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1996-04804-Minutes for Meeting December 06,1995 Recorded 2/1/199696-04804 X3149— v MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS December 6, 1995 _ Barry g g 6 ,.a,. m . Chair Bar Slaughter called the meeting to order at 10:0 County Commissioners in attendance were Barry H. Slaughter,- Nahcy Pope Schlangen, and Robert L. Nipper. Also in attendance were;'ike Maier, County Administrator; Bruce White, Assistant County.Courts'el; Paul Blikstad, Planner; Catherine Morrow, Planner; Sue :Stoneman, Community Relations Specialist; George Read, Community Dervelopment Director; Dave Leslie, Planner; Sue Brewster, Assistant County Counsel; and Kevin Harrison, Planner. c, 1. CONSENT AGENDA: Consent agenda items before the Board of County Commissioners were: (1) signature of Lease Purchase Commitment Letter with First Interstate; (2) signature of Order No. 95-173, confirming the Land Sale Auction; (3) signature of Final Plat for James Knapp; (4) appointment of Don York to the Fall River Estates Special Road District Board of Directors; (5) reappointment of Pete Miller, Carolyn Miller, Bruce Abernethy, and Ed Meierjeski to the Deschutes County Human Services Advisory Board; (6) Chairs signature of Grant Contract with Oregon State Library for the Internet Infrastucture Grant Project; (7) signature of Conservation Agreement as a condition of approval for James and Kelly Young; and (8) signature of Resolution No. 95-152, declaring the intent to transfer real property to the City of Redmond. SCHLANGEN: I move approval of consent agenda items 1-8. NIPPER: Second the motion. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 2. 11:00 A M PUBLIC HEARING ON APPEAL OF THE HEARINGS OFFICER'S DECISION ON WAL-MART GARDEN CENTER SITE PLAN Chair Slaughter reconvened the meeting at 11:03 a.m. Chair Slaughter asked for disclosure from the commissioners for any prehearing contact in this matter. Each Commissioner stated they had none. Chair Slaughter also asked audience members if they felt any member of the Board of Commissioners should be challenged with bias for the inability to make a fair decision in this matter. No challenge was made from the audience. MINUTES 1 DECEMBER 6, 1995 Paul Blikstad reviewed the application and criteria for the hearing. The Garden Center was open only April through October. The Hearings Officer decision was handled as a land use application. The decision was appealed on May 8, 1995. The Hearings Officer found that the appellant was not a party to the administrative decision and did not and was not entitled to appear or present written evidence to the county regarding the written administrative decision. Chair Slaughter opened the public hearing. Antonio DeMeo, attorney on behalf of Wal-Mart, stated she would like to address the Board after Fran Franklin made her presentation. Dan Van Vactor submitted a memorandum to the Board. He pointed out to the Board the definition of a hearing de novo. He felt that if the Garden Center brought in one more car driving past the Blue Spruce Motel, it impacted that property. By the admission of the applicant, they built this garden center before they even applied for an application. He felt there was a series of standards that apply to Wal-Mart. Wal - mart had one alternative to live up to the development agreement. They had tried to get this issue resolved for almost two years. He felt Wal-Mart had not addressed the Bend Area Plan. He requested the Board review the site plan ordinance. He felt the Hearings Officer, Karen Green, because she was the Planning Director at the time of the application, was biased. The last issue was that the City of Bend had annexed Badger Road. It is not in the jurisdiction of the County. He felt the county did not have jurisdiction in this issue. Fran Franklin testified in reference to the issue of safety. On the corner of Badger/Hwy. 97, Badger was the key access to Wal-Mart. She stated the corner was operating at 200 plus percent of capacity. The radius was reduced to 25 feet on that corner. She stated it had impacted them terribly. She stated 70% to 80% of the traffic would come from the north. The permit specialist at ODOT stated the corner does not meet state specifications. She stated the garden center corral would increase the number of new trips per day between 400-500 per day to Wal-Mart. She felt the capacity of the corner had been increased beyond belief. She stated the Wal-Mart permit had never been complied with. The need for the Badger Road improvement was triggered by Wal-Mart. She submitted a letter from Bob Bryant. She reported their business had dropped off and been damaged. Antonio De Meo, Wal-Mart attorney, stated that Wal-Mart did not present any new testimony because they were relying on the record. She stated there were four issues raised on this MINUTES 2 DECEMBER 61 1995 appeal. These four issues were standing, officer, whether or not the garden permit underlying permit, and 120 -day rule. She remain open to allow Wal Mart time memorandum presented today. She felt t moot. She stated the issues of bias and did not apply to this case. This was Conditional Use Permit. The garden cente parking lot and all of the issues today issue being discussed here today. bias of the hearings was dependent on the requested the record to respond to the ie issue of bias was conflict of interest lot dependent on the r was a corral in the did not apply to the Dan Van Vactor felt it was important to remember that Deschutes County adopted the ordinances. He reminded everyone that this was a de novo hearing. He objected to the record being left open. Paul Speck, attorney on behalf of Franklins. The presentations by Dan Van Vactor and Fran were made under the allegation #4. This site plan would not exist but for the underlying conditional use permit. Bruce White asked if there was some criteria that needed to be met. Paul Speck addressed the modification of the conditional use permit. LUBA stated the hearings officer modified the conditional use permit. The case law indicates there was no modification at this time. Regarding the bias issue, Paul Speck wanted to make it clear that Karen Green was the CDD director when Wal-Mart made this application. The final issue was the road issue which was still very much alive. Wal-Mart made an application and they were suppose to provide information. Wal-Mart did not provide information. Wal-Mart knew that they had to address Badger Road. The information does not provide what was going to happen to the Blue Spruce Motel. He stated there were some superfluous attempts by Wal- Mart to buy the property. There was nothing in the record by Wal-Mart that they had to do anything with the road. The record will remain open until Friday, December 15, 1995, at 5:00 p.m. for written testimony. Wal -mart will be limited to rebuttal only on the documents presented. The Board will not consider anything beyond rebuttal. (See attached copy of transcript.) 3. SIGNATURE OF ORDINANCE NO. 95-078 AND 95-079, CHANGING THE PLAN DESIGNATION AND ZONING ON 9.47 ACRES FROM RL TO RS Before the Board was signature of Ordinance No. 95-078 and 95- 079, changing the plan designation and zoning on a 9.47 acre parcel from RL to RS. MINUTES 3 DECEMBER 6, 1995 T 0149-CCZA NIPPER: I move first and second reading, by title only, of Ordinance No. 95-078. SLAUGHTER: I'll second that. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES Chair Slaughter performed the first and second reading of Ordinance No. 95-078, by title only. SCHLANGEN: I move adoption of Ordinance No. 95-078. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES NIPPER: I'll move first and second reading of Ordinance No. 95-079, by title only. SLAUGHTER: I'll second that again. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES Chair Slaughter performed the first and second reading of Ordinance No. 95-079, by title only. SCHLANGEN: I move adoption of Ordinance No. 95-079. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 4. ADOPTION OF ORDINANCE NO 95-083, REGARDING THE EXTENSION OF PERMIT FOR RIVER MEADOWS Before the Board was adoption of Ordinance No. 95-083, regarding the extension of a permit for River Meadows. Bruce White reported there was a sunset provision date of February 29, 1996, in this ordinance. SCHLANGEN: I move first and second reading of Ordinance No. 95-083, by title only. MINUTES 4 DECEMBER 6, 1995 I 0149-6- CEJ - NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES Chair Slaughter performed the first and second reading of Ordinance No. 95-083, by title only. SCHLANGEN: I move adoption of Ordinance No. 95-083. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 5. SIGNATURE OF RESOLUTION NO 95-153, ADOPTING THE CODE ENFORCEMENT MANUAL Before the Board was signature of Resolution No. 95-153, adopting the Code Enforcement Manual. Catherine Morrow reported the manual was ready for signature and the effective date would be January 1, 1996. NIPPER: I move signature of Resolution No. 95-153, adopting the Code Enforcement Manual. SCHLANGEN: Second the motion. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 6. SIGNATURE OF ORDER NO 95-166, AUTHORIZING THE REFUND OF TAXES Before the Board was signature of Order No.95-166, authorizing the refund of taxes. SCHLANGEN: I move signature of Order No. 95-166. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES MINUTES 5 DECEMBER 6, 1995 I f 7. SIGNATURE OF FINAL PLAT FOR MP -95-13 Before the Board was signature of a final plat for MP -95-13. SCHLANGEN: I move signature of plat. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 8. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS Before the Board was approval of weekly accounts payable vouchers in the amount of $652,469.60. SCHLANGEN: I move approval upon review. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES 9. SIGNATURE OF FINAL PLAT FOR THE REPLAT OF SNOW CREEK RANCH Before the Board was signature of a final plat for the replat for Snow Creek Ranch. SCHLANGEN: I move signature of final plat. NIPPER: Second. VOTE: SCHLANGEN: YES SLAUGHTER: YES NIPPER: YES The Board recessed the meeting until 11:00 a.m. when the public hearing for an appeal of the Hearings Officer's decision on the Wal-Mart Garden Center Site Plan would be heard. MINUTES 6 DECEMBER 6, 1995 DATED this 6th day of December, 1995, by the Board of Commissioners of Deschutes lounty. ��Y"l � - "4!� BarryH. laughter, Chhairman Nancy Popes td-J&ngen, Commiss finer AT T: II G/ Recording Secre ary Rob rt L. Nipper, Cordmissioner MINUTES 7 DECEMBER 6, 1995 0149-CCIU73 FRIDAY, DECEMBER 6, 1995: 11:00 A.1,1 - 1 CHAIR: The last item on the agenda -- it is 11 o'clock -- public hearing, appeal of the hearings officer's decision on Wal-Mart Garden Center site. Is Paul here? Mr. Blikstad? I am going to read it, yes. Do you want to read that right now? CHAIR: This is an introduction to this hearing. This is a public hearing on an appeal of the Deschutes County hearings officer's findings and decision for A-95-12, an appeal of the planning director's decision for SP -95-26, a site plan for the Wal-Mart Garden Center. The appeal application was previously considered by the county hearings officer after a public hearing held on Tuesday, August 1, 1995. Evidence and testimony were received at that hearing. The hearings officer denied the appeal in a written decision dated September 13, 1995. The application has the burden -- or the applicant, I should say, has the burden of proving that they are entitled to the approval sought. The planning staff will read the applicable criteria during the staff report given. The procedures application for this hearing provide that the Board of County Commissioners will hear testimony, receive evidence, and consider the testimony, evidence, and information submitted into the record, as well as that evidence constituting record before the hearings officer. The record as developed at this point is available for public review at this hearing. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing, which will be read by the planning staff during the staff report. The testimony may be directed to any other criteria in the comprehensive land use plan of the county of land use regulations which any person believes apply to this situation. Failure on that part of any person to raise an issue with sufficient specificity to afford the Board and the parties to this proceeding an opporrunity to respond to the issue precludes appeal to C of appeals on this issue. The hearing will be conducted in the following order. The staff will give a- report on the prior proceedings and the decision of the hearings officers. The applicant, Wal-Mart -- oh pardon me -- the appellant, will then have an opportunity to make a presentation and offer testimony in evidence. The appellants [sic] will then be given a chance to make a presentation. After both opponents and appellants have made a presentation, the Board may allow rebuttal statements at he Board's discretion. At the conclusion of this hearing, the staff will be afforded an opportunity to make closing arguments, and the Board may limit the time period for presentations. The questions to and from the Chair may be entertained at any time at the Board's discretion. Cross examination of witnesses will not be allowed. However, if any. person wishes to question — wishes, a question may be asked of any person during the person's presentation. Please direct any such questions to me, the Chair, after being recognized. The Chair is free to decide whether or not to ask any question of the witnesses. I will not direct the questions to the other members of the Board of County Commissioners. If any member of the Board, including me, has had any pre -hearing contacts, now is the time to say so. UNKNOWN: None. UNKNOWN: None. UNKNOWN: I have had none. BRUCE WHITE: I assume we are just talking about not on this particular -- CHAIR: -- on this particular item. At this time do any members of the Board need to set forth the substance of any ex parte observations or facts which this body should take notice 0XZ-C G1' concerning this ap;;-1`7 UNKNOWN: No. UNKNOWN: I have none. UNKNOWN: I have none. CHAIR: Any person in the ordinance who has -- ah, audience -- who has the right during the hearings process to rebut the substance of any communications or observations that have been placed in the record. Any party, prior to the commencement of this hearing, may challenge the qualifications of the Board of County Commissioners or any member thereof of bias, prejudice, prejudgment, or personal interest. This challenge must be documented with specific reason supporting the facts. I will accept any challenges now. Is [sic] there any challenges out there? Ok, we do not seem to have any challenges — hopefully. Should any Board member be challenged, the member may disqualify himself or herself and withdraw from the hearing and make a statement on the record of their capacity to hear the appeal. There are no challenges so we will proceed. I would like to suggest that any comments that we have from anybody be limited to three minutes. Ok, Paul, let's have the [staff report]. UNKNOWN: That's not for attorneys also, Mr. Nickel. UNKNOWN: Well, may be. PAUL BLIKSTAD: I may take just a little longer than three minutes. Well, just to briefly highlight what you stated, Mr. Chairman, before the Board today is an appeal of the county hearings officer's decision on A-95-12. This was an appeal of the planning director's findings and decision on SP -95-26, which was a site plan for the Wal-Mart Garden Center, which is located within the parking lot of the Wal-Mart store. This garden center is conducted 01.49-C&OU on] Y during T] , c:ontl-s of w�prox'm:--'y- Apr!? to O..t^J-r -,_d t -z a, ;� _ .ar 1 am wrong here, but I am assuming that is about the approximate time. The findings and decision of the planning director was rendered on April 28, 1995. This decision was made without prior notice, and notice of the decision was sent to the adjoining property owners on the same day the decision was mailed, which in this case was a decision that was handled as a land use action rather than a development action. The findings and decisions concluded that the only criteria applicable to the proposed garden center was Section 19.76.070(D), which is a criteria dealing with pedestrians and vehicular circulation and parking. The planning director's decision was appealed by the appellants on May 8, and was a timely appeal. A public hearing before the county hearings officer was held on August 1, 1995. The record was held open for written testimony until August 15, 1995, at the request of both parties. The hearings officer's written decision was rendered on September 13. The hearings officer found at her decision that the appellant was not a party to the administrative decision, did not and was not entitled to appear or present written evidence to the county for consideration in the administrative decision, based on the fact that the hearings officer believed that the site plan decision was handled as a development action, meaning it wasn't sent to anybody but the applicant and the planning commission, which does not require notice of an application or a decision to adjacent property owners. The decision was, in fact, handled as a land use action, and notice of the planning director's decision was indeed sent to the appellants in this case. A part of the record in her file was not correct with regard to the planning director's decision. This error in the file was not a fault of the hearings officer, it just happened. I can't explain it. The record indicated that we didn't send notice to adioinina property own-:rs. v?• c -n in pact %•.-c did. And I _ It just happened. The hearings officer also found that the appellants were not entitled to -notice of the decision as the property was beyond the 100 foot notice requirement of the county procedures ordinance. Due to the error with respect to the appellant actually receiving notice of the planning director's decision, and the appellant's statements that they are adversely affected or an aggrieved party, the Board elected to hear the appeal today of the hearings officer's decision. The appellants have brought four points or reasons in their appeal that they believe show the hearings officer erred in her decision that she rendered. The first point that they brought up is that they believed they had standing to appeal the planning director's decision. The planning staff believed that appellants are correct in this conclusion based on the fact that the appellant was sent notice of the planning director's decision and that the appellant could make the argument -- possibly make the argument — that they are an affected or aggrieved party, given the history of the Wal-Mart site. The second point that they brought up is the challenge they made to the hearings officer that she disqualify herself from hearing the matter based on her involvement in the Wal-Mart project as the former community development director for Deschutes County. The planning staff believes that the hearings officer adequately considered the appellants' challenge at the hearing of her ability to hear the matter in an unbiased manner and believed she acted appropriately in hearing the appeal. The third point in the notice of appeal was the issue of the 120 -day review period not being met with the county's review of the Wal-Mart garden center's site plan. Staff does note 0149— e,3 that this site plan pra'ess is well beyond 120 days. We felt it w2s more of applicant than the appellant. We just, in this instance -- Bruce [White] may disagree -- but we feel this is not a significant issue since the garden center is closed and more than likely won't be reopened until spring of 1996. The fourth and final point in the notice of appeal is the appellant's claim that the site plan application for the garden center is subject to and dependent upon the underlying conditional use permit for the Wal-Mart store, would be modifications of conditions also included. The planning staff concurs with the hearings officer's findings on this point in that the appellant stated no statutory or ordinance authority or case law supporting this argument. The hearings officer found that she had no authority to stay the proceedings on the site plan. Staff also notes that on the notice of appeal of the planning director's decision, or the notice of appeal of the hearings officer's decision, the appellants made no statements or findings with respect to the criteria of site plan section or how the applicant failed to meet the standard listed in the site plan section. With these kind of findings or statements missing we feel that the appeal is substantively lacking. Staff recommends that -- to the Board of Commissioners -- that the appellant's appeal of the hearings officer be denied and that the Board affirm the planning director's decision for the Wal-Mart garden center. Did you have any questions? BRUCE WHITE: I just have one. Did you state which criteria applied then? UNKNOWN: Oh, thank you, Bruce. As required by ordinance, I need to read the criteria. They are Chapter 19.52 of Title 19 of the county code, the highway commercial zone, chapter 19.76 site plan review, and was restated in our written decision on the garden center. We felt the only applicable criteria in that chapter was 19.76.070(D), pedestrian and vehicular 0149-CC"104 circulation and parking. Also, off-street parking and loading -- that is chapt— area general plan, and also Title 2 of the county code procedures. UNKNOWN: Title 22? PAUL BLIKSTAD: Yeah. UNKNOWN: Any other questions? BRUCE WHITE: I guess one thing I would note on the issues that were raised, there was an issue that the hearings officer was biased. I think that issue became mooted given that they're here before you today, and it is my understanding that this is -- is this a de novo review? UNKNOWN: Paul? PAUL BLIKSTAD: Yes. A de novo review, so any procedural errors below are basically mooted by and can be given another hearing before you. CHAIR: All right. Are we ready to go? With that I will open the public hearing. BRUCE WHITE: Commissioner, you have expressed an interest in limiting — CHAIR: Yes. BRUCE WHITE: -- the time. I guess maybe we ought to find -- maybe we should find out who is intending to testify here. Can we ask how many folks for the applicant are intending to testify or provide testimony? ANTONIA DE MEO: Your honor, I am here as an attorney for Wal-Mart, and it is my intention that I will probably be the only person speaking, unless something unexpected were to come up. CHAIR: And how about, then, for the Franklins? 0149-cc�J DAN VAN VACTOR: Mr. Chairman. I am Dan Van Vactor. Pm herea. Fran Franklin. Fran would like to speak to the Commission, and I would like to audresy ol, Commission as this state — Paul did not plan to address the Commission — it would depend on whether or not something else came up during the hearing. CHAIR: So there is two, is there not? BRUCE WHITE: The Board -- the Chair expressed an intent or an interest in limiting people's comments to three minutes. I don't know whether you still wish to do that or not. CHAIR: No. I think we can lengthen that, but I don't want to go over for a long time. I think that's ridiculous. Ah, I will kind of wave to you or something when I think you've spoken long enough. All right, I open the public hearing on this issue. Is there anyone here to speak on the -- wait a minute, I said that earlier -- for the applicants first. ANTONIA DE MEO: Good morning. My name is Antonia De Meo, here on behalf of Wal-Mart. I am going to reserve my comments for the time following Fran Franklin's presentation in order to make this go a little bit faster. I think that the planning staff has adequately addressed all of the preliminary matters, and I'll keep it brief. CHAIR: Ah, now is the time for the appellants. DAN VAN VACTOR: Thank you. For the record, I would like to point out that that was Antonia De Meo speaking on behalf of Wal-Mart, as legal counsel, and as I understand her testimony, she is submitting no additional testimony for the Commissioners' review in meeting their burden of proof -- Wal -Mart's burden of proof. — (tape inaudible) DAN VAN VACTOR: Let me approach the commissioners. I have a memorandum to submit. The original was signed -- (tape inaudible) -- I'll give a copy to each of the commissioners. And I'll give a cony to [opposing counsel]. Probably the logistic, Vi%lp do this in three minutes is just near impossible, and I appreciate the Commissions' deli--i:ence to expand the scope of the testimony. I would point out that PL 22 does provide for reasonable - - a reasonable allowance of time, and it would be my suggestion to you that we could not do this in three minutes. I'll also point out to you as a matter of law what a hearing de novo is, and a hearing de novo, at least by the case law under LUBA has adopted BLACKS LEGAL DICTIONARY definition which states, "Generally a new hearing or a hearing for the second time contemplating an entire trial in the same manner in which the matter was originally heard and a review of previous hearing. On hearing de novo, the court hears matter as court of original and not appellate jurisdiction." So I submit to you that our appellate issues are totally -- they are relevant as part of the record, but there is nothing about this hearing that has limited the scope of those issues raised in those notices of appeal, by my understanding of what is a de novo hearing. -- (tape inaudible) BRUCE WHITE: Well, I believe he is correct to say that he's not limited to the issues raised in this notice. The Board does though, under its procedures ordinance, have the right to not take "redundant["] testimony if it is already in the record, so -- we certainly will try not to repeat any testimony. UNKNOWN: I want to just clarify what we are listening to. What we're hearing right now is a de novo hearing on the Garden Center application. BRUCE WHITE: That's right. UNKNOWN: Period. BRUCE WHITE: That's it. DAN VAN VACTOR: Yes, we are, and the most important thing in r, would be for you all to understand the purpose behind your site plan ordinance, v ;,dci► n 19.76.010, and I draw your attention to the last sentence of that which says ["]in considering site plan the planning director or hearings body [which is you] shall take into account the impact that the proposed development on nearby properties values -- or on the capacity of the street system [which would be Badger Road in this case] on land values and development potential of the area [land values being the Blue Spruce Motel] and on the appearance of the street and community.["] Now, I think that the appearance of the street and the community -- that language -- that whole concept — is the key to why we are here today. The purpose behind trying to talk with each of you today is that a conditional use permit approval that relates to this same subject property, it was determined by the Deschutes County Public Works Department and the Oregon Department of Transportation that a road needed to be built that basically took a portion of the Franklins' property. And it is that condition, that requirement of dedication, which has been ignored once again by the applicant in trying to apply for this site plan. What this applicant has done is simply tried to pretend that the site plan ordinance somehow or other doesn't need to be met. The somehow or other that we don't need to deal with the impact of this development, which we consider to be cumulative. That is, if the Garden Center brings one more car than it would have before, which certainly is an admission in the record because they wouldn't be doing this unless they were trying to entice additional business, if it is cumulative, it brings one more car, and that impacts the surrounding property. It impacts the Blue Spruce Motel. It impacts the public facility of the street. And this commission cannot now ignore or walk away 010- C C3 from their responsibility to once and for all make a decision and make a deeisioI 01- not .not the impact of this development on this property is in fact in violation of tl�is orwnancc ai,u this purpose. It is not so simple. The staff would have you believe that only Section D of your site plan ordinance applies. Let's read on to statute 19.76.030 which states that when a site plan is submitted -- if a site plan is not submitted -- it will be found in non-compliance and constitute a zoning violation. By their own admission of the applicant, they built this Garden Center before they applied. There has been no action taken by Deschutes County to cite them for a zoning violation. Why? We don't know the answer to that. Further, when they do apply under the 19.76.040(C), it says the planning director or hearings body shall approve or disapprove with or without conditions. What they have done is that before they can do that the planning director or hearings body shall find that all provisions of this ordinance are complied with. Now, I don't know how the applicants can bring this into you and not direct purpose under this ordinance. What is the impact on this adjacent property? What is the impact on property values? This is not some kind of a hidden agenda by the Franklins with Wal-Mart. This has been the subject of way too much debate -- way too much discussion -- and frankly way too much legal expense for all parties concerned, and the reason that it has is just as simply shown as it can be by the arrogance of this application. Look at this application, it is in fact in your packet. That application says, and I quote, "Please accept the attached plot plan for our temporary Garden Center corral. This plan will be effective immediately through August 31, 1995. This temporary expansion corral will be there for the purpose of holding bulk quantities of soils, landscaping supplies, trees and shrubs. No permanent fixtures of buildings will be 0149-064 9 erected." That is t .e sole evidence before you submitted by the applicant that is c --n if comply with the purpose under the site plan ordinance, and the purpose agoA*a requ:U..a when you consider this, to determine what the impact of the proposed development is on nearby properties, on the capacity of the street system, on land values, and development potential of the area, and the appearance on the street and community. Now I would ask you -- all of you -- to take note of this exhibit which shows the street belt right up to the Blue Spruce Motel on the backside. Because we stopped there. That's how we stopped. And the reason we stopped there is because Wal-Mart was unwilling to acquire this piece of property as required under their original conditional use permit. They are still unwilling to acknowledge their responsibility even though the site plan ordinance requires it. How can the last phrase in this purpose be met? The appearance of the street. We have frankly a mess out there in Deschutes County. We have a Bend Area Plan that I'll get into that deals with Highway 97 and its importance and the transportation. Somehow or other Wal-Mart has got to accept their responsibility in this process, and until they do, under these site plan conditions they should be required to have no further approvals and increase no cumulative affect. There are a series of standards that you could apply. One of them is in F and one of them is in G in the Site Plan Approval. In F you are authorized to do the following, and I quote, "Dedication of land for the creation or enlargement of streets where the existing street system will be impacted by or inadequate to handle the additional burden caused by the proposed use." Well, I submit to you, all three. But for Wal-Mart, Badger Road would not have been improved. But for Wal-Mart, the Franklins' property would not have had to have been 07, dedicated to accommodate Badger Avenue. And but for Wal-Mart and this erpar j as much as that original permit, Wal-Mart had one alternative when they v _,_.ezc conditional use permit and didn't appeal it, and that was to go to the Franklins and. buy their property and live up to their cooperative improvement agreement and live up to their agreement with the county and their development agreement. They haven't done it. So to just reward them on the basis of a simple paragraph and a simple drawing — I think you have the drawing -- this is Wal -Mart's definition. That's Wal -Mart's definition of impact on streets under the purpose of your site plan order. That is how seriously Wal-Mart takes their burden of proof. The hearings body shall take into account the impact of this proposed development on nearby property. That presumption is that there is no impact. Well I can tell you — and Fran Franklin can testify. this morning -- I am going to testify to you this morning -- and believe me there is impact. If there is one case in Deschutes County in the history of this county from which there has been impact on a private property owner in the 23 years I've lived here, it has been the Blue Spruce Motel and their owners from the development of Wal-Mart. It can't make a finding there is an impact on this property. In G it says you can find that improvements including, but not limited to, paving, curbing, installation of . traffic signals, and constructing sidewalks or the street system which serves the proposed used where the existing street system will be burdened by the proposed use. Clearly Wal-Mart has acknowledged the burden on the street. That's why they entered into the development agreement, which is part of this record. They knew they had to build Badger Road. That was the condition of their approval. They just didn't like the consequence of having to buy from a private owner that private owner's property at that private owner's price. That's what they didn't like. That's why we have been here for L�, almost two years trying to talk with you guys. Trying to get this issue on, is they are under the Site Plan Application trying to hide again. I think when you look at the most important parts of D, again the part. that staff acknowledges -- that they had to comply with -- there is no way that you can make a finding under the evidence that we're submitting that this site plan is designed to promote safety and avoid congestion on adjacent streets. How do you do this as represented by this picture, build an intersection that is 10 feet too narrow, install a traffic light, allow trucks to jump the curb, build a road and a curb within five feet of the front door of a motel unit and comply with Section D, designed to promote safety and avoid congestion on adjacent streets? This is their original site plan conditional use permit requirement that they haven't complied with. They're cumulating their effect. They're adding to it. I've got two minutes. Thank you, Mr. Slaughter. I am going to not go through the Bend Area Plan because it's in the documents. They have not addressed the Bend Area Plan. There is probably 10 pages here of issues that need to be addressed before they can deserve an approval of this application. I am not going to read to you again the purpose of the Site Plan Ordinance, but I am going to ask you as Commissioners to take your job as seriously as I know you do in applying it to the hearings body. I am going to ask you to review this Site Plan Ordinance which is attached here, and you can take a look at it. And now, I am going to raise another issue with this hearings officer issue, and I think it is a very important issue for you all to decide because we have another case coming that -- from LUBA -- on this modification. Fran Franklin has asserted that Karen Green -- because she was the Planning Community Development Director at the time the Wal-Mart conditional use 0149-C CZ2 permit application was received and acted on by staff -- that shn had an obti- herself for bias. Karen Green refused to do that, and we got a decision that did not even address the merits of this application. BRUCE WHITE: But you are here today, and I guess my advice to the Board is that that issue is moot as far as this application is concerned. If another application comes back, it can be raised at that time in that hearing. DAN VAN VACTOR: But the damage will be done if you don't rule on it as part of this proceeding and give us guidance and direction for the future. There are alternative hearings officers. The last issue. The City of Bend has annexed Badger Road. You need to know this. The City of Bend has annexed Badger Road. It is not the jurisdiction of the County. Wal-Mart has signed a consent to annexation. I don't believe the County even has jurisdiction on this whole mess. And they won't. BRUCE WHITE: Just a point of clarification. Are you saying that — has the Wal-Mart site been annexed into the City at this point? DAN VAN VACTOR: I am saying that portion of it governed by the conditional use permit involving Badger Road has been annexed. This site plan requires addressing that road. BRUCE W=: But the site itself hasn't been annexed. DAN VAN VACTOR: No. No. The site itself has not been annexed, but thd road — Badger Road — has, as I understand it, been annexed. The Blue Spruce property has been annexed, and I believe there is an enclave -- and I will submit this map as evidence on that issue -- and Wal-Mart — which I obtained from the City this morning -- Wal -Mart's marked in purple, 6JA9.CC-- and Blue Spruce and Bader is marked in black ink. I «pili withdraw from -- 0- -- would ask that Fran Franklin be allowed to testify to you. -- (tape inaudible) FRAN FRANKLIN: Well, I'll just do my best. OK. Can you wave your -flag? Let me give you -- don't count this — (tape inaudible) -- First of all, I want to address an issue of safety. I can give any of you a copy of any of this that you would like to have later. But this is what is currently -- (tape inaudible) -- Ok. On our corner on Badger and 97, ODOT, the County, the City -- it is throughout the record -- dozens and dozens of times, Badger Road is the key access to Wal-Mart. It must have the signalization: It must be 28 feet. It must be a 55 foot radius. You cannot open your store unless this is done. There is a letter on April 29, 1994, stating you cannot open the store until this is done. What we have now is a corner that is operating at 200 plus percent of capacity. It was supposed to have a 55 foot radius -- for reasons that are amazing, if you read the record --_it was reduced to a 25 foot radius for Wal - Mart's 7,125 new trips to course around that corner. It has impacted us terribly. But this is the proof. Even one car -- 70 to 80 percent of the traffic -- is expected to come from the north. Here it is. Two hundred plus percent under capacity already, and they want to add something else to it. Bob Heckman, the permit specialist from Oregon Department of Transportation, said that corner does not meet state specifications. Will this, as completed, comply with this permit number 240? In answer to the original question, the answer is no. The corners on Badger Road require a 55 foot radius for full operational function and for safety. UNKNOWN: Can I just get some clarification? Are you offering that then for the record? DAN VAN VACTOR: Yes, we would. FRAN FRANKLIN. Yes. VV DAN VAN VACTOR: Offer everything that we talk about? FRAN FRANKLIN: Ok. Oh, here we are. Wal-Mart proposes an approximately 7,924 square foot entity. Forty four spaces, 9 x 20 -- (tape inaudible) -- Now, the City told me how much the space is. That is the best that I can calculate. Now there are many ways to calculate, and you have only given me five minutes, so I can't tell how you right this is, but they are reasonable figures. That represents about a 6 percent increase or approximately another 495 new trips around that corner. Wal-Mart -- the hearings officer mentioned that because of it — it shouldn't really impact the streets. If you will look -- the things that Wal-Mart has not done - - no matter where you place that corral, there is going to be at least 400 to 500 -- 300 to 500 new trips a day. And they were supposed to have large 6 x 10 white directions areas [sic] in their parking lot directing them towards Badger. You can't find them. In the conditional use permit they were required to use a special different material guiding people to the north to Badger Road exit. I can find no such material. I won't go on with the things that have not been complied with. But above all, the bottom line is here we're putting additional traffic on a corner that is already under capacity beyond belief. Now, I want to just briefly show you what happens — I don't know if you can hear me or not — but when traffic -- when traffic comes on the road here what happens now is that on a busy day you can't — there is no way when the stop light is impacted-- you cannot get into our property. And did Wal-Mart know about this before the conditional use permit? There is no question. This map up here is 1/7 of 93 a 50 foot radius. The state tried innumerable times to have them put the structures on the map. They wouldn't do it. They never complied. Their permit has never been completely complied with. There's the reap. Trey took b fe�e t more off of our sine for no reason wi hout a variance. rc foot off the side to the south just because there was a curb over here. The thinL. :-;cat toad happened to us in this whole process is absolutely disgraceful. CHAIR: Fran, one more minute. FRAN FRANKLIN: Ok. I'll leave these with you. This is our, protection. Our protection was your site plan permit which required them to show existing and proposed conditions which they never did. They never complied. They never told anyone they were coming 22 feet under our buildings. Not once. I don't think the hearings officer would have given them the permit had they done that. Here. 19.100.030, 19.100.040, 19.100.060. I wish that you would read these. These guaranteed, and they provided a prior duty from the County and a prior duty from Wal-Mart to protect us. And my last thing will be, where are we today? I just want you to see this one thing. The need for Badger Road was triggered by Wal-Mart. This is from ODOT, Bob Bryant. The need was triggered by Wal-Mart. These documents say Wal-Mart can't trigger us injury or damage. This is our small motel. We have finally managed to paint it, but we want -- here is our protection -- (taps microphone saying "this thing is driving me nuts"). Our business has gone down unbelievably"during the very busiest times when we ordinarily would have great traffic and good year -- our business in July -- we ordinarily rent overnighters — we had to go back to weeklies. In '93 we had $9,800 almost $9,900. We are down to $7,051 in '95. Our business has been damaged — this transitional — we cannot sell our real estate. It is in limbo. There's no way. If you would like explanation, I would be delighted to explain to you why we cannot sell as it is. Our Badger Road is closed and for no purpose. Look at the -- (tape inaudible) — There's nothing out here. Here's a curb in the back of our place. It goes no place. There was no reason for the County to se -1 off ew �ie -- ins , the west side. No reason at all. CHAIR: We've got to stop, Fran. FRAN FRANKLIN: OK. May I just do these last three. Our constitutional rights. CHAIR: Are you submitting that in evidence? FRAN FRANKLIN: You may have this if you like. I'll just make a copy of it. But our debt is now up to $225,000, just protecting our constitutional rights. We ask the County Commissioners -- not the staff — because they have obviously had a different directive — different position -- but we are asking the Deschutes County Commission to enforce these permits not to allow the Garden Center, and we're asking you for your help. We can't get it from anybody else. We will take this, and make a copy and return it to you. CHAIR: Thank you, Fran. FRAN FRANKLIN: Thank you very much. CHAIR: OK. Is there anything more for the appellants. If not, let's limit to very short time, the rebuttals. ANTONIA DE MEO: I'll try to be brief as possible. I am Antonia De Meo, again. First, I would like to point out to the Board that although this is a de novo hearing, that does not mean that we bring up brand new issues that have never been raised before. We are here on the same issues with an opportunity to present additional testimony. We would recommend that if you have any questions that you ask advice from your county counsel, who we believe will confirm what I have just mentioned to you. I also want to say preliminarily that one of the reasons why Wal-Mart did not plan on presenting any additional testimony here today was n o h, l �,.�e Frere rel.yir: on the fact ?h..t t �s � ���. .a be z h:�rang based or. the iss�,cs thy+ . presented before, and that we do have a record from our hearing below that we believe is sufficient on the issues that were raised before. There were four issues raised in -the- notice of appeal. The majority of the testimony that you have heard here today from appellant does not address those four issues. The four issues were standing, bias of the hearings officer, whether or not the Garden Center permit is dependent on the underlying permit, and the fourth issue was the 120 -day rule. Most of this testimony does not address any of those. We are way beyond the scope of what we are here on today. Because of that, I want to ask that the record be held open so that at least Wal-Mart has an opportunity to respond in writing to the memorandum that was filed today. We were not notified that there would be such. We would like an opportunity to hold the record open. I am going to address very briefly the four issues that were raised. As to the standing issue, I would like to point out that the statute that has been cited in the notice of appeal states that is has to do with a hearings officer decision that has been offered without a hearing. We had a hearing before the hearings officer and we would argue that the adversely aggrieved standard does not apply, that that statute is not applicable here because there was in fact a hearing. Secondly, as for the bias, I agree with you that that issue is moot upon this hearing here today, but if in fact you decide you need to address it, I would like to cite a case for you. It is an Oregon Court of Appeals case, Knutson Tow Boat Co. v. Oregon Board of Maritime Pilots, 131 Or App 364. It clarifies there is a difference between bias and conflict of interest. The only issue raised below was bias. What's really been argued in the notice of appeal is conflict of interest. Nevertheless, on either issue it cir--s not apple to this circnrr '- -; 2F Jaren Green was appropriate in hearing the matter. This case sets out very cleaiy ural mete is no issue to that here. As to the third issue, we're at the 120 -day rule. If you look at the statute, this comes from ORS 215.428(7). That explains it is really Wal-Mart that would have the right to challenge the 120 -day rule. In fact, if we wanted to, we could get a writ of mandamus and request that there be a final decision. We have not chosen to do so. There has not been any harm to the appellant on this -- only potentially to Wal-Mart. We're not challenging that. Lastly, in terms of whether or not we are dependent on the underlying CUP, this is not dependent on the underlying CUP. The underlying CUP is not, in fact, being challenged. What is being challenged in the circuit court action and the pending LUBA action is the modification, not the underlying CUP. We are on different matters here. Nevertheless, the Garden Center permit is very limited. It has to do with a corral in the parking lot. All of these issues that have been raised here today don't have any relevance to the Garden Center permit. I also want to point out that at the under -- at the hearing that we had below, Wal-Mart did raise that there were substantial defects in the notice of appeal in that the notice of appeal below did not address the specific criterion. Appellants have had more than sufficient opportunity to address those criterion. It is not raised in their notice of appeal, and today. is the first that we have heard any objection to the actual criterion that would be applicable here, and Wal-Mart has presented evidence into the record at the prior hearing that would indicate Wal- Mart has sufficiently complied with the criterion that are applicable to the Garden Center permit. That's all the comments I have for today, as long as we would have the opportunity to submit additional matters and the record be held open. Thank you. DAN VAN VACTOR: I think the important thing to remember is that D,, us County adopted the ordinances. Wal-Mart came in and applied them to the ordinances. Wal -:Mart has the burden of proof of proving their case to the ordinances. The people who have appealed here simply have the right to point out to you that that hasn't been done. This was a de novo hearing. They had every opportunity to prepare and deal with your existing ordinances. They chose not to do that when they filed it. It is that kind of arrogance, and it is that kind of seemingly unwillingness to address these ordinances that has caused us to come to you again today, and we will continue to keep coming until somehow or other this matter gets resolved. I would object to any -- maintaining that this record be kept open. I think Ms. De Meo had an opportunity, but as she indicated she did not want to submit anything additional, she's simply trying to do it in rebuttal. It is their burden of proof. Every story has an end. This one ought to end today when we close this hearing. CHAIR: All right. PAUL SPECK: Mr. Chairman. CHAIR: Mr. Speck. Sir. PAUL SPECK: Thank you, Mr. Chairman. My name is Paul Speck and I am here also on behalf of the Franklins. With regard to the issues that are properly before you, as indicated, it is a de novo hearing and the presentation made by Mr. Van Vactor and by Ms. Franklin were made under our allegation number four in that the hearings officer had erred in refusing to recognize the application before the body was subject to and dependent upon underlying conditional use permit. In other words, this site plan would not exist but for the underlying L,19-CCO conditional use permit. As a consequence -- UNKNOWN: Are you saying there is some other criterion other than %,,,hat'2 li .i_ i related to the first conditional use permit that has to be satisfied? PAUL SPECK: Ok. What I'm saying is that we have an unresolved issue as it relates to the underlying conditional use permit that still has to be considered and that unresolved issue is the modification of the conditional use permit. LUBA has decided that the planning director improperly modified the conditional use permit. What that leaves is a present status that there is no modification. UNKNOWN: That's under appeal, isn't it? PAUL SPECK: And we believe the case law in the case, that there is no modification at the present time. And as a consequence, the original conditional use must be in force, and that means, i.e., that Wal-Mart has to acquire the property. That was one issue. On the bias issue there's a couple of different ways of looking at it. What we want to make clear is -- Mr. Van Vactor and myself — have the most respect for Ms. Green's administrative capacity, her capacity as a hearings officer, and her capacity as an attorney. The problem is — and this is what we're trying to get rid of -- the problem -- is that she was the community development director at the time Wal-Mart had made its application. Unfortunately, that puts her in a position, if she is asked to decide these issues, of making a decision on something that she's already prejudged, or she has already talked to staff about, and what that creates is the appearance, or the potential for the appearance, for impropriety. So it is only fair to her, as well as to the Franklins and to Wal-Mart, that she be not asked to do this. I think that's only fair. G11 9—cc l The- final issue that I wanted to address is the fact teat the road issue is stili N�c.Y-�, te alive. It's a problem. It's one of those things I know you want to go away. V'e want i. „ away just as bad as you do, and you've been frustrated -- we've been frustrated.- The bottom line is -- and I'll just say it and I'll sit down — Wal-Mart made an application. Wal-Mart provided you, or was supposed to provide you, with the information necessary to make that decision and to make it properly under the existing ordinances. Wal-Mart did not provide you with that information. They knew over and over and over that they had to address Badger Road. If you go back to the record, it's constant. The City -- the County -- County Public Works -- everybody tells them you have to do that. The information that they provide you doesn't show what's going to happen to the Blue Spruce Motel and, as a consequence, the hearings officer makes his decision. He doesn't know that this much property has to be taken. Wal-Mart, knowing that, agrees. They agree. We agree. We will make this dedication. Then what happens is after they make that agreement, there is some superfluous efforts to acquire the property, and then they say we can't do it. We want the County to solve the problem for us. They go to you. Somebody gives you the advice that we should help 'em out, or we have a legal obligation to help 'em out, and that wasn't true. At no time was that true. It wasn't true then. It's not true now. And you can, right now, tell Wal-Mart, look, as relates to this application, you want to get a Garden Center approved. You previously agreed that you would acquire the property that would be necessary to meet the safety issues that the County has as a result of your development. There's nothing, absolutely nothing in the record that indicates that prior to the time that Wal-Mart went to this property, that you had to do anything with this road. So now you can tell them. you can say you agreed, it's not our problem. Wal-Mart, you solve ._........... _ your own problem. This is the time to. do it. Thank you very much. CHAIR: Thank you, Paul. With that, I Nvill close the public lie -2i nI BRUCE WHLTE: I think what you're doing is y cu're closing the hearing- for offal testimony. The question is whether you're going to be holding the record open. You have a request before you to hold the record open. CHAIR: I will ask the other Commissioners what they think about that. UNKNOWN: We should hold the record open for 10 days. UNKNOWN: How about until the 15th? UNKNOWN: For further written -- UNKNOWN: Written testimony only. UNKNOWN: OK. And how do you want to structure that? UNKNOWN: The 15th is a Friday. Ten days from now. Five o'clock on Friday the 15th. Is that all right with everybody. BRUCE WHITE: OK. Let's just try to clarify what we are allowing to be submitted. UNKNOWN: I have a concern in that part of the testimony that we just heard is apparently under litigation. Now, is this being accepted as new testimony regarding the Garden Center or is this a rehashing of something that is currently under litigation? BRUCE WHITE: Well, I think that's what prompted my question about where in the criteria of 19.76 were they addressing anything that was in Chapter 19.276, and- that is something that this Board will have to decide; to what extent some of that is relevant or not relevant. I think that the applicants have asked for the record to be held open for additional testimony because they believe that testimony has been offered that went beyond the scope of 0149-CC3 the four issues identified in the notice of appeal, and they want a chance to rebut that. f to review that. Ncw, I guess the next question comes up -- and this is always problemati c these things --w _ _:... -- do the Franklins get a right then to respond to Wal -Mart's response? We get into these leapfrogging responses and where does it end? UNKNOWN: I think the opponents have addressed where they feel they have been adversely effected. Would anything that Wal-Mart respond add anything to the adverse effect? BRUCE WHITE: Well, I think Wal -Mart's response.would be directed, for example, the appellants have identified various conditions -- ah, comprehensive plans and requirements starting on page 10 of their memorandum where they indicate apparently -- obviously staff hasn't had a chance to read this -- where certain aspects of the comprehensive plan have not been complied with. Now there may be issues -- apparently staff believes that those were not applicable -- there may be issues as to whether they are applicable or not, and I suspect that Wal-Mart wants to -- UNKNOWN: Ten days is what we're giving for written testimony. Can you review that? BRUCE WHITE: Staff can review it, and I believe that Wal-Mart will probably be wanting to respond to that in their memorandum. So I guess what we believe the time left — the record remaining open for them to respond to what they heard today beyond the four issues and what was in this memorandum. UNKNOWN: All right. UNKNOWN: Ben? 0-11 9-C UrA DAN VAIN' VACTOR: I. % could just ask the same courtesy that's being -ranted Wal-- 14art. They're being given 10 days to respond. Will we be given 10 days to respond to diem The record be closed, and that's it? That would be the normal occurrence that would occur. UNKNOWN: Ten on top of ten? DAN VAN VACTOR: Five. Ten. Whatever you want to give us. But we need the right to respond to whatever they say. ANNE DAVIES: Then do we get the right to respond to yours? DAN VAN VACTOR: No. UNKNOWN: It has to stop at some point. BRUCE WHITE: Well, that's what I said. These things become problematic because this leapfrogging. UNKNOWN: I think that we go to the 15th and then we maybe, if we need to, we can look at it at that time. BRUCE WHITE: Well, I agree that under state law parties have a right to rebut each other, and it just becomes a real problem of how to structure it. And -- UNKNOWN: Well, can we go to the 22nd for rebuttals to rebuttals? Well, we've only gone about four years on this thing so we might hang it on for a little longer. (Tape inaudible) UNKNOWN: Mr. Chairman, could I ask legal counsel just for his own purposes to review 22.24.130, 22.24.140, and 22.24.160? That may provide the answers, and I'm not in a position to say technically what it says right now, but that may help him. • 1. 0:i 2s FRAN FRANKLIN: Nothing would make me happier than to have it over. Nothing in my whole life. CHAIR: You too? FRAN FRANKLIN: It doesn't mean as much to you as it does to me and my family. UNKNOWN: I guess if what we limit it to is Wal -Mart's right to rebut what was in this document then there ought not to be any need for any further rebuttal by the Franklins if it goes beyond -- and then I guess we just won't consider anything that goes beyond plain rebuttal. UNKNOWN: OK. UNKNOWN: I think maybe that's the easiest way. UNKNOWN: Again, we are just addressing the four issues of the appeal. UNKNOWN: No. BRUCE WHITE: I don't believe that the appellants are limited to what is raised in their notice of appeal. We've never construed the ordinance to say that we require them to set out what their issues are to help staff, but we have never said that they are limited to just those issues. So, I think the Franklins are right in that regard. I am just trying to make this so it's manageable. (Tape inaudible) NIPPER: Too late, Bruce. You already gave me an Excedrin headache. UNKNOWN. One other issue is there have been exhibits that have been offered. I really think -- I know that Ms. Franklin wants to make copies of them -- but they have been offered and I think they have -- UNKNOWN: You and I can meet and do that. a sa r 29 UNKNOWN: I can get some copies of the -- I mean I have -- I just want to make a copy of -- because I didn't make -- I've lost them in the car -- I didn't know what -- was supposed to give 'em to you or not -- Yeah, but because -- UNKNOWN: I have lost them. UNKNOWN: We don't need them once they are entered as evidence they -- UNKNOWN: They need to stay with us because they are part of the record. UNKNOWN: I glad you have to talk about -- I'll be glad to leave. UNKNOWN: You are free to come in to review them, and maybe Mr. Van Vactor and I can make arrangements for that to happen. UNKNOWN: Ok, that would be great. UNKNOWN: Are there any objections to what we have just -- UNKNOWN: No. 1I1Q1,i�Zi UNKNOWN: All right. Thank you. We are adjourned until this afternoon. UNKNOWN: Are we adjourned? UNKNOWN: We are adjourned until the -- 2 o'clock tomorrow afternoon. UNKNOWN: Oh, I thought — (tape inaudible) END OF TAPE uA 12425.1\hrg-tmn.adm