Law Suit against Marion County, Oregon

Part VI of VII

 

 

CONDITIONAL USE PERMIT (CUP) MEDICAL HARDSHIP FOR A DWELLING DISCRIMINATORY PRACTICES, POLICIES, PROCEDURES, CODES AND APPLICATIONS OF MARION COUNTY

 

      In order for Marion County policies, practices, procedures, Codes and Applications of CUP Medical Hardship program, they must either prevent severely disabled person(s) from participating in a program or service offered by a county, receiving federal money and or a code, forces a person(s) to terminate their Conditional Use Permit (CUP) Medical Hardship for a dwelling, in order to obey a code which wasn’t present in 1990 when my grandparents applied for the original CUP, when the county didn’t regulate who can be care givers particular zoning areas of a Marion County.

 

      In order to be affected, you would have to of been excluded from a program or  service, because family members, that may have allowed a dwelling on their farm, but could not care for you, not being able to have non related care givers, were not able to participate in the PUC Program.

 

     You would have had to request the accommodation and then be denied, while there must be intentional and deliberate intent not to investigate, to see if the requested accommodation would change the PUC Program, or in my case, losing two care givers in my absence from the dwelling, while I was being treated and undergoing two operations in a period of six months, with lengthy stays at the VA Medical Center Regional Spinal Cord injury Unit, 1,200 miles from my home in Marion County EFU zoning area of Jefferson, Oregon.

 

     It’s the lack of policies and practices of Marion County in regards to the ADA that allows a Code Enforcement Officer to conduct the business of the county in a manner, not supported by procedural law, that allows for notifying a Conditional Use Medical Hardship for dwelling recipients that a physical inspection of the dwelling is requested, as part of an investigation into whether the residents in my absence were care givers or renters or the ADA that calls for special treatment of severely disabled

persons.

 

      Not treating me as a separate resident, failure to notify me that the farm had code Violations that grew to threats of $2,500.00 a day and forcing the eviction of my care Givers, Medling in areas the county has no business being involved in, clearly illustrates I was not dealt with improperly by Marion County’s representative.

 

      My Law Suit I believe will result in changing practices and policies of Marion County and once this happens.

 

      I WAS AND STILL AM THE PRIORITY AS A SEVERELY DISABLED PERSON benefiting from a conditional use medical hardship for my dwelling.

 

Conditional Use Medical Hardship for dwelling STATUTORY FRAMEWORK

 

      One of the residences shall be removed from the property within 90 days of the date the person(s) with the hardship or the care provider no longer reside on the property and those providing the needed assistance shall be related by blood, marriage or legal guardianship and reside in another residence on the property is in contrast to: ORS Chapter 215, 2017 ORS § 215.213(1)(i), 2017 ORS § 215.283(2)(L) and OAR Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses (660-033-0130) and or:

 

      2017 ORS § 215.213(1)(i) (ORS § 197.660 references 215.213) and 2017 ORS § 215.283(2)(L) or OAR 660-033-0130 summarized as follows:

 

      Chapter 215 - County Planning; Zoning; Housing Codes - 2017 EDITION

https://www.oregonlegislature.gov/bills_laws/ors/ors215.html

 

       2017 ORS § 215.213(1)(i). Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993; rules

 

Subsection (i) One manufactured dwelling or recreational vehicle, or the temporary residential use of an existing building, in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative of the resident. Within three months of the end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demolished or, in the case of an existing building, the building shall be removed, demolished or returned to an allowed nonresidential use. The governing body or its designee shall provide for periodic review of the hardship claimed under this paragraph. A temporary residence approved under this paragraph is not eligible for replacement.

 

Subsection (L) Residential homes as defined in ORS 197.660, in existing dwellings.

 

Subsection (t) Room and board arrangements for a maximum of five unrelated persons in existing residences.  

https://www.oregonlegislature.gov/bills_laws/ors/ors215.html

 

The State’s Exclusive Farm Use Zones (EFU) codified 2017 ORS §

 

215.283(2)(L). Uses permitted in exclusive farm use zones in nonmarginal Lands counties; rules

 

Subsection (L) One manufactured dwelling or recreational vehicle, or the temporary residential use of an existing building, in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative of the resident. Within three months of the end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demolished or, in the case of an existing building, the building shall be removed, demolished or returned to an allowed nonresidential use. The governing body or its designee shall provide for periodic review of the hardship claimed under this paragraph. A temporary residence approved under this paragraph is not eligible for replacement under subsection (1)(p) of this section.

 

Subsection D (o) Residential homes as defined in ORS 197.660, in existing dwellings. https://www.oregonlaws.org/ors/197.660

 

Subsection (u) Room and board arrangements for a maximum of five unrelated persons in existing residences (Chapter 50, Appendix 2).   

 

       ORS Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses (660-033-0130)

 

(10) A manufactured dwelling, or recreational vehicle, or the temporary residential use of an existing building allowed under this provision is a temporary use for the term of the hardship suffered by the existing resident or relative as defined in ORS chapter 215. The manufactured dwelling shall use the same subsurface sewage disposal system used by the existing dwelling, if that disposal system is adequate to accommodate the additional dwelling. If the manufactured home will use a public sanitary sewer system, such condition will not be required. Governing bodies shall review the permit authorizing such manufactured homes every two years. Within three months of the end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demolished or, in the case of an existing building, the building shall be removed, demolished or returned to an allowed nonresidential use. A temporary residence approved under this section is not eligible for replacement under ORS 215.213(1)(q) or 215.283(1)(p).

 

Oregon Department of Environmental Quality review and removal requirements also apply. As used in this section "hardship" means a medical hardship or hardship for the care of an aged or infirm person or persons.

 

      If you review all the laws relating to Conditional Use Hardship temporary dwellings, you will see ORS’s are consistent, yet MCC Section 17.120.040 E is missing from 2017 ORS § 215.213(1)(i) (ORS § 197.660references 215.213) and 2017 ORS § 215.283(2)(L) or ORS 660-033-0130. 90 days rule of terminating a Conditional Use Medical Hardship dwelling from a property, while is clear to me, Marion County, should not be in the business to choose who will be a care giver in certain areas of a county, in contrast to the Physicians Certificate in addition to ORS’s.

 

       2017 ORS § 215.213(1)(i) and 2017 ORS § 215.283(2)(L) and ORS 660-033-0130 should be revised.

 

       Suggested Revision of 2017 ORS § 215.213(1)(i) (ORS § 197.660 references 215.213) and 2017 ORS § 215.283(2)(L) or ORS 660-033-0130 laws summarized following this suggested revision reflect a language that clarifies the intent of ORS’s created for severely disabled to live next to family members, taking into consideration that family members age and may not be available to serve as care givers.

 

       One manufactured dwelling or recreational vehicle, or the temporary residential use of an existing building, in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative of the resident. A doctor of medicine or licensed psychologist shall sign a statement indicating the physical or mental condition that prevents the person(s) with the hardship from providing the basic self-care needed to live on a separate lot. The statement shall also attest that the physician or licensed psychologist is convinced the person(s) with the hardship must be provided the care so frequently or in such a manner that the caretaker must reside on the same premises. Room and board and or rent arrangements for a maximum of five unrelated persons in existing Conditional Use Hardship residences, serving as roommates and or care givers is allowed in all areas of counties of “The Willamette Valley”. Credit to the severely disabled for rent of care givers for a portion of in home care labor under domestic hiring laws is also allowed.

 

       This is necessary because Marion County in particular, while several other Oregon Counties have created its own laws, policies and practices of discrimination against severely disabled, making it impossible first, to obey several counties Codes, if you need non related care givers if you live in a zone of EFU, SA, FT or TC zones and if you live in zones other than these, like the a 2.37 acre parcel in an AR (Acreage Residential) zone located at 5101 Hill Top Lane SE, Turner. (T9S; R2W; Section 29A; tax lot 800), where care givers can be non-related and occupancy of the hardship mobile home or recreational vehicle is not limited to the term of the hardship suffered by the existing resident or a relative as defined in 2017

 

ORS § 215.213(1)(i) (ORS § 197.660 references 215.213) and 2017 ORS § 215.283(2)(L) or ORS 660-033-0130.

 

       As used in ORS 197.660 (Definitions) to 197.670 (Zoning requirements and prohibitions for residential homes and residential facilities)215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993)215.263 (Land divisions in exclusive farm use zones)215.283 

(Uses permitted in exclusive farm use zones in nonmarginal lands counties),  215.284 (Dwelling not in conjunction with farm use) and 443.422 (Siting of licensed residential facilities)https://www.oregonlaws.org/ors/197.660

 

The ADA and Rehabilitation Act

 

       “The ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1)&(2). Updike v. Multnomah Cnty., Corp., 870 F.3d 939, 949 (9th Cir. 2017). Title II of the ADA provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To prove that a public program or service violated Title II of the ADA, a plaintiff must show that: "(1) he is a ‘qualified individual with a disability’;

 

(2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh'g en banc (Oct. 11, 2001).

 

           Marion County is non-compliance of ORS’s and OAR and discriminated against me, a severely disabled person, disabled veteran, requiring non related care givers in absence of blood relation, family members and or spouses, violating ORS’s, OAR, Title II of the ADA and § 504 of the Rehabilitation Act. Discrimination against severely disabled person(s) by a public entity must have three essential provisions:

 

1 ADA

 

Excluded from participating in or denied the benefits of a program's services or otherwise discriminated against.

 

Intentional discrimination, “deliberate indifference,” which requires “both knowledge that a harm to a federally protected right is substantially likely;

 

“Both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that ... likelihood.”

 

2. Section 504 mandate is the same. To prove that a public program or service violated Title II of the ADA or Section 504, a plaintiff must show that:

 

"(1) he is a ‘qualified individual with a disability’;

 

  (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and

 

   (3) such exclusion, denial of benefits, or discrimination was by reason of his disability."

 

      ORS’s, OAR and MCC states up to five room and board agreements are authorized in EFU Zones. Due to the complexity and severity of an ongoing disability over time, that may end in the need of hospices in home care; the creation of discriminatory policies, practices and procedures, through in house non awareness of Codes and or Applications, intentional and deliberate discriminatory actions, affecting severely disabled veteran and or both, after an owner of the  property’s Conditional Use Medical Hardship for Dwelling application is approved, abruptly being forced to re locate and surrender the hardship permit, as a result of no longer being able to have non related care givers, is, in view of five room and board agreements allowed, discriminatory.

 

     In bringing to light discriminatory policies and practices, by exposing CUP or Temporary Medical Hardship for Dwelling Codes or Applications and or both, of Marion County, that are discriminative, in violation of ADA and Section 504 of the Rehabilitation Act, or non-compliant with ORS’s and OAR, it is hoped that Conditional Use Medical Hardship for a Dwelling program rules comply with said same and us in the Marion County program regain their civil and human rights. 

 

     Discriminatory policies and practices, either as a result of discriminatory policies and practices of a county enforcement or planning department’s decision to create provisions in contrast to their own code as in the case of Marion County’s CUP Medical Hardship for Dwelling Application, not allowing non related care givers to care for severely disabled person(s) in particular zones or other county codes that are the same or that includes an entire county, must be more consistent with obeying statutes and laws of Oregon and the United States. 

                                                                                                

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

 

DATED this 4, day of October 2018.

 

 

Bruce Wayne Henion                                                      Jose Heberto Gutierrez Castro

Employer and Client                                                        Care Manger and Care Giver

 

 

 

Noe Hernandez Sarmiento  

Care Giver

 

 

Case Books

 

Description: Front Cover

 

WHAT I LEARNED TO WRITE AND FILE A COMPLAINT AGAINST MARION COUNTY IN THE UNITED STATES DISTRICT COURT, DISTRICT OF OREGON, PORTLAND AND EUGENE DIVISION, RESULTING IN A MOTION FOR APPOINTMENT OF PRO BONO COUNSEL

 

Book - ISBN:

TBA

EBook - ISBN:

978-1-329-54596-0

 

 

Description: Image

 

ARE OREGON COUNTIES CONDITIONAL USE (CUP) MEDICAL HARDSHIP CODES AND APPLICATIONS FOR DWELLINGS IN COMPLIANCE WITH OREGON STATE STATUES AND REGULATIONS, TITLE II OF THE AMERICAN DISABILITY ACT AND § 504 OF THE REHABILITATION ACT; OREGON AND OREGON COUNTIES HISTORY (Cities and Towns) AND THE 79TH OREGON LEGISLATIVE ASSEMBLY

 – ACT – Vol. I of IV - Statuary Framework, Appendix 1 to 14

 

 

Book - ISBN:

TBA

EBook - ISBN:

978-0-359-1886-4

 

 

Description: Front Cover

ARE OREGON COUNTIES CONDITIONAL USE (CUP) MEDICAL HARDSHIP CODES AND APPLICATIONS FOR DWELLINGS IN COMPLIANCE WITH OREGON STATE STATUES AND REGULATIONS, TITLE II OF THE AMERICAN DISABILITY ACT AND § 504 OF THE REHABILITATION ACT; OREGON AND OREGON COUNTIES HISTORY (Cities and Towns) AND THE 79TH OREGON LEGISLATIVE ASSEMBLY

 – ACT – Vol. II of IV - - CUP Medical Hardship Baker to Polk Counties Codes

 

Book - ISBN:

TBA

EBook - ISBN:

978-0-359-01888-8

 

 

Description: Front Cover

ARE OREGON COUNTIES CONDITIONAL USE (CUP) MEDICAL HARDSHIP CODES AND APPLICATIONS FOR DWELLINGS IN COMPLIANCE WITH OREGON STATE STATUES AND REGULATIONS, TITLE II OF THE AMERICAN DISABILITY ACT AND § 504 OF THE REHABILITATION ACT; OREGON AND OREGON COUNTIES HISTORY (Cities and Towns) AND THE 79TH OREGON LEGISLATIVE ASSEMBLY

 – Vol. III of IV - CUP Medical Hardship Baker to Polk Counties Applications

 

 

 

 

Book - ISBN:

TBA

EBook - ISBN:

978-0-359-04016-2

 

 

 

 

 

 

 

Description: http://www.lulu.com/author/display_thumbnail.php?fCID=23290618&fForceRefresh=1&fSize=detail_&1535048983 
ARE OREGON COUNTIES CONDITIONAL USE (CUP) MEDICAL HARDSHIP CODES AND APPLICATIONS FOR DWELLINGS IN COMPLIANCE WITH OREGON STATE STATUES AND REGULATIONS, TITLE II OF THE AMERICAN DISABILITY ACT AND § 504 OF THE REHABILITATION ACT; OREGON AND OREGON COUNTIES HISTORY (Cities and Towns) AND THE 79TH OREGON LEGISLATIVE ASSEMBLY

 – Vol. IV of IV - CUP Medical Hardship Sherman to Yamhill Counties Applications, Oregon and Oregon Counties History and The 79th Oregon Legislative

 

Book - ISBN:

TBA

EBook - ISBN:

978-0-359-04410-8

Description: C:\Users\Dell\Desktop\Vol I Front Cover Oregon Counties.jpg

BRUCE WAYNE HENION, Plaintiff, v. MARION COUNTY and LAURA PEKAREK, in her official capacity as Code Enforcement Officer of Marion County Sheriff’s Office, Defendants; Case No. 6:16-cv-01918-AA; for  Discriminatory Practices, Policies, Codes or Applications of Oregon Counties Conditional Use Medical Hardship for a dwelling in contrast to ORS’s, Title II of the ADA and § 504 of the Rehabilitation Act Book Vol. I of II

Description: C:\Users\Dell\Desktop\Vol II Front Cover Oregon Counties.jpg

BRUCE WAYNE HENION, Plaintiff, v. MARION COUNTY and LAURA PEKAREK, in her official capacity as Code Enforcement Officer of Marion County Sheriff’s Office, Defendants; Case No. 6:16-cv-01918-AA; for  Discriminatory Practices, Policies, Codes or Applications of Oregon Counties Conditional Use Medical Hardship for a dwelling in contrast to ORS’s, Title II of the ADA and § 504 of the Rehabilitation Act Book Vol. II of II

 

 

 

 

 

 

 

Law Suit against Marion County, Oregon

Part VI of VII

 USS CORAL SEA (CV 43)