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HomeMy WebLinkAbout2010-03-01 Business Meeting MinutesDeschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, MARCH 1, 2010 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Dennis R. Luke, Alan Unger and Tammy Baney. Also present were Dave Kanner, County Administrator; Anthony Raguine, George Read, Nick Lelack, Tom Anderson and Peter Gutowsky, Community Development; Laurie Craghead, County Counsel; and about twenty other citizens, including representatives of The Bulletin and KOHD TV. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. Harold B. Evans said that he was told that work needed on a road located northeast of Bend might be authorized by the Board. Commissioner Luke stated that if this is done for this road, it would be a problem turning down people living on the other hundreds of miles of unmaintained roads. Mr. Evans stated that the developer did not pay taxes on the property so it was foreclosed on by the County. They have been unable to form a road district to address the problem. Laurie Craghead stated that foreclosures are generally handled by County Counsel or the Tax Office. She will do some research on how the County ended up owning the road. Dave Kanner stated that there are State laws on how funding can be spent, especially ad valorem or gas tax money. No other testimony was offered. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 1 of 10 Pages 2. Before the Board was a Public Hearing and Consideration of First Reading of Ordinance No. 2010-011, Amending Code regarding Siting of Wireless Telecommunications Facilities. Chair Luke read the opening statement. (A copy is attached for reference.) In regard to prejudgment or personal interest, the Commissioners indicated that they had only attended on the record, public meetings to discuss this issue. There were no challenges from the audience. Anthony Raguine gave his staff report. The text amendment was initiated by staff to better meet the needs of the wireless telecommunications ordinance. This would help streamline the application process. (A copy is attached for reference.) A building permit is still required for equipment cabinets. Mr. Raguine said that the Ordinance today has three categories. Tier 3 structures could have an adverse impact, so require a conditional use permit. Tier 1 are for co-location on structures that are already there. Tier 2 is specific to certain zones where there is already development that would not be impacted by this structure. Commissioner Baney asked if there is a way to make sure that a structure is appropriate in a given area. Mr. Raguine stated that Tier 3 facilities have to be heard by a Hearings Officer due to the need for a conditional use permit. Commissioner Unger asked about aviation lighting on the taller poles. Mr. Raguine said the County has no authority over what the FAA requires. Even if Code did not require a look at FAA lighting, it could still be required. Commissioner Unger would like to see this avoided if possible. Mr. Raguine stated that the lighting is based on flight patterns and topography, not necessarily on the height of the poles. If there was a lower maximum height allowed, this could very well result in more poles to provide the same service. Commissioner Unger does not like the flashing aviation lights. He asked if a different type of light, or the brightness of the light, can be adjusted. Mr. Raguine replied that this is entirely up to the FAA. William Kuhn testified that he finds remarks about concerns for the neighbors interesting. In 1992 there was an Ordinance regarding building setbacks within deer ranges. A neighbor of his submitted an application just before the Ordinance went into effect, and indicated they would build within the required setback. Less than a week ago, the Commission overturned that requirement. He feels the Commissioners are being hypocritical. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 2 of 10 Pages There was no other testimony offered. BANEY: Move first reading of Ordinance No. 2010-011 as amended per staff’s memo. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Chair Luke then conducted the first reading of the Ordinance. The second reading and consideration of adoption will take place at the Monday, March 15, 2010 business meeting. 3. Before the Board was a Public Hearing (continued from January 20) and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2010-002, regarding Destination Resort Map Amendment Procedures. Chair Luke opened the hearing at this time. Peter Gutowsky entered the case file into the record. Since the January 20 public hearing, the Board has received input provided by the Planning Commission and various citizens, which he then reviewed. He said that several Planning Commissioners are at this morning’s meeting but not as members of the Commission, but as private citizens. Mr. Gutowsky referred to oversized maps showing the current and potentially future eligible properties. The intent is to allow privately owned land that is ineligible simply because of irrigation criteria to become eligible. Todd Turner was absent from the last Planning Commission meeting, and Commissioner Cyrus recused himself. The votes were unanimous. Other motions were supported for undeveloped, unimproved subdivisions that were platted before land use criteria was adopted. Cluster developments that have at least 30% of their area as open space may be available. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 3 of 10 Pages Nick Lelack said there are a lot of issues on the table at the State level, including the 160-acre requirement. The County can be more restrictive, but not less. Mr. Lelack said that there are properties that are significantly smaller, and just because they are on the map does not mean they can have a resort sited on them. Commissioner Unger stated that perhaps property owners should let the County know whether they want to stay on, and if they don’t they’d be dropped. Mr. Gutowsky said that one that is currently mapped. Commissioner Unger would like to avoid a ‘checkerboard’ type of effect. Mr. Gutowsky stated that the properties would have to be contiguous. Citizen William Kuhn said that he has great respect for those who own their property since before land use laws came into effect, and does not want to take away their rights. Property rights is a popular issue these days, but some feel they should be able to make as much money as they can when selling their property. They feel that any restriction is unconstitutional. Those who want land use laws and the enforcement of those laws have rights also. It does not make sense to take away some from one for the other. There are far too many destination resorts. He believes that the character of Deschutes County is diminished by more resorts. He asked that the Board consider carefully what they are doing. He is for many of the things that support destination resort, but the rights of others need to be upheld. Paul Dewey, an attorney representing Central Oregon LandWatch, said that the concept of multiple ownerships is not appropriate and may not be consistent with State law. A primary concern is that there be a restriction if there is no more than 40 acres of irrigated land per ownership, but with an extension to others this could potentially end up with hundreds of acres. He could see ‘pods’ of land connected by a line, with strange configurations of multiple ownerships. Viable irrigation farmland should be protected. It would be difficult to map all of the possibilities. The Planning Commission has recommended dropping all protection. Mr. Dewey said that although the farm and forest land is not as good as in some areas, historically they have been adequate, and what the future might bring in this regard is unknown. It could be that decentralized farming becomes more efficient, by producing things locally. It would be good to preserve as much farm and forest land as possible. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 4 of 10 Pages Partitioning in property, per Measure 49 claims, means that this applies only to residential properties. Destination resorts do not apply even though there is a residential component. Ultimately there could not be this residential development without the destination resort. This should not result in a Measure 49 claim. Commissioner Luke is concerned that people had their rights to use their land impacted over the years by land use laws. He is concerned about taking away a property right without the owner being informed. Mr. Dewey stated that if they are grandfathered in, there seems to be a presumption that they will be able to build if they are on the map. As part of the mapping process, the Board should require Goal 5 and other resource updates outside of periodic review. Originally destination resorts were an exception, and the Planning Commission is asking to expand this exception. These all have impacts on livability and natural resources, and there is no requirement to review the comprehensive or cumulative effects. He would like to respond what is proposed after today. Commissioner Baney asked what is ‘adequate’ or ‘good enough’. Mr. Dewey stated that there needs to be economies of scale. Things change, but if something is capable of being irrigated should be protected. Commissioner Baney asked if someone has to prove what the capacity is. Commissioner Unger said that new law changes reflect transportation requirements. He asked when this is addressed. Mr. Dewey said that this is reviewed when there is a potential impact. It is provided in the revised Ordinance. Nick Lelack said that transportation needs has to be addressed at the time of rezoning or at remapping. There are extensive requirements in Code for destination resorts. Matt Cyrus said that he appreciates taking the erroneous map out of the record. It shows a lot of land that is zoned EFU but is owned by the public. Regardless of the map, it is unlikely there will be much land available for destination resorts. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 5 of 10 Pages Area land was homesteaded at one point, and land where the irrigation districts are were dedicated to the State. The original developers in the Central Oregon area were the irrigation companies. Most of the canals were never built. So there is a huge diversity in priority dates for water rights. Users had to put the water to beneficial use. There is no differentiation regarding the quality of the water rights. Commissioner Baney asked if he feels this is happening today with this change. Mr. Dewey noted that not all irrigated land is good for farming. The 1992 Ordinance creating the mapping and specified the contiguous lands were not excluded from it. The argument also is that the new mitigation rules mean less impact on irrigated land or irrigation . Modern irrigation districts are modern and well run. For instance, if a resort buys irrigation rights, that means some land will be dried up as a result. This doubles the impact on farmland because that acreage will be dried up. He encouraged the Board adopt the recommendations of the Planning Commission. Christen Brown is the Chair of the Deschutes County Planning Commission, but spoke as a citizen. He said that he raised an issue about the 40/60 rule of irrigated land. There are distinct issues. In 1992 it was not clarified. He thinks this is doing it the hard way. He wants to talk about good farm land, not just irrigated acreage. The science has changed significantly. If someone does qualify in other ways, the alternative is to brown up land. It is partially in the Code now. The second piece is subdivisions. The additional item added to County guidelines was to remove subdivisions as an acceptable place for resorts. The Planning Commission has given something different. They removed subdivisions as a restriction, as it is too broad and too general, if there is just a paper subdivision out there. Chair Luke asked if they mean one ownership does not mean just one person. Commissioner Baney believes that his thoughts are different than that of the Planning Commission. She sees it being to allow subdivisions. Mr. Brown said that the criteria is extensive and most that is on the map will not truly be eligible for destination resorts. It has the possibility of at least not being disqualified, where there are a lot of safeguards in place. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 6 of 10 Pages Commissioner Baney stated that this may cause the general public to feel that the lands are eligible when they truly are not. Mr. Brown said that the State has a lot of criteria and is adding more all the time, so augmenting those rules would make it that much more difficult to put in a resort. There is a lot of discussion about undeveloped areas, specifically paper subdivisions that are not built. He is concerned about stepping on the toes of people who have invested in the past under acceptable criteria at the time. In regard to open space, Mr. Brown said that destination resorts and cluster developments look similar, with the questions of overnight housing and other issues remaining. The exposure is limited to about three. They should be allowed to try to meet the test. The grandfather clause is another issue. It is not as easy as he originally thought. If someone does not know – for instance, the property could be in the form of an estate – there is potential exposure. Chair Luke said the map would not be reduced much. The mailing that goes out with the tax bill goes to every property owner. He does not know what else can be done in this regard. Mr. Brown wants to protect property owners’ rights so this does not end up being an improper taking. Commissioner Baney said that a cluster development would be easier than a destination resort. Mr. Brown stated that this would have to be a preexisting cluster development. Perhaps a sunset date could be added. Chair Luke said that a cluster development and a destination resort may be perceived by neighbors as being much the same. Mr. Brown stated that there would have to be a full process in either case. Just because the land is eligible does not mean it will be happen. He does not know the particular situations of the three that can fit this, but he does not want to see their rights taken away without due process. Commissioner Unger asked about paper subdivisions – are they platted? Mr. Gutowsky said they are two-dimensional plats, with no infrastructure. These happened before land use required improvements being in place. Theoretically, someone could have a legal subdivision with no improvements in place. Commissioner Unger asked if there is a time limit in this regard. Mr. Gutowsky replied that now there are time limits for certain things, but assumes that these requirements did not exist at the time these subdivisions were approved and recorded. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 7 of 10 Pages Ed Criss, a member of the Planning Commission, spoke as a citizen. The people of south County are concerned about destination resorts, as there are a lot of platted subdivisions in that area. He supported the smaller acreage destination resorts which should be considered for economic development. These types of developments are not gated nor do they have golf courses. It has been said that it is not economically viable to do these. He thinks they are viable and should be an option. There are not many places where recreationists can stay and enjoy the area. Even if it is dedicated just to the upper Deschutes basin, it should be considered. People are concerned about destination resorts and developments that occur around them. Most do not oppose smaller resorts. The transferable development credit and pollution reduction credit plan has not worked as well as planned. Some lost the use of their land and other land was made available. Land swapping with the Forest Service is possible to protect wetlands. He feels that the remapping, as pointed out by Commissioner Baney, is more complicated than expected. He would like to see them look at lands that really belong on the map. Those that can be put together in partnerships can be added later. They might want to wait until the State addresses this in 2011. Chair Luke said that Commissioner Unger has raised the smaller destination resort issue more than once. It would take a change in State law to allow these. This has been considered for years, and staff has been working on this for a long time. Mr. Lelack said that a key issue is that large destination resorts are allowed on research land, when for whatever reason small ones are not. That limits what can be done. Liz Fancher, representing Belveron Partners Real Estate LLC, spoke regarding multiple ownerships and the 160 acres. The Planning Commission reviewed these, and the State law indicates a 160-acre site, not just a single parcel. There is no requirement that they be under one ownership. The 160 acres is not a mapping requirement at all, but an application requirement. There is a time period, and they would not be able to do that if the property was not eligible. Her client owns a property that qualifies and the neighbor wants to include land as well. The current plan is to develop together. It was considered before by the Board, but was dropped. The law indicates just a site requirement for the 160 acres. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 8 of 10 Pages There are concerns about Measure 49, but this should not drive a decision on this. It would not help anyone who wants to make a claim, especially if the land was not eligible in the first place. In regard to cluster developments, it should include planned developments as well if the properties are large enough. They have to be at least 40 acres. Both require smaller lots and open space. In regard to the Planning Commission recommendation about leaving everyone on unless they opt out, she would recommend they go ahead and fix the area in south County due to wildlife special area rules already in place. It makes sense to let everyone know what can never be developed. Commissioner Luke suggested that the record be left open, and the other Commissioners agreed. This will allow them to receive more information on some of the things that were just brought up. Merry Ann Moore, representing the Sierra Club, stated that the future, in five or ten years, could be quite different. A property owner could assume that land is destination resort eligible. A simple map is needed to show where it is possible and where it is not. If this is opened up for cluster developments, there will be others lining up for other ways to have a resort. The public hearing for oral testimony was continued until 10:00 a.m. on Monday, April 5, 2010. The written record continues to remain open as well. A work session may be held with staff in the meantime. __________________________ Chair Luke said that a letter to the individual Planning Commissioners has been written regarding the timeframe for drafting the Comprehensive Plan update. Mr. Lelack read the letter into the record at this time. (A copy is attached for reference.) Being no further items addressed, the meeting adjourned at 11:55 a.m. Minutes of Board of Commissioners’ Business Meeting Monday, March 1, 2010 Page 9 of 10 Pages