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HomeMy WebLinkAboutCode Enforcement Manual UpdateCommunity Development Department Planning Division Building Safety Division Environmental Sods Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM Date: 09/24/2014 To: Board of County Commissioners From: Code Enforcement Staff— John Griley, Tim Grundeman; Lori Furlong - Supervisor RE: Code Enforcement Policy and Procedures Manual Update Summary The Board of County Commissioners (BOCC) held a public hearing on a draft update to the Deschutes County Community Development Department Code Enforcement Policy and Procedures Manual (Manual) on August 27, 2014. The purpose of the public hearing was to provide an opportunity for public comments and BOCC consideration of a draft Manual update, including long- standing Code Enforcement program policies. The Board closed the record for oral testimony at the conclusion of the hearing. The written record was left open for a period of seven days until Wednesday, September 3, 2014. The purpose of this work session agenda item is for the BOCC to discuss the draft Manual update, consider public comments, and provide direction to staff on next steps. Background The Deschutes County Community Development Department (CDD) Code Enforcement Program operates according to established policies and procedures. The current Manual was developed in the mid 1990s, adopted in 1996, and amended in 1997. The manual had not been formally reviewed or amended since 1997. For the past few years, the CDD Work Plan has included an action item to update the Manual "to reflect current practices," remove outdated sections, and review/discuss long-standing program policies. In coordination with the Board, CDD staff initiated the review in 2012. Staff subsequently coordinated with Assistant Legal Council and the Sheriff's Office and prepared a draft Manual update for public hearing. At the hearing CDD staff provided a general overview of the procedures manual review process, provided information related to program operations and objectives, and presented a decision matrix for BOCC consideration of long standing polices with respect to complaints, compliance and penalty. Quality Services Performed with Pride Staff also introduced into the record, one public comment which it had received prior to the hearing. At hearing the BOCC heard testimony from eight private individuals or entities. A summary of this testimony is provided in the attachment. Six public written comments were also submitted prior to the closing of the written record. Issues Identified Based on the record before the BOCC, predominate concern with the draft manual update appears to be a long standing procedures manual policy calling for the limitation or prohibition of permits or approvals on properties with an uncorrected code violation. Staff informed in the hearing that the policy had never been implemented, and recommended BOCC consider whether to retain or remove the provision from the Manual. During the hearing five parties testified calling for retention and implementation of the policy. Three parties spoke against retention and implementation. By the closing of the written record, the County received two additional comments over the policy — one in support, and one against. Other issues identified from oral and written testimony include: • Notice to complaining parties regarding the status of their complaint; • Concern over the amount of time it takes to resolve a code enforcement case; • Concern over priority ranking of violations in the manual (specifically, the lower priority indicated for zoning violations); • Concern over enforcement discretion afforded in the Manual; • Concern over code enforcement on properties/uses protected under the State Right to Farm Act; and • The Manual policy pertaining to CCRs (non -enforcement). Discussion / Staff Recommendation(s) / BOCC Direction: Procedures In work sessions to date, Code Enforcement staff has discussed with the board many of the other issues identified from public testimony. Some of these issues pertain to long standing policies regarding compliance, and are a focus in this Manual review. Other issues identified in the hearing, such as Code Enforcement consideration of the State Right to Farm Act, and enforcement of CCRs, are guided by statute. Based on public comments, staff recommends the following procedural change: • Incorporate text into the manual to include a procedure requiring the notification of complaining parties upon conclusion of complaint investigation and upon conclusion of a Code Enforcement case. This amendment will promote balanced communications in all investigations. Discussion / BOCC Direction: Policies The primary policy issue raised at the hearing is whether or not to retain and implement a policy to restrict permits or approvals on a property with code violations. The most salient consideration from the hearing is the legality of implementation. Staff has confirmed in consultation with the County Legal Department that the County would need to adjudicate a complaint before restricting development permits. Many jurisdictions have code provisions to serve as a guide or model to implement this policy. In addition, CDD's 2014-15 Work Plan includes the following action item: "Consider initiating a text amendment to prohibit the issuance of land use and building permits if a property has a pending code violation or is in violation with conditions of approval from a prior land use decision." Staff seeks BOCC direction on which of the following options to pursue given the current Manual policy, public comments, and CDD Work Plan regarding this issue 1. Maintain this policy in the Manual update, and direct staff to initiate a text amendment to implement this policy. (Note: The process to draft the text amendment would include staff meetings with proponents and opponents, and work sessions with the BOCC and Planning Commission prior to formally initiating the text amendment). 2. Remove this policy from the Manual, and direct staff to initiate a text amendment to implement this policy per Option 1. above. 3. Remove this policy from the Manual, and do not initiate a text amendment. 4. Other. In addition to the policy discussed above, Staff also seeks BOCC direction on whether or not changes should be made to the existing complaint policy, compliance policy and penalty policy (summarized on the matrix included in the BOCC's public hearing packet). The BOCC options are the following: 1. Maintain all existing policies. 2. Revise some or all of these policies. Staff seeks direction on which policies should be revised and the changes to be made. BOCC Direction Staff seeks BOCC direction on next steps: 1. Revise the draft Manual update per BOCC direction at this meeting and schedule a follow-up work session prior to scheduling deliberations. 2. Revise the draft Manual update per BOCC direction at this meeting and schedule deliberations at a regular Business meeting. 3. Other. August 27, 2014 CE Policy and Procedures Manual Hearing - Testimony Summary Steven Hultburg —Questioned the establishment of a violation when considering policy of limiting development land use permits. Suggests that complaints may not be founded or that County may not have proven that owner is in violation and believes policy violates State Law. Regarding the issuance of land use decisions, believes this to be even more problematic because State Law guides process on decisions. Merry Ann Moore —Supports policy of requiring resolution of CE case before owner can get a new development permit. Would like to see inclusion of a statement in County Code that violations run with land, even if owner changes the name of ownership or property is sold, and that violations must be resolved before any new permits are issued. Wants to point out that in County research of other jurisdictions, 8/11 do have a policy for restriction, 1/11 is undecided, 1/11 has a hybrid policy, and only one allows a permit on a property, so long as it is unrelated. Urges County to have language on restriction of development permits, and suggested Multnomah County's policy is optimal. Moey Newbold (Central Oregon Landwatch) — Testified that it is appropriate to require land owners to be in compliance with code before new development permits are issued. Andy High (COBA) — Emphasized that his understanding on the policy to restrict permits and approvals on properties with code violations is that the County would ensure that you are innocent until proven guilty. Understands that there are few instances that meet this criteria. Encourages the Board to remove the policy from the manual. Paul Lipscomb — Supportive of Voluntary Compliance, but believes County needs a stick in enforcement. Suggests language from Marion and Multnomah Counties should be considered in implementation of policy on restriction of development permits. William Kuhn — Supportive of text in manual regarding restrictions on development permits. Regarding timelines, believes they are excess in his experience. Bill Robe (Central Oregon Association of Realtor) — Believes this (restriction on development permits) an extreme tool for a problem that does not exist. Believes County has admirable record. Recommends removal of provision from manual. Nunsie Gould —Testified that she submitted a complaint in May of 2013, though was never contacted about County investigation of the complaint. Regarding whether to retain policy on restriction of permits/approvals with code violations, is supportive and would like to see a text amendment for implementation. Believes consideration should extend also to other properties owned by violator. Is concerned over prioritization of land use violation complaints. Does not believe they should be tiered below other violations. Is concerned over verbiage on reasonable time frames (e.g. what is reasonable?). Believes the County needs to tighten up the Code Enforcement program and procedures. Believes there are negative trends in the effectiveness of the program. Believes program scope needs to extend to County Risk Management issued event permits. CE Policy and Procedures Manual Hearing — Written Record From: Matt Cyrus [mailto:MattOaspenlakes.com] Sent: Saturday, May 24, 2014 12:59 PM To: Nick Lelack Cc: Matt Cyrus Subject: Public comment on Code Enforcement Manual To: Nick Lelack, Community Development Director From: Matt Cyrus, President of Deschutes County Farm Bureau Re: Comments on Draft Code Enforcement Manual I respectfully request that the new Code Enforcement Manual include provisions from DCC 19.12 (Right to Farm), especially with regard to DCC 19.12.130 and 19.12.140. From: Merry Ann Moore[mailto:merryannmoore@gmail.com] Sent: Wednesday, August 27, 2014 8:37 AM To: Tammy Baney; Tony DeBone; Alan Unger Cc: Nick Lelack; Peter Gutowsky; Planning Commission Subject: Comments on county code enforcement policy revisions Please consider my comments on the revision of the county code enforcement manual for today's hearing, and submit them for inclusion in the public record. Thank you, Merry Ann Moore Merry Ann Moore Moore Creative www.menyannmoore.com 541.549.2468 merryannmoore@Qmail. com Twitter @MerryAnnMoore Linkedln fitto://www.linkedin.com/in/merryannmoore/ August 27, 2014 Dear Board of County Commissioners, 1 urge the County to formalize its longstanding policy obliging property owners to comply with county code BEFORE they can get a new development permit on the land in question. The county often requires developers to comply with certain preconditions before they get a permit. The issue before you is, if the developer doesn't comply with these requirements, should the county look the other way when the developer asks to do something new with the property? Or should the county enforce these requirements, like retaining 65% open space in a cluster development in perpetuity or until the land is brought into an urban growth boundary? You now have a perfect example of this unfolding, the proposed Miller cluster development near Shevlin Park. The developers are proposing to preserve 75% of the land for the development as open space in perpetuity. These are very reputable businesspeople, but even so, what if, in ten or 20 years, the developer comes on hard times? And there is a great deal of pressure to develop additional lucrative housing on this land? Or the county decides that the open space is the most logical place to do infill development? Clearly, building on this open space would violate the county's cluster development restrictions, which requires the developer to hold at least 65% of that land as open space. But without an enforcement mechanism that's formalized as part of county code, there's little resort but the legal system to prevent future policymakers from allowing a reversal of the open space commitment. This is a very real scenario with a precedent. I also urge you to include a statement that a code complaint should run with the land. Even if the owner changes the name of the owning entity of the property, or the property is sold, a development that is in violation of county code must be brought into compliance before any new permits are issued. When the county does not enforce what is required when a new development is approved, you create conflict among neighbors, false property values, unfair advantages for developers who don't comply, and a cynical citizenry who is more strongly inclined to oppose projects for fear they won't turn out to be what we're told they'll be. It comes down to simple fairness and orderly rules for development: if something is required as a condition of development, then this requirement should be enforced. And compliance can be evaded unless this policy is put into the county code. It's important to note that your Planning Department's research shows that of 11 counties responding, eight have such a formal policy in code, one is undecided, one has a hybrid policy, and only one allows a new permit on property with a code violation so long as it's unrelated to the new request. Please add the language on restricting development permits on properties with pending code violations to the county code. Please model this language on Multnomah County, which includes the provision that this policy applies to any permit approvals previously issued by the county: Thank you for considering my views, Merry Ann Moore 69225 Hawksflight Dr. Sisters, OR 97759 John Griley From: BiflRodgers <bill©cascaderangeriders.org> Sent: Wednesday, September 03, 2014 3:17 PM To: Tony DeBone; Tony DeBone; John Griley Subject: Proposed changes to the Code Enforcement Procedures Manual for Deschutes County. Hi Tony, I'd like to follow up on our conversation of last Saturday. I'm concerned that Deschutes County is considering retaining language restricting issuance of development permits on properties with pending code violations in it's code enforcement procedures manual. Years ago I was involved in the code enforcement business as a building official in Virginia. I'm still peripherally involved with code administration in my current job as Construction Compliance Manager for a local architectural manufacturer. I'm also certified by the International Code Council as a residential building inspector and by the state of Oregon as a Oregon Certified Inspector. My concern with the retention and/or implementation of language that would Zink one project to another is two fold.: Fairness: Just because a property owner has been cited for a violation does not mean that he or she is guilty of that violation. Every citizen deserves their day in court. If the language were to be modified to the extent that it was clear that there would be no sanctions unless the County had charged the property owner with a violation and obtained a verdict of guilty by a local court, I would be Tess concerned. Even then, I would prefer that separate issues stayed separate. Liability: If Deschutes County were to implement such a rule the County might well be adjudged liable for damages if a property owner sued and could prove that the first violation was not valid and that the property owner had suffered a loss as a result of the denial or delay of the second permit. Thank you for taking the time to listen to my concerns. Sincerely Bill Rodgers 1407 NE 9th St. Bend. OR 97701 From: Nunzie [mailto:nunzie(pacifier.coml Sent: Thursday, August 28, 2014 12:19 PM To: Tammy Baney; Nick Lelack Subject: code enforcement policy/procedures manual Hello Commissioner Baney & Nick Lelack: At best the complainant assurance now in the draft code is only one listed on Page 10 VIII: The draft policy/manual provides for and allows complete sidestep action by the County of a complaint by any one of these means: lack of resources, staff and/or funding, too busy schedule, other prioritization, no political will, no specified timeline, poor attempt ... Furthermore: Land Use is given the least priority of the 4 cases... what does "shall attempt to investigate" mean?, The County shall investigate? or for whatever reasons the county's attempt to investigate actually precludes an actual investigation? "...some code violations may receive no attention at all" Page 7 VII. Initiation of code enforcement A.1. ..."To be investigated, a citizen complaint must contain all information required on the complaint form." The most telling use of the 85 'may' words is on the last page of the draft: I have learned that where the word may is used, to fully understanding the meaning of may, one must also assume that 'may not" could occur... May does not mean will or shall or must. i I think at the very Ieast: 1. the draft policy Mission must include risk management permits 2. the County must investigate each complaint. (Even if it arrives at decision that there is no violation.) 3. the county must keep in written contact with the complainant identifying the steps of it's investigation and/or action toward compliance 4. the Item I needs to remain in the manual: with some text revision page 19-20 item I: It is the County's policy... not to (issue permits or approvals) deem an application for a permit complete in the event the applicant, owner or land has a NOV pending in Deschutes County... continue with approvals, nor to renew ...etc the term development usually refers only to building: I think this section must specify land use, development/building, risk management, and environmental health : otherwise it could be interpreted to only apply to a building permit... this section must relate to the owner as well as to the land "uncorrected code violations" would appear there need to be plural code violations, this must apply even if there is only 1 code violation Using the word should is not the same as using the word must: The restriction must continue until such violation(s) is/are corrected. Since many events now are held in agricultural buildings or related to agritourism, I frankly don't see the need for ag building permit exceptions in item I 2. I understand the right to farm... but in the context of this manual: I don't think exempting ag from code enforcement is appropriate In addition: 5. The County must send written notice to the complainant either of there being no violation, or with the specific resolution. I think it is important to follow the Shepard case as an example of how far a land use violator is going... Having filed a code complaint before, I don't feel that folks file complaints frivolously: in my case violations began 2 years prior to my filing a complaint and I think this is referenced in your manual on page 6 I would venture to say that violations have occurred for several years prior to a complaint or in the case of land use: problematic issues arise thru sloppy code implementation... weddings/noise ordinance for instance, OMG versus commercial events etc Whilst I recognize that the policy/manual is framed for the benefit of the County, I find little assurance by this County draft for the complainant and especially for a land use type violation other than the stick. In the recent past, the state and county have expanded land uses in Deschutes County to include events, resorts, weddings, OMG, agritourism; Deschutes County is just beginning to see these become permitted... I think it is only fair to the public that the County investigate and cause compliance with it's own County Code. Thanks for your attention to and incorporation of these issues. my email is always open, Nunzie Gould 2 All complaints received reeived by Code Enfrcement ha be ecorded in CDD's computer system. Policy. County staff shall attempt to investigate and resolve all code violations within budget and staffing restraints. However, because of limited code enforcement resources, there may be times when all code violations cannot be given the same level of attention and some code violations may receive no attention at all. B. Notice of Resolution. The County may send written notice to the complainant complaint is resolved, describing the resolution. n the It is the County's policy, to the extent authorized by law, not to issue permits or approvals, nor to renew or extend permits and approvals, for development on any property on which there already exists uncorrected code violations. The restriction should continue until such violations are corrected. 5 The violation has existed uncorrecte t eriod; John Griley From: Nick Lelack Sent: Wednesday, September 03, 2014 2:42 PM To: John Griley Subject: Fwd: testimony re code violation handbook Attachments: 20140827 Pending Code Violations.pdf; ATT00001.htm Nick Lelack, AICP Deschutes County Community Development Director 541-639-5585 Sent from my iPhone Begin forwarded message: From: William Kuhn <william@riskfactor.com> Date: September 3, 2014 at 12:57:46 PM PDT To: Nick Lelack <Nick.Lelack@deschutes.org> Subject: testimony re code violation handbook Hi Nick, Please include the attached as part of the code violation handbook testimony. Thank you, Bill William Kuhn INVEST/O - Registered Investment Advisors PO Box 5996 Bend, OR 97708-5996 541 389 3676 William@RiskFactor.com "First, they ignore you, Then they laugh at you. Then they fight you. Then you win." Mahatma Gandhi ._. . pccept as proenvidt' s' t• '2(A), the County shalt itit Make a landttie decition-OPProVing development, includireg land divisions anti property line atiSstments, or issue a: building permit for arty property that isnot In fun compliance with all applicable provisions of the Multnomah -County Land Use Code and/or any permit approvals previously issued by the County. § 37 0560 Cod (Al A permit or other approval, including building permit applications, may be authorized if.: Multnomah Compliance And (1) It results in the prOpertycorning, into full compliance with all applicable provisions of the Multnomah County Code. This Applications , , ... includes sequeridng Of permits or -Other approvals as part. ego- voluntary tonipliante agreernerit; or (2) It isnecessary t� proted -public safety; or {alit is for work related to anti -within a valid easement over, on or under an affected property. C:1 0 0 Oa az tti ,, 74. 0 D V 0 *4 rz 0 1713 m orF rt 0' 11' 14 0 0 I err_ 14 5' 0 N/A MCC Section 17.110.680 SECTION IMO CorripliartOelledUired:: L Ne perstin shaltengage rn or cause tooccur a developireent whictredrieS net complywitlitheseregulatitens„'Neither the !Billiding ner• any other state or local official shall issue a permit fora tiseter the construction, reconstruction Or alteration Cif- a structure or a part of a structure whit* has net been approVed. A development.shall be approv.ed.by the Director or other AptirovingAuthorityaccorcilitg to the provisions.of this ordinance. The -Director she not approve a development or use Cif land that has been previously divided or otherwise developed in violation ohs Ordinance„ regardless.of whether the applicant:create the *lotion, tireless the violation can berectified as part of a developnient pnopotal 3. Unlessappealed, a delsion on any application shall be final tipoo eviratien of the periodprovided for filing an . appeal Or, if appealettr!tinoil:rentleringof the clectsidri-by the retileiiitittbridV: .006.proisio,tf-Ittionso tioi1444:a .pOsitiok that the ofabdgperriiit or land *Se:Omitthat wotild . otherwise- be ObWe.d-Shotild mit be Withheld if there is anunrelated Wilding:Code orland. Lite vitilatierrt tirt tha,nrilowaohy . "Na permit for the use of land or structures or for the alt,eration or construction•of any structure shall be issued and no land uSe approval shalt be granted if the land for which the permit or approval is sought is heireg used in violation of any condition of approval of any land use:action, is in violation of local, state rir federal Iaw or isbeing used or has been divided in -violation ' of the provisions.OfthisOrdinancemlietsissuance ofthe permit wouldtorrectthe . o.* n 0 -... "CI a O -- 0 3 n 0 a. R, 4 0 0. 0, rr 0' 74; O "4 O 2 n .0 at 13 !"I 0' 0 0 4 S,,„ 0 4 .0 m oft. o .t -hr 07, c: a QJ 5 '0 o u, , E 0. 0 0 n m • .4i ri PAo • ID 0. '7/ e . Section 70.00— Compliance & Enforcement A. Violations of the Hood River County2oning Ordinance will be Mitigated and governed by Chapter 1.08 (Code Enforcement} of the Hood River County Code. Section 70.10 — Compliance A. in addition to enforcement actions authorized by Chapter 1.08 of the Hood River County Code, applications for land use actions may be rejected prior to filing or at any point during the application prOcess if any of the following exist: L The subject property on which a land use action Is being applied for has a County enforcement action pending; or 2. The subject property on whith the land use action is being applied for is found to contain a land use violation while processing the application; or 3. The subject property on which the land use action is being applied for is found to be In violation of a condition of approval Hood River 70.10(A) front a land use decision that remains applicable to the property. Section 70.20 —Penalties A. Chapter 1.08 (Code Enforcement) of the Hood River County Code stipulates that violations of County ordinances are ranked in order of severity and severity of related penalties. The following constitute the severity levels for violations of land use ordinances: 1. Class i violations - Violations •which the Planning Director considers to be major violations that cause or have the potential to cause a danger to life (persons or animals) or property; that pose substantial and unacceptable impacts on nearby properties; situations which involve individuals disregarding •county ordinances; or situations that involve recurring violations ata single property or by the same individual or company. 2. Class II Violations — Violations that.do not pose an immediate clanger to life or property but which the Planning Director considers as major violations ofcounty ordinances that impact the quality of life of neighboring properties or other members ofthe community. (8) For the purposes of this section, Public Safety means the actions authorized by the permit would cause abatement of conditions found to exitt •on the property that endanger the life, health, personal property, or safety of the residents or public. Examples of that situation include but are not limited to issuance of pennits to replace faulty electrical wiring; repair or install furnace :eqUipment; roof repairs; replace or repair compromised utility infrastructure for water, sewer, fuel, or power; and actions necessary to stop earth slope failures. 5 c to 5. 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The Planning Director shall not issue a zoning permit for the improvement or use of lana) that has beenpreviously dividedin violation of dais: chapter or contains a land use or solid waste violation, regardless of whether the applicant created Umatilla 152.025 the violation, tintless the violation can be rectified as part. of the development. (C) A zoning permit application must be signed by all legal property owners of the subject lot or parcel, or by a legally authorized representative. i rd.`83.4„ passed.5-9=83 0rci.20 8-09, passed 6-16- 08; t rd.2009-09; passed 12-8-09;0rd.2012-02 passed 1-2£-12}§ Jerson County 0 m m 2 _rte Ci 902.4 Existing Violations on the Property Whenever a violation of federal, state or local law exists on the subject property, the County: shall either refuse to accept, or Eater may reject, or.deny any application for building or land use permits unless the property is brought into compliance with the law or the application will remedy the violation. The provisions of this Ordinance are severable. if any section, sentence, clause, or phrase of this Ordinance is adjudged to be invalid by a court of competent jurisdiction, that decision shall not affect The validity of the remaining portionof this Ordinance. The.' Director, the Director's ,designee or other Approving Authority shall not approve a developrnertt or useof land that has been previously divided or otherwise developedin violation of this Ordinance, regardless of whether the applicant created the violation, unless the violation can be rectified as part of the development proposal. approvals or rer:rewals or . extensions thereof, nor shall staff issue .permits or :approvals or renewals or extensions thereof: insteat4 staff shall promptly consult With the Compliance Officertodete'rnilne whether the permit Or approval, or the renewal or extension thereof; is being sought in order to correct the exist ng. code violation(s). If the requested permit or approval, or renewal or extension thereof, is determined to be required far :code compliance, the application shall be accepted, or the permit or approval shall be issued if all necessary Atriditions,bave been met. Planning Department: staff shall refer persons not allowed to apply for permits or approvals, or to whom.issuance of permits or approvals or renewals or :extensions thereof :has been denied under this subparagraph, to the Compliance Officer to discuss required corrective action. John Griley From: Bonnie Baker Sent: Friday, September 05, 2014 10:42 AM To: John Griley Subject: FW: FYI. For the file. From: Dicottes@aol.com [mailto:picottes@aol.com] Sent: Tuesday, September 02, 2014 1:49 AM To: Board Subject: August 31, 2014 County Commissioners, My concerns with the building department involve code enforcement and land use. People who are not in compliance with building department codes and rules should be informed so, given a reasonable amount of time to comply, and then be fined for each day they are not in compliance. People applying for permits should be in compliance of land use rules including CCR's. Upon applying for a permit, paperwork should include a CCR affidavit. Applicants not conforming to the rules should not be issued permits, or should have permits revoked. My version of an example of an affidavit is below: CCR AFFIDAVIT Check Boxes that apply: There are no CCR's that apply to this permit Work involved in this permit does not violate CCR's for this property. A variance has been granted for the work involved under this permit which does not comply with local CCR's. Documentation of variance by HOA is provided. 1 Signature: Date: Thank you for your consideration of these matters, Joe Picotte PO Box 571, La Pine, OR 97739-0571 (541-554-8705 2