Code changes fail due to fencing rule

The second reading and adoption of an ordinance to amend the Rural Land Development Code of Josephine County was held Wednesday, Nov. 16 at Anne G. Basker Auditorium by the JoCo Board of Commissioners, which failed to approve the ordinance. The first reading was held Nov. 9, and the board hopes to see changes made that would enable them to pass it early next year.
A notable facet of the ordinance is the extension of deadlines for developers to complete construction on approved subdivisions. Currently, the deadline is two years after approval, with the opportunity to prolong to four; when the changes take effect, it will be six years with the option to prolong to ten.
Deputy Community Development Director James Black, addressing the board via Zoom, commented, “Some developers out there wanted a little more time during this economic period we’re in right now. They needed more time to get some of these bigger projects through.”
It was noted during the first hearing that 10 years is the maximum amount of time state law allows for tentative housing plans to be executed. Josephine would become one of the few counties in the region to push the deadline further than five years.
A brief recap of other text amendments that Ordinance 2022-010 will make to the Rural Land Development Code:
-Remand hearings: Adds, “If the remand hearing will involve the introduction of new evidence, any person may raise new issues which relate to the new evidence, arguments, testimony or criteria for decision-making which apply to the matter at issue.”
Previously, only persons or organizations that were parties to the higher appeal were granted this ability, and that will still be the case if no new evidence is introduced from the higher appeal.
-Permitted uses: Changes definition of family daycare dwellings from less than 13 children to less than 16.
-Fences, walls and screens: Adds, “Sight-obscuring fences or walls may be placed in front yards provided such fences or walls do not exceed three and one-half feet in height.”
Black clarified, as he did during the first hearing, that the three and one-half foot rule used to be included in the Rural Land Development Code but “dropped off” somehow when the Josephine County Code was compiled in 2019. The Community Development department wanted to reattach the language in this ordinance.
Commissioner Dan DeYoung asked if there would be an exemption for agricultural properties, as “a three and a half foot fence isn’t gonna keep a herd of cows in down on Lower River Rd.”

Black stressed that the restriction applies only to sight-obscuring fences, and since most farms use see-through wire fences they would not be in violation of the code.

Victor Zaitsev of Grants Pass spoke in opposition to the fencing rule during public comments.

“I feel this is another example of government overreach,” Zaitsev said. “The logic employed in the argument to justify this code change is flawed, making it an unreasonable constraint on the free use of one’s property.”

Zaitsev opined that “heart tugging and political correctness” were used to justify the fencing rule.

While it is true that Commissioner DeYoung asked if ADA considerations drove the rule at the first hearing, the primary reason given by Black for settling on 42 inches was so that drivers can safely enter and exit properties without their view obstructed by fencing.

Zaitsev also took issue with the fact that what constitutes the front of one’s property may be open to interpretation, which Black admitted at the first hearing can pose an issue for code enforcement personnel.

“This is an overly vague description that needs to be clearly defined,” remarked Zaitsev. He hammered home his view that there are many things that could impede a driver’s view when turning onto or off a property, and that it is not within the government’s power to prohibit all of them.

“Step back and take another hard look at this code change before approving it,” advised Zaitsev. “We don’t need any more inconsistencies on the books.”

DeYoung was sympathetic to Zaitsev’s perspective that the fence rule could unjustly limit a property owner’s freedom and may not be sensible in some scenarios. The commissioner added he was open to “pumping the brakes” on the ordinance.

“There’s one thing that you gotta understand: Every instance in Josephine County is not going to be addressed by one code. It just cannot happen. I think that gives it a little leeway for interpretation by code enforcement and whatnot, and I think if we could guarantee that common sense would kick in once in a while, then everything would probably be okay. But we can’t guarantee that.”

Commissioner Darin Fowler agreed with parts of DeYoung’s remarks, saying, “Every code’s not gonna fit every property, and I think the director has some discretion there.”

However, Fowler said he was satisfied with the ordinance as-is, and that the homebuilders’ association had no concerns when he talked to them.

As the tie-breaking vote, Board Chair Herman Baertschiger stated, “Ever since we had the first reading, I’ve always sort of scratched my head on the fence stuff because it sounds like the fence portion of this is written for an urban area that has a 6,000 square-foot lot and has a sidewalk in front and a street frontage, and this is rural Josephine County.”

He concluded he’d like to send the ordinance back to the Planning Commission to take another look at that language.

When it became clear that the ordinance did not have the votes to pass, there was some confusion as to what would happen to the ordinance and how long before an amended version could come before the board.

DeYoung made it clear he wanted the ordinance back “ASAP” so that the housing deadline portion could go into effect.

Fowler made a motion to approve 2022-010 but the motion died as neither of his colleagues seconded it.

Black clarified that the Planning Commission will not be meeting until January, so it will be well over a month before the ordinance comes back before the commissioners.

The Josephine County Board of Commissioners will not convene today, as several members are traveling for Thanksgiving.