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1990-32182-Minutes for Meeting September 25,1990 Recorded 10/22/199090-321N#' 105 -a 0691 PUBLIC HEARING MINUTES MIC;Z0FII-AEV BUFFET FLAT DELUXE APPEAL NOV 2 7 994_ September 25, 1990 City of Bend Public Works Building Chair Throop opened the meeting at 7:05 p.m. Board members in attendance were Dick Maudlin, Tom Throop and Lois Bristow Prante. Also present were Rick Isham, County Legal Counsel and Kevin Harrison, Senior Planner. Chair Throop introduced staff members in attendance and gave a chronology of events leading up to this public hearing. After the Oregon Department of Transportation approved the improvement of the highway between Bend and Redmond and included it in its six-year highway improvement plan, the land on which Buffet Flat was located was acquired to accommodate that highway expansion. As a result, one of the owners, Eugene Carsey Jr., requested amendments to the Deschutes County Comprehensive Map and Zoning Ordinances to change the designation of the parcel across Highway 97 to the East from Agricultural to Rural Service Center Commercial, to change the zoning from Exclusive Farm Use with 20 acre minimum to Rural Service Center, and to allow this commercial development to move from the northwest corner of the intersection of Highway 97 and Deschutes Market and Nicols Market Roads to the northeast corner of that same intersection. These applications were previously considered by the hearings officer after a public hearing which was held on July 31, 1990. The Hearings Officer denied the applicant's request, and this hearing was an appeal of the Hearings Officer's denial of that application. He said the appeal was part of a legal, land use proceeding, and the Board of Commissioner's was not the "enemy," but the three citizens which had been elected to make these kinds of decisions and resolve these kinds of conflicts. By state law the applicant had the burden of proving that he was entitled to the plan amendment, zone change, and conditional use permit being requested. The standards applicable to the appeal were contained in state Department of Land Conservation and Development rules, the Standards and Criteria of the Deschutes County Year 200 Comprehensive Land Use Plan, and the Deschutes County Zoning Ordinance. He said the application was submitted on the grounds that the proposed property was irrevocably committed to uses other than agriculture and was entitled to a "reasons exception" to the statewide planning goals. The Hearings Officer denied the application on a number of grounds: (1) the Landscape Management Zone requirements could not be met by the applicant because the landmark characteristics of Buffet Flat could not be replicated in the new location under consideration; (2) the applicant had a history of ignoring conditions of previous applications; (3) the property was not irrevocably committed to nonfarm uses; (4) the applicant had failed to meet his burden of PAGE 1 MINUTES: 9/25/90 ,01 105 0692 proof for a reasons exception; (5) the applicant had failed to show that other land could not reasonably accommodate the use and reasonably accommodate that use with fewer impacts; (6) the applicant did not address the agricultural lands policy in the comprehensive plan, among other reasons. The Hearings Officer determined that the land was committed to farm uses, there was no basis to grant the reasons exception, and the unique visual aspect of Buffet Flat could not allowed in the Landscape Management Zone. The Hearings Officer had said he was not opposed to the concept of Buffet Flat but given the current land use restrictions, it could not be moved to the new site. Chair Throop said that the applicant had appealed the Hearings Officer's decision to the Board of Commissioners who would hear testimony, receive evidence, and consider the evidence and testimony previously submitted into the record before making a decision. He said the testimony and evidence submitted at this hearing had to be directed towards the criteria set forth in the notice of the hearing and as Kevin Harrison would describe in his staff report. Testimony could be directed to any other criteria in the Comprehensive Land Use Plan of the County or the land use regulations which any person believed applied to this decision. He said the record would be left open at the completion of the public hearing for written testimony or evidence only until 5:00 p.m. on Tuesday, October 2, 1990. He said the Board would make their decision on Wednesday, October 3, 1990 at 10 a.m. The meeting would be solely for the Board's deliberation and decision and no testimony would be taken. He invited the public to attend this meeting. Chair Throop asked if any member of the Board had had any prehearing contacts regarding this issue. Commissioners Maudlin and Prante said they had not had contacts. Commissioner Throop said he had encountered a few people on the street but as soon as the topic of Buffet Flat had come up, he informed them that he could not discuss it, and therefore had had no contact. He asked if there was anyone who wanted to challenge the qualifications of the Board of Commissioners as a whole or as individuals to hear this issue based upon bias, prejudgment, or personal interest. There were no challenges. Chair Throop said he would ask for a staff report first, then the supporters of the application would be able to testify and submit evidence, and then the opponents would be able to testify and submit evidence. He said each side would be able to make rebuttal presentations. At the conclusion of the hearing, the staff would be given the opportunity to make closing comments. He asked that each person limit his/her testimony to five minutes and not repeat testimony that had been previously submitted since the Board had reviewed the entire record. Kevin Harrison gave a staff report focusing on the criteria the Hearings Officer found most relevant in his decision and detailing his findings. He said the proposed site had been planned and zoned PAGE 2 MINUTES: 9/25/90 105 - 0693 for agricultural uses, and according to statewide planning goals, an exception was required in order to justify changing those plan and zone designations to allow other types of uses. He said jurisdictions could approval exceptions to Goal 3 Agricultural Lands where the applicant showed that the land was irrevocably committed to uses not allowed by the Goal because existing adjacent uses and other relevant factors made agricultural uses impracticable. The rule listed the factors which had to be addressed in the findings document, and explained that plan and zone designations adopted for committed lands had to recognize and allow continuation of existing types of development in the exception area. Adoption of plan and zone designations which recognized other uses could be approved only under the provision of a "reasons exception." In this case, the applicant needed to go through the committed lands exception process and also the reasons exception process because he was attempting to establish a commercial use. In the Hearings Officer's decision, he adopted three findings dealing with the exceptions criteria: 1415. The property contains approximately 17.5 acres that historically have been used for farm use and currently are receiving a special assessment for farm use. The property had water rights totaling 14.7 acres and soils which, when irrigated, are generally suitable for farm use. The 3.95 acres involved in this request contain dwellings and other buildings customarily provided in conjunction with farm use. Properties to the north are similar in soils, topography and vegetation and are currently employed for farm use. Properties located east of the railroad tracks and north of Deschutes Road are also in farm use. The overall character of the area north of Deschutes Road is rural agricultural while the character of the area immediately south of the road is industrial. The industrial uses to the south do not make farm use on the subject property impracticable. Based on these observations it is the Hearings Officer's opinion that the property is not irrevocably committed to nonfarm use and cannot meet the requirements of the rule." "418. With respect to administrative Rule 660-04-022, the applicant states that the need for the proposed use is as follows: Goal 8 recognizes recreation and Goal 9 recognizes that economics are both enhanced by variety. Not everyone fishes, hunts, or rides mountain bikes. Recreational diversity and economic diversity are strengthened by the continuance of an ongoing and well-known amusement establishment. The Hearings Officer finds that this information in insufficient to meet the requirements of the reasons exception. There is little information to justify why this exception is needed at this location for this business." "#20. The applicant has not presented findings which demonstrate that the long-term environmental, economic, social and energy consequences resulting from the use at the proposed site are not more adverse than would typically result from the same proposal being located in other areas requiring a goal exception. The rule requires elaboration on the facts used to determine which resource land is least productive, the ability to sustain resource uses near the proposed use, and the long-term economic impact on the general area PAGE 3 MINUTES: 9/25/90 1 05 0694 caused by irreversible removable of the land from the resource base. Absent this information, it is not possible for the hearings officer to find that the application satisfies the administrative rule." Kevin Harrison said that Section 10.025 of the Zoning Ordinance required findings of conformance with applicable compensation plan policies. Agricultural Lands Policy #10 read that conversion of agricultural land to nonagricultural uses should be based on an ESEE analysis (economic, social, environmental and energy analysis) and demonstrated need consistent with LCDC goals and ORS 215. He said the Hearings Officer addressed this in finding #21 stating "The applicant has submitted insufficient information to address the requirements of agricultural lands policy #10." In Section 10.025 of the County Zoning Ordinance, the applicant was required to make findings which showed that the change was consistent with the purpose and intent of the Rural Service Center zone. The stated purpose was to provide standards and review procedures for concentrations of local commercial services to meet the needs of rural residents as well as limited tourist commercial services consistent with the maintenance of the rural character of the area. The Hearings officer addressed this criterion in finding #22--"It is not clear to the Hearings Officer that the relocation of Buffet Flats falls within the zoning district's purpose. Indeed there is little if any evidence to suggest that this Rural Service Center would meet any of the particular needs of rural residents within this area of Deschutes County. There would not be any retail services of the regular consumer type." Section 4.180 of the County Zoning Ordinance described the Landscape Management Combining Zone which required design review to assure that buildings and structures were visually compatible with the surrounding natural landscape and did not unduly generate glare or other disturbing conditions. The Hearing Officer addressed this criterion in finding #10--"The other issue concerning the appearance of Buffet Flat was the appearance of the buildings and other improvements on the property. The Hearings officer finds that the garish appearance of Buffet Flat is one of the main reasons why it is a landmark. However, that garish appearance could not be replicated on the east side of Highway 97. All new construction would have to conform with the requirements of the Landscape Management Zone. No variance from the Landscape Management Zone has been sought in this application. That zone would require that any buildings associated with this relocation to be visually compatible with the surrounding natural landscape. In the opinion of the Hearings Officer, the relocation of Buffet Flat at this point east of highway 97 does not make sense in light of the restrictions of the Landscape Management Zone. Its status as a landmark would be compromised under these types of conditions." Finding #12, said "that the Hearings Officer finds that, in light of the past practices of the applicant, the general appearance of Buffet Flat as it sits now, and the restriction of the Landscape Management Zone, that it would be very difficult to place conditions on this proposal that would both retain the existing flavor of Buffet Flat but have it conform with the PAGE 4 MINUTES: 9/25/90 105 0695 Landscape Management Zone and other concerns regarding appearance. Indeed, enforcement of any such conditions would be very difficult for the County." Kevin Harrison said the Hearings Officer referred to these findings in denying the request. He said the appeal was based on challenges to these findings. Chair Throop asked if there was anyone from the audience who had questions for Mr. Harrison which would clarifying the information he had just stated in his staff report. Those asking questions did not identify themselves nor were they picked up by the recording system. In response to questions from the audience, Kevin Harrison said this decision was appealable to the Land Use Board of Appeals. He explained that the County had designated a number of scenic corridors which followed major highways and some followed rivers. The County adopted the Landscape Management Combining Zone to implement zoning regulations in the scenic corridors. He said the property in question fell within the Landscape Management Combining Zone, but did not exist when Buffet Flat was first established. He said the Hearings Officer's name was Ed Fitch. Rick Isham said that Oregon Administration Rules adopted by the Land Conservation and Development Commission were laws, and the function of the Board of County Commissioners was to apply those laws to the facts given in the hearing. Commissioner Throop said that if either side did not concur with the decision of the Commissioners, they could appeal to the Land Use Board of Appeals, whose decision could be appealed to the State Court of Appeals, and which ultimately could be appealed to the State Supreme Court. Mr. Harrison was asked what would fall under the category of "social" in the ESEE analysis. He said it was wide open and was a subjective category. Mr. Harrison said the point that the Hearings Officer was trying to make was that those features which characterize Buffet Flat were the kinds of things, i.e. colors, design characteristics, which would not be allowed under that Landscape Management Combining Zone. When the applicant moved his business to the east side of the highway and applied for building permits, during site plan review, the County would apply the requirements of the Landscape Management Combining Zone to that application. Commissioner Throop asked Mr. Harrison to described the process of applying for building permits and getting site plan approval. Mr. Harrison said that when the applicant came in for a building permit to establish the commercial use, he would be told that all commercial uses in the County required a land use approval and site plan review. The County would be looking at set backs, parking, PAGE 5 MINUTES: 9/25/90 105 0696 loading requirements, landscaping, and the outward appearance of all buildings, i.e. material on exterior of building, type and color of exterior and roofing material, and building height. Kevin Harrison said if the buildings on the proposed site stayed in their current farm use, there would be no site plan review. He said that the applicant had not applied for any variance to the requirements of the Landscape Combining Zone. When asked if "garish" was a legal term, Rick Isham said it was not. Kevin Harrison said that in the criteria for reasons exception, there were four factors which had to be addressed. Within one of those four factors was a consideration of the social values. Chair Throop asked for testimony from the proponents first. Greg Hendrix, 716 NW Harriman, Bend, and attorney for the applicant was asked to testify first. He thanked the Board for rearranging its schedule to hold an evening meeting. He said his remarks would be directed at the legal differences that he had with the Hearings Officer. He said the Commission was the final arbiter in the local land use process, and that the law had some "elasticity." His purpose was to convince the Commission if it decided to allow Buffet Flat to move, that it was a legally defensible position, and he pledged to work with County Legal Counsel to draft those findings. He said that in the Spring River Rural Service Center application, the decision could have gone either way, and the Commission could have instructed legal counsel to support whichever decision the Commission wanted to make. He said the underlying issue was, if State government was allowed to destroy Buffet Flat, should local government allow them to continued their livelihood in the same general location? He argued that a community was judged by its cultural diversities, and that Buffet Flat was a retail establishment and amusement park which was like no other. He said there were numerous people who felt that Central Oregon would be a less interesting place to live if Buffet Flat was not allowed to exist in the same general location. He asked the Commission to consider how they would react to a gas station and mini mart at this location. The applicants had asked for a limited use combining zone with only two of the allowed uses in a rural services center: retail commercial establishment and an amusement park. He said that if the Commission felt the retail commercial establishment should have some additional features, that should include it in the conditions. They were planning to address the Landscape Management Zone in the site plan review. His clients understood that they had to abide by County law, and he felt that all the issues the Hearings Officer concentrated on could be resolved during site plan review. They did not intend to pick up Buffet Flat and move it exactly to the other side of the road. They just wanted to take the concept of Buffet Flat, what it did, PAGE 6 MINUTES: 9/25/90 115 0697 what it added to the community, and move it to a situation which was in accordance with the land use laws of the State and County in 1990. He said his notice of appeal and the documents he submitted early in the process outlined their legal conclusions. The kinds of findings he was proposing would meet the County's legal standard. The proposed site was a small portion of an existing farm and none of the existing agricultural ground which was actually being used for crops was going to be used for the proposed Rural Service Center. They only wanted to rezone a small portion, approximately 4 acres, of that 17 acre area. He said there was uncontroverted testimony that this four acres was rocky, and no crops were being raised. It was acreage that was supporting and would continue to support the farm use. Regarding the Hearings Officers concern over the activities at the proposed site "reflecting a commitment to respect the agricultural nature of the area," he said his clients had mistakenly thought that relocating a second existing building on some agricultural land was something the County would want. When he explained, they agreed to move it up on the rocky area. They did not feel the land was committed to farm use since the ground was not being used, and the support building on the rocky, unused farm ground would continue to support the existing farm. They felt there was sufficient language in the goals and the OARs to allow the business to remain in the same general location. He said the uncontradicted testimony was that Buffet Flat was a landmark in Deschutes Junction, that moving the business several miles would have disastrously negative effects on the business, and that after the condemnation by the State Highway Department, there was not enough room in the old Rural Service Center to allow the business to continue there. It would just be trading one Rural Service Center for another because of the highway change. The proposed site was bounded by two existing, grandfathered industrial uses on the south side, to the east and north was a busy railroad and an irrigation ditch, and along the west was Highway 97. They just wanted to take some unused, unproductive ground, currently zoned for farm use, and change it into a commercial activity which would serve diverse economic and recreational needs which would have no impact on the surrounding area. Buffet Flat had existed in its present location for a number of years, and farming had existed around it; so moving it 200 yards to the east would not have any greater effect on farming than the existing business had. He said very few people in Deschutes County who got farm deferrals were professional farmers. Unless you had a big farm in the lower bridge area or in Alfalfa, there wasn't that many professional farmers in Deschutes County. If his clients were allowed to continue their farm operation on their current place, they would have to work somewhere else, and they were proposing that that "somewhere else" be right where they were. He said farm owners needed some other form of income in order to protect farm land from the pressures of development. He hoped the Commission would agree that most of the issues raised by the Hearings Officer could be worked out during the site plan process. PAGE 7 MINUTES: 9/25/90 105 -a 0698 Commissioner Maudlin asked how much of the 150' depth of the service center zone the highway was taking. Greg Hendrix said they were going to wipe out the existing buildings completely. Mr. Carsey said from the audience that the road was about 35' onto the property, and that the right-of-way would extend into the buildings. He said the faster the cars were allowed to go, the bigger the right-of-way had to be. Commissioner Maudlin asked if any thought had been given to moving the business to the back of the property. Greg Hendrix said he didn't have that information with him but both of these issues had been considered by his clients. They were told the buildings would not be structurally sound if they were moved. Also they would have had trouble meeting the set-back requirements, and it wasn't practical for them to continue their operation on the sliver that was left. Commissioner Maudlin asked if any effort had been made to purchase property behind the current site so that the business could remain at the same location. Greg Hendrix said they had considered this, but decided that the only proposal which worked economically was to move across the highway. He said when area property owners knew that you had to move, they often made it too expensive to buy their property. He said they would still be dealing with the same issues if they had purchased surrounding property, because it was also zoned Exclusive Farm Use (EFU). Commissioner Maudlin asked if they were planning to have a flea market on the proposed site. Greg Hendrix said he had hoped that the Commission would address this issue during the conditions of approval. He said his clients would like to continue the flea market, however they had felt that the majority of the opposition was to the flea market. Therefore, they would prefer to have Buffet Flat without the flea market rather than no Buffet Flat at all. He felt the flea market could continue under a retail commercial establishment heading which was something that could be addressed in the conditions of approval or at site plan review. He said the community that testified before the Hearings Officer was very much in favor of a flea market, and the applicants would like to have one. He said if the flea market were allowed, it would be located within the four acre area of rocky ground in the open spaces between the existing buildings Commissioner Maudlin asked if the land which was not occupied by buildings was currently under the farm deferral program. Greg Hendrix said that was true. Commissioner Maudlin asked why they didn't say anything about the Landscape Management Zone when they applied for the zone change. Greg Hendrix said they felt that should be addressed through the site plan review process. Commissioner Maudlin said if the zone change was approved, and then they painted the buildings pink, green, purple, and red and then came in for the application under the Landscape Management Plan, PAGE 8 MINUTES: 9/25/90 10 5 0699 would they then paint the buildings colors which would agree with the landscape management? Greg Hendrix said there was a case about five years ago about whether slate blue was a natural color and somebody went through the dictionary and found that natural color meant a color found in nature--and any color could be found in nature. He said his clients would abide by the County ordinance or the County could disallow the conditional use and issue a shut down order. Commissioner Throop asked if the zone change was approved and an appeal was made to LUBA, did he feel the findings he had suggested would withstand the test at LUBA? Greg Hendrix said he believed that the legal requirements he brought forth in the documents he submitted pursuant to this application would be sufficient to allow the County to approve the application. He said if it were appealed to LUBA, LUBA would look at this decision as an interpretation of the County's own ordinance as well as an interpretation of the rules, and that the County had certain discretion in interpreting their own ordinance. Commissioner Throop said the Hearings Officer had mentioned that in the past the applicants had not met the conditions of prior approvals of that zone, and asked why circumstance would be different in the future. Greg Hendrix said the foundation of our justice system was that you were innocent until proven guilty. He said he knew of no enforcement action, land use violation, or nasty letters sent by the Planning Department indicating that his clients had committed any kind of violation. He said his clients knew that they would be required to comply with the regulations, and that going through this process had put them under the microscope. They realized they had to comply first and grieve later. Gary Everett, realtor with the Frank Ruegg Company, said he had been asked to testify about whether it was feasible for the applicants to relocate Buffet Flat to a conforming area. He said the values of commercial real estate were established by several things: whether it was within the city limits or within the urban growth boundaries, and conformance with zoning requirements, the availability of utilities was critical, road access, existing improvements, exposure, size and location (the smaller the parcel the more the cost per square foot). Commercial property was usually valued by square footage i.e. one acre of property would be $2 a sq. ft. or $87,000 retail. The impact of the Bend Parkway and other road improvements would impact the values. He said in the south end of Bend, any property near the Fred Meyer store was $8-$10 a sq. ft. The Grange Hall which was less than two acres was $7 a sq. ft. and needed sewer and water. At the corner of Murphy Road and Highway 97, there was 5 acres priced at $4.85, but it needed sewer, water, and a highway crossing. A 7-acre mobile home park was available at less than $5 a foot. He said the east side of Bend on the corner of Highway 20 and 27th, there was 37 acres priced at $2.25 a sq. ft. On highway 20 near Williamson there were 4.6 acres at $1 sq. ft. but it was off the main highway by one PAGE 9 MINUTES: 9/25/90 105 - 0700 parcel. North of the industrial park but with no frontage on the highway, there was 5.8 acres for $1.46 sq. ft. with sewer and water available. Near the mortuary entry, there was 6.3 acres at $1.50 sq. ft. He said to move this type of business onto a conforming site within the urban growth and the City limits, would cost more than $1 a sq. ft. Anything less would be property with a very poor location, and there would be something very seriously wrong with it. Commissioner Maudlin asked him if he had looked at any other Rural Service Center for land for this time of project? Mr. Everett said he had not. He said it would probably run $1-$2 a sq. ft. Carol Routh, 9415 S Highway 97, Redmond, said that the part of the site the applicants wanted to use was not farmable anyway and hadn't been farmed. She did not think you could change the character of the surrounding area by moving the business across the street. She felt they could continue their business even though the buildings would have to be different. She felt the community should not lose the character and creativity and eccentricity and garishness that Buffet Flat brought to the area. Karen Ogle, 124 NW Awbrey, Bend, said she owned Trivia Antiques and wanted to give a business point of view. She said Buffet Flat provided an asset to the community, and their demise would follow the Pilot Butte Inn as one of Bend's worst landmark disasters. They did not want to have to explain to their customers what had happened to Buffet Flat. Buffet Flat filled a large need in to the community, particularly in her business field. Mark Becker, 60105 Stirling, Bend, said one of the reasons he came to this area was because of Buffet Flat. He felt the rural residents would use this business. It gave relief from boredom and was a wonderful experience. Warren Neihart, 15820 Sparks Dr., LaPine, said they circulated a petition saying they recommended that Buffet Flat be permitted to move to a new location on the east side of 97 and also allow room for a flea market and adequate parking space. The petition contained about 700 signatures. He said people from Australia, Germany, England and every state of the United States had stopped by and commented on the place. He said Buffet Flat was a big drawing attraction for Central Oregon, and a lot of people stopped in Central Oregon just because of Buffet Flat. Mary Dyer, 19135 Buck Drive, Bend, said she was involved with the Oregon Certified Business Development Corporation which was spending a great deal of time and effort to find viable businesses to bring into Oregon. She said it was difficult to find a business that had a good chance of succeeding as a new business. She felt there would be an adverse economic impact if this business, with a proven track record of survivability, were eliminated. The PAGE 10 MINUTES: 9/25/90 105 - 0701 majority of new businesses did not survive. She said shopping was an important recreational activity for tourists, and she was able to get items that were different at Buffet Flat i.e. antique, handmade, collectible. Tory McCord, 2205 NE Division, Bend, said he lived behind Buff Flat for three years. He lived closer to them then anybody else, and they had never created any problems. He said there were enough shopping centers in Bend. He would take his friends to Buffet Flat before he would take them to Smith Rock or other well-known attractions. Gene Carsey, one of the owners of Buffet Flat, testified that when they started Buffet Flat, they didn't know what they were creating. He said it was a social place, and that many of these letters that had been submitted to the Commission had mentioned the social aspects of Buffet Flat. He was concerned about the comments being made that they had not fulfilled their site plan requirements. He said there had been a condition which required paving the parking area, but when he went in to discuss it with the Planning Department, he was told that a signature had been left off and that it was no longer a requirement. He said small businesses that didn't have a lot of money didn't have a chance to make it. Alta Carsey, 669 NE Lafayette, Bend, said she was Gene Carsey's mother. She said she spoke at the last hearing and wrote a letter so wouldn't say anything more. John Vatcher, 64585 Boonesborough Dr., Bend, was concerned about the terms "garish" and "cannot be replicated" in the Hearings Officer's decision. He felt the applicant intended to replicate the garishness, if not strictly in appearance than certainly in intent, use, and spirit which would continued Buffet Flat as a landmark in the community. He said that if the Commission chose to require that the laws be "strictly interpreted" in this decision, and no exceptions could be found, the Commission could expect that people, like himself who were involved in various community watch dog organizations (such as Friends of Central Oregon), would redouble their efforts in scrutinizing the Commission's activities in the future. Commissioner Throop said the Commission would appreciate these group's participation in any case since citizens involvement was the hallmark of the process, and the more involvement there was, the better the decisions would be. Mr. Vatcher said the desires of the public should not be overlooked, particularly when applying rules and looking for exceptions. He was concerned about his property values, but he was more concerned about the attitudes of people in the community with regard to individuality and the lifestyle of Buffet Flat. Commissioner Prante said she did not feel the adversarial attitude that he was expressing. She said this public hearing was part of the process, and she welcomed input to get an indication of the values of the community. She said the Commission was made up of PAGE 11 MINUTES: 9/25/90 ,105 - 0702 elected officials who genuinely wanted to hear what the public had to say. Then the Commission had to look at the laws and make the best decisions they could, not in the context of threats. Mr. Vatcher said that if he had come across adversarial, it was a major personality flaw on his part. Fran Greenlee, 63215 O.B. Riley Rd., Bend, said she had been a resident of the County for 28 years and supported strong land-use laws and LCDC. However, in this case, she requested flexibility. She felt Buffet Flat was a unique landmark business which deserved exceptional consideration. She wondered whether the State Highway Department had considered going around Buffet Flat. Loni Miller, 64931 Hunnel Road, Bend, said she lived near Buffet Flat. She said it was a really special place where she and her friends could go and not worry about being hassled. She said Buffet Flat offered a variety. She said people were able to find their home business because of its proximity to Buffet Flat, which brought business to them. Dan Fallon, 65431 73rd St., Bend, said he owned a small manufacturing business and had lived in Deschutes County for fifteen years. He said the key was the social value of the business, and asked the Commission for compassion in its decision. P.J. Thompson, Country Bills Antiques, Tumalo, testified that when they wanted to start a business in Deschutes County, that Mike and Gene were the only ones who helped. They had sent people to Buffet Flat, and Buffet Flat had sent people to them. She said the antiques were what people were looking for and numerous people came to the area for that purpose alone. Denise Oakey, 61137 Minaret, Bend, said she had just moved to Bend but had been visiting here for five or six years. Many of those trips included trips to Buffet Flat, and she appreciated being able to take children there. She said her son had done a school report on Buffet Flat, but it was lost when their house burned in August. She said many artists were misunderstood in their time, and requested that Buffet Flat be allowed to remain in Central Oregon. Rudina Thayer, 4732 SW Wickiup, Redmond, had moved here from Virginia and had read about Buffet Flat in a national magazine. She was an antique buff. She had found the people of Oregon to be unique, independent, colorful, individualistic, and felt the laws should reflect the people. She liked the Welcome Center which was also different. She felt Buffet Flat's current location was the right place for this type of business because it attracted people off from the highway. Dee Ford Potter, 45 NW Greeley, Bend, felt Central Oregon was a unique area and that was why people came to Bend. She said one of the definitions of folk art was "creating unique out of the PAGE 12 MINUTES: 9/25/90 105 - 0703 common." She felt Buffet Flat fitted in to that category. One of the definitions for "weird" was "fantastic." Richard Lancaster, 21555 McGrath Rd., Bend, said he lived a little north of Boonesborough and that Buffet Flats was a "good deal and everyone appreciated it being there." He said it was a place for everybody not just a chosen few. Sherry Katherine Dunn, 435 SE Reed Market Road, Bend, chose to move to Central Oregon because of the diversity of the area and the values that Bend offered. She said the presence of Buffet Flat in this community exemplified the "live and let live" attitude that a healthy community needed. Gary Bagwell, 17215 Guss Way, Bend, said he move to Central Oregon from Atlanta, Georgia in order to get away from "housing covenants, sign ordinances, and big brother coming down on the common man." He wondered if the business involved was Techtronics instead of two common men, if the Commission couldn't find some why to continue the business. Commissioner Prante said the County went through the same process for any business making application for a zone change. She said, "we may be inept, but we are clean." Commissioner Throop said Techtronics wouldn't even had made application because they would have known they couldn't even get through the door. He said the only reason the application was being considered was because an existing business was being displaced. Mr. Bagwell said that a lot more people went to Buffet Flat than the Welcome Center. Jeanne Corson, 594 SE Craven Road, Bend, said she wanted to mention the generosity of the gentlemen who owned Buffet Flat in supporting the community theatre. She felt the community was enriched by having a folk museum in the area. Karen Huck, 1351 Vicksburg, Bend, expressed the fear that the laws made in 1979, before the great growth of Bend, could be used until a big money speculator came in to develop something amazing, and then the laws would be changed. Rita Pearson, 63488 Silvis Road, Bend, said she belonged to a couple of nonprofit organizations in the community and wanted to thank Gene and Mike for their support. John Homan, 94 SE Myrtlewood, Bend, said he hoped the Commission would decided based upon the what their constituents wanted. Debbie Sharman, 2205 NE Division, Bend, said she had lived behind Buffet Flat for three years, and she agreed with everything that had been said previously. It would be a disaster if Buffet Flat was not allowed to exist as it had existed in the past. Lydia Gonzales, Box 883, Bend, said that as a colorful member of the community, she wanted to say how grateful she was that the PAGE 13 MINUTES: 9/25/90 05 - 0704 applicants were in Bend and supported their continuing in the community. Elvin Rickels, LaPine, said when he had friends come in from out- of-state, he took them to Buffet Flat. He agreed with everything else that was said. Michael Houghton, 5555 SW Young Avenue, Redmond, said he lived two miles north of Buffet Flat and was in support of the move. Nancy Conner, 20020 Glen Vista, Bend, said the community needed Buffet Flat, especially the antique store. Chair Throop closed testimony for the proponents and asked for testimony from the opponents. Mike Groat, 21675 Dale Rd., Bend, testified that he would not go to Buffet Flat. He said LCDC was started in 1967-70, and he had served on the planning commission working on that project. He said a lot of people did not like what they did. He said one of the reasons that LCDC came about was to give counties direction on what to do with land use. He said this was not a emotional project, it was a land use project. He bought property in Boonesborough because it was land use designed to stay rural. He said the Commission should define this project by the law of the state of Oregon, LCDC and County laws. These laws were passed by a majority of people who were, therefore, in concurrence that the law was correct. If the law was correct, then the commission must uphold it. Duane Clark, 19717 Mt. Bachelor Dr. #201, concurred with Mr. Groat. He said he wasn't against the Buffet Flat antique store, but his complaint concerned the violations involving the flea market. He said he turned the flea market in to the Planning Department a couple of years ago and was told that since the new highway was going to take it out anyway, they weren't going to act on it. He said there was land in Tumalo and Redmond that was cheaper to move to. He was also concerned about traffic problems. Tom Hacker, 64670 Jan Drive, Bend, said he was speaking on behalf of the Boonesborough Homeowners Association. He said if public debates in Central Oregon were decided by popularity, then the owners of Buffet Flat were well on their way to "edification and probably canonization." The media coverage was also strongly in favor of Buffet Flat. He said the real issues were getting obscured and hoped the County Commission would see beyond that. The real issue was whether the people of Oregon and Deschutes County had a right to preserve the character of their remaining rural resources. The Oregon Administrative Rules and the Deschutes County Comprehensive Plan were designed to protect the countryside from the mindless sprawl of fast food restaurants and gas stations and junkyards. He agreed and felt the others in the room agreed PAGE 14 MINUTES: 9/25/90 105 0705 with those laws. For that reason, exceptions to the County and state land management ordinance should be granted only when absolutely necessary, and then the proof of necessity rests squarely on those who requested such exceptions. He said the applicants had not proven their case nor had they demonstrated a willingness to the adhere to the ordinances designed to protect the local population. The proposed location was clearly not irrevocably committed to farm use. The conditions imposed by the County, granting Buffet Flat permission to locate on its present site, were never fulfilled i.e. paving and landscaping. Already the applicants had constructed improvements to the proposed location in violation of County regulations. The applicants' stated intent on a talk show was "to make the four-acre site a multi-colored OZ, blue and yellow rock outcroppings, dayglo lean- to. Whether or not the application is granted, damn the law, we're going Hollywood." He felt public safety was also an issue because the Highway 97-Deschutes Market Road was already a dangerous intersection, particularly on the east side. He did not feel that any of the improvements being make by the Highway Division would make it any safer. He asked if the people of Deschutes County were obligated to subsidize an individual, private business, because that subsidy was the heart of the Buffet Flat request. The public supports them but their numbers were too few to affect traffic in the area. Their business was vital to the community, but it did not generate enough income for them to afford space in a Rural Service Center or an urban zone. They wanted an edge; an advantage that other businesses in the County were not permitted. He felt that if there was so much support for Buffet Flat, their supporters should open their pocket books so the owners could afford to move the business to an appropriate area. The question was not if the business would be moved but where. He said this was not OZ, we were not Munchkins, he was not the Wicked Witch of the West, and Mr. Carsey and Mr. Craven were not Dorothy and Toto. We can click our heals as many times as we want and we're still in rapidly growing area and, desperately trying to maintain its natural rural beauty. He urged the Commissioners to preserve that rural setting. David Over, 64744 Sylvan Lp, Bend, said he wasn't against small businesses or Buffet Flat. He was against changing the zoning for Buffet Flat. He felt that after the move, the whole flea market and trailer court would be moved there. He said there were about 17 trailers at the site now, and asked if there were trailers, what would be required for sewers? Chair Throop asked for rebuttal from the proponents. Greg Hendrix said the State Highway Division had sent a letter indicating that the proposed move would create a better traffic situation than their current location because there wouldn't be direct access to the highway. Having the traffic feed through the arterial (Deschutes Market Road) was better than the current situation. He said that more than likely there would be an PAGE 15 MINUTES: 9/25/90 105 0706 overpass at some point in the future and access would come from a frontage road. Commissioner Throop asked what the extent of the Highway Division's help was in relocating the displaced business. Greg Hendrix said it was $10,000 since they currently did not own but leased the land. He said they had spent a good deal of this money on their appeal and attorney fees. Commissioner Maudlin asked where the buildings on the new site would come from. Mr. Hendrix said they were going to use the existing building on the new site. He said there would be no increase in the number of dwellings from those already existing on the lot. He said that the issue of people living at the site in trailers should be addressed during the conditions of approval. Commissioner Throop asked if the Highway Division was also reimbursing the owner for the land. Greg Hendrix said yes, the owner would be paid market value. He said the $10,000 was a cap for the reimbursement of the business, and the buildings were valued at $0. Rita Pearson, 63488 Silvis Rd., Bend, testified that she thought Boonesborough went in after Buffet Flat, and that it was surrounded by exclusive farm land. She saw it as an exclusive housing neighborhood that had been allowed to move into a farm district, and then didn't want anyone else to come in and detract from their home values. Gene Carsey Jr. said they hired a counter to count the cars coming into their business and United Pipe. He said they did it for five days, and that United Pipe averaged 70 cars a day including big trucks while Buffet Flat had 40 cars a day. On the weekend, Buffet Flat had more traffic, but then there was correspondingly less traffic from the trucks. He didn't feel that 40 cars a day would make a significant impact on the highway. He didn't feel the intersection was unsafe, and he crossed it 25 times a day. He said the maximum the State Highway Division would give for the relocation of a business was $10,000. Commissioner Throop said a prior witness had indicated there were a number of people living in trailers at the current site and asked him how many people were living at the site now. Mr. Carsey said there were six people that lived there. He said they were already running the flea market when a law was passed about five years ago. All existing businesses were allowed to register and were grandfathered so it was okay to continue. He said they were not asking for a trailer park at their new location. Loni Miller testified that a majority of the people in the Boonesborough area could not see Buffet Flat from their homes. She said the young people felt strongly about keeping things the way they were. She wanted Buffet Flat to be there for her generation's children. Rebecca Leone, 64586 Boonesborough Dr., testified that she was not in opposition to moving Buffet Flat across the highway. She said it was hard to image that a strict interpretation of all of the PAGE 16 MINUTES: 9/25/90 105 0 707 rules, regulations, and planning goals had been adhered to when other land use decisions had been made. She hoped that the Commission would follow the public support for this move and find a way to make this happen. She was sure the Commission had done that for "checkbook slinging developers." Commissioner Throop said that this was an exclusive farm use zone and he asked her to look at the decisions for the last few years so that she could see that those kinds of decisions were not made in exclusive farm or forest zones. Chair Throop asked for rebuttal from the opponents. Mike Groat testified that the reason there were land use laws was to protect people who buy property for the aesthetic value. It was wrong to change or bend the laws because of emotional issues. He felt there was a traffic problem there, and the road was too narrow. He said the applicants were already assuming they had won since they were already moving their business across the street and putting up signs and changing the buildings. He asked the Commissioners to maintain the current laws. Toni Hacker testified that no one on in Boonesborough was against Buffet Flat, but asked if the only solution available was a rezoning solution? He asked that the creativity used by the applicants be used in other avenues to find a solution other than making exceptions to existing ordinances. Chair Throop closed the public hearing. Kevin Smith asked to enter some support letters into the record: Suprise, DeAnn and David Mishler, Karen Ogle, Wendy Sexton, Kevin Mann, Loretta Stromeier, Mrs. Walt Howard, Fran Greelee, D. B. Stocker, Opposition letters were from William and Sara Skilling, and Mariann Overt. Commissioner Throop asked Rick Isham if it were more appropriate to address the Landscape Management Zone issues now or during the site plan review process if, in fact, these applications were approved. Rick Isham said there were two issues to consider. First, the Commission needed to look at the proposed site as a portion of a parcel which was in contiguous ownership where a portion of the parcel was not suitable for farm use. He said that this issue was recently decided by the Court of Appeals which indicated that in evaluating lands that were not suitable for farm use, you needed to look at the parcels in contiguous ownership as a whole and not in parts. Second, was what issues could wait for site plan review. In this particular case, when the threshold question was whether the lands were committed to non-farm uses, in order to reach any decisions beyond that point, particularly when you were condsidering changing the non-farm uses to which that land was committed, you would necessarily have to make assumptions with respect to the issues that would be raised under a Landscape PAGE 17 MINUTES: 9/25/90 105 * 0708 Management Zone or Limited Use Combining Zone in order to make a final decision. The Commission could probably proceed without those applications before them, but the Commissioners would have to make assumptions as to what those conditions would be assuming approval under those applications that had not been submitted. He didn't disagree with Greg Hendrix' argument, but he said that in order to approve this application, the Commissioners would have to assume that a variance application decision would have to be made in conjunction with the final decision. Commissioner Throop asked when the buildings would be destroyed, and Mr. Carsey said this December. Chair Throop stated that the Commission would take written testimony through 5 p.m. on Tuesday October 2, 1990, and then on Wednesday, October 3, the Commission would deliberate and make a decision on this issue. There would be no opportunity for oral or written testimony at that meeting. Chair Throop adjourned the meeting. DESCHUTES COUNTY BOARD OF COMMISSIONERS 0 is ristow Prante, Commissioner Toro Thr op, Chair ck Maudlin, Commissioner BOCC:alb PAGE 18 MINUTES: 9/25/90