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1991-15418-Minutes for Meeting May 15,1991 Recorded 6/4/1991. 0100 1489 91-154IS , MINUTES s DESCHUTES COUNTY BOARD OF COMMISSIONERS,, May 15, 1991 Chairman Maudlin called the meeting to order at 10:05 a.m.: Brd members in attendance were Dick Maudlin, Tom Throop, and Nancy Pope Schlangen. Also present were: Bruce White, Assistant Legal Counsel; Larry Rice, Public Works Director; Dave Hoerning, County Engineer; and Kevin Harrison, Planner. 1. PRESENTATION OF EARTH FLAG Nancy Baker, 708 NW Roenoke, Bend, representing the Peace Action Network of Central Oregon, said their group was formed as a result of the war in the gulf to find ways to help educate the community on ways to further peace efforts in the world. She presented the citizens of Deschutes County with an earth flag as a reminder of the right of everyone to a world free of the threat of annihilation whether from nuclear weapons, ecocide or other human-wrought cataclysm. 2. CONSENT AGENDA Consent agenda items before the Board were: #1, signature of Resolution 91-033 accepting petition to vacate a sixty foot strip of right-of-way and engineer's report, and Order 91-063 setting a public hearing for June 26, 1991; #2, signature of Resolution 91-034 accepting petition to vacate a portion of Parrell Road and the Engineer's Report, and Order 91-065 setting a public hearing for June 26, 1991; #3, signature of Acceptance of Declaration of Dedication for access road to Hill Top Acres Special Road District; #4, signature of Acceptance of Warranty Deed (Clark, Davies, Williamson) for right-of-way acquisition for NW 43rd Street; #5, signature of letter approving Deschutes County's CYSC Comprehensive Plan for 1991-93; #6, signature of Maintenance Agreement for Canon NP-580 for Clerk's office; #7, signature of Development Agreement for Bend Cable Communications for addition to cable office building and new parking area; #8, appointment of Susan Nelson to Special Transportation Advisory Committee; and #9, signature of Order 91-070 closing Sheriff's sale of certain tax title property. THROOP: I'll move approval of the nine consent agenda items. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES, MAUDLIN: YES PAGE 1 MINUTES: 5/15/91 0106 1490 3. 4. 5. ORDER 91-027 DENYING VACATION OF ROY L. KIDDER ROAD Before the Board was a continued public hearing on the vacation of Roy L. Kidder et al Road. The Public Works Department requested that this vacation be denied since there was considerable additional work which needed to be done before this vacation could go forward. There being no one else who wished to testify, Chairman Maudlin closed the public hearing. SCHLANGEN: I move denial of vacation on portion of Roy L. Kidder Road. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ORDER 91-030 DENYING VACATION OF LOWER BRIDGE ROAD (1909 Before the board was a continued public hearing on the vacation of Lower Bridge Road (1909). The Public Works Department requested that this vacation be denied since there was considerable additional work which needed to be done before this vacation could go forward. There being no one who wished to testify, Chairman Maudlin closed the public hearing. SCHLANGEN: I move denial of vacation of portion of Lower Bridge Road. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ORDER 91-025 DENYING VACATION OF WILLAMETTE VALLEY AND CASCADE MOUNTAIN ROAD Before the Board was a continued public hearing on the vacation of a portion of the Willamette Valley and Cascade Mountain Road. The Public Works Department requested that this vacation be denied since there was considerable additional work which needed to be done before this vacation could go forward. There being no one else who wished to testify, Chairman Maudlin closed the public hearing. SCHLANGEN: I move denial of vacation of portion of Willamette Valley and Cascade Mountain Road. PAGE 2 MINUTES: 5/15/91 THROOP: Second the motion. 0106 1491 VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 6. PUBLIC HEARING ON C.B. SWALLEY ROAD AND DESCHUTES NORTHWEST ROAD Before the Board was a public hearing regarding the vacation of a portion of the C.B. Swalley Road and Deschutes Northwest Road. Dave Hoerning requested that these public hearings be continued since conservation easements needed to be acquired along the river. Chairman Maudlin opened the public hearing and continued the public hearing to July 24, 1991. 7. PUBLIC HEARING ON ORDER 91-051 VACATING A PORTION OF SWALLEY BRIDGE MARKET ROAD Before the Board was a public hearing on Order 91-051 vacating a portion of Swalley Bridge Market Road. Dave Hoerning said that Deschutes County had scheduled the reconstruction of Twin Bridges Road to a paved standard, and in this area, there were several roads which had been platted near the river. The upper part of Swalley Bridge Market Road on the west side of the river was still the existing road. This vacation involved a portion of the Swalley Bridge Market Road that went through the middle of a field and hadn't been opened in years. Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. THROOP: Move vacation of portion of Swalley Bridge Market Road. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 8. PUBLIC HEARING ON ANTLER LANE LID Before the Board was a public hearing on the formation of a local improvement district for Antler Lane. PAGE 3 MINUTES: 5/15/91 0100 1492 Dave Hoerning said that last fall a petition was received, from over 60% of the residents on Antler Lane in Lapine, requesting that the road be brought up to County standards and then accepted by the County for maintenance. There were 46 tax lots however, since one half lot was being combined with another, there would be 45 lots. He said he had received 14 written remonstrances and that there might be others who would be remonstrating at this hearing. He read the names and comments from those who remonstrated. An area of concern in a number of the letters was the commercial logging operations on this residential street. He said that the Planning Department had been notified of these concerns and a copy of these letters was sent to the Code Enforcement Officer and Sue Brewster in Legal Counsel. Another person had written with concern that the traffic speed would increase if the road were improved. The estimated cost of the project was $121,000 with a per lot assessment of $2,630. It could be paid off over a ten year period, with semi-annual payments at 10% interest. Commissioner Throop was surprised that there was so many comments about the illegal logging operation, since he had never heard anything about it prior to this hearing. Chairman Maudlin opened the public hearing and requested to hear first from those in opposition to the LID. Tom Headley, 52465 Antler Lane, questioned the law that required them to write letters if they wanted to stop the project. Commissioner Throop pointed out to him that the law required that 60% of the property owners sign the petition requesting the road improvement. Then the LID could be stopped by having 50% of the property owners object. Mr. Headley felt that this worked in the favor of those trying to form the district because of public apathy. He also questioned the cost estimates. He didn't feel that a majority of the people on the road wanted the district and there were a number of people who couldn't afford it. 75% of the traffic on Antler Lane was generated by the two logging businesses. He understood that one of the logging businesses had been grandfathered as an allowed use, but it wasn't supposed to be expanded. The operation had expanded considerably in the number of vehicles it had, and then another operation owned by the same family was put in next door. There was a high fence between them because they weren't getting along. The people who were creating the dust problem had a grader and graded the road periodically. He felt that no one would have circulated the petition to pave the street if it hadn't been for the commercial businesses. Bill Virkler, 52473 Antler Lane, LaPine, testified that he had been working on the problem of the illegal businesses for four years. He had worked with three code enforcement officers and PAGE 4 MINUTES: 5/15/91 1. 0100 1403 had spoken to Commissioner Maudlin. The business owners had been cited into court three or four times and had gotten continuances every time. If these businesses were in an industrial park where they belonged, Antler Lane would not need to be paved. A member of the logging business family (Rowena Couch) that started the petition to have the road paved. Mr. Virkler had already written a letter of remonstrance. He requested that the Board continue the issue until it could be determined if the logging business was going to be forced to move. R. C. McOmie, 52550 Antler Lane, objected to the misrepresentations made by the person circulating the petition. The signers were told they were not voting for or saying they wanted the road by signing the petition, but were only voting that they wanted a meeting held to discuss the issue. He did not feel that 60% of the lot owners were asking that the road be paved. Chairman Maudlin read the top of the petition which was submitted to the Board. It said that those signing were petitioning the Board of Commissioners to bring the road up to County road standards. R.C. McOmie said his signature was on the petition, but he only thought he was asking for a meeting. He asked if people who had signed the petition wanted to vote no" now, if their names could be removed from the petition, and possibly lower the number of signers below 60% making the petition invalid? He said the Couch family that started the petition was the owner of the new business on the street. The Couch family which wrote a letter of remonstrance owned two lots and was the owner of the older, grandfathered business. Jack Gamble, 52465 Antler Lane, testified that he was mostly concerned about the heavy equipment which was tearing up the road. He was not in favor of the LID. Chairman Maudlin asked if there was anyone who wanted to speak in favor of the LID. There was no one who wished to testify. Tom Headly asked if the LID was approved, what would he need to do to get an injunction to postpone it until it could be thoroughly studied. Commissioner Throop said Legal Counsel had advised that they should contact an attorney. Chairman Maudlin closed the public hearing. Commissioner Throop said he felt there was a major collateral issue involved with this LID (code enforcement problem) and asked if the Board had the authority to defer action. PAGE 5 MINUTES: 5/15/91 0106 1494 Dave Hoerning said if there were 50% or more remonstrances, the project would automatically be dead. With less than 50% remonstrances, it was the Board's prerogative whether to go forward or not. He also mentioned to the audience that those on a fixed income who could not afford the LID payments could make application to the Assessor's office, and the state would make their payments until their death. It would be paid back through the sale of their property or through their estate. He said the Treasurer would also accept monthly payments. Commissioner Throop said that since the Board had the latitude to consider other issues before going forward on an LID, he suggested postponing the issue until the collateral code enforcement issues could be considered in conjunction with the LID. There was no compelling reason to proceed with the LID immediately since the improvement would not be made until next year. Dave Hoerning said they would be surveying the property in the latter part of the summer, designing the project in the winter, and bidding them in the fall. Chairman Maudlin agreed that the logging operation was involved in this issue, and he also wanted to delay the issue. Chairman Maudlin announced that the decision on this issue would be made at their regular board meeting at 10 a.m. on Wednesday, May 29, 1991. Moya Couch, the originator of the petition, was identified by members of the audience as the woman who attempted to interrupt Commissioner Throop when he was speaking and then left the room. A woman from the audience pointed out that the Jehovah's Witnesses had built a church on the corner of Antler and Burgess Road and would be paving the first 100 feet of Antler Lane. Dave Hoerning said he was aware of that, and it had been taken into consideration. A gentleman from the audience asked if he could get a copy of the petition so that he could contact the signers to see if they wanted to change their minds. Chairman Maudlin said he could get a copy of the petition from Dave Hoerning. However since the public hearing was closed, it would not make any difference if someone who had signed the petition changed his/her mind. Dave Hoerning said that including Jack Gamble who gave a verbal remonstrance, there was a total of 15 remonstrances. PAGE 6 MINUTES: 5/15/91 01®6 1495 9. PUBLIC HEARING: JOHNSON APPEAL OF MC-91-3 Before the Board was an appeal by Ed Johnson of the Hearings Officer's approval of MC-91-3 an application to provide alternate road access to parcel #3 of MJP-81-1 via a private easement over Lot 20 of Wild Horse Ridge Subdivision. Kevin Harrison gave the staff report. He said this application was to provide alternate road access to a parcel created in 1981. The proposed access would be a private easement over lot 20 of Wild Horse Ridge Subdivision. The applicable review criteria were contained in Title 17 of the Deschutes County Code. The staff recommendation was for approval. The Hearings officer reviewed the application on March 19, 1991, and approved it. Ed Johnson appealed the decision to the Deschutes County Board of Commissioners. Kevin Harrison wanted to respond to two of the points raised by Mr. Johnson in his appeal. In point #6 of the appeal, Mr. Johnson questioned whether adequate notice had been provided. Kevin Harrison said to the best of his knowledge, notice was provided in accordance with the provisions of the County ordinance and state statute. In point #10, Mr. Johnson indicated that the Hearings Officer's decision conflicted with a statement in the staff report. Kevin Harrison said the intent of the staff comment was to ensure that the use of the existing utility easements around the lots would not be compromised by the placement of the proposed road easement. The testimony at the hearing was that the utilities were installed to lots 20 and 16 so that crossing the back property line of lot 20 would not compromise any utility access. It was the staff's opinion that the hearings officer's decision was not in conflict with the concern raised by staff. Bruce White asked Kevin Harrison if the deficient notice issue in Mr. Johnson's appeal concerned deficient notice of the original hearing. Kevin Harrison said he believed it was. Mr. White asked if Mr. Johnson had appeared at the original hearing. Kevin Harrison said he had. Mr. White said that it appeared there was no notice deficiency concerning Mr. Johnson since he was able to appear. Chairman Maudlin opened the public hearing and asked for testimony from those people who were supporting the appeal. Ed Johnson, 16280 Riata Court (P.O. Box 1599), Sisters, was the appellant. He said he was the owner of Lot 29 in Wild Horse Subdivision and was President of that subdivision. He said he was speaking "privately" for a majority of their lot owners who were opposed to the easement from their subdivision to an adjoining major land partition. He submitted a map of the major partition. He said the legal access to the lots in the partition was Perit-Huntington Road. He submitted two PAGE 7 MINUTES: 5/15/91 0106 1496 letters in opposition to the application from the Capplemans and the Shaeffers. He said the letter from the Capplemans, owners of lot 13, indicated that one of their primary reasons for purchasing this lot was privacy. He said that this break in their subdivision was being done totally for the financial gain of the applicant. The access road identified in the partition was currently roughed in and did come to the base of the lot in question. Where it crossed Indian Ford Creek there was a culvert in place. It was only passable with a four-wheel drive vehicle. He felt that the only reason the application was submitted was to make the sale of the lot tremendously more profitable and attractive to prospective buyers. He felt the applicant had not met the burden of proof and criteria of Title 17 where it stated the purpose was to encourage well-planned subdivision and partition development to the end that good, livable neighborhoods are created. The original findings of June 1981 met this criteria. The staff report supported those findings and indicated under item (f) "that the proposed building sites as well as the access roads may have a visual affect on the City of Sisters." The decision of June 1981 point 6, required that the access road be 24-feet wide with a minimum grade of 10%. Point 7 required that the access road be kept within 75 feet of Indian Ford Creek. He concluded from this that the access road would be low on the hillside and out of the view of the town and the neighbors, thus minimizing the visual impact. He felt there would be significant scars left by the abandonment of the two existing driveways on Lots 16 and 20. Title 17 also stated that the purpose of the title was to safeguard the interests of the public, the applicant, and future lot owners. He did not feel the application was in the public's interest. The overwhelming majority of the lot owners in the Wild Horse Subdivision as well as the majority of the lot owners in Barclay Meadows and Barclay Place Subdivisions were against this application. It set a dangerous precedent whereby thirteen other lot owners in this subdivision alone could grant access in a similar manner. The whole of the County would be affected by this decision. He had spoken with County Counsel Rick Isham who agreed that there was a percent that would be set by approval of this application. The hearings officer attempted to pacify the objections by the subdivision lot owners by requiring the lot owner of Parcel 3 to pay road maintenance assessments. He had been advised by counsel as well as by the Commissioners' office that this was not legal and could not be enforced. He said the driveway would also cross the utility easement in the lot being accessed. Boyd Stuwe, 69020 Barclay Dr., Sisters, testified in support of the appeal. He asked that the Board not confuse legal access to the parcel in question with the location of a driveway on the parcel in question. The hearings officer had said that an "access across Lot 20 is a far superior access." PAGE 8 MINUTES: 5/15/91 0106 1497 He felt there was nothing to support that finding. It may have provided access to a "superior building site, " but he did not feel that was relevant to this hearing. Access was already provided to the lot by the original partition. He felt adding this lot to the existing privately built and maintained roads would have a negative impact on those road, and no one had addressed how the new lot would be assessed for the road use. He felt it would allow a dangerous precedent that would allow subdivision boundaries anywhere in Deschutes County to be added to in a similar fashion. He felt that when people purchased property within a subdivision, they had a legal right to expect the roads, boundaries, and general complexion of that subdivision to remain the same unless the property owners in the subdivision voted to make a change. In the hearings officer's findings, he failed to mentioned that a crossing of the riparian area had been constructed years ago and would be used by another parcel regardless of the outcome of this hearing. Also the riparian area had been cleared and burned by an adjacent property, so he questioned whether the area would still be considered riparian. There had not been water in Indian Ford Creek for the last five years. He felt the environmental defense that had been used to support this application had no basis in fact. The hearings officer neglected to mention that the legal access off Perit-Huntington would still be constructed in order to access another parcel on the hill so the scar that they were so concerned about would still be there. The application was only for Wheeler-Bartol's economic convenience since to complete the legal access would cost approximately $10,000, but the cost could be split with the other parcel owner. Nothing in the application or testimony indicated any benefit to the public by granting the application. He felt it was in the public interest that the deeded access be completed as required or if it were a mistake that the partition was granted, that the partition be vacated and the parties be reimbursed for their damages. Dudley Walford, 68928 Chestnut Dr. (PO Box 1780), Sisters, testified that the hearings officer's decision conflicted with Title 17 in that it did not serve the public interest of those most affected. He agreed that the real issue was economics. An inequity already existed since the lot owners of one subdivision already traveled on the roads of another subdivision without contributing to the road maintenance, and no agreement had been reached between the homeowners for the maintenance of the roads. He felt this situation was an intolerable legacy that the County had imposed upon them. He did not feel that anyone "in his right mind" would accept a "deed restriction stating that an undisclosed amount of money had to be paid at one or more times a year for road maintenance." Also, Richard Isham, County Legal Counsel, had said pertaining to Barclay Drive which was the main access PAGE 9 MINUTES: 5/15/91 01®6 1498 road to Camp Polk Road, "there is no means under existing Oregon law under which a member of the public can demand any level of maintenance from such users," nor does "the County have the ability to direct users and property owners to maintain a public access road to any level." Therefore, he did not see how the hearings officer's proposal could be enforced. The hearings officer felt that this revised access would be a unique situation. He said there was 640 acres of land to the east of Wild Horse Ridge Subdivision, abutting eight properties which could provide future access should the precedent be established. He said there was a current owner of a 17 acre parcel served by another access to the south who was using Wild Horse Subdivision to the west at will, and who had no intention of voluntarily contributing to the maintenance of the roads, even after causing extensive damage in the course of having a doublewide trailer home delivered to his property in November of 1990. He said at one time Wild Horse Ridge had been BLM land, and so it was ludicrous for the hearings officer to say there was no reason to worry about this precedent affecting the neighboring BLM property. If the hearings officer had read Emily Baines letter of March 15, 1991, he would have known that Wild Horse Ridge had been BLM land when she purchased property in the area, and was told it would likely remain so. Her letter stated that the Wheeler- Bartols had refused to participated in an agreement reached on road maintenance. He had a video of the site for the Board to review if they were not going to make a site visit. (A site visit was scheduled so the video was returned to Mr. Walford). Adding a revised access to their subdivision roads would not make for "a good, livable neighborhood." The hearings officer's decision only inflamed an intolerable situation. He felt that a consensus of the three subdivisions would be in opposition to the hearings officer's decision. Bruce White pointed out that there were some preliminary matters that had been overlooked. The Board needed to disclose any kind of prehearing contact regarding the issues before the Board. Commissioner Throop said that he had spoken with Mr. Walford but did not recall this specific issue being discussed. Chairman Maudlin asked if there was anyone who wished to challenge the ability of any member of the Board to hear this matter or if any of the Board members had any disclosures to make. There were none. Bruce White pointed informed the audience that their failure to raise any issue at this hearing that was not already in the record would preclude an appeal to LUBA on that issue. Mike Moyer, 69170 Barclay Dr., Sisters, testified he felt the issue was whether the applicant had sustained the burden of PAGE 10 MINUTES: 5/15/91 0196 1199 proof in accordance with the ordinance. He said environmental matters had to be considered but that any development in any location would affect the environment. The major partition lot already had legal access and was purchased with the full knowledge of the status of that access. He urged the Commission not to change the character of his subdivision by allowing the access. Commissioner Throop asked Mr. Moyer how this access would change the character of his subdivision. Mr. Moyer said it would create additional traffic problems since they had not been able to come to an agreement regarding road maintenance among the current subdivision property owners. He had also been approached by people with an interest in property contiguous to his, asking if he would allow an easement across his property. He said no to that request. Arvad Cook, 16320 Riata Court, P.O. Box 1258, Sisters, testified that they purchased their property in 1986. He had spoken with Mr. Goodwin of Sisters Realty regarding every parcel which was not built on. He looked at the properties that were in contention in this public hearing. He checked out the access and was told unequivocally that the access was from the southwest which was the dedicated right-of-way to those three parcels. Based upon that information, he did not pursue the property further because of the additional expense of the road and bringing in the utilities. He felt the only reason the applicant's were asking for the right-of-way was solely for their economic benefit. Boyd Stuwe asked to speak again to clarify a couple of issues. He said he was the president of the Barclay Place Homeowners Association and had been speaking on their behalf. Regarding a letter from a property owner in his subdivision, Emily Bain, he felt there was one inaccuracy. The Wheeler-Bartols had very generously contributed their share towards the road maintenance. There was an agreement by all of the subdivisions last fall for the maintenance of the roads. The paving company requested that the work be postpone one year. When they came back this Spring to obtain the money from the property owners, they learned that it was going to be more expensive than originally projected, and that there were a number of dissenting properties who weren't willing to pay their share. Due to this, the agreement fell apart. One property owner in their subdivision, who had contiguous property to the parcel in question, did not receive notice of any meetings on this issue. Their name was Cynthia and Joe Campbell. Bruce White asked which parcel their property was contiguous to? Mr. Stuwe said the parcel in question in the major partition. Mr. White asked if the Campbells knew of today's PAGE 11 MINUTES: 5/15/91 0106 1500 hearing, and Mr. Stuwe said yes, he had contacted them the previous evening. Commissioner Throop explained that the County did the best job they could to get the notices out, but sometimes the post office lost mail, or the County did not have the proper owner of record. Because of this, the County relies on word of mouth in the small neighborhoods or communities. Kevin Harrison said that Joe Campbell was on the mailing list. They were mailed notice of both hearings to a Portland address which was the address on the Assessor's records. Ray Hart, 68893 Bay Place (PO Box 1126), Sisters, testified that he agreed with the testimony that had already been given. He wanted to make sure that the Wild Horse property owners petition had been accepted into the record. Chairman Maudlin said that it was already in the record. Mr. Hart felt that if a majority of the property owners on Wild Horse Ridge did not want the road, the road should not be put in. Ken Gilbert, 69075 Barclay Dr., said he had been a property owner since 1978. He noticed percolation tests in a rocky area on the concerned property, and asked if that was adequate? Chairman Maudlin said that was not a question that the Board could answer. Mr. Gilbert had been in subdivision work most of his life and realized that developing a roadway to the top of the hill where they wanted to put a house would be very expensive. He felt the County should seriously consider taking over the maintenance of Barclay Drive. Commissioner Throop said there was a state law which said that the County would not put any money into a public road unless it was brought up to County standards, and then dedicated to the County. He suggested they could go through an LID proceeding to bring the road up to County standards, and then the County would take over the road and maintain it. Ken Gilbert continued that Bay Place Drive had a 12 foot black top not the 20 feet indicated in the staff report. He was definitely opposed to the application. Doris Hart, 68893 Bay Place, Sisters, testified that she lived on Wild Horse Ridge. She said that the access road from below would be completed when the Leavitt's sold their property which abutted the Wheeler-Bartol's property. Charlie Ott, 69022 Chestnut Drive, Sisters, testified he lived in Wild Horse Ridge and was a recent owner. He bought this property because of the quiet and the friendly neighbors. He was, therefore, in opposition to the access road, because he felt it would set a precedent. He said that promises were not PAGE 12 MINUTES: 5/15/91 0106 1501 binding and were often broken. He was sure the new owner of the lot would want to do things that would not comply with their subdivision CC&Rs. He requested the Board deny the application. Donna Stadler, P.O. Box 1665, Sisters, said she owned lot 8A but did not live on the property. Several years ago she was asked to give access across her property to an enhanced building site. She felt that approving this application would set the precedent for others to do the same. Paddi Moyer, 69170 Barclay Drive, Sisters, testified that she was in favor of the appeal for the reasons already stated. Doris Hart testified again offered them a great deal of property, and they refused. stating that the Leavitts had money for an easement across her Mary Cook, 19320 Riata Ct., Sisters, testified that she agreed with those speaking in opposition to the application. Kathy Johnson, 16280 Riata Court, Sisters, testified that she opposed the new access in their subdivision. Chairman Maudlin asked for testimony in opposition to the appeal and in favor of the application. Max Merrill, attorney representing the applicants, 1070 NW Bond, Bend, gave the Board a list of exhibits. He indicated on a map where the McGillicuddy property (lot 16), Wheeler- Bartol property (lot 20), the Hart property (lot 24), and the existing driveways were located. Concerning the existing driveways on the applicants' property, they had already spoken with contractors about taking the cinders off the existing driveway and replanting the area. When the area was originally platted, there were utility and roadway easements around each lot. The County was only concerned that they did not cross an area where utilities could be cut. Commissioner Schlangen asked where the utilities would come to Parcel 3 and Mr. Merrill said they would come through Wild Horse Ridge. The test holes dug for the County were approved for septic service. He raised one procedural issue. They felt that since they were neither creating a new lot nor were they dedicating the access to the public, no public hearing was required, and that the driveway permit could and should have been handled administratively. He pointed out that both the staff report and the hearings officer approved the request as made. The Hearings Officer noted that the owners of the two primary lots which would be affected by the application (Lot 16 to the north and the Lot across the street) had raised no objection. He said that the extent to which the roads of the subdivision would actually be used by the applicants would be PAGE 13 MINUTES: 5/15/91 0106 1502 under one-half mile. Most of the lots owners would not even be aware that they were there. It did not really matter that the lower road would eventually be built because the lower portion of the parcel had large outcroppings of rocks. In order to access to the site, they would have to extend the road along the creek and then angle back and forth to get the kinds of slopes that were required by the original approval which was a 10% maximum slope. The opponents objected that the use would have an impact on their privacy, that applicants would benefit financially at the subdivision owner's expense if the approval were granted, that the granting of the application would create a precedent, and that the applicants failed to sustain their burden of proof. The lot to be accessed was approximately 10 acres and Indian Ford Creek ran right along the westerly boundary. The property, except for two small areas, was covered with rock outcroppings or extremely steep slopes of 40-60%. Two attempts had been made to have the access through lot 6 off Barclay place and through lot 3 on Bay Place. Neither of those parties would allow that access. From a practical standpoint, this existing access was the only one available. There would be no reason for any other private property owner to allow access through their property by way of an easement, because all they would have to do would be to say no. There was no talk of environmental impact back in 1981 on the construction of the road, however they felt the road would have a devastating impact on the stream area. Because of the steep topography of the lot, there were only two potential building sites: one at the base of the lot near the creek and the middle of the lot and the other was the one they were proposing up above. Because of the tremendous view from the site on the upper part of the lot, it was the most desirable location. They had a surveyor look at the property, and it was clear from the deposits and the vegetation that there was considerable flooding in the area. The required 100' set back for any building would preclude using the lower building site. They had a letter from a road contractor which indicated that although a road was engineeringly feasible, it would not be available to haul heavy trucks for construction work. Even paving it would not resolve the problem because of the type of soil. It would be very expensive to put in and very expensive to maintain. They probably would have to wind in and out of the rock outcroppings to put in a road. He felt this issue for the Commissioners was: "Is it better to risk the environmental problems with respect to that road that would have to be built along Indian Ford Creek and the cutting of that hillside which not only would be expensive but would also have a large view factor..., or build a much shorter, flatter, cheaper area to get to the same site which would not have any of the environmental impact. He said the creek area had willows and watery plants. A road to the contiguous lot would only be about 200 feet. He said nobody would be able to see the PAGE 14 MINUTES: 5/15/91 0106 1503 proposed road like they would if it were on the steep hillside. One of the purposes stated in Title 17 was to "encourage development in harmony with the natural environment." He said their proposal would be precisely that in every aspect of the construction while the opponents position was not. He said that a road up to the building site would be $30,000 - $40,000. He didn't feel that because the proposal would benefit them financially should be a factor when the application was considered. The factors which were important were: what would be best for this property, for the subdivision, and for the homeowners from an aesthetic and environmental position. He felt their proposal would have the least impact. He also spoke with Rick Isham and felt he was saying that the County, as a governmental entity, could not require this homeowner or any other to contribute to the maintenance of a public road. His clients had affirmed that they would agree to any deed restriction which would require that they pay the homeowners association dues for the roads on a proportionate share. They would also put it in the deed that the owner would have to pay their prorated share for the Riata Drive contribution which had already been made. When there was an agreement among the subdivisions, this parcel would contribute in the same manner as all other parcel owners. It would not be fair to ask this parcel owner to contribute when others in the subdivision weren't. The Wheeler-Bartols already had people who were willing to buy the parcel under these terms. Using the lower building site would add to the siltation of the stream and would be a much riskier situation with respect to sewer disposal. He said the County's position was that when subdivisions were linked or in the future would be up against properties which might be subdivided, that to the greatest extent possible, the roads should access through the existing roadway system rather than creating new roads which would dead end right next to each other. This was much more economical and better for emergency services. He said the public good was not determined by a numbers game of how many people in the subdivision were for it or against it. The public good should be determined by the affect of the proposal on the public in general. He felt that people in Sisters and on the Indian Ford Creek area would be adversely affected by an unsightly scare on the hillside. Many of the objectors were not even on this particular public street. He said when the Wheeler-Bartol's purchased this property they had always assumed they would be able to get access to the parcel from the subdivision. Lucinda Fravel, 15689 Paddock Green, testified that she represented Mr. Leavitt when the parcel was sold to Ann and Jeff Wheeler-Bartol and was now representing the Wheeler- Bartols for a proposed sale of the 10 acre parcel. She said the proposed easement was a driveway not a road. She had walked the property with two professionals: Fred Ost, PAGE 15 MINUTES: 5/15/91 01®6 1504 licensed surveyor and Rick Hurdlica, road contractor. She read from Mr. Ost's written testimony which was in the record regarding there being no feasible building site on the west side. The northeast parcel was a natural building site. Rick Hurdlica had said that any road would require a D9 cat and would never allow the use of a concrete hauling truck or other heavy trucks necessary for home foundation work. The road would require retaining walls and extensive six month maintenance. It would be a highly visible scare from a two- mile radius west and northwest from Sisters and Camp Polk Road. The estimate for the equipment alone was $20,000. She said it was within the right of any single property owner to create a covenant. The County could not enforce the CC&Rs. They did have a proposed purchaser who had agreed in writing to such a covenant for regular assessments plus any special assessments for improvement of the public access road to the site. Concerning the owner outside the subdivision who used these roads to bring in a mobile home, their legal access from the Redmond Highway through the Junipine subdivision did not allow the transport of a mobile home. They only used public road and their parcel was contiguous to direct public access on Riata Court. A standard septic system had been approved at the proposed site, but she doubted it could on the lower site. The creek area had been part of a flood plain in the past and could be in the future. She had seen water in this area within the last four years. Ann Wheeler-Bartol, 68929 Bay Place, PO Box 298, Sisters, applicant testified that when they decided to purchased the property in 1982, they had always considered purchasing that parcel of property and did so in 1988. They did know that there was an access from the bottom of the parcel. There had been two public hearings when the parcel division was originally made, and the access below the parcel was only approved because the property owner had not been able to get an easement. When they built their house, they were approached to provide an easement. Since they wanted to buy the property, they went to an attorney and did research. They came to the conclusion that there was nothing that would prohibit them from putting a private easement in as long as they made sure the owner paid homeowners association dues. They've paid all extra and voluntary assessments since they had lived there. They never anticipated this kind of opposition. They had originally looked at putting the easement on their property line next to Harts' property, but the Harts strongly objected. Therefore, they changed the location of their proposal after getting approval from the McGillicuddys. She felt their proposal would set a good precedent since fees would be required in a deed restriction to contribute to the roads. Also the environmental standard was better. She said a major reason for the easement was to prevent damage to the riparian area below the parcel. Since PAGE 16 MINUTES: 5/15/91 01®6 1555 1983 there had been numerous times when this area had been flooded. However, it had not flooded in the last few years because of the draught and an illegal water diversion which was currently being dealt with. Blaine McGillicuddy, 124 Broadmoor, Richland WA, testified that he and his wife were owners of lot 16 and lot 12 which was located directly north of the applicant's proposed easement. He felt they were the only parties who would be directly affected by the easement. He complimented Kevin Harrison for being patient with him and understanding and explaining the issues well. He felt that the access to public roads was a minor issue. Using Bay Place versus Perit- Huntington Road for access to Lot 7 Parcel 3 was without merit since both were dedicated for public use. Especially since there were sightseers in the area which had more significant impact than one family would. The partition of Lot 7 was not well thought out since there was no consideration of utility access. According to Central Electric Cooperative, overhead power was available 800 feet to the west of Lot 7 parcel 3. From that point the utilities would have to cross Indian Ford Creek and extend up the steep face of McKinney Butte. He felt that overhead utility lines were extremely unsightly. The Coop informed him that the most probable source of power from the east was located on the 30 foot easement between Wheeler- Bartol's lot 20 and Hart's lot 24. That source could be used for Parcels 2 and 3 of lot 7. The utilities should be located underground and originate on Bay Place. The old bridge across Indian Ford Creek had been replaced with a culvert which was undersized and would contribute to flooding the meadow. If the underground utilities came from Perit-Huntington Road, they would have to dig up the creek and go 42 inches below the creek to install conduit with pole boxes at either end, and then conduit going straight up the hill, because they would not have access for maintenance. Perit-Huntington Road provided the only access to McKinney Butte between Barclay Drive and Squaw Creek for fire suppression equipment and should be left open. He said there was a 40 foot "no mans land" between the lots in Wild Horse Ridge because of the a 30 foot strip of land straddling the property line of all lots, and this easement was protected by a 20-foot fence line set back. Until the covenants were revised in 1987, the 30 foot strip of land was available for homeowner use without limit. Today the use of this strip of land is restricted to underground utilities. He felt a road across lot 20 and down the west slope would provide a small measure of protection from fires. Use of these public roads was not an invasion of privacy, and they were the only ones whose privacy would be affected. Using the 30 foot easement would require the removal of several trees, and the blasting or removal of a natural basalt rock garden. The applicant had not established a new easement but had moved the existing easement to the PAGE 17 MINUTES: 5/15/91 0106 1506 south of the property line and aligned it to avoid trees. He felt this was a reasonable and responsible solution. The hearings officer's findings were valid and reasonable. He strongly supported the applicant and requested that MC-91-3 be approved. Betty Marquardt, P.O. Box 1138, Sisters, owner of Lot 1 in Wild Horse Ridge, testified that she had lived in the area for ten years. She was in favor of the driveway easement. In the Deschutes County 2000 Comprehensive Plan it was a goal "to preserve and enhance the open spaces, rural character, scenic values and natural resources." She felt that a 14 foot wide driveway up McKinney Butte would be visually offensive. She thought it was 1983 when the creek flooded, and there was 15 inches of water on Barclay Drive at the base of the hill. She felt it was a riparian area which needed to be protected. Chairman Maudlin asked if the appellant had any rebuttal. Ed Johnson said that Max Merrill had stated that the slope on the side of this hill was up to a 60% grade. He submitted a map that showed the grade as 30%. Concerning the riparian area which everyone wanted to save, he said there were three lots in this area. One of the lots had been recently developed and the owners had completely stripped the vegetation from their land right to the creek. Bruce White submitted a number of additional letters into the record. Chairman Maudlin closed the public hearing, and announced that the Board would review the testimony and visit the site before making a decision on the appeal on May 29, 1991, at 3:30 p.m. but no further testimony would be accepted at that meeting. Additional written testimony would be accepted until 5 p.m. on Wednesday, May 22, 1991. The site visit was scheduled for 4 p.m on Monday May 20, 1991, starting at the top of Bay Place and Lot 16 at the driveway. 10. CONTRACT WITH CENTRAL OREGON AIDS SUPPORT TEAM Before the Board was signature of grant agreement with the Central Oregon Aids Support Team (COAST) for funds, not to exceed $3,000, to purchase educational supplies, obtain space at the Deschutes County Fair, and provide equipment for the purpose of educating and informing the community about HIV/AIDS for the County. SCHLANGEN: I move signature of the contract between Health Department and COAST. THROOP: I'll second it. PAGE 18 MINUTES: 5/15/91 0106 150'7 VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 11. JOINT CITY OF BEND DESCHUTES COUNTY URBAN GROWTH MANAGEMENT PLAN Before the Board was signature of the City of Bend and Deschutes County Joint Urban Growth Management Plan of May 1991 concerning planning for and management of the Bend Urban Growth Boundary. There were a couple of minor changes that still needed to be made, so Commissioner Throop suggested approving it in concept and signing it after these changes had been made. THROOP: I'll move we sign the City of Bend and Deschutes County Joint Urban Growth Management Plan as submitted to us with two changes on the appendix A: one on the first page and the second on the second page, and that we approve chair signature, we authorize chair signature but ask that we get a clean copy to sign before the chair signs. SCHLANGEN: I'll second that. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 12. ORDINANCE 91-016 ADDING SOLID FUEL HEATING DEVICES Before the Board was signature of Ordnance 91-016 adding Section 15.04.055, Solid Fuel Heating Devices, to the Deschutes County Code, and declaring an emergency. SCHLANGEN: Move first and second reading of ordinance 91- 016 by title only adding section regarding solid fuel heating devices. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 91-016. THROOP: Move adoption. SCHLANGEN: Second. PAGE 19 MINUTES: 5/15/91 .ti 0106 IRS VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 13. ORDER 91-072 SETTING HEARING FOR DRRH ANTI-DISCHARGE OF FIREARMS DISTRICT Before the Board was signature of Order 91-072 setting a hearing to designate an area combining several subdivisions, primarily in the Deschutes River Recreation Homesites area, where the discharge of firearms would be prohibited. Bruce White verified that when River Forest Acres, which wasn't contiguous to the other subdivisions, was removed from the petition, there was still enough signatures in the remaining area, including the two subdivisions which were contiguous by road only (Stage Stop Meadows and Deschutes Pine), for the Clerk to certify the petition valid. Bruce White expressed concern about the use of a road to include some sections as "contiguous." THROOP: I'll move we go forward in that manner. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 14. RESOLUTION 91-039 SUPPORTING INCREASE IN STATE GAS TAX Before the Board was signature of Resolution 91-039 supporting House Bill 3559 proposing an increase in the State gas tax. SCHLANGEN: Move signature of Resolution 91-039. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 15. TAX REFUND ORDER 91-071 Before the Board was signature of tax refund Order 91-071 in the amount of $59,999.20 to United Telephone Company because of a change in values from Tax Court stipulation. SCHLANGEN: Move signature. PAGE 20 MINUTES: 5/15/91 C 06 1509 THROOP: I'll second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 16. WEEKLY WARRANT VOUCHERS Before the Board were weekly bills in the amount of $206,782.14. SCHLANGEN: Move approval upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 17. TERMINATING LICENCE WITH BEND AEROMODELERS R/C FLYING CLUB Before the Board was signature of a letter to Bend Aeromodelers R/C Flying Club giving them one year's written notice of termination of their license to utilize an area of the Knott Landfill. They were asked to vacate the site not later than May 31, 1992. SCHLANGEN: I move that we do give notice to the Aeromodelers. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES DESCHUT S COUNTY BOARD OF COMMISSIONERS Tom hroop, Commissioner u ;J ~ n Pfancy P e ch ang"n, Commis 'over Di lin, C airman BOCC:alb PAGE 21 MINUTES: 5/15/91