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1992-30906-Minutes for Meeting September 09,1992 Recorded 9/16/199292-30906 0119`0692 MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONE SF!D j September 9, 1992 r - ^;e Chairman Maudlin called the meeting to order at 10 a.m. Board members in attendance were: Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also in attendance were: Rick Isham, County Counsel; Bruce White, Assistant County Counsel; George Read, Planning Director; Paul Blikstad, Planner; and Karen Green, Community Development Director. 1. CONSENT AGENDA Consent agenda items before the Board were: #1, signature of Amendment to Personal Services Contract for Conservation for Central Oregon dba Bend Recycling Team; #2, signature of ODOT Agreement for possible crushed rock purchase; #3, signature of Personal Services Contract for Ralston Barber Communications; #4, signature of Resolution 92-104 establishing a petty cash fund for the Health Department; #5, approval of Amendment #23 to the 1992-93 Mental Health Intergovernmental Agreement; #6, signature of Personal Services Contracts with Dr. Geoff Hyde and Dr. John Rennebohm for FY -1992-93; #7, signature of Development Agreement for Ken Purkey as a condition of approval for LM -92-27 for property at 67015 Rock Island Lane; #8, signature of tax refund Order 92-103; #9, chair signature of liquor license renewal for LaPine Mini Mart and Sunsets at Orion Greens; #10, signature of Resolution 92-073 establishing a fee for a family planning device; #11, signature of City of Redmond plat for Hayden Village Phase IV. SCHLANGEN: Move approval of the consent agenda. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. PUBLIC HEARING: ORDER 92-094 PLATEAU ANNEXATION TO RFPD #1 Before the Board was a public hearing on Order 92-094 approving the annexation of Plateau Estates to Rural Fire Protection District No. 1 and scheduling the final hearing for October 7, 1992. Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. MAUDLIN: I request a motion for signature of Order 92-Q94. PAGE 1 MINUTES: 9-9-92 0119-0633 THROOP: So moved. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 3. WATER RESOURCE DISCUSSION WITH BOB MAIN Commissioner Throop said a couple of things came to the Board's attention recently, so they had asked Bob Main, South - Central Region Manager, Department of Water Resources, to come to this meeting. Commissioner Throop said there was a water right application for the Cyrus development in the Cloverdale/Sisters area which generated some discussion about land use policy in Deschutes County. He asked if Mr. Main knew anything about that issue and any discussion or conclusions drawn by the Water Resource Commission in that proceeding. Also, the Water Commission was going through some rule making proceedings to protect the Columbia River water resources for the protection of indigenous salmon species. This would affect the water basins (i.e. Deschutes) which impacted the Columbia system. There was discussion that they wouldn't just protect surface water but potentially ground water which might be providing surface water. Bob Main said the Water Resources Department staff had proposed that the Water Commission adopt amendments to the basin plans for all streams and tributaries for the Columbia above Bonneville which would close the surface water of those basins to any consumptive uses except uses which would promote fish recovery, domestic livestock and uses essential for public health and safety, i.e. fire fighting. He felt this proposal would be adopted. The impact on the Deschutes Basin was "not going to be that great." The upper Deschutes was already more restricted that this proposal. The Crooked River system would not be effected "because there was no water to apply for anyway." There was water to apply for in the Lower Deschutes, however he couldn't think of any "uses which could come up down there." The drafts that he had seen involved surface water only, not groundwater. He said there had been many, large groundwater applications in Deschutes County over the last ten years. The Commission had always felt uneasy about the lack of hard information about the ground water situation in the Deschutes basin. The Cyrus' application was the latest example. The Commission felt they had no factual basis to deny the application, however they "didn't feel good" about approving it. Commissioner Throop asked about the size of the Cyrus application. Mr. Main said he thought it was about 5 cubic feet per second. He ran a total of how many cubic feet per second had been applied for from groundwater from the Sister PAGE 2 MINUTES: 9-9-92 0119-0604 area since back in the 1950s, and he came up with a little over 100 cubic feet per second. He asked if the Board had received at letter from the Department of Water Resources, and the Board said they had not. Mr. Main said he could quote from the discussion of the Water Commission at their July meeting. He quoted Roger Bockman as stating, "I would think that Deschutes and Jefferson County Commissioners and economic development folks should be alerted to this threat." The threat being the lack of information and the increasing reluctance of the Commission to issue ground water usage permits without more information. They discussed whether the Water Resources Department should alert the counties of Central Oregon that the Commission felt there was a problem, and they would like to put the counties on notice and elicit their interest in trying to do something about it. The draft letter to the counties said that counties should not expect routine approval of groundwater applications in the future unless the Commission could get more information about the groundwater regime and how it worked. The Water Resources Department did not have any funds to get that kind information at this time. The City of Bend sponsored a meeting with U.S. Geologic Service recently, and the USGS suggested that the City do a groundwater study which would cost about $1 million. The USGS would pay for half and the other entities would have to come up with the other half. The other entitles might be Water Resources Department, the County, and developers. Chairman Maudlin asked how many applications for groundwater had been made in the Deschutes County area. Mr. Main said he didn't know but he could look it up, however he felt there had been quite a few, i.e. Black Butte Ranch, Indian Ford. Chairman Maudlin said it would be the developer's problem to convince the Water Resource Commission that water was available, not the County's. Mr. Main said the letter would suggest that it wasn't all the Water Resource Department's either. Commissioner Throop said the state had most of the authority over ground and surface water in Oregon. So he understood that Mr. Main was saying that the Water Resources Department was going to have a difficult time meeting this responsibility because they didn't have enough data to make decisions, however they were not in a position to get the data. Therefore, they wanted someone else to help get the data, but to retain the decision-making authority at the state level. Mr. Main agreed with his evaluation of the situation. Commissioner Throop asked if there was going to be a more restrictive approach to approving applications, what kind of criteria would the state use to either approve or deny applications. Mr. Main said they could propose rule making and make findings that the risk of issuing new water rights on ground water was too great in the Deschutes Basin without PAGE 3 MINUTES: 9-9-92 4. 5. 0119-0695 information and close it. The ground water regime question was so large that it was unreasonable to tell one individual who was applying for water that he/she was responsible to get the necessary data. Commissioner Throop said he understood that at the USGS meeting, it was determined that even if the County had the half million dollars to spend on the program, it would still be a five-year process. Mr. Main pointed out that all of the information would be made available as it was received. Commissioner Schlangen asked if the Department of Water Resources had any money to contribute to the groundwater study. Mr. Main said he wasn't aware of any money that could be used for this study. The Commissioners thank Bob Main for bringing them this information. ORDER 92-104 SALE OF TAX FORECLOSED PROPERTY FOR THE THOMAS' Before the Board was signature of Order 92-104 providing for the sale of tax foreclosed property to the record owner (Jeffrey Norman Thomas and Sheryl Ann Thomas) for the payment of past due taxes, penalties, deed costs, recording fees and administrative fees in the amount of $1,838.38. If approved, there was a Bargain and Sale Deed prepared for the Board's signature. MAUDLIN: I would entertain a motion for signature of Order 92-104 and signature of Bargain an Sale Deed. THROOP: I'll make the motion. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ACCOUNTS PAYABLE VOUCHER Before the Board was approval of Accounts Payable Vouchers in the amount of $328,695.74. SCHLANGEN: Move approval upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 4 MINUTES: 9-9-92 6. DECISION ON FENNELL REMAND Before the Board was a decision on Fennell decision on MP -91-27 which parcel into three lots in an EFU-20 oris -0696 the LUBA remand of the would divide a 60 -acre zone. George Read felt it was clear from the Board's work session on this topic that the criteria for partitions was unclear. He said staff had taken a position which legal counsel felt would be difficult to defend. He said the criteria required them to look at the comprehensive plan and the zoning ordinance. They had problems with the fact that there would be two houses on one of the 20 -acre parcels which only had 7 acres of water. There was a question of whether one house was a nonconforming use. They questioned whether the house would remain a farm dwelling. The staff report before the Hearings Officer indicated there was inadequate evidence in the record to justify that the house would be a farm dwelling after the partition, and therefore the partition would create a nonfarm dwelling. The applicant's expert provided evidence that the partition would not reduce the capability of the land to be productive. Staff commented at the end of that hearing that while the partition might not reduce the capability, it would split it up three ways. Based on evidence of how many animal units the parcel could have and then dividing that by three, they felt it was not shown that each parcel was suitable for the intended use. There was a question as to whether or not the record said there would be a dwelling on each of the parcels. Staff felt it was clear from the testimony that these would be hobby farms, so the question was still whether they would be suitable for farm use with 7 acres of water on a 20 -acre parcel. The Hearings Officer found that this application was inconsistent with the intent of the zoning ordinances. The next question was whether or not the dwellings conformed with the zoning ordinance, and whether the newly created parcels were suitable for the intended use. The Hearings Officer decided he could not make that decision, however a conditional use permit, on at least the existing parcel as a condition of approval to establish that it was a farm dwelling, would resolve that issue. Rick Isham said that when the County went to LUBA, two of the assignments of error related to use of the property more as residential and not as farm dwellings. Under the state statutes relating to partitions, it said "partition for farm use." Therefore, they went back to the administrative rule and argued to LUBA that because of the parcel's size, under state law the administrative rule would not allow this partition. LUBA said this rule related to the siting of a dwelling while this was a partition which met the minimum lot size and therefore, under state law, the fact that some subsequent application would have to be made for a dwelling PAGE 5 MINUTES: 9-9-92 0119-0697 was not relevant. He thought Mr. Read was suggesting that since under state law, the County's argument didn't win, that the County should pursue it under County ordinance. The ordinance said that "this proposal is in compliance with applicable zoning." When you looked at the "applicable zoning," the EFU section under uses permitted outright said, "farm use, dwelling customarily provided in conjunction with farm use." Some of these ordinances had since been amended twice, and he was already working on a new amendment. Based on those statements in the zoning ordinance, the Planning staff recommended that they apply under the September, 1991 amendments and actually make conditional use applications for these proposed lots. The difficulty he had with supporting the Planning staff position, was the County made the argument under state law and that argument was lost at LUBA. At LUBA they asked him, "well if you've got a 20 -acre zone, why can't you create a 20 -acre lot." In the LUBA decision, they said, "You must make the decision based on the standards and criteria in your ordinance." He said the County had, "in essence, no criteria." The County had subsequently established criteria after the application was submitted. George Read said that while dwellings were not a conditional use in the ordinance, since 1987 the County had treated dwellings as a conditional use because of court cases which said that these were discretionary decisions, and that the administrative rules, therefore, did apply to the County's zoning ordinance at the time this application was filed. Chairman Maudlin said there were two dwelling on one of the proposed 20 -acre parcels, however they were built prior to the comprehensive plan. Rick Isham said the original position was that you should have a permit for each lot to be proposed, and the County shouldn't allow the creation of a lot when it was unknown whether a building permit could be approved on the lot. However, the County's ordinance did not say that. The record showed that one of the existing buildings was built in the 1930s or 1940s, and the other one received its permits in 1977 before the current zoning and planning ordinances. He felt Mr. Read's position was that because the dwellings existed when the partition was requested, the applicant should be required to prove, in conjunction with the partition, that one would continue to be a farm dwelling. The second house would then be some kind of nonconforming use. The other side was whether there was anything which required them to do anything with the existing houses. Their tax status would not change unless the Assessor reassessed them to determine whether or not the parcels still qualified as a farm use. He felt the question was whether they were required to affirmatively deal with the issue of the house at this juncture or was it an issue at all with respect to the approval of the partition. PAGE 6 MINUTES: 9-9-92 Commissioner Schlangen felt lots should not be created when dwellings would not be allowed on them, which was why she voted the was she did on this issue the last time. She also questioned the suitability of the intended use. However, she interpreted the LUBA decision, the County could not apply the administrative rule to the partition, and that they met the criteria for a 20 -acre farm parcel. The applicants had assured they could keep the property in farm use. She didn't feel the County had much choice, even though she didn't want to allow the partition. Chairman Maudlin said he felt the same way, however the County lost its argument at LUBA. Commissioner Throop said he didn't feel the County "lost the argument," but that LUBA remanded it back to the County to look at it in a different way. He asked if there was any information in the record that could lead this Board to the conclusion that the partition would create parcels which were not suitable for the intended use which was farming. George Read said the problem was determining "what is farming." They had discussed whether it was conducting an operation with the intention of making a profit. The evidence and the record probably showed that they did intend to make a profit. Rick Isham said nothing was added to the record except the petitioner's information. Commissioner Throop felt it was "absolutely ludicrous" that the County would be creating these three parcels when it could be difficult to get dwelling permits for them. This would further proliferate the creation of small parcels in an area where that shouldn't be occurring. Commissioner Schlangen said she felt a little better about creating these parcels when she saw the number of small parcels in the surrounding area. Commissioner Throop restated what he understood the staff to be saying, "This application preceded the changes in the ordinance and because that was the initial application date, we can't consider those changes in the ordinance but must deal with the ordinances that were in place at the time of the original application." Mr. Read said that was correct. Chairman Maudlin pointed out that if someone wanted to place a dwelling on two of these parcels, they would have to apply for a farm dwelling which would be difficult. Therefore, it would probably be difficult for the partitioner to sell the parcels. However, he didn't feel the Board could deny this partition because of when the application was submitted and what was in the record. PAGE 7 MINUTES: 9-9-92 . 0119--0699 MAUDLIN: I would move that we allow the partition as requested and that it be noted in the findings, and I would instruct staff to make findings that uphold our discussion here, but to also note that these parcels do not necessarily... they are farm parcels and that an application for a farm dwelling must include the ordinances as they exist today or at the time of application. SCHLANGEN: I'll second it. Commissioner Throop said he was going to vote no because in order to vote yes, he would have to be able to determine that the parcels being created were suitable for the intended use. VOTE: THROOP: NO SCHLANGEN: YES MAUDLIN: YES DATED this 7 day of Commissioners of Deschutes 1 AT S 'Recording S c etary PAGE 8 MINUTES: 9-9-92