Loading...
HomeMy WebLinkAbout2014-04-02 Work Session MinutesDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, APRIL 2, 2014 Present were Commissioners Tammy Baney and Anthony DeBone; Commissioner Alan Unger was out ofthe office. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; and, for a portion ofthe meeting, Nick Lelack and Kevin Harrison, Community Development; Laurie Craghead, County Counsel; Scott Johnson and David Inbody, Health Services; andfour other citizens. No representatives ofthe media were in attendance. Chair Baney opened the meeting at 2:05 p.m. 1. Discussion of Thornburgh Decision Appeal. Kevin Harrison stated that the question today is whether the Board wants to hear an appeal of the Hearings Officer's decision on this case. She determined that the conceptual master plan for the resort has not been initiated. If it had been, there is no expiration date. Ifit wasn't, the application is void. This is a key decision. The application started in 2011, and was heard by the Hearings Officer who found the conceptual master plan had been initiated. On appeal at LUBA, they said that the Hearings Officer misinterpreted the Code and the decision was remanded. It has since been to the Court of Appeals who confirmed this opinion. The Hearings Officer's decision was redone on direction from LUBA and the decision was changed to reflect the conceptual master plan had not been initiated. Key elements are whether the conditions of approval have been substantially addressed and whether any shortcoming is not the fault of the applicant. Minutes of Board of Commissioners' Work Session Wednesday, April 2, 2014 Page 1 of6 , Minutes of Board of Commissioners’ Work Session Wednesday, April 2, 2014 Page 2 of 6 The applicant is Loyal Land; they granted a 90-day extension for an appeal to be heard. The initial 90 days ends on April 5. The applicant asked that the appeal be heard de novo. The alternative or supplement to this request is asking the Board to open the record and allow new evidence submitted to the Hearings Officer. The Hearings Officer was not allowed to use this information. Ms. Craghead reminded the Board and others in the room that this is not a hearing today, so the Board cannot take testimony. Chair Baney said the 90 days concerns her because of the upcoming budget process. Mr. Harrison stated that this would be just hearing the appeal to the Board and the final decision. Mr. Harrison observed that typically when the Board decides whether to hear, they consider the timeline; whether the appellant had a full and fair hearing on all of the issues; and whether there is an interpretation of Code involved. All the questions at issue revolve around Code and conditions of approval. In many cases, it has to do with statutory requirements and the County has little leeway to interpret. In this case, the Board can interpret the parts relating to Code, and LUBA will give deference to the Board for its opinion. Mr. Lelack emphasized that the directions to the Hearings Officer was clear on what she could or could not consider. The Board could consider new information that she could not take into account, if it is heard de novo. Ms. Craghead stated that one assignment of error is that the Hearings Officer improperly narrowed the scope. However, she was not allowed to take in new evidence. This can be done at the discretion of the Board. Another issue is whether the Board wants to open the record based on the first decision. Chair Baney asked if they could insist on new information limited to a later timeframe. Ms. Craghead said they could. The Board has flexibility on what they can choose to hear and consider. Ms. Craghead stated that there were three ways to determine if it was an initiated review. One way is to determine that it has lawfully occurred; if substantial construction occurred; or whether conditions of the permit have been substantially exercised. The third criterion is what LUBA considered. No one appealed the first two, so LUBA could not make a decision based on those. Minutes of Board of Commissioners’ Work Session Wednesday, April 2, 2014 Page 3 of 6 The Board’s only decision can be the item under remand, the third aspect. There are provisions in the remand Code allow new evidence, but if the evidence relates to the first two aspects, they also have to relate to the third. This whole section is based on County Code and not State law. It is possible their evidence relates to conditions of approval, but cannot just apply to the first two ways. No one appealed on the first two and therefore they were considered waived. The applicant now wants to make an argument that the second item fits, but LUBA says it no longer is applicable even though they said it should have been considered. It does not mean that the evidence they wish to have considered under the second way doesn’t fit the third as well. Mr. Harrison stated that part of the Hearings Officer’s analysis involved definitions of words, and there are differences of opinion on what these might mean. The Board gets to determine what they are. Chair Baney feels that they have a responsibility to hear this. Commissioner DeBone said he does not like this to be in the balance based on one word, “or”, so he would like to hear it as well. Chair Baney asked if it would be a problem hearing it de novo. She asked how they can get the information they need without becoming overwhelmed. Ms. Craghead said that the applicant might present more than they should and give them a second bite of the apple. The opponents would not like this. On the other hand, the Board might say they wish they had known this before. Determining whether something should be in the record is difficult. Nick Lelack stated that there have been changes of ownership, and the parties now involved may not have raised key issues in the first go-round. Ms. Craghead stated that their counsel has changed also. Mr. Harrison said that the applicant makes the request to open the record for the purpose of putting in additional information to address the criteria. It could be limited to a certain timeframe, and the opponents have to respect this limitation. Chair Baney stated that she wouldn’t be sure if this was new information that is allowed based on the appeal timeframe. It should be what the Hearings Officer could not use. She asked how they would know which information to consider. Minutes of Board of Commissioners’ Work Session Wednesday, April 2, 2014 Page 4 of 6 Mr. Harrison stated that the information is not in the record so it is impossible for staff to determine what it is or what to include. Ms. Craghead noted that it might relate to construction or permits, or the 38 conditions of approval. She is not sure of the timing of some of the information they wish to submit. If the Board allows de novo, it would be anything that is not on the record, but they could limit it to item #3. They have to make a decision on the evidence as it comes in. The decision on the record could not consider this. Chair Baney feels they should hear it limited on this item only, de novo. Commissioner DeBone feels that de novo is to consider everything, and he is not sure how they would limit this. Chair Baney said it could be new evidence that they became aware of or occurred after the date of the appeal. Ms. Craghead said they could have gotten other agency approvals that were required. This would depend on when they applied for it, though. Chair Baney said there is a good faith component involved. If they limit it, they may end up wishing it were de novo. Commissioner DeBone would like full information. Mr. Harrison stated the vested rights analogy is a good one, but it is not a component of this issue. Chair Baney said they would have had to make a good faith effort; for instance, sending off letters for agency approval but not getting the information back in time; or other things outside of their control. Chair Baney stated that staff would need to guard for the testimony that the Board should not consider, but with a record this size, it would be very difficult. Unlimited de novo would probably be the easiest way to make sure they consider all they should. Limited de novo would only relate to the one piece of the criteria. On the record allows nothing new. This is a unique situation and this is solely based on County Code; others are determined based on State law. Mr. Harrison recapped that the Board will hear this de novo, based on the one criterion. The final date for a decision is late June; they would need to get through the hearing in early to mid-May. Chair Baney said they are in the middle of budget hearings then, so it needs to be later. They determined that they would have a work session on June 2, with a June 4 hearing. Staff will provide information to the Board the week before. Minutes of Board of Commissioners’ Work Session Wednesday, April 2, 2014 Page 5 of 6 2. Other Items. At 2:50 p.m., the Board went into Executive Session under ORS 192.660(2)(e), real property negotiations; and ORS 192.660(2)(d), labor negotiations. The Board went out of executive session at 3:20 p.m. ___________________________ Mr. Anderson said he met with Rick Allen of La Pine, and had suggested they address the TDC/PRC (Transfer Development Credit/Pollution Reduction Credit) issue at a joint meeting. They want to talk about the industrial park and strategies for that property. This might be a good time for the BLM to do a hand-off of the land to the City. Mr. Anderson would like the Board to meet with the La Pine City Council on June 4, 2 to 4 PM in La Pine as a regular work session. Chair Baney stated that members of the public might not be able to attend during the day. Mr. Anderson said the Council meets in the evening usually. Commissioner DeBone stated that those who are interested will be there, and the rest will probably be retired folks. Chair Baney indicated that some La Pine people have been working hard on finding emergency shelter in that area. She would like to find out what the needs are and what is being done there, to try to get the attention of the City Council. Mr. Anderson said that Mr. Allen would not be a fan of temporary shelters as they just got through cleaning up some of the less attractive mobile home parks and buildings in the area. In regard to the rodeo grounds, Mr. Anderson said they might be able to do a single property UGB expansion to bring it in, allowing for utilities and other services to be available. ___________________________ The Board went back into executive session at 3:30 p.m., and back out at 3:40 p.m. ___________________________ Chair Baney asked about an AOC request for funding for veterans services. She does not see a problem with this, but is surprised by the cost. Commissioner DeB one supports veterans but wants to know more about this program before committing County funds. The Board will hold off on this request for now while they find out more. Chair Baney is also concerned about the higher AOC dues. Being no further items discussed, the m ee ting adjourned at 3:45 p.m. DATED this z~rj Dayof ~ 2014 for the Deschutes County Board of Commissioner . Tam ~ Anthony DeBone, Vice Chair ATTEST: Alan Unger, Commissioner ~~ Recording Secretary Minutes of Board of Commissioners' Work Session Wednesday, April 2, 2014 Page 6 of6 Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 2:00 P.M., WEDNESDAY, APRIL 2, 2014 -note later time 1. Discussion of Thomburgh Decision Appeal-Kevin Harrison, CDD 2. Other Items Executive Session, under ORS 192.660(2)( e), real property negotiations Executive Session, under ORS 192.660(2)( d), labor negotiations PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2X d), labor negotiations; or ORS 192.660(2 ) (b), personnel issues; or other issues under ORS 192.660(2), executive session. Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board o/Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. Ifyou have questions regarding a meeting, please call 388-6572. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 388-6571, or send an e-mail to honnie.baker@deschutes.org. 22.34.050. Effect of Reversal. A land use decision reversed by LUBA or the Court of Appeals that results in a final appellate judgment or order of reversal cannot be further heard by the County in the absence of an amended or a new application. Submission of a revised application shall be governed by the time limit set forth in DeC 22.28.040. (Ord. 95-045 §§39 and 43, 1995) Chapter 22.34 2 (10/2001) c o 1 ---­ ~ 1 -------t- T I I ----+1-------+1­I I I --+ -II----~---+-I-+--1-"-"-~----+--I I j - I I ;­1 I I + 4­o 1 Chapter 22.34. PROCEEDINGS ON REMAND 22.34.010. Purpose. 22.34.020. Hearings Body. 22.34.030. Notice and hearings requirements. 22.34.040. Scope of proceeding. 22.34.050. Effect of reversal. 22.34.010. Purpose. DCC 22.34 shall govern the procedures to be followed where a decision of the County has been remanded by LUBA or the appellate courts or a decision has been withdrawn by the County following an appeal to LUBA. (Ord. 95-045 §§39 and 40, 1995) 22.34.020. Hearings Body. The Hearings Body for a remanded or withdrawn decision shall be the Hearings Body from which the appeal to LUBA was taken, except that in voluntary or stipulated remands, the Board may decide that it will hear the case on remand. If the remand is to the Hearings Officer, the Hearings Officer's decision may be appealed under DCC Title 22 to the Board, subject to the limitations set forth herein. (Ord. 96-071 § I H, 1996; Ord. 95-045 §§39 and 41, 1995) 22.34.030. Notice and Hearings Requirements. A. The County shall conduct a hearing on any remanded or withdrawn decision, the scope of which shall be detennined in accordance with the applicable provisions of DCC 22.34 and state law. Unless state law requires otherwise, only those persons who were parties to the proceedings before the County shall be entitled to notice and be entitled to participate in any hearing on remand. B. The hearing procedures shall comply with the minimum requirements of state law and due process for hearings on remand and need comply with the requirements of DCC 22.24 only to the extent that such procedures are applicable to remand proceedings under state law. C. A final decision shall be made within 90 days of the date the remand order becomes effective. (Ord. 99-031 §17, 1999; Ord. 95-045 §§39 and 41A, 1995) 22.34.040. Scope of Proceeding. A. On remand, the Hearings Body shall review those issues that LUBA or the Court of Appeals required to be addressed. In addition, the Board shall have the discretion to reopen the record in instances in which it deems it to be appropriate. S. At the Board's discretion, a remanded application for a land use pennit may be modified to address issues involved in the remand or withdrawal to the extent that such modifications would not substantially alter the proposal and would not have a significantly greater impact on surrounding neighbors. Any greater modification would require a new application. C. I f additional testimony is required to comply with the remand, parties may raise new, unresolved issues that relate to new evidence directed toward the issue on remand . Other issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be reopened. (Ord . 95-045 §§39 and 42, 1995) Chapter 22.34 (10/200 I) C. Extensions. 1. The Planning Director may grant one extension of up to one year for a land use approval or a phase of a land use approval, and two years for those dwellings listed in DeC 22 .36.010(B)(4) above, regardless of whether the applicable criteria have changed , if: a . An applicant makes a written request for an extension of the development approval period; b. The request, along with the appropriate fee, is submitted to the County prior to the expiration of the approval period; c. The applicant states reasons that prevented the applicant from beginning or continuing development or meeting conditions of approval within the approval period; and d. The County determines that the applicant was unable to begin or continue development or meet conditions of approval during the approval period for reasons for which the applicant was not responsible, including, but not limited to, delay by a state or federal agency in issuing a required permit. 2 . Up to two additional one-year extensions, or two-year extensions for those dwellings listed under DeC 22.36.010(B)(4) above, may be granted under the above criteria by the Planning Director or the Planning Director's designees where applicable criteria for the decision have not changed. 3. In addition to the extensions granted in Dec 22.36.0 I 0(C)(1), one additional two-year extension for a land use approval or a phase of a land use approval may be granted by the Planning Director or the Planning Director's designee under the criteria listed under DeC 22.36.0 I O(C)( I) for approvals issued prior to June 8, 2011. This subsection does not apply for those dwellings listed under DeC 22.36 .01O(B)(4) above. D. Procedures. I. A determination of whether a land use has been initiated shall be processed as a declaratory ruling. 2. Approval of an extension granted under DeC 22 .36.0 lOis an administrative decision, is not a land use decision described in ORS 197.015 or Title 22 and is not subject to appeal as a land use decision and shall be processed under DeC Title 22 as a development action, except to the extent it is necessary to determine whether the use has been initiated. E. Effect of Appeals. The time period set forth in Dec 22.36.0 I O(B) shall be tolled upon filing of an appeal to LUBA until all appeals are resolved. (Ord. 2011-016, 2011; Ord. 2004-00 I §4, 2004; Ord. 95-045 §43A, 1995; Ord. 95-018 § I, 1995 ; Ord. 90-007 § I, 1990) 22.36.020. Initiation of use. A. For the purposes of DeC 22.36.020, development action undertaken under a land use approval described in DeC 22.36.010, has been "initiated" ifit is determined that: I. The proposed use has lawfully occurred; 2. Substantial construction toward completion of the land use approval has taken place; or 3. Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant. B. For the purposes of DCe 22.36.020, "substantial construction" has occurred when the holder of a land use approval has physically altered the land or structure or changed the use thereof and such alteration or change is directed toward the completion and is sufficient in terms of time, labor or money spent to demonstrate a good faith effort to complete the development. (Ord. 95-018 §2, 1995; Ord. 90-007 § I, 1990) 22.36.025. Transition Rules -Applicability. A. The two-year duration period set forth in DeC 22.36.0 I O(B) shall be applied only to land use approvals issued after the effective date of Ordinance 95-018. Chapter 22 .36 2 (06 /2011 )