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2007-1104-Minutes for Meeting May 13,1981 Recorded 6/20/2007FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKDS yd 2OV7-1104 COMMISSIONERS' JOURNAL 06/20/2007 10:56:23 AM Do not remove this page from original document. Deschutes County Clerk Certificate Page f_ If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page DESCHUTES COUNTY BOARD OF COMMISSIONERS MAY 13, 1981 - REGULAR MEETING Chairman Paulson called the meeting to order at 10:00 a.m. Commis- sioner Young and Commissioner Shepard were also present. Amendments Commissioner Young said that Item #8 on the agenda to the Agenda is to be postponed until May 20, 1981. There were no amendments. Public Hearing This was as outlined in Resolution #81-015. Chairman regarding Land Paulson read this by title only. Vince Genna, Bend Exchange with Metro Parks and Recreation Department, briefly explained Bend Metro the location of the lands involved. The two parcels Parks and Re- involved are one 30-acre parcel north of Skyline Park creation and a 36 acre parcel downstream from Shevlin Park fish hatchery. It is the Park Department's intention to someday build a resident camp for youngsters at the site. Rick Isham, County Counsel, said that the property right being exchanged is the right of reverter and not the actual property. The right of reverter is being trans- ferred from the County's property to that property near Shevlin that the City is acquiring from Brooks Resources. Today is the final hearing on this issue. Chairman Paulson read aloud the Resolution in its entirely, except for the legal descriptions. MOTION: SHEPARD moved to sign this Resolution #81-015. YOUNG: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. Chairman Paulson called for any further testimony. There were no further comments. MOTION: SHEPARD moved to prepare an order to be signed. The land exchange is approved and an order will be drawn. YOUNG: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. Discussion Chairman Paulson said that the Board had received fur- and possible ther correspondence relating to this since the last meeting decision on when this was discussed. He read aloud the names of Solid Waste those sending letters relating to this. They were: Ordinance James A. and Beverly A. Cook, a petition from residents of Four Seasons Mobile Park, Perry Herford, Kay Franklin, Regina Franklin and Frances Franklin Meisner, and Kim Ward. Lou Dvorak asked that County Counsel's file be submitted to the record. Rick Isham consented. The file entitled "Solid Waste Advisory Committee" is part of the official file. After some discussion of the order of testimony and the time limits allowed, Chairman Paulson called for testi- mony from Lou Dvorak, representing the Inn of the Sev- Page 1 of 8 1~ Deschutes County Board of Commissioners May 13, 1981 - Regular Meeting enth Mountain. Mr. Dvorak came forward. He said that the Inn of the Seventh Mountain was a special question in relation to the Solid Waste Ordinance. He said that the Inn's case is based on a letter to the Board from him dated January 30, 1981. He said that for about four years the Inn has been hauling their own garbage from the dumpsters on the premises that are being filled up by the Inn's guest. He said that under their management contract the Inn's Management company Inn gets possession of any condo- minium unit under contract. The Inn became dissatis- fied with Sun Country Disposal and decided that they wanted to dismiss them from their employment as gar- bage hauler. He said that that garbage is the Inn's own garbage, as an overnight hotel guest or a restaurant customer is not responsible for their trash removal, but that is the responsibility of the Inn. He said that this problem had arisen in 1976, and an agreement was reached between the Inn and Sun Country Disposal allowing the Inn to haul the trash from the condomin- iums themselves, but Sun Country would still haul trash from the restaurant and the convention hall. The Inn would like to begin hauling trash from the restaurant and the convention hall as well. They are also asking that their activity for the past four years of hauling the trash from the condos be recognized as a legal practice. He felt that any adverse effects of allowing this had been blown out of proportion in testimony against the proposal. He said that one way of arguing a legal question is to make it seem out of proportion and more earth-shaking than it really is. He briefly discussed the definition of the ordinance. He said that the definitions raise two questions:(1) Is the Inn, in taking the trash from the condo units to the dump, hauling their own trash; It it is found to be their own trash, then it is permissible under the ordinance. He felt that because of the ownership agreement where the business takes possession and control of the unit, it is their own trash. He said that their- situation is similar to that of an absentee motel owner and a resident manager. He said that under Section 10.01 and 10.03 the ordinance is enforceable against the person in possession. He felt that this established their ownership of the trash. The second question raised is whether or not the Inn receives compensation for hauling the trash. He felt that the language of the ordinance indicated that its meaning was whether or not money changed hands. It would not, in the case of the Inn. Mr. Dvorak concluded by submitting proposed findings of fact for the record. Next, Chairman Paulson called for comments from Mr. Martin Hansen, attorney representing Romain Village Mobile Home Park. Mr. Hansen came forward and explained that he is also presenting testimony on behalf of Crown Villa Mobile Park. He said that he is only referring Page 2 of 8 ,.Deschutes County Board of Commissioners May 13, 1981 - Regular Meeting to the rental portions of Crown Villa and Romaine Village. He felt that this was basically a question of the ordin- ance's;intent when it was written; was the original intent to allow private persons and private businesses to remove their own trash. He felt that the only prohibition was haiAling trash for compensation, unless done by a franchise. He felt that the ordinance was not as carefully drawn up as it could be to preclude the ordinance from being mis- construed. He said that he had prepared an amendment which would clear this up but not change the intent or meaning of the ordinance. He briefly discussed the amendment. He said that they are bringing this up on behalf of private businesses who are not in the trash business. They are interested in this because of State law which requires them to keep the trash down, making them directly respon- sible. Next, Warren Klug, Inn of the Seventh Mountain, came for- ward. He said that all the parties involved support the ordinance to keep the county clean. He said that by allow- ing businesses to haul their own trash, they are satisfying the intent of the ordinance. He said that they want the amendment to confirm the right of the individual business to remove their own trash. As a business catering to their customers they are responsible for removing the trash. He said that the Inn supports the the suggestions of Mr. Hansen. Del McClavden, 154 N.E. Franklin, Bend, came forward. He is a motel owner. He said that he is in support of Mr. Hansen's amendment proposal. He added that he would like to see the Board of Commissioners look into the ordinance. Alice Teater, manager of Green Pastures Mobile Home Park, came forward. She read aloud a letter from herself and Arthur S. Teater_expressing support of Mr. Hansen's amend- ment. Fran Franklin-Meissner, Country Meadows Mobile Park, came forward. She saidthat she supports Mr. Hansen's amendment. She said that it is essential to their clean park that they haul their own trash. Next, Mike Mills, representing Sun Country Disposal, came forward. He felt that the Board should consider the ori- gins of the ordinance. He had spoken with Dave Hoerning, Director of Public Works at the time the ordinance was adopted, about the intent of the ordinance. He had also been in contact with Roger Emmonds, from the State of Oregon, who had also been active in the development of this ordinance. Mr. Mills said that Mr. Hoerning had relied on Mr. Emmonds when preparing the ordinance. After the ordin- ance was adopted the people who were hauling trash got together and decided who would serve what area with the Board. He said that since that time there have been two two decisions to interpret the ordinance. He said that at one time the Inn had been ruled against in hauling their own trash. Another decision since that time was made for Page 3 of 8 Deschutes County Board of Commissioners May 13, 1981 - Regular Meeting Black Butte Ranch. He said that Lou Dvorak was County Counsel at that time and he told the attorney that the unit owners at Black Butte could not haul their own trash. He said that the Inn and Romaine Village are doing this so they can make more money. He said that one of the reasons for the ordinance was to cut down on traffic and pollution. He felt that this was a factor to be considered. Also he said that the past two inter- pretations of the ordinance should have precedent. He said that this is a model ordinance and has been inter- preted in other counties and was found that landlords can't haul tennant';s trash. He said that tennants would have three options under this proposal. One would be to sign up withthe rental agreement and have them haul their trash, have the franchiser haul their trash, or haul it themselves. This would create duplication if that person decided to have the franchiser haul the garbage, and an added expense to the franchiser, obligating him to make the trip for one or just a few customers. He said that the franchiser would be forced to maintain expensive equipment and be available if in the future the management decided to hire the franchiser to haul all the trash. He said that this will also decrease the amount of fran- chise fees the county currently receives. He said that the Solid Waste Advisory Committee had made a recommendation to the Board that they deny the request, and he felt that this recommendation should be given weight in their deci- sion. He said that the franchises will need compensation if the franchises are decided against without due process, because they need to maintain their equipment. He sug- gested using the grandfather clause for Mr. Ward. Next, Roger Emmonds, OSSI in Salem, came forward. He explained the background of the ordinance. He said that in return for the service out in.the county the franchise gets certain economic protection. He said that this issue would not be before them today if two people were not trying to make a change. He said that Clackamus County faced the same issue. Their Sanitarian made a study of several businesses, some who hauled their own trash and some who did not. He said that there was no difference in the cost of self-haulers and franchise-haulers and there was some problem with self-haulers because garbage was accumulating. He said that if the franchiser has to make a run to haul a small amount of trash, since the fees are regulated, who will make up the difference? He said that the Inn and Romaine Village will be receiving compensation, although indirectly. He suggested that they follow the recommendation of the Solid Waste Advisory Committee. Lou Dvorak came before the Board for a short rebuttal. He said that with respect to the Black Butte matter, he had spoken to Paul Speck who had been involved. There had been a misunderstanding in that when they were advised they could not haul their own trash, it was believed that a maintenance company would be doing it, not the homeowners association. He said that this was a different set of Page 4 of 8 I7eschutes County Board of Commissioners May 13, 1981 - Regular Meeting circumstances and was not a precedent. Another reason this was advised against was that service could be ordered and what the Inn proposes to do today would not make that kind of service available. Also in the former case, pay- ment for the service would be required, with the Inn it will not. That is why he had advised that this would not be legal. Warren Klug addressed the allegation that the only reason they are doing this is to make money. He said that their reason is economic, and that there was nothing wrong with that. He added that the Inn puts money into the local economy and pointed out that they have to pay a $36 per hour rate if they have to call for special trash service, during conventions for example. Martin Hansen then came forward for rebuttal. He did not think that most businesses will begin hauling their own trash. He said that it will still be under the County's power to insure that trash is disposed of properly. He said that currently only two mobile home parks are on the franchise system, so the loss of that business would not be substantial. Next, Mike Mills came forward for rebuttal. He asked that the Board look to the future for the effect of the decision they are being asked to make today. He explained the cost involved of having more trucks on the road. He said that he sees not difference between a management company being told they could not haul their own trash in 1976 and the one that wAnts to do the same thing today. He said that they will be charging fees within the fee structure of the management company. Chairman Paulson closed the testimony at this point, and called for questions from the Board. Rick Isham asked Mr. Mills about his statement regarding compensation for loss of business for the franchises. Was that in response to an interpretation or an amendment to the ordinance or both? Mr. Mills replied that it was in response to both. Mr. Mills~sexplained that he believes that when the ordinance was passed in the franchise agreement that is a property right that should be compensated if that property right is taken away from them. Mr. Isham asked what further action, if any, would be taken. Mr. Mills responded that he was not at liberty to speculate on that at this time. Mr. Isham recommended to the Board that they should not amend an ordinance if that will effect an existing con- tractual right. There was further discussion on the matter between the Commissioners. MOTION: YOUNG moved that it-is the.Board of Commissioner's interpretation of the Solid Waste Ordinance is tht.t the owner and/or person in possession or control of a premise has the right to haul trash generated on those premises. SHEPARD: Second. Page 5 of 8 rUeschutes County Board of Commissioners May 13, 1981 - Regular Meeting There was some discussion on the meaning of control as used in the motion. There was some further minor dis- cussion. Mr. Isham suggested taking the motion under advisement and act on it later. There was some discussion about the question of fees, not being mentioned in the motion. There was some further discussion. MOTION: SHEPARD moved that they table the motion to allow Counsel to examine the motion. PAULSON: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: NO. The Board agreed to proceed with the rest of the agenda, and then recess until 2:00 p.m. of the same day to con- sider this item. Discussion:-. This was not discussed as the Public Works Department and possible had not planned to discuss it at this date and was mis- decision on takenly placed on the agenda. Crest Ridge Estates LID Consideration This item had been continued from May 6, 1981. Gary Judd of Extension of the Road Department explained that Mr. Rail will be of PP#494, required to improve the access road to rural local standards. Double R This is County Road #3071. The road is cindered so they Estates, Sam will have to widen it out or deepen the cinders. He said Rail that that is the Road Department's recommendation. They have access off of Highway 20 with a culdesac, but lot #1 of Block #3 is not served by the culdesac. Sam Rail, applicant, came forward. He asked if he would be required to improve the county road. He felt that since others are using that road for access, he should not be required to improve the toad. Craig Smith, Planning Department, ex- plained that Marsha Heggeley's subdivision is being served by this road. He explained that this road does not go through her subdivision. Chairman Paulson said that the Board cannot make a variance on the Hearing's Officer's decision. The road in question skirts Mr. Rail's subdi- vision except for one lot. Neil Hudson said that Mr. Fail would be required to to improve the road clear through to the southerly lot of his property. He said that this is a standard requirement. MOTION: SHEPARD moved to approve the recommendation of May 12, 1981 contained in the memo from Gary Judd. PAULSON: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. Page 6 of 8 • M Deschutes County Board of Commissioners ' May 13, 1981 - Regular Meeting Discussion Neil Hudson explained that Mike Maier, Director of regarding Administrative Services, had decided to modify this Reclassifi- job description. The only difference was to require cation of two years of experience, instead of the previous five Lead Services year requirement. Mr. Maier said that they had agreed position to place the salary range at Range 14. MOTION: YOUNG moved to reclassify the Lead Servicer operator to a position of an equipment service supervisor with a range step 14. SHEPARD: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. Discussion This item was postponed until the following Tuesday's regarding meeting. Extension of Subdi- vision Plats and Parti- tions Discussion This was postponed until the May 20 meeting. of extension for MP-79-173 Earl Hannen, Applicant Other Staff/ MOTION: SHEPARD moved to amend the agenda to include Public Con- Order #81-261. cerns YOUNG: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. This was regarding the American Lane Bridge. Mr. Hudson said that bhis bridge,-.was not very well constructed. He said that the rail is falling off and there is a possibility of a child falling into the canal, so they want to put a guard rail on the bridge. He said that they are charged with this under the ORS. This bridge is on a public way. The.Order is for the expenditure of funds for this purpose. MOTION: SHEPARD moved to adopt order #81-261. YOUNG: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. At this time the meeting recessed until 2:00 p.m.to con- sider Item #3. 2:00 P.M. Chairman Paulson reconvened the meeting at 2:00 p.m. Mr. Isham explained briefly what he had concluded while researching the ordinance. He said that he had concluded that a private person could haul their own refuse. He said that a "person" as defined in the ordinance included individuals, associations, corporations, firms, partner- ships and joint stock companies. As to the word private, Page 7 of 8 y Deschutes County Board of Commissioners K' May 13, 1981 - Regular Meeting there was no definition within the ordinance. In regard to the question of the word "compensation" not being included in the motion, it appears that the intent is that an owner hauling refuse for another person for com- pensation still would not be allowed. He said that he believes the motion does do what the Board intends it to do as it is worded. There was some further discussion. MOTION: YOUNG moved that the motion be taken off of the table and brought back on the floor. SHEPARD: Second. VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: : AYE. Question called for on the motion: VOTE: PAULSON: AYE. SHEPARD: AYE. YOUNG: AYE. Being no further business, the meeting was adjourned. DESCHUTES COUNTY BOARD OF COMMISSIONERS Robert C. Pau son,.Jr., Chairman ay C: Shepard,__Commiss ' CAL ert A. Young, ommiss' er /ss Page 8 of 8