Loading...
1993-32211-Minutes for Meeting November 25,1992 Recorded 12/16/19921, 93-32211 92-42804 MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONED -`lt '�� November 25, 1992 Chairman Maudlin called the meeting to order at 9:3(6`,i 4. -a-' rd p members in attendance were: Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Bruce White, Assistant County Counsel; George Read, Planning Director; Dave Leslie, Planner; Kevin Harrison, Planner; Brian Harrington, Planner; Mardell Ahrens, Public Works; and Larry Rice, Public Works Director. 1. CONSENT AGENDA 2. cKEY Pg, S 196, Consent agenda items before the Board were: #1, signature of Warranty Deed for right of way on Ward Road; #2, signature of Resolution 92-090 accepting petition to vacate portion of Ferguson Road, Engineer's Report, and Order 92-133 setting a public hearing for January 6, 1993; #3, approval of request for waiver of landfill fees for disposal of Christmas trees as part of fundraising event; #4, signature of Agreement with DHR (#92101) providing child care reimbursement for clients in alcohol and drug programs; #5, signature of MP -92-51 dividing a 2.06 acre parcel in half in an R-2 Zone on Umatilla Avenue in the Redmond UGB; #6, chair signature of Liquor License Application for The Brand Dinner House in Redmond; #7, approval of out-of-state travel request from Community Corrections; and #8, tax refund Order 92-134 was postponed one week. SCHLANGEN: I move approval of consent agenda. THROOP: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES WILLBROS SITE PLAN FOR PIPELINE PROJECT STAGING AREA Before the Board was approval of an application from Willbros Energy Services Company for a similar use ruling and a temporary use permit application for a construction staging area at Knott Pit. Dave Leslie submitted some draft findings to the Board concerning the Willbros Energy application. He said it was clear that the staging area under similar use criteria (a.) was not listed specifically in any zone in the County for the sum total of the activities proposed, i.e. office trailers, fueling activities, employee parking, etc. Under (b.) the Board had to find that the use was similar in character, AGE 1INUTES: 11/25/92 On September 15, 1993 this document was Re-recorded to correct duplicate book and page number previously recorded 12/16/92 book 120 page 359. +( NCHED Y �. 012'7-1909 0.11-210-0360 scale, impact and performance to one of the permitted uses or conditional uses listed. He said information had been presented which would allow the County to make the finding that construction activity along the pipeline was similar to some of the activities associated with the staging area. He had tried to analyze and compare this activity with some current surface mining operations with respect to employee numbers and truck traffic at Bend Aggregate and Deschutes Ready Mix. He felt the Board could conclude that this activity would be similar in character and size, etc. He wanted to point out that the reason this was a draft decision was because of some additional impacts for which findings were necessary which would deal with hours of operation and parking on site. The applicant had submitted additional information indicating there would be no heavy equipment operation before 7 a.m or after 10 p.m., however there would be employees traveling to and from the site on a public road which was not prohibited. The applicant proposed to use the site through September, however the peak activity would be much earlier in the year. The maximum number of employees would be 500 and that would occur between February and May of 1993. There would be very little activity after the High Desert Middle School opened in September, since they would only be closing down the site. Mr. Leslie said the applicant had submitted information on their Federal Energy Regulatory Commission (FERC) approval. The FERC letter discussed the whole Deschutes County area not just this staging site. The FERC letter did point out some concerns in other areas which were not necessarily under the responsibility of this subcontractor (Willbros Energy). He contacted FERC staff and they said the irregularities were primarily relating to construction of the pipeline. In other areas in the State of Oregon there had been construction across rivers, temporary problems with lack of erosion control, and problems relating to cultural resource protection. There were also some minor problems relating to fuel and chemical spills and improper storage of same. For that reason, he recommended a condition of approval which would require the applicant to inform the County of any compliance problems brought to their attention by FERC immediately. He had also contacted Gilliam County, and their experience had not been "altogether positive." However, that was not necessarily a problem with the construction staging area, but with the overall pipeline construction project. Gilliam County said they had had major impacts to their road system and were now trying to "recoup money to make repairs." Sherman County had offered to assist by not allowing construction on the pipeline in their County until the expenses and concerns of Gilliam County had been satisfied by PGT. The first condition he recommended was that the temporary use approval be void if the lease agreement with PAGE 2 MINUTES: 11/25/92 0127-1910 0A" 00�-Q?sl Deschutes County was not entered into. There were also some outstanding issues concerning environmental compliance which had held up the signing of the lease agreement. He understood that the County would require that the applicant provide a post -construction review of the site to insure that there were no spills of fuels or chemicals or other hazardous substances. Chairman Maudlin asked if that was also a DEQ requirement. Mr. White said it was a DEQ requirement that the owner or operator be responsible, so it was a question of allocating responsibility between Deschutes County as the owner and Willbros Energy/PGT/Bechtel as the operator. The County's concern was that a baseline of data be established from the beginning indicating the site was clean, so that if anything happened during the period of the lease, the operator/ lessee, not the County, would be responsible. Mr. Leslie said concerning the temporary use permit issues, draft findings had been outlined for the Board which supported that this application would meet the criteria required for issuance of a temporary use permit. The temporary use permit contained several conditions to which the applicant would agree to by signing the permit. In addition, he recommended that conditions A through G, and any others the Board would want, be attached as Exhibit B to that temporary use permit. Any change in use or expansion of use would require an additional application to the County. Bruce White asked whether there would be a hearing on the application. Mr. Leslie said the Hearings Officer had agreed to hold a special hearing on Monday, December 14, 1992. County staff would provide notice of the Board's decision on the temporary use permit and of the hearing on the underlying site plan application. It was staff's recommendation that the applicant be required to pay the $500 fee for the Hearings Officer to hold that public hearing. He said the temporary approval was valid until a six-month period runs or the underlying application was final. If it was denied by the Hearing Officer, the applicant would be able to appeal to the Board of Commissioners, and their temporary use permit would be in effect until the application was denied or approved on that appeal. Bruce White asked if there was a need for a condition on hours of operation. Mr. Leslie said it was already required that the applicant conform with the language in the ordinance, and the applicant had indicated they could conform to those standards. Chairman Maudlin said he had had several discussions with people from Jefferson County, and they had only good things to say about the pipeline construction as it went through their County. Mr. Leslie said he had received positive comments from Jefferson County also. Chairman Maudlin asked whether they had received a DEQ permit for the site. Mr. Leslie said the applicant didn't have a DEQ permit. He understood that a PAGE 3 MINUTES: 11/25/92 0127,-1911 01 20-0362 contract would be let for the placement of the storage tanks and the construction of the holding area beneath and around those tanks. It would then be the responsibility of that contractor to meet all of the legal requirements including DEQ. Chairman Maudlin said he would like the County to find out from DEQ what the requirements for this site would be, so that the County could do its own verification that the requirements were being met. Bob Lovlien, attorney for Bechtel/Willbros, said he had been working for them since they perceived a problem getting County permits to use the proposed site. He said Willbros was not the contractor on those stages north of Redmond. They had been the contractor in Klamath County, and suggested they be contacted with any questions regarding Willbros. He also noted that in Klamath County, Willbros did not need any approvals from the County for their staging areas. He showed the Board a schedule for the pipeline indicating the need to move quickly so that the pipeline would have the least impact on the wildlife migrations and deer winter ranges. Another limiting factor was that the union contract required that the staging area be within three miles of a city. That meant either Redmond or Bend. Since the mid -point of this construction project was about Sunriver Road, a Bend location was preferred. Also the pipeline ran very close to the proposed staging site. They felt this phase was the most sensitive in the entire project (from British Columbia and into California) because of the proximity to the Bend Urban Area. He mentioned that they did have a town hall meeting about a week ago and fully explained the project and the anticipated problems. They felt the meeting went very well, and the traffic was not one of the issues raised as a concern. Everyone had a positive attitude and appreciated the information. They had looked at other possible site, however they were unable to find any industrial property which would have less of an impact than the proposed site. He pointed out that 27th Street would be the primary access route for this pipeline project through the urban area regardless of where the construction staging area was located. In preparing the documentation for the similar use ruling, they looked at other uses in surface mining zones which were similar. They felt the Bend Aggregate and R.L. Coats operations were the most similar, however those operations had 200-300 trucks a day coming and going. Willbros would not need anywhere near that kind of impact. At the maximum during the period from January through April, there would be about 500 employees on the pipeline project. The maximum number of cars which would be utilizing the construction staging area was 200. The welders and mechanics would use their own vehicles. The contractor would provide transportation for the pipe crews and for some of the ditching crews. They would park at the staging area and then be moved to the construction site in buses over a PAGE 4 MINUTES: 11/25/92 0127--1912 0"'_00-0363 period of 120 days. Next summer, construction would be essentially completed, and there would be minimum activity on the site by the time the middle school would open. There would be no heavy construction equipment on the site. It would be coming from Klamath Falls and would go directly to the pipeline sites. They would be moved to the next construction site by truck or rail. Mr. Lovlien said concerning the lease, that Willbros understood that any hazardous waste deposited onto this site was their responsibility. The problem had been with their general counsel in Tulsa, Oklahoma who was concerned about leasing a site next to a land fill and then having to take responsibility for what might already be on this site. He felt acceptable language could be worked out with the County. The other issue was the County recognizing that there would be hazardous materials stored on this site. The Federal government didn't recognize petroleum products as being hazardous waste material, however the State of Oregon did. He felt that this could also be worked out in the lease. Commissioner Throop felt that this was a "great project for Deschutes County -- for the entire county" and definitely was the direction to go for an energy policy. However, the County had been caught by surprise when no land use applications were applied for and activity was occurring on the site before a lease had been signed. He asked Mr. Lovlien if he had had a chance to review the draft decision document prepared by Mr. Leslie. Mr. Lovlien said he had reviewed and discussed it with Mr. Leslie over the last few days. Mr. Throop asked if he saw any problems with Willbros being able to agree to and implement any of the conditions? Mr. Lovlien said "no." THROOP: I'll move approval subject to the conditions described and outlined. SCHLANGEN: I'll second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 3. PUBLIC HEARING: ORDINANCE 92-066 AMENDING ZONING ORDINANCE REGARDING LANDFILLS Before the Board was a public hearing on Ordinance 92-066 amending the Deschutes County Zoning Ordinance to define Land Disposal Sites, Disposal Sites, Resource Recovery and Solid Waste; to add Land Disposal Sites as a use permitted outright in the surface mining (SM) zone; and to add Disposal Sites as a Conditional Use at existing Land Disposal Sites in the SM zone. PAGE 5 MINUTES: 11/25/92 4. 012'7-1913 0120-- 0q?64 Dave Leslie said this ordinance was necessary in order to deal with landfill, transfer station, and recycling center operations at three of the County's sites (Negus, Fryrear, and Knott). This ordinance would allow the existing landfills which had a valid DEQ permit on the effective date of this ordinance to become an Outright Permitted Use in the SM Zone, and that the development of a transfer station, recycling center and related resource recovery facilities at existing landfills to become a Conditional Use Permitted in the SM Zone. Adoption of this ordinance would allow the County Public Works Department to submit a conditional use application for the recycling and transfer station operations at Negus Landfill. Chairman Maudlin opened the public hearing. There being no one who wished to testify, the public hearing was closed. MAUDLIN: Entertain a motion for first and second reading by title only. SCHLANGEN: So moved. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-066 by title only. SCHLANGEN: Move adoption. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PROJECT COMPLETION REPORT FOR THE LAPINE SEWER STUDY Before the Board was Chair signature of the Oregon Community Development Block Grant Program Project Completion Report and Certification for the LaPine Sewer Facilities Plan Update. THROOP: I'll move chair signature. SCHLANGEN; Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 6 MINUTES: 11/25/92 5. V 7. 0127-1914 0*'.20-0105 MEMORANDUM OF UNDERSTANDING CONCERNING REGIONAL STRATEGIES Before the Board was Chair signature of a Memorandum of Understanding with the State of Oregon Economic Development Department concerning the County's regional economic development strategy. The following projects were designated contracting entities for the purposes of this Memorandum of Understanding: (1) the Oregon Innovation Center at $455,000, (2) Weitech, Inc. for the Sisters Incubator at $50,000, and (3) Central Oregon Intergovernmental Council for strategy implementation assistance at $8,612. MAUDLIN: We need a motion for signature of the Memorandum of Understanding. SCHLANGEN: So moved. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES ACCOUNTS PAYABLE VOUCHERS Before the Board was approval of two batches of accounts payable vouchers in the amount of $137,215.32 and $17,853.10. SCHLANGEN: Move approval upon review. THROOP: Second the motion. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES REQUEST FOR TRAINING FROM PUBLIC WORKS Chairman Maudlin said he had requested that this item be placed on the agenda because First Aid/CPR training was being requested for every employee of the Public Works Department, and he felt that wasn't necessary. Mardell Ahrens said they had worked with OSHA and Mike Viegas, County Risk Manager, regarding the OSHA requirements of having a trained worker on site. It was determined that "on site" meant if there were two surveyors out surveying, that would be their work site; if there was only one landfill attendant, he/she would have to be trained. If there were three office staff left in the office and two went to lunch, the third had to be trained. Therefore the only way they could find to comply with OSHA regulations was to train everybody. She said there had been situations in the past when the person who was posted was not available. PAGE 7 MINUTES: 11/25/92 012'7-1915 01.200-0266 They wanted to make sure that they did not get fined by OSHA but also wanted to provide a safe work environment for the employees. Also since the County was self insured, this was a relatively inexpensive way to assure that the County would meet the liability requirements should there be an accident. She said the class was seven hours (four on first aid and three on CPR), and the CPR training had to be taken annually while the first aid training was good for three years. Since the County would be making this a job requirement, the training would be on County -paid time. Chairman Maudlin felt that training every member of the staff was "overkill" since there were many situations where staff members were on their own, and "they couldn't give themselves CPR." THROOP: I'll move approval of the training request. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: NO 8. ORDINANCES 92-060 AND 92-061 AMENDING AND CODIFYING COMPREHENSIVE PLAN MAP George Read showed the Board the final mylar for these ordinances. He said there had been no other changes since the previous discussions of these ordinances. THROOP: I'll move first and second reading by title only of Ordinances 92-060 and 92-061. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-060 by title only. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES PAGE 8 MINUTES: 11/25/92 012'7-1916 01-20-0 67 Chairman Maudlin performed the first and second readings of ordinance 92-061 by title only. SCHLANGEN: Move adoption. THROOP: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 9. FARM PACKAGE ORDINANCES 92-062, 92-063, 92-064 AND 92-065 Chairman Maudlin said there had already been extensive discussion of these ordinances at previous meetings. Kevin Harrison said that on Ordinance 92-062, page 10, policy #13, the prohibition against nonfarm subdivisions would become effective on adoption of these ordinances. The same reference was made on Ordinance 92-065 on page 9 (b). Bruce White asked whether all of the changes which had been made since the public hearing on this matter had been discussed with the Board at a work session. Mr. Harrison said they had all been discussed with the Board. Bruce White said in Ordinance 92-063, on page 20 there would be a map (which he passed out) of the subzones which would be part of the resource element. Other items which the Board had not seen prior to this meeting were pages 37-90 which listed all of the farm tracts which were considered as part of the data base. The reason why these were included as part of the resource element was to freeze the data base under Tier 2 at the time of adoption. Kevin Harrison said for most of the subzones the radius was 1/2 mile. He said anyone would be able to look at the resource element and identify the properties which would fall within the radius under Tier 2. Commissioner Schlangen asked how the selling of water rights would change the data? Kevin Harrison said the data base was fixed as established in 1991 and would not be updated until the next periodic review. Commissioner Schlangen asked how these ordinances would affect "small-scale." George Read said that was a very difficult question to answer. The small-scale resource package was tentatively adopted by LCDC last Thursday. He said there was one issue which might come up which had to do with what contributed to commercial agriculture in the County. The County had set a threshold at those tracts which were not capable of producing a sum total of 10%, and there were over 700 parcels which were dropped out because of that threshold. One of the tests for a "small- scale resource" was those tracts which didn't contribute to the commercial agricultural economy, and the state set that at $10,000 with an option to go up as high as $20,000. Since the PAGE 9 MINUTES: 11/25/92 0'^ Qmwpli -0?E County set its threshold lower than the state's, the County may have to go back and reevaluate what does contribute. 1,000 Friends of Oregon had already made an argument in opposition to the County's package stating that the County set the threshold too low. He felt that when the County went through small-scale resource, it would have "to start from scratch" and really evaluate the rule thoroughly to figure out how to determine "what is small-scale resource land." The proposal which was tentatively adopted required a technical committee to be established to do that in the initial phases. Chairman Maudlin said he was going to vote in favor of this package, however he was still concerned about the language which would require more water rights on parcels than there were acres in the parcel, i.e. the EFU-20 zone. He felt the County would be better served by having these ordinances in effect. Bruce White pointed out that the Board would also have to sign the map with Ordinance 92-064. On Ordinance 92-065 he said the provision on the prohibition on further division of nonfarm parcels was talking about parcels as they existed on the effective date of this ordinance. Anything in the partition ordinance which might be read to the contrary would be overridden by the adoption of these ordinances. THROOP: I'll move first and second reading by title only of the ordinances with the emergency clause and setting an effective date of Monday, December 7, 1992. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-062 by title only with the emergency clause. He clarified that on each of these ordinances, an effective date of December 7, 1992, would be added. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-063 by title only with the emergency clause. PAGE 10 MINUTES: 11/25/92 THROOP: Move adoption. 0127--1918 SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-064 by title only with the emergency clause. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-065 by title only with the emergency clause. THROOP: Move adoption. SCHLANGEN: Second. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 10. PUBLIC HEARING ON THE SMIRNOV APPEAL OF DENIAL OF CONDITIONAL USE PERMIT FOR NONFARM DWELLING Before the Board was a public hearing on the Smirnov appeal of the Hearings Officer's denial of a conditional use permit to establish a nonfarm dwelling on a 10 -acre parcel zoned EFU-20. Brian Harrington said the subject property was located at 66265 Gerking Market Road north of Highway 20 and contained approximately 10 acres. The parcel was receiving farm deferral and had two structures on it. The applicant had indicated the parcel had 5.5 acres of irrigation rights, however when staff visited the site there was no irrigation delivery system evident. The topography sloped gently in elevation to the west, and the parcel contained 5-6 acres of cleared pasture in the east. The west portion contained a rocky slope covered in juniper trees and sage brush. The application was submitted on April 21, 1992, to allow a nonfarm dwelling on the property, and was scheduled to be reviewed administratively. On June 2, 1992, staff sent a letter to the applicants outlining the deficiencies in the record to meeting the criterion. Notice was sent on the same PAGE 11 MINUTES: 11/25/92 012'7p O�_^0-- t _;4R date that the application would be scheduled for a public hearing before the Hearings Officer on July 21, 1992. The staff recommended denial of the application and on September 14, 1992 the Hearings Officer issued a decision of denial for the nonfarm dwelling. On September 24, the applicant appealed that decision. Mr. Harrington said the basic decision before the Board was whether the proposed nonfarm dwelling would be situated on land generally considered unsuitable for the production of farm crops or livestock. This lot was less than the minimum lot size. When the only consideration that would preclude productive agricultural use of the parcel was its small size, staff was directed to look at a LUBA court case --Stephen v. Yamhill County. LUBA ruled in this case that a small parcel's size alone was insufficient justification for the granting of a nonfarm dwelling unless evidence showed that the parcel could not be sold, leased, or otherwise put to profitable agricultural use. In this case, there was evidence of an offer submitted in the record by the adjacent property owner to the north (Laura Jaap-Vollstedt). If a valid and binding offer was not made, the Board could reverse the Hearings Officer's decision and adopt findings to approve this application based on the fact that this parcel could not be combined with other parcels. He said there was a question of what would constitute a valid, binding offer which should be addressed at this hearing. Chairman Maudlin asked if the decision before the Board was whether there was a valid and binding offer, and whether this parcel could be combined with another parcel even if there was a valid and binding offer? Commissioner Throop asked what he meant by the second part of his question, and Chairman Maudlin said there was the question of whether these two parcels could be joined since there was a ditch and water delivery system separating them. Mr. Harrington said that issue would be one component of the Board's decision. Bruce White said the question was "if the sole reason for finding it to be unsuitable is due to its size, then the Board has to consider whether in fact it could be consolidated with other parcels." He asked whether it was the conclusion of the Hearings Officer that the soils and other capabilities of the property made it suitable, and that the only reason it was not suitable was its size? Mr. Harrington said "that was part of it" since it had class three soils. Bruce White said the "suitability" criterion was a difficult one to meet if it appeared the parcel was capable of growing crops or grazing livestock, and it appeared from the record that the only issue the Hearings Officer had was the parcel's size. Therefore, he had to deal with the question of whether the parcel could be PAGE 12 MINUTES: 11/25/92 012'7-1929 combined with other parcels. Mr. White said he didn't know whether it was relevant that there were willing purchasers. Chairman Maudlin opened the public hearing and asked for testimony. Greg Hendrix, 716 NW Harriman, Bend, attorney for the applicants Mike and Linda Smirnov, said the applicants had the f lu and were unable to attend. They had sent him a letter from which he read. In it they said they had found this attractive 10 -acre parcel with the front half in pasture and the back in juniper which seemed like a perfect homesite. They had a septic feasibility which was approved, and they had an agreement to share a well with two of the neighbors. They began applying for a conditional use permit this spring so they could build. They wanted to build in the junipers and fully utilize the pasture in the front, and felt this use would be consistent with the neighboring parcels. Mr. Hendrix said when the Smirnov's applied for a dwelling, the County was doing the "Williams wooly cow case," and they were told there was no way they would be able to get a farm dwelling but could apply for a nonfarm dwelling. He felt this hearing was really to consider the Hearings Officer's decision on the parcel size. He showed the Board on a map where the Smirnov parcel was located and which parts of the property were irrigated. The entire area had been one farm in the past. The Smirnov's application was stalled when the neighboring land owner complained about an adverse impact on an organic farming process. The Hearings Officer found "that but for this issue of whether this land could be joined with a neighboring land owner that he would have approved this application." The Hearings Officer said if there had been a valid and binding offer made during the appeal period, he suggested the appeal be denied; and if there wasn't such an offer, then a conditional use application should be granted. The Hearings Officer felt the record was unclear whether there was a valid offer at that point. The Hearings Officer also found there was no alteration in the area's stability, no interference with accepted farming practices, and although the neighbor had objected because of her organic farm, he did not find on that issue. Therefore, Mr. Hendrix wanted to focus on the "Stephen question." After the Hearings Officer's decision, he received a letter from the Laura Jaap-Vollstedt's attorney offering to purchase the 10 -acres for $32,500 under the following terms: $500 payable upon seller's acceptance and $4,500 due at closing after four months. The price for the neighbor to back out of that offer and stop the appeal was only $500, while the applicant had to pay $1,000 to appeal. Then the balance of $27,000 would be paid at 8% interest at $200 a month which would amortize in a little over 30 years, however there would be a balloon payment or call in 10 years. He calculated that there would be approximately $24,000 still owed at the time of PAGE 13 MINUTES: 11/25/92 o �Z-! '31 the balloon payment. He felt this offer would allow Jaap- Vollstedt to use the land with no risks for 10 -years when she would decide whether or not she wanted to buy the parcel. He referred this offer to his clients and then sent a letter back to the attorney for Jaap-Vollstedt asking for a clarification since the neighbor had a long-time unsatisfied judgement for a small amount of money where bank garnishment was involved. The Smirnov's were concerned about extending credit in this situation. He also knew that the neighbor was in the middle of a highly contested divorce action, and was being sued on an unpaid promissory note in the amount of $36,500. He felt each of these activities could encumber the Smirnov's property in the future. He said that in any real estate transaction, you needed to consider the amount of equity in the property, the likelihood of having to repossess it, and the cost of repossession which was why he had asked for further information. His letter was unanswered. He made another inquiry in November asking whether they would be providing further information and received a letter back stating that the offer had expired. He felt the offer which had been made was not a valid offer and had not been made in good faith but solely to keep the Smirnov's from doing anything with their property. He said the parcel was not currently in farm use, and they were willing to lose the farm deferral. If the conditional use was approved, the Smirnov's would have to pay the back deferred taxes which they were willing to do. He felt that if a neighbor was able to interfere with the process, then the Smirnov's would have no option but to let the parcel go back to the County for unpaid taxes, or they would have to sell it to the neighbor for virtually nothing. He did not feel that was what the Stephen case had intended. Mr. White asked whether Mr. Hendrix had seen any case law which indicated that a binding offer was necessary? Mr. Hendrix said the Stephen case said "that if it can be sold or leased" so he thought the question of whether it could be sold or leased had to be looked at. He said the Smirnov could deed the parcel over to the neighbor for $1, however he didn't think that was what LUBA meant to say in the Stephen case. He felt the rule of reasonableness required that the Stephen case be read in light of what it reasonably meant. If there was a full cash offer, he felt it might be a possibility even though the price was low. There had been some problems with the neighbor, and the neighbor had admitted to illegally cutting a third irrigation ditch across Smirnov property without authorization. That ditch was being used as recently as last week despite the Smirnov's objections. When they corresponded with the neighbor trying to address her concerns about the organic farm, they got a letter back saying that for $10,000 she would support the Smirnov's application. He said the properties were separated by ditching, however many farm operations were similarly separated so he didn't feel that was PAGE 14 MINUTES: 11/25/92 plg�:P? A0 a good argument. The Hearings Officer said there had to be a valid offer and there hadn't been one, therefore, they requested that the Board allow the conditional use. Chairman Maudlin asked whether there was any delivery of water across this property to somebody else's property. Mr. Hendrix said yes. The main delivery ditch ran close to the property line and all of the neighbors fed off from that ditch including the neighbor in lot 102. Mr. White asked if Mr. Hendrix was submitting any additional burden of proof? Mr. Hendrix said no, he was going forward on the Hearings Officer's decision. Mr. White noted that on page 4 of the Hearings Officer's findings and decision, that he talked about there not being adequate information on satisfying the first criterion which was that it was compatible with farm uses. Also on page 5, he stated that without additional information, the applicant had not met the criterion that it would not seriously interfere with accepted farming practices on adjacent lands devoted to farm uses. Mr. Hendrix said that when you read the end of the Hearings Officer's decision, he felt the Hearing Officer was pointing back to the issue of whether it could be joined or not. He said they would stand on what was submitted into the record on these issues. Donald Costello, 655 SW 7th, Redmond, testified as the attorney for Laura Jaap-Vollstedt and asked that the Board keep the record open in the event the testimony was not completed before Commissioner Throop had to leave. He said his client owned the property to the north of the subject property. There was more than one issue which was important to this appeal (as brought up by Assistant County Counsel Bruce White), and the Hearings Officer had not found that the determination rested solely on whether there would be a valid, binding offer. He pointed out that the Hearings Officer used the phrase "valid, binding offer" not "offer and acceptance." The letter from Ms. Jaap-Vollstedt was a valid letter and she intended to be bound by it. Whether the Smirnov's would find that acceptable was "irrelevant." Also in Stephen the operative language wasn't that the property actually be sellable, sold, leasable or leased; but used the phrase "unless evidence shows that the parcel can not be sold, leased or otherwise put to profitable agricultural use." His client made an offer to buy the parcel, however she could also have made an offer to lease the property. Given the historical use of the property, a reasonable lease would have been $200 a month, therefore the fact that the Smirnov's thought she had credit problems was irrelevant. He said the issue which would get the Board into that analysis hadn't been addressed by the applicant, because the parcel could be farmed. Ms. Jaap- Vollstedt could economically farm a very small part of her PAGE 15 MINUTES: 11/25/92 0127-1923 0 ` 0-0 ` ;' land with currents and other organically grown products since the land was fertile. He referred to the same comments by the Hearing Officer which Assistant County Counsel Bruce White discussed earlier concerning insufficient information. Ms. Jaap-Vollstedt had gone onto the Smirnov's land in order to divert water for her property. She maintained she had the legal right to do so, however, that dispute had nothing to do with the case before the Board. He said the Smirnovs purchased the land three years ago for $25,000, and about that same time Ms. Jaap-Vollstedt also tried to purchase the property. She had also made purchase offers to the Smirnovs prior to this land use proceeding so there was no reason to contend that her offer to purchase the property was made in bad faith. Laura Jaap-Vollstedt, 66301 Gerking Market Road, testified that she had a concern for the Tumalo area. Her property and the Smirnov parcel were originally part of a dairy which had existed since 1918. It had a high soil type and the potential to be developed into farming land again. She said the Smirnov's had only attended this land from California. They did not live here, and they had never watered, cleaned or cared for the land. She understood that this application was not for the Smirnov's but for a party who intended to purchase the property from the Smirnovs. She had made several good faith attempts to purchase the subject property over the last three years. She wanted to use the property to add to her organic farm. She brought some photos (Exhibit A) to show the water ditch situation. The water ditch which came through the Smirnov's property also went through the Coffee's and the Edding's property. It was the only water which she had for her home and for her pond. Ralph McNulty, previous director of Tumalo Irrigation, remembered that irrigation ditch being shared since at least 1973. Her home was the original farm house for the property. She said she had to cross onto the Smirnov property because there was a check dam on the Smirnov property where you had to switch the water from irrigation to water to the house. She had always done that and the neighbor had always done it since at least 1973. She had tried to work with the Smirnovs on the water ditch, but the Smirnovs "damned up the ditch completely" so she had no access to water for her house or her animals. She said the property was farmable, and she was making a good faith effort to put the entire farm back together. Commissioner Throop said he thought the opponents had a "silver bullet," and the options for the Board were extremely limited. He felt this was the best example he had seen in Deschutes County for what he thought state law had envisioned in terms of consolidation of parcels that were appropriate for farm use, as opposed to letting those parcels be converted for rural residential use. He felt this parcel had some problems PAGE 16 MINUTES: 11/25/92 11. 012'7-1924 0 10 meeting the criteria, i.e. the suitability of the homesite for production, the stability of the area, the interference with the practices in the area. He felt that even if the Board approved this application, it would be a loser on appeal. He asked Mr. Hendrix to give his very best argument as to why "none of that plays in this case." Mr. Hendrix said the question about consolidation had to be considered at what level? "Does consolidation happen for $1, does it happen for $2? He said the Smirnov's were native Oregonians and went to college here, wanted to live in Bend and have a house on this property. Can the neighbors in a continuing cycle of harassment force the Smirnov's and the Coffee's to sell them their property for next to nothing? If the Board turned down this application, would the offer to purchase go down from $32,500 to $10,000 or $5,000? He felt that the Board still needed to take into consideration whether it was a reasonable price? He didn't feel approving this application would be a loser at LUBA, and he would work with County Counsel to develop sufficient findings to win at LUBA. Commissioner Throop said he would listen to a tape of this hearing if there was any further testimony since he had to leave at this point. Chairman Maudlin said he would leave the record open for written testimony until 5 p.m. on Wednesday, December 2, 1992, and that the decision would be made at the Board's meeting on Monday, December 7, 1992, at 10 a.m. Chairman Maudlin closed the hearing for oral testimony. FINAL PERIODIC REVIEW PACKAGE ORDINANCES 92-051, 92-052 AND RESOLUTION 92-062 Before the Board was signature of the final periodic review package Ordinances 92-051, 92-052 and Resolution 92-062. Bruce White said Ordinance 92-051 amended goals and policies which were required by periodic review; Ordinance 92-052 adopted certain ESEE and conflict analysis for areas of special concern and some energy resources; and Resolution 92- 062 adopted the County's final periodic review order which was a findings document which stated how the County had addressed all of the concerns under the various factors which DLCD required the County to address. It was the culminating document of the County's periodic review process and referred to all of the various ordinances which the County had adopted through the process to address all of the various factors which DLCD required the County to address. The Board last saw this package on July 22, 1992, and he provided minutes from that meeting for the Board to review. Since the Board had last looked at these, there had been three changes in 92-051. In Section 1, they had planned to repeal the entire section, PAGE 17 MINUTES: 11/25/92 0127-"1925 0,' `.- 0` "i 6 however when he reviewed it closely, he felt the Board would want to retain the first sentence, so only the second sentence was repealed. He added a new policy (section 3A) which stated that the County would conduct a review of its SDCs for the area outside the urban growth boundary by January 1, 1995. Under factor 2, he added a new section 8A which stated that certain areas of special concern were identified as 1B areas, and that the County would review them prior to December 31, 1994. Mr. White continued that Ordinance 92-052 replaced areas of special concern in the existing resource element pages 102- 109. The analysis in the ESEEs addressed areas of special concern and the energy element supplemented the existing Rivers Study and the geothermal element. Resolution 92-062 culminated the entire periodic review process and the entire package would be sent to DLCD the following week. Mr. White said the landscape management and the wildlife areas of this package were being appealed, however he felt the provision of this ESEE would help support the ordinance which was now on appeal. The appeal had been deferred from LUBA to DLCD for LCDCs consideration as a package. MAUDLIN: I would entertain a motion for first and second reading of Ordinance 92-051 by title only. SCHLANGEN: So moved. MAUDLIN: Second. VOTE: THROOP: Excused SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-051. SCHLANGEN: Move adoption. MAUDLIN: Second the motion. VOTE: THROOP: Excused SCHLANGEN: YES MAUDLIN: YES Both Commissioners agreed they wanted to allow Commissioner Throop to sign these ordinances even though he had left the meeting. Bruce White said Commissioner Throop could sign the ordinances even though he didn't vote on them. MAUDLIN: I need a motion for first and second reading of Ordinance 92-052. PAGE 18 MINUTES: 11/25/92 012'7-1926 0 '10 F194 SCHLANGEN: So moved. MAUDLIN: Second. VOTE: THROOP: Excused SCHLANGEN: YES MAUDLIN: YES Chairman Maudlin performed the first and second readings of Ordinance 92-052. SCHLANGEN: Move adoption. MAUDLIN: Second the motion. VOTE: THROOP: Excused SCHLANGEN: YES MAUDLIN: YES MAUDLIN: I need a motion for adoption of Resolution 92-062. SCHLANGEN: Move adoption. MAUDLIN: Second the motion. VOTE: THROOP: Excused SCHLANGEN: YES MAUDLIN: YES DATED this day of Commissioners of Deschutes County, 9 AT ST Nancy ecording Secretary I 4ck PAGE 19 MINUTES: 11/25/92 1992, by the Board of 0 on. 10, V hkbop Commissioner Pop c angen, Commissi ner Maudli airman