1991-35773-Minutes for Meeting November 06,1991 Recorded 11/21/1991-,
q(__3577
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DECISION ON BELL FENCE PERMIT
DESCHUTES COUNTY BOARD OF COMMISSIONE4;�, e�#r *OS
November 6, 1991
A, 4
Chairman Maudlin called the meeting to order at 1:05 p.m. Board
members in attendance were Dick Maudlin, Tom Throop and Nancy Pope
Schlangen. Also present were Bruce White, Assistant Legal Counsel;
Karen Green, Community Development Director; and George Read,
Planning Director.
The Commissioners held a public hearing on October 29, 1991,
regarding the issue of whether the land use permit LM -88-3
concerning Dr. Bell's fence on Johnson Road had expired. At the
end of the public hearing, the Commission postponed the decision to
this date.
Bruce White said that no matter what the County did, it wouldn't
make anybody happy, and the issue would end up in court. He felt
the process could have been handled better by the County, however
he felt this was really a "neighbor versus neighbor dispute." The
only reason the County was involved was because the concerned fence
was located in a landscape management (LM) zone. The purpose of
the LM zone was to protect the people traveling on Johnson Road and
not neighbor from neighbor. He said the hearings officer had
indicated that the LM zone would protect other than those who were
traveling on Johnson Road, however Mr. White felt this was wrong.
He didn't believe the section of fence in front of the Schob's
house which blocked the view was reviewable under the LM zone
because it was not visible from Johnson Road. He did not feel that
the level of completion was an issue. Staff felt that the one year
time period was suspended. There was no argument as to whether
anyone had authority to give an extension because the one year time
never finished running, because it was suspended by the stop work
order. Under the terms of the stop work order, it didn't state
that it applied to any particular size fence --just to stop work on
the structure or use. Concerning the question of whether Dr. Bell
could have gone ahead with a 6 -foot fence in violation of the stop
work order, Mr. White said that perhaps he could have if he had
gone to the county and had the stop work order lifted by indicating
he was going to build a 6 -foot fence. He said it was hard to look
at this case without realizing that this was a collateral attack by
the Schobs on issues that they could have raised in their appeal
but chose not to do so. The County had told Dr. Bell and consulted
with the Schob's attorney during the process of litigation, that if
the fence were brought down to six feet it would be okay with the
County. The LM zone was to protect the public and there were
members of the public who testified against the fence, and he felt
the Board needed to weigh this also.�Y
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Commissioner Schlangen said she was particularly uncomfortable
during the hearing when County staff was interrogated by the
Schob's attorney. She personally did not like the fence and didn't
feel that the fence was built for livestock. Nevertheless, she
believed it was a legal fence. The permit in the LM zone was
issued in 1988, and the fence met the standards. She felt the
permit was valid and had not expired because the time was suspended
during the stop work order. She felt Dr. Bell's fence complied
with the laws governing it.
Commissioner Throop said he was going to take the opposite
position. He agreed that there may have been mistakes on the part
of County staff when the application was originally reviewed. He
also felt that regardless of the Board's decision, this issue would
have future legal proceedings. He felt it was important that the
Board not seek "a path of least resistance" but make the correct
decision. He felt strongly that the correct position was that the
fence that was litigated was the 8 -foot fence, that the valid
permit for the 6 -foot fence expired long before the commencement of
construction, and there was no attempt to seek an extension. He
concluded that the fence was built without the required permit and
was not a lawfully constructed fence. He felt the applicant should
now apply for a permit or the fence should be removed. He would
support a finding that the fence permit had expired.
Chairman Maudlin said he tried to eliminate the other factors and
decide whether the permit had expired. Dr. Bell had a permit, then
the County put up a stop work order, Dr. Bell filed in court, and
the stop work order remained in effect. He felt there was a
suspension in time for the permit during the court proceeding.
When the Circuit Court determined they had no jurisdiction, the
fence was built to the six foot standard which was what the County
had agreed to all along. He felt there was a suspension in time
because of the stop work order and the permit had not expired.
SCHLANGEN: I will make the motion that the permit on LM -88-3
had not expired on the Bell fence.
MAUDLIN: I'll second the motion.
Commissioner Throop said it was "a sad day in Deschutes County when
a neighbor can do that to another neighbor." He hoped that the
Schobs did prevail at LUBA and the courts.
VOTE: THROOP: NO
SCHLANGEN: YES
MAUDLIN: YES
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DESCHU COUNTY BOARD OF COMMISSIONERS
To Throo , Commission r
Nancy Pope S la gen, Commissioer
Dick Maudlin, Chairman
BOCC:alb
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