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HomeMy WebLinkAboutShepherd Park Deliberations Documents Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of 4/8/15 _____________________________ DATE: April 2, 2015 FROM: Will Groves CDD (541) 388-6518 TITLE OF AGENDA ITEM: Deliberation on a conditional permit (247-14-000 228-CU and 229-SP) to establish a private park on an EFU-zoned parcel east of Sisters for the purpose of hosting weddings, wedding receptions, special events, and recreational activities. PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: On February 3, 2015 staff issued an administrative approval of a conditional permit (247-14-000 228- CU and 229-SP) to establish a private park on an EFU-zoned parcel east of Sisters for the purpose of hosting weddings, wedding receptions, special events, and recreational activities. By Order 2015-011, dated February 4, 2015, the Board initiated review of this application under DCC 22.28.050 through a de novo hearing. The Board conducted a de novo public hearing on March 2, 2015. The written record closed on March 23, 2015. Staff has developed a decision matrix to help the Board engage with the key decision points in this matter. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Conduct deliberation and give direction to Staff. ATTENDANCE: Will Groves, Laurie Craghead DISTRIBUTION OF DOCUMENTS: Will Groves, Legal, Parties to 247-14-000 228-CU and 229-SP. MEMORANDUM DATE: April 2, 2015 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Deliberation on a conditional permit (247-14-000 228-CU and 229-SP) to establish a private park on an EFU-zoned parcel east of Sisters for the purpose of hosting weddings, wedding receptions, special events, and recreational activities. I. Background On February 3, 2015 staff issued an administrative approval of a conditional permit (247-14-000 228-CU and 229-SP) to establish a private park on an EFU-zoned parcel east of Sisters for the purpose of hosting weddings, wedding receptions, special events, and recreational activities. By Order 2015-011, dated February 4, 2015, the Board of County Commissioners (Board) initiated review of this application under DCC 22.28.050 through a de novo hearing. The Board conducted a de novo public hearing on March 2, 2015. The written record closed on March 23, 2015. Staff has developed a decision matrix to help the Board engage with the key decision points in this matter. II. Key Issues A. Least Suitable Ground Staff: The “least suitable” standard of DCC 18.16.040(A)(3) does not apply to this application under the plain language of the code. If this is an error, it should be fixed as part of a future text amendment. 247-14-000 228-CU and 229-SP Page 2 of 5 Applicant1: Applicant’s biologist identified the park area as the least suitable for agriculture on the property. However, the suitability standard does not apply to 18.16.031 uses (including Private Park). Opponents: The exclusion of suitability requirements under 18.16.031 must be a clerical error. These requirements should apply and failure to apply them is an important policy decision. Staff Recommendation: Adopt Staff’s findings on this issue. B. Should the Agri-Tourism and Commercial Activity provisions preclude Private Park weddings? Staff: The allowance of weddings under Agri-Tourism and Commercial Activity provisions neither precludes nor was intended to preclude Private Park weddings. Applicant: The Agri-Tourism and Commercial Activity provisions do not preclude Private Park weddings. Opponents: The Board could choose to interpret County Code as providing Agri-Tourism and Commercial Activity as the appropriate use categories for weddings in the EFU zone and disallow weddings in private parks. Staff Recommendation: Find that the allowance of wedding under Agri-Tourism and Commercial Activity provisions neither precludes nor was intended to preclude Private Park weddings. C. Will the park force a significant in change on surrounding farm use? Staff: No traffic impacts were identified by the Deschutes County Transportation Planner or Deschutes County Road Department. The administrative decision cited a research paper showing no significant impact to livestock at anticipated noise levels. Applicant: Provided a study on noise impacts to dairy use, showing no significant impact at 80 decibels and below. Opponents: Insufficient analysis on noise impacts on livestock and traffic impacts. Staff Recommendation: Find that the record demonstrates that the park will not force a significant in change on surrounding farm use. D. Can the dwelling be used as part of the Park Facilities? Staff: Staff concluded that the occasional and voluntary use of the dwelling to support events at the park did not preclude or significantly interfere with the use of the dwelling for residential or farm management purposes. The proposed dwelling use is not a “home occupation” as defined under DCC 18.04. 1 Applicant and Opponent positions are Staff attempts to summarize longer arguments. Generally, these are not direct quotes. 247-14-000 228-CU and 229-SP Page 3 of 5 Applicant: Structures are frequently found in parks. Compliance with building and septic codes will ensure the structure is suitable for this use. Opponents: No. Use of the dwelling would require a home occupation permit. This proposal represents a change of use from the approved use as a farm dwelling. Staff Recommendation: Find that the dwelling can be used as part of the park facilities, as proposed. Adopt Staff’s findings on the compatibility of the park use of the dwelling with the residential and farm management use of the dwelling. E. Cinder as an All-Weather Surface: Staff: Based on comments and analysis provided by the Deschutes County Transportation Planner, cinder is not an all-weather surface that complies with the code. The administrative decision required that areas used for standing and maneuvering of vehicles be paved or gravel, but not cinder surfaces. The proposed 95 parking spaces are adequate for the proposed use. Applicant: Cinder is allowed as a surface on County roads (like Buckhorn Road) with much higher traffic. Opponents: The applicant has proposed insufficient parking and an inappropriate parking surface (cinder). Staff Recommendation: Adopt Staff’s findings on this issue. F. Is the Use a Private Park? Staff: Following the Hearings Officer’s analysis in CU-13-13, staff believes that the hallmark of a park is recreational use. The receptions are plainly recreational and the very brief wedding ceremonies are incidental and subordinate to that use. While the facts of the case were slightly different in CU-13-13, staff believes the “recreational” analysis applies equally here. Nothing in the statute requires construing “private park” narrowly under Utsey. Applicant: Concurs with staff. The reception uses are the same one would observe in a typical park on the weekend during the summer. Opponents: No. Oregon Court of Appeals found EFU uses should be construed narrowly. Even if recreation is allowed, this is a commercial event center. The Board should not rely on the Hearings Officer’s findings from CU-13-13, as the facts of that case were different. Staff Recommendation: Adopt Staff’s findings on this issue. Find that nothing in the statute requires construing “private park” narrowly under Utsey v. Coos County. G. Has the Applicant complied with the 2001 Farm Management Plan (FMP)? / Does the 2001 FMP still apply? Staff: The 2001 FMP was required as part of the dwelling approval (CU-00-65). It is unclear, under ONDA v. Harney County, if the resident of the farm dwelling is required to continue to follow the prior FMP or continue to be principally engaged in farming at a commercial scale. The Board need not decide this issue as part of this case. Staff recommends the Board revise the administrative decision to find that: 247-14-000 228-CU and 229-SP Page 4 of 5 1) as part of this case, the Board need not evaluate current compliance with the 2001 FMP or determine if CU-00-65 requires the resident of the farm dwelling to continue to be principally engaged in farming at a commercial scale, and 2) the proposed park use would not preclude or significantly interfere with the farm use described in the 2001 FMP, the current farm use of the property, or the desired future farm operations described by the applicant since the park and these farm uses are spatially and/or temporally separated. As such, farm and park uses are harmonious under 18.124.060 and the site is suitable for both uses under 18.128.015. Alternatively, the Board could adopt the administrative decision that found that there is nothing in the dwelling approval (MA-01-9/CU-00-65) that requires the applicant to continue the prior owner’s agricultural operations or to complete the future activities described in the FMP. The private park use will be separated spatially and/or temporally from both the present and the contemplated future farm use of the property. As such, the private park would not preclude or significantly interfere with the present or contemplated future farm use. Applicant: The farm dwelling approval was a “snapshot” in time. Nothing requires the applicant to continue the activities described in the 2001 FMP or risk losing their dwelling. Opponents: Commercial scale farming is not occurring on the property. Commercial scale farming must be continued by an owner principally engaged in farm use. If this is not occurring, a non-farm dwelling application is a possible remedy. Staff Recommendation: Revise the administrative decision as described in the “Staff” section above. H. Is the park consistent with the 2001 Wildlife Management Plan (WMP)? Staff: The administrative decision found that the private park, as conditioned, would be compatible with either the 2001 WMP or the proposed modification (247-14-000401-MC), if approved. Applicant: Concurs with staff. Opponents: Does not comply with the “very little road usage” provision of the 2001 WMP. Staff Recommendation: Adopt Staff’s findings on this issue. I. Staff recommended changes Amend Condition #9 Staff Recommendation: Based on Board concerns at the hearing, amend Condition #9 as follows for clarity: The private park shall only be open to event participants one weekend day (Saturday or Sunday) per week beginning on May 15 of each year and ending on October 15, not to exceed 18 days per calendar year. Each event shall last no more than 8 hours and conclude by 10 p.m. 247-14-000 228-CU and 229-SP Page 5 of 5 A limit of no more than 250 guests per event shall be enforced by the applicant. Any park use on the property by non-residents shall count as an “event”. Set Up and Clean Up: Staff: The Board expressed concern regarding the potential for the limited duration events to extend into several days when set-up and take down are included. The applicant acknowledged that that there would be day-before and day-after set-up and take down associated with events. Analysis of compatibility of the proposed park with farm use of the property, residential use of the property, and wildlife impacts assumed the events to be limited duration. To ensure that the all event activities are of limited duration, Staff recommends copying the Agri-Tourism requirements. Staff Recommendation: Add a condition requiring: “Set-up and take down of all temporary structures and facilities shall occur up to one business day prior to the events or activities and one business day after the events between 7:00 a.m. and 10:00 p.m.” Add a condition regarding DCC 8.08, Noise Control. Staff Recommendation: Based on Board concerns at the hearing, add the following condition: Nothing in this decision waives compliance with or acts as a variance to the requirements of DCC 8.08, Noise Control. Amend Condition #2 Staff Recommendation: Based on Board concerns at the hearing, amend Condition #2 as follows for clarity: The applicant shall obtain all necessary permits from the Deschutes County Environmental Soils, Environmental Heath, and Building Safety Divisions, prior to initiation of the use. Specifically, the applicant shall provide written documentation from Deschutes County Environmental Soils, Environmental Heath, and Building Safety Divisions to Deschutes County Planning Division that all park structures and facilities are adequate for the proposed park use and comply with all applicable regulations, prior to initiation of the use. Attachments 1. Administrative approval of 247-14-000 228-CU and 229-SP 2. Arguments submitted by parties during the post hearing process. 3. Decision matrix. 1 SHEPHERD PARK DECISION MATRIX The Appellant’s testimony identified several issue areas in the Staff Decision. These are summarized in the matrix below. Issue Information in Record Board Options Staff Comment 1. Least Suitable Ground Staff: The “least suitable” standard of DCC 18.16.040(A)(3) does not apply to this application. Applicant: Applicant’s biologist identified the park area as the least suitable for agriculture on the property. The suitability standard does not apply. Opponents: The exclusion of suitability requirements under 18.16.031 must be a clerical error. These requirements should apply. a. Adopt staff decision findings, with or without modification. b. Find that the suitability requirements apply under 18.16.031. Staff Recommendation: Adopt Staff’s findings on this issue. Sample motion for BOCC: “Move that the Board adopt the staff’s findings.” 2. Do Agri-Tourism and Commercial Activity provisions preclude Private Park weddings? Staff: The allowance of wedding under Agri-Tourism and Commercial Activity provisions neither precludes nor was intended to preclude Private Park weddings. Applicant: No. Opponents: The Board could choose to interpret County Code as providing Agri-Tourism and Commercial Activity as the appropriate use categories for wedding in the EFU zone and disallow wedding in private parks. a. Adopt staff decision findings, with or without modification. b. Restrict EFU weddings to Agri- Tourism and Commercial Activity permits. Staff Recommendation: Adopt Staff’s findings on this issue. Sample motion for BOCC: “Move that the Board adopt the staff’s findings.” 3. Will the park force a significant in change on surrounding farm use? Staff: No traffic impacts were identified. Record shows no significant impact to livestock at anticipated noise levels. Applicant: Provided a study on noise impacts to dairy use, showing no significant impact at 80 decibels and below. Opponents: Insufficient analysis on noise impacts on livestock and traffic impacts. a. Adopt staff decision findings, with or without modification. b. Find that the record is insufficient on noise and traffic impacts to surrounding farm use. Staff Recommendation: Find that the record demonstrates that the park will not force a significant in change on surrounding farm use. Sample motion for BOCC: “Move that the Board find that the record demonstrates that the park will not force a significant in change on surrounding farm use.” 4. Can the dwelling be used as part of the Park Facilities? Staff: The occasional and voluntary use of the dwelling to support events at the park did not preclude or interfere with the use of the dwelling for residential or farm management purposes. Applicant: Structures are frequently found in parks. Compliance with building and septic codes will ensure the structure is suitable for this use. Opponents: No. Use of the dwelling would require a home occupation permit. This proposal represents a change of use from the approved use as a farm dwelling. a. Adopt staff decision findings, with or without modification. b. Find that the dwelling may not be uses as a part of the private park. Staff Recommendation: Find that the dwelling can be used as part of the park facilities, as proposed. Adopt Staff’s findings on the compatibility of the park use of the dwelling with the residential and farm management use of the dwelling. Sample motion for BOCC: “Move that the Board adopt the staff’s findings and also find that the dwelling may be used as part of the private park, as proposed so long as necessary permits from the Deschutes County Environmental Soils, Environmental Heath, and Building Safety Divisions are obtained prior to initiation of the use..” 2 Issue Information in Record Board Options Staff Comment 5. Cinder as an All- Weather Surface Staff: Cinder is not an all-weather surface that complies with the code. The proposed 95 parking spaces are adequate for the proposed use. Applicant: Cinder is allowed as a surface on County roads (like Buckhorn Road) with much higher traffic. Appellant: The applicant has proposed insufficient parking and an inappropriate parking surface (cinder). a. Adopt staff decision findings, with or without modification. b. Find that cinder is an all-weather surface. Staff Recommendation: Adopt Staff’s findings on this issue. Sample motion for BOCC: “Move that the Board adopt the staff’s findings.” Is the Use a Private Park? Staff: Following the Hearings Officer’s Analysis in CU-13-13, staff believes that the hallmark of a park is recreational use. The receptions are plainly recreational and the very brief wedding ceremonies are incidental and subordinate to that use. As stated in Utsey, nothing in the statute requires construing “private park” narrowly. Applicant: Concurs with staff. The reception uses are the same one would observe in a typical park on the weekend during the summer. Opponents: No. Oregon Court of Appeals found EFU uses should be construed narrowly. Even if recreation is allowed, this is a commercial event center. The findings from CU-13-13, do not apply as the facts of that case were different. a. Adopt staff decision findings, with or without modification. b. Find that the proposed use is not a private park. Staff Recommendation: Adopt Staff’s findings on this issue. Find that, per Utsey v. Coos County, nothing in the statute requires construing “private park” narrowly. Sample motion for BOCC: “Move that the Board adopt the staff’s findings and find that nothing in the statute requires construing “private park” narrowly under Utsey v. Coos County.” 6. Has the Applicant complied with the 2001 FMP? / Does the 2001 FMP still apply? Staff: The 2001 FMP was required as part of the dwelling approval (CU-00-65). It is unclear, under ONDA v. Harney County, if the resident of the farm dwelling is required to continue to follow the prior FMP or continue to be principally engaged in farming at a commercial scale. The Board need not decide this issue as part of this case. Staff recommends the Board revise the administrative decision; Applicant: Nothing requires the applicant to continue the activities described in the 2001 FMP or risk losing their dwelling. Opponents: Commercial scale farming is not occurring on the property. Commercial scale farming must be continued by an owner principally engaged in farm use. If this is not occurring, a non -farm dwelling application is a possible remedy. a. Adopt staff decision findings, with or without modification. b. Find that demonstrated adherence to the approved FMP is required as part of this application. Staff Recommendation: Staff recommends the Board revise the administrative decision. Sample motion for BOCC: “Move that the Board find that: 1) as part of this case, the Board need not evaluate current compliance with the 2001 FMP or determine if CU-00-65 requires the resident of the farm dwelling to continue to be principally engaged in farming at a commercial scale, and 2) the proposed park use would not preclude or significantly interfere with the farm use described in the 2001 FMP, the current farm use of the property, or the desired future farm operations described by the applicant since the park and these farm uses are spatially and/or temporally separated. As such, farm and park uses are harmonious under 18.124.060 and the site is suitable for both uses under 18.128.015. 7. Is the park consistent with the 2001 Wildlife Management Plan (WMP)? Staff: The administrative decision found that the private park, as conditioned, would be compatible with either the 2001 WMP or the proposed modification (247-14-000401-MC), if approved. Applicant: Concurs with staff. Opponents: Does not comply with the “very little road usage” provision of the 2001 WMP. a. Adopt staff decision findings, with or without modification. b. Find that the park in snot compatible with the 2001 WMP. Staff Recommendation: Adopt Staff’s findings on this issue. Sample motion for BOCC: “Move that the Board adopt the staff’s findings.” 3 Issue Information in Record Board Options Staff Comment 8. Amend Condition #9 Staff: Based on Board concerns at the hearing, amend Condition #9. a. Amend Condition #9 b. Decline the amendment. Staff Recommendation: Staff recommends the Board revise the administrative decision. Sample motion for BOCC: “Move that the Board amend condition #9 to specify that a “weekend day” is Saturday or Sunday.” 9. Set Up and Clean Up Staff: The Board expressed concern regarding the potential for the limited duration events to extend into several days when set -up and take down are included. Staff recommends copying the Agri- Tourism requirements. a. Apply Agri- Tourism provisions. b. Decline the new condition of approval. Staff Recommendation: Staff recommends the Board revise the administrative decision. Sample motion for BOCC: “Move that the Board finds that analysis of compatibility of the proposed park with farm use of the property, residential use of the property, and wildlife impacts require the events to be of limited duration. To ensure that the all event activities are of limited duration, the Board adds the following condition of approval: Set-up and take down of all temporary structures and facilities shall occur up to one business day prior to the events or activities and one business day after the events between 7:00 a.m. and 10:00 p.m.” 10. DCC 8.08, Noise Control. Staff: Based on Board concerns at the hearing, add the following condition: Nothing in this decision waives compliance with or acts as a variance to the requirements of DCC 8.08, Noise Control. a. Apply the condition of approval. b. Decline the new condition of approval. Staff Recommendation: Staff recommends the Board revise the administrative decision. Sample motion for BOCC: “Move that the Board adds the following condition of approval: Nothing in this decision waives compliance with or acts as a variance to the requirements of DCC 8.08, Noise Control.” 11. Amend Condition #2 Staff Recommendation: Based on Board concerns at the hearing, amend Condition #2 as follows for clarity. a. Amend Condition #2 b. Decline the amendment. Staff Recommendation: Staff recommends the Board revise the administrative decision. Sample motion for BOCC: “Move that the Board amend condition #2 as follows: The applicant shall obtain all necessary permits from the Deschutes County Environmental Soils, Environmental Heath, and Building Safety Divisions, prior to initiation of the use. Specifically, the applicant shall provide written documentation from Deschutes County Environmental Soils, Environmental Heath, and Building Safety Divisions to Deschutes County Planning Division that all park structures and facilities are adequate for the proposed park use and comply with all applicable regulations, prior to initiation of the use.”