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2017-43-Minutes for Meeting June 30,1999 Recorded 2/23/2017DESCHUTES COUNTY OFFICIAL RECORDS CJ 2017 43 NANCY BLANKENSHIP, COUNTY CLERK V T COMMISSIONERS' JOURNAL 02/23/2017 11:53:52 AM 1211111111111111111 Do not remove this page from original document. Deschutes County Clerk Certificate Page EXCERPT FROM MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS. June 30, 1999 1 DECISION OF WHETHER TO HEAR APPEAL A-99-5 OF THE HEARINGS OFFICER'S DECISION ON WHETHER A DECK WAS LAWFULLY, ESTABLISHED AND CAN BE USED TO MARK THE INTENT OF A LAWFUL NON -CONFORMING RIVER SETBACK FOR JAMES. MCKENNEY AND SIGNATURE OF ORDER NO. 99-116. Before the Board of County Commissioners was a decision of whether to hear appeal A-9-5 of the Hearings Officer's decision on whether a deck was lawfully established and can be used to mark the intent of a lawful non- conforming river setback for James McKenney and signature of Order No. 99- 116. Commissioner Swearingen stated that based on what they heard on Monday, the Board did not feel that his deck had been lawfully established in time to allow Mr. McKenney the opportunity build on to his house. Commissioner Swearingen asked if James McKenney had any evidence to provide to the Board that this deck was lawfully established. Jim McKenney, 5622 Solar Drive, provided information to the Board as to how they got to this point. He stated all he was requesting was a full hearing before the Board to provide information that prove that his addition to his home should be allowed. He reported he had been working with the Planning Division since last October. He stated that in the staff report he was led to believe things would come out favorably for him and if the deck was legal, they were going to approve his addition. He stated he then received a staff recommendation stating it was not approved plus it was switched from a landscape management application to an administrative determination. He went to the Planning Department to find out what an administrative determination was. He stated he was not aware of any shift in the requirements because of the change from landscape management to an administrative MINUTES Page 1 of 5 JUNE 30, 1999 determination. He thought that when he went to the hearing he was prepared. He stated that after the Hearings Officer's denial, he hired an attorney. He said that all he was asking for was a hearing so the Board could consider this issue. Mr. McKenney stated he had talked with the Hearings Officer that had conducted the hearing in 1980. He had agreed to provide evidence before the Board saying that the variance was to allow the deck to be built onto the structure. He stated that back in 1980 the Hearings Officer allowed structures to be built within 50 feet of the river. He stated he did not own the property in 1980. Commissioner Luke asked if the 100 foot setback was in place when Mr. McKenney bought the property. Mr. McKenney stated he bought the property three years ago. Mr. McKenney stated that if they had asked to build the house to within 50 feet, in 1980 the Hearings Officer would have said yes. Commissioner Luke stated that no one was going to make him take his deck or building down. Commissioner Luke stated that they question was whether Mr. McKenney could do an addition on to a pre-existing building that does not conform to the current law. Tracy White explained what happen with this application. Tracy reported that the code required landscape management review for a substantial addition of 25% or cost of the existing building. Mr. McKenney's addition was not 25%. The other criteria that was required originally was the standard for an addition to an existing structure to within the 100 foot setback. Tracy White reported that when the hearing was had the LM criteria had been eliminated. He was only held to the criteria for the expansion of an existing building within the 100 foot setback. She stated criteria had been removed, not added. Tracy stated they were not dealing with a non -conforming use. She felt they were dealing with a legal use or an illegal use. MINUTES Page 2 of 5 JUNE 30, 1999 Commissioner Swearingen asked when the deck was built. Tracy White reported that Mr. McKenney had provided records from the Assessor's Archives which show the deck being there in 1981. Commissioner Swearingen asked when the rule went into effect. Tracy White stated it went into effect in 1979. She stated we were not dealing with a non- conforming structure. Tracy White reported the deck was not shown on any plot plan. Tracy reported the building permit for the house was dated in 1981. Jim McKenney stated there was a provision in the County Code that said if a structure had been in existence for 10 years, and it hasn't changed, it was presumed to be legal. Commissioner Luke stated there was no questions that the building was legal. He stated that what Mr. McKenney was asking for was an addition to that building within the 100 foot setback. Mr. McKenney stated that the Hearings Officer said that if he had proven that the deck was legal, she would allow the addition. He felt that if the deck was legal, then there was no issue. He felt that since the deck had been there for 10 years, it was legal unless someone could prove that it was illegal. Commissioner Luke stated that it was legal in the fact that someone cannot make Mr. McKenney tear it down. He further stated that it was not legal in the fact that it did not meet code. Tracy White felt that they would not get to the criteria that Mr. McKenney was talking about unless they were reviewing a non -conforming use. Tracy felt that if the Board chose to hear this, they would be reviewing the 1980 variance approved by the Hearings Officer. Commissioner Luke asked how closed the addition Mr. McKenney was requesting would be to the river. Mr. McKenney stated it would be 53 feet from the river. MINUTES Page 3 of 5 JUNE 30, 1999 Tracy White read from the decision V80-46. The decision was for approval subject to conditions. The building structure shall be placed no closer than 75 feet to the high water mark or line. Commissioner DeWolf asked if there was any information in the decision from 1980 that allowed anything to be built within 50 feet of the river. Tracy stated there was not. Commissioner Swearingen asked how much Mr. McKenny had paid for the application. Jim McKenney reported he had paid $370 to apply for the landscape management review. He paid $220 for the reconsideration of the Hearings Officer. He paid about $1,020 to bring a hearing to the Board. SWEARINGEN: It be be my recommendation based on what we've heard that we refund the $1,020 to Mr. McKenney and not hear the appeal. SWEARINGEN: (Amended motion) I would amend my motion to be whatever Mr. McKenney paid to Deschutes County in regards to this (the entire amount). Commissioner Swearingen stated she would withdraw her motion since there was no second. DEWOLF: I would move that we refund all of the appeal application money. LUKE: Second. VOTE: SWEARINGEN: YES DEWOLF: YES LUKE: YES MINUTES Page 4 of 5 JUNE 30, 1999 SWEARINGEN: I move that we approve Order No. 99-116, with the change in Section 2 that there should be a refund of $1,020. DEWOLF: Second. VOTE: SWEARINGEN: YES DEWOLF: YES LUKE: YES DATED this 30th day of June, 1999 by the Deschutes County Board of Commissioners. ATTEST: x..74. < i s Recording Secretary inda L. Swearingen hair Tom DeWolf, Commissioner Dennis R. Luke, Commissioner MINUTES Page 5 of 5 JUNE 30, 1999