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1990-10190-Minutes for Meeting March 28,1990 Recorded 4/12/199090-10190 too - 18 91 MINUTES MICROFILMED DESCHUTES COUNTY BOARD OF COMMISSIONERS MAY ~ 1990 March 28, 1990 Chair Throop opened the meeting at 10:05 a.m. Board members in attendance were Dick Maudlin, Tom Throop and Lois Bristow Prante. Also present were Rick Isham, County Counsel; Karen Green, Community Development Director; George Read, Planning Director; Dave Hoerning, County Engineer; and Mike Maier, County Administrator. 1. ORDER 90-016 DESIGNATING APRIL AS EARTH MONTH Before the board was signature of Order 90-016 Designating april as Earth Month and April 22, 1990, as Earth Day. Mike Kozak, representing the Bend City Council, and Vince Genna, representing the Bend Parks and Recreation District, expressed their support for Earth Month with similar resolutions. Commission Throop announced that the City of Sisters and the City of Redmond had also signed similar resolutions. PRANTE: I would move signature of Resolution 90-016 designating April as Earth Month and April 22.., 1990, as Earth Day. = MAUDLIN: Second. VOTE: PRANTE: YES THROOP : YES MAUDLIN: YES r 2. CONSENT AGENDA Consent agenda items before the Board were: #1, approval of Amendment #8 and #9 to the 1989-91 Intergovernmental Agreement with the State Mental Health Division; #2, signature of MP- 89-25 for Herbert Hunt; #3, final plat for Ponderosa Estates First Addition and Acceptance of Declaration of Dedication; #4, signature of Development Agreement for Bend Investments; #5, signature of MP-89-41 for the Southwards and acceptance of Declaration of Dedication; #6, signature of final MP-89-57 for Sharon Buck; #7, chair signature of Liquor License Application for Alpine Foods in LaPine; #8, signature of Tax Refund Order 90-037; #9, signature of Order 90-039 transferring certain monies from the Land Sales Fund. PRANTE: I'll move consent agenda. MAUDLIN: Second. rc r PAGE 1 MINUTES: 3/28/90 tau b 1992 VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 3. CONTINUATION OF PUBLIC HEARING: ORDER 90-011 VACATING 30-FOOT PARCEL Chair Throop opened the continued public hearing. Commissioner Prante said she had met with Ms. Settlemyer and her children, Dave Hoerning, County Engineer, and Larry Rice, Public Work Director. She said they were able to answer Ms. Settlemyer's procedural questions, and that Ms. Settlemyer had withdrawn her objections. Dave Hoerning said they had provided Ms. Settlemyer with some drawings, and she understood what was happening. No one from the audience wished to testify. MAUDLIN: Move signature of Order 90-011. PRANTE: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 4. PUBLIC HEARING: ORDER 90-020 VACATING A PORTION OF EVERGREEN AVENUE IN REDMOND Chair Throop opened the public hearing and asked for a staff report. Dave Hoerning said the county received a petition from the City of Redmond on February 14, 1990, asking that a portion of Evergreen Avenue, between SW 15th and SW 17th, and a portion of SW 17th, between SW Evergreen and a point 289.7 feet northerly, be vacated. He said that included the platted street in the area of the dry canyon which the City of Redmond would be developing. He said the land surrounding the vacation was basically owned by the City of Redmond except for two parcels which were owned by the Schroeders. He said the Schroeders were willing to work with the City in order to develop the park. Stan Stevenson, Director of Public Works for the City of Redmond, testified that the vacated roads were in the area where they would be building Sam Johnson Park. He said because these accesses were not currently closed, the City was experiencing an extreme amount of vandalism on the work being done in the park. He said 17th would eventually be reopened when a parking lot was built at the intersection of Evergreen and 17th for access to the Sam Johnson Park area. He said the vacated area of Evergreen would be converted into foot and bicycle paths. PAGE 2 MINUTES: 3/28/90 ! rju - 1893 Dave Hoerning said vacation. PRANTE: I would r MAUDLIN: Second. VOTE: PRANTE: THROOP: MAUDLIN: he would recommend the Board approve the hove the vacation. YES YES YES 5. GIBBENS BONDED SERVICE CONTRACT FOR UNEMPLOYMENT COMPENSATION BENEFITS Before the Board was signature of a Bonded Service Contract with The Gibbens Co., Inc. The Gibbens Company would administer an unemployment compensation cost control program for the County which would include management of an unemployment compensation benefit payment account to pay the County's reimbursement obligation for unemployment compensation. PRANTE: I would move signature of the Gibbens Bonded Service Contract. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 6. PERSONAL SERVICES CONTRACT WITH THE WYATT COMPANY Before the board was signature of a Personal Services Contract with the Wyatt Company for actuarial services. The Wyatt Company would provide an objective and independent analysis of the general liability and workers' compensation self- insurance programs. PRANTE: Move signature of contract. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES PAGE 3 MINUTES: 3/28/90 ~►a ~1894 7. ORDER 90-038 PROVIDING FOR SALE OF TAX FORECLOSED PROPERTY AND BARGAIN AND SALE DEED FOR LEONARD FISHER Before the Board was signature of Order 90-038 providing for the sale of tax foreclosed property and signature of bargain and sale deed for Leonard Fisher. PRANTE: Move signature of Order 90-038. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 8. APPEAL BY ROBERT LOVELIEN OF DENIAL OF APPEAL ON GROUNDS OF INSUFFICIENT REQUIRED INFORMATION George Read said on February 5, 1990, the Hearings Officer approved an application for a river set back exception. An appeal of the Hearings officer's decision was filed and the fee paid by Robert Lovelien for Walter Seaborn on February 14, 1990. No transcript was submitted with the appeal. On February 26, 1990, appellants requested a copy of the tape of the meeting with the Hearings Officer. On February 27, 1990, the appellant picked up a copy of the tape. On February 28, the appellant was sent a letter indicating that no transcript had been received. On March 9 a notice of insufficient appeal was mailed to appellant. On March 12 the transcript was received by the Planning Division. George Read said that the appeal section of the County ordinance stated that "failure to submit the transcription of the magnetic tape record shall render a notice of appeal insufficient except that said transcript may be submitted within 10 days after the date notice of appeal is filed." He said the issue before the Board was whether the appeal was valid. He said according to the time line in the ordinance, the transcript was due on February 14 but was not submitted until March 12, 1990. Bob Lovelien, representing Walter Seaborn, said that the appeal was filed on February 14. He had received a letter dated February 27, 1990, from Jim Raisanen, County Planner, indicating that the application had been accepted for processing by the Deschutes County Planning Commission. He said his office called Jim Raisanen February 28, 1990, regarding a misunderstanding about what the proper form would be. He said Jim Raisanen sent out a corrected notice of information that same day. It said the decision would be sent to hearing before the Board of Commissioners on a date that would be set upon the receipt of the transcript of the PAGE 4 MINUTES: 3/28/90 vi - 1895 magnetic tape from the Hearings Officer meeting held for A- 90-3. He said he put the transcript into the mail on March 9, 1990. He felt that the ten days should have been from the date he received the letter from Jim Raisanen which would have been March 10, a Saturday which shouldn't be counted because it wasn't deliverable on the weekend. He said their position was that they did have the transcript in within 10 days from the date that the appeal had been accepted. He felt the Board should hear the merits of the case rather than have the matter decided on a technicality. He said it was almost impossible to get transcripts done in the 10-day limit due to limited staff time available, and the inability to hire someone to do the transcriptions. He said the 10-day limited had never been an issue before in his dealings with the County. Commission Throop asked Mr. Lovelien for his interpretation of the procedures ordinance. Mr. Lovelien said the key date was getting the notice of appeal filed, and that the transcript was due 10 days after that, however he felt that the practice had been modified. He said normally they would wait until the application was accepted by the County before preparing the transcript. Walter Seaborn said he hoped to be able to speak on the issues involved and felt the Board should hear these issues. He felt the decision should not be based on whether or not some papers were filed on time. Commissioner Throop said the County had to have a procedures ordinance, otherwise there would be wide open time frames which would create such a mess the County couldn't operate. Myer Avedovich, attorney representing applicant, said they had been trying to get through the process for about one year, and the issues had been aired many times. He said in the original hearing, their application was denied. They readjusted the site, reapplied, and had a second full hearing. He said Mr. Seaborn submitted considerable documentation and testimony at those hearings. The application was approved at the hearing on February 5, 1990. He said if that decision were appealed, it had to go through the procedural ordinance which was a mandatory ordinance which didn't give any options. He said the County's ordinance said that when you filed a notice of appeal within 15 days of the hearings officer's decision, the appeal included a transcript of the magnetic tape. He said the ordinance allowed an additional 10 days for submittal of the transcript because of the difficulty in getting a transcript done in time to file with the appeal. He said Mr. Lovelien did not request nor pick up the tape until after the deadline had passed. He said his client was suffering economic damage because they had an approval but weren't able to build because of the invalid appeal. He said PAGE 5 MINUTES: 3/28/90 TOO - 1886 he did not feel that there were any meritorious issues in the appeal. He felt the bottom line there was a mandatory requirement which wasn't met in order to perfect the appeal. He said the appeal should be dismissed and his client should be given his building permit. Commissioner Prante asked why the County has sent the letter on February 27, 1990. George Read said the County did not officially accept an application for an appeal until a transcript had been received. He said the letter which was sent accepting that application was sent in error. When the error was discovered, another corrected letter was sent. He said the planner in this case was new, had not worked on one of these before, and had just made a mistake. He said legal counsel had determined that the failure to submit transcripts section was a jurisdictional issue. Commissioner Maudlin asked if the letter went out with the tape or if it was a separate item. George said it was separate. George said that when someone filed an appeal, the filing of the appeal form and the paying of the appeal fee started the clock. He said the County had done the transcripts in the past, but several years ago the County started having the applicants prepare the transcripts. At that time, they added 10 days to the time allowed to submit the transcripts. The appeal had to be filed within 10 days after the decision, and then there was an additional 10 days to submit the transcript. Rick Isham reported that in 1982 the procedures ordinance was revised in an attempt to resolve several problems. One problem was the County preparing the transcripts for appeals, which were very burdensome. The only exception to the required transcript on an appeal was when the tape was unintelligible or nonexistent. He said it was revised to some extent to discourage appeals--to make it difficult, but not impossible to appeal. Also, in order to met the 120-day requirement of state law, some of the old 15-day limits were changed to 10 days. He said it was his opinion that the language was intended to be jurisdictional. If you didn't meet it, your appeal was invalid, and that was the end of it. If an appeal was filed and a transcript was not filed, then the appeal was insufficient. Commissioner Maudlin said he had read the total file. He said the February 27 letter might have been an error by staff, but it was signed by the Planning Director, and the correction letter still indicated that the matter would be referred to the Board of Commissioners as soon as a transcript was received. George Read pointed out that both letters were sent out after the deadline for submission of the transcript and were sent in error. PAGE 6 MINUTES: 3/28/90 1 9r) 1897 Commissioner Throop said his concern was that the deadline was on the 24th, and yet the County sent a letter on the 28th saying a hearing would be set before the Board of Commissioners as soon as the transcription was received. Commissioner Throop asked what difficulty that would put the County in. Rick Isham said he did not feel it placed the County in any difficulty since letters were not authorized communication in the context of an appeal. He said it showed that the Community Development Department employees needed to do a better job of analyzing the paper work coming across their desks for signature, but there was nothing in the ordinance that allowed the Planning Director, the Community Development Director, or the Board of County Commissioners to extend the appeals deadline. Commissioner Throop asked if the Commissioners decided to hear the case because the Planning Department had made an error, if the case could be appealed to LUBA? Rick Isham said yes, and that the first question LUBA would have to deal with was, "Did the Board have the jurisdiction to hear the merits of the appeal." Rick said that in order for the Board to hear the merits of the case, the ordinance would have had to say that the Planning Director or Community Development Director had the right to amend the ordinance through a mistake without bringing it to the Board of Commissioners. Commissioner Maudlin and Commissioner Prante both expressed the desire to hear the case. Commissioner Throop said that the Board could not allow the procedural ordinance to be amended by a mistake. Commissioner Prante asked if the Board had the authority to disregard the ordinance and consider the appeal on its merits. Rick said they didn't have the authority to go against the ordinance, but they had the authority to reject his advise. Commissioner Maudlin asked that his suggestion that the Board hear the case on its merits be withdrawn. He just wanted to stress that if everybody should follow the language in the ordinance, including the County. MAUDLIN: I would then move that we deny the application of the appeal because it was not timely and that we make a decision at this time. PRANTE: Second. Karen Green said a mistake was made but that she agreed with Rick Isham's opinion that this mistake didn't waive the provisions of the ordinance. Commissioner Throop said he would have liked to have heard the merits of the case because he was most reluctant to allow variances to the set back from the river. He felt the set back requirements were not PAGE 7 MINUTES: 3/28/90 t_00 - 1898 9. 10. stringent enough as it was. However, he did not see how the Board could legally hear the issue. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES Mr. Seaborn said he would like to explain the situation to the Board. Mr. Throop said he could come to the next work session of the Board, but that anything he would say would not have a bearing on the Board's decision not to allow the appeal. PURCHASE OF PROPERTY FOR THE HEALTH BUILDING Commission Prante explained that property behind the County Human Resources Building was for sale from the Oregon Community Foundation. The property had been deeded to them for support of the Salvation Army and the American Red Cross. The Oregon Community Foundation had contacted Steve Scott, a local realtor, for advise on the value of the property but did not retain him. They decided to get sealed bids for the property. Rick Isham said that he had contacted Mr. Jackson at the Oregon Community Foundation to see how the County could assure that the property would come to the County. The Foundation was unwilling to enter into a formal right of first refusal but would consider an offer from the County which contained such a right. Thus a contingency that if the County's bid was not the highest and best bid, they would consider our pledge that we would beat any offer by a set amount of dollars. PRANTE: I would move we proceed on the purchase of Health Building. MAUDLIN: I second that motion. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES AMENDED 1989-90 STF APPLICATION Before the Board was chair signature of an amended 1989-90 STF Application applying for an additional 1/2 cent granted to counties by passage of a 1989 house bill. This would be an additional $25,000 for this fiscal year. PRANTE: Move signature. MAUDLIN: Second. PAGE 8 MINUTES: 3/28/90 j ou -:1899 VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 11. WEEKLY WARRANT VOUCHERS FROM WEER OF MARCH 19, 1990 Before the Board was approval of weekly warrant vouchers from the week of March 19, 1990. PRANTE: Move approval. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 12. WEEKLY WARRANT VOUCHERS Before the Board were weekly warrant vouchers in the amount of $129,626.36. PRANTE: I will move approval upon review. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 13. ORDER 90-040 SALE OF TAX FORECLOSED PROPERTY AND BARGAIN AND SALE DEED FOR GARY CLAWSON Before the Board was signature of Order 90-040 providing for the sale of tax foreclosed property and signature of a Bargain and Sale Deed for Gary Clawson. PRANTE: Move signature. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 14. CHANGES TO FRED MEYER STOP LIGHT AGREEMENT Before the Board was approval of changes in the Fred Meyer Stop Light Agreement. PRANTE: Move Signature. PAGE 9 MINUTES: 3/28/90 x 0 0 -Q 1900 MAUDLIN: I second the motion. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 15. CROOK COUNTY ENVIRONMENTAL HEALTH AGREEMENT Before the Board was discussion of the Agreement to provide Sanitarian Services to Crook County two days a week. Karen Green reported that due to the loss of Sanitarian staff in Deschutes County and their inability to find qualified replacement staff, that Deschutes County could no longer manage its own environmental health work load, let alone Crook County's. Commissioner Throop said he had spoken with Judge Hoppes from Crook County and explained the situation. He said Judge Hoppes was not happy about the prospect of having DEQ provide their Sanitarian services, but he understood that Deschutes County would be unable to provide those services after the end of March 1990. Mike Maier said he called Judge Hoppes about another matter after Commissioner Throop had spoken with him. Mike Maier did not feel that Judge Hoppes was in agreement with Deschutes County canceling the contract, and that he wanted Deschutes County to continue to provide Sanitarian services even if it was only one day a week. Karen Green said that Deschutes County staff was currently working with DEQ staff in Crook County to make the transition, and that Judge Hoppes must, therefore, understand that we were discontinuing service. The Board agreed that Deschutes County could no longer continue to provide Sanitarian services to Crook County, and that Commissioner Throop would send a letter to Judge Hoppes to make sure that he understood. 16. RESOLUTION 90-025 TRANSFERRING APPROPRIATIONS Before the Board was signature of Resolution 90-025 transferring appropriations within various funds of the budget. PRANTE: Move signature. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 17. ORDER 90-041 TRANSFERRING CASH Before the Board was signature of Order 90-041 transferring cash within various funds of the budget. PAGE 10 MINUTES: 3/28/90 O!) - ; 9 01 PRANTE: Move signature. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 18. AGREEMENT AND QUITCLAIM TRANSFERRING PROPERTY TO CITY OF BEND Before the Board was signature of an Agreement and Quitclaim for the transfer of property to the City of Bend. Rick Isham said that in 1940, the County transferred two blocks and 15 lots to the City of Bend to be used for cemetery purposes. The purpose of the Quitclaim deed was to lift the requirement that they be used for cemetery purposes. The agreement with the City stated that if there were a problem, the City of Bend would be responsible, and the property had to be exclusively used for the construction of residential dwelling units available to low to moderate income persons. PRANTE: I move signature of agreement and Quitclaim transferring property to the City of Bend. MAUDLIN: I'll second the motion. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES DESCHUTES COUNTY BOARD OF COMMISSIONERS zl~ Lois'B 'stow Prante, Commissioner /$71 Torh ThrooOp, Chair Di Mau lin, ommissioner BOCC:alb PAGE 11 MINUTES: 3/28/90