1993-02276-Minutes for Meeting December 09,1992 Recorded 1/6/199393-022'75 0120-0480
MINUTES
DESCHUTES COUNTY BOARD OF COMMISSIONERS
December 9, 1992
Chairman Maudlin called the meeting to order at 10 a m hoard
members in attendance were: Dick Maudlin, Tom Throop. and Nancy
Pope Schlangen. Also present were: Rick Isham; County Counsel;
Karen Green, Community Development Director; George Read, Planning
Director; and Paul Blikstad, Planner.
1. CONSENT AGENDA ITEMS
Consent agenda items before the Board were: #1, signature of
Order 92-004 establishing a portion of Fall River Drive as a
County Road; signature of ODOT. Project Prospectus for new
bridge, and signature of Federal Aid Project request to
realign and replace Fall River Bridge; #2, signature of Gate
Permit 92-004 for gate on Somerset Drive; #3, signature of
Resolution 92-091 amending Resolution 90-084 Adopting
Deschutes County Five Year Major Roads Capital Improvement
Program; #4, signature of Mental Health Services Subcontract
with the Central Oregon Alcohol Council to provide DUII
Diversion Programs; #5, reappointment of Karen Green to the
Redmond Airport Commission; #6, signature of Development
Agreement for expansion of A & B Meat Market adjacent to
Deschutes Station on South Highway 97; and chair signature of
ballot voting "yes" on whether the Corporation of Deschutes
Reclamation and Irrigation Company (Swalley Water) should be
dissolved upon formation of an Irrigation District.
THROOP: Move approval of the consent agenda items 1-7.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
2. PUBLIC HEARING ON ORDER 92_-115 VACATING PORTION OF PONDEROSA
CASCADE DRIVE & SISEMORE ROAD
Chairman Maudlin opened the public hearing and continued it to
Wednesday, January 13, 1993, at 10 a.m. One of the
petitioners had a death in the family and had requested the
continuance.
3. RADIO AND TRANSMISSION AND RECEIVING SUBLESSEE AGREEMENT WITH
TELEPAGE NORTHWEST
Before the Board was signature of Radio Transmission and
Receiving Sublessee Agreement with Telepage Northwest. Rick
PAGE 1 MINUTES: 12-9-92 /1
4.
5.
0120-0481
Isham said that a notice of this request had been sent to
everybody on the Awbrey Butte tower site list and there had
been no comments.
SCHLANGEN: I move signature.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
LABOR CONTRACT WITH THE SHERIFF'S ASSOCIATION
Before the Board was signature of the Collective Bargaining
Agreement with the Deschutes County Sheriff Association for
the period of July 1, 1992, to June 30, 1995.
SCHLANGEN: I move signature of contract with Deschutes
County Sheriffs Association.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
ORDINANCE 92-071 AMENDING TITLE_ 13.12, Division III SOLID
WASTE
Before the Board was signature of Ordinance 92-071 amending
Title 13.12, Division III. Solid Waste Collection, Disposal
and Recycling, of the Deschutes County Code. Chairman Maudlin
said that under the definition of "Solid waste" it referred to
"abandoned vehicles." That reference was being changed to
"inoperative and/or unlicensed or dismantled or partially
dismantled vehicles."
SCHLANGEN: I move first and second reading by title only
of Ordinance 92-071.
THROOP: Second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
Chairman Maudlin performed the first and second readings of
Ordinance 92-071 by title only.
SCHLANGEN: Move adoption.
PAGE 2 MINUTES: 12-9-92
0120-0482
THROOP: Second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
6. ACCOUNTS PAYABLE VOUCHERS
Before the Board were accounts payable vouchers in the amount
of $163,088.14.
SCHLANGEN: Move approval upon review.
THROOP: Second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
7. APPOINTMENT TO BEND URBAN AREA PLANNING COMMISSION
Before the Board was reappointment of Don Gamble to the Bend
Urban Area Planning Commission.
THROOP: I'll move the Gamble reappointment.
SCHLANGEN: I'll second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
8. RESOLUTION 92-093 AUTHORIZING COORDINATED SERVICES DIRECTOR TO
APPROVE REFUNDS AND OVERPAYMENTS
Before the Board was signature of Resolution 92-093
authorizing the Coordinated Services Director of the Community
Development Department to approve refunds for overpayments on
behalf of the County.
THROOP: I'll make motion to approve that request.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
9. APPOINTMENT TO SPECIAL ROAD DISTRICT #8 BOARD OF DIRECTORS
Before the Board was appointment of Robert Berryhill to
Special Road District #8 Board of Directors.
PAGE 3 MINUTES: 12-9-92
0120-0483
THROOP: I'll move the appointment of Bob Berryhill.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
10. APPOINTMENT TO DESCHUTES MITIGATION & ENHANCEMENT COMMITTEE
Before the Board was appointment of Caryn Throop to the
Deschutes Mitigation & Enhancement Committee.
SCHLANGEN: I'll move appointment.
THROOP: I'll second the motion.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
11. RESOLUTION 92-094 DELEGATING_ APPROVAL AUTHORITY
Before the Board was signature of Resolution 92-094 delegating
authority to approve plats, partition, maps and liquor
licenses on December 31, 1992, to Dick Maudlin, Chairman, or
Nancy Pope Schlangen, Commissioner. These actions would be
ratified by the Board on January 6, 1993.
THROOP: I'll move signature of the resolution.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
12. TAX REFUND ORDER 92-138
Before the Board was signature of tax refund Order 92-138.
THROOP: I'll move signature.
SCHLANGEN: Second.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
PAGE 4 MINUTES: 12-9-92
0120-0484
13. COURT OF APPEALS REJECTION OF CHALLENGE TO COUNTY'S
ACKNOWLEDGEMENT
Bruce White reported that the Court of Appeal had rejected Mr.
Kinsey's challenge to the County's acknowledgement. It
affirmed without opinion the County's acknowledgement. Mr.
Kinsey had filed a petition for review with the Supreme Court.
The County had not been a party in these appeals and had
relied on LCDC and Bend Aggregate and Paving to represent the
County's interest. He asked if the Board wanted to continue
in that manner and the Board agreed.
14. FINDINGS AND DECISION ON ADAMS PARTITION
Bruce White said that an issue had arisen on the final
findings and decision on the Adams partition which he felt
should be discussed with the Board. The Hearings Officer's
decision had noted that there had previously been granted a
farm dwelling on the entire 40 -acre parcel in 1991.
Subsequently the Adams filed for a partition which was
approved by the Board. A condition of both the staff report
and the Hearings Officer was that the approval of the farm
dwelling on the 40 -acre parcel should be voided if the
partition was approved, and Mr. White's draft also had
included that condition. Then he found out from Planning
staff that the building permit on the 40 -acre parcel had
already been exercised. He pointed out to the Board that it
would be very difficult for the applicant to justify a farm
dwelling under the farm dwelling criteria in place at the time
of the application or under the new farm dwelling criteria.
He said the conditional use for the farm dwelling was issued
in July 1991 for the 40 -acre piece. In October of 1991, the
applicant came in to split the parcel into two 20 -acre parcels
and also to apply for a dwelling on the second 20 -acre parcel.
Staff recommended that if the partition was approved, the
conditional use on the 40 -acres be voided. On June 29, 1992,
they applied for a building permit on the 40 -acre parcel under
the conditional use permit which had already been grated. The
partition was scheduled before the Hearings Officer in June,
but had been delayed several times at the request of the
applicant. The Hearings Officer denied the partition and
noted that the conditional use would have to be voided if the
partition had been approved. The Board heard the issue in
September and a decision was issued on October 7, 1992,
approving the partition. At the time of the hearing, the
applicant's attorney, Dan Van Vactor, did not specifically
make reference to those conditions as being unacceptable. He
did, however, state that they had approval for a house on 20 -
acres. The Board had approved the partitioning of one 40 -acre
parcel into two 20 -acre parcels without approving any
dwellings.
PAGE 5 MINUTES: 12-9-92
0120-0485
Rick Isham stated that to include this condition in the
decision would be a new interpretation of a long-standing
ordinance provision. He felt it would be better to place more
explicit language into the ordinance if that was what the
Board wanted to do.
Karen Green pointed out that the building permit would expire
near the end of the month, however construction had not been
started at the site. She said they could not apply for an
extension if they had not made substantial progress on the
building permit, and he would have to reapply if the permit
expired.
Mr. White said he would contact the attorney for the applicant
about this issue. If necessary the Board could revisit the
issue on December 30, 1992.
15. PUBLIC HEARING: RYAN APPEAL ON A-92-18
Before the Board was a public hearing on an appeal (A-92-18)
of the Hearings Officer's decision on MP -90-79 which required
the applicant to improve Reed Lane along his property.
Paul Blikstad said that the criteria relied upon for review of
this application were Section 19.28 of Title 19 the RS Zone,
the Bend Area General Plan, Title 17 of the County Code --
Partitions, and Title 2 of the County Code --Procedures. Staff
wrote a decision on the partition in 1990. In that decision
there was a transmittal response from the County Public Works
Department stating that road improvements to Reed Lane should
be required. Also in the conclusionary findings of that
decision, it stated that the road needed to be improved in
order for the applicant to meet the standards of Title 17,
however staff failed to incorporate those findings into the
conditions of approval for that partition. Nothing happened
until the applicant attempted to complete his partition two
years later by having his mylar drafted and going through the
Public Works Department. Tom Blust, County Engineer, brought
this to Mr. Blikstad's attention, and he discussed it with the
Planning Director. The Planning Director instructed him to
write a letter to Mr. Ryan indicating that the improvements
would be required, and that he had 10 days in which to appeal
that decision. That letter was sent on September 14, 1992,
and Mr. Ryan appealed that decision to the Hearings Officer.
The Hearings Officer found that the road improvements should
be required and could be required by the County, therefore Mr.
Ryan was appealing the decision to the Board.
Chairman Maudlin opened the public hearing.
Bob Lovlien, attorney representing the applicant Cyril Ryan,
testified that the applicant was unable to attend the hearing.
PAGE 6 MINUTES: 12-9-92
0.20-0486
He was not disputing whether the road improvement standards
were within the authority of the County. They were concerned
that after the fact, the County was modifying the approval
granted almost two years ago. Mr. Ryan applied for a minor
partition for three parcels on the corner of Reed Lane and
Blakley. The Planning Division report said they had received
various transmittals and outlined them. He said that if he
had looked at Mr. Ryan's approval back in 1990, he would have
made the determination that the Planning Department had
concluded that additional road improvements in front of Mr.
Ryan's property were not necessary. He read the ordinance to
mean that in the approval of a land partition, the County
shall consider the need for street and other improvement and
may require, as a condition of approval, any improvements that
may be required for a subdivision. There were currently no
sidewalks or curbs on Reed Lane, and it would dead end at the
Bend Parkway when it was built. Therefore, the only people
who would use the road would be those who were currently using
it. This partition would not result in increased traffic on
down Reed Lane. Since the ordinance language said "may
require" he felt it was logical for someone to assume that the
Planning Department had concluded that they were not going to
require anything other than a 30 -foot extension of the right
of way. The Hearings Officer had said that since there was a
transmittal letter from Public Works in the staff report was
cited in the body of the decision, that it became a condition
of approval. He pointed out that there were lots of
transmittal letters which requested certain conditions of
approval which never got adopted by the Planning Department or
the Hearings Officer when the final decision was made. He
asked that the Board place themselves in the position of Mr.
Ryan. If two years ago he had been told that he would have to
put in sidewalks, roads, and curbs, he could have made a
decision whether or not to proceed with his final mylar. Now
he had already expended money for surveyors, attorney's, etc.
and had circulated the final mylar for signature before he was
made aware of the new condition of approval. They felt it was
unfair, especially when the road would be a dead end soon. He
said there were petitions in the record from neighborhoods
indicating there were no joggers or walkers, and they didn't
want curbs and sidewalks. They felt when they received an
approval which was within the boundaries of the ordinance and
within the discretion of the Hearings Officer, an applicant
should have the right to rely upon that approval. Section
17.28.030 of the Subdivision Ordinance said the County may
require any improvement which may be required for a
subdivision. Section 17.36.040 discussed existing streets and
said that the County would determine whether improvements to
existing streets are required; and such improvements shall be
required when traffic on such streets shall be directly
affected by the proposed partition. He said he could show
examples around the community where improvements had been
PAGE 7 MINUTES: 12-9-92
required and where they had not. He also felt thQJUs J§7
latitude on what was required on partitions as opposed to
subdivisions.
Wanda Rawlins testified she had lived on the corner of Duncan
and Reed for eleven years. She said Duncan was the only wide
street in the area and there were no sidewalks on Duncan. She
said there were only two or three people who walked their dogs
in the area. She was in favor of curbs and sidewalks if the
whole street was improved including potholes. She felt the
County had mislead the applicant for two years and then had
come up with some new rules. She had spoken to a contractor
who told her he could do those curbs, sidewalks and road
improvements for a lot less than $13,000. She felt it was
"unreal" to ask Mr. Ryan to make those improvements to just
his part of Reed Lane when it would soon be a dead-end road.
Commissioner Throop said that part of the reason the Public
Works Department and the City of Bend recommended that these
conditions be included was that this area would eventually be
annexed into the City of Bend. They felt that as property was
developed, the lands, roads and services adjoining that
property should be brought up to an urban standard. Then in
a short period of time when the area was fully developed,
there would be an urban level of facilities and services in
the neighborhood. Wanda Reed said that would be fine if every
neighbor had to pay to improve the street and put in curbs and
sidewalks, but it wasn't fair just to single out Mr. Ryan.
Commissioner Throop asked whether having the applicant place
money in an escrow account would be more acceptable to her.
Wanda Reed suggested that it just be agreed "on paper" that he
was good for $13,000 should this area be annexed by the city.
Paul Blikstad reemphasized that the road improvements were
required in the conclusionary findings, not just in the
transmittal response. He pointed out that two other sections
of the partition ordinance applied: 17.48.160(b) improvements
of public rights of way stating that the developer would be
required to improve all public ways that were adjacent or
within the land development, and 17.48.170 road development
requirements for partition stated that roadway improvements
within a partition and to a road maintained by a public agency
shall be constructed prior to final approval of the partition.
For a parcel size of less than 10, acres the road standards
used will be the same as for a subdivision. He said that in
the County's road improvement requirements, the County said
that the applicant had to put in sidewalks or at least bond
for sidewalks. There was a section in Title 17 which dealt
with sidewalks within the urban growth boundary which said,
that "in the case of streets serving residential areas having
single family dwellings located on lots or parcels equivalent
PAGE 8 MINUTES: 12-9-92
01.20--0488
to two and one half or fewer dwellings per acre, the
requirement of sidewalks shall not apply provided there is no
evidence of regular pedestrian activity on the streets
involved." The Board would have to determine whether the
letters from the neighbors saying very few people used this
road was evidence of no regular pedestrian activity. He also
pointed out that the reason there was no evidence of
pedestrian activities was because there were no sidewalks.
Commissioner Throop asked Mr. Blikstad to focus on Mr.
Lovlien's interpretation that this was a "changing of the
minds" on conditions of approval. Mr. Blikstad said he didn't
believe that minds were changed at all, especially since it
was in the County's conclusionary findings. He said that on
all partitions in the urban area, the County had "pretty
consistently" been requiring road improvements, especially in
the last two years. During that period, all of the partitions
he had been involved in had required road improvements. He
felt bad that his oversight caused Mr. Ryan any problems.
Chairman Maudlin asked if the Public Works Department was the
only transmittal received regarding the road improvements.
Mr. Blikstad said the Hearings Officer's decision did not
include the original transmittal responses received in 1990.
One of those was from the City of Bend which said that the
applicant should sign an annexation agreement and improve Reed
Lane to City and County standards.
Chairman Maudlin said that he knew of a few situations where
the Planning Department allowed different standards than were
recommended by the Public Works Department. George Read said
the difficulty the staff had with the standards as they were
written was "the potential problem with the reasonable nexus"-
-the relationship of the action taken to the improvement being
required to meet the standards of the ordinance. He said the
place where they deviated from some Public Works
recommendations was when they determined that there may not be
a reasonable nexus which they could make.
Chairman Maudlin asked whether since the condition was left
out, the applicant could reasonably assume that it wasn't
necessary. Mr. Read said that the Hearings Officer found that
the decision had to be looked at as a whole with all of the
findings and the decision, and that the list of conditions
might not be the only conditions. He also pointed out that
the two sections sited by Mr. Blikstad said shall not may.
Chairman Maudlin thought that there was an agreement with the
state that Reed Lane would be improved as part of the Parkway
project. This was going to be investigated prior to the Board
making a decision on this issue.
PAGE 9 MINUTES: 12-9-92
0120-0489
Bob Lovlien said he disagreed with George Read regarding what
it said in 17.48.170. He always felt that language referred
to roadway created as part of a major partition, i.e. a
roadway created to serve a lot would have to be created to
urban standards. However, in this case the roadway was
already there, and it was a minor partition. The other
section discussed was 17.48.160, and he said "that flies in
the face of the two other ones" (17.36.040 --existing streets
and 17.28.030 which has the may require certain provisions).
He felt that two years ago, he might have concluded that the
Planner had decided that it didn't make sense to require road
improvements for this particular partition on this particular
road.
Chairman Maudlin closed the public hearing for oral testimony,
but announced that written testimony would be accepted until
the Board's meeting the following week (December 16, 1992)
when the Board would make a decision on this appeal.
PAGE 10 MINUTES: 12-9-92
DATED this day of &Z�Mbw,
Commissioners of Deschutes County, Oreg
� ,
Tom,�ghroop,
A E
ecording Secretary
PAGE 11 MINUTES: 12-9-92
1992, by Q-044 Q
�4zi
Nafncy Pope ch�angers; Commis`si ner
ck lCaiidlin, Chairman