MINUTES WASHINGTON COUNTY BOARD OF COMMISSIONERS AUGUST 2, 2005

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1 Board of Commissioners CONVENED: MINUTES Washington County, Oregon WASHINGTON COUNTY BOARD OF COMMISSIONERS 10:09 a.m. BOARD OF COMMISSIONERS: AUGUST 2, 2005 last updated: August 24, 2005 Vice Chair Andy Duyck Commissioner Dick Schouten Commissioner John Leeper Commissioner Roy Rogers (Left at 10:36 a.m. to join Chairman Brian and Senator Smith for a discussion of transportation issues) Chairman Tom Brian represented the rest of the Board at a meeting with Senator Gordon Smith to discuss transportation issues and was later joined by Commissioner Rogers.) STAFF: Charles D. Cameron, County Administrator Dan Olsen, County Counsel Elmer Dickens, Sr. Assistant County Counsel Kathy Lehtola, Director, LUT Mark Brown, Land Development Manager, LUT Jim Tice, Senior Planner, LUT Bill Gaffi, General Manager, CWS Patt Opdyke, CPO Coordinator Jeff Friend, Audiovisual Specialist Barbara Hejtmanek, Recording Secretary PRESS: Amy Jo Brown, Community Newspapers APPROVAL OF MINUTES: July 19, CONSENT AGENDA Vice Chair Duyck announced the following modifications to the Consent Agenda: There is a revised title for item 1.e. Item 1.j. is continued to August 16, It was moved to adopt the Consent Agenda, as modified. Motion Rogers

2 2nd Leeper Vote 4-0 CLEAN WATER SERVICES 1.a. CWS RO Acquire Easements for Sanitary and Storm Sewer (Approved Under Consent Agenda) 1.b. CWS RO Adopt Resolution and Order to Propose Levy of Assessments and to Set Date for Public Hearing for 82nd Avenue Local Improvement District (CPO 3) (Approved Under Consent Agenda) LAND USE AND TRANSPORTATION 1.c. MO Authorize the Execution of the Dedication Deed for the Conservation Easement for the Forest Grove Northern Arterial/Hwy. 47 Project (CPO 12) (Approved Under Consent Agenda) 1.d. MO Set a Public Hearing for the Exchange of Property for NE Brookwood Parkway/NE Airport Road to W Baseline Road Project (CPO 9) (Approved Under Consent Agenda) 1.e. MO Vacate a Portion of Sain Creek Road (CPO 11) (Approved Under Consent Agenda) COMMUNITY DEVELOPMENT 1.f. MO Approve HOME Investment Partnership Project Agreement for Tualatin Valley Housing Partners Fircrest Manor Apartments Project (Approved Under Consent Agenda) SUPPORT SERVICES 1.g. MO Authorize Private Sale of County-Owned Property to Arbor Station Homeowners Association (CPO 6) (Approved Under Consent Agenda) 1.h. MO Approve Amendment to Agreement with Oregon Department of Forestry and Tillamook County Pertaining to Exchange of State Forest Lands (Approved Under Consent Agenda)

3 1.i. MO Authorize Private Sale of County-Owned Parcel (CPO 1) (Approved Under Consent Agenda) 1.j. MO Approve Contract Amendment with Lifeworks Northwest for Mentor Services/Increase Expenditure Authority (Continued to August 16, 2005) SERVICE DISTRICT FOR LIGHTING NO. 1-A COUNTY SERVICE DISTRICT 1.k. SDL RO Form Assessment Area, Authorize Maximum Annual Assessment and Impose a First Year Assessment for Arbor Station No. 3 (CPO 6) (Approved Under Consent Agenda) 1.l. SDL RO Form Assessment Area, Authorize Maximum Annual Assessment and Impose a First Year Assessment for Thompson Glen (CPO 7) (Approved Under Consent Agenda) 2. ORAL COMMUNICATION (2 MINUTE OPPORTUNITY) Joe Evers, no address provided, addressed two matters and submitted written testimony about each. (Testimony may be found in the Meeting File.) He reported that recently, he and other "former FAA boys" noticed that the sheep barn is in bad need of repair. Mr. Evers proposed restoring the barn to its original state. He reviewed that this building was moved from Shute Park to its present location by FAA members. Mr. Evers indicated that the restoration would be overseen by Jason Rau Construction. He asked the Boards permission to proceed with the plans to restore this building at no cost to the County. Mr. Evers told the Board that he and Vice Chair Duyck recently discussed how much acreage is needed to put on a fair. He said that Vice Chair Duyck believed that a lot of fairs are on less than 30 acres. Mr. Evers serves on the Oregon State County Fair Commission and helps monitor these fairs. He provided the Board with a list of fairs with comparable attendance to the Washington County Fair. Mr. Evers list included the following information on each Oregon fair listed: Acres owned County money received Directors salary Food concession spaces Commercial exhibits Profit or loss 3. PUBLIC HEARINGS LAND USE AND TRANSPORTATION 3.a. RO Consider Measure 37 Claim by Daniel and Edith Rickard (CPO 10)

4 This item was withdrawn from todays agenda and will be considered at a later date. Vice Chair Duyck reviewed the Measure 37 hearing process for the following claims. 3.b. RO Consider Measure 37 Claim by Patricia Johnson (CPO 8) Mark Brown provided the following facts regarding this claim: The property is located on Keller Road. Claimant acquired the property in The property is acres and is currently located in an EFC district. There is one dwelling on the property. The proposal is to divide the property into six lots and construct five additional dwellings. At the time the claimant acquired the property, there was no zoning on the property at all. Dwellings were allowed by right, with no minimum lot size. Since 1959, there have been a number of regulations that have been approved in the EFC district, limiting the use of the property. Claimant estimates the lost value at $1,000,000. Staff has determined that the claim is complete and is valid. Board options: approve compensation or decide to modify, not apply or remove the restricting land use regulations. Mr. Brown recommended that the Board adopt the Resolution and Order approving Claim No. 37CL0075 to modify the following regulations of the Community Development Code: Section , 3.1D and 5; Section 424-2; Section F. The public hearing was opened. The applicant waived the right to make a presentation. OPPOSITION Michael White, NW Pumpkin Ridge Road, North Plains, Oregon, told the Board that he lives above and to the south of the Johnson property. He expressed the following concerns about this claim: He suspected the claim value is high, given that there are several larger parcels for sale for much less money in the area. Keller Road is a relatively unimproved, steep gravel road and is narrow enough that two cars may not pass each other. He presumed that the Johnsons would be responsible for upgrading the capacity of that road if a subdivision is built so that emergency vehicles have access. He was concerned that this development would cause North Plains to consider annexing his neighborhood, which is currently sparsely populated. (He moved here for this reason.) He was concerned about the elk herd that frequents the neighborhood, as well as the bobcats and coyotes.

5 He recommended that the Board consider lighting standards in terms of minimizing the impact that any development might have. There is quite a bit of gunfire in this area. An increased density in housing would raise the risk that someone might be hurt. He stated that it might be a good idea to have five additional neighbors watching out for fire problems. Three unattended fires have occurred this year, which have been controlled or extinguished by the Fire Department. The Johnsons could not be found when the fires were burning. REBUTTAL Patricia Johnson, NW Keller Road, North Plains, Oregon, said that she has lived on this property for almost 60 years. Her goal was to have this property subdivided. Mrs. Johnson informed the Board that she has three children and three grandchildren and would like for them to be able to build a home here if they so choose. Mrs. Johnson planned to give each a five acre plot. She admitted that Keller Road is narrow and rough but pointed out that it is a County road. Mrs. Johnson said that she has called in at various times to ask that the road be graded or fixed but acknowledged that County funds are limited. BOARD DELIBERATION Commissioner Schouten asked for staff response to Mr. Whites remarks. Mark Brown recognized that Keller Road is a County road and is subject to the Countys maintenance schedule. He said that the detail about the development and whether or not the number of proposed lots can actually be achieved will be decided at the development review stagethe next stage in the process. Mr. Brown stated that the adequacy of the transportation network, the actual number of lots, the size of the lots, etc. will be evaluated and discussed once a development application is actually received. Commissioner Schouten wondered if this would include the conditioning of road improvements. Mr. Brown said that this could occur but imagined that it would likely be an issue of public safety. He indicated that the width of the road would be one thing that would be assessed during the development process. Mr. Brown did not know how to respond to the annexation issue because it is speculation as to when the City of North Plains might look at annexing any of these areas. He recognized that the proximity of shooting to the additional houses would be a complaint-driven situation, which is found from time to time throughout the rural area. Mr. Brown observed that this is, in a way, a consequence of Measure 37 itself and what follows thereafter with subsequent development. For the benefit of the television audience, Vice Chair Duyck clarified that the Board is not approving development today. Rather, he explained that the Board is hearing a Measure 37 claim which would waive the restrictions to that development. Vice Chair Duyck said that any conditions placed on the development will be done at the development stage. Commissioner Schouten noted that this particular property has been owned by the same owner since 1959.

6 Vice Chair Duyck identified the Boards role today as having been clearly defined by the voters when they approved Measure 37. It was moved to adopt the Resolution and Order and approve Claim No. 37CL0075 by modifying Community Development Code Section 342 (Exclusive Forest and Conservation), Section 424 (minimum lot size for new lots in the EFC District), and Section (forest dwellings) only to the extent necessary to allow development of the property consistent with the development request. A development request for additional development will require a separate decision by the Board. Motion Rogers 2nd Leeper Vote 4-0 Commissioner Schouten recalled that Mr. White questioned the $1,000,000 loss of value of this property. He said that that unless the Board is willing to consider compensation at this stage, the Board need only find some diminution of value. Commissioner Schouten explained that the Board does not need to inquire further into whether or not it is $1,000,000 or any other number. He summarized that if there is some diminution, the Board must waive or pay compensation. Commissioner Schouten said that the fact that the family has owned this property for a generation or two would add further value. For the record and benefit of viewers, Commissioner Leeper stated that he did not like the Boards action but could not see any choice based upon the fact that Measure 37 was passed in the General Election last Fall with over 60 percent voter approval. He indicated that the Board is just waiving these restrictions and is not blessing any specific development. Commissioner Leeper noted that the Board really does not have any flexibility. He said that the Board can either pay the $1,000,000 or waive these regulations. Commissioner Leeper recognized that the County does not have $1,000,000 to pay this claim. He concluded that the Boards only recourse is to waive the appropriate regulations to allow the owner to develop the land as requested. 3.c. RO Consider Measure 37 Claim by Robin and Michael Herb (CPO 14) Mark Brown recited the following data regarding this claim: The property is acres. It is located on the north side of the Wilson River Highway, just east of Banks. The claimants acquired this property in It is located in an EFU district and currently has one single family dwelling on the property. The proposal is to divide the property into seven lots and construct six additional dwelling units. At the time the claimants acquired the property, it was zoned F-1. (The F-1 district allowed dwelling units in conjunction with farm use or forest use.) Since that time, a number of regulations have been adopted by the County and State limiting the ability to build dwellings on this particular property. Claimants have estimated that the loss in value is $400,000.

7 Staff has determined that the claim is complete and is a valid claim. Board options: approve compensation or decide to modify, not apply or remove regulations that have restricted the use of the property. Mr. Brown recommended that the Board adopt the Resolution and Order approving Claim No. 37CL0085 by not applying the following provisions of the Community Development Code: Section B, D and 340-7; Section 424-1; Section A and B. He acknowledged receipt of two letters of comment relative to this claim. (Letters may be found in the Meeting File.) Mr. Brown corrected the agenda sheet on page 25 of the packet: third paragraph, "dwellings will be allowed by right." He told the Board that this is not technically correct and clarified that dwelling units are allowed in conjunction with farm use. At this point, Commissioner Rogers excused himself to leave the meeting in order to meet with Senator Gordon Smith, Chairman Tom Brian and others. Commissioner Schouten asked Commissioner Rogers to let Senator Smith know that the rest of the Board would have liked to attend but had these Measure 37 hearings to hear. Commissioner Rogers promised to pass along these sentiments to Senator Smith. Vice Chair Duyck thanked Commissioner Rogers for joining the Board for the time that he could today. Commissioner Schouten referenced the F-1 standards, which allow a single family dwelling in conjunction with farm use or forest use. He observed that the proposed development calls for dividing a little less than 38 acres into seven lots and constructing six additional houses. Commissioner Schouten asked what standards would apply to the six houses in conjunction with farm or forest use. Mark Brown commented that staff has pondered this quite a bit and looked back at how things were done at previous points in time, when there was no minimum lot size but dwellings were allowed in conjunction with farm use. He reported that there was some variability years ago in terms what the County was doing. Mr. Brown stated that this will be a development issue when the development application comes in. He said that a lot approaching five acres is likely to be able to demonstrate that there is some semblance of farm use of that acreage. Mr. Brown observed that as lot sizes get lower and smaller, it becomes more and more difficult to demonstrate that there is a viable agricultural use happening with a smaller lot. He expected, at the development stage, some demonstration on the part of the applicant that the proposed lot size does demonstrate some measure of viability with regard to agricultural activity. The public hearing was opened. No applicant or other testimony was offered. Vice Chair Duyck acknowledged receipt of two letters, both of which may be found in the Meeting File. He indicated that both are opposed to this application and express concerns about the agricultural practices as well as ground water. Commissioner Schouten added that another concern expressed in the letters has to do with a flight path.

8 Vice Chair Duyck said that there are other concerns contained in the letterall of which will be addressed at the permitting stage. The public hearing was closed. It was moved to adopt a Resolution and Order approving Claim No. 37CL0085 by modifying Community Development Code Section 340 (farm dwelling standards), Section 424 (minimum lot size for new lots in the EFU District) and Section (farm dwelling standards) only to the extent necessary to allow development of the property consistent with the development request. A development request for additional development will require a separate decision by the Board. Motion Leeper 2nd Schouten Vote d. RO Consider Measure 37 Claim by Ronald and Laura King (CPO 13) (Approved Under Consent Agenda) Mark Brown briefed the Board on the Ronald and Laura King claim, as follows: This property is located on 366th Place, north of Long Road. The Kings acquired this property in The property is 8.19 acres in an AF-10 district. There are currently two dwellings on the property. At the time the claimant acquired the property, it was in an F-1 district. (F-1 allowed dwellings in conjunction with farm use or forest use. Since that time, Section 346 of the Code has been adopted, which limits the lot size in this area. As a result of the adoption of land use regulations since the claimants acquired it, they estimate a loss in value at $600,000. Staff has determined that the claim is complete and is valid. Board options: approve compensation or modify, not apply or remove certain development regulations. Mr. Brown recommended that the Board approve Claim No. 37CL0092 by adopting the Resolution and Order and to not apply Section (minimum lot size for new lots in the AF-10 District) of the Community Development Code. He acknowledged receipt of three letters of opposition to development-related impacts of the proposed development and future use of the property. The public hearing was opened. Vice Chair Duyck acknowledged receipt of three letters, all of which are in opposition to this claim. (Two of the letters are in the Meeting File; letter from Judy Malone was not received by the Clerk.) He announced that one letter is from Edwin Duyck and another from Phil and Denise Duyck. Vice Chair Duyck commented that while these two letters are from relatives, he has neither discussed this claim with them nor has any financial interests with them which would preclude him from hearing and deciding this claim. The public hearing was opened.

9 The applicant waived the right to make a presentation. No other public testimony was forthcoming. Commissioner Schouten noted that this property is still subject, even under Measure 37, to F-1 zoning, which allows single family dwellings in conjunction with farm use. He asked how this would be possible on two-acre pieces. Commissioner Schouten wished the property owner to have a chance to rebut this matter before the public hearing is closed. He wondered when this question will be addressed. Mark Brown said that as potential lot sizes get smallerpotentially down to two acresthis will be a tougher demonstration. He stated that this will be a case by case, fact-driven decision that staff will have to make when a subsequent development application is received from the claimant. Mr. Brown mentioned that an interesting thing that has happened over the last 30 years under the States land use program is that in rural parts of Oregon, there has been a move from subjective standards about farm use to detailed definitions. He indicated that it is the case today with the EFU District that there are minimum lot sizes that were not existing in the past with the F-1 designation. Mr. Brown said that while the definition has gotten better, it has also gotten more restrictive. He summarized that the County is faced with either compensating for those restrictions that have preserved larger pieces of property in the rural area or waiving those regulations and reverting back to a more subjective point in time where there was less to go on as far as making these decisions. Mr. Brown said that when staff gets to the next step of actually reviewing a development proposal, it will have to make an assessment about what is proposed and about the adequacy of support for whatever lot size the applicant comes up with. He felt that these would all be case by case, fact-driven decisions. Vice Chair Duyck agreed with Mr. Brown in terms of agriculture being sustained on two-acre parcels. He went on to say that this is not only possible but also very common in Washington County. Vice Chair Duyck was aware of an individual with two acres who had these in farm deferral and farmed these intensely with raspberries. He indicated that this was the individuals supplementalnot primaryincome. Vice Chair Duyck stated that this person contributed substantially to agriculture because he farmed intensively and sold it fresh market. He noted that the face of agriculture is changing in these modern times. Commissioner Schouten asked County Counsel to comment on this discussion. Dan Olsen believed that staff covered this topic very well. He reiterated that it will be a case by case determination, part of which will be based on the thinking back at the time when the County was dealing with these subjective criteria. Mr. Olsen reviewed that staff did see lots of different kinds of farming proposals in the past. Joe Evers, no address given, asked the Board to clarify issues surrounding ownership, based upon the claims he heard discussed today. Vice Chair Duyck responded that the original owner must be at least a party to the property. He said that Measure 37 was very clear that one had to have an ownership in order to file a claim. Mr. Evers asked if he would be considered to have ownership if his Dad owned a property. Commissioner Schouten said that for purposes of compensation, that would be relevant. He

10 pointed out that up to now, the Board has not done any compensation. Commissioner Schouten said that what has been relevant, therefore, is what the zoning was at the time that the current claimant or owner took ownership. Mr. Evers asked when he was considered the owner and wanted to know if it was when he was born. Vice Chair Duyck responded that the property was not transferred into Mr. Evers name at the time of his birth. Mr. Evers interjected that it was in his Dads name. Vice Chair Duyck explained that it would be his Dad who could then file a claim. Mr. Evers asked if the date he and his brother were in partnership would be an effective date. Vice Chair Duyck recommended that Mr. Evers meet with staff following todays meeting in order to get all of his questions answered. He recognized that it is a much more complicated issue than can be discussed now. Vice Chair Duyck stated that there are different criteria when filing for compensation versus filing for a waiver, for example. Mr. Evers said that relative to size of farm, he is concerned that farms seem to go to waste as they get smaller. As a farmer, this was his concern. Vice Chair Duyck was aware of these issues but emphasized that the voters spoke clearly with the passage of Measure 37. He indicated that the Board must follow a clear set of criteria. REBUTTAL Natalie Walsh, daughter of Ronald and Laura King, 3200 NW 366th Place, Cornelius, Oregon, asked for clarification of the zoning of F-1. She asked if this is farm and/or forest or if it is strictly farming. Jim Tice responded that with the F-1 district, the definition of what could be done changed over time. He recalled that F-1 came into being in 1962, when it had a number of farm uses listed in addition to forestry. Mr. Tice went on to say that later (exact date unknown), it changed to farm use only. He reasoned that some claims can do farm or forest and some can only do farm; it depends on the date the Code went into effect. Mr. Tice did not have a complete list of all of the ordinances and when they made the actual changes to the words. He said that when people come in for their development review application, staff will have to pull out the old Code and use the wording in existence at the time they acquired the property. Vice Chair Duyck surmised that the date on which the property was purchased becomes the defining moment in timenot so much the F-1 designation because that evolved over time. Commissioner Schouten reviewed that this property transferred on June 1, He gathered from staff that it is uncertain when exactly the law took effect which changed uses allowed under F-1 from Farm and Forest to just Farming. Jim Tice stated that there were a number of amendments to the F-1 district. He explained that staff has been unable to get all of the ordinances compiled. Mr. Tice indicated that staff will have to use the wording in place at the time the applicant acquired the property. He reiterated that the words changed over time. Mr. Tice related that staff has not compiled all the

11 ordinances that amended the F-1 District; however, he expected that staff will have this when people come in for development review. Commissioner Schouten recognized that staff cannot answer the speakers specific question today. Natalie Walsh understood that this would be considered when the development application is submitted. Mr. Tice listed other characteristics of the F-1 District as it has evolved. The public hearing was closed. It was moved to approve Claim 37CL0092 by Resolution and Order and by not applying Community Development Code Section (minimum lot size for new lots in the AF-10 District). Motion Leeper 2nd Schouten Vote 3-0 Commissioner Schouten referenced the letter submitted by Edwin Duyck, the last sentence of which reads "It was never intended that Measure 37 would replace our zoning laws." Commissioner Schouten pointed out that this is, in fact, exactly what Measure 37 does. He remarked that it is a very complicated measure and what the voters really intended is a tough call. 4. PUBLIC HEARING COUNTY COUNSEL 4.a. ADOPTED Third Reading, First Public Hearing of Proposed Ordinance No. 639 An Ordinance Amending Washington County Code Chapter 8.16, Towing and Disposition of Vehicles There was a motion to read Proposed Ordinance No. 639 by title only. Motion Schouten 2nd Duyck Vote 3-0 Dan Olsen read the proposed ordinance by title. The public hearing was opened. No public testimony was offered. The public hearing was closed. It was moved to adopt Ordinance 639. Motion Leeper 2nd Schouten Vote 3-0 Roll Call: All Aye

12 Commissioner Schouten ascertained from County Counsel that this ordinance will become effective immediately upon adoption. 5. ORAL COMMUNICATION (10 MINUTE OPPORTUNITY) None. 6. BOARD ANNOUNCEMENTS Vice Chair Duyck announced that Chairman Tom Brian and Commissioner Roy Rogers are representing the Board at a discussion of transportation issues this morning but are expected back for next weeks Extended Worksession. 7. ADJOURNMENT: 11:04 a.m. Motion Schouten 2nd Leeper Vote 3-0 Washington County Administrative Office 155 N First Avenue, Suite 300 Hillsboro, OR Phone: Fax: cao@co.washington.or.us