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HomeMy WebLinkAbout2010-04-05 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, APRIL 5, 2010 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Alan Unger and Tammy Baney; Commissioner Dennis R. Luke was out of the office. Also present were Dave Kanner, County Administrator; Laurie Craghead, County Counsel; Tom Anderson, Nick Lelack, George Read, Will Groves and Peter Gutowsky, Community Development; and approximately twenty other citizens. Vice Chair Unger opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was a Public Hearing on Ordinances No. 2010-015 and 2010-016, regarding Goal Exceptions to Add Wireless Telecommunications Facilities to the List of Uses Permitted in the Oregon Water Wonderland Sewer District Zone. Will Groves explained that this is a de novo hearing, and Vice Chair Unger then read the opening statement. In regard to possible conflicts of interest or personal interest, the Commissioners stated that all that has occurred is a public work session on this issue. Mr. Groves gave a brief overview of the purpose of the hearing and the proposed Ordinances. There has been no public input against this Ordinance. This use would only be put on the list of possible uses. Under the proposal, three types of cellular towers would be allowed: tier 1, tier 2 and tier 3. A tier 3 facility could have a tower as high as 150 and allow for lighting. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 1 of 14 Pages General conditional use standards would have to be met; in this case, those related to adjacent residential uses. The previous forest zone and RR-10 zone and limited use combining zone have the same approval process as the current zoning. Miles Conway, for AT&T Mobility, said that members of the Sewer District are in attendance. They are asking for an amendment to the comprehensive plan and zoning. The current zoning was created specifically for this property and for the sewage treatment system. Approval of this change would allow them to go forward with an application and further proceedings. These facilities would have been allowed in the previous zone but the language was not included when the change was made to add the current zoning. He said that the site is 480 acres, screened from residences, and this use would not impact the sewage treatment facility or other uses. It will provide an additional source of revenue to the District. An amendment to the conservation easement would also be needed. The tower would be near the existing facility and should not diminish the natural values of the property. Commissioner Baney noted that that approving this Ordinance would allow the applicant to go forward with an application. Mr. Conway said the conservation easement change is needed before other issues can be pursued. Citizen Nunzie Gould voiced concerns about piecemeal applications, which does not look at the overall cellular tower plan. There are a lot of opportunities for co-location throughout the County. She is not seeing this concept used and wants the Board to think about what the conservation easements and additional cellular towers mean to the community. Eagle Crest offered a golf membership to two residents who appealed a Central Electric Cooperative power line. Therefore, the applicant acknowledged a loss of value when these things occur. Regarding Cline Butte, not all property owners who might be impacted were notified. When the golf poles were erected in north Bend, they negatively impacted local property values. She would like to see the County make a comprehensive review of what is important to the community. She asked for a straw poll as to why people moved to this area. People move here for natural amenities, and cellular towers are impacting this in an adverse manner, and she feels there is no need for additional poles. The landscape has to be protected, not just for the local people but also for those living miles away. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 2 of 14 Pages Commissioner Baney stated that it is her understanding that they cannot proceed unless they can show that other means, such as co-location, will not work. Mr. Groves said that even 9-1-1 acknowledges a “dark spot” in this particular area that lacks signal strength. In terms of identification of alternate sites, that will be part of the application process. Commissioner Baney asked if the County can deny cellular towers. Dave Kanner said the law states that there cannot be a barrier to a provider, and if zoning rules allow for “dark” areas, this is against the law. The law prohibits requiring co-location. The County asks for an explanation of why they can’t do co-location, but cannot require it. Commissioner Baney said that she is sensitive to the comments made, but knew there was more to it. Commissioner Unger closed the hearing. He observed that the ability to apply for a tower was previously allowed, but is not at this time. He supports moving forward. Commissioner Baney stated that she feels this is a logical location for the facilities. Laurie Craghead said that there are a few modifications needed, as not all the documents were available for Board review in their final version. Mr. Groves said that findings and decisions need to be drafted; and the conservation easement will be drafted with acceptable language. The applicant asked that the Ordinances be adopted by emergency, but the findings and decision need to be completed first. The Board asked staff to move forward with draft findings. 3. Before the Board was Public Hearing on Ordinance No. 2010-008, regarding the Adoption of an Urban Growth Boundary and Urbanization Policies for the City of La Pine. Commissioner Baney read the opening statement at this time. The Commissioners had no bias, prejudgment or personal interest to disclose. Peter Gutowsky gave an overview of the item, which is the first comprehensive plan for the City, an important document guiding its development in the future. The La Pine City Council and La Pine Planning Commission recommend adoption, and the County Planning Commission also recommends that the Board adopt this Ordinance. Staff feels this proposal is defensible at the State level. The process has been very transparent and the community appears to be behind it as a sound document. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 3 of 14 Pages Commissioner Unger asked about noting and accepting Redmond’s comprehensive plan in the language, but no others. Mr. Gutowsky said the County gives deference to other planning documents; however, there is litigation surrounding the Bend document so it has not yet been codified. Commissioner Unger asked about a transportation system plan map. Mr. Gutowsky said this does not change the County’s plan, as this system would be within the City. Debra McMahon and James Lewis, consultants for the City of La Pine, said that they are using the County’s transportation plan until the City can adopt its own. The first step is studying the corridors and other plans, which will be the base for a future TSP. Mr. Lewis added that the TSP is not an element of the comprehensive plan, but it is part of a continual transformation for the City. This is an ongoing process. Commissioner Unger stated that there is a committee involved in this. Ms. McMahon said that the citizens were to be involved in the entire process. The local Planning Commission has been doing a good job, considering it is a new process, and has engaged the community at a high level. She added that the County Planning Commission and County staff have done a great job of seeing this process through. Mr. Gutowsky explained that the emergency clause is requested because this was an exhaustive process and they would like to see it finalized. Ms. McMahon added that the water and sewer districts are anxious to have this adopted so they can apply for grants, and there are timelines for grants from DLCD. Commissioner Unger is impressed with what has been done, and encouraged this to move forward. BANEY: Move first and second readings by title only of the Ordinance. UNGER: Second. VOTE: BANEY: Yes. UNGER: Vice Chair votes yes. Commissioner Unger conducted the first and second readings at this time. BANEY: Move adoption of Ordinance No. 2010-008. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 4 of 14 Pages VOTE: BANEY: Yes. UNGER: Chair votes yes. 4. Before the Board was a Public Hearing, and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2010- 002, regarding Destination Resort Remapping Amendment Procedures. This hearing was continued from March 1, 2010. Mr. Gutowsky entered the entire file into the record. There has been considerable citizen input, which has been made available to the Board. Also produced is a matrix showing mapping criteria. Both oral and written testimony are allowed at this time. Commissioner Unger said he would like to hear oral testimony, and then close further oral testimony. Commissioner Baney would like to wait on this decision until hearing from citizens today. Commissioner Unger stated the Planning Commission had asked that this process be reconsidered. The Planning Commission was requested by the Board to meet again on this issue and make recommendations. The hearing was continued to allow the Planning Commission time to revisit the recommendation, since not all Planning Commission members were present at the meetings at which this was addressed. Since then they have met twice on this issue. They made changes to the first recommendations, which are in the record. Before changes can be made to the existing map, the eligibility criteria has to be determined, and the procedures for submitting an application must be included. Dave Kanner said that Neil Bryant’s letter asks about special districts. He asked if special districts were to be allowed but public lands not to be include. Mr. Gutowsky said the issue of irrigation districts never came up. Commissioner Unger opened the meeting for public testimony at this time. Barbara McAusland of Bend asked if testimony should be on the new Planning Commission recommendations or an overview of the issue. She has previously submitted testimony, both oral and written. Her major objections relate to water use. The Planning Commission has added in all lands that are subject to water mitigation in the future. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 5 of 14 Pages The other objection is that these destinations are de facto towns because developers abused the purpose of the permit process. They give assurances they will follow the rules, but fail to do so. It is a privilege to make a resort, and it is not the role of Deschutes County to carry the burden for this kind of development. There are 23 now and 11 more to come. Paul Dewey for Central Oregon Landwatch asked if the County has reviewed his March letter. Commissioner Baney said she did receive it. Mr. Dewey said that they oppose the changes in Code allowing for contiguous ownerships to combine. There is some controversy as to whether State law would allow this. Regardless, Deschutes County has the ability and authority to be more restrictive than State law. This change could cause gerrymandered resorts. There is not an adequate record of the impact this change might have to the Code. From the beginning, it was thought the County was going to cut back on the amount of acreage allowed, but expansion has occurred instead. If Measure 49 claims are making the County overly cautious, the map will be massive. This is coming when the public and DLCD realize there are a lot of costs involved in these kinds of resorts. Whether they working, and if should they change in light of the current economy, and other factors should be analyzed. Mr. Dewey said his group is also against any cluster subdivisions being allowed in this mapping. Kathryn Lindbloom, a resident for three years, lives near the Bend city line. In other places all of the farmland went into subdivisions. She would like to have a say on how things change here. Subdivisions are necessary, as people have to live somewhere. She lived in Chicago, then in the Bay Area. The economy changed and so do a lot of things. She feels that you can’t stop progress, but you can have a say in how it happens. She owns property in Aspen Lakes, and is impressed with the local destination resorts. People cannot even see the developments from the road. She works in Sisters and knows that people come from all over the world to visit. The City of Sisters relies on these visitors to live. She is not for all destination resorts, but is not against them altogether. Recreational pursuits change. Life changes. She has visited Brasada Ranch and it seems very busy in the summer. She hopes the Board will consider keeping all of the options open. The resorts are a source of income and help to keep businesses, especially small businesses, going. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 6 of 14 Pages Charlie Ringo said he is stunned by the comments that change has to happen. The quality of life needs to be considered. Subdivisions are not the answer. He urged the Board to oppose the Planning Commission’s proposal. Places like Sunriver and Black Butte Ranch are true destination resorts. On the flip side, developments that are masked as destination resorts but are just subdivisions are the kind of thing that should not be allowed. Those do threaten the quality of life. He is grateful for the land use system the State has in place, preserving farmland and open spaces. All you have to do it go to other places to see how the lack of land use planning has affected those areas. Decisions need to be made in the spirit of land use laws. A major justification for the resorts seems to be jobs. The thing the County needs is a stable economy, and this cannot be found with destination resorts. If there are no jobs, no one will be buying property. Industry that lasts year in and year out is what is needed; something sustainable. He asked that the resort mapping not be expanded. Duncan Brown of Bend said he previously submitted written testimony. He would like to discuss the findings now before the Board. These findings are meant to provide the legal basis for the Board’s actions. There is no good definition of a destination resort and no way to know what is being mapped. There is no clear picture for the public as to what is occurring. He suggested they develop a definition, at least the State’s definition, and put it into Code. The State’s definition does refer to recreation, but there is no support in the findings for recreation. Goal 8 lists beneficial impacts but does not explain what those benefits are and how they are supported by the proposed mapping. Regarding grandfathering in properties, if a document is updated, it needs to show it is in conformance with State and other regulations. A main requirement of the document is to conform to State regulations. There are still about as many unbuilt or undeveloped lots now within 20 miles of Bend as they have built in the past thirty years of destination resorts, so there is no need for additional buildable land at this time. A clear vision of what Deschutes County wants to see in the future is important. Merry Ann Moore testified for the 900 local members of the Sierra Club. (She distributed a document at this time.) She pointed out the money that has been spent over the past few years. She said that ‘paper’ subdivisions should not be included, nor should cluster developments even if they dedicate 50% open space. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 7 of 14 Pages Grandfathering should not be allowed, nor any new lands that might be under multiple ownerships. She feels that resorts have damaged natural resources, and the new mapping process has not incorporated new research on current habitat and wildlife needs. More protection is needed, not less. She would like to see the resort map repealed entirely, and the wildlife maps should be revised to include current information. Regarding item #3 of the matrix, it should be noted that this is not already a part of statute. Jim Guild stated that attending meetings seem to be an "us versus them" type of environment, and does not feel that the citizens of the County are as well represented as the developers are. It is a slippery slope. The Bulletin published a reference to the public trust. The government is responsible for the health, safety and welfare of constituents. He asked about the financial liability of the failed resorts. Capital reserves are drying up for some of them, like Brasada Ranch. Thornburg, Pronghorn and Tetherow are struggling. He asked if the people of the County may end up being responsible for these failures. Regarding remapping, Mr. Guild feels it is inappropriate that the Cyrus family has a representative on the Planning Commission, since they have a definite personal interest. Mr. Cyrus is not the only Planning Commissioner with an agenda. Mr. Guild feels that the Cyrus development expansion has been planned for a long time. Planning Commissioner Brown was referred to in the article only by his last name. He has tried to change requirements for roadside farm stands so he can establish one at his own property. This is not an individual case. The Planning Commission needs to consider why they are a part of this group in the first place. It does matter if they are unpaid volunteers. It is nothing but trouble to allow someone like this to go forward, as others will want to do the same. He asked Commissioner Unger about destination resort reform, as he heard that Commissioner Unger is now supporting destination resorts in Salem, and thinks this is remiss and a conflict of interest. The people who come to the meetings and oppose resorts are not anti-growth NIMBY’s or have a hidden agenda. They are committed community activists and care about the County. They’d like to have the respect of the Board and be represented. Commissioner Unger said that he did give testimony in Salem, which had been approved by the Board. The gist was that the criteria needs to be reevaluated to keep what is good and get rid of what is bad. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 8 of 14 Pages Mr. Guild stated that this will not happen by expanding the amount of property that is mapped. These are not viable enterprises and should be excluded. Nunzie Gould said that the statistics created by the County do not really add up. There are some parcels as small as three acres included on the map right now. She asked if the Board knows the impact of this type of thing on the overall plan. Lands that cannot meet criteria should not be included, so this is flawed. They are trying to get somewhere without objections and appeals. Grandfathering is inappropriate. What prompted the change is a change in State law. A few additional things were suggested by the Planning Commission. She suggested that the matrix be changed to include State requirements only. There is no need to add in subdivisions, public lands, and some other properties. She sees Deschutes River Ranch as a viable resort. It was platted for 52 homesites. Parts of this area includes leased lands, which should not be allowed in the subdivision. A developer of the subdivision has not filed homeowner’s association dues, resulting in a lien. She has been getting notices from the homeowners’ association saying that the water going to be turned off in that development. In the maps that the County creates, remaining eligible lands should not include Deschutes River Ranch. This is just one example of what has not been considered. A construction lien to Hickman Williams for Thornburgh is on file. They are not paying their bills. This is not unusual for these resorts. There are notices of federal tax liens listed as well. The bigger picture is the economies of real estate and second homes, which has been altered. This process is not moving forward. Adding any more land to resort mapping further threatens the existing resorts. Look carefully at the services, what is happening within resorts and how things are being run. Commissioner Baney said that the Board has not stated its particular position. They are aware of foreclosures and the economy. The Commissioners have not taken a particular position, and continue to take public testimony and review the recommendations of the Planning Commission. Ms. Gould said she is concerned about who is footing the bills for the problems created by destination resorts. She is not seeing any recommendations that the public has made being considered. The document she sees appears to be in support of the changes. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 9 of 14 Pages Commissioner Baney stated that they have to start somewhere, and will make a decision at some point based on testimony and other factors. Ms. Gould asked for the time for testimony be left open, even though the discussion has been very drawn out. Liz Fancher, an attorney representing Belveron, said that the 160 acres is not a State law requirement at all. The suggestion is that the County make expectations realistic. The change matches State law. The only question is whether lots can be combined; but there is no law addressing this issue. If this is added, it will not violate a State law. There is no legal ramification for doing this. Additionally, this process is just taking things off the map and reducing the eligibility. Most of the changes are more restrictive than current Code. The Planning Commission has asked that some others be added back in, but previously there was more taken off. For the most part, most that is taken off won’t be an issue. Justification to the State will be required to add anything. This County is more restrictive than the State, who has already said what is ineligible. If the previous recommendation was adopted with a few changes, it would be a reasonable approach and would limit the added lands. Ms. Fancher noted that there was a comment by Duncan Brown regarding changes being justified. Others are worried about grandfathering. She agrees that if they are not eligible now under current Sate law, they should not be grandfathered. These lands are not eligible and not entitled. State law controls, and the County has to follow. The UAR’s and areas of critical concern need to be considered. In regard to adding in subdivisions, this is the prior recommendation of the Planning Commission. Subdivisions are allowed by State law. Kimry Jelen testified that Kathryn Lindbloom mentioned that Sunriver and Black Butte bring in business and are not that noticeable from the road. They are successful because of the views and natural areas. Ms. Jelen is concerned about the quality of life, wildlife and water. Perhaps a larger overview is needed by the County, and a public forum to decide how the County should be developed, and overlay the destination resorts over that. To start adding more lands does not make sense. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 10 of 14 Pages There are many impacts of destination resorts and residents have to carry the burden of those impacts. Eagle Crest is its own town, but its residents use the local roads. She does not see the larger priorities being addressed. The big picture needs to be looked at, so that nothing is lost. They can’t afford to lose what makes Oregon unique. Frank Deggendorfer said he is impressed by the testimony given. In looking at the Planning Commission’s recommendations, he has a number of concerns. He owns 316 acres, with subdivisions on each side, and because of that his land is a forced green belt for all the neighbors to enjoy. As the destination resort remapping process evolves, this might change. The reason for his comments is to ask for clarification on the Planning Commission’s recommendations. When Bend gets its new urban growth boundary established and the population reaches 100,000, most of this issue will be moot because no new destination resorts will be allowed within 24 air miles of Bend. Also, regarding what might be considered “prime” farmland in Deschutes County, he is confused. He mostly grows rocks. In regard to wildlife, the studies are 30 years old or older. The applicants or staff need more current studies to rely upon. Irrigated lands of 40 acres or more contiguous is one criteria, but he has this plus a lot of dry land. All EFU lands are eligible, but on the other hand they are not. He asked how he can make his voice heard. Clarification needs to take place before a rational decision can be made. Pamela Burm of Sisters said she feels too many things are unknown. Water is a big concern. She asked which way the County is going to go with conservation and the environment. Alan Holzman, Vice President of the Sisters Planning Commission, spoke individually. He said last year County staff came before the Sisters Planning Commission; he is a supporter of the Planning staff and they have a lot of good information. Sisters also has a good staff for this, and is puzzled why the County Planning Commission has not relied on them more. There is a lot of responsibility, whether appointed or elected, to listen to folks with vested interests and well as the everyday citizen. He is somewhat concerned that the County Planning Commission has not always listened or has chosen to ignore public testimony. The professional Planners bring a lot of knowledge to the table. The original plan was much simpler, but now there is a totally different recommendation from the Planning Commission. He hopes the Board can bring this back under control. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 11 of 14 Pages Commissioner Baney acknowledged that the original request was to reduce the amount of lands. Lyn Mattei asked that the record be left open for at least seven days. She wants to submit testimony in writing as well. The Board has to consider the Planning Commission’s recommendations, and at least four of the motions rely on whether farming is economically viable. There are hard luck stories with farming, but are also success stories. One farmer wanted to do a bed & breakfast, another wanted to do a community center; they wanted more flexibility in the use of farm land Farmers should have some flexibility in using their farmland for more economic viability. The Board should not necessarily adopt the extreme position that farming is not viable. There are many less intrusive measures, some of which are listed in the matrix that the Planning Commission effectively rejected. (She read some of the wording from the document.) She suggested that the Board suspend the mapping process and finish those applications that are already underway, and spend the next couple of years working with the State to make the use of agricultural lands more flexible. The findings are inadequate to support compliance with State law, Goal 8 and the comprehensive plan. The grandfather clause includes properties that are not eligible, and violations cannot be grandfathered in. This does not meet State law, and should not be a new right. Tom Filcich said he wants to learn about government. He read the recent Bulletin article and has begun to lose confidence in the Planning Commission and upholding the public trust. He thought they would be taken to task for what they are doing. The testimony given today is impressive and he wants to honor what these citizens have said. He realizes there is a controversy with the Planning Commission, and they need to regain the public trust. Personally, he objects to staff having to spend so much time following up on this work. No further testimony was offered. Mr. Gutowsky said a directive of the Board was to summarize the testimony received at the Planning Commission meetings, and this is in the record. The Board has suggested extending the hearing, so a date certain is needed. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 12 of 14 Pages Commissioner Baney said that some matrix in the past will show staff recommendations, especially if something is not legally defensible. She’d like to see that column added. She has not found a matrix that includes public testimony on different types of ideas. Commissioner Unger would like to know staff’s input on the legalities. Commissioner Unger said that public testimony is not necessarily representative of the whole. Mr. Gutowsky said that all of the recommendations listed are legally defensible. It is important to know that they received direction from the Board to find out more about remapping. They held thirty meetings, and draft criteria was given to reduce the map based on public input. This input guided the draft text amendments. On December 2, the Planning Commission added some clarifications regarding contiguous ownership and other things. This all became the staff recommendation. Since then, the Planning Commission made a lot of changes. He feels that it should go back to the original recommendation. If things have changed since then, he needs to know based on policy direction so they can draft the documentation accordingly. Commissioners Baney and Unger would like a review of what the policy was before; which was how to make the map smaller. The Planning Commission is allowed to make these changes, but they are an advisory group and cannot change policy. Nick Lelack said that one issue is the sites that are less than 160 acres. A key issue is that State law has two sets of criteria. One set is for mapping, another for siting. Siting requires 160 acres, but mapping has no acreage requirement, per State law. Staff wanted to use the siting criteria as a basis for mapping. Most subdivisions of any kind in the County are not likely to be eligible due to size, ownership, and funding. Staff believes that all are legally defensible but this may not make sense. Commissioner Baney said that discussions took place as to allow someone to stay on the map, but they would have to request to be left on, rather than just leaving them on. Mr. Lelack said that the next destination resort work group meeting at the State level is scheduled on Monday, April 12 in Salem. Mr. Gutowsky asked for clarification on what is wanted from staff at this time. Commissioner Baney said she would like to see staff recommendations listed in the matrix as to whether something is defensible or makes sense. Minutes of Board of Commissioners’ Business Meeting Monday, April 5, 2010 Page 13 of 14 Pages