2005-1176-Minutes for Meeting October 12,2005 Recorded 10/12/2005COUNTY OFFICIAL
TES
NANCYUBLANKENSHIP, COUNTY CLERKS CJ 2045.1116
COMMISSIONERS' JOURNAL
1111111 111111111111 10/12/2005 04;49;50 PM
2005-1ifd
DESCHUTES COUNTY CLERK
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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
WEDNESDAY, OCTOBER 12, 2005
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St.., Bend
Present were Commissioners Tom De Wolf and Dennis R. Luke; Commissioner
Michael M. Daly was out of the office. Also present were Mike Maier, County
Administrator; Dan Peddycord, Shannon Dames, and Muriel Delaverge-Brown,
Health Department; Suzanne Donovan, Mental Health Department; Tom
Anderson, Community Development; media representative Chris Barker of The
Bulletin; and approximately twenty other citizens.
Chair De Wolf opened the meeting at 10: 00 a. m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was Consideration of Approval of a Needle Exchange
Program for Deschutes County.
Shannon Dames asked that the Board approve the needle exchange program,
which has been reviewed and approved by Risk Management and Legal
Counsel and which has been discussed by the Board several times.
LUKE: Move approval.
DEWOLF: Second.
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 1 of 9 Pages
Chair DeWolf stated that the Health Department has done a good job in
explaining the need for the program.
Citizen Angela Kephard asked to speak. She owns a tattoo business next to
Pfeifer & Associates, which is a location that will be used as a satellite location.
She said the Domino Room and Boom Town are nearby, as is concerned about
the satellite location, since some junkies and others may be hanging around.
She agrees with the concept, but feels this shouldn't take place near locations
where children congregate.
Chair DeWolf explained that this program has been discussed in the media for
at least six months and was highly publicized. He said it might help for her to
discuss it with Shannon Dames in case she has ideas that she wants to share.
She also can report any problems that she sees.
Ann Shindo, Harm Reduction Coordinator for the State of Oregon, said that she
is very pleased with way the program is proceeding. The syringe exchange is
an important part of it; it increases the amount of syringes that are turned in,
eliminating access. She said she has worked with several programs throughout
the State, and worked with the neighbors in a collaborative way. Any illicit
activities are monitored, and it is made clear to clients the program will be shut
down if there are problems. Businesses around the locations support the
exchange.
Ms. Kephard stated she was a street kid, and got strung out and had a heart
attack at age 14, and knows how it works.
Sonia Kephard then spoke. She said she is in favor of the program to control
the spread of disease, but understands the concerns that the location is probably
not the best since the Domino Room is next door, and it is frequented by
underage kids. Perhaps some place further off the beaten path would be better.
Chair DeWolf suggested they meet with the experts and work with them. It will
be highly monitored and they should be given the benefit of the doubt and give
it a chance. He added that problems will be taken serious, but they have to do
what makes sense.
Sonia Kephard noted that the Art Hop goes on almost across the street, and the
drug users may get confused and hang out, waiting. It is not the best
environment for people trying to enjoy Central Oregon, as it may make them
feel unsafe.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 2 of 9 Pages
Commissioners Luke asked why that particular location is being used. Ms.
Dames replied that the primary location is the Health Department, but Pfeifer is
a good location since there is a lot of drug use in that area. Many of the users
are not reached, and it is the duty of the Health Department to intervene as well
as possible to decrease disease and addiction. They have to go to where the
users are. They don't always have transportation to get to the Health
Department. The reality is there is a large number of users concentrated in that
area, whether the exchange program is there or not. It will be primarily for
those who have transportation issues. The exchange is private, very discreet,
and is spread by word of mouth in that community.
Ms. Shindo added that Pfeifer has agreed to take people into treatment on
demand, which is another good reason to be at that location in case an addict
decides it is time to change his or her life around.
Commissioner Luke noted that there will be constant monitoring of the
program. There won't be a stand with a billboard; people will have to phone in
and set up an appointment. It won't be like a methadone clinic.
He added that there has been no big public outcry. Civic groups are aware of
the program and are saddened and disappointed that there is a need, but Bend
has big city problems like this one. It is better to have the needles exchanged
than have then just thrown on the ground or reused.
He said that the Local Public Safety Coordinating Council, whose members
include law enforcement officials, the courts and the District Attorney,
endorsed the program. The City policy are aware of the locations and will
monitor them for any problems.
Dan Peddycord added that it is the Health Department's intent to be a good
partner with and be sensitive to the needs of the community. If a location
doesn't serve the public well, he wants to know about it. There are many sites
in metropolitan areas, and if there are problems those sites get shut down. He
needs businesses and the public to be the eyes and ears of the program.
3. Before the Board was a Public Hearing and Consideration of Signature of
a Resolution Declaring an Exemption from Competitive Bidding, Declaring
a Sole Source, and Approving Document No. 2005-391, an Agreement with
Trillium Family Services for Treatment Foster Care Services.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 3 of 9 Pages
Commissioner Luke was not prepared to act on this item. It is to be placed on
the Monday, October 24 Board agenda.
Chair De Wolf read the opening statement regarding Measure 37 claims (a copy
is attached as Exhibit B) . There were no challenges from the audience as to
Commissioner bias, prejudgment or personal interest.
4. Before the Board was a Hearing and Consideration of Signature of Order
No. 2005-088, a Measure 37 Claim (Hilgart).
Tom Anderson stated the property is located south of the City of Sisters, and is
approximately 40 acres zoned F-2. The claimant desires to subdivide into eight
five -acre lots. The claimed loss of value is $1.2 million.
Ownership history in the record indicates the mother, one of the claimants,
acquired in the property in July 1976. Evidence shows it was conveyed to
Kristin Hilgart in 2001. Based on the provisions of Measure 37, if the Board
chooses to waive land use rules, the waiver would go back to 2001. The waiver
before the Board provides instruction to evaluate any subsequent land use
applications based on rules in place in 2001.
Mark Hilgart testified that although it has been stated that he didn't have any
interest in the property before March 2001, his wife and he lived on the
property before then, paid property taxes, and put over $100,000 into the
property. He added that when his wife's mother bought the property, his wife
was only twelve years old and couldn't own property and her mother was
holding it for her.
After his wife became of legal age there were laws in place that required a
conditional use permit to build. If the property had changed hands at that point,
they couldn't have built. So they waited to change ownership of the property.
Permits were also submitted prior to 2001 but those aren't mentioned.
Chair DeWolf said that he appreciates the fact that they live don the property,
but they must have ownership interest through the recording of a deed prior to
March 2001, as this is the only evidence that can be relied upon in this case. If
there is evidence available, it needs to be submitted to the County.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 4 of 9 Pages
Mr. Hilgart asked why paying for permits or paying taxes wouldn't qualify
them. Chair DeWolf replied that those payments could have been done in lieu
of rent or other consideration. There needs to be actual ownership interest.
Mr. Hilgart said that he has documents that his mother-in-law signed prior to
2001 showing that she was going to give them the property. Chair DeWolf
stated that intent is something else, and for these cases to be handled fairly there
needs to be recorded documents to rely upon. Mr. Hilgart's option is to take the
County to court. He suggested that Mr. Hilgart may want to talk with an
attorney to see what recourse might be available.
Mr. Hilgart stated that the way the laws were set up was a problem. They could
have owned the property sooner but wouldn't have been able to build at that
time. He said he feels they were set up.
Chair DeWolf said that he appreciates Mr. Hilgart's dilemma, but the voters
passed the Measure. The courts may be deciding a lot of these things in the
future.
Paul Dewey, representing Wayne Jack, a neighbor of Mr. Hilgart, said he
agrees with the analysis of Legal Counsel. He added that Oregonians in Action
drafted the provisions of the Measure, and it covers this type of situation.
He stated that paragraph 5 of the Order should be corrected, as the clause
speaks to regulations in effect. He said that "in 2001" should be inserted. Mr.
Pilliod agreed.
Mr. Dewey noted that in the final paragraph (top of page 2, current regulations)
regarding forest zone concerns of siting homes, the State has already ruled in
the Dorothy English case that fire siting standards are exempt from Measure 37,
He suggested that this language be stricken.
Mr. Pilliod said that the text of Measure 37 refers in general to exempt
regulations, and uses examples such as fire and building codes. He added Mr.
Dewey is suggesting that the Board should use the forest use combining zone.
After a brief discussion, Commissioner Luke suggested that the clause be left
as -is.
LUKE: Move approval with the change adding "in 2001" to paragraph 5.
DEWOLF: Second.
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 5 of 9 Pages
5. Before the Board was a Hearing and Consideration of Signature of Order
No. 2005-062, a Measure 37 Claim (Johnson).
Mark Pilliod said that he received a letter from the claimant's attorney,
reminding him that the matter was continued to November 2.
Chair De Wolf continued this hearing to Wednesday, November 2, 10: 00 a. m..
6. Before the Board was a Hearing and Consideration of Signature of Order
No. 2005-065, a Measure 37 Claim (Tumalo Farms, LLC).
Mr. Pilliod stated that he received correspondence yesterday from the
claimant's attorney asking that the matter be continued indefinitely. The
attorney is aware of the recommended decision and prefers not to take this to a
decision until perhaps there are court cases that might affect this claim.
This claim has been continued indefinitely.
7. Before the Board was a Hearing and Consideration of Signature of Order
No. 2005-066, a Measure 37 Claim (Olson).
Tom Anderson explained the property is located on Jordan Road close to
Cloverdale Road, southeast of Sisters. It is approximately 150 acres zoned
EFU. The claimant wishes to subdivide it into thirty five -acre lots. The loss is
value claimed is $7 million. This property is part of the Cyrus properties in the
Cloverdale area. It was part of the Cyrus living trust, and Barbara Olson was a
beneficiary of that trust.
The Order establishes her first interest in the property as a beneficiary of the trust
in May 1991. The property was acquired by her ancestors at an earlier date but
evidence of her first interest is in 1991, so the waiver would go back to 1991.
Mark Pilliod said that he has received correspondence from Paul Dewey on
behalf of his client William Boyer; these letters are dated August 10 and August
175, 2005 and are a part of the record. Ms. Olson is represented by attorney Ed
Fitch, who is not present.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 6 of 9 Pages
Paul Dewey submitted additional material to the Board, including a complete
copy of the Cyrus living trust and an article from The Bulletin regarding the
Cloverdale area, as well as the State's final order on the Olson case, which was
denied. He also submitted documents from Mr. Boyer and a newspaper article
regarding there being no loss in property value in this case.
He said that that in his opinion a revocable trust is purely a contingent interest,
making the beneficiary's interest very remote. He has seen no case law
submitted by Mr. Fitch or the County on this.
Mr. Pilliod stated that the property title might have been purchased in 2005, but
it doesn't change the County's position that for Measure 37 purposes, they had
an interest at an earlier date even though they may not have been able to sell the
property at that time.
LUKE: Move approval.
DEWOLF: Second.
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
8. Before the Board was a Hearing and Consideration of Signature of Order
No. 2005-094, a Measure 37 Claim (Badger).
Mr. Pilliod said he discussed this issue with the claimant's attorney. The claim
was presented and processed in a routine way, but it isn't routine in nature. The
claimant has asserted that they would be entitled to compensation or a waiver
sooner than has been determined.
The County has presented a report that is consistent to others in the past, but the
claimant would prefer to see how the courts rule before moving forward with this
claim. They have requested the issue be continued indefinitely. This will not
compromise either party's position in this case. Roger Alfred, representing the
Badgers, said he will send a letter to Legal Counsel requesting the continuance.
This claim has been continued indefinitely.
9. Before the Board was Consideration of Chair Signature of an Oregon
Liquor Control License Application for Pronghorn Beverage Company,
LLC.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 7 of 9 Pages
LUKE: Move approval.
DEWOLF: Second.
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
10. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
$219089.74.
LUKE: Move approval, subject to review.
DEWOLF: Second.
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11
COUNTY SERVICE DISTRICT
11. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-11 County Service District in the
Amount of $3,412.18.
LUKE: Move approval, subject to review.
DEWOLF: Second.
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
12. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $3,334,970.98.
LUKE: Move approval, subject to review.
DEWOLF: Second.
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 8 of 9 Pages
VOTE: LUKE: Yes.
DEWOLF: Chair votes yes.
13. ADDITIONS TO THE AGENDA
None were offered.
Being no further items brought before the Board, Chair De Wolf adjourned
the meeting at 11: 00 a.m.
DATED this 12th Day of October 2005 for the Deschutes County Board
of Commissioners.
Tom DeWolf, Chair
ATTEST:
Recording Secretary
Attachment:
Exhibit A: Sign -in sheet
PR -7->S FN-�-
Zchaelaly, Commissioner
ennis R. Luke, Commissioner
Minutes of Board of Commissioners' Meeting Wednesday, October 12, 2005
Page 9 of 9 Pages
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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.
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