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2002-1276-Minutes for Meeting October 23,2002 Recorded 10/29/2002COUNTY OFFICIAL MARYHSUE SPENHOLLOW, COUNTYRCLERKS CJ 2002.1276 COMMISSIONERS' JOURNAL IIII11111 10/29/2002 04;41;39 PM 20020039'166 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. Deschutes County Board of Commissioners 1130 NW Harriman St., Bend, OR 97701-1947 (541) 388-6570 - Fax (541) 388-4752 - www.deschutes.org MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, OCTOBER 23, 2002 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Today's meeting was preceded by a rousing musical presentation given by Summit High School's "Skyliner Jazz' Present were Commissioners Dennis R. Luke and Michael M. Daly; Commissioner Tom De Wolf missed part of the meeting due to jury duty. Also present were Mike Maier, County Administrator; Suzanne Donovan and Greg Canfield, Mental Health Department; Tom Blust and Gary Judd, Road Department; George Read, Paul Blikstad and Catherine Tilton, Community Development Department; Anna" Johnson, Connie Thomas and David Givans, Commissioners' Office; Tammy Credicott, Property Management; Renee Warner, Building Services; Judy Sumners, Risk Management; Rick Isham and Mark Amberg, Legal Counsel; media representatives Mike Cronin of the Bulletin and Barney Lerten of bend. com; 14 students; and ten other citizens. Commissioner Luke had the County personnel in attendance introduce themselves and explain their duties with the County. Acting Chair Mike Daly opened the formal meeting at 10:00 a.m. 1. Before the Board was Citizen Input. Jeff Rola of Deschutes Soil and Water Conservation District said that the District's Board would be holding a retreat at Deschutes River Ranch's lodge on October 28 and 29. He then invited the Commissioners, and urged their attendance to share their ideas at the retreat. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 1 of 14 Pages Commissioner Luke stated those goats are being used in numerous places for weed control. Mr. Rola responded that these goats are probably the ones that his group is utilizing, and these goats are currently at work in the City of Astoria and in the Portland area. He further said that they have four different producers working, with 1,200 animals total. They are in the process of moving it into a stand-alone, non-profit organization to better meet the needs of the state. 2. Before the Board was Consideration of Signature of a Memorandum of Agreement between Deschutes County and the Crook -Deschutes ESD, regarding the Ready -Set -Go Program. Greg Smith and Suzanne Donovan explained that this is same contract as last year, but includes slightly less money, as contract wasn't received at Mental Health until now. Their department has also experienced some funding cuts from the state. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 3. Before the Board was Consideration of Signature of Order No. 2002-135, Accepting the Engineer's Report and Setting a Hearing on the Final Assessment for Mountainview Local Improvement District. Commissioner Luke pointed out that the cost is lower than expected. George Kolb said this sets the public hearing for Nov. 13. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 2 of 14 Pages 4. Before the Board was Consideration of Signature of Order No. 2002-134, Establishing Mountainview Road and Club Road as Dedicated County - maintained Roads. George Kolb stated that this is another step in the process. After the work has been done, the roads will be inspected and approved into the system. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 5. Before the Board was Consideration of a Decision whether to Hear an Appeal of the Hearings Officer's Decision on the Approval of a Partition in the F-1 Zone (File #MP -02-12 - Appellant. Sisters Forest Planning Committee) and an Appeal of Condition #4 of Said Partition (Appellant/Applicant. Thomas). Catherine Tilton, Associate Planner, explained that before the Board are two appeals of the Hearings Officer's decision to approve minor partition MP=02-12, which would create three parcels in the forest use zone and the wildlife area combining zones. TILTON: Each of the appeals addresses different issues. One of the appeals is by the applicant, and they are requesting review by the Board regarding condition no. 4, located on page 21 of the Hearings Officer's decision. That is regarding required road access improvement to a road that goes to the partition. The second request is by the Sisters Forest Planning Committee, and they disagree with the Hearings Officer's interpretation, primarily relative to road access to the partition. Here's a little bit of background on the partition. The applicants are Matthew and Rachael Thomas, and they are represented by their attorney, Tia Lewis. They applied for a minor partition to divide a 482 -acre parcel into three lots. I'm just going to take a minute and go up to the tentative partition map that was submitted with the application. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 3 of 14 Pages (She then referred to an oversized map of the area, and pointed out the various properties) Highlighted in the light blue, here, is the property boundary, 482 acres. And then parcel A would be 3202 acres, and it's this large parcel here. Parcel B, here, and parcel C, here, will each consist of 80 acres. At this time Commissioner Tom De Wolf joined the meeting. TILTON: This is the appeal. I'm just getting into a little bit of background about the application. So I'll start over with showing the location on the map, so you can orient yourself. The proposed access is a forest service road, which is highlighted here in pink. It's also known as the Sisters forest mainline road. It's not paved, but it is improved. I've been out there, and it's definitely driveable. There's a picture in the packet. Here's another point. The applicants are proposing the primary access being the Sisters forest mainline road. There's a secondary access that they are proposing, and that comes off of Johnson Road, and it is called Bull Springs Road. You can access the forest mainline road from Bull Springs Road, which is a private road. And it connects to the forest service road that goes out to the property. There is no gate on Bull Springs Road, because I've driven down it myself; but it is a private road. DEWOLF: If it is predicated upon that being in any way the access, but it's private, I'd like to know what the legal ramifications there might be. LUKE: How do you access the other road? TILTON: There's a map in your packet, called "location map". It's a GIS generated map. It connects all the way down to Skyline Road. From Skyline Road up to the southern border of the subject property, the length has been calculated at over 5.5 miles. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 4 of 14 Pages DEWOLF: But that is improved to a degree that it's driveable? TILTON: I took a site visit from Bull Springs Road on this portion only. I did not go all the way down. Skyliner Road is the first public dedicated road. DALY: Is the forest service road all the way to Skyliner? TILTON: Yes. As well as, to the extent that they are not improved already, as well as Bull Springs Road. And then the applicants are also proposing another private easement to go through proposed parcel A to gain access to parcels C and B. The Hearings Officer is also saying that this has to be improved to County road standards. DALY: It's my understanding that the only issue is improving the forest service road. TILTON: I believe that's correct. DALY: Another question. Which one is the main access to the property? TILTON: Code requires that the partition be accessed either by a public dedicated road or a U.S. Forest Service road, which is in this case. It doesn't allow for a partition to be accessed by a private road. So the applicants' proposal is to have primary access from the forest service road. However, my understanding is that the applicant intends to use Bull Springs Road to connect to the forest service road, and then gain access to the parcel that way, as I would say their main access. DALY: Do we know who owns Bull Springs Road? You said it's private. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 5 of 14 Pages TILTON: I don't know who owns it. My guess would be Hap Taylor, as he has a pit right here, and there are trucks running up and down all day long to gain access to the surface mining pit. DALY: So Bull Springs Road is already fairly well improved to handle heavy trucks. TILTON: Yes. DALY: Is that a legal access for them? TILTON: I believe so. (Then, to someone in the audience.) Do you know anything about -- LUKE: We can only decide on what is in the record. You can't bring in any other testimony. TILTON: Okay. DALY: The only issue is whether they are required to improve the forest service road all the way to Skyliner Road. TILTON: That's what the applicant is disagreeing with the Hearings Officer's decision. And then we have the Sisters Forest Planning Committee, and they disagree with several interpretations of the Hearings Officer's interpretation of a particular section of the Code. I'm just going to read it really quick, as many of their disagreements are relative to this section of the Code, which is listed on Page 5 of the Hearings Officer's decision. It says, "The partition is accessed either by roads dedicated to the public, or by way of the United States Forest Service or Bureau of Land Management roads. Where the applicant has submitted a written agreement with the appropriate land management agency providing for a permanent legal access to the parcels and any required maintenance. This provision shall not be subject to a variance. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 6 of 14 Pages And the Hearings Officer did her analysis on what was submitted in the record, and she concluded that the easements - there were several easements submitted by the applicant through title that the current owners can use those easements. She determined that those were considered to constitute written agreements. They also include maintenance. So, the bottom line is that she found that the applicant met the criteria of the Code. Both parties are requesting de novo hearings, and if the Board decides to hear this issue, to hear both issues the Code procedures manual requires us to consolidate the appeals and have one hearing. The 150 -day date expires on November 21. If you hear the applicant's appeal, they are willing to extend the 150 -day period. And also if the Board decides to hear the appeal, we need to set a date and time. DEWOLF: What about the other party? Are they willing to toll the 150 days? TILTON: They don't really have a say in the 150 -day issue. Only the applicant does. LUKE: We also have another alternative, to hear the appeal on the record, and maybe on the one issue and not on the other issue. TILTON: You can hear the appeal on the record, but the applicants are requesting de novo because they would like to present new information. LUKE: I appreciate that. But we could hear the applicant's appeal and not hear the other person's appeal. And we could hear it on the record. DEWOLF: Or visa versa. TILTON: That's correct. The procedures manual talks about scope of review, and talks about, "the Board may, at its discretion, determine that it will limit the issues on appeal to those listed in the appellant's notice of appeal; or to one or more specific issues from among those listed on a notice of appeal." Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 7 of 14 Pages DEWOLF: So they've appealed based on four items. We could decide to hear on two. TILTON: That's what it sounds like to me, too. counsel give some advice. Although it might be helpful to have legal DEWOLF: Have we described our options accurately? RICK ISHAM: I'd have to look. LUKE: I guess the options are, one, we could choose to hear de novo. If we hear de novo, both of them get an opportunity to present their case. But we don't have to hear something de novo. Even though somebody asks, we could hear the appeal based on the record only. ISHAM: They could only reemphasize things that are already on the record.You have a unique situation where you only hear some of the issues raised, because the Hearings Officer's decision on those issues would be despositive. So, if during the course of the proceeding you determine that new evidence changed the decision on something you were not hearing, I think you have a conflict between the new record and the Hearings Officer's decision. In terms of the safest course of action, if you are going to hear it, you should hear it de novo, because there may be additional evidence that comes in. And I would hear it on all the issues raised, because then any new evidence that would have changed the Hearings Officer's decision is available for you to consider when reviewing that issue. LUKE: I guess I wasn't clear. If you choose to hear the appeal on the record, you look at the whole record and make your own decision whether the Hearings Officer made a correct determination based on the record. If you hear it de novo, of course you would hear all the issues. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 8 of 14 Pages ISHAM: You don't have to allow any redundant testimony, so it would be only new evidence that would come in. And what happens sometimes, and this is just my opinion, is that when you read the Hearings Officer's decision after having presented the evidence, it's based on maybe the lack of some evidence that had you understood that was the way the Hearings Officer was thinking, you would have basically filled that blank or addressed that issue. Many times, the reason you have a request for de novo hearing is because the parties, whether opposed or the applicant, are actually surprised by something in the Hearings Officer's decision. That's why you get the de novo request. Certainly if you had a complete and full record of every issue, you'd never have a need to have a de novo request. But both parties are asking for de novo, so there must be something additional that they intend to add. DEWOLF: (To Ms. Tilton.) What do you think, if you were up here? TILTON: Well, there's some specific items listed in the procedures ordinance for you to consider whether to hear an appeal on de novo. Some of them are fairly obvious; if the 150 -day time is going to be exceeded. Another one is if the tape malfunctioned in any way. Two other ones that may be relevant here is whether the substantial rights of the parties would be significantly prejudiced without de novo, without their ability to present new evidence to you. That's another reason to hear it. Another reason is that if there is a significant policy issue relative to this particular case. And both appellants - the applicant and the Sisters Forest Planning Committee - are raising interpretative questions of the Hearings Officer, how she interpreted the Code and the evidence. And whether that is considered to be significant enough to warrant a review by the Board, I'm not particularly sure. I think she did a very thorough job in here analysis, but she did make some significant interpretations of the Code. What would I do? I think it's always important to give parties a fair hearing. If they have additional information, which they haven't presented to us and we don't know they are going to give us, it would be an opportunity for them to have a hearing before the Board. That's what the process provides for. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 9 of 14 Pages LUKE: The process also provides for an appeal to LUBA, if they feel they are not being treated accurately. Some of these questions are very technical, legal questions, and some are constitutional issues that are probably going to be appealed to LUBA anyway. ISHAM: There's one important difference between you hearing it and deciding an interpretation of your ordinances, and LUBA. Because the Hearings Officer's analysis of your ordinances is not binding on LUBA. But your analysis of your ordinances, provided it's a reasonable interpretation, is binding on LUBA and becomes the law of the case. As a consequence, as long as your interpretation is reasonable, your interpretation will stand. If the Hearings Officer's interpretation is before LUBA, they make an independent analysis of your ordinances and make their own determination. Even if you think that the analysis of the Hearings Officer is correct, if you don't hear it, your opinion, which was not stated, could be ignored at a higher level. LUKE: Sometimes it is anyway. ISHAM: Actually, the law is fairly clear. They are bound by your interpretation, provided it is reasonable. DEWOLF: I'm willing to hear it de novo. DALY: I feel the same way. I think they have raised some points here that have me concerned, and I'd like to hear it. LUKE: You don't need my vote. DEWOLF: I knew that was coming. So, do we need a motion to hear it, or do we just set a date? Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 10 of 14 Pages ISHAM: You should probably make a motion, and the Community Development can prepare an order for you to sign, setting the date of the hearing. Your motion would be conditioned upon the applicant waiving the 150 -day period. LUKE: We don't have to set the date now. It can be determined later today. TILTON: Would you want to hear it at a normal Wednesday meeting? DEWOLF: No. This will take much longer. I would leave it to the two sides; typically we could start this late in the afternoon, like at 4 p.m. or something. Whatever the two sides are agreeable to, we'll work with our schedules. DEWOLF: I move that we hearing this appeal de novo. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 6. Before the Board was Consideration of Signature of Order No. 2002-131, Authorizing the Refund of Taxes in the Amount of $170.06. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 7. Before the Board was Consideration of Signature of Resolution No. 2002- 099, Transferring Appropriations within Various Funds of the Juvenile Community Justice Fund within the Deschutes County Budget for Fiscal Year 2002-03, and Directing Entries. LUKE: Move approval. DALY: Second. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 11 of 14 Pages VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 8. Before the Board was Consideration of Chair Signature of an Oregon Liquor Control License Application for JETW Company, Inc. (Walker's Grill), Sunriver. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 9. Before the Board was Consideration of a Decision on File # DR -02-02, an Appeal regarding Sideyard Setbacks in a Forest Use Zone (Applicant.- Dowell). Applicant.Dowell). Commissioner Luke stated that he prefers to make a decision on this issue on Wednesday, October 30, as he won't be ready until then. It was pointed out that this meeting would be held at Bend High School. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 10. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $10,907.85 (two weeks). LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, October 23, 2002 Page 12 of 14 Pages 13. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 11. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District, in the Amount of $1,676.87 (two weeks). LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County, in the Amount of $2,072,845.79 (two weeks). LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Before the Board was Consideration of Additions to the Agenda. A. Before the Board was Consideration of Chair Signature of an Oregon Liquor Control License Application for Twin Lake Resort. Commissioner Luke asked if there was still an issue with this business, since the owner may owe the County for transient room taxes. Rick Isham said the OLCC license is issued by the OLCC, and the Board has no authority not to approve it unless there are violations of OLCC rules. The Board indicated they would discuss this further at the Administrative meeting the next day. Minutes of Board of Commissioners' Meeting Page 13 of 14 Pages Wednesday, October 23, 2002 Being no further items brought before the Board, Chair De Wolf adjourned the meeting at 10:40 a.m. DATED this 24th Day of October 2002 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Minutes of Board of Commissioners' Meeting Page 14 of 14 Pages s r a Tom DeWolf, Chai ennis R. Luke, Commissioner � vo 4 //Z//. - 0 /,, /I M'c ael NY Daly, C missioner Wednesday, October 23, 2002