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2000-84-Minutes for Meeting February 02,2000 Recorded 2/22/2000VOL: CJ2000 PAGE: 84 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-84 * Vol-Pagc Printed: 03/03/2000 08:16:32 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: 14 -1 1 F -1-1 affol=- MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK KE U HED MA - 2 2000 wES _,_ C1Id��D.�/f W�J< 00 prb Board of Commissioners Cot, ,9 ry C 68 L L w �K MINUTES OF HEARING 1130 N.W. Harriman, Bend, Oregon 97701 (541) 388-6570 • Fax (541) 388-4752 E -Mail: www.deschutes.org. Linda L. Swearingen Tom N. DeWolf Dennis R. Luke DESCHUTES COUNTY BOARD OF COMMISSIONERS MEETING WEDNESDAY, FEBRUARY 2, 2000 Chair Linda Swearingen opened the hearing at 11:00 a.m. Commissioners present were Linda L. Swearingen, Dennis R. Luke and Tom'DeWolf. Also in attendance were Bruce White, Legal Counsel; Paul Blikstad, Community Development; and Michael Maier, County Administrator. Also present were Barney Lerten, Bulletin Newspaper; Bob Shotwell, KICE Radio, Ray Lakey, Candidate for Deschutes County Board of Commissioners position to be vacated at the End of 2000; Dan Kiesow, the applicant involved in the Hearing; and several interested citizens. (This is a portion of the Minutes of the Board of Commissioners Regular Meeting of Wednesday, February 2, 2000, concerning only the Hearing detailed below.) RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 7. PUBLIC HEARING to Consider an Appeal of the Countv Hearings Officer's Decision on CU -99-119, MP -99-18 (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) SWEARINGEN: The Hearing today will consist of one hour; if additional time is needed to complete the Hearing, a future date will be set for a continuation. MINUTES of Board of Commissioners' Hearing Page 1 of 14 Wednesday, February 2, 2000 Quality Services Performed with Pride Paul Blikstad, Community Development Planner, then gave an overview of the history of the application and of the appeal. BLIKSTAD: Daniel Kiesow, who previously acted as agent for Christine Watkins, has purchased the property from her, so she is no longer a party to the Hearing. The application was denied on two main issues. The first is whether the proposed non-farm dwelling would significantly alter the stability of the overall land use pattern of the area. The Hearings Officer addressed these criteria in great detail in her decision. Her conclusion was that the proposal as submitted would destabilize the existing land use pattern, and would create precedence for the approval of as many as thirty-eight additional non-farm dwellings. The second reason for denial was based on the criteria relating to the use of the property in farming -and the production of livestock. It was determined even though the soils are rocky, this acreage has been used for loafing. LUKE: Is the land is flood irrigated? BLIKSTAD: I believe it is. LUKE: The point is that grazing animals need an opportunity and a place to get out of the irrigated portion of the land. BLIKSTAD: The Hearings Officer stated outright in her decision that she anticipated her decision would be appealed, and made findings on the partition standards under Title 17 of the County Code and the remaining EFU standards, and found that the remaining criteria were all met. The property is 39 acres and has two existing dwellings located on it in the southeast quarter, both of which were constructed in 1955. The Assessor's records indicate the larger home is just over 1300 square feet, and the smaller home is 440 square feet. MINUTES of Board of Commissioners' Hearing Page 2 of 14 Wednesday, February 2, 2000 BLIKSTAD: Commissioners Swearingen and Luke have expressed concerned over the fact that the proposed dwelling would be the third dwelling on the parcel. If that is a concern, staff believes that the number of dwellings could only be tied to the criteria when dealing with the stability of the existing land use pattern, and the impact of this proposal on that pattern. The applicant has submitted an outline for the Hearing today. The applicant has questioned the staff as to why this went to a Hearing in the first place. The concerns of Planning were threefold. It was determined through investigation that the 30 -foot strip along the northern property line is actually a dedicated public right-of-way. This is a minor issue that could be easily resolved, either through the applicant changing his flag lot configuration, or dedicating an extra thirty feet, making it a full sixty -foot right-of-way. The second reason was that a neighbor of the applicant called, asking how to go about putting three dwellings on one lot, which was a red flag. The third reason was the proposed dwelling would be placed in an area surrounded by farming. Therefore, it was thought that a Hearing would be appropriate to address all these issues. DEWOLF: There were a couple of times when the Hearings Officer mentioned the staff report; were we provided with this? Also, would this include the comments of the other agencies as well? BLIKSTAD: If it has not been, the complete report will be provided to all three Commissioners. DAN KIESOW: I am Dan Kiesow, the Applicant. I have purchased the property at 65797 Gerking Market Road, the subject property, from Christine Watkins, whom I previously represented. DEWOLF: Is there a problem with this change of ownership? KIESOW: I did have the property under earnest money contract the entire time. MINUTES of Board of Commissioners' Hearing Page 3 of 14 Wednesday, February 2, 2000 BRUCE WHITE: Dan Kiesow had originally filed the appeal as the agent of Christine Watkins, and she signed the original application. By record, we have her consent. I don't see there being a problem with this. KIESOW: I have two tasks this morning: one, to convince the Commissioners that my applications meet all the applicable criteria for approval and that they fall short in no area; and two, to hold this hearing to those criteria. Today's hearing is not a public opinion poll. LUKE: By going de novo, anyone can bring up anything. We do not hold this to any type of agenda; it is open to anything anyone wants to say. KIESOW: I agree with what you are saying. I want to point out that there are two issues here before the Board on which the Hearing Officer denied the original application. I would like to keep this to those criteria. Staff originally approved the application, with only two minor questions regarding the road and neighbor conflict. Originally there was concern about the additional dwelling on the property, but it is not a part of the criteria and that's why staff and I didn't address it originally. The two issues I wish to address are the general unsuitability and stability issues. I'm not here to attack the Hearings Officer, but I do want to point out the incompleteness of her fact-finding. I believe the denial is based on a lack of information, and by not making a site visit. The suitability of the farm issue, in my estimation, could not be determined without a site visit and merely from photographs; nor could the similarly situated issue in regard to stability. If this property is going to create an instability issue, if the criteria calls for it to be similarly situated to other parcels, in my opinion the decision falls short by taking a too conservative approach. MINUTES of Board of Commissioners' Hearing Page 4 of 14 Wednesday, February 2, 2000 KIESOW: The Hearings Officer mentions in her findings that she has been questioned about being too conservative, but that she has to speculate because she doesn't have proper data in many cases to make these decisions. Therefore, she errs on the side of denial, just to be conservative. I am asking for a reasonable decision, which is defined as not exceeding the bounds of common sense. DEWOLF: In other words, if we don't agree with you, then we have no common sense? KIESOW: We'll have to debate that some other time. I don't wish for this to become personal, but land use issues are definitely personal issues. Theycan become neighbor versus neighbor, and property owner versus land use law: In terms of general unsuitability, the Hearings Officer used some photos in the file that show both the non-farm parcel and the in the background, the farm parcel. The Hearings Officer makes some erroneous references regarding sheep grazing on the less -rocky portions of the non-farm parcel. Those photos showing the sheep grazing actually are on the farm portion and not the non-farm parcel. When this was pointed out to the Hearings Officer, she disregarded my testimony. Secondly, the Hearings Officer in quoting the former owner, Christine Watkins, who testified at the public hearing, stated that on page 14 of her decision, "At the public hearing, the applicant, Watkins, testified that she has grazed horses, cattle and sheep on the subject property". However, the typed testimony of the hearing has Christine Watkins stating, "The three acres that I'm seeking to split off are extremely rocky. My horses refuse to go down there. Cattle would go down there if the neighbors' cattle were in the field, and they'd walk down to see what was going on; but they wouldn't hang out there. "My sheep go down there whenever the dogs are out in the yard because I have some wild bighorns that are afraid of the dogs, and they'll lead the whole flock down.. If the dogs were not in the yard, if they were in the house where I normally keep them, the sheep prefer to lie up by the road under the junipers in a kind of grassy and sandy area." MINUTES of Board of Commissioners' Hearing Page 5 of 14 Wednesday, February 2, 2000 KIESOW: This is not part of the three acres. There are nine and one-half dry acres of this thirty-nine acres. She also states that there is a very large dry lot up near the barn by the stock pond that is the preferred area for the livestock to hang out, as opposed to the rocky area. The ground is so rough on the three acres that I'm seeking to split off that it is not a comfortable place for the animals to be. The rest of the parcel is very smooth and sandy. If you have photos, they probably show some of that. The actual part to be split off is very rough, very difficult to walk over. So you can see that the Hearings Officer's comments about raising cattle and sheep on that portion is clearly inaccurate. (At this time, Mr. Kiesow submitted photos into the record, showing the three -acre parcel.) LUKE: In context, to ask staff, when you talk about subject property, to me it is the whole thirty-nine acres, and not just a little three -acre piece. KIESOW: I'd like to read Page 14, the last paragraph, which says "At the public hearing, the applicant testified she has grazed cattle, horses and sheep on the subject property. The photographs of the proposed non-farm parcel in the record show it is not fenced off from, and is at roughly the same elevation of the rest of the subject property. The photos show no impediment to livestock on the proposed non-farm parcel." LUKE: I would point out that she said "the rest of the subject property". So when you say "subject property", she's talking about the whole thirty-nine acres and not just a little piece of it. S WEARINGEN: I read that differently. I think that when you say subject property, it's the three -acre piece that is asking for a non-farm dwelling. KIESOW: The question is, then, "whether the subject property can be reasonably put to farm use in conjunction with other farms in the area". That's talking about the three -acre piece. That's why it is an important issue. MINUTES of Board of Commissioners' Hearing Page 6 of 14 Wednesday, February 2, 2000 KIESOW: I asked the Hearings Officer not only at the public hearing but also again in my rebuttal to testimony to make a site visit, that I didn't feel she could make a reasonable decision without making one. From the photographs you really can't tell. DEWOLF: Even if you make a site visit, is this taped off or marked so you can tell? KIESOW: Yes, there is a fence line and flagging on the parcel. If the facts or the findings that the decision is based on are lacking, incomplete or in error, then the decision itself would also be error. That's why I hired Jim Burr, a former OSU Agricultural Extension Agent, to analyze and give an opinion of the non-farm parcel. He viewed the property and determined that it is not suitable for farm use, and is in fact 85 to 95 percent rocks. So, then, who is correct? The Hearings Officer who looked at photos and made an incorrect assumption about the photos, who misquoted the applicant's testimony, and who ignored my attempts to enlighten her in that regard; or the man who is educated in and has worked his entire career in agriculture. I think it is very clear that the parcel is unsuitable or inappropriate. The ordinance says "generally unsuitable", meaning pertaining to most or all, and inappropriate. I don't think I have to prove that animals would avoid this parcel, but rather that it is an inappropriate place for the production of livestock or farm crops. That would be abundantly clear if a site visit is made. DEWOLF: The Hearings Officer points out on page 15 that if these drier, treed areas are used for resting, loafing or thermal cover, that there is nothing about these areas that make them unsuitable for livestock production in combination with the rest of the subject property. So as part of the larger parcel, it might be a place for animals to rest or whatever. MINUTES of Board of Commissioners' Hearing Page 7 of 14 Wednesday, February 2, 2000 KIESOW: I agree, but there are nine and one-half dry acres. The ordinance specifically allows for this piece to split off if we can meet these criteria. So DCC 1816.055(b) reads: Parcels less than the EFU minimum lot size may be permitted to create one new parcel per non-farm dwelling. So, subject to the criteria that we have a remaining twenty-three acres that are irrigated, we have some remaining non -high value, non -irrigated land, we have loafing land, we have homesite land, and we have a rocky area that is not appropriate for animals to walk on. DEWOLF: What is to prevent you from, at some future date, attempting to split some more off again? KIESOW: It's in the ordinance that it can't be done. You can do one split only. BLIKSTAD: (Explained the pertinent ordinance.) There can only be one new parcel for a non-farm dwelling. And there is not enough allotted water. KIESOW: Regarding the stability issue, it needs to be defined in the context of what must happen before this event can have an effect to deny this application. In other words, it must materially alter the stability of the overall land use pattern in the area. There are two key words: overall and materially. The study area is two thousand acres. Of that two thousand acres a portion of it is EFU, not all of it. About 25% of the tax lots are non-EFU. Of those tax lots that are EFU, 18 tax lots have 23 acres of water, and therefore meet that minimum commercial designation for the TRV sub -zone. There are 29 tax lots, or 30%, that the Hearings Officer states can be "fairly characterized as rural residences or hobby farms". So it's almost a two -to -one margin that we are hobby farm to commercial farm. KIESOW: The second issue that defines stability is the trend, since 1993, for land use. There have been two new farm dwellings approved, and eleven new non-farm dwellings approved. That is 18% to 82%, non-farm versus farm, more than five to one non-farm dwellings. MINUTES of Board of Commissioners' Hearing Page 8 of 14 Wednesday, February 2, 2000 KIESOW: According to staff, it is unlikely there will be any new farm dwellings allowed; therefore, any new dwellings in this whole two thousand acres will probably have to be non-farm dwellings. The Hearings Officer argues that although this application continues the existing trend, the difference between my application and the existing allowances, is that my application is based on creating a new parcel. There are two parts to this application. We've got the minor partition and the conditional use. The minor partition cannot be approved without the conditional use, and visa versa. If we consider that, I've met all of the criteria for the minor partition, we must assume that it exists. For purposes of cumulative effect, when she compares mine against 41 other potential non- farm dwellings in this area, mine is not similar situated. She articulates in her findings, quoting a case that was presented before LUBA, stating there are two tests of similarly situated described therein; and she uses those tests in my application. One is that it must be in the same category of developability; the other is all those 31 vacant, non-farm parcels. So we need to compare apples with apples. These aren't in the same category. Also, they have to be of the same or smaller size. When you narrow down the field, of the ten parcels she refers to, there are only three comparable properties that meet the same criteria within the two thousand -acre study area. This information was available to the Hearings Officer, but she just didn't avail herself of it. As far as setting a precedent for a similarly situated parcel where I could affect the stability of, there are only three potential parcels that could do that. The other issue to consider is the land use pattern in the area. The parcel I wish to split off meets every one of those criteria. The final test is whether it is detrimental to agriculture; it is not about keeping open space or putting one more house in the Gerking Valley; it's about agriculture, and that's the focus of the ordinance. Another house is probably not only detrimental, but could be beneficial. It would not use up valuable farmland, and will help make the area more affordable. It is my request then, due to the incomplete and erroneous findings, and therefore the too conservative of an approach that was taken by the Hearings Officer, her decision should be overturned and the applications be approved. MINUTES of Board of Commissioners' Hearing Page 9 of 14 Wednesday, February 2, 2000 IROJ114 In testimony in three sessions of the legislature regarding land use hearings, unsuitability and incompatibility also deal with the current farming practices of fertilizing and other farm activities. I very much supported the right to farm bills in two sessions. A house near an area that is haying at three a.m. and doing similar farm things, that also is compatibility to meet, and not just whether the piece if farmable. By putting a house in the middle of an area that is a farm community, you have to look at this, too. KIESOW: People who do pick this type of dwelling will be abundantly aware of the fact that farming will be done. There are land use laws that mitigate this. There can be conflict between neighbors, but this can happen between two farmers or farmers and non -farmers. DEWOLF: Paul, is that an accurate statement that there would be no more farm dwellings in this area? BLIKSTAD: That was staff s opinion based on most of the area, which is highly irrigated. This means that most of them are high value, which meets the $80,000 income test. Even if they are not, there's a $32,500 income test. I don't know of too many farmers meeting that test. We just don't see it anymore. S WEARINGEN: Paul, could you give us a Leo Edwards decision, so we can review it. I feel this is very similar. SWEARINGEN: (11:45 a.m.) I'll now open the public hearing. This is an opportunity for the public to respond, either for or against, this particular land use decision. RON DAVIS: I'm Ron Davis, Associate Broker with Professional Realty Group, representing the parties in the sale of the property. As you are making a decision on this issue, I would like to ask that you help put some coherence into our land use policy decisions. I would like for you, as elected representatives of the citizens of this county, to help keep people from being dragged through the process that they have to go through. MINUTES of Board of Commissioners' Hearing Page 10 of 14 Wednesday, February 2, 2000 RON DAVIS: In the Edwards case, there wasn't a single letter in opposition; you eventually looked at the issue and said it was okay. But those people were dragged through a rock pile of bureaucracy, taking a year and costing them thousands of dollars; we're seeing the same thing now. In my view, Dan Kiesow has met the criteria. The criteria needs to be such that the public will know whether they have a chance, or is this just a big, expensive gamble. As it is now, it appears that anything associated with a non-farm dwelling in EFU zoned property is going to go to a public hearing. I don't think that is in the best interest of the citizens of this county. It takes your time, it takes a lot of money on the part of the citizen, it allows a single emotional plea to sway the decision of a hearings officer, and it allows the tyranny of the majority to dictate what's going to happen on a landowner's. piece of property. It is difficult to see people go through this process. I would like, as you are making your decision, to see if this process can be clarified. DEWOLF: The part that I don't think you can expect me to do is the altering of a process that I have no authority or ability to alter. What we're talking about in terms of land use criteria are far beyond our authority to dictate. We can interpret them locally the best we can, but the process is set up for a good reason, to give people from both sides the opportunity to participate in as open a process as possible. It may be expensive and it may be a pain, but he can choose not to do this. We don't require people to go through this process; they choose that. The process, as flawed as it may be, is set up to be as fair as possible. DAVIS: My point is that when someone makes the application, they ought to have a good idea of whether or not it may be approved. We have criteria in Section 18 that states the criteria to be used. I have a degree in agriculture and have spent years on ranches, and I have worked for the Forest Service as a range conservationist; so I have a little bit of expertise when it comes to land. In the case of general unsuitability, this land is very rocky - worse that the Edwards property - also, it's elevated, and the Hearings Officer did not even make a site visit. That's where I think she really erred, because I think her decision would have been different if she had made a site visit. MINUTES of Board of Commissioners' Hearing Page 11 of 14 Wednesday, February 2, 2000 DEWOLF: Even on Leo Edwards, there were three thoughtful people who really struggled with that, and came up with a two -to -one vote, so it's not going to be clear-cut from the beginning. That's part of the process. DAVIS: The other question I have is if this is not generally unsuitable for the production of livestock and/or crops, what is? The only thing I can think of is the side of a cliff, where a cow can't walk on or lie down. Something needs to be done to make sure applicants don't have to go through this long, expensive process. Regarding the land use pattern area is a little more subjective. I think the general unsuitability is a little more objective, but the land use pattern in the county is something that you should be able to decide. I would like you to consider those things as you make your decision. LUKE: I would like to point out to you that in the six years I was in the legislature, the Realtors and homebuilders have all been in there supporting the saving of farm land. That is the reason for land use in this state, the preservation of farmland. I don't think it is a waste of time to have these things come forward. In the valley, they build on better ground than we've got. The purpose of land use laws is to protect farm ground. DAVIS: I agree with you. And I don't think this is protecting farm ground. I would just like to know so the people I represent will know whether this kind of thing is going to be allowed or whether it should be removed from the criteria. MARTIN WINCH: I'm Martin Winch, the person who objected to this proposal in the beginning, in front of the Hearings Officer. I would like to spend some more time than is left in this hour, and there is at least one other person who would like to speak. Instead of breaking that up, if we are going to continue the hearing, can we do it all at one time. MINUTES of Board of Commissioners' Hearing Page 12 of 14 Wednesday, February 2, 2000 S WEARINGEN: Not a problem. If there is anyone who would like to testify at this time, please step forward. LUKE: The next time we meet, are we going to allow people who haven't indicated at this hearing that they want to testify, or will we limit it to those who are here and ready to testify today? BRUCE WHITE: We can have those who want to testify sign up on a list today, and it should be limited to them at the continuance. RON ROBERTS: I'm Ron Roberts, a Realtor with Rhino Ranch and Realty, and I am representing .the prospective purchasers of the eighty acres to the west of the subject property. They have asked me to come forward and be in agreement with Dan's proposal. DEWOLF: Is it appropriate for us to make a site visit before the continuation of the hearing? And are there any 150 -day issues? 1.� It is okay to visit the site during this time and submit your findings. PAUL BLIKSTAD: The 150 -day period is up on March 28. SWEARINGEN: We are continuing this hearing until next Wednesday, February 9, at 11 a.m. The meeting is adjourned. Those signing up to testify at the continuation were: ■ John Field ■ Steve Putnam ■ Martin Winch THE MEETING ADJOURNED AT 12:00 NOON. MINUTES of Board of Commissioners' Hearing Page 13 of 14 Wednesday, February 2, 2000 IT IS TO BE CONTINUED ON WEDNESDAY, FEBRUARY 9, 2000, BEGINNING AT 11 A.M. DATED this 3rd day of January 2000 by the Deschutes County Board of Commissioners. it (fcl�6� & Attest MINUTES of Board of Commissioners' Hearing Wednesday, February 2, 2000 L Linda L: S�arinp-en, Chair Ddn—fiis R. LukE, Vice Chair Tom De If, ComniWioner Page 14 of 14