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HomeMy WebLinkAboutReview Admin Decision - DownsCommunity 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/ MEMORANDUM DATE: June 15, 2012 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Board initiation of review of the Limited Use Permit for Kerry and Deborah Downs (File No. lUP-12-2) Kerry and Deborah Downs have applied for a Limited Use Permit for a commercial events or activities facility (weddings) for their 39.S-acre property within the Exclusive Farm Use zone on Dodds Road southeast of Bend. The applicants are requesting approval for up to 6 weddings on their property, within the months of June through September. They have applied for the proposed use based on the County's adoption of Ordinance No. 2012-004, which was adopted after the provision for these types of events was established in State law under Senate Bill 960. Staff has issued an Administrative Decision approving the Limited Use Permit. The Board has previously discussed the possibility of initiating review of the Planning Division's decision on lUP-12-2. Staff has drafted Order No. 2012-031, which will require that the Board hold a public hearing on the application. Attached for your review is a copy of the decision on lUP-12-2. If you should have any questions, feel free to contact either Nick lelack or me. Quality Services Performed with Pride ORDER NO. 2012-031, JUNE 18, 2012 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Initiating Review of Administrative Decision in File No. LUP-12-2. * * ORDER NO. 2012-031 WHEREAS, staff issued an Administrative Decision on Application No. LUP-12-2; and WHEREAS, Section 22.28.050 of the Deschutes County Code allows the Board of County Commissioners (“Board”) to initiate review of any administrative action within 12 days of the date of mailing of the final written decision of the Planning Director; and WHEREAS, the Board has given due consideration as to whether to initiate review of this application; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board hereby initiates review of application LUP-12-2 pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. The review shall be heard de novo. Section 3. Staff shall set a hearing date and cause notice to be given to all persons or parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030. Dated this _______ of ___________, 2012 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ______________________________________ ANTHONY DEBONE, Chair ______________________________________ ALAN UNGER, Vice Chair ATTEST: ______________________________________ Recording Secretary ______________________________________ TAMMY BANEY, Commissioner REVIEWED ______________ LEGAL COUNSEL FINDINGS AND DECISION FILE NUMBER: LUP-12-2 APPLICANT/OWNER: Kerry and Deborah Downs 24885 Dodds Road Bend, OR 97701 REQUEST: The applicant is requesting a Type 2 Limited Use Permit for a commercial events or activities facility on a 39.83-acre parcel in the Exclusive Farm Use zone. STAFF CONTACT: Paul Blikstad, Senior Planner I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Title 22, Deschutes County Development Procedures Ordinance Oregon Revised Statutes 215.296 II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 24885 Dodds Road, Bend, and is identified on Deschutes County Assessor's Map 18-14 as Tax Lot 903. B. LOT OF RECORD: The subject property is a legal lot of record pursuant to being parcel 1 of Partition Plat No. 1992-06. C. ZONING: The subject property is zoned Exclusive Farm Use – Alfalfa subzone (EFU- AL). This property is designated Agriculture on the Deschutes County Comprehensive Plan. D. SITE DESCRIPTION: The subject property is 39.83 acres and has an existing dwelling and barn, as well as an open air structure with enclosed restrooms, which are accessed from an existing driveway off Dodds Road. The topography of the site is level to rolling, and the site includes a hay field and irrigated pasture surrounded by fences. There is a lawn area adjacent to the dwelling, as well as a graveled area adjacent to the dwelling LUP-12-2, Downs Page 2 and barn. The property is served by an existing domestic well, and an on-site septic system. E. SURROUNDING LAND USES: The properties to the west, northwest, south and east consist of residences with some farming occurring, which are also zoned EFU-AL. To the north across Dodds Road is land under the administration of the Bureau of Land Management (BLM – 18-14, 100). F. PROPOSAL: The applicant proposes to establish a commercial events or activities facility on the subject property. The applicant is proposing to utilize the existing site as a wedding facility, with up to six commercial events/weddings each year from June 1 through September 30. The applicant’s burden of proof states the following: “These weddings tend to be very similar with respect to many characteristics. With one exception, we have never had a request for a wedding on any day other than a Saturday. Therefore, that is the day that most if not all of these events will take place. The day before (Friday) will consist of some minimal preparation such as setting up chairs and tables. This activity usually occurs in the late afternoon and lasts no more than 2-3 hours. Typically, there will be 125-150 people in attendance on the day of the wedding (Saturday). The typical Saturday wedding day consists of the following: The wedding participants (12-20 people) will arrive around 1 p.m. to allow time for pictures and final preparation. Around 3:30 p.m., the guests will start arriving and the wedding ceremony will usually commence around 4:00 p.m. The typical wedding ceremony lasts 30-45 minutes and a reception with all of the guests and participants follows. By 8:00 p.m., the majority of people in attendance will have left. By 9:00 p.m. over 80% of the people in attendance will have left. By 10:00 p.m., everyone will have left and vacated the property. The following day (Sunday) consists of final clean-up and involves no more than 2-3 people with everything picked up and done by 11:00 a.m.” G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Deschutes County Environmental Soils Division: The proposed change in use for the Accessory structure served by an onsite wastewater treatment system will require an Authorization Notice to determine that the existing onsite system is sufficient to serve the proposed use. 2. Deschutes County Transportation Planner: I have reviewed the submittal materials to hold up to six weddings in June-Sept. on a 40-acre parcel at 24885 Dodds Road, Bend, aka 18-14-00, TL 903. The applicant’s materials state the peak day will be Saturday with attendees ranging from 125-150 people. Assuming two people per vehicle, that would result in 63-75 additional vehicles on Dodds Road. The most recent count (2010) on Dodds indicates 680 average daily traffic (ADT) 0.07 miles north of US 20 and 176 ADT 0.10 miles south of Alfalfa Market Road. There is adequate capacity on Dodds Road to handle these events as the County allows 9,600 ADT on existing County roads as an acceptable level of service (LOS). 3. Deschutes County Road Department: The Road Department received a copy of this letter from Edna McBride concerning the land use application LUP-12-2. She referenced the driveway and the danger with animals crossing so I looked LUP-12-2, Downs Page 3 up the driveway permit and this access was approved through MP-91-35. It required an easement from the BLM at this location as the property did not front Dodds Road and they had to cross BLM property to get to Dodds. It does not appear there were any issues with sight distance so I really do not know what can be addressed concerning her issue with crossing wildlife. 4. County Building Safety Division: I met briefly with Downs and Nick Lelack. Based on their description of the proposed use and the permit history, the Building Division has no further requirements. 5. The following agencies did not respond to the notice: Central Oregon Irrigation District, Central Electric Cooperative, Pacific Power and Light, Bend Fire Department, County Assessor, Bureau of Land Management. H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 750 feet of the subject property. The following written comments were received: Edna Joanne McBride: “I share the East boundary of said property. My front door is in direct line with said ‘barn.’ I am 147 feet from the property line, making it 404 feet from this structure, with roadway making it even closer. I believe this is a little close. “I can not object [to] this application for fear of reprisal. You see, I am the one who turned him in for not having permits on this barn. He has threatened me if I take any more pictures of his weddings I will be sorry. In addition, the other neighbors west of Downs share the same well, which happens to be on Downs property. So you can see, you are not going to get any objection from any of them. The Denhams across the road have moved away. I would however like you to look into the application for said barn. I do not believe the bathrooms were set up for 150 to 200 people in a single day. Also, how can having weddings generate any sales of hay crops. My daughter and I had a meeting with Mrs. Downs last fall, and she informed us that they do not charge for the weddings. These are all friends of there (sic) children from collage (s ic), and they will continue to have them if we like it or not. “There is however, some confusion on the entrance to Downs' driveway onto Dodds Road. There is a small hill that blocks the vision both directions when pulling out onto Dodds Road. This is where the Deer and Elk cross from the BLM into our property. Our neighbors totaled their car hitting a deer on this hill. It is not if, but when someone tears out the drive at 10:00 at night in the dark and hits an animal or vehicle. You as decision makers, upon your approval, will be responsible for said accident. I know the county decision will not affect your life, but it will certainly affect my quality of living.” Gary Dodds: “I have reviewed the notice of application letter regarding Kerry and Deborah Downs limited use permit for a type 2 commercial events or activities facility on EFU land. The file number is LIP-12-2 @ 24885 Dodds Road, Bend, OR. I have reviewed the Down’s application and request the permit be denied for the following reasons: 1. No sign posted as required. 2. Permits are being appealed by Central Oregon Landwatch. LUP-12-2, Downs Page 4 3. No demand. Only two permits applied for county wide. 4. Events held in hay barn building has agricultural or commercial permit? 5. Permit states wedding held on non-productive land. But in fact, land is irrigated by Central Oregon Irrigation water rights. Land may be non-productive to hay but still producing non-native vegetation (farm use). 6. Downs and Dodds share a well. No compensation plan in place to amend for excessive water use. 7. Permit specifies generation of hay sales at weddings. One Craig’s list add would sell more hay than 6 weddings. Very ineffective sales method. 8. Farm tax deductions or commercial events. Weddings do not qualify for farm use tax assessments. (Please reference the attached Information Circular) 9. According to profit or loss from farming tax forms accompanying the permit application, the tax loss is less without weddings.” I. NOTICE REQUIREMENTS: The applicant complied with the posted notice requirements of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated May 16, 2012, indicating the applicant posted notice of the land use action on that same date. J. REVIEW PERIOD: This application was submitted on May 11, 2012. The Planning Division sent an incomplete letter dated May 24, 2012. The applicant submitted an addendum to the application, which was received on May 29, 2012. This application was thus deemed complete and accepted it for review on May 29, 2012. K. ADJACENT PARCELS: The properties in the area that are within one mile of the boundaries of the subject property are as follows: Tax lot no. Owner Size (acres) Dwelling Farm use Tax deferred 18-14, 904 Dodds 39.82 1993 Grass hay Yes 18-14, 1001 McBride 39.39 1930/1998 Pasture, horses Yes 18-14, 1000 Bussard 37.94 1989 Pasture Yes 18-14, 1101 Penland 20 1980 Grass hay Yes 18-14, 1105 Duren 30 1927 Pasture Yes 18-14, 1103 Fortin 5 1997 Pasture No 18-14, 1102 Cook/Ross 22.61 2006 Grass hay No 18-14, 1104 Phillips 11 1977 Pasture, cattle Yes 18-14, 1100 Floyd 71.59 1972 Grass hay Yes 18-14, 301 Roberts 89.94 1993 Grass hay, pasture Yes 18-14, 302 Thompson 2.68 2004 None No 18-14, 303 Rubaloff 3.93 2005 None No 18-14, 1203 Clarno Cattle 42.88 2000 Pasture Yes 18-14, 1200 Clarno 122.90 1971 Grass hay Yes 18-14, 100 USA/BLM 19,377 No None No 18-14, 300 COID 480.53 No None No 18-14, 700 COID 211.28 No None No LUP-12-2, Downs Page 5 18-14-7, 100 Deschutes County 9.93 No None No 18-14-7, 402 Denham 42.15 1988 Pasture Yes 18-14-7, 401 O & M Inc. 4.38 2002 None No 18-14-7, 400 O & M Inc. 71.90 No Pasture, Grass hay Yes 18-14-7, 405 Winger 26.26 No None No 18-14-7, 404 Olsen 25 2007 None No 18-14-7, 200 Swan 25 No None No 18-14-7, 300 Gerhardt 34.84 1997 None No 18-14-7, 600 Bradetich 5.22 1984 Grass hay Yes 18-14-7, 700 Williamsen 5.41 2000 None No 18-14-7, 800 Moriarty 59.53 1996 Grass hay, pasture Yes 18-14-7, 900 Conners 36.16 2001 Grass hay Yes 18-14-7, 901 Pensco 38.09 No Grass hay Yes 18-14-7, 902 Pensco 2 No None No 18-14-7, 500 Robinson 21.70 1994 Grass hay, pasture Yes 18-14-7, 100 Deschutes County 9.93 No None No III. CONCLUSIONARY FINDINGS: Title 18, Deschutes County Zoning Ordinance. A. CHAPTER 18.16. EXCLUSIVE FARM ZONE 1. Section 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. K. Agri-tourism and other commercial events and activities subject to DCC 18.16.042. FINDING: The applicant is proposing a commercial events and activities facility, consisting of a wedding venue. The criteria under DCC 18.16.042 are addressed in this decision. There are no criteria under DCC 18.16.038 for the proposed use, and it is not subject to site plan review under DCC Chapter 18.124. LUP-12-2, Downs Page 6 2. Section 18.16.042 Agri-Tourism and other Commercial Events or Activities Limited Use Permit A. Agri-tourism and other commercial events or activities related to and supportive of agriculture may be approved in an area zoned for exclusive farm use only if the standards and criteria in this section are met. FINDING: The applicant is proposing a commercial events or activities facility, which will consist of conducting weddings at the site. The standards under DCC 18.16.042(C) are addressed below. B. Application. The application shall include the following. 1. The General Provisions information required in DCC 22.08.010. FINDING: The applicant has submitted a copy of a warranty deed (Vol 410 Page 2847) demonstrating that the applicants are the owners of the subject property. The applicant has submitted the Limited Use Permit application form, a burden of proof statement addressing the criteria in DCC 18.16.042, the filing fee of $785.00, and has submitted the affidavit attesting to the fact that the land use action sign was posted on the property on May 16, 2012. 2. A written description of: a. The proposal. FINDING: The applicant has addressed the above standards on pages 1-3 of the burden of proof statement. The applicant states that up to six commercial events/weddings will be held on the property each year from June 1 through September 30. The applicant has also stated that, based on past experiences, weddings are generally on a Saturday. The applicant’s burden of proof states that the day before the wedding (Friday) includes preparation of the site, including setting up chairs and tables. The weddings generally have 125-150 people in attendance. The applicant provides a description of the Saturday activities, including the wedding and reception and the times that they occur. The time frame for activities on Saturdays is from approximately 1:00 p.m. to 10:00 p.m., when, according to the applicant, everyone will have left and vacated the property. The following day (Sunday) consists of final clean-up that involves 2-3 people, with everything picked up and done by 11:00 a.m. Access and egress, parking facilities, and sanitation and solid waste operational characteristics are addressed below. b. The types of agri-tourism and other commercial events or activities that are proposed to be conducted, including the number and duration of the agri-tourism and other commercial events and activities, the anticipated maximum daily attendance and the hours of operation, and how the agri-tourism and other commercial events or activities will be related to and supportive of agriculture and incidental and subordinate to the existing farm use on the tract. FINDING: The applicant addressed 2(b) above with the following statements in the burden of proof: “There exists an undeniable connection to these activities and the agricultural practices that I conduct on my property. The couples that wish to have their wedding ceremony on our farm have a multitude of other options to choose from LUP-12-2, Downs Page 7 for their wedding site (hotels, resorts, golf courses, churches, parks, forests, etc.) but are interested in my location because they WANT to have their wedding on a farm. Specifically they want to be in an open air rural environment surrounded by lush green fields. They choose and want to have their wedding in an environment that includes the sounds and sights of irrigation sprinklers, tractors, hay balers, etc. These attributes and connections do not exist anywhere else other than a farm setting. Further, I have 90-100 tons of Orchard Grass Hay that needs to be sold annually. By exposing 125-150 people to my farm (per event), I will routinely and invariably generate some hay sales from hosting a wedding on our farm. These sales become an important part of my operation because the volume of Hay that I produce dictates that my sales are spread over several small transactions vs. one or two large transactions. “Not counting maintenance activities during the winter months my farm operation encompasses approximately 183 days of actual production with the onset of the irrigation season to the end of the irrigation season. The proposed events with this limited use permit will encompass at most 6 days during the time frame of June-September with those 6 days only utilizing 8-10 hours of time farm per event. The total amount of land usage for these events is approximately 2 acres (non productive land). Therefore, these proposed events utilize the following: Time as a percentage of farm production year – 3.2% Time as a percentage of total year – 1.6% Land usage as a percentage of total parcel – 5.02% “In summary, the appeal and indication of interest I receive from future grooms/brides for the purpose of having their wedding on my farm is because of my farm operation rather than in spite of it being a farm.” Senate Bill (SB) 960, approved by the State Legislature in 2011, is the legal basis for DCC 18.16.042. SB 960 establishes the “related to and supportive of agriculture” standard, as well as the “incidental and subordinate to a farm use” standard. The law, however, does not define these terms or phrases. Staff has not found the “related to and supportive of agriculture” standard defined elsewhere in state law or Land Use Board of Appeals (LUBA) decisions. Several LUBA decisions address the “incidental and subordinate to a farm use” standard, but each case appears to be applicable to the particular circumstances of the subject application, property, and local regulations. Therefore, to better understand and apply the meaning and intent of these terms and phrases, staff looks to the following sources: 1. The Oregon Department of Land Conservation and Development’s “Guide to Wineries and Events in EFU Zones” dated, March 1, 2012; 2. The Webster’s New World Dictionary; and 3. The Association of Oregon Counties (AOC) Farmland Activities Task Force Final Report and Recommendations, dated December 13, 2010. This report was the basis for SB 960 and is included in the State Legislative record for SB 960 and Deschutes County’s record for the ordinance adopting DCC 18.16.042. LUP-12-2, Downs Page 8 Staff summarizes each of these sources in order. 1. DLCD’s “Guide to Wineries and Events in EFU Zones” states: “Q: What does ‘related to’ and ‘supportive of’ agriculture mean in SB 960? What about ‘incidental and subordinate?’ A: We interpret ‘related to’ and ‘supportive of’ to mean that the proposed agri- tourism or other commercial event or activity is physically and/or economically logically connected to, and supports, an existing on-site farm operation. For example, ‘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 a farm. ‘Incidental and subordinate’ means that the event or activity is strictly secondary and ancillary to on-site farming in terms of income generated, area occupied, and off-site impacts.” 2. Webster’s New World Dictionary defines: 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 important; secondary or minor” Subordinate: “inferior to or placed below another in rank, power, importance, etc.; secondary” 3. AOC Farmland Activities Task Force Final Report and Recommendations Page 4. “The Task Force realizes these recommendations may not provide an opportunity to conduct activities and events on farmland which do not promote farm use. However, we believe it is a good basis for providing balance between the conservation of farmland and the need of farmers to use their land in beneficial yet non-traditional ways.” Page 6. “The Farmland Activities Task Force developed a set of principles with the assistance of state agencies and other interested parties to guide its work. A list of issues was also compiled based upon the responses to the statewide survey referenced above and the comments and discussion of the Task Force. “Principles The FATF developed and approved the following principles: 1. Give preference to ‘farm use’ as defined in ORS 215.203(2) (a) on farmland. 2. Support economic activities that compliment farm use. 3. Seek opportunities for better communication between those wishing to establish nontraditional farm uses and those who may be impacted by such activities. LUP-12-2, Downs Page 9 4. Ensure compliance with public health, environmental health and safety requirement when establishing other uses on farm land. 5. Ensure activities associated with ‘farm use’ (i.e. efficient operation of equipment and transport of products to market in a timely manner) are not impaired. 6. Assist counties with establishment of clear, transparent, and to the extent possible, consistent processes for consideration of traditional and nontraditional farm activities. 7. Identify ‘best practices’ in the public process for consideration of nonfarm issues on farm land.” Staff believes the key components of this criterion for which findings must be made are: 1. Is there a farm use, as defined in ORS 215.203(2), on the property? 2. How is the commercial event related to and supportive of agriculture? 3. How is the commercial event incidental and subordinate to the farm use? Staff addresses each component of this criterion in order. 1. Is there a farm use, as defined in ORS 215.203(2), on the property? Oregon Revised Statute (ORS) defines a farm use under ORS 215.203(2) as: “(2)(a) As used in this section, “farm use” means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof…” Staff finds this element of the criterion is met because the primary use of the property is to seek a profit in money by the sale of Orchard Grass Hay. 2. How is the commercial event related to and supportive of agriculture? DLCD’s interpretation of “related to”’ and “supportive of” mean that the commercial event or activity is “physically and/or economically logically connected to, and supports, an existing on- site farm operation.” The agency’s Guide states, “‘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 a farm.” Staff poses a series of questions and answers/findings to address this issue. Do commercial events include commercial weddings? Staff finds the answer to this question is “yes,” commercial events include commercial weddings. The text amendment to adopt SB 960 into Deschutes County Code (DCC) also included a new definition of “commercial event or activity.” As defined in DCC: “Commercial event or activity” means any meeting, celebratory gathering, wedding, party, or similar uses consisting of any assembly of persons and the LUP-12-2, Downs Page 10 sale of goods or services. It does not include agri-tourism. In DCC 18.16.042, a commercial event or activity shall be related to and supportive of agriculture. In addition, while weddings have historically occurred on farms throughout Central Oregon and across the state and nation they are not considered a traditional farm activity. In public testimony on Deschutes County Ordinance 2012-004 adopting SB 960 and new definitions into Deschutes County Code from several sources, including AOC, Oregonians In Action, the Oregon Farm Bureau, and others, weddings were clearly contemplated as an allowed use as a commercial event or activity under SB 960 for properties with an existing farm use. The AOC Task Force Final Report and Recommendations supports this testimony in its principles (listed above), which call for “economic activities that support farm use,” “activities associated with ‘farm use;’” and “consideration of traditional and nontraditional farm activities.” Weddings are an economic activity that support a farm use, a nontraditional farm activity, and an activity associated with a farm use. In comments to Deschutes County during consideration of Ordinance 2012-004, DLCD Policy Analyst Michael Morrissey and Farm/Forest Specialist Katherine Daniels, wrote: “We aren’t sure a wedding meets a definition of agri-tourism, but it isn’t hard to see it as an ‘other commercial event.’ The department believes that ‘related to and supportive of agriculture’ (together with ‘incidental and subordinate’) is specific to the site. That means there needs to be on-site farming taking place, and that any wedding activities must either provide supplementary income to a farm operation that earns a larger income, so that they financially ’support’ the onsite farming. It could also mean that wedding activities must use products grown on the farm as part of the wedding activities (e.g., flowers from a flower farm, etc.). However, as an example, a free standing 15 -acre ‘wedding mill,’ on an EFU zoned site, with a dwelling and a personal backyard vegetable garden would not meet the standards, in our opinion.” Are weddings physically and/or economically logically connected to a farm use, and specifically to a hay operation? The applicant’s burden of proof statement explains that weddings are physically and economically connected to the existing 39.83-acre farm and helpful to the farm use on the property. Commercial weddings are physically connected to this specific farm by people choosing to have their wedding in a pastoral setting with its green fields, irrigation sprinklers, tractors, hay balers, and associated sounds. In addition, weddings are economically connected to this farm by the importance of hay sales at such events in the overall farm operation, according to the applicant. The burden of proof states, “These sales become an important part of my operation because the volume of Hay that I produce dictates that my sales are spread over several small transactions vs. one or two large transactions.” In addition, the applicant states in the burden of proof, “I will routinely and invariably generate some hay sales from hosting a wedding on our farm.” Weddings also are supportive of this farm by providing supplemental income. How are commercial weddings economically connected to this farm use? Deschutes County Planning Director Nick Lelack called and asked the applicant, Mr. Downs, on June 11, 2012 how the commercial weddings facilitate sales of hay at these events. Mr. Downs explained that his direct involvement in and attendance throughout all commercial events on his property provide him with opportunities to integrate hay sales with weddings by: LUP-12-2, Downs Page 11 (1) Bringing people to his farm who otherwise would not or do not know about it; and (2) Providing him opportunities to “network” in person with the wedding party, attendees, and associated service providers about his agricultural practices, the types of grasses growing on the farm, and the potential uses for the hay. Mr. Downs explained that these “networking” opportunities have directly lead to hay sales in the past, and he has customers today who continue to purchase hay that he previously met while conducting weddings on his farm. The sales of Orchard Grass Hay to event attendees, and the supplemental income generated by events to support the agricultural operations, creates a direct economic connection between the commercial events and the applicant’s agricultural operations. Staff finds the proposed commercial weddings are related to and supportive of agriculture for this application. 3. How is the commercial event incidental and subordinate to the farm use? Staff identifies two components to this question: 1. There must be farm use, as defined in DCC 18.04.030, occurring on the property. 2. The commercial event must be lower in rank or importance, or secondary and ancillary, to the farm use. It also means that the intensity, scope, duration, etc. of the commercial event must be judged proportionate to the scale of the farm use. The first component is addressed above. A farm use exists on the property. Therefore, the second and primary question is whether the commercial weddings are incidental and subordinate to the farm use. The applicant’s burden of proof statement demonstrates compliance with this standard based on the amount of time and land used for the weddings compared to that of the farm use. Specifically, the applicant is applying for six (6) days each year to conduct weddings. A few hours the day before and a few hours the day after the six (6) wedding days would be used for set-up and take down. This total amount of time is less than 5% of the overall total amount of time for farm production each year (183 days) according to the application. The area occupied by the wedding events is less than 3 acres, including the parking area. The County Assessor’s records indicate the property has 34 irrigated acres. Therefore, the area used for weddings is less than 10% of that used for farming. Staff finds that the wedding event time period and land area is incidental and subordinate to the farm use on the property. In sum, staff finds a qualifying farm use on the subject property, and that the commercial weddings are related to and supportive of agriculture and incidental and subordinate to the existing farm use. LUP-12-2, Downs Page 12 Staff finds this criterion is met. c. The types and locations of all permanent and temporary structures, access and egress, parking facilities, and sanitation and solid waste to be used in connection with the agri-tourism or other commercial events or activities. FINDING: The applicant addressed c above on page 3 of the burden of proof as follows: “All activities related to these events will take place exclusively on non-productive farm ground (approximately 2 acres) within my 40 acre property. Traffic to these events comes via Hwy 20 to Dodds Road (traveling east) with a direct access right hand turn onto our driveway. The first 660 feet of our driveway is a pave d surface with the final 250 feet via a rocked portion of the driveway into a 2 acre grass horse pasture used for parking event vehicles (this pasture is not part of my hay production ground). Traffic into, on, and from our property is solely on either a paved surface, rock surface, or grass surface and produces absolutely zero dust. All of the wedding event activities (ceremony/reception) occur within the landscaped portion of our residence. We utilize an accessory structure to our residence (an open air structure) for a portion of the event activities. Sanitation and solid waste for people attending these events is handled by two (2) county permitted restrooms in the accessory structure. These restrooms are serviced via a county dedicated/permitted septic system exclusively for these two (2) restrooms.” Staff finds that the applicant has adequately described the structures on the property, as well as access and egress, parking and sanitation. Any solid waste would be disposed of at the County landfill. Staff has imposed conditions of approval to address this standard. Staff finds this criterion is met with the conditions of approval. 3. A traffic management plan that: a. Identifies the projected number of vehicles and any anticipated use of public roads; b. Provides an assurance that one traffic control person shall be provided for each 250 persons expected or reasonably expected to be in attendance at any time during the agri-tourism and other commercial event or activity. The traffic control personnel shall be certified by the State of Oregon and shall comply with the current edition of the Manual of Uniform Traffic Control Devices. FINDING: The applicant addressed these criteria on page 3 of the burden of proof as follows: “The proposed events under this limited use permit will generate 30-50 vehicles usage for all participants/guests of the event. Virtually all of the vehicles travel from Bend east on Highway 20 to Dodds Road. They then travel east on Dodds Road to a direct right hand turn onto our property. Access to our property is a direct turn with no crossing of the opposing lane of traffic. When existing our property the vehicles turn left onto Dodds Road with excellent visibility in both directions for traffic entering Dodds Road. For all events, I will place temporary signage on Dodds road alerting motorists to an “event in LUP-12-2, Downs Page 13 progress” both east and west of our driveway on Dodds Road. As unlikely as it may seem, if we ever host an event that exceeds the 250 participants threshold we will also provide a licensed traffic control person (certified by the State of Oregon) stationed at the entrance of our driveway to Dodds road. Staff finds that the applicant has adequately described the number of any anticipated number of vehicles for the event site. The anticipated number of guests (125-150) will require that at least one traffic control person must be on-site during the wedding event. Any attendance over 250 will require a second traffic control person. Staff finds this criterion is met with the requirement under “b” above as a condition of approval. c. Demonstrates that the parcel, lot or tract has direct access such that the lot, parcel or tract on which commercial events will occur: i. Fronts on a public road; or ii. Is accessed by an access easement or private road, and all underlying property owners and property owners taking access between the subject property and the public road consent in writing to the use of the road for agri-tourism and other commercial events or activities at the time of initial application. FINDING: Approximately one-half of the subject property (west half) has direct frontage on Dodds Road. The east half of the property appears to have a sliver of land under the administration of the Bureau of Land Management, with a right of way grant (OR 47891) to cross this land. According to BLM staff, this right of way has been extended in perpetuity (Decision letter is in the record). Staff finds this criterion is met because the BLM has extended the right of way grant, they consent to the use of the road by the applicant. 4. Inspection of Event Premises Authorization. The applicant shall provide in writing a consent to allow law enforcement, public health, and fire control officers and code enforcement staff to come upon the premises for which the Limited Use Permit has been granted for the purposes of inspection and enforcement of the terms and conditions of the permit and DCC Chapter 18.16 Exclusive Farm Use Zone and DCC Chapter 8.08 Noise Control, and any other applicable laws or ordinances. FINDING: The applicant states the following in the burden of proof: “If the County has a written form for this consent document I will provide a signed version upon receiving my Limited Use Permit. Otherwise, I will draft a version if necessary. Staff finds that this requirement is met with a condition of approval that the consent form be submitted to and approved by the Planning Division prior to the first commercial event. C. Approval Criteria. LUP-12-2, Downs Page 14 2. Type 2. Up to six (6) agri-tourism and other commercial events or activities in a calendar year on a tract may be approved by a limited use permit that is personal to the applicant and is not transferred by, or transferred with, a conveyance of the tract, if in compliance with: a. Minimum lot or parcel size: 10 acres. FINDING: The subject property is 39.83 acres. Staff finds this criterion is met. b. Agri-tourism event may not, individually, exceed a duration of 72 consecutive hours, excluding set-up and take down of all temporary structures and facilities. The limitation on the hours of operations is included within the duration of 72 consecutive hours. FINDING: The applicant is not proposing any agri-tourism events. This criterion is not applicable. c. Commercial events or activities may not, individually, exceed a duration of 30 consecutive hours, excluding set-up and take down of all temporary structures and facilities. The limitation on the hours of operations is included within the duration of 30 consecutive hours. FINDING: The applicant has stated in the burden of proof that each proposed event will last between 8-10 hours in consecutive duration, and the events will be conducted on six calendar days each year. Set up and take down will occur for a few hours the day before and the day after the commercial event is conducted. Staff finds this criterion is met and imposes a condition of approval based on the application submitted limiting commercial events to the applicant’s proposal – 6 calendar days each year, excluding the set-up and take down of all temporary structures and facilities. d. Must be incidental and subordinate to existing farm use of the tract, and shall be related to and supportive of agriculture. FINDING: The findings for this criterion are addressed above. Staff incorporates those findings herein by reference. Staff finds this criterion is met. e. Set-up and take down of all temporary structures and facilities shall occur up to one business day prior to the agri-tourism and other commercial events or activities and one business day after the agri- tourism and other commercial events between 7:00 a.m. and 10:00 p.m. FINDING: The applicant states in the burden of proof statement that set-up and take down of the facilities used at the site will occur one day before and one day after the weddings, within the time limits listed under “e” above. Staff finds this criterion is met. f. May not require that a new permanent structure be built, used or occupied in connection with the agri-tourism or other commercial events or activities. LUP-12-2, Downs Page 15 FINDING: The applicant is not proposing any new permanent structure and the Planning Division is not requiring any new permanent structure be built, used or occupied in connection with the commercial events. The existing open-air building will be used as part of the wedding site. Staff finds this criterion is met. g. May not, in combination with other agri-tourism or other commercial events or activities authorized in the area, materially alter the stability of the land use pattern of the area. FINDING: There are no other authorized agri-tourism or commercial events or activities proposed or occurring in the area. The proposed event site is for up to six weddings over 4 months. The wedding events will be temporary in nature and practice. The existing land use pattern of the area is single-family dwellings with some farm use occurring, as well as some dry land (such as the BLM and COID lands to the north). Staff finds that the temporary nature of the weddings will have no impact on the land use pattern of the area. The farm use in the area will continue as currently conducted, which is mainly grass hay and livestock raising and grazing. Staff finds that the proposed wedding event site and activities meet this criterion. h. Must comply with ORS 215.296. FINDING: Oregon Revised Statutes 215.296, Standards for approval of certain uses in exclusive farm use zones, has two criteria that apply to the proposed use. They are: (1) A use allowed under ORS 215.213(2) or 215.283(2) may be approved only where the local governing body or its designee finds that the use will not: b. Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use: or c. Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. FINDING: None of the properties in the area surrounding the subject property are in forest use. There are many properties in farm use, including properties immediately adjacent to the subject property to the west, south and east. The main farm use in the surrounding area appears to be grass hay, with livestock raising and grazing occurring on lands devoted to pasture. Staff finds that conducting up to six (6) weddings on six (6) calendar days for up to 10 hours per event on the applicant’s property in a 4-month period will not force a significant change in these farm practices, or significantly increase the cost of accepted farm practices. Staff believes that existing farm uses will not be impacted by the wedding events and that the events will have any impact on the hay operations, livestock or grazing activities. Staff finds this criterion is met. i. Limited Use Permits approved under this section expire two years from the date of approval. j. Limited Permits may be renewed for an additional two years subject to: i. An application for renewal; and LUP-12-2, Downs Page 16 ii. Demonstration of compliance with conditions that apply to the limited use permit and applicable provisions in this section, DCC Chapter 18.16.042. FINDING: The approval for LUP-12-2 would be valid for two years from the date of approval. The date of approval would be after the review process is completed, including all appeals. The possibility for renewal exists, based on submittal of an application, and findings made demonstrating compliance with the conditions of approval as well as the then-current Deschutes County Code and state law. Staff finds this criterion is met. 4. The area in which the agri-tourism or other commercial events or activities are located shall be set back at least 100 feet from the property line. FINDING: The commercial events or activities areas all are at least 100 feet from the property line, as evidenced by the air photo in the record. The only exception to this is the entrance driveway into the site, which is closer than 100 feet at the front of the property. Staff finds that the entrance road is not part of the “activities” of the wedding venue site. Staff finds this criterion is met. 5. Notification of agri-tourism and other commercial events or activities. a. The property owner shall submit in writing the list of calendar days scheduled for all agri-tourism and other commercial events or activities by April 1 of the subject calendar year or within 30 days of new or renewed limited use permits, if after April 1, to Deschutes County’s Community Development Department and Sheriff’s Office, and all property owners within 500 feet of the subject property. b. The list of calendar dates for all agri-tourism, commercial events activities may be amended by submitting the amended list to the same entities at least 72 hours prior to any date change. c. If such notice is not provided, the property owner shall provide notice by Registered Mail to the same list above at least 10 days prior to each agri-tourism and other commercial event or activity. d. The notification shall include a contact person or persons for each agri-tourism and other commercial event or activity who shall easily be accessible and who shall remain on site at all times, including the person(s) contact information. FINDING: A condition of approval is included requiring compliance with these criteria for notification of events. 6. Sanitation facilities shall include, at a minimum, portable restroom facilities and stand-alone hand washing stations. FINDING: The applicant is proposing to utilize two bathrooms already on the property. These are more than the minimum required based on the expected number of attendees. The applicant states that hot and cold water for hand washing stations will be utilized for these events. Staff finds this criterion is met with the condition of approval that such facilities be LUP-12-2, Downs Page 17 maintained for the approved use and be subject to inspection upgrading if required by the Environmental Soils Division. 7. Hours of Operation. No agri-tourism and other commercial event or activity may begin before 7:00 a.m. or end after 10:00 p.m. FINDING: The applicant states that all events will occur and end within the specified hours. Staff finds this criterion is met with a condition of approval requiring compliance. 8. Overnight camping is not allowed. FINDING: The applicant states that no overnight camping will occur. Staff finds this criterion is met. 9. Noise Control a. All noise, including the use of a sound producing device such as but not limited to, loud speakers and public address systems, musical instruments that are amplified or unamplified, shall be in compliance with applicable state regulations. b. A standard sound level meter or equivalent, in good condition, that provides a weighted sound pressure level measured by the use of a metering characteristic with an “A” frequency weighting network and reported as dBA shall be available on-site at all times during agri-tourism and other commercial events or activities. FINDING: The applicant states that all noise and sound associated with these events will be monitored with a sound level meter and kept within the permitted levels allowed under this ordinance. Staff finds these criteria are met. 10. Transportation Management. a. Roadways, driveway aprons, driveways and parking surfaces shall be surfaces that prevent dust, and may include paving, gravel, cinders, or bark/wood chips. b. Driveways extending from paved roads shall have a paved apron, requiring review and approval by the County Road Department. c. The parcel, lot or tract has direct access as defined in DCC Chapter 18.16.042(B)(3)(c). d. Adequate traffic control must be provided by the property owner to address the following: i. There shall be one traffic control person for each 250 persons expected or reasonably expected to be in attendance at any time. ii. All traffic control personnel shall be certified by the State of Oregon and shall comply with the current edition of the Manual of Uniform Traffic Control Devices. FINDING: The applicant states that all surfaces utilized during these events will occur on a paved driveway, gravel driveway, or grass area for parking of vehicles. Staff conducted a site visit and confirms the property has a paved apron and paved driveway connection to Dodds Road. LUP-12-2, Downs Page 18 The property has direct access to Dodds Road through an approved right of way grant from the BLM. The anticipated number of persons expected or reasonably expected to be in attendance is 125- 150 people. This requires one traffic control person. A condition of approval is that 1 or 2 traffic control persons be on-site, depending upon the number of persons reasonably expected to be attendance at each wedding. Staff finds this criterion is met. 11. Health and Safety Compliance a. All permanent and temporary structures and facilities are subject to fire, health and life safety requirements, and shall comply with all requirements of the Deschutes County Building Safety Division and the Environmental Soils Division and any other applicable federal, state and local laws. b. Compliance with the requirements of the Deschutes County Building Safety Division shall include meeting all building occupancy classification requirements of the State of Oregon adopted building code. FINDING: The proposed open-air pavilion the applicant will use for the wedding facility meets the building code requirements for its use. Staff confirmed this with the County Building Division. Staff finds this criterion is met and imposes a condition of approval that all permanent and temporary structures and facilities comply with all State of Oregon adopted building code requirements and all Environmental Soils Division requirements. 12. The maximum number of people shall not exceed 500 per calendar day. FINDING: The applicant states that the average attendance is expected to be 125-150. Staff finds this criterion is met, and imposes a condition of approval that specifies no more than 500 people for all parts of any particular wedding, including any catering service, is permitted. 13. Agri-Tourism and other Commercial Events or Activities shall not be allowed: a. Within the County adopted big game winter ranges during the months of December through March. b. Within the County adopted big game migration corridors during the month of April and during the months of October and November. c. Within the County adopted sensitive bird and mammal habitat areas as defined in DCC 18.90.020, unless a site has had no nesting attempt or the nest has failed, as determined by a professional wildlife biologist in May of the calendar year in which the application is approved, unless a site has had no nesting attempt or the nest has failed which could be determined in May by a professional wildlife biologist. LUP-12-2, Downs Page 19 FINDING: The subject property is not located within any big game winter range, big game migration corridor, or sensitive bird and mammal habitat area. Staff finds this criterion is met. 3. Section 18.16.043, Single Permit A. The maximum number of agri-tourism and other commercial events or activities on a lot, parcel or tract may not exceed the total number of commercial events allowed by any individual land use approval, including a winery authorized under DCC 18.16.038(B), and events, outdoor mass gatherings or extended outdoor mass gatherings authorized under DCC Chapter 8.16. B. The following permits may not be combined: 1. Agri-tourism and other commercial events or activities under DCC 18.16.042. 2. Winery under DCC 18.16.038(B), 3. Events, outdoor mass gatherings, extended outdoor mass gatherings, parades or funeral processions authorized under DCC Chapter 8.16, 4. Home occupation for commercial events or activities. FINDING: The applicant is not proposing any other events at the site, beyond the 6 weddings they are requesting. Staff finds this criterion is met. 4. Section 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant is not proposing any new structures, or any additions to existing structures. Therefore, this standard is not applicable to the limited use permit. 5. Section 18.16.070. Yards. A. The front yard shall be a minimum of: 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. LUP-12-2, Downs Page 20 FINDING: The applicant is not proposing any new structures or additions to existing structures. These setbacks are not applicable to the limited use permit. IV. CONCLUSION: Based on the foregoing Findings, staff concludes the proposed limited use permit can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. V. DECISION: APPROVAL, subject to the following conditions of approval. VI. CONDITIONS OF APPROVAL: 1. This approval is based upon the application, specifications, and supporting documentation submitted by the applicant. Any substantial change in this Limited Use Permit will require review through a new Limited Use Permit application. No more than six (6) commercial events shall be conducted each year beginning on the date of this approval. The six (6) commercial events shall occur between June 1 through September 30. 2. The six (6) commercial events shall be limited to six (6) calendar days each year, excluding set-up and take down. No activity for a commercial event shall be conducted before 7:00 a.m. or after 10:00 p.m. 3. Prior to initiation of use, the applicant shall: a. Provide in writing a consent to allow law enforcement, public health, fire control officers and code enforcement staff to come upon the premises for which the Limited Use Permit has been granted for the purpose of inspection and enforcement of the terms and conditions of the Permit, and Chapter 8.08 of the county code, noise control. b. Provide notification of the weddings as prescribed under DCC 18.16.042(C)(5). c. The sanitation facilities shall be reviewed and approved by the Environmental Soils Division prior to the first event. The Environmental Soils Division may require additional sanitation facilities if the number of expected attendees exceeds the maximum capacity of the permanent, existing on-site facility. 4. The noise emanating from the site shall at all times meet applicable state regulations. A standard sound level meter or equivalent, in good condition, that provides a weighted sound pressure level measured by use of a metering characteristic with an “A” frequency weighting network and reported as dBA shall be available on-site at all times during the weddings. 5. All lighting on the subject property shall be required to comply with Chapter 15.10 of the Deschutes County Code, the Outdoor Lighting Control Ordinance. All exterior lights shall be sited and shielded so that no direct light projects off-site. LUP-12-2, Downs Page 21 6. Solid waste shall be disposed of at the Knott Landfill. 7. One traffic control person, certified by the State of Oregon, shall be required for up to the first 250 persons in attendance at the site, including any persons involved in conducting the wedding. A second traffic control person shall be required if more than 250 persons are reasonably expected to be in attendance at the site, including any persons involved in conducting the wedding. 8. No more than 500 people shall be in attendance for any wedding at the site, including persons involved in conducting the wedding and caterers. 9. No overnight camping shall be allowed. 10. Catering is subject to licensure and inspection at the caterer’s base of operations only, including transportation vehicles and equipment. Food prepared on site requires a temporary restaurant license. 11. All permanent and temporary structures shall comply with the State of Oregon’s adopted building code and the Deschutes County Building Safety Division’s fire, health, life safety, accessibility, and occupancy requirements at all times. 12. Agriculturally exempt structures are prohibited from occupancy by the public. 13. If a small, non-regulated water system is used to supply water to the public, they must be approved by the Environmental Health Division prior to the first event. VII. DURATION OF APPROVAL: The applicant shall complete all conditions of approval and initiate the proposed event facility within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION Written by: Paul Blikstad, Senior Planner Reviewed by: Nick Lelack, Planning Director Dated this 15th day of June, 2012 Mailed this 15th day of June, 2012