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2001-762-Minutes for Meeting September 25,2001 Recorded 10/11/2001DESC COUNTY OFFICIAL MARYHSUESPENHOLLOW, COUNTYCLERKCJ 10010761 -TES CO COMMISSIONERS' JOURNAL 10/11/200103:52:34 PM Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF PUBLIC HEARING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, SEPTEMBER 25, 2001 The purpose of the meeting was to discuss, and hold a public hearing on, an 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 and structures, and windmills used to generate power for non-farm uses. Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were George Read and Christy Morgan, Community Development; Laurie Craghead, County Legal Counsel; Media Representatives Barney Lerten of bendnet. com and Anne Aurand of the Bend Bulletin; and three other citizens. Chair Tom De Wolf opened the meeting regarding Ordinance No. 2001-033 at 3: 02 p. m. Christy Morgan gave her staff report, explaining the purpose of the hearing. (Copy of report attached as Exhibit A.) She stated that there was another consideration regarding allowing windmills over the height that is currently allowed, 30 feet, or in this case 36 feet, for a non-farm use. The Planning Commission voted not to allow that, and to forward their recommendation to the Board. Minutes of Public Hearing Page 1 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heihts buality Services Performed with Pride DENNIS LUKE: They could come through on a conditional use if they have a special project, such as a windmill farm? GEORGE READ: (Off the microphone.) No, the ordinance would have to be changed. MORGAN: They could go up to 36 feet with an exception. MIKE DALY: Let me get this straight. We had one example that Mr. Winterfield brought in to us. The windmill was thirty feet high, but the blades added another five feet or so. You're saying that the Planning Commission recommended "no" for that? MORGAN: They could apply for that as an exception. They could go thirty feet and the additional six would be an exception under the existing law. LUKE: If they wanted to put a wind farm in, if windmills would be forty feet high, they couldn't go through an exception process to go that high? The evidence reviewed by the Planning Commission didn't warrant changing what we have now. That's what it boils down to. The issue of wind farms and whether they can be allowed has been left for another day when the Planning Commission has more evidence on that issue. DALY: My question would be, the windmill situation that was brought before us, if it's 30 feet high, with blades 5 feet high, which makes it out of our ordinance, can they apply for a conditional use to allow it? READ: Yes, up to 36 feet. Minutes of Public Hearing Page 2 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DALY: What is the cost to apply? READ: I believe that fee is around $750. DALY: The whole issue of someone wanting to put one of these windmills up would be to save electricity and money. It sounds like the process has already stopped that. LUKE: Not necessarily; you could dig it into the ground a couple of feet. Testimony was that they really need to be taller. The Planning Commission didn't feel like they were in a position to say how tall. They also heard testimony from Keith Cyrus on behalf of farmers that he had some interest in potentially generating electricity for irrigation purposes. The Planning Commission said that it didn't have that information, didn't know how tall they should be or under what circumstances the agricultural use would be permitted under this. LUKE: The Planning Commission is not opposed to revisiting it once they have some additional data. DEWOLF: This doesn't change our current ordinance. This is a particular piece that we will take up on another day, if and when someone raises the issue. MORGAN: Correct. And one of the major reasons for that is because one of things brought up at the hearing was they would like to place these on ridgelines. That's why it opened up an entirely different process. Finally, the Planning Commission recommended to forward to you that any exemption be required to go before a public hearing. Minutes of Public Hearing Page 3 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DALY: Are you talking about barns or windmills? MORGAN: Agricultural structures, barns. And it could be either one, if they are for agricultural purposes. LUKE: Is the July 26 letter from the Deschutes County Farm Bureau in the record? Are all letters in our packet? MORGAN: Yes, they are. LUKE: What is the current policy of your department if an application comes in over an existing allowed height? Let's say that we pass this ordinance at 36 feet, but the requirement for the public hearing is gone, what is the procedure? The planning director has the authority to approve, deny or send it to a hearing. Generally we almost never deny things unless they are just really not allowed. If it appears it may be controversial, we send it to a hearing. Also, under our present process, we send notices before we accept applications; so we get to stick our toe in the water to see what the sentiment is before we make that decision. Finally, you asked what the policy is, and last year the Board told us in no uncertain terms to be careful with tall things. This is kind of the outgrowth of the golf nets, that we should err on the side of public process when it comes to height issues. DEWOLF: More than just more notification, it really was anything tall. We gave specific instructions that related to cell towers that everything has to go through a particular process. Minutes of Public Hearing Page 4 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights LUKE: So, let's say I was in the middle of 300 acres in Lower Bridge, if this paragraph was out, and wanted to do a barn that was forty feet tall. Typically I would make the application to you because it's over 36 feet high. Staff would then review that and notify the neighbors, correct? And if you received no comments or letters from the neighbors, you'd probably do it administratively? READ: If we had comments such as "it blocks my view", because in here the criteria are not view criteria necessarily. They are farm criteria. If there were a question as to whether or not it is necessary for farming, we would send it to a hearing. As proposed, we would send all of it to a hearing. DEWOLF: That seems like an unnecessary burden to me. READ: That's what the Planning Commission recommended. The theory of the Planning Commission was that they really didn't want to encourage these things, but if someone needs one they should be willing to talk publicly about it. I understand that theory. The flip side is that there are places that it wouldn't be an issue, so why have a hearing. LUKE: So if I came in with a building that was 40 feet tall, I would have to show you that it is necessary for the operation of my farm? READ: Generally accepted farm practices. Correct. LUKE: I have a concern about that last paragraph. I have a problem with everything over 30 feet going to a public hearing. It's very clear that if it is over 36 feet there will be notification sent out. Chair Tom DeWolf then opened public hearing. Minutes of Public Hearing Page 5 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights Leonard Knott, of 68308 Cloverdale Rd, Sisters, testified. He represents the Deschutes County Farm Bureau, and read a two-page letter dated July 26, 2001 that expressed his concerns. (This letter is already in the record, and a copy is also attached as Exhibit B) LUKE: I would like to ask you a question. This ordinance doesn't say anything about views. It's been written completely about height. You mentioned arbitrary, but one of the reasons we sent this back to the Planning Commission is that the first one was arbitrary. I understood that the Planning Commission had several hearings and the farming community was invited to testify there. It was our instructions that there be a reason for the height, whatever it would be. That there be a solid reason why that height would work. Did you not have that opportunity? KNOTT: I did have a chance to comment earlier, and we objected to the original height limitation as proposed. And, frankly, standing here before you now, I can't honestly say that a height limitation of 36 feet is any more acceptable than the original height limitation of 30 feet. I still haven't heard where the number 36 comes from, what it means, and what it will produce to satisfy anyone's needs. It was just a number. DEWOLF: What I'm confused by is that what you just described is what I am reading here. It would allow agricultural structures above 36 feet if the applicant meets the criteria to demonstrate that the structure would be located in a particular zone, and so on. That is before a hearings officer. KNOTT: Now I have to make my admission. I wrote this testimony before I saw the revised ordinance recommendation. I just picked it up about twenty minutes ago. I do have to say that the amended proposal is a whole lot more acceptable to us that the original one. Minutes of Public Hearing Page 6 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights KNOTT: The County ordinance set up a mechanism for the farm bureau to propose lists of so-called experts in the agricultural fields of endeavor that might be called into question. So, I like your terminology when you allude to a Farm Bureau representative. It does not mean that it has to be me or anybody else on the Farm Bureau board. I like the idea of our being given the opportunity to find somebody who will represent Farm Bureau interests who is an expert in that particular field. LUKE: If a person is active in that field or in that type of farming, they wouldn't necessarily have to come from this area. READ: The theory regarding the right to farm ordinance already refers to the Farm Bureau as being sort of the mediating body; and that we would have the applicant go to the Farm Bureau and basically ask if it is accepted farm practice, which is consistent with the development of the list. If that was part of the application, then that was it. Because that is a discretionary type of decision, it does require notice and we would have to go through a process. LUKE: I happened to be at one of the hearings of the Planning Commission when they first started talking about this. Very clearly, when it finally came to us, they were talking about view corridors. That has its place, but I don't think it has a place above the right to farm. I supported that in the legislature, and I support it here. As people move out into rural areas, we have more problems between those who make their living on the ground and those who want to look at the mountains from their houses. Truly we have to work together. DALY: You are representing 270 farm families. How did you arrive at this, your letter; did you canvass all those families, did you get testimony from them? How did you arrive at this position that you've taken? KNOTT: This was discussed at two separate Farm Bureau board meetings. We expect our board members to be in contact with the farmers in their community. Minutes of Public Hearing Page 7 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DEWOLF: Kind of like when we make a decision, we're representing 115,000 people, but I'm not going to call them all and ask them what they want to do. LUKE: We sent this back to the Planning Commission because we - at least I - thought that the number was arbitrary. Can you tell me why they came to 36 feet? READ: Thirty-six feet is still somewhat arbitrary. There are a couple of things that we did look at, though. One is the height of structure needed, roof pitch, spans that were needed, and so on. There was significant testimony because staff had drawn some buildings and some testimony was received about the need for them to be taller. The issue was this. We had someone testify about a 3/12 roof pitch or a 2/12 roof pitch, or what kind of roof pitch would be adequate, and what kind of spans would be created in that distance. In the end, since we already have a 36 -foot limit for everything else, as a baseline 36 feet is the maximum; and with everything else, you've got an exception. There's a baseline the height for without an exception, and I think that's just what they picked. The other evidence that is somewhat new, however we have it anecdotally, is in the record for this hearing. That is Attachment A with staff report, which is a list of all the barns built since 1987, all the agricultural structures and how tall. As you can see, there are just three structures above 36 feet. There are three structures right at 36 feet, and a few more than would be in that. So if you took it lower than 36 feet, I think you'd sweep in a lot more barns. Based on this information, it shows the kind of barns being built. DALY: Then why do we need the ordinance, if there are only three? Where is the big problem? READ: The Planning Commission was directed by the Board of County Commissioners to approach this issue, and that's what we did. Minutes of Public Hearing Page 8 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights LUKE: I thought that most agricultural buildings are built without permits. Yes, but we require an agricultural exemption from them and a plot plan. We are still informed about it. LUKE: Maybe I can answer Mike's question. We appoint a Planning Commission and then work very closely with them. If you're going to have a group of citizens out there volunteer their time, and they go to the trouble of going through these things, we should trust them enough, or take the time, to have a hearing on the work that they have done. LUKE: I disagreed with the first proposal, because I thought it was kind of arbitrary. I knew after sitting in the one hearing that they were talking about view corridors. This ordinance has been changed considerably from the first one they came in with. This one talks the right to farm, it talks about the applicant showing the need to go higher, working with people who are in the farming business, and showing us it needs to be a specific height. I think that's fair. KNOTT: I do appreciate the changes that have been made. DALY: I agree with you that the Planning Commission works hard. I was at the first hearing on this, and the testimony was overwhelmingly in favor for no regulation at all. Some wanted regulations only because their views were blocked. There was no other reason. What I see tonight is totally the opposite of what I heard at that public hearing. DEWOLF: I'd suggest that you vote against it, then. I'd like to move along. Minutes of Public Hearing Page 9 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights READ: There was one other point that I missed on the height. It is interesting to note that the two structures listed in here, one at 36 feet and one at 38 feet; plus the other two that are over 36 feet. Of the three that are over 36 feet that were built in the last three years, two of those are the ones generating all the complaints. That points to another reason why that height might be a good separation. David Abbajay, 67480 Cloverdale Road, Sisters, then testified. I appreciate the opportunity to come before you to give my view on this matter. Although I fundamentally don't' have an objection to the ordinance as stated, my concern would be in terms of how the review process would work. There are a few other things to think about. I'm one of those who built one of these structures; I believe mine is about fifty feet tall. One of the reasons for the height is the span. It's a riding arena in which I train quarter horses for roping activities, cutting, and so on; it is designed to be an all- weather facility. One reason was not just the span, but for the desire to be able to reduce consumption of electricity. The architect designed a clerestory, with a bank of windows on both sides. We looked at several alternatives to doing that, such as skylights, but these dramatically increased the cost of building. There are other factors that need to be considered besides the ratio between the pitch of the roof and the span. There could be some other reasons why you could take the height up a little bit. The other point is, especially in the horse operation business, in terms of trying to attract the types of business we would like to have in the agricultural industry, horse operations are certainly among the more self-sufficient of all farm operations. Horse operations still tend to be able to pay for themselves. There's also a requirement to have buildings not just be functional, but attractive. Some buildings may not need to be above this height other than they look good that way, and help to attract clientele. My point is, in terms of height restrictions, be careful about what is going to be the criteria placed on it. There may be some very good reasons other than just the pitch of the roof. LUKE: Is this yours? (He then showed a photo from the record.) Minutes of Public Hearing Page 10 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights Could be. I think so. That was done to allow the maximum amount of light into that building. LUKE: One of the first things we ran into was the golf nets. That generated a lot of concerns in the community, and we actually changed our ordinance to require a minimum number of people to be notified and how far out the notices would go. Height raises concerns. How high do you believe your building would have to be in order to be functional for what you want to do, if it wasn't for the clerestory? ABBAJAY: I don't know the answer to that question. I was relying on my architect and the planner. LUKE: The clerestory is for light? ABBAJAY: Yes. LUKE: So you don't store anything up there, and you don't need that height to run a forklift up or anything like that? There are occasions that we do need to get the height up to get things up there. But the primary reason for the clerestory was for light. LUKE: The question I would ask is this. We were faced not only by representatives of the farming community, but other citizens of the county, too. Is there any height that is acceptable? Is there a process to go through in your opinion? Minutes of Public Hearing Page 11 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights The height stated in the ordinance seems a bit arbitrary, but it needs to be reasonable. There needs to be a reasonable process available. Aesthetic and practical reasons should also be considered. Keith Cyrus, 17204 Highway 126, Sisters, the testified. CYRUS: I farm in the Cloverdale area, and have about a thousand acres that are primarily in hay crops. At the last Planning Commission meeting, my perception was that the majority of the Planning Commission was concerned with view corridors and not the mechanics of farming. I feel the final decision was swayed by personal feelings. We raise a fair amount of hay, and are concerned that when we go to deliver hay and try to back a fourteen foot load under a twelve foot doorway. We're tired of peeling the top tier or two off to get in. Primarily the owners didn't think far enough ahead, and likely someone told them to keep it down, keep it low. DEWOLF: If they did that without this ordinance being in place, then they made that choice. CYRUS: Truthfully, one of my concerns is that in the hay industry, everything changes, our methods and equipment change. A lot of people are going to hay blocks, where they put together about a nine -foot unit. These are stacked, and I'm sure you've seen that facility over in the valley this side of Lebanon. They are way up there. If you're going to put a roof over something, let's put poles under it where we can get it up and we can make the most efficient use of it. I really object strenuously to having to come before someone to determine if my wants and needs are justified. We should have an outright exemption up to at least 50 feet. We shouldn't have to pay the fees and come in to ask somebody and jump through the hoops. Minutes of Public Hearing Page 12 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DEWOLF: So what about 50 feet is less arbitrary than 36 feet? CYRUS: I think that certainly covers a lot more of our potential needs. DEWOLF: It's still an arbitrary number. CYRUS : It's still an arbitrary number, but it's based on three hay blocks of approximately 27 to 30 feet, and you've got to have a little room to get your equipment in over the top under your trusses. One of the things you have to keep in mind is the pitch of your roof. You are starting to get into an area where you are mandating structural design and strength, and the cost of those trusses to stay flat goes up, as they have to be beefed up. With these limitations, and granted, I understand we can come in for an exception, and perhaps be allowed to go higher - if there isn't enough height. I would expect that in a lot of areas there would be so much controversy that there probably would end up being a long battle to get those exemptions. It does appear that you have modified it so a person can deal with windmills and power generators. A number of these inclusions that I see have been put in through our testimony. I think you should seriously look at wind generators and windmills. People we are working with say they need to be 30 to 40 feet above the trees for an undisturbed, constant wind flow. I feel the same way as Leonard (Knott); if it isn't broke, don't try to fix it. DEWOLF: That's the problem that we face. George (Read) pointed out that two of the three buildings over 36 feet have been the main problem. It's always one or two people who cause problems for others. Minutes of Public Hearing Page 13 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DEWOLF: We don't like dealing with this stuff. What we've done in our instructions to the Planning Commission is create an ordinance that states, although perhaps it's a pain for you, but you're not the one causing the problem, and it's built in here so that you can make it work for you. But it then will keep the person who is going to be a rascal about it from creating the difficulty that causes us to have to do stuff like this. It seems like most of the objections that you raised have been dealt with in here. It doesn't answer everything, but allows you to do your business, although with extra hassle, but also protects the County residents from those who just have to push the envelope and cause problems for everybody. CYRUS: In my opinion, it was pretty frivolous for this to have ever been brought to you. It was obviously a personal agenda by a few people who had been impacted by the situation, and the rest of us have to suffer because of it. LUKE: If you do a barn that's 36 feet high or less, what is the cost you pay to the County for the privilege of building it? I understand that there is no building permit required. READ: I believe there's a $35 fee for a plot plan review. CYRUS: Everyone can build to 30 feet, and an agricultural building can go to 36 feet. LUKE: If you build a house at 30 feet high, you pay a substantial amount to the building department. Tom Keeton, 18173 Highway 126, Sisters, then testified. Minutes of Public Hearing Page 14 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights KEETON: I live on probably one of the three most photographed properties in the County. My barn is 37 feet high. It doesn't detract, and it is also in a view corridor. My question would be, how do you measure the barns? The same way you measure a house? READ: You take the average grade of four walls. KEETON: Averaged with eave heights? No, it would be averaged to the highest point from the lowest point, looking at each wall. The average of each wall. If it's on flat ground, it's easy. DEWOLF: If there's more than one level, what about a house? READ: You measure the tallest point of each wall. The only way the average matters is if you are on a slope. DEWOLF: You average a barn the same way? R81 You are actually averaging the ground height, and then from that average you are measuring to the top point of the building. That's correct. So you don't use the highest point being the lowest wall, if you're on a slope. KEETON: Then I'm not going to cause a problem, because I happen to build houses and I know that's how they do it. Minutes of Public Hearing Page 15 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights READ: I disagree. DEWOLF: What is the point of the question? KEETON: My point is that if you are going to do the farm buildings the same way, it's not actually the height. A cluster of buildings that are connected, with some short and some higher, you should be able to get a few more feet out of the building. But he says no. DALY: Do any other counties in the state that have a similar ordinance to what is proposed here? With regard to agricultural buildings, I don't believe there is. I believe that almost every jurisdiction has some kind of height limit. In terms of how they relate to agricultural buildings, I'm not sure anyone regulates the maximum height of the building. I have not checked. LAURIE CRAGHEAD: I think Multnomah County has one like ours. Building heights was one of the things that was discussed there. There was a lengthy article in the Oregonian about this, where the writers had done a lot of research about it, and actually made some statements that they didn't find any that were. DEWOLF: I'm not sure that Multnomah County should be setting the standards for our County. Being no further testimony offered, Chair DeWolf then closed the hearing. Minutes of Public Hearing Page 16 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DALY: My feeling on this matter is that I'm not in favor of creating more bureaucracy. In other words, we have had a farm ordinance in the state of Oregon and in all the counties that pretty much left farmers alone for years. I remember when I was a state trooper years ago that I was always told that the "F" on the farm plate meant forget it. The reason that was that way is because farmers traditionally have been protected. We were out to protect the farmer and their way of living, because they were here before anybody else. I grew up on a farm, and I feel the same way, that we can't start infringing on our farmers. Look what happened in Klamath Falls because of regulations that were made, and our farmers are suffering down there now. I don't see a need for this ordinance. This whole issue was brought up because of a few individuals who had their views blocked by barns. There was testimony at the last hearing that if you want to protect your view, you have a right to go to that farmer and buy an easement for a view. That is entirely legal. I don't see a need for a knee jerk reaction to a problem that just arose, with a few people affected. It's not that big a problem that we have to start making more regulations. So, I'm not in favor of going forward with this regulation at all. LUKE: I have a question for staff. There is an emergency clause on this. Why? MORGAN: This was a holdover from worrying about a flurry of applications been submitted. LUKE: We could remove Section 3 then. MORGAN: Correct. LUKE: I move that Section 3 be removed from the proposed ordinance. Minutes of Public Hearing Page 17 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights CRAGBEAD: I would do this at the time that you move the entire ordinance, if you decide to do so. LUKE: This would take affect from 90 days from adoption? DEWOLF: Yes. LUKE: Under Exhibit A, I would certainly like to take out the part that all agricultural exemptions shall be subject to a public hearing. I think that we have a really good process in place now that handles all our other land use situations, so I'd ask that be taken out. DEWOLF: Particularly when it relates to height, as everyone knows how sensitive that is in this County. LUKE: If we do move forward on this, I'm going to ask that this be taken out. I'd like to say, that when this first came to us from the Planning Commission, it was on view corridors, and I had a real problem with that. This has been changed considerably to talk about the needs of farmers. If there is an exemption, it is because there is a need for that in the operation of that farm. This county is changing. There has been an infringement of people moving into those rural areas. I support the right to farm and want to protect those who farm. There is a concern, by a large number of our citizens, especially in the urban areas, about the height of things. This was brought forward by the Planning Commission even after we sent it back to them and had the other hearings. They still chose to send it to us. I wish there was a solid reason why 36 feet works. That still troubles me some, and I'm not sure what you can do about it. But I think it has been a very open process and somebody has to make the decision. Eventually it falls into our laps. Minutes of Public Hearing Page 18 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights LUKE: I'm going to be supporting this if the change can be made to Exhibit A, and the emergency clause is taken out. DEWOLF: From where this was and where it is now, I'm sorry, but that's the reason laws exist. I mean, we've got helmet laws, and most people who ride motorcycles prefer there not be a helmet law. We get laws because of the way that people do things. Most people don't cause problems. But I tend to agree with Dennis. I don't want to force everything to go to a hearing. The fact is, ordinances are subject to change. We're not creating an ordinance; we're amending an ordinance that already exists. If, by making this happen, it creates problems, a year from now I would expect that we'll hear about it and discuss what we can do to make this work better. And, if there is no problem, then there's no problem. Thirty-six feet seems like an okay number even though it is arbitrary, since there have only been a few built in the last five years that were built higher than that. There haven't been any built at 50 feet in the last five years. So it seems like an okay number; if it's not an okay number, then let's revisit that in a year or so. LUKE: One thing I would like to point out, this is an additional burden on people who want to build barns, but if you look at it from our staff s viewpoint, now they have something to hang their hat on. If someone comes in to make a complaint or wants to file an argument against a building, if it deals with a view corridor they are not going to look at it. If you have a reason for the height for farming practices, they do not look at view corridors. And I think that is a major change from what we had before. DEWOLF: This also helps protect all the legitimate people working on farms, as you then have us to defend your position as well. I hope that is seen as somewhat of a little benefit, that we'll be able to tell folks that this is here for a reason. DALY: I'd like to understand something. By taking out the public hearing, are you saying that staff makes the decision? Minutes of Public Hearing Page 19 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights RM�� What happens is that if it is 36 feet or under, there is no public hearing. If they came in with a 40 -foot high roof, and they say they need it for some reason, or because of pitch and width, they will apply for exemption. Staff will review it, do a mailing to the surrounding areas for public notice, and if just a few letters come in or they talk about view corridors, they can make an administrative decision. If ten letters come in and the Farm Bureau says it's not necessary, there will probably be a public hearing, just like any land use decision the county handles. DE WOLF : What we are doing here is taking out the requirement that they all go to a public hearing. So we're saving that hassle and expense for them. 99% of all applications get approved or disapproved administratively. The ones that come to us are the ones there are problems with. There are very few. DALY: Let me ask you this, then. If there is no view corridor going to be considered, why do we need this ordinance? LUKE: You are capping the height. DALY: But why? If we aren't going to consider views, what's wrong with the height? Why do we need the ordinance at all? LUKE: Again, there are almost 120,000 people in the county. You weren't here before when we had a lot of discussions about heights of objects, but we filled this room more than once. There are people who are very concerned about heights. DALY: It all relates to views, isn't that correct? DEWOLF: Yes. So let's make this a 75 -foot building. Then it is a view corridor issue. By putting it at 36, we are taking the view out of being one of the criteria, because we've got something that we believe everybody can live with. Minutes of Public Hearing Page 20 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DEWOLF: If we change this and make it higher, then we are going to have people come in and say that it blocks their view. Then you open the whole thing up to the argument that maybe views ought to be considered. DALY: My point is not to make it at all. DEWOLF: That is great for you to say that, and then we have people coming in and changing this whole thing into an argument about view and instead of making it the right to farm. By having something here that even though no one prefers to have, everybody has said they can live with it. We are trying to keep the view from being criteria that is considered. You put this at 50 feet or some other number, which is also an arbitrary number, then people do come in and we then have views to consider, too, and we have to deal with that whole issue. Right now, we've got these folks here, but we don't have a huge hue and cry from anybody. This is something that even though we all have problems with it, we can all live with it, and we aren't having to deal with it the way we have to deal with cell towers and golf nets and those sorts of things. That's because this wouldn't be up at a height where it does create view as an issue. What we're doing is keeping it from becoming an issue, Mike. LUKE: We are also setting the standard. Let's say that someone came in with an application to build a barn without this ordinance. Then we will start getting complaints or letters from people who are talking about view corridors, and it will go to a hearing. The Hearings Officer will take a look at that because there is no ordinance in place, and will say yes, we should be looking at the view corridors. Then it is going to be appealed to us. LUKE: This ordinance puts in place what is allowed and how you can change that allowance, but people cannot come in and say that a barn blocks their view, and have standing. Minutes of Public Hearing Page 21 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DALY: People cannot do that now. LUKE: Yes, they can. DEWOLF: Where do you think this came from, Mike? DALY: I understand that they can come in, but if they want to protect their view, they can buy a view corridor. LUKE: Under the current ordinance, if someone came in and wanted to build a barn, if everyone around it complained, say twenty people came in, would that come to a public hearing? 177: No, it's an outright use. The problem is, you're correct, we have this issue of agricultural buildings being exempt. That actually could be determined to be a discretionary decision. This is a decision that requires determining, is it a barn or not? We determine that we don't send all barns to a hearing. We make a call, and there is a risk involved. Just because we said it's okay, someone could appeal it anyway. One way, the answer is no, it's a barn and we're not going to do anything. The other way is, on appeal, it could be argued that it is not a barn or necessary agricultural building. DALY: I'm not so sure I would object if we stated what is and isn't a barn. We are getting to the point where some of these things really aren't barns. DALY: The ordinance is arbitrary, and it doesn't really do anything. If you take the view issue out of it completely, you have an ordinance that doesn't do any thing. That's my feeling. Minutes of Public Hearing Page 22 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DEWOLF: The reality is if a 50 -foot high barn is built right next to a property line and someone's view is wiped out, they get pissed off. And we're the ones they come to. That's what happened and that's why we're here. By doing this, what we're doing is trying to protect people who are farming from having to deal with that issue. The 36 feet is arbitrary, but we give this more definition in order to tell people that outright they can do all this stuff and you don't have to worry about what other people's views are. It gives it more structure and actually protects the farmers. as)" I move adoption of Ordinance No. 2001-033, taking out the emergency clause and amending Exhibit A by eliminating Section D. DEWOLF: Second. CRAGHEAD: To clarify your motion, Exhibit A is Section 18.120.040 D(1)(d), "subject to a public hearing". DALY: The only discussion I have is that today we're probably the only county in the state making a restrictive ordinance against farmers. I don't agree with it. LUKE: I like to comment that I support farming, and my wife and relatives were raised on farms. I don't do this with a lot of relish. There is a lot of concern in this county about height. I really believe this helps to protect farmers more than not having an ordinance in place. I it my hope that it cuts down on the amount of hearings and protests, and the amount of people going to LUBA. I could be wrong. DEWOLF: And if we are, then I want to revisit this. I agree completely. I wouldn't be doing this if I thought this was putting an undue burden on farmers. I really believe that what this is doing is ultimately helping to give the kind of definition that will, in the long run, save the hassles that I think were created by certain farmers. Minutes of Public Hearing Page 23 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights VOTE: LUKE: Yes. DALY: No. DEWOLF: Chair votes yes. CONNIE CYRUS (Citizen): I would like to comment on what you said about someone building right up next to property line. You can block someone's view at less than 36 feet tall. So, what's the point? DEWOLF: More than anything we've been hammered with height issues. If there is no definition of height of agricultural buildings, people do things that create big problems for themselves and for farmers as a whole. Some think that certain things have been done to stick it to their neighbors. That will happen. I'd rather not deal with this at all. When it is forced on us, we try to come up with an ordinance that will do the best job possible. In fact, in the past few years only a few have come into this category, maybe 3 out of a 100. It comes into play only if they are trying to do something that is outside of the comfort level. LUKE: We sent the other one back because it dealt view corridors. This allows farmers to build the building they need. It takes away the argument of view corridors. DEWOLF: It can be readdressed if a problem can be shown. Its a We're not here to restrict farmers' ability to farm. There was then a general discussion about the Farm Bureau getting involved in the future. DEWOLF: The ordinance already existed. Any board after us can change it, but we need to have an ordinance that will stand. We hope that the voters in this county do things to try to balance the two sides of the coin. The golf nets started the ball rolling. We try to strike a balance to allow farmers to do their work and allow other people to live with it. Minutes of Public Hearing Page 24 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights LUKE: If you can show that you need a certain height, the right to farm may take priority. There has to be a legitimate reason. There are people in other counties who won't let you build anything on their playgrounds. We are getting more urban, so sometimes we have to take that into account. It's not an easy call, and is somewhat of a political decision, because most people live in urban areas. DEWOLF: This is a county ordinance, and can be changed if necessary. If there are ways to modify this to make it better, it can be changed. Help us to find a way to make it better in the future if change becomes necessary. CRAGHEAD: View can be a consideration, but cannot be an approval criteria for individual applications. DALY: This also opens it up for an appeal to LUBA. Opponents can then appeal to LUBA and hold up the building of a structure. Isn't that correct? READ: Yes, but with all due respect, they could do that now. DALY: Without the new ordinance, the appeal could be considered frivolous. DEWOLF: You obviously don't understand, based on the statements that you are making. You obviously don't. And if you would spend the time to understand what it is we are trying to accomplish, then you wouldn't be making such stupid statements, Mike. Being no further information brought before the Board, the meeting was closed at 4:30 p.m. Minutes of Public Hearing Page 25 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights DATED this 25th Day of September 2001 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary To DeWoX, Chair R. Luke, Commissi Michael M. Daly, Co missioner Attachments: Exhibit A - Christy Morgan's staff report, explaining the purpose of the hearing. Exhibit B - A letter dated July 26, 2001 from Leonard Knott, 68308 Cloverdale Road, Sisters, who represents the Deschutes County Farm Bureau. Minutes of Public Hearing Page 26 of 26 Pages Adoption of Ordinance No. 2001-033 Tuesday, September 25, 2001 Agricultural Building Heights 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: 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 -Ordinance 2001-033, Exhibits A & B 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 barns/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 18.04.410, 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 satisfaction 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 in 1 and 2. 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 -Ordinance 2001-033, Exhibits A & B ATTACHMENT A AGRICULTURAL EXEMPTIONS - HEIGHT 998 18.6 28.0 14 20.0 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 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 9.12.035-075. (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: 1. 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) 1. 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. 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 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 a farming or forest practice existed before the conflicting nonfarm or nonforest use of real property that gave rise to the complaint. 4. Where a farming 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) c Y ESCHUTES C FAR�Y BUREAU 9� `l YOUR VOICE IlY AGRICCILT[JRE July 26, 2001 George Read, Director Community Development Department Deschutes County 117 NW Lafayette Ave. Bend, OR 97701 Dear Mr. Read: RECEIVEP, JUL 2 7 2001. DESCHuTEt9WUNTY CL This is with respect to the Deschutes County Planning Commission's File Number TA -00-010 concerning ordinance no. 1001-033 to consider changes to Title 18 of the Deschutes County Code for reduction of the allowable height of some agricultural barns/structures. Please make this letter a part of the written record. First, I should like to express my appreciation at having been given the opportunity to offer testimony on behalf of the Deschutes County Farm Bureau on July 12 before the Planning • Commission concerning this matter. Points that I'd like the Commission to consider are as follows: • Persons residing in the Exclusive Farm Use zone presumably do so for a reason: They should be there to engage in agricultural activities, whether large- or small-scale. Oregon's land use laws and tax code are very specific about allowed activities on lands in the EFU, and along with the restrictions in allowable uses come statutes and ordinances that make it possible for farmers to engage in their agricultural practices. This being the case, the county needs to proceed very carefully before imposing conditions on farm properties that make it difficult, if not impossible, for agricultural -related activities to be engaged in. • We understand and appreciate that Deschutes County faces urbanization pressures that are unique in Oregon. The situations that have created the discussion in the first place constitute both a classic confrontation between urban (including tourist) and rural interests and a less classic confrontation with some persons living in the EFU whose agricultural pursuits are suspicious at best. We already live with scenic corridor overlays and rimrock setbacks that restrict some agricultural pursuits and while we accept them grudgingly, we are not ready to accept arbitrary height restrictions on agricultural buildings in the name of keeping neighbors' views pristine. If we accept the fact that agriculture production is a worthwhile activity in Deschutes County, and I see no reason not to accept that fact, then it is incumbent upon the county to protect farmers' ability to • engage in their pursuits. • • This having been said, we acknowledge that most agriculture producers in Deschutes County are not likely to be adversely affected by a 30 -foot height restriction (with the ability to add an additional 6 feet as an exemption if justified). There will be several, though, who cannot live with even a 36 -foot height limitation, and it is for these few that we need to find a mechanism to protect their interests, their livelihoods and the contributions they make, and will make, to the community. We feel that, rather than imposing an inflexible height restriction, the county should consider each such request on its merits. An appropriate deliberative body, such as a hearing officer, the Planning Commission and/or the Board of County Commissioners, should assess each situation uniquely. Such factors as the operator's need and justification for a particular scaled building, the proposed location of the building with respect to location of the site itself, location of the building on the designated site and its impact on neighbors' sight lines need to be considered. Thus, a process analogous to a "conditional use" permitting process would appear to us to more closely protect everyone's interests rather than a "one -size -fits -all" approach. Again, thank you for the opportunity to express our views. If there is any additional information we can provide, please do not hesitate to contact us. I can be reached via telephone at 923-6438; via fax at 548-3419 and via e-mail at lknott@empnet.com. Sincerely yours, LEONARD J. KNOTT President Deschutes County Board of Commissioners r ,z� Y RE. Agriculturally Exempt Building Height Restrictions March 19, 2001 Board of Commissioners: Our neighbor and I attended: the height restrictions public meeting earlier this month and were gratified to see the changes implemented, with the exception of the agricultural height restrictions. We feel that 40 feet is still too high without: 1.) Prior notification of all adjacent properties, and 2.) Setbacks should be required to maintain the integrity of the, surrounding views; the same as residential buildings., We understand that Deschutes County needs to sustain.and support ranchers and farmers, and that they may require larger buildings to remain profitable. We desire this also. but we have seen abuses of this exemption and feel that prior notification would have saved our view and the subsequent grief it continues to cause. The Abbajays at 67480 Cloverdale Road, Sisters, built a 50 foot enclosed horse arena at the very comer of their lot and effectively destroyed our view of Mt. Jefferson and Black Butte. While they are agriculturally exempt, they are hobbyists who never intend to make the ranch profitable. Had they been forced to be aware, ("Oh, we didn't even think about Mt. Jefferson!") they could have placed it elsewhere on their property. Please change the wording on agricultural buildings to 30 feet maximum without prior notification, and five:feet of setback per additional 1 foot of height. Thank you, MAR 24:, A 2001 ��urs cDc July 29, 2001 Deschutes County Planning Commission 117 NW Lafayette Bend, OR 97701 Dear Commissioners, • RE,1 ED BY: William E. and Donna M. McGourin J 302001 64119 Tumalo Rim Drive Bend, OR 97701 DELIVERED BY: We attended the previous meeting concerning the height restriction ordinance on July 12, 2001. It was our first public hearing and a very interesting experience. We will not be able to attend the meeting on August 9, 2001, so we wish to add to the comments that were expressed at the meeting. We are in favor of height restrictions for farm buildings for the following reasons. In an article in The Bulletin, Mr. Gisler (the farmer/rancher who built the barn and riding arena directly behind our property) stated that there is no right to a view. We contend that there is an implied right. When we purchased the property in 1996, it was advertised as "outrageous mountain views". The purchase price was based on the view, along with the appraised value. When we refinanced our mortgage, the first question asked by the appraiser was "Do you have full, partial or peek-a-boo views from your property?" Our purchase of the property was based on the view that we had When we spoke to real estate agents after the building of the barn, we were told that the loss of our view could make a difference of 10'/o to 40% in the value of our property. This could be a substantial difference in our investment. Attached you will find pictures taken in 1996 and 2001 to show the effect of these buildings on our view. Mr. Gisler also stated in the article, as did some of the gentlemen at the meeting, that this is a problem when urban growth encroaches on rural areas. Our development was established in 1977, long before Mr. Gisler purchased his property. We are a rural development. • While some of the gentleman horse farmers stated that they contribute greatly to the county with tax revenue (implying that they are more valuable as citizens), we submit that "regular taxpayers" also pay their fair share and contribute to the community. One taxpayer does not have more value than another based on the amount of taxes paid, whether they are long-time residents or newly arrived; whether they are farmers, ranchers or simply regular citizens who are here for the beauty that Central Oregon has to offer. An article in The Oregonian, dated April 15, 2001, states that tourism (because of the beauty and opportunities of Central Oregon) brings in more money than agriculture. In that same Oregonian article, Frank Deggendorfer was quoted "We're not trying to restrict farmers from farming. We're not trying to restrict ranchers from ranching." We agree; it's not the restrictions against buildings, but their height and setback requirements that are in contention. Christy Morgan read a letter from a builder that stated he has built numerous barns and riding arenas around the area and as far as he is concerned, there is no need for them to be higher than 30' for any reason including snow. There are barns and riding arenas all around Central Oregon that fall within the 30' height.. We have friends who train and jump horses whose riding arena does not exceed 30'. There was no compelling reason presented by any of the gentlemen that they needed the unlimited height just that they wanted it. On a final note, we will provide some background on our personal situation. Before we purchased our property in 1996, Mr. Gisler had a dispute with some of the homeowners in our association. He promised that none of them would have mountain views when he was done. He built and placed his barn and riding arena out of revenge. Had there been an ordinance for height restrictions in place, this would not be a concern for us now. We know that our situation will not change if this ordinance is passed, but we feel strongly that it may prevent this from happening again. Central Oregon is changing. It is no longer just a farming community. It is time to address the need for updating laws about building heights and protecting views. Sincerely, • William E M 11 1 4 1 1 11 / ISO •t s rf ' r s : - - ' . .Y• tom. '-k:. _ .. <s J "K __ �'Ex. _ate F+c� �R`�..: � x� � �yt�gv. 'rY.;W..• 1 _ ii .� rp�,s. �. Y.t, t tit �i -1 f t: �t •'t • • • TUMALOMM PROPERTY OWNERS AS CIATION PO BOX. 1342 BEND, OREGON 97709 TUMALO RIM DRIVE TUMALO RIM COURT KEITH COURT RIDGEWOOD DRIVE ECEIVED BY: July 31, 2001 AUG 12001 DELIVERED BY:. Deschutes County Planning Commission 117 NW Lafayette Bend, OR 97701 RE: Farm building exclusion form building height regulations. The Tumalo Rim Property Owners Association Board favors closing the loophole on tall farm buildings in the county. These buildings should not be excluded from the 30 -foot (36 foot with an approved exception) height limitation. Board members who attended the July hearing of the Commission did not hear any evidence that buildings must be over the 36 -foot limit for either riding arenas, barns or other agricultural buildings. In fact, at that meeting, a letter from a prominent builder in the region stated specifically that 34 feet would be adequate for anything he had built, even accounting for snow loads. Views contribute to our quality of life, are advertised by county real estate firms, and count in property evaluations. Some of our homeowners have lost their views to a bam over 50 feet tall build by a neighbor. While the limitation would not solve every case, it is a move in the right direction for property owners in the county. We sincerely thank the Commission for the opportunity to express our opinions on this issue. David Bilyeu, President David Newbold, Vice -President David Adams, Treasurer Donna McGourin, Secretary Charlotte Armstrong, Member Tumalo Rim Property Owners Association DAVID BILYEU, PRESIDENT 385.4764 DAVID NEWBOLD, VICE-PRESIDENT 3883108 DAVID ADAMS, TREASURER 318.8799 DONNA MCGOURIN, SECRETARY 318.5331 CHARLOTTE ARMSTRONG, MEMBER 383.1995 August 9, 2001 Planning Commission Deschutes County 117 NW Lafayette Ave. Bend, OR 97701 Ladies and Gentlemen: 0 With respect to my letter of July 26, 20011 need to emphasize a point which I mentioned in my oral testimony but neglected to mention in my earlier letter. It is important to bear in mind that the county has in its code a "right to farm" ordinance, which was incorporated into Section 10 of the Deschutes County Code. This ordinance was approved in 1995 after much effort and negotiation with the Board of Commissioners. It confers protections against nuisance and trespass complaints that might arise from legitimate, generally accepted agricultural practices. With that in mind the Deschutes County Farm Bureau wants to make it clear that it will strenuously object to any action taken by individuals or the county which would take away the ability of a practitioner of agricultural activities to carry out these activities in as effective and efficient a manner as possible. Frankly, our wish is for no height restriction that applies to agricultural buildings. If that wish cannot be granted, we would insist that, if the county feels it must be involved in "view restriction" complaints, there be a mechanism for making individual, case-by-case decisions and that the burden of proof be placed on the part of the complainant that the agricultural enterprise does not meet the definition of "generally accepted agricultural practice." It is not our wish to interfere with the ability of property owners to fully enjoy the benefits of home ownership. To the extent that potential problems can be worked out between the parties involved we support the notion of peaceful coexistence. We must temper that, however, by insisting that, if problems cannot be worked out between the parties, the agricultural enterprise must take precedence upon a showing that it meets the definition of a generally accepted agricultural practice. Thank you for this opportunity to comment. Leonard J. Knott