HomeMy WebLinkAboutSDC Protest - Walker (2)Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of October 3, 2011
Please see directions for completing this document on the next page.
DATE: September 26, 2011
FROM: George Kolb, Interim Department Director Road 541-322-7113
TITLE OF AGENDA ITEM:
Continuation of a Public Hearing and deliberations concerning a protest of SDC charges assessed on a
property owned by Michael J. Walker, 3711 N.W. Povey Ave., Terrebonne, OR 97760
PUBLIC HEARING ON TIDS DATE? YES.
BACKGROUND AND POLICY IMPLICATIONS:
On August 31, 2011, a public hearing was held to consider a protest concerning SDC charges filed by
Mr. Michael Walker on a property located in Terrebonne. On June 22, 2011, Mr. Walker was advised
by the Deschutes County Community Development Department that SDC's in the amount of $3,405
were owed by Mr. Walker for a house that he relocated from one property to another property located
within Deschutes County. Mr. Walker felt that he should not have to pay the SDC's on this application
as the structure had been constructed inside of Deschutes County in the 1980's and therefore the trips
generated from the residence were already calculated into all the traffic studies conducted by Deschutes
County.
Per Resolution 2008-059, if an applicant does not agree with the SDC charge, he can request a review
of the charge by the Road Department Director, and the Director will deliver a decision in writing
within ten (10) working days of the request. The Road Department Director reviewed the information
provided by Mr. Walker and denied the request based on the following:
1. The basis for the request was that Mr. Walker was not increasing the number of peak hour trips
because he was moving a house from one lot to another within the County. In reading Resolution 2008
059, the Director felt this reasoning did not apply based on the wording in Section 4, Applicability, (A),
second sentence which states, "This shall include new construction and alteration, expansion or
replacement of a building or dwelling unit if such alteration, expansion or replacement results in an
increase in the number of peak hour trips generated compared to the present number of peak hour trips
generated by the development or the property on which the development is located." Prior to the
relocation of the house, this property was not generating any trips. Therefore the SDC's would apply.
2. The other issue concerning the request is that per Section 4, Applicability, subsection (5) of
Resolution 2008-059, the request was not submitted prior to the issuance of the building permit. This is
a requirement of the Resolution in order for the request to be considered valid.
The other concern the Director has is that, having moved the subject house, Mr. Walker could later
move to or build a second house on the lot from which the subject house was removed, and thus claim
an exemption from SDC charges based on the fact that the new house would be classified as a
replacement dwelling and therefore not be subject to SDC's per Section 4, Applicability, (A). Based on
the above reasoning, the Director rejected the request to drop the SDC requirement for the lot onto
which the house was relocated to.
Mr. Walker did not agree with the Department Director's decision, and is thereby requesting a hearing
before the Board of County Commissioners per Resolution 2008-059, Section 12, Appeals and Review
Hearings. See attached letters for correspondence between the County and Mr. Walker concerning the
SDC charges.
During the public hearing, questions were raised by the Board of County Commissioners concerning
the language of the SDC resolution and how it related to this situation. The Board decided to keep the
hearing open until September 26, 2011 to allow Staff to research the language in the resolution and
come to the Board during a work session prior to this hearing to help clarify the situation. A work
session was held on Wednesday, September 14,2011 and information presented at the session will be
discussed at this hearing (see attached staff report).
As a result of the applicant being unavailable for the hearing on September 26,2011, the hearing was
kept open until 10:00 a.m., October 3,2011.
FISCAL IMPLICATIONS:
If the request to drop the SDC requirement is approved by the Board of County Commissioners, the
SDC fund will not receive the amount of$3,405.
RECOMMENDATION & ACTION REQUESTED:
The Road Department recommends the Board of County Commissioners review the information and
testimony presented at the third hearing and determine if the request to drop the SDC charge is valid.
The Staff will prepare for later Board adoption an order encompassing the Board's announced decision.
ATTENDANCE: George Kolb, Interim Road Department Director, Peter Russell, Senior
Transportation Planner
DISTRIBUTION OF DOCUMENTS:
Copy to Sheila OdIe (ext. 7148) at the Road Department
Community Development Department
Planning Division Building Safety Division Environmental Sollll Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
TO: Deschutes County Board of County Commissioners
FROM: George Kolb. Road Department Interim Director
Peter Russell. Senior Transportation Planner
WORK
SESSION: Sept. 14.2011
HEARING: Held August 31, 2011, continued until Sept. 26, 2011
SUBJECT: Policies for implementing transportation system development charges
Background
The Board held a hearing on August 31, 2011, regarding a protest of transportation system
development charges (SOC's) applied to an existing single-family home. The structure was being
relocated from a lot just south of Redmond to a vacant lot in Terrebonne. Both lots are in rural
Deschutes County. The appellant asserts that due to the home's age and original location it was
already included in the traffic assumptions upon which the transportation SOC is based and thus
SDCs should not be applied. Staff cited language in Resolution 2008-059 that indicates an SOC is
triggered by land development and the parcel the home was being moved to was undeveloped.
The Board continued the SOC protest hearing until 1 0 a.m. Dn Sept. 26, 2011, after directing staff to
summarize the major policy implications of this appeal and the application of the SOC resolution in
general.
Major issues
• Are SOC's tied to the land or the structure?
SOC's are triggered by building permits. Building permits are not generic, but rather are issued for
particular activities on site specific locations. The premise is that these activities are expected to
result in increased traffic from the site. This argues SOC's are tied to the land and not the structure.
Resolution 2008-059, Section 3, Definitions, provides the following at 3(H): "'Development' shall
mean a building or other land construction, or making a physical change in the use of structure or
land ... • and 3(1) "'Development Permit' shall mean an official document or certificate, other than a
building permit, authorizing development."
Under Section 4, Applicability, at 4(A) describes how SOC's apply when there is an increase
" ... compared to the present number of peak hour trips generated by the development or the
property on which the development is located.·
Quality Services Performed lvith Pride
Deschutes County Title 18 contains the County's zoning ordinances and 18.04.020(A) details the
purpose of the code is " ... to establish zoning districts and regulations governing the development
and use of land within portions of Deschutes County, Oregon."
Based on the above, staff feels the clear intent is for SOC's to be based on the land and not the
structure. Development occurs at a specific place. While SOC's are tied to building permits, those
permits in turn are for a specific site. Issuance of building permit also provides a clear and objective
triggering event that the Community Development Department can use to assess the SOC.
1A. If SOC's are tied to structures, how will the SOC's be tracked?
If the Board decides SOC's are tied to structures, then staff will need to devise a system to
accomplish two tasks:
a) review the land use assumptions for both the donor and the receiving parcels at the time
the SOC was established in 2008;
b) document the movement of structures from the donating parcel to the receiving parcel
and note SOC's apply to the donating parcel immediately following the structure's
removal.
For task a), one option would consist of reviewing assessor's office records or GIS databases to
establish whether a structure was located on the applicable parcels in 2008. Even if the applicant
provided the information, staff typically reviews such information. In task b), staff can use the
comments section of the existing Land Use Tracking System (LUTS) database to record that the
donor parcel would be subject to SOC's.
Currently, the SOC amount includes a $45 administrative cost recovery fee. If the Board decides
SOC's are tied to structures, then staff recommends the administrative cost recovery fee be
reassessed as the fee does not include tasks described in a) and b).
• How long can a use be abandoned or extinguished before SOC's apply?
In the past. staff has approached this on a case-by-case basis. If the use had been abandoned 30
years ago. staff has applied SOC's. If the use had been abandoned for less than a year, then staff
has not applied SOC's. The gray area seems to be uses that were lawfully established prior to the
2008 implementation of the SOC, but then abandoned for two years or more.
Under County code for non-conforming uses at 18.120.010, the County sets a one-year timeframe
for abandonment or interruption of a non-conforming use or structure. This timeframe is based on
national case law.
Staff recommends a policy that abandonment of a use for more than one year results in requiring
any future establishment of a use requires payment of SOC's. A one-year time period would ensure
County consistency in dealing with abandoned or interrupted land uses.
• If the use was established illegally. then SOC's should apply
Infrequently. a land use process is initiated as a result of a code enforcement complaint. The
County's first option in code enforcement is voluntary compliance, which means the property owner
or his agent applies for the necessary building and/or land use permits.
2
Staff recommends these cases be dealt with as if this was a new use and SOC's apply, otherwise
the County runs the risk of people building illegal structures to avoid paying SOC's.
Summary of Staff Recommendations:
• SOC's are tied to the land, not the structure
• Abandonment of a use for more than one year means the re-establishment of a use requires
payment of SOC's
• Illegally established uses will be dealt with as a new use and SOC's apply
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Michael J. Walker
3711 N.W. Povey Ave.
Terrebonne, OR 9n60
(541) 923~3699
July 25, 2011
Deschutes County Road Department
Director George Corb
61150 S.E 27th Street
Bend, OR 9n02
Re: Review Request~ Transportation System Development Charge
Dear Mr. Colb,
As I discuss with you on July 19, 2011 enclosed please find my Review Request outlining my
objection to the Transportation System Development Charge (TSDC) being applied to this situation. I
would also request that payment of the TSDC be delayed until I have had an opportunity to
complete the Review/Appeal process, without penalty (TSDC due August 17, 2011).
TSDC Review Request
APPIJCANT: Michael J. Walker
3711 N. W. Povey Ave.
Terrebonne, OR 97760
(541) 923-3699
PROPERTY ADDRESS: 1092 Barberry Dr. Terrebonne, OR
14-13-1680308
DATE OF PERMIT: 10/27/10 #69838
NATURE OF DEVELOPMENT: Relocate stick built single family residence.
COMPLAINT: On June 22, 2011 Deschutes County Community Development advised me that
TSDC on the aforementioned permit were owed, and must be paid by August
17,2011.
Upon obtaining the permit I had reviewed Resolution 2008..QS9, and formed the
opinion that the TSOC would not apply to the relocation of a structure within
Deschutes County. I came to this conclusion based on the language found in Section
4 -APPLICABILITY, which focuses on development that increases the number of peak
hour trips.
The structure I moved was constructed on property Inside of Deschutes County in the
1980's, and therefore the trips generated from the residence have alreadv been
calculated into all traffic studies conducted by the county since that time. Adding
trips into peak hour trips again because the structure moved to a new location within
Deschutes County would be calculatingthe trips generateCffwice, and faIrs to provide
an accurate total of peak hour trips.
I am unable to find any traffic study methodology that allows for the calculation of
peak hour trips from a single structure twice. All methodology I find would indicate
that an increase in peak hour trips would be generated from the new development on
the vacated lot, and that the TSDC should apply to that development/permit.
Therefore I do not believe that the TSOC are applicable to a moved structure, just as
they would not be to a replacement structure. Neither is increasing the number of
peak hour trips to the county transportation system.
. ......... -~~ .
Road uel:lartment
61150 SE 27th St. • Bend, Oregon 97702
(541] 388-6581 • FAX (541) 388-2719
July 29,2011
Michael J. Walker
3711 N.W. Povey Ave.
Terrebonne, Or 97760
Re: SDC Review Request
Dear Mr. Walker;
I have received your Review Request dated July 25, 2011 concerning your
objection to the Transportation System Development Charge CTSDC) being applied to
the relocation of a stick built single family residence from one lot to another within
Deschutes County. The basis for the request is that you are not increasing the number
of peak hour trips because you are moving a house from one lot to another within the
County. In reading the Resolution 2008-059, I find that this reasoning does not apply
based on the following wording in Section 4. Applicability, (A), second sentence:
"This shall include new construction and alteration, expansion or replacement ofa
building or dwelling unit ifsuch alteration, expansion or replacement results in an
increase in the number ofpeak hour trips generated compared to the present number of
peak hour trips generated bv the development or the property on which the development
is located"
Since there was not a house previously located on this lot, the TSDC charge will apply.
The other issue concerning this request is that per Section 4, Applicability, Section (5)
of Resolution 2008-059, it was not submitted prior to the issuance of a building permit.
This is a requirement of the resolution in order for the request to be considered valid.
Based on the above information, I cannot accept your request to drop the SDC
requirement for relocation of the single family residence.
Quality Services Performed with Pride
Per Section 12, Appeals and Review Hearings of Resolution 2008-059, if you do not
agree with my decision, you can request a hearing before the Board of County
Commissioners. This hearing shall be requested by you within thirty (30) days of the
first receipt of this decision. Failure to request a hearing within the time provided shall
be deemed a waiver of such right.
3M
George Kolb, PE
Interim Road Department Director
Cc: Mark Pilliod, County Legal Counsel
Michael J. Walker
3711 N.W. Pavey Ave.
Terrebonne, OR 97760
August 14, 2011
Deschutes County Road Department U.S. Certified Mail # 7006 0810 0006 6308 1721
Director George Kolb
61150 S.E. 271t1 Street
Bend, OR 97702
Re: Resolution 2008-059/Request for Hearing before Board of Commissioners
Dear Mr. Kolb,
I have reviewed the decision in your letter dated July 29, 2011, and disagree with the findings .As
required by Resolution 2008-059 Section 12 (D), I request a hearing before the Deschutes County
Commissioners regarding the disputed Transportation System Development Charge.
Enclosed please find the Information requested in Section 12 (C). Although this information indicates
that the SDC charge has not been paid it should be noted that payment will be made prior to August
17,2011 in order to avoid the penalty charge.
Please note that I will be out of the area between September 8,2011 and September 19,2011.
Please do not schedule the hearing during this period.
!
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