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1991-35774-Minutes for Meeting October 30,1991 Recorded 11/21/19910108 0095 �l J 35774 MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS�'j; October 30, 1991�'�' u Chairman Maudlin called the meeting to order at 10 a. 4'", rw members in attendance were Dick Maudlin, Tom Throop and Narie}`cS Schlangen. Also present were: Rick Isham, County Counsel; Paul Blikstad, County Planner; Tom Blust, County Engineer; George Read, Planning Director; Karen Green, Community Development Director; and Bruce White, Assistant Legal Counsel. 1. CONSENT AGENDA Consent agenda items before the Board were: #1, Chair signature of contract with Brothers School District for School Nursing Services; #2, appointment of Rita Shearer to replace Judy Scales on Deschutes County Local Alcohol & Drug Planning Committee; and #3, signature of tax refund Order 91-133. THROOP: I'll move approval of the three consent agenda items. SCHLANGEN: I'll second that. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: Abstain 2. ORDER 91-132 VACATING PORTIONS OF VANDEVERT ROAD, POWELL BUTTES-PAULINA CREEK ROAD AND C.B. ALLEN ROAD Before the Board was signature of Order 91-132 vacating portions of Vandevert Road, Powell Buttes - Paulina Creek Road and C. B. Allen Road. The signers of the petition constituted 100% of the owners of property abutting the proposed road vacation. THROOP: I'll move signature of the Order. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 3. ORDINANCE 91-132 AMENDING OCCUPANCY REGULATIONS Before the Board was signature of Ordinance 91-044 amending Chapter 5.12, Occupancy Regulations, of the Deschutes County Code. Rick Isham said this ordinance would adopt a form of notice to be posted in overnight rentals. There was no change PAGE 1 MINUTES: 10/30/91 �Ey CN ED in the intent or effect of the ordinance which outlined that the maximum overnight occupancy for a dwelling unit would be two persons per bedroom or sleeping loft plus two additional persons; and that violation of this overnight occupancy maximum would be a class B infraction and subject to a maximum of a $100 fine. SCHLANGEN: I move first and second reading by title only. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 91-132. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 4. WEEKLY WARRANT VOUCHERS Before the Board were weekly warrant vouchers in the amount of $149,809.94. SCHLANGEN: Move approval and signature upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 5. SKYWEST TOWNHOMES STAGE A CONDOMINIUM PLAT Before the Board was signature of a city of Bend Condominium Plat for Skywest Townhomes, Stage A, located east of Knoll Avenue and 17th Street for Glennis Wolf, Glenco Investments. THROOP: I'll move signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 2 MINUTES: 10/30/91 0108 009'7 6. REGIONAL STRATEGIES COMMITTEE PUBLIC HEARINGS Before the Board was authorization for the 1991-92 Deschutes County Regional Strategies Committee to hold public hearings to collect information relative to industry focus and potential projects for the State Economic Development Department Regional Strategies Program. MAUDLIN: I would entertain a motion empowering the Regional Strategies Committee to hold public hearings. SCHLANGEN: I will make that motion. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 7. APPOINTMENTS TO THE RIVER BEND ESTATES SPECIAL ROAD DISTRICT BOARD OF DIRECTORS Before the Board was reappointment of Ronald Delzer and Appointment of Jed Wegner to the River Bend Estates Special Road District Board of Directors. SCHLANGEN: Move appointment, reappointment. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 8. MJP-90-8 ON BEAR CREEK ROAD Before the Board was signature of MJP-90-8 dividing a 195.46 - acre parcel on Bear Creek Road east of Ward Road into three lots of 72.69, 40.73 and 82.04 acres in an EFU-20 zone. Paul Blikstad said it was an odd -shaped parcel because it followed the COI canal. Commissioner Throop said that any subsequent applications for partition would trigger the subdivision ordinance. There were only 39 acres of water rights on the entire 195.46 -acre parcel. THROOP: I'll go ahead and move approval. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 3 MINUTES: 10/30/91 9. DEVELOPMENT AGREEMENT FOR HENRY & VICTORIA ROGERS Before the Board was signature of a Development Agreement for a property management building and site plan in Sunriver Business Park for Henry and Victoria Rogers. THROOP: I'll move signature of the Development Agreement. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 10. STATE SENIOR SERVICES DIVISION Commission Throop thanked Veronica Zecchini, Director of Central Oregon Council on Aging (COCOA) and Mary Tinker, meal - site coordinator for COCOA, for their efforts in trying to get Dick Ladd, head of the State Senior Services Division, to come Bend and talk with the Board, even though they had been unable to do so. Mr. Ladd had sent out rumors that there were major changes being contemplated on how senior services would be delivered in Eastern Oregon. Veronica Zecchini said that COCOA was an Area Agency on Aging of which there were 600 in the country and 18 in the State of Oregon. The funding and guidelines came from the Older Americans Act which was started in 1965 and had been amended numerous times. From this funding, COCOA sponsored the meal sites, meals on wheels, and dial -a -ride programs. The other big chunk of funding for Senior Services came from the Medicaid program which was administered by the State through local area agencies on aging. Most of the districts in the State of Oregon had all Senior Services housed under one agency and were Type B. However since COCOA was a private, nonprofit entity, they could not sponsor Medicaid programs. So COCOA was one of the few Type A agencies left in the state. The state preferred that the agency structure be Type B since there would one single entry for all services. Currently, Senior Services, the medicaid programs, the foster homes, and the disabled programs were sponsored by a local unit of state government which did not answer to a citizen advisory group. She said that Dick Ladd said he had been directed by the Governor as part of the streamlining of government to encourage the consolidation of area agencies on aging. There were seven area agencies on this side of the mountain, and Mr. Ladd wanted there to be two or three. She felt most of Eastern Oregon disagreed with that consolidation. The law currently allowed the local jurisdiction to determine whether the agency was a Type A or a Type B. She said the Oregon Senior Services System was a model for the Country and had a PAGE 4 MINUTES: 10/30/91 Medicaid waiver so that instead of people just going into nursing homes, Oregon was allowed to use Medicaid money to keep people in the community, i.e. meals on wheels, transportation, foster care, residential care and assisted living. If the Senior Services system was dismantled, Central Oregon would be left with a Type A agency, and then people would have to go into a nursing home if they couldn't live on their own. Chairman Maudlin said that this was basically the same message that the Board had been given last year and Veronica Zecchini agreed. The Board thanked Ms. Zecchini for bringing this update to them and expressed approval of the direction she was taking to keep the Deschutes, Crook and Jefferson District as a Type B agency. 11. CONTRACTS FOR DESCHUTES COUNTY CASA, LAPINE GREAT START PRESCHOOL, BEND TEEN PARENT PROGRAM, REDMOND TEEN PARENT PROGRAM AND ARK CHILDREN'S CENTER Before the Board was approval of signature of the contracts with the Deschutes County CASA, LaPine Great Start Preschool, Bend Teen Parent Program, Redmond Teen Parent Program and Ark Children's Center. SCHLANGEN: I move approval of contracts for Deschutes County CASA, LaPine Great Start Preschool, Bend Teen Parent Program, Redmond Teen Parent Program and Ark Children's Center. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 12. RECOMMENDATION TO THE TRANSIT COMMITTEE Commissioner Throop said that Deschutes County was one of the larger communities in Oregon and the Northwest which did not have public transit services. There was a community group formed which was interested in constructing a proposal to take to a ballot. There were some business groups, i.e. CORA, some chambers of commerce, transportation dependent population groups COCAAN, senior organizations, COCOA, and the handicapped who were looking into the formation of a transportation district. Their two primary issues were (1) what kind of district should be formed and (2) should the district be formed: by petition or through the Board of County Commissioners putting the measure on the ballot. In a recent department head meeting discussion, the Board had decided to formalize its position so it could be communicated to the PAGE 5 MINUTES: 10/30/91 0108 01.00 formation group which had indicated a preference to proceed with a special district as opposed to a county service district. He proposed that the Board of Commissioners concur that it would be better to have an independent, autonomous transportation body through the formation of a special district. He said the Board felt it was extremely important that the community demonstrate a broad and deep interest in forming a transit district before one of the ballot opportunities was used on this issue. The Board wanted a petition of Deschutes County citizens numbering more than 3,000 by March 1, 1992, before asking the voters for their support. THROOP: I would move a position for the Board of Commissioners that will support putting on the ballot a special district for transit services if sufficient support is demonstrated through a petition submitted to us before March 1 that contains an excess of 3,000 signatures. SCHLANGEN: I second. Rick Isham said they would soon be looking over the news laws which were adopted with respect to district formations. It might be that the March 1 date would be too late for the issue to make it on the November ballot. He said they would come back to the Board and explain if that were the case. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 13. PUBLIC HEARING: HAYES AND DUNTLEY APPEAL Before the Board was a public hearing on the Hayes and Duntley appeal of the Hearings Officer's denial of a conditional use permit (CU -91-81) application for converting an existing dwelling into a ranch hand residence and to allow a new primary dwelling to be constructed on the subject property in conjunction with a farm use. Chairman Maudlin asked if any of the Commissioners had had any ex parte contacts. The Commissioners all indicated they had had none. He asked if anyone wished to challenge any member of the Board from hearing this matter. There were no challenges. Paul Blikstad gave the staff report. He submitted a faxed copy of a letter in opposition to the application from Alfred H. Stoloff into the record. He said the application was accepted by the Planning Director on June 2, 1991, and was originally scheduled for an administrative decision. However, PAGE 6 MINUTES: 10/30/91 0108 0101 due to staff concerns regarding the location of the proposed primary dwelling, this application was referred to the hearings officer on August 20, 1991. The hearing officer's decision to deny the application was issued September 10, 1991. The hearings officer denied the partition based what he felt was disruption of productive farm land by placing the primary dwelling in the proposed location. The hearings officer also looked at the recent history of this property which was partitioned through a variance to the minimum lot size dividing off a 6.2 acre parcel from what had been a 70 - acre parcel. Rick Isham asked if this application were covered by the 120 - day rule and Mr. Blikstad said it was but that the process was already beyond the 120 days. Mr. Isham asked if having the final decision by the Board beyond the 120 -day limit had been agreed to by the applicant, and Mr. Blikstad said no. Chairman Maudlin asked when the previous partitioning of the 6.2 acres was done. Mr. Blikstad it was in 1988. Chairman Maudlin said there was a canal that separated those 6.2 acres from the remainder of the parcel, and the County had regularly allowed these partitions because there wasn't any way to go back and forth across the canal. Greg Hendrix, attorney representing the applicant, went over a map of the area and pointed out where the existing dwelling was located and the topography of the property. Rick Isham said he met with Paul Blikstad, George Read, and Bruce White that morning to discuss the criteria to be applied to the application. He said this was a ranch hand residence which would be under Deschutes County Code 18.28.030 (0) which provided for the conversion of a preexisting dwelling as a ranch hand residence upon the finding that the dwelling would be occupied by an employee of the owner or an immediate family member engaged in the farm occupation. He said that the 91- 020 amendments were in effect prior to the date of the application and therefore did apply. A Court of Appeals case called Newcomer v. Clackamas County required that in looking at the new primary residence that OAR 660.050.304 applied to the applications which meant that the new primary residence had to be involved in the day-to-day activities principally directed to the farm use of the land. If the new residence was to be principally for residential uses, it would not be considered in conjunction with a farm use and would not be allowed. In order to establish the new residence, the Board needed to find that the property was currently employed in farm use (that the actual farm use must be employed on the parcel before a dwelling could be located upon it). He felt there should have been two applications submitted: one for the new residence and one for old residence. However it was PAGE 7 MINUTES: 10/30/91 0108 0102 accepted under a single application. The conditional use criteria that applied to this application was in 18.28.040 which indicated that the ranch hand dwelling and the principal dwelling had to be compatible with the farm uses, couldn't seriously interfere with accepted farming practices on the property and would not materially alter the stability of the overall land use pattern in the area, and was situated on generally unsuitable land for the production of farm crops and livestock. The other general criteria to use in evaluating this application was Section 18.28.040(A)(a) which referenced the purposes section which he read. It outlined that the purpose of EFU zone was to preserve and maintain agricultural lands for farm use. Chairman Maudlin noted that the fax letter submitted from Alfred Stoloff was a copy of the letter that was already in the file. Greg Hendrix said he was a local attorney representing the applicants, the Hayes who were the landowners and Carol Duntley who was the proposed purchaser of the property. He said they were not waiving the requirement that the final decision had to be made within 120 -days of the application, and since a final decision had not been made within the 120 - day limit, the application should be approved. He asked if the transcript and all prior memorandum would be considered a part of the record. Rick Isham said that was correct. Mr. Hendrix felt that this was important because the issue of whether Ms. Duntley's proposed residence would be used by someone who was actively involved in the day-to-day operation of the farm was addressed in her previous testimony since she was unable to attend this hearing. He said they had a two part argument: (1) this dwelling made good public policy sense for keeping this farm parcel in production; and ( 2 ) this case was one of "last impression." It was his understanding that this application was submitted when the ordinance still provided that a primary dwelling would be a permitted use and not subject to the conditional use criteria. He also understood that the ordinance had been amended recently which made primary dwelling conditions uses, but it was their position that the amendment did not apply to this case. Commissioner Throop asked for a clarification. Rick Isham said this dwelling would be considered against the conditional use criteria. He said the ordinance was amended in May of 1991 and the application was accepted on June 2, 1991. Mr. Hendrix asked if there was an emergency clause on the ordinance and Mr. Isham said there was. Mr. Hendrix said his discussions with staff had led him to believe that this ordinance had been amended only a couple of weeks ago, however he was not making an estoppel argument. George Read said the ordinance was codified in May but the standards which were PAGE 8 MINUTES: 10/30/91 0108 0103 being discussed were not changed. The difference was the reference in the original staff report was still done from a computer shell which referenced PL -15, however it had been adopted and codified, and the standards were the same. He thought Mr. Hendrix was referring to more recent changes when the EFU zone was amended to clarify this issue and was adopted after this application was submitted. In Mr. Hendrix' written testimony, he said the new standards didn't apply to this application, and Mr. Read said he would concur with that. However, the Title 18 reference was in effect, but the standards were the same as the PL -15 so the standards were the same. He said the Dowden v. Douglas County court case established that determining whether or not a dwelling in conjunction with a farm use could be allowed or not was a discretionary decision. After that, in 1988, the County treated all farm dwellings as a conditional use permit because they were required to do notice and make findings that the dwelling was customarily provided in conjunction with a farm use. While the ordinance had not been amended, the Dowden case was applied in Deschutes County. It was his belief that it was implicit in Ordinance 83-28, which established the provision for a preexisting dwelling for a ranch hand, that the County would be reviewing two dwellings, and that review was a conditional use permit. Mr. Hendrix said this was a case of last impression and this kind of confusion would not come before the Board again since the ordinance had been modified since their application to make it clear that primary dwellings were conditional uses. Rick Isham asked Mr. Hendrix if it was his opinion that the only thing the Board was reviewing was the ranch hand residence, and that they were entitled as a matter of law to a new primary residence on the property. Mr. Hendrix said the County was entitled to do the necessary case law review that had happened since the acknowledged comprehensive plan, and the County had the right to amend the ordinance. He felt the Board was really looking at two applications: one for an outright permitted dwelling as long as it was in conjunction with the farm use; and also the designation of a ranch hand residence. He felt the question was which criteria to apply. He argued that the criteria which could be applied to the primary dwelling had to be those in the ordinance which existed on the date the application was accepted and any other case law issues, but that the County could not apply the conditional use criteria because the ordinance was clear and not subject to interpretation. He disagreed with the interpretation the County Counsel was giving the Board in this matter. However since this was a case of "last impression" and would not come before the Board again, it had no precedent value. PAGE 9 MINUTES: 10/30/91 Mr. Hendrix said there had been a partition in 1988 by the Hayes. They had owned the property for about 30 years. In 1988 he worked with Craig Smith, then Planning Director, to split off the 6.2 acre parcel. Mr. Hayes was no longer physically able to farm the parcel and no one in his family wanted to do so. There were two preexisting dwellings on the entire parcel. Mr. Hendrix originally suggested that the parcel be split into three 20+ acres. Mr. Hayes rejected that because he felt that wouldn't do the farm parcel any good, and that it ought to be kept in one big field. This showed that Mr. Hayes feelings about the preservation of farm land were similar to the County's. So he worked with Craig Smith and found a clause in the Comprehensive Plan which discussed splitting off nonfarm parcels from farm parcels to effectuate a partition. So they applied for a variance to the minimum lot size in the EFU-20 zone. They could do so under the argument that it was not productive farm ground since the 6.2 acres was all rock. They kept all of the irrigation rights with the larger parcel. The way the property line was drawn was part of the agreement to keep the existing 600 sq. ft. ranch hand residence with the main parcel. As part of the partition, they agreed not to submit for any further partitions. Since that time, Mr. Hayes had been trying to sell the 60+ acre parcel and had problems because it was difficult to make a living on a farm parcel in this area. They had to find someone who wanted to farm the 60 acres as a hobby farm, and Ms. Duntley was interested in doing that. She wanted to place a dwelling in an area which was an obvious rocky outcropping which was not farmable. It was not a green, irrigated area and cattle didn't go into this area. Commissioner Throop said this was a 62 acre parcel with 59 acres of land with water appurtenant to it. With the existing dwelling and the farm buildings, the canal and the road, he felt the remainder of the land would have water. Mr. Hendrix said the proposed dwelling site did have water rights, but as a practical matter, there was little or no grass growing in this rocky area. Commissioner Throop asked about the proposed access road. Mr. Hendrix said no matter how an access road was placed on the property, there would be some ground taken out of production, but he felt that could be minimized. He suggested the these water rights be transferred to the corner which the irrigation district said did not have water rights but had better soil and had been watered and farmed for a long time. The 600 sq. ft. dwelling they wanted to be designated as a ranch hand residence was built as a ranch hand residence and wouldn't suite the needs for a primary dwelling. Therefore, anyone who might be interested in purchasing the property and farming it wouldn't be interested in living in the existing dwelling. Commissioner Throop asked why the existing dwelling could not be remodeled. Mr. Hendrix said the existing house and location did not lend itself to being PAGE 10 MINUTES: 10/30/91 0108 0:05 remodeled. There was also a practical consideration that the proposed site had a "dynamite view of the mountains" while the current dwelling didn't have a view of anything except the irrigation ditch and pasture. This was important to anyone wanting to purchase the property, even farmers. He felt it would be difficult to find someone who would be interested in purchasing the parcel, living at the existing dwelling, and working the 60 acres. Ms. Duntley was willing to work the parcel but she needed help. She wanted to create an arabian horse breeding operation which would require that she be out of the area from time to time promoting and marketing her stables, and therefore would need someone on the site to assist in the horse operation. She would be there "day by day" and this would be her primary residence. She would be working the farm operation but would also need another source of income. The parcel was currently in farm production and she wanted to intensify that farm use to augment the hay production with the horse breeding operation. He did not feel that they were required to show "need." Under the state statute, they were just required to show that the occupant of the primary dwelling would be involved in the day-to-day farming activities which she would. Commissioner Throop said he understood that the farm use had to be established first before the dwelling was approved and asked if this proceeding wasn't backwards. Mr. Hendrix said there was an established farm use, and they just wanted to modify the farm use at some point in the future. The Christianson court case stated that if the County established a use as a conditional use the "need" was presumed unless the ordinance stated that there had to be a need established under the criteria. Commissioner Schlangen asked about whether additional barns and farm buildings would further take irrigated lands out of production. Mr. Hendrix said the rocky outcropping was big enough be put a barn and a dwelling, however barns were considered as farm uses. He said that the Crumpackers were located approximately 75-80 higher in elevation than the proposed dwelling. He felt their concern was a house in their view. He said they would be willing to work with the Crumpackers on this issue since they had no intention of building a structure which would block their view. Chairman Maudlin said the Crumpackers and Stoloffs co -owned tax lot 300 and asked if this parcel was farmed. Kitty Warner, area realtor, said it was dry. Mr. Hendrix said it was uncontradicted that the dwelling would be solely for an employee of Ms. Duntley. He said their moral argument was that approval of this application would make this parcel a better farm parcel. He said it was established in the staff report and in the findings of the hearings officer PAGE 11 MINUTES: 10/30/91 0108 0106 that the existing dwelling met the conditional use criteria. The only question was which criteria applied to the proposed primary dwelling. He felt they met the criteria of the ordinance in place at the time the application was submitted. Thomas B. Hayes, applicant, said his voting residence was at 65595 Tweed Road which was the address of this property, although he would be changing his voting residence to Corvallis. When he and his family were no longer interested in farming this parcel, they decided to put it into pasture using a farmer from Madras named John Poppe. When Mr. Poppe attempted to till the southeast corner of the property, he suggested they stop farming this area because it was too rocky and it was tearing up his equipment. He said they did raise some grass in this area, but it was not the prime kind of land like the remainder of the 60 acre parcel. Mike Johnston, 65575 Tweed Road, said he lived directly east of this property, and had eleven acres which he farmed. He was concerned about Mr. Hendrix' statement about working with surrounding neighbors, since he had tried to work with Mr. Hendrix for the past two months and had gotten "nowhere." He had asked for some assurances regarding this property --one had to do with his excellent view. He said they had several feet of soil in this area, and he had almost no .rocks below the irrigation ditch. He felt using this land to put in a road, barns, a house and a lawn would be unfortunate. He was concerned about whether they would build a house, barn, or power lines or put in trees that would obstruct his view. He bought his place three years ago and was under the impression that the Hayes received two variances to make their partition: one to divide off the less than 20 acre parcel and another for not having county road access. He hoped that if the Board approved this application, it would set a precedent for others in Deschutes County to be able to do similar things with their property. He said there was an easement which crossed about 85 feet of his property which was how they gained access to the 70 -acre parcel. When the variances were given, he wasn't consulted and wondered why he was not consulted about an additional easement. He asked whether the County had the right to dole out easements of other people's land. He was concerned about the additional traffic on the dirt easement which would cause more dust. He was not in favor of the application. Richard Wright, design consultant for Carol Duntley, testified that he had visited Ms. Duntley's existing place in California. She owned a horse ranch with four thoroughbreds and wanted to continue the same operation in Central Oregon. She had every intention of continuing the farm use. She intended to build a barn near her prime residence. When they visited the site, they picked the location for the dwelling PAGE 12 MINUTES: 10/30/91 0108 010'7 primarily because of its view of the mountains. He felt there was enough room to site the dwelling, preserve Mr. Johnston's view, and minimize the impact on the neighbors. Greg Hendrix requested to rebut Mr. Johnston's concerns. He said the reason for the second variance was because the County Planning Department said they wanted the dedicated right of way but didn't care how wide it was, while the County Road Department said they didn't care whether it was dedicated or not, but they wanted it to be 60 feet. They approached Mr. Johnston and asked about doing that, however Mr. Johnston wanted the Hayes to agree to about $20,000 worth of paving in exchange. Mr. Hendrix told Mr. Hayes that he could get a variance for far less than $20,000, so they went ahead and applied for the variance. Mr. Hendrix said that the proposed dwelling would be behind the line of sight for Mr. Johnston's view. Mr. Johnston's attorney had written him several letters regarding his concerns, and he marked them Exhibits 1-4. The letter spoke primarily about a claim made by Mr. Johnston that he had the right to use the existing long road as the access to the Hayes home, a farm parcel and the Goldie home. He thought the reason Mr. Johnston wanted the right to use this road was it connected to BLM land, and he wanted direct access to the BLM land. He had responded to Mr. Johnston's attorney that he did not know of any right that Mr. Johnston might have to use that land, and that they should give him their basis for this right. He had not received a response from this request. For 40 years it had been a private easement. Deschutes County showed it as a private easement, and Deschutes County Title Company showed that this parcel had an easement across Mr. Johnston's property to that L-shaped piece of public land. He felt that Mr. Johnston was attempting to harm the proposed sale of land to Ms. Duntley since he sent a letter to Ms. Warner stating the Hayes did not have the right to drive across that 85 feet. He said they remained willing to work with the neighbors regarding legitimate neighbor issues. Rick Isham asked Mr. Hendrix if he expected the County to make a determination as to whether or not a second dwelling would exceed the scope of use of the easement. Mr. Hendrix said no, he did not feel it was an issue before the County. Mr. Johnston asked to submit some letters between his attorney and Mr. Hendrix into the record. Chairman Maudlin marked the letters Exhibits A - H. He said he sent a letter for Ms. Duntley to Ms. Warner because he had no way of contacting Ms. Duntley. There being no further testimony, Chairman Maudlin closed the public hearing. PAGE 13 MINUTES: 10/30/91 Commissioner Throop said he understood the landowners objectives but after reading the file and listening to the oral testimony, he agreed with the hearings officer and his findings. He agreed that this proposal would be a further dilution of the property as a farm parcel. He said this parcel had some of the best soil in the Tumalo area with 58 acres of water for the 61 acre parcel. He agreed with the hearings officer that the application was contrary to the purpose of the zone since existing agricultural land which had water appurtenant to it would be removed from production. He felt it was questionable that the existing use on the property was a valid farm use, and the application was for a different farm use. He felt it was impossible to assert a need for a farm hand dwelling when the use proposed had not been established, and the use needed to be established before the dwelling approval according to County and state law. There wasn't sufficient evidence that the new primary dwelling would be involved in the day-to-day activities of farming the land. He could find no basis to reverse the hearing officer's decision. Commissioner Schlangen was most concerned about taking prime farm land out of irrigation, and this parcel had excellent soil. The farm use had not been establish first to show a need for the dwelling. She agreed with the hearings officer's conclusion regarding the disruption of farm land and did not feel that the County should allow further delusion of farm parcels. Chairman Maudlin said the proposed farm use would be similar to raising llamas which made more money than all of the rest of the farms in Deschutes County. He didn't feel that establishing the "need" was necessary. He felt that if the Hayes had torn down the existing house and then asked for a farm dwelling, they would have gotten the permit. Then they could have requested to put a mobile home on the property indicating they needed help with the farm. He felt the only reason that this application was not handled administratively was because there was a letter of opposition. He felt the Hayes would have been better off to have partitioned the property down to three, 20 -acre parcels in the 1988. He felt it was ridiculous to turn down this application when it would mean there would be an owner living on the premises with a decent 60 -acre parcel being totally farmed. Commissioner Throop said he thought it was part of the deed that this property could not be divided further, therefore this was a 60 -acre farm parcel that should remain in the EFU zone forever. He didn't feel that removing the existing dwelling would have guaranteed another dwelling could have been built on other than the current dwelling site since the other lands would have water rights. PAGE 14 MINUTES: 10/30/91 0108 0109 THROOP: I would move that the hearings officer's decision be upheld and that findings of fact be written to support that decision and those be based on the conclusions drawn in the hearings officer's decision and comments made by the, I'll say prevailing commissioners this morning, this afternoon. SCHLANGEN: Second. Chairman Maudlin said he wanted to express as strongly as he possible could that if people wanted to enjoy a park, they should buy it. Commissioner Throop said this was an exclusive farm use parcel that had two dwellings on it. One had already been split off and the proposal was to put another dwelling in the middle of farm land that had water appurtenant to it. Deschutes County had the worst record in the state of Oregon for approving dwellings in farm zones. Chairman Maudlin said there was no testimony that the area where they wanted to place the dwelling was farmable. Commission Throop said the area had water appurtenant to it and that when these kinds of decision were made, the Board needed to look at the entire tracts not just parts of parcels. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: NO DESCHUTOS COUNTY BOARD OF COMMISSIONERS Nancy Pope BOCC:alb PAGE 15 MINUTES: 10/30/91