1991-26348-Minutes for Meeting August 07,1991 Recorded 8/28/199191-2634S
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MINUTES ^�
DESCHUTES COUNTY BOARD OF COMMISSIONERS
August 7, 1991 C "�
12,
Chairman Maudlin called the meeting to order at 10 a.m.'t- Bpard
members in attendance were Tom Throop, Dick Maudlin and Nanc-::Pope
Schlangen. Also present were: Rick Isham, County Counsel;" $ruc4
White, Assistant Legal Counsel; Karen Green, Community Development
Director; George Read, Planning Director; Roger Everett,
Environmental Health Director; Bill Newell, Building Safety
Director; Paul Blikstad, Planner; Dale Van Valkenburg, Planner; and
Larry Rice, Public Works Director.
1. CONSENT AGENDA
Consent agenda items before the Board were: #1, award of bid
for two, articulated type, front-end loaders to Pape Bros.
Inc. for $331,992; #2, award of bid for Fryrear aggregate
crushing project to lowest bidder, EUCON Corporation, for
$182,450; #3, signature of MP -90-30 creating two parcels along
Pioneer Loop for the Riches; #4, signature of road dedication
from the Riches; #5, signature of personal services contract
with Microwing for computer maintenance; #6, reappointment of
Peggy Corwin to Central Oregon Regional Housing Authority
Board of Directors; #7, signature of Order 91-105 relating to
CDD Revenue Fund nunc pro tunc as of June 30, 1991; and #8,
chair signature of OLCC license renewals for Millican Store,
Deschutes Fly and Tackle, Rock Springs Guest Ranch, Chen's
Garden in Sunriver, La Siesta Cafe in Terrebonne, and Hampton
Station.
THROOP: Move approval of the consent agenda items 1-8.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
2. PUBLIC HEARING: ORDINANCE 91-029 ESTABLISHING OUTDOOR
PROMOTION EVENT DEFINITION AND CRITERIA
Before the Board was a public hearing on Ordinance 91-029
amending Title 19 of the Deschutes County Code, Bend Urban
Growth Boundary Zoning Ordinance, a zone text amendment to
establish provisions for outdoor promotional events within the
CL, Limited Commercial, CH, Highway Commercial, and CG,
General Commercial Zones, and to amend the definitions of
street, frontage and lot line front.
PAGE 1 MINUTES: 8-7-91
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3.
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Paul Blikstad said the purpose of this zoning text amendment
was to bring the County into conformance with the City of
Bend's zoning ordinance. The City had a request to establish
a provision for outdoor promotional events at the malls, and
since the Mt. View Mall was in the County, the County needed
to have the language in its ordinance as well.
Chairman Maudlin opened the public hearing. There being no
one who wished to testify, the public hearing was closed.
THROOP: Move first and second reading by title only of
Ordinance 91-029.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Chairman Maudlin performed the first and second readings of
Ordinance 91-029.
SCHLANGEN: Move signature.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
JAIL PROPOSAL
Before the Board was discussion and decision on the proposal
submitted by the Jail Facilities Planning Committee at the
Board's July 31, 1991 meeting.
Commissioner Schlangen thanked the facilities committee for
their work on the proposal and felt they did a very thorough
study and evaluation of the future needs of the County. She
said there were two reasons she was extremely supportive of
the new facility: (1) public safety and (2) programs. The
County was currently unable to hold criminals accountable.
There were excellent community corrections programs in place,
but without jail space, there was no "hammer" for offenders
who would not follow probation rules. The County needed a
facility where criminals could be taught new skills and
receive education. the would then leave the County facility
with more skills than when they came in, and could become
productive citizens in the community and not re -offend.
Chairman Maudlin said this issue had been thoroughly
discussed. The state and federal Department of Corrections
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agreed that Deschutes County needed to increase it's jail
capacity to a minimum of 150 beds. It had been suggested that
the County build a 100 -bed facility and maintain the existing
jail for a total 150 beds. A 150 -bed facility of 60,000 sq.
ft. was estimated to cost $11.4 million. If that facility was
scaled back to 45,000 sq. ft., it would reduce the cost to a
low of $8.7 million and a high of $9.5 million. He felt the
high figure should be used to included an oversized service
area for future population growth and for funding the site
preparation. The kitchen facility would be build oversized so
that it would accommodate future growth and the kitchen in the
current jail would be closed. The number of additional
employees needed for these facilities would increase staffing
by $700,000-900,000 a year, however this increase would be
needed regardless of whether there was one facility or two.
These additional personnel costs would be part of a future tax
base, possibly May of 1992, which would not be effective until
1994 when the facility was completed. The estimated cost to
the taxpayer based upon the $11.4 million bond would be $29.01
the first year for a $100,000 home, and $14.92 during the 20th
year. Therefore, if the bond were reduced to $9.5 million, it
would cost $24.37 the first year and $12.63 in the last year.
These estimates would be slightly high because they were based
upon a County assessed value of $3.9 billion in 1992, but
according to the latest Assessor's figures, the assessed value
would be $4.2 billion which would reduce the cost to the
taxpayer. The estimated cost of the increased staff would be
$700,000-$900,000 annually and would be presented in a tax
base request. He felt that the County should present the jail
facility building measure this November, and if that was not
successful, to try again in May, 1992.
Commissioner Schlangen expressed concern that November would
be too soon since she felt the Board needed to get more public
input by holding meetings in each of the communities in
Deschutes County. Placing it on the ballot in November would
require that everything be worked out exactly by September 5
which was less than a month away.
Chairman Maudlin said he felt the work that had already been
done was an excellent basis for what needed to be done.
Commissioner Throop thanked the committee for a "superb body
of work," and thanked Chairman Dick Maudlin who had been the
"stalwart" on corrections and law enforcement related issues
for the Commission for the last several years. The committee
had given a fairly general set of recommendations which
Chairman Maudlin had narrowed to a more specific
recommendation. He supported the need for 150 beds which
could be accomplished by building a new facility with 150 beds
or building a new facility for 100 while continuing to operate
the old facility of 50 which he could support. He felt the
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financing range was "doable" and supported those figures,
recognizing it would also require an additional $700,000-
$900,000 in operations. He would support going to the voters
this November, if feasible; if not, the next election date
would be March. He suggested putting together a more concrete
proposal to be presented at public hearings in LaPine,
Redmond, Sisters and Bend to get a public response. Also, he
recommended that all local governments meet to discuss their
plans for ballot measures. In May, the County could request
an updated County tax base for operations as well as the
additional operating costs for the jails.
Chairman Maudlin wondered whether it would be necessary to
meet with other local government bodies about the jail
facility bond measure since it would be outside of the $10
maximum imposed by Ballot Measure 5, or if the joint meeting
could wait until the County was ready to go for an increased
tax base. Commissioner Throop said that Ballot Measure 5 did
exempt bonds from the $10 limitation, however he felt that it
would be better to get together soon for better coordination.
Chairman Maudlin agreed that the Board needed to hold public
meetings on the issue. He felt the Board should make the
decision on what to do, take it to the public, explain the
proposal, and ask for their support. He wanted to build an
additional facility for 100 beds while maintaining the
existing jail. The $9.5 million bond issue which would
include land acquisition. If the facility was built to
accommodate future needs, he felt the high end amount ($9.5
million) would be needed.
Dennis Maloney suggested that the Board make a motion that
there be construction of not less than 100 beds since through
competition among construction companies, the County might be
able to build more than 100 beds for the same amount of money.
SCHLANGEN: I would like to move that we build a new
facility of not less than 100 beds, that we
place a bond measure in the amount of $9.5
million on the November 1991 ballot, that we
hold public hearings in four communities
between now and October 15, 1991, that we
authorize the Chair to meet with the other
taxing entities in the County concerning the
$10 limit, and that Mike Maier and a group (of
whatever size we want to pick) be appointed to
a siting committee for siting the facility and
the cost of purchase.
THROOP: One additional friendly amendment --that we intend
to seek operational dollars at the appropriate time
in which to operate the facility.
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SCHLANGEN: Thank you.
THROOP: I'll second the motion.
Chairman Maudlin wanted it noted that the $9.5 million would
include the land acquisition costs.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Judge Michael Sullivan thanked the Board on behalf of the Jail
Facilities Planning Committee for making the criminal justice
system more effective, and for making the community more
livable. They were appreciative that the Board was attempting
to get the most for every tax dollar spent. He suggested that
since the sally port would eventually be switched to the new
facility, that there be a drive-in area reserved at the new
facility.
4. SISTER'S COUPLET
Before the Board was a presentation concerning the need for an
amended Environmental Impact Statement (EIS) for the State
Highway Division's Sisters Couplet Project.
Commissioner Throop said the Sisters Couplet Project was as
important to the City of Sisters as the jail issue was to the
entire County. He felt this project would give Deschutes
County an opportunity to help the community of Sisters decide
its future for the next 50 years. He said the proposal was
for the County to share in the costs of the amended EIS in the
amount of $12,000. This project was a high priority for
Sisters and would be a perfect partnership for the County and
the City of Sisters.
Dale Allen, State Highway Region Engineer, said that during
1989-90 the Highway Department spent about $80,000 to develop
an EIS document for a couplet in Sisters. The study was
completed and they were ready to begin construction of the
$1.1 million couplet. The City of Sisters then informed them
that they desired a different couplet. The original couplet
had Hood Street going east and Cascade going west. The
requested change was to use Main Street instead of Cascade for
the western route and would go through Forest Service property
before merging with Highway 20. This would leave Cascade
Street in the middle with two-way traffic. The Highway
Division would support the change subject to what might be
found in the EIS for Main Street. He felt this couplet would
handle the highway traffic as well as the original proposal.
The dilemma was that it would cost between $35,000-$40,000 to
revise the EIS document based upon the fees paid to the
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consultant who prepared the original EIS. The Highway
Division said those costs could be reduced to $22,000 if they
did the EIS in-house and proposed that the City pay $10,000
and the County pay $12,000.
Chairman Maudlin asked what would happen at the intersection
where Hood Street would cross the McKenzie Highway. Dale
Allen said it would cross the McKenzie Highway at a "T" which
would be comparable to the connection with other downtown
cross streets. Chairman Maudlin asked if there would be a
two-way stop at that intersection and Dale Allen said yes.
Eric Dolson, chair of the Visions/Future Committee of the City
of Sisters and Deschutes County Planning Commission Member,
explained that he was asked to be on the committee that was
updating the Sisters Comprehensive Plan. When going through
the transportation element of that plan, they analyzed what
the couplet, as originally designed, would do to the
community. The Access Oregon Route would considerably
increase the amount of traffic between the Willamette Valley
and Bend, plus the City of Sisters was developing as a
community in its own right. They felt that the original plan
would allow increased traffic in a one-way direction at an
increased speed "to tear the heart right out of Sisters."
Sisters depended on this tourist zone for its economic well-
being. They also realized that Cascade Street was only a 60 -
foot right-of-way while Main Street had an 80 -foot right-of-
way. Based on these findings, they decided to reconsider
moving the couplet to Main Street and saving Cascade Street
for the community. This would give Cascade Street a slower,
easier pace to attract the tourists and to provide a much
nicer core for Sisters. This couplet would also add 50% to
the capacity of the overall routes through Sisters, i.e.
instead of just two lanes each way, there would be three
because Cascade would still be a two-way street. They
discussed it with the Forest Service who had been seen as a
stumbling block because they had felt the Forest Service
wouldn't want to move. In March 1991, the Forest Service
acknowledged that their current facility might not be serving
their clientele "as best it could" at their current location,
and they might like to be located further west of Sisters. He
hoped that some of the cost of relocating the Forest Service
would be generated by the "captured value" from the capital
improvement costs for this property. He felt this couplet
proposal might be best for everyone. The $10,000 being
donated by Sisters to amend the EIS would come totally from
community contributions since the City of Sisters had no funds
available. When asking for contributions, support for the
change was tremendous. The biggest complaint was, "Where were
you three years ago when we did it the other way?" Sisters
currently had traffic problems on Tuesdays and Wednesdays like
they used to have on big weekends. The consensus of the
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5.
people within the City limits
a street with two-way traffic,
asked the Board for their help
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was that Cascade should remain
not a pedestrian mall. He
with this project.
Larry Rice said the Public Works Department had fund for
professional services allocated in the Road budget and
suggested taking the $12,000 out of that. Chairman Maudlin
asked if this $12,000 would be deducted for the City of
Sisters' revenue sharing funds. Larry Rice said it would not.
This would be a cooperative program with Sisters similar to
the ones already established with the City of Redmond and the
City of Bend.
Barbara Warren, Sisters City Manager, thanked the Board
allowing them to present their case on a vital issue for
Sisters. The Sisters City Council was in unanimous support of
the Hood/Main Street Couplet change, the Chamber of Commerce
was mostly in favor of it, and the community was in favor of
it. When there were large event in Sisters, the pedestrian
traffic clogged the streets (as far as Suttle Lake once).
Hopefully, this couplet will help alleviate that situation.
She said that this change would cost the Highway Division
another $1 million to build. She was sure Sisters would be
able to come up with their $10,000 contribution to amend the
EIS and hoped the Board would agree to fund the remaining
$12,000.
THROOP: I would move that the Board work with Larry Rice to
allocate the $12,000 out of non -general fund Public
Works professional services dollars to help
facilitate this project.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
MJP-91-3 FOR THE JAQUAS
Before the Board was consideration of Major Partition MJP-91-3
which would create three farm parcels of 80, 120, and 120
acres off Fryrear Road for the Jaquas. Chairman Maudlin said
that this partition was held over to determine whether
partitioning another parcel in this area would invoke the
subdivision ordinance.
George Read said the present subdivision ordinance contained
a clause "the hearings body shall deny an application for
partitioning when it appears that the partitioning is part of
a plan or scheme to create more than three parcels without
going through subdivisions as part.... pattern which has the
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effect of creating more than three parcels without
subdividing." He said that language gave discretion to the
County to decide when partitioning became subdividing. It had
been the policy of the Planning Division to look at each case
individually so there hadn't been a clear policy. He recently
prepared a policy that "anytime they reached more than three,
it really was a subdivision." This policy would be
implemented immediately. He said it had been questioned
whether the partitioner was notified that further partitioning
would invoke the subdivision ordinance, and he said "not
always." The real issue was that when you subdivided
property, you were required to put in paved streets.
Particularly in rural areas in EFU zones where there were
three parcels, and the owner wanted to create a fourth parcel,
he felt that paved streets might not be warranted. He felt
this issue should be reviewed in the road standards section
rather than when interpreting whether or not the request was
for a subdivision. In many cases, they have held that the
second time the land was partitioned to create more than three
lots, it became a subdivision, but they had also let some go
through that were not subdivisions.
Chairman Maudlin asked, in this particular situation with two
120 acre parcels and one 80 acre parcel in an EFU 40 zone, if
each of these new parcels could be partitioned into 40 -acre
parcels without invoking the subdivision ordinance. George
Read said that was correct. He said they had been more
strictly interpreting these applications in recent times and
requiring that the subdivision standards be met. The new
policy said that they would consider them all subdivisions
after the third division.
George Read said there were also a couple of other problems.
When these decisions was made it was really a discretionary
decision, and notice should have been given. This policy,
however will say they are subdivisions from here on out.
Since the decision would no longer be discretionary, notice
would no longer be necessary.
Chairman Maudlin asked if the parcels were brought down to the
40 acre minimum size, wouldn't they at least need as access
road. George Read said EFU-40 zones were different in that
they required a 25 -foot graded road which was not a County
road versus a paved county road. Chairman Maudlin said that
when 25 -foot graded public roads were built, people wanted to
know why the County was not maintaining it and paving it.
Commissioner Throop asked when and how this new policy would
be implemented. George Read said the policy would be
immediately circulated to all Planners and placed in their
policy books.
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Commissioner Schlangen asked if there was any review of
whether these parcels would be used as farm parcels, i.e.
could produce a certain income. She felt this looked like it
would become a subdivision eventually. Commissioner Throop
said he was interested in that issue also.
George Read said Deschutes County had a minimum lot size in
the EFU zones, and the state statute said that when you had a
minimum lot size in an EFU zone, it would be assumed to be a
farm parcel. This created an inequity, because when the
individual who created the farm parcel came in to get a permit
for a dwelling, they could be denied if there was no farm use
on the property. They had denied some dwelling requests when
they found it was not possible to have a viable farm unit,
because the parcel wasn't suitable for the intent that it was
being created (which was one of the subdivision criteria).
However, the state statute said that when the parcels were
over the minimum lot size, they were assumed to be farm
parcels. So when the applicant said it was a farm
subdivision, the County couldn't investigate much further if
it appeared the parcels could be farms in the future. Only
when the parcel looked like it couldn't be a farm in future,
did they ask more questions.
Commissioner Schlangen asked if the partitioner would need to
show they had water rights, etc. so they could farm the
parcel. George Read said even if they created the parcel,
they couldn't put a house on it until "they put all that stuff
on the property." They would have to have the irrigation, the
fences etc. because in order to get a farm dwelling, they
would have to have a farm use on the property. It would have
to be currently employed in a farm use.
Chairman Maudlin asked what this property was currently being
used for. Dale Van Valkenburg said that on the middle 120
acres, there was 25 acres of irrigated pasture where they
raised horses. There was some grazing on the north 80 acres
as part of a BLM grazing allotment and in the south, they
pastured the horses occasionally.
Commissioner Throop asked if George Read's interpretation of
the state statue state was that if the parcel met the minimum
lot size (EFU-40), it was presumed to be a farm parcel and
that was the only test, and whether it was going to be
retained in farm use or be a viable unit could not be taken
into consideration. George Read said yes, because in the
Deschutes County Comprehensive Plan it said that these minimum
lot sizes were farm parcels. The justification for the
Comprehensive Plan was done prior to the present standards
and, as part of period review, the County could revise all of
the farm zoning and reanalyze all of the minimum lot sizes.
However the County had been acknowledged by the LCDC with
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these minimum lot sizes. Commissioner Throop said he felt
this partition was taking a pretty good farm unit and
rendering it useless for that purpose by allowing the
requested division. George Read said the answer to that was
to change the ordinance. Commissioner Throop felt the burden
of proof should be on the partitioner. George Read said this
was a policy argument that needed to be worked out when the
County amended its comprehensive plan and rejustified the
minimum lot sizes. He said the only thing before the Board
today was signature on a plat which had not been appealed and
had met the conditions of approval for a partition.
Commissioner Throop asked what would happen if there weren't
two Commissioners' signatures on the plat. Rick Isham said
that since this partition was not called up for review or
appealed, the Board's role was to sign the plat. These issues
needed to be raised and discussed, but if they refused to sign
the plat, the applicant could appeal to the courts, and they
would be forced to sign it under a court order.
SCHLANGEN: I move signature of MJP-91-3 creating three
farm parcels.
THROOP: I'll second the motion.
The Commissioners felt strongly that this issue needed to be
closely reviewed in the near future (hopefully right after
Labor Day).
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
6. LADERA ROAD DEDICATION
Chairman Maudlin said that he thought this issue had been
resolved and was taking it off the agenda until someone came
forward and requested that it be placed back on the agenda.
7. LIQUOR LICENSE FOR THE REDMOND MOOSE LODGE
Before the Board was chair signature of a Greater Privilege
Liquor License Permit for the Moose Lodge #323 in Redmond.
Commissioner Throop said the Redmond Moose Lodge had been
forced to more as a result of the Redmond O'Neil
Junction/Highway 97 road project, and were remodeling their
new location which required County permits and inspections.
There were some problems with those inspections and,
therefore, the Moose Lodge did not have an occupancy permit.
Elsie Edmiston, PO Box 753, Crooked River Ranch, 97760, said
they were remodeling their new location. She didn't know what
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else they were supposed to do, since they had gotten their
building permits. She was not there when the inspectors came
out and wasn't sure what needed to be done.
Chairman Maudlin asked if they were operating the lodge.
Elsie Edmiston said they were holding their meetings at the
new site. Commissioner Throop said he felt that was an
illegal activity since they had not been issued an occupancy
permit. Elsie Edmiston said the "commission said to go
ahead." She thought the Planning Commission had said they
could have their meetings at the new site. Commissioner
Throop asked if they had an occupancy permit, and she said she
didn't know.
Karen Green said the reason this matter was before the Board
was because some of her staff had questioned whether the Board
should sign off on the OLCC permit when none of the CDD
requirements had been met for occupancy of the building. She
said the staff had met numerous times with Ms. Edmiston and
other representatives of the Moose Lodge to explain what was
required and were willing to do so again. Karen Green said to
her knowledge none of the requirements for occupancy had been
met. The land use planning development agreement had not been
completed, there were numerous, significant building code
problems, and there were numerous sanitation questions still
remaining concerning the water system and the necessary
requirements for a restaurant license. She did not believe
there was any basis under which they could be occupying the
building for meetings.
Commissioner Schlangen felt that if they could not qualify for
a permit to occupy the building, the Board should not allow
them to have a liquor permit. Chairman Maudlin did not want
to use a liquor permit as a "hammer" for Deschutes County code
enforcement.
Dan Nelson, OLCC, said the question of a business not having
an occupancy permit had never come up before. He said there
was already a liquor license (retail malt beverage) on the
site which had been signed off by the County, and this
application was just a Greater Privilege application.
Commissioner Throop asked if the State of Oregon was in a
position to issue a permit for a building that was not legal
to occupy under the State's own uniform building code. Mr.
Nelson said that was not a criteria for which they could deny
a license. When OLCC received a recommendation from the
County that this site should be allowed to have a retail malt
beverage license, they assumed that the zoning and permit
issues had been taken care of. He said OLCC could issue the
permit, and the County could still tell them they couldn't use
the building. Commissioner Throop said they had already been
told they couldn't use the building but were evidently using
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010'7 0686
it anyway. Mr. Nelson said the Board could recommend denial
the license based on any of the reasons outlined on their
forms, and OLCC would take these reasons into consideration,
but there was no guarantee the license would be denied.
Commissioner Throop asked if the Board could delay action on
the OLCC permit to give the Moose Lodge an opportunity to meet
the building permit requirements. Dan Nelson said that would
be okay with OLCC.
Elsie Edmiston asked why the lodge was considered "commercial"
when they were a fraternal organization. Commissioner Throop
said they would be considered a commercial facility by state
law since they could have as many or more people served there
as any restaurant.
SCHLANGEN: I move that wecontinue/postpone it for 30
days.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
8. WEEKLY WARRANT VOUCHERS
Before the Board were weekly bills in the amount of
$94,827.97.
SCHLANGEN: I move that we approve the weekly warrant
vouchers.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
9. REQUEST FOR LIBRARY FEE REDUCTION
Before the Board was a request form the County Librarian,
Ralph Delamarter, that the Board temporarily reduce the
library "second notice late book fee" from $1.00 to nothing
until the new library automation software was installed.
THROOP: I'll move approval of the request to temporarily
suspend the fee.
SCHLANGEN: Second.
PAGE 12 MINUTES: 8-7-91
0107 0687
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
10. FORFEITURE AGREEMENT WITH BRYANT EMERSON AND FITCH
This item was postponed one week.
11. DISCUSSION CONCERNING THE BELL FENCE
Karen Green said she was asking the Board to consider this
matter again, because she had received new information
concerning the status of the fence on John Bell's property.
It had previously been discussed with the Board at a work
session in April. Dr. Bell called and requested that the
County inspect his fence and indicated he had modified the
fence in such a manner that he felt it complied with the
original land use approval which was issued in April and was
modified in June of 1988. They obtained Dr. Bell's permission
to visit the site, and yesterday morning Paul Blikstad and
Dale Van Valkenburg visited the site to verify what changes
had been made to the fence. The original planning approval
approved a fence where no part of the fence would exceed six
feet in height and be painted a neutral color. They reported
back that the fence did meet the six foot height and neutral
color requirements of the 1988 approval. Therefore, did the
Board wish the County staff to proceed any further with this
matter, since the fence was now in conformance with the 1988
decision.
Karen Green continued that this case began in March of 1988
and the decision rendered by Craig Smith, then Planning
Director, and the modification were given to the Schobs. They
had a right to appeal that decision but no appeal was filed.
Subsequently, Dr. Bell sued the County to force the County to
authorize a larger fence which had originally been permitted
under the building code which was then modified by the land
use decision subsequently issued. That law suit proceeded for
two years and the Schobs were represented by Paul Speck. She
said she was in regular communication with Paul Speck
concerning the status of that lawsuit, what the issues were,
what the County's position was, and what the County's ultimate
desire was --to bring the fence into compliance with Craig
Smith's original decision. At no time during the pending
litigation did the Schobs directly or indirectly through their
attorney communicate that they were not satisfied with the
direction that the County was going or with the result the
County was seeking to obtain. The County staff has spent
hundreds of hours and tens of thousands of dollars of County
resources in litigation and in numerous settlement discussions
on this issue. The result that the County was attempting to
obtain throughout this period of time has now apparently been
reached.
PAGE 13 MINUTES: 8-7-91
Karen Green Continued that there were probably remaining legal
issues concerning the status of the original permits and land
use approval (whether they expired or were still valid), and
what effect the litigation and the stop work order had on any
of those time periods. Additional issues would be whether
under current requirements a six-foot fence would be required
at all, and whether the LM zone would apply to a six-foot
fence. She pointed out that this was an issue that might
never die because there were going to be additional legal
issues raised. She recommended that the Board exercise some
"common sense" and get out of this dispute now that Dr. Bell
had complied with the original decision, which was what the
County had been trying to achieve during this entire period of
time. She did not feel it would be a productive use of
County resources and staff time to pursue this matter further.
She also felt no point would be served by the County initiated
further litigation to do anything else with this fence at this
time. Whether the County would have to defend in litigation
would be up to the Schobs. She gave the Board photographs of
the fence as it currently appeared.
Commissioner Throop said that he drove by that fence regularly
and was surprised to hear that in was now in compliance with
what the County approved in 1988.
Karen Green clarified that when Dr. Bell originally brought in
plans for a fence eight feet in height, due to an error by
County Planning staff, no LM review was done on the fence.
The plans were examined and met all of the requirements of the
building code and a building permit was issued before Dr. Bell
proceeded with the eight foot fence. Had it been given an LM
review prior to the fence being built, she was reasonably
certain that the County would not have approved the fence as
designed, possibly not even in that location. However, it was
permitted, Dr. Bell proceeded to expend a considerable amount
of money and time beginning to install the fence. Mr. Schob
contacted the County when it was apparent that the fence was
being built. Bill Gibson, former code enforcement officer,
went out to look at it and was going to put a stop work on it
when Dr. Bell showed him the building permit. At this point,
the Planning Department realized they had made an error,
considered the options, and determined that the best course of
action was probably to reach some sort of compromise given the
County's liability at that time for the cost of all of the
fence materials, and the labor and engineering that had
already gone into it. They tried to reach a compromise that
they could accept in the LM given the fence was there and was
going to cost a considerable amount of money to tear down.
That settlement was discussed with the Schobs' attorney and
that settlement was reflected in the two decisions which were
issued in April and June of 1988. She was certain that
decision would not have been made had the fence not already
PAGE 14 MINUTES: 8-7-91
010'7 0689
been constructed, and had the County not been facing a
considerably amount of liability and cost in requiring Dr.
Bell to tear the fence down.
Rick Isham mentioned that at the time the stop work order was
issued, he made an offer to Bob Lovlien, Dr. Bell's attorney
at the time. Dr. Bell's out of pocket costs at that time were
approximately $4,500 and the County offered to completely
compensate Dr. Bell for these out-of-pocket costs. Dr. Bell
was not willing to accept that offer and subsequently fired
Bob Lovlien and hired Terry O'Sullivan to represent him. He
was currently represented by Bill Gary for Eugene. Karen
Green clarified that Dr. Bell had informed her that he was no
longer represented by anyone. She felt that common sense and
logic would dictate that the County "let this one go at this
time." It was not a totally acceptable result for anyone but,
in terms of limited resources, it did not seem to be a case
that justified going further.
Chairman Maudlin said this was the first meeting where he had
been made aware that there had been an error by the County in
issuing a permit for this fence. Commissioner Throop agreed.
Karen Green said the error had been acknowledged from the very
beginning. Chairman Maudlin said he thought Dr. Bell had just
built the fence without a permit. Commissioner Throop said
his recollection was the same, and was operating under the
same assumption. Karen Green said that when litigation began
in 1988, she had advised the Board of the status of the case,
the reason the case was being pursued, and the history of the
case. She also felt it had been discussed in the April work
session.
Chairman Maudlin said that a letter from the Schobs' attorney
said that the current fence still didn't meet the LM
requirements. Karen Green said the fence met the requirement
of the land use approval decision issued in 1988 from which
there was no appeal. If the decision were being made today,
they probably wouldn't have approved the fence. The reason
that decision was made was to compromise the County's
liability and attempt to satisfy Dr. Bell and Mr. Schob. At
the time that decision was made, it was believed that all of
the parties would be satisfied with that resolution.
Greg Hendrix, attorney for the Schobs, said concerning the
original error by the County, that an offer was made at the
time to correct the error by reimbursing Dr. Bell for his out-
of-pocket costs before the fence had been completely
constructed. If Dr. Bell had accepted the offer, he would
have had the $4,500 plus the fencing materials. Mr. Hendrix
said that when they had come before the Board in April, they
had the clear impression that the Board had decided that the
fence did not meet the criteria and something had to be done.
PAGE 15 MINUTES: 8-7-91
0197 0690
It had also been discussed that the permit had expired, and
the County had a policy that when permits had expired, the
applicant had to reapply. He said his client would not scream
if the fence remained in place until the reapplication process
had been completed. If at the end of the reapplication
process, it was determined that the fence met the LM criteria,
then that would be fine. He said Mr. Bell went through a
meaningless action to get the Circuit Court Judge to say he
didn't have jurisdiction over land use cases. Then Dr. Bell
went ahead and put the fence up despite a letter in February
1991, from Rick Isham stating Dr. Bell didn't have a right or
a permit to build the fence. Karen Green clarified that she
was the one who wrote a letter to Dr. Bell's attorney stating
that the County did not read the Court's decision to allow him
to proceed. She said whether the permit had expired at that
point was a live, legal issue for which subsequent litigation
would probably be necessary to resolve. Mr. Hendrix offered
a second possible compromise. There had been a court of
appeals case which said that the circuit court could not make
a decision on whether the permit had expired, and that it was
a decision for the County to make. If the County did not want
to press the issue, he offered to have the Schobs carry the
burden of moving this case forward. In order for the Schobs
to go forward, they had to have a determination from the
County that the permit had expired. With that, he could take
the case forward and the County "wouldn't have to spend
another nickel on it."
Commissioner Schlangen asked when the fence was actually
built. Greg Hendrix said it was built between February and
April of 1991. Dr. Bell had part of the framework and a few
posts up prior to that. Karen Green said that all of the
superstructure was completed when they put a stop work order
on the job. Greg Hendrix said that after the stop work order
there was no construction on the fence for over one year which
was what the ordinance required. He continued that if the
County did not determine that the permit had expired, the
Schobs would lose their case and "that ugly monstrosity stays
there."
Rick Isham said the County had carried the building permit as
an expired permit because, under the building permit, if there
was no inspection within 180 days, a new application would be
required. A six-foot fence was not regulated by the uniform
building code, and therefore, the fact that it was being
carried as an expired building permit might be irrelevant. So
he felt the issue was narrowed down to the Craig Smith LM
review permit, which was the only permit which would apply to
the structure as it was measured by the Planning staff.
Chairman Maudlin felt the Board needed more information, and
decided to continue the discussion at a meeting already
PAGE 16 MINUTES: 8-7-91
0107 0691
scheduled with the Community Development that afternoon at
3 p.m.
12. LIMITATIONS ON DISCUSSION AT HEARINGS FOR TWIN BRIDGES AND THE
MOODY CALL UP
Before the Board was a recommendation from Karen Green that
the Board limit testimony at the Twin Bridges Site Plan Review
and the Moody call up. At the Twin Bridges hearing, she
recommended limiting testimony to the conservation easement
and the escrow instructions for that conservation easement.
At the Moody hearing, the testimony should be limited to
whether the Hearings Officer's disposition, a conditional
denial to wait for the plan amendment, was an appropriate
disposition. If the Board agreed, the Planning Department
would put that information in the notice being sent to the
parties, the public, and the newspaper.
THROOP: I move that the Commission direct Karen to
implement her recommendation.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
13. BORDEN BECK PARK DEDICATION
Brad Chalfant reported that through a conversation with Dave
Jaqua, who represented Fred Gunzner, he had come to the
conclusion that the simplest process for resolving the issue
of Borden Beck Park would be for the County to be the
recipient of the property, then the County would transfer the
property to State Parks or other recipients (Central Oregon
Park and Recreation). If for any reason a recipient could not
be found, the County would have the option of just holding the
property and not developing it. Handling it this way would
speed up the process considerably. The purpose was to remove
the reversion that was placed on the deed so that it wouldn't
go back to the grantor.
THROOP: I would make the motion that Brad's recommendation
be followed.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: ABSTAINED
PAGE 17 MINUTES: 8-7-91
010'7 0692
14. ORDER 91-103 TRANSFERRING CASH
Before the Board was signature of Order 91-013 transferring
cash in the amount of $1,200,000 within various funds of the
Deschutes County Budget.
THROOP: I'll move signature of the Order.
SCHLANGEN: I second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
15. MP -91-30 FOR THE BASSETTS
Before the Board was signature of minor partition MP -91-30
which would create three lots in an R-4 zone in the Redmond
Urban Growth Boundary for the Bassetts.
THROOP: I'll move signature.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
16. DEVELOPMENT AGREEMENT FOR GARY BELL
Before the Board was signature of a Development Agreement for
Gary Bell for a manufactured home sales facility in a CH zone.
THROOP: Move signature.
SCHLANGEN: I'll second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Chairman Maudlin suspended the meeting of the Deschutes County
Board of Commissioners and convened the meeting as the Governing
Body of the Deschutes County 9-1-1 County Service District.
17. ORDER 91-098 AUTHORIZING CONSTRUCTION AT 9-1-1 BUILDING
Before the Board was signature of Order 91-098 authorizing the
construction of an addition to the existing 9-1-1 facility.
Bruce White said this order would authorize the 9-1-1 district
to construct a facility that had already been budgeted for.
PAGE 18 MINUTES: 8-7-91
0157 0093
It also gave the 9-1-1 Director authority to get bids for the
construction.
Commissioner Throop asked who owned the building. Jana
Snowball, 9-1-1 Director, said the City of Bend owned the
building. She said the City and the County were working out
a lease agreement that guarantee that 9-1-11s investment would
be protected if the City were to sell the building. Bruce
White said he had spoken with Liz Fancher, City legal Counsel,
and felt the City was willing to work something out in this
regard, and felt the project should move forward on the
"faith" that the license agreement would be signed.
SCHLANGEN: I move signature of Oregon 91-098 authorizing
construction.
THROOP: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
DESCHUT COUNTY BOARD OF COMMISSIONERS
1 ; 1�
Throop,
Nancy Pope qd
Dick Maudlin,
BOCC:alb
7 fission r
hla gen, Commissione
Chairman
PAGE 19 MINUTES: 8-7-91