2008-979-Minutes for Meeting August 06,2008 Recorded 12/11/2008DESCHUTES COUNTY OFFICIAL RECORDS CJ X008■g19
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 12/1112008 10;40;27 AM
1111111111j1111111111111111 III
2008-5
Do not remove this page from original document.
Deschutes County Clerk
Certificate Page
11
If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
previously recorded in Book
or as Fee Number
and Page
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, AUGUST 6, 2008
Present were Commissioners Dennis R. Luke, Michael M. Daly and Tammy
Melton. Also present were Dave Kanner, County Administrator; Erik Kropp,
Deputy County Administrator; Susan Ross and Teresa Rozic, Property and
Facilities; Dan Despotopulos, Fair & Expo; Tom Blust, Road Department; David
Inbody, Assistant to the Administrator: Tom Anderson, Peter Gutowsky and
Barbara Rich, Community Development; Mark Pilliod and Laurie Craghead,
Legal Counsel; media representative Hillary Borrud of The Bulletin and a reporter
from KOHD TV; and fourteen other citizens.
Chair Luke opened the meeting at 1: 35 p.m.
1. Solid Waste Update.
Dave Kanner said that Timm Schimke could not attend the meeting, but advised
that a modification is being made to the rock removal project; the rock crushing
will be done on site and then transported; this will allow for fewer truck trips
and result in a cost savings.
The demolition landfill study is almost complete and there do not seem to be
issues with hazardous waste at this point. The City wanted to wait until the
UGB expansion was done prior to working on doing a framework plan this
property, but has agreed to do this sooner. If there is waste left in place, there
are limitations on how the land can be developed, and DEQ will need to be
involved. There are many models throughout the State on redeveloping this
type of property. An RFP can be distributed so that developers can provide
input on what they would like to do.
A rate increase for collection fees is being examined, and an independent, third
party CPA feels a 10% increase can be justified. This would be for all franchise
holders except Wilderness in La Pine, as their rates are higher anyway due to
their customers being more widely distributed.
Minutes of Administrative Work Session Wednesday, August 6, 2008
Page 1 of 5 Pages
Commissioner Melton asked why, since the County recently raised tipping fees,
this was not included at the same time. Brad Bailey, one of the franchise
holders, said that the timing was so that they did not have time to put a rate
increase plan together. The cities of Redmond and Bend have already approved
increases.
In regard to tipping fees, this is something that needs additional discussion
soon.
2. Discussion of Proposed Amendment to Transient Lodging Tax Rate.
During a July 17 meeting with Fair Board, the Commissioners were urged to
restructure this proposal. Mr. Kanner said that if the voters pass it, there would
be a significant amount of flexibility.
Tom Blust referred to various documents, noting that there are 105 miles of
roads in the County that serve recreational areas.
Mr. Kanner said that the Fair Board did not feel that any of this funding should
go to roads; that all should go to the Fair and Expo Center and to COVA. This
could generate over $1 million, but the Fair and Expo would like $650,000 for
reserves.
Mark Pilliod gave an overview of the requirements for putting this issue on the
ballot. The reasons for the measure would need to be stated. A reference
would be made that the amount would change from 7% to 9% to match the rate
currently charged by the cities. Mr. Kanner said that the ballot title would have
specific language on how the funds would be used.
A hearing will be scheduled for the Monday, August 18 business meeting.
Tom Luersen said representatives of resorts met and did not know there was
anything in writing on this proposal. A rate raise of this type is a concern due
to the economy. This is tied to the real estate market as well.
Also, regarding the Fairgrounds, they feel there is some tourism promotion but
the amount is under debate. Assumptions are being made and precedence is
being set.
Minutes of Administrative Work Session Wednesday, August 6, 2008
Page 2 of 5 Pages
In regard to using this funding for roads, he does not feels there is a connection
and this is not the intent of the rules in support of COVA. He feels that there is
no partnering in this regard.
Commissioner Luke said that the County helped raise money for the group in
the worst economic times in the 1980's. Road 45 has to be maintained by the
County forever and it is directly related to tourism.
Scott Pence stated that he understands the situation, and that it has been
discussed for some time.
Jim Kinnney from 7th Mountain said that they anticipated a proposed ballot
measure that would give consideration to the Fair & Expo; but the road
component is a surprise. As an industry, they want to help, but they do not feel
that they are a part of the discussion anymore. They want to be able to justify
how the Fair & Expo Center fits into State law in this regard.
Alana Audette wants to work with the County to find a way to generate revenue
without impacting the industry.
Mr. Kanner said the Fair & Expo meets the criteria set down for conference
centers. Also, it is clear that some of the county-maintained roads clearly serve
tourism. Discussion then occurred regarding whether legislation supports these
uses of tourism dollars. Phasing in the amount was also discussed.
Commissioner Melton stated that adjustments could be made at work sessions
before or after a public hearing.
3. Progress Report on High Groundwater Lot Work Program.
Peter Gutowsky gave a PowerPoint presentation on the issue. He said that the
desired outcome is to work with the technical community, the public and other
agencies, there will be policy recommendations and suggestions for the County
to consider regarding the comprehensive plan. How these properties tie into
other types of land and overlays is important, to see if there are some possible
tradeoffs.
There are approximately 1,500 high groundwater lots in the area. Ms. Rich said
that there are another 2,500 to 3,000 lots that have not yet build upon.
Minutes of Administrative Work Session Wednesday, August 6, 2008
Page 3 of 5 Pages
$10,000 has been set aside from the State grant to run this model on potential
development of high groundwater lots.
4. Other Items.
Proposed Mental Health Facility Update
Susan Ross provided information on the potential site. Because of the Swalley
Irrigation District canal, siting the building is limited. Parking is also an issue.
Commissioner Luke suggested that the canal be piped as it is a safety nuisance
and unattractive. The land could be used for parking.
Dave Kanner said that piping could be expensive. And there are strict
requirements from the State regarding providing outdoor areas for juveniles.
He added that perhaps there could be a fueling station for vehicles in this
location. Most of the site preparation costs are for rock removal.
Tom Anderson explained that a person has contacted him in regard to concerns
about a neighbor on an adjacent property who apparently has drawn down the
person's well water. They took out a permit for a barn and now are building an
apartment; they have admitted it. This would change the use from an
agricultural exempt barn to an accessory structure. It was to be one story, but
they built two. No apartment can be put in but they could have storage or an art
studio. With the new tracking system, if a plans examiner notices something
out of line, they can set a date to check on it in six months.
In regard to the La Pine Park & Recreation building (the old, white school
building), the Fire Marshal is concerned. Dennis Perkins found serious wiring
issues and sent a letter outlining corrections that need to be done in the next
week, plus some long-term repairs.
At this time, the group went into executive Session, called under ORS
192.660(2)(h), pending or threatened litigation.
Being no further discussion, the meeting adjourned at 4:40 p.m.
Minutes of Administrative Work Session Wednesday, August 6, 2008
Page 4 of 5 Pages
DATED this 6th Day of August 2008 for the Deschutes County Board of
Commissioners.
Dennis R. Luke, Chair
Tammy aney Melton, Vice Chair
ATTEST:
(F~ ~4w
Recording Secretary
Minutes of Administrative Work Session Wednesday, August 6, 2008
Page 5 of 5 Pages
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
WORK SESSION AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 P.M., WEDNESDAY, AUGUST 6, 2008
Solid Waste Update - Timm Schimke
2. Discussion of Proposed Amendment to Transient Lodging Tax Rate - Dave
Kanner
3. Progress Report on High Groundwater Lot Work Program - Peter Gutowsky
4. Other Items
Executive Session, called under ORS 192.660(2)(h), pending or threatened
litigation
PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real
property negotiations; ORS 192.660(2) (h), pending or threatened litigation; or ORS 192.660(2) (b), personnel issues
Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at
1300 NW Wall St., Bend, unless otherwise indicated.
If you have questions regarding a meeting, please call 388-6572.
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY.
Please call (541) 388-6571 regarding alternative formats or for further information.
Q)
Q)
L
co
x
cc
V
C
~
•
~
~
O
~
c
t
61
s`
n
M
C~
cr-~
J
M
v
2
fo
EL
I0
ai
E
co
7
o
-75'
aj
bc
a
TES
~F ~ Department of Administrative Services
Aid Dave Kanner, County Administrator
1300 NW Wall St, Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202
www. ca. deschutes. or. us
July 30, 2008
TO: Board of Commissioners
FROM: Dave Kanner
RE: TLT legislative history
Per the Board's request, I had Dave Inbody assemble all of the information we have
regarding the legislative history behind the 2003 transient lodging tax bill (HB 2267).
The best examination of the legislative history begins on page 9 of Steve Griffin's memo,
which is attached to Dave's memo as Attachment B.
I also had Tom Blust, Roger Olsen and George Kolb calculate average annual
maintenance costs on those roads we believe qualify as "tourism related facilities," and
that's enclosed as Attachment D.
Enhancing the Lives of Citizens by Delivering Quality Services in a Cost-Effective Manner
TO: DAVE KANNER
FROM: DAVE INBODY
SUBJECT: TRANSIENT LODGING TAX - LEGISLATIVE HISTORY
DATE: 7/29/2008
CC:
This memo is intended to provide information relating to the legislative history of the transient lodging tax
and the impacts on Deschutes County's implementation and distribution of the tax. Specifically, this will
address those aspects affecting the use of transient lodging taxes for road maintenance and improvements.
Four primary documents were referenced in addressing this issue. Those documents include:
Local Transient Lodging Tax Increase or New Adoption After July 1, 2003: Brief
overview of requirements of House Bill 2267 (2003) - This document was prepared by the
Association of Oregon Counties (AOC) on September 8, 2003. This overview was intended
to provide guidance to Oregon counties following the passage of HB 2267, which altered the
implementation and distribution of transient lodging tax revenue. [Attachment A]
Communication regarding: The Transient Lodging Tax Historical Background - This is
an edited version of the confidential attorney-client communication prepared by Steven
Griffin, Assistant Legal Counsel on February 11, 2008. This communication provides an
overview of the legal and historical background of the transient lodging tax in Deschutes
County, discusses the 2003 state legislation. [Attachment B is the edited version of this
communication, having redacted information considered exempt from disclosure under
ORS 192]
Communication regarding: Use of Room Tax Revenues For Maintenance of Forest
Road 40/45 - This confidential attorney-client communication was prepared by Mark
Amberg, then Deputy Legal Counsel on July 7, 2006. This communication addresses whether
road maintenance on Forest Road 40/45 can be funded by transient lodging taxes.
[Attachment Cl
• Tourist Roads of Deschutes County - This chart was prepared by John Anderson of the
Road Department on March 5, 2007. This is a list of county-owned roads that we believe fit
the definition of tourism-related facilities. [Attachment D]
2003 Transient Lod0n2 Tax Legislation
In 2003, the State of Oregon imposed a 1% state transient lodging tax (TLT). As part of that legislation,
restrictions were placed on local governments' ability to spend TLT revenue, as well as restrictions on the
imposition of new or increased TLT. Prior to 2003, there were no restrictions on how local governments
could spend TLT revenue. The new legislation stipulated that the percentage of TLT revenue spent on
"tourism promotion" and "tourism-related facilities" could not be decreased. Additionally, any new or
increased TLT must dedicate at least 70% of net revenue to "tourism promotion" and "tourism-related
facilities." The present TLT rate in Deschutes County of 7% was enacted in 1988. At that time, Deschutes
County was spending approximately one-third of TLT revenue on tourism (28.6% to the Central Oregon
Visitors Association (COVA) and 5.1% for the Welcome Center Debt Service). Therefore, Deschutes
z
County must dedicate at least one-third of TLT revenue to tourism. If the TLT rate were to be increased,
70% of the increase must be dedicated to tourism or tourism-related facilities.
Use of Transient Lodging Tax Revenue for Road Maintenance
In order to use TLT funds for road maintenance, it must meet the definition of either "tourism promotion"
or "tourism-related facility." A "tourism-related activity" is defined in ORS 320.300(9) as a conference
center, a convention center, a visitor information center or "other improved real property that has a useful
life of 10 or more years and has a substantial purpose of supporting tourism or accommodating tourist
activities."
The AOC overview provided additional insight relating to the "other improved real property" stipulation.
Although "substantial purpose" is not defined, comments by the legislature indicated that the definition as
it relates to tourism and accommodating tourist activities includes improvements and access to natural and
recreational facilities. AOC suggested that counties list those real properties fitting the "tourism-related
activity" definition. Deschutes County has not made such additions to county code.
Communications from both Amberg (2006) and Griffin (2008) supported the use of TLT revenue in
maintaining Forest Service Road 40/45. In the chart provided by the Road Department, portions of nine
county roads totaling more than 100 miles in distance, including Forest Service Road 40/45, are identified
as possible "tourist roads." These roads are used to access local attractions such as Smith Rock State Park,
Tumalo Falls, the Pine Mountain Observatory and several area lakes and winter parks.
2
LOCAL TRANSIENT LODGING TAX
INCREASE OR NEW ADOPTION AFTER JULY 1, 2003
Brief overview of requirements of House Bill 2267(2003)
After July 1, 2003, a county may increase an existing county transient
lodging tax (CTLT) or adopt a new one under the following limitations.
(i)
• Permit the transient lodging provider to retain a collection reimbursement
charge of at least five percent of all collected CTLT revenues [HB 2267
sec. 10(2)&(3)].
• An increased CTLT may not decrease the percentage of revenues actually
expended to fund "tourism promotion" or "tourism-related facilities"
[Sec. 11(3)].
• At least 70% of net revenue shall be used to fund "tourism promotion" or
"tourism-related facilities"; or to finance/refinance debt of "tourism-
related facilities" and pay reasonable administrative costs incurred [Sec.
11(5)&(6)].
• Not more than 30% of net revenue shall be used to fund general county
services [Sec. 11(5)&(6)].
• "Tourism promotion" means [Sec. 1(7)]:
1. Advertising, publishing, or distributing information to attract
"tourists". A "tourist" travels more than 50 miles from the
community of residence or stays overnight [Sec. 1(10)].
2. Strategic planning and research.
3. Operating "tourism promotion agencies". A "tourism promotion
agency" includes a nonprofit organization or governmental unit
responsible for year-round promotion; a nonprofit entity that manages
tourism-related economic development plans, programs, and projects;
and a regional or statewide tourism-related business association [Sec.
1($)].
4. Marketing special events and festivals designed to attract tourists.
1 ~
• "Tourism-related facility" means [Sec. 1(9)]:
1. "Conference center" - at least partially owned by a unit of local
government, governmental agency, or nonprofit organization; and
meets the membership criteria of the International Association of
Conference Centers [Sec. 1(2)].
2. "Convention center" - new or improved facility; capable of
attracting and accommodating conventions from international,
national, and regional markets requiring exhibition, ballroom, meeting
rooms, lobby, and registration space; has meeting room and ballroom
space between one-third and one-half of total size of exhibition space;
generates a majority of business from tourists; has room-block
relationship with local lodging industry; and is owned by unit of local
government, governmental agency, or nonprofit organization [Sec.
1(3)].
3. "Visitor information center" - building or portion of building for
the main purpose of distributing or disseminating information to
tourists [Sec. 1(13)].
4. "Other improved real property that has a useful life of 10 or more
years and has a substantial purpose of supporting tourism or
accommodating tourist activities".
Note 1. "Substantial purpose" is not defined. In law, "substantial"
has a wide range of meanings, from not imaginary to valuable.
Comments in committee and on the floor indicate that facilities that
fall within this definition include county fairgrounds; improvements
and access to natural and recreational facilities; historical and cultural
facilities; and the Hult Center, Keller Auditorium, and the planned
Salem Conference Center.
Note 2. A tip to consider through county counsel: The county
governing body should take official action listing improved real
property within the county that has a useful life of 10 or more years
and has a substantial purpose of supporting tourism or
accommodating tourist activities (e.g., county roads leading to public
land trail heads or viewpoints, the county fairgrounds, improvements
at viewpoints, historical and cultural museums and structures, and
access to attractions).
Association of Oregon Counties (9-8-03)
~y Q
DESCHUTES COUNTY LEGAL COUNSEL
STEVEN FFIN
Assistant L I nsel
TO: Mark Pilliod
Dave Kanner
Erik Kropp
RE: Transient Lodging Tax Historical Background
Date: July 28, 2008
File No. 3/1-010
1. Introduction
The purpose of this memorandum is to give the reader an overview of the legal and historical
background of the Deschutes County Transient Lodging Tax (TLT) program, to discuss the
2003 state transient lodging tax legislation, and to evaluate the effect of the transfer of the
Welcome Center on the county's TLT program.
The county's TLT was first levied in 1975 at a rate of 5%. Voters since have approved two
subsequent increases in the tax. The rate is currently 7%. In 2003 the state enacted its own
TLT. Part of the state legislation mandated local governments spend a portion of transient
lodging taxes on tourism promotion or funding tourist-related facilities. The amount of TLT
dollars that a local government must spend on these activities depends on the timing of the local
government's enacting or increasing its TLT.
The last increase in the Deschutes County TLT was in 1988. The purpose of the 1988 tax
increase was to purchase and construct a tourist "Welcome Center" and to promote tourism. In
2002, the county relinquished the Welcome Center to the Oregon Department of Transportation.
Since that time, the center has not been used for tourist related purposes.
A. Questions Presented
1. Is Deschutes County's transient lodging tax program in compliance with state law?
2. What is the impact of the land swap agreement involving the Welcome Center on the
lawfulness of the TLT program?
3. What will be the impact of the discharge of the Welcome Center debt on the county's
TLT program?
Transient Lodging Tax Historical Background
July 28, 2008
Page 2 of 10
4. May TILT dollars required to be spent to fund "tourist-related facilities" be used to fund
maintenance of Forest Service Road 40/45?
B. Short Answers
1. The manner in which the county spends transient tax dollars is lawful. Going forward, the
county must spend at least one-third of its transient tax dollars on tourism promotion or to
fund "tourist-related facilities." If the county raises its TILT, then the county must appropriate
70% of the increased revenue to fund tourist promotion, to fund tourist-related facilities, or to
service debt on tourist-related facilities.
2. Whether the Welcome Center is today a "tourist-related facility" is immaterial to the
lawfulness of the TILT spending. The 2003 legislation required that local governments
spend transient lodging tax dollars in a ratio that was based on the local government's ratio
of "tourism to non-tourism" spending in place on July 2, 2003. In terms of the percentage of
total TLT dollars, debt service payments on the Welcome Center have remained fairly
consistent since July 1, 2003. Therefore the same result is achieved regardless of whether
the Welcome Center debt service payments are accounted for on the tourism side or the
non-tourism side of the equation.
3. Once the debt on the Welcome Center is discharged, the county is not required to repeal the
1 % tax increase voters approved in 1988. However, because the county indicated that the
tax would be used "to promote tourism" and because the county is required to spend at least
one-third of its TLT dollars for tourist related purposes, the county should appropriate all of
the funds previously used for Welcome Center debt service to promote tourism.
4. Forest Service Road 40/45 is a "tourist-related facility" within the meaning of the state
transient lodging tax statute. Therefore, taxes which the statute requires to be spent to fund
"tourist-related facilities" may be spent maintaining Forest Service Road 40/45.
II. Factual Background
A. Deschutes County's Transient Lodging Tax Program
Transient lodging taxes are taxes collected from transients by operators of hotels, motels, and
other short-term lodgings. The taxes are remitted to the taxing authority by the operators on
behalf of the transients. The collector of the tax is permitted to retain 5% of the gross tax
receipts collected as reimbursement for the costs of collecting the tax. From the time
Deschutes County first levied a TILT in 1975 until 2003, no statute explicitly authorized a levy of
transient lodging taxes. Rather, transient lodging taxes were imposed under the local
government's general taxing authority.' Additionally, until 2003 there were no restrictions, per
se, on the manner in which transient lodging taxes could be spent.
For years the power of counties to levy taxes was expressly granted by ORS 203.120 (repealed as
unnecessary by 1981 Or. Laws ch. 140 sec 5). It is not seriously disputed that counties (with or without
charters) have the power to tax matters of county concern.
Transient Lodging Tax Historical Background
July 28, 2008
Page 3 of 10
Deschutes County's transient lodging tax was first levied in 1975 at a rate of 5%. The voters
were asked to vote up or down on a TLT. The county did not specify what the intended purpose
of the tax was (i.e., tourism promotion, general services, etc.). As it happens, the funds were
used for general county services.
In 1980 voters raised Deschutes County's TLT from 5% to 6%. The tax increase was put to the
voters with an explanation that "the increased rate is needed to promote tourism and pay for
public services to persons the County generally does not tax otherwise."
The present rate of tax of 7% was enacted in 1988. The increase from 6% to 7% was in
response to the promulgation of the Central Oregon Regional Strategy by the Oregon Economic
Development Department in 1987. The Strategy included as an element, "To provide a magnet,
the Welcome Center, which will offer, not only region wide, state-of-the-art tourism information
and displays, but business information as well (sic)." The county submitted the 1 % transient
lodging tax increase to voters on November 3, 1987. The ballot title explained that "the
increased revenues will be used to pay for the construction of a welcome center complex and
promote tourism." In a separate ordinance, the board established the Welcome Center budget
fund. Resolution No. 88-008.
B. Accounting
Since January 1, 1988, transient room taxes have been receipted into two different county
budget funds. One-seventh of the tax dollars is receipted into the Welcome Center Fund. The
remaining six-sevenths are receipted into the Transient Room Tax Fund. This split is due to the
nature and timing of certain tax increases approved by the voters.
Taxes in the Welcome Center Fund, after deduction of administrative expenses, are
appropriated for debt service related to the acquisition and construction of the Welcome Center.
In recent years there have been excess funds in the Welcome Center Fund Receipts after the
Welcome Center debt service payments are made. The excess funds have been appropriated
to the Central Oregon Visitor's Association (COVA).
In fiscal year 2003-2004, $430,974 in tax revenues were receipted into the Welcome Center
Fund. The county paid $154,000 to service debt on the Welcome Center. COVA received
$346,793 and the remaining funds were used for administrative and other expenses.Z COVA
also receives TLT dollars from the Transient Room Tax Fund (where the other six-sevenths of
the TILT are receipted).
The money receipted into the Transient Room Tax Fund, after deduction of administrative
expenses, is appropriated to the sheriff and to COVA. The sheriff receives 80% of these funds
and COVA receives 20%. All told, COVA receives approximately $800,000 per year from the
county's transient room tax (partly from the Welcome Center Fund and partly from the Transient
Room Tax Fund).
z Transient room taxes are not the only source of funds for the Welcome Center Fund. The City of Bend
contributes approximately $77,000 per year into the fund, and interest on investments contributes about
$2,000 into the fund.
Transient Lodging Tax Historical Background
July 28, 2008
Page 4 of 10
C. The Welcome Center
The county entered into a series of lease agreements with tourist promotion agencies and the
Welcome Center was operated as such for a number of years. When it became clear that the
Welcome Center was not serving its intended purpose, the county entered into a land-swap
agreement with the Department of Transportation. On November 6, 2002, the county finalized
the land-swap agreement. The department received the Welcome Center and other real
property, and Deschutes County, of course, received real property in exchange. On November
6, 2002, the Welcome Center property was transferred to the state. It is no longer used as a
"Welcome Center." Title in the land will transfer to the state upon the county's making the final
payment on the Welcome Center debt in November 2008.
III. The 2003 State Transient Lodging Tax Legislation
Prior to 2003 local governments were permitted to spend transient room tax dollars as they saw
fit. However, in 2003 the State of Oregon imposed a 1 % state transient lodging tax. The 2003
legislation placed restrictions on local governments' power to spend their own transient room tax
revenue. The legislation also restricted local governments' ability to impose new or increased
transient room taxes and placed substantial spending limitations on those dollars.
A. Spending Limitations
The 2003 transient room tax legislation requires local governments to dedicate a certain
percentage of its transient room tax dollars to "fund tourism promotion or tourism-related
facilities." ORS 320.350. The 2003 legislation did not change the validity of any transient tax
measure enacted prior to July 1, 2003. The legislature recognized that local governments have
used transient room tax dollars for a variety of purposes, including tourism promotion. The
legislature did not intend to upset any local government policy decisions made prior to the
legislature's consideration of the act.
The actual percentage of taxes that must be dedicated to tourism depends on the manner in
which the locality spent those funds prior to the enactment of the 2003 legislation. ORS
320.350(3) provides, in part,
A unit of local government that imposed a local transient lodging tax on July 1,
2003, may not decrease the percentage of total local transient lodging tax
revenues that are actually expended to fund tourism promotion or tourism-related
facilities on or after July 2, 2003.
In other words, the percentage of room tax dollars spent for tourist related purposes
immediately prior to July 2, 2003 is a floor. The county may increase the total percentage of
room tax dollars spent for tourist related purposes, but it may not decrease that percentage.
B. Deschutes County in Compliance with Spending Limitations
1. Analysis of Current Spending
On July 2, 2003 Deschutes County spent its transient tax dollars in the following manner
(source Budget for Fiscal Year, 2005-2006, 2003-2004, actual):
Transient Lodging Tax Historical Background
July 28, 2008
Page 5 of 10
Percen
e
Transient Room Taxes >>'~e~'>a>`1
Payments to COVA ($863,962) 0
28.6/o
4
0
Welcome Cent
Center Debt Service
"($154000
o
5.1%
o
Sheriff
2 061 38
$ 2 68.3/o
The county spends approximately one-third of its transient room taxes for purposes that are
related to tourism5 - payments to COVA. See, ORS 320.300(7)(c) (stating that operating a
tourism promotion agency is "tourism promotion"); ORS 320.350(9)(a) ("tourism-related facility"
includes a visitor information center); ORS 320.350(4) (permitting debt service payments).6 The
remaining two-thirds are spent on administrative costs and to provide general county services,
i.e., sheriff patrol services. As will be discussed in subsection 2 below, the county's transient
tax spending is lawful regardless of whether the debt service is classified as tourist or non-
tourist spending.
Prospectively, the county must spend funds from the 7% transient room tax in the same ratio as
it has been spending those funds. Approximately one-third of its transient tax dollars must be
spent "to fund tourism promotion or tourism-related facilities." This is the most conservative
construction of the state TLT statute. The remaining two-thirds may be spent at the county's
discretion.
The six-sevenths/one-seventh split of the taxes into two different budget funds is useful. The
1988 tax increase was the only TILT tax increase which the county may have committed to
spend on tourism promotion. It is clear that the original referral and the 1980 increase
contemplated the taxes being used to fund general county services. It would be useful to be
able to demonstrate that the 1 % tax approved in 1988 is being used for its stated purpose.
However, there is no legal requirement that, once the Welcome Center debt is discharged, that
the county account for taxes in the same manner. The only relevant legal requirement is that
the county must spend approximately one-third of TLTs for tourist purposes as defined by the
statute. The particulars of this recommendation in light of the discharge of the Welcome Center
debt are discussed in section IV below.
In conclusion, the county's use of its transient room tax dollars is lawful. The current tourism to
non-tourism ratio is in line with what the 2003 legislation requires. The voters in Deschutes
County have weighed in on the transient room tax three times. In the first two referrals it was
clear that the tax would serve dual purposes, promotion of tourism and funding county services.
In 1988 the county did not state that it intended to spend the tax increase on general county
services. Instead it declared that the funds would be spent on acquiring and constructing the
3 This amount excludes the 5% collection reimbursement which Deschutes County allows the collector of
the tax to retain.
4 The City of Bend contributes approximately $77,000.00 annually to the county's "Welcome Center
Fund." These are not transient tax dollars subject to the spending limitation.
5 The percentage is approximate because it does not account for Bend's contribution to the Welcome
Center Fund. Depending on how Bend's contribution is accounted for, the actual percentage of transient
room taxes spent on tourist related purposes is somewhere between 30 and 33%.
6 As will be discussed in section III(B)(2), below, whether or not Welcome Center debt service payments
can be considered tourist related does not affect the analysis
Transient Lodging Tax Historical Background
July 28, 2008
Page 6 of 10
Welcome Center and to promote tourism. The measure did not elaborate on which purpose
would predominate.
2. Land swap involving Welcome Center has no impact on lawfulness of transient
lodging tax spending.
This conclusion does not turn on the characterization of the Welcome Center debt payments as
either tourist or non-tourist. Debt service payments for the Welcome Center have not changed
substantially since the enactment of 2003 legislation. The following chart depicts Welcome
Center debt payments over the years:
Fiscal Year
Trar~s~etTx
Welcome Center Debt Service
Percentage
QI
Payments
2002-2003
S2,g5,185
($138;000)
4.6%
2003-2004
($154,000)
5.1%
2004-2005
,C}5Ej,851
($160,000)
5.2%
2005-2006
'~t76
($1581000)
4.9%
2006-2007 (budget)
;2r*,61
($152,000)
4.6%
2007-2008 (budget)
::r4i3,;'11
($200;000)-
5.9%
As stated earlier, the legislation requires the county to maintain the same tourism to nontourism
spending ratio as was in place on July 2, 2003. Had the character of the Welcome Center
changed after July 2, 2003, its change in status could have impacted the analysis. In this case,
the Welcome Center changed hands prior to July 1, 2003. Regardless of whether the dollars
spent on Welcome Center debt service are accounted for on the tourism side of the equation or
on the nontourism side of the equation, the ratio of tourism to nontourism spending has not
substantially changed since July 2, 2003.
C. Limitations on Transient Room Tax Increases
TLT increases are permitted under certain conditions. If the county were to increase its
transient room tax, the funds from the tax increase must be spent in a ratio that is more heavily
weighted to tourism promotion than existing revenues. Revenues from increased taxes must be
spent primarily to promote tourism or to fund tourist-related facilities. The law requires that "[a]t
least 70 percent of net revenue from a new or increased local transient lodging tax shall be used
[for tourist related purposes]." ORS 320.350(6). Tourist related purposes include "[f]und[ing]
tourism promotion or tourism related facilities" and "[f]inancing or refinanc[ing] the debt of
tourism-related facilities and pay[ing] reasonable administrative costs incurred in financing or
refinancing that debt." The remaining 30% of increased transient room taxes may be used for
general county services. Id.
Using new and increased TLT to make debt service payments for tourist related facilities is
explicitly authorized and is accounted for on the "tourist side" of the equation. ORS
320.350(5)(c). However, if a local government was using TLT dollars to service debt "on
November 23, 2003," it was required to continue to service the debt until discharged. However,
This calculation does not account for the City of Bend's contribution to the welcome center fund. The
figures presented in the chart ignore the city's contribution. Factoring in the city's contribution would have
the effect of reducing the percentage of transient room tax dollars spent on debt service.
Transient Lodging Tax Historical Background
July 28, 2008
Page 7 of 10
the statute did not clarify under what circumstances the debt service could be classified as
"tourist promotion" or "funding" tourist-related facilities. Whether debt service payments on an
existing "tourist-related facility" constitute "funding" a tourist related facility is therefore
ambiguous. The conclusions and recommendations of this memo do not depend upon
resolution of this ambiguity in any particular fashion.
The provisions of ORS 320.350(6)(c)(B) that require the local government to "reduce the tax by
the amount by which the tax was increased to finance or refinance the debt" applies only to new
and increased transient lodging taxes after July 1, 2003. As will be discussed in more detail
below, once the Welcome Center debt is discharged, the county may maintain the 1 % transient
lodging tax increase.
If a TLT is imposed or increased after July 2, 2003 in order to pay debt, ORS 320.350(5)(c)(B)
requires local governments' to eliminate or reduce the tax once the debt is discharged. The
other provision of the 2003 legislation which requires the reduction of transient lodging taxes in
some circumstances also does not apply to the 1988 increase."
IV. Impact of the Discharge of the Welcome Center Debt
The Welcome Center debt will be discharged in 2008. Once the debt is discharged, the county
is not required to eliminate the 1 % tax increase the voters approved in 1988. The county stated
that those funds would be used for the welcome center "and to promote tourism."
ORS 320.350(4) provides:
Notwithstanding subsections (1) and (2) of this section, a unit of local government
that is financing debt with local transient lodging tax revenues on November 26,
2003, must continue to finance the debt until the retirement of the debt, including any
refinancing of that debt. If the tax is not otherwise permitted under subsection (1) or
(2) of this section, at the time of the debt retirement:
(a) The local transient lodging tax revenue that financed the debt shall be
used as provided in subsection (5) of this section; or
(b) The unit of local government shall thereafter eliminate the new tax or
increase in tax otherwise described in subsection (1) or (2) of this section.
The restrictions of subsection (a) or (b) are applicable only if the "tax is not otherwise permitted
under subsection (1) or (2)." Subsections (1) and (2) of ORS 320.350 prohibit new and
increased taxes after July 1, 2003.9 The 1% tax increase here was enacted prior to July 1, 2003
therefore it is "otherwise permitted" under the statute.
8 There are other provisions of ORS 320.350(5) that relate to eliminating the tax on discharge of the debt.
These provisions to not apply to the 1988 tax increase because the tax "is otherwise permitted under
tORS 320.350(1) & (2)]." This statute is discussed in section IV.
A careful reading reveals that subsections (a) and (b) apply only to new and increased transient lodging
taxes approved on or between July 1, 2003 and November 26, 2003.
Transient Lodging Tax Historical Background
July 28, 2008
Page 8 of 10
V. River Summit Drive (Forest Service Road 40/45)
A question presented was: "May the county use a portion of its 'tourist dedicated' transient room
taxes to fund the maintenance of the former Forest Service Road (now known as River Summit
Drive) from Sunriver to Mt. Bachelor?" The answer to that question is "Yes."
Based upon expenditures on July 1, 2003 Deschutes County must dedicate 1/3 rd of its transient
room tax dollars "to fund tourism promotion or tourism-related facilities." Payments to COVA fit
within the definition of "tourism promotion" and funding "tourism-related facilities."
A. Statutory Text of "Tourism Promotion and "Tourist-Related Facility"
"Tourism promotion" means any of the following activities:
(a) Advertising, publicizing or distributing information for the purpose
of attracting or welcoming tourists;
(b) Conducting strategic planning and research necessary to
stimulate future tourism development;
(c) Operating tourism promotion agencies; and
(d) Marketing special events and festivals designed to attract tourists.
ORS 320.300(7).
Payments to COVA are funds spent for "operating a tourism promotion agenc[y]." The county
may also spend its tourism-dedicated funds to fund "tourism-related facilities." Analysis of the
text, context, and legislative history of the state transient lodging tax statute reveals that River
Summit Drive is a "tourism-rated facility."
A "tourism-related facility" is not limited to a Welcome Center or some other tourist destination.
The term has a broad definition. The 2003 legislation provides:
A "tourism-related facility":
(a) Means a conference center, convention center, or visitor
information center; and
(b) Means other improved real property that has a useful life of 10 or
more years and has a substantial purpose of supporting tourism or
accommodating tourist activities.
ORS 320.300(9).
The term "tourist":
Means a person who, for business, pleasure, recreation or participation in events
related to the arts, heritage, or culture travels from the community in which that
Transient Lodging Tax Historical Background
July 28, 2008
Page 9 of 10
person is a resident to a different community that is separate, distinct and
unrelated to the person's community of residence, and that trip:
(a) Requires the person to travel more than 50 miles from the
community of residence; or
(b) Includes an overnight stay.
ORS 320.300(10).
To meet the definition of a "tourism-related facility" a facility must either be one of the
enumerated facilities in subsection (a) or fit within the "catchall" definition of subsection (b).
River Summit Drive is a "tourist-related facility" within the meaning of "catchall" provision of
subsection (b). Specifically:
1. The road is "other improved real property;"
2. The road has a useful life of 10 or more years; and
3. The road has a substantial purpose of accommodating tourist activities (i.e., travel from
the resort areas of Sunriver to the slopes of Mt. Bachelor).
A substantial purpose of the road is to allow tourists easy access from the resort facilities at
Sunriver to the slopes of Mt. Bachelor.
B. Legislative History
This initial impression that River Summit Drive is a "tourist-related facility" is strongly supported
by the legislative history of HB 2267. In the case of an ambiguity courts look to the history of a
piece of legislation in order to determine the intent of the legislature.
The initial version of state transient lodging tax legislation would have preempted local transient
room taxes and made the required tourism to non-tourism spending ratio retroactive to 2002.
HB 2267-- Introduced. Moreover, the bill would have required new and increased transient tax
dollars to be spent completely for tourist related purposes. HB 2267-- Introduced sec. 11(5)(a)-
(b). Local governments were strongly opposed to this version of the bill and actively lobbied the
legislature to achieve greater flexibility. These lobbying efforts were successful and resulted in
several changes.
During committee hearings, approximately twenty different amendments were proposed to the
bill. Two amendments bear directly on the conclusion that the road is a "tourist-related facility."
In early drafts of the bill, the catchall or "other real property" provision of the "tourist-related
facility" definition was significantly narrower than the final version. Initially, the definition
required that the facility have as its "primary" purpose the accommodation of tourist activities.
HB 2267-13. The "dash 14" amendments deleted the term "primary" and replaced it with the
term "substantial." See, Memo to House Revenue Committee Members from Rep. Lane
Shetterly, dated July 23, 2003. Testimony at the July 23, 2003 Revenue Committee Work
Transient Lodging Tax Historical Background
July 28, 2008
Page 10 of 10
Session indicated that the purpose of this change was to broaden the scope of the definition
and to give government greater flexibility in its ability to spend transient room tax funds.
Moreover, another early version of the definition of "tourist-related facility" would have expressly
excluded "roads, other transportation facilities, sewers or sewer plants" from the definition. HB
2267-14. That exclusion was dropped from the bill. See, Proceedings of House Revenue
Committee, August 12, 2003 Work Session, Comments of Chair Shetterly (Tape Counter 031).
A member of the Revenue Committee indicated that the legislative intent behind the
amendment was to further broaden the definition of "tourist-related facility." Moreover, the
legislator indicated that it was the overall intent that "tourist-related facility" definition should be
interpreted very broadly. Proceedings of House Revenue Committee, August 12, 2003, Work
Session, Statement of Rep. Barnhart. (Tape Counter 068). The deliberate removal of a
sentence which would have excluded roads from the definition of tourist-related facility is
indicative that, in the proper circumstances, a road is a tourist-related facility. Fifth Ave. Corp. v.
Washington Co., 282 Or 591, 597-98, 581 P2d 50 (1978) (in amending statute, material change
in wording is presumed to intend change in meaning).
The road from Sunriver to Bachelor has a substantial purpose of accommodating comfortable,
safe, efficient travel between two of the county's major tourist destinations. Much of the traffic
on that road is from tourists. In light of the plain text of ORS 320.300(9) and the considerable
legislative history indicating that roads, parks, railroad stations, sewers, and other transportation
facilities are, in the right circumstances, "tourist-related facilities," the county's "tourist dedicated"
transient room tax dollars may lawfully be spent on maintaining that road.
In conclusion, there are no any problems with the manner in which the county currently spends
its transient room tax dollars. The county is required to spend one-third of these revenues to
fund "tourism promotion or tourist-related facilities" and it does so. If the county were to
increase the tax, the new funds must be spent in a 70/30 ratio in favor of tourism promotion or
tourist-related facilities. While the county may not use the tourism dedicated transient room tax
dollars for general road maintenance, the River Summit Drive is an exception to the general
rule. Given the substantial tourism-related use of the road and the obvious way it facilitates
travel to and from two of the county's major tourist destinations, it is a "tourist-related facility"
within the meaning of Oregon law.
VI. Conclusion
In conclusion, the county's TLT program complies with state law. The transfer of the Welcome
Center to the state in 2002 does not adversely affect the TLT program. Provided that the county
continues to spend one-third of its TLT dollars on "tourism promotion" or to fund "tourist-related
facilities," including maintenance of River Summit Drive the county will be in compliance with the
law.
SG/ah
cc: arty Wynne
Xave Inbody
I
DESCHUTES COUNTY LEGAL COUNSEL
MARK P. AMBERG W EA. 4645
Deputy Legal Counsel
CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION - NOT TO BE DISCLOSED
TO: Mike Daly DATE: July 7, 2006
RE: Use of Room Tax Revenues For Maintenance of Forest Road 40/45
Mike:
You asked me to look into the possibility of using room tax revenues in the future for
maintenance of Forest Road 40/45, the road that provides access from the Sunriver area to Mt.
Bachelor.
ORS 320.300, et seq. governs the collection and use of local transient lodging taxes. There are
three basic subsections of ORS 300.350 that govern the use of room tax revenues collected by
the County. These subsections provide:
(3) A unit of local government that imposed a local transient lodging tax on July 1, 2003,
may not decrease the percentage of total local transient lodging tax revenues that are
actually expended to fund tourism promotion or tourism-related facilities on or after July
2, 2003.
(5) Subsections (1) and (2) of this section do not apply to a new or increased local
transient lodging tax if all of the net revenue from the new or increased tax, following
reductions attributed to collection reimbursement charges, is used consistently with
subsection (6) of this section to:
(a) Fund tourism promotion or tourism-related facilities;
(b) Fund city or county services; or
(c) Finance or refinance debt of tourism-related facilities and pay reasonable
administrative costs incurred in financing or refinancing that debt
(6) At least 70 percent of net revenue from a new or increased local transient lodging tax
shall be used for the purposes described in subsection (5) (a) or (c) of this section. No
more than 30 percent of net revenue from a new or increased local transient lodging tax
may be used for the purpose described in subsection (5) (b) of this section.
\J
C
U
N
7
V
cl
N
c~
O
_m
E
N
L
O
U
c
f0
c
c v
r6 C
~ C.
(0
C
c
Q
C E
C
O
Q
9
E
O
U-
N
Z
fu
0
0'
000000000
V- 10 O O Cr N
ONr,clCj
OLN fd d Ql
CCD, l0 f- t0 N
00 Ln ~ ~ tfl' N~Pr Nib V} 4{}
Ol O1 -i I~ n m V' O~ I*
lO m -i m m m w o m
m I-q _q _q
W
V)
Q)
P
cu v
N Z
O 12 o n i
Y Y Y N
-i a 0
a 41 vui ~ Q1
4 Y
vui U~O u-~
U Y O N Y
O J U O W LL O N
~n u O O +1 U
cn ro ro c rp can N
u 4, m 75 O U w"
¢Ucnza - E <u~
v
c
L J C - C C C
~ U C D C C C~ C
U 4' O O O O 0 O
L mu
E ~UUU a1U
~ -a c -a -a 'v Q1v
c°nYwUwwwmw
O E
C3 cl~
tn2~
>~m N
M (6
m m OU m= L a u O
_ C !n a-+
V) Ln a) a) mn
LL LL 2=mom
Ln
-0 O
+0',c 'WO - E m c c v
O to u i
(V :3 Q) fu -,~e c O D U
0) u 0 i >C 41
" fu O j 0 O Lc
m U U E a s cn cn F-
%D
N
O
H
O
CD
N
r
i.~
N
O
U
v
c
m
c
B
c
f
m
7
c
c
Q
41
H
Document Reproduces Poorly
(Archived)
Document Reproduces Poorly
(Archived)
AIR
p Tt
i
s' .
- Y r
F 4
R '
Map,
,~x~ 1''-,••,-a `r ~ ~ *1~.7,..'~ j,',~y, z _ 41-+`3' Y r.
s r '
y
"LZ
' _ iw k
"V=W' wqm
i
z4
.
p
_
6 PEI
•
LU
:~Il C:.
LL
•
PC
Li
u
Y^/
m
w
r
al,
i
„~C Y
Jv
a
Zt_
•
4Y
~_t
s
M
i i
f '
,
I~
1 ,
,
I I
,
,
I ,
0 2
a^ t
t
I I
I4
_ p f
4
1
----------a SIMS6q-
------CIV02131dnlbd
Z
uJ V
Z n
Z
"o
LL- ~
O
~
4
q l Uy U
m. S
6
I
SIMS ~
U
U-
1
,
.1 1
PROJECT BUDGET
Deschutes Mental Health Buildin : South Site
Date: 8.06.08
Project Square Footage 7,000
Site 28,000
SDFTCOSTS
EstimRte
Comments
_
A/E Fees Estimate (including consultants)
$70,000.00
Reimbursable expenses
$7,000
Other Consultants not provided by A/E _
Geo-Tech:
n/a
Survey
$5,000
_ Septic
n/a
Permits: Septic Approval
n/a
Site Plan review
$7,276
Plan Check Fee
$6,992
Building Permits _
$10,757
ystem Development Charges (SDCs)
7,995
Water $4,449,
Sewer $2,800,
transportation $746
Other Permits
n/a
Construction Testing (soil compaction/fill compaction)
$3,000
Legal Fees
n/a
Accounting Fees
n/a
Owners Insurance
We
Soft Cost Contingency 10%
$4,802
TOTAL SOFT COSTS
$122,332
FIAt:O COSTS
Building $200
$1,400,000
Site Improvements
n/a
Off Site Construction
345 lin. ft. of curb $11 fin. ft.
$3,795
1,725 sq ft. of sidewalk @ $4.00 sq. ft.
$6,900
Construction Contingency (5%)
$70,000
TOTAL HARD COSTS
$1,46 695
OTHFR COsrs
Site Acquisition
Land Costs
n/a
Demolition
Title Insurance
n/a
_
Real estate fees
We
Zoning Approval
n/a
Legal Fees
Taxes
n/a
Appraisal
n/a
Other
n/a
Loan Fees _
Interim Financing Cost
n/a
Interim Financing Interest (Estimate)
n/a
Furniture, Fixtures & Equipment (FFE) $10 sf
$70,000
TOTAL OTHER COSTS
$70,000
TOTAL PROJECT
$1,673,517
1 t
~ i
l-"
I ~ ~ 4
S
1
I ~ f
3 J
Boom,
r\
lam`
;
W
N
'
~ = m
Iy
,
I
,
I i 1"_~
1
1
4
~ 411
f
i {
f
s
1
I
f
1
f
i
f1 f
1 .
i f
f 1 f~ ~1 _
t
1
i
1
\ 1
1
.ii
1
I
E
I.!
i
.w
cn
;w
a
PROJECT BUDGET
Deschutes Mental Health Buildin : North Site
Date: 8.06.08
Project Square Footage 7,000
Site 39,798
SOFT COSTS
Estima
Comments
A/E Fees Estimate (including consultants)
$70,000.00
Reimbursable expenses
$7,000
Other Consultants not provided by A/E
Geo-Tech:
$5,000
Survey
$5,000
Septic
n/a
Permits: Septic Approval
n/a
Site Plan review
$7,47
Plan Check Fee
$6,992
Building Permits
$10,757
ystem Development Charges (SDCs)
7,995
Water $4,449,
Sewer $2,800,
transportation $746
Other Permits
n/a
Construction Testing (soil compaction/fill compaction)
$3,000
Legal Fees
n/a
Accounting Fees
n/a
Owners Insurance
n/a
Soft Cost Contingency 10%
$5,302
TOTAL SOFT COSTS
$128,322
HARD, C(-)S 1S
Building $200
$1,400,000
Site Improvements
Rock Removal 5399.5 cubic yards @ $45.00 a cubic yard
$242,978
Water Ditch 330 lin. ft. of site $60 In. ft.
$19,800
Off Site Construction
n/a
Construction Contingency (5%)
$83,139
TOTAL HARD COSTS
$1,745,916
OTHER COSTS
Site Acquisition
Land Costs
n/a
Demolition
Title Insurance
n/a
Real estate fees
n/a
Zoning Approval
n/a
Legal Fees
Taxes
n/a
Appraisal
n/a
Other
n/a
Loan Fees
Interim Financing Cost
We
Interim Financing Interest (Estimate)
n/a
Furniture, Fixtures & Equipment (FFE) $10 sf
$70,000
TOTAL OTHER COSTS
$70,000
TOTAL PROJECT
$1,944,238