HomeMy WebLinkAbout2012-08-29 Business Meeting Minutes
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 1 of 12
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, AUGUST 29, 2012
_____________________________
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
__________________________
Present were Commissioners Anthony DeBone, Alan Unger and Tammy Baney.
Also present were Erik Kropp, Interim County Administrator; Laurie Craghead,
County Counsel; Tom Anderson, Nick Lelack and Paul Blikstad, Community
Development; and nine other citizens including Erik Hidle of The Bulletin.
Chair DeBone opened the meeting at 10:00 a.m.
1. PLEDGE OF ALLEGIANCE
2. CITIZEN INPUT
Citizen William Kuhn said there is a problem with Code violations not being
enforced. He will be filing a Code violation complaint regarding trees that were
cut down near his home in 2007. There was a DR initiated by CDD and the
four permits issued for that property were taken away, and the property owner
lost his wildlife area tax deferral. He applied for a new conditional use and
landscape management plan, and as a condition of that he was supposed to
replant trees and monitor them. They were supposed to be watered through
irrigation and that never happened. Only five of the original trees are still there.
Mr. Kuhn said he contacted Mr. Peery and tried to work this out; then went to
ODF&W and got a preliminary agreement with them to deal with some other
trees that need to be watered. All of this is to protect the buffer and wildlife
habitat.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 2 of 12
This complaint is more against the County than it is Mr. Peery. The County
gave him extensions on his LU and CU due to the economy. He says he
continues to replace trees and make things better, and that all requirements are
being fulfilled. He is not being honest. There is no water or irrigation system
there. Mr. Kuhn asked who makes sure this happens. It will go on for five or
six years, and then what. He asked the Board to please look into it.
Mr. Kuhn said he also asked for personal meetings with Commissioners Unger
and Baney. Commissioner Baney said she would not meet at his residence but
perhaps somewhere for coffee. Mr. Kuhn asked if they could meet on adjacent
BLM land. Chair DeBone said this could be discussed later.
Mr. Kuhn asked how he can file a complaint against County Legal Counsel. He
wants to know who to file it with. Mr. Kropp stated that the Count y can’t
provide him with this kind of legal advice. Chair DeBone said it could be
submitted to him.
__________________________
The Board presented a plaque acknowledging Mike Bonetto’s years on the
Public Health Advisory Board. Tom Kuhn accepted on his behalf and spoke
about Mr. Bonetto’s leadership while on the Board. He resigned only because
he is now working on high level health programs with the Governor’s Office.
He will remain involved in this issue on the local level, however.
Commissioner Baney added that Mr. Bonetto provided good leadership and
focus on cost-effectiveness, while remaining accessible. He helped to shore up
valuable programs, and will be a good resource for the future.
__________________________
No other public testimony was offered.
3. Before the Board was a Public Hearing on a Type 2 Limited Use Permit for
Six Commercial Events and Activities (Weddings) in an Exclusive Farm
Use Zone (Downs; File #LUP-12-2).
Chair DeBone read the opening statement. In regard to conflicts of interest,
bias or prejudgment, the Commissioners indicated there were none; that all
meetings are on the record. There were no challenges from the audience.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 3 of 12
Nick Lelack gave a PowerPoint presentation providing the history and
background of the issue, details on the property including a map and aerial
photo of the subject property and surrounding area, the application and
proposal, and staff recommendations. (A copy of the presentation is attached
for reference.)
The Board was asked to call this up for review since there was some public
interest and it is a unique situation, rather than have it go to a Hearings Officer.
Staff feels that allowing this will not force significant changes in farm use on
the property or the surrounding area. It is incidental to the agricultural use of
the property. These terms are not defined in State law, although are referenced.
The LUBA cases have been very specific to the project or case, so it is hard to
apply these findings to another situation. DLCD issued a guide regarding
wineries after SB 960 was adopted, and this guide is used to help with
definitions. They look at other organizations and documents to clarify this issue
and applied them accordingly.
The question is, how does the event become related to or subordinate of
agriculture, as it should be physically, economically and logically related to and
supportive of farm use, and/or relate to a product that is produced on the farm.
In this case the activities are felt to be related to a hay operation; but the
question is how. There is a burden of proof required for this.
He then went over the key findings, supported by AOC guidelines and now by
the legislature. This is the first case of its kind to be addressed here. One
finding relates to the amount of time dedicated to this use, and the area required
in relation to the rest of the land.
Traffic control was addressed as well. Staff interpreted that one traffic control
person is required for up to 250 attendees, and another if there are more than
250. There were thirteen conditions of approval as required by the County or
State law.
The record can be left open for oral and written testimony, setting another date;
or keep the written record open for a period of time; or close the hearing today.
Since this is new territory, he suggested that the Board hold the public hearing
today and leave the record open for a period of time, allowing time for rebuttal.
Deliberations can occur after that, with a decision written for approval to
follow.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 4 of 12
The Board had no questions of staff regarding the staff report. The applicant
was then allowed to testify. (Written documentation was provided.)
Dave Hunnicut, Oregonians in Action, representing the Downs, said he
prepared written remarks. There are other exhibits to submit as well. They
won’t be extensive. Staff has done good work on addressing the criteria. This
is the first application the Board is hearing, based on SB 960, which is now
codified in State law. As part of his job, he spends time at the legislature and
participated in hearings on SB 960. He thinks this will be helpful. Mr. Lelack
is focusing the Board on the particulars of this application.
The use is related to and supportive of agriculture, and will not materially alter
land use in the area. Some of this came from the non-farm use statutes
regarding dwellings. There are a number of other criteria that they must meet,
but staff has made them aware so they can appropriately make their case.
They feel they comply with all of the criteria, including those that are not the
key focus points at this time. Regarding incidental and subordinate uses, there
is no definition in ORS on this; but these activities do not provide much
guidance for the State or County. They are left with a combination of
legislative history and possibly some case law. Much has to do with accessory
uses which are subordinate to farm use. They often do these on their own
particular facts for each case; there is no overreaching guidance from LUBA or
the Courts on this. There is some legislative history that was created during
testimony on SB 960 when it was in the House. It passed the Senate almost
unanimously. During the House committee process, “incidental and
subordinate” language was not addressed until the last minute. Rep. Paul
Hovey from Eugene asked what this means; and was told the phrase was not
defined but was used in conjunction with other farm uses in the past. And that
it would be less than 50%, but there is no clear definition.
He said he would argue that incidental and subordinate probably refers to
income; they have to indicate that the amount received from typical farm
activities has to be more than 50% of income. Staff also considered the amount
of land used and the timeframe. He asked the Board make an additional finding
that the percentage of income be considered as well. Mr. Downs indicated what
he made from the sale of grass hay, and how much he made from incidental
uses. The property is obviously in farm use based on photos and income.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 5 of 12
Mr. Downs has said he will not charge more than $2,000 for a wedding there.
If he is approved for up to six, that is a total $12,000, which is much less than
he makes with hay production, considering gross income.
The County’s criteria have been addressed even if it is not apparently criteria of
SB 960. They don’t feel that the State requires the event be related to or
subordinate to agricultural uses, and that this is above and beyond the State’s
requirement. The County’s stance is entitled to deference if this goes to LUBA
or the Court of Appeals.
Mr. Downs’ affidavit lays out the results of weddings in the past, some of
which produced the sale of hay. Marketing of products is part of the farm use.
In addition, they were asked to demonstrate whether there were specific hay
sales generated through the events, and they can show that in 2009 five
attendees from various events subsequently purchased hay grown on the farm.
In 2010 there were sales as well. These sales figures are somewhat impressive.
This is a good marketing tool for him and a way to make connections with
people who want to purchase his products then and later.
Regarding materially altering the land use pattern in the area, this language was
chosen by the legislature as it appears in the non-farm dwelling statute. LCDC
in Administrative Rule set out a test for this. The Downs are not proposing
additional structures so this aspect does not apply. Staff laid out a list in the
findings relating to adjacent properties within a mile radius, and within that list
talked about the features of those properties. That list is representative of the
area near the subject property and the various uses. There is nothing in the
proposal that would in any way encourage other people to do the same thing.
And there are really no additional impacts; the uses are identical if they are in
farm use.
Code generally tracks the language of statutory requirements, including
complying with what the County feels is a significance change in use. Five or
six events should not be a problem. Field spraying or similar things generally
do not occur on weekends or in the evening so there should be no conflicts.
(He provided two additional exhibits, attached.).
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 6 of 12
Laurie Craghead referred to Mr. Hunnicutt’s memo about testimony at the
legislature regarding income. She said that it appears he wants the income to be
stated as less than 50%. Mr. Hunnicutt replied that the income needs to be
totaled and the amounts for each use determined as to which is 50% or more.
Chair DeBone asked if this is irrigated land. Kerry Downs pointed out the land
on the aerial photograph. He said that most is covered by COID on his land and
the surrounding properties.
Commissioner Baney asked if “related to and supportive of” language is
necessary, and to find out from the State if this is a requirement. Mr. Lelack
said it was in the purpose statement. Ms. Craghead said that it is in the first
statement although not listed again in the criteria. Her opinion is that this is a
requirement of Statute. Commissioner Baney wants to be sure there is
continuity in case the Board makes a determination on that basis. Ms. Craghead
said it is in Code so has to be addressed in any case.
James Gindlesperger said that he does not believe the burden of proof has been
met regarding this use being supportive of agriculture. Central Oregon hay is
valuable and most farmers have no problem selling theirs. He tried to find out
where Mr. Downs advertises and it appears he does not advertise at all, so
maybe has no hay to sell. Someone cuts, bales and hauls it off. He does not
seem to have to sell it himself.
He does not feel the County has assessed the traffic ramifications or has given
enough thought to the financial limits imposed on these events. Faith, Hope,
Charity Winery was ruled to limit this at 25%. A Sauvie Island case found the
same. Katherine Daniels of DLCD recommended a limit of 25% of sales at the
farm. Mr. Hunnicutt says it can be 50%, but it all seems to be limited to 25%
elsewhere.
In 2009, when Mr. Downs was under Code enforcement for improper use of a
building, he said there was no commercial use at the time. Then he changed it
from an agricultural building to an ancillary building, wanting to make it legal.
Mr. Gindlesperger stated he feels that hay operations and commercial events
have nothing in common unless it can be proven the product cannot be sold
otherwise. They should have to show that they have not been able to sell their
hay otherwise. They have just 40 acres of hay, and should not make more
because of this. It is the only thing they should be able to do with this land.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 7 of 12
Pam Hardy of 1000 Friends said that staff did a stellar job on this decision. The
record needs to be thorough on this issue. 1000 Friends has two concerns
regarding “incidental and subordinate” and “related to and supportive of”. She
also listened to the legislative hearings to find common points, but they did not
mention related to/supportive of a single time. That left all involved trying to
figure out what was meant. Essentially you have an applicant saying this are
related to weddings due to a rural setting plus potential customers. If that is
related to/supported of, then there is no event that isn’t. What would not be
allowed? There needs to be an objective nexus regarding the type of event
being held. DLCD mentioned featuring the food or wine being produced on the
property. But there is no objective nexus here.
Regarding incidental, she asked what the consensus was. Essentially this had to
do with income, set at less than 50%. She understands from the hearings that
the legislature intended to stand behind the task force. The income level should
be looked at carefully. She wants to review what was submitted in this regard.
One question she has is to verify whether they are comparing apples with
apples. Gross receipts from hay were $18,000 to $20,000, and weddings would
be $2,000 per event. She asked if this is the gross receipts or net amount. She
has no idea if this is accounted for somehow.
The biggest concern is related to/supportive of, needing some meaning. They
need to look for verifiable objectives between the use and event.
Commissioner Baney said there has been a lot of discussion regarding farming
as it relates to different parts of the state. There are limited products and
limited cuttings here. She asked if there is room for interpretation regarding the
problem of limited income from farming in some parts of the state.
Ms. Hardy said she does not recall them addressing this. She agreed it is
different here than in the valley.
Jim Powell, currently a member of the Planning Commission that looked at this
previously, acknowledged the work of staff and the applicant, and that this is a
difficult issue. He had two things to address. Mr. Hunnicutt talked about this
being subordinate to agriculture. Mr. Powell did not find any reference in the
findings or referring to the link between hay sales and the application; a
justification of the link. It is hard to determine whether this meets the intent of
the task force or SB 960. He recalls when fabricating the ordinance, the County
can be more restrictive than SB 960, but not less.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 8 of 12
The second issue is the elephant in the application. During discussions at the
Planning Commission level, both in 2008 and 2011, there was a relationship
between people who wanted to hold events and those who opposed them.
There seems to be a lack of appreciation of the interdependence of the event
person and the neighbors. It takes little imagination to think things would
change if there was silage fermentation, a hog farm or spraying going on when
an event is being held. The tranquility and beauty of those who want to use
these venues is a community event and not just based on the subject property.
In the course of testimony, there were allegations that some event hosts have
been using tactics to intimidate or threaten neighbors. There were supposedly
threats of retribution. In the published findings, there are similar allegations.
One applicant’s name appeared in testimony this way. In his perspective, this is
bullying and should not be tolerated. Social coherence is essential for a
community. It is simply the fact that all people should feel nurtured,
acknowledged, valued and safe. He hopes the decision regarding this
application or future applications will reflect the fact that the desire of the
County is to indeed create a healthy community. Activities such as threats or
intimidation and a lack of feeing of safety will take years off someone’s life.
Paul Dewey, representing Central Oregon Landwatch, stated that most has
already been stated. He asked for the record to remain open for at least two
weeks to allow for review of documents.
Regarding ‘related to, supportive and incident’, he appreciates Mr. Powell’s
comments. Neighborliness and being interconnected, and what is done with the
land, are mportant. However this is resolved, its success will depend on
whether people support each other and accommodate each other’s ne eds. He
hopes this occurs.
William Kuhn said that he has testified at hearings like this before. At least
four times in 12 years he has mentioned this kind of thing. He asked, why not
create a neighborhood association to deal with these kinds of issues. The
concept of neighborliness is a key issue, solving issues together.
No other testimony was offered.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 9 of 12
Mr. Hunnicutt offered brief rebuttal. Mr. Gindlespurger raised the issue of
income no more than 25%. In this scant legislative history, there should be
some room. If the County chose to go below 50% it could, but he does not feel
that it should. As long as the farm generates more income from direct farming
than the other activities, it should apply. The 25% standard is found in the farm
stand provision, which is an outright permitted use. The sale of incidental items
is limited to 25% of sales at a farm stand.
In regard to related to and supportive of, events that the Downs want to conduct
will supplement the farm operation. They can use this income to enhance farm
operations. This is a good marketing opportunity, an actual farm use. There is
a direct tie-in and plenty of evidence of this. Whether a generalized, broad
definition or based on a particular set of facts is used, there is plenty of
evidence to determine this.
He agrees with keeping the record open for two weeks.
Nick Lelack said that the 25% limitation is in the farm stand and winery
statutes. Staff interprets there can be more flexibility in this regard.
Laurie: Leave written record open for 14 days (Sept. 12 5 PM, new info) and 7
days for response to what is submitted (9/19, 5 PM). Rebuttal 9/26 5 PM)..
Total of 28 days.
BANEY: Move that the oral part of the hearing be closed; that the written
record be left open until September 12 at 5:00 p.m. (14 days), with
seven days for responses to what has been submitted (September 19),
and rebuttal open until September 26 at 5:00 p.m. This allows a total
of 28 days.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
__________________________
Before the Board was Consideration of Approval of the Consent Agenda.
BANEY: Move approval with the exception of the minutes of the work
sessions which have not yet been reviewed.
UNGER: Second.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 10 of 12
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
Consent Agenda Items
4. Signature of Document No. 2012-430, a Contract for Subgrant between the
Children & Families Commission and MountainStar Family Relief Nursery
5. Signature of a Letter Appointing Phyllis Lewis to the Bicycle and Pedestrian
Advisory Committee, through June 30, 2014
6. Signature of a Letter Accepting the Resignation of Mike Bonetto from the
Public Health Advisory Board, and Thanking him for his Service
7. Signature of Letters Reappointing Jack Pribnow, Anthony Rosenthal and Keith
Winsor to the Public Health Advisory Board, through August 31, 2015
8. Approval of Minutes:
Board Meetings of August 20 and 22, 2012
Work Sessions of August 20 and 22, 2012
CONVENED AS THE GOVERNING BODY OF THE SUNRIVER
SERVICE DISTRICT
9. Before the Board was Consideration of Signature of a Letter Appointing
Bob Nelson to the Sunriver Service District Managing Board, through
August 31, 2015.
BANEY: Move approval.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
10. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
157,743.52.
Minutes of Board of Commissioners’ Business Meeting Wednesday, August 29, 2012
Page 11 of 12
BANEY: Move approval, subject to review.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H
COUNTY SERVICE DISTRICT
11. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-H County Service District in the
Amount of $786.19.
UNGER: Move approval, subject to review.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
12. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $390,727.79.
UNGER: Move approval, subject to review.
BANEY: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
DEBONE: Chair votes yes.
13. ADDITIONS TO THE AGENDA
None were offered.
Being no further items discussed, the meeting was adjourned at 11:35 a.m.
DATED this Day of 2012 for the .!:Jb ~~
Deschutes County Board of Commissio~m
Anthony DeBone, Chair
Alan Unger, Vi~
(}foATTEST:
Tammy Baney, CommIssioner ~~
Recording Secretary
Minutes of Board of Commissioners ' Business Meeting Wednesday, August 29,2012
Page 12 of 12
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DESCHUTES COUNTY
COMMUNITY DEVELOPMENT
117 NW Lafayette Avenue, Bend, OR 97701
Telephone (541 )388-6575, Fax (541 )385-1-764
CODE ENFORCEMENT COMPLAINT FORM
Instructions: In order for you complaint to be accepted, you must fill in all questions completely and
sign on the back of this form. It is important that you supply as much detail as possible . If you have
any questions, call code enforcement at 541-385-1707 .
Date: 201208 Zq "
Address ofViOlation(s):~~~~~~~~I~~Q~~~~~_~~~~~~~~~~~~~~~~
City: State: O ($. Zip:
Nearest Cross Street: it.~~ Sn<>t.6C,e.e)::. ~
Subdivision:
Residents Name: --~-JoF~~().::",:,,'!\,""f=--~_-r--__.......:-----Phone:
Owner of Property: ~oY\ ~ Yl"e-rkl (~ Pee.'(" ~
Address: .3'110 m lr"<,H' l"b 1\d. W~
City: _____-----"e.:;...;~'"""'rl'Ul-=:u..;e..=--State: _O,----,~~_____ Zip: q 7ajoe .
Details of COfI1Jlaint: This complaint is against Deschutes County CDD as much as it is against Ron and Marilyn Peery.
CDD has issued 3 renewal/extension pennits without verifying that the applicant has actually been doing what the LM and
CU requires as a condition of the pennit . The conditions of the LM 4 CU were created specifically as a result of the
COUNTY INIATED DR-07-3. MI'. Peel'Y wasn't being honest in his application for renewal when he said that "All
requirements to this point have been fulfilled.H
IF CDD isn't verifying and monitoring the LM and CU then WHO IS?
CU-08-38 and LM-08-!n REQUIRE that the owners SHALL maintain the wgetation... that regular irrigation of the new
trees continue until they are established... that the dead , dying and/or diseased wgetation be remowd AND replaced... that
there be a water storage facility be installed... and that an automatic irrigation system with Ilines supplying water from the
water storage facility to the new trees be maintained.
THIS HAS NOT HAPPENED.
ARE THERE ANY KNOWN OR SUSPECTED HAZARDS AT THIS LOCATION?
IE: Dangerous or unstable residents, dogs, criminal activity, etc.
( ) YES (X') NO () UNKNOWN
If yes, please identify the hazard in detait
**** Continue on reverse side ****
C[ Complainl Form Re v . 04 /11 Page 11
-----------------------
The top portion of this side is required and must be completed.
Complainant: (Your Name)
Name: W \ \ \, a..V"t\ Jo b y'\ K() h Vl
Address: ~~<l ~~q ~ City'e State' Of. Zip: ql108~S1qt.
Daytime phone #:(<e . -=-"""'-----
mofttJI,.{
Can violation be seen from the road? (X) Yes (k) No '1f not, what is the best inspection point?
F(<)V\'\ w>S'aQ S.~e'('t\o("'e R<i. ~~ )cz.ev.e-Ohotuc S prc:'>~
Is the Complainant a neighbor? (X) Yes ( ) No Ac.<o'K ii!dO' A
The complainant gives the Code Enforcement Technician permission to use their property for
viewing the violation: ( ) Yes ( ) No If not, why: _-"u_tt"""-___________
Will you, the complainant, testify in court, should the need arise? CXJ Yes ( ) No
(Note: your complaint may not be accepted without your being available to testify.)
If you have photos, or other related information, that can be used as evidence of this violation. please
submit them with this form. The submitted documentation will not be returned and will become part of
the complaint file.
By signing below, I declare, under penalty of perjury, that all information submitted on and
with this form is true and accurate to the best of my knowledge,
COMPLAiNAN
cOIz.oez'f. "3
DATE
Thank you for assisting in making Deschutes County a better place to live.
Your Code Enforcement Staff
***************************.******•••••••***.**••••••••••**••••••••••*•••••••••••*.*••••••**•••***•••••**••••••**••
••••*.**•••••******.****.****.*•••••***••***•••*•••••****••••••••••*••••••••••*.***•••••••••••••••**•••********
FOR OFFICE USE ONLY
____________ Block: ________Subdivision: Lot:
CE Complain! Form Rev. 04/11 Page 12
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Community Development D8Qartment
Planning Oivision
117 MAl Lafayette AII9I1U9. Bend, OR 97701-1925
(541) 388-6575· Fax (541) 385·1764
http://www.deschutes.org/cdd
APPLICATION FOR EXTENSION OF A LAND USE PERMIT
11
FEE: '3 i o_
Applicant's Name (print): ~N 7{ Fe £ ~V Phone; (SI{() a-tt-5""21/';"
Mailing Address: 3q{(J /V1 (R« ot? PDtJI> Wt:¥f Clty/StateJZip: E: (j 6-e.-N£1 tP«. '11lf 1) 8'
Property Owner's Name (if different)·:__S_··;tf __________.Phone: <_)
.....M'"""'""E ______
Mailing Address:._________________City/StatelZ1p: _________
Nature of Application: _______~_____________________
Property Description: Township IG Range 1/ Section :2,.0 /.;::;(!)_(J;:;..-.Tex Lot.......... _________
~schutescountYApPlicatiZnf'J41ler:i=M -a~-51 Cu-N ,.. ? P
Date of Approval: PermH Expntion Date:if1 301~g;5/191D 10 /JiJ:l () J.l
Property Zone: ..cE=-I'F---"U"-'l....:---_______________________
On the reverse side. or on a separate sheet of paper, please respond to the following:
1. Describe any action that has been taken to fulfill any or all conditions of approval.
2. Describe the reason{s) for not beginning or continuing development or meeting conditions of approval within Ihe
approval period.
Property Owner's Signature (if different)..:,_--c;..JI!IS..c;.x...L.J.-=:Io.-
Applicanfs Signature:_~~~~~~~.A:=~~...:;,:.;;......--------DaIe:,_------
________D,ate:._______
Agenfs Name {if applicable):.____.Ltt4~~"-.Lti""___________Phone: L-> ______
Mailing Address:_________________CitylStatelZip: _________
*If this application is not signed by the property owner, a letter authorizing signatur. by the applicant must be attached.
(over) Lr11-Ob -I:r -b. "7 -~. (U-0 z.. -I L q. m c. ,strll'Nhm:t 7109 l ,...4/ J IJ~ --q,~ I.t( c -70'-3/1. fL ~ -vJ-rV
'I
AUG 22 2UJI
'1) I>' J J'
I,
(This page may be photocopied if addi\ional space is needed,)
!~
DESCHUTES COUNTY
COMMUNITY DEVELOPMENT
117 NW !L afayette Avenue, Bend, OR 97701
Telephone (541 )388-6575, Fax (541 )385-1764
CODE ENFORCEMENT COMPLAINT FORM
Instructions: In order for you complaint to be accepted, you must fill in all questions completely and
sign on the back of this form. It is important that you supply as much detail as possible. If you have
any questions, cal,1 code enforcement at 541-385-1707 .
Date: 20)'2. 08 Zq , l
~ddress ofViolatiOn(S):~~~~~~~~' ~I~~~~~~~~~~~~~~~~~~~~~~~~~
City: State: 0 ($. Zip:
Nea re-st-C-r-o-s-s-S-t-re-e-t:---JIo!C.lo~::::;"',......-,-~.,t;.-~ Sn<)~C,~)::. R4
Subdivision:
Residents Name: __~oJ.<U..~:.:IQ..;:..'!\~t::'-'__T""-_-"______ Phone:
Owner of Property: ~Ol'\ ~ yV'p.ry\ l ~ 'Pe.e."(":2s
~ddress: .3'11 0 m lr"<~(' i'b'(\d w~
City: ~~~~~~e.;;:;;..~~.... State: ._;..,......;.
e.(l::o.L,;:e..::....-O ~"--~~~~_ Zip: q 7afoS
Details of COft1Jlaint: This cOft1Jlaint is against Deschutes County CDD as much as it is against Ron and Marilyn Peery.
CDD has issued 3 renewal/extension pennits without verifying that the applicant has actually been doing what the LM and
CU requires as a condition of the pennit. The conditions of the LN. 4 CU were created specifically as a result of the
COUNTY INIATED DR-07-3. Mf'. Peery wasn't being nonest in his application for renewal when he said that "All
requirements to this point haw been fulfilled."
IF CDD isn't wrifying and monitoring the LM and CU then WHO IS?
CU-08-38 and LN.-08-!)1 REQUIRE that the owners SHALL maintain the wgetation... that regular irrigation of the new
trees continue until they are established... that the dead, dying and/or diseased wgetation be remowd AND replaced... that
there be a water storage facility be installed... and that an automatic irrigation system with lines supplying water from the
water storage facility to the new trees be maintained.
THIS HAS NOT HAPPENED.
ARE THERE ANY KNOWN OR SUSPECTED HAZARDS AT THIS LOCATION?
IE : Dangerous or unstable residents, dogs, criminal activ ity, etc.
( ) YES (K) NO () UNKNOWN
If yes, please identify the hazard in detaH:
**** Continue on reverse side ****
CE Co nplaint Fo m ev . 04111 Pag 11
~ I
Community Development Department
117 NW Lafayett.e Avenue. Bend. OR 97701-1925
(541) 3Bs.6575 -Fax (541) 385-1764
Planning Division
http://wwvv.deschutes.org/cdd
APPLICATION FOR EXTENSION OF A LAND USE PERMIT
FEE: 1':2 tf.r=.!!.. .
AppUcant·s Name (print): "RaN f.. tJ A(<./LYtI E=E I<. Y Phone: ~'r6 -;;l,,/ 10 ~ . ~ 7
Mailing Address; 39/0 1'1 1i.8 (J8 /fwfp LJ.4v CitylStatelZJp: EUG:EA/E tY<97¥eJ3' ~ )
Property Owner's Name (if different)...:.----::S.:::::.L.AuM.;..:.ek=--_______......iPhone: L-> ______
Mailing Address: CilylStatelZlp: ________
Nature of Application: f(li.t{ v£~,... FtJi. I2xrrN31()N cF eOpIJ/llONAk ,,~£ PEf..M IT'"'"
Property Description: Townsh!P~Range II Section~() Tax Lot,--I_()~O________
Deschutes County Application Number: _-'Lt'1~..;...--=O....::8;..........:-s::.....:..I_______-:-_______
Date of Approval: 1/30/0 K Permit Expiration Date: WO,leiOIO
Property Zone: IiEI4 71<8 ) LM,.. wA
On the reverse side. or on a separate sheet of paper. please respond to the following:
1. Desaibe any action that has been taken to fulfill any or all conditions of approval.
2. Desaibe the reason(s) for not beginning or contInuklg deVelopment or meeting conditions of approval Ylrithin the
approval period.
_rK'Slgn_(j(1;~ Pa~ '-1/ P,()/O
Property Owner'1l Signature (If dlfferenl}*: _____________--'Dste:__________
Agent's Name (If applicable):_____________-----:Phone: L-> ______
Mailing Address:3<l/o Mt(848 fbIIP WAy CitylstatelZlp: £dUA/G.
)
of<. 91f()j
*H this application is not signed by the property owner•• letter authorizing signature by ~must be ....ched.
(over) SC '\ \ 1,.\)\\)
f-ID-~~ ;:..;---7~'
(This page may be photocopied If additional space is needed.)
I
Community Development Department
._ . -s.~:
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes .or.us/cdd/
August 15. 2011
Ron R. Peery
3910 Mirror Pond Way
Eugene, OR 97408
Re: E-11-47; Extension of Application LM-08-51 on Property Identified on
Deschutes County Assessor's Map 16-1 '1-20 as Tax Lot 100.
Dear Mr. Peery:
The Planning Division has reviewed your request for an extension of application LM-08
51 against t ihe criteria contained in Section 22.36.010(C) of the Deschutes County Code
(DCC). Based on the burden of proof statement submitted with the application, it is
staffs opinion the request satisfies all applicable criteria for approval.
This extension will allow a one-year extension of LM-08-51 to October 13 , 2012.
PLEAS.E NOTE: This is your second extension. You are eligible for one additional
one-year extension and one additional two-year extension pursuant to Dec
22.36.010(C)(3)). The approval granted under LM-08-51 will expire on October 13,
2012 unless the use is initiated or further extended. Additionally, please be aware
that conditional use permit CU-08-38 will also expire on October 13, 2012 unless
initiated or extended. If you have any questions regarding this matter, please feel free to
contact me at (541) 385-1401.
Sincerely,
DESCHUTES COUNTY PLANNING DIVISION
Kevin Harrison, Principal Planner
Quality Services Pel/ormed with Pride
(This page may be photocopied if additional&paoo is needed.)
·.
Community Development Department
Planning Division
117 NW Lafayette Avenue, Bend. OR 97701-1925
(541) 388-6575 -Fax (541) 385-1764
http://www.deschutes.org/cdd
APPLICA TION FOR EXTENSION OF A LAND USE PERMIT
(p /.25'/12
FEE:
Applicant's Name (print): 75P 1/ R, T 6. -E !2-f Phone: t?lI) SSt!-:)L<.j L
Mailing Address: 391CJ 1Yl/ R. j(C(2 ~!I/t:> City/State/Zip: E 1/~~N £... O,eQ7 'Iof5
)
Property Owner's Name (if different)*:, __.s=-;..IT~M~~~________-,Phone; ( ___) _______,
Mailing Address: __________________ ___Clty/StatelZip: ____ _____
Nature of Application: ______________ ____ _ __________________
Property Description: Township~Range II Section cR b Tax Lot~'-/..!oIO'-()=--------------
Deschutes County Application Number: L 06'-Si -f/
Date of Approval: 9/J())0 8". SaC/ito rf 8/1s /term it Expiration Date: I a /1 3 /;;L.
7 +t
Property Zone : ~~~LC;~L(~--_________ _ ______________________
On the reverse side, or on a separate sheet of paper, please respond to the following:
1. Describe any action that has been taken to fulfill any or all conditions of approval.
2. Describe the reason(s) for not beginning or continuing development or meeting conditions of approval within the
approval period.
Applicant ',8;gnotu,. Date:&;Z Q~
Property Owner's Signature (if different)*: _________________Date: _ _ _ ____ _
Agent's Name (if applicable):, ________ ____ _ _ _ __Phone: L-) ______ _
Mailing Address : '3'11 0 MI/Z..gl{)~ &lifJ City/StatelZip:E t/G-£AJE oR-17'1"r
)
"If this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached .
.. (over) _
7109
.,
Comm unity Development Department
Planning DivisIon Building Safety Division Environmental Soils Division
P.O . Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co .deschutes .or.us/cdd/
CERTIFICATE OF MAILING
FILE NUMBER: E-12-38
DOCUMENT MAILED : Decision Letter
MAPITAX LOT NUMBER: 16-11-20, Tax Lot 100
I certify that on the 3rd day of July, 2012 the attached notice(s)/report(s), dated July 3,
2012, was/were mailed by first class mail, postage prepaid, to the person(s) and address(es) set
forth on the attached list.
Dated this 3rd day of July, 2012,
COMMUNITY DEVELOPMENT DEPARTMENT
By: Sher Buckner
Ron R. Peery
3910 Mirror Pond Way
Eugene, OR 97408
Quality Services Performed with Pride
.
.
Community Development Department
Planning Oivl,lon Building Safa't~ Division Enllironme1'ltal Soils Division
P.O. Bo)( 6005 117 N'i'J Lafayette Avenue Bend. Oregon 97708-·6005
(541)388-6575 FAX (541)385-1764
http://www.co .deschutes,or.lIs/cdd/
July 3, 2012
Ron R. Peery
3910 Mirror Pond Way
Eugene, OR 97408
Re: E-12-38; Extension of Applications LM-08-51 and CU-08-38 on Property Identified on
Deschutes County Assessor 's Map 16-11-20 as Tax Lot 100
Dear Mr, Peery :
The Planning Division has reviewed your request for an extension of applications LM-08-51 and
CU-08-38 against the criteria contained in Section 22 .36 .010(C) of the Deschutes County Code
(DCC). Based on the burden of proof statement submitted with the application, it is staff's
opinion the request satisfies all applicable criteria for approval.
The dwelling approved under CU-08-38 constitutes a nonfann dwelling as described in Section
22.36.010 (8)(4)(a). This extension request was submitted before the end of the expiration date
approved under CU-08-38. Section 22.36.010 (C)(2) allows for the granting of a two-year
extension for those dwellings listed under DC C 22.36 .010 (8)(4) where, as here, the applicable
criteria have been met The extension request was also submitted before the end of the
expiration date for LM-08-S1, as extended by E-11-47.
This extension will allow a two-year extension of CU-08-38 to October 13, 2014 and a one-year
extension of LM-08-51 to October 13, 2013 . PLEASE NOTE: This is your first extension of
CU-08-38 and your third extension of LM-OB-S1. You are eligible for two additional
extensions of CU-08-38 and one additionat extension of LM-08-51. The approval granted
under CU-OB-38 will expire on October 13, 2014 and the approval granted under LM-08-51
will expire on October 13, 2013 unless the use is initiated or further extended. If you have
any questions regarding this matter, please feel free to contact me at (541) 385-1401.
Sincerely,
DESCHUTES COUNTY PLANNING DIVISION
.~~
Kevin Harrison, Principal Planner
QlIIllity Services Pt!~lormtd with Pride
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: CU-08-38, LM-08-S1
APPLICANTS!
PROPERTY OWNERS: Ron and Marilyn Peery
3910 Mirror Pond Way
Eugene, Oregon 97408
APPLICANTS'
ATTORNEY: Stephanie Hicks
Ban Janik, LLP
15 S.W. Colorado Avenue, Suite 3
Bend,cnegon97702
REQUEST: The applicants request conditional use and LM site plan review to
establish a nonfarm dwelling on a parcel zone EFU-TRB, LM and
WA located northwest of Bend on Sisemore Road.
STAFF REVIEWER: Anthony Raguine, Senior Planner
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, tbe Deschutes County Zoning Ordinance
1. Chapter 18.16, Exclusive Farm Use Zone -EFU
• Section 18.16.030, Conditional Uses Permitted -1Iigb Value and Nonbigh
Value Farmland
• Section 18.16.050, Standards for OweUings in tbe EFU Zones
• Section 18.16.060, Dimensional Standards
• Section 18.16.070, Yards
• Section 18.16.090, Rimrock Setback
2. Chapter 18.84, Landscape Management Combining .zone -LM
• Section 18.84.020, Application of Provisions
• Section 18.84.050, Use Limitations
• Section 18.84.080, Design Review Standards
*Section 18.84.090, Setbacks
3. Chapter 18.88, Wildlife Area Combining - W A
• Section 18.88,040, Uses Permitted Conditionally
• Section 18.88.050, Dimensional Standards
• Seetion 18.88.060, Siting Standards
Peery Dwelling I
CU-08-38~-08-51
Page 1 of28 ~ I; I
I f
Page 2 of2
We hope that all further disturbance to this site, building plans,etc. should be curtailed until the current owners are
contacted and and the county has had a chance to asses the situation ..
Thank you,
Irene Hardwicke Olivieri
65580 Sisemore Road
Bend, Oregon 97701
385-9254
irene@yellowknifewireless.net
8/29/2012
Page 10f2
Main Identity
From: "Irene" <irene@yellowknifewireless.net>
To: <kevinh@co.deschutes.or.us>
Cc: "Larry Pecenka" <Larry, L.Pecenka@STATE.OR.US>; <toma@co.deschutes.or,us>;
<cmorrow@co,deschutes.or.us>; <anthony@co.deschutes.or,us>; <timg@co,deschutes.or.us>;
"Lance Olivieri" <Iolivieri@steele-arch.com>
Sent: Tuesday, January 30, 2007 9:34 AM
Subject: Recent Land Use Action E072/please help ....
Dear Kevin,
Ron and Marilyn Peery just filed for Deschutes County Land Use Action
E072 01/26/07 RON AND MARILYN PEERY 65590 SISEMORE RD,BE
REQUEST: EXTENSION REQUEST FOR CU-02-124 AND MC-06-2.
Because this is a land use action and because of the recent destruction of trees and wildlife habitat
outside of the approved building envelope, in violation of CU-02-124 AND MC-06-2, we are specifically
requesting the County to deny their request for an extension. (or a temporary tolling of the clock if
requested by the current property owners). until the clearing issue has been resolved, We filed a code
violation complaint on Friday. January 26th against the current property owners regarding the clearing
We are concerned since the activity on the land seems to portray a serious disregard for the restrictions
that are part of the current Deschutes County CUP and also the Wildlife Habitat Conservation
Management Plan agreement with the ODFW for tax deferral which is currently in place on the property.
It is especially disturbing because when I met the owner, Ron Peery and his realtor, Jack Rinn on
Monday September 18 I spoke to them about the restrictions on the land, the wildlife overlay, landscape
management plan as well as the conditional use permit not allowing cutting on the land outside of the
approved building pad. I have a deep respect and love for the landscape and the animals who live here
and I was very happy to have a chance to meet our new neighbor and talk about these important
issues.
I was also eager to tell him before he started work on his property because the previous owner, Rob
Wesson. had cut down many old growth junipers far outside of his allowed area. (And before we
could react to that, he sold the property exactly one week later)
Another reason I wanted to make sure that Ron Peery knew about the restrictions is because when we
bought our property next door, our realtor did not tell us of these restrictions and I knew how important it
was that Ron Peery understood this prior to cutting trees ..
Mr Peery and Mr Rinn both acknowledged to me (standing in front of our house on the morning of
September 18) that they were aware of these restrictions and were going to be extremely careful about
cutting trees. They mentioned that they would be meeting with wildlife biologist Larry Pecenca at ODFW
for his input and intended to stay active in the wilfdtife management plan. Shortly after, Mr Peery and
Mr. Rinn spoke with Larry Pecenca and assured him as well that Mr, Peery was going to be very careful
about not destroying the habitat. Mr. Pecenca and I even spoke about how fortunate I was going to be to
have new neighbors that seem to care so much about the wildlife habitat, protecting the land,etc.
Then, on January 19, approximately 2-3 acres on Mr. Peery·s land were
clearcut with logging equipment.
Approximately 8000 sf of wildlife habitat and 14 trees on our land were also destroyed during this
clearcutting.
While I beleive the destruction of trees and other vegetation on our land was an accident, I mention it
here because it happened and there was no regard to property lines.
The property lies within the Tumalo Winter deer Range which is considered a Wildlife Combining Zone
and tree cutting restrictions outside the approved building envelope and within the scenic corridor are in
place,
8/29/2012
There may be differences with what is to be done inside the building envelope and
outside. Ofcourse. the Wildlife Habitat agreement is to be a consideration coupled with
on the grOlmd issues of esthetics, etc.
We see some tree removal 1 _some limbing.ftom greiund up; S0m.e limbing 0f select
in tree limbs, brush and root ball removal, etc.
Don't forget the iSsue of fall burning ofpiles; this should be part ofpricing.
Please. give us yOUl ideas and opti0ns surrounding pricing like chipping left on ground,
chipping removed from property. chip piles to be burned; hand removal-of all, etc. This
includes existing downed ugly stuff. Maybe some of the work should be time and
materialS ...
Removing barbed wire on pro~is to be.. done;. tbis:youmay wish-to do as time
and material as no one knows exactly how much wire there is.
Some details: as a licensed' contractor you certainly have workmans' compo
insurance andlia.bility should a fire start and getta neighboring property. OfCourse the
fire index needs to be down before work would. commence. 1-would like to·be on site the
1st day you commence to answer any questions.
Please bid as follows: 1) ChippiDg..andleavmgallmaterial 2} Chipping,
falling, limbing and burning material 3) Removal of al1 material.
We will contact you as to a time to get together with Larry. Anytime you can
oontact Jack Rinn or Christin Barber, as they are sometimes easier to reach and-we will
be working with them.
S6r:17
Ron Peery
P.S. I am in the process oftrying..to sc.hedulea:meeting fer you-andI witklarry Pecenlat
and will coordinate with your schedule.
September 11,2006
Wade Fagan
Fagen Trees & Chips
1328 NE Seward
Ben~ OB.97701
Dear Wade
Thank.sfO.l' coming,to.our pr.opetty; ¥Oll.ha.vedone 80 ,BOW twice and ·we 'are
confident we are in good hands.
Whether we build or someone else surfaces1:hat wants the property even more
than we do,it.is vital that.this buildiDg.siteJook like a million dollars! Potentially this is
a one-of-a-kind parcel. In the entire proximity there are only 4-private parcels. One is
across Sisemore; that person you saw come introduce himself the day we'were there. The
house we pass on the driveway; and one site behind it [not yetbtiilt], and our 13.2~acres
are it!
Two sides of our property (a short balf-mile] border BLM land. BLM designates
their bmd ilSspecial resource [refers.to wildlife winter range). And, our property and the
other three.are .under.a WUdlife Habitat Conservation and Management Plan. These
elements, coupled with the view corridors we create and the near foreground that.is forest
and void of development to us makes the property very special indeed. From the logical
building site the ground slopes down. west, north, and east This reliet: especially west
and nortb.affords the expansive :view·ofrore~t lands in the foreground 'with snow capped
mountains on the horizon! Even east it is difficult to see development.
To us as well .as l.ack and c:btistin,olll' vision ,ls.a site with ¥iew corridom.of the
mountalns.From West toNorth these may include: Broken Top, Three Sisters. Mt.
Washington, Three·F~lac~ Black Butte, Mt. Jefferson, and even Mt.. Hood. on a
clear day! You may refer to thelIDap enclosed .
. Some select foreground-expansive views"across'thefurestbelow may benefit trom
select cutting, limbing, brush removal and the like.
You may teferto the building envelope map enclosea The o1ack circles are
specific trees. I am assuming; but you wiIl1eam direct from Larry Pecenka, th,!1 these
must be left. ] act says that he just received an inch of material'from Larry. He notes that
older Bitterbmsh and 8-inchjuniper may be fair game, and.!.think we should:c1ear as
much as is reasonable.
•
.,(". .~
... ~ ....... -.
To: i:7a:. ~~\~~~~~H~'-'
From:
Subject ODPW Larry Pecenka
Date: 5~16-06
I emailed Larry to introduce myself and the new owners. We then talked by phone .
.He already Jtnew about the sale;. he learned from neighbors Oliveri. We must assume
they told him in the interest ofenforcement. I couldn't ask him. It makes no difference
we expect to follow the rules!
He was nice to talk to. One thins.he said is that you can buy your way.out of the
program; I told him the owners would not wish to. I thought the program is a positive for
the property.
He said we can offhau11ogs/limbs, etc. They like some left, but they are concerned with
fire fuels too~ He is happy to meet us out there any time although he is not feqriired to.
He was impressed that no wheeledltracked equipment would be used. From ODFW
standpoint they wish lots ofjunipers 8" and below removed (8" at chest height}.
I told him we might mark some and ask he loolc at them in advance. He said he would if
we-wished;
·
,
Uoineorporated Community -La Pine, to be eoostructed as far
south 00 their lots as is necessary and feasible.
* • ..
FINDINGS: The applicants' submitted building elevation drawings show the proposed dwelling
would have a rnaximwn roof peak height of approximately 22 feet, requiring a 45-foot solar
setback. The applicants' submitted site plan shows the proposed dwelling would be located least
167 feet from the northern property line, therefore satisfying the required building setback for the
protection of solar access.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicants' proposed conditional use permit and LM site plan review for a
nonfarm dwelling on the subject property, SUBJECT TO THE FOLLOWING CONDITIONS
OF APPROVAL:
1. This approval is based upon the applicants' submitted site plan. building elevation drawings,
landscape plans, supplemental materials, and written and oral testimony. Any substantial
change to the approved plan will require a new land use application and approval.
PRIOR TO OBTAINING A BUILDING PERMIT FOR THE DWELLING:
2. The appUcants/owners shall sign and record with the Deschutes County Clerk a document
binding the landowner, and the landowner's successors in interest, prohibiting them from
pursuing a claim for relief or cause of action alleging injury from farming or forestry
practices for which no action or claim is allowed under ORS 30.936 to 90.937.
3. The applicants/owners shall obtain an approved Authorization Notice or Septic Site
Evaluation from the Deschutes County Environmental Health Division.
4. The applicants/owners shall comply with all requirements of the Cloverdale Rural Fire
Protection District identified in the district's July 11, 2008 comment letter, and shall
provide to the Planning Division written documentation that all such requirements have
been met.
WITH CONSTRUCTION OF THE DWELLING:
5. The applicants/owners shall protect and preserve the three trees located near the dwelling
footprint by hand digging for the foundation near these trees.
6. The applicants/owners shall plant the additional vegetation depicted on the August 20,
2008 Sandrock Landscape Design landscape plan included in this record.
I
I
Peery Dwelling
CU-08-38/LM-08-51
Page 27 of2S
t • ."
AT ALL TIMES:
7. Except as allowed under Section 18.84.080(A), the applicants/owners shall retain on the
subject property all trees and other vegetation that existed on the site as of June 5, 2008
and that provide screening ofthe dwelling from Sisemore Road.
8. The applicants/owners shall continuously maintain the vegetation depicted on the August
20. 2008 Sandrock Landscape Plan. Required maintenance shall include the following:
a regular irrigation ofthe new trees until they are established;
b. removal and replacement of dead, dying and/or diseased vegetation;
c. installation of a water storage facility on the subject property, such as a water
tank, and if a water tank is installed above ground it shall have an earth-tone color
exterior or be camouflaged so it is not visible from Sisemore Road; and
d. an automatic irrigation system with lines supplying water from the water storage
facility to the new trees.
9. The applicants/owners shall install any exterior lighting, including security lighting, so
that it is directed downward and is not directly visible from Sisemore Road, and in
compliance with the county's outdoor lighting ordinance. Chapter 15.10 of the Deschutes
County Code.
10. The applicants/owners shall install any new fencing on the subject property in
compliance with the fencing standards in the WA Zone as described in Section 18.88.070
ofthe Deschutes County Code.
11. The applicants/owners shall apply for a building permit for the approved dwelling within
two (2) years of the date this decision becomes final. or obtain approval of an extension
under Title 22 ofthe Deschutes County Code.
Dated this 304:day of September, 2008.
4'/!.
Mailed this ~ay of September, 2008.
~dLKaren H. n, Hearings Officer
Tms DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
Peery Dwelling
CU-08-38ILM-08-51
Page280f28
Introduction
The hearing is open. This is a hearing on a review of the Planning Division's decision on
application no. LUP-12-2, submitted by Kerry and Deborah Downs.
The applicant has requested approval of a Limited Use Permit for a commercial events
facility consisting of up to 6 weddings on the applicant's property on Dodds Road. This
application was approved administratively by the County Planning Division in the written
decision mailed out on June 15, 2012. Pursuant to DCC 22.24.020(B) the administrative
decision was called up for review by the Board of County Commissioners without the
necessity of an application going before the Hearings Officer. This hearing is being
conducted in accordance with the procedures established under Title 22 of the
Deschutes County Code, and is being heard de novo before the Board.
Burden of proof and Applicable criteria
The applicant has the burden of proving that they are entitled to the land use approval
sought. The standards applicable to the applications are listed on the administrative
Findings and Decision document located at the table next to the entrance to this hearing
room.
Failure on the part of any person to raise an issue, with sufficient specificity to afford the
Board of County Commissioners and parties to this proceeding an opportunity to
respond to the issue precludes, appeal to the Land Use Board of Appeals on that issue.
Additionally, failure of the applicant to raise constitutional or other issues relating to the
proposed conditions of approval with sufficient specificity to allow the Board to respond
to the issue precludes an action for damages in circuit court.
Hearings Procedure
The procedures applicable to this hearing provide that the Board of County
Commissioners will hear testimony, receive evidence and consider the testimony,
evidence and information submitted into the record, and will be the basis for their
decision. The record as developed to this point is available for public review at this
hearing.
Order of Presentation
The hearing will be conducted in the following order. The staff will give a staff report of
the prior proceedings and the issues raised by the applicant/appellant. The applicant will
then have an opportunity to make a presentation and offer testimony and evidence. The
Chair will then individually call each person who has completed the sign-up form to allow
those individuals to testify. After all who have completed the sign-up forms have either
testified or waived testimony, the applicant will be allowed to present rebuttal testimony.
but may not present new evidence. At the Board's discretion, if the applicant presented
new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. At
the conclusion of this hearing, the staff will be afforded an opportunity to make any
closing comments. The Board may limit the time period for presentations.
Cross-examination of witnesses will not be allowed. A witness who wishes, during that
witness' testimony, however. to ask a question of a previous witness may direct the
question to the Chair. If a person has already testified but wishes to ask a question of a
subsequent witness, that person may also direct the question to the Chair after all other
witnesses have testified, but prior to the proponent's rebuttal. The Chair is free to decide
whether or not to ask such questions of the witness.
Continuances: The grant of a continuance or record extension shall be at the discretion
of the Board.
If the Board grants a continuance, it shall continue the public hearing to a date certain at
least seven days from the date of this hearing or leave the written record open for at
least seven days for additional written evidence.
If at the conclusion of the hearing the Board leaves the record open for additional written
evidence or testimony, the record shall be left open for at least seven days for submittal
of new written evidence or testimony and at least seven additional days for response to
the evidence received while the record was held open. Written evidence or testimony
submitted during the period the record is held open shall be limited to evidence or
testimony that rebuts previously submitted evidence or testimony.
If the hearing is continued or the record left open, the applicant shall also be allowed at
least seven days after the record is closed to all other parties to submit final written
arguments but no new evidence in support of the application.
Pre·hearing Contacts. Biases. Conflicts of Interests
Do any of the Commissioners have any ex·parte contacts, prior hearing observations,
biases, or conflicts of interest to declare? If so, please state the nature and extent of
those.
Does any party wish to challenge any Commissioner based on ex·parte contacts, biases
or conflicts of interest?
(Hearing no challenges, I shall proceed.)
l
PUBLIC HEARING
Limited Use Permit
LUP-12-2
Board of County Commission
August 29, 2012
Staff Report
•Background
•Proposal
•Property
•Criteria
•Findings & Decision
•BOCC Options
•Questions
Background
•Deschutes County adopted Ord. 2012-004 on
April 17 implementing SB 960 into County
Code, including 3 types of agri-tourism &
other commercial events and activities with a
Limited Use Permit (LUP)
•Type 2 LUP application submitted on May 11
•Application complete on May 29
•Administrative decision to approve LUP-12-2
issued on June 15
•BOCC approved Order 2012-031 to initiate
review, or “call-up,” the decision on June 18
Applicant’s Proposal
•Type 2 Limited Use Permit for up to 6
commercial events/weddings each year from
June 1 through Sept. 30.
•125-150 people in attendance.
•Conceptual Schedule:
–Set-up on Fridays (2-3 hours)
–Wedding party (12-20) arrives at 1 p.m. on
Saturdays
–Attendees arrive at 3:30
–Wedding & reception: 4:00-10:00
–Clean-up/take down on Sundays (2-3 hours)
Property
ADDRESS 24885 Dodds Road
SIZE 39.83 acres
ZONING Exclusive Farm Use (EFU)
•Parking / buildings / activity areas
comply with minimum setbacks
•Irrigated grass hay field, farm
buildings, house, open-air structure
approved for public occupancy with
restrooms
Kerry & Deborah Downs Property
Residences in the area
Access
Events
Parking
Neighbor
Criteria
•Deschutes County Code
–Title 18 Zoning Ordinance
–Chapter 18.16 EFU Zone
–Section 18.16.042 Agri-tourism and
other Commercial Events or
Activities Limited Use Permit
•ORS 215.216
Administrative Decision
•Staff found the property and proposal
comply with the approval criteria,
including the key criteria:
–Farm use
–ORS 215.296 - will not force a significant
change or increase the costs of farm/forest
practices
–Related to & supportive of agriculture
–Incidental & subordinate to the existing farm
use
Key Findings
•Related to & supportive of agriculture;
incidental & subordinate to existing farm
use
–Terms are not defined in SB 960 or in
Court/LUBA decisions (referenced in some
cases, but each case is unique)
–Staff researched meanings of terms in:
•DLCD’s “Guide to Wineries and Events in EFU
Zones”
•Webster’s New World Dictionary
•AOC Farmland Activities Task Force Final Report
and Recommendations
–Staff applied meanings & intent of the terms
to this application
Key Findings
•Related: “connected or associated, as by
origin or kind”
•Supportive: “that gives support, help or
approval”
•Incidental: “happening as a result of, in
connection with something more; secondary or
minor”
•Subordinate: “inferior to or placed below
another in rank, power, importance, etc.;
secondary”
Key Findings
•How is the commercial event related to &
supportive of agriculture? DLCD Guide:
–“physically and/or economically logically
connected to, and supports, an existing on-
site farm operation.”
–“’related to’ could mean that the proposed
event involves a product that is produced on
site that has a meaningful and significant
relationship to the proposed event.
‘Supportive of’ could involve the generation
of supplemental income to support the farm.”
Key Findings
1.Commercial weddings are allowed by SB
960 and County Code (pages 9-11)
2.Commercial weddings are physically
and/or economically connected to a hay
operation. How?
–People choose to have weddings in
pastoral settings
–Weddings are economically connected to
the farm by: (1) sales of hay generated
from attendees; and (2) supplemental farm
income
Key Findings
•How is the commercial event incidental
& subordinate to the farm use?
1.Amount of time and land used for the
weddings compared to the farm use
2.Total amount of time for commercial
events (6 days) is less than 5% of the
amount of time for farm production each
year (183 days)
3.Land area used for events, 3 acres
(including parking), is less than 10% of land
area used for farm use, 34 irrigated acres
Key Findings
Traffic management / traffic control:
•Code requires: “There shall be one traffic
control person for each 250 persons expected
or reasonably expected to be in attendance at
any one time.”
•Staff interpretation: 1 traffic control person is
required up to 250 attendees.
•Applicant interpretation: 1 traffic control
person is required for 250 or more attendees.
•Staff seeks Board interpretation of this
criterion.
Administrative Decision
•Approval with 13 conditions requiring
compliance with County Code & State
Laws
Board Options
Following oral testimony at today’s public
hearing, the Board may:
1.Continue the public hearing to a date & time
certain (oral & written records).
2.Close the oral record & keep the written
record open to a date certain, and conduct
deliberations at a subsequent meeting.
3.Close the oral and written records, and
begin/conduct deliberations today or at a
subsequent meeting.
Board Options
Since this is the 1st public hearing, the
BOCC may:
1.Today: hold public hearing & close oral record
2.Wed., Sept. 5 at 5 p.m.: new information due
3.Wed., Sept. 12 at 5 p.m.: rebuttal of
information due
4.Wed., Sept. 19 at 5 p.m.: final arguments by
applicant due
5.Mon., Sept. 24 at 10 a.m.: Board deliberations
(staff to write decision following deliberations)
6.Mon., Oct. 1: Board decision
QUESTIONS?
AFFIDAVIT OF KERRY DOWNS
I, Kerry Downs, being first duly sworn, depose and say that:
I am one of the applicants, along with my wife, in LlIP-12-2. We are seeking approval to use our
property for a limited number of commercial events or activities.
Our property is in active farm use. We produce grass hay on the property. In the last three years (2009,
2010, 2011), we have grossed $19,858, $22,516, and $20,205, respectively, from the sale of grass hay
raised on the property. The annual production of hay on our property ranges from 8D-l00 tons. At
current hay prices of $225/ton, we expect to continue to gross between $18,000 and $22,500 for our
farm use of the property.
We will charge no more than $2,000 for a wedding or other commercial event or activity on the
property. If we receive our approval, we will gross no more than $12,000 for use of our property for
commercial events or activities, far less than what we have grossed or project to gross from farm use of
the property.
The money which we make from the commercial events or activities on the property will be used to
supplement our income generated from hay sales, to allow us to keep the property in farm use and
support our farm operation. In addition, prior to 2010, we held a number of weddings on the property.
During those events, I met a number of guests who were in attendance and who were interested in
purchasing hay grown on the property. As a result, a number of hay sales were generated from the
events we held on the property. We suspect that will continue, and will market our hay when guests
attend a commercial event or activity on the property.
I have reviewed the list of neighboring properties found in the Planning Directors Findings and Decision
in our case. The properties on that list are representative of the properties in the area in all accounts,
including parcel size, predominant use, and ownership patterns. I am not aware of any pesticide
spraying on any of the properties in the list, and especially not during the summer or during the evening
when we would hold an event. While there may have been some isolated herbicide spraying on a few of
the parcels in the past, it was done during the spring, when I would not be holding an event, and I do not
recall there ever being any spray drift onto the property.
DATED this 28th day of August, 2012.
SUBSCRIBED AND SWORN before me this 28th day of August, 2012.
I
Hay Sales via introduction through hosted wedding on property
Bates
Attended a wedding 8/09
2009 2 tons
2010 5 tons
2011 6 tons
2012 2 tons
Carhol
Attended a wedding 8/1 0
2010 1 ton
Thembley
Attended a wedding 7/09
2009 11.76 tons
Fichter
Attended a wedding 9/09
2009 4 tons
2010 8 tons
2011 10 tons
2012 5 tons
Devencenzi
Attended a wedding 8/09
2010 10 tons
2011 12 tons
2012 6 tons
Roberts
Attended a wedding 9/09
2009 3 tons
$370
$875
$1080
$510
$185
$2050
$740
$1240
$2100
$1100
$1550
$4410
$1320
$585
I N ACT ION
Leg a C e n t e r
August 24,2012
Deschutes County Board of Commissioners
Deschutes Services Bldg.
1300 NW Wall St., Suite 200
Bend, OR 97701
Re: LUP-12-2
Applicant: Kerry and Deborah Downs
Dear Commissioners:
The Oregonians In Action Legal Center represents the applicants in the above-numbered
matter, and offers this memorandum in support of the application. Please enter this
memorandum into the record ofthese proceedings.
The applicants concur with the Findings and Decision made by the Planning Director in
this matter, dated June 15,2012, and urge the Board to affirm that decision. The applicants have
introduced evidence in the record to satisfy each of the criteria to operate a commercial event or
activities facility on their property, as authorized by DCC §18.16.042. Therefore, their
application should be approved.
We are mindful that this is the fIrst opportunity for the Board to interpret this new section
of the DCC, and that we are, for lack of a better term, the "guinea pigs" in a case that will likely
work its way up the ladder to the Oregon appellate courts. As a result, it is imperative that the
Board fIndings address each ofthe criteria with specifIcity. With that in mind, we offer the
following additional comments to supplement our previous submittals.
INCIDENTAL AND SUBORDINATE
We suspect that one ofthe primary points of dispute in this application will turn on
whether the applicants' proposed use is "incidental and subordinate" to the farm use they are
engaged in.on the subject property, as required by DCC §18.16.042(C)(2)(d). The phrase
"incidental and subordinate" is not defIned in either the DCC or ORS 215.283(4), the state
statute which allows the county to approve commercial event or activities facilities in EFU
zones. Consequently,the Board must rely on alternative sources to make the determination of
what that phrase means, and apply it to the facts of this case to reach a decision.
As you know, since DCC §18.16.042 is closely patterned upon ORS 215.283(4), and
since the "incidental and subordinate" requirement appears in both the DCC and the statute, any
effort by the Board to derme the phrase "incidental and subordinate" must comply with the
legislature's intent in codifying that phrase in statute.
Mailing Address: P.O. Box 230637 • Tigard, OR 97281-0637
Street Address: 11735 S. W. Queen Elizabeth Street, Suite 101 • King City, OR 97224
(503) 620-0258 • FAX (503) 639-6891 • website: www.oia.org
The process by which an Oregon court (or LUBA) interprets a statute is set forth in State
v. Gaines, 346 Or 160 (2009). In Gaines, the Oregon Supreme Court set out the following
methodology for interpreting a statute:
"We therefore conclude that, in light of the 2001 amendments to ORS 174.020, the
appropriate methodology for interpreting a statute is as follows. The first step remains an
examination of text and context. PGE, 317 Ore. at 610-11. But, contrary to this court's
pronouncement in PGE, we no longer will require an ambiguity in the text of a statute as
a necessary predicate to the second step --consideration of pertinent legislative history
that a party may proffer. Instead, a party is free to proffer legislative history to the COUlt,
and the court will consult it after examining text and context, even ifthe court does not
perceive an ambiguity in the statute's text, where that legislative history appears useful to
the court's analysis. However, the extent of the court's consideration of that history, and
the evaluative weight that the court gives it, is for the court to detennine. The third, and
final step, of the interpretative methodology is unchanged. If the legislature's intent
remains unclear after examining text, context, and legislative history, the court may resort
to general maxims of statutory construction to aid in resolving the remaining
uncertainty. "
Gaines, 346 Or at 171-72 (2009).
Applying Gaines, there is nothing in either the text ofORS 215.283(4)(c)(A), or the
surrounding context to indicate what the legislature intended the phrase "incidental and
subordinate" to require. The tenn is not defmed anywhere in Oregon statute, and appears in only
two other statutes -ORS 215.213 (the equivalent ofORS 215.283 for Oregon's two marginal
lands counties -Lane and Washington), and ORS 215.453, relating to wineries.
There is, however, a small bit of legislative history that is helpful in detennining what the
legislature intended the phrase "incidental and subordinate" to mean. ORS 215.283(4), the
subsection authorizing commercial events in EFU zones, was adopted by the Oregon Legislature
in 2011 as Senate Bill 960. SB 960 was adopted by the Oregon Senate on June 2,2011, and was
sent to the Oregon House of Representatives, where it was subsequently referred to the Oregon
House Rules Committee. .
The House Rules Committee held a public hearing on SB 960 on June 9, 2011. At that
hearing, Art Schlack, the land use specialist for the Association of Oregon Counties, and a
person who was instrumental in the drafting and negotiations leading to the passage of SB 960,
was asked by Representative Paul Holvey, a member of the House Rules Committee, what the
tenn "incidental and subordinate" meant. In his response, Mr. Schlack indicated that the phrase
was not defined in SB 960, that it had been used in conjunction with other land use activities in
the past and has some historical use, and that it "certainly is less than 50 percent, but at this point
there is not a clear definition of incidental and subordinate."
In response, Representative Holvey asked if Mr. Schlack's "less than 50 percent"
comment was directed at the uses. Mr. Schlack responded that it was "less than 50 percent of the
income." That was the conclusion of the hearing. The House Committee then proceeded to
immediately vote on the bill, the bill was approved unanimously, and the bill was subsequently
approved by the Oregon House on a 53-5 vote.
Assuming, based on the aforementioned colloquy between Mr. Schlack and
Representative Holvey, that the legislature intended the phrase "incidental and subordinate" in
ORS 215.283(4)(c)(A) to require that less than 50 percent of the income generated by use of the
property to come from the commercial events and activities authorized by the statute, the
applicants in this case more than meet that test. Mr. Downs has previously submitted his IRS
1040 Schedule F returns for the last three tax years. The Schedule F documents show the farm
income which the applicants generate from "farm use" on the subject property. The applicants
income from farm use on the subject property for the last three years was $19,858 (2009),
$22,516 (2010), and $20,205 (2011).
As the attached affidavit from Mr. Downs indicates, the applicants will not charge more
than $2,000 per commercial event on the subject property. This amount represents the entire fee
which the applicants receive from each commercial event. Assuming the applicants book all six
events which would be authorized by their application each year, the maximum amount of
income they will generate from the use ofthe subject property for commercial events is $12,000.
This amount is significantly less than 50 percent of the income which the applicants receive from
the production and sale of hay grown on the subject property. In other words, the use of the
property for commercial events is "incidental and subordinate" to the use of the property for hay
production, which is obviously a "farm use" as that term is defined in ORS 215.203.
Moreover, as Mr. Downs indicates, the current market price for hay is $225Iton. The
annual production of hay from the subject property is 80-100 tons. At today's price, the
applicants will gross $18,000 to $22,500 from the sale of hay. This amount greatly exceeds the
amount which the applicants will gross from use ofthe subject property for commercial events or
activities.
Alternatively, if the County wishes to adopt a different test for "incidental and
subordinate," the applicants meet those tests as well. For example, in the Planning Directors
Findings and Decision, staff adopted an analysis that the use of the subject property for
commercial events and activities was "incidental and subordinate" to the primary farm use of the
property based upon the very minor percentage of the calendar year that the property would be
used for commercial events compared to the amount of time the property was used for farm use,
or, alternatively, the relatively minor portion of the property devoted to the commercial activities
compared to the portion of the property dedicated to farm use. Under either of those two
scenarios, the use of the property for commercial events will be "incidental and subordinate" to
the farm use on the property.
The applicants agree with the foregoing staff analysis, but urge the Board to make
subsequent findings that the proposed use would also be "incidental and subordinate" based upon
the income test.
Finally, a review of prior Oregon case law does not provide much useful guidance on
what the phrase "incidental and subordinate" means for purpose ofORS 215.283(4)(c)(A). For
example, in Reed v. Jackson County, LUBA No. 2009-136 (2010), LUBA held in dicta that:
"n3 We seriously question whether large commercial weddings held on EFU-zoned
property would satisfy the requirement that the accessory use be "incidental and
customarily subordinate to principal uses" and "necessarily and customarily associated
with, and appropriate, clearly incidental, and subordinate to" the principal farm uses
allowed in EFU zones, as required by LDO 6.4.1."
LUBA's interpretation certainly address one of the types of "other commercial events"
contemplated by SB 960, but is an interpretation not of the legislature's intent, but of Jackson
County's intent in using a similar phrase in their local zoning ordinance, and was written prior to
the adoption of SB 960, which specifically authorized "commercial events" in the EFU zone .
. Similarly, in Oregon Shores Conservation Coalition v. Coos County, 51 Or LUBA 500
(2006), LUBA interpreted the phrase "incidental and subordinate" as that phrase appears in Goal
17 as follows:
"Goal 17 permits nonwater-dependent uses within water-dependent shorelands that are
"in conjunction with and incidental and subordinate to a water-dependent use." Examples
of incidental use~ include a restaurant on the second floor of an existing seafood
processing plant·or a retail sales room as part of that plant. Incidental "means that the size
of the nonwater-dependent use is small in relation to the water-dependent operation[.]"
LUBA's interpretation is consistent with OAR 660-037-0080, one of the OAR's interpreting Goal
17, which provides, in part:
U(3) To protect a designated water-dependent shoreland site, local land use regulations
may do any of the following:
(a) Allow only water-dependent uses.
(b) Allow nonwater-dependent uses that are in conjunction with and incidental
and subordinate to water-dependent uses on the site.
(A) Such nonwater-dependent uses shall be constructed at the same time
as or after the water-dependent use of the site is established, and must be
carried out together with the water-dependent use.
(B) The ratio of the square footage of ground-level indoor floor space plus
outdoor acreage distributed between the nonwater-dependent uses and the
water-dependent uses at the site shall not exceed one to three (nonwater
dependent to water-dependent).
(C) Such nonwater-dependent uses shall not interfere with the conduct of
the water-dependent use.
Under this interpretation of "incidental and subordinate" a nonwater-dependent use may be
considered "incidental and subordinate" to a water dependent use if the nonwater-dependent use
occupies a relatively minor portion of the property in comparison to the water dependent
use. There is no reliance upon income generated by each type of use, hours of operation of each
type of use, etc. It is simply a comparison ofthe amount of land occupied by each type of
use. Ifthis is the correct interpretation, then the applicants in this case certainly meet the
standard, as evidenced by the record.
In Heilman v. Corvallis, 47 OR LUBA 305 (2004), LUBA was asked to define the phrase
"incidental and subordinate" as it was used in the land use regulations of the City of Corvallis,
and specifically as it related to the amount of sales of non-construction related items at a big box
hardware store like Lowe's or Home Depot. According to LUBA:
"With respect to the sales of materials not related to construction/maintenancelrepair or
remodel--such as house plants, barbeques or comestibles from food or coffee carts--the
city concluded that sale of such items would be incidental and subordinate to the
principal use: retail sale of materials related to construction/maintenance/repair or
remodeling of structures. Petitioners cite to testimony suggesting that sales of non
construction items are a significant portion of the sales at a typical home improvement
stores, and argue that there is no substantial evidence to the contrary. However, the cited
testimony is based on a narrow view of what constitutes construction-related material and
a broad view of what constitutes non-construction related material, views the city council
clearly did not share. In any case, the cited testimony does not establish that sales of non
construction related items at typical home improvement stores are so predominant as to
make such sales the principal use. The city did not err in concluding the contrary."
It isn't clear from this opinion what LUBA would consider to be "incidental and subordinate" but
it appears that the City (and the opponents of the land use approval) were comparing the total
sales of the "construction-related materials" v. the IInon-construction related materials ll to make
the determination of which use was primary and which was accessory (and thus incidental and
subordinate). In any event, LUBA did not appear to reject the City's test based on total sales as
the determining factor. Using this "income" approach in this case, the applicants qualify for the
reasons set forth above.
LUBA has held that a tennis facility with multiple courts, bleachers, lighting, clubhouse,
RV parking etc. is not "incidental and subordinate" to a residence built on the same
property. McCormick v. Baker City, 46 Or LUBA 50 (2003). In that case, LUBA relied in part
on the dictionary definitions of II incidental " and "subordinate" as follows:
"Incidental: subordinate, nonessential, or attendant in .... significance."
"Subordinate: to place in a lower order or class: make or consider as of less value or
importance."
In McCormick, Baker City had relied on the temporary nature of the tennis facility and
the fact that the owners of the residence were not charging people to use the facility, and thus
weren't operating a business. LUBA seemed to acknowledge that these could be proper factors,
but held that the tennis facility was similar, if not identical, to other types of conditional uses
allowed in the zone, and thus couldn't be considered accessory to the primary use. This is an
extreme example.
Applying the dictionary definitions of"incidental" and "subordinate" used by LUBA to
this application, it is clear that the proposed use of the property for commercial events and
activities would be both "incidental" and "subordinate" to the farm use on the property. The
commercial activities are less significant than the farm use of the property in terms of amount of
property used, time devoted to the use during the calendar year, and income generated from the
two uses.
In Durdan v. Deschutes County, 43 Or LUBA 248 (2002), the County Hearings Officer
approved a guest ranch with 10 cabins, 3-4 employees, food service, and recreational activities as
being "incidental and subordinate" to a livestock operation with 42 cattle. The Hearings Officer
focused on the fact that the guest ranch would occupy less than 2% of the ranch and would be
located on the least productive portion of the ranch. The Hearings Officer rejected arguments
that the guest ranch would be operated year round, while the ranch would operate only part of the
year, and that the majority of the income ofthe ranch would come from the guest ranch
activities. LUBA rejected a substantial evidence challenge brought by opponents to the
application, and sustained the Hearings Officer, although LUBA expressly held that they were
not going to interpret the phrase "incidental and subordinate" as that term is used in the guest
ranch statute.
. In Greer v. Josephine County, 37 Or LUBA 261 (1999), LUBA affirmed a Josephine
County approval of a auto repair business in a home garage as a home occupation. Josephine
County code required that a home occupation be "incidental and subordinate" to the primary
use. The County held that the auto repair business met this standard, based on a comparison of
the total square footage devoted to the residential use v. the business use, and the time spent each
week devoted to the residential use v. the business use. The neighbors complained that the
County should have also considered factors such as business activities occurring outside the
garage and hours that the garage is available for business use, whether it is actually being used or
not LUBA ruled for the County, indicating that their interpretation was plausible and entitled to
deference. Applying this interpretation to the application in this case, the applicants proposed
use of the property for commercial activities and events would be incidental and subordinate to
the farm use.
Leonetti Furniture Manufacturing Co. v. City ofBeaverton, 13 OR LUBA 59 (1985) is an
interesting case on the meaning of the phrase "incidental and subordinate." In that case, LUBA
held that Beaverton did not err in defining those terms to mean that the accessory use (the use
that is required to be "incidental and subordinate" to the primary use) must be· "extremely minor"
in comparison to the primary use. LUBA held that that interpretation was a reasonable
interpretation of the phrase "incidental and subordinate," although LUBA also held that the
phrase is so inexact it could also be interpreted to mean that an accessory use that generates 49%
ofthe income attributed to the property could be "incidental and subordinate" to the primary use
generating 51 % of the income attributed to the property. The gist ofLUBA's opinion is that the
phrase "incidental and subordinate" is very imprecise, allowing local governments wide latitude
in definitions.
No matter how the Board chooses to interpret the phrase "incidental and subordinate" in
this statute, the applicants satisfy the test.
RELATED TO AND SUPPORTIVE OF AGRICULTURE
We suspect that another point of contention in regard to the applicant's request will
concern whether the applicant's proposed use ofthe property for commercial events and
activities is "related to and supportive of agriculture" as that term is used in DCC
§18.16.042(C)(2)( d).
As an initial matter, the applicants do not believe that ORS 215.283(4)(c) requires that
the use of property for commercial events or activities requires a demonstration that the
commercial events or activities will be "related to an supportive of agriculture." That phrase is
used in the first sentence ofORS 215.283(4) as follows:
"(4) The following agri-tourism and other commercial events or activities that are related
to and supportive of agriculture may be established in any area zoned for exclusive farm
use:"
This is the only place in ORS 215.283(4) where the term "related to and supportive of
agriculture" appears.
The use of the phrase "related to and supportive of agriculture" in the first sentence of
ORS 215.283(4), before any of the criteria for approving or denying the use are set forth, is an
indication that it is not an approval requirement ofORS 215.283(4) that an applicant demonstrate
that the use ofthe property for commercial events or activities be "related to and supportive of
agriculture." Rather, the placement of the phrase at the beginning ofORS 215.283(4), and not as
a part of the criteria which must be satisfied under ORS 215.283(4)(c), is an indication that any
use which meets the criteria under ORS 215.283(4)(c) is automatically considered a use that is
"related to and supportive of agriculture."
This is significant because, although it is clearly a requirement of DCC
18.16.042(C)(2)(d) that the use of the property must be "related to and supportive of
agriculture," meaning the applicants in this case must demonstrate that they have satisfied that
requirement, that is not a requirement of ORS 215.283(4), and is simply an additional
requirement imposed by Deschutes County. As a result, should the Board choose to clarify the
meaning ofthat requirement in this case, both LUBA and the Oregon appellate courts would be
bound by that definition, .provided the defmition is not inconsistent with the express language of
the DCC. ORS 197.829.
In any event, the applicants concur with the Planning Director's interpretation of the
phrase "related to and supportive of agriculture" in the Findings and Decision, the analysis which
the Planning Director undertook to reach that definition, and the application of the definition to
the facts of this case. As Mr. Downs' affidavit indicates, the use of money generated by the
commercial events and activities proposed will be used to supplement the income generated by
hay sales in order to support the farming operation. Moreover, as Mr. Downs has indicated, and
as his supplemental affidavit and additional evidence provides, past use of the subject property
for weddings and other commercial events has generated hay sales, as Mr. Downs takes
advantage of the opportunity provided by having a large group of people on his property to
market the hay produced on site. Direct marketing of the crops grown by the applicants on the
subject property is certainly "related to" agriculture -in fact, the marketing of crops grown on
the farm is considered a "farm use" under ORS 215.203.
The phrase "related to and supportive of agriculture" does not appear in the Oregon
Revised Statutes in any location other than ORS 215.283 and ORS 215.213. The phrase has
never been defmed by LUBA or the Oregon Appellate Courts. It was not discussed in any of the
legislative hearings leading to the adoption of SB 960. In short, there is nothing beyond what the
Planning Director has identified in the Findings and Decision in this case to guide the Board.
That decision should be affirmed.
MATERIALLY ALTER THE STABILITY OF THE LAND USE PATTERN IN THE
AREA I
tBoth DCC §18.16.042(C)(2)(g) and ORS 215.283(4)(c)(E) require the applicant for a
commercial event and activities facility to demonstrate that the activities will not, in combination
with other commercial events and activities facilities or other agri-tourism facilities in the area,
"alter the stability of the land use pattern in the area."
This phrase, while not defined in either the DCC or ORS 215.283(4), is a phrase that has
long been used in Oregon land use law in conjunction with the siting of non-farm dwellings
under ORS 215.284.
The applicants agree with the Planning Director's analysis of the provision and
application to the facts ofthis application set forth in the Findings and Decision. In addition, to
the extent that the county could extrapolate and apply the criteria found in OAR 660-033
0130(4)(c)(C), the LCDC administrative rule setting forth the test for making the determination
of whether a proposed non-farm dwelling would materially alter the stability of the land use
pattern in the area, the applicant meets that test as well.
As required by OAR 660-033-0130(4)(c)(C), the Planning Director has prepared a table
in the Findings and Decision setting out the size and predominant use of all parcels within a one
mile radius of the border ofthe subject property. The total acreage encompassed greatly exceeds
2,000 acres.
As the table indicates, 9 of the 33 parcels are less than 10 acres in size, and therefore
would not qualify for use as a commercial event or activities facility under the DCC. An
additional 3 parcels are in public ownership, and thus won't be used for commercial events or
activities.
Of the remaining parcels, 17 are" used as pasture or for the production of grass hay. 4
parcels have no farm use at all, and thus would not qualifY for a commercial events or activities
facility.
As Mr. Downs notes in his affidavit, the properties listed in the Planning Director's
Findings and Decision are representative of the properties in the area in terms of parcel size,
predominant use, ownership patterns etc. Mr. Downs is not aware of any pesticide application
on any of the properties in the study area. While there may be some isolated spraying of
herbicides, if this occurs, it is done in the spring, and not during the six Saturday evenings in the
summer when the commercial events which the applicants seek would occur.
Given the nature ofthe farm use in the study area, there is nothing to indicate that the six
events which the applicants would conduct should their application be approved would in any
way interfere with any ofthe farm uses on surrounding properties. Ifthe use would not interfere
with farm uses on the applicants property, it is far-fetched to believe that it would interfere with
uses on surrounding properties.
COMPLIANCE WITH ORS 215.296
Both DCC 18.16.042(C)(2)(h) and ORS 215.283(4)(c)(D) require an applicant for a
commercial events or activities facility to demonstrate compliance with ORS 215.296, which
provides, in material part:
(1) A use allowed under ORS 215.213 (2) or (11) or 215.283 (2) or (4) may be approved
only where the local governing body or its designee finds that the use will not:
(a) Force a significant change in accepted farm or forest practices on surrounding lands
devoted to farm or forest use; or
(b) Significantly increase the cost of accepted farm or forest practices on surrounding
lands devoted to farm or forest use.
The applicants agree with the Planning Director's analysis of this provision and application to
the facts of this application set forth in the Findings and Decision. There is no evidence that the
applicants proposed use oftheir property for six commercial events on Saturday evenings during
the summer will have any effect on farm practices, much less a "significant" effect, as required
by the statute. Therefore, the applicants have met this criteria.
COMPLIANCE WITH THE REMAINING PROVISIONS OF DCC §18.16.042(C)(2)
The applicants concur with the remaining provision of the Planning Director's Findings
and Decision regarding compliance with all remaining requirements of this application.
In conclusion, the applicants have met all of the criteria which the County requires, and
urge the Board to approve their application by adopting the Planning Director's Findings and
Decision as their own, with the supplemental modifications suggested in this letter.
;' \. 534 SW Third Avenue, Suite 300· Portland, OR 97204 • (503) 497-1000· fox (503)223-0073 • wwwJriends.org
1000 I Southern Oregon Office· PO Box 2442 • Grants Pass, OR 97528 • (541) 474-1155 • fax (541) 474-9389friends I Willamette Valley Office· 220 East 1 Jlh Avenue, Suite 5 • Eugene, OR 97401 • (541) 520-3763 • fax (503) 575-2416o{OreaOll I
" I
Central Oregon Office· 115 NW Oregon Ave #21 • Bend, OR 97701 • (541) 719-8221 • fax (866) 394-3089 it at .'
August 27,2012
Deschutes County Board of Commissioners
1300 NW Wall Street
Bend, OR 9770]
VIA EMAIL
Re: LUP 12-2 Downs Application
Weddings on EFU
Dear Board of Commissioners,
I am writing today to provide comments on the Kerry & Deborah Downs application to host
weddings at their 40-acre hay fann in rural Deschutes County. Thank you for holding a public
hearing on this first, significant application under the new code.
The application appears to meet the criteria in all but two significant ways. Under SB 960 and
your code, which quotes SB 960 exactly, the events must be both "related to and supportive of
agriculture" and "incidental and subordinate to the fann use on the property." Neither of these
criteria are met.
The applicant has asserted the events are related to and supportive of agriculture because
couples "WANT to have their wedding on a fann" (emphasis in the original). This does not
meet the criteria. There is nothing about weddings as a category that make them in any way
related to and supportive of agriculture in general or hay fanns in particular. Some objective
nexus with fanning is required.
The applicant also states that these events are related to and supportive of agriculture because
some attendees at the wedding are made aware of the fact that the fann sells hay, and
subsequently purchase hay. This is an argument that, iftaken to its logical end, is untenable. IEssentially it means that any event that would draw people to EFU would be supportive of l
agri culture.
If these interpretations are allowed to stand, the words "related to and supportive of
agriculture" will have been virtually read out of the law. Any event including a concert,
antique show, soccer match or motorcycle rally could potentially qualify if the event were
going to bring people to the property, and the proponent asserted that the attendees wanted to
be in a rural setting. In short this reading would essentially conclude that virtually any six
events per year are allowed. The courts must assume that the legislature put those words there
for some substantive reason. There must be some objective nexus between the nature of the
event and agriculture taking place on the property.
The application also fails to show that the proposed weddings will be "incidental and
subordinate to" the farm use on the property. This measure should be made in fenns of total
income to the fann, yet, no financial information has been submitted comparing hay sales to
the wedding business.
Further, even if time is an appropriate measure of "incidental and subordinate to" it is
inappropriate to measure only the amount oftime the actual wedding takes. Marketing,
booking, facilities maintenance, arranging catering, sanitation, traffic, music etc. are all
significant parts of a wedding business that need to be taken into account. Without this
infonnation in the record the applicant has not shown that the proposed wedding business is
truly incidental or subordinate to the fanning business on the property.
For these reasons this application should be denied .
' Thank you for the opportunity to comment. Please place these comments in the record for this
i
.I matter, and place me on any related notice list.
Best Regards
17.:;:U
----,.~~-.Staff Attorney Central Oregon Advocate
1000 Friends a/Oregon
I
I
I
1
I
Central Oregon Office' 115 NW Oregon Ave #21 • Bend, OR 97701 • 1000
(541) 719-8221 • fax (866) 394·3089friends
nlOreg-(m
,*, .....! Page 2
Harry and Leslie Ketrenos
62237 Powell Butte Hwy.
Bend, Or. 97701
To: Deschutes County Commissioners
Subject: Public hearing LUP 12-2
Aug. 28, 2012
We don't believe the application has met the criteria set forth in Deschutes County Codes
or that it was properly evaluated by the planning department.
Mr. Downs application to hold events stated that holding events was supportive of
agriculture due to exposing more people to his haying operating allowing possible sales.
Forty acres of hay has only so much value. If the crop is sold and there is nothing left to
sell to event attendees then where is the event support?
Neighbors to his farm have said he usually only makes one hay cutting a year when there
are typically a minimum of 2 and usually 3 cuttings per year. Neighbors have also said
that the person that cuts his hay normally takes the hay. I feel it is up to the county
planning department to determine if Mr. Downs is in fact actually trying to farm and
make a profit from his land before issuing a permit. His farm never has a sign saying hay
for sale and hay is normally not stored in his hay shed which he has used in prior years to
hold events. I see no tie between his events and his agriculture activities when there is
no hay to sell or even a place to store that crop when the hay barn where the crop would
be stored is in use by his events. It would seem to me that if he were using events to sell
his hay crop he would have an ample amount of hay for a prospective buyer to buy or at
least allow a prospective buyer to look at the quality of the item he is trying to sell.
Katherine Daniels from DLCD provided testimony at a county meeting that financial gain
from events should not exceed 25% of the agriculture income. Winery legislation and the
county ruling with regard to Faith Hope and Charity incorporated this figure. In a letter
by Michael Morrissey (page 10) of the fmdings it is stated that wedding activities must
provide supplementary income to a farm operation that earns a larger income. There is
no mention of financial limitations in the permit the county is issuing to Mr. Downs. It is
difficult to believe that holding 6 events would generate less income than 40 acres of hay.
We would like to see the county evaluate financial statements that uphold that events are
subordinate to farming activities on the land.
It was our understanding that there must be direct access to the event and if not then land
owners must provide consent. It appears Mr. Down 's driveway crosses a strip of land
owned by Central Or. Irrigation district or BLM.
Thank you,
HZ21i '!Ke;r:,.,~7~
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, AUGUST 29,2012
Commissioners' Hearing Room -Administration Building -1300 NW Wall St., Bend
1. PLEDGE OF ALLEGIANCE
2. CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's
discretion, regarding issues that are not already on the agenda. Please complete a sign-up
card (provided), and give the card to the Recording Secretary. Use the microphone and
clearly state your name when the Board calls on you to speak
PLEASE NOTE: Citizen input regarding matters that are or have been the subject ofa public
hearing will NOT be included in the official record ofthat hearing.
3. A PUBLIC HEARING on a Type 2 Limited Use Permit for Six Commercial
Events and Activities (Weddings) in an Exclusive Farm Use Zone (Downs; File
#LUP-12-2) -Paul Blikstad, Community Development
Suggested Action: Open public hearing and take testimony.
CONSENT AGENDA
4. Signature of Document No. 2012-430, a Contract for Subgrant between the
Children & Families Commission and MountainStar Family Relief Nursery
5. Signature of a Letter Appointing Phyllis Lewis to the Bicycle and Pedestrian
Advisory Committee, through June 30, 2014
6. Signature of a Letter Accepting the Resignation of Mike Bonetto from the
Public Health Advisory Board, and Thanking him for his Service
Board of Commissioners' Business Meeting Agenda Wednesday, August 29, 2012
Page 1 of7
7. Signature of Letters Reappointing Jack Pribnow, Anthony Rosenthal and Keith
Winsor to the Public Health Advisory Board, through August 31, 2015
8. Approval of Minutes:
• Board Meetings of August 20 and 22, 2012
• Work Sessions of August 20 and 22, 2012
CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE
DISTRICT
9. CONSIDERATION of Signature of a Letter Appointing Bob Nelson to the
Sunriver Service District Managing Board, through August 31, 2015
Suggested Action: Move Board signature ofletter ofappointment.
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
10. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the 9-1-1 County Service District
CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H
COUNTY SERVICE DISTRICT
11. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the Extensionl4-H County Service District
RECONVENE AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
12. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
Deschutes County
13. ADDITIONS TO THE AGENDA
Board of Commissioners' Business Meeting Agenda Wednesday, August 29, 2012
Page 2 of7
PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues
relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS
192.660(2)( d), labor negotiations; ORS 192.660(2) (b), personnel issues; or other executive session items.
FUTURE MEETINGS:
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. Jfyou have questions
regarding a meeting, please call 388-6572.)
Monday, August 27
1:00 p.m. Administrative Work Session, and executive session under ORS 192.660(2) (a),
employment of a public officer or employee -NOTE EARLIER TIME
Wednesday, August 29
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Thursday, August 30
10:00 a.m. Joint Meeting with City of Bend Council, at the County
Monday, September 3
Most County offices will be closed to observe Labor Day
Wednesday, September 5
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Thursday, September 6
8:00 a.m. Regular Meeting with the Sisters City Council, Sisters City Hall
Wednesday, September 12
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session could include executive session(s)
Board of Commissioners' Business Meeting Agenda Wednesday, August 29, 2012
Page 3 of7
Thursday, September 13
7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers
Monday, September 17
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session could include executive session(s)
Thursday, September 20
8:30 a.m. (Tentative) Tobacco Survey Results Discussion
Friday, September 21
All Day Association of Oregon Counties' District Meeting Harney County
Monday, September 24
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session -could include executive session(s)
Wednesday, September 26
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session -could include executive session(s)
Monday, October 1
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
3:30 p.m. Public Safety Coordinating Council Meeting
Wednesday, October 3
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session -could include executive session(s)
Board of Commissioners' Business Meeting Agenda Wednesday, August 29,2012
Page 4 of7
Thursday, October 4
8:00 a.m. Regular Meeting with the Sisters City Council, Sisters City Hall
Wednesday, October 10
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session could include executive session(s)
Monday, October 15
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session could include executive session(s)
Monday, October 22
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session could include executive session(s)
Wednesday, October 24
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session -could include executive session(s)
Monday, October 29
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Wednesday, October 31
10:00 a.m. Board of Commissioners' Meeting
1:30p.m. Administrative Work Session -could include executive session(s)
Monday, November 5
10:00 a.m. Board of Commissioners' Meeting
1 :30 p.m. Administrative Work Session -could include executive session(s)
3:30 p.m. Public Safety Coordinating Council Meeting
Board of Commissioners' Business Meeting Agenda Wednesday, August 29, 2012
Page 5 of7
Wednesday, November 7
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Monday, November 12
Most County Offices Closed to Observe Veterans' Day Holiday
November 13 through 16
Association of Oregon Counties Conference
Monday, November 19
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
November 22 & 23
Most County Offices Closed to Observe Thanksgiving (November 23 Unpaid Furlough)
Monday, November 26
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Wednesday, November 228
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Monday, December 5
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
3:30 p.m. Public Safety Coordinating Council Meeting
Board of Commissioners' Business Meeting Agenda Wednesday, August 29,2012
Page 60f7
Wednesday, December 7
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Wednesday, December 12
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session -could include executive session(s)
Monday, December 17
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session could include executive session(s)
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY.
Please call (541) 388-6571 regarding alternative formats or for further information.
Board of Commissioners' Business Meeting Agenda Wednesday, August 29, 2012
Page 70f7