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1992-36275-Minutes for Meeting September 30,1992 Recorded 10/20/199292-36275 0119-1164 MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS'` September 30, 1992 Chairman Maudlin called the meeting to order at 8:30 a.m. Board members in attendance were: Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Susan Mayea, Commissioners' Office Manager; Mike Viegas, Risk Manager; Karen Green, Community Development Director; Kevin Harrison, Senior Planner; George Read, Planning Director; Catherine Morrow, Planner. 1. CONSENT AGENDA Consent agenda items before the Board were: #1, approval of waiver of performance and payment bonds on contracts for three pieces of equipment for the Public Works Department; #2, approval of Amendment #22 to the 1991-93 Mental Health Intergovernmental Agreement with the State; #3, chair signature of liquor license renewals for Millican Store, Ahern's Stop N Shop in Black Butte, Quail Run golf Course, T. J.'s Quick Stop Market, and two for BlondieIs in Sunriver; #4, signature of tax refund Order 92-111. THROOP: I'll move approval of the four consent agenda items. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. UPDATE ON LAPINE FACILITIES PLAN Susan Mayea introduced Terry Angle, project manager from Century West Engineering, and he gave the Board a preliminary engineering plan updating the LaPine Facilities Plan. She asked that the Board approve this engineering plan as the facilities plan update to annex new areas into the plan. Terry Angle said he had completed a facilities plan update to annex two areas to the LaPine Sewer District. The north area (Wickiup Junction) was not included because they ran into problems getting approval from Farmers Home Administration. They needed a commitment from DEQ stating that there were environmental concerns in the Wickiup Junction area. Since DEQ was unwilling to make this commitment, the Farmers Home Administration would not fund that portion of the annexation area. The other concern was the zoning in the Wickiup Junction area which didn't include all of the area where PAGE 1 MINUTES: 9-30-92 Q 0119-1105 people wanted to be annexed. However, the south area of the project was moving forward and was very likely to get Farmers Home Administration funding. This area included the industrial park and was immediately adjacent to the existing sanitary district to the east. Commissioner Throop asked him to explain further why the Wickiup Junction area could not be included. Mr. Angle said the number of residential users within the rural service center zone wasn't large enough to get Farmers Home funding. However, the biggest reason was that DEQ would not support the project by stating that there was nitric contamination of the ground water in this area. The Farmers Home Administration funded projects statewide which had the highest health hazard need, but without DEQ support, that need could not be demonstrated. Commissioner Throop asked what it would take to include Wickiup Junction. Mr. Angle said the people at Wickiup Junction would have to amortize 100% of the improvements themselves, or a very extensive ground water monitoring program could be undertaken to convince DEQ of the nitric contamination. Commissioner Throop asked what the cost would be to the Wickiup Junction property owners. Mr. Angle said it would be several hundred thousand dollars. Chairman Maudlin expressed frustration that the County had stopped development in the Wickiup Junction area because of concerns of contamination, and now DEQ was saying there was no contamination. Mr. Angle pointed out that if DEQ had committed in writing that the area was contaminated and funding for the sewer project had been unavailable, DEQ would have had to force the issue and require that the property owners in the area pick up 100% of the costs. Commissioner Throop asked George Read, Planning Director, what the County's approach to development in the Wickiup Junction area was. Mr. Read said approval of development was based upon the individual site analysis, and there were no specific bans on individual subsurface sewage disposal system placement in the Wickiup Junction area. The problems came with commercial development and restaurants. He knew of some new septic approvals which had been made within the last year. Chairman Maudlin remembered that the County had denied the development of an RV park in this area. Mr. Read said, generally, one dwelling unit per half acre or acre in that area would receive approval, however with greater density "that's where you start running into problems." Commissioner Throop pointed out that concern about contamination in the Wickiup Junction area was the reason that the sewer plan was pursued in the first place, and now it wouldn't even be part of the plan. Chairman Maudlin said the County had made every effort to include the Wickiup Junction PAGE 2 MINUTES: 9-30-92 0119-1166 area in this plan, however it would have taken the cooperation of DEQ to make it work. MAUDLIN: I would entertain a motion to approve the LaPine Facilities Plan Update. THROOP: I'll make the motion. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 3. PROPERTY INSURANCE RENEWAL WITH CHUBBS INSURANCE Before the Board was approval for renewing the County's property insurance agreement with Chubbs Insurance. Mike Viegas said the County's Agent of Record had recommended that the County stay with the current insurer, Chubbs Group. He had asked for comparisons, however only CCIS was willing to submit quotes. The 1991-92 annual premium was $43,764, and there would be a slight increase since he had increased the contractor equipment schedule by $1 million this year. There had been a nominal amount of claims during the last year. The Agent of Record also recommended that the Kemper boiler/machinery coverage be increased to $5 million which would increase the premium by about $700. They recommended that this coverage be moved from Kemper to Chubbs since the County could get $100,000 in refrigeration breakdown coverage for only a few dollars more than the premium for $50,000 coverage with Kemper. He had a Chubbs representative go through all of the County buildings and reassess their replacement values. The CCIS quotes were about $12,000 higher that the Chubbs Group proposal. Chairman Maudlin asked what the refrigeration breakdown coverage would include. Mr. Viegas said it would include all of the County's air conditioning systems, i.e. for the vaccine at the Health Department. Chairman Maudlin asked if that coverage was per occurrence or the contract maximum. Mr. Viegas thought it was the total claim amount for the year. Chairman Maudlin felt that was unlikely and asked Mr. Viegas check it out and get back to the Board the following week. 4. ACCOUNTS PAYABLE VOUCHERS Before the Board was approval of the weekly bill in the amount of $62,850.73. SCHLANGEN: Move approval upon review. PAGE 3 MINUTES: 9-30-92 01-19-1167 THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 5. SUBDIVISION PLAT FOR SOUTH FORK VILLAGE Before the Board was signature of a final subdivision plat for South Fork Village on Ladera Road. SCHLANGEN: Move signature. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 6. MP -92-6 FOR HERGERADER Before the Board was signature of MP -92-6 dividing a 33 -acre parcel into 3 lots in an MUA-10 zone on Deschutes Market road for Ralph Hergerader. SCHLANGEN: Move signature. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 7. PLAT FOR EAGLE CREST XII Before the Board was signature of plat for Eagle Crest XII which would create five time-share unit lots within the Eagle Crest Resort. THROOP: Move signature. SCHLANGEN: Second VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 8. RESOLUTION 92-077 CONCERNING CDD QUICKSTART AGREEMENTS Before the Board was signature of Resolution 92-077 authorizing the Coordinated Services Director of the Community Development Department to sign Quickstart Agreements. PAGE 4 MINUTES: 9-30-92 01.9-1168 Karen Green said the Ordinance which adopted the Quickstart Program authorized Bill Newell and herself to sign the agreements on behalf of the County. Since there were times when they might both be out of the office, she felt it was appropriate to designate a backup signer so people would not be held up. THROOP: I'll move signature of the Resolution. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin suspended the meeting of the Deschutes County Board of Commissioners and convened as the Governing Body of the Deschutes County 9-1-1 County Service District. 9. LEASE PURCHASE AGREEMENT FOR RECORDING EQUIPMENT Before the Board was chair signature of a Lease Purchase Agreement with Dictaphone Corporation for the purchase of recording equipment. THROOP: I'll move signature of the Lease Purchase Agreement for the 9-1-1 recording equipment. SCHLANGEN: I second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin adjourned the meeting of the Governing Body for the Deschutes County 9-1-1 County Service District and reconvened as the Deschutes County Board of Commissioners. 10. DECISION ON EFU ZONE AMENDMENTS AS PART OF PERIODIC REVIEW Before the Board was a decision on amendments to Chapter 18.16 (EFU zones) of Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance, and to the Agriculture Section of the Deschutes County Year 2000 Comprehensive Plan. Chairman Maudlin said that numerous letters had been received by the Board after the public hearing and had been made a part of the record. Kevin Harrison said that the Board held a public hearing on the draft amendments to the zoning ordinance of the Comprehensive Plan on September 23, 1992, and kept the record PAGE 5 MINUTES: 9-30-92 0119-1169 open for written testimony until 5 p.m. on September 28, 1992. All written materials which were submitted to the Planning staff had been forwarded to the Board. He said these amendments would not zone any land EFU which was not currently zoned EFU, nor would they remove any lands currently EFU from that zoning designation. The Board needed to make a decision on the draft amendments, and then the staff would prepare the final ordinances for the Board's signature based at that decision. Commissioner Schlangen asked on Page 2 (B), where it listed manufactured home as a secondary accessory dwelling, if it meant that a manufactured home could not be the primary dwelling. Mr. Harrison said no, and that this was a provision for a farm -help residence where a primary residence already existed. She asked that he explain (H) concerning "homestead." Mr. Harrison said this was a use that had been in the ordinance for some time. The idea was to create a life estate for a farm owner so they could stay on the property in their house. Commissioner Schlangen asked if another home could be built for the people who would actually be running the property. Mr. Read said no. They could keep their homestead and sell the property, however another house could not be built on the property. Commissioner Schlangen asked what sort of costs were included in the language on page 5 (b). Mr. Harrison said this standard came out of state statute. The County would have to identify surrounding lands which were in farm or forest use and then detail accepted farm or forest practices on those lands. For example, certain types of operations required spraying, and if the operator of that property could not spray because of the close proximity of a proposed residence, it would increase their costs. Rick Isham asked if that involved current practices or possible future practices. Mr. Harrison said they were talking about surrounding lands which were currently devoted to farm or forest use, and it was based on the staff's best assessment of what the accepted management practices were on those lands. Commissioner Schlangen said on Page 6 she would like to see clear and objective conditions for the nonfarm dwelling conditional use. Mr. Harrison said there were four statutory requirements for non-farm dwellings, and they had been incorporated into the County's ordinance. Those standards were not clear and objective and were somewhat vague, however they had been interpreted through a series of court cases. Mr. Read said that when drafting ordinances, staff had considered whether to include decisions from court cases. It was decided that because the decisions changed from time to time, it was best to use the state statute language rather than try to clarify court cases. The Planning Commission PAGE 6 MINUTES: 9-30-92 0119-1170 recommended that the language not go beyond what the state statute required in limiting nonfarm dwellings, therefore they included only the statutory language. Commissioner Schlangen asked whether the numbers of irrigated acres could be rounded off since irrigation was usually purchase in 10's? Mr. Harrison said this had been discussed with Bob Greenstreet of the County Assessor's Office. In order to do that, the County would have to provide adequate justification in the findings document to indicate why those figures would still be representative of commercial agriculture in the County. Commissioner Throop felt this issue needed to be resolved before proceeding and asked staff whether the rounding of irrigated acres would be justifiable? Karen Green said there would be a problem if the County rounded the figure down, because that would not be consistent with the data in that it would then be less than the median. George Read pointed out that in the Tumalo/Bend/Redmond area where the number of irrigated acres was 23.3, rounding the figure would probably bump it up to 25 or 30 acres which would be nearly a 30% change in the median and would be difficult to justify. Chairman Maudlin asked if any consideration had been given to the Planning Commission members who said the 20 -acre parcels in the Bend/ Redmond/ Tumalo zone had to be addressed because this proposal wouldn't work for them? Mr. Read said these properties would fall into the tier 3 approach which would allow the County to consider the quality of the land and whether or not there were additional dry lands. He said the Planning Commission's primary concern was for allowing dwellings on existing parcels. They weren't as concerned with partitions, since there were an adequate number of lots which could be created without using tier 3. Commissioner Schlangen expressed concern that the income test in tier 3 was very stringent., Mr. Read said the gross sales under tier 3 were specific to the type of agriculture which was intended. Mr. Harrison said the income test was based on the stable crops within each subzone, i.e. hay and pasture, and was based on what could be produced on a piece of property which met the tier 1 standard for those indicator crops. If someone couldn't meet the tier 1 or tier 2 test, in order to meet tier 3, they'd have to have a high value crop or some kind of livestock operation. Mr. Read said one of the issues raised by DLCD and 1000 Friends of Oregon was that the County shouldn't use the indicator crop (lower number which was the median type of agriculture) but should change it for each type of agriculture. This still needed to be worked out with DLCD. County staff felt that the value needed to be based on a stable indicator crop. Commissioner Throop said he thought the Planning Commission's reason for putting tier 3 in for PAGE 7 MINUTES: 9-30-92 0119-1171 dwellings was to give the owner another opportunity to justify a dwelling. Karen Green said the County's data base allowed the County to determine which farms were really contributing to the agricultural economy. Half the farms contributed only 10% of the agricultural economy. 1000 Friends of Oregon felt the pool should consist only of the top 10%. The County was trying to find a place which was justifiable by the data, legally defensible, and which made some logical sense. Commissioner Throop said his concern was that the proposed package was too flexible and too loose on partitions while being too restrictive on dwellings. However, he did not feel that the County could resolve the dwelling question during this process, but would have to be approached through marginal lands/small scale in the future. On partitions, he was concerned that the standards were too flexible and asked the staff to characterize this package as it would affect the largest commercial farms in the County. He asked if this package could result in the County's largest commercial farms being broken down into three parcels or minimum lot sizes in a decade or generation? Ms. Green said even tier 1 could create the problem Commissioner Throop had identified, because the large 500-600 acre ranches which were contiguously owned operations in even the biggest minimum subzone of Lower Bridge could potentially be divided down into two, three or four parcels. There was nothing in Goal 3 which required the County to maintain the largest parcels. In the 1000 Friends argument, they proposed that the County use the highest number in the subzone as the minimum lot size, which she felt would create a host of other problems for all the other farms. Commissioner Throop said he didn't feel the planning process contained "ultimate big fixes," and that if the County waited to pull all of the issues and solutions together, the long- range planning pipeline would become paralyzed and nothing would get done. He felt it was important, even though nobody was entirely satisfied with every element of this package, that the County move forward on this package. Ms. Green said if the package was changed significantly so that it deviated from the data base or in some other way didn't meet Goal 3, the worst case scenario was that the County could end up with some kind of enforcement order which might not result in the loss of funds but could require that each of the farm zone decisions be made by applying the goals. Each decision could then potentially result in litigation, and the clarity and certainty which this package would provide to private property owners would be gone. The County would be back to a system where they couldn't tell people the standards or what the outcome would be, and those decisions could take PAGE 8 MINUTES: 9-30-92 01-19-1172 up to a year because of the litigation. She didn't feel this was "blackmail" but a reality which the County had to consider. If the County did not develop a program which the DLCD could sign off on and recommend to the LCDC for signature, then the County would be placing a larger burden on property owners of EFU zoned lands than they were currently under. Chairman Maudlin said he was aware of the problems the staff had faced during this entire process, and that the secondary lands would be dealt with in the future. However, in 1985 the County paid over $120,000 for a soil study which was going to resolve all of these problems, and now it was almost 1993 and the problems were still not resolved and had grown. Ms. Green said the that since the County already had its soil maps and the data base provided by the OSU soil study, the County was "light years" ahead of almost all of the other counties in the State in adopting a small-scale resource program under the proposed rule. So while it may not have helped solve the particular problems the Board had with this package, it was invaluable for going to the next step (small-scale resources) since it would likely be tied directly to soils. Commissioner Schlangen said there had been a great deal of work done on this package, and she felt the County had supportable data. She didn't think it was the answer for all of the EFU problems in the County, however she felt it was the best package the County could propose at this time. The hobby and small farms would have to be dealt with at a later date. Commissioner Throop said he wanted to discuss Page 9, 18.16.065, concerning tiers for partitions. He felt there had been a quality debate before the Planning Commission on which tiers to use for partitions. There were two options preferred: tier 1 or tiers 1 and 2. He asked staff to discuss the advantages and disadvantages of those two approaches while emphasizing the certainty of the impacts, i.e. the likely number of additional parcels which would be created in the County. Mr. Read said Dr. Pease's data included a memo which outlined the potential build out in the County to be approximately 400 new parcels. Catherine Morrow had also submitted a memo dated August 12 regarding the number of potential nonfarm parcels which existed in the County or could be created. There were 474 vacant parcels with a potential to create 1,500 new nonfarm parcels with just the partitioning standard. The Planning Commission was divided on that issue based upon the existing number of lots and the potential number of lots under tier 1 and other options versus allowing maximum flexibility for the creation of new farm tracts. Ms. Green said the policy and legal question was clear cut, and it was the one PAGE 9 MINUTES: 9-30-92 0119-1173 the Planning Commission split on. The benefit of tier 1 was certainty since you would know exactly how many parcels could be created and everyone would know what the standards were and whether they could be met. The disadvantage of tier 1 was that it did not recognize the differences in scale and type of agriculture within the subzones which the County was allowed to recognize and continue under Goal 3. Using two tiers would allow that situation to be addressed. The significant disadvantage of using two tiers was that it would not be possible for the County to predict the potential number of partitions since it would entail a case-by-case analysis. There was also the issue of "creep" if the County allowed anything less than the median since eventually the data base median would shrink and an artificial lower median would be created. Commissioner Schlangen felt that was where the "floor" would come in, so that the "creep" would be prevented while allowing some flexibility to different types of agriculture in a subzone. Mr. Harrison reiterated that the greatest certainty was provided with tier 1 since staff could tell the Commissioners and the public how many new farm parcels could be created, and staff could tell applicants at the counter whether or not they could qualify for a division under tier 1. That couldn't happen under tier 2. Staff felt both tiers met the requirements of the law. There was a danger under tier 2 of the "domino" effect, meaning that if there was an anomalous area which contained farms that were smaller than the median, that over time the area would grow larger through increased partitioning. The way this concern was addressed was by identifying a "floor" which acted as a containment device to keep the area compact. This would assure that no matter what kind of land division could be authorized under tier 2, they still had to have a certain amount of irrigation available which was tied to the data base. The Planning Commission talked about "freezing the data base" and by that they were talking about the assessed farm use values. The County could normalize these assessed farm use values based on the annual farm use report from the Assessor's office. Therefore, under tier 2 the County could bring everything back to 1991 data which was the basis for the Pease report. These two techniques (placing a floor on irrigated acres and normalizing the assessed values to 1991) would, to the extent possible, reduce the "domino effect. Commissioner Throop asked what D.U. represented on Mr. Read's memo. Mr. Read said that was dwelling units. Commissioner Throop said this memo indicated there was an average of 2.08 people per dwelling unit in Deschutes County. Mr. Read said that was low because there were so many second homes and vacant homes in the County. Commissioner Throop said the memo indicated there were 35,915 dwelling units in the County now including cities. There were an estimated 8,726 buildable parcels which already existed in the RR -10 and MUA-10 zones. PAGE 10 MINUTES: 9-30-92 0119-1114 2,553 would be the maximum total number of vacant parcels in the EFU zone which could possible be buildable. Mr. Read said the noncommercial category consisted of the number of vacant parcels which were dropped out as part of the 10% which didn't contribute to the agricultural economy. Commissioner Throop said there were 327 existing commercial farm parcels in EFU zones in Deschutes County which were currently vacant. There were another 265 noncommercial parcels which had been dropped out of the pool that were also vacant. Under tier 1 there would be an additional 435 created. In the Forest zone, Mr. Read guessed there were fewer than 100 buildable parcels. In the destination resort zone there were 1,648 vacant existing lots. Then the rural service center zones had approximately 763 but that could vary greatly. Commissioner Throop felt these figures showed there were already a fair number of vacant parcels existing in the County. Mr. Read said on the last page it showed the present population estimate at 82,000, so subtracting the Bend, Redmond and Sisters urban areas, you were left with 37,700 people in the rural county today. If all of the existing parcels were built on, the total maximum population in the rural county would increase 30,000 without tier 2. Commissioner Throop stated again that he felt the proposed package was too loose on partitions but also too rigid on dwellings. The rigidity on dwellings couldn't be addressed in this package, and he thought it was not worth fighting to resolve that issue now. He felt it would be valuable to the citizens of the County to have some certainty on the possible number of parcels being created. THROOP: I'd like to move that the County Commission embrace in concept tier 1 only for partitions and exclude tier 2 for partitions. SCHLANGEN: I'll second it for discussion. Commissioner Throop said rural residential and MUA zones were already committed exceptions for small-scale agricultural opportunities in the County. There were 8,726 parcels which already existed which could potentially be built upon for rural residential use. There were also 1,000 existing parcels in the EFU zone which could be built upon under the proper criteria through tier 1. There were approximately 750 in rural service centers as well as more than 1,600 in destination resorts and a few in the forest zone. Therefore, he felt there was an adequate number of vacant parcels outside the urban growth boundaries for rural residential and other kinds of residential uses. He felt it would be counter productive for the County be as flexible on partitions as tier 2 would allow. PAGE 11 MINUTES: 9-30-92 0119-11,5 Commissioner Schlangen said she also liked the certainty of tier 1, however she was concerned for the type of agriculture being used. With tier 2 there was greater flexibility to recognize the different scales and type of agriculture in each of the subzones. She felt there were adequate protections with the floor and the Assessor's data and didn't feel there would be "creep." Chairman Maudlin said these 8,000 potential parcels which could be built on were mostly in the LaPine area where no one was racing to buy them. He said there would be more real farm land lost to commercial and industrial use in Clackamas, Washington and Marion Counties in the next six months, than the total amount of farm land in Deschutes County. The study concerned farm land for farm use, and many people felt there wasn't much real farm land in Deschutes County. He thought property owners needed some flexibility in what they could do with their land and where they could live. VOTE: THROOP: YES SCHLANGEN: NO MAUDLIN: NO Commissioner Throop said he was ready to move approval of the package, since he was comfortable with all other elements of the package. Commissioner Schlangen still wanted to put back into the draft the description of Deschutes County farming. She felt the limitations on agriculture from Dr. Pease's report was important and needed to be included or at least return the third paragraph which had been deleted. She said Chairman Maudlin had talked about the loss of good agricultural land which would be under buildings in the valley, while Deschutes County had marginal lands which people were working hard to make into some sort of agriculture use. Karen Green asked if the Board had a preference on whether to reinstate the deleted language or use the limitation statement from Dr. Pease's report? Bruce White pointed out that the County needed to be able to show how they arrived at the agricultural base to start with. Since it started with the existing comprehensive plan definition and designation of agricultural lands which came out of the 1979 Comprehensive Plan, he felt it was important that the description of the process which lead up to the 1979 plan not be entirely eliminated. Also many of the concerns expressed by Commissioner Schlangen were also in that language. He felt the language could be summarized since some of the language was no longer applicable. There was a definition of agricultural land on page 3 which was being proposed to be deleted, and he felt it needed to be retained because it did help form the basis for the map which outlined the general EFU lands in the County. Karen Green summarized PAGE 12 MINUTES: 9-30-92 0119-1176 that the direction from the Board was to work with Mr. White on what aspects of the existing policy statement needed to be retained or kept in some form, and then either embellish this third paragraph or somehow make clear in the statement the limitations, using this statement or a summary of Dr. Pease's statement. Commissioner Schlangen said that summarization was correct, and that otherwise she was satisfied with the package. George Read said staff had not had an opportunity to go through some of the comments with a "fine tooth comb," and if they ran across something which might be deficient, they would want to supplement the record at some point. Also it needed to be clear for the record that Dr. Pease was an expert and in using his methodology, he felt the Board was relying on methodology from an expert in the field while some of the criticism came from people with less knowledge in this area. Commissioner Schlangen said she didn't feel there was "data out there" that wasn't uncovered. She felt Dr. Pease and everyone involved did an excellent job and that should be in the findings too. George Read said there were extensive minutes on these issues, however he wasn't sure how Dr. Pease's analysis of some of the criticism would be introduced, i.e. as supplemental data. Ms. Green said the staff was asking the Board today was conceptual approval of the package with its key components, recognizing that there would be additional work needed to put the ordinances and plan policies together. A lengthy critique had been received from 1000 Friends right before the public hearing, however after reviewing it, the staff felt there was criticism in it which needed to be addressed --not because it was valid criticism, but because it needed to be addressed more thoroughly than had already been done. They wanted to ask Dr. Pease to assist the County in making the response to the 1000 Friends criticism. She didn't think the substance of anything the Board would adopt today would change, but rather the type and level of documentation would change. They might need to open the record to put something else in from Dr. Pease to help the County address 1000 Friends' critique, and they needed to work with legal counsel to fine tune ordinance language. Commissioner Throop asked if the Board was not unanimous in its decision, when the final documents would be prepared for signature? Ms. Green said if the vote was not unanimous, there wouldn't be an emergency clause and the effective date would be 90 days from the date of signature. In light of the 1000 Friends document and the time required to respond to it, she guessed the package wouldn't be available until the end of October for the Board's review and fine tuning. She said the data to respond to the 1000 Friends critique was already in PAGE 13 MINUTES: 9-30-92 01-19-1177 the record, but the staff might not have listed it or identified it as clearly as it could have been or perhaps not at all. Therefore, they wanted to beef up the documentation and justification. Commissioner Throop asked if this schedule would meet the timelines agreed upon with DLCD. Ms. Green said the County's commitment was to adopt a revision to our EFU zones and comprehensive plan policies to meet Goal 3 by September 30, 1992. If the Board adopted the program in concept today, the County would have met that deadline. It had been contemplated that the signed written documents would follow later. She felt the package could go to DLCD in November and possibly be placed before the LCDC in December or later. Mr. Read said this farm package would be submitted with the entire periodic review package. This would be a huge volume of data which would take a considerable amount of time for the DLCD staff to review, so he didn't feel Deschutes County's package would come before the LCDC for several months. Chairman Maudlin said Planning Commission recommendation #5 said that over 2,000 tax lots were zoned EFU but were not receiving special assessment. They recommended that these nonfarm tax accounts be permitted to partition land and create up to two new nonfarm parcels. He asked what had resulted from that recommendation. Mr. Read said that since he had worked for the County, there had been a policy that the County would not allow nonfarm subdivisions according to the plan, and none had been done in that time. This was not a policy change, but clarified the minimum lot size for nonfarm parcels. Bruce White said he'd also like to address the interrelationship with the Smith v. Clackamas County case. There had been a County policy which provided for flexibility for farmers selling off isolated individual parcels which were not productive. It appeared the Smith case would no longer allow this, so he was recommending that this language be kept in the policies adding that it would be allowed to the maximum extent allowed by state law. Then if state law changed, the County would receive the benefit immediately. Ms. Green said there would be a bill in the next legislative session to overrule the Smith decision. So the language suggested by Mr. White would allow the County to implement that law, if passed, as soon as it became effective without having to amend the County plan. SCHLANGEN: So the motion is to adopt the package in concept. So moved. THROOP: I'll second the motion. PAGE 14 MINUTES: 9-30-92 0119-111-418 Commissioner Throop said most of the large farms in Deschutes County had already been partitioned, so he felt strongly that there was little need for further partitioning. He felt this package posed some risks for the County's EFU zones in that some of the few remaining larger parcels could be divided further. However, under the law and the constraints here, he didn't see any other course of action to follow. He felt the dwelling issue was the most important in this package, and that requiring a commercial farm to be in operation prior to being able to get a farm dwelling in an EFU zone was too restrictive. However, he felt there was nothing that could be done about it in this package. This package was not a ultimate solution, but the County needed to seize this opportunity to move the program forward. He commended the advisory committee, the Planning Commission and the 100's of citizens who had participated in this process, because he felt this was the best possible package that could have been crafted. He thanked the County's Planning staff and stated they were the best planning staff in the entire state of Oregon. Commissioner Schlangen agreed that the staff had done an excellent job, and she felt this package was defensible and met Goal 3. She thought the County needed to go ahead with passage of this package even though there were some problems, since most could be addressed later. Chairman Maudlin also thanked the staff and said they did an excellent job given the constraints the County was under from the State. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: NO Chairman Maudlin recessed the meeting until 4 p.m. Chairman Maudlin reconvened the meeting at 4 p.m. Board members in attendance were: Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Rick Isham, County Counsel; Bruce White, Assistant County Counsel; Susie Penhollow, County Clerk; Mike Maier, County Administrator; and Brad Chalfant, Property Manger. 11. ORDER 92-112 CONCERNING FALL RIVER ESTATES SPECIAL ROAD DISTRICT Bruce White said the Board had held a hearing on the formation of the Fall River Estates Special Road District on June 17, 1992. The Board then ordered that formation of this district be placed on the ballot for an election, however, because of a miscommunication, the notice of measure election was PAGE 15 MINUTES: 9-30-92 ®1.19-1114 inadvertently never filed with the County Clerk and the deadline was September 3, 1992. If this issue did not appear on the November ballot, it couldn't be put on a ballot until May of 1994. This was an important issue for the people in this proposed district since they had a bridge which was in questionable condition. He was asking that the Board order the Clerk to place the measure on the ballot "and then see whether she does." Rick Isham said that if the Clerk was ordered by the Board to place the issue on the ballot and she refused, he felt County Counsel would not be able to represent anyone in attendance at this meeting. Bruce White said he had spoken with County Counsel from Washington and Yamhill Counties who had been in situations where the notice of measure election had been wrong or contained information which was incorrect. When their election official declined to make a change, they sued themselves and got an order from a friendly judge ordering the Clerk to place it on the ballot. If the Clerk agreed to place this issue on the ballot, the Board would not have to deal with this situation, however the County might face a challenge later on concerning alleged procedural irregularities. Commissioner Schlangen asked where a challenge might come from. Chairman Maudlin said it would come from the anyone who voted against formation of the district. Commissioner Throop pointed out that the circumstances outline in the other counties were different from this situation, and asked on what basis a judge could order the County Clerk to place something on the ballot that hadn't already been placed on the ballot. Mr. White said there was a statute which said that after the Board received the petition and decided to approve it, that it "shall appear on the next ballot for which the deadline can be met." The deadline could have been met in this case, however it was not. He pointed out that this was not a last-minute measure which had not been contemplated, and there was still time for a notice to placed in the paper so that a ballot title challenge could be made. He felt these factors would weigh heavily towards putting the issue on the ballot, and thought it might be characterized as a technicality. Commissioner Throop asked if there was any procedure in the law which would allow going to Circuit Court and asking for a declaratory judgement. Mr. Isham said he'd had one case like this before concerning a notice issue, however even though the City Recorder had failed to publish the notice timely, he was able to sue everybody in the district through a substituted service. He published notice in the paper and held a hearing PAGE 16 MINUTES: 9-30-92 01.19-1180 in court, and then the court could certify an election result. He knew that the County Clerk felt that this situation was a little bit different. There had also been intervening changes in the law since that case. Mr. Isham said his first inclination when he heard about this issue, was to call an emergency election on the same date because an emergency election had a shorter time frame. The fact that there was a different time frame for an emergency election, seemed to indicate that there were exceptions to the state mandated periods for publication. However, the statute for emergency elections said the election had to be held "on a date other than" one of the six election dates. Commissioner Throop asked about a vote by mail. Mr. Isham said that couldn't be done because a tax base vote had to be done at a primary or general election. Chairman Maudlin asked Susie Penhollow if the Board ordered her to place this issue on the November ballot, would she do so if the Board accepted the blame in case of a challenge. Ms. Penhollow said she had called other counties and the Secretary of State's Office, and the law was specific on the filing deadlines. It stated that she could not accept a document later than 5 p.m. on the filing deadline, which was September 3. She said she had no legal authority to place it on the ballot, and she didn't know whether the Board had the legal authority to place it on the ballot. However she thought the Court had that authority. Therefore, if the Board sued her to place the issue on the ballot, it would be a clean way of doing it, and she felt it would be a "friendly lawsuit." She felt terrible about these people not being able to vote on this important issue, but after reviewing the statute and discussing it with other counties, she was sure she didn't have the authority to put it on the ballot. The only way she felt she would have the authority would be if a judge ordered her to. The Secretary of State's office would not give her an opinion in writing, however they felt there was not proper notice. She was concerned that if the Commissioners ordered her to place this issue on the ballot and she did, it would set a precedent for others, i.e. school districts, to ask the Commissioners to order her to place their issues on the ballot if they were late on the filing deadline. Chairman Maudlin asked if she would feel differently if the Board agreed to take the heat and throw it out if there was a challenge. Bruce White didn't know whether the Board would have the authority to remove the issue from the ballot once it had been placed on the ballot. Ms. Penhollow agreed. Bruce White said that in Washington County, they had a situation where their election official wasn't going to make a change, so they went to one of the Circuit Court judges and PAGE 17 MINUTES: 9-30-92 0119-1181 filed a lawsuit. They asked for an expedited hearing and served the County Clerk. Rick Isham said he didn't think there was time to file a lawsuit. Ms. Penhollow felt there was time because she could put this issue on a paper ballot since there were only 49 people in the district, and in lieu of publishing the ballot in the paper, she could send it to each individual elector in the district. She said that would comply with the notice requirement. Rick Isham asked if any of those 49 people had requested an absentee ballot, and she said no ballots had been given out to this precinct. If there had been one, she could have sent them a supplemental ballot, like they had done before. Mr. White felt another issue was whether anyone on the Board of County Commissioners had standing to sue since it might have to be the chief petitioner or someone from the district. Commissioner Schlangen felt that since the Board had issued an order sending the issue for a November election, that the Board should have standing. Ms. Penhollow said she wanted to put the issue on the ballot, however in order to have a clean why of doing it, she needed an order from a judge. Mr. Isham pointed out that since the district had not been formed yet, it was the County's election. Mr. White said there was case law where deficiencies in notice were not viewed as a problem and were overcome judicially. He felt it would be best for the Board to sign a final order to place the measure on the November election which would include the Notice of County Measure Election regardless of which way the Board proceeded. He gave a draft order to the Board for their review. Commissioner Throop said he wanted to proceed as discussed: (1) the Board would sign an order directing the County Clerk to place the issue on the November ballot, (2) if she refused, legal counsel would prepare a friendly lawsuit. Rick Isham didn't feel it would get on the ballot this way. The judge might just say that he couldn't order the Clerk to place it on the ballot because the statute said she wasn't supposed to. He didn't have any idea what the basis for a lawsuit would be in this situation. Ms. Penhollow said if there was a way that she could accept this item and not be in violation of the law, she would do it right now. Chairman Maudlin suggested she just place it on the ballot and see what happened. Ms. Penhollow felt that would be breaking the law. Mr. White said he would prepare an order which would help support a lawsuit and asked that the Board vote to adopt that order at this meeting. PAGE 18 MINUTES: 9-30-92 0'.19-118`' SCHLANGEN: I move that we adopt Order 92-112. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 12. GOLF COURSE AND JAIL BONDS Rick Isham and the Board had previously discussed issuing $4 million in golf course bonds and $4 million in jail bonds this year. In a meeting with Golf Services in Portland, it was determined that nothing could happen on the County golf course project until the permits were actually issued, i.e. no bond could be issued. There were two permits needed --a BLM permit and a land use planning permit. If the BLM process were started today, the County would probably not have the lease to use the land until March of 1993. The County permits could be applied for in the interim period. Mr. Isham suggested issuing $7 million of the jail bonds this fall, and then the remainder of the issue would be next year. There would be a preferential credit rating on it because it was bank eligible, and it looked like the rate now would be "right around 5%." He said some first year coupons which were just issued closed at 2.8 %, there fore right now was a very favorable time. There would be an extended first coupon so that the County would have taxes levied when the first interest payment had to be paid. Since that conflicted with what he had previously discussed with the Board, he wanted to make sure this was satisfactory with the Board. The remainder of the jail bonds would probably be issued next summer. $1 million in bond anticipation notes had already been issued which might not be redeemed until next May when the County would know the exact costs. He asked Mike Maier, County Administrator, if he agreed that the County should go ahead and issue the jail bonds this year. Mr. Maier said there were some other concerns about proceeding with the golf course that had to be resolved before the County could even consider issuing bonds. Therefore, he agreed that the golf course should not hold up issuance of the jail bonds. Mr. Isham said he would go forward with the sale of jail bonds probably in November. Mr. Maier asked if there was an advantage to having the sale prior to the presidential election. Mr. Isham said that about 100 days after the election there would be a stagnant market, and then it would become unpredictable. He said he would prepare a resolution concerning the bond sale for the Board's signature. Commissioners Schlangen and Throop requested that they have a weekly update meeting with Greg Brown concerning the new jail construction which was scheduled for 9:30 a.m. every Monday. PAGE 19 MINUTES: 9-30-92 3 DATED this --� day of Commissioners of Deschutes Count y, Oregbn, 1992, by the Board of . TE T: Recording Secretary PAGE 20 MINUTES: 9-30-92 Tom Throop, ommissioner