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2005-1350-Minutes for Meeting August 24,2005 Recorded 11/28/2005DESCH TES COUNTY OFFICIAL UBLANKENSHIP, COUNTY CLERK 1�d iVO�-1350 NANCY COMMISSIONERS' JOURNAL 1111111111111111111111111111111111111 11/28/2005 02:41;00 PM 2005-1350 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.org MEETING MINUTES DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, AUGUST 24, 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 Anna Johnson, Commissioner's Office; Mark Pilliod, Laurie Craghead and Larry Shaw, Legal Counsel; Timm Schimke, Solid Waste; Tom Anderson, Catherine Morrow, Cathy White and Doreen Blome''Community Development; and media representatives Chris Barker of The Bulletin and Baney Lerten of Z21. Thirty other citizens were present. Chair De Wolf opened the meeting at 10: 00 a. m. 1. CITIZEN INPUT None was offered. 2. A CONTINUED PUBLIC HEARING on the Review of the Hearings Officer's Denial of a Conditional Use Permit and site Plan to Relocate Landfill - related Facilities to the North Development Area at the Knott Landfill, Limited to a Review of the Permits Issued by DEQ for the Proposed Transfer Station and Recovery Facility at Knott Landfill. (File #'s A-04-8 (CU -02-102 and SP - 02 -51.) Timm Schimke, Solid Waste Department; Catharine White, Community Development Department Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 1 of 67 Pages Laurie Craghead: The Commissioners granted me more time to review this decision. What I have reviewed will need to have some changes and I request the Board to give me until Monday August 29th. Commissioner DeWolf: Monday would be fine and we will continue the public hearing from today until Monday morning August 29th. Ms. Craghead: I believe the public hearing is already closed and it is just a matter of delaying the decisions. Commissioner DeWolf : You are correct. So, we will then consider this decision on Monday August 29th at the 10 a.m. Board meeting. Chair De Wolf read the opening statement for Measure 37 claims. A copy is attached as Exhibit A. Regarding challenges of bias, prejudgment and conflicts of interest the following was offered: Joe Willis: I am here on behalf of the Thornburgh's on the CEC thing. I got called in late and let me just tell you what I have been told. I can't recite to you that I know these as facts, because I don't know. I was just told that but we are going to ask for a continuance on that anyhow. I was told that the same law firm that is representing CEC is personally representing you (stated to Commissioner DeWolf.) Because of that I think it create problems both for you and the law firm. I don't think either of you should participate. I don't know those facts, I was told late yesterday. Commissioner DeWolf: My understanding is the law firm that represents CEC has been the attorney's I have used for over 20 years. That is a true statement. Mr. Willis: We are going to ask to have that continued when we have the first opportunity to do that for other reasons. I wanted to point that out to everybody. ivunutes or tsoarci of Commissioners' Meeting Wednesday, August 24, 2005 Page 2 of 67 Pages Commissioner DeWolf: I certainly respect that. What this goes to is bias, prejudgment or personal interest. I don't believe I have any of those. Perhaps I would defer to my own Legal Counsel. Mr. Willis: I understand that. Having known something about you I understand that fully. On that one I don't challenge your statement if you're comfortable with it. The problem is for the lawyers also because of our ethics rules are so tough. I don't have time to go figure those out. I don't want to be accused later of sitting on something without calling it to someone's attention. Commissioner DeWolf: If you feel strongly about that I am certainly willing to withdraw but listen to this and if there is a tie in a decision here, I would come back and break that tie. Mark, do you have any input on this? Mark Pilliod: As I understand it your statement that you don't believe you have any prejudgment or bias one direction or the other seems to have been accepted by Mr. Willis. With respect to the issue concerning the law firm itself, is it be precluded from representing CEC in this matter. Again, I am not going to dispute Mr. Willis's bringing that to people's attention at this point. There is other recourse if that turns out later to be an ethical dilemma for that law firm. Commissioner DeWolf: Maybe if the representative from that law firm could... (We need you on a microphone, please.) Michael McGean: I am an attorney for Francis, Hansen & Martin. I am going to be the sole attorney who is representing the Central Electric Cooperative this morning. I made that note to the County as early as the beginning of last week that I believed that I would be handling this matter. For the record, I have not had any dealings at all with Mr. DeWolf, Commissioner DeWolf, and any of your affairs. Our position is that it is segregated well enough that there is no actual or potential conflict here. Commissioner DeWolf: Ok. I have worked with three (3) attorneys in the Francis, Hansen & Martin firm, which would be Francis, Hansen, and Martin. To my knowledge and recollection no other attorney's at that firm have I had any dealings with, including yourself. Mr. McGean: That is correct. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 3 of 67 Pages Mr. Willis: All I want to do is call this to the attention of the people. I don't believe it appropriate for that firm to represent CEC before this Board under the circumstances. Again, we may all have to figure out what those technical rules are. Our lawyer rules are very difficult. There is a unit with respect to the firm and if one person has a conflict it spreads throughout the office, I think. I just want to call it to your attention. Commissioner Luke: I would like to ask County Counsel, there has been a couple of times where we have had firms that we have employed attorney's out of that firm for either hearings officers or we have hired them to do some outside work for us. Then they wanted to represent a client that was in effect suing us and we had the obligation to either allow that or not allow that. Does that fall into here at all? We are in effect being sued for quit a bit of money. Mr. Pilliod: I think that Mr. Willis' point is not that the County as a distinct entity has on occasion retained members of that firm for certain services, whether legal or quasi -legal services, but that CEC and the fact they represent the Chair, represents a conflict that precludes the firm from representing CEC, in this matter, under those ethical rules. Commissioner DeWol£ Even though I don't believe I have any bias or prejudgment here, I also want to error on the side of caution in something that could carry significant liability for the County. In the CEC matter I am perfectly willing to step away and not make a decision with the caveat that if my two colleges don't agree on the decision and in necessity to break a tie, I will sit here and listen to the information and sustain from voting unless there is a tie. Mr. Pillod: We don't know whether we will have a problem until that even happens. Mr. Willis: Commissioner with your judgment and guidance it may be that you would prefer to have this continuance request heard first so we can sort out some of these things. On behalf of Thornburgh's I have a position that I think is pretty compelling on that issue. Commissioner DeWolf. You know what, great. But right now that one is not before us, so how about if we get back to that in a little bit. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 4 of 67 Pages Commissioner Luke: Actually, the statement though, is for all of them so I need to put on the record one, I have known the Cyrus' for many years. My wife has known the family for many years. I was also a member, as many other people were, of Central Electric Coop and used to receive anywhere from a 2 to a 10 dollar check from them every year. Who ever opened the mail first, my wife or I, got to spend. Just put that on the record. I know that is a group thing that is why I want to put it on the record. Commissioner Daly: I also have to put on the record that during life before being a Commissioner I was an excavation contractor and in the early days of my contracting I worked for Central Electric Coop as a contractor. They paid me many thousands of dollars over the years doing their emergency work at night digging up faulted lines, etc. I have been a customer of Central Electric for many years. Also, I know the Cyrus' very well. Matt and Keith Cyrus, I consider them friends. I have a potential conflict on both sides of that issue. I put it on the record and I feel like I can make a decision. Commissioner DeWolf. We have one (1) challenge on the record that we will deal with when we get to that matter. So with that, I am going to proceed. 3. A PUBLIC HEARING (continued from June 8) and Reconsideration of Signature of Order No. 2005-44, Waiving Certain County Land Use Regulations and Consideration of Signature of Order No. 2005-061, an Order to Reverse the Board's Decision on a Claim for Compensation under Measure 37 (File #M37-05-9; Claimant: Brown/Perry) —Mark Pilliod, Legal Counsel Mark Pilliod: Commissioners you have before you and order and a staff report. This matter originally appeared before the Board last June, at which time the Board approved a so called waiver, not an enforcement order, with respect to the persons involved. That being Cecil and Irene Perry and James and Kelly Brown. Since that order was issued the County learned both that the State had taken a different position with respect Ms. Brown's application under Measure 37 and the justification for that different approach. It relates to the way in which Ms. Brown conveyed her interests in the real property to what I understand, is a daughter and son-in-law. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 5 of 67 Pages Apparently there was an unexpressed intent that Ms. Brown be permitted to reside on the property for the rest of her life. Automatically upon her passing away her children essentially would have the full bundle of rights to that property. She wanted to retain a life estate or a life interest in the property. The unfortunate part is that through the actual legal transactions that took place, she never accomplished that. The effort that she finally made in 2000 was to affect a deed correction or a corrective deed. While we understood that to be her expression of her desire to wanting to retain that life interest, in order to accomplish that it would have been necessary for the grantees initially to re convey to her and then have her convey a corrective deed. This is all explained, I hope in a little better detail than here, in the staff report and the recommendation. It was our initial reaction that she had effectively retained that life estate or that interest in property. After having looked at the facts and analyzing the law and discussing it with her attorney, we have come to the conclusion that she did not legally accomplish that. That is why we have brought it back to the Board and recommended that with respect to the claim by Ms. Perry she not be given the waiver non enforcement order that she was previously given in June. The result with respect to James and Kelly Brown is really not to change anything as far the Boards order from June is concerned. Commissioner DeWolf: Anything Tom? (To Tom Anderson who indicated no.) Mr. Fitch? Ed Fitch: Laurie, Mark and I have exchanged correspondence and legal authority in this area. We believe that the claim is a valid one, that Irene Perry has always had the agreement that she would continue with life estate on the property. She is the grandmother of Mr. Brown. They did take the life estate off the title for awhile because of concerns about relatives and meddling issues. They did do a corrective deed to get the life estate back to her on the title. From our perspective she has continued that interest in the property. She always has continued to reside on it and the agreement between Mr. and Mrs. Brown and Irene has, that she would always have that life estate. That is where we stand. I respect Mark and Laurie's position on it but we believe ours is the correct interpretation of the facts under the law and would request the County not enter the order before you today. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 6 of 67 Pages Commissioner Luke: Ed, if she took her name off the title, how is she still in possession without a written agreement with whoever the title went to. I would assume the Brown's. How is she still in possession of the property from your standpoint? Mr. Fitch: What was the consideration for her going off the title. The consideration was the agreement that she would continue to have a life estate in an equitable interest in the property. Commissioner Luke: Was that in writing? Mr. Fitch: No. Commissioner Luke: If for some reason they would have suggested that she needed to move, and they forced an eviction of her, what would have happened. Mr. Fitch: Well, from my perspective Irene would win. Even though you have statute of frauds, there was part performance that was the consideration. Commissioner Luke: But it would be contested wouldn't you think? Mr. Fitch: It could be a contested issue. I agree. Commissioner DeWol£ Anything else from either side? Mr. Pilliod: I believe that Tom had identified perhaps a misleading statement about ... There are essentially two sets of transactions and I may have misstated it. Did you want to clarify that (to Tom Anderson.) Commissioner Luke: Is that in the order or the explanation? Mr. Fitch: I think the information was incorrect. The deed was done.... Mr. Pilliod: Well, no, it is actually I think in paragraph.... go ahead (to Tom Anderson.) Tom Anderson: In item number five (5) of the order on page two (2), it basically states that the entire interest was conveyed in April of 2000. The staff Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 7 of 67 Pages report on page two (2) also, correctly portrays the transaction as 50% transferred in 2000 and the remaining 50% in 2002. Commissioner Luke: You are asking that the order be amended to reflect that? Mr. Pilliod: Yes. Commissioner Luke: Measure 37 is not as clear as many of us would like. There is going to be more than one of these end up in the courts to decide. This is a tough one. LUKE: Move approval of Order 2005-061 as amended per previous discussion. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. 4. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 069, a Claim for Compensation under Measure 37 (File #M37-05-31; Claimant: Central Electric Cooperative, Inc.) Mark Pilliod, Legal Counsel; Tom Anderson, Community Development Department Mark Pilliod: Because it has been mentioned by Mr. Willis we were actually going to address this matter first in any event. The opponents that we are aware of prior to this morning Keith and Connie Cyrus represented by Michael Peterkin & Associates. About a week ago he submitted a request for a continuance. He apparently had a prearranged vacation and he was going to be gone today. He asked that the matter be continued for one (1) week. I would note that the Board is not currently scheduled to hold any hearing or meeting on the 31 st but does have a meeting scheduled for the 29th. That might not work for him. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 8 of 67 Pages The council for CEC has responded to that request, in fact this morning we received and affidavit from Mr. McGean in opposition to that request. The only thing I would add is that the 180 day time frame under which Measure 37 requires the Board to take some action, expires on September 15th. There are some meeting dates, in fact the Board is anticipating a series of hearings on Measure 37 claims coming up on September 7th. That would be an alternative if the Board wants to go there. You recall probably that CEC had submitted, in the past, requests that the Board take up this matter well in advance of the 180 days expiration because of the concerns about the need to proceed with the upgrade of this proposed transmission line. Mr. McGean can elaborate on that. I would also suggest (I don't know whether the Board finds that a common practice or an acceptable one) it could begin a hearing and keep the record open or allow for continuation so the parties can either get up to speed or respond to items that were only recently uncovered. Perhaps the attorney Mr. Willis, is new to this particular application. I was not aware that he represented the Thornburgh's or that they even had a position on this matter until this morning. Commissioner Luke: What was the given reason for the extension request? Mr. Pilliod: The given reason was that the attorney Michael Peterkin was going to be away from the office today and would not be able to attend today's hearing. Commissioner Luke: There seems to be somebody standing up behind you who wants to speak with us. Do you represent that firm? Brian Hickman: Yes, I am Michael Peterkin's associate and unfortunately Michael Peterkin could not be here today. He has represented the Cyrus' for many years. He has a much better understanding of the underlying facts and the underlying dispute. We all know this case has gone on in different forms for many years. It would be prejudicial to our clients. I have worked very hard over the last days to try to get ready on this, there is not way I can get up to Mr. Peterkin's speed on this. They suggested that we knew about this hearing before the vacation. That is simply not true. We would not have undertaken to do this if Michael could not have been here. We Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 9 of 67 Pages did not learn about today's hearing date until Michael had a conversation with Larry Shaw just a little while ago. Commissioner DeWolf: How do you define a little while ago? Mr. Hickman: I believe it was in the last two weeks although, I did not have the conversation and I can't say. I did not find out about it until last Friday when I checked and was emailed the meeting agenda. I can say the two (2) weeks before that I had been directed to monitor and see when it was coming up. I checked the meeting agenda, I called staff and there was no sign of the hearing. You can notice from your record that the certificate of mailing, the notice that was sent to us, was sent on August 16th. As a matter of fact, it never got to us. It was wrongly addresses. It was addressed to 222 NE Irving and we are NW Irving. Not laying blame for that but the fact is that we did not have notice of this until after Michael's vacation has been planned for a long time. He works so hard sometimes he cancels vacations and gets his wife mad at him. This is his wife's father's birthday, he could not miss it. That is why we are requesting a short continuance. To the 29th would be fine or any other day before the 180 days expire. We would really appreciate it. Commissioner Luke: Mark when was the date set for this hearing? Mr. Anderson: We have never, as a matter of practice, published the hearing dates any more in advance than the notice goes out. He is correct that the notice went out last week. Mr. McLean: We filed this Measure 37 claim in March. March 15th exactly. The Cyrus' pending claim was filed just a day or two in front of our claim. They should have known that the Boards common practice is to take these claims in the order that they are submitted. In fact a lot of this is moot anyway. Measure 37 does not anticipate that there is going to be any kind of a minnie trial or extended kind of public hearing on this. What you have heard today is that the Cyrus' have council today. Actually, they have two lawyers from two different firms representing them this morning. One of them is Mr. Hickman and one of them is on their own claim. They are well represented at this point, and they have briefed this issue. They have their opposition in that County Counsel has had a chance to digest and review and dispose of in his draft report to the Board. There is just nothing to be gained here by putting this off any longer. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 10 of 67 Pages The members of CEC have waited since March, when this claim was first submitted, to have this matter heard. We really are at the end of the rope here. We have brought down this morning Al Gonzales, the President of CEC and we also have several other officers and board members from CEC in back here today too. This is a very important issue for the members of CEC and we strongly object to any kind of continuance. Commissioner DeWolf. Thank you. Mr. Willis. Mr. Willis: On behalf of the Thornburgh interest, I would also seek a continuance of some kind. I learned of this hearing yesterday afternoon about 3:00 p.m. I learned of it from Mr. Peterkin's office. I cancelled some other things and created a mess this morning to come down and ask for a continuance. Again, I am struggling because we got such a late notice of the hearing, I am told that my clients, Thomburgh's, never had any kind of notice of this hearing. Commissioner Luke: It depends on how far they were away from the property. Mr. Pilliod: Well, no actually the notices of the hearing go out to those who have submitted written comments. Because the Thornburgh's never submitted written comments, they weren't given notice of this particular hearing. In fact, the Thornburgh's aren't entitled to oral comments at a hearing. They are entitled to submit written comments only. In part because they have not previously submitted anything for the record. Mr. Willis: What I would like to do though is have the opportunity to look at that record to see what kind of notice, if any, and I am told none from either CEC or the County about this claim. I was told that but I have not had time to go and look. That is what I want to do is have the time to go back and double check. I don't think you want to go forward if you've got a basic malfunction on that kind of notice provision under your ordinance. Commissioner Luke: There is nothing in State law requires notice by anybody. The County, through their policy, has chosen to notify certain owners within a certain radius, which we don't have to do but we have chose to do it. As Legal Counsel has said, if you don't submit written comments when that first notice goes out, you can't do oral comments. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page I I of 67 Pages Mr. Willis: I understand Commissioner. What I am wanting to do is have the time to go back and double check that. It looks to me like you've got the time to do this, as requested, and still not hurt CEC and let them have their hearing before the 180 days. Commissioner Luke: Mark, I have a question because they brought up how many people they brought from Central Electric. Typically with a claim you have one or two and sometimes a couple more owners. In effect, CEC is, the President, the entire board, and everybody who in effect owns stock because you are a customer of CEC. Is there an opportunity to decide who is going to testify for the claimant, or do you have to allow all of them to testify? Mr. Pilliod: The Code doesn't offer any answer to that question. Commissioner DeWolf: So, it is up to us then? Mr. Pilliod: Right. Commissioner DeWolf: So, we can limit testimony and we can limit time frames. Do you have a recommendation for us this morning after what you have heard Mark? Mr. Pilliod: Well, again as I have said earlier, I don't know what the Board's practice is in analogous land use cases, which this isn't. But, the Board could open the hearing and receive testimony on behalf of the applicant and again leave the record open for the submittal of additional information that people want to submit. Leaving the record open probably furnishes as much of an opportunity for some people to submit argument in evidence for the record as they are going to get. Commissioner DeWolf: The challenge that I have with that is, I understand this isn't a land use case but if we were to, for example, continue this to allow written testimony until Monday, the way that fairness would dictate and our past practice would dictate is that the applicant would ultimately have the final opportunity to submit any rebuttal to any testimony that is submitted. So what we would be talking about here is, if we went forward with some sort of continued public hearing or allowing for written record, would be a date certain for information to be submitted and then a date certain for rebuttal by either Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 12 of 67 Pages side to that information in all fairness. Then one final period of time for final rebuttal by the applicant. That is typically how we have done in other cases where we stand as a quasi judicial body. Maybe it is 48 hours, 48 hours, 48 hours. If people are requesting something like this, if my colleges and I want to go along with this, I would expect a very fast turn around in order to make the September 15th date. So, one scenario would be to go ahead and take all oral testimony today and then very quick turnarounds with no additional oral testimony whatsoever. I am just suggesting that the only oral testimony today should come from people withstanding in this case and anything else would need to come in, in writing. If that is the way we want to proceed. The other is to reject this notion, go ahead and hold the hearing and make a decision today based on what we have today. I guess I am looking to my two colleges for their input. Commissioner Luke: I have read a lot of this. The arguments that are being made are going to be decided a whole lot higher than our pay grade in the court system, ultimately the supreme court. There are questions about whether the Coop is entitled to file Measure 37 claim. I just assume go forward and make a decision one way or other today and let people a little higher up make the decision on what is going to happen with this case. Commissioner Daly: Well, in all fairness, I hate to allow one side to have oral testimony and then not allow the other side to have oral testimony also. Commissioner DeWolf. I may have miss spoke. I didn't say that we would not allow the people who are party to this, the way that we have established every Measure 37 claim is people who respond have standing in this case. For instance, the Thornburgh organization made no written reply at all to this claim that has been in our system since March and has been in the newspapers and in the news. They would not have standing to have any oral testimony and if a decision is made today, no input into this. So, that is the question. Commissioner Daly: My question to our staff would be, apparently there is a whole bunch of owners along this power line in reading this file today and the Thornburgh's are one of the owners. Were all those owners on that power line notified originally or not? Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 13 of 67 Pages Mr. Pilliod: You're anticipating and I just asked the Community Development Director if he has that information with him this morning. He does not. It may be available in his office, but I think that is a good question. I don't know. Commissioner Daly: Well, I think I don't know how we can proceed without answering that question because there may be a bunch of others along that power line that all of a sudden want to come forward. Commissioner Luke: Under State law though, we are not even required to notify them, is that correct. Mr. Willis: Mr. Commissioner. Commissioner DeWolf: We need to speak with our attorney for a moment please. Mr. Pilliod: Measure 37 doesn't require any process or any hearing. We would be looking at the County's Code. The Code requires the Board to take information both written and oral and consider it before it makes a decision. There is language in the code that means if notices are mistakenly not delivered, that it is not a defect in the process. It is fairly standard language both in this ordinance and in other land use ordinances. So, to answer your question, notice is required by the Code, it is not required by Measure 37. Commissioner Daly: When you say notice is required by the code, notice to all parties, interested parties. Mr. Pilliod: Notice to property owners within a certain distance of the property that is in question. Commissioner Daly: Ok. So we are talking about if the property in question is a 4 and 1/2 mile line. Basically you would be required to notify everybody along that line. Is that right? Mr. Pilliod: Yes. Commissioner Luke: Is the claim for the whole length of the line or just sections of it? Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 14 of 67 Pages Mr. Pilliod: It's for the entire length of the line which in practical affect means that line which crosses private property. A good portion of it actually crosses Federal property and they have not made that part of their claim. Commissioner DeWolf: Tom, you look like you are itching to say something here about the notice. Mr. Anderson: I was just going to say that Kevin Harrison, our principle planner, has been doing notice all along. This one, obviously, is trickier. I can't say with certainty (will see if Catherine can find out) precisely who was sent notice. Initial notice of the fact that we have received the claim on this, I don't have that in file. Again, every other claim we've had has been for a precise piece of property. Our Code requires notice to all properties within 250 feet of the property line. This one, obviously, is very unique. With Kevin being out of town we are going to try and track that down. At this point, I can't say with certainty that the Thornburgh's did receive notice. Mr. Wills: Mr. Chair. I just wanted to point out one thing on behalf of the Thornburgh's. Unlike some of the other hearings you had where people want to come and complain or testify they are generally neighbors. A far different status than these fee owners across whose property that CEC is asking you to let them do additional things. That is a far different look as to the deference that these people, and the legal rights they have to participate. Commissioner DeWolf: Why? Mr. Willis: Because it is their land. There not a neighbor. CEC is asking you to wave regulations to do things on their land. Commissioner DeWolf: Because it is an easement. Mr. Willis: So, when you stop to think about that, if you had a regular land use application before you, would you allow a lessee or and easement owner to change some uses on that land without that underlying fee owner concurring. I think your Code would tell you no. So with the law.... Commissioner Luke: Measure 37 is not a land use issue. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 15 of 67 Pages Mr. Willis: I understand. I am just pointing out the differences in price on there, the things you have seen so far. Commissioner DeWolf: This has sure gotten complicated. Yes sir. Mr. McGean: I would like to take this up just again. I think that this is really getting a little bit to academic. I think that in this case we have one law firm representing the Cyrus', who have admitted in their affidavits to County Counsel that they have actually been working on this case since April. We have actual notice the Thornburgh's and Peterkin's are represented today. Excuse me, the Cyrus' through Mr. Peterkin's office. Even on top of that both the Cyrus' and the Thornburgh's are actual members of the Central Electric Cooperative. There is this long history that the Board is well aware of , land use proceedings that have involved this Jordan Road line project. What you're hearing is a red herring about this procedural issue that's not really an issue. What is actually the case is that these opponents to this claim are really going to try and do anything they can to hold this up for as long a possible. When, we really know, as one of the Commissioners noted, that there just preparing to get into circuit court anyway. There is nothing that is going to change in the next two weeks. The members of CEC would respectfully request that this be taken up today. We would actually object even leaving the record open but at the very least we would like to have this matter heard for once and for all. Commissioner Luke: I would like to just point out that there is nothing wrong with opponents trying to delay you as long as possible. I would do it to. Commissioner DeWolf: My sense is from both of you that we can proceed with the hearing this morning. Then we can make a determination when we've heard the testimony about whether to allow some time for additional written testimony or not. Does that sound like a fair way to proceed? Commissioner Daly: I don't feel that way. I think that question needs to be answered about whether the other folks along that power line have been notified or not. Commissioner DeWolf. That would be part of the decision about whether to continue this. If we don't have that answer by the end of this and you feel Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 16 of 67 Pages strongly that we want to find the answer to that question and get additional information, then that would tend to say you want to continue this for additional information. I am just suggesting that we take what we can get this morning, and then make that decision when Catherine gets back. Maybe she will have the answer that you're looking for. Does that sound ok to proceed. Commissioner Daly: In my opinion, if the other folks have not been notified, I think we violated our own County Code in some respect and we would just about have to allow them time to come in. Am I right there? Commissioner DeWolf: Is there anything about Measure 37, this is a legal question, that requires us to follow our County Code in a particular type of hearing or is the Measure 37 hearings that we have set up their own situation. It is not land use. So, you're talking about a code that requires certain notification. With Measure 37, have we indicated in our process for Measure 37 that we are going to follow certain aspects of our Code in regards to notification. Mr. Pilliod: The Measure 37 procedures ordinance that we adopted is a stand alone ordinance. With respect to notice, the distances, and so forth I believe it is complete. It doesn't rely on, either by way of analogy or by reference, certain land use procedural ordinances of the County Code. Commissioner DeWolf: I guess, and maybe you just answered that but it did not sink in for me, does our Measure 37 process as we have been following it require notice to adjoining or adjacent property owners. Mr. Pilliod: Yes, it does. Commissioner Luke: Can it be sent back from a circuit court because the County did not follow their own procedures? Mr. Pilliod: I would not necessarily draw that conclusion. It would depend upon showing that a person with what notice and opportunity they received, was in some manner prejudiced in a substantial way. I think that we are still operating on the basis that the County Board needs to make a decision within 180 days. We're going to try and shoot for that as best we can. What a court or how a court is going to decide that procedural error should be decided either in favor or the proponent or not, I `d rather not speculate. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 17 of 67 Pages Commissioner DeWolf: Ok. I saw Catherine walking by, let's see what she has to say. Mr. Anderson: I wonder if Mr. Willis would indicate what the proper address would be for the Thornburgh's. Mr. Willis: That's my problem. Having learned of this yesterday afternoon I don't have any information except I was told that they... Commissioner DeWolf: You don't know their address. Mr. Willis: I know my address. Commissioner DeWolf: He is asking for the address that would send mail to the Thornburgh's. Mr. Willis: I do not know. I can try to find that for you quickly, but I don't know Commissioner. Mr. Anderson: We have got a five (5) page list that involves probably an excess of a hundred different properties that were notified of this particular Measure 37 claim. Commissioner Luke: You would have sent it to the owner of record, is that correct? Mr. Anderson: Yes. Commissioner Luke: The owner of record in the assessor's office or the clerk's office wherever that information resides. Mr. Anderson: I can't say. Commissioner Luke: Isn't that a destination resort. Commissioner DeWolf: It is a destination resort so I don't know if it is listed under their name or some other LL... Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 18 of 67 Pages Commissioner Luke: Who is the property listed under? Commissioner Daly: The Thornburgh's. It is not a destination resort yet. Mr. Willis: I can't give you that accurate information. I can try to find it for you. Commissioner Luke: Any ideas who the registered property owner would be. Mr. Willis: All I know is that the elderly Thornburgh's had it, and I believe that its probably been put into some type of estate planning trust for them. I am not even certain of that because I had such little knowledge. Mr. Pilliod: For the record, I have a five (5) page print out, which I am told is lists of the property owners who were sent notice from the Community Development Department on March 17th of this particular claim. I do not find Thornburgh's listed under that name. I would have to check whether or not a particular tax lot number or other corresponding identifier would show that they were sent notice, all be it to a different party. Commissioner Luke: That information you have there shows that there was a pretty good faith effort on Community Development Department to contact every one who was affected, whether they are right next to the line or a certain number of feet out from the line of this hearing or of the initial applicant, I would imagine. Commissioner DeWolf: But as we learned with the Solid Waste issue over the past year, the thing that we do not want to do is create additional problems for either side on procedural matters. When is Kevin back? Mr. Anderson: A week from Monday. Commissioner DeWolf: Do we have a cell phone number? Commissioner Luke: Is he on vacation? I would not carry it. Commissioner Daly: My opinion is we need to postpone this a week or whatever, until we get all this hashed out. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 19 of 67 Pages Mr. Anderson: Catherine will check with Kevin's secretary and see if we can determine the precise logistics that were used to derive this list. Again, given its size, I can only presume it is 250 feet from the easement as best as we could ascertain it. The precise location of the easement is one of the issues in this case. We will do the best we can with staff to determine the actual look up area, which would of have to have been determined to generate this list. Commissioner Luke: Commissioner Daly you can simplify this with a motion. Commissioner Daly: I move that we postpone this till the next available date to hear this which would be the 29th. Commissioner Luke: I am not going to 2nd it. Commissioner DeWolf: Ok, that dies for lack of a second. Mr. Pilliod: If I could, perhaps another approach to follow would be... I don't know whether the Board is convinced that the Thornburgh's or the address that we have for the owner of that property were sent notice. But as I look at the identifiers on the power line easements that were part of the record with respect to the Thornburgh's themselves and trace that back to the tax lot numbers on the mailing list, I find, again I am no expert, but it appears to me as thought notice was sent to the address we had for the Thornburgh's al be it through their LLC. I am not sure this is correct buy Mr. Willis may know. I have Black Trig Eagle Ridge, LLC with the Barnes Road, Portland address. Mr. Willis: I don't know. Mr. Pilliod: We can ask someone in the clerk's office to verify whether or not the identifier in the easement itself that is in the record corresponds with the tax lot numbers on our mailing list. Would that be satisfactory to the Commissioners. Commissioner Daly: When are you going to do that, today? Mr. Pilliod: I can do it right now. Commissioner Luke: We can move on with some of the other claims and you could... Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 20 of 67 Pages Commissioner DeWolf: Well, it does not appear that there's a second vote to postpone this. I would like to open this hearing if that is ok with you guys and get this information from the clerk's office and make a decision on whether we can continue this or not at the end of that. Can we do that? Commissioner Daly: That's fine. Commissioner DeWolf: So, we have a lot of things we're going to decide at the end of this but this has taken a half an hour so far so lets begin with our Staff Report. Mr. Anderson: The claim before you was submitted by Central Electric Cooperative. It involves a, as we've discussed, unlike all the other Measure 37 claims that we've brought before you... Commissioner DeWolf: That's for sure. Mr. Anderson: ...involves an easement as opposed to a discreet piece of property or properties. The area of the easement is shown on... not sure who brought this sign here... we have another one near the back behind it. The amount of the claim is $7.9 million dollars based on the proposed cost of the upgrade. The claimants used the form, paid the fee, and followed the County process. You recall this the desire of CEC to place an upgraded power line across the Cyrus property. The area highlighted in yellow on that may shows the Cyrus property. The diagonal line going through the lower portion of the orange there is Jordan Road. The approximate location, just for an illustration of the Board of that property. The County received a land use request from CEC several years ago for a alteration of a non conforming use to upgrade the power line. That decision was approved by the County, remanded by LUBA and Court of Appeals subsequent to that. Commissioner Luke: I thought that was approved by the hearings officer. When it came to the Commissioners I think we were short of time, so that when you say it was approved by the County I think it was the hearings officer and not the Commissioners. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 21 of 67 Pages Mr. Anderson: That is correct. Following that CEC submitted a revised claim with a different application which was denied by the County. By way of background on this particular property where the easement crosses that property. The waiver or the order in front of you and the Staff Report provides more detail. The effect of the order would allow the claimant to waive land use rules or laws in the intervening time from the date of the easement indicated in the application of 1962 to the present. So, in effect any subsequent proposal or project to upgrade the power line would not necessitate any land use approval or the alteration of a non conforming use that was gone through several years ago. No land use would be required, no building permits would be required for this particular project based on the issuance of the order in front of you this morning. Mark may wish to add any more detail to the Staff Report. Mr. Pilliod: The material that has been received by the County includes considerable number of easements. Some dating to 1962, others more recent. There is a number of County land use decisions relative to the non conforming use. Ultimately, that expansion of the non conforming use was denied under the application of County land use regulations. Which, I think is pertinent and necessary for the Boards decision in this case. Likewise, the land use process resulted in findings again that were litigated both at LUBA and the Court of Appeals that ultimately found that the line that we are talking about has been in existence continually since at least 1972, if not 1962, prior to the adoption to County land use regulations. So, again, you have the continuity of ownership that dates from before County land use regulations were adopted. Again, a critical element for the Board's purposes. The question about whether or not CEC can proceed with Measure 37 claim without the consent of or approval of the underlying property interests, that being the Cyrus' and the Thornburgh's, is a question we do not know the answer to. Certainly they have a distinct legal interest from those of the underlying property owners and they have continuously exercised that interest for quite a number of years. Whether or not that is sufficient for purposes of submitting a claim, I can't answer that. I will say that Measure 37 does not require that continuity, or I should say the compilation of ownership interest to combine in a single claim. It is a County Code provision that allows but does not require multiple owners of a single piece of property to join in that claim. We addressed that in the Staff Report and in the Order. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 22 of 67 Pages I think you have all the information that would bear on both the history and continuity of ownership as well as the County regulations. Certainly each side has presented written materials that offer their own views of what that means and placed some of that stuff in dispute. That's the reason for the hearing. We received this material last Friday and that is part of the reason why it has been difficult to get out a proposed Staff Report and an Order for the Board in a timely fashion. A lot of this stuff is coming in fast and furiously at the last minute. Commissioner Luke: County Administrator is not reviewing as quickly as he needs to. Mr. Pilliod: You can see how much paperwork he has to go through. Commissioner Daly: Mark, I have one question. The issue of whether or not Central Electric Coop is a private or a public utility. Measure 37 says something to the effect that private parties... Do you have an opinion on that because that seems to be one of the issues that the opponents have brought up. Mr. Pilliod: I appreciate that question. The Measure does refer to private party. Of course it does not offer any further elaboration on what that means or who that might exclude. I would venture that government entities, special districts, public entities formed under certain statutes, would not qualify. The fact that we have a utility, an entity that is regulated by the State and furnishes exclusively utility or electrical service in particularly defined area, whether that draws across the line of public entity or private entity, I can't say. I will say that at the time the County was dealing with this non conforming use application, whether CEC would be able to expand that non conforming use... The Cyrus' complained that they should not be permitted to even present such an application because the Cyrus' were a necessary party to such an application and they had not been included. Ultimately, LUBA determined that on account of a Code provision the County had, which excused them from the necessity of bringing in the owner of record. Those entities that happen to have condemnation authority (and CEC happened to have that authority as a utility) were excused from it in that context. Again, in the land use application context, CEC was permitted to submit an application without the approval of the underlying property owner. Simply because they had an easement and as a utility, they had condemnation authority. We could only apply that rational Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 23 of 67 Pages here by analogy if the Board chose to do so. There is nothing in the actual Ordinance that requires, I emphasize requires, that the underlying property owner be made a party to or consent to an application such as the one we have from CEC. Commissioner Luke: Under Measure 37 corporations are individuals. LLC's are individuals, under Measure 37, if they have ownership... We know corporations are. I guess because we have dealt with corporations. Mr. Pilliod: The Measure only refers to sort of an elaborate definition of family member. As part of that definition it includes a legal entity owned by anyone or a combination of those family members. It defines public entity but not in the context in which your asking the question, who's entitled to submit a claim. Mike Maier: Mark, is CEC subject to the open meetings law? Mr. Pilliod: No. Mr. Maier: I don't know if that is a definition of what's a public body but if they are not, I would assume they have a little bit different arrangement than the counties, cities, school districts, or special districts. Mr. Pilliod: I think they have submitted an argument. The position that they are privately owned cooperative and have been continuously. But, they do have certain obligations to the public, not unlike the obligations of say the water district or ... well, water district for example which is a public entity. I am sorry if I can't give you a precise yes or no. Just sort of talk around that answer. Commissioner DeWolf: Ok, go ahead. Mr. McLean: For the record, Central Electric Cooperative does not have any disagreement at all with the proposed Order that is in front of you. For background, I did want to refer back to that map. I have extra copies for each of the Commissioners. That map shows the subject of this Measure 37 claim which is GEC's Jordan Road line easement which dates back to 1962. The subject of the claim is an easement, just to avoid any confusion; there are no Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 24 of 67 Pages underlying property owners with respect to our easement. This is an exclusive, private easement that is owned by nobody else but Central Electric Coop. Commissioner Luke: So, commonly a lot of easements allow the water lines, phone lines, cable lines and those kinds of things. Your reason is it is strictly power lines, is that what you are saying. Mr. McGean: Well, it is strictly owned by Central Electric Cooperative. It is exclusive in the since that we can prevent other people from interfering or trespassing on our easement. Another important thing to note is that, there was some discussion about the public private question, there is no doubt that CEC is a private land owner in this situation. CEC is not subject to the public hearing laws that the County Administrator queried about. Mr. Gonzales here can answer any more questions about the corporate formalities of CEC. But CEC is here with their claim that they have presented through their officers and Mr. Gonzales, the President. Commissioner Luke: Are they a corporation? Mr. McGean: It is a, yes. Commissioner Luke: Registered corporations, State of Oregon. Mr. Gonzales: Mr. Commissioner, yes it is. It is a corporation within the State of Oregon. We also, as another defining factor.... Commissioner DeWolf: Can we get your name for the record. Mr. Gonzales: Al Gonzales. Commissioner DeWolf: Thank you. Mr. Gonzales: As a defining factor we also borrow no money from the Federal Government or State Government. We borrow private funds to operate the utility. Commissioner Luke: CEC pays property tax? Mr. Gonzales: We pay property tax. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 25 of 67 Pages Commissioner Daly: I have a follow up question real quickly. The members of Central Electric, the people that receive power from you, are they part of that corporation, stock holders. Mr. Gonzales: They are members of the cooperative. Member/owners of the cooperative. Commissioner Daly: Member/owners. Mr. Gonzales: That is correct. Commissioner Luke: You continue, I continued to receive checks from whenever you made a profit, whatever that meant, after I was no longer receiving service from the corporation. Mr. Gonzales: Patrons capital is allocated in each and every calendar year and we keep a record of those owner/members for each of those years. When we have the financial where with all to pay those patron capitol back, we do pay that back to prior members of the cooperative, as well as current members. Commissioner Daly: This raises one thing. I am a member of the Central Electric Cooperative. I receive my power from them. I just want to put that on the record, if that is a potential problem. Commissioner DeWolf: The only conflict is if you felt your decision in this matter would have a financial impact on you or any immediate member of your family. If this resulted in a nice big profit and you an extra 50 cents on your annual check, those checks are very small to my recollection. Commissioner Luke: Two to ten bucks. Commissioner DeWolf: Between two and ten dollars. So it might go to ten dollars and 50 cents or something, I have no way of knowing that. But that would be the question for you Mike, is if you felt that that creates a financial conflict of interest for you. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 26 of 67 Pages Commissioner Daly: The amounts of the checks that I receive every year, it probably would not. Mine was substantially more than ten dollars but I use a lot of power to. Commissioner DeWolf. Ok, continue please. Mr. MCGean: When CEC submitted its claim pursuant to Measure 37, which authorizes claims for any interest in property and not just fee interests, such as you might hear arguments here to the contrary this morning. It was for the entire Jordan Road line from end to end that you see displayed on the map there in red. The white part is the 4.65 mile stretch that actually crosses over some of the privately owned properties. The yellow portion is actually BLM property that is not subject to Measure 37 or the Counties land use restrictions which we are asking compensation for. So, from end to end, the Jordan Road line has existed in this form since 1962. There has been a small change in 1972 which I am sure you will hear about but, the information that is in front of the County now shows that CEC has continuously owned its easements since 1962 for the continuous portion of the Jordan Road line which is in front of you this morning. Commissioner Luke: You've owned the easement, but when was the line built. Mr. MCGean: The line was built in 1962. Commissioner Luke: Right after the easement was taken care of. Mr. McLean: Correct. In 1972 a portion, in 1972 before any of the zoning restrictions came into effect, was actually rerouted along a small portion of the Cyrus property at the Cyrus' request. It is just this small "L" shaped piece right there. Commissioner Luke: Is that near the pond. Mr. McGrean: Pond? I am not certainly actually. Even that 1972 reroute was built under the authority that CEC had and still has, under a blanket easement from 1962 granted by the Cyrus' to CEC. So, we have continuous ownership of this easement since 1962 regardless of the slight change in 1972. That is the property interest that is in front of us here. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 27 of 67 Pages To some extent, this analysis has already been done before through the non conforming use application that was litigated a couple of years ago that you probable remember. The significance of that is that the non conforming use designation which the hearings officer found did apply to CEC subsequently approved by the Board and affirmed by LUBA in fact, recognized that CEC's Jordan Road line, this exact easement that is mapped out on this map, predated all of the zoning restrictions that are the subject of our claim this morning. The only issue that was not resolved or that prevented the Jordan Road line from being built after those land use proceedings was the alteration modification. For all intense and purposes, the decision of the hearings officer which was affirmed by LUBA is a final controlling decision that CEC has in fact owned this easement in this Jordan Road line since before any of these County regulations took effect. We have been down this road already and there won't be any meaningful distinction that you hear from any of the opponents between this process and the non conforming use verification which has already been done. It is no longer in dispute basically. I am just going to summarize because the merits of the claim have been established. We have continuous ownership since 1962 of this particular easement. It is a private ownership interest subject to Measure 37. So, we qualify. We predate zoning. This has been recognized through the non conforming use process and by the record that is in front of you. The easements by the way that we submitted with our claim in our initial appendix, was the exact same exhibit which was blessed so to speak by the hearings officer and you body and LUBA. That was the package of easements that we submitted with our non conforming use application. We supplemented that with the 1962 blanket easements which are still in effect, which CEC has never given up. Which establishes the initial ownership date of this property interest by Central Electric Cooperative. Finally, we have established that the easement has been diminished by these regulations. We're unable to modify this Jordan Road line the extent that we need to for safety and to continue to deliver power to the Sisters/Black Butte region. Although it is not really an issue, the County Counsel has given you a basis for why there has been some reduction in the property value due to that. So, we have met our burden in this case and Central Electric Cooperatives Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 28 of 67 Pages claim passes on the merits. On behalf of all the members, I would just respectfully request that the claim be approved. Mr. Hickman: I am here for Keith and Connie Cyrus who are one of the many private property owners along this 4 plus miles stretch of easement. There clearly are underlying property. owners. The Cyrus' own fee title to the property that the easement covers. As to the other property owners along this easement, that's truly not correct. There are underlying property owners and our clients are one of them. For the record we continue to rely on all prior filings that we have submitted to the Commissioners. I noticed that we have one omission. We included the LUBA decision but we only gave you the odd numbered pages. I do have a complete copy that I would like to give you later to make the record complete. There are six (6) reasons why GEC's claim fails. Each one of them is sufficient on its own. 1. CEC did not comply with Deschutes County Code, chapter 14.10, governing Measure 37 claims. 2. CEO's property interest post dates the County Code provisions at issue. There is nothing to waive. 3. CEC is a public entity, and can not benefit from Measure 37. 4. GEC's development plans are not feasible. 5. CEO's development plans are not necessary. 6. Granting GEC's claim would turn Measure 37 on its head. Number one is the simplest one. CEC did not comply with Deschutes County Code, chapter 14.10. The Code provides in section 14.10.040k, and I quote verbatim, "the claim form shall be signed by all owners of the property." Uses the word shall. We all that shall is mandatory, it means that something must be done. If there is any doubt it's defined at County Code, Section 1.04.010. Commissioner Luke: You are suggesting that every member of the Coop needs to sign it? Mr. Hickman: No that every one of the property owners, underlying property owners, have to sign this claim. I'll explain that more later. The administrators report acknowledges this requirement, that it must be signed, but then implies Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 29 of 67 Pages that their requirement can be waived so long as the purpose is met. In 14.0 1, shall is mandatory. It can not be (unintelligible word) for any reason. It is undisputed that the owners have not signed the claim. Secondly.... Commissioner DeWol£ I want to understand this because the two sides that I think that I am hearing are that CEC would claim that they are the exclusive and sole owner of the easement. In which case by there signing this, there done. Your position would be that because there are underlying owners with fee title to the land beneath that easement, that the requirement for each of those property owners would be a requirement to comply with this. Is that what I am understanding? Mr. Hickman: Correct, in two points. One, the easement covers property that is owned by the Cyrus' and other property owners. Two, every easement is composed of two parts; there is a dominant estate and a servient estate. In this case CEC owns the dominant estate and the Cyrus' and other owners own the servient estate. So we are looking at a property interest that is made up of two parts. Commissioner DeWolf: Ok. Mr. Hickman: If we proceed with the claim that is signed by one half but not the other half, you're bound to have conflicts and you're bound to have disputes. Thus, it is an intelligent requirement to require all owners to sign on to the claim. That's why shall was used. Commissioner Luke: That is for those attorneys in those black robes to decide, I think eventually. Mr. Hickman: I will move on to the second point. GEC's property interest postdates the County Code provisions at issue. Counsel has asked for a meaningful distinction between the non conforming land use decision and a Measure 37 issue. We know there's differences. The key point here, Measure 37 looks at ownership/property interests. Non confirming use looks at the use. It does not matter under Measure 37 how long a particular use has been applied. The transfer of ownership after the regulation defeats the claim. That is a harsh result, perhaps, in some cases but it is undisputed that that's the law. If you sell Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 30 of 67 Pages your property to someone after the regulation, they cannot assert the Measure 37 claim. That is exactly what we have here. Most of CEC's easements were granted in 2001, long after the disputed code provisions. There is nothing to waive. The 2001 easements are not in addition to the 1962 easements, they do not supplement the 1962 easements, and the 1962 easement in those cases no longer exists. Easement language is perfectly clear on this. We've attached them to exhibit 4 to our objections. As an example, the Thornburgh easement which was granted on July 11, 2001 to CEC and I quote "quit claims and releases the 1962 easement." That means the 1962 easement no longer exists. It has been replaced. September 17, 2001 releases the 1962 easement. Destroyed it. The Eagle Crest of November 13, 2001, did the same thing. The same is true with the Carter easement, the Sathers easement, Krutz, Nutten, Pray and Griddley easements. We have attached all of them to our submissions. The language is clear. They destroyed the 1962 easement. So we have to go off of a date of 2001. Regulations were adopted before that time. There is nothing to waive. There are portions, to be absolutely clear, there are portions where the 1962 easement still exists but this creates a gap in the line. Could not be granted for all parts of it makes it not feasible for their plans. Commissioner DeWolf: Is there any portion of what CEC would propose to do that we would have any land use authority in. Do they get permits from us for an expansion of this line? Mr. Pilliod: I think Tom answered that question. There does not appear to be any requirement for say a building permit, if that is appropriate. Commissioner DeWolf: I guess my question that comes back to you is if CEC has been in continuous ownership of an easement and had this line in place since 1962, what is the objection if there is nothing the County is going to do in the terms of a land use permit. Mr. Hickman: Because it was not continuous ownership. In 2001 the 1962 easements were extinguished and replaced. Then we go back to the non conforming use which has already gone up to the Court of Appeals and back down again. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 31 of 67 Pages Commissioner DeWolf: Ok, I am just making sure that I am clear. Mr. Hickman: The third point. CEC is a public entity and cannot benefit from Measure 37. It is undisputed that Measure 37 and Deschutes County Code, Chapter 14.10 do not apply to public entities. That's not disputed. The dispute is over whether CEC is public or private. The answer is clear. CEC has the power to condemn. That is they have the power to take private property for public use, and for public use only. CEC is the only provider of electricity in its exclusive territory; it is the only place for the public to turn. The Deschutes County Hearings Officers decision of August 25, 2003, which claimant relies heavily in page six (6) states, "as an electric cooperative CEC is a public entity." This County has already found that CEC is a public entity. LUBA specifically found that CEC is, and I quote "a public utility under Deschutes County Code, Section 22.08.010(b)(1)." To the Court of Appeals, CEC replied on ORS 757.020 which only applies to public utilities. After arguing to all these bodies before that it is a public utility, CEC cannot come here now and claim that it is not a public entity. Commissioner Luke: Question. If this was Pacific Power, which in effect is a corporation, would you be making the same statement about them that they could not file a Measure 37 claim. Mr. Hickman: I do not know enough about the nature of Pacific Power. Commissioner Luke: Because even though the difference between and investor owned and a client owned, for one of a better reason, they are both corporations under Oregon law. They function as corporations under Oregon law. Mr. Hickman: I don't know but I imagine that that would certainly be raised by anyone opposing their claim. Commissioner Luke: Ok, I just asked if you had a thought on that. Mr. Hickman: Part of my point here is that it doesn't matter factually what it is so much, as it matters what has already been established through the County, through LUBA and through the Court of Appeals. In legalese it is called a estopple. You can't go representing to one body that you're a public utility, benefit from that statement.... Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 32 of 67 Pages Commissioner DeWolf: We understand the term estopple very well. Mr. Hickman: So, you understand the term. You can't make one representation and come back and the opposite representation. Commissioner DeWolf. I did not say that I understood what it meant, I just have heard the word a lot. Mr. Hickman: Well, let me explain. Commissioner DeWolf: We're kidding. Go ahead and explain. Mr. Hickman: The same exact party. You have contradictory statements and you have a prior benefit from the other statement. Two years ago, CEC came to Deschutes County and said, "you have to let us enlarge the Jordan line because we are a public utility." Now, their coming and saying "you must allow us to enlarge the Jordan line because guess what, we just realized that we are actually private entity." Don't fall for it. CEC was right the first time. It is public, and either way, as a matter of law, CEC cannot change its position now. Number four. CEO's development plans are not feasible. The Administrator's report that was submitted states, ... Commissioner DeWolf: Can I just interrupt on this one and again just in the matter of time. I don't think it matters to us whether their development plans are feasible because that's not before us. Mr. Hickman: It actually comes in under Deschutes County Code 14.10.100(g)(??) Commissioner Luke: We are not being asked to waive that though, are we? Commissioner DeWolf: What we're asking, am I incorrect here, this is not any sort of land use approval, it's not guaranteeing that CEC can do anything, it is just a waiver of... Mr. Anderson: What you've done to now, up until now, with all of the waivers on all of the claims, is set the ground rules for review of a subsequent application. In this case you would be saying basically the rules stand as there Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 33 of 67 Pages were in 1962. So, regardless of the subsequent use, whether it's a larger power line or a smaller power line, is irrelevant to the language of your waiver. I th81nk the presented issue, Mark can correct me if I am wrong, in terms of the justification or rational of issuing the waiver is based on the ownership. Mr. Hickman: For the record, if I could, because we do expect this to go on appear, that provision of the code that I cited, that is one of the grounds to deny a claim is if the plans are not feasible even if there is a waiver. That's our position here. Commissioner Luke: We've had Measure 37 claims come in that wanted to put an extraordinary number of houses on a piece of property which upon its face according to the regulations in affect at the time they owned the property, was not feasible. We do not look at that. We look at ownership. Commissioner DeWolf. For the record, it's dully noted for the record. Mr. Hickman: Our position is for the ten (10) foot easement through the Cyrus property is physically impossible, could not put it there. Moving on to number five. I'll tie this in because I expect a similar response. The development plans are not necessary. The reason I bring this up is because CEC claims enlargement of the line is necessary to serve its customers. It seeks sympathy from the fact that it has an ever growing population base that it must serve. Two points. The Court of Appeals and LUBA both found that this was not necessary. Second point; this is a public use argument. They are trying to plan over the effect on the public. That proves that CEC is trying to use Measure 37 for a public use. That defeats the claim outright. Number six. Granting CEC's claim would turn Measure 37 on it's ear. Commissioner DeWolf.- Is that a legal phrase? Mr. Hickman: No, not technically. Commissioner DeWolf. Ok. Mr. Hickman: But it is a policy argument. Granting CEC's claim would allow a public utility, or at least an entity that has represented itself as a public utility, Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 34 of 67 Pages to profit at the expense of private property owners. Ask any one who voted for Measure 37, that is not its purpose. It was to provide relief to private property owners, not punishment. Those who supported Measure 37, I believe, would be rightfully outraged that it is being used by a public entity to past its costs to private property owners. So, respectfully, we ask you to deny CEO's claim. I'll rap up. Claim fails for six solid reasons; did not comply with chapter 14. 10, CEC's property interest post date the County Code provisions at issue, CEC is a public entity and can not benefit from Measure 37, CEC's development plans are not feasible or necessary, and finally, granting GEC's claim would defeat the purpose of Measure 37. I would like to save a little bit of time for rebuttal if necessary. Commissioner Luke: I am glad to finally find someone who actually knows why the voters voted for Measure 37. Commissioner DeWol£ None of the rest of us do. So, rebuttal by the claimant. Commissioner Luke: I think there is other people. Several people talking over each other — unintelligible words. Commissioner Luke: You can't testify because they did not submit anything in writing. Mr. Pilliod: Let me address that, ok? Couple of things. First of all, my staff has checked with the clerk's office and they list that I previously referred to, the mailing list, makes reference to Trail Crossing Revocable Trust at Rural Route 1, Box 330 Terrebonne. That corresponds with the address that we have on record for Everett and Eva and Ambers Thornburgh. So it appears that the County did provide notice to the owner that we have in our records for the property that the Thornburgh's are represented on. I assume that Mr. Willis's is here representing a property owner entitled to notice. The reason I say that is because the Code does permit such a person to present oral comments at the hearing. It is not limited to those who have previously submitted written comments. Assuming that Mr. Willis does Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 35 of 67 Pages represent the Trail Crossing Revocable Trust on behalf of the Thornburgh's, he could testify. Commissioner DeWolf. Is that accurate? Mr. Willis: That is Commissioner. Commissioner Luke: Do you represent all three of the named owners or one. Mr. Willis: At least the Trust. I apologize for having such poor information. want to point out a couple of issues to you. We will adopt what the Cyrus's have said. Mr. Willis: We adopt what the Cyrus' said for their positions. There's some problems here. But I want to underscore the differences between the 2001 easements that we taken. That has the term in there release. Those old easements are gone. I would ask you to consider this, what CEC is really asking you to do is make some legal pronouncement that the old easements also exist and they are asking you to inter an order that will allow them then under a State statute to exercise rights under the old easement. Because you have no authority to issue that order if the new easement, if I am correct, and the release of the old easement extinguished it, which I am satisfied that it did. Being in that posture, you are a governmental entity who are being asked to make some legal pronouncement that will allow, according to CEC to go onto my clients property, Thornburgh's, and add additional things into the ground that you would not be allowed to let them do under the current state or your ordinances and this litigation, beyond which they have now. All I am saying is that I think you have missed a whole bunch of stuff. You may be walking right into a whole series of inverse condemnation claims by those underlying fee owners because of what you are doing. You don't have half a choice and I don't envy you that. I have a little sense though you think it is a lot easier to give up on fighting CEC and their Measure 37 claim and not risk the Counties treasury. Commissioner DeWol£ We may have thought this was easier an hour and half ago, I am not sure that we would think so now. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 36 of 67 Pages Mr. Willis: Commissioners, I just point that out because I think you are running a heck of a risk here. I even challenge the ability this commission has to make that legal pronouncement on those documents of that easement. I don't think you..... Commissioner Luke: Since you brought it up, the risk to the County treasury is from the actual applicant from the Measure 37 claim. Anything else is decided in court. From what I understand it is a very little risk to the County treasury. Mr. Willis: Commissioner Luke what I am pointing out is, and again I apologize for not having this figured out better, I am not that fast from yesterday afternoon. I look at this and I do a lot of inverse condemnation work. I look at this as saying gee, the Thornburgh's and Cyrus's and the other people, how many owners on that big line down there. If the County Commissioner just entered an order saying that they are going to because of them accepting the position of the old 62 or 61 ordinance or easement still apply, and you are wrong, the effect of your order is going to let CEC have the legal authority to go in there on that land they otherwise could not do. Commissioner Luke: That's not true. Commissioner DeWolf: Can I ask you a question then about that? If going along with what the other gentleman just spoke to, acknowledge if its both of your position that this is a public entity and they have the right to condemn, then their alternative would be to condemn that property and do what they want to do anyway. Mr. Willis: Then they will be. But that is not what they are asking you to do. Commissioner DeWolf: I understand, I just wanted to make sure I understand what your saying. Mr. Willis: The sad point though is their position overlook the fact then they put you right back in the box where it isn't an easy thing for the County to escape potential risk. It may be horrendous. That's all I want to point out. Commissioner DeWolf: Ok. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 37 of 67 Pages Mr. Willis: Then secondly, please look at that language in that easement they took in 1971 or, the later easement. That was drafted by the lawyers that represent CEC. Those guys know what they are doing. They and to release that, that was the deal the people got to get the new easement. The old one was gone. That's it. I am so confident we're correct on that fact that they don't qualify on your Measure 37 because they did not have a right in place to argue about... The rules were already in place. But then the other point is this and this comes out in my condemnation work and dealing with values, the only value argument I see in their application, is based on some higher cost to do a new project. They look at those costs. That is not competent evidence in front of you in fact, CEC since Mr. Ramirez has testified it is a corporation, the evidence law is very clear on those type of value things. There is a case called ODOT vs. Assembly of God where if I had an individual owner in here that could express opinion to you about the value of their land, corporations are not permitted to do that. So, I want to point out you have no competent evidence in front of you about a diminish in value which Measure 37 requires you to have before you can allow a claim. Commissioner DeWolf. Thanks. Yes sir. Matt Cyrus: I just want to clarify a couple of minor points. First of all there has been a lot of discussion about the non conforming use and the continued use of the line as evidence of use since 1962. I want to clarify that non conforming use was actually referring to the actual line itself and had nothing to do with easements. The easements on 75% of the line were actually extinguished by the 2001 and replaced by the 2001. For Measure 37 purposes its a 2001 property interest because the 62 went away. The line itself from a non conforming use standpoint has been in place since 62 even thought it has not been used since 1980. It was actually abandoned for transmission of power when it was replaced by the 126 line, which is a whole other issue that we don't need to get into here. The other thing I wanted to clarify is that the 1972 line was not part of the original Jordan Road line. The 1972 line was built as a spur off the 62 Jordan Road line to serve Black Butte Ranch. In 1990 a portion of the 1962 line was actually removed in favor of a new line that was constructed that ended then that portion of the 72 line replaced the 62 piece that was removed. So, in fact the line has moved around, it has been changed, the easements have not been Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 38 of 67 Pages consistent. There are quire a few holes in the claim. The property interest for the majority of the line was extinguished with 2001 easement. Commissioner DeWolf: Thanks. Anyone else who thinks they have standing on this? (No one replied) Ok, opportunity for rebuttal. As long as there is no new information, this is going to be the last testimony on this matter this morning. Mr. McGean: Thank you. I am sure that the Board has already recognized this but the 2001 easement issue is really a red herring for this Measure 37 claim. There really is no dispute of continuous ownership here by CEC of this easement since 1962. This is not the kind of case where you have a transfer from one family entity to another or from a buyer to a seller or any of the other kind of situations that the Board has seen where it can sever a Measure 37 claim. We have, CEC owned this easement in 1962, it still owns it today. The 2001 easements that the Cyrus' and the Thornburgh's referred to do not do anything to affect those 1962 easements. Those 2001 easements are gratuitous, they are on top of the 1962 easements. This language about quit claiming or releasing, well CEC did not quit claim or release anything in those 2001 easements. They did not sign those 2001 easements. Those were granted by the Cyrus' and the Thornburgh's to CEC in 2001. So when you see these exhibits that the Cyrus' and the Thornburgh's are now saying somehow affected some kind of transfer that pushes the clock back to 2001, what you are really seeing is a grant of an additional on top of the 62 easements. Commissioner DeWolf: Were the 1962 easements signed by CEC. Mr. McGean. No. Commissioner DeWolf: So there granted in 62 and in 2001. Mr. McGean: I guess my point is, is that CEC would of had to have given something back. They would of had to grant back the... Commissioner DeWolf: CEC still has in their possession the 1962 easements. Mr. McGean: Correct. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 39 of 67 Pages Commissioner DeWolf: So, the 2001 ... What your claiming is that CEC has both of those and they are both fully in effect. From the Thornburgh and the Cyrus' position that they can, in those say that they quit claimed. What your position is, is that CEC did not acknowledge that quit claim release. Mr. McGean: The Cyrus' and the Thornburgh's can't quit claim CEC's 1962 easement for them. Commissioner DeWolf: So, your position is that CEC did not quit claim or release any interest that you had established since 1962. Mr. McGean: Yes, absolutely. We still have those 1962 easements and their actually still in effect along this Jordan Road line. Even if those 2001 easements had quit claimed the 1962 easements, all it would have done would have been to... Blanket easements, if I have not addresses this already, that means that the easement is described as the property owner's entire lot. So it doesn't specify 40 feet or 100 feet running from this point to another. It's an easement across the entire lot. So it is referred to as a blanket easement covering the entire lot. If there had been some kind of effective quit claim by CEC in 2001, the effect of that for this Measure 37 claim would be to shrink the size of the easement from the blanket easement to the easement that is still, has always been, used by CEC for the Jordan Road line. So, you see, you still have continuous ownership form 1962 to the present of that strip. Even if that 2001 deed had some kind of affect of quit claiming the rest of it. Shaving off, as it were, everything that wasn't directly below the Jordan Road line or within the scope of that 2001 easement. We still have the same owner from 1962 to the present of the same dirt for this Jordan Road line. So that really is just a red herring that is just meant to confuse and nothing else. Commissioner DeWol£ Ok. Mr. McGean: I think that the public entity question has been resolved enough but I would invite you to ask any questions that you have to Mr. Gonzalez. Commissioner DeWolf: No questions. Mr. McGean: With that said, I would just ask that the order be approved. Thank you very much. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 40 of 67 Pages Commissioner DeWolf: Ok, Mark. Mr. Pilliod: Could I ask a question. Perhaps the applicant would care to respond to comments about the evidence submitted as to reduction in value. Should the Counties land use regulations apply to their proposed use of this property. I believe that was an issue that one of the attorneys mentioned. Mr. McGean: What I heard the Thornburgh's argue is that the rules of evidence should somehow apply here for our proceedings. The rules of evidence being the rules for circuit court be applied to this proceeding. Obviously we're outside of that. As far as the reduction in value, we have a affidavit that is on the record that's signed by one of the chief engineers for CEC, M. L. Norton, who has testified competent testimony for the record that the affect of the restrictions right now on Jordan Road line have made it impossible for CEC to upgrade and modify this line as necessary. The measure of value of this would be the cost of actually trying to burry the same Jordan Road line underground. When I say trying to... I mean just that because there is no guarantee that that would be an effective solution for us. That is an estimate since we have kind of a unique property interest here. We thought that that was the best measure of damages to support our claim in this case. Commissioner DeWolf: Ok. Commissioner Luke: Is this a primary line. Mr. McGean: Transmission line. Commissioner Luke: I remember when Pacific Power was getting ready to run theirs out to Deschutes River Woods, I sat through a lot of hearings that talked about burring a primary underground sometimes creates more problems that it solves. Mr. McGean: That is absolutely correct. Mr. Pilliod: One more question. I wonder if the applicant could confirm my understanding that the line that we're referring to, the Jordan Road line, as evidenced by the line that was established following acquisition of the 1962 easements has been continuously operated as a transmission line along that full route since 1962. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 41 of 67 Pages Mr. Gonzalez: That line is a 69,000 volt transmission line and it was originally installed to serve the community of Sisters and the adjacent areas. We have used it from that point, the point of its inception, to today as we sit here. Now and additional line because of the growth was also built down Hwy 126. The time that that line was built, we installed a switch and we had an open point on that switch. What that relatively means is that the 69 KV line down Jordan Road was energized up to that switch, but it was not really feeding anything. It was there for a backup redundancy purpose which every utility that is experiencing large growth has. You don't just have one source or one path to serve, you have multiple sources if you can do that. Commissioner Luke: That's part of loop system. Mr. Gonzalez: It's part of the loop system, absolutely correct. Unfortunately that 69 KV line, the Jordan Road line now, if we were to loose 126, could not support all the load in that community today. That is the reason we are here. Believe me, if we did not have to do this we would not have gone through this process and we would not be spending millions of dollars of our member's money to build that line. It is just absurd to think that we are doing this just because we are having fun, that is not the case. Commissioner Luke: Can I ask you why you have not condemned it. Mr. Gonzalez: Condemnation... Commissioner Luke: If you don't want to answer on the record you don't have to. Mr. McGean: I don't think that that would be appropriate at this point given the concerns that ... Commissioner Luke: That is what I said, if you don't want to answer that, it's fine. I understand. Commissioner DeWolf: Anything else Mark. Mr. Pilliod: I do want to address one point that was made early on about the definition or the sufficiency about an application. The word we refer to as owner. Counsel for the Cyrus' made reference to the Code section 14.10.040(k) Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 42 of 67 Pages which contains a signature requirement that the claim be signed by all owners of the property. The Code itself does not contain a specific or a separate definition for the word "owner." It has a definition for "property owner" which means a person with recorded interest in private real property including holders of less that fee simple interests, lease hold owners, and security interest holders. The Board would have to, if it were to allow this claim, it would have to conclude that CEC along without separate signature of the Thornburgh's for example of the Cyrus', qualifies as an owner. I would point out a couple of other provisions in the Code offer some, maybe flexibility in this respect. In 14.10.040(d), under proof of ownership, it says if the property is not in the exclusive fee ownership of the claimant then the County may require the claimant to certify that the claimant has the consent to proceed to with the claim on behalf of all other owners, including co owners and all security interests in the property. The may I emphasize is discretionary, not mandatory. I think I have one other point. I also would point out under section 14.10.030(b), it says in part the Administrator may allow the acceptance in processing of an incomplete claim upon the preliminary determination that the particular claim appears to be claim eligible, even in the absence of all the required data. Commissioner DeWolf: Which we have done repeatedly. Mr. Pilliod: Yes, we actually use that fairly regularly, yes. I would submit that we do have a sufficient claim that has been submitted. Obviously, CEC has to satisfy the terms of the County Code as well as Measure 37 as an owner and I just wanted to try and clarify that one point. Commissioner DeWolf: I guess the question I would have for Legal Counsel, for you Tom, and for Mike as well is if there is anything you have heard today that would alter your recommendation in this matter. Mr. Pilliod: Speaking for myself and my staff, no I haven't. Commissioner DeWolf: Tom. Mr. Anderson: No. I think it really boils down to the ownership issue and going back to 1962 and we defer to Legal's position on that. Commissioner DeWolf: Ok. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 43 of 67 Pages Mr. Pilliod: If that's the one that was presented this morning, yes. Commissioner Luke: That is part of Monday's stuff. Commissioner DeWolf: I am going to defer to the two of you at this point referring to Commissioner Daly and Commissioner Luke.) Commissioner Daly: You going to close the hearing? Commissioner Luke: It is not a hearing is it. Mr. Hickman: If I could just rebut additional. Commissioner DeWolf. There is nothing new. Mr. Hickman: Now their claiming that there not a certain (unintelligible word) under the 2001 easements. Commissioner Luke: You already made that point. Thank you. Mr. Hickman: May I explain. Thirty seconds, please. Commissioner DeWolf: Do you want to hear what they have to say Mike? Commissioner Daly: Yeah, I want to... Commissioner DeWolf: If any one of does, I will refer to that. Go ahead. Mr. Hickman: Thank you very much. The position that cited out rebuttal was that CEC has never quit claimed or release anything, yet at the same time their claiming rights on these 2001 easements. You cannot assert a right under the document and deny the liabilities under the document. If CEC is saying that these 2001 easements don't have effect, we would like that to be on the record, we would like to know their position. Commissioner DeWolf: I am not an lawyer. The way that I understand this is that an easement that was granted was a one way street from the property owners to Central Electric Cooperative. That Central Electric position was there was nothing in return that says we're giving up anything, that they still Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 44 of 67 Pages have in full force and effect their position that 1962 easements as well as the 2001 easements. So, in that case, again, I am not a lawyer here, but my understanding is that if I have... exercising my rights you gave to me, even if I give nothing to you, I can still exercise my rights. Mr. Hickman: The consideration for the 2001 easements was the release of the prior easements. It's clearly recited in easements. Commissioner Luke: That is going to have to be decided somebody a little higher that us, I think. Mr. Hickman: Thank you. Commissioner DeWolf: Ok. Mr. Willis: May I add one point to that Commissioners. Five seconds. Commissioner DeWolf: Sure. Mr. Willis: Counsel for CEC ignores the term release in there. They drafted it. Common legal parlance if they drafted any ambiguities or construed against them. Then... Commissioner DeWolf: Do you have any document that is signed by CEC in which they grant that release. Mr. Willis: They drafted the document and they accepted the benefits of the document and I dare say that if we had some discovery opportunities we'd probably find out that the persons who presented it to these people who owned those underlying fee interests were told "were going to replace the old easement with this new one." The old one is gone. If you look also... Commissioner Luke: Again, what they were told and what was in writing are two different things. Much like the first case we had where the lady said I intended to keep the life estate, but we actually did not put it in legal terms. We can only deal with what is in writing. Mr. Willis: Also, look at paragraph four (4), this is a record of one of the affidavits that is already in there, but please look at the paragraph four (4) Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 45 of 67 Pages where the grantor rights under the new easements (that would be CEC) it still says grantor shall have the right to use the land subject to this easement. It does not say the others, that was released, and it also says the grantor, the underlying fee owner can use it for any purposes allowed that does not interfere. So, there really are, and when they would not answer the questions for you on the record about why they would not condemn, be very careful. I think CEC may have the idea they are going to have you in the bag if there's a bunch of inverse condemnation cases over this. Rather than them condemning and paying those rights. That's why I point out, they don't have corporate value information in front of you to make this decision on. They could have condemned it. That would have been a far different test and it's just not here. So, thank you. Commissioner DeWolf: Thanks. Commissioner Luke: Are we done taking testimony. Commissioner DeWolf: I am going to ask the two of you what your pleasure is this morning. Commissioner Luke: It is not a pleasure. I think both sides have had an ample opportunity. From looking at the size of the record have taken advantage of that opportunity and put as many things on the record as possible. That's their right and I think they have done a good job. I am ready to move forward. Commissioner Daly: I'll move forward. Commissioner Luke: There is not question when I started reading this that the final decision on this is not going to rest with Board of Deschutes County Commissioners. That the attorneys and the black robes will be making the final decisions on this is very obvious. One side or the other, no matter how we rule. I think Staff and the County Administrator have done a good job of analyzing this, I agree with their recommendation and I would move Order No. 2005-069. Commissioner Daly: I am not going to second. I guess I disagree on a couple of points. I have read the language in here on those easements that were extinguished. It is very clear that they extinguished, the language says that the old easement was extinguished with the quit claim to the other. And also I have a problem, I am still not convinced that Central Electric Coop is a private entity. I think it is a public entity based on the condemnation rights and things like Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 46 of 67 Pages that. I really don't think that this is a Measure 37 claim and that is my feelings so, my vote would be no. Commissioner DeWolf: Based on the reservations that were expressed at the beginning, I am concerned that it may put the County in an acquired position if I were to take a position on this. So, what I would like to do now is put this on our agenda for a decision for Monday morning and allow the attorney who questioned my bias, prejudgment, or prejudice to forward any information from your perspective on that to our County attorney and then you also to put your thoughts on that matter to our County attorney (to Mr. McGean.) Then Mark, you and I can discuss this first thing Monday morning about my voting in this matter and what that potential does to the County. What do you think about that. Mr. Pilliod: Well, I think that that's fine assuming that the Board has no quarrel with continuing the motion, keeping it open, tabling it if you will until the Board can reconvene on Monday. I would suggest that if you're asking Mr. Willis to prepare some support for basis on which to challenge your ability... Commissioner DeWolf: I just don't want this to be another thing that ends up in circuit court if we can avoid that. Mr. Pilliod: Sure, I understand. What I would assume that what you would also expect is that Mr. Willis would share that with counsel for CEC. Commissioner DeWolf: Yes. And so today is Wednesday, in order to give everybody time, can you prepare whatever it is that your concerns are by tomorrow. Mr. Willis: Somebody will have to if we are ordered to. Commissioner Luke: Before we go down that road to far, what I heard him say was he thought it was a conflict of interest for the firm. Not a conflict of interest, well perhaps a potential conflict of interest for the Chair, but a conflict of interest for the firm and whether the ethics of being an attorney and how an attorney operates were the problem and not so much the relationship between the attorney and the Chair. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 47 of 67 Pages Commissioner DeWolf: The challenge needs to state facts relied upon by the party to a Commissioners biased, prejudgment, personal interest, or other facts from which the party has concluded that the Commissioner should not participate as they are not impartial. So, the fact that I have used since 1981 the law firm that is representing Central Electric Cooperative, even though I don't know that we have actually meet ( speaking of Mr. McGean.) I have used other attorney's in this firm. I don't believe that I have biased, prejudgment, or personal interest, or other facts that would conclude that I should not participate because I would be partial one way or another towards the claimant. Mr. Willis: Commissioners, the only facts I know that was reported to me that specifically it was Martin Hansen, was the attorney that was representing you personally. I believe that to be true but no one has ever, Martin's not told me that and you haven't. It was related to me. I call that to your attention. That is the only fact that I know except this. This record does show that there are many documents in the original claim, that I looked at very briefly was signed by Martin Hansen and they rely on that. Now he has sent a different lawyer down to this hearing, but I think that is inappropriate. Besides just the notion of your ordinance and any actual bias and stuff. I understand, I appreciate, and I said I accept your comment on that. But, you have the appearances here for everybody of having a personal attorney on behalf of one of the Commissioners having a very important public matter in front of them they have to decide upon. That's the problem, not just the actual bias, but in addition the appearance of it. Frankly, I don't think I would submit anything else. The attorney is going to have to work it out. I could go to the Oregon State Bar and ask them for an opinion real quick on what's going on here as far as the attorney's goes. That's my concern. Commissioner DeWolf: Ok. Mark any thoughts here? Mr. Pilliod: I am kind of thinking in response to comments from Dennis, again, what I heard and what Dennis is saying he heard is that if there is a concern or what seems to be presented, not so much evidence of bias, or prejudice on the part of a Commissioner but rather possible conflict of an ethical sort for the law firm that is involved. If Mr. Willis is suggesting that the appearance alone is sufficient to disqualify a Commissioner, then what's to prevent all of the Commissioners disqualified on the basis that their either present of future members of the Coop. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 48 of 67 Pages Commissioner DeWolf: Or friends with the Cyrus family. Mr. Pilliod: Correct. Again, it is a matter of appearance and not actual bias or actual conflict of interest. Commissioner DeWolf: So many of the decision that we make, I have close friends that work for Central Electric Coop even thought I have not gotten my electricity from them in over 16 years. I mean, at what point is any elected official unable to make any decision if they know someone, are friends with someone, have used that particular firm. Commissioner Luke: Legislature has very strict rules that even if you have a direct conflict of interest you have to declare it and you have to vote. I know that as you start to go down that ladder and we get here, even if you have a direct conflict, I know the rules talk about it, if you have a direct conflict you should step back, but if there is a tie vote, you need to vote. I don't have a problem with the Commissioner making that decision one way or the other. Again, what I heard was the possible conflict was the law firm. Commissioner DeWolf: Is that your concern or is your concern with me? Mr. Willis: What I intended to say is I have no basis to challenge what's inside your mind or heart and if you tell me that you've decided it's not something that is going to be in your way, I can not challenge that. I would not. I don't back away from the but given the fact that your personal attorney signed those papers and these papers make part of that record you have to decided it on it still is a very serious problem to me and it's a problem for the firm. Commissioner Luke: So you're question is for the firm and legal ethics for the bar more than the Commissioner. Mr. Willis: But the appearance of that, I don't know, I hope my clients take my advice and have a lot of trust and confidence in me, most of them do. I don't know I think I would be more happy to have my client sitting up there as a decision maker as a non client sitting up there as a decision maker if I was Mr. Hansen and his partners down here at the table and that is the problem. Commissioner DeWolf. One of your other problems with me personally then is going to be that one of my closest and dearest friends also represents Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 49 of 67 Pages Thornburgh and that is Linda Swearingen, former County Commissioner. I have got, I have friends in this community. I have lived here for thirty years. Mr. Willis: I understand Commissioner. That's why I say I an in no position and do not challenge what's in your heart and mind when you make your pronouncements on that because that is your responsibility. I accept that. Commissioner Luke: Why don't we postpone until Wednesday. Commissioner DeWolf: Monday, we don't have a meeting Wednesday. Commissioner Luke: ON ok. Fine. Commissioner DeWolf: You want to do it Monday? Commissioner Luke: Monday is fine. Commissioner DeWolf: Then if you've got ethical questions about the law firm then why don't the two of you discuss, I don't know if the two of you can discuss, however you do that, if you have questions about Francis, Hansen and Martin's ability to hear this matter, if the two of you could get your various positions in order so that we can have it before this week is out so that I can get advice from my Legal Counsel in my official position about my ability to make a decision here. We will schedule this for Monday, at our 10 o'clock meeting. Mr. Willis: You would need it by Friday. If I can get it to him by Friday is that acceptable. Commissioner DeWolf: Friday at noon. Mr. Pilliod: That's fine. I am satisfied. Commissioner DeWolf: Ok, thank you. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 50 of 67 Pages Commissioner Luke: Mr. Chairman we have people here on the no shooting zone to testify against that. I was wondering if we could postpone that, open the public hearing, and then postpone it till Monday so we will have adequate time. They have sat through this whole thing and I don't think you're going to be able to get to it today. Commissioner Daly: I have to leave. I need to be in Madras at 1:30. Commissioner DeWolf: Let's do what we can do. If you have to leave now. Commissioner Daly left the meeting. Commissioner DeWolf: Tia, what's up. Tia Lewis: I am item number 8. I think it is going to take like five (5) minutes. We have nobody here. Commissioner DeWolf: Ok, and you say we have opponents to the no shooting district. Commissioner Luke: Yes, Doreen sent us an email and there is one citizen up there who wants to oppose it but I think to be fair and give him an opportunity to present his arguments, it would be nice to do it till Monday. Commissioner DeWolf: Let me ask you all. Let me ask a series of questions here. Tom, we've got Measure 37 the next one item #5, is 2005-072. This one took two hours. I don't expect the others to take that long. Do you have an anticipation of how complicated the other two will be. Mr. Anderson: Well, I would not anticipate that they would take two hours either. I me I can't say with certainty whether there, how long they will take. There may be an opponent or two of those claims that are in the audience. Commissioner DeWolf: How about we do this, why don't we jump to these others, hold on to the Measure 37's. Ed Fitch: On 5 and 6 I don't think there is any controversy on these. We have already indicated to the County that we're approve their orders, or accept their orders. I don't think there is any opposition to any of them. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 51 of 67 Pages Commissioner DeWolf: You represent both of these Ed. Mr. Fitch: Yes. Commissioner Luke: If we can get through the other things we will jump right back to them, will take what time we can do it. Commissioner DeWolf: Ok, I am going to jump to number 7 and Tia, we will get you right after this one. 5. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 072, a Claim for Compensation under Measure 37 (File #M37-05-28: Claimant: Cyrus/Knott) Mark Pilliod, Legal Counsel; Tom Anderson, Community Development Department Commissioner DeWolf: Public hearing and consideration of signature of Order 2005-072, this if file #M37-05-28, claimant Cyrus and Knott. Tom Anderson: This claim, again, for Keith Cyrus and Marilyn Knott. The address is 17155 Hwy 126. We have got a map that we prepared that shows these two claims, this claim and the next one, this one is the parcel in green here, City of Sisters for reference. There's another map up there. The parcel is 110 acres, zoned surface mine. The proposed use as indicated on the claim form was for approximately 22 — five (5) acre lots. The amount of the claim of damage is $5 million dollars. Commissioner Luke: Are the Cyrus' opposing this order, would you mind if I moved Order 2005-072. Mr. Anderson: There may be opponents that may wish to speak. Commissioner DeWolf: We've read this recommendation, do you have anything additional to add, other that what we have in our record. Mr. Anderson: No. Commissioner DeWolf: Is there anyone additional who would like to testify on this matter today. No one came forward. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 52 of 67 Pages LUKE: Move approval of Order 2005-072. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 6. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 075, a claim for Compensation under Measure 37 (File #M37-05-29; Claimant: Keith and Connie Cyrus) Mark Pilliod, Legal Counsel; Tom Anderson, Community Development Department Commissioner DeWolf: Public hearing and consideration of signature of Order 2005-075. This is one that I would appreciate walking through the motions because I just got this, this morning, and have not had the opportunity to read this one. I assume it follows the same pattern as the others, if you could just hit the highlights. Mr. Anderson: This one is a little bit different, in that the ownership is different, it is Keith Cyrus and Connie Cyrus. This involves ten (10) separate parcels. All of which are indicated in orange on the map on the easel. I can refer you to exhibit C, which is the end of the Staff Report. The ten (10) individual tax lots are listed. Most of them are EFU. There are a couple that have some surface mine and MUA and one is MUA. Each of the ten parcels has a different acquisition date. The order before you would, since there are no issues that are apparent in terms of the ownership or breaks in ownership since the acquisition date indicated, the waiver would... Commissioner DeWolf: On each individual property. Mr. Anderson: Correct. Commissioner Luke: How can you be EFU and MUA10 at the same time. Mr. Anderson: You can have split zone. Commissioner Luke: Same piece of property has two different zones on it. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 53 of 67 Pages Mr. Anderson: Right. The waiver would direct the Community Development Department to apply whatever zone, if any existed, for that particular parcel. Commissioner DeWolf: So, from 1961 to 1976. Mr. Anderson: Right. In fact as you know from previous claims, some of the PL zones do come into play in the early 70's. So, depending on the proposed land use that would come at a later date, when they are ready to submit for their land use approval, the minimum lot size may come into play on some of these parcels. In terms of the waiver, that just takes us back to the acquisition date and we use whatever may apply, again that would come later. Commissioner DeWolf: Anything Mark? Mr. Pilliod: The only thing I wanted to add, two things. First, as in the previous case, County did receive objections on behalf of William Boyer by Paul Dewey, his attorney and those are in the record. We discussed those in the Staff Report but are still prepared to recommend that the Board issue a waiver of non enforcement as indicated in the order. Second point, on the order that has been submitted, on the very bottom of the page, Whereas number 5, there is a reference to EFU zoning. I think it would be more accurate to include, besides the EFU zoning MUA10 and SM zoning. We would go ahead if the Board approves this and submit a clean first page. Commissioner Luke: How would that read? Mr. Pilliod: The Board concurs with the Administrators report that the current regulation or regulations EFU, MUA10, and SM zoning, if applied to the property, and so forth... Commissioner DeWolf: Is there anyone else who wishes to testify on this particular matter. Not seeing any, I am going to close the public hearing. LUKE: Move approval with that amendment. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 54 of 67 Pages 7. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 071, Approving a Petition for Designation of Territory as "Second Addition to Whispering Pines No Shooting District" — Doreen Blome', Community Development Department Commissioner Luke: Can you come back on Monday, we can give you a lot more time on Monday that we can give you now. Doreen Blome': This is Paul Moore petitioner. Commissioner Luke: Can the opposition come back Monday. Ms. Blome': There are a number of people who have arrived this morning beyond the gentleman that I told you would be here, so we have maybe six or seven, Steve. Commissioner DeWolf: The way that I am going to propose that we handle this in order to expedite this is we're going to go ahead and hear this and what I am going to ask is if it is all right with you all to have one person to represent the group that is opposed to make that case as well. Commissioner Luke: Does that work for you? Commissioner DeWolf: And if that does not completely satisfy everybody we can leave the record open for additional written testimony before we make our final decision. Would that be acceptable with everyone? Do I need to read anything on this public hearing. Ms. Blome': No. Just open it. Commissioner DeWolf: Ok, then I am going to open the public hearing and the first item is the Staff Report. Ms. Blome': I am here today, not only with the petitioner for the proposed designated no shooting district, but also with a number of opponents who have signed up to testify. Because I have not met all of these opponents, I would like to make it clear to them that we welcome their testimony here today. I am a neutral party to this event to facilitate the process. So, having said that... Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 55 of 67 Pages Commissioner Luke: Was there a vote? Ms. Blome': A vote? Commissioner Luke: I thought you had to have 60 % of the registered voters sign the petition. Ms. Blome': Yes, we had over 60%. Commissioner Luke: How much over? Commissioner DeWolf: It was like 61. This is the one where it was 101 % of the 60%. Commissioner Luke: So, you had 61% of the registered voters in the area sign the petition. Ms. Blome': Right. There were approximately 319 total registered voters in the district and approximately 192 — 200 signatures in favor of this designated no shooting district. Commissioner Luke: Is our ... since County Counsel is here ... What does our Code require of the Commissioners if there is a substantial vote over the 61 %? We still have the option of forming the district or not forming the district? Laurie Craghead: I don't have the Code with me, I will have to look at it to make sure on that. It would be a matter of... Ms. Blome': I have the Code and yes, I think the answer is yes. Commissioner Luke: And I agree with the Chairman, he is talking about leaving the record open for additional written testimony and at that time Legal Counsel can also give us a memo on that, if that works out. Commissioner DeWolf: Yes. Commissioner Luke: Would that be all right Laurie? Ms. Craghead: Sure. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 56 of 67 Pages Ms. Blome': So, I would like to introduce Paul Moore the petitioner for his comments. Paul Moore: I am the chief petitioner for the restricted shooting zone for Whispering Pines Addition Il. I like to thank the Board for considering this as well as including the two County parcels that are located adjacent to this subdivision. I lived there since 1988 and we have experienced a tremendous amount of growth in that community. It is fairly small lot sizes, I think they probably average 3 or 4 acres per lot. A large percentage of those lots are now occupied. My concern is for the safety of our family, livestock, pets, when there is people shooting in that area. There is probably a similar situation to what Crooked River Ranch is experiencing. I think their lot sizes are even larger that ours. I know they have passed a similar ordinance in their area. Commissioner Luke: Only on the Deschutes County side because there is no other county that has one of these. Did you circulate the petitions. All yourself, personally. Mr. Moore: Yes, I did. Commissioner Luke: Did you run into much opposition as you were having this discussion? Mr. Moore: I would say for the people that I actually was able to speak to, it was a pretty large number that was in favor. The problem I ran into was that a lot of people who were on the list are no longer residing there and have not changed their voting status so I had a hard time tracking those people down. It was difficult to get the percentage. It took me awhile. Commissioner DeWolf. Ok. Ms. Craghead: If it pleases the Commissioners I have an answer for them already. To Commissioner Luke's question. In the Code in 908.050 it talks about a district may be formed and in 908.090 is says if the Board determines that the area would benefit by restrictions, it may enter an order, and it may be amended. So you have the option to not form a district at any time. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 57 of 67 Pages Commissioner Luke: For the record, the County has asked to be included in this shooting district (County property.) Commissioner DeWolf: Ok, and we had you sir that wanted to speak in opposition? Ms. Blome': Commissioners, this is Steve Lorentzent, who also is a registered voter, who resides within the subdivision. Steve Lorentzent: Gentlemen of the Board, I would like to thank you first off. I became aware of the conflict between Pat McCrone and Paul Moore months ago when Mr. Moore called the Sheriff on Pat about shooting a shotgun off of his upper deck above his land. I did talk with Pat McCrone yesterday and he was very disappointed he could not be here to talk to you gentlemen. Unfortunately, Mr. McCrone, until yesterday, was unaware of the notice of this hearing. He would like a chance to speak to you on his behalf if possible. I would like to continue speaking on my behalf. Pat did show me where he was shooting target loads off his back deck and why Mr. Moore called the Sheriff. I would like to mention that I have just finished certification class that makes me very proficient with a shotgun. I do have a copy of the certificate if you guys would like to see it. At the time of the class the certified instructor from the State of Oregon showed us the effective range of the shotgun. It is my belief and must be of the officer's belief that Pat was not putting any person or animal in danger in a shooting area on his property. Commissioner Luke: I don't think you can speak for the officer as what we have run into, this is not the first time, but the officer has to observe or be able to prove that the firearm was discharged in an unsafe manner. That is extremely hard to do without witness, usually more than one, and/or the officer not viewing it. So, to say the officer did not believe it was in an unsafe manner, I don't think you can say that. Mr. Lorentzent: Ok. I would also like to mention for the purpose of this hearing that I am licensed by the County of Deschutes and the State Police to carry a concealed weapon. I have been licensed for about 10 years. I, Steven Eric Lorentzent, who now has the right, acknowledge to safely discharge on my 3.19 acres of land, I am now at the risk of loosing my rights over a family feud between the Moore's and the McCrone's. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 58 of 67 Pages Unfortunately the Moore's have taken this to task and pushed this petition, not once, not twice, but three times to finally get it through. I was in a conversation with one of my neighbors who stated she signed the petition so he would quit bugging her. Also she said besides that, she does not own any firearms and it does not affect her anyhow. I explained to her what was going on with the petition and how it came about. She was unaware of the situation between the Moore's and the McCrone's. In conclusion gentlemen of the Board, I ask you for your help. Please help me keep my rights as a land owner and do not let Mr. Moore and his hard push petition and lack of consideration for his fellow neighbors, take my rights as an individual and a property owner away. Commissioner Luke: Has that lady asked that her name be taken off the petition? Mr. Lorentzent: Um, actually the interesting part about the petition, there's people surrounding the whole shooting area that they want to restrict, that aren't in the restricted area. She is not aware of this. Commissioner Luke: Has she asked that her name be withdrawn from the petition. Mr. Lorentzent: She is not aware of this. Ms. Blome': May I add that once you sign the petition, you are not allowed to have your name removed. It is a requirement that you... Commissioner Luke: Ok. Commissioner DeWolf. Ok, so what I would like to do now is if you have any additional testimony or if the gentlemen you referred to or the woman you referred to want to put in additional testimony, that can be faxed to this office, emailed to this office, dropped off to this office. If we can get any additional testimony from anyone by Friday, we'll have it in our packets and we will make a decision on this matter on Monday morning at 10:00 a.m. Commissioner Luke: It should go to Doreen. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 59 of 67 Pages Commissioner DeWolf: My apologies. Ms. Blome': You can route it to me. Mr. Lorentzent: Sir, can I say something else? Commissioner DeWolf: Let me finish this piece of it. If it comes to this office we will get it to Doreen or get it directly to Doreen. You have business cards, or contact information for anyone here? Ms. Blome': I will .... (unintelligible word) Commissioner DeWolf: Great! Yes sir. Mr. Lorentzent: I did explain to her this morning when I talked to her that there were other people and she made me aware of the sign up sheet at this desk here, if we signed up we would be able to talk at the meeting. I did not know I was going to be the only representative of the area. There are a number of us here that are very concerned about what is going on. We were hoping that these guys would settle this instead of taking it where the whole hill area's in a vow. We're concerned because there's people voting on shutting our area off that aren't even included in this area. Commissioner Luke: I would point out to you that this law was re -passed because of legislation that happened in 95, in 1997 which reinstated the Deschutes County Ordinance. The only reason it was is because is because members and the lobbyists for the National Rifle Association and the lobbyists for the Gun Owners of America supported it and said if every County had an ordinance like this would support it. Because it requires the people, a big majority, not just property owners, but 60% of the registered voters, and they said that kind of standard they did not have a problem with. So, I am just pointing out there are two major gun organizations that support this type of ordinance. Ms. Blome': May I clarify a statement? If I am hearing you correctly, I am hearing you say that someone outside the boundary of the proposed neighborhood signed the petition. minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 60 of 67 Pages Mr. Lorentzent: No , they did not sign. They were requested to do so by Mr. Moore and he is not even in the zone that is going to be signed off. Ms. Blome': The only signatures that are legitimate... Commissioner DeWolf: That are being counted? Ms. Blome': That are being counted are those of the people who actually are registered voters who live within... Commissioner Luke: You can be a property owner and not be a registered voter and you are not eligible to sign. Ms. Blome': That's right. Commissioner DeWolf: These are all verified by the clerk's office. Ms. Blome': Right. If you would like to look at the petition, cause we just made contact yesterday, it will show you all of those signatures that were rejected because they were out of the district or their registration had expired because they had not voted in a long time. I would be glad to show those to you. Commissioner DeWolf: Ok. My apologies again for the time constraint. We're just up against it here. Please feel free to ... any additional written testimony if we can get that in to Doreen by Friday or to this office by Friday. Commissioner Luke: Can you meet with them maybe in the next room, make sure you get everybody's name so we can make sure their testimony gets on the record. Ms. Blome': I will. We are continuing this till Monday? Commissioner DeWolf: We're going to make a decision on Monday. We want any additional written evidence into you by this Friday. The written record will remain open until Friday at noon so we can get the information and read it over the weekend, then we will make our considered decision on Monday at our 10 o'clock meeting. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 61 of 67 Pages Mr. Lorentzent: So what you're saying the people who signed up to testify today, they cannot testify here. Commissioner DeWolf: They can put anything they want to into writing and we will consider it just the same as if they spoke to us verbally. Commissioner Luke: It is just like the Measure 37 claim. The stuff that comes to us, a lot of it comes in writing. We're used to reading a lot of material. Mr. Lorentzent: I understand what you guy s have been through already. Commissioner Luke: We're not done yet. Commissioner DeWolf: Doreen, if you would meet in the hall with interested parties, we would appreciate that. 8. A CONTINUED PUBLIC HEARING (continued from August 10) and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2005-041, Amending the Resort Community Zone and Amending the Definition of a "Resort Facility" — Catherine Morrow, Community Development Department Commissioner DeWolf: Tia, the continued public hearing. Commissioner Luke: There was no testimony on this at all. Catherine Morrow: This is to consider adoption of Ordinance No. 2005-041 and the reason the hearing was continued was because the Ordinance was not, had not had Legal review previously. And an emergency clause was added to the Ordinance, which I understand was drafted by the representative of the applicant and it says "whereas the applicant in this matter has requested adoption of amendments by emergency clause due to time constraints associated with the related real estate transaction now therefore." So, you could move... Commissioner Luke: The revised Ordinance is 2005-041, has had Legal review? Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 62 of 67 Pages Ms. Morrow: Yes, it has and we're ready for 1 st and 2nd reading and adoption. Commissioner DeWolf: So, I am going to then close the public hearing and consider a motion. LUKE: Move 1 st and 2nd reading by title only of Ordinance 2005-041. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. This is the 1 st reading of an Ordinance amending title 18, Deschutes County Zoning Ordinance and declaring an emergency. This is the 2nd reading of an Ordinance amending title 18, Deschutes County Zoning Ordinance and declaring an emergency. LUKE: Move adoption of Ordinance 2005-041. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 9. CONSIDERATION to Hear Appeals of the Hearings Officer's Decision Denying a Proposal to Establish a 2,000 -seat Outdoor Amphitheater on a Parcel Zoned EFU-TRB, LM and AS and located on Highway 20 east of Bend. The Applicant is Christian Life Center. (File #'s A-05-5 and A-05-6) Catharine White, Community Development Department Commissioner Luke: I think Commissioner Daly needs to be here can we move until Monday? Commissioner DeWolf: Is that ok, we can do that? Is this one of them that we've got a 180 day problem or not? Ms. Craghead: Not 180, 150 day. We won't have a 150 day problem if you agree to hold a denovo hearing. The applicant has agreed that if you agree to Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 63 of 67 Pages hold a denovo hearing, that they will extend the deadline. I believe we have sufficient time left on the clock if you decide not to hold a hearing. Commissioner DeWolf: You want Commissioner Daly here for what reason? Commissioner Luke: Because I am going to vote no. Commissioner DeWolf: That would be a good reason. So, we will put this on our agenda for Monday morning. Commissioner Luke: I don't want to indicate my vote. Legal Counsel has not had an opportunity to share her views with us on some of these issues. I do have an open mind on this. I am not willing to go ahead and accept this hearing until we have an opportunity to meet with Staff and Legal Counsel. Monday would be a lot better day. 10. CONSIDERATION of Second Reading and Adoption of Ordinance No. 2005-014, regarding County Internal Auditor Responsibilities — David Givans, Commissioners' Office Commissioner Luke: I think we should move to Monday also. Commissioner DeWolf: Ok. CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 11. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $ 19,103.43 (two weeks). LUKE: Move approval subject to review. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 64 of 67 Pages CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 12. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $ 2481.59 (two weeks). LUKE: Move approval subject to review. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 13. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $ 1,451,642.95 (two weeks). Including Economic Development Grants for: • Deschutes County Historical Society - $10,000.00 • Leadership Bend $ 11650.00 • Leadership Redmond $ 15650.00 Commissioner DeWolf: I am going to do since there is just two of us here, I have a direct conflict of interest with Leadership Bend Economic Development Grant because my wife runs that program. My belief, what I am voting on and approving the bills and acknowledging that, I have already stated in the past my conflict of interest on that. I did not approve that grant and won't be signing anything for that particular grant but we approve over all bills and sign of those bills. Commissioner Daly did approve that and Commissioner Luke did approve that. What I am suggesting is that I am not voting on the Leadership Grant, I am approving all of the bills that happens to include that Grant that was approved by my two colleges. So, I am acknowledging that. Commissioner Luke: I would point out that the Leadership Bend Grant goes to the Bend Chamber of Commerce, who his wife is an employee of and she is the director of Leadership Bend but that request came to Commissioner Daly and myself, both of which approved that Grant. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 65 of 67 Pages Mr. Pilliod: Can I recommend, because you still need two votes, that you table that component of that approval until Monday so Mike Daly... Commissioner Luke: You can recommend that, and I appreciate where you are coming from, but by the same token, when we approve the bills we approve our own expense accounts. That is a direct benefit and we don't hold back from that. This a very indirect conflict of interest from my stand. His wife does not benefit directly, she has a job whether we give them this grant or not. Commissioner DeWol£ I am a little sensitive about charges of conflict of interest this morning and I am perfectly fine with waiting for Commissioner Daly on Monday. I also recognize that this is already in the pile of bills for this week. Mike Maier: Why don't we just pull that one out and will run out the rest of the bills and just hold on to that until Monday. Commissioner DeWolf: Can we do that. Ok. LUKE: Move approval subject to pulling the Leadership Bend out until Monday. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. 14. ADDITIONS TO THE AGENDA CONSIDERATION and Possible Acceptance of Earnest Money Agreement to Purchase six (6) lots in the Newberry Business Park — Mark Pilliod, County Counsel Commissioner Luke: We move my signature of the earnest money agreements to purchase six lots in Newberry Business Park. Legal Counsel has reviewed that offer, LEGGI has endorsed the offer, they have discussed it with Susan (she's gone) but will get a go. Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 66 of 67 Pages Mr. Pilliod: Let me just clarify the offer needs to be, perhaps adjusted, because they proposed taking down six parcels, three this year and three a year from now. The offer does not differentiate the price per unit as different. What I was going to suggest and you can make it part of your motion, is to authorize staff to submit and addendum to the earnest money to clarify both the price per unit (six of them) as well as the corrected... references to two different title, escrow companies and they did not need two of them they just needed one. LUKE: Move approval with that addendum for my signature. DEWOLF: Second. VOTE: LUKE: Yes. DEWOLF: Chair votes yes. Being no further items brought before the Board, Chair DeWolf adjourned the meeting at 1:00 p.m. DATED this 24th Day of August 2005 for the Deschutes County Board of Commissioners. Tom DeWolf, Chair ATTEST: Definis R. Luke, ommissioner (� JL��� Recordinj Secretary Attachments Exhibit A: Sign -in sheet (I page) Exhibit B: Measure 37 Hearing Process (2 pages) Exhibit C: Community Development Department Notification List (S pages) Minutes of Board of Commissioners' Meeting Wednesday, August 24, 2005 Page 67 of 67 Pages co U N U) c_ a 0 U N w N L 0 5 �- m v: CL 7 r LV � co U N U) c_ a 0 U N w N L 0 5 �- m v: CL 7 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. Page 1 of 2 ,e�XATL,4 B pale 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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CITIZEN INPUT This is the time provided for individuals wishing to address the Board regarding issues that are not already on the agenda. Visitors who wish to speak should sign up prior to the beginning of the meeting on the sign-up sheet provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. 2. A CONTINUED PUBLIC HEARING on the Review of the Hearings Officer's Denial of a Conditional Use Permit and site Plan to Relocate Landfill - related Facilities to the North Development Area at the Knott Landfill, Limited to a Review of the Permits Issued by DEQ for the Proposed Transfer Station and Recovery Facility at Knott Landfill. (File #'s A-04-8 (CU -02-102 and SP - 02 -51.) Timm Schimke, Solid Waste Department; Catharine White, Community Development Department 3. A PUBLIC HEARING (continued from June 8) and Reconsideration of Signature of Order No. 2005-44, Waiving Certain County Land Use Regulations and Consideration of Signature of Order No. 2005-061, an Order to Reverse the Board's Decision on a Claim for Compensation under Measure 37 (File #M37-05-9; Claimant: Brown/Perry) — Mark Pilliod, Legal Counsel 4. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 069, a Claim for Compensation under Measure 37 (File #M37-05-31; Claimant: Central Electric Cooperative, Inc.) Mark Pilliod, Legal Counsel; Tom Anderson, Community Development Department Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 1 of 8 Pages 5. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 072, a Claim for Compensation under Measure 37 (File #M37-05-28: Claimant: Cyrus/Knott) Mark Pilliod, Legal Counsel; Tom Anderson, Community Development Department 6. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 075, a claim for Compensation under Measure 37 (File #M37-05-29; Claimant: Keith and Connie Cyrus) Mark Pilliod, Legal Counsel; Tom Anderson, Community Development Department 7. A PUBLIC HEARING and Consideration of Signature of Order No. 2005- 071, Approving a Petition for Designation of Territory as "Second Addition to Whispering Pines No Shooting District" — Doreen Blome', Community Development Department 8. A CONTINUED PUBLIC HEARING (continued from August 10) and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2005-041, Amending the Resort Community Zone and Amending the Definition of a "Resort Facility" — Catherine Morrow, Community Development Department 9. CONSIDERATION to Hear Appeals of the Hearings Officer's Decision Denying a Proposal to Establish a 2,000 -seat Outdoor Amphitheater on a Parcel Zoned EFU-TRB, LM and AS and located on Highway 20 east of Bend. The Applicant is Christian Life Center. (File #'s A-05-5 and A-05-6) Catharine White, Community Development Department 10. CONSIDERATION of Second Reading and Adoption of Ordinance No. 2005-014, regarding County Internal Auditor Responsibilities — David Givans, Commissioners' Office Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 2 of 8 Pages CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 11. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $ 19,103.43 (two weeks). CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 12. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-1-1 County Service District in the Amount of $ 2481.59 (two weeks). RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 13. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $ 1,451,642.95 (two weeks). Including Economic Development Grants for: • Deschutes County Historical Society - $10,000.00 • Leadership Bend $ 15650.00 10 Leadership Redmond $ 15650.00 14. ADDITIONS TO THE AGENDA Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 3 of 8 Pages FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners ' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Tuesday, August 23, 2005 9:00 a.m. Public Hearing on a Plan Amendment and Zone Change to Establish a Surface Mining Zone near Millican (Applicant: 4-R Equipment/Ron Robinson) 1:30 p.m. Meeting with Marla Rae - Consultant 5:30 p.m. (Correction on time) Redmond Urban Reserve Hearing, at Redmond Fire Hall Wednesday, August 24, 2005 9:00 a.m. Regularly Scheduled Meeting with the Director of Tax & Finance 10:00 a.m. Board of Commissioners' Meeting 2:45 p.m. Regularly Scheduled Meeting with Juvenile Community Justice, at Juvenile 3:45 p.m. Regularly Scheduled Meeting with the Sheriff, at the Sheriff's Office Monday, August 29, 2005 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison Monday, September 5, 2005 - Most County offices will be closed to observe Labor Day. Tuesday, September 6, 2005 1:30 p.m. Administrative Liaison Wednesday, September 7, 2005 10:00 a.m. Board of Commissioners' Meeting Thursday, September 8, 2005 7:00 a.m. Regularly Scheduled Meeting with the Redmond City Council, Redmond Fire Hall 6:30 p.m. Public Hearing regarding the City of Sisters' Urban Growth Boundary — Sisters Fire Hall Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 4 of 8 Pages Monday, September 12, 2005 8:30 a.m. Regularly Scheduled Meeting with the Director of Community Development 10:00 a.m. Board of Commissioners' Work Session 2:00 p.m. Sheriffs Office Correctional Needs Assessment Meeting 3:30 p.m. Local Public Safety Coordinating Council Meeting Tuesday, September 13, 2005 1:30 p.m. Administrative Liaison Wednesday, September 14, 2005 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Regularly Scheduled Meeting with the Forestry Specialist 1:45 p.m. Regularly Scheduled Meeting with the Director of the Road Department 2:15 p.m. Regularly Scheduled Meeting with the Director of Solid Waste 3:30 p.m. Regularly Scheduled Meeting with the Director of the Health Department 4:15 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department Monday, September 19, 2005 2:00 p.m. Sheriffs Office Correctional Needs Assessment Meeting Tuesday, September 20, 2005 11:00 a.m. Regular Meeting of Employee Benefits Advisory Committee 1:30 p.m. Administrative Liaison 3:00 p.m. Regularly scheduled meeting with the Director of the Fair & Expo Center Wednesday, September 21, 2005 1:30 p.m. Public Hearing — Joe Stetler to Address Vacant Lot and Defensible Space Ordinance Monday, September 26, 2005 10:00 a.m. Board of Commissioners' Work Session Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 5 of 8 Pages 1:30 p.m. Administrative Liaison 3:00 p.m. Regularly Scheduled Meeting with the Director of the Commission on Children & Families 3:45 p.m. Regularly Scheduled Meeting with Juvenile Community Justice Wednesda }_September 28, 2005 9:00 a.m. Regular Meeting with the Director of Tax & Finance 10:00 a.m. Board of Commissioners' Meeting 1:45 p.m. Regularly Scheduled Meeting with Parole & Probation 2:45 p.m. Regularly Scheduled Meeting with the Sheriff Monday, October 3, 2005 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison Tuesday, October 4, 2005 8:00 — 5:00 Association of Oregon Counties' Regional Meeting — County Hearing Room Wednesday, October 5, 2005 10:00 a.m. Board of Commissioners' Meeting Monday, October 10, 2005 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison 3:30 p.m. Regularly Scheduled Meeting with Community Development Tuesday, October 11, 2005 1:30 p.m. Regularly Scheduled Meeting with the Director of Information Technology Wednesday, October 12, 2005 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Regularly Scheduled Meeting with the Forestry Specialist 1:45 p.m. Regularly Scheduled Meeting with the Director of the Road Department Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 6 of 8 Pages 2:15 p.m. Regularly Scheduled Meeting with the Director of Solid Waste 3:30 p.m. Regularly Scheduled Meeting with the Director of the Health Department 4:15 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department Thursday, October 13, 2005 12:00 noon Regular Meeting of the Audit Committee Monday, October 17, 2005 11:30 a.m. Regularly Scheduled Update Meeting with Department Heads 1:30 p.m. Administrative Liaison Tuesday, October 18, 2005 11:00 a.m. Regular Meeting of Employee Benefits Advisory Committee 3:00 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center Monday, October 24, 2005 9:00 a.m. Regularly Scheduled Meeting with the District Attorney 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison 3:00 p.m. Regularly Scheduled Meeting with the Commission on Children & Families 3:45 p.m. Regularly Scheduled Meeting with Juvenile Community Justice Wednesday, October 26, 2005 10:00 a.m. Board of Commissioners' Meeting 1:45 p.m. Regularly Scheduled Meeting with Parole & Probation 2:45 p.m. Regularly Scheduled Meeting with the Sheriff, at the Sheriff's Office Monday, October 31, 2005 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison Wednesday, November 2 2005 Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 7 of 8 Pages 10:00 a.m. Board of Commissioners' Meeting Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Meeting Agenda Wednesday, August 24, 2005 Page 8 of 8 Pages