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Eight residences file appeal against planning commission's conditional permit approval

Multiple Powell Butte neighbors have banded together to appeal the approval of a hemp oil extraction facility near their homes.

In mid-January, the Crook County Planning Commission granted a conditional use permit for the new facility, which would be an outgrowth of a current hemp growing operation. In early February, eight different residences jointly filed an appeal citing several points of error.

A new facility proposed

The Crook County Planning Department received an application from Stanley Shephard, owner of Central Oregon Processing LLC, for the extraction facility on Oct. 31. As mandated by state statute, the planning department gave 20 days of advanced notice of an upcoming public hearing on the project to all neighbors within 750 feet of the proposed facility and issued a public notice about the hearing in the newspaper.

"Before the hearing, the planning commission did a site visit. We noticed those same neighbors, and they invited their neighbors," said county Planning Director Ann Beier. "So we had more than 20 people at the site visit in addition to the planning commission. On these big projects, we try to do that so that people all hear and see the same things. I think that was really helpful for both the planning commission and the neighbors."

What the planning commission learned during its Dec. 11 public hearing is that the neighbors are not pleased with the proposal, raising concerns about everything from property contamination and safety to traffic impact and hours of operation.

"They were overwhelmingly in opposition to the proposal," Beier said.

Hemp joins the crop list

According to Beier, hemp is a relatively new agricultural option in Oregon, which was spurred by a 2017 Department of Agriculture decision to participate in a pilot project.

"That allowed people to grow industrial hemp in the state of Oregon as a legal farm crop," she explained. "So that is the backdrop under which we look at hemp. It's a recognized farm crop just like hay or mint."

Beier added that when people grow crops, processing the harvested items typically follows, and processing can take many forms. She said farmers have similarly operated mint distilleries that extract the oil from the plant.

County Planner Katie McDonald said that in land use, there are three ways to obtain approval for a processing facility on farm ground. Operating a facility that is less than 2,500 square feet can be approved without conditions, and so can a facility of up to 10,000 square feet, provided at least 25% of the product processed is grown on-site.

The third option, which is reserved for any facility larger than 10,000 square feet, involves conditional use criteria and is viewed as a commercial use in conjunction with farm use. The proposed facility, which would make use of an old hay shed, is about 17,000 square feet.

"The proposal is to utilize the existing structure and place the initial processing equipment under that structure," McDonald said.

Resistance from the neighbors

After fielding considerable testimony at the initial planning commission hearing on the proposed project, the commission chose to leave the record open and accept additional written testimony from the public and offer the applicant an opportunity for written rebuttal.

Several neighbors took advantage of the opportunity, and the planning department received multiple, sometimes lengthy, written documents outlining why they are opposed to the project. Concerns ranged from the impact to local traffic and noise to the hours of operation and safety of the facility.

Approved with conditions

When the planning commission met in mid-January to deliberate, it entered the session with some recommended conditions from the county planning staff. They suggested that the applicant be required to obtain additional permits from the Crook County building official, sanitarian and fire marshal, as well as the Oregon Department of Agriculture and the State of Oregon Fire Marshal. Another recommended condition would require the applicant to provide a copy of the annual production report submitted to the Department of Agriculture to the County Community Development Department. The planning staff recommended the commission require hours of operation be kept between 6 a.m. and 7 p.m. Monday through Friday and suggested requirements for new lighting to be downcast and shielded. Staff additionally recommended that the commission require use of a second access, pending approval from the county road master, and limit noise generated by the operation to 70 decibels at the east and west boundary of the facility.

The planning commission moved forward with many of the recommended conditions, while making some modifications. For example, it required permitting from Oregon Department of Environmental Quality in addition to other agencies, and it restricted the hours of operation to 10-hour shifts between 6 a.m. and 6 p.m. The commission also increased the noise restriction to 75 decibels.

Appealing the decision

The eight residences appealing the planning commission decision are all represented by Lisa Andrach of Bryant Emerson, LLP, a law firm based in Redmond. In an appeal statement, she cited numerous errors that challenge multiple facets of the approval.

Regarding proper public notice, Andrach stated that the 160-acre parcel in the application is part of a larger 915-acre agricultural property. Therefore, neighbors within 750 feet of the entire property should have been notified, not just those within that distance of the 160-acre parcel.

Andrach went on to state that there is no evidence in the record to support that the applicant will process the required 25% of farm crops at the facility. She adds that the proposed 17,000-square-foot processing facility exceeds the 10,000-square-foot statutory maximum allowed.

Andrach also determined that several findings the approval is based upon are inadequate. She stated that the findings fail to address the opposition testimony or evidence and do not explain why the applicant's evidence outweighs it. She added that the decision must address such raised concerns as traffic, noise, pollution, public safety, security, size and location.

Andrach also challenged hemp oil extraction as a farm use in the appeal statement. She claimed that the county's findings do not address any evidence in the record that supports commercial activity as "essential" to the practice of agriculture. She said there is no substantial evidence or analysis in the findings that show the processing plant is not an "industrial use" that should be cited in an industrial zone.

According to Crook County code, the appellate body for the appeal will be the Crook County Court, "unless the county court orders the appeal be sent directly to the Oregon Land Use Board of Appeals as the final decision by the county."

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