Loading...
2000-682-Minutes for Meeting May 02,2000 Recorded 5/25/2000VOL: CJ2000 PAGE: 682 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-682 * Vol -Page Printed: 06/06/2000 09:27:36 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: May. 25, 2000; 8:17 a.m. Regular Meeting (CJ) NUMBER OF PAGES: 8 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK MICRO-FISED MAW � 2000 KPUN HED ,1 - 6 2000 ----------------- ab .4fa 2� Board of Commissioners 0 r NI .COUtrTY CLE PAK(541) 388-6570 • Fax (541) 388-4752 1130 N.W. Harriman, Bend, Oregon 97701-1947 www.co.deschutes.or.us Linda L. Swearingen Tom DeWolf MINUTES OF HEARING Dennis R. Luke DESCHUTES COUNTY BOARD OF COMMISSIONERS 2:00 PM, Tuesday, May 2, 2000 1130 NW Harriman Street, Bend, OR Administration Building Chair Linda Swearingen opened the meeting at 2:00 p.m. Commissioners present were Linda. L. Swearingen, Dennis .R: Luke and Tom DeWolf. Also in attendance were Bruce White, Legal Counsel; Kevin. Harrison and Chris Schmoyer, Community Development; A. K. Majors, a land resource consultant, and Edward Fitch, Representing Applicant Fred Hall, who was unable to attend. An Appeal of the Deschutes County Hearings Officers' Findings and Decision on CU -99-137 (Fred Hall Property). It was explained that the time period for a decision on this matter should be extended, as the Applicant, Fred Hall, was hospitalized the evening before and part of the testimony at today's hearing was to come from him. Kevin Harrison gave a brief overview of the process thus far, and described the location of the property. He stated that the property is located approximately 600 feet west of the Redmond urban growth boundary, and is approximately 4.77 acres in size with 3.77 of water rights. BOARD OF COMMISSIONERS' PUBLIC HEARING Fred Hall, Applicant Tuesday, May 2, 2000 Quality Services Performed with Pride Page I of 8 He further said, "Across the street is the Mallott property, defined as a feed lot. A feed lot is defined in Title 18 as a livestock feeding yard, and the Hearings Officer made a determination based partly on Webster's definition as well. "The Natural Resource Conservation Service identifies the property's soil type as 31-A, Deschutes sandy loam, which is high-value soil where irrigated. The property is zoned EFU (exclusive farm use), and is in the Tumalo-Redmond band sub -zone. "The Hearings Officer denied the application based on the failure of the applicant to demonstrate compliance with sections describing potential conflicts between proposed non-farm dwellings and surrounding farm uses. The stability of the overall land use pattern in the area and the suitability of the proposed homesite for farm use, and buffers that would mitigate factors between the proposed homesite and the Mallott's feed lot." Commissioner Luke asked that since feed lot cattle would have to be provided supplemental. feed in .the winter months, would that change the definition of a feed lot. Chris Schmoyer.repled that the definition given in the Title is very broad. He explained that on the Mallott property there is a two -acre fenced area used for feeding. (Oversized maps were presented and discussion occurred regarding the location of the subject property, the feed lot and other nearby residences) Chris Schmoyer referenced page 13 of the Hearings Officer's decision, under findings. "The applicant argues the livestock industry considers a 'feed lot' to be a year-round operation involving feeding thousands of livestock with grain and concentrated feed primarily to slaughter. The record indicates the Mallott's operation involves the winter feeding of several hundred cows and calves preliminary to sale of the calves." Mr. Schmoyer continued, "However, the Hearings Officer understands that 'feed lot' may be a term of art within the livestock industry.... The record indicates the Mallotts' tract includes a yard consisting of an approximately two -acre fenced, unvegetated area in which several hundred cows and calves are fed hay from October through April. Therefore, I find the term 'feed lot' clearly includes the Mallotts' livestock feeder operation." BOARD OF COMMISSIONERS' PUBLIC HEARING Page 2 of 8 Fred Hall, Applicant Tuesday, May 2, 2000 Commissioner Luke stated that there used to be a feed lot across Highway 97, which sold feed to others. He further said, "The Mallotts utilize their feed for their own cattle, and using their feed for their own purposes. He asked if it matters if the feed is for their own cattle or for the cattle of others." Chris Schmoyer said the definition given is a very broad one. Commissioner Luke asked if the lot was a legal lot of record, and if it is could the owner build on it. Chris Schmoyer replied that it is a legal lot of record, which is a legally created parcel; HB 3661 brought about the term "legal lot of record dwelling", which is different, and the requirements are very specific. Ed Fitch explained that the County has never specifically identified the operation of a feed lot or cattle operation. He further said, "The only cattle that are on Mallott's property are his own. Operations with the cattle of others are a different type of animal, so to speak. A feed lot is a place where cattle are located with no pasture, they are being fed grain, and are there to be fattened up for market. There are about seven characteristics of what you normally would consider a feed lot . These are just two different things." Commissioner DeWolf stated that lacking a definition that isn't any clearer than "a livestock feeding yard" - technically one cow and bale of hay would be feeding. livestock - it makes this an impossible situation. He further stated that theoretically, the Board should not be dealing with what Mallott does. Commissioner Swearingen said that the County Commission must interpret that definition and provide direction. Chris Schmoyer said there is a licensing provision for feed lots under state law, and if that license isn't in evidence, then it is not truly a feed lot. He further stated that the Mallott property is not a feed lot as understood in social circles, the industry, or even under state law. He explained that the Commissioners must consider a definition that make sense in the context of economic reality and legal structure. Bruce White asked if there is any difference between a feed lot and a sales barn or yard. Chris Schmoyer replied that a sales yard is typically the auction place. He explained, "The yard is an open area that is next to the sales barn where the cattle are brought every week to sell them. The sales yard and barn combination is usually a permanent establishment that is used all year round. They are two separate items." BOARD OF COMMISSIONERS' PUBLIC HEARING Page 3 of 8 Fred Hall, Applicant Tuesday, May 2, 2000 Chris Schmoyer said the second issue to address is the Hearings Officer's decision as to the suitability of the parcel. He went on to say, "A. K. Majors submitted a report to the Hearings Officer. The evidence in the record clearly shows that there is a defined portion of a little more than one acre of the property that is 70 to 80 percent rock or other untillable, unproductive land. This is the land that would be a homesite, and would even allow sufficient land for a loafing area for the two or three head of livestock that the property could support. The evidence is clear that this portion of the property is very rocky and could not support farm use." (A brief discussion of the location of this part of the property ensued.) A. K. Majors said he wanted to comment on some misinterpretations noted in the Hearings Officer's report. He quoted page 10 at the top of the page, "The applicant's land resource consultant, A. K. Majors, testified at the public hearing that all of the tax lots in the study area .... would have higher rocky areas like the proposed homesite." He said, "That is completely in error. I did not testify that all of them have the same, but that perhaps some of them have the same situation as on this parcel. I have been retained to look at two other tracts of land in the same general area, closer to Sisters, a twenty -acre parcel and a ten -acre parcel." Mr. Majors further said, "My interpretation on these was that they did'not have an area that was unsuitable, so I have already established myself in that out of five parcels that I looked at, two of the definitely did not have an area that was unsuitable. The Hearings Officer seems to use the words 'different from the balance of the property' repeatedly, and concludes on page 13 that 'as discussed in the findings .... Edwards .... slightly higher and rockier than the rest .... because the homesite appeared different from the balance of the property.' Certainly is has to be different from the balance of the property in order to be unsuitable. However, just because a portion of the parcel is different, does not make it unsuitable." Commissioner DeWolf said, "Regarding Edwards, maybe we weren't totally clear with staff. It wasn't just the rocky area that was different from everything else that led to my decision. It was also the fact where it was located on piece of property, directly behind a house that was right on the road. There was another one that we denied, just as rocky if not rockier than Edwards, because of its location away from the road, surrounded on all four sides by either cattle operations or that sort of thing. So, to say that's the reason, is just because of the rockiness and the different elevation, that wasn't entered into my thinking on this." BOARD OF COMMISSIONERS' PUBLIC HEARING Page 4 of 8 Fred Hall, Applicant Tuesday, May 2, 2000 Ed Fitch state, "I feel the facts of this case are even closer to what the Commissioners were considering then. Because when you look at the homesite, which is directly off of an existing shared driveway with the Jensens, you don't drive through any of the suitable property to get to the unsuitable part." (Brief discussion ensued, using a map that detailed the driveway and other nearby residences) Ed Fitch said that from his standpoint of judging the site as to whether it is unsuitable for the production of livestock and crops, it has to have certain characteristics to make it unsuitable. He further stated, "In my opinion and view, and in my experience, if you have a site that has that shallow of soil and is that rocky, it is, in my opinion, unsuitable for the production of crops." Commissioner DeWolf stated that if one reads the definition of loafing area, the argument could be made that an area like this is suitable and necessary for the production of livestock. He further said, "That's why I keep going back to the Edwards case, and for me it's not that, but it is two things: location on the property itself, and compatibility with surrounding properties." Commissioner Swearingen stated that this is different than the Edwards case in that it is unsuitable for the production of livestock or crops. She stated, "The Dan Kiesow case was it was unsuitable, but there was enough other area so that this did in fact provide for loafing. But there is no other opportunity for the rest of the farming operation. So loafing by itself isn't going to help out a lot. So I don't feel this is suitable for farming or production because the other elements aren't there to make it work." Ed Fitch stated, "I'd like to clarify that again, too. In the Edwards case the Hearings Officer interpreted the loafing area is necessary or should be part of the production of livestock; it can be, but it is not necessary. What I stated in the Edwards case and I will state in this case as well is that an area can be used for loafing by livestock, and it can be suitable or unsuitable. If you take a steep rim area, or a heavily treed area, it could be used as a loafing area, but is not really suitable for the production of crops or livestock. Property may also be totally suitable for the production of crops or livestock, but may not have a loafing area." BOARD OF COMMISSIONERS' PUBLIC HEARING Page 5 of 8 Fred Hall, Applicant Tuesday, May 2, 2000 Commissioner DeWolf said that the Hearings Officer said that by allowing a dwelling, it would force a significant change or significantly increase the cost of the livestock feeder's operation. He asked, "Do you concur with that? How is it possible?" Chris Schmoyer replied, "Yes, it is possible." Commissioners Luke and Swearingen stated that there are several other houses in the immediate area, and wondered how this would make that big a difference. Commissioner DeWolf also said that the Hearings Officer noted the approval would significantly alter the stability of the land use pattern of the area. Commissioner Swearingen stated that this is 600 feet from the urban growth boundary, and common sense should apply. Commissioner DeWolf said we're asking them to interpret the laws. He explained, "There are two things at stake here. If our laws are too fuzzy, like the definition of a feed lot, that is a problem and should be cleaned up." Commissioner Swearingen responded, "We don't want to cleanit up or make it too specific, as it allows for us to make different interpretations. There may be some instances that where it is not a licensed feed lot where it is in fact a feed lot. This is not, in my estimation." Commissioner DeWolf said the proposed homesite is noted as being suitable for the production of crops and livestock. Chris Schmoyer said that he visited the site and there was green grass growing everywhere, including the proposed homesite. Commissioner Swearingen said there is grass growing everywhere now, but that in itself does not mean it is productive farmland. Chris Schmoyer stated that is was evident, however, that livestock have grazed there. He further explained, "The Mallotts are using the land at this time. There is no economic value to this property; in fact, right now it costs more than any potential farm use. It has the potential for two or three cattle without a homesite. The productive capability of this one acre does not affect the capacity of this property." Commissioner Luke said that these kinds of areas are important for cattle to walk through, clean off their hooves, and so on. He further stated that it has to be looked at as an integral part of the larger picture. BOARD OF COMMISSIONERS' PUBLIC HEARING Page 6 of 8 'Fred Hall, Applicant Tuesday, May 2, 2000 (A brief discussion of the parcel's location to other parcels with homesite ensued.) Commissioner DeWolf said that the pattern has already been established in the area. Chris Schmoyer said that input from neighboring property owners and the record reflect that there is a compatibility with local residents and the feed lot owner. Commissioner DeWolf said these neighbors agree now, but when the properties change hands in the future there may be compatibility issues. Commissioner Swearingen said that it probably won't matter in five years, as the area is developing so quickly and with housing going in very close to these properties. Ed Fitch stated, "The things to consider that this portion of the property are: (1) it is unproductive; (2) its proximity to adjoining properties; and (3) its proximity to access, having even a joint driveway. This property is consistent with the others. The other issue about compatibility is the Hearings Officer's almost twisting the facts to arrive at her conclusion." Mr. Fitch further explained, "In the Edwards case, where an analysis of the one - mile area was considered, you came up with 38 lots that had the potential for development. In this particular area, there are only about 18 to 20. In Edwards, there were four non-farm dwellings since 1993; and this area has only had one. The facts are stronger here that there is not going to be instability caused by this one particular non-farm dwelling. When you look at the analysis of the whole area, and the history of the areas, this lends itself to a finding that this one non- farm dwelling between three houses, within 600 feet of the urban growth boundary, is not going to destabilize this area." (A brief discussion of maps and photographs took place) Ed Fitch said that a parcel without a home on it can tend to deteriorate, and that this parcel, as well as others, are better managed when someone lives there and the property ends up being more productive. Commissioner Luke stated, for the record, that his father-in-law has had business transactions with the applicant in past years. Bruce White clarified that if Commissioner Luke was not benefiting from this relationship at this point, this is not a disqualifying factor. BOARD OF COMMISSIONERS' PUBLIC HEARING Page 7 of 8 Fred Hall, Applicant Tuesday, May 2, 2000 Chris Schmoyer asked if the Board wanted to close the record for oral testimony at this time; they indicated they did. It was decided that the record will be held open for one week (5 p.m. on Tuesday; May 15) for further written testimony and to give the Board members an opportunity to view the property. Bruce White said that these observations must be placed on the record so that they can be rebutted if someone desires. (Discussion occurred about setting a decision date) It was determined that due to the availability of the Commissioners and other parties, a decision would be made on Monday, May 22, at approximately 11:00 a.m. Bruce White indicated the record is to close at 5:00 p.m. on May 9, 2000, and the deadline for a decision is June 14. Being no further discussion, Chair Linda Swearingen adjourned the meeting at 3:15 p. m. Dated this 2nd Day of May 2000 for the Deschu es County Board of Commissioners. Linda L. SNNi* tfisen. Chair s R. Luke, Commissioner Tom DeWolf, Commi sioner ATTEST: Recording Secretary BOARD OF COMMISSIONERS' PUBLIC HEARING Page 8 of 8 Fred Hall, Applicant Tuesday, May 2, 2000