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2003-1146-Minutes for Meeting July 30,2003 Recorded 8/6/2003COUNTY OFFICIAL TES NANCYUBLANKENSHIP, COUNTY CLERKDS CJ 7003'li4fi COMMISSIONERS' JOURNAL 08/06/2003 04;52;35 PM 11111111111111111111111111 II III 2003-1146 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.orc MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JULY 309 2003 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly. Also present were Mike Maier, County Administrator; Paul Blikstad and Kevin Harrison, Community Development; Laurie Craghead, Legal Counsel; media representative Chris Barker of the Bulletin; and eight other citizens. Chair Dennis Luke opened the meeting at 10: 00 a.m. 1. Before the Board was Citizen Input. Regular Board meeting attendee Jack Blum introduced his son, Donald Blum, who is visiting for a few days. No other citizen input was offered. 2. Before the Board was a Public Hearing regarding the Annexation of Wickiup Junction Territory into the La Pine Water District, and Consideration of Signature of Order No. 2003-076, Approving the Annexation. Laurie Craghead explained that this is the final step, and this action will benefit the new neighborhood as well as the Wickiup Junction area. She said that at the time of the application the legal description was in error; the Department of Revenue has asked for a new description. Also, the map has been adjusted accordingly. These can be corrected as a part of this hearing. There has been no opposition, but there have been letters in support. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 1 of 21 Pages Chair Luke then opened the public hearing. Kyle Gorman of the Oregon Water Resources Department said the water right serving the area is 2.23 cubic feet per second. In regard to the proposal of the area to be served, he is somewhat concerned about the demand on system once it has been built out. He recommended that the La Pine Water District review the water rights to make sure the water right covers the area to be served. In reality it should be up to Burgess Road only; if it is north of that area, some review is needed regarding a permit amendment and perhaps including additional water rights or a new water right. Commissioner Luke said that four years ago, the County purchased the well and gave it to the District. Mr. Gorman confirmed that it is part of the water right, but unfortunately they gave away other water rights that cannot be pulled back. Laurie Craghead stated that this entire annexation is located north of Burgess Road. Mr. Gorman replied that in order to serve that area, a permit amendment is necessary, as the eventual number of connections may exceed the water right. Richard Nored with HGE Engineering then testified. He said that the boundaries that were drawn before the La Pine Water District was formed did not include Wickiup Junction, but it was anticipated it would be part of the system. It will require a boundary change of the water right. From the standpoint of all who are involved, the water rights will probably last twenty years, including the necessary fire flow. He said they know they should be looking at further rights, but at this point financially the District cannot handle it. If a water right was abandoned on behalf of the District, he is not aware of it; and perhaps other parties were involved. There is a small water right belonging to Neil Russell, which is part of a private water system serving some residents of La Pine. It's possible it could be acquired, and this has been discussed with the Water Resources people. And other citizens may have individual water rights that possibly could be purchased. He added that the good news is that the District water was in place yesterday and was used by fire personnel for a local wildfire. They are now in the process of working on preparation so that it will be available to the citizens in a few weeks. In Wickiup Junction, it would serve the commercial core and any residences connected with those businesses. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 2 of 21 Pages Mr. Gorman said that he will help out as much as possible with the permit process, and his testimony today should not inhibit the annexation from going forward. Being no other testimony, Chair Luke then closed the hearing. DALY: Move approval. DEWOLF: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. 3. Before the Board was a Decision on Whether to Hear an Appeal of the Hearings Officer's Decision Granting a Landscape Management Permit Approval for Cascade Gardens (File #s LM -03-56, A-03-0; Applicant: Miller; Appellant: Lorenz). PAUL BLIKSTAD: We went over this somewhat briefly on Monday. The department has received an appeal of the Hearings Officer's approval of a landscape management permit for Cascade Gardens. I believe you are all familiar with the site. We identified two issues, and they both are addressed in the Hearings Officer's decision, one being the non -requirement for a conditional use permit for a commercial activity in conjunction with a farm use. That's a use listed in the MUA-10 zone. The Hearings Officer found that wasn't necessary in this case. It was an issue before the Hearings Officer, and it is an issue on appeal that this requires a conditional use permit. The second issue was the Hearings Officer's decision that this use is subject to not just landscape management review, but site plan review under Chapter 18.124 of the County Code. She based that decision on the language in Chapters 18.84 and 18.124, which both mention landscape management areas requiring site plan review. If you were to hear this appeal, that issue is not before you on this appeal. The opponents are in agreement with the Hearings Officer's requirement that this use, these greenhouses, are subject to site plan review. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 3 of 21 Pages DEWOLF: And the applicants didn't appeal on that? BLIKSTAD: Correct. So if you were to change that finding by the Hearings Officer, you would actually have to hear this de novo, should you choose to try to make that finding. I'd like to briefly go over some of the other issues that they listed, in case you haven't had a chance to read through the entire notice of appeal. The first one is, "the property is not being used for the growing and selling of nursery stock", and that's probably the only problem I have with the Hearings Officer's decision. She mentions that this site is currently being used for that purpose. Well, it's not. The applicant has been waiting for the outcome of this landscape management permit to do anything out there. So there is nothing out there now. DALY: So the Hearings Officer did err in that one issue. Does it matter? BLIKSTAD: No, do you see that it is critical? Because it is kind of like what you had before you, the cart before the horse. He can't really get started until he's got a place to put the plants. KEVIN HARRISON: What the applicant has proposed is horticulture, and it is an agricultural use that is permitted outright. The greenhouses are an integral component of horticulture. They are used to grow certain kinds of plants. So putting up those structures to grow flowers or whatever is part of an agricultural use. That would be our reasoning. BLIKSTAD: The other thing that I'd like to point out is that if this weren't in a landscape management zone, we wouldn't even be here. Since this is an MUA-10 zone, if he was outside the LM zone, he could just build them, with any necessary permits. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 4 of 21 Pages They also listed the misidentification of Pinehurst Road as Plainview Road, and that was actually staff s fault. I used both terms in the staff report, and it somehow got into the decision. But everybody knew where the property is. DEWOLF: We know where it is. BLIKSTAD: This is another big issue that was brought up in the appeal, the large areas of reflective material, the Visqueen covering the greenhouses. These again are not wooden structures; they are like metal pipes with Visqueen over the top. The opponents were concerned with the impact of these structures on the area, and in the notice of appeal, the issue of a balancing act between what isn't allowed as an accepted agricultural use and what the LM zone restrictions require. Now, our Code says, "no large areas, including roofs, shall be finished with white, bright or reflective materials. Metal roofing material is permitted if it is non -reflective and of a color that blends with the surrounding vegetational landscape." That provision is in there, but also in the Code under the same chapter it talks about the application of the LM zone. And at the end of that paragraph it says, "The limitations in this section shall not unduly restrict accepted agricultural practices". So, Ken was saying in his notice of appeal that there has got to be some kind of balance there. He felt like instead of any balance, it was all tipped towards agricultural use. LUKE: I remember at the time, if the landscape management zone had been put through like it was first proposed, you couldn't have painted a barn red. BLIKSTAD: As a matter of fact, I did go through the legislative history on this, and there were comments like that. LUKE: Oh, yes there was. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 5 of 21 Pages BLIKSTAD: They talk in their appeal about the removal of signage. I think we probably consider those temporary signs; I don't know that it was an issue before the Hearings Officer or before the Board. LAURIE CRAGHEAD: That's a Code enforcement issue. And I don't know that it could be a condition of approval. BLIKSTAD: "The number of greenhouses goes beyond non-commercial permitted use in the MUA-10 zone." Again, that gets back to what we allow as horticultural use. CRAGHEAD: As I recall from having quickly read it, it also goes to the Code provision that talks about how much land area can be used up by structures. BLIKSTAD: Not in the NWA- 10 zone. LUKE: You are going through a lot of things, and I appreciate that. It sounds like there is a recommendation from staff that we should probably hear this, and that it should be de novo. DALY: I don't think that's their recommendation. BLIKSTAD: I don't -- LUKE: Well, if there's not, go ahead. Eventually you are going to get to a staff recommendation. BLIKSTAD: "Screening of greenhouses from Highway 20." The Hearings Officer did require some screening; I don't know that you could completely obscure these structures from the highway. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 6 of 21 Pages DALY: Is screening a requirement in this zone? BLIKSTAD: It is in the LM zone. LUKE: But not if it unduly hampers agricultural operations. BLIKSTAD: That's dealing with colors. But it says, "The planning director or hearings body may require the establishment of introduced landscape material to screen the development, assure compatibility with the existing vegetation, and reduce glare." DEWOLF: But that's all addressed by the Hearings Officer. BLIKSTAD: Yes. And then "the prohibition of sales and marketing to the public"; we don't believe that the County has the authority to do that under the LM criteria. DALY: Was that a Hearings Officer requirement? BLIKSTAD: No. DALY: Didn't they voluntarily agree not to sell to the public? CRAGHEAD: That would actually come under our Code, because if they did start selling to the public, we probably would make them have a conditional use permit for a commercial usage in conjunction with an agricultural use. But that is not what is being proposed here. Since that is another permit process, I don't think we can make it a condition of approval requiring that prohibition, because it is already prohibited. That's a matter of Code enforcement. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 7 of 21 Pages LUKE: I thought state law, if I remember, allowed incidental sales of farm products. Is that just in the EFU zone? CRAGHEAD: It's a conditional use. HARRISON: No. The definition of agricultural use includes the selling of products that are raised on the land. Our understanding of agricultural use has always included the sale of those things that either grow or are raised on the property. BLIKSTAD: That's a fine line, because how much does he bring in, how much does he grow and for how long? I see it as an issue. DEWOLF: But the intention is not for this to be a commercial operation, a retail operation, in that location. BLIKSTAD: That's what was stated. DEWOLF: So it's not an issue for us to deal with. If they do that, then there are Code issues and we deal with it at that point, if this moves forward. DALY: But what Kevin just said leads me to think that you don't agree with that, that we don't need to require a conditional use even if they did want to sell to the public? HARRISON: I think by definition, agricultural use would allow the sale of those products that are grown or raised on the property. And there is no distinction between retail and wholesale. LUKE: That's a state statute, I believe. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 8 of 21 Pages HARRISON: Not in the LM zone. In the EFU zone, that's right. The definition of agricultural use in an EFU zone comes to us from state law. And it says the same thing. You get to sell what you raise or grow on the property. He's saying it right. There sometimes are incidental things that people are selling in conjunction with an agricultural use, so you would get a conditional use permit for that. But this is not. What he is saying is correct; it is part of the farm use definition. DALY: So if we went ahead and sold to the public, he wouldn't need a conditional use permit. CRAGHEAD: If he wanted to sell other things, such as wind chimes, birdbaths, that kind of thing -- DEWOLF: If it is grown there. Right? So if they don't grow orchids, they can't sell orchids, right? And if they don't grow plastic bags of fertilizer, they can't sell them, without a conditional use permit. LUKE: The law was designed for roadside stands. We had many hearings on that. CRAGHEAD: There was one other issue, the traffic issue, the appellants say that because of the intersection -- page 3 of the appellant's notice of appeal, they talk about the leg of the triangle of Pinehurst, Gerking and Highway 20 intersection. That there is extra volume generated by the traffic for commercial truck traffic. LUKE: But that road was scheduled to be closed at one time, but the neighbors objected to that road being closed. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 9 of 21 Pages It's also an issue of the fact that what's in the record, if there is a traffic study in the record or whatever evidence is produced by the opponents. And whether you feel that the record is sufficient to cover that issue. I:V.111 ���ii► I guess our comment here is that the LM review really doesn't -- it is really limited to visual impacts of the structure as seen from the designated roadway. We know that the applicant has to go through site plan review as a conditional approval of the LM permit. Site plan review does deal with access and circulation and outside parking. DEWOLF: If they go through that site plan review and it's determined that they are going to have this horrible impact on those intersections, those would be dealt with as conditions for the permit, correct? CRAGHEAD: Correct. DALY: What I hear you saying is that it is not an issue we need to deal with at this time. HARRISON: In my mind, it's really not a function of the LM review. It does come up in site plan review, and site plan review is a requirement of this application. LUKE: From the Hearings Officer, and this is the first time that this has been required. HARRISON: Site plan review? Yes. LUKE: If we stick with the logic used by the Hearings Officer. CRAGHEAD: But that issue is also not what was appealed. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 10 of 21 Pages LUKE: We could call that up. DEWOLF: Right. We could hear this de novo. LUKE: That's a significant change in County policy. HARRISON: That's the distinction that Paul wanted to draw here, is that this issue of whether site plan review is required is not part of the notice of appeal. The opponents have not raised it. If the Board wanted to address that, it would have to call up that issue on its own motion. That would have to be addressed on a de novo basis. LUKE: Can you hear just the one section on de novo? CRAGHEAD: Yes. Limited de novo. LUKE: Hear the appeal on the record and hear the one issue de novo? CRAGHEAD: If you so wish to hear the rest on the record. LUKE: Are we at recommendation time? HARRISON: I would just like to say that we're here after staff made an administrative decision. That administrative decision was for approval. We felt the applicant met the criteria. And I don't think that we have any problem with the Hearings Officer's logic and analysis. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 11 of 21 Pages LUKE: I love government. So, I need to know what our options are. One, we could hear the appeal on the record. Two, we could hear the appeal de novo. You're telling me that we could hear just the Hearings Officer's new interpretation all by itself without bringing the other appeal up at all? If we chose not to hear this appeal, could we still call up just the one Hearings Officer's decision? CRAGHEAD: I believe you could. DALY: And that being what, the traffic issue? LUKE: That the site plan is required in a landscape management zone. CRAGHEAD: You are in a sense denying the appellant's notice of appeal, but you are also calling up an appeal on that issue. If you do it that way. DALY: We'd be doing our own appeal. IROJ" As you and staff have mentioned to us numerous times in the past, that a higher appeal gives more credit or credence to Commissioners' decisions as the Hearings Officer's decision. CRAGHEAD: Right, but this issue is not on appeal, so it would not be before LUBA, the issue regarding whether to have a site plan. DEWOLF: And the reality is, the applicants did not appeal that, so they are comfortable with it. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 12 of 21 Pages CRAGHEAD: The only way it would be before LUBA is if you were to bring it up on a de novo appeal on your own. Right now, it would not go before LUBA. Even if you chose to accept the Heraings Officer's decision, that would not be an issue that could be raised at LUBA. LUKE: Okay. One of the reasons I'm asking about that is that it sets precedence that we've never done before. So if we accept that and don't reverse it, that could be required of every landscape management decision you make, will require a site plan. DEWOLF: I don't agree with that. LUKE: I'm asking the question. And the other question I'm asking, does it make it retroactive? Can people say that they really should have done that? CRAGHEAD: It would not make it retroactive. You could decide that this is not worth the Board's time at this time to initiate a review of this. However, in the future you could, if this comes before you and you see it's become a problem and want to change the practice in the future. There is case law that specifically says you don't have to continue past practices. LUKE: Do we have an option of doing an ordinance that says this is not required, and run it through the Planning Commission? CRAGHEAD: You have that option as well. DEWOLF: I'd like a sense of where we're at before we continue. I don't want to hear this. I'm comfortable with the Hearings Officer's decision, and ready to be done with it. Personally I don't need to hear anymore, but I guess I want to know if you guys want to hear this or not. If you don't, we can be done with this. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 13 of 21 Pages LUKE: The only reason I would hear it is because of precedent being set on the site plan review. But if we can handle that in a different fashion, I'm happy with not hearing it. DALY: Me, too. DEWOLF: I move that we not hear this, and affirm the Hearings Officer's decision. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. LUKE: I would like to have discussions later -about an ordinance that says it is not required. Before the Board was Consideration of Approval of the Consent Agenda. 4. Chair Signature of Document No. 2003-358, Grant Revision #13 relating to the WIC (Women, Infants and Children) Program for Fiscal Year 2002-03. DEWOLF: Move approval. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 5. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $15,183.83 (three weeks). DALY: Move approval, subject to review. DEWOLF: Second. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 14 of 21 Pages VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 6. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $2,449.15 (three weeks). DALY: Move approval, subject to review. DEWOLF: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 7. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $4,897,398.82 (three weeks). DALY: Move approval, subject to review. DEWOLF: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. 8. ADDITIONS TO THE AGENDA A. Before the Board was Consideration of Approval of the Purchase of Property located at Vermont Avenue and Lafayette Avenue for Public Purposes. This item was removed from the agenda, as it was approved earlier in the week. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 15 of 21 Pages B. Before the Board was Consideration of Approval of Document No. 2003- 362, a Contract between Deschutes County and Ball Janik, LLP regarding Federal Lobbying Services. Commissioner DeWolf indicated that a draft contract is being handled by Legal Counsel at this time. He distributed copies of the draft to the other Commissioners. (A copy is attached as Exhibit A) DEWOLF: Move approval, subject to legal review. DALY: Second. Commissioner Daly stated that as a point of order, this makes sense to him now, and he is willing to give it a try to see if it might be helpful in the future. He said that Commissioner DeWolf has been very passionate about this issue. He indicated that he wants to be kept well informed of any activity, and that it will be a learning experience for him as well. Commissioner DeWolf indicated that it seems appropriate for Mike Maier to be the main contact point. At this time, Commissioner Luke read a printed statement to the audience, giving his opinion of the issue. (A copy of his two-page statement is attached as Exhibit B) DEWOLF: I respect your opinion. All of this has been a good process. What this does for us is to allow us to take the test drive that we've been talking about for a couple of years. I think that is all part of the process. A lot of work has been done to get us to this point. Regarding our experience with Bill Linden, I don't recall us going out for competitive bids when we hired Bill Linden to do work representing us at the state level. LUKE: He was hired before we started. DEWOLF: Was that done with a competitive process, Mike? MIKE MAIER: I don't think so. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 16 of 21 Pages DEWOLF: The other compelling reason to move forward now, in addition to this at a much reduced rate and a very limited time that will allow us to get a feel for how this process works, is the timing. Again, I didn't know whom you were speaking to in Congressman Warden's office. But I actually produced, on the La Pine Senior Center in particular, the application material between Susan (Ross) and me that was submitted to the local field offices of Walden, Wyden and Smith, as well as to the Washington, D.C. offices. And in Walden's office, Brian Hard on appropriation requests in the D.C. office, and he's the gentleman that I'm in contact with on a regular basis. I did the same thing last year with the La Pine sewer project and the Tower Theater project. I'm not sure whom you talked to, but their staff is well aware of this. And the appropriations is happening now, which makes this even more appealing to do this test drive now. The labor and health and human services appropriations bill is out of the House and Senate, and is going to conference without any earmarks specific to the projects. So those would be added at the appropriations conference between the House and Senate. And we don't have anybody in that conference group. So, I think this will be a chance for this firm to prove their mettle on who they know and how those contacts can best be made, and help support the hard work of Walden's, Wyden's and Smith's people will be doing as well. It's like having -- it feels to me that at the state level, we've got a complete football team here, with Bill Linden there. But at the federal level, we're missing our halfback. We're in the big leagues here. As far as this potential conflict, I think you're right, Dennis. This is a very reputable firm. You know, we all agreed to hire Nancy Craven to do this zone change work for us right here, knowing full well that she represents Sunriver, Pronghorn, and what have you. Additionally, we have Tia Lewis as a Hearings Officer, and we all agreed to hire her, but she also represents other people that could potentially appeal to LUBA what we do. Bill Linden himself represents us, and he also represents the beer and wine industry. This County has taken a position in support of an increase in the beer and wine tax that our lobbyist, Bill Linden, is lobbying against. Those kinds of things happen. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 17 of 21 Pages As you have stated many times, having people able to represent fairly both sides of an argument is a real benefit for somebody who is representing local government at the state or federal level. And I agree with that. I look at this as a very opportune time to give this a try. It's understood that in four months our full range of options is open. If we are happy with the work that's done by Ball Janik, we could continue that as a personal services contract. We've done that plenty of times in the past. We can go out for an RFP. The other thing is, we could decide to cancel it altogether as a failed experiment. And rather than spend the $80,000 that we approved in the budget, we'd be doing it for $20,000. I think it's a great opportunity for us, and I hope that we will all keep our minds open; you to the possibility of this working, and me to the possibility of it not working, and allow this firm to do its best for us. LUKE: You've used the reduced rate argument a couple of times. And we don't know, because we haven't gotten bids from anybody else. Washington County, who hires lobbyists for three different functions, one is light rail which we don't have - but they pay less than the original bid from Ball Janik, and they bring in money for them up there, too. So, we don't know that it is a reduced rate. DEWOLF: That's my mistake. I should have clarified further. What I meant was, what we originally been talking about, over $100,000 a year, and agreed to $80,000 which was put into the budget. And this would be the equivalent if we stretched it out. I meant just the comparison to Ball Janik themselves, not to anybody else. LUKE: I hope we have the relationship with Ball Janik that if for some reason one of their clients decides to sue us over room tax or something else, that we don't waive the ethical restriction we have with their firm being able to sue us. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 18 of 21 Pages DALY: I might make a comment or two, since I was the swing vote on this issue. In the past I've always been somewhat reluctant to go along with this simply because we didn't have a direction, we didn't have a particular issue, and I was being asked to vote for hiring a firm with no clear direction. Commissioner DeWolf has always been passionate about this issue, and I think this time he had a couple of things brought up that gave us a clear direction. So I'm willing to go along with the limited contract. We have directions right in the contract, where we're headed. We're looking for Senior Center money, and fire fuel reduction money for our local forests. That's great. I'm going to keep an open mind, and I want to be involved in the process and how it works, and where we're headed. I'm comfortable with David Blair, who was with Wyden's office for years. I feel comfortable working with him. That's why I changed my vote. As far as the state lobbyist issue, I know, Dennis, that you are just as passionate the other way on that. And I have questions about the $40,000 a year for a state lobbyist; not so much during the legislative session, but I have questions about us spending that kind of money even when they aren't in session. I've got a lot to learn, and will keep an open mind on that issue, and we'll see. LUKE: The last session, they were there the whole year anyway. DEWOLF: And maybe this year, too. LUKE: How do you make a determination as to whether they were successful in getting us that money, or the delegation did it? DALY: I don't know. I don't know how we determine whether the state lobbyist is helping us. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 19 of 21 Pages DEWOLF: Same thing with Bill Linden. You've used the example of Clackamas County or Washington County, that their lobbyist brought it in. You said that. To me, it's like that football team. The halfback scores the touchdown because the quarterback hands off to him. Does that mean he scored the touchdown or the blockers who helped him? I mean, it's a team effort. To me, the way that I'm doing this, is it is part of our team to help us succeed the best that we can. LUKE: I want to be very clear that this testimony was about the process, not the firm or whether we should have a federal lobbyist. I'm very uncomfortable with the process. DEWOLF: Understood. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes no. (Split vote) At this time, Commissioner Luke asked why Commissioner DeWolf had requested that no land use issues come before the Board during August and September. Commissioner DeWolf replied that since there is so much preparation work to be done by him and Commissioner Luke regarding an upcoming trial, it would be very difficult if a time-consuming land use issue also needed to be addressed. He added that not much is anticipated by Community Development other than finishing up some existing land use issues. The group then discussed the draft questions to be used for the upcoming selection process for a Senator to replace Bev Clarno, who has accepted a federal position. The questions were refined until they were acceptable to all of the Commissioners. Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 20 of 21 Pages The list of candidates will be known on Saturday, August 2, and it was decided that all of questions would be provided to them at that time so that they can respond in written form. Their replies are due before 5:00 p.m. on Monday, August 4, as the interviews take place on the afternoon of Tuesday, August 5. The interviews will consist of questions from the Commissioners based on the answers provided by the candidates. The list questions will be made available to the public via the County website; and the answers given by the candidates will also be posted on the website as soon as possible. Being no further items brought before the Board, Chair Luke adjourned the meeting at 11:30 a.m. DATED this 30th Day of July 2003 for the Deschutes County Board of Commissioners. ATTEST: JNUW-�So-�- Recording Secretary Attachment Exhibit A: Draft Contract with Ball Janik LLP for Federal Lobbying Services (3 pages) Exhibit B: Commissioner Luke's statement regarding his objections to hiring a federal lobbying firm (2 pages) Minutes of Board of Commissioners' Meeting Wednesday, July 30, 2003 Page 21 of 21 Pages Draft Federal Representation Consulting Services August 2003 — November 2003 Type of Contract: This is a professional services contract between Deschutes County (the County) and Ball Janik LLP (the Firm). Duration of ContracL This contract shall be in force and effect for a period commencing August 1, 2003 and ending November 30, 2003. Scope of Work: Ball Janik LLP will provide federal government relations and lobbying services to the County for the purpose of assisting the County in its work with the U.S. Congress and the Administration on two matters of priority importance to the County: securing $750,000 in special federal FY -04 appropriations for the LaPine Senior Center; and, developing, initiating, and making significant progress toward a new County recommended wildland urban interface forest restoration and wildfire risk reduction program. Range of services: The Firm will provide the full range of lobbying services on two specific projects, including strategic advice, timely reports on legislative action, assistance communicating with the Congressional delegation, arranging meetings and briefings for County officials and key delegation Members and their staff, working with the Committees of the U.S. Congress and their staff, drafting amendments and report language as needed, drafting congressional testimony as required, preparing the County for key meetings with agency and congressional officials, working with the Administration and the United States Forest Service, providing regular updates to the Congressional delegation and to the County, responding to inquires from key officials, and providing a constant presence for the County in Washington, D.C. as well as locally. Reports and communication will be provided to the County on a regular basis via phone, memos, fax, email, and meetings. Specific project timelines and deliverables: 1. La Pine Senior Center: The County has already invested considerable time and effort into this project. The Congressional delegation is well aware of it and supports the County's funding request. However, both the House and Senate Labor and Health and Human Services Appropriations bills for FY'04 have been passed without providing any funds for this project. When Congress reconvenes after the August Congressional recess, a House -Senate conference committee on this legislation could begin. That Conference committee will make the key decisions on which projects do or do not get funded. The Firm will work to ensure that the County's project is not overlooked and that any additional project justifications that the Congressional delegation of the Appropriations Committee requires are provided in an expeditious manner. The Firm HA My Documents\Ball Jan;k t?raft Contract doc Exhibit A Page 1 of 3 will take every opportunity to prepare County officials and project supporters for opportunities to increase support and recognition of this project with the Congressional delegation during the August recess. The Firm will also use its contacts with key Committee Members and their staff to assist the Congressional delegation in its effort to secure these funds for the County. The current '03 federal fiscal year ends on Sept. 30th but Congress is not expected to adjourn by that date. In all likelihood, negotiations on the 14 appropriations bills and major legislation will keep the Congress in session as late as November or December. The Firm will provide regular communication to the County as to the status of this project and any final Congressional action. 2. Forest Restoration and Wildfire Risk Reduction, Deschutes County Wildland Urban Interface: Working with the County, the Firm will develop, implement, and take significant steps to secure a major restoration and fire risk reduction project treating the National Forest fire risk zones in the wildland urban interface zone between Sunriver and Sisters. Such a project will directly reduce Deschutes County's exposure to the potential costs of a major disaster response, and the potential loss of improved property. The project's fundamental goals are to reduce the risk to populated areas from wildfire; enabling the restoration of large tree forest ecology on National Forest lands closest to residential areas; and educating the public about the importance of active forest management in the restoration of natural forest conditions. This entire project cannot be completed in four months, and the Firm estimates that a successful effort will result in project implementation by the summer of 2005. However, within the contract period the Firm will: meet with the County to confirm and solidify its specific goals; meet with Deschutes National Forest officials to secure support for and to define a project scope on an accelerated basis; work with the County and the County Sheriff to ensure broad public and Congressional knowledge and understanding of this effort's top priority and of the financial exposure faced by the County under the status quo forest conditions; work with the Congressional Delegation to explore a possible specific authorization for the project, understanding that Congress may not approve any such site specific authorizations this year; work with the Delegation and senior officials at the Forest Service and the Department of Agriculture to secure Administration commitment to the project; and, actively represent Deschutes County's vital interest in the passage of the Healthy Forests Restoration Act. Personnel and Project Co -Ordination: The County will identify one key point of contact at the County for these matters and the Firm is responsible for ensuring that the County's contract manager is consulted frequently and is at all times fully informed of project status and updates. Michelle Giguere will serve as the Firm's Project Principal for the County. In this capacity, she will finalize all contractual matters with the County, oversee any contract modifications, cancellations, or extensions, and prepare and submit detailed monthly billing statements to the County. In addition, Ms. Giguere will be responsible for ensuring that the Firm's Project Team meets all its responsibilities to the County under this contract. The Project Manager for all work performed under this contract will be David Blair. As such, he will be responsible for overall activities and day to day interaction with the County, the Congress, and the Administration. He will be HAMy Documents\Ball Jai}i1-Draft-ContracGdoc Exhibit A Page 2 of 3 responsible for working with the County to develop the winning strategy on both County projects, determining which member of the Project Team shall undertake which aspect of each strategy, and then ensuring that such work is performed in a timely and effective manner. For instance, at Mr. Blair's direction, other Firm lobbyists such as Rich Nolan (tremendous expertise and extraordinary contacts with the Administration on forestry issues) will be asked to assist the County. Contract terms: The Firm will provide monthly detailed reports of all activities in a monthly bill to the County. The County agrees to pay the Firm the amount of $5,000 per month for professional services and satisfactory completion of the work. The County shall make payments promptly and will reimburse the Firm for reasonable expenses for travel, lodging, meals, communication, postage, and printing, but in no case will such expenses exceed 10% of the monthly fee retainer. The County understands and agrees that this contract is a contract to hire the Firm only to provide federal representation and lobbying assistance to the County and is not a contract to engage the Firm in any legal representation of the County. At any time that the County so decides, this contract and scope of work may be terminated, extended, or modified. Insurance: The Firm shall provide and maintain at its expense professional liability insurance with a combined single limit of not less than $1,000,000 each claim, incident or occurrence. This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this contract. Any deductible shall not exceed $25,000 each claim, incident or occurrence. Compliance with Applicable Laws: The Firm shall comply with all federal, state, and local laws and ordinances applicable to the work under this contract. HAMy Documents\Ball Jan Exhibit A Page 3 of 3 Dennis Luke July30, 2003 In government, process is a very important element. Process, while sometimes burdensome, allows the public make their views known and to take part in the decision making process. We started out with a process to determine if Deschutes County should hire a Federal lobbyist and how to select a company that would best fit our needs. That process made sense and allowed for a deliberative decision. That has all changed with the vote today. Instead of setting out our local priorities and determining which we can handle with our current staff and those where we might need help, the decision has been made to hire this firm for $ 20,000 for four months and see what they can do. It is going to be extremely difficult to determine if they were successful or if we would have gotten the funds anyway through the work of our delegation. Instead of interviewing various firms that have expressed an interest in an open process, we are giving a contract to this firm without any price comparisons or competitive bidding. Our Congressional delegation has been very responsive, supportive of our local efforts and have been successful in bring federal funding to several Central Oregon projects. The latest being a major grant for the Tower Theater and a $ 500,000 federal grant for the La Pine sewer project. Bills have also been passed that allowed us to purchase the La Pine property for the new neighborhood and the Pine Nursery. We have also been successful in getting grants to help with fuel reduction in the urban/forest interface to help reduce the destruction that wildfires can cause. In speaking with Congressional staff, they had high praise for the preparatory work our county staff does for each of our requests which helps our Congressional delegation to be successful on our behalf. The local staff has also told me that they have not been asked to work on a grant for the La Pine Senior Center, but they are working on funds for fuel reduction. In fact, there is a Congressional hearing in Redmond at the end of August to address just these and other issues. I have not made up my mind as to the necessity of having a Federal lobbyist. But I am of a firm belief that the process used to get to today's decision is the wrong process. I object to this process and I am saddened by the precedent that it sets for future decisions. In the last two major projects that I have been personally involved in, expansion at Solid Exhibit B Page 1 of 2 Waste and the Court Technology project, we did extensive research and toured other facilities and had discussions with their staff. When the prep work was completed, we designed the specifications and went out for competitive bids. While some minor research has been done on some other counties that have federal lobbyists, there is still a lot of effort that needs to be expended to help make a good deliberative decision. The firm that is being hired today is a quality law firm that Deschutes County is currently using on a zone change application for the Court House expansion. They also have three very large clients in Deschutes County that they have represented before the County Commission, Planning Commission, and our staff in the past and will again in the future. The question needs to be asked, can they lobby for one of our Departments at the same time they are trying to get them to approve an application without creating a conflict of interest. There has not been a discussion at the Commission level of the potential conflict of interest that might occur because of this new relationship. This expedited process that is being used today makes me very uncomfortable and I do not believe it is in the best interest of Deschutes County. I will be voting no. Dennis Luke July 30, 2003 Exhibit B Page 2 of 2