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2003-1254-Minutes for Meeting September 10,2003 Recorded 9/19/2003COUNTY TES FICIAL NANCYUBLANKENSHIP,FCOUNTY CLERKS COMMISSIONERS' JOURNAL 09/19/2003 02:49:06 PM II I I I II I I IIII II VIII (III IIII III 2003-3234 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 BOARD MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, SEPTEMBER 109 2003 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Present were Commissioners Dennis R. Luke, Tom DeWolf and Michael M. Daly. Also present were Mary Fleischmann, Sue Brewster and others from the Sheriff's Office; Mark Pilliod and Laurie Craghead, Legal Counsel; Dan Peddycord, Health Department; George Read, Paul Blikstad, Kevin Harrison and Matt Martin, Community Development Department; Susan Ross and Anna Johnson, Commissioners' Office; media representatives Barney Lerten of bend.com and The Bugle, and Chris Barker of the Bulletin; and sixteen other citizens. Chair Dennis Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. Commissioner DeWolf took this opportunity to discuss an article in today's Bulletin regarding the September 11 observation. He said he hopes everyone understands that the County is not sponsoring the event, and he doesn't feel the County should sponsor an event that promotes a singular religious point of view. He added that there is nothing opposing Christianity; and in fact last year some people were upset because they felt the focus of the event was Christianity, and felt the County shouldn't be sponsoring it. These people did not feel they were a part of that because of a different faith or no faith. That was the concern that was raised. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 1 of 10 Pages He wanted to be clear he is fully supportive of the Bend Ministerial Association putting on the event, but personally does not feel that Deschutes County ought to be sponsoring an event that is aimed at one particular group and not for all of the folks who are represented. He said the County was not invited to be a sponsor last year or this year, but last year the County and the City of Bend were listed as sponsors. Len Knotts of Sisters said that there is a difference between sponsorship and participation. He asked if Commissioner DeWolf s comments refer to participation as well as sponsorship. Commissioner DeWolf replied that his comments refer to sponsorship. He said he would be at the event in La Pine, as is the Sheriff. He added he wasn't asked to participate last year or this year in the Bend event. That's an individual choice and a function of time, as opposed to the other, which is official sponsorship. 2. Before the Board was Consideration of the Reading of a Proclamation, Declaring September as National Youth Court Month in Deschutes County, and a Presentation to be Given by the Bend Teen Court. Mary Fleischmann, coordinator for the La Pine Teen Court, introduced Stephanie Lemke and Kerry Gerard of the La Pine Youth Court; Narcia Espinoza, the coordinator for the Bend YES Program Teen Court; Frank Ribich with the Redmond Teen Court; and Karianne Aaron, the coordinator for the JET (Juvenile Empowerment Team) Program of the Sisters Teen Court, with A. J. Sells, a volunteer for the JET Program. At this time she played a brief videotape that gave a brief overview of the program. Kerry Gerard of the La Pine Youth Court then read the Proclamation. Ms. Fleischmann added that the recidivism rate for youth involved in the Teen Court program is very low - under 7%. DEWOLF: Move approval. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 2 of 10 Pages 3. Before the Board was Consideration of Signature of Document No. 2003- 404, an Intergovernmental Agreement between Deschutes County and the City of Redmond regarding the Sale of Property at Auction. Sue Brewster explained the reason for the agreement, which is an auction scheduled for September 20, which includes items from other agencies. DEWOLF: Move approval, subject to legal review. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. 4. Before the Board was Consideration of Signature of Document No. 2003- 403, an Intergovernmental Agreement between Deschutes County and the City of Prineville regarding the Sale of Property at Auction. DEWOLF: Move approval. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. 5. Before the Board was Consideration of Signature of Document No. 2003- 402, an Agreement between Deschutes County and the Sunriver Service District Authorizing the Sale of Property at Auction. DEWOLF: Move approval. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 3 of 10 Pages 6. Before the Board was Consideration of Signature of Document No. 2003- 405, a Grant Award Agreement from the State Office of Domestic Preparedness for Disaster Preparedness Supplies for the Health Department. Dan Peddycord stated that this small grant, $15,000, flows through Office of State Police to County. The funds will be used to purchase a HEPA air filter, two defibrillator devices, and a number of cadaver bags. DEWOLF: Move approval. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. 7. Before the Board was Consideration of the First and Second Readings, and Adoption, by Emergency, of Ordinance No. 2003-032, Approving a Modification to County Code, Changing the Name of "The Project Impact Steering Committee" to "The Project Wildfire Steering Committee". George Read said that the committee met yesterday, and since there are twenty- two people involved, it was suggested that the number of participants be pared down. This item will be delayed for about a month. 8. Before the Board was Consideration of Appeal #NCU-03-1, regarding the Hearings Officer's Approval of Central Electric Cooperative's Request for a Non -conforming Use to Upgrade a Transmission Line. Paul Blikstad gave a brief overview of the appeal, and reviewed an oversized map showing where the proposed transmission line would be. Most of it goes over Bureau of Land Management property, but a portion would go over property owned by the Cyrus'. He added that this was originally decided administratively, and was appealed by the same appellant, the Cyrus family, to the Hearings Officer. A hearing took place and testimony was given; and a decision was issued on August 25. An appeal of the Hearings Officer's decision was then made to the Board of Commissioners. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 4 of 10 Pages According to the Hearings Officer's decision, the 150 -day time period ends on September 29, so there is a severe time constraint. It is staff s opinion that the Hearing Officer's decision was sufficient in its entirety as to the issues noted in the appeal and the application. It is also staff s opinion that the Board not hear the appeal. Laurie Craghead stated that a hearing would have to be requested on the record, and a ten-day notice period would follow. Then the decision would have to be written if the findings differ from that of the Hearings Officer. If the Board decides not to hear the appeal, the decision of the Hearings Officer would become final. The appellants could then appeal directly to the Land Use Board of Appeals (LUBA). Commissioner DeWolf asked that if one Hearings Officer is appealing the decision of another Hearings Officer, does that constitute a conflict of interest. Ms. Craghead indicated a waiver of a conflict of interest was signed, and no concerns were raised by the parties in this regard. The Hearings Officer does specific appeals; for instance, not EFU areas, so is able to represent people who may be in opposition to the other Hearings Officer's decisions. Commissioner DeWolf stated that the file looks complete to him, and he feels it should go straight to LUBA. Commissioner Daly said that he read the file, and agrees with Commissioner DeWolf that the record is clear; and that it would take a lot of testimony to change that. He indicated there is nothing in the appeal brief that he sees as an issue, and it would go to LUBA in any case. Commissioner Luke stated that there really isn't enough time for the Board to hear it, and it would likely go to LUBA anyway. Commissioner DeWolf added that the only way to hear it would be de novo, and there is not enough time for that process. DEWOLF: I move that we decline to hear this appeal. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 5 of 10 Pages 9. Before the Board was Consideration of a Decision on the Appeal of File #s A -03-8/V-03-3, regarding the Hearings Officer's Denial of a Setback Variance Request (Applicant: Johnson). Matt Martin provided a brief overview of the issue. DEWOLF: After conferring with Legal Counsel on a couple of the questions that I had, and because of the fact there is already an exception that is the variance, to allow a variance to that exception isn't logical. LUKE: I'd be willing to look at this as a separate issue, if we are looking at a change in the Code. Then we could take a look at how many pieces of property it could affect and if there is a way to change this without seriously disturbing the original intent of the setback from the rimrock. But I don't believe this case is the one to do it. I think we need to take a look at the statute if staff believes we should, or if the appellants want to pursue that. I'd be happy to take a look at that. DEWOLF: But there certainly aren't any guarantees that we would change the ordinance. LUKE: No, there isn't. But at least we can take a look and see what the ramifications are. With one decision like this, it is really difficult to figure out how it might affect other applications, or people who have already had to conform. DALY: I kind of agree with Commissioner Luke. This is one of those things where there are unintended consequences in the ordinance. The right thing to do would probably be to allow him to go ahead and build his house, and he wouldn't be any different than the houses on either side of him. Unfortunately, the ordinance doesn't allow us to do that. I'd be willing to look at changing the ordinance, too, if that's at all possible in the future. DEWOLF: I move to direct staff to write findings denying the application, based on today's conversation. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 6 of 10 Pages 10. Before the Board was Consideration of Chair Signature of a Letter Agreeing with Employers Defense Alliance and Harrang Long Rudnick, P.C. to Provide Legal Defense to the County relating to PERS Litigation. MARK PILLIOD: We've discussed the PERS litigation issue of the defense being furnished by a consortium of local government associations, and the concern that the Commission has expressed about the potential for an adverse award of attorneys fees if the case goes against us. I have communicated with Bill Gary, the lead attorney for the defendants - local governments - who had the conversation with Nick Alexander, the plaintiffs counsel in the Anderson case, one of the companion cases that names Deschutes County as a defendant. In that communication, Gary indicated that Alexander would not be able to provide us with a letter that he was assured would be forthcoming until next week at the earliest. Inasmuch as an appearance is necessary by the defense no later than today, he suggested that he provide an appearance on behalf of all of the defendants, including Deschutes County. This would be done with the understanding that if the letter is not forthcoming as expected, and the Board continues to have concerns about this and wishes to go in a different direction, that we could furnish a substitution of counsel and go in a different direction. I think that it leaves the Board with some flexibility if it wishes to take a different tact, and provides the County with the defense that is necessary today. And, as I said, the principal concerns or the lion's share of the risk of attorneys' fees has already been addressed. So I would recommend that the Board approve the agreement with the Employers Defense Alliance to allow Gary's firm, Harrang Long, to represent Deschutes County and the other local government defendants in the PERS litigation. LUKE: For the record, the Employers Defense Alliance is the majority of local governments, including cities, counties, school districts and special districts. PILLIOD: That's correct. It also includes the Oregon Health Sciences University. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 7 of 10 Pages DEWOLF: I'm going to vote not to do this; not because I disagree with your advice. I think it's probably good advice; but I want them to understand how concerned I am that we are being singled out from among the other counties, and I'm concerned about our exposure in all of this. DALY: I really don't have the same concerns, and think your advice is well taken. We can always elect to bow out later. LUKE: Currently there is enough money already on deposit with AOC and with the attorneys to do this without additional cost to the County at this time. I think you've done a very good job of getting as much assurance to us as possible; a lot more than we had when we started this process. To me it is clear that the major plaintiffs in this case don't intend to come to local governments for attorney's fees, and the state is the one to do that. DALY: I move that Legal Counsel enter into an agreement with the Employers Defense Alliance on behalf of the County, enabling the firm of Harrang Long to represent the County in the PERS litigation. LUKE: Second. VOTE: DALY: Yes. DEWOLF: No. LUKE: Chair votes yes. (Split vote.) CONVENED AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 11. Before the Board was Consideration of Signature of Document No. 2003- 402, an Agreement between Deschutes County and the Sunriver Service District Authorizing the Sale of Property at Auction. DEWOLF: Move approval. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 8 of 10 Pages CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District, in the Amount of $204.60. DEWOLF: Move approval, subject to review. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 13. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District, in the Amount of $4,617.28. DEWOLF: Move approval, subject to review. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 14. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County, in the Amount of 1,169,417.21. DEWOLF: Move approval, subject to review. DALY: Second. VOTE: DALY: Yes. DEWOLF: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 9 of 10 Pages 15. ADDITION TO THE AGENDA Before the Board was Consideration of Signature of a Notice of Intent to Award Letter for the Construction of the Crisis Resolution Center. Susan Ross said that four proposals were received on the CRC construction project. Kirby Nagelhout came in at $1.35 million; Robinson came in at $1.551 million; P & P Construction came in at $1.25 million, which was right where it needs to be; and CORP, Inc. at $1.375 million. The estimated construction budget was $1.36 million, including the contingency of about $120,000. Mark Pilliod said that because the notice of intent to award becomes an actual award of the contract if there is no challenge, he wants to be sure that the LLC is in place and all documents for the LLC are approved. He expects this to happen, but until then is concerned about the County entering into a contract where the LLC is expected to reimburse the County for the expense before the contract is finalized. He indicated that the notice could be modified to address this concern, but it would take a few days. Commissioner DeWolf urged him to get the LLC agreement done as soon as possible. This item will be addressed again at the Administrative Liaison scheduled for Tuesday, September 16. Being no further items brought before the Board, Chair Luke adjourned the meeting at 10:55 a.m. DATED this loth Day of September 2003 for th eschutes County Board of Commissioners. ' �7 D anis R. Luk C air r' Tom eWolf, ommissioner ATTEST: Michael M. Daly, gmmissioner 11;gUJJ(A -� Recording Secretary Minutes of Board of Commissioners' Meeting Wednesday, September 10, 2003 Page 10 of 10 Pages