2019-13-Minutes for Meeting November 28,2018 Recorded 1/10/2019�vTES C�
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 3 88-65 70
Recorded in Deschutes County CJ2019_1 3
Nancy Blankenship, County Clerk
Commissioners' Journal 01 /10/2019 11:55:59 AM
1111 IN 111111111111111
2019-13
FOR RECORDING STAMP ONLY
9:00 AM SD November 2 2' 1 BARNESAll
Present were Commissioners Tammy Baney and Anthony DeBone. Commissioner Phil Henderson was
absent, excused. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County
Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. Several
citizens and identified representatives of the media were in attendance.
Due to technical difficulties, this meeting was audio recorded only and can be accessed at the
Deschutes County Meeting Portal website
http://deschutescouLtyor.iqm2.co.m/Citizens/Default.aspx
CALL TO ORDER: Chair DeBone called the meeting to order at 9:10 am
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT: None presented.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
BAN EY: Move approval
DEBONE: Second
BOCC BUSINESS MEETING NOVEMBER 28, 2018 PAGE 1 OF 5
VOTE: BAN EY: Yes
HENDERSON: Absent, excused
DEBONE: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Board Signature of Document No. 2018-722, an Addendum
to a Lease Between Deschutes County as Lessor and Munchkin Manor
Childcare and Preschool, as Lessee
2. Consideration of Board Signature of Document No. 2018-735, Quitclaim for
Wood Hill Homes, Inc.
ACTION ITEMS:
3. Consideration of Board Signature of Document No. 2018-723, a Bargain
and Sale Deed to Debrah Childress
James Lewis, Property Manager presented this item for consideration. The
Board commented on this as a unique situation and expressed support.
BAN EY: Move approval
DEBONE: Second
VOTE: BAN EY:
HENDERSON:
DEBONE:
Yes
Absent, excused
Chair votes yes. Motion Carried
4. Consideration of Document No. 2018-687, Decision on File No. 247-18-
000626-A Overturning a Hearings Officer Decision (file 247 -18 -000138 -
DR) that Eagle Air Estates Paved Taxiway Violated Open Space
Requirements
BOCC BUSINESS MEETING NOVEMBER 28, 2018 PAGE 2 OF 5
Peter Russell, Senior Transportation Planner presented this item.
Commissioner DeBone commented on the absence of one of the
Commissioners in consideration of the decision and wondered on the clock
with this particular record. Commissioner DeBone expressed general
support of the hearing's officer decision, but acknowledges that a more
global solution (outside of the scope of this appeal) might better serve the
parties. Mr. Russell commented on open space and on non -conforming use.
Commissioner Baney explained the challenge based on a lack of information
in the record from 1989. The Board supports allowing Commissioner
DeBone time to review the findings document further to determine if he can
vote in favor. Staff will return to the Work Session this afternoon.
S. DELIBERATIONS: Big Sky Park Appeal, 21690 Neff Road
Cynthia Smidt, Community Development Department presented the item
giving a staff report and decision matrix to be considered. Commissioner
Baney commented on the absence of one of the Commissioners in
consideration of the deliberations and wondered on the clock with this
particular record. The matrix and map of the subject property were
reviewed. A suggestion was made for public notice to post an on-line event
calendar at this park. Ms. Schmidt will draft a decision for the Board
consideration.
CONVENE AS THE GOVERNING BODY OF THE DESCHUTES COUNTY
EXTENSION 4H
a. Consideration of Board Signature of Letter Appointing Laura
Spaulding, Pat Kolling, Peggy Corbet, Carly Sanders, Loren Kellogg, and
Peggy Kellogg to the Deschutes County Extension Advisory Council
BAN EY: Move approval
DEBONE: Second
BOCC BUSINESS MEETING NOVEMBER 28, 2018 PAGE 3 OF 5
VOTE: BAN EY:
HENDERSON:
DEBONE:
Yes
Absent, excused
Chair votes yes.
Motion Carried
b. Consideration of Board Signature of Letter Appointing Gayle Hoagland
and Judy Hackett to the Deschutes County Extension Advisory Council
and 4H Budget Committee
BAN EY: Move approval
DEBONE: Second
VOTE: BANEY:
HENDERSON:
DEBONE:
Yes
Absent, excused
Chair votes yes. Motion Carried
c. Consideration of Board Signature of Letter Thanking Mike Scholerman,
Katrina Van Dis, Katie Duggan, and Dan Sherwin for their Service on
the Deschutes County Extension Advisory Council
BAN EY: Move approval
DEBONE: Second
VOTE: BAN EY:
HENDERSON:
DEBONE:
OTHER ITEMS: None reported.
Yes
Absent, excused
Chair votes yes. Motion Carried
BOCC BUSINESS MEETING NOVEMBER 28, 2018. PAGE 4 OF 5
Being no further items to come before the Board, the meeting was adjourned at 10:25 a.m.
DATED this I -7 Day of 2018 for the Deschutes County Board of
Commissioners.
C
TAMMY BANEY,CISSIONER
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BOCC BUSINESS MEETING NOVEMBER 28, 2018 PAGE 5 OF 5
E S COG
A
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, WEDNESDAY, NOVEMBER 28, 2018
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetings. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
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. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
Consideration of Board Signature of Document 2018-722, an Addendum to a Lease
Between Deschutes County as Lessor and Munchkin Manor Childcare and
Preschool, as Lessee.
hoard of Commissioners Business Meeting Agenda Wednesday, November 28, 2018 Page 1
of 3
2. Consideration of Board Signature of Document No. 2018-735, Quitclaim for Wood
Hill Homes, Inc.
ACTION ITEMS
3. Consideration of Board Signature of Document 2018-723, a Bargain and Sale Deed
to Debrah Childress -,James Lewis, Property Management
4. Decision on 247-18-000626-A Overturning A Hearings Officer's Decision (file 247 -1.8-
000138 -DR) that Eagle Air Estates Paved Taxiway Violated Open Space
Requirements - Peter Russell, Senior Planner
5. DELIBERATIONS: Big Sky Park Appeal, 21690 Neff Road -Cynthia Smidt, Associate
Planner
CONVENE AS THE GOVERNING BODY OF THE DESCHUTES COUNTY EXTENSION
4H
1. Consideration of Board Signature of Letter Appointing Laura Spaulding, Pat
Kolling, Peggy Corbet, Carly Sanders, Loren Kellog, and Peggy Kellogg to the
Deschutes County Extension Advisory Council
2. Consideration of Board Signature of Letter Appointing Gayle Hoagland and
Judy Hackett to the Deschutes County Extension Advisory Council and 4H
Budget Committee
3. Consideration of Board Signature of Letter Thanking Mike Scholerman,
Katrina Van Dis, Katie Duggan, and Dan Sherwin for their Service on the
Deschutes County Extension Advisory Council
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.
Board of Commissioners Business Meeting Agenda Wednesday, November 28, 2018 Page 2
of 3
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
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.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.or /meetingcalendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Wednesday, November 28, 2018 Page 3
of 3
LwT ES CSG
a
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of November 28 2018
DATE: November 20, 2018
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Decision on 247-18-000626-A Overturning A Hearings Officer's Decision (file 247 -18-
000138 -DR) that Eagle Air Estates Paved Taxiway Violated -Open Space Requirements
RECOMMENDATION & ACTION REQUESTED:
Review and approve the decision in 247-18-000626-A which overturns the hearings
officer's decision in 247 -18 -000138 -DR that a paved taxiway did violate the open space
requirements for the Eagle Air Estates subdivision.
BACKGROUND AND POLICY IMPLICATIONS:
In August 1989 a Hearings Officer approved a 12 -lot cluster subdivision, Eagle Air Estates
(EAE), under file CU-89-68/TP-89-701. The aviation subdivision included a paved taxiway to
the Sisters Airport. In May 2017 a private party filed a code enforcement complaint that the
paved taxiway violated the EAE open space requirement. EAE applied in February 8, 2018,
for a declaratory ruling (file 247 -18 -000138 -DR) that the paved taxiway did not violate the open
space requirement. After a May 22, 2018, public hearing the Hearings Officer ruled on July 25,
2018, that the paved taxiway did violate the open space requirements of CU-89-68/TP-89-701.
Mike Morgan, a party with standing and an HOA resident, on August 6, 2018, filed an appeal of
the hearings officer's decision via file 247-18-000626-A. The Board held a public hearing on
September 5 and the record closed September 26, 2018. The Board deliberated on October
10, 2018, and decided to overturn the Hearings Officer's decision based on the Board's
interpretation of the terms open space, development, and that a paved taxiway was an
intended land use based on the 1989 application materials and decision. The enhancement of
recreational opportunities is allowed in open space and the Board found a paved taxiway
enhanced recreational flying.
The Board gave staff direction on the preparing the findings at meetings on October 10 and 24,
2018. The Board was explicit that due to the unique nature of this specific case, the Board's
decision did not set precedent.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Peter Russell, Senior Transportation Planner, CDD.
I COMMUNIFTY DEVELOPMEf,"'J"I
STAFF MEMORANDUM
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
DATE: November 20, 2018
MEETING: November 28, 2018
RE: Decision on an appeal of a declaratory ruling on a paved taxiway in
open space at Eagle Air Estates Cluster Subdivision (247 -18 -000626-
A/247 -18 -000138 -DR)
I. BACKGROUND
The Board of County Commissioners (Board) held deliberations on October 10, 2010, at 9:00 a.m.
on an appeal, 247-18-000626-A, which was an appeal of a hearings officer's denial of 247 -18 -000138 -
DR regarding an approximately 30 -year-old paved taxiway between Eagle Air Estates (EAE) and
Sisters Eagle Air Airport. The Board previously held a public hearing on the matter on September
5, closing the record September 26, 2018. The subject property has no assigned address, but is
identified on the County Assessor's map as 14-10-33D, Tax Lot 99. The EAE Cluster Subdivision was
originally approved under CU-89-68/TP-89-701. (Please see Figures 1 and 2.) The declaratory ruling
was filed in response to a code enforcement complaint filed by a private party in May 2017.
The hearings officer in his july 25, 2018, decision found the paved taxiway did violate the open space
requirement. The hearings officer also determined a declaratory ruling was appropriate and
identified what issues were germane. Specifically, the hearings officer's decision, based on the
County code language at Deschutes County Code (DCC) 22.40, limited his ruling to what is open
space; what is development; what were the land use regulations in effect when EAE was approved;
what was the then -present use in 1989; and what is enhanced recreational opportunity. The
hearings officer's decision stated anything else (calculation of open space, absence of paved taxiway
on final EAE plat, access to Sisters Airport, design of paved taxiway, flooding, etc.) was not relevant.
Mike Morgan, a party with standing through his submittal of written testimony into the record for
247 -18 -000138 -DR, filed a timely appeal (247-18-000626-A) on August 6, 2018.
Figure 1, EAE Open Space, aka Common Area, 14-10-33D, Tax Lot 99
Figure 2, EAE Paved Taxiway
Page 2 of 4
If. BOARD DELIBERATIONS
The Board and staff on October 10, 2018, reviewed a Decision Matrix, which summarized the major
issues from the hearings officer's July 25, 2018, denial of the Eagle Air Estates declaratory ruling as
well as issues raised before the Board on appeal at the September 5, 2018, public hearing and
materials submitted into the written record. The matrix topics were:
• Availability of the Declaratory Ruling process
• Definition of "present use"
• Definition of "open space" as natural or undeveloped
• Definition of "open space" as related to listed traits
• "Open space" is the same as "common area"
• Definition of "development"
• Definition of "enhance recreation opportunities"
The Board found file 247 -18 -0000138 -DR met the standards of Deschutes County Code (DCC)
22.40.010 and thus the declaratory ruling process was available to the applicant. Planning Law -15
(PL -15) was the applicable County code in 1989 when the application for EAE was submitted. The
Board did not reach consensus on "present use" in PL -15 Section 1.030(80) and CU-89-68/TP-89-701
but due to the discussion on activities allowed in open space this question became moot. The Board
agreed on the interpretation of the definition of "open space" in PL -15 Section 1.050(16)(B)(1) and
agreed to overturn the hearings officer's finding. The Board agreed on the characteristics of "open
space" at PL -15 Section 1.030(80) and agreed to overturn the hearings officer's finding. The Board
agreed with the definition of "open space" only needing to meet one of the traits listed in PL -15
Section 1.030(80). The Board agreed that "open space" and "common area" were meant as
interchangeable terms in 1989. The Board agreed on what was meant by development as that term
pertained to the paved taxiway and agreed to overturn the hearings officer's finding. The Board
agreed that flying met the definition of PL -15 Sections 1.030(80) and 8.050(16)(B)(1) as used in the
1989 approval of EAE cluster subdivision.
The Board at the conclusion of deliberations gave a preliminary decision to overturn the hearings
officer's decision. The Board directed staff to write a decision, based on Board review and
discussion of the Decision Matrix, which explained the Board's decision.
The Board reviewed the draft decision on October 24 and provided further direction on the findings,
requesting staff return with amended findings. The Board sought to provide additional detail on
the unique aspects of interpreting code and intent for a nearly 30 -year-old land use decision; the
terms open space and development; and a brief discussion on equitable estoppel. The Board
reiterates the decision is for this specific case only and is not precedential.
III. BOARD'S DECISION
Staff now presents Board Document No. 2018-687, a decision on file 247-18-000626-A and hereby
declares the paved taxiway in this case does not violate the open space requirement of EAE and.
overturns on appeal the Hearings Officer's decision in file 247 -18 -000138 -DR, which found the paved
taxiway did violate the open space requirement.
Page 3 of 4
IV. TIMELINE
The County has 150 days to issue a decision. EAE HOA submitted 247 -18 -000138 -DR on February
9, 2018. Through various tollings by the applicant the 150th day to render a local decision is now
December 7, 2018.
Attachment: Board Document No. 2018-687, Files 247-1&000626-A/1 38 -DR
Page 4 of 4
R IEWED
10& N ,
LEGAL COUN
FILE NUMBERS:
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
OWNER/APPLICANT:
247 -18 -000138 -DR, 247-18-000626-A
Eagle Air Estates Homeowners Association
15860 Pilot Drive
Sisters, OR 97759
APPLICANT'S J. Christian Malone
ATTORNEY: Schmid Malone Buchanan, LLC
550 NW Franklin Ave., Suite 378
Bend, OR 97703
APPELLANT: Michael Morgan
15925 Pilot Drive
Sisters, OR 97759
PROPOSAL: An appeal of a Declaratory Ruling that a paved taxiway violated the
open space requirements of Eagle Air Estates.
STAFF REVIEWER: Peter Russell, Senior Transportation Planner
HEARINGS OFFICER
DECISION ISSUED: July 25, 2018
APPEAL FILED: August 6, 2018
HEARING DATE: September 5, 2018
RECORD CLOSED: September 26, 2018
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
t� (541) 388-6575 Cay cdd@deschutes.org @ www,deschutes.org/cd
1. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal of
the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -DR; "Hearings Officer Decision").
The Board exercised its discretion to hear the appeal de novo.
The Board received two Memoranda on the appeal from Senior Planner Peter Russell, dated August
23 and October 3, 2018 ("Staff Memoranda #1 and #2") that identified and summarized the
appellant's objections, the applicant's materials, and the Hearings Officer's findings in regard to the
issues raised in the appellant's Notice of Appeal submittal. The Board also received a memorandum
dated September 11, 2018, that focused solely on the declaratory ruling process (Staff
Memorandum #3). The Board's Decision in this appeal will refer to and incorporate the Hearings
Officer's Decision, and the summary of issues in the three Staff Memoranda.
A public hearing was held before the Board on September 5, 2018, after which the Board closed the
oral record and the applicant agreed to the Open Record closing September 12, Mutual Rebuttal
closing September 19, and Final Argument closing September 26, 2018. The Board deliberated on
the matter on October 10, 2018. (The Board rarely re-examines Hearings Officer decisions made
nearly thirty years previously. As detailed below, the subdivision application included the paved
taxiway and anticipated access to Sisters Airport. The paved taxiway has been in existence and in
use for nearly three decades.) After reviewing the record, receiving testimony from the applicant,
the appellant, and the public, and deliberating on the matter, the Board found that the paved
taxiway did not violate the open space requirements and overturned the hearings officer's decision,
determining the appellant had met its burden of proof. The Board based its decision primarily on
a differing interpretation of the terms "open space" and "present use" than the hearings officer's
ruling. The Board agreed with the hearings officer's decision on the interpretation of "enhance
recreational opportunities" but differed on how the term is applied to a paved taxiway in open
space.
Due to the unique aspects of this case, including that the Board is interpreting County code from
almost 30 years ago, the Board specifies its findings and interpretations are for matters in this
appeal only and are not intended to set precedent.
II. APPLICABLE STANDARDS AND CRITERIA:
The Board adopts and incorporates by reference the description of the applicable standards and
criteria as set forth in the July 25, 2018 Hearings Officer Decision (file no. 247 -18 -000138 -DR) in
Section I. The applicable criteria were:
• Planning Law 15 (PL -15)
o Section 1.030 (Definitions) (21) and (80)
o Section 8.050, Specific Use Standards (16)
• Title 22, Deschutes County Code (DCC) Procedures Ordinance
o Chapter 22.40, Declaratory Ruling
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 2 of 7.
• Land Use Approval CU-89-68/TP-89-701 (Eagle Air Estates cluster subdivision)
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the July 25, 2018, Hearings Officer Decision in Section II. Basic
Findings, Subsections A (Location), B (Zoning), C (Lot of Record), D (Proposal), E (Land Use History),
F (Review Period) and II (General Findings) with the addition of the following:
Procedural History: On August 8, 1989, a County hearings officer approved CU-89-68/TP-89-701,
which created Eagle Air Estates ("EAE"). EAE is a 12 -lot cluster subdivision with hangars to the
immediate west of Sisters Eagle Airport. Pilot Drive, a private road, provides access from Camp Polk
Road to EAE. Pilot Drive ends in a cul-de-sac. A paved taxiway then extends from the cul-de-sac to
the north end of the runway at Sisters Eagle Airport. The 1989 approval required 65% of the EAE
land be open space with 35% developed. The open space has no in situs address but is a separate
tax lot described on the County Assessors Map as 14-10-33D, Tax Lot 99.
The paved taxiway has been in use since its construction circa 1991. While the paved taxiway was
not shown on the final plat, the paved taxiway was shown on the tentative plat and was discussed
in the 1989 hearings officer's decision. Specifically, under Findings of Fact #3, the 1989 Hearings
Officer summarized the paved taxiway portion of the application as:
"Access to the lots would be off of a private road leading from Camp Polk Road. The
private road, as proposed, would also connect to the northern end of the Sisters Airstrip,
The 12 lot development is designed to be an airpark subdivision, where lot owners could
taxi their personal planes out onto the private road and then to the airstrip."
Residents of EAE have consistently taxied to and from the abutting Sisters Airport for nearly three
decades. Nonetheless, the Board heard considerable testimony regarding the residents and the
Sisters Airport's complicated and, at times, vexatious relationship. The dispute between the
residents and the Sister's Airport lead to a private party filing a code enforcement complaint with
the County in May 2017, alleging the paved taxiway violated the open space requirement of EAE's
land use approval. The County's policy is to prefer resolving code enforcement complaints via
voluntary compliance, which in this instance involved applying for a land use ruling on the fact -
specific controversy of the paved taxiway. The EAE Homeowners Association ("EAE HOA") filed a
declaratory ruling application (file 247 -18 -000138 -DR) on February 8, 2018. The application stated
"A declaratory ruling that the paved taxiway does not violate 'open space' requirement." The
application was deemed complete on March 9, 2018. A public hearing was held on May 22, 2018,
before a County Hearings Officer. On July 25, 2018, the Hearings Officer issued his decision ruling
the paved taxiway violated the open space requirement. Michael Morgan, who provided written
testimony to the Hearings Officer, appealed the Hearings Officer's Decision on August 6, 2018.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 3 of 7
The 150 -day period for issuance of a final local decision is December 7, 2018. The applicant
requested to extend the 150 -day decision period at several points throughout the process. The
combined extensions cannot exceed 215 days per ORS 215.427. The extensions totaled 124 days.
The Board decided to hear the appellant's appeal de novo in the Board's Order 2018-057 dated
August 15, 2018. A public hearing was held on September 5, 2018. The appellant, Michael Morgan,
represented himself. The opponent, Sisters Eagle Airport, was represented by Elizabeth Dickson of
Dickson Hatfield LLP. The Board heard testimony from the applicant, the appellant, and the public.
The record closed on September 26, 2018. The Board's review included the record below before
staff and the hearings officer as well as the record, testimony, and written submissions in the
proceedings on appeal before the Board.
The Board conducted deliberations at the regular Business Meeting on October 10, 2018. Staff
returned on October 24,2018, with a draft final decision. The Board provided further input on
several issues that they found influential. The Board commented on the unusual nature of the case
before them, wherein the Board finds itself drawn into essentially a private dispute. The Board
noted the paved taxiway is a necessary ancillary use of an airpark subdivision, and that the previous
owners of the Sisters Airport never appealed the approval of the 1989 land use decision, which
included the paved taxiway. The Board further noted a trait of open space is to allow animals and
people to traverse an area without any physical obstructions, such as a shed, and a paved runway
allows movement both along its surface and crossing its surface. Finally, the Board observed they
are being asked in 2018 to interpret how the terms and definitions were used in 1989. Staff then
returned with a modified decision incorporating the Board's perspective on November 28, 2018.
IV. FINDINGS:
The Board adopts and incorporates by reference the record, code interpretations, findings of fact,
and conclusions contained in the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -
DR) in Section II Substantive Findings, except for the additional findings related to the DCC Sections
identified below, which are amended as follows:
A. FINDING: (E)(4) CU-89-68/TP-89-701 Approval Document (First Step)
The Board disagrees with the Hearings Officer finding that:
"The inquiry, in this section of findings, is whether or not laying asphalt pavement upon
the ground, to create a paved taxiway, is development. The Hearings Officer finds laying
asphalt pavement on the ground (or any other material used to create a hard surface to
allow vehicles/aircraft to travel over) is analogous to laying pavement for a public or
private road. The Hearings Officer finds the paved taxiway is development."
'The Hearings Officer finds laying pavement for a taxiway is a human activity and
development that must be located in the 35% (non -open space area)."
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 4 of 7
'The Hearings Officer finds that allowing the paved taxiway within the EAE Cluster
Development common area/open space would be a modification of the CU-89-68/TP-89-
701 Approval clearly prohibits development within the common area/open space."
The Board finds a paved taxiway in this particular circumstance was not development, but rather
was instead a contemplated improvement that sees intermittent use. The Board finds the paved
taxiway is analogous to a paved golf cart path, and that the paved taxiway does not present a barrier
to either looking across open space or. physically crossing it. Contrary to the Hearings Officer's
finding, the Board finds the record for CU-89-68/TP-89-701 clearly indicated the paved taxiway was
part of the application for EAE and an anticipated use of the land. The paved taxiway appeared on
the tentative plat and was described in the then Hearings Officer's 1989 approval of EAE under
Findings of Fact #3. The 1989 decision stated in relevant part "The 12 lot development is designed
to be an airpark subdivision, where lot owners could taxi their personal planes out onto the private
road and then to the airstrip."
The Hearings Officer in 1989 considered the paved taxiway was an allowed improvement in the
open space as indicated by the project approval, an approval that was not appealed. The paved
taxiways presence and general location were described in the burden of proof, the staff report, and
the Hearings Officer's decision. Clearly, the airpark subdivision intended to provide a paved taxiway
to allow access to and from the Sisters Airport. A paved taxiway is an obvious necessary and
subordinate use of an aviation -based residential subdivision. The paved taxiway has been in
continuous use for nearly 30 years, and the Board now finds no reason to disturb or alter the
Hearing Officer's 1989 decision in CU-89-68/TP-89-701.
Additionally, the EAE attorney in file 247 -18 -000138 -DR, which is part of the record of file 247-18-
000626-A now before the Board, argued that because the paved taxiway was originally part of a
private road (Pilot Drive), the paved taxiway logically was part of the 35 percent of the land
considered developed and not the 65 percent considered open space. The EAE attorney further
argued opponents had not presented any survey evidence into the record that would prove
otherwise. Thus the County has discretion to decide whether the paved taxiway is in the 35 percent
planned for development, and thus a use allowed outright, or the 65 percent defined as open space.
Even if the paved taxiway were considered development, the paved taxiway in this case is an allowed
activity in the open space. Under the applicable County code, the enhancement of recreational
opportunities is allowed in open space. The Hearings Officer and the Board both agree that flying
private planes is a recreational activity. A paved taxiway is essential to this activity and thus is
allowed in open space. The paved taxiway is analogous to a golf cart path, which is also allowed in
open space. Both are horizontal features which do not disturb the visual aspects of open space nor
act as a barrier to physical movement across the open space and are crucial to recreational
activities. A paved taxiway is an ancillary and subordinate use to the EAE cluster subdivision which
was proposed as an airpark. The Board finds the specificity of the findings for CU-89-68/TP-89-701
limits the precedential value of this decision.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 5 of 7
B. FINDING: (E)(5) PL -15 Section 1.030, (21) and PL -15 Section 1.030(80) and PL -15 Section
8.050 (16) Modified by Board Ordinance 84-105
The Board disagrees with the Hearings Officer finding that:
'The Hearings Officer finds PL -15 Section 8.050(16)(8)(2) does not allow a paved taxiway
on land designated open space in a Cluster Development"
"The Hearings Officer finds paving a taxiway is development as that term is used [in} PL -15
Section 8.050(16)(b)(7)."
'The Hearings Officer finds PL -15 Section 8.050(16)(8)(1)(2) and (7) would not allow a paved
taxiway within open space land at the EAE Cluster Development."
As these issues are essentially identical to those cited in Section A, the Board incorporates its
findings in Section A into Section B by reference.
C. 6. PL -15 Section 1.030(80)
The Board disagrees with the Hearings Officer's finding that
":..the term 'present'as used in PL -15 Section 1.030(80), refers to the use of the property at
the time of the application by EAE for its Cluster Development approval."
'The Hearings Officer finds a paved taxiway would not meet the applicable 1989 definition
of open space because a paved taxiway would not be the preservation and continuation
of the 1989 use of the common area/open space land."
The Board did not reach consensus on what "present" meant. Present could mean:
1) the use at the time of the code enforcement complaint about the paved taxiway; or
2) the paved taxiway was anticipated as the "present" use based on the application
materials for CU-89-68/TP-89-701 that referenced a physical connection to Sisters
Eagle Airport; or
3) the use of the land at the time of the 1989 land use application.
Ultimately, the question of what the term "present" meant is moot as the Board agreed flying is a
recreational activity and that a paved taxiway enhances the recreational opportunity of flying.
Enhancing a recreational opportunity is an allowed use in open space.
During the appeal process, the appellant raised the issue of equitable estoppel, and one
commissioner specifically noted his concern with the issue. In a land use matter, the doctrine of
equitable estoppel can at times arise as a defense in a code enforcement action. At least one
commissioner noted concerns that the County should be mindful of a potential estoppel issue. The
paved taxiway has been in continuous use for nearly 30 years. The EAE developer spent
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 6 of 7
considerable time and money in constructing the paved taxiway; a paved taxiway which was
specifically mentioned in the approval of EAE. Homeowners in EAE have testified the presence of
the paved taxiway was a key factor in their decision to purchase their homes. EAE residents
historically and currently continue to use the paved taxiway to take their aircraft to and from the
Sisters Airport. Again, the Board finds itself in the unusual position of making a declaratory ruling
on a land use from 1989 to possibly resolve a dispute between neighboring properties. From the
Board's perspective, the opposing parties would likely benefit from a less litigious approach to
resolving their dispute.
V. DECISION:
Based on the findings set out above, the Board hereby declares the paved taxiway in this case does
not violate the open space requirement of EAE and overturns on appeal the July 25, 2018, Hearings
Officer Decision, which found the paved taxiway did violate the open space requirement.
Dated this day of November, 2018 Mailed this day of November, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE
LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS
FINAL.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 7 of 7
o ` Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of November 28, 2018
DATE: November 20, 2018,
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
DELIBERATIONS: Big Sky Park Appeal, 21690 Neff Road
BACKGROUND AND POLICY IMPLICATIONS:
Deliberations on an appeal of Big Sky Park modifications at 21690 Neff Road. A public hearing
was held on October 29, 2018. The Board established an open record period of 22 days. The
record closed on November 16, 2018, as waived by the applicant. The Board is tasked with
determining if the proposal complies with the applicable sections of DCC 18.116, 18.124, and
18.128.
See attached staff memo for additional information.
FISCAL IMPLICATIONS: None
ATTENDANCE: Cynthia Smidt, Associate Planner
Big Sky Park - MATRIX
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Is the proposal is "harmonious" within the context of DCC 18.124.060?
To determine that the proposal is
"harmonious" within the context of
DCC 18.124.060 the Board will need
The Hearings Officer approved the
to decide if:
proposed park modifications under
1) If the applicant's package of
this section but added conditions
proposed mitigation measures
involving organized events and
Support the Hearings Officer's
If the Board agrees with the H.O.
to reduce off-site noise, visual,
practices, amplification of sound, and
decision
finding without providing a clear
and dust impacts is sufficient,
fencing to mitigate off-site noise and
The applicant proposes an alternativeOrganized
events will generate noise,
understanding of what is included as
organized events and team practices,
2) If the Hearing's Officer's
dust impacts.
framework to mitigate off-site noise,
commotion, traffic, and dust
it will place a responsibility on
conditions and mitigations be
dust and visual impacts.
wholly or partially retained,
The applicant appealed Condition of
Places more demand on ark
p
planning staff and code enforcement
to define the meaning of these
3) If other conditions should be
Approval Nos. 8, 9, 11, and 17 related
infrastructure and access roads
conditions.
imposed, or
to these issues and appealed the
4) If the applicant has not met its
Hearings Officer's "excessively broad
burden -or -proof to
definition of'organized events."'
demonstrate proposal is
"harmonious" within the
context of DCC 18.124.050.
247 -18 -000105 -CU, 247 -18 -000164 -SP, and 247-18-000745-A Board Deliberations MATRIX Page 1 of 2
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Transportation access
The applicant addressed
transportation -related issues raised
by the public and the Board in their
Does the proposal comply with DCC
Testimony dated November 5, 2018.
Several parties contend that proposed
18.124.060(K), requiring that
Does the proposal comply with DCC
The applicant responded to the
park modifications, including the new
transportation access to the site shall
18.124.060(K), requiring that
following topics: service entrance
access to Hamby Road, is not
Staff concurs with the applicant that
be adequate for the use.
transportation access to the site shall
closures at Hamby/Neff intersection;
sufficient and the area will still have
these criteria have been met.
be adequate for the use.
parking, in general, and on street
impacts from traffic and parking on
In the alternative, has the applicant
parking issues and mitigation, in
Neff Road.
failed to meet its burden -or -proof
particular along Neff Road; Hamby
under these criteria?
Road entrance; and questions
regarding transportation study.
247 -18 -000105 -CU, 247 -18 -000164 -SP, and 247-18-000745-A Board Deliberations MATRIX Page 2 of 2
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MEMORANDUM
DATE: November 20, 2018
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
RE: Deliberations; Conditional Use and Site Plan Review for Big Sky Park (File Nos. 247 -18-
000105 -CU, 247 -18 -000164 -SP, and 247-18-000745-A)
The Board of County Commissioners (Board) held a public hearing on October 29, 2018 to consider
an appeal filed by the applicant, Bend Park and Recreation District (BPRD). This memo and the
attached decision matrix are intended to identify issue areas, summarize relevant findings and
testimony, and provide a framework for a decision. Attached, for the Board's review is the record
from and since the public hearing. Staff identifies key Board decision points in this memo.
Written evidence and testimony was submitted into the record at the hearing and during the post -
hearing open written record period. This evidence and testimony is detailed in the Exhibit list at the
end of this memo.
I. BACKGROUND
The applicant, Bend Park and Recreation District, submitted a request for expansion of (and
modifications to) the Big Sky Park/ Luke Damon Sports Complex located at 21690 Neff Road. The
property is located within the Exclusive Farm Use (EFU) Zone. The Hearings Officer approved the park
modifications through review of the conditional use permit (file no. 247 -18 -000105 -CU) and site plan
review (file no. 247 -18 -000164 -SP) except the tall field lighting for the sports fields.' The Hearings
Officer approval included several conditions that restricts organized events and team practices in
certain areas of the park and restricts some forms of amplification. In addition, the Hearings Officer
required fencing near the proposed R/C track to buffer generated noise. The Hearings Officer issued
a decision on August 28, 2018, which was subsequently appealed. The Board accepted review of the
Hearings Officer's decision on September 17, 2018 via Order No. 2018-064.
' The H.O. approved other accessory lighting. Although the H.O. denied the field lighting component in OAR 660-
034-035, Park Uses on Agricultural and Forest Lands, he includes it in the analysis under subsequent code standards
in case the Board of Commissioners or other authority disagrees with his conclusion.
11 7 NW Lafayette Avenue, Bend, Oregon 97703 ( P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 (ia cdd@deschutes .org @ www.deschutes.org/cd
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II. RECORD
At the conclusion of the public hearing, the Board established the following deadlines for the open
record period to allow submittal of evidence, testimony, and final legal argument. Also identified
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below is the evidence and testimony submitted at the public hearing?
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• Evidence and testimony submitted at the public hearing on October 29, 2018
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Public Comments dated October 8 - 29, 2018; Exhibit A
Applicant's Hearing Testimony and Presentation dated October 29, 2018; Exhibit B
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• New evidence and testimony (First Round): November 5, 2018 at 5:00 p.m. During this time,
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the following documents were submitted:
Public (General) Testimony' dated October 29 - November 5, 2018; Exhibit C
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Applicant's Testimony dated November 5, 2018; Exhibit D
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• Rebuttal evidence and testimony ("Second Round"): November 13, 2018 at 5:00 p.m. During
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this time, the following documents were submitted:
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Applicant's Rebuttal dated November 13, 2018; Exhibit E
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• Applicant's final legal argument ("Final Legal Argument"): November 16, 2018 at 5:00 p.m.4
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During this time, the following documents were submitted:
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Applicant's Final Arguments dated November 16, 2018; Exhibit F
III. PARK MODIFICATIONS
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Site Plan Review
18.124.060. Approval Criteria.
Approval of a site plan shall be based on the following criteria.-
A.
riteria.
A. The proposed development shall relate harmoniously to the natural environment and
existing development, minimizing visual impacts and preserving natural features including
views and topographical features.
As noted previously, the Hearings Officer approved the proposed park modifications under this
section but added conditions involving organized events and practices, amplification of sound, and
2 Staff understands the Board may not, to date, have received a copy of all evidence and testimony from the
public hearing.
3 Similar to the oral testimony at the public hearing, numerous comments in support were submitted from the
public including experts in the field of running sporting events, trail building, referees, coaches, health
practitioners, and community organizers and members involved in the sport (e.g. High Desert BMX and Oregon
Adaptive Sports). A majority of opponents included property owners who live adjacent to or near the park.
4 The Board set the final arguments deadline for November 20, 2018 at 5:00 p.m. The applicant submitted
their final arguments on November 16, agreeing to waive the remaining time and thus closing the record on
November 16.
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fencing to mitigate off-site noise and dust impacts. The applicant appealed Condition of Approval
Nos. 8, 9, 11, and 17 related to these issues and appealed the Hearings Officer's "excessively broad
definition of 'organized events."' The appealed conditions of approval are:
8. Neither bike park west nor the R/C vehicle track shall be used for organized events,
including races or competitions.
9. No trail closer than 250' from the northern boundary adjacent to Eastmont Estates
shall be used for organized events, including but not limited to cross-country team
practices or competitions and cyclocross races. No direct trail access from the single-
track trails to the perimeter trail is permitted within the area adjacent to Eastmont
Estates. The applicant may reconfigure the trails outlined in Sheet TD -100 to
accommodate this condition.
11. There shall be no use of permanent amplified sound systems. No sound amplification
shall be permitted for uses associated with bike park west or the R/C vehicle track. To
the extent any other amplification is permitted under prior approvals or County Code,
it shall comply with applicable DEQ and County standards and be used only as
reasonably necessary to start and manage events (e.g. no play by play, promotional
use). Nothing in this condition restricts or prohibits use of amplification in case of
emergency.
17. Prior to use of the R/C vehicle track, the applicant shall erect a minimum 6' high solid
fence that extends at least 20' in each direction (NE/SW) beyond the area in which M
such vehicles will operate to a maximum of 120', to provide a noise buffer for uses to
the west of the park.
As summarized in the applicant's final argument, the applicant proposes an alternative framework
to mitigate off-site noise, dust, and visual impacts. Proposed mitigation measures include:
• Substantial setbacks and buffers as shown on the previously submitted (applicant's)
Exhibit 20
Locating amenities that attract crowds in the center of the park
• A minimum 500 -foot buffer for spectators, event headquarters, and amplified sound
• Landscaping screens
• Limits on the number of larger events
• Event management policies
• Substantial expansion of parking facilities
• Additional signage to prevent trespass
The applicant argues that an outright prohibition on events, as effectively imposed by the Hearings
Officer, is inconsistent with the evidence in the record, is not in line with the purposes for which the
park was originally approved, and is not a desirable outcome for this community.
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The applicant proposed alternative conditions of approval to implement this mitigation framework
and replace the appealed conditions:
• No event headquarters or spectators at organized events will be permitted within 500
feet of the northern or western property lines.
No more than 25 medium-sized (those with 50-300 attendees) event days (days on which
the event actually occurs and exclusive of set-up/take-down days) shall occur in total per
year between bike park west, bike park east, and the RIC track. No more than 8 large-
sized (those with 300 or more attendees) event days shall occur in total per year between
bike park west, bike park east, and the RIC track. BPRD shall not schedule a large event
at bike park west, bike park east, or the RIC track at the same time that a large event is
scheduled at other facilities within the park.
Staff notes that the applicant's proposed condition omits amplified sound prohibition within the
500 -foot proposed buffer. Staff believes this is an unintentional omission and recommends the
Board include it as a part of conditions of any approval.
Board Decision - To determine that the proposal is "harmonious" within the context of DCC
18.124.060 the Board will need to decide if:
1) If the applicant's package of proposed mitigation measures to reduce off-site noise, visual, m
and dust impacts is sufficient, o
2) If the Hearing's Officer's conditions and mitigations be wholly or partially retained,
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3) If other conditions should be imposed, or Fk
4) If the applicant has not met its burden -or -proof to demonstrate proposal is "harmonious"
within the context of DCC 18.124.050.
K. Transportation access to the site shall be adequate for the use.
1. Where applicable, issues including, but not limited to, sight distance, turn and
acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and
bicycle and pedestrian connections, shall be identified.
Z Mitigation for transportation -related impacts shall be required.
3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48,
applicable Oregon Department of Transportation (ODOT) mobility and access
standards, and applicable American Association of State Highway and
Transportation Officials (AASHTO) standards.
Several parties contend that proposed park modifications, including the new access to Hamby Road,
is not sufficient and the area will still have impacts from traffic and parking on Neff Road. The
Hearings Officer made the following finding:
Transportation impacts have been addressed by multiple professional studies submitted
by the applicant. County staff have obtained additional information, evaluated the
proposal and proposed conditions of approval.
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The applicant addressed transportation -related issues raised by the public and the Board in their
Testimony dated November 5, 2018. The applicant responded to the following topics: service
entrance closures at Hamby/Neff intersection; parking, in general, and on street parking issues and
mitigation, in particular along Neff Road; Hamby Road entrance; and questions regarding
transportation study.
Board Decision - Is the proposed transportation access to the site adequate for the use?
IV. 150 -DAY Clock
The 150th day on which the County must take final action on this application is December 31, 2018,
as extended by the applicant in their notice of appeal.
EXHIBITS
Evidence and testimony submitted at the public hearing
A. Public Comments dated October 8 - 29, 2018
B. Applicant's Hearing Testimony and Presentation dated October 29, 2018
Post -hearing new evidence and testimony
C. Public (General) Testimony dated October 29 - November 5, 2018
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D. Applicant's Testimony dated November 5, 2018
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Post -hearing rebuttal evidence and testimony
E. Applicant's Rebuttal dated November 13, 2018
Post -hearing Applicant final legal argument
F. Applicant's Final Arguments dated November 16, 2018
Staff submittal
G. Decision Matrix
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