2021-328-Order No. 2021-035 Recorded 8/5/2021 Recorded in Deschutes County CJ2021-328
Steve Dennison, County Clerk 08/05/2021 12:03:12 PM
REVIEWED Commissioners'Journal
�SES G2� IIIIIIIIIIIIIIIIIIIIIIIIII �� III
LEG L COUNSEL 2021-328
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings
Officer's Decision in File Nos. 247-21- * ORDER NO. 2021-035
000263-A,247-21-000340-LM,and 247-21-
000070-AD.
WHEREAS, on June 10, 2021, the Hearings Officer approved Application Nos. 247-21-
000263-A, 247-21-000340-LM, and 247-21-000070-AD; and
WHEREAS, on June 23, 2021, Ronald and Rachel Thompson, the Appellants, appealed (File
No. 247-21-000628-A) the Deschutes County Hearings Officer's Decision on File Nos. 247-21-
' 000263-A, 247-21-000340-LM, and 247-21-000070-AD; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Deschutes County
Board of County Commissioners ("Board") discretion on whether to hear-appeals of Hearings
Officers'decisions; 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. That it will not hear on appeal application 247-21-000628-A pursuant to Title
22 of the Deschutes County Code and other applicable provisions of the County land use
ordinances.
Section 2. Pursuant to DCC 22.32.015,the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 5. The record for file nos. 247-21-000263-A, 247-21-000340-LM, and 247-21-
000070-AD (appeal file no. 247-21-000628-A) is as presented at the following website:
ORDER NO.2021-035
' https://www.deschutes.org/cd/page/247-21-000263-247-21-000340-Im-and-247-21-000070-ad-
replacement-dwelling-exclusive-farm-use
I
DATED this , day of/ . t 2021.
BOARD OF COUNTY COMMISSIONERS '
atti.
ANTHONY DeBONE, Chair
1'44V
ATTEST: PHIL CHANG,Vice hair,
MIIK- 6:S *6&_
k,z________
Recording S cretary PATTI ADAIR, Commissioner
c
ORDER NO.2021-035
�wr ES CO2
k BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 4,2021
SUBJECT: Consideration of Board Signature of Order No. 2021-035,Whether to Hear
Appeal of a Hearings Officer Approval of an Application for a Replacement
Dwelling
RECOMMENDED MOTION:
BACKGROUND AND POLICY IMPLICATIONS:
Before the Board of County Commissioners is an appeal of the Hearings Officer's decision
approving a proposal for a replacement dwelling in the Exclusive Farm Use Zone and the
Landscape Management and Wildlife Area Combining Zones proposed by property owners
Robert Kim and Karen Reed. Ronald and Rachel Thompson filed a timely appeal of the Hearings
Officer's decision. The Board will consider Order No. 2021-035 and whether to hear the matter
on appeal.
See attached memorandum for further background information.
BUDGET IMPACTS:
None
ATTENDANCE:
Cynthia Smidt,Associate Planner
‘N'T Es coG
cam`'' vote"��
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Board of County Commissioners
FROM: Cynthia Smidt,Associate Planner
DATE: July 26, 2021
RE: Appeal of Hearings Officer's approval of an application to replace a dwelling in the
Exclusive Farm Use Zone, and the Landscape Management and Wildlife Area
Combining Zones.
On August 4, 2021 the Board of County Commissioners (Board) will consider hearing an appeal of\
Hearings Officer decision (247-21-000263-A, 247-21-000340-LM, and 247-21-000070-AD)approving
a proposal for a replacement dwelling in the Exclusive Farm Use Zone, and the Landscape
Management and Wildlife Area Combining Zones.
I. BACKGROUND
Robert Kim Reed and Karen Reed submitted a request for an Administrative Determination and Site
Plan review for a replacement dwelling.The 25.44-acre subject property is located at 50745 Masten
Road, which is adjacent to the Little Deschutes River and southwest of La Pine city limits by
approximately 4.5 miles.The subject property is shown below in Figure 1.
The request includes replacing the existing single-family dwelling that was established in 19491.The
existing development on the property is located in the northern region of the property adjacent to
Masten Road.The proposed replacement dwelling will be located in an upland area among a cluster
of trees that is southeast of the existing dwelling by approximately 700 feet and adjacent to the
eastern property boundary. The proposed dwelling location will.also be adjacent to a 30-foot
vehicular access easement, which runs parallel to the eastern property boundary. This access
easement is primarily used by the neighboring property to the south (50645 Masten Road,Tax Lot
1701 shown below in Figure 1),which is owned by Ronald and Rachel Thompson,the appellants in
this case.
'The dwelling was lawfully established in 1949 and then a structural addition was constructed in the 1970s.
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005,Bend,OR 97708-6005
i,(541)388-6575 @ cdd@deschutes.org ®www.deschutes.org/cd
Figure 1 -Vicinity Map
-xJ I�1
lL
I ', I VJI, L_.��
1 L f ,r' MASTEN ROAD
1704
M v..
1700 1600
1705
L• 702r,ref
1706
24,79
AC f
. 0. I
'7 AC)
r L -.'1701
111,\ 1=i - 1800
L
II. HEARINGS OFFICER DECISION
There were two matters before the Hearings Officer:
1. An appeal of an administrative decision approving the establishment of a replacement
dwelling in the Exclusive Farm Use (EFU), and Wildlife Area Combining (WA) Zone (File 247-
21-000263-A and 247-21-000070-AD); and
2. The applicant's request for approval of a Visible Landscape Management Review in the
Landscape Management Combining(LM)Zone (File 247-21-000340-LM)
On June 10, 2021, the Hearings Officer issued a decision affirming staffs approval of the
replacement dwelling in the EFU Zone as part of File 247-21-000070-AD, and approved the site plan
review in File 247-21-000340-LM Zone. The Hearings Officer's decision included several conditions
of approval typical of this type of land use application.
III. RONALD AND RACHEL THOMPSON APPEAL
The appellants, Ronald and Rachel Thompson, appeal the Hearings Officer decision, and indicate
various assignments of error in their notice of appeal.The following summarizes their concerns:
247-21-000628-A,-000263-A,-000340-LM,and -000070-AD Page 2 of 4
• Hearings Officer missed or ignored main points of appeal
• Hearings Officer made false statements
• Hearings Officer made improper findings regarding the access easement
• The hearing process and initial staff decision contained procedural irregularities
The appellants have not stated whether they would like the hearing before the Board be heard de
novo, limited de novo, or on the record.
IV. BOARD OPTIONS
There are two versions of Order No. 2021-035 attached to this memo; one to hear the appeal and
one to decline to hear the appeal. In determining whether to hear an appeal, the Board may
consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendation of staff2
In addition, if the Board decides to hear the appeal, it may consider providing time limits for public
testimony.
Reasons to hear:
• The Board may want to take testimony and make interpretations relating to the Hearings
Officer's decision.The Board may also want to reinforce or refute some or all of the decision
findings/interpretations prior to Land Use Board of Appeals (LUBA)review.
If the Board chooses to hear this matter,staff notes that the applicant has requested that it be heard
on the record.The appellants have not stated whether they would like the hearing before the Board
be heard de novo, limited de novo, or on the record. Under DCC 22.32.027(B)(3) the Board may
choose to hear a matter de novo at their sole discretion.
Reasons not to hear:
' r
• The Hearings Officer's decision is reasoned, well written, and could be supported, as the
record exists today on appeal to LUBA.
• The applicant agrees with the Hearings Officer's decision and thus requests that the Board
not hear the appeal.
If the Board decides that the Hearings Officer's 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
2 Deschutes County Code(DCC)22.32.035(B)and(D)
247-21-000628-A,-000263-A,-000340-LM,and -000070-AD Page 3 of 4
provided bylaw. The decision on the land use applications becomes final upon the mailing of the
Board's decision to decline review.
V. STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal because staff believes that the appellants were
able to present all relevant evidence at the hearing before the Hearings Officer. Staff agrees with
the Hearings Officer's analysis and decision. In addition, staff does not believe the Hearings Officer
decision presents a policy issue.
VI. 150-DAY LAND USE CLOCK
The two land use permits, 247-21-00070-AD and 247-21-000340-LM, were submitted and
considered complete at different times. However, during the public hearing before the Hearings
Officer, the applicant agreed to extend the review clock for File 247-21-000070-AD for 48 days in
order to match the review clock of File 247-21-000340-LM.The 150th day on which the County must
take final action on these applications is September 10, 2021.
VII. RECORD
The record for appeal File 247-21-000628-A (247-21-000263-A, 247-21-000340-LM, and 247-21-
000070-AD) is as presented at the following Deschutes County Community Development
Department website:
https://www.deschutes.org/cd/page/247-21-000263-247-21-000340-Im-and-247-21-000070-ad-
replacement-dwelling-exclusive-farm-use
Attachments:
Document Item No.
2021-07-26 DRAFT Board Order 2021-035 Accept to Hear 1
2021-07-26 DRAFT Board Order 2021-035 Decline to Hear 2
247-21-000628-A,-000263-A,-000340-LM,and -000070-AD Page 4 of 4