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1991-32102-Minutes for Meeting October 01,1991 Recorded 10/24/199101080011 92e3,Z0ti �? MINUTES" SHIELDS PLAN AMENDMENT AND ZONE CHANGE PUBLIC HEARING`-��, DESCHUTES COUNTY BOARD OF COMMISSIONERS w`r October 1, 1991 Chairman Maudlin called the meeting to order at 7 p.m. Board members in attendance were Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present was Kevin Harrison, Senior Planner. Chairman Maudlin said this public hearing had been continued from August 28, 1991, and asked the Commissioners about any ex parte contacts they might have had concerning this hearing. Commissioners Throop, Schlangen and Maudlin said they had hand none. Chairman Maudlin asked if there was anyone who wished to challenge and member of .Board to hear this matter. Linda Crew of 51473 Hinkle in LaPine said she wanted to challenge the entire hearings body for bias and prejudgment. As evidence of prejudgment and bias, she mentioned incidents of August 30, 1991, and September 3, 1991. She said on the morning of August 30, 1991, she had a conversation with Mark Mistro of Triple R Welding on Burgess Road in Lapine. Mr. Mistro explained that he would be opening a business in the red building at the pole yard off William Foss Road in LaPine. He said he would be manufacturing utility trailers, they would have a large paint booth, the business would be named Sheltie Trailers, and he would be open for business on September 2, 1991. She and her neighbors were concerned that manufacturing would require welding and the use of volatile chemicals in a paint booth would create an extreme fire hazard since it would be next to mounds of sawdust, poles, and above -ground fuel storage tanks. Leon Shields' letter of June 24, 1991, stated that a careless welder caused the fire at the post and pole business. She contacted Patrick MacVicar on the August 30, 1991, and asked him about the situation and he said he would look into the matter and get back to her. Less than one hour later, Mr. Larry Rockenbrant, County Inspector, called her and stated that he would have an inspector on the site by that afternoon. At 4:06 p.m. on September 3, she called Mr. Rockenbrant and asked about the inspection. He said that no inspector was sent and that he was sorry but his hands were tied. When she asked why, he said he had contacted Glyn Scott, County Code Enforcement Officer, who in turn contacted Kevin Harrison. Mr. Harrison reportedly stated that this new business fell under the industrial umbrella. Mr. Rockenbrant said that Lauren Lezell, planning staff, might be able to help and tried to transfer her call. Mr. Rockenbrant got back on the line and said, "I guess we won't find any help there. Lauren Lezell was ordered to turn over anything to do with this case to Kevin Harrison." This was further substantiated by a conversation she had with Lauren Lezell in person on September 26, 1991, when Ms. PAGE 1 MINUTES: 10/1/91 KtY}� C}{®M 0108 0012 Lezell said she had been ordered to turn over anything that may have relevance to this application to Kevin Harrison. Ms. Crew asked whether Mr. Harrison knew that the property in question was still zoned RSC or that the conditional use enjoyed by the Shields fell until Title 18 Article 18.100.020, Item O, lumber manufacturing and wood processing, or that this new manufacturing would fall under Article 18.100.030, item C, manufacture, repair, rental, sales, servicing, storage of machinery, equipment, trailers for manufactured homes. She felt Mr. Harrison knew a new conditional use application would have to be submitted but ignored it because he knew the application for rezoning to industrial would be approved. She submitted her telephone bills to prove her calls to Mr. Rockenbrant and advertising for Sheltie Custom Trailers which Chairman Maudlin marked as A, B, and C. Chairman Maudlin asked if Ms. Crew was challenging the entire Board of Commissioners. Ms. Crew said that was correct. Ms. Crew continued that the original hearing date for this application was on October 2, 1990. The Shields requested a continuance. When opponents appeared at the Planning Department to ask if the continuance would be granted so that members of the LaPine community would not have to make the 70 -mile round trip to the hearing. They were told that a continuance could not be granted until the commencement of the hearing, so they had better show up. They all showed up at the hearing, however the Shields and their attorney did not show up, so there must have been some contact between the Shields and the Planning Department in which the Shields were guaranteed their postponement. She said that tonight's hearing was scheduled for August 28, 1991, and the opponents requested a continuance. She said they were told by Andrea Blum in the Commissioners Office that a continuance was not definite until the original hearing date, and that they should attend. Again, no representatives of the Shields attended, which proved prior knowledge by the Shields of the Commissioners' intention. She also wanted to challenge Commissioner Throop with bias. Mr. Hap Davie had been an integral member of their committee investigating this rezoning application and had discussed this application with Mr. Throop on several occasions, plus Mr. Davie and Mr. Throop had visited the site together. Since those instances, Mr. Throop has had a personal, intense dislike for Mr. Davie. Public proof of this was Mr. Throop's letters to the Citizen newspaper published on August 20 and September 10, 1991, indicating he thought Mr. Davie was "ridiculous and foolish." She said that Mr. Throop had threatened Mr. Davie in public in front of witness. She said Mr. Hap Davie said that "on April 2, 1991, in the lobby of his office building in front of witnesses, Commissioner Throop accused me unfairly of quoting him in the Citizen. Later, in the hall after a hearing in the Juvenile Justice Building, Commissioner Throop made this threat in front of witnesses: 'Just wait 'till you come before the Board again and see how far you get' or words to that effect. " Commissioner Throop had PAGE 2 MINUTES: 10/1/91 0108 0013 refused to answer Mr. Davie's letters or speak to him since that time. She felt this was overwhelming evidence and that in accordance with Section 22.24.1110 of the Deschutes County Development Procedures Ordinance, the opponents requested that the hearings body disqualify itself and withdraw. Commissioner Throop said he had never heard of Mr. Mistro or Sheltie Welding and had no knowledge of any of that series of events Ms. Crew outlined. Since he had no knowledge of those events, he had no reason to have developed a bias on that basis. He said he also had no knowledge of any of the allegations regarding certain parties being notified and other parties not being notified of canceled meetings, and therefore this would not bias him. Many years ago, maybe within the first six months he was a Commissioner, he met with Mr. Davie who gave him a tour of some of his concerns in the LaPine area including the Shields property. It was not until years later that an application was filed, and therefore did not bias him for this proceeding. He admitted that "Hap Davie is one of the biggest jerks I've ever met in my life, but the fact that he's going to be a witness here tonight and how I feel about him is totally immaterial to any comments he may make on the record this evening." He said he would consider Mr. DavieIs testimony like anyone else who testified at this hearing. He said Mr. Davie was one of his least favorite people who had attacked him personally and his wife, but he would not hold that against him or his testimony at this hearing. His personal feelings for Mr. Davie would have nothing to do with his decision-making in this hearing. He said it was an "absolute lie" that he had ever made any threats to Mr. Davie in the office. He said he did not respond to Mr. Davie at all and ignored him as if he didn't exist, however tonight he would listen to his testimony and consider it. Therefore there was no reason to disqualify himself on that basis either and would sit as a decision -maker at this hearing. Commissioner Schlangen said she had also never heard of Mr. Mistro or Sheltie Custom Trailers before this hearing. She had not spoken to Mr. Rockenbrant or Kevin Harrison concerning this matter except for the packet of information prepared for the Board for this hearing. She felt there was no reason why she shouldn't hear this and felt she could be completely impartial. Chairman Maudlin said that concerning the previous hearing which was held on August 28, 1991, that he had instructed Ms. Blum to call people in LaPine to let them know there was no need to come to the hearing because it was going to be postponed, and he was there when calls were made. Since only four people showed up at the hearing, most of the people must have gotten the word. The allegations made were about events that the Board had no knowledge of and, therefore, did not bias them. Chairman Maudlin opened the public hearing for testimony and asked for a staff report. PAGE 3 MINUTES: 10/1/91 0108 0014 Kevin Harrison pointed out the criteria which were relevant. He said this application was reviewable under Oregon Administrative Rules Chapter 660 Division 4 of the interpretation of the Goal 2 exception process, Deschutes County Year 2000 Comprehensive Plan (particularly the Rural Development section). He reminded the Board that this application was about one year old, and therefore all of the references in the staff report and the Hearings Officer's recommendation were to PL -15 which had been codified into Title 18 this last summer. The criteria were exactly the same but the numbering system was different, so the applicable sections of PL -15 which were applicable when the staff report was written were: Section 4.220, Rural Industrial Zone; Section 10.025, Rezoning Standards; and Section 4.250, Limited Use Combining Zone. The applicants were requesting an amendment to the Comprehensive Plan to change the designation from Commercial to Limited Rural Industrial and a zone change from RSC to RI on approximately 15 acres located in the LaPine Rural Service Center. The request involved an exception to Statewide Planning Goal 14, the urbanization goal, and it was reviewed by the Hearings Officer on June 18, 1991. A written recommendation was issued on July 19, 1991, approving the requested amendments with the imposition of the limited use combining zone on tax lots 1600 and 1700 to restrict the use of those properties to "very light industrial with significant buffering between those uses and the residential and commercial properties to the south." The issues before the Board were: Do the properties fall within one of the exceptions detailed under ORS 197.732. Do the applications conform with the criteria for a zone change. If the properties qualify for the amendments, should the limited use combining zone be imposed, and if so, what uses should be allowed. The Hearings Officer found in the affirmative for all three of these questions. Staff supported the Hearings Officer's findings. If the Board agreed with the Hearings Officer, they needed to specify the uses permitted in the limited use combining zone. He provided pictures that were submitted to the Hearings Officer which were examples of the subject property and the surrounding area. He introduced into the record a letter which was received September 26, 1991, from Mary Fuqua which was in opposition to the proposed amendments. He said he was at a loss as to the allegations about the custom welding trailer shop. He said he was not working on any other applications in the LaPine area and was not aware of any application in this area. He didn't recall any conversation with Larry Rockenbrant, Lauren Lezell or Glyn Scott regarding a change of use or a new use in this particular area. Chairman Maudlin said that there was an extensive written record on this issue which the Board had already read so he asked that testimony be limited to five minutes except for testimony from the attorney for the applicants and testimony from the primary opponents. Chairman Maudlin asked for testimony from the applicants first. PAGE 4 MINUTES: 10/1/91 0108 0015 Bob Lovlien, attorney for the applicants, pointed out that his clients had no knowledge of Sheltie Trailer or Mr. Mistro. His clients requested a continuance of the original October hearing. However, for the convenience of the opposition his clients also consented to a continuance until June, 1991, to facilitate people who were not in the area during the winter months. He received the phone call which Commissioner Maudlin referred to earlier, indicating the continuance of the August 28, 1991, hearing. His applicants supported the recommendation of the Hearings Officer and the staff. They supported the notion of a limited use combining zone for those two tax lots. He said the Hearings Officer visited the property and then held a full and complete hearing on the matter. Since the Board had already had the opportunity to review all of the exhibits and the previous testimony and recommendations, they didn't intend to rehash everything that had already been said. He pointed out that the Shields were one of his first clients when he came to the Bend, and he had worked for them since 1974. He said Sylvia Shields had been working on this zone change for close to ten years by trying to convince staff that there had been a mistake made in the original zoning. The testimony of Kay Nelson, who was a planning commissioner at the time the Comprehensive Plan was adopted, bore out what she was trying to prove. The first issue was whether the property fell within one of the exceptions to the statewide planning goals. He felt his letter of June 27, 1991, and Mr. Fitch's report addressed that. The second was, do the applications conform with the criteria for the zone change. Mr. Fitch found that the testimony of Kay Nelson was persuasive on the issue of whether a mistake had been made. The third issue was, if approved, should the limited use combining zone be appropriate on all or a portion of the property. He said the property was in the middle of the LaPine exceptions area so they were not requesting to add to or expand the exception area. They felt it was irrevocably committed to development and was at the time the Comprehensive Plan was adopted. The Hearings Officer found there was substantial evidence in the record to indicated that tax lots 1000, 1400 and 1500 were committed to industrial development at the time of the adoption of the Comprehensive Plan and were irrevocably committed to industrial development. It was impractical that the subject properties would be used for residential and/or commercial use. There was commercial activity on William Foss Road, on Highway 97 and this property was isolated from both Foss Road and Highway 97. The property has access through Shields Road or a BLM road which was a public access and was surrounded by industrial property. The Hearings Officer proposed a limited use combining zone on the two tax lots that abutted the commercially zoned property on William Foss Road for a buffer, and they had no problem with that. The Hearings Officer also recognized there were two things that were still in existence to protect the surrounding owners. The applicants would still have to get site plan approval for any industrial use on the property, and those uses would be subject to the limited use combining zone. Issues of buffering, fencing, set backs, landscaping, etc. were reviewed during site plan. He felt PAGE 5 MINUTES: 10/1/91 I's I - . Mr. Fitch was strong in his findings on the zone criteria also, stating there was substantial evidence to support the conclusion that a mistake was made on the zoning. Mr. Lovlien said he felt they had proven the elements of the zone change and exceptions which were required and that they concurred with the approach taken by the Hearings Officer in imposing the limited use combining zone in response to the concerns of the neighbors. Chairman Maudlin said he was aware there was animosity among the parties and asked that the testimony be limited to the facts and not personalities. Sylvia Shields, applicant, P.O. Box 66, LaPine, testified that she knew nothing about the welding/manufacturing business in their shop. The tenant who had leased that property was at this hearing and could testify regarding any business on this property. She felt strongly that since their property had been used as industrial property for many, many years, that the zone should be put back to industrial. If this application was approved, she knew there would be restrictions. She said they would then be able to proceed to do the things that needed to be done to keep the industrial property looking the way it should. At the present time, they couldn't put money into the property because they might be told they couldn't use the property for industrial purposes. They wanted to put up a sight -obscuring fence but they didn't know if they would be able to continue to use the land as industrial land. Chairman Maudlin asked if the property where the supposed welding business was located was leased. Sylvia Shields said yes and it had been a long-standing business since the early 701s. Marvin Russell, 51636 Huntington Rd., LaPine, testified in favor of the application. He said LaPine had "growing pains" and they needed industry to provide jobs for the young people. The retired population was not enough. He felt that a fence along the south side of the property could take care of a lot of the problems. Marilyn Russell, 51636 Huntington Road, LaPine, wanted to clarify some of the testimony before the Hearings Officer and in the newspaper. Hap Davie wrote a letter to the Citizen stating that Kay Nelson was not a member of the Planning Commission but was only on the Citizens Advisory Committee. Ms. Russell said that was not true since she was the one on the advisory committee. She said that Linda Crew said before the Hearings Officer that William Foss Road was not made for trucks but was a residential road. That was not true because in 1956 there was a mill out there on the spur of the railroad called the LaPine Stud Mill, and she was their bookkeeper. The County improved the road at that time for the trucks going into that mill. She felt that the people who lived in the area year round should have more to say than the people who come up just for vacations. PAGE 6 MINUTES: 10/1/91 0108 001'7 Mark Rhoden, 1620 SW 33rd, Redmond, testified that he had worked for the prior owner of his business who had someone in the shop who did welding. When he took over the business, none of them knew how to weld even though welding was essential to be able to fix the machinery. So they hired a man to do their welding whenever they broke down. Another man came with him who was being paid by the state to learn how to weld. They asked him if they could build trailers in his shop, and he didn't think there would be anything wrong with that. He said his shop was clean inside and there was nothing flammable. They hadn't done much so far and weren't energetic types. Nothing had been done to the trailer they were working on for the last month. Chairman Maudlin asked which tax lot held his business and what kind of business it was. Mr. Rhoden said tax lot 1000. His business was a post peeler mill and the welder was more like a contract employee that only worked when there were breakdowns. Chairman Maudlin asked if there was a sign on his business which advertised Sheltie Trailers. Mr. Rhoden said no, and that he hadn't seen the advertising in the papers. He also wanted to address the "mess" on County land. He said that when he first went to work there, all of the "mess" was already there. They had started cleaning it up the day they took over the business and planned to move everything over to John Humphreys. He asked Craig Woodward, the previous owner, if they could use some of his dump truck to remove the material. He agreed and the trucks should be available in a couple of weeks. Commissioner Throop asked whether after it was cleaned up, there would be anything left on County property. Mr. Rhoden said there would be nothing there but bare ground. Commissioner Throop asked for a time frame. Mr. Rhoden estimated it would be finished within one month. Commissioner Throop said that on the outside it could take two months and Mr. Rhoden agreed. Chairman Maudlin asked for testimony from the opponents. Linda Crew, 51473 Kindle, LaPine, offered into evidence a packet of opposition letters. She said they had looked through the record and had been unable to find them so she was submitting them again. She said the first issue she wanted to discuss was on page 10 of the Hearings Officer's under zone change criteria. She said the Deschutes County Comprehensive Plan had not identified any other industrial area than the limited rural industrial reserve. To prove that a mistake was not made in present zoning, she referred to a minor land partition document dated June 25, 1980 (MP -80-47). The partitioner was Herbert Shields and the zoning was clearly shown as RSC. She also referred to a proponent's letter received by the Deschutes County Planning Department on September 14, 1990, from Herbert, Sylvia, Leon, Kitty, and Mike Shields stating in the second paragraph, that in 1981 without notifying them, the County changed the zone to Commercial. She next referred to a letter to the Deschutes County Planning Department dated June 24, 1991, from PAGE 7 MINUTES: 10/1/91 Leon Shields which said that the zoning was changed without any notice to him. Ms. Crew asserted that the zoning was made apparent to the Shields eleven years ago on the minor partition map. She next referred to an affidavit of a conversation she had with George Read, the Planning Director, on July 22, 1991, in which Mr. Read acknowledges hearing the original tapes of the Deschutes County Comprehensive Plan Year 2000 zoning assignment. She said Mr. Read remembered that Sylvia Shields asked that her property be zoned commercial. She referred to staff report on file PA -91-5 and ZC- 91-3 of August 20, 1991, page 9 section 5. The applicant was Robin Ray. It stated, "This position is reinforced by the fact that the zoning has been in place since 1979 without action of the owner to change it and if the preceding is true, then no error can be claimed in the adoption of current zoning." She said the Shields were aware of the RSC zoning, and they requested commercial zoning. The Hearings Officer said that the plan acknowledged there was an existing industrial area north of William Foss Road which had been zoned industrial, and she felt it was "presumptuous" of the Hearings Officer to claim that the Shields' property was what the Planning Commission was referring to in 1979. She said there were no available commercial lots on William Foss Road. The Hearings Officer indicated there were multiple accesses to the property from William Foss Road. She said the only access was from a narrow BLM easement across from Hinkle Way. Title 18 of the Deschutes County Zoning Ordinance 18.100.040 said that no use would be permitted that generated more than 20 auto or truck trips during the busiest hour of the day to and from the premises unless they were directly by an arterial or collector or other improved street or road designated to serve the industrial use which does not pass through or adjacent to residential lots in a platted subdivision or a residential zone. Any use on a lot adjacent to or across the street from a residential dwelling, a lot in a platted subdivision, or a residential zone shall not emit odor, dust, fumes, glare, flashing lights, noise, or similar disturbances perceptible without instruments more than 200 feet in the direction of the affected residential use or lot. She said it continued that no use could require the backing of traffic onto a public or private street or road right of way. She referred to pictures in the file of trucks entering and exiting the BLM easement to Shields' property as examples of the significant amount of dust, fumes and noise. Marvene Foster, Box 125, Christmas Valley, Oregon, testified that she was a friend of Chuck and Linda Crew. She said she was a frequent visitor to their residence on the corner of William Foss and Hinkle Way. On numerous occasions she had witnessed semi trucks entering or leaving the BLM easement. Since the road was narrow, some of the trucks could not make the corner and had to back up. There was a lot of traffic, dust, noise and fumes which made the area unpleasant. Linda Crew continued with here testimony. She felt it was apparent according to Title 18 that the BLM easement was not a legal access PAGE 8 MINUTES: 10/1/91 0108 0019 for industrial use. The 20-30 people the proponents say they have employed on the property constituted many more than the allowed 60 vehicle trip in addition to the industrial truck traffic. She played a video of the site which was recorded on a nonworking day. The property was unsightly however there was no irrevocable use that could be claimed since with the exception of one large red building, everything else on the property could be cleaned up by a bulldozer. There was no substantial investment in the property, and it could be used for other purposes. She said there was another access easement besides the BLM easement, however she submitted a warranty deed from Daisy Flessner granting an easement for private residential use only. Darrel 0. Lunda, PO Box 755, LaPine, submitted the following exhibits: Opposition CS1, 5 pages and dated June 18, 1991; Opposition CS2, 9 pages, dated September 12, 1991; Opposition CS3, 10 pages dated June 23, 1980; and Opposition CS4, 7 pages dated June 25, 1991. He referred to his June 19, 1991, mailgram to Ed Fitch stating he didn't request a continuance because the applicant didn't address OAR 660-04-020. He requested there be a continuance if the applicant submitted arguments relevant to this statute. In his July 1, 1991, mailgram to Ed Fitch, he indicated that Bob Lovl ien' s letter of June 27, 19 91, was too late for an adequate response, and that it contained new arguments and evidence. He requested a continuation of the hearing. In his September 26, 1991, mailgram to Dick Maudlin, he made two requests and referred to junk trucks and added trash on county land and said that Chairman Maudlin was responsible for protecting public property. He asked if Chairman Maudlin had received the mailgram and if he had granted his requests. Chairman Maudlin said he had not considered these issues or spoken to anyone regarding these matters because it was part of the issues before the Board at this hearing. Mr. Lunda then read Exhibits CS1, CS2, CS3 and CS4 into the record for this application. Hap Davie, Box 401, LaPine, testified that three or four years ago he was in Europe and had only been home for 2-1/2 years. On Friday July 20, 1990, he met with Commissioner Throop in LaPine and drove around and through the Shields property noting numerous violations outlined in Exhibit GG in the record on this application. Linda Crew testified again stating that this property was "land locked" and the County should build a road from Reed Road to access the Shields property. A lot of the problems with the neighbors were because of the dust, noise, pollution of the trucks in the residential areas. She still did not feel, however, that the parcels should be zoned industrial because it was too close to the residential areas. They would like to keep LaPine neat and clean since it was the "gateway" to the Newberry National Monument, and this property was visible from Highway 97. She said her property was zoned residential and was directly across the street from the BLM easement. Commissioner Throop asked where a road across County PAGE 9 MINUTES: 10/1/91 0108 0020 property would be most appropriate. There was general discussion among the parties on possible routes. She said she did not have an objection to TL 1000 being light industrial, however it was not appropriate in the lots in close proximity to residential areas. Chairman Maudlin asked for rebuttal testimony. Bob Lovlien said this hearing had given the opponents a second opportunity to address each of the issues and they had presented additional new evidence, therefore any issues on procedure were unfounded. The purpose of the application was to enable them to get the property zoned so that it could be utilized. He felt that because there were no commercial uses on William Foss Road, it showed there was no demand or need for any commercial property. Mrs. Shields had been attempting to get this property zoned industrial for several years so they could proceed. He said there was additional access to the property other than the BLM access road. There was a 30 -foot cinder road easement on the west which was known as Shields Road and came off Reed Road which had access to Highway 97. Daisy Flessner, who was Sylvia Shields grandmother, granted additional right-of-way to the State Highway Division. The access permits off Highway 97 were restricted to residential uses but the access from Reed Road did not have such a restriction. He felt the road and the issues brought up by the opponents were site plan issues. When the Shields came to the County with a particular use, all of these issues would have to be resolved. He said all of the material Mr. Lunda read was already in the file and had been reviewed by the Hearings Officer. He said Sylvia Shields was not an "outlaw." She was president of the LaPine Chamber of Commerce and had been active in the community. Commissioner Throop asked him about the BLM access. Bob Lovlien said there was a 1980 letter from BLM which documented the public use status of the road providing access to tax lot 1000. Commissioner Throop said there had been prior conditions imposed on this site and asked if he had any judgement on compliance with those conditions. Bob Lovlien said that many of those conditions were not imposed on the Shields but on the users of the property. They recollected that the fence was never a condition of approval but was a voluntary effort on their part. He said there hadn't been very many uses on the property and most predated zoning, so there had been only one site plan that had ever been filed on uses on that property. Commissioner Throop asked if he felt there had never been any violations of conditions by the Shields. Bob Lovlien said he would not go that far but would say that there had not been a "willful" violation of any conditions, and there were no major conditions that had not been followed. He recollected there was a condition about paving a parking lot not an access road for one of the prior lessees which did not carry over to a current lessee when there was a change of use. He felt that a fence could be a condition of approval for any uses that went on the property. There were currently no proposals for site plans, however they had talked to people who were interested in the property. He said Sylvia Shields PAGE 10 MINUTES: 10/1/91 0108 0021 indicated that a fence as a condition of the zone change would be fine. The equipment that was being stored on the site would have to be removed in order for the Shields to advertise the property for industrial uses. They would be willing to do some clean up as a condition of the zone change. Commissioner Throop asked him if all of the uses on the site were legal uses. Bob Lovlien said that "to the best of my knowledge, yes they are." He said this issue had been litigated in circuit court, and the judge held in favor of the Shields. Commissioner Throop asked if the applicant would be interested in looking at siting a new access off Reed Road if the County were willing to grant an easement. Bob Lovlien said "no question" they would be willing to examine alternative accesses. Donna Reed, 50750 Masten Road, Lapine testified that the logs Mr. Davie referred to as being on the Shields property were actually on her property. She said that Mr. Davie had testified that her husband "Bob" had used influence to get a letter from Midstate, however her husband knew nothing about it, and the letter was from Central Electric. She had lived in this area since 1956 and so had the Shields. She had no problem with the dust. She did take exception, however, to putting a road across to Reed Road which would bring the traffic her way. Since Reed Road was not a paved road, she felt that would be inappropriate unless the County was going to pave it. Marvin Russell testified said the Shields property did have a saw mill in 1939 and part of 1941. He felt Reed Road should be paved and there should be a crossing on the railroad tracks that would take the truck traffic out of the center of LaPine and put it into the County industrial park. Kitty Shields, 51540 Shields Drive (PO Box 931) LaPine, testified that she lived on the property adjacent to the property in question. She also felt that most all the problems should be alleviated with the proper access. She had lived in different parts of LaPine where she had the same dust problems. If the trucks could come into the property from a different location, the Lundas and Crews wouldn't even hear the trucks. When her husband drove into their yard in a tractor/trailer rig, she would not hear him until he walked in the door. What she did hear was Highway 97 traffic and trains. She didn't feel there were any health hazards from living in this area. She couldn't hear the pole peeler unless she walked over into the vicinity of the peeler nor did she see any dust. Responding to a question regarding the site of an alternative road, she deferred to her mother. There was discussion about possible accesses to the property. Leon Shields said that most of the truck traffic came across the railroad on Finley Butte Road, then through Hinkle Road. Most used the William Foss Road because it didn't make any sense to do otherwise. He suggested a road along the railroad tracks to William Foss Road. A number of possible routes was discussed. PAGE 11 MINUTES: 10/1/91 Commissioner Throop pointed out that the County would not be in a position to pave Reed Road in the near future. Linda Crew reiterated to the Commission that William Foss Road could not be used for an industrial road according to Title 18 the Deschutes County Zoning Ordinance (Article 18.100.040 under use limitations) which stated that industrial streets could not pass through streets adjacent to residential lots or a residential zone. The BLM easement required the backing of traffic onto a public or private street or right of way which was also not allowed on a residential street. She referred to a Community Development Department letter of May 5, 1988, from Craig Smith to Velda Lunda in which it stated that "Mr. Shields was advised that the upkeep and repair of the fence is indeed his responsibility." "Mr. Shields had been advised to repair the others in a timely and workman like manner." Also under SP 87-1, the Shields were ordered to put in a paved parking lot which was never done. She based this upon a State Corporation Division statement that there were no corporations listed under the name of Great American Wood and Charcoal. When the Planning Department was contacted, they were told that Great American Wood and Charcoal was the applicant for SP 87-1. Since this company did not exist, they questioned the Planning Department and were told "we don't really issue a permit to a company, we issue it to a property owner." Therefore, she understood the Shields were responsible for paving the parking area. Chairman Maudlin asked who had given her that information, and she said she had talked with Kevin Harrison about it and also Mr. Ed Fitch at the hearing. Chairman Maudlin asked if Ms. Crew had a copy of a letter to the Shields indicating the fence was their responsibility. Ms. Crew said the May 5, 1988, letter from Craig Smith indicated that someone from the Planning Department had spoken with Mr. Shields. It said, "Mr. Shields has been advised to repair the others in a timely and workman like manner." "Mr. Shields was advised that the upkeep and repair of the fence is indeed his responsibility." She brought up again the issue of oder, dust, fumes, and noise perceptible without instruments 500 feet from the property line. She said that her property, Lundas, Johnson, Vedidoes, and Sealys were all within 500 feet from the Shields' property line. She felt that a six-foot fence would not be sight obscuring in this situation and would not be acceptable to the neighborhood. She suggested a minimum of a ten -foot fence. Commissioner Throop asked Bob Lovlien to respond to the allegation that the fence was the responsibility of the Shields rather than the tenant. Bob Lovlien said to the best of his knowledge, there was never a requirement imposed by the County that the fence be built. It was built voluntarily by the Shields. After it was built, Mr. Lovlien felt it was their obligation to maintain it. He said there had been a lease with the Great American Charcoal Company, and he thought it was a California Corporation which would PAGE 12 MINUTES: 10/1/91 explain why the Oregon State Corporations Division did not have it listed. Commissioner Throop asked Mr. Lovlien to get a copy of the lease to the Board and assert that the paving responsibility was Great American's and not the underlying property owner. Commissioner Throop then asked if there was anyone in attendance who could prove that the fence was a condition of some approval for the Shields. Leon Shields said that the fence was on his property and there had never been a site plan on it. He put the fence up on his own and the County never requested it. The fence eventually started rotting and falling over, so he finally gave up on it and started tearing it down. He never finished tearing it down because he ran out of time. They would like to put up a fence with metal posts that wouldn't rot off. Commissioner Throop asked what his reaction would be to a fence that would exceed six feet in height which would require it to be engineered. Leon Shields said he didn't "think anything would make these people happy, but we can do that and try anyway." Mr. Lunda said Leon Shields had admitted that his property was tax lot 1700 and that it had no industrial history. Chairman Maudlin said that wasn't the case and that Mr. Shields had only said there had not been a file made on it. Mr. Lunda reiterated that Tax Lots 1600 and 1700 had no industrial history. He suggested that the Commission investigate who the recipient of a site plan permit was ---the applicant or the land owner. There being no further testimony, Chairman Maudlin closed the public hearing and announced that the Board would make their decision on this issue at 1:30 p.m. on Wednesday, October 9, in the Board's Conference Room in the Deschutes County Administration Building. He explained that no further written or oral would be accepted,but that everyone was welcome to attend the meeting on the 9th. DESCHUTES COUNTY BOARD OF COMMISSIONERS Nancy in; BOCC:alb E -i PAGE 13 MINUTES: 10/1/91