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2007-1217-Minutes for Meeting May 26,1982 Recorded 6/20/2007FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKDS U 1007-1111 COMMISSIONERS' JOURNAL 06/20/2007 11;50;48 AM 1111111111)1111111111111111111 2007-1Do not remove this page from original document. Deschutes County Clerk Certificate Page 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 I t*11P DESCHUTES COUNTY BOARD OF COMMISSIONERS MAY 26, 1982 - REGULAR MEETING Chairman Shepard called the meeting of Deschutes County Commissioners to order at 10:00 AM, May 26, 1982. All three.commissioners were in attendance. Klippel The first item for consideration was a public hearing Acres regarding an LID for Klippel Acres. Neil Hudson, LID Director of Public Works, stated that there were four Hearing remonstrance letters out of 22 property owners. These letters had been submitted to the Board prior to the meeting for their review. Chairman Shepard then opened the hearing. Testimony was given by Roger Austin, Doe Lane. He stated that he was 100% i t of the LID but he wished to make one clarification. He related that he had received a double assessment on his property as his property is being developed as two tax lots. His land is a five-acre parcel, as are many of the other lots in the subdivision. He has requested that this lot be assessed as only one lot. Neil Hudson stated that it has been directed to the Pudic Works Department to assess the lot as one tax lot. He stated that they will be combining the property into one lot as soon as possible. Rick Isham questioned Neil if this would have any effect on the Engineer Report. Neil stated that it would and that each lot assessment is about $150, and the report would change by one lot assessment. The Chairman noted for the record that the Board had received the four remonstrance letters. There were no other comments and the hearing was closed. MOTION: YOUNG moved to accept the Engineers Report and proceed with the LID for Klippel Acres. PAULSON: Second. VOTE: YOUNG: AYE. PAULSON: AYE. SHEPARD: AYE. Hearing At this time a hearing was held on the proposed LID LID for for Equestrian Meadows. Neil Hudson stated that Equest- there were no remonstrance letters received in opposition rian to the LID and that there were no changes to the Meadows Engineers Report. Chairman Shepard opened the hearing. LID Dave Jaqua appeared at the hearing on behalf of the property owners to state'that they were all for the LID. MOTION: YOUNG moved to accept the Engineers Report and proceed with the LID. PAULSON: Second. VOTE: YOUNG: AYE. PAULSON: AYE. SHEPARD: AYE. Page 1 of 11 Hearing: Neil Hudson stated that also on this LID there have LID for been no remonstrance letters received and no changes Williams to the Engineers Report. Chairman Shepard opened the Loop hearing. There were no comments during the hearing. Way The hearing was closed. MOTION: PAULSON moved to accept the engineers report and proceed with the LID for Williams Loop Way. YOUNG: Second. VOTE: PAULSON: AYE. YOUNG: AYE. SHEPARD: AYE. Hearing: Neil Hudson commented that there have been no remonstrance LID for letters submitted for this LID. There have also been no Woodside/ changes on the engineers report. The chairman opened the Radcliff hearing to the public.. There was no testimony given on this hearing. The hearing was then closed. MOTION: YOUNG moved to accept the engineers report and proceed with the LID for Woodside/Radcliff. PAULSON: Second. VOTE: YOUNG: AYE. PAULSON: AYE. SHEPARD: AYE. Hearing: Neil Hudson stated that a property owner of the proposed LID for LID for Knott Road called him stating that they were in Knott opposition to the LID and would submit a letter of Road remonstrance. Neil stated that we had not received a letter from them though. Rick Isham commented that these people were in opposition to the engineer's assessment of the lot and they felt the costs of the lots were too high. The chairman opened the hearing. No testimony was given in regards to the porposed LID. The hearing was closed. MOTION: PAULSON moved to accept the engineers report and proceed with the LID for Knott Road. YOUNG: Second. VOTE: PAULSON: AYE. YOUNG: AYE. SHEPARD: AYE. Appeal The next item on the agenda was a public hearing Burton and appeal in regards to SP-82-7, Bob Burton, which SP-82-7 was heard and approved by the Deschutes County Planning Commission on April 14, 1982. Chairman Shepard asked County Counsel, Rick Isham, to outline some of the legal procedures on which this hearing is to be based. Page 2 of 11 Rick Isham related that this appeal was on a site plan approval made by the Planning Commission. An appeal was filed by Dan Van Vactor representing some people of Sisters, Oregon who felt they were affected by the site plan. Mr. Burton is being represented by Dave Jaqua. Rick stated that the appeal is on the record, in other words, no new evidence can be received. He also stated that statements must be limited to oral argument on evidence submitted at the hearing. Rick suggested that the Board allow each side a certain length of time for argument on preliminary matters and for substance matters. Chairman Shepard suggested that 15 minutes be allowed by each side for oral argument. This was concensus_and the appeal proceeded. DAN VANVACTOR Dan VanVactor suggested that under PL-9 the party with the Burden of Proof should be the first to give oral argument. He felt Dave Jaqua held the burden of proof in this case. RICK ISHAM Rick stated that under PL-9 the burden of proof is upon the one seeking change or rather stated as the burden of persuasion. Rick felt that as Dan VanVactor was seeking a change in regards to the decision of the hearing, that he would have the burden of proof upon him. DAVE JAQUA Dave stated that he agreed with Rick that the burden is on Mr. VanVactor, especially in regards to the standing issue. Rick suggested to the Commission that they allow 15 minutes for each side on preliminary matters and another 15 minutes for each on substance matter. He also requested that they hear each matter separately and that they would not necessarily need to rule on the preliminary matters prior to hearing the substance matter. If they chose to make a decision upon the preliminary matter they would need not get to the substance issues. DAVE JAQUA Dave related that he was only speaking at this time on preliminary matters. The issues that he requested the Commission to consider were the standing of the letter from Dan VanVactor indicating that he was repre- senting certain people in the Sisters area and the appellant who in this case is Alan Litzenberger, Dave then stated that the Ordinance PL-9 requires that in a notice of appeal statement must be made of the interest of the petitioners in order to determine that the petitioner is an effected or aggrieved party. In this case, Dave said, the only allegations in this notice of appeal are not sufficient. Dave related the case to a LUBA case where a party under notice of appeal filed a conclusion not a fact for support. Mr. Jaqua submitted that in this case wherein the notice of Page 3 of appeal states that "they are an effected or aggrieved party" shows only a conclusion and not a fact. Dave also related that the statement in the notice of appeal showing how the error in approval relative to PL-15 is irrelevant, as this decision was not based in accordance with PL-15, but was decided based on the Sisters Urban Area Zoning Ordinance. To sum it up, Dave stated that there are two basic problems with this notice of appeal. First of all, it is a conclusion which violates precedent set with the LUBA case he related to; and secondly, it violates County ordinance as it requires that fact and basis on which it can be determined that they are an effected or aggrieved party. Dave felt this had not been established. DAN VANVACTOR Dan stated that he was present on behalf of the residents of the City of Sisters. He also noted that in objection to the fact that Dave Jaqua had questioned standing of Alan Litzenberger, that no question was raised at time of hearing, and should not be allowed for question during the appeal. Dan related that there are others with standing that have been identified in the appeal response submitted to the Board by Dan that morning. Dan requested that he be allowed to clarify by question what their particular standing is on this case. Dan stated that it is his intent to make clear the standing of the parties, not to introduce new evidence into the record. RICK ISHAM Suggested the Board allow Dan to ask the parties the questions and receive answers then determine after hearing whether the evidence can be used as standing issue or if it was considered to be new evidence. What is boils down to is if the appearance and the letter is sufficient in standing. DAN V.: "Mr. Barclay would you identify yourself please?" HAROLD BARCLAY "My name is Harold Barclay". DAN V.: "Are you a resident of Sisters?" BARCLAY: "Yes." DAN V.: "Do you own property and/or a business within sight and sound of the site plan under discussion today?" BARCLAY: "Yes, I do." DAN V.: "Do you in your opinion feel that you will be adversely effected from the decision of the Planning Commission to approve that site plan in the proposed form?" BARCLAY: "Yes, I do." DAN V.: "That's all I have". Page 4 of 11 Dave Jaqua proposed to ask Harold Barclay some questions at this time. The Board considered it appropriate for him to wait for his turn to rebuttle. DAV V.: "I want to call Pete Leithauser to the stand". "Would you identify yourself, please?" PETE LEITHAUSER: "Pete Leithauser. DAN V.: "Are you a resident of the community of Sisters, Oregon?" PETE: "That's right". DAN V.: "Do you own property in the subdivision within sight and sound of the subject property?" PETE: "That's right." DAN V.: "And, do you have an opinion as to whether or not that property will be effected by the approval of this site plan?" PETE: "Yes." DAN: "How will it be effected?" PETE: "It will come out of by billfold". DAN: "Are you making reference to the roads which must be put in for improvement? Do you feel that if this site plan is approved it will have an economic impact upon your property and yourself?" PETE: "Yes." DAN: "That's all I have. I now call Mr. Lloyd Brown". "Will you state your name please?" LLOYD BROWN: "Lloyd Brown". DAN: "And, are you a resident of the City of Sisters?" LLOYD: "Yes, I am." DAN: "And, you have a business within sight and sound of the site plan?" LLOYD: "Yes." DAN: "I would like to show you a postcard of Mr. Brown's Motel. The property which is under consideration is directly behind his motel. Pete at this time described where the new site plan proposal was to be in accordance with his motel. He explained that this was a quiet relaxing place to come to on vacation, and it would be adversely effected with the new site plan approval due to excessive noise from the shopping center. Page 5 o 11 DAN: "That's all we have, to standing is Mr. name for the record CHUCK HOYT "Chuck Hoyt". DAN: "Are you a resident CHUCK: "Yes, I am". now. Our next witness with regards "buck Hoyt." Would you state your please?" of Sisters, Oregon?" DAN: "And, do you own real property within sight and sound of the, or should I say, are you purchasing real property within sight and sound of the proposed project under review at this time?" CHUCK: "Yes, I am". DAN: "Did you own that real property on or about April 14, 1982"? CHUCK: "Yes, I did." DAN: "On April 14, 1982, did you appear at the Planning Commission hearing?" CHUCK: "I went on record at that hearing as opposing the site plan approval". DAN: "Subsequent to that time, in the notice of appeal. that was filed, did you hire my office to represent yourself and other business interests to prepare that notice of appeal?" CHUCK: "Yes, I did." DAN: And, were you available to sign that document within the 15 day time frame for the appeal?" CHUCK: "Yes, I was." DAN: "By the time that the decision was made were you going to be available at that time. By the time the decision to appeal was made, and you directed me to prepare it, were you available to sign it." CHUCK: "I was out of town for 10 days. Is that what you were referring to? Yes, I was out of town and I was not in contact." DAN: "But you did wish to appeal the file". CHUCK: "Yes, I did." DAN: "And, you did consider yourself a part of that appeal?" CHUCK: "Yes, very much so." DAN: "Do you feel that this if approved would have an adverse effect upon your upon you as a property owner at this location?" CHUCK: "As the site plan stands, it shows the state highway through it which will put undue traffic onto a street in town that is not designed for it." DAN: "What effect do you feel that will have on your property or yourself"? CHUCK: "Well it looks like they have the cart in front of the horse where they are going; to redo the highway. It should be... SHEPARD: I think we are trying to establish I think you are introducing information which is perhaps not appropriate to this particular procedure. I think Mr. Hoyt has directed that he is an effected property owner. DAN: The standing requirements state that we must establish facts. Not just conclusions. That's what Mr. Jaqua asked. We are trying to establish what those facts in his opinion are as to what the economic or aesthetic impact is. ISHAM: Is it my understanding that the Board is receiving this information and will rule on it later for either an inclusion or exclusion? Or, are you just letting this come into the record? SHEPARD: The purpose of this is to establish standing. ISHAM: I would advise the Board on the issue of standing to determine the record on appeal, not evidence being introduced. SHEPARD: That's right. For the record, Dan Van Vactor read Section 8.020 of PL-9 which sets the determination of standing. He stated that since at the prior hearing there was no objection to standing of Mr. Hoyt, and Mr. Jaqua is now objecting at this time, we are trying to establish Mr. Hoyt's legal rights and his opinion are being effected and were effected at that time. Dan stated that that is a necessity for testimony. DAN: "I call Mr. Mike Reed". "State you name for the record." MIKE REED: "My name is Mike Reed". DAN: "and, are you a resident of Sisters?." MIKE: "Yes." DAN:. "You heard Mr. Shepard read a letter that I wrote to the Planning Commission on April 14, 1982-identifying certain people on business interests in the City of Sisters I represented. Did you not?" MIKE: "Yes." Page 7 ©f 11 DAN: "Were you one of those people at that time"? MIKE: "Yes." DAN: "Do you own property..Do you or your family own propert on Hood Street?" MIKE: "Yes." DAN: "Do you feel the property will be effected by the action taken by the Deschutes County Planning Commission on approval of this site plan?" MIKE: "Yes." DAN: "Both economically and aesthetically?" MIKE: "Definitely." DAN: "With regard to the other matters we have raised this morning that are procedural in nature, I need to refer you to PL-9 Sections 4.001 3 and 5. The history of this application is as follows: Mr. Burton filed his request on February 16, 1982. The staff report was not prepared by the date on it's face until March 31, 1982. And the Planning Commission hearing was scheduled and held fourteen days thereafter on April 14, 1982. PL-9 specifically requires in order that people can absorb notice and impact of what is happening upon their property, that certain time frames take place before public hearing is held after the filing of application and after submittal of the staff report. Those time frames are as follows: Within 20 days after the application is filed, staff was to have prepared staff report. This was not done according to date on staff report. Applicant following that 20 day period or following the preparation of the staff report has 30 days from March 31, 1982 to respond to that staff report. That 30 days did not run for the applicant or for anyone else to review the file or to make a determination whether or not it was necessary to oppose or be part of this hearing process. 14 days later the hearing was held and that did not comply with PL-9 section 5 which requires a public hearing to be set not until 10 days after the 30 days have run." Dan then related that this objection, the fact that the staff did not diligently prepare the report and did not use the time frames required in PL-9, did not become an obvious mistake procedurally until the hearing took place and that was the cause of the problem. If the time frame had been proper or we would have had proper notice of it, Dan stated, they would have objected in writing 10 days prior but he stated they could not do so. Dan then responded to Mr. Jaqua's reference of notice of appeal. Dan stated that their notice of appeal is a notice of pleading. All Mr. Jaqua has to know on that notice is that they are appealing. They did not ask for a de novo hearing, are simply doing what the record says. Dan felt that Mr. Jaqua was not correct and propert in stating; that the way the notice of appeal was submitted as incorrect. Page 8 of 11 At this time Mr. Dave Jaqua requested that the Board now allow him to address some questions regarding standing to those witnesses called to the stand by Dan Van Vactor. DAVE JAQUA: "I will address the issue of standing first.` I would like to address my first questions to Mr. Barclay. My initial question to Mr. Barclay is where he was on April 14, 1982. DAN V.: "I would object to this beyond the scope of direct examintion. " DAVE: "The purpose of the question is that Mr. Van Vactor siibmitted a letter to the Planning Commission indicating he represented some business interest in the Sisters community. The question is who did he represent. If the Board is going to consider this letter it needs to be established just who can be represented today. There was some discussion on:this and Dan Van Vactor asked Rick Isham to respond to this from the legal standpoint. Rick Isham stated that he advised that the Board allow Dave to recall those witnesses which Dan called as to questions relative to the issue of standing. He felt that the scope of the questions only on standing should be allowed as evidence received as rebuttle evidence only. Chairman Shepard stated that the hearing would proceed on that basis. DAVE: "Again I want to question Mr. Barclay where he was on April 14, 1982?" BARCLAY: "Wickumberg, Arizona." DAVE: "And prior to that time did you place a telephone call to Mr. Van Vactor." BARCLAY: "No." DAVE: "When was the lst time you talked to Mr. Van Vactor about this appeal." BARCLAY: "Somewhere around a week ago." DAVE: "Would it have been after the lst of May then?" BARCLAY: "Yes." DAVE: "You also indicated that you own property within sight and sound. Which particular piece of property were you referring to?" BARCLAY: "Well I have six lots on Hood Street". DAVE: "Are they in sight of the project or are they in sight of just Hood Street?" BARCLAY: "I think they are within sight of the project." Page 9 of 11 DAVE: "OK, And this project you understand that this does not deal with the whole couplet system." Rick Isham stated to the Board that he felt this question to be irrelevant. Dave restated the question asking Mr. Barclay is he felt that his lots would be affected adversely by the project. Mr. Barclay stated that he felt it would. He stated that there would be about $10,000 worth of improvements going into the lots and if an LID is formed the County Tax Department has indicated to him that it would raise his taxes. There was some discussion at this time regarding the Hood Street Couplet. Chairman Shepard stated that this hearing was not on the Hood Street Couplet but on a site plan appeal and suggested the hearing proceed on the right track. DAVE: "Pete Leithauser". "State your name." PETE: "Pete Leithauser". DAVE: "Did you contact Mr. Van Vactor prior to just writing a letter to the Planning Commission on April 14, 1982?". PETE: "I never contacted no-one." DAVE: "When was the first time you talked with Mr. Van Vactor about this matter,'today or prior to today?" PETE: "Well I don't know that outside the council meeting, I don't think I've discussed anything lately. DAVE: "Is he representing you here today?" PETE: "Yes." DAVE: "At what point did you make arrangements with him to have him act as your attorney for purposes of this appeal." PETE: "Well, I didn't ask him to act as my attorney. The group did." Mr. Leithauser showed the property he owned on a map and related it to the site plan. DAVE: "Lloyd Brown. You own some adjoining property?" LLOYD: "Yes." DAVE: "At what point did you initially contact Mr. Van Vactor?" LLOYD: "Well,.. this morning." DAVE: "Had you talked to him before this morning?" LLOYD: "At the meeting at Sisters." DAVE: "You are representing; yourself then?" LLOYD: "Well, in a way, yes." Dave asked Mr. Brown other questions pertaining to the site plan and the effects of it. Dave asked similar questions of Mt% Chuck Hoyt and Mr. Mike Reed. Page 1 It was noted that Mr. Mike Reed had an unrecorded interest in the property owned by his family on Hood Street. He is not a direct owner. Dave Jaqua then wished to make comment in regards to statements by Dan Van Vactor regarding PL-9. Dave stated that in Section 4 of PL-9 there states certain periods of time for receiving events. He didn't feel that there were time line maximums to follow, but that it relates to certain limitations. He didn't feel there had been any violations. Chairman Shepard at this time noted that this completed the end of the preliminary. Dave Jaqua requested for the record that he questioned some of the sight and sound from some of the property as discussed and wished to have the opportunity to present a map to the Board solely on the issue of standing to be used a a piece of physical evidence. The Board considered that the map would be termed as new evidence, which is not allowed at the appeal. Chairman Shepard suggested that perhaps each party provide a written findings on the preliminary issues on this appeal to be submitted to the Commissioners office by Friday, May 28, at 4:30 P.M. MOTION: YOUNG moved to limit argument to written findings on preliminary issue to be submitted to the Board of Commissioners by 4:30 PM on Friday, May 28, 1982, and that the appeal be continued for substance issue on Wednesday, June 2, 1982. PAULSON: Second. VOTE: YOUNG: AYE. PAULSON: AYE. SHEPARD: AYE. Being no further business the meeting was adjourned. /tr Page 11 of 11