HomeMy WebLinkAboutFee Waiver Request - ShepherdCommunity Development Department
Planning Division Building Safety Division Environmental Soils Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
MEMORANDUM (541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
TO: Board of County Commissioners
FROM: Nick Lelack, AICP, Director
DATE: March 26, 2014
RE: Fee Waiver Request -John Shepherd
Background
The purpose of this work session is to consider a Fee Waiver Request from John Shepherd. The
request is to waive all fees in the amount of $8,455 for a Conditional Use Permit (CUP) in the
amount of $2,320, Site Plan Review in the amount of $3,135, and Hearings Officer deposit of
$3,000 for a private park on his property at 71120 Holmes Road, Sisters, OR. Mr. Shepherd states
the reason for the "public benefit" and "other remedies have been exhausted.» Please find his
letter attached. In addition, his attorney, Dave Hunnicut, President of Oregonians in Action, wrote
in an email dated March 18,2014 the following:
Nick:
In support of John Shepherd's fee waiver request, I would point out that resolution of the
main issue in this case has statewide implications and will likely be appealed by the losing
party to LUBA. It would be a benefit to all Deschutes County residents with an interest in
this issue (from whatever perspective) to have this issue resolved, so that property owners
and environmental groups will know whether or not weddings will be allowed as an activity
in a "private park," and if so, under what limitations that activity may occur.
Mr. Shepherd has already paid the county a substantial fee, the primary issue has already
been litigated to the County Hearings Officer, and she has already rendered a decision on
the primary issue. In Mr. Shepherd's previous application, there did not seem to be
significant disputes over the facts, and there were only three parties involved, as I recall.
The Hearings Officer's decision was thorough, and laid out a roadmap for a successful
private park application. Whether the Board agrees with that decision or not is certainly
unknown, but repeating the same steps to the Hearings Officer on a similar application
which will likely involve the same parties raising the same issues to substantially similar
facts seems like a waste of everyone's time and resources, including County staff, the
applicant, and the opponents. Moving the case directly to the Board for resolution of an
issue that will have great Significance to the County and possibly statewide is prudent, and I
hope that the Board will consider dOing so.
Dave Hunnicutt
President
Oregonians In Action
Quality Services Performed with Pride
In 2013, Mr. Shepherd also requested a fee waiver for the same reasons, and the Board denied
the request.
Mr. Shepherd subsequently applied for a CUP for a private park on his property in late spring 2013.
He modified his application in summer 2013. A County Hearings Officer denied the application in
December 2013. The decision was not appealed. Staff is available to discuss the issues raised by
Mr. Shepherd in his letter regarding that process. The decision is attached.
Discussion
In consideration of Mr. Shepherd's fee waiver request, staff notes the following:
(1) Mr. Shepherd still has a balance due in the amount of $750 from his previous
application.
(2) There is a pending code enforcement case on Mr. Shepherd's property for an
unpermitted church. A church requires a land use permit and must comply with
commercial building and access standards. Mr. Shepherd has stated publicly before
the County Hearings Officer and in writing via email that he is using his house to hold
church services.
(3) In 2013, the County put code enforcement in abeyance through September 30,2013
while Mr. Shepherd pursued permits. Mr. Shepherd also agreed in writing to not
conduct any weddings after that date, including summer 2014, unless necessary
permits were obtained.
CDD and Legal Counsel have on file contracts for commercial weddings for summer
2014 (most weekends) submitted by Mr. Shepherd. One question is whether Mr.
Shepherd will honor this agreement with Deschutes County? If Mr. Shepherd were to
submit his land use applications immediately, it does not appear possible a final
decision could be issued prior to the start of wedding season due to public hearing and
notification requirements, and not including time for appeals, if necessary.
CDD staff has been contacted by several parties over the past few weeks inquiring
about the status of permits for weddings on Mr. Shepherd's property this summer.
(4) While staff agrees with Mr. Hunnicutt that the Hearings Officer "rendered a decision on
the primary issue" of weddings, this decision is not binding on the Board and has not
been tested at LUBA. There are a number of complicated and potentially significant
issues to be addressed in the Site Plan Review, including the Wildlife Area Overlay
Zone. In addition, the County's Procedures Ordinance cannot also be waived by
"moving the case directly to the Board for resolution." Planning and Legal staff believe
a public hearing before a Hearings Officer is both required and necessary.
Requested Board Action
Staff seeks a Board decision to:
(1) Approve the blanket fee waiver in the amount of approximately $8,455 and find that the action
is in the public benefit, per the fee waiver policy; or
(2) Approve a partial fee waiver (an amount less than $8,455) and find that the action is in the
public benefit, per the fee waiver policy; or
(3) Deny the fee waiver request; or
(4) Conduct another work session on this request (this action may include directing staff to provide
additional information).
-2
I am hereby applying for a fee waiver for my CUP application for a private park.
The fee waiver application states:
The Board of County Commissioners may waive fees in any other case where the public benefit is served
and other remedies have been exhausted.
I believe I qualify for a waiver under the circumstances stated above for the following reasons:
1. Other remedies have been exhausted.
a. I have been pursuing the legal options for a wedding venue for four years.
b. After the Commission allowed wedding venues under agritourism, I submitted an
application only to be told that it was "virtually impossible" to qualify.
c. Following CDD's advice, I submitted a CUP application for a private park, paying the full
amount. When Kevin Harrison, principal planner, raised the objection that wedding
events were not recreational, and thus should not, in and of themselves, qualify for a
private park, I spent another $880 to submit a revised CUP application with an expanded
park to address that concern.
d. Furthermore, Kevin Harrison told me that I could postpone the expensive Site Plan
Review until a CUP decision was reached. Ultimately, the Hearings Officer rejected my
application largely because of issues that would have been resolved in Site Plan Review.
e. Finally, Harrison's "threshold" objection that a wedding event is not recreational and
thus not suitable to a private park was overturned by the HO who agreed with us that
wedding events are recreational and suitable for a private park.
f. Last year, I paid Deschutes County $8,500 for permits, fines and fees, just related to this
application. Compare that to my entire 2013 income from substitute teaching of
$11,071.
2. The public benefit is served.
a. The public benefit is served in that this CUP application will set legal precedent and thus
further clarify a legal issue that has been simmering in Deschutes County for years.
b. Furthermore, the public is served because countless brides will have an affordable and
private venue in which they may marry.
c. This venue will allow me to generate a modest income on EFU land that is mis
designated as "farm land" since the soil is considered "waste land" and it has never
been irrigated or cultivated.
d. The citizens of Deschutes County will benefit by the economic activity generated by 18
weddings per year, many of them destination weddings. Calculating the average amount
spent on each wedding ($26,000) and the amount spent by each visitor to Deschutes
County, I estimate that my venue will generate $1.25 million in local economic activity.
Thereby, having paid this fee once already, I respectfully request a waiver of the CUP application fee.
John Shepherd
71120 Holmes Road
Sisters OR 97759
FEE WAIVER POLICY
Effective January 4, 2006, the Deschutes County Board of Commissioners approved Ordinance
Nos. 2006-001, 2006-002 and 2006-003, delegating authority to administer and approve septic permit, building
permit, and land use permit fee waiver requests to the Community Development Director and County
Administrator (DDC 13.08, 15.04.160 and 22.08.010).
The Board of County Commissioners of Deschutes County has delegated full authority to the
Community Development Department (CDD) Director to administer this policy, with the exception of Items #7
and #8.
POLICY GUIDELINES:
1. Fee waivers under this policy provide a public benefit.
2. With the adoption of this policy and continuing with each budget, an amount not to exceed $5,000 shall be
set aside into a hardship account within the CDD budget from any savings of budgeted expenses or
excess revenue.
3. When money is available in the hardship account of CDD, the CDD Director may authorize fee waivers in
amounts not to exceed the fee waiver budget each year.
4. The CDD Director shall find an applicant meets one of the following criteria in granting fee waivers:
A. The applicant meets the criteria for indigency and at least one of the following conditions. Indigence
shall be established by the financial hardship process attached as Exhibit “A.”
1. There is an immediate need of the services of the Community Development Department to
protect the applicant’s or the public’s health or safety.
2. Granting the waiver will create a long-term efficiency of a Code Enforcement issue.
B. The request is from a nonprofit organization that has encountered an extraordinary hardship that
could not have been anticipated in planning for and funding of the project, and the fee waiver will
benefit the community.
(NOTE: Community Service may be required by the CDD Director for some or all of the waived fees.)
5. Fee Waiver requests covered above shall be submitted on a form provided by CDD. Applicant shall
provide a written explanation of the request and explain why one or more of the above criteria are
satisfied. The request will be delivered to the CDD Director for review and decision.
Fee Waiver Policy and Form 1/2006, Rev. 1/2012 Page 2
6. The applicant may appeal the CDD Director’s decision to the Deschutes County Administrator. The
applicant may appeal the Deschutes County Administrator’s decision to the Board of County
Commissioners.
7. The Board of County Commissioners may issue blanket fee waivers, subject to the above criterion, for
classes of hardship such as catastrophic fire.
8. The Board of County Commissioners may waive fees in any other case where the public benefit is served
and other remedies have been exhausted.
FINANCIAL HARDSHIP
Some property owners or other responsible persons who lack the financial ability to obtain permits and
approvals to pay fees established by the County for Community Development Services may receive relief. The
procedure for establishing financial hardships is set forth below:
Procedure:
In cases where the applicant appears to have insufficient resources to pay fees, the applicant may apply to
qualify for financial or other assistance within available resources and under the following procedures.
1. Criteria for Indigency
To qualify for assistance under this section, the applicant or other responsible person must demonstrate a
substantial financial hardship that makes paying the required fees impractical.
2. Fee Reduction/Waiver
An applicant may apply for a reduction or waiver of CDD development fees for permits. The decision to
reduce or waive development fees will be made by the CDD Director, considering the following factors:
A. The degree of the applicant’s indigency;
B. The cost of the development permit(s) or approval(s) required;
C. Funds available for fee reductions/waivers in CDD’s budget or in any other available funds;
and
D. Other assistance available in the community.
3. Community Service in Lieu of Fees
Upon a finding of indigency, the CDD Director may order community service at the rate of $10.00
per hour in lieu of some or all waived fees. A period of time shall be established in which the
community service shall be completed.
Fee Waiver Policy and Form 1/2006, Rev. 1/2012 Page 7
FEE WAIVER REQUEST FORM
Name of Individual/Organization:
Address: City/State/Zip: Phone: (____)
Type of Permit and Fees:
[ ] Building $ [ ] Planning $
[ ] Subsurface Sewage $ [ ] Other: $
Total amount of fee(s) requested to be waived: $______________________________________
The applicant shall provide a written explanation of the request and explain why one or more of the criteria
below are satisfied. The request will be reviewed by the Community Development Director and a response will
be provided within ten (10) business days.
Criteria that must be met to qualify for a Fee Waiver:
A. The applicant meets the criteria for indigency and at least one of the following conditions. Indigence shall
be established by the financial hardship process attached (refer to Affidavit of Indigence and Request
for Fee Waiver form).
1. There is an immediate need of the Community Development Department’s services to protect the
applicant’s or public’s health or safety.
2. Granting the fee waiver will create a long-term efficiency for a Code Enforcement issue .
B. The request is from a nonprofit organization that has encountered an extraordinary hardship which could
not have been anticipated in planning for and funding of the project; and the fee waiver will benefit the
community.
(NOTE: The Community Development Director may require performance of community services for some
or all of the waived fees.)
Fee Waiver Policy and Form 1/2006, Rev. 1/2012 Page 3
AFFIDAVIT OF INDIGENCE AND REQUEST FOR FEE WAIVER
This information is submitted in confidence and is not subject to public disclosure (ORS 192.502(2).
APPLICANT’S NAME:
I, the undersigned, am requesting a waiver of Deschutes County Fees for Community Development Services
because I cannot pay at this time without causing substantial hardship to myself and/or my dependent family.
The following information is true to the best of my knowledge and belief. I ask the CDD Director to use the
information to decide whether I may receive a fee waiver at public expense. I understand I may be required to
document or verify this information.
1. PERSONAL
Name (print): ___________________________________________ Phone: (____)
Residence Address: City/State/Zip:
Mailing Address (if different): City/State/Zip:
Date of Birth: ___________________ Social Security No. _______-_______-______ [ ] Male [ ] Female
Mo/Day/Year
Marital Status: [ ] Married [ ] Single [ ] Divorced [ ] Separated [ ]Widowed [ ]Other:
Complete the following information for everyone living in your household:
Name Relationship Age Monthly Income
**Staff Use Only**
Description of fees to be waived: Est. Amount: $
Fee Waiver Approved: [ ] Yes [ ] No ____/____/____
Director, Community Development Dept. Date
Comments:
Fee Waiver Policy and Form 1/2006, Rev. 1/2012 Page 4
2. EMPLOYMENT AND INCOME
Present Employer___________________________ How Long ______ Occupation
Address: City/State/Zip: Phone: (____)
Hourly wage $___________ Average Hrs./Week: _____________ Net (after tax) monthly income:
If unemployed, how long since you were employed: ______________
Previous Employer: How Long: Occupation:
Address Phone ( ____ )
Spouse’s Employer: How Long: Occupation:
Address Phone ( ____ )
Hourly Wage $___________ Average Hrs./Week: _____________ Net (after tax) monthly income:
If unemployed, how long since spouse was employed: ______________
Other income for you and spouse, dependents or household members (example: Social Security,
unemployment, retirement, public assistance, child support, worker’s compensation, disability, etc.)
Source of Income (Describe) Amount How Long Received How Often Received
Other household members who help pay for your living expenses:
Name Amount Payment for What Describe
3. PROPERTY AND ASSETS OWNED BY YOU, SPOUSE AND DEPENDENTS
Cash Available: ______________________________
Savings Acc’t. No: Balance: $ Bank/Branch Office:
Checking Acc’t. No: Balance: $ Bank/Branch Office:
Other Acc’t. No: Balance: $ Bank/Branch Office:
Real Estate: Address, City Value Amount Owed Equity Payments Made
Fee Waiver Policy and Form 1/2006, Rev. 1/2012 Page 5
Credit Card Name/Bank Account Number Expiration Date
Motor Vehicle Make/Year Value Amount Owed Equity Payments Made
Are any of these motor vehicles used for work (other than driving to and from work)? [ ] Yes [ ] No
All other property or assets (example: furniture, boats, guns, jewelry, tools, etc.):
Description Value Description Value
Money owed to you or spouse by others (example, tax refund, trust, judgment, etc.):
Name of Debtor Amount Owed Date Payment Expected
4. MONTHLY EXPENSES
List all expenses that are paid monthly by you, individually, or by you, jointly with spouse:
Rent/Mortgage: $ Utilities: $ Credit Card: $
Car: $ Insurance: $ Medical: $
Child Support $ Court Order: $ Other: $
[ ] I am willing to perform Community Service to offset the public cost of my request.
[ ] I unable to perform Community Service for the following reasons:
I certify that the above information is true and correct to the best of my knowledge and belief.
Applicant Signature Date
Fee Waiver Policy and Form 1/2006, Rev. 1/2012 Page 6
RELEASE TO OBTAIN INFORMATION FOR VERIFICATION
(CONFIDENTIAL)
APPLICANT’S NAME:
I understand that the County may verify my employment and financial situation to determine my eligibility for a
fee waiver. I understand that some of the information necessary for this verification is contained in records that
are protected under federal and state laws. I have therefore signed this release which allows public and private
organizations and individuals to provide the County or its designee with requested information. I understand
that organizations and individuals which may be contacted include but are not limited to:
Social Security Administration
State Department of Revenue
Mortgage Holder
Department of Motor Vehicles
Employment Division(s)
Utility Companies
Worker’s Compensation Disability Provider
Adult and Family Services Division
Landlords
Private Disability Insurance Provider
Private Life Insurance Provider
Past Employers
Release Assistance Office
Credit Card Holders
Credit Bureaus
Schools and Colleges
Banks, Savings & Loans, Credit Unions (requesting savings, stocks, bonds, checking, loan and credit
information including copies of applications)
Other:__________________
By signing this release, I specifically authorize the County or its designee to directly contact my current
employer by telephone or in writing, and to release and utilize my address as needed by the Board of County
Commissioners or its designee.
Applicant Signature Date