2007-20-Minutes for Meeting December 13,2006 Recorded 1/8/2007COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS 0 1007-Z
COMMISSIONERS' JOURNAL 01/08/2007 03;39;02 PM
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200 -20
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statement, in accordance with ORS 205.244:
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc
MINUTES OF ADMINISTRATIVE WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, DECEMBER 13, 2006
Present were Commissioners Dennis R. Luke and Michael M. Daly. Also present
were Dave Kanner, County Administrator; Anna Johnson and David Givans,
Commissioners' Office; Tammy Baney, Commissioner-elect; and, for part of the
meeting, Commissioner Bev Clarno; Marty Wynne, Finance; Sheriff Les Stiles and
Jim Ross, Sheriff's Office; and Mark Pilliod, Legal Counsel. Also present were
media representatives Keith Chu and Richard Coe of The Bulletin and Barney
Lerten of News Channel 21. No other citizens were present.
The meeting began at 1: 30 p.m.
1. Consideration of Signature of Resolution No. 2006-140, Transferring
Appropriations within the General County Project Fund.
Dave Kanner explained that this transfer would establish a new building fund
for major repairs and capital expenses for certain buildings. This has been done
in the past; Marty Wynne confirmed. In the future departments will contribute
funding based on square footage so that the reserves are adequate.
LUKE: Move approval of Resolution No. 2006-140.
DALY: Second.
VOTE: DALY: Yes.
LUKE: Chair votes yes.
2. Consideration of Signature of Resolution No. 2006-141, Transferring
Appropriations within the Sheriffs Office Fund.
This will be addressed at a future date.
Minutes of Administrative Work Session Wednesday, December 13, 2006
Page 1 of 4 Pages
3. Approval of an Order relating to a Clarification of a Measure 37 Waiver
(Central Electric Cooperative).
LUKE: Move approval.
DALY: Second.
VOTE: DALY: Yes.
LUKE: Chair votes yes.
4. Sheriffs Office Update.
The Sheriff indicated his goal regarding the Work Center is to have it up and
running by April, but realistically it will not happen until May or June. When
the Work Center closed, some long-term programs were also lost. Matrixing
has caused a loss in continuity.
There are two alternatives for use of the space - minimum and medium
security. OMNI group recommended medium security, but it could be used as
before, minimum security. If used as it is, there will be a marginal return on the
matrix program. To use the space as medium security, the cost to revamp the
property would be approximately $41,800 for permitting, architectural work
and construction. If the space is used for medium security, matrix will stop
immediately, and programs could be reinstated. There should be some beds
available for drug and mental health court use and for sanctions.
The Jail expansion project will cost $2.5 million; there will be 24 FTE's
regardless of the option. There is an existing contract for KMD to do the
remodeling plans through to construction. Sheriff Stiles recommended Jail
construction go out to bid.
A lengthy discussion then took place regarding funding and how it would be
obtained and used. Sheriff Stiles recommended the Work Center remodel be
used for minimum security if a jail expansion is forthcoming within five years;
otherwise, the remodel should be for medium security to stop matrixing. To
change the Work Center to medium security would cost approximately
$500,000. Medium security offenders are being released now.
Minutes of Administrative Work Session Wednesday, December 13, 2006
Page 2 of 4 Pages
He added that minimum security inmates are still in the jail, mixing with the
others. He would like to segregate them by classification level. Those with
mental health issues cannot be included; they are placed in holding cells or are
kept separate with 15-minute checks. The future fix with a new jail would
include an arraignment courtroom and ten mental health beds.
Commissioner Clarno said she prefers to see the space used for medium
security now, to stop matrixinng. Commissioner Daly added that he is
concerned that $500,000 is not enough. Dave Kanner suggested that the
existing work be evaluated and a cost breakdown done; it is not as accurate as
construction documents but is a start. Tammy Baney said that medium security
buys a little more time and will help with the time pressure of a new jail.
Sheriff Stiles said he needs authorization of 24 FTE's to start the hiring process.
Candidates would be selected after the first of the year, after which 19 would
have to go to training for five weeks if they are not already certified.
The Commissioners agreed on the hiring scenario; an Order will follow. Mr.
Kanner said an Order is also needed for the HIDTA Director. The details still
need to be worked out with the Oregon State Police.
Regarding other Sheriff's Office business, Sheriff Stiles said that patrol is down
15% due to deferred FTE's. He needs an administrative captain, a PC network
specialist, a nurse who can dispense medications, a classification technician for
assessments, and would like to outsource a detective sergeant. This would free
up the patrol and detective captains. Commissioner Luke stated that the Board
needs to trust the judgment of the Sheriff as to what positions are necessary.
The group then discussed the State Farm property, which was originally to be
used for the State Police, 9-1-1 dispatch, the CODE team and the FBI. The new
annex would be more suited to these uses, and the State Farm building could
instead be used for transitional housing.
The group discussed a director for HIDTA and how the position would be
funded. Some details still need to be worked out in this regard.
Minutes of Administrative Work Session Wednesday, December 13, 2006
Page 3 of 4 Pages
Commissioner Luke said that Judge Sullivan would like the Jail Expansion
Committee to reconvene, with the Judge to chair. Sheriff Stiles said that the
Sheriff's Office Permanent Funding Advisory Committee might also be able to
help.
Commissioner Daly asked that this issue be discussed further. Dave Kanner
and Sheriff Stiles will meet to review plans and then will present the
information to the Commissioners.
5. Other Items.
None were offered.
Being no further discussion or items addressed, the meeting adjourned at
4: 00 p. m.
DATED this 13th Day of December 2006 for the
Board of Commissioners.
ATTEST:
&Wxdl - 4avt-~-
Recording Secretary
Dennis R. Luke;
hutes County
Bev Clarno, Vice Chair
Michael M. Daly, Com issioner
Minutes of Administrative Work Session
Page 4 of 4 Pages
Wednesday, December 13, 2006
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
WORK SESSION AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 P.M., WEDNESDAY, DECEMBER 13, 2006
1. Consideration of Signature of Resolution No. 2006-140, Transferring
Appropriations within the General County Project Fund
2. Consideration of Signature of Resolution No. 2006-141, Transferring
Appropriations in the Sheriff's Office Fund
3. Approval of an Order relating to a Clarification of a Measure 37 Waiver
(Central Electric Cooperative) - Mark Pilliod, Legal Counsel
4. Sheriff Office Update - Les Stiles, Sue Brewster
5. Executive Session, called under ORS 192.660(2)(i) - Employee Performance
Review
6. Other Items
PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to:
ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), pending or threatened litigation; or ORS
192.660(2)(b), personnel issues.
Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated.
Ifyou have questions regarding a meeting, please call 388-6572.
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.
Work Session
Wednesday, December 13, 2006
Agenda
1. Current Needs
2. Work Center FTE's
3. Jail Expansion
a. Recommendation: Use SOPFAC committee
members as jail expansion subcommittee
4. Full-time FTE's (30)
5. HIDTA
NOV-29-2006 WED 01;41 PM Deschutes County Sheriff FAX NO. 5413894454 P. 01/01
o ~
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
REQUEST & STAFF - SPORT
For Board Business Meeting of December 13, 2006 -1:30 Session
Ose "tab" to move between fields, and case as much space as necessary within each field. Do not leave an fields
incv lete. Agenda requests & backup must be submitted to the Board Secretary no later titan noon of the
Wednesday prior to the meeting to be included on the agenda.
DAVE: November 29, 2006
TO: Deschutes County Board of Co=Wssioners
FROM: Sheriff Les Stiles, DCSO, 383-4393
TITLE OF AGENDA ITEM:
Future Planning
FrE's
Direction Public hearing? no.
BACKGROUND AND POLICY IMPLICATIONS:
N/A
FISCAL IMPLICATIONS:
NIA
RECOMMENDATION & ACTION REQUESTED:
N/A
ATTENDANCE: BOCC, Dave Kanner, Sheriff Les Stiles, Susan Brewster only
DISTRIBUTION OF DOCUMENTS:
Who should get an original or a copy? N/A
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NOTICE OF REOPENING RECORD OF MEASURE 37 PROCEEDINGS
DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
Claimant: Central Electric Cooperative, file.
Subject Property: Various
Claim Reference No.: Order No. 2005-069
Nature of the Claim: Demand for compensation for the loss of fair market value of the
property, alleged to be $7.9 million, or waiver of regulations to allow modification of
power line poles
Hearing Date: December 4, 2006
Hearing Time: 10 a.m.
On August 24, 2006 Deschutes County Circuit Judge Steven Tiktin entered a General
Judgment in the two Petitions for Review filed by Trail Crossing Trust and by O. Keith
Cyrus and Conida Cyrus. Among other things Judge Tiktin found that the legal
description of the Jordan Road line property interest of CEC, subject to the Measure 37
waiver was "inadequate." Based upon such finding, the Court "remanded" Order No.
2005-069 to the Deschutes County Board of County Commissioners with directions to
correct the legal description in Exhibit B of that Order to accurately identify all of CEC's
Jordan Road Line property interests that are subject to the Measure 37 waiver.
Based upon the above Judgment of the Circuit Court, this notice is being sent to inform
you that the Deschutes County Board of Commissioners will conduct further proceedings
on this matter. More specifically, the Board will consider additional documentation
bearing on this matter. The Board will also decide whether to correct references in the
above Order to describe the property interests which are subject to the Measure 37
waiver.
You may only submit written comments to the Community Development
Department (117 NW Lafayette, Bend, OR 97701) regarding the new documents
being furnished to the Board up until the time the Board of County Commissioners
makes a decision on the claim. All written comments made before the Board makes its
decision will be presented to the Board for consideration. Please include the Claim
Reference No. listed above in your written comments.
A copy of the documents and evidence to be submitted by the County is available for
inspection at no cost on the county webpage (http://www.descllutes.orP. Click on
Measure 37 Information) and at the office of the Community Development Department.
Copies may be purchased for 25 cents per page.
FRANCIS HANSEN & MARTIN LLP
C.E. "WIN" FRANCIS
MARTIN E. HANSEN*
GERALD A. MARTIN
ADMITTED IN OREGON AND WASHINGTON
ATTORNEYS AT LAW
1148 NW HILL STREET, BEND, OR 97701-1914
PHONE: 541-389-5010 • FAX: 541-382-7068
WWW.FRANCISHANSEN.COM
December 1, 2006
Board of County Commissioners
For Deschutes County
C/o Mr. Mark Pilliod
1300 NW Wall Street
Bend, OR 97701
MICHAEL H. MCGEAN
GREGORY J. STUMAN t
t ADMITTED IN OREGON AND CALIFORNIA
Re: December 4, 2006 Board Meeting--Measure 37 Claim Of Central
Electric Cooperative; Remand for Corrected Legal Description.
Dear Commissioners:
Our office represents Central Electric Cooperative ("CEC") and its many members who
reside in Deschutes County. As you are aware, the Board of Commissioners' August
29, 2005 Order on CEC's Measure 37 Claim for its Jordan Road Line easements was
appealed by the Cyrus family and the Thornburghs' Trust. The County granted CEC's
Measure 37 claim, which allowed for necessary improvements and upgrades of CEC's
Jordan Road Line to the Sisters-Black Butte region. That Order has now been upheld in
all significant respects by the Deschutes County Circuit Court.
The Cyruses and the Thornburghs assigned a laundry list of errors to the Board's
decision and the entire record of the Measure 37 proceedings. The Deschutes County
Circuit Court, Honorable Stephen N. Tiktin, heard lengthy argument from the Cyruses
and the Thornburghs, as well as from CEC and from County Counsel Mr. Pilliod. The
matter was briefed extensively. On July 21, 2006, Judge Tiktin ruled that the County's
Order was upheld in every respect except for an error in the legal description attached
to the Order, which was conceded by the County and CEC. (As you are aware, CEC
had already brought that scrivener's error to the Board's attention when the Board
issued the same,Order with a corrected legal description--over the Cyruses and
Thornburghs objections, again--on June 10, 2006).
After Judge Tiktin rejected every one of their arguments in his ruling, the Cyruses and
Thornburghs challenged the Judge's ruling and filed a "Motion to Reconsider" based on
Deschutes County Commissioners
CEC - Measure 37 Claim
December 1, 2006
Page 2
their allegations of "fraud." That motion was denied by Judge Tiktin, who then entered a
General Judgment disposing of the case on August 24, 2006.
I am attaching a copy of Judge Tiktin's General Judgment with this letter. As you can
see, that Judgment specifically disposes of all of the various complaints made by the
Cyruses and Thornburghs. In particular, the Judgment of the Court was that:
3. The Court further specifically finds:
A. There is substantial evidence in the record supporting the
Deschutes County Board of Commissions' finding that CEC has
acquired and continuously owned its Jordan Road Line
easements continuously and without interruption since 1962 and
prior to applicable land use restrictions for the purposes of DCC
Chapter 14 and ORS 197.352.
(General Judgment, Honorable Stephen N. Tiktin, August 24, 2006, at ¶3A).
This language reflects Judge Tiktin's July 21, 2006 ruling, where he cited a familiar legal
concept to explain that CEC had continuously possessed the same "bundle of sticks" of
property interests without interruption from the time the first easements were acquired
for the construction of the Jordan Road Line since 1962.
As I've said, that [2001 Thornburgh to CEC] easement grants at
least the same bundle of sticks that CEC had at the time of the
execution of this [2001 Thornburgh to CEC] easement and has
owned continuous/ and without break since 1962 That meets the
requirements of Ballot Measure 37. So the Court is going to find
that with the exception of the failure to adequately describe the
property subject to the waiver that the (Cyruses' and Thornburghs].
objections to the actions of the Board are overruled.
(Transcript of July 21, 2006 ruling of Judge Tiktin, emphasis added). In other words,
even if you accept the Cyruses' and Thornburghs' contention that the 1962 easements
on the Thornburgh property were "quitclaimed" and released based on the language of
the 2001 deeds, CEC has still owned a continuous and uninterrupted easement interest
upon that same property dating back to 1962. Judge Tiktin ruled that the Board of
Commissioners properly rejected that argument the first time the Cyruses and
Thornburghs made it to you on August 29, 2005.
The Cyruses and Thornburghs are going to argue to you the same fallacy that they
argued to Judge Tiktin, and that he rejected. All of their objections in this entire matter
Deschutes County Commissioners
CEC - Measure 37 Claim
December 1, 2006
Page 3
boil down to the idea that if a 2001 easement from the Thornburghs to CEC "quitclaims
and releases" a prior 1962 easement granted by the Thornburghs to CEC, then that
1962 easement (and presumably the 1962 era transmission line on the property) is
somehow erased from history, as if the 1962 easement from the Thornburghs had never
happened. That argument is nonsensical, as Judge Tiktin recognized in his ruling.
Counsel for the Cyruses and Thornburghs have never once been able to identify, any
legal principle or authority for that fantasy in any of the different fronts where they have
tried to obstruct CEC's claim.
Not only has Judge Tiktin rejected the same arguments that the Cyruses and
Thornburghs are making again to you now, the State of Oregon's Land Conservation
and Development Department has as well. Both the Cyruses and the Thornburghs
unsuccessfully contested CEC's Measure 37 claim to the State, relying on the same
idea that the 2001 easements retroactively negated the 1962 easements, and the same
argument that CEC had perpetrated a fraud by including those 1962 easements in its
claim and arguing that they remained in effect. The Cyruses and Thornburghs filed a
Motion to Reconsider that DLCD summarily denied. When the State rejected those
objections and passed CEC's claim, neither the Cyruses nor the Thornburghs appealed
the resulting DLCD Order.
The new evidence that County staff is providing actually bolsters CEC's Measure 37
claim. There are new easements that were discovered that were not initially part of
CEC's claim. Those new documents do nothing to change the effect of the Board's
August 29, 2005 Order and Corrected June 10, 2006 Order, and in fact underscore that
all of CEC's Jordan Road Line easements originate from CEO's old 1962-era easement
instruments. In short, all of the previous record remains the same that CEC has owned
its Jordan Road easement rights continuously and without interruption since 1962.
The Cyruses and Thornburghs allegations of "fraud" based on the 2001 easements are
disingenuous at best, given the fact that it was CEC that submitted all of those 2001
easements to the Board for its consideration when it first filed its claim. CEC was not
trying to hide those easements, but rather submitted them as proof that CEC had owned
its easement rights and "bundle of sticks" continuously since the original 1962 grants.
The Cyruses and Thornburghs have done everything in their power to stall and delay
CEC's Jordan Road Line construction. That Line is now fully built and energized, and is
delivering much needed power to the Sisters - Black Butte area. I understand that the
Cyruses and the Thornburghs may now try to ask for a postponement of the Board's
consideration of CEC's claim and Judge Tiktin's ruling to stall this matter again, perhaps
for political reasons. There is no reason whatsoever for the Board to postpone any
aspect of these proceedings. The Cyruses and Thornburghs have had platforms for
Deschutes County Commissioners
CEC - Measure 37 Claim
December 1, 2006
Page 4
their grievances over and over again before this Board, the State, and the Circuit Court,
and those complaints have been uniformly rejected. This matter must be put to rest.
Sincerely,
MARTIN E. HANSEN
MEH:ph
CC Dave Markham
Joe Willis
Michael Peterkin
I
Y
A U G 2 4 2006
1
RL
ED
_
2
PH 3 .i2
4
IN THE CIRCUIT COURT OF THE STATE OF OREGON
5
FOR THE COUNTY OF DESCHUTES
0. KEITH CYRUS and CONIDA E.
)
6
CYRUS, Husband and Wife,
)
Petitioners
,
Case No. 05CV0511MA
8
)
GENERAL JUDGMENT
v
9
BOARD OF COUNTY
)
)
COMMISSIONERS OF DESCHUTES
)
10
COUNTY,
11
Respondent,
)
12
and
)
13
CENTRAL ELECTRIC
)
)
COOPERATIVE, an Oregon
)
14
Cooperative,
15
Intervenor.
)
16
)
)
THE TRAIL CROSSING TRUST
Case No. 05CV0560ST
17
)
Petitioner,
)
18
)
v.
)
19
BOARD OF COUNTY
)
20
COMMISSIONERS OF DESCHUTES
)
COUNTY
)
21
)
Respondent,
)
22
)
and
)
23
)
CENTRAL ELECTRIC
)
24
COOPERATIVE, an Oregon
)
Cooperative
)
25
d
)
Intervenor.
)
26
1
2
GENERAL JUDGMENT
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THESE MATTERS came before the Court upon the Petitions for Review filed by The
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Trail Crossing Trust, and by O. Keith Cyrus and Conida E. Cyrus, husband and wife, challenging
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Deschutes County Order Number 2005-069 rendered by the Deschutes County Board of County
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Commissioners regarding the Measure 37 claim for compensation of Central Electric
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Cooperative ("CEC"). Central Electric Cooperative intervened and the cases were subsequently
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consolidated. Upon the Court's issuance of its Writ of Review, defendant Deschutes County
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made due return on the Writ and the record before the Deschutes County Board of County
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Commissioners was delivered to the Court for its review herein. The Court denied petitioners'
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request to stay further proceedings by the Deschutes County Board of County Commissioners
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pending review.
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The parties thereafter submitted written memoranda, and the Court heard oral argument
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from all the parties on July 17, 2006, petitioners Trail Crossing Trust represented by Donald Joe
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Willis, Petitioners Cyrus represented by Michael Peterkin, Deschutes County represented by
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Mark Pilliod, and CEC represented by Martin E. Hansen. After reviewing the record, the
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memoranda and arguments of counsel, and being fully advised in the premises, the Court issued
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it's decision on the record on July 21, 2006. The court's oral rulings are hereby incorporated
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herein.
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IT IS HEREBY ORDERED AND ADJUDGED:
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1. The Court finds that the legal description of the Jordan Road line property
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interest of CEC, subject to the Measure 37 waiver, is inadequate.
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2. The Court finds generally that all other challenges of petitioners to Board of
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County Commissioners' Order Number 2005-069 are overruled and that the
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Board of County Commissioners did not exceed its jurisdiction, did not fail to
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I follow applicable procedures, did not improperly construe applicable law and did
2 not render a decision that is unconstitutional. The Court further finds that all
3 Board of County Commissioners' findings and the Order itself are supported by
4 substantial evidence in the record.
5 1 The Court further specifically finds:
6 A. There is substantial evidence in the record supporting the Deschutes
7 County Board of County Commissioners' finding that CEC has acquired
8 and continuously owned its Jordan Road Line easements, without
9 interruption, prior to applicable land use restrictions for the purposes of
10 DCC Chapter 14 and ORS 197.352.
11 B. Petitioners' assignment of error that CEC's easements are not
12 private property for the purposes of DCC Chapter 14 and ORS
13 197.352 is overruled. The Board of County Commissioners'
14 finding that CEC's easements constitute private property is
15 supported by substantial evidence in the record.
16 C. Petitioners' assignment of error that CEC did not sufficiently
17 show diminution in value of its property is overruled. There is
18 substantial evidence for the Board of County Commissioners'
19 finding that the value of CEC's property was diminished by
20 applicable land use restrictions.
21 D. Petitioners' assignment of error that the Board of County
22 Commissioners did not follow its own procedures and that all
23 necessary landowners did not sign CEC's Measure 37 claim is
24 overruled. The Board of County Commissioners did not fail to
25 follow its applicable procedures, and the private property interests
26 that were the subject of CEC's claim were exclusive easements
1 owned solely by CEC as a matter of law.
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E. Petitioners' assignment of error that the Board of County
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Commissioners exceeded its jurisdiction in waiving applicable
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land use restrictions because a "State waiver" is required is
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overruled. The Board of County Commissioners did not exceed its
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jurisdiction in rendering Order 2005-069.
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F. Petitioners' assignment of error that Deschutes County Order
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2005-069 effects an unconstitutional taking of petitioners' property
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is overruled. The Board of County Commissioners did not render
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an unconstitutional decision in issuing Order 2005-069.
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G. Petitioners' assignment of error that the Board of County
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Commissioners did not consider CEO's claim on its merits and
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therefore follow applicable procedures in DCC Chapter 14 is
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overruled, as the record reflects that the Board of County
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Commissioners unanimously voted in favor of Order 2005-069 and
16 signed said Order.
17 4. Therefore, based upon these findings by the Court, Order 2005-069 is
18 remanded pursuant to ORS 34.100 to the Deschutes County Board of County
19 Commissioners with directions to correct the legal description in Exhibit B of that
20 Order to accurately identify all of CEC's Jordan Road Line property interests that
21 are subject to the Measure 37 waiver. Nothing in this Judgment is intended to
22 either preclude the Board of County Commissioners from conducting or to direct
23 the Board of County Commissioners to conduct any further proceedings in this
24 matter in addition to those directed by the Court, in the event that the Board of
25 County Commissioners chooses to do so.
26 5. Pursuant to ORCP 68 B, because each party prevailed in part and did not
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1 prevail in part, the court directs that no party is designated the prevailing party and
2 no costs are awarded.
3 Dated this day of August, 2006.
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Stephen Tiktin
CIRCUIT JUDGE
26 Page 5 of 5 - GENERAL JUDGMENT