1991-29940-Minutes for Meeting October 02,1991 Recorded 10/10/199191-29940 0107 1776
MINUTES Vis -91 , C'j f
0
DESCHUTES COUNTY BOARD OF COMMISSIONERS'
October 2, 1991 0."
Chairman Maudlin called the meeting to order at 10 a.m.
members in attendance were: Dick Maudlin, Tom Throop and Nan' y
Pope Schlangen. Also present were: Rick Isham, County Counsel;
Brad Chalfant, Property Manager; Bruce White, Assistant Legal
Counsel; and Kevin Harrison, Senior Planner.
1. CONSENT AGENDA
Consent agenda items before the Board were: #1, appointments
to Deschutes County's Regional Strategies Advisory Committee;
#2, appointment of Brad Chalfant to Historic Landmarks
Advisory Group; #3, appointments of Jim Fort and Tom Simpson
to fill unexpired terms of John Janssen and Sandra Irving on
the Special Road District #8 Board of Directors; #4, signature
of Amendment #4 to the 1991-93 Mental Health Intergovernmental
Agreement; #5, signature of Conservation Easement for Hadley
property in Oregon Water Wonderland; #6, chair signature of
liquor license application for Jackpot Food Mart and renewal
of Champion's Restaurant and Sports Lounge in Sunriver.
Chairman Maudlin removed item #1 from the consent agenda and
asked for approval of consent agenda items 2-6.
SCHLANGEN: So moved.
THROOP: Second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
2. REGIONAL STRATEGIES ADVISORY COMMITTEE
Commissioner Throop said Deschutes County had a thirteen
member regional strategies committee of which twelve members
were ready to appoint. The recommended appointments were:
City of Redmond - Ron Bryant; City of Sisters - Gordon Petrie;
Deschutes County - Tom Throop; Bend Chamber of Commerce - Rick
Hert; LaPine Chamber - Beverly Toney; Redmond Chamber - David
Bishop; Sisters Chamber - Stewart Weitzman; CORA - Greg
Custer; COEDC - Leland Smith; Deschutes County Fair Board -
Mick Tye; COCC - Bob Newhart; Sunriver Chamber - Laura
Brownwood; and City of Bend - to be announced after City
Council meeting this evening.
The Board's intention was to convene this committee and begin
the process since the overall strategy needed to be
PAGE 1 MINUTES: 10/2/91
,HED
i�"-,
0107 1777
recommended to the Deschutes County Board of Commissioners by
November 1, 1991.
THROOP: I'd move appointment of the twelve with the
addition of whoever the City of Bend appoints this
evening.
SCHLANGEN: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Commissioner Throop said that he had been approached by Linn
County to see if Deschutes County would be interested in
joining them in a tourism strategy and there was a possibility
of joining with Klamath County for a high technology strategy.
3. DECISION ON APPEAL OF FREUND PROPOSED CLUSTER DEVELOPMENT NEAR
SISTERS
The Board held a public hearing concerning the appeal of the
Hearings Officer's approval of a 41 -unit cluster development
in an F-3 zone near Sisters for Jerry Freund on September 25,
1991. The decision on the appeal was deferred to this
meeting.
Bruce White went through the criteria and addressed some of
the testimonv that related to that criteria.
Concerning the wildlife area combining zone criteria, he said
there didn't appear to be any issues in dispute. Staff had
interpreted under Section 18.88.050 that they apply to cluster
developments as well planned developments which was supported
by the Comprehensive Plan.
Section 18.44.040, limitations on conditional uses: he didn't
see these criteria addressed in the applicant's burden of
proof, however the Hearings Officer did make findings. He
said he felt these criteria did apply and must be found to be
satisfied.
(1) The use must be established on nonproductive timber
lands. Consistency with farm and forest uses didn't appear to
be an issue to the appellant. One could argue that because
the County allowed for cluster developments in forest zones,
it was consistent with forest uses although the plan did not
speak to any kind of residential development in forest zones
other than destination resorts.
(2) The use does not interfere with accepted forest
management practices. The applicant did not specifically
address these criterium. The appellant had used the Hearings
PAGE 2 MINUTES: 10/2/91
0107 1778
Officer's findings that there were no farm uses on adjacent
properties was unsupported by the evidence. This was an issue
of fact that the Board may need to determine. The appellant
also argued that the Hearings Officer findings on
noninterference were inaccurate as a matter of law. He felt
the appellant's arguments in this regard were valid. In order
to make findings which were sufficient, one must identify what
the existing or potential forest practices were on the
surrounding lands, and then analyze them based upon the
impacts of the proposed use to determine whether the
development would interfere with those uses. Applicant had
performed no analysis in this regard other than to say that
the project would be developed so that it would have no impact
on the development of forestry on the existing properties. He
did not feel that this statement could substitute for the kind
of analysis that was needed.
(3) The use does not alter the stability of the overall
land use pattern. The applicant did not address this
criterion.
(4) The use was situated upon generally unsuitable land
for timber production and production of farm crops and
livestock. He said the first issue to be considered was what
part of the parcel would be reviewed in making this decision.
The Hearings Officer focused on just the part upon which the
cluster was to be located. The appellant had pointed out, and
he agreed, that based upon the Smith v. Clackamas County case
which was currently on appeal to the Supreme Court, the County
would have to consider the parcel as a whole, not just the
part where the use was to be located. Because Deschutes
County's language in this section was identical to that in the
Smith case, he believed the County would have to use the Smith
analysis. Therefore, the Board would need to look at the
productivity on the parcel as a whole. There had been
conflicting testimony concerning the productivity of the
parcel as a whole. The appellant submitted information
tending to show that the parcel as a whole was productive for
timber purposes. The Comprehensive Plan Map indicated that
the soils were not productive, however the map was not
conclusive on this issue. The resource element of the
Comprehensive Plan noted that the general nature of the soil
map made it probable that some areas of the map were not
properly classified, and that F-3 lands may be converted to F-
1 or F-2. He said the Board also needed to find whether the
parcel was situated on suitable land for production of farm
crops and livestock. He didn't think that this criterion was
independently analyzed.
Section 18.128 concerned cluster development criteria. The
applicants did address this criteria on their burden of proof.
(1) Was there need for residential uses in the immediate
area of the proposed development. There was some dispute
between the appellant and the applicant on how this would be
PAGE 3 MINUTES: 10/2/91
0107 1779
interpreted. So the question for the Board was how, as a
matter of policy, would they interpret that need. The
applicant felt it should be determined by whether there was a
market for new lots and used the 50% analysis suggested by the
policy. The appellants felt it should be determined on a
strict review of need that was referred to in Comprehensive
Plan Policy #1 which she believed was a strict limitation of
dwellings outside urban growth boundaries when there was
excess capacity for housing within nearby urban growth
boundaries. The Hearings Officer didn't accept the market
demand approach but did find that the 50% test had been met.
If the Board decided to apply the guidelines suggested by
Rural Residential Policy #1, they would need to resolve
discrepancies in the figures used by the applicant and
appellants in the test. (Why applicant used only 45 lots in
Aspen Lakes Subdivision versus 125 which the appellant used.
Why applicant referred to only 90 lots in Squaw Creek Canyon
Estates. Why it was permissible to exclude 151 platted lots
in Squaw Creek Canyon Estates. To be far to the applicant, he
suggested subtracting from the total those lots in the
adjacent Cascade Woods unrecorded subdivision to the east
which were not legal lots of record --staff felt there were
approximately 12 legal lots of record out of the 56 lots in
that subdivision which he thought included the 16 lots which
Mr. Bukser consolidated.) Appellant referred to the Still
case in her comments which dealt with the need question. He
felt this case would only be applicable if the Board decided
that the Comprehensive Plan did not prescribe the 50% test as
the only measure of need.
(2) What were the environmental, social and economic
impacts. The primary issues appeared to be the impact of
increased traffic and water availability. The appellant did
raise the issue of Comprehensive Plan Policy #7 concerning
draught hazards which the Board would need to address in its
decision if they felt it was applicable.
(3) What was the effect on the rural character of the
area. This was an issue the Board would have to deal with
based upon the evidence supplied by both sides.
(4) What was the percentage of open space required.
Subsection B(1) read in "the Forest Use Zone, development
shall be limited to 25% of the land." The appellant stated
that the Comprehensive Plan had a 20% limitation. The facts
showed that as measured by the applicant, the developed area,
which included a 150 foot buffer strip would take up 25% of
the area. The 25% figure in the zoning ordinance included the
150 foot buffer while the Comprehensive Plan was opened to
interpretation as to whether the 20% would include the buffer.
It was staff's interpretation that the difference had always
been explained by the absence of the 150 foot buffer in the
Comprehensive Plan.
PAGE 4 MINUTES: 10/2/91
0107 1780
The appellant had also argued that there were certain
provisions in the forest zone under Section 18.44.050 which
should be applied. This cross reference had inadvertently
been left out during codification. Staff did not find this to
be a valid argument since staff was bound to apply the
ordinance as it read on the day that the application was
accepted.
Commissioner Throop said he thought this application was a
"wake up" call for Deschutes County government and citizens.
Over the last six years, more than half of the dwellings
approved in Deschutes County were outside the urban growth
boundary which was the worst record in the state. Because of
this, the County was under tremendous scrutiny and a law suit
was being prepared regarding this issue. Deschutes County had
one of the first Comprehensive Plans acknowledged in the state
and had loose plan provisions for farm and forest zones. The
County had received numerous extensions for completing period
review, and it was clear that the County would not be getting
any more. The Comprehensive Plan needed to be reviewed to
bring it up to date with State law, rules, and changes in
court cases or the consequence could be enforcement orders.
Commissioner Throop continued the first issue he was concerned
with on this application was "need." The urban growth
management study which had just been completed indicated that
Deschutes County already had a 23 -year supply of lots in
exception areas. Within a three-mile radius of the subject
parcel, the applicant only met the 50% test by excluding the
Squaw Creek Canyon Estates. Commissioner Throop did not
understand the methodology of Bill Reed's October 1, 1991
letter. The issue was "how many lots" not "what kind of
lots." Plus Goal 10 did not discuss the need for "second
housing" but about the need for "basic housing," while the
applicant had indicated that the cluster development would be
primarily "second housing." His next concern was about
"whether or not the application alters the overall stability
of the land use pattern in the area and whether or not the
application adversely affects the rural character of the
area." He felt the applicant's material was not sufficient on
this point and had not met the burden. He concluded, after
going through all the information, that the character of the
area was rural with public lands and F-2 lands on two sides of
this parcel. The east side was RR -10 but undeveloped. The
approval of this application would move the urban -rural
interface line and result in sprawl further into forest lands
and lands which supported wildlife. The development could
have a detrimental affect on a parcel owned by the Nature
Conservancy which was managed as wildlife habitat. These
points were strongly supported by the letters from the Sisters
Rangers District, the Oregon Department of Fish and Wildlife,
and the Oregon Department of Forestry.
PAGE 5 MINUTES: 10/2/91
0107 1781
Commissioner Throop said he was also concerned with the
requirement that development be on lands generally unsuitable
for forest land production. The materials indicated that the
majority of the land was mixed ponderosa pine/juniper site
class 6 which was the lowest or second lowest level, however
it was a site class that was designated as having commercial
productivity potential in the Comprehensive Plan. The Smith
v. Clackamas County case required that the County look at the
entire parcel not just the development area. Also, part of
the land was specially accessed as forest lands. Development
would remove the productivity capability for the future. The
applicants stated that the timber lands would be managed
primarily as a wildlife refuge rather than general forest
land. Development on that parcel in this rural area would
produce conflicts with the management of contiguous forest
lands.
Another concern was the effect of the development on wildlife.
This parcel was in the Metolius deer range and development
would significantly reduce the capacity of that habitat by
adding an additional 41 dwellings. It would bring more
people, traffic, and dogs to a currently undeveloped area.
His last concern was Natural Hazards Policy #1 because he felt
this development would add to the wild fire burden of the
area.
He felt the application could not meet the standards of the
Comprehensive Plan or the F-3 ordinance or the Cluster
Development Ordinance. Urban development was to be emphasized
within the urban growth boundaries. There was a letter from
the City of Sisters which expressed deep concerns about public
facilities and services that these kinds of rural developments
demanded, and how Sisters was unable to address those needs.
The City of Sisters did not feel that urban development should
sprawl across the rural lands in the Sisters area. He felt
putting concerns about mitigation of dogs, ORVs, and fire arms
in the CC&Rs was "dreaming and impossible." The secondary
lands pilot which Deschutes County produced as part of the
second lands project would have shown this parcel as primary,
not secondary. For all these reasons, he wanted to deny the
application.
Commissioner Schlangen said she was also concerned about the
criteria concerning nonproductive timber lands. The
interpretation was that all lands should be considered not
just the developed area. She didn't feel the F-3 standards or
the Goal 10 criteria were being met. She was concerned about
the detrimental effects on the winter deer range. Because of
those reasons and some that Commissioner Throop had outlined,
she wanted to deny the application.
PAGE 6 MINUTES: 10/2/91
Chairman Maudlin said there was a large amount o ® rit r 2
addressed in the staff report that he felt was in opposition
to Bruce White's report, and a number of items which Mr. White
brought up were not addressed in the staff report. After
reading the application and the Hearings Officer's decision,
he thought it was the best set of findings he had ever seen.
He felt the County's record of housing outside of urban growth
boundaries was not the worst record in the state but the
"best." Everyone did not want to live inside an urban growth
boundary or in an urban setting. He said that developing the
existing lots would alter the overall use in the area too, so
this development would not make any difference. The
Department of Forestry and Fish and Wildlife were "lukewarm"
on this application, but there concerns were addressed in the
findings. He didn't know how Commissioner Throop determined
that the parcel would have been considered primary and not
second lands, but felt it was a matter of opinion. He felt
the concerns brought up by the Assistant County Counsel should
have been brought up by the appellant, and if the County were
going to be consistent, it needed to take a position down the
middle of the road and let those concerns be addressed by
others.
Commissioner Throop said he did feel that Assistant County
Counsel was providing the Board with a staff report in this
evolutionary process. First there was a staff report, then
the Hearings Officer heard the parties argue their positions,
a decision was made, then the appeal came to the Board. The
Board was given a lengthy brief by the appellant, who was
helped by a land use watchdog group. He felt Mr. White was
trying to point out the issues to the Board, what the
proponents and opponents had to say, and areas the Board
needed to focus on in its findings. He didn't feel that Mr.
White had made a recommendation but had given an analysis of
the arguments to make sure the County Commissioners were
"working with a full deck." Regarding the rural lifestyle, he
said he also lived outside of the urban growth boundary, and
felt the rural lifestyle was an important component of the
quality of life in Central Oregon. He was a proponent of both
quality urban development as well as quality rural
development. However there were already 23 years' worth of
rural lots and parcels available outside of the urban growth
boundary. The F-3 was a resource zone and with numerous other
lots available, he didn't see any need to create new lots in
a resource zone. The needs criterion, both countywide and in
that general area, could not be met. Regarding this site
being primary lands, Deschutes County did take a model and
apply it to three test areas, and this parcel was in one of
those test areas which did not turn out as secondary.
Chairman Maudlin reiterated that this 23 -year supply of lots
was mostly in LaPine and were "places that most people don't
PAGE 7 MINUTES: 10/2/91
0107 1783
want to live." He agreed that this parcel was in a resource
zone, but felt that it would be left as a private park for
people who already lived there.
THROOP: I would move denial of the application for the
reasons stated in the discussion this morning and
then direct counsel to write a decision and set of
findings which would address the issues discussed
and the issues raised during the public hearings
and the dialogue and proceeding before us.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: NO
4. PUBLIC HEARING ON ORDER 91-107 LIPPERT ANNEXATION TO
SISTERS/CAMP SHERMAN RFPD
Before the Board was a public hearing on Order 91-107 a final
order annexing Lippert territory to Sisters -Camp Sherman Rural
Fire Protection District.
Chairman Maudlin said the Lipperts had been included in a
prior annexation, but asked to be excluded. After finding out
what their fire insurance premiums would be, they asked to the
annexed again.
Chairman Maudlin opened the public hearing. There being no
one who wished to testify, the public hearing was closed.
THROOP: Move signature of the Order.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
5. RESOLUTION 91-089 CONCERNING EXCHANGE OF LAND FOR EASTGATE
PARK
Before the Board was Resolution 91-089 declaring the intention
to exchange land with Betty Jo Rhoden for the proposed
Eastgate Park, and setting a public hearing for November 20,
1991.
Brad Chalfant said this resolution would set a public hearing
on the exchange of property that would allow the County to
acquire 80 acres within the proposed Eastgate park. He also
requested that the Board authorize signature on an exchange
PAGE 8 MINUTES: 10/2/91
0107 1784
letter which was essentially an option to conduct the
exchange, but did not bind to the County to the purchase. The
Board's ultimate decision would be made after the public
hearing.
THROOP: I would move signature of the Resolution and
setting the public hearing.
SCHLANGEN: Second.
Chairman Maudlin said he was going to vote for this Resolution
but would be taking "a long, hard look at an exchange of 160
acres for 80 acres as far as valuation."
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
6. RESOLUTION 91-090 RESCINDING INCORPORATION FEE RESOLUTION
Before the Board was Resolution 91-090 which would rescind
Resolution 91-047 concerning incorporation fees nunc pro tunc
as of June 5, 1991.
Rick Isham said that if the Board adopted this resolution one
of the following things would happen next week: (1) the Board
would have petitions for the incorporation of Sunriver before
them, or (2) the petitions would be withdrawn by the
petitioner so they could go back and correct what might be
errors in the process. Sunriver had not made the decision
which way to go yet.
SCHLANGEN: Move adoption of Resolution 91-090.
THROOP: Second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
7. WEEKLY WARRANT VOUCHERS
Before the Board were weekly bills in the amount of
$260,731.84.
SCHLANGEN: Move approval upon review.
THROOP: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
PAGE 9 MINUTES: 10/2/91
0107 1785
8. DESCHUTES SOIL AND WATER CONSERVATION PROPOSAL
Ray Curry of the Deschutes Soil and Water Conservation
District came before the Board requesting that the County
submit a letter endorsing a proposal to use County -owned
property (280 acres on Harrington Loop Road) for a proposed
project for which they were requesting grants suggested by the
Department of Agriculture.
They had discussed a number of potential projects: (1) a park
on the old Sisters high school site which wasn't used because
it was under the airport flight pattern; (2) reclamation of
the area where Sisters was redeveloping their reservoir on
Forest Service Land; ( 3 ) help with the new high school biology
greenhouse; and (4) development of a 280 -acre parcel on
Harrington Loop (the Livsay site) for a nature study area for
all of the schools in Deschutes County (observation platforms,
rain collectors, water preservation for wildlife).
The Department of Agriculture was very excited about the
fourth project and felt it had a very good chance since
Deschutes County had not received any funding in a number of
years. The first grant they were applying for was the
Planning and Implementation Grant which had $100,000
available. If awarded it would provide money to hire
technical and administrative help, then there would be funding
for implementing the plan.
Mr. Curry said they were not asking for the Board to approve
the project at this point, but just needed backing for them to
go ahead and pursue the grants. It would not commit the
County to anything, the State just needed confirmation that
the County understood what the District was planning, and that
the County did not have any plans to use the property for a
minimum of five years but hopefully the County could freeze
the property for 10 years since it was a long-term program.
He said the letter from the County needed to be approved today
because it had to be faxed to the State along with their
proposal by Friday.
MAUDLIN: I would accept a motion to send the letter as
outlined.
SCHLANGEN: So moved.
THROOP: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
PAGE 10 MINUTES: 10/2/91
0107 1786
9. TELEMATIC TELEPHONE SERVICE CONTRACT
Before the Board was Chair signature of an Inmate Calling
Service Agreement with Tele -Matic of Colorado. Rick Isham
said this was a continuation of the collect phone call
program. The rate was $1.55 for a local collect call and U.S.
West billed the party receiving the call. The provider bought
line service from U.S. West and there was a differential
between the approved tariffs and the actual charges which the
parties shared. The County used these monies to purchase,
televisions, coffee pots, exercise equipment, etc. for the
inmates. He said it was the continuation of the current
program but with a different carrier.
THROOP: I'll move approval
SCHLANGEN: I'll second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
COUNTY BOARD OF COMMISSIONERS
41ir�pj
q tTomT:a�,
ission r
Na cy Pope gen,Commissioner
D Mau lin, hairman
BOCC:alb
PAGE 11 MINUTES: 10/2/91