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HomeMy WebLinkAbout2010-01-25 Business Meeting MinutesDeschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JANUARY 25, 2010 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Dennis R. Luke, Alan Unger and Tammy Baney. Also present were Dave Kanner, County Administrator; Laurie Craghead, Legal Counsel; Kevin Harrison, Peter Gutowsky, Will Groves and Nick Lelack, Community Development; Dan Despotopulos and Roxia Todoroff, Fair & Expo; David Givans, Internal Auditor; and five other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. The Board pointed out that the Fair & Expo was awarded Business of the Year by the Redmond Chamber of Commerce. Dan Despotopulos said that they will have the Annual Fair five days this year rather than four like last year. 2. Before the Board was Consideration of Signature of Document No. 2010- 057, an Oregon Department of Land Conservation & Development Technical Assistance Grant for a Regional Economic Opportunities Analysis. Peter Gutowsky stated that this grant does two things. It establishes the need for large lot industrial land in Central Oregon (including cities and the three counties); and identifying sites that qualify. The opportunity will then be available for cities to expand their urban growth boundary. Once land is included, complex requirements will be in place for no further zone change until another zone change process is followed. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 1 of 11 Pages Commissioner Luke asked if a straight measurement off Sisemore Road was used for any other property in the subdivision. Mr. Groves stated that it is unclear. For the purposes of the Kuhn’s property, they were concerned about the 400 foot distance and undertook a lot line adjustment to add more frontage on Sisemore Road. Staff is unclear as to whether this lot line adjustment voided the requirement on the map. Commissioner Luke stated that Code requires certain side yard measurements as well. Mr. Groves said that the hearings office spoke to this. Commissioner Luke stated that he thought it was a 40-foot side yard setback, instead of 100. In 2011, it was found that the setback must be no more than 40 feet, and not less than 25 feet. An appeal was made by the Dowells but later pulled. Laurie Craghead said the declaratory ruling indicated 40 feet. Mr. Groves said the record was extended to January 31, 2010 for a decision from the Board. Commissioner Luke said that “Groundhog Day” is one of his favorite movies. This situation has been around for a long time. The Homeowners’ agreement should have been required before the plat was in place. By having it upon the sale of property, the County does not usually track sales and the County relies on good faith. There is some responsibility on those who buy property as well, to make sure things are in place before they buy. There is no question it could have been done better. If it is found that the homeowners’ agreement had to be in place before any lots were sold, does this make both residences illegal? Ms. Craghead said yes. Commissioner Luke noted that building permits were issued and a lot line adjustment approved as well. The other question was whether there a survey in the record. Mr. Groves said there is, but nowhere in the record does one say whether the Dowell residence is a specific distance from the road. Based on materials in the record, it appears to him that it is beyond the 400 feet. If all homes were measured the same, one would be. However, there could be a measurement not done that would make this different. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 3 of 11 Pages Mr. Groves stated that the Hearings Officer found it is illegal because of the measurement. Commissioner Luke said that if the homeowner’s agreement is not in place, that makes both residences illegal. Ms. Craghead stated that the homeowners’ agreement may not make a difference because of the distance. Commissioner Luke said in general, if a home was in the wrong location but was moved, or if it was made smaller, would it still be legal. Mr. Craghead said that it would still be outside the 400 foot measurement. Mr. Groves said that to correct the code enforcement, one way is to remove the violation. Commissioner Unger stated that the measurement from the road is to keep the home off the winter deer range, and this requirement has been satisfied. Commissioner Luke said that it is the best interest of all to get the homeowners’ agreement issue fixed. He wondered if a mediator could meet with the parties to get this accomplished. Ms. Craghead said the record would have to be reopened to include this. Commissioner Unger asked about the deed restrictions and whether landscape requirements or the deer winter range protection apply. Mr. Groves stated that there are some requirements for fencing as well. The agreement would address the maintenance of the property, including brush maintenance and how taxes are being paid. Commissioner Unger asked about the tax situation and what happens if one party does not pay. Mr. Craghead stated that each is paying half. If not paid, the County would foreclose on the property Mr. Groves said that the first question is, is the County bound by the Circuit Court case. The County’s opinion is that it is not. The ruling was that a homeowners’ association agreement was to be in place. Commissioner Tammy asked about the LUBA case, which found there was not enough information. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 4 of 11 Pages Mr. Groves asked if the Dowell dwelling is lawful due to final building permit. A building permit by itself does not establish a lawful dwelling. Land is not surveyed to determine this. Chair Luke said that the measurement is key. Government has some responsibility in issuing a permit to make sure all the conditions were met. The County could have erred on both properties. Ms. Craghead stated that the County might have determined that the deed restrictions were enough. Mr. Groves said that prior to sale of any lot, the hearings Officer found that a homeowners’ agreement should be in place. Chair Luke said this is one County requirement that was not addressed, and this is no better than ignoring other conditions. Commissioner Baney said that there should have been a closer examination of the setback distance by the County. Ms. Craghead stated that a building permit does not allow for non compliance. Mr. Groves said that in the future this has to be more closely established. Mr. Groves referred to a matrix established by his department for options in this decision-making process. Commissioner Baney asked about the staff-generated composite figure (map). Mr. Groves said this encompasses available material. The two properties are outlined solidly. The eastern boundary is Sisemore Road as shown, but it is not known if it is exactly as it is. The homes are shown on the lots, as is the 400 foot plat lines. Commissioner Luke said this if the second house is measured using the criteria the County used for the first house, then it would be within the 400 feet. Ms. Craghead agreed. Commissioner Luke asked if an extension could be requested to make a decision. Ms. Craghead said that a decision of some kind needs to be done quickly, or a writ of mandamus could be filed at the court and the County would have to bear the burden of proof. Commissioner Unger said that he thought the Board was to add clarity to the decision. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 5 of 11 Pages Ms. Craghead asked if the County wants to allow time for the parties to mediate regarding the homeowners’ agreement. The record would have to be reopened if this is the case. This would still leave the setback issue unresolved unless the parties agree to drop that part. Commissioner Unger said that there are separate issues and they would both have to be resolved eventually. Commissioner Luke stated that based on the measurements of the one dwelling, both would be within the setback area. Commissioner Baney said that there appears to be a discrepancy on how things were measured. Mr. Groves said that the Forest Service did not have clear language when this was done and there were a variety of measurements. There is no clear answer in the record. The Hearings Officer said that reasonable people could come to different opinions. Ms. Craghead said that if there is mediation, it could be offered after a decision to put any LUBA appeal in abeyance. Commissioner Baney feels that it is unfortunate this moved forward like it did. Without the homeowners’ agreement in place, it will be hard to resolve. She is in favor of the mediation if the parties are willing. She feels both properties could be unlawful. Given the discrepancies on the measurements, she feels the Dowell property is lawful. Commissioner Unger agreed. If the parties were encouraged to mediate, would this include deed restrictions plus maintenance and taxes. Chair Luke said it is up to the property owners. Mr. Groves said there are requirements in current Code that are a basis for establishing homeowners’ associations and he would hope they would use them. The Chair called for a five-minute recess at this time. Ms. Craghead said that the record could be opened for a summary of her conversation with the parties at this time. BANEY: Move that the record be opened to allow this summary for potential mediation purposes. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 6 of 11 Pages VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Ms. Craighead indicated the Dowell’s representative indicated they would agree to mediation if the 400 foot issue is dropped, if the Kuhn’s will agree. The representative for the Kuhn’s said they want to be able to further litigate that 400 foot setback issue. It is a matter if the Board wants to pay for mediation knowing that there will be further litigation. Both parties feel skeptical whether mediation would be helpful, as it was tried before and did not work, but a lot more issues were discussed. Commissioner Baney said it would be for the homeowners’ agreement only, using current templates. They have signed on with deed restrictions with certain uses that should remain in place; so the maintenance component would need to be added. Chair Luke said that most Commissioners seem to feel that because of the precedence of measurements in the past, that the setbacks are okay. But the homeowners’ agreement would affect any house in the platted area. Therefore, no permit could be granted for any property, and a notation would be on the record as to future uses or changes. He agreed there is only one issue to go to mediation, and that is the homeowners’ agreement. He is willing to delay the decision to see if there is an agreement to mediate this. Commissioner Unger agreed, and said that the payment of taxes would need to be included. Dave Kanner said that the County pays Central Oregon Mediation as needed, at an agreed-upon rate. Commissioner Baney expressed that she would like to give as much direction as possible. Commissioner Luke stated that perhaps the County be a party to the mediation, to make sure that this falls within the County’s rules and regulations. Ms. Craghead said that Mr. Lovlien agreed that the 400 foot issue may still be litigated on appeal. He would leave the record open for 45 days to allow for the mediation. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 7 of 11 Pages Ms. Hardie, representing the Kuhns, said that she does not feel that this would be helpful. If the County is so inclined after the decision, it can be set up then. Commissioner Like said that if both parties are not wiling to cooperate, it is a waste of time. Chair Luke closed the record on the mediation. He suggested that the Hearings Officer’s decision on the 400 feet setback be overturned, due to precedence established earlier. He also agrees with Circuit Court that a homeowners’ agreement on a common area needs to be in place for a sale. Because it was not in place, any building permits issues for dwellings in this plat are unlawful. Commission Baney agreed. Commissioner Unger said that one party wants to move forward with a remodeling permit and one does not. It does not seem fair, as one could wait out the other. Commissioner Luke stated that neither party would be able to do anything. Commissioner Baney said that what makes sense is for the owners to cooperate. The most legally defensible thing is to do this. But the parties are not willing and will not be boxed into an agreement. Equity would be best but it has to be legally defensible. Commissioner Unger asked if it could be tied just to a sale. Commissioner Baney said the County erred at the time or could have done it better. Commissioner Luke feels there was not an error, but did not track things that well. Planning was in its early days at the time and there were no resources to track sales. Commissioner Baney retracted her opinion that they erred but feels that buyers need to be responsible. BANEY: Move that the Board find that the residence was established within the 400 foot setback as set by precedence at the time, but failed to have the homeowners’ agreement in place prior to sale that was required in regard to maintenance. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 8 of 11 Pages VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Chair Luke said there could be other homes in the County that were not lawfully established. He would like to discuss how this can be examined to make sure health and safety issues can be addressed regarding these types of situations. __________________________________________________________ Before the Board was Consideration of Approval of the Consent Agenda. Item #7, Minutes, were removed from the agenda as they have not yet been reviewed by the Board. UNGER: Move approval of the minutes, except for item #7. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Consent Agenda Items 4. Signature of Letters Appointing Steve Johnson (through February 28, 2011) and Derek Staab (through February 28, 2013) to the Deschutes River Mitigation and Enhancement Committee. Steve Johnson gave an overview of what the Committee does, how it is funded, and current projects. 5. Signature of a Letter Reappointing Charlie Jones to the Beaver Special Road District Board, through December 31, 2012 6. Signature of a Letter Appointing Ken Cooper to the Deschutes County Historic Landmarks Commission as an Ex-officio County Representative 7. Approval of Minutes: ƒ Business Meeting: January 20 ƒ Work Session: January 20 Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 9 of 11 Pages CONVENE AS THE GOVERNING BODY OF THE BLACK BUTTE RANCH COUNTY SERVICE DISTRICT 8. Before the Board was Discussion of an Amendment to a Memorandum of Understanding regarding the Operation of the Black Butte Ranch County Service District. BANEY: Move approval. UNGER: Second VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 9. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District in the Amount of $46,658.96. BANEY: Move approval, subject to review. UNGER: Second VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4- H COUNTY SERVICE DISTRICT 10. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $2,162.86. BANEY: Move approval. UNGER: Second VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, January 25, 2010 Page 10 of 11 Pages