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42-779-Order Recorded 6/16/1982FLED JUN 16 1982. cA~~ BOARD OF COUNTY COMMISSION V ~ , 49 EMARY PATTER OF THE STATE OF OREGON ESCHUTES COUNTIR 4p, rn FOR THE COUNTY OF DESCHUTES IN THE MATTER OF THE ) APPEAL OF SITE PLAN ) SP-82-7; APPLICANT ROBERT ) AND DAWN BURTON ) ORDER TO DISMISS APPEAL THIS MATTER having come on before the above-entitled Board on the Motion of the Applicant and the Response of the Appellant, and the Board having heard the testimony presented and arguments of counsel, and the Board having reviewed the record and file herein, now, therefore, IT IS HEREBY ORDERED that the appeal filed in this matter be and hereby is dismissed. This decision is based on the findings of fact and conclusions of law set out in Exhibit "A" attached hereto and by this referen~ye incorporated herein. DATED this / - day of June, 1982. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON - CZ/L; OBERT C. PAULSON, JR., Commissioner 2e ~4olt CLAY C SHEPARD, Chairman AL RT A. YOUNG Commissioner VOL 4 PAci: 780 EXHIBIT "A" Based on a review of the evidence submitted and the record and file herein, the Board makes the following findings of fact and conclusions of laws. FINDINGS OF FACT 1. The Applicant filed site plan SP-82-7 on February 16, 1982 and the Planning Commmission hearing approving SP-82-7 was held on April 14, 1982. 2. The record does not indicate the exact date the staff report was rendered. 3. The Applicant responded immediately to the staff report and more than ten (10) days elapsed between the Applicant's reply and the public hearing. 4. The Applicant did not object if the staff report was not rendered within twenty (20) days of the filing of the site plan application. 5. There is nothing in the record to indicate that the Appli- cant did not reply to the staff report within twenty (20) days after receiving it. 6. There is nothing in the record to indicate that the initial public hearing was less than ten (10) days after the Applicant's response to the staff report. 7. The Applicant did not and has not raised any objections to the procedure set out in PL-9 Section 4.000. 8. The Appellants did not raise any objections at the Planning Commission hearing of failure to follow the procedures set out in PL-9 Section 4.000 and did not present testimony of any prejudice before the Board due to a failure of the Planning Department to follow the procedure set out in PL-9 Section 4.000. 9. Craig Emerson, a Redmond attorney requested a thirty (30) day delay to refer the site plan to the Sisters Planning . Commission, but none of his three reasons for the delay were based on PL-9 Section 4.000. - 10. The only additional testimony on delay was on behalf of the Applicant, DAVID M. Jeoue, P.C. Page 1, Exhibit "A" ATTORNEY AT LAW 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 VOL PACE 4 11. The governing document for site plan SP-82-7 as to site plan criteria is Sisters Ordinance No. 119 and Deschutes County Ordinance No. PL-17. 12. The Appellant relies on Deschutes County Ordinance No. PL-15 in both the Notice of Appeal and Response for the statement showing how the Planning Commission erred in the application of the prescribed criteria and requirements and erred in the deter- mination of the basic facts to support the decision. 13. Deschutes County Ordinance PL-15 Section 7.060 deals with criteria for the County, not within the Sisters Urban Growth Boundary. 14. The Notice of Appeal contains no statement indicating what basic facts were in error and how the Planning Commission failed to apply the prescribed criteria. 15. Although the grounds for appeal regarding the impact on Hood Street were raised by Craig Emerson, they were not previously raised by the Appellant. 16. The Appellant has not cited in its appeal any ordinance criteria requiring the Planning Commission to deal with the issue raised in paragraph (c) of the Notice of Appeal. 17. The road system approved on the site plan is part of a road system existing in the acknowledged City of Sisters Compre- hensive Plan and approved after public hearings by the State of Oregon Department of Transportation. 18. The roadway on SP-82-7 connects the McKenzie Highway and Pine Stree, not Hood Street. 1.9. The two persons signing the Notice of Appeal were Daniel E. VanVactor and Alan R. Litzenberger. The signatures contain no reference to a group representatiion. 20. Chuck Hoyt did not sign the Notice of Appeal. 21. Alan Litzenberger presented no evidence to the Board of how the approval of SP-82-7 would cause him to be an affected or aggrieved party. 22. Craig Emerson did not indicate in his letter to the Planning Commission who his clients were, nor did he sign the Notice of Appeal or appear before the Board. 23. Daniel E. VanVactor did not state in his letter to the Planning Commission who his clients were, nor did he state the name of the recognized neighborhood group that he represented, DAVID M. JAQUA, P.C. ATTORNEY AT LAW Page 2, Exhibit °A° 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 n 4 2 nor did he establish that he was acting for a neighborhood group representing at least fifty percent (50%) of the property owners within the notification area. 24. Several of the persons purported to be Appellants represented by Daniel E. VanVactor either indicated they were at the Board hearing on their own or had only talked with Mr. VanVactor after the Planning Commission hearing. 25. None of the Appellants raised any concern before the Planning Commission regarding the road within SP-82-7, nor did they state any reasons why SP-82-7 would make them an affected or aggrieved party. 26. None of the proposed Appellants presented any evidence to the Board on standing except Harold Barclay, Pete Leithauser, Lloyd Brown, Chuck Hoyt and Mike Reed. 27. Chuck Hoyt told the Board that he went on record at the Planning Commission hearing as opposing the site plan approval, when, in fact, there is no such statement in the Planning Commission record. 28. There was no testimony presented to the Board that the "group" as a whole, which Mr. VanVactor purported to represent, was an affected or aggrieved party. 29. Harold Barclay testified to the Board that the first time he talked to Mr. VanVactor about the appeal was approximately one week prior to the Board's hearing and he had not dealt with Mr. VanVactor on the subject prior to the Planning Commission hearing. He also testified that his objection was to a local improvement district to build the Hood Street couplet. 30. Pete Leithauser testified to the Board that he never contacted Mr. VanVactor prior to his writing a letter to the Planning Commission on April 14, 1982 and that he has never really discussed the matter with him. He testified he could not actually see the project from the lot, but only from the sidewalk or street. 31. Lloyd Brown testified to the Board that the first time he talked to Mr. VanVactor was the morning of the Board hearing. He did not ask Mr. VanVactor to represent him. 32. Chuck Hoyt testified to from the project although he owns partnership on Hood Street. The of his right to testify on behalf concern is with the State Highway Commission put in the site plan. the Board that he lives two miles property as part of a limited record does not contain evidence of the partnership. His approval that the Planning By building the "couplet" to Dr viD M. JAOun, P.C. Page 3, Exhibit "A" ATTORNEY AT LAW 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 State Highway standards, it could impact heavy traffic patterns on Hood Street. If as presently designed, the street were not one way, it would not adversely affect his property. 33. Mike Reed testified to the Board that the first time he talked to Mr. VanVactor personally was immediately prior to the hearing and never actually talked directly to Mr. VanVactor prior to that time about SP-82-7. Mr. Reed has an unrecorded interest in a piece of property on Hood Street through his father and various family corporations, and was representing his father's interest. Concern was expressed with cutting trees on Hood Street east of Pine Street. His concern was with the implied "one-way couplet"; that being the same concern expressed by Mr. Hoyt. 34. The site plan SP-82-7 only deals with a piece of street for two way traffic between the McKenzie Highway and Pine Street. There is no condition or requirement dealing with the Hood Street couplet, cutting trees on Hood Street or a one-way road system. 35. Based on testimony of the parties as to the location of buildings on Hood Street and reference to the site plan showing its location to be northwest of the intersection of Hood Street and Pine Street, it is apparent that the area of the site plan is not visible from the actual properties on Hood Street except that of Chuck Hoyt. CONCLUSIONS OF LAW 1. The Appellant failed to raise any procedural objections to PL-9 Section 4.000 at the Planning Commission hearing although there was the ability to do so, and has failed to show any prejudice to the Appellant do to any failure to follow those provisions. The provisions of PL-9 Section 4.000, in fact, do not set exact time schedules, but rather set perameters which are generally determined by actions of the Applicant or staff. The record does not reveal any violations of the ordinance that would be detrimental to the Appellants. In fact, the only possible timing questions involve whether the staff report was prepared quickly enough and the Applicant never objected to that delay. 2. The provisions of PL-9 dealing with appeals are specific and detailed. The requirements of PL-9 Section 14.010(d) were clearly not met and neither the Board nor the Applicant can be required to speculate on how that provision might properly be addressed. DAVID M. Jnpun, P.C. Page 4, Exhibit "A" ATTORNEY AT LAW 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 ' ~ ~ any 3. The Notice of Appeal under paragraph (c) states the Appel- lant's specific grounds relied on for appeal. Although the record indicates the question raised was considered by the Planning Commission, the statement in the Notice of Appeal is faulty in that it fails to specify any requirement that the particular issue be dealt with. The allegations without reference to an appropriate statute or part of the record is the same as failing to state grounds sufficient to support a cause of action and, therefore, the mere statement cannot support an appeal. The actual statement in paragraph (d) is a mere conclusion and does not meet the ordinance requirement of setting forth a statement of how the Planning Commission erred in the application of the prescribed criteria and requirements and erred in the determination of the basic facts to support the decision. There is no statement of the prescribed criteria and requirements and no statement of the basic facts that the Planning Commission erred in support of the decision. The grounds for appeal must appear in the petition for review or Notice of Appeal and are not to be raised for the first time at the time of oral argument. The Appellant cannot "lie in the weeds" and wait to raise matters at a later time. The statement contained in paragraph (d) of the Notice of Appeal is not only a conclusion, it also deals with an ordinance which is not applicable to this case. The Board, therefore, has no basis upon which to review the Appellant's request. The Board will not speculate on this issue, especially on a case to be decided on the record. 4. The Appellant has failed to convince the Board that the Appellant has standing to file this appeal. The allegations contained in the Notice of Appeal are conclusive, and, therefore, cannot support standing without additional testimony. As to Alan Litzenberger, there was no additional testimony, and, therefore, his claim of standing must fail. There was no testimony whatsoever as to the standing of numerous parties named in the Appellant's response. They, therefore, can have no standing as Appellants in this matter. Those people are: Fred Wells, Bill Reed, Susie Busick, Lloyd Brown, Gary Frazee, Owen Smith, Jane Smith, Tom Heaton, Letha DeForest, Larry DeForest, Doris Olson, Jim Cheatham, Carrie Cheatham, Art Thennell, Vern Skarr, and Dennis Skarr. There is also no indication in the Notice of Appeal that it was filed for a neighborhood group. There was no testimony that the names listed on the Appellant's response were the members of the group represented by Mr. VanVactor on April 14, 1982. In fact, much of the testimony was to the contrary. This confusion, along with the failure to specify the nature of the group in Mr. Page 5, Exhibit "A" DAVID M. JAOUA, P.C. / ATTORNEY AT LAW 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 rALc 42 Von , VanVactor's letter of April 14th prevents us from acknowledging standing for the group, once again, we cannot speculate as to who is involved with the gaps to be filled in at some later date. In addition, there was no testimony that the group was any particular legal entity, nor that it represented fifty percent (50%) of the property owners within a specified area. Finally, there was no testimony as to how the "group" was an affected or aggrieved party. Testimony of individuals, unrelated to group issues, cannot give the group standing. 5. The individuals who testified apparently attempted to do so as part of a neighborhood group. Their testimony, however, destroyed that concept and without Mr. Litzenberger or the group, there is no one with standing to appeal. Without a valid Apellant, new individuals cannot now come forward to prosecute the appeal. We, nevertheless, chose to deal with the testimony given to make the record complete. Mr. Barclay did not appear at the Planning Commission hearing, did not retain Mr. VanVactor prior to that time and does not own property within sight of the proposed project. His objection was to a local improvement district to build the Hood Street couplet which is not a part of site plan SP-82-7. Mr. Barclay is not, therefore, an affected or aggrieved party, has not established himself as part of a valid neighborhood group or within the area of notice and did not appear at the Planning Commission hearing, and, therefore, has no standing. Mr. Leithauser did not appear at the Planning Commission hearing, did not retain Mr. VanVactor prior to the Planning Commission hearing and could not actually see the project from his property. Having not appeared at the Planning Commission hearing or established himself as being within the area of notice and not being part of a valid neighborhood group nor an affected or aggrieved party, Mr. Leithauser has no standing. Mr. Brown did not appear at the Planning Commission hearing, was not represented by Mr. VanVactor at that time and is not a signor of the Notice of Appeal. He, therefore, has no' independent standing in this matter. Mr. Hoyt appeared before the Planning Commission, but at no time represented that he appeared on behalf of or as part of a recognized group. He did not sign the Notice of Appeal and, therefore, has no standing unless someone or some group has standing. He failed to provide evidence of his legal authority to act for a limited partnership with respect to a piece of real property. He also stated that his concern was with the "couplet" and that the street through the site plan as presently designed, if not one-way, would not adversely affect his property. Due to the limited scope of the site plan approval with the on-site Page 6 , Exhibit "A„ DAVID M. JAOUA, P.C. ATTORNEY AT LAW 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 r v'o~ r PACE 786 street being two-way and there being no couplet requirement, Mr. Hoyt, by his own testimony is not an affected or aggrieved party. Mr. Reed was also ostensibly part of the group, although he never talked directly with Mr. VanVactor prior to April 14, 1982, nor does he actually own property on Hood Street. It is unclear in what capacity he actually wishes to participate. Mr. Reed, like Mr. Hoyt is concerned with the one-way couplet and cutting of trees on Hood Street. Neither of these factors are involved in the site plan. Mr. Reed also did not appear at the Planning Commission hearing. He, by his own testimony, is not an affected or aggrieved party as it relates to this particular site plan and he has no standing. No one has standing in this appeal unless Alan Litzenberger or a valid "group" appearing at the Planning Commission has standing. Mr. Litzenberger's statements in the Notice of Appeal are mere conclusions, and without further evidence he has failed to support his own standing. PL-9 sets out criteria for a "group" representation that has not been established. In addition to there being no testimony as to how the "group" is affected or aggrieved, there is substantial contradictory and confusing testimony by the Appellant as to who the "group" was or is. Neither the Applicant nor the Board or Planning Commission is responsible for this lack of specificity. If persons wish to participate as part of a recognized group, they must establish that position and the Board, Planning Commission, and Applicant are not required to speculate on who may or may not be involved at various stages of the proceedings. 6. The record indicates a road system established within the Sisters Urban Growth Boundary for a Hood Street couplet. This system is contained within the acknowledged comprehensive plan. DAVID M. JAQUA, P.C. Page 7, Exhibit "A" ATTORNEY AT LAW 1655 West Highland Avenue P.O. Box 130 Redmond, Oregon 97756 VOL .642 FACE 787 STATE OF OREGON ) ) ss. CERTIFICATE OF SERVICE COUNTY OF DESCHUTES ) I hereby certify that I served a true copy of the foregoing Order To Dismiss Appeal, certified by me as such, on the following parties at the addresses indicated below by mail: David M. Jaqua Daniel E. Van Vactor Attorney at Law Van Vactor, Francis & Martin P. 0. Box 130 P. 0. Box 343 Redmond, Oregon 97756 Bend, Oregon 97709 DATED this the day of tV(z--, 1982. RI ARD L. ISHAM, OSB #75-195 Desc tes County Legal Counsel STATE OF OREGON ) ) ss. COUNTY OF DESCHUTES ) I hereby certify that the foregoing copy of Order To Dismiss Appeal is a true and correct copy of the original thereof. DATED this the day of . 1982. RICHARD L. ISHAM, OSB #75-195 Deschutes County Legal Counsel