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2004-768-Minutes for Meeting April 28,2004 Recorded 5/11/2004DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP COMMISSIONERS' J06RNALNTY CLERK U 100068 111111111111 05/11/2004 12:11:53 PM 7d8 IIIIIIIII IIIIIIIIII 200 - 4 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 10:00 A.M., WEDNESDAY, APRIL 28, 2004 Commissioners' Hearing Room - Administration Building 1130 NW Harriman St., Bend Present were Commissioners Michael M. Daly, Dennis R. Luke and Tom DeWolf. Also present were Mark Pilliod and Laurie Craghead, Legal Counsel; Tom Blust and Gary Judd, Road Department; Mary Meloy, City of Redmond; Lin Gardner, Oregon State Department of Human Services; Ted Schassberger and Anna Johnson, Commissioners' Office; Tom Anderson, Kevin Harrison, Catherine Morrow and Cathy Tilton, Community Development Department; media representatives Barney Lerten of bend. com and The Bugle and Jeff Mullins of KBND Radio; and approximately thirty other citizens. Chair Michael Daly opened the meeting at 10:00 a.m. " 1. Before the Board was Citizen Input. CHAIR DALY: I don't know how many of you folks are here to maybe testify or talk about some issues involving the landfill. I heard on the radio that there were going to be some folks here about that issue. We've consulted with our legal counsel, Mark Pilliod, and he is here to talk about some legal issues involved in us listening to some of that testimony. MARK PILLIOD: The County expects that an appeal will be filed from the County's Hearings Officer's decision on land use approval for expansion of the Knott Landfill. If there is an appeal filed, that hearing would be held by the Board of County Commissioners as the decision-making body. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 1 of 19 Pages We haven't received the appeal, but we expect that will happen sometime soon. If the County receives comments, perhaps in this particular proceeding, they would be considered what is called ex parte contacts. Ex parte contacts generally are considered factual material submitted to the decision-making outside of the hearing process. In essence, the problem with ex parte contact is one of fairness to those who aren't present or aren't available to offer any rebuttal comments to that ex parte communication. The Board, of course, has the authority to allow public comments; that's this portion of the regular meeting. But, inasmuch as a hearing on an appeal has not been scheduled, to the extent that the Board receives comments on a land use matter, it does present some problems in terms of the ex parte contacts. What the Board would have to do at the time a hearing was scheduled, before they could participate in that hearing as a decision-making body, would be to place the substance of the communications on the record; and allow persons who want to comment or offer opposing views to those comments an opportunity to give those views. All of this would be done before a hearing could take place. If you fail to do that, there is a possibility that the decision could be challenged on procedural grounds. If the Board wants to receive comments on this matter today, it can do that. People who provide them need to understand what they say today would not become part of the hearing record per se. They are not a substitute for participation in the hearing process, either orally or in writing. People who want to do that would be given notice of the hearing and an opportunity to comment at that time. If the Board chooses to hear or receive comments, I would discourage them from engaging in dialogue or attempting to respond to issues that are raised this morning. There will be an opportunity to do that if and when a hearing takes place. COMMISSIONER LUKE: Would you clarify for me and the audience where we are at in the process? Because there was an appeal to LUBA. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 2 of 19 Pages PILLIOD: It is my understanding that one of the neighbors or a person who lives near the landfill discovered that the Hearings Officer's decision had been rendered, and they happened to reside within the required notice area. Apparently they had not received any notice from the County, and they filed a notice of intent to appeal the decision to the Land Use Board of Appeals, which is the State administrative agency that hears land use appeals. COMMISSIONER DEWOLF: Based on the notice that was just sent out? PILLIOD: No. This was before. We had had contact with the attorney representing this person before the notice went out, and undertook our own investigation to determine just how extensive the failure of notice was. We immediately notified LUBA that we would prefer that they send the matter back; we recognized there were flaws in the notice, and it's back in the County's jurisdiction right now. First of all, the County was not in a position to send out the required notice until after LUBA had returned the matter to us officially. That occurred, and notice apparently went out by the Community Development Department, including the decision itself, to those persons within 750 feet of the landfill. There is a timeframe — I believe it is 10 or 12 days — in which people who receive that notice are given the opportunity to file an appeal of the Hearings Officer's decision to the Board. LAURIE CRAGHEAD: I just wanted to make a clarification that CDD actually started investigating the notice issue at the very first time you had citizens come before you, and two people in the same meeting said that neither of them got a notice. That prompted CDD to research what had happened. That was before any attorney had been contacted. We just didn't have a chance to bring the results of that research to the Board until after the attorney had been contacted. It is my understanding also that if there are people who need copies of the Hearings Officer's decision, CDD will bring those over shortly. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 3 of 19 Pages DEWOLF: In the ten years that I've been involved in this crazy business, attorneys have always discouraged any ex parte contact, to keep things clean. Are you changing my perception of that, or suggesting that? Do you have a recommendation this morning that we hear or not hear from people on something that may be coming before us on appeal? PILLIOD: Certainly it would be a way in which the Board could avoid a potential procedural problem in the future, if it were to refuse to receive ex parte communications this morning. Because of that concern, yes. I would be consistent with your experience, which is to discourage that from taking place. LUKE: During the time frame of the appeal, if no appeal is filed, then this would be an appropriate time, this time period of our meetings, for that type of conversation. It's just from now until the end of the appeal time. DEWOLF: When is that? When's the date? CRAGHEAD: I think it's the beginning of next week. I don't remember exactly. DEWOLF: So, once that appeal period runs out, either there will or will not be an appeal filed. If it's not, then anything is fair game. If it were, we would still continue not to have ex parte contact because there will be an appropriate public meeting set up where testimony will be taken and a decision rendered. PILLIOD: That's right. DALY: As Chair of this Board, under the citizen input part of this, I'm going to deny any testimony concerning anything pertaining to this landfill issue because of the reasons we just heard from Legal Counsel. I assume that my colleagues agree. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 4 of 19 Pages The citizen input portion is basically designed for people who want to come before us on any issue that is not on the agenda. I think we've clarified that this land use issue is off limits at this time. Is there anyone else out there in the audience who wants to come before us to talk about any issue that is not on the agenda, other than the landfill issue? LUKE: Could I ask a clarifying question of Legal Counsel? It is always a citizen's right to petition the government. If we receive letters on this, is that ex parte contact that needs to be put into the record? E-mails and letters, and those kinds of things? PILLIOD: It would be the same. You could receive them but it would be necessary for the Board to retain them and furnish them at the time of the hearing, and announce them and give persons an opportunity to respond to the substance of them. Again, it creates a bit of a procedural hurdle for the Board to follow at the time a hearing is conducted. DEWOLF: We've already received several. There are constituents out there who are forwarding us e-mails from other constituents. Obviously, we're getting this information. So what we need to do is send that over to the appropriate person in the Community Development Department as part of the record, if an appeal is filed. PILLIOD: Again, it's an obligation of the hearings body that receives them to undertake these additional steps before the hearing is conducted. So, receiving these does create that problem, whether it's in the form of a letter, an e-mail, or even a phone call. DALY: I want to say that I know all of you folks who are here have questions. But the appropriate venue for that is the public hearing. That way the folks who are opposed and in favor will have an equal opportunity to talk and get their questions answered. It is inappropriate for us to take any kind of testimony under the citizen input portion of the meeting today. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 5 of 19 Pages DEWOLF: It should also be pointed out that the three of us are the only ones this refers to today. If you have a question for Legal Counsel or for anyone in Community Development or the Landfill, you can communicate directly with them. It's just that if an appeal is filed, the three of us will be sitting as the appeals body. We just have to be fair to everybody on all sides of this. That's the law. LUKE: We may be sitting as that appeals body. There may be a decision not to hear it, and it would go directly to LUBA. DALY: Is there any citizen input on any other issue? None was offered. 2. Before the Board was the Reading of a Proclamation Declaring May 6 Central Oregon Volunteer Appreciation Day. Lin Gardner of the State of Oregon Department of Human Services and Woodie Medeiros (who runs "Grandmas' House") came before the Board. Ms. Gardner then read the proclamation. She said this is the 15th year of the event, which takes place on May 6 at the National Guard Armory from 6:00 to 8:00 p.m. (see Exhibit C, attached). Commissioner Luke commented that the volunteers are outstanding and the County would be hard pressed to operate without their help. LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 3. Before the Board was a Presentation of a Follow-up Request for Road Funds. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 6 of 19 Pages Mary Meloy, City of Redmond Public Works Director, explained that the City is requesting $85,000 for the next two years. They are asking for assistance from the County's road fund for maintaining roads in the urban area. Tom Blust stated that in 1998, Deschutes County entered into agreements with all three of the incorporated cities in the County for those cities to take over maintenance of all of the roads within the urban area. At the time, there was a different formula used for each city. Under the agreement with the City of Redmond, they were paid $230,000 a year for a five-year period. That expired last year. It was based on the number of roads miles that were in the unincorporated urban area, and a portion of forest highway dollars based on the historical amounts we had shared with the cities. The logic at the time was that the cities were in the process of doing annexations, and assumed that over a five-year period most, if not all, of the areas would be annexed. The City of Bend actually did annex everything within the urban growth boundary. Their agreement was somewhat different; it was a five year agreement but was a declining dollar amount based on the fact that we knew they would be annexing over that period of time. Just a little history on how the State motor vehicle revenue works. It is split up with 16% going to the cities, and 24% to the counties. The city portion is based on their proportionate share of the population. So as a city would annex, their proportionate share would go up if they were growing faster than the rest of the state. It doesn't impact the counties' 24% share; it is split up among the counties based on the number of registered vehicles. Whether or not the cities annex, the counties' proportional share would stay the same. Commissioner DeWolf stated that this was one of the misnomers in the letter received from Mayor Unger of the City of Redmond. The cities' pot of money is the cities' pot of money; and the counties' funds are not connected in any way. Commissioner Luke said that just because a city annexes an area, doesn't necessarily mean they take responsibility for that road. Tom Blust replied that when a city annexes an area, under state law the road jurisdiction is a separate action. It doesn't transfer over to the cities until there is an agreement between the city and the county on the transfer of the jurisdiction. However, under the agreements entered into in 1998, it specifically was part of the agreement. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 7 of 19 Pages Commissioner Luke reiterated that the cities weren't forced into these agreements. They could have said that they didn't want to do it or it wasn't enough money for them. They would have still been County roads, and the County would still be responsible for maintaining them. Mary Meloy stated that the City is annexing them. She said that the city is struggling with road maintenance costs, and there are only nine miles left. They have an annexation plan, and asked that the County provide for two years of maintenance for those nine miles. Commissioner DeWolf explained that the city needs to be responsible for its choices. To send money to the City of Redmond would not be fair to the cities of Sisters and Bend. It also takes away from the work the County needs to do, and the County is already struggling with the workload and cost. He added that he has been consistent with the City Council on this issue. He said he couldn't in good conscience do this, as it is unfair to the other cities and to County citizens. Ms. Meloy stated that the City is trying to make sure that they have enough money to maintain their roads, and are making a request in good faith. No one else has brought an amendment to the County for this. Commissioner Daly observed that the County is dealing with the same situation. Without adequate funds, it's hard to accomplish all of the work that needs to be done. No vote was taken on this issue. 4. Before the Board was Consideration of Signature of Document No. 2004- 083, Document No. 2004-180, and Document No. 2004-181, an Intergovernmental Agreement, Purchase and Sale Agreement, and Bargain and Sale Deed and Trust Deed between Deschutes County and the City of Redmond regarding the Sale of County -owned Property to the City of Redmond. Mark Pilliod said that the transaction is ready to close. It isn't necessary to close this in escrow; it can be handled more informally. However, the County does have an obligation to furnish a title insurance policy. The City Council discussed this issue yesterday, and expects the Board of Commissioners to sign today. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 8 of 19 Pages Commissioner Luke stated that he is pleased that the County is able to do this, as this property is the City of Redmond's future and should be in their hands. LUKE: Move approval of Document No. 2004-083. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. LUKE: Move approval of Document No. 2004-180. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. LUKE: Move approval of Document No. 2004-181. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 5. Before the Board was a Public Hearing regarding Remonstrances for Bull Bat Lane Local Improvement District; and Signature of Resolution 2004- 032 Directing Bull Bat Lane Improvements to be Made by Contract. Gary Judd said that no objections have been received thus far. Chair Mike Daly opened the hearing at this time. One member of the audience, Sue Deevy, stated that she owns a property at 15963 Bull Bat Lane as well as an adjacent property; she started this process some time ago. She added that Gary Judd has done an excellent job in working with the local citizens on this issue. Being no further testimony received, Chair Daly closed the hearing. LUKE: Move approval. DEWOLF: Second. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 9 of 19 Pages VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 6. Before the Board was Consideration of Signature of Resolution No. 2004- 033, Declaring the County's Intent to Issue Obligations to Reimburse the County for Certain Expenditures regarding the Bull Bat Lane Improvement Project. LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 7. Before the Board was Consideration of Signature of Document No. 2004- 179, an Intergovernmental Agreement between Deschutes County and Jefferson County regarding Providing Housing for 18 -Year Old Detained Youth at the Jefferson County Jail. LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 8. Before the Board was a Decision on an Appeal of the Hearings Officer's Decision Denying a Verification of a Non -conforming Use (Applicant: Fleming). Cathy White provided an overview of the issue. She said that she provided a revised timeline sheet to the Commissioners earlier in the week. The decision would address whether there is a non -conforming use at the property. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 10 of 19 Pages If there is, has it been in continuous use over a period of time; or has there been an abandonment of either the entire thing or portions of the use. Things to consider in terms of abandonment are hours of operation, employees, and the types of businesses that have occurred over time. Also, the whole issue of the ten-year period; what that means and that the Board needs to make a finding on that. If it doesn't meet the ten-year non -conforming provision, then we look at the twenty-year issue. Again, if the Board finds that there is a non -conforming use there, it is helpful for staff as well as others to have some parameters around what this use is. Laurie Craghead said that the statement that if it doesn't meet the ten-year requirement is not entirely accurate. It could mean that you have what is called a ten-year rebuttable presumption. This means that if the applicant turns in enough evidence to show that it has been in business for ten years under these circumstances, you've got a rebuttable presumption. If no one else turns in any other evidence in, you can go with that. What rebuttable presumption means, then, is that if you have other evidence in the record, you have to go past the ten years to between ten and twenty years. The maximum you can look back is twenty years. You do have evidence in the file that there are possible gaps of time, and possible abandoments of certain aspects of the business that go past those ten years. Therefore, there is some of that ten-year presumption rebutted in the record. That's why the entire twenty years is being considered. She stated that the Board needs to address whether there has been a continuous business for the past twenty years, such that it would be a legal, non- conforming use. The Board would then need to make a decision on the nature and extent of that; what kind of business was it, and what portion might have been abandoned over the last twenty years, and whether it was abandoned for a year or more. The Board has to consider the hours of operation, days of operation, the number of employees, the kind of equipment is allowed on the property, and what area of the property was used. Commissioner Luke explained that this was a tough one. He said he's been here since 1973, but land use has evolved. There was no building department here at all at that time. It has evolved into a very good department, but the records not complete. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 11 of 19 Pages He added that to try to put today's standards on somebody from 1980 or so is difficult. In the early 1980's, the area was trying to attract business. There were no jobs; there was an out -migration occurring. He said it is difficult for him to take today's standards and go back twenty years. It's entirely different. At this time, Commissioner Luke read a statement into the record. (A copy is attached as Exhibit D.) Laurie Craghead asked how much equipment should be stored. She suggested that the storage of equipment be based on Don Fowler's use of the property as shown in the matrix provided by staff. Any further intensity would be an abandonment of the site. Commissioner Luke explained that is amazing to him that the applicant's attorney had to assure the applicant that the Board was doing them a favor by delaying its decision. Land use is supposed to have some finality to it. Cathy White said that what is in the record is the site plan submitted with the 1991 landscape management. It doesn't give the size, but does show a fenced area around the commercial portion. She stated she does not know the exact acreage and didn't know if GIS could provide it. Commissioner Daly stated that the area that has been used commercially over the years is pretty well defined. He said part of the issue is additional equipment. Ms. Craghead stated that it is in the matrix provided by staff. Commissioner DeWolf agreed with what Commissioner Luke has said. The equipment used by Don Fowler would be the standard. Laurie Craghead said that no further site visits can be allowed, and a decision on the size of the property needs to be based on the photos, maps and aerials now in the record. She added that the Hearings Officer found a gap in the time frame, from 1988 to 1989. Commissioner Luke stated that he doesn't want to say the Hearings Officer and staff are wrong; he is just interpreting it differently and is looking at a different level of proof. He said he doesn't see the gap in use. Commissioner Daly agreed with this observation. Commissioner DeWolf also said he found these finding appropriate. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 12 of 19 Pages Commissioner Luke suggested that the decision be delayed until next week, to allow the Board to determine the size of the commercially used portion of the property. Final deliberations on this decision will take place at the Wednesday, May S Board meeting. 9. Before the Board was Consideration of Signature of Document No. 2004- 133, Extending the Deadline for Closing on the Transfer of Property in the Newberry Neighborhood, and Clarifying County Responsibilities for Sewer and Water Connections. DEWOLF: Move approval. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 10. Before the Board was Consideration of Signature of Document No. 2004- 008, an Intergovernmental Agreement between Deschutes County and La Pine Water District regarding the Construction of a Water Line. Laurie Craghead said that this is the intergovernmental agreement wherein the County jumps onto the Water District's bidding process, using federal grant money. This is a cheaper process for the County. There are a few minor details to address, so she suggested the Board approve the document, subject to legal review. LUKE: Move approval, subject to legal review. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 13 of 19 Pages 11. Before the Board was Consideration of Approval of a Deed Transferring Title to a Newly Partitioned Parcel to the Humane Society of Central Oregon/SPCA. Laurie Craghead asked that this be delayed for a week while some details are being worked out. 12. Before the Board was Consideration of Signature of Resolution No. 2004- 034, Declaring the County's Intent to Reimburse Expenditures with the Proceeds of Future Tax -Exempt Obligations. Susan Ross said that this allows the County to make expenditures, and they would be repaid when bonds are issued. DEWOLF: Move approval. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 13. Before the Board was Consideration of Signature of Document No. 2004- 167, the 9-1-1 Backup Center Lease between Deschutes County 9-1-1 Service District and Deschutes County Rural Fire Protection District No. 2. Mark Amberg stated that he is working on the wording of the document. LUKE: Move approval, subject to legal review and attachment of the appropriate exhibits. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 14 of 19 Pages 14. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $15,617.38 (two weeks). LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 15. Before the Board was Consideration of Review and Approval of 9-1-1 County Service District Weekly Vouchers without County Administrator Signature for the Weeks of April 26 and May 3. LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 16. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $2,541.89 (two weeks). LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 17. Before the Board was Consideration of Review and Approval of Extension/4-11 County Service District Weekly Vouchers without County Administrator Signature for the Weeks of April 26 and May 3. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 15 of 19 Pages LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 18. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $2,412,837.34 (two weeks). LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 19. Before the Board was Consideration of Review and Approval of the County's Weekly Vouchers without County Administrator Signature for the Weeks of April 26 and May 3. LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. 20. ADDITIONS TO THE AGENDA Before the Board was Consideration of Signature of Order No. 2004-038, Authorizing the Board Chair to Sign Appointment of Successor Trustee. LUKE: Move approval. DEWOLF: Second. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 16 of 19 Pages VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. B. Before the Board was Consideration of the Purchase of Property located off Poe Sholes Road. Ms. Ross explained that the County previously optioned on this property, and the option expires in May. A decision as to whether to purchase this property needs to be made. DEWOLF: Move approval. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes no. (Split vote.) C. Before the Board was a Discussion of a Future State Building Project. Susan Ross stated that the State has gone out for proposals for another building to house several departments. Bill Smith approached the County about partnering on this project as well. Mary Campbell, who works for Mr. Smith, said that the State Employment Division put out a mini -request for proposals for a 22,000 square foot building. It may be possible for them to use existing buildings; however, the feeling is that they may not be able to find what they need. They initially had asked Bill Smith to submit a proposal. The building would also house Central Oregon Intergovernmental Council. All is known is the desired square footage. However, if the State needs a new building, they prefer to place it closer to the existing State offices in the downtown area. Mr. Smith would like to know if the Board would like him to submit the County as a site only. Susan Ross added that the initial submittal would be for just the site. Then a decision can be made as to whether to respond to the full proposal. The site is the location where the old Deschutes Services Building now stands, or somewhere in the general area if parking is rearranged. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 17 of 19 Pages Commissioner DeWolf stated that he sees some real advantages to this, but is also a bit overwhelmed by all of the projects now going on. It's an advantage to have a firm tenant, as the cost of the building would be covered by the lease, and ultimately the County would have a paid -for building. Twenty years from now the County would have a free and clear building to use. Ms. Ross suggested that she recommends the County initially submit the site; the State may choose it or not. They could find an existing facility. Also, Bill Smith is submitting at least one site in the Old Mill District on his own. Commissioner Luke stated that the County went into the other building quickly. The budget was worked out, but the County had to decide without full data. It fortunately worked out very well for the County, State and local citizens. He added that if this were a request to submit a full building proposal at this time, he would not support it. Construction of the exiting facility needs to be completed, and the budgetary impacts of all of the recent changes need to be examined. Commissioner DeWolf observed that it will likely take four to six weeks for the State to come back to the County if they want to work with the County again. During that time, an update of where the County is and where it's headed can be developed to enable the Board to make a more informed decision. Commissioner Luke stated that sometimes the County is accused of competing with the private sector. Commissioner DeWolf replied that everyone says the government should act like a business, until they do. Commissioner Daly observed that this is a good opportunity for government to use low bond rates and increase its building capacity for the future. He added that these low rates may never been seen again, and the County should take advantage of the low rates while it can. DEWOLF: Move that a submittal be made for the site only at this time. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes DALY: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 18 of 19 Pages Being no further items brought before the Board, the meeting adjourned at 11:20 a.m. DATED this 28th Day of April 2004 for the Deschutes County Board of Commissioners. ATTEST: (k"u �16� Recording Secretary ennis R. Luke, Commissioner Tom DeWolf, Comr5Qoner Attachment Exhibit A: Sign -in sheet Exhibit B: Copy of Notice of Decision — Knott Landfill North Development Area Exhibit C: Informational flyer regarding the "Volunteer of the Year" event Exhibit D: Statement provided by Commissioner Luke regarding the Fleming land use appeal Minutes of Board of Commissioners' Meeting Wednesday, April 28, 2004 Page 19 of 19 Pages H H y.. C Q N N 2 L 21 O •� � N d co N 'L Q � 0 � _ v L 0 0 a (Y) a °� t y r CL N� 7� C S L O C --D .0 a H Z Exhibit �J Page 1 of � Q I =� Community Development Department Planhiny Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend.Oregon 97701-1925 (541)388-6575. FAX -(541)365-1764. http://www.co.deschutes..or.us/cdd/ NOTICE OF DECISION KNOTT LANDFILL'S.NORTH DEVELOPMENT AREA As an owner within the notification area or interested'party, this is to inform you that the Deschutes County Planning Division sends this notice of a decision issued by the Hearings Officer on the following land use applications described below: FILE NUMBERS: CU -02-102 and SP -02-51 LOCATION: APPLICANT/ OWNER: AGENT: SUBJECT: STAFF CONTACT: The property is located at 61150 27th Street, Bend and identified on the Deschutes County Assessor's Map as tax lot 18-12-14-100. Deschutes County Department of Solid Waste Timm Schimke, Director 61000 SE 27th Bend, Oregon 97702 Karen Swirsky David Evans and Associates, Inc. 709 NW Wall Street, Suite 102 Bend, Oregon 97701 The Deschutes County Hearings Officer approved a Conditional Use Permit and Site Plan Review to relocate existing landfill -related facilities at the Knott Landfill to the County's North Development Area located north and adjacent to the landfill in the EFU-TRB zone. Proposed facilities on the 70 -acre site include: a public receiving station/materials recovery facility, a public recycling drop- off center, an administration. office/maintenancebuilding, a household hazardous waste . facility, composting operations, two leachate evaporation .ponds, a material stockpile area, and a future landfill gas cogeneration. facility. Catharine White, Associate Planner, (541) 383-6719 APPLICABLE CRITERIA: The application was reviewed for compliance against the following criteria contained in Title 18, the Deschutes County Zoning Ordinance: Quality Senyices Performed with Pride Exhibit Page I of Chapter 18.16, Exclusive Farm Use Zone Sections: 18.16.031, 18.16.060, 18.16.070 Chapter 18.52, Surface Mining Zone Section: 18.52.030 Chapter 18.56, Surface Mining Impact Area Combining Zone Sections: 18.56.020, .050, .070 Chapter 18.128, Conditional Use Sections: 18.128.015, 18.128.120 Chapter 18.116, Supplementary Provisions Sections: 18.116.030, 18.116.031 Chapter 18.124, Site Plan Review Sections: 18.124.060, .070. This application was processed in accordance with the procedural requirements of Title 22 of the Deschutes County Code (DCC). DECISION: The Hearings Officer approved the conditional use permit and site plan review to relocate existing landfill -related facilities subject to 9 conditions of approval. The Hearings Officer's decision is attached to this notice. NOTICE OF DECISION: The Hearings Officer's decision was issued on January 17, 2003, and mailed to the applicant, agent, and those parties that commented in writing on the application or who testified at the November 19, 2002 public hearing on this matter. The decision became final on January 30, 2003_ OPPORTUNITY TO APPEAL: You have an opportunity to appeal the Hearings Officers decision to the Board of County Commissioners within twelve (12) days after the date mailed on this notice. To appeal, it is necessary to submit a Notice of Appeal, the . appeal fee of $2,139.63 and a statement raising any issue relied upon for appeal with sufficient specificity to afford the Board of County Commissioner an adequate opportunity to respond to and resolve each issue. A copy of the Hearings Officer's decision is attached. The Hearings Officer's decision, the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER. Attachment: Hearings Officer's Decision Dated this 20th day of April, 2004.' Mailed this 20"' day of April, 2004. 3xhibit 'age of 2-(� Q DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: CU -02-102 and SP -02-51 APPLICANT/ ,ly1��4�s76�T=�, iso OWNER: Deschutes County Department of Solid Waste ^ti's ✓ Timm Schimke, Director 61000 SE 27th Nei , ES �O Bend, Oregon 97702 %leCDON, / AGENT: Karen Swirsky S David Evans and Associates, Inc. g 709 NW Wall Street, Suite 102 6� Bend, Oregon 97701. _. REQUEST: The applicant is requesting a Conditional Use Permit and Site Plan Review to relocate existing landfill -related facilities at the. Knott Landfill to the County's North Development Area located north and adjacent to the landfill in the EFU-TRB zone. Proposed facilities on the 70 -acre site include: a public receiving station/materials recovery facility, a public recycling drop-off center, an administration office/maintenance building, a household hazardous waste facility, composting operations, two leachate evaporation ponds, a material stockpile area, and a future landfill gas cogeneration facility. STAFF CONTACT: Catharine Tilton, Associate Planner HEARING DATE: November 19, 2002 RECORD CLOSED: November 27, 2002 I. APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, the Zoning Ordinance A. Chapter 18.16, Exclusive Farm Use Zone * Section 18.16.031, Nonresidential conditional uses on nonhigh value farmland only. * Section 18.16.060, Dimensional standards. * Section 18.16.070, Yards B. Chapter 18.52, Surface Mining Zone * Section 18.52.030, Uses permitted outright C. Chapter 18.56, Surface Mining Impact Area * Section 18.56.020, Location. Exhibit ?age 3 of • Section 18.56.050, Conditional uses permitted. * Section 18.56.070, Setbacks. D. Chapter 18.128, Conditional Use Section 18.128.015, General Standards governing conditional uses. Section 18.128.120, Landfill, solid waste disposal site. E. Chapter 18.116, Supplementary Provisions • Section 18.116.030, Off-street parking and loading. • Section 18.116.031, Bicycle parking. F. Chapter 18.124, Site Plan Review • Section 18.124.060, Approval criteria. • Section 18.124.070, Required minimum standards. II. BASIC FINDINGS: A. LOCATION: The property is identified as Tax Lot 100 on Deschutes County Assessor's Map 18-12-14. Per the Count Property Address Coordinator, the address for the new facility will be 61050 27 Street, Bend. B. LOT OF RECORD: The subject property is a legal lot of record via the issuance of numerous County land use, building, and septic permits on the property.. C. ZONING: The approximate 365 -acre tax lot has multiple zoning designations that fall within both the City and the County.' A portion of the subject tax lot located in the northwestern section of the property is within the City of Bend and zoned Public Facilities (PF) and comprises the County's Public Works facilities. The remaining portion of the property is located within the County and is zoned Exclusive Farm Use—Tumalo/Redmond/Bend (EFU-TRB) in the mid-section of the property—including the area of proposed use —and Surface Mining (SM) in the lower section. of the property—where current landfill activities occur. D. PROPOSAL: The applicant is proposing to relocate existing landfill -related facilities to the County's North Development Area located north of the existing landfill activities. Specifically, proposed facilities on the 70 -acre site include: a public receiving station/materials recovery facility, a public recycling drop-off center, an administration office/maintenance building, a household hazardous waste facility, composting operations, two leachate evaporation ponds, a material stockpile area, and a future landfill gas cogeneration facility. Access to the development site will be via a new entrance from 27"' Street, which will be shared with Central Electric Coop. and the Deschutes County Public Works Department who currently have separate access points to 27th Street. A portion of 27th Street will be realigned by the County and deceleration lanes will be provided. Water will be supplied by Avion Water Company and an on-site disposal system will ' County Assessor's data shows the subject tax lot 18-12-14-100 has three code splits. Two of the code splits have acreage assigned and when added together consists of 365.26 acres (319.70 + 45.56 acres). File: CU-02-102/SP-02-51 Page 2 of 19 exhibit T Page q_ of provide sewage disposal. Electrical power, telephone, and natural gas will also service the development. The applicant is requesting site plan approval for the general use areas of the conceptual site plan submitted with the application. Individual site plan applications will need to be applied for as the buildings and structures'come on line and parking, bicycle, and pedestrian requirements will be evaluated at that time. E. SITE DESCRIPTION: In the southern portion of the property zoned SM, is the existing Knott Landfill. In the northwestern portion of the property located in the City of Bend, the County has its Public Works facilities. The mid-section where the proposed development will occur is currently vacant and unirrigated. Surrounding land uses are a mixture of both public and private lands in various uses as described below. Zoning in the area is mixed with Urban Area Reserve west of 27h Street, EFU to the. north and east, and Surface Mining to the south. Specifically: To the north are two EFU-zoned tax lots owned by the State of Oregon. Both of these tax lots are vacant and unirrigated. The combined acreage for the two tax lots is 640 acres. East are several privately owned EFU-zoned parcels ranging from about 20 to 40 acres. None of these parcels are irrigated, according to County Assessor's records, and most of them are vacant except tax lots 18-12-13-801 and 18-12- 14-600, which have homes. South of the subject tax lot is Knott Landfill, which is zoned SM and south of the Landfill is Rickard Road. The Rose Pit surface mine is located south of Rickard Road along with privately owned EFU-zoned tax lots. West is 27'" Street and west of 27'" Street is UAR-10 zoned land including High Desert Middle School and a 30 -acre parcel owned by Bend Metro Parks and Recreation. F. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice of the public hearing to the following public agencies: Oregon Department of Environmental Quality; Deschutes County Road Department; Deschutes County Environmental Health; County Property Address Coordinator; Deschutes .County Building Division; Bend Fire Department; Watermaster—District 11; Arnold Irrigation District; PG&E Gas Transmission; Deschutes County Assessor; Avion Water Company; Cascade Natural Gas; County Transportation Planner; City of Bend Planning Department; Central Electric Coop; Division of State Lands; Bend Cable Communications; Qwest; and Oregon Health Division. The comments from these agencies, if any, are set forth in the Staff Report and incorporated by reference herein. G. PUBLIC COMMENTS: The Deschutes County Planning Division mailed notice of the public hearing to all property owners within 750 feet of the subject property. In addition the Public Hearing notice was published in the Bend Bulletin on File: CU-02-102/SP-02-51 Page 3 of 19 Exhibit Page _-�- of _� 4- October 20, 2002. The Planning Division did not receive any written public comments. The public hearing was held on November 19, 2002. One member of the public testified as a member of the Bend Trap Club in opposition to the proposal on the basis of previous negotiations with the County on a land exchange with the trap club. H. REVIEW PERIOD: The Planning Division deemed this application complete and accepted it for review on November 3, 2002. A public hearing was held on November 19, 2002. At the request of an opponent, the Hearings Officer left the record open until November 20, 2002, with the applicant having a 7 -day rebuttal period expiring on November 27, 2002. The 150 -day deadline within which the County has to issue a decision in this matter expires on April 2, 2003. III. CONCLUSIONARY FINDINGS: A. Chapter 18.16, Exclusive Farm Use (EFU) Zone Section 18.16.031. Nonresidential conditional uses on nonhigh value farmland only. The following uses may be allowed only on tracts in the Exclusive Farm Use Zones that constitute nonhigh value farmland subject to applicable provisions of the Comprehensive Plan and DCC 18.16.040 and other applicable sections of DCC Title 18. B. A site for the disposal of solid waste approved by the governing body of a city or County or both and for which a permit has been granted under ORS 459.245 by the Department of Environmental Quality together with equipment, facilities or buildings necessary for its operation. FINDING: This criterion requires findings that: a) the subject tract constitutes nonhigh value farmland; b) the proposal complies with the applicable provisions of the Comprehensive Plan, DCC 18.16.040 and other applicable sections of Title 18; c) the proposal is for the disposal of solid waste and/or equipment, facilities or buildings necessary for the operation of a solid waste disposal site; and d) a permit has been granted by the Department of Environmental Quality (DEQ). Each of these components is addressed in the findings below. a. Nonhigh value farmland: The subject 365 -acre parcel contains four soil mapping units: 27A, Clovkamp loamy sand; 38B, Deskamp-Gosney Complex; 58C, Gosney-Rock Outcrop-Deskamp complex; 157C, Wanoga-Fremkle-Rock outcrop complex. Only 27A is considered a high-value soil as defined in Section 18.04 and only if the tract of land is composed predominantly of this soil when irrigated. The record shows that unit 27A is neither the predominant soil - mapping unit on the property nor is it irrigated.2 Comments from the Arnold 2 Deschutes County Code, Section 18.04 defines "High-value farmland" as: File: CU-02-102/SP-02-51 Page 4 of 19 Exhibit (� Page (r of )-Lf_ Irrigation District confirm that the property has no water rights and as stated in the application and observed on a November 7, 2002, site visit by Staff, the property is not irrigated. b. Applicable provision of the Comprehensive Plan, Section 18.16.040, and other sections of Title 18: The goal for agricultural lands per Chapter 23.88 of the Comprehensive Plan is "to preserve and .maintain agricultural land:" in addition, the Comprehensive Plan recognizes that irrigation is a key component to successful commercial farming enterprises in Deschutes County. The subject property, and in particular the proposed development area, will be located on non -high value soils with no irrigation or water rights. Surrounding land uses to the north, south and west are not engaged in farm uses and to the east the several EFU-zoned 20- to 40 -acre parcels have no irrigation and are not receiving farm tax deferral, according to County Assessor's data. State law and the County's zoning code, while recognizing the importance of preserving and maintaining agricultural lands, also provides for public services, such as solid waste management. Chapter 23.68 of the Comprehensive Pian addresses "Public Facilities and Services." The goal of the public facilities and services sections is: To plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as framework for urban and rural development, and thereby a system or plan that coordinates the type, location and delivery of public facilities and services in a manner that best supports the existing and proposed land uses. In addition, specific policies in the. Comprehensive Plan listed for solid waste facilities includes: a. Existing solid waste sites should be protected and either expansion. areas or new sites found. The Solid Waste Mana4ement Plan shall serve as the major document for site determinations. b. In order to discourage open burning and to encourage recycling the County shall continue to offer a no -cost dump service and to consolidate dumping. "High-value farmland" means land in a tract composed predominantly of the following soils when they are irrigated. Agency loam {2A and 2B), Agency sandy loam (1A), Agency -Madras complex (3B), Buckbert sandy loam (23A), Clinefalls sandy loam (26A), Clovkamp loamy sand (27A and 28A), Deschutes sandy loam (31A, 31B and 32A), Deschutes-Houstake complex (33B), Deskamp loamy sand (36A and 36B), Deskamp sandy loam (37B), Era sandy loam (44B and 45A), Houstake sandy loam (65A, 66A and 67A), Iris silt loam (68A), Lafollette sandy loam (71A and 71B), Madras loam (87A and 87B), Madras sandy loam (86A and 86B), Plainview sandy loam (98A and 98B), Redmond sandy loam (104A), Tetherow sandy loam (150A and 150B) and Tumalo sandy loam (152A and 152B). File: CU-02-102/SP-02-51 Page 5 of 19 Exhibit Page of q The applicant's proposal to expand its facilities north of the existing landfill site not only is consistent with policy (a), it also protects the existing Knott Landfill site from potential incompatible uses through the development of this portion of the property with a use that is compatible with existing landfill activities. According to the applicant, relocating the facilities to the North Development Area "will allow use of the existing landfill for waste disposal, prolonging the life of Knott Landfill." The Hearings Officer agrees with Staff that expansion to the north of the site on property owned by. the County is a logical proposal consistent with these goals. The Hearings Officer further agrees with Staff that Section 18.16.040, "Limitations on conditional uses," is not applicable because the applicant's proposal does not include any of the uses listed in that section. C. Disposal of solid waste together with equipment, facilities or buildings necessary for its operation: The applicant proposes to relocate its existing recycling components and the existing administration/maintenance building north of the landfill site. Section 18.04 of the DCC defines solid waste as follows: "Solid waste" for the purposes of DCC Title 18, means all putrescib/e and nonputrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, wastepaper and cardboard, commercial, industrial, demolition and construction wastes, discarded home and industrial appliances, and other wastes; but the term does not include: A. Hazardous wastes as defined in ORS 466.005(7). B. Materials used for fertilizer or for other productive purposes or which are salvageable as such materials are used on land in agricultural operations and growing or harvesting of crops and the raising of animals. A portion of the waste stream entering the Knott Landfill is redistributed to the recycling operations at the landfill. The recycling component requires equipment, facilities, and buildings necessary for its operation, which is consistent with this code. In addition, the proposed administration/maintenance building is an integral function of the operations at the Knott Landfill. d. A permit has been granted by the Department of Environmental Quality (DEQ): The criterion specifically states "a site for the disposal of solid waste ... for which a permit has been granted." The applicant's response. to this criterion is as follows: As l understand the process, eventually DEQ will amend the existing Knott Landfill permit. What is needed before that will be an approved CUP from the County, a LUCS, an update to the 1996 Knott Landfill Site Development Plan, and a formal request (letter) from the County, not to mention a DEQ required notice of public hearing. File: CU-02-102/SP-02-51 Page 6 of 19 Exhibit 6 Page of .2 y- Furthermore, comments from DEQ on the application state: The Department of Environmental Quality is working with the County Solid Waste Department on permitting issues. This is an important improvement for the County Solid Waste program. The Department of Environmental Quality recommends approval. The record shows that a requirement that DEQ have already granted a permit for the use prior to the issuance of a conditional use permit would create an impossibility for the applicant, since the County's conditional use permit needs to be granted first before DEQ will issue a permit. The creation of an. impossibility could not have been the intent of the governing body when adopting this language. On a previous matter involving a conditional use permit to establish a campground (file number CU -01-3), where the applicant, Chelsea Trees, Inc., had failed to meet their burden of proof in demonstrating that the campground was licensed by the State, the Hearings Officer found: The Hearings Officer agrees with staff that this criterion is not met because the applicant did not either provide a license or any evidence that shows the applicant is reasonably assured a State license subject only to receiving county approval. In the present case, the applicants have demonstrated both that they cannot obtain: a DEQ permit until the County permit is issued and that they are reasonably assured of getting a DEQ permit upon approval of the County permit. Therefore, the Hearings Officer finds that this component of the criterion can be satisfied through. a condition of approval requiring the applicants to obtain a permit from DEQ and submit it to the County prior to the initiation of the use or issuance of a building permit, whichever occurs first. Section 18.16.060, Dimensional standards. E. Building height No building or structure shall be erected or enlarged to exceed 30 feet in height; except as allowed under DCC 18.120.040. FINDING: The applicant has not proposed a building height in excess of 30 feet. In addition, subsequent site plan applications and building plans will be reviewed for consistency with this criterion at the time they are submitted. Section 18.16.070, Yards. A. The front yard shall be 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector and 100 feet from a property line fronting on an arterial. B. Each side yard shall be a minimum of 25 feet, except that for nonfarm dwelling proposed on parcels or lots with side yards adjacent to a property currently employed in farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with rear yards File: CU-02-102/SP-02-51 Page 7 of 19 Exhibit 6 Page _� of a adjacent to a property currently employed in farm use, the rear yard shall be a minimum of 100 feet. FINDING: The site plan submitted with the application entitled, "Knott Landfill North Area" shows the proposal meets the required setbacks in the EFU zone. In addition, future site plan reviews will be subject to review of yard setbacks. B. CHAPTER 18.128, CONDITIONAL USE Section 18.128.015, General standards governing conditional uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter. A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: This requirement has several components addressed below: Site: Expansion and the relocation of facilities to an area north of the existing landfill is, as described by the applicant, "a systematic and logical extension of the landfill operation." The evidence in the record shows that the topography of the proposed development area is "gently rolling terrain" and suitable for the proposed use. Access is via 27th Street, which according to the applicant, is capable of handling the traffic generated by the use provided that improvements per the County Road Department are made and the issue of the road alignment and PGBE's gas line is resolved.. Design: The applicant submitted a conceptual site plan design of the expanded and relocated facilities. The conceptual design shows consideration and planning to specific uses by the public, by commercial enterprises, and by use of the site by solid waste landfill staff. For example, the public receiving station and materials recovery facility will permit the public to unload their vehicles onto a level pad resulting in removing the public from unloading their vehicles in close proximity to large operating equipment and reducing the amount of blowing litter. In addition, traffic routing and building configurations are designed to separate larger trucks and vehicles from the general public. Since the applicant is only seeking approval at this time on the conceptual design, future site plan reviews will assess specific design characteristics for each structure, building, or use. Operating Characteristics: According to the Burden of Proof, operational hours at the Knott Landfill are seven days a week year round (excluding holidays) and from 7:00 a.m. to 4:30 p.m. Prior to the hearing, PGE submitted comments indicating that the proposed access appeared to lie within the gas pipeline right of way and requested that any permanent access roads or structures be located outside of the right of way. At the public hearing, the applicant's engineer tested that he had met with PGE, obtained a legal description of the right of File: CU-02-102/SP-02-51 Page 8 of 19 Exhibit _6 Page /0 of ,;)-y way easement and represented that the applicant would agree to locate all permanent access roads and structures outside of the right of way. The Hearings Officer will require this as a condition of approval. With the resolution of the gas pipeline right of way and the opportunity to review subsequent site plan applications for specific buildings, structures and uses, the Hearings Officer agrees with Staff that the site is suitable for the relocation of the landfill activities. 2. Adequacy of transportation access to the site; and FINDING: A new entrance from 27'" Street will be provided to accommodate the proposed development. The application materials indicate that the new entrance will serve the development proposal and that it will also be shared by trucks serving Central Electric Coop. and the CounJ Public Works Department, thereby, consolidating multiple entrances from 27 Street into one. In addition, the applicant had a traffic impact analysis conducted for the project in March 2001, which is included in the Burden of Proof. The study identified that the project will add approximately 27 to 30 trips to the street system during an average PM peak hour over the next 20 years. The landfill will generate one additional truck in 2006 during the PM peak hour, and in 2020 will generate 5 additional trucks with landfill expansion, and 10 additional trucks as a transfer station. In addition, the SE 27th Street site access will continue to meet the operating standard in the 20 -year forecast. Landfill - generated traffic at this location comprises 20% of the total traffic during the peak generation hour (11:45 am to 12:45 pm), and 8% of the total traffic during the PM peak hour. A review of the accident data near the SE 27th Street site access from 1997 to 2000 indicates there are no safety issues with entering and exiting traffic from Knott Landfill. The study concludes that no improvements will be needed to address the impacts from the proposed project. "The proposed project will have a minimal effect on the roadway operating conditions in the 20 -year forecast ..." Based on the above analysis, Hearings Officer finds that traffic generated by the proposed use will be minimal. In addition, with the implementation of recommended road improvements by the County Road Department to 27"' Street, the Hearings Ofhcer finds that access to the proposed development is suitable. 3. The natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. FINDING: Topography of the site is described by the applicant as "gently rolling terrain" with an area of lava ridges running north -south through the center of the site. Vegetation is typical of high desert areas and includes bunchgrasses, bitter brush, rabbitbrush, sagebrush, western juniper, and several ponderosa pines. Other than fire, staff is unaware of any potential "natural hazards" on the site. The record shows that the subject property is located within the Bend Fire Protection District and comments from the Bend Fire Department identify several requirements for the applicant to carryout. The Hearings Officer will require compliance with the Bend Fire Department. requirements as a condition of File: CU-02-102/SP-02-51 Page 9 of 19 Exhibit Page / ( of ;- approval. Based on the above, the Hearings Officer agrees with Staff that the natural and physical features of the site are suitable for the proposed use. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in (A) above. FINDING: Surrounding land uses include the vacant State land to the north, the existing Knott Landfill to the south, the Central Electric Coop station and 27"' Street to the west with High Desert Middle School west of 27th Street. In addition the subject property also contains the County's existing Public Works Department located in the northwest comer of the property and a portion of the existing Knott Landfill to. the south. East of the subject parcel are privately owned parcels ranging from 20- to 40 -acres, unirrigated, with a mixture of vacant and rural residential development. The proposed relocation of landfill facilities will be compatible with existing public works functions as well as the Central Electric Coop station as these uses are similar industrial/utility-types of uses servicing the public. Neither the Public Works Department nor the Central Electric Coop. objected to the proposal. In addition, regarding the private lands to the east, the Burden of Proof contains an October 4, 2002, memorandum from the applicant, Timm Schimke, to the agent, Karen Swirsky, that states the applicant held a meeting to discuss the proposed landfill on September 16, 2002 with neighboring residences. Out of 45 residences that were notified of this meeting, "only two couples" attended the meeting. While no "negative comments" were received, the couples did question the applicant about odor and dust and felt "that the proposed project would bring some improvements or benefits such as less litter, and improved[sic] aesthetics." No written comments were received on the application and one person testified in opposition at the hearing on the basis of previous negotiations for a land exchange with the County. The Hearings Officer finds that the evidence in the record demonstrates the applicant has designed the proposal to minimize impacts of noise, dust, and odor on adjacent properties, including the State lands to the north, through site location of specific operations and methods of collecting and processing the waste. For example, the siting of the composting operations in the south -middle portion of the proposed development area is away from neighboring parcels and, thereby, minimizes the potential impacts of dust and odor on nearby residences. Blowing litter also will be controlled through the design of the public receiving station as well as the erection of a security fence around the perimeter of the development. Visual impacts will be mitigated through the establishment of landscaped material at the east and west borders of the development as shown on a colored draft conceptual site plan. In addition, the area of development is a portion of the 365 -acre parcel and will be located about one-half mile from the nearest residence and about one-quarter mile from the State land to the north. Locating the expansion area away from the private residential parcels to the east and State land to the north assists in buffering the landfill use from these lands. File: CU-02-102/SP-02-51 Page 10 of 19 Exhibit d Page / of 2-V— At the hearing, Mike Greening tested in opposition to the proposal as a member of the Bend Trap Club. According to Mr. Greening, the Bend Trap Club had previous negotiations with the County for a land exchange involving the subject property and related to a proposed realignment of American Way and Brosterhous roads. At Mr. Greening's request, the Hearings Officer left the record open after the hearing to allow him to submit additional evidence on this issue. On November 20, 2002, Mr. Greening submitted a letter and documentation of previous negotiations between the trap club and the County regarding the proposed realignment and exchange. In response, Timm Schimke on behalf of the applicant testified at the hearing that an agreement for a land exchange was discussed as a part of the proposed realignment process but never formalized. He further tested that the realignment area is now within the jurisdiction of the City and the County is no longer planning to complete the realignment. However, he added that there is still an additional 70 acres to the north of the proposed expansion area which are vacant and possibly available to the trap club. To rebut the evidence submitted by Mr. Greening after the hearing, Mr. Schimke submitted a letter acknowledging the previous negotiations but reiterating. that an agreement was never finalized on the realignment or exchange. In that letter, Mr. Schimke indicates that he has researched the County records and has found no evidence of any agreement between the county and the trap club fora land exchange. Attached to Mr. Schimke's letter is Resolution No. 98-071 transferring jurisdiction and responsibility for the relevant portion of Brosterhous Road to the City. The applicant's representative, Karen Swirsky, also submitted rebuttal argument that the trap club is not an allowed use on the property, which is zoned EFU. The Hearings Officer finds that, while there is evidence of some previous negotiations, there is no evidence of a legally enforceable agreement for a land exchange between the County and the Bend Trap Club involving the subject property. Based on the above, the Hearings Officer agrees with Staff that the proposed use is compatible with the existing and projected uses on surrounding properties. Section 18.128.120, Landfill solid waste disposal site. The Planning Director or Hearings Body may authorize a landfill or other solid waste disposal site as a conditional use, subject to the following standards: A. The proposed site shall not create a fire hazard, litter, insect or rodent nuisance, or air or water pollution in the area. B. The proposed site shall be located in or as near as possible to the area being served. C. The proposed site shall be located at least one-quarter mile from any existing dwelling, home or public road (except the access road). D. The proposed site shall be provided with a maintained all-weather access road. E. Applications for a conditional use permit to establish a commercial composting facility under this category shall also meet the following criteria: File: CU-02-102/SP-02-51 Page 11 of 19 Exhibit 6 Page _j�3 of ) c� 1. The proposed facility shall be effectively screened from adjacent residential uses and scenic roadways. The proposed facility may use existing topography and trees and/or introduced landscaped material. 2. The proposed facility shall employ practices of material handling and processing that prevent noise and odors from impacting residences at least one-quarter mile from the site. 3. The proposed facility shall employ practices of material handling and processing that control debris and dust and ensure material is contained on site. FINDING: The Hearings Officer agrees with Staff that the specific conditional use criteria A through D, apply to a new proposal for a solid waste disposal site and not to the proposed relocation of the existing landfill related facilities herein. The EFU zone, Section 18.16.031, provides for the following use as a conditional use: B. A site for the disposal of solid waste approved by the governing body of a city or County or both and for which a permit has been granted under ORS 459.245 by the Department of Environmental Quality together with equipment, facilities or buildings necessary for its operation. [Emphasis added.] The Hearings Officer agrees with Staff that the scope of review for the subject proposal—which involves the relocation of existing recycling facilities and an administrative/maintenance building appurtenant to the existing landfill disposal site—is limited to the equipment, facilities or buildings necessary for the overall function of the solid waste landfill—that these uses in and of themselves do not constitute the establishment of a new landfill or solid waste disposal site as contemplated by the language of this criterion. The Staff Report indicates that the legislative history of this criterion dates back to the 1979 PL -15 County Zoning Ordinance. Article 4, Use Zones, Section 4.030, Exclusive Farm Use, EFU-40 allowed "landfills" as a conditional use and established specific use standards that are the same today, with the exception of subsection (E) above regarding composting, which was added in 2001. Baric in 1979, recycling was not contemplated as a use associated with landfills. This is demonstrated later by the creation of the surface mining zone in 1988 that specifically distinguishes between a "Land Disposal Site" (which is a use permitted outright in the SM zone) and a "Disposal Site" (which requires a Conditional Use permit in the SM zone) where each of these uses are defined in Section 18.040 as follows: "Land disposal site" means a disposal site and related facilities at which the method of disposing solid waste is by landfill. File: CU-02-102/SP-02-51 Page 12 of 19 Exhibit e Page / q of "Disposal site" means land facilities used for disposal, handling or transfer of or resource recovery of solid wastes. Based on the above, the Hearings Officer finds that the spec conditional use criteria in subsections A through D above do not apply to the present proposal to relocate the existing recycling and administrative/maintenance facilities. With regard to subsection E, the present proposal and site plan include a 5 -acre compost processing area near the south-central development area. According to the application materials, the composting area will be used to process green waste and wood waste. Ground wood waste will be loaded onto trucks and hauled off-site to be used as hog fuel. The actual composting of the green waste will take place in an area west of the compost processing area and is designated as Compost Windrows on the conceptual site plan. In this area, compost is watered, turned and screened prior to marketing. Subsection E specifically applies to "commercial composting" facilities and the County's ordinance does not define it. However, the ordinance does define "commercial" as follows: "Commercial use" means the use of land primarily for the retail sale of products or services, including offices. It does not include factories, warehouses, freight terminals or wholesale distribution centers. While the applicant indicates that some portions of the compost material may eventually be sold, the record shows that the primary use of the subject property is for the disposal, handling, or transfer of or resource recovery of solid wastes and not for the sale of products or services. Based on the above analysis, the Hearings Officer agrees with Staff that the proposal does not constitute a commercial composting facility as that term is used in Subsection E above. Accordingly, the requirements at subsection E(1) through (3) are not applicable to the present proposal. C. CHAPTER 18.124, SITE PLAN REVIEW Section 18.124.060. Site plan approval criteria. Approval of a site plan shall be based on the following criteria: A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: The proposed project will be contiguous to the existing landfill to the south and will be fenced and landscaped similar to the existing landfill for safety, security, appearance, and control of blowing debris. A portion of the natural environment on the parcel will be disturbed to accommodate the proposed use; File: CU-02-102/SP-02-51 Page 13 of 19 Exhibit 8 Page of however, the development area contains no significant natural features. Views will be preserved as building heights will not exceed the 30 feet height restriction in the EFU zone. The proposal meets this criterion. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDING: Existing juniper and ponderosa pine trees will be preserved to the extent possible. However, the applicant states "the nature of the facility will most likely result in the removal of most existing vegetation" with minimal grading required. The proposal includes landscaping within and around the development. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: The proposed development will be enclosed by a 6 -foot chain link fence to provide security to the site and safety to the surrounding community. One entrance will be used for public access and will be controlled by a rolling gate. Further, design elements of the proposal account for public safety, including public drop-off areas, traffic circulation and design, location of administrative office/maintenance building away from intense landfill activities, and the use of landscaping to screen and separate various on-site uses. D. When appropriate, the site plan shall provide for the special needs of handicapped persons, such as ramps for wheelchairs and Braille signs. FINDING: The proposal includes an Administrative Office/maintenance building. The applicant states "all buildings in the North Development Area will be accessible." Further, the Deschutes County Building Safety Division will review the building plans for ADA compliance. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDING: Access to the development proposal will be from a new entrance on 27th Street, which will be consolidated into a shared access point with Central Electric Coop and the County Public Works Department. Comments from the Road Department recommend dedication and road improvements to 27th Street, including left and right tum lanes for the new entrance. Interior circulation patterns separate uses and as stated by the applicant, "this will provide a significant improvement over the existing facility, which can be confusing and create conflicts between trucks and private vehicles." Parking related to specific buildings, such as the Administrative Office/maintenance building, will be reviewed with future site plan submittals. File: CU-02-102/SP-02-51 Page 14 of 19 Exhibit J Page / of F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets or surface and subsurface water quality. FINDING: In addressing this criterion, the applicant provided the following: Because of the current EPA/DEQ Underground Injection Control requirements, drywells will be used infrequently and most likely for only roof drainage, which is rule -authorized." Because this is an industrial site, the MRF [Materials Recovery Facility] and the HHW [Household Hazardous Waste Facility] sites will be self- contained with wash -down water and rainfall runoff (minimized) conveyed to the leachate ponds or similar leachate disposal process. Other storm water runoff will likely be treated by bioswales, filters, or conveyed to ponds designed for storm water detention, evaporation, and infiltration. It is anticipated that on-site stormwater runoff will remain on-site. Comments from the Department of Environmental Quality indicate the applicant is working with DEQ on "permitting issues." DEQ is the appropriate agency to review and ensure compliance with state and federal laws relative to drainage systems. The Staff Report noted that the leachate evaporation ponds "may also be used to collect and evaporate stormwater thereby eliminating the need. for dry wells." To ensure compliance with this criterion, the Hearings Officer will require, as a condition of approval, that the applicant submit a copy of the DEQ permit prior to initiation of use or issuance of a building permit, whichever occurs first. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: The site plan submitted with the application shows a parking area near the administrative/maintenance building. The Staff Report indicates that the maintenance building will store large heavy machinery and equipment. Future site plan applications for individual buildings will afford an opportunity to address this criterion relative to the specific uses requested. The applicant, however, states that the proposed development area will be surrounded by a screened fence to restrict access, contain blowing trash, and limit visual impacts. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDING: According to the Burden of Proof, electrical power is anticipated to be supplied to the public receiving station/materials recovery facility and will be installed underground. In addition, Avion Water Company has recently constructed a 12 -inch diameter water line on the south boundary of the north File: CU-02-102/SP-02-51 Page 15 of 19 Exhibit g Page t —i of area. This water line will be tapped to provide a fire supression system for the site as well as a domestic water system. Sanitary wastes will be processed by an on-site disposal system similar to the system existing at the landfill today. Telephone and other communication needs will be linked to most facilities shown on the proposed site plan. Natural gas will be used wherever possible to heat appropriate facilities on-site. 1. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.) FINDING: The proposal meet this criterion because the site plan and the narrative show the proposal meets this required use and development standards of the EFU zone. J. All exterior lighting shall be shielded so that direct light does not project off-site. FINDING: The applicant anticipates that site lighting will occur only in the vicinity of the structures during operating hours, primarily during the winter months. In. addition, the applicant may add lighting at the entrance of the landfill. To assure compliance with this criterion, the Hearings Officer will require, as a condition of approval, that site lighting occur only in the vicinity of the structures and only during operating hours. D. CHAPTER 18.116 SUPPLEMENTARY PROVISIONS Section 18.116.030. Off Street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by this title. Section 18.116.031, Bicycle parking. New development and any construction, renovation or alteration of an existing use requiring a site plan review under this title for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of this section. FINDING: The applicant is seeking approval of its conceptual site plan at this time and intends to submit separate site plans for future buildings and structures as they come on line. Off-street parking and bicycle parking will be reviewed at the time the new site plans are submitted to the Department. However, the Staff Report notes that ample space is available to provide required parking. File: CU-02-102/SP-02-51 Page 16 of 19 Exhibit I� Page 19 of �4 E. CHAPTER 18.56 SURFACE MINING IMPACT AREA COMBINING ZONE (SMIA): Section 18.56.070, Setbacks: The setbacks shall be the same as those prescribed in the underlying zone, except as follows: A. No noise -sensitive or dust -sensitive use or structure established or constructed after the designation of the SM/A zone shall be located within 250 feet of any surface mining zone, except as provided in section 18.56.140; and B. No noise -sensitive or dust -sensitive use or structure established or constructed after the designation of the SM1A zone shall be located within one-quarter mile of any existing or proposed surface mining processing or storage site, unless the applicant demonstrates that the proposed use will not prevent the adjacent surface mining operation from. meeting the setbacks, standards and conditions set forth in sections 18.52.090, 1&52. 110 and 18.52.140, respectively. FINDING: The subject property is located within one-half mile of surface mining Site number 390 to the south, which currently is being operated as Knott Landfill. The proposal does not contain a noise- or dust -sensitive use as defined in Section 18.04 of the Deschutes County code: "Dust -sensitive use" means real property normally used as a residence, school, church, hospital or similar use. Property used in industrial or agricultural activities is not "dust -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses such as garages and workshops do not constitute dust -sensitive uses. "Noise -sensitive use" means real property normally used for sleeping or normally used as schools, churches, hospitals or public libraries. Property used in industrial or agricultural activities is not "noise -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses such as garages or workshops do not constitute noise -sensitive uses. The Hearings Officer agrees with Staff that based on the above definitions, the proposed administration/maintenance building does not qualify as a noise- or dust -sensitive use. The structure does not conform to those types of uses listed in the definitions and is similar to an industrial -type of use, which is excluded from the definition. File: CU-02-102/SP-02-51 Page 17 of 19 Exhibit 6 Page ig of 01 IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's conditional use permit and site plan review to relocate existing landfill -related facilities, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. The applicant shall submit a revised site plan showing the road access alignment outside of the PGE right of way prior to the initiation of use or issuance of a building permit, whichever comes first. 2. This approval is based upon the approved site plan (as revised pursuant to Condition 1 above) and information submitted by the applicant. Any substantial change in the approved plan will require a new application. 3. Approval of the site plan is limited to the conceptual site plan identified at Exhibit 2, "Site Plan," and entitled "Conceptual Site Layout" dated June 14, 2002 (as revised pursuant to Condition 1 above). The applicant shall submit additional site plan applications for future uses, structures, and buildings approved under the conceptual site plan. 4. The applicant shall meet all requirements of the Bend Fire Department for fire protection on the site. 5. Prior to the initiation of use or issuance of a building permit, whichever comes first, the applicant shall meet the following conditions: a. SE 270' Street, where it is adjacent to the property, shall be improved to the standards set forth in Table A of Chapter 17.48 for a Minor Arterial located in the rural Deschutes County. . b. Additional right-of-way shall be dedicated for SE 27th Street, to bring the total to 40 feet east of the centerline. c. Left and right turn lanes shall be constructed on SE 27th Street for the new entrance to the site. d. The applicant shall construct all improvements under the inspection and approval of the Deschutes County Road Department Director. The Director may accept certification of improvements by a professional engineer consistent with ORS 92.097. e. The surveyor or engineer shall submit information showing the location of the existing road in relationship to the road right-of-way, on behalf of the applicant, to the County Road Department. This information can be submitted on a worksheet. All existing road facilities and new road improvements are to be located within the existing or to be dedicated right-of-way. File: CU-02-102/SP-02-51 Page 18 of 19 Exhibit 6 Page ;;o of 2 f. Road improvement plans prepare by a Registered Professional Engineer shall be approved by the County Road Department prior to commencement of construction. (DCC 17.48.060). 6. The applicant shall obtain a permit for the facility from 'DEQ and submit it to the County prior to the initiation of the use or the issuance, of a building permit, whichever occurs first. 7.. The applicant shall obtain a septic site evaluation from the Deschutes County Environmental Health Division prior to the issuance of a building. permit. 8. Construction plans shall conform to 1997 UBC design requirements. 9. All exterior lighting shall be shielded so that direct light does not project off-site. All exterior lighting shall be located in the vicinity of structures only. and shall be illuminated only during operating hours. �JJ<— Dated this / day of January, 2003. fr Mailed: this y of January, 2003. M. b6wis, Hebrings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. File: CU-02-102/SP-02-51 Page 19 of 19 Exhibit A Page ! o`f i �U Exhibit 6 Page of —�aq N 0. do • I I I Y r I WW I �n j • -----•-�-- -- --- ----------- I �- w ' p �i • I � lra�.� • i vs r ow ...e. `�,Z,r ,w�kC% S '!n• ;.+9':. !r;� _. �`� T�-nT}+;:�,:. . r,�� ��?�vv- ia� "'`.].y.',' � c-+T� :yY •' :YL •fir` � :92, ,&..s`r ,.x+;tNc• �,','�'h �`i'�'i���EG. 'tix.•� `.yy�'�,�y.. [�. '+,�•+e . w..�: c•.' a [� � •. �' Exhibit Page of Exhibit 0 Page of NetworkOf Volunteer Administrators n ,presents tkeir I � #b'b Annual .f 4t Pagevl i of It is clear to me from the evidence in the record and from the de novo testimony that a business has been operating out of this site for over twenty years. Where it becomes cloudy is trying to figure out if there was ever a gap of over 365 days when a business was not in operation on the property. There are neighbors who wrote letters that say the businesses were not continuous. There are other neighbors that wrote letters and appeared in person that say that the business were continuous. While the record is not crystal clear on this matter, I have not seen any hard evidence that they were not continuous. We have two statements from J. C. Compton concerning their use of the shop. The unsigned one says they did not use the shop. The one signed and dated on December 24, 2002 states that they did use the shop. I have chosen to go with the signed and dated one because it is difficult to determine who authorized the other statement by the company. The owner through their attorney acknowledges that the trailer is a replacement that appears to have been done without a permit. As such I believe it needs to be considered separately from the shop and business that have occupied the property. I find that the shop is an existing non -conforming use for the following; 1. Use by contractors in the road construction field. 2. Orderly storage of equipment and materials used in the construction business. Including snow plowing, road construction, and road maintenance. 3. Repair and maintenance on site of equipment that is used by the contractor in the course of their business. 4. I find that the original of Joe Levesque of 7 am to 5 pm for six days a week to be the controlling hours of operation for the construction business. 5. I find that the 8 employees used by Don Fowler to be the total number of employees allowed at the site. I find that all higher numbers of employees was abandoned for more than a year. 6. Except for what is stated above, this site is a staging area for the contractor and all construction activity will occur off site. I need some additional input from staff on the amount of land should be included in this finding. I find that the trailer is a replacement trailer, does not have a building permit, and does not qualify for a non conforming use. I would be willing to allow the trailer to remain on site without being used while the owner makes further land use applications to the County. Such applications should be done in a timely manner and should not be used as a delaying actions to keep from moving the trailer. Dennis Luke April 28, 2004 Exhibit Page I of k _