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HomeMy WebLinkAbout2010-07-19 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, JULY 19, 2010 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Dennis R. Luke and Tammy Baney; Commissioner Alan Unger was out of the office. Also present were Dave Kanner, County Administrator; Laurie Craghead, County Counsel; Tom Anderson, Paul Blikstad, Peter Gutowsky, Anthony Raguine, Kevin Harrison and Nick Lelack, Community Development; Tom Blust and Roger Olson, Road Department; media representative Hillary Borrud of The Bulletin; and approximately twenty other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Chair Signature of a Notice of Intent to Award Contract Letter for the Full-Depth Reclamation of Camp Polk Road. BANEY: Move Chair Signature of an Intent to Award Contract Letter to High Desert Aggregate & Paving for the full-depth reclamation of Camp Polk Road, in the Amount of $997,458. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 1 of 13 Pages 3. Before the Board was a Public Hearing (continued from July 7) and Consideration of First and Second Readings by Title Only, and Adoption, by Emergency, of Ordinance No. 2010-022, Amending the Deschutes County Code Chapter 18.216 to Comply with New State Statute Provisions, Amending Code to Revive Guest Ranch Provisions, and Adding to Code a Definition of Current Employment of Land for Farm Use. Paul Blikstad said this has to do with guest ranch provisions per State law and other changes made at the State level. He said that there is was recently an issue of whether a bed and breakfast is allowed in the EFU zone. Because of that, he brought up the fact that he had originally made a reference in the language under special uses, but that language has been removed. Being no testimony offered, the public hearing was closed. BANEY: Move first and second readings by title only of Ordinance No. 2010- 022, declaring an emergency. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. Chair Luke conducted the first and second readings of the Ordinance, by title only. BANEY: Move adoption. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. 4. Before the Board were Deliberations and Decision on Whether Staff Properly Interpreted County Code Provisions Applicable to File #LM-10- 17 and LL-10-15 (Landscape Management Site Plan and Lot Line Adjustment – Applicant: Eitel). Kevin Harrison gave a brief overview of the issue. The record was closed on July 6. One letter was received during the comment period (a copy is attached for reference). Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 2 of 13 Pages Commissioner Luke stated that there was testimony at the previous hearing that did not directly relate to the situation and cannot be used to make a decision. Mr. Harrison said the Board can uphold staff’s decisions as written: a site plan review of the structure; and a proposed lot line adjustment arranged with the abutting property owner. All of the parties are willing to make the lot line adjustment and it can proceed. Approval of both land use permits is necessary for Planning staff to sign off on the landscape management plan and ultimately the building permit. Commissioner Luke stated that the lot line adjustment would be necessary for a building to be placed where it is. It is also necessary to have a landscape management site plan approved. Ms. Craghead stated that the land use compatibility statement is necessary to proceed with permits. Commissioner Baney said that the structure is not permitted but already built, and the owners wish to bring it into compliance, but she wonders if a survey has been done to make sure that the setbacks are proper. She wants to do what she can within the law to correct this type of infraction. Mr. Harrison said that all three divisions (environmental health, building and planning) require a plot plan. No division requires a survey as part of this process. Ms. Craghead said that usually information provided by the owners is relied upon, except for a lot line adjustment which requires a survey. There is a fence on the other property lines. Commissioner Luke indicated concern about the location of the lot lines and sees nothing on the record that indicates there are correct distances from the side yard. Commissioner Baney added she does not want to rely on good faith efforts in this situation since the party involved did not act in good faith in the past. Mr. Harrison stated that a survey is required for the lot line adjustment. Tom Anderson said that the County made the conscious decision not to require a survey for most situations because of the cost involved for the applicants. On a submitted plot plan, however, the stamp lets the applicant know that they are assuming the liability if the plot plan is not accurate. If an error is made, they would have to make a lot line adjustment or remove a portion of the building to make this adjustment. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 3 of 13 Pages Commissioner Luke said that most people come in before building a structure instead of building it first and then finding out a lot line adjustment is needed. Commissioner Baney stated the only remedy for the neighbors is through the County, and she would like to bring the property back into line lawfully, and to make sure that the side setbacks are proper. If there is any way for the County to help with this clarification, it should be done. Ms. Craghead said that the required side setbacks are ten feet from the exterior wall. Mr. Kanner asked if Code is silent, does the Board have discretion to make an additional requirement. Ms. Craghead replied that the rules under the landscape management plan do not address this. BANEY: Move approval of the lot line adjustment. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. BANEY: Regarding LM-101, the Board will uphold staff’s recommendation, subject to a survey by a licensed surveyor of the side yard and rear setbacks, with the final survey submitted to the County. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. Commissioner Luke expressed concern about a structure that was built without benefit of inspections, including the foundation. He asked how that will be handled. Mr. Anderson stated that he cannot give an accurate answer to this question at this time. He has not been able to speak to the inspector today. Ms. Craghead said that a decision has been made orally, and this is an issue outside of the land use record. She recommended that the decision be signed before they discuss other aspects. Commissioner Luke would like to have the discussion anyway at the earliest possible time. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 4 of 13 Pages Before the Board was a Hearing on a LUBA Remand of the County’s Decision regarding a Plan Amendment and Zone Change from Exclusive Farm Use to Surface Mining (Millican – 4R Equipment). Commissioner Luke read the opening statement at this time. In regard to conflicts of interest or ex parte contact, the Commissioners stated that all involvement has been in open meetings. No challenges from the audience were presented. Paul Blikstad gave a staff report. Over the weekend he received two e-mails that say mostly the same thing, but they had to do with issues that are no longer relevant. This morning a fax came in from someone who is opposed to the mining site. This issue came first before the Board in 2004. (He referred to an oversized aerial map of the area.) Commissioner Luke said this remand is only on one area. Ms. Craghead stated that this only has to do with grazing allotments, including noise impacts on the domestic animals (cattle). Any other testimony would not be considered as part of the record. Mr. Blikstad said that a primary opponent asked to be included via phone, and was advised that this was not possible but that written testimony would be accepted. Commissioner Luke added that the conference phone can only handle two outside callers. This might be considered for expert testimony only. An allowance can be made to allow written testimony. Mr. Blikstad said that there is a tight timeframe involved, as the written decision needs to be back at LUBA by September 15. Bob Lovlien, attorney for the applicant since 2004, said that this remand was difficult to approach. He reminded the Board that the property is over 360 acres but the only portions that will be disturbed at any given time is about an acre plus a stockpiling location. Roger Borine of Bend is with the Natural Resources Conservation District and is an expert in this field. He has worked on these issues in several states for years. In regard to conservation planning, the plan developed in Oregon is used nationally now. The process he applied addresses a lot of factors: air, water, soil, vegetation, animal, wildlife and human concerns. He concluded that there should be no impact to ranching operations or cattle due to noise generated by mining activities. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 5 of 13 Pages Commission Luke said a lot of the report has to do with the flat pasture areas. Some is private and some is owned by government agencies. Mr. Borine said the report indicates it is the only pasture in the Horse Ridge allotment, with a common boundary. The map in the report lists names of pastures. There are six pastures in this allotment. It is non-irrigated rangeland. Commissioner Baney asked what happens when land is taken out of grazing. Mr. Borine said that no grazing in this pasture will be taken out of use. Commissioner Luke indicated that on page 5 it says that grazing is continuous. He asked if the animals get moved around so the land can regenerate. Mr. Borine said that on page 2 of the report, the allotment management plan from the BLM states that rangeland needs rest. The topography in the area has the other pasture areas being contiguous, and it makes it easier for the livestock to start low, going higher as the grass matures. The flat pasture is an area from which they move cows to other areas. Commissioner Luke asked when blasting and grinding would take place. Mr. Lovlien said this would normally take place in the winter months, but this is not part of the land use conditions. Mr. Borine stated that on page 2 of the staff report, staff feels that mining activities would occur year-round. His intent is that transporting and hauling would be year-round depending on market conditions. Commissioner Luke observed that there is no water within two miles of the site. Commissioner Baney asked about the noise impacts on the cattle and how that would be handled. Mr. Borine stated that in the Phase I site, there will only be one site blasted above ground. The others will likely be below ground. The noise level should not exceed the level already in that area. A brief discussion took place regarding some fencing, primarily around BLM land. Most of the land there does not have fencing in place. The cattle have free access to most of the land. Commissioner Luke asked if any of the motorcycle or ATV areas are close to the mining sites. Mr. Borine said there are a couple of staging areas and multiple trails in the area which are well-designated, and are not to be used during certain times during the year, primarily because of sage grouse. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 6 of 13 Pages Mr. Borine was asked to summarize his conclusions. He said the flat pasture was determined to be the impact area. The expanded impact area is over 5,000 acres. The ultimate time for grazing is in the spring – March, April and June. Most mining operations will take place in November through January. There was no evidence of water nearby, salting that attracts livestock, or feed supplements that would pull livestock there. Because of the timing, the possible occurrence of the cattle near the mine during operations would be unlikely and incidental. All relevant evidence to the impact area was identified and reviewed. He spent time there and drove the entire area to take an inventory. The analysis supports the conclusion that this mining will not impact ranching operations. Mr. Lovlien said that the rule does not say there can be no impact, but that a significant impact would have to be considered. Keith and Janice Nash, owners of the Evans ranch, came before the Board. Ms. Nash said that she feels staff failed to include some of the wildlife impacts. The Borine report is not very accurate and she does not think that LUBA understands grazing. It addresses the impacts to current agricultural practices. She is concerned about the noise of generators. They run year-round on public lands, in the forest in the summer and on BLM in the winter. The BLM information was from the Leslie Ranch management plan of about ten years ago. The old plan is no longer applicable as they do not have use of the land year-round because of the sage grouse. All they do is harvest dead grass and supplement with winter feeding when needed. They use the flat pasture only in November and December. They are allowed to use it less and less. The water source there does not freeze. She knows they are not supposed to talk about wildlife, but the sage grouse would be disturbed. They would be further restricted to what areas they can use as a result of mining. The impact areas are supposed to be the flat pasture, but she did not see this. The real impact is to their ranching operation. The other areas are part of other grazing allotments. They will face the same situation if there are negative impacts from mining operations. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 7 of 13 Pages Motorcycles are allowed three months of the year, August through December. Doing the rock on site does create noise year-round, if only crushing and transporting. The cows will travel further if there is less snow. They figure it takes about 150 acres to support a cow. BLM is managing to save sagebrush and not grass. The noise paragraph does not apply. There were some dove hunters there at one time that disturbed the cattle near the water source, and the cattle would not return for a long time. LUBA’s intent is to look at the impact to ranching operations. There is more to it than just the two issues. She feels that the operations will impact the Spencer Wells ranch negatively. She would like to submit more written testimony. Frankie Watson is a Millican property owner. She said this is an emotional issue for her. The rape, death and destruction of the Millican Valley should never have been considered . . . sound reverberates easily in this valley. There are people, wildlife and recreation in the area. It is one of the few remaining pristine areas in Central Oregon. (She read a lengthy statement that had been entered into the record at a previous hearing.) Bill Arras has lived in Bend for 35 years. He submitted information that he acknowledge has been excluded from the final decision. In regard to cattle, he said that the local ranchers know what impacts them. There is noise and vibrations through the ground as well. He supports reasonable development including the wise use of resources, but mining in the valley would change the quality of life there even for the cows. Susan Gray of Bend submitted written testimony from Tammy and Clay Walker, who were unable to attend today. Ms. Gray said that a year ago this property was entered by the Department of Interior on the National Registry of Historic Places – concerning the pictographs. The County needs to protect this area. Commissioner Luke left the record open until Friday, July 23, 2010 at 5:00 p.m. for written testimony relating to the issues on review from LUBA. The applicant has an opportunity to respond to that testimony by Wednesday, July 28, 2010 at 5:00 p.m. Mr. Lovlien stated that he would only provide rebuttal to whatever is already in the record. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 8 of 13 Pages Commissioner Baney asked what the National Registry impacts might be. Ms. Craghead said the Board would have to determine whether that would justify widening the protection area. The LUBA remand was based on information in the record which did not include this new information. It may or may not be in Goal 5. She suggested that the applicant address this in rebuttal. Commissioner Luke stated that this was approved in most part at the time LUBA reviewed the case, under the existing rules. This was not part of the remand. Mr. Blikstad said that a site plan review will be needed if this application approved, and the applicant will have to address this type of issue then. Oral testimony was closed at this time. 5. Before the Board was a Hearing and Consideration of First Reading by Title Only of Ordinance No. 2010-012, Amending the Comprehensive Plan to Adopt a Terrebonne Community Plan. Commissioner Baney read the preliminary statement at this time, and the hearing was opened. In regard to conflicts of interest, neither Commissioner had any to disclose. No challenges were offered. Peter Gutowsky entered the case file into the record, and did a PowerPoint presentation (a copy of which is attached). He said that Dr. Powell, a Planning Commissioner, had raised questions regarding the Plan and Statewide Planning Goals. The Board has no standing to direct how water districts are operated. The Board wanted the community to be engaged with the comprehensive plan update. There was broad support for the Terrebonne community plan. The Terrebonne domestic water system still serves the public, and was alerted to this public process. Regarding a plan amendment, there is nothing in Code that shows how to approve a legislative amendment. The County bears the burden to justify the Plan, and he feels that the Community Plan has adequate findings. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 9 of 13 Pages The Planning Commissioner recommended adoption, with one refinement regarding commercial expansion area policies. Commissioner Baney asked if there was anything presented asking for more help from the County. Mr. Gutowsky said that the transportation plan may cover some aspects. Commissioner Luke stated that there has been work in the past relating to traffic calming, and some is underway through the Road Department and ODOT. Nick Lelack said he attended all the stakeholder meetings, and transportation is a big issue that will need continual work. Steve Henderson, a Terrebonne resident, said he attended all of the public meetings, and there were two other town hall meetings held that included discussions about incorporating. He is the chair of the rural advocacy committee which supports the Plan. The overwhelming opinion of the residents is to support the Plan. The County listened and the process worked well. The opposition is being lead by a group of private property owners who have a vested interested in development. Those who support the Plan are willing to compromise. Most of the land that has been used for commercial purposes have been used in that way for many years. They recognize this is a burden and the land should be considered commercial. The Plan should continue through the process. They recognized that in five years things could change. He also supports a sewer although others do not due to the lack of funding for a project this size. People like the nature of the community as it is. Kay Walters has been a resident in Terrebonne for more than 40 years. She is Chair of the Community Water District. She encouraged the Board accept the Plan, which the community has stated fits their needs. Access is always a problem and it is hoped that links can be established. A house on the corner of B Street and Highway 97. From the Water District side, they are attempting to purchase water credits, keep water rates down and handle new properties. The majority of the Water Board took a stance to keep the rates as low as possible. The people who have moved there wish to keep the community as rural as possible. They are trying to work with ODOT to address ongoing issues with Highway 97. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 10 of 13 Pages Dave Molony owns a piece of property on the west side of Highway 97 that is used commercially. It appears that the Plan will work well for everyone. There is property just north of C Street that should be able to adjust the lot line so it can be used commercially. He is not tied to this property in any way. The place behind it is not a good location because of traffic, and the small lot is basically useless. Peter Gutowsky said that lot line adjustments were discussed, and this concept was withdrawn as to being too problematic. There was good testimony on four properties and they have not heard on the other property owners that could potentially provide more input. Steve Myrin was pleased that his property was potentially included in the commercial zone. He said that the split northbound would help a lot with traffic and pedestrian use. A pedestrian bridge would be very helpful, although he realizes it would be expensive. Ms. Craghead said that some minor adjustments need to be made to the final document, so it would be a good idea to keep the written record open for a while. The written record was left open until 5:00 p.m. on Monday, August 2, and the written documents will be prepared for the Board to consider after that date. 6. Before the Board was Consideration of Approval of a Release of a Tetherow Phase IV Performance Bond and Acceptance of Replacement Maintenance Bond. Anthony Raguine stated that the road improvements for this phase have been completed. BANEY: Suggested Motion: Move approval of the release of the Tetherow Phase IV performance bond and acceptance of replacement maintenance bond, issued by Insco Insurance Services in the amount of $114,634. LUKE: Second. VOTE: BANEY: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 11 of 13 Pages The Consent Agenda and weekly accounts payable vouchers will be addressed at the afternoon work session. Consent Agenda Items 7. Approval of Minutes: ƒ Business Meeting of July 14 ƒ Work Session of July 14 CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 8. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 9. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 10. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 11. ADDITIONS TO THE AGENDA Dave Kanner stated he would like to arrange for a joint meeting with the Planning Commission regarding height limitations in the La Pine Industrial Park, on August 19, 2010. Commissioner Baney said she will be out of the office probably the last half of August. She would like to have some guidance from the La Pine City Council as soon as possible since this seems to be a controversial issue. _____________________________ Minutes of Board of Commissioners’ Business Meeting Monday, July 19, 2010 Page 12 of 13 Pages