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2016-431-Minutes for Meeting August 10,2016 Recorded 8/26/2016DESCHUTES—COUNTY—OFFICIAL RECORDS— I. 2016.431 NANCY BLANKENSHIP, COUNTY CLERK V Y tri COMMISSIONERS' JOURNAL 08/26/2016 04:13:53 PM Illllllllllllllllllll 1111 I III 2016-431 For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, AUGUST 10, 2016 Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Erik Kropp, Deputy County Administrator; and Dave Doyle, County Counsel. Attending for a portion of the meeting were Whitney Hale, Communications; Matt Martin, Peter Russell, and Will Groves, Community Development; Judith Ure, Administration; and approximately twenty other citizens. Chair Unger opened the meeting at 1:30 p.m. 1. Redmond Economic Development Inc. Presentation and Update. Jon Stark and Travis Browning of REDI thanked the Board for its economic development assistance. Mr. Browning said he spent eight years on the REDI board, and was past president. They then gave a PowerPoint presentation, highlighting past and current success stories. They said there are about 30 pending projects that may create up to 1,000 jobs. The industries are diverse, which is important; and with a good mix of company sizes. They noted that there is a significant drain on industrial type property inventory, which is now at 4.7% vacancy. They are trying to engage in ways to meet this demand. There are less than eleven already built properties available for this kind of use. They are looking at build -to -suit and are involving developers who do this kind of work, as the return on investment is getting close. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 1 of 12 For lead generation, they are part of various groups that work towards economic development through trade shows, advertising, hiring consultants and more. They need to be efficient with time and funds when working on leads and helping existing companies. They have helped create about 1,200 jobs since 2011 and millions in capital investment. They average five or six large projects per year. They helped 136 firms last year, with significant time spend with each. Deschutes County is a certified work ready community; one of nine counties with this designation last year. Crook and Jefferson counties are now as well. They are meeting with airlines to secure more air service. Education at Work is a collaboration with educational institutions to make sure that there is a good continuum of education for potential employees. This effort may end up more regional. They also work with an advanced manufacturing industry consortium. Their new website launches on August 15; on October 7, there is a Made in Redmond tour. This even is free through sponsorships. They are keeping up with the legislative session. Their three-year strategic plan is finished. They focus on the business environment and development, and how companies can sustain operations. Mr. Browning pointed out that the REDI board a true working board. When it started, they decided to create communities in the group to hold people accountable, and this has worked out well. Everyone has a job to do, whether it is investor relations, marketing, planning or something else. He enjoys this and sees the benefits of economic development efforts. Commissioner Baney asked what the transportation/infrastructure needs of businesses are, and whether housing is an issue. These can be impacts to recruitment. Mr. Stark replied that the housing part is evident, especially rentals. They were not feeling this in Redmond as early as Bend was, but are dealing with it now, especially in regard to the essential workforce. There are five projects on the books and two underway, to add up to 1,200 residences. They are attending a transportation meeting next week. Congestion on Highway 97 is a problem, but Trip 97 efforts are helping. The south Redmond connection is an issue. He has heard from transportation businesses that trucking has been impacted by not having enough passing lanes. There are federal regulations regarding hours on the job for drivers, not having enough truck stops, congestion, and not enough places to be off the road. This information is coming directly from the transportation industry. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 2 of 12 Commissioner DeBone noted that it is exciting how this has been able to grow for industrial land uses. The tri -county area is so much better with this involvement. It should not be a competition, but cities and counties working together. Chair Unger asked if the extra $10,000 is helpful. Mr. Stark replied that they would not be where they are today without this assistance. They are now close to parity. The City of Redmond increased its funding as well. Most of this money is used for marketing purposes. They are trying to grow the private sector funding as well. Mr. Browning added that they decided that Mr. Stark should be doing more visits to corporate headquarters, wherever that might be, and created a line item for this. It has had a great positive impact. Commissioner Baney said that given recent interest in economic development, it is good to know this. Mr. Stark stated that as a 501(c)(6), they have taken a position on some business issues legislatively. Most is done through the efforts of a hired lobbyist. Chair Unger said they should enhance the voice of business to be able to engage in a lot of these issues, so the legislature can learn how their decisions impact business. Mr. Stark explained that the County money goes directly to developing local jobs. 2. "Welcome to Deschutes County" Veterans' & First Responders' Signage Proposal. Chris Doty said that veterans' representative Dick Tobiason has asked that the signs entering Deschutes County be freshened up. They worked with ODOT on some concepts. Mr. Tobiason said that they have had a foundation doing this work for about seven years. He introduced Bob Maxwell, the most senior Medal of Honor recipient, who is now age 95. They would like to replace the signs that say entering `Deschutes County' to say `Welcome', and to thank veterans and first responders. They feel the signage is important to honor all of those who have sacrificed — both law enforcement and veterans. Mr. Maxwell added that it involves just eight signs that can tell the public what the County stands for. The State Police are also very supportive. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 3 of 12 Mr. Tobiason said they can do what other jurisdictions have done, but go beyond it. The Sheriff is supportive, as are the veterans' groups. He added that the sixty-seven signs on five veterans' highways are all finally up. Mr. Doty noted that they have a conversation internally to determine the cost. There may be other resources because of the State highways. The amount is about $8,000, which is not a lot. Turnaround would be about two months. They would like this to happen before Veterans' Day. Commissioner DeBone asked if they could partner in this. Mr. Tobiason stated that he does not think it is appropriate to ask the veterans or first responders to donate. Thirteen of thirty-three counties previously donated towards highway signs, include some of the poorest counties. He wants to take advantage of public support. They would probably use the normal Deschutes County logo and show that it was established in 1916. Commissioner DeBone asked if this should be a media opportunity, with the community working together; or is the County going to pay for it all. Commissioner Baney said she wants the County to take the lead and make sure it happens. BANEY: Move that the Department move forward with the concept and with finding an appropriate funding source. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 3. Discussion of Widgi Creek (Fairway and Pool) Decision Points. Will Groves explained that regarding the Kine & Kine cases (Widgi Creek), the post -hearing records periods have ended. He provided a memo summarizing the various positions, and referred to a matrix. (Both are attached for reference.) The Board is to make decisions on Monday. One issue is the Widgi Creek master plan. There have been modifications of conditions over the years. Staff does not see any significant controversy over the plan, but it is linked to other documents. The second question is technical regarding regulatory clauses. An example is that Sunriver distinguished its plan from an unincorporated community at the time. The Ordinance explains the hand-off. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 4 of 12 Another question is, what is done by default. The Hearings Officer said that Title 18 preserves prior arrangements through Title 15, and these were not meant to be extinguished. There are arguments on how to do this. The question is if it only deals with this or if it does not extinguish prior agreements. There are broad implications. The master plan with governing documents for Widgi Creek and the Inn of the 7th Mountain in 2001 allowed a resort to be an option, and a goal exception was taken. This includes resort community zoning code and the comprehensive plan. The question is whether they intended to keep the master plan. This is not clear. Black Butte Ranch expressly kept its master plan. The Hearings Officer and the applicant say they intended to remove the master plan as a governing document. A second option is to concur with staff that the Board at the time may have intended to do this, but failed to do so. Master plans are binding on the developer and others. The County can call it up after five years and get it back on track. The final option is to concur with opponents that the master plan was intended to be kept in place, and therefore has been. Staff feels that the intent was to remove it, but there are arguments to the contrary. This decision will cascade into other decisions. Regarding item #4, what binds development, shows 65% open space and 210 maximum units. They comply with open space requirements. The 210 units part is less clear. Milepost One units that are in both Widgi Creek and the Inn make this confusing. The applicants say that some might be in the Widgi Creek area, but functionally are part of the Inn due to utilities and other factors. There is a question as to whether the master plan can be amended. Staff feels this is not an issue for the Board to consider. There is a long process involved in something like this. The parties to the application are the homeowners' association, private residents, Kine & Kine, and the owner and his LLC. There is a question as to whether additional residential units are allowed under the rural community zone. Staff feels there is no controversy; and the Hearings Officer feels this has been met. There is concern that there are other things binding the development. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 5 of 12 Item #7, comp plan policy, was adopted for Black Butte Ranch and Widgi Creek. Community amenities were addressed. There have been many battles over this wording. The Hearings Officer tried to make sense of this. Previous Community Development Director Catherine Morrow talked about her recollections. This was not forest zone, but resort community. It was all built out except Milepost One. The Hearings Officer and others think that this precludes other development in the area. This is an attempt to retain the status quo. The text is ambiguous and it is hard to know the broad context or intent. It would be allowed if it does not interfere with existing factions. Item #8 is the pool subdivision and whether it is located in common area or open space. The pool is developed on platted 18. Some say that this means it was identified as non-residential. It could have been transferred to a homeowners' association. It does not behave as a common area. The Hearings Officer found that it says the common area is not clear. Perhaps it was intended to be a planned community but does not do what modern ones do. The rules have changed over time and the link is not clear. Because of the textual ambiguity, the Board needs to consider the context of whether it should be open or common space. It was thought of in that way in 2001 but some things have changed. The applicant argues that it does not behave as common area. Item #9 says `unless otherwise zoned for development', and this is confusing. This was adopted prior to zoning code. All of Widgi Creek allows for residential development. The Hearings Officer argues about Milepost One, eight to nine acres, and what this was meant to apply to. A question is whether the pool is a required amenity. People may think this because it was subject to conditions of approval. There was no intent to maintain it for a prior use. Staff feels that if the applicant can lawfully extinguish the use, it can be released. There is a legal argument about whether the right words were used. There was also a bankruptcy and whether the conditions of approval survived that. This is an extrinsic matter to the Board and not to be considered. Another question is whether the amenity was required under the master plan. The owner talked about owning, constructing and maintaining it, but this was not required. However, it ended up in the master plan. The Board needs to decide if it shall be, or not. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 6 of 12 Chair Unger asked if this is still considered a lodge. Mr. Groves said that the pool site was moved around. There was a golf course clubhouse but not a lodge anymore. A question is whether new development needs to be harmonious and what that is. If the pool is a centerpiece, perhaps. The applicant says that new condos are also harmonious. In item #11, the Hearings Officer identified design flaws regarding lot configuration. The applicant revised this. The Hearings Officer disallowed access on one of the roads to the development. There has to be a turnaround. A revision resulted in a reasonable modification, and the Hearings Officer's concerns were addressed. The fairway subdivision, #12, asks whether an area is to be for golf or open space. Hundreds of pages regarding the game of golf were submitted. The Board does not have to go into all of that. It goes back to the goal exception and policy, with some areas broadly designated as open space or golf course. Some was identified as redevelopable. Staff feels that this is not in that area. There is open space adjacent to the golf course. There are arguments that there were no out of bounds stakes, and that the operator moved the stakes closer in for economic reasons, to move the game along faster. The applicant has maps that show this area is not part of the golf course. The Hearings Officer says that it is fairway -adjacent greenery. The fairway subdivision issue was resolved. As you enter, lots 8 and 9 were there but there were issues relating to the mailboxes and the turnaround. The transportation planner was not concerned, but the Hearings Officer was. This was modified to allow for more flexibility. This addressed the Hearings Officer's concerns, but the opponents still do not agree. Mr. Groves explained that with so much ambiguity and uncertainty, much of this is a best guess of staff. Some decision points could affect Black Butte Ranch. This is a serious issue and could change developable areas there, but no one at Black Butte Ranch has indicated they are concerned about it. 4. Discussion of Land Use Process for Bend UGB Expansion. Commissioner Baney indicated that she is comfortable with how this has been handled thus far. Mr. Martin said that a lot has already been in a public forum. He introduced Damian Syrnyk, Karen Swirsky, Parker Jones and Gary Firestone of the City. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 7 of 12 Mr. Syrnyk said that the LCDC has received the City's plan. Mr. Martin noted that there is a coordinated role, since this has a direct impact on County code and maps. Staff is involved with the Technical Advisory Committee as well. On August 25, there are two public sessions: from 1 to 5 PM, and again from 6 to 8 PM. Mr. Syrnyk explained that this will be a joint hearing and he is working on a script. Both agencies would open the hearing, and there are documents to be considered by both. Both sets of documents have to move forward. Mr. Martin said that the County would repeal two ordinances from 2009 for the previous UGB expansion, which was remanded back. They would amend the comprehensive plan and map. There is text acknowledging urban area reserves that are under County jurisdiction. They would amend Title 19 Bend urban areas and remove the general plan references. This would also involve a cleanup of several zones that are no longer within County jurisdiction so the references are no longer applicable. This information went to the Planning Commission on July 28 in work session. They meet tomorrow to review the City's aspects. Mr. Syrnyk provided a handout with a project update, compiled after the last meeting of the Steering Committee. It includes a map of the proposed expansion. There is a link to the website for digital versions. This is a major update of the comprehensive plan. It includes new versions of housing, employment and transportation chapters, and growth management chapters. There have been significant changes to development code, allowing for more development in standard residential zones. They focused a lot of growth in nine opportunity areas. This is targeted to accommodate more mixed -used development and housing to make it easier to get around by foot, bicycle, with close access to services. There are a series of maps for expansion areas, with different types of housing, jobs, parks and schools. This will not be just expanding residential or employment areas. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 8 of 12 Commissioner Baney asked what the major issues are. Mr. Syrnyk replied that there are some properties that were not included, and the owners will argue why they should be. They have not heard yet from those who might be worried about changes regarding growth within the boundary. Ms. Swirksy said that some tried to get property in the last time. They will be taking testimony starting about a week before the hearing. Mr. Syrnyk noted that it is still early. They gave a full Measure 56 notice, which generated a lot of phone calls. The website has complete information and a link to the remand record and an interactive map. Chair Unger said that there was a lot of public testimony when Redmond did this, but there were no objections to the plan, which was adopted. He asked if they will be leaving the record open after the hearing, and the agencies coming back later with a decision. Mr. Syrnyk replied they are looking at several scenarios. It can be that it all looks good, there are no requests to keep it open and each agency can conduct first readings. Or, some issues might be raised in testimony, the record remains open and they consider changes and findings. Or, something other than this. They do not know what they will be hearing. They will schedule follow-up meetings for additional testimony if needed. Chair Unger asked if the hearing is left open, if this has to be a joint meeting. Mr. Syrnyk indicated that this can happen separately if they make sure everyone has everything. It would go to the City Council first for a first reading, with ten days later for second reading and adoption. Then the County can do its ordinances. Commissioner Baney asked if there is a deadline for this to be finalized. Mr. Syrnyk replied that there is nothing firm. They would like to get it done as soon as possible, though. Commissioner Baney said that she has been hearing good feedback so far. Commissioner DeBone asked about those property owners who wanted their land to be included but it wasn't. Mr. Syrnyk responded that there could be changes in code language. It is possible that someone will say that it makes sense for a property to be in or out. There might still be small adjustments. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 9 of 12 Ms. Swirsky said that it is a balancing act; some comes in, others would have to come out. It is at the maximum level suggested. Mr. Syrnyk added that it is at the maximum to the acre. They worked closely with LCDC on this. Three staff from there served on the Technical Advisory Committee. They are pleased with the work being done. He does not expect any surprises from them. Chair Unger stated that it is being driven by the City as it reflects the needs of the City. He wants the County to support this and do its part. He asked if both Planning Commissioners are supportive. Mr. Martin stated that this is required. There is a second meeting with the County Planning Commissioner tomorrow. Mr. Syrnyk said that it did not go to the Bend Planning Commission as a body. Mr. Firestone added that the current proposal didn't, but this is a remand started many years ago. It is allowed on any remand to the final decision -maker to decide if the Planning Commission needs to see it again. The Council took the position that they will just move forward on the original remand. It is the same process and the Bend Planning Commission already saw it. Mr. Syrnyk said that they were involved. Two Planning Commissioners were on the committee and another was on a steering committee. Commissioner DeBone added that he attended a few committee meetings and noted there was great work done by staff. Maybe it will be easier to do the next time around. At this time, Commissioner Baney had to leave the meeting. 5. Other Items. The group discussed three proclamations that the VFW has asked to be part of a Board meeting. It was decided that the first two, recognizing MIA -POW and veterans' suicide issues, should be included. There has been a request from COIC to talk to the Board regarding upcoming efforts with a 190 corporation, to change transportation opportunities for COIC. Karen Friend wants to present. Chair Unger said that there was some disagreement on how to move forward. They tried to engage on this but the legislature wanted to do something else. Maybe there can be one-on-one discussions to allow each Commissioner to ask the questions that matter to them. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 10 of 12 All board members of COIC are supportive, and the Sisters Council supports this. It would give a local jurisdictions the ability to pursue funding. They are trying to find the right path. Control would be through the cities and counties and not a separate governing agency. It is the best opportunity for a system that would work in the tri -county area without one city having most of the control. The COIC board adopted this as it is much clearer now than in the past. They want to be able to tax for transit purposes. They could accept federal transit funding, but this requires local jurisdiction approval. Then it would be a vote of the people. They need a cohesive transportation system governed by one entity. Commissioner DeBone said he is concerned about the labor drivers and this taking on a life of its own. Chair Unger replied that they can still strike, as there is no binding arbitration now. Commissioner DeBone said that someday they may not need this, with new technologies. Then they would need to get rid of the local system. Mr. Kropp noted that the difference is that in a rural community, people who don't have a car will take transit. Those in the metro areas take the bus for a different reason. Chair Unger said he prefers these discussions be with each Commissioner. Commissioner DeBone prefers it be done as part of a work session with a couple of COIC board members. Mr. Kropp will find out what Commissioner Baney would like to do. Mr. Kropp said that there was a last-minute request for a letter to support OSU Cascades in an effort to get brownfields assistance. Chair Unger signed it last week. DEBONE: Move approval nunc pro tunc (after the fact). UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. Mr. Kropp announced that George Conway has been hired as the new Health Director, and starts in early October. Minute of Board of Commissioners' Work Session Wednesday, August 10, 2016 Page 11 of 12 Chair Unger said that an AOC District 2 meeting is coming up soon. Commissioner DeBone noted that he is meeting with the Eastern Oregon group tomorrow. Most of what they want is advocating at the federal level, and Deschutes County is not financially involved. This has to do with the use of public lands designated wilderness. Commissioner DeBone asked for brochures for him to take with him regarding marijuana rules, even though these counties voted it down. 6. Adjourn. Being no further discussion, the meeting adjourned at 3:20 p. m. APPROVED this 69/'-' --- Day of Deschutes County Board of Commissioners.' 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JO 'O 1,..., N aa ;c. � Ew � co CI)a�0C0 W 0 17- .t.,'14*' CvIn-�O 00 a.a-a0c� :.-47-1,13,41, ,,. 0 c, v m �.c ) t :QOM C'3cnm 0.. t) o. > a`�io c c a 00. -. oaaE?, 4`.c3z1601 Photos, design and Printing courtesy of: more about investing in REDI contact: redi@rediinfo.com or (541) 923-5223 a) -TES u 0 1111111111111111,11111,1,1,111111, IF Road Department 11,11111111,1,111111,,I,m,111114,1,11111111111,11,1,1,1111111,11111,111,1,111,11111,111,1111111111,,I,,,11,11,1,1111,111111111i,,I,1111,1111111 I 1,1,11,1111111111,11dd 11,1,1.1,1,11,1111,111111,1111,1,1111111,111111111111,1111111111111 61150 SE 27th St. • Bend, Oregon 97702 (541) 388-6581 • FAX (541) 388-2719 PROPOSAL SUMMARY Date: August 10, 2016 To: BOCC From: Chris Doty, PE, Director RE: Welcome to Deschutes County signage upgrade proposal Replace: With: Featuring: ENTERING DESCHUTES COUNT 11111111 111111111111111110111111111111M1 --- WELCOME1 TO Desch 1:s County II We Honor Veterans and First Responders 1 or At: US 97 (both ends) US 20 (both ends) OR 31 OR 242 Cascade Lakes Highway Powell Butte Highway Cost: Each sign installation will cost approximately $1,000 each ($8,000 total) Proposal by: Dick Tobiason, Bend Heroes Foundation Community Development Department Planning Division Building Safety Division Environmental Soils Division P 0 Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http: //www. co.deschutes.or, us/cdd/ MEMORANDUM DATE: April 15, 2016 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Deliberations on two matters: Kine & Kine Properties appeal of a Hearings Officer's decision. File Nos. 247- 14 -000395 -TP, 247 -14000396 -SP, and 247 -14 -000397 -LM (247-15-000206-A) Kine & Kine Properties appeal of a Hearings Officer's decision. File Nos. 247 -14- 000391 -TP, 392 -SP, 393 -LM, and 207-A. The Board of County Commissioners (BOCC) has heard appeals filed by Kine & Kine Properties. The appeals were submitted in response to a Deschutes County Hearings Officer's decision that proposed subdivisions do not comply with all applicable regulations. The BOCC agreed to hear these matters under Order 2015-029. De novo public hearings were conducted on January 27 and February 29, 2016. The post -hearing written record periods have ended. Typically, the Board would proceed to deliberations. In this instance, the Applicant has asked that the Board delay making a decision for 90 days and tolled the decision timeline to provide for this delay. The Applicant is requesting additional opportunity to work with property owners to resolve what issues can be resolved. Michael McGean, representing several Widgi HOAs, asserts that the Board should proceed towards decisions, as the Applicants' offers to negotiate have not been in good faith, and they have instead used their delays to intimidate and retaliate against the Widgi Creek and Elkai Woods residents who have spoken up against the developments on the first fairway and common lot 18. Nothing precludes the Board from delaying a decision to accommodate the Applicant's efforts and nothing precludes the Board from proceeding towards a decision in this situation. Timing is wholly at the discretion of the Board. Staff seeks direction from the Board on whether to schedule deliberations in regular course, or to delay those deliberations in accordance with the Applicant's request. Correspondence from the parties on this issue is attached. Quality Services Performed with Pride William Groves From: Lewis, Tia M. <TLewis@SCHWABE.com> Sent: Monday, March 14, 2016 3:08 PM To: William Groves Cc: David Doyle; Michael McGean (michael@francishansen.com) Subject: Widgi Creek Appeals before the Board Hi Will: I have been asked by my clients to request a tolling or a stay of the appeals for a period of 90 days to begin at the close of the post hearing written record next Monday, 3/21/16. The purpose of this request it to allow the applicants an opportunity to work with members of the community towards a negotiated resolution related to the proposed development and future community management and development issues. To be clear, we are not asking that the record remain open or for an extension of the post hearing record set by the Board at its hearing on 2/29/16. We will continue to comply with that post hearing schedule and will submit final argument next Monday with the record closing at that time. If we are able to successfully resolve some or all of the issues in the appeal during the pendency of the stay, we will ask that the record be reopened and take the appropriate steps to incorporate any resolution into the applications with further opportunity for public comment and participation. If we are unsuccessful, we will ask the Board to proceed with deliberations and decisions on the appeals. Because the 150 day time periods within which the County has to make a decision in the matters were restarted as of the date of the modified applications addressing the design issues, we should not have a timing problem. However, just to be safe, we hereby agree to toll the 150 day time periods within which the County has to issue decisions in these matters for a period of 90 days (3/21/16 + 90 = 6/19/16, which is a Sunday so 6/20/16). Please let me know the County's position on this request as soon as possible. Thanks, Tia. TIA M. LEWIS 1 Shareholder SCHWABE, WILLIAMSON & WYATT 360 SW Bond Street, Suite 500, Bend, OR 97702 Direct: 541-749-40481 Fax: 541-330-1153 1 Email: tlewis@schwabe.com Assistant: Leslie Schauer 1 Direct: 541-749-4052 1 Email: lschauern,schwabe.com Legal advisors for the future of your business0 www.schwabe.com Thank you for considering the environment before printing this email. NOTICE: This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. 1 SCHWABE, WILLIAMSON & WYATT' ATTORNEVS AT LAW 360 SW Bond Street, Suite 500, Bend, OR 97702 1 Phone 541.749.4044 1 Fax 541.330.1153 1 www.schwabe.com TIA M. LEWIS Direct Line: 541-749-4048 E -Mail: tlewis@schwabe.com March 16, 2016 VIA E-MAIL David Doyle Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 RE: Applications of Kine & Kine Properties 247 -14 -000391 -TP; 247 -14 -000393 -SP; 247 -14 -000394 -LM 247-14-0003 95 -TP; 247 -14 -000396 -SP; 247 -14 -000397 -LM Our File No.: 126937-194291 Dear Mr. Doyle: The applicant's requested 90 -day continuance of the pending appeals is both authorized and reasonable in the present circumstances. The conduct of land use proceedings is regulated by ORS 197.763, ORS 215.402-.437 and the Deschutes County Procedures Ordinance, Title 22. Under all of those procedural rules, the applicant is allowed to request a continuance, record extension or both consistent with the obligation to provide public input and opportunity to respond to any new evidence and to toll or waive the time period within which the local jurisdiction has to make a decision. ORS 197.763; ORS 215.427; DCC 22.24.140. Likewise, the applicant can modify the application any time prior to the close of the record, which restarts the 150 day time period , and can restart it as many times as there are modifications. DCC 22.20.055 A, B. Except for continuance requests made prior to the date set for the initial hearing (which shall be granted to the applicant), the continuance request is at the discretion of the Hearings Body. DCC 22.24.140. The Board can and should grant the requested continuance because it is authorized by law, will cause no prejudice to opponents' substantive rights and will allow the applicant an opportunity to resolve any issues it can with the community. Nothing in the state statutory provisions, the County ordinances or elsewhere prohibits the requested continuance. The 150 day deadline cited by opponents in fact allows the applicant to extend it for a specified period of time and only the applicant can seek to extend it. Leathers Oil Company v. City of Newberg, 63 Or LUBA 176 (2011) (citing ORS 227.178, which the City equivalent provision of ORS 215.427). In fact, the applicant is free to waive the deadline entirely without divesting the local jurisdiction of decision-making authority over the applications being tolled or waived. Id. Portland, OR 503 222.9981 1 Salem, OR 503.540.4262 I Bend, OR 541.749.4044 1 Eugene, OR 541.686.3299 Seattle, WA 206.622.1711 1 Vancouver, WA 360.694.7551 1 Washington, DC 202.488.4302 PDX\126937\ 194291 \TML\17856540.1 David Doyle March 16, 2016 Page 2 The County is entirely within its discretion and authority to grant the requested continuance. If the parties can resolve some or all of the issues through additional time for negotiations, the County should allow time for that in the interest of the community and judicial efficiency. The matters are fully briefed, the record will close upon applicant's final argument so the applicant's requested continuance poses no harm to opponent's substantive or procedural rights. If the settlement negations are unsuccessful, the County can proceed toward a decision with the record as it exists as of the date of the continuance and tolling of the 150 -day deadline. If any resolutions can be reached, the applicant will request the record be reopened in conformance with state and county procedural requirements for evidentiary submissions and public opportunity to respond. DCC 22.24.160; ORS 197.763. The remaining issues raised in Mr. McGean's letter of March 15, 2016 are outside of the scope of the record in this matter and are improper for consideration by the Board. However for the purpose of legal counsel's knowledge, the lawsuit against the Elkai HOAs is to decide a property ownership question — a matter clearly outside of the County jurisdiction and land use process and squarely within the jurisdiction of the Circuit Court. This lawsuit was necessitated to clear the cloud on title to Common 18, a cloud the HOA opponents have put there by claiming a property interest in a piece of property that their CC&Rs plainly exclude and for which they do not now nor have they ever accepted any financial or ownership responsibility. As for the allegations of bad faith, threats and intimidation, this information has no place in this proceeding and is improperly being used by counsel to influence the Board. Interestingly, the same accusations have been communicated to the applicants by individual homeowners against opponent's counsel and the HOA officers, but the applicants have refrained from submitting it into the land use proceedings. The Widgi Creek community consists of many individual homeowners, each with their own opinion and interests regarding community development and management. Many of the homeowners, including a few who testified at the hearing, support some development and a negotiated resolution of future development and management issues within the community. The modified applications are a result of community input and design changes made to address homeowner input. The applicant is requesting additional opportunity to work with these property owners to resolve what issues can be resolved. The request creates no prejudice to opponent's rights and conserves County time and resources if some or all issues can be resolved. The applicant has restarted the 150 -day clock with the modified applications and agrees to toll it during the pendency of the requested continuance. There is no reason to deny the opportunity to work towards a resolution. S;tncerel �Y is M. Lewis TML:ls cc: Michael McGean (via e-mail) 8W P DX\ 126937\ 194291 \TML\ 17 856540.1 C.E. 'WIN" FRANCIS MARTIN E. HANSEN* GERALD A. MARTIN MICHAEL H. MCGEAN t *ADMITTED IN OREGON AND WASHINGTON FRANCIS HANSEN & MARTIN LLP ATTORNEYS AT LAW 1148 NW HILL STREET, BEND, OR 97703-1914 PHONE: 541-389-5010 • FAX: 541-382-7068 WWW. FRANCISHANSEN.COM March 15, 2016 BY HAND DELIVERY David Doyle Deschutes County Legal Counsel 1300 NW Wall St., Ste 205 Bend, OR 97703 Re: Applications of Kine & Kine Properties 247 -14 -000391 -TP; 247 -14 -000393 -SP; 247 -14 -000394 -LM 247 -14 -000395 -TP; 247 -14 -000396 -SP; 247 -14 -000397 -LM Dear Mr. Doyle: CHRISTOPHER J. MANFREDI 1- ALISON ALISON A. HUYCKE SARAH E. HARLOS ALISON G. HOHENGARTEN REGON AND CALIFORNIA l ma 1J 2016 DESCHUTES COUNTY EEG:1I CCu i3EI„ On behalf of the three Widgi Creek and Elkai Woods homeowners associations, I am writing to object to the request this week by Ms. Lewis to "toll or stay" her clients' appeal of the hearings officer decision that was just heard by the Board of Commissioners. The applicants' purported reason for the delay is to negotiate. Unfortunately, the applicants' offers to negotiate have not been in good faith, and they have instead used their delays to intimidate and retaliate against the Widgi Creek and Elkai Woods residents who have spoken up against the developments on the first fairway and common lot 18. The Deschutes County Development Procedures Ordinance does not give the applicant a right to a stay or postponement of the County's decisions. To the contrary, as you know, it gives the County a deadline for the decisions, and limits the total of all extensions to 215 days. DCC 22.20.040. Although the applicant has offered to "toll" even that limit, it would not seem to be in the County's interest to put its own deadline to the test. The applicants have already delayed their appeal for nearly a full year. They have used that delay to file a lawsuit against the Elkai Woods and Elkai Woods Fractional Homeowners Association in the circuit court. That lawsuit is a thinly -veiled attempt to collaterally attack the County Hearings Officer's decision, and to make the HOAs withdraw their opposition to the land use applications. During that time, Ms. Lewis' clients have shown no interest in negotiation. It was not until recently that they mentioned anything about wanting to negotiate, and those proposals have been in bad faith. Just before the February 29, 2016 hearing before the Board, Mr. Helm through his golf course manager Brad Hudspeth contacted the HOA board members and other homeowners for an informal meeting to discuss their development proposals. While the homeowners attended in good faith, Mr. Helm and Hudspeth David Doyle Re: Application of Kine and Kine Properties 247 -14 -000391 -TP; 247 -14 -000393 -SP; 247 -14 -000394 -LM March 15, 2016 Page 2 unfortunately used the occasion to threaten the homeowners that Kine and Helm's attorneys would be taking depositions of every single Elkai Woods resident, and that hundreds of thousands of dollars would be spent in litigation unless the HOAs agreed to resolve the appeals. It was clear to the HOAs that Mr. Helm and Mr. Hudspeth were using the proposed informal meeting not for good faith negotiation but to intimidate the residents and turn them against each other and their own HOAs. Since then, Mr. Helm and Mr. Kine have made good on their threats by issuing subpoenas just last week to random Widgi and Elkai residents (including the spouses of board members) for depositions in the Kine/ Helm civil suit against the Elkai HOAs. This gamesmanship and abusive behavior is unfortunately very consistent with the applicants' past tactics. The HOAs expect that Kine and Helm will use their requested delay to further bully the homeowners and try to create more conflict in the Elkai/Widgi communities, or to get some perceived new advantage before the Board. For these reasons the HOAs have no interest in sitting down with Mr. Kine and Mr. Helm at this point, and strongly object to any further delay. The appeals hearing has already occurred and the parties have all invested their time and resources in that appeal. The HOAs have already submitted their post -hearing rebuttal and argument. It is our view that postponing the appeals now will serve no legitimate purpose. We are therefore hopeful that the Board will deny the requested postponement and proceed with its deliberations and decisions on the appeals to resolve these matters. MICHAEL H. McGEAN cc: Barbara Munster, Widgi Creek HOA Carl Stromquist, Elkai Woods HOA Randy Bauman, Elkai Woods Fractional HOA Tia Lewis Community Development Department Planning, Building Safety, Environmental Soils, Code Enforcement PO Box 6005, Bend, Oregon 97708-6005 117 NW Lafayette Avenue www.deschutes.org/cd MEMORANDUM TO: Deschutes County Board of County Commissioners FROM: Matthew Martin, AICP, Associate Planner DATE: August 3, 2016 SUBJECT: City of Bend Urban Growth Boundary Amendment / Work Session BACKGROUND The City of Bend proposes an amendment to the Bend Urban Growth Boundary (UGB) to add 2,380 acres for needed housing, employment opportunities, and other urban uses.' The work session on August 10 prepares the Board of County Commissioners (Board) for the upcoming joint public hearing with Bend City Council on August 25.2 The public hearing will take place in the Barnes and Sawyer rooms located at the Deschutes Service Center, 1300 NW Wall Street, in Bend. The hearing will be conducted in two sessions. An afternoon session will start at 1:00 pm and end no later than 5:00 pm. An evening session will start at 6:00 pm and end no later than 9:00 pm. PROPOSED AMENDMENTS TO DESCHUTES COUNTY CODE The City of Bend's UGB expansion requires Deschutes County to amend its Comprehensive Plan and Title 19, Bend Urban Area Zoning. The proposed ordinances are summarized below and attached for reference. • Ordinance Nos. 2016-020 and 021 repeal Ordinance Nos. 2009- 001 and 002, adopted by the Deschutes County Board of Commissioners in February 2009, because the 2016 UGB expansion requires substantially different amendments to the Deschutes County Comprehensive Plan, Comprehensive Plan Map, and Bend Urban Area Zoning than the City of Bend's 2009 proposal. • Ordinance Nos. 2016-022 and 023 recognize the City of Bend's current UGB amendment in the County's Comprehensive Plan and Comprehensive Plan Map and delete obsolete zoning references in Title 19 pertaining to urban unincorporated zones. 1 On April 16, 2009, the City of,Bend and Deschutes County submitted an adopted UGB amendment proposing a boundary expansion of 8,943 acres to the Department of Land Conservation and Development. On January 8, 2010, the Department Director issued a report and order remanding the proposal back to the city and county. Several parties, including the City of Bend, filed appeals of this order to be heard by the Land Conservation and Development Commission (LCDC).LCDC held public hearings on March 18 and 19, April 23, and May 12, 2010. At the Commission's final hearing in Bend on May 12, 2010, the Commission approved a motion to remand the proposal back to the City. The Commission issued its final partial acknowledgement/remand order on November 2, 2010. 2 A complete copy of the City of Bend UGB proposal, totaling approximately 1,800 pages will be provided to the Board on August 10. The proposal can also be downloaded from the City's website: htto://www.bend.or.us/index.asgx?Daae=1290 DESCHUTES COUNTY PLANNING COMMISSION Deschutes County Code, 18.12.040(B) requires legislative amendments to be reviewed by the Deschutes County Planning Commission prior to action being taken by the Board. On July 28, staff conducted the first of two work sessions with the Planning Commission summarizing the proposed UGB expansion and County amendments, Ordinance Nos. 2016-020, 2016-021, 2016-022, and 2016-023. On August, 11, City of Bend staff will conduct a second work session with them focusing on the details of the City's proposal. Attachments: Draft Ordinances 2016-020 through 2016-023 City of Bend Findings Excerpt: Section 7 — UGB Location 2 Project Update STEERING COMMITTEE APPROVAL OF PREFERRED SCENARIO On Apr21, 2016, the Urban Growth Boundary Steering Committee (USC) approved a preferred scenario for the City of Bend's Urban Growth Boundary (UGB). The preferred scenario buitds on the recommendations by the pject'aTeohnio8|AdviSoryConlnnitteesandnaSpondSbreXtensivopub|ic input and testimony received throughout the pjectgndattheUSC'ama8tinQonApri|21*. Like previous expansion scenarios, the preferred scenario focuses future growth in opportunity areas within the existing UGB and in new complete communities in expansion areas. Nearly all expansion areas include a mix of housing, employment areas, shopping/services, and schools and parks. A "transect" concept in the West Area reduces the density of development near the west edge of the city in recognition of the natural resources and open spaces to the west. A summary map of the preferred scenario, titled "Preferred Urban Growth Boundary Expansion: Scenario 2iG" is provided on the foliowing page along with a table summarizing key metrics by expansion area. In addition, a set of draft proposed Comprehensive Plan designation maps is attached; these show proposed Comprehensive Plan designations at a property -by -property scale for each expansion area and for the proposed UGB as a whole. The USC recommended including several properties in the preferred scenario in recognition of their commitment to provide affordable housing, which is much needed in Bend. Specifically, the USC recommended the foflowing changes to the UGB expansion areas: • Including 40 additional acres of land in the West subarea as a continuation of the transect concept, accompanied by a commitment to provide affordable housing in this expansion area, ctose to the existing city limits, schools and amenities; • Including 10 additional acres of land in the North Triangle subarea as part of a proposal to provide for workforce housing in this area; • Changing the type and mix of employment land provided in the North Triangle to be more compatible with adjacent housing; * Including roughly 2 additional acres of land immediately south of Highway 20 on the City's eastern edge to provide for affordable housing, and; • Including roughly 38 acres of land west of Highway 97 on the City's southern edge to provide for a mix of housing - including affordable housing - and local commercial services.' As part of the preferred scenario, the USC also approved minor changes to requirements for future master planned developments in the RS zone and to assumptions about redevelopment in opportunity areas in the centrat core of the City. 1 The USC also authorized reducing the size of the exparisiori area south of Butier Market Road as needed in order to remain consistent with the approved housing and job growth projections. Further techriical anaiysis shows thatthe reduction 15 not necessary, so this area has riot been changed in Scenario 2.1G. Preferred Urban Growth UGB EXPANSION AREAS ResidentiaVEmployment Park Boundary Expansion: Scenario 2.1G OB Riley 147 Aaes YEOM I. PineNur ry Park Northeast 465 Acres ,L;: TLER MARKET RD East Hwy 20 2 Acres DSL Property 362 Aaes The"Elbow" 474Aaes D RD The"Thumb" 222 Acres 2 Mile.s... NORTH Total Residential Employment Park3 Housing Housing Mix5 Estimated Expansion Area Acres2 Land (ac) Land (ac) Land (ac) Units4 SFD SFA MF Jobs 9 Northeast DSL Property "The Thumb" West 1 OB Riley 465 362 474 222 57 344 147 222 223 44 321 28 22 139 177 21 109 196 0 0 0 510.,x: 46%a 1,090 50% 10% 40% 210 o 13%' 1,000 48% 11% 41% 820 :36% .17%'.; :47%:" 270 48% 15% 37% 1,570 1'6%:' 60%. 9676 70% 9% 21% 0°0.::_._21:%: ;:.. 125 70% 10% 20% 260 1,020 2 Total acres includes existing right of way that will be brought into the UGB with the expansion areas; however this area is not included in the residential land, employment land, or park land columns since it does not meet those land needs. 3 Park land indicates land owned by the park district; land for additional parks & schools is provided within residential land acreage. 4 Housing units are policy minimums unless otherwise noted. 5 SFD = Single Family Detached; SFA = Single Family Attached; MF = Multifamily (includes duplex & triplex). Housing mix reflects policy requirements for the expansion area in total; individual properties may vary. 6 Housing unit numbers are policy maximums in the West and Shevlin expansion areas. Project Update May 2016 Page 2 of 3 ��U�� COMMITTEE APPROVAL OF DRAFT POLICY �� STEERING ��^~�^�� " ��"�~ " ��"°�� U�� DOCUMENTS TECHNICAL ..~..~. .._ The USC also approved, approved, and directed staif tofinalize, u packageof policy and technical documents that wiu be adopted along with the UGB expansion. The adoption package recommended by the USC for finalization is summarized in brief below. Updated Chapters of the Bend Comprehensive Plan • Housing Chapter (an updated chapter with the City's policies related to housing) • Economy Chapter (an updated chapter with the City's policies related to jobs and the economy) • Growth Management Chapter (a new chapter with policies about how the City will manage growth in the future) • Transportation Chapter (a slightly updated chapter with the City's transportation policies) • Other chapters with minor, policy -neutral clean-ups Technical Reports • Buildable Lands Inventory (documenting the supply of buildable land inside the current UGB) • Housing Needs Analysis (documenting housing growth pjections and needed housing mix) • Economic Opportunities Analysis (documenting job growth pjections and key site characteristics) w Urbanization Report (documenting the analysis of how housing and employment growth will be accommodated inside the current UGB and through expansion, and how the proposed UGB was selected) • UrbonFomnReport/doounnendngtheeva|umdonofurbanfonndoneaoportoftheUGBp project) • Integrated Land Use and Transportation Plan (analysis of vehicle miles traveled and strategies to reduce reiance on the automobile) NEXT ��l�� STEPS Phase 2 of the UGB Remand project, which included the creation and approval of the preferred UGB scenario and drafts of associated adoption products, is now complete. Phase 3 will conclude the project with adoption hearings with the Bend City Council and Deschutes County Board of CVnnminsionera, and submittal of the plan to the Oregon Department of Land Conservation and Development. Public meeting and hearing dates are Iisted be!ow. These dates are subject to change — please see the web site (www.bend.or.us/benduqb) for details and to confirm dates: • July 28: Informational Open House • August 25: City Council & Board of County Commissioners Joint Public Hearing on the UGB Remand (note — the hearing may be continued to later dates if needed) Notices will be mailed in July to property owners directly affected by the proposed boundary expansion, comprehensive plan map and zoning map amendments within the City, and other changes that affect the allowed use of the property. information regarding proposed changes to zoning, comprehensive plan designations, the deveiopment code, and the UGB will also be available on the City's web site. Please contact Brian Rankin (brankjnbendoreqnn.00v. and 541.388.5584) or Damian Syrnyk Project Update May 2016 Page 3 of 3 Bend UGB Proposed Cit May 5, 2016 ide Comprehensive Plan Designations 0 z w m ci a� f! (r7 J f • <RS y u^ ;17i11l�r f} �±UJJ Legend Proposed UGB II MU MN CB CL ME M PO RL CC r IG MR PO/RM/RS RM CG IL M PF RH RS Disclaimer: Land uses are subject to refinement during master planning and City -initiated area planning. Service Layer Credits: Deschutes County GIS (2014) So Streams/Rivers = Roads/Highways rot_ /l_` NORTH Current Urban Growth Boundary Bend UGB Proposed Citywide Comprehensive Plan Designations May 5, 2016 ,TAME:: -oda t GjtTcu GAL'VESTONm • uu- EIJP:i it °11'11 ll"'fiEn IMEPiLi' EE fit mr�9/fes R 144 MBE Legend 1_ ; Proposed UGB • MU ▪ MN CB CL ME M PO ® CC IG MR PO/RM/RS CG IL PF kl RH RL RM RS 0 Disclaimer: Land uses are subject to refinement during master planning and City -initiated area planning. Service Layer Credits: Deschutes County GIS (2014) I 1 • 0.5 Streams/Rivers 1 Miles NORTH Current Urban Growth Boundary Bend UGB Proposed Citywide Comprehensive Plan Designations May 26, 2016 Legend Proposed UGB • MU MN CB CL ME PO RL CC ' IG MR PO/RM/RS RM CG IL Pr RH RS Disclaimer: Land uses are subject to refinement during master planning and City -initiated area planning. Service Layer Credits: Deschutes County GIS (2014) 0 0.5 1 2 1 1 iviiies NUKIH S. Streams/Rivers ----= Roads/Highways Current Urban Growth Boundary L-• Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., WEDNESDAY, AUGUST 10, 2016 Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. 1. Redmond Economic Development Inc. Presentation and Update — Jon Stark 2. "Welcome to Deschutes County" Veterans' & First Responders' Signage Proposal — Chris Doty 3. Discussion of Widgi Creek (Fairway and Pool) Decision Points — Will Groves 4. Discussion of Land Use Process for Bend UGB Expansion — Matt Martin and Peter Gutowsky Meeting dates, times and discussion items are subject to change. All meetings are conducted 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. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format, please call (541) 617-4747, or email ken.harmsa.deschutes.orq. Board of Commissioners' Work Session Agenda Wednesday, August 10, 2016 Page 1 of 2 5. Other Items These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. 6. Adjourn Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners ' meeting rooms at 1300 NW Wall Sr., Bend, unless otherwise indicated. Ifyou have questions regarding a meeting, please call 388-6572. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format, please call (541) 617-4747, or email ken.harmsadeschutes.orq. Board of CommissionersWork Session Agenda Wednesday, August 10, 2016 Page 2 of 2