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1991-37434-Minutes for Meeting December 04,1991 Recorded 12/18/1991�g. MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS December 4, 1991 Chairman Maudlin called the meeting to order at 10 a.m. Bt?2WO " members in attendance were Dick Maudlin, Tom Throop and Nancy Pops: Schlangen. Also present were: Rick Isham, County Counsel; George Read, Planning Director; and Paul Blikstad, Planner. 1. CONSENT AGENDA Consent agenda items before the Board were: #1, this item was moved to the regular agenda; #2, signature of Construction and Maintenance Agreement with Burlington Northern Railroad Company for the widening an improvement to the Reed Road rail crossing in LaPine; #3, signature of Order 91-136 changing the road name of Onyx Lane to Onyx Street; #4, approval of expenditure for outside counsel involved with the Sunriver Incorporation; and #5, signature of MJP-91-2 dividing a 60 - acre parcel into three lots in an EFU-20 zone for Mike Knoell. THROOP: I'll move those four items. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. CONTRACT FOR IMPROVEMENT OF RAIL CROSSING AT CHINA HAT ROAD Before the Board was approval of signature of Construction and Maintenance Agreement with the State Highway Department and Burlington Northern Railroad Company for the widening and improvement of the rail crossing at China Hat Road. THROOP: I'll move signature of Construction and Maintenance Agreement with the State Highway subject to review. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 1 MINUTES: 12-4-91 ..1 0108 0634 3. PUBLIC HEARING: ORDER 91-101 VACATING OF PORTION OF OMAHA ROAD Before the Board was a public hearing on Order 91-101 regarding the vacation of a portion of Omaha Road in Sisters. Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. MAUDLIN: Have motion for signature of Order 91-101. SCHLANGEN: So moved. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 4. ORDINANCE 91-047 REPEALING BUSINESS LICENSE CODE Before the Board was signature of Ordinance 91-047 repealing Chapter 5.04, Business Licenses, of the Deschutes County Code. Chairman Maudlin said this Chapter was regarding business licenses for entertainment businesses and was not being enforced. THROOP: I'll move first and second reading by title only of Ordinance 91-047. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 91-047. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 5. ORDER 91-137 ESTABLISHING ROAD NAME OF RUNNING HORSE COURT Before the Board was signature of Order 91-137 establishing the road name of Running House Court. PAGE 2 MINUTES: 12-4-91 6. 7. RE THROOP: I'll move signature of the order. 0108 0635 SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ORDER 91-138 CHANGING ROAD NAMES TO BRADETICH LOOP Before the Board was signature of Order 91-138 changing the name of North Bradetich Drive and South Bradetich Drive to Bradetich Loop. THROOP: Move signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ORDER 91-139 CHANGING NAME OF ROAD TO PEACOCK LANE Before the Board was signature of Order 91-139 changing the name of a portion of McGrath/Waugh Road to Peacock Lane. THROOP: I'll move signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES WEEKLY WARRANT VOUCHERS Before the Board were weekly bill $105,308.79. SCHLANGEN: Move approval upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 3 MINUTES: 12-4-91 in the amount of 9. JOHNSON ROAD Before the Board was a request for an easement across county land off Johnson. Chairman Maudlin said a public hearing was scheduled for December 18, 1991, involving the exchange of this easement request for a conservation easement along the river which would connect the two state parks. Becky Scott said she was representing Marlene and Frank Hemstreet, 64000 Johnson Road West, who purchased 29+ acres two years ago which had access from a nice, gravel road which went through County land. Mr. Clark with Cascade Pumice also had access from this same road. After getting the preliminary title report, she found there was no legal access into the Hemstreet's driveway. After considerable research, she found the Deschutes County Road Department had signed and approved a telephone cable to be buried along the subject road. The Road Department employee told her the only reason he would have approved the cable being buried along this road would be because it was a public access road. She had a letter from Hap Taylor, who previously owned the property where Cascade Pumice was currently located, and he saidhe knew he had legal access to use that road. She had a letter from William Smith stating he remembered the road access being put in the Commissioners' journal, however she had been unable to locate it. She had letters from Mr. and Mrs. Hemstreet. Mr. Hemstreet was very ill with cancer and could not attend this meeting. In Mr. Hemstreet's letter he spoke of the six months he spent working with the County to get all of the proper things done, and felt he had legal access. The original conditional use permit which was approved referred to the access road. She also brought pictures of the road. She spoke to Charlie Plummer who remembered that the mining area which was now owned by Cascade Pumice was where the County once stored aggregate and probably maintained the road. The Hemstreets felt the County should either established the road by resolution or give them a legal easement. She said the Hemstreets did not want to trade their private land along the river for a road easement, because they felt they, and everyone else, had already been using the road for years. They wanted the County to grant them the easement so that they could sell their property. Commissioner Throop said when property was conveyed there was always a paper trail. If there was no paper trail, there was no easement. He asked if anyone could produce a copy of the easement. Becky Scott said she was not the broker on this property two years ago. The broker and the sellers told her that when they talked to the County about this road, the County asked Mr. PAGE 4 MINUTES: 12-4-91 0108 0637 Hemstreet to name the road so they could come out and put a sign up. The County considered it as a public access. It never came up in the discussion that an easement would be needed to use the road. Mr. Plummer also felt that it had been a County access road for a long time. It was not a road that was "punched through" for this house. The road was there prior to the house and had been there for a long time. Mr. Smith said he remembered it being written in the Commissioner's journal in 1972, however she had been unable to find it. She said this road had been used by Mr. Clark, Mr. Hap Taylor, Mr. Bob Coats and Mr. Jerry Curl. They all told her it was a public access road, and there was never a question as to whether they could use it or not. Commissioner Throop said if it were a public way, there would be legal documentation which would have established that classification, and if there was an easement, there would again be legal documentation. Becky Scott asked why the County couldn't establish this road as a public road. She said they got a proper building permit a couple of years ago. Rick Isham said that access to the property was not a condition for a building permit. He said a property owner could, theoretically, helicopter in the building materials. The County was not authorized to deny a building permit based on access and they didn't confirm access upon issuance of a building permit. Becky Scott asked what would stop the County from giving the Hemstreets this easement. Commissioner Throop said the County had made an offer. Becky Scott said the Hemstreets would not accept that offer. Commissioner Throop said this road crossed and divided County property which reduced the value of this asset. He said this was not only an asset of the County but all of all the taxing districts. If the parcel were sold, all the proceeds would be distributed to all the taxing districts proportionate to their percentage on the tax role. He felt this road reduced the value of this public holding, and therefore took money away from schools, parks, city, county, etc. The Commissioners had directed the property manager to propose this trade for the easement. He said there were state park parcels on both side of the Hemstreet property, and the proposal was for the Hemstreets to grant an easement which would allow public access between the state parks as a trade for the reduction in value resulting from the division of the County property. He asked why the property owners felt they should "get something for nothing" as opposed to a trade. Becky Scott said that when she first spoke with Mr. Chalfant, she was told that all she needed to do was furnish a legal description of the road and an easement of the road would probably be granted by the Commissioners. When she submitted the legal description, Mr. Chalfant said there would have to PAGE 5 MINUTES: 12-4-91 be some kind of a trade. She said Mr. Chalfant spoke to her about a conservation easement, but never brought up that there would be any kind of a path or any kind of a connection between the state parks parcels on both sides. She said for the public to use this area "would just take away tremendously from this house." The house was on the edge of the rim, 100 feet up from the high water mark. There was a steep 30 degree grade, and there couldn't be a path without a lot of excavation and removal of trees. This would all detract from the property and wouldn't be fair to the property owners. She said the first time she heard anything about a path was last week. She felt the County was requesting an unfair trade, since this road had already been used for 30 years. She felt that at some time the County had maintained the road. Commissioner Throop said the County did not and never had maintained the road. She said Mr. Hemstreet was a sophisticated buyer and had built motels, and he felt he was "hoodwinked" by the County on this deal especially since the County Road Department signed approval for the telephone line to be buried down this road. Brad Chalfant said that when Becky Scott came to him, she presented him with a map showing a road crossing county land and said she needed an easement. He told her he would have to look at the property, and that it could be a problem if it did subdivide County property. When he visited the site, it was clear that the road was not where she had indicated it was on that map. He requested a legal description to determine whether or not the road was, in fact, on County land. Becky Scott provided the legal description, and it was clear that the road did cross County land. He confirmed with the Road Department that the road had never been permitted. When he met with Becky Scott on the site, they discussed an easement along the river, and he told her the County would not be building trails but State Parks might build trails to connect their park property. It was understood from the beginning that this conservation easement included public access. Rick Isham asked Brad if, as Ms. Scott alleged, he never mentioned public access until last week. He said no, and said he discussed it with Bob Lovlien approximately four weeks ago. Whenever there were discussions with Ms. Scott regarding an exchange, it had always included public access. Becky Scott said she would have immediately said no to any kind of trade which included public access. The buyers sat on the deck for three hours on a warm summer day and listened to the children across the park to see if the noise would bother them; so she knew they would never accept public access right below their deck. She felt she had made that clear to Mr. Chalfant. She said there was never any discussion about connecting the two state parcels. PAGE 6 MINUTES: 12-4-91 0108 0639 Chairman Maudlin said there was never any question in the minds of the Commissioners that the conservation easement along the river did include public access. He did not feel that a trail would or should be built. Until it was fenced off, there had been a path that ran along the river which fishermen used. He was not in favor of taking out trees to build a trail. He said state parks could not build a trail in there because the County would own it. He felt the Commission needed more information before it could make a decision, i.e. if the County closed the road, whose access would be blocked. Commissioner Throop asked Mr. Clark if Cascade Pumice had legal access to this road? Chuck Clark, manager at Cascade Pumice at Deschutes Junction, said they purchased the property from Mel Loy and everyone had always used this road. He didn't feel someone should have to give up their land along the river to trade for use of the road. He felt the person that built the home should have been forewarned that he didn't have an easement for this road. Commissioner Throop said it wasn't the County's function to determine whether or not people had access to their property. That was the responsibility of the property owner. He felt people were using this road without permission. Rick Isham pointed out that this property did have legal access on Johnson Road, so it was not landlocked. Legal access was established by it being contiguous to a public right-of-way (Johnson Road). Mr. Clark said they were researching to try to find documentation for an easement for this road. He said there was a way they could get to their property without using this road, but it would be very convoluted. Becky Scott said they might have legal access from Johnson Road, but it was not possible to place a road there because of the cliffs. She didn't believe any bank would loan money on this property without a legal access to the property other than Johnson Road. Dugan Pearsall, Cascade Pumice, said they did not have access without this road. They had a corner that touched Johnson Road, however they were basically "land locked." Chairman Maudlin said a public hearing had been scheduled concerning the exchange of property involved for this proposed easement, however if the property owner wouldn't accept a trade, there was no reason to have the public hearing. Chairman Maudlin felt the Board needed further information regarding this issue before making a decision. They requested PAGE 7 MINUTES: 12-4-91 Cascade Pumice to provide maps to Brad Chalfant who could do some further research (i.e. where the road actually crossed County property, access for surrounding property owners). Rick Isham asked for a clarification on whether Becky Scott had indicated that there was no need for the Public Hearing scheduled on December 18, 1991, for an exchange of land. Becky Scott said that was correct. Commissioner Throop asked if the property owners had a counter proposal on how to compensation the taxing districts for the loss of value that this easement would establish. Becky Scott said this road had been used for a long time by many people. Rick Isham said that in his experience with the County, any easement which had ever been granted had been granted on a section line. The County would never grant an easement in the middle of a parcel. In the 60s and 70s, a lot of people didn't bother to get a survey and would just put the road in where they thought it should go. However, it was his belief that it was unlikely that the County would have issued an easement in the location of the subject road; and if an easement had been granted there would be documents to confirm the easement. Therefore, even if they were able to come up with a document confirming the easement, it was unlikely that the road was placed where the easement was granted. He had never seen the County grant an easement that would split a county parcel at a partial diagonal thus rendering a large piece of the property unusable for any purpose. Chairman Maudlin asked if an easement wasn't granted, what the County would do (i.e. nothing, build a fence, or buy the property). Commissioner Schlangen wondered whether the road could be moved to the section line. Commissioner Throop said the Board needed more information before making a decision. Becky Scott said the Hemstreets indicated that if the County wanted to hold them "hostage" that they would be happy to trade the 2-1/2 acres across Johnson Road for the easement. Commissioner Throop objected to her language and said the County was holding no one "hostage" and such language was counter-productive to their case. Becky Scott asked why Bob Kirk, a County employee, agreed that they could bury a telephone cable along this road. Commissioner Throop said he may have made a mistake. Chairman Maudlin asked that maps be given to Brad Chalfant so he could prepare maps that would include distances from the road to the east and to the west, and whether the surrounding property owners could access their property any other way. This issue would be discussed again at the Board's December 9 work session. PAGE 8 MINUTES: 12-4-91 0108 0641 10. CONSERVATION EASEMENT FOR QUACKENBUSH Before the Board was signature of a Conservation Easement for Mary Quackenbush for a new dwelling adjacent to Tumalo Creek. THROOP: I'll move approval of the Conservation Easement. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 11. PLAT FOR PARKRIDGE ESTATES PHASE II Before the Board was signature of Subdivision Plat for Parkridge Estates Phase II off Neff Road for Genstil and Marconi. THROOP: I'll move signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 12. PLAT FOR SKYLINE CONDOMINIUMS, STAGE 1 Before the Board was signature of a Plat for Skyline Condominiums, Stage 1, located northwest of the intersection of Abbott Drive and River Road in Sunriver. THROOP: I'll move signature. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 13. LEASE PURCHASE DOCUMENTS FOR FRONT END LOADER Before the Board was approval of signature of lease purchase documents for front end loaders for Public Works. SCHLANGEN: I move approval subject to Legal Counsel Review. THROOP: I'll second. PAGE 9 MINUTES: 12-4-91 0108 0642 VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 14. PUBLIC HEARING: FENNEL APPEAL Before the Board was an appeal of the Hearings Officer's denial of MP -91-27, a minor land partition to divide a 60 -acre parcel into three lots in an EFU-20 zone. Paul Blikstad said the parcel was located at 23195 Bear Creek Road and was described at 18-13-4 Tax Lots 100 and 106. The criteria relied upon for this review was Chapter 18.28 of Title 18, the Deschutes County Code for the EFU-20 zone, the Deschutes County Comprehensive Plan, Title 17 of the Deschutes County Code --Subdivisions and Partitions, and Oregon Revised Statutes Sections 215.263, establishing criteria for land divisions and 215.243 establishing state policy for EFU zones, and the Deschutes County Procedures Ordinance. He said this application was originally denied administratively by the Planning Director in a written Findings and Decision dated July 5, 1991. That decision was appealed by the applicant and referred to a hearing before the county Hearings Officer on August 20, 1991. The Hearings Officer denied the partition in a written decision dated September 17, 1991. The Hearings Officer found that the subject property would be more productive as a 60 -acre parcel with 22.5 acres of irrigation water rather than as three 20 -acre parcels with 7.5 acres of water. The hearings officer also found that the proposed division would not create parcels for farm use as the lots had minimal water rights and agricultural productivity and that the lots would instead be rural residential parcels. Chairman Maudlin asked if any members of the Board had had any ex parte contacts on this issues. Board members said they had had no ex parte contacts, however Commissioner Schlangen said she had driven by the site. Chairman Maudlin asked if there was anyone who wished to challenge any member of the Board's ability to hearing this matter. There were no challenges. Chairman Maudlin opened the public hearing. Dennis Fennel, representing the applicant Horace C. Fennel, said he would like to keep the record open for seven days. He referred to page 4 of the Findings and Decision on this application where it referred to conformance with ORS Chapter 215 and that the proposed division of land was "appropriate" for the continuation of the existing commercial agriculture enterprise within the area. He said there was nothing in the testimony in this case or in the findings to indicate that the continuation of farm use would not be possible. He felt dividing this 60 -acre parcel into three 20 -acre parcels would be beneficial. PAGE 10 MINUTES: 12-4-91 0108 0643 Commissioner Throop asked why it would be beneficial to the "continuation of the farm use" to divide it into three parcels. Dennis Fennel answered "primarily because of economics." He said no one in this area of Deschutes County was going to make a living on 60 acres of land with 20 acres of pasture. You could not make a living on 20 acres either, however he felt it was more appropriate for a 20 -acre parcel since someone would have to work outside the farm to supplement the farm income. Commissioner Throop asked him how dividing the amount of water would improve the farm use. Mr. Fennel said he didn't feel it would make any difference. He said dividing the pasture into three didn't change anything, because on 60 -acre farms it was common to cross fence the property. He said the County proposed the possibility of dividing the property the other direction, however he felt that division would "run afoul of the Clackamas County case" because the northern most section would have no water at all. Mr. Fennel said the Comprehensive Plan stated that the purpose of the Exclusive Farm Use Zones was to preserve and maintain agricultural lands for farm use. He said to "preserve and maintain" was not the same thing as what was found by the hearings officer. The hearings officer referred to "more suited" for farm use by retaining its current size. He did not see why "more suited" or "the best farm use" were used in the conclusionary findings, since they were not part of the law. The evidence at the hearing supported that there was nothing wrong with dividing the property into the three parcels from an economic standpoint or a water standpoint. Page 6 of the findings said "the applicant must establish that the proposed parcels will provide lands which would enable farm use activity." He felt they had shown that the division would "enable farm use activity." To show that it was the "best farm use" or the "most suited" was not their burden. Rick Isham asked if their argument was that they had met the burden under the standards and criteria which were set forth in the Ordinance, and that the standards and criteria upon which the hearings officer denied their application was not contained the a County Ordinance or any law which would be applicable to this application. Mr. Fennel said yes, that was one part of his argument. Mr. Fennel said the second part of his argument was that, factually, there was no basis for the conclusion of the hearings officer that the three 20 -acre parcels would be rural residential parcels rather than farm use parcels. He didn't feel that the Smith v. Clackamas County case applied to this application. The Smith case involved a person who wanted to build a nonfarm building on farm land. There was approximately 7 -acres out of a 47 -acre parcel which was not farmable. The issue was, did you base your decision on the PAGE 11 MINUTES: 12-4-91 0108 0644 seven acres or on the entire parcel. The court decided that the decision should be made on the entire parcel. He didn't feel it would apply in this case because this was not a request for a nonfarm dwelling, and in the Smith case, there was no separate appeal to separate that seven acres from the remaining part. He maintained that this was a farm use application not a nonfarm application, and therefore whether or not residences would be built on these 20 -acre parcels was not an issue. He maintained that the 20 -acre parcels were viable farm units. Commissioner Throop asked what the purpose of the partition was. Mr. Fennel said his father was 70 years old and could no longer farm the 60 acres, and there wasn't enough money available to maintain the farm, i.e. build fences. Chairman Maudlin said he didn't feel that the Clackamas County case applied in this situation either. He asked if there was any policy regarding 10 acres of water being necessary for a 20 -acre parcel to be considerable farmable. George Read explained that the County Assessor's office generally looked at a minimum of 10 -acres of irrigation in determining whether or not a farm assessment should be applied. He said in this case, the non irrigated land was on farm deferral as wasteland and not as farm land. The question was when 60 -acres of property was divided so there was only 7 acres of irrigation per parcel, would the parcels be disqualified from farm tax deferral. He said the 10 -acres of irrigation was a threshold the Assessor's office used. If it was close to 10 acres, they would scrutinize the farm use on the property more closely, while if it were more than 10 acres, they would look at the farm use less closely. Commissioner Throop asked about the size of the surrounding parcels. Mr. Fennel said another 60 -acre parcel had been divided into three 20 -acre parcels, there were 4 -ten acre parcels, to the east there was County land which was about 120 acres which continued across the road, and there were some smaller parcels west of Ten Bar Road. Horace Fennel, applicant, wanted to discuss "what constituted a farm." He had been in the area for 30 years and said that the tax assessor told him to put his farm in deferral. He felt you could have a farm on one acre. He said no one had come up with a viable answer to what constituted a farm. At one time he had 160 -acres in this area, and he broke off one 60 -acre parcel and one 40 -acre parcel which had been broken into four, 10 -acre parcels. George Read said the application of Smith v. Clackamas County was not a finding in the hearings officer's decision, however it was a finding in the staff decision. The staff determined PAGE 12 MINUTES: 12-4-91 0108 0545 that this partition was not a farm partition, however because of the layout of the land, they could do a farm partition on part of it and a nonfarm partition on the wasteland or non -irrigated parts. Prior to Smith v. Clackamas County the staff probably would have created a farm parcel and two nonfarm parcels which would have kept the farmable tract together. That option was no longer available because of the Smith v. Clackamas County case which said that the County had to look at the entire parcel and make a finding that the entire parcel wasn't suitable for a farm use, before they could do a nonfarm partition. Since they were not asking for a nonfarm partition, Smith v. Clackamas County would not apply. The real issue was were the parcels suitable for the intent as farm parcels. Chairman Maudlin asked what a farm parcel was. Mr. Read said Deschutes County was acknowledged with a EFU-20 zone, and it didn't indicate how much of that parcel had to be irrigated to be a farm. Looking at the statute, it referred to "a commercial farm operation." There was a question as to whether a 20 -acre parcel with seven acres of water could be considered a commercial farm operation. He said they were trying to make a finding that the parcels would be "suitable" now, so that unbuildable parcels were not created. Chairman Maudlin asked if this property would be removed from farm deferral if it were partitioned. George Read said the partitioning would not take it off farm assessment, however when the parcels were sold, he felt the Assessor's Office would review them and determined whether or not they were farm parcels. Rick Isham asked what there was in the record which would support the decision that these parcels would not be suitable for farming with seven acres of irrigation. George Read said the burden was on the applicant to show that these would be farm parcels, and the hearings officer said he felt there wasn't evidence to show that they would be farm parcels. He felt the Hearings Officer's findings were "off the mark" in not stating why the criteria applied, i.e. "suitable for the intent." Rick Isham asked what was in the record which the Board could point to if they were to decide that this partition would not result in farm parcels. George Read said the finding of the Board would be that these were not "suitable farm parcels" because they didn't have enough water to make a viable farm unit which was supported by the record. Dennis Fennel said there was no evidence in the transcripts thate these three 20 -acre parcels could not be farmed. The testimony was that they could be. He felt the Findings and Decision stated the hearings officer's opinion, which was not supported by any evidence. PAGE 13 MINUTES: 12-4-91 Chairman Maudlin announced that the record would be left open for written testimony until 5:00 p.m. on Wednesday, December 11, 1991; and that a decision would be made on Wednesday, December 18, 1991, at the end of the meeting. Chairman Maudlin closed the public hearing for oral testimony. DESCHUTE COUNTY BOARD OF COMMISSIONERS To Thr op,EChairman Nancy Popemmissioner Di Maudl BOCC:alb PAGE 14 MINUTES: 12-4-91