1985-13582-Minutes for Meeting May 08,1985 Recorded 7/1/198585-13582
VOL 64 pAuF 693
05 JUL -I Pit 3= 2 3
DESCHUTES COUNTY BOARD OF COMMISSIONERS MARY SUE P NHOLLO
CONTINUATION OF PUBLIC HEARING ON THE APPEAL CXLM OL"KINGS
OFFICER'S DECISION ON FILE NUMBER TP84-664-EAGLE CREST
MAY 8, 1985
Chairman Tuttle, Commissioner Prante, and Commissioner Maudlin
were present; Legal Counsel, Rick Isham was absent.
Chairman Tuttle gave a brief overview of the proceedings and
opened the continuation of the Public Hearing at 10:00 a.m.
George Read, Associate Planner, Deschutes County
Mr. Read explained to the Board that this was a request for an
application for a tentative plan for a subdivision to create 215
lots in several zones. The proposed subdivision is part of the
Eagle Crest Development, the destination resort which was
approved by Deschutes County as part of applications for Condi-
tional Use 81-144. The proposed lots would consist of 75 lots
for non-residential purposes including open space, golf course
facilities and roads, 125 single family residential lots and 15
lots for townhouses. There are numerous findings which must be
made in order for a subdivision of this type to be approved and
these are specified in the staff report. Approval of CU81-144
approved the destination resort and contains a considerable
amount of information which pertains to this request. The staff
has included this along with the remainder of the file for the
Board's review. The applicant has applied for various modifica-
tions of conditions and extensions of time limits since the
original decision on March 29, 1982. The applicant is requesting
at this time a modification of conditions that will allow them to
set dates and time lines requirements in sequence - starting with
this approval. Mr. Read pointed out that they did not get the
resort started at the time they had anticipated. It appears that
the modification of conditions is necessary to re-establish the
timeframe and without the modification of conditions the staff
felt that the application would have problems proceeding.
According to Mr. Read, it is the opinion of Legal Counsel, Rick
Isham that modification of conditions can change certain provi-
sions within an approval where it can be shown where there
would be no significant alterations which will have an impact on
the surrounding property owners or the character of the develop-
ment. The modifications that have been filed have not yet been
approved. Mr. Read is holding those modifications pending this
appeal. The Hearings Officer's approval of the tentative plan
required as a condition of approval, that a modification of
condition regarding the time line and specifying the amount of
open space, which seemed to be in question, be resolved.
Mr. Read stated that this site will be served by a community
water system with water from existing wells and by a sewer system
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VOL 64 FAGS 694
which will initially consist of community septic tanks and drain
fields, and eventually a sewer plant. Operation and maintenance
will be under the control of a private maintenance company run by
the Owner's Association of the subdivision.
Mr. Read stated that Section 2.020 of the Deschutes County
Subdivision Ordinance establishes the minimum standards for
subdivisions and the standards of approval for subdivisions. It
appears that the applicant's burden of proof statement previously
filed for the destination resort seems to address the comprehen-
sive plan. The plan approved as part of the conditional use
appears to commit the County to the proposed development if the
standards meet the intent of the ordinances in the comprehensive
plan, which are being reviewed.
Mr. Read stated that Section 4.040 of th Deschutes County
Subdivision Ordinance requires bonds subject to the approval of
Deschutes County Legal Counsel. It appears that there was a
question brought up and may still exist in conformance of the
section of the subdivision ordinance regarding these bonds which
states, "no building permits shall be issued for any lot of a
private subdivision until the improvements are completed and
accepted by the County unless this provision is waived by the
Hearings Body because of the character of the subdivision." The
applicant had originally requested this alteration in order to
allow construction of some of the multi -family units within the
subdivision prior to completion of all facilities. The staff has
no problem with this.
Mr. Read stated that Section 6.080 of the Deschutes County
Subdivision Ordinance requires a parks dedication for subdivi-
sions outside of urban areas. The Hearings Officer found that an
easement should be required along the Deschutes River and
requires a ten foot easement be dedicated to Deschutes County for
public use. There are numerous conditions and reasons for this
in the report. The appeal, which has been filed, is based upon
four reasons:
i) The Hearings Officer erred in approving the subdivi-
sion. The subdivision can only be approved in confor-
mance with the approved conditional use permit for the
destination resort. Mrs. Dean's property was not
included in the subdivision development proposal,
although it was a part of the original conditional
use. The subdivision approval was therefore not
consistent with the approved conditional use of the
destination resort and therefore, must be denied.
The subject parcel consists of 18 acres which repre-
sents about four pecent of the development. original-
ly, two fourplex condominiums, a restaurant, and some
tennis courts were proposed on this particular parcel.
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!VOL 64 PAU,F695
Nothing in the prior approvals of the County or the
subdivision ordinance requires this lot to be part of
the subdivision. The remainder are created for the
purposes of clarificaiton of ownership at a later date
as part of the time share units, for separating the
roads, and mainly for the applicant's purposes. The
County would not require the rest of the parcel to be
subdivided other than the single family residential
lots.
The applicant was a part to the conditional use permit
for the original destination resort. The staff
position has been that the subject 18 acre parcel is
still part of the development and until an application
is received to change that we are considering that as
part of the development, and since it was not required
in any ordinance to be subdivided, we did not feel that
any change was necessary at this time on that parcel.
2) The Hearings Officer erred in failing to provide access
Mrs. Dean's property. The County Land Use Ordinance
states that we require provision of access to adjoining
properties wherever property is to be subdivided. The
Hearings Officer failed to provide such access.
Nothing contained in the subdivision ordinance requires
provision of access to neighboring areas. This is not
a requirement found anywhere or sited in the appeal.
The approval of the conditional use for the destination
resort specifies that private roads will be provided
and includes reference to such things as "key card
gates" to keep out the public - this has lead to
additional difficulties in acquiring access.
3) The Hearings Officer erred in failing to provide an
easement to Mrs. Dean's property for the prupose of
repairs and maintenance of wells and drain fields etc.
Again, there is nothing specified in the subdivision
ordinance which requires this.
4) The Hearings Officer erred in allowing the modification
of conditional use and no public notice of the de-
veloper's intent to modify was given. No consideration
was given to Mrs. Dean's property in modifying the
conditional use and the attempted modification of the
conditional use is a violation of procedural due
process.
As Mr. Read earlier stated, nothing had been done with
regard to modification of conditions. The modification
of conditions specifically relates to the amount of
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' VOL 64 PAcF 696
open space within the development and the time table
completion of certain elements in the plan.
The staff agrees with the findings of the Hearings Officer.
The Hearings Officer found that he was without any authority to
establish easements as part of the subdivision process. He
particulary address the fact that there are other legal avenues
open to the applicant which he felt satisfied the problem and
that the land use process was not the arena for this problem to
be resolved. Mr. Read stated that this was in agreement with
Legal Counsel, Rick Isham, as well.
Commissioner Prante stated that Greta Dean had sent a letter to
her home regarding this issue and she brought it to the Board for
review. (Letter entered into the record).
Paul Speck, Attorney at Law, Representing Greta Dean
Mr. Speck stated that Mrs. Dean has an interest in the 18 acre
parcel which was part of the original conditional use and which
is felt, at present, effectively being removed from the project.
Mr. Speck stated that he is here today to specifically address
the issue of access. He provided a brief history:
Mr. Don Fisher and Mrs. Greta Fisher (Dean) purchased the
property in question in Novmeber of 1978. It is a matter of
record that at the time the property was purchased there was a
question of access. Mr. and Mrs. Fisher were approached in 1981
by the Eagle Crest Developers for the purpose of selling their
property. They agreed to sell their property for $200,000 in
1982, and an option agreement was entered into. The agreement
provided the developers to pay Mr. and Mrs. Fisher $200,000 for
the property. The agreement also stated that Mr. and Mrs. Fisher
were to cooperate with the developers in securing the necessary
zone changes, conditional use request, etc. Mr. and Mrs. Fisher
did so cooperate. In 1984, after an extension of that option
agreement the developers decided they did not want to renew it
any further.
Mr. Speck stated that it is our position that the developers
realized that the Fishers were experiencing financial difficul-
ties and they saw another method whereby they could acquire the
property - from First Interstate Bank who sold the property to
the Fishers and commenced foreclosure proceedings when the
Fishers got behind on payments. Those foreclosure proceedings
are pending and have not been resolved due to a pending bank-
ruptcy proceeding Mr. Fisher is involved with.
Mr. Speck stated that after the options and a price agreed to the
developers had decided they didn't want to pay that amount of
money. The developers submitted an affidavit to the Bankruptcy
Court which said, "we don't have any intent of using that
4
r VOL 64 PAGE 697
property in our project." (Copy of Affidavit entered into the
record).
Mr. Speck noted that the developers told the Fishers that they
were not going to provide any type of access to the property.
At this point in time, Greta Dean needs to do what is necessary
to secure access to her property and to use all available legal
methods in doing so. Mr. Speck stated that he advised Mrs. Dean
that she has a right of access through the land use process. He
also advised Mrs. Dean that there are four methods whereby she
can acquire access, 1) agreement, 2) through the Courts by
establishing a proscriptive easement, 3) way of necessity, and
4) land use process. Mr. Speck stated that it is their conten-
tion to use the land use process as a means of acquiring access.
Mr. Speck stated that he has written for the Board's review,
initially for Mr. Dugan's review, several documents and letters.
The first document is one that was submitted at the initial
hearing and explains why he believes the County ordinances and
subdivision ordinances require for the provision of access. He
stated that there is nothing in those ordinances which speci-
fically states that you have to provide access. However, the
whole intent of those ordinances indicates that access is a
central issue anytime you have either a conditional use request
or a subdvision request. Mr. Speck stated the the developer, in
this case is saying that there may be an access problem, but the
best thing to do is ignore it. Our position is please don't
ignore it because it is going to cause problems.
Mr. Speck entered into the record a letter dated February 27,
1985 to Mr. Dugan in response to his refusal to allow a rebuttal
argument and a letter dated March 1, 1985.
Mr. Speck stated that Mrs. Dean was an applicant in the condi-
tional use; therefore, it was not necessary for the Hearings
Officer at the time of the Hearing to consider the condition of
access to her property. The zoning ordinance requires the
Hearings Office in any conditional use application to consider
access to neighboring properties. What has happened now is that
the developer says, we have another way to get your land, first
we are going to say we don't neet it, then we are going to take
it out of the project and now allow you access. This effectively
removes her right to have the access issued considered. She has
a procedural right to have that question determined before the
subdivision is approved.
Chairman Tuttle requested Mr. Speck to provide him with the date
he believed the appealant ceased having an interest in the
conditional use.
Mr. Speck stated that the date on which Mrs. Dean is being forced
not to have an interest in the conditional use is the date of
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VOL 64 PACE 670
Mr. Lyche's affidavit - the Subdivision Hearing on February 26,
1985.
Mr. Speck stated that the original conditional use signed by Myer
Avedovich, March 29, 1982 states, "the master plan as submitted
and represented in applicant's Exhibit No. 13 is the controlling
document for this development of this destination resort. Any
significant changes from Exhibit 13 will require an amendment of
the master plan." Mr. Speck stated that Exhibit 13 shows
Mrs. Dean's property as being a part of the project. It is their
position, contrary to the developer' and staff's position, that
removing it does constitute a significant change. The reason it
constitutes a significant change is, 1) it is a large parcel, and
2) it contains a significant portion of river frontage, and 3)
the original master plan shows this location for tennis courts,
restaurants, etc. Their position is that these are just general
concepts - can be moved around. Mr. Speck stated that he is
using this position for the purpose of at least getting them the
right to have their issue of access heard.
Mr. Speck stated that they are requesting access to the 18 acre
parcel and to the property which contains Mrs. Dean's well and
drain field. Mr. Speck submitted two photographs which indicate
historical access to the property for the purpose of showing that
there has been access to the property and to the well, etc. He
stated that it is their position that under the subdivision
ordinance those accesses have to be shown on the tentative plan
and they are not.
Mr. Speck stated that in regard to the issue of modification of
conditional use, the County has a problem. The zoning ordinance
doesn't provide for access anywhere. The staff's position is
that they can do these basically in-house. Mr. Speck stated that
he disagrees with that. Anytime you have a significant change in
the land use application the change must be done only after
notice and an opportunity for a hearing. It appears that this is
hat they are considering in this case - I called Mr. Dugan and
asked what he meant when he signed his findings of fact.
Mr. Dugan replied that they just have to be modified. Mr. Speck
stated that if you are going to recognize that the conditional
use does in fact have to be modified, then really shouldn't that
process occur before the subdivision approval occurs.
Mr. Speck introduced the original offering prospectus for Eagle
Crest Partners Ltd. Mr. Speck introduced an offering memorandum
which was published as required under the Oregon Securities Law.
The representation made in that document which expired January,
1984, states that this property is included in the development;
it specifically even states what the purchase price is.
Mr. Speck stated that it is their suspicion that this property is
still being represented to investors as being part of the
project.
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64 PACT 699
Commissioner Maudlin asked Mr. Speck it is was his contention
that if there was significant changes to the modifications that
they should be changed by a new hearing.
Mr. Speck replied yes, that is correct.
Commissioner Maudlin stated that the decision by the Hearings
Officer was to approve the application with the following
conditions - all of which have to do with things that the
applicant has to do and in effect protects the County - size of
the project, open space, fire protection plan, the giving up of
land along the river bank - ten feet above the mean high water
line.
Mr. Speck stated that Commissioner Maudlin is correct; however
what he is saying is that what the Hearings Officer had concluded
is that these things could be done without a hearing.
Mr. Speck's position is that that is incorrect that you do have
to have a hearing.
Commissioner Maudlin stated that a letter from Mr. Neil Chase
dated September 11, 1978, stated that there was no access to the
property, or would there be access given.
Mr. Speck stated that that letter was written by Mr. Chase to
Mr. Fisher, Mrs. Dean had no knowledge of it. Through discus-
sions with her she was aware that there was visible access
to the property but she was not aware that there was an access
problem until the last time the developer decided they were not
going to renew their options - in the option process.
Mrs. Dean clarified the statement that Mr. Speck made stating
that she was not aware of the letter Mr. Chase wrote to
Mr. Fisher until the February, 1985 hearing. She was not aware
that there was an access problem until they began negotiations
with the developers in October of 1981.
Commissioner Prante requested information as to the percent of
river frontage contained on Mrs. Dean's property.
Mr. Speck stated the his estimate was 1/7o to 1/60.
Commissioner Maudlin stated that according to a letter dated
February 22, 1985, addressed to Mr. Dugan from Mr. Chase,
notification was made to Don and Greta Fisher, and to the Bank
verbally and in writing prior to the Fisher purchase on Novmeber
19, 1979, that no permitted access would be allowed.
Mr. Speck entered two photographs depicting the property and
showing a road in the lower right and corner which went to
Mrs. Dean's current property.
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VOL 64 PACE 700
The following documents were entered into the record in numerical
sequence:
#1 Original option
#2 First renewal of option
#3 Second renewal of option
#4 Proposed contract of sale
#5 Map
#6 Photograph
07 Prospectus
Chairman Tuttle requested the date of the conditional use hearing
on the master plan.
Mr. Speck stated that the original hearing date was March 9, 1982
and was continued for decision only until March 23, 1982, and the
decision was delayed further and rendered on March 29, 1982.
Chairman Tuttle requested clarification on Mr. Lyche's affidavit
to the Bankruptcy Court and how it affects Mrs. Dean.
Mr. Speck stated that she has an undivided interest in the
property which was acquired through a divorce decree - her
interest is subject to the foreclosure suit but it is not a part
of the bankruptcy proceedings.
Commissioner Maudlin stated that there is a letter written by
Martin Hanson that states that he is the Attorney for First
Interstate Bank, which states that they (FIB) are the owners of
the 18 acre tract and 40 acre tract property in the Eagle Crest
development, is that correct.
Mr. Speck stated that yes, that is correct. They are the
contract seller, the lender.
Commissioner Maudlin asked if the well was on the 18 acre piece
of property.
Mr. Speck stated that no, the well is not located on the 18 acre
tract, and further stated that a letter was written to Mr. Dugan
on February 27, 1985, which shows the location of the well which
is on Mrs. Dean's property she owns outside of this 18 acre
parcel.
Mr. Jaqua asked if Mr. Fisher would like to testify at this time
and Mr. Fisher declined.
Dave Jaqua, Attorney at Law, representing Eagle Crest Ltd.
Mr. Jaqua stated that clarification of the original record
presented to the Board must be made in that the record may have
been one of files - Mr. Dugan numbered exhibits in the tentative
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OL 64 PAcF 701
plan file and numbered exhibits in the site plan file, which is
not on appeal - he was to cross reference those. Mr. Jacqua
wanted to make certain the Board recieved the full record.
Chairman Tuttle acknowledge receipt of the entire record.
Mr. Jaqua referenced subdivision ordinance 4.050, subsection 2,
which states that there is a provision that requires bonding for
subdivision s before building permits are acquired. There is
also a provision that allows an exemption and there is some
question in interpreting that ordinance as to whether once you
have bonded the improvements, whether you can then get building
permits or whether, even though you have bonded improvements you
still need an exemption to get building permits. Mr. Jaqua
stated that based on Mr. Isham's interpretation of the ordinance,
they need to request that we have bonded those improvements that
we can go ahead and acquire building permits. Mr. Jaqua stated
that this is a six year phased project and they would not antici-
pate completing all roads, sewer, and water before building
permits for structures were acquired - although those improve-
ments would be bonded before we got the building permits. It is
provided for in the ordinance, to allow them to go ahead and
acquire building permits for improvements even though the
structures have not been compelted, as long as they are bonded
for it.
Commissioner Maudlin that that has always been the case.
Mr. Jaqua stated that he has discussed this specifically with
Mr. Isham and Mr. Isham's interpretation is different; therefore,
to eliminate conflict over the ordinance, and staff has no
objection, it would seem that the best way would be to have a
provision allowing for an exemption.
Mr. Jaqua stated that he would like to deal with the issue of
the Deschutes River access easement. He stated that there has
been confusion throughout the entire hearing process on this
subject. It is not their intent to obstruct the flow of the
River, it is not their intent to obstruct the current use of the
River - their objection is to a blanket ten foot easement for use
by the general public until a County -wide determination to what
appropriate County Policy would be in dealing with the River.
Mr. Jaqua pointed out that during the original hearing when the
conditional use was approved, the question of river access was
specifically discussed and the Hearings Offices does not require
it. Mr. Jaqua requested a letter from Myer Avedovich who
approved the contional use. (Letter entered into the record).
Mr. Jaqua stated that they do not believe that the public access
requested is within the meanings of the parks requirement - that
it is not in terms of public easements along the River it is to
do something else. He stated that Section 6.080 covered it and
also provides an exemption if on-site amenities serve that
purpose. Mr. Jacqua stated that there are significant on-site
V]
VOL 64 PAGE 702
amenities as well as significant off-site amenities. There is
a state park directly across the River.
In restating their position, Mr. Jaqua said that if the Board
determines that they want to do something on the question of
easement, that it is our request that they make it as a condition
of the approval, that they leave the ten foot section in and
remove the word "easement" and make it a condition of approval
that we not obstruct the flow of the River so as to prevent use
of it by boaters. That we allow use in a designated location so
the entire area is not torn up - to allow licensed fisherman the
opportunity to continue to use the area.
Commissioner Maudlin requested clarification.
Mr. Jaqua stated that they do not think it is permissable to
require the ten foot section of the River to have a blanket
easement for public use. It is felt that if there are to be
blanket public easements along the River, that the Commission
should deal with that on a County -wide basis - to determine
policy. Mr. Jaqua stated that there is a problem with the
impact on the area - what might happen to the topography. Our
suggestion would be that if they are going to do something then
limit it to five or ten feet from the mean high water mark. That
they are asking that the accesses to locations in the River be
designated or developed somehow so the area is not marked with
trails and paths throughout.
Commissioner Maudlin stated that if entry is allowed at both
ends of the Eagle Crest property, that is if someone would like
to fly fish for example, they should not be provided with
access from Eagle Crest property.
Mr. Jaqua stated that their suggestion about licensed fisherman
as opposed to using the word "public" gives them the ability to
know who is entitled to be on the property.
Commissioner Prante asked for clarification, stating that what
Mr. Jaqua is saying is that licensed fisherman can have access;
however, hikers, etc., who want to walk along the river will not
be allowed.
Mr. Jaqua stated that when you say "hiker", that sounds okay;
however it opens it up to the general public ... some people take
care of other people's property, others don't. It is their
contention that it be limited in an objective way of determina-
tion.
Mr. Jaqua stated that in reference to the access question, there
are two pieces of property involved. The northwest property is
where the Dean home is located and that is the property which
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VOL 64 PAGE 703
contains the well, etc. The northeast property is 18 acres and
is the property in which the access issue is presented.
The northeast property is owned by First Interstate Bank and was
being sold on contract to Don and Greta Fisher. The northwest
property was originally owned by Don and Greta Fisher, and now it
is in the name of Delbert Dean, Greta Fisher Dean's husband.
Mr. Jaqua stated that the developer did not come in and create a
iand-locked piece of property. Whatever access exists legally to
the northeast property, whatever access exists legally to those
faciiities on the northwest property, the developer is prepared
to provide. The ordinance does not require the creation of an
access that does not exist legally - it requires that we desig-
nate private accesses or easements that exist. When this
property was purchased, the Title Report would not have shown any
legal access. It is their point that the Fishers bought with
that knowledge and it certainly imputed in the conditional
record. It is their position that this is not the forum for you
to decide if it is a proscriptive easement or not, if it is a way
of necessity, or not - the County, at one point, had the statu-
tory authority to hear ways of necessity, but that has been
advocated to Circuit Court. It is our feeling that this is
beyond the scope of what you are being asked to do. Mr. Jaqua
stated that he does not disagree with Mr. Speck that there are
easements for private ways and that they should be shown, but
what they are saying is that this is not the way to establish
that.
In clarifying the history, Mr. Jaqua stated that the original
applicants and the developer of this property went to the Fishers
and negotiated an option. The options state that the Fishers
must participate with the permits necessary for the development
of the project. Mr. Jaqua also stated that that includes right
up through today. Two $5,000 dollar payments have been made that
are non-refundable. The applicant annexed the property for a
fire district at no cost to the Fishers and rezoned the property
for mutliple use agriculture at no cost.
Subsequent to this time, Mr. Fisher became involved in a Chapter
11 Bankruptcy Proceeding. $50,000 is owed to First Interstate
Bank,(FIB), $10,000 to PCA, and $70,000+ is owed to Peoples
Bank. Mr. Jacqua stated that they are not the ones who did not
extend the option. The option was not extended because the
property can no longer be sold under the terms and conditions in
the original option. Mr. Jaqua has talked with both banks, met
with Mr. Fisher, and PCA, and the position that those people were
taking at that time was the contractors were in default - FIB
wanted to be cashed out, PCA had an assignment of contract and
when they saw the developer coming they said if you want it bad
enough you can pay us off, and Mr. Fisher needed debt relief from
the judgement, so what we are being asked to do is to negotiate
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VOL 64 PAGE 704
our own financing in effect, for part of that with Peoples Bank
to create debt relief. Mr. Jaqua stated that they were put in
the position of significant increases in interest rates and a
large amount of cash which was not originally part of the
transaction. Mr. Jaqua stated that for the record, he feels
that the issue of the financial background presented solely for
the purpose of creating an impression of the "big bad developer",
and he is addressing it only as a counter argument.
Mr. Jaqua stated that it is their position and has been from the
beginning that they would like to have that piece of property in
the project.
Mr. Jaqua disagrees with Mr. Speck in reference to Mr. Lyche's
affidavit which was obtained by Martin Hansen of FIB, basically
states the "at the present time, the price Mr. Fisher has placed
on his property is entirely unrealistic and is substantially in
excess of the price paid for other properties connected with the
Eagle Crest Development. The price requested and originally
negotiated turned out to be approximately three times what
anybody else had paid for their property ($200,000).
Mr. Jaqua stated that the manner in which Mr. Fisher proposes to
sell his property involved is an extremely high amount of cash
that must be paid for this property. At the present time, Eagle
Crest Development has no plans whatsoever to attempt to purchase
Mr. Fisher's property due to the reasons set fourth above - based
on the problems that Mr. Lyche referenced. It should not;
however, be interpreted as an effort to remove this northeast
piece of property from the project. The argument that the
tentative plan you have received does not include it and there-
fore eliminates it is also incorrect. Numerous plats and plans
are to be submitted as part of the project - this is not the last
tentative plant that wil be submitted as part of the Eagle Crest
project. Mr. Jaqua stated that if Mr. Fisher and Mrs. Dean feel
it should not be in the project they have the ability to file a
modification with the County to try and have their property
removed from the original permit if they do not want to be
included in the project. The basic facts are that the proper or
best use for that project is the Eagle Crest Development.
Commissioner Maudlin requested clarification regarding the
Mr. Lyche's affidavit to the Bankruptcy Court, stating that in
1982, your clients set up an option with the price of $200,000,
and that price was apparently by agreement, correct?
12
'va 64 PACE 705
Mr. Jaqua stated yes.
Chairman Tuttle requested information regarding the financial
projections for Eagle Crest, was it assumed or made part of the
form of the securities transaction for example, that a way of
financing their acquisition of that purchase would be by assuming
the Dean/Fisher contract with FIB?
Mr. Jaqua stated no.
Commissioner Prante asked that in order to secure that property
they would have to assume the balance of $130,000 against the
property, correct?
Mr. Jaqua stated that at the very least yes; however, because of
the responsibilties of the Fisher Dissolution, etc, it gets a
little more complicated than that.
Mr. Jaqua stated the in reference to the modification of condi-
tions of approval, that those have nothing to do with what
we are discussing. Their position throughout the entire process
has been that those modifications are being done for the con-
venience of clarifying the record. It is their position that the
project was approved with certain series of timelines based on
immediate commencement, then they obtained a series of extension
under the County Ordinance for the conditional use permit.
Mr. Jaqua stated that he doesn't think the project should be
held up for the modification of conditions to be approved, and
the fact that the Board is being asked to do that is not normal
conditions. Mr. Jaqua stated that as far as they are concerned
the property is still in the permits, still in the approval. If
somebody wants to move to take it out, they can move to take it
out and at that point, access becomes an issue.
The following items were entered into the record in numerical
order:
#8 Letter from Neil Chase dated May 8, 1985
#9 1962 U.S.G.S. Map
#10 Letter from Hoy Fultz dated February 11, 1985
#11 Letter from Mr. Jabs, Registered Professional
Engineer, Private Consultant to Eagle Crest Ltd.
Mr. Jaqua referred to a large aerial photograph that Mr. Speck
entered into the record, taken in 1962. Mr. Chase purchased his
property in 1971. The northeast property was purchased by
contract in 1978. Mr. Chase's property was substantially altered
between 1971 and 1978 - the photograph depicts the original
clearing in 1962 and the acess was no longer there after 1971.
Mr. Jaqua referred to the small photograph that had been entered
by Mr. Speck stating that it significantly predates Mr. Chase's
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VOL 64 FAGS 766
property and the change in the access situation. Mr. Jaqua
stated that it is their position that the photograph does not
show access from Mr. Chase's property to the Dean property.
Chairman Tuttle entered the letter from Mrs. Dean to the Board
and labeled it #13.
Mr. Speck, in rebuttal, requested that the Board re -read his
letters to Mr. Dugan dated February 26, and February 27, 1985,
and March 1, 1985. Mr. Speck stated that they will define what
he believes the legal issues are.
Mr. Speck stated that Mr. Jaqua made a statement that this
parcel is still a part of the project; however, their actions
indicate otherwise. Mr. Speck noted that this parcel is not
shown as part of their plan in their most recent map, and that a
letter is recorded from Mr. Lyche states that they are not going
to buy it.
Mr. Speck stated that with regard to whether or not access can be
provided to Mrs. Dean's property, well, and drain field, from her
own property, Mr. Jabs indicated it can be. Mr. Speck had asked
Mr. Fisher if access could be provided, and he stated that there
is a steep slope and it cannot be done.
Mr. Jaqua stated that the contract of sale was submitted to the
Board because of some lanquage about easements.
Mr. Jaqua, in rebuttal, stated that it is important to note that
they did not create the problem. The Fishers purchased property
that was continguous. Mr. Jaqua stated that he has received
nothing in writing that alleges that they have not entered into
good faith negotiations.
Mr. Jaqua entered a document signed by Neil Chase, which are
photographs he took of the front of the Fisher property, which
should be attached to the letter from Mr. Jabs.
Mr. Jaqua pointed out that the burden of proof in this applica-
tion is on the people proposing the change. Mr. Jaqua stated
that there is more than adequate testimony in the record to
support the decision of the Hearings Officer.
Chairman Tuttle stated that the photographs by Neil Chase will be
labeled #14.
Mr. Speck questioned Mr. Jabs through Mr. Jaqua, stating that
Exhibits #11 and #14 imply that access is possible from Mrs.
Dean's northwest property to her well and drain field, and
testimony from Mrs. Dean states that the slope is too great for
access; therefore, what is the normal acceptable grade for public
roads in Deschutes County and what percent of grade to you have
14
r VOL 64 DA!',-- 707
7
to have a variance and how far will it go? Also, did Mr. Jabs in
fact compute what an access road to the drain field and well area
would be,and if construction of that road would be economically
feasible - what the estimated cost would be?
After discussing the questions with Mr. Jabs, Mr. Jaqua stated
that there is a letter from Mr. Chase which was submitted
previously which references the type of road that currently
exists and it is not a public road of any particular type slope.
It is a dirt access down the gully to Mr. Chase's property.
Mr. Jaqua stated that Mr. Jabs is being asked for some County
requirements, so they are doing their best to guess on some of
these requests. It is their feeling that the normal acceptable
slope on public roads is somewhere in the neighborhood of 10 to
12%. The grade over which the variance is required is in the
neighborhood of 16%. The cost was not estimated.
Chairman Tuttle suggested to the other Board members that the
hearing be continued until 11:00 a.m. Monday, May 13, 1985 at
which time if there are any questions of the Board that need
clarification, it would allow them the opportunity to make that
request of the parties and have them submit clarification in
writing.
In reference to the following testimony by Donald Fisher,
Mr. Jaqua stated that he would object to testimony that would
not be in the normal course and that do not have proper standing
or are not a part of the original application.
Mr. Don Fisher, 6754 Highway 126 West, Redmond. In response to
the statement by Mr. Jaqua that the Title Report excludes
easement to the property, there may be a lawsuit action taken.
Mr. Fisher stated that the Board does hear ways of necessities.
Chairman Tuttle stated that the Board no longer hears ways of
necessities, that Circuit Court has that option.
Mr. Fisher indicated that the developers refuse to negotiate.
Mr. Fisher stated that Mr. Chase did send him a letter that there
wasn't access and that he wasn't going to grant access; however,
that was when the property was initially purchased and there was
no need to make an issue of it.
Mr. Jaqua stated that they would provide Mr. Speck with the
information on the slope of the road as computed by Mr. Jabs.
George Read stated that he has provided the Board with a 1980
order regarding modification of conditions. The staff has
proceeded under that order since that time in regards to changes
or conditions.
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VOL 64 PAU,708
Mr. Read stated that the Hearings Officer and the Planning
Director have the discretion to hold hearings based upon modifi-
cations at their option and the resources available to staff. In
this case the modification of conditions was made for the
conditional use for the destination resort was made by the
Hearings Officer, therefore he would be the one to hear the
modficiation of conditions request.
Mr. Read stated that he initially was going to object to the
access easement being referenced. He stated that they had
received several comments from people wishing to attend the
hearing or wishing further comment if that were to be changed.
However, I would urge that if there were any changes made to the
easement requirements that the staff be consulted.
Mr. Read stated that a point of clarification is there has never
been a suggestion by the staff to require access through this
development to reach the River. The only access the staff has
recommended and which the Hearings Officer found was access of
the ten feet from the mean high water makr from the River.
Mr. Read stated that there is always an option that as with any
reason under agreement with the County, if there is a problem
with that easement, the applicant can come before the Board and
request changes and at that time a hearing would be held regard-
ing that request.
Chairman Tuttle stated that the issues that will be dicussed next
Monday will be as follows:
i) Modification issue
2) Easement along the river
3) Access issue
4) Bonding issue
MOTION: MAUDLIN moved to continue the hearing regarding
the Hearings Officer's decision on the Eagle
Crest Development to Monday, May 13, 1985 at
11:00 a.m.
PRANTE: Second.
VOTE: UNANIMOUS APPROVAL.
16
• Vol 64 PACE 709
LA
ting was adjourned.
S COUNTY BOARD OF COMMISSIONERS
E A. TUTTLE, CHAIRM
ISTOW PRANTE, COMMISSIONER
DI
BOCC:kbw
85-201.1
LIN, COMMISSIONER
17