HomeMy WebLinkAboutShepherd PARK post-hearing materialsCENTRA OREGON
LANDWATCH
March 9, 2015
Deschutes County Board of Commissioners
c/o Will Groves
Deschutes County Development Dept.
P.O. Box 6005
Bend, OR 97708
Re: Shepherd Private Park Application
File Nos. 247 -14 -000 -228 -CU and -229-SP
Dear Commissioners:
?.5.11; 64/-:'9:3()
www,centraloregonlandwatch.org
This letter is to provide follow-up comments and to respond to issues raised at the hearing on March
2. I also want to reiterate the request that I made at the hearing which was to include the Applicant's
prior applications regarding and connected to the proposed private park application, including the
application for a commercial event permit for weddings, the 2013 application for weddings on a two -
acre private park, the modified 2013 application for a private park on 216 acres, the application for a
non-farm dwelling, the records concerning Code complaints and violations regarding weddings, and
the tax proceedings regarding agricultural use of the land.
The proposed use does not qualify as a private park.
State Law
As held in the Oregon Court of Appeals case of Cherry Grove, exceptions allowing additional uses
on EFU land should be construed narrowly. Accordingly, the allowance of private parks in
215.283(2)(c) and DCC 18.16.031(E) should be construed narrowly.
LUBA in Spiering v. Yamhill County, 25 Or LUBA 695 (1993), determined that "private parks"
encompass a paintball park, reasoning that such "recreation" uses qualify the proposed use as a
private park. We believe this LUBA decision is wrong in allowing such broad and impactful uses in
the EFU zone where there is no legislative history indicating that anything other than quiet and non-
commercial uses of a private park were intended. We do not make this argument here in the
expectation that the County Board can interpret state law in any way different than LUBA, but only
wish to preserve the issue.
2
But even if LUBA is correct in its interpretation of recreation, the proposed use in this case of an
event center is far beyond what has been allowed by LUBA. Unlike that LUBA case, what is
proposed here is not recreation but instead a commercial event center (mostly for weddings) which
merely could involve some recreational activities.
County Code
Beyond addressing whether the proposed use meets the standards of state law, the County is also to
consider whether the proposed use qualifies under the County Code provisions of DCC
18.16.031(E). As held by the Supreme Court in the Siporen case, a county is entitled to deference in
interpretation of its own code. A county may also have more restrictive standards than in state law
for conditional uses on EFU land.
It would be appropriate for the County to narrowly construe its own Code on this matter where it has
established an extensive system already regulating weddings and other events. DCC 18.16.042. The
private park being pursued here would substantially undermine that system, allowing wedding event
operations without them having to meet all the required criteria in DCC 18.16.042.
At the hearing, Mr. Hunnicutt asserted that I was wrong in arguing that the events legislation was to
be the exclusive means for allowing wedding events, and he pointed out a provision in the state law
that specified it was not to be exclusive. He has misstated what I argued. My point was that the
County could construe its Code to hold that its event venue provisions are the exclusive means for
allowing such events on EFU land. Again, the County can be more restrictive than state law. Unlike
the state law, the County in adopting its events legislation did not include a provision stating that it
was not exclusive.
Reliance on the Hearings Officer's determination regarding weddings as recreation is
inappropriate.
The Applicant at the hearing repeatedly referred to the Hearings Officer's earlier determination that
weddings would be allowable in a private park because of associated recreation. It is inappropriate
for the Applicant to rely on that determination where it was made in the context of a 216 -acre park
with proposed recreation activities far outside the context of a wedding. While weddings may have
been a minor and secondary use to the recreation uses on a 216 -acre park, they are central to this
now proposed 1.5 -acre private park. I also want to emphasize again that the Hearings Officer denied
the application for a private park because of its failure to analyze the impact on surrounding lands
and the failure to show that it was located on the least suitable part of the property. The Hearings
Officer also pointed out if weddings would be allowed on that 216 -acre park that there would be a
need for the Applicant to keep a monthly log in order for the County to determine that it was a minor
and secondary use of the private park.
The Record is clear that what is contemplated here is a wedding event center, not a recreation
park.
The factual record is overwhelming that what we are dealing with in this application is a wedding
event center, not recreation. As pointed out by the Hearings Officer in her decision, this is
3
evidenced by the fact that the Applicant has already been doing weddings for years. These wedding
events were not permitted and the Applicant has been subject to Code enforcement actions. The
intent is further evidenced by the earlier application for a commercial event permit for weddings and
then solely for weddings on a 2 -acre private park. After the involvement of Oregonians in Action,
the application was modified to the 216 -acre private park with identification of various "recreation"
activities. The evolution of these applications is described in the Hearings Officer's decision at page
10.
The proposal for tent and RV camping should be rejected.
The Staff at the hearing suggested that the proposal for tent and RV camping associated with these
events was no longer being considered. LandWatch has not seen in the Record where the Applicant
has actually withdrawn this part of the application. At the very least, neither the Applicant nor the
Staff presented any support for allowing these uses.
The proposed use of the farm dwelling for the events should be denied.
There is no basis cited by the Applicant or Staff for allowing the proposed use of the farm dwelling's
bathroom, bedrooms (for clothes changing), kitchen and deck as part of this event venue/private
park. What is described sounds like a home occupation is being proposed, but there has been no
application for that use.
The proposed use has not been shown to be consistent with the Farm Management Plan.
There has not been compliance with the Farm Management Plein.
The Applicant at the hearing repeatedly argued that they are in compliance with the Farm
Management Plan and will comply with it. That is contrary to the actual evidence and admissions in
the Record, including Mr. Shepherd's representations in a county tax proceeding (attached) that he
was not appealing disqualification of his farm deferral, but rather of his "wasteland" status of the
"un-farmable" 213 acres of land to wasteland and the January 12, 2015, letter of Mr. Hunnicutt, at
page 2, acknowledging that the Applicant was not following the Farm Management Plan. At the
hearing, the Applicant kept referring to what they intended to do in the future, but there has been no
amendment to the Farm Management Plan and what is applicable is the Farm Management Plan
currently in place. All of the stated plans for irrigation and getting cattle and putting them elsewhere
on the property are pure speculation at this point and there is no Farm Management Plan or other
evidence substantiating such use. Selling a few eggs also does not constitute a commercial scale
farm operation which is required for a farm dwelling.
The Farm Management Plan is still applicable.
The Applicant has argued that the Farm Management Plan ("FMP") is no longer applicable and was
not meant to be a permanent condition of approval. The Applicant argues that the Code merely calls
for the property to be "currently" employed for farm use and that once a building permit is issued,
such farm use and the FMP are no longer relevant. The Applicant also argued that it would not
make sense otherwise since the only solution would be for the County to make people tear down
4
their farm dwellings when they no longer complied with the farm dwelling criteria. As I explained
at the hearing and as the Hearings Officer explained in her decision, that is not the case. What
would be required is that a party would then file for a non-farm dwelling as Mr. Shepherd at one
time did.
Mr. Hunnicutt argued that LUBA in the case of ONDA v. Harney County, 65 Or LUBA 246, 261
(2012), held that it was not required for a farm dwelling that there be continued farm use. As I
explained, the case actually said that a condition of approval requiring continued farm use was not
necessary since it was already a requirement that the use must continue at a commercial scale and
that the farm dwelling be occupied principally by someone engaged in agriculture at a commercial
scale. None of that is happening here.
Mr. Hunnicutt has also argued that the Farm Management Plan is not an approval criterion and under
the Code the private park cannot be denied because conditions of approval of another application are
not being followed. That argument is not applicable here where they are proposing to use the farm
dwelling, there needs to be proof that the proposed use is not going to be affecting the Farm
Management Plan and there needs to be proof that the site is suitable for the intended use.
The proposed site for the private park is not located on the least suitable site.
Mr. Hunnicutt argued at the hearing that the consideration of whether the proposed use is located on
the least suitable site under DCC 18.36.040(A)(3) is not applicable to private parks under DCC
18.16.031 and is only applicable to uses under DCC 18.36.030. That is contrary to the Hearings
Officer's decision, at pages 14-16 which did apply the criteria of DCC 18.36.040. Though DCC
18.16.040 only refers to DCC 18.16.030, that appears to be a clerical error or an accidental omission
of DCC 18.16.031 since DCC 18.16.031 itself states that its uses are subject to DCC 18.16.040.
Mr. Hunnicutt's proposed interpretation would be a major policy decision by Deschutes County,
exempting a host of uses listed in DCC 18.16.031 from this siting requirement of a use being sited
on the least suitable lands for farm use. It would also create an illogical inconsistency between
creation of a private park and an expansion of a private park. It would mean than an expansion of a
private park under DCC 18.16.030 would be subject to this siting requirement, but the creation of a
private park in the first place under DCC 18.16.031 would not be subject to it. If there is to be a
difference in siting standards between creating a private park and expanding it (and none come to
mind), you would think that the more impactful establishment of the new use in the first place would
have to meet the stricter siting standard of being on the least suitable site rather than just an
expansion of the use.
As we pointed out at the hearing, there is inadequate evidence that the proposed site is located on the
least suitable site where there has not been a thorough comparative analysis of different sites on the
property. Nothing has changed since the Hearings Officer found that it had not been established that
this is the least suitable site. There is also no basis for relying on any soils analysis other than
NRCS.
5
There is inadequate evidence that the private park will not force a significant change on
surrounding farm use.
There is no assessment of noise or traffic impacts on farm animals or operations. The applicant's
analyses are oriented to impacts of noise on people and on impacts on road capacity.
The Applicant has not established that the private park is consistent with the property's
Wildlife Management Plan.
A provision of the existing Wildlife Management Plan is: "There will be very little road usage on
the property due to the type of farming operation present there." Allowing events for up to 250
people and the associated traffic is not consistent with the Wildlife Management Plan that allowed
the siting of the dwelling (now proposed for the wedding events) so far from existing roads. The
reason for the county rule requiring the siting of new dwellings within 300 feet of existing roads is to
prevent exactly this problem of new substantial traffic being introduced into wildlife zones.
There is inadequate evidence of adequate parking and an adequate parking surface.
At the hearing, Mr. Shepherd defended his inadequate parking provisions on the basis that his past
(unpermitted) events attracted far less than the 250 people his current application is based on. If he
is seeking a permit for up to 250 people, he needs to provide parking for that amount.
Thank you for your consideration.
Very truly yours,
Paul Dewey,
Executive Director
50 OW Bored St., Ste. 4 1 Bel OR 97702
Phone: (541} 647 2930
www.centraloregonlordwatch.org
,tel 0l._... _7 1rfe!.1C.,N ..•
Ccirnrr!
Regarding case #14033N r" l Co O r Lit-c t , i , -
1 .'l�
LJ OCT 1 0 2014 Ii
usrliJrt" rs�ii r
Deschutes County Counsel Laherty made a motion to dismiss based on four assertions i _F tLC Lonsia
Motion for appeal to continue to hearing
1. His foremost assertion was that 1, as plaintiff, was not aggrieved and therefore lacked standing. This is
not true. Prior to the 2014 disqualification by the County Assessor, the 213 acres of land (out of 216)
had in 2013 enjoyed "wasteland" status and therefore was exempt from both taxation and the
requirement to work the land. On May 23, 2014, the Assessor disqualified this 213. (see exhibit #1)
They stated that my "potential additional taxes for this disqualification are $18,861.41", money I could
not afford. This disqualification and threat of past taxes forced me to take two simultaneous actions: 1)
to prove up my land at considerable expense and 2) to appeal their disqualification of my wasteland.
5o, am I aggrieved?
Webster's definition of "aggrieved" is "1. Troubled or distressed in spirit. 2a. Suffering from an
infringement or denial of legal rights. B. showing or expressing grief, injury, or offense.
All of these definitions of "aggrieved" apply to me. Not only has this disqualification caused me
"trouble and distress" but it has "infringed and denied me the legal right" I enjoyed before, the right to
not farm land that is legally considered un-farmable. And, most importantly, the County's
disqualification has caused me "injury" in that I have been forced to and will continue to be required to
spend considerable money to acquire irrigation water rights, to repair and maintain fences, to install
irrigation and to purchase and maintain livestock. These costs and injuries would not have occurred if
the County assessor had not disqualified 213 acres of rocky land that had previously enjoyed
"wasteland" status.
As 1 stated in my initial appeal, "1 further contend that their actions created stress, hardship and
unnecessary expense as I was forced to fence, irrigate and graze wasteland that is not economically
grazeable." (See original "Summary of John Shepherd's tax appeal")
2. Mr. Laherty's second assertion was "Plaintiff failed to respond to the April 18, 2014 Notice and on May
23, 2014 the Assessor sent Plaintiff notice advising him that the Property had been disqualified from far
use tax deferral." (page 2, line 16-18 of motion to dismiss) This also is untrue. On May 10th, I emailed
Deschutes County Tax Assessors office an email titled "Defense of Farm Deferral". (see exhibit #2) 1
included evidence refuting their claim that no farm activity was occurring, including my schedule F.
Thus began a series of emails. So, again, Mr. Laherty is wrong in his motion to dismiss.
3. Mr. Laherty further asserts in his motion to dismiss "Based upon the documents submitted by Plaintiff
in the County land use proceeding and the results of the Assessor's Office's site inspection, the
Deschutes County Assessor determined that the Property was not in "farm use" as necessary to support
a farm tax deferral." (page 2, line 10-13, emphasis mine). This is not what the Assessor's office told me,
however. In a May 13, 2014 email, they said "The exclusive farm use deferral special assessment
review of your property is a response to your comment in the 3/29/14 Bulletin article about your
property not being suitable for farming." (please see exhibit #3.) So, the Assessor's own words
contradict Mr. Laherty's assertion.
4. Furthermore, Mr. Laherty asserts "Plaintiff seeks to appeal the Deschutes County Assessor's May 23,
2014 decision to disqualify the Property from exclusive farm use tax deferral." (page 3, line 11) Again,
Mr. Laherty is wrong. I am not appealing the disqualification of my farm deferral. In my Initial appeal,
I clearly stated my request: "I therefore ask that their decision disqualifying my wasteland be
reversed..." (See original "Summary of John Shepherd's tax appeal", concluding sentence) There is a
very important legal distinction here. My request is that the Court consider whether the written
definition of "wasteland" should apply, and in so doing reinstate the wasteland status, or whether
some unwritten "intent" of the statute should apply, as the Assessor contends.
Finally, the Assessor's office themselves stated that I could appeal their interpretation of the wasteland statue.
On June 10th, 2014, in an email, they stated, "It is the Deschutes County Assessor's office interpretation of the
wasteland statute that incidentals may exist on a property but the intent of the statue is not meant to be
applied to the vast majority of a property. if you disagree, you have the right to appeal." (See exhibit #4) This
is the seminal issue. So, do I have the right to appeal it or don't I?
The remedy I am seeking is that the "wasteland" status of the un-farmable portion of my property be
restored, thereby relieving me of the perpetual expense and burden to work land that is, by definition,
unprofitable to work, I am seeking that my legal rights be protected and that the letter of the law OAR
308A.056 be upheld.
John She') erd-plaintiff Date
May 23, 2014
SHEPHERD, JOHN H & STEPHANIE J
71120 HOLMES RD
SISTERS, OR 97759
Assessor's Office
Scot Langton, Assseso
P.O. Box 6005 • Bend, OR 97701
1300 NW Wall St, Suite 204 • Bend, 0R 97701-196C
(541) 388-6508 • Fax (541) 362-1692
www. co. deschutes, or. u:
ACCOUNT NUMBER: 160620 MAP & TAX LOT: 141100-00-00103
COJ 2-003 ZONE: EFU DISQUALIFIED ACREAGE: 212.95 of 215.95
In compliance with ORS 308A.718 and 308A.724, this is official notification that the
special assessment of 212.95 acres of EFU land on the above real property
account(s) has been disqualified by the Assessor for the following reason.
Currently farmland is lying idle or is no longer in a qualifying use anti has been
disqualified from the following program:
• Exclusive Farm Use, ORS 308A,113(1)(a)
The potential additional faxes for farm use disqualifications will be deferred under
ORS 308A.706(1 ) (a) when farmland becomes idle and does not change to a
different special assessment. in the future, if this land changes to an
incompatible use the deferred additional taxes will become collectable. Uses
that are incompatible with returning the land to form use are; such as using the
land for residential, commercial, industrial purposes, or any other use that is
incompatible with farm use. Any acres deferred under ORS 308A.706(1) (a) will be
no longer specially assessed and will be assessed based on market value as
calculated udder ORS 308,156.
- ^gar 060 cnonge ro a afferent special assessment and the potential
additional taxes will be deferred under ORS 3O8A.706(I )(d). Land will receive
special assessment for any acres (or portion) that can meet the program
qualification requirements of a different special assessment Any acres that
remain no longer specially assessed will be assessed based on market value as
calculated under ORS 308.156.
(See "Change of Special Assessment" section of this disqualification notice)
iv
Defense of farm deferral
John Shepherd <shepherdsfield@gmail.com>
To: erics@deschutes.org, assessor@deschutes.org
Dear Mr. Sexton and Mr. Langton,
1 am writing in response to your recent letter threatening to revoke my Farm Deferral status. Pardon me if I sound
paranoid, but in vlew of the County's on going efforts to shut down my wedding venue and my church, I'm
beginning to wonder If there Is a conspiracy going on. To begin with, would you please answer the following three
questions in detail.
1. Your letter states "It has comes to the assessor's office attention that no farm use is being conducted on your
property." First, this conclusion wrong. Second, please explain how this came to your attention. Please also
explainfitkyou state this as a fact and not as a question. This seems like a case of witness, judge, jury and
executioner all rolled Into one. One would think that you would be interested in my response before you reached
this conclusion. l'm attaching my 2013 sch F. From the flock of hens that we still have, last year we sold some of
our eggs at the Sisters Farmer's Market and some to wedding guests. In addition to that, our regular egg
customers include Ann S., Jan M, Ray R., Jimena S., and Bill B. I'm also attaching a photo of our stock of new
egg cartons and the sign we use to see eggs. So, as you can see, your assertion is wrong.
2. Your letter stated: "Therefore, notice is given that the mentioned property has failed to continue to qualify
because: -Proof/Evidence that the land is used for farm use."Are you claiming you have proof? If so, what proof?
Or are you requesting proof to the contrary? Please explain. Your wording is confused.
3. Last year, at this same time, 5/9/13, we went through this whole matter. i emailed lou photos of my poultry
operation and a copy of my 2012 Sch F. I also sent photos of the waste land on which my property sits, as well as
counsel from Gregory Plass with the State of Oregon, Including detailed calculations he gave me on how to
determine waste land. I explained, as per Mr. Plass' terms and definitions, that the majority of our land is "waste
land" end therefore exempt. Your office never responded. Has something changed between then and now that
you are raising this issue again? If so, please explain those changes.
am wilting to consider re qualifying this acreage as Wildlife Habitat but, years ago, when I had a State agent
come out to discuss this option, his repeated response to my questions was '1 will not do or say anything to help
you." He probably repeated this mantra 10 times, 1 just wanted to know the ramifications of such a ohange to any
future effort to partition the property. If there Is someone else that 1 could speak with about this option, who would
actually answer my questions, I'd be happy to have this discussion.
Sat, May 10, 2014 at 9:43 AM
I look forward to your detailed written reply as a step forward in resolving this matter,
Sincerely,
John Shepherd acct #160620
2 attachments
GEDC0301.JPG
3560K
Defense of farm deferral
Eric Sexton <Eric.Sexton@deschutes.org> Tue, May 13, 2014 at 10:31 AP
To: John Shepherd <shepherdsfield@gmail.com>
Mr. Shepherd,
Thank you for the reply,
The exclusive farm use deferral special assessment review of your property is a response to your comment In
the 3/29/14 Bulletin article about your property not being suitable for farming.
The letter itself is a format provided by the Oregon Department of Revenue and is required to be sent per
statute. It is requesting proof/evidence from the property owner to show cause why the property or portion
of the property should not be disqualified from the exclusive farm use deferral special assessment program.
We would Tike to suggest an in person meeting with myself, our Assessor, and you to discuss this issue
further and what options may exist, Please let us know if you are interested and we can set up a time and
date to meet in the Assessor's office.
Inquires about participating in the special assessment tax deferral Wildlife Habitat Conservation Easement
Program should be directed to Nancy Breuner at the Oregon Department of Fish and Wildlife, 541-388-6363,
Call or write with any questions.
Eric Sexton
Deschutes County Assessors Office
Property Appraiser
541-388-6692
erics@deschutes.org
Response to farm disqualification questions - Account#160620
Eric Sexton <Eric.Sexton@deschutes.org>
To: John Shepherd <shepherdsfieid@gmail.com>
Mr. Shepherd,
Tue, Jun 10, 2014 at 2:27
It is the Deschutes County Assessor's Office interpretation of the wasteland statute that incidentals may exi:
on a property but the intent of the statute is not meant to be applied to the vast majority of a property. If
you4i6agree, you have the right to appeal.
Link to appeal form: http://courts.oregon.gov/Tax/Pageslforms.aspx
Call or write with any questions.
Eric Sexton
Deschutes County Assessors Office
Property Appraiser
541-388-6692
erics@deschutes.org
From: John Shepherd [mailto:shepherdsfield@gmail.com]
Sent: Monday, June 09, 2014 11:1,5 AM
To: Eric Sexton
Cc: Scot Langton
Subject: Re: Response to farm disqualification questions - Account#160620
r
[Quoted text hidden)
William Groves
From: John Shepherd <shepherdsfield@gmail.com>
Sent: Monday, March 09, 2015 9:50 AM
To: William Groves
Cc: Dave Hunnicut
Subject: two documents to add to the Shepherdsfield application record
Attachments: IMG_0001jpg; response to final objections.docx
Good morning, Will.
please find attached my answers to the oral objections raised by Mr. Dewey and Ms. Gould. Please include this
in the record and arrange for it to be read by the Commissioners.
Also, did you see the Saturday staff editorial in the Bulletin? It was 100% in favor of our park. Thanks to your
thorough work and our persistence, we seem to have the public behind us. See attached. Please print this out and
include it in the record as well.
Thanks,
John
1
Applicants answers to objections raised by Dewey and Gould
Most of the objections raised by Mr. Dewey and Ms. Gould at the hearing were merely incidental
accusations meant to derail the application and meant to bury us. Few, if any, are based on central issues.
Each time I have applied for a permit, they have opposed it, often on silly technicalities, and then, when
they succeed in denying me a permit, they blame me for operating without a permit. For example, when I
applied for a 216 acre park, Dewey objected that the park was too big. Now, when I reduced the size to a 2
acre park, he objects that it is too small. Clearly, as is his nature, he throws every objection against the
wall, hoping that one will stick, hoping to wear down his opponent under the sheer number of objections.
This is how he has hounded the City of Bend regarding their pipeline application. I will however, address
many of his objections below.
1. Mr. Dewey and Ms. Gould questioned whether the park was located on the least farmable ground.
Wildlife biologist Ray Romero addressed that in his letter and stated:
Response #4 - According to the Natural Resources Conservation Service maps of the subject
area, none of the soil on the property is considered high value soil. It is categorized as either 6E
or 7E, unsuitable for agriculture. The soil on the slopes has better potential for agriculture, if
irrigated, than the soil on the plateau where the venue is located. Therefore, the venue is
located in an area least suited for agriculture.
2. Paul Dewey suggested that our brides should just get married at local resorts. For our brides, these are
too expensive, usually in the $20,000-$50,000 range, compared to our $2000 range. From experience,
many of these brides would end up holding their weddings on the farms or acreage of friends or family.
Yet, these ad hoc venues are less suitable. They do not have ample, approved, off street parking,
approved neighbor buffers, approved facilities, adequate size, appropriate insurance, professional
supervision, etc. So, the unintended consequence of Mr. Dewey's demand would be more potential
trouble, not less.
Here is an example of a letter I received from a bride who could not wait any longer for a confirmation
from the County:
Hi John,
Just wanted to let you know that we have decided to have our wedding at a friend's farm, so
you can take us off your calendar. I hope that you get the approval that you deserve, and
maybe another bride can have our day.
Best wishes,
Carrie Sether
3. Mr. Dewey stated that when he was married years ago, weddings were not a recreational event. Well,
times have changed. Brides today want a wedding party as much as they want a ceremony. This is
especially true of brides who choose an outdoor venue. They come expecting 6-8 hours of recreation. If
they just wanted a ceremony, they would get married in a church. Furthermore, Karen Greene ruled
that, as long as the ceremony is incidental and subordinate to the overall recreational event, wedding
ceremonies are allowed. If Bend City parks and Deschutes County parks allow weddings, then private
parks should allow weddings too.
4. Mr. Dewey stated that we applied for a non-farm dwelling. He is mistaken. The previous land owner
may have many years ago, but we never have.
5. Mr. Dewey says that this park will set a dangerous precedent. First, the law specifically and deliberately
allows parks on non -high value EFU land. The legislature set the precedent already. If my secluded 216
acres do not qualify for a park, what would? Second, single purpose parks have already been approved
in Deschutes County, namely, the Bend Trap Club and a paint ball arena. If shooting guns is park -like,
then certainly dancing, dining and outdoor recreation is too.
Furthermore, virtually all of the Bend City parks and two of the County parks allow weddings. 5o,
allowing wedding events on a park sets no precedent.
Dewey also said it is a "contortion" to allow a park for the sole purpose of events. Well, when an event
is a gathering for a specific recreational purpose, such as a summer ball, a family reunion or a wedding,
it is well within the definition of a park to be the setting for such gatherings. These recreational events
are no "contortion" of the park definition. In fact, Karen Greene ruled that wedding receptions are
recreational in nature and thus suited for park use.
6. Mr. Dewey and Ms. Gould expressed concern about traffic congestion. County studies have shown that
Holmes Road experiences about 360 trips per day, even though it has a capacity of 6000-9000 cars. I
don't think an additional 20-60 cars will create a traffic problem. In fact, since guests leave at night,
they will be lucky to even pass a car on their drive home.
7. Dewey and Gould expressed concerns that an event, with setup and cleanup, could extend into Friday
or Sunday. First, as Mr. Groves pointed out, Agri -tourism events allow setup and cleanup periods,
beyond the event day. Second, there is a clear distinction between an event and the subsequent
setup/clean up. The setup/clean up involves very few people and falls into the "maintenance" aspect
of the park, not the event aspect. All parks require and allow maintenance. Furthermore, the CUP
approval specifically limits the hours of the event from between 2 PM and 10 PM.
8. Ms. Gould raised numerous objections that I might turn the park into a motocross arena or some other
activity. However, my application specifically enumerates the activities that will take place: dining,
dancing, music, talking, badminton, volleyball, strolling, talking, etc. All these activities are equal to
what other parks do. And, for the record, I have no intention to ever allow motocross or shooting on
the property. (Shotgun weddings excepted. Lol.)
9. A concern was raised that we comply with all of the code requirements regarding sanitation, safety and
transportation. While I realize that our opponents' true concern isn't about code compliance but just
about blocking the permit, Mr. Groves clearly pointed out that our permit is conditioned upon first
complying with all of the concerns of the various county departments. We will not be allowed to begin
operations until these department concerns are approved in writing or will have certain areas/aspects
excluded from use until approved.
10. Mr. Dewey suggested that our activity be better addressed as a "home occupation". In that virtually all
of the activity occurs outdoors, and is recreational in nature, operating under the "park" provision of
the law is most appropriate.
11. Mr. Dewey worried that I have neglected my farm use. Not only have a maintained my farm use, and
have passed two recent audits by the Deschutes County Tax Assessor's office, but I am expanding my
farm use. I have recently purchased water rights from Three Sisters Irrigation District. I have committed
to purchase six head of cattle in two weeks. I have recently built a holding pen and am building a
livestock shed. I am working hard to balance my farming obligations with my Wildlife Management
Plan obligations. This is a difficult task on EFU land that is sited on a rocky plateau.
12. Mr. Dewey and Ms. Gould expressed concern that our kitchen was being used for cooking and is thus a
commercial kitchen. As discussed in our application, cooking is performed off site by the caterers and
merely assembled and served here. Occasionally, a licensed caterer using an approved appliance will
barbeque the meat outdoors. On rare occasion, the food is prepared and served outdoors by the
families, as would be permitted in a public park. But at no times is our kitchen used to cook the food
for the event. The same can be said about water. As discussed in the CUP, either the caterer or the
venue guests provide their own bottled water. Our well is not used for drinking water.
13. Ms. Gould expressed concern that we would have adequate parking. Based on our average attendance
of 120 guests and Mr. Groves calculation of 1 space per 4 guests, we would only need, on average 30
spaces. However, we will have more than twice that number. Furthermore, we have five paved spaces
immediately adjacent to the house in case of ADA parking need.
14. Ms. Gould repeatedly questioned how our permit conditions would be enforced, such as curfew and
noise. The Code Enforcement Department will have the responsibility to enforce this, as they do with
all county code concerns. We will not be exempt.
15. Ms. Gould expressed concerns that we provide bicycle parking facilities. As Mr. Groves discussed,
people rarely ride bicycles to weddings, especially those that are many miles from town. However, if
someone does ride a bicycle, there are plenty of places to park it.
16. Ms. Gould stated that our land is "high value" farm land in that it grows Juniper trees, which, she says,
are of high value. The Oregon Department of Agriculture disagrees. In fact, there are numerous gov't
programs that pay to cut down Juniper trees. Our Wildlife Management Plan, written with cooperation
of ODFW, specifically calls for the removal of Juniper trees in order to restore native habitat.
17. Ms. Gould suggested that our venue would be better addressed as a mass gathering. I believe that
mass gatherings are for groups in excess of 500 and for purposes of public speaking and political rallies,
not recreational receptions.
18. Ms. Gould questioned how the fire department would view our venue in general and our house use in
particular. I called our district office about this and spoke with the Captain of the Cloverdale Fire
District. He said that he was asked three times about our venue by the County staff and that all three
times he told them he had no concerns. Furthermore, he told me that as long as there is no new
construction and that the house isn't being remodeled or repurposed (such as a commercial kitchen),
that there is no need for fire district review. He specifically stated that the public use of the bathrooms
and the bridal party use of the bedrooms for getting dressed is not a repurposing and is therefore of no
concern.
19. Ms. Gould expressed concerns that the County "protect the livability" of Central Oregon. First, the right
of land owners to use their property is a part of Central Oregon livability. Second, there is a severe
scarcity of affordable outdoor event venues. This scarcity harms the livability for Deschutes County
residents when they can't find a location for their event. Just as housing scarcity has created an
affordable housing crisis, so has venue scarcity has created an affordable venue crisis. Third, our
proposed use involves only 1% of the property, 1% of the time. And, due to the size of the property
and its remote location, our neighbors are not affected as well. This was testified to by Mr. Simpson,
one of our neighbors. In fact, over the last several wedding seasons, none of our neighbors has issued a
single complaint. I am confident this limited venue use will not adversely affect the livability of anyone
involved. Rather, it contributes to local livability both through the recreation of our citizens and
through the economic activity it creates.
20. Finally, in answer to Mr. Russell's (transportation) concerns that allowing cinder would set a precedent
for parking material, the DCC code already allows the hearing body to make allowances when justified.
So there would be no precedent. I believe that this "allowance" provision was put in place specifically
for exceptional situations like mine, that don't cause dust problems (due to isolation and minimal
traffic) and don't require all weather surfacing (due to summer only use.) Again, if designated parking
for Deschutes County Fair guests is grassy dirt, then I should be able to provide cinder. And if the
County doesn't pave high speed and dangerous roads like Buckhorn due to cost considerations, then it
seems only reasonable that I should be given the same cost consideration on a project that will only
serve 18 cars per year per space.
rB4 THE BULLETIN • SATURDAY. MARCH 7, 2015
EDnoBi&Is
Weddings should
be allowed on
land near Sisters
Holding weddings on John Shepherd's property near
Sisters is not going to be a great undoing of Oregon's
land use system. It's an opportunity to show how the
system can be flexible enough to allow reasonable uses,
The pastor has been working
for years to make the business he
operates on his property legal. He's
faced fines from the county. He got
a warning when he was holding
church services.
He just wants permission to hold
one wedding or other similar event
a week. It will be on Saturday or
Sunday between 2 and 10 p.m. He
is asking for permission to hold 18 a
year.
He's got 216 acres. And the solu-
tion the Deschutes County Commis-
sion is zeroing in on is to designate
a 1.6 -acre piece of the property as a
private park.
He initially sought a designation
for a private park for his entire prop-
erty. That was rejected in 2013 by a
hearings officer, because it seemed
to conflict with the possibility of any
agricultural use and winter deer
range. So the request was narrowed
to the 1.6 acres.
Can the road handle the traffic?
Yes, the county says.
Is there adequate parking, on-
site? That seems resolved.
What about noise? The county's
analysis concludes it shouldn't be
too bad for the nearest neighbors.
What do his neighbors think?
One neighbor recently testified
on Shepherd's behalf. We are not
aware that his other neighbors op-
pose his plan.
So what is the problem? The
county has been trying to sort out
if weddings fit into the law under
a private park. Previous decisions
have emphasized the recreational
activities that would take place in
private parks.
The county staff believes wed-
dings and the ensuing activities
should qualify. We agree. The ac-
tual ceremony at a wedding is brief.
Then comes the assorted recre-
ational activities.
It is Shepherd's property. In gen-
eral, he should be able to do what
he wants on it. But he can't do any-
thing he wants.
Oregon's land use laws should be
flexible enough to accommodate his
reasonable proposal or they need to
be changed.
J
CENTOPIEGON
LAN D WATC H
March 16, 2015
Deschutes County Board of Commissioners
c/o Will Groves
Deschutes County Development Dept.
P.O. Box 6005
Bend, OR 97708
www.centroloregonpran c k h.rar9
DEUVEittli) By.
Re: Shepherd Private Park Application
File Nos. 247 -14 -000 -228 -CU and -229-SP
Dear Commissioners:
This letter of Central Oregon LandWatch is to provide a short response to Mr. Shepherd's post -
hearing submittal and to respond to Staff's March 9 email on the scope of the Record.
As an initial matter, Mr. Shepherd's accusation that opponents to his project are being inconsistent in
seeking denials of his permits and then blaming him for operating without a permit does not make
sense. Obviously, if he does not have a permit, then he should not operate. Also, where he has been
denied a permit, it is the County, not opponents, that has denied the permits, and Mr. Shepherd had
the option of appealing previous County decisions ruling against his applications.
Mr. Shepherd is also incorrect in describing the opposition of Central Oregon LandWatch as being
that the earlier application was for a park too big and that the current application is for a park too
small. Our opposition has been that the Mr. Shepherd's applications have not satisfied the Code
criteria.
We have also not argued, contrary to Mr. Shepherd's misrepresentation, that weddings should occur
"at local resorts." We only mentioned that the County has an established event ordinance that
ensures ample facilities and regulation.
I mentioned an application for a non-farm dwelling (it was actually a deposit for a non-farm
dwelling application) because Hearings Officer Green mentioned it at page 4 of her Decision and to
give an example of how the problem of a farm dwelling can be dealt with where the property is
being used in a way no longer consistent with the approval of a farm dwelling.
Again, contrary to the description of Mr. Shepherd, this event venue is not like a single purpose park
like a paintball park. This is a 1.6 -acre event venue.
2
Also, Mr. Shepherd attempts to reject our suggestion that he needs to seek a home occupation permit
by arguing that most of the proposed use would be outside. However, as Hearings Officer Green
observed, at page 20, note 5, of her Decision:
"Mr. Hunnicutt states the applicant does not intend to change the use of the existing
dwelling. However, the dwelling was approved as a farm -related dwelling, and the
applicant has stated the dwelling would be used for weddings, which appears to be a
change of use."
It would also be a change of use for the gazebo to be used as part of this wedding event venue, as
made clear in the County's March 19, 2013, approval of the gazebo which limits its use to residential
accessory use and explicitly bans commercial or event or home occupation use.
Finally, not only has the approved Farm Management Plan for the property not been followed, but
the required occupation of the farm dwelling by someone principally engaged in farm use at a
commercial scale has clearly not occurred.
In response to our request at the hearing that documents from earlier applications be included, the
Planning Department notified us on March 9 that it is necessary for us to specifically submit any
additional documents we wish to be included in the Record. They are attached and include:
A) CU0065
1. 6/5/00 Application -12 pages
2. 7/20/00 Incomplete Letter -4 pages
3. 3/21/01 Modification of Farm Plan -4 pages
4. 10/22/01 Hearings Officer Decision -11 pages
B) AGO 263
1. 10/8/02 Application for Agriculture Building Exemption -4 pages
C) LUP121
1. 5/22/12 LUP Application -7 pages
2. 6/8/12 Incomplete Letter -3 pages
D) Code Enforcement Files
1. 1/3/13 C12-269-73 pages
2. 1/3/13 C12-270--3 pages
E) Gazebo
1. 3/11/13 Statement of Intended Use -3 pages
2. 3/13/13 Correspondence re Gazebo -4 pages
3. 3/19/13 LUCS for Building Permit -9 pages
F) CU1313
1. 11/1/13 LandWatch Letter and Exhibits -12 pages
2. 3/26/14 Fee Waiver Request -4 pages
raw71 :1r �: �!fIV f":: :�� cr, .l]i4 . :_()iI..,rr.u!ii!ies
Very truly yours,
Paul Dewey,
Executive Director
23()Yyki Bond E. 4 bend, OR 97/02
Phone: 541) .647 2.)30
www.centraloregonlonciwotch.org
it And vico.-jrip
3
r
QREGO
7 N A C T I O N
L e g
a
March 23, 2015
Deschutes County Community Development Department
P.O. Box 6005
Bend, OR 97708
ATTN: Will Groves
Re: Shepherd Private Park Application
File Nos. 247 -14 -000 -228 -CU and -229-SP
Dear Mr. Groves:
en t e r
MAR 2 ZC,T5
Dw AVER
On behalf of my client, John Shepherd, this letter serves as a final argument in support of the above -
numbered applications. Please enter it into the record.
For the reasons stated in the staff report, as supported by the evidence in the record and the case law
interpreting what constitutes a "private park" for purposes of ORS 215.283, it is clear that what Mr.
Shepherd proposes is a "private park." As demonstrated during the course of these proceedings, the
activities that will occur over the course of the requested 18 events per year are almost exclusively
recreational in nature.
Efforts by opponents of the application to label the proposed use as a "commercial event center" or
"destination resort" are silly, and are an attempt to portray the use as something big and scary, with
enormous impacts on the surrounding area and farm operations. There will be no new construction as a
result of this application, and no overnight accommodations. There will be 18 events held annually, one
per weekend during the late spring to early fall. Guests will be capped at 250, and most events are
usually much smaller. These uses are exactly the kind you will find in any public park on a weekend
during the summer.
The neighbors have all been notified, and not one neighbor has testified in opposition to the proposal.
Not one. Ms. Gould indicated that if this use was next door to her property, she would move. That
sentiment is not shared by any of Mr. Shepherd's neighbors. Holmes Road has plenty of road capacity,
the noise emitted during the events will have no impact on farm activities as it is virtually imperceptible
from the boundaries of the property, and the record demonstrates that there will be no other impacts
on neighbors or their farming operations. In short, this is a private park use with extremely minor
impacts on the land, much smaller than the other private parks which LUBA has affirmed.
Mailing Address: P.D. 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
Mr. Dewey asserts that it is inappropriate to rely on the County Hearings Officer's determination of what
constitutes a private park, as that determination was written for Mr. Shepherd's previously proposal to
use the entire 216 acre parcel as a private park, which use would occur every day during the summer.
Mr. Dewey is certainly correct that the Board is not bound by the Hearings Officer's decision, but the
Hearings Officer was clear in finding that the wedding receptions themselves constituted recreational
activities that would typically be found in a private park, and that as long as the reception constituted
the majority of the time spent during each event, the fact that there would also be a wedding ceremony
was not enough to convert the weekend events to something other than a private park. That logic
makes sense, and the Board may rely upon it, particularly since the undisputed evidence shows that not
all of the events will include wedding ceremonies.
Mr. Dewey is also correct that the Hearings Officer denied the Shepherd's previous application because
she believed he had failed to demonstrate the impact of the proposed use of the entire 216 acre parcel
on surrounding land. But this is a much smaller proposal, both in amount of use and size of property
used. As such, the impacts will be much more minor, and the evidence demonstrates compliance with
all of the requirements of both state and DCC provisions.
At the hearing and in written comments, there have been arguments concerning the use of the
Shepherd's home during the events. Staff have addressed'these issues in the staff report, and have
recommended conditions of approval which require the applicant to limit use of the home and ensure
that the home meets all building standards. This does not mean that the Shepherd's proposal is for a
home occupation, as Mr. Dewey suggests — structures are found in parks across the country, and are
utilized for park activities. Addressing building code issues through conditions of approval is allowed by
county code, and is appropriate, as it keeps non -zoning decisions out of the land use process.
There has been discussion during the application about the need of Mr. Shepherd to comply with the
farm management plan submitted by Ms. Woods during the farm dwelling approval application in 2000.
Mr. Dewey asserts that Mr. Shepherd must comply with the farm management plan in order to gain
approval for this private park application. That is simply incorrect, for the reasons stated in my previous
correspondence.
Nothing in either state law or the DCC requires an applicant to continue to demonstrate that they
comply with a farm management plan once the dwelling is approved and sited. As Mr. Groves correctly
stated, the plan is a "snapshot" in time, showing that the property will be put into farm use. Once that
is done, there is nothing that imposes an obligation upon the applicant or a subsequent owner to
continue that farm use indefinitely, at the risk of losing their dwelling. It would create havoc on land
use in Oregon and Deschutes County if the owner of a farm dwelling had to meet a certain annual
standard in order to keep the home. Lenders would not lend, and owners would not build.
Mr. Dewey's claim that a property owner who failed to comply with the farm management plan could
simply submit a new application for a non-farm dwelling is, putting it kindly, crazy. Imagine the impact
in Deschutes County alone if code enforcement officers (or better yet, citizens who use the
enforcement authority granted by the DCC to act as private enforcement officers) were sent to comb
through every single application for a farm dwelling in an EFU zone, check the conditions of approval,
and demand evidence from the owner of the dwelling that the farm management plan was being
complied with, under threat of having to submit a new land use application for a non-farm dwelling on a
house that was already there. What if the non-farm dwelling application was denied? Does Mr. Dewey
really believe that people should be forced to tear down their homes for failure to comply with a farm
management plan? That's what he suggests.
The end result of Mr. Dewey's claim regarding compliance with a farm management plan is chaos and
uncertainty, which is precisely why there is no evidence that what he claims is required is actually
correct, and why your staff does not agree and does not monitor compliance with farm management
plans. They simply are not applicable once the dwelling is constructed.
Finally, there has been argument about the location of the private park, and whether it is on the least
suitable location for farm use on the property, as required by DCC 18.16.040. As we argued and as the
staff found, the least suitable requirement of DCC 18.16.040 only applies, by its terms, to uses allowed
by DCC 18.16.030, not uses allowed by DCC 18.16.031. A private park is a use authorized under DCC
18.16.031. Thus, the least suitable location requirement of DCC 18.16.040 is not applicable to this
application. The county may (or may not) wish to amend the DCC to apply the least suitable
requirements to uses authorized by DCC 18.16.031, but you cannot require compliance with a standard
that is clearly not applicable in this case, no matter how much Mr. Dewey wishes you would do so.
Even if you were to require Mr. Shepherd to demonstrate that his proposed park is located on the least
suitable portion of the property for farm use, he had submitted evidence to meet that standard.
In summary, for such a minor application on land that can only be referred to as "farmland" because of
the fiction created by LCDC's Goal 3 definition of agricultural land, Mr. Shepherd's proposed use will
create a positive impact for the county with no downside to anyone, human or animal. The fact that
staff was required to create a staff report exceeding 30 pages for a land use that involves no new
structures, few people, will occur only 18 days a year, and is not opposed by anyone who could possibly
be impacted, however small, is a testament to the need to fix a very broken set of DCC and state land
use laws, as the Bend Bulletin commented in its recent editorial in support of Mr. Shepherd's proposal.
Nevertheless, Mr. Shepherd is bound by current law, and we have met all of the requirements for
approval for his proposed use. We ask the Board to approve the application.
Very Truly Yours,
David J. Hunnicutt
Attorney for Applicant
1