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2007-1666-Minutes for Meeting November 08,2007 Recorded 12/4/2007COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS ~J ~~~11.1666 COMMISSIONERS' JOURNAL 1Z/04/2001 09;4;30 AM 111111111 loll 111111111110111 oil 2007-16-96 Do 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 C) Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS THURSDAY, NOVEMBER 8, 2007 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Michael M. Daly and Tammy Baney; Commissioner Dennis R. Luke was out of the office. Also present were Chris Bedsaul, Community Development; Laurie Craghead, Legal Counsel; and five other citizens. No representatives of the media were present. Chair Daly opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2007-155, Accepting an Appeal of the Hearings Officer's Denial of a Legal Access Application (Appellant: Sporalsky). Chair Daly read the opening statement. Regarding conflicts of interest, ex-parte contacts, prior hearing observations and bias, none were declared. No challenges from the audience were offered. Chris Bedsaul gave a brief overview of the item, which relates to a proposed two-lot partition that was denied by the Hearings Officer on the basis of inadequate physical access. The applicants have since obtained the rights of way needed to provide adequate legal access. Laurie Craghead added that the applicant submitted a draft findings and decision for the Board's consideration. The County had a small strip of land that was purchased by the adjacent property owners, and the required easements have been granted by other property owners. Minutes of Board of Commissioners' Business Meeting Thursday, November 8, 2007 Page 1 of 2 Pages She recommended approval, with the following changes: • Add the legal counsel and recording stamp box at the top. • Remove the strike-throughs. • On page 5, split the paragraph. • Correct wording to "finds" and not "fines" . Correct the signature block. Bruce White, representing the applicant, asked that the packet he submitted be part of the record. The access issue has been resolved and a copy of the deed is now in the record. The neighboring property owners have been cooperative. Being no further testimony on behalf of the applicants and no opponent testimony offered, Chair Daly closed the hearing. BANEY: Move approval of the application, findings and decision with the changes recommended by Legal Counsel. DALY: Second. VOTE: BANEY: Yes. DALY: Chair votes yes. 3. Before the Board were Additions to the Agenda. None were offered. Being no further items to come before the Board, Chair Daly adjourned the meeting at 10:15 a. m. DATED this 8th Day of November 2007 for the Deschutes County Board of Commissioners. Michael 4 y Daly, Ae uke, Vice Chair ATTEST: Tammy B.an'ey, Cori issioner Recording Secretary Minutes of Board of Commissioners' Business Meeting Thursday, November 8, 2007 Page 2 of 2 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.oriz BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., THURSDAY, NOVEMBER 8, 2007 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up card provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. A PUBLIC HEARING and Consideration of Signature of Order No. 2007- 155, Accepting an Appeal of the Hearings Officer's Denial of a Legal Access Application (Appellant: Sporasky) -Chris Bedsaul, Community Development Department 3. ADDITIONS TO THE AGENDA tsoara or ~_;omrmssioners' Business Meeting Agenda Thursday, November 8, 2007 Page 1 of 1 Pages FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572) Monday, November 5 2007 10:00 a.m. Board Land Use Meeting 1:00 P.M. Opening Ceremony - New Sunriver/Highway 97 Interchange - Great Hall, Sunriver 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, November 7 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, November 8 2007 7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers 10:00 a.m. Public Hearing on Sporalsky Measure 37 Appeal 1:00 P.M. Work Session regarding Potential Land Trade of County Property for Department of State Lands Property (South Redmond Tract) Friday, November 9, 2007 7:00 a.m. Meeting with Bend Chamber of Commerce - Legislative Policy Council Monday, November 12, 2007 Most County offices will be closed to observe Veterans' Day. Tuesday, November 13 through Friday November 16, 2007 Association of Oregon Counties' Conference Monday, November 19, 2007 12:00 noon Regular Meeting with Department Heads (at Solid Waste Dept. - Knott Landfill) 1:00 P.M. Ribbon Cutting Ceremony - New Knott Landfill Facility Board of Commissioners' Business Meeting Agenda Monday, November 5, 2007 Page 2 of 7 Pages 1:30 p.m. Administrative Work Session for the week - could include executive session(s) - at Solid Waste Dept. Tuesday, November 20, 2007 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee 2:00 p.m. Budget Committee Meeting Thursday, November 22, 2007 Most County offices will be closed to observe Thanksgiving. Friday, November 23, 2007 Most County offices will be closed (unpaid day of~ f}. Monday, November 26, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 5:00 p.m. Public Hearing - Amateur Radio Tower Ordinance Wednesday, November 28, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, November 27 2007 12:00 noon Regular Meeting of the Audit Committee 3:00 p.m. Meeting with Mental Health Director and ABHA Representative Wednesday, November 28, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 4:30 p.m. Bend Chamber Business After Hours at New Knott Landfill Facility Board of Commissioners' Business Meeting Agenda Monday, November 5, 2007 Page 3 of 7 Pages Monday, December 3, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, December 5 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, December 6, 2007 10:00 a.m. District Attorney Update 11:00 a.m. Community Development Department Update 1:30 p.m. Road Department Update Wednesday, December 12, 2007 10:00 a.m. Board of Commissioners' Meeting for the week 1:30 p.m. Administrative Work Session for the week - could include executive session(s) Thursday, December 13, 2007 1:00 P.M. Health Department Update 2:00 p.m. Mental Health Department Update Monday, December 17 2007 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, December 18, 2007 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, December 19, 2007 10:00 a.m. Board of Commissioners' Meeting for the week 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, November 5, 2007 Page 4 of 7 Pages Thursday, December 20, 2007 9:00 a.m. Fair & Expo Department Update 10:00 a.m. Juvenile Department Update 1:30 p.m. Sheriffs Office Update, at Sheriffs Office Tuesday, December 25 2007 Most County offices will be closed to observe Christmas Day. Thursday, December 27, 2007 4:00 p.m. U.S. Highway 97 - North Corridor Steering Committee Meeting Monday, December 31 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, January 1 2008 Most County offices will be closed to observe New Years' Day. Wednesday, January 2 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, January 7 2008 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, January 9 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, January 10, 2008 7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers Board of Commissioners' Business Meeting Agenda Monday, November 5, 2007 Page 5 of 7 Pages Monday, January 14 2008 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, January 15, 2008 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, January 16, 2008 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, January 17, 2008 7:00 a.m. Meeting with Bend Chamber of Commerce - Legislative Policy Council Monday, January 21, 2008 Most County offices will be closed to observe Martin Luther King Jr. Day Wednesday, January 23, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, January 28, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, January 29, 2008 1:00 P.M. Commission on Children & Families' Update Wednesday, January 30, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, November 5, 2007 Page 6 of 7 Pages Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. tsoara of commissioners' Business Meeting Agenda Monday, November 5, 2007 Page 7 of 7 Pages BOARD OF COMMISSIONERS PRE-HEARING STATEMENT Introduction This is a hearing on an appeal of the Hearings Officer's decision on application no. MP- 07-11 (A-07-14). The applicant has requested approval of a two lot partition in the Urban Area Reserve zone, based on land use regulation waivers approved by the State of Oregon and Deschutes County. This application was previously considered by the County Hearings Officer after a public hearing held on June 12, 2007. Evidence and testimony were received at that hearing. This hearing is being conducted in accordance with the procedures established under Title 22 of the Deschutes County Code, and is being heard de novo before the Board. Burden of proof and Applicable criteria The applicant has the burden of proving that they are entitled to the land use approval sought. The standards applicable to the applications are listed on the copies of the Hearings Officer's decision located at the table next to the entrance to this hearing room. Failure on the part of any person to raise an issue, with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes, appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Hearings Procedure The procedures applicable to this hearing provide that the Board of County Commissioners will hear testimony, receive evidence and consider the testimony, evidence and information submitted into the record, and will be the basis for their decision. The record as developed to this point is available for public review at this hearing and placed before the Board. Order of Presentation The hearing will be conducted in the following order. The staff will give a staff report of the prior proceedings and the issues raised by the applicant/appellant. The applicant will then have an opportunity to make a presentation and offer testimony and evidence. Proponents of the appeal will then be given a chance to testify. When all other proponents have testified, opponents will then be given a chance to testify and present evidence. After both proponents and opponents have testified, the applicant will be allowed to present rebuttal testimony, but may not present new evidence. At the Board's discretion, if the applicant presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. The Board may limit the time period for presentations. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified, but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. Continuances: The grant of a continuance or record extension shall be at the discretion of the Board. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing or leave the written record open for at least seven days for additional written evidence. If at the conclusion of the hearing the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. Pre-hearing Contacts Biases Conflicts of Interests 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. Does any party wish to challenge any Commissioner based on ex-parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) ~VTES C gG Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of November 8,2007, 10:00 am Please see directions for completing this document on the next page. DATE: October 30, 2007 FROM: Chris Bedsaul, Associate Planner. CDD 383-6719 TITLE OF AGENDA ITEM: Public Hearing of Appeal of Hearings Officer's denial of File MP-07-11, Dennis and Virginia Sporalsky' application for a 2 parcel partition - limited de novo on the issue of legal access to proposed Parcel 1. PUBLIC HEARING ON THIS DATE? YES. BACKGROUND AND POLICY IMPLICATIONS: The Sporalsky's applied for a land partition request to create two (2) parcels in the Urban Area Reserve (UAR-10) zone following approval of measure 37 claims by Deschutes County (Order 2006-148) and the State DLCD (Claim No. M129460). Approval of the partition would create two (2) legal lots of record and place both existing dwellings on legal lots in UAR-10 where single-family dwellings are an outright permitted use. The Hearings Officer denied the request to create the two (2) new parcels eligible for single-family dwellings due to failure of the applicant to demonstrate both proposed parcels will have adequate legal and physical access. Since the Hearings Officer decision, the applicant has acquired title to the portion of Chaney Road previously owned by Deschutes County to provide for legal and physical access to Parcel 1. The applicant has agreed to restart the 150-day decision clock. The BOCC has agreed at the business meeting on October 29, 2007 to hear an appeal de novo hearing limited to the issue of legal access by approval of Order 2007-155. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REOUESTED• Staff recommends that the Board conduct a de novo review hearing during the meeting on November 8, 2007 and limit the hearing only to the issue of legal sufficiency of access to Parcel 1 along Chaney Road. ATTENDANCE: Chris Bedsaul. DISTRIBUTION OF DOCUMENTS: Copy to Chris Bedsaul ASAP in order for order to be sent with public notice of hearing, if any. Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM October 30, 2007 To: Deschutes Board of County Commissioners From: Chris Bedsaul, Associate Planner Subject: Appeal of Hearings Officer's Denial of MP-07-11; A-07-14 (Sporalsky) BACKGROUND The applicant's, Dennis and Virginia Sporalsky filed an application for two (2) lot partition based upon a Measure 37 claim conditionally approved by Deschutes County and the State of Oregon. The applicant has submitted a tentative plat drawing depicting the proposed two (2) lots, containing 0.93 and 1.68 acres, with access to each individual lot being created via Glen Vista Road or Chaney Road. The application was referred to the Hearings Officer and heard on June 12, 2007. The Hearings Officer issued a decision denying the application on September 25, 2007. A timely appeal was filed by the applicant on October 8, 2007. The decision to deny the application is based on the Hearings Officer's findings that the applicant failed to demonstrate both proposed parcels will have adequate legal and physical access. The 150-day time limit has been restarted again by the applicant in a letter dated October 8, 2007. The applicant did not acquired legal and physical access for Chaney Road prior to the Hearings Officer's decision. Staff made a recommendation to the Hearings Officer for conditional approval of the application. Copies of the notice of intent to appeal, staff report and Hearings Officer's decision are attached for your review. APPEAL The notice of appeal describes relevant background facts and the reasons for appeal. The appellant requests a de novo review limited to the issue of legal sufficiency of access to Parcel 1 along Chaney Road and the 150-day time limit has been restarted by the applicant in a letter dated October 8, 2007. The Board should review the notice of appeal to determine that it is sufficiently specific so that the Board is able to respond to and resolve each issue in dispute [see: 22.32.020(A)]. Quality Services Performed with Pride If the Board decides to hear the appeal, the review shall be on the record unless the Board, under its own motion, decides to hear the appeal de novo [see: 22.32.027(B)(1) and (3)]. The Board may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal [see: 22.32.027(B)(4)] DECLINING REVIEW If the Board of County Commissioners decides that the Hearings Officer's decision shall be the final decision of the county, then the Board shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the Board's decision to decline review. In determining whether to hear an appeal, the Board may consider only: 1. The record developed before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of staff [see:22.32.035(B) and (D)] STAFF RECOMMENDATION The Hearings Officer's denial was based upon failure to satisfy the legal access requirements for the Partition at the time of a public hearing or close of the record. The applicant's attorney has obtained the required legal right-of-way necessary to satisfy the legal access issues raised by the Hearings Officer immediately following the close of the record. Staff believes that the applicant acted in good faith to complete the requirements of legal access and unfortunately due to procedures in the acquisiton of the legal access was not able to provide legal access prior to a final decision by the Hearings Officer. For these reasons staff recommends that the Board conduct a de novo review hearing limited to the issue of legal sufficiency of access to Parcel 1 along Chaney Road. SCHEDULE The decision to grant a partial de novo hearing is at the Board's discretion. If the Board agrees to hear this appeal, Staff recommends that the Board conduct a hearing on this appeal during the regular meeting on November 8, 2007.