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1989-33776-Minutes for Meeting December 13,1989 Recorded 12/19/1989Js ,n546 89-33776 PUBLIC HEARING -y APPEAL OF HEARINGS OFFICER'S ZONE CHANGE AND PLAN A STRASSER, MONTGOMERY DECISION TO ALLOW':::~`` ENDMENT FOR ;w &NND OLIVER ~ DESCHUTES COUNTY BOARD OF COMMISSIONERS December 13, 1989 J~~ Chair Prante opened the public hearing at 1:35 p.m. Board members in attendance were Dick Maudlin, Tom Throop and Lois Bristow Prante. Also present were George Read, Planning Director and Karen Green, Community Development Director. Commissioner Maudlin disclosed that he had received a visit from Terry O'Sullivan, attorney for appellants, that morning. He spoke with him regarding the fact that Mr. O'Sullivan had some personal problems and would be unable to attend the public hearing. Commissioner Maudlin said he then spoke with the attorney for the proponents, Myer Avedovech, about the same thing. Commissioner Throop said he spoke with Dave Oliver regarding issues other than this case. He also spoke with Mrs. Schwartz regarding the process but not the substantive merits of the case. There was no challenge of any member of the Board. George Read gave the staff report. He said that this public hearing was to consider a comprehensive plan amendment and zone change on a parcel approximately 10 acres in size. The parcel was located in the Springriver area on the corner of Lunar Drive and Springriver Road, approximately 1/8 mile west of Harper Bridge on the south side of the road. Currently on the property were some nonconforming uses: a real estate office, a ski shop, and a cafe which had been legally converted into a contractor's office. The remainder of the property was vacant. The present zoning was RR- 10, and the proposal was to change it to Rural Service Center Commercial with a Limited Use (LU) Combining Zone which imposed additional restrictions. George Read said the Deschutes County Hearings Officer recommended that the Board approve the application in his Findings and Decision on September 21, 1989. The Hearings Officer's decision was appealed as provided for in the County Procedures Ordinance. The Hearings Officer approved the application subject to the condition that the limited use combining zone allow only the following commercial uses: fishing supplies and equipment, snowmobiles, snowmobile accessories, marine accessories, general store, hardware store, convenience store with gas pumps, full service gas station with auto repair services, welding shop, fast food restaurant;' PAGE 1 PUBLIC HEARING: 12/13/89 ov) - 01547 or coffee shop, recreational rental equipment store, kennel and/or animal hospital, and an excavating business. The staff supported the Hearings Officer's recommendation. George Read said he received a letter from the Department of Land Conservation and Development (DLCD) which essentially stated that there were some problems with the information that the staff provided to the State. They had not received everything in the file, in particular, the applicant's burden of proof statement. The DLCD was concerned that the County was allowing urban uses in a rural area. George Read said the state statute and Oregon Administrative Rules required a "reasons exception" to be taken when the County allowed uses other than "rural uses" in rural areas. Commercial uses had generally been determined to be non- rural uses. The "reasons exception" stated primarily that other uses would be allowed in rural areas if they were reasonably necessary to serve the rural residents of the area. He said the original County Comprehensive Plan adopted in 1979 stated that it appeared a rural service center would eventually be needed in the Springriver/Fall River area. Commission Maudlin asked for a definition of a "rural use." George Read said rural uses.had never been defined. He said that the Curry County court case essentially said that "commercial uses" were not rural uses. He said the existing statewide planning goals were silent on what was and what was not a rural use, however the Administrative Rules provided for the "reasons exception" to allow commercial uses in a rural area if it could be shown that they were necessary to serve the rural needs of the community. Commissioner Throop said that the EFU statute and the Forestry statute could be used to determine what uses should be considered rural uses. He said commercial uses were considered urban uses at this time. Until there was further rule making and definition, urban uses were not given an outright okay in a rural zone unless a "reasons exception" could be determined. George Read said that another criteria that needed to met in the zoning ordinance was determining that this was the best location to serve the rural needs of the community. He said the purpose for narrowing the application to a limited use combining zone was to specify what uses would be allowed. George Read said he spoke with Brent Lake, DLCD, on December 11, 1989, about the letter received from DLCD. Mr. Lake said that he personally felt that the applicant's burden of proof statement was adequate to address the concerns of the Department, but he did not give an official Department's recommendation. PAGE 2 PUBLIC HEARING: 12/13/89 (A-4 , 0548 Myer Avedovech, attorney representing proponents and the applicants, 315 NW Greenwood, Bend, submitted some exhibits. He said the first packet contained signatures obtained from people in the general vicinity of the proposed zone change who were in support of the service center. Another exhibit was a diagram of the area being discussed and pictures taken around the proposed area. He said the excavation business request was from Mr. Strasser who had run an excavating business in the area for 12 years and wanted to move it to this property. He wanted to build a big shed to house his equipment next to the ski shop which he already owned. Commission Throop asked why the application requested a zone change on two tiers of lots rather than just the lots abutting Springriver Road. Mr. Avedovech responded that the three applicants owned the entire 10 acres (two 2-1/2 acre parcel and one 5 acre parcel) which had been broken up for an old subdivision. The owners were not considering the development of the subdivision. Commissioner Prante asked how far the proposed rural center was from Sunriver Industrial Park. He said approximately one mile. Mr. Avedovech said it concerned him that the DLCD would write a letter challenging a project of this size without having the complete information. He said the Rural Service Center proposal was not a new concept and that it had been approved by the County and by the Commission when they adopted and acknowledged Deschutes County's Comprehensive Plan in 1979-80. He said they were trying to do exactly what was planned for 9-10 years ago--a rural service center in the Springriver area. He said this area was excepted out of the Goal 3, Goal 4 agricultural/forest land when the plan was acknowledged in 1979 because it had never been zoned as agricultural or forest land. He defined rural lands as lands suitable for sparse settlement, small farms, and acreage homesites with very few public services. He was concerned with the way Commissioner Throop defined rural uses. He said the only definition in the Curry County case focused on public sewer and water service as making something urban as opposed to rural. He said he didn't think of Sunriver, Springriver and LaPine as urban areas. He pointed out that they would not be removing any land from rural lands and just wanted to provide a few commercial services to the rural area. He said a rural service center, of which there were a number in Deschutes County, was not intended to be an urban area. He said, when the area was originally developed, it was considered a commercial area. The owners of lot 100 had been taxed since 1967 for commercial property. He said he did not know what the appellants were contending since the notice of appeal was not detailed, however he understood that the appellants would be given the opportunity to testify in PAGE 3 PUBLIC HEARING: 12/13/89 0139 ° 0549 writing, and that he would have an opportunity to respond in writing. He said the appellants had raised the issue that no notice had been placed on the property. He submitted a picture taken on August 15, 1989, of the sign that had been up for approximately one month. He said the proposed excavating business would be used to help develop some of the lots and for snow removal. A small cafe/convenience store would serve the local citizens so they wouldn't have to drive into Bend, LaPine or into the fancier establishments in Sunriver to grab a sandwich on the way home from the mountain or pick up a couple of items at the store. He said the rural service center would not affect traffic on Harper Drive or south Century Drive. He had spoken with Brent Lake, DLCD, prior to submitting the application and later on. He said Mr. Lake felt that if the DLCD had had the burden of proof statements which the applicants had submitted, the negative letter probably would not have been sent. Mr. Avedovech said the applicants had one disagreement with the Hearings Officer's list of allowed uses. They had asked for a tourist facility or small motel to be one of the allowed uses in the Rural Service Center. They submitted information to the Board regarding Sunriver's intent to put in a golf course and additional housing into the general area and about an apartment being built in the business park with motel sized rooms. He said if there was need for these types of developments, he felt they had a right to apply to have a motel placed in the rural service center. He said if the Board felt there were some uses on the list that the Hearings Officer submitted which they wanted to eliminate, the applicants would be willing to discuss it. They had simply identified the uses which were directed toward the type of rural recreational activity that went on in that part of the county. He suggested it wasn't the use that should determine whether it was urban or rural but the location. He said a convenience store in this area would not be an urban use since it was not intended to serve an urban population. Commission Throop said he felt Mr. Avedovech's interpretation would not hold up in court. Testimony in support of the applicants: Jim Quinn, 20021 Badger Rd, Bend, said he was a licensed real estate broker and owner of Sunset Realty in the Sunriver Business. He owned a triplex on Springriver Highway approximately one mile from the proposed site, and he had sold a number of properties in the immediate area. He was building a home .8 of a mile from the proposed site. He felt there was no problem with the Rural Service Center. He said the individuals that filed the appeal were PAGE 4 PUBLIC HEARING: 12/13/89 0 9 - 0550 Sunriver businessmen who didn't want the competition. He said he was a competitor of the applicants and, therefore, had no vested interest in the application being approved. He said that in order to get to a store in the area, you had to fight the largest destination resort in the Northwest. He said the consumer would benefit from the competition, and that the majority of the people who lived in the area wanted the service center. Robert Ushack, 16932 Jacinto, said he owned a half dozen lots in the area and had lived there for 11 years. He said he had signed the petition in favor of the application. He said the people he had spoken with felt it was difficult to buy their groceries and gas in the Sunriver area. He said he saw the notice of the zone change, and it was posted in a visible location. He felt the appellants were indifferent to the Springriver area people and did not want the competition. Reverend Roy Marta, 17208 Pintail, Fall River Exit, pastor of the Three Rivers Baptist Church in Springriver/Sunriver/Fall River area. He believed the rural service center would help good, steady growth for the area. The majority of the people he ministers to were in favor of the application. Testimony in opposition to the application: Herbert Kappel, 17255 Azuza, Sunriver, wanted to make sure that the letters and picture he submitted were in the record. George Read confirmed that they were. He said that he had never seen anyone survey the area to see if these services were need. He said there was already a small convenience store on the way to Sunriver. He did not want a dog kennel in this area because of the noise. Evelyn Schwartz, 17384 Guadalupe Way, said she didn't want any development there but specifically didn't want a gas station or a motel. When she wanted to build something commercial on her property, she was not allowed to do so. Stan Kelch, 6 Towhee Lane, P.O. Box 4307, Sunriver, president and shareholder of Sunriver Home Center said he was one of the appellants. He was speaking for the appellants since Mr. O'Sullivan, their attorney, could not attend the public hearing. The appellants felt there was adequate area already available for these types of uses: 60 acres in the Sunriver Business Park and 12 acres in Sunriver Mall. They questioned why the property was no longer in the flood plain. He said they had requested to see the survey that allowed it to be taken out of the flood plain. George Read said he had never received such a request. He said the county received a Letter of Map Amendment from the Federal Emergency Management Agency and the latest maps did not show this area in the flood plain. PAGE 5 PUBLIC HEARING: 12/13/89 099 - 0551 Quentin Schwartz, 17384 Guadalupe Way, said he had lived in the area for about 20 years. He felt the list of uses was endless and several were not needed in the area. He said he was never polled to see whether he felt these services were needed. He said most of the people in the area were retired and did their shopping in Bend. He felt the Mom and Pop store in Sunriver was adequate for when they didn't want to go into town. He said the area was pristine, and didn't want to see any large buildings for equipment or welding shops located there. He felt it was too close to the river, and it wouldn't be feasible to put in a motel because of the sewage problems. George Read said he had a few final comments. He pointed out that in the staff report, it was recommended that a motel not be an allowed use because they felt it would not be a use that would serve the rural area residents. He said that the existing Comprehensive Plan did indicate that there would be a need for a Rural Service Center in the Fall River/Springriver area some day, however it did not specify this particular site for the Rural Service Center. Commissioner Throop asked if the area had been amended out of the flood plain. George Read said that the applicant had provided a survey of the property which established the actual elevation of the area to the Federal Emergency Management Agency. He received a Letter of Map Revision from the Federal Emergency Management Agency stating that when those elevation were surveyed onto the property, it was determined the area was no longer within the 100 year flood plain. He said that the detail of the study that was done in 1985 was not specific to every piece of property, and when the more specific survey was done of the particular site, the FEMA amended the maps accordingly. Commissioner Maudlin asked if the County had notified residents within 250' of the property being considered for rezoning of the proposed change. George Read said that he thought they had notified surrounding property owners slightly beyond the 250' requirement. Commission Maudlin pointed out to Mr. Kelch that Item 3 of the Notice of Appeal stated that the proposed change would adversely affect surrounding properties, and that he didn't feel that issue had been addressed in the testimony. He suggested that Mr. Kelch ask his attorney to do so in his written testimony. Commission Prante announced that the public hearing was continued until 10 am on Wednesday, January 3, 1990, when the Board would make its decision. Mr. O'Sullivan, the attorney for the appellants, would be allowed five working days to submit his written testimony (until 5:00 p.m. on Wednesday, December 20, 1989). Mr. Avedovech would be allowed to pick up a copy of PAGE 6 PUBLIC HEARING: 12113189 0' 9 0552 Mr. O'Sullivan's written testimony and respond in writing by Tuesday, January 2, 1990. . DESCHUTES COUNTY BOARD OF COMMISSIONERS Lois 'stow Prante, Chair !)Ir- 40M Throop, ommission'err Dick Maudlin, Commissioner BOCC:alb PAGE 7 PUBLIC HEARING: 12/13/89