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1993-15133-Minutes for Meeting February 22,1993 Recorded 5/12/1993r. 0126-0724 93-15133', WORK SESSION MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS Monday, February 22, 1993 Chair Throop called the meeting to order at 10:03 a.m. $d ". members in attendance were Tom Throop and Nancy Pope Schlanc e - Also present were Rick Isham, Legal Counsel; Bruce White, Assistant Legal Counsel; Larry Rice, Director of Public Works; George Read, Planning Director; Brian Harrington, Assistant Planner; Mike Hall, Planner; Stacy Warren, Planner; and Paul Blikstad, Planner. 1. DECISION ON CU -92-177 & MP -92-56 FOR CAM MEYER Before the Board was a decision for the application by Cam Meyer requesting a conditional use permit for a farm dwelling on a 20 -acre parcel and dividing a 40 -acre parcel into two 20 - acre parcels in an EFU-20 zone. Paul Blikstad provided the staff report. Chair Throop asked that he discuss what the Board saw as issues at the Public Hearing and why the decision was not made along with the other decisions at the time. Paul stated the main issue was that of current farm use or currently employed in farm use. He said the eastern 20 acres that Ms. Meyer was proposing to build on was not currently farmed. He described the land as fallow and in need of work such as irrigation and fertilization. Ms. Meyer's farm management plan proposed to do those things. He stated the secondary issue was the nonconforming use status of two older farm dwellings on what was referred to as parcel one. He stated a letter was received from Jen Twining listing issues she felt were important which also involved those matters. Bruce White clarified the nonconforming use issue which he said was something that Jen Twining had raised again. He said he went back to determine what advice he had given at that time and what he had stated was he did not think the nonconforming use was really an issue. He said it would not be an issue in getting a second farm dwelling on the newly created parcels. He said if there was to be an issue with the nonconforming status of the buildings, it would have to be at the partition stage. He stated the Board had decided in the Adams' decision that it wasn't going to require pre-existing buildings that had not been "proven up" as farm dwellings to "prove themselves up" as far as the partition process, and it was felt that there was not sufficient standards in the ordinance to do that. Chair Throop pointed out that there was now a new Board of Commissioners and the new Board's interpretation was unknown. Bruce stated that was Rick Isham's opinion and that his opinion was the same. Rick questioned what opinion that was. t4xc?, 0�jV0 K - rHED 1993 21993 0126-0725 Bruce explained that the issue came up in the Adams' partition where there had been a previously issued farm dwelling on a basis of a 40 -acre parcel and there was to be a partition to make the 40 into two 20s. At that time, the question was whether, as part of the partition approval, they had to prove up that already existing approval on the 20 acres as opposed to the 40. The building permit had been obtained. The question was whether a use that was nonconforming had to be proven up again during the partition process. Rick stated that the key to that issue was the fact that they had a permit and there were no mechanisms within the ordinance to revoke a previously issued permit. Bruce said it also came up in the context that there was a provision of the partition ordinance that stated that it's in conformance with the zoning and comprehensive plan, etc. Rick stated the discussion was whether or not those general standards should be made specific and he understood the Board's decision was that using a general provision in this context was insufficient and that there should be some specific criteria. He said he did not know if that criteria had ever been developed. Chair Throop stated for the record that he would have clearly split on that vote. "It would have been a two to one vote." He stated he had been absent/excused during that decision. He said the decision was 2:0 and if he had been present, it would have been 2:1. Rick stated that one of the discussions at the Board level when it was approved was the absence of any criteria. Bruce White explained that this present issue was different because these buildings were so old they predated any kind of building permit process. Rick Isham referred to discussion on the Fennell case, which went to LUBA. He said, "under the ordinances that were in existence at the time of the application, that there was no means to review the existing residences and therefore, they were sort of deemed as non- conforming." He stated with anything coming up now, the old dwellings would have to qualify as a farm dwelling in addition to any proposed new dwellings. Bruce White said he did not "feel that there was a handle to make them prove up these prior existing dwellings." He explained that he meant prove them up as farm dwellings when he stated "prove up." Chair Throop asked if there was discussion about requiring the applicant, if they did apply for a building permit to upgrade the dwelling, to eliminate one of the two dwellings. Bruce responded that he was not sure if such a requirement could be done because of criteria in the zoning ordinance that talked about alterations of non - WORK SESSION MINUTES PAGE 2 22-22-93 0126-0'726 conforming uses. He thought one of the buildings was clearly a non -conforming use in that there were two on one parcel. Chair Throop asked if a partition would be denied a 40 -acre parcel in a 20 -acre zone with two dwellings on the site because there were already two dwellings on 40 acres unless one of those dwellings ceased to be a dwelling. Bruce White stated this went back to the issue of whether it was in nonconformance with the zoning ordinance given that one lot had two houses on it. Chair Throop said there was only one lot as there had not been an approval given. Bruce agreed that was correct and that the 40 acres had two houses. He said if it were to be split with one on each lot, that would be allowable. Chair Throop asked how it could be split into two parcels and leave both houses on one lot. Bruce responded that could be done under the theory that there was already a nonconforming use there and it preexisted the zoning ordinance. Because of that, no new non -conformity would be created. Chair Throop responded, "that sounds pretty weak to me." Rick Isham pointed out that the Fennell case was approved under that theory which was a 2:1 vote. He said with that case, there was a historic building and another building built in the 1970s on one parcel. He said there were no dwellings on the other two parcels in the Fennell case and that the majority of the Board determined that those would be in essence nonconforming on the parcel that had the two residences. Chair Throop asked if the primary issue during that case was whether he was creating farm parcels. Commissioner Schlangen pointed out that the two buildings did come up and were part of the record when it went to LUBA. Chair Throop asked for a description of currently employed. Bruce White stated that the threshold issue was whether the partition was to be approved or not and that the other issue of currently employed would only come up if there was a second lot. Paul Blikstad explained that the parcel was not currently being farmed but that the applicant planned to do so. Chair Throop asked if this was the new parcel that would be created without dwellings. Paul responded yes. There was discussion as to whether the applicant had mentioned cattle or not. Bruce stated she had mentioned horses but did not recall cattle. Commissioner Schlangen stated that the applicant had done the first 5 items on the plan and was waiting for the snow to clear at which time she would turn the cattle into the pasture. Commissioner Schlangen also said the applicant had been asked about the pasture and that cattle w' mentioned. Bruce White felt the applicant had said she owned WORK SESSION MINUTES PAGE 3 22-22-93 0126-0727 horses at the present time and that she was ambiguous in her plans. Chair Throop asked if the "currently employed" standard was tighter under the interim provisions than under the new provisions. He asked if the land, in the interim standard, actually had to be currently employed. Bruce responded yes, at some level, to get the building permit but did not have to be currently employed "today" in order to get planning approval. It needed to be currently employed for a building permit. Chair Throop asked if it had to be "currently employed" for a land use approval. Bruce responded that a conditional approval could be given based upon conditions that were certain to occur prior to the time a building permit was granted. Chair Throop asked what the threshold was that needed to be reached during the interim period. Bruce stated that question was being asked all over the state and that the Court of Appeals could not answer the question. He said the Court said it did not have to be complete implementation but said, "however much actual farm use under the rule may have been intended to require, the rule does not require the full implementation of all planned farm uses in all cases as a condition precedent to the building of a primary farm dwelling on any EFU parcel. We remand to LUBA to reconsider the issue." Bruce stated he was not aware of a final decision. Bruce said that it would be "safest" to require the infrastructure and probably some animals. Chair Throop questioned if he meant on the property, and Bruce responded yes. Chair Throop asked in Bruce White's opinion, under exhibit A, page 1 and page 2, if that was suf f is ient to obtain a conditional use permit, and if implemented, would that be sufficient to obtain a building permit. Bruce responded that it was sufficient to get a conditional use permit. He said the only question was "where along that continuum do you say they have done enough to get the building permit." Chair Throop asked if that was an issue for the Board at this time, and Bruce responded yes. Rick Isham stated that the hearings officer had specified "to complete through condition number 11 to get a building permit." Chair Throop clarified that what Bruce had said was "that this was enough to get a conditional use permit." He then asked if the hearings officer's decision that conditions 1 through 11 were required in order to obtain a building permit was supportable. Bruce stated he did not know. Chair Throop said the applicant had not contested it, "so let's assume it's fine." Bruce said assuming what the applicant proposed to do constituted farm use, the plan was sufficient for a conditional use permit. WORK SESSION MINUTES PAGE 4 22-22-93 0126-0'728 Chair Throop asked if what the applicant proposed constituted farm use. Paul Blikstad said he had not heard the applicant discussing cattle and that he recalled her reference to three horses. The recording secretary responded that in looking through the minutes of that meeting, she found no reference to cattle. Paul said that "working up the fields, having three horses, and taking hay off part of it was a farm use," but he still was unsure if it was enough of a farm use. Chair Throop asked if it wasn't the role of the planner to tell the Board if this constituted a farm use. Paul responded yes but he did not "have a number when it comes to horses." Rick Isham said he felt it was the Board who made the decision as to whether it was a farm use or not based upon staff recommendations. Commissioner Schlangen asked if the Board could change the hearings officers requirement from 1-11 to 1-15. Bruce responded that applied to the issue of when there was a sufficient farm use to obtain a building permit. Bruce White stated it had been the applicant's burden to prove that she had a farm use. Chair Throop said there had not been any contact with the applicant between the time of the public hearing and the time that the record was to be closed. He said the applicant had been present during the public hearing and saw ARLU DeCO testifying against her application. The Board had specifically left the record open for seven days for written response and no response had come from the applicant although a detailed response had been received from the opponent and that the applicant was not present today. He said he was beginning to draw the conclusion that the application was not sufficient enough to warrant an approval. Paul pointed out that the applicant was new to the process. Commissioner Schlangen agreed. Commissioner Schlangen asked about currently employed. Bruce said that currently employed was the state statutory standard and applied to both the old applications and the new applications. Chair Throop stated the problem was that the old applications did not have much specificity and hopefully there would be much more specificity. George Read commented that the Board was struggling in the same issue that had been a long-standing problem. He recalled the Williams' appeal, and said this was a very difficult issue. Rick Isham recalled the Hayes and Duntley case, a 60 - acre parcel, which LUBA found was not going to be regularly involved in the day-to-day activities of a farm use, and they upheld the denial. George said the test was "currently employed in farm use and intent to make a profit." He said if there was evidence that the applicant intended to make a profit, then how much you had to make in order to have a profit would need to be considered. Bruce White stated that WORK SESSION MINUTES PAGE 5 22-22-93 0126-0'729 the County may have tried to downplay how involved the day-to- day activities of the people had to be and he felt that it was important to note if the majority of parcels were in farm use, then the focus should be on the activities on the land, not the people. Chair Throop asked for further clarification. Rick Isham stated what was being said was that you don't have to be a farmer to obtain a farm dwelling. Chair Throop asked if it were the people or the activities and the land. Bruce White responded that it was the activities and the land. Chair Throop said he thought in order to approve a farm dwelling, the people occupying the dwelling had to be principally engaged in farming the land. Bruce said that was an issue that had come up since the Forester case where LUBA said, assuming you have a farm use and the land was principally engaged in farm use, meaning more than 50 percent, then one could qualify for a farm dwelling. Commissioner Schlangen asked if something could be added stating the applicant needed to own livestock before she gets her dwelling. She said that before the applicant built, she was planning to have the irrigation in, fertilized, starting sprinklers, and with hay cut before applying for the building permit. Chair Throop said his only question was the amount of livestock involved. George Read said the hearings officer had not specified what that amounted to. He said the opponent had raised a question regarding commercial agriculture and that issued needed to be addressed. Commissioner Schlangen asked if the purchase of livestock addressed that issue. Bruce White said a number would have had to be specified and nothing from the applicant said how much she proposed. Commissioner Schlangen asked if more details could be requested. Chair Throop responded that this was a perfect LUBA case. He said the only way to obtain more details would be to open the record, provide notice, and hold another public hearing. George Read agreed and said that more information was needed. Bruce White questioned at what point did an applicant have to "sink or swim" and if the applicant had failed in his burden of proof, would the Board always open the record to allow them to do that. George Read stated that after 45 minutes, they could not decide, therefore, the applicant also had a difficult time understanding what was expected of them and that this was a case that warranted "some leeway." Chair Throop stated that he agreed with giving the applicant another opportunity and that it would not be a standard practice. Chair Throop asked what an appropriate motion would be. Bruce said it would be to reopen the hearing. WORK SESSION MINUTES PAGE 6 22-22-93 0126-0'730 George Read said the Board was lacking direction. The application said they had three show horses and the question was if that were commercial farm activity. Bruce said that was not part of their farm plan. Commissioner Schlangen and Chair Throop both agreed that was the problem; the oral hearing said three horses and the farm plan said unspecified cattle. Commissioner Schlangen said the applicant may have met the criteria with the three horses and that they (the Board) were confused. Bruce White stated show horses might be recreation. Chair Throop said that the motion would then be to reopen the record, have planning staff send out notice and prepare information to come back to the Board, and that it should be an oral hearing. SCHLANGEN: I'll make a motion that we reopen the hearing and whatever else that includes. THROOP: Second. VOTE: SCHLANGEN: YES SLAUGHTER: EXCUSED THROOP: YES Commissioner Schlangen asked if a date was needed. Chair Throop said no and that both oral and written testimony would be taken. 2. DECISION ON CU -93-169 FOR WAYNE AND IRMA BEST Before the Board was a decision on CU -92-169 for Wayne and Irma Best requesting approval for a conditional use permit on a nonfarm dwelling in an exclusive farm use zone. George Read said that evidence had been submitted on the day of the final hearing in opposition and that the applicant lived out of the area and was not present. He said the applicant was unaware that this public hearing would occur. He said notice had been sent to them but had been "ignored." He said the Board closed the hearing with the applicant not able to respond to the submission by ARLU DeCO at the public hearing and had they been present they would have had the right to request that the record remain open to respond to the new evidence and issues raised by the opponents. George said that his initial recommendation was that there were significant issues raised that the applicant had no opportunity to know about or address. He recommended that the public hearing be reopened. SCHLANGEN: I move that we reopen the public hearing on CU -92-169. WORK SESSION MINUTES PAGE 7 22-22-93 0126-0'731 THROOP: Second. Stacy Warren stated that one of the main questions she was directed to do further research on was ownership and parcel size in the area. ( Maps were shown) She stated that she went to a four -mile area up to Millican and that there were a total of 340 parcels with 285 privately owned and 55 public. She stated 20 were known lots of record and the rest did not have information on them. Chair Throop clarified that every single one of them could be a lot of record but that research had not been done and would not have been done unless someone had applied for a lot of record. Ms. Warren also said that the majority of the lots were in separate ownership. Chair Throop said that five exceeded the lot size of the zone and that 2/3 were 10 acres or under in an EFU 320 zone. George Read said that on 340 parcels there were only two dwellings. He said that in the EFU 320 zone, over the last five years, only three or four dwellings had been approved and that it had not been a major issue. Chair Throop said that he would consider asking the Planning Commission to engage in a broader policy of making recommendations with a possible option being to ask the Nature Conservancy, or someone else, to buy the parcels since the area was a sage grouse and antelope wildlife combining zone. George Read said that there were numerous issues raised in the ARLU-DeCO concern. Chair Throop stated that a large issue of concern was whether conditional use permits for dwellings were approvable in the context of insufficient public facilities and services. He asked that the question of public facilities and services be explored further. Bruce White said there were provisions that required a consideration of immediate and future impact on public services, existing road systems, traffic, and irrigation distribution systems. Chair Throop stated he did not see how the Board could approve dwellings unless there was a fabric of public facilities and services to support the development. Bruce said that would need to be related to the particular criteria and he did not know if that criteria was included in the new nonfarm dwelling criteria. Chair Throop stated that would possibly be something for the Planning Commission to review. George Read said he felt it might be necessary to establish standards for what "we think this criteria means." Chair Throop asked about the wildlife issue. Bruce White said that it was necessary to refer to the criteria in the wildlife combining zones and that the criteria was not really directed at individual dwelling permits although there might be a fencing criteria because of the conditional use. WORK SESSION MINUTES PAGE 8 22-22-93 0126-0732 George Read said that Barry Slaughter was very concerned about people being served by cisterns and that this was the water source for the lot in question. Chair Throop and Commissioner Schlangen indicated they also were concerned with this type of water supply. George Read said that the level of water service was one that the comprehensive plan said should be looked at back in 1979 and never has been looked at. Bruce White said that this provision's immediate and future impact on public services was a very vague standard and that the Board would have to deal with how to interpret that and what kind of information it was looking for to make sure it was satisfied. He said that the Board did address some of those issues in the Byrum Road decision which was a county partition, not a farm partition, involving a 270 -acre parcel. George Read stated the comprehensive plan said, "No new lots shall be served by cisterns." He said this lot was existing and essentially met the standard for water service. He said looking at county -wide road standards, "we have no specific requirements for pre-existing subdivisions with unpaved roads prior to allowing dwellings," but that in the EFU zone there was a higher level of review. Rick Isham asked what the economic use was of a 10 -acre parcel east of Horse Ridge. George stated that because we haven't historically had houses, he didn't quite know what the use of these parcels were." He said one of the two dwellings was in Millican and that there was actually only one dwelling that was outside of the rural service area. Chair Throop said that the public process should be initiated and that staff should begin to "flush out" information. George Read said that several issues of opposition were raised and that the wildlife issue had been discussed. He felt that the unsuitability for livestock production was a good question because of the history of grazing. He said the applicant had stated there was no history of grazing and the opponents said there was. George felt that more proof was necessary. Bruce White said that the BLM should provide information as to if there were permit fees, and if so, how many cattle were allowed. George said that they had traditionally found with nonfarm parcels, even though the soils were class six, that on the dry parcels they were not suitable for farm use. Bruce White said that one of the primary issues was that of altering the stability of the overall land use pattern in the area, and one question was whether to only look at privately owned lands. He said that was a sensible approach. Bruce also said the only "resource type" would be wildlife considerations which were addressed through the wildlife area combining zone. He stated it may be that they would be WORK SESSION MINUTES PAGE 9 22-22-93 0126-0'733 considered to be mostly nonresource-type use parcels and did not materially alter the stability of the land use pattern. He felt there were "some interpretive issues here as well." Chair Throop said there were 340 parcels with 285 acres private and 55 acres public and asked what percentage was private versus public considering land mass. He stated he would presume that the public parcels were larger. Bruce White stated a graphic visualization could be obtained from the map submitted by Jen Twining. (They then viewed the map.) Chair Throop asked what effect altering the stability of the land use had on public lands. Bruce White stated the County had no permitting authority on public lands. He stated it was his thought that they would only look at the private lands for which we have the capacity to alter the stability and that had been his thought when he said it might be the way to approach this and that the universe would be just the private lands that we have an effect upon. He stated that we do have an effect on the private lands through our permitting processes. Bruce said that was correct but was not sure whether the scope should go that far or not. Chair Throop asked that Bruce obtain an answer as to whether or not the scope could go that far. Bruce stated that question had never been asked. Chair Throop asked if there would be the same argument if this was prime Deschutes Nation Forest land. Bruce White stated it would be more protective to include the public lands. Chair Throop stated it was not a matter of being protective or unprotective but wanted to know if there was an issue. George Read stated he felt there was a question and the issue raised on open range was a good case in point. He stated, that historically, this has been open range. George said that the parcel was fenced, so it wasn't open range and he didn't know what effect building would have on open range. Chair Throop called for the question. VOTE: SCHLANGEN: YES SLAUGHTER: EXCUSED THROOP: YES WORK SESSION MINUTES PAGE 10 22-22-93 DATED this o a day of 7-1-1& of Commissioners of Deschutes County, op, 0126-0'734 1993, by the Board ATTEST: Nancy Pope jSc4..Angen, Commiss -yk7 MAM� -�b Re ording Secretary Barry H. Slaughter, Commissioner WORK SESSION MINUTES PAGE 11 22-22-93