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1990-37617-Minutes for Meeting November 14,1990 Recorded 12/17/199090-3'763'7 PUBLIC HEARING MINUTES BUFFET FLAT DELUXE 105 - 1563 1 . DESCHUTES COUNTY BOARD OF COMMISSIONER9 November 14, 1990 Chair Throop opened the meeting at 7 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, County Planner. Chair Throop announced that the public hearing was concerning the appeal of the hearings officer's decision on the Buffet Flat Deluxe relocation application. A public hearing had previously been held and a decision made, but the decision was rescinded because new information which was brought to the Board's attention was determined to be important enough to convene another public hearing. Chair Throop asked the Board if they had had any contacts which they needed to declare. Commissioner Maudlin said his only contact was a phone call from Mr. Fagen regarding the rezoning of the RSC zone on the western property, and he directed him to legal counsel. Commissioners Prante and Throop said they had had no contacts. There were no challenges from the audience. Chair Throop told the audience that any issues which were not raised in the local public hearing process would not be appealable to a higher level. Kevin Harrison gave the staff report. He said the hearing ha been reopened because of new information regarding the rezoning of Buffet Flat. He entered into the record a memo written to the Board from the Planning Department dated October 19, 1990, and a copy of the State Highway right-of-way map which was attached. The memo described how Mr. Fagen, the owner of the current Buffet Flat site, made the Planning Department aware of his purchase of the property in April of 1990 and of his desire to establish a new commercial use on that property. He had purchased the property for the purpose of developing a gas station and mini-mart on the site. The application by the Buffet Flat business owners for the rezoning of this east side parcel was filed with the Planning Department in May 1990. The current RSC zone contained approximately .8 of an acre, and the Highway Division was purchasing approximately 10,425 sq. ft. of that total for the highway expansion leaving .6 of an acre remaining in the RSC zone. These facts appeared to contradict some of the information which was submitted at earlier hearings. Mary Lauzon, ODOT Right-of-way Agent, gave the Commissioners a map which was a larger scale version of the map they already had, showing the area the Highway Division was purchasing, where the new pavement would be after the construction, where the road bed would be, and the buildings which were being purchased by the Highway PAGE 1 MINUTES: 12-14-90 (dCI~Cu J r X990 105 - 1564 Division. She said the $10,000 was for the costs of business relocation, and it was the maximum amount of money that a business could receive from the Federal Highway Program for receipted expenses involved with the relocation, i.e. improvements to a future business site, advertising, signage. They would also be paid the actual costs of moving the business inventory. Commissioner Prante asked how much the Highway Department had paid for the two buildings which were being destroyed. Ms. Lauzon said she was not allowed to discuss this with anyone other than the owners. Commissioner Prante asked when the Highway Department contacted the Carsey's concerning the purchase of the buildings. Ms. Lauzon said the Fagens (not the Carseys) had been contacted about the purchase of the buildings in September 1990. The business was identified as one needing to relocated over a year- and-a-half ago. The be relocation for Buffet Flats was started in December of 1989 when they were sent notice that they could get early moving,benefits. Commissioner Maudlin asked if the $10,000 would include the value of a lease hold interest they had in the buildings. Ms. Lauzon said that was not part of the relocation program. If they had any lease hold interest in the buildings, it would be dealt with as part of the acquisition of the property between the fee owners and the lessees. She said a total figure was offered to the contract purchaser/fee owners, and then any interests involved with the property were worked out between those parties. She said when there was a lease on the site, the Highway Division had the lessee sign a quitclaim deed releasing any interest they had in the property. No money would be given to the lessee for signing the quitclaim deed, so if the lessee decided he deserves some sort of monetary consideration for his interest, he had to work it out with the fee owner. The relocation was handled completely separate from the purchase of the property and any buildings. A quitclaim deed had not been signed yet because a settlement had not been reached with the fee owners/contract purchasers. Commissioner Prante asked when the buildings had to be vacated. Ms. Lauzon said the original, projected date that the Highway Division asked Buffet Flat to be moved by was November 1, 1990. Commissioner Throop asked Mr. Harrison to frame the test which this application would have to meet to be approved. Mr. Harrison said the critical elements were the criteria for a reasons exception which was detailed in the Oregon Administrative Rules (OAR) 660- 04-020 through 660-04-022. This OAR said an application had to meet four tests: (1) there are reasons which justify why the State policy embodied in the applicable goals should not apply, (2) that areas which do not require a new exception cannot reasonably accommodate the use, (3) that the long-term environmental, economic, social, and energy consequences resulting from the use at the proposed site are not significantly more adverse than would typically result from the same proposal being located in other PAGE 2 MINUTES: 12-14-90 105 - 1565 areas requiring a goal exception, (4) the applicant would have to demonstrate that the proposed uses were compatible with other adjacent uses or would be so rendered through measures designed to reduce adverse impacts. Greg Hendrix, attorney for the applicants, asked that the letter he had recently sent to the Board of October 25 and two letters on November 7, 1990, be included in the record. He said the main issue resulting in this public hearing was the west parcel was not owned by the family members of the applicants buy a third party, Mr. Fagen. There was also concern about when Mr. Craven, one of the applicants, briefly came into title on the west parcel. He said Mr. Craven purchased the west parcel which was the existing RSC zone on December 15, 1989, which was after notification by the Highway Division of the highway realignment, and after he researched financing the property. The sale agreement stated that Mr. Craven was to make a balloon payment of $143,000 on December of 1990. He determined during his research that he was not going to be able to find financing. The property had been on the market since March 1989, but because of the 2 year lease option for Buffet Flat no one was interested in leasing the property. So they decided to sell to Mr. Craven, if they could get the Buffet Flat lease released which was part of the deal. Mr. Craven paid $3,000 in cash to purchase the property. Instead of trying to buy Craven and Carsey out of their existing lease option, they merely turned the property over to them for that value so Mr. Craven and Mr. Carsey could market the property with no costs to the Balsheizer estate. Three days after the purchase by Mr. Craven, he listed the property with Bob Butler Realty. Neither Craven nor Carsey ever met with any buyers. Mr. Fagen purchased the property for $195,000. Mr. Hendrix stated that the law placed all risks of purchase on the buyer, and there was a disclaimer on the deed saying the seller was making no representations regarding the existing land uses and what was permitted on the property. A prudent buyer would make a sale contingent upon approval of a certain land use action. The property was sold to Mr. Fagen in April of 1990, and Mr. Craven was in title for less than four months during which Buffet Flat paid a higher rate on the interest balance than required for an additional cash investment in the property in hopes of realizing something out of the lease option. After closing costs and realtor fees, Mr. Craven netted $20,745 in cash and a $10,000 unsecured note. Taxes would take about a third of that, Mr. Craven had $3,500 in cash into the property, and there was a DEQ order on the property to remove and dispose of tires which existed before Buffet Flats took lease hold interest which was estimated to cost $1,800, which would leave a $7,000 cash profit and an unsecured note. Mr. Craven and Mr. Carsey were getting nothing from the State Highway Division for their lease hold. The $10,000 in relocation money from the State Highway Division had already been spent, and the business hadn't been moved yet. He submitted a letter from Mr. Everett, a commercial real estate expert, regarding the value of the remaining lease, which PAGE 3 MINUTES: 12-14-90 10~ 1566 he valued at $22,000, which was very close to what Mr. Craven and Mr. Carsey received for selling off their lease option. Mr. Hendrix gave the Board options of how to handle Mr. Fagen's concern: (1) wait for the application and look at the issue then, (2) deny development of a substandard parcel (which was what he said .6 of an acre of an RSC zone without public sewer and water would be), (3) allow development of the parcel after the highway improvement, (4) allow a variance so he could operate on .6 of an acre, (5) or allow him to expand the RSC zone. He wished they had made this information available to the Board sooner, but the information from the beginning was that his clients did not own the west property. Commissioner Throop said the ESEE requirement for a new RSC zone was that it have no more adverse impact on the area than on an area with zoning for the use. He asked how Mr. Hendrix would construct an argument to meet this test in the law. Mr. Hendrix said there could be considered a destruction of the existing RSC zone since there was only a substandard parcel remaining, and there were already two industrial uses on the east side of the highway. Even if some commercial activity were allowed on the west parcel, he felt they could easily meet the no impact analysis on the east side because of the existing character of that intersection. Commissioner Prante asked if when the parcel on the east side was purchased, whether the purchaser checked the zoning on the parcel? Mr. Hendrix said it was purchased in 1988, and he didn't know if Mr. and Mrs. Carsey Sr. had investigated the zoning. When he spoke with them, they knew the existing zoning was EFU. Commissioner Throop asked how he would frame a finding that would have the creation of a new RSC zone (rather than a transfer) be compatible with the surrounding area. Mr. Hendrix said he would rely upon the same arguments. The surrounding zone had a canal, a railroad, a major public highway and two industrial uses. Commissioner Prante asked if the property had been listed as commercial property? Mr. Hendrix said they used the current zoning which was RSC and MUA-10, but they made no representations to the buyers. Commissioner Maudlin said he felt it was required for any realtor to notify a buyer of any zoning considerations. He questioned Mr. Hendrix's previous testimony where he referred to "trading one rural service center for another" and where the Board asked if there would be any objection to the Board changing the zone on the west side of the highway from RSC to farm use. Commissioner Maudlin felt at that point one of the applicant's should have said, "I don't know, we sold that property." PAGE 4 MINUTES: 12-14-90 1® 1567 Greg Hendrix said at the previous public hearing when Commissioner Throop asked him about the $10,000, he said "it was based on the fact that the ownership of the land, which they have not had, they've had a long term lease on this ground . " He said he was trying to say that the applicants did not own the land and hadn't since before the application. Commissioner Throop asked what Mr. Hendrix meant in his testimony from the previous hearing he said, "so what you would in effect be doing, trading one rural service center for another, because of the state highway..." Greg Hendrix said he meant that the remaining rural service center was going to be a substandard parcel, and that it was up the Board of Commissioners to either continue a use there or not. Commissioner Throop said he interpreted the reasons exception criteria to mean the only why they could meet the no more adverse impact in that area and the compatibility requirements would be if the RSC zone would be, in effect, trading one rural service center for another. Regarding what Commissioner Maudlin had said concerning the liability of the owner to the property buyer, Mr. Hendrix said as a lawyer who did a lot a real estate litigation, he would be comfortable defending Mr. Craven in a situation like this. Chair Throop asked for testimony in support of the application. Gene Carsey, one of the applicants testified that one of the reasons there may have been a misunderstanding was because he never considered that they owned the place. They were there for 15 years but owned it for only three months "by a freak of fate. " When they sold the property to the Fagens, it was zoned RSC, and they expected it to continue to be commercially zoned. They had a long- term lease but knew they would never be able to buy the property. He brought with him drawings of the proposed Buffet Flat. He said there would be little impact from Highway 97 since there would be numerous scrubs and trees. It included only existing buildings. Mark Becker, 60105 Sterling, Bend 97702, felt it was important that this business not "fall through the cracks." He wanted this business to survive. He felt Mr. Fagen's problems were not relevant, and felt the County staff should have investigated this issue more thoroughly. He didn't feel there was any deception involved. Robert Wilson, 65640 78th Street, Bend, 997701, said he started working at Buffet Flat on the day the Board decided to allow the zone change. He wanted to keep his job and was looking forward to the grand opening. Sue Price, 2261 NW 7th, Bend, 97701, supported Buffet Flat and felt the problem was just a case of misinformation. She asked if when the Board made their decision to allow the rezoning for Buffet Flat, it had left a substandard parcel of .6 of an acre on the PAGE 5 MINUTES: 12-14-90 195 - 1568 current location. Commissioner maudlin said the Board did not know the size of the remaining parcel at the time of their decision, but one of the conditions of the zone change was that the remaining parcel be rezoned for farm use, and that condition could not be met because the new owners would not agree. Commissioner Throop said that exchanging one RSC zone for another would not have created additional adverse impacts as would the creation of a new RSC zone. Ms. Price wondered what could be done with the remaining property. Carol Routh, 9415 S Hwy 97, Redmond, 97756, testified that she did not see Buffet Flat as having a significant adverse effect on the new site because of the area surrounding it. She said the site wasn't big enough to make a living by farming. It was an environmental business and she wanted to see it remain. Harry Fagen, 53 NW Tumalo Ave, Bend, said he purchased the Buffet Flat property on the west side of the highway with the intent of putting in a convenience store. It was supposedly 1.44 acres and what he wanted to do would take just under one acre. He was not opposed to Buffet Flat being across the highway as long as they didn't take the commercial zoning with them. Rick Isham said from the County's paperwork, the RSC zone appeared to be smaller than the minimum lot size. The ordinance did allow development under some circumstances on lots under the minimum lot size. There was confusion on the remaining lot size since the original approval of the RSC was smaller than they had thought. Kevin Harrison said the determination of whether they met the minimum lot size in an RSC zone would only be made when new lots were created. If Mr. Fagen did not apply for a land division, his land would continue to be zoned RSC, and he could develop within that zone. Commissioner Maudlin asked how the surveyor arrived at the 1.44 acres? Mrs. Fagen said that Dana Bratton and Bancroft both came up with a survey amount of 1.44 acres. Rudi Thayer, 4732 SW Wickiup, Redmond, testified that what was being asked for was a change in sites not an exchange. She felt there should be some flexibility in each County for this type of concern. She felt this was a perfect place for a commercial intersection. Commissioner Throop said that Deschutes County Comprehensive Plan, the state policy, and the Highway Division discouraged that kind of commercial, urban development which was supposed to be inside the urban growth boundary unless it was a preexisting use. Mary Lou Dennis, 20294 Murphy Road, Bend, said Bend had changed a lot since she moved here in 1982. She wanted to see Buffet Flat stay in the Community and felt many of the small businesses where no longer able to compete. Loni Miller, 64931 Hunnel Road, Bend, said Buffet Flat was important to her as a rural store. It was sad to see the small businesses in jeopardy because of the development in the community. PAGE 6 MINUTES: 12-14-90 10S 1569 Wendy Sexton, 706 NW Ogden, Bend, spoke as an antique business owner from Trivia Antiques. She didn't feel that the owners of Buffet Flat had "tried to pull any wool over the Commissioners' eyes." The business was viable and needed to be there. Both Buffet Flat and Mr. Fagen's business would be complimentary to the area. Warren Neihart said the applicants were trying to do it legally as opposed to many citizens of Deschutes County. He felt it would be appropriate for Commercial Zoning on both sides of the highway. Chair Throop asked for testimony from the opponents. Duane Clark, 61613 Summer Shade Drive, Bend, said he remembered when the west side property was an old gas station and adult book store. He said the land they were requesting to rezone had been farm land for 70 years. He did not think the RSC zone should be expanded. He didn't feel it was the County's responsibility to make land use changes because the applicants didn't have the money to keep their businesses operating. The decision should be made according to the law. Dick Uhlir said he was an opponent only because he opposed the location where Buffet Flat wanted to move. He liked Buffet Flat but didn't feel it was a good location for the flea market because of the traffic congestion. He wanted them to move to a location where they could continue in operation "beyond the path of progress." Mike Groat, 45-1/4 NeqPort, Bend, 97701, said the LCDC set these rules and regulations for land buffers and asked that the Board following the rules. Tom Hacker, 64670 Jan Drive, Bend, said he was president of the Boonesborough Property Owners Association and was speaking on behalf of the association. They were concerned about the growing level of commuter traffic on Deschutes Market Road. The widening of Highway 97 would force those turning south at the intersection to cross three busy lanes of traffic, and those heading east across the intersection to Tumalo would have to cross five lanes of traffic. He would like to see a formal study to guide decisions on nearby commercial development. He brought up concerns about the seeming immunity that Buffet Flat had to county ordinances, i.e. flea market extended beyond the RSC, conditions for paving and landscaping were never met, illegal trailer park. He asked that the Commission investigate and report on those charges before inviting further violations at a new location. He said no secret had been made of the applicants intent to deviate substantially from the rural character of the area, whether or not the application was approved. He said construction on a large brick heart had already been started at the northwest corner of the PAGE 7 MINUTES: 12-14-90 105 - 1570 proposed location without a building permit. 92% of the adult residents within their subdivision did not favor the approval of the Buffet Flat application. He asked where the exceptions to the county and state law would end. He felt an approval would set a precedent for conversion of moderately priced agricultural property to commercial property. Commissioner Maudlin asked Mary Lauzon, State Highway Division, if the traffic pattern would be better if Buffet Flat moved to the east side location because there would no longer be direct access on Highway 97. She said the letter addressing this issue was from Steve Wilson, Traffic Engineer for the Highway Division. The letter said that by making the property owners use the intersection, the intersection would be used in the correct manner. Commissioner Maudlin said if there were commercial zones on the east and west sides of Highway 97, what affect would it have on the intersection. She said she was not a traffic expect, but her personal opinion was that because of the nature of the businesses, she didn't feel there would be a big impact. The Buffet Flat business would be primarily weekends while the others were mostly weekday businesses. The west side property would have to access Highway 97 off from Deschutes Market Road. Chair Throop asked for rebuttal testimony. Gene Carsey said their store would generate 30-50 cars a day which would have a negligible impact on the traffic of the area. He clarified that the heart-shaped construction on his property was an improvement to an existing pond. There was no opponent rebuttal, so Chair Throop closed the public hearing. Commissioner Prante said it was difficult to look at the aerial photograph and still consider the area as rural. She no longer supported any flea market activity if the zone change were granted. Commissioner Maudlin felt the legal ground for the previous decision "had been cut from under our feet." He didn't feel the parcel on the west side could be down zoned, and therefore the criteria could not be met to change the zoning on the east side parcel. Commissioner Throop said the question before the Board was whether the law would allow the Board to expand the RSC in this region. He said that it did not, since the reasons exception could not be met for no more adverse impacts and for compatibility in the surrounding area. Since they no longer had the ability to move the RSC zone from one side of the highway to the other, he didn't see a legal way to approve the application. He said when the west side parcel was sold, the commercial rights were sold with it, and therefore could not be transferred to the east side parcel. PAGE 8 MINUTES: 12-14-90 105 • 1 571 Commissioner Prante said she didn't feel that compatibility was an issue given the surrounding commercial businesses, and that the adverse impact could be argued either way. MAUDLIN: I would move that we rescind previous approval and find that we cannot legally approve a second RSC zone. PRANTE: Second. VOTE: PRANTE: NO THROOP: YES MAUDLIN: YES Chair Throop said this was the most painful vote he had made in four years, but he was sworn to uphold the law and couldn't find a legal way to approve the application. DESCHUTES COUNTY BOARD OF COMMISSIONERS Toner BOCC:alb PAGE 9 MINUTES: 12-14-90