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2007-1231-Minutes for Meeting July 14,1982 Recorded 6/21/2007COUNTY 1 NANCYUBLANKENSHIP,FCOUNTY CLERKDS vd 2007.1231 COMMISSIONERS' JOURNAL 11111111111111111111111111 06I21I2007 08;55;47 AM I I III 2007-1231 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 JULY 14, 1982 - REGULAR MEETING Chairman Shepard called the meeting to order at 10:02 A.M. Commissioner Paulson and Commissioner Young were also present. Hearing on Rick Isham, County Counsel, said that this would be Respondent's continued until 1:30 P.M. There was some further dis- Cost Claim cussion on the hearing procedure to take place at that time. Discussion re- John Andersen,'Planning Director, said that they had garding Pay--. :obtained a grant through Central Oregon Intergovernmental ment for La- Council to finish the LaPine Industrial Park Plan, but Pine Indus- stated that there was no money available through the trial Park Economic Development Administration to fund the survey Survey of the land. The survey is necessary so that they can divide it into parcels to be leased. He said that in this year's Planning Department budget, they had a line item for a Senior Planner who was not yet on board. He suggested that they not fund this position for a short amount of time which would provide the $1500 necessary to fund the survey. MOTION: YOUNG moved to proceed with the use of the $1500 of the Senior Planner funds that will not be used to make a survey of the LaPine Industrial area. PAULSON: Second. There was some further discussion on the LaPine Indus- trial study group that the Board had appointed for the purpose of developing this plan, and what their wishes for the further proceedings of this project are. It was the concensus of the Board that they did not wish to proceed with this without the support of that committee and the support of the LaPine Industrial Corporation. Mr. Andersen also explained the breakdown of the funding for the plan and the survey. VOTE: SHEPARD: AYE. PAULSON: AYE. YOUNG: AYE. MOTION: PAULSON moved that the Board direct John Andersen to communicate with the committee and and the development corporation to see if this meets with their approval and find out if they would like to be involved. YOUNG: Second. There was some further discussion. VOTE: SHEPARD: AYE. PAULSON: AYE. YOUNG: AYE. Discussion This was in regard to establishing who will be respon- regarding sible for issuing burning in areas outside of rural Fire Permits fire protection districts. It was suggested that the fire protection districts be contacted to see they would be willing to assume this function for areas within or near their districts. Commissioner Young agreed to research this further by contacting the fire districts and report back to the Board at a later time. Page 1 of 8 Deschutes County Board of Commissioners July 14, 1982 - Regular Meeting Amendment to the Agenda: OLCC Liquor License Renewal Application Being no objections, the agenda was amended to include this item. Before the Board was an OLCC Liqour License renewal application for G.I. Joe's. MOTION: PAULSON moved that it be approved. VOTE: YOUNG: Second. SHEPARD: AYE. PAULSON: AYE. YOUNG: AYE. Discussion Chairman Shepard explained that Larry Huettl had been Regarding asked to review the cars that had been the subject of Vehicle previous car committee discussions to determine whether Policy they should be kept or disposed of. He had done so and outlined his determinations in a memo before the Board. MOTION: PAULSON moved to approve his recommendations and implement them noting that it should include the understanding that the department heads will be kept advised of what is to be done with the vehicles. YOUNG: Second. VOTE: SHEPARD: AYE. PAULSON: AYE. YOUNG: AYE. It was.the concensus of the Board that Chairman Shepard be appointed to follow through on this project. Other Staff/ Mr. Isham noted that the County used to hold an annual Public Con- County Auction, of which Chris Williams, Search and cerns Rescue, used to coordinate. It was the concensus of the Board that Terry Silbaugh, Mr. William's sucessor, be asked to assume that responsibility. Mr. Isham also noted that 'at 1:30 he would have resolutions relating to the budget ready for signature by the Board, and requested that they do so at that time. Being no further business at hand, the meeting was recessed until 1:30 p.m. Page 2 of 8 BOARD OF COUNTY COMMISSIONERS MEETING OF JULY 13 & 14, 1982 1:30 P.M. RECONVENED FOR THE FOLLOWING: Resolution A resolution amending Section 1 of Resolution 482-035 82-039 Adopting the Deschutes County Budget For Fiscal Year 1982-83, Nunc Pro Tunc. Chairman Shepard read the title of the Resolution; MOTION: PAULSON moved that they adopt the resolution 482-039. YOUNG: Second VOTE: PAULSON: AYE YOUNG: AYE SHEPARD: AYE Resolution A resolution amending Section.3 of Resolution 82-035; adding 82-040 appropriations for Road Improvement Funds and Correcting Ap propriations in the Water Hemlock Fund and the County Fair Fund, Nunc Pro Tunc, read by Chairman Shepard. MOTION: PAULSON moved that they adopt the resolution.#82-040 YOUNG:. Second VOTE: PAULSON: AYE YOUNG: AYE SHEPARD: AYE The Board then proceeded with the hearing reagarding costs and a decision on the Way of Necessity for Thompson. Due to the lengthiness of this meeting, there will be separate minutes prepared. Page 3 of 8 Deschutes County Board of Commissioners July 14, 1982 - Regular Meeting Hearing on Chairman Shepard began the hearing by discussing-. Respondent's the proceeding of the hearing. There was a question Cost Claim of whether Dave Hoerning, County Surveyor, would be allowed to testify on behalf of the Thompson's. Mr. Speck voiced an objection to this, based on the fact that Mr. Hoerning was not at the first hearing where testimony of this nature was heard. He objected to reopening the hearing to further testimony. The Chair ruled to disallow the opening of the hearing to any further testimony. Chairman Shepard addresed the first question relating to the Board's decision, that being "Has the need for the Way of Necessity been demonstrated." Chairman Shepard and Commissioner Paulson agreed that it had been demonstrated. [Note: Commissioner Young was not able to attend the original hearing:] Commissioner Paulson said that he was in favor. of granting a way of necessity, but not on the route that was pro- posed. Route A as identified on the map was what was requested by the Thompson's, Commissioner Paulson suggested that the Board determine that Route B be granted for way of necessity. There was some further discussion relating to the alternate routes. MOTION: PAULSON moved that the Board grant the Way of Necessity since there is no other access to the property, that the location of the Way of Necessity be along Route B as described on the colored map that was presented to the Board titled Tumalo Dam Quadrangle and that the width of the access be thirty feet, with the access limited to residential uses of the pet- itioner's property. SHEPARD: Second. VOTE: SHEPARD: AYE. PAULSON: AYE. YOUNG: ABSTAIN. Neil Bryant, attorney representing the Thompson's, asked if they should come back before the Board should that route prove to be impossible to engineer, and the need for additional ground required. In that event, it was decided that the petitioner would have to requested that the hearing be reopened and the order amended. It was also advised that this could be appealed to Circuit Court. There was some further discussion on this and the proced- ure was never clarified. It was noted that there was no evidence given at the hearing that any of these routes were not suitable to use. Page 4 of 8 Deschutes County Board of Commissioners July 14, 1982 - Regular Meeting Paul Speck, attorney representing the Stringfield's (the respondents), asked about the fencing of the right-of-way, the provision of a gate to be kept locked and the question of maintenance to the BLM road. This lead to further discussion in regard to the point at which the Thompson's access begins. There was some question as to whether or not the Thompson's would enter the Stringfield property at the same gateway the String- fields use. It was the Stringfield's desire that they enter at another point and keep a separate locked gate for security purposes of the Stringfield house. It was agreed to address these questions after the cost hearing, as there were witnesses waiting to testify in regard to that matter. Before the Board was a letter to the Board from Mr. Speck outlining his client's costs, and a letter of response from Mr. Bryant. It was determined that Mr. Bryant would present his case first. Mr. Bryant called forward Terry O'Sullivan to testify. Terry O'Sullivan, 424 N.E. Kearney, Bend 97701, Attorney in the firm of Merrill and O'Sullivan, came forward. Mr. Bryant proceeded to question Mr. O'Sullivan on his practice and asked him whether or not he had reviewed the evidence in this particular case, to which he answered in the affirmative. He asked for his opinion as to what a reasonable attorney's fee might be in this case. He said that he felt that a reasonable fee might be $1000 to $1200, for the attorney portion only. Mr. Speck noted that because his client was out of town he had to do some of the footwork that the client may have ordinarily done. There was some further discussion in this regard. Next, John William Bancroft, Jr., Real Estate Appraiser, came forward. He listed his credentials after being requested to-=do so by Mr. Bryant. He had reviewed Mr. LaFranci's report and the different maps submitted during the hearing . He said that his opinion for costs on this should be $750 to $1000. Steven C. Scott, 672 Innes Lane, Bend, 97701, came forward. He is a real estate broker and consultant. He listed his credentials at the request of Mr. Bryant. Mr. Bryant asked for his opinion in regard to the fee that should be charged for the appraisal work erformed by Mr. LaFranci. He said that based on charging p$40 per hour, estimating that the report took 20 hours to complete, making the fee approx- imately $800. There was some further discussion on how he had assessed this cost. Mr. Bryant then called forward Dave Hoerning, County Engineer, who had prepared the engineer's report. Mr. Speck objected. It was the Board's decision not to hear Mr. Hoerning's testimony. Page 5 of 8 Deschutes County Board of Commissioners July 14, 1982 - Regular Meeting Mr. Bryant said that he would like to make known for the record that his attorney's fees were $772, billed to the Thompsons_at a billing rate of $75 per hour, which was the same rate as Mr. Speck charged. At,this point Commissioner Paulson has been involved in some business Bryant but did not think that this decision in this matter. After a discuss this with his clients, Mr. willing to proceed. indicated that he dealings with Mr. would affect his grief recess to Speck state that he was At this point Mr. Speck began his testimony. He noted that they had put on the-strongest case possible, in light of the fact that they are the party being affected by the proposed action. He noted that relatively speaking, they had presented a far more complete case than the petitioner, which of course would reflect a larger attorney's fee. He stated that Richard Forcum, another local attorney, had reviewed his billing and had not found it to be unreasonable. He further discussed different points relating to fees and costs. He noted that the Stringfield's had obtained local counsel rather than their Portland attorney to save costs, but there was time spent between the two attorneys in order to bring Mr. Speck up to date. He said that with regard to the engineering, they felt that the County engineer report was totally inadequate, so they retained Century West Engineering to do a more complete report and they charged at their standard rate. He said that with regard to Mr. LaFranci's fees, he charged a flat rate and actually spent more time making the appraisal than what he charged. He had a letter from R.. J'. Frank indicating the total appraisal fees and listing what is involved in preparing these reports. Mr. Speck read this letter aloud. He said that in a similar condemnation case involving the City of Troutdale, it was found that not only did the city have to pay for the land, but the hearing costs as well. Mr. Bryant stated that under the statute, they are not allowed to recover the appraisers fees or the fees of experts because the statute does not provide for it. He discussed this point further. The intent of the legis- lature on this point was further argued. Mr. Isham noted that it was not his feeling that expert witnesses would not be allowed under the statute under "costs". This was discussed and debated at length. Chairman Shepard stated that "it was his feeling that the costs outlined in Mr. Speck's letter should be acknowledged as the res- pondent's costs. Commissioner Paulson said that it was his feeling that the Board could award reasonable attorney's fees but that the additional expenses could not be considered costs.; they were not to award them for expenses. Page 6 of 8 'Deschutes County Board of Commissioners July 14, 1982 - Regular Meeting MOTION: PAULSON moved that the items included in the June 10, 1982 letter to the Board from Mr. Speck listed under appraisers fees, surveyors fees and miscellaneous fees not be considered for reimbursement. YOUNG: Second. VOTE: SHEPARD: NO. PAULSON: AYE. YOUNG: AYE. There was further discussion and debate in regard to attorney's fees. MOTION: PAULSON moved "that in"light of the testimony that we have received and considering that the Stringfield's required, or didn't require, but chose two different attorneys, and that the purpose for choosing two attorneys was to keep the costs at a minimum, considering that they are from out of the area, that we award them $1800--attorney's fees to cover the out of the area attorney and the local attorney. Previous testimony indicated a reasonable fee for an attorney might be up to $1200, however I think that was in the realm of a local attorney for a local dispute and that is not entirely correct in this instance." YOUNG: Second. Chairman Shepard said that he felt that this was an insufficient amount of money and that he was opposed to the motion. There was further discussion. VOTE: SHEPARD: NO. PAULSON: AYE. YOUNG: AYE. MOTION: SHEPARD moved that the Board award $700 for taking and $1500 for damage to the remaining property. PAULSON: Second. VOTE: SHEPARD: AYE. PAULSON: AYE. YOUNG: ABSTAIN. There was some further discussion in regard to fencing, a locked pate and road maintenance. Mr. Stringfield explained that it is their desire that the Thompson's maintain a separate gate from theirs. MOTION: PAULSON moved "that the Thompsons be re- quired to access the property off the BLM right-of-way and to the east of the String- field's gate and that they, the Thompsons, install a fence on the west and south portion of their right-of-way, and that the fence be installed Fage 7 of 8 Deschutes County Board of Commissioners July 14, 1982 - Regular Meeting prior to consttuction of the,home on the Thompsons' property ...[discussion].... and prior to using the right-of-way. SHEPARD: Second. VOTE: SHEPARD: AYE. PAULSON: AYE. YOUNG: ABSTAIN. The Board instructed counsel to draw an order based on the Board's decision. Mr. Speck asked the Board to address 'the issue of road maintenance, in order that the road will not cause any erosion or damage to the remaining property. ORS-376.190 addresses this, noting that the person is not responsible for maintenance of the way of necessity if not specifically stated in the order. MOTION': PAULSON moved that the road be constructed and maintained by the Thompsons in such a fashion that it does not damage the String- field property that joins it. SHEPARD: Second. There was some further discussion. VOTE: SHEPARD: AYE. PAULSON: NO. YOUNG: ABSTAIN. The motion died. Being no further business, the meeting was adjourned. DES y cjr:Jpep OF,COMMISSIONERS ert L'. YauTson, Jr.", commission v e / Alb rt A. Young, C I-* SS /ss Page 8 of 8