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1991-10240-Minutes for Meeting April 10,1991 Recorded 4/18/1991si-102040 . 0106 0883 MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS' April 10, 1991 _ t~_`^tr Chairman Maudlin called the meeting to order at 10 a.m. Board members in attendance were Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were Dave Hoerning, County Engineer; Paul Blikstad, Planner; George Read, Planning Director; and Brad Chalfant, Property Manager. ,V,J`-,0F1LMEb 1. CONSENT AGENDA APR 21. 1991 Consent agenda items before the Board were: #1, award of contract for base and paving for NW 43rd Street to low bidder, R. L. Coats; #2, signature of Resolution 91-018 accepting petition to vacate a 30-foot parcel of land, Engineer's Report, and Order 91-046 setting a public hearing for May 22, 1991; #3, signature of Resolution 91-026 appropriating the Public Transit Division Grant Funds received from the State of Oregon; #4, signature of Development Agreement for a Condominium Development adjacent to Sunrise Village for the Everts; and #5, signature of Personal Services Contract with Oregon Psychological and Consulting Associates for Employee Assistance Program. THROOP: Move approval of the consent agenda items 1-5. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. MODIFICATION OF HI-TEK TRUSS, INC. LOAN Mike Burton, COIC, came before the Board to present a modification of the proposed Hi-Tek Truss, Inc. loan package approved last fall. One of the conditions at the time was that the entire finance package come together. The company had come up with a finance package totaling $1,299,000, but the structure of the package was different that what the Board had approved. The Board decided to review the new package in depth at their work session on Monday, April 15, 1991. 3. PUBLIC HEARING: ORDER 91-027 VACATING PORTION OF ROY L. KIDDER ETAL ROAD Before the Board was a public hearing concerning final Order 91-027 vacating a portion of Roy L. Kidder Etal Road. PAGE 1 MINUTES: 4/10/91 0106 0884 Dave Hoerning gave the staff report indicating the County initiated the vacation and sent out preliminary letters on February 5, 1991, to the utility companies. On February 27, 1991, the Board accepted the petition and Engineer's report. Prior to March 11, 1991, they mailed a notice to utility companies, municipalities, property owners and interested parties on the vacations, and a notice was published in the paper March 21 and March 31, 1991. The property proposed for vacation was owned by Deschutes County, and a portion of the right-of-way was adjacent to the Deschutes River. Access to all properties was available from other roads. He felt a portion of the right of way should be retained in public status to provide better access to the Deschutes River. The Oregon Department of Fish and Wildlife expressed concern that the vacation could eliminate anglers and wildlife watchers from access to portions of the Deschutes River below Lower Bridge which was already limited. They were not opposed to limiting access to pedestrians only. Dave Hoerning said the road went down to where the irrigation pumps were and the road turned away from the river. He proposed building steps over the side of the gate for pedestrian access. There was a conservation easement along both sides of the river which included public access to the Section 9/Section 16 line. He said there was space for parking on both sides of the road in the area before the gate. Eric Schultz from the Coalition for the Deschutes had responded in writing that the road should not be vacated for the sake of public access to the river and BLM land to the north. It was an important leg of the proposed trail from Wickiup to Lake Billy Chinook. Bill Marlett, Coalition for the Deschutes, had responded in writing in opposition to the vacation since the road was used extensively by the public for recreation. Mr. Marlett agreed that the road should be closed to hunting and motorized vehicles. Mike Ogle, Central Oregon Fly Fishers, had responded in writing that the road was an important right of way for the public and suggested extending it to the BLM property. Craig Lacey, with Oregon Trout, wrote expressing opposition to the vacation saying it was a violation of the river ordinance, and public access to the river needed to be protected. Chairman Maudlin opened the public hearing for testimony. Commissioner Throop said that there had been a public meeting in the Terrebonne area last fall regarding road vacations in the lower bridge area. He said that what Dave Hoerning had proposed was the consensus from that meeting. However, he thought the canyon area, with a stream running through it, had also been designated as being open to the public. Dave Hoerning said he didn't see any reason why the public needed to go into the canyon since the best access to the river came before that area. PAGE 2 MINUTES: 4/10/91 0106 0885 Bob Caine, 2065 NE Shepherd Rd., Bend, testified that he was one of the owners of the property that started 200 feet above the section line for Section 16. He said starting from their irrigation pumps up to where the road crossed and blocked the canyon, there was no existing road or tracks and was impassible. He said that the road stopped at the pumps, and it took a four wheel drive vehicle to get to the pumps. He said the conservation easement only went to the Section 16 line. The people who did the subdivision in this area granted the conservation easement, but they could not have granted a conservation easement on his property. He felt the bulk of the road right of way was outside of the easement that was granted and, therefore, there was private property between the easement and the road. At the bend in the river where the road came very close to the river, he thought it might be more than 10 feet above the high water mark since it was substantially higher than the river. Again there might be private property between the ten foot mark and the road. He thought his property rights went to the center of the river since this was not a navigable section of the river. Commissioner Throop said the County would disagree with him on that point. Commissioner Maudlin asked who owned the property from Section line 16 from the bridge north to the Section line between 9 and 16. Franklin Nolan raised his hand. Commissioner Throop asked Mr. Caine if he had a position on whether or not the public should have access to the river. Bob Caine said the public should have access to the river as long as they didn't have to trespass on private property. Commissioner Throop asked Mr. Caine whether he would be willing to provide the public with access across his private property if it were determined that he owned a 2-4 foot unusable section of land between the conservation easement and the road? Bob Caine said they'd be willing to discuss it. Commissioner Throop asked what the conditions would be under which he would make that decision. Bob Caine said "whatever came out of the discussions." Commissioner Maudlin asked if where the road turned back to the west was the area where the road nearly reached the river. Dave Hoerning said where the road turned to the west, the right-of-way actually "flopped out into the river." PAGE 3 MINUTES: 4/10/91 0106 0886 Chairman Maudlin asked how far it was from the river to the road right-of-way at their property line at 200 feet above the section line? Dave Hoerning said from the center of the road to the edge of the river was probably 150 feet. Bob Caine said that they would like to see the section from the pumps into the canyon closed. They pumped water out of the spring running through the area for farm irrigation. Under the existing situation, there was fairly regular vandalism at the pump site. Since a road did not currently exist in the area, it was difficult to say whether a road would provide access to the spring. They would be opposed to granting any access across their private property to allow access to the spring. Commissioner Throop suggested no action be taken on this order until the parties could get together for some negotiations. In the meantime, the entire right-of-way would remain open as a public way. Bob Caine said they would also like to get together and have some input. He didn't feel that the consensus reached at the Terrebonne meeting included their input. Commissioner Throop said they had been represented at the meeting, and that everyone fully participated and agreed to the proposal. Rex Barber, 2045 NW 21st, Redmond, testified that he was co- owner of the subject property. He said at the Terrebonne meeting, they did discuss providing public access at the pump site on a negotiated basis, and that was to be the site of the terminus of the access. There was no discussion of access further up to the spring, and they would be vehemently opposed to that. George Read clarified that there was not a vertical conservation easement along the river but horizontal from the high water line of the river ten feet outward not upward. Eric Schultz with the Coalition for the Deschutes said that a border of ten feet around the river would do more harm to the environment by having people go through wet land. He felt the entire road should remain open until an access to the public lands was negotiated. Chairman Maudlin announced that this public hearing would be continued until May 8, 1991. In the interim, Commissioner Throop would be meeting with the involved parties to see if an agreement could be negotiated. PAGE 4 MINUTES: 4/10/91 0106 088'7 4. 5. PUBLIC HEARING ON FINAL ORDER 91-025 VACATING A PORTION OF THE WILLAMETTE VALLEY AND CASCADE MOUNTAIN ROAD Before the Board was a public hearing on the final Order 91- 025 vacating a portion of the Willamette Valley and Cascade Mountain Road. This vacation was also in the Lower Bridge area and the process had been handled on the same timetable as the previous vacation. Dave Hoerning said that the proposed property was owned by Deschutes County and was not used for road purposes or access, and he therefore felt the vacation was in the public interest since it currently went across productive farm land. No utilities were in the area to be vacated. He received a letter from Mike Ogle indicated that public right-of-ways should not be given up without a compelling reason or compensation. Chairman Maudlin asked if the Willamette Valley and Cascade Mountain Road ran along the right-of-way of Lower Bridge Road? Dave Hoerning said that it did in some areas, and therefore it was being vacated except where it overlapped the Lower Bridge Road. Chairman Maudlin opened the public hearing. George Read said that in the Community Development review, they had overlooked that this road was on the historic inventory in the County Comprehensive Plan resource element. He said notice would need to be provided and a hearing held before the Deschutes County Historic Landmarks Commission before this road could be vacated. Chairman Maudlin said this public hearing would be continued to May 15, 1991, to investigate this issue. PUBLIC HEARING ON FINAL ORDER 91-029 VACATING A PORTION OF THE L.A. HUNT ETAL ROAD Before the Board was a public hearing on the final Order 91- 029 for vacating a portion of the L.A. Hunt Etal Road. This vacation was also in the Lower Bridge area, and the process had been handled on the same timetable as the previous vacation. Dave Hoerning said the portion of this road that was being used was not being vacated. The portion being vacated was in productive farm land. He said there had been discussion regarding leaving access to a butte in the area, however the County already had a right-of-way there for access. PAGE 5 MINUTES: 4/10/91 0106 0888 Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. MAUDLIN: I ask for a motion for final order 91-029 vacating a portion of L.A. Hunt Etal Road. SCHLANGEN: So moved. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 6. PUBLIC HEARING: ORDER 91-031 VACATING A PORTION OF LOWER BRIDGE ROAD, 1909 Before the Board was a public hearing on the final Order 91- 031 vacating a portion of Lower Bridge Road 1909. Chairman Maudlin opened the public hearing and then continued it to May 15, 1991, to clarify whether it would have historic status since some of it overlapped the Willamette Valley and Cascade Mountain Road. 7. PUBLIC HEARING ON ORDINANCE 91-010 AMENDING PL-20 TO ADD PLANNING POLICIES CONCERNING SURFACE MINING Before the Board was a public hearing on Ordinance 91-010 which would amend Ordinance PL-20, the Deschutes County Year 2000 Comprehensive Plan, as amended, by adding plan policy concerning surface mining and declaring an emergency. Chairman Maudlin said he had received written comments from William Kinsey. Bruce White gave the staff report indicating that this proposed ordinance had been requested by LCDC as part of the County's acknowledgement process. The acknowledgement order had not been signed and was waiting for the passage of this ordinance. This ordinance would amend the comprehensive plan to add language that, during periodic review, it would be determined whether resources which were treated as if they were goal 5 resources in the ESEE process but which were not listed on the County's goal 5 inventory, would be treated as goal 5 resources for all purposes. The second provision stated that in denying future surface mine sites, the County would not rely solely on the need for the resource in the County as the basis for denial. He said the written comments from William Kinsey were primarily on the Twin Bridges site and the process in general which would probably be challenged PAGE 6 MINUTES: 4/10/91 0106 0889 8. in court. Bruce White did not believe there was much in Mr. Kinsey's comments which were directly relevant to the issue being addressed at this hearing. Chairman Maudlin paraphrased Mr. Kinsey's letter by saying that Mr. Kinsey was objecting to the County taking up any further surface mining issues until the whole comprehensive plan had been acknowledge. However, Chairman Maudlin said the only way the County was going to get its plan acknowledged was by passage of this ordinance. Chairman Maudlin opened the public hearing for testimony. There being no one who wished to testify, the public hearing was closed. SCHLANGEN: I move first and second reading by title only. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 91-010. SCHLANGEN: I move signature of Ordinance 91-010. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES DECISION ON PORTER APPEAL OF PUBLIC ACCESS ON CONSERVATION EASEMENT Before the Board was the Decision on an appeal by the Porters of the Planning Commission's decision to require public access as part of a Conservation Easement. Chairman Maudlin said a letter had been received from the Department of Fish and Wildlife. Commissioner Throop said the letter was in support of the public access easement. Paul Blikstad submitted some pictures that were taken of the three dwellings on the property. He said there was really only one dwelling and two cabins which were uninhabitable. Commissioner Throop said this was a de novo hearing so the Board was able to look at all of the issues involved and not just the public access easement issue. It was a 120 acre PAGE 7 MINUTES: 4/10/91 0106 0890 parcel in an F-2 zone in an area of significant resource values, in forest use, fish and wildlife, and riparian habitat along Fall Creek. The applicant had a forest management plan on the parcel and a special use assessment on the parcel for which the applicant paid a lower property tax rate, because it was primary forest lands, and therefore taxed as forest use. PL-15 listed partitions as conditional uses which were discretionary due to the impacts those uses might have on the zone and the parcel. The partition was subject to the terms of the zoning ordinance, the subdivision ordinance, and the comprehensive plan policies. The purposes of the F-2 zone in Section 4.080 were to conserve and protect designated forest lands for continued commercial growing and harvesting of timber, and the production of wood fiber and other forest uses; to conserve and protect water shed, wildlife habitats and other forest associated uses; to protect scenic values; to provide for agricultural uses; to assure orderly and planned development of public and private recreational and other uses which were compatible with forest use; and to minimize potential hazards or damage from fire, pollution, erosion or urban development. He said in the hearing, the applicant and the attorney for the applicant indicated there was a potential purchaser for the new 40 acre parcel they wanted to create. Their intention was to sell it for a "rural estate." Commissioner Throop felt this proposed use had the potential for reducing the emphasis on forest values of the parcel, and a new dwelling could also lead to converting the parcel or a portion of the parcel to non-forest use. The new dwelling would reduce the likelihood that the timber would be harvested on that parcel and in the vicinity. He said the partition was in conflict with a number of sections of the comprehensive plan, i.e. rural development section, the natural hazards section (adding to the potential for a wildfire), the forest lands section which discouraged non- forest uses, the open spaces, areas of special concern and environmental quality sections, and fish and wildlife sections. These numerous resource values would be compromised by locating a new dwelling on the proposed parcel. There was no evidence in the record that forest uses were being served by the partition as required by the comprehensive plan and county ordinances. The partition was not in conformance with the subdivision ordinance which required that the application be in conformance with the comprehensive plan and applicable zoning. THROOP: I would move that the application for a partition be denied. SCHLANGEN: Second. Commissioner Schlangen said the area was zoned F-2, and she did not feel that splitting it would enhance the forest use PAGE 8 MINUTES: 4/10/91 0106 0891 and would not conserve the wildlife and fishing values. It was in a special assessment zone for forest, and she felt it should stay there. She felt it was in conflict with the comprehensive plan. Chairman Maudlin read the planning staff report where they indicated that the partition did not appear to create any interference with accepted forest management practices on the adjacent forest land, and that the partition should not alter the stability of the overall land use pattern of the area. He said the property was zoned for 40-acre tracts, and if the County had wanted it zoned for 120 acre minimums, the County should have zoned it that way. Even the hearings officer allowed this partition but indicated no further division of the property would be allowed. Since it was still going to be used as forest land, he didn't see what difference it made if it was a 40, 80, or 120 acre tract. Commissioner Throop said he saw the comprehensive plan and zoning ordinances differently. He felt there were two tests: (1) a minimum parcel size and (2) criteria and standards which the application had to meet. Commissioner Throop also indicated that as a part of the motion, he felt the Board should direct staff to prepare findings that implement the points raised during the discussion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: NO Paul Blikstad asked for a clarification that the motion intended to deny all three applications. Commissioner Throop said the motion was intended to address the partition and the conditional use. A variance to the road standards was not needed unless the partition was approved. 9. WEEKLY WARRANT VOUCHERS Before the Board were weekly bills in the amount of $382,236.19. SCHLANGEN: I move approval of the warrant vouchers in that amount upon review. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 9 MINUTES: 4/10/91 0106 0892 10. 11. 12. 13. LETTER TO BLM RECOMMENDING LAND TRADE Before the Board was signature of a letter to the BLM recommending a land trade between the BLM and Jeff Cherry for some property Mr. Cherry owned in the Cline Falls canyon area. The County would then hope to trade some County property for this parcel so that the Cline Falls canyon area could be held for public use. THROOP: Move signature of letter. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES RESOLUTION 91-029 TRANSFERRING APPROPRIATIONS AND ORDER 91- 059 TRANSFERRING CASH Before the Board was signature of Resolution 91-029 transferring appropriations in the amount of $140,500 within various funds of the budget and directing entries; and Order 91-059 transferring cash in the amount of $800,000 within various funds of the budget and directing entries. THROOP: Move approval of both. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES MP-91-7 MINOR PARTITION FOR THE TURNERS Before the Board was signature of MP-91-7 partitioning a 40-acre parcel on Larsen Road for the Turners. THROOP: I'll move signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES APPOINTMENTS TO 4-H EXTENSION SERVICE DISTRICT BUDGET COMMITTEE Before the Board was appointment of Bob Hoar and Patsy Vincent to the 4-H Extension Service District Budget Committee. PAGE 10 MINUTES: 4/10/91 e~ 0100 0893 SCHLANGEN: I move appointment of Bob Hoar and Patsy Vincent. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 14. TAX REFUND ORDER 91-056 Before the board was Tax Refund Order 91-056 in the amount of $17.45. SCHLANGEN: I move signature of Tax Refund Order 91-056. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 15. POSSIBLE BILLING IRREGULARITY AT THE OLD PUBLIC WORKS SITE Rick Isham said that during an investigation that the Forest Service made of their billing charges from NW Environmental, they determined there were some irregularities. Since the County had had similar work done by NW Environment, the Forest Service wanted to look at the County's records also. Rick Isham said that since he was a potential witness in the case, he wanted the authority to hire private counsel to review the results of the investigation and advise the Board on whether a demand or action should be taken. THROOP: I would move authorization for Rick to proceed under the plan he just outlined. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 11 MINUTES: 4/10/91 0106 0894 DESCHUTES COUNTY BOARD OF COMMISSIONERS toop, To ission r Nancy Pop ch angen, Commissi er Dick Maudlin, Chairman BOCC:alb PAGE 12 MINUTES: 4/10/91