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2002-4-Minutes for Meeting December 12,2001 Recorded 1/4/20021130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 - Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke Mike Daly MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, DECEMBER 12, 2001 Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; Paul Blikstad, Community Development; and three citizens. The hearing was held on an Appeal of the County Hearings Officer's Decision on File No. DR -01-5, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. (Applicants: Jeffrey and Patty Dowell.) Chair Tom De Wolf opened the meeting at 3: 00 p.m. Laurie Craghead explained that the appellants formally withdrew their appeal, according to a letter received today. She said the opponent's attorney also received the same letter via fax. (Copy attached as Exhibit A.) Commissioner Luke stated that a previous letter from the opponent's attorney said that he, Commissioner Luke, did certain things that would preclude him from making a decision on this issue. (A copy of the letter is attached as Exhibit B.) He emphasized that he did not believe that this actually happened, and it upset him to have received that letter. He indicated that he would like to enter his own letter into the record explaining his position. (Note: This letter was never submitted, as the record had already been closed, and written testimony could no longer be accepted.) Chair Tom De Wolf closed the meeting at 3: 05 p.m. Minutes of Public Hearing Page 1 of 2 Pages File No. DR -01-5, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Wednesday, December 12, 2001 Quality Services Performed with Pride DATED this 12th Day of December 2001 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Tom DeWolf, Chair /1", Z' 111z Dennis R. Luke, Commissioner Minutes of Public Hearing Page 2 of 2 Pages File No. DR -01-5, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Wednesday, December 12, 2001 Neil R. Bryant Robert S. Lovlien Lynn R Jarvis John A. Berge Sharon R. Smith John D.Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Lane D. Lyons, LL.M. Jennifer A. Allen BEND 40 N.W. Greenwood Mail: P.O. Box 1151 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 MADRAS 24 S.W. Fifth Street Mail: P.O. Box 650 Madras, Oregon 97741 Phone: (541) 475-2757 Fax: (541) 475-2962 RECEIVE® DEC 12 2001 DESCHUTES CO. LEGAL COUNSEL December 12, 2001 (541) 385-1764 DESCHUTES CO COMMUNITY DEVELOPMEN EPT. ATTN: PAUL IKSTAD 117 NW L AYETTE AVE. BEND. R 97701 Applicants: Jeff and Patty Dowell File No.: DR -01-5 Dear Paul: The purpose of this letter is to formally withdraw the above -referenced appeal. Please send the Applicants whatever refund they might be entitled in this matter. Please call me if you have any questions. Very truly yours, ROBERT S. LOVLIEN www.bryandovlienjarvis.com RSL/alk Encl. cc: Mr. and Mrs. Jeffrey Dowell Liz Fancher Laurie Craghead v (RSL:DOWELL.030) M:\DATA\RSL\CLIENTS\D\Dowell.030.Ltr to Planning December 5, 2001 LAURIE CRAGHEAD LIZ FANCYCIR, ATTORNEY DESCHUTES COUNTY v ZQQ1 OFFICE OF LEGAL COUNSEL ADMINISTRATION BUILDING2ffg�i� 1130 NW HARRIMAN AVENUE BEND, OREGON 97701 Re: DR -01-5 (A-01-19), Jeffrey and Pat Dowell, Appeal of Declaratory Ruling I am writing to seek your assistance in preparing for next week's, December 12, 2001 hearing on the Dowell appeal. At the beginning of the hearing the Board of Commissioners will disclose any ex parte contacts, bias, prejudgment or personal interest. I believe it is likely that one or more of the Commissioners may make disclosures regarding these issues. I am writing to let you know of potential issues that may merit disclosure or disqualification so that you and the Board will have time to consider the issues prior to., the hearing.,., All Board members may be affected by the fact that the, County" has, potential legal liability for granting building permits for the Dowell property, if Ms. Green's decision is affirmed. The County has issued permits for development on the Dowell property that do not comply with the F2 zone's 100' yard setback. Additionally, the County has either permitted or condoned the construction of the Dowell's house behind the 400' building line shown on the final plat of the partition that created the Dowell's lot. The actions could be the basis of a legal claim against the County. This fact may impact the ability of the Board to act as an impartial decision maker in this case. This is one of the reasons my clients asked that the Board not hear the appeal in the October 15, 2001 letter the Board.refused, to consider when it granted discretionary review. Commissioner Luke has taken a position regarding setback requirements for this property. He has told the Kuhns that the side yard is a building area because it is in front of the 400' building line required for the property by the partition and PUD approval. Commissioner Luke measured this area across the side, rather than front yard of the Dowell property to create a building line that does not match the building line established on the final plat of the partition. Chair DeWolf, at the October 29, 2001 Commission meeting, asked "[c]an't we just set a setback of 25 feet and save everybody a bunch of time and money?" This comment indicates that Chair DeWolf may have already decided to reverse Ms.:, Green.'s decision. -2— December 5, 2001 Request for Information To assist me in determining whether I should be concerned about the above issues, I would ask that you provide me with copies of any of the following materials prior to December 12, 2001: 1. Copies of any tort claims notices, complaints or correspondence filed with Deschutes County by the Dowells, their agents or attorneys or others arising out of Deschutes County's permit decisions regarding the Dowells' property that is the subject property in the above -referenced appeal. 2. Copies of any letters, memoranda, notes or other written documents, other than documents prepared by William or Leigh Kuhn, that contain any claim or claims that allege or infer that the County or County employees or officials were in error in issuing permits for development on the Dowell's property. 3. Copies of any documents prepared by or for consideration by any County Board, Legal Department, or Planning Division employee or official that are of record at Deschutes County that refer to William or Leigh Kuhn or to Jeffrey or Pat Dowell, excluding permit records that are available for public inspection through the Building or Planning Division of the Community Development Department. Record of Appeal It remains my position, as stated in my letter of October 15, 2001, that the Board should have declined to hear the Dowells' appeal. I am enclosing a copy of the October 15, 2001 letter and ask that it be included in the record of the appeal at this time. I believe that the County Board should have considered the letter at its October 29, 2001 work session despite the provisions of DCC 22.32.035(D). I believe that code provision is unenforceable as it grants the appellant, but not other parties, a voice in the determination of whether to hear an appeal. This denies my clients due process of law, a right protected by the 14th Amendment of the US Constitution. County code provisions that are unconstitutional are not enforceable and should not have been applied. The decision whether to hear the appeal and the scope of review are matters that directly affect my client's legal position in this matter. Please include this letter and my October 15, 2001 letter in the record of DR -01-5/A-01-19. Enc. Cc: client file Sincerely, Liz F 644 NW BROADWAY STREET BEND, OREGON • 97701 PHONE: 541-385-3067 FAX: 541-385-3076 C, r - LIZ FANCRE2, Arro2NE)/ October 15, 2001 BOARD OF COMMISSIONERS O �� DESCHUTES COUNTY 1130 NW HARRIMAN BEND, OREGON 97701 Re: Appeal of DR -01-5, Declaratory Ruling (Jeffrey and Pat Dowell) 65595 Sisemore Road, Bend, Oregon, Tax Lot 100, Assessor's Map 16-11-19 A Notice of Appeal of the declaratory ruling issued by hearings officer Karen Green has been filed with the Board by the Dowells. My clients, William and Leigh Kuhn, own property that adjoins the Dowell property and are joint owners with the Dowells of the surrounding open space property. The Kuhns will be directly impacted by any decision made by the Board as development affects the Kuhns' residence, the Kuhns' residential development lot and the jointly owned open space property. My clients participated in the hearing of the declaratory ruling and filed written comments in the record. They, therefore, are parties. The Board will soon be asked to decide whether to hear this matter on appeal. My clients believe that the Board should decline to review this matter for a number of reasons: The Notice of Appeal does not meet the requirements of DCC 22.32.015 and 22.32.020. This means that the Board does not have jurisdiction to hear the appeal. A copy of a Motion to Determine Jurisdictional Defect is included with this letter. 2. The issue raised in this case is a strictly legal matter. The Land Use Board of Appeals has the ability to fairly and correctly resolve the legal issue. There are other legal means, such as an application for a variance, by which the Dowells may seek to resolve this issue. 4. The Kuhns, despite not prevailing on all parts of their argument, are willing to accept the decision made by the hearings officer. 5. The law in effect in 1980 unambiguously required the owner of the Dowell property to seek specific approval from the County to use reduced setbacks. The LM zone required the Planning Director to recommend approval of reduced setbacks. The required justification and recommendation were not provided. 6. The question asked by the Dowells in the declaratory ruling application is too narrow to allow the Board to establish setbacks for the Dowell property, the relief the Dowells seek on appeal. 7. A Board review of the appeal will not involve any matter of significant public policy. -2— October 15, 2001 8. Resolution of this matter will take this matter beyond the 150 -day time period for decision imposed by ORS 197.827. The hearings officer's decision was issued almost 80 days after the hearing. Mr. Lovlien agreed to "waive" the 150 -day rule "to accommodate the delay which is necessitated by my absence." This waiver, however, applies only to the delay caused by Mr. Lovlien's absence from the country. The County's failure to issue a final decision within the 150 -day period will prejudice my clients. It will make all parties, including the County, potentially liable for payment of attorney fees. 9. Board members have been extensively involved in issues related to the Dowell property and setback issues. These contacts will likely make it difficult for the Board to be a fair and impartial decision maker as the issues have been heated and Board members have taken firm legal positions regarding Dowell property setback issues. Thank you for your consideration of my clients' concerns. Please provide me with adequate, advance notice of any meeting at which this matter will be discussed. Sincerely, Liz Fancher Cc: P. Blikstad L. Craghead M. Reinecke clients file 644 NW BROADWAY STREET BEND, OREGON • 97701 PHONE: 541-385-3067 FAX: 541-385-3076 FILE NUMBER: APPELLANTS: ATTORNEYS FOR APPELLANTS: REQUEST: PLANNING STAFF: C, r BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY, OREGON DR -01-5/A-01-19 Jeffrey and Pat Dowell Robert S. Lovlien Mark Reinecke Declaratory Ruling Paul Blikstad REQUEST TO DETERMINE JURISDICTIONAL DEFECTS AND TO DISMISS APPEAL William and Leigh Kuhn, by and through their attorney, Liz Fancher, hereby request that the Board of County Commissioners determine that the Notice of Appeal filed by Mark Reinecke for Robert S. Lovlien contains jurisdictional defects that prevent the Board from reviewing and deciding the appeal filed with the County on October 1, 2001. This request is filed pursuant to the authority of DCC 22.32.022 and 22.32.010. DCC 22.32.022 provides that "ate failure to conform to the requirements of DCC 22.32.015 or 22.32.020 shall constitute a jurisdictional defect." DCC 22.32.010 limits the right to appeal to persons listed in DCC 22.32.010. The following defects exist: 1. The Notice of Appeal is not filed by a party, as required by DCC 22.32.010. The appeal was, as shown by the signature line of the Appeal Application Form, filed by Mark G. Reinecke for Robert S. Lovlien. Neither Mark G. Reinecke nor Robert S. Lovlien are parties nor are they any of the other persons who are entitled to file an appeal per DCC 22.32.010. The matter, therefore, is not justiciable. Mr. Reinecke and Mr. Lovlien have no concrete personal interest in the outcome of this matter. Utsey v. Coos County, 2000- 06, CA A111594 (September 26, 2001)(recent Oregon Court of Appeals decision). 2. DCC 22.32.015(A) requires the appellant to file the Notice of Appeal. In the event the Board finds that the Dowells are the appellants, the Dowells failed to file an appeal. Robert S. Lovlien, through Mark G. Reinecke, rather than the Dowells, filed the appeal. This fact is stated on the "Appellant's Signature" part of the Appeal Application Form. DCC 22.32.015(A) requires the appellant to file a completed Notice of Appeal on a form prescribed by the Planning Division. In the event the Board finds the Notice of Appeal was filed by the Dowells, it was not a completed form. It lacks the signature of the appellants, information required to complete the form. 4. The Appeal Application Form fails to provide the property description of the Dowell property. Instead, it provides a description of three parcels of land own ed by James L. Watts. The Appeal Application Form, therefore, is not complete as required by DCC 22.32.015(A). 5. The Notice of Appeal fails to raise any issue "relied upon for appeal' with sufficient specificity to afford the Board an adequate opportunity to respond to and resolve each issue in dispute. The appeal provides no reason why what the hearings officer did was legally or procedurally incorrect. No issue is raised with specificity, as required by DCC 22.32.020(A). No law is cited. No legal errors are identified. No factual errors are identified. Prior County land use decisions have consistently required this level of specificity. 6. The Notice of Appeal requests de novo review but does not state a reason why the Board should provide de novo review, rather than review on the record. DCC 22.32.020(C) requires this information. The notice says "it is appropriate for the Commission to interpret its ordinances." This is a reason to accept review, not a reason to hear the matter de novo (rather than on the record). Respectfully submitted this day of October 2001. /-1vf �-,, � Liz Fancher, OSB #81220 Attorney for William and Leigh Kuhn 644 NW Broadway Street Bend, Oregon 97701 541-385-3067 (telephone) 541-385-3076 (fax) liz@,Iizfancher.com Deschutes Board of Commissioners 1 I30 NW Harriman Street Dec 27, 2001 Bend, Oregon 97701 Mayor Bend City Council Bend City Hall Bend, Oregon 97701 Re: Swalley Canal Piping project Ladies and Gentlemen: I am a property owner along the above canal with about 400 feet of canal frontage. I am opposed to the piping of the canal for reasons previously stated to both governing agencies by other persons with an interest in and along this canal and I join in their objections with this letter. I raise the question in this letter as to whether or not the easement for the canal and ditch, as originally recited in the grant by the federal government in the late 1800's will effectively be terminated by burying pipe in the easement and then covering the canal and ditch so that neither canal nor ditch continue to exist, which would in effect level the land where once the canal existed.. In all events, piping would go outside the grant of easement for either a canal or ditch. Even assuming a court would otherwise find for the district that it could destroy its canal/ditch after being in existence for a 100 years or more, then the matter of damages to the abutting land would then have to be considered. I bought my parcel of land which has about 400' frontage and built a home in 1993-94 which takes full advantage of a view over looking the canal with windows and porches. The loss of value would be tremendous. I am prepared to litigate this matter if necessary. This letter is to set forth my thoughts. I would appreciate a reply with a copy to Gary DeJarnatt, 63885 North Highway 97, Bend, Oregon 97701. ..-�--mow._...._.._ ... . '/James D. Fournier 64910 Glacier View Drive Bend 977c l 541-389-1265 U NVf