Pursuant to notice made to the newspaper of general circulation throughout Grant County, the radio station in Grant County, and to interested persons on the Grant County e-mail list, a regular meeting of the County Court was held at the County Courthouse in Canyon City OR.
9:07 am -- Called to Order. Present were Commissioners Scott W. Myers and Boyd Britton, Secretary Mary Ferrioli, Treasurer Kathy Smith, and Pastor David Hoeffner. Judge Mark Webb was excused for family medical needs. The Pledge of Allegiance was given to the United States flag. An opening prayer was given by Pastor David Hoeffner.
PROGRAM. MSP: Britton/Myers -- to accept the program with delay of discussion on the snow plowing schedule until November 12th.
9:15 am - Sgt. Gordon Larson, Karla Averett and Newell Cleaver entered.
Myers said that this weekend he and Britton painted sealant on the outside east wall of property at 530 E. Main in John Day to prepare the wall for backfilling that would prevent frozen pipes.
Myers reported on the Commission on Children & Families meeting at 5:30 pm on November 4th.
Myers and Britton reported on the court's November 4th meeting with representatives of Greater Oregon Behavioral Health, the Oregon Office of Mental Health and Addiction Services, and Community Counseling Solutions regarding the transfer of community mental health program services to CCS on October 1st.
Myers said he received an invitation from the Governor's office and would attend a public meeting on the Middle Columbia Steelhead Recovery Plan at the federal building November 6th at 6:30 pm. Britton said that he was scheduled to give the welcoming address for that meeting.
SCHOOL DISTRICT 3. School District No. 3 representatives Superintendent Newell Cleaver, Business Manager Karla Averett and board member Sgt. Gordon Larson met with the court to officially thank them for supporting the schools EXHIBIT B.
Cleaver pointed out that Grant County is one of the only counties within the state that shares county payment funds with local schools. He said this funding gave them the ability to reinstate the agriculture program and continue physical education programs, among some other services. Cleaver added that a lot of deferred maintenance still needs to be addressed, since the main focus for these funds has been to directly benefit the students. Averett expressed her appreciation for the opportunity to serve on the county Budget Committee and for the county's support of schools. Larson remarked on his experience as a board member and the difficult budgetary decision processes in which he has participated. He felt that our student's were in good shape academically; however, additional state mandates are coming and funding for those would be critical in the future. Larson added that deferred building maintenance also needs to be addressed in the future.
9:50 am - Linda Batten, Lori Stokes and Ed Clark entered.
TITLE II. Malheur National Forest representatives Lori Stokes, Linda Batten and Ed Clark provided information for discussion about public scoping activities for the County Road 18 Healthy Forest Restoration Act Project on the Blue Mountain Ranger District. The project area encompasses approximately 3,600 acres and is within a Wildland Urban Interface designated by the Grant County Community Fire Protection Plan. Britton asked Stokes to inform the line officer that last year's funding increased for Title II cost the county an additional $500,000. Batten asked the court if the project met the county's needs and expectations. Britton felt the project addresses the fire corridor issue to a limited extent, but not the conversion factor for commercial products. He pointed out that the Healthy Forest Restoration Act gives the forest authority to expand the scope of this project. Forest Service representatives explained how that would not be possible for this particular project.
10:55 am - Meredith and Roger Ediger, Shaun Robertson, Richard and Judy Masters, Steve and Carol Walker, Hilary McNary and Shannon Springer entered.
PUBLIC HEARING. At 11:04 am the court opened appeal hearing ACC-08-01 filed by Steve and Carol Walker on denial of application PAR-08-07 for a partition to divide a tract into two parcels of approximately 80 acres and 215 acres. The 295.07 acre tract is zoned partly Multiple Use Range (MUR) and partly Exclusive Farm Use (EFU). Planning Director Hilary McNary and Assistant Planner Shannon Springer were present. Judge Mark Webb participated in the hearing by phone.
Chair Britton established that a quorum of the court was present and that none of the members would abstain for ex -parte contact or conflict of interest in this matter -- with the exception of Britton who declared that he has a business relationship with some parties. Britton asked if there were any objections to this body making a decision on this matter. There were none, so the hearing continued.
Appellants Steve and Carol Walker's objection to party status that is being asserted by Shaun Robertson, was addressed first. Note: Mr. Robertson had testified in opposition to the application for partition at the Planning Commission hearing and subsequently filed a Response and Motion to Dismiss Challenge and a Motion for Continuance.
Appellant/Objector Walker was given 5 minutes to present testimony. He recited statements that are already a matter of record.
Robertson was given 5 minutes to answer Walker's objection to party status. Robertson reiterated his Objection to the Motion to Dismiss. He thought it was a difficult issue to argue because he felt it was undetermined what the Appellant is actually arguing.
Chair Britton told Robertson that what the court is deciding now is the issue of standing.
Robertson argued that the first letter the Walkers submitted must be dismissed because it does not refer to the appeal, the appeal proceeding, or the code citation. He said, in the second letter, they didn't issue a challenge to standing but asked the County Court to look at the evidence which Robertson believed was not a responsibility of this body.
Chair Britton asked Robertson for some compelling evidence. Robertson said he was responding to that.
Robertson referred to the standard that the Oregon Supreme Court uses for appeals in land use proceedings and cited the Jefferson Landfill case which decided that a body cannot be more restrictive in procedural items than state statute allows. He didn't feel the court could have one standard for an Appellant and a more restrictive standard for other people appearing at the hearing. Robertson said, if a person appears at a local proceeding then they could appear on appeal. He did not think the determination of party status was within the authority of this body. He addressed the authority of the Planning Commission Chair to waive any section of Article 31 Procedures for Hearing. He said the Chair did not say, and has never said, there would be an immediate ruling. But, the Chair made a ruling on party status at the end of the hearing. Robertson felt, to overturn the Chair's decision in that matter, the court would need to have compelling evidence of the Chair's procedural error. He went on to refer to jurisdictional defects that he saw in the Applicant's letter. He said the first letter must be dismissed because it's not referring to the current proceeding and the second one is asking the court to do something that is not within their jurisdiction.
Webb stated that he was not allow party status for Robertson due to authority established by the Land Development Code. In Article 33.030 the court has an obligation and right to settle these kinds of challenges. Robertson was not entitled to notice so he doesn't have party status that way. He did not identify himself as a party as required by Article 31.100 (A). Even if he had, evidence in the record does not support any documentation regarding how he would be adversely impacted by the partition as required by Article 31.200 (B). Moreover, in the record, Robertson explicitly objected to the application for specific procedural reason, not any potential impact. He noted the Commission Chair did not formally waive certain procedural issues. Additionally, the Chair did not rule on Robertson's standing because the Chair could not rule on his standing since appropriate procedures were not followed by Robertson. For these reasons, Webb would vote to disallow party status.
Myers agreed with Webb's statements.
MSP: Webb/Myers -- to disqualify Mr. Robertson from party status based on relevant codes.
The motion was passed unanimously. Britton told Robertson he did not have standing, but he does have rights as a witness and his remarks at the first hearing will be kept in the record.
Robertson asked to receive a copy of the court's decision on party status.
Chair Britton established procedure for the appeal hearing and the rules of order according to the Land Development Code. It was noted that the court could affirm, reverse, or amend the decision made by the Planning Commission and may impose additional or different conditions that may be necessary to carry out its decision. The court may also return the proceeding to the Planning Commission for additional consideration or action.
Planning Director Hilary McNary recited her complete staff report that is a matter of record.
Proponent Walker was given 10 minutes to provide testimony. He reviewed his application for a minor partition for the purpose of selling 215 acres and retaining 80 acres with buildings and home for a small ranch operation. He added that the Planning Commission found there is no evidence to support the fact that this division is appropriate for commercial agricultural operation. He noted that the Commission didn't say there was not enough evidence, but said there was no evidence. Walker cited the staff report under Criteria No. 3 that the parcels to be created must meet the minimum parcel size for the zones in which they are located. The parcel is currently being used for ranching purposes and will continue to be used for agricultural purposes after the partition. His testimony on record states there would be no loss of agriculture as a result of the proposed partition, and they are not asking for a permit to build a house. He added that the land is under farm deferral and qualifies as a commercial operation. Besides growing hay, Walker said he rents pasture on both sides of the highway and spends 4 hours a day doing irrigation. Walker contends that the decision to deny the partition application was in error, and evidence was provided on record that this is a legal partition meeting all size and use requirements of the Code 64.090 & 66.090 and; therefore, must be approved.
No other proponent testimony was offered.
Opponent Roger Ediger, who participated in the Planning Commission hearing, believed the Commission members came to a unanimous decision after thoughtful consideration based on the testimony and evidence on record, and careful deliberation. He said he felt there would be loss to agricultural land because the sum of the production of the parts could never equal production of the whole. Ediger felt it was strange that the applicant could guarantee no loss of agricultural when sold. Because, if it is sold, the Walkers would have nothing to say about where a house or houses, barns, or infrastructure are located. Specifically, Ediger asked the court to consider that the applicant is asking to sandwich an 80 acre parcel in ownership patterns that consist of hundreds or thousands of acres. He cited implementation in part of the planning documents where paragraph 9 clearly states -- the size of parcel must conform or meet the size of the existing commercial farm operations. But, an 80 acre parcel would not. He believed this partition would impact assessment and taxes, and encourage further division, non-agricultural uses, dogs, trespass, weed issues, etc. Ediger urged the court to follow the decision of the Planning Commission which he believed was rendered on the evidence, and was fair and just.
Opponent Meredith Ediger reiterated that the Commission did due diligence and the decision was fair and unanimous. She cited policy 17 -- conversion of agricultural land to non-farm uses shall be based on consideration of no adverse impact on adjoining agricultural area. She believed most people understand that small parcels are incompatible in agricultural lands because of dogs, plowing / dust, cattle, spraying, seeding. She stated that if policies on land use rules aren't going to be followed then the court needs to change them in a planned manner.
Discussion took place about the allowance of Robertson to speak as an opponent witness. McNary was not sure whether or not that could be allowed, because the witness that would have been called at the Commission hearing would already have their testimony on record. Britton was inclined to allow Mr. Robertson to speak as a witness. Webb said Robertson had witness status; his comments would be confined to the record.
Robertson's subsequent presentation on case law and jurisdictional defects was questioned by Webb who believed his arguments about procedure were not relevant to his status as witness in this appeal that is based on record. Robertson believed, at appeal, any issue of law can be argued, but new evidence cannot be presented.
Springer referred to the appeal hearing procedure within the code and felt that without party status, a witness does not have the opportunity to speak.
Britton allowed Robertson to speak and asked him to confine remarks to evidence in the record. Robertson objected to the proceeding and the limitation on presentation of evidence. He said he would obviously go to LUBA on this. Robertson was of the opinion that there were real procedural issues and the appeal did not conform to requirements of the Land Development Code.
Britton asked for neutral party statements. None were offered.
Rubuttal testimony. Appellant Walker acknowledged that Robertson and Ediger have claimed that the application should be denied because it does not comply with paragraph 9 on page 12 of the Comp Plan that talks about the median lot size within a two mile radius of the property. He said the Planning Director pointed out the Commission and Department have never interpreted that language as a requirement of partition applications over the last ten years. Walker felt the Department and Commission correctly applied the Comp Plan in the past. On page 4 the Comp Plan states the county also finds, while the plan is the controlling document, it must remain flexible and be administered through implementing ordinances of the county. He added that paragraph 9 doesn't require applicants to demonstrate compliance with the median size goal, it just requires the county to eventually pass ordinances that create these requirements. But, that hasn't happened. He felt he should only be held accountable to rules that existed at the time of application. He acknowledged that not all language in the Comp Plan is consistent, and that it isn't supposed to be a set of rules. Walker felt it wasn't right to use bits and pieces of the Comp Plan to deny an application when it complies with all requirements of the actual regulations.
Rubuttal testimony. Mr. Ediger wanted to know why the Commission has not applied the land development rules, as Mr. Walker suggests. He thought we could not pick and choose what rules we want to use, but these rules were in place when the applicant applied. Ediger felt it was dangerous not to apply the rules, but to reform them along the way. Ediger supported the findings of the Commission and their unanimous vote.
Rebuttal testimony. Mrs. Ediger recited a small part of the agricultural policy in the Comp Plan which states that county policy is "to preserve agricultural lands." She felt that any partition or subdivison would not preserve agricultural lands.
Rebuttal testimony. Mr. Robertson said the Appellant did not provide any statutory authority, law, or evidence that would justify the conclusion that the test of the Comp Plan does not apply in this case. He referred to an August 17 letter he submitted that draws a clear legal line between the Comp Plan and mandatory approval criteria. He said that was never objected to and there was no contesting testimony or evidence against that. He believed the Appellant failed to prove there was a reason not to apply the Comp Plan, that standards in the code were failed, and there was a jurisdictional defect.
Britton instructed the parties to summarize their cases.
Proponent Walker summarized that ample evidence was shown and testimony provided during the hearing to satisfy requirements of Land Use Code 64.090 and 66.090. He's shown why the Comp Plan cannot be used in a decision on this application as requested by the Respondent and Mr. Ediger. He cited language in the document that states - while the plan is a controlling document, it must remain flexible and be administered through implementing ordinances of the county. He said median size is not in the county code, but it is up to the Commission to decide (with public input) which goals should be transferred to the code, and equally important, the purpose of the goal -- Is it to reasonably regulate growth or to prevent growth? He requested that the court reach a decision to approve the partition application and not remand the decision back to the Commission.
Opponent Mr. Ediger summarized that if substantial and reasonable evidence were not provided before the Commission, he was at a loss as to how they could have rendered their unanimous decision after the heartfelt deliberation they went through. He felt this wasn't an issue of growth or anti-growth. Ediger thought growth was appropriate in a number of areas within the county, but this prime agricultural area is not one of them. He said it has been proven that one partition would lead to another division. He believed the application for partition should not be allowed.
Webb asked Mrs. Ediger how this smaller partition, in and of itself, would interfere with neighboring properties in a way that the larger parcel doesn't already interfere.
Opponent Mrs. Ediger explained that by partitioning and adding another parcel there will be another set of problems - dogs, trespass, hunting. Any change of hands and future residents adjacent to agricultural operations would likely object to the ongoing activities.
Webb asked Mr. Ediger about his statement that the 80 acre piece does not fit with adjacent property. But, was that in terms of size or economic viability?
Opponent Mr. Ediger replied that was in terms of commercial farm operation.
Webb asked Mr. Ediger if he was convinced, and could support, that the 80 acre piece would negatively impact agricultural viability, if we assume there are no additional structures and there would be no further division of that parcel in the future.
Mr. Ediger replied by asking, if it is partitioned, who would pay whatever the price and not put a house on it?
Britton pointed out to Webb that we are addressing the appeal on its face, not what could happen down the road.
Webb made the point that mandatory rules and policy might conflict if, in fact, the smaller parcel could be shown to be economically viable. That would provide a reason to allow a partition despite the median size requirement. But, he is not saying that is right. However, conflicting criteria may need to be addressed by the Commission or the court in the future.
Robertson said it appears to him that the court may be retrying this case rather than addressing the appeal.
Britton acknowledged that the court has gotten off the path a little bit.
Myers asked McNary when Robertson was first given notice of the application. She said Robertson requested to be given notice; however, he was not a party required to be noticed by statute.
Webb asked Mr. Walker about Ms. Mullins question at the Commission hearing about whether it would be economical if the piece was smaller.
Appellant Mr. Walker said Ms. Mullin . . .
Robertson interrupted on a point of procedure, but Britton did not allow the interruption.
Appellant Mr. Walker said Ms. Mullin was trying to satisfy questions about profitability and that really wasn't what Walker had been speaking to. Rather, the issue was whether it was viable as a commercial farm, and it is. He said profit isn't part of the equation for a commercial farm, profitability is mentioned in terms of gross profit. Walker addressed the number of wheel lines and hand lines that he runs on a daily basis on both sides of the highway. After he is done with that he doesn't have time to do mowing, raking and all of that. He felt it would be better managed separately.
Appellant Ms. Walker asked Chair Britton if there was a final summation before the court closes the testimony. Britton replied that she had that opportunity, but it has passed (her husband delivered it.)
Opponent Robertson cited a procedural matter about accepting additional evidence. However, Britton stated that he would now close the hearing.
Britton said his past decision in another case to override the Commission decision was, in retrospect, a poor judgment on his part. In this case, he felt the Commission did a good job evaluating all of the evidence and testimony. He stated that the code's prime objective is to preserve the integrity of our agricultural lands.
McNary confirmed, that is the underlying theme for our code and Comp Plan.
Myers understood the burden of proof in the appeal process was on the Appellant. He stated that, based on the record and the hearing today, he believed the decision by the Commission was not arbitrary, capricious or done willy-nilly. He thought it was studied and thought out, and the code was applied to their decision. In his estimation, the burden was not proven by the Appellant.
Webb felt the Commission made the right decision based on the evidence. MSP: Webb/ Myers - to uphold the Planning Commission's decision on application PAR-08-07. McNary said decision documents would be prepared with the attorney's assistance and would be ready for the court's signature next week. They would be mailed after that.
Robertson requested a copy of the Appeal Staff Report, the tape of the hearing, a copy of the written decision on his party status, and a copy of any written advice that legal counsel provided to the hearing body regarding status issues. He also requested that the record be left open for 7
days following this hearing. McNary and Britton indicated that nothing was written regarding status by our attorney, nor where there records of phone conversations.
Appellant Walker asked to receive a copy of any legal advice. Britton replied that he would get everything that is on record.
Britton declared the hearing closed.
12:15 pm -- Lunch Recess. The meeting reconvened at 1:30 pm. Commissioners Myers and Britton, the Court Secretary, Title III Coordinator Sue Newstetter, and Treasurer Kathy Smith were present.
TITLE III. County Title III Coordinator Sue Newstetter explained the following proposed project applications under the old Title III program. She said the county is allowed to use excess Title III funds for former categories. She recommended accepting these projects under the former Title III program criteria.
Grant County Extension Service Office Relocation. [Category (4) Forest-related Education Opportunities and Category (5) Fire Prevention and County Planning]. The objective is to house pertinent education materials, developed under the Title III Mobile Classroom project, within the Grant County Extension office being relocated to 530 E. Main Street in John Day to better serve the public. Funding would be used to renovate the county-owned property and serve as the primary distributor of mobile classroom education materials. Project implementation budget includes $30,000 (office remodeling), $6,000 (equipment purchase), and $14,000 (contingency.)
Newstetter believed the quote from one contractor for the remodel was too high for a 1,000 ft. room. But, because these are public funds other quotes will be secured. Treasurer Smith was hesitant to use 100% of funds for the educational piece since some components are not related to the classroom. Britton agreed with Smith, in that some General Funds should be used since the county had already planned to finish the room. Discussion followed about unresolved issues regarding the T-1 line and a bathroom since those were not part of what the county was originally going to do. It was understood that those details could be worked out during the comment period that ends December 26th. MSP: Britton/Myers -- to allow Ms. Newstetter to submit the Grant County Extension Service Office Relocation proposal to a 45 day comment period.
Wood Fiber Utilization of Local Resources. [Category (4) Forest-related Education Opportunities and Category (5) Fire Prevention and County Planning]. The objective is to conduct an assessment of local resources regarding potential wood fiber utilization, ranging from juniper eradication to conventional logging slash piles, and opportunities these sources of wood fiber may provide for renewable energy, in addition to wildland restoration and watershed conservation opportunities. Project implementation budget includes $50,000 (compilation of assessment report), $10,000 (travel / field trips), and $15,000 (misc. expenses). It was noted that interested private businesses have looked at the county for utilization of slash for different kinds of energy. So, Economic Development Coordinator Sally Bartlett and others have worked with Newstetter on an assessment that compiles data to provide the additional information that businesses need to know. Newstetter felt a local Steering Committee (appointed by the court) could accomplish this task. She thought this was a good mechanism to come up with a productive way to utilize the capacity of available wood fiber on private land for the increasingly popular pellet market. Judge Webb had initiated the project. During discussion it was pointed out that on federal lands the Forest Service would have too many rules with which to contend. Britton felt the Forest Service would not be a good partner on this particular project.
As an example, Newstetter shared information she obtained about an RFP opportunity for a Community Energy Partnership project (at no cost) with a non-profit called Northwest SEED (Sustainable Energy for Economic Development). The RFP, being prepared by Sally Bartlett, was due by November 14th. MSP: Britton/Myers -- to allow Ms. Newstetter to submit the Wood Fiber Utilization of Local Resources proposal to a 45 day comment period.
DENTAL CLINIC. Title III Coordinator Sue Newstetter explained that she has submitted a new budget for the Small Communities Incentive Fund (SCIF) grant because the original budget showed a shortfall. She was able to reduce expenses because the clinic was being housed within the Health Department, and the office supply budget had been much higher than necessary. Newstetter said she had realistically adjusted the monthly patient visits, and the amount of office and dental supplies needed, and was conservative with the amount of projected revenues.
Myers remarked on the Dental Clinic presentation that Newstetter made to the Commission on Children & Families associated with the delayed use of funds granted by the Commission.
Newstetter explained frustrating delays related to the SCIF program review process that the project has been undergoing over the past several weeks. She reported that the issues have finally been resolved and the grant period was extended to December 31st. She said that funds would be spent as soon as they are released, hopefully the first of next week.
Newstetter talked about bids that will be obtained for the installation of some used cabinetry and electrical and plumbing permits for those small tasks. The court was assured other building permits won't be needed due to the project's small scope and location within an existing building.
SNOW REMOVAL. The court signed a Snow Removal Contract with Winegar Excavating, Inc. that was awarded during last week's meeting.
BUDGET RESOLTUIONS. Court members reviewed and signed Resolution 08-49 Appropriating Unexpected Grant Funds, Maternal & Child Health, in the amount of $1,120 to purchase a refrigerator to hold additional immunization vaccines and Resolution 08-50 Making Intrafund Transfers MR/DD Lake County Fund, in the amount of $10,000 because expenses for DD49 in Lake County have exceeded budget authority.
2:05 pm - Brenda Percy entered.
PROBATIONARY WAGE. Personnel Manager Brenda Percy met with the court, on behalf of Planning Director Hilary McNary and Assistant Planner Shannon Springer, to present their response to the court's decision last week to grant full wages to an employee who recently returned to their previous job EXHIBIT A. McNary had urged Personnel Director Brenda Percy to ask the court to make a policy for employees who are re-hired to a previously held position. McNary was gone from her county job for 8 months and Springer was gone for 20 months.
Myers agreed that current policy needs to be either upheld or changed. Percy's opinion was that waiving this type of policy in this particular situation could open up the county to a lot of trouble, in terms of a discrimination suit. She said both situations should have been handled in the same way, but they were not. Percy suggested that the court stick to the policy and not waiver from it. Treasurer Smith said the court would need a cut off period for being gone from a county position. She suggested it might be a good idea to do what the Road Department contract allows, and let the court decide if the employee receives benefits back after a one-year absence. Myers sought clarification about the current automatic one year performance and wage probation period. He suggested that any return to work after a 90 day departure should be subject to performance and wage probation. Myers felt that major changes in a person's job were unlikely within a 90 day period and they probably deserve the previous pay rate. Percy said that seemed fair to her, but it needs to be a firm rule. Smith felt the court would need to make sure everyone is comfortable with the time period. The mandatory one year probation period went into effect July 1st.
Percy and Smith clarified that any reason for departure from county employment (lay-off, termination, resignation) would be eligible for the base wage if the employee returns within 90 days. Britton disagreed with the 90 day period. Because the government process moves slowly, He thought it should be a little longer. In any case, it was understood this new policy would be effective from the point of its adoption. Some discussion followed about the idea of making these two employees whole, based on the court's previous decision. It was generally agreed that this proposed policy change should be given more thought and addressed next week when the full court is present.
200 S. HUMBOLT. The court reviewed and discussed price quotes submitted for replacing three c