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1993-11616-Minutes for Meeting February 10,1993 Recorded 4/14/1993Aw . PUBLIC HEARING MINUTES DESCHUTES COUNTY BOARD OF COMMI49110WEht P"1 12' 01, February 10, 1993 1 SUE , 01 C n U NT Y C L E R, K Chair Throop called the meeting to order at 3:16 p.m. Board members in attendance were Tom Throop and Nancy Pope Schlangen. Also present were Bruce White, Assistant Legal Counsel; George Read, Planning Director; Kevin Harrison, Planner; Dale Van Valkenburg, Planner; Paul Blikstad, Planner; and Stacy Warren, Planner. Before the Board was consideration of six applications for permits in the EFU zone. Chair Throop explained that these applications were previously considered by the hearings officer after public hearings had been conducted and that today's hearings were on the Deschutes County Hearings Officers findings and recommendations on the six cases. 1. CU -92-177 AND MP-92-56/CAM MEYER The staff report was given by Paul Blikstad. The applicant, Cam Meyer, was seeking approval for a conditional use permit for a farm dwelling on a 20 -acre parcel, and a minor partition to divide a 40 -acre parcel into two 20 -acre parcels in an EFU- 20 zone. The farm dwelling was for the easterly 20 -acre parcel in the partition. Paul explained that the December 7, 1992, ordinance changed the criteria for review. He said that the hearings officer recommended approval subject to a farm management plan which the applicant submitted. The hearings officer required that items 1 through 11 of the farm management plan be completed prior to issuance of building permits so that the new 20 -acre piece to be created from the 20 would have an established farm use. Commissioner Schlangen asked if water was available. Paul stated that there was 35 acres of water to be split evenly between the two parcels. Chair Throop asked if the applicant needed to own the livestock prior to getting a building permit. Paul responded that this was not stated in the decision but that it could be added as a condition of approval. Chair Throop said that owning livestock was not part of the hearings officers decision and questioned if that needed to be part of the decision. He indicated that it was his understanding that in order to obtain the land use approval, one would need to submit a farm management plan and that the farm management plan would describe how the farm use would be instituted on the property. Then, after obtaining the land use approval based on the farm management plan, the applicant could then implement provisions of the farm management plan. Chair 3.' I .a. C 'a2. Throop also asked if someone made application today, would they have to own the livestock which would meet the gross income thresholds for the subzones. Paul indicated yes and that the County would also want to see a bill of sale. Chair Throop asked if that same provision would apply to this case and Paul said that in his opinion it would not. Chair Throop opened the public hearing. Cam Meyer, P.O. Box 5953, Bend, Oregon, said the two 20 -acre parcels were within the median ranges of the surrounding area. She said the median water was 11 acres and that her parcels would have 17.5 acres of irrigation water each for a total of 35 acres of water on the 40 -acre parcel. She said that she had started the implementation of the farm plan and had completed the application for the sanitary permit. She said she had completed 1 through 3 and also the permit for the access but that she needed to wait for the snow to melt before she could proceed further. She said her plan was to put the back half into hay and the front into pasture for livestock. She stated a house was necessary in order to provide care for the animals and security to the premises and that the proposed homesite was on a "rock pile" and was not farmable because of shallow soil depths. She said the rest of the property would be open land. Ms. Meyer said the western portion of the property was currently in alfalfa and grass hay. She explained that the eastern portion had been placed in the land bank by the previous owner and upon her purchase of the property, he had removed it from the land bank. Since that was April of 1992, there had not been a full growing season and she did not have time to plant that area last year. She said they were "ready to go" this year and that it had been fenced. She also indicated that she would "probably sell" the western portion, the one with the two older homes, and build a new house on the eastern portion. Jen Twining, P.O. Box 1508, Sisters, Oregon, said she represented ARLU DeCO and that she had not read the decision. She said it was not clear to her but that it seemed as though some of the old standards that these applications were adhering to and fall under were co -mingled with some of the new standards. She said she was not aware that there was such a specific farm management plan under the old standards. She said she was not challenging but wanted to make clear if old or combined standards were being used. Chair Throop asked that the question be held until Bruce White arrived as he was also unclear as well. Ms. Twining said she also had questions about the hearings officer's approving the partition and also the tentative PUBLIC HEARING MINUTES PAGE 2 2-10-93 _rt .ems C�3�� approval for another farm dwelling on the new parcel as the applicant currently had two dwellings on the 40 acres. Chair Throop clarified that the 40 -acre parcel already had two dwelling and that the applicant's plan was to divide the 40 into two 20's with both dwellings staying with one of the 20's and with a third dwelling to be built on the second 20 acres. He clarified that Ms. Twining questioned the propriety of that plan as the two dwellings were situated close together and would be very difficult to partition under separate parcels. Paul explained that the dwellings were 50-60 years old and that if someone were to buy the land, staff would have to "seriously look at what they were proposing should they wish to upgrade either one." He said his personal feeling was that one of them "would go" with any attempt to modernize or remodel and that there was a certain threshold that would have to be met with the new farm zone standards for that subzone. Commissioner Schlangen asked about the age of the dwellings. Ms. Meyer responded that one was built in 1912 and was non - insurable and that the other was built in 1949 and was "barely" insurable. She described each as about 1500 square feet. She agreed that one would probably go but said that was not currently planned and both were inhabited with Ms. Meyer living in the 1912 home and farm assistants in the other. Chair Throop questioned Bruce White regarding "what standards are we dealing with and how does that relate to what the proper elements of a farm management plan should be" since the application was submitted prior to the adoption of the farm package and after the ARLU DeCO, County, DLCD agreement which required the applications to go to both the hearings officer and the Board of Commissioners. He also asked about the farm management plan that was submitted as part of the approval which required a number of steps to be completed prior to the applicant's receiving a building permit and the fact that no requirement was made for a bill of sale and ownership of livestock. He said there was a requirement that pastures, alfalfa, and fencing be in place. Bruce responded that the further removed an applicant got from actual "current employment" the shakier the basis for the decision was. He said the clearest appellate case was Miles vs. Clackamas County. In that case, the owners had title to the livestock and were simply going to move them onto the premises. He said that was a clear case of "current employment." He stated that you could have a conditional approval conditioned upon improvements being in place and already owned livestock being put on the land. In this case it was his understanding that the management plan would have the applicant buy livestock at some point in the future after the building permit. The issues was whether the applicant PUBLIC HEARING MINUTES PAGE 3 2-10-93 should be required to have livestock on the land prior to the building permit. In response to questions about whether it was appropriate under the applicable standards to consider whether the applicant had livestock on the property, he said what the County was trying to do was meet the criteria for "current employment" in farm use, which had always been the standard and that the question was what did a person need to show in order to meet that standard. He said that the farm management plan, although not specifically required as an element of approval, was one way of showing that the standard had been met. He did not feel it was improper to consider a farm management plan and that it bolstered the applicant's case to have such a plan particularly in conditional situations where the property was not physically put to a farm use at that point. Chair Throop asked about a farm management plan that only dealt with the infrastructure and did not deal with ownership or potential income from livestock. Bruce responded by saying that the further away you got from having a physical presence on the land of some farming, the less supportable the County's decision would be. He said that the contours of some of the issues were being defined by individual cases that were going into court and that he could not give a precise answer on what would and would not apply. Chair Throop clarified for the applicant that if this application were to be approved and later appealed to the Land Use Board of Appeals, she would be in a weaker position the further away the land was from being currently employed in farm use and that a farm management plan was one step to being currently employed in a farm use and that having a deed to livestock was important. Ms. Meyer stated she owned three horses at the present time and that they were on the other 20 acres in corrals and that they needed to get into pasture. She stated her plan was to put the property in question into production and to use it. She also said that she only had three horses at the present time because she did not want to overcrowd them. Chair Throop said that if there was a bonafide bill of sale or demonstration of ownership of the livestock, that would constitute qualifying farm use and make the application stronger. He explained that the County was in a transitional period where they were not dealing with the new standards but were dealing with an interim set of standards. Commissioner Schlangen said she felt some of the standards were being met since before a building permit was obtained they would have planted the alfalfa and grass and since there was a use for it, then could be considered an agricultural use. There was further discussion on whether the County's new farm PUBLIC HEARING MINUTES PAGE 4 2-10-93 ordinance changed the definition of "currently employed in farm use." Bruce White stated that the standard --currently employed in farm use --had not changed, but that under the new ordinance, the County had a better idea of what consituted "farm use." George Read said the present farm ordinance required a two- stage review with stage one being the need for a farm management plan to receive a conditional use approval. In order to receive a building permit, it would be necessary to establish the farm use or own the animals. It would also be necessary to show that the farm management plan would be capable of producing the dollar amount of the subzone. He explained that the difficulty under the applicable ordinance was there was no dollar amount in the subzone and the only criteria was "currently employed." Chair Throop asked Jen Twining's question regarding the parent 40 -acre parcel with two older dwellings. He asked Bruce if he saw any difficulties with those dwellings which were located closely to each other on one of the two 20 -acre parcels that would be created and with the new dwelling being placed on the newly created parcel. Tom explained that the two dwellings on the same building site would be on the residual portion of the parent parcel. Bruce responded that this was an issue that had never been resolved statewide and that this essentially was a nonconforming dwelling. When Chair Throop asked about applying a condition, Bruce responded that the issue of the existing dwellings pertained to whether the partition could be approved. If the partition could be approved, then the focus would be on the second lot and you would look at whether the farm dwelling could be approved on that lot. Commissioner Schlangen asked if a condition could be placed on the first parcel and not the newly created one saying that if any modernization would happen to either building, there would only be one building. Bruce referred to the Adams' partition, decided in December 1992. In that case, involving a split of a 50 -acre parcel into two 20s, there was a pre-existing approval for a farm dwelling, approved on the basis of a 40 - acre parcel. The question was whether during the partition process it was necessary to reprove up that previously approved farm dwelling on the basis of the proposed 20 -acre parcel size. Based upon the lack of clarity in the partition standards and the County's past practices in this regard, the Board had concluded that in approving partitions, it would not deal with the issue of non -conforming dwellings. Chair Throop asked if someone would later come in to upgrade the non -conforming use if there would only be one residual PUBLIC HEARING MINUTES PAGE 5 2-10-93 dwelling and would a condition be appropriate. Bruce responded that he was not sure. Chair Throop asked for further testimony. Fran Everton, 1282 N.W. Trenton, Bend, Oregon, stated she was confused about the number of horses, why the applicant would have more room with the 20 acres in consideration, and what constituted a farm. Chair Throop said his interpretation was that the applicant would take the 17.5 acres that would have water appurtenant to it and that she would put half into pasture and the other half into a crop for forage for the livestock. There would also be a full set of infrastructure including irrigation, fencing, and shelters to meet the critical mass necessary to constitute a farm use and that on the other property that had not been the way the parent parcel had been administered to date. Chair Throop explained that, if approved, two farm parcels would be created and the difficulty was that the County was in an interim period and that "we don't have the specific gross income thresholds by subzones that we apply applications to; we are dealing with the more general standard, which is currently employed in farm use." Ms. Everton questioned if both portions would have the water they needed and take care of all the animals that they would need to be a farm and meet the criteria. Chair Throop said that was what the applicant was applying for with this application. He said the applicant was not making any judgments on what a subsequent owner of parcel one would do but what she would do on the newly created parcel. Ms. Meyer explained that the western portion was currently under hay and that was why the horses were in corrals as it was not suitable to put the horses out in the hayfield. She also said that the field yielded 64 tons of hay in 1992 and was clearly in farm use. Chair Throop asked if she would be selling that property as a farm parcel and Ms. Meyer responded yes. Chair Throop asked for further clarification on the issue of the non -conforming dwellings. If someone were to come in for an upgrade of the existing home on parcel one, would there be a requirement that that parcel continue farm use in order to upgrade that non -conforming use? Bruce White responded that he had checked the language of the non -conforming use provision of Title 18. Under those provisions the question was under what conditions could alterations of a non -conforming use occur. He didn't believe that reference to the farm use of the property was relevant PUBLIC HEARING MINUTES PAGE 6 2-10-93 under that criteria. Each of the houses would already be a non -conforming use and the criteria was not aimed at bringing such uses into conformance with the ordinance. The focus was on whether alteration or expansion created greater adverse impacts. Jen Twining offered additional testimony. She stated she would like to request that the record be kept open in order to look at information further. She also questioned if it were permissible to partition. Bruce White responded that the issue had not been addressed at the state level thoroughly and that there was not anything in the ordinance that said all houses must be in conformance. Chair Throop asked for any rebuttal. Being no further testimony, Chair Throop stated the record would be left open for seven days to allow written testimony only and that there would be no further oral testimony. The closing date and time for written testimony was set for February 17 at 5:30 p.m. He stated the decision would be make on Monday, February 22, 1993. 2. CU-92-180/JAMES AND PATRICIA JOHNSON Stacy Warren gave the staff report. She stated the applicant was requesting a conditional use permit for a nonfarm dwelling on a 20 -acre parcel zoned EFU-20 and that the property was located on Butte Ranch Road, 3/4 of a mile west of Horse Butte Road. There was no irrigation to the parcel and the surrounding area was predominantly characterized by small scale farm use and single family dwellings. The hearings officer approved the request on December 15, 1992. Chair Throop opened the public hearing. Jim Johnson, 61580 Range Place, Bend, Oregon, the applicant, said it was clear from his application and the hearings officer's analysis that the property was, at best, marginal as farm land. To his knowledge the parcel had never been farmed. He said his dwelling would not materially affect the neighboring parcels and that there was unanimous support from the Horse Butte Homeowners Association for his and all other conditional use permits applying to properties within the development. Gary Fowles, 21775 Rickard Road, Bend, Oregon, said he had followed the history of the land for several years. He said that the property had once belonged to Blue Rock Concrete Products whose full intention was to mine the land for its cinder and fill dirt. He said at least a portion of the land had been part of the surface mining inventory. Investors had bought a total of 320 acres and decided not to pursue the PUBLIC HEARING MINUTES PAGE 7 2-10-93 3. potential mining resource and applied to the county for a change in zoning to EFU. He said the land had virtually no agricultural use and that using the sites for homes was a much better application for the land than the surface mining had been and was the best outcome that could have been hoped for. Being no further testimony, the public hearing was closed. SCHLANGEN: I would like to make a motion to the Chair that we uphold the hearings officer's approval on a nonfarm dwelling. I have read over the "I love the BLM lands" under the most liberal guidelines possible of supporting 2AMU. With no irrigation, it's not on farm deferral, I move we uphold the hearings officer's decision. THROOP: Second. VOTE: SCHLANGEN: YES SLAUGHTER: EXCUSED THROOP: YES CU-92-183/KENNETH R. HOLMES Stacy Warren provided the staff report. She stated the applicant was requesting a conditional use permit for a nonfarm dwelling on a 20 -acre parcel zoned EFU-20 and located in the same general area as the previous application, at 21680 Butte Ranch Road, Bend. The property had no irrigation rights and the surrounding area was primarily small scale farm use, hobby farms, and single family dwellings. She said the soil was class 6, 7, and 8. The hearings officer had approved the applicant's request on December 15, 1992. Chair Throop opened the public hearing. Ken Holmes identified himself as the applicant. He reviewed the conditions of approval. He said there was no change in condition 1; on condition 2, the building permits were in the process at the time of today's meeting; on condition 3, a septic plan had been approved and permits were waiting on the outcome of today's meeting; on condition 4, an access permit was in the process of being obtained from County Public Works; on condition 5, there was a clear address sign present; and on condition 6 , the road would be widened as soon as the snow cleared. Being no further testimony, the public hearing was closed. SCHLANGEN: I would like to make a motion that we accept the approval of the hearings officer on the PUBLIC HEARING MINUTES PAGE 8 2-10-93 request for a nonconditional use permit for a nonfarm dwelling. THROOP: Second. VOTE: SCHLANGEN: YES SLAUGHTER: EXCUSED THROOP: YES 4. CU-92-169/WAYNE AND IRMA BEST Stacy Warren provided the staff report. She stated that the applicant was requesting a conditional use permit for a nonfarm dwelling on a 10 -acre parcel in an exclusive farm use zone located on Spencer -Wells Road off Highway 20 approximately 4 miles west of Millican. There were no irrigation rights on the property. The soil classification was 6 and there was only one dwelling in the area. She said there was no historical evidence of farm use on the parcel. The hearings officer approved the application on December 1, 1992. Chair Throop asked about the propriety of installing a cistern and hauling water. He asked if that was an acceptable means of providing water and if there was a provision for a more permanent water source. Stacy replied that there were no comments from the environmental health division regarding that and was not aware of any such requirement. Kevin Harrison commented that there was nothing in the zoning ordinance or comprehensive plan that required an on-site well or a municipal or community water system. He stated there was language in the plan that commented on the inappropriateness of using ditch water. He said there was really nothing that specified the source of water on an existing lot. Chair Throop requested a broader picture of the uses in the surrounding area. Stacy pointed out that the property was not directly off of Highway 20 and that there was one parcel between it and the highway. She said it had been a 40 -acre parcel made up of four 10 -acre parcels, owned by the same person and never employed in farm use and that the owner now wanted to build on one of the 10 -acre parcels which were legal lots of record. She said there were several private ownership parcels in the area but not established as legal lots. The zone was EFU-320 and was intermixed BLM with small private ownerships. Chair Throop asked why that immediate area did not go "exception area" and asked if it would have required dwellings. Bruce White responded that to be an exception it would have had to be committed or built. He said the question was if it was committed enough. PUBLIC HEARING MINUTES PAGE 9 2-10-93 5. Chair Throop said that the area had one dwelling, was not established as rural residential or farm use and that there were several small properties in the area which were owned by various individuals. He asked if the County was initiating a pattern for a new sagebrush subdivision being developed in that area. Bruce responded that if they were all similar it could be that it could set a precedent to start that process. Bruce also said there was a provision in the nonfarm dwelling standards that addressed this issue. Chair Throop asked if a denial might institute a "taking case" and if there was any residual use of that property. Bruce responded that he did not know if there was any residual resource value to the site. Chair Throop stated that he would need other information before he felt qualified to make a decision. He then opened the public hearing. Jen Twining, P.O. Box 1508, Sisters, Oregon, said the issue was "what could the small piece of property do i.e., could it be recombined." She said she would like to see the record remain open. Chair Throop asked if blocking the parcel with other parcels for an agricultural use or participation in a lease operation had been explored. Stacy said that none of the surrounding properties were currently employed in agricultural uses so that had not been addressed. Bruce White asked why the property was unsuitable. Stacy responded that it was the soil and no irrigation. Bruce said that blocking the parcel up did not appear relevant. Being no further testimony, the public hearing was closed. Chair Throop stated he felt it was important to keep the record open for seven days for written testimony. The deadline for testimony was Wednesday, February 17, at 5:30 p.m. The decision was scheduled for February 22, 10 a.m. Chair Throop asked staff to research the pattern of ownership within approximately two to five miles; how much was private and public, the sizes, the history of the creation of parcels, and how many were lots of record. He stated for the record that the reason he felt it necessary to pursue this was that there was no development in the area and this could be a "classic sagebrush subdivision" which might develop into dozens of homes. CU-92-178/JOHN BIOCINI Stacy Warren presented the staff report. She stated the applicant was requesting a conditional use permit for a PUBLIC HEARING MINUTES PAGE 10 2-10-93 nonfarm dwelling on a 5 -acre parcel zoned EFU. She stated the property was located off Rickard Road on a gravel easement approximately 690 feet north of Rickard Road. There was no irrigation and had class six soils. The parcel had not been employed in farm use and the surrounding area was primarily hobby farms and single-family dwellings. The hearings officer recommended approval on December 15, 1992. Chair Throop opened the public hearing. Being no testimony, the public hearing was closed. SCHLANGEN: I move we uphold the hearings officer's decision and approve the nonfarm dwelling. THROOP: Second. VOTE: SCHLANGEN: YES SLAUGHTER: EXCUSED THROOP: YES 6. CU-92-182/JILL AND VANCE ARMSTRONG Stacy Warren gave the staff report. She stated that the applicant was requesting a conditional use permit and a surface mining impact area review for a nonfarm dwelling on a 19 -acre parcel zoned EFU. The property was located on Arnold Market Road 655 feet south of Rickard feet. There was no irrigation rights and the soil classifications were 4, 6, 7 & 8. The parcel had not been employed in farm use and the surrounding parcels were primarily hobby farms and single- family residences. Chair Throop opened the public hearing. Being no testimony, the public hearing was closed. SCHLANGEN: I would like to make a motion to uphold the hearings officer's finding of approval. THROOP: Second. VOTE: SCHLANGEN: YES SLAUGHTER: EXCUSED THROOP: YES DATED this � day of 1993, by the Board of Commissioners of Deschutes County, 0 pn. PUBLIC HEARING MINUTES PAGE 11 2-10-93 Tom hroop, Chair ATTEST: Nancy Pop ` c an en, Commiss o 2b2aQ.k►,= -h>" Recording Secretary PUBLIC HEARING MINUTES 8C.CZ1'aa B. H. Slaughter, Commissioner PAGE 12 2-10-93