in revenues or changes in financial conditions subsequent to
authorization may also delay or prevent the issuance of bonds, which means that the approved projects
or grants would also be delayed or not funded.
Public works projects, including any project that uses $750,000 or more of public funds for constructing,
reconstructing, painting or performing a major renovation on a road, highway, building, structure or
improvement of any type, may be subject prevailing wage requirements. Grant recipients must comply
with prevailing wage rate laws and should consult the Oregon Bureau of Labor and Industries to
determine whether a project is subject to prevailing wage.
Please return the completed form and any supporting documentation to:
Walt Campbell, Principal Legislative (Bonds) Analyst
waft.campbell@oregonlegislature.gov
BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, JANUARY 25, 2023
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall St - Bend
(541) 388-6570 I www.deschutes.org
AGENDA
MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and
can be accessed and attended in person or remotely, with the exception of any executive session.
Members of the public may view the meeting in real time via the public meeting portal at
www.deschutes.org/meetings. To view the meeting via Zoom, see below.
Citizen Input: The public may comment on any meeting topic that is not on the current agenda. To
provide citizen input, submit an email to citizeninput@deschutes.org or leave a voice message at
541-385-1734. Citizen input received by noon on Tuesday will be included in the meeting record for
topics that are not on the Wednesday agenda.
If in -person comment from the public is allowed at the meeting, public comment will also be allowed
via computer, phone or other virtual means.
Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer.
• To join the meeting from a computer, copy and paste this link: bit.ly/3h3ogdD.
• To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *6 to indicate you would like to speak and
*9 to unmute yourself when you are called on.
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, call (541) 388-6572 or
email brenda.fritsvold@deschutes.org.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: Citizen Input may be provided as comment on any topic that is not on the
agenda.
Note: In addition to the option of providing in -person comments at the meeting, citizen input comments
may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be
timely, citizen input must be received by noon on Tuesday in order to be included in the meeting record.
CONSENT AGENDA
1. Consideration of Board Signature on letter appointing Bill Shurte for service on the
Pinewood Country Estates Special Road District.
2. Open new checking account with First Interstate Bank for use by the Deschutes County
Sheriff's Office.
3. Approval of the BOCC meeting minutes of January 4, 2023
ACTION ITEMS
4. 9:05 AM Recognition of Deputy Herrmann's 25 Years of Service with the Deschutes
County Sheriff's Office
5. 9:10 AM Board direction relative to the exclusion of certain candidate landfill sites
from consideration in accordance with Federal Aviation Administration
recommendations
6. 9:40 AM Special Project Grant Status Update - Friends of the Children
7. 9:55 AM Special Project Grant Status Update - Deschutes Collaborative Forest Project
8. 10:10 AM Special Project Grant Status Update - Deschutes Basin Water Collaborative
9. 10:25 AM Resolution No. 2023-004, converting a limited duration Health Educator II
position to regular duration
10. 10:35 AM Request Board approval of Document Number 2023-087, an agreement with
Bethlehem Inn for emergency shelter access and client stabilization services
January 25, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
11. 10:45 AM Consideration of Chair Signature of Document No. 2023-079, amending an
agreement with Oregon Health Authority for tobacco prevention and
cessation efforts, and a resolution formalizing how these grant funds will be
expended
12. 11:00 AM Planning Division Work Plan Update / Long Range Planning / FY 2022-2023
LUNCH RECESS
13. 1:00 PM Public Hearing: A Commercial Activity in Conjunction with Farm Use
(Meadery) in the Exclusive Farm Use Zone
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.
14. Executive Session under ORS 192.660 (2) (d) Labor Negotiations
ADJOURN
January 25, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3