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2006-894-Minutes for Meeting June 07,2006 Recorded 9/11/2006DESCHUTES NANCY COUNTY CLERKDS CJ 2006' 94 COMMISSIONERS' JOURNAL 1111imill 111 0.1 09/11/2006 04;13;58 PM 20064 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page OT E S ,c ~ Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JUNE 79 2006 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Michael M. Daly and Bev Clarno. Also present were Mike Maier, County Administrator; Tom Blust and Mike Barta, Road Department; Sue Brewster, Sheriff's Office; Laurie Craghead and Mark Pilliod, Legal Counsel; Anna Johnson and Connie Thomas, Commissioners' Office; and Joe Studer, County Forester. Others present were Bob Haas, Information Technology; Marty Wynne, Jeanine Faria and Teri Maerki, Finance; Mike Dugan, District Attorney; Nancy Blankenship, Clerk; Tom Anderson, Community Development; media representatives Barney Lerten of News Channel 21 and Keith Chu of The Bulletin; and fourteen other citizens. Chair Dennis Luke opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. The Commissioners and Mike Maier commended Anna Johnson and Jeanine Faria on their graduation from Leadership Bend training. 2. Before the Board was Consideration of Signature of Resolution No. 2006- 049, Declaring a Moratorium on the Establishment of New County Roads. Tom Blust explained that federal funding is in jeopardy and if the funding is greatly reduced, the County won't be in a position to put additional roads into the County-maintained road listing. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 1 of 23 Pages Mark Pilliod further explained that the term moratorium is not completely accurate. There are limitations on how many roads can come into the system. Those that are already in progress will be completed. Mike Maier added that the County is not required to hold a public hearing, but a media release was sent out to bring about greater public awareness. Mr. Blust gave an overview of the history of the forest funding bills, which go back to 1908, and referred to charts that shows the funding sources and revenue that has been received over the past ten year. During that time staffing at the Road Department has decreased. Along with funding, but the workload has increased, as has the cost of purchasing and operating equipment, purchasing asphalt and so on. Catherine Morrow stated that there are a number of plans for developments being handled by Community Development that have received tentative plat approval, under the assumption the new roads will be accepted into the County system. Provisions in the Resolution creates a question in this regard. The roads are being constructed at this point; and final development approval cannot happen until the roads are completed. Commissioner Daly indicated that these roads should be honored the same as those in the LID's. Mark Pilliod said a process is established allowing tentative plat approval be handled by Community Development and does not need to go before the Board. Tom Blust explained that these roads are not County roads at that point; signature of the plat accepts the roads as County rights of way, not County roads. Commissioner Clarno said she assumes that the Resolution would affect only those applications that have not yet been submitted. Mark Pilliod replied that these could be handled separately, depending on how far along the process has gone. There is a question as to what would be considered a new road; thus, Community Development needs guidance in this regard. Commissioner Daly stated he is not ready to vote for this document at this time; he feels there are too many questions that need clarification. Commissioner Luke said he wants to proceed to stop the LID process from beginning on newer developments. Commissioner Clarno said she would only support it if the ones that are in process are allowed to be completed. Mr. Pilliod indicated that the language in the Resolution is ambiguous, so could go either way. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 2 of 23 Pages Steve Miller of Pahlisch Homes said that there are some items that need to be considered in the Resolution. He asked that a sunset clause be included to coincide with any federal dollars being reinstated. What is probably coming is some type of SDC. Commissioner Luke said that SCD's can be used only for increasing capacity, not for building new roads within a development. Mr. Miller observed that having the County say it will never add roads in the future if funding is not available is a problem that needs to be addressed by ways other than just refusing development to occur. He added that it would be a good idea to find out how many tentative plats are in the process now to determine the impact, and the Board could allow some extra time to do this research. Commissioner Daly stated that there is a real problem with funding, but he would like to allow some time to clarify this issue before proceeding. Tom Blust advised that the Board does has discretion at this time to not accept any new roads into the system without the Resolution. Michael Peterkin, 222 NW Irving, said he is concerned about the tentative plat approval issue. Specifications for the streets are required when the plat is submitted. If the streets are installed or in the process, it is hard to change that process. The roads might have been developed differently if this was known. The process went forward on a certain premise, and the developers and future owners are in a bind. Per Chapter 94, the planned community act, the homeowners' association has to set aside a budget for road improvements. If this is adopted in retrospect, new CCR's and a new HOA might have to be done. Commissioner Luke said that the developer is the owner at that point, and a road district could be formed before the final plat. Mr. Peterkin replied that is a concern when they are in the middle of the process. Commissioner Daly stated that the Board should postpone action on this item while some ambiguities can be clarified. LUKE: Move that the Road Department be instructed not to accept applications on any future LID's after today. The Resolution will be addressed at a later date. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 3 of 23 Pages LUKE: Move that County Planning staff be directed to inform any applicant who submits a tentative plat after today that there is a chance that their roads might not be accepted into the County road system. Commissioner Daly indicated concern regarding the New Neighborhood and the La Pine Industrial Park. Part would be in the system and other parts may not be. He would like to allow time to review the ramifications. Mr. Pilliod suggested that the Road Department could be directed to come up with some options for different areas or different levels of service, and not affect the balance of service within specific developments. Commissioner Daly said he would like to know the possible impacts, how many roads would be affected at this point, and so on. Commissioner Clarno said she would like to make people aware from this point forward, but would not like to see those that are already in the pipeline and were moving forward negatively affected. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. 3. Before the Board was a Hearing on Order No. 2006-009, a Measure 37 Claim (Claimant. Fullerton; continued from April 12 & May 8). Tom Anderson stated that this has come before the Board several times previously and was suspended pending the Supreme Court decision. Since then there have been a number of conversations between Legal Counsel and the applicant's attorney. The Order has been revised to remove the language regarding procedural regulations, and specifies that any land use rule affecting use of the property would be waived except those that are procedural in nature. Chair Luke asked for testimony at this time. Bruce White, representing the claimants, said he appreciates Mr. Pilliod's efforts to clarify the Order. He submitted for the record some correspondence in favor of the Order. No further testimony was offered and the hearing was closed. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 4 of 23 Pages DALY: Move approval. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. 4. Before the Board was a Hearing on Whether to Correct References to Property Described in Order No. 2005-069, a Measure 37 Claim (Claimant. Central Electric Cooperative). LUKE: Did the handout regarding Measure 37 hearings get distributed to the applicant and opponents? Does anyone want this statement read into the record? PILLIOD: They all have it, and it is already part of the record. Let me give you some background. LUKE: Just a second. For the media's benefit, we will be going into executive session right after this Board meeting. PILLIOD: This is a matter involving a Measure 37 claim filed by Central Electric Cooperative. It involves a transmission line which they wish to upgrade. The transmission line runs across a number of private properties on account of easements that have been obtained over the years. The Board previously heard this matter, I believe in August, and adopted Order No. 2005-069 in August, and that order mistakenly included a legal description that did not identify the transmission line and its various easements. And the mistake was discovered by staff, and in an effort to correct that mistake this matter was scheduled for today's proceedings, including a hearing. Now, after the Board adopted its order last August, a writ of review proceeding was filed in Deschutes County Circuit Court by two property owners whose properties are affect in some way by the upgrading that CEC proposes to this line. Both of those parties have submitted to the County, via fax or letter, statements that we will submit for the record to the effect that the County no longer has jurisdiction to consider this matter. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 5 of 23 Pages It is my opinion that the Board continues to have the authority to consider it in view of the fact that no request was made to the Circuit Court to stay or preclude Board proceedings on this matter. In other words, they haven't asked the Court to not allow any further proceedings; in fact, they have complained that the description is inadequate, the legal description previous included in the order. What we have proposed here is that the Board adopt an order, which in substance amends the previous order, to substitute a correct legal description for the one that incorrectly stated the affected property. There are no other changes proposed. The materials that constitute the description of the property involved and the various easements have been distributed to the Board and the Clerk. That's the basis for these proceedings. LUKE: Mark, the correct descriptions were in the record but not in the order, is that right? PILLIOD: Yes, thank you for asking that. The previous hearing included documentation submitted both by CEC and by property owners whose properties are affected by this proposed upgrade. So the various easement components were previously submitted into the record as part of the overall claim process. In fact, the exhibit that you have that is proposed as Exhibit B, the first page is an index and the table that is included expresses the name of the grantor, the date of that document - usually an easement - and the page or pages in the writ of review record at which those documents are found. The record is, of course, the record that was produced by the County as part of the Measure 37 claim process. The fourth column is the book and page number of the Clerk's office, where those official records. So, yes, the documents that are before you now previously were submitted as part of the Measure 37 record. LUKE: Have you had correspondence as part of the record from both the applicant and any opponents, relating to this particular order? Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 6 of 23 Pages PILLIOD: Legal counsel for the petitioners and the interveners in the litigation have submitted letters via fax or regular mail, and they will be made part of the record. As a result, on the assumption that the Board approves the orer as proposed, the County would supplement the writ of review record with the new order, together with the correspondence received as part of this proceeding. LUKE: What is your opinion on whether this needs to be a public hearing? PILLIOD: Well, I can't say with absolute certainty because it is not a matter that is provided, but because the Measure 37 process involves a public hearing by properties that are affected by a proceeding, I felt that in an abundance of caution and to foreclosure any objections, it would be prudent for the Board to conduct a public hearing. LUKE: That's by our ordinance and not by State law, is that right? PILLIOD: That's correct. Chair Luke opened the public hearing at this point. LUKE: Does the applicant wish to testify on this matter? MARTIN HANSEN: I'm Martin Hansen, general counsel for CEC, and we are here to answer your questions. We've seen the submissions that were sent to you and are here to correct that. You should probably hear from the opponents first to put it into context. The applicant's attorney, , stated he is here to answer any questions or concerns of the opponents. LUKE: Anyone else want to testify for this? Anyone against it? Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 7 of 23 Pages I'm Michael Peterkin, and I represent Keith and Connie Cyrus, who are petitioners in the writ of review in Circuit Court. They appeared and objected at the original hearing. Measure 37 continues to cause controversy and impress all of us in its application and its breadth. We are very concerned about this proceeding today, for both procedural reasons, legal reasons and fairness reasons. Let me say first that I have not had an opportunity to review the proposed new property description. I need that opportunity because at issue, in the underlying hearing, was what property interests CEC was claiming. And if you remember, one of the main arguments that the opponents made was that the property interest subject to the Measure 37 claim primarily arose in 2001 because the easements in 2001 replaced the earlier I think 1962 easement. That was a big issue. Now, CEC had an opportunity to change the description and object. It is all part of Chapter 14. They in fact, on the record, stated unequivocally that they were fine with the description. Now, we did object that the description was inadequate at the Circuit Court level. That is something that Judge Tiktin is going to have to resolve. So why we are here today is for many reasons. Let me go through some of them briefly. I know that Mr. Pilliod is going to submit the letter that I submitted to him, so I won't go through everything. But I do want to highlight several things for the Commissioners. First, with respect to jurisdiction, I ask the Commissioners this question. How is this properly before this body? What application, what procedure under Chapter 14 allows this to be heard? We could find none, not under State law - LUKE: Chapter 14, is that under Measure 37 or a land use law? PETERKIN: It's your ordinance, under DCC 14. Sorry, I should have made that clear. So, under State law for Measure 37 or under Deschutes County ordinance, or under the petition for review statute, which is Chapter 34, none of them allow, in our reading, this matter to be before the Commissioners in this way at this time. Now, I have not had the opportunity, because counsel for CEC did not copy us with their letter to Mr. Pilliod, I would certainly like to see that. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 8 of 23 Pages LUKE: They were not required to do that, either. PETERKIN: You know, that's absolutely right, although we copy them as a courtesy because we believe in fair and open communications. LUKE: Not that they don't, by the way. PETERKIN: You know, I wouldn't even say that. I am just surprised that we didn't get a copy. Now, with respect to the jurisdiction then, I think that as a matter of procedure County Counsel should point out how this is procedural proper before this body, and how does this work within the context of Measure 37 and the petition for review now before the Circuit Court. Because in our view the jurisdiction sits solely with the Circuit Court. Under the petition for review, the entire record is sent to the Judge, who sits and reviews that record de novo. He can annul, modify, and he has a lot of power to do what he believes is correct. And that is how this system is set up. We are concerned about timeliness on a number of levels. Timeliness flows into the last part of my argument, dealing with procedure, public notice and fairness. But let me direct my timeliness comments to several issues. First, the petition for review statute, 34.030, only allows sixty days to challenge a County order. That sixty day period has long gone. Why is this important? In a way, I would think CEC would come up and say, look, we're here only to amend a scrivener's error. We intended this, you people knew that we wanted this property interest, so why are you here objecting. Come on, this is not reasonable. They may say something like this. But, here's the problem. If they wanted to object to the form of the order, like everyone else, they had sixty days. Otherwise it is final. If we had not filed a petition for review within sixty days, that order is final and we don't have standing to object. You have to ask yourself, how does this affect other parties. Let me be specific. CEC's property interest is a number of easements that cross a lot of different private properties. It also crosses BLM property, if I remember correctly. Each one of these owners would have a right to file a writ of review. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 9 of 23 Pages That time to file a writ of review has expired. If you change the order now, does their opportunity to come in and file a writ of review somehow surface? Probably not. Because the writ of review statute is quite clear. Although this is unusual because I don't find a place for it in Chapter 14 or in state or administrative law. I just don't know how you would get here. I'm concerned about the people that own the properties that the easements burden. It's not as if CEC owned the property or if another applicant owned the property and the only party at issue would be that property owner. Here, we have - I forget the number - I forget how many easements are at issue, I used to know that number, but quite a few, maybe 17 or more. All of those people are affected by changing this order. I think the only way to proceed in fairness is to file a new Measure 37 claim. I don't know how else you get there, because to simply change the order when the petition process when this entire process has gone forward, deprives citizens of the right to a fair hearing and an opportunity to file a petition for review. That order, as written, gave them notice of the effect of that order. LUKE: I'd just point out, under state law Measure 37 doesn't grant the non-applicant any rights at all. PETRKIN: You know, that was where I was going to end. Thank you, Commissioner, because I wanted to go even a step further and cite to you your Chapter 14.10.070, public comment process. It says, "The Director shall send, by regular first-class mail, notice of the claim within ten days of submittal of the claim to owners of properties within 200 feet of the subject property. Now, it is a "shall". This hasn't been done in this case, and all of the affective property owners should have received notice of what the amendment says, including my clients. We did not get a copy of the new description. I need an opportunity to review that description. So do all of the other property owners. They should have a right to object, comment, do all the rest of it. Now, Commissioner Luke, you bring up a good point. Because both Measure 37 and your ordinance are similar in this respect. Failure of the Director to give notice, or the failure of any person to receive notice as provided in this section, shall not invalidate any acts of the County under this Chapter. Okay. Any person may submit written comments on the claim. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 10 of 23 Pages There is a tension here. On the one hand, you don't have to accept public comments. You can ignore the lack of notice. But then you have to ask yourselves, when the property interest is an easement and not fee title, is there something more that needs to be done. That something more is notice and an opportunity to be heard. And we actually made the argument originally that since the Cyrus' did not sign the application, the Measure 37 claim could not go forward because they were the fee title owners of the property, and CEC only had the easement across the property. So as property owners, they have greater standing than simply a neighbor who would object to the proposal that could be affected by the waiver of the regulation or the code that is at issue. Finally, there is another factor for the Commissioners to consider. That is, under the petition for review statute, 34.070, we can ask for stay. Now, we didn't ask for a stay originally because there was nothing that the Commission was doing - the order was final, the waiver was issued, and the matter went to Circuit Court. We have since filed a motion with the Circuit Court seeking a stay. I believe that is scheduled for June 12. I would ask for two things from the Commission. First, I ask that you set a public hearing on this and direct County Counsel to give notice to all property owners of the change in the description so that all of the property owners affected by this easement will have an opportunity to appeal and be heard. Secondly, I would ask that this public hearing, after notice is given, be set after June 12 so that we know what Judge Tiktin decides. Before you take those steps, though, I would ask the Commissioners to look at the rules, your ordinance, Measure 37, state law and first decide procedurally if you can take any steps. I don't believe you can, but I am keeping an open mind because I have not heard from County Counsel as to what code or law he is pointing to that would give this body the opportunity to take the steps that are being requested today. In fact, I don't understand how this even got before the Commissioners. I don't see the application, and of course I don't have discovery or haven't made a records request, but I don't know how it got to this point after this time, when it is far - it is just not timely, and it is unusual in its nature. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 11 of 23 Pages Those are my comments. Thank you very much, Commissioners, for hearing us. The Cyrus' continue to be very concerned about this, and are taking all of the right procedural steps. But it is not just them; it is the other property owners that should be afforded due protection under law, and a fair opportunity for notice and to be heard under these circumstances. Thank you. DALY: It seems to me that we are considering whether to correct references in the order to more accurately describe the property. It is your contention that you should review all these descriptions to be sure they are accurate. You haven't had that opportunity? PETERKIN: I haven't had that opportunity. Because of the nature of Measure 37, waiving Deschutes County's ordinances as to specific property, and because the easement crosses certain property, I think it is vitally important that the description of the property right is accurate. Now, I'm troubled by the fact that the waiver has already been issued, affecting certain properties, and how is it that you can issue in effect a new order that affects new property without going through the Measure 37 process? DALY: Is there new property involved? (To Mr. Pilliod.) PILLIOD: This is his argument. As pointed out, all of these documents are already in the writ of review record. There are no surprises here. PETERKIN: I agree with County Counsel that - well, I can't agree because I haven't seen the descriptions -but I am going to assume that the new description sites to property that was in the earlier record. But that's not my point. My point is that a waiver was issued on property within the four corners of the instrument that you signed. By amending that, you are burdening separate and different property, whether it was identified in the earlier proceeding or not, it is different property than what the waiver is subject to by the order. And what concerns me is that the order affects separate property. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 12 of 23 Pages Yes, it was identified in the earlier record. And Counsel, on the record, said he had no objection to the form of the order. Now we have new property. That is what concerns me. I don't see the process here that allows that. And I'm certainly willing to discuss this further with Mr. Pilliod. I would ask the Commission again not to take this step today. Open it for public hearing, wait for Judge Tiktin to make a decision, and then we can see. LUKE: I have a question. Is there any contention that the utilities are not in the legal right of way where they are established right now? PETERKIN: That is a very hotly contested issue. In fact, Isa Taylor is here - LUKE: A yes or no would work. We are running out of time. PETERKIN: Yes. Very hotly contested because it would exceed the property interest that CEC claims. DALY: I have another question, too. Judge Tiktin's decision is going to be on what issue? PETERKIN: Whether he will stay the proceeding under 34.070, that's the motion that is before him now. The hearing on that motion is set for June 12. LUKE: Has the record been sent to the Court? PILLIOD: Yes. LUKE: What would be the process if we approve this today? You would amend the record that goes to the Court? Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 13 of 23 Pages PILLIOD: Yes. It would be my intention that the material prepared for this meeting, together with any documents that are generated as part of this meeting, would be submitted as part of the record, subject to counsel's objection. LUKE: Including the letters from the applicant and the appellants. PILLIOD: That would be my intention. PETERKIN: I would defer my further time to Isa Taylor, who represents the Trail Crossing Trust, also a petitioner who has filed an objection to the waiver. ISA TAYLOR: I'm Isa Taylor, here representing the Trail Crossing Trust, and I'm at 549 SW Millview Way, Bend, 97702. I will adopt Mr. Peterkin's comments in whole on behalf of the trust, and will try to add a few short things because my stomach is growling also. I do want to urge the Board to respect the jurisdiction of the Court in this matter. On August 29 the Court approved a final order, and at that time that order left this Board's hands. At the time, several Commissioners commented that, "We aren't going to make the final decision on this matter; a Court is going to do that." And at great expense my client and Mr. Peterkin's client went through the legal process of invoking in the Court's jurisdiction to review that particular order. And that is in process right now. We did not ask originally for a stay; we did not ask the Court to tell you to stop working on this matter right now because they were working on it, because we didn't see any way in which the County could change that order. Obviously we recently received notice that the County was going to try to do that, and as soon as we learned that we filed a motion asking the Court to stay the proceedings now, and the Court is going to hear that motion on June 12. So, at the very least the Board should request the Court's jurisdiction and allow the Court to make a decision about whether you have authority to continue to make decisions in this matter. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 14 of 23 Pages I also want to speak to the fact that the writ of review proceeding, if you are not terribly familiar with it, and a lot of people aren't, is one that is very technical and allows certain things in and certain timelines. One of the aspects of that proceeding is that it is entirely on the record. We submit that the record consists of what lead up to your final order; anything that came after your final order is not part of that record. We suggest the County would have to move to ask the Court and say, hey, we didn't get our record right the first time, can we change it now? Most likely that would lead to the Court saying, well, then your decision below was incorrect, and issue an order on that, and we go back to the drawing board. LUKE: This is a little different. We do this a lot, especially when it comes to annexations of property into a fire protection district, where everybody agrees. We have to send the legal description to the Department of Revenue. We are not basing our decision on a legal description of a piece of property. We are basing our decision on two groups who mutually agreed to annex each other. So, to say we base our opinion on a legal description, I don't base my opinion on that, I base it on what is before us. The legal description is up to the surveyors and the attorneys and the assessor. That's complicated stuff, and technical stuff. That's not how I base my decision. TAYLOR: I entirely understand that and appreciate that explanation. I believe there is a difference here because what happens when the Board issues a Measure 37 waiver is that you are granting property rights. You can analogize this to the property description attached to a deed - LUKE: We are not. On a Measure 37 claim, what I have been told we are doing is we are waiving certain restrictions or ordinances the County has passed, which simply allows - it's not a land use action - the applicant to make an application to the Community Development Department and go through the whole process. I don't believe we are giving a right; we are just allowing a process to move forward, under certain conditions, and certain regulations will be waived. TAYLOR: I do appreciate that explanation as well - Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 15 of 23 Pages LUKE: To have a property right, you have to be able to transfer it, and it is very clear that this has not been determined by the Courts, either. So how can it be a property right if it is not transferable? TAYLOR: I could definitely spend all of lunch describing that, but I don't want to do that. The basic thing is, what Measure 37 creates is a right, and in lieu of giving that right you have the option of granting a waiver. So there has to be some sort of comparability between the two. That's what I will base that on. So, I would like to make one final comment. That is, at this time CEC does not have a written waiver that allows them to do anything on Trust property. But they have done that, which lead us to filing a lawsuit yesterday for violation of land use laws, on the Trust land. We are going to be asking the Court to issue a temporary restraining order to prevent them from erecting more poles, as is they have a valid waiver and as if it's not being - LUKE: That is a separate issue. TAYLOR: Absolutely. Just to note, that on two fronts the Court's jurisdiction over this matter is being assaulted. One, by perhaps being amended by this Board; and the second by the claimant, asking as if they have something they do not have. Thank you for your time this morning. DALY: I guess I don't know what you are really concerned about. I don't have a problem waiting until the Court makes a decision. But I guess, I might ask Mark, if Judge Tiktin makes a decision that we no longer have jurisdiction, how does that affect this issue? PILLIOD: Well, I'm not sure that's the question that the Judge is going to be facing entirely. The Judge might be asked to prevent any further actions or further official proceedings by this body. That request was submitted, but the Judge hasn't heard that request and won't hear it until next week. Okay. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 16 of 23 Pages So, the question separate from that as to whether this Board has any authority to deal with this matter is a question the Court can address any time it wants. Whether it is next Wednesday or in the future, all of the arguments that have been presented this morning can be presented again to the Circuit Judge. And the Judge can rule at that point, or an appellant body can rule, that this Board no longer had authority to consider an amendment to the previous order. It can decide that question. We are simply submitting, and under statutory law this body has plenty of authority in County affairs, including these matters. It is not limited by the terms of Chapter 14 or Chapter 17, as has been suggested, to correct matters that are apparent on its face. Now, if there were new easements not previously in the record, and if there were sections of this so-called power line that had not previously been proposed for a Measure 37 waiver, certainly that would be pause for some concern amongst the properties affected by that. I note that counsel in this case represents two distinct property owners, Trail Crossing Trust and the Cyrus'. I am not aware that they represent anyone else out there. But if there is a problem with respect to identifying which pieces and which easements are involved, this Court, the Judge hearing this matter, is going to have every opportunity to examine those flaws. I'm sure counsel will be well prepared to argue those flaws at a future time. The question is, is this Board willing to correct the legal description that was apparent in the earlier order. If the Board does not have the authority to do so, the Judge will later determine that. It is not a matter of respect for the Court. Certainly this body respects the Court. I would presume that the Court likewise would have respect for the governing body of the County. LUKE: All you have to do is look at that new building. For the media's benefit, because of the length of this hearing and an appointment we have during lunch, we will not be going into executive session after this meeting. PETERKIN: Commissioner Luke, may I - LUKE: I would rather not. I don't want an argument back and forth between counsels. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 17 of 23 Pages You got to do your presentation. The applicant has an opportunity to speak. Then I'll see where we're going to go. PETERKIN: I was not going to argue with counsel, I was only going to address a comment you made to Ms. Taylor. I wanted to answer that more clearly, if I could. It will be less than - LUKE: Actually, no. We have a commitment. Does the applicant wish to make any comments? HANSEN: Only ever so briefly. Martin Hansen again for CEC. Mr. Pilliod is absolutely correct. One thing, he wasn't present at Monday, Judge Tiktin does have respect for this Board because in fact Mr. Peterkin appeared and voiced his motion for stay that had been filed the Friday before, and the Judge said there is no stay in place in this case, and never has been a stay, and shouldn't be surprised that things are moving. And I'm not going to take this up now, but he essentially set the hearing for this after this Board meeting knowing that you would have the inherent right to correct an obvious clerical mistake, the same one they are pointing out. They are asking Judge Tiktin, later in July when he hears the writ of review, to ask you to correct the same mistake that you are able to do today. So we are just trying to be efficient here, and Judge Tiktin can take up anything he wants when he wants. He did respect this Board on Monday, and there is no stay. Thank you. LUKE: You know, if we were reviewing the whole claim, I would have a problem with the notice not being sent out. As you know (to Mr. Pilliod), since you helped us write it, we are a lot more liberal in our notification requirements than a lot of other jurisdictions. We did that for a reason. It is important that people know. All we are doing is making our record more accurate than it was, and we simply are taking something that was already in the record and adapting it to the order. I personally don't have a problem doing that, so that an accurate record can be before the Court and the Court will be able to take a look at that, and they will make the decision. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 18 of 23 Pages There are so many things about Measure 37 that are going to be before the Court that have not been decided. We asked Lane Shetterly yesterday, and his comment, which was in the paper, was that he doesn't believe the legislature is going to act. That the political will won't be there, so it will be in the Courts. This is just another one that will be before a local Judge and he'll make the decision whether we acted correctly or not. And there's no sanction to the County if the Judge determines we were incorrect. He will make a determination on how we have to fix it. I really don't have a problem correcting the record. DALY: I have one other question for Counsel. Are the corrections that we are dealing with here - these two attorneys here, representing the Cyrus' and the other group - are some of the corrections their properties? PILLIOD: The property that is being included, that is proposed to be included in this order, includes easements which these attorneys' clients are concerned about. Those easements have been previously part of the record in this case. So there is no change in that respect. DALY: We change some obvious mistakes in the earlier order. Was the property they represent part of that? PILLIOD: Yes, absolutely. No question. The previous order was intended to affect these properties to no less extent than this order. DALY: Okay. Originally I thought I might be wiling to postpone this, but after it has been made clear that this is an opportunity in Circuit Court for these folks to state their claim, I'm willing to go ahead with this thing. LUKE: Is it a problem, sine one of the opponent's counsel wanted to respond to something I said, and I don't have a problem with that. Is it a problem leaving the record open so they can make a written comment to that? Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 19 of 23 Pages PILLIOD: Yes. LUKE: There is a problem, okay. So we'll move on it. DALY: Move approval of Order No. 2006-093, correcting Order No. 2005- 069. LUKE: Second. CLARNO: I have a potential conflict of interest in this issue since my husband is on the Central Electric Cooperative board, and am not familiar with the claim, so I will not be voting. VOTE: CLARNO: Abstain. DALY: Yes. LUKE: Chair votes yes. 5. Before the Board was Discussion of the Deschutes County Fee Schedule for Fiscal Year 2006-07. Teri Maerki gave an overview of changes to the fee schedule. Mike Maier suggested that if the Board has any concerns about the schedule to contact Finance. There will be a public hearing on the fee schedule in the near future. Mike Dugan explained there hasn't been an increase for over five years, so some of the fees have been adjusted accordingly. Scanning and electronic transmission would help a lot to keep the cost down, especially regarding discovery documents. Mike Maier said that there have been a number of calls regarding garbage franchise fees. He explained that garbage fees are not included in the County's fee schedule. Commissioner Daly had questions regarding the CDD fee schedule, in particular with Measure 37 filing fees and on-site sewage disposal systems. Tom Anderson explained the reasons for the adjustments. The Builders' Association have reviewed the fees and does not object to the new fees. Dan Haldeman will meet with Commissioner Daly separately to review the fees. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 20 of 23 Pages CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 6. Before the Board was Consideration of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $20,991.32. DALY: Move approval, subject to review. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $18,710.61. DALY: Move approval, subject to review. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 7. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $465,598.18. DALY: Move approval, subject to review. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 21 of 23 Pages 8. ADDITIONS TO THE AGENDA A. Before the Board was Consideration of Signature of Document No. 2006-274, an Intergovernmental Agreement with the Oregon Department of Transportation regarding the U.S. 97 - Wickiup Junction Project. Tom Blust gave an overview of the item. CLARNO: Move approval. DALY: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. B. Before the Board was Consideration of Signature of Order No. 2006-091 and Order No. 2006-092, Declaring the Results of the Countywide and Rural Law Enforcement Districts Election of May 16, 2006. Sue Brewster stated these orders are needed to declare the results of the recently failed tax levy. The levies would have passed except the number of voters was not high enough. DALY: Move approval. CLARNO: Second. VOTE: DALY: Yes. CLARNO: Aye. LUKE: Chair votes yes. Being no further items to come before the Board, Chair Luke adjourned the meeting at 12:05 p.m. Minutes of Board of Commissioners' Meeting Wednesday, June 7, 2006 Page 22 of 23 Pages DATED this 7th Day of June 2006 for the Deschutes County Board of Commissioners. enn R. Luke, Chai ATTEST: ~5~ Recording Secretary Bev Clarno, Vice Chair I - / /A/ A ~ /I Mi ael . Daly, Co issioner Minutes of Board of Commissioners' Meeting Page 23 of 23 Pages Wednesday, June 7, 2006 DESCHUTES COUNTY ROAD REVENUE YEAR HIGHWAY FUND FOREST HWY / FOREST REGISTERED REV. /VEHICLE REVENUE REVENUE TOTAL REVENUE VEHICLES 1992 DOLLARS 1992-93 $ 4,340,000 $ 2,730,000 $ 7,070,000 103,877 68.06 1993-94 $ 4,730,000 $ 2,580,000 $ 7,310,000 108,881 65.18 1994-95 $ 5,030,000 $ 2,580,000 $ 7,610,000 114,126 62.85 1995-96 $ 5,220,000 $ 2,490,000 $ 7,710,000 119,424 59.08 1996-97 $ 5,180,000 $ 2,400,000 $ 7,580,000 121,864 55.26 1997-98 $ 5,190,000 $ 2,310,000 $ 7,500,000 125,736 51.45 1998-99 $ 5,580,000 $ 2,210,000 $ 7,790,000 130,346 50.05 1999-00 $ 6,010,000 $ 2,140,000 $ 8,150,000 137,975 48.03 2000-01 $ 6,376,000 $ 2,056,000 $ 8,432,000 147,014 45.28 2001-02 $ 6,228,000 $ 2,871,000 $ 9,099,000 153,341 45.48 2002-03 $ 6,306,000 $ 2,893,000 $ 9,199,000 160,957 42.53 2003-04 $ 7,085,000 $ 2,928,000 $ 10,013,000 166,010 43.57 2004-05 $ 7,391,000 $ 2,967,000 $ 10,358,000 173,265 41.93 2005-06 $ 7,500,000 $ 3,039,000 $ 10,539,000 179,747 39.93 2006-07 $ 7,900,000 $ 3,085,000 $ 10,985,000 186,488 40.11 2007-08 $ 8,100,000 $ 2,300,000 $ 10,400,000 193,481 36.60 2008-09 $ 8,150,000 $ 2,300,000 $ 10,450,000 200,736 35.45 $70.00 $65.00 $60.00 w J $55.00 w w $50.00 z > $45.00 w w $40.00 $35.00 220,000 200,000 U) w 180,000 U w 160,000 w or w H 140,000 w w 120,000 $30.00 100,000 3 D' h Ob OA 4i O O OH O 5 OO PK h ro 'l O O , O O O O O O O O Ow l OD~~O~~O~°~O000°br w0N, O',V03~OD~~OhOOOq'►~°~ N N N N N N N rp ti0 TO T tip rp T rO rO FISCAL YEAR 6/7/2006 Note: 92-93 thru 04-05 actual revenue 05-06 thru 08-09 revenue forecasts Z ~ 0 LL ~ o W O ' ~a Z LL N 0 LL y V e0 IL 06 ♦A y~ W W 0 ccc 2 m Cl) `O W D x W I N d H H 0 c N N d V c~ E b G1 c~ K c~ M m c ~ o a N N N d, Q ~ J O I a~ E ° m Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JUNE 7, 2006 Commissioners' Hearing Room - Administration Building 1300 NW Wall St., Bend 1. 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. CONSIDERATION of Signature of Resolution No. 2006-049, Declaring a Moratorium on the Establishment of New County Roads - Tom Blust, Road Department 3. A HEARING on Order No. 2006-009, a Measure 37 Claim (Claimant: Fullerton; continued from April 12 & May 8) - Tom Anderson, Community Development; Mark Pilliod, Legal Counsel 4. A HEARING on Whether to Correct References to Property Described in Order No. 2006-009, a Measure 37 Claim (Claimant: Central Electric Cooperative) - Tom Anderson, Community Development and Mark Pilliod, Legal Counsel 5. DISCUSSION of the Deschutes County Fee Schedule for Fiscal Year 2006-07 - Judi Haas and Teri Maerki, Finance Department CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 6. CONSIDERATION of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $20,991.32. Board of Commissioners' Meeting Agenda Wednesday, June 7, 2006 Page 1 of 6 Pages CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 7. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $18,710.61. RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 8. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $465,598.18. 9. 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. 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, June 6, 2006 7:00 a.m. Meeting of Home Rule Charter Committee Wednesday, June 7, 2006 9:00 a.m. Executive Session, called under ORS 192.660(1)(h), pending or threatened litigation 10:00 a.m. Board of Commissioners' Meeting 10:30 a.m. (Time approximate.) Executive Session, called under ORS 192.660(1)(e), real property negotiations/transactions 12 noon Lunch and Tour of Facilities - Bethlehem Inn 2:00 p.m. Presentation by COCC Forestry Class regarding County-owned Property in Sisters Board of Commissioners' Meeting Agenda Wednesday, June 7, 2006 Page 2 of 6 Pages Thursday, June 8, 2006 3:00 p.m. Regularly Scheduled Meeting of the Fair Board, at the Fair & Expo Office Monday, June 12, 2006 10:00 a.m. Board of Commissioners' Meeting for the Week 1:30 p.m. Administrative Liaison 3:30 p.m. Regularly Scheduled Meeting with the Director of Community Development Tuesday, June 13, 2006 7:00 a.m. Meeting of Home Rule Charter Committee Wednesday, June 14, 2006 11:00 a.m. Youth Challenge Graduation Ceremony (Fair & Expo Center, Redmond) 2:30 p.m. Regularly Scheduled Meeting with the Solid Waste Department 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, June 19, 2006 10:00 a.m. Work Session regarding Waldron Lot of Record 12 noon Regularly Scheduled Meeting with Department Heads 1:30 p.m. Administrative Liaison Tuesday, June 20, 2006 7:00 a.m. Meeting of Home Rule Charter Committee 11:00 a.m. Regularly Scheduled Meeting of Employee Benefits Advisory Committee 3:00 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center Thursday, June 22, 2006 1:30 p.m. Public Hearing - Waldron Lot of Record Verification Board of Commissioners' Meeting Agenda Wednesday, June 7, 2006 Page 3 of 6 Pages Monday, June 26, 2006 10:00 a.m. Board Meeting for the Week 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 Tuesday, June 27, 2006 7:00 a.m. Meeting of Home Rule Charter Committee Wednesday, June 28, 2006 9:00 a.m. Regularly Scheduled Update with the Director of Finance/Tax 10:00 a.m. Board of Commissioners' Meeting 1:45 p.m. Regularly Scheduled Meeting with Parole & Probation 3:45 p.m. Regularly Scheduled Meeting with the Sheriff MondM, July 3, 2006 Many County offices will be closed today (unpaid holiday) Tuesday, July 4, 2006 Most County offices will be closed in observance of Independence Day Wednesday, July 5, 2006 10:00 a.m. Board Meeting for the Week 1:30 p.m. Administrative Liaison Thursday, July 6, 2006 8:00 a.m. Regularly Scheduled Meeting with the Sisters City Council, Sisters City Hall 12:00 noon Regular Meeting of the Audit Committee Board of Commissioners' Meeting Agenda Wednesday, June 7, 2006 Page 4 of 6 Pages Tuesday, July 11, 2006 7:00 a.m. Meeting of Home Rule Charter Committee 8:30 a.m. Regularly Scheduled Meeting with the Director of Community Development 1:30 p.m. Administrative Liaison 3:30 p.m. Regularly Scheduled Meeting with the Director of Information Technology 6:00 p.m. Urban Growth Boundary Hearing with Redmond City Council, in Redmond Wednesday. July 12, 2006 10:00 a.m. Board of Commissioners' Meeting for the Week 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 2:45 p.m. Regularly Scheduled Meeting with the Director of the Health Department 3:30 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department Thursday, July 13, 2006 7:00 a.m. Regularly Scheduled Meeting with the Redmond City Council, Redmond Fire Hall 3:00 p.m. Regularly Scheduled Meeting of the Fair Board, at the Fair & Expo Office Monday 17, 2006 1:30 p.m. Administrative Liaison Tuesday, July 18, 2006 7:00 a.m. Meeting of Home Rule Charter Committee 11:00 a.m. Regularly Scheduled Meeting of Employee Benefits Advisory Committee 3:00 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center Monday, July 24, 2006 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 Board of Commissioners' Meeting Agenda Wednesday, June 7, 2006 Page 5 of 6 Pages Tuesday July 25, 2006 7:00 a.m. Meeting of Home Rule Charter Committee Wednesday, July 26, 2006 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 3:45 p.m. Regularly Scheduled Meeting with the Sheriff Monday, July 31, 2006 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison Tuesday, August 1, 2006 7:00 a.m. Meeting of Home Rule Charter Committee (tentative - may not need to meet) Wednesday, August 3, 2006 10:00 a.m. Board of Commissioners' Meeting Monday, August 7, 2006 3:30 p.m. Local Public Safety Coordinating Council (LPSCC) Regular 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, June 7, 2006 Page 6 of 6 Pages NA,vK Es GI Deschutes County Board of Commissioners 0 { 1300 NW Wall St., Suite 200., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org ADDITIONS TO THE AGENDA BOARD OF COMMISSIONERS' MEETING WEDNESDAY, JUNE 79 2006 A. CONSIDERATION of Signature of Document No. 2006- , an Intergovernmental Agreement with the Oregon Department of Transportation regarding the U.S. 97 - Wickiup Junction Project - Tom Blust, Road Department B. CONSIDERATION of Signature of Order No. 2006-091 and Order No. 2006-092, Declaring the Results of the Countywide and Rural Law Enforcement Districts Election of May 16, 2006 - Sue Brewster. Sheriff's Ofce