HomeMy WebLinkAboutOrder 016 - Subdivision - Kennel PropertyDeschutes County Board of Commissioner
1300 NW Wall St., Suite 200, Bend, OR 97701 -196( r
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of March 16, 2009
Please see directions for completing this document on the next page.
DATE: March 6, 2008
FROM: Chris Bedsaul, Associate Planner. CDD 383 -6719
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Order 2009 -016 denying review of the Hearings Officer's decision
in File No's. MA- 07- 5/TP06 -983 for a 7 lot subdivision proposal by Delmar and Deloris Kennel.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
The Kennels applied for a tentative plat approval for a seven lot subdivision in the Exclusive Fai m Use
- Alfalfa (EFUAL) zone following approval of a measure 37 waiver. The Hearings Officer denie d the
request to create the seven new lots eligible for single - family dwellings due to failure of the applicant to
demonstrate that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law
pertaining to the siting of dwellings on EFU land.
The applicant agreed to waive the 150 -day decision clock in the appeal of the Hearings Officer's denial
of File No's. MA- 07- 5/TP06 -983 for a 7 lot subdivision proposal. On March 12, 2008, the Boat 3
deliberated and approved a one (1) year extension of a Board decision on whether or not to hear an
appeal submitted by Delmar and Deloris Kennel. The applicant's request for the one (1) year tension
time to delay the Board's decision for the appeal has expired.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Staff recommends that the Board sign Order 2009 -016.
ATTENDANCE: Chris Bedsaul.
DISTRIBUTION OF DOCUMENTS:
Copy of the Order to Chris Bedsaul ASAP.
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings Officer's
Decision in File no. MA- 07- 5 /TP -06 -983 (A- 07 -16) * ORDER NO. 2009-016
*
WHEREAS, Applicants Delmar and Deloris Kennel appealed the Deschutes County Hearings Officer's
decision on application number MA- 07- 5/TP -06 -983; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the applicants provided written consent, in a letter dated October 30, 2007, to waive th,
150 -day clock and requested a 90 -day extension, in a letter dated December 19, 2007, of the Board's review
until March 3, 2008; and
WHEREAS, the applicants requested, in a letter dated March 10, 2008, for a second delay of the
decision on whether or not to hear the appeal and the Board approved a delay of one (1) year, from March 12,
2008 to March 11, 2009; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board, hereby, denies review of the applicant's appeal for Case Number MA-07-5/TP-
06-983 (A- 07 -16) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the
County land use ordinances.
Section 2. The 150 -day clock has been waived and the extension period of one (1) year for the decision
has expired.
Dated this of , 2009 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
TAMMY BANEY, CHAIR
DENNIS R. LUKE, VICE CHAIR
Recording Secretary ALAN UNGER, COMMISSIONER
PAGE 1 OF 1 - ORDER NO. 2009-016
Community Development Department
March 12, 2008
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701 -1925
(541)388 -6575 FAX (541)385 -1764
http://www.co.deschutes.or.ustcdd/
MEMORANDUM
To: Deschutes Board of County Commissioners
From: Chris Bedsaul, Associate Planner
Subject Appeal of Hearings Officer Denial of a 7 -lot subdivision for Kennel, MA07-
5/TP06 -983
BACKGROUND
The applicant is proposing to create a 7 -lot subdivision within 35.15 acres following
Deschutes County Measure 37 Claim approval of Waiver Order No. 2005 -110 and State of
Oregon Measure 37 Claim approval of Waiver No. M11874. A public hearing was
conducted by the Hearings Officer for the proposed subdivision on July 17, 2007. The
Hearings Officer's decision, dated October 16, 2007, denied the request to create the seven
(7) new lots eligible for single - family dwellings due to failure of the applicant to demonstrate
that the proposed subdivision satisfies ORS 215.263 (1973 ed.) or statutes and case law
pertaining to the siting of dwellings on EFU land.
In summary, the Hearings Officer found that the proposed subdivision did not comply with
statutory provisions mandating the preservation of agricultural land and that the dwelling
proposed on the lots were not "customarily provided in conjunction with farm use." The
applicant's original burden of proof did not contain an analysis of land use patterns in the
area required by ORS 215.263.
The applicant's appeal has requested the opportunity to supplement the staff analysis to
address ORS 215.263. The applicant's appeal also asserts a significant policy issue for the
Board regarding Measure 37 subdivisions that are submitted after the adoption of Senate
Bill 100, but before the adoption of the Exclusive Farm Use Zones and Comprehensive Plan
and Zoning acknowledgement by LCDC. The applicant did not cite any specific policy
issues. The applicant filed a timely appeal on October 30, 2007. The applicant has waived
the 150 -day decision period in the notice of appeal dated October 30, 2007. The applicant's
attorney, in a letter dated December 19, 2007, requested a 90 -day extension for a final
decision by the Board regarding the appeal, in order for the applicant to review and consider
Measure 49 impacts on the subdivision application.
Quality Services Performed with Pride
On March 10, 2008, the applicant's attorney submitted a letter requesting that the Board
grant a second delay of the appeal decision. The Board deliberated on the applicant's
request and approved Order No. 2008 -022 for an appeal decision delay of one (1) year,
from March 12, 2008 to March 11, 2009. The applicant's request for the extension time to
delay the Board's decision for the appeal has expired.
Except as set forth in DCC 22.28.030, when there is an appeal of a land use action and the
Board of County Commissioners is the Hearings Body:
A. The Board may on a case -by -case basis or by standing order for a class of cases decide
at a public meeting that the decision of the lower Hearings Body of an individual land use
action or a class of land use action decisions shall be the final decision of the County.
B. If the Board of County Commissioners decides that the lower Hearings Body decision shall
be the final decision of the County, then the Board shall not hear the appeal and the party
appealing may continue the appeal as provided by law. In such a case, the County shall
provide written notice of its decision to all parties. The decision on the land use application
becomes final upon mailing of the Board's decision to decline review.
C. The decision of the Board of County Commissioners not to hear a land use action appeal
is entirely discretionary.
D. In determining whether to hear an appeal, the Board of County Commissioners may
consider only:
1. The record developed before the lower Hearings Body;
2. The notice of appeal; and
3. Recommendations of staff.
RECOMMENDATION
Deschutes County Hearings Officers have determined in multiple "Declaratory Ruling"
decisions regarding Measure 37 claims, that when an applicant has received decisions on
Measure 37 waivers from DLCD and the BOCC, the Measure 37 claims have no legal effect,
except to the extent, if any, that the applicant has a validated common law vested right to
proceed. The applicant has not requested or received a "Declaratory Ruling" to determine a
lawful common law vested right, therefore, staff recommends the Board deny the appeal.
BRYA N' h,
I OVL.ILN �t
JARVIS, PC
:1T: )l LA
u,r:.t :
Neil R. Bryant
Robert S. Lovlien
Lynn F. Jarvis
. John A. Berge
Sharon R. Smith
John D. Sortie
Mark G. Reinecke
Melissa P. Lande
Kitri C. Ford
Paull. Taylor
Christopher A. Bagley .
Kyle D. Wuepper
Jeremy M. Green
Kelly L. Schukart
Helen L. Eastwood
BEND
591 S.W. Mill View Way
Mail: P.O. Box 880
Bend, Oregon 97709
Phone (541)382-4331
Fax: (541)389-3386
www tu.IIawYEas.cOM
October 30, 2007
HAND DELIVERED
DESCHUTES COUNTY COMMUNITY
DEVELOPMENT DEPT.
ATTN: CHRIS BEDSAUL
117 NW LAFAYETTE AVE.
BEND, OR 97701
Re: Applicant:
File No.:
Request:
Dear Chris:
Delmar and Dolores Kennel
MA07- 5/TP06 -983
Notice of Appeal
Enclosed is an original and three copies of our Notice of Appeal of Land Use
Application No. MA05- 5/TP06 -983. Also enclosed is our check in the amount
of $2,269.00 as payment of the filing fee. Please advise as to when this matter
will be set for hearing before the Commissioners. .
Please call me if you have any questions.
Very truly yours,
401,1/4# A 4v%.
ROBERT S. LOVLIEN
RSL /alk
Enclosures
cc: Mr. and Mrs. Del Kennel (w/ enclosures)
3008-005 100.doc
SCANNED
OCT 3 0 2007'w
Community Development Department
Planning Division
117 NW Lafayette Avenue;. Bend, OR 87701.1925
(541) 388.6575 -Fax (541) 385.1764
ittp://www.deschutes.org/cdd
APPEAL APPLICATION
FEE: $2,269.00
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement descrlbing the specific reasons for the appeal.
2. -If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
It is the responsibility of the Appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County
Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete
all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Appellant's Name (print): Delmar & Dolores Kennel Phone: ( 54 389 -5733
City /State/Zp: Bend, OR 97701
Mailing Address: 61405 K —Barr Rd.
Land Use Application Being Appealed: MO 5— 5 T P 0 6 - 9 8 3
Property Description: Township 18 Range 13 _ ,$ection 107 Tax Lot 800
Appellants Signature:
By:
Robert S. Lovlien, OSB #74197
Of Attorneys for Appellants
EXCEPT AS PROVIDED IN SECTION 22:32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION. UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON- THE - RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
1/07
NOTICE OF APPEAL
(This page may be photocopied if additional space is needed.)
BEFORE THE DESCHUTES COUNTY
BOARD OF COMMISSIONERS
APPLICANT:
DELMAR and DOLORES KENNEL,
husband and wife.
File No.:
NOTICE OF APPEAL
APPLICANT/
OWNER: DELMAR and DOLORES KENNEL
61405 K -BARR RD.
BEND, OR 97701
ATTORNEY: ROBERT S. LOVLIEN/HELEN L. EASTWOOD
BRYANT LOVLIEN & JARVIS, PC
P.O. BOX 880
'BEND, OR 97709
ENGINEER: TYE ENGINEERING & SURVEYING, INC.
725 NW HILL ST.
BEND, OR 97701
0,944
REQUEST: Applicant requested approval of tentative plat for a seven -lot subdivision
in the EFU (exclusive farm use) Zone, Alfalfa Subzone, pursuant to
a waiver of land use regulations under Measure 37, and is appealing
the decision of the Hearings Officer issued October 18, 2007, which
denied the application.
LOCATION: East of Bend and South of U.S. Highway 20 on K -Barr Road; Map 18 -13-
10, Tax Lot 800.
ZONING: The property is currently zoned EFU /AL (Exclusive Farm Use/Alfalfa
Subzone).
The Applicants (Appellants) applied for a seven -lot subdivision on 33.15 acres. The
Hearings: Qtfieer in her decision issued October 16, 2007, and mailed October 18, 2007, denied
the Applicants' request for the seven -lot subdivision. A copy of said Decision is attached hereto
as Exhibit "A and incorporated herein by reference. Her decision is based upon her conclusion
that ORS 215.263(3), in effect in October of 1974, is not satisfied because a subdivision does not
conform to the agricultural land policies set forth therein. The Hearings Officer relies upon a
statement made in the Staff Report addressing not ORS 215.263(3), but rather criteria set forth in
DCC 17.16.100(A):
Page 1 of 3 NOTICE OF APPEAL
3008 -005 300.doc
BRYANT, LOVLIEN do JARVIS, PC
ATIOUNEYS AT LAW, ESTABLISHED 19L5
591 SW MW View Way PO Box 880 Bend, 0legon 97709 -0880 (541) 382 -4331 fax (541) 389 -3386 W W W.BWLAWYEASCOM
In the Staff Report, at Page 16, the Staff was addressing the criteria of DCC
17.16.100(A). This criterion reads as follows:
"The subdivision contributes to orderly development and land use patterns in the
area, and provides for the preservation of natural features and resources, such as
streams, lakes, natural vegetation, special terrain features, agricultural and forest
lands and other natural resources."
In the discussion, the Staff made the following statement:
"Staff believes the proposed subdivision would adversely impact agricultural
resources in the area by converting viable farm land to residential use."
However, later, in the same section, Staff stated that in its belief, the preservation of
agricultural lands had apparently been waived by the, State. and County and that therefore, the
criterion of the preservation of agricultural lands had been waived by both the State of Oregon
and Deschutes County.
Earlier in the Staff Report, the Staff also addressed the provisions of ORS 215.203 and
ORS 215.263. In reviewing those statutes, the Staff Report stated as follows:
"As discussed above, Staff believes the dwellings on the proposed subdivision
lots will be dwellings in conjunction with farm use. For the same reasons, Staff
believes that they would satisfy the requirements of ORS 215.203, ORS 215.243
and ORS 215.263 that were applicable to the subject property in October, 1974.
For the foregoing reasons, Staff believes the Applicants' proposed subdivision
will create lots capable of meeting the requirements of ORS 215203, ORS
215.243, ORS 215.263, and all of the subdivision lots will meet all applicable
standards established by PL -5 that applied to the subject property in October of
1974 when Mr. and Mrs. Kennel acquired it."
Despite those conclusions, the Hearings Officer relied upon the Staff comments under
DCC 17.16.100(A) as "substantial evidence that the proposal will not contribute to the
agricultural economy. Therefore, ORS 215.263(3) is not satisfied because the subdivision does
not conform to the agricultural lands policy."
The Staff and the Hearings Officer have a distinct difference of opinion as to whether or
not the requirements of ORS 215.203 and ORS 215.263(3) have been satisfied. The Hearings
Officer relies upon proposed findings from the Staff Report that address not the criteria of the
Oregon Revised Statutes, but the criteria set forth in DCC 17.16.100, which Planning Staff
believes have been waived in this instance.
The site consists of 35.15 acres and contains 21.6 acres of irrigation water. Under the
proposed subdivision, each lot will be provided a minimum of two acres of irrigation water rights
and no water rights will be transferred from the subject property. The agricultural land will be
preserved and most likely put to a more intensive use than current exists.
Page 2 of 3 NOTICE OF APPEAL
3008 -005 300.doc
BRYANT, LOVLIEN & JARVIS, PC
ATfWtNEY5ATLfW, ESTABLISHED 1913
591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541)362 -4331 fax (541) 389 -3386. W W W.BLLAWYERS.WM
The criteria are substantially different. DCC 17.16.100 speaks to a subdivision
contributing to orderly development and land use patterns in the area, and preservation of
agricultural lands. The criteria of ORS 215.263 speaks to the limited supply of agricultural land
necessary for the conservation of the State's economic resources and preservation of such land in
large blocks as necessary to maintain the agricultural economy of the State. There is a distinct
difference because most small farms in Central Oregon do not have an impact on the agricultural
economy of this State.
Applicants are prepared to submit an analysis of the land use patterns of the surrounding
area for the purposes of the review required by ORS 215.263. Applicants submit that this is
different than the analysis of land use patterns that was provided by Planning Staff and relied
upon by the Hearings Officer.
This appeal presents a significant policy issue for the Board of Commissioners with
regard to Measure 37 subdivisions that are submitted after the adoption of Senate Bill 100, but
before the adoption of the Exclusive Farm Use Zones and Comprehensive Plan and Zoning
Acknowledgement by LCDC.
Applicants' attorney does not recall the County requiring any review of agricultural
subdivisions if the subdivision met the minimum lot size criteria of PL -2 and PL -5 in effect
during the .1970s.
4. The Applicant hereby waives the 150 -day rule as required by DCC 22.32.
THEREFORE, because of the policy issues involved, the Applicant requests a de novo
review by the Board.
Dated this k day of October, 2007.
BRYANT, LOVLIEN & JARVIS, P.0
By: 44//1
ROBERT S. LOVLIEN, OSB# 74197
Of Attorneys for Applicants/Appellants
Page 3 of 3 NOTICE OF APPEAL
3008 -005 300.doc
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW, ESUBIISIED 1915
591 SW Mill view Way PO Box 880 Bend, Oregon 97709-0980 (541) 382-4331 fax (541) 389 -0386 W W WBLJLAWYERS.COM