2021-427-Order No. 2021-056 Recorded 10/26/2021REVIEWED
O&V)L
LEOAL COUNSEL
Recorded in Deschutes County CJ2021-427
Steve Dennison, County Clerk 1
Commissioners' Journal 0/26/2021 4:10:23 PM
2021-427
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 No. 247-21-000311- * ORDER NO. 2021-056
CU.
WHEREAS, on September 23, 2021, the Hearings Officer approved Application Nos. 247-21-
000311-CU; and
WHEREAS, on October 4, 2021, Central Oregon LanclWatch, the Appellant, appealed (File
No. 247-21-000895-A) the Deschutes County Hearings Officer's Decision on File No. 247-21-
000311-CU; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow
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 247-21-000895-A pursuant to Title
22 of the DCC and/or 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. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for file no. 247-21-000311-CU (appeal file no. 247-21-
000895-A) as presented at the following website:
ORDER NO. 2021-056
https://www.deschutes.org/cd/page/247-21-000311-cu-conditional-use-permit-nonfarm-
dwelling-single-family-dwelling-exclusive
DATED this day of i1 , 2021.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
ANTHONY DeBONE, Chair
PHIL CHANG, Vice Chair
PATTI ADAIR, Commissioner
ORDER NO. 2021-056
MEETING DATE: October 25, 2021
SUBJECT: Consideration of Board Signature of Order No. 2021-056, Whether to Hear
Appeal of a Hearings Officer Approval of an Conditional Use Permit for a
Nonfarm 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 nonfarm dwelling in the Exclusive Farm Use Zone proposed by
property owner Cynthia Grossmann. Central Oregon LandWatch filed a timely appeal of the
Hearings Officer's decision. The Board will consider Order No. 2021-056 and whether to hear the
matter on appeal.
See attached memorandum for further background information.
BUDGET IMPACTS:
None
ATTENDANCE:
Cynthia Smidt, Associate Planner
MEMORANDUM
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
DATE: October 18, 2021
RE: Appeal of Hearings Officer's approval of an application to establish a Nonfarm
Dwelling (single-family dwelling) in the Exclusive Farm Use Zone.
On October 25, 2021 the Board of County Commissioners (Board) will consider hearing an appeal
of Hearings Officer decision (247-21-000311-CU) approving a proposal for a nonfarm dwelling in the
Exclusive Farm Use Zone.
i, BACKGROUND
Cynthia Grossmann submitted a request for a conditional use permit for a nonfarm dwelling. The
5.19-acre subject property is located at 70445 Lower Valley Drive, approximately 8 miles west of
Terrebonne. The subject property was recognized as a legal Lot of Record pursuant to County file
LR-04-24, and subsequently adjusted through files LL-08-49 and LL-08-103. The subject property is
shown below in Figure 1.
The application was referred by Deschutes County Planning Division to the Hearings Officer for a
decision based primarily on concerns by Central Oregon LanclWatch (COLW). The public hearing was
set for August 10, 20211. Issues before the Hearings Officer are summarized below.
The Public Hearing agenda included an additional case, files 247-21-000658-A and 247-21-000384-CU. The
Hearings Officer accepted nearly identical testimony and documentary evidence related to both cases.
1 1 7 NW .afay(,tte Five r -i(. f end, Oi e,�,oii 9770A 1 P O E;(>x 6005, Rend, OR 97708 6005
(; @ c, d c. { c ;r f. i i. r .oi f? (, v ✓wvv,oi >( r,rCc of /cd
Figure 1 - Vicinity Map
Subject
Property
II. HEARINGS OFFICER DECISION
There were several matters before the Hearings Officer brought forward by COLW:
Subject Property Not Lawfully Created. COLW argued that the subject property was not a
lawfully created unit of land under ORS 215.284(2)(c), ORS 215.263 and DCC 18.16.050
(G)(1)(a)(vi).
2. Applicant's Lot Line Adjustment Approval and Subsequent Recording of Deeds Changed the
Subject Property's Date of Creation. COLW argued that applicant's 2009 approved application
for a lot line adjustment related to the subject property and the applicant's subsequent
recording of one or more deeds reflecting the lot line adjustment constituted a
reconfiguration that changed the effective date of creation for the subject property.
247-21-000895-A and-000311-CU Page 2 of 5
3. Suitability for Farm Use. COLW disputes the conclusion by staff and the applicant that the
subject property is generally unsuitable for farm uses.
4. Soils. COLW requested the Hearings Officer disregard the applicant's soil scientist report and
if considered by the Hearings Officer, COLW disagreed with the methodology and
conclusions contained in applicant's soil scientist's report.
5. Code Violations. COLW alleged code violations exist that should preclude approval of
applicant's nonfarm conditional use permit.
6. ORS 92.017. COLW argues that staff and the applicant misinterpreted the effect of ORS
92.017 on the ORS 215 definition of "parcel" and County definition of "Lot of Record". This
argument is related to arguments 1 and 2, above.
7. DCC 17.04.020 and ORS 92.012. COLW argued that DCC 17.04.020 and ORS 92.012, which
state that a property may not be subdivided or partitioned except in conformance with
various laws, are relevant because the creation of the property qualifies as a partition.
Therefore if applied properly, this would result in the applicant's nonfarm conditional use
permit being denied.
On September 23, 2021, the Hearings Officer issued a decision affirming staffs approval of the
nonfarm dwelling in the EFU Zone. As previously stated, the Hearings Officer reviewed two matters
at the August 20, 2021 hearing where testimony and documentary evidence were virtually identical.
Tha rni W i«i iP-,and arui imants raisPr) in the case of file 247-21-000311-CU were the same as those
raised in the other case for files 247-21-000658-A and 247-21-000384-CU. The Hearings Officer's
decision in both cases included the following conclusion 2:
The Hearings Officer found that the Subject Property was created by deed in conformance
with DCC 18.04.030. The Hearings Officer found that Applicant's reconfiguration (Lot Line
Adjustment and subsequent recording of deed(s)) was not done for the purpose of qualifying
the Subject Property for a nonfarm dwelling. The Hearings Officer found that the Subject
Property was qualified for a nonfarm dwelling before the reconfiguration (Lot Line
Adjustment and subsequent recording of deeds to meet the requirements of the County
approval) and, qualified for a nonfarm dwelling after the reconfiguration the Subject
Property. The Hearings Officer found COLW's arguments related to the "generally unsuitable
for farm use standard" were not persuasive.
The Hearings Officer rejected COLW's request to ignore Applicant's soil scientist's report. The
Hearings Officer also rejected COLW arguments related to "code violation(s)," ORS 92.017
and DCC 17.04.02/ORS 92.012 arguments. In the end the Hearings Officer, based upon the
evidence and argument in the record, found COLW's appeal issues were not persuasive. The
Hearings Officer, therefore, finds that the Staff Decision as written should be sustained. The
2 This conclusion was made by reference to that of files 247-21-000658-A and 247-21-000384-CU.
247-21-000895-A and-000311-CU Page 3 of 5
Hearings Officer attached the Staff Decision is valid and shall be the decision, subject to any
appeal, of the County.
III. CENTRAL OREGON LANDWATCH APPEAL
The appellant, Central Oregon LandWatch, appeals the Hearings Officer decision, and indicates
various assignments of error in their notice of appeal. The following summarizes their concerns:
• The Hearings Officer's decision fails to distinguish between lots of record and parcels.
• The Hearings Officer's decision misinterprets ORS 92.017, fails to relate that statute to the
application, and lacks adequate findings.
• The Hearings Officer's decision lacks adequate findings, misinterprets and misapplies the
applicable law, misunderstands appellant's arguments, and lacks substantial evidence in
concluding the subject parcel cannot be used in conjunction with the applicant's directly
adjacent irrigated farmland. ORS 215.284(2)(b) and DCC 18.16.050(G)(2)(a).
The appellant recommends the Board not hear this matter; passing the review to the Land Use
Board of Appeals (LUBA). However, if the Board decides to hear the appeal, the appellant states
they would like the hearing to be heard de novo.
IV. BOARD OPTIONS
There are two versions of Order No. 2021-056 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 staff3
In addition, if the Board decides to hear the appeal, it may consider providing time limits for public
testimony.
Reasons not to hear:
• 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.
3 Deschutes County Code (DCC) 22.32.035(B) and (D)
247-21-000895-A and-000311-CU Page 4 of 5
• The appellant recommends the Board decline to hear this matter and thus passing the
review to LUBA.
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, the appellant requests the hearing be heard de novo. The
applicant has 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.
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
provided by law. 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- Staff also notes that there is not adequate time in the
150-day land use review clock and the applicant is not willing to extend it for Board review.
VI. 150-DAY LAND USE CLOCK
The 150' day on which the County must take final action on these applications is January 7, 2021.
VII. RECORD
The record for appeal File 247-21-000895-A (247-21-000311-CU) is as presented at the following
Deschutes County Community Development Department website:
https•//www deschutes or /g cd/page/247-21-000311-cu-conditional-use-permit-nonfarm-dwelling-
single-family-dwelling-exclusive
Attachments:
Document Item No.
2021-10-18 DRAFT Board Order 2021-056 Accept to Hear 1
2021-10-18 DRAFT Board Order 2021-056 Decline to Hear 2
247-21-000895-A and-000311-CU Page 5 of 5