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1991-10009-Minutes for Meeting March 27,1991 Recorded 4/12/19910106 0'789 91-10009 _ MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS r March 27, 1991 Chairman Maudlin opened the meeting at 10 a.m. Board memb6ks"In attendance were Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were Rick Isham, County Counsel; Bruce White, Assistant Legal Counsel; Dave Hoerning, County Engineer; Sue Stoneman, Community Corrections; Julie Dotson, Mental Health Program Manager; Paul Blikstad, Planner; George Read, Planning Director; and Karen Green, Community Development Director.,r.V~,~a 1. CONSENT AGENDA Consent agenda items before the Board were: #1, approval of amendment #25 to the 1989-91 Intergovernmental Agreement with the Mental Health Division; #2, appointment of Al Dirtenger and marilyn Schiel to fill unexpired terms on the Mental Health Advisory Committee; #3, approval of request for out- of-state travel for Jail Facility Commander to attend American Jail Association Conference; #4, signature of Tax Refund Order 91-045; #6, appointments of Cheryl Graham, Jerry Moore and Fred Ehman to Black Butte Ranch Service District Budget Committee; #7, approval of dumping fee waiver for the Natural Resource Center; #8, signature of MP-90-12 creating two parcels on NW Helmholtz in Redmond for the Graves; #9, appointment of Ted Schassberger, Marvin Young and Cathie Gerlicher to 9-1-1 County Service District Budget Committee; and #10, signature of Condominium Plat for Aspen Glen Townhomes, Phase I, on Purcell Blvd for Brad Hoover. THROOP: I'll move approval of consent agenda items 1-10. SCHLANGEN: I'll second that. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. PUBLIC HEARING: ORDER 91-041 ANNEXING TERRITORY TO SISTERS- CAMP SHERMAN RFPD Before the Board was a public hearing on Order 91-041, a final order annexing territory to the Sisters-Camp Sherman Rural Fire Protection District. Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. THROOP: Move signature. SCHLANGEN: Second. PAGE 1 MINUTES: 3/27/91 0106 0'790 VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 3. PROMISSORY NOTE FOR SECURITY OF IMPROVEMENT AGREEMENT Before the Board was a request for approval of a Promissory Note in the amount of $8,800 as security for an Improvement Agreement between Terry Ratzman and the County. The Improvement Agreement related to the installation of required improvements to existing public right-of-ways to be constructed on Arthur Avenue pursuant to City of Bend Site Plan approval S-79-90. Since there was no collateral for the promissory note and the property was within the City limits, the County requested a letter from the City indicating their agreement to withhold water and sewer service to the site should Mr. Ratzman fail to fulfill the terms of the note. This item would be addressed again by the Board should agreement be reached with the City of Bend. 4. COMMUNITY CORRECTIONS PLAN Before the Board was signature of a letter to the Community Services Division of the State Department of Corrections approving the Deschutes County Community Corrections Plan as recommended by the Community Corrections Advisory Board. THROOP: I thought it was a great plan, and I would move approval of the Community Corrections Plan. SCHLANGEN: I will second that. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 5. WEEKLY WARRANT VOUCHERS Before the Board was approval of the weekly warrant vouchers in the amount of $269,801.29. SCHLANGEN: Move approval upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 2 MINUTES: 3/27/91 0106 0'791 6. 7. MEEKS FEE WAIVER REQUEST Before the Board was a request from Steven Meeks of Meadow Crest Acres for a waiver of his conditional use permit fee ($330) for a dwelling. George Read estimated that if several parcels were grouped together when the conditional use permits were requested, there would be a reduction in the Community Development Department costs. The notice alone would cost approximately $100. Once in the past they had done conditional use permits on four parcels at the same time which were owned by the same person for the cost of one permit which was $270 at that time. However, five or six others were done in the area individually, and each parcel owner paid the current $330 permit fee. Commissioner Schlangen said Mr. Meeks had previously paid $270 for another parcel and did not want to pay anything for this permit since another property owner had gotten permits for. four parcels for one fee. Commissioner Throop said the costs to the County were obviously greater when there were individual requests versus group requests. THROOP: I move that we have two options: one is we'll look at reduced costs if you package, two if you come single, you pay the full fair. SCHLANGEN: I'll second it. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES The reduction would be $100 dollars off the $330 for each parcel which was submitted in a group of two or more. George Read clarified that this reduction would only apply to this subdivision. The Board agreed. TEEN PARENT SERVICES SUPPORT LETTERS Before the Board was a request from Julie Dotson for support of Teen Parent Services grant applications being submitted to the Fred Meyer Memorial Trust and The Oregon Community Foundation. The Board agreed that they would send support letter for these two grant requests and any that might be needed in the future. THROOP: I'll definitely move signature for the support letters. SCHLANGEN: Second. PAGE 3 MINUTES: 3/27/91 . 0106 0'792 VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 8. CENTRAL OREGON REGIONAL STRATEGY The Board of Commissioners determined that Chairman Dick Maudlin would be Deschutes County's representative for the upcoming round of the Central Oregon Regional Strategy since he was the liaison to the Central Oregon Intergovernmental Council which the Board was recommending to handle the administrative work for the regional strategy. 9. PUBLIC HEARING: APPEAL OF PUBLIC ACCESS REQUIREMENT ON CONSERVATION EASEMENT Before the Board was a public hearing on an appeal by Donald Porter of the County Planning Commission's decision to require public access as part of a Conservation Easement for the division of a 120-acre parcel into two lots in an F-2 zone. The subject property was located near South Century Drive east of Fall River Estates and was described as 20-10, tax lot 1606. Paul Blikstad gave the staff report. The variance, conditional use, and major partition applications went before the County hearings officer on November 6, 1990. For this hearing, the staff had recommended approval of these applications subject to the applicant conveying a Conservation Easement and a Trail Easement to the County along the entire length of Fall River. The Trail Easement was intended to clarify the public access portion of the Conservation Easement. The hearings officer's decision didn't include the Trail Easement condition. When contacted, the hearings officer said she had intended to leave the Trail Easement condition out of her decision. Based on that, the Planning Commission called up the hearings officer's decision for review at a hearing on January 23, 1991. The Planning Commission's decision amended the hearings officer's decision by requiring public access as part of the Conservation Easement on the east and south sides of Fall River and clarified that the Conservation Easement would be on both sides of the river which hadn't been clear in the hearings officer's decision. The applicant had indicated the loss of privacy and value of the property as the reasons for not wanting public access within the Conservation Easement. The Planning Commissioner found that the applicant had not demonstrated a sufficient loss of privacy or loss of value to outweigh the public benefit of requiring the public access. The applicant had stated that the property had been vandalized and litterred and feared that the existing cabin could be PAGE 4 MINUTES: 3/27/91 0106 0'793 damaged by the public access, however, there was no evidence in the record that vandalism had occurred. The Planning Commission did limit the access to the south and east sides of the river to mitigate any impacts which might occur on the cabin. Public access as addressed in the County Comprehensive plan was found to be a very important element in the future economy and quality of life in Deschutes County. Commissioner Maudlin asked if the Trail Easement was discussed in the ordinance. Bruce White said that Ordinance 86-054 was passed in 1986 as a result of the River's Study and set forth that Conservation Easements were required as a condition of approval of all land use actions involving property adjacent to the Deschutes River, Crooked River, Fall River and other rivers. Conservation Easement was defined to include public access as one of its purposes. It stated that the forms of the Conservation Easement would be as described by the County and might contain such conditions as the County deeded necessary. In this case, the Trail Easement was an implementation of public access that was allowed by the ordinance in a form as proscribed by County Legal Counsel's office. It was an attempt to fit what had been described by state statute. He felt the Trail Easement language was developed as a result of a Conservation Easement and public access Easements which were done on the Fred Gunzner's property and was developed with his counsel, Dave Jaqua. Bruce White said applicant had raised the questions of whether this might be a situation that could be considered a "taking" of the property. The applicant raised the case of Nolan v. the California Costal Commission which was decided by the U.S. Supreme Court in 1987. The decision stated that when a public body required, as a condition of approval of a land use application, that the applicant give away some kind of possessory rights, then the condition should be closely related to the impacts which were going to be suffered as a consequence of allowing the proposed land use to go forward. Chairman Maudlin opened the public hearing. Bob Lovlien, attorney representing the applicant, Don Porter, said that based upon the evidence before her, the hearings officer decided that a Trail Easement would not be appropriate. He felt that in the ordinance, the Trail Easement was not mandatory but something the County could do. It was clear that the County was now considering the Conservation Easement as a Trail Easement on all of the rivers. They were prepared to challenge that on the basis on the Nolan case. He gave the Commissioners and Legal Counsel a written statement from Don Porter outlining their position with respect to this issue. He expressed concern as to whether this public hearing was the appropriate forum to argue PAGE 5 MINUTES: 3/27/91 0106 0'794 the merits of whether the Nolan case applied in this situation. He also wanted to address the practical issues the applicant saw with respect to the Trail Easement. The applicant was only one-eighth of a mile from the Fall River Estates Subdivision which had a number of permanent and part- time residents. Between Mr. Porter's property and the subdivision was a quarter section of land owned by the Forest Service. The Trail Easement would give the public the right to a trail along the entire length of Fall River all the way through Mr. Porter's property. The existing cabin was only 35-40 feet from the river, and there was no part of the river that couldn't be crossed with hip boots. Also on the southwest corner of the 40 acre parcel, there was a large elk bedding area. They did not have a problem with the Conservation Easement for purposes of preserving the river and suggested the elk bedding area be included in the Conservation Easement for their protection. He said there was a letter in the record from Mr. Porter which indicated that there had been vandalism in the past at his cabin even though signs were posted and there was some fencing. The applicant was concerned about the invasion of his property by people throughout the length of the river if there was a Trail Easement. They felt there was substantial evidence to why a Trail Easement would have a very negative impact on this property. Commissioner Throop asked why a Trail Easement might be appropriate for a destination resort but not for a 120 acre parcel which was being divided into two parcels, which would create a checkerboard trail system? Bob Lovlien said they felt it would be a "taking" to require a 10 foot public access trial the full length of Mr. Porter's property for a simple partition. He agreed that the trail system would be piecemeal with out it. Commissioner Throop said there were hundreds of parcels in the County which were served by Forest Service roads. In order to approve a variance to the road standards, there needed to be something special or unusual, and he asked what was unusual or special about this situation. Bob Lovlien said these properties were landlocked and were surrounded by Forest Service property. The applicant did not own the road through Forest Service land, and therefore would not have any authority to do anything to the road. The road standards for a partition when the properties were larger than 20 acres was only a 20 foot graded road. Commissioner Throop asked if there had been any discussions with the Forest Service about meeting the road standards. PAGE 6 MINUTES: 3/27/91 0106 0'795 Bob Lovlien said the 20 foot graded road standard was not a problem, it was the question of public right-of-way that was required as part of the standards. He said there had not been any discussion with the Forest Service regarding the standards for the road. He said they had talked with the Forest Service in other instances regarding making the road a public right of way, and the Forest Servicd was not willing to do that. He said the County had generally allowed an exception to the public right of way standard when there was a landlocked piece of property or property which was accessed via Easements. Commissioner Throop asked if the Forest Service had this policy because they did not want to see the property divided. Bob Lovlien said they could probably get permission from the Forest Service to improve the road to the 20 foot graded standard. The problem was the public right-of-way issue since the Forest Service didn't want to dedicate their land to the public for road right-of-way purposes. Commissioner Throop said this property was in a primary forest zone, and the County had received criticism for the number of land divisions it had allowed in primary farm and forest zones. He asked why it was appropriate to divide this parcel which was in a productive forest zone. Bob Lovlien said the applicant wanted to sell part of the property. The applicant was managing the forest resource mainly to enhance the fisheries in the area. There were two other 40 acre parcels immediately adjacent to the property which were also privately held. Commissioner Throop said the policy of the State and the County comprehensive plan was to try to maintain those productive parcels in economic units. They needed to address some standards and criteria before a division could be made. If divided, what would the parcels be used for? Bob Lovlien said Mr. Porter would maintain his cabin on one parcel. The other would be subject to whatever the F2 zone would allow. It would not be lost to forest productivity since any dwelling would have to be placed on the least productive portion of the land, and the balance would have to remain in forest use. The area would not be worth very much for timber production and would be most likely maintained in its current condition. He didn't think it would ever be "productive forest land" since it would probably never be harvested due to its proximity to the river. Commissioner Throop asked if this parcel had a forest management plan on it? PAGE 7 MINUTES: 3/27/91 010 6 0'796 Mr. Porter said he had a reforestation management plan on this parcel. Commissioner Throop asked if this application could result in this parcel being converted to a non-forest use? Bob Lovlien said yes with respect to a residence, but he quarrelled with how productive this area was as forest land because of its proximity to the river. He said it was a "preservation" area not a "productivity" area. Chairman Maudlin said he thought the only issue under review was Conservation Easement/Trail Easement. Commissioner Throop said this was a de novo hearing and there were three applications before them. The Board was not limited to that one issue. Bob Lovlien said the only issue they addressed at the Planning Commission level was the issue of the Trail Easement. Commissioner Throop said the ultimate responsibility for the management of the comprehensive land use plan fell on the Board of Commissioners. Don Porter, applicant, said his property was a total of 120 acres of which 115 acres were in reforestation. They had planted 2,000 trees last year and planned to do so again this year. His sole intent for the property was to keep it rural and to take out jack pines to eliminate the beetle problem. The prospective buyer wanted to build a house on the 40 acres and wanted to leave it in a rural state. The Department of Fish and Wildlife had been contacted, and they were willing to put more trees into the river to provide more fish habitat. He said Fall River was not navigable. Commissioner Throop asked if Mr. Porter would be willing to place restrictions in the deed before selling the property requiring that it not be converted to a nonforest use, e.g. there not be an application for a nonforest dwelling, there be a requirement that there be an application for a forest dwelling, that there be a forest management plan, and that the objectives which Mr. Porter had for the property be continued. Mr. Porter said the prospective buyer wanted property in a rural area. Commissioner Throop asked if there would be some legal means in the transfer to a prospective owner to make certain that Mr. Porter's management objectives for the land were retained. Mr. Porter said he would have no problem with stating that the property had to be maintained in reforestation. PAGE 8 MINUTES: 3/27/91 0106 0'79'7 Commissioner Schlangen asked what public accesses to Fall River already existed in this area, and they were pointed out to her. Commissioner Throop said that since the Board adopted the Ordinances implementing the River Study, the County had a practice of requiring public access or Trail Easements along with Conservation Easements on land use applications. If it wasn't appropriate to have public access on a certain portion of the property, the County required public access on an alternate portion of the property. He asked if there had been any discussion with the applicant about finding an alternate access site. George Read said that in the past there was some confusion since the definition of Conservation Easement included public access, but public access wasn't necessarily made a requirement. In the last couple of years, they had stated that public access was part of the Conservation Easement. They had worked with applicants in the past to find language which was acceptable. He said that at the Planning Commission, Bob Lovlien suggested a compromise position to allow access on the southerly portion of the property adjoining the National Forest along the 40 acre parcel being created and would end where the river headed north into the property. Commissioner Throop asked if that compromise was still being offered by the applicant. Bob Lovlien said that Elizabeth Myer had divided her property down river from this parcel in November 1988, and her Conservation Easement specifically precluded public access. Therefore he said requiring public access was a recent change. He asked for a short recess for discussion with his client. After the recess, Bob Lovlien continued that the biggest problem was the north/south extension of the river, and he pointed out their offer on a map. Mr. Porter said that the cabin Mr. Lovlien was talking about was built in about 1890. He said there were two log cabins on the property. Commissioner Throop asked whether they would consider a Conservation Easement along the opposite side of the river from the dwelling. Bob Lovlien said that was the recommendation of the Planning Commission which they were appealing. Mr. Porter said the public would be able to come within rock throwing distance of the cabin with that proposal. PAGE 9 MINUTES: 3/27/91 0106 0'798 Commissioner Throop said there wouldn't be any kind of publicity if a public access Easement were required along the applicant's property. The Board was looking toward the future when there would probably be a trail system along the Deschutes River and its tributaries. He felt the Board should not be making decision now which would preclude the option of having a trail system in the future. He said it was the policy of Deschutes County to preserve the riparian zone along the river and to provide public access to these public resources. George Read said he had heard Mr. Porter say there was another dwelling on the property which the Planning Department was unaware of. Mr. Porter said there were actually three buildings on the property, two were livable: the cabin that was across the way built in the early 1920s and the original cabin on the 120 acres which was built in about 1890 which was just a storage shed. The other cabin was just used for guests and did not have a kitchen or septic system but an outhouse. There had only been about three people that have stayed there in the last ten years. Commissioner Throop asked if an additional dwelling on the property changed anything. George Read said a partition application was required to show all dwellings and, to his knowledge, only one was shown on the partition for this property. He did not know whether these additional dwellings would make a difference in their decision on the application, but he did want to consider it again in light of the new information. Bob Lovlien said that Mr. porter lived in one cabin while the other cabin was basically there for historical purposes. People could sleep in it but it was just a shack. Only the one cabin was habitable and it had a septic and water system. Commissioner Throop asked if a grandfathered outhouse was the same a modern septic system? Karen Green said she felt with the new information, the record should be left open for further investigation. The zoning ordinance defined "dwelling" as a place where people sleep and did not refer to bathroom or kitchen facilities. The outhouse probably was a grandfathered, permitted privy. Commissioner Schlangen said before the next hearing, she would like to see a map of where all of structures were on the property and a map of the alternative access proposed by the applicant. PAGE 10 MINUTES: 3/27/91 0106 0'799 Chairman Maudlin said the Department of Fish and Wildlife had submitted a letter stating that applicant's property was critical habitat for elk use during the winter season, however they later said they would like to see the applicant provide public access Easement along Fall River. He felt allowing the public into this area would negatively affect the wildlife. It was also brought out in the hearing that the soil type in this area was considered fairly stable except for the area adjacent to the river which was where a Conservation Easement would be. He read from the Planning Commission hearing record where Eric Dolson said, "thirty years from now there's going to be a black top trail put through there and we need the dedication and Easement." He felt this was a ridiculous idea He felt a Conservation Easement on Fall River and Spring River was necessary but a public trail system on these fragile rivers was not the way to go. Commissioner Throop that if within that ten foot strip above the water line there was not an appropriate spot for a trail then the County should work with the land owners to find alternative routes, but he felt public access was appropriate. Bruce White suggested leave the record open for advice from the Department of Fish and Wildlife as to where the most location of the Conservation Easement should be. Chairman Maudlin announced that the public hearing would remain open for written comment until 5 p.m. on Friday, April 5 and that the decision would be made on Wednesday, April 10 at 11 a.m. DESCHUTE COUNTY BOARD OF COMMISSIONERS To Throop, mmissio er Nancy Pope chl ngen, Commissio er udlin, hairman BOCC:alb PAGE 11 MINUTES: 3/27/91