1997-37279-Minutes for Meeting July 23,1997 Recorded 10/8/199797-37279
MINUTES
0163=0608
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Wednesday, July 23, 1997
Chair Nancy Pope Schlangen called the Board of County Commissioners
meeting to order at 10:05 a.m. County Commissioners present were
Nancy Pope Schlangen, Robert L. Nipper, and Linda L. Swearingen.
Also in attendance were George Goshert, Bend Library Project
Manager; Damian Syrnyk, Planner; Kevin Harrison, Planner; Bruce
White, Assistant County Counsel; Al Driver, Solid Waste Director;
Timm Schimke, Solid Waste; Brad Chalfant, Property Manager; and
George Read, Community Development Director.
1.
2.
CONVENE AS THE GOVERNING BODY OF 9-1-1 COUNTY SERVICE DISTRICT
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Commissioner Schlangen stated this was a three month renewal
which would allow 9-1-1 to go out for bids.
SWEARINGEN:
NIPPER:
VOTE:
Move approval.
Second.
SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR 9-1-1 COUNTY
SERVICE DISTRICT
Before the Governing Body was approval of the weekly accounts
payable vouchers for 9-1-1 in the amount of $420.19
SWEARINGEN:
NIPPER:
VOTE:
So moved.
Second.
SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
CONVENE AS THE GOVERNING BODY OF REDMOND
SERVICE DISTRICT
MINUTES 1 JULY 23, 1997
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APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR REDMOND
LIBRARY COUNTY SERVICE DISTRICT
Before the Board was approval of the weekly accounts payable
vouchers for Redmond Library County Service District in the
amount of $1,280.92.
NIPPER: I'll move approval.
SWEARINGEN: Second.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
CONVENE AS THE GOVERNING BODY OF BEND LIBRARY COUNTY SERVICE
DISTRICT
APPROVAL TO EXECUTE A GUARANTEED MAXIMUM PRICE AMENDMENT TO
THE CMGC AGREEMENT BETWEEN THE BEND LIBRARY COUNTY SERVICE
DISTRICT AND KIRBY NAGELHOUT CONSTRUCTION COMPANY
Before the Governing Body was approval to execute a guaranteed
maximum price amendment to the CMGC Agreement between the Bend
Library County Service District and Kirby Nagelhout
Construction Company.
SWEARINGEN: So moved.
NIPPER: Second.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR BEND LIBRARY
COUNTY SERVICE DISTRICT
Before the Governing Body was approval of the weekly accounts
payable vouchers for the Bend Library County Service District
in the amount of $35,506.05.
NIPPER: I'll move approval subject to review.
SWEARINGEN: Second.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
CONVENE AS THE GOVERNING BODY OF SUNRIVER LIBRARY COUNTY
SERVICE DISTRICT
MINUTES 2 JULY 23, 1997
V
7.
CM
0163-0610
SIGNATURE OF RESOLUTION NO. 97-103, ESTABLISHING AN IMPREST
CASH ACCOUNT FOR SUNRIVER LIBRARY AND PROVIDING PROCEDURES
Before the Governing Body was signature of Resolution No. 97-
103, establishing an imprest cash account for Sunriver Library
and providing procedures.
NIPPER:
SWEARINGEN:
VOTE:
So moved.
Second.
SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR SUNRIVER
LIBRARY COUNTY SERVICE DISTRICT
Before the Governing Body was approval of weekly accounts
payable vouchers for Sunriver Library County Service District
in the amount of $16,528.00.
SWEARINGEN: So moved subject to review.
NIPPER: Second.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
CONSENT AGENDA:
Consent agenda items before the Board of County Commissioners
were: 1) signature of Oregon Liquor License Renewal for
Flavors Rimrock Cafe, Riverwoods Country Store, American
Legion Post #45, and Mountain High Golf Course; 2) signature
of Resolution No. 97-109, authorizing extension of Contract
with Harding Lawson Associates; 3) award of fence Contract to
Mike's Fence Center; 4) signature of Resolution No. 97-108,
approval of Demo Landfill Fire Assessment Study; 5)
authorization to waive Bid Bonds and Performance and Payment
Bonds on road sweepers and liquid de-icer purchases; 6)
signature of Resolution No. 97-106, declaring the intent to
transfer real property to Bend Metro Park and Recreation
District (Larkspur Trail); 7) signature of Order No. 97-123,
designating a newspaper for the publication of the 1997-98
Deschutes County Foreclosure List; 8) signature of Resolution
No. 97-100, transferring appropriations within various funds
of the 1996-97 Deschutes County Budget and directing entries
nunc pro tunc as of June 30, 1997; 9) signature of Resolution
No. 97-102, authorizing the acceptance of a Grant from the
MINUTES 3 JULY 23, 1997
9.
0163-0611
State Department of Human Resources and make appropriations to
the Deschutes County 1996-97 Budget nunc pro tunc as of June
30, 1997; 10) signature of Orders No. 97-107 and 97-108,
authorizing the refund of taxes; 10) signature on Deschutes
County Professional Services Contract with Vance Croney and
Wallace Lien; 11) signature on Agreement to Provide Jefferson
County with community work services and work crew supervision;
12) signature of Order No. 97-116, name change of King Jerobam
Avenue to King Jeroboam Avenue; 13) signature of Order No. 97-
117, name change of Pine Forest Road; and 14) signature of
Declaration of Dedication for a 30 -foot right of way strip off
of Pinehurst.
SWEARINGEN: I move approval of the consent agenda items.
NIPPER: Second.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
C'-ONTINUED PUBLIC HEARING REGARDING THE LDS CHURCH
Before the Board was a continued public hearing regarding the
LDS Church.
Damian reported there was a July 23 letter from Ed & Phyllis
Sink and Southeast Neighbors United, submitted by Dan Van
Vactor this morning. Damian stated he had received others
documents July 17 from Dan Vactor in which he requested a copy
of a memo that was interoffice and not public information.
Chair Schlangen stated the memo was client/attorney privileged
information.
Bruce White stated the public records law has an exception
regarding interagency communications. He preferred that his
opinion not be made a part of the record. He stated staff and
he had talked this morning about this issue.
Chair Schlangen stated the hearing had been continued to hear
Dan Van Vactor's testimony. The written record had been left
open but felt the only oral testimony would be Mr. Van
Vactor's.
Bruce White also felt the only reason the public hearing was
continued was because Mr. Van Vactor was not here and able to
participate. He stated the Board had talked about restricting
it to written testimony only, but Mr. Van Vactor would be
allowed oral testimony.
Chair Schlangen felt Mr. Van Vactor should be allowed to speak
with rebuttal from the applicant.
MINUTES 4 JULY 23, 1997
0163-G612
Arlie Holm stated he was at the podium when the Board decided
to continue the hearing. He stated he was told that he would
have the opportunity to finish his testimony. He stated there
was a challenge to the information he provided and he wished
to address that. He submitted photos. He submitted written
testimony on behalf of Chris Brown.
Ed Sink submitted photos also.
Dan Van Vactor testified and submitted exhibits 1-51.
Sharon Smith requested being heard regarding the submittal of
written exhibits.
Dan Van Vactor stated there were a couple of questions which
the record would answer. He stated he had a transcript of the
testimony on page 13 of 36A which specifically refers to
13,500 feet but does not refer to height. He stated the
13,500 feet was something which opponents could live with if
there was an irrevocable commitment that there would be no
expansion.
Dan Van Vactor stated there was nothing being submitted that
wasn't already a part of the record. It included either
agendas, correspondence between the County and Sharon Smith,
or correspondence between Deschutes County and himself. He
wanted to submit this so that if there was a dispute with the
County over what is in the record and rather than have the
risk of a disorganized file, he wanted to make sure that his
copy went into the record today so that nothing would
disappear later.
Bruce White stated we did not make a practice of making things
disappear. Dan Van Vactor stated that he understood, but some
times things like tapes in the conditional use permit hearing
before Hearings Officer Fancher disappeared or couldn't be
found in this case. So we have no record of that hearing and
that's an example.
Sharon Smith stated the reason she wanted to be heard on this
matter was because she did not have a copy of the notebook
submitted by Dan Van Vactor. She stated she had a quick look
at the list a few minutes before the hearing started so she
didn't have the knowledge to know what was in that notebook
and what is not. She expressed concern that they should be
focusing on one issue and that was the height of the building.
She felt the submittal of the record by Dan Van Vactor was
just creating more paperwork. If that was not what the record
consisted of, she requested that all that information be so.
She stated her understanding of what was in the record before
the Board today was the entire LUBA record on the original
MINUTES 5 JULY 23, 1997
0163-x613
site plan application, the entire life on all of the remand
proceedings, the entire file and tapes of any hearings, as
well as our request to reopen the record and modify the site
plan. She stated that if that was not what the record
consisted of, she would like to request that all of those
documents be incorporated by reference into the record before
the Board today.
Dan Van Vactor felt the record submitted was going to answer
some of the questions asked here today.
Bruce White stated there was nothing that wasn't already in
the record.
Bruce White stated the notebook could be accepted but not
included as part of the record.
Sharon Smith requested a copy of the notebook be provided to
her by Dan Van Vactor. Dan Van Vactor stated it cost a
significant amount of to put the notebook together and the
applicants had spent over $14,000 in this appeal process and
submitted a copy to the County. He felt no applicant, by his
knowledge, was ever obligated to provide the other applicant
with a copy of what they submitted.
Dan Van Vactor stated there were four documents that went to
LUBA. He stated #5 never went to LUBA because it was not
submitted before this case was appealed to LUBA and it was not
ever part of the site plan heard by the Hearings Officer. He
stated the April 9th document was key to the objection. His
procedural objection started with the interoffice memorandum.
He felt the first thing to do was rule on document #5 which
did not go to LUBA as to whether it was included in the record
or not.
Dan Van Vactor reviewed the history of this conditional use
permit.
Dan Van Vactor then referred to Section 18.124.060A of the
Deschutes County Code.
Sharon Smith felt the record on remand was all the things
previously listed including the site plan that was submitted
as part of the requirement from the hearings officer in the
site plan application.
Bruce White pointed out that just because something was in the
file does not mean that it was part of the record. It becomes
part of the record only when it's placed before the hearing
body and was not rejected.
MINUTES 6 JULY 23, 1997
0163-0614
Damian Syrnyk reviewed what was included in the record that
went to LUBA.
Dan Van Vactor reviewed the definition of modification.
Bruce White stated that on remand the Board had considerable
discretion regarding how to handle reopening the record or
whether it keeps the record closed. In this case the Board
initially exercised its discretion to close the record. He
felt there was an issue with respect to this document because
the record was no reopened, and there were arguments based on
the record in the May hearing.
Commissioner Nipper asked what Dan Van Vactor was looking for
from the applicant. He asked if Dan Van Vactor was looking
for them to start over with the siting of their church to
building a church or not being able to build that church. Dan
Van Vactor stated they had made an offer to commit to a 13,500
square foot building on that premise for a Mormon church if a
deed restriction could be placed on the property and it could
never be expanded. He stated that would have satisfied the
neighbors. Commissioner Nipper felt the bottom line was that
they did not want a church there. Dan Van Vactor stated there
were two choices.
Commissioner Nipper stated the Board had it down to 28 feet 8
inches for the height and it was down to where they should be
able to start building a church. He felt Dan Van Vactor was
taking it back to square one. Dan Van Vactor felt they had to
comply with the ordinances. Dan Van Vactor stated the
Commissioners were sworn to uphold the ordinances. Dan stated
that maybe that did not mean anything, but it did to him as a
citizen and it did the other people sitting here. Dan stated
the ordinances are for everybody as there was nothing in the
ordinance that says the LDS Church does not have to comply.
Dan Van Vactor stated they were here about the law. He stated
if they could reach a satisfactory agreement, they could solve
this and it could go away. Commissioner Nipper asked Dan Van
Vactor how we could solve this. Dan Van Vactor stated he had
authority to mediate this issue on the basis of a 13,500
square foot church that was subject to a deed restriction on
the property for no future expansion. He stated that was as
far as his clients were willing to go and the church was never
interested in that mediation. Dan Vactor stated that in
answer to the question of how can we get this to go away
today, he stated that was how he would agree to solve it. As
a result of the church not being willing to mediate, his
clients have requested him to go through the record, appear at
the hearing, make sure that they comply with the law and, if
they don't, take the appeal process through their process, and
then we will deal with them on the issue of impact at a
MINUTES 7 JULY 23, 1997
0163-0615
conditional use permit hearing, if their conditional use
permit has expired. Commissioner Nipper stated that Dan had
thrown at the Board on several occasions that they were sworn
to uphold the law and that the Board was suppose to comply
with ordinances. He found it interesting that in this
particular case Dan Van Vactor felt the Board should just
blindly follow the ordinances, but on the next thing you will
be asking us to ignore the ordinance.
Sharon Smith responded to Mr. Van Vactors discussion about
what settlement negotiations had taken place. She stated she
would disagree with some of his characterizations of what the
neighbors were willing to do. She stated she didn't believe
that the church had failed to try to negotiate in good faith.
She didn't think it was appropriate to go through the
settlement discussions today. She stated typically those were
not part of a land use matter. She requested the Board to
consider a partial transcript from the May 7th meeting. She
stated it addressed the issue of what the neighbors were
willing to do. She reiterated that the issue before the Board
was the height. She felt the Board needed to make a
determination of what was in the record before them. She
requested that the Board find that the site plan was part of
the record before them and part of the remand. She would like
to Board to find that the church had provided the neighbors
with what they have asked for.
Commissioner Swearingen stated that if the Board could reopen
the record, as they have done, it would certainly change the
outcome of the decision in her mind.
Bruce White stated it was his understanding the Board could
not approve the church because of the height issue. Then
there was a follow up request from the applicant to reopen the
record.
Commissioner Swearingen felt the Board had the right to reopen
the record.
Dan Van Vactor stated the applicant was obligated to bring
back the conditional use permit and reopen it. He felt they
had to do that to give a fairness to this hearings process.
Bruce White stated that they lost the opportunity to challenge
the conditional use permit. They did not appeal it. He felt
there was no expiration and that issue was not before the
Board.
Dan Van Vactor stated the conditional use permit extension,
which was in the record, specifically states the date it was
extended to or the length of time, and states there will be no
MINUTES 8 JULY 23, 1997
0163--6616
further extension of the permit. Bruce White stated that
matter had been settled and was not before the Board. Dan Van
Vactor stated it was a fact that it did expire. He felt the
new application raised that as a new issue in this case
because the Board had accepted a new application.
Chair Schlangen closed the public hearing.
SWEARINGEN: I move that we approved the
application. In the rema
found that the 13,660 square
in the record and the 28
also in the record.
NIPPER: I'll second that.
Bruce White stated the motion was an
application on remand.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
Latter Day Saints
nd process we have
feet is justified
feet 8 inches was
approval of the
11. APPROVAL OF EXCHANGE AGREEMENT BETWEEN H ERIC DOLSON AND
DESCHUTES COUNTY
Before the Board was approval and signature of Exchange
Agreement between Eric Dolson and Deschutes County.
Brad Chalfant reported this was a proposed exchange agreement
for 120 acres property located in Sisters. He reported there
had been concerns raised regarding this property by Reith and
Matt Cyrus. Brad reported a letter had been sent to the Cyrus
family in April stating the Board would be considering other
proposals on this piece of property. Matt Cyrus requested the
Board table this in order to make the exchange with them take
place. Brad reported he had never heard back from Matt Cyrus
after the letter was sent to him. He stated there was a 180
day window which gives Mr. Dolson an opportunity to secure
options.
Commissioner Swearingen requested a change in the equalization
policy. Brad stated he suggested that Mr. Dolson do that.
Eric Dolson stated he would have no problem with the County
modifying the agreement. He felt it would be to his advantage
to move along this line. He requested the Board sign the
agreement today.
Keith Cyrus stated he had owned property adjacent to this
piece in question since 1959. He stated he had pursued a
MINUTES 9 JULY 23, 1997
0163-061'7
trade with the County and felt he had proceeded in good faith.
He stated there were some problems with the homeowners.
Commissioner Schlangen asked if this was withdrawn? Keith
Cyrus stated it was put on the back burner.
Commissioner Swearingen stated she had a letter dated April
15, 1997, stating the County would accept other offers.
Commissioner Swearingen also stated she had talked with the
homeowners. The homeowners stated they would see the Cyrus'
and Deschutes County in court. She stated the County was not
interested in a law suit. She felt Eric Dolson was exercising
his right as any individual in Deschutes County could by
coming in asking for this.
Commissioner Nipper stated he had gotten a message from Matt
which stated the offer had been pulled to let the homeowners
to cool down. He didn't think the homeowners were happy.
Keith Cyrus requested the Board hold off on their decision.
Eric Dolson quoted from the letter written from Brad Chalfant
to Matt and Keith Cyrus. He felt it spelled out clearly what
the county's intent was regarding accepting other offers.
Eric would like to move forward with this agreement.
Mr. Cyrus stated his property surrounded this property and it
was nearly landlocked. He felt they could make a very good
case as to why they should have it.
Mr. Dolson stated he spoke with two of the other neighbors and
they were in support of his proposal.
Commissioner Swearingen stated that whoever comes forward has
been granted that and there has never been any properties
reserved in the past.
Commissioner Nipper stated he felt the Cyrus had pulled their
offer and we stated we would accept other offers. Mr. Dolson
had been very up front about the process.
SWEARINGEN:
NIPPER:
I move approval of the Exchange Agreement
between H. Eric Dolson and the County.
I'll second it.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
MINUTES 10
JULY 23, 1997
0163-0618
12. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS
Before the Board was approval of the weekly accounts payable
vouchers in the amount of $188,116.50.
SWEARINGEN: So moved subject to review.
NIPPER: Second.
VOTE: SCHLANGEN: YES
NIPPER: YES
SWEARINGEN: YES
DATED this 23rd day of September, 1997, by the Deschutes
County Board of Commissioners. t r-"� A
Sclil&hgen,
0
RoPbrt L. Nipper, CoRWIssioner
ATTEST:
Recording Secretary Linda L. Swearingen, Commissi r
MINUTES 11 JULY 23, 1997