1997-06241-Minutes for Meeting December 11,1997 Recorded 2/20/19970156-1472
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EXCERPT FROM MINUTES
DESCHUTES COUNTY BOARD OF COMMISSIONERS -..
December 11, 1997 --
CD
1. PUBLIC HEARING: ON REOPENING THE RECORD ON THE COSGRAVE
VARIANCE FILES •A-96-12
Before the Board of County Commissioners was a public hearing
on the reopening of the record on the Cosgrave variance files
V-95-11 and A-96-12.
Damian Syrnyk reported this was a reopening of the record on
variance V-95-11 and appeal A-96-12. The applicants in this
matter were John and Jennifer Cosgrave. The subject property
which was subject of this hearing was located at 63225 Lookout
Drive, and identified on Deschutes County Assessor's map
17,114 as tax lot 1200. The hearing was being held to
consider any rebuttal from parties regarding some exparte
contact. The notice for this hearing was dated December 5,
1997.
Bruce White reported there were some outside of the record
contacts from which he deemed it necessary to reopen the
hearing this matter. He felt it may be that the contacts were
not exparte in that they were not necessarily factual evidence
the Board received, but there were comments which were
irregular and it was felt the applicant, or any other parties,
should have the chance to respond to that statements which
were made. A notice was put together to reopen the record to
all parties to include the substance of the contacts which
were made outside the record. Bruce White listed the contacts
which were made: a letter received September 12, 1996, from
Bruce Brothers, Planning Commission member, to Commissioner
Nipper and Slaughter with a copy to Commissioner Schlangen; a
letter received from Ted Schaussberger, Planning Commission,
written to all Commissioners; a contact between Commissioner
Slaughter and Planning Commissioner Everett Turner which was
initiated by Commissioner Slaughter; Commissioner Nipper's
response to Planning Commissioner Schaussberger and Brothers
letters; partial verbatim transcript of a tape of the meeting
between the Deschutes County Commissioners and Planning
Commission that was held on October 9, 1996, (it was a partial
transcript because part of that meeting was not recorded);
included with that transcript was a copy of the agenda for
that meeting and a copy of the points that were set out by
staff in responding to comments made in that meeting; and a
summary of the contact between Commissioner Nipper and two
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0156-1473
members of the staff of Oregon Department of Fish & Wildlife
of the meeting on November 1, 1996. Bruce White further
stated that this hearing was a chance for parties to rebut by
oral testimony the substance of those outside of the record
contacts.
Bruce White added that the meeting between the County
Commissioners and the Planning Commission on October 9, 1996,
was set up to further communications between the Planning
Commission and the Board of County Commissioners. Generally
if it was not set up specifically as a lobbying session as
there was no expectation by staff that it was going to result
in anything other than ongoing communications between the two
bodies. Bruce White stated he could not comment on what had
caused Commissioner Slaughter to potentially change his mind
on this application, but that was not the intent of the
meeting.
Bruce White further reported a letter had been received from
Bob Lovlien of which the Board had copies.
Commissioner Nipper stated he took exception to what Bruce
White just said regarding the intent of the meeting was not to
change their minds. He was sorry, but he felt that was
absolute bull. He stated they went around the room and each
and everyone of them told us why we were wrong with our
decision, so what do you call that.
Commissioner Schlangen stated the Board had asked them to meet
with them to talk about communications.
Commissioner Nipper stated that was absolute baloney. The
Board of Commissioners were called boobs by Bruce Brother
because we made a wrong decision.
Commissioner Schlangen stated we had wanted to meet with them
to better communications. Commissioner Nipper said he did
too, and that was exactly why he thought the meeting was to be
held, but that was not the case at all. Commissioner Nipper
felt the reason for that meeting was to tell us that we did
not understand the philosophy of a deer winter range and a
wildlife overlay and how wrong we were with our decision.
Commissioner Slaughter stated there was one other letter from
Howard Paine which had been received today. Bruce White
stated he had not seen that. Bruce White stated he also had
a letter from Bill Boyer and he was not sure his comments were
in the nature of rebuttal. He felt Mr. Paine's letter was not
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0156-1474
in the form of rebuttal either and not appropriate to be
considered.
Bruce White reported there was a letter from Bob Lovlien which
took issue with the process.
Bruce White stated Mr. Cosgrave and Ted Weise were in
attendance and were entitle to address the Board if they had
comments to rebut the substance of the outside the record
contacts.
Chair Schlangen opened the public hearing.
John Cosgrave stated he was not given enough time to respond
to the volumes of new evidence and he had just received the
information the day before. He felt there was so much it
would take him days or weeks to prepare a response because
there was a lot he would have wanted to respond to. He
reported he had been advised by counsel not to participate in
this hearing, which was spelled out clearly in Mr. Lovlien's
letter. The one thing he added was that on a personal note,
there was a smell test here about this proceeding. He stated
that if this decision had originally gone against him, he
seriously doubted that he would have been granted an audience
to present new testimony, new evidence, new argument in an
effort to persuade Commissioners to change their mind on a
decision that had already been made, and then after that, for
the Commissioners to open the record in an attempt to
legitimize that testimony.
Bruce White stated he had a conversation with Mr. Lovlien in
which Mr. Lovlien had told him they were questioning whether
they were going to participate. He stated Damian Syrnyk was
also advised by Mr. Cosgrave that they were not intending to
participate.
Commissioner Schlangen questioned as to where the Board went
from here. Bruce White felt the Board was going to need to
revote.
Bruce White reported the packet of information was delivered
to Mr. Lovlien's office the previous Thursday, so Mr.
Cosgrave's attorney has had that information since then. Mr.
White stated it sounded as though they would not have
participated no matter how much time was given to them.
Bruce White reported the notice stated that we would receive
any comment through the end of the day. Having received
written comment from Bill Boyer and Howard, he felt the Board
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0156-14'5
had received all the written comments they were going to get
unless Fish & Wildlife was to submit something before the day
was through.
Bruce White stated the Board was going to have to make a
decision. He clarified that an oral decision was not a
decision of the County. The decision was the decision that
was in writing, and not having gone to a written decision,
there was not yet a decision in this case. He stated that in
order for staff to present to you something for finalizing the
decision, they have to know what your preliminary decision was
going to be. He felt the Board was going to need to take
another vote.
Commissioner Nipper stated he would be in Salem for a meeting
on Monday, but would be available by phone to vote on this
decision.
The County Commissioners agreed they would make the oral
decision at 10:45 a.m. on Monday, December 16, 1997.
DATED this 11th day of December, 1996, by the Deschutes County
Board of Commissioners.
f t
Nancy Po Sc Tangen, Chai
Barry H. Slaughter, Commissioner
ATTEST:
(11 "Oy-
Recording Secretary Rob rt L. Nipper, Comm sioner
MINUTES 4 DECEMBER 11, 1996