Dunes City Planning Archive

Dunes City Planning Commission
M I N U T E S REGULAR SESSION – April 22, 2010 at 6:00 pm
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City Hall - 82877 Spruce St. , Westlake , OR 97439

1.     Call to Order

The Planning Commission meeting was called to order by Planning Chairman, David Bellemore at 6:07 p.m.

2.     Swearing in of newly appointed Planning Commissioner

Chairman Bellemore swore Mr. Lee Riechel in as a newly appointed Planning Commissioner.

3.     Roll Call

Roll Call was taken by Planning Official, Lisa Ekelund

Present: Planning Chairman David Bellemore , Vice-Chairman Tom Bassett , Commissioner Ken Henderson , Commissioner Marilyn Miller , Commissioner Ken Platt , and Commissioner Lee Riechel .

Absent:    None

Others Present:    Planning Official, Lisa Ekelund , City Recorder , Fred Hilden ,
                                  and 4 individuals.

4.     Pledge of Allegiance

All who were present stood for the Pledge of Allegiance.

5.     Approval of the Agenda

Commissioner Miller made the motion to approve the agenda. Commissioner Platt seconded the motion. The motion passed by unanimous vote.

6.     Approval of the 04/06/10 meeting minutes

Commissioner Henderson made the motion to accept the minutes of 04/06/10 as written. Commissioner Bassett seconded the motion. The motion passed by vote of 4 ayes and 1 abstain with Commissioner Riechel abstaining.

7.     Announcements

There were no announcements.

8.     Old business

None scheduled

9.     New business

Commissioner Riechel said during his appointment as Commissioner at the last Council meeting, Councilor Howison said he would like Commissioner Riechel to continue as a Conservation Committee member. Commissioner Riechel said he will remain on the Conservation Committee and when appropriate, he will recuse himself.

10.            Public hearing

Conditional Use Permit (first hearing)

Chairman Bellemore opened the public hearing at 6:14 p.m. stating that the hearing is for a conditional use permit on property owned by Mr. Greg Atkeson , Map / Tax Lot Number 19-12-27-40-02200. Chairman Bellemore asked the Commissioners if they had any conflict of interest in this matter and all Commissioners stated they had no conflict of interest. Chairman Bellemore asked the Commissioners if they had any bias in this matter and all Commissioners stated they had no bias.

Chairman Bellemore stated that all of the Planning Commissioners went onto the property to look at the structure. Chairman Bellemore said there was no discussion on the matter. Chairman Bellemore said he has been on the property twice. Chairman Bellemore said there was no contact with the property owner at the most recent visit. Chairman Bellemore said on a prior visit, Mr. Skeele attended and informed those present of the property.

Chairman Bellemore opened the meeting for testimony at 6:19 p.m.

Mr. Steve Turner – Attorney for Greg Atkeson – 1498 SE Tech Center Place

Mr. Turner said he just had the chance to briefly review the staff's recommendation. Mr. Turner said the recommendation is that the gazebo is not allowed to remain. Mr. Turner said Mr. Atkeson would be disappointed if the Planning Commission recommends this. Mr. Turner said it would be helpful for Mr. Atkeson if the Commission states the gazebo needs to be removed, that the Commission would need to explain the level of destruction or removal of the gazebo. Mr. Turner said it would also be important to know what the particular reasons are as to why the gazebo cannot remain.

David Bellemore asked if the Commissioners have any questions for Mr. Turner .

Commissioner Bassett said there is a volume to read about this as far as what has been done and what has not been done. Commissioner Bassett asked why the current owner believes this structure should remain.

Mr. Turner said Mr. Atkeson purchased this property with the structures in place. Mr. Turner said Mr. Atkeson was not aware there was an issue with the gazebo. Mr. Turner said Mr. Atkeson likes the gazebo. Mr. Turner said staff previously recommended the gazebo remain because it could cause more harm to remove it than if it were allowed to remain. Mr. Turner said there is no current harm to the environment. Mr. Turner said if there is concern of roof drainage, this could be corrected. Mr. Turner said Mr. Atkeson is an innocent party. Mr. Turner said the prior owners refuse to pay for any of the processing of the permit.

Commissioner Miller said she questions whether Mr. Atkeson will not be able to build a home on his property.

Mr. Turner said there has been no wetland delineation on the home site area. Mr. Turner said the City's current wetland inventory includes the entirety of Mr. Atkeson 's property. Mr. Turner said when he bought the property he was told there was a cleared home site.

Commissioner Miller asked if the gazebo issue is relevant if Mr. Atkeson cannot build his home on the property.

Mr. Turner said the subject is somewhat moot. Mr. Turner said it is true that Mr. Atkeson may never get the opportunity to enjoy the gazebo. Mr. Turner said Mr. Atkeson would like to give the property back to the Skeele's in the original condition as he purchased it.

Chairman Bellemore said he is sympathetic. Chairman Bellemore said the issue with the non-permitted gazebo, the bridges, and the wetlands, all of this existed at the time that Mr. Atkeson purchased the property. Chairman Bellemore said there are disclosure laws.

Mr. Turner said in a perfect world, the seller's of the property would have disclosed all of this information to Mr. Atkeson .

Chairman Bellemore asked if Mr. Turner is aware of disclosure laws in Oregon and Mr. Turner said yes.

Commissioner Bassett said these are areas that do not pertain to the application as far as who is suing whom.

Mr. Turner said he was just trying to respond to the questions and he was not trying to cloud the issues.

Chairman Bellemore excused Mr. Turner stating that Mr. Turner will have a chance to rebut at the end.

Kimberlee Skeele member of T&K Lands – 8854 Collard Loop

Mrs. Skeele provided each Planning Commissioner with documentation on the engineering of the structure and those documents were placed on file.

Mrs. Skeele said she came to witness the hearing. Mrs. Skeele said she appreciates the Commission having this hearing. Mrs. Skeele said they built the bridge at the end of the year in 2005, which was before the current codes had passed. Mrs. Skeele said she came to City Hall and spoke to Jeannie Cerda to inquire if she needed a permit. Mrs. Skeele said she purchased the entire book of ordinances. Mrs. Skeele said she was told by Jeannie Cerda that she did not need a permit for the bridges. Mrs. Skeele said she was told if the bridges do not touch the water and they do not damage the vegetation, they would not need a permit. Mrs. Skeele said they were very conscious of the bank and the Creek. Mrs. Skeele said Peter Howison has said her husband has taken an excavator into the Creek and this is not true. Mrs. Skeele said they have one of the most environmentally friendly excavators made. Mrs. Skeele said the bridges save the bank. Mrs. Skeele pointed out that other properties have structures near the Creek. Mrs. Skeele said she feels like this is selective enforcement. Mrs. Skeele said she is sorry for the gazebo and that it turned out bigger than anticipated. Mrs. Skeele said this was made as a deck for her daughter's wedding. Mrs. Skeele said the wood was milled from the property and they were not onsite the day it was built. Mrs. Skeele said they knew it was not a "building". Mrs. Skeele said they made a mistake but they thought that if something was not a building, it did not need a permit. Mrs. Skeele said she asked that a prior staff report be submitted. Mrs. Skeele said when the first investigation occurred; she, Mr. Skeele , Amy Graham , David Bellemore , and Lisa Ekelund attended. Mrs. Skeele said all of this was done in an effort to be corporative and forthcoming. Mrs. Skeele said she did inform Mr. Atkeson that the permits were not obtained and Mr. Atkeson 's response was that he loved it and if necessary, he would apply for permits after the fact. Mrs. Skeele said she provided everything the City requested during the investigation. Mrs. Skeele said the Department of State Land's (DSL) does not disapprove of the deck. Mrs. Skeele said this is a re-routed Creek. Mrs. Skeele said this was once a farm in the 1920's. Mrs. Skeele said there are still telephone poles out by the water. Mrs. Skeele said that with the construction of the dam and the Creek, there are now a lot more wetlands. Mrs. Skeele said she spoke to DSL today and they have done two wetland delineations. Mrs. Skeele said she provided the documents today because Lisa stated to her on a prior occasion that the application was not complete. Mrs. Skeele said it would be reasonable to grant Mr. Atkeson a variance.

There were no questions from the Commissioners for Mrs. Skeele .

Chairman Bellemore asked if anyone else would like to give testimony on this matter.

Chairman Bellemore asked if Mr. Turner has a rebuttal.

Mr. Turner said he would only like the Commissioners to be as specific as possible if they decide that the gazebo shall be removed.

Chairman Bellemore closed the public hearing at 6:52 p.m.

Commissioner Riechel said he would like the Secretary to give the staff report.

Lisa Ekelund presented her staff report and explained attachment A.

Commissioner Henderson said he went to §155.3.6.300 which talks about riparian matters. Commissioner Henderson said Woahink Creek is determined to be a locally significant riparian corridor because it is fish bearing which puts it into another category. Commissioner Henderson said they have water quality issues. Commissioner Henderson said DEQ, and DHS are also concerned about water quality.

Commissioner Riechel made the motion that they approve the staff report. Commissioner Bassett seconded the motion. The motion passed by unanimous vote.

Chairman Bellemore opened deliberation.

Commissioner Bassett said he spent 3 hours reviewing the application. Commissioner Bassett said on at least six different occasions, everybody said that this was ok. Commissioner Bassett said that they need to figure out how to fix this situation. Commissioner Bassett said they do not want to break the law but the do not want to tear up the property.

Chairman Bellemore said they sit in their positions as Planning Commissioners to enforce the land use laws and codes. Chairman Bellemore said when they use discretion; they need to consider the long-term outcome for the community as a whole.

Lisa Ekelund explained that she has written several staff reports on this subject. Lisa said that she sympathizes with all of the parties involved. Lisa said her recommendation is based solely on the code.

Commissioner Riechel said they have code that clearly defines the conditional uses that are allowed in the riparian area. Commissioner Riechel said the conditional use permit has very little discretion. Commissioner Riechel said it comes down to if there is a great deal of hardship that can be proved, the discretion lies with a variance. Commissioner Riechel said if the gazebo were approved, they would need to place a condition that the structure is to be raised.

Commissioner Miller said she rarely agrees with the comment that something will prevent damage if it is allowed to remain. Commissioner Miller said if it could fit, the gazebo could be moved away from the Creek.

Lisa Ekelund explained that the Creek loops around with an approximate maximum width of 70 feet. Lisa said the gazebo could not be moved back to suit the 50' setback because each side of the Creek has its own 50' setback for a total of 100' in setbacks alone. Lisa said if the gazebo were moved back, it would also be moved more into a wetland.

Commissioner Riechel said there is the possibility of moving it and there is the possibility of removing it.

Commissioner Platt asked how they would take the structure out without harming the area.

Commissioner Miller said it would go out the same way it went in.

Mrs. Skeele explained that the structure was created using 5 strong men and a small tractor.

Commissioner Bassett said if they voted that they could not keep the structure and the applicant applied for a retroactive variance, would it come back to the Commissioners.

Commissioner Platt questioned the condition of raising the structure.

Chairman Bellemore said that the Commission needs to be open-minded. Chairman Bellemore said he came in thinking that it may cause more damage if removed however; he learned tonight that it is not likely a house will ever be there. Chairman Bellemore said this is an accessory building built before the home is built. Chairman Bellemore said because this is an accessory building, if they do not have a schedule for when the primary residence will be built, it is another reason that it is an illegal structure. Chairman Bellemore said because there are only posts in the ground, there should be very little disturbance to remove it. Chairman Bellemore said 5 men could come in and remove it just like how it was installed. Chairman Bellemore said he would lean towards having it removed.

Commissioner Miller said a primary structure has to be built prior to auxiliary structures. Commissioner Miller said she did not see in the application where they intend to place a house or septic.

Commissioner Henderson said it is a gorgeous site. Commissioner Henderson said the precedence lies with them now. Commissioner Henderson said he lives on a property that has a spring. Commissioner Henderson said though his is not a fish-bearing stream, they had to observe the 50' setback and it was not an arguable point for them. Commissioner Henderson said he played by the rules and he expects his neighbors to do the same.

Chairman Bellemore called for a recess at 7:46 p.m.

Chairman Bellemore reconvened the meeting at 7:56 p.m.

Commissioner Riechel moved that by weighing the information for and weighing the information against, the proposal that the application for a conditional use permit by Mr. Greg Atkeson on taxlot 19-12-27-40-02200 be denied. Commissioner Miller seconded the motion. The motion passed by unanimous vote.

City Recorder , Fred Hilden requested a roll call vote.

The vote was as follows:

Commissioner Platt –                   Aye

Commissioner Bassett –              Aye

Commissioner Henderson –        Aye

Commissioner Miller –                Aye

Commissioner Riechel – Aye

Commissioner Riechel made the motion that the Commission rescind his previous motion and the vote and replace it with a recommendation to the City Council. Commissioner Bassett seconded the motion. Commissioner Riechel rescinded this motion. Commissioner Bassett rescinded his second to this motion.

Commissioner Miller made the motion that the applicant be required to remove the gazebo which is in the 50' setback illegally so that the wetlands are not disturbed which is how they created it by using man power and a small equipment. Commissioner Platt seconded the motion.

Commissioner Riechel said any deconstruction of this magnitude requires a permit to be approved by staff.

Commissioner Miller amended her motion to include that the gazebo is to be taken out by manpower and small power equipment and the property owner be required to acquire a demolition permit and waive the fees. Commissioner Platt seconded.

Lisa Ekelund suggested that the motion include that when the property owner applies for a permit, just applying is not enough. Lisa explained that the applicant submit proper drawings that will be approved by the Building Official.

Commissioner Miller amended her motion to require the applicant to remove the gazebo following the usual requirements when applying for the permit. Commissioner Platt seconded. The motion passed by unanimous vote.

Commissioner Bassett unanimously with Commissioner Miller made the motion to accept the staff report as a basis for the findings of fact. Commissioner Henderson seconded. The motion passed by unanimous vote.

11.            Citizen input on unscheduled items not listed on the agenda

Alta Taylor 84955 Hwy 101 S Florence

Mrs. Taylor said her husband and she bought a property, which is known as the Nordahl property. Mrs. Taylor spoke regarding the possible annexation of their property located to the North of Dunes City. Mrs. Taylor asked the Planning Commission to think about an annexation.

Commissioner Bassett said regarding the 2/25/10 minutes, he was appointed as Vice-Chair. Commissioner Bassett said he agreed that as long as Chairman Bellemore is Chair, he would be Vice-Chair. Commissioner Bassett said he does not feel it would be appropriate if he were to be Chair. Commissioner Bassett said he would like to remove himself for consideration as Chairman.

Commissioner Henderson said he would love to see a map of Mrs. Taylor 's property.

Lisa Ekelund invited Commissioner Henderson to review the Taylor file.

12.            Adjournment

There being no further business to come before the Planning Commission, Commissioner Miller made the motion to adjourn the meeting. Commissioner Platt seconded the motion. The motion passed by unanimous vote.

The meeting of the Dunes City Planning Commission adjourned at 8:46 p.m.

The proceedings of the Dunes City Planning Commission meeting were recorded on tape, and are on file at City Hall. Upon approval by the Planning Commission, these minutes will be available online at www.dunescity.com

Approved by the Planning Commission on the 24TH day of JUNE 2010

Signed copy available at Dunes City Hall

David Bellemore , Planning Commission Chairperson

ATTEST:

Signed copy available at Dunes City Hall

Lisa Ekelund , Planning Secretary

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