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2002-1188-Minutes for Meeting August 29,2002 Recorded 9/18/2002COUNTY OFFICIAL MARYHSUESPENHOLLOW, COUNTYRCLERKS U 2002.1188 COMMISSIONERS' JOURNAL 09/18/2002 03;03;37 PM 11111111111111111111111111111111 20020011883 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. Deschutes County Board of Commissioners 1130 NW Harriman St., Bend, OR 97701-1947 (541) 388-6570 - Fax (541) 388-4752 MINUTES OF PUBLIC HEARING www.deschutes.org DESCHUTES COUNTY BOARD OF COMMISSIONERS THURSDAY, AUGUST 29, 2002 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Present were Commissioners Tom De Wolf and Dennis R. Luke; Commissioner Michael M. Daly was unable to attend. Also present were Laurie Craghead, Legal Counsel; Paul Blikstad and Kevin Harrison, Community Development; and seven other citizens. There were no media representatives at the hearing. This public hearing is a continuation of a hearing last convened on July 10, 2002, and was held on an Appeal of the County Hearings Officer's Decision (File #DR - 02 -2; previously File 4DR-01-5) Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone (Applicants: Jeffrey and Pat Dowell). Chair Tom De Wolf opened the meeting at 9: 00 a.m. TOM DEWOLF: I need some advice on how to proceed. There seems to be a variety of ways to handle this. LAURIE CRAGHEAD: For a land use hearing, you need to do the reading of the regular statement. I understand that jurisdictional questions may be raised by the opponent, so you can ask for those to be explained. I would open the hearing and have them provide their arguments on why there are jurisdictional issues, and then you can decide later on the jurisdictional issues. Minutes of Public Hearing Page 1 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGBEAD: Now, you have a choice. You can then either hear just the jurisdictional issues and decide those before going on with the hearing, or you can decide to hear the whole hearing, and then make a decision that you can't make a decision on the other things that you heard. DEWOLF: I guess that's my question. Once we open the hearing, it sounds like we are having a hearing. My inclination would be to decide on those jurisdictional issues first. Because, if in fact we decide we don't have jurisdiction, there would be no point in holding the whole hearing. My question is on a technicality. I guess I'm looking at both attorneys who are present as well. Is that an acceptable way to proceed? If not, I'd want to hear about that. If we are going through the preliminary statement to open the hearing and then take up jurisdictional issues, and make a determination on that, then proceed or not based on those issues. DENNIS LUKE: I have a different opinion. I've been thinking about this, and am inclined to. hear jurisdictional issues first. Since everyone is here, we hear the jurisdictional issues, and then we can set those aside. And hear the land use issues and then decide on the jurisdictional issues. If we decide the jurisdictional issues have merit, we don't even have to consider the land use. The evidence has been presented, and we don't have to come back and try to reschedule. CRAGBEAD: Judges do it all the time. They go ahead with the hearing and later they decide whether they have jurisdiction. DEWOLF: If the issues are presented and it's clear we don't have jurisdiction here today, why go through the hearing? If it's kind of fuzzy, and we want to think about it, I agree we should hear it all. LUKE: I'm happy to hear the jurisdictional issues, but am also inclined to go forward with the hearing. Minutes of Public Hearing Page 2 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: Are you all okay with that? (The attorneys in the audience indicated agreement.) Chair De Wolf then read the opening statement. (A copy is attached as Exhibit A.) V. Pre -Hearing Contacts, Biases, Conflicts of Interest. Do any of the Commissioners have any ex parte contacts, prior hearing observations, biases or conflicts of interest to declare? If so, please state the nature and extent of those. LUKE: This has been before us more than once, and all of that is public record. Legal Counsel and I met yesterday and talked about some of the arguments and motions that may come today. DEWOLF: I also met with Legal, but I haven't met with staff recently. All of the information from the past I believe is on the record, including my site visit that took place a couple of years ago. LUKE: I haven't made a site visit. DEWOLF: This is the case that never ends. I believe I can hear evidence on both sides and make a fair decision on this. Does any party wish to challenge either of us, based on ex parte contacts, biases or conflicts of interest? LIZ FANCHER (Attorney for the Kuhns): They are parties to the proceedings below, and are interested parties in this case, and wish to be heard today under the opponents' section. I wish to ask a couple of questions regarding some statements that have been made in the record, and give you a chance to discuss those if you wish, or just put them in the record at this point. Then my clients will decide. We don't want to make a challenge for bias or prejudgment at this particular time until we've heard what everyone has to say. Minutes of Public Hearing Page 3 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: Some of the issues I raised before in the written material related to a different case that came before the Board, which was a prior decision by Hearings Officer Karen Green that was appealed to the Board. It is my understanding that the record of that case, DR -01-5, was put into the record of this case. There was a fair amount of discussion then about some issues then, and a letter I wrote caused some controversy. Just wanted to sort of ask some questions that relate -- LUKE: Excuse me. (To Laurie Craghead.) I remember that letter, and there was some advice from you on that letter about whether that letter should have been sent to the Commissioners at that time. Is that the letter we are talking about? CRAGHEAD: I think so, but she is putting it in the record now, before you, at this hearing. FANCHER: So I just wanted to kind of find out what is in the record, and just put that in. I Want 'to make it clear that in that record we weren't challenging the Board; we just wanted the Board to address some issues that were of concern. One relates to a work session that was held on October 29, 2001, related to that case. There are a couple of statements that were made by the Chair, by Commissioner DeWolf. I have a copy of the transcript that was prepared by Mr. Kuhn from the audiotape that was provided to him by Deschutes County. I have three copies of it. (She then distributed the document to the Board. A copy is attached as Exhibit 1). The comments that we were just a little bit concerned about were that at that meeting, the background of the case was discussed, and then Chairman DeWolf indicated that, "can't we just set a setback of 25 feet and save everybody a bunch of time and money?" It was in response to a discussion about issues about a 40 -foot setback and the possibility that the Board could set a 25 -foot setback for the Dowell property, in response to the denial of that request by (Hearings Officer) Karen Green. Additionally, there's a statement, "but, do we have to have a hearing, and have them pay for a hearing? Can't we just like wave a wand and be done?" My concern is whether this indicates that the Chairman had already pretty much decided the outcome of the case, or what the point of those statements were, and kind of what is behind that. Minutes of Public Hearing Page 4 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: That is a legitimate question. As you know, for many years, I'm kind of a smart - ass on occasion, and I don't know if this was meant in jest or meant out of frustration. This case has had different case numbers, but I've spent more time dealing with these properties in this general vicinity than any other land use issue over the last three and one-half years. That's just simple frustration on my part that this goes on and on and on. I actually remember asking this question, but it doesn't mean I that I think there ought to be a 25 -foot setback or a 200 -foot setback. I don't know. I really try my best to judge these things based on the merits that are brought forth at the time they are brought forth. But I will be honest with you; it is frustrating to deal with these same properties over and over and over again. It is frustrating to me that the taxpayers are footing the bill for this to go on and on. By the same token, I respect the fact that there are two people here who have a 180 -degree polar opposite perspective on what ought to happen with these two pieces of property. I respect that process as well. That's about the best that I can explain it. FANCHER: Thanks. I appreciate that. LUKE: So you don't have any questions for me. FANCHER: I had marked a couple of things that you said, but they aren't that significant. LUKE: Maybe I'll comment. I've been involved in land use for years; six years in the Legislature and as a homebuilder before that, and as a County Commissioner. The philosophy that has always guided me is that I believe that people should be able to do with their land what they could do when they bought it. If government changes that unilaterally, there should be some compensation. I really believe in the general concept of Measure 7. I also believe that if you couldn't do something when you bought it, then you should have to go through the whole process of either trying to change the law, or through the existing land use process. Minutes of Public Hearing Page S of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: I believe in the land use process in Oregon. I believe that the process is there for a reason, even with its bad parts; overall it is a good land use policy. Whether I agree with it or not, I don't try to change land use policy one decision at a time. I think if you are changing land use policy, you do it through statute in an open process in the Legislature or an open process in the County. So, whether I agree with a land use issue or not, I will try my best in my interpretation along with help from whoever the presenters are plus our Legal Counsel, to determine what the law is. And, to the best of my ability, enforce that or make that determination based on the law. DEWOLF: The complicated thing about this to me is that I'm no attorney. It is complicated to be put into a position of being a judge in situations like this. All I can do is my best to try to understand all of the issues and do my best in those decisions. I'm glad that there are three of us usually; but today there are only two of us here because Mike (Commissioner Mike Daly) is not available. I'm really glad we've got an incredibly competent attorney to help us through these issues. I think she does a good job of advising us and helping to keep us from making procedural errors, although she can't always control what we say. For that, having all of these folks available to us is a big help. Ultimately we get there, although it may be a little messy on the way; but I suspect it is that way in all kinds of land use when elected officials have to make decisions. I hope that helps to explain things. FANCHER: I have a few other things. One is something I want to put in the record, which is a letter that was provided to me by Gerald Martin. It relates to the other hearing, and I mostly want to put that in the record because it indicates my clients' point of view and Mr. Martin's point of view regarding a meeting they had with Commissioner Luke. Part of our concern is the Commission has been very involved in a lot of these issues all along, and we don't know if that has influenced you at all. We know this has been a contentious matter, and we're concerned that perhaps there might have been positions arrived at already, or determinations made that really at this point we wouldn't really have much of an issue. Or much of a chance to really be heard. Minutes of Public Hearing Page 6 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: The letter just indicates that the information that was put in my letter that was of concern to Commissioner Luke was not intentionally false, and that it was provided based upon our understanding of what had happened at a meeting in August of 2000. LUKE: When this meeting occurred, there was no application before the Commissioners then or I would not have met with them. FANCHER: It was in 2000. It was related to the development of the property and the 400 -foot setbacks, and how to measure it. LUKE: Was there a current application before the County when your clients met with me? FANCHER: There may have been an appeal. (She then spoke to her clients off the, microphone.) No, there. was not. LUKE: I clearly would not have met with them and their attorney without the other side there. That simply doesn't happen. FANCHER: Right. I wasn't claiming that you were. This is just background in terms of the County making decisions essentially about the property that relates to setbacks. That was our concern before in the prior letter. This is just explaining the information that was in my letter. DEWOLF: Do you mean the potential for a decision having been made outside the public hearing process? FANCHER: No, it's just that what had happened before is that there is a decision made on a different issue that is somewhat related to this case, in terms of setbacks. Minutes of Public Hearing Page 7 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: I would point out that any land use decision made by this governing body would have a potential impact on this case, because all land use decisions feed upon each other as you go through the process. Isn't that true? FANCHER: This was an informal determination by the Board, it wasn't -- LUKE: This wasn't an informal determination by the Board. This was a meeting, according to your letter, between George Read and myself, and your clients, who weren't your clients at the time, and their attorney at the time. There was some discussion of, and I had not made a decision on, setbacks. George Read had made a determination, and as the head planner, he does that on occasion and that is open to public discussion and debate, and public challenge. I appreciate the letter, but I'm not quite sure what the point of the letter was. FANCHER: I believe that at the time we raised the issue before, the concern' was, that we. were thankful it wasn't true. I think we understand each other now in that you were not actively involved in the meeting; you agreed with George Read, but you didn't present in a strong way any position. You feel that you can now proceed with the matter. LUKE: One, I don't believe I instigated the meeting. FANCHER: Correct. LUKE: I'd like to walk through the process. One, I don't believe I instigated the meeting. I believe I was asked to be there, which was fine. There was not a quorum of the Commissioners there, so you're not getting a County decision. So, my chief planner, George Read, the head of the building department, made what I considered - because I hadn't studied it - and I accepted his reasoning as he presented it. Minutes of Public Hearing Page 8 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 Wei" There was no determination by the County one way or the other. George had presented his view of how this should be done. Unless there was a general policy change within the County, at least two Commissioners have to approve that. DEWOLF: Can I clarify? It sounds to me that what you're looking for here is whether Dennis, in this particular case, or me in the previous situation, believe today that we can hear this case with an open mind and make a decision based on the merits of what is presented to us. Is that accurate? FANCHER: Yes. DEWOLF: Okay. I believe that I can, and it is up to you and your clients to determine if you believe that. Is that your same position? LUKE: I, think that's what I said before, that, as you do, whether I agree with the land use law or not, I try to make the determination on all land use issues. based on the law and the facts presented to us. You can keep going, but I am just trying to clarify the letter. FANCHER: I appreciate that, and I really didn't intend to have this take up so much time. The last issue relates to a concern that we have, which is that this particular case now in front of you involves an issue of whether the Dowells have the right to put us through this process again. We also, like the Board, don't really want to be here today and don't think we should be here. LUKE: Is this a challenge to -- I was going to ask the Chair as he read through how the hearing was going to proceed, we've already gone away from the way this is supposed to -- DEWOLF: No, we are doing it exactly, "does any party wish to challenge based on ex parte" That's what she is asking about. Minutes of Public Hearing Page 9 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: That's what she is doing here. But if she starts to get into whether we have the Constitutional ability to even hear this, I think that we ought to -- FANCHER: I'm sorry for not being more succinct. The issue is that at the last hearing, at the end of the hearing, on December 12, 2001, what happened was that there was a case and then an appeal. The appeal was withdrawn. Under the County's procedures ordinance, my understanding was that the issue was then finished. At the end of that meeting there was a discussion between my client and Commissioner Luke, and I guess I'll ask my client, Mr. Kuhn, to relate that briefly. WILLIAM KUHN: Good morning, Commissioners. My name is William Kuhn, and I live at 65575 Sisemore Road. On December 12, 2002, at 3:00 p.m., there was to be an appeal hearing. That appeal hearing was at best truncated, because the appeal was withdrawn. Immediately after that appeal hearing, I approached Commissioner Luke because he is the most direct overseer of the Community Development Department; and I asked him if it was possible for us to meet to discuss the situation: , ; , It was my understanding at that time that there was nothing in front of the Board of County Commissioners at that time because the appeal had been withdrawn. Commissioner Luke's response was, no; you may not meet with me; this issue is not settled, and it would be ex parte, because this is going to come up again in January. That's my statement. LUKE: I would point out that we opened the hearing, announced that it was being withdrawn as far as we knew, and then closed the hearing. As a Commissioner and a hearings officer on land use issues on appeal, I had no idea where this was going. This was pulled at the last minute. Up until about five minutes before the hearing, we thought it was going to take place. My recollection of the conversation is that I would check with Legal Counsel to try to see where this was, to see if it was proper to speak with interested parties of either side. Minutes of Public Hearing Page 10 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: There is a major difference between a legislative issue and a land use issue. In a land use issue, ex parte contact is very much frowned upon by the law, and is a basis for appeal. And I am very careful about that, and try not to put myself into a position where it would jeopardize either side of a case. My normal position is to check with Legal Counsel, and I believe I checked with Legal Counsel, to see if would be proper to talk with either side. KUHN: It was my impression, Commissioner Luke, from our conversation that you had some type of former communication regarding what was going to happen. That was my impression. You left it very clear. LUKE: I disagree with your recollection of my saying we'd be back in January. Because I didn't know until just before that hearing with Counsel that it was going to be canceled. KUHN: We knew the day before. LUKE: I did not. FANCHER: I want to indicate that staff had advised us that there would be a reapplication, and that we were going to be seeing a new application. Mr. Blikstad let me know that. DEWOLF: Prior to then? FANCHER: Prior to the hearing or on the same day of the hearing, that we were going to be having another application. I was surprised, and I don't remember exactly what time on that day. Minutes of Public Hearing Page 11 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: I would point out to you, just for the record, that there are a lot of land use applications that come before the Community Development Department. That staff does not meet with us on a regular basis and tell us about all the land use applications that they are reviewing, that the Hearings Officer is going to review, that potentially might come to us. FANCHER: We were just wondering. LUKE: May I just finish, for the record, please? What normally happens is that they typically share every Hearings Officer decision with us. It comes through in a reading file, we take a look through those, and we usually take a look and see what the issue is. I usually look through to see what the issue is and what the Hearings Officer's decision is. Then we wait. I really don't worry about them too much again unless there is something that catches my attention in that maybe the Hearings Officer might have been wrong, and there's a general across-the-board policy issue that we might want to discuss. Or if staff believes that, sometimes they come to us, but very seldom. So we do not have daily contact on what has been applied for at Community Development, or even what the Hearings Officers are hearing. DEWOLF: Do you have a specific question? FANCHER: I think that what I will do is just put information in the record and leave it at that. We're just concerned that the applicant in this particular case had discussed and obtained the ability to have this question heard again by the Board, and we don't know if that's true or not true. We received a copy of an e-mail message from Mr. Watts to Mr. Dowell dated the 13th, a Thursday. (A copy of this e-mail message is attached as Exhibit 11.) LUKE: Who is Mr. Watts? DEWOLF: He's the guy with the three pieces across the street. Minutes of Public Hearing Page 12 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: The neighbor. He wrote a letter indicating that he's glad things worked out well, and considers it basically a victory, what presumably happened. And we believe that the County, and since it was dated December 13, 2001, the day after -- I'll just put that in the record. DEWOLF: Did he mention any of the County Commissioners or staff by name? FANCHER: No. That's why I wanted to ask about it. DEWOLF: To my recollection, and it has been three and one-half years, I don't believe that I have ever met Mr. Dowell. The only person I believe I've ever dealt with on this has been Bob Lovlien, in hearings like this. Never talked with him, to my recollection, outside of a public hearing on this issue. FANCHER: There's also a letter of January 21, 2002, that is already in the record, in that Mr. . Lovlien is asking that your Legal Counsel help determine whether the question that was being asked was broad enough to get a determination on the sideyard setback. (A copy of this letter is attached as Exhibit 12) DEWOLF: Who is the letter addressed to? FANCHER: To Paul Blikstad in Community Development. LUKE: I'd like to point out that Legal Counsel advises the Board, but does not represent the Board. Legal Counsel also advises Community Development. One of our Legal Counsel is available to all of our departments, depending upon their specialties. So, Legal Counsel is here to provide legal counsel to departments when it is requested by any department. Minutes of Public Hearing Page 13 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: The final issue of concern is from a transcript, or minutes, of the meeting of the Board of Commissioners of June 5, 2002. That particular transcript shows that Commissioner Luke made a statement related to this case, that you think there is a difference "between this one and the first time it was submitted", related to the question that was being raised in the case that was before the Board. On Wednesday, June 5, 2002, there was a statement from Commissioner Luke. Prior to that time there was a question from Commissioner Luke; "I have a question; have we ever accepted a notice of appeal that weren't entirely on a County form?" And there was a discussion about that. Then Ms. Craghead said that the argument that I brought up should not have been voiced to you, as you can't consider it.... it might limit what you can do. And then Commissioner Luke said, "I think there is a difference between this one and the first time it was submitted. I move we hear this appeal". (A copy of this document is attached as Exhibit C.) LUKE: Wasn't that the argument that was being made, that this was the same appeal? I'm not sure how you mentioned it before, but you were talking about ... Wasn't the whole question -- if it was -- it was my understanding, and Counsel can- correct me if I'm wrong; it was my understanding that the argument was that you only get one bite at the apple, on a particular case, on an appeal. And that the argument was being made that this was exactly the same as the previous appeal that had been cancelled or withdrawn. FANCHER: Correct. LUKE: Okay. The question of whether we hear, which is the reason we are here today, whether we hear this appeal or not, is if this appeal is different than the one that was withdrawn. Because the argument was being made that if they were the same, we wouldn't be here. FANCHER: Is this a response to that issue? Minutes of Public Hearing Page 14 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: I would assume it was. Because that was the whole question of whether we hear this today or not. CRAGHEAD: What Liz is getting at is that because of that statement, had you already made up your mind on the jurisdictional issue, because that statement may indicate that you already made up your mind prior to the public hearing. LUKE: When we decide whether to hear an appeal, we do not hear arguments from the proponents or opponents. All we do is talk with staff -- Legal staff and our planning staff. DEWOLF: That's not completely accurate. Because we do get the notice of appeal written by the proponents with the reasons why we should hear it. LUKE: I think that yes, I was trying to determine. if I believed there was a difference in my mind, without hearing legal arguments and without everything being put in front of me, that there was a difference between the two appeals. Now, if I had decided in my mind that with the evidence we had that there was not a difference between the two appeals, we wouldn't even be here today. Or at least there would be one vote not to be here. I have not, and I am here to listen to oral arguments if the opponents believe that this is the same basic appeal as the one that was before. If they present persuasive arguments, I'm open to listening to that. Isn't that part of the process? Okay. I think that's what Liz is getting at. DEWOLF: But that is the reality. The decision that we were forced to make was whether we thought it was the same, exact issue or a different issue. That was the basis upon which we decided whether to hear this. Right? Minutes of Public Hearing Page 15 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: I don't know if that was the basis, as I haven't looked at the record to see if that's what -- LUKE: One of the basis. It was one of the deciding points. Whether you though the issue had merit or not, that is one of the reasons you decide to hear it. But then you go to the law that says, if it is the same appeal, then whether you think it has merit or not is irrelevant. Because the law says if it is the same appeal it has to go through another process, and you start all over again. CRAGHEAD: Okay. FANCHER: Okay. I'd like to put ... (off microphone; unintelligible). CRAGHEAD: Did you want a response to the letter that was in the record from Bob Lovlien, asking me to (unintelligible) the question? Since you are submitting it, do you need a response from me on that? (Discussions then occurred off the microphones. A short recess was taken at this time.) FANCHER: After considering your responses, my clients are convinced that the Chairman is able and willing to proceed and be fair and impartial, and things of that nature. We would like to object, however, to Commissioner Luke hearing the matter, and ask that you excuse yourself, based on your opinion related to the case, the issue before you today, whether this is the same question. LUKE: Excuse me. The issue before us today is an appeal of a Hearings Officer's decision, isn't that true? CRAGHEAD: (Facing away from the microphone. Unintelligible.) .. whether or not it is the same. Minutes of Public Hearing Page 16 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: The issue that was appealed to us by the proponents is a decision of a Hearings Officer. An appeal of a Hearings Officer's decision. The separate issue that the opponents are raising is that we shouldn't have come here to start with. CRAGHEAD: Right. Because that was the Hearings Officer's decision, denying the application for the declaratory ruling. She denied it based on the fact that she thought it was the same. LUKE: So there is a request now that I myself from this hearing. I'm looking to Legal Counsel to tell me what my options are. CRAGHEAD: Your options are to excuse yourself if you feel you are biased; or to not excuse yourself and then be subject to an appeal to LUBA (the Land Use Board of Appeals), where they would have to show bias or prejudice on your part. (There was a brief recess at this time so that Commissioner Luke could speak with Legal Counsel.) DEWOLF: Can I ask a question? I want to know what the difference is when the decision that Dennis talked about in hearing this case or not; my recollection is that I was of the same belief, that based upon what was before us that this is a different issue, which would be in conflict with what the Hearings Officer said. Why would your clients believe differently about me than they would about Commissioner Luke on this? If that's the reason you asking him to excuse himself, what's the difference? FANCHER: I guess I really didn't understand the testimony to that extent. The question is whether you had already decided the issue. Minutes of Public Hearing Page 17 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: This is sort of a philosophical thing, and I am going to try not to ramble. But my belief is that when someone appeals something from the Hearings Officer, our decision about whether to hear that appeal is, do we believe there is a significant policy issue at stake, do we believe that there may well be merit to the position of the appellant, that the Hearings Officer may have made a mistake. It doesn't necessarily mean that I agree with them, but that I believe the case that they have made is worthy of us hearing. Having believed that they may be able to make a case, that the Hearings Officer's conclusion was incorrect, that it's worth hearing. The law doesn't allow me to hear from you in that situation. I only get to see staff reports, talk with staff and Legal Counsel, and get the record and then have the appeal notice. That's all I get. So I have to make my decision with really only two-thirds of what I'll get at the hearing on appeal. If what I read makes no sense to me, then I don't hear the appeal; and we've done that as well. So, I don't think that necessarily means that what I am saying is that I've already made a determination. What I believe I'm saying is that it allows for the possibility that they are right, and that's what we're here to take up. Does that make sense, Liz? LUKE: And I want to follow up on that. FANCHER: Yes, I understand what your position is. LUKE: Whenever an appeal comes to us, as Commissioner DeWolf has said, all we can consider is the written argument that's made by whomever is appealing. We take staff reports and any advice that Legal Counsel can give us on the correct procedure that we are trying to follow. We then, with a limited amount of evidence, have to make a determination on whether we think there may or may not be some merit to the argument. If you take the position that just because we hear an appeal that we've already made up our minds, I reject that entirely. I think the idea of taking an appeal is so that both sides can make their arguments. Minutes of Public Hearing Page 18 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: Usually when we hear de novo there is some argument that has been made that there is new evidence that wasn't available to the Hearings Officer that we should consider. It is up to us to consider, after we hear it, whether we think that additional information is relevant. We have an opportunity then to hear the attorneys so they can give their interpretation of what they believe the law says, and we have to take all that information and make a decision. To make a statement that just because we hear an appeal we have already made up our minds, I reject that out of hand. DEWOLF: Do you still see the two of us as different in this approach? FANCHER: What we see is that there was a statement on the record that the ultimate question that is before you today was resolved, as deciding that we had different questions. That is a concern to us. We do not view the opportunity as to whether to hear the appeal as the ultimate decision. We have already objected to the whole process. We don't believe the County's Code is legal or enforceable. We don't believe that it should have been enforced, in that anything that a party: below has to say about whether the Board hears the case is really a valid way to proceed. We believe it is not appropriate to look at the issues that go to the merit of the case and decide whether to hear it, when an actively involved party is not a part of that process, and cannot speak, and their materials are deemed illegal by the Board. DEWOLF: That sounds like a jurisdictional issue as opposed to an issue of bias. FANCHER: I don't believe it is the issue in the case. It is the issue that caused the Hearings Officer to deny the declaratory ruling that was filed by the Dowells the second time around. She didn't answer the question because she said the question had been asked before. I 1eJ114 May I ask you a question? I assume that the June 5 meeting was the first time the Commissioners heard of the appeal, when the Commissioners voted to go with this. Minutes of Public Hearing Page 19 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: Correct. LUKE: If I remember, you did not have an opportunity to present anything to us on that because of the way the law is structured; is that correct? FANCHER: That's what County code says. And we objected to that. LUKE: Did you have an opportunity at that time to present any arguments to us as to whether we should hear it? FANCHER: No. LUKE: So, if we are to hear your arguments on the record, and be able to consider those arguments, the only way that can happen is to have an appeal, to actually hear the appeal. So, if we have question's about whether this is Constitutional, whether this is a correct procedure, the only way we can take that on the record is, to hear the . appeal under our County code. Is that the way it is set up? FANCHER: For you decide the issue? Yes, it's obviously the only way for you to decide a case is to take the appeal. But you can decline to hear the case. i1" But if we decline to hear the case, then you would not have had the opportunity to make the arguments you want to make. Is that right? FANCHER: Correct, but we had no interest in being heard. We wanted the case to not be heard. That was our position. LUKE: I think that what I said on the record, that I was interested in hearing the arguments, that the stuff that was presented to us by staff and by the proponents raised enough questions in my mind that I wanted to hear the arguments on both sides and make a decision. Minutes of Public Hearing Page 20 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: I believe, as I said at the beginning, and in the middle, and now, that I can hear this issue on its merits and do my best to make a decision based on the law. DEWOLF: Do you have any advice for us, one way or the other, or should we proceed? CRAGHEAD: If that's his feeling, we can proceed. DEWOLF: The question now is one of procedural issues before us, correct? Do you have procedural issues you want to raise? (Unintelligible discussions off the microphone) DEWOLF: If you are questioning our ability to hear this at all, based on procedural issues, let's do that first. FANCHER: I did raise some issues in a letter that dated June 5, 2002. I believe, it wasn't considered, and want to make sure it is in the record. If it's not, I'll put it in the record again. I'll ask Ms. Craghead if the June 5 letter that raises jurisdictional issues is in the record now. CRAGHEAD: Did I pass that on to you, Paul? DEWOLF: I don't have a copy of that. I'd like a copy of it. FANCHER: It has a copy of the May 30, 2002 letter attached. (She then distributed copies of the packet, a copy of which is attached to these minutes as Exhibit 3) DEWOLF: This includes e-mails, too? This is all one thing? FANCHER: This is all the information related to whether to hear the matter. Minutes of Public Hearing Page 21 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone, Thursday, August 29, 2002 DEWOLF: You are not suggesting that we make a determination at this moment on the jurisdictional stuff? You are okay with moving forward with the hearing? FANCHER: I don't have any objection to you deciding as part of your decision. That's fine. LUKE: It would be the first part of the decision. DEWOLF: That is what you are suggesting? That if we do use -- FANCHER: The process you want to follow is the process you follow, and we don't have a feeling one way or another about it. You know, if you are willing to decide it now and first, certainly that will save everyone the time of proceeding through with the rest of the hearing. DEWOLF: If we agree with you. FANCHER: If you agree with me. But, if you disagree with me, it really doesn't make much difference one way the other because we'd proceed with the rest of the hearing and move forward to your decision anyway. It doesn't matter. Whatever you wish to do, we have no objection. LUKE: I need five minutes. (The group then took a short recess.) FANCHER: You've been asked to address jurisdictional issues, and with your permission I will not address the issue that I think is before you on t he appeal, which is whether or not it's the same question. I will just address what I believe are jurisdictional issues under the Code. Is that okay? I think Mr. Lovlien should get to go first. Minutes of Public Hearing Page 22 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: If everything you have is already in writing, then we don't even need to do that. FANCHER: It's in writing. DEWOLF: We can just go through this as part of reviewing everything. If that's okay with both sides, we'll do that. CRAGHEAD: Are you providing time, though, for rebuttal on this issue from the applicant? DEWOLF: Well, there's absolutely no question in my mind that we are going to leave the record open, at least the written record, for a period of seven days with an opportunity for rebuttal for seven days. LUKE: I have a question. Since this is in writing, and you're going to go. through oral testimony on this, is that true? Is there anything oral -- sometimes an .oral argument makes different points. FANCHER: It would take about one minute. LUKE: The other question I would ask, then, of Mr. Lovlien, is that there are two things going on here. If we are going to decide the jurisdictional issue before we hear the land use, maybe we should take a recess, look at this, and see if the argument is persuasive enough. If we do that, then Mr. Lovlien should have an opportunity to go on the record right away. Since he has not had this before, and if we are not going to do that; if we are going to accept this with a little bit of oral testimony from the attorney, and then go on with the hearing, I would suggest that Mr. Lovlien be able to respond to this in that seven days in writing, so we will have both written and oral testimony. Minutes of Public Hearing Page 23 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: My suggestion is, and as I tried to say earlier, is that if there is something you want to highlight in here, that's fine. But that we are not going to make a decision on jurisdictional issues today. And that we are going to hold the record open maybe longer, but certainly seven days for further written testimony, and then allow seven days for the proponents to respond to this or anything else that is submitted today. So we'll have at least fourteen days before we have all the information before us in order for us to make a final determination on both jurisdictional issues first, and if we agree, then we don't deal with the rest. If we disagree, then we would deal with the rest. And then let the appeals process go from there. Does that sound okay to everybody? LUKE: The only question I would ask of Mr. Lovlien is whether he wants any oral testimony on the record today before we actually start on the land use issue itself, the appeal issue itself. If you want to address jurisdictional issues verbally; and then would you be -- you don't have to, but I would ask -- are you going to submit written testimony against these points. Regarding the jurisdictional issues, I will not address the issue before you on.the appeal as to whether this is the same issue. I will just address jurisdictional issues. Is that okay? DEWOLF: If it is in the record, we can review. We will leave the record open for a period of time anyway, with an opportunity for rebuttal. LUKE: Is there anything in oral testimony that would be different? The other question is of Mr. Lovlien; if we are going to decide jurisdictional issues before we hear land use issues, we should recess and review. If we do that, then Mr. Lovlien should have opportunity to go on the record right away. If we are going to accept this with a little bit of oral testimony, I would suggest that Mr. Lovlien be able to respond in writing. BOB LOVLIEN (Attorney for the Appellants, Jeffrey and Pat Dowell): (He spoke from the audience area, away from the microphone. His remarks were unintelligible.) Minutes of Public Hearing Page 24 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: Anything you'd like to highlight, Liz? FANCHER: First is that this was sent to Mr. Lovlien. He has had it since June. But I did want to add that our arguments are also based on Deschutes County Code 22.32.010. The ones that I'm talking about that relate to jurisdiction are 6(a) and 6(b). The County Code says that the Board is supposed to determine jurisdiction when they have a matter before them, and that any jurisdictional issued essentially have to be raised by clients to you. So I raised them in writing so that you could consider them. I did not mention in the issues that I raised in my June 5 letter that DCC 22.32.010 requires that the appeal be filed by the party. The appeal was filed I believe by Mr. Lovlien. It was not filed by the Dowells. And the notice of appeal by the County Code has to meet the requirements of 22.32.015 and 020. We believe that the applicant failed to file a completed notice of appeal on a County form, because it does not contain the required signature of the appellants. And additionally, the appellant is required that an appeal de novo should be heard de novo rather than on the record. In this particular case, the appellant didn't state any reasons why it should be heard de novo. They said only that it's appropriate for the Commission to interpret its ordinances, without explaining why new evidence should be heard on the matter. Certainly to interpret your own ordinances doesn't require new evidence. And that's the argument. Thank you. DEWOLF: How long do you think the staff presentation would take? BLIKSTAD: Five minutes. LOVLIEN: Mine would take fifteen minutes max. (Mr. Blikstad then read his staff report; a copy of which is attached as Exhibit B.) LUKE: How wide is the lot? Minutes of Public Hearing Page 25 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 BLIKSTAD: Two hundred feet. And the side yard setback is being interpreted as 100 feet, making the lot unbuildable. LUKE: Is there a process in place that if someone comes in with an application to build a home, they would ask for a variance or a conditional use permit if they wanted to get closer to the property line? BLIKSTAD: He could potentially apply for a variance. My gut feeling is that because he has only owned the property since -- I don't know exactly how long -- but this one hundred -foot setback has been in place in 1979. The ordinance says you can't have a self-created difficulty. It says if you knew or should have known of the restriction when you bought the property, that's a self-created difficulty. So I'm not sure if a variance is likely in this instance. DEWOLF: When. did they purchase the property? LOVLIEN: (Off the microphone) After 1983 I think. LUKE: Is this same restriction the same on every piece of property in this development? BLIKSTAD: On any F-2 zoned land in the County. If it is next to zoned forestland, yes. DEWOLF: Do you have a sense of if, in fact, you have a hundred -foot setback since 1979; and to purchase later than that and try to get that changed is a self-created problem? BLIKSTAD: The ordinance says that it is. DEWOLF: How would Karen (Green) have arrived at a conclusion that less than one hundred feet would be okay? Minutes of Public Hearing Page 26 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: Her conclusion was based on the previous approval. The previous approval said less than one hundred was okay. LUKE: Because there is an existing structure on the property. DEWOLF: That approval was sometime in the early 80's? BLIKSTAD: Are you talking about the landscape management plan? CRAGHEAD: No. LUKE: If the lot is only two hundred feet wide, and there's a one hundred -foot yard setback on each side of the house, somebody along the way approved the house. BLIKSTAD: There was a landscape management application submitted in 1992. DEWOLF: Do we know when the structure that's there was built? BLIKSTAD: It was finaled in early 1997. LUKE: So somebody along the way approved a sideyard setback of less than one hundred feet. BLIKSTAD: It appears, based on the plot plan that was submitted for the landscape management plan in 1992, it didn't show it meeting a certain front setback, but it did show it having a fifty -foot south sideyard setback. This has really been a convoluted piece of property, because we had -- well, if you read the staff report and the hearings officer's decision, we had a conditional use that was rejected out of hand, and then they resubmitted for a partition, which was rejected. Minutes of Public Hearing Page 27 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 BLIKSTAD: Then they resubmitted as the same thing, and somehow the process changed it. The County said that you need to file a conditional use permit for a cluster development, because we're not going to let you have two twenty -acre parcels out of this thing. So they amended it and got the conditional use approval, and the partition ended up with two four -acre lots approximately, and the remainder as an open space lot. Well, it was zoned forest use so it is somewhat problematic in how you would develop it. Even back then you had one hundred -foot setbacks. Like I said in the staff report, our land use, the 1979 ordinance, was in its infancy in 1980, and I don't think they had the wherewithal to address every issue. We have previously recommended forty -foot setbacks previously in both DR -O 1-5 and DR -O l -2. It's something less than one hundred and it's either forty or fifty, or you're going to have to go somewhere in between that and one hundred. If you can agree with Karen Green's decision that it's less than one hundred, it's got to be something. LUKE: Who did you make that recommendation to? BLIKSTAD: We made it to both hearings officers. LUKE: But you haven't recommended a change in the zoning law for a general, across the board change. DEWOLF: So, is this proposal from staff been limited specifically to this property? BLIKSTAD: Yes, just this property. LUKE: How many properties are in this development? BLIKSTAD: Well, he's applied for a declaratory ruling for his piece. There are two building lots, surrounded by forestland and one that was rezoned EFU. Minutes of Public Hearing Page 28 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 BLIKSTAD: I did want to let you know that we did receive a letter from Bob (Lovlien) on behalf of his client, waiving the 150 -day review period, so there is no question there. That's all I have. CRAGBEAD: May I ask a question of staff? You are recommending a forty -foot setback. On what basis are you recommending that? BLIKSTAD: That was based on what we reviewed through the procedural history of this property, what has gone on over the years. I believe it was based on one of the plot plans that was in the record. LUKE: Since the record will be open, I'd appreciate it if you'd put that recommendation in writing or as part of the written record. BOB LOVLIEN: Just one thing. I got a call from.Jeff Dowell yesterday afternoon; his flight back from London was late so he was unable to make it back here in time.. I want to orient you to where the property is. (He referred to an oversized aerial map, 'showing the Dowell property and the Kuhn property. A copy of this aerial map was not available to attach as an Exhibit to these minutes. He also referred to a survey map, a copy of which is attached as Exhibit 13.) Originally the Kuhn property was almost a mirror image of the Dowell property. It was also two hundred feet wide, and extended about five hundred feet back from Sisemore Road. They did a lot line adjustment to reconfigure the lot, and both were reconfigured the same way. This was an early attempt to try to create a cluster development. A conditional use permit approved a cluster development in the forest zone in 1980, so there were two building parcels created, each two hundred feet wide, with a thirty-four and one half acre common area parcel, which the Dowells continue to own in common. It is restricted to open space and is not developable. Minutes of Public Hearing Page 29 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: Where is that? LOVLIEN: (He referred to the map. A brief discussion followed.) That's an unbuildable parcel, according to the conditional use permit. So there were originally two lots, both approved at two hundred feet wide. DEWOLF: I just want to clarify ownership. In 1980 when this cluster development was approved, was there one developer at that time? LOVLIEN: Yes. DEWOLF: Was that either of the two folks who now own these properties? LOVLIEN: No. LUKE: Just for clarification. Were cluster developments -- there wasn't much reason to do cluster developments before 1979 because there were no land use laws then except for some zoning laws, is that correct? LOVLIEN: The cluster development was created in 1979 as part of the comprehensive plan. LUKE: So it's probably true that this was one of the first cluster developments created. LOVLIEN: It may very well have been the first. (He then referred to the oversized photos of the two properties.) Here are the residences from Sisemore Road. This would be the Kuhn residence in the background. This is the Dowell residence in the foreground. Minutes of Public Hearing Page 30 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 (There was then a general discussion of the photos. The photos were not available to attach to these minutes, but presumably are apart of the record.) LOVLIEN: This is meant to give the Board an idea of the lay of the land and the scale and terrain. The record is quite complete on what has gone on with this file. In the approval of a cluster development, the County has always had the authority to set sideyard setbacks down to twenty-five feet. So the approval on the establishment of setbacks should have been done at the time the conditional use permit was granted for the cluster development. However, there is nothing in the record that indicates a specific setback had been established in respect to this. DEWOLF: And on specific, individual properties, within whatever zone, is that what you're saying? LOVLIEN: No, in a cluster development in the F-2 zone. DEWOLF: So in regard to cluster developments, you can have a twenty-five foot setback in one cluster development, a fifty -foot setback in another, and seventy-five in another. Is that correct? LOVLIEN: Yes. Our position was that when the conditional use permit was approved and established two properties that were only two hundred feet wide, the County had to have approved some setback of less than one hundred feet, or they wouldn't have approved the two lots that would have been in essence unbuildable at the time. I don't think that's what anybody contemplated at the time. The record shows how the County subsequently approved the landscape management zone for the Dowell residence, again approving a setback of less than one hundred feet to allow for the development of that residence on that particular lot. The issue that is before you now is what setback was in fact established by the County through the prior land use decisions. Minutes of Public Hearing Page 31 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LOVLIEN: The issue that Paul laid out quite well in his staff report is this: what did Karen Green say? I think what Karen said is that I did a bad job of lawyering when I applied for the first declaratory ruling. The reason I did a bad job is that I asked for a declaratory ruling that there is a twenty-five foot setback on this property, even though the record of the prior approvals had nothing in them that established a twenty-five foot setback. So, when we went through all of the land use records, it was clear that what Karen said was yes; there is a setback that was approved that was less than one hundred feet. But not a setback of twenty-five feet. And I did not ask the question, "What is the setback on this particular lot?" So I submit that the question is quite different than what we're asking this time, because I am coming back now and am asking the question that should have been asked and was not asked. That is, what is the setback on the Dowell property, based upon the review of all of the prior approvals in this particular file? And staff has been consistent in both staff reports, and they are consistent today, that when they look back and review all of the records and all of the plot plans, it is staffs opinion that there was a setback of forty feet approved for. this particular property, based upon the plot plans that had been filed for the Dowell residence. We're sitting here saying, that's acceptable to us. That would be consistent with the plot plans that were filed, forty feet would be consistent with what's on the property, and forty feet would be consistent with the plans that have been submitted in landscape management prior to that time; and that if I had asked the proper question the first time around, we wouldn't necessarily have to be here. LUKE: May I ask a question? Procedurally on this, was there an adverse opinion that prompted you to come in and ask what the setback is? Did they apply for a building permit and were turned down or something? LOVLIEN: We're in a position to have to file for a landscape management review so that Mr. Dowell can finish his house. Minutes of Public Hearing Page 32 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: Again, it's a procedural issue, and I'm trying to get some education here. If a landowner would come in and apply for a building permit and submit a landscape management plan with a forty -foot setback, staff would look at that and either approve or reject it based upon their interpretation of the setback of that lot. Is that fair? And then the applicant would have the ability to either accept or appeal that decision, and that would then go to a Hearings Officer. Is that the process? LOVLIEN: What we anticipated is that there was going to be an issue raised because there had been no determinations to what the sideyard setbacks were. This proceeding is available under your Code to seek a declaratory ruling. In other words, please interpret your prior land use decisions and tell us what the setback was that was approved, so I can apply for my landscape management permit and apply that setback that has been determined. DEWOLF: So if in fact Karen didn't say, and staff doesn't know what Karen meant, and there's nothing in the record indicating that there was a specific setback determined, why go through an appeal process to have us declare what that setback is if nobody knows, and there's no record of what it was? Rather than just reapply to the Community Development Department for that ruling to determine what the setback is. What I am asking is, why is this the appropriate venue as opposed to a different venue? LOVLIEN: This is the one that, quite frankly, I had discussed with George Read, regarding our options on how to proceed through this. I agree with Paul; I don't think the variance would be granted based upon the criteria that the variance sets up. We thought this made sense. Let's file for a declaratory judgment, and let's determine what the sideyard setback actually is. Because there had been approvals for a dwelling, and landscape management approvals for a dwelling, that obviously established a sideyard setback of less than one hundred feet. So there's a building that was lawfully created. So there had to have been some setbacks. This seemed to be the appropriate mechanism to ask the County to determine what that setback was, based upon the prior record. Minutes of Public Hearing Page 33 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: I don't want to put words in your mouth, but I heard staff say that they made a recommendation to the Hearings Officer of forty feet, in written comments. That was after review of the lot and the procedural history of that lot. I believe I heard you say the same thing; that staff had determined, through the presentation to the Hearings Officer and by going through the procedure, that forty feet is the sideyard setback. Is that right? LOVLIEN: We would accept that staff recommendation. It's not comfortable to come up here and say that I didn't do a very good job the first time around, because we didn't ask the right questions. LUKE: I think what Commissioner DeWolf said is that nobody has made a determination. Staff actually made a written recommendation that, based upon the procedural history of this property, was submitted to the Hearings Officer which -- and I would need to look at the record or ask staff -- did she reject your recommendation? Or did she just not deal with it? LOVLIEN: She did not reject that recommendation. She answered the question that I asked. That is the problem. I didn't ask her to establish what the sideyard setback is. DEWOLF: So your contention is that you failed to ask the question that would have resulted in the answer you are seeking. LOVLIEN: Yes. DEWOLF: Okay. LOVLIEN: That's what I think Karen said and why Karen wrote the decision she did. I scratched my head a while to figure out what she had in fact said. Then it became real apparent what she said, that there was no other answer to the question that I had posed in the first declaratory ruling application. Minutes of Public Hearing Page 34 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LOVLIEN: So we have come back and asked not whether there is a twenty-five foot setback; we're asking what is the setback for this particular property. And the setback, as recommended by staff, is forty feet. And based upon all the review of the record, I can't find anything that says it should be anything different than that, and we would concur with that. LUKE: I want to ask a question, but before I get an answer, I would like Legal staff to let me know if it is an inappropriate question. That's fine, too; I can talk with staff later. Although in the Legislature we did land use laws, I don't deal with them a lot on a one to one basis. Usually I buy a lot that's already there and build a house for someone or build a spec house. If a person applies for a land use action within Community Development, and it goes to a Hearings Officer, and the Hearings Officer makes a decision, and it is either appealed to us or not, can a person make that same application and go through the procedure a second time? Again, I am just talking about in general. Procedurally, was there an adverse opinion that prompted you to come in and ask for the exact setback? LOVLIEN: We were in the process of a landscape management review so he can finish his house. we]" If a landowner came in and applied for a landscape management review, staff would approve or deny it based on their opinion of the setback. Then the applicant would have the ability to accept or appeal the decision, which would go to the Hearings Officer. LOVLIEN: We anticipated that there was going to be an issue raised. This proceeding is available under your Code to seek a declaratory ruling, to interpret prior actions so we can know what to do. Minutes of Public Hearing Page 35 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: If, in fact, Karen didn't say, and staff doesn't know what she meant, and there's nothing in the record, why go through an appeal process to have us make a determination, rather than reapplying through Community Development for that ruling? Why is this the appropriate venue? LOVLIEN: This is the one that I discussed with George Read, and I agree with Paul, it probably wouldn't be granted. But there had been approvals for the conditional use permit for a cluster development; a landscape management plan for the dwelling; and a lawfully created building. This seems to be the appropriate mechanism. CRAGHEAD: In general, it would be our own declaratory ruling, and would be conclusive and binding. LUKE: Is there anything in the Code that allows us to determine if a question wasn't answered, can the party go back and say you didn't ask it? CRAGHEAD: Not on the same question. LOVLIEN: I agree with that. Karen answered what I asked, was the setback less than one hundred and more than twenty-five feet, but now we're asking what the actual setback is. DEWOLF: If she answered the question, how can you appeal? LOVLIEN: She did answer the question I asked, but I didn't ask the right one. CRAGHEAD: We're here on the Tia Lewis decision, not on the Karen Green decision. Minutes of Public Hearing Page 36 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: Tia also made no determination, and the question is the same as the first one. In the hearing before Karen Green, she answered the questions; then a new application went before Tia Lewis, and she determined the same question as Karen Green and denied it, based on the same question. It was appealed to us. Bob feels it is a different question. Before it was whether the setback was between one hundred and twenty-five feet, but now the question is what is the exact setback. LOVLIEN: You have the authority to decide if it's a different question. CRAGHEAD: If there's something in the record that says it was not answered. LOVLIEN: The staff report shows how staff reached forty feet. We concur with that analysis. LUKE: The question in writing-- is that parte of the record? CRAGHEAD: Staff can locate that for you. (The group then took a brief recess) DEWOLF: We're now at the proponents' part. HERB HARTMAN: I live on Sisemore Road, and have lived there since 1974, about one mile away, the next place to the north of them. (He showed the location of his property on the map.) You probably don't remember, but I was here before. The zoning is all wrong. When I saw the document earlier, it seems evident that less than one hundred feet and not less than twenty-five feet was her decision. I'm as confused as anyone else. Does that give the Planning Department the ability to pick whatever they want? DEWOLF: How wide is your lot? Minutes of Public Hearing Page 37 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 HARTMAN: Over three hundred feet, in a F-2 zone. From having read the Planning Department's outlines for property within an F-2 zone, a forest zone, I believe a one hundred -foot setback is meant to protect the forest industry. I was told erroneously that I can produce merchantable timber every year, but there is none to produce. It's too dry. The Bureau of Land Management doesn't care what is done on their land. There are two other cluster developments in that area within a mile or so. They are five -acre parcels off Brandywine Road, and to the south of them. These were broken into two twenties. It becomes a big problem when you have property where the zoning changes. If they want to tear down the building and build a new one, they can't do it. They got it in under the development deadline, but before 1979 there was a five-foot setback. LCDC recognizes that the zone is wrong in some of these areas, around Plainview and Tumalo Reservoir. LUKE: What do you base this on? HARTMAN: I'm basing it on what happened to Mr. Watts. He applied to the State Forestry Department to be able to put in some ponderosa pines, and they told him that they wouldn't grow out there and wouldn't give him any funding. He was able to get his valuation down for forty acres. I went through the same thing. I may be able to sell my property and the buyer could appeal to the Assessor. FANCHER: (At this time, she passed out various Exhibits.) To start out, I'd like to go over where we are in this case. This is the first time you've really heard this matter, so you've had limited involvement. The 2001 declaratory ruling went before Karen Green and she made her decision, which was appealed. It was then withdrawn because the transcript wasn't filed within five days of the hearing. The effect of the withdrawal was that it was final. What does it mean? In this case we have a declaratory ruling case, and the law says that when you have one declaratory ruling on a subject, you can't do it again; it's binding. Minutes of Public Hearing Page 38 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 IRs) X What do you believe Karen Greens' declaratory ruling decision meant? Your interpretation of the sideyard setbacks as stated by Karen Green? FANCHER: That the applicant failed to meet the burden of proof, and made contradictory rulings on this other issue, and went on to answer the question about whether a setback of not less than twenty five feet had been set. She made a clear ruling that no setback was set in this case. Also a setback of not less than one hundred feet was not approved. She made an inconsistent ruling. LUKE: There is now a house there. Someone made a determination to allow a house to be built. A building permit was issued. Someone must have determined minimum setbacks were met. FANCHER: There's nothing in the record that they made a finding on the setbacks. Leigh and William Kuhn ask that you support the decision of both Hearings Officers. The decision is very much tied into, the legal status of the case, but we believe that these decisions were correct. The. law that the County has adopted for rulings requires that you decline to approve the application the second time through, since it's the same question. DEWOLF: Your contention is that the same question was asked, and that therefore it is inappropriate for us to decide, and we have no authority to overturn this. If in fact a different question were asked, you would not be making this argument. FANCHER: It is the same matter, the same subject, and I feel it's not appropriate for it to be before you. DEWOLF: You are saying that even if a different question was asked, but the same conclusion is sought, this is the same thing? FANCHER: There is no provision to ask for a declaratory ruling on the same subject. Minutes of Public Hearing Page 39 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: If I as a lawyer asked the question, is it less than one hundred feet, does that mean that it is twenty-five feet, and the answer is, none of that was established; isn't is reasonable then to say, what is it? You are saying that it is the same question. What they are trying to get at is an exact number. FANCHER: I disagree with his statement of the record. LUKE: Is the written question in the record? FANCHER: It was covered in the questions that were asked the first time. (Paul Blikstad then showed the Board the question that is in the record.) DEWOLF: What about the question before Tia Lewis? If they asked two different questions but were trying to get a determination on the same property, you still feel it's the same question. FANCHER: If I don't get an answer because the question wasn't clear, I am not allowed to ask the question again. DEWOLF: So if they didn't do the appeal process correctly, they aren't allowed to do anything ever again? FANCHER: If they relate to the question in the decision? DEWOLF: So how do you feel they could get some relief here? (Paul Blikstad then provided the Board with the Tia Lewis question.) FANCIER: I'm not their attorney. Minutes of Public Hearing Page 40 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: They are asking two different questions. Is it twenty-five feet? No. What is the setback? This is a different question, don't you agree? FANCHER: The issue is whether it can be less than one hundred and not less than twenty-five. Karen Green said nothing established the setbacks. DEWOLF: A different question would be, what is the setback? You are saying that they are asking the same question in a different way, and this isn't allowed. FANCHER: That is correct. The Associate Planner, Paul Blikstad, acknowledged that this is really the question. That information is provided in the transcript that I provided you with. I just included the parts that are relevant. (She then read portions of the excerpt of the minutes from the hearing of April 2, 2002; Exhibit 6 of these minutes) CRAGHEAD: Let's call this document Exhibit 1. The pile she just gave you, the appeal of the application from September 28, 2001, is Exhibit 4. Exhibit 2 is the letter from Gerald Martin. The June 5, 2002 packet, which includes the letter from Ms. Fancher to the Board, is Exhibit 3. The letter dated August 7, 2001 to Karen Green from Bob Lovlien is Exhibit 5. The excerpt of the partial transcript of the work session of October 29, 2001, is Exhibit 6. The Community Development memo dated May 29, 2002 from Paul Blikstad is Exhibit 7. The e-mail between Paul Blikstad and Chris Schmoyer dated June 13, 2002, is Exhibit 8. The Legal Department letter dated September 6, 2000 to Mr. Martin, as signed by Rick Isham, is Exhibit 9. The Deschutes County staff report dated April 2, 2002, is Exhibit 10. In Exhibit 6, the transcript, on page 3, Mr. Blikstad stated the question of the second hearing, and Mr. Lovlien agreed that's the question. Minutes of Public Hearing Page 41 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: You are saying that he asked the question both times. FANCHER: The Hearing Officer clearly answered the question at the end of her analysis. Tia Lewis asked Mr. Lovlien which decision, and he said it would have been CU -80- 22 (page 6 of Exhibit 6). I I t8i .114 How long is the transcript? Could we get a couple of pages that show the testimony before and after that portion, in order to get the context? FANCHER: It is in the record. Paul has it. I'm just using this to make my point, and so you can decide what the words really mean. In addition, the application indicated that the Hearings Officer answered the question regarding setbacks on the minor partition. This was provided in the burden of proof. Ms. Green found that the question was less than one hundred feet and not more than twenty-five feet. Her decision made it clear that she questioned whether a setback was allowed. The answer was no. DEWOLF: This is frustrating to me. The answers are not specific to the question. FANCHER: Karen Green said the more difficult question was down from one hundred feet. The plot plan drawings show a fifty -foot setback, but also show one hundred and fifty feet on the north property line. Apparently what was approved by the County would not allow you to build. It was clear that Ms. Green knew what the sideyard setback questions were. IRJIJ In your experience, if a person applies for a landscape management plan, they do that because they want to build or do something with their ground. On that, they place a house for future development. Minutes of Public Hearing Page 42 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: The actual location of the dwelling was not shown on the plat. They would have to move the house, and they did. WOW The building was based on the landscape management plan. There was a permit issued. Isn't that in effect a decision by staff of what the sideyard setbacks are? FANCHER: Those need to be a land use decision, in writing, under County Code. LUKE: Is the Code the same? FANCHER: Not then. The question is whether a permit is or isn't a land use issue. The Kuhns believe it is the same question. DEWOLF: It is your contention that Tia agreed with this, that it was already asked and answered. FANCHER: Yes. DEWOLF: It seems reasonable to me that you ought to be able to learn what is required to build. This may be their only avenue to determine that. olI"C I don't believe that it is. The point is, the Code is clear in that the declaratory ruling is final. At this point a decision was made, and when the appeal was withdrawn, the applicant then chose to live with it. LUKE: In your opinion, a decision was made regarding setbacks. FANCHER: She determined none were established, that this wasn't a legitimate question to ask, and nothing in that range had been established. Minutes of Public Hearing Page 43 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: You're not saying that it's inappropriate to find out; you think this process is in conflict with County Code, and that we don't have any authority to revisit it. FANCHER: I'm concerned that a declaratory ruling is not the correct process to clarify this. There is really nothing in CU -80-22 that says anything about setbacks. It's a good question whether you can ask for a declaratory ruling. DEWOLF: Mr. Lovlien is saying that it hasn't been declared, and he is asking us to declare it. You can't look at an old case and decide to do something that wasn't previously done. (At this time Ms. Fancher asked for a brief recess) FANCHER: My client wants me to say that there is a one hundred -foot sideyard setback. LUKE: Your client's position is that there is a one hundred -foot setback. FANCHER: The Hearings Officer said that nothing less than one hundred feet was established. DEWOLF: That it was obvious that it was one hundred feet, but that nothing was established. FANCHER: She has a conflicting statement. They didn't meet the burden of proof. DEWOLF: Taking all into context, it sounds like she said earlier that it is less than one hundred feet but that between one hundred feet and twenty-five feet, nothing had been established. Your contention is that this question was asked and answered. No matter what anyone believes, you contend that we are not to hear regarding setting the setback because we don't have the authority under CU -80-22. LUKE: If the setback is one hundred feet, then the building that's there is in violation of Code. Minutes of Public Hearing Page 44 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: Based on CU -80-22, if they had asked the question based on a Bureau of Land Management decision, would that be something different? Tape 2, Side 1, begins here. Please note that for approximately ten to fifteen minutes previous to this point, there was a problem with the recording equipment switching from tape one to tape two. Therefore, the minutes of this ten to fifteen minute portion are written from notes taken by the Recording Secretary and are not verbatim. FANCHER: I'm just talking about what is before you today. In both cases the applicant and the County were relying on CU -80-22. It is clear in both hearings. The cluster development is the only way he could have reduced the setbacks on the property. Other than a variance, they must follow specific Code requirements and have an alternative setback established. Forest zone F-3 was eliminated and made F-2, and it should have been based on the F-3 zone. In Mr. Blikstad's memo, he indicates the County must have overlooked the setback issue. The report explains the County did not send notice of the declaratory ruling to affected agencies; it says, "Since the issue before the County is virtually the same; that is, what sideyard setback will apply to the subject property as DR -01-5". DEWOLF: That's what this sort of hinges on for me. Even if it is the same issue, if you are asking a different question about that issue, isn't that what we're here to determine? FANCHER: Your Code says you cannot ask for another ruling on the same issue; and the same subject. DEWOLF: Can we get that clarified? CRAGHEAD: You want me to read the language? Paragraph A of 22.40.040 says that the declaratory ruling shall be conclusive on the subject of the ruling of the binding parties thereto as to the determination made. So the subject is conclusive. Minutes of Public Hearing Page 45 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: However, in Paragraph B, it says, "notwithstanding 22.28.040, an acceptance specifically allowed therein, parties to a declaratory ruling shall not be entitled to apply for a declaratory ruling on the same question". The way I read it is that the subject may be conclusive; however, it's the question you can't reapply for. LUKE: Senate Bill 100 was passed to protect farms and forest ground and to have development take place inside an urban growth boundary to make land use easier for people, so they will know what they can do on their property at the time they bought it. FANCHER: Our point is that the ruling that was made by Ms. Green that says no setbacks were set is conclusive on that subject, on whether there are any setbacks set there. So a contrary ruling that a forty -foot setback was established by CU -80-22 is inconsistent with Ms. Green's decision. We believe Ms. Green's decision controls and is binding on the Dowells, so they cannot ask you to do something different.. Ms. Green did very clearly hold that there is nothing in CU -80-22. that establishes minimum sideyard setbacks. She also said that she considered the request for the forty -foot building area, and determined that the applicants hadn't met their burden of proof. She unambiguously found that CU -80-22 simply did not address minimum sideyard setbacks, as stated in paragraph 12. Staff agrees with that, and Mr. Lovlien agrees with that, that there is really nothing in CU -80-22 that establishes setbacks. It wasn't even addressed. Ms. Green looked at two different maps. There are two maps, going back to DR- O 1-05. And if you are going to be looking at whether or not CU -80-22 establishes setbacks, the only evidence in the record that could arguable support such a finding would be maps that were put into the record, apparently by the applicant. The two maps say different things on them; and they have little drawings. At this time, the group referred to the maps in the record. (These maps are not attached to these minutes, but are apart of the record.) Minutes of Public Hearing Page 46 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: Apparently the little blotches or blocks on them were meant as locations where homes might be developed. The issue we talked about in front of Ms. Green was, does that mean you develop where the blotches are, that's where the house has to be; what does that mean? What the County said is it meant that the setbacks were established by the drawings that were submitted. But Ms. Green didn't agree with that. She said that these conflict. She also said that the map you have, the large map, does not establish a forty -foot setback. It essential said or implied that there is no setback established by that map of forty feet to the south boundary. That it would be based upon a scaled measurement of forty feet to the north boundary. (A copy of the property location map of tax lot 16-11-19-00-00100, shown as "Plaintiffs Exhibit A " is attached as Exhibit 14.) LUKE: By looking at the two maps, and the fact that both show proposed homesite locations, the person who developed the property proposed that houses be built on the property. Is this a fair. statement? FANCHER: I don't believe there's any discussion of proposing a house for development. DEWOLF: I don't want to speak for anyone, but I am seeing two things here; both of them say, "house location". FANCHER: Right. They are establishing where a house could be built in the future. LUKE: And I appreciate that. But the fact that there are houses drawn on it, whether in that location or the back of the lot or somewhere else, the reason for the partition would be to construct houses on those lots. A one hundred -foot setback on a two hundred -foot lot clearly does not allow a house to be built on these pieces of property, which is in conflict with the maps, from my standpoint. Minutes of Public Hearing Page 47 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: And that's essentially what the County's reasoning was. From looking at the record of CU -80-22, the applicant didn't file for an approval to build the houses at the time. They just filed for permission to divide the property into lots of a certain shape. The construction of the house is a conditional use permit. Mr. Dowell came in and actually asked for one of those, because the Forest Zone regulations are fairly specific, and there's some from the State. And the County said they wouldn't make him do that because he already had a partition approval for a cluster development, and they didn't think he needed it, and they just went ahead without it. LUKE: Were the setbacks the same in the F-2 and F-3 zones? BLIKSTAD: Yes. FANCHER: Clearly there was a mistake at the time in' drawing up this plan about how to divide the property. There would be the same problem if someone didn't leave room to accommodate the setbacks in a regular subdivision. What Ms. Green said is that she looked at the maps and said, gee, on this one map it is sixty-six feet; on the other one it is forty. And it's forty to the north boundary and not to the Kuhn's property. And I can't tell from this; there just isn't enough evidence, and the applicant just hasn't met their burden of proof. The she determined that nothing in the decision set minimum sideyard setbacks. I think we've more than covered that issue. Thank you for your patience. The County's argument has been that Ms. Green's decision needs to be clarified, and I think it's fairly clear that our question is that the proper means for doing that is through the appeal process of Ms. Green's decision. LUKE: Or changing the Code. If that's possible. FANCHER: Perhaps. Additionally, it says that no setback was established (brief pause). I think I covered something about (unintelligible); I think I'm just going to skip over them. Minutes of Public Hearing Page 48 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: DCC 20.40.010(c) indicates the declaratory ruling shall not be used as a substitute for an appeal in a decision in a land use action, and we believe that this is a substitute for an appeal. That's why the declaratory ruling was filed. It also says in the case of a ruling for a land use action for declaratory ruling, it says that you can't file -- it says "shall not be available until six months after a decision in a land use action is final". So if the applicant is asking you to interpret Ms. Green's decision, they can't do that until six months has passed. And they filed this application prior to six months. Additionally, DCC 22.40.050 prohibits amendment by interpretation. That prevents an applicant from using the declaratory ruling process to change what was decided in CU -80-22, and to add new provisions into the old decision. The 22.40.050 requires an interpretation be made only of language that is ambiguous, either on its face or in its application. And in all declaratory ruling procedures, no ambiguous language has been identified. It's clear from the May 29, 2002 memo from Mr. Blikstad that we discussed earlier, where he indicates that the Board made no findings about the issue about what the setbacks should be for the property. IRJ VY01" You are listing a lot of different technical reasons for supporting your position. Are those in here in writing anywhere? FANCHER: They are in the record. I've raised these before. DEWOLF: Just for myself, I mean, there's the file (indicating a thick file placed on top of one of the tables). Digesting all of that -- if there is a way that you could succinctly put all of these various arguments in place, during the week that we are leaving this record open, it would help me to understand your position. If you would condense all of this into bullet points or number points or whatever, all of your reasons why we shouldn't hear this. If we were to decide to hear it, all the reasons why it is wrong to make a decision other than what you believe is correct. It would help to have that in a succinct form. I understand what you're saying; it's just that there are so many, I can't keep track of them. Minutes of Public Hearing Page 49 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: If we're writing all of them down, then we aren't listening. FANCHER: I'm not sure I will have time to do that, as I have a LUBA brief due in a week, but I will do what I can. LOVLIEN: (Speaking off the microphone) I have no objection to going out two weeks or longer if necessary, if time is needed. DEWOLF: That would be very helpful. Thank you. FANCHER: County staff has argued that this particular Code section doesn't apply, because it applies only to ordinance interpretations; that's their claim. But there isn't any of that; that limitation isn't found in the County Code. We believe that the staffs interpretation would actually amend the Code's prohibition itself, which isn't allowed by the Goose Hall Foothill League versus City of Portland case. 1 (Facing away from the microphone; her comment was unintelligible.) FANCHER: It's 22.40.050, which prohibits amendment by interpretation. An issue that we raised before that I will cover fairly briefly, I hope, is that the County Code requires all land use applicants to come in and file an application and show that they have a legal lot of record before they ask for land use approvals. The County's lot of record ordinance is upheld in Atkins versus Deschutes County in 1990. A recent e-mail from Mr. Blikstad let County planners know that that's real important, and that's the purpose of Exhibit 8. (A copy of this document is attached, as Exhibit 8) In that, you need to do that before you make any decision in a land use case. In this particular case, Mr. Blikstad's findings were that the -- LUKE: Just for the record, it is my understanding that the procedure is to make an application and pay a fee, and the staff does the research for the legal lot of record. Minutes of Public Hearing Page 50 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 W809 Isn't that how that works? The answer is yes, from staff. You indicated that it is up to the applicant to prove it, but they prove it by having staff do the research and paying for that research. FANCHER: It's always the applicant's burden of proof in any land use application. LUKE: And I appreciate that, too. FANCIIER: I would never have my client come in and just file an application with the County and say, figure out what you want to do about a lot of record. LUKE: No, that's not what I said. You can come in before you do an application and actually fill out a different form, pay a fee, and staff will do the research to make a determination if it is a legal lot of record. FANCHER: You can use that process; or you can file an application and the County, before it decides on the application, will decide whether it is a legal lot of record, if that has not already been done. LUKE: And I appreciate that. It is the client's - the applicant's - burden. There are a couple of ways you can do that. So the clients don't have to go out and do the research themselves necessarily. They can fill out the form, pay a fee and staff will do that research for them. If you disagree with staff's determination, of course, you can do it yourself. DEWOLF: Can I ask how much longer you will be? This room is scheduled for use at noon, and we thought this would be done by 11. FANCHER: Five minutes. It depends on how many questions there are. Minutes of Public Hearing Page 51 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: Anyway, obviously it's the County's process that you need to have a legal lot of record or you can't build on your property, and you can't go forward with the land use action. The County's position is in conflict with the evidence in the record. There's a letter from Mr. Isham, which is item number 9. (A copy is attached to these minutes as Exhibit 9) It's in conflict with his reasoning. He found that the four hundred -foot setbacks on the partition plat map were of no legal effect on the parcel. And he determined that because the partition plat map was not recorded; and he believed that because the plat map is not recorded, then the lines that are created on the map are ineffective. So, we're going to ask the County in this case to decide whether the lines on the plat map itself are valid. Because if the plat isn't valid to create lines on the plat map, we don't understand how it can create even the lots in question. So the issue is it necessary to record this document for this to be an effective partition. (She referred to a copy of the approved plat map. A copy was not available to attach to these minutes, but presumably is contained in the record.) DEWOLF: On either lot? Do we have to take down both houses? FANCHER: No, this is an issue related to this particular case, which is currently before you. LUKE: I would like to point out that this has come before us before on no -shooting zones, specifically Sunriver. Because Sunriver was done in sections, there are some plats within Sunriver itself that are not recorded. The determination has been made by our legal staff that since those were not recorded -- if you have a recorded subdivision you only have to get sixty percent of the registered voters within that district before you make application -- but since the plats were not recorded, you have to get one hundred percent. We've dealt with this on some issues. FANCHER: Our question is: if it is illegal, how did those lines can mean anything? You can have a legal lot of record, but what's on the map doesn't mean anything. Minutes of Public Hearing Page 52 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: The Chairman asked how long you are going to be. If both parties don't have an opportunity to finish, we can recess this and come back if there's no time for us to complete it today. Everybody should have the opportunity to finish presenting his or her case. FANCHER: Also, the County's lot of record law requires that all subdivisions and partition requirements in effect on the date the lot or parcel is created must be complied with to be a lot of record. We believe Mr. Isham's letter indicates that all of those laws were not followed for creating this parcel. Then on the merits of the sideyard setbacks in CU -80-22, we believe the law in effect at the time that CU -80-22 was applied required three things to establish a reduced sideyard setback. One was a written recommendation from the planning director for a reduced sideyard setback, and it was required for any property located in the LM zoning district. There is no written recommendation in the record to have a reduced setback. CU -80-22 also must contain an express provision to authorize the reduced setback; and the record must contain a justification from the applicant that supports the application of reduced setbacks. And none of that information was included in the record of CU -80-22. What happened instead is that no one really thought about the issue and no one addressed it; it shows there is no written planning director recommendation in the file. DEWOLF: That's for any of the properties right there. FANCHER: About the setbacks. That's correct. It wasn't discussed -- DEWOLF: So both properties were dealt with equally in 1980. It was ignored for the Kuhn's property as well as the Dowell property. FANCHER: (Speaking to someone in the audience, off the microphone) That's right. Yes it was, in 1980. The one hundred -foot sideyard setback was honored on the Kuhn's property, as they had a lot line adjustment done to address that particular problem. That was required by the County. Minutes of Public Hearing Page 53 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: The original plat that we are talking about, is that the two lots that are configured on the map here? FANCHER: Three lots. The two lots that have the homesites, and the open space lot. LUKE: So the lot line adjustment then took some of the open space and traded it for some of the original platted lot. FANCHER: Yes. They changed the boundaries so that there would be enough room to accommodate the one -hundred foot sideyard setback. They were told that was what applied. LUKE: That was done in what year? FANCHER: 1987. So, the final issue is that the County determined that a forty -foot sideyard setback was established by CU -80-22. We believe that that setback should be limited to the north side yard. If you believe one drawing over another, and you feel that the legal effect of the drawing that is submitted here is to establish where the house will go on the property, first we believe the house should be in the location shown on the plat map, that it only goes in that location; and that it certainly only approves a forty - foot sideyard setback to the north property boundary, not to the south boundary. That there's no reduction on -- LUKE: Is either house in the location that's drawn on the old map? On either pieces of property. DEWOLF: Which map do you pay attention to? FANCIIER: I don't think so. But I don't know. I haven't been out to the property -- Minutes of Public Hearing Page 54 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: They are both drawn in different locations. These two maps. On the one, both houses are closer to the south. And on the other, both houses are closer to the north. So which one do we go by there? FANCHER: That's the problem Ms. Green had. The County took the map that was the most favorable to the applicant and looked at the sideyard setbacks that were the worst and the smallest from the point of view of the neighbor, and applied it to all the setbacks of both side yards. So they took the one map that said forty feet to the north, and so now we're going to apply that to the south. But the map that had the forty -foot setback to the north doesn't have a forty -foot setback to the south. And the other map has a sixty-six foot setback approximately, according to Mr. Blikstad, to the south property boundary. That's it. Thank you. DEWOLF: Okay. Is there anyone else supporting the opponent who wishes to testify? (At this time a brief recess was taken.) LEIGH KUHN: I'm basically addressing some of your questions that were brought up. They aren't really legal issues at all, but just for clarification of some of our motivation and what we did. First of all, the question of a one hundred foot sideyard setback, when we were looking at the purchase, prior to our purchase we went into the County into CDD and said, we're thinking of purchasing this property. We realized there were a lot of overlays and that it is within the Tumalo winter deer range. What do we need to look at, if we want to build a house here, we want to stay within the intent. We think we want to do the right thing, and what is the right thing. Karen Green looked at it, and Denise McGriff, who was a planner at the time, pulled out all the files, and said, well you have a problem here. We've got two lots that are two hundred feet wide, and the sideyard setbacks on them are one hundred feet. Because there is nothing that says it's any less in any of the materials. And if you want to build there, your choices are either to get a variance, a lot line adjustment, or don't buy the property. Minutes of Public Hearing Page 55 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LEIGH KUHN: Those were our three options that we were told. So we decided what should the process be to make it go forward and to stay within the intent of the one hundred - foot sideyard setback was. Karen Green advised us, and she was the assistant legal counsel or whatever at the time, that our easiest and most efficient way to go about it would be the lot line adjustment. Well, as you all probably know, particularly Mr. Luke since he is a builder, that you have to have the agreement if you are buying the property, and it has to be done before the purchase of the property, from the person you are buying it from. And the other affected property owner, in this case Mr. Burchett, had to also agree to the lot line adjustment. DEWOLF: He owned it before Mr. Dowell did? LEIGH KUHN: Correct. So, we went back to (John E. or Jeb) Barton and (Mark) Burchett and said that the County says we need to have a different configuration or it's not a buildable lot. There was obviously a mistake made when these lots were formed.. They didn't look at the fact that there was a hundred -foot setback; it was:,. overlooked. That's what we were told, and that it was not an uncommon problem at the time. So Mr. Burchett signed off on it, the previous owner of the Dowell lot, lot 100, and Mr. Barton signed off on this lot line adjustment. We went to the surveyor and said that we need to do it so that there is no loss of the cumulative number of the 34.8 -acre joint parcel to be fair. So that's why the configuration was done, so that we would be in compliance with the front yard setback, the sideyard setbacks, the rear setback, and within the four hundred feet to the front of the property so that we would be near the road and there would be less disruption to the parcel and the Tumalo winter deer range. DEWOLF: It is your understanding that Burchett never planned to build a house? Minutes of Public Hearing Page 56 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LEIGH KUHN: I don't know what his plans were. He was building a house I believe on Skyliner, and he was just -- you know -- we were talking with him at the time about the possible purchase, that we could possibly purchase it, and keep it as a forty acre parcel since that was the minimum required for the Tumalo winter deer range, and we thought that was appropriate. And he said, I don't know, I'm not really looking to sell it now. But he wasn't going to build a house on it because he was building on Skyliner. When we went through and got the sign off by Burchett and got the sign off by Barton, the owner, and at that point cleared it with the County, and then it became a new lot, so that we could be in compliance. And when Burchett sold the property to the Dowells and the Dowells told us that they were buying the property, we turned over all the information that we had researched. We of course had title insurance and we had them research everything as well, so that we were doing the right thing. We turned all of that information over to the Dowells. And Burchett knew, the seller of the parcel knew, that there was a one hundred -foot sideyard setback problem. Everyone knew, including the County, prior to the landscape management plan that the Dowells. submitted in 1992. So this is the late 1980's we're: talking about. I just wanted to clarify that's why we're saying we believe it's the one hundred -foot setback. And that was our understanding of County Code, where it says that there was nothing in the CU that establishes setbacks, and it's the underlying zone requirement, which is one hundred feet. Which we went to great lengths to try to comply with, because we believe in trying to do that. Thank you. CRAGHEAD: Just one point of clarification. Since I made the opponents number their exhibits, since we have an exhibit submitted by you -- oh well, then, never mind. WILLIAM KUHN: I live at 65575 Sisemore Road. I just have two or three quick things to mention. First of all, in clarification of the concept that Commissioner Luke has brought up I believe at least three times, possibly more; did the purchaser of parcel number 100 know before hand whether or not he was buying a buildable lot. DEWOLF: Would that be the Dowell property? Minutes of Public Hearing Page 57 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 WILLIAM KUHN: That's the Dowell property. We have repeatedly brought to the attention of this Commission, the Hearing Officers, and two civil judges that the Dowells did know that there were problems with this parcel before they bought it. There is no doubt in our minds that they knew that there was a problem. Second of all, it was a condition of purchase that we get a lot line adjustment. And we have been looking for the past I'd say three and one-half years for the County records for our parcel regarding the lot line adjustment. Because back in 1987, when this first issue came up, when this issue first came up, we had gone in and made copies of all of the items that were in our file. And we know that there was a cover letter on our lot line adjustment request. During the past three and one-half years someplace, somehow, that cover letter is now missing from that file. DEWOLF: You don't have it? WILLIAM KUHN: We have a copy someplace. I have not been able to find it. I will search my house diligently to find it during the next week.. There are so many pieces of paper regarding this parcel. You know it; we know it; I will look for it. Also, I am concerned, and I'm not an attorney on this and I don't know whether or not it is a legitimate concern, but it needs to be brought up. Commissioner Luke, again, I'm concerned about your potential bias on this basis, because you have repeatedly said the concept about being able to buy a buildable lot, and whether or not they knew it before hand. If that is a concern to you, I am telling you that they knew before they bought. They knew. One small item in reference to Mr. Hartman's testimony. He said that the hundred - foot setback dealt with forestry issues. One of the items that is listed under forest issues has to do with protecting wildlife. Steven George, from ODF&W (the Oregon Department of Fish and Wildlife) has on numerous occasions, in front of Hearings Officers, said that it is a concern to us as to how many houses, where they are on a development, and all. Whether or not County CDD interprets it one way, I'm telling you that ODF&W looks at one hundred feet and wants that as part of protection for wildlife. Believe me, we understand how much of a headache this is for you, but you can imagine how much it has been for us. Minutes of Public Hearing Page 58 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: Anybody else in opposition? Mr. Lovlien? LOVLIEN: I would just ask that the record be left open for two weeks from tomorrow, and that we be allowed to submit additional evidence. And, especially in light of what has just been said, also submit argument on the points that were raised. DEWOLF: Okay. What we'll shoot for here is that any additional written testimony be submitted to Community Development by 5 p.m. on Friday, September 13th. We're going to close the oral testimony now -- help me if I make any written mistakes here -- and then leave the written record open until September 13th, at 5 p.m. And then, Bob, you'll have an opportunity to respond to -- FANCHER: I don't believe that the statement allows final argument from one side when it's the second hearing. I object to this. LUKE: Only if you raise new arguments. FANCHER: I think what -- DEWOLF: You know what? Here's what I'm going to suggest. What we're doing right now is we are going to establish the dates, and the dates will be September 13 and September 21 at 5 p.m. And then if you've got specific issues, today is Thursday; if you can get those so that Laurie can determine those -- I mean, can you do those today or tomorrow? FANCHER: No, I don't think so. Minutes of Public Hearing Page 59 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: What she is asking is, can we even set the dates. She's saying that if leave the record open for the next two weeks, it has to be for both sides. And she's saying that she doesn't think State statute on the second hearing allows you to then do the additional seven days for rebuttal arguments from the applicant. FANCHER: For just the one side only. I think that only applies to the first hearing. And it is ORS 197.763. I guess Ms. Craghead has a copy of the statute, and maybe we can resolve it. I'm sorry, I wasn't expecting this issue and I didn't look at the statute right before I came. But that's my memory of what it says. CRAGHEAD: Generally the requirement by -- LUKE: Get on the mic. You need to get on the mic. KEVIN HARRISON: I just want to make sure about the dates. You mentioned the 13a'', which is a Friday. And the 21St, which is a Saturday. DEWOLF: I'm sorry. LOVLIEN: I will abide by whatever Legal Counsel says. If we don't get the seven days according to her interpretation, fine. DEWOLF: Or if both get to put in more? And then we'll need seven more days for seven more days of rebuttal after that? FANCHER: No. CRAGHEAD: What she is saying is that we shouldn't allow the seven days of rebuttal. Now, under the statute -- Minutes of Public Hearing Page 60 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 LUKE: May I ask a question? If there are new arguments bought up on the stuff that is submitted on the 13th, I believe you are suggesting that both sides should have an opportunity -- if Mr. Lovlien brought up new arguments and submitted data that he turns in on the 13th -- that you should also have the ability to respond to any new argument that they made. Is that fair? FANCHER: Are you asking if it is a fair process? DEWOLF: No. That's what we're asking you. FANCHER: If that's what you'd like to do. DEWOLF: It's what you want to do. Because what I want to do is go by what my -- FANCIER: My understanding of State law is that if you give the applicant an opportunity to write final argument, that this applies just to the first hearing. CRAGHEAD: It's required of the first hearing. It doesn't say you can't do that for the second hearing. FANCHER: Right. So we believe that it just is not authorized by State law to do it otherwise. It's a process that I believe is just basically unfair and not appropriate unless it's ordered -- LOVLIEN: I don't want this to become a procedural issue. Both sides can have seven additional days of new testimony or arguments submitted; it's fine with me. CRAGHEAD: But not new evidence. Minutes of Public Hearing Page 61 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 FANCHER: Is that not the final argument? Okay. That's fine. DEWOLF: So both sides will have the opportunity to respond for the following seven days, but no new evidence can be submitted during that final seven days. Is that clear? LOVLIEN: Yes. LUKE: Point of clarification. Is it just Mr. Lovlien and the respondents, or can anyone, any member of the community, submit additional written testimony. Or is it restricted to only those who have been here? CRAGHEAD: If you are leaving the written record open for the fourteen days, anyone from the community can submit. However, the additional seven days after that are just for rebuttal from anybody who has submitted evidence during those.fourteen days. DEWOLF: I have one additional issue to raise. That is, since the opponents are questioning Commissioner Luke -- requested he excuse himself -- it seems to me that is one potential issue upon which this could be appealed, should we have Commissioner Daly go through that file, and the transcript of today's hearing, and be prepared to make a decision on this issue so that there are three of us voting. And if he and I end up being on the same side of this issue, whether Dennis hears this or not becomes a moot point. LUKE: And a follow up question; since he wasn't here, therefore there wasn't a challenge issued because he wasn't here; do they then have an opportunity to challenge his ability to hear the case? CRAGHEAD: Yes. So you could do it that way. If you want to -- he could have to listen to all the tapes and hear all the testimony, and then they would have the opportunity to also put in the issue of bias on that. Minutes of Public Hearing Page 62 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: But he'd have to do that within the next fourteen days. Listen to the tapes and all. Because if he is going to do it, they have to be able to put in their objections to his hearing the case within the next fourteen days. DEWOLF: Okay. There are two separate issues in my mind. There again, correct me if I'm wrong. If they have questions about his potential bias, they can do that within the next couple of weeks without him having read through all the transcripts. He wouldn't have to read all the transcripts and listen to all the tapes to have a question about whether he has prejudgment or bias on this situation. That's one issue. When we make a decision on this has not been determined yet. I don't plan on reading everything within the next fourteen days, because I won't have it -- some won't be coming in until the next twenty-one days. And by the time we make a decision he would have had to read everything. But that's separate from the issue of bias and prejudgment. Right? CRAGHEAD: Right. And I'm trying to figure out how we could do the bias and prejudgment on the record, too. LOVLIEN: If he wants to do that, and they want to raise that issue, they can raise that issue at any time as far as I am concerned. Irrespective of when these dates are. CRAGHEAD: The problem is their ability to be able to ask the same questions. DEWOLF: We ought to set up a time now where this specific question gets asked. Do you have similar questions about bias and prejudgment with regard to Commissioner Daly? FANCHER: (Off the microphone.) I don't feel it is an appropriate process. Minutes of Public Hearing Page 63 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 DEWOLF: We have to do that all the time. If in fact he and I split on this issue, he has to do it. So you are potentially creating a split here because of asking him (Commissioner Luke) to excuse himself. If that's a basis for an appeal, LUBA will make him (Commissioner Daly) do this. LUKE: The decision on whether I excuse myself from this has been made. They have a right to appeal that, but I still have a right, since I sat through the hearing, to make a decision both on the merits of the appeal and the arguments on whether we can do this at all. Because I made the decision that I can look at this in an unbiased way. That appeal is possible whether Mr. Daly sits through this or not. DEWOLF: I understand that. This protects the County. I guess what I am asking is, does that protect the County by having Commissioner Daly do this. I'm asking my attorney here. If we have a third Commissioner who would keep that appeal from being -- assuming that there is no bias or prejudgment on Mr. Daly's part -- that that would protect the County in making a decision on this matter. Whereas, if he is forced to excuse himself, we don't. Just tell me, if that's not, I'm fine. CRAGHEAD: I need some time to research on that issue. It is not an uncommon practice for the member who is not here to then listen to the record and then make a decision on it. The issue is when bias has been raised, and how to get those questions asked. Generally those questions aren't asked on issue of bias; they just raise the issue of bias. DEWOLF: That is what I am suggesting. If they've got questions of bias, why couldn't they just put those in writing to Commissioner Daly and he can respond in writing. That could all take place over the next several days. CRAGHEAD: That could be done within the fourteen days, because that would all then be in the record. DEWOLF: I don't know how anyone wants to proceed on that issue, but I thought it was important to raise. Minutes of Public Hearing Page 64 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 CRAGHEAD: If they have questions to ask of Commissioner Daly in writing, he can then put his answers in writing. DEWOLF: I just don't want to get to the point where they appeal based on their feelings about Commissioner Luke, and we didn't have the opportunity for Commissioner Daly to be involved in this process. LUKE: Again, I'm not an attorney either. But if this is appealed based on perceived bias, and whomever they appeal to upholds that, even if there is a third Commissioner involved, the fact that I'm even a part of the hearing could create the cloud. That would be my thought. DEWOLF: Okay. We have now completed the oral public testimony part of this hearing. Being no further testimony offered, the meeting concluded at 12.-15 p.m. DATED this 29th Day of August 2002 for the Deschutes County Board of Commissioners. Tom DeWoJL,-,Chair is R. Luke, Commissioner ATTEST: Michael M. Daly, Commissioner Recording Secretary Minutes of Public Hearing Page 65 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 ATTACHMENTS: Exhibit A: Copy of the Preliminary Statement in Land Use Action Hearings or Appeals before the Board, as Read by the Chairperson (2 pages). Exhibit B: Copy of the Staff Opening Statement (1 page). Exhibit C: Copy of an Excerpt of Minutes of the Deschutes County Board of Commissioners' Meeting of June 5, 2002, provided by William Kuhn (3 pages). Exhibit 1: Copy of an Excerpt of Transcript of the Deschutes County Hearing of April 2, 2002, on File No. DR -02-2, as provided by William Kuhn (3 pages). Exhibit 2: Copy of a Letter dated December 12, 2001, from Gerald A. Martin of Francis & Martin, LLP, to Liz Fancher (2 pages). Exhibit 3: Copy of a Letter dated June 5, 2002, including attachments, from Liz Fancher to the Deschutes County Board of Commissioners (7 pages). Exhibit 4: Copy of an Appeal Application Form dated September 28, 2001, as Completed by Jeffrey and Pat Dowell, plus attachments (5 pages). Exhibit 5: Copy of a Letter dated August 7, 2001, from Robert S. Lovlien, Bryant Lovlien & Jarvis, PC, to Karen Green, Deschutes County Hearings Officer (1 page). Exhibit 6: Copy of an Excerpt.from the Minutes of the Deschutes County Board of Commissioners' Work Session of October 29, 2001, as provided by William Kuhn (6 pages). Exhibit 7: Copy of a Memorandum dated May 29, 2002, from Paul Blikstad to the Deschutes County Board of Commissioners regarding the Appeal of Hearings Officer's Decision on DR -02-2 (2 pages). Exhibit 8: Copy of an E-mail Message dated June 13, 2002, from Paul Blisktad to Community Development Department Staff regarding Legal Lots of Record (1 page). Exhibit 9: Copy of a Letter dated September 6, 2002, from Richard L. Isham, Deschutes County Legal Counsel, to Gerald A. Martin of Francis & Martin, regarding Land Use Issues Raised by William J. and Martha L. Kuhn relating to MP 79-232 and CU -80-22 (3 pages). Exhibit 10: Copy of a Deschutes County Planning Division Staff Report on File No. DR -02-2 relating to a Hearing Held April 2, 2002 (2 pages). Exhibit 11: Copy of an E-mail Message dated December 13, 2001, from Jim Watts to Jeff Dowell (1 page). Exhibit 12: Copy of a Letter dated January 21, 2002, from Robert S. Lovlien of Bryant Lovlien & Jarvis, PC, to Paul Blikstad, Deschutes County Community Development, Requesting a Declaratory Ruling (1 page). Exhibit 13: Copy of a Minor Land Partition Surveyor's Map of the Subject Property (1 page). Exhibit 14: Copy of a Location Map of Tax Lot 16-11-19-00, 00100 (1 page). Minutes of Public Hearing Page 66 of 66 Pages File No. DR -02-2, Regarding Applicable Side Yard Setbacks in an F-2 (Forest Use) Zone. Thursday, August 29, 2002 PRELIMINARY STATEMENT IN LAND USE ACTION HEARINGS OR APPEALS BEFORE THE BOARD I. INTRODUCTION A. This is a de novo hearing and is on the appeal of the Deschutes County Hearings Officer's denial of DR -02-2, a Declaratory Ruling for the applicable side yard setback in the F- 2, Forest Use zone. B. In that application, the applicant requested a determination from the County as to the applicable side yard setback for a specific property. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicant has the burden of proving that he/she is entitled to the land use approval sought. B. The standards applicable to the application Pefore us is-listed-an-tl4e Qva4ieed. tad 1>e&_ ,,�; C. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing, the staff report, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue Page 1 of 2 -Chair's Openning Statement for Land Use Hearings precludes an action for damages in circuit court. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. 1. JrDe Novo Hearing: The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. The staff will give a report. The applicant will then have an opportunity to offer testimony and evidence. Proponents of the appeal will then be given a chance to testify and present evidence. When all other proponents have testified, opponents to the appeal will then be given a chance to testify and present evidence. After both proponents and opponents have testified, the applicant(s) will be allowed to present rebuttal testimony but may not present new evidence. At the Board's discretion, if the applicant(s) presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. EXHIBIT A - Page 1 of 2 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 The Board may limit the time period for presentations. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances For all other hearings: The grant of a continuance or record extension shall be at the discretion of the Board. For all hearings. a. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing or leave the written record open for at least seven days for additional written evidence. b. If at the conclusion of the hearing the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to Page 2 of 2 -Chair's Openning Statement for Land Use Hearings submit final written arguments but no new evidence in support of the application. V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) EXHIBIT A - Page 2 of 2 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 Before the Board today is an appeal of the Hearings Officer's decision on a declaratory ruling (DR -02-2), for determining what side setbacks are applicable to the property identified as 16-11- 19, tax lot 100, with an assigned address of 65595 Sisemore Road. This application went before the Hearings Officer at a public hearing on April 2, 2002. The written record was left open for 3 weeks. The Hearings Officer's decision was issued and mailed on May 7, 2002. The Hearings Officer denied the applicant's request based on her finding that the issue before her had already been decided by Karen Green through application no. DR -01-5, and she found she could not revisit the issue based on Section 22.40.040 of Title 22 of the County Code, which states under subsection A: "A declaratory ruling shall be conclusive on the subject of the ruling and bind the parties thereto as to the determination made." The applicant's burden of proof statement for the original declaratory ruling request included the following statement: "It is obvious that with the imposition of a 100 -foot side yard setback, that Parcel 1 would be unbuildable. However, the issue is whether or not CU -80-22 approved a setback of less than 100 feet for a side yard setback pursuant to Section 18.128. Applicant is requesting a declaratory ruling that CU -80-22 did provide for a setback of not less than 25 feet from the side yard. This would be consistent with the approval for the cluster development as evidenced by MP -79-232." Karen issued the decision which stated as its conclusion: "Based upon the foregoing findings of fact and conclusions of law, the Hearings Officer hereby declares that the decision in CU -80-22 did approved side yard setbacks on the subject property less than 100 feet, but did not approve side yard setbacks of not less than 25 feet." Staff was not exactly sure what that decision meant and believes the applicant was equally confused. Karen Green's decision was appealed and the Board agreed to hear it. However, because the written transcript of the hearing before the Hearings Officer was not submitted, the Board hearing was canceled. The applicant subsequently on the same day withdrew the application. The applicant then reapplied for a declaratory ruling through the present application. In the burden of proof the applicant clearly stated: "What is the side yard setback for Parcel 1 of MP -79- 232?" Staff believes that the Hearings Officer in DR -01-5 did not determine what the applicable setbacks would be for the subject property, but instead determined that something less than 100 feet was approved through the Conditional Use Cluster Development, but did not get to what standard would apply. The applicant in this instance is asking for what standard would be applied to the further development of the subject property. Staff believes the two requests are in effect different requests. In order for the Board to overturn the Hearings Officer's decision as requested, the Board would need to find that the decision in CU -80-22 approved setbacks less than 100 feet and that a specific setback can be applied to the property. Staff notes that in 1980 the cluster development standards were new to the County and the setback issue was not adequately addressed in the decision. Staff has previously recommended that a side setback standard of 40 feet be applied to the property, based on the history of land use on this site. The applicant has by letter from Bob Lovien waived the 150 -day review period EXHIBIT B - Page 1 of 1 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JUNE 59 2002 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Mike Maier, County Administrator; George Read, Steve Jorgensen, Paul Blikstad, and Christy Morgan, Community Development; George Kolb, Road Department; Sue Brewster and Lt. Mike Johnston, Sheriff's Office; Rick Isham and Laurie Craghead, Legal Counsel; Media Representatives Leah McLean of Z-21 TV, Jeff Mullins of KBND Radio, and Barney Lerten of bend. com; and twenty citizens. Chair Tom De Wolf opened the meeting at 10: 00 a. m. 7 Before the Board was Consideration of a Decision Whether to Hear an Appeal of the County Hearings Officer's Decision on DR -02-2 (Dowell Property), a Declaratory Ruling on the Side Yard Setback Standard in the Forest Use Zone. BLIKSTAD: You have a decision this morning whether you want to hear an appeal on file DR -02-2 (the Dowell appeal). You have a request from the applicant's attorney not only to hear it, but also to hear it de novo. There is plenty of time left in the 150 days to hear it if you choose to do so. DEWOLF: We received some information from Laurie on Monday, but if our decision is to be based strictly on the record, we can't consider the letter from the attorney. CRAGHEAD: Minutes of Board of Commissioners' Meeting >, 2002 Page I of 16 Pages EXHIBIT C - Page 1 of 3 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 Correct. DALY: On Monday, we couldn't figure out what we can do. CRAGHEAD: According to County Code, all you can consider is whether the notice of appeal complies with our Code, staff recommendations, the Hearings Officer's decision, and the existing record. LUKE: I have a question. Have we ever accepted notices of appeal that weren't entirely on the County form? BLIKSTAI3: We require the form to be filled out. The signature is what is the problem. DALY: I think we need to hear it. CRAGHEAD: The argument I brought up should not have been voiced to you, as you can't consider it. It is a matter you can determine if you decide to hear it. It might limit what you can do. LUKE: I think there is a difference between this one and the first time it was submitted. LUKE: I move we hear this appeal. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. LEE KUHN (Citizen): Based on your decision to hear it, I'd like to submit some information for the Board's decision, based on Constitutional issues. CRAGHEAD: Minutes of Board of Commissio Page 2 of 16 Pages EXHIBIT C - Page 2 of3 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 Wednesday, June 5, 2002 It should be submitted when the hearing date is set for the hearing. At this time, Ms. Kuhn presented a packet of information to Chair DeWolf, which he then passed on to Paul Blikstad. DEWOLF: We should set this for a late afternoon time instead of at a regular meeting. Minutes of Board of Com Page 3 of 16 Pages EXHIBIT C - Page 3 of 3 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 Wednesday, June 5, 2002 CASCADE COURT REPORTERS, IA (541) 385-5664 L EXHIBIT 1 - Page 1 of 3 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 and they are all in that round accordion file, the most recent of which was the previous Declaratory Ruling which the county Hearings Officer ruled on. Unfortunately, the decision from our standpoint doesn't clarify anything and doesn't -- in our opinion doesn't help with the resolution of this matter. That was appealed, but the appeal wasn't perfected, so the applicant has reapplied. We think this application is different because -- and that that issue has been brought up by the opponent on this, that the applicant is not allowed to apply for the same thing twice, a Declaratory Ruling twice. We think that the Hearings Officer probably correctly decided the issue on the previous matter because that's what was asked for and it wasn't -- it wasn't clear, I guess, in the applicant's burden of proof what exactly that he was applying for. Under this application we think it is clear that he is asking for the county to decide what was the appropriate setbacks approved under CU -80-22, the conditional use permit for the cluster development. So we have recommended approval of a side yard setback less than 100 feet based on five reasons, and those are listed on page seven of the staff report. I CASCADE COURT REPORTERS, IN ( 5 4 1) 385-56-64 EXHIBIT 1 -Page 2 of 3 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29 a I 1 parcels, each of which were 200 feet wide, and then a 2 34.4 acre common remainder parcel, so there are only 3 two homesites but three parcels on this approximately 4 40 -acre piece of property. 5 Obviously a 200 -foot wide parcel as approved 6 could not accommodate a 100 -foot side yard setback. I 7 mean just physically it doesn't happen. 8 However, the ordinance did allow side yard 9 setbacks to be reduced to 25 feet in a cluster 10 development, so I -- you know, I think just in summary 11 the applicant agrees with the analysis that's set out 12 in the staff report in establishing a minimum side yard 13 setback of 40 feet based on what was in the record at 14 the time and what was approved at the time. 15 So we would I think leave it at that unless 16 you have any questions. 17 HEARINGS OFFICER: You might have said this 18 and I might have missed it and I apologize, but which 19 decision is it that you are saying approved a specific 20 setback? 21 MR. LOVLIEN: It would have been CU -80-22. 22 Excuse me. 23 HEARINGS OFFICER: Okay. So it's the 24 applicant's position that this conditional use decision 25 actually approved a side yard setback of -- CASCADE COURT REPORTERS, Ir (541) 385-5664 EXHIBIT 1 - Page 3of3 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 C. E. "Win" Francis Gerald A. Martin Liz Fancher 25 NW Minnesota Avenue Bend, OR 97701 FRANCIS & MARTIN, LLP Attorneys at Law 1199 NW Wall Street Bend, Oregon 97701-1934 (541) 389-5010 December 12, 2001 Re: Kuhn v Dowty ll Deschutes County Circuit Court Case No. 01 -CV -0233 -MA Our File No. 01-037 Dear Liz: LaPine Office (541) 536-3731 Facsimile (541) 382-7068 HAND -DELIVERED The purpose of this letter is to disclose a meeting, which I attended on August 9, 2000 with my clients Bill and Leigh Kuhn. They scheduled a meeting with Commissioner Dennis Luke and asked that I attend. We arrived at the County offices and after waiting a few minutes Commissioner Luke appeared accompanied by George Read. At that time, either George Read or Dennis Luke made the comment that they were not aware the Kuhns' attorney was going to be accompanying them. We proceeded to a conference room and George Read produced a diagram showing the Dowells' property and the Kuhns' property. The primary issue at that time was whether the Dowells' structure on their property was in violation of the 400 -foot maximum setback from Sisemore Road. The diagram had a line on it from the side or corner of the Dowell home across the side of their property diagonally to Sisemore Road showing that by measuring in such a manner the structure was within the 400 -foot setback. The Kuhns questioned why that measure was appropriate rather than measuring from the structure to the front of the Dowells' property where it abutted Sisemore Road. George Read stated that was a proper way to measure the 400 -foot maximum setback and Commissioner Luke nodded his head affirming that statement. At the time of that meeting I had had little or no prior contact with Commissioner Luke or George Read. I was surprised by what seemed to be an adversarial or confrontational approach taken by both Commissioner Luke and George Read. I had anticipated a meeting with some exchange and discussion regarding the appropriate measurement for the 400 -foot maximum EXHIBIT 2 - Page 1 of 2 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 Liz Fancher December 12, 2001 Page Two setback. Instead the meeting was quite short with George Read simply indicating that this is the way we measure it and Dennis Luke concurring. That meeting was the first occasion when anyone had suggested the diagonal measurement to Sisemore Road. The documents submitted to the County by the Dowells when they were seeking approval for the structure on their property showed the usual measurements from Sisemore Road at the front of their lot straight back and parallel with the sides of their lot. If I can offer you any further information, please contact me. VeMtruly yours, A. Martin cc: William and Leigh Kuhn EXHIBIT 2 - Page 2 of 2 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 LIZ FANCYFIR, Arro2NE)/ June 5, 2002 BOARD OF COUNTY COMMISSIONERS DESCHUTES COUNTY 1130 NW HARRIMAN BEND, OREGON 97701 Re: DR -02-2/Z-02-7, Appeal filed by Jeffrey and Pat Dowell I am writing this letter to request that you consider the attached legal and factual arguments when making your decision whether to hear the appeal filed by Jeffrey and Pat Dowell. I am also submitting the attached documents for inclusion in the record of the above -matter. Please place the documents in the record even if you decide that you will not consider the documents at today's Commission meeting. These records document the County's legal position that my clients' arguments whether to hear the appeal will not be considered by the Board before it makes its decision whether to hear the appeal. It is our legal position that DCC 22.32.035(D) is not legal and should not be followed by the Board. The County rule grants one party the right to participate in the appeal decision, by presenting arguments regarding the reasons to grant review, while prohibiting the other from participation on that issue. This unequal treatment denies my clients, Leigh and William Kuhn, any voice in a decision that will have a significant financial and legal impact on them. The continued consideration of this case by the County raises the possibility that the 150 -day clock will lapse and change the burden of proof in this proceeding from the Dowells to the Kuhns. A decision to hear the appeal also requires my clients to spend funds to defend the Hearings Officer's decision at the appeal hearing. Thank you for your anticipated assistance in making our concerns a matter of a record in this case. Cc: file C/ L. Craghead Clients Sincerely, Liz Fancher 644 NW BROADWAY STREET BEND, ORF PHONE: 541-385-3067 FAX: 541-38 4j EXHIBIT 3 - Page 1 of 7 jt 3 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 r LIZ FANCHEIR, Arr0,-/ZNEY May 30, 2002 LAURIE CRAGHEAD DESCHUTES COUNTY OFFICE OF LEGAL COUNSEL ADMINISTRATION BUILDING 1130 NW HARRIMAN AVENUE BEND, OREGON 97701 Re: DR -02-2/A-02-7, Jeffrey and Pat Dowell, Appeal of Decision by Deschutes County Hearings Officer Tia Lewis Denying Application Bob Lovlien has filed an appeal of Hearings Officer Tia Lewis' decision in DR -02-2, a declaratory ruling application filed by Jeff and Pat Dowell. Ms. Lewis found that this application presented the same issue addressed and resolved by the County in DR -01-5 and, based on the clear language of the County code, could not be considered a second time. I am writing for three reasons. First, I am writing to advise the County that my clients are parties and to request notice of all County meetings and hearings regarding the appeal. Second, I am writing to advise you that the status of the 150 -day clock may become an issue in this case. Third, I am writing to state my clients' position regarding review of the appeal by the Board and to ask, DCC 22.32.035 notwithstanding, that the Board consider my clients' legal arguments in deciding whether to hear the Dowell's appeal. Party Status/Request for Notice My clients participated in the hearing held by Tia Lewis. They, therefore, are parties. My clients agree with Ms. Lewis's decision that the Dowells are not entitled to seek a second declaratory ruling on the side yard setback issue. As a result, they did not appeal the decision. My clients hereby request that the County provide them with mailed notice of all meetings or hearings. f also ask that notice be sent to me, as well. Please also provide us with copies of any written materials that are filed of record with the County in DR -02-2/A-02-7 on or after May 20, 2002, other than the Notice of Appeal. EXHIBIT 3 - Page 2 of 7 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 ( f" — 2 — lune 5, 2002 ISO -Day Clock/Bearing on the [tecord I am writing to advise you that the Dowells have not agreed to toll the running of the 150 -day clock of ORS 215.427. DCC 22.32.027 directs the Board of County Commissioners to consider the status of the 150 -day clock when deciding whether to hear the appeal de novo or on the record. My clients' legal position in this matter will be prejudiced if the County fails to resolve this matter promptly, it is my clients' position that this matter should, if heard, be heard on the record and limited to issues specified in the notice of appeal. The applicant relied on the record of DR -01-5 in DR -02- 2 and did not introduce any new evidence other than evidence about the decision in DR -01-5. As a result, there is no reason to allow a de novo hearing. A hearing on the record is also needed to minimize the chance the County will exceed the 150 -day clock of ORS 215.427. Reasons Board Should Decline Review 1. The issues raised in this case are, primarily, legal issues. Two of the County's professional land use hearings officers have properly addressed and resolved the legal issues for the County in favor of the Kuhns. The Board should not disturb those decisions. Both hearings officers are lawyers and fully qualified to address the legal issues in a fair and impartial manner. Additionally, any alleged errors in the hearings officer's decision may be fairly and correctly resolved by the Land Use Board of Appeals. 2. The declaratory ruling process does not give the County the legal ability to create a special, reduced setback for property where no reduced setback was established in the first place. Declaratory rulings are available to inte ret, not change decisions. DCC 22.40.010(B). 3. It has been conclusively determined by Hearings Officer Karen Green that the 1980 cluster development approval did not establish any setbacks for the Dowell property. This determination is final and bars consideration of whether a setback of 40' was established by the 1980 approval. DCC 22.40.040. 4. 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. 5. The appeal does not involve any matter of significant public policy. 6. The Board does not have jurisdiction to hear the appeal. The Notice of Appeal does not meet the requirements of DCC 22.32.015 and 22.32.020. Any failure to comply with DCC 22.32.015 or 22.32.020 constitutes a jurisdictional defect. DCC 22.32.022. EXHIBIT 3 - Page 3 of 7 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 C -3- C, lune 5, 2002 A. The appellants failed to file a completed notice of appeal on a County form, as required by DCC 22.32.015(A). The form requires, bill docs not contain, the signature of the appellants. B. The Notice of Appeal requests, de novo review but fails to state a reason why the Board should hear the appeal de novo rather than on the record. DCC 22.32.020(C) requires this information. The notice of appeal says "it is appropriate for the Commission to interpret its ordinances" but this is a reason to accept review, not a reason to hear the matter de novo rather than on the record. Please include this letter in the record of the above -referenced land use matter. Please do so, to preserve my client's legal rights on these issues, even if you determine that the Board may not consider the letter when deciding to hear the appeal. Thank you for your anticipated cooperation. Please do not hesitate to call me if you wish to discuss this matter. Eric. Cc: R. Lovlicn P. Blikstad client file Sincerely, Liz Fane ier 644 NW BIt0A1)W 1' S'l'Rl Ii -I, BF'N1), 0 I EG0 PI10NF.: 541-395-3067 FAX: 541-385-3( EXHIBIT 3- Page 4of7 Minutes of Continued Hearing Re: Dowell Appeal #DR -02-2, 8/29/02 Liz Fancher From: "Liz Fancher" <liz@lizfancher.com> To: "Laurie Craghead" <Laurie_Craghead@co.deschutes.or.us> Sent: Monday, June 03, 2002 8:28 PM Subject: Re: DECISION Whether to Hear an Appeal of the County Hearings Officer's Decision on DR -02-2 Thank you Laurie. Liz ---- Original Message --- From: Laurie CLaghead To: 'Liz Fancher'; 'William John.Kuhn' Cc: Paul Blikstad Sent: Monday, June 03, 2002 8:09 PM Subject: RE: DECISION Whether to Hear an Appeal of the County Hearings Officer's Decision on DR -02-2 Given the code provisions, I won't be sharing this with the Commissioners unless they decide to hear the appeal. Then, it will be the first thing I bring up at the hearing. As for the timing issue, as you can see, I'm forwarding this to Paul. Laurie Craghead .?assistant LegaCCounseC Deschutes County (541) 388-6593 -----Original Message ----- From: Liz Fancher [mailto:liz@lizfancher.com] Sent: Monday, June 03, 2002 4:30 PM To: Laurie Craghead; 'William John Kuhn' Subject: Re: DECISION Whether to Hear an Appeal of the County Hearings Officer's Decision on DR -02- 2 Laurie, The material sent to you by Bill is in the record. The County procedures ordinance allows the Board to refer to any material in the record in making its decision whether to hear the Dowell's appeal. As I have said before, I believe that DCC22.32.035(D) is illegal and should not be followed by County staff. It provides one, but not the other, party the right to be heard (via the Notice of Appeal). This is fundamentally unfair, denies my clients equal protection of the law and due process, rights protected by the 14th Amendment of the US Constitution and, in part, by the Oregon Constitution. Please add this e- mail to the record of the appeal even if you elect not to share it with the Board until after it has decided whether to hear the appeal. If you determine that this will not be included in the record, please advise me of that fact so that I may submit the information at the appeal hearing, if and when it is held. I have many hearings, a Circuit Court trial (I'm a witness) and a vacation set in June and July. If would be very helpful if Paul were able to work with me and Bob Lovlien to select a hearing date from a list of potential appeal dates. Any courtesy you can extend in setting the appeal would be greatly appreciated. EXHIBIT 3 - Page 5 of 7 Minutes of Continued Hearing, 8/29/02 6/5/02 Re: Dowell Appeal #DR -02-2 . ubv a vl J V Liz Fancher Attorney for William and Leigh Kuhn ---- Original Message From: Laurie_ Craghead To: 'William. John._Kulin' Cc: Liz Fancher Email) Sent: Monday, June 03, 2002 3:25 PM Subject: RE: DECISION Whether to Hear an Appeal of the County Hearings Officer's Decision on DR - 02 -2 Bill: I understand your sending this to me because the your inability to discuss issues with the Board at this point. I'm not, however, the one to decide this issue. Thus, if the Board decides to hear this, I recommend you present this at that time. Just so you _know, I will be recommending to the Board that they cannot consider anything I said about the jurisdictional defects when deciding whether or not to hear this but, if they decide to hear this, those are issue that can be raised by you or Liz at the time of the hearing. It was a mistake for me.to bring it up today and should have left it for a discussion at the hearing. Laurie Craghead .Assistant LegaCCounseC Deschutes County (541) 388-6593 -----Original Message ----- From: William John Kuhn [mailto:William@RiskFactor.com] Sent: Monday, June 03, 2002 2:21 PM To: DesCo Legal - Craghead Laurie Subject: DECISION Whether to Hear an Appeal of the County Hearings Officer's Decision on DR -02-2 Good Afternoon Ms. Craghead, Regarding the "DECISION whether to hear an Appeal on DR -02-2" scheduled for Wednesday morning at 10am. We thought it wise to bring to your attention that the problem regarding side yard setbacks for this cluster development is not a new one. N O It originally came up when we were considering purchasing our parcel in 1987. C,.y 00 N o q4 Both Denise McGriff, CDD planner and Karen Green, legal council for U A Deschutes County and member of my volleyball team in the Spring of 1987 saw a the problem and advised either not buying, getting a lot line adjustment, or ,r, ¢ obtaining a variance prior to purchase to make the parcel legally buildable. Uo After listening to the Board of Commissioners at their work session this morning x ° �C/ we though you might be interested in the attached letter from Ms. McGriff to B 6/5/02 Karen Green, hearings officer for the DR -01-5, since you may have overlooked it with so many papers in the file. A lot line adjustment is a solution that worked once for this very problem and yet no one has approached us about obtaining one. Sincerely, William Kuhn 65575 Sisemore Road EXHIBIT 3 - Page 7 of 7 Minutes of Continued Hearing, 8/29/02 6/$/02 Re: Dowell Appeal #DR -02-2 DESCHUTES COUNTY PLANNING DIVISION 1130 NAV Harriman Street, Bend OR 97701 (511)388-6575 APPEAL APPLICATION FORM DATE SUBMITTED: September 28, 2001 FEE: _$1. ,106 , 00 APPELLANT: Jeffrey and Pat Dowell PHONE: ( 541 ) 382--4331 c/o Robert S. Lovlien MAILING ADDRESS. P.O. Box 1151 CITY: Bend ST: OR ZIP: 97709 LAND USE APPLICATION BEING APPEALED: DR -01--5 PROPERTY DESCRIPTION: T 16 R 11 S 20 TAX LOT: 100, 200 $ 300 APPELLANT'S SIGNATURE4G�� DATE. Mark G. Reinecke for robert S. Lovlien 09/28/01 IT IS THE RESPONSIBILITY OF THE APPLICANT (APPELLANT) TO COMPLETE A NOTICE OF APPEAL AS SET FORTH IN CHAPTER 22.32 OF THE COUNTY CODE, "APPEALS." EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal; 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower Hearings Body's; 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board stating the reasons the Board should provide de novo review as provided in Section 22.32.030 of Title 22. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. EXCEPT AS PROVIDED IN'SECTION 22.32.040, APPELLANTS SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED FROM, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5,00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANTS SHALL SUBMIT TO THE PLANNING DIVISION THE TRANSCRIPT NO LATER THAN THE CLOSE OF THE DAY 5 DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, IN ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. EXHIBIT 4 - Page 1 of 5 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 L 13EFORE THE DESCHUTES COUNTY COMMISSION FILE NO.: APPLICANTS/ PROPERTY OWNERS/ APPELLANTS: ATTORNEY FOR APPELLANTS: ATTORNEY FOR OPPOSITION: REQUEST: STAFF CONTACT: HEARING DATE: RECORD CLOSED: DECISION MAILED: NOTICE OF APPEAL, DR -01-5 JEFFREY and PAT DOWELL 10705 NE 38TH AVE. VANCOUVER, WA 98686 ROBERT S. LOVLIEN BRYANT, LOVLIEN & JARVIS, P.C. P.O. BOX 1151 BEND, OR 97709 LIZ FANCHER 644 NW BROADWAY BEND, OR 97701 The Applicants are seeking a declaratory ruling to establish the minimum side setbacks for a parcel zoned F-2, WA and LM. Paul Blikstad, Associate Planner July 10, 2001 August 7, 2001 September 17, 2001 Appellants hereby appeal the above -entitled Decision of the Hearings Officer dated September 17, 2001. A copy of said Decision is attached hereto as Exhibit "A". Appellants further state as follows: 1. Specific Reasons for the Appeal. Applicants/Appellants, Jeff and Patty Dowell, are appealing the Decision of the Notice of Appeal - Page I (RSL:DOWELL.025) EXHIBIT 4 - Page 2 of 5 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 BRYANT, LOVLIEN & )ARMS, 11C A11URNEYS A'I I.Aw, f.57A BUS111!I) 1415 40 NW Greenw(.)d PO Box 1151 Bend, Oregon 47709-1151 (541) 382-4331 tax (541) 389-3386 www.bryantlovlienjarvis.rom 24 SW Fifth Suet( PO Box 650 Madras, Oregon 97741 (541) 475-2757 fax (541) 475-2962 .3 C.. Deschutes County Hearings Officer dated September 17, 2001 and mailed September- 17, 2001. Applicants were seeking a declaratory ruling to establish the minimum side setbacks for a parcel zoned Ir -2, WA and LM. The procedural history in this matter is somewhat convoluted, following the County's adoption of a new zoning ordinance (PL -15). The Applicants' predecessor in title submitted an application for a conditional use permit for a cluster development (CU -80-22) and an amended partition application to propose three parcels. The three parcels were to consist of two 4.3 -acre parcels, which were to be 200 feet wide by approximately 900 feet long, and one 34.4 -acre parcel designated as "common area". Applicants Dowell subsequently submitted an application for LM site plan approval for a dwelling. By a Decision dated March 10, 1992, the County approved the LM application for a single-family dwelling (LM -92-9). The Applicants subsequently constructed approximately 1,000 square feet of the approved dwelling, consisting of a 424 square foot dwelling and a 576 square foot garage. Since the property is zoned F-2, and since the property adjacent to the property has been deemed to be forest land, there is a minimum side yard setback of 100 feet. This would render the subject property unbuildable. However, former Section 8.050.016(D)(a) of the Deschutes County Code did authorize cluster developments with reduced setbacks through language identical to the current Code provision at Section 18.128.200, as follows: "(a) Setbacks and height limitations shall be prescribed in the zone in which the development is proposed, unless adequate justification for reduction is provided the hearings body, but in no case shall the setbacks be less than 25 feet or the height greater than 40 feet." Notice of Apnea! - Page 2 EXHIBIT 4 - Page 3 of 5 (RSLDOWELL.025) Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 BRYANT, LOVLIEN & JARVIS, PC AnoRNEYS 1FfJ 40 NW Greenwaxl PO Box 1151 Bend, Oregon 97709-1151 (541) 382-4331fax S5 24 SW fifth Sir,,K)Box 650 Madras, Oregon 97741 (541) 475-27578ffax 35041) 475-2962an11uvlienjarviscurn J Based on this dilema, Applicants did seek a declaratory ruling to establish what the minimum side yard setbacks were based upon CU -80-22, which was the original cluster development approval decision. In her Decision, the Hearings Officer did fund that the cluster development approval in CU -80-22 did approve side yard setbacks of less than 100 feet for the subject property. However, the Hearings Officer also found from the record that there was not sufficient evidence from which she could find that the cluster development approval in CU -80-22 approved side ywd setbacks for the subject property of not less than 25 feet, which would be authorized under the current ordinance set forth above. The Decision of the Hearings Officer reads as follows: "Based upon the foregoing findings of fact and conclusions of law, the Hearings Officer hereby DECLARES that the Decision in CU -80-22 did approve side yard setbacks on the subject property less than 100 feet, but did not approve side yard setbacks of not less than 25 feet." Applicants/Appellants are still left with their original dilema. They do not know what the approved side yard setbacks are for the subject property, even though the County approved a conditional use permit for a cluster development and approved a partition which created the subject property. As stated above, the property is only 200 feet wide, and at the time of the approval, was surrounded by property zoned forest use. Appellants position is that they are entitled to a declaratory ruling which would establish the minimum side yard setbacks based upon the conditional use permit for the cluster development, CU -80-22, and the approved partition which created the subject property. Notice of Apnea/ - Page 3 EXHIBIT 4 - Page 4 of 5 (RSL:DOWGLL.025) Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 BRYANT, LOVUEN & JARVIS, PC AT10KNGYS AlIAW, ESTABL151JE1U 1415 41) NW GrLwnwoal PO Hux 1151 Hend, Oregon 977(F)-1151 (541) 382-4331 fax (541) 389-3386 www.bryanlluvlienjarvis.com 24 SW Pith Street PO Hux 650 Madras, Oregon 97741 (541) 475-2757 fax (541) 475-2962 Only the Board of Commissioners can now slake that determination for the Applicants/Appellants. 2. Reasons the Board of Commissioners Should Review this Matter. Applicants/ Appellants are therefore requesting that this Board accept this appeal and determine what the minimum side yard setbacks should be for the subject parcel. Without such a determination, the Applicants cannot proceed with what the County recognizes as their right to build a residence on their property. 3. De Novo Review. Applicants hereby request a de novo review of this matter for the following reasons: Applicants would contend that it is important for the County Commission to hear this appeal, because it is appropriate for the Commission to interpret its ordinances. DATED this 28th day of September, 2001. Notice of Appeal - Page 4 (RSL:DOWELL,025) BRYANT, LOVLIEN & JARVIS, P.C. By: ROBERT S. LOVL N, OSB #74197 Of Attorneys for Appellants EXHIBIT 4 - Page 5 of 5 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 BRYANT, LOVUEN & JARVIS, PC A'I'IOINM- AT LAW. tSTANLLSIME) 1915 40 NW Greenwood PO (lox 1151 Bend, Oregon 97709-1151 (541) 382-4331 fax(541)389-3386 www.bryantlovlietijarvis.coni 24 5W Fifth Street PO Box 650 Madras, Oregon 97741 (541)475-2757 fax(541)475-2962 541 985 1764 C Des, Co. CDD Neil R Bryan( Roben S. Lovlien August 7, 2001 Lynn F Jarvis John A. Berge NAND DEL FRED Sharon R. Smith Lisa N. Bertalan KAREN GREEN, HEARINGS OFFICER John D. Sortie C/O DESCHUTES COUNTY COMMUNITY Mark G. Reinecke DEVELOPMENT DEPT. Melissa P. Lande 117 NW LAFA'YETTE AVE. Kiri C. Ford BEND, OR 97701 Steven M. Kutzer Lane D. Lyons, LLM. Re: Applicant: 40 N.W. Greenwood File Na.: Mail: P.O. Box 1151 Request: Bend, Oregon 97709 Phone: (541) 382-4331 F7 x; (541) 389-3386 Dear Ms. Green: Jeff and Pat Dowell DR -01-S Declaratory Ruling r, kecek v�ej b Y RecuO l t 0n www.bryamlovbcnjmAs.com This letter is being submitted in response to Mr, and Mrs. Kuhns' letters to you of July 26 and July 27, 2001. Obviously, there is a lot of bad blood between these neighbors. The letters contain material that is not germane to the issue at hand. The Applicants are simply trying to establish a sideyard setback based on approval of a cluster development 20 years ago that could never have accommodated a 100 - foot sideyard setback. A lot line adjustment is not practicable, and even if it were, would require the cooperation of Mr. and Mrs. Kuhn. A variance should not be necessary. The Applicants simply ask the Hearings Officer to address the issue raised, based upon the criteria that was available at the time of the original approvals. Very truly yours, ROBERT S. LOVLIEN / RSL/alk cc: Mr. and Mrs. Jeff Dowell Liz Fancher (RSL:UOWELL.021) EXHIBIT 5 - Page 1 of 1 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 @10 0 2 TRANSCRIPTION OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, OCTOBER 29, 2001 By William Kuhn from audiotape received from Deschutes County DEWOLF: Um, 13, Paul (Blikstad)1 ... LUKE: Damian (Syrnyk)'s been bad so you made him stay? DEWOLF: No, he's been good. BLIKSTAD: These are for reference. Good morning. BLIKSTAD: Good morning, Paul Blikstad, Planning Division. The Planning Division has received an appeal of the County Hearings officer's decision on DR -01-5 a declaratory ruling to determine what side yard setback should apply to an approximately 4.3 acre parcel. This parcel has kind of unique history. I think I have got - over on the memo um — it's originally applied for as a partition. The first partition was denied by planning division then they reapplied ... basically for the same thing and they were told by the planning division no you can't do this either it's the same thing as you applied for before. LUKE: That ... that would be you guys? BLIKSTAD: No this was in 1979. LUKE: Oh. LUKE: So they... LUKE: George (Read) was here then. Material in body of transcript shown in italics was added by Mr. Kuhn for purposes of clarity. A:\ transcribeFromTapeMinOfworkSession.doc 08/27/2002 9:3 EXHIBIT 6 - Page I of 6 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 E1� `_ BLIKSTAD: So they back tracked held off on the partition a lied for conditional use permit for a cluster development and then went forward with both applications.... And they were both approved with two small parcels and a remainder big parcel. The two small parcels were two hundred feet wide.... And, ... at that time there was a hundred foot side yard setback. DEWOLF: That's a really skinny house then BLIKSTAD: I'm sorry. DEWOLF: That would make for a really skinny house. BLIKSTAD: Yes, A non-existent skinny house. DALY or probably LUKE: Is that from both sides? BLIKSTAD: Yes. So that would ... LUKE: Can't be done. DALY: Ha Ha Can't. LUKE: So what if you turned the house and then it becomes the front yard? BLIKSTAD: Unfortunately the front yard is defined by the road and LUKE: I see. BLIKSTAD: ... that's up front. So, ... just briefly both parcels now have dwellings on them... the two smaller ones. What's in question is the northerly one the red here on the map. We issued a landscape management approval in March of 1992 at that time for a 1568 sq. ft. home and the plot plan that we received for that application showed a 50 foot set back from the South property line. That structure was built, it wasn't built to the 1568 sq. ft. but it was built, it's approximately 1000 sq. ft. But the applicants have now applied, and I'm not sure of the total reason for this, other than maybe they want to add on to the house. Ah, they have applied for a declaratory ruling with us as to what the appropriate side set back should be. So we —went - -N- 08/27!2002 9:35 AM EXHIBIT 6 - Page 2 of 6 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 back researched it. I ... spent quit a bit of time looking through this, and there were no, no findings in the conditional use and partition from (19)79 and (19)80 as to what the set backs should be. There was even no discussion in the landscape management permit approval that talked about setbacks. So I had nothing to go on, in all honesty when I took this to the hearings officer. We had recommended that she set a standard. She didn't feel comfortable doing that based on the applicant's burden of proof.... I've got to give his exact wording. "The applicant is requesting a declaratory ruling that CU -80- 22 did provide a set of not less than 25 ft. from the side yard. This would be consistent with the approval for cluster development as evidenced by MP - 79 -232." ... Um, I suppose that could have been written somewhat more clearly in that he was asking for a specific setback but he just said nothing less than 25 ft.... So, as I've indicated in my memo Karen (Green)'s decision said, ... "Based upon the forgoing findings of fact and conclusions of law the hearings officer hereby declares that the decisions in CU -80-22 did approve side yard setbacks on the subject property less than 100 ft. but, did not approve side yard setbacks of not less than 25 feet. We're not sure what that exactly means. I received calls after the decision went out from the applicant and other parties saying what does this mean and I couldn't exactly tell them. So what were asking you is — it would probably be a good idea to hear this. DEWOLF: Can't we just set a setback of 25ft. and save everybody a bunch of time and money? (several voices at once.) BLIKSTAD: You would have to do that. DEWOLF: But do we have to have a hearing? And have them pay for a hearing can't we just like wave a wand and be done? LUKE: If their attorney had done a better job would this ever be to us? BLIKSTAD: I don't ... I don't have ... LUKE: He didn't get that. Oh he got that.... Ha, Ha A: VranscribeFromTapeMinOfWorkSession.doc 08/27/2002 9:35 AM EXHIBIT 6 - Page 3 of 6 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 BLIKSTAD: You've received a letter from one of the opponents ... well actually ... LUKE: No we didn't because that letter was sent illegally and therefore we did not receive it, so therefore, it's not part of the record. BLIDSTAD: OK LUKE: Because we couldn't read it.... Ha, Ha, Ha, Ha, Ha.... That's what our attorney told me. I couldn't read it. DEWOLF: There are opponents to this Paul? BLIKSTAD: Yes LUKE: Oh ya, ... Your buddy. DEWOLF: Who? (This refers to William Kuhn) LUKE: Tell him. CRAGHEAD: All, this is Laurie Craghead, as legal council, the opponents in this are William and Leigh Kuhn represented by attorney, ... DEWOLF: Ohh, . . CRAGHEAD: ... Liz Fancher and the letter that was sent to you ... LUKE: That we didn't receive. CRAGHEAD: You may have received it, but it was a matter of its something you cannot consider as part of the deliberation of whether or not to hear it under our county code, otherwise it would have to be a full noticed hearing, kind of thing. However, she did also send an additional letter that requested, ... that outlined some jurisdictional defects and to dismiss an appeal ... and I, ah, in order to make a decision on those I think you would need to have a hearing so I ah, I would recommend, um, after talking with staff this morning that there ... there ... you accept a hearing just if nothing else — to decide those jurisdictional issues that she raised in her letter. EXHIBIT 6 - Page 4 of 6 A:Vranscribeprom7'apeMinOfworkSession.doc 0827/2002 9:35 AM Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 LUKE: When I think about it they can't contact you personally because of the hearing — so they won't be able to call you or send you an email. DEWOLF: That's fine. Where is this in connection to their home? Is this the white house? This is the white house next door to the Kuhn's ... that was partially finished? With the ladder up to the roof? LUKE: And the dogs — the dogs would come visit once in a while? DEWOLF: (softly) God. OK. LUKE: I'd move to hear it. DEWOLF: Let's pick a date. LUKE: Do you want de novo or what do you want? BLIKSTAD: Can they do that today, Laurie? Can they decide that today? DEWOLF: At some time — can they do that? Can they decide that today? CRAGHEAD: Decide the hearing date? They should decide it. BLIKSTAD: decide to hear it today or ... do they have to wait until Wednesday? DEWOLF: No we can do whatever we want ... and we're in a bad mood now so ... LUKE: Ha Ha Ha You want it? you want it?... CRAGHEAD: Well, what was noticed today was just consideration whether or not to hear the ... LUKE: Well we can't take testimony anyway except for staff. EXHIBIT 6 - Page 5 of 6 A:ltranscribeFromTapeMinOfWorkSession.doc 08/27/2002 9:35 AM Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 V DEWOLF: All we're doing is deciding to hear it ... CRAGHEAD: Well um there's just discussion on whether to hear an appeal I would think that on Wednesday you would actually do the decision on what to appeal and what date to pick for a hearing. DEWOLF: There is a publicly noticed meeting. LUKE: And then nobody can testify before us on this except for staff and staff is here so what... DEWOLF: And staffs recommendation is that we hear it do novo so we'll accept staff s recommendation and hear it de novo. BLIKSTAD: So we'll prepare an order to that effect. DEWOLF: And find a date that works with Bonnie and we'll ... LUKE: There's no time limit on this? BLIKSTAD: That brought up in the letter by the opponents and I've talked to Mr. Lovlien and he'll ... he's stated he'll waive whatever he needs to waive. DEWOLF: So we'll just find a date. Mike ... my guess is we should probably not do this at a regularly scheduled meeting — but find a late afternoon. DALY or probably LUKE: Yeah. DEWOLF: Is that Ok Bob? Does that work for you Liz? Tape ran out. There may have been a few more things said but we don't have them on our copy of the tape. EXHIBIT 6 - Page 6 of 6 A:VranscribeFromTapeM inO (WorkSession.doc 08/27/2002 9:35 AM Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 1,3;UJ FAX 541 385 Des. Co. CDD 16002 Community Development Department Planning Division • Building Safety Division • Environmental Health Division 117 NW Lafayette Avenue - Bend, Oregon - 97701.1925 (541) 388-6575 - FAX (541) 385-1764 htLp://www,co.deschutes.or.us/cdd/ MEMORANDUM DATE: May 29, 2002 TO: Board of County Commissioners FROM: Paul Bliksted, Assoclate Planner RE: Appeal of Hearings Officer's decision on DR -02-2 Jeffrey and Pat Dowell, through their attorney Robert S. Loviien, applied for a declaratory ruling to determine what side yard setback standard should apply to their approximately 4.3 -acre parcel located In an F-2, Forest Use Zone. This Is the second application by Dowell's on this matter. The first was DR -01-5 (see history below), with a decision Issued by the Hearings, Officer. The Hearings Officer's decision on DR -01-5 was appealed to the Board and the Board determined it would hear the appeal. However, the applicant did not submit the required written transcript of the hearing before the Hearings Officer 6 days before the Board's scheduled hearing. Consequently, the Board hearing on that appeal was canceled. The applicant reapplied for a declaratory ruling and was denied by the Hearing Officer based on her call that the issue had already been decided in the previous declaratory ruling application. Background: The applicant's 4.3 -acre parcel was created by a partition (MP -79-69) and conditional use (CU -80-22) for a duster development in what was at that time an F-3 zone. The subject property is also In a winter deer range (Wildlife Area combining zone). See Staffs findings on the land use history on pages 2-3 of our staff report. The conditional use and partition approvals allowed two approximately 4.3 -acre parcels to be created out of a larger approx. 43+ - acre parcel, leaving an approx. 34 -acre common open space (unbuildabie) parcel. The partition approved two 4.3 -acre parcels that were 200 feet wide. At the time these parcels were approved, the zoning ordinance, as It does today, required a 100 -foot side yard setback for side yards adjacent to forest lands. Using logic as above, no structures could be constructed on a 200 -foot wide parcel if there Is a 100 -foot side yard setback on each side. The duster development standards from.1979-80 stated the following: "Setbacks and height limitations shall be as prescribed In the zone In which the development is proposed unless adequate Justlflcatlon for reduction Is provided the hearings body, but In no case shall the setbacks be less than 25 feet or the height greater than 40 feet " No findings were made in the decision on either the partition or conditional use permit with respect to what the setbacks should be. The only reference that staff could find to setbacks was EXHIBIT 7 - Page 1 of 2 Quality Services Performed with Pride Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 Vnn 091 465 1764 Des. Co. CDD elf- 003 1 a notation on the partition plat of a 400 -foot maximum building setback from Sisemore Road. This was related to the fact that the parcel was In the winter deer range. As Indicated In our staff report, planning review under (he *new" zoning ordinance adopted In November of 1979 was In, its Infancy, and the setback issue apprently was overlooked. The applicants applied for and received approval of a Landscape Management Permit to construct a dwelling on the subject property In March of 1992. The approval was for a 1,568 square foot dwelling showing a 50 -foot setback from the south property line. The applicants have now applied for a second declaratory ruling for a determination as to what the minimum side setbacks for their property should be. The Hearings Officer's decision on DR - 02 -2 states on page 6 the following: 'Because the question the applicant are (sic) asking In the present action was dedded by the Hearings Officer In DR -01-5, It cannot be answered again In this action. For this reason, the Hearings Officer finds that the request does not meet this criterion and, therefore, must be denied.' The Board has the discretion as to whether or not to hear the appeal, and If you decide to hear it, whether.to bear it on the record or de novo. This one presents a difficult situation for the Board. It had decided to hear the appeal on DR -01-5, but could not hear the appeal because of the failure of the applicant to submit the written transcript. Before the Board now is the second declaratory ruling. In order for the Board to overturn the Hearings Officer's decision, you would have to determine that what the applicant's applied for the second time Is not what was applied for the first time. It Is staffs belief.that the applicant clarified what was actually being requested In the second application, If It was not totally dear In the first application. if this Is an Identical request, then the County Procedures Ordinance does not allow the County to revisit the Issue. If you would like to review any portion of the file on record, or if you should have any questions, feel free to contact me at your convenience (6554). The Board will be making a decision on whether it will hear the appeal. I have scheduled the matter for discussion on Monday June 3rd, with a. decision on whether to hear the appeal on Wednesday June 5"'. I have attached for your review the following: Applicant's original burden of proof D Applicant's notice of appeal, which includes a copy of the Hearings Officer's decision Vicinity map showing the subject property D staff report EXHIBIT 7 - Page 2 of 2 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 Chris Schmoyer From: Paul Blikstad Sent: Thursday, June 13, 2002 3:18 PM To: _CDD Current Planners Subject: Eegal Lot Planners: I received a call today about a lot line adjustment for a property. The owner was inquiring about whether he could obtain a portion of his neighbor's property. I was familiar with the property adjacent to him. It was at one time a 20 -acre parcel that was approved for a financial segregation with Planning. The purpose of the Fin. Seg is to allow an owner to obtain a loan on less acreage than he has (some lenders won't lend on anything over say 5 acnes). A financial segregation agreement DOES NOT create a legal parcel_ Anyway, after having told him I didn't think he could do a lot line adjustment, I researched our records. Somehow we approved a lot line adjustment for his financially segregated tax lots and then on top of that issued a conditional use permit for a nonfarm dwelling, all on an illegal parcel. So not only did he buy the farm, we gave him the golden goose also. Folks, when an application comes across your desk, the most important question is, is this tax lot a legal lot of record. In the case of his neighbor's property - NO IT WASN'Tf! As a side note on the lot line adjustment - the tentative drawing appeared to include an additional tax lot to the south that was not listed on the application, so I'm not sure how the ownership was ever resolved with this other tax lot. I'm glad I didn't work on it. Not meaning to nag. This one bugged me, because I'm sure the guy is thinking how stupid we are or alternatively how lucky he was. We didn't do our homework. EXHIBIT 8 - Page 1 of 1 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 September 6, 2000 Gerald A.in Francis art 1199 Wall Street Bev&, OR 97701 I Department ADMINISTRATION BUILDING , 1130 NW HARRIMAN, SEND,IMILE REG -383 97701 Richard L. Isham Ar 541-388-6625 Bruce W. White fir 541-388-8593 Mark P. Amberg fi• 541-330-4645 PLEASE REFER TO FILE NO.: Re: Land Use Issues Raised by William J. and Martha L. Kuhn Relating to MP 79-232 and CU 80-22 George Read, Deschutes County Development Department Director, met with me regarding issues that have been raised by your clients, William J. and Martha L. Kuhn. After thorough review of the records and discussion with Mr. Read, it is my opinion that there is no basis upon which to initiate any type of action with respect to either of the properties developed pursuant to CU 80-22. The land use decisions do not make the 400 -foot setback a condition of approval. The only suggestion of a 400 -foot setback was made by the developer as a means of addressing issues raised by Oregon Department of Fish and Wildlife. Since the 400 -foot setback is not a condition of approval, it is not a basis of initiating a code violation proceeding. Additionally, the partition plat map is not recorded. Consequently, the 400 -foot line on the unrecorded plat map has no effect on the use of the parcel. The use of the parcel is limited to the conditions of approval under the partition approval and conditional use permit, supplemented by any restrictive covenants placed on the property by the developer. Alternatively, if there was some basis for imposing the 400 -foot setback on the lots, I believe that there is a valid question as to whether the lot line adjustment had the effect of relieving the Kuhn residence from the requirement of being more than 400 feet from the portion of Sizemore Road abutting the lot as initially configured. A drawing in the record shows that the Kuhn residence of showingthan 400 feet from te original the400-foot setbackh I did not find portion Sizemore any evidence ein Road used for the purpose g the record that the setback requirement in CU 80-22 was modified by reason of the lot line adjustment. Conversely, if the lot line adjustment allows the Kuhn residence to recalculated set from a new ou d°beoused fororanRoad, the usesd appear allowed byat the the cluster portion of Sizemore Road development. As indicated above, my advice to the Board of County Commissioners is to take no further action with respect to the issues raised by your client. The Deschutes County Code Quality Services Performed with Pride EXHIBIT 9 - Page 1 of 3 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 _ Gerald A. Martin (440 ( ` September 6, 2000 Page 2 declares any violation of its zoning ordinance a nuisance. There is some precedence in this county for individuals proceeding in a private nuisance action to abate nuisances based on the zoning ordinance. At this time, it does not appear that the County will initiate any abatement action with respect to development on Mr. and Mrs. Kuhn's property or the neighbor's property to the north. ere chard L. Isham L gal Counsel RLI:eln C: Board of County Commissioners George Read, Director of Community Development EXHIBIT 9 - Page 2 of 3 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 i ! r � � nC) L W � `� -n 1 z F = w w }z �wF.b CL W o Q. ^ Q cr _)Z �• > � J W � hN� a U) I,i 0 :h Q ,0 c� a aj h 3 A � 0 p� h � �b �M IVa Q Ob,p =p °'ON �Vv qAb eNa lm 0 0 A J a J . x� ,r CL Q cr)� 0 U w — R w co Or W w W L'J F- CO C) O n W W W W J w W L1J U _ i-- F- O Z Z }- g :_w j w O Z) U U cc ®®DD w F -- a 3 cc �_ Q� D Z �Z ° u� � > P� �• > � J W � hN� J a J . x� ,r CL Q cr)� 0 U w — R w co Or W w W L'J F- CO C) O n W W W W J w W L1J U _ i-- F- O Z Z }- g :_w j w O Z) U U cc ®®DD w F -- a 3 coq a c a 4 a c cc �_ Q� D Z �Z ° u� � > �• > � J W � hN� � 3� 0 :h Q ,0 c� a aj h 3 A � 0 p� h � �b �M coq a c a 4 a c EXHIBIT 9 - Page 3 of 3 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 cc �_ Q� D Z �Z ° u� � > �• > � J W � hN� 1�••OG C�-ter of V1 ae c� a aj EXHIBIT 9 - Page 3 of 3 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 DESCHUTES COUNTY PLANNING DIVISION STAFF REPORT FILE NUMBER: DR -02-2 HEARING DATE: Tuesday, April 2, 2002 7:00 P.M. Deschutes County Commission Hearings Room 1130 NW Harriman Bend, OR 97701 APPLICANT/ Jeffrey and Pat Dowell PROPERTY OWNER: 10705 NE 38th Avenue Vancouver, WA 98686 ATTORNEY: Robert S. Lovlien Bryant, Loviien & Jarvis Post Office Box 1151 Bend, OR 97709 �y16111879-2o N;„ .Malt 2aa2 IVIAII ED �" DES COUNV r tib`' 6 s�£ Z t. — v£oti REQUEST: An application for a Declaratory Ruling to determine the side setback standard for a dwelling on property in the Forest Use (F- 2) zone. STAFF CONTACT: Paul Blikstad, Associate Planner I. APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, County Zoning Ordinance Chapter 18.40, Forest Use (F-2) zone 18.40.100, Yards and setbacks Title 22 of the Deschutes County Code, Development Procedures Chapter 22.40, Declaratory Ruling 22.40.010, Availability of declaratory ruling 22.40.020, Persons who may apply 22.40.030, Procedures 22.40.040, Effect of declaratory ruling II. BASIC FINDINGS: DR -02-2 Page 1 EXHIBIT 10 - Page 1 of 2 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 Staff requests that all materials submitted in the previous declaratory ruling file (DR -01-5) be incorporated by reference into DR -02-2 and made a part of the record in this matter. H. PUBLIC AGENCY COMMENTS: The Planning Division did not send notice of the proposed declaratory ruling to affected agencies, since the issue before the County is virtually the same (i.e. what side yard setback will apply to the subject property) as DR - 01 -5. The responses of the public agencies under DR -01-5 are incorporated by reference herein and are listed as follows: County Property Address Coordinator: The address of record for this property is 65595 Sisemore Road. 2. County Environmental Health: Dwelling constructed. Septic permit (S 33904) fiinaled 6-15-93. 3. Bend Fire Department: The Department submitted a response which includes several items checked for standards and the following: To assist our emergency responders to located this property and to help them to work safely during an emergency incident, the following should be provided. • A visible address number from the street fronting the property. • Adequate emergency vehicle accesses. Access roads should be within 150 feet of all exterior walls of any building to be protected. Access roads including bridges shall support the maximum fire vehicle weight of 25 tons. Roads should have a uniform surface and a horizontal clearance of 20 feet and a vertical clearance of 14 feet. Roads should never exceed a 12 percent grade unless approved otherwise by the fire department. Dead-end roads over 150 in length shall have an approved method to turn around emergency vehicles. • For the purpose of deploying ground ladders for rescue and fire fighting operations. Any residence window opening or roof eave should not exceed 30 feet from the ground. The ground surface should be reasonably level within 10 feet of the exterior wall. • Buildings and structures that are interfaced with the forest or dense growth of natural vegetation should have a minimum 30 -foot zone around the structures that is free of dense vegetation. 4. The County Assessor, County Building Division and County Road Department had no comments. 5. No response was received from Central Electric Cooperative, Pacific Power and Light, US West Communications, Oregon Department of Fish and Wildlife, Bureau of Land Management or the US Forest Service. III. CONCLUSIONARY FINDINGS: CHAPTER 22.40 OF TITLE 22, DECLARATORY RULING 22.40.010, Availability of declaratory ruling. DR -02-2 Page 4 EXHIBIT 10 - Page 2 of 2 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 -- From: Matts82750aoi.com Page 1 of i AT&T message wOridner Center service E-mail _Cili - Member Services GetE-mail�MessageList lcomposel fChoosefoider _11 1Address Book �Mailboxes �OQtiotts1HelpiLogout� Logged In as: jtdowell Message: 30 of 36 Mailbox: jtdowell on AT&T Broadband Internet Folder: INBOX Read Message' �P Y..� .k ete a .. � � From: JWatts8275@aol.com [ Save_address j To: jtdowetl@attbi,com Subject: Re: Results of Nearing Date: Thu, 13 Dec 2001 01:22:19 EST Jeff, I'm glad things worked out well for you. I would consider that a victory! I was going through some of my property files today and got to thinking about all of the Bullshit our beloved Mr. Kuhn has put us through. ( not to mention all the time, energy and expense it has cost us) Think about it. If not for him you could have already finished your home over there by now and I would be well on my way with either building a home or having the property sold. I guess the reality of all the aggravation and frustration he has caused'us finally sunk in. We have never done anything to him, either before or since, that would justify his treating us this way. He has initiated every damn bit Of it without cause. why? How can one man carry around so much hate and contempt for his fellow man? And why in the fuck are we putting up with it? Jim Get E-mail I Message Ust I Compose I Address Book I Mailboxes I Options i Printable View Help I F"d.back I Logout I ATd,T Wadoliet Horne Terms and Conditions. AT&T Online Privacy Policy. AT&T WorldNet i49S &_7J7_Prsvacy. Po41cy. Copyright 2001. AT&T. All Rights Reserved, EXHIBIT 11 - Page 1 of 1 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 http://commcenter.attbi.cOnVwmc/v/wm?cmd=Show&no=7&uid=i 074&sid=c0 1/7/2002 wwwbryaatlovliaorvismm Please call me if you have any questions. Very truly yours, 4K60 14v� ROBERT S. LOVLIEN RSL/alk Encl. cc: Mr, and Mrs. Jeffrey Dowell (w/ enclosures) (RSL:DOWELL.032) M:\DATA\RSL\CLIENTS\D\Dowell.032.Ltr to Planning EXHIBIT 12 - Page 1 of 1 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 RECEIVED >a A,BY. 4- JAN2 2 2002 IDELIVEREb BY: L Neil R. Bryant Robert S. Lovtien January 21, 2002 Lynn F. Jarvis John A. Berge . Sharon R. Smith DESCHUTES COUNTY COMMUNITY John D. Sortie DEVELOPMENT DEPT. Mark G. R Lande ATTN: PAUL BLUCSTAD P. . Melissa Lande Kitri C. Ford117 NW LAFAYETTE AVE. Lane D. Lyons, LL.M. BEND, OR 97701 Jennifer A. Allen Re: Applicants: Jeff and Patty Dowell Request: Declaratory Ruling BEND Property at: Map 16-11-19, Tax Lot 100 40 N.W. Greenwood .... - Mail: P.O. Box 1151 Dear Paul: Bend, Oregon 97709 Phone: (541) 382-4331 Enclosed please find an Application and Burden of Proof Statement for a Declaratory Fax: (541) 389-33% Ruling for Jeff and Patty Dowell to establish the minimum sideyard setbacks for Parcel l of MP -79-232. Also enclosed is our check in the sum of $500.00 for your filing fee. MADRAS 24 S.W. Fifth Street Prior to accepting this Application for filing, I would appreciate it if you could Mail: P.O. Box 650 review with legal counsel the question that was asked. I want to make sure that the Madras, Oregon 97741 question is asked in a broad enough q gh manner that we can finally get a determination as Phone: (541) 475-2757 to what the sideyard setback will be. Fax: (541) 475-2962 wwwbryaatlovliaorvismm Please call me if you have any questions. Very truly yours, 4K60 14v� ROBERT S. LOVLIEN RSL/alk Encl. cc: Mr, and Mrs. Jeffrey Dowell (w/ enclosures) (RSL:DOWELL.032) M:\DATA\RSL\CLIENTS\D\Dowell.032.Ltr to Planning EXHIBIT 12 - Page 1 of 1 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 7 C� I} �.< f2 z Q J LLI J W i Q � > cr ~ W }— � � z W U < rL w-- o w U) U U cn x w �q a r H C/) CC :J cl: :D w g cf) LJ Li C) 0 q iY LG ®®DD A LL, C:) r �a� F— ^ F=b w > w ? ti a z LLI J W i Q � > cr ~ W }— � � z W U < rL w-- o w U) U U cn 76-8 M �a C, OL 4 C a x w a W V _ H C/) CC :J cl: :D w g cf) LJ Li C) :j iY LG ®®DD 76-8 M �a C, OL 4 C a ` W 0,� T'�r iY LG �a� ti CD EXHIBIT I 0 Mn I t 4 I�� a Ih� e IOp b I�V I I � 4 e� EXHIBIT 13 - Page J of 1 Minutes of Continued Hearing, 8/29/02 Re: Dowell Appeal #DR -02-2 ME EXHIBIT 14 - Page 1 of'. Minutes of Continued Hearing, 8/2 Re: Dowell Appeal #DR -02-2 / Location Map - Taxlot 16-11-19-00-00100 PC �7r., In - [EB ' - -|---'- - ` All