2022-58-Order No. 2022-008 Recorded 2/25/2022REVIEWED
am/
LEGAL COUNSEL
Recorded in Deschutes County CJ2022-58
Steve Dennison, County Clerk
commissioners' Journal 02/25/2022 10:50:26 AM
2022-58
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings
Officer's Decision on File No. 247-21- * ORDER NO. 2022-008
000756-CU.
WHEREAS, on January 28, 2022, the Hearings Officer approved File No. 247-21-000756-CU;
and
WHEREAS, on February 9, 2022, the Windlinx Ranch Trust, the Appellant, appealed (Appeal
No. 247-22-000109-A) the Deschutes County Hearings Officer's Decision on File No. 247-21-
000756-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 Appeal No. 247-22-000109-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 3. 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. 247-21-000756-CU as presented at the
following website:
https://www.deschutes.org/cd/page/247-21-000756-cu-kerr-template-dwelling
ORDER NO. 2022-008
DATED this 7-3 day of February, 2022.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
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at�
PATTI ADAIR, Chair
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ANTHONY DeBONE, Vice Chair
PHIL CHANG, Commissioner
ORDER NO. 2022-008
�AOV ES c-0
MEETING DATE:
February 23, 2022
SUBJECT: Board consideration of whether to hear an appeal of a Hearings Officer Decision
(Appeal No. 247-22-000109-A)
RECOMMENDED MOTION:
Move approval of Order 2022-008 an Order approving review of Hearings Officer's Decision in
File No. 247-21-000756-CU.
Or
Move approval of Order 2022-008 an Order denying review of Hearings Officer's Decision in File
No. 247-21-000756-CU.
BACKGROUND AND POLICY IMPLICATIONS:
Please see attached memorandum and case website linked below:
https •//www. desch utes. org/cd/page/247-21-000756-cu-kerr-template-dwelling
BUDGET IMPACTS:
None
ATTENDANCE:
Caroline House, Senior Planner
1
d t t? COMMUNITY DEVELOPMENT
as ;�
MEMORANDUM
TO: Board of County Commissioners
FROM: Caroline House, Senior Planner
DATE: February 16, 2022
RE: An appeal of the Hearings Officer's decision approving a single-family dwelling in the
Forest Use (F2) Zone; Land Use File No. 247-21-000756-CU and Appeal No. 247-22-
000109-A
On February 23, 2022, the Board of County Commissioners ("Board") will consider hearing an appeal
of the Hearings Officer's decision approving a conditional use permit to establish a single-family
dwelling in the Forest Use (F2) Zone.
I. PROCEDURAL HISTORY
A public hearing before a Hearings Officer was held on November 30, 2021. The Hearings Officer
issued an approval on January 28, 2022. Mr. Robert H. Windlinx, Jr., as a Trustee of the Windlinx
Ranch Trust, filed a timely appeal of the Hearings Officer's decision on February 9, 2022.
II. PROPOSAL
The applicant is requesting conditional use approval to establish a single-family dwelling in the
Forest Use (F2) Zone. The requested Forest Use dwelling type is a "Template Dwelling".
III. THE WINDLINX RANCH TRUST APPEAL
The Windlinx Ranch Trust, the appellant, requests the Board review the Hearings Officer's decision
on appeal to address the following summarized issues.
• The applicant does not have a long-term access agreement to the subject property.
• The applicant cannot legally use the County's property line adjustment process to increase
property benefited by an easement.
• The applicant has not met the template dwelling test requirements for the number of lots or
parcels within the required 160-acre template.
11 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q1 (541) 388-6575 @ cdd@deschutes .erg ® www.deschLites.org/cd
The subject property is capable of producing more wood fiber than documented by the
applicant.
The applicant has incorrectly illustrated the 160-acre template used to satisfy the template
test requirements.
The applicant's proposal will have significant impacts on the Windlinx Ranch Trust's tree farm
and increase the cost of accepted forest practices.
The applicant's proposal will significantly increase fire hazard and fire protection costs.
IV. BOARD OPTIONS
There are two Orders 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 staff'
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 well written and reasoned, and could be supported, as the record
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Land
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exists toddy of 11 appeal o U IC Lai d 'se oval d of r%ppeals (Lvun). The e appeal issue are NI III lul 11y
matters of state law interpretation and a Board decision would not be given deference if appealed
to LUBA. Both parties were well represented by land use attorneys. For these same reasons and
due to the increased cost to the client to prepare for a Board hearing, the applicant requests the
Board not hear the appeal.
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 review.
If the Board decides 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 application and associated appeal becomes final upon the
mailing of the Board's decision to decline review.
' Deschutes County Code 22.32.035(D)
247-21-000756-CU / 247-22-000109-A Page 2 of 3
V. STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal, because staff believes the appellant was able to
present all relevant evidence at the hearing and during the open record period. Further, staff agrees
with the Hearings Officer's analysis and decision. Finally, the appeal issues are primarily matters of
state law interpretation.
VI. 150-DAY LAND USE CLOCK
The 1501" day on which the County must take final action on this application is April 17, 2022.
VII. RECORD
The record for land use file no. 247-21-000756-CU and the notice of appeal are presented at the
following Deschutes County Community Development Department website:
https://www deschutes org/cd/page/247-21-000756-cu-kerr-template-dwelling
Attachments:
1. DRAFT Board Order 2022-008 Accepting Review of the Hearings Officer's Decision
2. DRAFT Board Order 2022-008 Declining Review of the Hearings Officer's Decision
247-21-000756-CU / 247-22-000109-A Page 3 of 3