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2005-934-Minutes for Meeting July 13,2005 Recorded 7/21/2005DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL 2005-934 CLERKDS CJ 2OVV-934 07/21/2005 02:18:06 PM DESCHUTES COUNTY CLERK CERTIFICATE PAGE F c, (-1 C., 6? Z -J, Q { This page must be included if document is re-recorded. Do Not remove from original document. , 1 E S C7 G 4u C 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 MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JULY 13, 2005 Commissioners' Hearing Room - Administration Building 1300 NW Wall St.., Bend Present were Commissioners Tom De Wolf, Michael M. Daly and Dennis R. Luke. Also present were Mike Maier, County Administrator; Becky Wanless, Parole & Probation; Tom Anderson, Catherine Morrow, Tom Anderson and Cathy White, Community Development; Anna Johnson, Commissioners' Office; Mark Pilliod, Larry Shaw and Laurie Craghead, Legal Counsel; media representatives Chris Barker of the Bulletin and Barney Lerten of News Channel 21; and approximately thirty other citizens. Chair De Wolf opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. Commissioner Luke acknowledged a couple in the audience that had been married for fifty years - George and Mina Cook. 2. Before the Board was the Reading of a Proclamation, Declaring July 17 through 23 National Probation, Parole and Community Supervision Week in Deschutes County. Becky Wanless stated that this proclamation recognizes the work done by those individuals who handle parole, probation and supervision services in the law enforcement field. She then read the Proclamation to the audience. LUKE: Move approval. DALY: Second. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 1 of 16 Pages VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 3. Before the Board was a Presentation and Consideration of Signature of Resolution No. 2005-096, Adopting of the Deschutes County Community Corrections Plan for 2005-07. Becky Wanless gave an overview of the Plan, which is required by the Oregon Department of Corrections, and describes the work the Parole and Probation Department will be doing for the next two years, and how funds will be spent. It was endorsed by the Local Public Safety Coordinating Council on July 11. She then gave a brief overview of the work her department does, the caseload handled by her officers and the other services provided by the Department. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 4. Before the Board was Consideration of Signature of Document No. 2005- 194, an Intergovernmental Agreement between Deschutes County and the City of Bend Police Department regarding the Use of the Sheriffs Office Communications System. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 2 of 16 Pages 5. Before the Board was Consideration of Signature of Document No. 2005- 195, an Intergovernmental Agreement between Deschutes County and the City of Bend Public Works Department regarding the Use of the Sheriff's Office Communications System. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 6. Before the Board was Consideration of Signature of a Letter Appointing Tom Moore to the Board of Directors of COCAAN (Central Oregon Community Action Agency Network), through December 31, 2007. DALY: Move approval. LUKE: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 7. Before the Board was Consideration of Signature of Letters Reappointing Brance Davidson (through December 31, 2007) and Appointing Pam Stendal (through December 31, 2006) to the Board of Beaver Estates Special Road District. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 8. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-059, Approving the Braaten Annexation into Oregon Water Wonderland Unit II Sanitary District. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 3 of 16 Pages Laurie Craghead gave an overview of the item. The Department of Revenue has approved the legal description, and it is ready for Board approval after the public hearing is held. No negative comments have been submitted. Chair DeWolf opened the public hearing. Being no testimony offered, he closed the public hearing. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 9. Before the Board was a Public Hearing on a Goal 3 Exception and Proposal to Change the Zoning of Two Adjacent Surface Mining Sites (off Johnson Road/Tumalo Reservoir Road - Applicant: Coats). Cathy White provided some brief details on the reasons for the hearing. Chair DeWolf then read the opening statement to the audience. (A copy is attached as Exhibit B.) In regard to ex parte contacts, bias or conflicts of interest, Commissioner Luke stated that he has had no ex parte contacts, but anyone in the local construction field would have had some contact with the Coats family at some point. He added that he has no bias. Commissioner Daly concurred; as did Chair DeWolf. No challenges from the audience were offered. Ms. White stated that entire file was next to her for the Board to reference as desired. She also referred to oversized maps of the area. She said that lot 100 is completely surface mining zoned, and lot 1600 is partially zoned surface mining. The Coats family is represented by Liz Fancher, their attorney. The applicant is requesting a zone change to surface mining from the MUA zone. A plan change is also required, as is an exception to Goal 3. No written comments were received after the public notice were received. The Hearings Officer held a public hearing, with one citizen testifying who was concerned about potential development of the property. He was advised that any subsequent changes to allow development requires a separate land use action. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 4 of 16 Pages The Hearings Officer found that a portion of the lot was not subject to Goal 3 criteria. Tax lot 100 does require a Goal exception, but she said it justified receiving an exception to Goal 3. She also said it meets the requirements for a plan amendment and zone change. Two by-products of this change would be the surface mining combing zone overlay that extends a half-mile out from the zone, and that surface mining sites would need to be removed from the surface mining section of the Comprehensive Plan. It is recommended by staff that the Board approve the Goal exception and zone change after hearing any public testimony. If the Board approves the change, a date certain would need to be established for the Board to consider adoption of an ordinance; it is suggested that August 3 be the date set aside for this purpose. The DOGAMI submitted a letter into the record that the property has been completely reclaimed at this point. Chair De Wolf opened the public hearing. Liz Fancher stated that there are two legal lots of record, which are addressed separately. Tax lot 700 on the map, the north parcel, includes a section that adjoins the Tumalo Rim subdivision. The rezone of this property will make it consistent with the adjacent property. It was surface mined but not as extensively as the other property. (She referred to the oversized maps at this time.) Tax lot 100 to the south was intensely mined except the southern portion. The soils expert found that the property on the north is class 7 and 8 soil types, and does not meet the definition for agricultural land. The Hearings Officer agreed that this land is not suitable for agricultural use, and meets the criteria for a Goal exception. A range management consultant was hired to study the property, and determined that the property to the south, with class 6 soils, produces little forage. It is poor since it was mined in the past, and not enough forage is produced for agricultural use. The Tumalo Rim subdivision adjoins the Coats property. The property on the east side was approved for a church, and another side is MUA-10. The property is adjacent to a portion of Tumalo State Park but is undeveloped. There are no water rights on the properties, and it is not feasible to serve it through the irrigation district. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 5 of 16 Pages The property to the south that is zoned EFU has a small horse operation, and they irrigate with well water. The Coats property sits on a plateau, and is basically on its own. Ms. Fancher stated that the range management consultant said that it could be feasible for cattle grazing, but the value of leasing it would be much less than the cost of fencing it for that use. Water would have to be brought in as well. Commissioner Luke said he read through the Hearings Officer's report and feels the information was thoroughly explained. Being no further testimony offered, Chair De Wolf closed the public hearing. An ordinance will be drafted by the applicant's attorney in conjunction with County Legal staff, and will be presented at the August 3 meeting; a public hearing will be held at that time on the ordinance. 10. Before the Board was a Public Hearing, and Consideration of Signature of Order No. 2005-043 (Hellmuth), regarding a Claim for Compensation under Measure 37. Mark Pilliod recommended the Board Chair read the statement to cover all of the Measure 37 hearings. Chair DeWolf then read the statement, which applied to all of the Measure 37 hearings addressed at this time. (A copy is attached as Exhibit C.) No challenges were offered by the public. Catherine Morrow explained that this hearing was continued from June 8, and then briefly summarized the details of the claim. The claimant feels there is a loss of value since he cannot build a boat slip. However, flood plain regulations are exempt under the rules of Measure 37, as it is considered a health and safety issue. Mark Pilliod advises that this could be a health and safety issue, but the Board could ultimately make that determination. Catherine Morrow said that federal insurance regulations cover structures being placed within a flood plain. County regulations regarding flood plains are in place on this property, as are soil fill and removal regulations. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 6 of 16 Pages Commissioner Daly stated that he is trying to understand the health and safety threat if a boat dock were built. Ms. Morrow stated that flood plain regulations in County Code would apply, and they tie into the federal insurance regulations in regard to flood plains. The claimant's thought is that the flood claim regulations have reduced the value of the property. Mark Pilliod stated that a decision has to be made this week due to a time deadline. Commissioner Daly again questioned why this would be a health and safety problem. Commissioner Luke stated that it is wetlands, and strict regulations cover the use of wetlands areas. Ms. Morrow said that having the boat ramp is a code enforcement issue, and the claimant has not applied for a conditional use permit. She said that Measure 37 does not cover issues relating to pollution control, health, safety, flood plain and other regulations established at a local level. Commissioner Daly asked if these regulations were in place before the property was purchased. Ms. Morrow stated that these regulations are exempt under Measure 37 so it does not matter in this case when they went into effect. Commissioner Daly stated that he does not feel this is a structure such as a house. Mark Pilliod said that the claimant's own information does indicate that a boat or boat house is considered a structure. However, there could be a disagreement as to whether a health and safety problem would result from the installation of a boat dock and slip. Chair De Wolf opened the public hearing. At this time the claimant, Lee Hellmuth, presented information to the Board (a copy of which is attached as Exhibit D), and gave an overview of his claim. He bought the property in 1970. He owns three lots, one of which has a home on it; the property with the boat ramp does not have a dwelling on it. He said that there was a boat ramp and slip on the property when he bought it, and he has documentation showing this. He has worked with the Department of Fish and Wildlife on riparian projects, putting fish in the river and restoring stream banks. He has also worked with local fly fisher group, planted many trees, and cooperates with the Parks Department to address the problem of overgrown trees on Park land, which surrounds his property on three sides. Since there is only one road for ingress and egress, the boat ramp would serve as a secondary exit point in the event of an emergency. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 7 of 16 Pages He began improving the boat ramp and was advised by the County that the Code is complicated and to contact an attorney if he wished to continue the improvements. He applied for a permit to put the boat ramp in; however, about that time Measure 37 came into effect and the permit process was put on hold. He stated that the documents would have you believe it is a health and safety hazard, but he feels this doesn't apply to boat slips. There is no hazard to health and safety; the only concern is having the dock come loose in a flood and become a hazard. There is nothing in the flood plain zone that states this, however. He is asking that he be afforded his rights to use the property as it was when he purchased it. He then referred to the handout he provided and summarized the information. Chair DeWolf asked that because of the number of questions raised today by claimant, would the claimant agree to an extension of the time frame to address this claim. He would like to have the opportunity to more thoroughly review the ordinance referenced by the claimant and would like to be able to make sense of the statements made by the claimant. If forced to make a decision at this time, he would rely on the recommendation of staff and Legal Counsel and support what they indicate. He said that he feels this is not appropriate for a Measure 37 claim; instead it deals with a health and safety issue that is not covered by Measure 37. Commissioner Daly said that some good points have been brought up, and he also wants to be able to review this issue further. Catherine Morrow clarified that the County does require a permit for putting any fill in riparian areas. Mr. Hellmuth said that the he has been instructed by the Department of State Lands and the Army Corps of Engineers to put soil back in the slip, and he needs a decision soon. Those organizations don't require a permit but the County does. The DSL is requiring a portion to be filled in. Mark Pilliod stated that there is a process to cover non-conforming uses, which has not yet been pursued. Commissioner Luke said that he would follow staff s recommendation unless he has adequate time to review the additional information. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 8 of 16 Pages Mr. Hellmuth showed the Commissioners some photos of the property, including historical photos from when the claimant purchased the property. Mr. Hellmuth said he would agree to a thirty-day extension, but does not want to pay for a permit at this time. There is a short window of opportunity when this work can be done. Commissioner Daly and Chair DeWolf suggested that a permit is needed in any case since a riparian area is involved. This item was continued to the July 27 Board meeting. 11. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-061 (Brown/Perry), regarding a Claim for Compensation under Measure 37. This issue was continued to the September 7, 2005 10 a. m. Board meeting. 12. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-040 (Kurtz), regarding a Claim for Compensation under Measure 37. Catherine Morrow gave an overview of the claim, and said that regulations in place in 1972 would be applied. Ed Fitch, representing the Kurtz's, agreed with the content of the order. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 13. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-041 (Wiehr), regarding a Claim for Compensation under Measure 37. Catherine Morrow provided a brief overview of the claim. The order would apply the regulations in effect on June 4, 1974. DALY: Move approval. LUKE: Second. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 9 of 16 Pages VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 14. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-054 (Nelson), regarding a Claim for Compensation under Measure 37. Mark Pilliod indicated that the claimant would like to continue this item until September 7. Chair De Wolf opened the hearing and continued the item to September 7. 15. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-053 (Ewalt), regarding a Claim for Compensation under Measure 37. Mark Pilliod indicated that the claimant would like to continue this item until September 7. Chair De Wolf opened the hearing and continued the item to September 7. 16. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-050 (Smith/Walker), regarding a Claim for Compensation under Measure 37. Mark Pilliod indicated that the claimant would like to continue this item until September 7. Chair De Wolf opened the hearing and continued the item to September 7. 17. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-052 (Malone), regarding a Claim for Compensation under Measure 37. Catherine Morrow gave an overview of the claim. The ownership of the property was established to be June 24, 1977 for Lumae Malone, and her husband Robert Malone on October 1, 1988. The order would apply the regulations in effect for Lumae Malone to 1977 and Robert Malone to 1988. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 10 of 16 Pages Ed Fitch, attorney for the Malones, stated that his clients concur with the recommendation regarding Lumae, but not the recommendation regarding Robert. They bought the property jointly in 1977 on a contract of sale which was recorded. Originally it was only deeded to Lumae. They have lived on the property since 1977, and they didn't want Robert on the deed for financial reasons. Mark Pilliod said he wasn't clear on the information provided to the County. Regarding title, the record shows the property was not deeded to Robert until 1988. Mr. Fitch stated that the contract of sale was from the owner to both of them. However, there was a provision in the contract that it would only be deeded to Lumae. When the deed finally came to Lumae, she promptly deeded it from herself to herself and her husband. The husband had signed the original contract of sale in 1977. Mr. Fitch indicated a two week extension of time would be appropriate. The item was continued to the July 27, 200510 a.m. Board meeting. 18. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-047 (Cook), regarding a Claim for Compensation under Measure 37. Catherine Morrow provided an overview of the claim. She said the Order has been changed to reflect a corrected legal description. Bob Lovlien, attorney for the claimant, had provided the correct information. The Board would elect not to apply the EFU zone and regulations, and would apply the regulations in effect in April 1970 when the Cooks acquired the property. Chair De Wolf opened the public hearing. Mr. Lovlien said there is no objection to the Order as amended. Being no further testimony offered, Chair DeWolf closed the public hearing. Commissioner Luke stated that he has known the Cooks for many years but this would not influence his vote. Commissioner Daly said he has known them for years as well, but this doesn't affect his vote either. LUKE: Move approval. DALY: Second. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 11 of 16 Pages VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 19. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2005-051 (Huckfeldt), regarding a Claim for Compensation under Measure 37. Catherine Morrow explained the nature of the claim. The claimant's attorney, Ed Fitch, said there is no objection to the Order as written. Commissioner Daly noted that he knows Mr. Huckfeldt personally, but this does not influence his vote. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 20. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District, in the Amount of $11,110.91. LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 21. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District, in the Amount of $5,914.11. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 12 of 16 Pages LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE REDMOND LIBRARY COUNTY SERVICE DISTRICT 22. Before the Board was Consideration of Signature of Resolution No. 2005- 097, Amending Resolution No. 2005-082, Levying Ad Valorem Taxes for the Fiscal Year 2005-06 Budget, and Making Appropriations. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 23. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County, in the Amount of $789,210.01. LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 24. Before the Board was Consideration of Approval of Economic Development Grants: • Cascade Festival of Music - $5,000 (DeWolf) • Sisters Folk Festival - $1,000 (DeWolf) • Bend Spay & Neuter Project - $4,000 ($2,000, Luke; $2,000 Daly) • Deschutes County Fair - Bus Program - $5,000 (Luke) Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 13 of 16 Pages LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 25. ADDITIONS TO THE AGENDA A. Before the Board was Consideration of Chair Signature of Document No. 2005-291, a Water Quality Cooperative Agreement with the Environmental Protection Agency regarding a Near Stream Groundwater Study. Catherine Morrow explained that the EPA has appropriated about $80,000 for this grant, the USGS is contributing $80,000 and the County contributes $30,000 towards this study. This grant will be used to coordinate the parameters of the study and the County would begin receiving funds in October 2005. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. B. Before the Board was Consideration of Approval of a Waiver of Certain Fees for a Property in La Pine. Catherine Morrow said that the Board had asked for time to review this document, requesting a waiver for fees relating to a septic feasibility permit. DALY: Move approval. LUKE: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 14 of 16 Pages C. Before the Board was Consideration of Approval of Accounts Payable Vouchers for the Week of July 18 Without the Signature of Two Commissioners. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Ken Mulenex presented plaques to Commissioners DeWolf and Luke to thank them for their support of La Pine Frontier Days. Commissioner Daly had already received his. Mr. Mulenex also introduced Gina Mann, a previous graduate of La Pine High School who received a scholarship from the Masonic Lodge and has just graduated from Lewis & Clark College with a degree in forensic science. Being no further items brought before the Board, Chair DeWolf adjourned the meeting at 11:55 a. m. DATED this 13th Day of July 2005 for the Deschutes County Board of Commissioners. Torti DeWolf, air ATTEST: Recording Secretary Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 15 of 16 Pages Dennis K. Luke, Commissioner Attachments Exhibit A: Sign-in sheet (1 page) Exhibit B: Opening statement regarding agenda item #9 (3 pages) Exhibit C: Opening statement regarding Measure 37 hearings (2 pages) Exhibit D: Documents provided by claimant Hellmuth (17 pages) Minutes of Board of Commissioners' Meeting Wednesday, July 13, 2005 Page 16 of 16 Pages H F~- s N N N c., L V O N ✓ ^ r 3 ~ O LL N M o M r a ~ M c as ~ o U) 0 D~ N D ~ IZ~ U ~ N ~ V a Q , t ~ C C ~ cc G N 0m) Z V ~ ~ Exhi bit Page 1 of 1 s f0 N U N 0) C O U N N w E m ca m a~ a PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 1. INTRODUCTION A. This is a de novo hearing on a proposed goal exception to the Statewide Planning Goal 3, Agricultural Lands; a plan amendment from Surface Mining to Rural Residential Exception Area; and a zone change from Surface Mining to Multiple Use Agricultural for an approximate 45-acre property located north of Bend. The County File Numbers are PA-04-4 and ZC-04-2. B. In those applications, the applicant requested an exception to Goal 3, a Plan Amendment to the Comprehensive Plan, and a zone change from Surface Mining to MUA-10 zone. C. These applications were previously considered by the Hearings Officer after a public hearing was held on February 1, 2005. Evidence and testimony were received at that hearing. The Hearings Officer recommended the Board approve the exception to Goal 3, plan amendment from Surface Mining to Rural Residential Exception Area, and zone change from Surface Mining to MUA-10. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are listed on pages 1-3 of the Hearings Officer's decision dated May 3, 2005 and are listed on the wall. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. Page 1 of 3-Chair's Opening Statement for Land Use Hearings File: PA-04-4/ZC-04-2 Date of Hearing: 07/13/05 Exhibit Page of D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Ill. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the proposal then the opponents will then be given a chance to testify and present evidence. 4. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. Page 2 of 3-Chair's Opening Statement for Land Use Hearings File: PA-044/ZC-04-2 Date of Hearing: 07/13/05 E hixE bt Page 2_ of 3 B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances The grant of a continuance or record extension shall be at the discretion of the Board. a. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing. b. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. V. PRE-HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex-parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex-parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) STAFF REPORT Page 3 of 3-Chair's Opening Statement for Land Use Hearings File: PA-04-4/ZC-04-2 Date of Hearing: 07/13/05 Exhibit jj Page of 3 Board of County Commissioners Measure 37 Hearing Process The Board of County Commissioners is now ready to open the hearing on a Claim brought against the County pursuant to Ballot Measure 37. The hearing before the Board is quasi judicial, but not a land use decision. This proceeding is the only hearing provided by the County under the County code provisions which implement Ballot Measure 37. The Board's decision will be based upon the material submitted to county staff and furnished to the Board. The County code provides that the claimant and those persons who have previously submitted written material to the County on this matter will be given an opportunity to offer testimony bearing on the claim. This hearing is not open for comments from members of the general public. The decision by the County on this matter will be memorialized in a Final Order. The Final Order will be mailed to all those participating in this proceeding. The Final Order will also be recorded in the Clerk's Office. The criteria for this decision involving a claim under Ballot Measure 37 is contained within Chapter 14.10 of the Code. The applicable criteria are as follows: 1. The Claimant is the owner of the subject property; and 2. The Claimant or a family member has owned the subject property continuously since before adoption or the effective date of a county land use regulation; 3. The County's land use regulation is not exempt from challenge under Ballot Measure 37; and 4. The County's land use regulation has caused a reduction in the value of Claimant's property. If the Board determines that the criteria for compensation payment pursuant to Ballot Measure 37 has been established, and the claim is eligible, it may by written order decide that the county's land use regulation be modified, not applied to the claimant's property, or it may elect to pay compensation based upon the reduction in value attributed to the subject regulation. The County's decision will not result in the issuance of a building permit, but will only allow the Claimant to apply for a permit without first complying with the challenged land use regulation. A Claimant must also comply with County Page 1 of 2 Exhibit Page of 04- regulations which were not challenged under Measure 37. Furthermore, the County's decision is not intended as having any effect on land use or other regulations adopted by other government entities, such as the State of Oregon or LCDC. Testimony, arguments and evidence must be directed toward the criteria described above, or other criteria, which the person believes to apply to the decision. Failure to raise an issue accompanied by statements or evidence sufficient to afford the Board and the parties an opportunity to respond to the issue, may preclude judicial review based on that issue. The order of presentation is as follows: 1. The County Administrator's report and recommendation. 2. Claimant's presentation. 3. Witnesses who oppose the Claimant's position. 4. Rebuttal by the Claimant. 5. If new information is presented by the Claimant, then rebuttal by the witness in opposition. Any person that is interested in this matter may challenge the qualification of any Commissioner to participate in the hearing and decision. Such challenge must state facts relied upon by the party to a Commissioner's bias, prejudgment, personal interest, or other facts from which the party has concluded that the Commissioner should not participate as they are not impartial. Such challenge must be made prior to the commencement of the public hearing, and will be incorporated into the record of this hearing. Does anyone wish to challenge any commissioner's ability to hear this matter? If so, please say so now? Hearing no challenges, I will proceed. Page I of 2 Exhibit r^. Page 2 of _ Date: July 11, 2005 To: Deschutes County Commissioners 1300 NW Wall St., Suite 200 Bend, Oregon 97701 From: Lee Hellmuth RE: Ballot Measure 37 Claim Number M37-05-8; Hellmuth This memo is in response to the Staff Report, posted on the Deschutes County web site on July 8, 2005. The Staff Report is composed of Order 2005-043 and a supporting Staff Report memo from Michael A. Maier, County Administrator dated July 6, 2005. 1 have requested relief from land use regulations, restrictions and fees placed on the use and maintenance of my boat ramp/slip that has been there over 40 years, as shown in attachment 3. Critique of the Staff Report Documents The County Administrator, Michael A. Maier, has recommended in Order No. 2005-043 that: my Measure 37 claim M37-05-8 should be denied. The reason for this denial is listed in the Order on page 1, item 3 where it states: The County Administrator has recommended that the claim is not claim eligible and that current flood plain regulation for the subject property at 54800 Forest Lane, Bend, Oregon continue to be enforced, because the flood plain regulations are for the protection of public health and safety. Mr. Maier explains why he makes the above recommendation in his Staff Report memo dated July 6, 2005. Mr. Maier argues that my claim should be denied because it falls under an exclusionary condition found in Subsection (3)(B) of Measure 37. He writes on page 3 of the Staff Report memo: (3) Subsection (1) (compensation) of this act shall not apply to land use regulations: Exhibit j~>_ Page of (8) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations. Mr. Maier lists one of the conditions in this Subsection (3) of Measure 37, however, there are 5 exclusionary conditions in this Subsection. These 5 conditions are specific and each one has a limited scope. A. Restrictions or prohibiting activities commonly and historically recognized as public nuisances under common law. B. Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations C. To the extent the land use regulation is required to comply with federal law D. Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing E. Enacted prior to the date of acquisition of the property by the owner Mr. Maier's Staff Report memo erroneously uses condition B above [Measure 37 Subsection (3)(B)] to justify his recommendation. Condition B is not related to restrictions placed on boat slips or ramps but is clearly concerned with fire and building codes, or with regulations on sanitation, solid and hazardous waste, and pollution control. Condition B is clear as to its intent and It is unfair and a misuse of Measure 37 to generalize this restriction to include an unrelated project. If Mr. Maier is allowed to expand the definition of condition B above, he could recommend a denial of almost any Measure 37 claim for any activity in any Deschutes County Code. Purposes of the Flood Plain Zone Regulations To support his claim that a boat ramp/slip would have a public health and safety aspect, Mr. Maier states in his Staff Report memo (page 3) that: DCC Chapter 18.96 contains the 1989 Flood Plain Zone regulations. DCC 18.96.010 states the purposes of these regulations: "To protect the public from the hazards associated with flood plains." z Exhibit Page __~2_ of k"1 He is correct that this is one of the stated purposes of the regulations. But this is only one of four purposes of the Flood Plain Zone as listed in DCC 18.96.010. The four purposes are listed as follows: 1. To implement the Comprehensive Plan Flooding Section 2. To protect the public from the hazards associated with flood plains 3. To conserve important riparian areas along rivers and streams for the maintenance of the fish and wildlife resources 4. To preserve significant scenic and natural resources while balancing the public interests with those of individual property owners in the designated areas Mr. Maier has failed to demonstrate or justify why a boat ramp on private property constitutes a hazard to the public. A boat ramp on private property does not fall under condition number 2 above, as it does not pose a hazard, and does not have any measurable adverse impact on public health or safety. On the contrary, a boat ramp has benefits for public safety as it may be used to facilitate emergency evacuations. The subject boat ramp is located in the riparian area on the bank of the Fall River. The purpose of the restrictions placed on a boat ramp in DCC 18.96.010 are listed under conditions number 3 and 4 above. It is conservation of important riparian areas along rivers and streams and preservation of scenic resources that prompts restrictions on boat ramps. In support of this position I cite certain pertinent sections of DCC 19.88 (10/2001) PROVISIONS APPLYING TO SPECIAL USE STANDARDS. 19.88.240. Fill and removal. Except as otherwise provided in DCC Title 19, no person shall fill or remove any material or remove any vegetation, regardless of the amount, within the bed and banks of any stream or river, or in any wetland, unless such fill or removal is approved as a conditional use in accordance with the following standards C. Fill or removal required for public park and recreation areas, natural and outdoor education areas, historic and scientific areas, wildlife refuges, public boat launching ramps, public docks and public walkways shall not be allowed as a conditional use unless the following findings are made: 3 Exhibit 17 Page 3 of 1-1 1. That all necessary state and federal permits will be obtained as a condition of approval of the conditional use permit. 2. That only the minimum removal of vegetation or material and dredging or excavation necessary for construction and maintenance will be done. 3. That the specific location of the site will require the minimum amount of disturbance to the natural environment, considering alternative locations in the area and methods of construction. 4. That such construction and maintenance is designed and done in such a manner as to minimize the adverse impact on the site. 5. That erosion will be adequately controlled during and after construction. 6. That the impacts on fish and wildlife habitat by the fill or removal will be minimized to the greatest extent practical. The Oregon Department of Fish and Wildlife will be requested to review and comment on the application. None of the above 6 conditions for DCC 19.88.240 have anything to do with hazards, that is the basis for Mr. Maier's recommendation for denial as he states on page 3 of his Staff Report memo: "To protect the public from the hazards associated with flood plains. " None of the above 6 conditions for DCC 19.88.240 have anything to do with public health and safety, which is the basis for Mr. Maier's recommendation for denial as he states on page 1 item 3 of Order No 2005- 043 dated 7-13-05: "the flood plain regulations are for the protection of public health and safety. " Mr. Maier has changed the intent of Measure 37 and its provisions. His attempt to use condition number 2 of DCC 18.96.010 to justify Subsection (3)(B) of Measure 37 is unfair, inappropriate, and incorrect. 4 Exhibit Page of -L Mr. Maier realizes that he is expanding beyond the examples listed in Measure 37 Subsection (3)(B) and states on page 3 of his Staff Report memo that: This exemption for public health and safety regulations is not limited to the examples listed in (3)(8). I agree that there are many more examples that could be listed under Subsection (3)(B) of Measure 37. However, the examples would be limited to codes and regulations that are associated with public health and safety, and would not include creation or maintenance of a boat ramp. Errors in Order No 2005-043 and in Mr. Maier's Staff Report Memo Mr. Maier has made critical mistakes in his Staff Report memo to the Board of County Commissioners; and in Order No 2005-043. The errors are listed below: • In the Staff Report memo to Board of County Commissioners dated July 6, 2005, page one: paragraph one and paragraph two are almost identical. • In the Staff Report memo to Board of County Commissioners dated July 6, 2005: The difference between paragraph 1 and paragraph 2 is that paragraph 1 states "asking at least two times that the Claimants furnish more evidence to complete or clarify the claim" while paragraph 2 states "asking that the Claimant furnish more evidence to complete or clarify the claim". The first paragraph is an error as I received only one letter that is included with this submission. I did respond to that letter and included a realtor's appraisal as requested. • In Order No 2005-043 page 2 Section2: The following statement in this section is not true: "Claimant may provide proof a preexisting boat ramp/slip as a nonconforming use or apply for a conditional use permit for the subject property consistent with flood plain regulations now in effect" s Exhibit D_ Page _ 5 of The truth is that a boat slip is prohibited in the Flood Plain as described in Flood Plain DCC 18.96.050. that states "Prohibited uses. Marinas, boat slips and boat houses on private property. (Ord. 89-009 § 5, 1989)" • In Order No 2005-043, page 1 of findings of facts and conclusions, Item 5 states: "The Board concurs with the Administrator's report that the current flood plain regulations for the subject property might allow a boat ramp/slip on this subject property only with a conditional use permit. " The above statement is not true. The truth is that a boat slip is prohibited in the Flood Plain as described in Flood Plain DCC 18.96.050 that states "Prohibited uses. Marinas, boat slips and boat houses on private property. (Ord. 89-009 § 5, 1989)" Mr. Meier is in a position to advise the County Commissioners and should know that the Deschutes County Codes DCC Flood Plain Chapter 18.96.050 prohibits the use of a boat slips. He should also know that DCC 18.96.040, under the Flood Plain Zone, allows conditional use of boat ramps. It is my position that Mr. Meier made another mistake when he recommends denial of my Measure 37 claim. Mr. Meier's misstatement of the County codes and facts brings into question his entire report. Evidence for a Reduction in Value of the Property Mr. Maier's Staff Report memo dated July 6, 2005 to the Board of County Commissioners correctly states: Reduction in Value - $20, 000 alleged on claim form The ordinance requires that the Claimant provide evidence of the amount of the claim in dollars based on the alleged reduction in the fair market value of the property resulting from the enforcement of the County's land use regulation Thus, there is some evidence of a reduction in value if a boat slip is not allowed. The above statement from Mr. Maier documents and supports the reduction in value due to County land use restrictions. 6 Exhibit- Page _ of PROPOSAL If the County Commissioners agree that Mr. Maier has erroneously proposed a denial of my Measure 37 M37-05-8 filing, then the County Commissioners may "modify, remove, or not apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property". I propose a compromise: The County Commissioners: • approve the existence of my boat ramp and waive any and all permits, costs or fees for continued outright use I will: • Withdraw my request for a boat slip on the subject property (In 1979 the boat slip portion was 22 feet long - photo available) • Remove my Measure 37 request to remove the County zones on the subject property • Work with Oregon State Parks to finish and maintain the boat ramp on the subject property keeping the environment as a priority (see the attached letter to the Commissioners dated July 2, 2005 where the last page describes my caretaker activities) Addendum: Should the County Commissioners accept the erroneous Staff Report memo from Mr. Maier, dated July 6, 2005 and agree to the erroneous Order No. 2005-043 dated 7-13-05, it is my plan to appeal this decision through the court system. This would allow the final decision on whether or not a boat ramp/slips is a hazard or a public health or safety issue to reside in the Courts. I am confident that the Court would see through the misuse of Measure 37 and not define a boat ramp/slip as a hazard to public health or safety. The Court would also determine if the intent of Measure 37 was to exclude all valid claims, which are in a flood plain. Exhibit Page _ I of 1-j I urge the Commissioners to carefully read and question the accuracy of the Staff Report memo from Mr. Maier and the Order No. 2005-043 as I have pointed out some of the flaws in each. I trust the County Commissioners will use common sense and use their authority to restore the unrestricted rights to the boat ramp that were in effect when the property was purchased 27 years ago. My family and I take this request to continue my unrestricted use of my boat ramp very seriously. Attachments: 1- photo of boat ramp/slip taken 1979 2- photo of boat ramp taken 2003 3- e-mail stating boat ramp/slip existed in early 1960s s Exhibit T) Page_ of ti i v • .771f4~ gib, w tF 4%p . f•-$ .N• ray v. s Jx~ r w ~ B apt Y ~ ~ f f c I ~7 7 ATTA cN 0) tAOT 1 Exhibit D Page Ct of ~7_ r ;GMs ~i - y; ~ =r JJ Vey 4*41 a S; lei clSi ? a ! t`fv` It 2 ©0 3 0tNY t Exhibit 1~-,> Page © of Yahoo!; Mail - lee_hellmuth@yahoo.com ►HC)0t I L From: SUNLADYHAWK@aol.com Date: Mon, 20 Sep 2004 16:01:53 EDT Subject: Boat Slip To: Lee_Hellmuth@yahoo.com TO WHOM THIS MAY CONCERN: Dear Sirs, Page 1 of 1 Print - Close Window I, Marta Lynne Rotz (formally Marta Hiney) spent many summers in the Bend area sense I was two years old. My folks, Eugene and Louise Hiney and their good friends Anita and Donald B. Karstetter enjoyed the area so much that in 1955 (not recoreded till 1957, 1 believe) bought property a long the Deschutes River. Address now 54868 River Forest Lane Bend, Oregon 97707. Eugene Hiney and Donald Karstetter bought their property from Louther Metkey from Motoilus, Oregon. (not sure of the spelling of theses names). Well, any way as a child growing up out there I played along the Fall River Area with the Nickels Grandchildren, Beverly Prunk. When we were about thirteen years old or maybe a little older, Mr. Metkey sold the property in question to his friend Mr. MacMillian. (not sure on spelling of his name either) Mr. MacMillian was extremely nice to us and let us use his boat to go up and down Fall River and out into the Deschutes River. This brings me to this point of this little letter, I'm writing to in form you that Mr. MacMillian built the boat slip in question to keep his boat moored there during the summer months. I'm not exactly sure what happened to Mr. Mac MacMillian but when I was twenty he was no longer around the area. I Marta Lynne Rotz (Riney) am 57 years old. I was born in 1947. SO this would put the boat slip there in the early sixties and well before 1972, the point in question! Now if need be, the Karstetter descendants, Martin, Dale, Lewis, Donnie and Donna can probably shed light on this also, as they to, are familiar with this area and may be able to validate Mr. Hellmuth's claims. If anyone needs to entertain any verbal conversation about this matter, please fell free to call me 1-541-408-5455. Sincerely, Marta L. Rotz ArlAcH W dwr 3 Exhibit D Page ~ k of ~-J_ http://us.f503.mail.yahoo.com/ym/ShowLetter?box=Boaat%2ORamp&Msgld=2717_0_72... 7/10/2005 Lee Hellmuth 16534 Las Casas Place Pacific Palisades, CA 90272 July 3, 2005 Deschutes Community Development Department 117 NW Lafayett Ave Bend, Oregon 97701-1764 Dear Deschutes County Commissioners: RE: Ballot Measure 37 Claim Number M37-05-5; Hellmuth The intent of this letter is give the Deschutes County Commissioners some background information and restate my position of requesting renewal of property rights rather than financial compensation under Measure 37. Two summers ago I asked the Oregon Parks and Recreation Department local manager to visit my property because of the fire danger caused by dead and falling trees. After the visit, I was told that the State did not have enough funds to clean out the Parks property boarding my property. The Parks property borders my property North, West, and South. The State Parks denied my request to remove the fire danger from the Park. I have the last property on the road and I'm concerned about fire and fire evacuation. I decided to create an emergency exit via my existing boat ramp in case a fire blocked the road exit. This emergency exit could be used by family and neighbors. (There was a fire on the Fall River a few years ago.) There has been a boat ramp/slip on my property since at least the early 1960s per one of the long time neighbors who grew up close to my property. I have a 1979 photo of the boat ramp/slip showing a footprint length of 22 feet and width of 11 feet. I cleaned out the boat ramp portion of the existing boat ramp/slip with a footprint of about 10 feet long. A few days later I received telephone calls from Deschutes County representative and others stating that I must stop all work on the Fall River because I did not have a permit. I had no idea a permit was required to do maintenance on a boat ramp. Exhibit ID Page VL of-CA I invited all agencies to my property for a site visit. The County representative told me that I would have to obtain permits and provide proof that the boat ramp/slip had not been abandoned. The Division of State Lands told me to fill in the boat ramp/slip or they would fine me $1,800 because I did not obtain a $50 permit from them. I started the permit process not knowing what agency would approve or deny my application. The County representative told me that the burden of proof was on me and that I should seek legal advice, as she was not familiar with all the regulations pertaining to my boat ramp/slip situation. I did obtain an attorney based on the County representative advice. The attorney cautioned me to move slowly as he wanted to be sure that all involved agencies were in agreement prior to spending money on the permits. I started to gather information for the County permits. About this time I found out about Measure 37 and filed my Measure 37 claim with Deschutes County. I notified the agencies that I filed Measure 37 and that I would wait for Measure 37 results before continuing with the permit process. My Measure 37 position is that Deschutes County changed the zone on my property after I purchased the property in 1978. These new zone designations put use restrictions including permits, time delays, and fees that devalued my property. In order to determine the value loss due to the Deschutes County zoning restrictions, I enlisted the expertise of an established real estate broker, John Gibson. John is a well- known, long-time real estate broker currently living and working in the area of my property. Based on his experience, John Gibson estimated that my property with the Oregon Deschutes County zoning restrictions is worth around $20,000 less than the same property without restrictions. Deschutes County placed the restrictions of Flood Plain Zone, Wildlife Area Combining Zone, Landscape Management Combine Zone, and Forest Use Zone on my property after I purchased the property. Again, these zone designations put use restrictions including permits, time delays, and fees that did not exist at the time of purchase To date, I have already spent over $2,000, including legal fees, to restore my boat ramp/slip on my property to its original state that would not have cost anything prior to the Deschutes County zoning designation change. 2 Exhibit Page __L-z> of 1-1 J I have stated from the beginning that I am not interested in receiving the dollar amount of my devalued property. I just want my property rights restored to what they were when I purchased the property. If you remove the Deschutes County Zone(s) that place restrictions on my boat ramp/slip designation from my property, then everything will go back to the way it was. There is no public benefit for the Deschutes County Zone(s) designation on my property. My property is isolated and my closest neighbor, John Brag, is in favor of the boat ramp/slip. He volunteered to document his position in favor of my boat ramp/slip, if requested. Very few boats come up the Fall River due to the shallow river at the upper end of my property and all boats turn around and leave the Fall River at that point There is very little foot traffic on the Fall River on and by my property. I am on record with the Oregon State police to allow fisherman on my property. I have been a good caretaker of my Fall River property. I was the only property owner in the Deschutes County to apply and be accepted into the riparian program on the Fall River. I placed about 3000 feet of river frontage in this program. I worked with Ted Fees (now retired) of the State Fish and Wildlife on this project. I allowed access to the Fall River through my property for the local fly fishing club to plant redside trout eggs in the Fall River for several years (photo of egg box in Fall River on my property is attached). I again worked with Ted Fees on this project. I thinned the trees and have planted over 2000 trees on the Fall River property. I worked with the State Forester, Stewart Otto, on this project. I put out hay for the animals on heavy snow winters. I am not here to destroy the environment; rather I take care of my property and maintain it for future generations. Summary: Measure 37 gives you the authority to return my property rights to what they were when I purchased my property or to financially compensate me for the decreased value caused by the restricting zone(s). My choice is to have my property rights restored. My Measure 37 claim should not be denied as I have provided proof that my property has been devalued because of the Deschutes County zoning. Since , ee Hellmuth Cc: John Gibson Legal File 3 Exhibit D Page -lA-- of 0 - d <_wr~+Y.6~SR• a ~ , & u + f ~ y el ~ - "d _#i.°L{ .3 w s Exhibit Page_ of 1-1 0 ' Legal Counsel 1300 NW WALL STREET, SUITE 200 . SEND, ©REGON 97701 FACSIMILE SPUI-617-4748 Mark P1111od Ar 541-388-6633 Mark P. Amberg 9 541.3304645 Laurie E. Craghead V 541-388-6593 January 20, 2005 PLEASE REFER TO FILE MO,: 4-576 Lee Helimuth 16534 Las Casa Place Pacific Palisades, CA 90272 Re: Measure 37 Claim at 54800 Forest Lane, Bend Dear Mr. Helimuth: The County has received your claim materials. The notice of the claim to neighbors in the ordinance has been sent. The Deschutes County Board of Commissioners has taken the position that the County should seek to make Measure 37 work. This letter is in that spirit. The County's interest is to consider waiver claims with sufficient evidence in a decision record on each element of a claim. The County wants to assist you in demonstrating the following: 1. Proof of the identity of all the current owners from a Title Report and/or deeds. All current owners should sign the Claim Form. An amended Claim Form could be used to add any mortgage holders prior to the Board hearing. Your warranty deed indicates that you are the sole current owner with no mortgagor, 2. Proof of the date you acquired the property is evident from that warranty deed. 3. Identification of the land use regulation that "restricts" the use depends upon the desired use. If a permit for the desired use or a related use has been denied, that evidence is needed for the record. Your analysis of how the flood plain regulation restricts the ramp/slip is helpful, 4. Determining how the regulation has the effect of reducing the fair market value of the property requires evidence to compare valuation of the property with the current regulations and with the restricting regulation not enforced. This Measure 37 valuation comparison seems to differ from appraisals done in the usual course of real estate sales. Sufficient evidence is needed to demonstrate a market based reduction in value. Whether development of the desired use is feasible is part of that evidence of comparative value. For example, if sufficient septic, domestic water and road access are not available for a desired use, there may be no reduction in value if the desired use is infeasible even if land use regulations were not enforced. Oualftu Services Performed With Pride. Exhibit 2 Page of -1 LtM P'nt111114UUI Re: Measure 37 Claim at 54800 Forest Lane, Bend January 20, 2005 Page 2 My understanding is that the 1989 flood plain regulation made your existing ramp a nonconforming use and that you want those regulations waived. A letter from the real estate professional stating the present value of the ramp/slip before the regulation and the current reduced value due to the regulation would be some evidence of reduction in value from the Board's decision record. As with any new law, the County must determine whether it will be modified by the legislatue or court interpretation. Therefore, action on your claim by the Board will be within the 180 day period, but await any action by the 2405 legislature, Thank you for your consideration and cooperation in this matter. Sincerely, Larry S. Shaw Measure 37 Investigator Jljk Exhibit D Page N-1 of 1Z_