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1991-36533-Minutes for Meeting October 29,1991 Recorded 12/5/199191-36533 PUBLIC HEARING MINUTES' STATUS OF BELL FENCE PERMIT r o DESCHUTES COUNTY BOARD OF COMMISSIONERS ICD October 29, 19 91 0108 ..,0495 Chairman Maudlin called the public hearing to order at 10:10-a.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 Department Director; and George Read, Planning Director. Before the Board was a public hearing to consider whether the land use permit (LM 88-3) concerning Dr. Bell's fence on Johnson Road had expired. Chairman Maudlin asked whether any members of the Board had had any ex parte contacts concerning this matter. The members of the Board said they had had none. Bruce White mentioned that the only contacts the Board had received were through letters from constituents which were a part of the file and were not considered ex parte contacts. Chairman Maudlin asked if there was anyone from the audience who wished to challenge any member of the Board's right to hear this matter. There were no challenges. Chairman Maudlin opened the public hearing and asked for a staff report. Bruce White said the reason this issue was back before the Board was that state law required the County to provide an opportunity for public comment when there was some kind of discretionary decision being made. In this case, the Board made a decision back in August 1991, that the land use permit for Mr. Bell's fence had not expired and that his fence had been built in conformance with that permit and was, therefore, a valid land use. The purpose of today's hearing was to focus on the issue of whether the permit did, in fact, expire and whether the land use permit conditions were adhered to when Dr. Bell built his fence. Commissioner Throop pointed out that he did not sign the August 9, 1991, letter because he was not prepared to assert that position at that time. Chairman Maudlin asked for testimony from Dr. Bell's attorney. Bill Gary, 101 E Broadway, Eugene, 97402, testified that he was the attorney for John Bell. He submitted a manilla folder full of materials marked items 1-10 for the record. He felt this proceeding was confusing. When Mr. Hendrix referred to Dr. Bell as the applicant in his submission to the Board, he was incorrect. Dr. Bell was not the applicant before the Board because he did not initiate this proceeding and was participating only because the PAGE 1 MINUTES: 10-29-91 IK JAN 2'2 K-,-YTiNCfIED Eiw� 1. 1. 1991 0108 0496 proceeding involved his property. They did not concede that this issue was properly before the Board or that there were any land use decisions which the Board needed to make. They learned the Board was considering the status of the landscape management permit for the first time on August 9, 1991, or shortly thereafter when they received the letter signed by two of the three County Commissioners indicating their conclusion that the landscape management permit was still in effect. There had been no prior knowledge that this matter was under consideration by the County. He felt that it was "perfectly clear by the fact that we're here this morning, that there have been ex parte communications with County staff and, presumably, that those have in some way been directed to you to bring you here..." The August 9, 1991, notified them of a hearing scheduled for later in August, and they contacted County Counsel regarding defects in the notice they had received. The major defect being that the notice was not timely under the statutes ORS 197.763 (3). Therefore the hearing was postponed to today's date. The only notice that his office received, was a telephone call from Mr. Hendrix indicating that the hearing had been schedule for today which was followed up by a letter from Mr. Hendrix. Therefore, Dr. Bell does not concede he was attending with proper notice as required by the statute. In addition to the timing of the notice, they felt the requirement that they be informed of the issues being considered at the hearing and the standards to be applied was also not met. The August 9, 1991, notice indicated that the hearing would be solely directed to the question of whether the landscape management permit which was issued three years ago had expired. He thought he heard County Counsel indicating that the issues were whether the permit had expired and also whether the land use conditions that were attached by virtue of that permit were met. He did not come to the hearing prepared to address the subject of whether the landscape permit conditions had been met, and they had never been notified that this was an issue being considered. Also he thought the Commission Chair had represented that this public hearing was to allow the public to address whatever concerns they might have regarding the fence. They took exception to the notion that this hearing, with the notice that they received, could be a "free for all." ORS 197.763 required that the notice indicate the applicable criteria to be applied, and that the applicable criteria be summarized at the beginning of the land use hearing. He did not feel that the criteria were described in the notice nor did he feel they were adequately described at this hearing. They felt the applicable criteria to the question of whether the permit expired were contained in Section 11.080(e) of PL -15. The permit was issued pursuant to PL -15, and the question of the duration of the permit had to be addressed under that ordinance which said "a permit issued under PL -15 is valid so long as it is exercised within one year." He felt the question then was whether the permit had been "exercised." He felt that any arguments by Mr. Hendrix regarding what other ordinances might say were beside the point. PL -15 did not require that the fence be completed with one year. Dr. Bell was confused by the need for today's proceeding because PAGE 2 MINUTES: 10-29-91 0108 049'7 this fence was the subject of an application for a permit which was filed on March 3, 1988, and he obtained the permit and started work around March 10, 1988. The original permit was for an eight -foot fence and when applying, he asked the Planning staff specifically to apply the criteria of PL -15 and informed the Planning staff that the fence was located in an landscape management zone. After the permit was issued, the Planning staff rescinded the permit and issued a revised permit in April. Commissioner Throop asked Mr. Gary how he knew that Dr. Bell informed the Planning staff that the application was for a parcel within the landscape management zone. Mr. Gary said Dr. Bell had told him that plus it was also a stipulated fact in the case which Dr. Bell brought against Deschutes County involving the issuance of the Stop Work Order. He said Dr. Bell also told Planning staff that this would be a controversial fence, because it would not be pleasing to his neighbors and "forewarned them to please take care in the way that they reviewed the application." Dr. Bell did everything that he could to ensure that he was acting consistent with the law. Mr. Gary said the building permit that Dr. Bell received was for an 8 -foot fence. A building permit was not required for a 6 -foot fence, however he thought it could be argued that a landscape management permit was required either way. Under the code, when a building permit was required, the landscape management permit process was contained in the building code process. The permit for the 8 -foot fence was rescinded, and he was given a revised landscape management permit for a 6 -foot fence, painted a neutral color. Dr. Bell could bring up a number of issues involved with the issuance of the revised landscape permit, i.e. whether the County had the authority to rescind the initial permit and modify it, whether a fence was subject to landscape management permitting, however they felt the time for Dr. Bell to have raised those objections was at the time the County took the action. Dr. Bell did initiate litigation because at the time the revised permit was issued, a stop work order was attached to the fence which directed that no further work was to be performed on the fence. Litigation took a considerable about of time to complete. The suite to lift the Stop Work Order and determine the validity of the landscape management decision was initiated on June 23, 1988. The Circuit Court concluded that it did not have jurisdiction over the land use decision, however it did have jurisdiction to decide whether the Stop Work Order was lawfully issued. On February 24, 1991, the judge concluded that the Stop Work Order was unlawful. When Dr. Bell prevailed in this lawsuit, he resumed work on the fence. He made the decision to comply with the revised landscape management permit which allowed a 6 -foot fence painted a neutral color. He then asked the County staff to inspect the fence which the County refused to do. The next pertinent event was the August 9, 1991, notice that the County Commissioners had decided that the permit was still valid. There were at least three reasons why the County PAGE 3 MINUTES: 10-29-91 f f: f ': Commissioners were correct to conclude that the landscape management permit was still valid: (1) under Section 11.080(e) of the code, Dr. Bell "exercised" the permit within one year. He felt the question of what "exercised" meant would be determined by looking at the purpose of the permit. The purpose of the permit was to allow construction to be commenced, therefore they "exercised" the permit the first time they began work on the fence. There was nothing in the code to saying that the construction project had to be completed within one year. Therefore, they felt there was nothing for the County Commission to be deciding. ( 2 ) He cautioned the Commission not to construe the code to produce the result that an unlawful Stop Work Order issued by the County could defeat the right of the applicant to comply with the requirements of a permit which the County had issued. Dr. Bell was stifled in his attempt to complete the fence for over two years as a result of a Stop Work Order which the Circuit Court had determined was unlawful. He said the doctrine of estoppel would prevent the County from now saying the permit had expired, because they could not raise the effect of the stop work order as a means to disadvantage Dr. Bell further. (3) He said there was also the implied provision in the code that when a Stop Work Order was issued, it created a gap in the year. Implied in the Code were the provisions of the Constitution and the Statutes of Oregon, and it would violate the land use laws and the Constitution for the County to take the position that its code permitted the County to impose the effect of an unlawfully issued Stop Work Order. Mr. Gary continued with what he said "was really going on here." Dr. Bell built a fence pursuant to a permit, the permit was revised, the Schobs or anyone else who was adversely affected had an opportunity to file an appeal to LUBA (Land Use Board of Appeal), but they didn't. Three years later, when the fence was completed and they could see the effect of the fence, they were unhappy and hired an attorney to convince the Board of Commissioners to make another land use decision ("to give the Schobs another bite at the apple") and open up the whole issue again. The principle of the land use laws in this state were to provide finality and decision-making in a timely manner. If Mr. Schob or anyone else was entitled to question the landscape management permit now, Dr. Bell was entitled to question the process that got to that revised landscape management permit, and he was entitled to questions whether a fence was subject to landscape management review at all. Doing this would just take everyone's time and money. "The whole purpose of the land use laws was to avoid being here three years after the fact, arguing about issues that the parties let lapse three years ago." He requested that the Board recognize the "can of worms" that they were being asked to reopen. Dr. Bell did everything within his power to comply with the letter and the spirit of the land use laws, and there was no evidence that Dr. Bell had done anything other than build a fence in strict compliance with the County's recent position on what would satisfy land use laws. PAGE 4 MINUTES: 10-29-91 Bruce White indicated that in his remarks, Mr. Gary referred to the decision the County made on August 9, 1991, which did, in fact, state that the issues would be limited to whether the land use permit had expired. Any statement by himself or the Board to indicate that the issues were broader than that "may have been made in error." The language in the announcement regarding having to bring up all issues at this level in order to appeal them to LUBA was prescribed by Chapter 197.763, and he felt should be read to say, Failure to raise any argument concerning the subject of the hearing precludes raising a similar argument at a later date." John Bell, 63727 Johnson Road, testified that he owned the property and built the fence in question. He thought the facts were clear and the paper trail was strong. He took extraordinary measures in this case to make absolutely certain that he was building a legal fence. Before he applied for the building permit, he had three meetings with the Planning Department. During the first meeting, he asked if he needed any kind of permit to build a fence in a landscape management zone, and was told that he did not need any kind of permit to build a six-foot fence anywhere in Deschutes County including a landscape management zone. So he started working on the fence on October 1987 without any permits. He then decided that this fence would not meet his needs, so he met with the Planning Department again. He indicated he wanted to build a fence higher than six feet, and was told he would need a building permit and a letter from the Department of Fish and Wildlife stating the fence would not interfere with the deer migration. He spoke with Fish and Wildlife and obtained a letter from them. He then had a third meeting with the Building Department, when he showed them his plans and blue prints for a eight -foot fence. He actually intended to build a seven -foot fence, however he requested a permit for an eight -foot fence so that he would be "well within the law." He again asked if he needed a landscape management permit because he was in a landscape management zone, and was again told no that he just needed a building permit. He also told the County that this fence would be controversial and asked them to go over his request "with a fine tooth comb." He pointed out that everything he was saying was agreed to in writing on the Stipulated Facts which Karen Green had prepared. He resumed building his fence, and 38 days after he received his building permit, Bill Gibson told him he was building an illegal fence. When he asked what was illegal about his fence, Bill Gibson said it looked like it was over six -feet tall and, therefore, needed a building permit. He showed Mr. Gibson his permit and blue prints, and hi comment was "this is the most legal fence he has ever seen." He was stopped from working on his fence for three years. He did not start working on the fence again until Judge Mosgrove ruled "that the County acted erroneously." Commissioner Throop asked what his intended purpose was for the fence. Mr. Bell said he planned to raise deer, and that Fish and Wildlife had stated that to raise deer you needed a minimum of a 7 - PAGE 5 MINUTES: 10-29-91 0108 0500 foot 6 -inch fence. However they would honor a 7 -foot fence to raise deer. He had a letter from a deer raiser dated three weeks prior to submitting plans for a building permit, which stated that he needed this kind of a fence. Commissioner Throop asked if the 7 -foot fence would go around his entire property. Mr. Bell said it would but it would not be a solid fence. Commissioner Throop asked how much of the fence was currently completed, and Mr. Bell said 25% (all on the east side) . Commissioner Throop asked Mr. Bell how he selected where the fence would go on the east side of the property. Dr. Bell said the irrigation district had an easement 50 -feet within his property line where he couldn't build. He couldn't build in his field because if would interfere with his alfalfa operation. He determined the only logical location was to put it on the rock pile where he could anchor the fence into the rock. The fence was being built 75 feet within his property line. Commissioner Throop asked why it would be a multiple style fence. Dr. Bell said the side of the property where the existing fence was located was open property. He lived in a deer range, and he felt if he bought an exotic deer herd and people could see them from the canal road, the deer would be shot. The east side was the only side of his property that had this visual issue. Lee Fischer, PO Box 6892, Bend, OR 97708, general contractor and personal friend of John Bell, testified that he had been involved in the fence from the beginning. From a builder's point of view, he thought it would be "a shame" if every time they got red -tagged, the permit "was killed." In his last job, the permits were $14,000, and he wouldn't want to buy them twice. If the County tried to do that, the builders would have the County in court all the time. He said the fence complied with the building code, and that it didn't make any difference why the fence was being built because there was a legal permit. The law stated "that a permit, once started, as long as there shows continuous work on it, is allowed to exist for whatever duration of time it takes to complete the project." He said some of his projects take 2-4 years to build. He felt that the looks of the fence had nothing to do with the building codes. He didn't think that people should get their way just because they didn't like the looks of what someone else had lawfully constructed. Ted C. Lyster, 63755 Johnson Road, PO Box 28, Bend, 97709, testified that he was a neighbor of Dr. Bell's and the former owner of Dr. Bell's property. He read the beginning of the hearing notice regarding the testimony being limited to the issue of whether the building permit had expired. Because of this notice, he came prepared to testify on only this one issue. He felt Dr. Bell had taken all of the legal steps necessary to satisfy the regulations concerning the construction of the fence. He didn't feel that the intent of the fence had any bearing on this proceeding, however last summer Dr. Bell had spoken with his son about the possible continuation of the fence for the purpose of raising exotic wild life. PAGE 6 MINUTES: 10-29-91 0108 0501 Joe Floyd, 63719 Johnson Rd. Bend, 97701, testified that he was an immediate neighbor of Dr. Bell and Mr. Schob to the south. He interpreted the notice of public hearing to mean that the testimony would be limited to the issue of the expiration of the permit. He felt it was extremely unfair to ask Dr. Bell for his reasons for building the fence which put him on the defensive. If the purpose of the hearing was to determined whether or not the permit had expired, the reason for the fence was moot. He read the letter he had submitted into the record, which indicated that six of the eight surrounding property owners were in support of the fence based upon the law. It was his opinion, from living in farm country and growing up on a ranch, that "you don't do this to your neighbor." He recommended that the Board approve the fence. An August 14, 1991, letter was selectively distributed by the Schobs to areas removed from then neighborhood i.e. Tumalo Rim, Saddle Back area, because those who knew the complete story of the fence would not be deceived by the errors and misrepresentations of fact in that letter. The letter said that the Deschutes County Planning Department operated on a complaint driven system, and he felt this was shocking. The Planning Department should be law driven not complaint driven. Commissioner Throop asked what Mr. Floyd's motivation was in supporting the fence. Mr. Floyd said he supported the process Dr. Bell went through. Commissioner Throop asked whether he had supported the fence when Dr. Bell discussed it with the neighbors before getting the permit. Mr. Floyd said it was his firm opinion that anyone living in an agricultural area had a right to construct a fence to conduct agricultural activities, regardless of who liked the looks of the fence. He said the fence did not affect him one way or the other. "If you live in a farm zone, you should be able to build fence." Bruce White made clear that the litigation file in this matter was part of the land use hearing record. Greg Hendrix, land use attorney, representing the Schobs, said there was a number of letters submitted on this issue and asked if they were part of the record, and Chairman Maudlin said they were. He felt this hearing was concerning a timely complaint being made upon an expired permit. He said the County was required to give notice when they were going to make discretionary decisions, which they had done. He disagreed that the existing fence met the permit, however they were here solely on the issue that the permit had expired, and there was no provision in state law which Dr. Bell had complied with that would extend the permit. He felt it was important that the Board understand that Judge Mosgrove did not say the County could not enforce land use laws. Judge Mosgrove said the County could not use a stop work order as a land use enforcement tool, and that he did not have jurisdiction to determine the other land use uses raised by Dr. Bell. Dr. Bell's argument was that he had a permit, a stop work order was issued and PAGE 7 MINUTES: 10-29-91 0108 0502 remained in effect until February 1991, when he resumed work on the fence thus extending the fence permit. Mr. Hendrix said the ordinance stated that if someone wanted to extend the permit, they had to apply in writing, and the Planning Director had to issue a decision to extend the permit. There was no other way to extend the permit. The Schobs felt the permit had expired long ago and that the continued construction on the fence was therefore illegal. Mr. Hendrix said the Schobs' argument was that the permit was to build a 6 -foot fence, while the stop work order applied to an 8 - foot fence. Dr. Bell's litigation against the County applied to an 8 -foot fence. He said this was shown by Dr. Bell's complaint which was filed in Circuit Court, the various letters he submitted to the County, and the statements he made in his deposition. He asked that a copy of the deposition be made a part of the record since he was going to refer to it. The lawsuit was not to extend or question the findings on the 6 -foot fence, but was to continue construction on an 8 -foot fence. When the lawsuit was terminated, Dr. Bell's attorney, Bill Gary, sent a letter to Karen Green stating that it was Dr. Bell's position and intention to continue construction under the original permit, i.e. the 8 -foot fence. Dr. Bell should not be able to say now that the stop work order, which did not apply to the 6 -foot fence permit, "tolled the expiration dated on his permit." Dr. Bell sued the County in the wrong forum about an 8 -fence for three years, then when he found he was in the wrong court, he came back to the County and tried to contend that the permit was stopped by a stop work order. Concerning the language "exercised within one year," Mr. Hendrix said that the only thing that was exercised within one year was putting up a framework. If that was exercising a permit, then one option for the County would be to tell Dr. Bell to return the fence to the framework only. Dr. Bell started construction on a fence and was stopped, he then sued in the wrong court to establish his right to an 8 -foot fence, and three years later he found he didn't have the right to build an 8 -foot fence, and now he was seeking to come back under the original 6 -foot fence permit which was not affected by the stop work order. The Schobs were not raising the issue of whether the original permit was correctly granted, however they felt Dr. Bell should have to strictly comply with all the law, and therefore the fence would have to be constructed within one year under the terms of the permit. Dr. Bell did not seek to have a review of the 6 -foot fence, and the stop work order, being a building work order, could only apply to the 8 -foot fence. Mr. Hendrix said he did not feel Dr. Bell was being candid with the Board when he said he was constructing the fence so he could raise deer. In Dr. Bell's deposition, he stated that privacy was the reason for the fence. Dr. Bell didn't like the fact that from the third floor of the Schobs' home, they could see into his alfalfa field. If the Board made a decision in favor of the Schobs, he did not feel that the builders of the community would complain about the red tag process as had been threatened earlier. The issue was that there was a permit granted, it was not exercised, the fence was not substantially completed in the period of time, and PAGE 8 MINUTES: 10-29-91 0108 0503 therefore, under the law, the permit had expired. He said the Circuit Court had not reinstated the permit as had been intimated. Circuit Court said that it had no jurisdiction and that a stop work order was not a proper enforcement method. Mr. Floyd had stated that "you don't do this to a neighbor." Mr. Hendrix said that another thing you didn't do to a neighbor was apply to have a pig pen put 75 feet from their deck, or attempt to site a chicken coop in the same approximate location, or sue them three years after they were living in their house to have their house torn down, or make wild accusations that they had poisoned you poplar trees, or plant fast growing tree with the sole purpose of causing financial loss by blocking their view of the mountains. Those were all things that Dr. Bell had done to the Schobs. The letter written by the Schobs which Mr. Floyd referred to was accurate. The County enforcement issues were complaint driven. The fence was not an agricultural fence, there had been no movement to enclose the property with the fence or have deer on the property. In the deposition, Dr. Bell said he wasn't sure what he was going to do. Mr. Hendrix said he had some questions for staff and Chairman Maudlin said he could ask staff questions directly. Mr. Hendrix asked Karen Green, Community Development Department Director, if at the time of the Bell v. Deschutes County lawsuit, she was the Assistant County Counsel and the primary attorney involved in that lawsuit. Karen Green said she was and that she was familiar with the litigation that the County handled and had some familiarity with the fence permit issues. Mr. Hendrix asked if she had seen George Read's letter to him of September 16, 1991, and if she agreed with Mr. Read's statements, and Ms. Green said yes. Mr. Hendrix asked if she agreed with his statement that Judge Mosgrove did not prohibit the County from taking any enforcement action regarding the fence in the landscape management zone. Ms. Green said it was her opinion that he did not. Mr. Hendrix asked if it were also her opinion that Judge Mosgrove stated that a stop work order was not a property tool for land use enforcement. Ms. Green said she would not agree with that statement. She read the Judge's opinion to say that the County did not have the authority to issue the stop work order, not whether it was proper or improper. Mr. Hendrix asked if Judge Mosgrove made any ruling on whether other enforcement tools were available to Deschutes County. Ms. Green said she didn't believe he did. Mr. Hendrix asked if Dr. Bell had stipulated that he was aware that no building permit was required for a 6 -foot. Ms. Green said that what the County and Dr. Bell stipulated to was that Dr. Bell was advised that no permit was required. Mr. Hendrix asked if she agreed that the lawsuit was regarding Dr. Bell's ability to build and 8 -foot fence. Ms. Green said yes. Mr. Hendrix asked if what Dr. Bell sought as relief in that lawsuit was that the March 7, 1988, permit for the 8 -foot fence was valid. Ms. Green said Dr. Bell requested a declaration that the original building permit governed the construction of this fence and that was for an 8 -foot fence. Mr. Hendrix asked if the other relief that Dr. Bell requested was an injunction to stop PAGE 9 MINUTES: 10-29-91 0108 0504 further stop work orders. Ms. Green said that was correct. Mr. Hendrix asked if a temporary restraining order was ever requested or granted by Dr. Bell? Ms. Green said no. Mr. Hendrix asked what the process was for issuing a stop work order and having it rescinded. Ms. Green said she could answer in terms of practice but was not sure what the building code said. She said if a stop work order was issued for failure to obtain a permit, it was lifted when a permit was obtained. If it were issued because of a violation of the code, it was rescinded when the code was complied with. Mr. Hendrix asked if there was a formal document which was issued when rescinding a stop work order. Ms. Green said no, not under the building code. Mr. Hendrix asked how one would know that the stop work order had been rescinded. Ms. Green said the parties involved were advised verbally, and the fact was entered into the computer. Mr. Hendrix asked if Dr. Bell had built a 6 -foot fence of neutral color on top of that 15 foot man-made berm in 1988 or 1989, would he have been stopped from doing so? Ms. Green said she couldn't answer that. Mr. Hendrix asked why. Ms. Green said she couldn't speculate on what they might have done in 1988 under those set of facts. Mr. Hendrix asked whether it was true that once Craig Smith issued his decision, Dr. Bell had a right to build a 6 - foot fence of neutral color. Ms. Green said the County would not have taken any action if Dr. Bell had built a fence in compliance with that decision. Mr. Hendrix asked if in stipulation #12, Dr. Bell stated that he had expended approximately $3,000 and 100 hours on the fence on April 13, 1988. Ms. Green said yes, that was what the stipulation said. Mr. Hendrix asked if County Counsel Rick Isham had offered Dr. Bell's then attorney Bob Lovlien $4,500 to reimburse Dr. Bell for attorney fees and materials. Ms. Green said that an offer was made to settle on behalf of the County. Commissioner Throop asked that this offer be explained further. Mr. Hendrix said that at about the time that Dr. Bell sued the County indicating he had $3,000 and 100 man-hours in the fence, the County made him an offer of $4,500 to stop. Mr. Hendrix felt that Dr. Bell would have also had the right to build the 6 -foot fence. Ms. Green pointed out that the correct figure was $3,500. Mr. Hendrix asked if there had been any work done on the fence between April of 1988 and March of 1991. Ms. Green said she was not aware of any. He asked if she agreed that the fence was in the landscape management zone. Ms. Green said yes. Mr. Hendrix asked if she agreed that Dr. Bell had not applied for any extension. Ms. Green said yes. He asked if it were her opinion that the ordinance in effect at the time of the permit required that the fence be substantially completed or the permit exercised within one year. Ms. Green said there was "an ordinance that so provides, yes." Commission Throop asked if there was a difference between the two. Ms. Green said that was an ordinance that applied to this situation. Mr. Hendrix asked what else she thought applied. Ms. Green said there were other ordinances which applied to stop work orders. Commissioner Throop asked if there was a difference between the two statements of "exercised" and "substantially PAGE 10 MINUTES: 10-29-91 0308 0505 completed." Ms. Green said George Read would be a better person to answer that question. Bruce White interjected that he did not feel that the County should turn every land use process into an interrogation of staff. He didn't want this to set some kind of precedent for the way in which cases were handled in the future. Chairman Maudlin said he was not totally comfortable with this form of questioning, however he wanted to get to the bottom of these issues. Mr. Hendrix asked Mr. Read what the staff's policy on land use permits was and how they were exercised. Mr. Read said he didn't know in terms of how a permit was started, however it was generally linked to a building permit. The issuance of a building permit and keeping a building permit valid was how the permits were linked. "As long as there was a valid building permit based upon the land use approval, that's the condition." The duration of the permit was established by the procedures ordinance which stated that one year or more may be granted at the time of the decision which made it specific to an application. Commissioner Throop asked if "exercised" and "substantially completed" had the same meaning. George Read said that wasn't how they considered it and wasn't an issue he had ever had to consider. Bruce White said that exercised and substantially completed were not terms which were included in the permit duration section of the procedures ordinance, which said that it would be valid for a period of one year, unless a longer duration was granted as part of the approval. The one-year period would run from the day of land use approval until it was no longer appealable. Under the next section on approval extension, there was a provision whereby an approval could be extended. It had been staff's position throughout that the procedures ordinance controlled on this issue and not the provisions on PL -15. Commissioner Throop asked, based upon the Procedures Ordinance, if someone initiated work, how long they would have to complete it. Bruce White said that was not explicit in the code, so if a person was in doubt, they needed to get an extension. Mr. White said the current issue was not whether an extension was applied for but whether the actual time period was suspended. Mr. Hendrix asked Mr. White if he agreed that nothing in the ordinance suspended the time for filing a lawsuit in the wrong court. Mr. White said the issues involved were also issues of equity, and issues concerning estoppel, common law principles which did not necessarily need to be embodied in an ordinance, however were legal issues on which the Board could hear arguments. Mr. Hendrix said that one of the principles of estoppel was that there had to be "reasonable reliance" and asked what the reliance would be for filing a law suit to have an 8 -foot fence permit reinstated. Mr. White said he understood Mr. Hendrix' testimony to indicate there was no reliance. Mr. Hendrix asked Ms. Green if Dr. Bell ever needed a building permit for a 6 -foot fence. Ms. Green said she couldn't say that PAGE 11 MINUTES: 10-29-91 0108 0506 there was no 6 -foot fence that would have required a building permit, however if he meant the existing fence, she said no, he would not need a building permit. Laurie Schob, 63721 Johnson Road, said she assisted in the preparation of a time line chart which was going to be discussed. She said she had read the two memorandums which Mr. Hendrix submitted to the County, and that the information contained therein was correct. Mr. Hendrix asked her if there was any work performed on the fence between June of 1988 and March of 1991. She said before March of 1991 only the metal framing existed on the fence. Mr. Hendrix submitted photo #1 which was what existed before March of 1991. Mr. Hendrix asked Ms. Schob if photos #2, #3, #4, #5, and #6 were accurate representations of the fence as it was constructed at the beginning of this year. Ms. Schob said they were, however since that time the white metal had been painted a tan brown and the edges had been trimmed off. He asked if photo #6 was from the third story of her house and she said yes. The others were taken from different locations. He asked if she were present at Dr. Bell's deposition in his office on May 14, 1991, and she said she was. He asked what her recollection was of what Dr. Bell said about being finished with the fence. Ms. Schob said that Dr. Bell said he wasn't sure about the fence, that he thought he might trim it down a little bit. He said it would be a big hassle to get up on the rock berm and paint the white which was facing the Schobs' property. He asked her if Dr. Bell sued her regarding the location of her home. She said yes, that suit was issued in the spring of 1989 when they had been in their home for 1-1/2 to 2 years. That lawsuit was still ongoing. She said Dr. Bell stated that because of where the Schobs had placed their home, he had no privacy. He said he wanted to be out in his field without the Schobs being able to see him. Mr. Hendrix asked if Ms. Schob could see Dr. Bell's home from her home before the fence was built. Ms. Schob said she could see the roof of Dr. Bell's home from the top floor of her home. She said they sued Dr. Bell to tear down the fence, and they asked for punitive damages in order to get Dr. Bell to stop the harassment which they had been experiencing, including attempting to place a pig pen between the fence and their deck, having a chicken coop in a similar location, planting trees to block their view, and telling people that they had attempted to poison his trees. She spoke with Dr. Bell concerning his request for a pig pen so close to their property, and Dr. Bell stated that "it was common practice when you had a beef with your neighbor to put a pig pen in a location that would be disturbing to your neighbors." The appeal by the Schobs was upheld. Between April 19 and June 13, 1991, she said nothing happened with the white fence until the Schobs sued Dr. Bell. After they sued, the fence was trimmed and painted the brown color. Prior to suing Dr. Bell in approximately April of 1991, she said they had complained to the County Commission about the fence and whether the permit had expired. She said the berm was created when they blasted the canal out approximately 50-60 years ago. PAGE 12 MINUTES: 10-29-91 0108 050'7 Bruce White interjected that the hearing had been limited to the duration of the permit and reminded the Commission of that fact. Mr. Hendrix argued that this testimony was relevant because it showed a pattern by Dr. Bell of not complying with law as he stated in his testimony, but was interested in harassing the Schobs for building a house which looked into his field. Mr. Hendrix felt this was relevant to whether he was seeking to have that 6 -foot fence permit extended while he argued in the wrong court about an 8 -foot fence. Mrs. Schob said that Dr. Bell was not interested in fences, pig pens, chicken coops or planting poplar trees until the Schobs built on their property. She did not feel that the fence was being built to hold in deer. Mr. Hendrix said the entire purpose of Dr. Bell's lawsuit was to regain his 8 -foot permit and in February of this year, Judge Mosgrove ruled that he had no jurisdiction to decided whether a 6 - foot or an 8 -foot fence was proper. Now Dr. Bell was contending that the original 6 -foot fence permit remained in effect all of this time while he went to the wrong court. Chairman Maudlin asked if between 6-28-88 and 2-28-91, Dr. Bell was aware that he was suing in the wrong court. Mr. Hendrix said he did not know, but that the County had made an argument earlier that the Circuit Court did not have jurisdiction over these issues. Obviously Dr. Bell was getting advise from his attorneys that he was in the proper court. Mr. Hendrix said the point was that Dr. Bell always could have built a 6 -foot fence during that period of time, but he didn't want to because he wanted to build an 8 -foot fence. On September 5 of this year, because of the Sauvie Island case, the Schobs dismissed their lawsuit on the fence. Their only option to look at this illegal fence was to have a ruling by this Commission. Commissioner Throop asked if the Schobs objected to the original permit in 1988. Mr. Hendrix said it was probably not relevant but he would answer. The Schobs requested that their attorney file an appeal to the original permit, but because of a mistake on the part of the attorney, the appeal was not filed on time. Dennis McKenna, testified that he had lived in Bend since 1974 and had driven down Johnson Road a number of times. He was a personal friend of Mr. Schob. He understood that when a permit was requested within a landscape management zone there was a notice of proposed land use action, and he thought Mr. Read had said that such a notice was never posted when this permit was applied for. Chairman Maudlin said he wasn't sure whether anybody knew, but the file indicated that everybody agreed that it wasn't necessary so it wasn't done. Bruce White said Mr. McKenna was correct but that it was not relevant to the hearing. Mr. McKenna said that one of the reasons he lived in Oregon was because of the land use law, and he felt there should have been public notice that a building permit was applied for in the landscape management zone. He didn't feel PAGE 13 MINUTES: 10-29-91 0108 0508 it was right that someone could build on top of a man-made berm. If someone wanted to build a 20 -foot fence, all they would have to do was pile up some dirt and build a 6 -foot fence on top of it. He felt what was really going on was harassment of the Schobs. He wondered if Dr. Bell's original building permit showed an enclosed fence to raise deer. He felt the Schobs had been damaged because the permit was originally issued without the proper notification to the public. He felt a mistake had been made when the original permit was issued. He asked the Commission to make the decision that would do the right thing for the public because the fence was an eyesore. Ralph McNulty said he had lived on Johnson Road for 22 years and was the past manager of the Tumalo Irrigation District. He could not recollect anybody coming to them in 1988 to ask for any right of ways or adjustments of easements on that property to build a fence, however Mr. Fischer and Dr. Bell did ask about putting a building on Tumalo Irrigation District's easement. They built their building about 15-18 feet closer to the ditch than what was recommended. He then got a call from Dr. Bell asking him to go to the Schob property and investigate the fact the Schobs were considering building a home on this property. They measured from the center of the canal back 51 feet 6 inches and drove a stake. When they started the house, he checked to make sure that the Schobs did not infringe upon irrigation district property. He went to the third floor of the Schobs' house while it was under construction, and he could see the roof of Dr. Bell's house but could not see his driveway or anything else. He felt that this fence was just to "agitate." Dr. Bell had been notified that he was not in compliance with Tumalo Irrigation District's easement, but he ignored it. He didn't want to take sides between his neighbors, but he got the feeling visiting with Dr. Bell that something was going to be constructed on a berm which was put there by Tumalo Irrigation District in the late 60's or early 70's when the Bureau of Reclamation did the realignment of the irrigation canal. He didn't agree with what Dr. Bell did on top of the berm. Commissioner Schlangen asked if the fence was on Tumalo Irrigation right of way. Mr. McNulty said he had since left the district and had not gone back to measure. His point was that easements did not seem to matter to Dr. Bell, because he was notified not to build his chicken house that close to the canal. Commissioner Schlangen asked if it were required that property owners get permission from the irrigation district before building a fence. Mr. McNulty said it was required for any fences or gates which were on or across the irrigation district's easement. She asked if Dr. Bell had applied to put up the fence. Mr. McNulty said not to the best of his recollection. Commissioner Throop asked if the fence was within the irrigation district right of way, and Mr. McNulty said he didn't know. Commissioner Throop asked if the rock pile where the fence was located was within the irrigation district easement. Mr. McNulty said he thought it was. Commissioner Throop asked if it PAGE 14 MINUTES: 10-29-91 010 0509 were within the easement, what would have been the procedure to get permission to construct the fence. Mr. McNulty said they would have needed to come to a Board meeting and present their plans. Commissioner Throop asked what the consequences would be if something was constructed without getting approval from the irrigation district. Mr. McNulty said other people within the irrigation district that had constructed fences across ditches and waterways were required to remove them or come into compliance with irrigation district code because of maintenance. Commissioner Throop asked if he had any idea what the code would be for a fence of this type. Mr. McNulty said no. John Steele, 18555 Wacton Road, Tumalo (Bend), wanted to testify regarding the unsightliness of the fence. When he drives down the road, he sees "a real ugly fence" blocking his view of the mountains. He felt it looked so bad that there was no way the County would allow it to be placed in this location. He felt this was "overkill." "A solid fence that blocks the view in the location it's located serves no practical use. It's a grudge fence" or a spite fence. Why should the rest of the County have to suffer because of this. He felt the County Commission represented all the residents of the County, and he didn't like it when Dr. Bell's attorney said the Commission had no jurisdiction in this matter. He resented it when some people who testified threatened the Commission with law suits. He didn't believe the fence was intended for deer, because he had seen deer jump a 10 -foot fence. He said his family drank the water that came out of the irrigation district, and he was upset to learn that Dr. Bell wanted to build a pig pen next to the canal. He didn't feel the fence should be allowed to remain because of a mistake or a legal technicality. The whole County should not have to suffer because of a conflict between neighbors. Bert Larson, 19977 Doubletree, Bend, business agent with the International Woodworkers of America, testified that he was a friend of the Schobs. He felt the fence was a eyesore and didn't like an attorney from outside the County making threats to the Commissioners. He felt the fence was put up for the sole purpose of harassing good neighbors. He felt the fence was infringing on the rights of County residents because it blocked everyone's view. Randal Moore testified that his property adjoined the subject property, and he had lived there for 40 years. He wanted it clarified where the measurement of the fence was taken, from the ground or on top of the berm. He said the rock berm had been there since 1945. He felt Tumalo Irrigation should remove the rock and then put the fence on the ground and "everything would be solved." Janet Allstoll, 20864 King David, Bend, 97702, testified that she was Laura Schob's mother and have been a realtor for 12 years. She said one of the drawing points of Bend was the outstanding mountain view which was at the top of the priority list of many home buyers. PAGE 15 MINUTES: 10-29-91 0108 0510 When looking to the west from the Schob home, your vision was drawn to the mountain view not the Bell property. In March of 1991, the Schobs requested a comparative market analysis on their property to get an objective opinion of the value of their property as it existed before the fence was built and after the fence was built. Since she was personally involved, she asked her broker to do it. The broker stated that the Schob property had been damaged somewhere between $20,000 and $30,000 by the construction of the Bell fence. She felt the fence was built just to harass the Schobs. Andy Schob, 63721 Johnson Road, testified that they built their home in the country to find some peace. He concurred with his attorney and his wife regarding the facts they had presented. When they decided where to build their home, Dr. Bell's home was a factor. The spot they chose gave them a mountain view from the top floor. They hadn't want to damage their relationship with their neighbors in pursuing this issue. They chose specifically not to involve the neighbors "out of respect for good will in the neighborhood." He had not discussed this issue with any of the neighbors during the three years they had lived there. He said there was a possible way this issue could be settled and each party could get what they were after. Dr. Bell could have their privacy and he and his wife would have the aesthetic and property value of their home restored. Dr. Bell's attorney suggested back in 1988, that the Schobs put a stain glass piece in their top floor window which faced west so that it would obscure the Schobs' view of the alfalfa field, but would permit the Schobs to see the tree tops and mountains. He felt that if the Commission disallowed this fence, it would push the issue toward an equitable solution. The intent of the landscape management zone ordinance was to protect the aesthetics of the area. The 6 -foot fence was on top of a 15-20 feet man-made berm, and he couldn't imagine the County approving it in this location. The fence was made of industrial siding and roofing material and was painted a light brown which did not match the green juniper trees and dark grey rocks in the immediate area. It was an eyesore from the road and from their house. He believed the original permit was issued in error and after 3-1/2 years, it was time to "right that error." Sufficient County residents had testified or submitted letters indicating their displeasure with the fence. He asked that the Board disallow this fence because it would enable the issue to be settled with each party's interests considered. Chairman Maudlin asked Mr. Schob the approximate distance from his house to the fence. Ms. Schob said his house was 50 feet from the center of the canal, and the fence was 50 feet or less on the other side of the canal, directly across from their house. Chairman Maudlin asked for rebuttal testimony. PAGE 16 MINUTES: 10-29-91 0108 0511 Bill Gary requested that pursuant to ORS 197.805(6) that the record in this matter be held open for a period of seven days. He felt that much of what had been said at this hearing had no bearing on the decision the Board needed to make. If any of his remarks were construed by the Commission as threats, he apologized. The law required him to state the items he believed were procedural and substantive errors. If he didn't raise them here, he couldn't raise them on appeal. ORS 197.763 specifically stated that comments made at a hearing were to address the criteria to be applied. Testimony regarding what the fence looked like, why it was built, what the motivation was, whether it was within the set back for the irrigation district, etc. did not address the criteria. The sole question before the Board was whether the landscape management permit had expired. The set back easement from the Tumalo Irrigation District was 50 feet, and the fence was 75 feet from the center of the canal. The Schob's residence was 140 feet from the fence. Commissioner Throop asked if the portion of the rock pile where the fence was located outside of the irrigation district easement, and the rock was owned by Dr. Bell. Mr. Gary said that was correct. The berm was constructed before Dr. Bell purchased the property and was the "natural state of the land" when Dr. Bell purchase the property. Mr. Gary said that Dr. Bell took great pride in describing himself as a physician, a farmer and a builder. Dr. Bell came to an EFU zone to be a farmer. He submitted a letter dated February 27, 1988, from a consultant regarding the size of fence that would be needed for raising fallow deer. Dr. Bell had spent the last 10 years developing a farm operation in an EFU zone. The Schobs chose to come and build their dream home on a 4-1/2 acre parcel in an EFU zone. Mr. Gary said that not one of the photographs submitted into the record depicted the fence as it appeared on that day which he felt was unfair. He took exception to a reference by Mr. Hendrix to an April work session of the Commission. He stated that Dr. Bell had no notice that the Commission was holding a work session or doing anything with respect to this issue until he received the August 9 letter. He said Mr. Hendrix described the law suit against the County as a law suit about an 8 -foot fence and the stop work order was about an 8 -foot fence. Mr. Hendrix described the judgement as a decision by the judge that Dr. Bell sued in the wrong court. Mr. Gary said the facts were that the stop work order did not say anything about an 8 -foot fence and the lawsuit was seeking a declaratory judgement against the County on a collection of issues. Primarily Dr. Bell wanted the court to declare that the County's initial permit was the permit under which he could operate, and that the revised permit was null and void. Dr. Bell also wanted the Court to declare that the stop work order was wrongfully issued and to have it rescinded. Initially, the Circuit Court concluded that it had jurisdiction in the matter to consider all of the issues. However, after 2-1/2 years of litigation, the judge reconsidered the question of his jurisdiction on the land use issue, i.e. which permit was in effect, but agreed with Dr. Bell that the Court did have jurisdiction to consider the validity of the stop work order PAGE 17 MINUTES: 10-29-91 0108 0512 and that the stop work order was improperly issued. Whether the stop work order was in effect was decided by the Circuit Court when it entered a judgement vacating it. Circuit Courts didn't vacate stop work orders or any other documents which were not in effect. What was left for the Commission to decide was what effect that would have on the land use permit which was issued earlier. Commissioner Throop asked about the issue of two separate fences. Mr. Gary said it was their position after the Circuit Court's order that Dr. Bell could have built an 8 -foot fence. However, he had advised Dr. Bell that if he did, the County would probably take the position that the most he could do would be to build according to the revised permit. Therefore, in order to avoid further controversy, he advised Dr. Bell comply with what the County had said was an acceptable fence. In doing that, Dr. Bell was not intentionally relinquishing any privilege he may have had to comply with the original permit. Dr. Bell "was attempting to surrender, or at least to walk away from the fight." The landscape management act was intended to protect scenic vistas from roadways (i.e. Johnson Road) and from riverways. So the question was not whether the fence would be offensive to the Schobs from their residence, because they did not have standing to insist on not having their view blocked by a fence in a agricultural zone. The decision regarding which kind of a fence would be built, what color and how high it would be was based upon what effect it would have on the people using Johnson Road. The County made the decision three years ago about what kind of a fence would comply with the landscape management zone, and the Schobs didn't appeal it. He said the land use laws were not an invitation to take a popular vote at a Commission hearing regarding who liked this building or fence. His request on behalf of Dr. Bell was that the Commission follow the law. Ted Lyster testified that he acquired the property (currently owned by Dr. Bell and the Schobs) in the early 1970s from the Tumalo Irrigation District. He understood that the rock pile was formed when the canal was initially built in 1917. He didn't think that the location of the rocks had any bearing on the irrigation district easement. Dr. Bell had no control over where the rocks were located. Commissioner Throop asked if he sold the respective properties to both parties. Mr. Lyster said no, but that he sold Dr. Bell his property and the other parcel was sold to another party who resold it to the Schobs. Commissioner Throop asked if when he held the Schob property if he had considered it a building site. Mr. Lyster said yes but not where the Schobs constructed their home. He felt the best place was on the north end of the property near a natural rock outcropping. Greg Hendrix testified that the photos were not of the completed fence, however the completed fence did not much differ from the photos. The photos where of how the fence looked when the Schobs filed their law suit to have the fence torn down, and requested PAGE 18 MINUTES: 10-29-91 0108 0513 assistance from the Commission in declaring the permit expired. He said the "mootness" did not occur in Circuit Court usually on the judges own motion but because one of the other parties raised it and there was nothing in the record to show that the issue of whether the stop work was or was not in effect was moot. He agreed with Mr. Gary that the Commission needed to look at the documents. Dr. Bell said he was bothered that Ralph McNulty said that he did not talk with him prior to building his barn next to the canal. He said he had a letter of permission from Mr. McNulty to build the barn in its current location. Commissioner Throop asked if Dr. Bell was saying that his barn was within the irrigation easement and that he had been given permission to do so. Dr. Bell said that was correct. Bruce White wanted to clarify some issues regarding the revised land use permit. Karen Green said that both of the land use decisions which Craig Smith issued were provided to the Schobs by mail, and no appeal was filed. Bruce White asked if during litigation she communicated with the Schobs' attorney regarding the County's process. Karen Green said yes, she communicated with the Schobs' attorney to advise him of the status of the litigation and the County's position. Mr. White asked if the Schobs' attorney ever expressed any dissatisfaction with what the County was trying to do or with the land use permits issued by the County. Karen Green said no. Mr. White asked Ms. Green if Dr. Bell was told the County would be satisfied with adherence to the land use permit which was issued. Ms. Green said yes. Mr. White said that one of the reasons the staff position was that the permit had not expired was the County had previously taken a position that as long as the permit conditions were adhered to, the County would be satisfied. It appeared there had been no objection from the Schobs to those conditions, and they were well aware of what the County was doing in its litigation. Commissioner Throop asked if he could build a 15 -foot high berm and then building a 6 -foot fence on the berm. Mr. White said the issue of the berm was irrelevant because it was a condition of the land that existed long before there was land use planning in Central Oregon. The existence of nonexistence of the berm would have been something that the County would have considered at the time of landscape management review. Commissioner Throop asked if he wanted to build a 15 -foot berm, if it would require a permit. George Read indicated no. Commissioner Throop asked if he could then build a 6 -foot fence on the 15 -foot berm which would then be a condition of the land. Bruce White said it would be permissible but would be a factor considered during the review. Commissioner Throop asked about the notice of this hearing not being received by Dr. Bell. Karen Green said that Dr. Bell was sent a notice but his attorney was not. Mr. White said there was considerable work done in finding a date that was acceptable to both attorneys, and that someone from Mr. Gary's office agreed upon the date and time. PAGE 19 MINUTES: 10-29-91 0108 0514 Commissioner Throop asked if the notice identified the applicable criteria required by ORS 197.763. Mr. White said that in the decision, Exhibit C, Section 27 & 28 of Ordinance 82.011 as amended identified the applicable criteria. Chairman Maudlin closed the public hearing for oral testimony, however written testimony would be accepted until 5 p.m. on Tuesday, November 5, 1991. He announced that the Board would make a decision on Wednesday, November 6, 1991 at 1 p.m. in Conference Room A of the Juvenile Justice Center. DESCHVTVS COUNTY BOARD OF COMMISSIONERS Nancy PopetSch{ Dic Mad in, C BOCC:alb ssio er '/`J aen. Commissi er PAGE 20 MINUTES: 10-29-91 e PUBLI DATE: 1. 2. 3�2 4. �6 ti, 63 iZ1 c� 7. ;roe- �ccv to 7 s o� aimp 92 70 10. F-7 7a 12. 13. 14. 15. 16. 17. 18. 19. PUBLIC HEARING SPEAKERS' LISTING ?- 0108 0515 NAME ADDRESS CITY ZIP