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2000-775-Minutes for Meeting June 29,2000 Recorded 7/12/2000VOL: CJ2000 PAGE: 775 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *CJ2000-775 * Vol -Page Printed: 07/12/2000 14:40:37 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Jul. 12, 2000; 1:01 p.m. Regular Meeting (CJ) NUMBER OF PAGES: 10 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK K P NCNED J L ? 2000 ES 1G Board Of Commissioners Y, A, y ;`l. E_ F't_P�'. '.!_h.6b N.W. Harriman St., Bend, Oregon 97701-1947 COUNTY Ci -HK (541) 388-6570 • Fax (541) 388-4752 www.co.deschutes.or.us Linda L. Swearingen Dennis R. Luke MINUTES OF MEETING Tom DeWolf DESCHUTES COUNTY BOARD OF COMMISSIONERS LA PINE INCORPORATION BOUNDARY DECISION Administration Building 1130 NW Harriman Street, Bend Thursday, June 29, 2000 Chair Linda Swearingen opened the meeting at 1:05 p.m. Present were Commissioners Swearingen, Dennis Luke and Tom DeWolf. Also present were Mike Maier, County Administrator; Bruce White, County Legal Counsel; Kevin Harrison, Community Development Department; and approximately 30 citizens. BRUCE WHITE: The Board of Commissioners has discretion whether, it its judgment, the lands proposed to be included are benefited, and whether the boundaries as presented are to be adjusted. It takes concurrence of two Commissions on the same boundary. The only issue affecting whether it goes on the ballot is whether there is a land use planning goal that is disputed. CHAIR LINDA SWEARINGEN: We all believe it needs to go on the ballot so the people can decide. COMMISSIONER DENNIS LUKE: Have the proponents suggested any changes to the proposed boundary? Minutes of Board of Commissioners' Meeting Page 1 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 Quality Services Performed with Pride WHITE: They have suggested that you may want to consider taking the Harrison and Young ranches out, although the proponents still feel those properties would benefit. The letter received from Ed Sullivan, the attorney for the petitioners, set out what the legal standard is for your determination on the issue of benefits. S WEARINGEN: I've previously expressed my concern about including resource land. There is no conceivable benefit for them, and taxpayers want to see a benefit; it does not make sense to include this resource land at this time. This land could be annexed in the future as needed. Incorporation makes a lot of sense for La Pine, but the boundary is too large, and this resource property needs to be left out. If I were an owner of this resource land, I know I would be fighting this incorporation. It is a real stretch of the imagination to think they would benefit at this time. Certainly these two properties need to be left out, and I would suggest all of the resource lands be left out as well until such a time as it appears necessary for them to be annexed. This still leaves the rest of the property contiguous, and as they expand over time and can provide services, then it makes sense for these properties to be annexed in. It will be tough enough providing services to all the citizens within the boundary, and it sets them up for unrealistic expectations that certainly cannot be met. That's my concern. COMMISSIONER TOM DEWOLF: I have again read over the letters from attorneys Ed Sullivan and Nancy Craven, who are two very bright attorneys who, of course, present differing opinions. The concept of benefit and the concept of services are related but are different things. You can provide benefit without giving any direct service; for instance, an improved road system even though you might not yet have a sewer line to your property. They could be receiving a benefit through a better business climate, and economic development. I agree that the resource lands should come out; however, it is not my choice. If the proponents suggested that these lands come out, I would go along with that. I don't know if potential legalities could affect holding the election in November. If the proponents said they would pull out the resource lands out of the proposed boundary as it isn't worth that risk, I would go along with it. From the very beginning I have stated that it is up to the people who live within the proposed boundary to make that decision. The proponents have done a lot of work and have had the input of some very knowledgeable land use experts. Minutes of Board of Commissioners' Meeting Page 2 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 v� ok As we all know, there are not many places that have an urban growth boundary that is smaller than their city limits by quite a wide margin, so this is a unique situation. I will go along with what the proponents wish. If Commissioners Luke and Swearingen do not agree, and if this could potentially be tied up in the courts, this is where I might change my decision. LUKE: The UGB will not be decided by this election; that is determined after incorporation takes place. I believe the courts will not rule on whether those lands would be benefited by being included in the incorporation boundary. If the election fails, then there is no point in this issue going to court. WHITE: I can't answer this question, since as you know this is not a common event, and there is not much case law out there on this type of thing. Your question is whether the courts would intervene prior to the election, keeping the election off the ballot. An injunction would have to be filed. There would have to be a determination on the likelihood of success on the merits. I would think that a court would defer and not interrupt the election process. If they make a preliminary determination to stop the election, but find later that they erred, they would have created a big problem. I would think that a court would be hard-pressed to keep it off the ballot. They could look at this issue at a later date, after the election, should the incorporation measure pass. LUKE: So you feel that the election would most likely happen no matter what. WHITE: Off the top of my head, I would suggest that it would. DEWOLF: What are the implications later on if we leave the boundaries exactly as proposed and the measure passes, and later on a lawsuit is filed to remove all or some of these resource lands and maybe a road district or something? If, in fact, all those lands are removed, there are tax ramifications, especially if a road district succeeded in proving there is no benefit. I realize there is not a lot of tax implications for resource lands, maybe 5% total. What implications are there to the new city if someone asks to and is allowed to withdraw? Minutes of Board of Commissioners' Meeting Page 3 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 WHITE: If an individual property owner wants his or her property to be withdrawn, the options for doing that are pretty limited. DEWOLF: In other words, they aren't going to do an injunction before, and they can't easily change anything afterwards. WHITE: This is the benefits question, and they could appeal to LUBA on the goals issue, although I don't think there is a lot of traction there. Based upon what I've seen in the past, there is not a lot of merit to the argument that this doesn't comply with the goals. If LUBA - who has a faster time frame than the state courts do - determined that the order was deficient somehow, and that happened before the election, then there might be an argument that the election might be prevented somehow. It might give them a basis for going in and getting an injunction to stop the vote. But I am really speculating, as it is a novel situation. S WEARINGEN: Our staff mentioned earlier that it didn't make sense to include the resource lands. What is your take on including these resource lands? WHITE: From a planning standpoint, I can't really say. From the legal standpoint, the Board has a lot of discretion on how it defines what a benefit is. You can take a narrow or broad viewpoint. I sense a difference between Commissioners Swearingen and DeWolf and how you're looking at this issue. This question is more political than it is legal, since the statute asks you to excise your judgment as to what the benefits are. I can't give you a strict definition of benefit, as you have to exercise your collective judgment; and ORS has not given a strict definition. LUKE: I go along with Mr. Sullivan's reasoning, and think he makes some very good points. They have had a lot of local input on this and a lot of local hearings on whether the resource land should be included within the city boundary, and the citizens of the La Pine area will make the call. Minutes of Board of Commissioners' Meeting Page 4 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 We are not like California in any way, but if you go to San Jose, you are fifteen miles outside of town and you are in the city limits, even though there is nothing out there but resource lands if you can call it that. There used to be resource lands within the city limits of Bend, and if you just past 8t' Street you will still find cows there. I don't think it hurts the city to keep those properties in. I move that the legal boundaries stay as proposed. DEWOLF: I have a question to ask before I second that motion. (Speaking to the proponents) What do you want to do? WHITE: You can't ask them this question at this time, as there can be no further testimony. Based on their submittal, it was clear to me that they still favor the whole thing. LUKE: Madame Chair, could we have a short recess? SWEARINGEN: Called for a five-minute recess. S WEARINGEN: Reconvened the meeting. DEWOLF: I cannot second Commissioner Luke's motion. Instead, I move we approve the boundaries as proposed with the following exceptions. The two resource lands owned by Young and Harrison, as well as that resource land belonging to the Barfshofskys, which is forest -zoned property, are to be pulled from the proposed boundary. Their access is all off of county roads and not off city roads, and that is my justification for pulling out those three pieces of resource land. So my motion is to pull out those three pieces of resource land. LUKE: Then you would agree with Ms. Craven on her assessment that they are not benefited by the incorporation. DEWOLF: Yes. S WEARINGEN: Could someone indicate these properties on the map so we know exactly where they are? Minutes of Board of Commissioners' Meeting Page 5 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 we) 114a We know the legal descriptions of these properties. WHITE: There was a map included in the proponents' submittal showing the properties. S WEARINGEN: I suggest we take a brief recess to be able to have staff properly determine the location on the exiting maps the parcels being discussed. Bruce White and Kevin Harrison, Community Development, presented the map previously submitted, showing the parcels being discussed. Jill Phillips -McClain pointed out on the map the location of the properties. She indicated there is an undeveloped RR -10 piece owned by Harrison that was originally noted as EFU, but it is actually zoned RR -10, which does need to be included. A general discussion ensued regarding the location of the parcels on the map. SWEARINGEN: Reconvened the meeting. WHITE: We found that the map submitted by the proponents, setting up the EFU land that they would propose to exclude, is correct, and it does not include the RR -10 land we are discussing. The map the proponents submitted showing the exclusions is correct. Regarding the Barshofsky property, they live at 52375 Dorrance Meadow Road; and it can be legally identified by ownership. DEWOLF: I move that we accept the boundary as proposed, with the exception of the two EFU zoned resource properties owned by Harrison and Young as well as the Barshofsky's forest -zoned land, subject to identifying the specific boundaries of these parcels as generally highlighted on the map. WHITE: There is a reliable basis for determining what the Barshofsky property is. So you are determining that these properties are somehow different from some of the others that you are deciding to leave in. S WEARINGEN: I second. Minutes of Board of Commissioners' Meeting Page 6 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 WHITE: I assume that there was something in Mr. Sullivan's submittal that is providing a basis for distinguishing between these properties. DEWOLF: We've got two letters, and they disagree with each other. One is from Nancy Craven and one is from Ed Sullivan. As you've said, the definition of benefit is fairly discretionary. To me there are concrete benefits and less tangible benefits to the incorporation of any area. A sewer line is a direct, tangible benefit; this one is easy to determine. But if an area receives more gas tax, liquor tax, and cigarette tax funds; or access to grant funds, and a general improvement of the community, there is a less tangible benefit. The line is really fuzzy in my mind. I think the biggest benefit that has been promoted is a certain level of improvement to roads. It doesn't mean paving all the roads, but a general improvement in the way that the roads are taken care of. These three particular pieces of property do not have access off city roads; their access is specifically off county -owned roads. To me this is the most tangible benefit, and that's where I'm able to exclude those. SWEARINGEN: There will not be sewer or water available to these parcels, since they are not legally able to receive them. WHITE: How do you distinguish between other properties that don't have those services available to them? DEWOLF: These are the only resource lands that do not access specifically on what would become city roads. All of the others have access through city roads, not county - owned roads, to my knowledge. They would have that higher level of service. This is in my opinion, based on what I have learned from the information contained in this record. I want the proponents of this concept to be making the call as to identifying those properties that empty out onto county roads and onto not city roads; so I am basing this on the research they have done. LUKE: This motion only includes what the boundaries should be, and not whether it goes on the ballot. Minutes of Board of Commissioners' Meeting Page 7 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 S WEARINGEN: No, it should include that as well. LUKE: I don't see why it all has to be one motion. WHITE: The ultimate question is to refer it to the ballot with the specific boundary identified. I think it is all part of one decision. DEWOLF: What is the big deal about making it two separate issues to vote on? Let's do the boundary and get that out of the way. WHITE: I think it is all tied up in one decision. When we write it up, it will be with respect to findings with respect to a certain boundary, and it has to be addressed in one document. LUKE: Trust me. We are going to do the boundaries first, and then we'll do a motion to send this to an election with those boundaries. DEWOLF: Particularly since we have a motion and a second on the boundaries already. WHITE: What we have is a motion to amend the boundaries to reflect what Commissioner DeWolf has suggested we exclude. LUKE: My problem with excluding some properties is once you start, where do you quit? There were some compelling arguments from people in the community about being excluded. This is a community. To have those lands under the jurisdiction of the County inside the city limits does not make a lot of sense to me, especially since the County doesn't own them. I will be voting no, as I believe there are benefits provided to all of the people in the area you suggest be left out. But I will be voting for the motion to have the incorporation measure on the ballot. Minutes of Board of Commissioners' Meeting Page 8 of 9 Pages Decision on Boundary of La Pine Incorporation Issue Thursday, June 29, 2000 SWEARINGEN I could argue that all the resource lands should be taken out, but I think this is a compromise that I can live with. VOTE: LUKE: No. DEWOLF: Yes. SWEARINGEN: Chair votes aye. LUKE: I move that we send to the ballot the vote on incorporation for the proposed City of La Pine with the boundaries as amended DEWOLF: Second. VOTE: LUKE: Aye. DEWOLF: Yes. SWEARINGEN: Chair votes aye. Chair Linda Swearingen adjourned the meeting at 1: 40 p. in. Dated this 29th Day of June 2000 for the Deschutes County Board of Commissioners. ATTEST: Minutes of Board of Commissioners' Meeting Decision on Boundary of La Pine Incorporation Issue inda L , Chair De'ffnis R. Luke, Commissioner TomeWolf, Com'Wrissioner Page 9 of 9 Pages Thursday, June 29, 2000