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1999-121-Minutes for Meeting December 02,1998 Recorded 3/11/1999VOL: CJ1999 PAGE: 121 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Mar. 11, 1999; 3:26 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 15 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK *01999-121 * Vol -Page 03/24/1999 16:42:36 MIC-P,0,o APR 11999 i ej I q4ql- Id I MINUTES DESCHUTES COUNTY BOARD OF COMMISSIO*a11VR 11 N1 3` 26 Wednesday, December 2, 1998 Chair Nancy Pope Schlangen called the Board of Countyco KU6 ners meeting to order at 10:00 a.m. County Commissioners present were Nancy Pope Schlangen, Robert L. Nipper, and Linda L. Swearingen. Also in attendance were Susie Penhollow, County Clerk; Rick Isham, County Counsel; Mike Maier, County Administrator; Bruce White, Assistant County Counsel; Paul Blikstad, Planner; Meaghan Houska, Communications Director; Michael Gaston, Librarian; Tom Blust, Road Department Director; Mark Amberg, Assistant County Counsel; George Read, Community Development Director; and Beverly Wilson, Legal Assistant. 1. SWEARING-IN OF NEW DESCHUTES PUBLIC LIBRARY DISTRICT BOARD County Clerk Susie Penhollow swore -in Patricia Lawrence, Mary Beth Pearl, George Riser, Ann Evansen, and Ray Miao as Deschutes Public Library District Board Director. CONVENE AS THE GOVERNING BODY OF 4-H/EXTENSION COUNTY SERVICE DISTRICT 2. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS FOR 4-H/EXTENSION COUNTY SERVICE DISTRICT Before the Governing Body was approval of weekly accounts payable vouchers for 4-H/Extension County Service District in the amount of $522.31. NIPPER: SWEARINGEN: So moved. Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES CONVENE AS THE GOVERNING BODY OF 9-1-1 COUNTY SERVICE DISTRICT MINUTES 1 DECEMBER 2, 1998 3. 4. 5 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 County Service District in the amount of $1,602.58. SWEARINGEN: Move approval. NIPPER: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES CONVENE AS THE GOVERNING BODY OF BEND LIBRARY COUNTY SERVICE DISTRICT 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 $17,203.80. NIPPER: SWEARINGEN: So moved, Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES RECONVENE AS DESCHUTES COUNTY BOARD OF COMMISSIONERS CONSENT AGENDA: Consent agenda items before the Board of County Commissioners were: 1) signature of Memorandum between Deschutes County and American Red Cross for shelter care during an emergency; 2) approval of grant funded position in Madras; and 3)signature of Orders No. 98-166 and 98-167, authorizing the refund of taxes. MINUTES 2 DECEMBER 2, 1998 NIPPER: I'll move approval of consent agenda items. SWEARINGEN: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 6. SIGNATURE OF RESOLUTION NO. 98-131 TRANSFERRING FORMER BEND LIBRARY PROPERTY TO DESCHUTES PUBLIC LIBRARY DISTRICT AND SIGNATURE OF BARGAIN AND SALE DEED Before the Board was signature of Resolution No. 98-131, transferring former Bend Library property to Deschutes Public Library District and signature of Bargain and Sale Deed. SWEARINGEN: I would move signature of Resolution No.98- 131. NIPPER: I would second it. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 7. PUBLIC HEARING ON APPEAL OF THE HEARINGS OFFICER'S APPROVAL OF AN APPLICATION FOR SITE PLAN REVIEW FOR A RETAIL SHOPPING CENTER IN A HIGHWAY COMMERCIAL ZONE BY PDC INVESTORS Before the Board was a public hearing on an appeal of the Hearings Officer's approval of an application for site plan review for a retail shopping center in a Highway Commercial Zone by PDC Investors. Chair Schlangen read the opening statement. Chair Schlangen asked if the Board members had any prehearing contact. Each of the County Commissioners stated they had none. Chair Schlangen asked if there were any challenges from the audience regarding bias or prejudice. There were no challenges forthcoming from the audience. Paul Blikstad provided a staff report for the Board. He read the applicable criteria. Paul reported this was an appeal of MINUTES 3 DECEMBER 2, 1998 the Hearings Officer's decision on SP -98-5 a site plan application submitted by PDC Investors. This application was for a retail shopping center. The application was before the Hearings Officer on April 28, 1998. The Hearings Officer's decision was issued on October 22, 1998. He reported Order No. 98-171 was signed to hear this appeal de novo but limited the review to condition #2, subsection A, C E and F. The applicant has agreed to restart the 120 -day clock. Paul reviewed the issues on appeal. Paul then reviewed condition #2 with the Board. Commissioner Swearingen felt the rocks were not special and there was no need to preserve them. She felt the parking spaces could be installed and there wouldn't be a problem. Paul reported there would be over 170 trees. Paul stated items C and E were the accesses where people would be backing out in to traffic. Commissioner Swearingen asked what the distance was between the parking spaces and the street. She felt there was plenty of space. Commissioner Swearingen felt the Hearings Officer's and staff tried to micro -manage some of these developments. She felt they did not need to be landscape managers. Commissioner Nipper felt there was no need to preserve these rock outcroppings. Paul felt there should be a flow of traffic where the cars would not be turning out of parking spaces. Paul reported item F which was a loading dock for stores D and E was a problem. The Hearings Officer was concerned that trucks would conflict with the traffic flow. The Hearings Officer felt the building should be shifted by 5 feet. Commissioner Swearingen and Nipper felt there was no reason to add 5 feet for loading by moving the building. Chair Schlangen opened the public hearing. MINUTES 4 DECEMBER 2, 1998 Liz Fancher, attorney for the applicant, testified. Liz Fancher reviewed the proposed traffic flow for the shopping center. The loading zone would be clearly marked as a truck loading zone. Commissioner Nipper felt anyone driving an automobile would see the signs and would either wait for the truck or take another route out of the shopping center. Liz Fancher provided similar loading docks which seem to work well with no traffic problems. She stated there was 24-300 landscaping which was more than required. Liz Fancher submitted photos of rock outcroppings which were being save. Ken Deaner, architect, testified. He submitted two other plans to help illustrate the conditions. He stated that one problem was the loss of 54 parking spaces by moving the buildings for the loading dock, for a total loss of 71 spaces. He presented a proposal with truck loading signage and stated they were preserving a 10,000 square foot area in the middle of this development. There was actually a total of 438 trees on the site. He submitted an aerial photo with a development overlay. There being no further testimony, Chair Schlangen closed the public hearing. Commissioner Swearingen stated she had no problem with the original plan which had been submitted by the applicant. SWEARINGEN: I move we overturn the Hearings Officer's decision. NIPPER: I'll second that. Commissioner Nipper stated he agreed with Linda Swearingen in that some times the County had a tendency to over -regulate. He felt the applicant had more than tried to comply with the conditions. Chair Schlangen felt the signage solution would take care of the loading dock problem. She felt the landscape plan more MINUTES 5 DECEMBER 2, 1998 than met the criteria. She stated she also supported overturning the Hearings Officer's decision. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES The Board requested the applicants counsel prepare the decision prior to December 31, 1998, if possible. 8. PUBLIC HEARING ON A TEXT AMENDMENT TO TITLE 18 TO ALLOW A RELATIVE FARM HELP DWELLING STANDARDS IN THE EXCLUSIVE FARM USE ZONE AND ADOPTION OF ORDINANCE NO 98-033 AMENDING SECTION 18.16.050 Before the Board was a public hearing on a text amendment to Title 18 to allow a relative farm help dwelling standards in the exclusive farm use zone and adoption of Ordinance No. 98- 033, amending Section 18.16.050. Paul Blikstad reviewed the ordinance with the Board. Commissioner Swearingen asked if the condition would be removed off the deed if this was ever within the City. Bruce White stated the agreement would terminate. Paul recommended adoption of Ordinance No. 98-033, amending Title 18. Acting Chair Robert Nipper opened the public hearing. There being no testimony, the public hearing was closed. SWEARINGEN: I would move we have the first and second reading of Ordinance No. 98-033, by title only. NIPPER: I'll second it. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES MINUTES 6 DECEMBER 2, 1998 Chair Schlangen performed the first and second reading of Ordinance No. 98-033, by title only. SWEARINGEN: I would move adoption of Ordinance No. 98-033. NIPPER: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 9. PUBLIC HEARING ON SEVEN PETITIONS TO WITHDRAW FROM SPECIAL ROAD DISTRICT #1 AND SIGNATURE OF ORDER NO. 98-174, 98-175, 98-176, 98-177, 98-178, 98-179, AND 98-180, ACCEPTING THE PETITIONS FOR WITHDRAWAL AND SETTING A FINAL HEARING Before the Board was a public hearing on seven petitions to withdraw from Special Road District #1 and signature of Orders No. 98-174, 98-175, 98-176, 98-177, 98-178, 98-179 and 98-180, accepting the petitions for withdrawal and setting a final hearing. Beverly Wilson reported there were 7 petitions requesting withdrawal from Special Road District #1. Beverly reviewed the location of each of the pieces of property requesting withdrawal from the road district. Commissioner Swearingen asked how long ago the road district was formed. It was reported the road district was formed 18 years ago. Commissioner Swearingen asked when the roads were paved. It was reported that the roads were paved in 1985-86. Paving of the County roads within the road district was paid for by the formation of a local improvement district. Beverly Wilson reported the signatures on the petition were verified by the County Clerk's office and notice was duly posted and advertised. Tom Blust reported that this was the last local improvement district that had been formed within a road district. He stated all of the other LID'S formed since that time had not been within special road districts. MINUTES 7 DECEMBER 2, 1998 Commissioner Swearingen stated that in the future she hoped that before there were any LID' s allowed within a special road district that this was worked out. This would make so the County would not be faced with citizens saying they had paid for the LID, the paving, and the County has accepted, and they did not want to continue paying the road district. Commissioner Swearingen asked if Tom Blust had met with the road district to discuss some of these issues. Tom Blust stated he had met with them to discuss the possibility of doing a local improvement district for the rest of the roads in that area, at which time the special road district could be dissolved. He stated at this point there was not enough development to warrant doing a local improvement district. Commissioner Swearingen stated they had received a letter from Andrew Jordan in which he felt the property owners wishing to withdraw did receive a benefit because the special road district plowed their roads. She stated that the County paid for the plowing. Tom Blust stated the special road district was reimbursed for any work they did no the County maintained roads. Chair Schlangen opened the public hearing. James McKinney, 56222 Solar, stated he was requesting withdrawal from the road district as he was not receiving any benefit. He stated he accessed his property by County roads. He provided background information on the history of the road district. He said the cost was about $850 for a paved road lot and $150 for a cinder road lot. The people who lived on a paved road received a property tax increase. The district lost 5 miles of road that it had to maintain but received a contract with the County for snow plowing roads at $55 per hour up to $4,000 per year. He reported the road district took in about $100,000 per year in property tax receipts. He felt the road district was using their tax dollars to fight their withdrawal by hiring an attorney. He felt their withdrawal would not cause financial ruin for the road district. Nick Van Wagner, 56148 Solar Drive, testified. He understood that when the Local Improvement District was formed and the MINUTES 8 DECEMBER 2, 1998 roads were made county roads, they would be withdrawn from the road district. Conrad Ruel, 17219 Bakersfield Road, testified. He reported he was the secretary of the Road Commission and a new member. He stated this was not a fee for service district. He stated no one was being doubled taxed on this issue. Commissioner Swearingen asked if they had thought about paving more roads. Conrad Ruel stated that in 5 to 10 years that would probably happen. Conrad Ruel reported that everyone that bought property in the location knew they were in the road district. He stated the County Commission designed how they were going to do this. Commissioner Swearingen pointed out that the County did not form the road district, but the citizens petitioned to make this happen. Commissioner Swearingen felt there were changes that needed to made at the legislative level in order to makes these changes happen. Andrew Jordan, attorney for Road District #1, testified. He felt this was a statewide issue. He reported he was also the general counsel for the Special District Association of Oregon. He felt the piece -meal withdrawal from the road district caused difficulties. He discussed Senate Bill 122 which requires Counties to negotiate agreements with special districts to determine who was going to provide what service, how, when and who was going to pay for it. He felt mediation was a good idea, whereas piece -meal withdrawals were a bad idea. He discussed five legal issues involved in this case: #1. contiguity of property, #2. service, #3. number of signatures on a petition for withdrawal, #4. petition must say if the property was inhabited or uninhabited, #5. certificate of the County Clerk. Andrew Jordan reviewed each of the five issues with the Board. He felt the petition was defective and the Board could not approve it. Commissioner Swearingen stated she disagreed with the issue of Mr. Jordan's statement regarding contiguous. She felt the district was already an irregular shape. She thought the County could contract with anyone to do the snow removal. MINUTES 9 DECEMBER 2, 1998 Andrew Jordan felt that mediation should take place with the County in the picture. Commissioner Schlangen stated she was not present when the decision regarding the last withdrawal was made and she did not agree with it. She felt there needed to be a solution that would help all of the people in the road district. Commissioner Nipper asked if a service was not provided, even if the potential for a service was there, would they not be allowed to withdraw. Andrew Jordan stated that was what the statutes said. Commissioner Swearingen asked if there was anything across the state being done to solve that. Andrew Jordan stated there were no easy answers to these. Commissioner Nipper asked about petitions for a local improvement district. He stated that any one of these roads could petition for a Local Improvement District, pay the costs of the improvement, and the County accepts the road. Nancy Ruel testified. She felt that the roads would not be paved at all, if all of them had not helped to get them paved. She read from the minutes of September 2, 1998, Board of County Commissioners meeting. Allen Jaworski testified. He stated he had two lots in the road district. He felt they were being taxed twice and served once. He felt the road district had outlived its mission and purpose. He stated it was not fair to tax people for services they weren't receiving. Commissioner Schlangen stated the Board needed to come up with a solution that was of benefit to everyone. She further stated it was up to the petitioners to meet the burden of proof . Commissioner Swearingen asked Bruce White ORS 198.755.3 which provided for signature requirements for a petition to withdraw from a district. She reported Mr. Jordan had stated there were not enough petitioners signing the petition. Bruce White stated he disagreed with Mr. Jordan's interpretation. MINUTES 10 DECEMBER 2, 1998 Commissioner Nipper asked if adjacent property included a road area. He stated that in terms of contiguity some of the properties were only connected by a road. Bruce White stated he was not prepared to give a legal definition of contiguous. Terri Garner, owner of Snowy River RV Park, testified. She stated she had attended one of the road district meetings at which Tom Blust spoke. She stated they were being charged twice but only receiving one service. She stated the road district was not interested in mediation. She felt the road district wanted their own way and that was all they wanted. Nick Van Wagner stated they had tried to mediate this issue at the last road district meeting. Contiguity was discussed. He stated they had tried to make a motion at the road district meeting that they support the withdrawal because the requirements had been met, but the districts' response was that they did not accept motions from the floor. He stated the road districts' response was to hire an attorney to sink the petition. He reported he had been paying the road district for 10 years for the County to maintain the road and the County had been paying the road district to maintain the road. Commissioner Schlangen stated the burden of proof was on the petitioners. Fred Jansen stated he had a short conversation with Conrad Ruel about the petition. He reported he had explained that they wanted to withdraw because they were being taxed twice. First they were being taxed for vehicle registration, gasoline, etc. and they were being charged for snow removal. He reported that Conrad Ruel had not been aware of the contract between the County and road district for snow removal. Dan Wilkerson stated when the local improvement district was formed, it was the only way to get the road paved. He was very upset that people didn't want to pay for a good service. He felt double taxes were beneficial in order to maintain the roads. MINUTES 11 DECEMBER 2, 1998 Jim McKenny stated there were a lot of properties that could be involved. There were 7 petitions because those were the people interested in withdrawing from the road district. He stated he had been attending the road district meetings. He stated he did not see a plan for where the road district was going. He asked to have the charter, the bylaws and their financial statements for the last three years to be presented today. He wanted to see their financial stability which was created by the collection of taxes for the past 12 years for which there was no service received. He stated he had no problem with mediation. He felt mediation would be good and would help keep attorney fees down for all parties involved. He felt long range planning for the road district should be included in the mediation process. Andrew Jordan, attorney, responded to the question about the number of signatures required. He felt mediation was a good idea but only if it involved the County. He stated the question of benefit kept coming up. He reported the statute did not talk about benefit but about feasibility of service. He felt contiguity meant that those properties could not be withdrawn. Commissioner Nipper felt that the special road district roads made the road district contiguous. Commissioner Nipper read sections from the Oregon Revised Statutes. Commissioner Swearingen felt it would be a good idea to set a second hearing. She stated she would like to see the two groups enter into mediation with the County to form a plan. Commissioner Nipper stated he would like to see mediation take place also. Chair Schlangen continued the public hearing to December 7, 1998, at 10 a.m. 10. APPROVAL OF WEEKLY ACCOUNTS PAYABLE VOUCHERS Before the Board was approval of the weekly accounts payable vouchers in the amount of $247,158.83. SWEARINGEN: Move approval. MINUTES 12 DECEMBER 2, 1998 NIPPER: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 11. SIGNATURE OF RESOLUTION NO. 98-133 AUTHORIZING COUNTY TO OPEN INVESTMENT ACCOUNT AT WELLS FARGO BANK Before the Board was signature of Resolution No. 98-133, authorizing the County to open an investment account at Wells Fargo Bank. NIPPER: I'll move signature of Resolution No. 98-133. SWEARINGEN: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 12. APPROVAL OF LEASES FOR WATER RIGHTS ON OLD FAIRGROUNDS Before the Board was approval of leases for water rights on the old fairgrounds. NIPPER: I'll move approval SWEARINGEN: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 13. APPROVAL OF COUNTY OFFER ON TOEVS PURCHASE TO AMEND CLOSING DATE TO DECEMBER 31, 1998 Before the Board was approval of the County offer on Toevs purchase to amend the closing date to December 31, 1998. SWEARINGEN: I would approval to accept the counter offer on the Toevs purchase. MINUTES 13 DECEMBER 2, 1998 NIPPER: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES SWEARINGEN: I would like to move that the County make an offer to the Redmond School District in the amount of $80,000 for the construction of tennis courts, with a closing date of December 31, 1998. NIPPER: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 14. SIGNATURE OF EASEMENT FOR CENTRAL ELECTRIC COOPERATIVE FOR GUY WIRE Before the Board was signature of an easement for Central Electric Cooperative for placement of a guy wire. SWEARINGEN: I move signature of the easement for Central Electric Coop. NIPPER: Second. VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES 15. SIGNATURE OF AMENDMENT TO BURROWS CONSULTING SERVICES CONTRACT Before the Board was signature of an amendment to the Burrows Consulting Services contract. SWEARINGEN: NIPPER: MINUTES 14 Move approval. Second. DECEMBER 2, 1998 VOTE: SCHLANGEN: YES NIPPER: YES SWEARINGEN: YES DATED this 2nd day of December, 1998, by the Deschutes County Board of Commissioners. ancy Pop Scklangen, Chair f L. Nipper, ComcflWsioner (14&e 2k, 7-y� zz�� Recording Secr tary Linda L. Swearingen, Commissioner MINUTES 15 DECEMBER 2, 1998