The URL can be used to link to this page

2013-928-Minutes for Meeting April 01,2013 Recorded 5/6/2013COUNTY OFFICIAL RECO NANCYUBLANKENSHIP, COUNTY CLERKS CJ X413.978 COMMISSIONERS' JOURNAL 0510612013 10;15;41 AM II 111 1111 HE III Z N 8 Do not remove this page from original document. Deschutes County Clerk Certificate 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.or MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, APRIL 1, 2013 Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Tom Anderson, Interim County Administrator; Erik Kropp, Deputy County Administrator; Nick Lelack, Paul Blikstad and Peter Russell, Community Development; Chris Doty and George Kolb, Road Department; Laurie Craghead, County Counsel; and approximately twenty other citizens including media representative Shelby King of the Bulletin. Chair Unger opened the meeting at 1:30 p.m. 1. Discussion of Tumalo Trail Proposal. Peter Russell explained that there are various jurisdictions involved in the Deschutes River Trail project, which runs from Sunriver to Tumalo. There is a question on the Tumalo portion as to what will end up being paved, for bicycle use. They worked with the regional State office to make sure the land use was appropriate. During the grant application process, various State groups participated, and one found that there were some cultural resources on site. They found scattered tools, archeological items from centuries ago. They wanted additional surveying done, so the State provided the expertise. The idea was to stay on public roadways, so they had to come up with options. All agree that there should be connectivity between the town of Tumalo and the State Park. With this finding, they would not be able to have a paved trail, just soft surface. The State could take it over and figure out what works best for the future. The County wanted it for connectivity for bicyclists. The County will have to do a land use process and more because of the flood plain. This is a Board decision. Minutes of Board of Commissioners' Work Session Monday, April 1, 2013 Page 1 of 7 Chris Doty stated they did enough due diligence ahead of time, and this new information came in after the award. The historical folks altered the entire application process. George Kolb said that there would need to be a 15-foot wide work area to come up with the trail, but there is no place to keep equipment. Peter Russell added that they seem to be okay with doing most of it; the tie-in to town would be secondary. An existing unofficial path is in use now. They could use compacted aggregate but it would not be solid like pavement. It is complicated if you pave it. Chris Doty indicated they could end up having the project delayed if they do anything wrong. Mr. Anderson stated that the Board would have to be the one to decide if fees could be waived. Commissioner Baney said that there are active property owners in that community, and she wants it to be done right. Citizen Dick Gummas said that the neighborhoods do not seem to be aware of the proposed path. Mr. Russell indicated that everyone was advised of the hearing. He is sure there will be a pathway to downtown, but they want to work together on this. They will post the irrigation ditch `no trespassing' soon. Commissioner Baney asked if they plan to call a meeting soon to clarify this. Commissioner Unger said they could consider a fee schedule reimbursement; and offer support but not actual engagement. Mara Stein said she appreciates the discussion, and the issue of connectivity is a big one. There is support for that. They have talked about the ditch some, but few are aware of all that is going on. Confusion surrounds the water issues and irrigation. Mr. Russell stated this has to go to the State in the future due to maintenance issues and the potential of flooding. It will be part of the State system. Mr. Gummas added that they bring in groups to chip the trail, but they also cut down brush and trees and throw them in the irrigation ditch. Commissioner Unger noted that it will eventually be better than it is now. There seems to be a lack of communication between the residents, the irrigation district and State Parks. He asked Mr. Russell to look into setting up some kind of meeting of the parties. Minutes of Board of Commissioners' Work Session Monday, April 1, 2013 Page 2 of 7 2. Discussion of an Appeal of the Hearings Officer's Denial of an Application for a Cell Tower in the Alfalfa Area. This item was addressed first. Paul Blikstad referred to his previous memo, a map and photos showing the subject property. There was a hearing held on December 4, 2012; the application was denied but the decision subsequently was appealed by the applicant. The burden of proof is mostly in regard to other sites not being available or suitable. Regarding sites with less visual impact, they need to prove that there are no less than two, and are in a large enough search area for the tower. South of the site is zoned for farm use; most of the northern part is rural residential. Towers in a RR-10 zone area conditional use. In EFU, they are more of a permitted use, but they first have to show that the tower cannot be placed on non-resource land. Per the Hearings Officer, the applicant needs to increase the search area. He mentioned towers along Elk Lane and feels the applicant should have looked at those also. Also, there is a large piece of DSL land that was not fully considered. The opponents feel there may be multiple sites within that land, which consists of about 80 acres. The applicant said the subdivision would be impacted by the tower (views), so wanted it to go to EFU land. If the Hearings Officer found it could not be in the RR-10 zone, this would give the applicant a reason to apply for the use on EFU land. There are other issues to clarify, such as interpretation of Code, general use, looking at impacts on the subject property, and more; but the Hearings Officer said the impacts on the land is a concern with permitted uses, not others' enjoyment of their land, nor their use of their land. Commissioner Baney stated she wants to make sure that in the future there are good decisions to have on record, as this can affect other areas. She asked if they are able to protect a view corridor. Mr. Blikstad said the Board can give deference to this, but the Hearings Officer can't. Minutes of Board of Commissioners' Work Session Monday, April 1, 2013 Page 3 of 7 Ms. Craghead noted that the reason for the discussion is two-fold. The Board is given deference at LUBA when it interprets Code. There are several areas to tighten up if the Board chooses to uphold the Hearings Officer's decision. Once interpreted and affirmed, that is direction to the Hearings Officer from now on regarding similar situations. Mr. Lelack added that because the Board is given deference, hearing it makes a big impact. He is not sure how LUBA might rule if just the Hearings Officer's decision goes there. Mr. Blikstad said that a substantial criterion was not appealed. There were three pages on the siting part. If the Board hears it, there will need to be clarification on other criterion. Chair Unger feels that the Board needs to hear this since it will likely go to LUBA. Ms. Craghead indicated that it should be heard de novo. Commissioner DeBone asked what `giving deference' means. Ms. Craghead responded that LUBA could decide on whether the Hearings Officer is right or wrong. But if it something is even plausible, even if it is not a sure thing, the Board gets a lot of deference and LUBA would probably uphold it. Chair Unger added that the Hearings Officer has to make a decision based on Code; the Board has more flexibility to set policy. Ms. Craghead said that LUBA could decide to uphold the Board's decision even if it is just slightly plausible. There are other matters of federal law involved as well, so it is complicated. Mr. Blikstad stated they want to provide service to the community east of Bend and along Highway 20. Ms. Craghead said that in regard to a search radius, they start where they want it sited and then look for other properties within that area that will cover the gap in service. Commissioner Baney asked if it is placed where they can find a willing property owner, or only in certain locations. Mr. Blikstad said it could be a combination of factors. They search the area and hope to find someone who is agreeable to having it there. If there is a gap in service, they try to find the best place for the tower. Minutes of Board of Commissioners' Work Session Monday, April 1, 2013 Page 4 of 7 Mr. Blikstad stated they had one contentious hearing, and at least twenty people testified against the tower siting. He will draft an order setting a hearing. They'll have a work session before the hearing. Commissioner DeBone disclosed that he had looked at the property earlier, before this came to them. The consensus was to have a de novo hearing. They hope to have it at the Alfalfa Community Center if possible, in the evening. 3. Discussion of Proposed PERS Legislative Bills. The Board discussed the PERS bills: SB 754 (more aggressive) and SB 822 (more modest). The Board had previously indicated support of 754. Judith Ure said she talked with AOC & Public Affairs Counsel representatives. It may be too soon to take a position, but the Board can do this if it feels there is complete information. This sends a message to the local delegation. She is not sure where it will end up. Commissioner Unger asked if the school board bill has the most support from AOC. Ms. Ure replied that they have not said for sure that SB 754 is the right one. Andy High said that it greatly affects the school districts if nothing is done. It will relieve pressure at this level. Otherwise, 74 teachers and others will have to be laid off, to offset $4.5 million next year. He talked with Senator Knopp who said he is not sure what is going to happen, but most legislators do not want to leave session until something is fixed. Ms. Ure stated that it may not stay in the same form. Mr. High said SB 822 may make it worse for PERS employers because it delays the inevitable. Judith said the Board can support one or both, or neither. Mr. Anderson said that one of the big issues with PERS reform is Constitutional challenge. If 754 is approved, it could be challenged by the unions and end up in court. He asked if the court can decide on part of the bill as unconstitutional. Ms. Ure noted that 754 has a clause in it that says just that. Minutes of Board of Commissioners' Work Session Monday, April 1, 2013 Page 5 of 7 BANEY: Move approval of signature of Resolution No. 2013-029, with the letter to be sent to Representative Conger. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 4. Other Items. Commissioner DeBone said he got an unsolicited e-mail regarding a wildfire project, but it might be a mass-mailing type of thing. Commissioner Unger suggested he let the County Forester check into it to find out if it is legitimate and viable. Mr. Kropp noted that HSCO contacted him. They are working with COVO (Central Oregon Veterans Outreach) regarding getting homeless veterans' dogs vaccinated and spayed/neutered. They asked if the County would waive the fee for these licenses. The Board could waive or do a discretionary grant. The estimate is about 50 dogs. Commissioner Baney indicated that Project Connect offered veterinary services like this, and Bend Spay/Neuter participated. Commissioner Unger said that maybe all providers could come together for a combined request. Commissioner Baney added that there are homeless veterans in all areas of the county. Mr. Anderson suggested that COVO might act as a go-between to coordinate this effort. Mr. Kropp said the there is a town hall meeting on the 9-1-1 levy on April 16 in La Pine; and another at Sisters-Camp Sherman coming up. He asked if a Commissioner could attend each. Commissioner Baney said she could attend the Sisters meeting on her way to Salem. Commissioner DeBone stated he would attend the one in La Pine. Chair Unger said there is a Tumalo community meeting that evening, and two different groups there who do not agree with each other. He feels they should realize the plan is much bigger than just this. Minutes of Board of Commissioners' Work Session Monday, April 1, 2013 Page 6 of 7 Commissioner Baney said that a Bill is being considered to legislate regionalization of public health offices into eight. This is a bad idea, since legislating partnerships is not as good as incentivizing groups to come together. The CCO's did not work well in setting up regions. The main message should be to incentivize and not legislate, and make sure it works along natural boundaries and providers. She asked if the Board approves of her making a statement while in Salem. HB 2013 suggests five regional hubs for early learning, which is different from health care. This side of the mountains has already done much to regionalize. The Board was supportive of her expressing this opinion on their behalf.. Chair Unger attended a freight advisory meeting last week where they discussed how the Deschutes basin might get a grant to develop ways to manage water flows. There are other water people involved with their own interests. This money was already programmed due to past legislation, but most of it was focused on the Umatilla area. Commissioner DeBone will be attending County College in Salem on April 19. Being no further items addressed, the work session ended at 2: 40 p.m. 2013 for the DATED this 0 Day of 61-~ Deschutes County Board of Commissions s. ATTEST: Recording Secretary Alan Unger, Chair Tammy Baney, Vice Chair Anthony DeBone, Commissioner Minutes of Board of Commissioners' Work Session Page 7 of 7 Monday, April 1, 2013 ~CL+ 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, APRIL 1, 2013 1. Discussion of Tumalo Trail Proposal - Peter Russell 2. Discussion of an Appeal of the Hearings Officer's Denial of an Application for a Cell Tower in the Alfalfa Area - Paul Blikstad 3. Discussion of Proposed PERS Legislative Bills 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), litigation; ORS 192.660(2xd), labor negotiations; 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. !f you have questions regarding a meeting, please call 388-6571. 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. M O N a. Q 7+ t0 "f7 C 0 I ~I E v z~ 19 ' II N) 14 f III ~~I r I l w ~I r r l7` 'I fr I 4z ~ M a 1 ~ I ~ III dI~L. (fz 1,f7 b ~ 71 I III ~ I I I I aCi I I II I I II II I i !I I I I 'II I I~ ~ C I i I i Imo. Vi I x Community Development Department Planning Division Building Safety Division Environmental Solis Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Board of County Commissioners f=rom: Peter Russell, Senior Transportation Planner Date: March 26, 2013 Re: Tumalo Trail cultural historical resources issue and possible next steps Background Deschutes County adopted the Transportation System Plan (TSP) Update in 2012 after extensive public outreach. The TSP Update has Policy Bike/Ped Policy 15.3(o) to pursue grants to build a trail between the unincorporated community of Tumalo and the Tumalo State Park. The County also adopted Tumalo Community Plan into the County's Comprehensive Plan in 2010 following a long public outreach program. The Tumalo Community Plan includes Open Space and Recreation Policy No. 11 to establish a multi-use trail system from Tumalo State Park to Tumalo. This trail is consistent with Bend Metro Park and Recreation (BMPRD) and City of Bend vision of a Deschutes River Trail (DRT) between Sunriver and Tumalo. To implement this policy and vision, the County's Community Development and Road Departments applied for a grant in 2012 to plan and build this multi-use trail. Oregon Parks and Recreation Department (OPRD) awarded Deschutes County and the local Oregon Parks and Recreation Department office an $184,000 Regional Trails Program (RTP) grant to build the trail. The County and OPRD will provide a match of roughly $100,000 of combined in-kind services and $32,000 in cash from OPRD. The proposed $285,000 Tumalo Trail would be located on the west bank of the Deschutes River, linking the south end of Riverview Avenue in Tumalo and the north end of the Day Use Area in Tumalo State Park. The roughly 1-mile trail would be entirely on public land. Included in the Tumalo Trail is a paved section 8 feet wide and about 2,500 feet long (slightly less than a half-mile), extending from Riverview Avenue then passing underneath the US 20 bridge with a connection to O.B. Riley Road. The remainder of the trail would be an improved aggregate surface trail varying in width from 2 to 4 feet and continuing for 0.64 miles to the day use area. US 20 in Tumalo has relatively high speeds and daily traffic volumes approaching 12,000 vehicles. The paved segment linking OB Riley to Riverview would afford cyclists and pedestrians a grade-separated path. Tumalo residents support the trail for its economic Quality Services Performed with Pride development potential by improving non-motorized access to Tumalo State Park. Yet, the paved path and its routing have proved problematic. Critical issues Staff can expand on these issues at the work session, but basically the issues boil down to two related topics that revolve around archaeological resources. • Can the paved portion of the Tumalo Trail avoid identified archaeological and/or cultural- historical sites? • Can the County and OPRD afford to build the paved portions of the trail in the manner the State Historic Preservation Office (SHPO) has required? Avoiding cultural historical sites SHPO oversees lands to ensure historic and archeological sites are protected as required by state and federal laws. A review by Salem SHPO staff revealed there are two archaeological sites in the SHPO database, 35DS947, which is along US 20 to the west of the river, and 35DS321, which is upstream of the bridge and south of private residences that abut Knife River's complex. (See enclosed map.) In a June 14, 2012, letter SHPO wrote that the trail's route needed to be surveyed for archaeological sites. Neither the County nor regional OPRD had budgeted for a field survey based on our earlier understanding the probability maps did not depict any fatal flaws. OPRD only has one archaeologist on-staff for the entire state, but she was able to fit this unanticipated task into her workload. The OPRD archaeologist walked the site in late July/early August and prepared a report by October 2012, which was appreciated. The OPRD field survey led to an Oct. 30, 2012, letter from SHPO describing the sites found and proposed construction materials and techniques; further testing would be required for Site 35DS321. The letter said no ground disturbance could occur at either site. Another option presented in this letter was to re-route the trail north of Site 35DS321 on an existing gravel road. Unfortunately, the right of way for the gravel road has been vacated, which would place the trail on private land. County staff on Oct. 30, 2012, raised concerns about whether the paved trail was now feasible given the SHPO response. County Planning and Road Department staff along with regional OPRD staff met with SHPO and OPRD Salem staff on Nov. 19 to discuss the issue. Road Department staff surveyed an alignment of the Tumalo Trail and prepared draft plans which were sent to SHPO on Feb. 20, 2013. The County's understanding after the Nov. 19 meeting was to present more precise alignment of the trail instead of the broad concept shown in the grant application. The Regional OPRD office would fund testing of the area around Site 35DS321 up to $5,000 to see if the alignment could be environmentally cleared by SHPO. In a March 5, 2013, e-mail, SHPO again objected to the alignment and proposed an unsurveyed alternative south of Site 35DS321, but north of a third site, 35DS1925. County staff is doubtful the paved portion of the trail can be routed to miss all the archeological sites. County staff would also point out this second alternate route has not been field surveyed for cultural resources and could very well have lithic scatters identified by the summer 2013 fieldwork, essentially putting the County in the same bind again. 2 Can the County/OPRD afford to build the paved portion of the Tuma/o Trail in the manner prescribed by SHPO? In both Oct. 30 and Oct. 31, 2012, letters SHPO requires ground not be disturbed, that geotextile cloth be used, and then the resource capped by rock. The budget for Tumalo Trail did not include such extensive work. County staff shared those concerns with SHPO at the Nov. 19, 2012, meeting in Salem involving SHPO, OPRD, and the County. Road Department staff discussed the costs for staging and constructing the paved portion of the trail with local contractors to get a sense of whether the project was physically possible. In general, while physically possible the costs of paving the trail would rise dramatically. There would also be cut and fill operations on the north side of US 20 as the trail passes from underneath the highway to Riverview Avenue in Tumalo. The trail would go on some ground that was disturbed with the construction of the US 20 bridge, but would also go across land that has not been disturbed. SHPO would also require a monitor to be on-site during construction in case any significant archaeological or historical artifacts appeared, the operation could be shut down before the artifacts were destroyed or damaged. Again, the grant did not anticipate this expense. Options Planning and Road Department staff has met internally and with regional staff from OPRD. Presented below, in no order of preference, are potential next steps. Staff has summarized the major plus and minus of each approach. Staff recommends the fourth bullet (make all of trail soft surfaced) be the County's course of action. • Terminate paved trail just south of US 20 bridge to avoid disturbing identified cultural resources site. o Plus: Site 35DS321lies undisturbed. o Minus: Creates a paved path to nowhere as connection to O.B. Riley is lost, which was the County's main goal to provide. • Route paved portion of Tumalo Trail to an existing gravel road that connects to OB Riley Road. o Plus: Site 35DS321 lies undisturbed. o Minus: Gravel road is on private property as the County vacated the right of way. • SHPO proposed alternate routes to OB Riley. o Plus: Misses known cultural resources. o Minus: Routes still need to be surveyed and there is no guarantee the proposed alternate routes would not also have cultural resource issues. In other words, the routes proposed by SHPO do not have environmental clearance. • Abandon the paved trail aspect and connection to OB Riley, making the entire trail soft- surfaced. o Plus: The connection to Tumalo would be made and the trail would become an Oregon State Parks project completely. o Minus: Road bikes would still have to cross US 20 or walk their bikes on the soft path. • State Parks builds the section from the gravel road south to the day use area, leaving the connection to Tumalo unimproved. o Plus: The bulk of the trail would be constructed. o Minus: Still results in a trail to nowhere. • Request SHPO come up with funds necessary to test site immediately and clear it prior to construction. o Plus: No cost to County. o Minus: Doubtful SHPO will have the necessary fiscal resources. • Contact Regional Trails Program (RTP) grant administrator to see if funds can be carried over into another cycle and have OPRD work to get lands cleared by SHPO. o Plus: No cost to County. o Minus: No guarantee funds would be carried over plus loss of another construction season. • Continue pursing paved trail on proposed alignment. o Plus: No need to resurvey or redesign costs. o Minus: No guarantee trail is feasible from a SHPO standpoint. General timeline for Tumalo Trail grant application process Please find below a summarized version of major milestones in the development of the Tumalo Trail and the wending through the RTP grant process. Oct. 27, 2011 - County sent a letter of intent to OPRD that the County and regional OPRD would apply for a RTP grant. Jan. 13, 2012 - Formal grant application submitted, which includes review by various state agencies, including SHPO. April 24, 2012 - County Engineer George Kolb and Senior Transportation Planner Peter Russell travel to Salem to give oral presentation to the grant review committee. June 14, 2012 - Letter from SHPO to RTP identifying two archaeological sites, 35DS947 and 35DS1925, and the need for a cultural resources survey. July 31-Aug 1?, 2012 SHPO performs cultural resources survey Oct. 30, 2012 - Letter from SHPO indicating no ground-disturbing activities can occur at either site and geotextile cloth and capping the resource must occur at both sites Oct. 30, 21012 E-mail to SHPO regarding work restrictions beneath US 20 bridge Oct. 31, 2012 - Second letter from SHPO relaxes requirements for work done underneath US 20 bridge, but not elsewhere along the terrace abutting US 20 or the site south of the bridge. Nov. 19, 2012 - Meeting in Salem with OPRD Salem and Regional staff, SHPO, and County staff regarding generalized trail alignment, potential further testing, and alternate routes 4 December 2012-February 2013 - Road Department surveys Tumalo Trail for precise alignment and prepares design Feb. 20, 2013 - Road Dept. design sent to SHPO. March 5, 2013 - SHPO responds unfavorably to surveyed alignment March 14, 2013 - County staff meets with OPRD regional staff to discuss next steps Enclosure: SHPO air photo of proposed Tumalo Trail, affected sites, and alternate route June 14, 2012 letter from SHPO to OPRD Oct. 30, 2012 letter from SHPO to OPRD Oct. 30, 2012 e-mail from Peter Russell to OPRD Oct. 31, 2012 letter from SHPO to OPRD 5 } r 1 r T " Legend "C ~FGrcximate Park Bound an ! M Site_GcI- Pre •lcuslyCccum ented. + ~M Site_Gcint- sciated Occurrence Preeicuslr'Cecum entet'. ;:,lternab;e kcute forSutaurfaCe-esting S uCaurface -e sting Area h . .7. ~0 25 50 100 150 200 ~~a ALI OREGON STATE HISTORIC PRESERVATION OFFICE ARCHAEOLOGICAL SERVICES This product is for informational purposes and may not have been prepared for, or be suitable for legal, engineering, or surveying 01530 60 90 120 purposes. Users of this information should review or consult the Meters primary data and Information sources to ascertain the usability of the information. o re on John A. Kitzhaber, MD, Governor October 30, 2012 Mr. Mark Cowan OPRD 725 Summer St NE STE C Salem, OR 97301 RE: SHPO Case No. 12-0806 RTP Grant - Tumalo Section Proj FOE/construction of paved trail Deschutes County/OPRD 16S 12E 6/175 12E 7, Bend, Deschutes County Dear Mr. Cowan: Parks and Recreation Department State Flistoric Preservation Office 725 Summer St NE, Ste C Salem, OJZ 97301-1266 (503) 986-0671 Fax (503) 986-0793 W w w.oregoitheri t,ige.org OKEG .Ynlnrd HISTORY :iTATF Dia'rn.•r Our office has received a preliminary summary of a survey that was conducted for the proposed trail section noted above. My earlier letter commented on the presence of two known archaeological sites within the proposed trail route. The recent survey confirmed the presence of both sites within the project area while finding no additional sites. In order for the proposed project to go forward steps need to be taken to address both known sites. A summary of options is included below. 1. Site 35DS947 is a prehistoric lithic scatter that extends along the entire stretch of Highway 20. Our office believes that the project can proceed through this site if the entire area along Hwy 20 where the trail is to be built is covered by a geotextile cloth and than capped by rock with the trail being built on top of the rock base. No ground disturbing activities can take place along the highway in this portion of the proposed trail. The proposed trail clearing and grubbing can not take place as outlined in the grant proposal nor can informational kiosks be constructed within the site if any excavations are necessary. 2. Site 35DS321 is located near the southern end of the proposed trail. No work can be conducted in this portion of the proposed trail without subsurface testing first occurring in order to determine the integrity of the site and the potential adverse effect that will occur from the proposed activity. For the trail to be constructed in the south either of two options need to be completed. These include: 1) subsurface testing will be needed in the portion of site 35DS321 that can not be avoided by the proposed trail. Only after examining the results of such investigations can we discover if the site is eligible for the National Register and/or if capping of the site is possible; or 2) the trail can be rerouted north of the site, as recommended by the State Parks' archaeologist Nancy Nelson, through private land. However, this portion of land has not been surveyed for cultural resources and site 35DS321 may extend within it. A cultural resource survey will be needed for any alternative routes prior to approval of the proposed project. If the project proponent decides that capping of site 35DS947 and rerouting of the southern portion of the trail, after the completion and approval of a cultural resource survey, is the preferred option, a professional archaeologist needs to be on site to monitor all ground disturbing activities. Due to the importance of lands along the Deschutes River to past area inhabitants and the location of the known sites, the presence of the monitor is required in order to insure that if any archaeological material is discovered during project construction activities all work can stop and the discovery can be assessed for significance. State statutes (ORS 358905 and ORS 97.740) protect archaeological sites, objects, and human remains on both state public and private lands in Oregon. 1 hope that by providing the above recommendations, damage to any archaeological sites in the area of the proposed project can be avoided. If you have any questions regarding the applicant's need to complete the additional proposed work (c.g:j additional survey or testing) and hire an archaeologist to monitor all ground disturbing activities, or wish any additional information about the above comments, feel free to contact the SHPO office at your convenience. In order to help us track your project accurately, please be sure to reference the SHPO case number above in all correspondence. Sincerely, Dennis Griffin, Ph.D., State Archaeologist (503) 986-0674 dennis.griffin@state.or.us Imo, ` z, rte: Ure -,eon 45 JAn A. Kit'rhaber, i14D, governor October 31, 2012 Mr. Mark Cowan OPRD 725 Summer St NE STE C Salem, OR. 97301 RE: SHPO Case No. 12-0806 RTP Grant. - Tumalo Section Proj FOE/construction of paved trail Deschutes County/OPRD 16S 12F 6/175 12E 7, Bond, Deschutes County Dear Mr. Cowan: Parks azid Recreation DeEartinent State 1-Ii6toric Preservation Office 725 Sumrnei: St NE, Ste C Sa.lent., OR 97301-1266 (503) 986-0671 Fax (503) 986-0793 www.orego heri.tagc,org ' I Nuti,r[• HISTORY ns :v IN Many thanks for the additional intormation regarding the above project. In talking with you I understand that a portion of the proposed project is to excavate soils along a lower terrace adjacent to the Deschutes River. This area is below the terrace where site 35DS947 is located and has already been severely impacted from both bridge construction and river erosion. Our office sees no problem with trail development activities occurring in this area without any need to have the area covered by a geotextile cloth or gravel base. 'T'hose restrictions were directed only along the terrace that follows Highway 20. Work beneath the bridge will not affect any archaeological resources as long as al excavation activities will stay away from the bank itself, beneath the bridge, where an archaeological site component may exist. I understand the terrace edge is located north of the area to be impacted so there should be no problem with trail development under the bridge, As noted in my letter yesterday, the other provisions that I outlined for the project remain in place. These included: 1) capping of site 35DS947 along Highway 20, and 2) either testing of site 35DS321 to determine its eligibility and level of effect from the proposed project or rerouting the project away from the site area and having a cultural resource survey completed for this new route. State statutes (ORS 358.905 and ORS 97.740) protect. archaeological sites, objects, and human remains on both state public and private lands in Oregon. 1 hope that by providing the above recommendations, damage to any archaeological sites in the area of the proposed project can be avoided. If you have any questions about the above comments, feel free to contact the SIIPO office at your convenience. In order to help us track your project accurately, please he sure to reference the ST 1PO case number above in Lill cor-respotidencc, Sincerely, r''y f '2 Dennis Griffin, Ph.D., srnir , mRKS , State Archaeologist (503) 986-0674 dennis.griffin@state.or.us F~ tYreg6n ~ l ' John A. Kitzhablr, MD, C,overnor June 14, 2012 Mr. Mark Cowan OPR.D 725 Summer St NE STE C Salem, OR 97301 RE: S11PO Case No. 12-0806 RTP Grant - Tumalo Section Proj FOE/construction of paved trail Deschutes County/OPRD 16S 12E 6/175 12E 7, Bend, Deschutes County Dear Mr. Cowan: Parks and Recreation Departrnen.t State Histur,ic Preservation Office 725 Sumner St NE/ Ste C Salem, OR 97301-1266 (503) 986-067-1 Fax (5013) 986-0703 www-oregonheri tage.org ,vurrrrr HisTony STATl MS:-rc y \ FARM,, A search through the SHPO archaeological database has revealed that there two reported sites (35DS947 and 35DS 1925) in the area of the project referenced above. It is important that a cultural resource survey be conducted to identify the location, boundaries and significance of any cultural remains within the project area prior to any land disturbing activities. We recommend that the area be examined by a professional archaeologist, prior to development, to determine if cultural materials are present. A list of possible archaeological consultants can be found at our website (www.oregonheritage,org) , on the Archaeological Services web page under the Publications section. State statutes (ORS 358.905 and ORS 97.740) protect archaeological sites, objects, and human remains on both state public and private lands in Oregon. 1 hope that by providing the above recommendations, damage to any archaeological sites in the area of the proposed project can be avoided, If you have any questions regarding the applicant's need to !tire an archaeologist, or wish any additional information about the above comments, feel free to contact the SHPO office at your convenience, In order to help us track your project accurately, please be sure to reference the SHPO case number above in all correspondence, Sincerely, 'Dennis Griffin, Ph.D., R~ State Archaeologist (503) 986-0671 dennis.gri f'f in(i1 sta.t.e.or, us r~ d Y R Am W 0 m m Q ~ O N d 00 ti Q N 00 ~ G v 4 U) 0 4 x ~ a ch co a~ M 2 a a co E y Q ~ N N ~ Q M N •c J Q l L 0 O§ Q) y,y , a~.~ r Q Q y IL ED U cn Ln 0 . O -C U IL; M Y cy-, N Q) L U) N v a~ O 00 110 O O 0 - F? cn V -w 00 M L 4 W Ch U a) c~ L r Cu W ~u (U LL (n F- U) v ~ w ~ CL Q Q O. ~ U U Cdr . , + y.. U v C3 cn G" ~ ~ U U bA O C1, -Z:; Q.) U qj ~ O 4 v O-4 v 7~ cC ~5 .4 bA v cC 3 ~ 7:1 a~> O o"Q o~ o cl . aj U O ai v O p ~ cC U U bA yj 4-J 0 W Q 4-1 `n O ~ v rl w O rs U L 3 a (I.) p ~c ~ o 0 0 N o ° o v W v ~ ~ Q o o an v a~ O U cn O b O ~ p v ra 44 ~ O aop o ~ o v v ~ ~ o Cd 3 h-1 Q bJ7 v cn v ~ ~ v v v U Q) cn vNi ~ O Q ~ cn U ~ ~ U C N y Q o v_ ai f a N d O a = p cn ru v N Q ~ O E N O C ~s o o v C Q1 N g o o C: t a o R _Q w ch o0 U ~p v' O ~ a a, °O, a) LL a vOi av C6 74 m V O N 400 0t,~~ ~ a~ v v~ v L d O rJ O LL ~~vcn z H= o:cn o a_ t v Ln 0 E co c O -0 U c O U aj u N v Ln N O O v r~ A rv N v _0 c o o V) Q ~ ro E ~o 2 .2 c o fO ~ v E' E N Ln C O M O C 7 a v a ~Ei ca m c i O A E v ~ U N = !4 v c O N a~ O_ 0 0 c O a C v v v N ns CL T) L a N V Y C m L O O ,O V E m a~ 0 a C C V Q. a 0 c O U o 4 =3 lD aj Ln lp O Ln c n yrn -Ul E0~ CD a- E O ra~ ' c: E 00 aJ Ln Q) C, - 2 n 0r ° DATE: March 19, 2013 Community Development Department Planning Division Ruilding Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Board consideration of an appeal submitted by American Tower of a Hearings Officer's decision denying a cell tower in the Alfalfa area (File No. CU-12-15) BACKGROUN American Tower submitted an application for a Conditional Use Permit for a 100-foot tall cell tower in the Alfalfa area of the county. The property where the tower is proposed is located at 25070 Alfalfa Market Road (Assessor's map 17-14-29, tax lot 600). This application went before the Deschutes County Hearings Officer at a public hearing on December 4, 2012. The Hearings Officer's decision denied the application and it was mailed out on March 1, 2013. An appeal was submitted within the 12-day appeal period by American Tower. As of the end of March, the review period will be at the 143rd day. The applicant/appellant has indicated that they are willing to grant an extension to the 150-day review period in order for the Board to consider the appeal. The applicant has requested de novo review of the application. APPPAI The notice of appeal describes three assignments of error, which are listed below- 1 . The Hearings Officer erroneously found the Applicant-Appellant failed to satisfy its burden of proof under DCC 18.128.340(8)(2) in failing to prove that other sites within the search area are either 1) unavailable, 2) do not provide the communications coverage necessary, and /or 3) have a substantially similar or greater visual impact as viewed from nearby residences as the Subject Property. 2. The Hearings Officer erroneously found that the Hearing Officer could not find the Applicant-Appellant satisfied its burden of proof under 18.128.340(A)(3)(c) because the evidence in the record establishes proposed search ring satisfies the applicable criteria. 3. Alternatively, the Hearings Officer erroneously found that the evidence in this decision did not support a finding that the proposed facility must be sited on exclusive farm use zoned property under DCC 18.16.038(A)(3) because the evidence in the record establishes urban and nonresource lands were unavailable due to the visual impacts of the proposed facility on the nearby residences. Quality Services Perfor►ned 7vith Pride As noted above, the applicant is willing to extend the time frame for review of this appeal for up to 60-75 days to allow time for the Board to hear the appeal. The appellant requests de novo review. The Board should review the notice of appeal to determine that it is sufficiently specific so that the Board is able to respond to and resolve each issue in dispute (See: DCC 22.32.020(A)). If the Board decides to hear the appeal, the review shall be on the record unless the Board decides to hear the appeal de novo because it finds the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or whether in its sole judgment a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action (See: DCC 22.32.027(B)(2)(c) and (d)). The Board may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal (See: DCC 22.32.027(6)(4)). DECLINING REVIEW If the Board decides that the Hearings Officer's decision shall be the final decision of the County, then the Board shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the Board's decision to decline review. In determining whether to hear the appeal, the Board may consider only: 1. The record before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of staff (See: DCC 22.32.035(6) and (D)). STAFF RECOMMENDATION Staff recommends that the Board hear the appeal of the Hearings Officer's decision, because there are significant policy issues and code interpretations involved. Staff recommends that the Board conduct a de novo review. Attached for your review is a copy of the decision on CU-12-15, as well as the notice of appeal. All of the file/submitted materials and comments are available for review, either in LAVA or if requested, I can get you paper copies. The applicant's attorney submitted a supplemental notice of appeal after the 12-day appeal period, which we have determined you cannot review unless you choose to hear it de nova. I have scheduled this for the Board's work session on Monday April 15' for discussion and a possible decision on whether to hear the appeal. If you should have any questions, feel free to contact me at your convenience. BOCC Memo (CU-12-15) Page 2 RECEIVED BY. MAR 1 3 2013 March 12, 2013 GELIVEREp---B Ya - LLV~r Via UPS Next DayAir 1Z F71 970 22 1005 501 D s Paul Blikstad, Senior Planner Deschutes County Community Development Community Development Building 117 NW Lafayette Ave. Bend, OR 97701 RE: Appeal of Deschutes County Hearings Officer Decision for CU-12-15 Our File No: 22756 Dear Paul: Enclosed please find the application form to appeal Deschutes County Hearings Officer Decision for CU- 12-15. Also enclosed is a check in the amount of $3,333.00. The information required by the Notice to Appeal will follow via email to you on Wednesday, March 13. Please feel free to contact me if you have any questions. Sincere , MARK D. SHIPMAN mshipman@sglaw.com Voice Message #310 MDS:jsm Enclosures H:\Dou\22500.22999\22756\Correspondence\Letter.BlikstadAppeal,Docx A Member of LEGUS, an Intomaliorrll NV twork of Law Firms. Park Place, Suite 300 250 Church Street SE Salem, Oregon 97301 PU,t Office Box 470 Salem, Oregon 97308 tel 503.399.1070 fax 503 3/1 2927 www.sglaw.com Community Deveiopment Department Q Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385"1764 http: //www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL 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 shall 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 an appeal invalid. 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 (DCC Section 22.3Z01 0) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. American Tower Corporation and AT&T Mobility Appellant's Name (print): c/o Mar Shipman Phone: 5( 03) 399-1070 Mailing Address: Saalfeld Griggs PC; PO Box 470 City/State/Zip: Salem, OR 97308 Land Use Application Being Appealed: Conditional Use Permit CU-12-15 Property Description: Townshi Appellant's Signature: 14 Section 29 Tax Lot 600 EXCEPT AS PROVIDED I SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF NY H rki NG APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPEAREQUEST (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) NOTICE OF APPEAL Justification for appeal forthcoming under separate cover. E Via Email to pouLblikstod@deschufes.org Deschutes,County Board of Commissioners c/o Paul Blikstad Deschutes County Planning Department 117 NW Lafayette Avenue Bend, OR 97701 RE: Conditional Use Case No. CU-12-15 Our File No: 22756 i. Dear Honorable Commissioners: This office represents New Cingular Wireless PCS, LLC by and through American Tower Corporation (herein collectively "Applicant"). Applicant is the tenant of a portion of 25070 Alfalfa Market Road, Bend, OR 97701 (County Assessor's Map No. 171429 00 00600) (hereinafter the "Subject Property"). On October 8, 2012, Applicant submitted its application proposing to install a new wireless communication facility consisting of a 100-foot free-standing steel monopole with accompanying antennas, microwave dish, electric and phone utilities, a 12' by 20' prefab equipment shelter inside a 50' by 60' fenced leased area, and landscaping, including eleven (11) juniper trees (herein the "Application"). On March 1, 2013, the Deschutes County Hearings Officer's decision in Conditional Use Case No. CU-12-15 (the 'Decision") denied the Application. The Decision was mailed on March 1, 2013. Applicant-Appellant submits this letter requesting the Board of Commissioners (herein the "Board") to accept an appeal of the Decision on de novo review for the reasons stated below. Statement of Assignments of Error 1. The Hearings Officer erroneously found the Applicant-Appellant failed to satisfy its burden of proof under DCC 18.128.340(6)(2) in failing to prove that other sites within the search area are either 1) unavailable, 2) do not provide the communications coverage necessary, and/or 3) have a substantially similar or greater visual impact as viewed from nearby residences as the Subject Property. ..,.,~.~r~P;r. i.F:;l75. e,~'...... ..:,i~c•n,.. .._s:~r!~. c. ..rr.. , . Park Place, Suite 300 2S0 Church Street SE Salem, Oregon 97301 Post Office Box 470 Salem, Oregon 97308 tai 503.399.1070 fax 503.371.2927 www.sglaw.com March 13, 2013 Deschutes County Board of Commissioners Page 2 The Hearings Officer made the following finding in the Decision in relevant part: First, the applicant's burden of proof does not appear to consider the alternative of utilizing the existing transmission lines along Elk Cane, and the applicant does not respond to this suggestion in post hearing submissions. Second, the applicant does not respond to the opponents' suggestion that the tower might be located on the DSL property in a way that only Incrementally impacts views from nearby residences which are already impacted by those transmission lines. Third, the applicant's dismissal of the DSL property does not adequately respond to the opponents' reasons for suggesting that property as an alternative. The record shows that the DSL property is fairly large and varied in terrain compared to nearby lands. The argument submitted by the applicant does not demonstrate a serious attempt to find a location on the DSL property that both satisfies the RF needs and mitigates impacts on scenic views. Instead, the applicant posits a spectrum of potential locations populated only by a location at the bottom of the ridge and a location at the top of the ridge. Predictably, those locations are deemed unsatisfactory due to limitations in coverage or impacts on scenic views. Opponents identified locations both on the west side and the east side of the property that might represent lesser visual impacts to surrounding residence, but the applicant does not seriously respond to those suggestions. The record provides sufficient substantial evidence to suggest that many other alternative locations within the 05L property could satisfy the primary component of DCC 18.128.340(8)(2) which is to show that "any less intrusive sites are either unavailable or do not provide the communications coverage necessary." for these reasons i find that the application does not comply with this criterion. The Hearings Officer's Decision faults the Applicant-Appellant for failing to consider siting the property on transmission lines along Elk Lane, which is outside of the search ring. Applicant's written statement and subsequent materials establish what properties are subject for consideration as defined by the search ring. The Hearings Officer's assertion the Applicant-Appellant's application must be denied for failing to respond to assertions that the proposed facility can be sited on properties outside of the search ring is a misinterpretation of DCC 18.128.340(6)(2) and is not supported by the evidence in the record, Similarly, the Hearings Officer's Decision dismisses the Applicant-Appellant's analysis of the DSL Property as an inadequate response. Applicant's written materials in the record and the oral testimony of Rod Michaelis explained that the coverage goals of AT&T could only be addressed if the proposed facility was sited on the top of the ridge, which would negate the apparent advantage of the site as it relates to mitigating visual impacts. Unfortunately, Mr. Michaelis testimony was not preserved on the record, which further substantiates the need for de novo review of the Decision. If the Board grants review, the Applicant-Appellant can submit additional evidence specifically analyzing these proposed sites, including express evidence as to whether it is feasible to create a tower in such alternative sites to satisfy the coverage goals and if so, the physical characteristics of such towers. However, Applicant-Appellant asserts the evidence in the record is sufficient to address this criterion. March 13, 2013 Deschutes County Board of Commissioners Page 3 2. The Hearings Officer erroneously found that the Hearings Officer could not find the Applicant-Appellant satisfied its burden of proof under 18.128.340(A)(3)(c) because the evidence in the record establishes proposed search ring satisfies the applicable criteria. The Hearings Officer made the following finding in the Decision: The staff report addresses this criterion os follows; The proposal includes maps labeled "Location Overview" and "Alfalfo - Search Ring, " attached as part of exhibit 9 to the application. There is also a larger scale map of the area printed out in the County's LAVA mapping system, as well as a Google Earth map. The "Location Overview" map shows existing tower locations in relation to the proposed site on Alfalfa Market Road. Exhibit 9 also includes a letter from Karen Sullivan, RF Engineer far AT &T, for a radio frequency analysis. The analysis states: "We have researched other sites in the area for on existing structure to collocate AT & T's wireless and microwave antennas and we found no towers or structures suitable for colocation that will meet the coverage objective for the area. A FCC ASR web search was conducted and the nearest existing tower is located at 44-04-15JN, 121-09-51.7W, which is approximately 4.5 miles from the proposed Alfalfa site. 4.5 miles is too far out of the search ring to produce any positive effect in filling the gap in RF coverage. The new structure that we intend to locate on will be co-locatable to accommodate multiple wireless carriers' antennas." The search ring submitted by the applicant includes a relatively small area near and including the subject property. Staff believes that the applicant needs to state why this particular area served as the extent of the search ring, and why other areas beyond this area were not considered. Opponents argued that the search ring is too small to realistically capture all the potentially available properties for an adequate alternatives analysis. Consistent with the findings for DCC 18.124.340(8)(2) below l conclude that the search ring could have been expanded. However, because 1 find that the application fails to satisfy DCC 18.124.340(8)(2), it would be premature to necessarily conclude that the search ring initially proposed by the applicant was in error. The record contains written evidence by Applicant's representative, Karen Sullivan, RF Engineer, including a search ring and report into the record establishing the outer limits of the properties that will allow for the installation of the lowest possible tower height while still providing the best overall coverage for the Alfalfa Community. The necessary coverage goals in this case were to cover the greater Alfalfa area, including those areas between Highway 20 and Powell Butte, and between Alfalfa and East Bend. Moreover, Applicant-Appellant's representative provided expert testimony before the Hearings officer regarding the search ring, Unfortunately, the record of such testimony, as described below, is incomplete. Regardless, it was erroneous of the Hearings Officer to find that the search ring did not satisfy the criterion. March 13, 2013 Deschutes County Board of Commissioners Page a Moreover, Applicant-Appellant asserts the Hearings Officer's interpretation of the Applicant's burden of proof to refute alternative sites, especially those located outside of the search ring is inconsistent with federal case law interpreting the Telecommunications Act, which is applicable to this decision. Specifically, Applicant-Appellant asserts it has established a prima facie showing that siting the Proposed Facility on the Subject Property is necessary to satisfy the Applicant-Appellant's coverage goals while complying with the purpose of the applicable criteria as much as is reasonably feasible. T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 998 (C.A.9 (Wash.)(2009) (reversing local denial when applicant provided analysis of 18 possible alternative sites and demonstrated no other available sites). If review is granted, Applicant-Appellant will offer additional testimony explaining the methodology used by AT&T in calculating the search ring and establish such methodology comports with the applicable criterion. Applicant-Appellant's engineers and other representatives will also make themselves available for further questions by the Board. 3. Alternatively, the Hearings Officer erroneously found that the evidence in this decision did not support a finding that the proposed facility must be sited on exclusive farm use zoned property under DCC 18.16.038(A)(3) because the evidence in the record establishes urban and nonresource lands were unavailable due to the visual impacts of the proposed facility on the nearby residences. The Hearings Officer correctly interpreted DCC 18.16.038(A)(3) in finding that a denial of this application due to immitigable visual impacts on non-resource lands within the search ring would necessarily justify locating the proposed facility on non-resource land. However, the Hearings Officer erred in determining the evidence in the record did not prove that the search ring in the record satisfied the code requirements and that the DSL property could not be developed in a manner that would decrease the visual impact on the surrounding properties. In the alternative to First and Second Assignments of Error, Applicant-Appellant requests the Board affirm the Decision in part and reverse in part accordingly. Reasons Why the Board Should Grant De Novo Review The Applicant-Appellant respectfully requests the Board to grant review the Decision to correct the Assignments of Error identified above. Further, Applicant-Appellant requests the Board to grant a de novo review of the Decision. DCC 22.23.02 provides the following factors for determining whether the Board should grant an appellant's request for a de nova review: a. Whether hearing the application de novo could cause the 150-day time limit to be exceeded; and b. If the magnetic tape of the hearing below, or a portion thereof, is unavailable due to a malfunctioning of the recording device during that hearing, whether review on the record would be hampered by the absence of a transcript of all or a portion of the hearing below; or c. Whether the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or d. Whether in its sole judgment a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action. March 13, 2013 Deschutes County Board of Commissioners Page 5 The factors in this case support the Board granting de novo review of the Decision. Applicant-Appellant is willing to grant an extension of 60-75 days to allow the Board sufficient time for a de nova hearing. As the requested hearing will be the second evidentiary hearing, the parties will not have a statutory right to require the record be kept open. Therefore, Applicant-Appellant is willing to adequately extend 150-day deadline in order for the Board to have adequate time to hear and consider this application; and this factor supports the Board's granting of a de novo hearing. The tape recording of the decision does not provide a complete record of the oral testimony by the Applicant-Appellant and its representatives. Specifically, the recording of the testimony of Applicant's case in chief and objections by the opposing parties is of such poor quality that it is practically missing in its entirety and the Applicant's rebuttal testimony missing substantial portions thereof. If the Board were to deny review of the Decision, the lack of a complete record before the Hearings Officer would substantially prejudice the Applicant-Appellant ability to seek otherwise available judicial review of the Decision. Specifically, without the ability to create a complete transcript, Applicant-Appellant could not establish as a matter of law the evidence in the record satisfies the criterion as Applicant-Appellant relied on its oral testimony to meet this burden. The interest of justice and this factor strongly support the Board's granting of a de novo hearing. No substantial rights of the opponents are affected by the granting of a de novo hearing. The Applicant- Appellant is requesting the hearing and would suffer prejudice to a substantial right. Again, this factor supports granting de novo review. Additionally, a de novo hearing is necessary for the Board to consider expert testimony regarding the issues in contention. While Applicant-Appellant's representatives testified before the Hearings Officer, the nature of such testimony is of the kind that Applicant-Appellant expects the Board will want to hear the testimony directly, weight the quality thereof, and follow up with any questions the Board may have. The Decision includes several interpretations of law as identified in the Assignments of Error above. The Board is the final arbiter of the DCC. This case involves significant questions of local law: how large must an applicant's search right be, how much of a visual impact on nearby residences requires denial of a proposed tower, and whether such a denial justifies development of exclusive farm use zoned properties. The Board is the appropriate body to make such determinations of law and policy, and therefore, this factor favors granting a de novo review. Lastly, the Applicant-Appellant intends on submitting the signed application of New Cingular Wireless PCS, LLC (AT&T) and a copy of its FCC license to the Board in the event it accepts review of the Decision. The Hearings Officer found such a license could be provided as a condition of approval. In the interest of creating a record adequate for review and limit the number of issues in contention, Applicant- Appellant shall provide such the necessary signatures and FCC license prior to the scheduled hearing. Conclusion A de novo hearing is necessary in order to correct the Hearings Officer's decision in this case. Applicant- Appellant is willing to grant the additional time needed by the Board to fully conduct a new hearing, consider the testimony and evidence in reaching a decision that has important policy considerations for March 13, 2013 Deschutes County Board of Commissioners Page 6 Deschutes County, its residents, and the telecommunication providers. Applicant-Appellant respectfully submits this letter in support of their request. Sincere/ ARK D. $ IPMA mshlpman sglaw.ct Voice M age #31O MOS:jsm H.XD-X22500.22999\22756)Co,,e,pondenc.NLett.,.Deuhat,s Cry.BOC.App-I.D-x DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: CU-12-15 OWNER/APPLICANT: American Tower c/o Rod Michaelis 1411 E. Pinecrest Road Spokane, WA 99203 REQUEST: Conditional Use Permit for a wireless telecommunications facility, consisting of a 100-foot cellular monopole and associated ground equipment, in the Rural Residential zone. STAFF CONTACT: Paul Blikstad, Senior Planner HEARING DATE: November 20, 2012 and December 4, 2012 RECORD CLOSED: January 11, 2013 1. STANDARDS AND APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Chapter 18.60, Rural Residential Zone (RR-10) 18.60.030, Conditional Uses Permitted 18.60.040, Yard and Setback Requirements 18.60.060, Dimensional Standards 18.60.070, Limitations on Conditional Uses Chapter 18.116, Supplementary Provisions 18.116.250, Wireless Telecommunications Facilities Chapter 18.128, Conditional Use 18.128.015, General standards governing conditional uses 18.128.340, Wireless Telecommunications Facilities II. FINDINGS OF FACT: A. LOCATION: The subject property has an assigned address of 25070 Alfalfa Market Road, Bend, and is identified on County Assessor's Map 17-14-29, as tax lot 600. B. ZONING: The subject property is zoned Rural Residential (RR-10), and is designated rural residential exception area by the Deschutes County Comprehensive Plan. C. LOT OF RECORD: The subject property is a legal lot of record pursuant to being lot 33 Send Cascade View Estates Unit 2. D. SITE DESCRIPTION: The subject property is approximately 5 acres and slopes gently up at the front of the property from south to north. There is an existing dwelling, accessed from a driveway extending north from Alfalfa Market Road. The site contains a very sparse cover of juniper trees. CU-12-15 - American Tower There are also loafing sheds for horses, as well as an existing fenced area for horses in the front half of the property. E. SURROUNDING LAND USES: Surrounding properties are predominantly zoned rural residential and are developed with rural residences and small-scale farms. F. PROPOSAL: The applicant is proposing to install a new wireless communication facility consisting of a 100-foot free-standing steel monopole with antennas, microwave disb, electric and phone utilities, and a 12' by 20' prefab equipment shelter inside a 50' by 60' fenced leased area. G. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the land use application to several public agencies and received the following responses: County Transportation Planner: I have reviewed the transmittal materials for a proposed cell tower in the RR-10 zone at 25070 Alfalfa Market Road, Bend, aka 17-14-29, tax lot 600. The cell tower will not generate 50 new weekday trips, therefore no traffic study is required based on the thresholds set by Deschutes County Code 17.16.115(C)(4). Similarly, as the site will not consume any road capacity as outlined in BOCC Resolution 2008-069, no transportation system development charge is required. Finally, the tower will not intrude into any of the imaginary surfaces described in the Airport Safety (AS) Combining Zone at DCC 18.80. County Building Safety Division: The Deschutes County Building Safety Division's code required access, egress, setbacks, fire and life safety, fire fighting water supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All building code required items will be addressed when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. County Road Department, Pacific Power and Light, Avion Water Company: No comment responses. No responses were received from: Bend Cable Communications, County Assessor, Cascade Natural Gas, Central Electric Cooperative, Centurylink. H. PUBLIC COMMENTS: The Planning Division sent notice of the proposed land use application and public hearing to all property owners within 1,000 feet of the subject property. A few responses to the notice were received prior to the date the staff report was issued. The letters expressed concern over the visual impacts of the proposed facility, effect on the property values, lighting of the cell tower, and were opposed to the proposal. Those letters were made part of the record. 1. PROCEDURAL HISTORY: The conditional use application was submitted on October 8, 2012. The application was accepted and deemed complete on November 7, 2012. The initial public hearing was scheduled for November 20, 2012. Prior to that date, the applicant requested that the hearing be continued. The Hearings Officer opened the hearing on November 20, 2012, and explained that there was a continuance request, and that anyone desiring to testify that evening could do so, or could wait until the next hearing. No person sought to testify at the hearing. Thereafter, the hearing was continued to December 4, 2012 at 6:30 p.m. CU-12-15 - American Tower 2 Prior to the December 4, 2012 hearing, opponents of the application submitted numerous letters urging denial of the application primarily due to negative impacts on scenic views and the perceived incompatibility of the proposed tower with the surrounding rural residential uses. The continued public hearing was held on December 4, 2012. All exhibits and records of testimony are filed with the Planning Division. At the beginning of the hearing, the Hearings Officer made the declarations required by ORS 197.763. The Hearings Officer disclaimed any ex parte contacts, bias or conflicts of interest. The Hearings Officer stated that the only relevant criteria were those identified in the staff report, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver of arguments at subsequent appeal forums. Relevant testimony given at the bearing is discussed below. During the hearing, the applicant and opponents requested that the written record remain open. The Hearings Officer set the following schedule: participants could submit argument and evidence on any issue prior to December 21, 2012, 2) responsive argument and evidence would be accepted until January 4, 2013, and 3) the applicant's final argument was due January 11, 2013. Again, prior to the January 4, 2013 deadline, numerous letters were submitted by opponents of the application. The applicant also submitted a response letter dated January 4, 2103. One argument raised by attorney Bruce White warrants mention here. In his January 4, 2013, letter he argues that the applicant has proposed an alternative location for the proposed tower on the subject property - and that the proposal constitutes a modification of the application under DCC 22.04.020 and DCC 22.20.055. The applicant responded that the alternate location could be blessed by the Hearings Officer through a condition of approval. Based on the findings and conclusions discussed below, it is not necessary to determine whether the alternate location constitutes a modification of the application. The applicant submitted a final argument on January 11, 2013. On the same day, Mr. White submitted a letter objecting to the applicant's suggestion that a detailed landscape plan could be allowed as a post-hearing submittal through a condition of approval. He argued that such a landscape plan should have been subjected to public scrutiny through the hearing process, and that the record did not contain substantial evidence that such a condition would be feasible. Again, based on the findings and conclusions discussed below, it is not necessary address this argument. The record closed on January 11, 2013. III. CONCLUSIONS OF LAW: A. Chapter 18.60, Rural Residential (RR-10) Zone 1. Section 18.60.030, Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: U. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC 18.116.250(A) or (B). FINDING: Deschutes County Code 18.04.030 defines wireless telecommunications facility as: "an unstaffed facility for the transmission or reception of radio frequency (RF) signals usually consisting of an equipment shelter, cabinet or other enclosed structure containing electronic equipment, a support structure such as a self-supporting monopole or lattice tower, antennas, microwave dishes or other transmission and CU-12-15 - American Tower reception devices. This definition includes "personal wireless services facilities" as defined under the Telecommunications Act of 1996. The applicant is proposing a wireless telecommunications facility for cellular phone service, as defined above. The proposal is for a 100-foot high free-standing steel monopole, with antennas, microwave dish, electric and phone utilities and a prefab equipment shelter. Cellular communica-tions facilities are allowed in the RR-10 zone. The proposed facility is considered a Tier 3 facility. 2. Section 18.60.040, Dimensional Standards In an RR-10 Zone, the following yard and setbacks shall be maintained. A. The front setback shall be a minimum of 20 feet from a property line fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 50 feet from an arterial right of way. FINDING: Alfalfa Market Road is a designated arterial street. The minimum setback is 50 feet as listed above. The proposed setback for the monopole and ground equipment closest to the road is shown to be at least 60 feet, meeting the 50-foot setback. B. There shall be a minimum side yard of 10 feet for all uses, except on the street side of a corner lot the side yard shall be 20 feet. FINDING: The proposed side setbacks are shown to be approximately 30 feet from the west property line, and 100 feet from the east property line, meeting the 10-foot minimum. C. The minimum rear yard shall be 20 feet. FINDING: The submittal indicates that the rear setback will be approximately at least 900 feet from the north property line, meeting the standard. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. FINDING: Staff found, and the Hearings Officer agrees, that a wireless telecommunications monopole is not subject to the solar standards under DCC 18.116.180, which is listed as "Building Setbacks for the Protection of Solar Access. Solar Access is defined under DCC 18.04.030 as: "protection from shade for a specific area during specific hours and dates, but not including protection from shade cast by exempt vegetation." Shade is defined as: "a shadow, except a shadow caused by a narrow object, including, but not limited to, a utility pole, an antenna, a wire or a flagpole." A wireless telecommunications monopole can reasonably be considered a "narrow object" that would be exempt from solar access requirements. This view is consistent with the hearings officer's decision in CU-11-14. That decision discussed the difference between a "monopine" and a "monopole," and determined that a monopine does not constitute a narrow object, but a monopole does. E. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: Staff concluded, and the Hearings Officer agrees, that no greater setbacks would be required by applicable building or structural codes adopted by the State of Oregon or the County. CU-12-15 - American Tower 4 3. Section 18.60.060, Dimensional Standards In an RR-10 Zone, the following dimensional standards shall apply: A. Lot Coverage. The main building and accessory buildings located on any building site or lot shall not cover is excess of 30 percent of the total lot area. FINDING: Staff found, and the Hearings Officer agrees, that the proposed monopole is not a building, which is defined under DCC 18.04.030 as "a structure built for support, shelter or enclosure of persons, animals, chattels or property of any kind" The monopole would not be used for support, shelter or enclosure of persons, animals, chattels or property. The existing dwelling, according to the County Assessor's records is 1,704 square feet in size. The existing loafing shed is approximately 400 square feet in size. The proposed equipment shed is 240 square feet in size. The total area taken up by buildings would be 2,344 square feet. The subject property is approximately 5 acres in size (217,800 square feet). The total lot coverage would be approximately 1 percent, well below the 30 percent standard. B. Building Height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: Prior hearings officer decisions have determined that the height limit under DCC 18.128.340(A)(1) supersedes the 30-foot height limit above. See file nos. CU-08-86, CU-09-14, CU-09-53, CU-11-14 incorporated into the record. C. Minimum lot size shall be 10 acres, except planned and cluster developments shall be allowed an equivalent density of one unit per 7.5 acres. Planned and cluster developments within one mile of an acknowledged urban growth boundary shall be allowed a five-acre minimum lot size or equivalent density. For parcels separated by new arterial rights of way, an exemption shall be granted pursuant to DCC 18.120.020. FINDING: The minimum lot size in this instance is not applicable to the proposed use, since the subject property is a legal lot of record and platted as part of the Bend Cascade View Estates subdivision. 4. Section 18.60.070, Limitations on Conditional Uses The following limitations shall apply to uses allowed by DCC 18.60.030: A. The Planning Director or Hearings Body may require establishment and maintenance of fire breaks, the use of fire resistant materials in construction and landscaping, or may attach other similar conditions or limitations that will serve to reduce fire hazards or prevent the spread of fire to surrounding areas. B. The Planning Director or Hearings Body may limit changes in the natural grade of land, or the alteration, removal or destruction of natural vegetation in order to prevent or minimize erosion or pollution. FINDING: Staff found, and the Hearings Officer agrees, that the proposed wireless telecommunications facility will not create a need for fire breaks, and will also not create a fire hazard. The materials used for the facility would all be fire resistant, preventing the spread of wildfire based on its construction. B. Chapter 18.116, Supplementary Provisions CU-12-15 - American Tower 1. Section 18.116.250, Wireless Telecommunications Facilities C. Tier 3 Facilities. Wireless telecommunications facilities (or their equivalent uses described in the EFU, Forest and SM Zones) not qualifying as either a Tier 1 or 2 facility may be approved in all zones, subject to the applicable criteria set forth in DCC 18.128.330 and 18.128.340. 1. A request for a written determination from the County as to whether a proposed facility falls within Tiers 1 or 2 of DCC 18.116.250 shall be submitted to the County in writing and accompanied by a site plan and proposed schematics of the facility. If the County can issue a written determination without exercising discretion or by making a land use decision as defined under ORS 197.015(10), the County shall respond to the request in writing. 2. A request for a written determination from the County as to whether a proposed facility falls within Tiers 1 or 2 of DCC 18.116.250 that involves exercising discretion or making a land use decision shall be submitted and acted upon as a request for a declaratory ruling under DCC 22.40. FINDING: There is no dispute as to whether the proposed facility is a Tier 3 facility. The applicant applied for a conditional use permit for the Tier 3 standard. C. Chapter 18.128, Conditional Use 1. Section 18.128.015, General standards governing conditional uses. Except for those conditional uses permitting individual single-family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The staff report states that the subject property is relatively flat and has a sparse coverage of juniper trees which are generally 20 feet or less in height. Staff did not find the typography or the soils on the subject property would prohibit the use. Staff found that the design and operating characteristics are typical of cellular telecommunications facilities and would be suitable for the site. Opponents of the application argue strenuously that this provision should be read to include a consideration of whether the subject property contains sufficient vegetative cover to provide screening for the facility. If trees and topography are insufficient to hide the proposed tower from view, they argue, then the site should be considered unsuitable due to its visual impact on surrounding properties. Prior hearings officer's decisions have treated this provision as requiring an analysis of whether the site itself is capable of accommodating a tower, associated equipment cabinets, and required fencing and landscaping - CU-08-79, M-11-14, CU-09-36. I concur with that prior analysis. If the provision was intended to encompass a suitability factor as viewed from surrounding properties there should he language indicating that intent. Such language is absent, and stretching the definition of "suitable" to imply such a requirement would violate ORS 174.010. CU-12-15 - American Tower 6 2. Adequacy of transportation access to the site; and FINDING: Access for the site is directly from Alfalfa Market Road, which is a paved county maintained rural arterial. The County Road Department had no comments on the proposed use, and the County Transportation Planner indicated that the use will not consume any road capacity. The proposed tower and equipment cabinets would be in unmanned facility needing only periodic maintenance visits. Staff found, and T agree, that access to the site will be adequate for the proposed use. 3. The natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. FINDING: Staff made the following findings under this criterion: The natural and physical features of the site include primarily the existing trees, as well as open space, and the natural topography. The level topography of the front portion of the subject property appears to be adequate for the installation of a telecommunications facility. The site plan indicates the construction of the telecommunications facility will require the removal of one existing tree. There are no identified or observable natural hazards associated with the property, based on two staff site visits to the property. The applicant is proposing to retain the natural resource values of the vegetation, and open space of the site. The proposed facility will impact less than one-quarter acre of the 5-acre property. Again opponents argue that this provision should be read to consider whether the proposed site possesses characteristics which would enable a tower to be screened from view of nearby residences. For the same reasons discussed in DCC 18.128.015(A)(1), the Hearings Officer concludes that this provision applies to the subject property itself and does not contemplate suitability as viewed from surrounding properties. Here, the "natural and physical features of the site" indicate that the subject property can accommodate a tower and associated equipment cabinets. This criterion is met. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in (A) above. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that he standard will be met. FINDING: Staff made the following findings with respect to this criterion: Staff believes that the proposed facility would have a substantial visual impact on the adjacent privately owned land, especially the closest properties to the west, north and south of the subject property. The surrounding area has only a sparse cover of juniper trees, and the proposed monopole would be approximately five (5) times the height of the tallest existing trees in the area, which staff estimates to be approximately 20 feet. Staff believes that the proposed facility would not inhibit the ability of property owners to build dwellings or any accessory structures. The nearby property owners have expressed concern over the visual impacts of the monopole. Staff believes that the telecommunications facility would not be compatible with the existing development, based on the "site" criterion above. The proposed monopole will stand out significantly from the surrounding vegetation and development, and staff believes it would be the focal point of any person driving by or living in the area. CU-12-15 - American Tower 7 Opponents of the application vigorously agreed with Staffs conclusions arguing that the lack of available vegetation to screen the tower from view makes the proposed use incompatible with existing and projected uses on surrounding lands. Prior hearings officer's decisions have construed this provision to require that the existing and projected "uses" on surrounding lands will be allowed to continue if the proposed telecommunications facility were approved- CU-11-14, CU-08-79. I agree with that analysis. This criterion is concerned with permitted and conditional uses allowed under the development code, not with surrounding property owners' enjoyment of their land. I explained this distinction in CU-09-36 as follows: I understand the neighbors' concerns about the appearance of the tower in their neighborhood. However, the existence of the tower will not so much affect the use, but the enjoyment of their properties. This criterion is concerned mainly with making the proposed use compatible with other uses. There is no evidence in the record that the proposed monopole will impact the ability of current neighbors to use their properties for all the residential and associated uses that they now enjoy. This finding applies equally to the current application. The surrounding lands are primarily rural residential lands consisting of homes, outbuildings and perhaps some small hobby farm type uses. There is nothing inherent about the presence of a cell tower which would prevent those rural residential uses from continuing. Staff is correct that "the proposed facility would not inhibit the ability of property owners to build dwellings or any accessory structures"- and that conclusion is sufficient to show compliance with this criterion. The fact that the tower may be aesthetically displeasing to surrounding residents is outside the scope of consideration of this provision. 2. Section 18.128.040, Specific Use Standards A conditional use shall comply with the standards of the zone in which it is located and with the standards and conditions set forth in DCC 18.128.045 through 18.128.370. FINDING: The proposed cellular telecommunications facility is subject to the standards listed below. 18.128.340, Wireless Telecommunications Facilities. An application for a conditional use permit for a wireless telecommunications facility or its equivalent in the EFU, Forest, or Surface Mining Zones shall comply with the applicable standards, setbacks and criteria of the base zone and any combining zone and the following requirements. Site plan review under DCC 18.124 including site plan review for a use that would otherwise require site plan review under DCC 18.84 shall not be required. A. Application Requirements. An application for a wireless telecommunications facility shall comply with the following meeting, notice, and submittal requirements: 1. Neighborhood Meeting. Prior to scheduling a pre-application conference with Planning Division staff, the applicant shall provide notice of and hold a meeting with interested owners of property nearby to a potential facility location. Notice shall be in writing and shall be mailed no less than 10 days prior to the date set for the meeting to owners of record of property within a. One thousand three hundred twenty feet for a tower or monopole no greater than 100 feet in height, and CU-12-15 - American Tower b. Two thousand feet for a tower or monopole at least 100 feet and no higher than 150 feet in height. Such notice shall not take the place of notice required by DCC Title 22. FINDING; The application includes a copy of a notice for a public meeting dated March 7, 2012 for a neighborhood meeting that was held on Wednesday, March 21, 2012. There is a certificate of mailing indicating it was mailed on March 7, 2012. According to this information the notice was mailed at least 10 days ahead of the March 21" meeting. The applicant indicates that the distance that was used for the mailing to all property owners was 2,000 feet. The mailing list sent out for the notice of meeting includes 36 different property owners. 2. Pre-Application Conference. Applicant shall attend a scheduled pre- application conference prior to submission of a land use application. An application for a wireless telecommunications facility permit will not be deemed complete until the applicant has had a pre-application conference with Planning Division staff. FINDING: The proposal meets this criterion because the applicant submitted a statement that indicates the applicant attended a pre-application meeting with staff on March 22, 2012. The staff report verifies that this pre-application meeting occurred. 3. Submittal Requirements. An application for a conditional use permit for a wireless telecommunications facility shall include: a. A copy of the blank lease form. FINDING: The proposal meets this criterion because it includes a copy of a blank lease form (lease agreement), attached as exhibit 8 to the submittal. b. A copy of the applicant's Federal Communications Commission license. FINDING: Staff found that "in this instance is American Tower, which does not have the FCC license. Staff believes that there needs to be a condition added that the proposed tower cannot be approved without a formal (and final) written agreement between American Tower and New Cingular Wireless PCS, LLC, and a copy of that agreement submitted to the Planning Division prior to issuance of any building permit for the proposed tower. Without that formal connection, and the applicant not having the FCC license, this application would have to be denied." The opponents amplified this conclusion and argued strenuously that the application was not complete because a copy FCC license was not included in the application. The applicant responds that this provision could be adequately addressed by a condition of approval requiring submission of the FCC license. Because the Hearings Officer has determined that this application should be denied on other grounds, compliance with this criterion is not determinative in this case. However, the record shows a sufficient factual connection between the applicant and New Cingular Wireless to support a condition as the applicant has suggested. C. A map that shows the applicant's search ring for the proposed site and the properties within the search ring, including locations of existing telecommunications towers or monopoles. CU-12-15 - American Tower 9 FINDING: The staff report addresses this criterion as follows: The proposal includes maps labeled "Location Overview" and "Alfalfa - Search Ring," attached as part of exhibit 9 to the application. There is also a larger scale map of the area printed out in the County's LAVA mapping system, as well as a Google Earth map. The "Location Overview" map shows existing tower locations in relation to the proposed site on Alfalfa Market Road. Exhibit 9 also includes a letter from Karen Sullivan, RF Engineer for AT &T, for a radio frequency analysis. The analysis states: "We have researched other sites in the area for an existing structure to collocate AT T's wireless and microwave antennas and we found no towers or structures suitable for co- location that will meet the coverage objective for the area. A FCC ASR web search was conducted and the nearest existing tower is located at 44-04-15.7N, 121-09-51.7W, which is approximately 4.5 miles from the proposed Alfalfa site. 4.5 miles is too far out of the search ring to produce any positive effect in filling the gap in RF coverage. The new structure that we intend to locate on will be co-locatable to accommodate multiple wireless carriers' antennas." The search ring submitted by the applicant includes a relatively small area near and including the subject property. Staff believes that the applicant needs to state why this particular area served as the extent of the search ring, and why other areas beyond this area were not considered. Opponents argued that the search ring is too small to realistically capture all the potentially available properties for an adequate alternatives analysis. Consistent with the findings for DCC 18.124.340(B)(2) below I conclude that the search ring could have been expanded. However, because I find that the application fails to satisfy DCC 18.124.340(B)(2), it would be premature to necessarily conclude that the search ring initially proposed by the applicant was in error. d. A copy of the written notice of the required neighborhood meeting and a certificate of mailing showing that the notice was mailed to the list of property owners falling within the notice area designated under DCC 18.128.340(A)(1). FINDING: As indicated above, the application includes a copy of the March 7, 2012 notice of the March 21, 2012 neighborhood meeting. The application also includes a list of the owners of record of property falling within the notice area, of which there were 36 different owners mailed notice. And it includes a copy of County Assessor's map 17-14-29, which shows the 2000-foot notice area hand drawn on the map. The applicant also provided a certificate of mailing docu-menting that notice of the meeting was sent to these property owners. This criterion is met. e. A written summary of the neighborhood meeting detailing the substance of the meeting, the time, date and location of the meeting and a list of meeting attendees. FINDING: The application includes a sign-in sheet that indicates several persons showed up for the neighborhood meeting. The applicant submitted a written summary of the neighborhood meeting comments, which took place at the High Desert Community Grange located at 62855 Powell Butte Highway at 7:00 p.m. on March 21, 2012. This criterion is met. L A site plan showing the location of the proposed facility and its components. The site plan shall also identify the location of existing and proposed landscaping, any equipment shelters, utility connections, and any fencing proposed to enclose the facility. CU-12-15 - American Tower 10 FINDING: The application includes a site plan that shows the lease area on site, including the ground equipment and monopole, the utility connections, as well as the surrounding cyclone fence and gate. The site plan shows trees being planted on three sides (west, north and east) of the fenced area. The site plan indicates introduced juniper trees. g. A copy of the design specifications, including proposed colors, and/or elevation of an antenna array proposed with the facility. FINDING: The application includes drawings of the proposed monopole and antennas, and the proposed ground equipment area. The applicant's burden of proof statement indicates on page 9 that the proposed pole color would be "Environmental Green by Sherwin Williams or other color selected by Deschutes County as appropriate" The burden of proof also states that the pole and antennas will be painted in the same non-reflective color. h. An elevation drawing of the facility and a photographic simulation of the facility showing how it would fit into the landscape. FINDING: The application includes an elevation drawing of the proposed monopole (drawing A-4). The applicant has submitted a photographic simulation of the monopole showing how it would fit into the landscape, as depicted in exhibit 6. The photographic simulations are taken from four locations, as depicted on the aerial photo attached to each of the four pages. L A copy of a letter of determination from the Federal Aviation. Administration or the Oregon Department of Transportation - Aeronautics Division as to whether or not aviation lighting would be required for the proposed facility. FINDING: The applicant has submitted letters from both the Federal Aviation Administration dated November 2, 2011, and Oregon Department of Aviation' dated February 21, 2012, indicating that the proposed monopole would not be a hazard to air navigation, and lighting is not necessary for construction and operation. B. Approval Criteria: An application for a wireless telecommunication facility will be approved upon findings that: 1. The facility will not be located on irrigated land, as defined by section 18.04.605 of this title. FINDING: Staff found, and the Hearings Officer agrees, that the proposal meets this criterion because it shows the facility will not be located on irrigated land. Section 18.04.030 of the County Code defines the term irrigated as "watered by an artificial or controlled means, such as sprinklers, furrows, ditches or spreader dikes." This definition goes on to state, "an area or tract is "irrigated" if it is currently watered or has established rights to use water for irrigation from a water or irrigation district or other provider." Staff observed during a site visit that the subject property was not being watered by any of the artificial or controlled means identified in the above-referenced definition. This criterion is met. 2. The applicant has considered other sites in its search area that would have less visual impact as viewed from nearby residences than the site ' The State of Oregon has changed the name of the agency to the Oregon Department of Aviation. CU-12-15 - American Tower 11 proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co-locate its antennas on existing monopoles in the area to he served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co- location within the area to be served, FINDING: Based on the information available prior to the initial public hearing Staff made the following findings in response to this criterion: The application includes exhibit 9, a letter from Karen Sullivan, RF Engineer, which states: "We have researched other sites in the area for an existing structure to collocate AT & T's wireless and microwave antennas and we found no towers or structures suitable for co-location that will meet the coverage objective for the area. A FCC ASR web search was conducted and the nearest existing tower is located at 44-04-15.7N, 121-09-51.7W, which is approximately 4.5 miles from the proposed Alfalfa site. 4.5 miles is too far out of the search ring to produce any positive effect in filling the gap in RF coverage. The new structure we intend to locate on will be co-locatable to accommodate multiple wireless carriers' antennas." The burden of proof also lists a total of 18 sites that were considered for the proposed facility, five of which are zoned EFU. The applicant is correct in that placing a telecom-munications facility in the Exclusive Farm Use zone has a much higher burden. And with the adjacent RR-10 zone, it is unlikely that a facility could be approved in the EFU zone. Staff believes that the applicant has considered other sites in the search area, and has determined that they would not have less visual impact from nearby residences. Several appear to be unavailable based on the owners not being interested in siting a telecommunications facility on their land. As stated above, staff believes that the EFU zoned properties have a much higher burden for locating a facility, and with the adjacent RR-10 land, it is unlikely a facility could be approved in the EFU zone. Opponents of the application submitted a significant amount of testimony and evidence critical of the applicant's alternative sites analysis. A November 12, 2012 letter from Mr. White argues that additional alternative sites exist, for example locations along Elk Lane and transmission lines along that road, and a property owned by the Oregon Division of State Lands. Opponents claim that the search area chosen by the applicant is insufficient both in size and for the reason that it does not identify enough nearby EFU zoned lands which could reasonably meet the applicant service needs. As to the DSL parcel, Mr. White provides specific arguments asserting that the property would be more protective of scenic views than the subject property. He argues that alternative locations both on the eastern or western edge of the property represent advantages for preserving scenic views superior to the subject property. He also argues that the transmission lines along Elk Lane, which is near the DSL property already impact scenic views and that the proposed tower could be located such that the additional impact of the cell tower would be reduced if located in that area. In his December 21, 2012 letter, Mr. White also argues that the applicant should have considered locating the needed wireless antennas on one of the existing transmission line towers along Elk Lane - in essence extending the height of one of those towers. He gives an example of where this technique is been used elsewhere in the County. The applicant makes a limited response to the opponents' arguments regarding alternative sites, and acknowledges that the DSL property is both available for lease, and would satisfy the applicant's service CU-12-15 - American Tower 12 needs. Applicant's attorney Mark Shipman's argues in his January 4, 2013 letter that the opponents insist that any tower on the DSL property be located at the base of the ridge that runs through it. He argues that such a location would not fulfill the applicant's service needs, and that a tower at the top of the ridge would likely impact the views of more of the surrounding residents than would the subject property. The essence of the applicant's argument is that the combination of the coverage requirements and ability to mitigate impacts on the views makes the DSL property a third tier location compared to the location applied for on the subject property and the alternative location to the north end of the subject property. Prior hearings officer's decisions have interpreted DCC 18.128.340(B)(2) to require both a search for co- location opportunities and a search for alternative sites that "would have less visual impact as viewed from nearby residences than the site proposed." Former hearings officer Gerald Watson, in CU-11-14, concluded that this criterion requires an applicant to consider alternatives suggested by opponents based on the holdings in T-Mobile USA v. City ofAnacortes, 572 F.3'd 987 (9a` Cir. 2009) Van Nalts v. Benton County, 42 Or LUBA 497, 499 (2002). I agree with that analysis. For the reasons set forth below, the hearings officer agrees with the opponents. First, the applicant's burden of proof does not appear to consider the alternative of utilizing the existing transmission lines along Elk Lane, and the applicant does not respond to this suggestion in post hearing submissions. Second, the applicant does not respond to the opponents' suggestion that the tower might be located on the DSL property in a way that only incrementally impacts views from nearby residences which are already impacted by those transmission lines. Third, the applicant's dismissal of the DSL property does not adequately respond to the opponents' reasons for suggesting that property as an alternative. The record shows that the DSL property is fairly large and varied in terrain compared to nearby lands. The argument submitted by the applicant does not demonstrate a serious attempt to find a location on the DSL property that both satisfies the RF needs and mitigates impacts on scenic views. Instead, the applicant posits a spectrum of potential locations populated only by a location at the bottom of the ridge and a location at the top of the ridge. Predictably, those locations are deemed unsatisfactory due to limitations in coverage or impacts on scenic views. Opponents identified locations both on the west side and the east side of the property that might represent lesser visual impacts to surrounding residence, but the applicant does not seriously respond to those suggestions. The record provides sufficient substantial evidence to suggest that many other alternative locations within the DSL property could satisfy the primary component of DCC 18.128.340(B)(2) which is to show that "any less intrusive sites are either unavailable or do not provide the communications coverage necessary." For these reasons I find that the application does not comply with this criterion. One other issue merits discussion under this criterion. Opponents argued that the search ring of alternative sites should have included more properties zoned EFU. The applicant did consider a few EFU zoned parcels. However, both staff and the applicant concluded that the substantially higher burden of proof required to locate a telecommunications facility on EFU land made a larger analysis of those lands unreasonable in light of the fact that other non-resource lands were president within the search ring. I can find no error in an applicant's desire to avoid what would ordinarily be a futile alternatives analysis of nearby EFU lands. However, in circumstances such as this one where the record shows that negative visual impacts of a proposed tower, including the impacts to scenic views protected under DCC 18.128.340(B)(5), are largely unavoidable and likely to be experienced by a significant number of nearby residents, a larger search ring including EFU lands should be considered. The reason the Hearings Officer offers these observations is in connection with the applicant's request, made in Mr. Shipman's December 21, 2012 letter, that if the application must be denied due to unacceptable visual impacts that: CU-12-15 - American Tower 13 Alternatively, the applicant requests a hearings officer to specifically find that the requirements of ORS 215.275(2)(c) and DCC 18.16.038(Ax3) are satisfied. Specifically, that no available property within the search ring and within the RR-10 zone has less visual impact on surrounding residences than the proposed site. Therefore as a matter of law, the hearings officer establishes by negative implication that the urban and non-resource lands are unavailable under ORS 215.275(2)(c) and DCC 18.16.038(Ax3). The statute, and DCC 18.16.038(A)(3) impose a threshold test for allowing a utility facility to be located on EFU land. That test is as follows: A. A utility facility necessary for public use allowed under DCC 18. 16.025 shall be one that is necessary to be situated in an agricultural zone in order for service to be provided. To demonstrate that a utility facility is necessary, an applicant must show that reasonable alternatives have been considered and that the facility must be sited in an exclusive farm use zone due to one or more of the following factors: 3. Lack of available urban and nonresource lands; The applicant is asking the Hearings Officer to reach two conclusions with regard to this request. First, that demonstrated negative visual impacts on surrounding properties can render urban and non-resource lands "unavailable" for a proposed telecommunications facility under DCC 18,16.038(A)(3). Second, that the current application has demonstrated that surrounding RR-10 zoned land is unavailable for the proposed tower due to visual impacts. In this instance, I can reach the first conclusion but not the second. Neither the state statute nor DCC 18.16.038(A)(3) articulate the scope of the term "available" Webster's Third New International Dictionary defines "available" as: "3: such as may be availed: capable of use for the accomplishment of a purpose, immediately utilizable" It is possible to imagine many legitimate reasons why urban or rural residential lands might be unavailable for a proposed telecom-munications facility. At minimum, "available" does not simply refer to lands which are available "for purchase or lease" because the statute omits those additional words. In view of the multiple references in DCC 18.128.340 directed at protecting scenic views and screening a proposed facility from the view of nearby residents, it is reasonable to construe ORS 215.275(2)(c) and DCC 18.16.038(A)(3) to be met when negative visual impacts on surrounding non- resource lands cannot be avoided or reasonably mitigated. However, consistent with the findings above, I cannot fund that the applicant has established that the DSL property and potential locations along Elk Lane are not "available" because they represent negative visual impacts, including impacts on scenic views under DCC 18.124.340(B)(5). If the applicant were to adequately respond under DCC 18.124.340(B)(2) and determine that those locations actually have similar negative impacts as compared to the proposed tower location, it would be appropriate to conclude that those locations, in addition to the other alternative sites identified in the burden of proof, are not "available" for the purposes of DCC 18.16.038(A)(3). 3. The facility is sited using trees, vegetation, and topography to the maximum extent practicable to screen the facility from view of nearby residences. FINDING: Staff made the following findings in response to this criterion: CU-12-15 - American Tower 14 Staff believes that the proposed monopole will be visible from many of the nearby residences in Send Cascade View Estates. The area has a very sparse cover of juniper trees at varying heights, none of which appear to exceed 20 feet. Staff believes that the proposed monopole will cannot be screened based on the location in an area with scattered trees no more than 20 feet tall. The question arises as to what would constitute the maximum extent practical. Staff believes that, based on previous hearings officer's decisions (CU-08-86, CU-09-14, CU-09-53, CU-11-14), this would refer to screening on and around the subject property. With the subject property and other surrounding properties having little vegetation, there does not appear to be another location on the property where the telecommunications facility would have more screening. It appears that the facility will be screened to the maximum extent practicable on the subject property. The Hearings Officer has reviewed those prior hearings officer's decisions and agrees with Staff. I sympathize with the opponents' argument that this provision is functionally meaningless in a fact situation such as the current application. However, the words "maximum extent practicable" do not mean that all visual impacts must be eliminated even considering that the record clearly establishes that existing trees, vegetation and topography will essentially fail to screen the tower from view of nearby residences. 4. A tower or monopole located in an LM Zone is no taller than 30 feet. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. FINDING: The subject property is not within the LM zone. This criterion does not apply. 5. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. FINDING: In response to this criterion the Staff found: The above language requires that towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. Staff believes that this area does not have much in the way of vegetative or structural screening available, and has only a few areas where there may be topographic screening available. Staff believes that under the last sentence of "5" above, this criterion was directed at sites like the one proposed, which essentially have no vegetative, structural or topographic screening available. Staff believes that this criterion has not been met. Opponents submitted abundant argument and photographs of the area which support Staff s interpretation of this section. Their argument is that the juniper trees in the area are both sparse in number and short in stature, providing no meaningful ability to screen a 100' tower. In his December 21, 2012 letter Mr. White snakes a number of arguments. First, the provision is meant to apply "in all cases." Second, the provision is concerned with protecting "scenic views." Third, the provision does not apply solely to "protected roadways." Fourth, that the second sentence of the provision sets out a hard constraint related to satisfying the performance standards set out in the first sentence. Finally, that the term "locations" in the second sentence of the provision is related to potential vegetative screening at the actual location of the proposed tower. CU-12-15 - American Tower 15 The applicant argued throughout the proceeding that no location on any property in the immediate vicinity would completely eliminate visual impacts. This line of argument is best summed up by the applicant's final comment on the matter: The opponents would lead you to believe that this criterion should be treated as an absolute bar, such that if any portion of the tower was visible from any property, road, or trail, that the proposed tower facility be denied because there is going to be a scenic view of something - Paulina, Horse Ridge, the Cascades, Mount Adams, territory in surrounding area[s] beyond the tower facility. However, nothing in DCC 18.128.340B requires that all scenic views of any nature be protected rather the code speaks in terms of minimizing the impact on scenic views. Such language contemplates that scenic views can be impacted but that the applicant must use their best efforts to minimize such impacts. In an attempt to better understand the meaning of DCC 18.128.340(B)(5) the Hearings Officer reviewed several prior hearings officer decisions. To my knowledge, this provision has never been the central focus of a telecommunications facility decision. To that extent, the hearings off'icers' decisions, including several of my own, have been somewhat inconsistent in the application of this section. In prior applications that I have considered, CU-09-14, CU-09-182 and CU-09-36, substantial evidence in the record showed that sufficient screening in the form of either structures, or tall trees such as Ponderosa Pine or Aspen, had the potential to reasonably screen the proposed tower. The factual basis in former hearings officer Gerald Watson's decision in CU-11-14 also showed sufficient tall tree cover to provide meaningful screening, although he denied the application on slightly different grounds. Similarly, former hearings officer Anne Corcoran Briggs, in CU-08-79, was able to conclude that DCC 18.124.340(B)(5) was met because the tower would be substantially screened by a 60 foot tall water tank and nearby trees. Hearings Officer Karen Green approved a similarly sized tower in CU-09-53 where no meaningful screening was available for the tower. However, the tower was proposed for a commercial zone in the middle of Terrebonne and she also found: The Hearings Officer finds it is significant that in spite of the county having sent notice of the applicant's proposal to property owners within 1,000 feet of the boundaries of the subject property - and in spite of the applicant having sent notice.of the neighborhood meeting (which no one attended) to property owners within 1,320 feet of the property only one person commented on the applicant's proposal. And that person's comments did not express concern about the appearance of the tower but rather about where it would land if it collapsed. In the absence of public opposition to the proposed facility on the basis of its appearance and visual impacts, I find it reasonable to conclude the Terrebonne community does not believe the proposed tower will be incompatible at its proposed location. These findings were also essentially incorporated by reference into her the findings for DCC 18.124.340(B)(5). This research shows that, at least in recent years, the question presented by this application has not been directly addressed in prior hearings officer's decisions. Nor has the band Use Board of Appeals or the Oregon Court of Appeals previously reviewed this provision. 2 In this decision, I determined that DCC 18.128.340(B)(5) applied only to "protected roadways." On closer review, I have determined that conclusion to be incorrect. Such a reading would render the phrases "in all cases" and "scenic views", as well as the entire second sentence of the provision meaningless. That result would violate both ORS 174.010 and 174.020. CU-12-15 - American Tower 16 With all the above resources exhausted, the meaning of DCC 18.128.340(B)(5) must fall back on the familiar methodology described in PGE v. BOLL, 317 Or 606, 611 (1993). That case tells us to first examine the text and context of the provision in question. As an initial matter, l agree with Mr. White that DCC 18.124.340(B)(5) is directed at "scenic views" and that all applications ("in all cases") are obligated to "minimize impacts" on scenic views. This is a different requirement than that imposed by DCC 18.124.340(Bx3) which is concerned with screening the proposed facility from nearby residences. The PGE methodology requires that a word or phrase be used as defined in the County code if there is such a definition. Although DCC 18.04.030 defines the term "scenic area" it does not define "scenic views." In absence of a definition in the code, the plain meaning of a word or phrase should be applied. Webster's Third New International Dictionary defines the adjective "scenic" as: "2a: of or relating to natural scenery - beauties." The noun scenery from which the word "scenic" is derived is defined as: "2a: a view of picturesque spots and expanses esp. in open country: the general aspect of a landscape: the array of impressive natural prospects and imposing features of a particular place [preferred - to historical landmarks] [mountain]: 3: a picturesque view or landscape * *93 From these definitions, the Hearings Officer concludes that DCC 18.128.340(Bx5) is only triggered where "scenic" views are present and will be interfered with by the presence of a telecommunications facility. DCC 18.128.340(B)(5) may not always be applicable because such views are not present, as in CU-09-36, or where the residents and other citizens that might be affected do not deem the views to be scenic, as was apparently the case in CU-09-14 and CU-09-53. However, that is not the case here. The record contains abundant testimony and evidence documenting the scenic views experienced by many nearby residents. Those views include, the open desert plateau, the Cascade Mountains, Horse Ridge, Pine Mountain and the Paulina Mountains.' Based on the above definitions, the Hearings Officer concludes that a reasonable person, and most particularly the people who have chosen to reside in the area, would conclude that those views are "scenic" for the purposes of DCC 18.128.340(B)(5). Once such scenic views have been identified, DCC 18.128.340(B)(5) requires that any proposed facility be sited "in a manner to minimize its impact on scenic views." The applicant argues that this provision contemplates that scenic views may be impacted by telephone communications facility. According to this reading, the obligation of the applicant would simply be to do the best job of protecting scenic views given the existing topography, terrain, and screening trees. Opponents argue that this provision is modified or conditioned by the second sentence in DCC 18.128.340(B)(5). The Hearings Officer concludes that the opponents' interpretation is correct. DCC 18.128.340(B)(5) is inartfully written and not entirely clear. However, two rules of construction require that the second sentence be enforced as written. The first rule is set forth in ORS 174.010 which states "where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all." The problem with the applicant's interpretation is that it reads the second sentence of DCC 18.128.340(B)(5) out of the provision completely, rendering it meaningless. The second applicable rule is set forth in ORS 174.020(2) which states, "[w]hen a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent." The first sentence of DCC 18.128.340(B)(5) appears to set a more relaxed standard than the second sentence. The second sentence uses the prohibition "shall not" which represents a much stricter standard than simply "minimize" Applying ORS 174.020(2), the second sentence of DCC 18.128.340(B)(5) 3 A typical example of the written testimony is a December 4, 2012 e-mail from Katya Spieker. The record contains abundant written and oral testimony from individuals whose views from their front room, deck, or yards contain similar scenery. CU-12-15 - American Tower 17 represents a particular intent to disallow the siting of telecommunication towers where there is no vegetation, structures or terrain to meaningfully screen the facility. For these reasons, I agree with Mr. White's position that the second sentence of DCC 18.128.340(B)(5) modifies the first sentence and places a constraint on the question of whether it is possible to site a tower in a way that minimizes impacts on scenic views. The remaining question is whether there is substantial evidence in the record showing that "no vegetative, structural or topographic screening" is available at the proposed site. Prior hearings officers' decisions have interpreted these words to require some meaningful or effective screening to be available on the site - CU- 09-53. The Hearings Officer agrees. Specifically, I do not interpret this provision to be triggered ggly where a proposed site is completely devoid of vegetation, structures or topographic features. The word "screening" is the focus of the sentence, and to be meaningful the vegetation, structures or topography must actually be effective at screening a proposed tower. Here, the record shows that the rural residential area in which the subject property is located contains a very sparse cover of short juniper trees. Both written and oral testimony estimated that the maximum height of the juniper trees is approximately 20 feet. The photographs in the record, including the applicant's attempts to simulate the visual impact of the tower, show that neither the existing vegetation, structures, nor topography will meaningfully screen the proposed tower. Although there is much discussion both by the opponents and the applicant of an alternative location on the subject property which might be marginally better than the primary location proposed for the tower, that location does not contain sufficient vegetation or topography to effectively screen the tower. Based on this substantial evidence, the Hearings Officer concludes that proposed tower cannot meet the requirements of DCC 18.128.340(B)(5) because "there is no vegetative, structural or topographic screening available." One final issue warrants discussion, which is a question the Hearings Officer raised at the December 4, 2012 hearing, to which both Mr. Mark Shipman and Mr. White were kind enough to provide the Hearings Officer with briefing.4 My question was whether the federal Telecom-munications Act ("TCA") or the County code mandate that a cell tower be allowed once a gap in coverage has been identified by the applicant, despite the fact that visual impacts on nearby residents or scenic views cannot be adequately mitigated. Both Mr. Shipman and Mr. White appear to agree that the TCA does not preempt local land-use laws. They also appear to agree that the 90' Circuit Court of Appeals decision MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (9th Cir. 2005) sets forth a test for determining whether a local government code effectively prohibits the provision of personal wireless services. However, they differ as to the forum in which that remed may be sought. Mr. Shipman implies that a local hearings officer can administer the test set forth by the 9` Circuit as part of the local land-use order. Mr. White argues that the test must be administered by the appropriate federal court under Section 332(7)(B)(v) of the TCA after the local government has reached a final land use decision. After reviewing MetroPCS, and the most recent iteration of that case that I can find, T Mobile West Corp. v. City of Huntington Beach_F.3d _(C.D. Cal., October 8, 2012), I agree with Mr. White. The local government must first reach a final determination denying a proposed telecommunication facility in order to provide the factual basis for any claim by an applicant that the government decision has effectively prohibited the provision of personal wireless services. It also appears that the local record in the matter provides at least the starting point for the federal court's analysis of whether an applicant can obtain relief under the TCA. 6. Any tower or monopole is finished with natural wood colors or colors selected from amongst colors approved by Ordinance 97-017. 4 This briefing appears in their December 21, 2012 letters to the Hearings Officer. CU-12-15 - American Tower 18 FINDING: The applicant has stated that color the monopole will be painted in Sherwin Williams Environmental Green. This criterion can be met. 7. Any required aviation lighting is shielded to the maximum extent allowed by FAA and/or ODOT-Aeronautics regulations. FINDING: As indicated in a foregoing finding, the application includes a letter from the FAA, as well as the Oregon Department of Aviation indicating that lighting of the facility is not required. This criterion is met. 8. The form of lease for the site does not prevent the possibility of co- location of additional wireless telecommunication facilities at the site. FINDING: The lease/agreement form submitted with the application allows the possibility of co-location under the Option to Lease section of the agreement. 9. Any tower or monopole shall be designed in a manner that it can carry the antennas of at least one additional wireless carrier. This criterion may be satisfied by submitting the statement of a licensed structural engineer licensed in Oregon-that the monopole or tower has been designed with sufficient strength to carry such an additional antenna array and by elevation drawings of the proposed tower or monopole that identifies an area designed to provide the required spacing between antenna arrays of different carriers. FINDING: The application materials include a letter dated September 12, 2012, from Kevin Arnold, Senior Construction Manager for American Tower which states: "Please use this letter as confirmation that American Tower will design and install a tower capable of supporting multiple tenants. American Tower's business model is based on this core principle. American Tower typically designs towers to accommodate up to 3 to 4 carriers on a regular monopole or self-support tower." This criterion could be met through a condition of approval. 10. Any approval for a wireless telecommunications facility shall include a condition that if the facility is left unused or is abandoned by all wireless providers located on the facility for more than one year the facility shall be removed by the landowner. FINDING: This criterion could be met through a condition of approval. W. CONCLUSION: Based on the above Findings of Fact and Conclusions of Law this application is DENIED. 4• A64 Kenneth D. Helm, Hearings Officer A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12) DAYS AFTER THE DATE OF MAILING, UNLESS APPEALED BY A PARTY OF INTEREST. Dated this I" day of March 2013 Mailed this I" day of March, 2013 CU-12-15 - American Tower 19 TF U Community Development Department 4 L Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette. Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 6ttP://WWW.co.dO-sth.ti.tes.or.us/cdd/ CERTIFICATE OF MAILING FILE NUMBER: CU-12-15 DOCUMENT/S MAILED: Hearings Officer's Decision MAPITAX LOT NUMBER: 17-14-29, 600 I certify that on the 1' day of March, 2013, the attached Hearings Officer's decision, dated March 1, 2013, was/were mailed by first class mail, postage prepaid, to the person(s) and address(es) set forth on the attached list. Dated this 1St day of March, 2013. COMMUNITY DEVELOPMENT DEPARTMENT By: Sher Buckner Rod Michealis Mark D. Shipman 1411 E. Pinecrest Road Saalfeld Griggs PC Spokane, WA 99203 Park Place, Suite 300 250 Church Street SE Salem, OR 97301 Bruce W. White, Attorney, LLC Mark and Laura Wilke P.O. Box 1298 25007 Kiwa Lane Bend, OR 97709 Bend, OR 97701 Addison and Connie Manley Margot Barron 1954 Gilham Road Rowan C. Holitz Eugene, OR 97401 62311 Dodds Road Bend, OR 97701 David Warren Brandon A. Olsen 25387 Elk Lane AT & T Mobility Bend, OR 97701 19801 SW 72nd Avenue #200 Tualatin, OR 97062 Quality Services Performed with Pride Larry White, Debra Elgas, Benjamin Elgas Carolyn Chase 25100 Alfalfa Market Road 24918 Bachelor Lane Bend, OR 97701 Bend, OR 97701 Wayne and Toni Morgan John and Patricia Devencenzi 62600 Dodds Road 62725 Juniper Road Bend, OR 97701 Bend, OR 97701 Frank Spiecker, Katya Spiecker and Cherie L. Appleby Gabriele Mimler 26295 Willard Road 25261 Alfalfa Market Road Bend, OR 97701 Bend, OR 97701 Kent Salyer David and Wendy Magers 62620 Juniper Road 26275 Willard Road Bend, OR 97701 Bend, OR 97701 Frank and Joyce Knoblock Kevin and Moriah White 25184 Alfalfa Market Road 25190 Alfalfa Market Road Bend, OR 97701-9337 Bend, OR 97701 Troy Lehr and Barbara Mendoza-Lehr Gonzalo and Yolanda Mendoza 24985 Bachelor Lane 25085 Alpine Lane Bend, OR 97701 Bend, OR 97701 Mike Lake Noel Anderson 25345 Alfalfa Market Road 24920 Deer Lane Bend, OR 97701 Bend, OR 97701 Susan Marshall Robert L. Warrenburg 63477 Greg Court 3078 NE Stanton Avenue Bend, OR 97701 Bend, OR 97701 Roberta Vallejo Erik Wendling 63818 Hunters Circle 25200 Alfalfa Market Road Bend, OR 97701 Bend, OR 97701 Lawrence Callegari Chris Davis 2620 NE Keats Drive 2247 SE Pilatus Lane Bend, OR 97701 Bend, OR 97702 Boyd Brown Linda McLaughlin 61877 Somerset Drive P.O. Box 8281 Bend, OR 97702 Bend, OR 97708 Jerry Oldridge Amanda McCarthy 60301 Woodside Loop 69223 Crooked Horseshoe Road Bend, OR 97702 Sisters, OR 97759 Colleen Puterbaugh Alice Tye 2203 SW 36th Ct. 25840 Alfalfa Market Road Redmond, OR 97756 Bend, OR 97701 Roger Beach Joyce Cranston 25263 Cultus Lane 25387 Elk Lane Bend, OR 97701 Bend, OR 97701 Cathy and Bryan Willis Greg and Lynne Shoffner 25252 Raven Lane 25231 Alfalfa Market Road Bend, OR 97701 Bend, OR 97701 Larry and Melodie Holliday Pat Anderson 24890 Alfalfa Market Road 24919 Bachelor Lane Bend, OR 97701 Bend, OR 97701 Loraine and Justin Green Doug Butler 26159 Willard Road 1870 NB Jackson Avenue Bend, OR 97701 Bend, OR 97701 Michele Anderson Ron and Deana Dye 25239 Cultus Lane 25700 Cultus Lane Bend, OR 97701 Bend, OR 97701 Kirk and Cynthia Carroll Linda Armenta P.O. Box 191 25050 Alfalfa Market Road Bend, OR 97709 Bend, OR 97701 Jim Raffensperger 62950 Deschutes Road Bend, OR 97701 i w TQDa i a io I rM _ ~ q r 1-7 --juAn-kit RD x N v 0 -b 12 b~A ~a U _N b D~ G~ O CL y3 i..a sa, JR H 0 ^l~ W y r, c~ Y 0 -V m 4- 0 r N Ol O ' N V 11 X I 41 ti w~ -37 Li, f- M Fa 1. L ~J 00 Qe- 1,ff I ~ C y Tl .F f vu~ U ~ ~ rJ ~a LLI f V 1, . J J ~r ~ r.J r ~ I 1 r r~ 0?09 br~~ / r i x E <D r 0 w d d 3 CY 1 o r~ U- ~~y u~ 3 C_ .:~apeaGe:r !x III d~ N 2= '44%41 r; Iil N ~k 3 m 7 0 %NO co IY III OF 2< U` !r o Ili Cl) 3 m u i J ao ilt V 3 4s r IA r 9i'i~ 1 ~ ~Ti11, 5 ! t sY t w lip ell oil a. A ~ I ttt 'i...d AL if 0, 'Wit T 'r a_ a - it, ±F,,~ ( } A sy a i 'or ~l'1. I~}~t ~ d ~+t~ '~~1 R'~1 •a • •1 f .1 y~.; •9fl P ~ 7 .,~}V ~11~. ? t ~ • ~'W { ;.N ~ Fes' ~ ~~„~x y~,~~ +k+ ai > v v ;`rte r 1 + 11111 + ' w.~ Ot . ttt y y~ l.M1~~ Y ( f P Fps _Y. cq s J4* 44 lAf~-< ~ b d ,ry ~ b' Illt O oil REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON A Resolution Expressing Support for Senate Bill 754, Modifying Provisions related to Public * RESOLUTION NO. 20--@ Employee Retirement. WHEREAS, Deschutes County is a public employer within the State of Oregon, and, as such, is a covered employer for the purposes of participating in the Public Employees Retirement System (PERS); and WHEREAS, Deschutes County will face a significant cost increase beginning July 1, 2013, related to PERS; and WHEREAS, without action by the 77th Session of the Oregon Legislative Assembly to enact meaningful modifications to PERS, these cost increases will result in budgetary reductions to County programs and services; and WHEREAS, Senate Bill 754 has been introduced for consideration before the 77th Session of the Oregon Legislative Assembly; and WHEREAS, Senate Bill 754 will modify PERS to reduce costs to all PERS-covered public employers and will provide public employees and retirees with an adequate and stable retirement benefit; and now, therefore, BE IT RESOLVED, that the Deschutes County Board of Commissioners or Deschutes County, Oregon strongly encourages the members of the 77t" Session of the Oregon Legislative Assembly to enact the provisions of Senate Bill 754. Dated this of , 20 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DeBONE, Chair ALAN UNGER, Vice Chair ATTEST: Recording Secretary TAMMY BANEY, Commissioner PAGE 1 OF 1 - RESOLUTION NO.20 -L 77th OREGON LEGISLATIVE ASSEMBLY-•2013 Regular Session Senate Bill 754 Sponsored by Senator KNOPP, Representative SPRENGER (at the request of Oregon School Boards Association) SUMMARY The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the measure as introduced. Modifies provisions relating to public employee retirement. Directs Public Employees Retirement Board to recalculate employer contribution rates to reflect savings attributable to Act. Provides for expedited review by Supreme Court upon petition by adversely affected party. Declares emergency, effective on passage. 1 A BILL FOR AN ACT 2 Relating to public employee retirement; creating new provisions; amending ORS 237.635, 237.637, 3 238.005, 238.285, 238.300, 238.360, 238.372, 238.374, 238.376, 238.378, 238.580, 238A.210, 238A.320, 4 292.180 and 314.840 and section 4, chapter 1, Oregon Laws 2010; repealing ORS 238.350 and 5 238.355; and declaring an emergency. 6 Whereas every Oregonian deserves to have a high-quality public education and to live in a safe 7 community and reasonably expects efficient and effective delivery of other needed public services; 8 and 9 Whereas the cost of Oregon's Public Employees Retirement System (PERS) is increasing at an 10 unsustainable rate and diverting billions of dollars away from schools and other critical services; 11 and 12 Whereas Oregon's schools have been forced to reduce instructional days, close schools and cut 13 approximately 7,000 teachers over the last three years despite increased state spending on educa- 14 tion; and 15 Whereas PERS is the largest single source of cost escalation driving these cuts; and 16 Whereas the annual cost of PERS is expected to increase significantly over the next decade or 17 more, placing at risk schools, public safety, the poor and seniors who depend on state assistance; 18 and 19 Whereas it is the responsibility of the Legislative Assembly to ensure that PERS is adequately 20 funded, rationally designed as one element of a reasonably competitive compensation arrangement 21 for public employees and sustainable for the sake of public employees, who may rely on PERS for 22 a material part of their retirement, and for Oregonians generally, who rightly expect the state to 23 use taxpayer dollars responsibly-, and 24 Whereas in 2011 the Governor proposed and the Legislative Assembly passed comprehensive 25 education reform based on the aspirational goal of enabling 40 percent of adult Oregonians to have 26 at least a bachelor's degree, 40 percent of adult Oregonians to have at least an associate's degree 27 and the remaining 20 percent of adult Oregonians to have at least a high school diploma; and 28 Whereas later that year an increase in PERS costs resulted in massive layoffs of teachers, fewer 29 instructional days for students and the closings of schools; and 30 Whereas the PERS cost increase this year will drain hundreds of millions of dollars more out NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted. New sections are in boldfaced type. W 3026 SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 of schools and cripple Oregon's efforts to achieve its educational goals; and Whereas it is necessary for the Legislative Assembly to reform PERS, so that the state may provide critical services efficiently and effectively and provide a long-term, financially sound re- tirement system for public employees; and Whereas the savings from the reforms set forth in this 2013 Act could facilitate the hiring or retention of thousands of public employees, including teachers, police officers and firefighters; and Whereas it is the intent of the Legislative Assembly that the savings realized by schools and agencies as a result of this 2013 Act be used, to the maximum extent possible, to provide services that Oregonians need; and Whereas the Legislative Assembly accordingly urges that school districts use funds saved as a result of this 2013 Act to reduce class sizes, restore instructional days and hire 5,000 or more teachers throughout this state; and Whereas the Oregon Business Plan enjoys broad bipartisan support as a strategy for creating jobs and growing wages; and Whereas reform of the Public Employees Retirement System is a top priority in the Oregon Business Plan because it is critical to funding vital public services and especially education; now, therefore, Be It Enacted by the People of the State of Oregon: LIMITATION ON COST OF LIVING ADJUSTMENT SECTION 1. ORS 238.360 is amended to read: 238.360. (1) As soon as practicable after January 1 each year, the Public Employees Retirement Board shall determine the percentage increase or decrease in the cost-of-living for the previous calendar year, based on the Consumer Price Index (Portland area-all items) as published by the Bureau of Labor Statistics of the U.S. Department of Labor for the Portland, Oregon, area. Prior to July 1 each year, the board shall adjust the allowance which the member or the member's benefi- ciary is receiving or is entitled to receive on August 1 for the month of July [shall be multiplied] by multiplying the allowance or the maximum monthly amount determined under subsection (6) of this section, whichever is less, by the percentage figure determined[, and the allowance for the next 12 months beginning July 1 adjusted to the resultant amount] by the board and adding the resultant amount to the allowance. (2) The allowance shall be adjusted under subsection (1) of this section for the next 12 months beginning July 1. [(2)] (3) [Such] An increase or decrease [shall] under subsection (1) of this section may not exceed two percent of any monthly retirement allowance in any year and [no] an allowance [shall] may not be adjusted to an amount less than the amount to which the recipient would be entitled if no cost-of-living adjustment were authorized. [(3)] (4) The amount of any cost-of-living increase or decrease in any year in excess of the maximum annual retirement allowance adjustment [of two percent] shall be accumulated from year to year and included in the computation of increases or decreases in succeeding years. [(4)] (5) Any increase in the allowance shall be paid from contributions of the public employer under ORS 238.225. Any decrease in the allowance shall be returned to the employer in the form of a credit against contributions of the employer under ORS 238.225. (6) Except as provided in section 5 of this 2013 Act, to determine the maximum monthly [2] SB 754 1 amount to which the cost-of-living adjustment provided for in subsection (1) of this section 2 may be applied, the board shall multiply the maximum monthly amount for the previous year 3 by the percentage increase or decrease determined by the board under subsection (1) of this 4 section. 5 SECTION 2. The amendments to ORS 238.360 by section 1 of this 2013 Act apply to all 6 members of the Public Employees Retirement System, regardless of the date the member 7 retires. 8 SECTION 3. ORS 238A.210 is amended to read: 9 238A.210. (1) As soon as practicable after January 1 each year, the Public Employees Retirement 10 Board shall determine the percentage increase or decrease in the cost of living for the previous 11 calendar year, based on the Portland-Salem, OR-WA, Consumer Price Index for All Urban Consumers 12 for All Items, as published by the Bureau of Labor Statistics of the United States Department of 13 Labor. Before July 1 each year, the board shall adjust every pension payable under ORS 238A.180, 14 238A.185 and 238A.190, every disability benefit under ORS 238A.235 and every death benefit payable 15 under ORS 238A.230 by multiplying the monthly payment or the maximum monthly amount de- 16 termined under subsection (5) of this section, whichever is less, by the percentage figure de- 17 termined by the board and adding the resultant amount to the monthly payment. 18 (2) The adjustment under subsection (1) of this section shall be made for the payments 19 payable on August 1 and thereafter. 20 (3) If a person has been receiving a pension or benefit for less than 12 months on July 1 of a 21 calendar year, the board shall make a pro rata reduction of the adjustment under subsection (1) 22 of this section based on the number of months that the pension or benefit was received before July 23 1 of the year. [The adjustment shall be made for the payments payable on August I and thereafter.] 24 [01 (4) An increase or decrease in the benefit payments under this section may not exceed two 25 percent in any year. A pension or death benefit may not be adjusted to an amount that is less than 26 the amount that would have been payable if no cast-of-living adjustment had been made since the 27 pension or death benefit first became payable. 28 (5) Except as provided in section 5 of this 2013 Act, to determine the maximum monthly 29 amount to which the cost-of-living adjustment provided for in subsection (1) of this section 30 may be applied, the board shall multiply the maximum monthly amount for the previous year 31 by the percentage increase or decrease determined by the board under subsection (1) of this 32 section. 33 SECTION 4. The amendments to ORS 238A.210 by section 3 of this 2013 Act apply to all 34 members of the Public Employees Retirement System, regardless of the date the member 35 retires, becomes disabled or dies. 36 SECTION 5. (1) The maximum monthly amount to which the cost-of-living adjustment 37 under ORS 238.360 may be applied for the 12 months beginning July 1, 2014, is $2,000. 38 (2) The maximum monthly amount to which the cost-of-living adjustment under ORS 39 238A.210 may be applied for payments payable between August 1, 2014, and July 31, 2015, is 40 $2,000. 41 42 CALCULATION OF FINAL AVERAGE SALARY 43 44 SECTION 6. ORS 238.350 and 238.355 are repealed. 45 SECTION 7. ORS 238.005, as amended by section 30, chapter 54, Oregon Laws 2012, is amended [3] SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 to read: 238.005. For purposes of this chapter: (1) "Active member" means a member who is presently employed by a participating public em- ployer in a qualifying position and who has completed the six-month period of service required by ORS 238.015. (2) "Annuity" means payments for life derived from contributions made by a member as provided in this chapter. (3) "Board" means the Public Employees Retirement Board. (4) "Calendar year" means 12 calendar months commencing on January 1 and ending on De- cember 31 following. (5) "Continuous service" means service not interrupted for more than five years, except that such continuous service shall be computed without regard to interruptions in the case of: (a) An employee who had returned to the service of the employer as of January 1, 1945, and who remained in that employment until having established membership in the Public Employees Retirement System. (b) An employee who was in the armed services on January 1, 1945, and returned to the service of the employer within one year of the date of being otherwise than dishonorably discharged and remained in that employment until having established membership in the Public Employees Retire- ment System. (6) "Creditable service" means any period of time during which an active member is being paid a salary by a participating public employer and for which benefits under this chapter are funded by employer contributions and earnings on the fund. For purposes of computing years of "creditable service," full months and major fractions of a month shall be considered to be one-twelfth of a year and shall be added to all full years. "Creditable service" includes all retirement credit received by a member. (7) "Earliest service retirement age" means the age attained by a member when the member could first make application for retirement under the provisions of ORS 238.280. (8) "Employee" includes, in addition to employees, public officers, but does not include: (a) Persons engaged as independent contractors. (b) Seasonal, emergency or casual workers whose periods of employment with any public em- ployer or public employers do not total 600 hours in any calendar year. (c) Persons, other than workers in the Oregon Industries for the Blind under ORS 346.190, pro- vided sheltered employment or made-work by a public employer in an employment or industries program maintained for the benefit of such persons. (d) Persons employed and paid from federal funds received under a federal program intended primarily to alleviate unemployment. However, any such person shall be considered an "employee" if not otherwise excluded by paragraphs (a) to (c) of this subsection and the public employer elects to have the person so considered by an irrevocable written notice to the board. (e) Persons who are employees of a railroad, as defined in ORS 824.020, and who, as such em- ployees, are included in a retirement plan under federal railroad retirement statutes. This paragraph shall be deemed to have been in effect since the inception of the system. (9) "Final average salary" means whichever of the following is greater: (a) The average salary per calendar year paid by one or more participating public employers to an employee who is an active member of the system in three of the calendar years of membership before the effective date of retirement of the employee, in which three years the employee was paid [41 SB 754 1 the highest salary. The three calendar years in which the employee was paid the largest total salary 2 may include calendar years in which the employee was employed for less than a full calendar year. 3 If the number of calendar years of active membership before the effective date of retirement of the 4 employee is three or fewer, the final average salary for the employee is the average salary per cal- 5 endar year paid by one or more participating public employers to the employee in all of those years, 6 without regard to whether the employee was employed for the full calendar year. 7 (b) One-third of the total salary paid by a participating public employer to an employee who is 8 an active member of the system in the last 36 calendar months of active membership before the ef- 9 fective date of retirement of the employee. 10 (10) "Firefighter" does not include a volunteer firefighter, but does include: 11 (a) The State Fire Marshal, the chief deputy fire marshal and deputy state fire marshals; and 12 (b) An employee of the State Forestry Department who is certified by the State Forester as a 13 professional wildland firefighter and whose primary duties include the abatement of uncontrolled 14 fires as described in ORS 477.064. 15 (11) "Fiscal year" means 12 calendar months commencing on July 1 and ending on June 30 fol- 16 lowing. 17 (12) "Fund" means the Public Employees Retirement Fund. 18 (13) "Inactive member" means a member who is not employed in a qualifying position, whose 19 membership has not been terminated in the manner described by ORS 238.095 and who is not retired 20 for service or disability. 21 (14) "Institution of higher education" means a public university listed in ORS 352.002, the 22 Oregon Health and Science University and a community college, as defined in ORS 341.005. 23 (15) "Member" means a person who has established membership in the system and whose mem- 24 bership has not been terminated as described in ORS 238.095. "Member" includes active, inactive 25 and retired members. 26 (16) "Member account" means the regular account and the variable account. 27 (17) "Normal retirement age" means: 28 (a) For a person who establishes membership in the system before January 1, 1996, as described 29 in ORS 238.430, 55 years of age if the employee retires at that age as a police officer or firefighter 30 or 58 years of age if the employee retires at that age as other than a police officer or firefighter. 31 (b) For a person who establishes membership in the system on or after January 1, 1996, as de- 32 scribed in ORS 238.430, 55 years of age if the employee retires at that age as a police officer or 33 firefighter or 60 years of age if the employee retires at that age as other than a police officer or 34 firefighter. 35 (18) "Pension" means annual payments for life derived from contributions by one or more public 36 employers. 37 (19) "Police officer" includes: 38 (a) Employees of institutions defined in ORS 421.005 as Department of Corrections institutions 39 whose duties, as assigned by the Director of the Department of Corrections, include the custody of 40 persons committed to the custody of or transferred to the Department of Corrections and employees 41 of the Department of Corrections who were classified as police officers on or before July 27, 1989, 42 whether or not such classification was authorized by law. 43 (b) Employees of the Department of State Police who are classified as police officers by the 44 Superintendent of State Police. 45 (c) Employees of the Oregon Liquor Control Commission who are classified as liquor enforce- 151 SB 754 1 ment inspectors by the administrator of the commission. 2 (d) Sheriffs and those deputy sheriffs or other employees of a sheriff whose duties, as classified 3 by the sheriff, are the regular duties of police officers or corrections officers. 4 (e) Police chiefs and police personnel of a city who are classified as police officers by the 5 council or other governing body of the city. 6 (f) Police officers who are commissioned by a university under ORS 352.383 and who are clas- 7 sified as police officers by the university. 8 (g) Parole and probation officers employed by the Department of Corrections, parole and pro- 9 bation officers who are transferred to county employment under ORS 423.549 and adult parole and 10 probation officers, as defined in ORS 181.610, who are classified as police officers for the purposes 11 of this chapter by the county governing body. If a county classifies adult parole and probation off- 12 cers as police officers for the purposes of this chapter, and the employees so classified are repres- 13 ented by a labor organization, any proposal by the county to change that classification or to cease 14 to classify adult parole and probation officers as police officers for the purposes of this chapter is 15 a mandatory subject of bargaining. 16 (h) Police officers appointed under ORS 276.021 or 276.023. 17 (i) Employees of the Port of Portland who are classified as airport police by the Board of Com- 18 missioners of the Port of Portland. 19 0) Employees of the State Department of Agriculture who are classified as livestock police of- 20 ficers by the Director of Agriculture. 21 (k) Employees of the Department of Public Safety Standards and Training who are classified by 22 the department as other than secretarial or clerical personnel. 23 (L) Investigators of the Criminal Justice Division of the Department of Justice. 24 (m) Corrections officers as defined in ORS 181.610. 25 (n) Employees of the Oregon State Lottery Commission who are classified by the Director of the 26 Oregon State Lottery as enforcement agents pursuant to ORS 461.110. 27 (o) The Director of the Department of Corrections. 28 (p) An employee who for seven consecutive years has been classified as a police officer as de- 29 fined by this section, and who is employed or transferred by the Department of Corrections to fill 30 a position designated by the Director of the Department of Corrections as being eligible for police 31 officer status. 32 (q) An employee of the Department of Corrections classified as a police officer on or prior to 33 July 27, 1989, whether or not that classification was authorized by law, as long as the employee 34 remains in the position held on July 27, 1989. The initial classification of an employee under a sys- 35 tem implemented pursuant to ORS 240.190 does not affect police officer status. 36 (r) Employees of a school district who are appointed and duly sworn members of a law 37 enforcement agency of the district as provided in ORS 332.531 or otherwise employed full-time as 38 police officers commissioned by the district. 39 (s) Employees at youth correction facilities and juvenile detention facilities under ORS 419A.050, 40 419A.052 and 420.005 to 420.915 who are required to hold valid Oregon teaching licenses and who 41 have supervisory, control or teaching responsibilities over juveniles committed to the custody of the 42 Department of Corrections or the Oregon Youth Authority. 43 (t) Employees at youth correction facilities as defined in ORS 420.005 whose primary job de- 44 scription involves the custody, control, treatment, investigation or supervision of juveniles placed 45 in such facilities. (61 SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (u) Employees of the Oregon Youth Authority who are classified as juvenile parole and pro- bation officers. (20) "Prior service credit" means credit provided under ORS 238.442 or under ORS 238.225 (2) to (6) (1999 Edition). (21) "Public employer" means the state, one of its agencies, any city, county, or municipal or public corporation, any political subdivision of the state or any instrumentality thereof, or an agency created by one or more such governmental organizations to provide governmental services. For purposes of this chapter, such agency created by one or more governmental organizations is a gov- ernmental instrumentality and a legal entity with power to enter into contracts, hold property and sue and be sued. (22) "Qualifying position" means one or more jobs with one or more participating public em- ployers in which an employee performs 600 or more hours of service in a calendar year, excluding any service in a job for which a participating public employer does not provide benefits under this chapter pursuant to an application made under ORS 238.035. (23) "Regular account" means the account established for each active and inactive member un- der ORS 238.250. (24) "Retired member" means a member who is retired for service or disability. (25) "Retirement credit" means a period of time that is treated as creditable service for the purposes of this chapter. (26)(a) "Salary" means the remuneration paid an employee in cash out of the funds of a public employer in return for services to the employer, plus the monetary value, as determined by the Public Employees Retirement Board, of whatever living quarters, board, lodging, fuel, laundry and other advantages the employer furnishes the employee in return for services. (b) "Salary" includes but is not limited to: (A) Payments of employee and employer money into a deferred compensation plan, which are deemed salary paid in each month of deferral; (B) The amount of participation in a tax-sheltered or deferred annuity, which is deemed salary paid in each month of participation; (C) Retroactive payments described in ORS 238.008; and (D) Wages of a deceased member paid to a surviving spouse or dependent children under ORS 652.190. (c) "Salary" or "other advantages" does not include: (A) Travel or any other expenses incidental to employer's business which is reimbursed by the employer; (B) Payments for insurance coverage by an employer on behalf of employee or employee and dependents, for which the employee has no cash option; (C) Payments made on account of an employee's death; (D) Any lump sum payment for accumulated unused sick leave; (E) Any accelerated payment of an employment contract for a future period or an advance against future wages; (F) Any retirement incentive, retirement severance pay, retirement bonus or retirement gratuitous payment; (G) Payments for periods of leave of absence after the date the employer and employee have agreed that no future services qualifying pursuant to ORS 238.015 (3) will be performed[, except for sick leave and vacation]; [7] SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (H) Payments for instructional services rendered to public universities of the Oregon University System or the Oregon Health and Science University when such services are in excess of full-time employment subject to this chapter. A person employed under a contract for less than 12 months is subject to this subparagraph only for the months to which the contract pertains; [or] (1) Payments made by an employer for insurance coverage provided to a domestic partner of an employee[.]; (J) Any lump sum payment for accumulated unused vacation leave or other unused paid leave; or (A) Payments for overtime. (27) "School year" means the period beginning July 1 and ending June 30 next following. (28) "System" means the Public Employees Retirement System. (29) "Variable account" means the account established for a member who participates in the Variable Annuity Account under ORS 238.260. (30) "Vested" means being an active member of the system in each of five calendar years. (31) "Volunteer f"iref"ighter" means a firefighter whose position normally requires less than 600 hours of service per year. SECTION S. ORS 238.285 is amended to read: 238.285. (1) Not earlier than two years before a member's earliest service retirement age, a member may request a verification of retirement data from the Public Employees Retirement Board. Upon receiving a request under this section, the board shall notify all of the member's participating public employers of the request. In a manner specified by rules of the board, the board shall allow those employers a reasonable time to confirm the records relating to the member that were provided to the board before the request was made. The board shall thereafter provide a verification to the member that includes the following data, as reflected in the records of the Public Employees Re- tirement System: (a) The service information reported by the member's employers and the number of years and months of creditable service or retirement credit derived from that information, determined as of a date specified in the verification. (b) The salary data reported by the member's employers for each calendar year, and the final average salary for the member derived from that data. (c) If applicable, the member's regular account balance, and any variable account balance, as of the end of a calendar year specified in the verification. [(d) If applicable, the total amount of unused sick leave accumulated by the member as of a date specified in the verification.] (2) A member of the system may dispute the accuracy of the data provided in the verification by filing a written notice of dispute with the board not more than 60 days after the date on which the verification is provided to the member. Upon receiving a notice of dispute under this subsection, the board shall determine the accuracy of the disputed data and make a written decision based on its determination. The board shall provide to the member a copy of the decision and a written ex- planation of any applicable statutes and rules. A member may seek judicial review of the decision as provided in ORS 183.484 and rules of the board. (3) Except as provided in this section, when a member who receives a verification under this section retires for service, the creditable service, retirement credit, final average salary[,] and member account balances [and accumulated unused sick leave] used in calculating the member's re- tirement allowance or pension may not be less than the amounts provided in the verification, subject [8l SB 754 1 to adjustments for; 2 (a) Creditable service or retirement credit accrued by the member after the date specified in the 3 verification. 4 (b) Salary attributable to periods of employment after the date specified in the verification. 5 (c) Earnings and losses credited to the member's accounts from the end of the calendar year 6 specified in the verification to the member's effective retirement date, in accordance with rules 7 adopted by the board. 8 [(d) Sick leave used and accrued after the date specified in the verification.] 9 (4) The board may use creditable service, retirement credit, final average salary[,] or member 10 account balances [or accumulated unused sick leave] in calculating a member's service retirement 11 allowance that is less than the amounts provided in a verification received under this section if the 12 member knew that the amounts were not accurate at the time the verification was provided and the 13 member did not dispute the accuracy of the amounts as provided in subsection (2) of this section. 14 (5) A participating public employer may not modify information provided to the board relating 15 to a member's creditable service, retirement credit, final average salary[,] or employee contributions 16 [or accumulated unused sick leave] after the board provides the member with a verification under this 17 section that is based on that information except in response to the board's request for the purpose 18 of a determination under subsection (2) or (4) of this section. 19 (6)(a) Subject to paragraph (b) of this subsection, erroneous payments or overpayments paid to 20 or on account of a member based on a verification provided under this section may not be recovered 21 under ORS 238.715, but may be charged to the reserve account established under ORS 238.670 (1), 22 or charged as an administrative expense under ORS 238.610. 23 (b) The board shall recover erroneous payments or overpayments paid to or on account of a 24 member based on a verification provided under this section if the board determines that the recov- 25 ery is required to maintain the status of the system and the Public Employees Retirement Fund as 26 a qualified governmental retirement plan and trust under the Internal Revenue Code and under 27 regulations adopted pursuant to the Internal Revenue Code. 28 (7) A member may dispute the accuracy of data in a verification only as provided under this 29 section. A member may not dispute the accuracy of data in a verification in the manner provided 3o by ORS 238.450. 31 (8) A member shall be provided with one verification under this section at no cost. The board 32 may establish procedures for recovering administrative costs from members for services in providing 33 additional verifications. 34 SECTION 9. Section 4, chapter 1, Oregon Laws 2010, is amended to read: 35 Sec. 4. [(1) Except as provided in this section, section 3 of this 2009 Act] ORS 238.285 becomes 36 operative on July 1, 2011. 37 [(2) The requirement that the Public Employees Retirement Board provide verification of the 38 amount of a member's accumulated unused sick leave under section 3 (1)(d) of this 2009 Act first ap- 39 plies to requests for verifications of retirement data received by the board on or after July 1, 2012.] 40 SECTION 10. ORS 238.580 is amended to read: 41 238.580. (1) ORS 238.005 (4) and (26), 238.025, 238.078, 238.082, 238.092, 238.115 (1), 238.250, 42 238.255, 238.260, [238.350, 1 238.364, 238.410, 238.415, 238.420, 238.445, 238.458, 238.460, 238.465, 43 238.475, 238.600, 238.605, 238.610, 238.618, 238.630, 238.635, 238.645, 238.650, 238.655, 238.660, 238.665, 44 238.670 and 238.705 and the increases provided by ORS 238.366 for members of the system who are 45 serving as other than police officers or firefighters apply in respect to service as a judge member. 191 SB 754 1 (2) This chapter applies in respect to persons described in ORS 238.505 (1) and in respect to 2 service as a judge member only as specifically provided in ORS 238.500 to 238.585. 3 SECTION 11. ORS 292.180 is amended to read: 4 292.180. (1) The Oregon Department of Administrative Services may render a monthly or quar- 5 terly invoice to all state agencies utilizing or intending to utilize the joint payroll system in the 6 future. This monthly or quarterly invoice shall be equal to demonstrated savings of Workers' Com- 7 pensation workday tax costs which are a direct result of the savings from payment of the workday 8 tax based on actual days worked by the employee. 9 (2) It is the intention of this section to allow the department to use demonstrated savings of 10 Workers' Compensation workday tax costs to pay for the implementation costs of ORS [238.350,] 11 240.546, 292.026, 292.033, 292.070 to 292.110, 292.170 and this section and the moneys received are 12 continuously appropriated for the purposes of ORS [238.350,] 240.546, 292.026, 292,033, 292.070 to 13 292.110, 292.170 and this section. 14 (3) Any excess moneys remaining after the implementation of ORS [238,350,] 240.546, 292.026, 15 292.033, 292.070 to 292.110, 292.170 and this section shall be returned pro rata on the basis of total 16 moneys to agency contributions to the agencies from which received. However, if the amount re- 17 maining is less than $10,000, that amount may be transferred to the General Fund as a miscellaneous 18 receipt. 19 SECTION 12. The amendments to ORS 238.005, 238.580 and 292.180 by sections 7, 10 and 20 11 of this 2013 Act and the repeal of ORS 238.350 and 238.355 by section 6 of this 2015 Act 21 apply only to members of the Public Employees Retirement System who retire on or after 22 the effective date of this 2013 Act. 23 24 TAXATION OF OUT-OF-STATE RETIREES 25 26 SECTION 13. ORS 238.372 is amended to read: 27 238.372, (1) Except as provided in ORS 238.372 to 238.384, the Public Employees Retirement 28 Board may not pay the increased [benefit] benefits provided by chapter 796, Oregon Laws 1991, 29 or chapter 569, Oregon Laws 1995, if the board receives notice under ORS 238.372 to 238.384 that 30 the payments made to the person under this chapter are not subject to Oregon personal income tax 31 under ORS 316.127 (9). 32 [(2) The provisions of DRS 238.372 to 238.384 do not apply to:] 33 [(a) A retired member of the system who is receiving payments under this chapter and whose ef- 34 fective date of retirement is before January 1, 2012,1 35 [(b) A person who is receiving payments under this chapter by reason of the retirement of a member 36 whose effective date of retirement is before January 1, 2012; and] 37 [(c) Any other person who receives payments under this chapter that began before January 1, 38 2012.] 39 [(3)] (2) The board shall give written notification of the provisions of ORS 238.372 to 238.384 to 40 all persons applying for or receiving payments under this chapter. 41 [NA (3) A person receiving payments under this chapter that are not increased under chapter 42 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, by reason of ORS 238.372 to 238.384 43 has no right or claim to the increased benefit provided by chapter 796, Oregon Laws 1991, or 44 chapter 569, Oregon Laws 1995, except as provided in ORS 238.372 to 238.384. 45 SECTION 14. Section 15 of this 2013 Act is added to and made a part of ORS 238.372 to [10] SB 754 1 238.384. 2 SECTION 15. (1) On or before October 31, 2013, each person receiving payments under 3 this chapter shall provide the Public Employees Retirement Board with a written statement 4 that indicates whether the payments received by the person are subject to Oregon personal 5 income tax. 6 (2) If a person receiving payments under this chapter does not notify the board on or 7 before October 31, 2013, that the payments are subject to Oregon personal income tax, the 8 board shall reduce any benefits payable to the person by the amount by which the benefits 9 were increased under chapter 796, Oregon Laws 1991, and chapter 569, Oregon Laws 1995. 10 The reduction in benefits becomes effective on January 1, 2014. 11 SECTION 16. Section 15 of this 2013 Act is repealed on December 31, 2014. 12 SECTION 17. ORS 238.374 is amended to read: 13 238.374. (1) A person applying for payments under this chapter shall give a written statement 14 to the Public Employees Retirement Board that indicates whether the payments will be subject to 15 Oregon personal income tax under ORS 316.127 (9). If the person fails to provide the statement re- 16 quired by this subsection, or the statement indicates that the payments will not be subject to Oregon 17 personal income tax under ORS 316.127 (9), the board may not pay the person the increased 18 [benefit] benefits provided by chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995. 19 (2) If a person is receiving payments under this chapter that have not been increased under 20 chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, by reason of the provisions 21 of subsection (1) of this section, and thereafter the payments become subject to Oregon personal 22 income tax, the person shall promptly notify the Public Employees Retirement Board by written zi statement that the payments are subject to Oregon personal income tax. 24 (3) If a person is receiving payments under this chapter that have not been increased under 25 chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, by reason of the provisions 26 of subsection (1) of this section, and the board receives notice under subsection (2) of this section 27 that payments to the person under this chapter are subject to Oregon personal income tax, or de- 28 termines under ORS 238.378 that payments to the person under this chapter are subject to Oregon 29 personal income tax, the board shall initiate payment of the increased [benefit] benefits provided 30 by chapter 796, Oregon Laws 1991, and chapter 569, Oregon Laws 1995. The increase in benefits 31 becomes effective on the first day of the calendar year following receipt of notice by the board. 32 SECTION 18. ORS 238.376 is amended to read: 33 238.376. (1) If a person is receiving payments under this chapter, and after the payments com- 34 mence the payments cease to be subject to Oregon personal income tax under ORS 316.127 (9), the 35 person shall promptly notify the Public Employees Retirement Board by written statement that the 36 payments are no longer subject to Oregon personal income tax. The board shall reduce any benefits 37 payable to the person by the amount by which the benefits were increased under chapter 796, 38 Oregon Laws 1991, and chapter 569, Oregon Laws 1995. The reduction in benefits becomes effective 39 on the first day of the calendar year following receipt of notice by the board. 40 (2) If a person is receiving payments under this chapter that have been reduced [under the pro- 41 visions of subsection (1) of this section] because the payments are not subject to Oregon personal 42 income tax, and thereafter the payments become subject to Oregon personal income tax, the person 43 shall promptly notify the board by written statement that the payments are once again subject to 44 Oregon personal income tax. 45 (3) If a person is receiving payments under this chapter that have been reduced [under the pro- [11] SB 754 1 visions of subsection (1) of this section] because the payments are not subject to Oregon personal 2 income tax, and the board receives notice under subsection (2) of this section that payments to the 3 person under this chapter are once again subject to Oregon personal income tax, or determines 4 under ORS 238.378 that payments to the person under this chapter are once again subject to Oregon 5 personal income tax, the board shall resume payment of the increased [benefit] benefits provided 6 by chapter 796, Oregon Laws 1991, and chapter 569, Oregon Laws 1995. The increase in benefits 7 becomes effective on the first day of the calendar year following receipt of notice by the board. 8 SECTION 19. ORS 238.378 is amended to read: 9 238.378. (1) Not less than once each calendar year, the Public Employees Retirement Board shall 10 provide to the Department of Revenue information identifying persons to whom payments have been 11 made under this chapter. The Department of Revenue shall provide to the board such information 12 on Oregon personal income tax returns as the board deems necessary to determine whether the 13 payments made to the person under this chapter are subject to Oregon personal income tax under 14 ORS 316.127 (9). 15 (2) If the board determines that the payments made to a person under this chapter are not 16 subject to Oregon personal income tax under ORS 316.127 (9) based on information provided by the 17 Department of Revenue under this section, and the person is receiving the increased benefit pro- 18 vided by chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, the board shall re- 19 duce the benefits payable to the person as provided in ORS 238.376 (1). 20 (3) If the board determines that the payments made to a person under this chapter are subject 21 to Oregon personal income tax based on information provided by the Department of Revenue under 22 this section, and the person is not receiving the increased benefit provided by chapter 796, Oregon 23 Laws 1991, or chapter 569, Oregon Laws 1995, the board shall increase the benefits payable to the 24 person as provided in ORS 238.374 (3) or 238.376 (3). 25 SECTION 20. ORS 237.635 is amended to read: 26 237.635. (1) Any public employer that provides retirement benefits to its police officers and 27 firefighters other than by participation in the Public Employees Retirement System pursuant to the 28 provisions of ORS 237.620 shall provide increases to the police officers and firefighters of the public 29 employer, both active and retired, that are equal to the increases in retirement benefits that are 30 provided for in this 1991 Act for active and retired police officers or firefighters who are members 31 of the Public Employees Retirement System, or shall provide to those police officers and firefighters 32 increases in retirement benefits that are the actuarial equivalent of the increases in retirement 33 benefits that are provided for in this 1991 Act for police officers or firefighters who are members 34 of the Public Employees Retirement System. No other retirement benefit or other benefit provided 35 by those public employers shall be decreased by the employer by reason of the increases mandated 36 by this section. 37 (2) The increased benefits provided for in this section apply only to police officers or firefighters 38 who establish membership before July 14, 1995, in a retirement plan or system offered by a public 39 employer in lieu of membership in the Public Employees Retirement System pursuant to the pro- 40 visions of ORS 237.620. 41 (3) A public employer that is subject to the requirements of this section shall cease 42 paying increased retirement benefits under this section if the payments made to the person 43 are not subject to Oregon personal income tax under ORS 316.127 (9). A public employer that 44 is subject to the requirements of this section shall adopt procedures similar to those de- 45 scribed in OILS 238,372 to 238.384 for the purpose of implementing this subsection. The De- [12] SB 754 1 partment of Revenue shall provide to a public employer that is subject to the requirements 2 of this section the information regarding Oregon personal income tax returns that the public 3 employer deems necessary to determine whether the retirement benefits paid to the person 4 by the public employer are subject to Oregon personal income tag under ORS 316.127 (9). 5 SECTION 21. ORS 237.637 is amended to read: 6 237.637. (1) Any public employer that provides retirement benefits to its police officers and 7 firefighters other than by participation in the Public Employees Retirement System pursuant to the 8 provisions of ORS 237.620 shall provide increases to the police officers and firefighters of the public 9 employer, both active and retired, that are equal to the increases in retirement benefits that are 10 provided for in chapter 569, Oregon Laws 1995, for active and retired police officers or firefighters 11 who are members of the Public Employees Retirement System, or the public employer shall provide 12 to those police officers and firefighters increases in retirement benefits that are the actuarial 13 equivalent of the increases in retirement benefits that are provided for in chapter 569, Oregon Laws 14 1995, for police officers or firefighters who are members of the Public Employees Retirement System. 15 Increases provided under this section shall be reduced by the amount of any benefit increase pro- 16 vided by ORS 237.635 in the same manner that increases in retirement benefits that are provided for 17 in chapter 569, Oregon Laws 1995, for active and retired police officers or firefighters who are 18 members of the Public Employees Retirement System are reduced to reflect amounts paid to those 19 members under the provisions of chapter 796, Oregon Laws 1991. No other retirement benefit or 20 other benefit provided by those public employers shall be decreased by the employer by reason of 21 the increases mandated by this section. 22 (2) A public employer that is subject to the requirements of this section shall cease paying in- 23 creased retirement benefits under this section if the payments made to the person are not subject 24 to Oregon personal income tax under ORS 316.127 (9). A public employer that is subject to the re- 25 quirements of this section shall adopt procedures similar to those described in DRS 238.372 to 26 238.384 for the purpose of implementing this subsection. The Department of Revenue shall provide 27 to a public employer that is subject to the requirements of this section [such] the information re- 28 garding Oregon personal income tax returns [as] that the public employer deems necessary to de- 29 termine whether the retirement benefits paid to the person by the public employer are subject to 30 Oregon personal income tax under ORS 316.127 (9). 31 [(3) The provisions of subsection (2) of this section do not apply to:] 32 [(a) A retired police officer or firefighter who is receiving payments under the public employer's 33 plan and whose effective date of retirement is before January 1, 2012;1 34 [(b) A person who is receiving payments under the public employer's plan by reason of the retire- 35 ment of a police officer or firefighter whose effective date of retirement is before January 1, 2012; 36 and] 37 [(c) Any other person who receives payments under the public employer's plan that began before 38 January 1, 2012.1 39 SECTION 22. ORS 314.840, as amended by section 11, chapter 107, Oregon Laws 2012, is 40 amended to read: 41 314.840. (1) The Department of Revenue may: 42 (a) Furnish any taxpayer, representative authorized to represent the taxpayer under ORS 305.230 43 or person designated by the taxpayer under ORS 305.193, upon request of the taxpayer, represen- 44 tative or designee, with a copy of the taxpayer's income tax return filed with the department for 45 any year, or with a copy of any report filed by the taxpayer in connection with the return, or with [13] SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 any other information the department considers necessary. (b) Publish lists of taxpayers who are entitled to unclaimed tax refunds. (c) Publish statistics so classified as to prevent the identification of income or any particulars contained in any report or return. (d) Disclose a taxpayer's name, address, telephone number, refund amount, amount due, Social Security number, employer identification number or other taxpayer identification number to the ex- tent necessary in connection with collection activities or the processing and mailing of correspond- ence or of forms for any report, return or claim required in the administration of ORS 310.630 to 310.706, any local tax under ORS 305.620, or any law imposing a tax upon or measured by net in- come. (2) The department also may disclose and give access to information described in ORS 314.835 to: (a) The Governor of the State of Oregon or the authorized representative of the Governor: (A) With respect to an individual who is designated as being under consideration for appoint- ment or reappointment to an office or for employment in the office of the Governor. The information disclosed shall be confined to whether the individual: (i) Has filed returns with respect to the taxes imposed by ORS chapter 316 for those of not more than the three immediately preceding years for which the individual was required to file an Oregon individual income tax return. (ii) Has failed to pay any tax within 30 days from the date of mailing of a deficiency notice or otherwise respond to a deficiency notice within 30 days of its mailing. (iii) Has been assessed any penalty under the Oregon personal income tax laws and the nature of the penalty. (iv) Has been or is under investigation for possible criminal offenses under the Oregon personal income tax laws. Information disclosed pursuant to this paragraph shall be used only for the purpose of making the appointment, reappointment or decision to employ or not to employ the individual in the office of the Governor. (B) For use by an officer or employee of the Oregon Department of Administrative Services duly authorized or employed to prepare revenue estimates, or a person contracting with the Oregon De- partment of Administrative Services to prepare revenue estimates, in the preparation of revenue estimates required for the Governor's budget under ORS 291.201 to 291.226, or required for sub- mission to the Emergency Board or the Joint Interim Committee on Ways and Means, or if the Legislative Assembly is in session, to the Joint Committee on Ways and Means, and to the Legisla- tive Revenue Officer or Legislative Fiscal Officer under ORS 291.342, 291.348 and 291.445. The De- partment of Revenue shall disclose and give access to the information described in ORS 314.835 for the purposes of this subparagraph only if. (i) The request for information is made in writing, specifies the purposes for which the request is made and is signed by an authorized representative of the Oregon Department of Administrative Services. The form for request for information shall be prescribed by the Oregon Department of Administrative Services and approved by the Director of the Department of Revenue. (ii) The officer, employee or person receiving the information does not remove from the premises of the Department of Revenue any materials that would reveal the identity of a personal or corpo- rate taxpayer. (b) The Commissioner of Internal Revenue or authorized representative, for tax administration and compliance purposes only. [141 SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (c) For tax administration and compliance purposes, the proper officer or authorized represen- tative of any of the following entities that has or is governed by a provision of law that meets the requirements of any applicable provision of the Internal Revenue Code as to confidentiality: (A) A state; (B) A city, county or other political subdivision of a state; (C) The District of Columbia; or (D) An association established exclusively to provide services to federal, state or local taxing authorities. (d) The Multistate Tax Commission or its authorized representatives, for tax administration and compliance purposes only. The Multistate Tax Commission may make the information available to the Commissioner of Internal Revenue or the proper officer or authorized representative of any governmental entity described in and meeting the qualifications of paragraph (c) of this subsection. (e) The Attorney General, assistants and employees in the Department of Justice, or other legal representative of the State of Oregon, to the extent the department deems disclosure or access necessary for the performance of the duties of advising or representing the department pursuant to ORS 180.010 to 180.240 and the tax laws of this state. (f) Employees of the State of Oregon, other than of the Department of Revenue or Department of Justice, to the extent the department deems disclosure or access necessary for such employees to perform their duties under contracts or agreements between the department and any other de- partment, agency or subdivision of the State of Oregon, in the department's administration of the tax laws. (g) Other persons, partnerships, corporations and other legal entities, and their employees, to the extent the department deems disclosure or access necessary for the performance of such others' duties under contracts or agreements between the department and such legal entities, in the department's administration of the tax laws. (h) The Legislative Revenue Officer or authorized representatives upon compliance with ORS 173.850. Such officer or representative shall not remove from the premises of the department any materials that would reveal the identity of any taxpayer or any other person. (i) The Department of Consumer and Business Services, to the extent the department requires such information to determine whether it is appropriate to adjust those workers' compensation benefits the amount of which is based pursuant to ORS chapter 656 on the amount of wages or earned income received by an individual. (j) Any agency of the State of Oregon, or any person, or any officer or employee of such agency or person to whom disclosure or access is given by state law and not otherwise referred to in this section, including but not limited to the Secretary of State as Auditor of Public Accounts under section 2, Article VI of the Oregon Constitution; the Department of Human Services pursuant to ORS 314.860 and 412.094; the Division of Child Support of the Department of Justice and district attorney regarding cases for which they are providing support enforcement services under ORS 25.080; the State Board of Tax Practitioners, pursuant to ORS 673.710; and the Oregon Board of Accountancy, pursuant to ORS 673.415. (k) The Director of the Department of Consumer and Business Services to determine that a person complies with ORS chapter 656 and the Director of the Employment Department to determine that a person complies with ORS chapter 657, the following employer information: (A) Identification numbers. (B) Names and addresses. [151 SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (C) Inception date as employer. (D) Nature of business. (E) Entity changes. (F) Date of last payroll. (L) The Director of Human Services to determine that a person has the ability to pay for care that includes services provided by the Eastern Oregon Training Center or the Department of Human Services to collect any unpaid cost of care as provided by ORS chapter 179. (m) The Director of the Oregon Health Authority to determine that a person has the ability to pay for care that includes services provided by the Blue Mountain Recovery Center or the Oregon State Hospital or the Oregon Health Authority to collect any unpaid cost of care as provided by ORS chapter 179. (n) Employees of the Employment Department to the extent the Department of Revenue deems disclosure or access to information on a combined tax report filed under ORS 316.168 is necessary to performance of their duties in administering the tax imposed by ORS chapter 657. (o) The State Fire Marshal to assist the State Fire Marshal in carrying out duties, functions and powers under ORS 453.307 to 453.414, the employer or agent name, address, telephone number and standard industrial classification, if available. (p) Employees of the Department of State Lands for the purposes of identifying, locating and publishing lists of taxpayers entitled to unclaimed refunds as required by the provisions of chapter 694, Oregon Laws 1993. The information shall be limited to the taxpayer's name, address and the refund amount. (q) In addition to the disclosure allowed under ORS 305.225, state or local law enforcement agencies to assist in the investigation or prosecution of the following criminal activities: (A) Mail theft of a check, in which case the information that may be disclosed shall be limited to the stolen document, the name, address and taxpayer identification number of the payee, the amount of the check and the date printed on the check. (B) The counterfeiting, forging or altering of a check submitted by a taxpayer to the Department of Revenue or issued by the Department of Revenue to a taxpayer, in which case the information that may be disclosed shall be limited to the counterfeit, forged or altered document, the name, ad- dress and taxpayer identification number of the payee, the amount of the check, the date printed on the check and the altered name and address. (r) The United States Postal Inspection Service or a federal law enforcement agency, including but not limited to the United States Department of Justice, to assist in the investigation of the fol- lowing criminal activities: (A) Mail theft of a check, in which case the information that may be disclosed shall be limited to the stolen document, the name, address and taxpayer identification number of the payee, the amount of the check and the date printed on the check. (B) The counterfeiting, forging or altering of a check submitted by a taxpayer to the Department of Revenue or issued by the Department of Revenue to a taxpayer, in which case the information that may be disclosed shall be limited to the counterfeit, forged or altered document, the name, ad- dress and taxpayer identification number of the payee, the amount of the check, the date printed on the check and the altered name and address. (s) The United States Financial Management Service, for purposes of facilitating the offsets de- scribed in ORS 305.612. (t) A municipal corporation of this state for purposes of assisting the municipal corporation in [161 SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 the administration of a tax of the municipal corporation that is imposed on or measured by income, wages or net earnings from self-employment. Any disclosure under this paragraph may be made only pursuant to a written agreement between the Department of Revenue and the municipal corporation that ensures the confidentiality of the information disclosed. (u) A consumer reporting agency, to the extent necessary to carry out the purposes of ORS 314.843. (v) The Public Employees Retirement Board, to the extent necessary to carry out the purposes of ORS 238.372 to 238.384, and to any public employer, to the extent necessary to carry out the purposes of ORS 237.635 (3) and 237.637 (2). (3)(a) Each officer or employee of the department and each person described or referred to in subsection (2)(a), (e) to (k) or (n) to (q) of this section to whom disclosure or access to the tax in- formation is given under subsection (2) of this section or any other provision of state law, prior to beginning employment or the performance of duties involving such disclosure or access, shall be advised in writing of the provisions of ORS 314.835 and 314.991, relating to penalties for the vio- lation of ORS 314.835, and shall as a condition of employment or performance of duties execute a certificate for the department, in a form prescribed by the department, stating in substance that the person has read these provisions of law, that the person has had them explained and that the person is aware of the penalties for the violation of ORS 314.835. (b) The disclosure authorized in subsection (2)(r) of this section shall be made only after a written agreement has been entered into between the Department of Revenue and the person de- scribed in subsection (2)(r) of this section to whom disclosure or access to the tax information is given, providing that: (A) Any information described in ORS 314.835 that is received by the person pursuant to sub- section (2)(r) of this section is confidential information that may not be disclosed, except to the ex- tent necessary to investigate or prosecute the criminal activities described in subsection (2)(r) of this section; (B) The information shall be protected as confidential under applicable federal and state laws; and (C) The United States Postal Inspection Service or the federal law enforcement agency shall give notice to the Department of Revenue of any request received under the federal Freedom of In- formation Act, 5 U.S.C. 552, or other federal law relating to the disclosure of information. (4) The Department of Revenue may recover the costs of furnishing the information described in subsection (2)(k) to (m) and (o) to (q) of this section from the respective agencies. TRANSFER OF EMPLOYEE CONTRIBUTIONS SECTION 23. Sections 24, 25 and 26 of this 2013 Act are added to and made a part of ORS chapter 238A. SECTION 24. (1) A member who established membership in the Public Employees Re- tirement System before August 29, 2003, as described in ORS 238A.025 (4), ceases to be a member of the individual account program on the effective date of this 2013 Act. (2) A member who established membership in the Public Employees Retirement System before August 29, 2003, as described in ORS 238A.025 (4), and who is a member of the indi- vidual account program on the effective date of this 2013 Act, continues to be a member for the purpose of amounts in the employee account established for the member under ORS [171 SB 754 1 238A.350 (2), and the Public Employees Retirement Board shall continue to make adjustments 2 to the account in the manner prescribed by ORS 238A.350 (1) on and after the effective date 3 of this 2013 Act, but no further employee contributions may be deposited in the account on 4 or after the effective date of this 2013 Act by reason of service by the member. 5 (3) Employee contributions under ORS 238A.330 made on or after the effective date of 6 this 2013 Act by or on behalf of a member who established membership in the Public Em- 7 ployees Retirement System before August 29, 2003, as described in ORS 238A.025 (4), may not 8 be deposited by the Public Employees Retirement Board in the employee account established 9 for the member under ORS 23SA-350 (2), but shall instead be deposited in the account es- 10 tablished for the member under section 25 of this 2013 Act. 11 SECTION 25. (1) The Public Employees Retirement Board shall establish an account for 12 each active member of the Public Employees Retirement System who established member- 13 ship in the system before August 29, 2003, as described in ORS 238A.025 (4). Each account 14 shall be adjusted at least annually in accordance with rules adopted by the board to reflect 15 any net earnings or losses on those contributions. The adjustments described in this sub- 16 section shall continue until the account is withdrawn or applied against the costs of the 17 pension or other retirement benefits payable to the member. 18 (2) Unless the amounts in an account created under this section are withdrawn under 19 section 26 of this 2013 Act, the amounts in the account shall be applied by the board to pay 20 the costs of the pension or other retirement benefits payable to or on behalf of the member. 21 SECTION 26. (1) An inactive member may elect to receive a distribution of the amounts 22 in the member's account established under section 25 of this 2013 Act if the inactive member 23 has separated from all service with participating public employers and with employers who 24 are treated as part of a participating public employer's controlled group under the federal 25 laws and rules governing the status of the Public Employees Retirement System and the 26 Public Employees Retirement Fund as a qualified governmental retirement plan and trust. 27 (2) A member who is vested in the pension program established under this chapter and 28 who is eligible to withdraw from the pension program under ORS 238A.120 may make an 29 election under this section only if the member also withdraws from the pension program. 30 SECTION 27. ORS 238A.320 is amended to read: 31 238A.320. (1) A member of the individual account program becomes vested in the employee ac- 32 count established for the member under ORS 238A.350 (2) on the date the employee account is es- 33 tablished. 34 (2) A member who makes rollover contributions becomes vested in the rollover account estab- 35 lished for the member under ORS 238A.350 (4) on the date the rollover account is established. 36 (3) Except as provided in subsection (4) of this section, if an employer makes employer contri- 37 butions for a member under ORS 238A.340 the member becomes vested in the employer account es- 38 tablished under ORS 238A.350 (3) on the earliest of the following dates: 39 (a) The date on which the member completes at least 600 hours of service in each of five cal- 40 endar years. The five calendar years need not be consecutive, but are subject to the provisions of 41 subsection (5) of this section. 42 (b) The date on which an active member reaches the normal retirement age for the member 43 under ORS 238A.160. 44 (c) If the individual account program is terminated, the date on which termination becomes ef- 45 fective, but only to the extent the account is then funded. [18) SB 754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 3`L 33 34 35 36 37 38 39 40 41 42 43 44 45 (d) The date on which an active member becomes disabled, as described in ORS 238A.155 (5). (e) The date on which an active member dies. (4) If on the date that a person becomes an active member the person has already reached the normal retirement age for the person under ORS 238A.160, and the employer makes employer con- tributions for the member under ORS 238A.340, the person is vested in the employer account es- tablished under ORS 238A.350 (3) on that date. (5) If a member of the individual account program who is not vested in the employer account performs fewer than 600 hours of service in each of five consecutive calendar years, hours of service performed before the first calendar year of the period of five consecutive calendar years shall be disregarded for purposes of determining whether the member is vested under subsection (3)(a) of this section. (6) Solely for purposes of determining whether a member is vested under subsection (3)(a) of this section, hours of service include creditable service, as defined in ORS 238.005, performed by the person before the person became an eligible employee, as long as the membership of the person under ORS chapter 238 has not been terminated under the provisions of ORS 238.095 on the date the person becomes an eligible employee. (7) A member becomes vested in the account established for the member under section 25 of this 2013 Act on the date the account is established under section 25 of this 2013 Act. ASSUMED INTEREST RATE FOR CALCULATION OF MONEY MATCH SECTION 28. ORS 238.300 is amended to read: 238.300. Upon retiring from service at normal retirement age or thereafter, a member of the system shall receive a service retirement allowance which shall consist of the following annuity and pensions: (1) A refund annuity which shall be the actuarial equivalent of accumulated contributions, if any, by the member and interest thereon credited at the time of retirement, which annuity shall provide an allowance payable during the life of the member and at death a lump sum equal in amount to the difference between accumulated contributions at the time of retirement and the sum of the annuity payments actually made to the member during life shall be paid to such person, if any, as the member nominates by written designation duly acknowledged and filed with the Public Em- ployees Retirement Board or shall otherwise be paid according to the provisions of this chapter for disposal of an amount credited to the member account of a member at the time of death in the event the member designates no beneficiary to receive the amount or no such beneficiary is able to receive the amount. If death of the member occurs before the first payment is due, the member ac- count of the member shall be treated as though death had occurred before retirement. (2)(a) A life pension (nonrefund) for current service provided by the contributions of employers, which pension, subject to paragraph (b) of this subsection, shall be an amount which, when added to the sum of the annuity, if any, under subsection (1) of this section and the annuity, if any, pro- vided on the same basis and payable from the Variable Annuity Account, both annuities considered on a refund basis, results in a total of: (A) For service as a police officer or firefighter, two percent of final average salary multiplied by the number of years of membership in the system as a police officer or firefighter before the ef- fective date of retirement. 1191 SB 754 1 (B) For service as other than a police officer or firefighter, including service as a member of the 2 Legislative Assembly, 1.67 percent of final average salary multiplied by the number of years of 3 membership in the system as other than a police officer or firefighter before the effective date of 4 retirement. 5 (b) A pension under this subsection shall be at least. 6 (A) For a member who first establishes membership in the system before July 1, 2003, the 7 actuarial equivalent of the annuity provided by the accumulated contributions of the member. For 8 purposes of calculating an annuity under this subparagraph, the board shall use an assumed 9 interest rate of four percent. A person establishes membership in the system before July 1, 2003, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 for the purposes of this subparagraph if- (i) The person is a member of the system, or a judge member of the system, on the day imme- diately before July 1, 2003; or (ii) The person performed any period of service for a participating public employer before July 1, 2003, that is credited to the six-month period of employment required of an employee under ORS 238.015 before an employee may become a member of the system. (B) For a member who made contributions before August 21, 1981, the equivalent of a pension computed pursuant to this subsection as it existed immediately before that date. (c) As used in this subsection, "number of years of membership" means the number of full years of creditable service plus any remaining fraction of a year of creditable service. Except as other- wise provided in this paragraph, in determining a remaining fraction a full month shall be consid- ered as one-twelfth of a year and a major fraction of a month shall be considered as a full month. Membership of a school district employee, an employee of an institution of higher education engaged in teaching or other school activity or an employee of the Department of Human Services, the Oregon Youth Authority, the Department of Corrections or the State Board of Education engaged in teaching or other school activity at an institution supervised by the authority, board or depart- ment, for all portions of a school year in a calendar year in which the district school, institution of higher education or school activity at an institution so supervised in which the member is em- ployed is normally in session shall be considered as a full one-half year of membership. The number of years of membership of a member who received a refund of contributions as provided in ORS 237.976 (2) is limited to the number of years after the day before the date on which the refund was received. The number of years of membership of a member who is separated, for any reason other than death or disability, from all service entitling the member to membership in the system, who withdraws the amount credited to the member account of the member in the fund during absence from such service and who thereafter reenters the service of an employer participating in the system but does not repay the amount so withdrawn as provided in this chapter, is limited to the number of years after the day before the date of so reentering. (3) An additional life pension (nonrefund) for prior service credit, including military service, credited to the member at the time of first becoming a member of the system, as elsewhere provided in this chapter, which pension shall be provided by the contributions of the employer. EMPLOYER CONTRIBUTION RATES SECTION 29. (1) As soon as practicable after the effective date of this 2013 Act, the Public Employees Retirement Board shall: (a) Determine the savings in employer contributions that are attributable to the pro- [201 SB 754 1 visions of this 2013 Act; and 2 (b) Recalculate the contribution rates of all employers, pursuant to ORS 238.225, to re- 3 flect the provisions of this 2013 Act. 4 (2) The board shall issue corrected contribution rate orders to employers affected by re- 5 calculated rates under this section within 90 days after the effective date of this 2013 Act. 6 The corrected rates are effective July 1, 2013. 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 EXPEDITED REVIEW BY SUPREME COURT SECTION 30. (1) Jurisdiction is conferred on the Supreme Court to determine in the manner provided by this section whether this 2013 Act breaches any contract between members of the Public Employees Retirement System and their employers or violates any constitutional provision, including but not limited to impairment of contract rights of mem- bers of the Public Employees Retirement System under Article I, section 21, of the Oregon Constitution, or Article I, section 10, clause 1, of the United States Constitution. (2) A person who is adversely affected by this 2013 Act or who will be adversely affected by this 2013 Act may institute a proceeding for review by filing with the Supreme Court a petition that meets the following requirements: (a) The petition must be filed within 60 days after the effective date of this 2013 Act. (b) The petition must include the following: (A) A statement of the basis of the challenge; and (B) A statement and supporting affidavit showing how the petitioner is adversely af- fected. (3) The petitioner shall serve a copy of the petition by registered or certified mail upon the Public Employees Retirement Board, the Attorney General and the Governor. (4) Proceedings for review under this section shall be given priority over all other mat- ters before the Supreme Court. (5) The Supreme Court shall allow public employers participating in the Public Employees Retirement System to intervene in any proceeding under this section. (6)(a) The Supreme Court shall allow members of the Legislative Assembly to intervene in any proceeding relating to this 2013 Act. After a member intervenes in a proceeding re- lating to this 2013 Act, the member has standing to participate in the proceeding even if the member ceases to be a member of the Legislative Assembly. (b) A member of the Senate or House of Representatives who intervenes in a proceeding under this subsection may not use public funds to pay legal expenses incurred in intervening or participating in the proceeding. (7) In the event the Supreme Court determines that there are factual issues in the peti- tion, the Supreme Court may appoint a special master to hear evidence and to prepare re- commended findings of fact. (8) The court may not award attorney fees to a petitioner in a proceeding under this section. SEVERABILITY SECTION 31. It is the intent of the Legislative Assembly that all parts of this 2013 Act [21] SB 754 1 are independent and that if any part of this 2013 Act be held unconstitutional, all remaining 2 parts shall remain in force. 3 4 CAPTIONS 5 6 SECTION 32. The unit captions used in this 2013 Act are provided only for the conven- 7 fence of the reader and do not become part of the statutory law of this state or express any 8 legislative intent in the enactment of this 2013 Act. 9 10 EMERGENCY CLAUSE 11 12 SECTION 33. This 2013 Act being necessary for the immediate preservation of the public 13 peace, health and safety, an emergency is declared to exist, and this 2013 Act takes effect 14 on its passage. 15 [221 77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session Senate Bill 822 Sponsored by Senator DEVLIN, Representative BUCKLEY 4IIDAY F41-OAM The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the measure as introduced. Modifies cost-of-living adjustment under Public Employees Retirement System. Prohibits Public Employees Retirement Board from paying increased retirement benefits result- ing from state income taxation of payments made by board if person receiving payments does not pay Oregon income tax on benefits. Removes limitations on prohibition relating to date of retire- ment. Imposes similar prohibition for certain public employers that provide retirement benefits for police officers and firefighters other than by participation in Public Employees Retirement System. Directs Public Employees Retirement Board to recalculate employer contribution rates to reflect savings attributable to Act. Provides for expedited review by Supreme Court upon petition by adversely affected party. Declares emergency, effective on passage. 1 A BILL FOR AN ACT 2 Relating to public employee retirement; creating new provisions; amending ORS 237.635, 237.637, 3 238.360, 238.372, 238.374, 238.376, 238.378, 238.575, 238A.210 and 314.840; and declaring an 4 emergency. 5 Be It Enacted by the People of the State of Oregon: 6 7 COST-OF-LIVING ADJUSTMENT 8 9 SECTION 1. ORS 238.360 is amended to read; 10 238.360. (1) As soon as practicable after January 1 each year, the Public Employees Retirement 11 Board shall determine the percentage increase or decrease in the cost-of-living for the previous 12 calendar year, based on the Consumer Price Index (Portland area-all items) as published by the 13 Bureau of Labor Statistics of the U.S. Department of Labor for the Portland, Oregon, area. Prior to 14 July 1 each year the allowance which the member or the member's beneficiary is receiving or is 15 entitled to receive on August 1 for the month of July shall be multiplied by the percentage figure 16 determined, and the allowance for the next 12 months beginning July 1 adjusted to the resultant 17 amount. 18 (2) Such increase or decrease shall not exceed [two] 1.5 percent of any monthly retirement al- 19 lowance in any year and no allowance shall be adjusted to an amount less than the amount to which 20 the recipient would be entitled if no cost-of-living adjustment were authorized. 21 (3) The amount of any cost-of-living increase or decrease in any year in excess of the maximum T2 annual retirement allowance adjustment of [two] 1.5 percent shall be accumulated from year to year 23 and included in the computation of increases or decreases in succeeding years. 24 (4) Any increase in the allowance shall be paid from contributions of the public employer under 25 ORS 238.225. Any decrease in the allowance shall be returned to the employer in the form of a 26 credit against contributions of the employer under ORS 238.225. 27 SECTION 2. The amendments to ORS 238.360 by section 1 of this 2013 Act apply to all NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted. New sections are in boldfaced type. LC 8866 SB 822 1 adjustments to allowances made under ORS 238.360 on and after July 1, 2013, and before July 2 1, 2014. 3 SECTION 3. ORS 238.360, as amended by section 1 of this 2013 Act, is amended to read: 4 238.360. [(1) As soon as practicable after January 1 each year, the Public Employees Retirement 5 Board shall determine the percentage increase or decrease in the cost-of-living for the previous calendar 6 year, based on the Consumer Price Index (Portland area-all items) as published by the Bureau of Labor 7 Statistics of the U.S. Department of Labor for the Portland, Oregon, area. Prior to July 1 each year 8 the allowance which the member or the member's beneficiary is receiving or is entitled to receive on 9 August 1 for the month of July shall be multiplied by the percentage figure determined, and the al- 10 lowance for the next 12 months beginning July 1 adjusted to the resultant amount.] On July 1 of each 11 year, the Public Employees Retirement Board shall increase the yearly allowance that a 12 member or member's beneficiary receives or is entitled to receive, as provided in subsections 13 (2) and (3) of this section. The increase is first payable with the allowance that the member 14 or the member's beneficiary receives or is entitled to receive on August 1. 15 [(2) Such increase or decrease shall not exceed 1.5 percent of any monthly retirement allowance in 16 any year and no allowance shall be adjusted to an amount less than the amount to which the recipient 17 would be entitled if no cost-of-living adjustment were authorized.] 18 [(3) The amount of any cost-of-living increase or decrease in any year in excess of the maximum 19 annual retirement allowance adjustment of 1.5 percent shall be accumulated from year to year and in- 20 cluded in the computation of increases or decreases in succeeding years.] 21 (2)(a) If the member's or member's beneficiary's yearly allowance for the previous year 22 totaled $20,000 or less, the allowance shall be increased by two percent. 23 (b) If the member's or member's beneficiary's yearly allowance for the previous year 24 totaled more than $20,000 but not more than $40,000, the allowance shall be increased by $400 25 plus 1.5 percent of the amount of the yearly allowance exceeding $20,000. 26 (c) If the member's or member's beneficiary's yearly allowance for the previous year 27 totaled more than $40,000 but not more than $60,000, the allowance shall be increased by $700 28 plus one percent of the amount of the yearly allowance exceeding $40,000. 29 (d) If the member's or member's beneficiary's yearly allowance for the previous year 30 totaled more than $60,000, the allowance shall be increased by $900 plus .25 percent of the 31 amount of the yearly allowance exceeding $60,000. 32 (3) If a member or member's beneficiary has been receiving an allowance for less than 33 12 months on July 1 of any year, the board shall calculate the increase under subsection (2) 34 of this section on the basis of the yearly allowance the member or member's beneficiary 35 would have received if the member or member's beneficiary had received the monthly al- 36 lowance for 12 months. 37 (4) Any increase in the allowance shall be paid from contributions of the public employer under 38 ORS 238.225. [Any decrease in the allowance shall be returned to the employer in the form of a credit 39 against contributions of the employer under ORS 238.225.] 40 SECTION 4. The amendments to ORS 238.360 by section 3 of this 2013 Act apply to all 41 increases to allowances made under ORS 238.360 on and after July 1, 2014. 42 SECTION 5. ORS 238A.210 is amended to read: 43 238A.210. (1) As soon as practicable after January 1 each year, the Public Employees Retirement 44 Board shall determine the percentage increase or decrease in the cost of living for the previous 45 calendar year, based on the Portland-Salem, OR-WA, Consumer Price Index for All Urban Consumers [2] SB 822 1 for All Items, as published by the Bureau of Labor Statistics of the United States Department of 2 Labor. Before July 1 each year, the board shall adjust every pension payable under ORS 238A.180, 3 238A.185 and 238A.190, every disability benefit under ORS 238A.235 and every death benefit payable 4 under ORS 238A.230 by multiplying the monthly payment by the percentage figure determined by the 5 board. If a person has been receiving a pension or benefit for less than 12 months on July 1 of a 6 calendar year, the board shall make a pro rata reduction of the adjustment based on the number 7 of months that the pension or benefit was received before July 1 of the year. The adjustment shall 8 be made for the payments payable on August 1 and thereafter. 9 (2) An increase or decrease in the benefit payments under this section may not exceed [two] 1.5 10 percent in any year. A pension or death benefit may not be adjusted to an amount that is less than 11 the amount that would have been payable if no cost-of-living adjustment had been made since the 12 pension or death benefit first became payable. 13 SECTION 6. The amendments to ORS 238A.210 by section 5 of this 2013 Act apply to all 14 adjustments to pensions or benefits made under ORS 238A.210 on and after July 1, 2013, and 15 before July 1, 2014. 16 SECTION 7. ORS 238A.210, as amended by section 4 of this 2013 Act, is amended to read: 17 238A.210. [(1) As soon as practicable after January 1 each year, the Public Employees Retirement 18 Board shall determine the percentage increase or decrease in the cost of living for the previous calendar 19 year, based on the Portland-Salem, OR-WA, Consumer Price Index for All Urban Consumers for All 20 Items, as published by the Bureau of Labor Statistics of the United States Department of Labor. Before 21 July I each year, the board shall adjust every pension payable under ORS 238A.180, 238A.185 and l.L 238A.190, every disability benefit under ORS 238A.235 and every death benefit payable under ORS 23 238A-230 by multiplying the monthly payment by the percentage figure determined by the board. If a 24 person has been receiving a pension or benefit for less than 12 months on July 1 of a calendar year, 25 the board shall make a pro rata reduction of the adjustment based on the number of months that the 26 pension or benefit was received before July I of the year. The adjustment shall be made for the pay- 27 ments payable on August I and thereafter.] 28 [(2) An increase or decrease in the benefit payments under this section may not exceed 1.5 percent 29 in any year. A pension or death benefit may not be adjusted to an amount that is less than the amount 30 that would have been payable if no cost-of-living adjustment had been made since the pension or death 31 benefit first became payable.] 32 (1) On July 1 of each year, the board shall increase every pension payable under ORS 33 238A.180, 238A.185 and 238A.190, every disability benefit under ORS 238A.235 and every death 34 benefit payable under ORS 238A.230 as provided in subsections (2) and (3) of this section. The 35 increase shall be wade for the payments payable on August 1 and thereafter. 36 (2)(a) If a person's yearly pension or benefit for the previous year totaled $20,000 or less, 37 the pension or benefit shall be increased by two percent. 38 (b) If a person's yearly pension or benefit for the previous year totaled more than $20,000 39 but not more than $40,000, the pension or benefit shall be increased by $400 plus 1.5 percent 40 of the amount of the yearly pension or benefit exceeding $20,000. 41 (c) If a person's yearly pension or benefit for the previous year totaled more than $40,000 42 but not more than $60,000, the pension or benefit shall be increased by $700 plus one percent 43 of the amount of the yearly pension or benefit exceeding $40,000. 44 (d) If a person's yearly pension or benefit for the previous year totaled more than $60,000, 45 the pension or benefit shall be increased by $900 plus .25 percent of the amount of the yearly [3] SB 822 1 pension or benefit exceeding $60,000. 2 (3) If a person has been receiving a pension or benefit for less than 12 months on July 1 3 of any year, the board shall calculate the increase under subsection (2) of this section on the 4 basis of the yearly allowance the person would have received if the person had received the 5 pension or benefit for 12 months. 6 SECTION 8. The amendments to ORS 238A.210 by section 7 of this 2013 Act apply to all 7 increases to pensions or benefits made under ORS 238A.210 on and after July 1, 2014. 8 SECTION 9. (1) The amendments to ORS 238.360 and 238A.210 by sections 3 and 7 of this 9 2013 Act become operative on July 1, 2014. 10 (2) The Public Employees Retirement Board may take any action before the operative 11 date specified in subsection (1) of this section to enable the board, on and after the operative 12 date specified in subsection (1) of this section, to exercise all the duties, functions and pow- 13 ers conferred on the board by the amendments to ORS 238.360 and 238A.210 by sections 3 and 14 7 of this 2013 Act. 15 SECTION 10. ORS 238.575 is amended to read: 16 238.575. (1) Every monthly retirement allowance or pension payable to a judge member or sur- 17 viving spouse of a judge member under ORS 238.500 to 238.585 shall be adjusted annually [to reflect 18 the percentage increase or decrease in the cost of living] as provided in ORS 238.360. 19 (2) ORS 238.368 applies to judge members, and for that purpose the monthly retirement allow- 20 ance referred to in ORS 238.368 shall be the monthly retirement allowance payable to a judge 21 member or the monthly pension payable to the surviving spouse of a judge member under ORS 22 238.565 (3)(a). 23 24 TAXATION OF OUT-OF-STATE RETIREES 25 26 SECTION 11. ORS 238.372 is amended to read: 27 238.372. (1) Except as provided in ORS 238.372 to 238.384, the Public Employees Retirement 28 Board may not pay the increased [benefit] benefits provided by chapter 796, Oregon Laws 1991, 29 or chapter 569, Oregon Laws 1995, if the board receives notice under ORS 238.372 to 238.384 that 30 the payments made to the person under this chapter are not subject to Oregon personal income tax 31 under ORS 316.127 (9). 32 [(2) The provisions of ORS 238.372 to 238.384 do not apply to:] 33 [(a) A retired member of the system who is receiving payments under this chapter and whose ef- 34 fective date of retirement is before January 1, 2012;1 35 [(b) A person who is receiving payments under this chapter by reason of the retirement of a member 36 whose effective date of retirement is before January 1, 2012; and] 37 [(c) Any other person who receives payments under this chapter that began before January 1, 38 2012.1 39 [(3)] (2) The board shall give written notification of the provisions of ORS 238.372 to 238.384 to 40 all persons applying for or receiving payments under this chapter. 41 [(4)] (3) A person receiving payments under this chapter that are not increased under chapter 42 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, by reason of ORS 238.372 to 238.384 43 has no right or claim to the increased benefit provided by chapter 796, Oregon Laws 1991, or 44 chapter 569, Oregon Laws 1995, except as provided in ORS 238.372 to 238.384. 45 SECTION 12. ORS 238.374 is amended to read: [4l SB 822 1 238.374. (1) A person applying for payments under this chapter shall give a written statement 2 to the Public Employees Retirement Board that indicates whether the payments will be subject to 3 Oregon personal income tax under ORS 316.127 (9). If the person fails to provide the statement re- 4 quired by this subsection, or the statement indicates that the payments will not be subject to Oregon 5 personal income tax under ORS 316.127 (9), the board may not pay the person the increased 6 [benefit] benefits provided by chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995. 7 (2) If a person is receiving payments under this chapter that have not been increased under 8 chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, by reason of the provisions 9 of subsection (1) of this section, and thereafter the payments become subject to Oregon personal 10 income tax under ORS 316.127 (9), the person shall promptly notify the Public Employees Retire- 11 ment Board by written statement that the payments are subject to Oregon personal income tax 12 under ORS 316.127 (9). 13 (3) If a person is receiving payments under this chapter that have not been increased under 14 chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, by reason of the provisions 15 of subsection (1) of this section, and the board receives notice under subsection (2) of this section 16 that payments to the person under this chapter are subject to Oregon personal income tax under 17 ORS 316.127 (9), or determines under ORS 238.378 that payments to the person under this chapter 18 are subject to Oregon personal income tax under ORS 316.127 (9), the board shall initiate payment 19 of the increased [benefit] benefits provided by chapter 796, Oregon Laws 1991, or chapter 569, 20 Oregon Laws 1995. The increase in benefits becomes effective on the first day of the calendar year 21 following receipt of notice by the board. 22 SECTION 13. ORS 238.376 is amended to read: 23 238.376. (1) If a person is receiving payments under this chapter, and after the payments com- 24 mence the payments cease to be subject to Oregon personal income tax under ORS 316.127 (9), the 25 person shall promptly notify the Public Employees Retirement Board by written statement that the 26 payments are no longer subject to Oregon personal income tax under ORS 316.127 (9). The board 27 shall reduce any benefits payable to the person by the amount by which the benefits were increased 28 under chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995. The reduction in bene- 29 fits becomes effective on the first day of the calendar year following receipt of notice by the board. 30 (2) If a person is receiving payments under this chapter that have been reduced [under the pro- 31 visions of subsection (1) of this section] because the payments are not subject to Oregon personal 32 income tax under ORS 316.127 (9), and thereafter the payments become subject to Oregon personal 33 income tax under ORS 316.127 (9), the person shall promptly notify the board by written statement 34 that the payments are once again subject to Oregon personal income tax under ORS 316.129 (9). 35 (3) If a person is receiving payments under this chapter that have been reduced [under the pro- 36 visions of subsection (1) of this section] because the payments are not subject to Oregon personal 37 income tax under ORS 316.127 (9), and the board receives notice under subsection (2) of this sec- 38 tion that payments to the person under this chapter are once again subject to Oregon personal in- 39 come tax under ORS 316.127 (9), or determines under ORS 238.378 that payments to the person 40 under this chapter are once again subject to Oregon personal income tax under ORS 316.127 (9), 41 the board shall resume payment of the increased [benefit] benefits provided by chapter 796, Oregon 42 Laws 1991, or chapter 569, Oregon Laws 1995. The increase in benefits becomes effective on the 43 first day of the calendar year following receipt of notice by the board. 44 SECTION 14. ORS 238.378 is amended to read: 45 238.378. (1) Not less than once each calendar year, the Public Employees Retirement Board shall [5] SB 822 1 provide to the Department of Revenue information identifying persons to whom payments have been 2 made under this chapter. The Department of Revenue shall provide to the board such information 3 on Oregon personal income tax returns as the board deems necessary to determine whether the 4 payments made to the person under this chapter are subject to Oregon personal income tax under 5 ORS 316.127 (9). 6 (2) If the board determines that the payments made to a person under this chapter are not 7 subject to Oregon personal income tax under ORS 316.127 (9) based on information provided by the 8 Department of Revenue under this section, and the person is receiving the increased benefit pro- 9 vided by chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, the board shall re- 10 duce the benefits payable to the person as provided in ORS 238.376 (1). 11 (3) If the board determines that the payments made to a person under this chapter are subject 12 to Oregon personal income tax under ORS 316.127 (9) based on information provided by the De- 13 partment of Revenue under this section, and the person is not receiving the increased benefit pro- 14 vided by chapter 796, Oregon Laws 1991, or chapter 569, Oregon Laws 1995, the board shall 15 increase the benefits payable to the person as provided in ORS 238.374 (3) or 238.376 (3). 16 SECTION 15. ORS 237.635 is amended to read: 17 237.635. (1) Any public employer that provides retirement benefits to its police officers and 18 firefighters other than by participation in the Public Employees Retirement System pursuant to the 19 provisions of ORS 237.620 shall provide increases to the police officers and firefighters of the public 20 employer, both active and retired, that are equal to the increases in retirement benefits that are 21 provided for in this 1991 Act for active and retired police officers or firefighters who are members 22 of the Public Employees Retirement System, or shall provide to those police officers and firefighters 23 increases in retirement benefits that are the actuarial equivalent of the increases in retirement 24 benefits that are provided for in this 1991 Act for police officers or firefighters who are members 25 of the Public Employees Retirement System. No other retirement benefit or other benefit provided 26 by those public employers shall be decreased by the employer by reason of the increases mandated 27 by this section. 28 (2) The increased benefits provided for in this section apply only to police officers or firefighters 29 who establish membership before July 14, 1995, in a retirement plan or system offered by a public ,30 employer in lieu of membership in the Public Employees Retirement System pursuant to the pro- 31 visions of ORS 237.620. 32 (3) A public employer that is subject to the requirements of this section shall cease 33 paying increased retirement benefits under this section if the payments made to the person 34 are not subject to Oregon personal income tax under ORS 316.127 (9). A public employer that 35 is subject to the requirements of this section shall adopt procedures similar to those de- 36 scribed in ORS 238.372 to 238.384 for the purpose of implementing this subsection. The De- 37 partment of Revenue shall provide to a public employer that is subject to the requirements 38 of this section the information regarding Oregon personal income tax returns that the public 39 employer deems necessary to determine whether the retirement benefits paid to the person 40 by the public employer are subject to Oregon personal income tax under ORS 316.127 (9). 41 SECTION 16. ORS 237.637 is amended to read: 42 237.637. (1) Any public employer that provides retirement benefits to its police officers and 43 firefighters other than by participation in the Public Employees Retirement System pursuant to the 44 provisions of ORS 237.620 shall provide increases to the police officers and firefighters of the public 45 employer, both active and retired, that are equal to the increases in retirement benefits that are [6] SB 822 1 provided for in chapter 569, Oregon Laws 1995, for active and retired police officers or firefighters 2 who are members of the Public Employees Retirement System, or the public employer shall provide 3 to those police officers and firefighters increases in retirement benefits that are the actuarial 4 equivalent of the increases in retirement benefits that are provided for in chapter 569, Oregon Laws 5 1995, for police officers or firefighters who are members of the Public Employees Retirement System. 6 Increases provided under this section shall be reduced by the amount of any benefit increase pro- 7 vided by ORS 237.635 in the same manner that increases in retirement benefits that are provided for 8 in chapter 569, Oregon Laws 1995, for active and retired police officers or firefighters who are 9 members of the Public Employees Retirement System are reduced to reflect amounts paid to those 10 members under the provisions of chapter 796, Oregon Laws 1991. No other retirement benefit or 11 other benefit provided by those public employers shall be decreased by the employer by reason of 12 the increases mandated by this section. 13 (2) A public employer that is subject to the requirements of this section shall cease paying in- 14 creased retirement benefits under this section if the payments made to the person are not subject 15 to Oregon personal income tax under ORS 316.127 (9). A public employer that is subject to the re- 16 quirements of this section shall adopt procedures similar to those described in ORS 238.372 to 17 238.384 for the purpose of implementing this subsection. The Department of Revenue shall provide 18 to a public employer that is subject to the requirements of this section [such] the information re- 19 garding Oregon personal income tax returns [as] that the public employer deems necessary to de- 20 termine whether the retirement benefits paid to the person by the public employer are subject to 21 Oregon personal income tax under ORS 316.127 (9). 22 [(3) The provisions of subsection (2) of this section do not apply to:] 23 [(a) A retired police officer or firefighter who is receiving payments under the public employer's 24 plan and whose effective date of retirement is before January 1, 2012;1 25 [(b) A person who is receiving payments under the public employer's plan by reason of the retire- 26 ment of a police officer or firefighter whose effective date of retirement is before January 1, 2012; 27 and] 28 [(c) Any other person who receives payments under the public employer's plan that began before 29 January 1, 2012.1 30 SECTION 17. ORS 314.840, as amended by section 11, chapter 107, Oregon Laws 2012, is 31 amended to read: 32 314.840. (1) The Department of Revenue may: 33 (a) Furnish any taxpayer, representative authorized to represent the taxpayer under ORS 305.230 34 or person designated by the taxpayer under ORS 305.193, upon request of the taxpayer, represen- 35 tative or designee, with a copy of the taxpayer's income tax return filed with the department for 36 any year, or with a copy of any report filed by the taxpayer in connection with the return, or with 37 any other information the department considers necessary. 38 (b) Publish lists of taxpayers who are entitled to unclaimed tax refunds. 39 (c) Publish statistics so classified as to prevent the identification of income or any particulars 40 contained in any report or return. 41 (d) Disclose a taxpayer's name, address, telephone number, refund amount, amount due, Social 42 Security number, employer identification number or other taxpayer identification number to the ex- 43 tent necessary in connection with collection activities or the processing and mailing of correspond- 44 ence or of forms for any report, return or claim required in the administration of ORS 310.630 to 45 310.706, any local tax under ORS 305.620, or any law imposing a tax upon or measured by net in- [7] SB 822 1 come. 2 (2) The department also may disclose and give access to information described in ORS 314.835 3 to: 4 (a) The Governor of the State of Oregon or the authorized representative of the Governor: 6 (A) With respect to an individual who is designated as being under consideration for appoint- 6 ment or reappointment to an office or for employment in the office of the Governor. The information 7 disclosed shall be confined to whether the individual: 8 (i) Has filed returns with respect to the taxes imposed by ORS chapter 316 for those of not more 9 than the three immediately preceding years for which the individual was required to file an Oregon 10 individual income tax return. 11 (ii) Has failed to pay any tax within 30 days from the date of mailing of a deficiency notice or 12 otherwise respond to a deficiency notice within 30 days of its mailing. 13 (iii) Has been assessed any penalty under the Oregon personal income tax laws and the nature 14 of the penalty. 15 (iv) Has been or is under investigation for possible criminal offenses under the Oregon personal 16 income tax laws. Information disclosed pursuant to this paragraph shall be used only for the purpose 17 of making the appointment, reappointment or decision to employ or not to employ the individual in 18 the office of the Governor. 19 (B) For use by an officer or employee of the Oregon Department of Administrative Services duly 20 authorized or employed to prepare revenue estimates, or a person contracting with the Oregon De- 21 partment of Administrative Services to prepare revenue estimates, in the preparation of revenue 22 estimates required for the Governor's budget under ORS 291.201 to 291.226, or required for sub- 23 mission to the Emergency Board or the Joint Interim Committee on Ways and Means, or if the 24 Legislative Assembly is in session, to the Joint Committee on Ways and Means, and to the Legisla- 25 tive Revenue Officer or Legislative Fiscal Officer under ORS 291.342, 291.348 and 291.445. The De- 26 partment of Revenue shall disclose and give access to the information described in ORS 314.835 for 27 the purposes of this subparagraph only if: 28 (i) The request for information is made in writing, specifies the purposes for which the request 29 is made and is signed by an authorized representative of the Oregon Department of Administrative 30 Services. The form for request for information shall be prescribed by the Oregon Department of 31 Administrative Services and approved by the Director of the Department of Revenue. 32 (ii) The officer, employee or person receiving the information does not remove from the premises 33 of the Department of Revenue any materials that would reveal the identity of a personal or corpo- 34 rate taxpayer. 35 (b) The Commissioner of Internal Revenue or authorized representative, for tax administration 36 and compliance purposes only. 37 (c) For tax administration and compliance purposes, the proper officer or authorized represen- 38 tative of any of the following entities that has or is governed by a provision of law that meets the 39 requirements of any applicable provision of the Internal Revenue Code as to confidentiality: 40 (A) A state; 41 (B) A city, county or other political subdivision of a state; 42 (C) The District of Columbia; or 43 (D) An association established exclusively to provide services to federal, state or local taxing 44 authorities. 45 (d) The Multistate Tax Commission or its authorized representatives, for tax administration and 181 SB 822 1 compliance purposes only. The Multistate Tax Commission may make the information available to 2 the Commissioner of Internal Revenue or the proper officer or authorized representative of any 3 governmental entity described in and meeting the qualifications of paragraph (c) of this subsection. 4 (e) The Attorney General, assistants and employees in the Department of Justice, or other legal 5 representative of the State of Oregon, to the extent the department deems disclosure or access 6 necessary for the performance of the duties of advising or representing the department pursuant to 7 ORS 180.010 to 180.240 and the tax laws of this state. 8 (f) Employees of the State of Oregon, other than of the Department of Revenue or Department 9 of Justice, to the extent the department deems disclosure or access necessary for such employees 10 to perform their duties under contracts or agreements between the department and any other de- ll partment, agency or subdivision of the State of Oregon, in the department's administration of the 12 tax laws. 13 (g) Other persons, partnerships, corporations and other legal entities, and their employees, to 14 the extent the department deems disclosure or access necessary for the performance of such others' 15 duties under contracts or agreements between the department and such legal entities, in the 16 department's administration of the tax laws. 17 (h) The Legislative Revenue Officer or authorized representatives upon compliance with ORS 18 173.850. Such officer or representative shall not remove from the premises of the department any 19 materials that would reveal the identity of any taxpayer or any other person. 20 (i) The Department of Consumer and Business Services, to the extent the department requires 21 such information to determine whether it is appropriate to adjust those workers' compensation 22 benefits the amount of which is based pursuant to ORS chapter 656 on the amount of wages or 23 earned income received by an individual. 24 (j) Any agency of the State of Oregon, or any person, or any officer or employee of such agency 25 or person to whom disclosure or access is given by state law and not otherwise referred to in this 26 section, including but not limited to the Secretary of State as Auditor of Public Accounts under 27 section 2, Article VI of the Oregon Constitution; the Department of Human Services pursuant to 28 ORS 314.860 and 412.094; the Division of Child Support of the Department of Justice and district 29 attorney regarding cases for which they are providing support enforcement services under ORS 30 25.080; the State Board of Tax Practitioners, pursuant to ORS 673.710; and the Oregon Board of 31 Accountancy, pursuant to ORS 673.415. 32 (k) The Director of the Department of Consumer and Business Services to determine that a 33 person complies with ORS chapter 656 and the Director of the Employment Department to determine 34 that a person complies with ORS chapter 657, the following employer information: 35 (A) Identification numbers. 36 (B) Names and addresses. 37 (C) Inception date as employer. 38 (D) Nature of business. 39 (E) Entity changes. 40 (F) Date of last payroll. 41 (L) The Director of Human Services to determine that a person has the ability to pay for care 42 that includes services provided by the Eastern Oregon Training Center or the Department of Human 43 Services to collect any unpaid cost of care as provided by ORS chapter 179. 44 (m) The Director of the Oregon Health Authority to determine that a person has the ability to 45 pay for care that includes services provided by the Blue Mountain Recovery Center or the Oregon 191 SB 822 1 State Hospital or the Oregon Health Authority to collect any unpaid cost of care as provided by 2 ORS chapter 179. 3 (n) Employees of the Employment Department to the extent the Department of Revenue deems 4 disclosure or access to information on a combined tax report filed under ORS 316.168 is necessary 5 to performance of their duties in administering the tax imposed by ORS chapter 657. 6 (o) The State Fire Marshal to assist the State Fire Marshal in carrying out duties, functions and 7 powers under ORS 453.307 to 453.414, the employer or agent name, address, telephone number and 8 standard industrial classification, if available. 9 (p) Employees of the Department of State Lands for the purposes of identifying, locating and 10 publishing lists of taxpayers entitled to unclaimed refunds as required by the provisions of chapter 11 694, Oregon Laws 1993. The information shall be limited to the taxpayer's name, address and the 12 refund amount. 13 (q) In addition to the disclosure allowed under ORS 305.225, state or local law enforcement 14 agencies to assist in the investigation or prosecution of the following criminal activities: 15 (A) Mail theft of a check, in which case the information that may be disclosed shall be limited 16 to the stolen document, the name, address and taxpayer identification number of the payee, the 17 amount of the check and the date printed on the check. 18 (B) The counterfeiting, forging or altering of a check submitted by a taxpayer to the Department 19 of Revenue or issued by the Department of Revenue to a taxpayer, in which case the information 20 that may be disclosed shall be limited to the counterfeit, forged or altered document, the name, ad- 21 dress and taxpayer identification number of the payee, the amount of the check, the date printed 22 on the check and the altered name and address. 23 (r) The United States Postal Inspection Service or a federal law enforcement agency, including 24 but not limited to the United States Department of Justice, to assist in the investigation of the fol- 25 lowing criminal activities: 26 (A) Mail theft of a check, in which case the information that may be disclosed shall be limited 27 to the stolen document, the name, address and taxpayer identification number of the payee, the 28 amount of the check and the date printed on the check. 29 (B) The counterfeiting, forging or altering of a check submitted by a taxpayer to the Department 30 of Revenue or issued by the Department of Revenue to a taxpayer, in which case the information 31 that may be disclosed shall be limited to the counterfeit, forged or altered document, the name, ad- 32 dress and taxpayer identification number of the payee, the amount of the check, the date printed 33 on the check and the altered name and address. 34 (s) The United States Financial Management Service, for purposes of facilitating the offsets de- 35 scribed in ORS 305.612. 36 (t) A municipal corporation of this state for purposes of assisting the municipal corporation in 37 the administration of a tax of the municipal corporation that is imposed on or measured by income, 38 wages or net earnings from self-employment. Any disclosure under this paragraph may be made only 39 pursuant to a written agreement between the Department of Revenue and the municipal corporation 40 that ensures the confidentiality of the information disclosed. 41 (u) A consumer reporting agency, to the extent necessary to carry out the purposes of ORS 42 314.843. 43 (v) The Public Employees Retirement Board, to the extent necessary to carry out the purposes 44 of ORS 238.372 to 238.384, and to any public employer, to the extent necessary to carry out the 45 purposes of ORS 237.635 (3) and 237.637 (2). 1101 SB 822 1 (3)(a) Each officer or employee of the department and each person described or referred to in 2 subsection (2)(a), (e) to (k) or (n) to (q) of this section to whom disclosure or access to the tax in- 3 formation is given under subsection (2) of this section or any other provision of state law, prior to 4 beginning employment or the performance of duties involving such disclosure or access, shall be 5 advised in writing of the provisions of ORS 314.835 and 314.991, relating to penalties for the vio- 6 lation of ORS 314.835, and shall as a condition of employment or performance of duties execute a 7 certificate for the department, in a form prescribed by the department, stating in substance that the 8 person has read these provisions of law, that the person has had them explained and that the person 9 is aware of the penalties for the violation of ORS 314.835. 10 (b) The disclosure authorized in subsection (2)(r) of this section shall be made only after a 11 written agreement has been entered into between the Department of Revenue and the person de- 12 scribed in subsection (2)(r) of this section to whom disclosure or access to the tax information is 13 given, providing that: 14 (A) Any information described in ORS 314.835 that is received by the person pursuant to sub- 15 section (2)(r) of this section is confidential information that may not be disclosed, except to the ex- 16 tent necessary to investigate or prosecute the criminal activities described in subsection (2)(r) of 17 this section; 18 (B) The information shall be protected as confidential under applicable federal and state laws; 19 and 20 (C) The United States Postal Inspection Service or the federal law enforcement agency shall 21 give notice to the Department of Revenue of any request received under the federal Freedom of In- 22 formation Act, 5 U.S.C. 552, or other federal law relating to the disclosure of information. 23 (4) The Department of Revenue may recover the costs of furnishing the information described 24 in subsection (2)(k) to (m) and (o) to (q) of this section from the respective agencies. 25 26 EMPLOYER CONTRIBUTION RATES 27 28 SECTION 18. (1) As soon as possible after the effective date of this 2013 Act, the Public 29 Employees Retirement Board shall recalculate the contribution rates of all employers, pur- 30 suant to ORS 238.225, to reflect the provisions of this 2013 Act. 31 (2) The board shall issue corrected contribution rate orders to employers affected by re- 32 calculated rates under this section within 90 days after the effective date of this 2013 Act. 33 The corrected rates are effective July 1, 2013. 34 35 JUDICIAL REVIEW 36 37 SECTION 19. (1) Jurisdiction is conferred on the Supreme Court to determine in the 38 manner provided by this section whether this 2013 Act breaches any contract between 39 members of the Public Employees Retirement System and their employers, violates any 40 constitutional provision, including but not limited to impairment of contract rights of mem- 41 bers of the Public Employees Retirement System under Article I, section 21, of the Oregon 42 Constitution, or Article I, section 10, clause 1, of the United States Constitution, or is invalid 43 for any other reason. 44 (2) A person who is adversely affected by this 2013 Act or who will be adversely affected 45 by this 2013 Act may institute a proceeding for review by filing with the Supreme Court a Ull SB 822 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 petition that meets the following requirements: (a) The petition must be filed within 60 days after the effective date of this 2013 Act. (b) The petition must include the following: (A) A statement of the basis of the challenge; and (B) A statement and supporting affidavit showing how the petitioner is adversely af- fected. (3) The petitioner shall serve a copy of the petition by registered or certified mail upon the Public Employees Retirement Board, the Attorney General and the Governor. (4) Proceedings for review under this section shall be given priority over all other mat- ters before the Supreme Court. (5) The Supreme Court shall allow public employers participating in the Public Employees Retirement System to intervene in any proceeding under this section. (6) In the event the Supreme Court determines that there are factual issues in the peti- tion, the Supreme Court may appoint a special master to hear evidence and to prepare re- commended findings of fact. CAPTIONS SECTION 20. The unit captions used in this 2013 Act are provided only for the conven- ience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2013 Act. EMERGENCY CLAUSE SECTION 21. This 2013 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2013 Act takes effect on its passage. [12] L d Y m c O m p v ~O ~4-4 Up C6 A .d it G $~4 Q. O 00 ~ ~ ~ ccf U ' ~ Cr 'O U rn 3 45 p, ^ N U C. U v 0 1 cn ;3 ° p L) Cl p U r- M lz~ 0 '4=4 cC -td 0 ia, f,.. ~ v ° o = c o + 4- Cd U U 'O U c~ p F. 3 U ~ O N p n CO) 7 Cd 'tj a O O L cC w y 0] CC r F N 0 O t U O W "C U m U O C40 73 Q ^n cd 'C N O ¢ ^O r.+ O w U 4-1 ca O O rn rn U bA G] O C U U U i7. t r~n N tU. O CL, 04 v L ! Z +r O eC p O is cd N •'r "C7 u 7:1 co -15 N u U 'r=• y , e0 ate,, .D O i L." eG y p] O a. C` ran w U O cd u 4.4 N Cr N A Q E O A- cz U cC Y CC 3 3 3 n v u p C a tb u F-- m w LL A O cry O 7' • C O O 1-4 - to a q~j ~"Lr b~A C 4mA O N MA O r,~ rs~ 7 +C E N U 'r U eC v~ N t r-i Q +c+ L=r O N Qi O Qr G~ y" On > .2 o CL z Ow >1 0 E '0 :3 w 4.4 C4;; C a ce CIO 4- U U U N 'C O ' O F"' y Qu] e~ ,C O y ed U e'd CL) as o -d E y o o o a o FL 0 Fr U wo w W 1 1L V) H rfl Q C~ v en O r%j p o ~ H O -lot 72 b a v I H r 0 d O 4 . Qn c O U n U 6 •0 a m . ~ ~ rte, ~ ~ O p i a~ aV ar v rn + U 4) 3 z ~ d U 'd ~ A v c~ w. w yy y "y.., O O in, O GU CA O~ cd U r, m v U $:L• R+ N O O to 0 a 0 :j 0 t q U :O O o O to 0 0 0 U > ~ vcl S w 3 0 r + 2~, e~. N U O U cd A G. o b o ai it ~ bq 0 Q 1 O . , iq ~ CL p v ~ v c U O 78 r .i tm o a 0 O Q 75 O 0 ca O M W O d b4 CC CI C." O i ^C 0 u i. O O ;Eo V CI 0 0 Lrr 0 as 0 A z as a H O i. O U d b u C." b d R A oy f+ E~ A O O u 0 w s. a~ nn b O 6i it z O 3 O O O O v O O v cd U N a 0 a a O H 0 v O O v 40- 3 O O ~ O U t~ O N~ ~ b O O U O O ~ U 3- ~ o o c v U QJ) ~ O U W `n O 0 a Q U C O v-1 0 n. .~r O 4a ~ cd w 3 O w 3 o~ w ti O U O w~ a U ti vi V cl., viSn" ' v v U O bA y ~ N Q. ~ ,L1 ^O Q . ~ .O. ~ cbdA C~ it N O O eOC 1-4 0 o ~ ~ ~~dJ Cam] U U 7; y O w0 O U Cd bb y nn ~ 1. u O o 0 40 7, ~ u bA ~ •O 4 N 00 O r 4 Q o non ~ 0 U A a w r- N m nA -cs ~ O N U U TJ V7 U 4-1 0 o ,o ts v Q, i ¢ p. 4-b cd U _ Q O U cd 3 0 7 'C y a it O ~ ~ • to "C cd v~ O cd a~ S., ~ `d y dA o 3 -o o a) ecz 4-1 t r Ov "O O C " 4 M , & o - as ` Gog G Q" 44 n. m O a) '"ter U O O 'D C4-4 v~ O 7 U 7, O p' U w O Q _ Q,, ".5 U ~,-d Q y C Cn a3 o cz CI a O ° o A 3~ o o•~~, ~ o° a~ o O d O C] SLr o o p "O U cd 1-4 7, it p 0 0 O p 64 U 64 z Cd o o U o 4. O O 60 O O w r pp c~~.+ N 4~ GO) c 78 ao cn v 4" 0a bA m 0 ~ O ^d N vi H ~ U Gd v cy 0 .s_; va ~ R+ ~ CL ~ ~ N a - 2 r:+ 0 CLS iU•i U E-' ran a~ U O O Q C CIO V) 0 (n aa~z h ~ O Qz~~ (•1