2003-1239-Minutes for Meeting September 08,2003 Recorded 9/9/2003COUNTY
TES
FICIAL
NANCYUBLANKENSHIP,F000NTY CLERKS w 2003.1239
COMMISSIONERS' JOURNAL
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2003-IZ30
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.oriz
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, SEPTEMBER 8, 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; Susan Ross and Ted
Schassberger, Commissioners' Office; Laurie Craghead and Mark Pilliod, Legal
Counsel; Elaine Severson, Health Department; George Read, Paul Blikstad and
Matthew Martin, Community Development Department; media representative
Chris Barker of the Bulletin; and one other citizen.
Chair Dennis Luke opened the meeting at 10: 02 a.m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was a Discussion the Reading of a Proclamation
Declaring September as National Youth Court Month in Deschutes
County, and a Presentation to be Given by the Bend Teen Court (please
note: a brief videotape — about 6 minutes in length - will also be played on
Wednesday) — Mary Fleischmann, Sheriff's Office
This item will be addressed at the Wednesday, September 10 Board meeting.
3. Before the Board was a Discussion and Consideration of Signature of
Document No. 2003-400, an Intergovernmental Agreement between
Deschutes County and the State Department of Human Services regarding
Medicaid Administrative Match Claiming (MAC) Billing.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 1 of 13 Pages
Elaine Severson explained that this is a new contract for a new system to help
with revenue generation; it could result in revenues up to $25,000 per year.
DE WOLF : Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
4. Before the Board was a Discussion and Consideration of Approval of
Proposed Changes to County Code, Changing the Name of "The Project
Impact Steering Committee" to "The Project Wildfire Steering
Committee".
George Read stated that the Project Impact name had been used under the
previous federal administration, and has since been changed. There is an active
committee handling the efforts of Project Wildfire, with wildfire being a main
focus; but their work also includes addressing hazard mitigation and issues
relating to extreme wind, volcanoes, floods and earthquakes. Oregon State
University will provide staffing through an intergovernmental agreement.
The Committee will be reviewing the proposed ordinance on Tuesday, and it
will come before the Board on Wednesday.
This item will be addressed at the Wednesday, September 10 Board meeting.
5. Before the Board was a Decision on the Appeal of File #s A -03-8/V-03-3,
regarding the Hearings Officer's Denial of a Setback Variance Request
(Applicant. Johnson).
MATT MARTIN:
We originally met on July 28 for a hearing on this appeal. The record was left
open until August 29. The applicant did submit a brief statement or comments
during that time period, and you would have received copies of that.
The main issue, to kind of recap, is that the Hearings Officer found that the
rimrock setback criteria, or exception criteria, did not allow for a variance to
those criteria, based on the language within the code. The applicant appealed
that finding, saying that it could be varied.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 2 of 13 Pages
At this point, we have two things to consider or decide. First, does the
exception criterion preclude approval of a variance? If so, that would uphold
the Hearings Officer's decision. If not, we'd have to go further and find if the
variance request meets the criteria for a variance.
DEWOLF:
Regardless of how we rule on this today, how do we correct a flaw in our
ordinance?
LAURIE CRAGHEAD:
To answer that question, if you so perceive there is a flaw in the ordinance, then
it would be a matter of doing an ordinance change, and going through the land
use process, with the 45 -day notice, the DLCD, and all that.
LUKE:
I would point out that some people might perceive it as a flaw, but there are land
use changes all the time that people are grandfathered in, because they were
already there. And because you bought your land later or something, they could
say, they could do it, why can't I, because the law changed. I don't necessarily
consider that a flaw. That happens to a lot of people in a lot of cases.
CRAGHEAD:
I also wanted to point out to the Commissioners that there is one other issue that
the applicant brought up, and I forgot to discuss this with Matt. That is, he feels
that another issue is where, exactly, is the rimrock. Because if you do this
according to his expert, the issue of the setback is not there. He believes it is in
a different place, if I recall. Matt can clarify that.
MARTIN:
Yes. He included in his testimony that his surveyor had marked the rimrock
location on the property, and that varied from where staff had marked it. With
that, he felt that there is room for interpretation. But it still would require a
variance to build in his location regardless of the surveyor's marks.
CRAGHEAD:
It would just be less of a variance.
MARTIN:
Correct.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 3 of 13 Pages
LUKE:
The problem of the Hearings Officer was that you can't have a variance of the
rimrock setback.
MARTIN:
Correct.
CRAGHEAD:
Because they had already provided an exception to the rimrock setback. And,
therefore, you can't do a variance to an exception. That's the specific overruling
the general.
W811149
To be clear, there's nothing that stops this person from building a house on this
lot now. He just cannot build the house he wants to build on this lot.
MARTIN:
Yes. There's room to build a different structure in a modified location.
DEWOLF:
How do you measure the setback on rimrock? Rimrock isn't a straight line.
MARTIN:
It's a parallel line from the location of rimrock.
DEWOLF:
Property line to property line? I mean, from the two points of the property line,
and you draw a string across it, and that's the measure?
MARTIN:
No, it's not straight if the rimrock varies throughout the property. The setback
varies along with that. So it's a parallel line.
DEWOLF:
Parallel to the rimrock. So you further away the rimrock is from the river, from
that point, you couldn't be any closer than twenty feet.
MARTIN:
Correct. Now, if the parcel is big enough and there's an area where the rimrock
is closer to the river --
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 4 of 13 Pages
DEWOLF:
And it goes out, then you could build a deck or a room on that.
What do you think you could build, in terms of square footage of a home, using
the standards that we have established?
MARTIN:
My guesstimate would be somewhere between 1,000 to possibly 1,500 square
feet. But with some design creativity.
DALY:
There's a height limitation, too?
CRAGHEAD:
That's the whole issue.
DEWOLF:
Because the further you go back, the taller you can build your structure. Could
you make a two-level structure so that the part that's closer to the rimrock could
be twenty feet, and then a second story could be added at fifty feet back?
MARTIN:
A previous Hearings Officer's decision determined that the maximum height of
the structure is what determines that setback from the rimrock. So it can't be
tiered.
DALY:
What was staff s recommendation?
DEWOLF:
Denial.
MARTIN:
I recommended denial, but based on a different issue, that it didn't meet the
variance criteria.
LUKE:
But you did recommend the hearing.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 5 of 13 Pages
MARTIN:
I did, because it was a new issue that hadn't been determined in the past.
CRAGHEAD:
The issue as to whether you could vary an exception, wanting to get Board
interpretation of that.
DEWOLF:
So, you've got all this training as a land use attorney, and you have all this
training as a planner; and you're coming to us nimrods to find out what's right
and what's wrong here?
CRAGHEAD:
That's a flaw in the statutes.
The basic thing that I feel is that I hate to see any rule that is so hard and fast
that you can't take an exception. In other words, there are so many different
circumstances out there. Yeah, this needs to be excepted. I think this is one of
them. I can't see any reason that you can't draw a line between the two houses
and build a house.
CRAGHEAD:
It's a matter of the way the code is written, in that there is a set rimrock setback.
And there's an exception in the code that says, however, if you are a certain
distance back from the rimrock it determines how high you can go. That's an
exception to the current setback and height limitation that is in there now.
The issue then is, can you use the variance criteria to then apply an exception to
the exception. The second issue is, even if you determine that you can do that,
does he meet our variance criteria, which means it is not a self-created
difficulty.
DEWOLF:
Which is, he could have bought another lot.
CRAGHEAD:
Or a different size or design of house. That sort of thing.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 6 of 13 Pages
DEWOLF:
I don't remember specifically, but my recollection is that he wanted to build
twenty feet from the rimrock and still have a twenty -foot house.
LUKE:
One of the problems you have is that if you make an exception here, you've set
the standard for the next decision, if there is something out there we don't
foresee. Once you have set that standard, then it's law.
DEWOLF:
Can he put a deck closer?
MARTIN:
It includes decks.
DEWOLF:
Can he pour a patio?
CRAGHEAD:
It's the same.
DEWOLF:
Can he put gravel paths? Where do we draw the line? Can he put a swing set
for his children?
LUKE:
Let's say that a concrete patio doesn't require a permit.
DEWOLF:
Neither does a deck.
LUKE:
Some decks do.
MARTIN:
It indicates "no" structure, which includes decks or smaller structures that don't
require a building permit.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 7 of 13 Pages
DEWOLF:
So the only way we'd know is if a neighbor finks of somebody else.
MARTIN:
That's what happens in most cases.
LUKE:
Do you want to think about this until Wednesday and talk individually with
staff in the meantime?
DEWOLF:
I'd prefer waiting until Wednesday. I want to talk with you a little bit more,
Laurie.
DALY:
That would be fine. I have a little different opinion of what you just said. To
me, land use law is confusing, and there's a lot of stuff out there that doesn't
make a lot of sense. And if it is going to come before us anyway, then we
ought to be able to make exceptions on different things as they come forward. I
mean, each circumstance is different, and there are some that require a decision.
There have been some decisions here that I didn't agree with, because the law is
so hard and fast and there wasn't any room for an exception.
DEWOLF:
But the problem with the law is that it is in fact, the law. And what we do in
our decisions creates precedent for the future. I mean, I'm really torn on this
thing, because my inclination is to let somebody build a house.
But by the same token, and where I'm troubled, are the long-term implications
that this has, because decisions that we make impact decisions in the future.
They are taken by Hearings Officers, "based on what the Commissioners
decided in", and cited. I want to make sure that, for me anyway, I'm
considering all of this.
I don't see the down side to have an exception and being able to make
exceptions. If it is going to come before the three of us anyway to make a
decision, then obviously there is some reason to come to us. And we ought to
be able to make the decision.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 8 of 13 Pages
If you are worried about future decisions, all you are saying is that we will be
able to make those decisions, too.
LUKE:
Once you set precedent, when you change from that you better have a good
reason, or you could be sued.
CRAGHEAD:
There is case law in land use areas that you don't have to continue making the
same decision, as you can base it on new circumstances.
DALY:
That's the law I like. That's a good law.
Igo) 4a
I'd like to point out that there is already an exception. And what you are doing
is taking an exception to an exception you already have.
CRAGHEAD:
There's also the law on how you take that exception; there are our code criteria
on how to take that exception to the exception. That's our variance criteria.
This item will be addressed at the Wednesday, September 10 Board meeting.
6. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-105, Transferring Appropriations within the Sheriff's
Office Fund (regarding Search & Rescue Services and the Traffic Team),
and Directing Entries.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 9 of 13 Pages
7. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-107, Transferring Appropriations within the Sheriff's
Office Fund (regarding the Relocation of the La Pine Substation), and
Directing Entries.
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
Resolution No. 2003-106, Transferring Appropriations within the
Deschutes County Information Technologies Reserve Fund (regarding the
Replacement of a Server).
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
9. Before the Board was a Discussion and Consideration of Signature of
Order No. 2003-094, Transferring Cash among Various Funds as Budget
in the FY 2003-04 Deschutes County Budget, and Directing Entries.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
10. Before the Board was a Discussion and Consideration of Signature of
Resolution No. 2003-099, Appropriating New Grant Funds to the FY 2003-
04 Deschutes County Budget (relating to a Grant Received by the Sheriffs
Office from the Office of Domestic Preparedness).
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 10 of 13 Pages
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
11. ADDITIONS TO THE AGENDA
A. Before the Board was a Discussion and Consideration of Authorizing
Legal Counsel to Agree with Employers Defense Alliance and
Harrang Long Rudnick, P.C. to Provide Legal Defense to the County
relating to PERS Litigation.
Mark Pilliod gave a brief overview of the item. Deschutes County has
been named as a defendant in both cases; however, concerns regarding
potential adverse attorney fees have been addressed.
A response is due to Supreme Court this Wednesday; and Mr. Pilliod
wants to make sure everyone is aware that Deschutes County is a
participant. He said he should have the confirmation by the end of the day
tomorrow.
Commissioner DeWolf indicated he would move approval of this item,
subject to the receipt a written confirmation from one of the other parties
(Mr. Alexander).
This item will be addressed at the Wednesday, September 10 Board
meeting.
B. Before the Board was a Discussion and Consideration of Signature of
a Letter Appointing Chris Bellusci to the Business and Industry
Position on the Board of Central Oregon Intergovernmental Council.
Commissioner DeWolf stated that this position had previously held by
Roger Lee.
DEWOLF: Move approval.
DALY: Second.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 11 of 13 Pages
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
C. Before the Board was a Discussion and Consideration of Chair
Signature of Document No. 2003-401, an Application for a DEQ
Food Recovery Grant for COCAAN.
Susan Ross explained that this is really not a County project, but the
County is required to be the applicant. This grant would provide for
increased outreach for the program. There is no obligation to the County
with the exception of making sure the paperwork is filed; however,
COCAAN is responsible about doing this.
LUKE: Move approval.
DEWOLF: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
D. Before the Board was a Discussion and Consideration of Signature of
Order No. 2003-095, Declaring Certain Deschutes County Personal
Property Surplus, and Authorizing Sale.
DEWOLF: Move approval.
DALY: Second.
VOTE: DALY: Yes.
DEWOLF: Yes.
LUKE: Chair votes yes.
Being no further items brought before the Board, Chair Luke adjourned the
meeting at 10:45 a.m.
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
Page 12 of 13 Pages
DATED this 8th Day of September 2003 for the Deschutes County Board
of Commissioners.
ennis R. Lute--, hair
Tom DeWolf, Com Toner
ATTEST: AiAael . Daly, tnissioner
T'XIukd-I 61kLt-�
Recording
Secretary
Minutes of Board of Commissioners' Work Session Monday, September 8, 2003
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