1993-05592-Minutes for Meeting January 13,1993 Recorded 2/18/199393-05592
MINUTES
0140_V, 5
DESCHUTES COUNTY BOARD OF COMMISSIONERS ,
January 13, 1993"
Chair Throop called the meeting to order at 10:03 a.m.: oared
members in attendance were Tom Throop, Nancy Pope Schlang6"..,l\and,
Barry Slaughter. Also present were: Tom Blust, County Engineer-;-,�
Rick Isham, Legal Counsel; Bruce White, Assistant Legal Co" el;
Sue Brewster, Assistant Legal Counsel; Karen Green, Cona-ty';.,;
Development Director; George Read, Planning Director; Brun
Harrington, Planner; Dave Leslie, Planner; Roger Everett,
Environmental Health Director.
1. CONSENT AGENDA
Consent agenda items before the Board were: #1, signature of
personal services contract with David Evans & Associates; #2,
signature of Amendment #30, 1991-93 Mental Health
Intergovernmental Agreement 09-001; #3, signature of Forest
Patrol Contract; and #4, signature of Amendment to
HealthyStart agreement.
SCHLANGEN: I move approval of consent items one through
four.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
2. PUBLIC HEARING: ORDER 93-001 VACATING A PORTION OF FERGUSON
ROAD
Before the Board was consideration of Order # 93-001, an order
vacating a portion of Ferguson Road, located in Deschutes
County. Chair Throop opened the public hearing and asked for
testimony. Being no public testimony, the public hearing was
Closed.
SLAUGHTER: I move approval of Order 93-001 vacating a
portion of Ferguson Road.
SCHLANGEN: Second.
VOTE: SCHLANGEN: YES ENZQ
SLAUGHTER: YES
THROOP : YES
3. PUBLIC HEARING: ORDER 93-002 VACATING A PORTION OF PONDEROSA
.
AU,
CASCADE DRIVE & SIZEMORE ROAD ® 0 J0—IVO`6
Before the Board was consideration of Order 93-002 vacating a
portion of Ponderosa Cascade Drive and Sisemore Road. Tom
Blust gave the staff report. He said the County had received
a petition from Ponderosa Cascade Homeowners Association and
Ed Adams to vacate a portion of Sisemore Road and a portion of
Ponderosa Cascade Drive. The roads were created in 1972 and
are cinder. There is a private road (currently blockaded)
that continues across Ed Adams' private property and connects
onto Sizemore Road. When platted, the original intention was
for a connection from Sizemore to Gist Road to allow a direct
route to Hwy. 20 and a second access to the subdivision for
fire purposes. The Public Works Department's opinion was that
vacation would eliminate any future options for development as
well as cut off any second access options. He said that the
Community Development Department concurred with the Public
Works Department and that the primary access in and out of the
subdivision was Cascade Way to Varcoe Road. The zoning is
both MUA and EFU.
Chair Throop opened the public hearing. Edward Adams, 66585
Sisemore Road, Bend, Oregon, stated that he owned a parcel on
the east side of Ponderosa Cascade Development. He said that
the private road that ran across his property was not there
"as it had been barricaded off by the County." He said his
intention had always been to eliminate the road and that many
maps did not even show the road.
Chair Throop clarified that in the transportation planning
responsibility of governmental units, there will be plans for
transportation corridors, but the existence of a road or
easement was not a determining factor as to whether it would
be in a plan.
Mr. Adams said he wanted to clarify that in the engineer's
report it stated the road continued across private property
and connected Sisemore Road, when in fact, it did not because
it had been closed. He said he and Ponderosa Cascade
Association planned to fence all their common ground. Also,
there were a number of developments with only one way in and
out, such as Saddleback and Black Butte, and it would be wrong
to make a second exit required if others were not.
Mr. Adams said that Sisemore Road already ran through his
property on the northeast corner and was a direct route into
Plainview. He asked why the road department removed the
gentle curve where Plainview and Gist roads came together
since it was now a 90 degree angle. Chair Throop said that
the County determined that the nonstop road needed to be Gist
and that Plainview needed to have a stop sign. Mr. Adams
asked if it were decided to put a road across his property
MINUTES PAGE 2 1-13-93
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whether it would have a 90 degree angle. Commissioner
Slaughter said it would depend on the traffic flow. Mr. Adams
asked the intentions of the Public Works Department. Chair
Throop stated that there were no plans with the road but to
maintain the opportunity. He said the county already owned
over half the easement required for a road to be put there and
wanted to keep the easement in case of a future decision to
modernize Sisemore. He said it didn't make sense to give up
an asset now that might need to be bought back later. Tom
Blust agreed that the Road Department wanted to keep its
options open but there were no current plans to acquire that
right-of-way or build that section of road.
Mr. Adams said there was another more direct route to Highway
20, in addition to the loop across his property, which was an
un -named road. Chair Throop said the Cloverdale intersection
would be the main intersection and that there would probably
be an interchange there in 50 years. Paradise Alley would
never be a major intersection because it did not cross over to
the north and that in the transportation planning by the State
Highway Department, Deschutes County must look at where the
major intersections would be.
Tom Blust said the main route, if connected, would be Sisemore
connecting into Gist.
Mr. Adams asked why so an important a road was only red
cinder. Chair Throop said that it had not risen to a higher
level of importance but that the County needed to look ahead
to make sure decisions made today would meet the needs of the
next generation.
George Read said the current comprehensive plan zoning did not
necessitate the road. Commissioner Slaughter said the
immediate development of the road was very unlikely but that
the County needed to reserve options.
Roger Rershner, 66484 Ponderosa, Bend, Oregon, introduced
himself as the President of the Cascade Homeowners
Association. He expressed fear that by attempting to protect
future generations, the current generation would be impaired.
He stated that he had been a resident of Bend since 1937 and
that he had a great appreciation for the fire danger. He said
the subdivision consisted of 85 acre lots plus 40 acres of
common ground in an elongated oval reaching east. He stated
the road in question was a "nonroad" with numerous chuck holes
sometimes a foot deep and eight feet across and four-wheel
vehicles often used this area causing damage to the terrain.
He stated that much of the prairie designated as a common area
for the horse development had been damaged by the four-wheel
vehicles. At the east end of the elongated oval is their
classic barn designated as a horse facility. He said that
PAGE 3 MINUTES 1/13/93
®x.20-IN'S
approximately half of the 85 home sites were built and that he
represented 170 adult owners. He said the road had become a
"testing ground" for off-road vehicles plus the barn had been
vandalized and mailboxes bashed. He said they needed to fence
their area but were told by Deschutes County that they could
not fence across the easement. There needed to be a way to
plan for the future but still allowing some means of putting
up fences. Also, they could be removed ten years from now if
the right-of-way were needed.
Chair Throop asked Mr. Kershner if he would be willing to
negotiate and agree to the County allowing the fence as long
as the easement was preserved. Mr. Kershner said there would
be no difficulty but would prefer a locked gate to a fence.
Charles Trachsel, Chief of Cloverdale Rural Fire Protection
District, said he did not have a problem with a gate. In an
emergency, a blot cutter could be used.
Chair Throop asked if it would be agreeable to all parties if
the County retained ownership of the easement. He said there
would be three gates, two of them only to be used by emergency
services or the homeowners association and the third gate only
to be used by emergency services or the owner.
Mr. Adams asked if a fence could be placed down the center of
the road. Chair Throop said Mr. Adams would need to fence on
the edge of the easement. Mr. Kershner said that Mr. Adams
planned to put the land under irrigation but there are some
curved lines that make it difficult to put in wheeled
irrigation. He said they had discussed property line
adjustments and he suggested straightening out the lines and
reaching a compromise between Mr. Adams and the Association.
He asked if this could be arranged so that the dedicated
roadway would be on one property. Chair Throop suggested that
both Mr. Adams and Kershner come to agreement then contact
Public Works. He said the decision that the Board needed to
make was if the County was to retain ownership. The County
would allow the two gates and that it sounded as if Mr. Adams
would allow the third gate.
Commissioner Slaughter said he would like everyone comfortable
with a plan and that Public Works should bring this back in
one week.
Chair Throop closed the public hearing.
Mr. Adams stated further that he had met previously with Tom
Blust and that he was told there would be no problem with
vacating this road since it didn't go anywhere. Chair Throop
pointed out that the public hearing had been closed but gave
permission to Mr. Adams to proceed with his testimony. Mr.
PAGE 4 MINUTES 1/13/93
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Adams said that he and the Association had purchased 4,000
feet of fencing.
The Board determined that the three parties should meet, work
out an agreement, and bring it back to the Board of County
Commissioners. If a compromise could not be reached, the
decision would come to the Board of County Commissioners. The
decision was scheduled for January 27, 1993.
4. PUBLIC HEARING: CONSIDERATION OF HEARINGS OFFICER DECISION
WHICH WOULD ALLOW A CONDITIONAL USE PERMIT FOR A LIVESTOCK
ARENA TO DIVIDE A 20 -ACRE PARCEL INTO 2, 10 -ACRE PARCELS IN A
MUA 10
See attached verbatim transcript.
5. SIGNATURE OF CONSERVATION EASEMENT FOR ROBERT AND FRANCINE
ATCHISON
Before the Board was signature of a conservation easement for
Robert and Francine Atchison for property locate adjacent to
the Deschutes River on Snow Goose Road in Oregon Water
Wonderland.
THROOP: A motion for signature would be in order.
SLAUGHTER: So moved.
SCHLANGEN: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
6. DISCUSSION OF SEPTIC PROBLEM FOR LYLE DAVIS
Before the Board was discussion of Mr. Davis' septic problem.
Mr. Davis said that he had taken out a building permit which
had also required a septic permit. The feasibility study
conducted a year prior required a sand filter with 150 lineal
feet and a capping fill drainfield. When he made the
application he gave this information but when the permit was
given to him, it read 450 lineal feet of capping fill system,
which he installed. Upon inspection, he found that the sand
filter was still required. Checking the permit closer, he saw
that the sand filter was listed but when he originally
interpreted the permit, he assumed that they had given him the
"lessor of two evils" as far as cost. He used his budget on
the capping fill system, and because he was still required to
put in a sand filter, requested compensation.
Chair Throop asked Mr. Davis for his reaction to the three
PAGE 5 MINUTES 1/13/93
AP
't
options listed in the December 1, 1993, letter from Dennis
Illingsworth of the Community Development Department. Mr.
Davis stated that he saw no option but to install the sand
filter and that it was an additional cost of $5,000 - $6,000.
He already had 450 lineal feet of drainfield.
Roger Everett said that the County did not have the option of
changing the rules of the State Department of Environmental
Quality and that he had talked with them regarding this
matter. For history, he said that the initial test holes were
approved for a sand filter. When the permit was issued, there
was an error in typing as to the number of feet; rather than
the 150 feet of drain field, it read 450 feet. The sand
filter requirement was on the permit. Upon inspection of the
system by the staff, it was found that there was no sand
filter. Roger then went with Dennis Illingsworth to the site
in order to determine any alternatives, but because of the
size limitations of the lot, there were none. It was his
opinion that the sand filter needed to be added and the
existing capping fill drainfield needed to be split so that
part of it would be set aside for replacement or repair.
Chair Throop asked Mr. Davis why he did not make contact after
he received the approval which called for a sand filter with
450 feet. Mr. Davis said the permit was confusing since the
sand filter was "up above" the other remarks and listed in a
different section. After reviewing the form, Chair Throop
said that the approval clearly stated the sand filter was the
proper system. Mr. Davis said that if he had done what was
indicated on the permit, he still would have installed 450
lineal feet with the sand filter and that he would have
approximately 300 feet more than required. Commissioner
Slaughter stated that a mistake had been by both parties but
that Mr. Davis had installed the back-up field and not the
required sand filter which was indicated on the approval.
After a discussion of fees and the fees paid by Mr. Davis,
Chair Throop stated he would accept a motion to support a fee
refund.
SLAUGHTER: I make a motion that we refund the fees for
this particular part of this building permit,
just drainfield application.
SCHLANGEN: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
After the vote, Mr. Davis asked if he were required to accept.
Chair Throop instructed him to tell Karen Green if he wanted
PAGE 6 MINUTES 1/13/93
t
' to accept the fee refund. Mr. Davis asked if h��h d—LfAo
consider his decision, and Chair Throop said the Board would
not want to do anything that would hinder Mr. Davis, ability
to seek other action and that was not part of the motion.
7. TAX REFUND ORDER #93-056
Before the Board was consideration of Tax Refund Order #93-
056. The refunds amounted to $5,705.76.
SCHLANGEN: I move signature of Order #93-056.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
8. ACCOUNTS PAYABLE VOUCHERS
Before the Board was consideration of accounts payable
vouchers in the amount of $149,565.69.
SCHLANGEN: Move signature upon review.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
9. ORDER 93-061, BUDGETED CASH TRANSFERS WITHIN DESCHUTES COUNTY
BUDGET
Before the Board was consideration of Order 93-061 for
budgeted cash transfers within the Deschutes County budget.
These were a series of budgeted transfers that included the
Legal Department, Mental Health Department, and Sheriff.
SCHLANGEN: Can I move approval upon review of that order
93-061 so that we can review it.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
10. REAPPOINTMENT OF SANDRA MARKS TO SPECIAL ROAD DISTRICT #1
Before the Board was consideration of reappointment of Sandra
Marks to the Board of Directors of Special Road District #8.
PAGE 7 MINUTES 1/13/93
SCHLANGEN: Move for reappointment.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
11. SIGNATURE OF MYLAR FOR AWBREY BUTTE HOMESITES
Before the Board was signature of a mylar for Awbrey Butte
Homesites, Phase 18.
SCHLANGEN: Move signature.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
12. SIGNATURE OF THREE SNOW -BLOCKED DRIVEWAY MEDICAL EXEMPTION
REQUEST FORMS
Before the Board was signature of three medical exemption
requests for individuals whose driveways had been blocked by
the actions of Deschutes County Public Works Department and,
due to medical problems, did not have the ability to clear the
snow themselves. Tom Blust recommended Board approval.
SCHLANGEN: I move approval of the medical request forms
to clear the snow blockage.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES.
13. SIGNATURE OF FINAL PLAT FOR MJP-91-4 AND DECLARATION FOR
DEDICATIONS FOR RIGHT-OF-WAY
Before the Board was signature of final plat for MJP-91-4 and
declaration of dedications for right-of-way adjacent to the
subject property. The partition was for three lots out of a
40 -acre parcel in an RR -10 zone near Ward Road and Gosney
Road. Chair Throop stated this was not a land use matter but
a formality before the Board to be the last signature in the
final plat.
PAGE 8 MINUTES 1/13/93
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SCHLANGEN: I move signature of MJP-91-4.
SLAUGHTER: Second.
VOTE: SCHLANGEN: YES
SLAUGHTER: YES
THROOP: YES
DATED this /32k day of
Board of Commissioners of Desch7,Zt
,
ATTEST:
)-)lQ6461 , -k'7. &j
Recording Secretary
PAGE 9 MINUTES 1/13/93
Pope `?6hl
_, 1993, by the
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B. H. Slaughter, Commissioner
VERBATIM TRANSCRIPT: PUBLIC HEARING TO CONSIDER HEARINGS OFFICER
DECISION WHICH WOULD ALLOW A CONDITIONAL USE PERMIT FOR A LIVESTOCK-`
ARENA
IVESTOCKARENA TO DIVIDE A 20 -ACRE PARCEL INTO 2, 10 -ACRE PARCELS IN A MUA
10
Tom Throop: ...consideration of the Hearings Officer's decision
which would allow a conditional use permit for a livestock arena to
divide a 20 acre parcel into a two 10 acre parcels in an MUA-10
zone.
Good morning. Does staff want to come up an give us a staff
report?
Brian Harrington: Good morning, my name is Brian Harrington,
County Planning staff. The applicable criteria for review is Title
18 in the Deschutes County Code, Section 18.04, Title Purposes and
Definitions, Section 18.32, Multiple Use Agricultural Zone, MUA-10,
Section 18.128, Conditional Use, also Title 17, Deschutes County
Code, Subdivision Partition ordinance, Deschutes County
Comprehensive Plan, PL -20 and P1-22, Procedures Ordinance. Subject
property is located at 65745 White Rock Loop Road, Bend, and is
further identified as tax lot number 601 on Assessors' map 16-12-
17. Subject property is zoned MUA-10, and designated Agricultural
by the Deschutes County Comprehensive Plan. Zoning for the parcels
in the surrounding area consists of MUA-10 and EFU-20 to the south.
The subject parcel contains 20 acres that generally is describes as
flat irrigated pasture land. The southwest portion of the
property, containing parcel 2, about 10 acres of the proposed minor
partition application is the side of the barn arena facility
comprising 5 acres or more. The property is fenced and contains a
main entrance taking access from White Rock Loop Road which abuts
the south property line. The essential criteria and review of this
application are contained in conformance with Section 18.32,
Conditional Uses Permitted In MUA-10 Zone. Section I. which lists
private parks, play grounds, hunting and fishing preserves,
campgrounds, motorcycle tracks, rodeo or livestock arenas, and
other recreational uses. Conformance of Section 18.128.015,
General Standards Governing Conditional Uses "A. The site under
consideration shall be determined to be suitable for the proposed
use based upon the following factors: The site design and
operating characteristics for the use; and B. Adequacy of
transportation to the site." Also conformance with Chapter
17.28.020, the subdivision ordinance, number 5 which states:
"...each parcel is suited for the use intended or offered..." In
summary, there is considerable history with regard to this property
as outlined in staff's memo to the Board dated December 2, 1992.
The issues before the Board are three fold. One is whether the
proposed uses of the existing structure and outdoor corral as a
livestock arena, utilized for horse shows, displays, clinics, and
arena rental for recreational horseback riding and riding lessons,
are allowed uses in an MUA-10 zone. The threshold question becomes
whether the proposed uses fall within the definition of livestock
arena and other livestock uses. The term arena is not defined in
the County code. County Legal Counsel's preferred interpretation
is that the existing barn structure would not fall within the
definition based upon the context of the term rodeo or livestock
arena as set forth in the zoning ordinance. The Hearings Officer
D-0 -lot's
determined that the term livestock arena can include a facility
either indoor or outdoor for horses on page 6 of the Hearings
Officer's Findings and Decision, dated August 26, 1992. The second
question for the Board to consider is whether the property is
suitable for the proposed use considering the site, design, and
operating characteristics of these activities. Essentially, the
question becomes whether the proposed use is compatible with the
surrounding area. The Hearings Officer determined that the
resolution to this issue could be addressed by limiting these
activities through conditions of approval. The third issue is in
regard to the minor partition. The question here is whether each
parcel is suited for the use intended, based upon the determination
that a legitimate use has been established for parcel 2, the site
of the proposed livestock arena. At this time I would ask if there
are any additional comments from County Legal Counsel in regard to
this matter.
Bruce White: For the record, I am Bruce White, Assistant County
Legal Counsel. Brian alluded to the fact that we have a legal
question to deal with. I don't know if you have your codes with
you, but the issue comes up under Chapter 18.32, Multiple Use
Agricultural Zone, Subsection .030(I). The applicants have applied
for a use that is listed in subsection (I), that includes a rodeo
or livestock arena. The question that you need to answer, both as
to scope of activities proposed and as to scope of facilities, is
whether this proposal falls in the rodeo or livestock arena use.
The subsection (I) includes a list of uses and reads as follows:
"...private parks, play grounds, hunting and fishing preserves,
campgrounds, motorcycle tracks, rodeo or livestock arenas, and
other recreational uses." I wrote a memo, that is in the record,
that I stated, as Brian said, that our interpretation based upon
the context of where it falls is that a rodeo or livestock arena is
not one that would involve elaborate indoor facilities. This issue
has not been yet interpreted by this Board and so it is one that is
open to more interpretation at this point. The other issue is to
the scope of use, as the Board is fully aware. There are other
issues such as boarding and breeding issues with respect to horses.
There has been a LUBA case previously involving this same property
where the State had at least in the context of this zone ruled that
boarding and breeding is not an allowed use. At least, that is how
I read that opinion. Boarding, breeding, and training is an
allowed use specifically in other zones, but is not listed in this
zone. There is a maximum interpretation that if it was something
listed in other zones and was left out in some zones, then there is
an intent not to include it. If that is your interpretation then
you have to establish what is the scope that is permissible within
a rodeo or livestock arena. It is my understanding that there are
some rodeo facilities, one in LaPine and one in Sisters. I do not
know who wrote this, what they had in mind. We just do not have
any legislative history that I know of interpreting this provision.
So, I thought I would just give you a little bit of background as
to what went into my opinion.
Tom Throop: Any questions for Bruce?
Barry Slaughter: Yes, I have one. Did you indicate that
motorcycle tracks were one of the permitted uses?
Bruce White: Correct.
Barry Slaughter: Thank you.
Bruce White: That is one of the permitted uses as it is listed
under 18.32.030.
Tom Throop: Let me ask a question here. There are two
classifications that I guess that I would like to focus on here for
a minute. One is the boarding, breeding, and training of horses
and that is not a permitted or conditional use inside an MUA-10
zone or a conditional use in the EFU zone, specifically not in the
MUA zone at this time. A livestock arena, and your memo
essentially says that, was not intended to be another means to get
another boarding, breeding, training operation, but that was more
intended to be a recreational facility site similar to a rodeo
grounds and the likes.
Bruce White: Well, that is what I read from the context. Again,
I am giving you an opinion based upon some fairly standard
methodology in construing statutory language.
Tom Throop: Why is there no history? May be George (Read) is
the best one to ask this of, but the committee that worked on this
topic during the comprehensive land use plan formulation process
does not have any minutes that would give an indication of what was
intended for this specific use or was put in place or is this
something that was added later? Why is there no history, I guess
is the question. Can you answer that or do I need George (Read)?
Bruce White: I guess may be I should qualify that and say that
there is no history in which that I am aware. May be George would
be more qualified to answer that than I would be.
George Read: There is probably a simple answer and that is that
we have not had any applications that I am aware of for one reason.
I think that there is another side and that is that a lot of these
existed prior to 1979 when the comprehensive plan was adopted. And
I guess the other question here is that we have done a couple of
arenas as conditional uses and that they have not been
controversial, therefore we have not had any issues and they have
gone with an interpretation of a conditional use and never went
beyond a staff decision. So, it has never gone before a Board of
County Commissioners' before to provide a legislative decision as
to how we should interpret these decisions.
Bruce White: Just one thing that I would say is that the Board
did in December render a decision on the J Bar J application which
was an application under this use of a rodeo or livestock arena and
M
the Board found that it did fall within it and the Board did issue
a decision. Basically, that was for an event under this particular
provision.
Tom Throop: Further questions?
Rick Isham: Brian indicated that Section 18.128.015(A) is
applicable to this application which basically provides that the
use, if suitable considering the site, design and operating
characteristics may be an issue that was not addressed or, at least
I did not notice it, was the use of the buildings and whether the
codes are applicable to the public building in order to be used for
a horse arena or whether or not that would be something that would
be satisfied under that section.
Bruce White: Ordinarily, the way building permits are handled are
through a plan review, and are really separate from planning
issues.
Rick Isham: But these buildings exist, is that right?
Bruce White: Yes. There is currently a building on the site.
From what I understand, it does not have any building permits
because it was originally constructed as an agricultural building
and would not be sited, or in terms of a building permit would not
be required.
Rick Isham: Is this an issue that the parties should address?
Bruce White: I think that that is an issue, and I guess, I think
that what you are asking me is whether under Section
18.128.015(A)(a) whether a termination or some kind of a condition
of approval would have to be that the site is found to be in
compliance with all applicable building codes. Obviously, this an
after -the -fact situation. Ordinarily, as I said, this would
normally be taken care of in a separate planning process.
Rick Isham: But in the absence of meeting the conditions, are
you suggesting that we could have a condition that could meet the
condition? Is that what you are saying, or would the outcome...
Bruce White: That usually in order to conditional approval you
have to show that is feasible for the applicant to meet the
conditions and I do not know whether or not that that is the case
here or not. Or whether the applicant is prepared that the
building can or will meet all applicable building codes at this
point.
Bruce White: Any further questions?
Tom Throop: Not at this point. Before that I open the public
hearing, let me reiterate that this is a hearing on the Hearings
Officer's findings and recommendations on the application for the
conditional use permit to allow a livestock arena and a minor
partition to divide a 20 acre parcel into two 10 acre parcels in an
NUA-10 zone, and the appeal is A-92-16. These applications were
previously considered by the Hearings Officer after a public
hearing that was held on July 21st, evidence of testimony was
received and the Hearings Officer did approve the application with
conditions. The applicant does have the burden of proof that he
and she are entitled to the land use approval sought and the
standards applicable were explained by Brian (Harrington) in his
opening remarks. The procedure that will be followed in this
hearing this morning is that we will hear testimony, receive
evidence, consider the evidence, and the evidence and information
submitted into the record on appeal, as well as the evidence
constituted in the record before the Hearings Officer. The record
as developed to this point is certainly available for public
scrutiny. The testimony that we received this morning must be
directed toward the criteria as set forth in the notice of this
hearing and listed in the statement that was submitted. Testimony
may also be directed at any other criteria in the comprehensive
plan of the County or any of the land use regulations that we
operate Deschutes County with if an individual believes that it
applies to the decision. The failure on the part of any person to
raise an issue with sufficient specificity to afford the Board and
the parties to this proceeding to respond, precludes that issue
being raised on appeal to the Land Use Board of Appeals. The order
of presentation is that we will ask the applicant to go first. The
party making application for the use to go first and offer
testimony and evidence. Proponents and opponents will be given an
opportunity to make their presentations. After the proponents and
opponents have made presentations, we will give the proponents an
opportunity to make a rebuttal if they so choose. Then at the
Boards' discretion, will consider if the opponents will benefit
from rebuttal as well. If any of the members of the audience have
questions as we proceed, please direct them through the chair.
Then at this point, I need to direct a question to the Board and
that is to see if any members of the Board have had pre -hearing
contacts. If pre -hearing contacts with any of the parties have
been made, the substance of those contacts and the dates of those
contacts need to be described at this point and the Board needs to
determine whether or not if that contact bias' their ability to
participate in this decision. And when we complete that, we will
see if any of the members in the audience wish to challenge any of
the three Board members for bias, pre -judgment, or for personal
interest in this matter. So at this point, let me ask the Board if
any member has had pre -hearing contact with parties in this issue.
Nancy Pope Schlangen: I have had none Mr. Chair.
Barry Slaughter: I have had none Tom.
Tom Throop: I have had contact with the applicant, not in the
context of this application, but in the context of working on a
host of equine related issues under the umbrella of the Horse
Council of Oregon, but I have not had any contact or discussion on
the substance of this application. Are there any members of the
0-1. t(-I"IR loxC
audience that wish to challenge any of the three Board members in
the hearing of this matter? Hearing no challenges, let's proceed
and let's take the statement of the applicant.
Bruce White: Mr. Chair, if I could just make one quick
suggestion. Ordinarily, in appeals we reverse the situation so
that the appellant goes first as the one who has raised the issues.
Basically, the whole reason it is before the Board is the appellant
and it gives the applicant a chance to respond.
Tom Throop: I think we have done it both ways. I am open, it
doesn't really matter which party goes, I guess I felt that it made
sense for the applicant to go first to lay the issues out, but it
doesn't really matter to me. Do the parties have a preference or
any of the Board members? Let's go ahead and take the applicant
first and we can lay the issues out so that the rest can respond.
Myer Avedovech: Mr. Chair, my name is Myer Avedovech and I am
the attorney for the applicant in this particular matter and I am
going to keep my comments fairly short, but I do ask for the right
for rebuttal in case Hendrix comes up with something that I did not
hear at the last hearing or has not raised until this point. Just
in case he has thought of something since the last time the two of
us talked about this issue. First of all, I am going to challenge
the Boards' authority and right to hear this appeal, as it is not
timely perfected under the County ordinances. The County
ordinances require, in Chapter 22.32, and more specifically under
subsection 32.015, that when an appeal is filed, it must be filed
within 10 days of the date that the Hearings Officer's decision was
mailed. Within that time frame also, the applicant must file the
appropriate appeal fee. In this particular case, it is not a case.
It is two separate issues. My clients have paid two filing fees,
had two applications, and all decisions have been made for two
applications. So we have come down the road and it was
consolidated, as to the direction of the Planning Director, for the
purpose of hearing. We did not eliminate either application. Only
one filing fee has been paid as of the deadline which was at 5 p.m.
10 days after the mailing of the notices. Therefore, the
appropriate filing fee was not paid, therefore the filing was not
perfected and the matter is resolved.
Rick Isham: Was one filing fee was paid?
Myer Avedovech: Yes one appeal fee was paid. Two filing fees
were paid, Mr. Isham, when my clients applied at two different
times. We made those applications for the conditional use and the
partition separate at considerably different times apart. We
weren't thinking that way. There were decisions made and so the
applications got filed separately. It is my understanding that Mr.
Read made a decision, and may be appropriately, to consolidate for
the purpose of hearing. But there was never an elimination of one
application or were they merged into one and two filing fees were
paid by my clients. Only one appeal fee was paid by the
applicants. And I think that you are precluded from proceeding by
the rules.
Tom Throop: Well, we are going
obviously have raised it, and you
are going to go ahead and proceed.
to go ahead and proceed. You
can appeal that to LUBA, but we
Myer Avedovech: Actually my goal is not to end up in LUBA
again, that's what we are trying to avoid. We want to get
something done. To be very quick and brief, I assume that all of
you have read the voluminous amount of material that has been
produced in this particular application. I believe that the
Hearings Officer's decision is appropriate. I believe that he had
substantial evidence from the record that is there to substantiate
each and every one of his findings and conclusions in this case.
In the history that I have spent with land use planning in the
State of Oregon, and in Deschutes County, from the beginning of
time as what we know of as current land use planning in Oregon, we
have always come upon the incidents or situations where something
is not defined. This ordinance is no different than most of them
in the State of Oreaon and there are not definitions for every item
and every use. The issue that is here is whether or not an arena
must be outdoors. That is the real simple, not of the underlying
question that Mr. White and Mr. Harrington presented, issue number
one. If the definition is an arena must be outside, then we have
a whole bunch of folks in this county that has a whole bunch of
problems, because they are conducting indoor arenas. Arena is not
defined as outdoors exclusively. If you look in any publication,
you look in any advertising, you look in the usage not only in
horses, llamas, sheep, cattle, animals of any kind where shows are
held or events are held, many of them are sponsoring or encouraging
people because they have indoor arenas to hold these events.
Rodeos are held in indoor arenas and they are called arenas. They
advertise that, and they do specifically, because in this country
particularly, and as during this particular winter, it would be
very hard to have a show outside. On the other hand, if you are in
an arena in Nevada in July, as I was a couple of years ago, and it
was 110 degrees, I was really appreciative of the indoor arena. It
is one of the largest in the United States, and it was air
conditioned. And it is in fact, one of the world's largest indoor
rodeo and livestock arenas. And that is how it is billed. That is
what it says on the front door. It is called an arena and it is
indoors. I think when you look at the definitions and the common
usage of the word, and if something isn't defined specifically, I
suggest that the common usage is the way to look at it, they are
indoor or outdoor. And I think there wasn't ever any question made
about whether an arena could be indoor until Mr. White found
something about a coliseum back in the definition of some
dictionary some place. So I have produced six or seven other
dictionaries that said otherwise and away we went. But I think
that really an arena can be indoors and if we get over that hurdle,
then the real issue is is this compatible for this area and are the
conditions purposed by the Hearings Officer realistic enough to
allow this use to go forward in this particular circumstance. I
believe it is and I believe that the conditions set forth
adequately protect the neighbors from any kind of potential adverse
impact on the area. I think underlying all of this you have to
remember that this is a stated conditional use in the zoning
ordinance. George Read is absolutely right and I would suggest
that there is no history is because this paragraph went from the
old ordinance to the new one. And I speak with a little bit of
knowledge, that the time that that happened, having been the
Hearings Officer at the time the plan was adopted, and realizing
what went on and having sat in on some of the state legislative
committees during the creation of Senate Bill 100. Many of these
things were uses that were going on in the County that simply went
from the old to the new. And I think in all honesty, that is what
happened. Also the uses such as boarding, breeding, and training
of horses were omitted in two zones in this county that were in
previously ordinances, in EFU-40 and MUA-10. There was no debate
at that time, there was no discussion about it. It simply
happened. It was a rush. Everybody was trying to do what they
could and it got missed. Those things happen. But I am not here
to talk about the boarding, breeding, and training of horses
because that was another issue that we lost in front of LUBA. We
did win the fact that horses were livestock in front of LUBA and
the County has to accept the fact that horses are livestock. So
that issue is resolved. So we know that the using of horses in a
livestock arena, that a horse qualifies. So we don't have that
issue, and I don't think we have the issue of boarding, breeding,
and training of horses as that is not what we applied for. We lost
that one. We are here for a livestock arena, it's a stated use.
I am not going to go through the list of twelve or fifteen items
that Mr. Hendrix has raised. He raised those at the Hearings
Officer's hearing. They have been addressed by the Hearings
Officer's decision. All the briefs and memorandums that we filed
before, I think, address each one of those issues. I would comment
to the fact that there are a number of statements by Mr. Hendrix
unsupported by any evidence. Simply, there is a traffic problem or
it is adverse to the neighborhood. Unsubstantiated allegations
don't carry any more weight than that of an unsubstantiated
allegation. We are required to prove our case, he is required to
prove his case, and we have done that with the evidence. We have
done the studies. The documents that are in there that are very,
very voluminous, and I am assuming that you have read them or that
you will take the time to read them before you make a decision,
because I think that it is very critical to every one concerned.
The other issue that I simply make, and I assume the letter that I
wrote to you Mr. Chairman, regarding the 120 day time frame of the
non -teeth provision in the statute says that you have to do
something in 120 days or you get to go to court. If you practice
in Deschutes County and you try to get a hearing, and I would
rather be here than there because I would still be waiting six
months to get my hearing in court, so it doesn't have any impact,
but we are not waiving the fact that this is many, many days over
120 and this matter has not been finalized.
Tom Throop: I think you understand the reasons for it, whether
you accept it or not...
1 ��'Ia52
��%d" Y
Myer Avedovech: Well, yes, I understand absolutely your
reasons, and yes, I probably do not agree with them. But, yes, I
don't have a problem with it, I just have to make my record.
Tom Throop: We didn't want to conduct the hearing with one
commissioner and have to make the decision with the second, so we
chose not to do that. If you want to make that a issue feel free.
Myer Avedovech: No, I am not making an issue, I am simply
maintaining my record which I think I have an obligation to do and
making sure that that was in the file. That's all. Also, I will
only refer to J Bar J very briefly. That information is in the
file. We relied upon some definitions used by the Planning staff
in their initial staff report in that particular matter and we
would think that the County maybe needs to follow that along also.
We think the conditions set forth by the Hearings Officer were
appropriate. We were not happy with all of his conditions. We
would of liked some other things, but we are more than happy to
accept those and live with those. I would like to comment on, just
briefly, what Mr. Isham raised a few minutes ago with Mr. White.
The process of getting permits for a structure is somewhat a
chicken and an,egg story in this county as well as in others. I
will make an analogy. I have a barn on my property that I use
exclusively for private use and have no commercial use as far as
that facility which happens to be fact. If I should change goals
and decide that I want to now use that facility for a commercial
activity, and I never obtained commercial permits necessary to have
that agricultural building made, and I already have the structure,
now I have to go apply to see if I can make it meet. There is an
existing structure, we are in the process of trying to get those
permits. We have been dealt another blow in this situation in that
the head of the building department is no longer with the County,
the gentleman that we were working with, and we are attempting to
meet those things through some other avenues because we have a
structure. Whether the structure should have been there or not is
really not an issue in front of the Board at this time. There are
some other arenas where that is being dealt with. This is an
application for a permit to have a livestock arena in a MUA-10 zone
and that is what we are talking about. But we attempted to file,
many, many months ago, an application for some permits and were
told until the zoning process was done that we could not apply for
the building permits. It was only through the good graces of Ms.
Brewster, after some lengthy discussions that she and I had, was
she able to find some one to agree to allow us to apply for a
building permit while this process was going on. Now we have
started that process. Now we have somebody that is new and not up
to speed and so we are struggling, but we are getting there. And
so, it's kind of a tough situation to know where you get to start
first, because, planning is supposed to be there first, but if you
have an existing structure, and that is why I have used the analogy
of changing from a private use to a commercial use, you already
have the structure and now you have to attempt to go back and get
the permits. We are more than willing to live with all the terms
and conditions that the Hearings Officer said. We understand that
we have to get the permits and they have to be at the commercial
level to run the commercial activity of a livestock arena, if we
get that permit. I would be happy to answer any questions. I
would like the opportunity to respond to Mr. Hendrix's if we deem
that appropriate. Any questions we have not answered?
Tom Throop: Let me ask a question. The applicant clearly is
applying just for the arena use covered by the conditions that were
laid out by the Hearings Officer as opposed to any boarding,
breeding, or training of livestock that are not their own at this
point?
Myer Avedovech: That's correct. That's absolutely correct.
And we are trying like mad to make that point, but I hope you
didn't mean just the enclosed structure, because there is a corral
outside, called a corral, but it's an arena outside as well as the
inside one that we are applying for.
Tom Throop: Just trying to get at if there are any uses opposed
to the boarding, breeding and training.
Myer Avedovech: That's absolutely correct.
Tom Throop: Let me ask you a follow up question. Why don't you
describe where you see that building permit process at this time,
what your best guess is what that building permit process may tell
you that you have to do if you are going to essentially convert a
private use to the commercial use?
Myer Avedovech: I can not answer the last part of that
question, because we don't have the information from the building
department. There has been a site inspection. We have asked the
building department to review the process based upon the criteria
and conditions set forth in the Hearings Officer's decision. This
is the use that we have proposed with the conditions set by the
Hearings Officer. So that has been our proposed guidelines that
we've asked the County to review for the status of that. We have
been told that we have to have stamped plans for a commercial
activity. Obviously, when the situation started originally, they
were not stamped plans and we are in the process of attempted to
get stamped plans done and finished. We have asked and were told
once we have that, we can proceed further. We attempted to meet
with Mr. Rockenbrant a number of times only to learn that he had a
personal emergency that took him out and then when we finally got
through, he apparently no longer worked for the County. I got a
letter from him after the inspection that they did, that said
basically, here are the two or three permits that you had for an
agricultural facility when you originally structured it and that
was about all it says. Then we asked for more detail and we got a
letter asking for plans. Then we asked for the plans and we are in
the process of doing that. I don't think there is going to be a
lot of things. Maybe a few electrical things, that may be
necessary, we are not sure at this point, plumbing, may be a few
structurally. I don't think there are going to be any problems at
• •7
all. It is a typical, although large, barn like those that are all
over the County. Basically, a little fancier pole barn that we see
and they are built all over the County. I can't give you more
detail with the kind of set back that we have. We don't know how
long. My client at this point, just had the plans printed, went to
pick them up, discovered that they did not have the stamp on them
and she is supposed to be meeting with the engineer later today or
tomorrow in an attempt to get the stamp placed on so we can then
file those. So I would expect that process to be done shortly.
And they have had the site visit, whether they need another, I
don't know that, at this point we have not been told. I see that
it is taking some time through the process, but I don't know any
more than that.
Tom Throop: Myer talked about some transition in staff and I
would like to describe that just briefly. Our building official
did reach retirement age, as people do when they reach retirement
age decide that they want to work a little less and maybe play a
little more, so the person did retire. The person that we have
probably considered as number two in the department was offered a
tremendous opportunity and he is now a building official in his own
right for another local jurisdiction in Oregon, so we proved to be
a great training ground and lost this individual. So we did have
two people move on that we had no control of.
Myer Avedovech: I appreciate that, we were just told that they
were no longer with the County and that's all we knew and we ...
Tom Throop: One retirement and one promotion to head up a
department of an agency of his own.
Myer Avedovech: Well, those are things that happen. There is
a lot of bad history with this case, some bad advise that my
clients received way back many, many, many years ago that would
have been solved if they had not had it. But I can't undo that and
I am not trying to undo that. I am trying to correct it, that is
why we've done what we've done.
Tom Throop: Let me ask a third question, and that considers the
minor partition portion of the application. I am not exactly sure
how to phrase this, so let me just kind of stumble into it. Could
you describe why the use wouldn't be, let's say, more appropriate
on the entire 20 acre parcel as opposed to on just the 10 acre
parcel? I guess what I am trying to get at, is why wouldn't the
applicant have potentially greater flexibility for the use of the
site, less compatibility problems, greater likelihood to accomplish
objectives by retaining the entire site rather than trying to bring
a commercial use on as well as trying to divide the site in half at
the same time.
Myer Avedovech: There are a number of reasons I think, and it
may be more appropriate for my client to answer some of that. Some
of it is cost, attempting to sell some of the land. The proposed
application is limited to basically the 10 acre site that is left,
Q-1 r6p, ..J () P -
that is where it is on. That is where the use would be structured
for anyway and it wasn't going to be developed on a 20 acre site.
They did not set it in the middle of the 20 acre site to use the 20
acres. The theory was that they would develop that and either
build their own home or sell off a portion for someone else to
build a house. It got to a point where they felt that they needed
some relief from the financial burden that they have been under in
the last couple of years from the process that we've gone through
and chose to put some of it up for sale. This is within the
minimum zone requirement out there, so we felt it is within the
appropriate zoning. What is anticipated, if I am understanding the
definition in the comp plan and the zoning ordinance, is that it is
a multiple use agricultural zone. That is why. You can make a
good argument for what you ask Mr. Throop, but I can't simply just
say that, gee, we have all of this land that we can commit to this,
but my client just came forth and said we need to sell a part of
that to recoup some of our expenses and costs over the last couple
of years and it is in the zoning ordinance to do that.
Tom Throop: In your opinion, does that have any bearing on the
suitability of the application, as far as the compatibility of the
use?
Myer Avedovech: No. The reason I say that is, obviously that
if somebody does buy it, although the number of bare land sales in
Deschutes County were very, very limited, for who knows what
reasons in an agricultural zone, but they are going to buy it with
obvious knowledge of what is next door. The parcels out there are
from everything from 2 to 20 acres. It seems to be compatible with
what's out there and it doesn't generate much additional traffic,
Maybe one more rig or two rigs if someone builds a house out there
if it is sold. Who knows if it will even be sellable. And maybe
down the road in a couple of years if it doesn't sell, my clients
may decide that that's not feasible and maybe they will put their
own place on it. But I don't think that one more residence on a 10
acre parcel next to the proposed application will have any
significant impact upon the development. It won't have any
significant impact upon the traffic or that and obviously the
people are going to buy with the knowledge that the structure
obviously physically sits there. You can't avoid that.
Tom Throop: Questions?
Myer Avedovech: We just think that you ought to buy the
Hearings Officer's decision with his conditions.
Tom Throop: Other questions? Thank you. Are there any other
witnesses on the proponents', or applicants' side? We will take
all comers.
Denise Moody: There's not activity going on and the placement of
the building, the a, the majority of the riding activities take
place indoors and really have no use of the entire 20 acre piece.
In fact, we own a 5 acre piece that adjoins it as well, which is
where we do plan on putting our home. Most of the outdoor use that
we had intended when we bought it, if we were in the boarding
business then would be beneficial, because you could have outdoor
pasture and boarding. Since that is not an allowed use in the zone
right now, it is kind of useless for us to own so much land. We
don't do anything with it than pasture our own horses and it is
such a limited growing period that we end up feeding hay most of
the year anyway. That's all I wanted to add to the partition, as
it is more suitable as a 10 acre homesite in an MUA-10 zone.
Tom Throop: Let me follow up with that a little bit. It is my
understanding that you may make a subsequent application, a
legislative text amendment application, to provide that boarding,
breeding, and training of horses will be a conditional use in a
multiple use agricultural zone, and if in fact you do make that
application, it may be logical to assume that you might follow that
up with a quasi conditional application which would allow boarding,
breeding, and training of livestock on the property in question.
Would that have an impact on the response that you gave the Board?
If the minor partition was approved, would that diminish your
capability to do boarding, breeding, and training?
Denise Moody: What is does if you grant the partition is limit how
large of a facility I can have commercially and I think that is
important to the neighborhood. The neighbors don't want to see a
lot of activity. They don't want the J Bar J horse show to take
place and having more ground or more space for a boarding
operation. If we went through and did the text amendment, if a
text amendment gets approved, then we go through and do a
conditional use, the conditions are going to be strict in this
neighborhood because of the opposition to it and we are willing to
work with that. We don't need to have 100 horses standing out
there. Quite frankly, I like a small business and I like small
activity levels, so it really doesn't fit into our scope. Plus the
other strength of a MUA-10 text amendment is that it is a MUA-10
zones, 10 acres. There are several of them out there and when
these conditional uses would come up as probable uses for land, you
are going to see that most of this County isn't even 10 acres in
the MUA, they are mostly 2s and 3s. And you know, its going to be
an important issue as to how many horses you allow someone to stand
on their property and collect rent for. So I think in giving me
the partition, actually controls my growth on the commercial end of
it, but it would help us financially if we had that opportunity to
maybe sell that 10, or keep the 10 and sell the 5. But as Myer
said, the land sales in this county are almost non-existent because
all of the restrictions on using agricultural land and we just
landed in the middle of that as well as doing something with horses
here. It's kind of a big mess county -wise.
Tom Throop: One follow up. Could the minor partition from 20 to
two 10s, could that impact your ability to expand your operation to
boarding, breeding, and training, where there may not be that
ability to absorb that use on the resulting parcel at all if over
5 acres is taken up with the arena, if in fact that is approved?
If you do divide could you be limiting your options and your
capability to expand into other equine related uses such as
boarding, breeding, and training?
Denise Moody: I think all that I would be expanding is how much
pasture space I would have and there's a 40 acre piece across the
street I could rent and I have several neighbors that have 5 acre
pieces that are growing pasture land. If I wanted to be in the
pasture rental business, I wouldn't have this problem, because that
isn't an issue with this County. I am not interested in having a
barbed-wire fence and pasture. What I want to provide is a nice
horse facility where we can ride indoors and where we can have
small horse shows. It is very cold here in the winter and indoors
is kind of a real nice selling point. Because we are not doing
much outside for like six months of the year.
Tom Throop: I have nothing further. Nancy?
Nancy Pope Schlangen: I just have a question, as I was confused
on the record of the water. The 18 acres of water is on the whole
20 acre parcel? Then it talks about tax lot 599.
Denise Moody: That's the 5 acre piece.
Nancy Pope Schlangen: Oh, that's your other piece.
Denise Moody: Yes, which adjoins the 20 and its all flood waters
as they describe. It's got a 50' road that goes back to a square
section.
Nancy Pope Schlangen: I was trying to figure out where lot 599
was in the 20 acre section. Okay, now I got it.
Denise Moody: I think we have 18 total....
Tom Throop: On the 25?
Denise Moody: ...on the 25 altogether and some has been moved from
one to the other based on those aerial photos and I can't really
tell you whether it is 16...
Nancy Pope Schlangen: So it'll be divided up on the partition
deal to be dividing up the parcels.
Denise Moody: Yea, and more of it will end up going to the new 10
acre piece than stays with the barn/arena structure because of the
space it already takes up you can't obviously irrigate underneath
it.
Tom Throop: Okay, let's take further questions for Denise?
Denise Moody: Thank you.
Tom Throop: Is there anyone else wishing to testify on behalf of
b�.
the applicant? Okay, if not, I would like to call a two minute
break before we get to the opponents.
Tow minute break.
Greg Hendrix: Just a little background information as I know two
of the Commissioners have been through it, but I am sure
Commissioner Slaughter's familiar with the file. Mr. Avedovech and
his clients set here and gave you a vision of "gee, golly, we are
trying to cooperate" and that vision is incorrect. These folks new
from the very beginning that they needed permits to do this
activity. They did not build a barn, then decide to hold horse
shows inside of it. They built an arena from the get go. They
built this huge structure from the very beginning, and have been
told from the very beginning, that to do what they want to do that
they have to have permits. They went to the Hearings Officer a
year and a half ago. July 1991 for the boarding, breeding, and
training operation, and for all of the other uses that they wanted
use in this building, and they were told at that time that*the
Hearings Officer approved their application and kind of set it on
some kind of quasi openness, and made the suggestion that they
apply for a zone text amendment. That suggestion has been made to
them many times over the last year and a half. And over the last
year and a half, they have refused that. Well, we appealed the
Hearings Officer's decision a year and a half ago, and this
commission, reversed that decision, and we went to LUBA on this
issue, and we won at LUBA. Instead of having to address this as a
zone text amendment or something else, we are back in here
basically for the same operation with a different name. And what
hasn't happened in that year? Well, they haven't stopped
operating. They have continuously violated County ordinances for
a year and a half. They have just gone on ahead as if they have
permits. They have been inviting the public in there. They have
been advertising for horse shows. The have been charging fees for
boarding. I did not hear today that they are not boarding at all.
We know that as recently as last fall, that they had other people's
horses in there with their names and phone numbers on the stalls.
We had testimony at the last Hearings Officer's hearing of people
on their side, proponents of this application testifying that they
board their horses with the Moody's. That is in your record. This
illegal activity has been going on for a year and a half and
anything that you folks do today, I think that encourages people to
violate the ordinances as obviously and openly as these people have
been doing for a year and a half... I think it just makes a mockery
of the rest of it and it makes it hard for me to come here when I
come with other clients and we have to comply with the zoning rules
and these folks don't. And you can say that well, gee, we have a
whole bunch of questions on the area of what is and what isn't
allowed in the MUA-10 zones and what the definitions are and
anything else, but we know, without a shadow of a doubt, is that
for a year and a half these folks have had no permits at all to
have the public into this building, and that they had no permits at
all to boarding, breeding, and training, and that they have been
doing it. They have been doing it all this time. The news today
that they are in the process of applying for commercial permits is
absolutely new. In talking with Susan Brewster, your code
enforcement attorney, who has been prosecuting the case against the
Moody's for over a year with an injunction on this matter, and it
has gotten a lot of discovery on this. This is news. This is just
coming up now. And these folks have again, had a year and a half
to come up with these permits. And also, what we have not seen in
any this time is a site plan. Your ordinance requires a commercial
activity to have a site plan. We don't have a site plan. We
don't know where the parking is. The Hearings Officer said
"arbitrarily we are going to have 25 parking or trailer spots here"
oh, no, he said "adequate trailer spots and 25 parking spots".
Neither of those are defined. You don't know and I don't know and
my clients don't know what all is meant by that and that 25 parking
spots will take out a whole clot. Your ordinance requires that
they have to have a parking spot for every four seats in the arena
or for every eight feet of bench space. We haven't seen any
information at all from the applicant as to how many benches or
seats or anything else they have. None of this information is
provided. That alone should cause you to deny this application.
You have the public going into that building right now. Who knows
how much snow is on top of that building right now. If that
collapses, that is not just the Moody's responsibility, that is
your responsibility. This activity has been going on and it is
still going on and we don't have any permits at all for it, we
don't have any site plan for it. Your ordinance requires that if
you have a commercial activity, your parking areas has to be paved.
We also have the issue of a loading dock. You know when you've got
horses, you have to have adequate parking for the horse trailers.
They say that they will limit their activities to 40 horses for
horse shows. Then it seems to me that they should have 25 or 30
horse trailer stalls at a minimum. Those ought to be paved, there
should be a site plan and traffic plan done at the arena to show
where this is going. A lot of similarities have been drawn between
the J Bar J activities, so let's just throw that one out right
away. First of all, this is a major indoor commercial building.
J Bar J has no such building at all like that. J Bar J is a one
time operation. The Hearings Officer aloud this to have 10 horse
shows a year, an undefined number of clinics, an undefined number
of rental activities. Basically, under the Hearings Officer's
decision this facility could be in operation 24 hours a day, 365
days a year. That is not what J Bar J is. The other difference
is, the obvious difference. J Bar J is, like I said, the outdoor
thing one time per year, and all the activities at the J Bar J were
severely limited as to the time of day and everything else. J Bar
J, I believe you folks required or the applicant pledged to and you
held them to it, that they were going to remove animal manure
daily. That is not part of this one. All they say here is that
they have to remove it from time to time. Now the Moody's have
practiced animal manure terrorism against their neighbors,
throughout the last two years. This is in the record. This has
been testified to many times, where they have piled manure next to
my client's homes in an attempt to intimidate them to keep them
from objecting to this activity. What they suddenly had was there
is this arena being built, there is this outdoor lighting, there
are loud speakers going on, there are activities every weekend.
They go to the County and ask if there are any permits for this and
they are told no. There are no permits. So for a year and a half,
or for two years now, we have been going through this process and
they still have no permits and they are still going through this
activity. These sorts of things are still going on. Now the
Hearings Officer did limit them saying no outdoor lighting except
for security purposes and said only hand held megaphones and
things. But we still have not seen a site plan to see where the
parking is going to be and where the parking is going to be. How
are they going to comply with that. Drainage is always an issue.
I think we need to have a drainage plan on this thing. We need to
have loading docks. There is no way that you can treat this
facility any differently than you treat a WalMart or a Sears or
anything else. It is the same sort of activity. They are in there
for business. They are inviting the general public, and they are
taking a fee for it. Also in the Hearings Officer's decision, he
mentions allowing food service activities. There is nothing in
your ordinance that allows food service activity. He is allowing
clinics. There is nothing in your ordinance allowing clinics. He
is allowing for the whole thing to be rented out for recreational
riding. There is nothing in your ordinance that has a definition
for that. I think Mr. White is correct that some of this is in
your purview of discretion, to say okay we are going to do this, we
are going to do that. But if you are going to allow this to be a
full time commercial activity, then let's treat it like we do all
the other ones. If I came here and said gee, I represent Mountain
View Bowling Alley and we are going to set up on County land or
something. I know what you would require me to do and this is the
same situation. Just because horses are cuddly and people like
them and the people that like them feel really strong about them,
that doesn't mean that they have any special rights under these
ordinances. They have the same obligations as everything else.
And I know what each one of the three of you would tell me if I
told my client, go ahead and build the structure, go ahead and have
the general public come in and use this commercial structure, and
we will get permits when we get around to it. Gee, the building
official retired or changed or something. We are not talking about
the last three weeks, we are talking about a year and a half of
non-compliance and it is just absurd. It is obscene. Back to the
animal waste, I think that as you set forth in the J Bar J thing
that that would be one adequate thing that should be removed daily.
The number of shows allowed is just too many. The shows
themselves, I guess they say, ten shows and they limited them to a
weekend sort of situation and a seasonal sort of thing, you know,
that could almost be lived with if these other issues of parking,
loading and unloading are taken care of, and animal waste disposal.
But this open ending allowing of clinics and whatever, just doesn't
make since. Also, I haven't ever been able to find out, or nobody
has told me, and I have certainly listened to Mr. Avedovech several
times here and I never heard any difference between what is a
riding rental and what is training. I know we know, that you folks
have decided in the past and that LUBA has upheld it in the past,
that boarding, breeding and training is illegal in itself. So,
they come up with a new term "clinic". I don't know what the
difference is between a clinic and training, and I don't think
there is any difference. If you all are leaning towards, ah, gee,
these folks have this building, this is sort of an ag type activity
and I'll get on to why I don't think horses are agricultural, but
if you are inclined to go that route, at least say to them this
application is denied but we'll look at an application when you
properly submit a site plan, so we know where we are going to be
parking, so we know what is going on, that we have some engineering
plans so that we know this building is safe, so that we know that
the bathrooms have adequate public access, as every commercial
building is required to have, so that we know the seating is safe,
and so that we know that all these issues are taken care of and
that we are going to have paving and everything else. And, this is
the most important "and," that you folks cease operation until all
of this is done. I mean, this is the most important "and." They
are just going on and going on.
What on earth, will push them to comply with the ordinance.
Nothing. At this stage they have no reason to comply, I mean they
are here todayi But they have not complied with the ordinance up
to today. And, in fact, you folks, Deschutes County has a lawsuit
pending against them because they are not complying with the
ordinance. But here they sashay in here and say "oh we have
permits on file" or "we are going to do this" or "we've got these
other plans going". And after a year and a half this is just
unbelievable, it's just unbelievable. If you are going to allow
them to continue, and my thought is just to say okay, good faith,
you know, you folks, you say that you are going to comply with all
this stuff, then stop operation until you do. Okay, here is what
we need you to do. We need you to have engineering stamps, we
don't want to have as many activities as you have, we want to have
as parking a site plan review, but you show us some good faith, you
stop operating, because if you do not stop operating, we are not
going to allow the conditional use because we are not going to
believe that you are going to follow through with any of this. I
think that, like I said, that the parking, the 25 parking spots are
just pulled out of thin air as there are no basis in your
ordinance. That alone will get me up to LUBA and back here, so you
folks have to address that. We have no information at all on that,
so a Hearings Officer has to arbitrarily go through the site plan
review criteria and say that. Also, another thing that is going to
get us up to LUBA and right back is that the ordinance requires for
commercial activities, which is obviously what it is and what they
admit that it is, is that they have a site plan. I mean, why are
we here, why are we going through this? I mean, they should not be
able to go one step farther than this hearing. I mean, you should
deny them right now and say go back and have a site plan. My
concern is that if you say, okay we are going to allow this
activity as long as we are going to get these ten or fifteen things
taken care of and a site plan, I am concerned about that because it
will severely limit my client's ability to address this in the
appeal process. It would give me no other alternative than to go
up to LUBA and say, we don't have a site plan, they are not in
compliance with your ordinance. And if there is a part condition
you make a site plan, which I think is the wrong way to do this, at
that point if there is something in the site plan that doesn't jive
with your ordinance, I have pretty much cut off some of my appeal
options here. The Hearings officer allowed boarding in cases of
emergency. That was in the decision. Clearly, another thing taken
arbitrarily, it is not in your ordinance. There is no allowance
for that. I think it can be said you know, if you have a true
bonafide emergency, where people are stranded overnight or
something, that's one thing, but I think if you have something in
the thing that says in case of emergency, then what becomes an
emergency. Gee, someone's daughter is sick. They don't feel like
it or something like that. In our information, boarding has been
on-aoina all the wav through here anvway. I mean, is an emergencv
the matter that the Moody's need to make their mortgage payment?
So that they need to have some horses there for emergency. That
alone needs to be taken out of there. Boarding is not allowed in
this zone. I am going to raise an unpopular position now, but I
want to hold it for the record. I understand that LUBA has decided
that horses were livestock, but LUBA did not have at that time is
the tax court opinion, which I have cited in my memorandum before.
And I know that your County Counsel has brought this information
for you too. The tax court came to the conclusion that horses are
pets, not livestock. And I think that once this issue comes back
to LUBA, with that information, I don't think that LUBA will have
much choice, but to follow along with that. And to go along with
that theory, is that horses are indeed pets. They are not eaten,
they don't pull machinery anymore, they are not sheared, you don't
raise them to treat horsehide. Clearly, what these people are
doing with them is riding them around, looking at them, and
training them to do tricks or to do whatever they do. I am not a
horse person. That's obvious. I understand that horse people feel
very strongly about how wonderful and noble a beast a horse is, and
that may very well be true. But the fact of the matter is that
they are not livestock, they are not pigs, they are not sheep, they
are not bees, you don't do livestock things with horses. There
came a time when state law was changed to create llamas as
livestock and may be there will have to be some re -thinking of
that. Maybe our whole thinking of farm zones and agricultural
zones needs to be rethought anyway. Maybe what we are looking for
is open space and some issues compatible with open space. But
horses are not farmed and they are not livestock. I think the
staff's issue of whether an indoor arena or an outdoor arena, or if
an arena is allowed in this zone hinges on the fact if it is indoor
or outdoor, and I follow with the staff's position on that. But my
basic problem is that having the building and having the Moody's
ride around inside the building is one thing. Having this building
and having the general public ride around and conduct clinics,
which I think is training, which we know is disallowed in this
zone, and to also, continue to violate the ordinance with these
other activities is where we draw the line. So I think that the
arenas for the Moody's is fine or the owners of the property, and
I think that the line needs to be drawn that this use is not
allowed in this zone for the general public to come in. Then if
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you are going to have the general public come in, then let's go
through the whole thing just like you would for anybody else.
Let's have stamped engineering plans. Let's make sure that we have
paved adequate parking. Let's make sure that we have the loading
and everything else. Briefly, on the issue of the partition. The
partition in my client's point of view is not a major issue. But
the reason that we are opposing the partition at this point is that
we don't know what the Moody's are really up to and we won't know
until we have a site plan. We won't know where they are going to
put this and that as far as the parking and loading. So we don't
know whether or not that ten acres is going to be necessary or not.
Also, the other fact is that since you folks have a lawsuit, that
means that this entire piece of property is being in violation of
the Deschutes County zoning ordinance. I don't think it would be
proper for you folks to partition is at this time until that
lawsuit is taken care of.
Tom Throop: Questions for Greg? Go ahead Rick.
Rick Isham: Mr. Avedovech, when he opened his presentation,
raised a procedural issue stating that the appeal was not properly
perfected because within the time period provided in the ordinance,
only a fee of $100 had been paid. Could you respond to that?
Greg Hendrix: No. We paid our whole $800.00.
Rick Isham: Excuse me, you said one appeal, is that $800.00 for
one appeal?
Greg Hendrix: I got one planning and decision, and it has been the
practice in this County, even since Mr. Avedovech was a child, it's
been a long time I think, is that when there is one findings and
decision, you only have to pay one appeal fee. I have never heard
of paying more than one appeal fee, even when there are two or
three applications. I don't know that you folks have ever
addressed this one way or another, but I have never heard of such
a thing. I came and paid my money. I'll say this, that $800 is
too much for citizens to have to pay to come and talk to their
county officials when the Hearings Officer clearly makes a wrong
decision. He made a wrong decision in this the last time. These
folks had to pay $800 to deal with it. He made a wrong decision
and these folks $800 to deal with it. I take that back they didn't
have to appeal it the last time because you brought it up on your
own motion. Other than that they would have had to pay that, so
all I'm going to rely on is past procedures in the fact that I have
a receipt showing that I have appealed these findings and decisions
the hearings officer finds in decision. Do you know Mr. Isham
whether your procedures ordinance states that. It's real common for
people to apply for ...
Rick Isham: I only asked that because it was an issue that was
raised and you might want the opportunity to respond.
Greg Hendrix: Well, my only response is that I don't see anything
U_1 /"'`_' .- 'A
in the procedures ordinance that would show that Mr. Avedovech's
assertion is correct.
Tom Throop: Let me be clear on the fees question. The Community
Development Department is one hundred percent fee supported, and
the fees are determining the average amount of time necessary for
the activity the fee is intended to fund and that is the average
time for an appeal. And until the County gets a proper tax base or
some other form of revenue to impart support this department, we
have no other choice but to charge fees that cover the activity
because there are no other means to do it at this point.
Greg Hendrix: As I said before, God forbid I would ever be County
Commissioner, but the way I would approach it if I were you folks
is that instead of an $800 appeal fee, I would increase the
application fees $5 or $10 or something like that which in fact, if
you could say we generally only have 10 appeals a year, then spread
that a little bit better over the application fees. Now, I don't
have a problem with having some fee for an appeal, but I just think
$800 plus you have to make a transcript which often cost $100 to
$200 for some one to come up. $1,000 to come talk to your County
officials to say that one of your minions has done the wrong thing,
is too much money.
Tom Throop: Any other questions? Are there any other witnesses
on the opponents side that would like to testify at this time?
David A. Lehmann: My name is David A. Lehmann. I'm a neighbor of
the Moody's. I am opposed to this. One of the points that I would
like to address here is, realizing Mr. Fitch is not here to defend
himself, I know we have had some publicity in the paper as to some
of the problems that he has had with his property over in Redmond
since he was the Hearings Officer in this case...
Tom Throop: Let's talk about the substance of these issues and
not talk about Mr. Fitch, if you would please.
David A. Lehmann: Okay. We had to appeal this thing. We had to
pay money for this all from one persons standpoint on this. This
has been hashed over as Mr. Hendrix said, time and time again. The
main criteria here is is this compatible with the neighborhood and
it isn't. We've been fighting this for a year and a half and it's
still not compatible. And that is the crutch of the whole thing.
Tom Throop: What is your statement on why it is not compatible
with the neighborhood?
David A. Lehmann: There are no commercial activities going on in
the neighborhood whatsoever and we did not buy this piece of
property two years ago. There was no structure adjacent to our
property when we bought it. Had we known there was a commercial
activity that was going to go on, we would not have bought the
property. Now we have been fighting this thing for two years and
it is still not resolved. Therefore, I say it is not compatible
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with the neighbors and everybody there.
Tom Throop: David, how close is your place?
David A. Lehmann: I'm 100 yards.
Tom Throop: From your house or your property?
David A. Lehmann: My house. My property is adjacent. I abut
their pasture.
Tom Throop: What do you primarily do with your place?
David A. Lehmann: I have 21 acres of pasture.
Tom Throop: Any horses or cattle?
David A. Lehmann: It's irrigated. No I don't have any. I used
to board horses prior to my moving here, so that I don't have any
problem with. I have a problem with the commercial. That's all I
have to say. Thank you.
Tom Throop: Okay. Other questions? Thank you David. (a voice
requests to testify) Please come forward.
Sonny Wolf: My name is Sonny Wolf and I take on the issue of
compatibility with the neighborhood as our house sits 100 feet from
the barn, and less than that from the outdoor arena. I really feel
threatened and violated with this action. And that is basically
what I have to say. And also, on condition if you allow it and say
we'll let you do it on such and so conditions, who is ever going
enforce these. It never will happen. I just feel that this has
gone on and on. They moved in and built the barn. They started
their facility and said they would do such and so and it doesn't
even appear, as I have talked with Mrs. Moody, and still it's kind
of this is what we are going to do and we want to be good
neighbors, and it's just not happening. But the fact is that it is
just 100 feet from our house. If it is there, it is always going
to be there, and it is never going to be compatible with our living
and with our neighborhood.
Tom Throop: Questions? Are there other witnesses? Thank you
Ms. Wolf.
Larry Freedland: My name is Larry Freedland. I live
approximately 300 yards down White Rock Loop from the Moody's. I
have been directly involved in this thing through the whole
transition and the Moody's have constantly broken all of the laws
of the zoning and what have you. They originally constructed that
barn they knew exactly what they were doing because the proof is in
the pudding. They took out a conditional use permit and hung up
their little sign out there before they built the barn. This was
taken out by this realtor, LaFrankie. He is right in the phone
book as a farm broker and knows what you have to do. So, he knew
t
all the rules before he even began. After, I think it was a couple
of weeks or so, they took down the conditional use and proceeded to
build this barn and Deschutes County didn't do anything about it
because I really think they didn't realize the size of the
structure and what was going to go on there. They had hired this
fellow that does pole barns and he hit that neighborhood like a
locust, I mean there was ten guys working on this barn. They put
this thing up in, I'd guess, a couple of weeks only. The only
conclusion that I can draw is that they wanted to get it up, and
they figured nobody would contest it because they would just roll
over and say well, the barn is up here, what can we do about it.
Well, I just think that Deschutes County should have been on top of
this thing from the word go and it is kind of my opinion that this
thing just keeps going and keeps going that Deschutes County should
have to defend themselves and I kind of speak for all of the
neighbors in this area. I have been here 17 years in that area and
I raise cattle and am also an electrical contractor. If push comes
to shove, we have hit about half of the neighbors. If I explain to
them what the traffic situation is going to be if this thing is
allowed, I know a lot of the people in the immediate area that will
be up in arms. Dan Boone, who owns the Tom -Tom Restaurant, would
be one. He is kind of unaware of this. I know of several other
people that own 60 - 80 acre parcels that would be directly
impacted. If this thing is not nipped in the bud pretty soon, and
this is not a threat or anything, but I think I am going to have to
have a town meeting, so to speak, and get the whole area involved
in this. There is an attorney, and absentee attorney, that owns a
parcel of ground, 40 acres, right across from the Moody's, who
doesn't want to get involved unless he has to. Although he did
come down to several of the meetings that we have had contesting
this thing. He is totally on our side as far as the way the
situation is going. That is about all I have to offer, but I just
wanted to make sure that you people knew that from day one they
knew what was going down.
Tom Throop: Are there any questions for him? Thanks for your
testimony. Are there any other witnesses? Going once, going
twice. Okay, rebuttal from applicant.
Nancy Pope Schlangen: I would like to ask Sue Brewster a
question.
Tom Throop: Is Sue Brewster here?
Sue Brewster: I am Sue Brewster.
Nancy Pope Schlangen: Sue, you have lot more background in this
than I do. I've read it, but you have been working with it a long
time. Can you give me some background on what the Moody's were
cited for, when and what illegal activities, as far as our current
ordinances are concerned, are going on?
Sue Brewster: I don't have the file with me so I can't be exact,
but they were cited approximately a year and a half ago for an
illegal activity in a MUA-10 zone. They went to District Court on
that, I think twice, perhaps three times. They were found guilty
both times. We then started the injunction proceeding in Circuit
Court which is scheduled to go to trial on the 10th of next month.
The injunction proceeding has two parts to it. One is the land
use, having illegal activities in a MUA-10 zone, and the second
part has to do with the building as that they have absolutely no
permits and they have been allowing the public in there, and there
is also a dwelling in that building.
Nancy Pope Schlangen: There is a dwelling in the building?
Sue Brewster: That is correct.
Nancy Pope Schlangen: Is there someone besides the Moody's that
have use of it?
Sue Brewster: There was, but I don't know if that is currently
true. While I am up here, Ms. Wolf mentioned something about
commercial activities and if a commercial activity is allowed, then
enforcement will be impossible or hard, and that is true and will
muddy the water. We will have a hard time knowing what commercial
activity is allowed and what they are doing. That is an issue.
That is all I have at this time.
Tom Throop: Let me ask you that to your knowledge, using the
attorney's language of the opponents, is there the illegal activity
that was cited in District Court, found guilty in District Court,
subject to the Circuit Court activities, is that illegal activity,
as far as you know, still going on?
Sue Brewster: As of last fall when we inspected the barn. We did
see horses that appeared to belong to other people there. The
reason I say that is because there would be names and phone numbers
on the stalls that were for emergency contact at night. Our
assumption was that this indicated that the horses belong to
someone else.
Tom Throop: Other questions for Sue? Myer?
Myer Avedovech: Let me clarify a couple of things that were
just raised. The original citation was for the boarding, breeding,
and training of horses. That is what the original cite was or
violation of the code. We were under the miss -assumption in those
days that you could do that in an MUA-10 zone and that was probably
just my lack of understanding of the ordinances. Clearly, LUBA
educated me about that issue. As to the names on the stalls, they
are old names from old days, when my clients in fact, did do that
before we went to LUBA. The horses that were there at the site
visit belong to my client, as they have a number of horses and
those there were theirs. We were never asked when we were on site
by Ms. Brewster or any of the inspectors whose horses they were.
If they wanted to know, I sure wished they would have asked at that
time, then we could have solved that issue instead of making an
AI 0-� {l eq
assumption that that was what was going on. Also, the trial, as I
understand, is not for next month because Ms. Brewster just filed
a motion to continue it and I assume it will be continued to a
later date. I just got a copy of that motion the other day as she
has a conflict, so as I understand...
Sue Brewster: The motion was denied.
Myer Avedovech: Oh, is that right? I didn't hear that. Well,
I guess we are going to trial next month. I didn't know that.
Tom Throop: Sue Brewster, from the audience, indicated that the
motion had been denied. I am just saying that for the record.
Myer Avedovech: I am just going to take a couple minutes of
time for rebuttal. Our evidence is in the record. It is very
detailed and very involved. I believe Mr. Lehmann, if I am not
mistaken, is considerably further away than he indicated. He is on
the north end of the property, adjoining the other 5 acres that my
clients own. I think it would be closer to 1200 or 1400 feet from
the barn itself rather than the distance indicated, but he is on
the north corner, as I understand the property. There are some
maps that will show you where people live and things that are in
the file. That is my understanding, again, I could be wrong. Mr.
Hendrix did not disappoint me in his emotional plea and his attempt
to confuse the issue of a livestock arena with emotional hack on my
clients that they are bad people, therefore, they are not entitled
to apply for an allowed use in this zone. The only time the word,
and I can't remember it exactly as I should, as I have heard it
enough times, manure terrorism is one that he coined at one of the
hearings and continues to use every time he has an opportunity to
speak. However, since he is quoting people that he talked to, I
talked to the code enforcement officer, and he said that he could
never see a problem with it. He didn't feel that that was
something that needed to be cited for because it wasn't a problem.
My clients have taken care of the issue and have continued to do
that. I am glad Mr. Hendrix did correct himself, because the Board
appealed the first matter and not the neighbors. I would, and I
didn't bring it up with me, under definitions it defines livestock
in the Deschutes County zoning ordinances as "domestic animals of
types, customarily raised or kept on farms for profit or other
productive purposes." And I certainly think that horses easily
fall within that definition and that is one of the things that is
defined in the ordinance. I am not a horse person. I am a llama
person. But I did educate myself enough about horses to know that
there is a very large business in Deschutes County for horse meat.
I am aware of horse hide being used in a regular commercial
activity in this county for all kinds of things, so horses are used
in those ways, irrespective of Mr. Hendrix's feeling that they are
not. If you want us to get into the history of this and you want
to see what my clients have been doing, then I suggest you leave
this open long enough for me to submit the numerous letters and the
delays and the non -responses that I have received from my
correspondence to this County from various levels, trying to get
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answers to questions before we filed our livestock application, to
have clarification of what they wanted from us before we filed it,
and the long periods of time that went on between communication.
Some if it is probably justified as I am sure your staff is very
busy, and I am not trying to make a foot nail, but if you want to
raise who has been following through and doing much, then, in all
due respect, Mr. Hendrix is not privy to that information, he is
not part of that part of the application. I do not copy him on my
correspondence to the County, nor does he copy me. Even to the
point of copying me with a copy of his notice of appeal in this
case. That is not something that he is privy to nor should he be.
So, he does not have all the facts as to what is going on. I have
no idea as to what kind of loading dock he expects, but it is my
understanding that when you unload horses and other livestock, you
don't use loading docks, as my concept of a loading dock is a high
platform or something else. It is an area or space. Most of the
County people, inspectors and others that have been on the site
have numerous times have been pointed out where parking can happen,
where the unloading of horses or where the stock trailers can be
parked. They have walked it a number of times. They can see that,
they have seen it. The code officer has taken hundreds of pictures
of where those things are taking place. We can put that on a
formal site plan. We have never been asked for one, except through
Mr. Hendrix. A clinic is a seminar teaching people how to ride.
That is what it is. It is not training horses. It is to teach
people how to ride. It is a seminar. They bring in experts to
teach people how to ride and work with their horses. That is what
a clinic is. That is the same definition that I used last time we
made a presentation to the Hearings Officer. We heard a lot from
Mr. Hendrix of his information, but we don't have any facts. There
is no evidence presented and I ask you to carefully weed out his
simple statements and emotional pleas and emotional attacks against
my clients with the hard facts. And the hard facts are well
documented in this particular application. There is a voluminous
amount. If you read your procedure ordinance, you will find where
I started out with my suggestion that this is not properly before
this Board. It does not say that you get to waive an appeal fee if
the Hearings Officer or the County consolidates for hearing
purposes, an application. It doesn't say that at all. I will end
on one note, and its probably the first time in a long time that
Mr. Hendrix and I have agreed on much of anything, that the fee to
appeal a case is too much. It is absolutely too much. I like Mr.
Hendrix's suggestion of doing something else. It is not a part of
this, but I concur with him that we should not have to go to that
expense and I can tell you as someone who does some of this, that
I do know people that do not even come before the Board, because
they can not even afford to come and talk to you and that is a sad
state of affairs. I do hope that you do something to find your way
around that. Thank you.
Nancy Pope Schlangen: Since the citations, what activities are
now going on on the property and in the barn?
Myer Avedovech: They have their own horse activity, which they
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board and breed their own horses, not for commercial use, but for
themselves, which is allowed. They are not doing that as an
outside activity.
Nancy Pope Schlangen: They are not advertising the sale of
horses any more.
Myer Avedovech: They might be advertising their own horses for
sale. Yes, I am sure they are doing that. I don't know if they
are doing anything else. Are you doing anything else Denise? Oh,
they are doing some renting of the arena space for people that just
rent their horses there. That is what they are doing.
Tom Throop: How does that use work?
Myer Avedovech: They just rent the arena. Somebody can just
come and rent the arena.
Tom Throop: By the hour or whatever?
Myer Avedovech: Whatever. But there is no injunction issued
and there is no temporary restraining order against my clients.
Ms. Brewster filed some time ago, basically against boarding,
breeding and training, and then against the permits. And we are
trying to get permission to get the building permits for some use
and we are kind of caught in that little thing.
Nancy Pope Schlangen: Is any one living in the barn?
Myer Avedovech: No. That has been vacant. That was a
misunderstanding. My clients were going to have a caretaker live
up there and then when we were told no, it is vacant and there is
no one there, and there won't be. Unless there is a permit. As a
matter of fact, I suggested that they remove the apartment totally
from this application.
Tom Throop: Does it have bathroom and kitchen facilities in it?
Myer Avedovech: Yes.
(Denise is talking from the audience off microphone.)
Myer Avedovech: We want to convert it back into an office space
and tack room rather than an apartment. We are trying to figure
out what we have to do to make that conform, so hopefully, we will
get there.
Nancy Pope Schlangen: When were the permits applied for?
Myer Avedovech: These permits came as a private use
agricultural, when they went to build originally. In fact those
permits should be in the file, because I think we submitted them in
the original hearing some place. I can provide those again if you
would like. I don't remember the dates, but they were for private
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use, not for commercial use.
Nancy Pope Schlangen: So there was no site plan, no permits?
Myer Avedovech: Quite frankly, my clients were given some bad
advise by a builder. I can not undo that. I am not apologizing
for it. That is how it got there. My client would tell you the
number of times that if I could undo something I would, but I
can't.
Tom Throop: Let me follow up on Nancy's question. Is there any
illegal activity going on on the site now? Has there been illegal
activity on the site in the last year and a half? If the answer to
the first question is no and the second question is yes, when was
the illegal activity curtailed and why?
Myer Avedovech: The original activity was curtailed when LUBA
made the ruling about boarding, breeding and training of horses.
When that came down, and we said we can't do that, then it stopped.
I would probably get disagreement from Ms. Brewster because she and
I have not been able to agree on this issue since she has been in
the case. I do not believe any illegal activity is going on. I
base that on the fact that the County has not defined a number of
things in its ordinance. I don't know what renting means as
opposed to boarding for example. I have asked this question of
everybody that I can think of that could answer this question in
the planning and legal field and I have not had that answered.
Tom Throop: Is there renting over night?
(Denise is talking from the audience off microphone.)
Tom Throop: Denise, we need to have you up here if you are going
to respond.
Denise Moody: We would be more than willing to come to some
parameters if the County would describe what the parameters are.
LUBA came down and said boarding, breeding and training are not
allowable uses in a MUA-10 zone. So we said okay, what is
boarding, breeding and training? What is boarding? This County
does not define it. I have been asking for over a year because of
the injunction, because of the current permits, and the attorney of
the County will not respond. She says that the decision has to be
resolved through the other channel. So we can go on a normal
description of what boarding is which is to provide the services of
daily feeding of horses and such. So I changed my operation. I am
not going to deny that I am collecting money for rent of the
structure. What I want is some parameters of when I need a permit.
I have been under the understanding from day one, that any horse
that lives on your property that is not yours and collecting money
for it is a farm activity. It came as quite a surprise that it
isn't. That is what we have been trying to fix.
Tom Throop: Let me ask this. Are you boarding, breeding or
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training other people's livestock on your parcel in your operation
in your facility?
Denise Moody: I'll ask you to define it.
Tom Throop: Sure. Are you keeping any other horses over night?
Denise Moody: I have friends horses there. I don't charge them
for it. I have a group of friends who have been supportive of me
from the beginning, maybe five people that are friends and I rent
them the arena space. I collect money from them for arena space.
They bring their own food, they take care of their own animals. So
I am not in the boarding business.
Tom Throop: So, they leave their horses there. You are not
collecting rent for the boarding. They leave the horses there, but
you are collecting rent for the utilization of the arena. You
don't feed the horses, they feed them themselves?
Denise Moody: They provide their own food.
Tom Throop: They provide their own food.
Denise Moody: If you look up boarding in the dictionary, it is
like room and board which is food. So I said okay. We will do our
line until the County comes up with another one. I am not feeding
their horses, so I am not boarding.
Myer Avedovech: In addition, there is no vet work, there is no
stall cleaning, there is none of that that goes on provided by the
Moody's. Simply, they are willing to rent a structure, and the
care and responsibility and liability of those horses belong to the
owners, which I believe is outside the definition of boarding.
Denise Moody: We have also been trying to get an answer from Sue
as to if I have friends there and not collect any money, am I not
doing a commercial operation and then the violation that I would be
under would be the public use of the building which I would have to
change the ag building to a public use facility. If I let my five
friends keep their five horses there and not collect a dime from
them and don't take care of them am I not a commercial business?
Then I just have to change the public building?
Tom Throop: Other questions?
Barry Slaughter: So, if you take boarding, breeding and training
out of it what do you do? What is left?
Denise Moody: Renting space to ride in a covered arena.
Myer Avedovech: What we are trying to do is to file an
application for a livestock arena which allows the shows and the
other activities that the Hearings Officer approved. That's what
we are asking for. That is what we want to do. And that is what
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13
we think is left under the existing County ordinances is a
livestock arena.
Tom Throop: Sue would you come up? Any other questions? Any
other rebuttal remarks?
Myer Avedovech: No. Those were the only rebuttal remarks.
Tom Throop: Sue, I have two questions for you and there's
probably an infinite number of additional questions, but first one
is do you perceive just purely the renting of an arena for riding
activity as an illegal activity?
Sue Brewster: The illegal activity comes when they do not have any
permits for the building. You can't have public occupancy of the
building, so it doesn't matter what use they are bringing, you just
can't have the public there.
Tom Throop: Okay. The second one was the definition of
training. Is that training horses or is that training horses and
people?
Sue Brewster: Well that is where we muddy the water. I mean when
you train horses are you training the rider and when you give
riding lessons aren't you also training the horse.
Tom Throop: What is the answer?
Sue Brewster: I don't know. I think that is something that needs
to be defined.
Tom Throop: Defined legislatively or locally?
Sue Brewster: Well, locally sounds like that is an issue before
the Board. In terms of enforcement, once you allow one, you are
essentially allowing the other, because it could not be proved.
Tom Throop: I might just observe that we had a discussion for
about a half hour to forty-five minutes on Monday dealing with
horses and the obvious observation that there is some work that
needs to be done. There are some issues that were not anticipated
in the comp plan as originally adopted and clearly this
application, this proceeding is demonstrating some of these issues
that have not been resolved or clarified in the past and need to be
resolved. Any other questions for Sue?
Nancy Pope Schlangen: So the activity of renting or riding in
the arena would require a public occupancy permit and therefore is
an illegal use.
Sue Brewster: Right. That is what I think. It doesn't matter
that it is riding or what.
Tom Throop: Thank you. Greg, we will give you the opportunity
R .117 ^_4 " C
a
for rebuttal.
Greg Hendrix: Emotionalism aside, I think that we have provided
facts to show that the situation is not as the applicants have
tried to state it. Mr. Avedovech stated, and I think that his
clients did a couple of times here during the rebuttal period,
about that gee, we didn't understand this, and gee, we didn't
understand that. If that falls true, then why are they still
fighting the injunction? The injunction is only against things
that they say they are not still doing, then why are they still
fighting this injunction? Why were they found in violation in
District Court so many times? This isn't my information, these are
facts. Mr. Avedovech, I think was the most interesting part of his
rebuttal is that, does not deny that there are no permits. He said
that there are no permits and I appreciate the Commissioners'
questioning on this situation. What are you doing out there?
Well, the other thing that you did not ask and they did not say
that they are not doing, and I still say that they are doing, is
the horse shows. They are still advertising horse shows and having
people come in from out of the area, making dust and noise,
trailers and cars, and comings and goings. You know they start at
one time and then keep going and some stay over night, they take
care of things, then they move out the next day. The only response
from the applicant on why haven't you done this, why haven't you
done that, is the County has not told us. Well, the County has
filed a lawsuit against them, telling them that they do not think
that what they are doing is legal and they can't be done. Instead
of coming up with a site plan, instead of abiding by the law until
they do have permits, what they are doing is continuing to violate.
The admission is that they are collecting money for these various
activities even though we do not have any permits to allow the
public into this building. On the issue of the clinics, and I
think you hit the nail directly on the head, that on the boarding,
breeding and training of horses, that I do not think that you can
train the rider without training the horse. I am not a horse
person, but it just does not seem to me from the little that I know
about it. Let me just say this, I know people that are horse
people. I don't know how you can possibly train the rider without
training the horse. So that activity can not be part of the
conditional use. Again, we still don't know even after the
rebuttal, where the parking is going to be. We don't know the
number of parking spaces based on the requirements of the Hearings
Officer. Again, that is inadequate as it has to be done through
the ordinance which states how many parking spaces you have. We
still don't know where the horse trailer parking is going to be.
When I talk about loading, and let me be clear, it is where are we
going to put all of those horse trailers and if we are also
bringing in bailed hay, I think Ms. Moody stated that they have to
bring in their own hay because they can't grow it there and they
don't pasture the animals out there, so obviously we are bringing
trucks of bailed hay. Again, WalMart, Sears, G.I. Joe's have to
have a place for the big trucks to come in to dump this stuff on,
and that's just so that everyone knows where that is going to be
and it just doesn't happen haphazardly. If all of those other
folks have to have that, then these folks have to have it too. We
still don't know anything about the paving. I have never heard
anyone say anything about that I am wrong about the parking lot
having to be paved, another condition in this deal and Mr.
Avedovech never addressed that. We still don't know anything about
drainage and we still don't know anything about the lighting. I
think all of these issues need to be addressed until they file a
site plan and I think that the Commission should instruct these
people not to violate County ordinances until they have proper
permits. I think (there was an issue about the apartment in the
barn] that Ms. Wolf is prepared to testify that the caretaker and
his family lived there all last summer.
Tom Throop: Why don't you come up and let's get you on the
record if you have a rebuttal to make.
Sonny Wolf: Since these things have been brought up, I will say
that the caretaker and his family did live in the barn all of last
summer. I do not believe that they are there now, but they were
there last summer. The issue of manure, I am sorry that it has
been brought up, but it has. We are close, we are within 100 feet
range. Anytime that you have livestock, I don't care what they
are, you are going to have manure. At the moment it is not an
issue as it has been in the past. Looking down the road it could
be again. Where do you want it? Whether they are raising chickens
or whatever, it just as well be, when you have a large number. I
think on our side of the barn, I have seen as many as six or eight
horses along there. That's just on our side. So the barn has
facilities inside to board quite a few horses and has quite a few
horses inside. That speaks to me of a confinement area of
animals ... (off microphone). I did look in a law book and it spoke
to something about animal confinement. It is an issue. I am
sorry.
Tom Throop: We appreciate your remarks. We are going to close
the public hearing at this time and we will take no more... Yes,
Brian? (off microphone) Yes, please, that would be great. Staff
response?
Brian Harrington: Staff would like to make a couple of points.
First of all, to point out to the Board, that the burden of proof
is on the applicant to satisfy the criteria. As addressed in the
staff report, there was insufficient information submitted by the
applicant to adequately address that criteria. The Hearings
Officer sought to resolve the issue by imposing limitations upon
the proposed activities through conditions of approval. The
Hearings Officer basically defined the activity.
Rick Isham: I don't want you to mislead the Board. The burden
of proof is upon the one seeking the change according to Section
22.24.050. The appellant is the one that is going to overturn the
decision, so in this proceeding the burden has shifted to the
person filing the appeal. The original applicant... (A voice from
the audience disagrees.) Has that changed? (Voice from audience
continues, Bruce White.) -1 / "' ' ` /U
Bruce White: (off microphone)... it opens the entire appeal up and
I think the change that is still being sought here, because we
don't limit our appeals to specific issues, is as if the whole
thing starts again, so I think it would be my interpretation that
the burden still lies with the applicant.
Rick Isham: Well, when the ordinance was written initially and
this section hasn't been changed, the appellant is the one wanting
the change. This was written in 182 and maybe we should concur on
this. I think the record may be held open anyway for seven days
and maybe we could agree on an analysis there. Clearly we have a
difference of opinion in our office which I have not been aware of
until this very moment. I guess we will have to defer this.
Tom Throop: Let me tell the audience that these are the two
full-time practicing attorneys that work in our Legal Counsel's
office and we encourage them to speak up if there is a disagreement
and you obviously have seen that in action. You know what they say
about public policy and sausage, you don't want to watch either one
of them being made. But, we do encourage if our attorneys
disagree, we want to know that they disagree, and they have charged
themselves, but we'll charge them as well, to go back and get their
act together and come up with a single solution and they will get
back to us in seven days. So this is not unusual. We appreciate
the fact that they feel the freedom to step forward and contradict
each other if it is necessary.
Brian Harrington: In the Hearings Officer's findings and
decisions on condition #11 he did require a site plan review,
requiring landscaping, parking map with accesses. He addressed
this issue.
A voice from audience: Mr. Chair, as you indicate that...
Tom Throop: Come up, let's get you on the record.
Myer Avedovech: Myer Avedovech for the applicant. Mr.
Harrington just said that the staff report indicated there was
insufficient evidence submitted by the applicant. Subsequent to
that, a supplemental burden of proof statement was filed to address
the issues raised by the staff in their report. I don't want to
leave with the impression that didn't respond to the issues in the
report. That is why I keep insisting and ask you to go back and
review the file, because a lot of the issues like paving and things
have all been addressed. There is tons of information in there
that address each and everyone of those issues and I did not want
to take the time to do that, but I really think that it is
important to realize that we have been responding to that.
Tom Throop: Alright, let me ask you that, in fact, come up let
me catch you on the mike. Just to clarify your remarks, were you
responding to the initial application or with your statement of
inadequacy were you responding to the application plus the
subsequent submittals?
Brian Harrington: Staff would hold to that position plus the
submittals.
Tom Throop: Okay. We are going to go ahead and close the public
hearing and we will leave the record open for written communication
for seven days. That will be open until Wednesday, January 20,
1993, 5:30 p.m. Any written information may be submitted until
that time. We will take no more oral testimony. Shall we go ahead
and schedule a decision in this matter for Wednesday, January 27th
at our regular Board meeting. (Agreements followed) Okay, and
there will be no opportunity for testimony at that time, but anyone
can simply come and listen to our discussion and deliberation and
ultimate decision. If there is nothing else on this matter, we
appreciate your attendance and participation. We know that this is
a tough issue for everyone involved. We know that each and
everyone of you here essentially committed a day to be here. We
appreciate it, we recognize it, we understand, and that we're sorry
that you've got this issue. It is a reality and we are dealing
with it and again, we thank you for your interest and your
participation.