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2009-115-Order No. 2009-016 Recorded 3/23/2009REVIEWED DESCHUTES COUNTY OFFICIAL RECORDS ^ } 20091 NANCY BLANKENSHIP, COUNTY CLERK 1iJ ~7 1 COMMISSIONERS' JOURNAL LEGAL COUNSEL 03/23/2009 02;29;34 PM I II III I IIIIIIIIIIIII III III BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying Review of Hearings Officer's Decision in File no. MA-07-5/TP-06-983 (A-07-16) ORDER NO. 2009-016 WHEREAS, Applicants Delmar and Deloris Kennel appealed the Deschutes County Hearings Officer's decision on application number MA-07-5/TP-06-983; and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the applicants provided written consent, in a letter dated October 30, 2007, to waive the 150-day clock and requested a 90-day extension, in a letter dated December 19, 2007, of the Board's review until March 3, 2008; and WHEREAS, the applicants requested, in a letter dated March 10, 2008, for a second delay of the decision on whether or not to hear the appeal and the Board approved a delay of one (1) year, from March 12, 2008 to March 11, 2009; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board, hereby, denies review of the applicant's appeal for Case Number MA-07-5/TP- 06-983 (A-07-16) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. The 150-day clock has been waived and the extension period of one (1) year for the decision has expired. Dated this /&T~of N~MV'C& , 2009 ATTEST: "Recording Secretary BOARD OF COUNTY COMMISSIONERS -DE, CHUTES COUNTY OREGON TAMMY aANEY, CHAIR DE IS R. LUKE, VICE CHAIR ALAN UNGER, COMMISSIONER PAGE 1 OF 1 - ORDER NO. 2009-016 TE Z~ Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM March 12, 2008 To: Deschutes Board of County Commissioners From: Chris Bedsaul, Associate Planner Subject: Appeal of Hearings Officer Denial of a 7-lot subdivision for Kennel, MA07- 5/TP06-983 BACKGROUND The applicant is proposing to create a 7-lot subdivision within 35.15 acres following Deschutes County Measure 37 Claim approval of Waiver Order No. 2005-110 and State of Oregon Measure 37 Claim approval of Waiver No. M11874. A public hearing was conducted by the Hearings Officer for the proposed subdivision on July 17, 2007. The Hearings Officer's decision, dated October 16, 2007, denied the request to create the seven (7) new lots eligible for single-family dwellings due to failure of the applicant to demonstrate that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law pertaining to the siting of dwellings on EFU land. In summary, the Hearings Officer found that the proposed subdivision did not comply with statutory provisions mandating the preservation of agricultural land and that the dwelling proposed on the lots were not "customarily provided in conjunction with farm use." The applicant's original burden of proof did not contain an analysis of land use patterns in the area required by ORS 215.263. The applicant's appeal has requested the opportunity to supplement the staff analysis to address ORS 215.263. The applicant's appeal also asserts a significant policy issue for the Board regarding Measure 37 subdivisions that are submitted after the adoption of Senate Bill 100, but before the adoption of the Exclusive Farm Use Zones and Comprehensive Plan and Zoning acknowledgement by LCDC. The applicant did not cite any specific policy issues. The applicant filed a timely appeal on October 30, 2007. The applicant has waived the 150-day decision period in the notice of appeal dated October 30, 2007. The applicant's attorney, in a letter dated December 19, 2007, requested a 90-day extension for a final decision by the Board regarding the appeal, in order for the applicant to review and consider Measure 49 impacts on the subdivision application. Quality Services Performed with Pride On March 10, 2008, the applicant's attorney submitted a letter requesting that the Board grant a second delay of the appeal decision. The Board deliberated on the applicant's request and approved Order No. 2008-022 for an appeal decision delay of one (1) year, from March 12, 2008 to March 11, 2009. The applicant's request for the extension time to delay the Board's decision for the appeal has expired. Except as set forth in DCC 22.28.030, when there is an appeal of a land use action and the Board of County Commissioners is the Hearings Body: A. The Board may on a case-by-case basis or by standing order for a class of cases decide at a public meeting that the decision of the lower Hearings Body of an individual land use action or a class of land use action decisions shall be the final decision of the County. B. If the Board of County Commissioners decides that the lower Hearings Body decision shall be the final decision of the County, then the Board shall not hear the appeal and the party appealing may continue the appeal as provided by law. In such a case, the County shall provide written notice of its decision to all parties. The decision on the land use application becomes final upon mailing of the Board's decision to decline review. C. The decision of the Board of County Commissioners not to hear a land use action appeal is entirely discretionary. D. In determining whether to hear an appeal, the Board of County Commissioners may consider only: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and 3. Recommendations of staff. RECOMMENDATION Deschutes County Hearings Officers have determined in multiple "Declaratory Ruling" decisions regarding Measure 37 claims, that when an applicant has received decisions on Measure 37 waivers from DLCD and the BOCC, the Measure 37 claims have no legal effect, except to the extent, if any, that the applicant has a validated common law vested right to proceed. The applicant has not requested or received a "Declaratory Ruling" to determine a lawful common law vested right, therefore, staff recommends the Board deny the appeal. r i , • October 30, 2007 HAND DELIVERED Neil R. Bryant DESCHUTES COUNTY COMMUNITY. Robert S. Lovlien DEVELOPMENT DEPT. Lynn F. Jarvis ATTN: CHRIS BEDSAUL John A. Berge 117 NW LAFAYETTE AVE. Sharon R. Smith BEND, OR 97701 John D. Sortie Mark G. ReUnde . e Melissa P Laud Re: Applicant: Delmar and Dolores Kennel Kibi C Ford File No.: MA07-5/TP06-983 Paul J. Taylor Request: 'Notice of Appeal Christopher A. Bagley, Kyle D. Wuepper Dear Chris: Jeremy M. Green Kelly L. schukart Enclosed is an original and three copies of our Notice of Appeal of Land Use Helen L. Fastwood Application No. MA05-VIT06-983. Also enclosed is our check in the amount of $2,269.00 as payment of the filing fee. Please advise as to when this matter will be set for hearing before the Commissioners. BEND 591 S.W. Mill View Way Please call me if you have any questions.. . Mail. P.O. Box-880 Bend, Oregon M09 Very truly yours, Phone (541) 3824331 Fax: (541) 389-3386 wwwauLAwvEascom ROBERT S. LOVLIEN RSL/alk Enclosures cc: Mr. and Mrs. Del Kennel (w/ enclosures) 3008-005100.doc Community Development Department Planning Division 117 NW Lafayetta Avenue;. Bend, OR 87701-1925 (541) 3888575 - Fax (541) 385.17634 htl;F//www.d9schutes.org/r.dd APPEAL APPLICATION FEE: •$2, 2.69.00 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. - If the Board of County Commissioners is the'Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de nova review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. It is the responsibility of the Appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Appellant's Name (print): Delmar & Dolores Kennel Phone:( 54J 389-5733 Mailing Address: 61405 K-Barr Rd. City/State/Zip:. Bend, OR 97701 Land Use Application Being Appealed: MO 5 - 5 / TPO 6 - 9 8 3 Property Description: Township 18 Range 13 . ~Seet~on 1 13 Ox Lot 800 Appellant's Signature: B Robert S. Lovlien, OSB #74+197 Of Attorneys for Appellants EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION.UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 1107 NOTICE OF APPEAL (This page may be photocopied if additional space is needed.) BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS APPLICANT: ) File No.: DELMAR and DOLORES KENNEL, ) NOTICE OF APPEAL husband and wife. ) APPLICANT/ OWNER: DELMAR and DOLORES KENNEL 61405 K-BARB RD. BEND, OR 97701 O~ ~/4 ATTORNEY: ROBERT S. LOVLIEN/HELEN L. EASTWOOD BRYANT LOVLIEN & JARVIS, PC P.O. BOX 880 BEND, OR 97769 ENGINEER: TYE ENGINEERING & SURVEYING, INC. 725 NW HILL ST. BEND, OR 97701 REQUEST: Applicant requested approval of tentative plat for a seven-lot subdivision in the EFU (exclusive farm use) Zone, Alfalfa Subzone, pursuant to a waiver of land use regulations under Measure 37, and is appealing the decision of the Hearings Officer issued October 18, 2007, which denied the application. LOCATION: East of Bend and South of U.S. Highway 20 on K-Barr Road; Map 18-13- 10, tax Lot 800. ZONING: The property is currently zoned EFU/AL (Exclusive Farm Use/Alfalfa Subzone). The Applicants (Appellants) applied for a seven-lot subdivision on 33.15 acres. The Hearings;Qcer in her decision issued October 16, 2007, and mailed October 18, 2007, denied the Applicants' request for the seven-lot subdivision. A copy of said Decision is attached hereto as Exhibit " Ai and inco.Fporated herein by reference. Her decision is based upon her conclusion that ORS 215.263(3), in effect in October of 1974, is not satisfied because a subdivision does not conform to the agricultural land policies set forth therein. The Hearings Officer relies upon a Sutei ent:inade in the Staff Report addressing not ORS 215.263(3), but rather criteria set forth in DCC 17.16.100(A): Page 1 of 3 NOTICE OF APPEAL 3008-005 300.doe BRYANT, LOVLIEN k JARVIS, PC ATI MMa ATIAw, wAaigm 1915 591 SW MM YewWay PO Box 860 Bend, Oregon 97709-0880 (541) 382 MI fax(541)3893W www.9LJLAwvEAs com In the Staff Report, at Page 16, the Staff was addressing the criteria of DCC 17.16.100(A). This criterion reads.as follows: "The subdivision contributes to orderly development and land use patterns in -the area, and provides for the preservation of natural features and resources, such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources." In the discussion, the Staff made the following statement: "Staffbelieves.the proposed subdivision would adversely impact agricultural resources in the area by converting viable farm land to residential use." However, later, in the same section, Staff stated that in its belief, the preservation of agricultural. lands had apparently been waived by the, State. and County and that therefore, the criterion of the.preservation of agricultural lands had. been waived by both the State of Oregon and Deschutes County. Earlier in the Staff Report, the Staff also addressed the provisions of ORS 215.203 and ORS 215.263. In reviewing those; statutes, the Staff Report stated as follows: "As discussed above, Staff believes the dwellings on the proposed subdivision lots will be dwellings in conjunction with farm use. For the same reasons, Staff believes that they would -satisfy the requirements of ORS 215.203, ORS 215.243 and ORS 215.263 that were applicable to the subject property in October, 1974. For the foregoing reasons, Staff believesthe Applicants' proposed subdivision will create lots capable of meeting the requirements of ORS 215.203, ORS 215.243, ORS 215.263, and all of the subdivision lots will meet all applicable standards established by PL-5 that applied to the subject property in October of 1974 when Mr. and Mrs. Kennel acquired it." Despite those conclusions, the Hearings Officer relied upon the Staff comments under DCC 17.16.100(A) as "substantial evidence that the proposal will not contribute to the agricultural economy. Therefore, ORS 215.263(3) is not satisfied because the subdivision does not conform to the agricultural lands policy." The Staff and the Hearings Officer have a distinct difference of opinion as to whether or not the requirements of ORS 215.203 and ORS 215.263(3) have been satisfied. The Hearings Officer relies upon proposed findings from the Staff Report that address not the criteria of the Oregon Revised Statutes, but the criteria set forth in DCC 17.16.100, which Planning Staff believes have been waived in this instance. The site consists of 35.15 acres and contains 21.6 acres of irrigation water. Under the proposed subdivision, each lot will be provided a minimum of two acres of irrigation water rights and no water rights will be transferred from the subject property. The agricultural land will be preserved and most likely put to a more intensive use than current exists. Page 2 of 3 NOTICE OF APPEAL 300&005 300.doc BRYANT, LOVLIEN & JARVIS, PC AMP14 Y9ATL1W,ESEABLISHM1975 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-CM (541).V2-4331 fax (541) 389,3386. wW W.Bt1AWYER&COM The criteria are substantially different. DCC 17.16.100 speaks to a subdivision contributing to orderly development and land use patterns in the area, and preservation of agricultural lands. The criteria of ORS 215.263 speaks to the limited:supply of agricultural land necessary for the conservation of the State's economic resources and preservation of such land in large blocks as necessary to maintain the agricultural economy of the State. There is a distinct difference because most small farms in Central Oregon do not have an impact on the agricultural economy of this State. Applicants are prepared to submit an analysis of the land use patterns of the surrounding area for the purposes of the'review required by ORS 215.263. Applicants submit that this is different than the analysis' of land use patterns that was provided by Planning Staff and relied upon by the Hearings Officer. This appeal presentsa significant policy issue for the Board of Commissioners with regard to Measure 37 subdivisions that are submitted after the adoption of Senate Bill 1'00, but before the adoption of the Exclusive Farm Use Zones and Comprehensive Plan and Zoning Acknowledgement by LCDC. Applicants' attorney does not recall the County requiring any review of agricultural subdivisions if the subdivision met the minimum lot size criteria of PL-2 and PL-5 in effect during the. 1970s. 4. The Applicant hereby waives the 150-day rule as required by DCC 22.32. THEREFORE, because of the policy issues involved, the Applicant requests a de novo review by the Board. Dated this k day of October, 2007. BRYANT, LOVLIEN & JARVIS, P.C> ROBERT S. LOVLIEN, OSB# 74197 Of Attorneys for Applicants/Appellants Page 3 of 3 NOTICE OF APPEAL 3008-005 300.doe BRYANT, L OVLIEN & JARVIS, PC ATDORNm AT LAW, EnAa lmm 1915 591 SW MM V- Way PO Box 880 Bend, Oregon 97709.0880 (541) 382-4331 fax (541) 3893386 W W W.BLjLAwyEMCOM o'~J~ES as rv ~ { Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc AGENDA REQUEST & STAFF REPORT For Board Business Meeting of March 16, 2009 Please see directions for completing this document on the next page. DATE: March 6, 2008 FROM: Chris Bedsaul, Associate Planner. CDD 383-6719 TITLE OF AGENDA ITEM: Consideration of Board Signature of Order 2009-016 denying review of the Hearings Officer's decision in File No's. MA-07-5/TP06-983 for a 7 lot subdivision proposal by Delmar and Deloris Kennel. PUBLIC HEARING ON THIS DATE? NO. BACKGROUND AND POLICY IMPLICATIONS: The Kennels applied for a tentative plat approval for a seven lot subdivision in the Exclusive Farm Use - Alfalfa (EFUAL) zone following approval of a measure 37 waiver. The Hearings Officer denied the request to create the seven new lots eligible for single-family dwellings due to failure of the applicant to demonstrate that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law pertaining to the siting of dwellings on EFU land. The applicant agreed to waive the 150-day decision clock in the appeal of the Hearings Officer's denial of File No's. MA-07-5/TP06-983 for a 7 lot subdivision proposal. On March 12, 2008, the Board deliberated and approved a one (1) year extension of a Board decision on whether or not to hear an appeal submitted by Delmar and Deloris Kennel. The applicant's request for the one (1) year extension time to delay the Board's decision for the appeal has expired. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Staff recommends that the Board sign Order 2009-016. ATTENDANCE: Chris Bedsaul. DISTRIBUTION OF DOCUMENTS: Copy of the Order to Chris Bedsaul ASAP.