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2002-786-Minutes for Meeting March 27,2002 Recorded 4/11/2002DESCHUTES COUNTY OFFICIAL RECORDS CJ 2002'78MARY SUE 6 HJT E S �O COMMISSIONERS' JOURNAL �� 04/11/2002 01:11:26 PM J 2� Board of Commissioners 0 At X 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF MEETING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, MARCH 27, 2002 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Present were Commissioners Tom De Wolf and Dennis R. Luke; Commissioner Mike Daly was excused. Also present were Mike Maier, County Administrator; Chris Schmoyer, Paul Blikstad, Kevin Harrison and Catherine Morrow, Community Development; Tom Blust and Gary Judd, Road Department; Dave Duncan and Suzanne Donovan, Mental Health Department; Laurie Craghead, Legal Counsel; Susan Mayea Ross, Commissioners' Office; Mike Dugan, District Attorney; Media Representative Barney Lerten of bendnet.com; and approximately 35 citizens. Chair Tom De Wolf opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 14. Before the Board was Consideration of Signature of Resolution No. 2002- 015, Establishing an Imprest Checking Account for the Health and Mental Health Departments to Allow the Handling of Miscellaneous Disbursements to Meet Client Needs. Minutes of Board of Commissioners' Meeting Page 1 of 65 Pages Wednesday, March 27, 2002 Quality Services Performed with Pride Marty Wynne explained that more special checks have had to be prepared over the past several months; it appears the two weeks it takes to produce a check through a regular check run is too long to serve client needs. An imprest account of $2,000 has been requested, and is to be replenished after receipts are processed and documents are received. The main purpose is for HIV positive clients who need housing, food and other services. It is more cost effective for Finance to handle it this way. There are several of these accounts in the county; and two signatures are required. LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 2. Before the Board was the Reading of a Proclamation, Declaring April 1, 2002 at Loismae Benson Day in Deschutes County Chair DeWolf explained that Loismae Benson is currently ill, and is almost 90 years old; and that she has been very involved in the community for many of those years. He then read a quote from Loismae from 1997. "When I was born, the doctor did not expect me to live. Now, this is the story I'm told. He put me downstairs and left me in the hands of the two ministers, a Protestant minister and a Catholic priest. Then he did what doctors do; he looked after my mother. When he left her late in the day, he came downstairs and said, 'Well, this one's going to make it, too. I'm tired, but I'm going to sit down and make out the birth certificate right away, because I won't be in town tomorrow; I'll be elsewhere. What time was she born?' Both the minister and priest looked at each other, and said, 'Before midnight'. And the doctor said, 'Oh gracious, I thought it was much later than that. I thought she was born in the morning, quite late.' 'Oh, no', the responded, 'She was born before midnight'. I was very grateful and always have been because I would not like to have been born an April fool. So my birth certificate reads March 31 st. I'm so grateful for those liberal -minded, religious men who perjured themselves and allowed me to escape being an April fool. I was born in 1912, I'm 83 years old, and I never expected to live this long, I really didn't. I don't know why, but maybe I'm just not done yet." Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 2 of 65 Pages He said when he talked with her the other day, she said, "I'm not afraid of dying; I just don't want to be there when it happens". He then read the Proclamation. LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 3. Before the Board was the Reading of a Proclamation, Declaring the Week of April 1 through 7 as Public Health Week in Deschutes County Chair De Wolf read the proclamation. LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 4. Before the Board was Consideration of Approval of the Central Oregon Community Investment Biennium Plan Ric Ingham of COIC explained that this plan is developed every biennium in order to allocate lottery funds. Each Commissioner within the tri -county region must adopt the plan; this clears the way for the COIC Board to allocate resources as appropriate. Chair DeWolf stated that he has been involved in the development of this plan for some time, and it involved representatives from all three counties, Crook, Deschutes and Jefferson, plus seven incorporated cities, and representatives from industry and business groups. Ric Ingham said that it is a multi -use document. COIC is the local council and also is the federally recognized development group. This plan must be put into place in order to get federal funding. LUKE: Move approval. DEWOLF: Second. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 3 of 65 Pages VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 5. Before the Board was a Decision on the Adoption of Amendments to Title 18 to Address House Bill 3326 (Regarding Certain Land Divisions in the Exclusive Farm Use Zone) Kevin Harrison gave a brief overview of the issue. He said the hearing was closed on March 11, and an oral decision is scheduled to be made at this time. There are four decision points facing the Board. The first question has to do with the number of new parcels for non-farm dwellings that could be created from an irrigated parcel that is bigger than the minimum lot size. The bill would allow up to two; the recommendation from the Planning Commission is one on the smaller farms and two on the bigger farms, and 80 acres is the break point between small and large. The next point would be minimum lot size for land divisions on non -irrigated parcels that are smaller than 80 acres. Historically the County has had a 20 -acre minimum lot size. The recommendation of the Planning Commission is five acres. There is no minimum lot size contained in the House Bill. The third point would be the prohibition against series partitions. The County has on the books a 1992 cutoff date; the House Bill has a July 1, 2001 cutoff date. The recommendation from the Planning Commission was to retain the 1992 date. Chair DeWolf said that they had a third option of 1997, as he recalled. Kevin Harrison replied that he thought they should not consider the 1997 option; it's really a question between the 1992 and 2001 dates. Commissioner Luke observed that the recommendations from the Planning Commission were all on split votes, and with less than a full Planning Commission. He said he couldn't find any reason for their vote. Mr. Harrison said this information is contained in the minutes. Chair DeWolf said that Frank (Deggendorfer) was at the last hearing and talked about his thinking, but he was not there for the vote. He further said that he had some correspondence with Tammy Saylors, asking for her opinion on land the division and whether to go with one lot or two. She also testified at the last hearing. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 4 of 65 Pages Mr. Harrison indicated that the fourth decision point was whether the ordinance should include an emergency clause. Commissioner Luke said that he hasn't seen anything from staff on the impact of moving the series partition from 1992 to 2001. Chair DeWolf said that there would be 31 potential lots. Mr. Harrison stated that there would potentially be 31 property owners. That would be overstated. That would be the maximum. He said he suspected the maximum would be actually be substantially less than that, because all they could do was count the number of partitions that are reviewed during that time period. A lot of the properties are already at the minimum lot size, and wouldn't be eligible for division. Thirty-one is really the maximum number, and is very overstated. Commissioner Luke added that just because a person has the ability to partition a lot off, under County rules where this has to happen on a non-productive piece of farm ground, there's no guarantee they can put a house on it. Mr. Harrison said that was correct. Most of what they are talking about is minimum lot sizes and cutoff dates. A property may be eligible based on the minimum lot size or cutoff date, but there are a lot of other factors that go into approving a land division, such as frontage and the quality of the land and those kinds of things. So, the number of properties that could actually qualify for a land division will always be somewhat less than the number that could be approved. Commissioner Luke asked if having a different date in state law than the County would have would create any problem for the public. Mr. Harrison replied that that it does create an administrative problem for staff. It forces staff to keep track of partition dates, and is another step to do in terms of research when talking with the public. It could create somewhat of a trap for the public because they might receive bad advice if they weren't familiar with the rules here. There's greater potential for error and misunderstanding. Chair DeWolf stated that he wanted to give his thoughts about this. The two simple ones for him are to go with July 2001 and to have an emergency clause, in order to align with the state. He said the other two are the most problematic; he's leaning to one lot instead of two on the parcels. His reason is that the County is kind of moving into uncharted territory. Down the road this can be changed to two lots if necessary. It is easier to add it later than to take it away if it isn't working out. That would be a lot more problematic. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 5 of 65 Pages Mr. Harrison said they're talking about land divisions on irrigated land, for those properties larger than the minimum irrigated lot size. Chair DeWolf said he is leaning to holding it to one, even though it is different than what the Planning Commission recommended. Commissioner Luke stated that if it is greater than the minimum lot size but less than 80 acres, it allows for the minimum lot size piece and one parcel. This one is greater than the minimum lot size and greater than 80 acres, the Planning Commission recommends two, and you are suggesting one. Chair DeWolf explained that he might have been confused between the two. One is all that's considered at less than 80 acres? Commissioner Luke quoted, "That land divisions on irrigated land - shall the creation of a non-farm parcel be limited as recommended by the Planning Commission, or expanded to the full extent of the law". Mr. Harrison said the full extent of the law would allow up to two non-farm parcels for any irrigated piece. Commissioner Luke stated that on irrigated land, it is suggested that state law says you can actually have two parcels plus the minimum lot size. Chair DeWolf said that this is what the Planning Commission ultimately recommended on that split vote; he agrees that this does not go to the full extent allowed by state law. Commissioner Luke said that the Planning Commission didn't make a recommendation on a minimum lot size for greater than 80 acres dry land for the two pieces that are split off. Mr. Harrison said really all they are considering with the minimum lot size was dry land, less than 80 acres. The law says that if you have dry parcels of less than 80 acres, you can create two lots. The Planning Commission did not make a recommendation on a minimum lot size greater than 80 acres. Commissioner Luke replied that he is making a recommendation that they do. He further said that in the minutes of one of the hearings, it first said that the property could never have water on it. This was clarified, indicating the land could have had water on it but it can't have water on it now. He asked the question that if someone moved the water off that parcel to another property they own, do the division under non -irrigated property rules, and bring the water back. He said his suggestion is that it be non -irrigated for a minimum of ten years. He stated he'd like to see action from staff or legal counsel on that concern. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 6 of 65 Pages Commissioner Luke said he is concerned that some games could be played with this. The whole idea of dividing non -irrigated land is that you will never get water there. He said he'd hate to see a piece of irrigated ground that has good soils have someone move the water off, do some land divisions, and bring the water back. Laurie Craghead asked about the ten-year limitation prior to applying to split a non -irrigated parcel. Chair DeWolf said this is coming in without a recommendation from the Planning Commission, and he'd like to hear it. Chair DeWolf stated that this item would be held over until the next Board meeting on Monday, April 1, in order to allow for this information to come in. This will also give Commissioner Daly a chance to participate in the decision, which the Board plans to make on Wednesday, April 3. 12. Before the Board was Consideration of Signature of a Sub -contract between Deschutes County and Serenity Lane through Oregon Health Plan Chemical Dependency Contract #100499, to Provide CODA Services Dave Duncan explained that this is a continuing contract. There are no changes from the original, and the appropriate attachments are now included, per Legal Counsel. LUKE: Move approval, subject to legal review. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 13. Before the Board was Consideration of Signature of a Memorandum of Understanding between Deschutes County and the Crook Deschutes Education Service District for Ready Set Go Program Services Dave Duncan stated that this is for various services for children 0 to 5 years old. The agreement was to start in November, but the state cut the funding, and then added it back in. The state once again cut the funding and added the funding back in; it is currently in place for the balance of the fiscal year. LUKE: Move approval, subject to state funding. DEWOLF: Second. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 7 of 65 Pages VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 6. Before the Board was a Limited De Novo Hearing on Remand on the Barclay Meadows/Sisters School District UGB Expansion (CDD FILE Nos. PA-99-5/ZC--99-3 - Sisters School District No. 6 and PA-99-41ZC--99/1- Barclay Meadows Business Park, LLC) CHRIS SCHMOYER: LUBA (the Land Use Board of Appeals) issued an order for a remand on the Board's decision approving these files for further findings on one assignment of error raised by the petitioners. The one issue subject to remand for the County to make additional findings on is under OAR 660.012.0060(2)[C]. Those criteria are provided on the overhead. (He referred to an overhead of the OAR pertaining to this topic.) The criterion essentially is going to require findings whether the amendment to the Sisters Urban Growth Boundary allows uses or levels of traffic inconsistent with the functional classification of the functional intersections. The hearing is limited to testimony by parties to the remand, directed only at this single criterion. The Board issued decisions approving this application on January 26, 2000. These applications received tentative approval to change the plan designation and zoning of the subject parcels from agriculture to industrial, and from exclusive farm use to light industrial respectively, and include the subject property within the Sisters Urban Growth Boundary. Ultimately the applicants propose to annex the property inside the City of Sisters. The subject properties are identified on the County Assessor's map 15-10-24, Tax Lots 103 and 500. (He then referred to an oversize map showing the parcels.) They are located west of Camp Polk Road, and are adjacent to the city limits of Sisters. On August 31, 2001, LUBA remanded the cases back to the County for further review on this single issue. The matter was appealed to the State Court of Appeals; on January 23, 2002, the Court of Appeals affirmed LUBA's opinion necessitating the hearing on remand. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 8 of 65 Pages LUKE: For the record, there were quite a few items that were appealed, and LUBA upheld how many? LAURIE CRAGHEAD: The petitioners withdrew three of their assignments out of twenty-seven, reducing it to twenty-four assignments; and LUBA remanded on one. LUBA upheld us on the other assignments for various reasons. Because of this, the notice that went out for this hearing stated that this is a limited de novo hearing only on the one issue. I recommended to the Board that because of the notice and because of the remand order, the only testimony would be on that issue and no others, such as views, odors, noise and things like that. LUKE: So the issue we're looking at is just the transportation plan for the project or for the City of Sisters, or both? What you're looking for is whether it results in levels of travel or access inconsistent with the functional classification of the transportation facility. There were submittals by the applicant related to the City's transportation system plan, which it did not have at the time of the application; and whether this particular proposal significantly affects the transportation facility. There has been a submission of a letter from Aron Yarmo, representing several of the members of Friends of Trapper Point and several individuals who are intervener petitioners in the case. You also received submittals from the applicant; a memorandum that included exhibits A through K. Those are the only submittals staff and I know of. (The letter from Aron Yarmo was submitted to the Board at this time) LUKE: This letter addresses things that are not permissible. CRAGHEAD: Correct. The last few words of the letter do. Chair De Wolf then read the opening statement, which follows. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 9 of 65 Pages I. Introduction A. This is a limited de novo hearing on remand from the Land Use Board of Appeals in Case Numbers 2000-027 and 2000-028. The cases were consolidated on appeal and are again for purposes of this remand hearing. B. For this hearing, the Board will hear testimony that relates only to Oregon Administrative Rule 660-012-0060(2)(C). LUBA's remand was for further findings on this issue. No testimony on any other issues will be allowed. II. Burden of Proof and Applicable Criteria The applicants have the burden of proving that they are entitled to the land use approval sought based upon the criteria which is the subject of this hearing. III. Hearings Procedure A. The Board's decision on this application will be based upon the record before the Board prior to the appeal to LUBA, the Board's prior decision, the LUBA opinion and the testimony and evidence presented at this hearing. B. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing, which is also projected on the wall. C. Failure on the part of the applicant or any other person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. D. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. IV. Order of Presentation A. The hearing will be conducted in the following order. 1. The staff will give a report. (This has already been done.) Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 10 of 65 Pages 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the appeal will then be given a chance to testify and present evidence. When all other proponents have testified, opponents to the appeal will then be given a chance to testify and present evidence. 4. After both proponents and opponents have testified, the proponents will be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the proponents presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. If requested by any party, the Board, at its discretion, may either continue the hearing or leave the record open for a specified period. Are we under any time constraints? Laurie Craghead explained there is a time limit of 90 days; and that this runs out on April 23, unless there is a waiver by the other parties in the appeal - the petitioners and petitioner interveners - the opponents. D. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 11 of 65 Pages V. Pre -Hearing Contacts, Biases and Conflicts of Interest A. Do any of the Commissioners have any ex parte contacts, prior hearing observations, biases, or conflicts of interest to declare? If so, please state the nature and extent of those. LUKE: Only from the previous hearings on the original land use, so we heard all that testimony. I haven't had anything since then. DEWOLF: Is there any bias since we already approved this matter? CRAGHEAD: It would only apply to this particular issue, whether you have already decided on this specific issue. DEWOLF: I've only had conversations with legal counsel on this. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? None were offered. DEWOLF: Hearing no challenges, I shall proceed. We have received extensive information from Ball Janik Attorneys on behalf of the Barclay Meadows Business Park and the Sisters School District. If you want to add any more, this is your opportunity to testify. Kristin Udvari of the firm Ball Janik, and David Natowski, a traffic engineer with David Evans & Associates, then spoke on behalf of the applicants. We're here today on behalf of the School District and Barclay Meadows. As a preliminary matter, I'd like to point out that the letter you received today from Aron Yarmo, is on behalf of Friends of Trapper Point. However, one of the people listed in that letter, Richie Langfield, is not a party to the proceedings below. As Laurie said, only parties to the proceedings can testify at this hearing. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 12 of 65 Pages UDVARI: The purpose of this hearing today is to adopt findings on the limited issue of whether the UGB amendments and the related zone changes proposed by the school district and Barclay Meadows are consistent with one element of the transportation planning rule. LUBA's order was narrow, and the hearing and the findings need to be limited to that issue. I'm going to explain the findings that LUBA's order requires, and also explain the findings that the school district and Barclay Meadows propose that you adopt. LUBA did not find that the proposals to amend the UGB and change the zoning were inconsistent with the transportation planning rule. Rather, they found that the Board's findings on one element of the transportation planning rule was not sufficiently developed. The transportation planning rule regulates comprehensive plan amendments and zone changes, and it requires mitigation if such a proposal significantly affects the transportation facility. "Significantly affects" in this context is a term of art; and it can significantly affect the facility in one of four ways. LUBA found that, with respect to the first, second and fourth way that you can significantly affect a facility, that the Board's findings were sufficient. The third issue, or the third way, which is regarding consistency with the functional classification of a transportation facility is what is of issue in this hearing. We've submitted proposed findings, and those findings suggest that you analyze this criterion in three different ways, just to make sure that you cover all of your bases; that is in part because LUBA's order did state that this particular criterion is actually not usually the subject of an appeal. Therefore, there is not a lot of LUBA case law on what exactly it means to comply with it. The first way that we suggest that you indicate compliance with this criterion is to examine the general descriptions of the functional classifications of the affected roadways to determine whether the amendments will allow these properties that are affected by the proposals to utilize the roadways in a manner not contemplated by the classifications. The County Comprehensive Plan, the City of Sister's Comprehensive Plan, the Oregon Highway Plan, and the newly adopted Sisters TSP (Transportation System Plan) set forth functional classifications and descriptions of each of those roadways. We have two different functional classifications at issue here. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 13 of 65 Pages DEWOLF: When you refer to the City's Comprehensive Plan; you're not talking about the one that is currently under review and expected to be adopted. You're talking about the one that is in existence. UDVARI: Exactly. With our submittal packet, we included a couple of excerpts from that plan. That was the one that was actually in effect and acknowledged at the time the applications were submitted. The two types of functional classifications that we have at issue here are state highway, which is Highway 20; and collectors. Those are Pine, Locust and the future Barclay Drive extension. State highways are designed to carry regional traffic, provide mobility between cities and regions not served by interstate highways, provide connections for intra -urban and intra -regional trips, and local access may be a priority within a special transportation area. Collectors are designed to carry local traffic, provide traffic circulation between neighborhoods and the arterial street system, and local access is a priority. These applications propose travel and access consistent with these functional classifications because (1) the properties would be directly served by collectors which are designed to carry local traffic to properties such as these; and (2) the highway, will funnel traffic from the outlying rural areas and other cities to the collectors, which will in turn direct the traffic to the properties. The highway will not provide direct access, but will accommodate intra -urban and intra- regional trips. Thus, based solely on an analysis of the general functions of each roadway, the Board could find that the UGB amendments would not create travel that is inconsistent with the purpose of these roadways. Moving on to the second level of analysis, if you assume that numerical performance standards were also relevant to this determination, meaning if you looked not only at the descriptions of each functional classification but also at the performance standards that would regulate intersections on those roadways, we would suggest that there are two ways to analyze compliance if performance standards are relevant. The first is to find that there are actually no performance standards applicable to this case. Performance standards are expressed as volume to capacity ration, or VC ratio. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 14 of 65 Pages UDVARI: In this case, at the time that the applications were submitted, there was no local transportation system plan. This Board found in the prior decisions that, in the absence of a local transportation system plan at the time the applications were submitted, there is simply no performance standards that are relevant to a determination of compliance with the TPR - the transportation planning rule. Therefore, LUBA found that it's the law of this case that that determination stands, because it was not challenged. Therefore, if you're looking to performance standards to determine consistency with subsection C, the likelihood is that there actually are no performance standards that would affect your determination. DEWOLF: And LUBA's decision affirms that. UDVARI: Yes. However, to cover all of your bases, if you want to assume that first, performance standards are relevant and that there might actually be performance standards applicable, you would also find that the amendments are consistent with subsection C. That is because the applicants provide various traffic studies. Those studies analyzed the affected intersections on the various roadways based on the performance standards set forth in the Oregon Highway Plan, to acknowledge the possibility that the OHP standards actually applied in the absence of a TSP. The applicants' studies demonstrate that all affected intersections will continue to comply with the performance standards throughout the twenty-year planning period with the improvements proposed and funded by the applicants. The Board also made this finding, with respect to compliance with subsection D of the transportation planning rule, which specifically addresses performance standards. To insure that the necessary intersection improvements will occur in a timely fashion, the applicants entered into development agreements with the City and the County to guarantee proportional contributions to the intersection improvements. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 15 of 65 Pages UDVARI: This Board and the City reviewed and approved those development agreements, and they've been adopted. We've also submitted an additional traffic memorandum from David Evans & Associates to summarize the previous traffic studies for your convenience; and also to provide additional information regarding the intersection of the Barclay Drive extension and Highway 20, which, based on new factual information from ODOT, will actually perform at a better level than previously anticipated in the earlier studies. DEWOLF: It doesn't show on this map where Barclay Drive will be extended to Highway 20. (Referring to an oversized map of the area) David Natowski referred to the oversized map and explained where this road would go. He also explained that Camp Polk Road is called Locust inside the city limits, and Squawback Road is called Pine. DEWOLF: I don't want to create any controversy, but I'd like to see if the names of the roads could be cleaned up. Having roads that change names periodically makes it difficult for emergency response. That's separate from this hearing. UDVARI: If you have any questions about the traffic studies that we spoke of, we'd be happy to answer them. Our submittal does outline how the performance standards will continue to be met throughout the planning period. LUKE: Have there been any additional meetings or agreements with the Oregon Department of Transpiration since this application was approved by the County, regarding transportation issues in the City of Sisters? NATOWSKI: They have some ongoing studies for the intersection of Highway 20 and Barclay Drive. They've been doing some capacity analysis as a signalized intersection to develop what the lane configurations would look like. I'm not certain of any intergovernmental agreements between ODOT and the City of Sisters. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 16 of 65 Pages LUKE: Maybe I should put this on the record. I sit on the Central Oregon Area Commission on Transportation, and we had to prioritize and fund projects from the last legislature that approved the money. One of the projects suggested by the City of Sisters was completion of both of these lights. ODOT thought it was a little early. They'd like to get both of those lights coordinated and perhaps get some more study done. There was that discussion. As far as I know, though, there are no intergovernmental agreements with ODOT yet, but ODOT continues to work with the City of Sisters on both of these intersections and how they will be signaled. UDVARL And the intersections that are affected in this case are in the newly adopted transportation system plan as high-priority intersections. As I mentioned before, they are partially funded by developer contributions, and also moneys from the state transportation fund. LUKE: There was some concern, too, on ODOT's part that they would like to see exactly where the high school was going to go. That was just determined recently. UDVARL With that, I would leave it open for questions for David or me, and once again I urge approval of these applications based upon the findings submitted by the applicants. HOWARD PAINE: I represent the Alliance for Responsible Land Use in Deschutes County. Our address is P.O. Box 1508, Sisters, 97759. I will submit a letter for the record. It's been stated earlier what we are dealing with. I will not bother to read the provisions since it has been posted for you to read. The proposed plan amendment significantly affects transportation facilities because it allows inappropriate levels of travel inconsistent with the functional classification of intersections at Highway 20 and Locust Street, Highway 20 at Pine Street, and Highway 20 at McKinney Butte Road. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 17 of 65 Pages PAINE: The County erred by relying on exclusively on the David Evans January 2000 traffic study. Evidence in the record shows that the proposal will cause intersections to fail much sooner than normal, and they will exceed the 0.75 mobility standard designated by the Oregon Highway Plan for Sisters. DEWOLF: Have you provided a copy of this to the proponents? PAINE: No, I haven't. (Chair DeWolf asked that copies be made of the document at this time.) PAINE: The traffic study is flawed in several respects. Number one, 68% density limitation was based on the designation of Sisters for a special transportation area. That has not occurred. Sisters is not in an STA. I checked with Peter Russell of ODOT. All your mitigation and all this limitation, and dollar amounts, were all based on Sisters being in an STA, which merely changes the capacity ratio from a 0.75 to a 0.85. It doesn't do anything to help the traffic situation; it just changes the designation to allow more congestion to occur. Regarding projected traffic growth, there is a major error in the traffic study. They based it on a 2.5% traffic growth factor. As soon as we read that, it sent up a red flag, because Deschutes County in the last ten years has had a 47% growth factor. This averages out close to 5% per year. How could the traffic increase only be half that amount? LUKE: Because people car pool. PAINE: Sure they do. It just so happens that every residential dwelling generates 9.6 average daily trips. So this sent up a red flag. So I wrote a letter to ODOT in Salem, to their planning division, and I got a reply from Mr. Steven B. Wilson, who is a state planner. His letter is attached as Exhibit A. He informed us that the growth factor that should be used is 4.1%, not 2.5%. So this is a major flaw. This changes the whole situation on every intersection that is impacted. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 18 of 65 Pages PAINE: The growth study, in our estimation, did not properly consider traffic on Camp Polk Road. I moved there in 1984 and I know what's happened since then. There's been a tremendous amount of growth and residential development. I live in Indian Ford Ranch. The record shows that there are still 700 platted residential lots out there. All that traffic would be funneled into the Locust Street intersection. Those 700 residential lots can generate a potential 6,685 average daily trips; that's in the record. We raised that early on. This would generate a peak hour trip rate at the Locust Street intersection of 670 additional vehicles. DEWOLF: Per hour? PAINE: The peak hours are between 4 and 6 p.m., I believe. So it would be during that time period. You'd have to check with -- I'm not sure about that number. But I think when you figure a peak hour, it's during that period. DEWOLF: If you want to make your case, I'd get that specific information before we close the record. PAINE: I'll look that up, whether it's per hour or during that two-hour period. There's a lot of other development that we feel was not considered on the impact on local intersections. The City of Sisters is constantly approving new subdivisions, and there have been several approved east of Sisters Elementary School. Their only access is Locust Street. LUKE: Those are inside the city limits? PAINE: They are. Nevertheless, they impact this very same intersection. This 2.5% growth factor can't be right. I'm also aware that the County has a traffic counter at just about the city limits on Camp Polk Road. I contacted Gary Judd, the County traffic engineer, and he gave me the numbers from that counter. From 1985 to 2000, the growth factor averaged 5.1% per year. This is like 77%. I've attached various exhibits to my testimony. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 19 of 65 Pages PAINE: I did a calculation on the Highway 20 - Locust Street intersection based on information from David Evans' study, versus a 5.1 % growth rate that's occurring on Camp Polk Road. This is in a no -build situation, only considering north and south -bound traffic on Camp Polk and Locust Street. We determined that this intersection is going to fail about eight years sooner than they projected in their study. Another thing, if you look at the record, page 387, it's stated there; David Evans was directed to exclude one acre of the Sisters development from traffic impact. I would point out that this one acre was purchased by the owners of Metabolic Maintenance to expand their business. That one acre is inside the urban growth boundary proposal for expansion, but was excluded from the traffic study. That's another flaw. That company's access is from Pine Street. So that will generate more traffic on Pine Street. LUKE: Is there a proposal to expand their business that will also increase the number of employees, or just to increase the building size? PAINE: That was not stated in their proposal. LUKE: So there may or may not be an impact, depending on whether they increase employees. PAINE: Generally when you increase the size of a business, you're probably going to increase employees. DEWOLF: They could be adding storage space. PAINE: Or if you go to a more automated system, you could reduce employees. Nevertheless, that should have been within the assessment. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 20 of 65 Pages U.' ►13 We believe there are some provisions in the Oregon Highway Plan that were not complied with. If you look at policy 1-G, they state major improvements. They have four priorities where you determine how you're going to do these things. Priority 1 is protecting existing systems by means such as alternative modes of transportation. We don't believe that was done. Priority 2 is to improve efficiency capacity of existing highway facilities through alternative modes, such as bike lanes, sidewalks and bus shelters. That was not done. Priority 3 is adding capacity to existing systems through a major roadway improvement; and Priority 4, the very last, add new facilities. So what has been proposed here is the last one as the first priority without going to alternative modes of transportation. We would like to see a reduction in single -occupancy vehicles, because that is what is causing most of this problem. DEWOLF: How many did you drive here with? PAINS: One. How many did you drive here with? DEWOLF: I drove by myself. But I'm not making the argument. You couldn't get bill to give you a ride? PAINS: Mr. Chairman, you should set an example for all of us. Goal 3, Policy 383 of the Highway Plan, says all signals must provide for adequate vehicle storage. We have a problem at the Locust Street - Highway 20 intersection in that when a light is there, we're going to have a backup under the OHP for an urban business area, and it should be 520 feet. We're going to have a real problem with traffic backing up from that light, and it's going to block other intersections. As you well know, there are times in Sisters when traffic is backed up to the KOA and almost to Indian Ford Road. DEWOLF: But that's during the rodeo and quilt show. That's not on a normal Tuesday. It's because of special events. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 21 of 65 Pages PAINE: I've seen it backed up on a Friday afternoon before hunting season out toward Black Butte Ranch. That would apply to this. In conclusion, if the traffic study had used the correct traffic growth factors, and had included all background traffic, the proposed plan amendment would, even with recommended mitigation, degrade the affected intersections below acceptable levels. A one-way couplet through Sisters would be a partial solution, but the City lists that as a low priority, to be constructed sometime after 2010. In fact, they probably wouldn't even want one at all. I can recall when I first moved there they had been talking about a couplet in Sisters going back to the 1970's, before the original comp plan was adopted in 1979. It comes up and it gets vetoed every time. That's where we're at. We believe the County's attempt to satisfy a Goal 9 requirement has in turn violated Goal 12. As addressed above, the proposed plan amendment and rezoning to industrial usage will generate levels of travel that are inconsistent with the functional classification of transportation facilities in violation of the provisions that you had up on the board. I request that the record remain open for seven days so we can review what's been submitted and allow us to submit additional information. LUKE: It's going to be a little tough to do that if we are going to get done by the 23rd unless there is a waiver of time. If the record is open for seven days, then that means another seven days for rebuttal. By then we'll be close to the 14th. It makes it really tough for counsel to get everything written up. PAINS: I believe there is a provision in state law that allows that. CRAGHEAD: This is allowed for the initial first hearing. I don't think you have the same provisions for a remand hearing. It says under ORS 197.763.6, it talks about the initial evidentiary hearing, you can ask for a continuance; it doesn't say on remand. LUKE: If the record is left open until Friday at 5:00 p.m., if the Chair feels he can do that, would that give you enough time to get your additional testimony in? Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 22 of 65 Pages PAINE: We'd like an opportunity to review what is submitted by the applicants. Is the County willing to copy everything that they've submitted and provide us with copies today? DEWOLF: Yes. LUKE: We'll have one before you leave. The initial report by staff has to be done by the 23`d. The applicant is the one who has to waive it. CRAGHEAD: I need to verify that. You can hear further testimony while I go get them, if you want. PAINS: Our request stands, unless you find you cannot comply with that and that it is not necessary under state law, for the seven days. LUKE: You might be the one who has to waive the 23`d. That's the point. Our timeline is the 23`d. Laurie will look to find out who is supposed to waive the time limit. If it's you who has to waive it and you choose not to, that puts us in a bind. We've got to be done by the 23`d. We'll know before the hearing is over. PAINE: I think we might have a little problem trying to meet that requirement by Friday. WILLIAM BOYER: I'm chairman of the Alliance for Responsible Land use in Deschutes County, P.O. Box 1508, Sisters. My material really just focuses on the disparity between the David Evans material and ODOT. Actually, a lot of that has been covered here in recent testimony by Mr. Paine. I would be glad to just submit this to you, because it basically involves just the need for analysis of the correctness of these allegations. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 23 of 65 Pages UDVARI: First, regarding the 90 -day time limit that we're operating under. It is my understanding that this is under the mandamus rule, and I believe that is our time limit to waive. But I'm not sure. If so, we prefer not to waive it and we would also prefer not to keep the record open. The written evidence that we've submitted to you has been in the record for over a week, and there has been plenty of time for folks to review it if necessary. DEWOLF: And you don't want an opportunity to rebut what has been submitted by ARLU DeCo? UDVARI: We could provide a letter to you within several days to rebut that, but we have no interest in submitting any new evidence. DEWOLF: If we closed the record today, you wouldn't be allowed to submit a rebuttal to that. So the only way we can allow you to rebut anything in here is to leave the record open. UDVARL My understanding is that the record may be left open for the submission of additional information regarding the findings, the preparation of the findings, and we would be happy with that. Otherwise, we would agree to leave the record open until Friday. I think that day would work for us for submittal by both parties. DEWOLF: Once that closes, we would need to leave the record open beyond that for you to have time to rebut anything that is put in. You get the final say here. If we leave it open until Friday to give them a chance to review material and submit anything by 5:00 p.m. Friday, and then gave you until perhaps 5:00 p.m. on Wednesday, would that be enough time. UDVARI: That would be fine. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 24 of 65 Pages DEWOLF: We know this is tight on everybody, but we're in a tight time situation here. WHATA I _. Definitely. Generally, since we haven't submitted new information today, I would request that it not be left open and that we simply have seven days to submit final legal argument, which would be fairly standard. DEWOLF: When did we receive this? LUKE: It is date stamped March 20. UDVARL So it has been available for seven days. I'll address some of the substantive points, and then David will address a couple. Regarding the STA, special transportation area, designation, upon which the 68% density limitation and the funding of the intersection improvements were based, that designation is planned in the Sisters TSP as a high priority. It is to be constructed within five years of the date of adoption of that plan, which was June 2001. There is case law indicating that such improvements that are set forth in a TSP and are therefore not speculative but likely to occur can be relied upon for purposes of determining that an amendment does not significantly effect the transportation facility. There is case law to support this, and it is in our submittal. Therefore, all of the mitigation measures are based upon the STA designation, which is reasonably likely to occur, and therefore the Board may rely upon that. . Regarding the policies of the Oregon Highway Plan that the opponent claim -- DEWOLF: What happens if they don't? If they don't get this done within the five years? What are the consequences for the City of Sisters for not complying with that five-year time frame for the establishment of an STA? Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 25 of 65 Pages UDVARL I don't know that there are necessarily consequences. What we've set out in our findings is that the time at which the intersections would exceed .75, which would be the VC ratio if the STA designation did not occur. If it does occur, it is .85. And they do comply with the .85 throughout the twenty-year planning period. The date upon which they would start to exceed .75 is well beyond the five-year period. So that gives the City a cushion of approximately seven to ten years to go forth with that designation. DEWOLF: For a whole host of reasons, the City of Sisters has not been able -- I mean, the TSP took a lot longer, the comp plan was supposed to be done ten years ago, and it is supposed to be done now, this year. It looks reasonably like that will happen. They've not been the fastest or the most -- things that have been anticipated for a particular time frame haven't come through during that particular time frame. I guess what I would like to have you address, that Mr. Paine raised, is maybe highlight for us when you are rebutting this, you position on how these issues are addressed. UDVARI: I think one thing I can do to respond to your concern is to point you to exhibit H to our submittal. That is a resolution adopted by the City of Sisters on March 14; what that resolution does is confirm their intent to go forward with the STA designation as set forth in their plan, and to have it extend through the necessary intersections. DEWOLF: And I absolutely believe their intentions have always been wonderful, on the comp plan and transportation system plan and what have you. The road to someplace is always paved with good intentions. LUKE: Some of these things are out of their hands. Since a state highway goes through, some of it deals with the Department of Transportation and how they priority things, and how they are doing with money. There are some pretty good partnerships working there now, I know that, between the Department of Transportation and COACT and the City. I hope they can get that stuff done. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 26 of 65 Pages 10:91 MINI- I And your task, in the context of approving these applications, is to look to see if there are improvements or future designations that would render these applications consistent with the performance standards within the relevant time period. As I said, the case law that I cited, ODOT v. Klamath Falls and Craig v. City of Woodburn, specifically state that if you find that there are improvements or designations that are specifically contemplated in a transportation system plan, or something like a development agreement, that makes them not speculative and likely to occur, then you can and should rely on those to find consistency with the TPR. I think that is the best way to answer it, although he exact timing of everything is likely to have a time frame but not definite as to a particular year. You need to look at the time frame based on the adopted plan. 11�01 .114 Staff, I'm going to give my copy of the Ball Janik written testimony to Howard, and I need another copy. Relevant to the STA issue, it was mentioned that the opponents did not believe that the planned intersections or signalization of the intersections would comply with Oregon Highway Department spacing standards. As noted in the transportation system plan, spacing standards do change with an STA, which is part of the reason you do designate a highway running through a main core of the city, to recognize the existing intersections and to allow those to continue to exist and function. Therefore, the standards would be reduced to the distance between the intersections as they currently are functioning. NATOWSKI: I'm the traffic engineer who prepared the traffic study for this project. Also, I was the traffic engineer who worked on the City of Sisters TSP. As Mr. Paine was providing his testimony, I was making some notes. I'd like to address as many of those as I can today. We may need to address some in writing if the record remains open. In his opening remarks Mr. Paine referred to our January 2000 update of the traffic study. A lot of that work was superseded when the property owners agreed to a 68% maximum development scenario. So I think some of the comments did not refer to the latest traffic study that is in the record. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 27 of 65 Pages NATOWSKI: He mentioned the fact that Highway 20 in Sisters is not designated as a special transportation area yet. That is absolutely correct. I would like to reemphasize Ms. Udvari's comments that the City has signed a resolution in March that they intend to pursue designation as an STA. He mentioned a lot about the traffic growth, that we had used 2.5% and said that Deschutes County is growing at 5% per year. We didn't have the benefit of the TSP done at the time of all of our traffic work, which took place two or three years ago. But I would like to refer you to two pages in the TSP, pages 5- 2 and 5-3. I'd like to read two short paragraphs. LUKE: Is the TSP part of the record? CRAGHEAD: Yes, I think so. As an adopted plan, you can also take judicial notice of it as well. For the record, in the applicant's submittal she did request that you take judicial notice of it. NATOWSKI: I'd like to read two short paragraphs from the TSP into the record. This is regarding growth. This is an adopted TSP, and DLCD and ODOT had a chance to review this and they were in agreement with everything in here. Deschutes County is expected to experience sizable population gains over the next twenty years. Population was forecast by the State of Oregon Office of Economic Analysis as follows. "Although the OEA forecast suggests that Deschutes County is expected to grow more rapidly than the State of Oregon average, the difference between the County growth rate and the state growth rate is expected to decline over time." The estimated average population growth rate for Deschutes County between 1980 and 1999 was 2.89%, and in the 1999 to 2020 period the estimated population growth rate for Deschutes County is expected to slow, averaging 2.4% annually. The State of Oregon's average annual population growth rate is expected to remain constant at 1.2%. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 28 of 65 Pages NATOWSKI: "The City of Sisters is expected to experience population gains for the next twenty years, increasing from a population of 1,100 in the year 2000 to a projected population of 1,710 by the year 2020. This represents a 2.23% annual increase each year. This is the OEA projected state rate of growth. This planning effort does not change the growth assumptions for the City of Sisters." So the population growth rate is closer to 2.5% than the 5%. Traffic typically grows a little bit faster than population. In table 5-2, on page 5-3 of the TSP, we showed that historic growth rate on Highway 20 inside the Sisters city limits was 3.6%. So I wouldn't say that 2.5% was really that far out of line, and it shouldn't have been 5% like Mr. Paine has testified. Mr. Paine testified that traffic on Camp Polk Road will likely increase by 700 peak hour trips, due to these 700 home sites north of the City of Sisters that could be developed. I'd like to refer you to page 42 of the Hearings Officer's decision for the original Barclay Meadows project, file number PA -99-4 and ZC-99-1, where Mr. Paine provided the same testimony about the 700 lots. The Hearings Officer had made an estimate of how much traffic is on Locust Street in Sisters. She had referenced 1,600 existing dwellings north of the city that access Camp Polk Road and Locust Street, and estimated that the road is serving over 15,000 trips per day today; and that you would see an increase of 700 trips in the peak hour. That estimate by the Hearings Officer -- I know what she used to provide that estimate -- a single family home generates 9.5 trips per day, and that's a standard that we always use. But those trips just aren't being realized on Locust Street today. I admit I'm not that familiar with the County road system north of the City, but those homes must be accessing the highway somewhere else besides Camp Polk Road. That's because there are only about 5,900 trips per day on Locust Street at the intersection of Highway 20, and that drops off pretty quickly as you move north. At the north city limits near Barclay Drive, it's only about 3,200 trips per day. Those numbers are documented in the TSP. They are not all going to be using Camp Polk Road. They are accessing the highway from some other way, or those homes just aren't generating the 9.5 trips per day. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 29 of 65 Pages NATOWSKI: In addition, I'd like to point out that we did account for the growth rate in the TSP. We estimated that in the next twenty years there would be an additional 300 trips on Locust Street in the peak hour than there are today. So we have accounted for some of that growth, just not the full 700. I just don't think that 700 will be realized. Mr. Paine referred to historic traffic counts that were conducted by the County road department showing that the growth rate is 5.1% per year at the north city limits. In order to address that, I would need to have some time to put something into the record. I'll speak with the County road department myself. My gut feeling is that even if the growth rate on Camp Polk Road north of the city is 5%, you're not seeing as much new development in the City of Sisters. I think if you averaged in what the City of Sisters is growing at, that growth rate would be dampened or dropped a little bit. For example, if along Locust Street in the City of Sisters the growth rate were 1% per year, averaging that in with the 5% just outside the city limits, you'd be closer to a 3% growth rate on the total traffic. Mr. Paine also testified that there is a lot of new development east of Locust Street, and all of that new development is going to be accessing Locust Street to get to Highway 20. I'd like to refer you to figure 7-5 in the TSP, which shows there are two new street connections east of Locust that connect in with the highway. Those are projects number 7 and 12 on figure 7-5; they are referred to as the Timber Creek subdivision streets and the Jefferson Avenue extensions. So, some of that new development will be served by two new streets and not by Locust Street. Mr. Paine also testified that David Evans and Associates excluded one acre of the subject property from its study. I don't know what that acre is that was excluded. I know that some of the property in the Barclay Meadows property is inside the runway protection zone, and those acres were reduced from what could be developed. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 30 of 65 Pages NATOWSKI: I'm not aware of this one acre that he said we subtracted, that was used for Metobolic Maintenance development. Steve Swisher from the school district told me that this property is actually only one-half acre and not an acre. I'd also like to point out that if that is new development that came on in the last two years, that was after our traffic work was done, and we had no way of knowing that was coming on line afterwards. I just don't think it is relevant to the case at hand. In order to address Mr. Paine's comment about the storage requirements for Locust Street -- he referred to a policy in the Oregon Highway Plan -- I can't address that today. I'll need to go back and review some of the information we have. WHAVEIRIM Again, I guess I would repeat my request that we not leave the record open for the submission of any new evidence, but that we allow the applicant the traditional seven days to simply submit final legal arguments, since our new evidence had been submitted over a week ago. DEWOLF: If we elect to leave the record open for a short period of time, can that be the subject of an appeal by the proponents? If we give a couple of days for Mr. Paine to review this and get comments in. CRAGHEAD: Not as long as you give the applicants time to rebut. DEWOLF: Are we required to give seven days to rebut? CRAGHEAD: No. DEWOLF: Then, my intention, if this is okay with you, is to give Mr. Paine until this Friday, March 29 at 3:00 p.m. -- this has been in here for seven days, and it's been open to anyone to see and review. We're going to beyond what we really need to do here to give you this opportunity. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 31 of 65 Pages DEWOLF: You're going to have to burn the midnight oil to get anything in. So, if this is in by 3:00 p.m. Friday, that still gives the applicant the opportunity to pick it up during business hours and give them the weekend as well as time next week. My preference would be for you, then, to have anything in by the end of the day -- 5:00 p.m. -- Wednesday. The reason for that is that can then be included in our packets so that we can make a decision on April 10. This would then give 13 days to make sure we can finalize however this falls out. Does that work for you? So any additional evidence from anyone that relates specifically to this is due by 3:00 p.m. this Friday, March 29, in our Community Development Department. Anything that is not submitted by then will not be considered. And then by Wednesday, April 3, at 5:00 p.m., any rebuttal by the proponents is due. Then we will make our decision at our 10:00 a.m. meeting on Wednesday, April 10. CRAGHEAD: Just a point of clarification regarding this remand hearing, these are for parties only. UDVARI: I would just like to close by reminding the Board that in your prior decision you did make findings that these applications were consistent with the performance standards applicable, that you are addressing today. Those determinations were not overturned by LUBA, and we would hope that you would continue to uphold that earlier finding. The Board took a five-minute break at this time. 7. Before the Board was Consideration of Approval of a Fee Waiver Request from Central Oregon Parks & Recreation District regarding the Submittal of a Site Plan Application Katie Hammer of Central Oregon Park and Recreation District gave a brief explanation of the request, which relates to adding lighting to a new BMX track. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 32 of 65 Pages Commissioner Luke asked if there is to be lighting around the existing park, had she talked with the neighbors who might be affected by it. He said that if letters are received, this could end up in a public hearing process, and he is concerned about the staff time needed for this. Ms. Hammer said she couldn't answer that question, and that there is nothing in the file indicating this had been considered. She said there was a grant for the track, but that the lighting was donated. Chair DeWolf indicated he would not support waiving these fees. He said there have been five or six fee waivers done, but his biggest concern is that the park district has had the ability to collect SDC's but elected not to do so. He stated that to have all the citizens of the county now pay for this is unfair. He further said that the district had the funds and its discretion, and gave it away; so he has a hard time supporting this request. Commissioner Luke stated that it would be nice to know if the neighbors had been contacted and if they support this. He said that if it is an administrative decision, that's one thing; but if public testimony has to be taken, that would create additional problems. Ms. Hammer indicated she would do some investigation and get back to him. 8. Before the Board was Consideration of a Decision Whether to Hear an Appeal of the Hearings Officer's Decision to Deny a Conditional Use Permit to Establish a Non-farm Dwelling on a 20 Acre Parcel in the EFU- TRB Subzone (Applicants: Eugene & Barbara Prete) Chris Schmoyer gave a brief overview of the issue, and referred to an oversized map showing the property and the area. SCHMOYER: If the Board does decide to hear this, a time and date needs to be set, and it needs to be decided if this would be heard on the record or de novo. The applicants have requested a de novo hearing. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 33 of 65 Pages LUKE: This is tough. Protecting farmland is something our land use laws are supposed to do. I've dealt with land use issues for a long time, starting in 1993 as an elected official. These are the types of properties that I think the laws were designed to protect. The Hearings Officer's determination that these are high value soils, and there being nothing on the record from soils engineers or anyone else to offset that, leads me to agree with the Hearings Officer's decision. I would vote not to hear this. DEWOLF: And I would agree. I think we're in the office to uphold state law, and I think that it is really clear that there is nothing to indicate otherwise that I can see. LUKE: Laurie, do we need a motion or is this enough? CRAGHEAD: You need a motion to deny the appeal, which by our code automatically upholds the Hearings Officer's decision. LUKE: I would move that we deny the petition to hear the appeal. DEWOLF: I would second that. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. LUKE: For the record, I asked Laurie earlier; and the applicant still has the option to resubmit and provide soils engineer's reports and those kinds of things to the Hearings Officer. SCHMOYER: They could go through the process again, yes. 10. Before the Board was a Public Hearing on the Formation of the Gift Road Local Improvement District Gary Judd gave an overview of the LID remonstrance hearing. He said if more than 50% of those in the proposed district object to the project, the LID would be abandoned. If not, the Board would have a choice of ordering it on to contract. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 34 of 65 Pages He stated that in this proposal, 63% of the mail poll said yes, and seven objections were received by mail. 24% voted no, and 13% didn't vote. There are a total of 108 lots. Chair De Wolf then opened the public hearing. DOUG SANDERS: I live on Gift Road, and have for about 25 years. My complaint is that there are heavy trucks and equipment at the thoroughfare, and I was told by public works that they are only going to go two inches of asphalt on a firm base. I think three to four inches is better, and that two inches won't hold up with the traffic. Also, who is going to maintain that? LUKE: We are. Once an LID is in place and the road is built to county standards, the county accepts that road. SANDERS: The roads around here are getting in really bad shape, and they aren't maintaining them. DEWOLF: The county roads are maintained. I can't speak for the state roads. SANDERS: So you people are going to be liable for the upkeep of that? How often will that be maintained? DEWOLF: They are put on a schedule, and either Gary (Judd) or Tom (Blust) can provide you with this. All of our roads are put on a schedule where we do overlays, chip seal and what have you. SANDERS: Two inches of asphalt isn't going to do it. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 35 of 65 Pages GARY JUDD: Two inches is our standard for local roads. We've been using this for numerous years, and there are a lot of roads out there with that. The history of that standard shows it has held up really well. We have roads out there that are twenty years old that are still good. LUKE: A lot of how a road holds up is not necessarily the asphalt; it's what kind of base you have underneath. I've driven out there a few times; that is pretty much all rock. SANDERS: You ought to see the traffic there, though. LUKE: You've had several roads in that area that formed LID's that are paved now. And I'm sure that is bringing in additional traffic. Plus, the land for a while used to be some of the most inexpensive lots you could buy, but not any more. I'm sure more people are building out there now. SANDERS: There are some of us that can't afford it. I know I can't at the present time, because I'm on a fixed income. DEWOLF: I truly sympathize with your situation. The difficulty that we all face is that in a democracy, the majority rules. And, for instance, there were people who were opposed to building the fairgrounds that are paying $25 per year extra now on their taxes. The majority does rule, and actually the county is more restrictive than a lot of the cities are. The City of Bend only requires a 50% plus one for approval; and the County requires 60%. SANDERS: I still think two inches is not enough. DEWOLF: I was just talking about the financial impact. I do respect your opinion, but the other thing is I also respect Gary's opinion, and I'm not an expert in any of this. I also know that his rear -end is on the line. We will be maintaining this road, so if it falls apart, we'll expect to hear from you and we'll send Gary out there to fix it. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 36 of 65 Pages SANDERS: Regarding the state markers, are those the property owners' responsibility? JUDD: He's referring to some lots that we put out in the project. Those are marking found property corners so they would be basically the right of way for the road. That is the existing right of way. DEWOLF: The right of way is not necessarily the width of the finished road. JUDD: There's 60 feet of right of way, and the finished road surface would be 24 feet. LUKE: That's 60% of the property owners, not the registered voters, correct? JUDD: Correct. And the cost of $7,265 can be spread out over ten years. Being no further testimony offered, Chair De Wolf closed the public hearing. LUKE: I move approval of the Gift Road LID. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 11. Before the Board was a Public Hearing on the Formation of the Mountainview Road Local Improvement District Chair Tom De Wolf opened the public hearing. Being no testimony offered, he closed the public hearing. JUDD: We got two objections, and 75% votes in favor. LUKE: I move approval of the Mountainview LID. DEWOLF: Second. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 37 of 65 Pages VOTE: LUKE: Yes. DEWOLF: Chair votes yes. Commissioner Luke reminded the audience that requests for local improvement districts come from the residents, and not the County. Gary Judd informed the Commissioners that there are four resolutions that need to be signed regarding the formation of the two local improvement districts. DEWOLF: I move approval of Resolution 2002-024. LUKE: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. DEWOLF: I move approval of Resolution 2002-025. LUKE: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. DEWOLF: I move approval of Resolution 2002-026. LUKE: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. DEWOLF: I move approval of Resolution 2002-027. LUKE: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 9. Before the Board was a Public Hearing and Consideration of the First Reading of Ordinance No. 2002-001 and Ordinance No. 2002-002, Revisions to the Comprehensive Plan and Zoning Ordinance for the Rural Service Centers of Alfalfa, Brothers, Hampton and Millican (to Comply with State Rule regarding Unincorporated Communities). Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 38 of 65 Pages CATHERINE MORROW: I'm with the County Planning Department. We're here this morning to consider a legislative amendment and two ordinances, 2002-001, which deals with the comprehensive plan and plan maps, and 2002-002, which deals with zoning maps and zoning text for four unincorporated communities in Deschutes County. They are Alfalfa, Brothers, Hampton and Millican. This work is part of our ongoing period review work where we're looking at all the unincorporated communities in the County. These communities all qualify under a state administrative rule as rural communities, and we have amendment the zoning for these communities to comply with the state rule. We've also amended the boundaries of these communities to comply with the state rule. Staff met with all of the property owners in establishing the community boundaries and zoning regulations; we held a public hearing on February 7, 2002, and at that time there was some concern from some community members from Alfalfa. To address those concerns, we had a community meeting in Alfalfa on February 28. After that community meeting we had a continuation of the public hearing on March 14. At that continuation, the Planning Commission listened to testimony and voted to forward the proposal that is before you today. I've handed out a table that has been added to the staff report. I noticed an error this morning on the first column for Brothers, and I will correct that. The rest of them are correct. We haven't received any written testimony on this. We did provide additional notice to the community of Alfalfa, based on the testimony that we heard at the Planning Commission meeting of March 14. LUKE: How much additional? MORROW: Almost out to two miles from the boundary of the unincorporated community. I'm sure you're going to hear testimony today from the Alfalfa community about the zoning. I would emphasize to the Commissioners and hopefully to the people who are providing testimony that what will be most useful is if they testify about where they would draw the boundary, if they would like to see the zoning something other than the mixed used zone that we have proposed for the entire community. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 39 of 65 Pages MORROW: I'll point out here some exhibits that I have. (At this time she referred to oversized maps and photos. These exhibits showed the current zoning of the community of Alfalfa, and the current comprehensive plan designation; she pointed out specific properties within the community.) You can see that the boundary didn't follow property lines at that time. One of the requirements of the administrative rule is that the zoning designation in the community boundaries have to be parcel -specific, and be able to be identified on a map that shows specific parcels. The zoning that is proposed for all of these communities, rather than making a distinction between residential and commercial land, we've come up with a zone that combines the residential and commercial uses. The minimum lot size in all the communities except for Alfalfa as proposed by the Planning Commission is two and one-half acres. In Alfalfa, the minimum lot size is proposed for one acre. All of these communities will be served by on-site septic systems. LUKE: Do you have in your public testimony about the one -acre recommendation? MORROW: The one -acre recommendation came out of the continuation of the Planning Commission's public hearing in Alfalfa. That was the request of the property owners in the Alfalfa boundary. At the request of Commissioner Luke, I made contact this morning with Ron Nelson of Central Oregon Irrigation District, and he had no strong opinion about the zoning in this community. They have no intention or current plan to sell their property, and he had no objection to the proposal. But, again, he had no strong opinion one way or the other. LUKE: He wouldn't have a problem if you took that piece of property out of the one - acre zoning? MORROW: I'm not going to speak for him. I'll just say he had no strong opinion, and didn't object to the current proposal. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 40 of 65 Pages LUKE: When you met with me, you talked about a couple of pieces. I asked why this was such a large piece, and there wasn't a lot of discussion on this, but I asked if COI requested it. You said no, they didn't request it. The other large piece you were talking about was the water users, which has many owners. And they didn't request to go to one acre. MORROW: I'll let you hear from them. I think the most useful testimony of course would be whether we want to have several zones within the community -- residential, commercial, public or whatever -- and where those boundaries should be drawn; and, also, testimony about the uses that are listed in the zone. There are uses that are permitted outright, there are uses required with site plan approval, and there are also conditional uses. So if people have comments about those, I think that would be most helpful. DEWOLF: These boundaries can change in the future, correct? MORROW: Yes. If they are adopted by the Board in whatever form, then it would require a comprehensive plan and zone change to change them, which is an expensive, drawn-out proposition. DEWOLF: My concern with anything like this is that I can't make a decision about property COI owns, based on their belief right now that they have no plans to do anything with it. So why wouldn't we just leave the COI property out of the boundary and then, if at some point they were looking at wanting to be included, perhaps for a sale or what have you, why not just leave them out and have property that we anticipate would, in fact, be used in a mixed use zone the way it is intended. MORROW: The boundary of Alfalfa is actually the only community where the boundary did not significantly change. The reason we wouldn't exclude it is because all of the land that is currently within the boundary is an exception to Goals 3 and 4. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 41 of 65 Pages MORROW: So, if we were to leave it out of the boundary, we might have to rezone it as EFU, which would be a significant downzoning of the property. Currently it is zoned RSR -5, a five -acre minimum lot size. We could decrease the boundary. The administrative rule that we are operating under says that the boundary should be based on the historical boundary of the community, and this has always been included. That would be my argument for retaining it in the boundary. LUKE: I would like to see addressed is how far out we'd go on notification. There was some question about how far we went out this last time, and we extended t hat. I don't have a problem with going out further, but I'd like to hear from the community. We clearly can't go out ten or fifteen miles. But, as we did with the towers, the further up they go the further out you go; but not only that, you have to notify a certain number of people. I'd like to have some comment on that. MORROW: I would also point out that at the Planning Commission meeting, this notice issue was raised. The Planning Commission individually addressed the concern about notice and made a recommendation that we not increase the notice area because we had had so many meetings regarding this. However, staff in consultation with the Board decided to increase the notice area. LUKE: What I would be concerned about is if this is done and there is an application to do something in this zone. That's what I'm talking about. Where does the notification go out regarding an application to do something in a zone, so that an adequate number of people are notified? MORROW: I would also point out that the way the zoning code is drafted now, the only time notification would be done, whatever the distances, would be based on our procedures ordinance for land use actions. I'm not certain what it is, but I could find out for you. The only time notice would be given is if it is subject to site plan review or if it was a conditional use. A number of the users listed in the zone the way it is now proposed are outright, and would not require notice. LUKE: Are we getting written comments or anything from the other outlying areas? Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 42 of 65 Pages MORROW: No, we haven't received any written comments. DEWOLF: Are we under any time constraints on this? MORROW: No. DEWOLF: Do we have to adopt them together? MORROW: You can adopt them separately. The only time constraint that we are under is that this task under our periodic review is supposed to be completed by the end of the fiscal year, June 30, 2002. Chair Tom De Wolf then opened the public hearing at 12:15 p.m. He asked that people please limit themselves to a few minutes if possible since the meeting has been so long already. MIKE BLAKE: I have a question about the two-mile limit on notifications. DEWOLF: We traditionally follow state law. BLAKE: Could someone put a radio tower on it? CRAGHEAD: Depending on the criteria, this could even go on EFU land, unless we can find a valid reason for excluding it under the Federal act. MORROW: It is listed as a conditional use. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 43 of 65 Pages DEWOLF: It's not an outright use anywhere. We require a public process. Because cell towers are so very controversial, we go way out of our way for notification and the hearings process. BLAKE: You said cell towers, so somebody has said something. That two miles is not nearly enough. DEWOLF: It's a completely different issue. LUKE: We changed our ordinance on the higher up you go, the further out the notification. But, there is also a minimum number of people to be notified within that circle. So, if you say you have a two-mile circle, if you don't hit that minimum number of people, the circle expands until the minimum number of people are notified. It would be very difficult to put a cell tower in Alfalfa, because they are supposed to be screened as much as possible by natural vegetation. You don't have a lot of trees around the store. DEWOLF: In addition to that, everything we put in place and the hoops that folks have to jump through should be considered. We approved a tower in the La Pine area, but denied one in Sunriver. That is something we are very sensitive to, but it is a whole different process than what this is. What we are doing today in no way changes in fact what is allowed out there. They could make application for that today. So this doesn't affect that one way or the other. BLAKE: I also heard that there have been some people calling about the land owned by COI. STEVE DOUGHERTY: My question was the two-mile radius, which I feel is not adequate enough. The reason is because everyone is so spread out, but they do come to the store. It's not like the City of Bend where you could do something like that. We're talking about people who are spread pretty far out. Coming to the store in that area, we use it. If there is something that is going to be built there or rezoned for certain ventures, I think it should be spread out more so that people who do use the area know about it and can come to a meeting. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 44 of 65 Pages LUKE: Are you talking about if there is an application to build something in the zone? DOUGHERTY: Or the change in zoning that we're speaking about today. I don't know how many people you'd hit in two miles. (Conversations off the microphone) DEWOLF: Andy (Andrews) says 147 people. We can all accept that. MORROW: I'd like to point out that it's not precisely a two-mile radius. I have a map of where we did the notice, and it's more of a square. DEWOLF: In talking with Andy on the phone, this is one of the big issues, this notification. So the question that I have is an explanation perhaps of how we do a notification if someone came in and applied to do something in here. Can we go against state law and go further? CRAGHEAD: Yes, you can go further. Minimums are in our code. This notification went a lot farther out than the minimum indicates. MORROW: Those are minimum standards. DEWOLF: Outright uses, we don't notify anyone anyway. But for a conditional use or some other thing, do we have the authority to establish specifically to Alfalfa that says the boundaries are ... and name the actual roads? MORROW: We haven't done that anywhere else in our code. It's typically addressed in the procedures ordinance, but I don't think it would be a problem. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 45 of 65 Pages CRAGHEAD: I don't think it would be a problem, but again you would be treating one community differently than others. The other issue is you are making more people parties to a quasi-judicial procedure, and they may not then be able to be a party on appeal from LUBA to the Court of Appeals. They couldn't unless they could prove actual injury. They couldn't go past LUBA. LUKE: Do you have any comment on the change of the zoning? DOUGHERTY: Personally I like Alfalfa the way it is, and of course I don't want to see anything change. That's why I moved there and plan to retire there. I love the people and I love the area. I'm afraid that if something, if these parcels get put up for rezoning, God knows what will go in there commercial -wise. It's a pleasure to go to the store and pick up something and chat. That's why I feel that the more people in the area that know about this, then we have more of a voice. Let them have the input, not just people who live next door to it. It's share by everyone, and that's why we have a community hall. I, 114 I think that's one of the reasons the Planning Commission made the trip out there and had their hearing out there, as well as the staff hearing. I believe there were about 13 people present at that. DOUGHERTY: I think that is also because of the two-mile radius. LUKE: No, that was a lot less notice. I believe staff was trying to consider the residents of Alfalfa by having the meetings out there. We will try to get more people involved, because it is a very active community. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 46 of 65 Pages DAVE MAJORS: I was at the February 28 meeting. At the risk of sounding really stupid, we went through what was going on and I left the meeting and never realized that we were actually rezoning property. That word was totally left out of the scenario, and nothing was brought up about the change in zoning. The only thing that was brought up in relation to that was something about breaking a lot down into 6,000 square foot pieces with fifty feet of frontage. We were told that this was in existence now, and the County wanted to take that up to two and one-half acres. It may even show in the record that I even suggested that we make it only an acre. But I didn't realize during the whole thing that we were rezoning property. No one explained that. They just said we were changing language. That's where I'm kind of upset, and we actually touch the property except for a canal. To my knowledge, I just don't think that they accurately portrayed what they are intending to do. DEWOLF: My understanding of this is the ultimate potential is that if you've got approximately 21 acres here, there's a potential for 21 one -acre lots in mixed use, which potentially could mean 21 commercial uses. Is that right? MORROW: That is in fact true, but only if they can get septic approval for all those lots. LUKE: The size of a business on a one -acre lot is going to be really restricted by a drainfield. You're not going to have a Wendy's there because of the amount of drainfield they would require, and the septic and water systems would require for public use. An acre lot to me is bad enough for a house, let alone a business. I don't know how you'd do that. I'm not asking you; I'm just saying that by going that small of a lot size, I see it as a problem. MORROW: The initial proposal was for two and one-half acre minimum. The existing zoning talks about being able to go down to that size lot, if you can be served by sewer and water. In this case, and in these other communities' cases, the administrative rule that we are trying to comply with here doesn't allow you to put sewers in places where there aren't existing sewers. So, we're removing that provision from the code because of the state law. Minutes of Board of Commissioners' Meeting Wednesday, March L /, Lvul Page 47 of 65 Pages MORROW: So, even though theoretically you could have gone down to 6,000 square feet, you would have to have put a sewer system in the community. That was unlikely to happen. MAJORS: My point is that this was the only thing that was talked about at the meeting, not the fact that it actually can only be broken into five -acre parcels. In other words, we went from 6,000 square feet to two and one-half acres, and I said I didn't think that's fair. So I asked about an acre. I'm the one who brought it up. No one told me that we weren't really at 6,000 square feet, we're at five acres; and that we are rezoning twenty -some acres of property. That was never brought up. Now maybe I should have read more. I just don't think it was adequately portrayed to the community of Alfalfa what was really going on. DEWOLF: So, you've got a picture of it now. What do you think about ... MAJORS: I think it should be left as it is, but I know you have to do what the state says regarding boundaries. DEWOLF: The thing I want to make clear is that we want to know what you all want. That's what we want to know. MAJORS: That would be my option. Leave it as it is, at five acres or whatever it is now. DEWOLF: So your choice would be to leave it as it is. Again, ten years from now if everyone in Alfalfa says this isn't working for us anymore, it can be revisited and changed. ANDY ANDREWS: Just a couple of things to add here. Number one, my problem when I talked with you and to the rest of the County Commissioners, it's not what is being done now. This is not a direct attack on the people that own the property now. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 48 of 65 Pages ANDREWS: But the problem is, and I read to Commissioner Mike Daly, the subject that was in this notice. He had no clue as to what it really meant, and I've read it to ten other people and they said they wouldn't go to the meeting, as they had no idea what is being talked about. It says, and this is the notice that went out to 147 people. I don't object to the way notices go out; I do object to them not saying in that notice what they intend to do is to rezone. That's the problem. My suggestion, and I made this the last week to them, if you're going to send out a notice, it's like sending out a notice for an obituary or a wedding. You generally tell the people who is getting married or no one is going to come to the wedding. I think that is what has happened here. Because everyone I've talked to said they had no idea what that was all about. If they had known it was talking about rezoning, they would have been at the meeting. I think that is the situation. If they want to run it two miles or three miles out or whatever, at least be honest enough -- and I'm not saying dishonest -- DEWOLF: I want to be really clear about this. This isn't a matter of honesty or dishonesty. It is an accurate description of what is being done. However, it is not written so that lay people can understand it. I think that is your point. ANDREWS: Exactly. There would have been more people at the meetings if that had been done. DEWOLF: My impression is that we have the authority to put out an explanatory statement with the notice that would make it clearer. CRAGHEAD: We can, but we just have to make sure that the proper code provisions that are being considered are clear. DEWOLF: My suggestion would be that we have both. We obviously have to comply with the law, but I think in all cases -- and that was one of my biggest complaints when I first got here, that our own agendas were hard to understand because of the wording -- that when we're putting out these things, if we can have a statement or explanation that is easy for all of us to understand. It's accurate, but it may be hard to understand. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 49 of 65 Pages ANDREWS: It's not a question of quantity; it's a question of quality. CRAGIAEAD: It's also a question of generally the more you put in, the more likely that someone could appeal on the notice issue, in terms of if you don't say it exactly right. But generally being brief allows the least amount to be able to appeal to LUBA. DEWOLF: I don't mind people being able to appeal. To me, it's like a voters' pamphlet. The specific item is one thing; it's the explanatory statement that helps people to understand what the impact of the ballot title is. I think it is doing us a good service to our public. ANDREWS: There are several things here. The first meeting there were six people notified, then thirteen, and at that meeting I said they needed to let more people know what is going on. Then they notified 147 people. One thing, on all of the other zonings or rezonings that you're going to do in these rural service centers, this happens to be the only one you want to break up into one -acre parcels. I find that very interesting. A problem I do have, though, and I think a person on the Planning Commission was put into a very awkward and sensitive position -- her name is Tammy Saylor -- she works for COI. I find it very interesting that two acres across the street that belong to someone who is on the board of COI is in contention here, and also 11 COI acres. I think it is something that ought to be considered if they are going to vote; they ought to disqualify themselves. LUKE: Again, as with this Board, you need to declare a potential conflict. But in most cases you are required to vote. In the legislature you were required to vote if you were on the floor, although you have to declare any potential conflict. The audience can raise that conflict, but it is no reason to disqualify someone. Did she state that she works for COI? ANDREWS: I know she works for COI. I have no idea if she stated it. I was just amazed that she was even there voting. I would have disqualified myself. Anyway, that's just one point. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 50 of 65 Pages ANDREWS: I do believe, however, that this property, the two acres that belongs to the Lewis% from what I understand and maybe I'm mistaken, they did try to get that rezoned commercial when they purchased it. I'd be interested to know if that were the fact, and if so, what the reasons were why it wasn't rezoned to commercial. Everybody says that nothing is going to happen out there. If nothing is going to happen, I'd like to know what we are doing here, and why we don't just leave it the same. When you talk about inquiries on property, the 11 acres of COI property, there have in fact been, according to Ron Nelson, some inquiries as to the sale of that property. So the idea of somebody saying that nothing will ever happen to a property is ludicrous. Because if they were to sell the property, it would go fast. A friend of mine called me in regards to two acres that belong to Mr. Lewis. He said that he would buy those two acres in a second if they were broken up into one -acre parcels, and would put in a 7-11. And while we're on that subject, I'd like to let you know, as far as use permitted outright, when Mike was talking about a tower, yes, a television or radio station transmitter or tower is a use permitted outright. So, yes, we could have a tower out there and you'd never heard about that. Also, another concern of a lot of people I talked with is the fact that there might be a bar put out there in the area. And I think that is certainly something to consider, and that is also an outright use. DEWOLF: I don't think that that is accurate, Andy. ANDREWS: Well, it's right here. It says right here, restaurant or cocktail lounge, and that is an outright use. LUKE: But again, Andy, they would have to be able to get a septic permit, and would have to have approved water. ANDREWS: Dennis, let me ask you this question. What would be the problem, then, if the people who own this property as individuals to go and have uses changed on an individual lot basis? Is there any problem with that? Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 51 of 65 Pages DEWOLF: Catherine, would you mind responding to that? MORROW: I just wanted to point out that those are the existing uses, not the proposed uses that he just cited. ANDREWS: I was just reading a list here of uses permitted outright. MORROW: That is under the current zoning, not under the proposed zoning. DEWOLF: So they could do those things now. ANDREWS: That's all I really have to say. DEWOLF: You're complaining about things that are allowed as outright uses right now. They would shift over to being conditional uses. ANDREWS: Well, how do I know that? DEWOLF: If there is stuff that is currently an outright use that you object to, and we shift those over to become a conditional use, it sounds to me like that's what you are looking for, that you want to know about these before they happen. So, by shifting it, it's making the use more restrictive, so there would be notice. The outright use is what is allowed now. So somebody now could be a bar in without anybody knowing about it in advance. If it changes and what is being proposed is adopted, that would no longer be allowed outright. ANDREWS: I think that's fine, but it's the first I've heard of that. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 52 of 65 Pages DEWOLF: That is what I'm trying to explain. ANDREWS: I would like to see a list of the new outright uses, if this were to change. And I don't have one of those. All I had was this information here. That's all I had to go by. I apologize for my ignorance. MORROW: The information was provided at the previous meetings. ANDREWS: I just have one question, and that's it. As far as Glen and the store, they can do anything they want now, really. This does not really affect them in the least as far as I know, except maybe the one -acre thing. What they are doing is fine. My problem is if it was sold, what would happen. You also want to keep in mind that if this were to go to one -acre parcels, that is the potential for a 4,000 square foot building on each of those parcels, three stories high. I think that would a potential of something that we were very concerned about. The only other thing I have to say is that it is a very nice community. We are not like Brothers, Millican or Hampton, and we don't have a major state highway running through our community. It's a small road, and I'd like to see it stay that way. I think if something does come up, I am sure that the property owners would let the people in the community know their intentions. I think the biggest issue here is the way it is noticed and that no one has a clue as to what it means. I think that this should be changed, and I think you'll find a lot more people possibly on both sides at the next meeting if that could be done. MORROW: I'd just like to clarify something factually about the 4,000 square foot building. The administrative rule that we are complying with says that small scale, low impact uses can be 4,000 square feet, total floor space. So it couldn't be three stories; and there is a height limit of 30 feet. GLEN GREEN: I own the Alfalfa store, 26161 Willard Road. I'd like to leave it the way it is. This new way restricts me big time. These guys are barking up the wrong tree if they think this new rezoning is going to make Alfalfa a worse community. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 53 of 65 Pages GREEN: This right here would make it a worse community, the existing way. I can take my property down to one acre or even less, according to the existing way. Right now I could go down to 6,000 square feet. The store is on a little more than two acres. We had to do some rezoning. All the boundaries in Alfalfa were off, so we had to do some lot line adjustments. We own approximately a little over two acres. DEWOLF: But not all of that is commercially zoned? GREEN: All of my property is. About the notification, I have no problem with notifying people within a two-mile radius. But in another respect, if someone away from me does a conditional use permit that is past my property line, don't you think I ought to be notified, too? So that should go countywide. DEWOLF: No, no. If somebody wants to do something on your property, I am not going to require the taxpayers to send out 80,000 notices. GREEN: You don't understand what I mean. I mean the same standard of a two-mile radius throughout the county. Not just the people in rural service centers. I can live with the new proposals. It's not going to hurt Alfalfa, and it's not going to hurt the community. As a matter of fact, it will enhance the community by any other little businesses that come in. Let's say that somebody wants to put a beauty shop in, or a feed store or something like that, which would entice people to spend more money in our area instead of driving all the way to town, sixteen miles each way. They could get their hair done there, they could buy their feed there, and they could get a few groceries. We're not there to make a big killing, but just kind of serve the community. And it says "rural service center". That means that everything you do in there has to be service oriented, right? You couldn't put industry in. It's got to be service oriented. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 54 of 65 Pages GREEN: And you mentioned something about a bar. Well, I haven't seen bad things about a bar. I go downtown and eat dinner at the D & D Bar and Grill, and it's one of the best places to eat in town. A bar is not necessarily bad. You can make it as bad or good as you want to make it. As far as a rural service center goes, if you keep it to service oriented businesses, which it is, as far as one -acre pieces, the community hall property is a little over seven acres, and that's owned by the Alfalfa community. As a matter of fact, they have a set of rules and regulations that were adopted in 1957. And everyone who owns a water right in the Alfalfa area can potentially be a member of the hall. That's the criteria to be a member. The hall will never change. As far as COI property, I can't speak for them but I know how some of the state agencies are. They're never going to sell their property. I could sell mine whenever I want to, and I probably will someday, I may not live there forever. As far as keeping it the same, I have no problem with it. These people need to keep another look at this, because this really restricts people more than it is. I can live with the change, too. I'd like to see it down to one acre, and would like to see language in there saying that if you can put a septic and well on your one acre, DEQ approved, that would be okay, too. If you can structure your business on your one acre and get a well and septic on it, okay. LUKE: On one acre would be tough. GREEN: I know it is. If you could do it, I'd like to see some language to that effect. I think if a guy does a proper site plan review and does the measurements properly, it's possible. That's all I have to say. LUKE: I know in the city when they reviewed their comprehensive plan, they actually changed some zoning on the property maps, but they actually didn't change the zoning on the ground. To change the zoning on the ground, you had to go in with a specific project. Is that something the County does? Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 55 of 65 Pages MORROW: No, the County doesn't do this. I could be done. The idea is that you would have your comprehensive plan designation as one thing, and it was only when you came in to zone it with a specific project, with public notice and review, that the zone could be changed. We don't have the types of uses most cities do. That was for subdivisions and complex site plans. It was for dividing property. GREEN: I would like to say one more thing. Contrary to what everybody has to say, we have a governing bodies that are supposed to be responsible people to tell us when we apply for something whether our community is going to like it or not. That's what you people are for. DEWOLF: I don't necessarily agree with that. Working with the community and working together to arrive at something is what we want. GREEN: And whether a cell tower is put out in Alfalfa or not, whether I can get a conditional use to put one up depends on public testimony and a County decision. LUKE: We have to follow law. On towers, we butt right up against federal law that takes precedence over county and state law. We've run into that a couple of times. We have to be really careful about that. Federal law deals with the communications act. GREEN: To be completely honest, we have poor cell service from Alfalfa to Bend, and it would not hurt the community to have a cell tower if, in fact, it could be disguised to where it wouldn't -- I like the views out there as much as anyone else. I like the dark skies. But I also have to have light around my buildings or people come in and take things. I do comply with the County's lighting ordinances, but I've been broken into several times and the Sheriffs Office recommended that I put more lights up. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 56 of 65 Pages HENRY LEWIS: I guess I have to wear three different hats. I own all the property to the north of this rural service center, across the road. I also own the old school site that is now a residence that's rented out. I'm also president of the Central Oregon Irrigation District board. I have several comments. I have no problem with noticing beyond the traditional area. I would object to excluding the COI parcel from the zoning that it enjoys today. The district has no plans to sell the property, or do anything else with it at this point; it holds it as a lay -down yard for that area and a potential spot to reestablish maybe a ditch rider's house, as was its historic function. The district really has no desire to sell that. Most of that property is encumbered by a gravel pit that is several acres in size. I am in favor of a one -acre minimum. It was mentioned earlier that I tried to get the zoning changed to commercial on what used to be the old school site. I never did this, never tried to, and never approached anybody about this. At the time there were some people in the area who wanted to start some kind of latchkey program, like a kindergarten, but there was not enough interest in the area to promote it. So we had no choice except to do what we've done, and turn it into a single-family dwelling. Two other comments. Really, the property that we are talking about, the community hall property, which is about eight acres or so in size, will probably never be divided or anything else done with it other than a community hall. Apparently it is owned by all of the members of the community. Central Oregon Irrigation District has no desire to do anything with their property other than what it is doing with it now. So that leaves only two properties, my own and the store property, that anything else could ever be done on it. We're probably restricted on what we call the school property because of septic or whatever, for any kind of commercial enterprise. Maybe it could be divided in half and a residence put on it. DEWOLF: Are you in favor of the change? LEWIS: I'm in favor of the change. I'm in favor of the findings of the Planning Commission at the March 14 meeting. Maybe that was a roundabout way of saying this. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 57 of 65 Pages Mer/a What would you think about changing the zoning map but not change the ground zoning until a project came in? LEWIS: What would be the expense of doing this? MORROW: This would be a zone change, with costs in excess of $1,000. When you have a comprehensive plan map and it shows an area to be a particular type of area, the only choices you have when someone comes in to do a development is what zones are allowed in that area. It's more common in a city area. You may have on the comprehensive plan that it is a residential medium density. And then you have duplexes and some others allowed. You can then choose a zone change for the zone that would apply. You would have to apply one of those zones if you did a zone change. You would have to allow one of those zones. LUKE: There are designated uses in the comprehensive plan in cities, and you can come in to the city, and you still have to come in and apply and have a public hearing, even though it's an outright use. The County isn't like that? MORROW: No. They actually follow the zoning. LEWIS: Like I said, I'm in favor of the Planning Commission's findings. MAXINE RHEEMS: I live in Alfalfa, and have since 1986. I'm a little confused still. I hadn't gotten any notice until the March 14 meeting, and live about a mile away from the store. Could somebody please clarify to me that the second picture is the part that goes from the store over to include the community hall? I'm really getting confused on what is included. (A general discussion of the oversized maps occurred at this time) Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 58 of 65 Pages RHEEMS: I like Alfalfa. I know Henry said that COI doesn't have any plans to sell their property, but we have no guarantees. I have watched Bend grow a lot, some of it has been good and some of it hasn't. We don't have any guarantees. I am a COI member, and we all own the property, and we need a written guarantee that they aren't going to do anything with it for five or ten years. And I don't think we're going to get t hat. DEWOLF: Well, there are no guarantees. Whatever we decide here before our time runs out, that's the decision for now. If a few years from now Dennis and I are gone, and the people in Alfalfa move out and in, everything changes, and people can decide differently. RHEEMS: That's another thing. There are so many new people, and so many of the old- timers are moving out or dying off. New people are coming in with their newer ideas, and it's not going to stay the same. So maybe if we can kind of just do the store and let Henry have his school down to one acre zoning, but let's not put in COI water property for the one -acre zoning. I just have a hard time with that. DEWOLF: I accept that, but I'm not sure that we can separate it. We can but it gets complicated. RHEEMS: I get concerned about the community hall. God forbid, if it burned down, then we're sitting with seven one -acre parcels. MORROW: To create the one -acre parcels, you would have to get approval for septic systems on all of them, and have roads to them, and do a subdivision and a lot line adjustment. RHEEMS: I just kind of have a hard time with this one -acre thing. I'd say leave the store and Henry's property, that's fine. I'd like to see the community hall stay the way it is, and COI property stay the way it is. As far as the store and the school, that's okay. I think we need to have a community town hall meeting. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 59 of 65 Pages LUKE: I suggested to staff that we might want to have another hearing in the evening in Alfalfa. Maybe with more notice, and actually walk through what the proposal is and how we got there. I think there is some confusion. I believe what they are trying to do it take advantage of this opportunity to look at our comprehensive plan, make some changes that the communities want, where it doesn't involve a very big, long, expensive process. You have certain windows, and they were trying to do some things within this window. JAN BLAKE: I think we have a unique community, and we don't have a highway going through, and have a small, two-lane road that is winding, with horseback riders on it, and bicyclists on it. That is my point. We have hundreds of bicyclists coming out there, enjoying it, but unfortunately they don't obey the law and don't go single file. They go three across. There's no Sheriff out there anymore to enforce the law. Our Sheriff that used to be out there went to the bicyclists and asked them to obey the law. Nobody is out there to ticket them. They do not move over. You honk your horn at them, you do whatever, they don't move over. There's no enforcement out there. And my thought is that if you make larger area for business to come out there, it is going to draw more cars and bicyclists and horseback riders, and they go through Alfalfa Market Road to get to the fishing areas. They all stop in at the store, and you've got boats and people congested around that area. Which is great for the store, but I'm afraid if we open the door for more businesses that there will be more people interested in coming out there. It's just really beautiful the way it is right now. I would vote for that, to keep it the way it is. PATTY WATERS: I live within a half mile of the hall. I never received a notice until the last one. I did not understand what this was all about. I thought it had to do with farm use, putting in additional dwellings on farms. Regarding the size, one acre is too small, but two would be okay. I don't want to include the COI property. If there is another hearing, I'd prefer it not be during haying season, which is late June or so. WENDY WILSON MAJORS: I live adjacent to the COI and schoolhouse property. I like it the way it is, and would not like to see it divided down. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 60 of 65 Pages DEWOLF: We have heard from a lot of people today, and there is certainly no consistent recommendations coming from the community of Alfalfa. Some want it to change, some like it the way it is, some are okay with some changes. It sounds like we have some work to do. MORROW: It sounds like you have heard a diverse number of opinions. There are a number of options. We can have another community meeting there, perhaps in the evening, within the next couple of weeks. The issues before us are where to draw the boundary of the commercial zone. The community hall could be zoned as a public use or a specific use, such as a park. Then you need to decide on a minimum lot size for the rest of the land. It could be different for different parcels, although they must be able to establish a septic system. The way it is drafted, septic system approval is required before the partition is finalized. DEWOLF: We will work this out in the next few weeks. A good way to handle this might be a kind of charette design process. We want to get a sense of what the community wants, and get to a place where most people are happy with the decision. CRAGHEAD: Unless you want to renotice, we need a specific date. DEWOLF: We'll continue this hearing until next Wednesday, and will set a date then. Before the Board was Consideration of Approval of the Consent Agenda. LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. Consent Agenda Items: 12. Chair Signature of State Department of Environmental Quality Agreement No. 096-02, a Solid Waste Planning and Recycling Grant Program Agreement with Deschutes County Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 61 of 65 Pages 13. Signature of Order No. 2002-054, Surrendering a Portion of NE Hemlock Avenue to the City of Redmond 14. Signature of Order No. 2002-052, Correcting a Typographical Error in Exhibits to Original Order No. 2001-009 15. Signature of Resolution No. 2002-011, Accepting a Petition to Vacate a Portion of 19th Street in Terrebonne; and Accepting the Engineer's Report on Said Vacation 16. Signature of Order No. 2002-042, Setting a Public Hearing Relating to the Vacation of a Portion of 19th Street, Terrebonne 17. Approval of Required Procedures and the Public Process for the Adoption of the Road Department's Capital Improvement Program and Revisions to the Transportation System Plan Project List 18. Signature of a Pedestrian Safety "Mini -Grant" between the State of Oregon and Deschutes County, regarding the Provision of Pedestrian Safety Operations 19. Signature of a Letter Reappointing Paul Stell to the Noxious Weed Advisory Board through December 31, 2004 20. Signature of Order No. 2002-050, Transferring Cash among Various Funds within the Fiscal Year 2001-2002 Deschutes County Budget, and Directing Entries 21. Signature of Resolution No. 2002-014, Transferring Appropriations within Various Funds of the Fiscal Year 2001-2002 Deschutes County Budget, to Complete Construction Projects for the Human Services Building and the Becky Johnson Community Center, and Directing Entries 22. Signature of Resolution No. 2002-016, Appropriating New Federal Grant Funds (for the Community Development Department) to the Deschutes County Budget for Fiscal Year 2001-2002 23. Signature of Resolution No. 2002-017, Transferring Appropriations within Various Funds of the Deschutes County Budget for Fiscal Year 2001-2002 24. Signature of Resolution No 2002-018, Transferring Appropriations within Various Funds of the Deschutes County Budget for Fiscal Year 2001-2002 25. Signature of Resolution No. 2002-019, Appropriating New State Grant Funds for a Health Department Part-time WIC Position Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 62 of 65 Pages 26. Signature of Resolution No. 2002-020, Appropriating New State Grant Funds for a Health Department Half-time Medical Office Assistant Position 27. Signature of Letters Appointing Individuals to the Board of Forest View Special Road District (Ron Tate through December 31, 2003; Richard Brogdon, through December 31, 2002; and Henry Kelley, through December 31, 2004) 28. Approval of the Dissolution of the Regional Workforce Advisory Board (Inactive Since 2001) 29. Signature of Letters Reappointing Ralph Hammer, Susan Nelson and Wanda Gray to the Special Transportation Fund Advisory Committee, through December 31, 2004 30. Signature of a Letter Reappointing Brance Davidson to the Board of Beaver Estates Special Road District, through December 31, 2004 31. Signature of Letters Reappointing Individuals to the Upper Deschutes Watershed Council (Dennis Luke, Kyle Gorman, Ray Clarno and Rod Bonacker through January 1, 2005; and Stephen Fitzgerald through January 31, 2003) 32. Signature of a Letter Reappointing Nancy Schlangen to the Central Oregon Community Action Agency Network, through December 31, 2004 33. Chair Signature of Amendment No. 1 of the Loan Agreement between Deschutes County and the State of Oregon Department of Economic and Community Development, Amending Some Terms of the Agreement and the Project Completion Date (Deschutes County Fair & Expo Parking Project) CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 34. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $27,268.60 (two weeks) LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 63 of 65 Pages CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 35. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $1,411.14 (two weeks) LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 36. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $1,102,963.14 (two weeks) LUKE: Move approval. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 37. Before the Board were Additions to the Agenda. None were offered. Being no further items brought before the Board, Chair Tom DeWolf adjourned the meeting at 1:15 p.m. Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 64 of 65 Pages DATED this 27th Day of March 2002 for the Deschutes County Board of Commissioners. Tom DeWolf, Chair Dennis R. Luke, Commissioner ATTEST: Recording Secretary Michael M. Daly, Commissioner Minutes of Board of Commissioners' Meeting Wednesday, March 27, 2002 Page 65 of 65 Pages