2008-13-Minutes for Meeting December 03,2007 Recorded 1/7/2008DESCHUTES COUNTY OFFICIAL RECORDS 10~8~13
NANCY BLANKENSHIP, COUNTY CLERK J
COMMISSIONERS' JOURNAL
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2008-13
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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, DECEMBER 3, 2007
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Michael M. Daly, Dennis R. Luke and Tammy Baney.
Also present were Tom Anderson, George Read and Chris Bedsaul, Community
Development; Mark Pilliod and Laurie Craghead, Legal Counsel; and eight other
citizens. No representatives of the media were in attendance.
Chair Daly opened the meeting at 10: 00 a. m.
1. Before the Board was Citizen Input.
The Board acknowledged the passing of Kimble -
No other input was offered.
2. Before the Board was a Hearing and Consideration of Signature of Order
No. 2007-073, a Measure 37 Claim (Pine Meadow Ranch - Sokol).
Chair Daly opened the public hearing.
Mark Pilliod stated that the claimant has asked for another continuance. Ed
Fitch said that because of Measure 4% this needs to be delayed. It makes sense
to find out where the State will come in on this issue and it may take
considerable time.
Mr. Pilliod stated that Paul Dewey had submitted a letter for the rerecord but
because of the delay would like the letter taken out of the record at this time.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 1 of 13 Pages
LUKE: Move that this be conditioned to a date uncertain, depending on the
request of a hearing date from the applicant.
BANEY: Second.
VOTE: LUKE: Yes.
BANEY: Yes.
DALY: Chair votes yes.
3. Before the Board was a Hearing on Remand regarding a Claim for
Compensation under Measure 37 (File #M37-05-7; Claimant: Leason -
Pine Ridge Ranch).
Mr. Pilliod said that this matter had been scheduled for October 22; the Board
received comments about the material that was submitted and whether it was
appropriate to proceed at that time. The Board decided to allow both parties to
make their positions relative to the remand clear. Their written material has
been received and is part of the record. Staff has reviewed the material,
principally the material regulating to October 19 claimants and November 5
from the opponents. Staff comments were placed in a series of reports; one
went from Peter Russell to Paul Blikstad, a memorandum from Todd Cleveland
to Paul Blikstad, and a memorandum from Paul Blikstad to Tom Anderson.
These memoranda are now part of the record and the parties may want to
address them.
A proposed Order and staff report have been prepared. The Board found that
there is an interest in property held by Mr. Leason as well as Pine Ridge Ranch;
this was appealed to Circuit Court. The Court affirmed that portion of the
Board's decision; however, that affirmation has been appealed to the Court of
Appeals. Staff has made available the standard opening statement for Measure
37 so the Chair does not have to read the statement.
Mr. Fitch stated that Gertrude Leason, one of the original applicants, has died.
The Circuit Court affirmed the acquisition date. The question is now feasibility
as to whether it can be developed further than under current regulations. One
confusing point is the acquisition date was established as 1971, this was before
zoning laws but after PL-2. Some had no minimum lot size and others did. The
Hearings Officer found that PL-2 did allow five-acre homesites.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 2 of 13 Pages
This is not before the Board but shows that it can be developed greater than an
80-acre minimum lot size. There are sufficient soils for a sewer system, potable
water is feasible; there is a county paved road adjacent; and so on. The basic
elements show that the property is basically feasible for development, either a
standard development or a planned unit development. The specific land use
application would come later.
Mr. Fitch said that Ed Sullivan submitted a letter today that the Board has
reviewed. Mr. Fitch stated that in regard to Measure 49, the key issue is a lot of
litigation is ongoing with the State. The State was sued for denying the
application in its entirety under Measure 37. Judge Tiktin found for the
applicant. With Measure 49, it is uncertain at this point. The waiver from the
County is important as it is needed to show damage has been done. They don't
want to add the County into the litigation but would have to if the waiver was
not allowed.
Mr. Fitch added that someone feels efforts are being made to file a land use
application. They cannot do so without a State waiver. The next issue raised
by the opponents was feasibility; there is ample evidence to show that
somewhere between five and ninety-five lots would be possible, subject to the
land use process. The last question is there cannot be double relief. If the State
allows a money judgment, that is the end of it.
He stated that he feels the Board does have jurisdiction to make this decision.
The ownership issue has been resolved and affirmed by Judge Tiktin. Whatever
was in effect in 1971 would be effective, but Measure 49 has clouded the
situation, so it will likely end in a money judgment or a Measure 49 claim.
He agrees with the Order and staff report as written.
Ed Sullivan and Robert Berstein, representing Bruce Bowen and Eva Eagle,
came before the Board. Mr. Sullivan asked why everyone is here since nothing
can be done at this point and may never happen.
The Board decision was made and appealed; part was affirmed and part was
remanded, but both are being handled in Court. The State denied the claim;
Judge Tiktin determined the denial was incorrect and left of the amount of
judgment. Mr. Sullivan said the Board can't decide on something that is also in
appeal. If the Board moves ahead, there could be court involvement on a third
aspect.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 3 of 13 Pages
Mr. Sullivan said that is unlikely the property owner can vest by Thursday
under Measure 49. Because of the ownership dispute, that raises the question of
the percentage of relief. The State has refused the waiver, which means the
Board should not go ahead. The State is liable for the whole amount.
In regard to feasibility, Mr. Bernstein is a professional transportation
engineering consultant and can testify in that regard. There is also testimony on
water.
Mr. Bernstein gave his qualifications and talked about his familiarity of the
area. He concluded that the proposed development does not have adequate
emergency access and it cannot be provided. Therefore, the development is not
feasible.
Commissioner Luke asked what is being decided today. On Measure 37 claims,
acquisition dates are being decided. This is not an application for a land use.
Mr. Pilliod agreed, there is no development pending. However, the direction of
the Circuit Judge was to accept testimony on whether the property has been
devalued because of regulations. Therefore, it is somewhat relevant.
Mr. Bernstein spoke about emergency access. Two types would be needed in
this instance; one for emergency vehicles and one for evacuation, whether
precautionary or enforced. Multiple access points and redundancy are
necessary.
Commissioner Daly asked if a plan or proposed subdivision plat has been made
available. Mr. Bernstein stated that he is looking at the property in regard to its
relation to existing roads, and how well the area itself can handle an emergency.
There could be adequate access provided from the site, but there is not adequate
access out of the area. There are two roads, Edmonson Road and Goodrich
Road. It is possible that both access points could be blocked.
No other testimony was offered.
Commissioner Daly asked if a plat map has been made available. Mr. Bernstein
said he has seen several examples n the record.
Mr. Pilliod said that the October 19 information submitted to the
Commissioners included a series of tabbed sections; tab 3 and tab 4 give
conceptual plot plans.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 4 of 13 Pages
Commissioner Luke said that a map of the area shows man roads on two sides.
Mr. Bernstein said that still may not allow enough roads to get people out of the
area.
Commissioner Baney said she has heard various numbers regarding the number
of sites. Mr. Pilliod replied that a figure of around 95 units has been submitted.
Originally it was about one unit per acre, meaning 475 units, but that was in
2005 and has been scaled down. The question for the Board is whether it is
materially more than current zoning allows.
Mr. Bernstein said that all locations should have multiple escape routes and at
some point it is not possible. The exact number chosen as an upper limit is
based on the risk determined by the Board.
Mr. Sullivan stated that he got the three reports last week. ORS 197.763 does
apply in this regard. He does have a right for a seven-day continuance. He
would like to have Mr. Berstein have time to do a written report.
He added that residences would have to be in conjunction with intensive
agriculture and a gold course would not be allowed. A five-acre site would not
work. It is not vested by the State and will not be, and it will have to be
handled under Measure 49. All Measure 37 claims not vested will either be
granted or denied; this is not yet vested.
Commissioner Luke asked if 100% relief is being sought. Mr. Sullivan replied
that the most recent acquisition would likely be the one considered.
Commissioner Luke said that when this was in Circuit Court, the Board waited.
It is in the Court of Appeals now. This Order assumes an acquisition date that
is on appeal.
Mr. Sullivan stated that the appeal will never be decided, and will eventually be
held moot. It would be recalculated under Measure 49.
Commissioner Luke asked staff if the County is liable if it waits for the Court of
Appeals action. Mr. Pilliod speculated that if the County is brought into the
case involving the State, it is up to the Court as to whether this can be done. It
is not up to the applicant. Part of the reason this was brought to the Board's
attention at this time is that if it was just to satisfy the purpose of the remand, it
could be finalized.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 5 of 13 Pages
It may not matter after Wednesday. There is probably not a strong likelihood of
a claim against the County, but there is a small chance. Having the hearing
today with an Order and staff report helps address this uncertainty. The safest
report is to give the Board whatever information is necessary to make a
decision.
The staff report was prepared in anticipation of this hearing and is not the same
as the one from October. Information was received after the October meeting
that is addressed in the current staff report.
Commissioner Daly asked if new evidence is actually being submitted and if a
seven day delay is necessary. Mr. Pilliod stated that the provisions referred to
by Mr. Sullivan are for land use proceedings, but this is not a land use
proceeding.
No further testimony was offered.
Mr. Fitch presented his rebuttal. He said there is no subdivision plat or a
preliminary plan. There are conceptual ideas that show plans for three different
access points. There are multiple developments in the County with much fewer
access points, including where he lives, Eagle Crest. The 1% and 99% idea is
also incorrect. Judge Tiktin found that Mr. Leason had I% title but all of the
development rights. There is a motion for clarification in the Circuit Court on
this. There was never a golf course proposed. The issue is whether the
property could be developed into more than the five lots. Probably two-thirds
of the property is open meadow and little is treed. The final thing is why do
this? Mr. Pillion's advice is sound. Otherwise a new lawsuit would need to be
filed against Deschutes County and consolidated with the State's. The waiver is
necessary to keep Deschutes County out of the litigation. Under Statute, if
regulations are still being imposed, the County will have to be added.
The waiver award is necessary to avoid that scenario and would be prudent for
the County to do. This clarifies litigation and who is in and who is out.
Commissioner Luke said that he feels the State hasn't settled is because of the
acquisition date. Mr. Fitch stated that Judge Tiktin found 1971 the date for
compensatory purposes. The State is liable to 1971 for devaluation for the
property. The amount could be $3.3 million or $32 million depending on who
estimated it. The amount is being tried again. The judge set it over and it is up
in the air due to the number of cases. Nothing in the Court of Appeals affects
the amount. It is only on the County's waiver.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 6 of 13 Pages
Commissioner Luke asked staff if a decision was made on the acquisition date
by the Court. Mr. Pilliod said there have been two decisions. The Board's
decision was appealed and Circuit Court affirmed the date, for both Mr. Leason
and his corporation. Separate from that, the State denied a Measure 37 waiver,
and it was a part of the claim for damages brought by the Leasons against the
State. Based on how that case was handled, there was a preliminary
determination by the Circuit Court as to Mr. Leason's acquisition date.
Separately, and to be decided by the Circuit Court, is the amount of damages
due to State regulations.
The County decision, made on review by the Circuit Court, is on review at the
Court of Appeals. Any judgment at the State level could end up at the Court of
Appeals as well.
Commissioner Baney said that without a State waiver they cannot do anything;
why is the County doing this now. It seems to be circular. Mr. Pilliod said that
a State waiver is a trigger point to seek damages. If a person feels they are
entitled to damages simply has to file a lawsuit. It is a separate consideration
when you look at alternatives, monetary relief. By having a County proceeding
it rules out this aspect. If the Board decides prior to December 6 it will not be
known if it matters.
Commissioner Luke stated that it was in the best interest of the County to have
a positive vote the last time, due to potential lawsuit. He asked for the Sate's
justification to turn down the case. Mr. Pilliod said that is may all relate to the
acquisition date. If Mr. Leason had transferred his entire ownership interest to a
corporation, the land use regulations would have had a different effect. The
State viewed the conveyance as a new acquisition date regardless of the fact not
all of the ownership was transferred.
Mr. Pilliod stated that it is not necessary to keep the record open and Mr. Fitch
can provide information to Mr. Sullivan later. There is no legal requirement to
keep the record open. Commissioner Luke said that this has been appealed
more than once and all information is probably in the record at this point.
Chair Daly closed the hearing at this point.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 7 of 13 Pages
Commissioner Luke said he does understand the reasons for addressing this
issue today. The Circuit Court has asked the County to make a decision in this
regard. Mr. Pilliod stated that the County will be summoned for a lawsuit if it
does not make a decision.
DALY: Move Order No. 2007-165.
LUKE: Second.
VOTE: LUKE: Yes.
BANEY: No. (Split vote.)
DALY: Chair vote yes.
4. Before the Board was a Public Hearing on an Appeal of the Hearings
Officer's Denial of the Siting of Dwellings and Structures in a Forest Zone
(Appellant: Hopp).
Chair Daly read the opening statement (a copy of which is attached), and
opened the hearing.
Regarding ex parte contacts, conflicts of interest and bias, no disclosures were
offered except Commissioner Daly indicated he knows the Hopp family,
primarily through 4-H events.
Chris Bedsaul gave an overview of the item. The Hearings Officer's denial was
primarily because of a failure to address fire control and mitigation issues in a
forest zone. Staff recommends support of the Hearings Officer's decision.
Laurie Craghead clarified that the Hearings Officer denied the application
because of dwelling siting, not just the partition. Also, last week the applicant
submitted draft findings in the event the Board decides to approve the
application; however, she has not yet had time to fully review the document.
Commissioner Luke stated that access to roads is usually the problem. Mr.
Bedsaul indicated the Hearings Officer did address this issue.
Commissioner Luke stated that Measure 49 takes effect soon and deals with
vested rights. Ms. Craghead said that it could affect this situation.
Commissioner Baney asked for clarification regarding increased fire hazards.
Minutes of board of Commissioners' Business Meeting Monday, December 3, 2007
Page 8 of 13 Pages
Ed Fitch and Bill Hopp came before the Board. Mr. Fitch, an attorney who
represents the applicant, said the property was acquired in 1970, prior to the
adoption of various laws and bills that affect the property. It is adjacent to RR-
10 zoned property on three sides. The applicant also owns adjacent property.
Mr. Fitch stated that the Hearings Officer misread the application; it is for a
partition only. Those other uses will be addressed during the conditional use
process. (He referred to an oversized map at this time)
A question was asked why just a partition now and not the conditional use
permits. Mr. Hopp said he looked at Measure 37 which allowed him to break
off two additional parcels. He and his wife have three sons and would like to
have that flexibility if they wish to live on the property. The sons are not yet in
a position to build live on the property at this time. He does not want to have to
put in roads when it is not yet established where future homes might be built.
Commissioner Luke said that if this is approved under Measure 37, Mr. Hopp
would have to apply for and build the house. Commissioner Daly asked if an
election has to be done between Measure 37 and Measure 49. Mr. Fitch stated
that he understands that a letter will be sent out by DLCD and a decision must
be made.
Commissioner Baney asked if they have pursued other avenues to get to where
they want. Mr. Fitch stated that they filed a motion for reconsideration that
went before the Hearings Officer. Ms. Craghead said that is unlikely that she
could get work done on this case prior to Thursday. It will come down to the
courts as to when vesting occurs. There are several dates involved and it is
uncertain as to what dates apply.
Mr. Bedsaul stated that item #7 of the original application requested two
additional lots for single family dwellings. Mr. Fitch added that there was no
conditional use permit requested. Mr. Bedsaul said that the new dwellings may
not allow sufficient space for firebreaks. Commissioner Baney indicated that
she feels it appears that the dwelling information was not included and the
Hearings Officer made some assumptions about the future dwellings.
Mr. Fitch added that the Hearings Officer felt this was an application for the
dwellings; it is not. All of the fire break analysis was done and should allow
conditional use permits to be processed in the future. However, this is not
presently an issue. An easement from the neighboring property allowing
adequate legal access to the property has been obtained.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 9 of 13 Pages
Mr. Fitch stated that an additional document is a memorandum from the Fire
District indicating what is required to comply.
The State did not waive Goal 5, but the County did. Goal 5 doesn't apply to
this application. Although there is a safety issue siting homes in the forest, that
is not the issue today. This will come when the dwelling permit process begins.
Also, Mr. Fitch feels that there is no effect on this under Measure 49. All of the
criteria have been complied with at this point. It could be to Mr. Hopp's benefit
to handle this under Measure 49 but the ramifications of the measure are not yet
known; it could very well end up the courts for some time.
Paul Dewey, representing Central Oregon Land Watch, requested that an
additional seven days be allowed to submit further information. Ms. Craghead
stated that the opening statement said that the Board could entertain this
possibility, but it is not required by statute except at the initial hearing.
Commissioner Luke said that he would like more information on why Mr.
Dewey might need more time. Mr. Dewey stated that he would like to review
the exhibits that were presented, as well as the draft. It is a partial de novo
hearing but Goal 5 was mentioned, and he wants to know if he needs to respond
to this as well.
Ms. Craghead stated that some of the statements were beyond the scope of the
limited de novo. Commissioner Baney asked how Goal 5 would come into
play, whether at the partition or the siting. Ms. Craghead said it was briefly
mentioned today in comments and could be pertinent.
Chair Daly said that clearly they were only interested in discussing the one
issue and did not mean to let other evidence come in. Ms. Craghead stated that
since other information as allowed, rebuttal should be provided for.
Mr. Dewey said that the Hearings Officer did not misread the application. She
was asked to address the partition standard in regard to whether the partitioned
properties would be suitable for the intended use, under Code 17.22.020(5).
The fire risk entered into the issue at this point. On page 5 of her decision, the
applicants were given the opportunity to clarify the issue. She also stated that a
minimum of ten acres would be necessary to provide for firebreaks and to keep
the risk of fire lower. She didn't turn down the partition on just one standard;
there were other criteria that would not be satisfied. Also, Measure 37 does not
waive health and safety regulations.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 10 of 13 Pages
Commissioner Daly said that Code requires that even though there is no
conditional use permit, the use has to be suitable. He asked if the application
for partition asks this question; he assumes that it is addressed when the
conditional use permit is filed. Commissioner Baney said that if the mitigation
requirements could be met, could this proceed. Mr. Bedsaul stated there are
some solutions for these mitigation requirements offered and could be approved
by the Board. When dimensional requirements are considered, there would be a
very small building envelope on one of the lots. The applicant provided an off-
site easement to maintain the firebreak on adjacent properties.
Commissioner Luke stated that homes area allowed in areas that are completely
forested. There are ways to mitigate this potential hazard.
Mr. Dewey said that he would like to review whatever has been submitted,
including the draft decision and a copy of the easement.
No other opposing testimony was offered.
Mr. Fitch said that the criteria is whether it is generally suitable, whether is
applies to the comprehensive plan and suitability issues, and whether access is
appropriate, but the siting standards are snot cross-referenced. Because Mr.
Hopp owns adjacent properties and conditioned the partition on recordation of
easements to allow firebreaks, these are suitable lots. All of the requirements of
the partition ordinance have been met. There was no conditional use permit
number attached to this, and no conditional use has been requested. The only
requires was for a partition.
The Hearings Officer has indicated there are suitable building sites on each
parcel and the details of each individual dwelling would be addressed in detail
at the time of the conditional use permit process. It is inappropriate to go into
siting standards through the partitioning process.
Commissioner Luke asked what the partial de novo is supposed to cover. The
Order does not specifically say the subject matter. Ms. Craghead replied that it
was to be on the Code provision.
Commissioner Baney said that if the Board approved the partition, this could
result in a partition that may not be buildable. The next step would have to be
where the other pieces could come into play, such as suitability.
Chair Daly said that he does not feel the applicant provided any new information
on rebuttal.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 11 of 13 Pages
Staff had'no closing comments. Ms. Craghead asked if the request to hold the
record open will be considered. She is not sure what possible new evidence was
present except the easement and the draft decision submitted to staff. However,
the draft decision was not presented to the Board so it is not part of the record.
Commissioner Luke said he would like to do a bit more research himself.
Commissioner Baney asked if the Commissioners created a problem in this
being a last-minute issue. Ms. Craghead stated that it was difficult to schedule,
due to conferences and other land use issues to be addressed ahead of this one.
Commissioner Daly stated that the issue of the easement was discussed in the
Hearings Officer's decision. Ms. Craghead said the only change is the
easement is now recorded.
Commissioner Baney said she doesn't think there was enough entered into
today to cause a delay. Ms. Craghead said that everything is already in the
record for the Board to consider. Commissioner Daly said he regrets that he let
something new come in, if it did, to cause a delay. Ms. Craghead said the only
new evidence appears to be the easement issue. Commissioner Luke expressed
concern regarding a draft decision being submitted even though the Board did
not see it or has not made a decision. Ms. Craghead stated this would probably
not be a problem in an appeal.
Commissioner Baney stated that she doesn't feel that the siting is a part of this
application. It meets the requirements for a partition. The next phase, siting, is
relevant only in the future.
Commissioner Luke said it bothers him that they are forced to make a decision
based on a voter approved measure. He wants more time to research the
arguments. Commissioner Baney said that her decision would be the same
regardless of the timing as she feels the two issues, the partition and the siting,
are separate. Commissioner Daly agreed.
Chair Daly closed the hearing at this time.
BANEY: Move to reverse the Hearings Officer's decision and approve the
application; and adopt the Hearings Officer's conditions of approval.
DALY: Second.
VOTE: LUKE: No. (Split vote)
BANEY: Yes.
DALY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 12 of 13 Pages
5. Before the Board were Additions to the Agenda.
None were offered.
Being no further items to come before the Board, Chair Daly adjourned the
meeting at 12:45 P.m.
DATED this 3rd Day of December 2007 for the Deschutes County Board
of Commissioners.
N4. Daly,
ATTEST:
qnxvx'~ ~FAh~
Recording Secretary
Attachments
Exhibit A - Agenda
Dennis R. Luke, ice Ch
~air,
Tammy Baney, Comm' ioner
Exhibit B - Opening Statement (Hopp Appeal)
Minutes of Board of Commissioners' Business Meeting Monday, December 3, 2007
Page 13 of 13 Pages
Es o
C { Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
BUSINESS MEETING AGENDA - LAND USE
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., MONDAY, DECEMBER 3, 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 cards 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. A HEARING (continued from April 2 and April 16) and Consideration of
Signature of Order No. 2007-073, a Measure 37 Claim (Pine Meadow Ranch
Sokol) - Mark Pilliod, Legal Counsel; Tom Anderson, Community
Development Department
3. A PUBLIC HEARING (continued from October 22) on Remand regarding a
Claim for Compensation under Measure 37 (File #M37-05-7; Claimant: Leason
- Pine Ridge Ranch) - Kevin Harrison, Community Development Department
4. A PUBLIC HEARING on an Appeal of the Hearings Officer's Denial of the
Siting of Dwellings and Structures in a Forest Zone (Appellant: Hopp) - Chris
Bedsaul, Community Development Department
5. ADDITIONS TO THE AGENDA
Board of Commissioners' Business Meeting Agenda Monday, December 3, 2007
Page 1 of 5 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, December 3, 2007
10:00 a.m. Board of Commissioners' 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, December 4, 2007
9:30 a.m. Interviews - Commission on Children & Families' Board Vacancy
Wednesday, December 5, 2007
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, December 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, December 12, 2007
10:00 a.m. Board of Commissioners' Meeting for the week
1:30 p.m. Administrative Work Session for the week - could include executive session(s)
Board of Commissioners' Business Meeting Agenda Monday, December 3, 2007
Page 2 of 5 Pages
Thursday, December 13, 2007
1:00 P.M. Mental Health Department Update
2:00 p.m. Health Department Update
Monday, December 17, 2007
10:00 a.m. Board of Commissioners' Meeting for the week
1:30 p.m. Administrative Work Session - could include executive session(s)
Tuesday, December 18, 2007
9:00 a.m. Signing Ceremony - East-West Community Fire Plan
10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee
Wednesday, December 19, 2007
11:00 a.m. Oregon Youth Challenge Graduation Ceremony - Fair & Expo Center
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, December 20, 2007
9:00 a.m. Fair & Expo Department Update
10:00 a.m. Juvenile Department Update
1:30 p.m. Sheriffs Office Update, at Sheriffs Office
Tuesday, December 25, 2007
Most County offices will be closed to observe Christmas Day.
Thursday, December 27, 2007
4:00 p.m. U.S. Highway 97 - North Corridor Steering Committee Meeting
Monday, December 31, 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, December 3, 2007
Page 3 of 5 Pages
Tuesday, January 1, 2008
Most County offices will be closed to observe New Years' Day.
Wednesday, January 2, 2008
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, January 7, 2008
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
5:30 p.m. Joint Work Session with the City of Bend Council, at City Hall
Wednesday, January 9 2008
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, January 10, 2008
7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers
Monday, January 14, 2008
1:30 p.m. Administrative Work Session - could include executive session(s)
Tuesday, January 15, 2008
10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee
Wednesday, January 16, 2008
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, January 17, 2008
7:00 a.m. Meeting with Bend Chamber of Commerce - Legislative Policy Council
Board of Commissioners' Business Meeting Agenda Monday, December 3, 2007
Page 4 of 5 Pages
Monday, January 21, 2008
Most County offices will be closed to observe Martin Luther King Jr. Day
Wednesday, January 23, 2008
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, January 28, 2008
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Tuesday, January 29, 2008
1:00 P.M. Commission on Children & Families' Update
Wednesday, January 30, 2008
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
5:30 p.m. (Tentative) Meeting with DEQ and DLCD regarding South County Groundwater
Issues
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, December 3, 2007
Page 5 of 5 Pages
BOARD OF COMMISSIONERS PRE-HEARING STATEMENT
Introduction
This is an appeal hearing for the Hearings Officer's decision for denial of application No.
MP07-3
The Applicant requests approval of a Partition to create three (3) Lots in the Forest
Use (F-2) and Wildlife Area Combining (WA) Zones.
Burden of proof and Applicable criteria
The applicant has the burden of proving that they are entitled to the land use approval
sought. The standards applicable to the applications are listed on the copies of the
Hearings Officer's decision located at the table next to the entrance to this hearing room.
Failure on the part of any person to raise an issue, with sufficient specificity to afford the
Board of County Commissioners and parties to this proceeding an opportunity to
respond to the issue precludes, appeal to the Land Use Board of Appeals on that issue.
Additionally, failure of the applicant to raise constitutional or other issues relating to the
proposed conditions of approval with sufficient specificity to allow the Board to respond
to the issue precludes an action for damages in circuit court.
Hearings Procedure
The procedures applicable to this hearing provide that the Board of County
Commissioners will hear testimony, receive evidence and consider the testimony,
evidence and information submitted into the record, and will be the basis for their
decision. The record as developed to this point is available for public review at this
hearing and placed before the Board.
Order of Presentation
The hearing will be conducted in the following order. The staff will give a staff report of
the prior proceedings and the issues raised by the applicant/appellant. The applicant will
then have an opportunity to make a presentation and offer testimony and evidence.
Proponents of the appeal will then be given a chance to testify. When all other
proponents have testified, opponents will then be given a chance to testify and present
evidence. After both proponents and opponents have testified, the applicant will be
allowed to present rebuttal testimony, but may not present new evidence. At the Board's
discretion, if the applicant presented new evidence on rebuttal, opponents may be
recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be
afforded an opportunity to make any closing comments. The Board may limit the time
period for presentations.
Cross-examination of witnesses will not be allowed. A witness, who wishes, during that
witness' testimony, however, to ask a question of a previous witness may direct the
question to the Chair. If a person has already testified but wishes to ask a question of a
Jy
subsequent witness, that person may also direct the question to the Chair after all other
witnesses have testified, but prior to the proponent's rebuttal. The Chair is free to decide
whether or not to ask such questions of the witness.
Continuances: The grant of a continuance or record extension shall be at the discretion
of the Board.
If the Board grants a continuance, it shall continue the public hearing to a date certain at
least seven days from the date of this hearing or leave the written record open for at
least seven days for additional written evidence.
If at the conclusion of the hearing the Board leaves the record open for additional written
evidence or testimony, the record shall be left open for at least seven days for submittal
of new written evidence or testimony and at least seven additional days for response to
the evidence received while the record was held open. Written evidence or testimony
submitted during the period the record is held open shall be limited to evidence or
testimony that rebuts previously submitted evidence or testimony.
If the hearing is continued or the record left open, the applicant shall also be allowed at
least seven days after the record is closed to all other parties to submit final written
arguments but no new evidence in support of the application.
Pre-hearing Contacts, Biases, Conflicts of Interests
Do any of the Commissioners have any ex-parte contacts, prior hearing observations,
biases, or conflicts of interest to declare? If so, please state the nature and extent of
those.
Does any party wish to challenge any Commissioner based on ex-parte contacts, biases
or conflicts of interest?
(Hearing no challenges, I shall proceed.)
IF YOU WISH TO TESTIFY
Please complete this card & turn
it in o a County staff person.
Name: NO
Mailing Address: (K ~Q_
Phone z66 32~- q-~3 zo
E-mail Address: rV A,
Date: 1z/;)07
Subject: ~-c?a q-m ~ 3 Cfa~•
IF YOU WISH TO TESTIFY
Please complete this card & turn
it in to a Co my staff, person.
Name: ct dn
i~
Mailing Address:-
Phone
E-mail Address:
Date:
Subject: Id-
IF YOU WISH TO TESTIFY
Please complete this card & turn
it in to a County staff person.
Name's
Mailing Address: n e mv , ee.
A p t-; -7 ?a I
Phone ' ri
E-mail Address:
Date:
Subject:
IF YOU WISH TO TESTIFY
Please complete this card & turn
it in to a County staff person.
Name: 940L 101~waY
Mailing Address: ~53Fnrw v:
Phone 3,-2l793
E-mail Address: PdewfI- %or.^ c.b(d
Date: L2i3 /0?
Subject: ,_6w
IN THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY, OREGON
In the Matter of an Application to
Waive Land Use Regulations by
Pine Ridge Ranch Company, Inc.
And E.J. and Gertrude Leason
under ORS 197.352
Memorandum of Opponents Bruce
Bowen and Eva Eagle
This matter comes before the Board on December 3, 2007 for the second time on remand
from the Deschutes County Circuit Court. The undersigned represents Bruce Bowen and Eva
Eagle, who live at 17212 Pine Drive, Sisters, and oppose the grant of this waiver. As the Board
will recall, the remand was on the issue of feasibility. Moreover, as the Board knows, the basis
for this claim, i.e., ORS 197.352 is substantially amended as of December 6, 2007. While
opponents appreciate the Board's desire to resolve this case expeditiously, we do not believe it
can (or should) be done before that date.' However, to make a complete record, opponents
submit their position in writing, as well as orally, for the convenience of the Board, setting its
main points by headings.
This Case Is Moot. Measure 49 was passed by Oregon voters on November 61n,
effective 30 days later. That Measure provides that "just compensation" for all previously filed
Measure 37 claims outside urban growth boundaries are handled under sections 6 or 7 of its
provisions, unless the claim has been transformed into a "common law vested right." The
Measure provides for notice and an application process for Measure 37 claimants that will allow
from three to ten homesites on qualified properties.
Last Thursday, additional evidence was placed in the record in the form of various staff reports and
evaluations regarding roads, septic tanks and a community sewer system, and a planning staff evaluation of the
application. While opponents have scrambled to respond to this evidence, they request either a seven day
continuance of the hearing or leaving the record open for a similar period to respond to this new evidence as the
right to respond to new evidence is a matter of fundamental fairness and due process. Failure to do so will prejudice
our substantial rights to respond and participate fully in these proceedings. The Board is required to enter findings
to decide each legal and factual issue presented to it by the parties. If opponents do not have sufficient time to
prepare their presentation, as they contend, that is sufficient to prejudice their substantial rights.
Claimants seek to avoid this result by getting their claim approved just before the new
law takes effect and, presumably, filing development applications to "vest" a right to
development.2 The use of the words "common law vested right" in Section 5(2) were deliberate
and meant both to preclude LCDC rulemaking and to have vesting decisions made on a case-by-
case basis. The universally recognized authority on this point is Clackamas County v. Holmes,
265 Or 193, 508 P2d 190 (1973). Holmes set forth a number of factors to determine whether a
development were "vested" as follows:
o The amount of money spent on developing the use in relation to the total
cost of establishing the use.
o The good faith of the property owner.
o Whether the property owner had notice of the proposed change in law
before beginning the development.
o Whether the improvements could be used for other uses that are allowed
under the new law.
o The kind of use, location and cost of the development; and
o Whether the owner's acts rise beyond preparation (land clearance,
planning, etc.)3
In this case, there is no physical commitment of the land to residential homesites, and
Measure 49 is the specific and exclusive basis for dealing with Measure 37 claims. The "no
changing the goalposts" provisions of ORS 215.427(3) do not apply in such a case, where the
legislature and the people have commanded a lawful, physical commitment of land done in good
faith and without notice of a pending change in law. Claimants do not meet these standards
In any event, the "no changing the goalposts" rule does not constitute common law
vesting. It merely determines what regulations may be used in determining an application. The
z Counsel for Claimants has transmitted to this Board (without providing a copy for counsel) a memorandum
dated November 13, 2007, setting forth some interesting contentions to the effect that the mere filing of
development applications vests the claim. As set forth in this memorandum, these contentions are not well taken.
3 See also Washington County v. Stark, 10 Or App 384, 499 P2d 1337 (1972). Vested right must be lawful
and must unequivocally and physically commit land to use subsequently prohibited.
rule does nothing to "vest" a right to develop and the Claimants do not vest their right to
develop. As noted above, common law vesting was chosen specifically for Measure 49 and
requires on the ground changes, not simply an application in the door of a planning office.. As
a result, the claimants now need to file under Measure 49, having failed to vest under the terms
of Measure 37.
II. Feasibility4 Opponents have previously submitted evidence regarding whether
provision of sufficient potable water to the subject site is feasible. In addition, the recent staff
reports raise a more basic issue as to whether a single access point can accommodate the 425, or
even the 95, subdivision lots they propose. As will be demonstrated previously and during the
hearing, we believe such a development is not feasible. As noted in our previous letter to the
Board, it is the current health and safety standards apply to this case, and not those that existed
previously, and the application of those standards defeats Claimants' Measure 37 claim.
IIl. Claimants Can't Get Double Relief Claimants will have a money judgment in
Deschutes County Circuit Court against the State of Oregon for an undetermined amount for
being unable to develop their property for residential purposes. When that amount has been
determined, it is the extent of "just compensation" under Measure 37 due Claimants. To allow
their development and have them paid for not developing constitutes double recovery for the
same loss.5
4 This application was filed under the former provisions of DCC 14.10.040(H), which required a
demonstration of feasibility of public facilities and services. The provisions of this section have been relaxed
subsequently, but under the "no changing the goalposts" rules of ORS 215.427(3), used by Claimants in a different
context, even relaxations of rules are trumped by this statute. Territorial Neighbors v. Lane County, 16 Or LUBA
641)1988).
5 Opponents are aware of the possibility that the Circuit Court could take a different position before the
decision is reduced to a judgment or that it might be reversed on appeal. If there is a grant of the waiver, a condition
could be written as follows:
IV. No Bi-Location of Measure 37 Claim against CountX As the Board is
aware, this claim is before the Oregon Court of Appeals. As we suggested in previous
correspondence to the Board, the case cannot be in two places at the same time and the Board
lacks jurisdiction over this matter at this time.
V. Ownership Again, as the Board is aware, opponents do not believe that
Claimant's ownership interest qualifies it for relief under Measure 37. This is a matter currently
before the Oregon Court of Appeals.
VI. Uses Allowed If Claimants Are Correct on an October, 1971 Acquisition Date As
the Paul Blikstad memorandum of November 20, 2007 demonstrates, there was a plan and
subdivision regulations in place on October 26, 1971 when Claimants assert they acquired the
subject property.6 The plan is implemented, in part, by the subdivision regulations under ORS
215.110(1)(e). The plan does not authorize golf courses in lands designated for "intensive
agriculture." But more importantly, the Blikstad memorandum also indicates that only 5 acre
parcels were allowed under the "intensive agriculture" designation. By extension, the
agricultural designation in the plan permits only dwellings related to farm use, as they were the
only residential uses allowed under an agricultural designation by ORS 215.213. A residential
subdivision would not have been allowed in any case and this claim should be denied.
"This waiver shall be ineffective if a money judgment against the State of Oregon and in favor of
Claimants is entered under the provisions of ORS 197.352 by a court of competent jurisdiction."
6 In addition, ORS 92.014, which prohibits the creation of a street or way for the purpose of partitioning land
(and does not require implementing county legislation) has existed since 1953, is applicable. In addition, the Interim
Planning Goals adopted in 1969 through S13 10, were also applicable. These goals reinforce the agricultural lands
designation (and consequent restrictions) on the subject site.
7 If even a 95-lot residential subdivision could not have been placed on the subject site in 1971, there is no
loss attributable to subsequent land use regulations on this site.
CONCLUSION
For the reasons given above, opponents request the subject claim be denied.
Respectfully Submitted,
Garvey Schubert
Edward J. SullWah-,'/0 /6,1167, of Attorneys for Bruce
Bowen and Eva Eagle
PDX_DOCS:404179.1 [36833-00100]
DRAFT 12/1/07 4:46 PM
Paul D. Dewey Attorney at Law
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
fax (541) 383-3470
dp ewey(a-)bendcable.com
December 3, 2007
Board of Commissioners
Deschutes County
1300 NW Wall Street, Suite 200
Bend, OR 97701-1960
Re: Dorro Sokol / Pine Meadow Ranch, Inc. Measure 37 Claim
Dear Commissioners:
On behalf of Central Oregon LandWatch, I am requesting that the Dorro Sokol / Pine Meadow
Ranch, Inc. Measure 37 claim be denied. We also request an extension of time to submit
comments since notice of this hearing did not appear on the County website until Friday
afternoon, November 30.
This Measure 37 claim should be denied where the claimant filed after December 4, 2006, and
was required to first have applied for a permit for land division and/or development of the
property which is the subject of the claim prior to submitting this Measure 37 claim. This is a
clear requirement of ORS 197.352(5) and DCC 14.010(G).
Additionally, the information provided on your website for this claim did not include evidence of
deeds and ownership history as required by your Measure 37 claim form. There is, therefore,
inadequate evidence of ownership. It also appears likely that after the alleged March 1, 1971,
acquisition date the property was conveyed from Dorro Sokol to the corporation Pine Meadow
Ranch, Inc. Since under Oregon corporation law a corporation is a separate legal entity from the
individuals who own it, even if there is just one shareholder, the corporation is the "present
owner" under Measure 37. If the County would elect to grant a "waiver" of regulations for this
claim, such waiver would be limited to the date the property was acquired by the present owner.
Furthermore, there is no evidence in the record showing that the claimants could do what they
wished to do under regulations in 1971. In fact, the State Legislature in 1961 and 1963 adopted
legislation governing zoning of farm use areas in ordinances adopted after September 2, 1963.
This legislation required that land within such farm use zones "shall be used exclusively for farm
use, except as provided in [ORS 215.213]." ORS 215.203 (1963 and 1971). Under the County's
1970 Comprehensive Plan, this property was under an agriculture designation. (See the
County's recent Hurtley decision.) The first time the Legislature authorized non-farm dwellings
as an allowed non-farm use in ORS 215.213 was in 1973. Accordingly, state law restricted non-
farm dwellings in farm zones adopted after 1963, which is the case in claimants' situation in
1971. Claimants have not demonstrated that state regulations governing non-farm dwellings in
December 3, 2007
Page 2
place at the time of their asserted acquisition in March of 1971 would have permitted a use of the
property that they are unable to establish today.
This Measure 37 claim should also be denied where:
1. The allegedly restricting County regulations are not identified;
2. There is no evidence of reduction in value;
3. Any reduction in value would have to be shown with an analysis of the value of the
property before the regulation and following the regulation to actually show a
reduction caused by that regulation;
4. The claim is not entitled to a blanket waiver in lieu of compensation.
Thank you again for this opportunity to comment.
Very truly yours,
PAUL DEWEY
PD:ao
cc: COLW Board