1985-13595-Minutes for Meeting May 30,1985 Recorded 7/1/1985DESCHUTES COUNTY BOARD OF COMMISSIONERS
MAY 30, 1985 - MONUMENT HEARING MINUTES
VOL 64 PAGE 745
85-13595
Chairman Tuttle called the meeting to order at 7:00 pm. Commis-
sioner Prante and Commissioner Maudlin were also present.
Chairman Tuttle explained that the purpose of the hearing w4 tw
consider an appeal of a Hearings Officer's decision tg.Jpn
CU -85-5, a conditional use permit application to allow cons,52-wt_
ion of a monument in an agricultural zone. The applica�g-�, i.,�
U.S. Citizens for the Future, Inc. Chairman Tuttle then out -1 med-3
the format for the hearing. First would be the staff r ,6
then proponent's testimony, followed by testimony from oppon# s,tr-
then an opportunity for rebuttal for each side, then -afi-P
comments, then questions from the Board. Testimony woul'-be�
limited to 45 minutes for each side.
Chairman Tuttle then called for disclosures by the hearings
body. Commissioner Maudlin stated that he had been approached by
Bob Hollipeter and Hank Court after the Hearings Officer's
decision. He declined to discuss the matter with them or anyone
else at that time, however.
Chairman Tuttle then called for challenges from the audience
regarding the Board holding this hearing. There were none. He
then called for the staff report.
George Read, Planner, stated that the staff report was given at
the original hearing in its entirety. He read through the
written staff report that is in the record. He also described
physical characteristics of the proposed monument. It will be
constructed of concrete blocks that spell out "United States of
America - In God We Trust" that will be readable from the air.
Each stone will be sold for $100 to include an inscription chosen
by the purchaser. The developers plan to sell 27,000 stones
before beginning any work at the site. The basic park is to
include road improvements and access, restrooms and landscaping.
A $1,000,000 maintenance and management fund established out of
the 2.7 million is planned. Mr. Read stated that the March 12,
1985 Burden of Proof statement describes this in detail.
Mr. Read explained that the purpose of the MUA zone as defined by
the ordinance is one reason the Hearings Officer denied this
application. The other criteria in the zoning ordinance is with
regard to private parks, which are allowed as a conditional use.
Parks are not defined in the ordinance. Article Seven of the
Zoning Ordinance establishes the criteria for evaluating parks
and other uses. The staff found that generally these criteria
were met, with the exception of access. The other staff question
was with regard to the performance bond. At the time the Staff
Report was written, nothing was given at that time. He suggested
that part of the trust account could be set aside and earmarked
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for construction and maintenance, with a County sign -off required
on the release of funds. He felt that a bond would be diffi-
cult. He stated that the developers have expressed willingness
to provide the County with the authority to distribute the money
to assure that the monument is constructed.
The conclusion in the original staff report was that more
documentation regarding access was necessary. He stated that
because the developer had expressed approval with the bond
provision, the staff recommended approval with various
conditions.
Mr. Read then discussed the Hearings Officers findings. He
stated that the Hearings Officer found that the monument was a
sign and did not meet the minimum sign standards. He read into
the record the definition of a sign according to the ordinance.
He noted that the appeal findings prepared by the applicant
address the Hearings Officer findings and decision. He noted
that the applicant had also prepared a supplemental burden of
proof statement. He asked for an opportunity to review this and
report in writing.
Myer Avedovech, attorney representing the applicant, at this
time came forward and presented to the Board a supplemental
burden of proof statement that had been prepared after having had
an opportunity to review the transcript. He commented about
George Read's remarks. He remarked that perhaps Mr. Read had not
read his statement correctly. He stated that there is case law
in this state that says that if you have a use that is a cond-
itional use it is not deniable under certain circumstances. He
felt that the Hearings Officer's decision went beyond that scope
of authority according to that case law.
Mr. Avedovech stated that the issue is not profit or loss or
whether or not his client is making a profit or if it is a
non-profit corporation. Performance bonds are usually limited to
a bond on landscape or things of that nature. He did not feel
the Board should address profit or loss issues.
Chairman Tuttle asked if that meant that the applicant has
decided against working out a financial arrangement.
Mr. Avedovech responded that it did not. He wanted to avoid the
focus of this hearing being relating to profit or loss.
Mr. Avedovech stated that neither the Hearings Officer nor the
Planning staff have come to the conclusion that this is other
than a park under the ordinance. They have an access permit
issued by the Deschutes County Public Works Department on March
5, 1985. They submitted this to Public Works, who reviewed
this and said that this access was adequate. He feels that
access is no longer an issue because of this.
MONUMENT HEARING MINUTES: PAGE 2
With regard to the traffic issue, Mr. Avedovech stated thailOkhe 64 PACE 747
only actual testimony as to vehicle traffic per day is that
submitted by the applicant. He said that statements that this is
kind of a rural area and that there are sometimes some slow
moving vehicles cannot be considered as accurate as their
testimony, because concepts and feelings really aren't evidence.
Concerns must be supported by evidence. He stated that the
Public Works Department indicated that the road capacity is
anticipated to be 6000 vehicle trips per day, but the road can
now handle 11,000 vehicle trips per day according to their
statistics. Because of this, he did not feel that this use would
have any impact on the area as far as vehicle traffic problems.
He noted that other driveways currently enter almost directly
across the road from this access. The developers are willing to
reduce one slight mound in the road at their expense. This would
increase sight distance. Mr. Avedovech stated that the develop-
ers cannot afford to have an unsafe access into this property.
Mr. Avedovech felt that access and sight distance are something
better addressed in a site plan review. After this conditional
use process they will then submit the site plan in detail.
Mr. Avedovech stated that this application does not conflict with
with the uses in the MUA zone. He cited Peterson's Rock Garden
and Smith Rocks as other examples of parks located in MUA
zones. The private park they are proposing will not have a high
use or loud noise activity. With regard to case law, he cited
Kuichardson vs. the City of Eugene, which finds that conditional
uses don't have to go through the same need criteria as zone
changes.
He felt that Mike Dugan and his decision to call this a sign
exceeded the definition of a sign according to the sign ordin-
ance. He noted that George Read indicated that it was not a sign
according to the ordinance. Mr. Avedovech stated that they have
no problems with the conditions that were made in the original
staff report. He indicates in his memo submitted at this
hearing that the purpose of a sign is the use that it is intended
to direct attention to. Their signs will be used to direct
people to the monument. However, the monument itself is not a
sign, this is a monument that these people feel will generate an
amount of patriotism and something they would like to see
developed. The monument cannot be seen from the road. He felt
that this clearly does not fall within the definition of the
ordinance.
Mr. Avedovech stated that he did not feel the Hearings Officer's
findings were based on real facts or evidence. He stated that
Mr. Dugan had made no mention of findings or documents based on
testimony at the hearing; concerns and findings raised were not
adequate to base a decision on. Findings must indicate why he
has relied on one set of findings over the other. He stated that
MONUMENT HEARING MINUTES: PAGE 3
VOL 64 PACE 748
the decision was not based on evidence, but was based on concerns
and feelings of some neighbors.
He stated that this would be a very passive park, a quiet use
that should not be of high impact. He felt that they must be
careful to base this decision on hard evidence like the access
permit and not on emotions, feelings and concerns. He reiterated
that this was a private park within the definition of the
ordinance. The fact that people want to build a monument in this
park is of little consequence and will not create an immediate
impact in the area. He thinks the issue of access is taken care
of with the permit received by the Public Works Department. The
other concerns are to be addressed in the site plan process. He
stated that the staff conditions are reasonable and can be met.
He concluded by asking for a reversal of the Hearings Officer's
decision with the conditions set forth in the original staff
report.
Rick Isham asked Mr. Avedovech to explain their timing on going
to the Road Department for the access permit, which was issued
after the Hearings Officer's denial. Mr. Avedovech outlined this
time frame. Mr. Isham said that he thought that perhaps this
permit should have been applied for in conjunction with the site
plan. The access in the permit is where they have proposed in
the site plan.
Howard Robinson, 2575 Windsor Circle East, Eugene, Oregon, came
forward. He is the first supporter of the monument. He purchas-
ed the first stone. He gave his definition of a monument. He
felt that it is a permanent celebration to a person, place, or
thing. He stated that the Washington Monument was bought and
paid for by the taxpayers and that the Oregon Caves monument is a
permanent celebration to the workings of the Lord. He said that
this is a celebration to this great nation that we will live in
by the people in the nation, without interference by the govern-
ment other than telling them yes or no. In that light, he felt
that the wording could not be more perfect than it is. He felt
that they don't understand where the line, "In God We Trust"
comes from. Those words in 1956, by an Act of Congress, were
made the motto of the United States.
Being no further comments in favor of the application, Chairman
Tuttle called for comments in opposition.
Beardsley Graham, 63255 Deschutes Market Road, noted that he is
also a member of the Bend Urban Area Planning Commission, but is
here speaking only for himself. He stated that he is in favor of
a park. He felt that in Central Oregon they are selling the
quality of life. He would find it difficult to turn down a
park that was completed with adequate and safe access. He is not
sure of what a private park is. He questioned what would happen
if the owners decide to abandon it. It is unique in the way it
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is being financed. He doesn't see its location as a problem, but
he does see traffic in the future as a problem. It may turn out
that they need to have frontage roads. They don't know where
the main arterial will be. It has been mentioned that profit and
loss doesn't matter in the hearing except that gives cash flow
which may have something to do with how fast this gets finished.
He is fearful that because of this financial arrangement this may
drag on. He feels that if it is approved it should be approved
with safeguards that it gets finished. If they do not get the
money, he asked who it will revert to if it is placed in a
trust. He felt that a trust fund should be required.
Chairman Tuttle mentioned that in addition to the memo
Mr. Avedovech submitted there have been additional petitions
submitted stamped May 30, by the Community Development Depart-
ment. These will be made part of the record.
Mr. Read stated that there has been a considerable amount of
testimony received since the last hearing. There are petitions
with about 300 signatures in opposition. These will all be made
part of the record.
Chairman Tuttle then called for comments in opposition. Hank
Court, 64222 Deschutes Market Road, Bend, came forward. He
stated that he felt the monument constituted a sign. He felt
that the developers were mainly doing this for the money. He
said he doesn't want it and the neighbors and friends don't want
it. He stated that part of the zoning ordinance says that it is
supposed to maintain and improve the quality of the air and
water. The only way you can read this is from the air. It will
increase air traffic above it. He said that all the people going
by there may contaminate the water from the canal which they
drink from.
Steve Berg, 64628 Deschutes Market Road, lives across the road
from the proposed monument. He referenced Mr. Avedvech's remark
about dealing with fears and concerns. He felt that two main
issues were that of the monument constituting a sign and that of
ingress and egress. He stated that these issues can be backed up
with evidence. He stated that two people use his driveway and
they are familiar with the road hazards that exist. There is no
doubt that it will increase traffic hazards. They have taken
measurements dealing with the vision. There is less than 300
feet of good visibility in either direction. They want a safe
road. They need to focus on where there is safe ingress and
egress. He did not feel it exists at this point in the road. He
submitted photographs of the area showing a view directly south.
He stated that there have been two accidents in less than two
years at the spot where they intend to put the access.
Mr. Berg also felt that this monument was a sign. The sign
ordinance definition does not say that a sign must be visible
MONUMENT HEARING MINUTES: PAGE 5
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from the road to be a sign. He also addressed the issue of the
zoning ordinance as was addressed in the Hearings Officer's
decision. He noted that this was definitely not consistent with
the agricultural uses in the area. He felt that comparing this
to Smith Rocks and Peterson's Rock Garden was absurd in that
neither of these spells anything out in letters. They intend to
see that they have a safe road to drive on. He also felt that
Mike Dugan's decision was made on sound evidence and they urge
the Board to uphold the Hearings Officer's decision and deny the
appeal.
Floyd Herring, developer of Boonesborough subdivision, 64689
Boonesborough Drive, Bend, came forward. He stated that there
are 233 residential lots in Boonesborough subdivision. When
these are completely developed there will be a minimum of 500
cars twice per day going down that road. He stated the numbers
provided by the developers about the amount of traffic on the
road now and what is proposed to be on the road is not very
accurate. Of the 233 lots they have sold 153 with about 90
houses in there now. He is opposed to the monument on the basis
of the traffic increases.
Commissioner Maudlin asked how far north of the area Boones-
borough is. Mr. Herring responded that it is from 3/4 of a mile
to one mile north.
Ray Ingalls, 64510 Deschutes Market Road, Bend, came forward. He
stated that he is opposed to the monument for the same reasons as
the others. He submitted a letter from his wife for the record.
He asked if this is such a good idea, why don't these people
build it on the street that they live on.
Being no further testimony, Chairman Tuttle called for rebuttal
comments, calling first for rebuttal from the applicant.
Mr. Avedovech stated that these concerns were indicated at the
original hearing. First he stated that it is important to
remember that any time they receive a petition it is important to
remember they don't know what was told to the people who may have
signed it. Also, there are petitions in favor as well as
petitions against. He did not feel that the decision should be
swayed by petitions. There is no irrigation ditch through the
property, so they will not affect the water useage. In response
to concerns about safety, he stated that the sight distance is
400 feet. The Public Works Department found that it is safe, or
they would not have issued the permit. He said that Dale Road
only has 250 feet of sight distance. They have less sight
distance than is customarily required. If the monument adds 1000
cars per day, it will still be within the 6000 car limit estab-
lished by the Public Works Department. With regard to future
transportation planning and construction needs, Mr. Avedovech
stated that they have no problem with dedicating whatever land is
MONUMENT HEARING MINUTES: PAGE 6
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VOL 64 PADS ?5'i
necessary within reason for road dedication purposes. With
regard to the sign issue, Mr. Avedovech stated that it is hard
for something to call attention to itself if you can't see it.
A number of the complaints have been that this project is being
built for profit. He responded that this will be a benefit to
the county. He noted that many state parks charge use fees.
He stated that there is nothing wrong with making money. With
regard to the finishing the park, he stated that before any
construction work was started they would sell 27,000 blocks, so
construction will not even begin until they can complete con-
struction. They will work with the staff for whatever securities
or bonding requirements the County feels appropriate. He felt
that they had addressed the concerns of the neighbors as well as
those of the staff. He recommended that they accept the recom-
mendation of the planning department and grant approval.
There were no further rebuttal comments. Chairman Tuttle closed
the hearing to further public testimony. He then called for
questions from the Board.
Commissioner Maudlin mentioned the allusion made to petitions
that were presented at this hearing. He agreed that they never
know what people say when having petitions signed, but in the
file that they received they have a letter favoring the project
with 20 signatures on it, but 18 of them are from LaPine. He
asked about that. Mr. Avedovech responded that whoever circulat-
ed the petition had a lot of friends in LaPine.
Commissioner Prante stated that she took exception to the
statement that this is a benefit to the public. She said that
this can be argued.
Mr. Read asked about the Public Works Department issuing the
access permit. He also noted that there is room for interpretat-
ion of the ordinance as a sign. It leaves it up to them to
interpret the ordinance as they see fit. John Andersen had
determined that it was not a sign but the Board of Commissioners
has the authority to interpret the ordinance as they see fit.
Mr. Isham asked about the Hearings Officer's failure to explain
choice of evidence contained in his decision. He stated this is
a legal issue and what they will have to do is examine the
record, depending on which way the board goes on conflicting
evidence. With respect to the rule on the Purpose and Policy
section of the ordinance, the rule on that is if there is a
question about the interpretation of the ordinance, if there is a
question about whether to interpret the ordinance provision they
can then go to the policy and purposes section. That is the
first time that this issue has been raised. The only other thing
is the Public Works Department issuing the access permit prior to
the approval of this application. He suggested that perhaps the
Public Works is saying that every property is entitled to access
MONUMENT HEARING MINUTES: PAGE 7
be up to the Board. He felt that the Public Works DepartnYi%t
should not issue the permit until the hearing is over. The
permit issued mentioned the Conditional Use permit so that it
must have been issued under the contemplation that this was
approved. He stated that he fails to agree with the contention
that the Hearings Officer did not give reasons. In reading the
findings of fact, that must be substantiated by fact. He doesn't
say that "the residents feel", and that "there are some con-
cerns". To permit a park is tantamount to changing the character
of this area. He felt that this was findings of fact.
Chairman Tuttle asked about how Mr. Isham will advise them on the
issues raised tonight and the purpose issue raised in opposi-
tion. He felt that this should be discussed prior to making the
decision. It would give the Board the opportunity to look at
the record in light of that issue. Mr. Isham agreed to respond
to these issues by next week.
Chairman Tuttle then closed the public hearing and set the
Board's decision for June 5 at 9:00 AM.
Being no further business, the meeting was adjoured.
DESCHUTES COUNTY BOARD OF COMMISSIONERS
LAUR CE A. TUTTLE, CH R
LOIS BRISTOW PRANTE COMMISSIONER
Y
e G�
DICK UD N, COMMISSIONER
:ss
MONUMENT HEARING MINUTES: PAGE 8
64 ; ACE 752
