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2001-390-Minutes for Meeting April 23,2001 Recorded 4/27/2001VOL: CJ2001 PAGE: 390 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02001-390 * Vol -Page Printed: 05/25/2001 08:34:19 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: Apr. 27, 2001; 2:40 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 10 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK " ! ilv 11O N.W. Harriman St., Bend, Oregon 97701-1947 GUN] Y CLLRK (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke Mike Daly EXCERPT OF MINUTES OF BOARD WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Monday, April 23, 2001 Chair Tom De Wolf brought the meeting to order at 10:05 a.m. Present were Commissioners Tom De Wolf, Dennis Luke and Mike Daly. Also present were George Read, Kevin Harrison, Paul Blikstad and Damian Syrnyk, Community Development; Laurie Craghead, Rick Isham and Mark Amberg, Legal Counsel; Jim Bonnarens, Property Management; Tom Blust, Gary Judd and George Kolb, Road Department; Ted Schassberger, Jenny Scanlon and Susan Mayea Ross, Commissioners' Office; Sue Brewster, Sheriff's Office; Mike Maier, County Administrator; two citizens; and media representatives Jason Carr of Z-21 TV and Barney Lerten of bendnet. com. 1. Before the Board was Citizen Input. No citizen input was offered. 4. Before the Board Discussion of a Possible Decision on Whether to Hear an Appeal of the Hearings Officer's Decision to Deny a Variance to the Density and Open Space Standards to Add Lots in an Existing Planned Unit Development (Odin Falls Ranch) Commissioner Mike Daly stated that he might have to claim a potential conflict of interest on this issue as he has known Dick Mann (Richard Mann, one of the applicants) for a number of years, and has done a lot of work for him over the years. Excerpt of Minutes of Board Work Session Page 1 of 10 Pages Monday, April 23, 2001 Quality Services Performed with Pride Commissioner DeWolf asked Commissioner Daly if he would potentially make any money off his position on this issue one way or the other. Commissioner Daly replied he would not. Commissioner DeWolf then said that in that case there is no conflict of interest, although it could be perceived to be a conflict of interest by some individuals, so it's always good to be up -front about it. PAUL BLIKSTAD: The County received applications for a modification to a previously approved planned unit development, and a variance to the minimum open space standard and the maximum density requirement. (He then showed an oversized plat map to the Commissioners, and pointed out Odin Falls Ranch on the map.) Right now this is currently a big pivot irrigation field, but what we have is a decision by the Hearings Officer actually denying the variance request, and because she denied the variance request she didn't get to the issues regarding the replat or the modification. So what we have received is a notice of appeal by the applicant with a request for a de novo review. KEVIN HARRISON: The initial question for the Board is whether they want to hear the appeal. Then, if the Board does want to hear the appeal, the hearing would be held de novo, so it would really be starting all over again. One thing that just came to light this morning is that the state adopted some Administrative Rules that became effective October of 2000 that were not addressed in the staff report, by the Hearings Officer or by the applicant. They are directly relevant to this kind of application. We would bring them forward if the Board hears this. COMMISSIONER LUKE: Please be clear and put it into my language. There are now things under state law that were not brought to Hearings Officer's attention that may be appropriate to this case? HARRISON: Yes. That's right. COMMISSIONER DEWOLF: So your recommendation is that we hear this, correct? Excerpt of Minutes of Board Work Session Page 2 of 10 Pages Monday, April 23, 2001 HARRISON: Well, no, whether you hear this is entirely up to you. If you do decide to hear it, I just wanted to forewarn you that we understand that there are some newly - adopted state Administrative Rules that became effective last October, and they are directly relevant to this application, and we would need to bring them forward. They haven't been addressed so far. LUKE: Would these help or hurt the applicant? HARRISON: I think they could hurt the applicant, as they set limits on the creation of new lots within a residential area. These are new Administrative Rules that would apply. LUKE: So LCDC did it. No kidding. DEWOLF: Bob Lovlien (attorney for the applicant) makes a pretty compelling case in his notice of appeal. Is there anything in his notice of appeal that you would disagree with? Based on what I'm reading here, it seems logical to hear this appeal, unless I hear something otherwise from you guys. BLIKSTAD: The Hearings Officer felt that the applicant stood to gain a significant amount of money, and that in her mind there was not a practical hardship. She really denied it based on the fact that, in her opinion anyway, there was no practical difficulty other than clearing some weeds that are a problem in this subdivision. DEWOLF: The subdivision completely surrounds this 76 -acre parcel. BLIKSTAD: It is currently 90 acres. The entire parcel that is applied for under these applications is a little over 90 acres. It was platted as part of Phase I of Odin Falls Ranch. It wasn't designated anything; it was just designated a lot within that first phase. It wasn't clear in the old file, from 1979, what really was to happen with these 90 acres. It looked like it was supposed to be open space, but it didn't specify that in the decision and it didn't specify it on the plat. Excerpt of Minutes of Board Work Session Page 3 of 10 Pages Monday, April 23, 2001 DEWOLF: When was the original approval? BLIKSTAD: In 1979. It was originally going to be a 510 -acre planned unit development, and it was going to have 102 lots, with a five -acre equivalent density, which was allowed prior to November of 1979. In the first phase they only platted 257 acres, of which 90 was this parcel, subject to these applications. Would you like to have the applicant speak? DEWOLF: I'm just trying to get out of you guys an opinion as to whether you think we should hear this. LUKE: "Yes" or "no" works. HARRISON: The Hearings Officer stopped at the variance criteria, which are designed to be pretty rigorous. I think that the question for the Board is whether there are interpretations made of those variance criteria that you would like to discuss or revisit, and rule on separately? I really don't have a recommendation as to whether you should hear this. The variance criteria are in a lot of ways defined by case law. These variance criteria are pretty much copied verbatim across the country, so there is this case law that exists on the application of these things. As staff, I can't tell you that I see anything that is clearly wrong with how she has interpreted those criteria. Again, the question for the Board would be, do you see that, and would you like to have that opportunity. DALY: I certainly would. DEWOLF: So, the difficulty I have is that, from your interpretation, she has made perhaps an accurate conclusion; yet, Bob Lovlien's comments seem to make sense to me. I'm assuming that you have read his notice of appeal. What is wrong with what he is saying in his Notice of Appeal? Excerpt of Minutes of Board Work Session Page 4 of 10 Pages Monday, April 23, 2001 BLIKSTAD: I didn't necessarily see anything wrong. It's just that the variance criteria are always difficult and it's hard for me, anyway, in this instance to make a recommendation. DICK MANN (the Applicant): I reside at 8050 Grubstake Way, or Post Office Box 580, Redmond. DEWOLF: How far is this from the City limits? DALY: Perhaps ten miles. MANN: It's about eight miles. It's downstream from Cline Falls, seven or eight miles. You go through the Tetherow community to get to the property. It is a gated community. Gentlemen, the only reason that I ever got involved in any of this was to save my own homestead and forty-two others from intermittent devastation, the likes of which you couldn't imagine unless you saw it. I first tried for almost a year to get the owner, Mrs. Millican, to lease this property so it could be converted to a permanent meadow. It had been in mint, and there were a series of farmers who came in to try to grow mint, and whenever it wasn't watered it would grow a humongous crop of tumbleweeds. They would roll in up against the houses and there was a fire hazard there that was just absolutely terrible. You just couldn't imagine it. The houses were buried, some of them clear up to the eaves, with windrows back twenty feet. It was untenable. I was on the Board of Directors of Odin Falls Ranch, and I asked if I could head up a task force to clean up those weeds. They put up a war chest of $1,500. That was a drop in the bucket. So I put $5,000 of my own money into cleaning up those weeds, paying fellows $12.50 per hour to go around and clean up the weeds. We put the weeds in huge tarps and dragged them out to a bare spot where we could safely burn them. Excerpt of Minutes of Board Work Session Page 5 of 10 Pages Monday, April 23, 2001 "U.110"10 Somebody had to step up to the plate and do something, so I lined up a farmer to lease this place for two years, whereby the Association would subsidize it, because the farmer couldn't do it on his own. This would convert it into a permanent meadow. We got the Association to agree to fund it, but Mrs. Millican would not do it. She said she wouldn't give up here place for two years, as she was trying to sell it. She would not do it; she was very stubborn. So we decided someone had to step up to the plate, so I went in with the farmer who had agreed to lease it, and on a shoestring we bought the place for $25,000 down on a ten-year contract. By the time we get that thing paid for, we'll have $400,000 in it. If this doesn't go through, I'm here to tell you that you are not just turning me and my wife and Matt Lisignoli (the other applicant) down, but forty-two other people who all are one hundred percent behind this thing. They see it as the only way to finally take care of this problem; and all the benefits that will come from this for the Association, plus it will help us pay for the place. DEWOLF: Is this all built out, all of these lots? MANN: We have twenty-one homes there now, out of the forty-three lots, so it's just about half built. That could be an absolute diamond out there. With that field as bad as it is, Jim Hodson, a dentist who was looking to buy a place, saw the dust was blowing so badly that he wouldn't purchase. So many people have turned it down because of that. When we finally took it over and put in an interim crop of wheat, it was just like velvet. Then the lots sold like hotcakes. That's the truth. I just want you fellows to know that if you turn this down, you are not just turning me down, but forty-two other property owners. That is the truth, the whole truth and nothing but the truth. DEWOLF: Why wouldn't you just plant it in wheat every year? 161,11101011 You get about fifty percent of your money back in wheat. It's a terrible loss. When you put it into an interim crop of wheat, by the time you haul that wheat to Portland for $3.00 a bushel, you can't even get your labor costs out of it. Excerpt of Minutes of Board Work Session Page 6 of 10 Pages Monday, April 23, 2001 MANN: It's just a hopeless thing, and that's why if we can't get this through, we're going to have to let it go back to the owner. We've got probably $50,000 in it now. That will be our only option. It's just going to go back the way it was. We can't pay for that thing, and it won't pay for itself. I never dreamed that with the place zoned the way it was, MUA-10, and with everybody supporting it, that there would be any chance that our application would be turned down. I couldn't afford at my age to have stuck my neck out that far. Thank you. DEWOLF: Thank you. BLIKSTAD: We'll be bumping up against 150 days unless the applicant agrees to extend it. DEWOLF: What is the 150t" day? BLIKSTAD: It looks like May 7. LUKE: (To the applicant) Do you have a problem extending this time line? It would be virtually impossible to hold a hearing between now and May 7. MANN: No, that wouldn't be a problem. DEWOLF: Unless you can get that arranged with your attorney, Bob Lovlien, I don't think we'd have any choice but to uphold the Hearings Officer's decision, at least from my perspective. This would be simply because we'd run out of time. MANN: We'd very much appreciate a hearing. BLIKSTAD: If this is your decision, I'm sure we can get a letter between now and Wednesday to that effect. Excerpt of Minutes of Board Work Session Page 7 of 7 Pages Monday, April 23, 2001 LUKE: What are the new rules? HARRISON: The relevant standard is that any cluster or PUD cannot exceed the overall density as stated in the current zoning regulations. Current zoning regulations call for a maximum density of one dwelling unit for every 7-1/2 acres in this area. What they are proposing is one dwelling unit per five something acres. DALY: Would they qualify if they replatted and made the lots bigger? HARRISON: No, what you are looking at is the total acreage and the total number of lots. LUKE: What if they consolidated two five -acre lots and made them ten -acre lots? I My The only problem is the density. It's just the ratio of lots to acreage. They could, but I think they want a total of five new lots. Theoretically they could combine other lots, but they would end up with no net change. I think what they are trying to do is to generate capital to invest in the maintenance of this property. If there is no net change, I don't know if they would achieve the desired result. DEWOLF: Is Bob Lovelien aware of this? HARRISON: I don't think so, no; because it wasn't covered in the staff report and it wasn't in the burden of proof. DEWOLF: I don't know how much we can do without this actually being a hearing. Would it be appropriate for you or Paul (Blikstad) to contact Bob Lovelien to make him aware of this so he can talk with his clients, and we can come back next Wednesday to make a decision on how to proceed? To know that we are up against the 150 days, and to know of this new Administrative Rule, if Bob (Lovelien) reviews it and feels like his hands are tied, that would end it. Excerpt of Minutes of Board Work Session Page 8 of 10 Pages Monday, April 23, 2001 LUKE: If they are willing to waive the 150 -day time limit, waiting another week won't make any difference. That will give everyone a chance to review and research this. HARRISON: That's certainly reasonable from our point of view. We will contact Mr. Lovelien's office. DEWOLF: If you will do that, we'll shoot for deciding this next week. 11. Before the Board was Discussion and Consideration of Approval of a Notice of Intent to Award a Contract for Construction of the Mohawk Local Improvement District (Deschutes River Woods). Gary Judd of the Road Department stated that one bid came in quite a bit lower than the others. He said these were thoroughly reviews, and that Matt Day of Hooker Creek Co. really wants the job. LUKE: I move approval of this intent to award. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 18. ADDITIONS TO THE AGENDA A. Before the Board was Discussion and Consideration of Signature of an Intergovernmental Agreement between the State of Oregon Department of Human Resources - Adult and Family Services Division, Deschutes County, and the Deschutes County District Attorney to Transfer District Attorney Support Services to the State of Oregon. Mark Amberg explained that this contract represents the final terms of the agreement, and tomorrow representatives of the state will be meeting with Judge Stephen Tiktin address the contract. Excerpt of Minutes of Board Work Session Page 9 of 10 Pages Monday, April 23, 2001 Chair DeWolf asked how easy it would be for this to come back to the County. Mr. Amberg replied that the state would not agree to a permanent contract, but that the contract allows for a twelve-month notice from either party. Otherwise it is a perpetual agreement with no termination date. LUKE: I move signature of this contract. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Being no further action taken, Chair Tom DeWolf closed the meeting at 10:50 a.m. - End of Excerpt of Minutes - DATED this 23rd Day of April 2001 for the Deschutes County Board of Commissioners. Tom De W , Chair ,ennis R. Luke, or6missioner ATTEST: I�rz�4�A41 M' hael M. DalyOmmissioner Recording Secretary Excerpt of Minutes of Board Work Session Page 10 of 10 Pages Monday, April 23, 2001