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2002-1266-Minutes for Meeting October 09,2002 Recorded 10/24/2002COUNTY OFFICIAL MARYHSUE SPENHOLLOW, COUNTYRCLERKS COMMISSIONERS' JOURNAL 10/24/2002 02;16:46 PM 1111111111111111111111111111111 20020012667 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 - www.deschutes.org MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, OCTOBER 9, 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; Anna Johnson, Susan Ross and David Givans, Commissioners' Office; Ricklsham and Laurie Craghead, Legal Counsel; Tom Blust and George Kolb, Road Department; Layne Hood, Family Violence Prevention Coordinator; Tammy Credicott, Property Management; George Read, Kevin Harrison and Paul Blikstad, Community Development; no media representatives; and nine citizens. Chair Tom De Wolf opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. Chair DeWolf introduced Anna Johnson, the County's new Communications Coordinator, to the audience. Nothing else was offered. 2. Before the Board was a Presentation Updating the Board of the Current Status of the Boys & Girls Clubs. Kirk Utzinger, the new President of the Boys & Girls Clubs, introduced himself and explained what the Clubs are doing. There are now nine Clubs in the communities in the three counties of Crook, Deschutes and Jefferson, and they are looking at sustainability to the programs. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 1 of 42 Pages A lot of children still aren't being served, and their goal is to accomplish this. They are very clear in their efforts to reach children in local communities to help guide them in the proper direction. There are some very strong challenges in the community, and they want to be available to help and to work closely with local government agencies and other non -profits to make the biggest impact possible in the lives of the children. He said they are now asking for the community's help with technology, as this is the one weak point, linking between the nine sites. They are one of few groups of Boys & Girls Clubs in the country that work together as a regional entity. Commissioner Luke said they've done really well, and that the success of the regional organization is used a lot as a talking point with other groups. The local Club has shown that with a central board, and each community with a separate board, all working together, can do an exceptional job. Mr. Utzinger added that they are also working with incarcerated youth to bring them back into the community. He gave one example of a recent graduate of the program who had experienced a tough upbringing; this young person spent eight years with the Boys & Girls Club, and was recently awarded a four-year college scholarship. At this time, Commissioner Luke agreed to provide lottery grant funding to help integrate the technology between the local Clubs. 3. Before the Board was the Reading of a Proclamation, Declaring the Month of October Family Violence Awareness Month in Deschutes County. Layne Hood read the Proclamation to the audience. LUKE: So moved. DEWOLF: Second VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Commissioner Luke commended the work that is being done in this regard. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 2 of 42 Pages 4. Before the Board was the Reading of a Proclamation, Declaring October 25 Work to End Family Violence Day in Deschutes County. Layne Hood read the Proclamation to the audience. LUKE: So moved. DEWOLF: Second VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Mr. Hood then introduced a representative of COBRA (Central Oregon Battering and Rape Alliance), who brought a scroll for signatures; the scroll signifies the victories of nearly four hundred people who actually got out of a bad situation and stayed at the shelter last year. 5. Before the Board was a Public Hearing on the Proposed Vacation of a Portion of Huntington Ranch Road; and Consideration of Signature of Order No. 2002-114, Approving the Vacation. George Kolb explained that this is the portion within the new Pronghorn Resort; it is a connector, and would revert back to the County if it is not completed as agreed. Laurie Craghead said she has contacted the applicant's attorney, and they are fine with this. Chair De Wolf then opened the public hearing. Being no testimony offered, Chair De Wolf then closed the public hearing. LUKE: Move signature of Order No. 2002-114. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 6. Before the Board was a Public Hearing, and Consideration of Signature of Order No. 2002-091, Approving the Vacation of a Portion of "A" Avenue, Terrebonne. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 3 of 42 Pages George Kolb indicated that this issue was discussed by the Board a long time ago. This is the one where the applicant agreed to provide access to another resident of the area. Chair De Wolf then opened the public hearing. Being no testimony offered, Chair De Wolf then closed the public hearing. LUKE: Move signature of Order No. 2002-091. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 7. Before the Board was a Decision (from a Hearing held on September 11) and Consideration of Signature of Order No. 2002-100, regarding the Vacation of a Portion of 18th Street, 19th Street, and Central Avenue, Terrebonne. George Kolb explained.that at the recent public hearing, the Board extended time to make a decision. Commissioner Luke did a site visit, as there had been a discussion about not vacating a portion of 19th Street. Commissioner Luke said it was very informative to do the tour. Roads are shown on the map, but on the ground it's difficult to even pick out where the roads would be. It seems to him that Central Avenue goes along a fence line at the north portion of the Ridgeway property, and the road rights of way may be a little wider than necessary. The applicant didn't want to move the fence any further than necessary. The person who had objected is farming the entire right of way. Commissioner Luke explained that while walking the different pieces, it was clear to him that C Avenue is not the way to come in, as it drops off very steeply in one area. He said his tendency is to vote to approve this vacation, with the stipulation that the fence isn't moved any further onto the Ridgeway property than necessary to accommodate the road and a safety area. If they would agree to do this, he said he feels the request is reasonable. Commissioner Luke said he wanted to again put on the record that the owner of the property, Mr. Ridgeway, is related to Commissioner Luke's wife. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 4 of 42 Pages Commissioner Daly asked if this would be a county road when completed. George Kolb replied yes, that it would be a twenty -foot wide paved road, with a seventy-foot right-of-way on Central. Commissioner Luke asked if it was proper procedure for Commissioner Daly to bring up a question, since Commissioner Daly wasn't present for the hearing. Laurie Craghead replied that it's okay if it is already in the record. Commissioner Daly added that he did read the record. Ms. Craghead stated that his discussions with staff are not considered ex parte; he just couldn't bring any new evidence into the record. He can vote in this instance. DEWOLF: I move approval of Order No. 2002-100. LUKE: I second, with the condition I explained earlier. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. George Kolb added that before the road is actually built, there would be a land use action, and the condition Commissioner Luke mentioned would go into that. 8. Before the Board was Consideration of Signature of Grant Award Contract No. 02-24, between Deschutes County and the Central Oregon Community Investment Board (Administered through COIC), Allowing the County Road Department to Perform Preliminary Stormwater Management Analysis in the La Pine Community. Steve Jorgensen stated that this has been approved by COCIB (Central Oregon Community Investment Board), with changes to the contract per Legal's advice; and it's ready to go. LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 5 of 42 Pages 9. Before the Board was Consideration of Chair Signature of a Contract between Deschutes County and Central Oregon Intergovernmental Council for Central Oregon Broadband Access - Last Mile Project. Susan Ross explained that the applicant was COIC (Central Oregon Intergovernmental Council), but COIC feels it's not appropriate for them to administer their own grant. They've asked that the County do this. This is funding left over from a bill regarding DSL structuring; and the targeted areas are La Pine, Sisters, Madras and Prineville. LUKE: Move signature. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 10. Before the Board was a Public Hearing regarding the County's Intent to Transfer Real Property to the Humane Society of Central Oregon/SPCA .to be Used Exclusively for Social Services Programs. Tammy Credicott and Rick Isham spoke. Mr. Isham distributed some maps of the general area of the property to the Board. The description was initially a different configuration, but an extended description was published in order to cover all possibilities. The purpose of the hearing is to determine if it is in the public interest to transfer County -owned property under the provision for providing social services. The size of the parcel will be determined, and if the County is willing, it can agree to a variation of a reversionary clause whereby the County would not automatically be able to reacquire the property, but would instead have to give notice because of the capital improvements that would be involved. The Humane Society has requested that there be an agreed-upon payment structure that would be utilized upon exercise of the reversionary clause. There was a brief discussion regarding contingencies in the deed that should be addressed relating to utilities, primarily the sewer capacity. This can be worked out prior to signature of the deed. Finally, the timing of transfer of the deed needs to be determined. The order can be signed now. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 6 of 42 Pages LUKE: One of the questions I asked was that sometime in the future the Road Department may want to expand, and may want to put buildings closer to this property. Are there any objections to that? ISHAM: We haven't written the order yet, so any conditions of this type can be addressed in that. Primarily this is a hearing to take testimony regarding the transfer of the property. This is not a simple issue; the final order will probably go through a review and comment process by both parties. DEWOLF: We wouldn't be holding another public hearing, correct? ISHAM: Not unless the nature of the transfer is substantially different. A brief discussion then took place regarding the land to be transferred. ISHAM: Commissioner Daly said he believed County should retain an easterly portion. DALY- If Ferguson Road is ever built, we may need another access point. I feel we should retain it. Chair De Wolf then opened the public hearing. Being no testimony offered, Chair De Wolf then closed the public hearing. ISHAM: Members of the Humane Society of Central Oregon are here, and they do support this. The size and shape of the parcel should get your attention today, and I suggest you authorize the signature of the order. However, the shape of easterly portion still needs to be determined. LUKE: The reason for the request is that HSCO wants to build a new facility. They now lease it for $1 per year. Fundraising for the new facility will be greatly facilitated by them owning the property. The requirement for being in the public interest comes from the humane societies of Redmond and Central Oregon providing a necessary service at a considerably lower cost than the County could provide itself, and we want to see them continue this service. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 7 of 42 Pages DEWOLF I'm with Mike on the easement issue. Net, it looks like what was originally proposed. ISHAM: Will get an amendment description from the Road surveyor. I suggest you move to authorize signature of an order that it is in the public interest to transfer this property to the Humane Society of Central Oregon, with the property description as amended, and a twenty-year year reversionary clause, and addressing any utility issues relating to the adjoining property. The dollar amount of the termination may not be noted in the order; it may only be indicated in the deed. It is something that takes a process to agree upon. LUKE: Approval of the final document is a separate action by the Board. We're just agreeing to transfer the property, subject to terms and conditions. A reasonable remonstrance is okay with me. I want to make it clear it's a County shop next door, and there is still a lot of land there that the Road Department may need in the future. DEWOLF: I agree. They need to acknowledge that the adjoining County land will be used as allowed. ISHAM: This will be noted in the final deed. LUKE: Move approval of the order as explained by Legal. DEWOLF: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Jim Palmer of the Humane Society then spoke. He said they look forward to a long partnership with the County, and appreciate how the Commissioners have worked with them to develop this document, and towards the protection of the people who will be making donations and supporting HSCO. Chair DeWolf noted that there have been some issues in the past, but that things are better now than they have been in a long time. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 8 of 42 Pages 11. Before the Board was a Discussion of a Contract between Deschutes County and the Oregon Department of Transportation regarding the Property Exchange related to the Welcome Center. Commissioner Luke said there's a hearing coming up on this issue in November, and asked if Legal Counsel has reviewed the documents. Laurie Craghead replied that she has been going through them, and made some suggestions. The documents are at the City of Bend now. She has been working with Jim Forbes of the City, Bob Bryant of ODOT, and others for several weeks. The changes needed were minor ones. Mike Maier asked that after the hearing, how soon could transfer occur? It is tied to another project, and a lot line adjustment will be needed. Ms. Craghead replied that ODOT expects to turn over other properties immediately. At this time, the Board addressed agenda items 13 through 22, which only took a few minutes, before addressing agenda item no. 12. Before the Board was Consideration of Approval of the Consent Agenda. , LUKE: Move approval of the Consent Agenda. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Consent Agenda Items 13. Signature of Amendment No. 4 to the Master Agreement between the State Commission on Children & Families and Deschutes County, Increasing the Allocation of Funds for the Relief Nursery Program and the Together for Children Program 14. Signature of Resolution No. 2002-097, Establishing a Petty Cash Account in the Amount of $200 Each for the La Pine and Sisters Youth Diversion Services Program within the Deschutes County Sheriff's Office Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 9 of 42 Pages 15. Signature of Resolution No. 2002-094, Appropriating New Grant Funds from the State for the Deschutes County Health Department 16. Signature of Resolution No. 2002-096, Transferring Appropriations within Various Funds of the Building Services Fund within in the Deschutes County Fiscal Year 2002-03 Budget, and Directing Entries 17. Signature of Resolution No. 2002-132, Transferring Cash among Various Funds as Budgeted in the Deschutes County Fiscal Year 2002-03 Budget, and Directing Entries 18. Signature of Resolution No. 2002-095, Transferring Appropriations within Various Funds of the Deschutes County Sheriff's Office Budget for Fiscal Year 2002-03, and Directing Entries CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 19. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $1,019.74. - LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 20. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $1,156.19. LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 10 of 42 Pages RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 21. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $1,168,365.22. LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 22. ADDITIONS TO THE AGENDA None were offered. 12. Before the Board was a Discussion and Possible Scheduling of a Decision on File # DR -02-02, regarding Sideyard Setbacks in a Forest Use Zone (Applicant. Dowell). (This was the last item addressed; the discussion began at 10:55 a.m) LAURIE CRAGHEAD: I'm Laurie Craghead, Assistant Legal Counsel. This is an appeal of a declaratory ruling, as you know. Commissioner DeWolf and Commissioner Luke sat through a hearing on this. There are several issues involved in this hearing. I believe I have broken it down into about seven issues that the Board will need to decide as a part of this decision. TOM DEWOLF: We don't have copies of those seven issues, right? CRAGHEAD: No. I'll discuss them with you now. One of the first issues that was raised by the opponent to this declaratory ruling was, is the process in Deschutes County Code 22.32.035(d) constitutional? And that's a process by which -- Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 11 of 42 Pages DEWOLF: Can I ask a favor? Can we make copies of what you've got, so that we have it? CRAGBEAD: Sure. I was thinking it was just my notes, because the record is no longer open for introducing of any more evidence. DEWOLF: What's the difference between you introducing orally -- I mean, I'm either going to write down all this stuff that you say so I know what you're saying, or if I've got that, I can just add little notes to it and not get carpal tunnel syndrome. CRAGHEAD: All right. DEWOLF: Can we take thirty seconds? We'll just break for a minute. (The Board took a brief break to have copies made of Ms. Craghead's notes.) DEWOLF: Okay. Sorry. We're back. CRAGHEAD: I want to put this on the record since it has been a controversial issue. Seven issues were raised at the hearing. (See attached Exhibit A). (Ms. Craghead then read the seven issues and then her possible answers.) LUKE: What's BOP mean? CRAGBEAD: Burden of proof. That was my abbreviation. (She then continued with her explanation of item no. 3) Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 12 of 42 Pages DEWOLF: (In regard to item no. 3) So intention is enough for us to make a determination? CRAGHEAD: If you want to, you could interpret the Code that way, with the fact that the burden of proof submitted with the application form. PAUL BLIKSTAD: Laurie, I might just clarify that point, too. It is and has been our practice for a long time. CRAGHEAD: (She went to item no. 4.) DEWOLF: (Regarding item no. 4) Would we also have the authority to read it in the opposite direction, if we so choose? CRAGHEAD: Yes you would. DEWOLF: So, when we have conflicting codes, on a case-by-case basis we can determine which one takes precedent? In this case, this would be a general enough matter that you would probably be determining it as a precedent for all cases, if you decided one way or the other. If I may, Laurie. For the record, I'm George Read. Some of our Codes say the more restrictive applies. Some of our Codes don't. It is my understanding that Title 22 does not. CRAGHEAD: I'd have to look that up. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 13 of 42 Pages DEWOLF: Whether that's just for this case or other cases, I'd like to know that. The one thing that I think we've all learned about land use is that things we decide on do set precedent. And what we are doing here is setting a precedent on what is going to take higher authority. I'd want to know that before making that determination. And if in fact we've got two different sections of a Code that conflict with each other, my highest preference would be that we get rid of the conflict by clearing up the language so that one or the other is the appropriate one. CRAGHEAD: In general, it is that the more restrictive does apply. But there could be that it is not necessarily more restrictive, in that you are -- you have the ability to call it up de novo on your own, regardless of -- DEWOLF: Regardless of anything. CRAGHEAD: Right. LUKE: We've had that discussion on several issues before us on some that we have called up. And when we decide to hear it, then there is a separate discussion on how we want to hear it. We've made that decision numerous times. DEWOLF: Well, that's true. But here you have a Code saying that they've got to do this, or it's defective, in conflict with -- in reality, they don't really even have to file the appeal because we can call it up on our own. READ: If I may. I'm not positive there is a conflict here. There are two things at work. One is granting the Board authority to do certain things. And the other is granting the Board the authority not to do certain things. And if the Board choose to do one thing, that's one standard. If they choose not to, it's another standard. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 14 of 42 Pages DEWOLF: So in other words, if we chose not to appeal, then the other one would come in to play because they could -- if we chose not to bring something up on our own, and a person wanted to do an appeal would have certain actions they would have to take. And if they don't meet the burden of proof there, then it doesn't come forward. Is that a -- READ: I'll defer to Laurie, but I think that's correct. To rewrite it differently might be difficult. DEWOLF: That makes sense to me. Okay. Your next decision, which is probably one of the biggest decisions, is whether the question between the two applications was different enough that you have the ability to decide this issue. (Item no. 5-C.) LUKE: I have a question of you. You said in 5-13, you said that Bob did mistakenly put the same request on the application form for both applications. But the burden of proof questions are actually different. Does the application take precedent, or the burden of proof? CRAGHEAD: There could be an interpretation. Again, these were supposed to be notes for myself. And it may not have been a mistake. What their requested action is -- LUKE: Whether it is a mistake or not, the same question was on both applications. CRAGHEAD: There was no question actually written on the application. On the line where it says, what is the requested action, is said that -- let me get that. LUKE: Okay, that would help. But that's like an application like you're filling out a building permit or whatever else. But then you submit your documentation for that application as a separate burden of proof. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 15 of 42 Pages CRAGHEAD: Would be a matter of you interpreting what you feel is appropriate for the declaratory ruling process, to determine the question. So you choose which one you would want. BLIKSTAD: Do you want me to read it? CRAGHEAD: Yes, please. BLIKSTAD: Declaratory ruling pursuant to Chapter 22.40 that CU -80-22, which was the original cluster development conditional use, provided for a sideyard setback of not less than 25 feet. CRAGHEAD: Okay. Now, the next question. Even if you did find that that there was a difference in the two questions, based on the burden of proof, you still have to find whether the Hearings Officer's decision had findings sufficient that you can't answer even a broader question. And there is a statement in there, at the end of her decision where she said, "as a result I find there is nothing in this decision that established minimum sideyard setbacks on the property." Now, there are arguments for both sides, one of which was that the written decision did not say anything about it, it's true. Neither side has objected or said that the decision itself set any setbacks. Nothing was written in the decision itself. And, also, the Hearings Officer did discuss the landscape management permit and also did discuss the 1980 Code, the former section 4.085, subsection 7, where it lists what the setbacks are in 1980. Those setbacks were 25 feet unless you were next to forestland, and then they were 100 feet. And that was submitted into the record both before the Hearings Officer and the next time by Paul (Blikstad) while the record was still open. (She then continued reading item no. 6, possible action.) Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 16 of 42 Pages LUKE: Excuse me. I don't want you to answer if it's not in the record, but I believe it is. Was this considered F-3 in 1980, or F-2? CRAGBEAD: F-3. LUKE: Which was a different standard than your F-2 zone now. Is that true? BLIKSTAD: Same standard, just considered lower in productivity timberland. LUKE: All right. READ: Well, I would say, no it wasn't the same standard. There were other uses allowed in F-3 -- cluster developments. LUKE: That are not allowed in F-2. READ: That's right. DEWOLF: What did you say, George, about cluster developments? READ: Because the F-3 zone was determined to be a lower productivity zone, there were more uses allowed, including things like this, cluster developments. DEWOLF: So an F-2 at that time would not have allowed cluster developments? READ: To my recollection, yes. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 17 of 42 Pages LUKE: Thank you. CRAGHEAD: (She then went to item no. 7, the issue and the possible answer.) DEWOLF: And neither of those things is defined? CRAGHEAD: They are defined. The Hearings Officer's decision actually pointed that out in her decision. DEWOLF: Where are they defined? Are they defined in the zoning regulations? CRAGHEAD: Thank you. It was defined in 1980 in the Hearings Officer's decision, former section 1.030, that lands composed of existing and potential forestlands which are suitable for commercial forest use, other forested lands needed for watershed protection, wildlife, fisheries habitat and recreation, lands where extreme conditions of climate, soil and topography require the maintenance of vegetative cover, irrespective of use, and other forested lands in urban and agricultural areas that provide urban buffers, windbreaks, wildlife and fisheries habitat, livestock habitat, scenic corridors and recreational use. DEWOLF: What did that just define? Forestland or zoned forest? CRAGHEAD: Forestland. DEWOLF: Well, that sounds like all of Oregon. Doesn't it? I mean, that was incredibly broad. How does that differ from a definition of zoned forest - a specific spot on a map, correct? CRAGHEAD: Right. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 18 of 42 Pages DEWOLF: Well, that helps. CRAGHEAD: So, it's a matter of whether you feel that there could be a difference here. Also, it's a matter of whether you could make a decision on, at that time if there was an assumption made that a 25 foot setback applied to everything. DEWOLF: What about the possibility that it would be 25 feet on one side and 100 feet on the other side that is adjacent to what may be called forestlands. CRAGHEAD: That's what you'd have to find, if there's enough evidence in the record that they made that assumption, that it was going to be 100 feet on one side and 25 feet on the other. And whether there was forestland on the other side. DEWOLF: Well, I certainly don't see that. LUKE: If we go through all seven criteria and then agree with the applicant in all seven criteria, then it would come down to the fact that we will have to then choose what the appropriate setback is. Is that the point? CRAGHEAD: Number 7 is then, yeah. And then number 8 would be, I guess, then what is the setback? If you agree. READ: If I may, for the record, George Read. There may be another issue. DEWOLF: Oh, good. It's a subset of the issue that we just got over. What was the setback next to forestland, and what is the definition of forestland. But there also was an alternative setback allowed as part of the cluster development. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 19 of 42 Pages CRAGHEAD: Is that evidence that was in the record previously? DEWOLF: Is the Code automatically a part of the record? I guess I felt all along that that the question you are being asked under this final question is basically, can you interpret what the setback should be. I think by making that interpretation you have to look at the rules in effect at that time. The rules in effect for the cluster development include the cluster development standards, which say you can have a lesser setback. IWe " How many cluster developments -- is this inappropriate? CRAGHEAD: Unless it was in the record in the previous hearing, I can't tell you. I ,don't remember. I don't think that was in the previous hearing. DEWOLF: Let me ask this. What you just talked about, would that Code have -- how would we determine if that Code was part of the record. READ: It was. CRAGHEAD: It was. DEWOLF: Okay. So, would that Code be a part of the cluster development Code of 1980, be a part of the record? BLIKSTAD: Correct. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 20 of 42 Pages DEWOLF: It being part of the record, if we were to determine -- if we got through all of this and decided that we could, in fact, make that determination, we could rely on that Code to help us make that determination? Is that the case you are making? CRAGHEAD: That is the case I am making. DEWOLF: Okay. Okay. So, should we just go through these one by one? CRAGHEAD: Sure. DEWOLF: Do we need to have a motion on each one of these? CRAGHEAD: No. By consensus on how you want staff to _write decision. If you want to make a finding on it. DEWOLF: Are we under a 150 -day rule here? CRAGHEAD: No. DEWOLF: So we can postpone this a couple of years, to give ourselves time to think about this? LUKE: I think it's important to make a decision on the first three, if we could. Because that then determines whether you do the rest of them. If we don't come to a conclusion on the first three, there's no reason to worry about the other ones. CRAGHEAD: May I ask, for the record, is Commissioner Daly going to be participating in the decision then? Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 21 of 42 Pages DALY: This decision? I don't know how I can. I haven't read the record. DEWOLF: He's not read the record, he said; so he will not be. CRAGHEAD: If you are going to make a decision today, you're not going to? DALY: If the decision is today, no I can't. CRAGHEAD: No, I can't. LUKE: The first question, which says "is the process in 22.32.035 unconstitutional", let's just go through that again, and encapsulate it. Your recommendation? CRAGHEAD: My recommendation is that is it constitutional. LUKE: Based upon the information you have already put in the record, or before us today? CRAGHEAD: That's my legal opinion. My recommendation is that you make a finding. DEWOLF: Make a finding that it is constitutional? So, do you want a motion on that? Is that what you're -- CRAGHEAD: I don't know that you need to make a motion for findings. You just need to -- DEWOLF: I see what you're saying. When the decision is rendered, that one of the findings would be -- Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 22 of 42 Pages CRAGHEAD: Giving direction to staff. DEWOLF: Great. Okay. Well this sounds logical to me, and I have nothing to indicate that there is another side that is equally as logical. So, in the absence of that, what I have before me, I'm fine with this. WIC a I think you made some good arguments, and I think you've done a lot of research into this, and we rely on your for a lot of information. And I trust your judgment and research. DEWOLF: As far as bias of Commissioner Luke, I really don't know that I have -- to me, this is one of those things that would be a judgment call on the part of the opponents. If they want to appeal this based on bias, I mean, you followed the proper protocols in answering the questions that were raised on bias. I don't know what else to do about that one. LUKE: Of course, they have the right to appeal. I believe I put on the record my experience, my ability, my views of land use laws, and the fact that if I disagree with a particular land use law, the place to change it is not at a hearing but in a legislative forum. I've said that before and that's what I truly believe. So I think I stated my views clearly on the record. If it is appealed that way, then the Court of Appeals or LUBA will have an opportunity to review that to see if it's sufficient. CRAGHEAD: Okay. Number 3 requires you to make an interpretation of Code, and whether the Code allows for the burden of proof to indicate whether he was signing for the applicant. DEWOLF: Do you have a copy of the Code? I'd like to read it. CRAGHEAD: Yes. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 23 of 42 Pages DEWOLF: Notice of appeal. Okay. I'm reading 22.32.020, "Every notice of appeal shall include a statement raising an issue relied upon for appeals of sufficient specificity...." This doesn't say anything about a signature. CRAGHEAD: I think it's in a different section. (She then located that page for Chair De Wolf.) In 22.08.010(b), which is, "applications for land use actions shall be made by the property owner or a person who has written authorization of property owner" . And there is in the record a signed letter from the application authorizing Robert Lovlien to be his legal representative. DEWOLF: Was it before or after the notice of appeal? CRAGHEAD: Before. BLIKSTAD: It's with the original application. LUKE: There's nothing in the record showing Mr. Lovlien withdrawing as his attorney, right? There's nothing in the record that says Mr. Lovlien is not his attorney. BLIKSTAD: Right. DEWOLF: I'm okay with no. 3, then, too. DEWOLF: And no. 4, the request for a de novo hearing. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 24 of 42 Pages CRAGHEAD: Again, that's a Code interpretation, and you'll want to interpret your ability to call up de novo on your own, superceding the requirement to have sufficient arguments in the notice of the appeal. DEWOLF: The way George explained that goes along with my understanding of this. We have the authority to call up anything we want to. LUKE: Not only that, even if somebody makes an application for his own hearing, we don't have to accept it as de novo. We can say, no, we believe the record is sufficient for us to make a decision on the record and not do a de novo hearing, that we don't want to go through that process. We have that option as it comes to us. Just because they ask for it doesn't mean we have to give it to them. CRAGHEAD: Right. But the opponents' argument was that it is a jurisdictional defect and. therefore you couldn't hear it de novo. DEWOLF: But if I agree with that, this is my opinion, the precedent I would be setting is restricting the authority of future Boards of Commissioners from hearing things. That they decide whether there's a defect, that they have the authority to call it up. Period. That's my opinion. CRAGHEAD: Okay. LUKE: I believe we have called one up that we thought was sufficient -- DEWOLF: I know. What I am saying is, if we accept the argument that because -- and I'm not suggesting whether there is a defect in there -- but if there was a defect in there, if that in itself restricts the authority of a Board to call something up on its own, I don't think that's a road we ought to be going down. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 25 of 42 Pages CRAGHEAD: Okay. DEWOLF: I mean, but the flip side of that question, arguing the other side of it is, did we call this up on our own or are we saying that now, to get beyond the fact that there was a defective application, that's the other side of the question. CRAGHEAD: Right. That's something you'll have to decide. DEWOLF: To do that, that's troubling to me. Because maybe these things are not as connected as I was thinking before. Maybe you can help me walk through this. If in fact -- I mean, we wouldn't have known to call this up unless the appeal was filed. CRAGHEAD: It's not a matter of knowing to call it up. You have the option in. the Code of hearing something de novo on your own. DEWOLF: And we chose to hear it de novo, regardless of whether the defect is there. CRAGHEAD: Yes. My point, I think, is that I don't think it requires you to call it up in order to say that you are going to hear it de novo. DEWOLF: We've got two separate sections of the Code at work here. One allows us to call something up on our own, and -- CRAGHEAD: No. We're not even there. We're not even on the issue of whether you call it up on your own. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 26 of 42 Pages DEWOLF: Okay. Then the fact that we've got an application before us, requesting a de novo hearing, and it's got a defect in it, we have the authority, even if we agree there is a defect in it, to call it up anyway because we think it's a matter of County policy that needs to visiting. Is that -- CRAGHEAD: That's my legal advice. It just says, not withstanding any reason, you can call it up de novo. DEWOLF: Period. Okay. CRAGHEAD: And that's in 22.32.027. DEWOLF: I'm all right with that. LUKE: Right. DEWOLF: "Was the question posed by the applicant sufficiently different from the first request for a declaratory ruling that the Board may decide the issue?" I think they are two separate questions, or I wouldn't have agreed to hear this in the first place. CRAGHEAD: Okay. LUKE: I believe, after listening to the testimony in the last hearing we had, the full public hearing on this, I do believe they are separate questions. Clearly, the first, in my opinion, the Hearings Officer did not give a definitive answer on what their setback was. And the second question becomes then, what is the setback. And to me those are two entirely different questions that we asked by the applicant. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 27 of 42 Pages DEWOLF And this whole thing is running on fine points. And the fine point that -- and I'm not recalling if it was Karen (Green) or Tia (Lewis), but I think that it was Karen originally -- you know, the question was asked, does it mean this? And she said, "Nope, it doesn't mean that". But the question wasn't asked, what then does it mean, so she didn't answer that question. And that's what is being asked now, if not this, then what. And all that was asked originally was, is it this. CRAGHEAD: May I back up on one issue on the issue of the de novo? The issue is also whether to interpret the Code on whether there were sufficient arguments by the applicants to get a de novo hearing. Also, if you felt that in the application you would also need to make a finding on that. DEWOLF: Why? CRAGHEAD: Because although you called it up on your own, you didn't' specifically state that the Code provision under which you were calling it up de novo. DEWOLF: So what we are citing is 22.32.027, right? Is that what you are suggesting? 1f That's one option, although as I was just sitting here thinking, I think you will also need to make a finding on whether the arguments are sufficient to take it out of your jurisdiction to be able to hear it. Actually, whether the arguments are sufficient for you to decide to make a de novo hearing anyway. Even without this Code provision. DEWOLF: But obviously they were, or we wouldn't have heard it. CRAGHEAD: You felt that they were sufficient. DEWOLF: Sure, or we wouldn't have heard it. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 28 of 42 Pages CRAGHEAD: Okay. LUKE: Sure. CRAGHEAD: The next issue is whether there were gaps in the Hearings Officer's decision, even though it might have been a different question. Were there enough gaps in the Hearings Officer's decision that allow you to fill those with the answer to the broader question? DEWOLF: That's the whole issue to me. The fact is, why would a cluster development have been approved? Number one, why would Jeb Barton have applied for it if he didn't intend to have buildable lots? Number two, why would it have been approved way back when if it wasn't the intention of the County planning department at that time to allow for this specific number of buildable lots? And Karen didn't answer the question; Tia didn't answer the question. So, who's left? We're the appeal board, right? So it seems to me that that's the question that has never been answered by the two hearings that have taken place. Is that what you are looking for? CRAGHEAD: Yes. DEWOLF: I mean, Dennis may not agree with me -- CRAGHEAD: So you are finding and interpreting that you can arrive at a different answer for declaratory ruling purposes. DEWOLF: That's absolutely it. Left where it was before it came to us, there was virtually no way for our planning department to conclude what a setback is. So that question has to be answered in order for this to become a buildable lot. Unless I'm missing something. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 29 of 42 Pages LUKE: There is very little question in my mind that it was designed to be a buildable lot, because there is open space set aside. These are buildable; this is open space. That's why you do a cluster development. CRAGHEAD: Okay. DEWOLF: Is that all you need on 6? CRAGHEAD: We also need a determination on whether the Hearings Officer, in reviewing the previous landscape management approval in the 1980 Code, whether -- The opponents main argument that she had already looked at those and said that there is not enough there to fill in the gap. You are saying that is not what she decided. She left a gap for you to be able to make a decision. DEWOLF: I need you to ask that in a different way. CRAGHEAD: Okay. The finding then is that the Hearings Officer's decision -- DEWOLF: Karen Green's? The one in 2001 or 2000? Whatever it is. I know I have it here. CRAGHEAD: Right. Whether her discussion of previous approval and Code provisions was sufficient to fill in the gap. You are saying it was not. DEWOLF: What is driving me crazy about this is that "the Hearings Officer finds from this record that there is not sufficient evidence from which I can find that the cluster development CU -80-22 approved sideyard setbacks for the subject property of not less than 25 feet." But there's nowhere in here for anyone to reasonably conclude what the setbacks are. That's the gap that's missing. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 30 of 42 Pages CRAGHEAD: Right. And your decision is that she did not cover a discussion of that gap, so that you can therefore fill in the gap. DEWOLF: To me, and my non -legal brain, the gap is that we don't know what the setbacks are for the sideyards. CRAGHEAD: Right. And the argument of the opponents is that this process cannot fill in the gap. DEWOLF: That they would have to look for a different process, such as a conditional use permit or a variance process? CRAGHEAD: Right. So you would need to make a finding that her decision does not prevent you from filling in the gap. DEWOLF: Well, I'd go up a paragraph then. Because what she talks about here is, "I find the cluster development approval did approve sideyard setbacks of less than 100 feet." So, we do have in this record an approval for less than 100 feet. What she doesn't find is that it is less than 25 feet. Not less than 25. So it's less than 100 but there's no determination of what it is. Is that a gap? That's my question to you. LUKE: I believe it is a gap. DEWOLF: It's a gap, but legally, within this process, did Karen leave a gap? In other words, and help me out here, is your interpretation of what the opponents are saying is, this is a question that was never asked; therefore, it's not a gap? Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 31 of 42 Pages CRAGHEAD: They are not saying that. That's what the applicants are saying, that this was a question that was never asked the first time; so, therefore, it is a gap that can be answered by you. The opponents are saying that it was a part of Karen's decision and she looked at all that; and therefore you cannot fill it in now, even with the broader question. DEWOLF: And you understood what she just said? (Laughter from the audience.) BLIKSTAD: Yes, because I've been dealing with it for a few hundred years. CRAGHEAD: You may have two different questions, but if you arrive at the same answer that there is not enough evidence in the record for you, then you can't fill that gap in the second one. DEWOLF: If there's not enough evidence in the record, then we cannot fill in the gap? If there's not enough evidence that there's a gap. So what we are trying to determine is whether or not there is a gap. CRAGHEAD: Whether or not there was anything - yes. BLIKSTAD: That there is something that would fill that gap. CRAGHEAD: Right. DEWOLF: I mean, on the broad picture, there's a gap, because we don't have a determination of what the sideyard setback is. On the narrower question, is there a gap in this decision; that's the complication here. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 32 of 42 Pages CRAGHEAD: That's the complication. DEWOLF: And you think there is a gap. CRAGHEAD: I do. Because of the fact that it is a broader question and the declaratory ruling Code requires you to resolve the controversies between the parties. I've got it written down, how it's written out. "Resolve and determine the particular rights and obligations of particular parties to the controversy." DEWOLF: We have that obligation under our own Code? CRAGHEAD: When you have a declaratory ruling application before you. DEWOLF: Does Karen have that same obligation? CRAGHEAD: Yes. DEWOLF: Then she left a gap. BLIKSTAD: Based on the question that was asked of her. DEWOLF: And the specific question to her was not what is the sideyard setback. CRAGHEAD: Right. Although the opponents do argue that is the gist of what was essentially the question. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 33 of 42 Pages DEWOLF: It wasn't specifically asked that way. But everybody knows what their intentions were. Maybe everybody doesn't. I believe I know what their intentions were, and that is, "how are we going to be able to build on this lot?" CRAGHEAD: Right. And the opponents argue that, also based on documents that were submitted by the opponents' attorney during the hearing, in which there were some statements that made it look like it was a broader question. It's a matter of whether you want to interpret those documents that were turned in by the opponents along with the Hearings Officer's decision. BLIKSTAD: She may have done that (these words were too faint and unintelligible). My recollection is that Bob (Lovlien) didn't ever say, what is the minimum setback. DEWOLF: Which is the one Tia Lewis heard? BLIKSTAD: Yes. DEWOLF: But she gave the same answer. BLIKSTAD: She said she couldn't decide, and Karen has already decided. Karen did state in the last paragraph before the decision, the last page of her decision, "as a result, I find that there's nothing in this decision" -- meaning CU -80- 22 -- "that established the minimum sideyard setbacks for the subject property." So there she's focusing on just the decision, the conditional use decision. It doesn't appear that she is bringing in the landscape management approval in the partition. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 34 of 42 Pages READ: I think there is that question, which is debatable. But there's another question, and that has to do with your authority under the declaratory ruling section that Laurie just cited. It looks like that section allows you to go back and reinterpret the Code, from 1980. So, I think that's another way of looking at this. I mean, if you can't get there from anything in the record, I think you are required to look at the criteria. To look at the rules. I've made that point before, but I think that's another way of reading that section. DEWOLF: Is it reasonable for me to conclude that the Hearings Officer should have done what you just described, that we are required to do in this declaratory ruling, which is, resolve the issues? Is it reasonable for me to conclude that she should have done that? CRAGHEAD: That would be your opinion. DEWOLF: My interpretation -- Karen's could be different -- but is it a reasonable conclusion for me to say, you know, when she says in here, CU780-22, "this decision simply does not address minimum sideyard setbacks". She acknowledges that, right in this decision. And next, "nevertheless, cluster development approval must be considered in the context of the partition approval that created two, 200 -foot wide parcels. The record makes clear for the preservation of the maximum amount of wildlife habitat, yadda yadda yadda, I find the goal was largely unarticulated justification for approving narrower, small parcels; but, ultimately, it did approve sideyard setbacks of less than 100 feet." To me, that's screaming out for somebody to say, it should be 25 feet, it should be 40 feet, it should be whatever. That's what I'm looking for in the gap, that if in fact one of her responsibilities is to resolve the conflict, she didn't do that, in my opinion. Is that a reasonable conclusion that I can draw? CRAGHEAD: I believe so. DEWOLF: That is the conclusion I am drawing today. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 35 of 42 Pages LUKE: There is a gap, and I believe it is our obligation to try to come to some conclusion on what that gap should be, how we should fill that gap. CRAGHEAD: We still have the issue of, okay, what is it then? [RUNIs Can we ask questions of staff about the 1980 Code relating to cluster developments now? What the Code actually says? CRAGHEAD: I think you would need to read the Code and make an interpretation of the Code. DEWOLF: On page 63 of Ordinance PL -15, number 7, yards and setbacks, 7-b says that each sideyard shall be a minimum of 25 feet, and for parcels or lots with sideyards adjacent to forestlands; the adjacent sideyards shall be a minimum of 100 feet. So, if we determine that the side that is connected to not the Kuhn's property is forestlands, one interpretation could be that on that side it's 100 feet and on the side where the Kuhn's property is 25 feet. Well, let me jump back in. There's the definition that Laurie read, which like you said includes everything. And that definition would actually include the Kuhn's property, a hundred feet from the property as well. LUKE: Which is also forestland zone. READ: Right. DEWOLF: And the property itself would be forestlands. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 36 of 42 Pages •aw., b So that's where that's a problematic standard. And that's why it is really difficult to make the interpretation based on this forestland based on this forestland definition. Then the question is, how is that done? If we always require everything to be 100 feet. DEWOLF: There are people in New York who would consider all of Deschutes County forestlands and therefore nothing could be built anywhere and we wouldn't have any cities. LUKE Are you telling me that I can't ask staff to read from Code to me what the Code is for a cluster development? Is that the Code for a cluster development? READ: That was the Code for forestland, F-3. LUKE: But this is a cluster development, which is allowed to do certain things if it gains the approval outside the regular Code. Is that correct? READ: Yes. LUKE: And this is a cluster development. DEWOLF: And it was approved. READ: Correct. DEWOLF: Is there a cluster development Code that indicates a sideyard setback? READ: Yes. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 37 of 42 Pages DEWOLF: Can you read that to us, please? One of the criteria for approving a cluster development states, setbacks and height limitations shall be as prescribed in the zone in which the development is proposed unless adequate justification for reduction is provided by the hearings body; but in no case shall the setbacks be less than 25 feet or at a height greater than 40 feet. LUKE: That height has since -- have we changed that? READ: Yes. Remember, this is out of PL -15. These are the rules that were effective at the time of this application. LUKE: Is the application for the cluster development part of the record? CRAGHEAD: Yes. L 01614 i Was there a request for a reduction of the sideyard setbacks, or was the sideyard setbacks addressed in any way in the application for the cluster development? BLIKSTAD: No. It wasn't addressed in the application or the decision. None of the cluster development standards were addressed in the decision or the staff report. CRAGHEAD: I believe that's what the Hearings Officer found in her opinion, her decision. BLIKSTAD: I half jokingly said in my staff report that our land use was in its infancy back then, and I think this is a reflection of that. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 38 of 42 Pages CRAGHEAD: The Hearings Officer also pointed that out to the opponents' attorney, that it was very loose then. LUKE: The Hearings Officer was part of the planning process in 1980. BLIKSTAD: Not yet. But close. READ: None of us were here then. LUKE: I was here. DEWOLF: Staff has recommended a sideyard setback of 40 feet. Is that 40 -foot sideyard setback recommendation for both sides of this,particular piece of property? Was that the recommendation? BLIKSTAD: I guess we were focusing in on the controversy between the Kuhns and the Dowells. I personally was looking at just the south. So I guess you could make that decision. CRAGHEAD: And also the opponents stated at the hearing that this is based on one of the maps that was not recorded as part of the landscape management application. Therefore, the opponents have argued that you cannot rely on that map to determine what the setbacks would be. Because the Hearings Officer's decision looked at the landscape management application and didn't find it helpful in determining what the -- well, you have to make a finding on whether the Hearings Officer made a determination on whether that helps you make a determination under the CU -80-22 permit. LUKE: Clearly it cannot be less than 25 feet. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 39 of 42 Pages DEWOLF: And staff s recommendation of the 40 foot was based on -- BLIKSTAD: One of the scale drawings. DEWOLF: The structure that is currently on the Dowell property, what are the setbacks? BLIKSTAD: That's what I was just looking for. READ: You know, we answered a question you asked earlier, that were there any setbacks approved in the findings or decision of the original cluster development. And the answer is no. The other answer is, there were a couple of plot plans in there with dwellings drawn on them, with setbacks of less than 100 feet. That's in the record. So, I mean, that would be evidence that there were other setbacks intended, because they are on drawings in the file. DEWOLF: Okay. CRAGHEAD: So then if you are going to go with those maps, you would also have to approve those for the other kinds of setbacks, such as the 400 -foot and 150 and all that. READ: There was no 400 -foot setback requirement as part of the land use approval. I think that's a different issue. The question of what are the setbacks, you come to what did the file have in it. And I think that's what you should look at. And then what were the criteria at the time? I think the next step, if I can go that far, is then if there is some evidence, what was it and what can you remake the findings that weren't made at that time. They didn't make the findings, and nobody knows what they are, and the question under the declaratory ruling section that Laurie cited here, 22.040.010 and all the way down to 22.040.050, the question for the Board is can you remake findings for things that were left out of the decision. I think it at least allows you quite a bit of latitude to do that, because how else can you answer questions like that. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 40 of 42 Pages DEWOLF: Can I ask this question? To me, these numbers we've worked our way through these questions you've laid out, that's a very logical way to proceed. There may be people who disagree with our conclusions but these were the right questions to ask. Where we're at, it's my understanding that we are trying to get to a determination on what the setbacks would be. I'm not sure I'm prepared to do that today, because I would like some more information about some previous decisions that were made way back when that I don't have with me right here. What can we do to -- CRAGHEAD: You mean you need time to review the record, in other words. DEWOLF: I need time to review the record and to talk with staff to understand 25 versus 40 versus maybe they are different on either side, not just north and south but east and west. Whatever we decide here, since we're filling in a gap, I want to fill it. LUKE: And I have the same problem. I am comfortable with the decisions we've made so far on the points that you've raised, but this is an important decision on the amount of setback. I would like to spend a little time on that myself. CRAGHEAD: Okay. So you want to deliberate later? DEWOLF: Right. And we don't have a meeting next week, correct? So we'll go to two weeks from today, to the 23rd of October. That will give us two weeks to get through these issues with staff. CRAGHEAD: And I want to reemphasize that this is legal advice that I've been giving you on the record, whereas I could have come to you individually under the case law to help you as kind of your judicial assistant to help you with formulating what your decision will be. But we wanted to be above -board with both parties who were at the hearing so that they know the leanings of the Board. Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 41 of 42 Pages ""I I would point out that we are always above -board, but this goes beyond what we are required to do to make sure that record is very clear on the information being given the Commissioners. DEWOLF: Okay. So how do I describe this? We are scheduling a possible decision for October 23. READ: Further deliberations and a possible decision. DEWOLF: Great. Okay. Anything else? Then for today, we are adjourned. Being no further items brought before the Board, Chair Tom DeWolf adjourned the meeting at 12:05 p.m. DATED this 91h Day of October 2002 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Tom DeWolf, Chair ennis R. Luke, U-omrf issioner Mich el M. Daly, Co issioner Minutes of Board of Commissioners' Meeting Wednesday, October 9, 2002 (Includes Deliberations on File No. DR -02-02, Dowell Appeal) Page 42 of 42 Pages DOWELL APPEAL ISSUES TABLE No. Issue Possible Answer 1. Is the process in 22.32.035 D Yes. That provision provides that the BOCC may only constitutional? consider: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and 3. Recommendations of staff. There has already been a hearing. Nothing in the statute or constitution requires the County to allow a 2nd bite at the apple. Opponents will have a difficult time showing how they were prejudiced by getting a chance to be heard a 2nd time. The non -appealing opponents don't pay any appeal fee. 2. Bias of Commissioner Luke. LUBA & Ct. of Appeals case law says that opponents must prove that the challenged member must not have had any capacity to apply the facts and the law due to the bias. DCC 22.24.110 says that, when a member of a hearings body is challenged for bias, the member may disqualify self, w/d or state on the record the member's capacity to hear to matter. Commissioner Luke stated on the record his capacity. 3. Was the application form signed The BOP submitted with the application clearly indicate by the applicant? Bob Lovlien as the attorney for the applicant. Additionally, the record contains a handwritten letter from the applicant stating that Bob is his legal representative. Therefore, the mere fact that Bob signed the application as "Robert Lovlien" and not "Robert Lovlien, Attorney for Applicant" does not remove the jurisdiction from the Board because it is not a fatal flaw. 4. Was the applicant's request for a Irrelevant whether the applicant sufficiently argued the de novo hearing sufficient such reasons for requesting a de novo hearing. DCC that the Board was authorized to 22.32.027 says that "the Board may decide on its own hear the appeal de novo? to hear a timely filed appeal de novo." This does create somewhat of an inconsistenty between that provision and 22.32.022 which says that "Any failure to conform to the requirements [for a Notice of Appeal] shall constitute a jurisdictional defect." Explaining why the applicant wants a de novo hearing is a requirement of the Notice. The Board, however, could interpret the .027 provision to override the .022 provision. 5. Was the question posed by the A. As George said, Chapter 22.40 is a local applicant sufficiently different from provision and the Board can interepret the the first request for a declaratory questions as being sufficiently different with that ruling that the Board may decide interpretation being given deference at LUBA. the issue? B. Bob did mistakenly put the same request on the Page 1 of 3 — DOWELL APPEAL ISSUES EXHIBIT A - Page 1 of 3 SALegal\CDD\DowellWppeal Issues table.doc l Deliberations on File #DR -02-02 (Dowell Appeal) Board Minutes of 10/9/02 Page 2 of 3 — DOWELL APPEAL ISSUES EXHIBIT A - Page 2 of 3 SALegal\CDD\DoweIMppeal Issues table.doc Deliberations on File #DR -02-02 (Dowell Appeal) Board Minutes of 10/9/02 application form for both applications. C. In the BOPs, however, the questions are different. The question in the first case was: Did CU -80-22 provide a setback of not more than 100 feet but not less than 25 feet? The question in this case is: What is the side yard setback for Parcel 1 of MP -79-232? D. On page 3 of the BOP for the 2"d application, Bob specifically includes other approvals and information in the original file as a basis for determining the setbacks. 6. Does the following sentence in the There was nothing to appeal. The HOFF was correct Hearings Officer's decision that nothing in the written decision established the preclude the Board from being minimum side yard setbacks. See page 9, middle of able to make a decision on this page, last sentence of 2nd paragraph entitled appeal since Bob didn't appeal "FINDINGS." She says the question is whether the that decision - "As a result, I find decision approved a particular side yard setback. Bob, there is nothing in this decision that however, has asked the Board to look outside the established the minimum side yard written decision for an answer to hisq uestion. On the setbacks for the subject property."? other hand, the HOFF did discuss the LM & 1980 code provisions to determine if they assisted her in determining whether the CUP written decision provided any assistance in determining what the CUP approved and she said they didn't. Also, she made a finding that lanugage in the original approval suggests, although didn't specifically find, that the County considered the property to be forestland with low timber productivity. (page 11, bottom of page) Further, the HOFF pointed out that the code allowed reduced setbacks, if necessary, but not less than 25'. These can all be used to indicate that she included an evaluation of the 1980 code & other approvals when making her decision. The counter arguments are: the HOFF decision only mentions the former section 4.085 to explain what the side yard setbacks were in 1980. She didn't discuss futher regarding any assumptions made regarding setbacks at that time. I.e. it didn't say that the 4.085 code was no help in determining what the 1980 CUP decision considered were the setbacks. Thus, the Board could find that the HOFF didn't answer the broader question. The decision has gaps in it. Also, 22.40.010(A)(2) — there is doubt as to the meaning and/or application of the 1980 permit. 22.40.050 — because the language in the permit is ambiguous, must go outside the permit to "resolve and determine the particular rights and obligations of articular parties to the controversy" as required by Page 2 of 3 — DOWELL APPEAL ISSUES EXHIBIT A - Page 2 of 3 SALegal\CDD\DoweIMppeal Issues table.doc Deliberations on File #DR -02-02 (Dowell Appeal) Board Minutes of 10/9/02 Page 3 of 3 — DOWELL APPEAL ISSUES EXHIBIT A - Page 3 of 3 SALegal\CDD\DoweIMppeal Issues table.doc Deliberations on File #DR -02-02 (Dowell Appeal) Board Minutes of 10/9/02 22.40.010(B). Thus, Board can look to the 1980 4.085 to find what the setbacks were. 7. Can the Board find in the record The record for this appeal shows the 1980 code for the 1980 approval a minimum provisions and has the comment by Paul Blikstad that setback for this property ? applications were handled loosely then. Thus, the Board could make an interpretation that, since the question is broader, that they can look outside the written CUP approval for the answer and, in fact, have to do so. That answer then could be that the staff assumption at that time was, based on 4.085, that the 25' setback would automatically apply unless a special circumstance existed such as the property being located near "forestland." Forestland is different than land zoned forest. This is answer reasonable because the entire purpose of a cluster development is to allow development. Hearings Officer did find that this particular approval was for the purpose of creating 2 buildable lots and one lot for open space. Thus, a cluster development would not have been approved in such a way as to create an unbuildable lot. Further, the Dowell's approved LM & previous owner's cluster development approval was never appealed and any approval had to be for 25 feet. 8. Page 3 of 3 — DOWELL APPEAL ISSUES EXHIBIT A - Page 3 of 3 SALegal\CDD\DoweIMppeal Issues table.doc Deliberations on File #DR -02-02 (Dowell Appeal) Board Minutes of 10/9/02