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2000-85-Minutes for Meeting February 02,2000 Recorded 2/22/2000VOL: CJ2000 PAGE: 85 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-85 * Vol -Page Printed: 03/01/2000 16:43:26 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: Feb. 22, 2000; 10:59 a.m. Regular Meeting (CJ) NUMBER OF PAGES: 22 Lv� 0", 0,-� MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK K PUiV HEC 7a� - 1.2000 -CES C��Utz; �5 .e7 Board of MA w S U„ r 4?' :` !�1_(__tjW130 N.W. Harriman, Bend, Oregon 97701 ►j Y f K (541) 388-6570 • Fax (541) 388-4752 E -Mail: www.deschutes.org. Linda L. Swearingen MINUTES Tom DeWolf Dennis R. Luke DESCHUTES COUNTY BOARD OF COMMISSIONERS MEETING WEDNESDAY, FEBRUARY 2, 2000 Chair Linda Swearingen opened the meeting at 10:02 a.m. Commissioners present were Linda L. Swearingen, Dennis R. Luke and Tom DeWolf. Also in attendance were Bruce White and Rick Isham, Legal Counsel; Paul Blikstad and Geralyn Haas, Community Development; Ted Schassberger and Adriel McIntosh, Commissioners' Office; Timm Schimke, Solid Waste Department; George Kolb, Road Department; and Michael Maier, County Administrator. Also present were Lee Smith, La Pine Industrial Park; Jim Carnahan, Home Rule Charter Committee; Karena Houser, Central Oregon Intergovernmental Council; Tonia Wolf, Humane Society of Central Oregon; Barney Lerten, Bulletin Newspaper; Bob Shotwell, KICE Radio; two reporters from Z-21 TV; Ray Lakey, a Candidate for the Deschutes County Board of Commissioners' position to be vacated at the End of 2000; Deak Preble; and Six Other Citizens. 1. CITIZEN INPUT Ray Lakey, Candidate for Deschutes County Commissioner, announced that a grandson, Jeff Braden Lakey, was born at 5:00 a.m., Sunday, January 30 at St. Charles Hospital. (The Board then moved to Item 3, as the presenter of Item 2 was not yet available.) 2. PUBLIC HEARING, and Consideration of Adoption of the Central Oregon Community Investment Plan, as Required Prior to Receiving Regional Investment and Rural Investment Fund Grant Dollars from the Oregon Economic and Community Development Department MINUTES of Board of Commissioners' Meeting Page 1 of 22 Wednesday, February 2, 2000 Quality Services Performed with Pride Karena Houser of the Central Oregon Intergovernmental Council, submitted additional comments from Jill McClain, Greg McLaren, Tonia Wolf, and the Hospital Foundation regarding the Plan, and noted a correction to the first page. (Exhibit A) She further explained that it is premature at this point to discuss specific projects. Chair Linda Swearingen then opened the public hearing. Tonia Wolf, the Shelter Manager of the Humane Society of Central Oregon, then spoke. She explained that she sent in extensive comments that weren't meant to be incorporated into the Plan. She wished to point out the various services in which the Humane Society participates that may not be familiar to the public, such as services to seniors, services to victims of domestic violence, the handling of animal abuse cases, and spay and neuter programs. She noted that Central Oregon has a very high dog population, and it is a community that cares about its animals and responds well to requests for community support. She further explained that the facility is over twenty years old, with 15 kennels and 18 cat cages; but with a typical population of 45 dogs and 20 to 150 cats, plus those animals that are fostered out. She noted that a new property has been secured, and they can build if the funding comes in. Some organizations and foundations have agreed to provide matching funds. Lee Smith of the La Pine Industrial Park then spoke before the Board. He explained that with what is now in escrow and offers currently in hand, the Park is down to one available lot of 6.5 acres. He further stated that there had been some interest expressed in it as well. He said that it is crucial for them to be able to fund the infrastructure development to complete the 40 -acre small lot subdivision that has gone through the platting process, as well as the 50 -acre large lot subdivision which has a tentative plat. He stated that he had noticed in reviewing the Plan there was an emphasis on economic development in infrastructure development of rural industrial sites. He said he was pleased to see that it meets their needs, and just wanted to note that it is critical; and hopes it has the Board's support as well. Being no further comments offered, Chair Linda Swearingen closed the public hearing. MINUTES of Board of Commissioners' Meeting Page 2 of 22 Wednesday, February 2, 2000 It was decided that a motion to adopt the Central Oregon Community Investment Plan would be made at the next Board meeting, Wednesday, February 9, allowing time for the changes and comments to be incorporated into the final document. 2. PRESENTATION of a Status Report on Proposed Home Rule Charter, and a Resolution Approving a Proposed Home Rule Charter for Referral to an Election, and Authorizing the Submittal of Said Proposed Home Rule Charter to the County Clerk for Placement on the May 2000 Election Ballot Jim Carnahan of the Home Rule Charter Committee, spoke. He said this is the culmination of a three and one-half year effort to draft a successful Home Rule Charter. He presented the final version of the Charter, along with an Ordinance signed by 100% of the Committee, which is to be presented to the County Clerk today. He explained that it has been a very successful, although arduous, task, and wanted to acknowledge the work of the members of the Committee: Darrell Davidson, Peggy Speiger, Mike Hoover, James Bergmann, and Ron Bryant in addition to him. He stated that these members have been a part of this since the beginning. Deak Preble and Bob Riggs are currently serving as well, being appointed as replacements for John Larkin and Elaine Young, who both moved out of the area; and sadly Charles Trashsel died. Mr. Carnahan explained the highlights of the Charter: it does retain the existing Commissioner three-person structure, although it changes the positions to non-partisan; it eliminates four elected offices of Assessor, Surveyor, Treasurer and Clerk; and it retains elected offices for the Sheriff and District Attorney. Commissioner DeWolf stated that at the very first meeting he noted that Jim was the only one who felt a Home Rule Charter should be written. He also observed that over the course of months, virtually everyone on the Committee, having researching this issue, decided it was a good thing to write and present to the citizens of Deschutes County. Commissioner DeWolf then asked a question regarding Chapter 7, Section 7.3, which talks about the effect of Charter passage on 2000 the Commissioner election. He asked if that means this particular election in November is not affected by the Charter and remains a partisan election, should it be adopted. MINUTES of Board of Commissioners' Meeting Page 3 of 22 Wednesday, February 2, 2000 Bruce White, Deputy County Counsel replied that the election will be conducted as normal this year. Commissioner Luke also commented on the quality of the Committee's work. He inquired about the vacated position, referenced on page 3 of the Charter, as to the nominations coming from the party, with a Commission deciding on the representative. He asked from where the nominations come. Discussion followed, and it was decided it would be done as usual through an administrative process, by recruiting. Mr. Carnahan also expressed his thanks to the Board of Commissioners, as their support was well beyond the minimum required by Statute. Bruce White indicated a desire to present to the Board a record of the proceedings for its historical value, and will ask for an Order to record it in the Commissioners' Journal. At the very least, it will provide good background material for a future push for a Charter in the event it does not pass this time. Bruce White stated he will draw a Ballot Title next week, which will be published in the newspaper; and there will be a seven-day period of time available for anyone who wishes to challenge the Ballot Title. Commissioner Luke said that there is a need for the public to be highly informed about this issue so that they can make an educated choice as to how to vote. 4. SIGNATURE of Ordinance No. 2000-003, a Proposed Text Amendment to Title 22.28.050: Language for Planning Commission Review on Administrative Decisions Geralyn Haas of the Community Development Department explained the reasons for the Amendment. She said this is not a drastic change, but is meant only to allow a majority of the Planning Commission to come forward to the Board of Commissioners to recommend it review an Administrative Decision. She noted the First Reading should be conducted today, with the Second Reading to follow after two weeks. SWEARINGEN: I move to conduct the First Reading by Title only. LUKE: I second. VOTE: LUKE: Aye. DEWOLF: Absolutely. S WEARINGEN: Aye. MINUTES of Board of Commissioners' Meeting Page 4 of 22 Wednesday, February 2, 2000 Chair Swearingen then conducted the First Reading of Ordinance No. 2000- 003, by title only. The Second Reading and Signature of Ordinance No. 2000-003 is scheduled for Wednesday, February 23, 2000. 5. RATIFICATION of a Water Easement, Granted by Deschutes County to the City of Bend (LavaCrest East - Dan Kiesow, Applicant) Rick Isham, Deschutes County Legal Counsel, explained that this is not a ratification; that a water easement had been prepared in favor of the City of Bend, at which time the City of Bend proposed an alternative easement in their standard form. He said the difference between the two easements is that the City's easement form does not have some of the language that the County had included regarding restoration of the disturbed area. The easement concerns a water line located under the parking lot on the west side of the Sheriff s complex, and in order to get from the parking lot to the street, there needs to be about thirty feet of additional easement. Counsel Isham explained that Richard Bean of the City is providing a packet of information and exhibits showing the affected area. He further said that the proposed construction area can now all be located within the grass section. Chair Swearingen asked if the concern is over the restoration of the grassy area; Counsel Isham answered yes, but that the irrigation system, fencing, and the sidewalk are also a part of the restoration. Richard Bean explained that the County could be added to the City's performance bond. However, he said this has never been done before on something like this, and that it would cost approximately $3,000 to do so. He stated that the City plans to make sure that the restoration is properly done. A brief discussion of the location and details of the work followed. Counsel Isham added that there is a significant difference, and the agreement won't contain the protective language that the County originally had included. He stated that a simple agreement directly with Mr. Bean can be drawn, or the Board may presume this work will be done properly. MINUTES of Board of Commissioners' Meeting Page 5 of 22 Wednesday, February 2, 2000 Commissioner Luke asked that a simple agreement be drawn up, with an inspection to be done by the County after the completion of the work. DEWOLF: I move to approve the easement, subject to an agreement to be drawn up between Richard Dean and Deschutes County. SWEARINGEN: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. 6. DECISION on Whether to Accent or Denv Review of an Anneal of the Hearings Officer's Decision on CU -99-97, MP -99-13, and V-99-14 (a Variance to the Minimum Lot Size in the EFU Zone, a Conditional use Permit for a Non -Farm Dwelling, and a Partition to Divide a Parcel Located off Rickard Road, Bend; Applicant: Sunray, Inc.) Paul Blikstad, Community Development Department, explained that it was his understanding the Board would accept this issue for review. He state this could not come before the Board for review until the Dorman court case has been decided, or the law has been changed by the Legislature. DEWOLF: I move that we accept this review subject to receiving, in writing, the Applicant's waiver of the 150 -day rule. SWEARINGEN: I second. VOTE: LUKE: Aye. DEWOLF: Aye. SWEARINGEN: Chair votes aye. 7. PUBLIC HEARING - moved to last item on Agenda. 8. APPROVAL of Weekly Accounts Payable Vouchers in the Amount of $275,849.51. LUKE: I move approval of the Weekly Accounts Payable Vouchers, subject to review. DEWOLF: Second. MINUTES of Board of Commissioners' Meeting Page 6 of 22 Wednesday, February 2, 2000 VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. CONVENE AS THE GOVERNING BODY OF 9-1-1 COUNTY SERVICE DISTRICT 9. APPROVAL of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $4,199.03. LUKE: Move approval of the Weekly Accounts Payable Vouchers for the 9-1-1 County Service District, subject to review. DEWOLF: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. CONVENE AS THE GOVERNING BODY OF 4-H/EXTENSION COUNTY SERVICE DISTRICT 10. APPROVAL of Weekly Accounts Payable Vouchers for the 4-H/ Extension County Service District in the Amount of $1,161.52. LUKE: I move approval of the Weekly Accounts Payable Vouchers for the 4-H/Extenson County Service District, subject to review. DEWOLF: Second VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS APPROVAL OF CONSENT AGENDA Items 11 through 16 DEWOLF: Move approval. SWEARINGEN: Second MINUTES of Board of Commissioners' Meeting Page 7 of 22 Wednesday, February 2, 2000 VOTE: LUKE: Yes. DEWOLF: Absolutely. SWEARINGEN: Chair votes aye. CONSENT AGENDA ITEMS: 11. Signature of Resolution No. 2000-006, Initiating the Vacation of the Alley Lying in Block 9 and Block 16, Laidlaw Subdivision, Tumalo; 12. Signature of Order No. 2000-016, Vacating the Alley Lying in Block 9 and Block 16, Laidlaw Subdivision, Tumalo; 13. Signature of Order No. 2000-024, Accepting Petition and Setting a Hearing on the Annexation of Territory into Rural Fire Protection District No. 2; 14. Signature of an Intergovernmental Agreement Between Deschutes County and the Crook Deschutes ESD for Safe Schools Initiative Grant; 15. Signature of Order No. 2000-011, Authorizing Tax Refunds to Certain Taxpayers; and 16. Signature of a Letter Re -appointing William "Bill" Wilson to the Dog Control Board of Supervisors, with a Term Expiration Date of December 31, 2002. 17. ADDITIONS TO THE AGENDA a) Signature of Letter Appointing Dennis Luke to the Upper Deschutes Watershed Council DEWOLF: I move approval. SWEARINGEN: Second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. a) Signature of Letter Appointing Dale Mays as an Alternate Member of the Dog Control Board of Supervisors LUKE: Move approval. DEWOLF: Second. MINUTES of Board of Commissioners' Meeting Page 8 of 22 Wednesday, February 2, 2000 17 VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. ADDITIONS TO THE AGENDA (continued) b) Signature of Letter Accepting the Resignation of Loretta Slepikas from the Bicycle/Pedestrian Advisory Committee LUKE: SWEARINGEN: VOTE: LUKE: Move approval. Second. DEWOLF: SWEARINGEN: Yes. Yes. Chair votes aye. d) Commissioner Luke then explained that he had spoken with members of the Dog Control Board of Supervisors, asking them if they would be interested in doing some hearings around the County. They indicated to him that they would like to do so. He explained that this is a citizen committee with no government people involved, and it would take a small amount of staff time to implement. Tonia Wolf of the Human Society explained that they get a lot of comments from citizens who are either seeking their lost pet or reclaiming their pet. She said that for the most part it would be great to have more citizen input in this regard. Chair Swearingen called for a recess of the Board meeting until 11 a.m. RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 7. PUBLIC HEARING to Consider an Anneal of the Countv Hearines Officer's Decision on CU -99-119, MP -99-18 (a Conditional Use Permit for a Non - Farm Dwelling on a 3 -Acre Parcel That Would Be Created by a Partition of a 39 -Acre Parcel into a 3 -Acre Parcel and a 36 -Acre Parcel; Applicant: Daniel Kiesow; originally Daniel Kiesow for Christine Watkins) MINUTES of Board of Commissioners' Meeting Page 9 of 22 Wednesday, February 2, 2000 SWEARINGEN: The Hearing today will consist of one hour; if additional time is needed to complete the Hearing, a future date will be set for a continuation. Paul Blikstad, Community Development Planner, then gave an overview of the history of the application and of the appeal. BLIKSTAD: Daniel Kiesow, who previously acted as agent for Christine Watkins, has purchased the property from her, so she is no longer a party to the Hearing. The application was denied on two main issues. The first is whether the proposed non-farm dwelling would significantly alter the stability of the overall land use pattern of the area. The Hearings Officer addressed these criteria in great detail in her decision. Her conclusion was that the proposal as submitted would destabilize the existing land use pattern, and would create precedence for the approval of as many as thirty-eight additional non-farm dwellings. The second reason for denial was based on the criteria relating to the use of the property in farming and the production of livestock. It was determined even though the soils are rocky, this acreage has been used for loafing. LUKE: Is the land is flood irrigated? BLIKSTAD: I believe it is. LUKE: The point is that grazing animals need an opportunity and a place to get out of the irrigated portion of the land. BLIKSTAD: The Hearings Officer stated outright in her decision that she anticipated her decision would be appealed, and made findings on the partition standards under Title 17 of the County Code and the remaining EFU standards, and found that the remaining criteria were all met. BLIKSTAD: MINUTES of Board of Commissioners' Meeting Page 10 of 22 Wednesday, February 2, 2000 The property is 39 acres and has two existing dwellings located on it in the southeast quarter, both of which were constructed in 1955. The Assessor's records indicate the larger home is just over 1300 square feet, and the smaller home is 440 square feet. Commissioners Swearingen and Luke have expressed concerned over the fact that the proposed dwelling would be the third dwelling on the parcel. If that is a concern, staff believes that the number of dwellings could only be tied to the criteria when dealing with the stability of the existing land use pattern, and the impact of this proposal on that pattern. The applicant has submitted an outline for the Hearing today. The applicant has questioned the staff as to why this went to a Hearing in the first place. The concerns of Planning were threefold. It was determined through investigation that the 30 -foot strip along the northern property line is actually a dedicated public right-of-way. This is a minor issue that could be easily resolved, either through the applicant changing his flag lot configuration, or dedicating an extra thirty feet, making it a full sixty -foot right-of-way. The second reason was that a neighbor of the applicant called, asking how to go about putting three dwellings on one lot, which was a red flag. The third reason was the proposed dwelling would be placed in an area surrounded by farming. Therefore, it was thought that a Hearing would be appropriate to address all these issues. DEWOLF: There were a couple of times when the Hearings Officer mentioned the staff report; were we provided with this? Also, would this include the comments of the other agencies as well? BLIKSTAD: If it has not been, the complete report will be provided to all three Commissioners. DAN KIESOW: I am Dan Kiesow, the Applicant. I have purchased the property at 65797 Gerking Market Road, the subject property, from Christine Watkins, whom I previously represented. MINUTES of Board of Commissioners' Meeting Page I I of 22 Wednesday, February 2, 2000 DEWOLF: Is there a problem with this change of ownership? KIESOW: I did have the property under earnest money contract the entire time. BRUCE WHITE: Dan Kiesow had originally filed the appeal as the agent of Christine Watkins, and she signed the original application. By record, we have her consent. I don't see there being a problem with this. KIESOW: I have two tasks this morning: one, to convince the Commissioners that my applications meet all the applicable criteria for approval and that they fall short in no area; and two, to hold this hearing to those criteria. Today's hearing is not a public opinion poll. LUKE: By going de novo, anyone can bring up anything. We do not hold this to any type of agenda; it is open to anything anyone wants to say. KIESOW: I agree with what you are saying. I want to point out that there are two issues here before the Board on which the Hearing Officer denied the original application. I would like to keep this to those criteria. Staff originally approved the application, with only two minor questions regarding the road and neighbor conflict. Originally there was concern about the additional dwelling on the property, but it is not a part of the criteria and that's why staff and I didn't address it originally. The two issues I wish to address are the general unsuitability and stability issues. I'm not here to attack the Hearings Officer, but I do want to point out the incompleteness of her fact-finding. I believe the denial is based on a lack of information, and by not making a site visit. The suitability of the farm issue, in my estimation, could not be determined without a site visit and merely from photographs; nor could the similarly situated issue in regard to stability. MINUTES of Board of Commissioners' Meeting Page 12 of 22 Wednesday, February 2, 2000 KIESOW: If this property is going to create an instability issue, if the criteria calls for it to be similarly situated to other parcels, in my opinion the decision falls short by taking a too conservative approach. The Hearings Officer mentions in her findings that she has been questioned about being too conservative, but that she has to speculate because she doesn't have proper data in many cases to make these decisions. Therefore, she errs on the side of denial, just to be conservative. I am asking for a reasonable decision, which is defined as not exceeding the bounds of common sense. DEWOLF: In other words, if we don't agree with you, then we have no common sense? KIESOW: We'll have to debate that some other time. I don't wish for this to become personal, but land use issues are definitely personal issues. They can become neighbor versus neighbor, and property owner versus land use law. In terms of general unsuitability, the Hearings Officer used some photos in the file that show both the non-farm parcel and the in the background, the farm parcel. The Hearings Officer makes some erroneous references regarding sheep grazing on the less -rocky portions of the non-farm parcel. Those photos showing the sheep grazing actually are on the farm portion and not the non-farm parcel. When this was pointed out to the Hearings Officer, she disregarded my testimony. Secondly, the Hearings Officer in quoting the former owner, Christine Watkins, who testified at the public hearing, stated that on page 14 of her decision, "At the public hearing, the applicant, Watkins, testified that she has grazed horses, cattle and sheep on the subject property". However, the typed testimony of the hearing has Christine Watkins stating, "The three acres that I'm seeking to split off are extremely rocky. My horses refuse to go down there. Cattle would go down there if the neighbors' cattle were in the field, and they'd walk down to see what was going on; but they wouldn't hang out there. MINUTES of Board of Commissioners' Meeting Page 13 of 22 Wednesday, February 2, 2000 KIESOW: "My sheep go down there whenever the dogs are out in the yard because I have some wild bighorns that are afraid of the dogs, and they'll lead the whole flock down. If the dogs were not in the yard, if they were in the house where I normally keep them, the sheep prefer to lie up by the road under the junipers in a kind of grassy and sandy area." This is not part of the three acres. There are nine and one-half dry acres of this thirty-nine acres. She also states that there is a very large dry lot up near the barn by the stock pond that is the preferred area for the livestock to hang out, as opposed to the rocky area. The ground is so rough on the three acres that I'm seeking to split off that it is not a comfortable place for the animals to be. The rest of the parcel is very smooth and sandy. If you have photos, they probably show some of that. The actual part to be split off is very rough, very difficult to walk over. So you can see that the Hearings Officer's comments about raising cattle and sheep on that portion is clearly inaccurate. (At this time, Mr. Kiesow submitted photos into the record, showing the three -acre parcel.) LUKE: In context, to ask staff, when you talk about subject property, to me it is the whole thirty-nine acres, and not just a little three -acre piece. KIESOW: I'd like to read Page 14, the last paragraph, which says "At the public hearing, the applicant testified she has grazed cattle, horses and sheep on the subject property. The photographs of the proposed non-farm parcel in the record show it is not fenced off from, and is at roughly the same elevation of the rest of the subject property. The photos show no impediment to livestock on the proposed non-farm parcel." LUKE: I would point out that she said "the rest of the subject property". So when you say "subject property", she's talking about the whole thirty-nine acres and not just a little piece of it. MINUTES of Board of Commissioners' Meeting Page 14 of 22 Wednesday, February 2, 2000 SWEARINGEN: I read that differently. I think that when you say subject property, it's the three -acre piece that is asking for a non-farm dwelling. KIESOW: The question is, then, "whether the subject property can be reasonably put to farm use in conjunction with other farms in the area". That's talking about the three -acre piece. That's why it is an important issue. I asked the Hearings Officer not only at the public hearing but also again in my rebuttal to testimony to make a site visit, that I didn't feel she could make a reasonable decision without making one. From the photographs you really can't tell. DEWOLF: Even if you make a site visit, is this taped off or marked so you can tell? KIESOW: Yes, there is a fence line and flagging on the parcel. If the facts or the findings that the decision is based on are lacking, incomplete or in error, then the decision itself would also be error. That's why I hired Jim Burr, a former OSU Agricultural Extension Agent, to analyze and give an opinion of the non-farm parcel. He viewed the property and determined that it is not suitable for farm use, and is in fact 85 to 95 percent rocks. So, then, who is correct? The Hearings Officer who looked at photos and made an incorrect assumption about the photos, who misquoted the applicant's testimony, and who ignored my attempts to enlighten her in that regard; or the man who is educated in and has worked his entire career in agriculture. I think it is very clear that the parcel is unsuitable or inappropriate. The ordinance says "generally unsuitable", meaning pertaining to most or all, and inappropriate. I don't think I have to prove that animals would avoid this parcel, but rather that it is an inappropriate place for the production of livestock or farm crops. That would be abundantly clear if a site visit is made. MINUTES of Board of Commissioners' Meeting Page 15 of 22 Wednesday, February 2, 2000 DEWOLF: The Hearings Officer points out on page 15 that if these drier, treed areas are used for resting, loafing or thermal cover, that there is nothing about these areas that make them unsuitable for livestock production in combination with the rest of the subject property. So as part of the larger parcel, it might be a place for animals to rest or whatever. KIESOW: I agree, but there are nine and one-half dry acres. The ordinance specifically allows for this piece to split off if we can meet these criteria. So DCC 1816.055(b) reads: Parcels less than the EFU minimum lot size may be permitted to create one new parcel per non-farm dwelling. So, subject to the criteria that we have a remaining twenty-three acres that are irrigated, we have some remaining non -high value, non -irrigated land, we have loafing land, we have homesite land, and we have a rocky area that is not appropriate for animals to walk on. DEWOLF: What is to prevent you from, at some future date, attempting to split some more off again? KIESOW: It's in the ordinance that it can't be done. You can do one split only. BLIKSTAD: (Explained the pertinent ordinance.) There can only be one new parcel for a non-farm dwelling. And there is not enough allotted water. KIESOW: Regarding the stability issue, it needs to be defined in the context of what must happen before this event can have an effect to deny this application. In other words, it must materially alter the stability of the overall land use pattern in the area. There are two key words: overall and materially. The study area is two thousand acres. Of that two thousand acres a portion of it is EFU, not all of it. About 25% of the tax lots are non-EFU. Of those tax lots that are EFU, 18 tax lots have 23 acres of water, and therefore meet that minimum commercial designation for the TRV sub -zone. There are 29 tax lots, or 30%, that the Hearings Officer states can be "fairly characterized as rural residences or hobby farms". So it's almost a two -to -one margin that we are hobby farm to commercial farm. MINUTES of Board of Commissioners' Meeting Page 16 of 22 Wednesday, February 2, 2000 KIESOW: The second issue that defines stability is the trend, since 1993, for land use. There have been two new farm dwellings approved, and eleven new non-farm dwellings approved. That is 18% to 82%, non-farm versus farm, more than five to one non-farm dwellings. According to staff, it is unlikely there will be any new farm dwellings allowed; therefore, any new dwellings in this whole two thousand acres will probably have to be non-farm dwellings. The Hearings Officer argues that although this application continues the existing trend, the difference between my application and the existing allowances, is that my application is based on creating a new parcel. There are two parts to this application. We've got the minor partition and the conditional use. The minor partition cannot be approved without the conditional use, and visa versa. If we consider that, I've met all of the criteria for the minor partition, we must assume that it exists. For purposes of cumulative effect, when she compares mine against 41 other potential non- farm dwellings in this area, mine is not similar situated. She articulates in her findings, quoting a case that was presented before LUBA, stating there are two tests of similarly situated described therein; and she uses those tests in my application. One is that it must be in the same category of developability; the other is all those 31 vacant, non-farm parcels. So we need to compare apples with apples. These aren't in the same category. Also, they have to be of the same or smaller size. When you narrow down the field, of the ten parcels she refers to, there are only three comparable properties that meet the same criteria within the two thousand -acre study area. This information was available to the Hearings Officer, but she just didn't avail herself of it. As far as setting a precedent for a similarly situated parcel where I could affect the stability of, there are only three potential parcels that could do that. MINUTES of Board of Commissioners' Meeting Page 17 of 22 Wednesday, February 2, 2000 KIESOW: The other issue to consider is the land use pattern in the area. The parcel I wish to split off meets every one of those criteria. The final test is whether it is detrimental to agriculture; it is not about keeping open space or putting one more house in the Gerking Valley; it's about agriculture, and that's the focus of the ordinance. Another house is probably not only detrimental, but could be beneficial. It would not use up valuable farmland, and will help make the area more affordable. It is my request then, due to the incomplete and erroneous findings, and therefore the too conservative of an approach that was taken by the Hearings Officer, her decision should be overturned and the applications be approved. LUKE: In testimony in three sessions of the legislature regarding land use hearings, unsuitability and incompatibility also deal with the current farming practices of fertilizing and other farm activities. I very much supported the right to farm bills in two sessions. A house near an area that is haying at three a.m. and doing similar farm things, that also is compatibility to meet, and not just whether the piece if farmable. By putting a house in the middle of an area that is a farm community, you have to look at this, too. KIESOW: People who do pick this type of dwelling will be abundantly aware of the fact that farming will be done. There are land use laws that mitigate this. There can be conflict between neighbors, but this can happen between two farmers or farmers and non -farmers. DEWOLF: Paul, is that an accurate statement that there would be no more farm dwellings in this area? BLIKSTAD: That was staff s opinion based on most of the area, which is highly irrigated. This means that most of them are high value, which meets the $80,000 income test. Even if they are not, there's a $32,500 income test. I don't know of too many farmers meeting that test. We just don't see it anymore. S WEARINGEN: Paul, could you give us a Leo Edwards decision, so we can review it. I feel this is very similar. MINUTES of Board of Commissioners' Meeting Page 18 of 22 Wednesday, February 2, 2000 SWEARINGEN: (11:45 a.m.) I'll now open the public hearing. This is an opportunity for the public to respond, either for or against, this particular land use decision. RON DAVIS: I'm Ron Davis, Associate Broker with Professional Realty Group, representing the parties in the sale of the property. As you are making a decision on this issue, I would like to ask that you help put some coherence into our land use policy decisions. I would like for you, as elected representatives of the citizens of this county, to help keep people from being dragged through the process that they have to go through. In the Edwards case, there wasn't a single letter in opposition; you eventually looked at the issue and said it was okay. But those people were dragged through a rock pile of bureaucracy, taking a year and costing them thousands of dollars; we're seeing the same thing now. In my view, Dan Kiesow has met the criteria. The criteria needs to be such that the public will know whether they have a chance, or is this just a big, expensive gamble. As it is now, it appears that anything associated with a non-farm dwelling in EFU zoned property is going to go to a public hearing. I don't think that is in the best interest of the citizens of this county. It takes your time, it takes a lot of money on the part of the citizen, it allows a single emotional plea to sway the decision of a hearings officer, and it allows the tyranny of the majority to dictate what's going to happen on a landowner's piece of property. It is difficult to see people go through this process. I would like, as you are making your decision, to see if this process can be clarified. DEWOLF: The part that I don't think you can expect me to do is the altering of a process that I have no authority or ability to alter. What we're talking about in terms of land use criteria are far beyond our authority to dictate. We can interpret them locally the best we can, but the process is set up for a good reason, to give people from both sides the opportunity to participate in as open a process as possible. It may be expensive and it may be a pain, but he can choose not to do this. We don't require people to go through this process; they choose that. The process, as flawed as it may be, is set up to be as fair as possible. MINUTES of Board of Commissioners' Meeting Page 19 of 22 Wednesday, February 2, 2000 DAVIS: My point is that when someone makes the application, they ought to have a good idea of whether or not it may be approved. We have criteria in Section 18 that states the criteria to be used. I have a degree in agriculture and have spent years on ranches, and I have worked for the Forest Service as a range conservationist; so I have a little bit of expertise when it comes to land. In the case of general unsuitability, this land is very rocky - worse that the Edwards property - also, it's elevated, and the Hearings Officer did not even make a site visit. That's where I think she really erred, because I think her decision would have been different if she had made a site visit. DEWOLF: Even on Leo Edwards, there were three thoughtful people who really struggled with that, and came up with a two -to -one vote, so it's not going to be clear-cut from the beginning. That's part of the process. DAVIS: The other question I have is if this is not generally unsuitable for the production of livestock and/or crops, what is? The only thing I can think of is the side of a cliff, where a cow can't walk on or lie down. Something needs to be done to make sure applicants don't have to go through this long, expensive process. Regarding the land use pattern area is a little more subjective. I think the general unsuitability is a little more objective, but the land use pattern in the county is something that you should be able to decide. I would like you to consider those things as you make your decision. LUKE: I would like to point out to you that in the six years I was in the legislature, the Realtors and homebuilders have all been in there supporting the saving of farm land. That is the reason for land use in this state, the preservation of farmland. I don't think it is a waste of time to have these things come forward. In the valley, they build on better ground than we've got. The purpose of land use laws is to protect farm ground. MINUTES of Board of Commissioners' Meeting Page 20 of 22 Wednesday, February 2, 2000 DAVIS: I agree with you. And I don't think this is protecting farm ground. I would just like to know so the people I represent will know whether this kind of thing is going to be allowed or whether it should be removed from the criteria. MARTIN WINCH: I'm Martin Winch, the person who objected to this proposal in the beginning, in front of the Hearings Officer. I would like to spend some more time than is left in this hour, and there is at least one other person who would like to speak. Instead of breaking that up, if we are going to continue the hearing, can we do it all at one time. SWEARINGEN: Not a problem. If there is anyone who would like to testify at this time, please step forward. LUKE: The next time we meet, are we going to allow people who haven't indicated at this hearing that they want to testify, or will we limit it to those who are here and ready to testify today? BRUCE WHITE: We can have those who want to testify sign up on a list today, and it should be limited to them at the continuance. RON ROBERTS: I'm Ron Roberts, a Realtor with Rhino Ranch and Realty, and I am representing the prospective purchasers of the eighty acres to the west of the subject property. They have asked me to come forward and be in agreement with Dan's proposal. DEWOLF: Is it appropriate for us to make a site visit before the continuation of the hearing? And are there any 150 -day issues? WHITE: It is okay to visit the site during this time and submit your findings. PAUL BLIKSTAD: The 150 -day period is up on March 28. MINUTES of Board of Commissioners' Meeting Page 21 of 22 Wednesday, February 2, 2000 SWEARINGEN: We are continuing this hearing until next Wednesday, February 9, at 11 a.m. The meeting is adjourned. Those signing up to testify at the continuation were: ■ John Field ■ Steve Putnam ■ Martin Winch THE MEETING ADJOURNED AT 12:00 NOON. IT IS TO BE CONTINUED ON WEDNESDAY, FEBRUARY 9,-2000, BEGINNING AT 11 A.M. DATED this 3rd day of January 2000 by the Desch Commissioners. Attest MINUTES of Board of Commissioners' Meeting Wednesday, February 2, 2000 Linda L County Board of Chair anis R. Luk , I e Chair Tom DeWo , Com ' sioner Page 22 of 22