2001-601-Minutes for Meeting July 12,2001 Recorded 7/26/2001DESCHUTES COUNTY OFFICIAL RECORDS
" Q 2001 601
�JT E S CO MARY SUE PENHOLLOW , COUNTY CLERK
COMMISSIONERS' JOURNAL
07/26/200112:22:00 PM
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Board of Commissioners
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C.OUNTy CLERK (541) 388-6570 • Fax (541) 388-4752
www.deschutes.org
Tom De Wolf
Dennis R. Luke
MINUTES OF PUBLIC HEARING Mike Daly
DESCHUTES COUNTY BOARD OF COMMISSIONERS
THURSDAY, JULY 129 2001
Present were Commissioners Tom DeWolf, Dennis Luke and Mike Daly; George
Read, Paul Blikstad and Kevin Harrison, Community Development; Laurie
Craghead, Legal Counsel; Barney Lerten, media representative; and twelve citizens.
Chair Tom DeWolf opened the hearing at 3:00 p.m. He explained that this public
hearing is being held regarding the final master plan review for Eagle Crest III.
The burden of proof is all in writing, and the Board will hear from the applicant
and any opponents, back and forth as necessary.
Commissioner Luke moved that the applicant be able to make a request that the
Board enter the usual opening statement into the written record rather than read the
entire statement. (The applicant agreed that this was acceptable.)
Chair DeWolf entered the introductory statement into the record at this time
(attached as Exhibit A.) Chair DeWolf then asked if any of the Commissioners
wished to disclose any pre -hearing contacts.
LUKE: Just a letter that all the Commissioners received, which has already
been given to staff.
DALY: The same here.
DEWOLF: That letter will be entered as part of the record.
At this time Chair DeWolf asked if any members of the audience had any
challenges to any of the members of the Board hearing this issue.
No response was offered.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 1 of 41 Pages
Eagle Crest III Final Master Plan Review
Quality Services Performed with Pride
Paul Blikstad then read a statement detailing application for the Final Master Plan
approval for Phase III of the Eagle Crest Resort (attached as Exhibit B).
Chair DeWolf disclosed at this time that he did speak with Mayor Ed Fitch that
morning, and asked Mayor Fitch where the negotiations stood with respect to
Eagle Crest being able to hook up with the City of Redmond's sewer system. He
said that it was Mayor Fitch's impression that the negotiations should be completed
within the next few weeks, and everything looked like a "go". Chair DeWolf
stated that was the extent of their conversations on this issue.
Legal Counsel for the County, Laurie Craghead, joined the meeting at this point.
Paul Blikstad said that the condition of approval relating to sewage disposal, listed
under condition # 17 of the written decision on the Eagle Crest III conceptual
master plan, is the only item that staff feels is necessary to be discussed at this
time, unless the Board or members of the public wish to bring up other issues.
Mr. Blikstad then pointed out that Tom Hall from the State Department of
Environmental Quality is at the meeting, and would speak to the group. He also
explained that he met with Laurie Craghead and the applicants earlier in the day,
and the applicants will testify extensively about their desire to be allowed to
temporarily connect Eagle Crest III to the existing Phase II septic fields.
He further said that staff believes there is sufficient flexibility in how condition
# 17 is written, should the Board decide to interpret the condition in that way;
which is solely at the Board's discretion. He stated that the decision doesn't
specifically state that Phase III has to be initially connected to the sewer system; it
says that there has to be a binding agreement with the City and within 18 months,
and that system has to be in place by then.
DEWOLF:
My statement would be that it appears you are looking for an interpretation of this,
that it isn't clear enough, because as I read this I can see there is the potential for a
little bit of confusion. But it was really clear in my mind, especially after going
back and reading through the minutes, that there was nothing in Eagle Crest III that
was going to be hooked into the current septic system of Eagle Crest II. Period.
BLIKSTAD:
That's correct. I listened to the tapes from the May 23 Board decision date, and
that was clearly the decision.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 2 of 41 Pages
Eagle Crest III Final Master Plan Review
DEWOLF:
It doesn't matter to me if lots are sold, if construction starts, or whatever can be
allowed there. What I was thinking was that prior to somebody getting a key to the
house, it will be hooked up to the sewer system.
BLIKSTAD:
We had that discussion with the applicant this afternoon. So I was going to let
them make their case to you.
LUKE:
Are the tapes and written minutes clear that we want this done? Do they
correspond, where we said that, for the record, no homes will be built in Phase III
until this happens, meaning hooking up into the City of Redmond's system, or
constructing their own system? And that both Phase II and Phase III will hook into
Redmond, or they will come back to us with another proposal for both phases if
they can't connect to Redmond?
So, really, all they are able to do at this point is to construct roads, put in curbs,
sidewalks, utilities and so on. No homes would be constructed, and then the
motion was made. Is that what you heard on the tape?
BLIKSTAD:
The minutes and the tapes are pretty close.
DALY:
I read this very carefully, and met with Laurie (Craghead) just a little while ago.
There's one key section where Paul (Blikstad) said, "I think the key issue for the
Board, based on testimony that has been heard, is that the sewer facilities at the
resort and the problems they've had .... Eagle Crest is committed to connecting
to the Redmond sewage treatment plant, or they will install their own system
before any homes are built in Phase III".
Then, at the last, Dennis (Luke) made a statement that, "for the record, no homes
will be built in Phase III until this happens ... and both Phase II and Phase III will
be hooked up into Redmond or they will come back to us with another proposal for
both phases if they can't connect to Redmond". My point is, Dennis made this
statement but I can see nowhere where Tom and I agreed with it, after the
statement was made.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 3 of 41 Pages
Eagle Crest III Final Master Plan Review
BLIKSTAD:
There was no discussion on Commissioners DeWolf or Daly's part on that specific
issue.
DALY:
This is a statement that Dennis made for the record and it doesn't necessarily mean
that I agreed with it, because I didn't make a statement at all. I just want to point
out that the record doesn't indicate that I agreed with what he said.
LUKE:
But, from a logical standpoint, if you look at the statement directly before the
motion, and you voted yes on the motion .... well, I'm not going to go there.
There may be things that are on the tape that aren't on the written record where
these questions were asked. I didn't ask these questions of staff, I asked these
questions of the applicant's attorney and the representatives of Eagle Crest, and
there were heads going up and down and there were yes's being made in the
audience. That part isn't in the written record either.
BLIKSTAD:
The written record is pretty close to what is on the tapes.
DEWOLF:
The fact is, if there is confusion here, what we are doing today is not modifying,
only clarifying, what we intended regarding condition # 17.
BLIKSTAD:
Yes.
DEWOLF:
So, if we clarify that, however specific we need to be with that clarification, that's
what we're doing here today.
BLIKSTAD:
We believe that's the only real issue on this final master plan.
[MIN"
I would ask my fellow Commissioners to listen to the fellow from the DEQ and to
not pre judge this issue regarding whether we need to require this connection to the
City of Redmond. To me, there's a lot of information we don't have yet.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 4 of 41 Pages
Eagle Crest III Final Master Plan Review
DEWOLF:
If, in fact, my interpretation was, at the time we made that decision for the
conceptual master plan, that it would be hooked up to the sewer system before
people occupy homes, if that was my understanding then, what I'm hearing from
you, Paul, is that I can't change my mind on that. That was my state of mind, and
that is what I based my vote on. If I were to change that, that would be modifying,
not clarifying. Correct?
BLIKSTAD:
I'm not so sure what was in your mind because there were no statements that I
recall that you, as Commissioner, made. The statements did come from
Commissioner Luke, and in essence he said that with this stipulation, he's
comfortable with it.
11OJN
What I was trying to get, because nobody really said, was some clarification of
what was going to happen in Phase III if we approved it. To be quite truthful, if
they had said that night that they were going to hook up Phase III houses into that
septic system, I would have voted no. There is no question in my mind.
1
I would agree with you. At that time I would have, too. But my point is that at
that time they didn't really have complete information for us on what was wrong
with the system and what the capacity really is, and the function of the system.
The letter we got the other day at least gives me an inkling that maybe there's more
information we need to learn before we make this decision.
LUKE:
That's why we're here.
BLIKSTAD:
Based on our meeting with them today, there's a lot more they want to give to you,
which now they have an opportunity to do, and which they didn't have at the CMP
hearing. Since the oral testimony was closed that night, they could not submit it.
DEWOLF:
So we can take new testimony and change our position? Because my position was
that they would not be hooking up into the Eagle Crest II system. That was my
position at that time, and it was very, very firm.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 5 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
Is that the position of legal counsel, that we can change this?
CRAGHEAD:
There is an argument that the wording itself -- the wording in the decision itself --
does leave some leeway. However, in a sense you did a prior interpretation of that,
at the time of the motion. It would be a matter of changing your interpretation of
what that condition would have been.
DEWOLF:
So I need to lie about what I just said?
LUKE:
I would point out, and I would ask legal counsel also, that the night we made the
decision and, as Commissioner Daly said, his decision then was different than it
might be now, and that's fine -- this room was full of people who had an
opportunity to testify. If we are going to change this criteria, I surely would like to
see them have an opportunity to testify again, and be notified again that we may
change our decision, if that's what is going to happen. Because I think that it is
extremely unfair to them for us to come to one decision and then change it.
BLIKSTAD:
You made no decision that night; it was rendered on May 23, and they got notice
of that decision.
DEWOLF:
But it was based on the testimony from that night.
LUKE:
The people who were sitting here heard very clearly that no Phase III houses would
be connected to the septic system just before the motion.
BLIKSTAD:
There were no statements to that effect that I heard on the tapes of April 10. I
listened to the part where you discussed the sewer at the original hearing. The
decision was made in May after the hearing was closed and the record was closed.
Kevin (Harrison of Community Development) felt that it was important that I listen
to the tapes, which I did.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 6 of 41 Pages
Eagle Crest III Final Master Plan Review
Chair De Wolf then opened the public hearing.
TOM HALL:
I work with the Department of Environmental Quality, as a water quality specialist,
working with large on-site treatment systems. I will briefly describe the status of
the Eagle Crest II sewage disposal facility.
He then read his prepared statement, attached as Exhibit C.
LUKE:
There have been only 19 days from the last discharge on the ground. They did all
that work in those days?
HALL:
I don't know when the construction occurred. I think five new cells are on line.
The DEQ is in the process of renewing their permit, which will also contain
conditions.
DEWOLF:
Why the number, 68,000 gallons?
HALL:
It's probably part of the proposal from the engineer. It was in the original permit.
LUKE:
Do they have a valid permit now?
HALL:
They do have one. The permittee applies prior to the expiration date, and the old
permit remains in effect until the new one is issued. The old one expired, I think,
in 2000, but we at DEQ have a big permit backlog. It is written in the State statute
this way.
DALY:
Has this gotten into the groundwater? Has there been any noticeable rise in the
nitrate level?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 7 of 41 Pages
Eagle Crest III Final Master Plan Review
HALL:
There are two monitoring points. One is fifteen feet down, and the monitoring
well is located in the upper aquifer at about 200 feet.
DALY:
Is the nitrate level okay in the well?
HALL:
It's about 2 million per liter, and drinking water standard is 10 mpl. The DEQ says
5 mpl is okay. This is well below drinking water standards. The tests were done
over the past couple of years, and are done every six months or so. It is a confined
aquifer.
LWIM
Was the discharge to the ground liquid, or were there any solid materials?
HALL:
There was some suspended material in it, fine material that could move on through
a septic tank. But anything would have to get through the screening.
LUKE:
Do you have any idea of how many additional homes could be built in Phase II?
Would build -out saturate the system?
HALL:
They found that the older cells will take about 1,300 gallons per day; and the
newer cells would take something over 1,800 gallons per day. There are maybe 24
cells out there, and it comes out to about 30,000 gallons per day of capacity for the
whole system, and that's using the figures of the cells that have aged for a year and
have slowed down a little bit in their infiltration capacity. Right now, there are
14,000 to 20,000 gallons per day of sewage flowing into this drainfield system.
LUKE:
In your inspection of the failure out there, did you go out and inspect when they
opened the lines? Do you have any thoughts on why the existing system was not
able to carry the load, causing the discharge to the surface?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 8 of 41 Pages
Eagle Crest III Final Master Plan Review
HALL:
They looked in detail at the system, and did some digging next to the disposal
trenches to see what was happening on the trench sidewall surfaces and so forth.
Typically in a drainfield, it will age and will begin to form a biological mat, which
has a certain infiltration capacity that is normally slower than the soil is. They saw
that. They saw some mat formation on the sidewalls.
Also, the soil doesn't accept the water as readily as we had anticipated. And there
was a problem with the dosing and getting too much liquid into some of the cells
too often, so that they stayed saturated longer, which caused the mat formation to
accelerate. They found a number of reasons for the slowdown. They just weren't
out ahead of that enough with the drainfield installation.
LUKE:
Is there room for expansion to add additional cells on top of what they have added
if this system fails?
HALL:
I think they are pretty close to maximum in the area we originally looked at, but we
could look at additional areas if necessary. (Some discussion came from the
applicant, off the microphone.)
LUKE:
I am concerned that if houses from Phase III are allowed to hook into the existing
system, there could be a failure of the system. Plus, there's not a lot of incentive
for them to quickly hook into Redmond then. Are you going to require anything
that makes them hook into Redmond if this system is still functioning?
HALL:
That is one of the things that is going into the new permit. Until they actually have
a signed agreement with the City, we can't require that they hook up to the City's
system because it may not happen. But then they may have to build their own
system, once they meet the maximum 68,000 gallon per day flow.
LUKE:
How close are they to that number?
HALL:
It's at 14,000 to 20,000 gallons per day right now.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 9 of 41 Pages
Eagle Crest III Final Master Plan Review
DALY:
Are these existing drainfields, including the new cells that they built, able to handle
up to 68,000 gallons per day?
HALL:
No, they won't. All they can handle is about 30,000 gallons. They're about
halfway there now.
DALY:
So you feel comfortable that they could double what they have now and they'd still
be okay?
HALL:
They'd be at capacity, but there's no reason they can't. For houses on a community
system, we figure about 300 gallons per day per residence. For design purposes,
it's way below that actual flow. I don't remember specifically, but we did look at
some figures, and it seems like it is around 150 gallons per day.
DALY:
In this letter that we got dated July 6, there is some indication that they feel they
had some vandalism in some of the system.
HALL:
I heard about that, but don't know any specifics.
DALY:
If we were to approve Phase III to be hooked into the Phase II septic system, do
you have any concerns?
HALL:
We approved that some time ago. I think right now they've got a real good handle
on what the system is doing, how well it's doing, and would be able to handle some
of that, but obviously not the whole development. There is some unused capacity
available, once they get things expanded. I think they could do that and meet the
bottom line, which is keeping sewage off the ground surface.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 10 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
There was a lot of testimony that it took a long time for Eagle Crest to respond to
the discharge problems. How long were you aware of this problem, and, in your
opinion, was the response time reasonable?
HALL:
We went out on an inspection in July 2000 and found some surfacing sewage.
Before we left the site, they had already made calls to a contractor to get in there
and start repair work. I've found that they have been very responsive. They added
some additional drainfield, but other problems came up a year later. I think they
have been very responsive.
DALY:
When you were observing the repairs to the system, did you see cells that didn't
actually get any effluent? Or was it that the whole system was overloaded?
HALL:
It was a distribution problem. Some of the cells weren't receiving, and you could
tell that the vegetative growth over the top of them wasn't as significant as it was
on the others. That can also occur within cells, too. One of the things they
discovered was that there was some flow of water that had been dosed into
individual disposal trenches flowing back into the lower trenches through the
distribution system.
DEWOLF:
Can you say with any degree of certainty, in your opinion at this point, whether we
are going to have any more problems with it?
I wouldn't guarantee it, no. I mean, this is a septic system. You're always going to
have a higher level of reliability with a sewer system. But I think they are right up
there just behind sewer systems in reliability.
DALY:
Has Phase II been completely built out?
HALL:
Not yet.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 1 I of 41 Pages
Eagle Crest III Final Master Plan Review
DALY:
So, in other words, we'd be adding to Phase II in addition to adding new houses in
Phase III.
HALL:
They would have to carefully balance where the flows are coming from and how
much they are adding.
ALLEN VAN VLIET:
I'm Allen Van Vliet, the manager of construction at Eagle Crest. If I were sitting
in your shoes, I'd be asking all the same questions. I would be very concerned,
especially after what you heard at the conceptual master plan hearing on April 10,
and that's not a day I'd like to remember too much. In the land use business you go
through hearings like that, and this isn't a happy experience.
Frankly, right or wrong, we were having problems with our system and there is no
question that we needed to respond. I think we've done that. The professional staff
that we hired, our on-site management staff, and everybody else had to answer to
me. We spent over $165,000 doing that over the last six months or less. That
includes engineering and materials and those types of things.
LUKE:
My experience with Eagle Crest is that it has always been a good partner in the
community, especially to Redmond. It was really a surprise to hear that kind of
testimony.
VAN VLIET:
Right. It doesn't feel good to anyone, with the press coverage and negative
comments. We're here today to present testimony for the final master plan. Tom
Walker will explain the system and its operation and where we are today. He'll
explain what he thinks the system can handle, and fill in some voids here.
DEWOLF:
Let's cut right to the chase. I don't think he's going to be able to convince me that
what I believed on May 23 is different now. If in fact my job today is to clarify
what we meant in condition # 17, I know what I meant. That being the case, what
I'd like to know is this. If, in fact, in Eagle Crest III you could do all site work,
prep work, road construction, even the construction of homes and the sale of lots
now; and sixteen months from now you are hooked up to the Redmond sewer,
what negative impact would that decision have for Eagle Crest Resort?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 12 of 41 Pages
Eagle Crest III Final Master Plan Review
VAN VLIET:
Would you buy a home, or a lot to build on, and not possibly get a construction loan
or home financing, and let that investment sit there without you being able to use it?
DEWOLF:
How long does it take from today to complete a home and have it ready to occupy,
with the streets in, all the infrastructure in?
VAN VLIET:
If we went through the land use process for a subdivision plat, we'd go through that
planning process, probably a couple of months for that. Then the HUD filing
process takes maybe a month or two.
Then there's the architectural review and building design review of any homes that
would be submitted, probably thirty days for that. So you're looking at about five
months. Typical home construction is six to twelve months, depending on
elaborate the home is, and the weather. So you're looking at a year or a year and a
half. Quicker builders might get it done in five months. We average about fifty
homes a year constructed at Eagle Crest.
DEWOLF:
This was to be done with Redmond and hooked up within eighteen months, which
will be about December next year. The way you've just described it, that sounds
like about the time frame that we're looking at anyway. I don't see the negative
impact.
VAN VLIET:
The negative impact is that someone would want to build, and they just won't buy a
lot until they know they can get financing and use their home. So you're not going
to see any sales until that connection has been made.
DEWOLF:
But the house isn't going to be ready until then anyway. Let's say there is three or
four month's leeway on the fastest of the builders there. How much impact is a
few months?
VAN VLIET:
How much impact is there of the incremental hook up of just a few homes either,
on the existing system?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 13 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
You said you do about fifty houses a year. That's a lot of houses into a system that
up until about a month ago wasn't functioning, with the homes that are already
there. That's not incremental.
DEWOLF:
Part of my difficulty is facing the people who stood here, some of them in tears; if
we approve this hookup into a system that now has only been functioning properly
for about five weeks, you're not the ones who are going to get those phone calls.
VAN VLIET:
We've operated systems in Eagle Crest for 17 years; we've got a system that
operates on the other side of the highway, and there have been only thirteen or so
incidents over that period of time.
DEWOLF:
We had testimony here that people had been making phone calls for a year without
getting a return call. Whether that was true or not, you didn't refute what the
people testified about. We had people with pictures who said that this is raw
sewage lying in our back yard; you didn't refute that. The testimony that we had
that night indicated that everything they were saying was true.
VAN VLIET:
I didn't look at the pictures, but there is no raw sewage that could get on the surface.
DEWOLF:
You didn't say that. No one claimed that during the hearing. That was the
testimony we had on which we based our decision. The opportunity was there to
say it was overblown. None of that testimony was offered. They made a claim
and none of those claims were countered. All I have to base a decision on is what
they said, and no one refuted it.
VAN VLIET:
I understand. We'd like to continue with our testimony today, and maybe our
testimony will have a different impact on you.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 14 of 41 Pages
Eagle Crest III Final Master Plan Review
DEWOLF:
I'm telling you now, it's not going to. I want to be really honest with you. I would
be with Dennis, since for me to redo a decision, which is what I believe you are
asking, I would have to go back and hold a new hearing and allow those people to
come here so we could hear both sides of the story again. I'm just being honest
with you.
I want to reiterate that I think Eagle Crest and Jeld Wen are good organizations; this
is like you said, a black eye for your company. We're all trying to get through this.
VAN VLIET:
With the resources we have, we should not have been in that position. No doubt
about it. We've made every effort to manage our system correctly.
TOM WALKER:
I'm Tom Walker of W&H Pacific. I do want to address the sewage system. I'll
have Liz Dickson and Richard Allen to address other questions relating to the
sewage system.
In the land use hearing, you did ask for a status report on our sewage disposal
system and the ability to treat the sewage of the resort. We were shocked as well.
We came through the July 4th holiday weekend just recently, which is likely the
highest flow weekend of the year, and we had absolutely no problems.
Our flows have also been high from Memorial Day forward and we've had no
problems. My comments this afternoon will demonstrate that Eagle Crest has done
a great deal to work on that system to demonstrate that you can have confidence in
the system.
LUKE:
Do you monitor the flows every day? And how much occurred on July 4thq.
WALKER:
Yes. July 4th was mid -week. On July Stn it was 28,000 gals per day, the highest
use day.
LUKE:
It's been said that the capacity is 30,000 gallons. That's just 2,000 gallons short.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 15 of 41 Pages
Eagle Crest III Final Master Plan Review
WALKER:
We have several things that have added dramatically to the system. For example,
we have the alternate system owned by the developer, the diversion sewer; it can
direct the flows to the system that has capacity. Overall we probably have 70,000
gallons capacity. Because of the diversion sewers that we built, we can direct
those flows to the system that has capacity.
LUKE:
You're saying that there's capacity over Phase I, is that where we're moving this
liquid?
WALKER:
It's not Phase I. It's a developer owned facility off Cline Falls Highway.
LUKE:
What is kicking into that now?
WALKER:
A big portion of Eagle Crest II.
LUKE:
And the capacity of that system is how much? Also, how much is kicked in by the
hotel and other things that normally feed into it?
WALKER:
Tom Hall has talked about the capacity of our cells. A year ago, we designed our
systems believing that we had a capacity of 1,800 gallons per day per cell. About a
year ago our actual disposal, our actual flows, averaged about 1,500 gallons per
day per cell.
Today, our flow per cell is at 1,100 gallons per day, because we've added cells and
also because we also have put in the diversion sewers that let us direct the flows to
the systems that have the capacity. We have made critical improvements to our
control system. These have addressed the uniformity of distribution in our
systems, and dramatically improved the capacity of the systems.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 16 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
You put on the record that you have a total capacity of 70,000 gallons. But you
haven't put on the record how much is actually going into that from the hotel, the
different phases, and the other things that are there.
WALKER:
I've got it right here. Remember, we are obligated under our permit to record flows
every single day, and we do that with a flow meter and also with our meters. All
these records go directly to DEQ every month. In June, a busy summer month, our
average flow to the system was 19,500 per day, into the Eagle Crest II system. The
flow to the expansion system was 28,600. So there was a total actual flow in June
of 48,000 gallons per day, compared to a capacity of 70,000 gallons per day.
LUKE:
Before you added the other cells, what was your capacity?
WALKER:
We added a total of eight new cells; five at Eagle Crest II and three at the other
system. Those cells have a brand-new capacity of about 14,000 gallons per day.
We always had excess capacity in the developer -owned system. Until we built the
diversion sewers, we weren't able to do that. Until we realized all the problems
that we had, we didn't come up with the innovative idea of building segments of
sewers to give us the control to divert flows.
DEWOLF:
I need to ask staff a question. My difficulty here is, as Paul (Blikstad) said, we're
here to clarify, not to modify. I want to really understand that. Because, if in fact
all we are doing today is clarifying what we meant on May 23, I already know the
answer to that. If in fact what we are looking for is a modification, it seems to me
that we need a public hearing to modify that condition. If that's the case, Tom
(Walker) is going to go through all of this again at that time. Am I wrong?
KEVIN HARRISON:
My best advice to the Commissioners would be is that their role and purpose here
is to clarify condition # 17, and to articulate what they meant by that condition; and
to look at the evidence and see whether the final master plan meets the language of
the condition. If the applicant would like to modify that condition, then a separate
application would be required, and it would be a separate hearing.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 17 of 41 Pages
Eagle Crest III Final Master Plan Review
DEWOLF:
I guess I am asking how we should be proceeding here. I know what I meant,
good, bad or indifferent.
LUKE:
We need some legal help here.
DEWOLF:
It may well be that the extent to which you've gone to addresses these problems
actually addresses these problems. But today that is what I would be doing,
coming to a different conclusion.
DALY:
The question is, can we do that.
LAURIE CRAGHEAD:
In looking at the code, it does say that an applicant may modify an approval if six
months have gone by since the previous approval. What it doesn't say is that the
Board can't on its own modify without having a hearing. It would set precedence.
We would have to set up some really good findings as a basis as to why this is a
unique situation.
DEWOLF:
You're saying that there's no modifying of this condition no matter what we do for
six months? Can we notice a public hearing on that condition for thirty days from
now and hold a hearing and modify that condition?
CRAGHEAD:
What I'm saying is that it hasn't been done before. It's been a hard and fast rule
before to not modify a CMP until at least six months has gone by. Code says an
applicant can apply for a modified approval anytime after a period of six months
has elapsed. It doesn't say that the Board can't on its own motion modify it. You
would have to go back and do a reconsideration of your decision; you could hold a
public hearing. It has to have unique circumstances, and you need some good,
hard findings to uphold this.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 18 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
I have always built on lots that were already available to build on. What we would
be doing is approving the final master plan today. What is the process with the
county if we approve the FMP today?
HARRISON:
Then they would be eligible to apply for a tentative plan for the first phase of the
subdivision. We could grant tentative approval, and one condition would be that the
sewer line is connected to the lot line of each of the proposed lots. They could come
back and apply for an improvement agreement to meet that condition through a
security bond, for example, allowing them to record the plat before the sewer line is
actually extended to the lot lines. I don't know how long that would take.
DEWOLF:
Do you agree with the earliest testimony that home construction probably wouldn't
begin for five months?
HARRISON:
Typically when we're looking at home construction, even with a ready and
motivated applicant, we're usually looking at six months to a year after the plat is
finaled. In this case, they have already applied for the tentative plat. They may be
farther along.
WALKER:
My guess is that we could start a home in five months, and somewhere between 11
and 17 months before it would be completed. As Allen pointed out, there should
be very few homes that will actually be on the septic system, but we'd like to be
able to tell our customers that if their house is built, they can move in.
DEWOLF:
We're kind of off track here. I want to get to some resolution. If in fact we are
looking at realistically a year before the first house could be built, and if in fact
sixteen months from now, which is the far end of the time period to hook up to the
Redmond system, that could conceivably take place within a year, too.
In that case, does Eagle Crest want to go through another appealable hearing that
could tie this up even longer, rather than accept the fact that you are going to get
hooked into the Redmond system within sixteen months? Maybe you've got a few
sales that get delayed because of a possible three-month lag.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 19 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
There's another question, too. On top of that, Phase III doesn't operate in a
vacuum. You have Phase II that is already there, and testimony has been that there
are approximately fifty houses built a year, using the design capability of 300
gallons, that's an additional 15,000 gallons from those houses.
WALKER:
We have a very clear incentive to spend our capital dollars on the permanent
hookup into Redmond. The concern is that we won't have any sales. We have no
inventory left at Eagle Crest, and we don't believe we can sell without the full
package, which means that people can move into their new home. Without sales, it
will take us a long time - a year at a minimum - to get funding for the sewer
hookup. We would essentially have to stop sales, put a moratorium on sales, for
six months. That would be devastating.
DEWOLF:
That doesn't sound reasonable to me. The sewer and the construction of house are
married to each other, and they will occur at the same time.
WALKER:
We can't guarantee that to an owner. We have to represent the facts to buyers. The facts
are we are working with the City of Redmond, but we can't guarantee those things.
DEWOLF:
Three weeks from now, you may have a signed agreement with the City. At that
point, that argument no longer exists.
WALKER:
It still does. The reason is that there are too many approvals involved. For
example, we expect to go down the ODOT right of way. We've worked with
ODOT, and don't think we'll have any problems, but we still have to get our
permit. There are some sections of right of way that the City of Redmond actually
has to purchase within the City of Redmond. We will do everything in our power
to make this work, and we have every incentive to make it work, but can't
guarantee it to folks. We have to represent this.
LUKE:
Can you guarantee to us that if you hook up 40 or more homes into the current
system that it won't fail?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 20 of 41 Pages
Eagle Crest III Final Master Plan Review
That guarantee is already in place. It's in place through the WPCF (water pollution
control facilities) permit.
LUKE:
Is that the same permit that was in place when the system failed?
WALKER:
That's right. The bottom line is that neither the DEQ nor Eagle Crest took the
failure lightly. We have a good story to tell about how that happened. A
tremendous amount of capital expenditures and lots of effort occurred to fix it.
198014
You mentioned when DEQ was here that you have expansion area that does not
have cells in it. How much expansion area is that?
WALKER:
The original design on this system would have accommodated the 68,000 gallons
per day. In addition to that, we have capacity off of Cline Falls Highway.
LUKE:
Is there any other bare land available for expansion?
WALKER:
There is other land available if necessary.
RICHARD ALLEN:
(Attorney with Ball danik; attorney Nancy Craven is on sabbatical.) There is a
potential convergence in the timetables, so that if everything works out, someone
who bought a lot and began to build a house would complete that house about the
time we make the connection to the City of Redmond.
The problem as we see it is, first of all, when we began this process some time ago,
we planned it so that there would still be a fair amount of remaining inventory in
Phase II at the time we were beginning to bring Phase III on line. So if there were
any glitches, we'd still have something to sell in Phase II.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 21 of 41 Pages
Eagle Crest III Final Master Plan Review
ALLEN:
The problem is, of course, is that after we had an approved CMP and an approved
FMP, the land use board of appeals essentially sent the whole thing back to square
one. We lost a year. There goes our cushion, and now we are out of inventory in
Phase II, with the exception of eight lots.
With respect to Phase III, the problem is, when somebody comes in to purchase a
lot, unless they happen to be inordinately wealthy, they are going to have to go to a
financial institution for a loan, whether to buy the lot or to build the home, or both.
We cannot right now, even with all the best intentions, and even if we have a
signed agreement with the City of Redmond, tell someone on what date we are
going to be able to have that connection to the City. There can be any number of
things that go wrong, including that it puts us in a situation where someone wants
to challenge any approval we need to connect to the City of Redmond. They
would have a huge amount of leverage, as they could essentially prevent or delay
development in Phase III whether there are any merits to a challenge or not. We
can't tell a financial institution when the hook up will happen, so they won't lend
their funds.
DEWOLF:
Okay, let's assume that you can't sell lots. Tell me how I can make this decision
today to change what I believe my decision was on condition # 17. Or, do you
believe the appropriate thing to do would be to schedule a hearing on this?
ALLEN:
I believe that the findings and decision that the Board adopted clearly allows for
the interim use of the existing system.
DEWOLF:
Then what you are reading there is a lie. I would be lying if I were to tell you that.
I am telling you, from the bottom of my heart, is that my intention was, and what I
heard that day lead me to the conclusion, that there's no way in the world that
anything from Eagle Crest III is going to be connected into the Eagle Crest II
system. That's the honest truth. That's just my vote. Any other reading of that
would be false. If that were the case, then all three of us could then change that
condition, in your opinion.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 22 of 41 Pages
Eagle Crest III Final Master Plan Review
ALLEN:
If that were what the condition says, you could not. There's a distinction here, and
I don't intend in any way to minimize what you believed when you were adopting
it. But in the legal sense of what is your decision, you could say "green, red and
blue" just before you adopted a decision, and if the decision says "yellow and
purple"; the decision is yellow and purple, if that's what the written decision says.
In this case, I don't think it is quite as clear-cut as that, but there is clearly a
discussion in the findings and decision regarding the sewage treatment system
where you have approval standard O, which refers to adequate utility systems,
including water and sewer. It specifically notes that there is DEQ approval of a
water pollution control facility permit to allow Phase III to discharge to the
existing system, and that the existing system has adequate capacity to be able to
handle that.
Then it goes on to discuss a connection to the City of Redmond. If the conceptual
master plan was not going to allow any use of the Phase II system, the Phase II
system would be irrelevant and there would be no need to have this discussed in
the findings.
As I look at condition # 17, it dovetails with that pretty well in that it says there has
to be an agreement in place before we can have lot sales, an agreement to that
connection to the City of Redmond. But it does not say that once you have that
agreement and you have lot sales that there can't be any construction or any
connection during that interim period. What it does is say the existing system is at
most a transition; its days, by virtue of condition # 17, are numbered. It's going to
have to go out of use.
Certainly when we filed the application for the conceptual master plan, it had three
alternatives for dealing with sewage. One was the on-site treatment system that
now exists. The second was a connection to the City of Redmond. The third was
developing a new on-site sewage treatment plant at Eagle Crest.
On May 1, Tom Walker wrote a letter that said, we think we can connect to the
City of Redmond and we're willing to do that. But his letter also expressly said
that until that connection is made, we need to be able to continue to use the
existing system. Somehow we went through this whole process believing that our
application clearly said "X" and that was being carried through the decision, and
that's not how you're viewing it.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 23 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
Clearly, your application may have said that. But that public hearing destroyed
that. We were talking about hooking into a system that was coming to the surface,
there was no way in the world that thing would have been approved. Again, if I
would have had to vote that night and you wanted to hook up Phase III to that
sewage system, I would have voted no. No question in my mind.
DEWOLF:
Then you would have appealed to LUBA, and we would have been back at having
hearings again. I agree; that's how the vote would have gone that night.
WALKER:
We did rebut in writing. Remember, the hearing did close that night and we
weren't able to testify beyond that except in writing, and we did correct a lot of
those things in writing.
LUKE:
I would be more than willing to sit down after six months after the system is
operating with no failures and take a look at this. By then you'll know if you're
going to hook into Redmond's system or build your own. But not after one month.
Legal counsel isn't sure we can do that.
ALLEN:
We heard some statements earlier regarding how can we believe after a couple of
weeks that the system is working. Our perspective on it is a little different. The
only time that we ever got a notice of non-compliance was the time between the
notice for the public hearing for the CMP and when the Commissioners voted.
Frankly, we don't think it was coincidental. The only window in time in the
operation of the Phase II where we had NON's was then. We believe there may
have been some inherent problems with the system, but we believe there might
have been some vandalism or tampering of the system.
DEWOLF:
Was there any evidence of this tampering put into the record?
ALLEN HANSLEY:
There's evidence of cut wires, and people were noticed in the area, valve covers
were taken off, that sort of thing. In one instance a line was pressure tested and it
was working perfectly, but it started surfacing later in the evening.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 24 of 41 Pages
Eagle Crest III Final Master Plan Review
1980 a
DEQ testified that a year ago you had a surfacing. Your attorney just said that the
only time you had a surfacing was the time period between the application and the
hearing. Isn't that a non-compliance?
HANSLEY:
There was no notice of non-compliance sent.
DALY:
What about the rocks you showed us that were in the valve?
HANSLEY:
They kept it from working correctly. When we read through findings and decision,
we based our opinion on whether we should go ahead with FMP. We were relying
on condition # 17.
DEWOLF:
So were we.
HANSLEY:
So, that's where the confusion really comes in. We would not have asked for this
hearing if we knew there was such a disagreement.
DEWOLF:
When I got the letter, I was just shocked. How could anyone come away from that
hearing believing this? I'm no lawyer, as that's a bizarre way to live your life. My
difficulty is you are telling me green and yellow here, purple and blue over there is
okay. I can't. I don't know how to do that.
ALLEN:
I'm not saying it's okay. I'm just saying that there's room to interpret the CMP
approval in a number of ways. What I am saying is that what governs this - if it
had been appealed to the Land Use Board of Appeals - the written findings and
decision would say to LUBA that what the Commissioners said during their
deliberations doesn't matter. All that matters is what they put in writing in the
decision.
DEWOLF:
I would have been fine for LUBA to do that. I just can't do that.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 25 of 41 Pages
Eagle Crest III Final Master Plan Review
DALY:
I keep going back to the public hearing. I admit that at the time, I felt that this
system wasn't repaired in a timely manner, and I would have voted to not approve
anything. The fact that you showed some rocks, I had same thing happen to me on
a system; I understood the problem. I understand how these systems can fail. In
my mind I wanted to give you guys a chance to fix it. At that meeting I hadn't
made a decision to make you send it all to Redmond. I know systems can be fixed,
and I wanted to see what would happen, especially with the new information and
DEQ's opinion.
DEWOLF:
The guy from DEQ said he couldn't guarantee it won't fail again, and that hooking
into the City's system is better. We've had a year of problems, and forty days of
things working well.
DALY:
There's a lot of testimony tonight showing they have new thing's in place.
DEWOLF:
Is forty days enough time to convince you that it will keep working?
DALY:
DEQ is the final authority. I have an open mind, and I have a lot of faith in DEQ.
LUKE:
When will the people in the audience have a chance to speak? We're an hour and a
half into this already.
LIZ DICKSON:
I'm Liz Dickson, attorney with Hurley Lynch & Re. The three of us are part of a
team mobilized by Eagle Crest. To keep things in orderly fashion, I am the best
person to address any potential sabotage.
DEWOLF:
I don't care about that. How's that for an answer. What I want to know is how can
I modify instead of clarify this today?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 26 of 41 Pages
Eagle Crest III Final Master Plan Review
DICKSON:
I may be able to help you with that. There is a strand of cases out there regarding a
decision-making body making interpretations. This strand of cases begins with the
Clark case. These cases speak to the issue of how a local decision-making body
should interpret something when making a decision. The standard is very much in
your favor. The standard says, so long as the interpretation that you make is not
indefensible, is yours, and is not reversible. This has been granted by case law and
statute.
DEWOLF:
I'm looking you right in the eye now, and I'm telling you that for me to do what
Eagle Crest wants me to do today, I am modifying this condition. How do you
answer that?
DICKSON:
My response is, I'm looking at condition 417, line by line; what I see is that you
have the power to interpret what you did there any way you want.
DEWOLF:
I'm telling you that for me to do what I'm being asked to do today would be to
basically overturn my decision of April 23. Are you telling me that this is okay for
me to do?
DICKSON:
You have the power, if you choose to use it, to interpret condition # 17. You are
held to what you wrote in your decision. That's my understanding of this series of
cases. A lot of case law out there that talks about how far a decision-making body
can go in deciding what they want to do.
WALKER:
To me, you have an obligation to make a good decision, based on the best
information that you have. Your thoughts and recollections from the past aren't
binding; what is in writing is.
DEWOLF:
It would be a lot easier if it were sixty days from now. This is too soon. We had
testimony that there have been problems for over at least a year. Just 40 days is
tough to get over.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 27 of 41 Pages
Eagle Crest III Final Master Plan Review
DICKSON:
I look at it differently. This system has been in place for 17 years, that's 6,000
days. In those days, there have been only 13 incidents with DEQ.
DEWOLF:
Things break down after time. We have a year of serious problems and 40 days of
okay. Wouldn't you want a little more assurance that it is working okay?
DICKSON:
I would want to know what the problems are and how they were addressed. Let
me speak to what I think were the causes of the problems.
LUKE:
I've watched drainfields fail, and a lot of things can happen. Your ideas are all
theory, because you're not in that ditch. If you want to present what you feel is
vandalism, and crimes against your system, I'll want another hearing to let other
people testify, too. You've made some very good points as to what you have done
to improve the system.
Again, I'm as nervous as Tom is about giving permission without seeing this thing
operate a little bit longer. If there were a way that six months from now we could take
a look and see how it has been working, I would consider it. This is too soon. That's
a lot different. You don't have a timeline or contract with Redmond. If you have a
good year and build 50 houses and don't agree with the City, you'll have to do your
own system, which would take over a year. We've got a lot of unknowns here.
WALKER:
There is a clear timeframe set in the conditions. If this happens, we have to stop,
as we have to perform.
DEWOLF:
So if you have people living in homes, you have to throw them out?
WALKER:
We have a permit from DEQ that says we will perform, and we have bonds in
place to assure this.
DICKSON:
Let's me show you what's happened here.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 28 of 41 Pages
Eagle Crest III Final Master Plan Review
DEWOLF:
What I'd like to do is interrupt. We've been going for a long time and I'd to give
other people an opportunity to talk, and have you respond to that, if there is other
testimony.
DICKSON:
There's one thing I need to show you, and it's very important. For you to proceed
without having this information is to lack full knowledge.
LUKE:
I would like to point out to you that there was an attorney brought in by the
railroad to testify before the legislature, and he didn't understand that when you go
to a work session or the chairperson makes a point, that you're supposed to not
proceed. And he cost the railroad a million dollars that day. Now, the chairman
has asked you to wait. I would hope that you would follow his advice and please
wait.
ALLEN:
I would like the Commissioners to consider one possibility. This is an interesting
notion of giving it a little bit more time. We would be willing to continue the
hearing for sixty days, and in sixty days we'll see if we have an agreement in place
with the City of Redmond. And we'll have sixty days more of the system working.
LUKE:
You can't start construction.
DEWOLF:
That's still a lot faster than the other alternatives that we're looking at here. If this
gets appealed, that's many months of this. I think that's probably a good offer from
my perspective.
ALLEN:
If there's an issue with waiving statutory timelines, we'll take care of that.
DEWOLF:
We'll take a brief recess, and then anyone else who wishes to can testify.
(A five -minutes recess was then taken.)
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 29 of 41 Pages
Eagle Crest III Final Master Plan Review
TERRY BENNETT:
I'm Terry Bennett, a resident of The Ridge at Eagle Crest. I testified at the
previous hearing. Obviously Eagle Crest and the people on their side knew what
they were going to talk about today; I didn't. I just came down to see what was
going on, and I'm sure glad I did.
I understand there is no guarantee to the hookup to the City of Redmond's system.
There's no contract, there's no paperwork, and there is no backhoe ready to dig a
hole. We cannot believe that this system is going to happen. No one knows if it is
going to happen, and Redmond has not said "yes". There's been a lot of talk going
around that they may not. We need to look into this a lot deeper.
Eagle Crest residents must know, and as Commissioner DeWolf commented, if
they are going to try to pump into Phase II, another hearing is needed. Right now
all the residents out there believe there isn't going to be new pumping of sewage
into Phase II. We believe that there will be no more sent into Phase II. We need to
let everybody know if this might change, because you would have a room full here.
You stand up for Eagle Crest and Jeld Wen, but they are showing their true colors
by trying to go around this condition # 17, and get around the rules and laws. They
aren't as good as you think. I agree that we need to watch the new system, as five
weeks is nothing. June is not a peak month at Eagle Crest. We need to watch for
more than five weeks; there are too many unanswered questions regarding the
drainfields.
This system they are trying to use - and have I talked with other sewer contractors -
is a bad system, and it's very inadequate. Solids were found in the drainfields,
even though it was denied here today by a representative of Eagle Crest; the truth
is, solids were found, and we gave you pictures at the last hearing.
LUKE:
I think what was said was, solids did not come to the surface.
BENNETT:
Yes, they did. We gave you pictures to prove it, and there were at least six or
seven other witnesses that day that saw that solids came to the surface. They call it
sludge. We have witnesses from the DEQ and a representative from the State
Board of Real Estate
DEWOLF:
Can you tell me, when you use the word "sludge", what do you mean?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 30 of 41 Pages
Eagle Crest III Final Master Plan Review
BENNETT:
Diluted human feces. Diluted crap. Yes, it did come to the surface out there, and
it was seen by numerous people. We gave you photos.
Where is there room for more drainfields at Eagle Crest if they need to build them,
and when will they notify the residents who live around those potential sites? I
heard some testimony today that there is more land available; I'd like to know
where, and I think a lot of other residents would like to know, too. When are they
going to tell people? How close to residences is it going to get? We have a home
on a drainfield and it was not disclosed to us.
Again, at the other hearing, Eagle Crest's attorney said that at that time, Eagle Crest
was 12 to 18 months out to hook into Redmond. Now we're talking about 16
months at best. My point is that Eagle Crest disburses misinformation.
DEWOLF:
Now, that's not fair. I want to point out why that's not fair. In this agreement, they
are required to be hooked up within 18 months of approval of the conceptual
master plan. It was approved May 23. We may be tossing out numbers, and I'm
just as guilty as anyone else of that, but that is not Eagle Crest misrepresenting
anything here.
BENNETT:
At that hearing, the attorney said they would be hooked up within 12 to 18 months.
That's not going to happen.
DEWOLF:
How do you know that? Do you have evidence that shows that is not going to
happen?
BENNETT:
Because we talked with the department manager of Redmond Public Works right
after that hearing, and she said at best you could build that system in 12 to 18
months. Three months ago she said it was going to be done in that time frame.
They haven't even begun yet. That's why I say that. They are the ones who are
trying to say that it's going to happen right around the corner. It's not right around
the corner as was said. Let's be real about what is going on.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 31 of 41 Pages
Eagle Crest III Final Master Plan Review
BENNETT:
There's no reason to be comfortable with the sewage flows in the existing fields at
this time. I'll say this real quick, since I know you aren't all that interested in it.
There is no proof of vandalism at Eagle Crest; there's no proof, and there have
been no arrests. My name has been mentioned in this situation by a person
representing Eagle Crest who happens to be here today. In a deposition, there has
been a head person at security of Eagle Crest and their head person who runs the
Cline Butte Utility Company who say that there is no legal proof of vandalism or
sabotage. That's just propaganda.
I strongly disagree with DEQ's opinion of Phase III going into Phase II. Eagle
Crest only responded to problems after the Schraders and my wife and I went to
The Bulletin and made it public. They never responded to any problems before
then, and I mentioned this fact at the previous hearing. The system is a health
hazard. This isn't discussed enough.
About them having no lots for sale, due to their problems and lack of interest in
taking care of problems, which have been going on for a year or more, in fact the
whole time we've owned our lot. There have been problems on resort side for at
least 10 years; people who live there know that. Even the person who built our
house smelled odors coming out of the drainfield area.
Due to the fact that Eagle Crest misrepresented some characteristics of that lot
when we purchased it, we weren't aware of what was going on. We smelled these
bizarre odors, and didn't realize they were spills. We were calling Cline Butte
Utility and they would come out and throw some lime and dirt on them, and not
report it to the DEQ. That's why there are only thirteen reports. There should be
about fifty reports. We didn't know what was going on, and it took us almost a
year to put the puzzle together.
DEWOLF:
Have you sued Eagle Crest?
BENNETT:
Yes, sir. My opinion on Eagle Crest III being delayed - too bad. Their problem,
their fault, get a sewer system. Selling lots in Eagle Crest Phase III is their
problem.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 32 of 41 Pages
Eagle Crest III Final Master Plan Review
BENNETT:
This may be irrelevant to you, but Eagle Crest employees have been slandering my
wife and me since the last hearing. We have documentation to prove that. They
have said things about us that aren't true, and these lies have passed through the
local community. My wife is an Eagle Crest employee. This has been very
damaging, and there's no proof. This is just character assassination because we
have spoken out against Eagle Crest.
If this engineering plan for the new system, through W& H Pacific, is so brilliant,
why wasn't it done right the first time? Why should we believe that it will work
this time? If they are so brilliant, they would have had a system that works the first
time.
LUKE:
Please stick to the subject and don't state negatives against individuals. We try to
keep both parties going down the right line.
BENNETT:
There is a lot of propaganda here. There is no guarantee it will work. No one is
willing to step to the plate.
DEWOLF:
Things do break, and it's reasonable to expect that Eagle Crest would make
improvements over time, as technologies improve. To claim that it had to be right
the first time, well, houses built 100 years ago are a bit different that houses built
today, too. I think it's reasonable to allow people to make improvements over time.
BENNETT:
Eagle Crest made improvements only when they had to. My house value has
already been destroyed. I basically have a valueless house. Don't let Eagle Crest
do that to any more people. Get a system that works before they start building and
pumping more sewage. This is a shell game they're playing, and they don't do it
very well. Yes, they've been lucky for the past five weeks, but let's watch this.
What if it fails again in a few weeks? What about us, the residents who already
live there, and have children there? What about us? The heck with them in selling
more lots and tearing up the landscape. Take care of the people who are already
there and don't worry about Phase III sales.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 33 of 41 Pages
Eagle Crest III Final Master Plan Review
BENNETT:
The reason Eagle Crest claimed vandalism and sabotage is that they see people
around these fields. That's because people live there. They claimed to see me
around their fields. One is behind my house, and the other is down the street by a
bike and running trail, and next to a golf course. Hello! I live there, and I'm going
to continue to enjoy my life there no matter how hard they try to ruin it. Yeah,
people are seen by the fields because people live there.
LUKE:
Have you noticed any improvement or any difference since the last time you
testified?
BENNETT:
I haven't seen any spills in the last five weeks. Yes, they monitor the system like
crazy now; I'll grant you that. There are people out there about three times a day.
They didn't have much choice, I don't think, considering they were about ready to
be shut down.
I don't think five weeks on a system is enough, on a system that they say has run great
for 17 years. No, it hasn't. It has smelled on the resort side for many years, and there
are people who live there who will testify to that. It has smelled on our side for over
two years. For this little time period, it's working. Five weeks is nothing.
The other thing I would like to say about their lack of DEQ notifications is that
Eagle Crest does not report their spills; they hide them.
DEWOLF:
Do you have evidence of that?
BENNETT:
Probably not in writing, but I know how many times we noticed smells and called
Cline Butte Utility. They would come out and throw lime and dirt on it. It took us
a while to figure it out.
LUKE:
But you don't know that they didn't file a report with DEQ.
DEWOLF:
It might have been a DEQ problem, where DEQ didn't do anything about it. Do
you have any evidence?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 34 of 41 Pages
Eagle Crest III Final Master Plan Review
BENNETT:
I can't sit here and give you documentation, but I do know that we were calling
their in-house utility company all the time with these problems until we were
finally able to put the big picture together, but it took us a while. We should have
called DEQ ourselves every single time.
LUKE:
I have a question for Tom Hall. From the little that I know as a general contractor,
drainfields are supposed to evaporate and not go down. Is that accurate?
HALL:
The majority of the water does go down. That's what we're looking at when we do
a site evaluation and look at test pits. That's why we test underneath.
LUKE:
The question is, does the system operate differently in the winter than in the
summer?
HALL:
In the wintertime, more of the water would go down. In the summer, because of
plant growth and evaporation, it would bring the water up.
LUKE:
My question is, if there is a problem with the system, would it work better in the
summertime than in the wintertime?
HALL:
I would say so.
RICHARD ALLEN:
We have no further testimony at this time. We would like the Board to allow a
continuation of the hearing for sixty days.
CRAGHEAD:
Do you want to continue for more testimony? Normally we wouldn't send out
notices on a continued hearing, but we probably should in this case.
BLIKSTAD:
Over a hundred notices would need to go out.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 35 of 41 Pages
Eagle Crest III Final Master Plan Review
CRAGHEAD:
If you want more testimony and want to hear from people, and if we're possibly
looking at a different interpretation, it's not necessary but is advisable.
LUKE:
(To the Eagle Crest attorney.) During the break, Legal was looking at how LUBA
might look at condition # 17. Her assessment differed somewhat from yours in that
if they view it as not being clear, they would go back to the record and look at the
minutes.
CRAGHEAD:
I was considering the statutory construction kind of issue. If it's clear on its face,
they don't go looking into it. If there's ambiguity, they may go back and look into
the history. That's when the tapes and minutes will come into interpretation.
ALLEN:
That's correct. The distinction may be, at least on the transcript that I saw, that
Commissioner Luke specifically mentions his understanding. I think
Commissioner Daly mentioned that he didn't say anything expressly on the record
about it. So it's not clear if it is a reflection of the entire Board's understanding of
the condition.
The general standard is, if you're the County decision -makers, the senior hearings
body of the County, which the Board of Commissioners certainly is, your
interpretation of a land use decision is not overturned unless it is clearly wrong.
DEWOLF:
So, more than likely, something like that would be remanded to us for
interpretation.
CRAGHEAD:
If it's ambiguous.
LUKE:
So, you're asking to extend the hearing?
ALLEN:
For sixty days.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 36 of 41 Pages
Eagle Crest III Final Master Plan Review
DEWOLF:
If we want to continue this for sixty days, we can get a date certain in September,
no problem. I think that would give the time to get everything resolved clearly
with the City of Redmond and have more answers.
BLIKSTAD:
We would need the applicant to toll the 160 days for that sixty-day period.
ALLEN:
We're willing to do that.
LUKE:
Before we do this, I think we need to talk about what will happen in sixty days, and
what are we looking for. What kind of standard are you going to set? The only
reason you are doing this is so you can hook up into the sewer system of Phase II.
Who is going to be our judge as to whether the system is functioning properly and
whether it will hold this additional amount?
DEWOLF:
I'm not sure we can answer that today.
LUKE:
Delaying this for sixty days doesn't help any if you don't hook it up to the sewer
system.
DEWOLF:
It does help you if you've got a commitment from both parties in writing that
you're going to be hooking up. You've got sixty more days of a septic system that
they put $165,000 into that's hopefully functioning properly.
FW1 I1 a"0
And sixty more days of design for this new system.
DEWOLF:
I think it gets us clearly further down the road.
LUKE:
Are you comfortable with no clear standard as to what is going to happen in sixty
days?
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 37 of 41 Pages
Eagle Crest III Final Master Plan Review
ALLEN:
Only if the Commissioners are still open to being persuaded. If sixty days is
simply going to buy us the same thing, and if you're absolutely convinced that
there is nothing we can present sixty days from now that could alter the decision
that Commissioners DeWolf and Luke seem to be leaning heavily towards, then I
suppose we would rather be over with it today.
DEWOLF:
Then, let me ask this. Are we still under the same rule that we're not modifying,
only clarifying condition # 17, if we continue this hearing?
BLIKSTAD:
Yes.
DEWOLF:
What if we were to end this hearing and establish a new hearing to consider a
modification of condition # 17; is that an option?
BLIKSTAD:
The applicant would have to apply for this, and they can't apply for another six
months, because we have a final decision.
LUKE:
If a contract in sixty days with the City of Redmond is in your hands, and you have
a start date and an approximate finish date, and you come to us and say, look, the
way things are going, we're only going to do forty houses this year. And DEQ says
the capacity will be there, and that you might only have to hook up so many houses
in Phase III for a two-month period, because the sewer connection is going to be
done, that's the kind of thing I'd be looking for. I'd be looking for written
agreements, start dates, and approximate finish dates.
If you come back and you don't have a contract with the City of Redmond, you're
going to have a problem. The same problem is going to be here. You could be
looking at doing your own system, which is a possibility, too. If it becomes clear
that you cannot come to an agreement with the City of Redmond, then I would
expect that you would have some kind of idea how you are going to solve this
problem.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 38 of 41 Pages
Eagle Crest III Final Master Plan Review
BLIKSTAD:
It's pretty clear that there are two votes today that they don't need, so I can't
imagine sixty days is any big deal.
ALLEN:
Not to prejudge what the Commissioners are going to decide, I appreciate the
suggestion that came that maybe some additional time would help. Certainly, we
think sixty days will be enough time to determine whether there is going to be an
agreement with the City of Redmond, and if there is, to have that agreement. And
certainly we'll have a sense of the functioning of the system through what would be
the entirety of the peak summer months.
LUKE:
You'll have some discussions with ODOT, and will know more about what your
right of way situation is.
DEWOLF:
I think that is a really good point that Dennis made. If you came back and said,
here's what we need with the way that the timing works, and it will involve ten
houses being hooked up to Eagle Crest II's septic system for 90 days or 180 days or
whatever that might be, that kind of detail would be very helpful.
LUKE:
It's a lot easier to accept than a dozen houses in two years. Because if you have
Phase II, you're going to hook those up to it, too.
BLIKSTAD:
We are looking at September 17; that's a Monday, at 3:00 p.m.
LUKE:
What would a mailing cost?
BLIKSTAD:
Maybe $50 or $100.
DEWOLF:
Please renotice the hearing.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 39 of 41 Pages
Eagle Crest III Final Master Plan Review
LUKE:
Be very clear, that what we are looking at is whether houses should hook up to the
septic system. If you want to include information that a contract is in place, I
wouldn't have a problem with that.
CRAGHEAD:
You should just notice the hearing. They can come to the hearing and see the
evidence.
LUKE:
Would this mailing go to residents of all of Eagle Crest?
BLIKSTAD:
That would be a lot more. I was thinking of just the notice that we sent out for
today's hearing.
LUKE:
You didn't send the notice of this to all of Phase II?
BLIKSTAD:
No. We're only required to send to the area encompassed by the 750 -foot
boundary. That didn't take in all of Phase II.
DEWOLF:
They are operating within the standards of law.
LUKE:
I'm sure that if you mail it within that radius, the information will get to the rest of
the residents.
BLIKSTAD:
The reason we don't, Commissioners, is that we have been instructed by legal
counsel that we can't be arbitrary as to where we send mailings.
DEWOLF:
Thanks to everybody. These are difficult issues, and everyone on all sides is trying
to work through this. This hearing is now continued until Monday, September 17,
at 3:00 p.m.
Minutes of Public Hearing Thursday, July 12, 2001
Deschutes County Board of Commissioners Page 40 of 41 Pages
Eagle Crest III Final Master Plan Review
Being no further discussion on this issue brought before the Board at this time,
Chair Tom De Wolf recessed the hearing at 5:10 p.m.
DATED this 12th Day of July 2001 for the Deschutes County Board of
Commissioners.
ATTEST:
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Recording Secretary
Minutes of Public Hearing
Deschutes County Board of Commissioners
Eagle Crest III Final Master Plan Review
--:1" cc-� —
Tom DeWolf, Chair
4.,�ie�61�
*Cnnis R. Luke, ommissioner
AOV�xo' /v'
Mic ael M. Daly, ommissioner
Thursday, July 12, 2001
Page 41 of 41 Pages
Introduction
This is a public hearing on an application for Final Master Plan review for phase 3 of the
Eagle Crest Resort.
The applicant has requested approval of a 480 -acre expansion to the existing
destination resort on land zoned Exclusive Farm Use zone, with a Destination Resort
combining zone.
Burden of proof and Applicable criteria
The. applicant has the burden of proving that they are entitled to the land use approval
sought. The standards applicable to the applications are listed in the overhead that you
see.
Hearinas Procedure
The procedures applicable to this hearing provide that the Board of County
Commissioners will hear testimony, receive evidence and consider the testimony,
evidence and information submitted into the record. The record as developed to this
point is available for public review at this hearing.
Testimony and evidence at this hearing must be directed toward the criteria set forth in
the notice of this hearing and listed on the overhead. Testimony may be directed to any
other criteria in the comprehensive land use plan of the County or land use regulations
which any person believes apply to this decision.
Failure on the part of any person to raise an issue, with sufficient specificity to afford the
Board of County Commissioners and parties to this proceeding an opportunity to
respond to the issue, precludes appeal to the Land Use Board of Appeals on that issue.
Order of Presentation
The hearing will be conducted in the following order. The staff will give a staff report of
the prior proceedings and the issues before the Board. The applicant will then have an
opportunity to make a presentation and offer testimony and evidence. Opponents will
then be given a chance to make a presentation. After both proponents and opponents
have made a presentation, the proponents will be allowed to make a rebuttal
presentation. At the Board's discretion, opponents may be recognized for a rebuttal
presentation. At the conclusion of this hearing, the staff will be afforded an opportunity
to make any closing comments. The Board may limit the time period for presentations.
Questions to and from the chair may be entertained at any time at the Board's discretion.
Cross-examination of witnesses will not be allowed. However, if any person wishes a
question be asked of any person during that person's presentation, please direct such
question to the Chair after being recognized. The Chair is free to decide whether or not
to ask such questions of the witnesses.
EXHIBIT A
Page 1 of 2
Pre-hearinq Contacts
I will now direct a question to the other members of the Board of County Commissioners.
If any member of the Board, including myself, has had any pre -hearing contacts, now is
the time to state the substances of those pre -hearing contacts so that all persons
present at this hearing can be fully advised of the nature and context of those contacts
and with whom contact was made. Are there any contacts that need to be disclosed?
At this time, do any members of the Board need to set forth the substance of any ex
parte observations or facts of which this body should take notice concerning this appeal?
Any person in the audience has the right during the hearings process to rebut the
substance of any communication or observation that has been placed in the record.
Challenges for Bias Preiudgment or Personal Interest
Any party prior to the commencement of the hearing may challenge the qualifications of
the Board of County Commissioners or any member thereof of bias, prejudgment or
personal interest. This challenge must be documented with specific reasons supported
by facts.
I will accept challenges now.
Should any Board member be challenged, the member may disqualify himself or herself,
withdraw from the hearing or make a statement on the record of their capacity to hear
the appeal.
Hearing no challenges, I shall proceed.
EXHIBIT A
Page 2 of 2
Before the Board today is an application for Final Master Plan approval for Phase 3 of
Eagle Crest Resort, to be located on a 480 -acre parcel of land identified on County
Assessor's map 15-12 as tax lot 4800.
As the Board is aware the applicant has previously applied for and received approval of
a Conceptual Master Plan (file no. CU -99-85) for this phase 3 expansion. The Board's
written decision on the CMP was mailed out on May 24, 2001, and it contained 20
conditions of approval.
Staff has reviewed the applicant's submitted materials for Final Master Plan review and
believes that there is only one outstanding issue with respect to the application. That
issue revolves around the sewage disposal for phase 3 and how that disposal will be
handled.
The condition of approval related to sewage disposal is listed under no. 17. The hearing
today will require the Board to interpret that condition. The condition may not be
modified under this review, it many only be clarified based on the Board's understanding
of what the condition means.
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sewer system is comp e e e iss
ex ension o e sewe tl.
In order to allow a platting of lots without all the required utitlies in place, a developer is
required to sign and record an Improvement Agreement and provide financial assurance
acceptable to the County for the improvements. This is allowed under section 17.24.120
of Title 17 of the County Code, a copy of which staff provided to the Board in our memo
of July 3rd. This section provides a mechanism for a developer to record a plat without
the necessary improvements in place at the time of platting. Once, platted, the lots
could be sold and building permits issued. The Improvement Agreement is only valid for
one year. If the sewer line was not available at the end of that period, the County would
use the security to construct the line.
Another potential complication would be a dwelling under construction that a buyer
decided to move into ahead of any final inspection. According to the Building Division,
final inspection of plumbing permits could not take place until the house was connected
to the sewer line. The house could not function properly until such connection was
made because there would be no place for water to go. Thus, from the standpoint of the
applicant, the timing of the extension of the sewer line is critical.
Staff believes that the sewer connection is the only significant issue and recommends
approval subject to the clarification mentioned.
Questions.
EXHIBIT B
Page 1 of 1
Eagle Crest II - status - July 12, 2001
Members of the Deschutes County Commission, I'm Tom Hall. I represent the Oregon
Department of Environmental Quality. My purpose here today is to briefly describe the
status of the Eagle Crest II sewage disposal facility and to answer any questions you
may have. My supervisor, Mr. Dick Nichols, would have liked to attend also and sends
his regrets.
On March 24th , April 5th, and May 10th, of this year, there was a discharge of sewage
to the ground surface in the Eagle Crest II drainfield area. A Notice of Noncompliance
was issued to Cline Butte Utility Company for each of these incidents.
An action plan to eliminate the surfacing sewage problems at the Eagle Crest II
drainfields was developed by the permittee and submitted to the Department on April
26, 2001. We approved this plan on May 9, 2001.
The following major actions have been taken to improve the Eagle Crest II sewage
disposal system:
• 5 new drainfield cells have been constructed and. are in operation.
• The sewage effluent pump control system has been upgraded with a timer function
to assure a uniform dose to all cells.
• The Cline Butte Utility Company staff has increased the sewage disposal system
inspection frequency to at least daily.
At the time of our last inspection on May 29, 2001, the day after the Memorial Day
holiday all the Eagle Crest II drainfields were functioning satisfactorily.
The Department is in the process of renewing the wastewater discharge permit for
Eagle Crest If. The new permit will include additional conditions reflecting actions set
forth -in the action plan referred to above. The proposed permit will also contain a
condition requiring connection to the Redmond sewer or the installation of a separate
sewage treatment facility with effluent irrigation once the flows reach 68,000 gallons per
day.
In the early 90's two hydrogeologic studies were done for the proposed Eagle Crest II
development. A monitoring well was drilled for the second study in 1994 to allow a more
detailed examination of the geology and groundwater characteristics in the area. The
uppermost aquifer is about 200 feet below ground surface and it's apparently a confined
aquifer. While it was concluded in these studies that the groundwater should have
adequate natural protection, they did not allow for the accurate prediction of the fate of
contaminants such as nitrate in the ground below the disposal areas. Therefore, the
EXHIBIT C
Page 1 of 2
_ _9
Eagle Crest II - status - July 12, 2001
Page 2
permittee was required to monitor the groundwater in the unsaturated zone below the
drainfields and in the down gradient monitoring well.
Background samples from the unsaturated zone, prior to drainfield installation, had a
nitrate nitrogen concentration of about 8 milligrams per liter. Since the drainfield began
operation the nitrate -nitrogen concentration in samples from the unsaturated zone have
averaged about 13 milligrams per liter indicating that a substantial level of treatment is
occurring in the soil.
In the down gradient monitoring well the nitrate -nitrogen level in the upper aquifer is about
2 milligrams per liter. The drinking water standard is 10 milligrams per liter and the DEQ
planning limit is 5 milligrams per liter.
EXHIBIT C
Page 2 of 2