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2003-38-Minutes for Meeting January 14,2003 Recorded 1/22/2003DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL IIVIII) IIIIIIIIIIIIIIII I III I) III 2 03-000038 CLERKDS 1+J 33-38 01/22/2003 02;57;12 PM 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 TUESDAY, JANUARY 14, 2003 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend This meeting was held for the Board of Commissioners to make its deliberations and decision on File #A-02-10 and File #A-02-11 (Partition #MP -02-12), an Appeal of the Hearings Officer's Decision regarding the Approval of a Partition to Create Three Parcels in the F-1 Zone (Appellants/Applicants: Matthew & Rachel Thomas; and Appellants: Sisters Forest Planning Committee/Paul Dewey). Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly. Also present were Kevin Harrison and Catharine Tilton, Community Development; Laurie Craghead, Legal Counsel; Bonnie Baker, Recording Secretary; media representative Mike Cronin of the Bulletin; and five other citizens. Chair Dennis Luke opened the meeting at 2: 00 p.m. Laurie Craghead gave an overview of the two appeals. The applicants, Matthew and Rachel Thomas, have appealed the Hearings Officer's decision condition of approval #4, requiring the appellants to make improvements to access roads servicing the partition. The Sisters Forest Planning Committee has appealed the Hearings Officer's decision to conditionally approve the minor partition. This group listed six assignments of error in the Hearings Officer's decision. Minutes of Public Hearing Page 1 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 The Sisters Forest Planning Committee feels that the Hearings Officer's interpretation of the DCC 17.22.020(a) regarding access by a Forest Service road or a public road is that it did not meet every parcel resulting from the partition needing access, and finds that as an assignment of error. Their contention is that every parcel, not just the original partition, needs to be accessed by one of those two. The second is that the Hearings Officer erred in concluding that the easements constitute written agreement, providing the applicant with permanent legal access to these parcels, under 17.22.020(a)(3). The third is that the Hearings Officer erred in interpreting DCC 17.36.180 by concluding that there was no frontage requirement if you are off a Forest Service road. Fourth is that the Hearings Officer erred in finding that the Sisters Mainline Road does not cross section 21; that there is a break in the easements. Fifth is that the Hearings Officer erred in finding that those easement agreements provide for the required maintenance of the Forest Service road, and finding that because of the fact that she found that a permit could be sought from the U.S. Forest Service. And, sixth, that the Hearings Officer erred in assuming that the Forest Service would approve a maintenance agreement or any additional Forest Service permits. LUKE: You ready? Do either of you want to go first? Okay. For various reasons, to protect the area and going through the winter deer range, leaving the Sisters Mainline Road improved and opened in winter would encourage a lot of traffic in there that we probably don't want. I know that area is patrolled by the State Police and the Department of Fish & Wildlife. (Background laughter.) The joke is that Commissioner Daly was in there and got a ticket while looking at this property for his site visit. That probably is not the best road, for a variety of environmental reasons, to access this property. Minutes of Public Hearing Page 2 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 - Applicant: Thomas) Tuesday, January 14, 2003 We do have a Code problem in that Bull Springs Road is not a public road, but is a private easement. So, we're left with kind of a dilemma. What I would suggest is that the petition be approved with the following conditions. One, as pointed out by the attorney for the applicant, Bull Springs Road should be made a public access road. I would further stipulate that a maintenance agreement between the applicant and the owner, Crown Pacific, be put together to maintain the road in its present condition, and to keep the road open until such time as the road, if they so choose, could be improved to County standards. At that time the County could look at taking over the maintenance and control of that road. It's not a requirement that it become a County -maintained road, but a maintenance agreement needs to be in place until something else is in place to make sure that road is open to the public and maintained. DEWOLF: On that particular point, are we allowed to ask our staff questions when we are doing this? CRAGHEAD: You are allowed to ask staff, as long as it isn't new evidence. DEWOLF: It's not new evidence; it's just a clarification about our Code. Dennis just raised the idea of it being, the words that he used were, "in its present condition". My understanding is that we have two sets of standards for roads that are dedicated to the public. One is that it would be brought up to a County standard where we would take over maintenance; another is that we have a particular standard just for a public road. Is that correct? The reason that I'm asking that is that it would need to be determined if the current condition of that road is acceptable for acceptance if they were able to have that dedicated to the public. CRAGHEAD: To have it dedicated to the public, it doesn't have to be in any particular condition. DEWOLF: That's the question I'm asking. If that's not the case, fine. If it is -- Minutes of Public Hearing Page 3 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 LUKE: (To Planner Kevin Harrison) Come on up. You have roads such as the ones in Deschutes River Woods that are public roads but are all gravel, and some of them have big holes in them. A public road allows public access and doesn't necessarily dictate the condition. Is that close? KEVIN HARRISON: There are public roads, and there are County roads. When a person comes forward voluntarily to dedicate a road, the County's practice has been to require that road to be brought up to current County standards. And then that road may or may not be accepted into the County maintenance system, based upon a determination by the Board or the Road Department. So, my understanding is that there really is one standard for dedicating public roads; it's those standards that we have adopted into Title 17, our subdivision ordinance. But the question as to who maintains it is really separate and distinct. It's not necessarily part of the land use process. It's really a function of the Road Department, and it could be by direction of the Board. DEWOLF: But do we accept gravel roads into our system? HARRISON: The County standard for rural, local roads, where the zoning dictates a parcel size of ten acres or greater, the standard is a gravel or cinder road, twenty feet wide, five inches deep. DALY: The issue on this one is, though, that Bull Springs Road is already paved, and you wouldn't want to put gravel on top of pavement. And it is narrow in a few spots. DEWOLF: That's the minimum standards. DALY: I understand. In my opinion it would definitely pass the minimum standards that we are looking for as far as travel on that road. Minutes of Public Hearing Page 4 of 22 Pages Files #A-02-10 & # A-02-11 (Partition 4MP-01-12 -Applicant: Thomas) Tuesday, January 14, 2003 HARRISON: I can't necessarily speak to that. If the requirement was that the road would have to be a minimum standard County public access road, non -maintained, then it would have to be brought to the minimum width. HARRISON: In this area, where the zoning is forest use, and we have minimum lot sizes of larger than ten acres, the standard would be twenty feet wide, in gravel or cinders, to the property. That would be the minimum. If it exceeds this, that should be fine. DEWOLF: Okay. LUKE: The third thing I would propose that all three lots touch the Forest Service road. CRAGHEAD: So, frontage for all three lots. If nothing else, a flag or pole. LUKE: A flag or a pole would work. CRAGHEAD: You are finding then that the flag or pole lot is sufficient to make it a condition of approval, and not such that it warrants a modification to the application. LUKE: Yes. I agree with you. No, it does not require a modification. That would be my proposal. CRAGHEAD: Do you have a minimum frontage that you would like to see on that? Minutes of Public Hearing Page 5 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 LUKE: You'd want to have it sufficient for two cars. I would imagine at least twenty feet, or maybe you'd be better off with about thirty. CRAGHEAD: You would accept a minimum of twenty? LUKE: It depends on how it is designed. It should be between twenty and thirty feet. CRAGHEAD: if you are going to wait on how it is designed, that's another land use process. LUKE: Thirty feet. That would be my proposal. DALY: So, let me summarize here. The flag part would be basically not an easement, but part of the two lots that don't front on the road. I know what a flag lot is. In other words -- CRAGHEAD: The flag lots are the lots themselves, and the poles of the flag lots are the actual roads going down to the road. DALY: You have two lots up here you have to service. Do you split that in the middle? LUKE: I need to ask Legal Counsel a question, and maybe it will answer Commissioner Daly's question. I believe that a common pole that connects two lots can be owned in common. So, you could actually have one thirty-foot wide pole coming down that both of those two property owners would own and use. CRAGHEAD: That's one way of doing it, yes. It might end up being in a sense a third lot, because it would be the driveway to the properties. It would be better to -- Minutes of Public Hearing Page 6 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 HARRISON: Just to be clear about the notion of a flag lot and frontage, typically when we are talking about flag lots, there's a pole portion of the property and a flag portion of the property. The pole portion is narrow and would extend down to the road and, based on what I hear Commissioner Luke saying, would be a minimum of thirty feet wide at the road. It would be part of the property. Let's say we have two flag lots and two pole portions running side by side. It's not uncommon for there to be a single driveway with an easement agreement for both property owners to use that driveway. The driveway may be on one pole or the other pole, or go down the middle under an easement agreement. Just to be clear, each one of these flag lots has a portion of its property that extends all the way down to the road. CRAGHEAD: Okay, then what you could do is have each property have a fifteen -foot wide, side- by-side pole, so that the total of the frontage is thirty feet. And they can choose how they are going to put the driveway across it. HARRISON: That could be done. That's the most efficient use of that land. CRAGHEAD: In order to avoid another land use process, you'd probably need to determine now where that would go, assuming that it would go along the western boundaries of each of the two new parcels, and the eastern boundary of the larger parcel. If you know what I mean. At this time, the group referred to an oversized map of the properties to discuss the route of the pole sections. CRAGHEAD: What I'm saying is that you could choose the location to be that it would have to run down the western edge of each of the property lines, and when it hits the bottom southern property line of the larger parcel, run across the top there, going east to west. Minutes of Public Hearing Page 7 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 So it would go from north to south right along the western edges of the two new parcels, when it hits the southern property for the larger parcel, it would then run east to west, and then head south and stay right against the edge of that property until it gets down here and comes over. I'll draw it for everybody. HARRISON: Staff has drawn that in. CRAGHEAD: Okay. DALY: You know, one thing you might consider is the width of the flag lots. Some day, way in the future, that might be a road right-of-way, which we would require at sixty feet. LUKE: It's not going to be a public access road. It's a driveway, and is part of the piece of property. HARRISON: Just for clarification, one of the standards in the Code that you are interpreting right now has to do with frontage. It says that all parcels of a partition will have frontage on a public road; a minimum of fifty feet of frontage on a public road except where we have a federal road involved. So, you are interpreting that provision of the Code now, so we need to know what that exception means. What I am hearing you say is that frontage off a federal road is required; the question is, is there a minimum requirement, a minimum amount of frontage required. DALY: So whatever decision we make today could be binding on future applications. CRAGHEAD: It's fifty feet on a public road, but also it's thirty feet on a cul-de-sac. Minutes of Public Hearing Page 8 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 - Applicant: Thomas) Tuesday, January 14, 2003 HARRISON: Then we have this exception for partitions off of federal roads. We need to know what that exception means in terms of whether frontage is required, and if there is a minimum amount of frontage. DALY: We are talking about private drives. HARRISON: In this case, what you are saying is that each parcel has to have frontage on the Sisters Mainline Road. What I think I hear you saying is that the exception language doesn't say a width. What I hear you saying is that frontage on a federal road is still required in a partition. Now the question is, is there a minimum amount of frontage. DEWOLF: If they were just creating one flag lot here, and we went with the logic that we have discussed here so far, you are saying that fifteen feet would be that frontage. There would be some logic to indicate that when our County Code is calling for a minimum road standard of twenty feet, that twenty feet would be a more logical number as a minimum. HARRISON: Well, some of that may have to do with requirements for access permits. On a federal road, the County is not issuing access permits. So that's a nuance here. It's more complicated. LUKE: It would seem to me that twenty feet would probably be a better number, as that would allow two cars to pass with a reasonable shoulder. DEWOLF: So you could have two neighbors who hate each other and they could put up a fence between their two twenty -foot flags. LUKE: Yeah. If they chose not to enter into a mutual agreement, you would have plenty of room then to get in. Minutes of Public Hearing Page 9 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 DALY: The normal width of a traffic lane, even on freeways, is twelve feet. That's kind of a standard width for a single lane of traffic. LUKE: I think fifteen is a little bit small. You might want twenty. That's just a suggestion. DALY: So you are talking about a forty -foot strip here, total. DALY: I agree with you on improving that road all the way out to Skyliners Road. To me, that's not something that we need to do or should do. We have the problem of that bridge also being posted at ten tons. I really believe that the bridge was built to haul timber in log trucks, and those trucks are normally loaded at 80,000 pounds. But that was years ago and it may not be able to handle much any more. There's nothing in the record that I could find, engineering or whatever, that says that road is capable of handling a fifty -ton fire truck. At this point, I don't think that road is an option without that information. Bull Springs Road is the obvious choice. What I read in the record is that it appears the applicant has the ability to do that and make that a public road. If that happens, that is the most logical way to do this, frankly. So I would agree with Dennis in his interpretation. DEWOLF: When you talked about a condition being a maintenance agreement, can you define that a little better? LUKE: Currently, if it becomes a public road, the public should have the opportunity to use the road, so it needs to be open in the wintertime. It needs to be maintained to minimum County standards of twenty feet of gravel or pavement, and the public can travel on it in relative safety. DEWOLF: So you are going to have one property owner be required to maintain -- Minutes of Public Hearing Page 10 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 LUKE: Crown Pacific and the applicant. CRAGHEAD: (Speaking away from the microphone. Not all of her statements could be heard.) Crown Pacific has deeded ownership to those along the road. One matter is the applicant having to provide documentation that the other property owners are okay with a dedication, and are not responsible for maintenance and liability. DEWOLF: But if we make that a condition that one property owner become the maintainer of this road, under the definition that we had talked about earlier in terms of takings and the Constitutional things -- that still concerns me about the maintenance issue. �:� You know, I was thinking about that maintenance issue, too. I live in a subdivision where all the roads are dedicated to the public, and they are not maintained by the County, and frankly if they became impassable the County doesn't care. It's up to the homeowners themselves to get together and make some kind of agreement to maintain those roads. I'm with you in that I don't think that requiring one property owner to maintain an entire road is fair. The other option is to not have a maintenance agreement at all. If people can't get home, they'll need to get together and make some kind of agreement to maintain it. I don't know why we would want to require a maintenance agreement. CRAGHEAD: My issue with the dedication to the public has been that I'm still not certain how the provision that was provided by the applicant gets the other homeowners off the hook. DEWOLF: That's my concern. You've got here on page 3 of the December 31 st letter, under Bull Springs Road, "the applicants are willing and have the legal ability to dedicate fee title underlying Bull Springs Road to the County." Minutes of Public Hearing Page 11 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 On the very next page, in 5. 1, is, "on the written request of Thomas, Crown Pacific shall use reasonable efforts to properly dedicate fee title." Using reasonable efforts is not a done deal. I don't think that they have met their burden of proof in showing that this can be dedicated. I guess the question would be, if this were the direction we are going to go, is do we care? If you make it a condition of approval that they have to have it dedicate, if they can't accomplish that, then the application doesn't work. CRAGHEAD: If what you are using is the Bull Springs Road as their access. DEWOLF: Well, I absolutely don't believe that Sisters Mainline Road fits any reasonable definition of access at all. Not only crossing the winter deer range, but also the condition of the road is not suitable. The fact that Mike (Daly) got a ticket driving on that road. I mean, we've joked about that a lot but the fact is, Mike can drive on my street. As long as he is not driving too fast, he's not going to get a ticket. That's access. There may be some legal technicality that would indicate otherwise. I'm trying to be logical here in my application of this and what makes sense. I would suggest that if this were a typical winter, right now it would be impassable other than by snowmobile. That's not access. And if the Hearings Officer is relying on Sisters Mainline Road as access, where she was right is that it would have to be brought up to standards and maintained. That's not access to me. So, either we require that Sisters Mainline Road be brought up to County standards so that it can be access, or you revert to Bull Springs Road, which I'm not convinced could be dedicated to the public, given the underlying easements, and who has authority there. I'm getting mixed messages in what I'm reading in this information here. CRAGHEAD: So, leaving it to the public dedication process, for them to prove that they have that authority -- because, my issue is that even though that provision is in the Thomas easement, it may not necessarily be in the other property owners' easements. It says they will seek public dedication; it doesn't say that they have the authority to actually get it. Minutes of Public Hearing Page 12 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 DEWOLF: There's a whole host of other issues that Mr. Dewey raised that I found to be very compelling, but not in this type of land use process. It seemed more appropriate for when the time comes for an application to actually have a residence sited here, whether it's appropriate to be having residences out there. That's a whole different issue with a whole different set of criteria. What we're looking at here is the potential for selling to somebody who, for whatever reason, would want an 80 -acre parcel without any guarantee that a home can be built on that. On a technicality, Bull Springs Road does not connect to that property. Bull Springs Road connects to Sisters Mainline Road. The difference with this section of Sisters Mainline Road is that it is improved to a reasonable standard, in my opinion, whereas from what I think is the end of the Tweedfam property to the south, if I'm correct. So, I agree that if we are going to move forward with this that they've got to have flag lots. The thing I don't want to get into is where -- this has gotten so contentious, and every time there's a land use -issue we are dealing with such fine technicalities, that I want us to be as precise as our non -lawyer minds can be in defining what our Code says. To me, the flag lot is a very reasonable position to take; that the twenty -foot frontage, because that's the minimum road standard, is logical to me, because the potential for flag lots exists. That makes logical sense to me. I mean, I have no idea if out in the F-1 zone is logical for a residence. There are instances where it is. But with the winter deer range here and the issues that are faced out here, that's going to be very complicated for anyone who may want to propose putting a house out there. I don't like the idea of a maintenance agreement because I think we are opening up a can of worms there that isn't our responsibility. When it is brought to a County - maintained road standard, then I know who's going to maintain it - our Road Department is. But other than that, if people want to let it go to potholes because they don't want people driving down it and they want to have big, high four-wheel drive vehicles, that's their issue. I don't know how the fire district deals with those kinds of issues, but I don't think that is in our authority. Minutes of Public Hearing Page 13 of 22 Pages Files #A-02-10 & # A-02-11 (Partition 4MP-01-12 - Applicant: Thomas) Tuesday, January 14, 2003 My only problem that exists right now is that I don't believe they have met their burden of proof that Bull Springs Road could be dedicated to the public. DALY: Assuming they haven't met their burden of proof there, we can still approve this subject to their bringing in the dedication. CRAGHEAD: It's another public process, the public dedication process, to prove that they have met their burden of proof on that. DEWOLF: I don't understand. DAILY: I don't either. CRAGHEAD: If you are making a condition of approval that they have to bring in further proof, that's another public process. DEWOLF: Well, they have to dedicate it to the public. Once they've dedicated to the public -- I mean, if that's the condition that is agreed to, once they've dedicated it to the public, they've met their burden of proof; rather, they've met the condition. CRAGHEAD: They've met the condition as long as it is deemed that they can legally do that. DEWOLF: I don't care, who's going to deem that? CRAGHEAD: You will, by accepting it. DEWOLF: They are either going to bring in "okay, it's dedicated to the public" and prove that, or not. Minutes of Public Hearing Page 14 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 CRAGHEAD: You have to accept it. So you still would be part of the process of having to approve it. It is another public process. DEWOLF: And people can object to that? CRAGHEAD: Yes, there could be people who object to that. DEWOLF So, there's somebody else who has an underlying easement, and they say they don't have the right to do that, for instance. CRAGHEAD: In any public dedication someone could come in and do that. Because you have to accept it through a public process. It's like vacating. DEWOLF: So, I'm going to put myself in that position, and you three are the deciding Board here. I come in and I'm opposed to this, and I live on one of these lots, and I say I've got an easement that says you can't do that. And you go ahead and accept it. Then my option is to appeal what you said and go to a higher court and prove my case. And there would probably be real judges there that know the law. CRAGHEAD: Correct. LUKE: You should have a logical reason why you would object to that. CRAGHEAD: You would have to have a legal reason. DALY: Seems to me that their legal counsel here has some legal theory that is going to make it work for them; at least that is what they're saying, so I'm certainly willing to let them try. Whatever process they have to go through to do it. Minutes of Public Hearing Page 15 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 DEWOLF: The one concern that still remains with me is concern about what we are doing in moving into forested areas for potential residential use. The reality is that all of Central Oregon is that at some point in our history, so it's not that I am philosophically completely opposed to any expansion here. But, if we approve this with certain conditions, by doing so are we saying and are we giving our tacit acceptance of the inevitability that these are going to be 80 -acre residential lots? That's something for you to decide in your deliberations here. Because that is part of the arguments of the parties. LUKE: Number one, they could build on them now, if you use the Sisters Mainline Road as the access road. You could do it now. State law governs, because of the template dwelling law; it outlines the concentration of them. DEWOLF: Are you claiming that they'd be able to do three? There is State law in place that covers this. Not everybody can build on every forest lot, but even after the Legislature passed that it was found some could and some couldn't build. State law governs that. Our own Code allows them to build because it's on the Sisters Mainline Road. The Hearings Officer has already made that decision on other properties, like Hap Taylor's. Would someone like to make a motion? DEWOLF: Well, I just want to be clear on the record, that it's not my intention to either overtly or otherwise make any proclamation one way or another on the acceptability of this property for a residence. Is that a clear enough statement for the record? That's not what I am saying here. I don't have any feelings one way or another about that. Although I do have a boatload of concerns about that. Minutes of Public Hearing Page 16 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 Wanting to create flag lots is one process, and I appreciate the frustration that you are going through trying to build your dream. What we are stuck with is this litigious society that rightly or wrongly has made this whole process very complicated for all sides. I believe all sides are doing what they believe is in the best interest for themselves and the people they represent. I have no problem with anybody taking up the various sides. I don't know what the next process might bring. Congratulations on your twins (to the Thomas ). That's wonderful, and I wish you a wonderful life. LUKE: Would you like to make a motion? DALY: I think we are pretty much in agreement in what the standards are going to be -- CRAGHEAD: May I interject here? What I am hearing is that there is a consensus that you are interpreting the Code, with frontage in 17.36.180(a), that there is some frontage required even if it's on a U.S. Forest Service road; that in this case, reasonable frontage will be the minimum road standards, which is twenty feet. And you are requiring that twenty -foot frontage of both of the lots that are being partitioned off the main one. DALY: Are you saying forty feet wide, twenty feet for each one? CRAGHEAD: Yes. And that you are requiring the creation of flag lots with the flag poles, each being twenty feet wide to go along or hug the boundary of the properties as we talked about before. That is not a modification that warrants a new application. You are also stating that the entire Sisters Mainline Road is not the primary access road; only that portion that is north of Bull Springs Road. And that you will conditionally approve Bull Springs Road being the access road if they dedicate it to the public. Minutes of Public Hearing Page 17 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 LUKE: would have a question, to say that the Sisters Mainline Road is not the primary access road; it could be an access road. CRAGHEAD: It is the primary access road to Bull Springs Road, and then Bull Springs Road becomes the primary access road to Johnson Road, on the condition that they dedicate it to the public. DEWOLF: And that it meets the minimum road standard for width and surface. DALY: I have a question. In the event that they are unable to get Bull Springs Road dedicated to the public, does it then go back? Could Sisters Mainline Road become access, provided it is brought up to the standards that we're requiring? CRAGHEAD: It would be a new application, or in six months they could apply for a modification. DALY: We could look at that road as being the primary access. CRAGHEAD: Right. And then we'd have to look at the issues at that time of whether we can require them to improve a road that they don't own. DALY: I quite frankly don't think the Forest Service would want it approved to those standards. DEWOLF: We don't know that. LUKE: Anything else? Minutes of Public Hearing Page 18 of 22 Pages Files #A-02-10 & # A-02-11 (Partition 4MP-01-12 -Applicant: Thomas) Tuesday, January 14, 2003 CRAGHEAD: To clarify the finding on the road for access, it is under 17.22.020(a)(3), you are saying that is also a part of your requirement for frontage, being accessed by either a road dedicated to the public or by a U.S. Forest Service road, and that each parcel that is created has to have this; and you are saying that there is access. DEWOLF: If we're setting precedence that has not been set before, and I don't know if that is the case -- CRAGHEAD: You are. DEWOLF: It's that twenty foot width is the minimum rural road width standard and frontage requirement. Minimum. It could be in other instances it could be different. But I think that the way we are interpreting it is nowhere is it going to be less than that. CRAGHEAD: That's what you are doing. DEWOLF: Okay. DALY: Unless we specifically say that the standards we are setting are specific to this application? LUKE: No, you can't do that. Because you set precedence, and someone can come in and say why are you doing that for them and not for me. You stick with a minimum standard. CRAGHEAD: Although because the Code does not specifically provide for this, in a sense you are saying that it appears to be reasonable in this case. But it does set precedence for the Hearings Officer and for other attorneys to cite. But in some future instances you may be able to say it's not appropriate. Minutes of Public Hearing Page 19 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 DEWOLF: This isn't written into the Code unless we ask staff to bring it back as an adjustment to our Code. LUKE: Is there a motion to accept the findings as presented by Legal Counsel? DEWOLF: No, because I want to see them in writing first. Don't we do that? CRAGHEAD: If that's the direction you leading staff. LUKE: So you don't need a motion? DALY: We could move that Legal Counsel draw these up for our approval. DEWOLF: If we want any further evidence for me why the Sisters Mainline Road is not access, do we need any more of that? CRAGHEAD: Do you want more reasons? DEWOLF: One of the key things for me was in the December 31, 2002 packet of information, there was tab C, which is the order giving a special closure for the Deschutes National Forest from a Norman Arsenalt, dated December 4, 1989. Then tab E is a copy of e-mails to and from Steve George and Tia Lewis, that the enclosed statements are accurate. My difficulty is that you've got Steve George interpreting this order of special closure far beyond what is written into that order. I don't buy it. If I were an attorney and this was a matter of legal dispute, I would go in and say that none of the things that are listed here are listed in that order. This may be Steve George's interpretation, but I don't think it is written in the order. Consequently, I'm not buying at least three of the four issues here that are raised. Minutes of Public Hearing Page 20 of 22 Pages Files #A-02-10 & # A-02-11 (Partition #MP -01-12 -Applicant: Thomas) Tuesday, January 14, 2003 CRAGHEAD: That brings up another point in that the issue of the December 31 submittals by the applicant that were rebuttal evidence, not just rebuttal arguments to the first evidence period. In reading the minutes from the hearing, I took it that the order was for the first seven days to be anybody to turn in any evidence; the second period was to be for rebuttal testimony and evidence to rebut specifically the first period; and the third period was for the applicant only to submit rebuttal. Is that the understanding of the Board as to how you set up those time periods? That was any evidence for the first seven days, the second seven days -- DEWOLF: The second was for fourteen days, because of Christmas. CRAGHEAD: The second time period was for rebuttal evidence and argument; and that the third period was for the applicants' rebuttal. DEWOLF: I'll be honest with you. I almost always write that stuff down, but I didn't. So my memory is not clear enough to say that definitively. If Paul Dewey had requested the ability to respond to this new evidence, I would have been hard pressed to say no to that. We would have then bumped up against the 150 days. Ultimately it didn't come up because the request wasn't made before this hearing took place. But I did note, I think it was January 6, there was a letter specifically addressing new evidence being raised. It definitely had me thinking. That's something for you all to deal with, if there's a step beyond this step. I don't have a conclusion on that myself. CRAGHEAD: So you are giving direction to staff to write the decision based upon today's discussion. Minutes of Public Hearing Page 21 of 22 Pages Files #A-02-10 & # A-02-11 (Partition 4MP-01-12 -Applicant: Thomas) Tuesday, January 14, 2003 At this time, the timing of the preparation of the documents was discussed. It was decided that the decision would be drafted by Thursday, January 23, and addressed at the Board's work session meeting on Monday, January 27. The 150 day period ends at 5: 00 p. m. on Wednesday, January 29; therefore, if any changes or corrections need to be made to the document after the January 27 meeting, the final document can be signed on January 29. Being no further discussion on this issue, Chair Luke adjourned the meeting at 2:55 p. m. x'11 r� DATED this�Day of January 2003 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Dennis R. Luke, Chair � N&O I&PR Z - /,///// , 1�� -01, � 2L Mi hae M. Daly, Co missioner Minutes of Public Hearing Page 22 of 22 Pages Files #A-02-10 & # A-02-11 (Partition 4MP-01-12 -Applicant: Thomas) Tuesday, January 14, 2003