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2005-1147-Minutes for Meeting September 07,2005 Recorded 10/10/2005UBLANKENSHIPRECORDS , COUNTY CLERK YInd 2005.1141 ISSIONERS' JOURNAL ,,,,1111111101111 oil 111 all 10/10/2005 10;28;00 AM -1147 DESCHUTES COUNTY CLERK CERTIFICATE PAGE This page must be included if document is re-recorded. Do Not remove from original document. Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, SEPTEMBER 7, 2005 Commissioners' Hearing Room - Administration Building 1300 NW Wall St.., Bend Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Mary Fleischmann, Sherj's Office; Kevin Harrison, Tom Anderson, Catherine Morrow, and Catherine White of Community Development; Dennis Morris an Tom Blust, Road Department; Mark Pilliod and Laurie Craghead, Legal Counsel; Bill Carson of Sunriver Service District Board; media representatives Chris Barker of The Bulletin and Barney Lerten of News Channel 21; and approximately twenty-five other citizens. Chair Tom De Wolf opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. Commissioner Luke asked for the Board's opinion regarding having the Fire Free program for five additional days, bringing it to nine days total and connecting the two weekends. Project Wildfire is supportive of this idea. The Commissioners agreed this would be appropriate. 2. Before the Board was Consideration of the Reading and Signature of a Proclamation Declaring September 2005 "National Youth Court Month" in Deschutes County. Mary Fleischmann introduced various people involved in the program, and gave an overview of "teen court", which is the front line when dealing with the first offenses of juveniles. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 1 of 17 Pages The court consists of a jury of their peers from middle and high school who decide the consequences of their inappropriate action and work with them to make sure they complete the terms of their sentencing. The recidivism rate is around 4-7%, indicating most do not reoffend. This diverts a great number of youth from becoming involved in a negative way with Juvenile Community Justice. Ms. Fleischmann then read the proclamation to the audience. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 3. Before the Board was Consideration of Signature of Resolution No. 2005- 109, Declaring Two Trailers Surplus Equipment and Authorizing their Sale. Dennis Morris gave a brief overview of the proposed purchase of two new trailers (19 -yard belly dump trailers). He said that the bids for the old trailers are higher than the quoted salvage value. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 4. Before the Board was Consideration of Signature of Order No. 2005-081, Assigning the Name of Victory Way to an Unnamed Access Road (off Huntington Road). LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 2 of 17 Pages 5. Before the Board was Consideration of the Second Reading and Adoption of Ordinance No. 2005-023, Amending Title 23 of the Deschutes County Comprehensive Plan in regard to the Redmond Urban Reserve Area (File # PA -05-06). LUKE: Move second reading, by title only. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Chair DeWolf conducted the second reading, by title only. LUKE: Move adoption. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 6. Before the Board was Consideration of the Second Reading and Adoption of Ordinance No. 2005-024, Amending Title 18 of the Deschutes County Zoning Map in regard to the Redmond Urban Reserve Area (File # PA -05-06). LUKE: Move second reading, by title only. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Chair DeWolf conducted the second reading, by title only. LUKE: Move adoption. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 3 of 17 Pages 7. Before the Board was Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2005-033, Amending the Bend Area General Plan to Change the Plan Designation for Certain Property (Miller Tree Farm) from Industrial Reserve to Urban Area Reserve. Catherine White summarized the ordinances. She said the Hearings Officer has the authority to make the decision but the Board still needs to adopt it. Commissioner DeWolf said that a hearing held the previous week on another issue brought out the point that it is important to know whether and where aggregate is available in the County. Apparently a lot of material is located throughout the County that is not listed as a Goal 5 resource. Ms. White replied that this particular property is an old pumice mine and does not qualify as a Goal 5 resource, per the Hearings Officer. Ms. White stated that no adverse testimony was received on this item. The Sisters Forest Planning Group indicated an interest but did not object to it. The applicant has asked for an emergency clause, which is not unusual for a quasi judicial amendment. Commissioner Luke said that he has known the Miller family for a long time and has done business with their lumber yard, but feels there is no conflict of interest in this situation. Commissioner Daly stated that he also knows the Millers, but this association would not affect his decision. LUKE: Move first and second readings by title only, declaring an emergency. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Chair DeWolf conducted the first and second readings, by title only, declaring an emergency. LUKE: Move adoption. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 4 of 17 Pages 8. Before the Board was Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2005-034, Amending the Bend Urban Area Zoning Map to Change the Zone Designation on Certain Property (Miller Tree Farm) from Surface Mining to Urban Area Reserve. LUKE: Move first and second readings by title only, declaring an emergency. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Chair DeWolf conducted the first and second readings, by title only, by emergency. LUKE: Move adoption. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. At this time Chair DeWolf read the opening statement regarding how Ballot Measure 37 claims will be heard. (A copy is attached as Exhibit A) No challenges from the audience were received. Mark Pilliod explained that in regard to the Tumalo Farms claim, a request was received earlier in the day requesting a continuance to November 2. He said a request to continue the Johnson claim to November 2 had also been received. 9. Before the Board was a Hearing and Consideration of Signature of Order No. 2005-077 (Rencher — M37-05-34), regarding a Claim for Compensation under Measure 37. Tom Anderson said that the claimant is Frank L. Rencher and the Rencher Trust. The property is located off O'Neil Highway, and is 38 acres zoned EFU. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 5 of 17 Pages The claimant indicates a desire to subdivide the property into fifteen 2-1/2 acre lots; the damage claim is for $1.2 million. Ownership information shows sufficient evidence that the property was acquired by the claimant in June 1964, with a revocable trust established in 1997; ownership interest has been continuous since 1964. There was no zoning in place at that time. Other than regulations in Title 17 covering subdivisions, there is no reason to deny the claim. The State has reached the same conclusion. Commissioner Daly asked if the revocable trust would need to be discontinued for the claimant to take action. Mark Pilliod said that the signature of the person in title is necessary, so the trust may have to be revoked to enable this to proceed. Edward Fitch, an attorney representing the claimant, stated that this is unclear under Measure 37, but if Frank Rencher signs as the individual and the trustee, it should be adequate. LUKE: Move approval of Order No. 2005-077. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 10. Before the Board was a Hearing and Consideration of Signature of Order No. 2005-078 (Gragg — M37-05-35), regarding a Claim for Compensation under Measure 37. Tom Anderson gave an overview of the claim. The property is located east of Sisters, located in an area where other claims have previously been reviewed. It is an eighty -acre parcel zoned EFU, and the claimant would like to create sixteen approximately five -acre lots. The claim of damage is $3 million. Marilyn Gragg has furnished information indicating her acquisition of the property was in July 1974. The Robert Gragg Trust was created in March 1994. The County had A-1 zoning in place, indicating a five -acre minimum lot size. The State's conclusion is the same as in the County's order. Attorney for the claimant, Ed Fitch, said his clients concur with the staff recommendation. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 6 of 17 Pages Paul Dewey, attorney representing William Boyer, testified. He said he had submitted materials for the record with an August 13 letter. He stated that in 1994 Robert Gragg conveyed all of his interest into the Trust. The argument is that because of this transfer, there is no basis for Marilyn Gragg to have a current interest in the property. Mark Pilliod explained that the Board received the letter and it is part of the record. He added that it appears from the County's review that Robert Gragg did convey his interest into the Trust, but that was not sufficient to convey Marilyn Gragg's interest. Her interest remains. Attorney for the claimants, Ed Fitch, said that in elementary real property law, you can only convey what you have. Mr. Gragg had one-half interest. They had been divorced before then. He put his interest into the Trust but Ms. Gragg did not. A bargain and sale deed does not warrant. LUKE: Move approval of Order No. 2005-078. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 11. Before the Board was a Hearing and Consideration of Signature of Order No. 2005-079 (Rister — M37-05-33), regarding a Claim for Compensation under Measure 37. Tom Anderson stated that the property is located in the La Pine area, north of Burgess Road. There are two parcels, 124 acres total, zoned F-2. The claimant indicates a desire to create 124 lots of/2-acre to 1-1 /2 acres each. The claim is for $7.9 million. The property was acquired in October 1970 by the parents; the son acquired it from the parents in November 1991. In 1991 F-2 zoning was in place on the property. He added there was significant neighborhood opposition to this claim. No decision has been received from the State at this time. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 7 of 17 Pages Mark Pilliod said that he did receive a draft decision that likewise focuses on the acquisition date of 1991. Some regulations may be waived if they applied after that date, but the zoning would continue to apply. The claimant was not present. No opposition was offered. LUKE: Move approval of Order No. 2005-079. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 12. Before the Board was a Hearing and Consideration of Signature of Order No. 2005-080 (Hurtley — M37-05-36), regarding a Claim for Compensation under Measure 37. Tom Anderson explained that the claimant is David Hurtley; the property is located east of Sisters and north of Highway 126 between Aspens Lakes and Goodrich Road. It consists of approximately thirty acres; the claimant desires to create approximately fifteen two -acre lots. The damages claim is for $600,000. Evidence was submitted and verified that takes Mr. Hurtley's ownership back to 1972. The rules at that time had minimum lot sizes, based on the geographic nature of the land; this may or may not have allowed the two - acre lot size. Chair DeWolf noted that a letter from Paul Dewey states that all interest was assigned away in 1979. Mr. Pilliod explained that in the 1970's it was common practice for lenders — for instance, a credit union — to loan money and take as security an assignment of a person's interest in that loan. Statutes were inflexible at the time and lenders insisted on assignments. There is material in the record that indicates this was the purpose of the assignment. Staff's opinion is that the claimant continues to have an interest in the property. Chris Bedsol, a land use consultant, testified that he is assisting the Hurtleys. He got a call from County Counsel asking for clarification of the deeds, and the differences in the legal descriptions from 1972 versus 1979. The 1972 deed included a considerable amount of property located along Hurtley Ranch Road. The warranty deed from 1979 only refers to a portion of the property. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 8 of 17 Pages Mr. Pilliod said that he spoke with the Surveyor and learned that the subject property is limited to tax lot 700. The warranty deed includes tax lots 700 and 800. The original contract from 1972 included other properties as well. Ownership has been continuous, with the understanding that Mr. Dewey contends that the interest was broken by the interest of the finance company. Mr. Bedsol said that his clients have no objection to the Order. He added that the State has also granted the waiver. Paul Dewey, an attorney representing William Boyer, stated that he understands the point made, but feels that what is in writing should be guiding the decision since proceedings are based upon the records and documents. The Board should not try to determine intent. He added that it would be good for the County to confirm whether this property is a five -acre minimum. Chair DeWolf explained that would be part of the land use decision, which the Board is not addressing at this time. Commissioner Luke added that these hearings are not meant to be land use proceedings. Some claims are going to end up in court, and the sooner the County can move them through, the sooner they can be addressed in the courts. LUKE: Move approval of Order No. 2005-080. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 13. Before the Board was a Hearing (continued from July 13, 2005) and Consideration of Signature of Order No. 2005-053 (Ewalt — M37-05-17), regarding a Claim for Compensation under Measure 37. Tom Anderson gave an overview of the claim. The property is located west of Terrebonne off Highway 97, and consists of 58 acres zoned EFU. The claimants desire to subdivide the property into approximately 2-1/2 acre lots. The damages claim is for $1 million. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 9 of 17 Pages Ownership in the property is complicated. The first date that a family member acquired an interest was in September 1953. The first date that the claimants had an interest was in 1993. However, this timeline is not true for each individual. Candace and Eric Ewalt first acquired an interest in 1993; Tim Ewalt in 1994. No interest in the property could be found for the other claimant, Jennifer Ewalt/Hooey. The Order would grant a waiver for Candace and Eric Ewalt to January 1993. Ed Fitch, representing the claimant, said he understands how the County analyzed the information, but disagrees that the ownership is convoluted. The issue is whether the marital interest goes back even if the married person was not on title. There is a basis for joint interest, shown through tax returns and other documents. No opposing testimony was offered. LUKE: Move approval of Order No. 2005-053. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 14. Before the Board was a Hearing (continued from July 13, 2005) and Consideration of Signature of Order No. 2005-054 (Nelson — M37-05-16), regarding a Claim for Compensation under Measure 37. Tom Anderson stated that the claim involves two properties located at Hamehook Road and Butler Market Road, east of Bend on the city side of the airport. There are two parcels totaling approximately 76 acres, zoned EFU. The claimants wish to create a 52 -lot subdivision. The damages claim is for $3.5 million. The acquisition date was December 1952, and a revocable trust was created by the Nelsons in 1991. Interest in the property has otherwise been continuous. The waiver would establish the review date to 1952, at which time there was no zoning in place. Subdivision regulations would apply. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 10 of 17 Pages Chair DeWolf said that Paul Dewey's letter of August 17 states that a plan amendment and text amendment have been requested by the Nelson's attorney. This issue cannot be addressed at this time. Bruce White, attorney for the claimants, stated that the claimants and their son, Gary, are at the meeting today. He added that John McLean and David Saylors are assisting them with their development options. He indicated he wanted to address several issues. He said that he does not agree totally with the Order, and would also like to respond to the opponents. He will submit additional evidence to respond, along with letters in support from the neighbors. He stated he understands the County cannot address the request for modification of zoning at this time. There is an option under Measure 37 to modify zoning. He had some discussions with County staff about this, and there is interest among Measure 37 claimants to come up with some kind of agreement with the County in this regard. This issue is active and will come back to the Board at some date. With respect to the waiver, he wanted to make sure the July 2004 letter is in the record. He said there are a number of issues raised by Mr. Dewey's letter and he just became away of them yesterday. He said he does want to address several of them. First, regarding the trust, Mr. Dewey has suggested that because the trust is not in evidence, there is not substantial evidence of it. Mr. White stated he shared a document with County Counsel regarding the feasibility of development. He noted that in the draft Order there was no evidence regarding the feasibility of sewage disposal. This was addressed in his July 7 letter. He said he also has additional evidence today regarding the adjacent property which has the same kind of soils. The opponents are indicating there is not sufficient evidence in the record for the Board to make a decision today. Chair DeWolf said that the only issue today is the date of acquisition. Mr. Pilliod stated that the ordinances does speak to feasibility and is appropriate. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 11 of 17 Pages Mr. White explained that the roads have been repaved to County standards. In regard to value, additional information has been submitted. The claim was in excess of $1 million originally; appraisal values have now been submitted to show a difference in value of $3.5 million. No development costs were submitted. He added that he wanted to have this information on the record in case the claim ends up in circuit court. The last issue is that Mr. Dewey references property disputes with the neighbors, the Boyds, to whom the Nelsons sold property years ago. Those issues are ones that don't affect the viability of the claim. If in fact there is a valid right of first refusal that is disputed, it doesn't specify that this property needs to be offered in one piece. Regarding the right to use the northern part of the property, the issue is between the parties and doesn't affect this claim. John McClain then spoke to development costs. He said he put together a rough estimate of costs and came up with $24,700 per lot, totaling $1.5 million. He said the development is viable. He said he has been developing property in the area for about ten years, and can provide estimates in writing if necessary. Gary Nelson then spoke. He said he had been farming the property for many years. In regard to septic feasibility, test holes were dug during the late 1990's on the 80 -acre parcel. The other parcel is similar. He added that there don't seem to be any safety or site distance issues that would preclude using Butler Market Road for access. Mr. White stated that the Order indicates they have not submitted evidence regarding an application for a land division. That information was submitted in July and again today. Evidence regarding sanitary waste disposal was submitted at the same time. Regarding the form of ownership, the Nelsons are trustees of a revocable trust, which applies to both of them. (He then submitted letters from the neighbors and a copy of the trust agreement to Tom Anderson.) Paul Dewey said he is representing Sherry and Doug Boyd, who bought the property to the north. In regard to revocable trusts, the courts have said that if a trust is set up for liability reasons, you can't choose to ignore the trust at your whim. The applicants want to have it both ways. This is something for the courts to determine. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 12 of 17 Pages The other issue is the general process. A lot of evidence has come in today. He said he was tempted to request an extension, but would not do so. Commissioner Luke asked if it is appropriate to allow Mr. Dewey to respond to these items. Mr. Pilliod said that there is a deadline, but it seems reasonable that Mr. Dewey would ask for additional time to respond. Part of the problem with the Measure 37 process is that it is very basic. Commissioner Luke asked if they need to give the opponent a chance to respond to the new evidence. Mr. Pilliod stated that the Board has twelve days to make a decision. Chair DeWolf said that the Board could allow Mr. Dewey until Friday, September 9 to respond and Mr. White until Monday, September 12 for rebuttal. Mr. Dewey stated that this wasn't necessary, and is not requested; that the Board could rule today if desired. Commissioner Luke noted that he has known the Nelsons for a long time, through his wife's family. However, this does not affect his decision on this matter. LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 15. Before the Board was a Hearing (continued from July 13, 2005) and Consideration of Signature of Order No. 2005-050 (Smith/Walker — M37- 05-19), regarding a Claim for Compensation under Measure 37. Tom Anderson said that a claim was submitted by Ester Smith regarding property located west of Redmond near Helmholtz and Maple. The land is twenty acres zoned EFU. The claimants indicate they would like to subdivide the property. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 13 of 17 Pages The ownership history is very complex; an exhibit was created to show the details. There has been lots of back and forth ownership activity between family members. Penny Walker's continuous interest goes back to November 1990. The other three have unbroken ownership back to May 2003. Ed Fitch, representing the claimants, agreed that the ownership history has been complex. Verne Wilde acquired the property with her husband Carl in 1968. They divorced in 1970 but kept an interest in the property through a settlement. Her name was not left on title. He did not follow through on obligations, so deeded 1/3 interest in the property to her and 1/3 to her son in 1980. In late 1990 the property was conveyed to Penny Walker to obtain financing. After financing had been procured, their names were put back on the title. This also happened one other time. He said from his perspective, Verne Wilde's interest goes back to 1968 and the others to 1980. No opposing testimony was offered. LUKE: Move approval of Order No. 2005-050. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 16. Before the Board was Consideration of Chair Signature of an Oregon Liquor Control Commission Application for the Inn of the Seventh Mountain (Innspired LLC). LUKE: Move approval. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 14 of 17 Pages CONVENED AS THE GOVERNING BODY OF THE BLACK BUTTE RANCH COUNTY SERVICE DISTRICT 17. Before the Board was Consideration of Signature of Resolution No. 2005- 110, Submitting to the Voters in a District -wide Election a Five -Year Local Option Levy to Fund Law Enforcement Services. Laurie Craghead gave an overview of the document, which would allow Black Butte Ranch Service District to go out to the voters for a five-year levy to fund law enforcement services. LUKE: Move approval of the appropriate documents. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 18. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $249753.04. 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 19. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $335.97. LUKE: Move approval, subject to review. DALY: Second. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 15 of 17 Pages VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 20. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $711,506.11. LUKE: Move approval, subject to review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. The Board then approved economic development grants as follows: • Grandma's House, capital purchases - $4,000 ($2,000 each, Commissioners Luke and Daly) • Bend Film Festival - $5,000 (Commissioner DeWolf) • Fair & Expo Center, Fair transportation - $5,000 (Commissioner Luke) • Fair & Expo Center, facilities - $10,000 (Commissioner Daly) • OSU/4-H Program, educational material - $5,000 (Commissioner Daly) • Central Oregon Community College, Diversity Conference - $5,000 (Commissioner DeWolf) • Arts Central/Van Go Program - $3,000 (Commissioner DeWolf) • American Red Cross, Hurricane Katrina Relief - $10,000 21. ADDITIONS TO THE AGENDA None were offered. Being no further items brought before the Board, Chair De Wolf adjourned the meeting at 11:55 a. m. Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 16 of 17 Pages DATED this 7th Day of September 2005 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Tom DeWolf, a r ,M"/ I, w il Michael V. Daly, Co missioner n ennis R. Luke, Commissioner Attachment Exhibit A: Measure 37 opening statement (2 pages) Minutes of Board of Commissioners' Meeting Wednesday, September 7, 2005 Page 17 of 17 Pages 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. Pagel of 2 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 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] of 2