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1999-900-Minutes for Meeting June 09,1999 Recorded 8/12/1999VOL: CJ1999 PAGE: 900 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *01999-900 *Vol -Page Printed: 08/19/1999 10:30:32 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Aug. 12,1999; 9:46 a.m. Regular Meeting (CJ) NUMBER OF PAGES: 36 LV � , 0'. - � MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK Minutes eylqqq . �w Public Hearing on 99 AUG 12 AM 9: 46 Proposed Oregon Department of TransportatioNIAMLLOWK LER South of Bend, Oregon June 9, 1999 PRESENT AT MEETING Representing Deschutes County: Commissioner Tom DeWolf Commissioner Dennis Luke Bruce White, Assistant County Counsel Paul Blikstad, Deschutes County Community Development Testifying on behalf of the Oregon Department of Transportation in support of the weigh station being placed at the proposed site: Bruce Ward, ODOT Bend Manager of Motor Carriers Bob Bryant, ODOT Region Manager Jack Boatwright, ODOT Project Team Leader Kathy Lincoln, Attorney General's Office Peter Russell, Region Senior Planner, ODOT Jason Tell, ODOT Engineer Tom Wallace, ODOT Engineer Brian Dunn, ODOT Senior Transportation Planning Analyst John Jackson, Oregon Department of Forestry Testifying on behalf of placing an ODOT weigh station somewhere in the County: John Van Patten, Deschutes County Sheriffs Office Testifying in opposition of the weigh station being placed at the proposed site: Art Wolf, President of The High Desert Museum Mike McKnight, The High Desert Museum Facilities Manager Jerry Moore, Vice President of Operations for The High Desert Museum Liz Fancher, Attorney representing The High Desert Museum Randy Windlinx, owner of property adjacent to the proposed site Maggie Gunn, Sunriver resident and Museum volunteer Paul Heavirland, resident of Deschutes River Woods Frank Paddock, President of Deschutes River Woods Homeowners Association Tricia Maxson, staff member of The High Desert Museum Testifying regarding the legal process of the decision: Don Hauge, Deschutes County citizen Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Commissioner DeWolf: Called the meeting to order at 7:00 p.m. He explained the purpose of the meeting is to hold a public hearing on an appeal of a decision by a Deschutes County Hearings Officer, file numbers CU -98-109 and V-98-15. He also informed the attendees that Chair Linda Swearingen could not be there due to recent surgery. Bruce White, Assistant County Counsel: Explained that if the two attending Commissioners were deadlocked on making a decision, Commissioner Swearingen would have to make the deciding vote. She would have to listen to the tape recording of the hearing as well as examine any and all exhibits and written material that have been made a part of the record. Commissioner DeWolf: Asked Bruce White what would occur if one or the other of the two attending Commissioners were in some manner disqualified from making a decision. Bruce White: Stated the hearing would have to be continued to make a record of it, and then Commissioner Swearingen would have to step in to make a decision. The record may have to be held open in that instance until she could attend and be an active participant. Paul Blikstad, Deschutes County Community Development Department: He explained that the applicant in this instance, Oregon Department of Transportation, requested a conditional use permit for a weigh station along Highway 97 in a Forest Use and Rural Residential zoned area, and a variance to the fire siting and fuel break standards for the weigh station building. The hearings officer previously considered these applications after a public hearing held on December 15, 1998. Evidence and testimony were received at that hearing. The hearings officer then approved the applicant's request. He explained that the applicant, ODOT, has the burden of proving that it is entitled to the land use approval sought, and the standards applicable to the applications were listed in the overhead that he showed. (Overhead was a page from Title 18, showing various uses of the subject zoning, used as the basis for the decision.) The procedure applicable to this hearing provides that the Board of County Commissioners will hear testimony, receive evidence and consider the testimony evidence and the information submitted into the record on appeal, as well as that evidence constituting the record before the hearings officer. The record as developed to this point is available for public review at the hearing. Bruce White: Asked if there have been letters received for the record since the decision of the hearings officer. Paul Blikstad: Approximately 40 have been received (exhibit #23), most addressed to one or more of the Commissioners. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June % 1999 Bruce White: I am submitting at this time an additional letter sent by Representative Tim Knopp. If any parties wish to see those letters, they are available for review. Paul Blikstad: Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of the hearing shown in the overhead. Testimony may be directed to any other criteria in the Comprehensive Land Use Plan of the County, or land use regulations that any person believes applies to this decision. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. He explained the order of the hearing presentation: • Staff will give a staff report of the prior proceedings and the issues raised by the applications on appeal. • The applicant will then have an opportunity to make a presentation and offer testimony in evidence. • The opponents will then be given an opportunity to make a presentation. • After presentations from both proponents and opponents, the proponents will be allowed to make a rebuttal presentation. • At the Board's discretion, the opponents may be recognized for rebuttal presentation as well. • At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. • The Board may limit the time period for presentations. • 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 a question to be asked of any person during that person's presentation, please direct such questions to the Chair after being recognized. The Chair is free to decide whether to ask such questions of the witnesses. Paul Blikstad: Asked the Board of County Commissioners the following question. If any member of the Board has had any pre -hearing contacts, now is the time to state the substances of those contacts so that all persons present at the hearing can be fully advised of the nature and context of those contacts, and with whom those contacts were made. Commissioner Luke: He advised that in his previous work as State Representative, he had extensive contact with the Oregon Department of Transportation, has attending their public hearings and public presentations, has testified before them and the Sunriver Homeowners Association, and has had private discussions with members of their staff. He has had some contact with the staff of the High Desert Museum regarding the weigh station, as well as contact with the Windlinx family. He also has dealt personally with the residents of the area surrounding the proposed weigh station site and has received extensive letters from the public. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 He has also attempted as much as possible to limit his actions on the matter since his election as Commissioner in November 1998, but there was extensive contact before that. He also, as a State Representative, submitted two letters at two public hearings relating to this matter. He stated he believes there should be a weigh station in the area; his concern is the safety of the chosen site. Bruce White: Asked if any facts derived from Commissioner Luke's contacts have been expressed in the record. Commissioner Luke: Yes. He pointed out that on page 14 of the hearings officer's report, the concern he has now and has always had is the adequacy of the transportation to and off the proposed site. He is open to testimony that will convince him that this site is safe relating to trucks leaving and entering the highway at the site. Commissioner DeWolf: Stated he is a member of the High Desert Museum; has spoken with Art Wolf (the Museum Director), as well as other members of the public, regarding this issue. He knows the site very well. He has received numerous telephone calls and letters about the issue. Yesterday one of the five members of the State Transportation Committee spoke to his Rotary Club meeting. He was asked which way he was "leaning", and he would not respond. He indicated he is trying to keep an open mind about this situation. He stated that he asked the Rotary Club speaker if a community is strongly and universally against a particular project (no project in particular), would ODOT move forward with it. The response to him from the Transportation Committee representative was that ODOT is not in the habit of going against the opinion of a strong majority of the community. There have probably been other contacts at various points, but he felt he could remain impartial. Bruce White: Do you think that, given your knowledge of the record, there is factual information not already contained in the record? Commissioner DeWolf: No, it is so massive there is probably nothing missing from it. Commissioner Luke: I would like to point out that a few of the calls and letters received were in favor of the weigh scale. Bruce White: Asked the attendees if anyone has a problem with the disclosure the Commissioners have made relative to their pre -hearing contacts, and whether these disclosures should be made in more detail. There is a rule of necessity that this Board has to make a decision. The opportunity for a challenge has to be set forth. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Don Hauge (citizen): Questioned whether the Board of Commissioners could make an unbiased decision, based on the numerous contacts they have received. Commissioner Luke: Explained, based upon his experience within the Legislature, that Oregon has very strict ethics laws. The record has to reflect any potential conflicts of interest and potential contacts. The audience can then challenge the impartiality of the person hearing the issue. There could be a challenge, and the hearing would be postponed until Commissioner Swearingen could sit through it; or things could move forward. Commissioner DeWolf: Even if we are challenged, it is still our decision whether we believe we can hear this with enough impartiality to make a balanced decision. Any challenge would become part of the record, and could perhaps provide part of the basis for an appeal. Having knowledge and having predetermined a decision one way or another are two different things. Don Hauge: Both have acknowledged that there have been outside influences. Commissioner DeWolf and Commissioner Luke: No, outside contact; no one said it was influences. There is a difference. Bruce White: What the Commissioners have stated is that they have neither read nor heard anything that is not already contained in the record. Don Hauge: Will a decision made now be challenged later? Bruce White: The time for making a challenge is now. Don Hauge: We don't know what the Commissioners have seen or have been told; how can it be challenged now? I don't understand this process. Bruce White: The Commissioners indicate what they've been told is encompassed in the record. There have been numerous opportunities to go through the public records since the original decision. Commissioner DeWolf: Almost all calls and letters were of an emotional nature and did not address the facts of the issue on which we will base our decision. 4 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Bruce Jackson (citizen): Asked Commissioner Luke the proportion of ODOT contacts to other contacts. Commissioner Luke: Attended public meetings regarding site selection and listened to public input. On a scale of 100, perhaps 65% ODOT and 35% public. Don Hauge: How can we be sure that you were not influenced by calls and letters, and how do we know what you've been told or have read? How do we know these things haven't affected your decision on this important matter? Bruce White: The Commissioners will make their decision based upon the universal facts on the record. If you believe you need an opportunity to examine all of the record, it is available. Final closing arguments are allowed. The Commissioners want a fair hearings process for all concerned. Commissioner Luke: We will allow you an opportunity to examine the record and to make a written rebuttal on anything you see in the record that you feel is a problem. Commissioner DeWolf: A vote won't be taken tonight. Don, you are the father of Karen Green, the hearings officer, and you certainly know the process. Paul Blikstad: Stated that the records have been in his office, available to the public, for months, and no one with the exception of legal counsel for the High Desert Museum has asked to examine them. He went over the criteria of the County Code, Title 18, available through the Community Development Department, the library and the internet. He explained the time frame regarding this issue: These applications are the third set of applications for a weigh station at this location. The original applications were submitted in December 1995, and were subsequently withdrawn at the public hearing scheduled to address them. In May of 1998 a second set was submitted, and there was a public hearings process. A decision to deny the applications was rendered by the same hearings officer in September 1998, finding that the County did not have the authority to waive State standards for the fire siting of the structures. On September 29, 1998, decision by the hearings officer was rendered. This last set of applications was resubmitted in October 199 by ODOT, as the State administrative rules for fire siting changed to allow this application to go forward. These applications also went through a public hearings process, with two orders by the hearings officer allowing for reopening of the record for additional comments based upon the applicants submitting new evidence into the record. On March 5, 1999, the record was closed. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 A written decision by the hearings officer approving the applications was rendered on March 29, 1999. The appeal to this decision was submitted to the Board within the required ten days on April 8, 1999. The Board at its April 14, 1999 meeting, determined it would hear this appeal as it has discretion as to whether to hear an appeal, and that the appeal would be heard de novo, or basically we start over. Per State law, the 150 -day review period on these applications ends on Friday, June 28, 1999. Bruce White: Just to clarify: A decision must be reached by that date or the applicant has the right to go to Circuit Court and get a Circuit Court mandamus, and the authorization for the decision would fall to the Court. The County would then be on the defensive and have the burden of proof. The public would then have a chance to participate but only if it intervenes in the legalistic process. Paul Blikstad: The hearings officer found that the proposed weigh station is a conditional use in the forest zone; in fact, it is listed as a conditional use in that zone. The weigh station would be considered a public use, as that term is defined under the definition of public use. Most of the weigh station would fall within the forest zone. That portion of the weigh station facility that would be located within the Rural Residential zone is the acceleration ramp. The criteria relied upon by staff and the hearings officer dealt primarily with the impact of the proposed use on adjacent land, including forest land, and the traffic impact on the highway; which seems to be of paramount interest. Specifically, the concern is the conflict of traffic entering and exiting the High Desert Museum and the entrance to the Baker Road interchange, with the trucks entering and exiting the weigh station, combined with the overall traffic on the highway. The applicant has completed a traffic study of this movement and has determined that for a twenty-year time period, which are normal periods of time for traffic studies, the service on the highway will remain at an acceptable level. No other traffic engineers have submitted comments regarding the traffic study, and it was this expert testimony that the hearings officer relied upon to conclude that the weigh station would not cause undue traffic impacts and would be safe in this location. The other impacts upon adjacent land to be considered in the review was how the weigh station could cause the least impact on forest land, such as not forcing a significant change in the cost of farm or forest use on adjacent lands, ensuring that forest operations would not be curtailed or impeded, and minimizing the amount of forest lands used for a building site and road access. The hearings officer found that forest operations, such as the Windlinx's forest operation, would not be impacted or curtailed, especially since the weigh station would be located within the highway right of way. Also of concern to adjacent property owners was the compatibility of the proposed use with existing and projected uses on surrounding properties, based on the site, design and operating characteristics of the weigh station facility. The adequacy of the transportation access and the natural and physical features of the weigh station site were considered. The hearings officer found that the proposed use would be compatible. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 The third consideration was whether the weigh station would create a fire hazard, specifically to the lands east of the highway. These lands include the property of the High Desert Museum, single family dwellings, vacant forest and rural residential zoned land, and State of Oregon owned land zoned for surface mining for cinder resources. Further east is U. S. Forest Service land. The hearings officer found that with the fire prevention standards recommended by the Oregon State Fire Marshall's Office and the Oregon Department of Forestry, the weigh station would not present a problem regarding wildfire potential. Testimony was received by a consulting firm on behalf of the Museum. It was their opinion that there would be a fire hazard. The key seemed to be the prohibition of repair work during high fire season, with a paved area for such work to be done during non -high fire season. Also, as much of the ground cover as possible would be removed around the site to prevent a fire; and a fire-resistant fence would be built (rock or stone wall) 200 feet to the north and south of the scale house building. There would also be a buffer strip with no flammable materials present on both sides of the fence, and a fire extinguisher would be present on site. Commissioner Luke: For the record, this hearing was scheduled previously, and there was a withdrawal and a waiver of the 150 -day rule for the period of the withdrawal. It was originally scheduled for May 5. There was a 30 -day waiver. Bruce White: Asked for an explanation of the variance that was applied for. Paul Blikstad: The hearings officer felt that the variance criteria for the fire set back had been met. The fire siting standards are that any structure placed in a forest zone requires a primary ten -foot firebreak, with no vegetation or flammables within it. Beyond the ten feet is a twenty -foot secondary firebreak where other fuel modifications are done. Beyond that is a 100 -foot fuel break where trees and other fuel are thinned out to prevent the spread of fire. The total is 130 feet, which the applicant could not meet with only 60 feet from the weigh station building to the east boundary of the highway right of way. Bruce White: Is that because they don't own enough land for the fuel break, and couldn't come to an agreement with the owner of the adjacent property for encroachment purposes? Paul Blikstad: The applicant can address that question. They asked for a variance because they didn't own enough land for the standard firebreak area. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Commissioner DeWolf: Explained how the hearing would be conducted. Expert witnesses and attorneys would have as much time as necessary to present their positions; additional witnesses and citizens would be limited to three minutes each since the meeting is heavily attended, unless said witnesses have specific factual information that should be given. Written testimony would be accepted. No personal attacks would be tolerated. Bob Bryant, ODOT Region Manager: Stated he was attending to introduce those speaking on behalf of the weigh station. He explained that he wanted to emphasize the importance of having a weigh station in the location that ODOT has chosen to replace the weigh station that had previously been in operation. He stated that ODOT has an obligation to motor carriers and to the safety of the public by making sure trucks are meeting their safety requirements. He further stated that there are approximately 700 carriers registered in Deschutes County, and there has to be a way to check for overweight vehicles and the safety elements of the carriers' equipment. He explained that without the weigh station there is no means of assuring that trucks entering into and exiting Bend to the south are meeting their legal requirements. He also explained that ODOT is sensitive to the opinions of the High Desert Museum and the public. He then introduced Bruce Ward, Bend Manager for Motor Carriers in the area; Jack Boatwright, the project team leader for ODOT who has been involved in the process from the beginning; Kathy Lincoln from the Attorney General's Office; Peter Russell, a senior planner for the region; Brian Dunn, senior transportation planning analyst; and John Jackson of the Oregon Department of Forestry. Bruce Ward: Explained the purpose and importance of the proposed Bend scale. See attached Exhibit A, "Bend Scale", for the statement (3 typed pages) he read into the record. Commissioner Luke: There is a site east of Bend where jump scales are used. Bruce Ward: Explained that it is a mobile enforcement site. Commissioner DeWolf: Asked how it was determined that a majority of trucks stopping at this proposed site would not go through another weigh scale. Mr. Ward explained that this is based upon the operation of the previous scale, and it is clear to ODOT why a scale needs to be reestablished in this location. The size and weight problem is primarily on the northbound location, but this scale will be able to address the high out of service violation rate of the southbound truck traffic as well. Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Jack Boatwright, ODOT Project Team Leader: Discussed the process used to determine the site selection. He presented a map of the corridor from Baker Road to South Century Drive (known as the Sunriver intersection). He has been involved with the project since February 1995, when ODOT was ready to put the project, which included a north and south scale, into contract plans. The Windlinx family, who owns the adjacent property, raised issues at that time. Two meetings were then held at the High Desert Museum in early 1995, including members of the High Desert Museum and the Windlinx family. Based on the issues and concerns raised at those two meetings, he asked Bruce Ward if he could function in that corridor with one scale instead of two. It was determined one scale could do the job provided certain requirements were met. He then provided the Commissioners with a list of the Purpose and Need of Project (copy attached, Exhibit B). Another meeting was held at Sunriver in the summer of 1995, since a scale was proposed at that location in the hope that it could be part of a future interchange. At this time Mr. Boatwright referred to Exhibit #2, South Bend Scales Study Map dated 6/97. Due to issues raised at the time, ODOT's initial application was withdrawn in late 1995, and ODOT decided to go through the process again. He then put together three groups: the project team, a technical advisory committee, and a citizens advisory committee, to determine the purpose and needs of the project. The citizens advisory committee was asked specifically to voice their issues and concerns with siting a scale in the corridor stretching from Baker Road to the Fremont Highway located about two miles south of La Pine. South of South Century Drive was eliminated due to other access roads that could be used by trucks to bypass a scale. In addition, traffic going to and from Bend and Sunriver would never be examined for safety. Ten individual sites were considered. Mr. Boatwright went into detail, referring further to Exhibit #2. After approximately an 18 -month process, the subject site was selected. A part of the decision was also based upon cost factors. Two of the final three choices were more expensive to develop. The site just south of the Museum's property would cost about $200,000 additional to develop; the site outside Sunriver was somewhat over $500,000 more costly. The total project cost in the chosen location is just over $1,000,000. Commissioner DeWolf: Responding to a question from the audience, Commissioner DeWolf asked what the distance would be from the entrance to the High Desert Museum to the entrance to the weigh station. Mr. Boatwright answered 1,300 feet, about 1/4 mile. Kathy Lincoln, Department of Justice, representing ODOT: She explained that the application for conditional use was approved, so the question is whether the scale as planned meets the criteria in the ordinances. Commissioner Luke: After the original application was withdrawn, there was an extensive public process, including a citizens committee, to select the site. Didn't ODOT, by doing that, make the selection of the site part of the criteria? Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Bruce White: Responded that there is nothing in the ordinary criteria to require a comparison of various sites. However, there may be some issues in respect to the variance criteria that might possibly bring a comparative analysis into play. For example, did the other sites require a variance? Kathy Lincoln: Responded that this would be addressed later, but that she felt this is not an issue, and they shouldn't be required to show that the project could be built at another location where a variance is not required. The hearings officer did find that ODOT met all of the criteria for the conditional use permit and for the variance based on substantial evidence in the record. She then referred to ODOT's "Response to Appeal of Hearings Officer Decision Dated March 29, 1999" (Exhibit #1). She emphasized that this site poses very little risk of fire, and in fact minimizes the danger of fire from the highway itself. She also went into detail regarding the landscape management plan. She also explained that the County cannot challenge the need for the weigh station; it can only address whether the weigh station can meet its conditions and requirements. Commissioner Luke: Stated that he had recently attending a meeting where ODOT addressed the audience, and it was explained by ODOT that local cities and counties have a great input into what ODOT does; but you are saying now that we don't. Kathy Lincoln: She explained that ODOT always gets input from the community, but ODOT must consider the safety of all of the population traveling the highways and the infrastructure. Sometimes this runs into conflict with what local people want. She then referred to a letter dated June 4, 1999 from Liz Fancher, Attorney representing the High Desert Museum (Exhibit C), and stated she felt that the issues raised were not significant. She stated she realizes it is an emotional issue, but is not an issue that would be decided by referendum vote. Commissioner DeWolh I want to refer to the Bend Parkway Project, which might have gone to a ballot. It was stated that if a majority of people within Bend were opposed, ODOT would not move forward with its plans. If the public went out now and gathered enough signatures to put this particular issue on a ballot, would ODOT take such a vote into account? Kathy Lincoln: I really can't answer that. It wouldn't be a legal issue, but would instead be a political and policy issue that would be decided by the transportation commission. Peter Russell, ODOT: Presented aerial photos of the scale, 1:200 and 1:50, a time chronology, a truck freight volumes map, and a color graphic of the timeline (Exhibits #3, #4, #5, #6 and #7). He detailed the timeline, or major events, in the development of the area near the proposed weigh station. 10 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 He also explained, by use of the truck freight volumes map, the approximate millions ton per year hauled through the various corridors, per ODOT data. After elaborating on the history of the subject portion of Highway 97, Mr. Russell stated that Oregon Administrative Rule regarding fire setbacks came into effect in 1992; and both weigh stations closed in 1994 due to the proximity of the Baker Road interchange. In 1998 an Amendment to the Oregon Administrative Rule dealing with fire setbacks was adopted, as was the Deschutes County Transportation System Plan. He also stated that in 1999 the High Desert Museum expected to expand by 10,000 square feet, and in their land use application for that expansion they did not discuss transportation issues at all. In regard to the burden of proof for transportation issues they indicated that they had adequate parking. Mr. Russell further stated that compatibility is an issue for the County. When the County developed their land use ordinances in 1972, they had to look at what's an appropriate zoning for property that's adjacent to a high-speed, high volume highway, and looked at what land uses are allowed within these various zones. They identified a weigh station as a conditional use in the F- 2 zone, indicating they thought it was compatible with the other uses allowed in F-2. They identified road projects and public uses as being compatible with the RR -10 zone, and the weigh station fits that definition. He further elaborated: Regarding the Deschutes County Transportation System Plan, Highway 97 is designated as a principal arterial and a freight route, making it appropriate for the Department of Transportation to weigh, measure and inspect trucks that are operating within the system. The Plan also talks about the development of supporting structures for highway operations, including bridges, culverts and, by implication, weigh stations. This is covered in detail in ODOT's most recent burden of proof. Regarding the RR -10 zoning and the weigh station, the only part of the facility that would be within the RR -10 would be basically the northern two-thirds of the acceleration ramp. This is the area where trucks would be coming on the downhill and getting up to highway speed. All it is, is a 12 -foot wide travel lane. It's no different operationally from the two other northbound travel lanes of Highway 97, and thus is compatible with the RR -10 zone. The weigh station is not incompatible as we often define that in planning. Incompatibility is usually inappropriate adjacent land uses, introducing new traffic patterns, noise, and intensity of use; the weigh station would not do that. The same amount of trucks would be going up and down Highway 97 with or without the weigh station present. We're not altering any of the travel patterns, either. The site is just another supporting element to the operation of a transportation system. The weigh station is an allowable use in these zones, with the appropriate conditions upon it, which is what a conditional use permit is geared for. We've worked closely with fire protection specialists to mitigate any impact. We don't have a site plan at this time. This land use application is for a conditional use permit. 11 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 There are materials relating to what the weigh station might look like; that was given as background materials to Deschutes County planners to help them learn what a typical weigh station looks like. We would be willing to work with the High Desert Museum and the Windlinx family when we come back through site plan review to make sure that we mitigate the effect of the weigh station upon them. Mr. Russell further explained: RR -10 zoning is basically designed for large lot, rural homes, ten - acre minimum. With a ten -acre minimum you have a fair amount of places where you can put your house to not be adversely impacted by a highway. The weigh station would not affect any of the current uses that we're seeing in the F-2 zone, since the bulk of the weigh station operations would be in the F-2 zone. Forestry operations and harvest patterns would not be affected, and there would be no adverse impact on the other side of that property line. He concluded with a description of the aerial photograph, showing the placement of the weigh station in relation to the surrounding area. He stated that under the 1991 Highway Plan, which ODOT uses to review land use actions regarding public road connections on rural highways such as Highway 97, the standard was 1,200 feet, allowing for public street connections. The distance between the entrance to the High Desert Museum and the entrance to the scale would be 1,300 feet. It is approximately 3,500 feet between the Baker Road interchange and coming back on to the highway. Much of the paperwork focuses on that 1,300 -foot distance, but it's important to remember that the Museum itself lies much farther south than its entrance to the highway. Mr. Russell concluded with the following: The closest building in Deschutes River Woods is approximately 850 feet away. To go from the center of the scale house, where the bulk of the operations would be occurring, to the center of the Museum, is 4,100 feet, or 8/10 of a mile. The geographic scale shows the minimal impact on the Museum entrance. The distance to the Windlinx house is in a previous burden of proof; I believe it is about 1,200 feet. Commissioner DeWolf: Why were some of the sites picked, and this one in particular? Mr. Russell: The burden of proof shows this one had the best topography. Ideally with a weigh station, when you want to come off the highway you want to be going uphill; as you leave the weigh station you want to be travelling downhill to help acceleration. By coming in on the uphill, it's much easier for a heavy truck to slow, cutting down on unmuffled "jake" braking, which is illegal in Oregon. The same thing with accelerating. (Discussion within the audience.) I recognize the concern. When you hear one of those go off, you think that's got to be unmuffled; but if you've ever heard an unmuffled jake brake versus a muffled jake brake, the difference is astounding. Another advantage of having the terrain like this is that the ramps can be shorter, allowing for cost savings. The proximity to Bend is a factor. There have been concerns expressed about the possibility of people coming out to the station while it's unattended and loitering and doing illegal activities; we work with the Oregon State Police and the Sheriffs Office to control that possibility. 12 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Another reason we picked a location farther north is that the farther south you travel on Highway 97, the more treacherous the winter weather. It's an issue for our own motor enforcement personnel getting to work. This location is also on a state right of way, which isn't the overriding issue but is one of the criteria. This means we go through a much faster process to the timeline of approval. The other two sites farther south are on federal land, which means an environmental impact statement and anywhere from 18 months to 3 years to go through the federal process of land use approval, and accompanying additional cost. Commissioner Luke Luke: You indicated that this is an accepted use in an F-2 zone; is that true in all counties or is it allowed in other places? The previous weigh scale was in place long before the land use planning went into effect. It could have been allowed in Deschutes County because it was already there, as was the one in Sisters. Jack Boatwright: I don't know the answer. Commissioner Luke: What is the length from the time you enter the weigh scale to the time you exit? Jack Boatwright: The engineer can answer that. Commissioner Luke: How high is the weigh scale road in relation to the highway? You are on a rise, so you wouldn't be level with the road. Jack Boatwright: We don't know exactly, as we haven't done the design for this yet. We thought it would be prudent to know we have a site before we design it. We anticipate being slightly above the highway level. Commissioner Luke: What is slightly? Jack Boatwright: I would only be guessing at this point, since we haven't done the full design on this. Maybe three, four, or five feet I would anticipate. Commissioner Luke: It is south of the original site on that side, up on the rise. That rise is a lot higher than three or four feet off the highway. And you've made a point at all the public hearings that you expect the trucks to be nearly up to highway speed by the time they get to the bottom; and a truck doesn't do that on a flat surface. You must have some idea of what the grade is going to be there for those trucks to get up to highway speeds in that distance. 13 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Jack Boatwright: The grade is about 3% going out. The ramp going north out of the weigh station is about 1,500 feet. This computes to about 4-1/2 or 5 feet. Commissioner Luke: The question I have is this. You have a truck whose mirrors are usually set for a flat surface coming down an acceleration ramp. You have a highway that drops considerably from where you're at back to the Museum entrance. The cars coming up from the Museum are lower than the trucks sitting at the scale. Have you done any studies as to whether those truck drivers are going to be able to see those cars in their mirrors as they are trying to get up to speed, coming down that ramp? Jack Boatwright: I have done none. We still have another presentation that maybe will cover it. Brian Dunn, a professional engineer with ODOT, stated: At that location, from the top of where the scale house will sit to where the trucks come back on, is about a grade of 4-1/2 feet. Remember, we're on a rise, so when the trucks actually merge in with traffic, the differential is a lot less from where the scale house sits to where they actually see forward. The other issue is that when we're designing this, that's taken into consideration. And we have a long tangent section with Highway 97 so that's not a problem. Commissioner Luke: How long does it take a car to travel that length at 65 miles per hour, the whole length from entrance to exit? Brian Dunn: What we have is 1,200 feet between where the ramp takes off to the scale house, and then we have some lengths in the scale house, which aren't specific yet, as they are design issues. The acceleration lane is about 1,500 feet. So between those two, that's roughly 1/2 mile. Commissioner Luke: Say a car is traveling 60 miles per hour. That's a mile a minute, or about 30 seconds. Brian Dunn: It's a half a mile from beginning to end. Commissioner Luke: So it's only 1/4 mile from the scale house to when they hit the highway, 15 seconds. Brian Dunn: There is additional length parallel to Highway 97 beyond that 1,500 feet. Commissioner Luke: How much? 14 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Brian Dunn: I don't think we've done the specific design on that portion. Commissioner Luke: Then you will actually be closer to Baker Road than the 3,500 feet because of the merge lane? Brian Dunn: I haven't done the specific design yet. My expertise is more on the analysis of the operation than it is on the design. Commissioner Luke: It was in the record that it's 3,500 feet from the end of the project to Baker Road. If there's an additional merge lane, then it is actually closer than that. Brian Dunn: I think we figured 3,000 when we did our analysis on it. Brian Dunn: Gave an overview of the analysis he did for this. He explained ODOT gets its information from a variety of sources including manual counts of various types of trucks, an automatic traffic recorder (that counts vehicle axles, regardless of vehicle type), and field observation. He stated they were looking at the year 2017, figuring approximately 4% growth in their analysis. He discussed the "design hour", when car traffic is the highest, between 4-5 p.m. in August. He also discussed the peak truck hour, between 2-3 p.m. He also stated: We found for the northbound direction around Baker Road we have 3.3% of the traffic being trucks; at the High Desert Museum we have 3.6%, so we used 3.6%, indicating in the design hour there were approximately 30 trucks. In the peak truck hour, there are approximately 60 trucks, or 8.4% of the total traffic. Bruce White: How does the peak truck hour correspond with the peak traffic hour; do they correspond? Brian Dunn: We found that we had the most traffic overall in the period of 4-5 p.m. in this area. Traffic was about 700 vehicles northbound in the peak truck hour, and about 800 vehicles in the 4-5 p.m. hour. Commissioner Luke: How many vehicles per hour is Highway 97 designed to handle in one direction? Brian Dunn: He stated: I looked at future use, and figured about 2,400 vehicles, with 400 of those being trucks. He then explained their analysis of the use per hour, hourly volume, geometry, capacity, speed, weaving, lane usage, and level of service. He indicated they found the scale would operate acceptably for the next twenty years, and also meets ODOT's access spacing standards, which is about 1,200 feet for this facility. 15 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Bruce White: Can you explain what kind of standards you mean? Are they safety standards? Brian Dunn: This is a level of service standard, so it's operational; meaning how well the facility functions. It does relate to safety, and we would consider this level of service "B", based on our grading scale ofAtoF. Bruce White: Does that mean how the traffic flows? Does that standard take into account safety issues in regard to lane changes, merging patterns, and so on? Brian Dunn: Yes. And one of our concerns was what goes on by the High Desert Museum access. We went out today to take a look, and noted that about 90% of the trucks traveling north are already in the right hand lane when they go by. We feel there is no significant affect on the Museum. Commissioner Luke: Did you recalculate how high it will be at that slope? Brian Dunn: You have a couple of things going on. You have the roadway coming up at about 2.88% and you have the scale coming down at 3%; the difference should only be between where the scale site sits and where the road actually is; you'll only have a few feet of difference. Commissioner Luke: I'm talking about where the scale site is, and the road directly west of it. How much difference is there from the highway? Brian Dunn: We can look into that. I don't think we have that data. Commissioner Luke: The reason I ask is that the hill is fairly high, so there are some questions. When you're doing the firebreak, are you cutting into that hill and lowering your site, and is that bank part of your firebreak? I understand you haven't designed it yet, but you should have some idea of the height you'll be at where the trucks are stopped. Brian Dunn: I'm not the designer, but we should be able to get that. Bruce White: I think we should know what range of variance there is between the topography that's there now and your design topography, so we can have some reasonable approximation on what the final design configuration might be. 16 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Commissioner Luke: ODOT has based testimony on their belief that this is a safe site and that trucks will be able to safely merge. How can independent people look at that if you don't even know how high the weigh scale is to start with? With the angles of the cars coming up and the trucks going down, I think we need to take a closer look at this. Bob Bryant: If you visualize what a ramp like this might look at, you need to go no further than Baker Road. The northbound interchange ramp at Baker Road provides adequate grade and adequate distance for cars to accelerate on the ramp so as to safely merge into the through lane. The ramp here would be designed in such a way that we would fulfill the same goals or standards in terms of being able to have trucks adequately up to speed and have adequate sight distance so they can safely merge into traffic. Commissioner Luke: The ramp coming off Baker interchange and going north is considerably at an angle. Will that happen here? Bob Bryant: No. This one will come in parallel to the road. I ask you to visualize the portion of the acceleration lane closest to where you merge onto the highway. The portion of the acceleration lane there is adequate for motorists coming down the ramp to see adequately and have adequate speed in order to merge. Commissioner Luke: I would point out that the one coming off the Baker interchange is coming at an angle, and a driver is able to look out and see those cars on the highway. But if a driver were coming on parallel to the road, he would have to look in mirrors to see what is coming up to you. There is a significant difference even if the slope is the same; the angle is different. Bob Bryant: We've built a lot of ramps, both for truck routes and standard interchanges, and the idea is here that we would make sure the ramp and acceleration lane for the truck route would provide for all those safety measures. Brian Dunn: We did look at this conservatively, as safety is ODOT's main function. We feel this will not have a significant impact on the High Desert Museum, and feel everything has been done in an acceptable manner and in full compliance, and that it will operate well for at least twenty years. Exhibit #8, traffic analysis ofproposed south Bend scale site, was submitted for the record. 17 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 91 1999 John Jackson, unit forester for Prineville/Sisters Unit of the Oregon Department of Forestry: He explained Oregon Department of Forestry's role relative to wildland fire suppression and prevention, and mitigation of the issues associated with that. He stated: When the opponents to the weigh station location raised the issue of fire safety, ODOT contacted the Department of Forestry. It asked them to evaluate the fire risk, potential mitigation to that risk, and to try to blend together something that is consistent with reasonable fire safety and the provisions of the administrative rule that is embodied in the County Ordinance now relative to siting and clearance standards. He discussed risk and hazard: Risk refers to the ignition sources; hazard refers to the presence and nature of fuels and flammables, i.e. natural vegetation in the area around the site. The mitigation ties back to isolation of the ignition source or separating the ignition source from the fuels. One of the ways this is done is to reduce fuel volume. There has been continuing debate about the roles of hazardous fuels and mitigation of the accumulation of hazardous fuels. He then addressed the clearance standards, the 30 -foot standard and the 130 total foot standard. He explained: The Administrative Rule and the County Code are essentially the same, with some slight differences. The County Code breaks up the first block of the Administrative Rule 30 -foot into a 10 and 20 foot for the County. The revision of that Administrative Rule relative to the requirement that a landowner comply with the 30 and 100 foot specification was modified so that it only applied to lands owned or controlled by an owner or lessee. That was the subsequent modification that allowed ODOT to reapply. He further detailed: The intent of the primary fuel zone and the secondary fuel break, the 130 foot total, was conceptually designed by the Department of Forestry to provide a reasonable approach to fuels modification and fire safety, while at the same time considering atheistic issues, including visual impacts and noise buffering in neighborhoods. The gist is a lot more fuels modifications are done up close to the structure, and as you progressively move away from the structure, you allow for greater density and variety of vegetation. He explained: The concept worked out with ODOT was to have basically nearly zero flammable fuels throughout the total 60 -foot area. In effect, there would be less flammable fuel between the ODOT facility and the Windlinx property line than there would be if the 30 and 100 standard had been applied. It may be that a variance is not even the issue since there is also reference made in the Administrative Rule to the equivalency issue. From a fire behavior and suppression standpoint, the total lack of fuel over the distance is the issue. The concept is for the area to be totally devoid of fuels all the way up to the proposed wall or fence that has been discussed as a boundary to keep vehicle operators from wandering out into the brush and private property. Commissioner Luke: Does totally devoid of fuels mean that there is no vegetation, or is it mowed down? 18 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 John Jackson: Basically we're talking devoid of fuels. There will be pavement, gravel and cinders to break up the fuel continuity. It is possible a vehicle could explode, but there would be less risk than there is in other areas of the highway. Commissioner Luke: Are you saying that for 30 feet or 100 feet there would be no fuel? If trees are left, what is the fire danger? John Jackson: The entire area up to the property line could be devoid of vegetation. You could have some large pines strategically located, and you would break up the continuity of the ground fuels if you limb those trees up. The trees, if left, would be healthier if the brush and grass competing for water and nutrients are eliminated. Bruce White: You are indicating that you would get the same fire prevention performance in 60 feet as you would in 130 feet, as is usually required. Are you saying there is, therefore, no need for a variance? John Jackson: That's my argument, yes. And ODOT's responsibility to meet that standard expires at the end of the ground of which they have control. The discussion about a variance has confused me somewhat. Commissioner Luke: The variance must have been necessary, since it was approved. Bruce White: If some other user came in and wanted a variance similar to this one, the reduction of spacing from 130 feet to 60 feet, would your Department recommend the same kind of variance? John Jackson: It's arguable that we could. Until the issue of this weigh station came up, the Department felt that the Administrative Rule referenced residential dwellings for the most part even though it simply refers to structures. Exhibit #11, Oregon Administrative Rule, entered into the record. Commissioner Luke: Has the effect of trash and tumbleweeds been considered, and would the fence be a collector of trash that may accumulate on the property? 19 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 John Jackson: Yes. It would probably require ongoing, perpetual maintenance. Recommendations have been included in the package previously submitted to the hearings officer. ODOT personnel have participated an on-site inspection, and recommendations were made to reduce potential fire risks, including maintenance. The cut bank and the fence could also contribute to an effective firebreak. In my opinion, they have met or exceeded the equivalency for fire protection and mitigation. John Van Patten, Deschutes County Sheriff, traffic safety unit: Addressed traffic safety issues, indicating here are three officers on staff who deal with commercial vehicles, all federally certified through the Department of Transportation. He discussed logbook requirements and safety issues, and the high instance of fatalities in Oregon that involve commercial vehicles. He stressed they want to encourage a new ODOT facility somewhere in Deschutes County. He previously entered a letter dated May 5, 1999, into the record regarding these issues. Bob Bryant, ODOT: Concluded with his opinion that a very comprehensive public process has been used to identify this site as the best place for locating a weigh scale. He also stated that this weigh scale is necessary and desirable, that all pertinent issues have been properly addressed and all requirements have been met by ODOT. Commissioner Luke: You indicated you want to have a 3% slope from the scale to where the trucks enter the highway. What kind of slope is there now? Brian Dunn: About 14 feet above the grade of the roadway surface to the top of the hill. Commissioner Luke: So there will be a ten -foot cut in that bank? Brian Dunn: No, the grade of the highway isn't flat. The vertical difference between where the weigh scale will be and the highway will be different because the highway is sloped. Commissioner Luke: Do you know how much cut you'll have from the top of the hill to the where the weigh scale will be? Brian Dunn: Probably about ten feet of cut. 20 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Art Wolf, President of the High Desert Museum: Presented the appeal of members of the Museum, trustees, friends and neighbors regarding the ruling of the County hearings officer who granted ODOT's proposal to site a weigh station and truck scales at the south entrance to Bend. He stated the following: We are grateful that the Commissioners would hear our statements, realizing that the Commissioners didn't have to do so. The Museum was incorporated in 1974 as the educational dream of its founder, Don Kerr. We occupied our present location on 150 acres in 1979, when Bend was six miles away instead of the two miles away as it is now. We also hold a recorded right of first refusal for purchase of an adjoining property, 40 acres just north of the Museum currently owned by the Windlinx family. This could be even more directly affected by the proposed ODOT facility. Mr. Wolf then referred to the aerial map, and discussed current and future boundaries as well as the proximity of the Museum facility and its entrance to the proposed weigh station. Collectively we are here because the County hearings officer erroneously approved the proposal for the weigh station, in our view. We maintain that the location selected is incompatible with existing and planned land uses, unsuitable for weigh station use, and violates a number of mandatory legal requirements. We're also here because ODOT has yet to assure the community that the weigh station will not create additional traffic hazards for Museum visitors and others traveling on that portion of Highway 97. We are also here as stewards of our forested land, of the $20 million we have invested in exhibits and facilities for the education and enjoyment of our visitors, and for our permanent collections, which are an irreplaceable part of the natural and cultural heritage of the intermountain west. As we've stated before, we don't argue about the need for a weigh station. What we question, however, is the location of this proposed new weigh station. Quoting our local newspaper, it is a "lousy" location. We feel it is a bad location for many reasons, including legal ones that will be discussed by Mike McKnight and Jerry Moore, and then a summation from our attorney, Liz Fancher. County land use rules give you, as the elected leaders of the community, the right and responsibility to ask ODOT to return to the drawing board to find a better location for the facility. Tonight we are asking you to take this opportunity to do just that. Commissioner Luke: Is the 40 acres you may obtain later zoned for the expansion of the Museum? Art Wolf: We don't know that yet, but anything that we would do in that area is more of a nature reserve. All of our building is confined to about a 30 -acre area. 21 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Mike McKnight, Museum Facilities Manager: Wanted to make some clarification remarks related to the citizens" advisory committees' role, which was the only citizens group that had anything to do with the siting of the weigh station. The record will reflect that ODOT officials agree with my observation, which is that the citizens' advisory committee's role is only to establish criteria so that ODOT could make a site selection. I was on that committee and went to every meeting. We never made any observations and were never given any information as it relates to the sites themselves. We worked with them carefully, and they did a good job in finding out our criteria: safety, compatibility, and so on. Commissioner Luke: As I recall in the final Sunriver meeting, they actually made a presentation to you on their site selection. Mr. McKnight: Yes, they did, and they asked us to vote on it, we as a committee told them we didn't have any information on it and would not vote on it, and the committee was disbanded because it was the appropriate time to do so. As it relates to establishing the criteria, they did a good job. I would like to make some comments in regard to safety. Peter Russell of ODOT has on numerous occasions stated that the Museum staff is not qualified to do a safety analysis of the site. I concur that we are not qualified as traffic engineers, and are not in a position to determine level of service, projected future traffic conditions and other technical matters. On the other hand, we can make valid observations from our experience and relate them to the proposed facility. We can also study the information provided by the State's engineers and draw conclusions from their expert testimony. For the past five years I have observed the traffic at our entrance. During peak summer traffic times and high Museum attendance, it can be very difficult to use our entrance. On numerous occasions there are long lines waiting a chance to enter the highway. During this time we see a large number of RV's and tourists unfamiliar with the traffic flow and the uphill grade that's necessary for a merge with northbound Highway 97 traffic. We have had one fatality and one serious accident at our entrance in the past five years. The added complication of a scale and the associated maneuvering of trucks trying to enter the scale can only increase the difficulty of using our entrance. Nowhere in the State's testimony have they acknowledged this peak condition. We are very concerned that there will be more near misses and finally a series of accidents if this facility is constructed. Our second area of concern is the problem of trucks merging onto Highway 97 from the scale. We've shown how close it is to the Baker Road interchange, and we see there will be a series of conflicts as it relates to this particular event. The State's traffic engineer has stated that a differential speed between trucks reentering the highway and normal traffic can be hazardous. In his analysis, the proposed site, as written in September of 1997, speed differences greater than ten miles per hour greatly increase accident probability. 22 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Commissioner DeWolf: Do you mean the vehicles entering the highway as compared to the traffic that is already on the highway? Mr. McKnight: Yes. During the State's testimony in July 1998, which was the first hearing of last year, they said the average exit speed of trucks would be from 40 to 45 miles per hour, and the average speed on the highway was 66 miles per hour. I've visited the Juniper site on three different occasions to observe that operation. The speed of trucks entering the highway is very close to my observation. What I did was drive down the highway and track along beside the trucks as they entered the highway, and 40 to 45 miles per hour is quite consistent with what their testimony was. Also, as an employee, I go back and forth to the Museum on a regular basis; I think the 66 miles per hour quoted seems reasonable. What often happens is that if you are going 65 miles per hour, cars whiz by you at significantly faster speeds. I don't think the average speeds tell the whole story. Our conclusion is that there is a differential of over 30 miles per hour for a minority of trucks entering the highway as it relates to the speed of vehicles already on the highway. This is three times the allowable difference as stated in the traffic analysis. We can only conclude, using the traffic engineer's remarks again, there is a high probability for increased accidents. I hope you see why we are concerned for the safety of our guests and the motoring public. Placing a scale at this location is not compatible with existing conditions and is not a good idea. Commissioner Luke: When the Museum did its last addition, I understand that there was no traffic impact study done. Mr. McKnight: That's true. It wasn't required. We've had a visitorship of over 200,00 people a year in the past, and we're now down to about 165,000 a year. We are not contending that our improvements will increase the visitorship; instead, it is changing the experience of the guests. We feel the addition is not impacting the traffic situation. Jerry Moore, Vice President of Operations for the High Desert Museum: I have been working with the Museum for approximately 18 years. I want to speak to two issues. We find it a bit confusing that there isn't a site plan. There are a number of issues that are not understood by us regarding the layout of the facilities, the location of the signage, how the power will be brought in, etc. All of these, it's been stated, are issues that will be resolved when there is actually a site plan. It does make it harder to understand some of the issues in regard to fire danger. Without understanding what that site will look like seems to make it difficult to assess the effects of fire in the area. 23 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 The primary issue for us from an operational point of view, for our grounds and for the $20 million worth of facilities we have built over the years, is in fact fire risk. As a community we know the impact of the recent fires in the area, especially since one of the fires in Deschutes River Woods came very close to the Museum. We embarked on a program there based upon these experiences to put in place about $750,000 work of fire systems to provide additional protection. We believe as an organization that by siting this weigh station in this location it does, in fact, raise the fire risk from human impact by concentrating truck traffic and particularly maintenance issues. In an area like this, regardless of firebreaks, it does raise that risk. I will give you an example of a possibility where a firebreak could not protect us. Several years ago we had an incidence in the Museum parking lot where barrels of chemicals in the back of a visitor's truck leaked and combined, causing an explosion and blowing a 55 -gallon drum about 65 feet in the air. It would have cleared a 60 -foot firebreak. Fortunately our staff was properly trained and we were able to control the fire before the arrival of the fire department. The probability is small, but nonetheless concentrating trucks and the kind of activity associated with a weigh station does raise the risk. The weigh station site required a variance, and we feel it is inappropriate to allow siting based upon minimizing the normal requirements for a firebreak. Liz Fancher, Attorney representing the High Desert Museum: I am a local land use attorney. There is a lot of material in this appeal to cover, and in my point of view there is a lot of information that is missing that hasn't really been provided by ODOT to explain what it is that they have in mind. The problem is that in making this decision you must decide that this use is compatible with the neighborhood. How this use is constructed is certainly an important part of this decision. She submitted a letter addressing fire safety issues (Exhibit 12) and her Weigh Station Position Paper (Exhibit 13). Bruce White: Is there an issue as to whether an equivalent standard can be applied in this case? Ms. Fancher: In my opinion, no. A case decided in Multnomah County where Multnomah County adopted forest regulations that were more restrictive than those in the State Forest Regulations held that Multnomah County had the authority, and those were the governing standards. That was a court case. Commissioner Luke: The point you are making is that Deschutes County standards are stricter than the State's standards, and therefore we should enforce our own standards and the State standards do not supercede ours? 24 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Ms. Fancher: They are arguable more stringent. I personally don't believe that the language used in the Administrative Regulation gets the job done that was intended, which is to be less restrictive. What it says is that you have to maintain the firebreak on your own property. The standard on which you are considering a variance is a local standard and it can be more restrictive. Commissioner DeWolf: So the local standard, remaining at 130 feet, is more restrictive than what's being requested in this variance of 60 feet with no fuel. Ms. Fancher: Yes. I do not agree with Mr. Jackson on the reading of the Administrative Regulation in terms of it allowing an ad hoc determination of equivalency to the standards that are specified in the Rule. That's true especially in this case where the standards have been adopted by a local jurisdiction in its local ordinance. Commissioner DeWolf: So if they condemned 70 feet of the private property beyond where they have a right-of-way, they would have their 130 feet and this would no longer be an issue. Ms. Fancher: Compliance with the County standard would no longer be an issue. As far as the fire issue is concerned, we presented much of our information in a green notebook that was submitted in the original hearing. Earl Nichols, a professional forester who worked for the U.S. Forest Service for many years and who is now a consulting forester, prepared it. He has extensive training and background in forest and fire issues. I want to raise a question about the 150 -day period. Mr. Russell advised me about a month ago that ODOT may seek a writ of mandamus from Circuit Court. That's a matter of grave concern to the Museum in terms of cost to the Museum. We request that this Board make its decision within the allotted time frame and to mail the decision before June 28. Bruce White: Explained how the time frame is important. If a writ of mandamus is obtained, Circuit Court may be making the final decision. Most likely there could be no appeal to LUBA; the appeal then would go to the Court of Appeals. Ms. Fancher: One of the reasons we are so close to the deadline is that ODOT submitted new information in their final written argument when that is not supposed to happen, so the record remained open for quite a while after that. The attorney for the State has argued that they have the right to another rebuttal period, even though they've had two already. This is governed by ORS 197.763, indicating that the applicant has a right to make that final argument for an initial hearing. I don't believe it applies to a hearing like this one, which is an appeal hearing. I do not think they have a right to submit final arguments after the close of the evidence. 25 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 One question I have is what ODOT was asking for in terms of a variance. The site plan indicates a setback of 59.5 feet between the property line and the structure. Mr. Russell indicated a distance of 30 to 40 feet in the first hearing. I'm wondering if that issue is clear to the County and if we know what ODOT has actually asked for. The information keeps changing. Commissioner DeWolf: What is the answer? Bob Bryant of ODOT: The site plan we did was based on the 1995 design for the weigh station, which was due to go to contract. The weigh station that would be approved under the conditional use permit would be similar to the one we had in 1995, which would require a variance of the fire setback standards of 30 feet. The sort of prototype weigh station is in the record from the previous application. It shows 60 feet from the east edge of the weigh station building to our property line, so we're looking at a variance of 70 feet at the closest point. Ms. Fancher: I think there has been a lot of misunderstanding about what's going to be done on the site. (At this time she drew several sketches of the hillside slope, the work that will be done, the local road configuration and the traffic numbers. We are concerned with the proposed stripping of trees and other vegetation on the site, signage near the Museum property, power poles, lighting, electronic display boards, and unauthorized camping by people when the station is closed. Also a concern are trucks idling at all hours, portable toilets, the lack of screening, the 1,000+ ft. long paved ramps, graveled areas, and a 400 ft. long fence with the height and construction material unspecified. This is not a pretty entrance to Bend, is not compatible with any existing neighbors, and is not compatible with traffic flow. As indicated by the hearings officer at the hearing for this application, it is just common sense that traffic leaving the Museum and heading northbound will conflict with trucks entering the weigh station. I feel it is also common sense it is a bad idea to build a weigh station on a busy stretch of road in the middle of a steep cut slope in a visually prominent location at the entrance to Bend in a landscape management area. It is common sense that it is a bad idea to allow welding, smoking and vehicle repairs to occur in a location 30 to 60 feet from commercial forestland. It also lacks basic fire protection, such as a water source, inclusion in a fire protection district and adequate buffer areas. No amount of engineering or technical review will change these facts. No conditions of approval can correct those inherent problems. The traffic report submitted by ODOT did not clearly and specifically address this issue of merging trucks or conflicting traffic. About as far as it went was discussing things being proper distances from each other. Commissioner DeWolf: Did the Museum hire an engineer to refute ODOT's opinions or to support your position that the traffic conflict does present a safety hazard? 26 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Ms. Fancher: No, since the burden of proof is ODOT's. Thus far, in our opinion, they have not offered any evidence on that particular point. The hearings officer did not determine whether ODOT's property is actually a lot of record as required by the County. The County always requires property owners to establish the lot of record issue, and to show that they have a lawful lot of record, when it was established and what the size of the property is. None of that happened, so we're acting in a vacuum in terms of the property. ODOT has not shown that the weigh station is compatible with neighboring properties, as required by the County's conditional use criteria. This conditional use criterion allows some uses if they meet specific standards. One of those standards is compatibility with neighboring properties. In this area, this use is not compatible, but ODOT maintains that the neighbors have no right to demand it. ODOT claims, by exhibiting the timeline of the highway, that the prior existence of the highway makes this acceptable. They maintain that the weigh station should be acceptable to the neighboring properties since the highway obviously was acceptable. In fact, ODOT's proposal is significantly different than what predated the Museum. It is located a great deal further south and it's located on a steep cut slope. The prior location was a flat, level site, located further up the road away from the High Desert Museum. There is no reasonable legal argument to say that the Museum, by locating by the highway, has accepted any type of uses that are in any way related to highway construction within the highway right-of-way. This site would be within 60 feet of a commercial forest use. In the publications referenced by Mr. Jackson on fire safety and siting standards, the State Department of Forestry indicates that a setback of 300 feet from commercial logging operations is what's appropriate for timber falling to occur, not 60 feet. The hearings officer determined that compatibility with the area would be assured because this site would be shielded by vegetation. However, this vegetation is on properties other than ODOT's. The trees will be gone from the ODOT site; there will be no shielding by vegetation between the Windlinx property and the weigh station site. The hearings officer relied upon the fact that trees on the Windlinx property and other area trees will protect all the area uses. If these trees are eventually cut, there will be no screening. Another concern is potential nuisance conditions, such as the collection of paper and other litter on the site, which would provide a source of fuel for a fire. The hearings officer required once a month litter pickup; this is much too infrequent and impossible to police. ODOT will also not be able to screen neighboring properties from noise, glare, odor and other adverse aspects of a weigh station as required by DCC 18.128.040(e). I believe it violates County landscape management requirements. 27 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Any lighting would be elevated well above the height of Deschutes River Woods' homes, and above the highway. Code requires that these lights be screened from the highway. ODOT's proposal also fails to place the weigh station where it will have the least impact on nearby adjacent and area lands zoned for forest use and on a site that minimizes fire risk. This is required by DCC 18.40.060; it is also required by State Administrative Regulations relating to fire safety. There are more rules at the state level than just the OAR that was referenced by Mr. Jackson. Mr. Russell claimed that stations must be placed on congested highways so trucks can be weighed. However, ODOT traffic data shows that historically higher numbers of trucks are found elsewhere in the Highway 97 corridor. Also, information on the weigh -in -motion scales is missing from ODOT's proposal. We don't know where it will be placed and its impact on the Museum traffic. How can ODOT make an accurate traffic analysis without considering this? Bruce White: You say that this application doesn't specify where this would be? Commissioner DeWolf: Please describe to me how a weigh -in -motion scale works and how it fits into this proposal. Peter Russell, ODOT: I can't tell you exactly where it would be located. Basically a weigh -in -motion would be in the road and would not be noticeable. (He went on to explain how it works.) Commissioner DeWolf: How do you check for safety violations if the trucks don't have to stop? Peter Russell: The trucks have to have a good safety rating or they would not get the green light to keep going. Not all trucks will have them. Commissioner Luke: How far is from the hardware in the highway to the scale? Peter Russell: There's no set distance. Cable has to be run maybe two miles. It's not a separate scale site; it's a scanner in the road and wouldn't be noticeable to the motoring public. There will be a sign south of the hardware indicating that the weigh station is open, so trucks will need to be in the right lane. Ms. Faucher: (Submitted an article from the Bulletin regarding the weigh -in -motion system, Exhibit #14.) There has been no study on its impact, and it wasn't included in ODOT's application. Previous studies are based on lower numbers than those ODOT normally quotes. (Handed out ODOT statistics, Exhibit #18.) How do we know that the signage won't be placed right in front of the Museum entrance? 28 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 (She referenced Exhibit 417, ODOT traffic numbers, and Exhibit #15, the local road diagram, at this point.) ODOT also did not take into account the trucks that use Knott Road as a bypass when they did their study. ODOT explained that trucks did not do that because they aren't allowed to, and ODOT took measures to make sure this doesn't happen. This was not supported by actual evidence about truck behavior in the area. Commissioner Luke: I'd like to point out that I sat in on a meeting of residents who live on that road, and there was substantial testimony about the trucks that go down that road, especially those that are hauling aggregate. Ms. Fancher: We take exception to the truck numbers used by ODOT, as it is our opinion that they did not use true historical data and the numbers they used are incorrect. ODOT seems to come up with higher numbers to justify the need for the weigh station, but lower numbers when it is trying to justify that there won't be a conflict with other traffic. We would like to know just how many trucks there are out there, and how dangerous is it. The hearings officer approved the variance to the fuel break standards, but failed to track the basic requirements of the variance ordinance. The variance ordinance requires the hearings officer to determine that 130 foot fuel break requirement will create practical difficulties that will cause a greater private expense than public benefit. That is a precondition of the problem. First, there's no private expense since ODOT is a public entity. Second, the hearings officer failed to quantify and consider the public benefit of enforcing the fuel break standard. The benefit was never determined. There was no weighing process that occurred between the benefit and the burden on ODOT. Third, the hearings officer applied a lesser of two evils approach to the problem, saying it's not a good idea to have Mr. Windlinx's land condemned, so it's better to give ODOT an exception when that doesn't have anything to do with the private expense/public benefit test called for in the County's ordinance. When the public benefit of enforcing the minimal fire standards contained in the County's ordinance is considered, it seems obvious that it is a good idea to enforce that rule and that it would outweigh the expense of obtaining a buffer to comply with the rule. ODOT has not proven that this weigh station must be in this exact location, that it can't be elsewhere. Also, the steep sides of the hill will accelerate the spread of fire, making this a location where a variance should not be granted. In addition, a clear area of 100 feet is required by State regulations for indoor welding. There's evidence in the record showing that truckers often conduct welding operations when they are pulled over to the side of the highway. This was a concern for the State Fire Marshall when they first reviewed this proposal. We believe that level of protection is needed for outdoor operations. 29 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 The Museum asks the Board to deny the application and require ODOT to go back to the drawing board to find a better location for their weigh station. (Submitted a copy of the Citation and Comments for the record.) Bruce White: Regarding the variance and the criteria of private expense, where did you get your information? Ms. Faucher: I just read the ordinance. Bruce White: So it is your position that because there's no private expense here, they can't get a variance? Ms. Faucher: The express language of the ordinance says that it's private expense that needs to be weighed. It does appear to be the clear language. Randy Windlinx: My family owns most of the land that is adjacent to the proposed weigh station facility. (Presented a photo array board of the present view from his family's property, as well as the type of trees and other vegetation.) He indicated that the weigh station would be in the foreground, block their view; and lighting would be very much in view. Since ODOT has not presented actual building plans, there could also be a scale shack obstructing their views as well. There are many old growth forest trees, which would be obliterated if this facility is installed. It will be very noticeable to travelers on the highway. There is a natural sound barrier with the embankment the way it is now. Also, if someone pulls off the road, the steep slope is not conducive to them coming up into the trees for whatever reason. The fuel loading on my side of the fence is fairly high, as there are very strict laws now in place regarding slash burning near the highway. We have always provided and maintained fuel breaks. We allude to the additional cost that will be absorbed from the private sector from this facility. We maintained fire equipment just for this application when the scale was in its former location. When ODOT submitted its original application, they indicated they were unaware of the fuel break requirements. Once this application was withdrawn, they indicated they were starting all over again and would revisit all the issues relating to these sites. They were fully aware at that time they could not meet the fire setback requirements mandated for that F-2 zone. There are three zones that expressly identify weigh station use: F-1, EFU, and F-2. A rule called the statutory construction rule that states that whenever a use is expressly, specifically identified in a particular zone, then that's the zone it's intended to go into. It's my opinion that it isn't even a considered use in an RR -10 zone. 30 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 ODOT keeps alluding to the fact that the only portion of it that will be in the RR -10 zone is the exit portion of the facility. Anybody who has noticed other weigh stations knows that's where trucks park. It's the unofficial use of the facility when it's not in operation that is a big concern. That's unrestricted, with no access to fire equipment, radios or other safety equipment. We own the property all the way up to our fence. We have a right to use it. Just because our house sits back from the road doesn't mean we don't have a right to enjoy the full use of the entire property. And it is presumptuous for ODOT to assume that I will have to maintain my tree farm at a different, more expensive level just because they are there and the fire danger is greater. (Presented a copy of written testimony to Counsel regarding compatibility and land use) I traveled the State and took pictures of what a weigh station represents. (Presented a large poster board with oversize photographs of two weigh stations showing paper litter, plastic bags, chemical toilets, discarded cans and bottles, old tires and vehicle parts, urine containers, cigarette butts and other trash surrounding the sites.) Is this what Bend wants to have, sitting ten feet over one of the main arteries of the state as you're entered Bend. These photos were taken at Juniper Butte and Klamath Falls, about half at each location. The number of urine containers was staggering. Juniper Butte had approximately 15, and Klamath Falls had approximately 20 to 25. This is the reality of weigh stations, and this is the accepted standard for how ODOT runs its weigh stations. This should not be thrust upon the private sector. Maggie Gunn, a resident of Sunriver: Traffic is a serious problem. I'm also a Museum volunteer. In some conditions, especially if there is a lot of truck traffic, instead of turning left out of the Museum to go home, I make a right turn and loop around at the Baker Road interchange. I'm not excited about playing dodge -truck between the proposed weigh station and the Baker Road exit. ODOT gives a variety of reasons why they don't want to go to La Pine. La Pine wants them. Where is the common sense in alienating many residents who are really opposed to this particular site, when you can make them and many residents of La Pine happy. Please don't whine about weather; we all live here and we cope with it. And don't talk about a detour; the County has already decided Sunriver's post office is going to go in our business park. Trucks wanting to detour will find a lot of traffic that they won't want to deal with. There must be a way to keep them off that road. Let's try to settle on another location. Paul Heavirland, a resident of Deschutes River Woods: I live in view of the highway, and I'm concerned about ODOT's sound study. It's bad enough already, but will be much worse with trucks stopping, using their jake brakes even though that's illegal, starting and idling. I am also concerned regarding the traffic flow near Baker Road. 31 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 In addition, I just completed a trip through five states, and in none of them did I see a weigh station anywhere even close to civilization; they're out in the boondocks where they don't affect residential areas. Bend doesn't need one in its back yard. The Baker Road interchange was beautifully designed; why mess it up by having trucks coming off the weigh station and merging with the interchange traffic? Frank Paddock, President of Deschutes River Woods Homeowners Association: My previous input is on record, but I want to address something that came up tonight. I, too, am worried about the merging traffic from the weigh station. Also, I wonder what will happen if a truck is inspected and the driver has to do work to go back on the road. What about the use of welders, air guns and other tools? What about the disposal of hazardous items, such as brake fluid and antifreeze? Is there going to be room to do this work? Will there be a place to dispose of the hazardous waste and parts? Tricia Maxson, staff member of the High Desert Museum: My concern is public safety. I was involved in a pretty serious accident outside of the Museum last year, having been hit by a drunk driver. No one in this room has yet to convince me that the weigh station will not increase the traffic hazard. It's already a dangerous highway because people drive at an excessive rate of speed. Common sense tells us that the maneuvering of trucks will increase that danger. These facts must be considered. Bruce White: Do we have any rebuttal from the applicants at this time? We need to determine whether we will leave the record open, even though Mr. Hauge, who objected early in the evening regarding contacts the Commissioners might have had, and who wanted more time to examine the record, has left the meeting. If we want to maintain the date of concluding this by the end of the month, we should close the record unless there's some compelling reason to do so. Commissioner Luke: I was think of Tuesday, June 15, at 5:00 p.m. to receive new testimony and viewing of the testimony already on record. Commissioner DeWolf: I agree. What this comes down to is that ODOT has a burden of proof to show that this ought to be allowed. The appellants believe that ODOT has not made its case. Commissioner Luke: I would like to ask ODOT and the attorney for ODOT that if we close the record at Tuesday at 5:00 p.m. and leave an opportunity for the Museum and ODOT to respond to anything has been submitted until Friday, June 18, at 5:00 p.m., would that work for you? (Background discussion between Commissioner Luke, ODOT and Liz Fancher.) There will be nothing turned in from ODOT or the Museum entered into the record before next Tuesday at 5:00 p.m. The only thing to respond to, if you so choose, is public input. 32 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Commissioner DeWolf: We want to give ODOT and the Museum the opportunity to rebut whatever comes in by the end of the day next Tuesday. I don't know that three days is enough time. Perhaps we should give both sides until June 22nd for rebuttal. Commissioner Luke: I think we can go to Friday the 18th, at which time the record will be closed. If something complicated gets brought in we can give an extension. Bruce White: You will need to make an oral decision, and it will then have to be reduced to writing. I suggest that you schedule your decision that Monday. Peter Russell, ODOT: We entered a map, already in the record, regarding the zoning classifications. We will have a seasonal restriction on welding. If we're in a high fire season, any trucks requiring such work will require towing. Commissioner Luke: When will the weigh station be open? And can other vehicles use the location during off -hours? Peter Russell: It will be open 25-35 hours per week on a random basis. Random works best so that the truck drivers don't know exactly when we'll be manning it. The use of the location by trucks and other vehicles is a constant problem with ODOT. However, trash accumulation won't be a problem as ODOT does once a month cleanup. We will have an inside toilet as well. Commissioner DeWolf: Then a trucker who happens to sleep there won't necessarily have the use of facilities. Peter Russell: This is also an ongoing problem with the highway system. Kathy Lincoln, representing ODOT: A variance is needed, as the County is more restrictive than the State. The variance should be allowed, though, as there is little fire impact. Brian Dunn, ODOT: The High Desert Museum's access won't be affected, as it's already in place. Also, ODOT feels the truck count given is accurate based on the number of axles noted in its studies. We also do a physical count once every three years. One was done in September 1997. Commissioner DeWolf: The numbers are confusing. What is correct? 33 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 Brian Dunn: The burden of proof has been met for ODOT to approve service standards. We predict in the year 2017, the peak hour will have 2,000 vehicles, with 400 of those vehicles being trucks. This computes to about 1,000 trucks per day. Jason Tell, ODOT: ODOT did a noise measurement at Cheyenne Road in Deschutes River Woods, and no measurements met or exceeded the noise maximums allowed by law. Normal traffic drowns out all but one decibel of additional sound. Bruce White: Did you take into account the elevation of the scale site? Tom Wallace, ODOT Engineer: The scale will be barely higher than the highway. Jason Tell: This is a complicated process, but the elevation does not have an impact. Peter Russell: Traffic safety is a concern to all. Overweight trucks or those not properly maintained are a big hazard. Having the weigh station will require truckers to be more conscientious and to remain in compliance. Liz Fancher: (Allowed final rebuttal statement by the Commissioners) The truck count given by ODOT was a hand count of 562 trucks, done in a week in April 1995. I don't feel ODOT is using true numbers as it relates to the Museum traffic. I also disagree with ODOT's reading of the ordinance. ODOT should have to comply with all fire standards. In addition, how will hot work be enforced? ODOT cannot monitor this; and it's the responsibility of the State Fire Marshall who only works certain hours. Once a month cleaning is not adequate. In the past, ODOT also promised that toilet facilities would be available to the public at any time. Also, noise measurements done by ODOT assume a level site, not an elevated one. Commissioner DeWolf: Any more testimony? Then this portion of the hearing is concluded, and we will accept no more oral testimony. Commissioner De Wolfadjourned at 12:45 a.m., June 10, 1999. 34 Minutes of Public Hearing on Proposed ODOT Weigh Station, South of Bend Held on June 9, 1999 DATED this 9th Day of June, 1999, by the Deschutes County Board of Commissioners. ATTEST: Linda L,.8WearinRen, Chair R. Luke, Recording Secretary Tom N. DeWolf, 35