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2006-596-Minutes for Meeting February 21,2006 Recorded 6/21/2006COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS CJ 2006.596 COMMISSIONERS' JOURNAL 06/21/2006 02:50:34 PM IIIIIIIII I IIIIIIIIIIIII III III 2004-'3 DESCHUTES COUNTY CLERK CERTIFICATE PAGE r This page must be included if document is re-recorded. Do Not remove from original document. G 4u A { Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF SPECIAL WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, FEBRUARY 21, 2006 Commissioners' Conference Room - Administration Building - 1300 NW Wall St..., Bend Present were Commissioners Bev Clarno, Dennis R. Luke and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; and Catherine Morrow and Kevin Harrison, Community Development No representatives of the media or other citizens were present. The purpose of the work session was to address questions and concerns of the Commissioners regarding the Mees land use appeal. The meeting began at 10:05 a. m. Kevin Harrison distributed information on the appeal. ■ A copy of the Hearings Officer's decision, highlighting key points ■ A copy of a portion of the Forest Zone, Chapter 18.36, with the uses permitted outright highlighted A copy of a page from the definition section of the Code, highlighting accessory structure use, including auxiliary. HARRISON: Those definitions are relevant to this case. This is a case that turns on the definition and interpretation of words. It is a case that involves language that is coming directly from State Statute and Administrative Rule. So the notion is that the County has little flexibility in interpreting State Statute and Administrative Rule. Typically the County gives the literal interpretation, and that is what the Hearings Officer has done here. I think the County has very little flexibility in making an interpretation that goes outside the boundaries of the language of the Code and the Rule. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 1 of 15 Pages LUKE: That's not necessarily true. Crook County did it, and it took us two years to fix it. HARRISON: If we look at the decision of the Hearings Officer, the proposal is for a building that is purported to be accessory to forest operations on this property. The notion is that this building will store equipment and machinery that is going to be used primarily for forest-related activities. Not necessarily commercial activities, but maintenance and clean up, those kinds of things. LUKE: I want to point out - and this is in the record - this was brought up before. The Oregon Forest Stewardship Plan for this piece of property was done by Earl Nichols, who was a forester for years. I asked for a copy of it. Luckily Earl only sent me the first twenty pages or so. It very clearly calls out for not commercial maintenance of this piece of property, but for small maintenance. You wouldn't get a commercial contractor to come in and do this. It will be a do it yourself or a one-person operation because of the sensitivity of the ground and the types of trees that are there, and the abuse this ground has suffered in the past. There is a plan that talks about this, and it is very clearly a hands-on operation. HARRISON: Right. There's no question that the owner in this case intends to actively manage the property. So the argument on the applicant's size is really two things. One is that this stewardship and management plan and this building go hand in hand in terms of forest operations on this property. Let me just back up a little bit here. The question is, what are the uses permitted outright in the zone. We look at Chapter 18.36, a single page, uses permitted outright. I've highlighted the introductory language. The following uses and their accessory uses are permitted outright. A and B talk about forest operations and forest practices. B talks about temporary on-site structures that are auxiliary to and used during the term of a particular forest operation. LUKE: I need to ask you a question. The house is already on this piece of property. What would we have done if they had made this building attached to the house. The house, garage and storage in the house could have been bigger. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 2 of 15 Pages HARRISON: Well, the applicant could have represented this building as being a residential accessory building., for example. Then we have a whole different argument, and maybe a whole different outcome. They didn't. The represented it as a building that is accessory to forest operations. LUKE: So they are going to be punished for being honest? HARRISON: Well, that's kind of a value judgment here. The key words are "uses permitted outright". The following uses and their accessory uses are permitted outright: forest operations, forest practices in one category; the second category "B" is temporary, on-site structures that are auxiliary to and used during the term of a particular forest operation. You have definitions for accessory use, and auxiliary. LUKE: How can it be a temporary building used during the term of a particular forest operation if, according to the forest stewardship plan, this needs to go on forever? MORROW: He didn't apply for temporary use. HARRISON: Mr. Dewey's argument here is that the strict reading of our Code and the Rule says that if you are going to have a structure that is accessory or auxiliary to forest operations, that building has to be limited to a temporary structure, with no permit foundation. That is the argument he is making, based on a strict reading of our Code and Rule, and the Hearings Officer said she agreed. LUKE: So it would have to be a pole building, with poles buried in the ground. HARRISON: Right. And then maybe we would have some kind of agreement that says that LUKE: At the end of 99 years, when your forest stewardship plan is over, that building has to come down. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 3 of 15 Pages CRAGHEAD: Actually, it is less than that in the Rule, since it isn't for the whole duration of the forest. The other argument that Paul Dewey is making is that permanent storage of logging equipment is allowed under OAR.660.006.0025, but as a conditional use. And the County chose not to list that in its conditional uses. Therefore, reading it in context, because of the fact that our uses permitted outright only talk about temporary uses, the fact that we did not include it in our conditional uses, therefore what they are asking for is not an allowed use. MORROW: Because we had the option to allow permanent, and as a policy choice, the acting Board at the time said it chose not to include that use. So that's the legal argument. CRAGHEAD: Either that, or it was an oversight. LUKE: How long ago was that? MORROW: I don't know. Certainly before me. DALY: This is the kind of stuff that can make you crazy. MORROW: Yeah. No kidding. HARRISON: That's right. So, the applicant's argument is wait, this introductory language talks about the following uses and accessory uses permitted outright. Accessory uses could include the building. Mr. Dewey's argument is that in this case we are dealing with state law and Administrative Rule, and based on the strict reading of these in our Code, all that is left here for the applicant, if he wants to have a building in conjunction with forest operations, is a temporary structure. DALY: Can you call the one he has temporary? Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 4 of 15 Pages HARRISON: He wants a permanent foundation. (Reading.) An auxiliary structure is located on a site, temporary in nature, and not designed to remain for the except through harvesting, and is to be removed when the particular forest practice has concluded. CLARNO: I guess if he is going to maintain this under the stewardship plan, he isn't going to conclude his practices. HARRI S ON: It talks about this notion of auxiliary and temporary, on site structures, being those that are portable and are not placed on a permanent foundation. This structure has already been built - this first came to us through a Code complaint - so it has a permanent foundation and is not designed as a portable or temporary structure - it's designed to stay there. LUKE: Legal Counsel, it would appear that there are at least two votes on this Board to approve this building. Is there a way to do this within our Code and state law? CRAGHEAD: If you approve it, you are agreeing with the applicant that it is an accessory or auxiliary use as permitted outright. LUKE: Is that a defensible argument? CRAGHEAD: I think either item is defensible. DALY: So we could approve it as a use permitted outright in the zone? MORROW: On that first provision that Kevin cited under the Code - LUKE: 18.36.020 (a)? Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 5 of 15 Pages CRAGHEAD: The paragraph before (a) where it says, the following uses and their accessory uses. Now, Paul Dewey's argument is that this is an accessory structure but not an accessory use, and that in our Code these two are separated out. LUKE: Kevin mentioned that if they had made it an accessory building to the residence, it might have been easier to approve it. HARRISON: I think so. MORROW: It would have been a conditional use. HARRISON: Well, they already have a conditional use permit for the house. The house is under construction now. It was approved. LUKE: I would have had a problem with this building if they didn't have the stewardship plan in place, or if hadn't been clear in the stewardship plan that it is going to take a lot of personal time - either theirs or they will have to hire it - to carry out this plan. Clearly, that equipment is better off there, separate from the house, because they are going to have gasoline and other combustibles there. It should be separated from the house; as a matter of fact, under our Code they would have to have a firewall between them. The building is not for a motorhome or boat; it is for carrying out the stewardship plan, much like a farm plan that people used to do in Deschutes County before you got the ability to build a house on your ground. CLARNO; I would certainly hate to see this equipment necessary to meet the guidelines of the plan sitting out in the open somewhere. LUKE: And there is nothing in our Code that says the equipment can't sit outside. So, whether they have the building there or not, they could have the equipment there, which would be unsightly to the neighbors and the people driving by. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 6 of 15 Pages CRAGHEAD: The issue to Paul Dewey and his group is the fact that there is another permanent structure and not preserving forest land, which is required in the Goals of the Comprehensive Plan. That would be the issue, is that it makes it easier to allow more structures and making the land more developed and not preserved for resource uses. I will let you know that on Friday he told me that he is considering filing a DLCD enforcement action against the County because it has allowed structures on farm and forest land. MORROW: Have we allowed a lot of others, as accessory to residential? I thought the quirk about this one was that they deliberately applied to have it be a forest use. Normally it would be accessory to the residential use. CRAGHEAD: Right, but he used this to talk about also including the agricultural buildings. Just to let you know, that's been a threat. DALY: How does this guy get his funding? Who pays him to do all this? MORROW: His clients. DALY: There are people out there with that kind of money? I mean, he's in here all the time. LUKE: He has other clients, too. DALY: What are the other options? Obviously the Code is flawed. Should we start a process to change this Code? LUKE: I would think there are other people who would suggest the Code isn't flawed. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 7 of 15 Pages CRAGHEAD: In that OAR paragraph 4, with the whole list of conditional use, this is one of the only uses not listed in our Code. LUKE: Our Code doesn't follow State Statute. HARRISON: That's right. There is a gap between what is allowed in Statute and what is allowed in our Code. And I think, to be honest with you, the last time we did an update we missed this thing. It wasn't deliberate, not a deliberate policy choice. MORROW: But there would be evidence in the record or discussion if we left it out. CLARNO: If we have a gap, we need to close it. DALY: My thoughts exactly. MORROW: To be consistent with State law isn't really too much of a stretch. HARRISON: Typically we put in whatever State law allows, as a conditional use. DALY: In other words, if we turned it down based on what is in the Code now, and we fixed it, he could come back at a later time and try again? LUKE: In the meantime, you have a code enforcement action against the building. CRAGHEAD: And it's a matter if we can go forward with the code enforcement. If we don't go forward, then Paul Dewey has a right to do a private right of action in Circuit Court. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 8 of 15 Pages DALY: How long would that take? A long time? CRAGHEAD: It could. LUKE: (To Commissioner Clarno) Before you came, ARLU DeCo (Alliance for Responsible Land Use) was all over us on forest uses. The lady who was president of that group, and therefore the chief petitioner and signer, especially when we were doing the F-1 forestry stuff, I think the legislature had just done the circle, they interviewed her on radio and the newspaper, and they had to drive over a half- hour down a road in the F-1 zone to get to her house. She explained that she felt really bad that she lived on F-1 property and that she was going to sell it. She was told that absolutely she is going to sell it, as she could get more money now because no one else can ever build out there. That was an interesting sidelight to the conversation. I believe there are two votes to move this, maybe three. DALY: We will end up at LUBA. LUKE: So what, we've been there before. HARRISON: This will end up at LUBA on this. LUKE: What I would like from staff is a statement that I can read tomorrow that will make it easier for you to defend this decision. CLARNO: Then will we do something about fixing the gap? MORROW: If you direct us to, we will add it to our list of amendments to make. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 9 of 15 Pages HARRISON: We are in the process of doing this. LUKE: I think you are being directed to do that now. DALY: I would think so. MORROW: We are getting the message. I'll make sure it is on our portfolio now. LUKE: Again, if they didn't have the stewardship plan in place, I would have a problem with this. I would see it just as a regular building. They clearly have a plan in place, developed by a well-respected forester. This isn't some graduate student doing this. Earl Nichols is well respected in the forestry industry. CRAGHEAD: The plan is not a part of the Code as far as determining whether you can approve a structure. LUKE: I understand. CRAGHEAD: So as a permanent structure, that wouldn't be a basis for approval. If someone comes along tomorrow and says, even though we don't have a stewardship plan we want this permanent accessory use because of the way you are interpreting the Code, they would be able to get it even without having a plan. LUKE: Not if in the revision of our Code it talks about having a stewardship plan in place. CRAGHEAD: In between time, though, if someone comes in and applies. LUKE: How many do you think you are going to get? Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 10 of 15 Pages CRAGHEAD: We could get several. LUKE: I could see Kevin getting this before the Planning Commission right away. I am counting on staff to narrow this down for us. DALY: I will be calling in on this decision. LUKE: Are you comfortable with this? CRAGHEAD: Yes. I think it has about a 50150 chance of winning. MORROW: If we lose and it gets remanded, and we are in the process of adopting this as a conditional use in conformance with Administrative Rule, that would give the applicant another avenue to pursue it. He would have to reapply. LUKE: The other thing is, is the no foundation under State law? CRAGHEAD: That's State. LUKE: I think it is important, I want to put on the record, that I'm not here to open up development of F-1 ground. I don't think we should do that. I supported the circle thing in the legislature as it went through our committees regarding template dwellings. Whether that was good or bad, it tended to limit the kind of things that went on in forestry zones. Forestry zones are for cutting trees. It is not my intention under this decision to open up F-I ground for development. CRAGHEAD: Do you have a thought of how this permanent accessory use is different when you are specifically delineating a temporary use as a use permitted outright in a forest zone? Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page I 1 of 15 Pages LUKE: Excuse me? CRAGHEAD: Because in the list of uses permitted outright, it specifically talks about a temporary structure. But now you would allow a permanent structure under that definition of an accessory use. When you specifically delineated temporary and gave direction on how they are different - LUKE: To me, the stewardship plan makes it different. It makes the distinction for me. CRAGHEAD: I'm talking about the wording in the Code to make that distinction. LUKE: I'm looking for staff. HARRISON: It talks about temporary on site structures that are auxiliary to use during the term of a particular forest operation. In this case, it is ongoing. It is really for the duration. MORROW: So the findings are that the term is not the same as the term used for temporary. Meaning it is not a particular forest operation of a limited duration. The term is longer. HARRISON: Which would be characteristic of a commercial operation, where you go in and do your cut, whatever, and leave. In this case, based on the plan, with an on site manager, and the forest practices that are envisioned would be ongoing. MORROW: So I think to add weight to the findings, they do need to refer to the type of forest operations going on here. So if another one comes in, we will have findings that the Board has adopted saying that under these particular circumstances we will allow it permanent as an accessory to forest operations of a long-term duration, per the plan. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 12 of 15 Pages CRAGHEAD: It is a temporary structure on a permanent foundation because the term is ongoing. They don't have to apply for a temporary one. MORROW: I think citing the forest plan, even though it is not something required under Code, I think the reason the Board is coming to this conclusion is because that plan exists. It is very specific. LUKE: That's exactly why I'm there. (There were overlapping discussions regarding other issues at this time) LUKE: Regarding the 4-R appeal (the Millican mine site), I would like to add a condition of approval. They will need to comply with the County lighting ordinance. I want to see a lighting plan, nothing complicated. They will need lighting for safety and security, but should do all they can to reduce nighttime lighting. CRAGHEAD: Bob Lovlien brought up the Pine Mountain Observatory, which is outside the area being considered. LUKE: We can't consider that. I am concerned about the road and the neighbors, especially after hours. Most of the people out there probably have night lighting. We can put this on the record tomorrow, but I want to postpone the decision until next week since Commissioner Daly will be out of the office tomorrow. LUKE: In regard to the Lundgren home occupation on the two separate lots, this concerns me. CRAGHEAD: Paul Dewey says it has to be on the same lot as the house. This interpretation could be correct. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 13 of 15 Pages LUKE: If there is a change of ownership, the question is whether it sets precedence if it is not on the same lot. How do you get around that. DALY: It is one piece of property, in two lots. MORROW: They could be sold separately. LUKE: They can't build on one of them. The original owners kept one and created another non-farm lot so someone could buy it and build on it; the other lot is unbuildable. The lot is too small. They are contiguous. DALY: They are contiguous, though. The Code needs to be clarified. LUKE: Could a person open a gun range on property that they have owned since the 1960's, through a Measure 37 claim? MORROW: I presume they could if it was allowed at the time. DALY: Is the Redmond gun club property located inside the city limits? HARRISON: It is probably within the urban reserve. The County owns it, though. I will check for you. Being no further discussion, the meeting adjourned at 10:55 a. m. Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 14 of 15 Pages DATED this 21St Day of February 2006 for the Deschutes County Board of Commissioners. R. Luke, Chair Bev Clafno, Vice Chair ATTEST: Recording Secretary Minutes of Work Session - Mees Appeal Tuesday, February 21, 2006 Page 15 of 15 Pages