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2000-1004-Minutes for Meeting November 08,2000 Recorded 11/22/2000VOL: CJ2000 PAGE: 1004 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-1004 * Vol -Page Printed: 11/27/2000 08:46:06 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: Nov. 22, 2000; 4:07 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 31 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK t�A1CROf ED a z NOV?, a KEY. NCH NO 7 000 ----------------------------- Uv �2 Board of Commissioners 0 1130 N.W. Harriman, Bend, Oregon 97701 (541) 388-6570 • Fax (541) 388-4752 E -Mail: www.deschutes.org.. MINUTES OF MEETING Linda om N. Dewof -x" O Dennis R. Luke Chair Linda Swearingen opened the meeting at 10: 00 a. m. Present were Commissioners Linda Swearingen, Dennis Luke and Tom DeWolf. Also present were Mike Maier, County Administrator; Rick Isham, Legal Counsel; Sue Brewster, Sheriffs Office; Steve Jorgensen, Paul Blikstad, Kevin Harrison, Geralyn Haas and George Read, Community Development Department; Renee Warner, Building Services; and Timm Schimke, Solid Waste Department. Also present were Tom Blust, Road Department; approximately a dozen citizens, representatives of Sunriver and the City of Bend, and representatives of the media. 1. CITIZEN INPUT None was offered. 2. Before the Board was Discussion on Whether to Hear an Appeal of the Hearings Officer's Decision on the Eagle Crest III Final Master Plan ISHAM: I received by fax yesterday a write of mandamus that was filed in Circuit Court. Basically, this document is an application to the Court to require, in this case, the County to take awact that it is required to do under the law. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 1 of 31 Pages Quality Services Performed with Pride G7 Deschutes County Board of Commissioners CD Wednesday, November 8, 2000 Administration Building 4= 1130 NW Harriman St., Bend `J Chair Linda Swearingen opened the meeting at 10: 00 a. m. Present were Commissioners Linda Swearingen, Dennis Luke and Tom DeWolf. Also present were Mike Maier, County Administrator; Rick Isham, Legal Counsel; Sue Brewster, Sheriffs Office; Steve Jorgensen, Paul Blikstad, Kevin Harrison, Geralyn Haas and George Read, Community Development Department; Renee Warner, Building Services; and Timm Schimke, Solid Waste Department. Also present were Tom Blust, Road Department; approximately a dozen citizens, representatives of Sunriver and the City of Bend, and representatives of the media. 1. CITIZEN INPUT None was offered. 2. Before the Board was Discussion on Whether to Hear an Appeal of the Hearings Officer's Decision on the Eagle Crest III Final Master Plan ISHAM: I received by fax yesterday a write of mandamus that was filed in Circuit Court. Basically, this document is an application to the Court to require, in this case, the County to take awact that it is required to do under the law. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 1 of 31 Pages Quality Services Performed with Pride ISHAM: In this instance, the petition is to require the County to issue the land use permit that was approved in the Administrative Proceeding - this relates to the Eagle Crest application that before you right now, where there was an appeal of the Hearings Officer's decision. The matter in the Writ of Mandamus is the underlying land use permit, and not the issue of whether certain parties had standing before the Hearings Officer to appeal the underlying permit. Based on the filing of this petition for the Writ of Mandamus, it is my recommendation that the appeal of the Hearings Officer's decision be held in abeyance. In essence, the jurisdiction for whether this permit will issue is before the Circuit Court. The basis is that Oregon law requires that a final decision be made within 150 days from the date an application is deemed complete. In this instance, the application was not finally decided by the Board of County Commissioners within the 150 days plus any extensions that were granted. As a consequence, the petition before the Court asks that the Court direct the Board to issue the administrative decision, at which time the applicant would be able to proceed, if the applicant is successful in the Court. ` I have reviewed the facts on it, and it appears to be fairly clear that the final decision was not made by the Commissioners within the 150 days. Consequently, it would be my intent to admit that to the Court. LUKE: How long before the Court will make a ruling? ISHAM: It's unknown. There are two basic parties to the Writ - the County and the applicant. DEWOLF: That 150 -day period included all appeals? All appeals would have to be exhausted within that time frame? ISHAM: Correct. And the final decision must be made by the Board within that time frame. In some cases, we've asked people to waive the 150 -day requirement. Sometimes they waive it, sometimes it's merely extended. Even if there is an extension, it has to be done within the 150 days. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 2 of 31 Pages ISHAM: It would have been done in a timely manner but there was a delay in regard to other permits. The administrative decision approving this was issued with 150 days; had there not been an appeal, it would have fallen within the 150 day time period. LUKE: Do you recommend that we do not hear this appeal at this time? ISHAM: This is a determination on whether to hear it. I recommend that you defer on that decision at this time. LUKE: I move that the Board defer on this decision at this time. DEWOLF: Second VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. 3. Before the Board was Consideration of Signature of Resolution No. 2000-079, Transferring Appropriations within the Fiscal Year 2000-01 Deschutes County Budget from the Solid Waste Contingency Fund to the Solid Waste Machinery and Equipment Fund, and Directing Entries. LUKE: I move approval. SWEARINGEN: Second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. 4. Before the Board was a Public Hearing on the Adoption of the Airport Safety Combining Zone. For clarification purposes, Steve Jorgensen explained that the Airport Combining Zone has nothing to do with the possible expansion of the Bend Airport, or the moving of Nelson Road. He made a brief statement regarding the issue, which is a result of the State's required period review order. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 3 of 31 Pages Jorgensen further explained that the County is required to update its airport height combining zone, which originally only addressed height issues around airports. As a result of changes in State law, the County is now required to do some use regulations as they pertain to properties located in close proximity for the most part. The airport combining zone has been expanded upon and it is now called the Airport Safety Combining Zone. It now identifies height -restricted issues as well as use issues around the airports. (He referred to oversized maps showing the airports.) LUKE: Have you extended any of these out any farther than before? JORGENSEN: The main change has occurred with the Redmond Airport. For the most part, all of the other airports are the same. The Sisters Airport safety zones have been reduced in size. The Redmond Airport actually has a substantial change in the approach surfaces, and that reflects probably a lack of technological capabilities back when the airport height combining zone was originally done. Ordinance -wise, it references the total distance; but mapping -wise it was not complete. We are now taking into account the twenty-year plan for the Redmond Airport and a future parallel runway that would have a precision approach to it to the southwest. This has nothing to do with how the aircraft operate. This just identifies that aircraft can use this approach corridor. We regulate things that happen on the ground. The airports and the FAA regulate the aircraft. Chair Linda Swearingen then opened the Public Hearing. PAUL EISENBERG: I am the Director of Development for Sunriver Resort, which owns the airport, and is the sponsor and primary beneficiary of the ordinance. We also own the golf courses, the sewage treatment plant and other improvements that could conceivably be affected by this ordinance. We are in support of the ordinance except for some technical concerns that we have. The main concern is that the protection zone configuration may affect some existing uses, and they would become non -conforming. The problem is that even if they are grandfathered in, if those uses are damaged or destroyed, or we decide we should renovate, expand or improve them, it is conceivable that the grandfather provision would evaporate. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 4 of 31 Pages EISENBERG: We are asking for a continuance of about two weeks so that we can go through the technical language and the notes that apply to the restrictions and make sure we aren't creating problems that would be difficult to live with. DEWOLF: Can you give me an example of this? EISENBERG: For instance, there's the sewage treatment plant, and the nature center. The center is right at the end of the runway protection zone. There are those imaginary zones with sloping floors, and beneath those are restrictions as to use. We want to be sure that we are able to do something like, for instance, the observatory. JORGENSEN: It's now called the runway protection zone, and it is based on physical dimension of the actual paved runway. We're not changing how the runway is developed; the FAA and the State hand those rules down to us. They are identified as they are suited to the type of runway and type of use that runway gets. Those boundaries have not changed significantly. LUKE: How can this ordinance affect what could happen at the nature center? JORGENSEN: The new ordinance identifies uses that are appropriate within the approach corridors, the runway protection zone, and the direct or secondary impact area. The State guidelines do not go into that type of detail; they talk about residential, industrial, agricultural or commercial use in generalized terms. They say if it's permitted or whether it is not permitted. The nature center is likely in the direct impact area, and I interpret it as a permitted use there. If you expand it into the area that is the runway protection zone, however, you could have a problem. LUKE: You are asking us to discuss an ordinance that could change what people can do with their property. With the passage of Measure 7, I think legal counsel needs to review this to see if that will be a problem. JORGENSEN: There is a question, when you're talking about protected surfaces, they are federal requirements; Measure 7 exempts federal requirements. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 5 of 31 Pages (A general discussion ensued regarding the Sunriver sewage treatment plant, the equestrian facility, the Trouthouse Restaurant, and residences where pilots fly in and park their planes at their homes.) SUSAN GRAY: I live in Bend, but own property located off Old Bend -Redmond Highway. I want to know what this change might do to that parcel. Overall is there some generalization being made? JORGENSEN: In terms of approach corridors, that won't change — they are several hundreds of feet above property. Residential uses are allowed within approach corridor. It does identify the areas, and suggests certain densities within different distances. She is clearly outside of that area. Being no further testimony offered, Chair Linda Swearingen closed the Public Hearing at 10:35; she advised that the written record would be kept open for two weeks to allow for further review. 5. Before the Board was a Public Hearing on the Development Agreement Proposed by Cascade Highlands Limited Partnership, and Possible Adoption of an Ordinance Approving a Development Agreement, and Making Findings. Rick Isham, County Legal Counsel, entered the following documents into the record: ■ a copy of the City of Bend's Ordinance New Series 1757; ■ the City of Bend's Findings and Decision; ■ a copy of the Cascade Highlands Agreement that has not yet been executed by Deschutes County; ■ a copy of the City's transportation engineer's report dated September 29, 2000; • copies of the West Side Consortium Development Agreements; ■ the local improvement district petition for the southern bridge; and ■ the local improvement district petition for the west side intersections. (Above Exhibits entered into the record.) Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 6 of 31 Pages ISHAM: These are entered into the record in response to a request that the actions of the City of Bend be made a record in this proceeding. Additionally, I have a draft of Ordinance 2000-034, which does have attached to it a proposed development agreement for the future consideration of the Board of County Commissioners. The Board would sign this if it decides to approve the proposal, and the Ordinance in turn would approve the development agreement. State law requires that a development agreement be adopted by ordinance. Additionally, there is a requirement that the Board make findings in support of the decision that would be embodied in this ordinance. The Board has received copies of the findings of the City of Bend for review. The findings in support of this ordinance would be similar to those. DEWOLF: I am assuming that the City's findings are for all of the development agreements, and that we are party to just one development agreement. ISHAM: The proposal that is before the Board of Commissioners is only for Cascade Highlands Limited Partnership. They are outside of the city limits, and are under County jurisdiction. The proposal is to participate, through a development agreement, in the development of offsite improvements within the City of Bend. This would lock in their contribution to those offsite improvements. Additionally, it provides that a scope of future development would be locked in, in conjunction with that, pursuant to the development agreement. They would then have the ability to make future applications in the County for development in accordance with that development agreement. LUKE: Can the City's agreement with the developers go forward if we don't approve this? Is their agreement contingent upon ours? I'm not talking about Cascade Highlands; I'm talking about the other developers. ISHAM: I have never examined their documents with that in mind. It would be my assumption that to some extent these do operate independently. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 7 of 31 Pages DEWOLF: I have a question in conjunction with that. The $500,000 that is proposed is strictly for the southern bridge. Are there other partners contributing to that southern bridge? ISHAM: That's a good question for the applicant. LUKE: Does this keep the County from asking for further consideration when they actually submit the plan for development? ISHAM: Correct. For any allowable offsite improvements, it does not limit the ability of either the State of Oregon or Deschutes County to require additional improvements, such as roadway infrastructure that might be impacted by the development off a County road or state highway. This only relates to improvements within the city limits of the City of Bend. I received a phone call yesterday from Timothy Sercombe, who is a Portland attorney. His client is Andrew Crosby, who does some development work within the Bend area. Mr. Sercombe had previously appeared before the City, and has requested that he be able to fax comments that were previously submitted to the City to become a part of the County's record. (He submitted these comments at this time, as an Exhibit.) The hearing was left open, and I believe there are people attending today who wish to testify. At the conclusion of the hearing, depending upon the Board's decision, we'll need to develop findings to support the ordinance. If the hearing ends today, we might want to discuss the time frame under which the findings and decisions would be prepared. LUKE: The $500,000, in a broad sense, what is it considered? The attorney considers this an SDC, and the County doesn't have an SDC. Is the County acting as a pass- through from the development to the City? Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 8 of 31 Pages ISHAM: If this development were proposed, the City of Bend would be entitled to examine the impact of that development on its public infrastructure, and appear in the proceedings in respect to what type of offsite requirements might be needed to support that development. The City of Bend does not have jurisdiction over this development unless it was to be annexed, and the proposed development agreement provides for an annexation. What occurs in part as a result of the development agreement is that it quantifies the liability of this developer outside of the city limits for impacts within the city limits related to their proposed development. If they change their development agreement or their proposal in terms of density and so forth, if they increase those impacts they would not be able to rely on what was quantified in those reports with respect to those impacts. LUKE: In the strictest sense, then, it is not an SDC; it's a contribution to the City for future impacts the development might have on infrastructure. ISHAM: The best example is our new health building in the City of Bend. We did two things. We paid SDC's, and we also contributed to intersection improvements on 27th Street. Those 27th Street impacts that we paid for were not an SDC, they were basically an assessment for the ability to improve the intersection that we were impacting to function at a higher level when that intersection failed. We did not pay the full cost of that; we paid a pro -rata share cost of it. There were twenty- seven other properties that we examined in our traffic engineer's report, stating each of those would contribute to that impact. It was a cost, not an SDC. It's one of those costs that, without addressing that intersection, it was clear - based upon the engineer's report - that the intersection would fail. In this case, without making that assessment, there would be no way to realistically have access to our property, as the intersection would not function. Basically, it is not an SDC. It is a method of allowing you to go forward with your development without having to wait until improvements are someday completed. It is related more to a timing issue. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 9 of 31 Pages DEWOLF: Once, and if, these development agreements are signed, if these are appealed and it is ultimately decided that the agreements are acceptable, could a future County Commission or City Council rescind those agreements? Is there an expectation on the part of the developer that they can act on that agreement once it is adopted? ISHAM: I don't believe that the County could unilaterally change the terms of the development agreement, because it requires the agreement of all parties to the agreement. The whole purpose of the development agreement is to bind not only the developer, but also the other jurisdictions that are parties to that agreement. It does give some level of assurance to the developer who has made the proposal to be able to go forward with assurance that they can take appropriate action. They can expire over time, however; they are seven-year contracts. It appears there is no renewal clause. (A general discussion then occurred regarding the time remaining in the meeting and how many people wish to testify.) NANCY CRAVEN (representing Cascade Highland Limited Partnership): I would like to provide my answers to some of the questions that were brought up this morning. The other development agreements are contingent upon Cascade Highlands completing its development agreement with the County. If the paperwork you received from Mr. Sercombe is the same that he had submitted to the City, the City findings that have been adopted already address the issues that Mr. Sercombe raised in his letters. I would like to take a look at those letters, however, to make sure they are the ones with which I am familiar. The $500,000 is not an SDC, it's a non -reimbursable cash offer to the City with regard to impacts, not unlike the 27th Street example. It is required under the development agreement to be submitted immediately through a letter of credit. It provides that the City can pull that letter of credit upon execution of a contract for the construction of the bridge. Regarding renewal, the statute does provide for a renewal mechanism for development agreements, so there is a process under which the parties could jointly and mutually agree to provisions for renewal. Board of County Commissioners' Minutes of Meeting Wednesday, November 8, 2000 Page 10 of 31 Pages ISHAM: Dike Dean is appearing with me; he is a representative of the owner, Cascade Highlands. Tom Walker is here this morning as well; he's from W & H Pacific, the firm that has been handling the engineering work in regard to the projects. At the original hearing on this matter there were some issues directed to the traffic impact analysis and its adequacy. We asked Julie to be here, available to answer questions. Debra McMahon from the City is also here, and she may also have comments. Mr. Isham has submitted into the record all of the development agreements executed by the City, the two LID petitions and the ordinance that the City adopted. I want to insure that the County's record includes the findings adopted by the City and all of the documents referenced in those findings, including the various materials that the City's planning staff supplied to the City Council. From what I heard this morning, I think there may be additional documents supplemented. The City's decision in this case was supported by sixty-one pages of findings that addressed all of the relevant state law and city standards. (At this time, she read o, fj`' the kinds of findings the City made in support of the development agreement.) Many of the provisions of the City's subdivision ordinance that relates to orderly development and adequacy of transportation facilities are very similar to the language in the County's subdivision ordinance that would apply to Cascade Highlands. Again, the findings that are needed by the County in regard to the CHLP development agreement are very similar, and in some cases identical, to the findings that the City adopted with regard to the broader package. The one participant in the consortium that has land zoned for development outside the City is Cascade Highlands. Its development agreement needs to be ratified and adopted by the County. What is proposed is a three -party agreement, which is limited to offsite transportation mitigation inside the City. The County's action is limited to the resolution of offsite transportation mitigation for the proposed development as defined in the development agreement, only within the City. DEWOLF: Is that specifically limited to the construction of the bridge? Could it be used for a different solution? Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 11 of 31 Pages CRAVEN: The agreements provide that the consortium solution for the fixing of west side transportation has been completed as a part of the entire consortium development agreement. The agreements provide that in the event that the southern bridge is not built, the LID of $2.3 million from the other consortium members and $500,000 from Cascade Highlands, may be applied by the City to an alternate transportation infrastructure fix that would serve the same traffic that was intended to go across the bridge. You are not being asked today to take any land use approval actions. Any future uses, and any future applications relating to what has been identified as the proposed development in the development agreements, will be subject to any of your standard land use processes. You retain authority to require offsite or onsite mitigation for traffic outside the City limits. This agreement does not alter your ongoing discretion in the event that an application is filed consistent with these development agreements, to require improvements to County roads adjacent to and through Cascade Highlands, and intersections on Century Drive. There's nothing here that binds the County in regard to offsite or onsite transportation improvements. The same goes for ODOT. All that this deals with is City infrastructure. All this does is vest the standards in regard to the proposed development of Cascade Highlands. It sets a maximum density, and a type of use, as required by statute. By having those kinds of things in one column, you then do a traffic analysis that demonstrates, in regard to City offsite mitigation, that the level of use proposed in the development agreement and throughout the consortium members' development agreements, that the offsite mitigation in the City has been adequately addressed. DEWOLF: So if Cascade Highlands chose to increase that density by 5%, this agreement would be null and void. CRAVEN: Anything over the agreed-upon numbers is subject to a future transportation impact analysis, and additional mitigation can be imposed. If it is reduced, it would have no impact, and no refund would be required. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 12 of 31 Pages CRAVEN: What is really being asked of you today is to accept the City's findings on adequacy of transportation mitigation in the City. We are doing so for two reasons. One, the development agreements only apply to the transportation related issues within the City. Secondly, the destination resort ordinance requires that the applicant assures that the transportation impacts of the affected jurisdiction be dealt with as a part of the destination resort application. The affected jurisdiction in this case is the City of Bend. The City findings that address adequacy of the consortium proposal in regard to transportation impact mitigation are what are being presented to you today for your consideration. In the original County hearing on this, there was some testimony regarding the adequacy of the Kittleson report and its methodology, scope and assumptions. You have received correspondence from Mr. Dewey that raised some of those questions as well. As a part of the documents you received this morning, there is a memo from the City of Bend staff that addresses each of the issues brought up by Mr. Dewey. Because of a couple of them were raised, I would like to address them for the record. The Kittleson study is a very broad transportation assessment and analysis, covering both the near term and the long-term capacity and conductivity issues for the west side of Bend. The City's staff and transportation engineers established the methodology, the scope and the assumptions of that report. As you will see in the City findings that adopt the development agreements, the scope, methodologies and assumptions were all established consistent with the City transportation street policy. When the City established the scope of the Kittleson study, not only did they do so consistent with the discretion allotted the City transportation engineer under their street policy, they did so with a broad understanding of the downtown transportation studies, the Colorado couplet transportation studies, the Newport Avenue studies that they've done, as well as the long term predictive kind of modeling that the City does with regard to broader City transportation issues. So they have both historical data, they had current technical data, and they had the predictive data of the modeling. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 13 of 31 Pages CRAVEN: You will see in the findings that they make extensive determinations and conclusions regarding the City engineer's determination of the study area. So there was across the board concurrence by the City Council in regard to how the study area was established by the City engineer and then implemented by Kittleson. The Kittleson study was not a standard traffic study; this studied ten intersections, all the major collectors and minor arterials within the west side of Bend. It studied background traffic, existing traffic, and proposed traffic from all of the consortium's proposed developments. It did year 2007 total traffic conditions because of the seven-year length of the development agreements; and it also studied 2020 conditions. The Kittleson conclusions, which were adopted as shown in the findings, are that the offsite transportation mitigation improvements necessary to insure that the City's west side operations have been adequately addressed. They show that the construction of the required mitigation has been assigned to each consortium member, and there is a timetable, an assurance, a completion schedule, and all was wrapped into LIDs by the City. In the event that a particular consortium member does not move forward with the necessary improvements, the City has a means of insuring that the work is accomplished. So there are eleven improvements to intersections, plus the bridge, plus numerous street improvements that are identified in the agreement, plus numerous bicycle and pedestrian improvements. The consensus of the City is that all of this is adequate to accommodate the proposed developments, and that no additional offsite improvements are needed within the City, and that the consortium's proposal, including the CHLP development agreement, fully satisfies the City's standards. I had intended to make comments on how we have addressed and dealt with the issues that Bruce White raised in his initial memo. Largely, let me say that as a result of refining the development agreements, I feel that we have fully addressed the various issues raised in his memo. I also had intended to make comments with regard to some of Paul Dewey's issues; most have been addressed by City staff. I many ways he is raising issues regarding the adequacy of the Kittleson report; I think those have been fully addressed now by the City findings and my initial comments here today. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 14 of 31 Pages DEWOLF: There's nothing in here with which we would be binding ourselves to specific street construction; it's my understanding that it is all conceptual at this time. CRAVEN: Correct. Anything later would be subject to land use approval. SWEARINGEN: We'll now open the public hearing. BARBARA MCCAUSLAND: I live in Bend on the west side. I have a couple of questions. First of all, I'd like to say that I'm sorry that this development agreement is tied into the others, because I do find a number of questions regarding this agreement that seem to me make it better to hold it off and consider the others first. I want to ask if you do have the legal authority to enter into a development agreement. I don't think you did when we had the first hearing. SWEARINGEN: We had the legal authority, but what we had decided was that it was premature for us to continue the hearing process and make a decision before the City of Bend had heard it and had decided what to do. MCCAUSLAND: I wanted to know that if you agree to this development agreement, does this constitute a go-ahead for this development? LUKE: No. MCCAUSLAND: Then I'll just state my few objections to this as part of the record. First, the real traffic impacts of this development are not yet known. The real impacts on the City itself are unknown, as we don't know how the plan sits on the land. DEWOLF: You also should understand, Barbara, that all of that would be subject to a land use process. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 15 of 31 Pages MCCAUSLAND: I still feel that this is such an important item that it seems to be premature to go ahead with this development agreement. I'm concerned about water problems, too. I don't think this county needs any more golf courses that use a million and a half gallons of water a day. We have been given a warning from the water report that ten years down the line we do face problems. My third concern is wildlife habitat, and we have seen in the Brookswood hearing that there is a major deer and elk corridor. They travel through this area. I had thought that one reason it was thought a destination resort would be a good decision for this UAR land is that it would thin out the housing so that wildlife and people use could coexist. However, this development seems to be, in the number of dwellings and the uses they have designed for it, far in excess of what the maintenance of a wildlife corridor could possibly handle. PAUL DEWEY: I represent the Sisters Forest Planning Committee. DEWOLF: Can you explain what this group is? DEWEY: We formed fifteen years ago, and we're mostly residents of Bend, Tumalo, Sisters and Camp Sherman. We've been involved in land use issues and forest planning issues for fifteen years. We started in Sisters, but we really have named ourselves after the Three Sisters. There are about 85 of us, and we work in Jefferson County as well, primarily on Metolius issues and deer winter range. I am submitting materials that we previously submitted to the City Council, including a number of materials that Tim Sercombe wanted into the record on SDC charges. (He then provided a large packet of information for the record.) I wanted to address a few issues Nancy (Craven) brought up. It really only became clear to me this morning regarding whether you are binding yourself in ways that you don't realize. Even though everyone is saying, no, you aren't deciding what's going to be happening in the County in terms of upgrades to roads or other improvements that the developer needs to do, in reality you are. Because under the development agreements and the findings of the City, you would be buying off on the traffic impact analysis of Kittleson. That traffic analysis makes a number of key assumptions about the number of cars and traffic at various hours. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 16 of 31 Pages DEWEY: Say you wish to expand a road just outside of the urban growth boundary. What data are you going to use in your analysis; that is, what traffic impact analysis will the County have to use to determine how much you need to improve your roads. Under this agreement as it is currently framed, you are buying off right now on the traffic impact analysis being done by Kittleson. Your hands are going to be tied when you finally get around to deciding what kind of improvements need to be done, because in signing t his you will have bought off on set numbers. DEWOLF: They're set based on a limited number of units of construction. DEWEY: There are a number of agreements that they are assuming; but there are a lot of other assumptions that they are making that I think County staff needs to examine. You are assuming all of the risk in this, along with the City. LUKE: There is no restriction on the County, if they find there is an impact on a County road, which keeps the County from asking for mitigation. DEWEY: You need to be careful, because the data being used are being set here. And they are being set without the County doing an analysis of whether or not they agree with the traffic impact analysis. SWEARINGEN: We've had an opportunity to review it. DEWEY: There was also some mention of a Bruce White memo. I would like to see the legal issues that were addressed there. What precisely is being locked in here, what is being fixed here? That's a requirement of the statute, and I haven't seen that in the development agreement. So I don't think that has been answered. The last time we were here there was also some discussion about an indemnity agreement with regard to the risk. How was that ever resolved as to whether or not the City would indemnify the County in terms of the assumption of risk? Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 17 of 31 Pages DEWOLF: That's not a question we're going to have to ask, as I've forgotten about that one. DEWEY: Finally, in regard to the street policy, there was some mention that there was a rebuttal written by City staff to concerns I had raised about the adequacy of the traffic impact analysis. One of the responses was that it was in the discretion of the City engineer to define the scope of analysis of the area. Our concern is that there are going to be so many impacts that the narrow boundaries are really not adequate. Let me give you just one example. Visualize Newport and 91h Street. Traffic headed east at the rush hour numbers about 500 cars. Under their traffic impact analysis in the year 2007, there will be 1,100 cars going east. What about the next intersection. toward town? What about 8th, 7th, Awbrey, or the bridge? None of those places are identified or analyzed in this discussion. You're going to have a tidal wave going down Newport, and the City engineer decided that wasn't worth analyzing. They wanted to keep the analysis area small. They don't explain what's going to happen to the bridge over the Deschutes or the intersections downtown, and we think that really exceeds his discretion. DEWOLF: How is that an issue for the County? I am assuming that you are going to appeal these agreements as signed by the City. If in fact you're correct and the City has either exceeded its authority or has not met its minimal obligations, how would that impact our decision when the decision we're making doesn't connect in any way to Newport? DEWEY: In two ways. One is that you need to be very careful in adopting this traffic impact study to the extent that it is going to bind you on future decisions relating to the County. That's an example I'm giving of the narrowness of the application. Second of all, it's my hope that you, as representatives of the County, remember that we're in the County, too. LUKE: The City has duly elected officials who have responsibilities over their own jurisdiction, which now includes the entire urban growth boundary due to the annexation. For one elected body to step over another elected body, I find is very difficult. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 18 of 31 Pages DEWEY: Except in this extent, where you are being asked to sign on to this. SWEARINGEN: We're signing a very narrow focus. DEWEY: They are all connected. Everything is interwoven. DEWOLF: If we vote this down, the whole thing falls apart. Is that correct? LUKE: If that happened, the City would have to go back to the other partners and ask them if they are willing to pick up the funding. It would seem to me after dealing with the Fairgrounds this past year, that by the time a land use application comes from Cascade Highlands to the County, there might be a need for another traffic study, since those studies have a limited life. Is that correct? ISHAM: Other changes within the jurisdiction could change the reality of the assumptions. You might propose an amendment to the study. The development agreement provides that the City adopt the traffic study; it does not provide that the County adopt the traffic study. LUKE: If there is a land use application, we could require a traffic study regarding the impact on County roads. ISHAM: Under this development agreement there is a vested density. They would be vested under this agreement within that seven-year period with a right to propose development of that through individual or a single land use application. In conjunction with that, if, under our ordinances a traffic study were necessary, then we would require it be submitted. It may be that the traffic analysis that's already been performed is adequate for that, and it could be submitted or updated based on need. It's up to the applicant to decide whether the traffic impact analysis on hand is sufficient to complete their application. We would review it, and if we disagree we could reject their application as being incomplete. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 19 of 31 Pages ISHAM: It's really speculative to say that the information that currently exists would not be adequate; it may be adequate. If there is a concern that the information that was used in the analysis is incorrect in its assumptions, that's a different matter that would have to be challenged in this proceeding. LUKE: The reason I asked is that a statement was made that we are locked into this traffic analysis. We are in effect not locked into it; if our planners and engineers feel that the traffic study needs to be updated, they can require it. If the City has some concerns, they can comment on the application. DEWOLF: In your review of this proposed agreement, do you feel that we in any way are locked in that will compromise our ability to find appropriate traffic solutions? ISHAM: I don't read it that way. If circumstances change, there might be a proposal to change the development agreement to respond to those new circumstances. LUKE: What would kick that in, though, would be a land use action. Until a house is built out there or a structure is built, there is no impact. If anything changes, it will be during the application process, where everyone will have an opportunity to comment. ISHAM: I'm sure it was difficult for the traffic engineer to try to define what those future impacts might be. Kittleson looks at not only what is occurring, they also look at estimations regarding how many trips per day for what kind of uses. It's the same information used for developing SDC costs. There is a little bit of art in it, but they are skilled at this work. DEWOLF: If the traffic study years from now is found to be woefully underestimated, the City and the County are still bound by solutions that would then be shown not to meet the need? ISHAM: Correct, but only within the City. You would be able to address it. Right now there is only Skyliner Road. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 20 of 31 Pages DEWOLF: Has our Community Development staff had an opportunity to review the traffic studies? GEORGE READ: The Road Department has. DEWEY: I didn't see any analysis done by the Road Department. LUKE: The Road Department says they have not yet submitted anything. DEWEY: I would like to request that you leave the hearing open to the extent that there is some additional information out there in regard to the analysis and Bruce White's memo, and anything the Road Department might do. The rest of it is in writing, so I won't repeat it. DEBRA MCMAHON: I'm from the City of Bend Development Services Department. I've been writing down some notes to keep this meeting time tight. I can narrow this down to three central issues. They are: Are the findings adequate to support all of the work that has been done and brought forward to you in the form of the development agreement? We believe it is. We've worked extensively on those findings, we've looked at the central issue as to whether this proposal will function, and we've also looked at the impact of Cascade Highlands within that comprehensive agreement. The ways we know that this proposal will work is to look at the very core of information, which is that traffic study. The City has not only looked at the work that was required by Kittleson, but the work that we already had on hand at the City. DEWOLF: What do you mean, the work that was required by Kittleson? MCMAHON: We required the scope to be determined. The developer just doesn't submit a traffic impact analysis. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 21 of 31 Pages DEWOLF: Then Kittleson didn't require the work. MCMAHON: The City determined the scope of the information that was submitted to us. If we found areas within the study that we felt needed bolstering to meet our policy requirements, we requested and received that information. We combined all of that information with the details that we have from our modeling process, and through the traffic studies that we already have on hand. That gave us a really good background to show what kinds of impacts might occur to the City's system, and what kind of trips would be expected. We can compare that to our modeling, we can look at the other studies, and work with a group of individuals that have a lot of expertise in traffic engineering, to determine that the study was appropriate. It told us the right information. It told us what kinds of trips would be on the system, and what those impacts would be. From that information we can determine what fixes are needed to the west side. The reason that this type of development is so much different than the old piecemeal type of review where you do everything on an individual basis, one developer at a time, is because we had a comprehensive problem on the west side. This required a comprehensive solution. So, all of the developers together, working with City staff, looking at those impacts, coming up with solutions that we know will work, that's what you'll see in those findings. DEWOLF: Then, let me ask this. Does this then include all developable land and all developers that own that land, out to the UGB as it exists today? MCMAHON: Kind of. The consortium consists of a limited number of developers. The land that was included in the traffic study looks at the background growth that is derived from undeveloped land on the west side. DEWOLF: And based on its current zoning? The question that I'm leading to is that if in fact there are two or three developers that are not participating in here that could blow the assumptions and the numbers, have you taken that into account? Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 22 of 31 Pages MCMAHON: You bet. The Emmy model that we used, which is a software program that looks at our existing land uses, what's proposed on our general plan, and predicts what kinds of traffic will come from those land uses, was used in addition to the traffic study. What we found that was the assumptions in the traffic study matched what was in our predictive model. DEWOLF: So, your predictive model included all the potentially developable land out to the UGB as it exists today, and this prevents the intersections from reaching failure. SWEARINGEN: Non -consortium members would be responsible for their own improvements? MCMAHON: That's right. SWEARINGEN: So there would be potential additional revenue from other developments outside the consortium. MCMAHON: Yes. Non -consortium members would be required to not only pay SDC's, but also through their own individualized traffic analysis, tell us what is happening on the system. DEWOLF: So you'd be able to stop them if they created failure. MCMAHON: If that situation came up. That's what I was leading to. In our predictive model, in the background growth calculations that Kittleson did per the City's requirements, there's always a situation that could come up. For example, if someone wanted to develop a giant manufacturing plant of some kind on the west side, with uses that were not in the predictive model, not in the Kittleson report, not in the City records, then of course we would have to look at those impacts differently. There was a question about the comprehensive approach. Again, we felt that was appropriate. There were some questions about SDC's; that is the basis for the City. to have revenue to fix problems if they do occur. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 23 of 31 Pages DEWOLF: What are road SDC's as a percentage? Are they still at 70 or 75 percent? MCMAHON: No. City Council recently adopted a change to 100 percent. DEWOLF: What about water and sewer? MCMAHON: Sewer is at 60 percent, and water is at 75 percent. Parks are at 100 percent. In reference to the Bruce White memo, it is addressed in the findings. There is no separate document addressing his memo. You'll see that the findings cover just about everything we have. LUKE: Would it be unreasonable to ask City staff to submit a short memo showing where the comments on Bruce White's memo would be? MCMAHON: The best way to review that issue is to look at the memo, which is already in the record, and compare it to the findings. RICK ISHAM: I heard someone mention the issue of indemnity. In the initial proposal, it appeared that there might be separate agreements between the City and the developer, and the County and the developer. In that proposal, there was a concern with respect to the transfer of funds from the County to the City in terms of the relationship with the developer. Under the proposal of a joint development agreement, I think that issue resolves itself under a single agreement. In my discussions with Bruce White when he was here, the indemnity issue really was related to multiple agreements. DEWOLF: The question then becomes, what exposure do we have if something were to happen down the road where this did not work, and there were lawsuits filed? Knowing full well that if we decline to work forward, it stops the consortium, and if we move forward it allows the consortium to start; what is our exposure? Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 24 of 31 Pages ISHAM: If you decline to go forward with the agreement, no indemnity clause in the world would protect you, because that would be an independent act and the County would be responsible for breach of contract or some other type of action. The idea of development agreements, which have been around for a long time, is, under the conditions that are proposed, to vest certain aspects of the development. It gives certainty for purposes of planning for what is going to occur on that property, and it also gives comfort to the developer, knowing that they can actually go to whomever they may need to go to for financing of their development. They can show to those people exactly what their approvals will, at a minimum, be. This allows them to proceed. That's all this development agreement does. It provides certainty in two things; one is the City's contributions, and the second is the level of development that would occur within the Cascade Highlands Limited Partnership area. MCMAHON: The last thing I wanted to talk about is that there was a question about whether all of the traffic impacts are known. Just so you're aware, each particular use that is proposed by the developers is quantified in those agreements. We get that information from a manual that is used nation-wide by traffic engineers that allocates a certain number of trips for different things. That's a standard method used by most cities to determine traffic impacts. I think there was a concern earlier about the City not knowing the true impacts. Actually, we do. We go back to that model to double-check to make sure the land uses that were developed years back actually match the information we're seeing in the study. LUKE: Could you clarify the manual a little bit? MCMAHON: It's the Institute for Traffic Engineers Manual, called the ITE Manual, and it's lists a catalog of uses. DEWOLF: Even so, there's still some art to that. We've run across this a number of times in the past. It feels like we are jumping out here a little bit. This is a massive proposal, with no 100% assurance in my mind that it's going to work as projected. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 25 of 31 Pages MCMAHON: Actually, we feel very confident that it will work, based on that factual data. Yes, there is a common sense element to all of this. The way it can be approached is to look at the City and the County, both of whom have designated lands for development, and look at the infrastructure to see if that infrastructure will support those uses. DEWOLF: You've got a whole package. If you take anything out of this package and the package changes. MCMAHON: Yes, we've focused on a comprehensive solution. DEWOLF: So if the southern bridge were taken out of the mix, that increases the impact on numbers of other intersections north of there. You've had some changes in the City Council due to the election, and there are people there now who have stated that they area opposed to the southern bridge. Would the new City Council have the authority to come in after these agreements are signed and change that traffic solution? MCMAHON: We will deal with that if it happens. Our City Attorney has advised us that this particular proposal would be set. It's a contract. DEWOLF: What I would prefer to get is a response from Rick Isham that helps me to understand the extent to which I am being locked in or bound. I would like to know from our Road Department and our Community Development Department through some kind of memo that would help me to understand that we have looked at the traffic study and it has been analyzed. I believe I need that information. SWEARINGEN: I don't need it. I'll take the word of the City. I certainly believe that Kittleson is better prepared to do the traffic analysis than our own staff. I think they have had an opportunity to review it. I think the City certainly has. I'm fine with without that extra information, but if you feel you need it and feel the record needs it to support the decision, let's do it. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 26 of 31 Pages LUKE: I don't need it. But if you don't feel comfortable, do it. You should get as much information as you need to make your vote. DEWOLF: We've got our staff hired to help advise us. I would like some kind of report. LUKE: We'll need to know how long this is going to take so we can keep the record open as necessary. (A general discussion occurred regarding the timing of meeting again on this issue.) SWEARINGEN: It appears that we can make this decision on Wednesday, November 22"d. We will continue the public hearing until Wednesday, November 22"d, at approximately 10:00 a.m. During that period of time, we should have any additional written testimony to us by Wednesday, November 15th, at noon, with responses to only that additional testimony and information due by Monday, November 20`h, at noon. CONVENE AS THE GOVERNING BOARD OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 6. Before the Board was Approval of Weekly Accounts Payable Vouchers for the Extension/4-H Countv Service District in the Amount of $479.92. DEWOLF: I move approval. SWEARINGEN: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. CONVENE AS THE GOVERNING BOARD OF THE 9-1-1 COUNTY SERVICE DISTRICT Board of County Commissioners' Minutes of Meeting Wednesday, November 8, 2000 Page 27 of 31 Pages 7. Before the Board was Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $684.49. LUKE: I move approval. SWEARINGEN: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. RECONVENE AS THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY 8. Before the Board was Approval of Weekly Accounts Payable Vouchers for the County in the Amount of $526,357.96. LUKE: I move approval. SWEARINGEN: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. ADDITIONS TO THE AGENDA: (a) Before the Board was a Request to Terminate Intergovernmental Agreements with the Cities of Bend and Redmond in Regard to the Vehicle Forfeiture Law. Sue Brewster indicated the passage of Measure 3 changes the vehicle forfeiture law. Deschutes County has a vehicle forfeiture law which has been successfully utilized since 1992 for cases regarding drunk driving and driving while suspended. She said this change in the law makes it virtually impossible for the County to continue doing this, as it would be a money-losing proposition on a number of fronts. The County also has a number of intergovernmental agreements with cities within Deschutes County to do this. She asked that the Board approve the termination of those agreements. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 28 of 31 Pages LUKE: Should we terminate or suspend those agreements based on any legal challenges to Measure 3? BREWSTER: Termination would be better; they can always be reenacted. DEWOLF: Why are we doing this immediately? What's the reason? BREWSTER: It takes affect in 30 days, but there is a financial impact because we can no longer get judgments. We have to pay for towing and storage, and a processing fee; we are incurring costs that we can't recover. DEWOLF: Why can't you just establish a policy in the short term that would terminate acting upon this ordinance, rather than terminating the ordinance? BREWSTER: Because the nature of forfeiture is that we seize the vehicle at the scene and store it. We would only be terminating the intergovernmental agreements. We need to do this since we are responsible; we are incurring all of those costs that we can never recoup. DEWOLF: Why can't we just call the cities and tell them not to do this. S WEARINGEN: We need to have it in writing. During the course of the next 30 days, we're going to be incurring costs that we have absolutely no opportunity to collect upon; so we need to send a letter out immediately, letting them know they have to stop. BREWSTER: Because we have agreements in writing, we also need to let them know in writing. This is a constitutional change, it makes those agreements impossible to perform as they were signed. We also have a 30 -day notice provision. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 29 of 31 Pages ISHAM: If you seized a vehicle today, the process would not be completed within 30 days due to advertising and response times, so it would fall under the new provision. I feel you need to terminate these agreements immediately. LUKE: I move approval of drafting a letter, terminating the intergovernmental agreements relating to vehicle forfeiture. DEWOLF: Second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. (b) Before the Board was a Discussion on Bids for the Solid Waste Telephone System. WARNER: Per your previous request, I obtained two additional bids for the Solid Waste phone system. Both bids came in substantially higher than the original bid from Cascade Communications. They were more than $20,000 higher, with less work (wiring time and labor) included in the bids. DEWOLF: I move approval to proceed with the installation of this system. LUKE: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. c) Before the Board was a Discussion Regarding the Columbia Circuit PRCA Proceeds. Mike Maier indicated that the County is working out a payment to the Columbia Circuit PRCA. An accounting from Ticketmaster is expected late Thursday, so a check is required from the County to give to the PRCA on Friday for the amount received by Ticketmaster. Another check is needed on Monday for the funds received through Ticketmaster through Friday to the end of the performance, and from the gate. Board of County Commissioners' Wednesday, November 8, 2000 Minutes of Meeting Page 30 of 31 Pages He requested authorization to obtain two hand-written checks not to exceed a total of $80,000; to be signed and issued on Friday and on Monday. LUKE: I move approval. DEWOLF: I second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. d) Before the Board was a Recommendation that Commissioner Luke handle the review of bills the week of November 13 through 17, 2000. DEWOLF: I move approval. SWEARINGEN: Second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. Being no further input, Chair Linda Swearingen adjourned the meeting at 11:50 a.m. Dated this 8th Day of November 2000 for the Deschutes County Board of Commissioners. �-v Linda L. Swrarinaen, Chair ATTEST: C�UAAtiR,��-G�/v Board of County Commissioners' Minutes of Meeting Delnnis R. Luk"oKmissioner Tom DeWolf, Commissioner Wednesday, November 8, 2000 Page 31 of 31 Pages