2003-1175-Minutes for Meeting August 13,2003 Recorded 8/18/2003DESCHUTES COUNTY OFFICIAL RECORDS
NANCY BLANKENSHIP, COUNTY CLERK 1rd V i(
COMMISSIONERS' JOURNAL 08/18/2003 03:28:15 PM
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2003-1170
DESCHUTES COUNTY CLERK
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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 A DECISION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, AUGUST 13, 2003
Commissioners' Hearing Room - Administration Building - 1130 NW Harriman St., Bend
The purpose of the meeting was for the Board to consider making a decision on an
appeal of the Hearings Officer's decision on File No. DR -02-2 (Applicant: Dowell).
Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly;
also present were Laurie Craghead, Legal Counsel; Paul Blikstad and Kevin
Harrison, Community Development Department; and three other citizens. No
media representatives were in attendance.
Chair Dennis Luke opened the meeting at 1: 30 p.m.
LUKE:
There is no reason for a staff report at this time, but there were some negotiations.
Would you like to get on the record at this time?
LAURIE CRAGHEAD:
Yes. The County applied for a DLCD (Department of Land Conservation and
Development) grant for doing mediation. After lots of scheduling and issues, we
had two days with the mediator. And nothing came of the mediation, so we're back
to having a decision.
And the applicant has graciously agreed to extend the deadline - I believe to
August 31 or September 1 - to provide us sufficient time to write the decision.
LUKE:
Are there any questions of legal staff from any of the Commissioners?
Minutes of Board of Commissioners' Decision Wednesday, August 13, 2003
Dowell Appeal - File No. DR -02-2 Page 1 of 5 Pages
DALY:
I only have one question. The last paragraph of the staff report mentions that,
"Commissioner Daly did not participate in the hearing before the Board last
August, so if it is decided that he needs to participate, we'll have to make other
arrangements since he has not been a part of these proceedings."
CRAGHEAD:
Paul and I got clarification of that and discussed it. Although you were not at the
hearing, you did listen to the tapes, read all the documentation and participated in
subsequent deliberations. So you can participate in the decision.
LUKE:
So, it is your and staff s opinion that Commissioner Daly can participate in the
decision today?
CRAGHEAD:
Yes.
LUKE:
If the other Commissioners don't mind, I'll go first. I have some written remarks.
This will become part of the record.
At this time, Commissioner Luke then read his statement to the audience. A copy
of his written statement is attached as Exhibit A.
DALY:
I also have a prepared statement to read into the record. And I have copies if
anyone needs one.
Legal Counsel kind of went through this file with me, and indicated a series of
questions that needed to be answered in this case. I used the issues table that
Laurie Craghead had previously prepared for us. It is part of the record.
At this time, Commissioner Daly read his prepared statement to the audience. A
copy of this statement is attached as Exhibit B.
LUKE:
For the record, I agree with Commissioner Daly's statement.
Minutes of Board of Commissioners' Decision Wednesday, August 13, 2003
Dowell Appeal - File No. DR -02-2 Page 2 of 5 Pages
CRAGHEAD:
Except for the twenty-five feet, since you've chosen forty.
LUKE:
Right.
DEWOLF:
I did not prepare a written statement. But I really don't have anything to add,
either. Mike's (Daly) answers to those questions all make sense to me, and Dennis
kind of covered the broad themes of this thing. And I think that is our obligation.
And I think that between these two statements, between CDD (Community
Development Department) staff and legal staff, that we've got all of the appropriate
findings right here.
My sense of things, based on what I've read through, is that a forty -foot setback is
the appropriate setback in this case. I'm basing that on what Dennis (Luke) said. I
mean, what Mike (Daly) said was, "no less than twenty-five feet". But I didn't find
any justification specific to twenty-five feet, but there is justification specific to
forty feet. That's why I landed there.
CRAGHEAD:
So, therefore, someone will move approval of the application and direct --
LUKE:
One question. (To Commissioner Daly) Would you be willing to support a forty -
foot setback?
DALY:
Yeah. Mine just says not less than twenty-five feet. I guess my question to legal
counsel is, if we say forty feet is the right setback for this particular zone, is that
binding? Because I'm going by the zoning regulations in 1980, which specifically
says, "you can deviate from what the zone is, but in no case shall the setback be
less than twenty-five feet".
CRAGHEAD:
That would be fine, because you are interpreting the 1980 permit, that at that time
the maps determined that setback was forty feet.
Minutes of Board of Commissioners' Decision Wednesday, August 13, 2003
Dowell Appeal - File No. DR -02-2 Page 3 of 5 Pages
DALY:
I am basing some on my experience as a contractor before I became a
Commissioner. I drew a lot of site plans, and we had a minimum setback from a
property line. A lot of times, if the minimum setback was fifteen feet, we knew it
had to be at least farther than fifteen feet. Sometimes it would be forty or fifty, and
the site plan would actually indicate how many feet. So we're okay as long as we
weren't closer than the fifteen feet.
To me, that was a site plan that was drawn back then, and as long as they weren't
within twenty-five feet of the property line they were probably deemed to be legal.
Now, that's just based on my experience.
LUKE:
The question I hear is, does this forty feet set precedence for other applications?
CRAGHEAD:
Not for other applications; just for this one.
DALY:
I'm willing to accept forty. I'm sure it is within the boundaries.
BLIKSTAD:
Could we get clarification that that is forty feet from both side yards?
DEWOLF:
Both side yard setbacks.
BLIKSTAD:
Okay.
CRAGHEAD:
One other question. Since the applicant has been represented by legal counsel, it is
normal procedure for the Board to direct legal counsel of the applicant to do the
initial draft of the findings, with my, and staff s, review.
LUKE:
That's what we did this morning with the other land use case. This has been done
on numerous occasions. I'm okay with that.
Minutes of Board of Commissioners' Decision Wednesday, August 13, 2003
Dowell Appeal - File No. DR -02-2 Page 4 of 5 Pages
DALY: Move approval of the application for declaratory ruling, and setting
the setbacks at forty feet, based upon the findings stated here, and also
from the findings from applicant's legal counsel and staff; forty feet
from each side yard.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Being no further discussion on this matter, Chair Luke adjourned the meeting at
1: 50 p. m.
DATED this 13th Day of August 2003 for the Deschutes County Board of
Commissioners.
De is R. Luke, Chair
ATTEST:
Recording Secretary
Tom DeWolf, Commis-)
Attachments
Exhibit A: Commissioner Luke's written statement justifying his decision in this matter
(4 pages)
Exhibit B: Commissioner Daly's written statement, justifying his decision in this matter
(3 pages)
Minutes of Board of Commissioners' Decision Wednesday, August 13, 2003
Dowell Appeal - File No. DR -02-2 Page 5 of 5 Pages
DOWELL
Justification for 40' setback
In the current case, the applicant requested a decision on the
question of "What is the side yard setback for Parcel 1 of MP -79-
2327" The question posed by the applicant in the previous case,
DR -01-5, was whether the CU -80-22 decision provided for a
setback of "less than 100 feet but not less than 25 feet." The
Hearings Officer found in her 2001 decision that nothing in the
1980 conditional use "decision ... established minimum side yard
setbacks for the subject property." (Emphasis added) For the
2001 decision, the Hearings Officer reviewed the file for which two
maps were submitted for the original 1980 conditional use
application. One map shows a 40 -foot setback on the north side,
this map is in the original CU file, and one shows a 50 -foot
setback from the south property line, this map was in the file for
the LM decision 1992 and was not appealed. The Hearings
Officer did not find these maps persuasive in her attempt to
answer the question posed by the applicant.
Page 1 of 4 — DOWELL — LUKE STATEMENT
Exhibit /T
Page of
DCC 22.40.040(A) says that declaratory rulings "shall be
conclusive on the subject of the ruling and bind the parties thereto
as to the determination made." Thus, at first glance, the 2001
Hearings Officer's finding regarding the usefulness of the two
maps appears to be binding on the parties to this case as well
since they are the same parties in 2002 as in 2001. 1 find,
however, that the question being asked in this application for a
declaratory ruling is much broader than the question in the 2001
application and that the Board is mandated in DCC 22.40.010(B)
to "resolve and determine the particular rights and obligations of
particular parties to the controversy." Thus, in order to resolve and
determine the particular right of a setback on this particular
property owned by the particular parties, Jeffrey and Pat Dowell, I
must consider those maps again.
must consider those maps because, pursuant to DC
22.40.010(A)(2), there is doubt and a dispute as to the meaning of
the 1980 CU permit and the 1992 LM permit. Thus, pursuant to
DCC 22.40.050, 1 find that those permits and the Hearings
Page 2 of 4 — DOWELL — LUKE STATEMENT Exhibit A
Page of
Officer's decision are ambiguous on their face and in their
application. The 2001 Hearings Officer decision and the previous
permit decisions left a gap that I, as a decision maker, must fill
and I find that the map depicting the 40 -foot setback is the
appropriate indicator of the setback approved for this property.
This property is only 200 feet wide. The County would not have
approved a three -lot cluster development with the lots being that
narrow had it not intended for the lot to be buildable. Given that
the 1980 code allowed setbacks to be as little as 25 feet but also
given that the purpose of cluster developments was preservation
of wildlife habitat, I find that the 40 feet depicted on the map in the
file adequately addresses the concern of allowing the lot to be
buildable and of protecting the purpose for which the cluster
development was created. I believe that map was the one
considered for the 1980 and 1992 permits. Thus, I find that the
side yard setbacks for the subject property are 40 feet.
Page 3 of 4 — DOWELL — LUKE STATEMENT
Exhibit A
Page 3 of L(
The opponents argued that, if the Board uses either of the maps
in the record for determining the side yard setback, then it should
also enforce the 400 -foot setback from Sisemore Road depicted
on the maps. While the 400' setback issue is similar to the subject
setback question because neither has findings explaining it in the
original CU decision, I find the two setbacks to be different issues.
The 400' setback question was not asked as part of the
application. Also, the 400' setback is not shown on the same map
depicting the 40' setback in the original CU application. The 400'
setback was shown on the final Mylar for the minor partition filed
after the original CU was approved so the evidence being relied
upon for the 40' setback is different than that supporting the 400'
setback.
Page 4 of 4 — DOWELL — LUKE STATEMENT
Exhibit A
Page �_ of
August 13, 2003
Dowell appeal decision
File # DR02-2
Mike Daly
Deschutes County Commissioner
Issues to be addressed:
1. Is the process in DCC 22.32.035D Constitutional?
Answer: Yes, and I direct Staff to write findings concerning the
constitutional issues.
2. Will Commissioner Luke be able to make an unbiased decision?
Answer Yes
I feel Commissioner Luke is enough of a professional and spent enough
years working with Land use issues to be able to listen to the evidence and
make his decision based on the issues and the law, not by any preconceived
personal opinion. Further, he properly stated his reasons on the record why
he believed he had the capacity to appropriately apply the facts and the law.
3. Was the application form signed by the applicant?
Answer Yes
It is clear in the record that Bob Lovlien was the legal representative of the
applicant; therefore I find he was signing the application in a representative
capacity for the applicant. Thus, the signature of Mr. Lovlien is not a
jurisdictional defect in the Notice of Appeal.
4. Was the applicant's request for a de novo hearing sufficient such that
the Board was authorized to hear the appeal de novo?
Answer Yes
This case is important. Even though DCC 22.32.022 Requires an
explanation of why the applicants want a de novo, DCC 22.32.027 allows
Exhibit 6
Page t of 3
for the board to decide to hear the case regardless of the other requirements.
I find that the Board determined on its own that the case should have been
heared de novo.
5. Was the question posed by the applicant sufficiently different from the
first request for a declaratory ruling that the Board may decide the issue?
Answer Yes
DCC 22.40.040 (B) says that parties cannot apply for a declaratory ruling
on the same question. I find that the question on this declaratory ruling
procedure is different than the first declaratory ruling procedure. In the first
application the applicant requested a declaratory ruling of whether the CU -
80 -22 decision approved a setback of less than 100 ft. but not less than 25 ft.
from the side yard.
The question in this proceeding is much broader and is essentially, if the CU
80-22 decision did not provide the setback, what is the setback?
6. Does the following sentence in the Hearings Officer's decision preclude
the Board from being able to make a decision on this appeal since Bob
Loveland didn't appeal that decision?
Answer NO
The hearings officers' decision was not so broad as to preclude a decision in
this case. The Hearings Officer's conclusion that the 1980 decision did not
provide a minimum side yard setback, does not stop us from going outside
the decision to determine what is the setback. Further, according to DCC
22.40.010, the purpose of a declaratory ruling is to determine the rights and
obligations of the people to be affected by the ruling. The applicant's right to
know what the County considers to be the setback for this property was not
answered in the first declaratory ruling process. Therefore, it can be
answered in the current process.
An additional issue raised by opponents is that the application should be
denied pursuant to 22.40.0 10 C & D because they believe that is a
modification of a previous approval and it is a decision that should be made
in conjunction with an application for a conditional use permit. I find it is
not a modification of an approval because the approval never provided a
Exhibit 9
Page a of 3
specific setback. Additionally, the DCC 22.40.010 D provision is
permissive not mandatory for a hearings body to deny a declaratory ruling
application if a decision can be made in conjunction with another land use
permit.
7. Can the board find in the record for the 1980 approval a minimum
setback for this property?
Answer Yes
DCC --1980 zoning regulations 4.085 paragraph 16, sub paragraph D.
subparagraph 1 states that, for cluster developments, setbacks may be less
than those required in the zone but, in no case, less than 25 ft. I believe,
because the 1980 decision was silent, the assumption must have been that
the minimum setback was 25 f , not withstanding what was shown on the
maps for the 1980 and the 1992 LM permit application site plan maps.
Signed
101 . we!!!,;4=Ae#
chael M. bAiy
Deschutes Count Commissioner
Exhibit I
Page 3 of 3