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1991-16648-Minutes for Meeting May 29,1991 Recorded 6/13/19910106 1659 91-1664+ MICt OEIIMED MINUTES r 'JuNN 2. t' 4D iCWAIRE COUNTY BOARD OF COMMISSIOAk:9 May 29, 1991 ` Chairman` M4'y4l A opened the meeting at 10 a.m. BCOard- , nejrber~s in attendance were Dick Maudlin, Tom Throop and Nancy Pope Schlsngen. Also present were Rick Isham, County Counsel; Larry Rice, Public Works Director; Dave Hoerning, County Engineer; Bruce White, Assistant Legal Counsel; and George Read, Planning Director. 1. CONSENT AGENDA Consent agenda items before the Board were: #1, approval of Plan Amendment to 1990-91 Great Start Plan regarding Redmond Teen Parent Program; #2, signature of Resolution 91-037 regarding signature authorization for employees of Gates McDonald for payment of Workers' Compensation expenses; #3, signature of Resolution 91-045 declaring certain motor vehicles surplus and directing entries; #4, reappointment o Eric Schulz, Len Mathisen and Ron Nelson to Deschutes Mitigation and Enhancement Committee; #5, chair signature of liquor license application for Quail Run Golf Course in LaPine; #6 signature of liquor license renewal for Deschutes River Trout House in Sunriver; and #7 reappointment of Billie Laumer to River Forest Acres Special Road District Board of Directors. THROOP: Move approval of the seven consent agenda items. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. ANTLER LANE LID Before the Board was consideration of the formation of Antler Lane Local Improvement District. Chairman Maudlin reported that the public hearing on this issue had been held two weeks ago, and the decision had been deferred to today's meeting. He had spoken with County Counsel who indicated it was the Board's decision whether or not to form the district. Commissioner Throop said he wanted to know a little more about the genesis of this proposal, where it came from, who the primary advocates of the proposal were, and what were stated reasons for wanting to form the district. He recognized that over 60% of the property owners had signed the petition and less than 50% indicated they didn't want the district. PAGE 1 MINUTES: 5/29/91 0106 1660 Dave Hoerning said he was first contacted by Moyia Couch who was a resident of Antler Lane. She came into the office in the summer of 1990, and was informed about the procedure. She worked for several months getting the petitions signed, which were returned to the Public Works Department in November 1990. She sent out a letter with the petitions which he read into the record. It outlined the process extensively, and Mr. Hoerning said he had reviewed it prior to its distribution and felt it was accurate and quoted exactly what the statute said. Commissioner Throop asked when the latest date would be for approval of the LID in order to met the timeline for starting the work next spring. Dave Hoerning said they would need to do the surveying this summer, but before that there would have to be the final assessment hearing and bonding sign up which would take approximately 90 days. He said there were three other LIDs which they wanted to do at the same time as Antler Lane, and they were scheduled for surveying, field work, and office design in July and August. That would allow them to put the plans together and then let the bids in September. Commissioner Schlangen asked what the number was that signed the petition for the LID and the remonstrances. Dave Hoerning said there was one more remonstrance which came in the day of the public hearing which he added for a total of 16 which was slightly over one-third of the property owners. When the petition was started there were 46 lots which required 28 signatures on the petition which was exactly the number turned in. Four of those who signed the petition later remonstrated against the LID. Commissioner Throop said he was supportive of citizens who wanted to put together LIDs because it gave them the opportunity to create County standard roads which would then be maintained by the County. However, he felt there were sufficient collateral issues, which he wanted to investigate further, to warrant postponing the formation of the LID. There had been allegations that the illegal uses in the area were generated by the same people who initiated the petition. He did not question the legality of the petition process but was concerned about the motivation. He wanted to see if there were some violations which needed to dealt with before a consensus of the property owners could be reached. He didn't want the Board to take an action which would deeply divide the community. Dave Hoerning said that the bulk of the letters received against the LID stated it was because they felt the logging trucks and equipment would tear up the road. Rick Isham said that since the public hearing had already been closed, that if another meeting were held, the concerned PAGE 2 MINUTES: 5/29/91 0106 1661 3. 4. parties would have to be sent notice of the new hearing date. After the hearing, the remonstrances would have to be recounted and the final decision based upon the information involved. Commissioner Schlangen said she was concerned about the violations and wanted to hold another public hearing to discuss the issue. Chairman Maudlin felt that it would be difficult to determine the "motivation" of the person who circulated the petition. Only people who were against the LID testified at the public hearing, but those people in favor of the LID may not have felt it necessary to testify since there were not enough remonstrances to stop the program. Commissioner Throop said he would like to hear testimony from the proponents as well as opponents. Chairman Maudlin announced that the public hearing would be reopened on Wednesday, July 3, 1991, at 10 a.m. to hear testimony for and against the formation of this LID, and then the Board would make a decision. THROOP: I'll move signature of an Order outlining the procedures described by Chairman Maudlin. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES RESOLUTION 91-012 ADOPTING FEES Chairman Maudlin announced that this public hearing would be continued to June 5, 1991, at 10 a.m. PUBLIC HEARING ON ORDINANCE 91-020 CODIFICATION OF PL-15 Before the Board was a public hearing on ordinance 91-020 adopting Title 18, Deschutes County Zoning Ordinance, of the Deschutes County Code, repealing Ordinance No. PL-15. George Read said this ordinance was part of an ongoing process to codify all the land-use regulations into the County code. Along with the codification, which was reformatting the zoning ordinance, they made some housekeeping changes in order to provide more clarity in the ordinance. However, they avoided any changes which would have any substance in determining how the zoning ordinance would be applied to individuals. PAGE 3 MINUTES: 5/29/91 0106 1662 5. Chairman Maudlin opened the public hearing. Bruce White said that legal counsel was relying upon the Planning Department's certification that this codification was accurately done. He said there would be some minor changes before it was printed, and he would come back to the Board with an order indicating those changes. This would include typographical errors and historical notations. There being no one else who wished to testify, the public hearing was closed. MAUDLIN: I would entertain a motion for first and second reading by title only. SCHLANGEN: So moved. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 91-020. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PUBLIC HEARING: ORDER 91-075 ANTI-FIREARMS DISCHARGE AREA Before the Board was a public hearing on Order 91-075 establishing various subdivisions (largely within an area known as Deschutes River Recreation Homesites) wherein the discharge of firearms would be prohibited in accordance with Chapter 9.08 of the Deschutes County Code. Chairman Maudlin opened the public hearing. Bruce White said the firearms district ordinance required that any property included in the district must be within a recorded subdivision, contiguous subdivisions, or town plat. When going through the legal description and the map which was circulated with the petition, he discovered that there were areas which were either not in a recorded subdivision or were not in a contiguous subdivision. Therefore, the final district boundary could not be as proposed on the map. Those PAGE 4 MINUTES: 5/29/91 1106 1663 lots which were not in a recorded subdivision were dropped, and the River Forest Acres Subdivision was dropped because it was not a contiguous subdivision. If River Forest Acres wished to form a separate district, they would have to go through the process on their own. A map with the revised boundaries was sent to James Cate who was one of the chief petitioners. James Cate, 17254 Satterlee Way, Bend, testified in favor of forming the district. He thought there was an error in the legal description which was published since Lots 2 and 3 in Lyle Acres were left out. Mr. Hansen had brought this to his attention. Bruce White said it appeared that the description which was published had left this area out. Rick Isham said that in order to include this area in the district, additional notification of the change would have to be given to property owners in the area to be added, to allow them an opportunity to testify in support or opposition. He recommended that the Board continued the public hearing and issue a corrective notice to inform the public that Lots 2 and 3 were being added to the hearing on the formation of this district. Frank Bohannon, 56648 Lunar Drive, Bend/Sunriver, testified that he owned two lots in this area, one in Lyle Acres adjacent to a lot in block 3. He had no concern about prohibiting the discharge of rifles and pistols, but he felt the water fowl hunting rights on the water should be maintained. He said they were told buy the people circulating the petitions that the restriction would only involve rifles and pistols but not shotguns. He felt the petition had been misrepresented to them if this was not the case. Commissioner Throop asked Mr. Bohannon if he wanted to be able to stand on private property on the east side of the river and shoot at waterfowl over the river. Mr. Bohannon said he felt that was a public right. From his property it would be shooting east across the river. He didn't want to hunt off from his property, but he felt the water fowl rights along the river should be maintained. Chairman Maudlin said he didn't know how the anti-discharge of firearms district could be formed without including shotguns. Mr. Bohannon said he felt that compromise language could be written so that water fowl hunting with shot guns would only be limited in areas adjacent to properties with a domicile. Steve Grim, 17735 Old Wood Road, Bend/Sunriver, said he was the head of the property owners association and the water board for Oregon Water Wonderland. He said no shooting or PAGE 5 MINUTES: 5/29/91 0106 1664 hunting was allowed from their side of the river which was across from the DRRH. He had met with the Sheriff's Department and was told that the boundary fell on the water. They were not able to stand on the Oregon Water Wonderland side and shoot because of their CC&Rs. He agreed that there was no need for the pistols or high powered rifles in the area. He didn't understand why this issue was even brought before the Board since he couldn't remember any calls regarding insurance damage or anyone being hurt. Since they were only allowed to use steel shot starting this October, which would reduce the range by 50%, he felt any damage from hunters would be reduced. He felt DRRH should leave their waterways open to the public. Hunters could currently shoot while floating down the middle of the river or while standing on the bank of DRRH. Oregon Water Wonderland was closed from General Patch Bridge to Harper Bridge on the east side of the river. Commissioner Throop said this proposal would leave the river open for hunters, however they couldn't shoot from the bank. Mr. Grim felt that closing the DRRH side of the river would limit access and egress to the river for hunters. Sandra Peer, 56270 Solar Dr., Sunriver, said she lived right on the river in DRRH. She agreed with Mr. Grimm. Last year a shot went by her when she was outside her home, and she wanted hunters to use more care when shooting while floating down the river. She was a hunter and had nothing against hunting, but wanted something in the ordinance that would keep the hunters from shooting toward homes. Chairman Maudlin said that was already a law but was difficult to enforce. Denny Sullivan, 56520 Eclipse Drive, testified that he was also a hunter and lived on the river. He didn't understand why anyone would want to hunt in this area since the ducks were very tame and were fed by the property owners. He said it "was like shooting ducks in a rain barrel." The area was no longer rural, and there should be no hunting there. Chairman Maudlin pointed out that the river was not under the control of Deschutes County and, therefore, the County could not tell people they could not float the river and shoot ducks. What was being considered at this public hearing was whether to close a large area along the west side of the river to shooting of any kind. Jack Bradley, 56271 Stellar Drive, Bend, in DRRH, testified against the formation of the district. Everything that was being discussed was already covered by laws, and he didn't feel there needed to be another ordinance to cover the issue. PAGE 6 MINUTES: 5/29/91 0106 1665 If the laws currently in effect could not be enforced, what was the point in creating new ones. He didn't feel that any hunters would intentionally endanger someone's life, but there were "mishaps." However another law was not going to change that. James Cate testified that a letter had been received from the Oregon Hunter's Association stating their agreement with the formation of the district. They also had a support letter from the Department of Fish and Wildlife as long as the river would not be closed. He said they were not trying to close the river. He just didn't want a recurrence of what happen to Karen White, who stepped outside and got shot. They did not live in a wilderness area anymore. Mr. Bohannon said there was an area where the Little Deschutes came into the Big Deschutes which was all blank land across from DRRH and shooting wouldn't be a problem. He felt the area should be looked at on a case-by-case basis to determine where shooting could be allowed. If shooting went toward the golf course, there probably wouldn't be anyone using it when the snow was on the ground. He thought that on the Sunriver prospectus it stated that there was an implied access on the property for historic water fowl hunting. Chairman Maudlin continued the public hearing until June 19, 1991, at 10 a.m. 6. ORDINANCE 91-006 ADDING RECYCLING SECTIONS Before the Board was consideration of Ordinance 91-006 which would add Section 13.28.025, Rates - Cost of Recycling; and amend Sections 13.28.030, Rate Adjustments - Application; 13.28.040, Rate ADjustments - Review Requirements; and 13.28.060 Rate Adjustments - Public Hearing - Considerations. Terrence B. O'Sullivan, 1070 NW, Bend, said he had some concerns which he felt all of the haulers had. Commissioner Throop asked why he was coming at the eleventh hour to make his concerns known. Mr. O'Sullivan said that in March of 1990 they entered into a memorandum of understanding regarding what would be happening regarding recycling. Late January of 1991, he received the first draft of the proposed ordinance to implement that memorandum of understanding. Mike Mills and he responded with their comments in February of 1991. The next information he received concerning the proposed ordinance was delivered to his office the previous day by Bruce Bailey. Bruce Bailey had received the language on May 22 or 23, but they couldn't get together because Mr. O'Sullivan was out of town. He had a couple of suggestions in language which he felt would be to the Board's benefit. He said they didn't have a problem with the proposed amendment, but he felt the PAGE 7 MINUTES: 5/29/91 0106 1666 wording could be better to give the Board the ability to act a little faster. He felt that with the current language, if the Board wanted to implement a rate change, they would have to go back to the committee for review. He suggested language that would allow the Board to directly implement the rate change, since the committee would have already been involved in the recommendation of the change to Board. Chairman Maudlin said he had been told that all of the parties were in agreement regarding these issues prior to the development of this ordinance. Mr. O'Sullivan indicated they were not saying there wasn't an agreement or that there was anything wrong with what was proposed, he just thought changing the language would give the Board some greater flexibility. Bruce Bailey said that part of the reason for making the change in the ordinance was to give the Board flexibility in initiating rate changes. He said Terry O'Sullivan was suggesting that before the Board would initiate a rate change, they would already have the recommendation of the advisory committee. However as the language was presently written, it would require the Board to go back through that process when they wanted to initiate new rates. Therefore a rate increase request from the Board should be treated differently in the language than if an individual company came in with a request. Rick Isham said the ordinance had been prepared with the assumption that any Board initiated rate change would be reviewed by the Committee which would add time, but had not been expressed to him as a concern. The idea of the language was that the Board would initiate rates, but ultimately the Solid Waste Advisory Committee would be making a review of those rates, and then would come back to the Board. He felt this process was good because there was a non-elected body, which was representative of the program, doing a review of the Board initiated rates even though it did add time to the process. Larry Rice said the original intent was to have Solid Waste Advisory Committee review it, but in this instance, the committee had already reviewed the issue and recommended the rates to the Board. He never envisioned that after the committee made their recommendation and the Board held their hearings, that the rates would have to go back to the committee. He felt that postponing this issue another week would not create a problem. Chairman Maudlin continued this item until June 4, 1991, when County Counsel would come back with language which would take into consideration the concerns discussed at this meeting. PAGE 8 MINUTES: 5/29/91 0106 1667 7. 8. 9. RESOLUTION 91-044 DESIGNATING BUILDINGS NONSMOKING Before the Board was signature of Resolution 91-044 redesignating areas of the Justice Building where smoking was permitted and designating the ESD building as a non-smoking building. THROOP: I'll move signature of Resolution 91-044. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES RESOLUTION 91-045 TRANSFERRING APPROPRIATION Before the Board was consideration of Resolution 91-045 which would transfer appropriations in the amount of $90,000 within various funds of the budget. SCHLANGEN: Move signature. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES COSTS ASSOCIATED WITH THE INCORPORATION OF SUNRIVER Rick Isham said he had spoken with Eric Johanson at Public Financial Management, and their estimate of the costs to do a full analysis and attend at least two public hearings and provide a written report substantiating their testimony would be $5,200. The analysis of the financial feasibility statement including the hiring of an expert witness who would analyze the feasibility statements to determine if it were realistic, to determine if it met appropriate public financial review, and whether it had adequately considered the actual costs of the operation of the proposed city. He also talked with Alan Johnson of Johnson Close, attorney at law in Eugene, and asked for an estimate of costs to provide support for his office in analyzing developing issues resulting from a petition for incorporation, legal support in terms of making a decision, and assistance in the development of findings and fact which could be adopted in any final decision. They said it could range from $10,000 to $100,000+ if there were appeals. Rick Isham suggested a maximum authorization of $12,000 for this work. He requested to be authorized to incur costs not to exceed $17,200 in anticipation of the filing of the petition for incorporation. Before this level could be PAGE 9 MINUTES: 5/29/91 0106 -16(;s exceeded, he would bring the issue back to the Board for further authorization. In conjunction he wanted to work with the Community Development Department to present a draft ordinance amending the fee ordinance so that when the costs involved in an incorporation exceeded the minimum fee which was paid up front, the applicant would have signed a contract agreeing to pay any additional fees. Otherwise these additional fees would have to be paid out of the general fund. Commissioner Throop felt it was essential that the applicants for incorporation pay all of the costs to the County otherwise all other tax payers in the County would be paying for their incorporation application. Commissioner Schlangen agreed. Rich Isham felt the petition would likely be filed because it only required that 20% of the registered voters within the area signed the petition in order for it to be filed. The Board asked Rick Isham to work with Karen Green, Community Development Director, regarding the costs associated with the filing of an incorporation application and report back to the Board. 10. WEEKLY WARRANT VOUCHERS Before the Board were weekly bills in the amount of $204,884.87. THROOP: Move approval subject to review. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 11. TAX REFUND ORDER 91-074 Before the Board was correcting a clerical SCHLANGEN: Move s THROOP: Second. VOTE: THROOP: SCHLANGEN: MAUDLIN: signature of Tax Refund Order 91-074 error in the amount of $1,589.93. ignature. YES YES YES PAGE 10 MINUTES: 5/29/91 0106 1669 12. MP-90-88 FOR HEIERMAN Before the Board was signature of a minor partition creating two lots on 329 acres along Coyner Avenue in Redmond for the Heiermans. THROOP: I'll move approval of the minor partition. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin recessed the meeting until 3:30 p.m. Chairman Maudlin reconvened the meeting at 3:30 p.m. Board members in attendance were Dick Maudlin, Tom Throop, and Nancy Pope Schlangen. Also present were Kevin Harrison, Planner and Bruce White, Assistant County Counsel. 13. DECISION ON JOHNSON APPEAL OF APPROVAL OF MC-91-3 Before the Board was a decision on the Johnson appeal of the Hearings Officer's approval of MC-91-3 requesting an alternate road access via a private easement in Wild Horse Ridge Subdivision. Chairman Maudlin said there was some written testimony received after the public hearing and a site visit was made. Commissioner Throop said he did not feel that approval of this access would set a precedent since each action would be considered on its own merits. Bruce White said that the criteria which was being applied in this case were from the purpose section of the subdivision ordinance which set forth a list of considerations under the subdivision ordinance, i.e. encouraging well planned subdivisions, encouraging development in harmony with natural environment, and safeguarding the interests of the public, the applicant and the future lot owner. Therefore the Board would have to make a determination on a case-by-case basis in each case. Commissioner Throop said he was prepared to support the application and deny the appeal. He felt this was the only parcel which would benefit from having access to this network of roads, and therefore it would be a one-time issue. The parcels which were north, east and south, all had a series of roads to which the were connected. The zoning to the east was EFU-80 and there probably wouldn't be a lot of new parcels in PAGE 11 MINUTES: 5/29/91 0106 16'70 that area. He felt the application was a better use of the existing road system with fewer impacts than creating a new road which would have some major visual impacts as well as impacts along the old creek bottom. Although it was not a part of this decision, he suggested exploring the possibility of converting these road from public to private. He wouldn't support doing that in most cases, however in this situation, he didn't see any other parcels which would need to connect to these roads. Commissioner Schlangen also supported denial of the appeal because she did not feel it was precedent setting, and she felt the visual and hillside damage would be greater if the road came up from the bottom of the hill. With the 100 foot set back, there was no building site at the bottom of the hill. She felt the best access to the only available building site on the parcel was from above through Wild Horse Ridge. She was comfortable with the owners' assurance that the road maintenance assessments would be taken care. Bruce White suggested that the Board make a finding that the creation of one additional lot accessing off the subdivision would not necessarily create any impairment of livability because the traffic would not be increased greatly. Commissioner Schlangen said she agreed with Mr. White's statement and wanted it added as a finding. Commissioner Throop asked whether the parcel owners participation in the road improvements could be a condition for approval. Bruce White said the Board could encourage it but could not be require it. Commissioner Maudlin suggested that the parcel owners be required to join the homeowners association, and then they would have to pay homeowners and road maintenance fees which were agreed upon and abide by the CC&Rs. Bruce White said the CC&Rs would only apply to those lots upon which it were a recorded restriction, and this lot would not have been part of the restricted area. He felt it was voluntary and had to be accepted on faith. He said that membership in the owners association would not obligate them to do anything. Commissioner Maudlin said he walked up and down the hill on this parcel, and there was no access on the property that would get them up that hill and meet the 10% grade restriction. There might be a way if they came across the neighboring property and made two switchbacks. The proposed building site was only about 200 feet from an existing logging road on the top which attached right to the McGillicudy PAGE 12 MINUTES: 5/29/91 010 6 16'71 driveway. So nothing would be accomplished by requiring the use of the lower road when the upper road would probably be used anyway. He did not feel that one additional family would create that much more traffic or would create a problem for the other property owners. Concerning whether to make the roads private, he felt that in the long term there might be a time when the County would need access to this system of roads. THROOP: I would move that we uphold the hearings officer's decision and I guess I'd say let's go ahead and leave in the provisions that the hearings officer put in regardless of the advice we get from Counsel and if somebody wants to contest it in court, have at it. Mrs. Wheeler-Bartol expressed concern that the decision was more susceptible to appeal if the Board included conditions which Counsel recommended be taken out. Bruce White said he did not feel there would be any standing for an appeal on this issue to LUBA since it was not raised during the hearing. Bruce White said he felt there needed to be some supplementary findings that would address the criteria under Section 17.04.020 because the hearings officer's decision had not addressed it (i.e. livability, encourage development harmony with the natural environment). THROOP: Well let's make as a part of my motion then to add what Bruce is describing here which speaks to the fact that this is not negatively impacting the livability of the area and in fact creates fewer negative impacts than an access road from the bottom. SCHLANGEN: I'll second that. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES DES COUNTY BOARD OF COMMISSIONERS ss N BOCC:alb la gen, mmComm '-s~ o e~. in, h it an PAGE 13 MINUTES: 5/29/91