2001-761-Ordinance No. 2001-033 Recorded 10/11/2001H COUNTY OFFICIAL
MARY SUE SPENNOLLOW, COUNTYCLERKCJ 1001'161
RE IEWED COMMISSIONERS ' JOURNAL
10/11/200103:52:21 PM
Li AL COUNSEL
REVIEWED
CODE REVIEW COMMITTEE
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Sections 18.120.040,
Building Height Exceptions, and 18.04.030,
Definition — Agricultural Structure, of Title 18,
Zoning Ordinance, of the Deschutes County
Code.
ORDINANCE NO. 2001-033
WHEREAS, currently, in most of Deschutes County, a structure cannot be higher than
30 feet in height. An exception process allows structures up to 36 feet in height subject to a land
use permit applying certain criteria including view protection. However, certain agricultural
structures that are exempt from building permits have an exemption from certain height
restrictions and there is currently no limit on their height; and
WHEREAS, concerns were brought forward by citizens who were interested in
protecting scenic views within Deschutes County; and
WHEREAS, in 1995 Deschutes County enacted a "right to farm" ordinance (95-024) to
protect farm and forest -based activites and practices and define what are generally accepted,
reasonable and prudent farm practices/uses within the agricultural community.
WHEREAS, in July 2000 the Deschutes County Planning Commission and the Board of
County Commissioners (Board) held a joint meeting to discuss the Deschutes County Zoning
Ordinance, Section 18.120.040, Building Height Exceptions. After numerous work sessions and
public hearings, the Board determined that additional information was needed to make a final
decision; and
WHEREAS, the Planning Commission held a public hearing on July 12, 2001, continued
on August 9, 2001, to obtain additional information and after considering testimony from the
public and interested parties, agreed to forward a recommendation to the Board to reduce the
allowable height for certain agricultural structures; and
WHEREAS, after a notice was given and a public hearing was conducted on September
25, 2001, before the Board in accordance with applicable law, the Board has considered the
Planning Commission's recommendation; and
WHEREAS, the attached proposed amendments to 18.120.040 provide protection for the
right to farm while addressing the need for height restrictions; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. AMENDMENT. Section 18.120.040, Building height exceptions, of the
Deschutes County Code, is amended to read as shown in Exhibit "A," attached hereto and by this
PAGE 1 of - ORDINANCE NO. 2001-033 (10/10/2001)
reference incorporated herein, with new language underlined and deleted language shown in
Section 2. AMENDMENT. Section 18.04.030, Definitions, of the Deschutes County
Code, is amended to read as shown in Exhibit `B," attached hereto and by this reference
incorporated herein, with new language underlined.
DATED this%�day of S er, 2001. )
BOARD OF COUNTY COMMIS�"RS OF
DESCHUTES COUNTY, OREC,
TOMD OLF, Chair
ATTEST: D IS R. LUKE, Commissioner
-' — V6 tc,
Recording Secretary MICHAEL M. DALY, Commissioner
PAGE 2 of 2 - ORDINANCE NO. 2001-033 (10/10/2001)
EXHIBIT "A"
18.120.040. Building height exceptions.
A. The following structures or structural
parts are not subject to the building
height limitations of DCC Title 18:
chimneys not more than three feet six
inches (3'6") above the highest point of
the roof, vertical support structures for
telephone and power transmission lines
in utility easements or public rights-of-
way, not requiring a site plan review as
defined in the—DCC 18.124.060,
flagpoles not exceeding forty (40) feet,
and agricultural structures as defined in
this ordinanee—DCC 18.04.030 not
exceeding thirty-six 36) feet. This
exception does not apply to an Airport
Development Zone, or Landscape
Management Combining Zone.
B. The following structures or structural
parts may receive exceptions to the
building height limitations of Title 18 if
approved as part of a Site Plan Review,
as defined in the DCC 18.124.060 and
subject to the criteria contained therein,
public schools, vertical support
structures for telephone and power
transmission lines requiring a site plan,
structures that are necessary for public
safety and flagpoles. This exception
does not supercede the more restrictive
requirements that are found in the
Airport Safety Combining Zone or
Landscape Management Combining
Zone.
C. An exception (up to 36 feet) to the
building height limitations for structures
not otherwise exempted by DCC
18.120.040(A) may be approved upon
findings that:
1. The structure is not located in a
Landscape Management Zone,
except when the structure is a
single-family dwelling with an
attached hangar located in an
unincorporated community and the
structure has a maximum height of
35 feet including chimneys,
antennas, flagpoles or other
projections from the roof of the
structure;
2. The structure is not located within
100 feet of any rim rock, as defined
in DCC 18.04.030;
3. After consultation with the applicable
fire department, the proposed height
does not exceed the height
limitation of the department's fire
fighting equipment, considering the
evacuation of the building's
occupants and the fire fighting
requirements of the Department; and
4. The proposed additional height will
not adversely impact scenic views
from existing nearby residences.
5. The proposed structure shall relate
harmoniously to the natural
environment and existing
development, minimizing visual
impacts and preserving natural
features including views and
topographical features.
.D. An exception to building height
limitations for agricultural structures
may be approved upon findings that the
applicant meets the criteria listed in
DCC 18.120.040(C)(1) through (3) and
demonstrates that the proposed structure
is:
1. an agricultural structure as defined
in DCC 18.04.030
2. located in an EFU or Forest zone:
and
3. necessary to conductgeneral]y
accepted farming_ practices that are
typical or customary of Deschutes
County farmers who are regular]
involved in the proposed We of
agriculture. The applicant shall
document satisfaction of this
criterion by submitting evidence or
testimony from an authorized
Page 1 of 2 — EXHIBIT "A" TO ORDINANCE NO. 2001-033 (10/10/01)
representative of the Deschutes
County Farm Bureau.
(Ord. 2001-033 §1, 2001; Ord 2001-004 §1,
2001; Ord. 2001-016 § 2, 2001; Ord. 98- 035 §
1, 1998; Ord. 96-035 § 1, 1996; Ord. 93-043 §
20C, 1993; Ord. 92- 055 § 10, 1992; Ord. 92-
036 § 1, 1992)
Page 2 of 2 — EXHIBIT "A" TO ORDINANCE NO. 2001-033 (10/10/01)
EXHIBIT `B"
Section 18.04.030
"Agricultural structure" means any structure
considered to be an _`agriculturalstm•�e
building" under the State bBuilding
eedeCode Section 326) as referenced in
DCC 15.04.010. and is (1) located on a
parcel that is at least 20 acres in size and
contains at least 8.5 irrigated acres, or (2) a
parcel that is at least 80 acres in size,
regardless of irrigation.
(Ord. 2001-033 § 2, 2001; Ord. 2001-016
§ 2, 2001; Ord. 92-034 § 1, 1992)
Page 1 of I — EXHIBIT `B" TO ORDINANCE NO. 2001-033 (10/10/01)
ATTACHMENT A
AGRICULTURAL EXEMPTIONS - HEIGHT
12.0
12.0
23
10.0
17.0
22.0
24.5
30.0
27.0
23.0
23
14.8
8.0
12.0
14
26.0
14.0
28.0
17.6
18.0
23.6
15.0
13
18.0
12.0
12.0
16
18.0
12.0
16.0
16
26.0
36.0
18.0
48
14.0
12.2
22.0
23
14.0
13.0
12.0
14
12.0
17.0
13.0
27.6
12.0
12.8
20.0
21
12.0
10.0
20.0
16
19.0
20.0
13.0
16
19.0
8.0
19.0
19
26.0
15.3
19.6
16
21.0
23.0
15
15.0
30.0
26.5
14.6
19.0
25
16.0
27.0
18
15.0
16.0
23
19.0
27.0
16
18.0
13.0
16
30.0
18.0
22.8
12.0
21.0
10
23.0
27.0
10
24.0
26.0
11
18.0
16.0
8
20.0
12.0
9
18.00
23.6
10
25.0
11.0
17.6
16.0
15.0
12
36.0
18.0
24
18.0
22.0
18
20.6
18.0
16
16.0
28
28.0
24.0
22.0
11.6
11.6
11.6
20.0
23.0
25.0
21.0
22.0
16.0
14.8
28.0
15.0
15.0
14.6
14.6
38.0
17.0
8.0
28.0
21.0
24.0
10.0
16.0
15.0
26.0'
10.0
20.0
18.0
17.0
28.0
18.0
16.0
24.0
14.0
15.0
16.0
16.0
16.0
14.0
17.5
10.0
20.0
16.0
10.0
21.6
23.0
18.0
21.0
21.0
48.0
14.0
20.0
10.0
14.0
12.0
36.0
STAFF REPORT
File Number TA -00-010
Ordinance No. 2001-033
HEARING DATE: September 25, 2001 at 3:00 p.m.
Board of County Commissioners Hearing Room
Administration Building — 1130 NW Harriman Street
Bend, Oregon 97701-1947
APPLICANT: Deschutes County
SUBJECT: Text Amendment to the Deschutes County Code Title 18, Building
Height exceptions (Section 18.120.040 of the zoning ordinance) to
consider changes to the allowable height of some agricultural barns/
structures and windmills used to generate power for non-farm uses.
Staff Planners: George Read, Director
Christy Morgan, Assistant Planner
Currently, in most of Deschutes County, a structure cannot be higher than 30 feet in height.
An exception process allows structures up to 36 feet in height subject to public notice.
However certain agricultural structures that are located on a "farm" are exempt from building
permits and all height restrictions. Attachment A is a representative list of agricultural
exemptions that have been issued by Deschutes County from 1997-2001.
The County Building Official has adopted a definition of "farm" to include all parcels of 80
acres in size and parcels of 20 acres in size with at least 8.5 acres of irrigation. Agricultural
structures on farms of this size or larger are entitled to an outright exemption from height
restrictions and can therefore be any height.
In addition, Deschutes County enacted a "right to farm" ordinance in 1995, to protect farm
and forest -based economically productive activities in the County in order to assure the
continued health, safety, and prosperity of its residents (See Chapter 9.12 Right to Farm,
attached). This ordinance defines and protects farm activities and practices that are
generally accepted, reasonable and prudent within the agricultural community. In
determining whether any particular farming or forest practice is a generally accepted,
reasonable and prudent practice, the "right to farm" ordinance states that County staff may
seek the advice of an expert or experts in the particular practice involved from a list of
experts provided by the Deschutes County Farm Bureau for each commodity or practices
area.
In July 2000, the Deschutes County Planning Commission and Board of County
Commissioners held a joint meeting to discuss the Deschutes County Zoning Ordinance,
Section 18.120.040, Building Height Exceptions. This meeting was held in response to
concerns brought forward by citizens who were interested in protecting scenic views within
the County. After numerous work sessions and public hearings, the Board of
Staff Report -TA -00-010
Commissioners determined that additional information was needed to make a final decision
specifically on the following two issues:
1) Should a height restriction be placed on certain agricultural bams/structures?
2) Should the allowable height be increased for windmills used to generate power for
non-farm uses?
The Deschutes County Planning Commission conducted an additional public hearing on
July 12, 2001, that was continued on August 9, 2001. Based on the testimony presented at
these hearings, the Planning Commission voted on August 9, 2001, to forward the following
recommendations to the Board of County Commissioners:
1. Allow agricultural structures up to 36' outright.
2. Allow agricultural structures above 36' if the applicant meets certain criteria to
demonstrate that the structure will be located in an EFU/Forest zone, is an
"agricultural structure" as defined in proposed DCC Section 18.04.060 (Exhibit B),
will be using the structure for an accepted farm use as defined in DCC Section
18.04.030, and will be using generally accepted farming practices as defined in DCC
Sections 9.12.045 and 9.12.060. Planning staff recommends that the burden of
proof fall on the applicant to document that the agricultural structure will be used for
an accepted farm use, using generallly accepted farming practices by submitting
evidence or testimony from an authorized representative of the Deschutes County
Farm Bureau.
3. Do not allow windmills for non-agricultural uses to be taller than 30', or 36' with an
exception. Windmills for agricultural uses would be allowed as defined
recommendations in 1 and 2 above.
4. Require public hearing for agricultural structure exceptions.
STAFF RECOMMENDATION
Staff recommends the Board of County Commissioners take the following actions:
1. Conduct a public hearing on September 25, 2001, on the proposed Ordinance
2001-033.
2. Consider testimony received on this proposal submitted at the hearing and before
the close of the record.
3. Adopt the proposed ordinance with revisions ' based on issues raised or
changes proposed through public testimony.
Attachments:
1. Attachment A — Agricultural Height Exemptions
2. Right to Farm Ordinance
3. Ordinance 2001-033
4. Exhibit A to Ordinance 2001-033
5. Exhibit B to Ordinance 2001-033
Staff Report -TA -00-010
Chapter 9.12. RIGHT TO FARM
9.12.010.
Short title.
9.12.020.
Purpose.
9.12.030.
Definitions.
9.12.035.
Definition -Facility.
9.12.040.
Definition -Farming.
9.12.045.
Definition -Farming practice.
9.12.050.
Definition -Forest practice.
9.12.055.
Definition-Nonresource use.
9.12.060.
Definition -Generally accepted.
9.12.065.
Definition -Farming and forest
practices exclusions.
9.12.070.
Definition -Nuisance or trespass.
9.12.075.
Definition -Pesticide.
9.12.080.
Prohibition on enactments that
make farm and forest uses a
nuisance or trespass.
9.12.090.
Protection of farm and forest uses
on lands zoned for resource use.
9.12.100.
Protection of allowed farm and
forest uses in zones other than
EFU and forest zones.
9.12.110.
Protection of nonconforming
farm and forest uses.
9.12.120.
Land use ordinances and
decisions.
9.12.130.
Complaints by nonresource users.
9.12.140.
Farm practices advisory list.
9.12.150.
Affect on livestock control
districts.
9.12.010. Short title.
This ordinance may be cited as the Deschutes
County Right To Farm Ordinance.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 1, 1995)
9.12.020. Purpose.
A. It is the purpose of DCC 9.12 to protect farm
and forest -based economically productive
activities of Deschutes County in order to
assure the continued health, safety and
prosperity of its residents. Farm and forest
uses sometimes offend, annoy, interfere with
or otherwise affect others located on or near
farm and forest lands. Deschutes County has
concluded in conformance with ORS chapter
30 that persons located on or near farm and
forest lands must accept resource uses and
management_ practices. _
B. DCC 9.12 is intended to limit the availability
of remedies based on nuisance or trespass,
rights of action and claims for relief and
issuance of citations for infractions over
which Deschutes County has jurisdiction,
when they otherwise would either have an
adverse impact on farm and forest uses that
Deschutes County seeks to protect, or would
impair full use of the farm and forest resource
base within Deschutes County.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 2, 1995)
9.12.030. Definitions.
For the purposes of DCC 9.12, unless otherwise
apparent from the context, certain words and
phrases used in DCC 9.12 are defined as set forth
in DCC 9.1.2.035-075.
(Ord. 2001-016 § 2, 2001; Ord. 95-033 § 1, 1995;
Ord. 95-024 § 3, 1995)
9.12.035. Definition -Facility.
"Facility" means any real or personal property,
including appurtenances thereto and fixtures
thereon, associated with a given use.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.040. Definition -Farming.
"Farming" means the cultivation, growing,
harvesting, processing or selling of plants or
animals of any kind that lawfully may be grown,
possessed and sold, including but not limited to
forage, row crops, grapes, Christmas trees and
nursery stock, fish, livestock, poultry and ratites.
Except as otherwise set forth herein, farming may
be at either a commercial or a noncommercial
scale.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.045. Definition -Farming practice.
"Farming practice" means a mode of farming,
including use of pesticides, that:
1. Is or may be used in a farming operation
of a similar nature;
2. Is consistent with generally accepted,
reasonable and prudent methods;
Chapter 9.12 1 (03/2001)
3. Is or may become a generally accepted,
reasonable_ and prudent method in
conjunction with farm use;
4. Complies with applicable laws; and
5. Is done in a reasonable and prudent
manner.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.050. Definition -Forest practice.
"Forest practice" means a mode of operation,
including the use of pesticides, on forestland that:
1. Is or may be used on forestland of a
similar nature;
2. Is a generally accepted, reasonable and
prudent method of complying with ORS
527.610 to 527.770 and the rules adopted
pursuant thereto;
3. Is or may become a generally accepted,
reasonable and prudent method in
conjunction with forestland;
4. Complies with applicable laws;
5. Is done in a reasonable and prudent
manner; and
6. May include, but is not limited to, site
preparation, timber harvest, slash
disposal, road construction and
maintenance, tree planting,
precommercial thinning, release,
fertilization, animal damage control and
insect and disease control.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.055. Definition-Nonresource use.
"Nonresource use" means any facility, activity or
other use of land that does not constitute a farm
or forest use, as defined herein, including but not
limited to residential use.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.060. Definition -Generally accepted.
"Generally accepted" means a practice that an
average person in Deschutes County who is
regularly involved in the same type of resource
use would reasonably expect to occur or exist in a
rural setting.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.065. Definition -Farming and forest
practices exclusions.
"Farming and forest practices" do not include:
The willful growing of unlawful,
infested,_ infected or—diseased plants or
animals; or
2. Trespass which involves actual physical
intrusion onto the property of another by
a person or, within a livestock control
district, by a person's animals.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.070. Definition -Nuisance or trespass.
"Nuisance" or "trespass" includes but is not
limited to actions or claims based on noise,
vibration, odors, smoke, pesticide spray, dust and
mist from irrigation. Nuisance also includes
actions or claims based on otherwise approved
practices performed during non -daylight hours.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.075. Definition -Pesticide.
"Pesticide" includes defoliants, desiccants,
fungicides, herbicides, insecticides, nematocides,
and other substances included and defined in
ORS 634.006(8).
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 3, 1995)
9.12.080. Prohibition on enactments that
make farm and forest uses a
nuisance or trespass.
The Board of County Commissioners shall enact
no resolution or ordinance that makes a farm or
forest practice covered by DCC 9.12.090 through
9.12.110 a nuisance or trespass or provides for
the abatement of such practices as a nuisance or
trespass.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 4, 1995)
9.12.090. Protection of farm and forest uses
on lands zoned for resource use.
A. No farm or forest practice occurring on lands
zoned for resource use shall be declared to be
a public or private nuisance or trespass, or
support any complaint procedure, or give rise
to a claim for relief in favor of, or to protect
the interests of, nonresource uses or any
persons or property associated therewith, to
the extent that such controversy, proceeding
or claim would arise under an ordinance or
the inherent authority of Deschutes County.
B. DCC 912.090 applies regardless of:
Chapter 9.12 2 (03/2001)
The location of the purportedly affected
_ nonresource use:
2. Whether the nonresource use purportedly
affected existed before or after the
occurrence of the farm or forest use;
3. Whether the farm or forest practice or
nonresource use has undergone any
change or interruption; or
4. Whether the resource use or nonresource
use is located inside or outside an area
designated as other than high value
resource lands.
1
C. Lands zoned for resource use include lands in
EFU zones, forest zones, surface mining
zones, and flood plain or open space &
conservation zones where the underlying
comprehensive plan designation is
"agriculture" or "forest."
D. If zoning is changed in such a way to place a
farming or forest practice within a resource
zone as defined herein, DCC 9.12.090 will
apply to that farming or forest practice after
the date the zone change becomes effective.
(Ord. 2001-016 § 2,2001; Ord. 95-024 § 5, 1995)
9.12.100. Protection of allowed farm and
forest uses in zones other than
EFU and forest zones.
A. On lands other than those zoned for farm or
forest use, no farm or forest use allowed in a
zone shall be declared to be a public or
private nuisance or trespass, or support any
complaint procedure, or give rise to a claim
for relief in favor of, or to protect the
interests of, nonresource uses or any persons
or property associated therewith, to the extent
that such controversy, proceeding or claim
would arise under an ordinance or the
inherent authority of Deschutes County.
B. DCC 9.12.110 shall apply:
1. To farming practices on commercial
farms only, notwithstanding the
definition of farming in DCC 9.12.
2. Whether or not the farm practice occurs
within the applicable urban growth
boundary.
3. Where the commercial farming or forest
practice existed before the conflicting
nonfarm or nonforest use of real property
._that gave rise to the complaint.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 6, 1995)
9.12.110. Protection of nonconforming
farm and forest uses.
A. On lands where farming or forest practices
occur as a pre-existing nonconforming use in
a zone not otherwise allowing farm or forest
practices, no such practices shall be declared
to be a public or private nuisance or trespass,
or support any complaint procedure, or give
rise to a claim for relief in favor of, or to
protect the interests of, nonresource uses or
any persons or property associated therewith,
to the extent that such controversy,
proceeding or claim would arise under an
ordinance or the inherent authority of
Deschutes County.
B. DCC 9.12.110 shall apply:
1. To fanning practices on commercial
farms only, notwithstanding the
definition of farming in DCC 9.12.
2. Whether or not the farm practice occurs
within the applicable urban growth
boundary.
3. Where a fanning or forest practice
existed before the conflicting nonfann or
nonforest use of real property that gave
rise to the complaint.
4. Where a fanning or forest practice has
not significantly increased in size or
intensity from November 4, 1993 or the
date on which the zoning is changed to
make the use a nonconforming one,
whichever is later.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 7, 1995)
9.12.120. Land use ordinances and
decisions.
The fact that Deschutes County's comprehensive
plan and zoning ordinances and that individual
land use decisions issued by the County may
allow the siting, development or support of any
particular use does not negate the provisions of
DCC 9.12 intended to protect a farm or forest
resource use.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 8, 1995)
Chapter 9.12 3 (03/2001)
9.12.130. Complaints by nonresource users.
Any persons not engaged in a farm or forest use
are deemed on notice that Deschutes County will
not issue a citation involving a farm or forest
practice protected under DCC 9.12, so long as
such resource use complies with applicable
provisions of federal and state laws and DCC
9.12. In order to protect a farming or forest
practice from shutdown upon receipt of a
complaint of nuisance, there shall be a
presumption of acceptability of the practice in the
absence of compelling evidence that continuation
of the practice would result in an immediate
threat to health and/or safety to the public, and
the County shall not take action to cause
cessation of such practice. If the practice shall
not have been previously adjudged to be an
acceptable practice, the County shall, subject to
DCC 9.12.140, make a timely determination of
whether a citation should issue.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 9, 1995)
9.12.140. Farm practices advisory list.
In determining whether any particular farming or
forest practice is a generally accepted, reasonable
and prudent practice, County staff may prior to
issuing a citation, seek the advice of an expert or
experts in the particular practice involved from a
list of experts provided by the Deschutes County
Farm Bureau for each commodity or practices
area.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 10,
1995)
9.12.150. Affect on livestock control
districts.
Nothing in DCC 9.12 shall apply to or restrict any
action taken under DCC 6.08 with respect to
livestock at large.
(Ord. 2001-016 § 2, 2001; Ord. 95-024 § 11,
1995)
Chapter 9.12 4 (03/2001)