AGENDA. Central Oregon Management Co., LLC / Jeremy Klettke Dawn Road La Pine, Oregon. Chris Schmoyer, Associate Planner

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1 AGENDA DESCHUTES COUNTY HEARINGS OFFICER OCTOBER 24, 2017, 6:00 PM BARNES AND SAWYER ROOMS DESCHUTES SERVICES CENTER 1300 NW WALL STREET BEND, OR, I. Hearings Officer Hearing FILE NUMBERS: Ad OWNER/APPLICANT: Central Oregon Management Co., LLC / Jeremy Klettke REQUEST: The Applicant Requests Approval to Allow Indoor Marijuana Production in an Existing 5,616 Square Foot Structure on the Approximate 392 Acre Subject Property Zoned Exclusive Farm Use LOCATION: Dawn Road La Pine, Oregon STAFF CONTACT: Chris Schmoyer, Associate Planner Additional meeting dates available at Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call the ADA Coordinator at (541)

2 1.1 Deschutes County Hearings Officer Meeting: 10/24/17 06:00 PM PO Box 6005 Bend, OR SCHEDULED Department: Community Development Category: Public Hearing Prepared By: Peter Gutowsky Initiator: Chris Schmoyer Sponsors: HEARINGS OFFICER HEARING (ID # 1621) DOC ID: 1621 The Applicant Requests Approval to Allow Indoor Marijuana Production in an Existing 5,616 Square Foot Structure on the Approximate 392 Acre Subject Property Zoned Exclusive Farm Use Updated: 10/19/2017 4:39 PM by Peter Gutowsky Page 1 Packet Pg. 2

3 STAFF REPORT FILE NUMBER: OWNER: AD Central Oregon Management Co., LLC APPLICANT: APPLICANT S ATTORNEY: PROPOSAL: Jeremy Klettke Emerge Law Group Corinne Celko, Attorney An application for an Administrative Determination to establish a recreational marijuana production facility (grow) within the Exclusive Farm Use (EFU) zone. STAFF REVIEWER: Chris Schmoyer, Associate Planner DOCUMENTS: I. APPLICABLE CRITERIA Can be viewed and downloaded from: or Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zones Chapter 18.88, Wildlife Area Combining Zone Chapter , Supplementary Provisions Section , Marijuana Production, Processing, and Retailing Title 22, Deschutes County Development Procedures Ordinance II. BASIC FINDINGS A. Location: The subject property has an assigned address of Dawn Road, La Pine and is further identified as: Tax Lot 200 on County Assessor s Map C Tax Lot 100 on County Assessor s Map A: Tax Lot 100 on County Assessor s Map D; Packet Pg. 3

4 Tax Lot 100 on County Assessor s Map B 1 ; and Tax Lot 200 on County Assessor s Map C. B. Lot of Record: The subject property is a legal Lot of Record as determined in Land Use File No. LL C. Zoning: The subject property is zoned Exclusive Farm Use La Pine (EFU-LA) and is within the Wildlife Area Combining Zone (Deer Migration Range). D. Proposal: The applicant requests approval to allow indoor marijuana production in an existing 5,616 square foot structure on the approximate 392 acre subject property zoned Exclusive Farm Use (EFU-LA). The existing structure for the proposed use is sited on tax lot 100, B of the subject property. The applicant submitted the application form, burden of proof statement, plot plan and other related materials which are incorporated by reference herein. E. Site Description: The subject property is approximately 392 acres in size and consists of five (5) tax lots. The property contains a dwelling, a detached garage, a barn, a shop and two small accessory structures. The property has a moderate cover of lodgepole pine trees except for the eastern half of tax lot 100, B which consists of an open meadow containing a couple of mapped wetlands. The property fronts on Dawn Road which terminates at the subject property. 1 Based on submitted plans, the existing building proposed for the use is located on Tax Lot 100 on County Assessor s Map B north of the terminus of Dawn Road AD Staff Report Page 2 of 37 Packet Pg. 4

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6 F. Land Use History: The subject property has been involved in three previous lot line adjustment decision approvals: LL-14-11, LL and LL G. Public Agency Comments: The Planning Division mailed a notice of application and notice of the public hearing received comments from the following agencies: Deschutes County Building Division: Randy Scheid, Building Official, provided the following comments: NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Deschutes County Assessor: Properties D000100, C and B are in farm deferral AD Staff Report Page 4 of 37 Packet Pg. 6

7 Deschutes County Road Department: This parcel is accessed by Dawn Road which is a County Maintained Facility. Deschutes County Senior Transportation Planner, Peter Russell: I have reviewed the transmittal materials for AD for a marijuana production (growing) operation in the Exclusive Farm Use (EFU) zone at Dawn Road, aka C, Tax Lot 100. The applicant has stated the indoor grow will use an existing structure. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. Warehouse generates daily trips at a rate of 3.56 trips per 1,000 square feet. The existing structure is 5,616 square feet and will be used for cannabis production and support. The resulting trip rate would be 20 daily trips (3.56 X 5.616). Deschutes County Code (DCC) at (C)(3)(a) states no further traffic analysis is needed if there are 50 or less new weekday trips generated from the use. The proposed land use will not meet this minimum threshold for additional traffic analysis. Board Resolution sets a (SDC rate of $3,852 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which would result in 1.8 p.m. peak hour trips (0.32 X 5.616). Thus the applicable SDC would be $6,934 (1.8 X $3,852). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. Midstate Electric Co-op, Inc.: Crystal DeLuca provided the following letter and load calculation sheet in an to staff received August 3, 2017: AD Staff Report Page 5 of 37 Packet Pg. 7

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9 La Pine Rural Fire Protection District: Mike Supkis, La Pine Rural Fire Protection District, provided the following comments: The La Pine Rural Fire Protection District has received the County Planning Division s request for comment on an indoor marijuana production in an existing structure within an exclusive Farm Use (EFU) Zone at Dawn Road, tax lots 100 and 200 on maps B and C; A; C AD. The proposal property (listed as multiple tax lots) is in an rural farm - residential area with very limited infrastructure. I have attached the fire district s development check list guide and forwarding the fire code review to the local Oregon State Fire Marshal s office (who is our authority having jurisdiction for fire codes) for comment on the access and water supply that may be required by the Oregon Fire Code, if permitted. Landscape management: The property is in a very high Wildland Fire Hazard Area. The District requests that any landscape planning use the Oregon Forestland Urban Interface Fire Protection Act standards OAR , as well as FireWise and FireFree landscaping best practices criteria to design and maintain a safe landscape for this environment AD Staff Report Page 7 of 37 Packet Pg. 9

10 Additionally, Mr. Supkis included an attachment to his comment to staff which states (excerpted): La Pine Fire District Development Guidelines LA PINE FIRE DISTRICT DEVELOPMENT STANDARDS CHECKLIST The following are the most common fire safety design standards to be addressed when planning a new development per the 2014 Oregon Fire Code (OFC). The La Pine Fire District also uses the NFPA standards as a guide for determining best practices for fire safety. Building life safety and code considerations (such as exits, construction, and sprinklers) are addressed under building plan review by the Deschutes County Building Official. The Oregon State Fire Marshal s Office (fire code authority) and the La Pine Fire District reviews complete plans for following items. Fire Flow & Fire Hydrants 1. An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. 2. Fire flow requirements for new developments shall be based on the OFC Appendix B. Minimum OFC fire flows range from 1500 gpm for commercial developments up to 3000 gpm depending on type of construction and building size. Exception: The required fire flow may be reduced by up to 75% if the building is provided with an approved sprinkler system, but in no case shall the resulting fire-flow be less than 1500 GPM at 20 Pounds per square inch residual. 3. Fire hydrant number and distribution shall not be less than listed in OFC Appendix C. Maximum distance to a fire hydrant shall not be more than 250' from any building by the fire apparatus travel route, with multiple hydrants set at maximum average distance of 500' between hydrants (dependent upon the required fire flow for the building). Exception: Outside of water service districts, the required fire flow may be provided by using alternate sources as defined in NFPA Standard Water Supplies for Rural Fire Fighting. 4. Hydrant locations shall be placed along public streets, private fire lanes, and parking lots, with preference to street corner locations and driveway entrances for ease of locating, access, and to eliminate parking conflicts. Hydrants must be placed on development side of street on four lane and/or US highways (i.e. Hwy 97). 5. Fire hydrant installation and hardware need to meet local water utilities standards and American Water Works Standards, be equipped with two 2.5 and one 4.5 NST hose connections, and have snow flags attached. 6. When hydrants are subject to vehicle damage placement (i.e. in parking lots with no other protection) yellow steel and concrete bollards are required to protect hydrants from damage (placed at least 3 from hydrant). In addition signs to identify hydrant location and to deter blocking by parking may also be required when necessary. Public Roads and Access (any road serving more than three lots or a commercial property) 7. Public road shall allow fire department apparatus access year round while maintaining two-way traffic. Access must be complete prior to major building construction. Roads shall be maintained year round by a road authority (state, county, district, service area, or property owner association) AD Staff Report Page 8 of 37 Packet Pg. 10

11 8. Minimum road standards for fire department access: 20 all weather surface (paved or DOT spec gravel) - with no parking, If parking is to be allowed - road width will need to be increased to accommodate; base suitable to support 66,000# GVW fire apparatus (gravel base not less than 6 ); inside turn radius of not less than 40 ; grade not steeper than 10%; overhead clearance of 13 6 ; minimum gate width 20. (Note the local road district, county and/or state DOT may require greater or additional standards) 9. All public roads need to terminate at an intersection with another public road or a have cul-de-sac with a minimum 50 clear radius constructed to the above standards. 10. All public accessed roads shall have road identification signs located at each intersection per DOT standards. La Pine Fire District Development Guidelines Fire Lanes, Driveways and Parking Lots 11. Private fire access roads/lanes/driveways shall be required as to allow fire department apparatus access to any facility or building to within 150 feet of any portion of an exterior wall of the first story. Access shall be all weather construction (paved or DOT spec gravel surface) and able to support apparatus (gravel base not less than 5 ), driving surface not less than 16 wide, inside turn radius minimum 30, grade not steeper than 12%, height clearance of Exceptions: if building is fully sprinklered apparatus access lanes can be to within 200 feet. A driving surface not less than 12 wide is allowed for a single residence driveway. 12. All private fire access roads and or parking lots shall be required to have a fire apparatus turnaround and or a cul-de-sac when in excess of 150 feet in length. 13. A clear space of 5 to each side and to the rear of, and complete fire apparatus access to the front of, shall be maintained to all fire hydrants and building sprinkler connections. No obstructions (including vehicle parking spaces) shall be placed in front of any fire hydrant or fire sprinkler connection. 14. Gates are acceptable on private drives, fire lanes, and parking lots. Width must be able to accommodate fire department apparatus and sized to driving surface (minimum 16 or 12 wide respectively) and lock/chain must be accessible to department bolt cutters and/or a department approved key lock box provided at installation. Property Address 15. Approved address numbers shall be placed on all buildings as to be plainly visible and legible from the center of the public street fronting the property. District suggests at the upper building corners facing the street(s) of large commercial buildings and on entrance signs. Commercial property address and numbers shall be a minimum of 6 in size and contrast the background in low light. Residential address should be a minimum of 4 and clearly visible from the street and/or at the driveway entrance. Residential address signs are available at La Pine Fire District Administration. Defensible Space, Forested Areas (all of the La Pine/Sunriver area) 16. Buildings in forested and wildland fire areas need to have a 10 fire break around the structure, then feet of non or low combustible landscaping (i.e. green, irrigated, with no dead vegetative material and/or pine needle accumulations), then no understory brush and tree limbs pruned up to 8 (park like landscaping) out to a 100 radius, and general overstory thinning out to 200. Smoke/CO Detectors & Fire Extinguishers 17. Every property in which person(s) sleep shall have at least one working smoke detector, and at least one CO detector located between the sleeping area and living areas per Oregon State Law. 18. Commercial properties shall have a minimum of one (1), or more when required, 2 A10BC fire extinguisher(s) within 75' travel distance from any point in the structure, to be installed in a visible and accessible location (recommended along exit pathways or by an exit), and maintained at least yearly by a certified fire extinguisher service. Special AD Staff Report Page 9 of 37 Packet Pg. 11

12 facilities such as fueling stations, kitchens, repair shops, and manufacturing may require additional fire extinguishers. Dumpster, Recycle Storage 19. Dumpster and recycle material containers over 1.5 cu ft. shall be placed outside of buildings and be at least 10 feet from of a combustible wall, opening or overhanging roof eaves. District recommends a separate fenced area away from main building. Exception: Inside refuge area permitted in sprinklered area with approved fire separation from main building and designed for this use. Fire Sprinklers, Extract Processing, and Hood Systems 20. Fixed and automatic fire systems are strongly recommended but shall be installed when required per the OFC. Plans for these systems are to be submitted and reviewed by the Deschutes County Building Official. 21. Extract processing systems shall be closed loop systems designed under ANSI, UL and/or ASTM standards in a designated fully enclosed room conforming to the structural, mechanical and electrical codes for such hazard. Plans to be submitted and reviewed by the Deschutes County Building Official and the Oregon State Fire Marshal. 22. Approved fire suppression systems for protection of commercial type food heating equipment shall be installed when required per the OFC. Commercial plans to be reviewed by the Deschutes County Building Official. Division of State Lands (DSL): Heather Howard with the agency provided the following comments in an to staff received March 1, 2017: Attached to Ms. Howard s was the following DSL form: AD Staff Report Page 10 of 37 Packet Pg. 12

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14 Deschutes County Sheriff: Sheriff L. Shane Nelson provided the following comment: H. The following agencies either had no comment or did not respond to the notice: Deschutes County Environmental Soils Division, Oregon Liquor Control Commission, Oregon Dept. of Fish & Wildlife, Deputy State Fire Marshal, Department of Environmental Quality, Bend, La Pine School District, and Watermaster - District 11. I. Public Comments: The Planning Division mailed a written notice of this action to property owners within 750 feet of the subject property on March 15, Notice of the Public Hearing was mailed to property owners within 750 feet of the subject property on September 15, The following concerns were expressed in comments which staff received from the public and are not listed in order of priority of significance. In summary, staff has attempted to capture most impacts, comments, requests, and concerns identified by the public in written comments received prior to the completion of this Staff Report: 1. Increase in traffic and wear and tear on local roads. 2. Attraction of undesirable people and increase in criminal activity. 2 Fourteen mailed envelopes were returned from the United States Postal Service labeled Return to Sender, Insufficient Address, unable to forward AD Staff Report Page 12 of 37 Packet Pg. 14

15 3. Decreased property values in the area. 4. Lower moral values of children and grandchildren. 5. Negative impact to wildlife habitat in the area. 6. Remoteness of proposed grow poses a problem for Law Enforcement. 7. Increase in DUIIs. 8. Marijuana is federally illegal 9. Increase in theft and crime in immediate area and the City of La Pine. 10. Increase in fire hazard risk and the local fire department s inability to respond in time to save homes. 11. Not conducive to preservation of farm land. 12. Result in an increase deaths and illness due to overdose or ingestion of marijuana. 13. Water rights related concerns and issues. 14. Contamination of ground water due to improper disposal of chemicals used (pesticides and fertilizer) onto the porous soils of the subject property and the detrimental effects on water quality and quantity on the domestic water supply (well water). 15. Incompatibility with surrounding residential neighborhoods; Use is more suitable to an industrial park. 16. Absence of a traffic management plan and farm management plan. 17. The applicant and property owner don t live on the property so won t experience the negative impacts. 18. Dust, air pollution and noise resulting from the grow operation. 19. The County s notice area of 750 feet from subject property is inadequate. 20. Health impacts from living near a marijuana grow. 21. Traffic collisions involving intoxicated drivers. 22. Children who live or visit relatives in the area. 23. Too many marijuana grows already in the area. 24. Neighbors do not want to live next to a marijuana farm Staff Comment: Staff genuinely respects the comments submitted by the public, however, the proposed marijuana production application is subject exclusively to the applicable review criteria under Deschutes County Code (DCC) Section (B). Comments regarding matters or concerns that are not specific to applicable review criteria are outside of the hearings officer s scope of review. A letter from Marcia Peck and Mike Long received April 10, 2017 includes an unsigned letter from the Klettke family responding to their concerns and is provided below: AD Staff Report Page 13 of 37 Packet Pg. 15

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17 J. Notice Requirement: The applicant submitted a Land Use Action Sign Affidavit, dated February 15, 2017, indicating the applicant posted notice of the land use action on that same date. Additionally, Notice of the Public Hearing was published in the Bend Bulletin Newspaper on September 17, K. Review Period: This application was submitted on February 6, Because additional information was missing from the application, the application was deemed incomplete on March 7, The applicant submitted the requested information and the application was accepted and deemed complete on August 4, The 150th day on which the county must take final action on this application is January 1, III. CONCLUSIONARY FINDINGS A. Chapter 18.16, Exclusive Farm Use Zones 1. Section Use Permitted Outright. The following uses and their accessory uses are permitted outright: S. Marijuana production, subject to the provisions of DCC STAFF RESPONSE: The proposed marijuana production facility is permitted outright in the EFU zone, subject to the provisions of DCC , which are reviewed below 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 STAFF RESPONSE: Staff believes this standard applies to proposed building or structures. However, the applicant indicates that the height of the existing structure proposed for the use is approximately 29 feet and 9 inches. 3. Section 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 AD Staff Report Page 15 of 37 Packet Pg. 17

18 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 shall be met. STAFF RESPONSE: The structure proposed for the use is existing and no additions are proposed with this application. B. Chapter , Supplementary Provisions 1. Section , Marijuana Production, Processing, and Retailing. A. Applicability. Section applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, TuI, RI, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, TuI, RC, RI, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. STAFF RESPONSE: The applicant has proposed Recreational Marijuana Production in the EFU zone. This section applies. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. STAFF RESPONSE: The subject property is a legal lot of record and is approximately 392 acres in size. This standard is met. 2. Indoor Production and Processing. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. STAFF RESPONSE: The subject property is within the EFU zone. The applicant has proposed that all production will occur within an existing enclosed structure, complying with these criteria. To ensure compliance with the requirements of this section, Staff suggests inclusion of a condition of approval prohibiting marijuana production in any outdoor area if the application is approved. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: AD Staff Report Page 16 of 37 Packet Pg. 18

19 a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. c. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. STAFF RESPONSE: The subject property is greater than 60 acres in size, therefore, the maximum mature plant canopy size allowed is 40,000 square feet. STAFF RESPONSE: does not apply. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. The subject property is not located in the MUA-10 Zone. This criterion 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. STAFF RESPONSE: The applicant s supplemental burden of proof statement provides: There will be absolutely no more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site on the proposed parcel: Dawn Rd. La pine, OR This criterion should be included as a condition of approval if the application is approved. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to AD Staff Report Page 17 of 37 Packet Pg. 19

20 submission of the marijuana production or processing application to Deschutes County. c. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. STAFF RESPONSE: The applicant s supplemental burden of proof statement indicates that the proposed grow operation would be a minimum of 603 feet or farther from the closest property line and 975 feet to the closes off-site dwelling. Based on staff s review of the surrounding properties using Deschutes County DIAL GIS (Geographic Information System) mapping, staff finds that offsite dwellings appear to be located well over the 100 feet from any property line and well over 300 feet from the closest off-site dwelling. The closest off-site dwelling appears to be on tax lot 200, B (16400 Dawn Road, La Pine) and sited an estimated 800 feet southwest from the proposed grow facility. Tax Lot 200 is also the closest property to the proposed grow facility at approximately 635 feet. It appears that these setbacks are met. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes , et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS (1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. b. For purposes of DCC (B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC (B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC (B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC (B)(7) if the use is: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established AD Staff Report Page 18 of 37 Packet Pg. 20

21 STAFF RESPONSE: The applicant s supplemental burden of proof statement provides the following response to these criteria: According to staff s review of Deschutes County records, and the State of Oregon Navigator site 3, none of the properties within 1,000 feet of the subject property appear to be in a use described in this section or are subject to subsection (c). These criteria appear to be met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. STAFF RESPONSE: The applicant s supplemental burden of proof statement indicates that a maximum canopy size of 1,760 square feet is proposed, therefore this criterion does not apply. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not 3 Source: AD Staff Report Page 19 of 37 Packet Pg. 21

22 be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light-emitting part. c. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. STAFF RESPONSE: The applicant s supplemental burden of proof statement provides the following response to these criteria: Staff finds it s feasible that the applicant can meet the above criteria and suggests the Hearings Officer impose a condition of approval to ensure compliance with the requirements of this section if the land use permit is approved. 10. Odor. As used in DCC (B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume AD Staff Report Page 20 of 37 Packet Pg. 22

23 ii. of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. STAFF RESPONSE: The applicant s supplemental burden of proof statement provides the following response to these criteria: The applicant submitted a narrative report stamped by mechanical engineer Adam E. Mangrich PE, CCP, CPMP describing how the system will meet the requirements of this section as provided below: AD Staff Report Page 21 of 37 Packet Pg. 23

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28 Staff confirmed Mr. Mangrich s certificate number on the Oregon State Board of Examiners for Engineering and Land Surveying s website, which lists Mr. Mangrich license information and identifies him as a mechanical engineer 4. Cert. No Name Address City State/Nation Zip Branch Status Expires 81059PE Mangrich, Adam E. Eugene OR, United States ME Active 12/31/2018 Staff believes these criteria can be met and suggests the Hearings Officer impose a condition of approval to ensure compliance with the requirements of this section if the land use permit is approved. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 db(a) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS , Right to Farm. Intermittent noise for accepted farming practices is permitted. STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement provides the following: The applicant submitted a letter from the licensed mechanical engineer referenced above, which includes a statement that the proposal will be in compliance with this section. An excerpt of Mr. Mangrich s memo is provided below: 4 Source: AD Staff Report Page 26 of 37 Packet Pg. 28

29 Based on the Mr. Mangrich s memo, it appears that the sound level will not be above 30 dba, as measured from any property line, between 10pm and 7am. Staff believes that the submitted analysis by Mr. Mangrich demonstrates that these criteria can be met and suggests that the AD Staff Report Page 27 of 37 Packet Pg. 29

30 Hearing s Officer add a condition to ensure compliance with the noise requirements of this section if the land use permit is approved. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non-rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. c. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement provides the following: The subject property is not in the Landscape Management Combining Zone. Staff is uncertain whether OLCC would require fencing for the proposal. However, staff believes these criteria can be met and suggests the Hearings Officer impose a condition of approval to ensure compliance with the requirements of this section if the land use permit is approved AD Staff Report Page 28 of 37 Packet Pg. 30

31 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or c. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement provides the following: The applicant s supplemental burden of proof statement includes a letter from Aspen Lakes Utility Co., LLC provided below: AD Staff Report Page 29 of 37 Packet Pg. 31

32 Opposition comments expressed concerns regarding the use of well water in relation to the proposal and if it would reduce the amount of water supplying neighbors domestic wells and whether run-off from the use would contaminate the aquifer adversely affecting the domestic wells in the area AD Staff Report Page 30 of 37 Packet Pg. 32

33 Staff does not believe that the applicant has met its burden of demonstrating compliance with criterion (13)(a)of this section as the application does not include a copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department (OWRD). Staff does not believe that the applicant has met its burden of demonstrating compliance with criterion (13) (c) of this section as the applicant has not provided proof from OWRD that the water to be used is from a source that does not require a water right. Staff believes that the applicant has met its burden of demonstrating compliance with criterion (13)(b) of this section as the letter from Aspen Lakes Utility Co., LLC provides for a means of water supply (water trucks) for the proposed marijuana grow operation for as long as necessary. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. STAFF RESPONSE: No processing is proposed, thus, this section does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement provides the following: The applicant submitted a utility verification letter from Midstate Electric Cooperative Co., LLC provided below: AD Staff Report Page 31 of 37 Packet Pg. 33

34 AD Staff Report Page 32 of 37 Packet Pg. 34

35 The utility verification provided by the applicant appears to satisfy this criterion. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement provides the following: Staff believes this criterion can be met and suggests the Hearings Officer impose a condition of approval to ensure compliance with the requirements of this section if the land use permit is approved AD Staff Report Page 33 of 37 Packet Pg. 35

36 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement states: Staff believes this criterion can be met and suggests the Hearings Officer impose a condition of approval to ensure compliance with the requirements of this section if the land use permit is approved. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or c. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. STAFF RESPONSE: The subject property is not in the MUA-10 zone. This section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC (B)(9) by September 8, 2016 and with the provisions of DCC (B)(10-12, 16, 17) by December 8, STAFF RESPONSE: In response to this criterion, the applicant s supplemental burden of proof statement indicates: The proposal is not for a medical marijuana grow site. Criteria 19 does not apply. Staff believes that this section applies existing medical marijuana grow facilities that were lawfully established prior to June 8, Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; AD Staff Report Page 34 of 37 Packet Pg. 36

37 ii. A farm stand, as described in ORS (1)(r) or (1)(o), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS (2)(c) or (2)(a), carried on in conjunction a marijuana crop; and iv. Agri-tourism and other commercial events and activities in conjunction with a marijuana crop. c. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. STAFF RESPONSE: None of the prohibited uses have been proposed by the applicant. Staff believes these criteria can be met and suggests that if this permit is approved, the Hearings Officer impose a condition of approval prohibiting such uses on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC (C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes AD Staff Report Page 35 of 37 Packet Pg. 37

38 County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS (17). STAFF RESPONSE: Compliance with the annual reporting obligation of this section is mandatory. The applicant has agreed to file the annual report each year in a timely manner. Staff suggests the Hearings Officer impose a condition of approval to ensure compliance with the requirements of this section if the land use permit is approved. C. Chapter 18.88, Wildlife Area Combining Zone 1. Section , Purpose The purpose of the Wildlife Area Combining Zone is to conserve important wildlife areas in Deschutes County; to protect an important environmental, social and economic element of the area; and to permit development compatible with the protection of the wildlife resource , Application of Provisions The provisions of DCC shall apply to all areas identified in the Comprehensive Plan as a winter deer range, significant elk habitat, antelope range or deer migration corridor. Unincorporated communities are exempt from the provisions of DCC , Uses Permitted Outright In a zone with which the WA Zone is combined, the uses permitted outright shall be those permitted outright by the underlying zone. STAFF RESPONSE: Marijuana production is a use permitted outright in the Exclusive Farm Use Zone, therefore, the applicant s proposal is allowed outright in the WA Zone. 4. Section , Fence Standards The following fencing provisions shall apply as a condition of approval for any new fences constructed as a part of development of a property in conjunction with a conditional use permit or site plan review. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches AD Staff Report Page 36 of 37 Packet Pg. 38

39 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Exemptions: 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. STAFF COMMENT: The development of the subject property does not require a conditional use permit or site plan review, therefore the requirements of this section are not applicable. IV. CONCLUSION Based on Staff s review of the applicant s burden of proof statement, plot plan and application materials, staff believes the proposed marijuana production facility complies with the applicable review criteria under DCC Section (B) AD Staff Report Page 37 of 37 Packet Pg. 39

40 1.1.b NOTICE OF PUBLIC HEARING The Deschutes County Hearings Officer will hold a public hearing on October 24, 2017, at 6:00 p.m. in the Barnes and Sawyer Rooms of the Deschutes Services Center, 1300 NW Wall St., Bend, to consider the following request: FILE NUMBER: PROPOSAL: OWNER/ APPLICANT: APPLICANT S ATTORNEY: LOCATION: STAFF CONTACT: DOCUMENTS: AD The applicant requests approval to allow indoor marijuana production in an existing 5,616 square foot structure on the approximate 392 acre subject property zoned Exclusive Farm Use (EFU-LA). Central Oregon Management Co., LLC Jeremy Klettke Emerge Law Group Corinne Celko, Attorney The subject property has an assigned address of Dawn Road, La Pine and is further identified as: Tax Lot 200 on County Assessor s Map C Tax Lot 100 on County Assessor s Map A: Tax Lot 100 on County Assessor s Map D; Tax Lot 100 on County Assessor s Map B 1 ; and Tax Lot 200 on County Assessor s Map C. Chris Schmoyer, Associate Planner Chris.Schmoyer@deschutes.org, (541) Can be viewed and downloaded from: or Attachment: AD NOPH - Mailing print pdf (1621 : Ad) ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE 1 Based on submitted plans, the existing building proposed for the use is located on Tax Lot 100 on County Assessor s Map B north of the terminus of Dawn Road on the subject property. Packet Pg. 40

41 1.1.b OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION OF THE DESCHUTES COUNTY CODE. Recipients of this notice may request a copy of the Staff Report (25 cents a page). Any person submitting written comment or who presents testimony at the hearing will receive a copy of the decision. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. STANDARDS AND APPLICABLE CRITERIA Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zones Chapter 18.88, Wildlife Area Combining Zone Chapter , Supplementary Provisions Section , Marijuana Production, Processing, and Retailing Title 22, Deschutes County Development Procedures Ordinance NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call the ADA Coordinator at (541) Attachment: AD NOPH - Mailing print pdf (1621 : Ad) File No AD 2 Packet Pg. 41

42 Land Use File AD Dawn Road, La Pine 1.1.b C, tax lot A, tax lot D, tax lot B, tax lot C, tax lot 200 Attachment: AD NOPH - Mailing print pdf (1621 : Ad) Approximate Location of Existing Structure for Proposed Use of Marijuana Production Deschutes County GIS, Sources: Esri, USGS, NOAA SUBJECT PROPERTY = NORTH Packet Pg. 42

43 1.1.b File AD Attachment: AD NOPH - Mailing print pdf (1621 : Ad) Packet Pg. 43

44 File AD 1.1.b Attachment: AD NOPH - Mailing print pdf (1621 : Ad) Packet Pg. 44