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2000-80-Minutes for Meeting February 09,2000 Recorded 2/22/2000VOL: CJ2000 PAGE: 80 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-80 * Vol -Page Printed: 03/01/2000 16:16:35 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Feb. 22, 2000; 10:59 a.m. Regular Meeting (CJ) NUMBER OF PAGES: 15 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK KEY 4',11HED MA 2000 E 2� 00 FEB 22 ASD*d of Commissioners 1130 N.W. Harriman, Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.co.deschutes.orus Linda L. Swearingen Tom DeWolf Dennis R. Luke MINUTES OF HEARING - CONTINUATION DESCHUTES COUNTY BOARD OF COMMISSIONERS MEETING WEDNESDAY, FEBRUARY 9, 2000 Chair Linda Swearingen opened the meeting at 11:00 a.m. Commissioners present were Linda L. Swearingen, Dennis R. Luke and Tom DeWolf. Also attending were Bruce White, Deputy Legal Counsel; Paul Blikstad, Community Development; the Applicant, Dan Kiesow; and Several Other Citizens. 11 RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS CONTINUATION OF A PUBLIC HEARING to Consider an Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18. (This is a Conditional Use Permit for a Non -Farm Dwelling on a 3 -Acre Parcel That Would Be Created by a Partition of a 39 -Acre Parcel into a 3 -Acre Parcel and a 36 -Acre Parcel; Applicant: Daniel Kiesow; originally Daniel Kiesow for Christine Watkins.) BRUCE WHITE: I am Bruce White, Deputy County Counsel. In regard to the Hearings Officer's finding regarding areas that are otherwise unsuitable, because livestock can loaf there, does that make that portion productive for producing livestock. I am not so sure that the case that the Hearings Officer uses to support that position necessarily compels that result. I wanted to put that on the record in case you had questions about it and so that the parties can address that issue. Minutes of Continuation of Hearing to Consider an Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18 (Kiesow/Watkins) Quality Services Performed with Pride February 9, 2000 Page 1 of 6 Pages MARTIN WINCH: I am Martin Winch, and I own property just north of the subject property, about 1/4 -mile away. I am the one who challenged Dan Kiesow's application in the beginning. SWEARINGEN: It appears that only one of those who are to testify has property actually abutting the property. Discussion then ensued about the location of various properties to the subject property. MARTIN WINCH: (Distributed a two-sided page of color photos of the area around the subject property, Exhibit 1.) DEWOLF: I did a site visit and want to clarify that I was looking at the appropriate area. (Discussion ensued, and it was determined that Commissioner DeWolf did view the correct area) MARTIN WINCH: I want to say that I support the analysis of the Hearings Officer with respect to the finding that the proposed non-farm dwelling materially alters the stability of the overall land use pattern of the area. I did testify at the originally hearing about the fact that it is truly an agriculture area, and that this proposal would have a destabilizing effect. Regarding the unsuitability of the property for the production of livestock, I believe the rule talks about the parcel as a whole. I don't feel that the suitability issue refers to the smaller parcel. I also think that County Code should mirror State law. The purpose of EFU zoning is the long-term preservation of farmland. There is not real desire to create a new farm, just a dwelling in a farm area. In the question of creating parcels, I want to refer to a tax lot map from the late 1970's. (Exhibit 2) I am also concerned about the use of irrigation water on this parcel. (He then read over portions of the Hearing Officer's decision, at length) SWEARINGEN: Minutes of Continuation of Hearing to Consider an Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18 (Kiesow/Watkins) February 9, 2000 Page 2 of 6 Pages S WEARINGEN: We have all read the report; thank you for your input. STEVE PUTNAM: I am Steve Putnam, a dairy farmer; my family has farmed in the area for over fifty years. (He explained where his property is on the oversized aerial photo provided by Community Development.) PUTNAM: It all comes back to the stability issue. It is a great place for a house, but subsequent owners may not like the agricultural environment, consisting of odors, dust, noise, flies and so on. My farm may be the only one making a living in the area now; however, with greenhousing and bioengineering could change this. A long-range view is important; is this going to be a bedroom community for Bend, or farmland? I am concerned about the trend, about a 3 -acre island in the middle of EFU land, which is not a good thing. Some people may want to sell off small portions just to increase their cash flow. JOHN FIELD: I am John Field, and I own the adjacent property to the west. I have a lot of respect for my neighbors, and relationships between those in the area have been very harmonious. The land we're talking about is a big rock shale area, which also protrudes onto my property. It is not farmable ground; it's three acres of rock. I don't envy your decision. There appears to be a hodge-podge of zoning in the area. There have been ten or eleven expensive homes built near my property recently. Regarding the noise factor, there are just two people left in the area who make noise at night, one of them being me, baling alfalfa, maybe four nights a year. There is also noise from weaning, and dirt and dust, which most people accept as normal. I am probably one of the worst offenders, and I have never had a complaint from the neighbors. SWEARINGEN: People living there have to realize that farmers have the right to farm. Minutes of Continuation of Hearing to Consider an February 9, 2000 Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18 (Kiesow/Watkins) Page 3 of 6 Pages JOHN FIELD: At least this property is on the edge of the farming area; others have not been. Some houses have been built really in the middle of things. It's amazing what they are willing to pay, too. LUKE: Are you in favor or opposed? JOHN FIELD: I don't feel there will be a big impact if this is split off and built on. I am somewhat indifferent to the decision. DAN KIESOW: I am Dan Kiesow, the applicant. I would like to submit my statement again, which was previously submitted into the record. To clarify, it is not a flag lot; it started out that way, but it is now clear it is a dedicated County road, although we may be required, and are willing, to increase the width. PAUL BLIKSTAD: It is a 30 -foot wide, dedicated road, and it will probably need to be widened to 60 feet. DENNIS LUKE: To clarify the right -to -farm laws, they do not keep someone from being sued, it just gives them standing in court. DAN KIESOW: There is always the potential for conflict, farm neighbors or not. TOM DEWOLF: You must concede that anytime you are adding more to anything, there is more opportunity for conflict. DAN KIESOW: (Presented a two-page bullet list and map, Exhibit 3.) To respond to Martin's comment, this was created as a legal lot of record in 1981. I feel the Hearings Officer compared apples to oranges. Minutes of Continuation of Hearing to Consider an Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18 (Kiesow/Watkins) February 9, 2000 Page 4 of 6 Pages (Submitted copies of letters from John Field and Judith Tracy, Exhibit 4) Mr. Field and Ms. Tracy, adjacent neighbors, feel there is no potential for conflict, and feel I would not be taking out farmable land with this split. There will still be five acres of dry lot after deleting homesteads, ponds and buildings. Tumalo Irrigation District has remapped water off the property, and the State is amending the map right now. The raised land and the ditch will keep water off the subject land. I made the application in good faith. This is a property rights issue, not a matter of public opinion. I feel it meets requirements without stretching the facts and torturing the statistics. I spent thousands of dollars and many hours based on the County's support of property rights before deciding to pursue this. Please support staff findings and not those of the Hearings Officer. DENNIS LUKE: Some people apparently can't testify today because they didn't sign up last week. Can the record be kept open for new testimony? BRUCE WHITE: You set the rules, so it's up to you. LUKE: It will be two weeks until the next regular Board meeting. LINDA SWEARINGEN: Just because Dan submitted this in writing, I don't think he should be penalized; he has always had the right of rebuttal after hearing testimony. There's no legal requirement to keep the record open. WHITE: Even though you stated the fact that there are others here, at this point they don't have any rights to address us at all. You don't have to extend new rights to folks that you weren't going to recognize in the first place. If there is new material in that, by leaving the record open it gives the parties that you have already recognized the right of rebuttal. Minutes of Continuation of Hearing to Consider an February 9, 2000 Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18 (Kiesow/Watkins) Page 5 of 6 Pages Some additional time would allow time for staff to look over the paperwork to assist you in making a decision. It needs to be made clear that Commissioner DeWolf did do a site visit and submitted his observations in writing. If anyone wishes to take issue with his observations, that is available for review. LUKE: We could allow people who have not put anything into the record to do so. WHITE: True, but then Mr. Kiesow would need to have some time for rebuttal. LUKE: I would like to see the record kept open to written testimony from neighbors and others in the area until Friday at 5:00 p.m., with rebuttal left open until Tuesday, 5:00 p.m. (Friday, February 11 `h, and Tuesday, February 15`h) S WEARINGEN: We will meet two weeks from today, on Wednesday, February 9th, to render our decision. The meeting adjourned at 12:25 p. m. DATED this 91h Day of Jaq 2000 by the Deschutes County Board of Commissioners. ATTEST: /T.,na L. Swoongen, Chair Minutes of Continuation of Hearing to Consider an Appeal of the County Hearings Officer's Decision on CU -99-119, MP -99-18 (Kiesow/Watkins) �A4^. is . Luke, Vice Chair Tom DeWolf, Comm' sioner February 9, 2000 Page 6 of 6 Pages lit ' t.•s s•�j .1. w ' •+ .;,f'bSy' r,• r " fYFPtF0w t 114,'' I pr +fie . .t '' 1 ,!•rw ,a1�.'� Y . e/' I row-•-./ f. a� •'. 1 F -r •f i'..w SLS. - .... c ... .. ,r r . ~ S I • MI -1 r ���� �,, ��J, SECTION 12 T.16S. R.1IE.W.M. DESCHUTES COUNTY SECTION 7 T16S: R.12E.W.M. \/ •foo' DESCHUTES COUNTY 1••100• ... - i11 Mt/ If\j n � 200 'Q0 .. 1 _ 400 Soo 104 2W � 1 • N M i .o0 700 foo goo 2a0 i ,.» 200 If00'•1 / I 1000 1400 1100 1 — 1 1100 1200 — 1700 1 T I ue► foalTo! I Is do* 216 u 1 J 0 • too 1 100 • • so. 1 400 fol 2.7 z o- Soo sm {oo roll ... rr ' 1000 N�iv 1000 I . 1200 I • t Ixa @nt 4104 N01 1700 i .14 . Iwo + :700 ' - N01 f « 1 1400 1901 NAI! . 'J�...� .,.,. .... If -�- � �: * �� :M 1111 N N • •.l ...yam - IM •LYHI[_�—•.- 1' 10 SECTION'll T16S..R.IIE.W.M. DESCHUTES COUNTY 1*1400' U. M" all 0 00 z SECTION 12 TIGS. R.IIE.WM. DESCHUTES COUNTY l'-400' >Hearings Officer an&Staff both approve the non-farm partition, which contains the standards for neighbor conflict, roads, utilities, setbacks, etc. >Staff approves the conditional use for non-farm dwelling, finding no stability or general unsuitability issues. Other Staff concerns have since been mitigated. According to Staff all criteria can be meet. >Hearings Officer takes ultra -conservative approach due to lack of information, misinterpretation of facts and photos, apples to oranges comparisons, and failure to visit the area to see if theoretical suppositions can be actualized. When in doubt, deny. >Information was/is available to Hearings Officer. By not fully looking at the information, or incorrectly interpreting the facts, suppositions were made which negatively effected the owners application, and denied the owner's rights to use his property to the fullest extent allowed under the law. >Fact: 39.1 acre farm with 29.5 acres irrigation = 9.6 dry acres. Take away 3 acre non-fatmable land, leaves remainder 6.6 acres dry. Take away 1.5 acre existing farmstead (dwellings, barn, sheds, ponds, etc) still have a remainder of over 5 acres for drylot, loafing, etc., many times over what is necessary for running livestock on -29.5 irrigated acres. >Fact: Only 3 parcels in "same category of developability" (23 acres under irrigation and real potential non-farm: parcel), none of which are the "same size or smaller", therefore none.. could be considered "similarly situated" by Hearings -Officer's articulated criteria written in her decision. >Fact: Application cannot destabilize existing vacant tion -farm parcels, -as this is a "farm partition" with conditional use for dwelling (not "same category of developability"). Trend already exists to allow building on non- farm parcels by percentage of 82% to 18% since 1993. No precedent set. >Fact: 18 tak lots (18.5% of study area) meet minimum standards for commercial farms in TRB subzone. 29 tax lots (30% of EFU lots in study area) are, "...characterized as rural residences or hobby fanns.", as stated by the Hearings Officer. Therefore, even by "conservative" approach, the hobby farm uses out run the commercial farm uses by nearly two to one. Thus the character is predominately hobby farm and rural residential. >Both neighbors who own the large irrigated farm parcels adjoining the 3 acre non-farm parcel have written letters stating they foresee no conflicts to their farm practices, and have no objection to the non-farm dwelling. >Neighbor to the South of the farm parcel has no objection. Will allow free use of his 59 irrigated acres just to maintain water rights. If he cannot even fund someone to lease his irrigated land, how could it be reasonable to assume the two farm neighbors adjoining the non-farm parcel would want to obtain the rocky 3 acre parcel for farm use? Adjoining property to West has 21 acres dry land, adjoining parcel to North has 8.47 acres dry land, subject farm parcel to South and East has a remainder of 6.6 acres dry land after partition. >My application was made counting on the "good faith" of the County to SUPPORT my rights to partition and build if I could meet the criteria_ County Staff clearly believes I can meet those criteria. I KNOW this application meets ALL the criteria, WITHOUT stretching the ordinance's intent, torturing the statistics, forgetting the facts, outweighing the experts, or negating the adjoining neighbors. I have spent thousands of dollars and at least a hundred hours based on the Counties support of my property rights. >This application must stand or fall on the current criteria in the ordinance as it exists and is currently and in the past being applied. My rights as a property owner should not be held to a higher standard, or need to meet any additional requirements, other than the ordinance as it now exists. '- - mil �J/i fi�s.�i November 19, 1999 TO: DESCHUTES COUNTY HEARINGS OFFICER FROM: John and Denyse Field RE: APPLICATION FOR NON-FARM DWELLING This Is to inrorm you that we do not objaot to granting a conditional use permit for a non-farm dwelling in the NW corner of Christine Watkins' property near the eastern boundary of our farm. Our land is used for hay and cattle production and the addition of a dwelling on the proposed sift should not adversely of oct our farrning operation. The rocky area proposed for the home As wAonds into our property and is of no farm value. Sincerely, �. ! moi► . John Field pe i• 8W01 Gerking Market Road Bend, OR 97701 I 1. 1� Vl,&/A / 4 �j I 11-1-1-91 FROM: JUDITH TRACY RE WATXDG PARTITION NON-FARM DWIRLBW APPI.ICATIaN Ibis is to inform you tint Ido. ootobject te&eooadifioW an fora ski -£aur dwdhng on do Walter Property a4obft Dots► lad off(iulftMukd Road My Laid is aired for Loy pcoda d n and p oov. k is abo sml - i be I $om the pMposed u=4wm pectidm by a doftm od 30 fioot wide coed. I do not bdime my 6® arses world ianpsctSe dwdW& nor wodddo dwdliop bot uy impact aa1lce farm rases. - Sisoady.