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2002-175-Minutes for Meeting March 11,2002 Recorded 3/20/2002DESCHUTES COUNTY OFFICIAL RECORDS j� } 2002NI75 MARY SUE PENHOLLOW, COUNTY CLERK yJ {► ETES C COMMISSIONERS' JOURNAL _ 03/20/1002 09;10;33 AM Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF PUBLIC HEARING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, MARCH 11, 2002 Administration Building 1130 NW Harriman St., Bend The subject of this hearing was File No. TA -01-10, regarding possible amendments to Title 18 of the Deschutes County Code, to address House Bill 3326. Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; Paul Blikstad, Kevin Harrison and George Read, Community Development; and eight citizens. Chair Tom De Wolf opened the meeting at 9:00 a.m. KEVIN HARRISON: This is a public hearing continued from February 26, 2002. The record has been left open. The Board had suggested that those people who wanted to submit written testimony do so by last week. The Board should have copies of letters from Kay Kimball, representing 1,000 Friends of Oregon; Mack and Martin Kimberling; Harold and Joanne McBride; Darcy Wright; John Brown; Ethel Mekolich; and Darrell Barnes. The Board should also have a memo from staff and a draft ordinance. In the memo from staff you had asked for us to detail what we had on the flip chart; so we have an outline of the land division standards plus the copies of the drawings. We also addressed several points that had come up during the hearing. I'll just review those for you. Minutes of Continued Public Hearing - HB 3326 Page 1 of 15 Pages Monday, March 11, 2002 Quality Services Performed with Pride HARRISON: First, the draft ordinance has been a work in progress, and has changed as we tried to change the format to make it easier to read, and more simple and direct. It is still consistent with the policy discussion and policy recommendations that have come so far from the Planning Commission. I would also like to correct the record. Some comments were made by staff previously that once a property has been irrigated, it is always considered irrigated, and that's not true. We've gone back to review state statute and found that comment is true only with respect to lot of record dwellings. It's a dwelling approval that we're not discussing here. We're talking about land divisions. Commissioner Daly raised a question about this at the last hearing, and Liz Fancher raised an issue about this. The question goes like this. What happens if a piece of property has a minimal amount of irrigation water and over time those rights are sold? What land division standards apply? It would be those land division standards for non -irrigated parcels. MIKE DALY: So what you told me before was wrong. HARRISON: That's right. Keep in mind that when you do a land division, you are really doing two things. You're dividing the property and, in almost all cases, you have to get approval for a house at the same time. If that property has been irrigated in the past and the water has been removed, you may meet the minimum lot sizes under the land division standards, but it doesn't necessarily mean that you can meet the dwelling approval standards for a non-farm dwelling. DENNIS LUKE: Because of the soil? HARRISON: Because the soils may still be generally suitable for farm use. DALY: What if you had 80 acres, with half of it rocky and half of it irrigated. HARRISION: Minutes of Continued Public Hearing - HB 3326 Page 2 of 15 Pages Monday, March 11, 2002 What you'll see in House Bill 3326 is that where you create a new parcel for a non- farm dwelling, that entire parcel has to be found to be generally unsuitable for farm use. Let's say that you are creating a five -acre piece or something like that. For example, let's say it's a ten -acre piece and historically eight acres were irrigated. The notion would be that there is soil that is capable of being farmed. That piece of property may not meet the conditional use standards for a non-farm dwelling. In almost every case, when we look at these land divisions, we've got land division standards that talk about minimum lot sizes and so forth, and we have approval standards for dwellings. The dwelling standards can be tougher than the land division standards. DALY: What standards do you use, though, if the parcel was irrigated and the soils wouldn't produce enough to make it a viable farm? HARRISON: Again, the major test, and often times the key test for the non-farm dwelling, is that you have to make a finding that the land is generally unsuitable for farm use. If that is the case, and you can make a showing that the land is generally unsuitable for farm use, even though people may have made an attempt to farm it; and because the inherent characteristics of the soils aren't suitable for farm use, they may still be able to qualify for the non-farm dwelling. DALY: Who makes that call? HARRISON: It's a County call. It's a County application of the code, which mirrors state law. DALY: You folks would make the call, and then it could be appealed to us. HARRISON: Yes. A normal scenario is that staff has one level of review; then the Hearings Officer; and ultimately the Board. DALY: Minutes of Continued Public Hearing - HB 3326 Page 3 of 15 Pages Monday, March 11, 2002 If staff were reviewing a parcel application in, for example, Lower Bridge, where there are a lot of farms, versus one in South County, where it wouldn't work for farm ground --- LUKE: Why not? There are good quality soils down there. HARRISON: Well, it depends. Lower Bridge has some of the best soils and some of the worst soils. You have to look at these things on a case-by-case basis. It is really hard to generalize. DALY: I agree. LUKE: I have a question. Is there a time frame, so a person doesn't transfer water off, do a land division, and then bring the water back? HARRISON: These water rights are commodities. If a person owns water rights and sells them, they would then have to repurchase them to put them back on the property. LUKE: They can also move them to another piece of property they own. HARRISON: That would be possible, too. LUKE: I'm asking if there is a time frame that it has to be non -irrigated. HARRISON: We'd be looking at what rights exist on the property now. TOM DEWOLF: On the date of application. HARRISON: Minutes of Continued Public Hearing - HB 3326 Page 4 of 15 Pages Monday, March 11, 2002 Yes. DEWOLF: And that could change after it's approved. HARRISON: It could, although I've never seen that happen. Usually when people make these decisions they are relatively permanent. If they do move them around on their own property, I've never seen this. We also put in some findings for the application of the emergency clause to adopt the ordinance, for your review. I'd like to make a couple of comments with respect to Kate Kimball's letter. She raised really two points of a legal nature regarding the County's draft ordinance. This is the most recent letter, dated February 25, 2002. On the front page, under the heading "irrigated vs. non -irrigated lands", she says, "House Bill 3326 provides that the parcels for the non-farm dwellings must be 'generally unsuitable for the production of farm crops and livestock', but this requirement is not in the ordinance." At the time that she wrote this, our draft ordinance hadn't carried this language from HB 3326 into the draft ordinance. It was an oversight, and we put that back in. The second paragraph says, "It's not permissible for Deschutes County to distinguish between irrigated and non -irrigated lands in the application of HB 3326". Staff respectfully disagrees. Our land division standards for irrigated land are guaranteed in ORS 215.780. We have minimum lot sizes that were acknowledged by LCDC through periodic review. We view those as guaranteed to us. The land division standards for non -irrigated land come right from HB 3326. We believe that is a faithful application of the law. We'd like to point out that we have generated these standards with consultation with DLCD staff, and they actually recommended the kind of approach we are taking. We believe that what you see in front of you now is legally defensible. Finally, there are really three policy decision points for the Board today. The first has to do with how many new non-farm parcels from an irrigated piece that is greater than the minimum lot size. House Bill 3326 allows up to two. The recommendation of the Planning Commission is one on the small parcels - less than 80 acres total - and two on the large parcels - greater than 80 acres. LUKE: Minutes of Continued Public Hearing - HB 3326 Page 5 of 15 Pages Monday, March 11, 2002 That was a recommendation of a Planning Commission that was split, and two of the members weren't there. HARRISON: That's right. The second decision point is in regard to minimum lot size for dry parcels that are less than 80 acres. The recommendation of the Planning Commission is five. Historically the ordinance has had twenty. There is nothing in state law that speaks to a minimum lot size; it is completely at the discretion of the County. The third decision point has to do with the County's prohibition against series partitions. We have had language on the books since 1992 that prohibited non- farm series partitions. State law adopted that same kind of language in 1988. The House Bill would roll that back to 2001. The recommendation of the Planning Commission is that you leave that 1992 cutoff date in place. DEWOLF: But this draft has 2001. HARRISON: That's right. DALY: What is the reasoning behind that? HARRISON: They felt that those people who have divided their land over time did so with knowledge of the prohibition. This is not a surprise. They also saw it as a way to - - again, that 1992 cutoff date was a policy decision made as part of the overall farm package. So, my sense from the Planning Commission is that they didn't see any compelling reason to change that. LUKE: I respectfully disagree. Things are changing all the time. You guys did your changes before the Legislature did their changes. And you guys had what I thought was a great farm plan, where a person had to come in with a farm plan and tell how they were going to farm before they got permission to build a house. LCDC threw that out. LUKE: Minutes of Continued Public Hearing - HB 3326 Page 6 of 15 Pages Monday, March 11, 2002 Rules are continually changing for people. In 1993 the Legislature passed this bill and cut some people off, too. This could be argued either way. People have had the ability to do some things with their land that were taken away by not only local government, but state government over the past fifteen or twenty years. DEWOLF: What is the difference in the impact between 1992, 1997 and 2001? Do we know that? HARRISON: We can count the number of land divisions of this type that occurred in that time period. We can't tell the size of those parcels, though, and if some of these would be eligible for land division. But if you just count the number of partitions that have occurred in that time period, I think that will give you a pretty good sense of what may be possible. Between 1992 and 1997, we're looking at 23 non-farm applications. Between 1997 and 2001, another 8. The universe of people who could be affected by this between 1992 and 2001 is about 31. DEWOLF: Are there people other than this who didn't apply who could be eligible to do so? HARRISON: I don't think so. LUKE: They may not meet some of the other minimum requirements. Your universe could be a little smaller. HARRISON: I would say that it would be smaller, because some of these land divisions are already down to below forty acres. DEWOLF: So the maximum impact would be an additional 31 lots. HARRISON: I would think so. It's a small group. LUKE: Minutes of Continued Public Hearing - HB 3326 Page 7 of 15 Pages Monday, March 11, 2002 It's insignificant unless you are part of that group. DEWOLF: I'll now open the public hearing. MARTY KIMBERLING: I live on Dodds Road. Getting back to this 2001 date, I don't agree with the Planning Commission as far as not accepting that. I kind of fall into that category about being able to partition. I've been working on this for five years. Some of my understanding is that in different codes within Deschutes County, I do have a right to do this. It's like Mr. Luke was just saying. The ordinance that happened back in 1992 doesn't really reflect what is going on in today's society. You say that 31 people are insignificant, but if you take a look at the revenue that this would create --- LUKE: I didn't mean that personally. It's insignificant when you're looking at all the property owners. It's not a large number, but it is important to those who are in that group. KIMBERLING: If we're only talking about 31 parcels by changing this date, that wouldn't be a significant impact. This is unproductive ground. This way, if the dates change, people can do something productive with the ground and bring more taxes and revenue to the County. Otherwise it's just land that will just sit there and do nothing. I request that you do vote in the 2001 date. Being no further testimony offered, Chair De Wolf closed the public hearing. DEWOLF: This is complicated, with four separate questions here. The Planning Commission has gone round and round with this with a lot of testimony; we have as well. For one thing, whatever we do here today can also be altered by future Commissions. DEWOLF: Minutes of Continued Public Hearing - HB 3326 Page 8 of 15 Pages Monday, March 11, 2002 The question that concerns me is the delivery of services, that allowing the potential for hundreds of new lots out in rural areas is the impact on road infrastructure, rural fire districts, and so on. We're really putting a lot more pressure on service delivery. That's my biggest concern, is building more outside of urban areas where these services are more economical and efficient to deliver. LUKE: You closed the public hearing, so we're done taking testimony. Can we still have discussions with staff? LAURIE CRAGHEAD: I would recommend reopening the public hearing, in case anyone has any questions. DEWOLF: I withdraw my closing of the hearing. LUKE: I need to read through this material. I'm not ready to make a decision today. DEWOLF: Can I get a response to my concern? LUKE: I'd rather have a well thought-out reason to respond. HARRISON: The concern you expressed is really the same that were part of the policy decision in 1992. I think that the concern about service delivery in rural areas was what led to the prohibition against series partitions, which lead to a twenty -acre minimum lot size for non-farm dwellings. Also, this was the reason why we allow one non- farm piece to be broken off from a farm rather than more than one. That's the balancing act. This was the motivating concern back in 1992, and I think that it is kind of at the heart of the Planning Commission's recommendations, where they are more restrictive than state law. LUKE: We are more restrictive than state law? HARRISON: Minutes of Continued Public Hearing - HB 3326 Page 9 of 15 Pages Monday, March 11, 2002 If we keep a 1992 prohibition against series partitions and if we allow only one non-farm piece to be broken off from the smaller farms. DEWOLF: And if we apply a five -acre minimum lot size where there isn't one in state law. The reason being, if someone has four acres of crummy, non-farmable land, they wouldn't qualify. DALY: My thoughts are this. In Mr. Darrell Barnes' letter, he makes a statement that I kind of agree with. He said, "The laws make it increasingly more difficult for the average American to own a small piece of land. These laws presume that we are provided safe and affordable food from the grocery store, and apparently we are expected to obtain it there." I'm a lucky person. I own five acres north of Redmond with a little bit of irrigation. It's unfortunate that there aren't more of those available out there, because I would suspect that is the American dream. The land use laws have restricted that completely. I kind of agree that, to the extent that we can, we open that up to a few more people. If you have an old, dry piece of ground that's on farm deferral, the County isn't getting any tax on it. Someone could take that piece and build a nice home on it, and the tax revenue generated should more than offset some of the things that you are concerned about. DEWOLF: I don't necessarily disagree with that. But before land use was here, we had ten thousand lots plotted down in South County, which we are now spending millions of dollars dealing with, because of the potential for groundwater pollution. So, yes, rules have changed over time; but a lot of it is a direct result of the kind of problems that were created without any land use laws. I get concerned about conflicts between people who want to have a little five -acre piece in the middle of a farming area. There's potential for conflict there. Do we have written in here that people will not complain about noise and smell when they are out in farming areas? HARRISON: We do have a right to farm ordinance. The County has adopted that, and we will not pursue nuisance complaints about accepted farming practices. LUKE: Minutes of Continued Public Hearing - HB 3326 Page 10 of 15 Pages Monday, March 11, 2002 All that says is, not that you can't sue, but you'd have less standing if you do sue. HARRISON: The County won't take up that complaint. DALY: I agree with you on the south county problem. That was a mistake, years ago. I suppose we have to look at South County when we're making these decisions. Will these decisions affect South County? Will it create more lots down there? DEWOLF: They are different issues in a lot of cases, since you've got unbuildable lots because of the water table. DALY: It appears that this shouldn't affect that area too badly. HARRISON: The amount of EFU zoned land in South County is very limited. The potential for divisions and the demand for divisions are also very limited. Where we see the greatest impact is in the triangle between Bend, Redmond and Sisters - the Tumalo-Redmond-Bend subzone. LUKE: These have always been difficult for me. I did this in the Legislature where we'd have a big room full of people who wanted to testify on land use issues. And you have to try to keep as much emotion out of it as possible, and look at the demand for services. Of course, Oregon's land use laws were based upon building inside urban growth boundaries where services could be provided to help maintain the land. I used to tell the people in the valley that they build on better land than we have for farming. It always amazed me that as we would go through things, they'd want some exceptions that they wouldn't give on this side of the mountains, when they would build on high quality ground with water that we don't have. We have another problem here, and that is that our lands are getting extremely expensive, because there is getting less and less of it. I have a real problem putting a lot of houses outside of the urban areas, but I also have a good understanding of what it means to own five acres or ten acres. We had lots of testimony in the Legislature from people who travel round-trip thirty or forty miles to farm their ground because they couldn't build a house on it. LUKE: Minutes of Continued Public Hearing - HB 3326 Page 11 of 15 Pages Monday, March 11, 2002 It's been my experience, with my father-in-law's farm, that you can do a lot better job and be a lot better caretaker of the ground by living on it than you can when living in a house thirty miles away. This is tough. You've done a good job and I appreciate your recommendations, but I need to look through this a little bit more. DEWOLF: We aren't on any time constraint, are we? When do we want to make a decision? CRAGHEAD: Since this is a legislative matter, ex parte contact does not apply. You can accept letters and talk with staff. MARTY KIMBERLING: I don't know how recently any of you have been out in the Alfalfa area, but a lot of growth has happened. It's my understanding that the only way I could get a response from the fire department is there is a life in jeopardy in the house. LUKE: That's because they aren't in a rural fire protection district. If they incorporated themselves in a rural fire protection district, you'd get a lot better service. But that requires a tax base. KIMBERLING: My statement would be that the revenue created from non-farm use parcels would help. DEWOLF: No. You've got to be in a district, and they have their own separate tax base. It has nothing to do with anything that comes to the County. It's a separate issue, separate governance, and separate tax base. You could do that today, with or without this ordinance - either form or annex into a rural fire protection district. A date for a decision on this issue was set for Wednesday, March 27, 2002, at the regular 10:00 a.m. Board meeting. DALY: You have discussed the three issues. You have July 1, 2001, for non-farm partitioning. Is this your recommendation? PAUL BLIKSTAD: Minutes of Continued Public Hearing - HB 3326 Page 12 of 15 Pages Monday, March 11, 2002 Yes. DEWOLF: That's the only area that you did not create this draft ordinance in compliance with what the Planning Commission came up with. You must have had a reason for that. DALY: You left the five acres in here, and the one lot, like the Planning Commission recommended; plus the emergency clause. BLIKSTAD: I think the reason for it was that we thought we would be consistent with the new rulings, which will extend the date to July 1, 2001. Again, we are dealing with the state. I don't like it when we have discrepancies between what our ordinance says and what state law says. That was our reasoning behind it. DEWOLF: But everything else in here flies in the face of state law, apparently. State law allows for two, but we propose one. And state law has no minimum lot size, and we're proposing five acres. LUKE: They're just talking about the time frame conflict. BLIKSTAD: We agreed with the Planning Commission agreement on the one and two. The only reason for the five -acre minimum was that we thought we'd give someone wanting to split 40 acres some flexibility. Rather than requiring two twenties, we thought we could give them some measure of flexibility in the division of their land. All land is not created equal, especially when it comes to access. DALY: It was staff recommendation not to have a five -acre requirement BLIKSTAD: Yes. But the Planning Commission recommended this. DALY: Minutes of Continued Public Hearing - HB 3326 Page 13 of 15 Pages Monday, March 11, 2002 I tend to agree with you on that issue. BLIKSTAD: I think their concern was that if they allowed any size out there, there could be a half - acre lot created out there with a single -wide mobile home. I personally don't see that happening out there, as land is too expensive. So they wanted to see five acres. DEWOLF: Even Tammy, who sounds like was the farthest away from the Planning Commission on all these issues, agrees with the five acres specifically to retain the rural character. BLIKSTAD: I think that was the only vote that was unanimous. DALY: The other argument against the five acres, especially if it's dry, in my opinion, is that if you have too much acreage there, you'll only be able to take care of a small portion of it. The rest of it is going to grow up into weeds. If you let that come down to a small enough piece, say two and one-half acres, this would give you adequate enough area for a septic system and so on. You wouldn't do a 6,000 square foot lot out there anyway. You'd need at least two and one-half acres to even make it happen. LUKE: I'm sure staff didn't mean to insinuate in any way that there is anything wrong with a mobile home on someone's property. DALY: What I'm saying is that 6,000 square feet would not work in a rural area. With 10,000 square feet you might be able to put in one septic system. But this still wouldn't comply with the rule that you have to have a 100% replacement area. So you'd have larger lots anyway, probably more like one -acre minimum to two acres. It would be easier for that family to take care of an acre or two than let five acres grow into weeds. That's usually what happens when you have too much land to take care of. DEWOLF: Minutes of Continued Public Hearing - HB 3326 Page 14 of 15 Pages Monday, March 11, 2002 So this will be on our agenda for Wednesday, March 27, at 10:00 a.m. LUKE: I need to ask legal staff, since this is a legislative matter, if we're in a work session or a posted meeting, can we discuss this? CRAGHEAD: You'd need to do it at the open forum on March 27. LUKE: So if we were in a regularly posted meeting, such as a Board meeting, and I had a couple of questions, I can't discuss that with the other Commissioners? CRAGHEAD: I would recommend that it be done on the 27th. You can still talk with staff and talk with the public. It's different when it's a quorum with other Board members. At this time, Chair Tom DeWolf closed the public hearing. Being no further items brought before the Board, Chair Tom De Wolf adjourned the meeting at 9:45 a.m. DATED this IIt`' Day of March 2002 for the Deschutes County Board of Commissioners. ATTEST: (tnWx_z1, tr5� - Recording Secretary Minutes of Continued Public Hearing - HB 3326 Monday, March 11, 2002 Tom De , Chair z D nnis R. Luke, Commissioner Michdel A Daly,-C"o/nmissioner Page 15 of 15 Pages