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2007-1379-Minutes for Meeting June 18,2007 Recorded 7/23/2007DESCHUTES COUNTY CLERKOS ~~1 ~~~~•13~9 NANCY COMMISSIONERS' JOURNAL 01~Z3~Z001 ~9;Z9:31 AM 11111[I3I I BIIIIIIIII III) II III 1 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 and Page or as Fee Number ' ` 1 s o to O { Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc MINUTES OF BUSINESS MEETING - LAND USE DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, JUNE 18, 2007 Commissioners' Conference Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Michael M. Daly, Dennis R. Luke and Tammy Baney. Also present were Mark Pilliod and Peter Werner, Legal Counsel; Tom Anderson and Will Groves, Community Development; seven other citizens; and media representatives Jeff Mullins of KBND Radio and Chris Stollar of The Bulletin. Chair Daly opened the meeting at 10:00 a.m. The Measure 37 opening statement had already been distributed. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Approval of Document No. 2007- 263, Release of a Previously Recorded Development Agreement, SP-88-36. Will Groves gave a brief overview of the document, which relaters to a property ODOT wishes to reacquire. The property is now within the City limits of Bend. LUKE: Move approval. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 1 of 13 Pages 3. Before the Board was a Hearing and Consideration of Signature of Order No. 2007-109, a Measure 37 Claim (Claimant: Cyrus). Mark Pilliod said that the matter was continued from May 15; the claimant wishes to furnish additional information which is not yet ready. They would like to continue the hearing again until July 23, 2007. Chair Daly stated that a letter from Paul Lipscomb has been received regarding this claim. It will be part of the record. BANEY: Move approval. LUKE: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 4. Before the Board was a Hearing (continued from May 15) and Consideration of Signature of Order No. 2007-110, a Measure 37 Claim (Claimant: Central Electric Cooperative). Tom Anderson gave an overview of the claim, which is one of 19 separate claims. The others will be scheduled at later dates. This particular line is the Jordan Road to Black Butte segment. CEC has requested a Measure 37 waiver to the time when easements were acquired for the line for purposes of upgrading the line to serve the community. It may include increased height and capacity. The amount of damage claim is based on the length of the line; they indicated $2.6 million per mile for this particular line, 6.3 miles = $9.36 million. Peter Warner referred to an oversized map showing the vicinity of the line in relation to highways, cities and Forest Service and privately owned properties. The leases in large part were granted in 1971. Subsequent easements specified locations further. Copies of all of the easements are included in the record. The latest easement was granted in 1972. Mark Pilliod stated the purpose of obtaining a Measure 37 waiver is to avoid having to go through the land use process to upgrade transmissions lines. Commissioner Baney said she is concerned with a public entity going after a Measure 37 claim. Mr. Pilliod replied that the arguments presented by the claimant's attorney includes those arguments. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 2 of 13 Pages The Board previously determined that it is a private entity but has rights relating to providing utilities to the public. A Circuit Court decision indicated that this entity can present a Measure 37 claim. The Board ultimately determined the claim is valid. Commissioner Baney said that as a point of principle, she goes back to the definition of an easement, which is a use, not ownership. She asked if an easement is ownership under Measure 37. Mr. Pilliod stated there are two different forums. Whether it is a property interest under Measure 37, an easement allows a utility to be placed within the confines of the property. Sometimes it would be in a public right of way. The easements were acquired through private. transactions, allowing CEC to occupy that area for a particular purpose. They have a corresponding right to keep the person who owns the property from interfering with this right. You can sell easements, if there is a market for it. It has no value in this case except for public utilities. It is a property interest that may be sold; it depends on the easement itself. If it is broad enough, any public utility could in theory occupy that space. The Board needs to decide if the easements represent an interest in property and if they do, the acquisition dates must be considered. Commissioner Baney asked if they are limited easements. Mr. Pilliod said the easements that were originally obtained did not specify any particular use. Commissioner Luke said they are not a public entity; how they elect their Board and distribute profits is a bit different. Commissioner Baney stated that as a public utility, she thought that they would be considered a public entity. In the case regarding whether CEC qualifies is a matter that is being argued in the Court of Appeals. The Circuit Court agreed with the Commissioners that they are a private entity. The properties being questioned today has been separated into three distinct groups. Most will be addressed later this year. Chair Daly opened the hearing at this time. Attorneys Martin Hansen and Mike McGhee, Dave Martin of CEC, and senior CEC engineer M. L. Norton came before the Board to answer questions. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 3 of 13 Pages Mr. Hansen stated that CEC formed under Oregon Corporate statues, and is owned by members who receive power; they elect their Board. The organization is not regulated heavily by the Public Utilities Corporation; the owners and members regulate the rates and service. In 1972 they were given the exclusive right to put in the power lines by property owners for the Jordan Road to Black Butte segment. Because of a power shortage in the Sisters area, the line needs to be improved. Their claim was challenged by the Cyrus Family and Thornburgh Resort. Judge Tiktin ruled it is not a public entity, and that easements are an interest in property. In this case, the easements could be transferred or sold. This was part of the argument last year. The same power problem exists at this time. Commissioner Baney asked if any opposition has been made to the claim. Mr. Anderson said that he asked CEC to provide a list of all of the properties tied to this claim and property owners located within the notice area for all 19 claims. Those individual who have entered written comments will be noticed of future meetings. Only four letters were received from other property owners. Mr. Pilliod said the claims were filed last year and a response was required within 180 days. The legislature has adopted a bill that gives jurisdictions handling Measure 37 claims a little more time to handle these claims. The Board can carry the matter for up to another year. Two more claims similar to this one will be addressed this summer. Mr. Hansen said that the need is there now, but the Court of Appeals process is fairly slow. Commissioner Luke asked if any of the work ahs already been done. Mr. Hansen stated that some of the work has been completed even though the Court of Appeals has not made a decision. CEC had to balance the need for power in the Sisters area against decisions that had not yet been made. The Board of Commissioners and the Circuit Court previously agreed that they have a right to proceed. Commissioner Baney asked if what they are building is adequate. Mr. Norton stated it should be adequate for current needs. He added that the pervious line was adequate, but with a growing population and higher demand, the poles need to be taller, stronger and provide adequate separation between the lines, which are also heavier. He went on to explain the type of poles and how the lines would handle the additional need. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 4 of 13 Pages Mr. McGee said that Judge Tiktin had asked if this was beyond the scope of the original easement (changing the structure from wood to steel). He has determined that the use was the same; this is supported by a case decided by the Oregon Supreme Court regarding a forest railroad line. Commissioner Baney asked if the easements are restricted in any fashion. Mr. Hansen stated that they are restricted to build, operate and maintain an electrical transmission system. They are allowed to keep up with the technology necessary to operate. However, they could not use the easement for a gas line or other uses. Testimony was opened to individuals who own property within the notice area. Michael Peterkin, representing the Cyrus family; and Matt Cyrus, spoke in opposition of the latest application by CEC. The property in question is owned by Keith and Connie Cyrus. Chair Daly asked if they are within the notice area. Mr. Anderson stated that the Cyrus property is at the terminus of the line. One of the poles is located on the Cyrus property. Mr. Peterkin stated that CEC wants a waiver of all regulations. They are not regulated by PUC and have no oversight; the National Electric Safety Code is the only thing that regulates what they do. This is significant, as they are asking for a free hand; this has an effect on the citizens. When CEC began to build the Jordan Road line and completed it, no development permit was sought from the County. He observed that if this is granted and all regulations waived, CEC will have no oversight by any entity at all. This Measure 37 claim is significant for that reason alone. Commissioner Luke said Cyrus have a Measure 37 claim; how is this different from a private person. Mr. Peterkin said that if they wanted to site a resort development on the property, they would still have to comply with certain regulations such as traffic impacts, building permits, etc. The County just doesn't let an owner do whatever they want. There are certain restrictions. Commissioner Baney had asked about a property interest and an easement. The point is - Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 5 of 13 Pages Commissioner Luke said that if there wasn't a Measure 37 claim; for instance, if Pacific Power asked for an easement to run power lines and I granted it, what regulation does the County have over this? Mr. Peterkin stated that LUBA and the Court of Appeals denied their application for a power line. It crosses farm lands and a surface mining area. The easement should be just one step of the process. There should be additional oversight. He asked when the County could turn its back on the construction of a 90-foot pole or any structure that can fail or potentially harm the public. CEC engineers probably find the right specs but the County denies certain plans all the time. The citizens cannot fight an 800-pound gorilla like CEC. They have tremendous resources to fight the citizens. It is difficult to defend or defeat when it comes to property rights. They went from 30-foot to 80-foot poles; it is a big impact. The citizens will be affected. Because this is a quasi-judicial hearing or a contested case hearing according to your regulations, he questioned whether the notice to the affected parties was adequate. Commissioner Luke stressed Deschutes County does more than most counties. Mr. Peterkin stated that he thinks a quasi-judicial hearing is required, and that the notice to the affected parties is not adequate or effective, since it does not properly inform them of the significance of the actions of CEC. Commissioner Luke said that Measure 37 does not require notice. The County decided to do the same kind of notice used for land use actions. Mr. Peterkin stated that under due process rights, this is significant. He feels a quasi-judicial hearing is required. Commissioner Luke said that Mr. Peterkin is suggesting that Measure 37 requires the same notice as a land use action. Deschutes County's is the most liberal in the notification process. Thinking otherwise would mean that all of the claims granted in the past would be invalid. Mr. Peterkin stated that notice might not have been proper. That's why they were presented with the Measure 37 opening statement. He added that CEC is really a public utility is using Measure 37. The whole purpose of Measure 37 was to decrease the burden on private parties. The whole idea of public versus private is not correct; the focus should be on what they do. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 6 of 13 Pages They are a public carrier of power, like a railroad carrying people and products, shows that there is nothing private about CEC. They have condemnation powers, and no private corporations have this. Mr. Hansen has noted that CEC has an exclusive territory to provide power. It is true that members of the public are its members, but they are also the city of Sisters, the Sheriff's Office and all people who have businesses open to the public. There are no private companies that have an exclusive area granted to them by the State. What they want is the benefit of being a public company but none of the burdens. Also, their communications lines are not just for CEC use. They have underbuilt and have subsidiaries using them. The difference between CEC and Pacific Power is negligible because of what they do. The easements themselves are public in nature, even though it is a cooperative. CEC would not exist unless the Legislature created a statute relating to electric cooperatives; therefore, they exist because of legislative action. There is nothing about them that is private. Commissioner Luke asked that regarding the existing easement that had power lines already, are phone and cable allowed. Mr. Peterkin stated that these kinds of cases can't be netted up in a simple decision. You have to look at it segment by segment, and what was granted in each easement. There could be more or less exclusive language. When Mr. Hansen said farmers out there originally just wanted power, they assumed there would be power lines below the trees to serve their needs. If you go back and ask the intent of the farmers, their answer would have been simpler. This is like a land use action, for instance an easement for a road that now might serve a big development. The burden is similar. There are 72 easements at 20 feet, and they can't put those lines on that space. The engineers allude to that, but have not yet been depositioned. What they have is an exclusive territory, condemnation power, are supplying power to the members, and the members don't have to do anything. They automatically become members by buying their power. It is his opinion that the easements and the company are not private, and are not eligible for Measure 37. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 7 of 13 Pages Judge Tiktin's decision was based on a limited purview through a writ of review. He could not take new evidence and had a very restricted manner of reviewing your decisions. One problem is that the prior decision was based on an incomplete record. There were decisions by Judge Tiktin regarding discovery violations in the Cyrus versus CEC case, and one for the County. They were significant, and the refusal to provide discovery and give the whole story to the Board provides a new look to this issue. The Board did not have all of the information previously. (A copy is attached.) Judge Tiktin had said there was a discovery violation, and CEC withheld documents that didn't get to the Board. This public body had a right to receive all of the information, and in particular the Rose documents regarding the 2001 easements and right of way for CEC. He said this is not a mistake regarding discovery. The Board should not be bound by its previous decision since documents were withheld. Commissioner Luke asked that he not impune somebody's motives; this is not allowed. The situation is difficult in any case. Mr. Peterkin provided a transcript of part of Judge Tiktin's comments regarding the situation. He said that he doesn't want to impune, but when the chronology is examined and what documents were not produced, there is a question about what was going on. He said his point is the Judge's decision in the writ of review was very limited. He recognized in a trespass case that discovery was not properly provided. He suggested that the Board takes this up again and look at it fresh. Mr. Peterkin stated that his next point is that the City of Bend did find against CEC when they asked for a Measure 37 blanket waiver. The Board might want to look at why they denied it. They thought CEC was public in nature and did not qualify under Measure 37. He said that when it comes to State law, his position is that the Board cannot waive State regulations. This causes a problem because it is Sate regulations that prevented CEC in the past from doing what they wanted to do. The LCDC granted a limited waiver on a line; they may have to go back to DLCD and ask for a contested case hearing. Mr. Cyrus noted that construction commenced before that hearing occurred. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 8 of 13 Pages Mr. Peterkin said that he noticed in the staff report on Exhibit B that information on some easements may not be available. He asked to what extent this has bearing on this claim. He urged Counsel and the Board to look at the individual segments to determine if Measure 37 is appropriate. There should be a segment analysis; as stand alone documents they may not be the same. Some may allow for reconstruction or a higher use, and others may not. Like any other easement, you have to look at the width, the use contemplated by the parties, historical use, and the intent. Mr. Cyrus stated that depending on whether the line is in the easement, they may have a 1982 prescriptive easement instead of a 1971 easement. Some were not built where they were defined. This was remanded back to clarify locations via surveys. The County surveyor may want to verify they are where they are supposed to be. Mr. Peterkin added that the County Surveyor notes of when and where are interesting. In regard to value, CEC is saying they will suffer a huge loss. They are trying to equate this loss with burying the line. Based on information we have uncovered, they have a line down Highway 126, and this issue will go before the Board at a later time. It has the capacity of carrying 115 kb. When you look at the loss, there is none, as they could route down Highway 126 line for at least the next ten years. Mr. Cyrus pointed out that it goes from the BPA substation, and routes down around Eagle Crest. It was built in approximately 1981 without permits at that time. It replaced the Jordan line, and became the new transmission line to the Sisters area. Commissioner Luke said that he mentioned some may be located outside the easement. He asked if the waiver is for the recorded interest. Mr. Pilliod stated that the purpose of the recommended Order identified documents that provide a description of the easements. To the extent that there are violations alleged regarding the terms of the easement, i.e. the trespass issue, Mr. Peterkin submitted material from the Circuit Court regarding discovery violations. That is a trespass case between the Cyrus' and CEC. In a separate matter the Court decided the challenge to Measure 37 granted by this Board. There were a lot of discussions about whether they have been operating outside the confines of the easement. Those are subject to trespass laws. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 9 of 13 Pages Commissioner Daly observed that the individual property owners would have to deal with that. Mr. Pilliod added that it is not for this Board to decide. Mr. Peterkin stated that this has bearing on the Measure 37 waiver. If the line is located outside of the easement, CEC would be forced to claim an easement by prescription, or adverse easement. This would show a different waiver date. It is critical that CEC present to the Board a survey showing whether they are within the easement, and whether their 115 KB line can stay within a 20-foot easement. Commissioner Luke said they may be able to move back into the easement. This isn't known.. It's not simple to do that, but it is an option. Mr. Peterkin stated that in theory they could do that. With no oversight or regulation, no permits and no waiver, they did that at the Cyrus'. This was harm to a private property interest. They have so much power that they can go against a property owner. Erosion is a troubling aspect of their application. The County should apply land use regulations and ordinances. They are transmitting electricity to the public and their system is public in nature. What are citizens going to say when they are looking at these poles in front of the snow capped mountains? There was a firestorm of problems at Eagle Crest, as they were upset with the power poles. Being no additional opposing testimony, rebuttal was opened. Martin Hansen said that construction last summer ended up about 300 feet off the Cyrus property; another pole is 600 feet off. Underbuild can be cable or power lines to homes; that is part of the distribution process. If broadband wants to attach, it is under PUC regulations so that no additional poles are added. Anyone who wants to attach has to have their own easement, though. Once they get it, CEC has to allow them to attach. Blanket easements are not 20 feet wide. They are allowed anywhere on the property. These were built on the proper space. The limited review of Judge Tiktin was at his choice; he wanted a writ of review. This was a valid, rational decision based on competent evidence. The only time it was remanded back to the Board was because of an error in an exhibit; the legal description was corrected. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 10 of 13 Pages A transcript is done by a certified court reporter. The one offered today is not complete nor is it in context; it is based on a trespass case, and is not part of the record of this issue. Judge Tiktin felt it would not change anything. A State waiver is not required in this case. The County enforces land uses here. It is before the Court of Appeals; LUBA did not appeal. The unavailable easements are on U.S. Forest Service lands. The last point is, last year there was no opposition from Eagle Crest. They know the power is necessary. Some of the statements given today were out of context or do not relate to this case. Commissioner Baney asked that he speak to the question of using Highway 126. Mr. Hansen stated that 126 goes to Sisters. Jordan Road is part of the loop system that helps to avoid failures. 126 goes a different direction. The loop system is not yet complete, but is in place for Sisters. This is not relevant to these discussions. Commissioner Luke stated that is has been suggested that these are contested case hearings and notice was inadequate. This type of notice is not required for Measure 37 cases. Mr. Hansen observed that notice was not required. This also was brought up last year. The other case had to do with a State waiver and who reviews it. The Court of Appeals should review it directly. This has nothing to do with notice or the County process. Commissioner Daly asked is a permit is needed to place power lines. Tom Anderson stated that simple answer is, utilities are exempt. They require no building or electrical permits. Sometimes land use permits are needed; that is why CEC is before the Board today. The requirements can be different depending on the zoning. Commissioner Daly asked what would happen if they had to go through the process. Mr. Anderson said that it depends on the zoning; in this case, there are multiple zones. They could seek land use approval to upgrade the line; they tried this originally. They could go for criteria in an EFU zone. They also could apply for a claim that the use has been there, and is nonconforming. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 11 of 13 Pages If the Board issues a Measure 37 waiver, it does not approve a use, just establishes the ground rules for an application. They could apply for non- exempt procedures that were in place at the time of the easements, and the County would have to determine what rules were in place at that time. Commissioner Baney asked if they cross-reference line placement and the easement. Mr. Anderson replied that in any development, there is a certain burden on the applicant to place a structure or whatever where it is going to be placed. The County does not always require a survey. If it is beyond the boundaries, it becomes a civil matter between the parties. For instance, if a house is built in an improper location, it becomes a code violation and the owner has to correct it. Commissioner Daly asked if the meeting should be opened to further rebuttal. Mr. Pilliod stated that it depends on whether new information was given, but not usually. The opponents indicated they rest on the record now before the Board. Commissioner Baney stated that although she reviewed the materials, there is a lot of information and she also heard testimony she didn't know previously. She wanted a chance to digest what has been heard and submitted. Commissioner Daly said that he wanted to disclose a potential conflict of interest, as he is a member and customer of CEC by virtue of where he lives. Commissioner Luke added that this is a complicated issue, and he sees no problem in allowing additional time to review the information. The group discussed setting a decision date. Mr. Pilliod said the hearing is concluded, and notice would be published as usual with an agenda. It is not necessary to set a date certain. The Commissioners decided this should be added to the agenda of the June 27 Board meeting. 5. Before the Board were Additions to the Agenda. None were offered. Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 12 of 13 Pages Being no further items to come before the Board, Chair Daly adjourned the meeting at 12:05 p.m. DATED this 18th Day of June 2007 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Minutes of Board of Commissioners' Business Meeting Monday, June 18, 2007 Page 13 of 13 Pages Tammy Ba , Conti sioner ~`O-TE S ~ G to 'A 0 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.or~z BUSINESS MEETING AGENDA - LAND USE DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, JUNE 18, 2007 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, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up card provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. CONSIDERATION of Approval of Document No. 2007-263, Release of a Previously Recorded Development Agreement, SP-88-36 - William Groves, Community Development Department 3. A HEARING (continued from May 15) and Consideration of Signature of Order No. 2007-109, a Measure 37 Claim (Claimant: Cyrus) - Tom Anderson, Community Development; Mark Pilliod, Legal Counsel - PLEASE NOTE. This will likely be continued at the request of the applicant. No new date has been set at this writing. 4. A HEARING (continued from May 15) and Consideration of Signature of Order No. 2007-125, a Measure 37 Claim (Claimant: Central Electric Cooperative) - Tom Anderson, Community Development; Mark Pilliod, Legal Counsel 5. ADDITIONS TO THE AGENDA Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 1 of 7 Pages 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, June 18, 2007 10:00 a.m. Measure 37 Hearings 12:00 noon Regular Meeting with Department Heads 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, June 19, 2007 7:30 a.m. Legislative Update Conference Call 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, June 20, 2007 10:00 a.m. Board Business Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, June 21, 2007 7:00 a.m. Meeting with Bend Chamber of Commerce - Legislative Policy Council 9:00 a.m. Parole & Probation Department Update 10:00 a.m. Juvenile Community Justice Department Update 1:00 P.M. Pre-season Wildfire Meeting, Fair & Expo Center Monday, June 25, 2007 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 2 of 7 Pages Wednesday, June 27, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, June 28, 2007 9:00 a.m. Fair & Expo Department Update 11:00 a.m. Commission on Children & Families' Department Update Monday, July 2, 2007 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Tuesday, July 3, 2007 7:30 a.m. Legislative Update Conference Call Wednesda ,JJuly 4, 2007 Most County offices will be closed to observe Independence Day. Thursday, July 5, 2007 8:00 a.m. Regular Meeting with the Sisters City Council, Sisters City Hall Wednesday, July 11, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July 12, 2007 12:00 noon Regular Meeting of the Audit Committee Tuesday 17, 2007 7:30 a.m. (tentative) Legislative Update Conference Call 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 3 of 7 Pages Thursday, July 19, 2007 7:00 a.m. Meeting with Bend Chamber of Commerce Representative(s) regarding Legislative Policy Monday, July 23, 2007 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, July 25, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July 26, 2007 7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers 1:30 p.m. Sheriff's Department Update, at Sheriffs Office Monday, July 30, 2007 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 1, 2007 Opening Day at the Fair Monday, August 6, 2007 10:00 a.m. Board Land Use Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, August 8, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 4 of 7 Pages Wednesday gust 15, 2007 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 20, 2007 10:00 a.m. Board of Commissioners' Meeting - Land Use 12:00 noon Regular Meeting with Department Heads 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, August 21 2007 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday. August 22 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 27, 2007 10:00 a.m. Board of Commissioners' Meeting - Land Use 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday. August 29, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, September 3 2007 Most County offices will be closed to observe Labor Day. Wednesday, September 5 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 5 of 7 Pages Thursday, September 6, 2007 10:00 a.m. District Attorney Update 11:00 a.m. Community Development Department Update 1:30 p.m. Road Department Update Wednesday. September 12, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, September 13, 2007 7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers 10:00 a.m. Health Department Update 11:00 a.m. Mental Health Department Update Monday, September 17, 2007 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, September 18, 2007 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, September 19, 2007 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, September 20, 2007 7:00 a.m. Meeting with Bend Chamber of Commerce - Legislative Policy Council 10:00 a.m. Juvenile Community Justice Department Update 11:00 a.m. Parole & Probation Department Update 12:00 noon Regular Meeting of the Audit Committee Monday, September 24, 2007 10:00 a.m. Board of Commissioners' Meeting - Land Use 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 6 of 7 Pages Wednesday, September 26, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, September 27, 2007 9:00 a.m. Fair & Expo Department Update 11:00 a.m. Commission on Children & Families' Department Update 1:30 p.m. Sheriff's Department Update, at Sheriffs Office 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. (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) Board of Commissioners' Business Meeting Agenda Monday, June 18, 2007 Page 7 of 7 Pages TRIAL TRANSCRIPT Cyrus O. Keith et al. v. Central Electric Co-op Case No. 05CV0563SF Motion for Sanctions Against CEC and Motion to Continue Trial Hearing Date: May 22, 2007 In relevant part: Judge I'm going to make maybe one ruling today. It will come as no surprise that ultimate determination of what to do here will have to await further review and perhaps further submissions from the parties. So, I'm just going to start by saying yes there's been a discovery violation, I think that's evident, and it will be hard to argue otherwise. But, there are a number of issues for the Court to consider in determining what the sanction should be. It is common for the Court to impose attorney fees but, there are a variety of things that a judge should consider in deciding what to do. First, is what is the nature of the violation; what was produced; how much was not produced; is there anything which was requested which has still not been produced; how much of a delay has there been; and what is the reason for the delay. Second, the Court looks to the mental or comparable mental state of the party who fails to comply with the civil litigation production rules. Was the violation intent or willful, or intentional; was it reckless; was it negligent; was it accidental; was there a motive or purpose to avoid or evade or to confuse or to obstruct. And then the Court does look to prejudice, generally in a sense there is always prejudice in terms of delay, in terms of cost and in terms of system integrity. The Court is also interested more specifically in the effect on the rulings that may have been made in the case to date and in the effect on the eventual outcome of the litigation. There is no case Pamplin or not which tells the Court what it must do or should do, the cases only tell the Court what it may or may not do. And it has, has been said it is generally in the sound discretion of the trial court to determine what an appropriate sanction is within the limits and direction imposed by the rules of civil procedure in the court cases, the appellate cases interpreting those rules. All right, I will say that the Court is disturbed, there has been an obvious and significant serious failure to provide discovery just looking at Exhibit 1. If I can conclude that that's accurate and I'll take it to be accurate for now. We went from June 21, 2006 (went to that date apparently), 46 pages of documents had been produced and CEC provided a statement (again I'm reading from Exhibit 1) that said, "this completes production of all the discovery in your latest request and that included the second request for production." We went from 46 pages in June of 2006 to currently 1,574 pages although some of those may be duplicate e-mails with or without attachments and apparently not counting whatever was in the box that Mr. Hickman was invited to review, and did at least partially review at Mr. Hansen's office. This is not a mistake, were made sort of situation this is, at best (as far as the Court can determine) a dismal failure to seriously search its own records and respond to legitimate discovery requests in a vigorously contested litigation. I will say that the Court does not want to find 1 - Excerpt of Trial Transcript PDX/ 112188/ 152380/) W/ 1554988.1 C willful disobedience of its orders. Certainly, the standard in a content case for finding of willful disobedience is clear and convincing evidence. The Court does not want to believe that a party is intentionally confiscating or misleading in a way which affects the administration of justice and frankly which deprives the Court itself of necessary relevant evidence to make sound and just rulings and it has generally been my policy to listen carefully to the reasons given for [inaudible] to disclose and be reluctant to find that it was intentionally done to alter the fair administration of justice. As I've said, these were not just mistake were made circumstances and as the Court of Appeals had said a Court can find a purposeful or willful failure to disclose or something it can (I don't remember the exact language) and I could say without looking (doing any research) that there were a number of places in the law where, for instance regarding punitive damages or certain kinds of causes of action where a party can prove intentional misconduct or conduct that is so reckless or outrageous that it amounts to the same thing. There are at least several categories or failure to disclose that the Court needs to consider. First, the Court needs to consider the documents which have, in fact, been disclosed untimely and the reasons advanced for the very, very significant delay in disclosure, are those reasons credible, what level credibility attaches to the excuses given and in this regard there are two sub-catalogues of disclosed evidence, one is electronic. Certainly, there is evidence in the record regarding sanctions that in 2005 CEC was aware of the existence of electronic records dating to 2001 and 2002 but, yet that information was not apparently located but not certainly disclosed until many months after the request for production. The other category of documents are the paper documents which were untimely disclosed. I don't know whether they were paper documents other than the documents, as I said [inaudible] probably in the record whether they were paper documents other than the documents in the box but, I'll focus on the documents in the box which counsel for Plaintiffs were invited to come and review if they wished by correspondence from Mr. Hansen's office I think the date was May 1St. And that's a particular concern in view of a variety of things beyond the fact that those documents were clearly discoverable and requested a long time ago in view of the fact that there was a discussion in this courtroom (which I also remember) about the, what you, sorts of documents you would expect to have regarding a minor, relatively minor, construction project such as a house when compared to the sort of documents that you'd expect to find for a major construction project such as this transmission line. In view of the apparent importance of some of the documents in the box which have already been referred to in this sanctions hearing, and in view of the fact that as the Court remembers and again I will look while there has been, there have been explanations advanced for the failure to produce other things there has been no explanation advance for the failure to produce that box of records before May 1St. The second category of documents are the, I'll just call them the Rose documents and those are always problematic when they're not produced and the response is they don't exist or we don't have them. So, again I'd have to say the 2 - Excerpt of Trial Transcript PDX/ 112188/ 152380/) W/ 1554988.1 4 C record is clear from the documents which were produced and submitted to the Court (I think attached to Mr. Hickman's second supplemental declaration) that Rose doesn't have them or any significant amount of them and that, in fact, the files or at least one set of files, working files, I think was the language, it's not important right now, were delivered to and received by CEC it's also clear that those documents have a tendency or those files have a tendency to be highly relevant and we know they have not been produced and so there are, I think, as Mr. Peterkin eluded to a variety of possibilities. Were those documents lost by CEC? Were they misplaced by CEC, but CEC still has them? Were they destroyed by CEC either because CEC felt it was no longer necessary to retain them or for some more sinister reason or does CEC have the documents now and has simply refused to disclose them? Again, it's always difficult for a Court to find that when the representations are made that the documents don't exist or they have been lost or cannot be found that that is not true. I guess there is an additional question which is, if lost and it's later destroyed did that occur before the litigation commenced and the December 2005 request for production was made? I don't know the answer now or I don't know what I'll conclude. I'll review the written record with regard to this sanctions issue and look at all of the things I've indicated that a Court should consider important in determining the appropriate sanction. I think the Court should be mindful of a variety of the policy factors; one of which is that litigants should have their day in court and cases should be decided on the merits. The other of which are the public policy factors which have been discussed in cases which are particularly focused on discovery issues or failure to provide discovery such as Pamplin. Striking in an answer or striking defense is a fairly significant remedy and I think I'm going to invite more information from counsel before I decide on the remedy. It must be clear to everybody here by now that there will be some remedy and there will be some sanction. Mr. Hickman did you get entirely through the box of papers? Hickman Yes, I did your Honor and I'm in the process of reviewing the documents I flagged for copying and that was received yesterday. Judge All right, I would be interested in knowing more and I'll solicit within 10 days if you that time frame works a subsequent memorandum about what's in the box, and how it might have been useful to have that information in a timely way to provide to the Court evidence on issues which the Court has already considered and determined either by way of primary evidence on your behalf, or behalf of the Plaintiffs. Or, to rebut contentions or allegations made by CEC and then, so that's a compound issue which evidence was, is in the box which might have affected the outcome of something the Court has already decided and specifically why. And if you can have reference to affidavits or declarations that have been made in the past or to arguments that were made on the record that would be useful. Hickman That can be done. 3 - Excerpt of Trial Transcript PDX/ 112188/ 152380// W/ 1554988.1 C, Judge And then we'll give CEC 10 days to respond to the Plaintiff's memorandum. I don't think I will say, I don't think it's going to be very helpful now to provide additional declarations or affidavits regarding why discovery has not been made to date. Because those additional declarations or affidavits would appear to the Ccourt to simply be self-serving responses to the Court's concern expressed on the record today and my belief is knowing that thoroughness of counsel for CEC that if there was an explanation or an excuse or a reason that it would have been produced before this morning to the Court. All right, so the only, I mean the remaining big issue is what's the sanction going to be and be based upon all the things I've talked about here today but I do want some further specific information about the, as I've said about the impact that, the impact on previous court decisions or potential impact of the previous court rulings or decisions if disclosure of the documents which have been now disclosed had been timely. I'm going to diary the file for 20 days, we'll look for your submissions then and then I'll make a decision. Hickman Thank you. Hansen Your Honor if I could, I appreciate the Court's comments, all of them, on the issue of affidavits I think that we probably didn't give you a record today because your comment about 46 pages in June and then 1,500 in May I'd like to be able to tell you how many thousands of documents were produced in the meantime. Because that's not, I don't think counsel argued that I haven't read his exhibit that carefully. I wouldn't want the Court to think there was no more records in between times because there's lots of discovery ongoing. Judge You can do that. Hansen Thank you, your Honor. Judge All right, thank you. Hickman Thank you, your Honor. Judge We'll be in recess. 4 - Excerpt of Trial Transcript PDX/ 112188/ 152380/J W/ 1554988.1 Paul I Lipscomb June 13, 2007 Deschutes County Board of Commissioners Deschutes County Counsel c/o Mark Pilliod 1300 NW Wall Street, Ste 200 Bend, OR 97701 Re: M37-06-162: The Cyrus family's Measure 37 Claims dated 12/1/2006 Dear Commissioners: claim: As an adjacent property owner, I have several concerns about this Measure 37 1) As recently as May 24, 2007 the Oregon Supreme Court has recognized and reaffirmed Oregon's long legislative history of promoting the preservation of farmland through land use regulations, a history that goes back to at least 1973 with the passage of Senate Bill 100. See Wetherell v. Douglas County, May 24, 2007, slip opinion at page 6: "The legislature's policy regarding agricultural land was set out almost 35 years ago and seeks to preserve `a maximum amount of the limited supply of agricultural land' in the state. ORS 215.243." More specifically, as of 1973, the applicable legislative mandate specified, in part, that: "The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation." (ORS 215.243.) Since 1973, all county government land use decisions were required to be in compliance with this state policy, and all land use actions had to be consistent with both its intent and purposes. See ORS 215.213(3) (1973). Petersen v. Klamath Falls, 279 Or 249, 253-54 566 P2nd 1193 (1977). See also ORS 197.175(1). The destination resort proposed in this case would clearly not have been consistent with this state policy in 1973 as required by ORS 215.213, most significantly because these parcels were actively being commercially farmed, then as they are now. See also Rutherford v. Armstrong, 31 Or. App 1319, 572 P2d 1331 (1977). 2) ORS 215.213 was first effective in 1963, and as amended in 1969, it provided that construction and use of dwellings in farm use zones must be only those that were "customarily provided in conjunction with farm use." This statute predates claimants' acquisition of most parcels encompassed in this claim, and that statute would not have allowed any of the development proposed by the claimants now as a matter of right. Not until 1973 were any kind of non-farm dwellings ever permitted by statute in farm use zones, and from the very beginning non-farm dwellings, when permitted at all, were carefully restricted and closely regulated, much as they are today. See, e.g., ORS 215.213 (1973), and ORS 215.515 (1973). Further, under state laws applicable at all times subsequent to 1973, divisions of property to allow non farm uses, even when otherwise allowed, could only occur by partition, and not by subdivision. See, e.g., ORS 215.263 (1973). See also ORS 92.010 (1), (5), (7), and (10) (1973) and ORS 215.010. 3) Destinations resorts were never permitted as a matter of right in Deschutes County at any time in any place. Since destination resorts were never permitted as a matter of right, claimants cannot now justify a Measure 37 claim for compensation for a loss in value for the restriction of a right they never had. 4) No other "use," residential or otherwise, has been requested in this claim for Measure 37 relief. Measure 37, by its very terms, requires that the claimant identify each of the specific land use regulations "that restricts the use of private property or any interest therein and has the effect of reducing the fair market value of the property Unless and until claimant identifies the specific land use regulations restricting a "use permitted at the time the owner acquired the property," there is no authority under Measure 37 to waive any valid county ordinances. The blanket waiver of unspecified land use regulations as proposed by the draft staff report in this case is simply not authorized by the law. 5) It would be particularly inappropriate, as well as legally impermissible, to waive unspecified land use regulations to allow claimants to pursue a development that they have not sought in their current claim. This is especially true in a case, such as this one, where such a development proposal had been previously sought in an earlier Measure 37 claim; a claim that went up on appeal to the Circuit Court, and after being rejected there, has now been dismissed and formally abandoned by claimants in favor of their present claim. 6) By its own terms, Measure 37 only allows the waiver of land use regulations to allow the owner to use the property for a "use" that was permitted at the time the owner acquired the property. A "use" of land is the employment of land for a particular purpose; i.e., residential, commercial, agricultural, mining, etc. The platting of undeveloped land is not a "use" of the land under applicable Oregon law. See Parks v. Tillamook Co., 11 Or App 177 (19720. And partitioning and subdividing property is merely a "division" of land; it is not a "use" of land. 7) Claimants have not demonstrated any actual loss of market value in this case as a result of any Deschutes County land use regulations because they have not shown that any use of the property which they now seek would have been permitted by state law at the time they acquired ownership of any of the parcels subject to this claim. If they could not have done then, that which they seek to do now, then they cannot demonstrate any loss of market value. Without a loss of market value, they have no valid claim for compensation. And until claimants document a valid claim for compensation, the governing body cannot waive any land use regulations under the terms of Measure 37. For all of these reasons, the current Measure 37 claim has not been legally established, and, therefore, the relief requested cannot legally be granted. Measure 37 does not permit the governing body of Deschutes County to waive any land use regulations unless and until the claimant fully complies with the legal requirements of Measure 37. Claimants have not complied with Measure 37's legal requirements, and, therefore, the Board must continue to enforce all of its own regulations without exception. Sincerely, Paul J. Lipscomb