2003-1145-Minutes for Meeting July 28,2003 Recorded 8/6/2003DESCHUTES COUNTY OFFICIAL
NANCY BLANKENSHIP, COUNTY
COMMISSIONERS' JOURNAL
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2003-1145
CLERKDS 4J 2003.1145
08/06/2003 04:52:35 PM
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 WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, JULY 289 2003
Commissioners' Hearing Room - Administration Building
1130 NW Harriman St., Bend
Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly.
Also present were Mike Maier, County Administrator; Scott Johnson, Commission
on Children & Families; Timm Schimke, Solid Waste Department; Roger
Kryzanek, Mental Health Department; Sue Brewster, Sheriffs Office; Bob Haas,
Information Technologies; Teresa Maul, Assessor's Office; and Tom Blust and
George Kolb, Road Department.
Also in attendance were Paul Blikstad, Roger Everett and Matthew Martin,
Community Development Department; Laurie Craghead, Legal Counsel; Ted
Schassberger, Commissioners' Office; Tammy Credicott, Property Management;
media representatives Chris Barker of the Bulletin and Barney Lerten of bend com
and The Bulletin; and five other citizens.
Chair Dennis Luke opened the meeting at 10: 00 a.m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was a Discussion and Consideration of Chair Signature
of Document No. 2003-358, Grant Revision #13 relating to the WIC
(Women, Infants and Children) Program for Fiscal Year 2002-03.
Commissioner DeWolf said that this appears to be a standard revision, adding
$3,000.
This item was placed on the consent agenda for Wednesday, July 30.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 1 of 28 Pages
3. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-093, Formally Recognizing the Regional Childcare
Governance Committee; and a Letter Requesting Federal Funding for the
Regional Childcare Project.
Scott Johnson gave an overview of the problem regarding childcare availability.
An application for a federal grant is being assembled, and this resolution
indicates the County's recognition of the committee as a part of the grant
process.
Commissioner Luke stated that he doesn't want the County to be committed to
the conditions of the grant. Mr. Johnson explained that no County dollars
would be required, and it should not have any impact on the County's general
fund.
He stated that Jefferson County has already signed off, and he expects Crook
County to do so as well.
DEWOLF: Move approval of the resolution and the letter.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
4. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-354, Amendment #3 to the Chemical Dependency
Services Agreement between Deschutes County and the State Office of
Medical Assistance Programs, Clarifying Contract Language.
Roger Kryzanek said that this clarifies language in the chemical dependency
services plan, putting it in line with administrative rules that have been
modified. There is only one substantive change; it lets managed care entities
know that in the future the State will have someone else conduct quality
assurance audits. The other changes are housekeeping matters, with no change
in dollars. A large number of the changes are in response to new HIPAA
regulations.
DEWOLF: Move approval.
DALY: Second.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 2 of 28 Pages
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
5. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-359, an Agreement with Integrated Health
Management regarding the Provision of Methadone Treatment.
Roger Kryzanek said that this contract covers the services of a new provider of
methadone treatment, located in Eugene. Lane County is also a provider, but is
at capacity.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
6. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-182, an Agreement for Attorney Services with Beery &
Elsner, LLP, and Document No. 2003-351, an Intergovernmental
Agreement with the City of Bend to Share Attorney Fees (regarding the
Awbrey Butte LLC Case).
Sue Brewster explained the need for these agreements. There have been
interference issues relating to the Awbrey Butte towers, and the attorney to be
hired is an FCC expert. The City of Bend will pay $5,000 of the cost, about
half, a contract has been signed with the City to cover this situation.
DALY: Move approval.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 3 of 28 Pages
7. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-352 and Document No. 2003-353, Intergovernmental
Agreements with the State Department of Revenue regarding GIS
Mapping Services.
Bob Haas said that these documents provide continued funding for digitally
prepared maps.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
8. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-219, a Service Contract between Deschutes County
and DataStor, LLC for Document Scanning Services.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
9. Before the Board was a Discussion and Consideration of Chair Signature
of a Notice of Intent to Award Contract Letter for the Knott Landfill Cell 3
Rock Crushing Project.
Timm Schimke said that this has been budgeted, and the amount is less than the
original estimate.
DALY: Move approval.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 4 of 28 Pages
10. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-086, Initiating the Vacation of a Portion of Groff Road
(off Rickard Road); and Order No. 2003-080, Vacating said Portion of
Groff Road.
George Kolb stated that this is a 100% vacation, so it does not require a hearing.
DALY: Move approval of Resolution No. 2003-086.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
DALY: Move approval of Order No. 2003-080.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
11. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-355, an Agreement between Deschutes County and
Washington University to Clarify Planning and Environmental Health
Policies regarding On-site Sewage Disposal and Development in South
Deschutes County.
Roger Everett explained that this is an extension of the USGS presentation
regarding the La Pine project. It is an expansion of the computer model, and
new scenarios are to be presented over the next year as a result of the outcome
of alternative systems. There will also be site visits.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 5 of 28 Pages
12. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-346, an Improvement Agreement for the Ridge at
Eagle Crest 45 (a Subdivision in Eagle Crest Phase III).
Paul Blikstad explained that, along with the bond, this assures the completion of
the required improvements.
DALY: Move approval.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
13. Before the Board was a Discussion on Whether to Hear an Appeal of the
Hearings Officer's Decision Granting a Landscape Management Permit
Approval for Cascade Gardens (File #s LM -03-56, A-03-0; Applicant:
Miller; Appellant: Lorenz).
Paul Blikstad gave an overview of the appeal, the proposed use of the property
and its location.
He further said that the request is for a review on the record, not de novo. The
Commissioners are asked to make a decision on Wednesday whether to hear the
appeal; and if they decide to hear it, whether it should be on the record, limited
de novo or de novo.
This decision by the Board is scheduled for Wednesday, July 30, at 10:00 a.m.
14. Before the Board was a Public Hearing on an Appeal of the Hearings
Officer's Denial of Variance Request #V-03-3, Involving Siting a Single -
Family Dwelling (Applicant. Johnson).
Matthew Martin gave an overview of the appeal, and then read his opening
statement (a copy of which is attached as Exhibit A). He then placed the
applicable criteria on an overhead for public viewing.
When asked about pre -hearing contacts, Commissioner Luke stated that he has
only discussed the issue with staff. Commissioners DeWolf and Daly said they
had had no pre -hearing contacts.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 6 of 28 Pages
When asked about ex parte observations, all three Commissioners indicated
they had none.
No challenges were brought forth by members of the audience.
Laurie Craghead reminded the applicant that constitutional issues cannot be
brought up at this time.
DEWOLF:
Is there any way we can just submit this statement into the record instead of
reading the whole thing? We've heard this same language many times.
CRAGHEAD:
Yes.
MARTIN:
The Hearings Officer denied the request for the variance based on the language
specific to the rimrock setback exception criteria of the landscape management
zone. The applicant proposed a single family dwelling on this residential lot
that is 20 feet in height with a setback from the rimrock of ten feet.
Standard setback exception criteria allow a minimum of 20 feet from that
rimrock. The language specifies that no structure, including decks, shall be
located closer than 20 feet from the edge of the rimrock unless the planning
director or hearings body finds that a lesser setback will make the structure less
visible, or the structure is completely screened from the river.
The Hearings Officer found that the proposed structure does not meet this
criterion as it would not be less visible or completely screened from the river.
She also found that because this criterion specifies no structure shall be located
closer than 20 feet unless it is less visible, a variance to this standard cannot be
granted.
The Hearings Officer concluded her review at this point and didn't address the
specific variance criteria. I will go ahead and address those in the event that
you do choose to find differently.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 7 of 28 Pages
DEWOLF:
I don't understand. It seems to me, and I may need some help from Legal
Counsel on this, that if that is the ordinance, isn't the proper thing to do to fix
the ordinance, if the ordinance is the problem? I mean, we can't grant a
variance to something that we don't allow a variance to.
CRAGHEAD:
That is the issue, the interpretation of the code. The Hearings Officer found
that you could not grant a variance to that code provision. The applicant is
saying that you can interpret it such that you can apply the variance code to
that. That's the issue at this hearing, an interpretation issue on whether you can
apply the variance criteria.
DEWOLF:
So, if the goal is to fix the ordinance, rather than fix the ordinance we go
through this process. And if we agree that because of language we can't do that,
we're back at square one, to go back and fix the ordinance. Right?
CRAGHEAD:
You may not want to fix the ordinance. I think the applicant is saying that it is
not a matter of needing to change the ordinance. What they are saying is that
right now, because of the variance criteria, that variance criterion can be applied
to anything in the code in a sense. And even though this says it shall not be any
closer than the footage here, the applicant feels that you can apply variance
criteria.
DEWOLF:
Can we? What do you think?
CRAGHEAD:
I want to go through the hearing, and then I'll let you know.
MARTIN:
I want to follow up, that in the event the Board finds differently than the
Hearings Officer, I wanted to address the area variance criteria for the rimrock
setback exception request.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 8 of 28 Pages
As previously stated in our documents, there are physical constraints of the lot
in buildable area. Specifically, only 80 of the overall 225 of the lot step are
located on top of the rimrock and available for development. So there are some
physical constraints that are unique to the lot itself and not throughout the
general area.
The condition creating the difficulty in this situation is the presence of the
rimrock and the limited portion of the lot located on top of the rimrock and
available for building. The rimrock in the area is undulating and is not
consistent from lot to lot, and is therefore unique to the site.
The intent of the rimrock setback standard is to minimize the visual impacts of
the structure when viewed from the river. There is substantial vegetation
located between the proposed building site and the river. It is staff s opinion
that this vegetation, along with the distance and topographic differences
between the building site and the river will help minimize any visual impacts
created by the development.
With that said, the application does not appear to comply or adequately address
the requirements of the standard being varied is not a self-created difficulty. As
outlined in the variance criteria, a self-created difficulty can be found if the
applicant knew or should have known of the requirement prior to the purchase
of the property.
The current owner of the property, Victoria Johnson, purchased the property in
1993. The current rimrock setback standards of the landscape management
combining zone were adopted in April of 1992, prior to the purchase of the
property. Based on this, staff believes this is a self-created difficulty and the
submitted information failed to prove otherwise. For this reason, staff
recommended denial of the original variance request and not for the reason
specified by the Hearings Officer.
At this time, Chair Luke opened the public hearing.
JIM JOHNSON:
I'm Jim Johnson, 3110 NE Barrington Court, Bend. Victoria Johnson, the
owner of the property, also wishes to testify.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 9 of 28 Pages
I have an earnest money agreement with the owner, Victoria Johnson, for the
purchase of the property. A potential buyer, subject to this approval.
First of all, I want to thank you for your time, since everyone is so busy. Also,
on a procedural matter, can I have her testify in the middle of my testimony?
LUKE:
What would be the purpose of that?
JOHNSON:
Well, I'm going to hit on three points, and will do it as quickly as possible.
Number one, I'm going to rebut the Hearings Officer's denial. Number two, I
want to rebut the planning staff s recommendation for denial. And number
three, I want to talk about the grandfather clause or the non -conforming use that
really should be in the code, that I feel was left out of the ordinance in 1992
when it was written. So I'd like her to testify when I talk about the planning
staff s recommendation for denial, stating that she should have known about the
ordinance.
LUKE:
Let's go through your testimony and then we'll have her testimony, and if you
need to clarify something we can do that then.
JOHNSON:
Okay, that's fine. Number one, I would like to present a memorandum. (He
distributed a memorandum to the Board at this time; a copy is attached as
Exhibit B.)
The table of contents briefly outlines what I will try to hit on this morning.
First of all, the Hearings Officer proceeded over the hearing and then went on
vacation. And when she got back, she gave us a hasty denial by stating -- and
actually her only -- she said you can't do a variance to a variance.
LUKE:
You don't know that she didn't take that case with her on her vacation and study
it then. She gave you a timely decision, but is there anything in the record that
indicates she did this in haste, without the proper deliberation she gives all land
use decisions?
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 10 of 28 Pages
JOHNSON:
No. My understanding of the use of a variance is that the code is written, Matt
was saying that the long-term staff in 1992 wrote this landscape management
code, and then the County Commissioners at that time approved it. I believe
that the circumstances of this small lot was overlooked at the time, because they
were really looking at large parcels of property in the County; whereas this little
lot is more of a city -type lot.
The Hearings Officer equates an exception with a variance. As I understand it,
when the code is written, we try to get all of these general rules that fit what we
are trying to control. And then we go through to try to think of any exceptions
that might fit the law, and put these exceptions in the code. It is my belief that
they missed this exception. It really should be an exception in the code, for this
setback for a small lot.
LUKE: i.
To give you a little clarification, I've been here since 1973 and was the local
president of the homebuilders, and I remember when they were going through
this stuff. They simply did want to be able to see any houses from the river if at
all possible. So to say that they didn't think about this, I think they thought
about it a lot. There was a lot of testimony and I thought they were a little
excessive, but I believe they knew exactly what they were doing at that time.
I'm not saying that all that they did was right.
There was a deal in there that if you had property on the river and went in to get
a building permit, whether for a barn or shed or anything, they were going to
require you to allow public access to your property. We got that one taken out.
JOHNSON:
I'm trying to find in my memorandum the reasoning she used. It was pretty
confusing. I got a chuckle out of it. She used ORS 174.020.2 as her
justification for the denial. And that says, when a general and particular
provision are inconsistent, the latter is paramount to the former so that a
particular intent controls a general intent that is inconsistent with the particular
intent." That was some good legal mumbo jumbo. As far as I am concerned,
the rules should be coming from the Deschutes County code, not from ORS.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 11 of 28 Pages
Anyhow, it's my opinion that she made a mistake by not considering these
criteria. The definition of variance, on the front of the brochure that the County
passes out, says that a variance is a procedure that authorizes a departure from
the literal requirements of the zoning ordinance. The literal requirement is that
it cannot be built closer than 20 feet. So we are asking for a variance from that
criterion.
LUKE:
Now, this is coming back to me from when I read it before. There is nothing --
the septic tank is going on the lot across the road. There's nothing that stops
anyone from building a house on this lot. The problem is how high that house
could be. Is that where we're at?
JOHNSON:
The main problem is how big it can be.
LUKE:
We're talking about height. The setback has to do not with how big the house
is, but how high it is. So there's nothing that says a house can't be built on this
lot, it's just how high.
JOHNSON:
And how close.
LUKE:
The closeness is determined by the height.
DEWOLF:
Well, they go together.
JOHNSON:
A house could be built, but it would have to be small. Very small, under the
current rules.
DALY:
Less than 2,000 square feet.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 12 of 28 Pages
JOHNSON:
My goal is to try to get a 2,000 square foot single level home, with a decent size
garage, and still meet all the setback requirements. I'm asking for ten feet from
the rimrock location that the planning staff determined. The surveyor actually
determined that the rimrock was six and one-half feet closer to the river than the
planning staff did.
I'm suggesting some ordinance changes at the very last, page 3. One of them is
the rimrock setback, one is a height exception, and the last is a rimrock
definition because the rimrock definition is very subjective. In fact, the staff
went out and placed the rimrock setback in a certain place.
DALY:
Who did that?
MARTIN:
Catherine Tilton and I went out initially, and I did revisit the site with the
Hearings Officer and an additional time with Paul Blikstad, just to verify those
locations with another set of eyes.
DALY:
I read here that we've got three different lines with three different opinions
where the rimrock is.
JOHNSON:
Yes, the applicant did include that in his information. Upon additional review
with the second set of eyes, there was some revision but not enough to -- when
you draw arcs from those stakes, it didn't make much of a difference; less than a
foot difference in some areas. It is a subjective standard, but has been verified
by the Hearings Officer that it was the location of the rimrock.
LUKE:
Well, there was no reason to review the difference where the surveyor put it and
where you put it, because the Hearings Officer had already rejected it outright.
MARTIN:
Correct, and we did not.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 13 of 28 Pages
LUKE:
And if this comes back to you, you would take a look at the surveyor's logic and
where they would place it?
MARTIN:
We can always take that into consideration, but ultimately it is staff s or the
Hearings Officer's determination.
LUKE:
The Hearings Officer determines where the rimrock is?
MARTIN:
She did visit the site, and saw where the rimrock was staked on the property,
and determined that did meet the definition of rimrock.
JOHNSON:
The definition is very subjective. I certainly don't fault planning staff. They
have to deal with the ordinance as it is written, and it is very vague and very
subjective. So they are doing their best and are trying to be conservative so that
you're not too close to the rimrock, and I don't envy them their job of trying to
figure out where it is.
Anyhow, I think the Hearings Officer made her error by saying that a variance
cannot be given to this ordinance. If that were true, there was no need for her to
make a visit to the site. If it is not variable, there was no need for her to go out
and look at the site. So I don't know why she would have done that.
Also, I think that staff s recommendation for denial was based on a statement
that the owner should have known in 1993, when she bought this property, that
in 1992 there had been new law written, and that there was a rimrock setback.
They are basing their recommendation for denial on that statement. And I
disagree with that.
I don't think we can expect our everyday citizen out there to know all the
changes in the law all the time. If you say, well, yeah, she should have gone
down and checked, she would have had to have known where the rimrock
setback was. And in 1992, it wouldn't have been the current staff; it would have
been someone else determining where that moving line was. Even at that point
I don't think anyone could have told her exactly where that rimrock is.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 14 of 28 Pages
LUKE:
Your point is that land use laws shouldn't be enforced against people who have
no knowledge of those land use laws?
JOHNSON:
No, in fact the front setback is 20 feet, and I can go out there today and show
you exactly where that 20 feet is. And I think she needs to be aware of where
those 20 feet are. The side setbacks are ten feet on each side. I can go out there
and show you exactly where that setback is today. It's not a variable, subjective
thing. It's a setback and it needs to be adhered to. The rimrock setback is the
variable that is so subjective that we all can't go out and say, this is it.
DEWOLF:
That's a different issue, though. The question that was asked was specific to
when someone purchases a piece of property, they are responsible for the
knowledge of the law that governs the land use of that piece of property. And
you are saying no. I don't understand. If I go buy a piece of property and it is
in an EFU zone, and I want to put in a 7-11, I should be able to do that because
I didn't know it was in an EFU zone? I mean, that's an extreme example but
that's what we are talking about here.
JOHNSON:
Another example that is closer to reality is if you have five acres in an EFU-20
zone, there is a grandfather clause that says if that five acre parcel was created
prior to the zoning ordinance, you could go out there with the proper permits
and build a house on those five acres.
LUKE:
If you are the original owner.
DEWOLF:
Not if you purchased it later.
JOHNSON:
Oh, I see. Okay.
DEWOLF:
That's one of the standards in this country, is buyer beware. Buyers need to
learn what they are allowed to do. I'm just saying, I don't buy that argument.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 15 of 28 Pages
JOHNSON:
That's fair. The thing says she should have known. She'll testify that she didn't
know.
DEWOLF:
And I absolutely believe that's true.
JOHNSON:
Maybe we think she should have known. If you look at the circumstances,
Deschutes County in 1989 allowed a lot line adjustment and gave approval for a
septic tank to be put across the road. The County right now has a 100 -foot
setback from the river, and they have an exception. Actually, I'm skipping
down to my number three item.
And the City also has an exception, "for lots or parcels existing prior to the
adoption of this ordinance where there are buildings on both of the abutting lots
with canyon rimrock setbacks less than the required depth. The setback need
not exceed the average setback of the abutting buildings." So had this been in
the City, we wouldn't even need a variance. It would just be a matter of
submitting our site plan and getting approval, and building a house.
The County has similar rules for the 100 -foot setback, which is the reason I
think they neglected to address this specific situation, of a small lot with a very
small building envelope. In fact, Mr. Martin passed this around to the planning
staff, and they couldn't figure out any time in their history that a situation like
this came up; it's always been a bigger lot.
In my page two, I quoted all the proper DCC's. "Where a dwelling qualifies for
a setback of DCC 18.120, the dwelling may be set back at a distance from the
ordinary high water mark consistent with the adjoining houses. But in no case
shall any part of such dwelling be located closer to the high water mark than the
line extending between the points of the adjoining houses that are closest to the
river."
I maintain that it should be in the ordinance that it is the same for the rimrock
setback as for the high water mark. That when you go into a subdivision, and
there's a house on this side and a house on the other side, and they are sitting
here, and yeah, there's new law, you should have known about it, we're sorry
you didn't, but you should still be able to build equal to or behind the existing
adjacent homes.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 16 of 28 Pages
It's like going up on Awbrey Butte today and buying a lot, and saying you can't
build because we changed the law last month. It's similar, I would think.
LUKE:
Are the houses on this piece you submitted to us?
JOHNSON:
Yes, there's a hand -drawn plot plan.
LUKE:
Are the houses closer than the setback here, or just the decks?
JOHNSON:
Both houses are closer than the setback. I've presented some pictures of the
house on both sides. (A copy of the photos is attached as Exhibit C.)
The top photo, the river is to the right. And then I turned around and took a
picture of the other house, and the river is to the left.
LUKE:
(To staff) Are the houses, the actual structure of the houses, closer than the
setbacks now?
MARTIN:
It appears that they could be directly in line where he is proposing his structure
to be. However, I didn't put much analysis into that because it wasn't a criterion
that we were looking at. It's not part of the rimrock setback standards.
LUKE:
The existing homeowners are aware where the setbacks should be now. The
difference would be the decks. Is there an exception for the decks?
MARTIN:
To be honest, the decks are suspect.
LUKE:
The houses themselves, on either side, line up with the setbacks of the proposed
house.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 17 of 28 Pages
MARTIN:
Relatively close, from what I remember.
CRAGHEAD:
Are the houses in the location of where the applicant wants it to be, or where it
should be?
MARTIN:
Where he would like it to be.
CRAGHEAD:
Okay. So there are other houses that are in line with where the applicant wants
his house to be.
MARTIN:
Correct.
DEWOLF:
So if they were being built today, they'd be too close to the rimrock, too?
MARTIN:
Yes.
DEWOLF:
Can you help me to understand this? Where you've got written 12-1/2 feet
string to 20 -foot rimrock setback, does it refer to the picture above or below?
JOHNSON:
Both. As I read the Deschutes County exception for the 100 -foot setback from
the high water mark, I'm saying it should be the same for the rimrock. And that
says that you take a string from the corner of the one house that is closest to the
river and run it to the corner of the other house that's closest to the river, and the
person building in the middle cannot be any closer than that line.
That's what I did. I went out and ran this string there. And then I measured
back to the stake that staff put in for the 20 -foot setback. The string would
actually allow me to build 12-1/2 feet closer than the setback stake now. I'm
asking for 10 feet.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 18 of 28 Pages
LUKE:
It's tough without a survey. Because this isn't something that has been reviewed by
staff, and we aren't out there and no one has reviewed it to see whether the rimrock
would be closer than to these other houses. We don't know when they were built.
MARTIN:
I believe the house to the east was built in 1989, but I don't know about the other.
LUKE:
Isn't the size of the house itself a self-imposed difficulty? You are asking for an
exception to a self-imposed difficulty.
JOHNSON:
The only self-imposed difficulty that the code identifies is that the owner should
have known about the rules at the time she purchased it. Right now, if you
went by the existing rules, I think you could build a 1200 or 1300 square foot
house. You could build a small house. But you can't pay $125,000 for a lot and
build a 1200 square foot house; it just doesn't pencil. It's not the way it works.
So, Deschutes County does have a rule in there now, I call it the string rule, you
run it from the two points. And if these two homes are sitting closer to the high
water mark, if we were just talking about the 100 foot from the river, I could
build up to that string today. I'm saying that rimrock setbacks should be the
same. If we used the City's rules and regulations, I could build 13-1/2 or 14 feet
closer than the 20 foot setback right now. And I'm asking for 10.
DEWOLF:
The biggest problem that I see with all of this is that what you are requesting is
perfectly logical. And what is in the way has nothing to do with logic. What is
in the way is that you aren't in the City. We do have a code that doesn't allow
it. And I'm not sure how to get there with this process.
JOHNSON:
Well, I'm asking for the variance, which was denied. That's why I'm here. I'm
appealing. I think I stated in the last page, I'm asking for less than what the
City would allow, and I'm asking for less in Deschutes County had the code
been written properly in the first place. It is a variable ordinance, and I'm
saying that it can be varied. The planning staff could have said yes, the
Hearings Officer could have said yes, this is okay, you can build here.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 19 of 28 Pages
The four criteria I believe have been met for a variance. Vicki Johnson is going
to suffer financially substantially if she can't sell this lot, or if a 1200 square
foot house has to be built way back from the rest of them. She's going to lose
substantial money, as the lot wouldn't be worth what she needs.
LUKE:
Is the 100 -foot setback because of the scenic waterway?
MARTIN:
I believe that coincides with both the state and federal program for the scenic
waterway.
KEVIN HARRISON:
Our 100 -foot setback applies to all properties that abut the river. It doesn't
matter whether it is in the scenic waterway or not.
DEWOLF:
Did the County and City work together on their ordinances? They were
adopted at about the same time.
HARRISON:
The County did its first, and then the City adopted their standards sometime
after that. I just want to be clear about what Mr. Johnson is talking about.
County rules talk about setbacks for riverfront lots as measured from the
ordinary high water mark. There are specific exemptions to the 100 -foot
setback that don't apply to rimrock.
If I understand his argument correctly, they ought to. I think that is a question;
you can't apply the standards for the exemption to the 100 -foot setback to this
rimrock situation. That would require a text change. I just want to make sure
you're aware of this.
DEWOLF:
That's why I'm concerned that this isn't the process that will get us there. I'm
going to need some legal help with that.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 20 of 28 Pages
CRAGHEAD:
I believe you're right. After hearing this testimony, I agree with the Hearings
Officer that what Mr. Johnson thought was legal mumbo jumbo boils down to the
specific governs the general. The variance is a general provision, and where you
have a specific exemption to the rimrock setback, that overrules the variance.
However, if the Board should chose that the variance criteria applies, I think we
do have a problem with the self-imposed difficulty, both in the fact that the law
was in effect prior to the purchase of the property, and also that the size of the
house is a matter of personal choice. If there were to be other exceptions, it
would be an ordinance change as opposed to going through a variance. This is
a different application, and cannot be done in this quasi-judicial process.
JOHNSON:
May I ask a question? Do you feel that this ordinance can't be varied?
CRAGHEAD:
Correct. I also feel that you don't meet it even if it could be varied. But I'm not
the decision -maker.
JOHNSON:
The point I would like to make, is that as a citizen I go down to planning and
say I want to buy this lot, can I build a house here, I was told at first yes, if there
is ever a need for a variance, you meet it, and I got the go-ahead. Then I
applied for it, paid my money, and it was then recommended that the owner
should have known about this lot.
My point is, when I go down to the planners, if they would have told me that
the specific overrules the general and there's no way you can get a variance and
build a house, I've been in real estate long enough to say fine, I'll find another
piece of property. I'm sitting here now about $5,000 and eight months later
trying to build a 2,000 square foot home, equal to or behind these other two
homes, and go on with my life. It's not happening.
DEWOLF:
What I am trying to say is, I agree. I don't know what these two gentlemen
think, but I agree with you. It's logical that you ought to be able to build up to
those two houses. I don't have a problem with that. The problem I have is that
I think for me to do it through this process is illegal. That's what I felt since I
read all of this stuff.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 21 of 28 Pages
However, to get you where you want to go, to come and propose an ordinance
change that modifies the ordinance, that would apply Countywide because
everything we do here sets precedent. If I personally set the precedent of
breaking the law in order to do what is logical, that's a horrible precedent for me
to set. However, because I think what you want to do is logical, and if Mike
and Dennis agree that it is logical, for us to modify the ordinance to allow this
to happen, that to me seems the proper way to do this. And it would help other
people, if there were any, in the same situation.
Have I said anything that is wrong or illegal?
CRAGHEAD:
No.
DEWOLF:
Is this a possible solution or a legal solution?
CRAGHEAD:
Yes. I can understand how it would be a disappointing process for Mr. Johnson
because there would be another application fee.
DALY:
So what is the process to change the ordinance?
CRAGHEAD:
It would be a matter of Mr. Johnson filing an application for a change in the
zoning ordinance, and then it would be a matter of staff reviewing the
application, going through a Planning Commission hearing as well as the Board
hearing. And staff knows better than I how long that would take.
LUKE:
You'd also want to know what other properties are affected before you set the
precedence. That would be very important.
If you want to move something through, you could have a joint hearing.
DEWOLF:
We could pull it up without going through the Planning Commission, can't we?
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 22 of 28 Pages
CRAGHEAD:
I'm not sure.
DEWOLF:
To modify an ordinance to allow you to pull a string between two lots, and this
situation, I'd like to try to simplify this as much as possible. I mean, how much
difficulty can that create here?
MARTIN:
With rimrock being so irregular and undulating from location to location, that
drawing a string could put a structure completely overhanging a gap in the
rimrock or things like that. Although building does has its own standards for
rimrock setbacks as well. I'm not sure what the building division or uniform
building code would say. But rules can be written to address that as well.
I'll also clarify that you cannot up a legislative matter. It says, "No legislative
change shall be adopted without review of the Planning Commission". That's
our code.
JOHNSON:
As I stated, I still feel that the criteria for the variances have been met. I would
also like to say, for the record, that the City adopted its water overlay zone in
November 2002, and I believe that the County wrote the whole thing and the
City came in and overwrote it, and probably put in their setbacks for smaller
lots, closer than the 20 feet.
Also, the County code says that for every foot you get closer beyond the 20
feet, you have to come down in height. So technically by where staff put the 20
foot setback and where I'm asking for it, I'd have to build a 10 foot high house.
So I'm also asking for a variance from the height restriction. The City has said
that 20 feet is the maximum height if you go any closer than 20 feet. I'm
agreeing with that.
LUKE:
If you put a line between the houses and a string from the ridge of one house to
the other, you'd stay below that ridge and inside that line?
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 23 of 28 Pages
JOHNSON:
Yes. The one house is two stories. It's going to be fun getting a house
approved here. I'm not sure Vicki Johnson needs to testify. She's going to
come up and say she had no idea about it. And it sounds like that's too bad.
LUKE:
I mean, you're welcome to testify.
JOHNSON:
I guess that's all, unless you have questions of the owner.
MARTIN:
I would like to clarify a couple of points that were made. I just wanted to
indicate that the Hearings Officer did make her site visit, both to identify and
confirm the location of the rimrock that was staked, as well as to get some of
the site characteristics to see if the structure could be less visible from the river
if sited closer than the required 20 feet, or completely screened. So she was
there to confirm those things.
The lot line adjustment and septic approval was granted in 1989, but didn't
necessarily indicate that a structure could be located within the rimrock setback
standards. It just identified that a septic system could be established on the
other side of the road, but didn't specify the size or location of a dwelling.
And, as Mr. Johnson indicated, as I looked to staff for advice on the history of
variances or requests to encroach within this 20 foot setback, there was no
known history of such a request - any lot within the landscape management
zone. Because of that lack of history, we opted to have him apply for a
variance and then take it directly to a public hearing for a legal interpretation.
That was the reason for that process. I did indicate in verbal communications
that there are a lot of characteristics of the lot that do lend themselves to a
variance. However, because we didn't have any history on these standards, it
had to be handled in this way.
JOHNSON:
I have a question. Do I see any encouragement to try to get a code change or
rewrite or whatever?
Chair Luke then closed the public hearing.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 24 of 28 Pages
CRAGHEAD:
No one has asked that the record be left open, so if you want you can go straight
to a decision or take time to deliberate.
LUKE:
Will any of the Commissioners be visiting the site?
DALY:
I don't see a need to visit the site. I do think that the applicant has a very good
argument. Unfortunately, as everyone has said, land use law doesn't always
make sense. This is one of those cases. I would certainly be open to the
process if he wants to apply to get the ordinance changed.
LUKE:
Who would draft that language? It's fairly complicated, since the rimrock
varies.
DEWOLF:
What if you approached it from a different perspective, and wrote something
that would allow for a variance? So then it could be dealt with on a case-by-
case basis. Our problem right now is that we have an ordinance that doesn't
allow for a variance.
CRAGHEAD:
If you are choosing to interpret the code that way.
JOHNSON:
And I disagree with that.
LUKE:
I have to let you know, the public hearing is closed. And under land use law,
we're discussing this with staff.
DEWOLF:
I respect that. Logically, I believe that it is illegal. Then I ask our legal counsel,
and she says it is. What would help is if you had an attorney here who could
argue that point. Honestly, the logic is not what is carrying the day here. It's
the legal technicalities.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 25 of 28 Pages
And I have to trust the only lawyer in here giving advice. If we had another
lawyer to argue the other side of this and who could make some sense of it, that
would help. I don't know how to get there from here.
LUKE:
We could leave the record open for a couple of weeks if the applicant wants to
consult with counsel. Where are we with time?
CRAGHEAD:
It was extended to October 3. You could leave the written record open for two
weeks.
DEWOLF:
What I am suggesting is that he hire Bob Lovlien, Nancy Craven or another
land use attorney to look at this and possibly present another interpretation.
DALY:
That's fine with me.
LUKE:
I'd be happy to do that.
CRAGHEAD:
You could choose to interpret the code differently. You'd be setting precedent
in any case.
18j.114
The written record will remain open until Friday, August 29, at 5:00 p.m., and
all documents should go to Mr. Martin.
15. Before the Board was a Discussion of a Public Hearing regarding the
Annexation of Wickiup Junction Territory into the La Pine Water District,
and Consideration of Signature of Order No. 2003-076, Approving the
Annexation.
The public hearing on this annexation is scheduled for Wednesday, July 30, at
10:00 a.m.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 26 of 28 Pages
16. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-026, Authorizing the Sale of County -owned Property
Not Needed for Public Use (Brosterhous Road, Bend, and Burgess Road,
La Pine).
Tammy Credicott said that this property was originally purchased by the Road
Department using gas tax funds. Both parcels consist of about five acres, and
one is in Bend, the other in La Pine. The Brosterhous appraisal has been
completed, and the Burgess Road appraisal is expected in about a week.
Tom Blust said that the Road Department has utilized the Burgess Road parcel,
but it has been cleaned up. It was used primarily to stockpile rock, and no gas
tanks have been located on the property; nor have vehicles been stored there.
At this time the Commissioners and Ms. Credicott discussed the situation
regarding the Brosterhous property's water rights. Further investigation will be
done on how this should be handled. At this time Commissioner Luke wanted
it to be known on the record that his wife, Joanne, is on the board of Arnold
Irrigation District.
DEWOLF: Move approval of Resolution No. 2003-026.
DALY: - Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
17. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-091, Transferring Appropriations within Juvenile
Community Justice Funds, in the Deschutes County Budget for Fiscal Year
2003-04, and Directing Entries.
DEWOLF: Move approval of Resolution No. 2003-091.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 27 of 28 Pages
18. Before the Board were Additions to the Agenda.
None were offered.
Being no further items brought before the Board, Chair Luke adjourned the
meeting at 11:50 a.m.
DATED this 28th Day of July 2003 for the Deschutes County Board of
Commissioners.
�2
ennis R. Lu , C air
Tom DeWolf, Commissioner
ATTEST:
Recording Secretary
Attachments:
Exhibit A: Opening statement, Jim Johnson appeal 4V-03-3
Exhibit B: Johnson Memorandum regarding appeal
Exhibit C: Copies of photos, Johnson appeal
Exhibit D: Memorandum of Understanding between Juvenile Community Justice
and Adult Parole & Probation regarding the use of a vehicle and yard
maintenance
Exhibit E: Copy of Letter Amendment extending the expiration date of a
Department of Environmental Quality Solid Waste Grant
Minutes of Board of Commissioners' Work Session Monday, July 28, 2003
Page 28 of 28 Pages
APPEAL OPENING FOR PUBLIC HEARING
Introduction•
This is a public hearing on an appeal of the Deschutes County Hearings Officer findings and
decision for V-03-3, a variance request to the rimrock setback standards of the Landscape
Management Combining Zone.
The variance application was previously considered by the County Hearings Officer after a
public hearing held on April 15, 2003. Evidence and testimony were received at that hearing.
The Hearings Officer denied the variance request in a written decision dated May 23, 2003.
Burden of Proof and Applicable Criteria:
The applicant has the burden of proving that they are entitled to the approval sought. The
Planning Staff will read the applicable criteria during the Staff Report given.
Hearings Procedure:
The procedures applicable to this hearing provide that the Board of County Commissioners will
hear testimony, receive evidence and consider the testimony, evidence and information submitted
into the record, as well as that evidence constituting the record before the Hearings Officer. The
record as developed to this point is available for public review at this hearing.
Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice
of this hearing, which will be read by the Planning Staff during the Staff Report. Testimony
may be directed to any other criteria in the comprehensive land use plan of the County or land
use regulations which any person believes apply to this decision.
Failure on the part of any person to raise an issue with sufficient specificity to afford the Board
and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land
Use Board of Appeals on that issue.
Order of Presentation:
The hearing will be conducted in the following order. The Staff will give a report on the prior
proceedings and the decision of the Hearings Officer. The applicant (Jim Johnson) will then
have an opportunity to make a presentation and offer testimony and evidence. The appellants
will then be given a chance to make a presentation. After both proponents and appellants have
made a presentation, the Board may allow rebuttal statements at the Board's discretion. At the
conclusion of this hearing, the staff will be afforded an opportunity to make any closing
arguments. The Board may limit the time period for presentations.
Questions to and from the chair may be entertained at any time at the Board's discretion.
Cross-examination of witnesses will not be allowed. However, if any person wishes a question
Exhibit A
Page 1 of 2
be asked of any person during that person's presentation, please direct such question to the chair
after being recognized. The Chair is free to decide whether or not to ask such questions of the
witness.
Pre -hearing Contacts:
I will now direct a question to the other members of the Board of County Commissioners. If any
member of the Board, including myself, has had any pre -hearing contacts, now is the time to
state the substances of the contacts so that all persons present at this hearing can be fully advised
of the nature and context of those contacts and with whom contact was made. Are there any
contacts that need to be disclosed?
At this time, do any members of the Board need to set forth the substance of any ex parte
observations or facts of which this body should take notice concerning this appeal?
Any person in the audience has the right during the hearings process to rebut the substance of
any communication or observation that has been placed in the record.
Challenges for Bias, Prejudgment, or Personal Interest
Any party prior to the commencement of the hearing may challenge the qualifications of the
Board of County Commissioners or any member thereof of bias, prejudgement or personal
interest. This challenge must be documented with specific reasons supported by facts.
I will accept challenges now.
Should any Board member be challenged, the member may disqualify himself or herself,
withdraw from the hearing or make a statement on the record of their capacity to hear the appeal.
Hearing no challenges, I shall proceed.
Staff report
Exhibit A
Page 2 of 2
Applicant's
Memorandum
V-03-3
Exhibit B
Page 1 of 9
TABLE OF CONTENTS
Rebuttalof Hearings Officer's Denial.....................................................................1
Definitionof Variance.................................................................................1
Definitionof Exception ...............................................................................1
Summary................................................................................................1
Rebuttal of Planning Staffs recommendation for denial................................................2
Summary..................................................................................................2
Grandfatherclause — Non -conforming use..................................................................2
Cityof Bend..............................................................................................2
DeschutesCounty.........................................................................................2
Summary....................................................................................................3
SuggestedCode Changes.........................................................................................3
RimrockSetback.....................................................................................................................3
Heightexception.......................................................................................................................3
Rimrockdefinition...................................................................................................................3
Exhibit B
Page 2 of 9
I Rebuttal of Hearings Officer's denial
The Hearings Officer erred by defining a variance the same as an exception.
Deschutes County ordinances are full of exceptions. Exceptions are an important part of
our zoning ordinances. We have Variances so we can deviate from the ordinance and its
exceptions when they don't fit a particular situation. A variance and an exception are two
completely different things. According to Deschutes County Ordinance Chapter
18.04 the definition of "Variance" is:
...... an authorization for the construction or maintenance of a building or structure, or for
the establishment or maintenance of a use of land, which is prohibited by a zoning
ordinance." The ordinance prohibits building closer than 20 feet from a "rimrock" with
one exception. I have requested a variance from that ordinance.
The front cover of the VARIANCE PROCEDURE pamphlet issued at the
planning department states: "DEFINITION: A Variance is a procedure that authorizes a
departure from the literal requirements of the zoning ordinance. Variances fall into two
(2) categories: a. Area Variance -allows for a departure of one or more dimensional
requirement of the ordinance (e.g., setbacks, building height, and minimum lot size)."
According to Webster the definition of "Exception" is:
"1. The act of excepting or the fact of being excepted. 2. Something excepted; an
instance or case not conforming to the general rule."
The hearings officer uses ORS 174.020(2) as her justification for denial.
"174.020 Legislative intent: general and particular provisions: consideration of
legislative history. (2) "When a general and particular provision are inconsistent, the
latter is paramount to the former so that a particular intent controls a general intent that is
inconsistent with the particular intent." This is some of the best legal mumbo jumbo I've
heard. It is not relevant in this instance. The Hearings Officer had just returned from
vacation when she issued her opinion on the last legal day to do so. She was busy and
took the easy way out. This should not be allowed. She did not address the variance
criteria as she should have. All the criteria for the variance have been met and the
variance should be approved. The Hearings Officer agreed with everything the planning
staff said.
The planning staff never mentioned anything about ORS 174.020(2).
The citizens of Deschutes County should be able to go to our planning department
and get straight answers to our building questions. I was told that if there was ever a case
for a height and rim rock setback variance this was it.
SUMMARY
The hearings officer erred when she did not consider the facts of this case. Ruling
law should come from the DCC not ORS. She erred when she said a variance of an
exception is not legal. If the hearings officer's denial was common sense the planning
staff should have known that and informed the applicant. If the hearings officer's denial
was common sense she should not have spent the time doing a site visit.
PAGE 1 OF 3 - APPLICANTS MEMORANDUM V-03-3 Exhibit B
Page 3 of 9
II Rebuttal of Planning Staffs recommendation for denial.
The planning staff originally told me that if ever there was a case to use a
variance on the rim rock set back this was it. Then after I applied and paid my money
they recommended denial by quoting DCC 18.132.020(A)(3) incorrectly. See
APPLICANT'S MEMORANDUM, V-03-3, paragraph 5. The planning staff agreed
with all other aspects of the Variance with this one exception. The owner did no*bout
the rimrock setback law. Even if she somehow knew there should be a grandfather
clause. Anyone would expect to be able to build when there are homes on either side
and the county had recently approved a minor partition.
SUMMARY. 1. There is no public benefit from denying this variance. There is
however great private expense if it is denied. 2. This condition was created by
Deschutes County and it is the only lot of its kind. 3. This condition was created by
Deschutes County and it is not a "self created difficulty". 4. This variance conforms to
the Comprehensive Plan and the intent of the ordinance. All requirements for a variance
have been met and the application should be approved.
III Grandfather clause -Non -conforming use.
CITY OF BEND. This is a city sized lot in the county. Had this lot been within
the city of Bend a variance would not have been needed. WATER OVERLAY ZONE
Page 12, 3. D. "For lots or parcels existing prior to the adoption of this ordinance, where
there are buildings on both of the abutting lots with canyon rim setbacks less than the
required depth, the setback need not exceed the average setback on the abutting
buildings." Using these criteria a home could be sited 3 1/2 feet closer to the rim than is
being requested on this property. WOZ limits a homes height to 20' or less on any home
closer than 20 feet to the rim rock. 20 feet is a minimum acceptable height in today's
construction for a modern home with 10 foot ceilings.
DESCHUTES COUNTY. No one on the Deschutes County Planning staff
could remember there ever being a case like this in Deschutes County before. Most
parcels of land on the river are much larger and don't have abutting homes on both sides.
It's believed when the DCC was written by staff and approved by the County
Commissions in 1992 this circumstance addressing the rim rock set back and height
restrictions on small lots was overlooked. DCC provides a grandfather clause for the
set back from the high water mark. DCC 18.120.030(E)(3)(e) allows a home to be built
that exceeds the 100 foot set back when: "e. Dwellings exist on both adjoining lots
that are closer to the stream or lake than the proposed dwelling and such existing
dwellings are located within 40 feet of the proposed dwelling." The code goes on to
say: DCC 18.120.030(E)(4)(b). "Where a dwelling qualifies for a setback by virtue
of. DCC 18.120.030(E)(3)(e) , the dwelling may be set back at a distance from the
ordinary height water mark consistent with the adjoining houses, but in no case
shall any part of such dwelling be located closer to the ordinary high water line that
a line extending between the points of the adjoining houses that are closest to the
river."
PAGE 2 OF 3 - APPLICANTS MEMORANDUM V-03-3
Exhibit B
Page 4of9
Using the criteria that should have been placed in the DCC in 1992 this request
for a variance falls approximately 2 1/2 feet short of the line between the points of the
adjoining houses that are closest to the rim rock/river. In other words we are asking to
be 2 1/2 feet farther from the rimrock than this criteria would allow.
DCC requires a home's height to be equal to or less than the distance of the
home from the rim rock. Using the staff's determination of the rim rock edge and the
DCC height code the home would have to be 10 feet high. Once again the DCC written
in 1992 did not take into consideration small narrow lots with homes on both sides.
There should be a height exception written in the code attached to a rim rock set back
grandfather clause limiting homes closer than 20 feet to the rimrock to a maximum of 20
feet tall. 20 feet is a height that still allows for a modern home to be built.
SUMMARY
The planning staff and the hearings officer erred in denying the variance request.
The problem however lies with the inadequacy of the DCC addressing this property and
any small lots that may be like it. All of the criteria for a variance have been met and the
variance should be approved. The variance requested is more conservative than city
requirements and more conservative than the requirements of the DCC had it properly
addressed small lots in 1992. The proposed home is of modest size and minimum height
and conforms to the intent of the ordinance. The variance should be granted.
SUGGESTED CODE CHANGES
Rimrock setback. The same verbiage and criteria should be used that is used in
the CDD for the exception for the 100 for setback from the ordinary high water mark.
Height exception. A height exception should be entered stating that 20 feet is
the maximum height allowable on any home that qualifies for being sited closer than 20
feet to the rimrock edge.
Rimrock definition. The definition of rimrock edge should be dropped. The
city of Bend does not have an official definition. They could not come up with one that
was consistent with all situations. Deschutes County's definition is much too subjective.
The city allows the "professionals", surveyors, designers, builders etc. to determine the
rimrock edge subject to approval of a site plan review by planners. The surveyor placed
the "rimrock edge" on this property approximately 6 1/2 feet closer to the river than the
county staff's second rim rock location.
PAGE 3 OF 3 - APPLICANTS MEMORANDUM V-03-3 Exhibit B
Page 5 of 9
Chapter 18.132. VARIANCES
18.132.010. Variance application.
18.132.020. Authority of Hearings Body.
18.132.025. Minor variances.
18.132.030. Hearings Body action on
variance.
18.132.040. Variance procedure.
18.132.010. Variance application.
The Planning Director or Hearings Body may
authorize area or use variance from the
requirements of DCC Title 18. Application for a
variance shall be made by petition stating fully
the grounds of the application and the facts relied
upon by the petitioner.
(Ord. 91-020 § 1, 1991)
18.132.020. Authority of Hearings Body.
A variance may be granted unqualifiedly or may
be granted subject to prescribed conditions,
provided that the Planning Director or Hearings
Body shall make all of the following findings:
A. Area variance.
1. That the literal application of the
ordinance would create practical
difficulties resulting in greater private
expense than public benefit.
2. That the condition creating the difficulty
is not general throughout the surrounding
area but is unique to the applicant's site.
3. That the condition was not created by the
applicant. A self-created difficulty will
be found if the applicant knew or should
have known of the restriction at the time
the site was purchased.
4. That the variance conforms to the
Comprehensive Plan and the intent of the
ordinance being varied.
B. Use variance.
1. That the literal application of the
ordinance would result in unnecessary
hardship to the applicant. An
unnecessary hardship will be found when
the site cannot be put to any beneficial
use under the terms of the applicable
ordinance.
2. Each of the findings listed in DCC
18.132.020(A)(1), (2) and (4).
(Ord. 93-043 § 24,1993; Ord. 91-020 § 1, 1991)
18.132.025. Minor variances.
A variance seeking to depart from on-site
requirements of DCC Title 18, such as setbacks
and area requirements, by no greater than 1.0
percent of the required distance or area may be
granted by the Planning Director or Hearings
Body in conformance with DCC 18.132.025.
A. In the case of a setback or size variance, the
applicant shall show that the approval will
result in:
1.. More efficient use of the site;
2. Preservation of natural features where
appropriate;
3. Adequate provision of light and privacy
to adjoining properties; and
4. Preservation of topographic, vegetative
and drainage features which would be
adversely affected by application of the
standards otherwise required by DCC
Title 18.
B. A lot line adjustment varying no more than
10 percent from standard dimensions as
specified in DCC Title 18 may be approved
without a variance for lots that are already
nonconforming.
(Ord. 91-038 § 3, 1991)
18.132.030. Hearings Body action on
variance.
In granting or denying a variance, the Planning
Director or Hearings Body shall make a written
record of his findings and the facts in connection
therewith, and shall describe the variance granted
and the conditions designated. The Planning
Department shall keep the findings on file, and a
copy of the variance granted and the condition
thereof shall be recorded with the County Clerk.
(Ord. 91-020 § 1, 1991)
18.132.040. Variance procedure.
The variance application shall be processed
according to the terms of DCC Title 22, the
Uniform Development Procedures Ordinance.
(Ord. 91-020 § 1, 1991)
Chapter 18.132 1 14/2001
Exhibit B
Page 6 of 9
Exhibit B
DOCUTNENT POOR QUALI TY Page 7 of 9
ATTIME OF RECORDING.
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Exhibit B
DOCUTNENT POOR QUALI TY Page 7 of 9
ATTIME OF RECORDING.
— S54'41'27"W
8.04' (R1 & M) NOTE: NO ORIGINAL CURS
IRON RODS WERE
E FOUND ALONG CURVE
�S h61�1� THE RIVER R=13C
�c,G S O,L6 hg • ti L=81.:
O Ml ss� C=81.:
3� 3r �1
CURVE
s6°�65 l�1 ti �o s4 LOT 24 �'
2b' set rising 3' %P 6', �y
R=8=13C f
�>
C=81.1
Off, ��
N 5T
Jr. O
a �-
O� �s
CURVE
In
� J>
a� J
Fa
CA=03'
R_8�
V36'. LOT 25
a:
LOT 26
����
0-1 a 6'
E 0
C=81.
0\i
CURVE
a{
x`0,6'3 / ��
Found 1" pipe
CA=03
R=13
a
as
Rising 2
dp
L=81 .
C=81a
l 50
a� 1Nrbb
N 61'0,
�O ti
J .00.
b"bkcj / set
Q�
/�'
p � 5 lbg / rising j f��
`'
LOT 27 2
IRON
RODS WERI
NOTE: NO ORIGINAL
Found 1/2" Iron Rod /
\�0 No 12" Set flush
FOUND NORTHEAST
OF THIS P(
Cap rising
/ ® sem rising 2" %P %P
\�o / set rising 6"
5 `�
��s-SLOT X64
d?
�
y
-3 00
Found 5/8" iron Rod a a >
No, Cap rising 6'Via.
o •6,
Note: Comer falls South W ate
21'27'33" East 1.10' `P- SOUTH �'
o
from true position fromvit3` 1 /2
radius point 6' as LOT 63
1 O�
O
LOT 62 LOT 63
6' �iflset rising 6"a
' 3$
"
SCALE: 1 =60 LEGEND set rising 3'� 5� �,� l' N
1
bt-
Monuments of Record Found • >✓ g13$ 11
Monuments Set this Survey o
(5/8 % 30" rods do caps mkd. KARL PLS Found 1" Pipe
Record Data from Plat of River (R)1 Set flush S 6b; �O
Bend Estates. S
Measured Data this survey (M)
Exhibit B
Page 8 of 9
517E FLAN
LOT 26
RIVER BEND ESTATES
DESCHUTES COUNTY, ORE,
SCALE, 1"•30'
A��
b
PROPOSgp
RESOENCE
Exhibit B
Page 9 of 9
,�. 41
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st
MEMORANDUM OF UNDERSTANDING
YARD MAINTENCE IN EXCHANGE FOR USE OF
FORD PICKUP (County ID#7-968) BETWEEN
ADULT PAROLE AND PROBATION AND JUVENILE JUSTICE
This memorandum is intended to establish and clarify the agreement between Deschutes
County Adult Parole and Probation and Deschutes County Juvenile Justice wherein
Juvenile Justice provides yard maintenance for Parole and Probation in exchange for the
use of Parole and Probations Ford pickup (county ID#7-968)
It is hereby agreed to as follows:
2.
3.
4.
5.
6.
DURATION: The effective date of this agreement shall be from July 1, 2003 to
June 30, 2004. This agreement may be renewed for another one year period,
subject to the prior agreement of both parties.
TERMINATION: Either party upon thirty (30) days written notice may terminate
this agreement.
EXCHANGE: The Juvenile Justice Department will provide yard maintenance
for Adult Parole and Probation in exchange for the use of Parole and Probation's
Ford pickup (county ID#7-968)
RESPONSIBILITIES OF JUVENILE JUSTICE: The Juvenile Justice
Department will provide a work crew once a week to mow and maintain the lawn
surrounding the Parole and Probation building, weed, plant and provide general
cleanup services.
RESPONSIBILITIES OF ADULT PAROLE AND PROBATION: Adult Parole
and Probation agrees that Juvenile Justice may use the Ford pick up at its
discretion provided a county employee is operating the vehicle. Adult Parole and
Probation will continue to be responsible for maintenance but not for fuel.
ADDITIONAL TERMS: In the event of major damage to the vehicle caused
while in the possession of Juvenile Justice, Juvenile Justice will be responsible for
the repairs.
At no time will an individual other that a county employee be allowed to operate
the vehicle.
hvltv�-A�
-7/L o
Becky Jack#o Qirector Date
Deschutes County Ad t Parole d Probation
-�v2
Jen MsCounty
n, Director Date
Deschu Juvenile Justice
Exhibit C
Page 1 of 1
DC�2®a3-7364
LETTER AMENDMENT
EXTENDING THE EXPIRATION DATE OF A DEQ SOLID WASTE GRANT
To: Deschutes Co
Recipient of Grant
From:
Signature and date
DEQ Project Officer's Signature and Date
Re: Amendment No: 1 to Agreement No: 095-02
Effective Date: June 30, 2003 or when signed by all parties
ol
Deschutes County in conjunction with COCAAN would like a grant extension from
June 30, 2003 to September 10, 2003. This request was made by e-mail from
both Deschutes County and COCAAN (Sweet Pea Cole) through several e-mails
dated May 21, June 6 and July 8, 2003 to DEQ (Susan Christensen).
COCAAN has another, simultaneous, construction project on the property where
the Walk -In Cooler will be installed. The original plans (for the other project -Head
Start facility) indicated there would not be any conflict between these two
construction projects. The initial plans indicated a trench would be dug well out of
the way of the Walk -In Cooler project. Unfortunately, a last minute change in the
Head Start plans has relocated the trench to just below the site of the Walk -In
Cooler. In order to err on the side of caution, and allow for any other unforeseen
construction delays, we are requesting an extension.
In response to your written request, I authorize the extension of the expiration date of
this agreement:
FROM (previous expiration date) June 30, 2003
TO (revised expiration date) September 10, 2003
Region Approval:
Sol id/lllastenager's Signature ate
E:\winword\grants\amendment-extension.doc
Exhibit D
Page 1 of 1