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2006-919-Minutes for Meeting April 03,2006 Recorded 9/18/2006DESCHUTES COUNTY OFFICIAL RECORDS CJ ~pp6.919 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 111111111 in11u 09/18/1006 03.11.58 PM 1~IIIII000Ui 200E-91# Do not remove this page from original document. Deschutes County Clerk Certificate Page { If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book and Page or as Fee Number ' 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 MONDAY, APRIL 3, 2006 Commissioners' Conference Room - Administration Building - 1300 NW Wall St..., Bend Present were Commissioners Dennis R. Luke and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; and Paul Blikstad, 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 Lundgren type 3 home occupation appeal ale #CU- 05-71). The meeting began at 9: 00 a. m. DALY: The issue that sticks in my mind is the two tax lot issue. CRAGHEAD: There are two separate legal lots, as well as two different tax lots. One issue is whether the parking of the trucks can be on the EFU parcel and the actual home occupation on the other parcel, with the house. BLIKSTAD: I think what Paul (Dewey) brought up was that if you allow this, you could do home occupations on any number of lots or any parcels that were separated by more than just imaginary lines. I think it is easy to resolve, in my opinion, because you could say that because they are contiguous, they are in essence one unit. He's not going to sell one parcel separately, although he could. But then he would lose his conditional use permit, and why would he do that. Because they are contiguous and they are essentially one unit, I think we could write it into the decision that this is one - iviinuies or work Nession - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 1 of 14 Pages LUKE: What do you mean, he would lose his conditional use permit? For the barn? BLIKSTAD: Well, if you approve it with - CRAGHEAD: This is a conditional use permit. BLIKSTAD: If you approve it with the office use in the house, and his parking over on the other parcel, if he sells that other parcel he has lost the ability to use the one for this home occupation. I think that is easy. What do you think? LUKE: Sure they do. The thing goes with the owner, it doesn't go with the property. The home occupation goes with the owner. CRAGHEAD: I think the way our Code is written is that it needs to be on the same parcel. DALY: Who wrote the Code? CRAGHEAD: It also complies with State statute in terms of home occupations. On EFU land, it needs to be primarily within a dwelling. If you are going to allow parking on EFU land separate from the dwelling, you are allowing it on a parcel that is not primarily with the dwelling. DALY: What if they are parking farm vehicles? CRAGHEAD: These aren't being used primarily for farm vehicles. DALY: They easily could be, though. I have a backhoe sitting in my yard and I use every day or so. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 2 of 14 Pages CRAGHEAD: But their barn is used primarily for resource use, and you aren't allowed to park your home occupation vehicles in the barn. BLIKSTAD: Well, if that were the case, this would automatically have to be denied. LUKE: Can they combine the two lots? CRAGHEAD: They could consolidate them. LUKE: Then it would be legal? CRAGHEAD: I'm not sure they would be allowed to, as there would be a non-farm dwelling on a consolidated lot. BLIKSTAD: I think they would have to disqualify. CRAGHEAD: They would have to disqualify everything. They couldn't have the farm deferral. LUKE: They shouldn't be getting farm deferral where the trucks are being parked. We're not talking about that big a piece of property. DALY: Yes, but farm deferral is important if you are going to use it as a farm, because - what is it, 30 or 40 acres? BLIKSTAD: Other than the house part, the rest is twenty-some acres. LUKE: The acreage where the shop is - Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 3 of 14 Pages CRAGHEAD: Thirty-one. LUKE: Would not be under farm deferral. Even now, because it is not being used for farm equipment, it is being used for construction equipment. BLIKSTAD: Well, but he is on deferral and I don't think this would impact that. CRAGHEAD: He's saying that where this equipment is being parked, because it is for the excavation business, and the building if they are going to be parked in the building, that should be taken out of farm deferral. BLIKSTAD: Just that area? I don't think the Assessor's Office can do that. DALY: Are you talking about just the parking lot? LUKE: And the building. DALY: How about all the pasture and all that stuff? It's one parcel. LUKE: When they do farm deferral, you can have a thirty acre piece, but if you have a corner that is not in farming - over in the valley we had to actually pass legislation for reserve for animals, if you had a center piece with oak trees and brush on it and you chose not to farm that, that was out of farm deferral. We called that wildlife habitat. If you left out that little piece of woods, everything around it was on farm deferral. DALY: Didn't realize you could do that. Are most farms, with the home and everything on the farm, entirely on deferral? Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 4 of 14 Pages CRAGHEAD: Not where the house is. I don't think so. Unless it is a farm dwelling. Most of these dwellings are non-farm. Even if it is on the EFU parcel, it would not be in deferral. CLARNO: But if your house is on a farm - CRAGHEAD: If was constructed under the farm dwelling, being used for the farm, living there to operate the farm, there are different criteria. LUKE: No, that doesn't matter. These people have a non-farm dwelling. Let's say, your house out there was built after land use, so you have a non-farm dwelling out there. The house is taxed at a different rate than the farm ground. CRAGHEAD: There are farm dwellings and non-farm dwellings. I haven't dealt much with farm dwellings, since we haven't had that many. LUKE: Farm dwellings are not a house; they are typically a barn or something like that. CRAG1 EAD: That would be an accessory. A farm dwelling is an actual dwelling. That's why it is called a dwelling. LUKE: Where you had the hired hands living, not your primary residence. DALY: No, a farm-related dwelling. Most of your smaller parcels around Redmond near me have twenty or thirty acres and a house. I would imagine their whole place is on farm deferral, but I don't know. BLIKSTAD: I think what they do is except out like an acre, but I don't know that it is taxed at the regular rate. It's not on deferral, but it is taxed differently. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 5 of 14 Pages DALY: Laurie, is it your opinion that there is no way we can approve this? CRAGHEAD: It is the Board's choice on how you interpret this. My legal opinion is the more correct interpretation, based on statute, I think the arguments from Larry Irwin and Paul Dewey are plausible, that it needs to be on the same parcel. The statute talks about it being primarily within the dwelling, and if it is not on that parcel and there is no dwelling, and so it can't be primarily within the dwelling. CLARNO: And what we are faced with here, if I am correct, if we did approve it, we would be setting precedent. Is that correct? CRAGHEAD: Yes, but it will probably be appealed either way. BLIKSTAD: I don't think so. CRAGHEAD: You don't think the Lundgrens will appeal? BLIKSTAD: No, I don't. DALY: So the only other thing the Lundgrens can do is consolidate the parcels somehow. CRAGHEAD: Or move the equipment onto the parcel where the house is. BLIKSTAD: Or do a lot line adjustment. LUKE: I thought they couldn't, because it isn't big enough. CRAGHEAD: I don't know. I can't remember. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 6 of 14 Pages LUKE: I thought it had to be ten acres. They could do a lot line adjustment and bring that in, and leave the other property in farm deferral. CRAGHEAD: You can only do it if the bigger parcel is not going to be below the minimum lot size. BLIKSTAD: I don't think they can get this to ten if they expand that. LUKE: So they'd have to combine them and take them out of farm deferral, and move on. CRAGHEAD: The Board does have the option of interpreting it such that when you are talking about parcels, you are talking about adjacent parcels. LUKE: The problem if you do that, and I would assume that Paul Dewey and his group will appeal, is that you will have the State interpreting our law. We could get some ramifications we don't like. CRAGHEAD: However, if the Board is making a decision to interpret that way, it is a local Code interpretation and therefore subject to deference by LUBA. Then the issue would be whether that Code interpretation complies with State statute. LUKE: The Hearings Officer turned it down. BLIKSTAD: Because of the 35% limitation, that was it. CRAGHEAD: She didn't have a problem with the two different parcels. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 7 of 14 Pages LUKE: I don't think it was the intent of the Board that the parcels be considered separately. DALY: I know it wasn't. This is exactly - this is the first one that has come before us since we created the Ordinance, and now we have a hitch in it. CRAGHEAD: The other issue is the parking. Right now, the home occupation can only be within 35% of the dwelling. The issue is, do you have to include the parking footprint as part of that 35%, which reduces considerably how much of the house can be used for home occupation. The interpretation of the home occupation type 3 was not to include that, otherwise why would you have included it separately from the other types. DALY: Say that again? CRAGHEAD: The Hearings Officer found that when you are calculating the 35% of the dwelling as the home occupation, it is also to include whatever the footprint is that the outside equipment takes up. So if your house is 1,900 square feet and your parking takes up 1,000 square feet, you can't have a type 3 home occupation. That doesn't make sense to me, given that the type 3 home occupation was meant for outside parking of equipment, and it is usually large equipment. To me, that interpretation is not the intent of the Code, even thought it doesn't specifically say that. The Board could easily make the interpretation of the Code that this was meant to be separate. DALY: That would be my interpretation. Thinking back, when we created this Ordinance, there was quite a bit of discussion. This one fits exactly except for the two parcels. CRAGHEAD: The reason why I think the interpretation of needing one lot was because you are limited on parcels that have ten acres. But if the Board so wishes to make the decision that the ten acres meant the whole property, I can understand that. Also, if it is an approval, it has been the policy of the Board in the pass is that we don't defend it at LUBA; we let the applicant and opponents handle their own defense. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 8 of 14 Pages We defend denials, but we haven't in the past defended much in the way of approvals, unless there is some Code interpretation - and this could be one of those - where you want me to go ahead and defend it even though it is an approval. BLIKSTAD: The other thing that I brought up in my e-mail to you was that Paul Dewey correctly pointed out that we didn't address the criteria dealing with "will not force a significant change of accepted farm or forest practices or significantly increase the cost of those farm or forest practices." You'd have to find that this proposed home occupation - there is no forest use - doesn't impact the farming aspect. CRAGHEAD: And why. DALY: Why would it? The guy has his own farm. CLARNO: I guess I'm just worried about setting precedent. CRAGHEAD: And how far, how adjacent, do you consider if a road runs through it, is it adjacent. What would you allow, if there was another parcel between the two, or if it is across the street. Will you allow the home occupation on one side of the street and the equipment parked on the other side. LUKE: It's been about a year when we had staff look at how many parcels would be affected if we did certain things. We haven't looked at that here. BLIKSTAD: Either way, this is an important one for us. DALY: If we approve it, we are looking at a LUBA appeal. LUKE: I agree with Mike, this thing fits the criteria of everything we thought about as we went through the home occupation ordinance, except the two lots. This creates a problem. I don't think it would disrupt farm use. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 9 of 14 Pages CRAGHEAD: You don't think the noise or anything else would interfere, or dust it creates - BLIKSTAD: This is a Code enforcement case, but I think it was turned in by a County employee. So the issue of impacts I don't think is necessarily there. He's not a neighbor but saw the structure didn't have a permit. CRAGHEAD: But now the neighbors are involved since we sent notice. But the Lundgrens turned in examples of excavation equipment all around there. (A general discussion then took place regarding farming equipment, how early in the morning it could be in use and the noise this equipment normally creates.) DALY: Farming occupations make lots of noise. the morning is nothing. Starting up a dump truck or something in CLARNO: These are an accepted practice, and it would be difficult to say that this is a problem. CRAGHEAD: Because there is equipment all around of a similar nature, which can all be used for farming. DALY: Dump trucks, backhoes, anything like that can be used for farming. I use my backhoe on my five-acre little farm to clean up and to feed animals. CLARNO: Point I and 2 of the e-mail are accepted farming practices. CRAGHEAD: They are already farming and it hasn't lowered their farming practices. BLIKSTAD: I think we looked at the limitation of not starting up before 6 a.m. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 10 of 14 Pages CLARNO: I have a real problem putting a restriction on this. Then do you not bale hay before then? BLIKSTAD: We can't do anything about his farming, this would be for the excavation equipment. CLARNO: It's not typical, but if you are going to go out and possibly do something on the farm, you can't regulate it. What about the part "will not significantly increase the cost of accepted farm and forest practices on surrounding lands devoted to farm or forest." Can you explain to me what you mean by that. BLIKSTAD: We don't think that it does. CLARNO: I guess I can't find how it could increase the cost. How could it? CRAGHEAD: Maybe creating access problems, or maybe if they kick up more dust that ends up on the crops, requiring more irrigation. DALY: That wouldn't affect it. LUKE: Or your neighbor has an animal that is sensitive to the equipment. But that isn't going to happen. CLARNO: Historically, these are things that people have dealt with already. LUKE: You have to make a finding and then explain why. You don't have to get too complicated. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, Apnl 3, 2006 Page 11 of 14 Pages CLARNO: I have lived on farms all my life and I do not think there is any way that what they are doing would increase the cost of farming. CRAGHEAD: You could say that there is no evidence in the record that shows there would be any increase in cost to the surrounding land. You still need to go through these criteria. The Hearings Officer didn't go through an address all the criteria and made a finding of denial. BLIKSTAD: She didn't because we - I - failed to address these in my staff report. DALY: The only issue I can see is the two lots. LUKE: I can't approve this with the separate lots. DALY: I don't have a problem with it, but I don't want to get reversed at LUBA. LUKE: We could allow it since it is one unit, but the question is whether to do the same if the lots are separated. CRAGHEAD: You could interpret the Code as to having no physical separation. LUKE: They could combine the lots and give up their farm deferral. CRAGHEAD: If they were combined, this would disqualify the whole property from farm deferral because of the non-farm dwelling. DALY: We never thought about this when we were creating the Ordinance. This was not our intent. It should be okay if it is one unit, with contiguous parcels. Minutes of Work Session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 12 of 14 Pages LUKE: We might have a hard time getting this past the Planning Commission. (A general discussion took place regarding various uses and how this issue could be addressed.) CRAGHEAD: This would be a Code interpretation. Even if the Planning Commission didn't approve, the Board can decide otherwise. The choices are: • The applicant could pull the application back, and go for Plan change; then reapply; • The Board could rule that the intent was that contiguous should be allowed; • The Board could rule the intent was not to consider contiguous parcels; or The Board could suggest the applicant combine the lots, but the applicant would lose farm deferral. It could be argued either way. The subject property could be interpreted as the entire thing, two adjacent parcels, not just the legal lot. LUKE: Some farm properties have roads through them, though. CRAGHEAD: You could say it can't be separated by another ownership. BLIKSTAD: You could say that they have to be contiguous with nothing separating them. LUKE: The road is just a driveway in this case. CRAGHEAD: If it is a public right of way, you need to decide if this cuts off the adjacency. CLARNO: A driveway shouldn't matter. It should be adjacent with no road separation. LUKE: This should go through a public process. 1vi111utes of worx session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 13 of 14 Pages CRAGHEAD: It's just a matter of interpreting the Code in this case. DALY: If we allow this, it could set precedence. If LUBA reversed us, we could go through the process then. This could be used to clarify our intention. CRAGHEAD: State law isn't absolutely clear on this issue, either. Being no further discussion, the meeting adjourned at 10.-05 a.m. DATED this 3rd Day of April 2006 for the Deschutes County Board of Commissioners. .-Denni R. Luke, Chair Bev Uarno, Vice ATTEST: Recording Secretary . Ddly, Vommissioner ivimuies or work session - Lundgren Appeal - Home Occupation Monday, April 3, 2006 Page 14 of 14 Pages