MARION COUNTY BOARD OF COMMISSIONERS Board Session Agenda Review Form Meeting date: February 17, 2016 Department: Public Works Agenda Planning Date: Feb. 11, 2016 Time required: 5 Min. Audio/Visual aids Contact: Joe Fennimore Phone: 503-566-4177 Department Head Signature: TITLE Issue, Description & Background Receive and consider appeal of hearings officer's decision approving Conditional Use (CU) 15-035/ Norwest Energy 16, LLC and Coates. The applicants applied for a conditional use to establish a photovoltaic solar array power generation facility on the subject property. The request was originally approved by the planning director on September 2, 2015. The applicant requested reconsideration to clarify several items and on September 18, 2015, the planning director issued a decision approving the request. That decision was appealed to the hearings officer on October 5, 2015. The hearings officer conducted a public hearing on November 4, 2015, and the written record was left open until November 27, 2015. On January 22, 2016, the hearings officer issued a decision approving the request, subject to conditions. On February 7, 2016, the hearings officer's decision was appealed to the Marion County Board of Commissioners. Three issues are raised in the appeal. First, the property is in an SGO (Sensitive Groundwater Overlay) zone. The hearings officer discusses the SGO overlay zone and concludes that it only applies to development permits for new land uses that rely on water from exempt wells, and as the proposed facility does not use water, the provisions in the SGO zone do not apply. In finding #23, the hearings officer concludes that the proposal will have no significant adverse impact on groundwater. The appellant argues that based on a letter from Clearwater Hardrock Consulting, impacts on groundwater recharge of the aquifer from grading, soil compaction, soil hardening, runoff, and erosion soil should be evaluated in order to determine whether there will be a significant adverse impact on groundwater. Secondly, the appellant argues that multiple neighbors in the surrounding area testified that they will be negatively impacted by the installation of an industrial use that will be an eyesore. They indicate the proposed facility is unacceptably incompatible with the neighborhood and that this location is unsuitable. Lastly, the appellant discusses the impact the facility will have on wildlife habitat. Specifically they refer to a letter from Lynda Boyer of Heritage Seedlings and Liners, which indicates that the property contains "open-grown savanna oaks" and that destruction of this habitat will have long term impact on wildlife. The appellants' appeal concludes that should the board choose to approve the conditional use, conditions be added requiring vegetative screening to reduce the visual impact to neighbors; a water study of the area by a registered geologist to evaluate the impact of the facility on the aquifer and existing wells; and that more of the old oak trees throughout the property be preserved. Financial Impacts: None. MARION COUNTY BOARD OF COMMISSIONERS Board Session Agenda Review Form Impacts to Department None. & External Agencies Options for Consideration: Recommendation: List of attachments: Presenter: 1. Accept the appeal and remand the matter back to the hearings officer, requiring an agreement from the applicant to extend the 150 day decision making deadline. 2. Accept the appeal and schedule a public hearing on the suggested hearing date March 9, 2015. 3. Deny the appeal and uphold the hearing officer's decision approving the request. None. Copies of: * Hearings officer's decision * Appeal * Area map * Photos of solar panels Joe Fennimore Copies of completed paperwork sent to the following: (Include names and e-mail addresses.) Copies to: Joe Fennimore gfennimore@co.marion.or.us THE MARION COUNTY HEARINGS OFFICER In the Matter of the Case No. CU 15-035 Application of: Clerk's File No. NORWEST ENERGY 16, LLC ON PROPERTY OWNED BY JAMES E. COATES, AS TRUSTEE OF THE JAMES E. COATES REVOCABLE LIVING TRUST Conditional Use I. Nature of the Application This matter comes before the Marion County Hearings Officer on the application of NorWest Energy 16, LLC on property owned by James E. Coates, as Trustee of the James E. Coates Revocable Living Trust for a conditional use to establish a photovol taic solar array power generation facility on a 44.13-acre parcel in an SA (SPECIAL AGRICULTURE) zone at 6221 Coates Drive SE, Salem, Marion County, Oregon (TBS, R2W, S19B, tax lot 00100)~ II. Relevant Criteria Standards and criteria relevant to this application are found in the Marion County Comprehensive Plan (MCCP) and Marion County Code (MCC), title 17, especially chapters 17.119, 17.120 and 17.137. III. Public Hearing A public hearing was held on this matter on November 4, 2015. The Planning Division file was made part of the record. The following persons appeared and provided testimony on the application: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Brandon Reich Donald Kelley Tim Edelblute Damien Hall Dan Orzech Jeffrey Webber Steve Gilchrist Mitch Teal Rick Day Walton Brunson Lew Garrison Bill Ogilvie Marlene Knieling Judy Garrison Jim Knieling Susan Wheeler Planning Division Appellant Edelblutes' Attorney Appellant Applicant NorWest Energy 16, LLC's Attorney For applicant For applicant Proponent Proponent General General Opponent Opponent Opponent Opponent Opponent Opponent The record remained open until November 12, 2015 for applicant, November 19, 2015 for opponents and November 27, 2015 for applicant. The following documents were entered into the record as exhibits: Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. 1 2 3 4 5 6 7 8 9 10 Ex. 11 Ex. 12 Ex. 13 Ex. 14 Ex. 15 Ex. 16 Ex. 17 Ex. 18 Ex. 19 Ex. 20 Ex. 21 Annotated aerial photograph Annotated topographic/soil map Glare factor article Solar.siting/land use article Solar environmental considerations article Decision and case file documents from CU 12-036 Statement from Judy Garrison Wiltsey 2010 bird in~entory November 6, 2015 statement from David Coates November 12, 2015 cover sheet from Damien R. Hall with exhibits A and B (acoustic memorandum and erosion control proposal) November 18, 2015 statement from Marlene Knieling with excerpts from the Pacific Northwest oak bird guide November 19, 2015 statement from Tim, Leslie, Katie and Megan Edelblute Memorandum in opposition by Donald M. Kelley on behalf of Tim and Leslie Edelblute November 19, 2015 letter from Donald M. Kelley November 19, 20+5 statement, Caroline Childers for the Rural Battle Creek Road Association, Inc. (RBCRAI) Board of Directors, with at·tachments A-E November 13, 2015 email from Jon Remy, Turner Fire District Packet of solar energy environmental issues documents, printed November 19, 2015 Solar plant and desert tortoise article Soil Survey of Marion County Arear Oregon excerpts November 12, 2015 authorization to act from James E. Coates, Trustee November 27, 2015 memorandum from Damien R. Hill No objections were raised as to jurisdiction, conflict of interest, or to evidence or testimony presented at hearing. At hearing Rick Day stated he lives next door to the subject property but did not receive written notice of the hearing. The October 9, 2015 certification of mailing for the re-notice of the November 4, 2015 hearing, lists Richard B. Day, 4025 America Way SE as a notice repipient. This is the same address provided by Mr. Day at hearing and the address· listed in the · tax records of Marion County, the source for mailing addresses for local land use hearings under ORS 197.763 (2) (a). Mr. Day appeared at hearing, indicating actual notice. The record was left open to allow Mr. Day and others to provide additional information and argument. Notice was proper. CU 15-035\0RDER - 2 COATES In exhibit 15, RBCRAI asserts notice of public hearing was I defective for not including MCC 17. 110. 830, MCC chapter 17.181, and OAR 690-502-0200 as applicable criteria. OAR 690-502-0200 OAR 690-502-0200 contains regulations for the South Salem Hills ground water limited area (GLA). In ODOT v. Clackamas County, 23 Or LUBA 370 (1992), LUBA found statewide administrative rules need not be listed as applicable criteria under ORS 197. 7 63 ( 3) (b) (notice provided by the jurisdiction shall list the applicable criteria from the ordinance and the plan that apply to the application) . Failure to list OAR 690-502-0200 was not defective notice. MCC chapter 17.181 Under MCC 17.181.010, MCC chapter 17.181 implements MCCP environmental quality and natural resources goals and policies for groundwater. Under MCC 17. 181. 04 0, development permits for new land uses in an SGO zone that rely on water from ·exempt use wells are reviewed to determine compliance with MCC chapter 17. 181. Applicant indicates the proposed use will use little or no groundwater. Also, under MCC 17.181.070, only residential partitions, planned unit developments, and subdivisions require SGO water-supply studies, and new dwellings on existing lots require recording SGO declaratory statements. Only residential development related land uses are reviewed under MCC chapter 17.181, and no residential development or residential-related land use actions are proposed here. Failure to list MCC chapter 17.181 was not defective notice. MCC 17.110.830 MCC 17.110.830 states: The impact of proposed land uses on water resources shall be evaluated and potential adverse impacts on the water resources shall be minimized. Where evidence indicates groundwater limitations and the development will use groundwater as a water supply, the developer shall demonstrate that adequate water can be provided without adversely affecting the groundwater resource. MCC title 17 implements MCCP goals and policies. MCC 17.110.830 is a general statement of MCCP groundwater policies, and those goals and policies are carried out via MCC chapter 17.181 review. Applicant states the proposed use will use little or no groundwater, and no residential use or land use action allowing residential use are proposed. Failure to list MCC 17.110.830 was not defective notice. CU 15-035\0RDER - 3 COATES IV. Findings of Fact The hearings officer, after careful con.sideration of testimony and evidence in the record, issues the following findings of fact: 1. The subject property is designated Special Agriculture in the MCCP and zoned SA. The intent of the designation and zoning ~s to promote and protect commercial agricultural operations. The subject property is also within a sensitive groundwater overlay five-acre minimum parcel size (SG0-5) zone, and a portion of the site lies within the McNary Field airport overlay (AO) zone. 2. The property is south of Wiltsey Street SE and west of Coates Drive, and contains a dwelling and other buildings. The Soil Survey of Marion County Arear Oregon shows 54% of the subject property contains high-value farm soils. The property is in the 27 CFR 9.90 designated Willamette Valley viticulture area. 3. The small SA zoned parcel south of the subject property contains a nonfarm dwelling approved in CO 12-036. Most small SA zoned parcels to the west contain dwellings. Larger SA zoned parcels in farm use are southwest, southeast, and south beyond the smaller parcels. The City of Salem Urban growth·boundary (UGB) is north of the subject property and contains RS (Single Family Residential) zoned property in residential use, and UT (URBAN TRANSITION) zoned properties. Properties to the east are zoned AR (ACREAGE RESIDENTIAL) and are in residential use. 4. Applicant proposes establishing a photovoltaic solar array power generation facility on approximately 12 acres of the subject 44.13-acre parcel. The Planning Director approved the request on September 2, 2015. The Planning Director provided renotification of the decision on September 8, 2 015. Applicant requested reconsideration during the appeal period to clarify property and power generation facility ownership, facility operation responsibility, and to provide details on retiring the facility. The Planning Director approved the facility again on September 18, 2015. The Planning Director's approval was appealed on October 5, 2015. 5. The Marion County Planning Division requested application from various governmental agencies. comments on the The Marion County DPW Land Development and Engineering Permits Section (LDEP) submitted a memorandum to the record on September 1, 2015, but provided a modified memorandum on November 4, 2015: Approval of the proposal would allow a conditional use to establish a solar power generating facility on a 44.13-acre parcel. Public Works Engineering Division conditions, CU 15-035\0RDER - 4 COATES iequirements and advisory are given below. This Revised Memorandum simply modifies Engineering Requirement G having to do with erosion control from our original Memorandum, dated September 1, 2 015, by removing an erroneous reference to the property location. ENGINEERING CONDITIONS Public Works Engineering requests that the following conditions lettered A and B are included in the approval of the land use case. Prior to final building inspection dedicate a 30foot right-of-way half-width along the Wiltsey Street subject property frontage, and along the Coates Drive subject property frontage commencing from Wiltsey Street south to the intersection with Wiltsey Loop, in order to meet the County standard for a Local r·oad. Dedications should be to the public, not Marion County. Condition A - Nexus is the planned construction of a public power generation facility _that will generate a net increase in traffic above and beyond the existing Special Agricultural use, and the need to accommodate future road improvements including accommodation for utilities. It appears that a 10-foot deficiency in width exists along the subject property public road frontages. Condition B - Prior to issuance of building· permits, obtain a permit from MCPW to improve the Wiltsey Street subject property frontage with addition of 3 to 5-foot ·width gravel road shoulder with associated drainage earthwork and tree removal, depending on site-specific location and as field determined by the MCPW Engineering Inspector. Prior to final building inspection, obtain MCPW Engineering inspection acceptance of that work. Nexus is for traffic safety. The gravel shoulder provided shall be a total of 3 to 5 feet in width, depending on location, with 5% downslope, 8 inches in thickness, ~" to 1"-0, compacted, crushed rock meeting MCPW Engineering construction standards. There are several large diameter trees within 10 feet from the edge-of pavement that are in the way of shoulder widening, and in and of themselves present as fixed object hazards to vehicular traffic. ENGINEERING REQUIREMENTS The following comments lettered C through K, are informational only regarding County requirements and issues that the applicant must address if the proposal is approved. They are not part of the land use decision-making process. CU 15-035\0RDER - 5 COATES C. In accordance with Marion County Driveway Ordinance #651, driveways must meet sight distance, design, spacing, and safety standards. The following sub-requirements, numbered #1 through #3, apply to access. 1) At the time of application for building permits, an Access Permit will be required to establish a new access, including a temporary construction entrance. The Applicant will be required to demonstrate that sufficient Intersection Sight Distance is available or achievable. Existing redundant accesses not integral to the proposed development (described below) will be required to close, but not necessarily including access related to the existing residential/agricultural development situated on the southern portion of the property. 2) Permanently close an existing gated access on Wiltsey Street. Permanent closure involves culvert removal and reestablishment of the drainage ditch cross-section, and replacing gates with fencing. 3) It will be required to install a driveway culvert at the existing gated access on Coates Drive, which is affiliated with the existing residential/agricultural development. This may need to be done under a separate Access Permit from that issued for the development if the Applicant is different. D. Proposed improvements on the subject property such as security fencing and vegetative screening should not reduce available sight distance through the horizontal curve linking Wiltsey Street and Coates Drive that is already limited by a raised embankment. Furthermore, private fencing is not allowed within the public right-of-way (R/W) . Fencing within the public R/W not associated with the existing residential/agricultural/livestock land use will need to be removed from within 30 feet of roadway centerline. E. Prior to or at the time of application for building permits, MCPW Engineering will require subm~ssion of three (3) sets of civil site plans depicting among other things, grading and management of stormwater runoff. Stormwater detention may or may not be required, however permanent BMPs to prevent concentrated flow will definitely be required as part of the design. It is highly advisable to gain MCPW Engineering concurrence with a civil site plan prior to application for building permits in order to avoid delays in issuance of building permits. CU 15-035\0RDER - 6 · COATES F. An irrigation waterline crossing of Wiltsey Road that will likely no longer serve the northern portion of the farm property slated for redevelopment will need to be removed or properly abandoned. This could be done under the. same Permit to be issued for placing shoulder rock. G. Prior to issuance of building permits, the Applicant will be required to show evidence of having obtained a DEQ National Pollutant Discharge Elimination System 1200-C Permit. The Permit is required by DEQ for all construction activities that disturb one-acre or more. The Applicant is advised that Marion County Inspectors will be conducting intermittent visual monitoring of construction erosion control practices and reporting back to DEQ as necessary, in addition to any DEQ inspections. H. The subject property is within the unincorporated area of Marion County and will be assessed Transportation System Development Charges (SDCs) per Marion County Ordinance #00lOR, which are due as a condition for issuance of building permits. Following initial construction, monthly maintenance and as-needed maintenance will be conducted. The Applicant will need to submit a traffic estimate to MCPW. I. Any work, including utility work within the public R/W will require a permit from Public Works. J. The Applicant is advised that a portion of Coates Drive along the southern portion of the Coates Drive property frontage, ·south of the intersection with Wiltsey Loop, is classified as a Local Access Road that is not maintained by Marion County. Maintenance of Local Access Roads is the responsibility of adjacent property owners. Nevertheless, any improvements to the Local Access Road portion of Coates Drive require a permit ~rom MCPW Engineering since it still is a public right-of-way. K. It is the responsibility of the Applicant to preserve and protect the current pavement condition Index (or PCI) rating (as applicable) and the structural integrity of adjacent paved and graveled county roads to the satisfaction of Marion County Public Works during transport of materials and construction activities. Failure to preserve and protect the road may result in the applicant being responsible for replacing or reconstructing the ·damaged road at his/her own expense. CU 15-035\0RDER - 7 COATES ENGINEERING ADVISORY The applicant is also advised of the following potential issue, lettered L that has bearing on the proposal: The Applicant is advised that construction of improvements on the property should not block historical or naturally occurring runoff from adjacent properties. Furthermore, site grading should not impact surrounding properties, roads, or drainage ways in a negative manner. A natural ephemeral drainage channel parallels the west property line. Filling-in of that channel may induce an increase in runoff onto the western neighbor's property. Depending on the grading scheme, it may be prudent to install a mitigation swale in its place along the west property line. L. Marion County Building Inspection ·commented that permits would be required for construction. All other contacted agencies either did not respond or stated no objection to the proposal. V. Additional Findings of Fact and Conclusions of Law 1. Applicant has the burden of proving by a preponderance of the evidence that all applicable standards and criteria are met. As explained in Riley Hill General Contractor, Inc. v. Tandy Corporation, 303 Or 390 at 394-95 (1987) "'Preponderance of the evidence' means the greater weight of evidence. It is such evidence that, when weighed with that opposed to it, has tnore convincing force and is more probably true and accurate. If, upon any question in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must' resolve that question against the party upon whom the burden of proof rests." (Citation omitted.) Applicants must prove, by substantial evidence in the record, it is more likely than not that each criterion is met. If the evidence for any criterion is equally likely or less likely, applicants have not met their burden and the application must be denied. If the evidence for every criterion is a hair or breath in applicants' favor, then the burden of proof is met and the application will be approved. MCC 17.119 2. Under MCC 17.119.100, the Planning Director has the power to decide all conditional use applications. Under MCC 17.119.140, CU 15-035\0RDER - 8 COATES after the Planning Director's final decision, interested persons may appeal the decision no later than 15 days after the decision is mailed. The final Planning Director's decision is dated September 18, 2015. The 15th appeal day fell on Satu'rday, October 3, 2015, so the appeal date ext~nded to Monday, October 5, 2015. Neighboring property owner~ appealed the decision on October 5, 2015. The appeal was timely filed by interested persons. 3. Under MCC 17 .119. 150, if the Pianning Director's decision is appealed, the hearings officer shall conduct a hearing. The hearings officer may hear and decide this matter. 4. Under MCC 17.119.020, a conditional use application may only be filed by certain people, including the owner of the property subject to the application. Two property line adjustment deeds were provided for the record, one recorded at reel 3339, page 334 with property descriptions A through E, and one recorded at reel 3499, page 322 with property descriptions A through E. Property description C from the second recorded deed appears to show the subject property (map tax lot 082Wl9B00100) and it is in the name of James E. Coates, as Trustee of the James E. Coates Revocable Living Trust. The Marion County Assessor's Office also lists Mr. Coates, as trustee, as owner of the subject property. Mr. Coates, as trustee, authorized NorWest 16 to file the application. MCC 17.119.020 is satisfied. 5. Under MCC 17.119.025 a conditional use application shall include signatures of certain people, including the authorized agent of an owner. Mr. Coates, as trustee of the subject property, authorized NorWest to sign the application. Sam Lines, a NorWest vice president, is authorized to sign the application for NorWest. MCC 17.119.025 is satisfied. 6. Under MCC 17. 119. 0 7 0, before granting hearings officer shall determine: 7. officer has a the conditional power to use, the grant the (A) That the hearings conditional use; (B) That the conditional use, as described by the applicant, will be in harmony with the purpose and intent of the zone; (C) That any condition. imposed is necessary for the public health, safety or welfare, or to protect the health or safety of persons working or residing in the area, or for the protection of property or improvements ln the neighborhood. Under MCC 17. 119. 030, the hearings officer may hear and decide only those applications for conditional uses listed in MCC title CD 15-035\0RDER - 9 COATES 17. MCC 17.137.050 (F) (3) lists a · photovoltaic solar power generating facility, subject to MCC 17.120.110 as a conditional use in the SA zone. Photovoltaic solar power generation facility as defined in OAR 660-033-0130 (38) (e) (e): [I]ncludes, but is not limited to, an assembly of equipment that converts sunlight into electricity and then stores, transfers, or both, that electricity. This includes photovoltaic modules, mounting and solar tracking equipment, foundations, inverters, wiring, storage devices and other components. Photovoltaic solar power generation facilities also include electrical c~ble collection systems connecting the photovol taic solar generation facility to a transmission line, all necessary. grid integration equipment, new or expanded private roads constructed to serve the photovoltaic solar power generation facility, of~ice, operation and maintenance buildings, staging. areas and all ·other necessary appurtenances. For purposes of applying the acreage standards of this section, a photovoltaic solar power generation facility includes all existing and proposed facilities on a single tract, as well as any existing and proposed facilities determined to be under common ownership on lands with fewer than 1320 feet of separation from the tract on which the new facility is proposed to be sited. Projects connected to the same parent company or individuals shall be considered to be in common ownership, regardless of the operating business structure. A photovoltaic solar power generation facility does not include a net metering project established consistent with ORS 757.300 and OAR chapter 860, division 39 or a Feed-in-Tariff project established consistent with ORS 757.365 and OAR chapter 860, division 84. ORS 757.300 deals with customers of electricity providers who generate power for personal use and sell excess power to the provider for its use. ORS 757.365 involves a Public Utility Commission pilot program for small retail customer solar energy systems. Based on the applicable ORS, OAR and application (including site plan, narrative and supporting docume~tation) , it is found applican~t proposes photovol taic solar power generation facility as conditionally permitted under the MCC. MCC 17.119.070(A) is met. 8. MCC 17.137.010 contains the SA zone purpose statement: The SA (special agriculture) zone is applied in areas characterized by small farm operations or areas with a CU 15-035\0RDER - 10 COATES mixture of good and poor farm soils where the existing land use pattern is a mixture of large and small farm units and some acreage homesites. The farm operations range widely in size and include grazing of livestock, orchards, grains and grasses, Christmas trees and specialty crops. The range in size of management units present no significant conflicts and allow optimum resource production from areas with variable terrain and soils. It is not deemed practical or necessary to the continuation of the commercial agricultural enterprise that contiguous ownerships be consolidated into large parcels suitable for large-scale management. Subdivision and planned developments, however, are not consistent with the purpose of this zone and are prohibited. This zone allows the flexibility in management needed to obtain maximum resource production from these lands. It emphasizes farm use but forest use is allowed and protected from conflicts. The SA zone is intended to be applied in areas designated special agriculture in the Marion County Comprehensive Plan. The SA zone retains Class I through IV soils in commercial farm units comparable to those in the vicinity or in small-scale or specialty commercial farms where the land is especially suited for such farming. The SA zone is intended to be a farm zone consistent with ORS 215.283. Under MCC 17 .119·. 010, a conditional use is an activity that is similar to other uses permitted in the zone, but due to some of its characteristics that are not entirely compatible with the zone could not otherwise be permitted. MCC 17.137 and, by reference, MCC 17.120.110 provisions are intended to carry out the purpose and intent of the SA zone. Review of proposed conditional use under MCC 17.120.110 and 17.137 criteria ensures the proposed use will be in harmony with the purpose and intent of the SA zone. The criteria are discussed below and are met. MCC 17.119.070(B) is met. 9. Conditions set forth below are required to meet applicable criteria, thereby protecting the public health, safety and welfare, protecting the health or safety of persons working or residing in the area, and protecting property or improvements in the neighborhood. MCC 17.119.070(C) is satisfied. CU 15-035\0RDER - 11 COATES MCC 17.120.110 10. MCC 17.120.110 is based on ORS 215.283(2) (g), OAR 660-033-0120 with accompanying table that lists photovoltaic solar power generation facilities as commercial utility facilities for the purpose of generating power for public use by sale as an authorized use on agricultural lands, and OAR 660-033-0130 (38) which contains minimum standards for photovoltaic facilities. OAR 660-033-0130(38) provides three solar power generation facility siting scenarios: siting on high-value farmland, arable lands, and nonarable lands. The record shows 54% of the subject property is composed of class III Nekia silty clay loam, 2 to 7 percent slopes (NeB) and class III Nekia silty clay -loam, 7 to 12 percent slopes (NeC) soils. Under ORS 215.710 (3), tracts of land in the Willamette Valley composed of predominantly class III soils qualify as high value farmland. At 54% class III soils, the subject tract qualifies as high-value farmland, and is evaluated under MCC 17.120.110(B), (E) and (F): B. For high-value farmland soils described at ORS 195.300'(10) [refers to ORS 215.710 discussed above], the following must be satisfied: 1. A photovoltaic solar power generation facility shall not preclude more than 12 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR Chapter 660, Division 004; 2. The proposed photovoltaic solar power facility will not create unnecessary negative impacts on agricultural operations conducted on any portion of the subject property not occupie'd by project components. Negative impacts could include, but are not limited to, the unnecessary construction of roads dividing a field or multiple fields in such a way that creates small or isolated pieces of property that are more difficult to farm, and placing photovol taic solar power generation facility project components on lands in a manner that could disrupt common and accepted farming practices; 3. The presence of a photovoltaic solar power generation facility will not result in unnecessary soil erosion or loss that could limit agricultural productivity on the subject property. This provision may be satisfied by the submittal and county approval of a soil and erosion control plan prepared by an adequately qualified individual, showing how unnecessary soil · erosion will be avoided or remedied and how topsoil will be stripped, stockpiled and CU 15-035\0RDER - 12 COATES clearly marked. Th~ approved plan shall be attached to the decision as a condition of approval; 4. Construction or maintenance activities will not result in unnecessary soil compaction that reduces the productivity of soil for crop production. This provision may be satisfied by the submittal and county approval of a plan prepared by an adequately qualified individual, showing how unnecessary soil compaction will be avoided or remedied in a timely manner through deep soil decompaction or other appropriate practices. The approved plan shall be attached to the decision as a condition of approval; 5. Construction or maintenance activities will not result in the unabated introduction or spread of noxious weeds and other undesirable weeds species. This provision may be satisfied by the submittal and county approval of a weed control plan prepared by an adequately qualified individual that includes a long-term maintenance agreement. The approved plan shall be attached to the decision as a condition of approval; 6. The project is not located on high-value unless it can be demonstrated that: a. Non-high-value farmland subject tract; or b. Siting the project on non-high-value farmland soils present on the subject tract would significantly reduce the project's ability to operate successfully; or c. The proposed site is better suited to allow continuation of an existing commercial farm or ranching operation on the subject tract than other possible sites also located on the subject tract, including those comprised on non-high-value farmland soils; 7. A study area consisting of lands zoned for exclusive farm use located within one mile measured from the center of the proposed project shall be established and: a.· If fewer than 48 acres of photovoltaic solar power generation facilities have been constructed or received land use approvals and obtained building permits within.the study area, no further action is necessary; b. When at least 48 acres of photovoltaic solar power generation ·facilities have been constructed or received land use approvals and obtained building permits, either as CU 15-035\0RDER - 13 COATES soils are not farmland available. on soil the a single project or multiple facilities within the study area, the local government or its designate must find that the photovol taic solar power generation facility will not materially alter the stability of the overall land use pattern of the area. The stability of the overall land use pattern of the area will be materially altered if the overall effect of existing and potential photovoltaic solar power generation facilities will make it more difficult for the ·existing farms and ranches in the area to continue operation due to diminished opportunities to expand, purchase or lease farmland or acquire water rights, or will reduce the number of tracts or acreage in farm use in a manner that will destabilize the overall character of the study area. E. A condition of any approval for a photovoltaic solar power generation facility shall require the project owner to sign and record in the deed records of Marion County a document binding the project owner and project owner's successor in interest, prohibiting them from pursuing a claim for federal relief or cause of action alleging injury from farming or forest practices defined in ORS 30. 930 (2) and ( 4) . F. 11. Nothing in this section shall prevent a county from requiring a bond or other security from a developer or otherwise imposing on a developer the responsibility for retiring the photovoltaic solar power generation facility. Applicant states the subject photovoltaic solar power generation facility is on no more than 12 acres of the subject property. The definition of photovol taic solar power generation facility includes not only the assembly of equipment that converts sunlight into electricity and then transfers the electricity, but includes electrical cable collection sys.tems connecting the photovol taic solar generation facility to a transmission line, service roads and ~all other necessary appurtenances." Site plans show two fenced solar panel areas with access from Wiltsey Street to the west panel area. Applicant shows no access road leading to the east panel area, but shows a gate from each array area opening across from each other onto the strip of land between the two array areas. Also, a ~point of interconnection" is shown outside the array area near existing structures and on class III soils. If this is where the facility will be connected to the electrical grid, it would be a necessary part of the facility that needs to be included in the facility acreage as would the accessway to the east array area. The latest erosion control plan shows temporary sediment basins with accompanying silt fences outside the 12 acre site with one set in a farm CU 15~035\0RDER COATES - 14 field area. If these were permanent fixtures, they could be classified as "other necessary appurtenances" that could interfere with commercial farm use, but as temporary fixtures during construction, any interference with farm fields will be minimal and passing. Setting out the facility in the manner applicant proposes, with fringe areas on three sides between the solar array area and rights-of-way or adjoining properties could be seen as isolating areas of the property in a way that the whole northern portion of the parcel could be precluded from commercial agricultural use. That is not the case here. This criterion states that the use "shall not preclude more than 12 acres from use as a commercial agricultural enterprise unless an exception is taken .... " This does not say the solar farm can be no more than twelve acres, or no more than 12 acres on high value farmland, but that it can preclude no more than 12 acres of "commercial agricultural enterprise". Theoretically, a solar facility could take 12 acres out of commercial farm use along with however many acres are in the parcel that cannot be put to commercial farm use. Here, the class VI Nekia very stony clay loam, 2 to 30 percent slope (NsE) and Witzel very stony silt loam, 3 to 40 percent slopes (WtE) soils in the northern portion of the parcel, including the array and fringe areas, already make the area incompatible with commercial cultivation, with or without the solar array. Still, cultivated crops are not the only commercial farm uses to consider. The WtE soils that make up the majority of the northern part of the parcel are not just unsuited to cultivation, but are poorly suited to pasture and are not within a woodland suitability group. The NsE soils making up most of the remaining area might be used for grass pasture and are in woodland suitability group 3c2, and livestock could access and graze the fringe area and trees could continue to grow there. One other consideration in evaluating this criterion is that the use that must not be precluded is not just farm use, but must be commercial farm use, and it is not clear the NsE soils could sustain commercial farm use, especially considering the relatively small amount of NsE soil on the property. As sited, no or minimal land is lost from potential agricultural production because the soils in the area are not suited to commercial agricultural production. As such, it is feasible to meet this criterion even if additional land is needed to accommodate things like a grid connection or drainage basin outside the array area. As ·a condition of approval, applicant's final site plan shall accurately show all OAR 660-033-0130 (e) component areas and acreage calculations, and demonstrate that CU 15-035\0RDER - 15 COATES facility components take no more than 12 acres out of potential commercial agricultural production. As conditioned, the solar field will not preclude use of more than 12 acres for commercial farm use, and a goal 3 exception will not be required under MCC 17.120.110(B) (1). 12. The subject property has a distinct division of high and nonhigh-value farm soils. The subject solar array will be sited on and accessed via the nonhigh-value soil area. The high value portions of the property contain farm fields and a dwelling area, and the access road off of Wiltsey does not divide, remove or impede the use of agricultural fields nor will the project be placed in a manner that restricts farm use of the remaining parcel area. Once built, the facility will be fairly passive, and with the drainage and weed control plans required below, the proposed facility will not create unnecessary negative impacts on agricultural operations conducted on portions of the property not occupied by project components. MCC 17.120.110(B) (2) is met. 13. Applicant provided construction and post construction preliminary stormwater and erosion control documents with explanations and supporting calculations prepared by engineer Lukas Klovins. These calculations have not been challenged. Additionally, MCDPW LDEP stated it would require site plans showing grading and stormwater runoff management and permanent best management practices to prevent concentrated flow of stormwater. DPW also states that an Oregon Department of Environmental Quality NPDES 1200-C discharge permit will be required. Making applicant's stormwater plan, and DPW review and approval of a grading and drainage plan conditions of approval, along with a showing that NPDES 1200-C permitting requirements have been met, will show the presence of the photovoltaic solar power generation facility will not result in unnecessary soil erosion or loss that could limit agricultural productivity on the subject prop~r~y, and MCC 17.120.110(B) (3) will be met. 14. Construction and maintenance activities will result in some soil compaction, but the solar array area is made up of class VI NsE and WtE soils that are not sui table for cultivated crops, and the dominant WtE soil is not sui table for pasture or woodland use. Soil compaction of the site will not reduce the productivity of the soil for crop production on the subject property. MCC 17.120.110(B) (4) is met. 15. Applicant submitted a preliminary weed abatement plan involving after construction replanting with cleaned native species seed mix and seasonal manual eradication of weeds thereafter. The plan shows abatement and control are feasible. A long-term maintenance agreement will be required as ~ condition of appr6val. Additionally, the subject property is within the CU iS-035\0RDER - 16 COATES Marion County weed control district and subject to MCC chapter 8.20. Applicant shall submit a final weed mitigation and control plan to Marion County DPW, overseer of the weed control district, for review and approval. As conditioned, construction or maintenance activities will not result in the unabated introduction or spread of noxious weeds and other undesirable weeds species. As a conditioned MCC 17.120.110(8) (5) is met. 16. The project is not located on 17.120.110(8) (6) is not applicable. 17. A study area consisting of lands zoned for exclusive farm use located within one mile measured from the center of the proposed project shall be established and: a. high-value farm soil. MCC If fewer than 48 acres of photovoltaic solar power generation facilities have been constructed or received land use approvals and obtained building permits within the study area, no further action is necessary; * * * Applicant and the Planning Director state, and it is not contested, that there are no other solar facilities within a one-mile radius of the subject p+operty. A planning staff report (or in this case, a Planning Director's decision) can itself constitute substantial evidence even if it is not supported by other evidence. Petes Mountain Homeowners Association v. Clackamas County, 55 Or. LUBA 287, 313 (2007). Applicant met its burden of proving there are no other solar facilities within one-mile of the proposed solar power generation facility. MCC 1 7 . 12 0 . 11 0 (B) ( 7 ) i-? met . 18. A condition of approval will require the project owner to sign and record in the deed records of Marion County a document binding the project owner and project owner's successor in interest, prohibiting them from pursuing a claim for federal relief or cause of action alleging injury from farming or forest practices defined in ORS 30.930(2) and (4). As conditioned, MCC 17.120.110(E) is satisfied. 19. Neighboring property owners propose bonding for the project. Applicant accepts signing ongoing site maintenance and decommissioning agreements binding applicant and any future owner as conditions of approval. Applicant also provided an estimated cost of decommissioning compared to salvage value of materials, and salvage value exceeds decommissioning costs by over $78,000, showing incentive to decommission. With the conditioned agreements imposing responsibility for retiring the photovoltaic facility on applicant, bonding is not required. CO 15-035\0RDER- 17 COATES MCC 17.137.060(A) 20. 21. Under MCC 17.137.060 (A), the following conditional uses in the SA zone: criteria apply to all 1. The use will not force a significant change in, or significantly increase the cost of, accepted farm or forest practices on surrounding lands devoted to farm or forest use. Land devoted to farm or forest use does not include farm or forest use on lots or parcels upon which a non-farm or non-forest dwelling has been approved and established, in exception areas approved under ORS 197.732, or in an acknowledged urban growth boundary. 2. Adequate fire protection and other rural services will be available when the use is established. 3. The use will not have a significant adverse impact on watersheds, groundwater, fish and wildlife habitat, soil and slope stability, air and water quality. 4. Any noise associated with the use will not significant adverse impact on nearby land uses. 5. The use will not have a significant adverse impact on potential water impoundments identified in the Comprehensive Plan, and not create significant conflicts with operations included in the Comprehensive Plan inventory of significant mineral and aggregate sites. are have or a Farm practices. MCC 17.137.060 (A) (1) incorporates OAR 660-0330130(5) and ORS 215.196(1) requirements. ORS 215.196(1) as interpreted in Schellenberg v. Polk County, 21 Or LUBA 425, 440 (1991), requires a three-part analysis to determine whether a use will force a significant change in or significantly increase the cost of farm or forest practices on surrounding lands devoted to farm use. First, the county must identify the accepted farm and forest practices occurring on surrounding farmland and forestland. The second and third parts _of the analysis require that the county consider whether the proposed use will force a significant change in the identified accepted farm and forest practices, or significantly i~crease the cost of those practices. Before evaluating farm practices, it must be determined which properties need to be looked at. Farm use on the subject property was considered above. Only farm uses on surrounding properties are considered here. Areas within the Salem UGB and city limits, and the AR zone are not considered. The nonfarm CU 15-035\0RDER - 18 COATES dwelling property abutting the subject property to the south cannot be considered. Small SA zoned properties west of the subject property are in residential rather than farm use. This leaves three nearby farm parcels; tax lots 082Wl9B01400 (McAllister Family Trust), 082W1900500 (James E. Coates) and 082W19A01900 (James E. Coates) to consider. No one representing the farm property owners appeared to complain of potential. impacts on farm use of these properties. No forest practices are alle~ed or obvious on these properties. According to applicant, farm use in the area is limited to grazing cattle and cattle will be unharmed because the solar project will not discharge dust, smoke or other matter. Opponents suggest noise from the site may have a negative impact on cattle but offered no evidence on the matter. Applicant notes that solar farms are co-located with livestock and provided photographs of sheep, alpaca and cattle among the same type of solar array. Additionally, the three farm parcels are insulated from the proposed solar field by distances of an estimated 600' to southeast, over 1, 200' to t,he south and about 625' to the southeast, reducing the effects of noise on the farm properties. Applicant did not provide greatly detailed information on farm practices, but as living beings cattle would require feed, water, and occasional medical attention. And, like other crops, cattle would be ·harvested and likely transported off site for processing. Given the generally passive solar use, it is more likely than not that farm practices will not be hindered by nor will their cost go up with installation of the proposed use. MCC 17.137.060 (A) (1) is satisfied. 22. Adequate services. Utility lines are available to the subject property. No new well or septic systems are proposed. DPW LDEP requested, and applicant agreed to, property dedication to accommodate roadway improvements for the site. DPW will require grading and stormwater management plaris and NPDES permitting that can be made conditions of approval. Turner Fire District is satisfied that appropriate fire protection can be provided for the use. With conditions requiring right-of-way dedication, roadway improvements, drainage control and fire district regulation compliance, adequate services are or will be available upon development. MCC 17.137.060 (A) (2) is satisfied. 23. Significant adverse impact. The property is within .an SGO zone but no residential development is proposed. Neighbors note several wildlife species in the area, but the site is not within or near an MCCP identified major or peripheral big game habitat area. As referenced in MCC 17.110.835, MCCP identified big game and wildlife habitat areas are the county's concern and what must be considered when making a land use decision. No MCCP CU 15-035\0RDER - 19 COATES identified watershed areas are on or near the subject property. The property is not in or near an MCCP identified floodplain area, and is not in a geologic hazard area. The solar panels are solidly encased and emit no particulates and leach no materials. The solar array area is sloping and trees will be removed, but applicant submitted stormwater and erosion control plans that show containment is possible, and final plans will be reviewed by DPW as conditions of approval. Applicant has proven that, with conditions, there will be no significant adverse impact on watersheds, groundwater, fish and wildlife habitat, soil and slope stability, air and water quality, and MCC 137. 0 60 (A) ( 3) will be met. 2 4. Noise. Noise sensitive residential uses are near the ·subject site. Though solar collection panels act passively and make no noise, inverters that convert direct current electricity to alternating current electricity for transfer to the electrical grid produce noise. The proposed facility requires only one inverter that will be placed at the south-central area of the facility, which is at the center of the subject property. Inverter noise abates as the sun sets because electricity production declines. The noise stops altogether during hours of darkness because no electricity is generated . . Marion County's noise ordinance, MCC chapter 8.45, at MCC 8.45.080(A) specifically exempts sounds generated by conditional use permit activities from prosecution if the activities are conducted in accordance with the terms and conditions of the permit. Conditional uses do not get a free pass on noise, but the noise standards must be set in the conditional use permitting process to be effectively enforced. State noise regulations are found in Oregon Departmept of Environmental Quality (DEQ) OAR 340-035. In Johnson v. Marion County, 58 Or LUBA 459 at 470 (2009), the Land Use Board of Appeals found that Marion County did not adopt OAR 340-035 noise regulations as the county's own. This does not mean the OAR cannot be looked to for guidance when evaluating noise in specific situations, or cannot be set as the noise standard in conditional use decisions. The following OAR 240-0350035 (1) (b) (B) (i) standard is adopted as a part of this order to ensure MCC 17.137.060(A) (4) is met: No person owning or controlling a new industrial or commercial noise source located on a previously unused industrial or commercial site shall cause or permit the operation of that noise source if the nois'e levels generated or indirectly caused by that noise source increase the ambient statistical noise levels, LlO or LSO, by more than 10 dBA in any one hour, or exceed CO 15-035\0RDER - 20 COATES the levels specified in Table appropriate measurement point ... " 8, as measured at an Under OAR 340-035-0015(33), a new industrial or commercial noise source means any industrial or commercial noise source for which installation or construction was commenced after January l, 1975 on a site not previously occupied by the industrial or commercial noise source in question. There are no known prior commercial or industrial uses of the subject property on January l, 197 5 or before. The subject proposed solar power generating facility is a new industrial or commercial noise source. Under OAR 340-035-0015 ( 4 7), a previously unused industrial or commercial site means property that has not been used by any industrial or commercial noise source during the 20 years immediately preceding commencement of construction of a new industrial or commercial source on that property. Agricultural activities and silvicultural activities generating infrequent noise emissions. shall not be considered as industrial or commercial operations for the purposes of this definition. No known commercial or industrial uses occurred on the subject property in the past 20 years. The subject site is a previously unused industrial .or commercial site. Applicant must meet OAR 340-035-0035 (1) (b) (B) standards for a new noise source on a previously unused site. Under OAR 340-0350035 (1) (b) (B) (i), the noise limit for new sources on previously unused sites is the lower of the ambient statistical noise level, LlO or L50, plus 10 dBA (decibels on an A weighted scale), or the OAR 340-035, Table 8 noise level. LlO is the noise level equaled or exceeded 10% of an hour (six minutes) . L50 is the noise level equaled or exceeded 50% of an hour (30 minutes). Table 8 allowable statistic~l noise levels allowed in any one hour, from 7 a.m. to 10 p.m. are, L50=55 dBA, L10=60 dBA, Ll=75 dBA, and from 10 p.m. t·o 7 a.m. are, L50=50 dBA, Ll0=55 dBA, L1=60 dBA. Applicant has not conducted a noise study but provided information from a German noise study conducted on the type of inverter unit proposed for this project. Applicant provided a site plan showing the subject property, the location of the proposed inverter, and radiating expected ambient noise levels based on the German sound study. The German study is well documented and there is no evidence that it was not appropriately conducted. The study shows the inverter emits 66.4 dBA at 30' and 52.41 dBA at 150' from the inverter. (Applicant's memo provides result values in dB but that appears to be in error ·because the study provides values in dBA. The hearings officer finds applicants stated results are dBA values which translate well to DEQ sound regulations. ) Study distance CU 15-035\0RDER - 21 COATES measurements are stated in meters, but applicant converted the The nearest off-site noise-sensitive measurements to feet. receptor is nearly 600' away and the noise level there is expected to be 35 dBA. This shows it is feasible to meet sound standards. Applicant will need to record baseline measurements to determine the ambient noise level of the site to calculate ambient level plus 10 dBA. This measurement will be used to determine whether the plus 10 dBA or table 8 standard applies, and how to specifically meet that requirement. A condition of approval will require applicant to provide a site-specific engineer-certified plan showing how the facility will operate within the determined standard. As conditioned, noise associated with the use will not have a significant adverse impact on nearby land uses, and MCC 17.137.060 (A) (4) is satisfied. 25. Water impounds/mineral and aggregate sites. No MCCP identified mineral and aggregate sites or potential water impounds are on or near the subject property. MCC 17.137."060(A) (5) is satisfied. AIRPORT OVERLAY ZONE 2 6. The subject property is within the airport over lay · (AO) zone of the City of Salem's McNary Field. MCC chapter 177 governs the Marion County AO zone. Under MCC 17.177.030, three airport development districts are provided within the airport overlay zone. These three districts are shown on the official zoning map showing the height limits adopted at the time the airport overlay zone is applied. . A. Airport Development District. This district consists of those lands, waters and airspace area a·t or below the primary, transitional and approach surfaces described in MCC 17.177.020(C). 1. Use Limitations. Any use, accessory use, buildings and structures otherwise allowed in the underlying zone shall be permitted provided the following requirements are satisfied: a. No obstruction or object shall be permitted if it extends above the transitional and approach surfaces as defined in MCC 17.177.020(C). b. Roadways, parking areas and storage yards shall be located in such a manner that vehicle lights will not result in glare in the eyes of the pilots, or in any other way impair visibility in the vicinity of the runway approach. CU 15-035\0RDER - 22 COATES B. C. c. Sanitary landfills, sewage lagoons or sewage disposal shall not be permitted closer than feet to the airport runway. d. No game preserve or game reservation shall be permitted if the animals ·or birds have the potential to become a hazard to air navigation. e. No structure or use intended fOr public assembly shall be allowed except by a conditional use permit. Horizontal Surface District. This district consists of the land, water and airspace underneath the horizontal surface as described in MCC 17.177.020(C). 1. Use Limitations. Any use, accessory use, building and structure allowed in the underlying zone shall be permitted provided the following requirements are satisfied: a. No obstruction shall penetrate the horizontal surface as defined in MCC 17.177.020(C). b. Sanitary landfills, sewage lagoons or sewage disposal shall not be permitted closer than feet to the airport runway. sludge 10,000 Conical Surface District. This district consists of the land, water and airspace underneath the conical surface as described in MCC 17.177.020(C) 1. 27. sludge 10,000 Use Limitations. Any use and accessory uses, buildings and structures allowed in the underlying zone shall be permitted; provided, that no obstruction penetrates the conical surface as defined in MCC 17.177.020(C). Under local rules, the hearings officer may take official notice of judicially noticeable facts and ordinances, resolutions, rules and regulations of the United States, the State of Oregon, Marion County, and the incorporated cities within Marion County. To determine which districts apply here, the hearings officer takes official notice of the Federal Aviation Administration (FAA) approved airspace surfaces from the 2 012 City of Salem draft Salem Airport master plan, page 291. The illustration shows the subject property is within the conical surface of the Salem Airport. Under MCC 17. 17 7. 02 0, conical surface means a surface extending outward and upward ·from the periphery of the horizontal surface at a slope of 20 to one for a horizontal distance of 4,000 feet. Under MCC 17.177.030(C) (1), any SA zone CO 15-035\0RDER - 23 COATES use is allowed as long as the conical surface is not penetrated. The conical surface at the subject property is at about 400'. The solar facility is at ground level. In addition, applicant conducted site-specific glare and FAA safety studies. MCC 17.177.030(C) is satisfied. VI. Order It is hereby found that applicant has met the burden of proving applicable standards and criteria for approval of a conditional use application to establish a photovoltaic solar array power generation facility on a 44.13-acre parcel in an SA zone have been met. Therefore, the conditional use application is GRANTED, subject to the conditions set forth below. These conditions are necessary for the public health, safety and welfare. 1. Applicant shall obtain all required County Building Inspection Division. 2. Prior to issuance of building permits, applicant shall provide evidence of an Oregon Department of Environmental Quality 1200-C construction storm water permit to the Planning Division and Public Works Land Development Engineer~ng and Permits Division. 3. Prior to final building inspection applicant shall dedicate a 30-foot right-of-way half-width along the Wiltsey Street subject property frontage, and along the Coates Drive subject property frontage commencing from Wiltsey Street south to the intersection with Wiltsey Loop, to meet the County standard for a local road. Dedications are to the public, not Marion County. 4. Prior to issuance of building permits, applicant shall obtain a permit from MCPW to improve the Wiltsey Street subject property frontage with addition of 3 to 5-foot width gravel road shoulder with associated drainage earthwork and tree removal, depending on site-specific location and as field determined by the MCPW Engineering Inspector. Prior to final building inspection, applicant shall obtain MCPW Engineering inspection acceptance of that work. 5. Prior to or at the time of building permit application, applicant shall submit civil site plans showing grading and stormwater ma0agement, including permanent best management practices to prevent concentrated flow to MCPW for review and approval. 6. Prior to final inspection of building permits, applicant shall submit its final Stormwater Erosion and Sediment Control plan to minimize and mitigate soil erosion and compaction resulting from CU 15-035\0RDER - 24 COATES permits from the Marion construction of the photovoltaic solar power generation facility to MCDPW for review and approval, and shall implement the plaD. 7. Applicant's weed control plan requiring replanting disturbed soils with a weed-free local seed mix and committing to establishing a schedule of weed eradication and vegetation management activities sufficient to maintain a healthy and sustainable plant community on the project site for as long as the photovoltaic solar power generation facility remains on the property shall be submitted to Marion County DPW for review. 8. Applicant shall provide a site-specific, engineer-certified plan showing how the proposed solar facility will operate within the noise standard adopted as a part of this order. 9. Applicant shall submit a signed decommissioning plan agreeing that at the end of the useful life of the photovol taic solar power generation facility, and binding applicant or any successor to retiring the facility substantially in conformance with the decommissioning plan submitted with the application, including removing all non-utility owned equipment, conduits, structures, and foundations to a depth of at least three feet below grade at the end of the facility's useful life. 10. Applicant shall sign and submit a Farm/Forest Declaratory Statement to the Planning Division. This statement shall be recorded by applicant with the Marion County Clerk after it has been reviewed and signed by the Planning Director. 11. Applicant shall provide proof to the Marion County Planning Division that Turner Fire District has approved applicant's building access and premise identification plan. i2. Applicant shall submit a detailed final site plan accurately depicting all areas of OAR 660-033-0130(e) components, with accurate acreage calculations, and demonstrating that facility components take no more than 12 acres out of potential commercial agricultural production. Development shall significantly conform to the site plan, but minor variations from the site plan, but not the 12-acre standard, are permitted upon review and approval of the Planning Director. 12. Failure to continuously comply with conditions of approval may result in this approval being revoked by the Planning Director. Any revocation may be appealed to the county hearings officer for.a public hearing. 13. This conditional use shall be effective only when commenced within two years from the effective date of this order. If the right has not been exercised, or an extension granted, the CU 15-035\0RDER - 25 COATES variance shall be void. A written request for an extension of time filed with the director prior to the expiration of the variance shall extend the running of the variance period until the director acts on the request. VII. Other Permits The applicant herein is advised that the use of the property proposed in this application may require additional permits from other local, state or federal agencies. The Marion County land use review and approval process does not take the place of, or relieve the applicant of responsibility for, acquiring such other permits, or satisfy any restrictions or conditions thereon. The land use permit approved herein does not remove, alte·r or impair in any way any covenants or restrictions imposed on this property by deed or other instrument. VIII. Effective Date application approved herein shall become effective on the of February 2015, unless the Marion County Board of Commissioners, on their own motion or by appeal timely filed, is asked to review this order. In case of Board review, this order shall be stayed and shall be subject to such final action as is taken by the Board. (!lu The 11 ~ day IX. Appeal Rights An appeal of this decision may be taken by anyone aggrieved or affected by this order. An appeal must be filed with the Marion County Clerk (555 Court Street NE, Salem) by 5:00 p.m. on the day of February 2 016. The appeal must be in writing, must be filed in duplicate, must be accompanied by a payment of $500, and must state wherein this order fails to conform to the provisions of the applicable ordinance. If the Board denies the appeal, $300 of the appeal fee will be refunded. BJU (1(7-il DATED at Salem, Oregon, this day of January 2016. ) Ann M. Marion County Hearings Officer CU 15-035\0RDER - 26 COATES CERTIFICATE OF MAILING I hereby certify following persons: that I served the foregoing order on Don Kelley Kelley & Kelley 110 N 2nd St Silverton OR 97381 Agencies Notified Planning Division Public Works Engineering Building Inspection AAC Member No. 3 Turner Fire Department Vernon Coates 5205 South Bend Dr SE Salem, OR 97306 Jeffrey Webber 320 Lee St #905 Oakland, CA 94610 Mitch Teal 1418 Arabian Ave SE Salem, OR 97317 Mark Cheney 1219 Manzanita St NE Keizer, OR 97303 Susan Wheeler 3690 Wisper Ln SE Salem,. OR 97317 Margaret LaFrance 18626 Butteville Rd NE Aurora, OR 97002 Damien Hall 101 SW Main Ste 1100 Portland, OR 97204 Lew and Judy Garrison 3626 Wiltsey St SE Salem, OR 97317 Steve Gilchrist 755 Ironwood Dr SE Salem, OR 97306 Marlene and Jim Knieling 3791 Wiltsey St SE Salem, OR 97317 Wayne and Barbara Benson 4042 Wiltsey Lp SE Salem, OR 97317 Jim Andersen 6511 Coates Dr SE Salem, OR 97317 Bill and Judy Ogilvie 4045 America Way SE Salem, OR 97317 Stephen and Evelyn Lineburger 3302 Antigua Lane SE Salem, OR 97317 David Lockard 3305 Antigua Ln SE Salem, OR 97317 Caroline Childers Robert McDaniel 6336 Mahala Dr SE Salem, OR 97317 Laura Gallagher 495 Rural Ave S Salem, OR 97302 Tim and Leslie Edeblute 3770 Wiltsey St SE Salem, OR 97317 CU 15-035\0RDER - 27 COATES the Cassie Cooper 6132 Coates Dr SE Salem, OR 97317 Dan Schmidt 3524 Deer Lake Ct Salem, OR 97317 Joan and Patrick Gallagher 6248 31st Ave SE Salem, OR 97317 Waldon Brunson 6122 Coates Dr SE Salem, OR 97317 Rick Day 4025 America Way Salem, OR 97317 Jon Remy Jr. Turner Fire Chief 7605 3~ Street SE Turner, OR 97392 James Coates 6221 Coates Dr SE Salem, OR 97317 Friends of Marion County P.O. Box 3274 Salem, OR 973Q2 Dan Orzech c/o Damien Hall 101 SW Main Ste 1100 Portland, OR 97204 by mailing to them copies thereof. I further certify that said copies were placed in sealed envelopes, addressed as noted above, and deposited in the United States Post Office at Salem, Oregon, on the ~Jni day of January 2016, and that the postage thereon was prepaid. (1W,v~ Wrk\t~ Joann-a! Ritchie Secretary to Hearings Officer CO 15-035\0RDER - 28 COATES ZONING MAP Input Taxlot(s): 082W19B001 00 Owner Name: JAMES E COATES RLT & Situs Address: 6221 COATES DR SE City/State/Zip: SALEM, OR, 97317 Land Use Zone: SA School District: SALEM-KEIZER Fire District: TURNER Legend 0 Input Taxlots Highways Lakes & Rivers Cities N A scale: i in Marion County Planning, 503-588-5038 =638 ft DISCLAIMER: This map was produced from Marion County Assessor's geographic database. This database is maintained for assessment purposes only. The data provided hereon may be inaccurate or out of date and any person or entity who relies on this information for any purpose whatsoever does so solely at his or her own risk. In no way does Marion County warrant the accuracy, reliability, scale or timeliness of any data provided on this map. August17,2015