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HomeMy WebLinkAboutDowell-Kuhn CDD Memo MEMORANDUM April 28, 2008 To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: Board consideration to hear or not hear appeals (A-09-4, A-09-5) of a Hearings Officer decision reversing the Planning Division’s decision to issue a LUCS and building permit to remodel the Dowells’ existing dwelling on the subject property (A-07-9). BACKGROUND The Kuhns appealed (A-07-9) the County’s issuance of a Land Use Compatibility Statement (LUCS) and building permit (B65731) authorizing an interior remodel of the existing dwelling on property belonging to Jeff and Pat Dowell. On March 26, 2008, the Hearings Officer issued a decision dismissing the Kuhns’ appeal on the grounds that the Kuhns are not authorized to appeal the 2007 Land Use Compatibility Statement (LUCS) and building permit issuance under either state law or the county’s land use procedures ordinance. The Kuhns appealed (A-08-6) this decision to the Board, which declined to hear the appeal. On May 29, 2008, the Kuhns appealed the Hearings Officer’s decision to the Land Use Board of Appeals (LUBA). On March 11, 2009 LUBA issued a decision remanding the Hearings Officer’s decision dismissing the Kuhns’ appeal for further county proceedings. LUBA concluded the LUCS and building permit at issue in the Kuhns’ appeal constituted a land use decision from which the Kuhns had the right to appeal. On August 17, 2009, the Hearings Officer issued a decision on remand reversing the Planning Division’s decision to issue a LUCS and building permit to remodel the Dowells’ existing dwelling on the subject property. The Hearings Officer found that the Dowells’ dwelling was subject to a 400-foot maximum building line, measured from Sisemore Road as identified on the original partition plat and on the Dowells’ 1992 Landscape Management site plan. She also found that the existing the dwelling was constructed beyond that 400-foot building line. Therefore, the Hearings Officer found that the Dowells’ dwelling was not “lawfully established” for purposes of obtaining approval for an alteration of the dwelling under Section 18.40.020(M). Accordingly, the Hearings Officer found that the county erred in issuing a LUCS and building permit for an interior remodel of the Dowells’ dwelling. On August 28, 2009, the Dowells appealed (A-09-4) this Hearings Officer Decision on three grounds: 1) a County Hearings Officer may not overturn a decision of the Deschutes County Circuit Court that was upheld by the Oregon Court of Appeals; 2) the reliance on a document that is inconsistent on its face fails to show that the Applicant or the County thought that the dwelling could only be constructed within 400 feet of Sisemore Road; and 3) case law supports the proposition that a County cannot grant an approval of a dwelling and later revoke the approval without cause. The Dowells also requested a de novo hearing. On August 31, 2009, the Kuhns appealed (A-09-5) the Hearings Officer Decision, requesting a hearing on the record. Although the Kuhns support the Hearings Officer’s decision overall, the Kuhns argue that the Hearings Officer erred in finding that a homeowner’s agreement between the Dowells and Kuhns is no longer required. According to the Hearings officer, the original condition of approval required such an agreement only as a condition of the sale of a property and not as a condition to further construction on the property. Therefore, although the Hearings Officer found the existing deed restrictions did not constitute the originally required homeowners agreement, since the lots in the cluster development were sold without that agreement, the hearings officer held that condition is no longer applicable. The Kuhns object to that holding. STAFF DISCUSSION Whether or not to hear the appeal. As stated above, the Board declined to hear this case previously, preferring instead to have the issues decided by LUBA. The Hearings Officer found the facts and legal analysis to be a close call in this case. That may be a reason for the Board to again decline to hear the case and allow LUBA to determine if the Hearings Officer’s decision is to be affirmed, remanded or reversed. On the other hand, because it is a close call and a reasonable person could conclude the same or differently than the Hearings Officer, if the governing body issues a final decision in this case, LUBA will likely not reweigh the evidence and, thus, defer to the governing body’s interpretation of the facts and legal consequences of that fact interpretation. Thus, the decision is less likely to be remanded again, whichever way the Board decides the case. Type of hearing. If the Board decides to hear the appeal, the staff recommends either a hearing on the record or a limited de novo hearing. The parties, in particular, the Kuhns, have submittal numerous documents repeatedly in this case. The only possible documents not included are some documents that were submitted at the 2003 private right of action trial and the trial transcript. LUBA also noted the lack of those documents. Thus, the Board could hear the appeal as a limited de novo hearing in which the hearing would be on the record except for the addition of the record submitted to the trial court in the 2003 case and any excerpts from the transcript of that trial that the parties wish to submit. FINAL DECISION CLOCK ORS 215.435(1) provides that the county has 90 days from the date of LUBA’s final order on remand to issue a final local decision on the land use matter subject to the remand. Because the Dowells agreed to extend the written record from May 21 through June 18, 2009, under ORS 215.435(2)(b) the 90-day period was extended for a period of 29 days and expired on July 23, 2009. Although the 90-day deadline has passed, the Dowells have agreed to give the county to September 16, 2009 to decide whether or not to hear the case and, if the Board decides to hear the case, whatever time, within reason, the county needs to hear the case and write the final decision. Thus, should the Board decide to hear the case, the exact deadline by which to issue a final decision should be established and included in the record. DOCUMENTATION A copy of the Hearings Officer decision and relevant previous documents are attached for your review. SCHEDULE This item is scheduled for a work session on September 16, 2009 in order for the Board to decide whether or not to hear the appeal prior to the absence of Laurie Craghead, Deschutes County Assistant Legal Counsel for three weeks beginning September 19, 2009. Please feel free to contact me with any questions or concerns.