2009-1488-Minutes for Meeting September 28,2009 Recorded 10/19/2009COUNTY
NANCYUBLANKENSHIP,FCOUNTY CLERKDS CJ 2409.1488
COMMISSIONERS' JOURNAL 1011912009 09;08;41 AM
111111111111111111111111111111
2 09-1Do not remove this page from original document.
Deschutes County Clerk
Certificate Page
If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
previously recorded in Book
or as Fee Number
and Page
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orc
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, SEPTEMBER 28, 2009
Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger.
Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy
County Administrator; Tom Anderson, Nick Lelack, George Read and Peter
Gutowsky, Community Development; Mark Pilliod, Legal Counsel; Keith Cyrus,
Chair of the Planning Commission; and five other citizens.
Vice Chair Luke opened the meeting at 1:30 p.m.
1. Discussion of Senate Environment and Natural Resources Hearing
(Scheduled for September 30) - Destination Resorts.
Nick Lelack explained that the County has ten minutes to present information to
the Committee on September 30, and two people from the County will speak:
Nick Lelack and Commissioner Luke; as well as Tom Luersen, representing the
resort industry.
Commissioner Luke said that to reach the public, hearings should be held
locally. It does not help to have these hearings in Salem.
Commissioner Unger stated that the destination resort laws were created to help
the industry to develop for economic purposes. Since then, things have
changed and other issues should be considered, including potential negative
impacts of traffic, water use and others. The laws are fundamentally sound, but
perhaps should allow for individuals and governments to express their ideas and
concerns.
Commissioner Luke indicated that with the high cost of developing destination
resorts, and the time it takes to get to that point, he does not seem many more
being pursued. The process was changed in the mid-1990's, making control
more local, and he does not want to see local areas lose that control or input.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 1 of 10 Pages
Nick Lelack stated that perhaps there is a way to not indicate certain dollar
amounts, but to look at the concept instead and perhaps develop different types
of resorts to meet certain standards. However, without permanent housing and
golfing, and the revenue generated from those, it would be challenging for
resorts to be profitable.
The Commissioners invited Keith Cyrus, Chair of the Planning Commission, to
comment. He said that it has become very difficult for this industry to develop
and local flexibility would be helpful. Transportation impacts are a big issue to
a lot of people. However, there is a tremendous financial impact that has
helped to replace the lost revenue from the timber industry.
Commissioner Luke noted that he could not see the State stepping in to limit the
number of high tech campuses in the I-5 corridor, and they have no business
telling Deschutes County how to handle its industry, which includes destination
resorts.
Commissioner Unger said that Thornburgh Resort has been a sore issue for
some people, some of which has been misunderstood. More dialogue is needed
to clarify what is real and what is not.
Chair Baney joined the meeting at this time.
Dave Kanner asked what order the conversation would follow. Commissioner
Luke said that perhaps he should speak first, Nick Lelack could next, and Tom
Luersen would speak last. He was invited since Sunriver is a resort with a lot of
history.
Chair Baney expressed concern about the conversation being confrontational.
Commissioner Luke said that he has testified before this type of Committee
previously and knows what to say and how to say it. Mr. Cyrus added that the
value of resorts needs to be stressed. Commissioner Luke said that the County
already has to consider the impacts on wildlife, traffic and wildlife, so he
wonders what they are trying to fix.
Chair Baney would like more cooperation between counties when one county
wants to place a resort that will impact another county. At this time
consideration of these types of impacts on neighboring counties and
communities is considered voluntary.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 2 of 10 Pages
2. Discussion of Legislative Priorities for Special Session.
Dave Kanner said the legal lot of record issue - federal transfer of property - is
something that might be addressed. Commissioner Luke added that if 1,000
Friends and Central Oregon Landwatch could reach consensus with the County
to address concerns, that would be helpful. AOC would support that.
There could be some vetoes in place to override the Governor. However, the
legislature will have their hands full with the budget. They will have a limited
amount of time. Chair Baney said it is hard to know which direction they will
go. Commissioner Unger wants to be prepared in any case.
Commissioner Luke said that any cuts to budgets for law enforcement, schools
and health could be catastrophic. AOC has received the information on lot of
record issues.
Nick Lelack stated that the cities feel that transfers to them are not as
complicated since they subdivide it. The lots are established at that point. The
review process is the complicated piece. DLCD, John Jinnings, said that
originally DLCD would be in charge, but since then they had decided that they
would not handle this. Mr. Kanner pointed out that it will be tough to get
anything passed. If something requires financing, it has to be shown how that
will happen.
3. Update Commissioners' Meetings and Schedules.
Commissioner Luke asked how the Assessor is answering questions about how
their taxes went up on their property but the value went down.
Judith Ure said that an energy efficiency grant program application was not
approved (software for Community Development). Tom Anderson said that
there are alternative ideas, one of which is using building department staff to
advise on energy code and improvements. It is likely this would be for
remodels and smaller scale projects. Ms. Ure said this is an eligible program.
The deliverable would be the number of energy codes that are enforced, which
is measurable. There is a job component. They do not necessarily have to
show how much savings might be realized. It will not add code but will count
what is currently being captured.
Erik Kropp said there are other things that could be done with these funds as
well, such as upgrading lighting fixtures and other energy savings activity.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 3 of 10 Pages
4. Other Items.
There was a request before the Board regarding an appeal application. She
asked that if an appeal went to the Board, whether there is an additional fee.
Mr. Pilliod stated that for all applications for common law vested decisions, the
Hearings Officer's decision was to be final for Deschutes County; however, the
Board has the ability to review any of these if it calls it up on its own.
Therefore, there would be no fee.
Commissioner Luke said that CEC got a vested right and wants this heard by
the Board. Chair Baney noted that they have been requested by another
attorney to not hear this. Apparently the Board is being asked to clarify certain
information. Commissioner Luke stated that there are few of these cases out
there. Mr. Pilliod said that he does not know how many were expedited at the
State level from Deschutes County; the ones that involve the County consider
more than three individual lots, and he believes there were approximately seven
totals of these. A few are still in process with the Hearings Officer, and a few
others are at the court level or in appeal.
Mr. Pilliod noted that by December 31 these applicants either have to go under
Measure 49 or vested rights will need to be pursued; however, this is unclear.
This particular case is different in many ways.
Chair Baney feels that there is a process in place and if there is a request for
following this process, it should be done locally in this fashion. Commissioner
Luke said that no matter which way the County rules, it will probably go to a
higher court. It may make a difference at LUBA if there is a Board decision
and not just a Hearings Officer's decision. Mr. Pilliod said that in the land use
context, a decision of the governing body is entitled to deference. There is no
similar law for ruling from court that is known in the Measure 49 context, so
the Board's decision may not be entitled to any more deference than the
Hearings Officer's decision.
Commissioner Luke stated that unlike a land use decision that may be appealed
to the Board, which are decided on the law and previous decision, this is in his
view this is a new area and it is hard to know what to base a decision on. Mr.
Pilliod said there is no precedence and the appeal of Measure 37 and
replacement with Measure 49 has complicated things, as have a handful of
appellant decisions.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 4 of 10 Pages
There are many questions on how these fit together, and not a lot of hopeful
interpretations on how Measure 49 should be applied. They have to rely on the
language of Measure 49, no matter how vague. That is the governing law to be
applied in this context. The CEC property interest depends on certain
easements that are in place, and a lot of properties are affected by these
easements. This relatively new law has not had the benefit of a lot of court
decisions.
Commissioner Unger asked why the Board decided not to hear and is
considering it now. Chair Baney said an attorney representing a lot of Measure
49 cases said that his clients preferred that the Board not hear these and have
them go directly to the State. He felt this would save his clients some money,
and the Board was still free to call up a case if it so wished.
Commissioner Luke stated that there was a charge for his clients to request an
appeal, and the cases are very technical. It was felt that they could get to court
quicker and save the clients money.
Commissioner Unger asked what the advantages and disadvantages of hearing
these would be. Chair Baney stated that she feels the Board is obligated to hear
it, even though it may be appealed. Mr. Pilliod said that CEC applied for the
Measure 49 claim but they are not the one wanting to have it heard by the
Board.
Commissioner Unger noted that there may be steps to take before the Board
would hear it. He thought that perhaps more information could be generated
that would help with a decision later. Commissioner Luke said that in a typical
land use case, more deference is given to a Board decision. However, this does
not go to LUBA but to Circuit Court, who does not care whose decision it was.
He is confused as to what the Board would base a decision upon. This is very
technical.
Mr. Pilliod said that the holder of the easement, CEC is being accused of
cutting corners and not proceeding in good faith. The Hearings Officer found
that they qualify, however. The standard for common law vesting is used as a
barometer or measure to determine where the parties lie. There are a lot of
nuances to consider.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 5 of 10 Pages
Commissioner Unger said that he is uncomfortable changing the direction of the
vote and hearing it. He does not feel there has been enough discussion or
understanding. These usually go to LUBA. He is open but does not know what
the Commissioners' decision could add.
Commissioner Luke would not want to open this up to all new evidence.
Commissioner Unger stated that if they hear one, perhaps they should hear the
others as well.
BANEY: Move that the Board hear this.
UNGER: Second. More discussion.
Mr. Unger said that he would still like to be clear on the rationale of the way the
Board should hear this. The Board would apply the law on these, but it is a
broad thing to say. The issue or reason at hand for it to come before the Board
at this time is unclear. Chair Baney said that they could end up with the same
decision as the Hearings Officer. But the Board could review the same
material. It is a risk of time, but it is not clear what is going to be considered at
this point. The main crux is interpreting the vesting, a significant departure
from Board decisions in the past.
Commissioner Luke said that the Board has not made any Measure 49
decisions. Chair Baney said they claim significant departure from policy under
Measure 37, but those specific issues are unknown. Commissioner Luke said
that this one will not make a difference, the standards are not well defined in the
law, and having the Board hear this will not make a difference or carry any
additional weight than the Hearings Officer's decision does. The Court does
not consider this.
Mr. Pilliod said the Order of the Board is to be the final decision of the County.
Chair Baney said that most issues get appealed. She wanted to know whether a
Circuit Court Judge would consider the Board's decision with merit, more than
would be considered if it were the Hearings Officer's decision. Mr. Pilliod
stated that the Board's decision would take precedence. Commissioner Luke
said the Hearings Officer's decision will be a part of the record and will be
considered as well.
Mr. Pilliod said that the decision of the County would no longer be that of the
Hearings Officer. The decision of the Board would not necessarily be given
more deference than that of the Hearings Officer's, however, in this case, since
it is not a land use case. Neither the Courts nor the Legislature have announced
such a rule.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 6 of 10 Pages
Commissioner Luke said that in land use issues, the Board has a little wiggle
room in its interpretation. This is based on common law, with the Board
interpreting the law, but not being attorneys. Mr. Pilliod said it would require
considerable background information on the origin of common law vested
rights, and this itself is inconsistent in the law. The bottom line is the amount
of investment before Measure 49 went into effect. It is not a subjective
determination but is based on a variety of facts. One of the issues would be
how much money has been invested versus the total cost of the project. This
shows the commitment. Whether it was made in good faith is unclear. Some
people operate through a third party, with someone else's funds at risk. Perhaps
this was done in good faith, but maybe not.
Commissioner Luke said that when the applications were filed, the land and
infrastructure was worth a lot more than it is today. The idea of which dollars
to consider is unclear. Mr. Pilliod said that the housing market and the likely
return, from when it should be measured and so on, are not defined. There is
not a way to accurately estimate the cost of rebuilding a power line.
Commissioner Unger stated that CEC did not follow all of the procedures
through this process; they did not make application when they should have. He
asked if this changes the way this has been handled. Mr. Pilliod said that he
does not have a grasp of the variety of facts in this issue. The Hearings Officer
would have had to address this in her decision if it was an issue. The County
does not do building permits for power lines; it is regulated federally. There is
interplay between State, Federal and local rules. Is it a land use permit or
building permit? Measure 37 was meant to cut through land use regulations and
was not considered a land use process. This is a crossroads between Measure
37 and Measure 49, as a substitute, provided. People can apply to the State for
some things but no others.
Of some concern is that both requests for the Board to take this matter up assert
that the County has no process and needs to adopt an Ordinance to hear
Measure 49 cases. This would be a land use law defining the process. When
Measure 49 took affect, there was the question as to what provisions could be
used in the existing Code to hear these. There was no declaratory ruling for
Measure 49 as this was not for land use. There is an assertion that a new,
unique process be adopted that would define how Measure 49 cases would be
heard. The question is whether this process is desired or necessary.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 7 of 10 Pages
Commissioner Luke said that land use laws are not clear, but there certainly is
not enough direction to determine whether someone has a vested right. He does
not feel it is worth staff's time to hear these when it is so unclear.
Commissioner Unger agreed, but is frustrated that the power company moved
forward with improvements before the issue was even settled. There should
have been a process under Measure 37 before they did this. There should be
another point of law that addresses what their authority was to do this. If that
was the case, would this even before the Board now. Is there compensation that
needs to be considered because of their actions?
Mr. Pilliod said these issues will still end up at a review court regardless.
Commissioner Luke asked if what is before the Circuit Court can be considered
by the Board, or is the Board to consider only whether the investment was
adequate. He wondered if any Code enforcement issue is to be considered or if
it is relevant. Mr. Pilliod replied that the standards are flexible, and if there is a
Code violation assertion, the Board has to determine if it is relevant and what
weight to give it. It may have no bearing on the value of the improvement.
Commissioner Unger said the question being asked is whether there is a
common vested right under Measure 49. If they have an easement on property
to do this, to carry power to other places. Mr. Pilliod said there are two lines,
both of which are trunk lines, and the upgrade enabled them to carry more
power to other areas. How to characterize what was there before is not that
simple. It was carrying full power, this just increased capacity.
Commissioner Unger stated that he may be predisposing himself. He asked to
speak with Legal Counsel for a few minutes.
The group recessed for about ten minutes.
Chair Baney said that she had a brief discussion with Legal Counsel. She asked
to allow a minute for the parties' legal counsel to speak as to why they think the
Board should hear this.
Martin Hansen and Mike McGann stated that there re only two issues pending.
Common law easements and common law vested rights. A week ago, Judge
Tiktin was already hearing a case and is ruling on it. Normally the
Commissioners deal with land use and ordinances. There are 57 claims with
different arguments, and the Board could end up having to hear all of them.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 8 of 10 Pages
There was no ruling made that CEC acted improperly without getting permits.
This has always been transmission lines. The Board can do this if they want but
it might take a lot of time and effort just for this one. Some of these issues have
been in court for a long time. It will go to the Court of Appeals regardless.
This is not a typical land use situation. It is not under land use guidelines and is
really off the track as to what the Commissioners would normally do. There is
no such thing as a summary judgment on common law. If it was Measure 37, it
would be closer to something the Board would review, but Measure 49 is
different altogether.
Matt Cyrus stated that the importance of a Board decision was not known until
the Board decided to have them go directly to the State. Under a writ of review,
the Judge cannot make a decision that the Board's decision was incorrect.
Therefore, this tied the Judge's hands. Because of the inconsistencies in the
Hearings Officer's decision, they would like a decision of the Board, which will
tie the hands of the Judge or any decision maker after that. He feels the
Hearings Officer was incorrect in that it would be impossible to conclude
CEO's rights.
Mr. Pilliod said that this decision was not concurrent with the others on the
panel; it was this judge's opinion only. Mr. Cyrus said there are other issues of
good faith and things that were done ahead of time when they should not have
been. It will take several days even if it is limited to what is in the record.
Commissioner Luke asked if he disagrees that these are not before Judge Tiktin
now. Mr. Cyrus said there is a trespass case at this time, and the issues are
similar. Some overlap, some do not. Mr. Pilliod stated that both appellants,
Trail Crossing and Cyrus, want this to be heard de novo. While it is true the
Board could limit it to the record, both appellants want it open to new evidence
as long as it is reasonably related.
Commissioner Unger said that he sympathizes with this situation and is
uncomfortable with the inability to have to decide on this with limited
information. He is in favor of saying that this train has left the station, is in the
Tiktin station and the Board should back away from it. If there was more time
to learn more, it might have made a difference.
Commissioner Luke stated that some were remanded back to the County and
there is a chance of remand on this one as well, from Judge Tiktin. Land use is
tough enough without having to interpret common law vesting.
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 9 of 10 Pages
Chair Baney disagreed, and felt that it is the Board's responsibility to hear this.
VOTE: LUKE: No.
UNGER: No.
BANEY: Chair votes yes. (Split vote)
Being no further items addressed, the meeting adjourned at 3:45 p.m.
DATED this 28th Day of September 2009 for the Deschutes County
Board of Commissioners.
ATTEST:
al~)
Tammy Baney, Chair
,z- ~ 4:~~
Dennis R. Luke, Vice air
0)-avu u4t
Alan Unger, Commissioner
Recording Secretary
Minutes of Board of Commissioners' Work Session Monday, September 28, 2009
Page 10 of 10 Pages
i
0
%A
N
~
s
I
l\
~
C
~j
1
~1
c.
N
v 1
N
c
1
Q)
4
O
~
Q)
Q)
a
Ilk.
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., MONDAY, SEPTEMBER 28, 2009
1. Discussion of Senate Environment and Natural Resources Hearing (Sept. 30) -
Destination Resorts - Peter Gutowsky & Nick Lelack
2. Discussion of Legislative Priorities for Special Session
3. Update Commissioners' Meetings and Schedules
4. Other Items
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.
~Community Development Department
n ' d Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX(541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Peter Gutowsky, Principal Planner
DATE: September 22, 2009
SUBJECT: Senate Environment and Natural Resources Hearing / Destination Resort
Discussion
MEETING: September 28, 2009
Deschutes County has been invited to participate on September 30 at an Interim Legislative
Hearing with the Senate Environment and Natural Resources Committee (Committee) to
discuss destination resorts. The hearing will take place in Salem from 2:30 to 4:00 p.m.
According to Beth Patrino, a Committee Administrator, Oregon State Senator Jackie Dingfelder
plans to introduce legislation in the 2010 session about the siting of destination resorts. She
chairs the Committee, which is interested at this hearing in learning about destination resorts
from the local perspective. Specifically, they are interested about Deschutes County's current
remapping project, and how legislation may impact this and future efforts to map and site
destination resorts.
Deschutes County's presentation is limited to just 10 minutes so arrangements are being made
to participate through video conferencing. Given the time constraints, the County is structuring
its testimony around three people, who will emphasize the following:
A County Commissioner will discuss the importance of local control;
Nick Lelack, Planning Director will outline the technical aspects of Deschutes County's
Destination Resort map and the forthcoming map amendment process; and,
A Resort representative will share opinions on the community benefits derived from
destination resorts.
Deschutes County Destination Resort Remapping Project
The following viewpoints can be shared to the Committee on September 30:
Statewide, eight counties have adopted resort mapping and ordinances: Deschutes,
Douglas, Crook, Klamath, Jefferson, Jackson, Josephine, and Tillamook.
2. Deschutes County was one of the first counties to adopt a destination resort map in
1992. Today, there are four Goal 8 destination resorts in the county: Eagle Crest,
Pronghorn, Tetherow and Caldera Springs. Another resort, Thornburg, received
Quality Services Performed with Pride
conceptual master plan approval from the county in 2006, however it is currently under
appeal.
3. In 1992, the County supplemented the state's destination resort criteria by excluding
certain large agricultural and forest parcels, and resource lands within one mile of a
UGB. If a property was not excluded from the map by state or county criteria, it was
automatically designated on Deschutes County's Destination Resort overlay map.
4. There are 112,448 acres in Deschutes County mapped for destination resorts.
Approximately 85% of mapped lands are unsuitable for resort development because
they are irreversibly committed to platted subdivisions, rural residential development or
small lots.
5. County staff are now proposing new destination resort goals and policies as well as new
procedures that will explain how to add and remove land from its resort map so that it
accurately reflects where resorts can be located. A public hearing is scheduled for
November 19. New ineligibility criteria will target:
Properties less than 160 acres;
Areas of Critical State Concern;
Sites that are inventoried Goal 5 resources the County has chosen to protect;
Lands zoned Open Space and Conservation (OS&C);
Lands zoned Forest Use 1 (F-1);
Certain Irrigated lands;
Farm or forest land within one mile outside of urban growth boundaries;
Lands designated Urban Reserve Area under ORS 195.145; and
Platted subdivisions
6. Legislative amendments to Deschutes County's Destination Resort map will be initiated
in February. Properties currently mapped that do not meet the new rules will be
proposed for removal. County staff will initiate the "un-mapping" amendments. If
requested by property owners, lands that meet the new rules will be proposed for the
Destination Resort map. Public hearings will be held in Spring 2010, with adoption
anticipated for June 2010. Once adopted, the destination resort map will only include
properties that meet the new rules.
O
a
a~
o
CL U
C
U
E
m
U
0
0
W
C+ C c V W 00
"c t L bom O
(A 0
CL Rt (A c E c v .5 tt~ Q
E Q~ O C H E E a d d Q(A
00 ce -0 CL U = 7 . E O Z~ N ~ Q O 3
cd OC . O , N a c o ce Z (~~c
O E V V N 0 M i a~~ tL
0 A. c > ~ ~ OO w
40
U' •41 GL 1i O O O L W O 6 F-N Om=' ~ oNC J W
-0 O v 'ri O
0 i s ~no~a` rn~ 9 E u
Z~ a au . 3 3 zz=u 8~ 2
CL
co
41
= i
0 G
V
C9
3 .0
s~
0 ~
r9i
0
3
c
E
s
E
~
O
N
~
C
d
C 'O
E
a
a
L
o
f
~
N
,
•
E
3
V1
~
c
~
u
M
~
c
~
Xa>
O
~
~
O
u
,
0
"
O
d
c'
7
U
dS E
i
ma
s
C
L
•i3
y
~
c 1d
c
E
v
oq
y
c
cEa
v
~
v
~
w
a
c
o
~
o
o
o
o
a
L
O
vi
L
C
O
C
V,
d
v
1
w
v
d
CL
E
N
L
cc
•
v
E
f9
V
w
c
v
0
E
v,
O
a,
t
E
C
v
L
d
L
a
2
E
Q
c
E
v
1ti.
V
a
0
i
L
0
v
V
v
0
c
V
C
Z,
'C L
~ C
o~
U a
U E
0
0
u C
a~
O
C
EL
d
d ~
M r
~i o
6n y
v c b a
n co ,CO
a 62 ~
v
N
L
Q
~
~
N
~
b
N C
~
~
bQ ~
p
iL
v
fa D
p
O.
y
:2
~ 0
0 u
a~'
c
O
i
s
Z
d ao
c
d
w
w
o c
3
4,
!L
S
N
,
p
M
CA
14
U
1.
p
O
c
N
c
m
0
y
a N
L
o c
U
E
o
W
t
0
O
p
to
3
•
w
L
A
C
y
.D
C
7
4,
4j
(U 41
41
1-
0
4)
Z
-
o
w
of C
p
4-- v. vi
L
o
f
t
, e~
ro
W
;
O
Z
C
°
d
IL
E
y
2
E t+i N
~
O
w
~
0
O
~
t
.
N
44
.
0)
u
p
3
°
G
d
U
-
u
4)
H v
' d
c
y
ao,
°
c
g
a
O
J
O
U
'
+
,
o
o
c
oG
L
o
as.+
c
o
to
L aci
O
•q
c
_
c
c
v
o
H
.
M
N
O
.
O
_r_
H
E
4)
C
.J
'D
J
IL
v
H
N
•'A
1
L
9
E
4
N
4
L
L O'
4)
L
P U Q
13
:
N
M
t
a+
O•
v „
N E
O C
3
4)
u CO
c
v
0 aLi 0
d ~ d
N
u 3
a 4J
S_ Z
c
d
Y m
°o
` M
41
b4
c U
L O
0
X u O
41
v L
F- V) v
3 o
m E Q
8 a, U a
R t c b
LA a u to
E U
G ui
Z i u CA
41 O 0 0
Ct a L.
C v .a O Ln .C
U E U c - E
' LO ° Q N = O
x 'c Z U Z
d cn c c
(U y o. O s £ u
o ° c E u
41 CL
co Q J d Q Z to
• • • a
N C = „ Ql
L: O L
-6 E u 0
cL ' E C y a H d1o u
a .c E l, E
u c cn
to " y" E
ca 'c O
L o
O 41 E N C H „ L
c ~ > M- LL d
w at:
C c .3 vv E 3 s C c E
w
:3 00 4 va p Q to p L •,u,
v*j a E c N
n O I o o d p; L
-0 Q
v E c° -0 w
s n
C (u 41 (D co
u 4,
d) 'O Ql .C E d r.+ toil
r O'. b0 a) W S O 41 47 Y N
Q. N .0 t I". LL C _.A .C a
L
z
49 a E
0
a
c
4)
u
n
`N
Q
v
E
li
7
O
L
O
U
O
IA
7
c
o
Lp
Z
Z
O
v
J
E
s
v~
s
Z
a
"
00
rn
u
O
H
C
.
er
v
O
V
~
'
3
0
Rf
.
41O
C
C
4)
d
Q
L
U.
5
O
V
4) IA +1 C 3 O s s y 41 O s s i° 4- c y O r
N
C, 0
'd 0 'o
.~p 4) "a c cc
dl d A C •L- Q• v 4) R^1 m to C A N. _:5 0. y to w -0 (U > C
C m m c i 0 aLi aii W E _ E. c > 0 > o u
Z iv L. v y 3 L O O L N N E aJ O 3 m
p a ri n u„ O Td y=
td d y p Z H L Q L O U 'o
t L „ 7 L N' u 41 U b4 c 4) O .0 p' „ to c
W 4+ a n v c b0 .0 c L o c' o w L d a~ d 41 c
o h o E 0
w V E
41 0 ` 0 3 z > s = L o 'o o N o -vo
U ° o
a.
LU 41 C 0- G 0 o .c ° u c Z ° u c q> 3 " 0
G
a t d of N by Z c n c O v p N
Z ° p Q b a v H =
0 41 to 1-t 4) 0 Z c o
° ° p N E 3 ~o U u w d L (j N ro n u O U
C NN W b0 e0. 'p CN „ 'N T V L 4) Y Q tv 7
Q ° t o ° o. 4L' CU ~ a 0
'A c ~c ,0 0 0 vi p w V) a) d c 41 L O C p t G N C 441 C c o C. d to 4)
IL, a co o° c o_ v o a E a' N a~i E 'd E v Ou v s
c-
IV r L_ U
y O c M O y O L p td L„ O u t1a It- 'U n o 41 S 0 v 3 u a 0 vi o s D c n u O S, U a Q n
P E T E R K I N & S C i TE S Michael W Peterkin
ATTORNEYS AT LAW Megan X. Burgess
James T Parker*
September 25, 2009 Isa A. Taylor"
Admitte in
Oregon & Waskingtan
Via Hand-Delivery ..of Counsel
Deschutes County Board of Commissioners
1300 NW Wall Street, Ste. 200
Bend, OR 97701-1925
RE: Opposition to DR-09-02 (applicant Central Electric Cooperation)
Dear Board of Commissioners:
Enclosed find the Cyruses' Notice of Appeal in the above-referenced matter. Submitted with
this appeal is the fee of $3,041 which constitutes the base fee of $2,370 plus 20% of the original
fee that was $3,355.
In the event the Commissioners decide that the Cyruses do not have a right of appeal, pursuant to
Order No. 2008-056, the Board should initiate review pursuant to DCC 22.28.050. Such review
requires an order accepting the appeal to be issued no later than Monday, September 28, 2009.
The Cyruses respectfully urge the Commissioners to take this appeal to reverse and to correct
fundamental factual and legal errors in the Hearings Officer's decision.
Very trul ours,
Ic
Michael W. Pe erkin
MWP/ch
Enclosure
c: Clients
Chris Bedsaul
Mark Pilliod
S E P 2 5X09
BOARD Of COMMISSIONERS
ADMINISTRATION
222 NW IRVING AVENUE BEND. OREGON 97701 541/389-2572 TEL 541/389-6298 FAX
T
v
tub Community Development Department
planning Division
117 NW Lafayette Avenue, Send, 7 01-1925
[541) 388-6575 - Fax (541) 385.1764
http://www desohutes.org/cdd
APPEAL APPLICATION
FEE. $3,041.00
EVERY NOTICE OF .APPEAL. SHAL.1_ INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shell also be provided.
It Is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the Items listed above. Failure to complete all of the
above may render sn appeal invaUd. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (OCC Section 22.32.010)
or whether an appeal Is valid. Appellants should seek their own legal advice concerning those issues,
~41 X1'71 y 91 ! Cc )
Appellant's Name (print): Keith and Conida Cyrus Phone. [ 41 y548-0835
Mailing Address: ] 7704 i hwa~26 Citylstatelzip:
Land Use Application Being Appealed: DR-09-02 (Hearings Officer: Karen Green
Property Description. Township 15S Range 1, Section 13.._ _ Tax Lot (s) 500, 701 and 702
Appellant's Signature:
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE. A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
7109
NOTICS OP APPEAL
(This page may be photocopied if additional spare is needed.)
7 q
BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
KEITH AND CONIDA CYRUS ) File No. DR-09-2
Appellants ) NOTICE OF APPEAL
APPELLANTS: O. Keith Cyrus and Conida Cyrus
c/o Michael W. Peterkin
PETERKIN & ASSOCIATES
222 NW Irving Avenue
Bend, OR 97701
ATTORNEY: Michael W. Peterkin, OSB #823670
Isa A. Taylor, OSB #044674
PETERKIN & ASSOCIATES
222 NW Irving Avenue
Bend, OR 97701
Appellants, Keith and Conida Cyrus, by and through their attorney submit the following Notice
of Appeal of the decision of the Deschutes County Hearings Officer dated and mailed September
16, 2009 declaring Central Electric Cooperative, Inc. ("CEC") had a common law vested right
under Measure 49 to complete, operate and maintain the entire Jordan Road Line upgrade from
the Cline Falls Substation to the Black Butte Substation. Cyrus has standing to file this appeal
because it participated in the review below by appearing at the hearing before the Deschutes
County Hearings Officer and submitting written and oral testimony in the proceedings before the
Deschutes County Hearings Officer.
I. REQUEST FOR DE NOVO REVIEW.
Pursuant to DCC 22.32.027(B)(2) and DCC 22.28.030, Appellants request de novo review of the
decision because it presents issues of significant public policy and county-wide implications for
Deschutes County as the decision is one which involves a 22 mile power line crossing numerous
public and private lands in Deschutes County including Cyrus property. The decision also
involves significant issues of importance to all Measure 37 and 49 claimants and opponents in
Deschutes County as it interprets and applies common law vesting issues, non-conforming use
provisions, and site plan review provisions in the context of Measure 49 vesting. It also
represents a significant departure from County policy and previous decisions requiring a County
land use application process subsequent to the granting of a Measure 37 claim. The County has
consistently taken the position that Measure 37 waivers did not cover procedural, health and
safety regulations and that a subsequent County land use process after a Measure 37 waiver is
necessary to address or determine the applicability of any of those regulations.
Page 1- NOTICE OF APPEAL
De novo review of this decision by the Board of Deschutes County Commissioners is necessary
to establish a reasonable interpretation of the County ordinances, Measure 37 and 49 procedures
and policies, the state statutes and the administrative rules implementing the Statewide Planning
Goals so that the citizens of Deschutes County can rely on such interpretations for future
applications. Such an interpretation cannot be adequately and fairly made by any other body as
the Board of County Commissioners is the most appropriate authority for setting policy and
interpreting the statutes, administrative rules and county ordinances as they apply to land within
Deschutes County. Further, Appellants would like the opportunity to submit additional evidence
addressing the Hearings Officer's findings which include factual errors and conclusions which
could not now be addressed before the Hearings Officer.
The issues relied upon for this appeal are set forth below. The facts in the record and those which
will be supplied at the hearing before the Board will prove that the Hearing Officer erred in
concluding the Jordan Road power line is vested under Measure 49.
II. TIME PERIOD FOR REVIEW.
The present application for a vested rights determination under Measure 49 is not subject to the
150 day deadline within which the County has to make decisions on certain land use
applications.
III. ISSUES FOR APPEAL.
Appellants raise the following issues for appeal:
1. The Hearings Officer erred in ruling that CEC has a common law vested right to
complete, operate and maintain the Jordan Road line upgrade in its entirety. (HO Decision, pg. 7)
2. The County erred in processing the vested rights determination as a Declaratory Ruling
under DCC 22.40 without adopting an ordinance or specific procedures for such pursuant to
Measure 49. (HO Decision, p. 9-11)
3. The Hearings Officer erred in concluding the County has jurisdiction to make this
Measure 49 vested rights determination through this declaratory ruling proceeding. (HO
Decision, p. l l )
4. The Hearing Officer erred in concluding the previous two waivers which were issued
before December 6, 2007 - Order No. 2006-069 and 2006-093 - were valid and timely and
thereby provide a basis for CEC's Measure 49 vested right determination for Phase I. (HO
Decision, pg. 19).
5. The Hearings Officer erred in concluding that Deschutes County Order No. 2006-093 was
valid, and in omitting from its decision that Order No. 2006-173 expressly provides that Order
No. 2006-093 was ultimately determined as "null and void" because "the proceedings which led
to the adoption of Order No 2006-093 did not include new evidence, nor did it offer interested
parties an opportunity to comment on new evidence". (HO Decision, pg. 17).
Page 2 - NOTICE OF APPEAL
6. The Hearings Officer erred to consider that CEC's unlawful construction was completed
before Order No. 2006-173, purporting to correct the invalid waivers, had been issued.
7. The Hearings Officer erred in concluding that CEC could rely on Order No.s 2006-069
and 2006-093, as they were patently invalid pursuant to Order No. 2006-173, and for other
reasons.
8. The Hearings officer erred in concluding that Order No. 2006-173 is dated after the
effective date of Measure 49. (HO Decision, pg. 19).
9. The Hearings Officer erred by failing to conclude that CEC's reconstruction of the Jordan
Road line was unlawful. The reconstruction was unlawful because it did not obtain the necessary
State waivers, or even apply for one before its unlawful construction.
10. The Hearings Officer erred in omitting from its decision (and its "good faith"
determination) that upon the Cyrus's application for a restraining order in Deschutes County
Circuit Court, CEC completed its destruction and removal of the old, shorter, wooden
transmission line poles, and completed its construction of new, taller, metal transmission line
poles, greater in number, on the Cyrus's property. On this basis alone the Hearing Officer should
have found against CEC because it did not act in "good faith".
11. The Hearings Officer erred in concluding that waivers were not need to waive application
of the EFU Zone. (HO Decision, pg. 19).
12. The Hearings Officer erred in concluding that the second waiver, issued through Order
No. 2006-093, applied to property described as including the easements granted by the Cyrus
opponents and the Trust's predecessor. (HO Decision, pg. 19).
13. The Hearings Officer erred in concluding the Measure 37 Order No. 2007-125 waived
application of the Forest Zones when neither the Order nor the attached Administrator's report
listed the Forest Zones at all. (HO Decision, p. 23).
14. The Hearings Officer erred in concluding there is nothing in the County's Measure 37
waivers for Phases I and II of the Jordan Road line upgrade that expressly states local permits or
approvals are or may be required.
15. The Hearing Officer erred in finding that the prior County decision concluding CEC had a
valid non-conforming use for the existing transmission line somehow alleviated the need for a
Measure 37 waiver for the un-permitted alteration to that use.
Page 3 - NOTICE OF APPEAL
16. The Hearings Officer erred in concluding site plan review was not required. (HO
Decision, p. 28).
17. The Hearings Officer erred in concluding the consent of the underlying fee owners was
not required. (HO Decision, p. 30).
18. The Hearings Officer erred in concluding CEC had a continuous property interest in the
real property that was the subject of the Measure 37 claims and the vested rights determination.
(HO Decision, p. 31).
19. The Hearings Officer erred in concluding CEC's property interests constitute "private real
property" under Measure 37. (HO Decision, p. 31-32).
20. The Hearings Officer erred in concluding CEC satisfied the good faith test for a vested
rights claim. (HO Decision, p. 35).
21. The Hearing Officer erred by not deciding that CEC was ineligible for Measure 37 relief
and thus Measure 49 vesting because CEC is not a private entity that is eligible for Measure 37
relief or Measure 49 vesting.
22. The Hearing Officer. erred by not deciding that CEC was ineligible for Measure 37 relief
and thus Measure 49 vesting because CEC easements do not constitute private property for
purposes of Measure 37 relief and Measure 49 vesting.
23. The Hearings Officer erred by failing to apply, or applying incorrectly, the rule that only
expenditures made lawfully and in good faith count towards vesting.
24.
inapplicable to the vesting determination.
25. The Hearings Officer erred by failing to consider CEC's bad faith actions, as explained by
Judge Tiktin in a Memorandum Opinion concerning sanctions, in the context of the good faith
vesting factor.
26. The Hearings Officer erred in concluding the expenses made by CEC between August 1,
2006 and September 2006 (Phase I) were qualified expenses for the vested rights determination.
(HO Decisions, p. 38).
27. The Hearings Officer erred in concluding the qualified expenses exceed 5% of the total
project costs. (HO Decision, pg. 40).
28. The Hearings Officer erred in concluding the Jordan Road power line cannot be separated
into independent segments for purposes of a vested rights determination.
The Hearings Officer erred by concluding that CEC's trespass on Cyrus property is
Page 4 - NOTICE OF APPEAL
. n
29. The Hearings Officer erred in her conclusion that Phase II construction was vested when
a State waiver was required but never obtained. Measure 49 requires both: 1) the use must be
consistent with a Measure 37 waiver (which is impossible absent the required State waiver);
AND 2) must constitute a lawful nonconforming use (which is impossible without valid
waivers).
30. The Hearing Officer erred by finding a valid grant of CEC's Measure 37 claim because
the land use regulations at issue in that claim were enacted in 1972, almost 30 years before CEC
obtained its property interests in the easements in 2001 and that CEC had not quitclaimed and
released the 1962 easement.
DATED: September 25, 2009.
Michael W. Peter]L, OSB #823670
Isa A. Taylor, OSB #044674
PETERKIN & ASSOCIATES
222 NW Irving Avenue
Bend, OR 97701
Page 5 - NOTICE OF APPEAL