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HomeMy WebLinkAbout2010-07-07 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 WEDNESDAY, JULY 7, 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, County Counsel; Paul Blikstad, George Read, Peter Gutowsky and Cynthia Smidt, Community Development; Sherri Pinner, Health Services; Joe Sadony, Information Technology; media representative Hillary Borrud of The Bulletin; and six other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. Commissioner Baney said that she won Best of Show and Judges’ Overall Favorite at the La Pine Parade and Lawnmower Race, and is now the proud owner of a pink riding lawnmower. 2. Before the Board was Consideration of Chair Signature of Document No. 2010-404, a Notice of Intent to Award a Contract for a Behavioral Health Information Management and Electronic Records System. Sherri Pinner gave a brief overview of the item. The process has taken over two years, and included an RFP and site visits. Commissioner Unger asked if the system talks to each other. Ms. Pinner indicated this is called an exchange, and they are working towards that with other health providers. BANEY: Move Chair signature. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 1 of 14 Pages VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 3. Before the Board was a Public Hearing and Consideration of First and Second Reading by Title Only and Adoption of Ordinance No. 2010-022, Amending the Deschutes County Code Chapter 18.216 to Comply with New State Statute Provisions, Amending DCC 18.128.360, to Revive Guest Ranch Provisions, and Adding to DCC 18.04.030 a Definition of Current Employment of Land for Farm Use, and Declaring an Emergency. Chair Luke opened the hearing, and Paul Blikstad read the opening statement. In regard to personal interest, the Commissioners had none to declare. There were no challenges from the public. There has been a work session on this issue with staff. Mr. Blikstad said that there have been legislative bills that made changes to EFU uses. High value farm land has been redefined, and the provision for guest ranches in the EFU has temporary been reinstated, through 2011. Commissioner Unger said that high value crop land has been used for destination resorts, which is different than high value farm land. Mr. Blikstad indicated that land within an irrigation district is considered high value farm land regardless of the type of soil. Therefore, he feels that there will not be any more golf courses placed within an irrigation district. The County needs to change its Code to comply with the new definitions passed by the State, in part because of Measure 49. This is being done by emergency since the County is required to comply with State law now and not ninety days from now. And this will allow those interested in guest ranches to proceed since they have a limited amount of time available to them. This is the fourth extension of the guest ranch provision. Laurie Craghead said that the Ordinances still need some review and it would be best to delay adoption until the July 19 Board business meeting. No public testimony was offered. The hearing was continued until the July 19, 2010 business meeting.. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 2 of 14 Pages 4. Before the Board was a Public Hearing (continued) on File No. CU-10-2, regarding the Hearings Officer’s Denial of a Conditional Use Permit to Establish a Room and Board Arrangement in the Exclusive Farm Use Zone. Cynthia Smidt briefed the Commissioners on the item. At question is the definition of room and board, and whether that is what the applicant is seeking. County Code and the State do not define room and board. Staff will seek information from Code and the State, and then will go to the dictionary to seek a definition. The applicant provided information on the various ways to look at room and board. Commissioner Luke stated that taking a definition out of a dictionary is hard for him to do. Legislation does not always follow the usual definition, but it is a place to start. He feels that the applicant went forward with a bed and breakfast application on the advice of staff, and a decision needs to be made as to whether this was really a room and board application. Ms. Smidt agreed. Ms. Craghead stated that she has not found ay case law defining room and board. There has only been one case in a different county of bed and breakfast as a home occupation, and it was allowed. Ms. Smidt indicated that the Hearings Officer looked at it as a bed and breakfast, and felt that it was a different use from room and board. Commissioner Baney said that the matrix and other information have been reviewed. She feels that this is more of a guest ranch than room and board or a bed and breakfast. Commissioner Luke stated that a guest ranch has acreage requirements. Ms. Smidt said that she sees room and board that could encompass some of the same amenities and uses. It is not solely bed and breakfast or a guest ranch. Room and board is much broader. Commissioner Unger said that room and board used to be something found in cities. The challenge is what this might open the floodgates to. Commissioner Luke stated that he would like to define both terms, but not in this case. There could be unintended consequences and he would like to see more public input. In this instance, he feels that this is room and board, with unlimited meals, and with a stay of thirty days or more. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 3 of 14 Pages Commissioner Baney said that they are seeking to use four rooms. In her opinion, she feels that this fits the guest ranch definition except for the acreage requirement. She is concerned that establishing this as room and board ends up being just another kind of guest ranch. Bed and breakfast is not allowed in an EFU zone. Ms. Craghead stated that the Board can be more restrictive than State law, and statute says that if it was deliberately deleted it cannot be used; although the applicant feels that it was deleted to allow for the definition to be even broader. The applicant, Mr. Anderson, stated they spent a lot of time trying to define room and board arrangements. This cannot be found in the State’s legislative history. A guest ranch is a more intense use. The biggest difference between bed and breakfast and room and board is that bed and breakfast is more commercial. The room and board arrangement means that the property has to be owner occupied. The visitors are okay in the house and the owner would live there. The visitors would be free to participate in a variety of uses. They would not be providing horses, but people can bring their own and take part in clinics or learn more about horse care. The argument is whether the use is commercial. Yamhill County is trying to promote tourism in conjunction with EFU zones, and is widening the uses allowed. At this time, there are few places available where people can bring their own horses and be involved in these kinds of activities. Also, this is an existing residence and they are not building additional structures. They are making what they already have, their home and other buildings, available. Commissioner Luke said that the uses of EFU have been narrowed recently by the State. What the applicant wants to do is commendable, but does set precedence regarding the use of EFU ground. The guest ranch legislation was passed because ranchers were having a hard time getting by. This helped the ranchers keep their large land holdings. They are supposed to be actively run ranches, with the visitors supplementing the income. He said this is more complicated than just this application. Commissioner Baney asked about the clinics. Mr. Anderson stated that this is an opportunity for people to be involved and become more educated about their horses. Commissioner Baney asked if there would be compensation for any of the activities. Mr. Anderson stated that if they board horses or if the people stay, there would be some compensation. He is just trying to break even on his EFU ground, which is not in tax deferral. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 4 of 14 Pages Commissioner Baney stated that if there is compensation involved, that is a commercial activity. Mr. Anderson stated that commercial activity is allowed on EFU property. Horse boarding and similar uses are allowed outright, but it is hard to make a living with EFU land. The portion that seems to be a concern is what they do in the residence. The Hearings Officer felt all requirements were met except for the definition of whether it is bed and breakfast or room and board. Ms. Smidt said that bed and breakfast needs to be owner occupied, and room and board does not, per Code. Bed and breakfast was removed from the EFU zone in 2009, but is allowed in MUA zones. Commissioner Unger asked Commissioner Baney if the AOC has addressed this issue. Commissioner Baney said the biggest challenge is allowing people to make a living on their EFU land. This is just the beginning of a long conversation on the issue. She feels that this particular property would not have a huge impact, but it could set precedence for others. Commissioner Luke said that zoning works two ways: the owner knows what to expect and so do the neighbors. Forty acres is not a feasible commercial farm in this area. Probably not all land zoned EFU should be within that zone. The problem is the lack of a definition. He believes that room and board should be thirty days or more. Ms. Craghead said that the Board has to define room and board to make a decision of any kind on this application. At a later time, a definition that is different can be addressed. Commissioner Luke said that he feels room and board is more than thirty days, more than one meal can be served, and it would be owner occupied. Ms. Craghead stated that equestrian training and clinics are already allowed. The difference is letting the guests stay overnight. This is a conditional use, and the County can be more restrictive than State law. Commissioner Luke said that up to five non-related people can live in a house. He asked why an application is needed for this purpose. Homes in EFU can have up to five unrelated people living in them. Ms. Craghead said that this needs a conditional use permit if they are charged. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 5 of 14 Pages Commissioner Baney stated that there is a difference between renting a room and renting overnight accommodations. Ms. Smidt disagrees with the fact that even if they were staying less than thirty days, they are not a bed and breakfast if they serve more than one meal a day. Bed and breakfast is almost like a specialized version of room and board. Room and board does not limit the number of days or meals. Commissioner Unger would like to see all landowners be successful, with protection of the area and the neighbors. He was curious about expanded uses within the EFU zone. Commissioner Baney said that if there are three basic uses: bed and breakfast, room and board and guest ranch. A guest ranch needs 160 acres, with up to ten rooms, with no specification on length of stay or the number of meals. Bed and breakfast is more defined. She feels room and board is up to four rooms, the number of meals could be anything, and it would be owner occupied. The maximum number of days is not specific. This would compliment the other activities that are already allowed. Ms. Craghead asked that if they wanted to use just three rooms and one meal, would that be allowed. Commissioner Baney said that this would be allowed ‘up to’ a certain amount. It would allow for overnight accommodations as well as a ranch hand who might stay much longer. Ms. Craghead said by setting maximums and no minimums, it is not as clear. Mr. Anderson stated that bed and breakfast has to be an allowed use. There are allowances for small scale operations. Anyone could say they are only going to provide one meal, but that could be breakfast or dinner. The main focus is not the living arrangements, but the other activities. Commissioner Unger would like to continue the hearing to consider the ‘what ifs’. He is concerned about the potential ramifications with other properties. Ms. Smidt said that the clock runs out on July 24. The Board has the option to confirm the Hearings Officer’s decision, or define the issue. Commissioner Baney said that it is not the applicant’s fault that the County does not have a definition in place. How do they not meet it if it is not defined? Matt Cyrus spoke for the Deschutes County Farm Bureau. He is not familiar with the details of this issue, but wanted to encourage additional opportunities for farmers to supplement their income, as long as the use is ancillary in nature and does not impact the use of the farm. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 6 of 14 Pages This fits in completely with the national trend of agri-tourism. This exact thing is being promoted on a national level, as it helps to allow people to remain on their farms. On behalf of the Farm Bureau, he encouraged the Commissioners to find a way to accommodate this request. Commissioner Unger feels that the smaller resorts are being encouraged as well. Ms. Craghead stated that the Board could include this under bed and breakfast. Commissioner Baney said that the definition of room and board could include bed and breakfast. In her opinion, it is like a graduated bed and breakfast. Commissioner Unger stated that he would deny if the clock is not tolled because it needs more clarification before he will be comfortable enough to make a decision. Commissioner Luke said that bed and breakfast was taken out of EFU ground for a reason that is not clear. He cannot support this unless bed and breakfast is not included. Stays would have to be for thirty days or more. Commissioner Baney said that it appears that it would need minimums and maximums. She could keep bed and breakfast out of room and board, with a minimum of three and a maximum of four rooms. Ms. Smidt said it could be for up to four. Commissioner Luke said that the intent needs to be for thirty days’ stay. Otherwise, it is a bed and breakfast. Ms. Smidt says thirty days’ stay is not mentioned anywhere in statute. Commissioners Luke and Baney agreed that any meals could be served and it would need to be owner occupied. They would allow the applicant to come back after the definitions are better and reapply without paying a fee. Commissioner Unger does not want the County to box itself in with a specific definition without more thought. Ms. Craghead stated that a process could be done to clarify the entire issue. Mr. Anderson said that his original application was for room and board for five unrelated people. The County said they could not accept this and had him go under bed and breakfast. He was agreeable to what was allowed under State law. He has paid over $5,000 to get to this point. It is not fair to take this to another level. The thirty days was not in the original definition. Ms. Craghead said there is no set stay under State law; just five unrelated persons. Because room and board is so broad, the specifics of bed and breakfast can be excluded. He would have to meet what the State includes. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 7 of 14 Pages Commissioner Unger asked how the room and board could have been approved if there is no definition. Ms. Smidt stated that there is a strong chance that the room and board application might have been approved if he had not be instructed to apply under bed and breakfast. Mr. Anderson stated that the room and board arrangement was to allow for some flexibility. Otherwise, the people could not go out and fish, hunt or whatever else on EFU properties. Even room and board arrangements have never been defined at having to be thirty days. It could have been a day, a week or longer. This seems unreasonable. They want to be able to have a ranch hand stay for a season but also be able to bring people onto the property for horse related, short-term activities. They only went under bed and breakfast because staff said they had to. The State allowed for different arrangements. Ms. Craghead said that wineries are allowed to have events now, and hunting and fishing preserves are another use allowed as a conditional use on EFU ground. Commissioner Baney said that on page 6 or 16 of the decision, the Hearings Officer felt that room and board focused on longer range stays. Commissioner Luke stated that he does not feel this type of use is a problem, but he wants to see the stays for thirty days or more. Commissioner Unger is not comfortable deciding on a definition of room and board at this time. Commissioner Baney feels that the number of days should be more flexible. Thirty days may not work for most people, not even a ranch hand who might stay for just a week or two. Historically room and board has not been just thirty days. This would be more of a hybrid. And the activities detailed are already allowed on the property. Ms. Smidt said that Commissioner Unger did agree with some of the definitions and the thirty day minimum; also, the maximum number of persons, up to five unrelated; one to four rooms; owner occupied property; and any number of meals. The duration is the issue. The applicant could come back to ask for a text amendment allowing for a shorter stay. Ms. Craghead stated that room and board is broadly defined, and bed and breakfast is not included until the issue is clarified. Any decision made today can be changed in the future by a different Board. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 8 of 14 Pages Dave Kanner stated that the Board could approve as a room and board using a thirty day minimum, adopting the Hearings Officer’s findings except for A and F, and adopt a text amendment to allow for an application for a stay of less than thirty days in the future. Mr. Anderson could reapply for this at some point, and needs to understand it is possible it might not be approved by a future Board. Commissioner Unger wants to have definitions, but using thirty days makes it less commercial and may be a good start. Commissioner Baney asked if it could be sent back to the Hearings Officer as room and board. The hearing was closed at this time. BANEY: Move approval with the condition of requiring no more than five unrelated persons, a maximum number of rooms of four, any number of meals be allowed, and that any number of days be allowed. The motion died for lack of a second. Commissioner Luke pointed out that it is clear that this is an issue that the Commissioners want to address more fully. LUKE: Move approval specifying up to five unrelated persons, a maximum number of rooms at four, no limit on the number of meals, and a thirty day minimum stay, including the conditions as stated by the Hearings Officer with the exception of A and F. UNGER: Second. VOTE: BANEY: No. (Split vote.) UNGER: Yes. LUKE: Chair votes yes. 5. Before the Board were Deliberations on Ordinances No. 2010-024 and 2010-025, relating to Destination Resort Map Amendment Procedures, Goals and Policies (continued from June 30). Peter Gutowsky gave an overview of the status of the item. There has been some testimony submitted since the last meeting, which is now a part of the record. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 9 of 14 Pages Commissioner Baney asked if she had property that was already mapped and she wanted to remain mapped, and had deed restrictions and other documents that might allow the property to remain mapped, would that work. Commissioner Luke said that the property owners were to ask to remain mapped at the time of purchase, but some of the properties now have other owners. Ms. Craghead said there is a Code provision that allows for the property owner or someone with authorization to do so, and the application would probably be allowed. It is the same thing that happens when there is an easement or a lease if it allows certain things to be authorized. Someone can challenge the validity, and past practice has been to leave the defense to the applicant. The County has to provide the LUBA record. Mr. Gutowsky stated that from a Planning perspective, in a general sense the Board needs to determine if a cluster development should remain eligible through whatever means. By deciding this, the CCR provision should be set aside because it is litigious. Eligibility would be based on the physical characteristics and not whether the property owners agree. Ms. Craghead said this would leave them on the map if they meet eligibility requirements. Commissioner Luke stated that cluster developments are different because they have 50% open space and other things that make them different than traditional subdivisions. Ms. Craghead said that if the Board does not want cluster developments included, language would have to be removed. Commissioner Baney noted that a cluster development is a clearly defined land use action. She wants to get to the open playing field, and the deed language does appear to allow for it to be included in remapping. She does not feel that every cluster development should remain on the map, but clarity is needed if there are deed restrictions. Mr. Gutowsky stated that there is one area south of Sunriver which could fit, but there are probably fewer than five overall. Commissioner Luke noted that this would not make the map more unwieldy. He does not see a problem leaving cluster developments on the map. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 10 of 14 Pages Commissioner Unger asked about platted subdivisions. He was advised that most would not fit the criteria. Commissioner Luke said that this would not help to reduce the map. Commissioner Baney asked what the difference is other than open space. Ms. Craghead indicated that the deed restrictions should not be a part of the process. She recommends either include cluster developments platted before 1990 with 50% open space automatically stay on, or all cluster developments stay off. Commissioner Baney said she cannot deny someone who has documentation that might allow this. The County should not be in a position to have to recognize it. Mr. Gutowsky stated that the application could be accepted and go to the Planning Commission that could make a policy decision regarding the deed restrictions. There is a concern of precedence and a risk of litigation in either case. The County does not enforce deed restrictions or CCR’s. Commissioner Baney indicated that she has only heard positive comments from those who would be affected by the deed restrictions, to remain mapped. The opposition does not seem to be those who are directly affected by the deed restrictions but those with another agenda. She wants this to be played out. Mr. Gutowsky gave an overview of what the possible language might be. Commissioner Baney stated that she is trying her best to not make this about one particular piece of property as this is a Countywide issue. Commissioner Luke stated there could be several more. Mr. Gutowsky said that Crosswater is mapped but he does not know about Vandevert. This aspect has been evaluated before, but he would have to research the issue to have a complete list. Likely there are just a handful. Commissioner Unger would like to see platted subdivisions included. Mr. Gutowsky said that this could add 20,000 to 40,000 acres. Commissioner Baney would like to let people remain on the map and apply so that it is clearer. Commissioner Unger would like to see the existing resorts be more successful and not negatively be impacted. UNGER: Move that the language regarding cluster developments be adjusted, as follows. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 11 of 14 Pages Add the following eligibility criterion to Ordinance 2010-024, Exhibit A, DCC 23.84.030(3d)(6): "All property within a subdivision for which cluster development approval was obtained prior to 1990, for which the original cluster development approval designated at least 50 percent of the development as open space and which was within the destination resort zone prior to the effective date of Ordinance 2010-024 shall remain on the eligibility map." Remove the following language from Ordinance 2010-025, Exhibit A, DCC 22.23.010(D) "All lots in a previously platted and developed subdivision shall be eligible to remain on the eligibility map in the same manner as DCC 22.23.010(C). 1. Each lot in the subdivision must contain a deed restriction or Covenant, Condition and Restriction that authorizes the original developer of that subdivision, or its successors in interest, to apply for conversion of the subdivision to a destination resort; 2. The original developer of that subdivision, or its successors in interest, may apply on behalf of all of the individual lot owners to remain on the eligibility map." LUKE: Second. VOTE: BANEY: No. (Split vote.) UNGER: Yes. LUKE: Chair votes yes. The final decision document will be presented for consideration at the July 14, 2010 business meeting. 6. Before the Board was Consideration of Signature of Order No. 2010-040, Denying a Protest of an Award of a Proposed Biomass Contract. UNGER: Move approval. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 12 of 14 Pages Before the Board was Consideration of Approval of the Consent Agenda. UNGER: Move approval. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Consent Agenda Items: 7. Approval of Minutes: ƒ June 30 Work Session ƒ June 28 Business Meeting CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 8. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District in the Amount of $140,156.01. UNGER: Move approval, subject to review. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 9. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $985.10. UNGER: Move approval, subject to review. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, July 7, 2010 Page 13 of 14 Pages