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HomeMy WebLinkAboutFee Waiver Request - Brown - EFU MEMORANDUM DATE: October 4, 2010 TO: Board of County Commissioners FROM Tom Anderson, Director SUBJECT: Fee Waiver Request from Kelly Brown-Commercial Events on EFU ____________________________________________________________________________ Background: The issue of weddings and other commercial (for profit) events on land zoned Exclusive Farm Use (EFU) has been an ongoing debate for the past several years. The County has pursued a number of code enforcement cases on EFU properties during this time with the understanding that these types of events are not an outright permitted use under existing county code. The basis for this understanding is the Hearings Officer Decision on CU-91-59. Citations have been issued in several cases, and the Deschutes County circuit court has agreed with the interpretation of staff in issuing guilty verdicts with respect to these citations. It is ultimately unclear whether State land use law currently permits counties to allow this use on EFU land, although several counties have not been challenged in adopting local ordinances allowing commercial events in varying forms. In late spring, 2009, Country Gathering Associates (CGA) submitted a proposed text amendment (TA-08-9) to allow commercial events on EFU, and paid the required application fee ($4,510 per the FY 08-09 fee schedule). Kelly Brown was part of CGA and was the primary contact for the application. The proposal was heard by the Planning Commission at three different hearings, alternative amendments were added for consideration, and it was forwarded to the Board of Commissioners in summer, 09-10. There was extensive testimony from both those in support of the proposal as well as those opposed. However, just two days before the first public hearing of the Board on the proposal on July 15, 2010, the text amendment application was withdrawn by CGA. The Board chose not to continue it as a county-sponsored proposal after asking whether any other members of CGA were willing to become the applicant. Per the attached request, Kelly Brown (as an individual) has requested that a new text amendment be developed, using the 2009 CGA proposal as a staring point, and beginning a new deliberative process with first the Planning Commission and then the Board of Commissioners. No formal text amendment application was submitted along with the waiver request, nor was any new code language proposed, other than the reference to the draft ordinance withdrawn previously. Discussion Points: The following points are important for the Board to consider in weighing the waiver request: • The FY 10-11 Community Development Work Plan includes an item in the Planning Division to “Initiate amendments to address commercial use of farm land”. It is listed as a ‘priority’ item, meaning that while it is considered important, it would only be undertaken as time allows. Due to other critical priorities, it is unlikely that staff would have initiated the process until spring, 2011 at the earliest. • A “Uses on Farm Land Task Force” is currently working on a legislative concept for the 2011 Oregon legislative session. The Association of Oregon Counties (AOC) has proposed a framework/concept, which was generally well received by the task force. Another meeting is scheduled and a revised concept will be presented at the annual AOC meeting in November. It is presently unclear, however, whether the AOC framework/concept would address this issue in Deschutes County. • It is very likely that any proposal will be highly controversial, involving lengthy oral and written testimony. It is also likely that any decision will be appealed. • An adopted Deschutes County ordinance may serve as a model ordinance for statewide consideration. • Code Enforcement activity will continue as appropriate pending revisions to county code, although it will continue to be difficult at times to distinguish between for-profit and private events. • In August, 2010, Kelly Brown was found guilty of one code enforcement citation for an illegal commercial event. At the sentencing, her attorney (Dave Hunnicut) pleaded guilty on her behalf on three additional pending citations. He asked the court to either suspend or not impose a fine so that she could have funds available to pay land use application fees in an attempt to amend Deschutes County Code with respect to commercial events on EFU. The court imposed no fine on the citations to which the defendant pleaded guilty. On the citation that was tried, the court imposed a $500.00 fine. Requested Board Action: Provide direction to staff from the following possible actions: 1) Accept the fee waiver request, and: a. Direct staff to immediately begin work on a draft ordinance based on the withdrawn 2009 ordinance proposal. If this is the Board’s direction, staff seeks clarity on whether the process should be re-started with the previous proposal or a new proposal, and whether it should begin at the Planning Commission or Board. b. Require that the applicant develop draft proposed code language. It is assumed that any new proposal will begin with the Planning Commission’s review. 2) Same as 1), but require the applicant to contribute a portion of the application fees, based on the circuit court decision cited above where no fines were imposed at the request of the applicant so that funds would be available for land use fees. 3) Deny the fee waiver request, and: a. Require that the applicant pay the current fee, which under the FY 2010-11 fee schedule for a major text amendment is $10,000, in which case staff will begin the deliberative process immediately, based either on the 2009 ordinance or new proposed code language at the applicant’s discretion; b. Leave the item pertaining to commercial use of farmland in the FY 2010-11 work plan, with the understanding that Planning staff will take up this item only if time allows. Staff Recommendation: Although staff stresses that we are neutral with respect to expanded commercial activities on EFU-zoned land, we recommend alternative 3)b, due primarily to current workload demands of both staff and the Planning Commission. We propose however to remain directly involved in statewide discussions on this issue, and would bring back for public, Planning Commission and Board consideration proposed code amendments following the statewide process. In addition, the fee waiver request does not conform to the criteria contained in Ordinances 2006-001, 2006-002 and 2006-003, which call for either a demonstration of financial hardship, there is no immediate need for CDD's services to protect the public health and safety, and granting the waiver does not create any long-term efficiency in code enforcement.