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2007-418-Minutes for Meeting October 30,2006 Recorded 4/3/2007DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK L IiJ COMMISSIONERS' JOURNAL 11111111 I1111I~ ~i iii i i 111111 04/03/2007 02:20:42 PM 2007=418 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 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 BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, OCTOBER 30, 2006 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke and Bev Clarno; Commissioner Michael M. Daly was out of the office. Also present were Dave Kanner, County Administrator; Tom Anderson, Catherine Morrow, Paul Blikstad, Steve Jorgensen, Kevin Harrison, George Read and Anthony Raguine, Community Development Department; Mark Pilliod, Legal Counsel; media representative Keith Chu of the Bulletin; and fourteen other citizens. Chair Luke opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. The Board acknowledged Steve Jorgensen's participation on the Bicycle & Pedestrian Advisory Committee, and thanked him for his work at the County. (Mr. Jorgensen is joining the staff of the Bend Metro Park & Recreation District.) 2. Before the Board was a Public Hearing and Consideration of First Reading of Ordinance No. 2006-031, Amending and Adding Clarifying Language for Subdivisions in the Urban Unincorporated Community of La Pine. Commissioner Luke read the opening statement for Ordinances 2006-031, 2006-032 and 2006-033. Regarding bias, prejudgment of personal interest, Commissioner Clarno indicated note; Commissioner Luke wasn't sure about the bicycle facilities issue. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 1 of 22 Pages Steve Jorgensen said the first item relates to the New Neighborhood planning area in La Pine. He reviewed the new section regarding transportation, which better clarifies the access requirements regarding the streets; this was left vague until the neighborhoods were fully planned. The language is the same as that in the comprehensive plan. Commissioner Luke opened the public hearing and asked for testimony; none was offered. Commissioner Luke stated that he is concerned about doing the readings until it is known if the incorporation effort for La Pine is successful. Mr. Jorgensen stated that the second readings could be delayed until this is known. Catherine Morrow recommended doing the first reading. The law says that the new City would have to administer the rules of the County; however, these ordinances make technical changes for consistency with the comprehensive plan. Mark Pilliod stated that he feels the Commissioners should proceed and can deal with the results of the election at a future date. After a brief discussion, it was decided that the second reading with an emergency clause for immediate adoption would be on the Monday, November 20 Board agenda. CLARNO: Move first reading by title only of Ordinance No. 2006-031, with an amendment indicating an emergency clause for immediate adoption on November 20. LUKE: Second. VOTE: CLARNO: Yes. LUKE: Chair votes yes. Chair Luke then conducted the first reading. 3. Before the Board was a Public Hearing and Consideration of First Reading of Ordinance No. 2006-032, Amending Subdivision Code regarding Minimum Road Design Standards and Minimum Bike Facility Standards. Steve Jorgensen stated that this amends a couple of standards regarding bicycle facilities; he has been working the Road Department and the Department of Environmental Quality to clarify this issue. Eight feet is the state standard but for ADA reasons this is being upgraded. There are concerns about the aggregate shoulders collecting water runoff. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 2 of 22 Pages Commissioner Luke opened the public hearing and asked for testimony; none was offered. CLARNO: Move first reading by title only of Ordinance No. 2006-032. LUKE: Second. VOTE: CLARNO: Yes. LUKE: Chair votes yes. Chair Luke then conducted the first reading. The second reading will take place on November 20. 4. Before the Board was a Public Hearing and Consideration of First Reading of Ordinance No. 2006-033, Amending and Adding Bicycle Parking and Bike Commuter Requirements. Mr. Jorgensen stated that the Bicycle and Pedestrian Advisory Committee has been working on this for more than a year. The concern is that when it went into effect in 1993 the rule was quite different. The rule relates to pedestrian and bicycle commuter requirements. Commissioner Luke opened the public hearing and asked for testimony; none was offered. Commissioner Luke asked that a work session be arranged for the Board and staff to discuss this item before action would be taken. 5. Before the Board was Consideration of Signature of Order No. 2006-154 and Document No. 2006-539, the Second Amendment to the Pronghorn Resort Lodging Improvement Agreement. Paul Blikstad said that the order makes findings that the amendment is in the public interest. The applicant has been working with County Counsel to draft the appropriate documents. The agreement was required because the resort did not have its overnight accommodations or restaurant accommodations completed when the original document was drafted. Laura Cooper, an attorney with Ball Janik who represents the applicant, said that she has seen the documents and approves. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 3 of 22 Pages Mr. Blikstad added that this extends the time frame per the original agreement. Progress is being made and there is sufficient security to back the agreement. A brief discussion then took place regarding the number of units and lock-offs affecting the overnight lodging, CLARNO: Move approval of Order No. 2006-154. LUKE: Second. VOTE: CLARNO: Yes. LUKE: Chair votes yes. CLARNO: Move approval of Document No. 2006-539 as amended. LUKE: Second. VOTE: CLARNO: Yes. LUKE: Chair votes yes. 6. Before the Board was Consideration of a Decision Whether to Hear Appeals of the Hearings Officer's Decision regarding the Tentative Plat for Cascade Highlands Destination Resort. Commissioner Luke asked if this should be heard because of the time frame. The time expires on November 26, and the applicant is not willing to waive the time limitation. Anthony Raguine said that it may relate to traffic issues. The second appeal has to do with the application not being complete in the first place. He feels the tentative plat should be approved based on the record. CLARNO: Move that the Board does not hear this appeal, due to lack of time or notice, responses and rebuttal. LUKE: Second. VOTE: CLARNO: Yes. LUKE: Chair votes yes. Tom Anderson stated that the claimants have received and acknowledged the opening statement regarding Measure 37 hearings. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 4 of 22 Pages Mark Pilliod indicated that a Measure 37 case that was scheduled for today (Hanson) has been continued to December 4, and the time limitation tolled. 7. Before the Board was a Hearing and Consideration of Signature of Order No. 2006-148, a Measure 37 Claim (Claimant: Sporalsky). Tom Anderson said that the property is located at 20070 Cheney Road, north of City of Bend off OB Riley Road and Glen Vista, within the Bend urban reserve area. It consists of 2.7 acres zoned UAR-10. The property has two houses on it; one was constructed in 2005; the kitchen was removed from the old house, and it is now a guest house to the main residence. The claimants would like to partition the property into two parcels, and the two buildings would then be separate. The value claimed is $173,500. The applicant declined to pay the application fee. Ownership dates back to an October 1970 land sales contact, and it was deeded into the Sporalsky name in 1979. The ownership date would be October 1970 for any future land use application. Bruce White, attorney for the applicant, stated that he reviewed the order and the legal description and finds no problems with it. No public comments have been received, per Legal Counsel. Mark Pilliod pointed out that the staff report said the fee had been paid; this needs to be corrected to show that they did not. Chair Luke asked for testimony; none was offered. CLARNO: Move approval of Order No. 2006-148, as amended. LUKE: Second. VOTE: CLARNO: Yes. LUKE: Chair votes yes. 8. Before the Board was a Hearing and Consideration of Signature of Order No. 2006-149, a Measure 37 Claim (Claimant: Miller). Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 5 of 22 Pages TOM ANDERSON: This property, as you probably all know, is located within the Newberry Caldera of the Newberry National Monument. The claim was submitted by James Miller, an individual. The physical address of the property is 22200 Pauline Lake Road. We have two maps for your reference up here this morning. (He referred to the maps at this time.) The lower one is an aerial photograph, and the actual parcel in question, which is 156 acres in size, is outlined in red. The property is currently zoned open space and conservation, or OS and C. The claimant has indicated a desire in the claim materials to use the property for three things, including pumice mining, geothermal energy development, and ultimately subdividing the property for residential use into approximately 150 one-acre lots. LUKE: Does it extend into the lake? ANDERSON: Yes; this is an interesting phenomenon. It was originally based on old mining claims. The physical description does extend a little ways into East Lake. The amount of the claim for damages are $302.5 million, based on the three uses. There are essentially two issues that are going to come into play when evaluating this claim. The first is the actual ownership and the ownership history of the parcel. The second is the interest in that property for purposes of Measure 37, whether the interest loosely defined within the text of the Measure extends back to the date that the claimant would like, based on the claim materials. Maybe the easiest way to walk you through that ownership history is to start now and work backwards. LUKE: Staff did an excellent job of laying this out. I don't mind you doing it now, but want to point out that as I read through this I found it very easy to follow, and appreciate the work you've done on it. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 6 of 22 Pages ANDERSON: All of that work was done by County Counsel, so I think he deserves the credit. At any rate, I can summarize the ownership history and we can certainly get into any detailed questions you have. The claim was submitted by James Miller, as an individual. Fee title to the property is currently with LPP Resources, a partnership. James Miller is a partner in that group. This ownership dates back to 1988. At that time, the previous owner was La Pine Pumice Company. In 1988 that organization was dissolved and the assets, the ownership of that organization, transferred over to LPP Resources. Prior to 1988, in 1980 title was acquired by La Pine Pumice from Claire Williamson, an individual. Also, there was an option that La Pine Pumice held on that property dating back further. In 1980, title was granted to Claire Williamson from the Federal government based on a previous mining claim that was held by Claire Williamson In 1969, La Pine Pumice acquired a lease and option from Claire Williamson, which then came into play in 1980 when Williamson gained title to the property. At that time La Pine Pumice acquired title from Ms. Williamson. The 1969 lease was for mining rights of the pumice. I'm not sure how far back prior to 1969 that claim may have extended. LUKE: Has it ever been mined? ANDERSON: It has been, and my understanding is that there are several truckloads of pumice mined on that property to this day. At any rate, going back to the central questions of the claim, one is the interest in the property. One of the issues is whether the 1969 date, which is the date requested by the claimant, is sufficient in terms of an interest. Our position as stated in the staff report is that the answer to that is "no"; that it was a mining interest for a specific purpose, held by someone other than Mr. Miller. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 7 of 22 Pages The first issue is ownership. Currently Mr. Miller is a partner within LPP; however, the owner of the property is LPP and not Mr. Miller. Going back to 1988, there was a change in ownership from La Pine Pumice to LPP, even though the assets or interest in those companies transferred one to the other. There was in fact a break in the interest. In 1980, even though there was an option held, the property changed from Williamson to La Pine Pumice. So, basically the staff report before you lays out a recommendation and several contingencies to that recommendation. The first is that the interest held by Mr. Miller in the property is not sufficient to grant a Measure 37 waiver. So, as a partner in the company, based on Measure 37, he is not the owner. So this essentially denies the claim, based on that analysis and that history. However, in the event that this claim is taken to the court level - in other words, if the Order is disputed - there are several contingencies in place based on whatever a court may decide. First, if Mr. Miller is deemed an owner of the property for purposes of Measure 37, within the LPP or La Pine Pumice, that the County's Order would reflect that decision accordingly; and that he would be granted rights essentially back to 1980 or 1988, based on the court decision. Secondly, if the court were to decide that the extent of that interest traveled all the way back to 1969, that the Order would reflect that, and he would be granted, based on the court decision, mining rights. Third, if the court were to decide that basically 1969 is the date for any proposed land use of the property, despite the fact that the interest was limited at that time to a mining claim, the County's Order would reflect that court decision and he would essentially be granted interest all the way back to 1969 as if he had owned it fee title at that time. Again, this is a very complicated case. Mark Pilliod may wish to add comments. MARK PILLIOD: What was presented in the staff report and what Tom has adequately summarized this morning is accurate; I won't elaborate any further unless the Board has questions. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 8 of 22 Pages I do want to make a few additional notes. You have in front of you basically two diagrams. One is the aerial photo, and the second is the zoning map that was adopted in November 1979. This map had the effect of zoning the property open space conservation in November 1979. I think this is important to keep in mind. I wanted to note for the record that the Board can take notice of the adoption of PL-15, the zoning ordinance in 1979. That ordinance was amended in February 1985 by Ordinance 85-002, having to do with geothermal exploration and uses. Also, note PL-20, which is another land use regulation which itself was amended by Ordinance 85-001 in February 1985. I would add that there is a Board Order referred to the staff report dated June 20, 1973; it is uncertain what effect that Order had, because by its terms it was intended to affect private property within the Deschutes National Forest. It is unclear, given what we have with Measure 37, whether the property interest we are talking about, which at the time was still owned by the Federal government, was subject to that Order. The staff report takes the position that it was not affected by the Order, but Measure 37 has kind of turned all of that on its head in terms of whether it is a private interest or not. For the record, I'll just make sure that the record includes a copy of that Order. I think this is basically it. There are some people with the Forest Service who would like to testify this morning, and I believes that Mr. Miller and his counsel are here as well. Unless there are any questions - LUKE: Have you had any written testimony on this one? PILLIOD: The County has actually received two letters and attachments from the Forest Services, and we'll make sure those are included in the record. We have also just today received a letter from Mr. Miller's legal counsel, and I'll let him elaborate on that. LUKE: Has their legal counsel looked at the Measure 37 statement? PILLIOD: I haven't spoken with him about the announcement. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 9 of 22 Pages LUKE: On page 5 of the staff report, you talk about the Leeson and Ward decisions. To me, those were different. For the record, I voted "no" on both of those, even though it was a Board decision. PILLIOD: For what it's worth, the case involving John Leeson is currently being considered in Circuit Court. As a matter of fact, the County's response brief is due this Wednesday. The petitioners in that case have raised the issue of distinction between an individual holding property and a corporation that they might transfer that property to. Of course, this circumstance is different because the individual who has presented the claim in this case, as near as we can tell has never had direct interest in the property. The interest has either been through La Pine Pumice Company or, more recently, the limited partnership. Again, I'll let the claimant's attorney respond to that. LUKE: Is there anyone who would like to speak in favor of this proposal? VICTOR VAN KOTEN: I am an attorney in Hood River, P. O. Box 325, 97031. I am the attorney representing claimants in this matter. LUKE: Instead of reading the Measure 37 statement, we usually hand it out to the parties. We'd be happy to read it if you want. VAN KOTEN: We're okay with it. This claim was initially filed and the claimants represented by Mr. Chris Bedsaul, a consultant here. He's no longer available as he went to work for Deschutes County, and left clients without any representation, so I was retained the end of last week. We do have issues with the recommended Order and have our own version of those issues of property ownership. There is an additional matter with the claim. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 10 of 22 Pages Although not technically signed by the general partners on behalf of the limited partnership that is the current fee title owner, LPP Resources, they did go all through the information, and I have submitted to Mr. Pilliod an addendum, properly signed by the general partners, on behalf of the limited partnership clarifying that LPP Resources is a claimant in these proceedings along with Mr. Miller. LUKE: Does this mean a different clock date? Because in effect by signing this, aren't they potentially a new claimant? PILLIOD: Yes they are. LUKE: So it starts the clock again? If that becomes a claim - when is the clock up on this one? ANDERSON: November 28. VAN KOTEN: In the first place, we do take a position under existing law that Mr. Miller, who is clearly a claimant from the start due to his reversionary interest as a shareholder with the corporation and a general partner with LPP Resources, has an interest in the property and entitles him to be a claimant in this matter. Beyond that, we take the position that we think it is clear that LPP Resources is a current owner of the property and is a claimant. We don't disagree with the summary of the history of this matter, but take the position that the predecessor, La Pine Pumice Corporation, acquired the lease option in 1969 from Mrs. Williamson, the holder at that time of the unpatented mining claims. The lease option provided all the rights of possession and rights to mine and all the rights she had in the property at that time, together with an option to purchase the fee simple title in the property from her when it was properly perfected with a patent. That patent litigation had been going on for years at that time, and went on until 1980 when she eventually acquired a patent. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 11 of 22 Pages The corporation exercised the option to purchase the property in October 1980. The next thing that happened was, for tax purposes in 1988, LPP Resources, a limited partnership, was formed and did a merger under Oregon law with La Pine Pumice Corporation. The surviving entity then was LPP Resources, with the shareholders of La Pine Pumice becoming the limited and general partners in the successor entity, the limited partnership of LPP Resources. LUKE: That happened when? VAN KOTEN: December 1988. The purpose was to comply with the amendment to the - LUKE: I have a question. I remember passing legislation that allowed limited liability corporations in the 1995 or 1997 session; were they allowed in the 1980's? VAN KOTEN: Yes. LUKE: Limited liability corporations weren't, because I remember we passed that again in the 1990's. VAN KOTEN: Maybe I misspoke. Limited partnerships. Not a limited liability corporation. Excuse me. I've cited it in a summary that I gave to Mr. Pilliod. There was a section that provides for mergers of corporations into other entities, and a statute that outlines what the effect of that is. It generally provides that the corporation becomes part of the surviving entity, the property that was owned by the corporation becomes vested and is owned by the surviving entity; all the rights, liabilities, lawsuits, and everything that existed before just continues in the surviving entity. And this whole thing was done purely for tax purposes. The shareholders of the corporation then became the partners of the limited partnership, and it is our position that this was purely a change in form for tax purposes, and not an ownership change within the meaning of Measure 37. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 12 of 22 Pages So what we have from the standpoint of the claimant, LPP Resources, is the acquisition of an interest in property in 1969, because the law is clear, and I've cited authority in my memorandum, that an unpatented mining claim is an interest in real property; certainly a lease and an option are an interest in real property. So, within the meaning of Measure 37, the claimants had an interest in real property dating back to 1969, and it carries through. At this time, we are entitled to a waiver from the Ordinances that restrict mining, geothermal development and residential development. There was contention in the report, which didn't become available until Friday, that indicates the position that possibly in 1969 the uses under that unpatented mining claim were limited to mining that this means the interest now that is entitled to a waiver is limited to mining. My position is that this isn't what Measure 37 says and we don't agree with that position. There was an interest in 1969 and it continues through the ownership within the meaning of Measure 37. At this time we are entitled to a waiver for all three of those uses. LUKE: There are a lot of people who disagree about what Measure 37 means.. Are you going to need additional time since you are new to this case, to do any more written testimony for the record, or do you feel you have enough in there ? VAN KOTEN: I think we feel we have enough in the record. There was some discussion in the report about the explanation of calculation of value for each of those uses, and we are certainly prepared to provide additional information about that. We have not obtained an appraisal, and it appears the County Ordinance does not appear to require it. With respect to mining, there are ways to calculate the volume of pumice and the claim refers to that and identifies a price for the pumice. We feel that calculation of value for purposes of mining should be clear enough. With regard to geothermal development, we have also provided the detail that calculates a reasonable estimate. We've done the same for residential. I think as it was commented in the report, it's a situation where the County is not going to pay the claim anyway. The standards and requirements of proof are somewhat less, and if you have a situation where it is clear there has been loss, and a reasonable explanation of that loss should be sufficient. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 13 of 22 Pages LUKE: Again, I am asking, because of when you got the material, if you are going to need additional time to put anything else in the record. And if the answer is no, that's fine. If you need additional time, it can be arranged. A "yes" or "no" works. Or would you like to wait and see what else is presented? VAN KOTEN: I'd like to see what else is presented. LUKE: Do you have anything else? VAN KOTEN: No. LUKE: Is there anyone else who wants to testify in favor of the claim? No response was given. Is there anyone who wants to testify in opposition to the claim? BOB DEANE: I'm from the Deschutes National Forest, 1001 SW Emkay Drive, Bend, 97702. LESLIE WELDON: I'm Forest Supervisor for the Deschutes National Forest, same address. I'd like to open by introducing Bob again. He is the staff responsible for all of our lands and boundary management activities for both the Deschutes and Ochoco National Forest. He and his staff have been the folks who have helped to assess and determine what the Forest Service, USDA response is in light of this claim. I'll let Bob go over some of the materials here. DEANE: We submitted two letters to the County and State for the Measure 37 claim, which is also before the State. So I won't go into detail about those, but I would like to highlight a few points that were raised in those letters. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 14 of 22 Pages While the matter of this Measure 37 claim is one between a private party and Deschutes County, the legitimacy and outcome of the claim is of great interest to the Deschutes National Forest. The reason is because the 157-acre parcel that is owned by LPP Resources lies in the center of the caldera zone of the Newberry National Volcanic Monument. The Monument was established in November 1990 by an Act of the U.S. Congress, and I quote from that Act: "In order to preserve and protect for present and future generations these remarkable geologic land forms and for purposes of providing for the conservation, protection, interpretation and enhancement of this ecological, botanical, scientific, scenic, recreational, cultural and fish and wildlife resource". And the effects of the potential development as a result of this potential Measure 37 claim would significantly impact the National Monument lands that surround this parcel. With respect to the claim that was filed by Mr. Miller, we'd like to highlight the following points. First of all, Mr. Miller is not currently the owner of the property, which staff has recognized. And at various times since 1969 title to the property has been held by a limited partnership in the form of LPP Resources, a corporation in the form of La Pine Pumice Company, an individual other than Mr. Miller in the form of Claire Williamson, and also the United States of America. With all these changes in ownership, among these different entities, it is difficult to comprehend how Mr. Miller could establish a claim of ownership that dates back to 1969. However, if there is a right of ownership, some of the rights that are claimed by Mr. Miller did not even exist in 1969. Title to the property was held by the United States until 1980, and land use was governed by the laws and regulations of the United States, and managed as a part of the Deschutes National Forest. We recognize that at that time mining for pumice was a right held by Claire Williamson through the unpatented mining claim that she held at that time. But no authorization existed for geothermal energy development or for development of residential uses at that time. Finally, the jurisdiction over land use and zoning did not pass to the State of Oregon or Deschutes County until title to the property passed into private ownership when the mining claim was patented in 1980. In general, we agree with the staff report prepared by County Counsel. We'd be glad to answer any questions. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 15 of 22 Pages LUKE: Are you going to need additional time to get anything in the record? DEANS: We haven't seen the additional information that the applicant submitted today. PILLIOD: Just to supplement that answer, this morning the County was given a copy of the lease and option that was executed in 1969. The staff report mentions that this information had not at the time been submitted. It was received this morning. Last week I was in touch with representatives of the Forest Service in Portland, and the question I had for them had to do with the dispute, the litigation if you will, surrounding the unpatented claims of Ms. Williamson. They've archived a lot of those materials. They are available, but I'm really note sure that it makes any difference for the Board's purposes, because there doesn't seem to be any dispute that the lease option was executed in 1969 between La Pine Pumice and Ms. Williamson. Previous to that time, except for the unpatented claim to mine pumice, along with three other claim sites, the property was held by the federal government. We could try to dredge those files up, what did they dispute and how did the dispute resolve itself. Actually, Kevin Harrison of Tom's (Anderson) staff was able to find an old Bulletin article, undated, that actually discusses the dispute and the fact that it was eventually resolved. I'm guessing that the article was dated probably in the late 1970's. It doesn't refer to La Pine Pumice Company, but it talks about the four unpatented claims, the dispute with the Forest Service and, as a result, Ms. Williamson was able to retain one unpatented claim but gave up her interest in the other three. Other than that background, I don't know that it really affects how the interest in property still needs to be determined by this body, from 1969, from 1980, from 1988, depending upon which entity we're dealing with. I have material that could be produced, but I wouldn't recommend that we do that. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 16 of 22 Pages LUKE: The reason I am asking both parties is because we had another Measure 37 claim where we actually changed the record after it was already in court, and that has come back to us. If we have a little bit of time on the clock and both parties would like to have some additional things in the record, or the County believes they need some additional things in the record, I'd just as soon leave the clock open if we need to. That's the reason I asked the question. Any questions? CLARNO: No, but there are a lot of things, and it seems like a little more time would be beneficial. LUKE: Anything else? Anyone else want to testify? The clock on this is what again? PILLIOD: November 28. If I could comment; the staff report and in fact the Order both have approached the application as submitted originally, not as it has been changed today. If the Board is inclined to have a staff recommendation relative to the change, that is, what about LPP Resources, we would appreciate more time to modify or expand on the staff report and provide a revised recommended Order. Obviously we are not responding to the different questions. LUKE: How about November 20. How long would you leave the written record open? ANDERSON: I have somewhat of a legal question. Counsel for Mr. Miller has requested that the claim be modified, in essence to substitute LPP Resources as the claimant as opposed to James Miller as the claimant. And as was mentioned, that will have an effect on the details within the staff report and Order, and may affect the ownership string. LUKE: I would have a tough time doing that myself. We have the original application that staff has spent a lot of time on, and based the entire report on the original application, and to modify it now, I'd have a hard time doing it. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 17 of 22 Pages I would think you'd need a whole new application, because it is going to take time to go through that process. Again, you already have part of the record there, so it would be a little easier this time, but to me it is another process altogether. Commissioner Daly will have to read the record on this and make his own determination. Do you want to modify the application? CLARNO: Is modifying the application pretty extensive? PILLIOD: The material that was submitted this morning to my staff doesn't literally substitute LPP Resources for Mr. Miller; rather, it asks that the County consider LPP an additional co-claimant to Mr. Miller. So the answer to the initial question, whether Mr. Miller as an individual is entitled to the remedies provided under Measure 37, is one question. If the two had come in together initially, the staff report could have addressed each interest in turn. But, as you know, the report was prepared last week and its focus is strictly on Mr. Miller. We would require additional time to at least prepare an addenda or new report that addresses this adjustment in the claim. I guess the first question that the Board has to ask or decide is whether it is willing to allow a modification in the claim to include LPP Resources as a co- claimant; or whether they should submit a new claim on behalf of that entity. Again, if the matter had been submitted by both initially, the County would have responded and would not have required separate claims in each case. But we are being presented with a proposal to modify it on the date of the hearing. CLARNO: Which is probably partly a result of the new attorney representing Mr. Miller and the others. PILLIOD: Yes, he admitted, and I don't think anyone would dispute the fact that the consultant dropped the ball, and should have referenced both entities, Mr. Miller and the entity, as co-claimants. But it didn't happen. LUKE: That's not the County's position. It's a personal opinion expressed by County Counsel. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 18 of 22 Pages PILLIOD: Actually, you can look at the claim form and see that LPP is not listed as a claimant. LUKE: Measure 37 is tough enough without setting precedent at one hearing that you are going to have to live with perhaps further down the line. To allow a modification of an application the date of the hearing is not fair to those who might want to oppose it, and didn't oppose it because of the way it was written. We do mailings to the surrounding owners, which we don't have to do. I think it is a good idea. But I would have a problem allowing a modification of an application, especially the day of the hearing. PILLIOD: I am just pointing out, that is the first question for you to answer. LUKE: More because of the precedent, not necessarily just this application. I have no problem of this being in the record. If it does get to court, they can make a decision on that, too, if they so choose. But I don't want to set precedent with something like this. CLARNO: With the LPP coming in, it is a modification such that it is another entity. The clock would start again with a new application, is that correct? PILLIOD: Yes. LUKE: Which they could do anyway. I would think it would probably be a court interpretation as to whether it is a new application. I mean, just because Legal Counsel says it is, doesn't mean under Measure 37 that it is. It's his best legal opinion. CLARNO: But if you have a different name or entity, it's a new application. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 19 of 22 Pages PILLIOD: Well, it's a different entity. The County has processed Measure 37 claims that have been submitted by the owners, both in their individual and corporate capacities. And these were considered joint applications from those individuals and the entities. This case was submitted strictly by an individual. It made reference to both La Pine Pumice Company as well as the LPP, but they were not listed as claimants. That's the way it was presented. Frankly, the factual material presented on behalf of LPP and on behalf of James Miller will not be significantly different. It will be essentially the same record. But the difference is that LPP is now acknowledged to be a claimant, the party in title presumably. It's that focus that we really haven't had in this presentation. CLARNO: I think I'm willing to concur that there should be a new application to address this modification. LUKE: Is this the only thing you think we need to decide on today? PILLIOD: If you decide that a person can amend an application on the day of the hearing by including a new corporate entity, I would request the matter be continued so we can prepare a new staff report and recommendation. LUKE: It's coming back to us on the 20th anyway. Did you want to add anything? VAN KOTEN: I would like to comment, as Counsel explained, the facts of the claim are complete and by the addition of LPP Resources the only thing that I can see that it does is create the legal issue of whether the merger of the corporation into the limited partnership is a change of ownership in respect to Measure 37. It seems to me that everything else, as far as dates, ordinances and everything else, are all identical. LUKE: This isn't the only Measure 37 claim we are going to get and it's not the only Measure 37 claim we've had. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 20 of 22 Pages I learned early on in land use that you may see something that seems a little innocent at one hearing, it becomes a precedent. One of our previous Commissioners made a decision on a previous case, one that I voted no on, came back as a precedent and an argument for an attorney on another case. He said, that's not what I meant, but that is what he did. I'm worried more about setting precedent by allowing an application to be amended the day of the hearing. We go to a lot of trouble to mail to the people in the area; we don't have to do that, but it's part of what we do, based on the application. If the Board turns this down, if I vote no, it's because of the precedent it might set. It has nothing to do, in my opinion, with the document itself. I believe it does create a new application. But I'm not an attorney. Someone else will probably determine that in the long run. I don't like the precedent it sets. If we do it here, there's nothing to stop us from having to do it on other ones. VAN KOTEN: What is happening on November 20? LUKE: We are going to leave the record open until the 17th at 5:00 p.m. for written testimony only, from anyone who is interested. The Board will deliberate again on November 20 and hopefully will make a decision at that time. If you want to submit additional information into the record you can until that Friday at 5:00. Does that sound okay? Anything else on this matter? PILLIOD: Does the Board want staff to provide any response or comment on the question about converting or the merging of the corporation into the limited partnership? Are you interested in any more legal feedback from staff on that? LUKE: Do you have additional feedback on this? PILLIOD: Not at the moment, but I would before November 20 if you would like it. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 21 of 22 Pages LUKE: Anything additional should be shared with the Board. If Commissioner Daly wants to vote on this, he will have to meet with you and read the record. If there is additional stuff, it should go to all three Commissioners. CLARNO: My answer is yes; any supporting information you have would be most helpful. LUKE: We are closing the hearing on this claim. 9. Before the Board were Additions to the Agenda. No other items were offered. Being no further items to come before the Board, Chair Luke adjourned the meeting at. 11: 40 a. m. DATED this 30th Day of October 2006 for the Deschutes County Board of Commissioners. /7 Luke, Chair ATTEST: Michael M. Daly, Commissioner Recording Secretary Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 22 of 22 Pages Bev Clarno, Vice Chair ° Q < Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc BUSINESS MEETING AGENDA - LAND USE ISSUES DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, OCTOBER 30, 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. A PUBLIC HEARING and Consideration of First Reading of Ordinance No. 2006-031, Amending and Adding Clarifying Language for Subdivisions in the Urban Unincorporated Community of La Pine - Steve Jorgensen, Community Development Department 3. A PUBLIC HEARING and Consideration of First Reading of Ordinance No. 2006-032, Amending Subdivision Code regarding Minimum Road Design Standards and Minimum Bike Facility Standards - Steve Jorgensen, Community Development Department 4. A PUBLIC HEARING and Consideration of First Reading of Ordinance No. 2006-033, Amending and Adding Bicycle Parking and Bike Commuter Requirements - Steve Jorgensen, Community Development Department 5. CONSIDERATION of Signature of Document No. 2006-539, the Second Amendment to the Pronghorn Resort Lodging Improvement Agreement - Paul Blikstad, Community Development Department; Laurie Craghead, Legal Counsel 6. CONSIDERATION of a Decision Whether to Hear Appeals of the Hearings Officer's Decision regarding the Tentative Plat for Cascade Highlands Destination Resort - Anthony Raguine, Community Development Department Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 1 of 5 Pages 7. A HEARING and Consideration of Signature of Order No. 2006-148, a Measure 37 Claim (Claimant: Sporalsky) - Tom Anderson, Community Development; Mark Pilliod, Legal Counsel 8. A HEARING and Consideration of Signature of Order No. 2006-149, a Measure 37 Claim (Claimant: Miller) - Tom Anderson, Community Development; Mark Pilliod, Legal Counsel 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.) Monday, October 30, 2006 10:00 a.m. Board Land Use Meeting 11:00 a.m. Administrative Work Session Tuesday, October 31, 2006 8:00 a.m. Annual Meeting with Sunriver Service District Board Members Wednesday, November 1, 2006 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, November 2, 2006 7:00 a.m. Regular Meeting with the Redmond City Council, at the Fire Hall Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 2 of 5 Pages Monday, November 6, 2006 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, November 8 2006 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, November 9, 2006 12:00 noon Regular meeting of the Audit Committee 3:00 p.m. Regular meeting of the Fair Board, at the Fair/Expo Center Friday, November 10, 2006 Most County offices will be closed to observe Veterans' Day. November 13 - 17.2006 Association of Oregon Counties Conference Monday, November 20, 2006 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session Tuesday, November 21, 2006 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, November 22, 2006 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, November 23, 2006 Most County offices will be closed to observe Thanksgiving. Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 3 of 5 Pages Friday, November 24, 2006 Most County offices will be closed (unpaid holiday). Monday, November 27, 2006 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session Wednesday, November 29, 2006 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, December 4, 2006 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session 3:30 p.m. Local Public Safety Coordinating Council (LPSCC) Meeting 5:30 p.m. Joint Meeting of Planning Commission and Board of Commissioners regarding Destination Resorts Wednesday, December 6, 2006 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, December 11, 2006 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session Wednesday, December 13, 2006 10:30 a.m. Youth Challenge Graduation 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, December 14, 2006 3:00 p.m. Regular meeting of the Fair Board, at the Fair/Expo Center Board of Commissioners' Business Meeting Agenda Monday, October 30, 2006 Page 4 of 5 Pages Monday, December 18, 2006 12:00 noon Regular Meeting of Department Heads and Commissioners 1:30 p.m. Administrative Work Session Tuesday, December 19, 2006 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, December 20, 2006 1:30 p.m. Administrative Work Session Monday, December 25, 2006 Most County offices will be closed to observe Christmas. Wednesday, December 27, 2006 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, January 1, 2007 Most County offices will be closed to observe New Years Day. Wednesday, January 3, 2007 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 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' Business Meeting Agenda Monday, October 30, 2006 Page 5 of 5 Pages