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2004-1283-Minutes for Meeting September 15,2004 Recorded 10/12/2004COUNTY OFFICIAL TES NANCYUBLANKENSHIP, COUNTY CLERKDS COMMISSIONERS' JOURNAL 10/111004 03;41;30 PM 1111(1111111111111111111111111 2041283 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. �JKES C IgG `2-A { Deschutes County Board of Commissioners 1130 NW Harriman St., Bend, OR 97701-1947 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, SEPTEMBER 159 2004 Commissioners' Meeting Room - Administration Building - 1130 NW Harriman St., Bend The purpose of the hearing was to discuss an appeal of application CU -04-6 — the appeal of the June 6, 2004 Hearings Officer's decision regarding the dedication of Bull Springs Road to the public (applicant: Thomas). This appeal is being heard on the record only. Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; Catherine White and Kevin Harrison, Community Development; Anna Johnson, Commissioners' Officer; and eight other citizens. No representatives of the media were in attendance. The hearing began at 10:05 a.m., at which time Chair Daly read the preliminary statement (a copy is attached as Exhibit A). DALY: V. Pre -hearing contacts, bias, or conflicts of interest. A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations, bias or conflicts of interest to declare? If so, please state the nature and extent of those. COMMISSIONER DEWOLF: Help me out here, Laurie. I am a friend of one of the attorneys of the applicant. Also, when I ran for office I received a donation from Hap Taylor. LAURIE CRAGHEAD: Because of this, are you unable to make an unbiased decision or look at this case objectively? Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 1 of 47 Pages DEWOLF: No, I can. I've had no discussions with anyone on this issue outside of the hearings. COMMISSIONER DALY: I received contributions for my election from two of the parties, Matt Thomas and Hap Taylor & Sons. I didn't know they were involved in this until I reviewed the record. DEWOLF: If donations to elected officials meant that was a conflict of interest, no decisions could ever be made. That's the life of an elected official. We are expected to follow our beliefs one way or the other. DALY: These were only two contributions out of over one hundred. COMMISSIONER LUKE: I have had no contact with anyone on this since the last hearing. DALY: B. No written challenges for ex -parte contacts, bias, or conflicts of interest to any Commissioner's ability to hear this appeal were submitted prior to this hearing. Given, however, that it would be difficult for a party to know what ex -parte contacts, bias or conflicts of interest the Commissioners may or may not declare until these deliberations, parties w ho wish to submit a challenge on that basis may do so now. CRAGHEAD: In this case, this means only the existing parties; no new parties. No challenges were offered. LUKE: Staff sent us a memo about this issue, and the applicant could submit final written arguments if this were heard on the record. The final argument was delivered to us. Can we accept it? CRAGHEAD: That's a procedural item that you are to decide today, as to whether Code allows this. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 2 of 47 Pages LUKE: So we need to figure out if we can allow it into the record first. DALY: It's the first thing we need to talk about. Are there recommendations from staff on this issue? CATHY WHITE: We tried to frame this on page 2 of the memo. As Laurie explained, we don't typically have an on the record appeal; usually it is some kind of de novo. We can't enter new information into the record, according to specific procedures in the ordinance. The applicants have argued that another section does not limit their submittal of a rebuttal statement. LUKE: I can't remember any other that we have heard on the record. CRAGHEAD: It has been at least six years ago. LUKE: It is standard procedure, since the applicant has the burden of proof, that they should have an opportunity to respond to what has been brought in. I feel this is their right and they should have an opportunity to respond. Not new evidence, but there could be a legal reference or the interpretation of a legal reference. I'm surprised by this. DEWOLF: I think we need to clean up the language in the ordinance. Consistent with past practices, I think it should be allowed. CRAGHEAD: Code refers to 22.24, allowing final rebuttal. DEWOLF: I would fall on that. And the language of this should be cleaned up. LUKE: I want to direct staff to draft the appropriate language to clarify this issue. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 3 of 47 Pages DEWOLF: This would be specific to on the record hearings, which we don't usually have. WHITE: If the Board will allow rebuttal arguments, this will be the policy we follow until the Code is changed. CRAGHEAD: No motion is needed for this, as staff has direction. DEWOLF: Move to allow the rebuttal argument into the record, based on Deschutes County Code 22.32.030(b). LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. CRAGHEAD: This will be included as a part of the findings in your decision here today? COMMISSIONERS: Yes. DALY: Okay, the next issue. The Sisters Planning Forest Committee raises the following three appeal issues. (He then read from a document dated August 6, 2004 as submitted into the record by Paul Dewey; seepage 2, item #1. A copy is attached as Exhibit B). WHITE: Just to summarize what I put in the memo, the Sisters Forest Planning Committee who is opposing the Hearings Officer's approval believes — and maybe I should just take a minute and go to the map to refresh the Board's memory about this. CRAGHEAD: I just want to make a clarification. These are a summarization of the Sisters Forest Planning Committee's appeal issues. There are actually quite a few, but this is being boiled down to the three basic issues. DALY: These are the issues that we need to decide. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 4 of 47 Pages CRAGHEAD: These are the main issues, but there are other issues that you will need to decide as well. We'll go through those. WHITE: (Referring to oversized maps.) This orange here depicts the proposed road dedication. The yellow is the Sisters Mainline Road that goes north and south. LUKE: Originally the yellow would have gone all of the way through. WHITE: Sisters Mainline Road goes all of the way through, it goes through the blue and connects with the orange up through the yellow and continues on. The Board in the Thomas partition required the applicants to dedicate Bull Springs Road, which goes like that and connects up to the Sisters Mainline Road. DALY: Where is the pit? WHITE: The surface mining pit is this forty -acre piece right here. DALY: And the blue area, that's the road that they got rid of because it went through the middle of the pit? WHITE: The blue is the existing Sisters Forest Mainline Road. Then there is a little arrow here that says "temporary road location" that goes around the pit. What the applicants are proposing is to dedicate this section in the orange. This is Bull Springs Road connecting or intersecting with Johnson Road. They also want to improve the intersection there. They've got two options. They want to make it safer for that intersection, the realignment of that intersection. At the intersection it is zoned rural residential 10, so there are different rules that apply to that. Then it goes into the F-1 forest use land. The applicants want to dedicate this section of Bull Springs Road. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 5 of 47 Pages Then there's this road called the Loop Road. It was recently built, about a year ago according to the record by Hap Taylor. They want to dedicate this section of the Loop Road. So there is going to be a piece here of Bull Springs Road that won't be dedicated. LUKE: They want to abandon the blue? WHITE: They want to abandon the blue, which is the U.S. Forest Service -Sisters Mainline Road. It would be rerouted around the Loop Road. And the Thomas' partition parcel is right here. So they've got the end of the dedication just going to the southern base. LUKE: Which is what we required, which created the flag lots up there. WHITE: You required the dedication of Bull Springs Road and the improvement of a section of the Forest Service Mainline Road. Wlh%m Just to get to that little piece of property at the bottom. WHITE: Yes. The applicants in their application also proposed two gates, as shown here in pink, north and south of the Sisters Mainline Road. This is not located on the public road dedication. It is located on private property where the U.S. Forest Service has their easement that goes across it. DEWOLF: During certain times of the year is currently open to the public, right? WHITE: The Tumalo deer winter range is a voluntary closure process with the Oregon Department of Fish and Wildlife. That closes off this roadway. LUKE: It's not a voluntary closure, because you can get a ticket if you're out there at the wrong time. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 6 of 47 Pages WHITE: I didn't quite understand that, because they say it is a voluntary closure with the participating landowners. DEWOLF: But that closure is for a certain portion of the year. Other times of the year the road is open for travel by the public. WHITE: My understanding is that the public can use the U.S. Forest Service -Sisters Mainline Road. I'm not clear about the authorization of that. CRAGHEAD: I believe it comes through the U.S. Forest Service permit that's part of their easement on that road, that the Forest Service is granting the public, has a right to grant the public access via the easements that they have. LUKE: They have the right to take it away. CRAGHEAD: Paul Dewey's — the Sisters Forest Planning Committee's — appeal brings up an issue of the fact that to do so they would have to go through the National Environmental Protection Act process, which requires coordination with all of the involved federal agencies and an environmental assessment. That's his argument as to whether it is actually feasible to do that kind of closure year-round. LUKE: They're talking about a year-round closure. CRAGHEAD: For that section, yes. DALY: If they didn't do it differently and just closed it three months of the year, would that affect this at all? CRAGHEAD: The Hearings Officer's decision was based upon there not being further traffic impacts or environmental impacts, or fire impacts and that sort of thing, because the traffic would be no more if those gates were in place. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 7 of 47 Pages DEWOLF: So by virtue of the gates, that's what is mitigating the increased traffic. So without the gates the traffic does increase, according to the Hearings Officer. CRAGHEAD: She did not find that it would increase because there was no traffic impact study done. LUKE: But it has the potential. CRAGHEAD: Yes. DEWOLF: With the gates there, there is no potential because there is no access. CRAGHEAD: That was her finding. DALY: So therefore they didn't need to do a traffic study. CRAGHEAD: She didn't specifically say they didn't need one, but found that there was substantial evidence in the record that because of those dates, the traffic impact would not be any more, even with the dedication to the public. That, and the signs that the applicants propose to put at the beginning of Bull Springs Road which would say "no public access to Forest Road". LUKE: If you go south from that gate, you're going down to Tumalo Falls, is that correct? WHITE: I haven't been south of there, but I am assuming it is the one that goes down there. DEWOLF: Skyliners Road and then out to Tumalo Falls. WHITE: This is at the part of Tweedfam's property. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 8 of 47 Pages LUKE: My question is, currently the public has throughout most of the year access from Tumalo Falls or Skyliners Road up through this area. Now, what will happen if they get on Skyliners and get on this road, they'll get to the gate and then are shut off, and can't go any farther north? CRAGHEAD: Correct. LUKE: They can't go out on another road and get around? DALY: They could come in Bull Springs. DEWOLF: No, they can't. There will be a gate north. CRAGHEAD: It's gated at the north and south. DALY: If they come in off Johnson Road — DEWOLF: In other words, from Johnson Road they cannot get to Skyliners Road using the road that they currently can use. DALY: But you can get into this area by coming in through Bull Springs. LUKE: Or most of the ground. WHITE: The Forest Service letter that was submitted with the application indicates that the public can gain access to the Forest Service Road by different routes. They don't identify them, but they are basically supportive of the gate. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 9 of 47 Pages DALY: I guess I'm a little confused. Apparently all of the dark green on that map that you have there is private land? WHITE: The very dark green is private. The light green is other ownership, which means not necessarily all federal land. It could be state land or other ownership. It's non - private lands. DALY: The gates are only shutting off access to private lands, right? LUKE: Between the two gates. The Forest Service is able to go across those private lands because of their easement, probably when the property was sold or maybe before. That's the only reason there is a Forest Service road there, because there are easements across private land. WHITE: That's my understanding, that the Forest Service does not own the property that they have their road on. It's actually an easement over private property. DALY: But the two gates on both ends, in between is private property. WHITE: Right. DALY: So the portion that is closed for the winter deer range is mostly private property? WHITE: I don't really know exactly how it works. It's my understanding from the ODF&W that it is a voluntary program with private landowners. I don't know the details of how that program works. LUKE: The outline in red there, what is it? WHITE: That's all three lots. The two flag lots and the big one. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 10 of 47 Pages LUKE: But you show that as being owned by the federal government. 1LTINSIT9 No. The dark green is private. DEWOLF: The light green is other ownership. So from this point out to Skyliners Road is publicly owned land. DALY: Apparently that must be part of the winter deer range, because I think I got my ticket just before I got there. WHITE: Yes, it is. There should be a map in the record. LUKE: So the question is, do they need a permit to build that road? CRAGHEAD: That is one of the questions, yes. The Hearings Officer found that permits are not needed because the road is a use allowed outright in the RR -10 portion, and felt that because these were primarily for purposes of forest use, that both the Loop Road and the Bull Springs Road were a use permitted outright in the Forest use. What the Board has to find, if you agree with the Hearings Officer that it is a use permitted outright when you convert it from a private forest use to a public use. LUKE: To a public dedication. But even though it is a public dedication, the log trucks and people who are practices forest practices on not only private land but public lands would be able to use this road. CRAGHEAD: As they would any public road. [all 1114 So dedicating to the public doesn't change the fact that there is still going to be forestry uses, or could be, off this road. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 11 of 47 Pages CRAGHEAD: But the issue is, do the additional uses being allowed since it is a public road, convert it from a permitted outright to a conditional use. Staff believes, and this is why the applicant filed a conditional use permit, that this was a conditional use because it would not be a use permitted outright. DEWOLF: It is no longer being used just for forest uses. CRAGHEAD: Right. However, the Hearings Officer found the opposite. She found that it was a use permitted outright. WHITE: Essentially the Hearings Officer doesn't make a distinction between the use of the road as a forest use road, which is a use permitted outright in her findings, and converting it to a public road. DEWOLF: It seems like we've got two road issues here, in my mind. And I don't know if this is true, but it is what I'm thinking. One is what you have just described. We've got a section of this road that is in existence, it's been there, allowed outright because of the forest use. That use is now being changed due to the dedication. So, either that is okay or it is not okay. That's one issue. The second road issue is that by putting gates on Sisters Mainline Road, you are changing that use from a public use into no longer being a public use because the gate, by definition, cuts off public access where there was public access before. That seems like a separate issue. I'm not making judgments here, but I'm asking if that is two separate road issues that we're dealing with here. CRAGHEAD: That's why we are only dealing with the first one right now. That's what kind of permit they should have gotten. DEWOLF: What I am getting at is whether these two road issues are distinct, or does a decision on one impact on how we look at the other? Or can we consider them completely distinct? Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 12 of 47 Pages CRAGHEAD: I think they are completely distinct. WHITE: I agree. LUKE: There's another distinction here that we haven't talked about. There was one near the Inn of the 7th Mountain where you go back in there on what I think is 1808. And there's a tree farm there. CRAGHEAD: That's new evidence in the record, if you are talking about something on another property. LUKE: Okay. I'm just pointing out that there are roads on private property that allow public access, but they are not required to. They in fact on some pieces of property they actually gate them every three or four or five years, just to make sure that there is no adverse possession. The only reason these roads are on this private property is because the Forest Service has an easement. The Forest Service, along with the private property owners, allows the public to access these roads and drive on them. The Forest Service could have gated these roads at any time, and only allowed those forest activities to take place on them. DEWOLF: I'm not sure that is true. LUKE: As well as access by the private parties. Because the Forest Service had the easement. The general public didn't have the easement. DEWOLF: But the Forest Service is the public, and I'm not sure that that's accurate. I'm not sure I'm convinced that the Forest Service can just put up a gate on a Forest Service road to stop access. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 13 of 47 Pages CRAGHEAD: That's Paul Dewey's argument, that in order to do that you'd have to go through a public process following the NEPA. Okay, let's go the next step. The private property owners could have gated the road at any time because it is their property, and the only person who has an easement is the U.S. Forest Service. CRAGHEAD: I don't think they could block the U.S. Forest Service easement without going through the NEPA process. DEWOLF: Bingo. DALY: Because the Forest Service easement allows the public. DEWOLF: That's right. The Forest Service has the easement, so the private property owner cannot block it without the Forest Service's permission, and the Forest Service can't block the public access without the going through the process to make that determination. It's not that simple. LUKE: There's a difference between a gate and blocking the Forest Service on the road. If the Forest Service has a key to the gate and has free access through that, it's different than blocking them out. CRAGHEAD: That's the applicants' argument. DALY: But that is not the issue. CRAGHEAD: That's one issue. All of this is getting away from the issue of whether they need a conditional use permit. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 14 of 47 Pages DEWOLF: We've had situations in the past where we have closed off certain sections of County property, but we had to go through a public process and make findings of the adverse impacts. That seems like a good comparison here, because the Forest Service, like the County, when they have public property, it's the public's property. You've got to go through processes in order to change the use of that property, whether it's an easement or property owned outright. That's my understanding. Is that a fair assessment? CRAGHEAD: I believe so. That is also the opinion of the Sisters Forest Planning Committee. But the applicants believe the Forest Service has the right to close it at any time. They have letters in the record from the District Forest Ranger saying that this is consistent with the easement, and that they have the right to do that. So it's a matter of weighing the evidence and the legal arguments. DEWOLF: Does the District Forest Ranger have that authority? CRAGHEAD: The applicants believe they do. The Sisters Forest Planning Committee believes they do not. DEWOLF: What a surprise. This is going well so far. DALY: We are still getting off the subject of the next question, whether a conditional use permit is required. My understanding is that the applicants have already applied for and have run this through the conditional use process. CRAGHEAD: Right. DALY: So, really, why are we addressing this? CRAGHEAD: Because the Hearings Officer found they did not need a conditional use permit. They had a public hearing on it. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 15 of 47 Pages The issue is, initially staff found that the applicant needed a conditional use permit but not follow the road dedication requirements under Chapter 17.52, road dedications. The Hearings Officer found exactly the opposite, that they needed the road dedication requirements not the conditional use permit. I believe they need both. I believe it is a conditional use in the forest use zone to have a road dedicated, but you also need to follow the road dedication process. DEWOLF: Well, that makes sense. CRAGHEAD: I believe the Hearings Officer was correct for the RR -10 zoned area, but not the forest zone area, the F-1 section. WHITE: It is an interpretation of the Code again in Chapter 17.52. What it says is that it seems to raise a distinction between road dedications that require a conditional use permit and those that don't. CRAGHEAD: What it says is that these road dedication requirements in Chapter 17.52 apply if you don't have another land use application. It is a matter of Board interpretation of what "other land use application" means. Does it mean in conjunction with some other process, as they are also filing for a final plat? Or something like that. Or does it mean that anytime a road dedication requires some sort of other land use permit, like in this case a conditional use permit, do you not apply Chapter 17.52. I think it can be interpreted that because this is a stand-alone dedication, that's not the other land use application contemplated by this ordinance. But that would be a Code interpretation for the Board. The Hearings Officer did not find it that way. WHITE: Partly because staff also didn't think that it applied. There is a distinction between that intersection of Bull Springs Road and the Johnson Road, because that is in the RR -10 zone. The rest is in F-1. So we believe that the proposed road dedication required a conditional use permit, which they've applied for. The Hearings Officer found differently. She said that because the roads are existing roads and are being used for forestry uses that this is a use permitted outright in the forest use zone. It goes back to the issue of converting it to a public road. The Hearings Officer didn't necessarily distinguish between that change. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 16 of 47 Pages CRAGHEAD: I think that if it is a conditional use, you still need to apply the road dedication process because otherwise we have no road dedication process. If you follow Statute, it's a whole different process than going under our Title 17. I think you need to apply both. Now, the Hearings Officer already made the findings on the conditional use criteria because it is also included in Chapter 17.52. There doesn't need to be more — there doesn't need to be a shift in what those findings area, other than beefing up if you so find that the road dedication can be approved. There need to be some additional findings in those. The Hearings Officer did hold a hearing on the conditional use criteria and did make findings on those criteria. So that has not changed, and is also included in Chapter 17.52 DALY: So what would you suggest that we find? (Laughter.) CRAGHEAD: If you so choose, my suggestion is that you find that in the forest zone this is a conditional use in the F-1 zone, and that's another issue to be raised. And that it is not the other land use application contemplated in Chapter 17.52. To make matters more confusing, that's another issue raised by the appellant. Their issue is that it is not a conditional use in the F-1 zone because of the conversion to the public, and therefore requires an exceptions process. The applicants' argument is that under the Statute 215.283(3) that it is a conditional use. I think it is a viable argument. LUKE: This road, whether public or private easement, is open to the public. It is still going to do forest practices. Is there any question about that? CRAGHEAD: No. DEWOLF: Yes. CRAGHEAD: There will still be logging trucks running on it, which will be one of the uses of the road. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 17 of 47 Pages DALY: Part of that is also that it will allow forest practices such as clean up and slash burning, which is an ongoing thing. And except for the Loop Road, it was an existing road, right? CRAGHEAD: The applicants are claiming that the Loop Road is an existing road, because it has been in existence for a year. LUKE: No one is arguing that none of the roads were not existing roads except the Loop Road. The appellant is arguing that the Loop Road may not be an existing road. CRAGHEAD: Correct. LUKE: I'm having a hard time seeing the problem of why, if you have an existing road and you are making a public dedication, the use of the road isn't really going to change except that the public will have full access to that road until it hits the gate, which they do now. DEWOLF: See, this is where I have a problem. LUKE: Why does it require a conditional use? That's where my question is. DEWOLF: It is changing the use of the road. You're changing it from a private forest use to a public use. LUKE: The only difference is that currently somewhere along the line of the easement you could stop public access farther out on Bull Springs Road, if both sides agree to the easement and you go through whatever public process you think you have to go through. You could entirely cut off the public's access to that road except to the private property owners or those who have easements. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 18 of 47 Pages DEWOLF: That assumes the conclusion of that hearing, and that's what I don't think we can do. If you have to go through that process and what's found at the end of the process is you cannot close that off, you don't get the gates here. CRAGHEAD: And if you don't get the gates, you don't get the dedication, and then you don't get the partition. LUKE: What I am going back to is that we are talking about is for a conditional use you need a change of use. Okay. You have existing roads that the public accesses now because the Forest Service easement, on the Loop Road. They haven't been cut off. You are dedicating the roads to the public to the yellow. Technically you could probably move the gate to where the yellow and the orange come together. Once it is no longer a public road, you could probably move the gate to there if you wanted to. So we're just talking about what is in the orange. CRAGHEAD: Yes. WHITE: I've got a comment about the orange. The orange is actually private right now. The public doesn't have a right to use the orange. Bull Springs Road is private, and the Loop Road is private. Just the landowners use it. It is not currently open to the public. So right now Bull Springs Road and the Loop Road are private roads. There is that section of the U.S. Forest Service -Sisters Mainline Road that runs through there, and of course that could be considered a public road. But right now Bull Springs Road and the Loop Road are actually private roads that the public doesn't have the authority to use. And about the gates, it is my understanding that according to comments by the Road Department on this application that I don't think you can put gates on a dedicated road. CRAGHEAD: And the gates were chosen according to submission by the applicants in conjunction with consultation with the Oregon Department of Fish and Wildlife and the U.S. Forest Service. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 19 of 47 Pages DEWOLF: If the Thomas' had done what we asked them to do, which is dedicate Bull Springs Road and improve a portion of the Sisters Mainline from Bull Springs to the property, we wouldn't be in this mess now, correct? CRAGHEAD: No, you could still be. DEWOLF: Why, because of the northern end and public access up through the parcel? CRAGHEAD: Correct. LUKE: The same argument applies. It would take a conditional use to do it. I need a clarification. The conditional use process has gone forward and been approved by the Hearings Officer, including a public hearing. CRAGHEAD: It had a public hearing, but the Hearings Officer found that the conditional use was not necessary. So she made findings only based on Chapter 17.52, the road dedication. LUKE: I'm looking for the ramifications for us to say that this requires a conditional use permit. CRAGHEAD: The ramifications are on how to hang our hat on allowing this to be a use in the F-1 zone. She hung her hat on the fact that it is already an existing forest use road. The other, I think the more viable argument, as presented by the applicants in their application materials, provides that this is a use allowed because of ORS 215.283(3), which allows a road to be in the forest zone. The OARS list four forest zones, OAR 660.006, I think 025, allows it to be in the forest zone if it is a use allowed under 215.283(3). The (3) allows it to be a conditional use in the zone. That's why I think it is a conditional use. LUKE: So, what are the ramifications if we agree? Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 20 of 47 Pages WHITE: Essentially, in my opinion, is that for any existing forest roads in the forest use zone, if they become roads dedicated to the public, the process to go through, a road dedication process, and not a conditional use process if those existing roads were used for forest uses. LUKE: The only way you are going to build in the F-1 zone is to access it either from a Forest Service road or a publicly dedicated road. Isn't that the rule? Isn't that why we are here? WHITE: It's partitioning. If you want to build, you have to meet road standards. LUKE: If they wanted to build a house on one piece of property, that would have been it. But they wish to partition the property. CRAGHEAD: Practically there is no difference, because Chapter 17.52 also requires you to make findings on the conditional use criteria. It's just a different permit and different permit fee. LUKE: I know why we heard this on the record. We didn't want to go through these three chapters again. But it would be interesting to have other peoples' views on this, although we can't do that if it's not in the record. I'm having a hard time with this, because they are existing roads. I believe the Loop Road is an existing road. I don't have a problem with that. For people to bring an existing private road up to standard and dedicate to the public, and accepted by the Road Department and whoever else needs to accept it, I can't see why this would have to be a conditional use. But you guys have the numbers. CRAGHEAD: That would then make any road in the Forest Service allowed to be dedicated. Anyone who wanted to dedicate it. LUKE: And the problem with that is what? Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 21 of 47 Pages CRAGHEAD: Because of the fact that it specifically delineates in the OARS that roads are to be conditional uses, unless they are a forest use road, and the fact that they split it out that a forest use is permitted outright and all other roads are conditional use, you need to give meaning to that OAR. Unless it is primarily used for forest use, it is a conditional use. Therefore, converting it to the public takes it out of primary forest use to a public use, and therefore is a conditional use. DALY: I think I understand it now. What you just said makes a big difference. When you convert it to the public it takes it out of primary forest use. LUKE: There is nothing that says a public use can't be for forest use. CRAGHEAD: Right. Just like Highway 97 could be. DEWOLF: Right, it is. CRAGHEAD: So it's a matter of the fact that the OARS split out the difference between what use is permitted outright and all other roads are conditional uses. To say that this one is a use permitted outright allows any use in the forest zone to be converted to a public road dedication. DEWOLF: Semantically, what is the difference between going through the exceptions process and getting a conditional use? Are we talking about the same thing? CRAGHEAD: No, the exceptions process is much more onerous. There is a lot more evidence required, and other OARS that have to be followed. It is much more onerous. DEWOLF: Are we talking about the same issue, though? CRAGHEAD: No, it's a different issue. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 22 of 47 Pages LUKE: If we decide it takes a conditional use, what does the applicant have to do? CRAGHEAD: Nothing more. LUKE: You said there wasn't a decision. CRAGHEAD: They have already applied for the conditional use. It would just be a matter of the Board making a decision changing what the Hearings Officer found, and saying that it is a conditional use. The applicant has to do no more. They have already applied for the conditional use. DEWOLF: It has to be a conditional use. How can it not be? LUKE: If we have two votes, we can move forward. DEWOLF: That's true. Then every road in the forest can be changed because we have now decided that it is a use allowed outright, and dedicate roads in the forest to public use. LUKE: Only on private ground. DEWOLF: Only on everything that is in dark green on the map. It's got to be a conditional use. LUKE: If you have two votes, you can move forward. DEWOLF: Do you agree with that, Mike? DALY: I do. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 23 of 47 Pages DEWOLF: So we're done with this part. LUKE: So, what kind of findings do we need to make here? CRAGHEAD: That it is a conditional use, and that you need to apply Chapter 17.52, road dedication criteria. Because that is an interpretation of the Code that says that this is not the other land use application that was intended by that Code. What you could do is direct, assuming that you approve this application, the applicant's attorney to write findings consistent with that direction. DEWOLF: So the only reason we make that decision is if we approve the whole application. CRAGHEAD: Right. DEWOLF: If we don't approve the whole application, this was just a moot discussion for the last half-hour. CRAGHEAD: Exactly. The same with any motion that you make as a part of this decision. LUKE: What's next? DALY: Do we need to make a motion? CRAGHEAD: If you approve the application, this would be a part of it. Similar to the very first motion that you made, it's only valid if you approve the application. LUKE: No, the first motion we made is valid regardless because it directed staff on a policy issue. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 24 of 47 Pages CRAGHEAD: That's true. One issue in between here, since we're on that same subject, is that you brought up the issue of the exception. The applicants submitted materials that they did not believe were needed to go through the exception process, just the conditional use process. The SFPC says that they need to go through the exceptions process. The Board needs to find whether the Hearings Officer was correct and the exceptions process is not necessary. DEWOLF: Would you give us a succinct explanation of the Hearings Officer's reasoning? CRAGHEAD: Because they uses permitted outright in the zone. I believe that since the Board has found that this is a conditional use, that's what you hang your hat on in not needing an exception. DEWOLF: Okay. And the other thing that we're hanging our hat on here, no matter what happens here, this is going to LUBA. CRAGHEAD: That's right. DEWOLF: And LUBA is comprised of lawyers, land use attorneys. CRAGHEAD: Yes. DEWOLF: Okay. That helps. DALY: Are you sure? DEWOLF: Yes, I am, because this is the most complicated thing I can recall having to deal with. This is really a convoluted and complicated issue, and I think we need that kind of assistance, no matter what we end up deciding. There are a lot of times I wish things would not go to LUBA, but this is one I'm going to take some comfort in. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 25 of 47 Pages DALY: What do we need to do next? CRAGHEAD: The next thing is that the SFPC found that, as Cathy put so well in her staff memo, there was an inadequate delineation of the study area in order to determine the impacts of the road. Both increasing the cost of forest practices changing, fire hazards, environmental issues, all sorts of things — whether or not it is a suitable site for the road — LUKE: But she cited the Hogenson study. Would it be appropriate for the Commissioners to enter that study into the record? CRAGHEAD: Not now. You can't open the record. However, the fact that she cited it makes it a previous public decision and can be reviewed administratively. That study area is of record. WHITE: The Hearings Officer, on page 179 of volume 1, references the Hogensen decision. But she also explains what it is she is talking about and adds to it. She says, "The study area should include the Hogensen parcel, adjacent parcels, the southern half of Crown Pacific's Bull Springs Road, and that land managed by the Forest Service that takes access from Sisters Mainline Road south to Bull Springs Road. Inasmuch as the proposed road dedication is located very close to the Hogensen parcel, I find the same study is appropriate here, with the addition of the segments of Sisters Mainline Road south and replaced by the Loop Road". So, she says it is similar to the Hogensen case; and she also tells what that Hogensen case found, and she added to it. That could be sufficient for the Board. CRAGHEAD: I don't know how LUBA would come down on this particular issue. I think that you can make a finding that is sufficient delineation simply because she mentions the other study area and described what it is. It is one of the things we just argued yesterday in front of LUBA. Either way, we'll find out about the study area and whether it is adequate. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 26 of 47 Pages Our argument before LUBA yesterday was that it didn't need to be more specifically described as SFPC is arguing; and that you just need to find generally the area. Unlike EFU where there is a specific area that is to be delineated, the forest zone requirements don't have that. You could find that the way the Hearings Officer delineated the study area is adequate. LUKE: would think that she did a pretty good job on this. If we approve the application, would be willing to accept the Hearings Officer's findings on the study area. DEWOLF: I'm okay with that. DALY: I am, too. CRAGHEAD: Also, one of the issues is whether the study area was even required — a specific study area. I think you could find that it was not necessarily required in this case, but it was helpful to determine what the impacts were in the general area. There is nothing in the Code that says a study area shall be required. In EFU, it specifically says that a study area shall be required. In the forest zone it isn't required. She just identified an area that would help figure out what the impacts might be. LUKE: State law or County ordinance don't require it? CRAGHEAD: Neither. DALY: But the appellant referred to the state law, but I forget what their argument was. CRAGHEAD: They referred to the EFU requirement. LUKE: So it is your position as County Counsel that the study area is not required. CRAGHEAD: Right, it just helps in trying to figure out whether there are impacts. minutes of rubric Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 27 of 47 Pages LUKE: You're suggesting that if we approve this application, our finding on the study area should be consistent with state law. CRAGHEAD: Yes. And I believe the applicant did submit that in their submittal, and I think they did a good job of explaining that in their submittal for this appeal. So you could direct the decision to be consistent with that. LUKE: The finding would be that even though a study area is not required, the Hearings Officer did a good job regarding the study area that she identified. Is that close? CRAGHEAD: Yes, in general. DEWOLF: Does the Forest Service have an easement on Bull Springs Road? WHITE I don't recall. CRAGHEAD: I don't know. I'd have to look in the submittals. LUKE: As you said, the yellow came up, picked up the blue, and went on. DEWOLF: The thing is, according to this map here, if it is accurate, you've got the Forest Service road, and this is Mainline.... CRAGHEAD: My understanding all along is — DEWOLF: But it also have a U.S. Forest Service road with a small brown line, which is what Bull Springs Road is. That's why I'm curious. It's identical to these others. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 28 of 47 Pages CRAGHEAD: My understanding is that it is only on the Sisters Mainline Road and not on Bull Springs for the U.S.F.S. DALY: Do we need to affirm this? LUKE: Only if we approve it. DALY: I understand. But do we have agreement? LUKE: Yes. CRAGHEAD: As Cathy has pointed out on her staff report, SFPC thinks there needs to be some additional identifying of natural and physical features of the site, and transportation impacts, operating characteristics of the use , and so on. So there would probably need to be some further findings on those issues. The applicant did submit some additional information in their submittal to this appeal that would probably help with this. It's a matter of the Board determining whether to add to the Hearings Officer's findings on those impacts. LUKE: Yes. DALY: I'm lost on that one. LUKE: You are just asking for some additional backup information to what the Hearings Officer found. You're talking about reinforcing those findings to help our decision. CRAGHEAD: Right. And whether you have found that there is more evidence in the record regarding these impacts — environmental, transportation and so on. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 29 of 47 Pages The Hearings Officer's decision on these issues was cursory because of the fact that the gates were going in. Her assumption was that there would really be no more increased traffic because of the gates and the fact you can't get anywhere from here. LUKE: I think you should supplement the Hearings Officer's findings with anything that has been submitted in the record that helps strengthen those arguments. DEWOLF: Agreed. Let's move on. LUKE: You know, Tom McCall encouraged land use laws because he thought it would be simple and so people could do it without attorneys. WHITE: What the Sisters Forest Planning Committee is arguing here is that the Hearings Officer, while she is saying that the gates don't require a conditional use permit, that she conditioned the approval by requiring the gates to be installed at these particular locations. The SFPC is questioning whether the Hearings Officer's conditional of installation and maintenance is feasible, and if there is substantial evidence in the record to establish feasibility. This is a legal question, but it is my understanding that a condition has to be feasible to implement. CRAGHEAD: That was one of the issues we argued yesterday. It's a case that I forgot to look up this morning, Thomas versus Wasco County, which Mr. Dewey brought up in the argument that requires a local government to find a condition feasible before they can impose it. I haven't looked that up to see if that's exactly what it says. We argued to the contrary on that, that if it is an absolute condition it just has to be done. So it's a matter of making a finding on whether you need to make a feasibility argument in that case. LUKE: Without the gate you'll have to do a traffic study. CRAGHEAD: I would think so. And do further environmental and other site-specific impact studies. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 30 of 47 Pages LUKE: With the gates in place, it should mitigate the amount of additional public traffic that would want to enter this area, because there's no place to go. CRAGHEAD: That could be one of your findings. LUKE: This would, in effect, help to protect the winter deer range even more. CRAGHEAD: And that is what the U.S.F.S. and O.D.F. & W. believe, and it is in the record. DEWOLF: That's a great short-term solution. Long-term, I don't buy it. CRAGHEAD: So, are you arguing with the feasibility of the gates? DEWOLF: The gates are my biggest problem with this entire thing. Without the gates, the whole application doesn't work. The problem with the gates is that they do change the use completely, because you are cutting off access north and south through an easement that the Forest Service holds. They've got access. And now, through this action, we are cutting off this access. And in so doing, we are creating public access to a whole series of parcels in here; not one that the Thomas' are coming in here for. What we are doing is creating more adverse impact in the urban interface with the forest, flying right in the face of everything that we've been doing in bringing on a County Forester. This is the part that creates all of the angst for me in this proposal. These gates — without them, this doesn't work. With them, this doesn't work. CRAGHEAD: SFPC's argument is that it is an enforceability problem in terms of how you make sure the gates remain closed, whether it is feasible, whether the U.S.F.S. could have the gates placed there. The applicants' argument is that the roads in this section access private properties only anyway. Minutes of Yub►ic Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 31 of 47 Pages DEWOLF: Without the gates in place, the Forest Services has, through an easement, granted me as a member of the public access all the way through here. There's nothing to keep me from there. CRAGHEAD: The applicants' argument in that case is that there is access to the northern and southern sections through other roads; that this particular section of road is not needed. LUKE: They don't need to go through private property. DEWOLF: That's right. If I want to get to here and I'm here, I could go all of the way out here, go all the way out Johnson Road, go all the way out Highway 20, and come in and access it wherever the access road comes down. That's true, I can do that. But it's an extra sixty miles. DALY: There are other roads across there, Tom. CRAGHEAD: They are saying that there are other roads within as well. DEWOLF: We're taking a section of ground that is currently open to the public through an easement and cutting it off, without going through the NEPA process that you say they should have to go through. That mile or so section there is currently open through an easement to the public, and we're saying we are putting up two gates and cutting it off with no further process other than this. CRAGHEAD: Which is a process that you would have no control over. It is a federal process. DEWOLF: That's okay with me. We're stepping on federal ground. I don't think we have the authority to do that. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 32 of 47 Pages LUKE: I have a real question that you can force private property owners to allow the public to access their property. Now, they might be able to access the road. I mean, they could fence the road like the Millican Road or whatever road. You could fence that road and they could only go down that channel. Now, I'm not sure that the easement for the Forest Service is part of the record. CRAGHEAD: It is. LUKE: Does that easement say it is for forest practices only, or does it say that it is for the general public to access that private property? Because if it doesn't say it's for forest practices only, we could keep other people out. DEWOLF: Which it could, because the only time it is closed to the public is during that protection period for the winter deer range. LUKE: But that's a voluntary agreement with the Oregon Department of Fish and Wildlife and the private landowner. Maybe they could go through an administrative process if the private landowner said no, but what you have in effect is the private landowners have said that they are closing the road. That's what has happened. WHITE: Interestingly enough, you have a letter in the record that was part of the application, from the U.S. Forest Service saying basically the District intends to vacate the undedicated portion of the Sisters Mainline Road that runs in a north - south direction through section 22, and blah blah blah, and they "are going to rely on the dedicated Loop Road to provide access for U.S. Forest Service vehicles between the northern and southern portions of the Mainline Road." They continue by saying that "The District is also supportive of the applicants' proposals to place gates at the future junctions of the dedicated roads in the Sisters Mainline Road. The U.S. Forest Service vehicles and the public will continue to have adequate access to the public lands to the north and south of the applicants' tracts via U.S. Forest Service roadways located on the public parcels." So, it's a little confusing because they don't address the issue of the general public using it. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 33 of 47 Pages LUKE: Anybody can use a Forest Service road if there's no gate on it. The basic purpose of those roads was for forest practices. The fact that the public drives on them is simply because they aren't closed to use. This goes through private ground. It depends on what the Forest Service easement says. I'm not sure that the public has that right. They are abandoning their easement and are relying on a proposed publicly dedicated road so that they don't need that easement anymore. So they would be walking away from their easement. (Ms. White and Ms. Craghead took a few moments to try to locate a copy of the easement document.) WHITE: The other thing is that regarding the gates, the Hearings Officer made several of her findings based on the installation and placement of those gates. So removing the gates from the decision, for example, would result in her findings that rely on the gates being in place having to be revised. LUKE: Is there private land to the south of the gate? WHITE: I think so. DEWOLF: It is private. It's in the middle of the private land. I mean, this only goes down to about here. This whole thing is Tweedfam land. Somewhere in here is where the gate is. CRAGHEAD: As we've talked about with the one of the Commissioners — I don't recall which one — there's the issue of an option, to have the gates open during the summertime, and whether that then runs into what you might require for traffic impacts for the dedication of the public road. That is SFPC's argument, that if it is a public road and access is still allowed, a traffic study might be needed. It's a matter of whether you want to require it, if you think there's not enough traffic to require the study because of the location of the road and the fact that it is a local access road, even if the gates are left open in the summer. But the Hearings Officer's decision was hung on the fact that there will be gates and they will be closed. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 34 of 47 Pages LUKE: They are still gravel roads, right? CRAGHEAD: No, they're paved in the public sections. And they'd have to be brought up to County standards. DALY: You mean from the gates? WHITE: Bull Springs Road is paved. There are some areas that will need to be improved to meet the County's road standards. I don't believe Loop Road is paved at this point. They will be required to be per public dedication. LUKE: So you do have an opportunity for increased traffic. CRAGHEAD: Actually, there are certain hard -packed surfaces that are allowed. DALY: The only roads that need to be paved to satisfy this issue are the orange, right? LUKE: Part of the orange is Loop Road. WHITE: I'm going to take a look at what the Road Department is requiring. This is from the staff report: "Right of way of Bull Springs Road shall be sixty feet wide. It will have to be designed in accordance with Title 17 — road improvements will be at least twenty feet wide with a minimum of five inches of aggregate." Bull Springs Road is paved right now, but some improvements will have to be made. DALY: But the Loop Road part they aren't requiring to be paved. LUKE: Or the Sisters Mainline. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 35 of 47 Pages WHITE: The portion that they are proposing to dedicate along Sisters Mainline Road would also have to meet County road standards, for gravel. LUKE: So Bull Springs is the only one that will need to be paved or brought up to standards. WHITE: Right. And my understanding is that it is fairly close to County standards as it is. DALY: But the County is not contemplating taking it over for maintenance. WHITE: Correct. They are not taking it over. It will be taken over by the adjacent landowners. DEWOLF: The difficulty that I see with this is this whole issue of public access. To me, that's where this is going to remain complicated. We've got a letter from the Forest Service that, according to what Paul Dewey is saying, is from the District Ranger, and the easement calls for the Regional Ranger. I think that's semantics; I don't think the District Ranger will do something that the Regional Ranger doesn't agree with. So let's assume the Regional Ranger agrees that this is all okay. But if I'm a neighbor and I don't like this, and I sue them over this, do they get sued at LUBA or District Court or what? CRAGHEAD: Sue the Forest Service? That would be in federal court. DEWOLF: Because if I'm a neighbor, that's what I'm doing, based on the fact that they are taking away the use from private to public, and they are cutting me off as the public. So we've got potential beyond LUBA. CRAGHEAD: But we would not be involved in that. It would be between them. Those people who are parties to this appeal — and so far it's just the SFPC and the applicants — if they find that your condition of the gates is not feasible, they could file an appeal to LUBA on the findings. That's the only way the County would be involved on that issue. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 36 of 47 Pages DALY: Did you find that easement? CRAGHEAD: No, I haven't been able to find it yet. DALY: I think Commissioner Luke had a point; that we need to find out whether that easement is strictly for Forest Service vehicles or if it allows for the public. The easement was probably given by Crown originally, when they were logging the area. CRAGHEAD: I think I found it. LUKE: It says, this grant is made subject to the following terms, provisions and conditions that are applicable to the grantee, which is the Forest Service as permittee, its contractors and assigns." CRAGHEAD: There is one provision in the easement that says granting the grantor, which is the U.S.F.S. on one of them, which is on page 504, the right to use the road for all purposes deemed necessary and desirable by grantor in connection with the protection, administration, management and utilization of the grantor's lands or resources now thereafter owned or controlled. It is also subject to traffic control regulations and rules as grantee may reasonably impose for all other users. And then it goes on specifically for right to use it for logging and so on. DALY: It doesn't specifically allow the public use. CRAGHEAD: It doesn't specifically allow it, but says it is for any purposes that the grantor, which is the U.S. Forest Service, indicates. Except that there is one other one, a permit, which says permission is granted to the United States of America that the Forest Service and the public have the right to the existing authorized easement as previously executed. It's in volume 3, page 65. WHITE: This one is the detour that goes around the surface mining site, I believe. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 37 of 47 Pages DALY: We're primarily interested in the Sisters Mainline Road, aren't we? CRAGHEAD: It talks about the original easement, but I need to find that one. It's dated January 13, 1983. It's also in volume 2, page 499. It doesn't specifically say the public; it just says for whatever purposes deemed necessary by the grantor. And they have deemed that the public has the right to use it. So it could be denied by the U.S.F.S. DALY: I didn't hear what you just said. CRAGHEAD: The easement didn't say anything about specifically for the public, but it does say for any purposes deemed necessary by the grantor, and apparently that's what the grantor has indicated. DALY: The grantor is Diamond International. CRAGHEAD: Oh, you're right. I was going the opposite. DALY: And this says permit; it doesn't say easement. LUKE: The original document was an easement. Laurie, on that page 504, it says, "The right to use the road for all purposes deemed necessary or desirable by the grantor in connection with the protection, administration, management and utilization of the grantor's land". So, typically, I would see an easement that goes through private land that has public lands on each end, so that the grantee — the Forest Service — could get from one piece of their land to the other or whatever. This seems to be for the sole benefit of the grantor. DALY: That's why I thought I'd be surprised if I saw an easement that actually granted an easement to the public across this private land. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 38 of 47 Pages CRAGHEAD: Also, on page 503 at the top it talks about the grantee alone may extend rights to other users, including members of the public. DEWOLF: And anything that is owned by the Forest Service is owned by the public, including an easement. LUKE: It adds, "Providing that such additional uses also shall be controlled by the grantee so that it will not unreasonably interfere with the use of the road by the grantor or cause the grantor to bear a share of the costs of maintenance greater than grantor's." DALY: I guess I'm still a little bit confused as to what that means. CRAGHEAD: The easement itself doesn't necessarily say that the public has a right to go over the easement. It just says that the Forest Service has the right to allow the public to go over it. LUKE: And the right to not allow them. DALY: In "A" here on the first page it says, "in connection with the protection, administration, management and utilization of the grantee's lands or resources". In other words, the easement is granted for the protection of the grantee's lands and resources, which is not within that property. This is the Forest Service. DEWOLF: So, what are we deciding at this point? LUKE: You are the one who has a problem with the gates. DEWOLF: I have a big problem with the gates. I mean, if they are there this doesn't work. If they aren't there, this doesn't work. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 39 of 47 Pages CRAGHEAD: It's a matter of whether you are finding it feasible to close the gates year round, or whether you are finding that if they are kept open in the summer, if there is sufficient evidence in the record of the lack of impacts. LUKE: There is nothing in the record about impacts if the gate is open. DEWOLF: It wasn't required. DALY: When you said this doesn't work if the gates are there, what do you mean by that? DEWOLF: What I mean is that you are cutting off access that the public currently enjoys, through that easement. They can get from one side of that to the other. By cutting that off — CRAGHEAD: They have access through permission of the U.S.F.S. DEWOLF: Correct. Which is us. We are the public. We are the Forest Service, just like we are the County government. I, as a member of the public, now have an easement through my agent, the U.S. Forest Service. I enjoy the right to travel on that road through that easement. You take that away from me, you are taking away something without my permission. That's what you said earlier about having to go through the NEPA process, which is what Paul Dewey is claiming. I agree with that. You are taking away a right that I currently enjoy. LUKE: But the Forest Service closes roads all of the time. After fires, they shut off access to a lot of roads out there. They close off logging roads on public lands if they are in protected areas. DEWOLF: So let's cut to the chase. If you guys both disagree with me and approve this, we're done. It's going to LUBA and this will be litigated anyway. If you guys agree — Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 40 of 47 Pages DALY: I'm just trying to understand it myself. DEWOLF: I think we are taking away a right that the public enjoys. But without the gates there, we don't have any evidence to show that there isn't going to be increased traffic impacts. LUKE: This is not our easement. The Forest Service, whose easement it is, agrees with the gates. DALY: And I also say that I don't think we're taking away the right totally, because there are other ways to access the public property. LUKE: The public has no inherent right to access private land. DEWOLF: Then, I'm saying, go for it, guys. I don't agree and that's okay. I've lost lots of votes. Let's move on. I'm comfortable with not trying to convince you or you not trying to convince me. Splitting on this is fine. DALY: I agree with Commissioner Luke. CRAGHEAD: Which means, that having the gates is feasible, and that satisfies the conditions that no further evidence of the potential impacts is needed? LUKE: If the gates weren't there, you would need an impact study. There's no question in my mind. But I think with the gates in there that it should not increase the impacts. I think there is enough evidence in the record that it should not increase the impacts on that area. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 41 of 47 Pages CRAGHEAD: As I am going through some notes, as an aside, one thing that the Board needs to make sure is corrected in the decision is that the Hearings Officer found that the original Thomas partition decision was not appealed. That is inaccurate. It was appealed to LUBA. So that needs to be clarified in the decision. (Consensus.) We need to clarify also that SFPC talked about the potential for 100 more houses to go in without identifying which properties might be divided, so there is insufficient evidence there. We need to address that issue. That can be done in the decision. (Consensus) I think we need to clarify that some of the information submitted by the applicant isn't accurate where it talks about this being allowed because it is the widening of an existing right of way. We need to clarify that a right of way means public right of way, so that those particular criteria that are referred to in the applicants' material about widening the right of way or altering them does not apply. We are only hanging our hat on the fact that it is a conditional use in this zone. LUKE: Is the easement wide enough to do the widening? CRAGHEAD: According to the applicant, yes. We need to clarify in the decision also that the Hearings Officer was in error that acceptance of the public dedication does not mean acceptance into the County road system. (Consensus.) Because we have a Code provision that says exactly the same thing, the Hearings Officer didn't make any reference to ORS 215.296, because our Code covers it. But since that is an argument by SFPC, if you are going to approve this, we need some reference in the decision that it is the same wording and therefore the findings apply. (Consensus.) Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 42 of 47 Pages Regarding the documents that were submitted by John and Nancy Lowas, everything that they submitted in this appeal had been previously submitted. I did find their previous letters and documents in the record. They are basically bringing up the same issue that Commissioner DeWolf brought up, which is the fact that the public will no longer have that particular access. LUKE: But the County doesn't have control over that. DEWOLF: We have already argued this. It's already done. CRAGHEAD: And then, they brought up the issue of the feasibility of the gate in terms of mitigating the environmental impacts, and argue that it does not help the wildlife at all. They also argue that further discussion of fire impacts is needed, that allowing this public dedication will actually increase the fire hazards. LUKE: Why would that be? CRAGHEAD: Because you would be allowing more development in the area, and houses cause more hardships and costs for the firefighters. It's the same argument we had yesterday at LUBA regarding the Hogensen case in terms of the increased costs and impacts on firefighting. DEWOLF: And I agree. But dedicating roads, like the Hearings Officer found, doesn't mean anything when it comes to establishing more parcels for homes. It's a step along the way. I agree, this flies right in the face of everything we are trying to do in terms of forest fire suppression and the urban -forest interface. But I don't think this is the place that we have any authority to do anything about it. LUKE: Senate Bill 360 is requiring homeowners to do more and more anyway. I know those letters are going out and homeowners will need to come back with a plan. I don't see how, if there are submittals for partitions or applications for houses, that we don't impose those same requirements on them in order to reduce, as much as possible, the risk of fire out there. And this has been annexed into the fire protection district, and I know they work with the homeowners in those areas. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 43 of 47 Pages DALY: It would seem to me that the private property owners out there are well aware of the fire dangers and whatever, and from this day forward there is going to be a whole lot of effort to try to clean up that problem. The forest isn't getting cleaned up nearly as fast as private property owners are doing now. WHITE: The forest use zone also has specific criteria that addresses fire siting standards for structures on the property, which includes certain fire breaks — 10 feet, 20 feet, 100 feet — and other requirements that address getting emergency vehicles to the property. CRAGHEAD: And the argument is whether that is sufficient evidence of what the environmental impacts are versus the fact that state policy is allowing dwellings in these areas. DEWOLF: That will be addressed when an application is put in for dwellings. That's not before us now. CRAGHEAD: We need to again clarify that the Hearings Officer found that although this is different from what the Board required in the Thomas partition application, doesn't mean that the applicants couldn't have come forward with this kind of road dedication application regardless of the partition application. LUKE: They could have come through with less, but had to come through with at least what we required. There's nothing that keeps them from asking for more. CRAGHEAD: I think we also need further findings on what the public need for this road is. The Hearings Officer said that the opponents didn't find any statutory or ordinance requirement for such findings. There was, I think on page 487 in the record, a reference in which they did provide — I'm not finding it now, what I originally wrote about the public need for the road to provide access. DALY: In other words, do we have to make a finding that there is a public need for this road? Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 44 of 47 Pages CRAGHEAD: The Hearings Officer found that you did not. The SFPC says that you do need to. Although the Code does not say specifically that public need is required, they did give a provision in 17.52 that says that Deschutes County shall not add any miles of new road to the system unless the following uses are satisfied, and that the need for the road is to be clearly demonstrated. It's a matter of whether you want to interpret that the public need for that is there. But, again, this provision is required for when you are adding it to the County road system, and you are not. You could find that public need is not applicable for a dedication. (Consensus.) CRAGHEAD: I believe that's it. It's a matter of whether you want to approve this, and direct staff to work with the applicants' attorney for drafting this — that the applicant's attorney will do the initial drafting of the decision for staff and legal counsel review. I e I would ask if it is appropriate to move for approval of the road dedication, and move for each one of the findings. Separately or how? DALY: I think we have given staff direction. CRAGHEAD: You are still going to have to come back and approve the decision itself. LUKE: Don't we have a problem in that the 150 -day clock is a week from today? CRAGHEAD: The fact that they asked for rebuttal at the time added seven days, according to our Code. It needs to be in the record. WHITE: It is related to that procedural finding that you first made. We'll just add it to the findings. Right now the 150 -day period ends September 24, so it would be seven days longer. That puts it at October 1. Do we have to bring this back to a regular Board meeting? Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 45 of 47 Pages LUKE: It has to be approved in a public meeting. WHITE: I don't know if it will be ready in that time frame. (The Board took a brief recess at this time.) CRAGHEAD: We can extend it another week. The applicants are willing to send a letter to extend it beyond the first seven-day extension. WHITE: We'll need to get something to you by the Thursday before so you can make a decision on Monday. DALY: The applicant is going to write the findings, right? LUKE: In cooperation with staff. Let me go ahead and make a motion. LUKE: Move approval of the road dedication, subject to the findings and direction we have already given to staff. And that the applicants' attorney be directed to write the findings for review by our Legal Counsel. And that, further, because the applicants asked for final comments, that the 150 -day clock was extended another seven days; and we would look for a decision by the 29th of September unless the applicant extends the 150 -day clock further. DALY: Second. VOTE: DEWOLF: No. (Split vote.) LUKE: Yes. DALY: Chair votes yes. LUKE: Do we need to do any further direction regarding findings, or are you okay with what you have? CRAGHEAD: We've got what we need. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 46 of 47 Pages Being no further discussion, the hearing adjourned at 11: SS a.m. DATED this 15th Day of September 2004 for the Deschutes County Board of Commissioners. ATTEST: ( 1 � f/��V U-4 Recording Secretary Attachments Chair aennis R. Luke, C6mmi sioner T4n De)Wolf, Commissioner Exhibit A: Preliminary Statement (2 pages) Exhibit B: Correspondence and backup documents, dated August 6, 2004, submitted by Paul Dewey (13 pages) Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Bull Springs Road Dedication Wednesday, September 15, 2004 Page 47 of 47 Pages PRELIMINARY STATEMENT IN APPEALS BEFORE THE BOARD I. INTRODUCTION A. This is an appeal being heard on -the -record of the Deschutes County Hearings Officer's decision approving a proposed road dedication to dedicate Bull Springs Road, segments of Sisters Mainline Road, and a private road called the "Loop Road" as a Local Access Road in the Forest Use, F-1 and Rural Residential, RR -10 Zones. File numbers: A-04-10/ CU -04-6. B. In that application, the applicants propose to dedicate to the public as a local access road a segment of Bull Springs Road, two segments of Sisters Mainline Road, and a private road called the "Loop Road." The applicants also propose to realign the intersections of Bull Springs Road with Johnson Road and the "Loop Road" to improve intersection sight distance and install two gates on Sisters Mainline Road north and south of the proposed road dedication. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the land use approval sought. B. The standards applicable to the application before us are on page 2 and 3 of the Hearings Officer's decision dated June 10, 2004 and are listed on the wall. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the final arguments submitted by the parties. IV. ORDER OF PRESENTATION A. Today is the date set by the Board for deliberations. Page 1 of 2 -Chair's Opening Statement for Land Use Hearings File: A-04-10/ CU -04-6 Date of Hearing: 09/15/04 Exhibit Page � of 2 B. Because the hearing is being heard on -the -record pursuant to DCC 22.32.030(E), the Board cannot take any oral evidence, argument or comment other than staff comment based on the record. The Board cannot consider any new factual information—only what is contained in the record. C. The order of presentation was previously determined, in part, by the Board in Order 2004-055, In the setting of an August 6, 2004 deadline for parties to submit their written arguments allowed under DCC 22.32.030(E)(4). D. Today, the Board will hear from Staff only. V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. No written challenges for ex -parte contacts, bias, conflicts of interest to any commissioner's ability to hear this appeal were submitted prior to this hearing. Given, however, that it would be difficult for a party to know what ex -parte contacts, bias or conflicts of interest the Commissioners may or may not declare until these deliberations, parties who wish to submit a challenge on that basis may do so now. (Hearing no challenges, I shall proceed.) Page 2 of 2 -Chair's Opening Statement for Land Use Hearings File: A-04-10/ CU -04-6 Date of Hearing: 09/15/04 Exhibit R Page 2. of 2 , Qti Paul D. Dewey Attorney at Law c1b 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 August 6, 2004 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 C@10W1 AUG 6 2004 LARD OF COMMISSIONERS ADMINISTRATION Re: Brief on Appeal of Application CU -04-6; Appeal of June 6, 2004, Hearings Officer Decision Dear County Commissioners: I am writing on behalf of the Sisters Forest Planning Committee ("SPFC") in response to your request that briefs be filed with the County on this appeal by August 6. INTRODUCTION This application and appeal concern the County's Forest Management (F-1) Zone located between Bend and Sisters west of Hwy 20. The proposal being appealed is a public road dedication. Such road dedications have been determined to be necessary if partitioning of land is to be allowed. The public road dedication is the threshold determination that allows development in the forest zone. The County on January 29, 2003, approved the Thomas partition of a 482 -acre parcel into a 322 - acre parcel and two 80 -acre parcels based on the condition that the Applicants dedicate Bull Springs Road to the public. The partition was expressly conditioned: "The Applicants shall dedicate Bull Springs Road to the public." Though the current proposal for a public road dedication arises out of that condition, it should be noted that the road dedication that is before you now consists of far more than what is necessary to satisfy the condition of the Thomas decision, the dedication of Bull Springs Road. New Loop Road segments north and south of the Bull Springs Road are proposed for dedication along with two segments of the Sisters Mainline Road. The reason for this expanded public road dedication is that other parties (Tweedfam) who are also interested in partitioning and development of their land seek to have public road access to reach their approximately 1,300 - acre parcel so that it can be divided into five more homesites. (See the attached real estate ad) The south Loop Road is not necessary at all to reach the Thomas property and is included in this proposal solely to access the potential Tweedfarm parcels. Exhibit Page I_ of _12) Board of County Commissioners August 6, 2004 Page 2 ISSUES ON APPEAL There are three key issues raised in this appeal: whether the un -permitted construction of the Loop Road segments one year ago actually requires a permit to have been constructed in this forest zone; 2. whether there is an adequate study area and identification of uses and impacts to determine that the conversion of these roads to public use a. will not force a significant change in, or significantly increase the cost of forest practices on forest lands; b. will not significantly increase fire hazard or fire suppression costs or increase costs to fire suppression personnel; c. is suitable as a proposed site; and d. will be compatible with existing and projected uses on surrounding properties; and 3. whether the Hearings Officer's condition of installation and maintenance of locked gates is feasible and if there is substantial evidence in the Record to establish feasibility. ARGUMENT 1. Permits must be obtained for the construction of the two Loop Road segments. The two Loop Road segments running north and south off Bull Springs Road were built about one year ago. (Hearing Tr. at 17, line 7) The Hearings Officer found that no permits were necessary for the two Loop Road segments because an outright use in the F-1 Zone includes: "forest operations and forest practices including ... road construction and maintenance." The Hearings Officer further found that the forest purpose was to "reroute traffic on Sisters Mainline Road away from SM Site 296 in order to reduce conflicts between forest practices and surface mining." (H.O. at 9) She also found that the Forest Service favored the Loop Road because it would allow vacating the portion of the Sisters Mainline Road that bisects the mining site and provide access around the surface mine. These findings are not based on substantial evidence in the Record where: 1) No actual forest conflicts were identified. Exhibit C-�j Page 2 of 3 Board of County Commissioners August 6, 2004 Page 3 2) Another loop road to accomplish these purposes was already built in 1994. The 1994 loop road constructed by Hap Taylor rerouted traffic away from SM Site 296. See the attached agreement and map on this 1994 detour road.' What is being proposed here is a second loop road. While the first loop road has resolved any traffic conflicts and rerouted traffic around the pit for 10 years, the second loop road was needed to provide access for the development partitions. The Applicants even admitted to this purpose in their Burden of Proof Statement: "[T]he Loop Road was developed by Tweedfam Investments, LLC and Hap Taylor & Sons, Inc. to serve the parcels resulting from Partition Plat 2002-98 and to provide an alternative route around the surface mining site." As acknowledged by the Applicants, this second loop road was to provide an alternative route around the mining pit to the existing bypass route around the pit. They also admit that the second loop road was to serve these development parcels. This second loop road was not built by Crown Pacific for its forest operations and practices but rather by the developers to access their new parcels. The creation of roads for these purposes require an exceptions process as was followed in the case of Pacific Rivers Council v. Lane County, 26 Or LUBA 323 (1993). The Hearings Officer states that she relied on letters from Matt Thomas, Kevin Spencer of Tweedfam Investments and Todd Taylor stating that the loop road was constructed "to reduce conflicts between forest practices and surface mining." (H.O. at 9) Such letters are simply not credible where Matt Thomas and Kevin Spencer identified no conflicts with their forest practices and surface mining and are only concerned with access to develop houses on their property. Second, no conflicts between forest practices and surface mining are even identified in this Record, which is logical because the existing loop road already satisfied any potential conflicts. There was no mention of any alleged "conflicts" with forest practices in the Applicants' Burden of Proof or at the hearing. From the beginning, this has only been about access to allow the Thomas and Tweedfam partitions to be approved and, if anything, to reduce conflicts between the development parcels and mining pit traffic. When challenged by the Hearings Officer as to whether there was a forest practice use for the Loop Road segments, the Applicants' attorney only answered that the new road "serves a forest parcel." (Hearing Tr. at 49, lines 1-10) No forest use was identified. Note that the Sisters Mainline Road route through the mining pit was obliterated at least 10 years ago, but the Forest Service has made no effort to vacate this road or to officially reroute it. Note also that Ranger Schloer does not have the authority to do so under the road easements executed between the timber companies and the Forest Service. See the next to last paragraph of the attached easement excerpts. Only the Regional Forester has the ability to change the route of the Sisters Mainline Road. Exhibit 5 Page 5 of i Board of County Commissioners August 6, 2004 Page 4 2. There was not an adequate study area or identification of uses and impacts to determine that the conversion of these roads for public use would satisfy the requirements of DCC § 18.36.040 and DCC § 18.128.015(A) and (B). DCC § 18.36.040 provides: "A. The proposed use will not force a significant change in, or significantly increase the cost of, accepted farming or forest practices on agricultural or forestlands. B. The proposed use will not significantly increase fire hazard or significantly increase fire suppression costs or significantly increase risks to fire suppression personnel." DCC § 18.128.015 provides: "A. The site under construction shall be determined to be suitable for the proposed use based on the following factors: site, design and operating characteristics of the use; 2. adequacy of transportation access to the site; and the natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the facts listed in DCC 18.128.015(A)." A fundamental requirement to address the above criteria is that a study area be identified along with the accepted practices in the area and the impacts of the proposed use on those activities. Acknowledging this requirement, the Hearings Officer concluded that the appropriate "study area" here would be the same as she reviewed in the Hogensen application for a dwelling (CU - 03 -45, A-03-15). (H.O., p. 22) The problem is that this "study area" and its accepted practices are not part of the Record in this case to be able to do an analysis of impacts. Furthermore, the study area and accepted practices are currently on appeal to the Land Use Board of Appeals. There is simply no evidence in the Record of this case on the appropriate study area and accepted practices. Because this appeal is "on the record," it is not appropriate for the Board to consider any other evidence on this issue. Additionally, the Hearings Officer did not even address the requirements of DCC § 18.128.015(A) and (B). There is nothing in the Record identifying the natural and physical features of this site, any transportation impact analysis to determine the adequacy of Exhibit Page Lk of 13 Board of County Commissioners August 6, 2004 Page 5 transportation access, or the operating characteristics of the use. There is no identification of what development potential on surrounding properties will be and no analysis of traffic impacts should such development on surrounding properties occur. 3. The Hearings Officer's condition of approval that locked gates be installed and maintained on the Sisters Mainline Road has not been established to be feasible and there is not substantial evidence in the Record to establish feasibility. The Hearings Officer in her decision repeatedly based her conclusions on satisfaction of various approval criteria on the basis that locked gates would be installed and maintained at two locations on the Sisters Mainline Road. This condition was the basis for her findings of compliance with the following criteria: a) Section 18.116.230 - - regarding whether there is compliance with the Transportation Plan, specifically whether this is a "local access road" or in fact connects with a major Forest Service Road; b) Section 18.116.230(A) - - regarding compatibility with existing land use and social patterns and zoning; C) Section 18.116.230(B) - - regarding environmental and wildlife impacts; d) Section 18.116.230(E) - - regarding traffic types and density; C) Section 18.36.040(A) - - regarding significant impacts on forestry; 0 Section 18.36.040(B) - - regarding significant impacts on fire risks; and g) Section 18.128.015(A) - - regarding suitability of the site. But for the Hearings Officer's decision that there would be a condition of installation and maintenance of locked gates, there is no basis in the Record that the above criteria are met. A fundamental requirement of a condition of approval is that it be found to be feasible. There must also be substantial evidence in the Record establishing feasibility. The Hearings Officer failed to make any finding of feasibility. There is no commitment in the Record by the private landowners to keep these gates locked, though the attorney for the Applicants proposed this year- round locked gate solution at the public hearing. (Hearing Tr. at 51, lines 1-7) There is no evidence in the Record that Crown Pacific or other landowners which have rights to use the road have agreed to these gates. The only evidence of Forest Service intent in the Record is a letter from the current District Ranger of the Bend -Fort Rock District of the Deschutes National Forest. The Ranger, however, does not make a commitment in the letter to keep the gates locked. The Ranger could easily change his mind or a new Ranger, or the Forest Supervisor of Exhibit Page _nL of _ Board of County Commissioners August 6, 2004 Page 6 the Deschutes National Forest, or the Regional Forester in Portland could decide to open the gates. There is also no commitment by the County to enforce this condition. The scenario being set of here is the adoption of a condition which allows a development to go forward without due consideration to whether the condition will even be met. Once the development gets final approval, the condition will be ignored or abandoned and there will be no consequence to the development which has already been built. Meanwhile, there will be significant impacts here to forest operations and practices in the area, a significant increase in fire risk and substantial impacts to the Tumalo Deer Winter Range, as all the traffic and development allowed by this public road occurs. This condition is also contrary to the decision of the Board of County Commissioners in the Thomas case where the Board ruled that access should not utilize the Sisters Mainline Road from the south in part to protect the deer winter range. This proposed road dedication would allow access into the same area, but rather from the north. The net effect will be increased development and traffic in the area and damage to the wildlife habitat the Board had said it wanted to protect. CONCLUSION This is a sweeping road dedication proposal that would not only allow the three proposed Thomas parcels but also five more Tweedfam parcels. It will also set the stage for further road dedications and parcels in the County's timber base. The SFPC respectfully requests the Board to reverse the Hearings Officer's decision on the basis that the two Loop Road segments must first receive permits, there must be an adequate study and identification of accepted practices in the study area, there must be findings on the suitability of the site and compatibility of the use with surrounding properties and adequate evidence of the feasibility of the Hearings Officer's proposed condition. Very truly yours, a � PAUL DEWEY PDD:ao cc: Client Nancy Craven Exhibit (j Page gyp_ of 13 Steve Scott & Co, Realtors Bull Springs Tree Farm (Parcel #2) Offering Summary Listing Status: Property ID: Property Type: Subtype: Property: Address: Price: Down Pmt: Sq. Feet Lot Size: Use Type: Investment Active 13188293 Land Residential (Single -Family) Bull Springs Tree Farm. (Parcel #2) Bull Springs Tree Farm Road Bend, OR 97701. United States $1,315,000 N/A 11, 325, 600 260.00 acr. Vacant/Owner-User Factors: Price/ Acre : $5,057.69 Currency: USD Proform Proform Property Description Gorgeous reforested Tree Farm property in Forest deferral with your choice of Mtn. Views awaiting your very private residential estate.Minor partition completion late 2001. Single family dwelling permitted with conditional use on 240 acre minimum. Contiguous 1,306 acres available for $3,300.00 dollars per acre with the, capacity for (5) 240 acre parcels. Location Description N.W. Bend location, approximately (5) minutes from Westside Bend amenities, including the new Summit High School and High Lakes Elmentary school. Quick access to Mt. Bachelor! Contact Information LOUIE HOFFMAN Phone: 541-480-8130 Steve Scott & Co, Realtors 13198293 9/28/2C The information above has been obtained from sources believed reliable. While we do not doubt its accuracy we have not verified it and make no guarantee, warranty or representation about It. It is your responsibility to independently confirm its accuracy and completeness. My projections, opinions, assumptions, or estimates used are for example only and do not represent the current or future performance of the property. The valve of this transaction to you depends on tax and other factors which should be evaluated by your tax, financial and legal advisors. You and your advisors should conduct a careful, independent investigation of the property to determine to your satisfactic the suitability of the property for your needs. Exhibit Page -1 of 13 BULL SPRINGS TREE FARM ,1 F� FOREST _.___ - PARCELS 2 f 3 SER VICE f ` ROAD ` a BULL SPR/NGS RD 'vl* y.+ 20 J. y, 77 / K' / orf 1 * k j A. H. J HNSON RD ` f� r s r r .rat � �, �'�a.lasd�a9' �t'"r :^,� e v - `� jr ''; •"� f .;: ../rr ' ,ar '� ""'n.�, i. " / jlt. Lll Y A. 4'u PARCEL / / JO6 A C± ..w.�'`l+r � :qf �+ �:> .. r � f ' .*•' l.. _ . L...: �"'y 1 f,�.. .... t� f r� i4::. PARCEL 2t Xlx ion J 260 A Cf 1 �,,,,, .:r"#"" C .� :c � j; � i .'i 11k�,rp.� _�,}.� : _ r/ y.� �•�,� 'C ff J + ,T� t+fie .�i I �, �'ga ".,. ��i 9 : «.^—' fi �`.�. r,'� oil' Yy� � � � ^. t� , . , •�` �44 7 — 2000 )s3 �i" fiit � 1 F, f f 4.r••.,.:' -r_ ,u'/, n �+• ..'f; .t'� �j^e ✓ . �� / ' '.F (�,,,.r q �-. {Y�".�'�•�•.= ,"a'(['E C `J tijp��fr � FORES T SER V1 CE RD °/? F RES T SER VICE RD D y � y fitrocu. tw � . :fit-,• ^` ;i. ' / ;Y/ — +` 4t r ' PREPARED BY M k NUNSURVEYORS, ENGINEERS & PLANNERS . HICKMAN, VILLIAMS & ASSOCIATES, INC t } 805 SW INDUSTRIAL WAY, SUITE 10. BEND, OR 97702-1093 PHONE (541) 389-9351 FAX (541) J88-5416 - , SK 0.113610 \0 WG \ EXHIBI T Exhibit [1j trot, Ex r - Page '2 of PERMIT Permission is hereby. granted to the UNITED STATES OF AMERICA, acting by and through the Forest Service, USDA, hereinafter called the permittee, to use, subject to the conditions set out below, the following described lands: Sil1/4, Section 22, T.17S., R.11E., K.M., as shown on the attached map -and aerial photograph map. This permit covers a right-of-way approximately 0.4 miles in length and containing. approximately 3.2 acres and is issued for the purpose of using and maintaining a temporary detour for Forest Road No. 4606, that was constructed by Crown Pacific, for the protection, administration, management and utilization of lands and the resources thereof now or hereafter owned or controlled by the permittee. The detour is required to permit excavation of mineral material from a quarry on Crown Pacific land that is located on and across a portion of existing Forest Road No. road 4606. The Forest Service and the public have rights to use the existing road as authorized by an easement executed by Diamond International Corporation on January 13, 1983. 1. This permit is subject to all valid rights existing on this date. 2. The permittee shall do everything reasonably within the permittee's power to prevent forest fires and will not allow disposal of material by burning in open fires during the closed season established by law without a vritten permit from the proper fire protection agency. 3. The permittee shall fully repair all damage, other than ordinary wear and tear, to roads and trails caused by the permittee in exercise of the privileges granted by this permit. 4. The general public shall enjoy the same use and rights of the detour as iii-e-Inovided in the original easement. 5. This permit shall remain in effect until Road 4606 is re-established upon the original;aliekment at the termination of the mining ooe*ation; provided that the_�ermit=may be terminated or suspended upon breach of any of the conditions herein. 6. The right-of-wa� covered by this permit shall be 33 feet on each side of the centerline as shown on the attached plat with such additional width as required for accommodation and protection of cuts and fills. 7. During the periods when either party uses the road or Permllitee permits use of the road by others for hauling of timber or other materials, the party so using, or permitting such use will perform or cause to be perform, to, contribute or cause to be contributed that share of maintenance occasioned by such use of the road. 8. Use of the 4606 road detour under authority of this permit shall be subject to control by the permittee except that it shall at all times '.be open co use by Crown Pacific as provided in the original easement. page 1 of 2 SFPc EXHIBIT C Exhibit [j Page 3 of 5 Page q of 13 The exercise of any of the privileges granted hereby constitutes acceptance -''of all conditions of this permit. Crown Pacific Limited _12/2/94 (Date) (Signature of suing officer) Executive Vice President (Title) This permit is accepted subject to the conditions herein set forth. Deschutes National Forest '(Date ure) District Ranger page 2 -of 2 Exhibit [2) Page 1 O of 13 C SFPc Ex '1, ,p •y ACOA" EXHIBIT C Page 4 of 5 �..v• . }Z, JULY 16, 199J ., Scale 1"=350'�..'- . • f... s•+• .. mit �•� ? _I ... J 't>r•' r, A •�C • }SW}, Sec. 22, T 115, R 11E ., •'•s•;t'�'- ri'} SITE PLAN V. � • - on Road , .' PHASE 1A. • i ' , oC Proposed Road Relocation • -• .•ii y ••�a ' �•r 3• PHASE IV �;�• � g �,; •� ;e -t• y� r �• s '., PHASE II �., ,• I 50 buffer Area �;!�,: � � ►..j ,. ' •,� .ry �t_ _• I • �r . •,S ; `.• .per_ � r • `Z` • �• • " �'` �•i T' f • .r •;• t. ..lett ,•, ` • p ew ir .� '• r SLR4MARY , • `-,Z ` ..e r I _ __ Existing Pit 6.9 Ac. Phase I 6.0 Phase II 5.0 ' : •' ,�,{ .�`; Phase III 7.5 ri i •' '� �4-,•'x Phase IV 7.5 r •• ?� _ •fid •.r.:��.=J ' �!' .' •' Buffer 5.6 f�i• S..- Haul Roads 1.5 r .. �. }= ' �c • .,r �.. 1�• TOTAL 40.0 Ac.� James E. Bussd, P.E. mmk Consulting Enginecr y�+, :�• } . .;: r S.W.lorado P.O. Box 168 13c -%J. Ureson 97709 ) :• f c0: 389.4650 f"-:: �+' vi=i �;,�.�••�°i,�,.: EXHIBIT C✓ .� f - r . rte•-• •• . �.�- , t �'•`' f �- ': ;'� y, %''fid ' Exhibit [1j age 5 of 5 Page, of .F / `«'�'?I'�'z114r�';,L ,. .e:�r.,Ca�^::•.A.?,: c•'r.:w �': 4� .�.,. �... .. .'�', ,.•:'7.:'c;%i',•` r•i..ti'w.`r.1C�k�ii•.iki ✓•1tK'.'•�4=',.:•. ", Y�'P��. .ai-::?�tjn'•:!7. n:-�c:_. I i f�• r,1��. VOL 707 EASEMENT THIS EASEMENT, dated this Wo day of?gni"It Ar 19R!$frons Diamond _ , International Corporation a corporation of the State of Delaware hereinafter called "Grantor", to the United States of America, hereinafter called "Grantee," WITNESSETH: Grantor, for an in consideration of reciprocal easements received by Grantor, does hereby to Grantee grant and assigns, subject to existing easements and valid rights, a perpetual easement for a road along and across a strip of land, hereinafter defined as the "premises", over and across the lands in the Counties of Jefferson and Deschutes, State of Oregon, as de- scribed on Exhibit A attached hereto. • The word "premises" when used herein means said strip of landwhether ai o ' or not there is an existing road located thereon. Except where it is defined "road" h ti more specifically, the word shall mean roads now existing or hereafter .constructed on the premises or any segment of such roads. .r.' The location of said premises is shown (approximately) on Exhibit B ' attach.ed hereto. . F Said premises" shall be 33 feet on each side of the centerline with such additional width as required for rt to q >, $ accommodation and protection of cuts and fills. If the road is located substantially as described herein, the a rN 4 centerline of said road as constructed is hereby deemed accepted by Grantor ou m and Grantee as the true centerline of the premises granted. If any sub- sequent survey the a CrH of road shows that any portion of the road, although located substantially as described, crosses lands a of the Grantor not de- scribed herein, the easement shall be amended to include the additional lands ►+ vi traversed; if any lands described herein are not traversed by the road as CC �+ a constructed, the easement traversing the same shall be terminated in the manner hereinafter provided. " •r The acquiring agency is the Forest Service, Department of Agriculture.• This grant is made subject to the following terms, provisions, and conditions applicable to Grantee, its permittees, contractors, and assigns: #. Except as hereinafter limited. Grantee shall have the right to use {� •Voad •the on the premises without cost for all purposes deemed necessary or desirable by Grantee in connection with the pro- tection, administration, management, and utilization of Grantee's lands or resources, now or hereafter owned or con -trolled, subject to such traffic -control regulations and rules as Grantee may rea- sonibly inpose upon or require of other users of the road. Grantee shall have the right to construct, reconstruct, and maintain roads within the premises. p,•,��„ ^•.j4 yj j,::'w'7-' �.. � .. —•yam k i t SFPC ;Ex Exhibit Page \2:_ of 15 p. I EXHIBIT D Page 1 of 6 G VOL 1ina 71n If for a period of five (S) years the Grantee shall cease to use, or pre- serve for prospective future use, the road, or any segment thereof, for the purposes granted, or if at any time the Regional Forester determines that the road, or any segment thereof, is no longer needed for the purposes r granted, the easement traversed thereby shall terminate. In the event of such nonuse or of such determination by the Regional Forester, the Regional Forester shall furnish to the Grantor, its successors, or assigns a statement In recordable form evidencing termination. IN WITNESS WHEREOF, Grantor has caused this instrument to be axe- cuted by its duly authorized officers and its corporate seal to be hereunto affixed on the day and year first above -written. DIAMOND INTERNATIONAL CORPORATION Title President w be •..YL • orb; Vice President and Secretary i �.:i. .•aa�•�c7--•vFe.. � .�— �_ �-...,p�,,T-,„ ---•;.:2•:n,xe.;.y}� .;qy�:. - •ti L ()^Oro" SFp ! r Ex , 04 r — Exhibit e _ Page V5 of 13 EXHIBIT D Page 4 of 6