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2004-1472-Minutes for Meeting November 30,2004 Recorded 12/29/2004DESCHUTES COUNTY OFFICIAL RECORDS CJ 1004.i4� NANCY BLANKENSHIP, COUNTY CLERK 1 COMMISSIONERS' JOURNAL 12/29/2004 03;01;15 PM 11111111111111111111111111111 2004-3472 DESCHUTES COUNTY CLERK CERTIFICATE PAGE V 4,L . This page must be included if document is re-recorded. Do Not remove from original document. �J�ES &U { Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, NOVEMBER 30, 2004 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend The purpose of the hearing was to discuss the ramifications of the passage of Measure 37, and how the County should proceed in addressing potential claims under Measure 37. Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly. Also present were Mark Pilliod and Laurie Craghead, Legal Counsel; Kevin Harrison, Tom Anderson and Catherine Morrow, Community Development; Anna Johnson, Commissioners' Officer; media representatives Chris Barker of the Bulletin, and Barney Lerten of bend. com and The Bugle; and ten other citizens. Chair Daly opened the meeting at 9:00 a.m. Tom Anderson presented the options that have been developed. He explained that the Measure says that claimants are not obligated to follow the process. One consideration is for the County to do everything it can to encourage people to follow the process so that there is as much information as possible available to work with. The Code will provide the County with details on the process, but some people may feel it is difficult to follow. They shouldn't find the process intimidating. He said he will prepare a handout that presents the claim process in a straightforward manner. Although people are not obligated to follow the process, this will help the County to review claims in a more expeditious manner. Commissioner Luke said that maybe the handout should list what the County is asking for and explain why it is needed. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 1 of 13 Pages Mr. Anderson stated that in regard to the Code itself, since there is no obligation for people to follow the process, there is no leverage for enforcement. One consideration is a policy rather than formal Code language, in an effort to recognize that people aren't obligated to follow the process and there is no obligation or ability to enforce it. The implementation of Measure 37 could be done slightly more informally. This is something that could be prepared for the Board's consideration. Commissioner Luke acknowledged that it is a strange new law, which says you can set up a procedure but no one has to follow it. Instead of filling out an application and filing a claim, a person can go directly to Circuit Court. Circuit Court then has a hearing before a judge to determine if it is valid. But they will likely ask for the same information the County needs. Mark Pilliod agreed. Regardless of the extent of the details that the County asks for or receives when there is an application, in order to establish a claim in court the same level of detail will be required. In other words, a person would need to show that he or she is the owner of a property, and that it was purchased before regulations went into effect, and all of the other components of the claim. The County is asking that in order to give the opportunity for the County to respond, the same detail that would be required in court be furnished so a reasonable judgment can be made before the person goes to court. A draft Code has been written in Code format, partly because there is so little clarity in the statute. The County is trying to fill in some of the gaps on the assumption that in January the Legislature may choose not to provide cities and counties with the necessary clarity. Other counties have chosen to adopt something short of Code; they have adopted a policy under which to evaluate claims. The same components would be needed for evaluation in any case. The same questions will need to be answered. Mr. Pilliod asked the Commissioners for direction as to whether they would prefer an ordinance and, if so, what components are needed; i.e. the fee amount, whether it would be deposited when a claim is submitted, whether it is refundable, and so on. All of those items are a guess on the part of staff at this point. Tom Anderson said he sent out a memo to the Board on November 22, in part to have the Board give some thought to whether this should be a part of Code or a policy. Another aspect is that when the Board considers provisions in the Code, these provisions could have a considerable effect on the volume of claims the County may receive. There could be a significant impact on staff time reviewing Measure 37 claims and their ability to turn around regular applications. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 2 of 13 Pages Also, another consideration is the cost involved in processing the claims. Code provides for a nominal fee of $200. The County wants people to participate, but the costs will have to be absorbed unless the legislature makes the process mandatory. If that happens, the County can recapture the cost of handling claims and will have some leverage to make sure people follow the rules. Until the additional costs can be recaptured, this will impact the ability of staff to handle the rest of their work. Staff can advise on the history of the law, but anything more than that would be providing legal advice, which staff cannot do. Commissioner Daly said that early in the process people may want basic information. There must be a way to sort out the ones who don't have a chance of falling under this new law. He asked if they could tell people if zoning doesn't allow it, for instance. Mr. Anderson said that if the information is factual, there's no problem telling them. But if it is a matter of judgment or subjectivity as to whether they are eligible, the County can't advise them. He says his department is also preparing a web page with the legislative history of land use in hopes of avoiding some of those types of questions. Commissioner Luke stated that there has been a lot of discussion on the impacts of Measure 37. Some people need to know right away. The applicant only gets one chance to apply. But there could be a variety of reasons why someone can't use his or her property outside of Measure 37 aspects. Mark Pilliod pointed out that the County would be facing claims for compensation for reduction in value, plus costs and attorney fees, if the County doesn't prevail in Circuit Court. Some people will be looking for claims for real dollars. If the process is set up in such a way that the County finds itself in a series of claims — for instance in regard to separate ownership interests — the County needs to be concerned about processing serial claims for the same property. As a stopgap way to limit claims on a single property, it is critical that the County learn as much as it can about the owners' desire to develop the property. The array of regulations that come into play may differ; this depends on the objective. A single-family residence may have a series of regulations under challenge, but this would be different if someone wants to put in a commercial use. It is important to have all of the regulations that are being subjected to challenge on the table at one time. This prevents someone from coming back and challenging each aspect separately. The purpose of the ordinance is to bring as much data as possible in at the beginning in hopes of preventing a series of challenges on the same property. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 3 of 13 Pages Commissioner DeWolf noted that if someone doesn't like the process, they are told they can to go to Circuit Court. But this is not necessarily making it easier on the citizen. Mr. Pilliod replied that it won't be easy on them in court, either, as they still have to establish the components. The law is so vaguely written that some judgment calls need to be made. What the County adopts now may need to be changed later if the Legislature makes a different call during session. Mr. Pilliod then went over some items to be addressed by the Board. He asked if the County should charge a fee or a deposit, and if so, how much and whether and under what circumstances it should be refundable. The City of Bend requires an initial deposit of $50, but then will run a billing based on the amount of staff time, and will then create a lien on the property for any unpaid amount. The County does not have the authority to create a lien, so collecting funds up front is a consideration. The City will periodically inform the owner how much it is costing, but the ultimate cost is unknown at the beginning. Commissioner Daly said that he doesn't like this concept, as there would be a lot of room for criticism. Commissioner Luke added that some will be simple, and some will be complex and cost a lot more to handle. Commissioner DeWolf argued that a property owner should not have to pay anything to have the right to do what should have been allowed anyway. Commissioner Luke said that Measure 37 gives people the opportunity to do something that the other laws had made illegal. But how would someone know you have the right. Commissioner DeWolf stated he could argue that as well. Commissioner Luke pointed out that Community Development runs on fees. The question then becomes why someone in La Pine should have to pay for an application for someone in Terrebonne. Commissioner Daly said that he would be more comfortable establishing a set fee. Mr. Anderson stated that there is a lot of history behind determining what other fees should be. But this issue has no history at all and there is no way to know what it will ultimately cost. A deposit would enable staff to begin building the history, and the applicant would be charged no more and no less than it would actually cost to review the claim. The department would not be padding the claim, as they will be efficient with the demands on staff time. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 4 of 13 Pages Kevin Harrison noted that he has been the voice of the department for a flat fee and for a fee that would not present a barrier to claimants. A reasonable fee of $50 has been mentioned. Without the benefit of historical information on the actual costs of processing a claim, this would be a way to start. When you create a deposit and billing process such as the one the City of Bend has established, you are asking the claimant to write a blank check. This does not encourage the concept of encouraging claimants to work with staff, since the claimants are already feeling they have been damaged by past law and don't trust government agencies. Mr. Anderson added that the department will need to know the costs anyway so they can be tracked. Mr. Harrison said that planners use a spreadsheet to keep track of the time they use on projects. Historical information will be gathered over the course of time. Mr. Anderson noted that consistency is important - they shouldn't charge a deposit for one claim and charge by the hour for another. There also is no guarantee under Measure 37 that payment will be made. The claimants do have an out, and that is to go to court. Commissioner DeWolf said that at $250 an hour for an attorney, going to court is not really an incentive. Mr. Anderson replied that they can file a claim without an attorney. If the County adopts an ordinance, that is then the applicant's choice. Mark Pilliod and Laurie Craghead agreed. Commissioner Luke stated that if they choose not to use the process, they still have 180 days to file a claim. Mr. Pilliod said that they can go to court at the end of the 180 days. The County will need to evaluate this in terms of notice or demand in order to minimize any damages claim. Mike Maier pointed out that if they prevail in court, they will still have to pay attorney fees and costs. Mr. Pilliod added that they may then get to use the property as they wanted, however. Commissioner Luke said that if the County adopts a procedure with a fee, John Doe could come in and say he doesn't like the process, and hand a sheet of paper to staff with information on it. Sometime during that 180 days staff will have to evaluate it. At the end of the 180 days the person could take it to court. But they could still have a legitimate claim against the County. Commissioner DeWolf asked if they have to work with the County first. Mr. Pilliod said they can go right to Circuit Court. The Measure isn't clear, but a demand of some kind needs to be made. The fact that they may not be following the process is not an impediment to them going to court. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 5 of 13 Pages Commissioner Daly asked if the County should set some policy on how to receive claims. Mr. Pilliod said that after a lawsuit is filed, the court may require the parties to sit down and work out a settlement. Commissioner Daly asked if it is mandatory for the claimant to come to the County first. Mr. Pilliod said it is not. He said he is at the point of recommending a fee instead of a deposit, but the Board needs to decide how much. Commissioner Daly stated that $500 seems to be justifiable. Commissioner Luke pointed out that there is a law in place that says that the funds from people paying for building permits need to be used for specific things without moving general fund dollars into the department. If the $500 isn't enough, then building fees would be subsidizing these claims under violation of state law. Mr. Anderson said that there is no way to know at this point what the cost will be. A flat fee is the way to go until this can be determined. Mr. Pilliod stated that in some procedures, a portion of the fee may be refundable. Commissioner Luke said that in the past the County has refunded fees in some cases. Mr. Pilliod asked if this language should be in the Code. Commissioner Daly expressed concern that if the County asks for $500 up front and it is found that they don't qualify, how then would the fee be handled. Mr. Pilliod said that he expects there would be a series of forms and information to there is a base level of information for individuals to use in determining if they qualify. Commissioner Luke added that typically staff meets with people and answer all the questions they can at that point without charge. Mr. Pilliod stated that until the uncertainties are worked out, the fewer staff involved the better. If someone thinks they understand and gives bad information, the employee could end up a witness in court. There is a delicate balance between providing information and undermining the County's defense in court. He added that the County also has an obligation to enforce something that falls under zoning ordinances. He said that what he is hearing is that there is not a great deal of support to insert a provision for a refund for a fee. Commissioner Daly stated that it depends on the scenario; if it only takes a quick conversation, maybe it should cost a specific amount. Commissioner Luke observed that each application takes staff research time. Commissioner DeWolf added that he would like to be sure the claimants are serious about it. He is willing to start with it being non-refundable. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 6 of 13 Pages Kevin Harrison explained that CDD staff won't make a determination whether the claimant is eligible for a refund. The way the procedure is structured, CDD staff creates a file, gets input from key departments (the Assessor, Clerk, Legal Counsel and maybe Risk Management), and ultimately will present it to the Board for a decision. All claims could ultimately end up before the Board. The $500 fee is used up a long time before then. The key role of staff is to give factual information so someone can determine if they should try to file a claim. If it is a zoning issue, copies of the ordinances can be provided. Staff cannot advise them as to whether they are eligible. Laurie Craghead stated that if someone is making an application for a waiver or for compensation, it is the County's choice as to whether to pay or to allow the waiver. Commissioner DeWolf said that the fee should be non-refundable. Commissioner Daly said he would like to explore the concept of pre -application counseling. Mark Pilliod stated that while it is not the County's intention to track every minute of each case, some analysis will need to be generated so the Board at some point will know what the costs are and whether the fee is sufficient. Commissioner DeWolf asked the other Commissioners whether they support the $500 fee and whether they feel it should be refundable. Commissioner Daly agreed with the $500 fee, but wanted more discussion on the refundable aspect. Commissioner Luke stated that $500 is a good place to start. During the next budget process the fee schedule will be set, and he supports having the fee be non- refundable while the County is trying to determine what the actual costs are. Mr. Pilliod then asked to what extent the process should invite public comment beyond that of the applicant. The way the Code is drafted is similar to a type 2 process, where people are invited to provide written comments that would be considered by the Board. He asked if the Board wants more or less public input. Tom Anderson said that this is one aspect that could increase overall costs. His recommendation is to defer to Code, as this is not a land use process and public comments would not necessarily have the same impact. Commissioner DeWolf said that if someone makes a Measure 37 claim for a particular use of his or her land, the decision of the County is to either pay or allow the use. Ms. Craghead stated that Measure 37 says it is not a land use decision. It is possible that a permit could be issued with minimal public input. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 7 of 13 Pages Commissioner Luke asked how far out the mailings would be distributed. Mr. Anderson stated that Measure 37 does not require this type of notice. The Board can draft it anyway it wants — perhaps to just the adjoining properties, or out 150 to 200 feet. Commissioner DeWolf said that he would like to receive public comment as the change could affect nearby properties also. Mr. Anderson stated that public comment could be requested to be submitted in writing, and people could give input at a regular public meeting. However, it is not a land use issue and there are no appeal rights. Mr. Pilliod recommended that people not comment at Board meetings. Commissioner Luke said that people can already give citizen input on anything that's not already on the agenda. Mr. Pilliod said that he wants to know what level of involvement the Board wants. Noticing twenty neighbors is more labor intensive than drawing a circle around a property and sending notice to them. If there are concerns about staff costs, it is simpler to limit the required notice to adjacent property owners. Mr. Harrison noted that it is not a scenario where there's a right or wrong answer. The Measure requires no notice at all. The more people notices, the more expensive it gets. It also becomes more complicated, with more chance for error. Commissioner Daly asked if the Board establishes a process that is not required by Measure 37, could this be a violation of the Measure. Mr. Pilliod said that the draft includes language that a procedural misstep won't be used to support a claim against the County. Whether it is an impediment if people don't receive notice isn't known. A person could show up at a meeting and make a claim. He observed that it appears the Board would like public input. He cautioned, however, that notice needs to be consistent. Commissioner DeWolf stated that if it isn't a land use decision, they won't have the set of criteria on which their argument is based. They could just simply dislike their neighbor. But something could also compromise the safety of neighborhood children. Mr. Pilliod said that they may challenge the facts or the ownership history. Commissioner Luke suggested that public notice be given to adjacent property owners within a certain distance. Commissioners Daly and DeWolf agreed. Mr. Anderson asked if the reference to Title 22 should be deleted. Commissioner DeWolf agreed it should. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 8 of 13 Pages Mr. Anderson said that he will set up a list on the CDD web site of pending Measure 37 claims. He added that they will answer questions, but when someone submits a claim they should pay the required fee. Having pre -application meetings is an unnecessary and potentially expensive process. Staff can answer factual questions but should not give the expectation that a formal meeting will be set up to cover questions that can be answered at the counter or over the web site. This adds to staff costs. Commissioner Luke stated that it should be handled like it is now, with basic information given upon request. Mr. Pilliod added that the question is whether people could come in to informally ask questions to help them decide whether to file a claim, or whether the Code should give them a right to schedule a formal interaction with staff prior to paying the fee. The Commissioners agreed that the way it is handled now is appropriate, with staff informally answering basic questions. This can be changed in the future if there is a problem. Mr. Pilliod then asked whether the Board wanted to conduct a public hearing when they are deliberating on a recommended action. Commissioner DeWolf said he didn't think they need to formalize this aspect. They can ask for public input. Since it is not a land use action, there will be no formal hearing but the Board can receive comments from the public if they want. Commissioner Luke stated that Board can still decide to have a hearing, but he wouldn't want something in the Code that mandates a hearing. If the Board decides to hold a hearing, the regular agenda for the Monday work session or Wednesday Board meeting could provide adequate notice. In regard to the reference in Title 22, Mr. Pilliod said that clarification needs to be made because even without Title 22, there could be additional sections in the Code that are mirror images of Title 22. Mr. Pilliod stated that a question came up as to whether the Board could or should receive ex parte contact from potential or actual claimants, either before or after filing, or from property owners living nearby. Under strict land use procedure, the Board is the ultimate decision -maker and has to follow Code provisions regarding the substance of ex parte contact. The procedures don't specify at this point whether the Board would want the same rule in place. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 9 of 13 Pages Commissioner Luke stated that some people believe this is not a land use issue. So then it ends up being legislative or judicial. Mr. Pilliod said that it could perhaps be quasi-judicial. The question is whether the Board's judgement could be compromised. Commissioner DeWolf stated that it could be stated in the ordinance that all written documents should go to CDD, and then come to the Board at the time of the decision. Mr. Pilliod said that it can be written that if the Commissioners receive informal verbal comments, the Commissioners have to announce that as ex parte communication before deliberations begin. Commissioner DeWolf agreed; people may come directly to the Commissioners because they think it will make a difference, and he doesn't want that false impression to be made. Commissioner Luke explained there should be a central clearinghouse. If someone files but there is no follow-through, then nothing is centralized. If they are in Circuit Court the Commissioners cannot talk with them. If the applicant doesn't follow the process, he asked if the contact still declared as ex parte. Mr. Pilliod stated that if the Commissioners are expected to deliberate as to whether to pay or waive, all members of the Board should have the benefit of any communications received. If a person is determined to go to Circuit Court and not engage in the County process, the Board should treat it as it would a tort claim. Commissioner Luke said that a violation of the County's process does not invalidate the claim. Neither should an ex parte contact. He said he would like all claims to go through CDD so they can be tracked. Mr. Pilliod explained that Measure 37 is not clear whether the time clock can be delayed after the 180 days, but he feels the County should be in a position to tell a person whether they have submitted all of the necessary information. There is a completeness review. Mr. Anderson said that there is a broad level and a narrow level. Staff does not want to set itself up for a misstep if it takes longer than anticipated. Most cases could be addressed within five days, but more time might be required. It would be helpful to have an additional step, a mandate in case the claimant does not follow the process. Claimants would be advised up front what the County needs and why. If in the end they omit information anyway, the County will send a letter of what is missing. It is thought that until the Legislature makes following the local process mandatory, it could add to the cost. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 10 of 13 Pages Commissioner Luke asked whether the section about advising them about completeness should be taken out. Mr. Anderson replied that it should, until such time as the Legislature says the process is to be followed. Commissioner DeWolf stated that the only people the County will be dealing with are those people who want to go through the process. The others might hire a lawyer and go to court. This needs to be treated as a partnership. If you don't get complete information and they refused to provide it, they may as well go to court. It seems that requiring this information helps to make a reasonable claim. Mr. Anderson noted that the County doesn't want to obligate itself to a bunch of procedures, but in practice will work with the claimant towards completion. If they want to cooperate, the question is how much farther should the County go. Commissioner DeWolf said that the courts will require them to provide the information, including an appraisal. Mr. Pilliod stated that he will remove the portion regarding a completeness review step. The group then discussed the time allowed to apply. Mr. Pilliod said the Measure suggests two years. The local government can either waive regulations or pay. If it waives regulations, the claimant can't then go to court and ask for compensation. An individual could make this argument to the state. Mr. Pilliod then asked the Board if the County issues a waiver, does that waiver go with the land when it is sold. Some jurisdictions say it shouldn't. Commissioner Daly stated that those jurisdictions seem to be going against the intent of Measure 37. For instance, what if a person doesn't have the money to do what the waiver would allow. The land becomes more valuable but the person doesn't have the funds to enact the changes. Mr. Pilliod said that if the County chooses to make the waiver, the person obtains what the Code refers to as a non -conforming use. It is believed that is the intent of the Measure. Commissioner Daly noted that if the house burns down, they can't rebuild in all cases. Mr. Pilliod agreed that it would be difficult to get financing to rebuild if there is a non -conforming use. Commissioner Daly pointed out that a deal is a deal. Commissioner DeWolf said they shouldn't be able to sell it to someone and take advantage of it. They should build and then sell. Mr. Pilliod sad the Measure is unclear on this aspect. The drafter of Measure 37 intended that it be a non -conforming use status. Commissioner Luke said the waiver should go to the property owner, not the property. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 11 of 13 Pages Commissioner DeWolf stated that on the other side of this issue, if the authority to use the property should have been allowed thirty years ago, why can't the buyer have the same ability. Both sides are right. Commissioner Daly indicated that property rights are property rights. If the County waives a regulation, the property should be handled as it would have been thirty years ago. The County can't restrict it to just the one owner. Mr. Anderson stated that if it involves resource lands, the State may weigh in on it. He will be encouraging claimants who file with the County to also file with the State in the hope that clarification will come regarding who is ultimately responsible for the waiver. Mr. Pilliod said that he expects an answer to this question will come from the Legislature or the courts. In the meantime, there may be convoluted property transactions occurring so that people can overcome uncertainties in ownership. It was determined that due to the time constraints and the complicated nature of the issue, an ordinance would be the best way to proceed. It can be changed in the future as necessary. At this time Chair Daly asked if anyone in the audience wished to speak. Ton Aceti testified. He said that he is a little confused about this not being a land use decision or regulation. The overpass built at his property required a land use decision. It devalued his property because of the present zoning. Mr. Pilliod stated that this situation is not covered by Measure 37, as it is not a land use regulation. Mr. Aceti said that Liz Fancher told the Bulletin Newspaper that if he wants to rezone the land and was denied, he falls into a category of the land use decision limiting or devaluing his land. Mr. Pilliod noted that what Ms. Fancher was referring to were people who have never applied for a land use approval. Commissioner Luke said that if he couldn't make it commercial land when he bought it, it doesn't apply. Mr. Pilliod explained that Liz Fancher made the point that to allow a person to submit a valid Measure 37 claim, that person needs to show that a regulation put into place after the acquisition of the property has been enforced against that person. The only way to show this was to apply and be turned down. It is uncertain as to whether they would have to show they were turned down. This is something the courts may ultimately have to decide. Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 12 of 13 Pages Mr. Aceti said that if he had the ability to rezone, it could be a higher and better use. Commissioner Luke pointed out that it doesn't address a higher or better use or proper zoning. It asks what the zoning was when you bought it. Mr. Aceti stated that the overpass devalued his property as farmland, and it is a government taking to deny a process to rezone it. He asked if he could make a claim under Measure 37. He will work on this issue. James Prete then testified. He and his wife own a twenty -acre parcel in the Sisters area. They tried to build a non-farm dwelling previously and were turned down. At this point the $80,000 limit for a non-farm dwelling would make it difficult to build a residence. They bought the land in 1990 and the law went into effect in 1993. Mr. Pilliod stated that this type of issue is what the law was intended to address. He encouraged the Pretes to talk with Community Development about filing a claim. Being no further testimony or discussion, the hearing adjourned at 11:25 a.m. DATED this 30th Day of November 2004 for the Deschutes County Board of Commissioners. ATTEST: 6_57u"_ ll QA__ Recording Secretary Z91,_.1_eZ11111Z CC494!2=4 14"'le 'I, M1c ael 94.'Pbal y, C air Minutes of Deliberations regarding Handling Measure 37 Claims November 30, 2004 Page 13 of 13 Pages