2018-102-Minutes for Meeting February 05,2018 Recorded 3/21/2018Recorded in Deschutes County CJ2018-102
Nancy Blankenship, County Clerk
Commissioners' Journal 03/21/2018 2:47:43 PM
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Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97703-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Allen Conference Room
Monday, February 5, 2018
Present were Commissioners Tammy Baney, Anthony DeBone and Phil Henderson. Also present
were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David
Doyle, County Counsel; and Sharon Ross, Board Executive Assistant. Several citizens and one
representative of the media were in attendance.
CALL TO ORDER: Chair DeBone opened the meeting at 1:30 p.m.
ACTION ITEMS
1. US 20/ Tumalo Draft Agreement Review with ODOT and ODOT Project Updates in Deschutes
County
Chris Doty, Public Works Director, Bob Bryant, Della Mosier, and Bob Townsend presented the
Deschutes County project update along with consideration of a cooperative improvement
agreement regarding the Tumalo project. Mr. Doty reviewed the history of the US 20/Tumalo
project and summarized the cooperative agreement that includes a roundabout solution at the
intersection. The improvements to the US 20 / OB Riley -Cook Avenue intersection are ranked as
a high priority within the County's 20 -year capital improvement plan due to safety and
operating conditions at the county arterial intersection with the state highway. The goal is to
develop a funding partnership with Oregon Department of Transportation. The agreement
Minutes of Board of Commissioners' Work Session February 5, 2018 Page 1 of 6
specifies a $300,000 contribution from Deschutes County. The Board expressed support of the
project. Della Mosier explained the community involvement during the design process to allow
for public input. The agreement will be included on a Business Meeting agenda for
consideration of approval.
Bob Bryant introduced the US 97 and Terrebonne project as the next topic. Mr. Townsend
reported a consultant is being selected and the refinement plan covers the overall Terrebonne
area. A community outreach process should begin in March. A cost share is in place with
Deschutes County for safety improvements. There is also the funding of $20 million from House
Bill 2017. The consultant is requesting an advisory committee and to include one commissioner
as a County representative. Discussion held on high volumes of traffic on Highway 97.
Mr. Townsend reviewed the Wickiup Junction and US Highway 97 project including short term
and long term planning. He also reviewed the streetscape paving project in La Pine. The long-
term refinement plan would include a consultant selection within the next few months.
Commissioner DeBone noted he would be available for community outreach.
Ms. Mosier reported on the US 97 South Century Drive four -lane project and Vandevert Road
intersection. That project was also looked at to include a wildlife undercrossing. Ms. Mosier
commented on the safety concerns in that area and the need to make improvements sooner
with the funding they have already in place. The benefits of this phase would see significant
improvement for safety but the downside is when transitioning there is 42% throwaway costs.
A second phase of the project was reviewed. Ms. Mosier and Mr. Bryant commented on
funding through the federal lands access program.
Mr. Bryant gave an update on the US 97 Bend North Corridor. The environmental impact
statement was completed to address the congestion on the north side of Bend. The midterm
solution was addressed in 2008 and the city rezoned Juniper Ridge for development. US 97 at
Cooley Road was earmarked for $50 million to address the congestion. Those funds are
targeted for 2025 construction. An opportunity to apply for a federal grant was submitted and
should hear this summer if considered for the award. If awarded the funding then the project
would be valued $120 -150 million. If the award is granted the project completion would be
have a target completion of 2021. This spring the solutions will include project consideration
for either the $50 million project or the higher funded project opportunity.
US 20 / Cooley and US 20 Old Bend Redmond project. A draft concept plan was reviewed to
include a multi -lane roundabout. As a part of the project, there is also a pavement preservation
project. There are plans for intersection improvement. A consultant will conduct a traffic safety
analysis. Tentative schedule is construction completion in the year 2020. The proposed
roundabout will be constructed to manage increased traffic due to the planned construction of
the Fred Meyer development located adjacent to US 20 between Robal Road and Cooley Road.
Commissioner Baney suggested the need for community education on travel in roundabouts.
Training and video concepts are being planned.
Mr. Townsend reported on the US Highway 97 from Bend to Redmond and there is presently $5
million for this project. A consultant is working on safety improvements and long term planning.
The intent is to go to construction in 2020 but there are some safety improvements that can be
done immediately.
Minutes of Board of Commissioners' Work Session February 5, 2018 Page 2 of 6
Mr. Bryant stresses the priority of enhancing safety. He asks the Board to consider the US 20 at
Tumalo improvement agreement and the US 97 and South Century Drive to Vandevert and
whether there is an opportunity to submit for funding.
RECESS: A short break was taken at 2:29 p.m. and the meeting was reconvened at 2:33 p.m.
2. Planning Commission Recommendation to Board to Not Initiate a Text Amendment on Code
Enforcement & Land Use
Community Development Department representatives Peter Russell and Nick Lelack and
Assistant Legal Counsel Adam Smith presented this discussion item. Staff were directed to take
this issue to Planning Commission. Planning Commission took written testimony. Mr. Russell
noted code violations on a recent marijuana production application. Mr. Russell reviewed
concepts by reviewing current code and proposed code. Planning Commission recommended
keeping the Code as is. Mr. Lelack clarified if the current process is maintained we still need to
amend county code and the procedures process relative to the code enforcement provisions.
Mr. Lelack spoke on land use applications. Commissioner Henderson is concerned that this
would be the land use process tool and is in support of not making a change. Commissioner
Baney wondered what a remedy for intervention would be to stop the process with regard to
code violations. Mr. Russell responded on the code violation process. Commissioner Baney
suggested a review within a year. This item will comeback to the Board.
3. Planning Commission Recommendation — Flood Plain Zone Amendments
This item was audio recorded. Community Development Department representatives Matt
Martin and Nick Lelack along with Assistant Legal Counsel Adam Smith presented this item. Mr,
Martin gave an update on the process and gave history of the item. The Board had directed
staff to take the amendments to the Planning Commission. Mr. Martin reviewed the
recommendations made by the Planning Commission that includes a riparian area protection
plan. With regard to cluster and planned developments, the Planning Commission chose to not
make changes. On conservation easements, no conflict was sited. This Thursday's Planning
Commission will include conservation easement discussion.
Commissioner Henderson would like a discussion with Community Development Department on
locations and impacts of flood plain. Commissioner Baney also agreed on need for the
information regarding impacts.
Minutes of Board of Commissioners' Work Session February 5, 2018 Page 3 of 6
Mr. Martin asked for the next steps on the flood plain amendments. Mr. Martin inquired if an
additional public hearing would be required. Based on the testimony received by the Planning
Commission it shows there would be no need for additional written record time period. Mr.
Martin stated there was considerable testimony on the minimum parcel size and fencing.
A zone change and text amendment and plan amendment to the comprehensive plan would be
required. Mr. Lelack noted the testimony is posted on the Deschutes County website.
Commissioners Henderson and DeBone would like more time to review and possibly have
continued discussion at an additional Work Session. Commissioner Baney is leaning towards not
having another public hearing but agrees with the additional work session discussion.
COMMISSIONER REPORTS:
Commissioner DeBone introduced a new item on the standing agenda.
• Commissioner Baney reported on the Oregon housing stability meeting and working on
statewide housing challenges and barriers of affordable housing.
Commissioner Henderson reported on the US Attorney marijuana summit last Friday. The
primary emphasis was on the issue of excess marijuana being grown in Oregon. There were
seven US attorney's, FBI, DEA, OLCC, OHA, and law enforcement, legislative and county staff and
there was great feedback on impacts of marijuana grows. There are reports that 80% of
marijuana produced in Oregon has reached 30 different states outside of Oregon by illegal
transport. There is concern with organized crime and illegal activity. Southern Oregon is
proposing a tax to fund law enforcement, which isn't being supported by the marijuana grows.
The postal service has been infiltrated by the organized crime to ship marijuana. Commissioner
Henderson explained what Deschutes County sees as challenges. OHA said there would be a
hotline available regarding the medical marijuana world. Commissioner Baney commented on a
draft letter from the District Attorney, Sheriff, and Deschutes County to ask for knowledge on
the medical marijuana grow operations. Commissioner Baney asked to put in a request from
the Sheriff on the status of that letter.
• Commissioner DeBone was recently gone for a personal trip to San Diego for a marine
graduation. This week is the EDCO annual luncheon. Tomorrow he is going on an EMS ride
along with Redmond Fire.
• Commissioner Henderson has a Basin Study Work Group meeting tomorrow.
• Commissioner DeBone noted the first Legislative Conference Call tomorrow morning.
• Joe Stutler has agreed to meet with Commissioner Baney and the Hoscheks in Sunriver
regarding their concerns on fire management. Commissioner DeBone noted the seriousness of
Minutes of Board of Commissioners' Work Session February 5, 2018 Page 4 of 6
maintaining fire adaptive communities and has expressed the County does have fire
management as a priority.
OTHER ITEMS:
CITY CLUB EVENT: County Administrator Anderson announced a City Club event next Thursday
on PERS. Mr. Anderson is on vacation next week and City Club asked if the County could speak
to the impact to the County. Commissioners DeBone and Henderson and Wayne Lowry will be
present.
RADIO SYSTEM UPDATE: Commissioner Henderson commented on the Public Meeting Law and
requested any issues with the radio system be an actual item on the agenda instead of having
the topic under Other Items. In his opinion, it is inappropriate not to have it published on the
agenda. County Administrator Anderson suggested it could be posted on the Work Session
agenda for Wednesday. Commissioner Baney sees the challenge of trying to seek a solution and
may be posted as a standing agenda item until it is resolved. Commissioner DeBone reported on
the letter to respond to the Bulletin and suggested that letter be brought up for discussion at
the Work Session today. Commissioner DeBone stressed the need for the Board to work
together. Commissioner Baney noted the layout of a special service district is different than a
regular county department and the County is the governing body. Commissioner Henderson
requested this item be noticed and held in a public meeting. Commissioner DeBone requested
to comment on the analog and trunk system technology and the complicated system and would
have liked to ask Steve Reinke to have that conversation regarding information on technology
for Wednesday. Commissioner Henderson again notes the importance of including these items
on the published agenda. The 911 Radio Update will be posted on a revised agenda for
Wednesday, February 7th
BRIDGE: Commissioner Baney has received inquiries on the footbridge and the proposed bill.
There has been no formal request. Bicycle Pedestrian Advisory Committee has requested a
community dialogue around the request. Request for Don Horton, Executive Director of Bend
Parks and Recreation to present the item for discussion with the Board. Commissioner
Henderson feels he is inclined to take a position on the item but would like to also have that
presentation and do a site visit. Commissioner DeBone noted this may be a discussion on the
Legislative Session conference call tomorrow. County Administrator Anderson will contact BPAC
and the Bend Parks and Recreation to present at a work session along with Peter Russell, Senior
Transportation Planner.
Commissioner Henderson took a tour of the building that was requested for a winter emergency
shelter. He expressed concerns of a building that is underutilized and has concerns with staffing
and the use of the space. Commissioner Baney inquired if Mr. Kropp had found the statistics of
needed locations. Mr. Kropp doesn't know but noted emergency shelters are operated on
evenings where the temperature is below 25 degrees would be able to be used for a temporary
shelter. Commissioner Baney asked to find the data on the use. Commissioner Henderson
inquired why this building is being proposed as a shelter? Commissioner Baney requested more
information.
Minutes of Board of Commissioners' Work Session February 5, 2018 Page 5 of 6
EXECUTIVE SESSION:
At the time of 3:54 p.m., the Board went into Executive Session under ORS 192.660 (2) (e) Executive
Session. The Board came out of Executive Session at 4:20 p.m.
OTHER ITEMS continued:
County Administrator Anderson spoke to the revision of the agenda for Wednesday to include 911 Radio
System Briefing and Update. Commissioner Baney inquired if some of our partners should be invited to
the discussion. County Administrator Anderson will contact Chief Porter.
ADJOURN: Being no further discussion, the meeting adjourned at 4:25 p.m.
DATED this Day of 2018 for the Deschutes County Board of
Commissioners.
Anthony DeBone, Chair
Philip G. Hendekson, Vice Chair
N FV V 11
ATfES 0_
Tammy Baney, Com ssioner
Recording Secretary
Minutes of Board of Commissioners' Work Session February 5, 2018 Page 6 of 6
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
WORK SESSION AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 PM, MONDAY, FEBRUARY 5, 2018
Allen Conference Room - Deschutes Services Building, 2ND Floor — 1300 NW Wall Street — Bend
Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the
meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to
cancellation without notice. This meeting is open to the public and interested citizens are invited to attend.
Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed,
although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or
have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work
Sessions are not normally video or audio recorded, but written minutes are taken for the record.
CALL TO ORDER
ACTION ITEMS
US 20/Tumalo Draft Agreement Review with ODOT and ODOT Project Updates in
Deschutes County - Chris Doty, Public Works Director
2. Planning Commission Recommendation to Board to Not Initiate a Text Amendment on
Code Enforcement & Land Use - Peter Russell, Senior Planner
3. Planning Commission Recommendation - Flood Plain Zone Amendments - Matthew
Martin, Senior Planner
COMMISSIONERS REPORTS
EXECUTIVE SESSION
At any time during the 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(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific
guidelines, are open to the media.
Board of Commissioners Work Session Agenda Monday, February 5, 2018 Page 1 of 2
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
ADJOURN
Deschutes County encourages persons with disabilities to participate in all programs and
activities. To request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners Work Session Agenda Monday, February 5, 2018 Page 2 of 2
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Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of February 5, 2018
DATE: January 24, 2018
FROM: Chris Doty, Road Department, 541-322-7105
TITLE OF AGENDA ITEM:
US 20/Tumalo Draft Agreement Review with ODOT and ODOT Project Updates in Deschutes
County
RECOMMENDATION & ACTION REQUESTED:
Initial presentation and discussion item only.
ATTENDANCE: Chris Doty (Road Department), Della Mosier, Bob Bryant and others (ODOT)
SUMMARY: Improvements to the US 20/013 Riley -Cook Avenue intersection are ranked as a
high priority within the County's 20 -year Capital Improvement Plan due to safety and operating
conditions at the county arterial intersection with the state highway. Identification of a long
term solution (led by ODOT) initially began in 2008 and resulted in development of two grade
separated interchange concepts and completion of the requisite Environmental Assessment
process. These concepts were referenced in the Deschutes County TSP with an additional
requirement to facilitate a public process prior to design of final improvements. Due to lack of
identified funding in 2012, the project did not proceed forward.
With passage of the recent transportation funding package (HB 2017), Deschutes County has
prioritized improvements at US 20/013 Riley -Cook Avenue. New revenue will allow for a
significant contribution to the project in a potential funding partnership with ODOT.
The next step in moving the project forward is selecting a final design configuration and
preparing a Design Acceptance Package (DAP) - which is approximately 30% plans, and the
final step before development of construction plans and eventual construction. To that end,
ODOT has prepared a Cooperative Improvement Agreement (#32387) with Deschutes County
to complete the Design Acceptance Package and take the next step towards pursuit of project
funding and eventual construction. The Cooperative Improvement Agreement specifies a
Deschutes County contribution of $300,000 to the $1.1 M planning scope, of which $400,000
has already been completed. Prior to development of the Design Acceptance Package, a
roundabout alternative will also be analyzed and considered in addition to the two interchange
concepts. A roundabout was not considered in the initial concept development process due to
a roundabout moratorium that was in effect statewide for ODOT. A roundabout could provide
a solution option at a lower cost than grade separation.
Unlike Deschutes County, ODOT does not have a specified funding source for construction as
HB 2017 did not earmark the Tumalo project, nor did it contribute significant funding to ODOT's
Enhance program - a typical funding source for projects of this nature. Potential funding
sources include ODOT's Safety Program and Fix --it Program, however these programs are
limited in funding and scope.
The goal is to continue to move the project forward with the goal of leveraging an ODOT
investment with a robust match from Deschutes County at a point in which the dust has settled
post -HB 2017 implementation.
In addition to discussion of the Tumalo Cooperative Improvement Agreement, ODOT intends
to update the BOCC at this Work Session on all active projects and initiatives in Deschutes
County, such as the US 97 North Corridor Project, US 20/Cooley Road Project, US
97Nandevert Project US 97/Wickiup, the Terrebonne Refinement Plan, and others.
Misc. Contracts and Agreements
No. 32387
COOPERATIVE IMPROVEMENT AGREEMENT
US20 @ Tumalo Environmental Assessment
Deschutes County
THIS AGREEMENT is made and entered into by and between the STATE OF
OREGON, acting by and through its Department of Transportation, hereinafter referred
to as "State;" and DESCHUTES COUNTY, acting by and through its elected officials,
hereinafter referred to as "County," both herein referred to individually or collectively as
"Party" or "Parties."
RECITALS
The McKenzie -Bend Highway, US Route 20, State Highway No. 17, is a part of
the state highway system under the jurisdiction and control of the Oregon
Transportation Commission (OTC). OB Riley Road and Cook Avenue are a
part of the county road system under the jurisdiction and control of the County.
2. By the authority granted in Oregon Revised Statutes (ORS) 190.110, 366.572
and 366.576, State may enter into cooperative agreements with counties, cities
and units of local governments for the performance of work on certain types of
improvement projects with the allocation of costs on terms and conditions
mutually agreeable to the contracting parties.
3. State, by ORS 366.220, is vested with complete jurisdiction and control over
the roadways of other jurisdictions taken for state highway purposes. By the
authority granted by ORS 373.020, the jurisdiction extends from curb to curb,
or, if there is no regular established curb, then control extends over such
portion of the right of way as may be utilized by State for highway purposes.
Responsibility for and jurisdiction over all other portions of a county roadway
remains with the County.
4. By the authority granted in ORS 366.425, State may accept deposits of money
or an irrevocable letter of credit from any county, city, road district, person,
firm, or corporation for the performance of work on any public highway within
the State. When said money or a letter of credit is deposited, State shall
proceed with the Project. Money so deposited shall be disbursed for the
purpose for which it was deposited.
5. The population growth in Tumalo and the surrounding area and the increase of
traffic on US 20 are increasing congestion and backups on side streets and
making it difficult for drivers to turn onto the highway from County streets. There
have been a total of 21 crashes on US 20 between the intersections of 5th
Street and Cook Avenue/OB Riley Road over a six year period from January 1,
2009 to December 31, 2014. Of these crashes, 14 were intersection related. In
2014, the Average Daily Traffic for US20 in Tumalo was 14,700 vehicles per
day. This is estimated to increase to over 23,700 vehicles per day by 2035.
Key No. 14892
Deschutes County/ODOT
Agreement No. 32387
NOW THEREFORE, the premises being in general as stated in the foregoing
Recitals, it is agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
Under such authority, State and County agree to State or State's consultant
performing preliminary engineering to include work to develop preferred
alternatives between mile point 14.10 and mile point 15.11 on US20 for review
under a public process, hereinafter referred to as "Project". The Project includes
defining & clarifying alternatives to include 1-3, C-4 and a roundabout alternative,
and following acceptance of a preferred alternative by the Parties through a public
process, performing preliminary design up to completion of the design acceptance
phase (DAP). The location of the Project is approximately as shown on the sketch
map attached hereto, marked Exhibit A, and by this reference made a part hereof.
Exhibits 1-3 and C-4 are included as a part of Exhibit A.
2. The Project will be financed at an estimated cost of $1,100,000 in Federal, State
and County funds and shall be funded as follows:
FUND SOURCE
AMOUNT
Federal
$717,840
State
$82,160
County Contribution
$300,000
TOTAL
$1,100,000
The funds shall be allocated as follows:
PHASE
AMOUNT
Scoping and Environmental Assessment
(Completed)
$400,000
Intersection Traffic Analysis
$100,000
Preliminary Engineering to Design
Acceptance
$600,000
TOTAL
$1,100,000
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Deschutes County/ODOT
Agreement No. 32387
The estimate for the total Project cost is subject to change. State shall be
responsible for any nonparticipating costs, and Project costs beyond the estimate.
3. Parties agree to work collaboratively and in good faith to execute any additional
amendment(s) to this agreement, that may be necessary as the Project develops,
including but not limited to:
a. Changes to the Project description, deliverables and obligations.
b. Changes to the Project budget or scope.
4. The term of this Agreement shall begin on the date all required signatures are
obtained and shall terminate upon completion of the Project and final payment or
ten (10) calendar years following the date all required signatures are obtained,
whichever is sooner.
5. Parties agree that this Agreement may be amended to include additional funds for
the final design and construction of the preferred alternative selected by the
Parties under TERMS OF AGREEMENT, Paragraph 1.
COUNTY OBLIGATIONS
1. County shall upon receipt of a fully executed copy of this Agreement and upon a
subsequent letter of request from State, forward to State an advance deposit or
irrevocable letter of credit in the amount of $300,000 for the Project, said amount
being County's contribution for work performed by State at County's request
under State Obligations paragraph 1. County's contribution shall not exceed
$300,000 subject to TERMS OF AGREEMENT, Paragraphs 2 and 3 above.
2. All employers, including County, that employ subject workers who work under
this Agreement in the State of Oregon shall comply with ORS 656.017 and
provide the required Workers' Compensation coverage unless such employers
are exempt under ORS 656.126. Employers Liability insurance with coverage
limits of not less than $500,000 must be included. County shall ensure that each
of its contractors complies with these requirements.
3. County shall perform the service under this Agreement as an independent
contractor and shall be exclusively responsible for all costs and expenses related
to its employment of individuals to perform the work under this Agreement
including, but not limited to, retirement contributions, workers' compensation,
unemployment taxes, and state and federal income tax withholdings.
4. County acknowledges and agrees that State, the Oregon Secretary of State's
Office, the federal government, and their duly authorized representatives shall
have access to the books, documents, papers, and records of County which are
directly pertinent to the specific Agreement for the purpose of making audit,
examination, excerpts, and transcripts for a period of six (6) years after final
3
Deschutes County/ODOT
Agreement No. 32387
payment (or completion of Project -- if applicable.) Copies of applicable records
shall be made available upon request. Payment for costs of copies is
reimbursable by State.
5. County shall comply with all federal, state, and local laws, regulations, executive
orders and ordinances applicable to the work under this Agreement, including,
without limitation, the provisions of ORS 2798.220, 279B.225, 279B.230,
2798.235 and 2798.270 incorporated herein by reference and made a part
hereof. Without limiting the generality of the foregoing, County expressly agrees
to comply with (i) Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504
of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990
and ORS 659A.142; (iv) all regulations and administrative rules established
pursuant to the foregoing laws; and (v) all other applicable requirements of
federal and state civil rights and rehabilitation statutes, rules and regulations.
6. County acknowledges the effect and scope of ORS 105.755 and agrees that all
acts necessary to complete construction of the Project which may alter or change
the grade of existing county roads are being accomplished at the direct request
of County.
7. County grants State the right to enter onto County right of way for the
performance of duties as set forth in this Agreement.
8. County certifies and represents that the individual(s) signing this Agreement has
been authorized to enter into and execute this Agreement on behalf of County,
under the direction or approval of its governing body, commission, board,
officers, members or representatives, and to legally bind County.
9. County's Project Manager for this Project is Cody Smith — County Engineer,
61150 SE 27th Street, Bend, OR 97702, (541) 322-7113,
Cody. smith(D-deschutes.org, or assigned designee upon individual's absence.
County shall notify the other Party in writing of any contact information changes
during the term of this Agreement.
STATE OBLIGATIONS
1. State or State's Consultant shall perform the work described in TERMS OF
AGREEMENT, Paragraph 1.
2. State certifies, at the time this Agreement is executed, that sufficient funds are
available and authorized for expenditure to finance costs of this Agreement within
State's current appropriation or limitation of the current biennial budget.
3. State shall, upon execution of the agreement, forward to County a letter of request
for an advance deposit or irrevocable letter of credit in the amount of $300,000 for
payment of work performed by State at County's request.
rd
Deschutes County/ODOT
Agreement No. 32387
4. State, or its consultant, shall conduct the necessary field surveys, environmental
studies, traffic investigations, preliminary engineering and design work required to
produce and provide Design Acceptance plans, specifications and cost estimates
for the highway Project.
5. State's Project Manager for this Project is Bob Townsend — Region 4 Construction
Manager, 63055 N. Highway 97, Bldg M, Bend, OR 97703, (541) 388-6252,
Robert. L.TOWNSEND(a-odot.state.or.us, or assigned designee upon individual's
absence. State shall notify the other Party in writing of any contact information
changes during the term of this Agreement.
GENERAL PROVISIONS
1. This Agreement may be terminated by mutual written consent of both Parties.
2. State may terminate this Agreement effective upon delivery of written notice to
County, or at such later date as may be established by State, under any of the
following conditions:
a. If County fails to provide services called for by this Agreement within
the time specified herein or any extension thereof.
b. If County fails to perform any of the other provisions of this
Agreement, or so fails to pursue the work as to endanger
performance of this Agreement in accordance with its terms, and after
receipt of written notice from State fails to correct such failures within
ten (10) days or such longer period as State may authorize.
c. If County fails to provide payment of its share of the cost of the
Project.
d. If State fails to receive funding, appropriations, limitations or other
expenditure authority sufficient to allow State, in the exercise of its
reasonable administrative discretion, to continue to make payments
for performance of this Agreement.
e. If federal or state laws, regulations or guidelines are modified or
interpreted in such a way that either the work under this Agreement is
prohibited or State is prohibited from paying for such work from the
planned funding source.
3. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
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Deschutes County/ODOT
Agreement No. 32387
4. If any third party makes any claim or brings any action, suit or proceeding alleging
a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against
State or County with respect to which the other Party may have liability, the
notified Party must promptly notify the other Party in writing of the Third Party
Claim and deliver to the other Party a copy of the claim, process, and all legal
pleadings with respect to the Third Party Claim. Each Party is entitled to
participate in the defense of a Third Party Claim, and to defend a Third Party
Claim with counsel of its own choosing. Receipt by a Party of the notice and
copies required in this paragraph and meaningful opportunity for the Party to
participate in the investigation, defense and settlement of the Third Party Claim
with counsel of its own choosing are conditions precedent to that Party's liability
with respect to the Third Party Claim.
5. With respect to a Third Party Claim for which State is jointly liable with County (or
would be if joined in the Third Party Claim), State shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by County in
such proportion as is appropriate to reflect the relative fault of State on the one
hand and of County on the other hand in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of State on the one
hand and of County on the other hand shall be determined by reference to,
among other things, the Parties' relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. State's contribution amount in
any instance is capped to the same extent it would have been capped under
Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if State
had sole liability in the proceeding.
6. With respect to a Third Party Claim for which County is jointly liable with State (or
would be if joined in the Third Party Claim), County shall contribute to the amount
of expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by State in such
proportion as is appropriate to reflect the relative fault of County on the one hand
and of State on the other hand in connection with the events which resulted in
such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of County on the one hand
and of State on the other hand shall be determined by reference to, among other
things, the Parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such expenses,
judgments, fines or settlement amounts. County's contribution amount in any
instance is capped to the same extent it would have been capped under Oregon
law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole
liability in the proceeding.
0
Deschutes County/ODOT
Agreement No. 32387
7. As federal funds are involved in this Agreement, Exhibits B and C are attached
hereto and by this reference made a part of this Agreement, and are hereby
certified to by Agency representative.
8. Agency, as a recipient of federal funds, pursuant to this Agreement with the State,
shall assume sole liability for Agency's breach of any federal statutes, rules,
program requirements and grant provisions applicable to the federal funds, and
shall, upon Agency's breach of any such conditions that requires the State to
return funds to the Federal Highway Administration, hold harmless and indemnify
the State for an amount equal to the funds received under this Agreement; or if
legal limitations apply to the indemnification ability of Agency, the indemnification
amount shall be the maximum amount of funds available for expenditure,
including any available contingency funds or other available non -appropriated
funds, up to the amount received under this Agreement.
9. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected mediator
or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.
10. This Agreement may be executed in several counterparts (facsimile or otherwise)
all of which when taken together shall constitute one agreement binding on all
Parties, notwithstanding that all Parties are not signatories to the same
counterpart. Each copy of this Agreement so executed shall constitute an original.
11. This Agreement and attached exhibits constitute the entire agreement between
the Parties on the subject matter hereof. There are no understandings,
agreements, or representations, oral or written, not specified herein regarding this
Agreement. No waiver, consent, modification or change of terms of this
Agreement shall bind either Party unless in writing and signed by both Parties and
all necessary approvals have been obtained. Such waiver, consent, modification
or change, if made, shall be effective only in the specific instance and for the
specific purpose given. The failure of State to enforce any provision of this
Agreement shall not constitute a waiver by State of that or any other provision.
THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and conditions.
This Project is in the 2008-2011 Statewide Transportation Improvement Program,
(Key #14892) that was adopted by the Oregon Transportation Commission (or
subsequently approved by amendment to the STIP).
7
Deschutes County/ODOT
Agreement No. 32387
DESCHUTES COUNTY, by and through its
elected officials
By
Chair
Date
Commissioner
By
Commissioner
Date
APPROVED AS TO LEGAL SUFFICIENCY
By
Counsel
Date
County Contact:
Cody Smith — County Engineer
61150 SE 27th Street
Bend, OR 27702
(541) 322-7113
Cody. s m ith (cbd esch utes.org
State Contact:
Bob Townsend — Region 4 Construction
Manager
63055 N. Highway 97, Bldg M
Bend, OR 97703
(541) 388-6252
Robert. L.TOWNSENDCa_)odot.state. or. us
E:?
STATE OF OREGON, by and through
its Department of Transportation
By
Highway Division Administrator
Date
APPROVAL RECOMMENDED
By
Region 4 Manager
Date
By
Region 4 Traffic Manager
Date
By
Date
APPROVED AS TO LEGAL
SUFFICIENCY
By: Herbert Lovejoy AAG by email
Assistant Attorney General
Date: 1 /18/18
Deschutes County/ODOT
Agreement No. 32387
EXHIBIT A — Project Location Map(s)
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Agreement No. 32387
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Deschutes County/ODOT
Agreement No. 32387
For purposes of Exhibits B and C, references to Department shall mean STATE, references to Contractor
shall mean Oregon Department of Transportation, and references to Contract shall mean Agreement.
EXHIBIT B (Local Agency or State Agency)
CONTRACTOR CERTIFICATION
Contractor certifies by signing this Contract that Contractor has not:
(a) Employed or retained for a commission, percentage, brokerage, contingency fee or other
consideration, any firm or person (other than a bona fide employee working solely for me or the
above Contractor) to solicit or secure this Contract,
(b) agreed, as an express or implied condition for obtaining this Contract, to employ or retain the
services of any firm or person in connection with carrying out the Contract, or
(c) paid or agreed to pay, to any firm, organization or person (other than a bona fide employee
working solely for me or the above Contractor), any fee, contribution, donation or consideration
of any kind for or in connection with, procuring or carrying out the Contract, except as here
expressly stated (if any):
Contractor further acknowledges that this certificate is to be furnished to the Federal Highway
Administration, and is subject to applicable State and Federal laws, both criminal and civil.
DEPARTMENT OFFICIAL CERTIFICATION
Department official likewise certifies by signing this Contract that Contractor or his/her representative has
not been required directly or indirectly as an expression of implied condition in connection with obtaining
or carrying out this Contract to:
(a) Employ, retain or agree to employ or retain, any firm or person or
(b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation or
consideration of any kind except as here expressly stated (if any):
Department official further acknowledges this certificate is to be furnished to the Federal Highway
Administration, and is subject to applicable State and Federal laws, both criminal and civil.
STLAWS.DOC 12
ver.2-18-2003
Deschutes County/ODOT
Agreement No. 32387
Exhibit C
Federal Provisions
Oregon Department of Transportation
CERTIFICATION OF NONINVOLVEMENT IN ANY DEBARMENT AND SUSPENSION
Contractor certifies by signing this Contract that to the best of its knowledge and belief, it and its
principals:
Are not presently debarred, suspended,
proposed for debarment, declared
ineligible or voluntarily excluded from
covered transactions by any Federal
department or agency;
Have not within a three-year period
preceding this Contract been convicted of
or had a civil judgment rendered against
them for commission of fraud or a
criminal offense in connection with
obtaining, attempting to obtain or
performing a public (federal, state or
local) transaction or contract under a
public transaction; violation of federal or
state antitrust statutes or commission of
embezzlement, theft, forgery, bribery
falsification or destruction of records,
making false statements or receiving
stolen property;
3. Are not presently indicted for or otherwise
criminally or civilly charged by a
governmental entity (federal, state or
local) with commission of any of the
offenses enumerated in paragraph (1)(b)
of this certification; and
4. Have not within a three-year period
preceding this Contract had one or more
public transactions (federal, state or
local) terminated for cause or default.
Where the Contractor is unable to certify to any
of the statements in this certification, such
prospective participant shall submit a written
explanation to Department.
List exceptions. For each exception noted,
indicate to whom the exception applies, initiating
agency, and dates of action. If additional space
is required, attach another page with the
sTLAws.DOc 13
ver.2-18-2003
following heading: Certification Exceptions
continued, Contract Insert.
EXCEPTIONS:
Exceptions will not necessarily result in denial of
award, but will be considered in determining
Contractor responsibility. Providing false
information may result in criminal prosecution or
administrative sanctions.
The Contractor is advised that by signing this
Contract, the Contractor is deemed to have
signed this certification.
II. INSTRUCTIONS FOR CERTIFICATION
REGARDING DEBARMENT, SUSPENSION,
AND OTHER RESPONSIBILITY MATTERS—
PRIMARY COVERED TRANSACTIONS
1. By signing this Contract, the Contractor
is providing the certification set out
below.
2. The inability to provide the certification
required below will not necessarily result
in denial of participation in this covered
transaction. The Contractor shall
explain why he or she cannot provide
the certification set out below. This
explanation will be considered in
connection with the Department
determination to enter into this
transaction. Failure to furnish an
explanation shall disqualify such person
from participation in this transaction.
The certification in this clause is a
material representation of fact upon
which reliance was placed when the
Department determined to enter into this
transaction. If it is later determined that
the Contractor knowingly rendered an
erroneous certification, in addition to
other remedies available to the Federal
Government or the Department may
terminate this transaction for cause of
default.
4. The Contractor shall provide immediate
written notice to the Department if at any
time the Contractor learns that its
certification was erroneous when
submitted or has become erroneous by
reason of changed circumstances.
5. The terms "covered transaction",
"debarred", "suspended", "ineligible",
"lower tier covered transaction",
"participant", "person", "primary covered
transaction", "principal", and "voluntarily
excluded", as used in this clause, have
the meanings set out in the Definitions
and Coverage sections of the rules
implementing Executive Order 12549.
You may contact the Department's
Program Section (Tel. (503) 986-2710)
to which this proposal is being submitted
for assistance in obtaining a copy of
those regulations.
The Contractor agrees by entering into
this Contract that, should the proposed
covered transaction be entered into, it
shall not knowingly enter into any lower
tier covered transactions with a person
who is debarred, suspended, declared
ineligible or voluntarily excluded from
participation in this covered transaction,
unless authorized by the Department or
agency entering into this transaction.
The Contractor further agrees by
entering into this Contract that it will
include the Addendum to Form
FHWA-1273 titled, "Appendix
B --Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary
Exclusion --Lower Tier Covered
Transactions", provided by the
Department entering into this covered
transaction without modification, in all
lower tier covered transactions and in all
solicitations for lower tier covered
transactions.
8. A participant in a covered transaction
may rely upon a certification of a
prospective participant in a lower tier
covered transaction that it is not
debarred, suspended, ineligible or
STLAWS.DOC 14
ver.2-18-2003
voluntarily excluded from the covered
transaction, unless it knows that the
certification is erroneous. A participant
may decide the method and frequency
by which it determines the eligibility of
its principals. Each participant may, but
is not required to, check the
Nonprocurement List published by the
U. S. General Services Administration.
9. Nothing contained in the foregoing shall
be construed to require establishment of
a system of records to render in good
faith the certification required by this
clause. The knowledge and information
of a participant is not required to exceed
that which is normally possessed by a
prudent person in the ordinary course of
business dealings.
10. Except for transactions authorized under
paragraph 6 of these instructions, if a
participant in a covered transaction
knowingly enters into a lower tier
covered transaction with a person who
is suspended, debarred, ineligible or
voluntarily excluded from participation in
this transaction, in addition to other
remedies available to the Federal
Government or the Department, the
Department may terminate this
transaction for cause or default.
III. ADDENDUM TO FORM FHWA-1273,
REQUIRED CONTRACT PROVISIONS
This certification applies to subcontractors,
material suppliers, vendors, and other lower tier
participants.
Appendix B of 49 CFR Part 29 -
Appendix B --Certification Regarding
Debarment, Suspension, Ineligibility, and
Voluntary Exclusion --Lower Tier Covered
Transactions
Instructions for Certification
1. By signing and submitting this Contract,
the prospective lower tier participant is
providing the certification set out below.
The certification in this clause is a
material representation of fact upon
which reliance was placed when this
transaction was entered into. If it is later
determined that the prospective lower
tier participant knowingly rendered an
erroneous certification, in addition to
other remedies available to the Federal
Government, the department or agency
with which this transaction originated
may pursue available remedies,
including suspension and/or debarment.
The prospective lower tier participant
shall provide immediate written notice to
the person to which this Contract is
submitted if at any time the prospective
lower tier participant learns that its
certification was erroneous when
submitted or has become erroneous by
reason of changed circumstances.
4. The terms "covered transaction",
"debarred", "suspended", "ineligible",
"lower tier covered transaction",
"participant", "person", "primary covered
transaction", "principal', "proposal', and
"voluntarily excluded", as used in this
clause, have the meanings set out in the
Definitions and Coverage sections of
rules implementing Executive Order
12549. You may contact the person to
which this Contract is submitted for
assistance in obtaining a copy of those
regulations.
5. The prospective lower tier participant
agrees by submitting this Contract that,
should the proposed covered
transaction be entered into, it shall not
knowingly enter into any lower tier
covered transaction with a person who
is debarred, suspended, declared
ineligible or voluntarily excluded from
participation in this covered transaction,
unless authorized by the department or
agency with which this transaction
originated.
The prospective lower tier participant
further agrees by submitting this
Contract that it will include this clause
titled, "Certification Regarding
Debarment, Suspension, Ineligibility and
Voluntary Exclusion --Lower Tier
Covered Transaction", without
modification, in all lower tier covered
transactions and in all solicitations for
lower tier covered transactions.
STLAwS.DOC 15
ver.2-18-2003
A participant in a covered transaction
may rely upon a certification of a
prospective participant in a lower tier
covered transaction that it is not
debarred, suspended, ineligible or
voluntarily excluded from the covered
transaction, unless it knows that the
certification is erroneous. A participant
may decide the method and frequency
by which it determines the eligibility of
its principals. Each participant may, but
is not required to, check the
nonprocurement list.
Nothing contained in the foregoing shall
be construed to require establishment of
a system of records to render in good
faith the certification required by this
clause. The knowledge and information
of a participant is not required to exceed
that which is normally possessed by a
prudent person in the ordinary course of
business dealings.
9. Except for transactions authorized under
paragraph 5 of these instructions, if a
participant in a covered transaction
knowingly enters into a lower tier
covered transaction with a person who
is suspended, debarred, ineligible or
voluntarily excluded from participation
in this transaction, in addition to other
remedies available to the Federal
Government, the department or agency
with which this transaction originated
may pursue available remedies,
including suspension and/or debarment.
Certification Regarding Debarment,
Suspension, Ineligibility, and Voluntary
Exclusion --Lower Tier Covered
Transactions
The prospective lower tier participant
certifies, by entering into this
Contract, that neither it nor its
principals is presently debarred,
suspended, proposed for
debarment, declared ineligible or
voluntarily excluded from
participation in this transaction by
any Federal department or agency.
b. Where the prospective lower tier
participant is unable to certify to any
of the statements in this certification,
such prospective participant shall
submit a written explanation to
Department.
IV. EMPLOYMENT
Contractor warrants that he has not
employed or retained any company or
person, other than a bona fide employee
working solely for Contractor, to solicit
or secure this Contract and that he has
not paid or agreed to pay any company
or person, other than a bona fide
employee working solely for
Contractors, any fee, commission,
percentage, brokerage fee, gifts or any
other consideration contingent upon or
resulting from the award or making of
this Contract. For breach or violation of
this warranting, Department shall have
the right to annul this Contract without
liability or in its discretion to deduct from
the Contract price or consideration or
otherwise recover, the full amount of
such fee, commission, percentage,
brokerage fee, gift or contingent fee.
Contractor shall not engage, on a full or
part-time basis or other basis, during the
period of the Contract, any professional
or technical personnel who are or have
been at any time during the period of
this Contract, in the employ of
Department, except regularly retired
employees, without written consent of
the public employer of such person.
3. Contractor agrees to perform consulting
services with that standard of care, skill
and diligence normally provided by a
professional in the performance of such
consulting services on work similar to
that hereunder. Department shall be
entitled to rely on the accuracy,
competence, and completeness of
Contractor's services.
V. NONDISCRIMINATION
During the performance of this Contract,
Contractor, for himself, his assignees and
successors in interest, hereinafter referred
to as Contractor, agrees as follows:
1. Compliance with Regulations.
Contractor agrees to comply with Title
VI of the Civil Rights Act of 1964, and
Section 162(a) of the Federal -Aid
STLAWS.DOC 16
ver.2-18-2003
Highway Act of 1973 and the Civil
Rights Restoration Act of 1987.
Contractor shall comply with the
regulations of the Department of
Transportation relative to
nondiscrimination in Federally assisted
programs of the Department of
Transportation, Title 49, Code of
Federal Regulations, Part 21, as they
may be amended from time to time
(hereinafter referred to as the
Regulations), which are incorporated by
reference and made a part of this
Contract. Contractor, with regard to the
work performed after award and prior to
completion of the Contract work, shall
not discriminate on grounds of race,
creed, color, sex or national origin in the
selection and retention of
subcontractors, including procurement
of materials and leases of equipment.
Contractor shall not participate either
directly or indirectly in the discrimination
prohibited by Section 21.5 of the
Regulations, including employment
practices, when the Contract covers a
program set forth in Appendix B of the
Regulations.
Solicitation for Subcontractors, including
Procurement of Materials and
Equipment. In all solicitations, either by
competitive bidding or negotiations
made by Contractor for work to be
performed under a subcontract,
including procurement of materials
and equipment, each potential
subcontractor or supplier shall be
notified by Contractor of Contractor's
obligations under this Contract and
regulations relative to nondiscrimination
on the grounds of race, creed, color, sex
or national origin.
3. Nondiscrimination in Employment (Title
VII of the 1964 Civil Rights Act). During
the performance of this Contract,
Contractor agrees as follows:
Contractor will not discriminate
against any employee or applicant
for employment because of race,
creed, color, sex or national origin.
Contractor will take affirmative
action to ensure that applicants are
employed, and that employees are
treated during employment, without
regard to their race, creed, color,
sex or national origin. Such action
shall include, but not be limited to
the following: employment,
upgrading, demotion or transfer;
recruitment or recruitment
advertising; layoff or termination;
rates of pay or other forms of
compensation; and selection for
training, including apprenticeship.
Contractor agrees to post in
conspicuous places, available to
employees and applicants for
employment, notice setting forth the
provisions of this nondiscrimination
clause.
Contractor will, in all solicitations or
advertisements for employees
placed by or on behalf of
Contractor, state that all qualified
applicants will receive consideration
for employment without regard to
race, creed, color, sex or national
origin.
4. Information and Reports. Contractor will
provide all information and reports
required by the Regulations or orders
and instructions issued pursuant
thereto, and will permit access to his
books, records, accounts, other sources
of information, and his facilities as may
be determined by Department or FHWA
as appropriate, and shall set forth what
efforts he has made to obtain the
information.
Sanctions for Noncompliance. In the
event of Contractor's noncompliance
with the nondiscrimination provisions of
the Contract, Department shall impose
such agreement sanctions as it or the
FHWA may determine to be appropriate,
including, but not limited to:
Withholding of payments to
Contractor under the agreement until
Contractor complies; and/or
b. Cancellation, termination or
suspension of the agreement in
whole or in part.
6. Incorporation of Provisions. Contractor
will include the provisions of paragraphs
1 through 6 of this section in every
STLAWS.DOC 17
ver.2-18-2003
subcontract, including procurement of
materials and leases of equipment,
unless exempt from Regulations, orders
or instructions issued pursuant thereto.
Contractor shall take such action with
respect to any subcontractor or
procurement as Department or FHWA
may direct as a means of enforcing such
provisions, including sanctions for
noncompliance; provided, however, that
in the event Contractor becomes
involved in or is threatened with litigation
with a subcontractor or supplier as a
result of such direction, Department
may, at its option, enter into such
litigation to protect the interests of
Department, and, in addition, Contractor
may request Department to enter into
such litigation to protect the interests of
the State of Oregon.
VI. DISADVANTAGED BUSINESS
ENTERPRISE (DBE) POLICY
In accordance with Title 49, Code of
Federal Regulations, Part 26, Contractor
shall agree to abide by and take all
necessary and reasonable steps to comply
with the following statement:
DBE POLICY STATEMENT
DBE Policy. It is the policy of the United
States Department of Transportation
(USDOT) to practice nondiscrimination on
the basis of race, color, sex and/or national
origin in the award and administration of
USDOT assist contracts. Consequently,
the DBE requirements of 49 CFR 26 apply
to this Contract.
Required Statement For USDOT
Financial Assistance Agreement. If as a
condition of assistance the Agency has
submitted and the US Department of
Transportation has approved a
Disadvantaged Business Enterprise
Affirmative Action Program which the
Agency agrees to carry out, this affirmative
action program is incorporated into the
financial assistance agreement by
reference.
DBE Obligations. The Department and
its Contractor agree to ensure that
Disadvantaged Business Enterprises as
defined in 49 CFR 26 have the opportunity
to participate in the performance of
contracts and subcontracts financed in
whole or in part with Federal funds. In this
regard, Contractor shall take all necessary
and reasonable steps in accordance with
49 CFR 26 to ensure that Disadvantaged
Business Enterprises have the opportunity
to compete for and perform contracts.
Neither Department nor its contractors shall
discriminate on the basis of race, color,
national origin or sex in the award and
performance of federally -assisted
contracts. The Contractor shall carry out
applicable requirements of 49 CFR Part 26
in the award and administration of such
contracts. Failure by the Contractor to
carry out these requirements is a material
breach of this Contract, which may result in
the termination of this Contract or such
other remedy as Department deems
appropriate.
The DBE Policy Statement and Obligations
shall be included in all subcontracts
entered into under this Contract.
Records and Reports. Contractor shall
provide monthly documentation to
Department that it is subcontracting with or
purchasing materials from the DBEs
identified to meet Contract goals.
Contractor shall notify Department and
obtain its written approval before replacing
a DBE or making any change in the DBE
participation listed. If a DBE is unable to
fulfill the original obligation to the Contract,
Contractor must demonstrate to
Department the Affirmative Action steps
taken to replace the DBE with another
DBE. Failure to do so will result in
withholding payment on those items. The
monthly documentation will not be required
after the DBE goal commitment is
satisfactory to Department.
Any DBE participation attained after the
DBE goal has been satisfied should be
reported to the Departments.
DBE Definition. Only firms DBE
certified by the State of Oregon,
Department of Consumer & Business
Services, Office of Minority, Women &
Emerging Small Business, may be utilized
to satisfy this obligation.
CONTRACTOR'S DBE CONTRACT GOAL
STLAWS.DOC 18
ver.2-18-2003
DBE GOAL 0 %
By signing this Contract, Contractor
assures that good faith efforts have been
made to meet the goal for the DBE
participation specified in the Contract for
this project as required by ORS 200.045,
and 49 CFR 26.53 and 49 CFR, Part 26,
Appendix A.
VII. LOBBYING
The Contractor certifies, by signing this
agreement to the best of his or her
knowledge and belief, that:
No Federal appropriated funds have
been paid or will be paid, by or on behalf
of the undersigned, to any person for
influencing or attempting to influence an
officer or employee of any Federal
agency, a Member of Congress, an
officer or employee of Congress or an
employee of a Member of Congress in
connection with the awarding of any
Federal contract, the making of any
Federal grant, the making of any
Federal loan, the entering into of any
cooperative agreement, and the
extension, continuation, renewal,
amendment or modification of any
Federal contract, grant, loan or
cooperative agreement.
2. If any funds other than Federal
appropriated funds have been paid or
will be paid to any person for influencing
or attempting to influence an officer or
employee of any Federal agency, a
Member of Congress, an officer or
employee of Congress or an employee
of a Member of Congress in connection
with this agreement, the undersigned
shall complete and submit Standard
Form -LLL, "Disclosure Form to Report
Lobbying", in accordance with its
instructions.
This certification is a material
representation of fact upon which reliance
was placed when this transaction was
made or entered into. Submission of this
certification is a prerequisite for making or
entering into this transaction imposed by
Section 1352, Title 31, U. S. Code. Any
person who fails to file the required
certification shall be subject to a civil
penalty of not less than $10,000 and not
more than $100,000 for each such failure.
The Contractor also agrees by signing this
agreement that he or she shall require that
the language of this certification be included
in all lower tier subagreements, which
exceed $100,000 and that all such
subrecipients shall certify and disclose
accordingly.
FOR INQUIRY CONCERNING
DEPARTMENT'S DBE
PROGRAM REQUIREMENT
CONTACT OFFICE OF CIVIL
RIGHTS AT (503)986-4354.
STLAWS.DOC 19
ver.2-18-2003
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DESCHUTES COUNTY BOARD OF COMMISSIONERS
ODOT REGION 4 - WORK SESSION TOPICS
Monday, February 5th, 2018
1.
US97 @ Wickiup Jct — Next Steps and LaPine
Bob Townsend
Streetscape Project
2.
US97 S. Century Drive Four -lane project and
Della Mosier
Vandevert Rd. Intersection
3.
US97 Bend N. Corridor/Cooley Mid-term
Bob Bryant
4.
US20/Cooley and US20/Old Bend Redmond
Bob Townsend
5.
US20/Cook Ave (Tumalo)
Della Mosier
6.
US97 — Bend to Redmond
Bob Townsend
7.
US97 — Lower Bridge Way (Terrebonne)
Bob Townsend
8.
US20/Ward-Hamby Safety
Bob Bryant
9.
Other topics of interest, Action Items....
All
DESCHUTES COUNTY BOARD OF COMMISSIONERS
ODOT REGION 4 - WORK SESSION TOPICS
Monday, February 5th, 2018
Wickiup Junction Next Steps
® Bridge Removal - Construction funds for a Girder Removal project is planned to
be a new STIP Project that will be kicked off this month, with FHWA approval.
This project has an anticipated bid date of June 2018, with Girder Removal
occurring in September/October 2018.
Short Term Improvements (See Attached) - The Short Term Improvements
funding is planned (with FHWA approval) to be added to thecurrent US97:
Sunriver Interchange to OR31 Project (Key #18679) that bids on March 22, 2018.
The design work is currently being performed with the intent to add these short
term improvements to this project via an addendum. These short term
improvements contain the following elements and are planned to be constructed
by Winter 2018:
- Illumination @ Burgess & Rosland Rd.
- Speed Reduction Signing at Wickiup Junction
- Right Turn Lane Improvements @ Rosland Rd.
- Intersection Striping Improvements @ Burgess & Rosland Rd.
- Camera/RWIS @ Wickiup Junction
® Long Term Planning (See Attached) The Long Term Planning Project is
proposed to be a separate planning EA utilized for refinement planning (PL). We
are continuing to coordinate with FHWA on this proposal. A draft scope of work
for the refinement plan has been prepared for review by the City of LaPine.
ODOT Region 4
Last updated: December 2017
Project components
• Repave approximately 17 miles of US 97 from the Sunriver Interchange (MP 152.5) to OR 31 (MP 170).
• Construct sidewalks and streetscape elements on the west side of US 97 in La Pine between 3rd Street
and 6`" Street.
• Acquire and design Phase 1 of a region transit center located between US 97 and Huntington Road along
the north side of 4`" Street.
• Improve the safety of pedestrians crossing US 97 in La Pine by installing rapid rectangular flashing
beacons (RRFBs) and raised medians at 4`" Street and Morson/Finley Butte Avenue.
• Upgrade curb ramps to ADA standards on both sides of highway between 1st Street and 6th Street.
• Improve the intersections at US 97/Vandevert Road and at US 97/OR 31 through signing and other
minor safety improvements.
• Upgrade signs and guardrails, as necessary, and install rumble strips and durable striping.
Why the project is needed
US 97 is a critical part of the State's transportation system and is a major
north -south freight corridor that links California and Washington. This
section of highway is also an important commuter route between Bend,
Sunriver and La Pine. Keeping highways in good condition and providing
a safe, efficient transportation system that supports economic
opportunity is a critical aspect of the mission for the Oregon
Department of Transportation.
U5' 91 Pavement Conattlon
This section of US 97 is showing signs of extensive cracking and rutting. This section of highway was last paved in
2004 and additional patching and pothole repairs completed in 2015 to extend the life of the road.
La Pine Downtown Corridor
The 2011 US 97/La Pine Corridor Plan, later incorporated into the 2013 La Pine Transportation System Plan,
identified concerns in the 15t Street to 6`" Street corridor. While some of those concerns have been addressed,
the plan identified the lack of continuous sidewalks on the westside of US 97 and the need to improve
pedestrian crossings. The many driveways in the corridor also present conflicts between pedestrians and
motorists turning into driveways or backing up over existing sidewalks.
Transit, Connectivity
The growth of the city of La Pine and south Deschutes County has created the need for more transit alternatives.
Under the city's leadership, the proposed transit center would serve to better connect La Pine to other cities in
Deschutes County, serving commuters, visitors and local residents alike with a designated transit facility.
orn�
Otrpnr3mont
of Troncpnrtattnn
ODOT Region 4
What is planned
Pavement Preservation - ODOT plans to grind out the top portion of the pavement and replace it with new
asphalt concrete over the full width of the roadway. Safety improvements such as centerline rumble strips,
shoulder rumble strips and durable striping will also be installed.
Sidewalk/streetscape - The city of La Pine adopted a sidewalk and streetscape design that is implemented in
front of city hall and with the US 97 @ 15T Street Signal Project. This project will create continuous and safer
sidewalk access on the west side of US 97 through La Pine and enhance crossings that connect the schools with
residences east of US 97 by installing raised medians and RRFBs.
8' 6' 3'I. 11' 1 16' 11' 3'! 6'
Side Swale Bike i Travel Center Turn Travel Bike'
Walk up to 18' Lane t',. Lane Lane Lane I Lane':
Buffer Buffer
ODOT and the city of La Pine continue to work with property owners and businesses to address access concerns
related to the construction of new sidewalks and streetscape elements.
Transit Center—This project will construct Phase 1 of transit center located between US 97 and Huntington
Road along the north side of 4th Street. Phase 1 will include acquisition of the property and on-site design
features that will prepare it for future service by Cascade East Transit with bus service to and from Bend. The
city will work with regional partners following Phase 1 to construct the transit facility also including a park and
ride, business parking, and bicycle and pedestrian facilities.
Traffic control during construction
Paving is anticipated to occur at night to lessen the impacts on traffic. Lane closures, travel lane shifts and
delays up to 20 minutes can be expected. The sidewalk and streetscape work will most occur during the day and
should have little impact on traffic. Business access will be maintained during construction.
Timeline & Estimated Cost
Project Development 2015-2017
Bid Opening March 2018
Construction 2018
Total Estimated Costs Approximately $9.8 M
1f;. l„l )f!;r0► 71
Name
Title
Phone number
Email address
Mike Darling
Project Leader
541-388-6329
Charles.M.Darling@odot.state.or.us
Gary Farnsworth
Area Manager
541-388-6071
Gary.C.Farnsworth@odot.state.or.us
Abbey Driscoll
Community Liaison
541-388-6064
Abbey. Driscoll@odot.state.or.us
Cory Misley
I City Manager
541-536-1432
CMisleV@ci.la-pine.or.us
O¢parim¢nt
7rnnsporfntl¢n
ODOT Region 4
Project Information
DISCLAIMER:
This product was created by
COOT for general informational
purposes only.
j/ OraUun
DOAar2mant
/ 7ransPorfa2/un
LA PINES'
MP 170
For more information on this and other highway projects visit:
www.oregon.gov/ODOIZProiects/`Pages/`default.aspx
Copyrighti0.2014 Esri
U.S. 97: Sunriver Interchange - OR 31 Paving Project
and La Pine Sidewalk Project
N
SUNRIVER
97
•MP 154,
LEGEND
Paving Limits
Intersection Safety
Improvements
'usw s� n i termin�o oae2 � z
Streetscape ProjectLJ
3
Sdowalk Construction
--
7 g
V
P
97 baapt
}�
n
li
a 1w
DISCLAIMER:
This product was created by
COOT for general informational
purposes only.
j/ OraUun
DOAar2mant
/ 7ransPorfa2/un
LA PINES'
MP 170
For more information on this and other highway projects visit:
www.oregon.gov/ODOIZProiects/`Pages/`default.aspx
Copyrighti0.2014 Esri
US97: S. CENTURY DRIVE TO USFS COUNDARY - PHASE 1
SUNRIVER INTERCHANGE TO SOUTH OF VANDVERT ROAD
STA. 705+00 TO 860+00
0
Phase 1 Design Characteristics Summary:
- Cost = $7MM
- Benefit/Cost Ratio = 1.4 ($7MM in project costs results in $9.8MM in safety benefit over the design life).
- Provides additional 2.5 miles of divided highway.
(D- Left -out at Vandevert for Northbound traffic.
- Median U-turn for Northbound access to Vandevert
- Ties into existing divided highway at S. Century Drive Interchange.
®- Forward compatibility with 6 -mile Project, with minimal throw -away costs (13%).
Wildlive Undercrossings at STA 771+00 can be incorporated for an additional $1.5MM.
LEGEND
,! PROPOSED INTERMEDIATE IMPROVEMENTS
FUTURE CORRIDOR FULL BUILD-0UT
EXISTING TOPOGRAPHY
APPROX. FLAP CIP LIMITS
j I FNA
I % OREGON DEPARTMENT OF TRANSPORTATION
US97: S. CENTURY DR. TO USFS BOUNDARY - PHASE I
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ODOT Region 4
Project Information
Last Updated: October LU1 i
Project Overview
• Dual -lane roundabout at the intersection of US 20 and Cooley Road
• Repaving of US 20 between Tumalo and Robal Road
• Other safety improvements including median, sidewalks and intersection improvements at US
20/Old Bend Redmond Highway
About the Project
As part of a public/private partnership, the Oregon Department of Transportation, city of Bend,
and private developer are working together to design and construct a roundabout at the
intersection of US 20 and Cooley Rd. The roundabout will be constructed to manage increased
traffic due to the planned construction of the Fred Meyer development located adjacent to US
20 between Robal Rd. and Cooley Rd.
The roundabout will be the largest roundabout design in Central Oregon and will improve local
connectivity to jobs, schools, services, transit, residential areas, retail and recreational areas in
Bend. The roundabout will facilitate the safe and smooth flow of traffic through this
intersection for all modes (vehicle, freight, pedestrian and bicyclists). The roundabout will be
dual lane, providing two lanes in each direction on US 20, and will be designed to allow
standard trucks to proceed through the roundabout simultaneously in each direction. The
roundabout will also provide a gateway feature into the city of Bend.
Need for the Project
There are currently no traffic control devices at the intersection of US 20 and Cooley Road. High
traffic volumes make turning movements to and from the highway hazardous for motorists.
These issues are compounded particularly during peak travel time periods causing further
safety problem for all users. This project will reduce the number and severity of crashes at this
intersection making this an important priority for the region.
The roundabout will allow motorists to travel smoothly and efficiently through the US 20 and
Cooley Road intersection to access new development in the area.
Funding
Estimated cost - $8.5 million. Construction of the roundabout is funded by private developer system
fees. Repaving and other intersection improvements are funded by ODOT.
31 Oregon
Department
of Transportation
Misc. Contracts and Agreements
No. 32387
COOPERATIVE IMPROVEMENT AGREEMENT
US20 @ Tumalo Environmental Assessment
Deschutes County
THIS AGREEMENT is made and entered into by and between the STATE OF
OREGON, acting by and through its Department of Transportation, hereinafter referred
to as "State;" and DESCHUTES COUNTY, acting by and through its elected officials,
hereinafter referred to as "County," both herein referred to individually or collectively as
"Party" or "Parties."
RECITALS
1. The McKenzie -Bend Highway, US Route 20, State Highway No. 17, is a part of
the state highway system under the jurisdiction and control of the Oregon
Transportation Commission (OTC). OB Riley Road and `Cook Avenue are a
part of the county road system under the jurisdiction and control of the County.
2. By the authority granted in Oregon Revised Statutes (ORS) 190.110, 366_572
and 366.576, State may enter into cooperative agreements with counties, cities
and units of local governments for the performance of work on certain types of
improvement projects with the allocation of costs on terms and conditions
mutually agreeable to the contracting parties.
3. State, by ORS 366.220, is vested with complete jurisdiction and control over
the roadways of other jurisdictions taken for state highway purposes. By the
authority granted by ORS 373.020, the jurisdiction extends from curb to curb,
or, if there is no regular established curb, then control extends over such
portion of the right of way as may be utilized by State for highway purposes.
Responsibility for and 'jurisdiction over all other portions of a county roadway
remains with the County.
4. By the authority granted in ORS 366.425, State may accept deposits of money
or an irrevocable letter of credit from any county, city, road district, person,
firm, or corporation for the performance of work on any public highway within
the State. When said money or a letter of credit is deposited, State shall
proceed with the Project. Money so deposited shall be disbursed for the
purpose for which it was deposited.
5. The population growth in Tumalo and the surrounding area and the increase of
traffic on US 20 are increasing congestion and backups on side streets and
making it difficult for drivers to turn onto the highway from County streets. There
have been a total of 21 crashes on US 20 between the intersections of 5th
Street and Cook Avenue/OB Riley Road over a six year period from January 1,
2009 to December 31, 2014. Of these crashes, 14 were intersection related. In
2014, the Average Daily Traffic for US20 in Tumalo was 14,700 vehicles per
day. This is estimated to increase to over 23,700 vehicles per day by 2035.
Key No. 14892
Deschutes County/ODOT
Agreement No. 32387
NOW THEREFORE, the premises being in general as stated in the foregoing
Recitals, it is agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. Under such authority, State and County agree to State or State's consultant
performing preliminary engineering to include work to develop preferred
alternatives between mile point 14.10 and mile point 15.11 on US20 for review
under a oublic orocess, hereinafter referred to as "Project". the Prof, includes
phase (DAP), The location of the Project is approximately as shown on the sketch
map attached hereto, marked Exhibit A, and by this reference made a part hereof.
Exhibits 1-3 and C-4 are included as a part of Exhibit A.
2. The Project will be financed at an estimated cost of $1,100,000 in Federal, State
and County funds and shall be funded as follows:
The funds shall be allocated as follows:
PHASE AMOUNT
Scoping and Environmental Assessment $400,000
(Completed)
Intersection Traffic Analysis $100,000
TOTAL
$600,000:
$1,100,000
Deschutes County/ODOT
Agreement No. 32387
The estimate for the total Project cost is subject to change. State shall be
responsible for any nonparticipating costs, and Project costs beyond the estimate.
3. Parties agree to work collaboratively and in good faith to execute any additional
amendment(s) to this agreement, that may be necessary as the Project develops,
including but not limited to:
a. Changes to the Project description, deliverables and obligations.
b. Changes to the Project budget or scope.
4. The term of this Agreement shall begin on the date all required signatures are
obtained and shall terminate upon completion of the Project and final payment or
ten (10) calendar years following the date all required signatures are obtained,
whichever is sooner.
5. Parties agree that this Agreement may be amended to include additional funds for
the final design and construction of the preferred alternative selected by the
Parties under TERMS OF AGREEMENT, Paragraph 1.
COUNTY OBLIGATIONS
1. County shall upon receipt of a fully executed copy of this Agreement and upon a
subsequent letter of request from State, forward to State an advance deposit or
irrevocable letter of credit in the amount of $300,000 for the Project, said amount
being County's contribution for work performed by State at County's request
under State Obligations 'paragraph 1. County's contribution shall not exceed,
$300,000subject to TERMS OF AGREEMENT, Paragraphs 2 and 3 above.
2. All employers, including County, that employ subject workers who work under
this Agreement in the State' of Oregon shall comply with ORS 656017 and
provide the required Workers' Compensation coverage unless such employers
are exempt under ORS 656.126. Employers Liability insurance with coverage
limits of not less than $500,000 must be included. County shall ensure that each
of its contractors complies with these requirements.
3. County shall perform the service under this Agreement as an independent
contractor and shall be exclusively responsible for all costs and expenses related
to its employment of individuals to perform the work under this Agreement
including, but not limited to, retirement contributions, workers' compensation,
unemployment taxes, and state and federal income tax withholdings.
4. County acknowledges and agrees that State, the Oregon Secretary of State's
Office, the federal government, and their duly authorized representatives shall
have access to the books, documents, papers, and records of County which are
directly pertinent to the specific Agreement for the purpose of making audit,
examination, excerpts, and transcripts for a period of six (6) years after final
3
Deschutes County/ODOT
Agreement No. 32387
payment (or completion of Project -- if applicable.) Copies of applicable records
shall be made available upon request. Payment for costs of copies is
reimbursable by State.
5. County shall comply with all federal, state, and local laws, regulations, executive
orders and ordinances applicable to the work under this Agreement, including,
without limitation, the provisions of ORS 279B.220, 279B.225, 279B.230,
279B.235 and 279B.270 incorporated herein by reference and made a part
hereof. Without limiting the generality of the foregoing, County expressly agrees
to comply with (i) Title VI of Civil Rights Act of 1964; (ii) Title V and Section 504
of the Rehabilitation Act of 1973, (iii) the Americans with Disabilities Act of 1990
and ORS 659A.142; (iv) all regulations and administrative rules established
pursuant to the foregoing laws; and (v) all other applicable requirements of
federal and state civil rights and rehabilitation statutes, rules and regulations.
6. County acknowledges the effect and scope of ORS 105.755 and agrees that all
acts necessary to complete construction of the Project which may alter or change
the grade of existing county roads are being accomplished at the direct request
of County.
7. County grants State the right to enter onto County right of way for the
performance of duties as set forth in this Agreement.
8. County certifies and represents that the individual(s) signing this Agreement has
been authorized to enter intoand execute this Agreement on behalf of County,
under the direction or approval of its governing body, commission, board,
officers, members or representatives, and to legally bind County.
9. County's Project Manager for this Project is Cody Smith — County Engineer,
61150 SE 27th Street, Bend, OR 97702, (541) 322-7113,
Cody. smith@deschutes.org, or assigned designee upon individual's absence.
County shall notify the other Party in writing of any contact information changes
during the term of this Agreement.
STATE OBLIGATIONS
1. State or State's Consultant shall perform the work described in TERMS OF
AGREEMENT, Paragraph 1.
2. State certifies, at the time this Agreement is executed, that sufficient funds are
available and authorized for expenditure to finance costs of this Agreement within
State's current appropriation or limitation of the current biennial budget.
3. State shall, upon execution of the agreement, forward to County a letter of request
for an advance deposit or irrevocable letter of credit in the amount of $300,000 for
payment of work performed by State at County's request.
rd
Deschutes County/ODOT
Agreement No. 32387
4. State, or its consultant, shall conduct the necessary field surveys, environmental
studies, traffic investigations, preliminary engineering and design work required to
produce and provide Design Acceptance plans, specifications and cost estimates
for the highway Project.
5. State's Project Manager for this Project is Bob Townsend — Region 4 Construction
Manager, 63055 N. Highway 97, Bldg M, Bend, OR 97703, (541) 388-6252,
Robert. L.TOWNSEND@odot.state. or. us, or assigned designee upon individual's
absence. State shall notify the other Party in writing of any contact information
changes during the term of this Agreement.
GENERAL PROVISIONS
1. This Agreement may be terminated by mutual written consent of both Parties.
2. State may terminate this Agreement effective upon delivery of written notice to
County, or at such later date as may be established by State, under any of the
following conditions:
a. If County fails to provide services called for by this Agreement within
the time specified herein or any extension thereof.
b. If County fails to perform any of the other provisions of this
Agreement, or so fails to pursue the work as to endanger
performance of this Agreement in accordance with its terms, and after
receipt of written notice from State fails to correct such failures within
ten (10) days or such longer period as State may authorize.
c. If County fails to provide payment of its share of the cost of the
Project.
d. If State fails to receive funding, appropriations, limitations or other
expenditure authority sufficient to allow State, in the exercise of its
reasonable administrative discretion, to continue to make payments
for performance of this Agreement.
e. If 'federal or state laws, regulations or guidelines are modified or
interpreted in such a way that either the work under this Agreement is
prohibited or State is prohibited from paying for such work from the
planned funding source.
3. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
9
Deschutes County/ODOT
Agreement No. 32387
4. If any third party makes any claim or brings any action, suit or proceeding alleging
a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against
State or County with respect to which the other Party may have liability, the
notified Party must promptly notify the other Party in writing of the Third Party
Claim and deliver to the other Party a copy of the claim, process, and all legal
pleadings with respect to the Third Party Claim. Each Party is entitled to
participate in the defense of a Third Party Claim, and to defend a Third Party
Claim with counsel of its own choosing. Receipt by a Party of the notice and
copies required in this paragraph and meaningful opportunity for the Party to
participate in the investigation, defense and settlement of the Third Party Claim
with counsel of its own choosing are conditions precedent to that Party's liability
with respect to the Third Party Claim.
5. With respect to a Third Party Claim for which State is jointly liable with County (or
would be if joined in the Third Party Claim), State shall contribute to the amount of
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by County in
such proportion as is appropriate to reflect the relative fault of State on the one
hand and of County on the other hand in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of State on the one
hand and of County on the other hand shall be determined by reference to,
among other things, the Parties' relative intent, knowledge, access to information
and opportunity to correct or prevent the circumstances resulting in such
expenses, judgments, finesor settlement amounts. State's contribution amount in
any instance is capped to the same extent it would have been capped under
Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if State
had sole liability in the proceeding.
6. With respect to a Third Party Claim for which County is jointly liable with State (or
would be if joined in the Third Party Claim), County shall contribute to the amount
of expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by State in such
proportion as is appropriate to reflect the relative fault of County on the one hand
and of State on the other hand in connection with the events which resulted in
such expenses, judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of County on the one hand
and of State on the other hand shall be determined by reference to, among other
things, the Parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such expenses,
judgments, fines or settlement amounts. County's contribution amount in any
instance is capped to the same extent it would have been capped under Oregon
law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole
liability in the proceeding.
10
Deschutes County/ODOT
Agreement No. 32387
7. As federal funds are involved in this Agreement, Exhibits B and C are attached
hereto and by this reference made a part of this Agreement, and are hereby
certified to by Agency representative.
8. Agency, as a recipient of federal funds, pursuant to this Agreement with the State,
shall assume sole liability for Agency's breach of any federal statutes, rules,
program requirements and grant provisions applicable to the federal funds, and
shall, upon Agency's breach of any such conditions that requires the State to
return funds to the Federal Highway Administration, hold harmless and indemnify
the State for an amount equal to the funds received under this Agreement; or if
legal limitations apply to the indemnification ability of Agency, the indemnification
amount shall be the maximum amount of funds available for expenditure,
including any available contingency funds or other available non -appropriated
funds, up to the amount received under this Agreement.
9. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. In addition, the Parties may agree to utilize a jointly selected mediator
or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.
10. This Agreement may be executed in several counterparts (facsimile or otherwise)
all of which when taken together shall constitute one agreement binding on all
Parties, notwithstanding that all Parties_ are not signatories to the same
counterpart. Each copy of this Agreement so executed shall constitute an original.
11. This Agreement and attached exhibits constitute the entire agreement between
the Parties on the subject matter hereof. There are no understandings,
agreements, or representations, oral or written, not specified herein regarding this
Agreement. No waiver, consent,; modification or change of terms of this
Agreement shall bind either Party unless in writing and signed by both Parties and
all necessary approvals have been obtained. Such waiver, consent, modification
or change, if made shall be effective only in the specific instance and for the
specific purpose given. The failure of State to enforce any provision of this
Agreement shall not constitute a waiver by State of that or any other provision.
THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and conditions.
This Project is in the 2008-2011 Statewide Transportation Improvement Program,
(Key #14892) that was adopted by the Oregon Transportation Commission (or
subsequently approved by amendment to the STIP).
7
Deschutes County/ODOT
Agreement No. 32387
DESCHUTES COUNTY, by and through its
elected officials
By
Chair
Date
Commissioner
By
Commissioner
Date
STATE OF OREGON, by and through
its Department of Transportation
By
Highway Division Administrator
Date -
APPROVAL RECOMMENDED
By
Region 4 Manager
Date
APPROVED AS TO LEGAL SUFFICIENCY
By
Region 4 Traffic Manager
_Date
By
Date
County Contact:
Cody Smith — County Engineer
61150 SE 27th Street
Bend, OR 27702
(541) 322-7113
Codv.smitha-deschutes.orq
By
Counsel
Date
State Contact: =
Bob Townsend — Region 4 Construction
Manager
63055 N. Highway 97, Bldg M
Bend, OR 97703
(541) 388-6252
Robert. L.TOWNSEND(C17,odot.state. or. us
W
APPROVED AS TO LEGAL
SUFFICIENCY
By: Herbert Lovejoy AAG by email
Assistant Attorney General
Date: 1/18/18
DESCHUTES COUNTY BOARD OF COMMISSIONERS
ODOT REGION 4 - WORK SESSION TOPICS
Project Name: US97: Redmond - Bend Safety Project
Area Manager: Gary Farnsworth
Project Leader: Wade Luckman
Current Proposed Scope:
Mid-term - segment lighting, clear zone improvements, acceleration lanes and deceleration lanes,
inlaid raised pavement markers, and a median on the 61st Street road approach are proposed as
potential medium-term projects in the US97 Safety Assessment throughout the highway corridor.
Long-term - Additional refinement and development to address the most serious crashes with
longer-term improvements (e.g., median barrier to separate the northbound and southbound
motorists and prevent head-on high speed collisions).
Current Proposed Schedule: PE Underway 2017, RW 2019, CN 2020 (may be able to advance Mid-
term elements within RW by 2019)
Current Proposed Budget:
PH
COST
PE
$813,000
R/W
$100,000
CN
$4,115,000
SUM 1
$5,028,000
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Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of February 5, 2018
DATE: January 18, 2018
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Planning Commission Recommendation to Board to Not Initiate a Text Amendment on Code
Enforcement & Land Use
RECOMMENDATION & ACTION REQUESTED:
Board to discuss the Planning Commission's recommendation to not amend Deschutes County
Code (DCC) 1.16, 1.17, and 22.20 and direct staff to initiate or not initiate a text amendment.
ATTENDANCE: Peter Russell, Senior Transportation Planner
SUMMARY: The Board requested the Planning Commission (PC) hold a public hearing on
whether to initiate a text amendment to DCC 1. 16.010 (Violations), 1. 17.010 (Applicability),
and 22.20.015 (Code Enforcement and Land Use). The PC at its Jan. 11, 2018, hearing
received oral and written testimony, which was unanimous against initiating a text amendment.
The PC then deliberated and voted 5-1 to recommend the Board not initiate a text amendment
to DCC 1. 16, 1.17, and 22.20. There was one abstention. Staff has attached copies of the
testimony submitted to the PC for the Board's reference as well as the staff memo and Power
Point presented to the PC. Staff awaits direction from the Board on next steps, if any.
Y
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
i
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
DATE: December 29, 2017
MEETING: January 11, 2018
TO: Planning Commissioners
FROM: Peter Russell, Senior Transportation Planner
RE: Public hearing on recommendation to Board on whether to initiate amendments
to Deschutes County Code, 1.16.010, Violations; 1.17.010, Applicability; and
22.20.015, Code Enforcement and Land Use
I. BACKGROUND
Last year, the Board of County Commissioners (Board) directed the Community Development
Department (CDD) to reconvene a stakeholders group that helped staff formulate code
enforcement amendments adopted by the Board in 2015. Those amendments applied to
Deschutes County Code (DCC) 1.16.010 and 22.20.015. Based on a recent land use
application, the Board wanted to ascertain if the amended code was working as the group
intended. Staff reconvened the stakeholders committee which met face to face two times,'
discussing the relevant land use application and whether DCC 22.20.015 contains sufficient
language for when the public alleges a code violation during a land use process.
The Board is now weighing whether to amend DCC to balance the process requirements of
DCC 1.17 to determine if a code violation exists with the review process of a land use
application. DCC 22.20.015 provides guidance for land use review of properties with pre-
existing code violations.
The Board on November 27, 2017, directed staff to bring the topic before the Planning
Commission (PC) via a work session and a public hearing to discern the PC's preference for
amending these applicable sections of DCC. Staff held a work session on December 14, 2017,
to provide background and discussion. The goal of the public hearing is for the PC to receive
testimony and then make a formal recommendation to the Board on whether the County should
initiate a text amendment to DCC 1.16.010, 1.17.010, and 22.20.015.
' Oct. 3 and Nov. 15, 2017, after e-mail discussions in September.
Quality Services Perf'arined 7vith Pride
II. WORK SESSION RECAP
During the PC work session, staff recapped its December 6, 2017, memo about the 2015
amendments to DCC 1.16.010 and the creation of 22.20.015. Staff discussed the reasons for
the amendments, the stakeholder committee process, and the application of the new code to a
proposed marijuana retail dispensary on the northwest corner of Deschutes Junction. Staff also
discussed how the latter led the Board to reconvene the 2015 stakeholders group to mull if DCC
22.20.015 needed amending. The reconvened stakeholders committee was adamantly
opposed to revising DCC 22.20.015.2 At the work session, the PC requested additional
information regarding the:
• Current code enforcement process;
• Reasons for the potential revisions; and,
• Differences between how code enforcement and land use applications interact under the
current code and how that could change under the draft 2017 concepts .3
CURRENT CODE ENFORCEMENT PROCESS VS. LAND USE PROCESS
There are general similarities between the code enforcement process and procedures and
those for review of land use applications. DCC 1.17 (Code Enforcement Hearings and
Procedures) sets the process for violations while land use applications fall under DCC 22.20
(Deschutes County Development Procedures Ordinance). Both DCC 1.17 and 22.20 have a
defined process regarding timelines, notifications, and hearings officer procedures.
Yet, there are also critical differences. Quasi-judicial land use applications, which are property
specific, have a 150 -day clock for a final decision at the local level; code enforcement cases are
timeless. While the 150 -day clock can be tolled, it cannot be tolled indefinitely. The timeline for
a local land use decision cannot exceed 365 days .4 Not all applications require mailed notice to
adjoining property owners prior to a land use decision.5 The majority of land use decisions in
Deschutes County are administrative determinations (ADs), meaning there is no public hearing
prior to staff making the decision.
By contrast, all code enforcement cases appear before a hearings officer whereas few land use
applications do. In code enforcement, a hearings officer may require sworn testimony. In a
code enforcement hearing the public may attend, but not testify. The testimony and submittal
materials are limited to the complaining party and its legal counsel, alleged violator, and
violator's legal counsel. The pre -hearing process of discovery is required, which is where each
party must disclose all of its relevant information with the other within the bounds of attorney-
client privilege. If the hearings officer determines there is a code violation, civil penalties can be
set including monetary fines, which if not paid can potentially result in forfeiture of the property.
In land use, the most severe conclusion to an application is a denial and the applicant can
reapply, except for a few instances.
Z Refer to the December 6, 2017, PC memo for further background.
htt deschutescountyor l_ rgn2.com Citizens Filet? en.as x?T e=1&ID-1754 inline=True
3 The substantive changes would be to DCC 22.20.015. Any changes to DCC 1.16.010 or 1.17.010 would be citations to DCC
22.20.
4 The timeline is as follows: 30 days to deem an application complete, 150 days to issue a local decision, and a maximum tolling
of 215 days.
5 In these instances, notice of the land use decision is mailed to neighboring property owners and those who submitted
comments by tracking the application on-line.
Finally, DCC 20.20.015(C) defines a code violation as follows:
(C) A violation means the property has been determined to not be in
compliance either through a prior decision by the County or other tribunal,
or through the review process of the current application, or through an
acknowledgement by the alleged violator in a signed voluntary
compliance agreement ("VCA').
LAND USE AFTER ADOPTION OF DCC 22.20.015
Either County staff or the public can originate code enforcement complaints. In the past, these
complaints originated outside of the land use process. With the adoption of DCC 22.20.015 in
2015, the public has alleged code violations during the public hearing process of a land use
application.
In the Deschutes Junction example the hearings officer reviewed the materials submitted during
the public hearing, citing the clause in DCC 22.20.015(C) of "...or through the review of the
current application," and determined there was a code violation.6 As the land use application
before the hearings officer did not cure either previously adjudicated code violations nor the
newly determined code violations, the land use application was denied under DCC
22.20.015(A)(1) and/or (2). The language of DCC 22.20.015 gave the hearings officer no
discretion; it was not possible to set conditions of approval to cure the old and new violations.
Another example pertains to Tumalo Irrigation District (TID), which recently applied for a zone
change/plan amendment along Bill Martin Road, a local access road.' Central Oregon
LandWatch (COLW) in the December 12, 2017, public hearing alleged a code violation existed.
COLW cited a pending lawsuit regarding the maintenance responsibilities of Bill Martin Road.
Earlier partitions of TID and Deschutes County land to the north of the subject property created
the public right of way for Bill Martin Road, which runs to and through the subject property.
County legal counsel rejected COLW's argument, as quoted in a December 22, 2017, memo
sent to the hearings officer, as there has been no determination the County violated any land
use regulations or that a code violation occurred. DCC 22.20.015(C) does not define a pending
lawsuit as a violation.
Staff and the stakeholders agree the current DCC 22.20.015 provides adequate safeguards in
the land use process when an already adjudicated code violation exists on the subject
property.s The challenge is twofold for code violations alleged during a land use application.
First, in cases where the land use application goes before a hearings officer, is it
possible for a hearings officer to review the submitted materials and make a
determination if there is a code violation within the time mandated for a final land use
decision? Not all alleged code violations are clear-cut and DCC 1.17.050 sets out
requirements for notice, service, discovery process, etc., all of which take time.
Additionally, both the County and the violator can request a continuance.
6 File 247-17-000751-SP/752-CU
7 File 247-17-000775-ZC/776-PA
8 DCC 22.20.015(A)(1) states the County cannot approve the proposed development. The County can only approve if the
submitted land use application cures the adjudicated violation, as allowed under DCC 22.20.015(D).
Second, the County processes many land use applications that do not have prior notice,
let alone a public hearing. For those ADs without prior notice under DCC 22.20.030, staff
sends notice of the decision to property owners within a prescribed distance. There are
also ADs that do have prior notice and staff sends notice to comply with DCC 22.20.040.
If the public then submits an allegation of a code violation, under both DCC 1. 17.090 and
22.20.015(D), only a hearings officer can determine if there is a violation, staff cannot.
Either type of AD can be appealed to a hearings officer. Typically, the Planning Division does
not require a $5,000 hearing officer's deposit for an AD as the application fees for an AD range
from $512 to $1,537. The fee to appeal an AD, prescribed in State law is $250, meaning the
Planning Division must absorb the remaining costs of the hearings officer. It is doubtful the
Planning Division will begin to require a $5,000 hearings officer deposit on all AD applications.
IV. 2017 CONCEPTS TO AMEND DCC 22.20.015(D)
The stakeholders group agreed the 2015 language ensured adjudicated code violations would
be cured. An applicant under DCC 22.20.015(B)(1) has to certify the property is in compliance
with prior land use approvals or the intent of the application is to bring the property into
compliance as required by DCC 22.20.015(B)(2). If the land use reviewer agrees the
application cures the adjudicated violation, DCC 22.20.015(D) makes the application
approvable. Staff agreed with the stakeholders group overall, but did have reservations about
consistency with DCC 1.17. The Board also acknowledged the current language made no
distinction about the severity of the violation.
To address these issues, staff developed conceptual code language that covered the gamut of
all possible outcomes of a land use application for a property with code violations, either
previously adjudicated or newly determined. These concepts are:
• Approve the land use application regardless of the code violations;
• Approve the land use application if the permit cures the violations;
• Deny the land use application due to prior adjudicated violations that remain unresolved;
• Deny the land use application based on new findings that violations exist on the
property;
• Continue the land use hearing to allow a code enforcement hearing to occur;
• Conditionally approve the land use application as long as violations, pre-existing or
newly adjudicated, are resolved within a specified timeframe.
With two exceptions, the concepts are consistent with the current wording of DCC 22.20.015(D).
The first exception is the first bullet, which allows the land use to be approved without
addressing the code violation. The rationale is that code violations can range from the minor
(improper color of house in the Landscape Management Combining Zone for example) to the
major (illegal second dwelling or discharge of sewage onto bare ground). A land use application
should be denied if the code violation endangers the public's health, safety, or welfare or there
is an illegal use of the property. For a property with an inconsequential violation, perhaps the
County should have discretion to approve the land use. This first bullet provides the review
body with the ability to use discretion in reviewing a land use.
The fifth bullet provides the second exception, tolling the land use process to allow a code
enforcement officer to hear the case and determine if there is a code violation. The reasoning
4
for this approach is it fully complies with the process requirements of DCC 1.17. The downsides
are two. The first is whether there is sufficient time on the 150 -day clock to accommodate a
code enforcement hearing. The second is cost. Planning fees collected at time of application
are insufficient to cover a code enforcement hearing.
V. NEXT STEPS
Staff will discuss this memo with the PC at the January 11, 2018 public hearing, and then the
PC will accept public testimony. At the end of the public testimony, the PC can deliberate and
make a recommendation to the Board on whether the County should initiate a text amendment
to DCC 1.16.010, DCC 1.17.010, and 22.20.015.
If the Board ultimately decides to initiate a text amendment, staff will schedule another public
hearing before the PC in late winter or early spring. The PC hearing must comply with the 35 -
day prior notice for text amendments set by the Department of Land Conservation and
Development. The PC will make a recommendation to the Board, which will then hold a
subsequent public hearing on the text amendment.
Enclosures: Current code for DCC 1. 16,010
Current code for DCC 1. 17.010
Current code for DCC 22.20.015
Nov. 16h, 2017, version of proposed changes to DCC 1.16.030, 1.17.030, and
22.20.015
Jennifer M. Bragar
Attorney
Admitted in Oregon, Washington,
and California
jbragar@tomesilegal.com
January 11, 2018
HAND DELIVERED
Deschutes County Planning Commission
c/o Peter Russell
RO, Box 6005
117 NW Lafayette Avenue
Bend, OR 97708-6005
121 SW Morrison St, Sulte 1850
Portland, Oregon 97204
Tel 503-894-9900
Fax 971-544-7236
wwwtomasllegal,com
Re: Bishop Comments on Proposed Amendments to Deschutes County Code,
1, 16. 010; 1,17.010; and 22.20.015, Code Enforcement and Land Use
Dear Planning Commissioners:
This office represents Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust
dated December 3, 2003, who reside at 63382 Fawn Lane, Bend, Deschutes County ("County"),
Oregon. The put -pose of this letter is to oppose the proposed recommendation to amend the
Deschutes County Code ("DCC" or "Code"), inclusive of proposed changes to DCX.1 22,20.015.
Please accept these comments in opposition to the proposed Code amendments and include these
comments in the record, Please add this office to the notice list for this file.
The Bishops have been involved in a four-year battle to protect mule deer migratory
habitat from the unlawful and unpermitted surface mining and construction. of a private water ski
lake and another large acreage recreational lake in Turnalo with the undisclosed intent for them
to be the centerpiece of a luxury housing development in the middle of an established rural
residential area in the Turnalo Deer Winter Range. The current applications by KC Development
Group, LLC ("KCDG") and Tanager Development, LLC ("TAN") (together, the "Developers")
arc a stark example to consider as a reflection of the citizens' intended effect for the current
22,20,015.
In July 2017 the Developers reapplied for conditional use permits to authorize the illegal
water ski and second lakes that were denied in a 2016 decision by the Board of County
Commissioners, and in contravention of a denied water storage rights transfer by another
tribunal, Oregon Water Resources Department ("OWRD") and the determination by it in 2015
that the water had been illegally transferred by Turnalo Irrigation District ("TID") to KCDG and
hereafter cannot be transferred by TiD. Notwithstanding these rutings, the unpermitted lakes
continue to hold the illegally transferred water, Tile Developers are trying to profit from their
misdeeds by not only seeking retroactive approval for their illegal uses, but also to construct a
planned development of luxury houses to surround and use the water ski take. The application
`T OMASI SALYER MARTIN
Deschutes County Planning; Commission
Page 2
should never have been processed under DCC 22.20.01.5. Yet here, again, the Bishops find
themselves having to continue to finance the County's code enforcement of final decisions
already made by the Board of County Commissioners and QWR.D.1
Surprisingly, the staff report for this file mentions the scant settled and ongoing disputes
involving the current version of DCC 22.20.015, but glaringly fails to make any mention of the
illegal and unpermitted KCDG water ski lake — a boondoggle that has already involved millions
of dollars, thousands of professional and private citizen hours, and more than a hundred
individuals in the public review process. The omission was probably made because it would ruin
the quaint narrative created about the Deschutes Junction example at page 4 of the December 29,
2017 staff memorandum ("Staff Memorandum"), In the Deschutes Junction situation, the
County's hearings officer, Liz Fancher, found that she could not approve the application because
it did not resolve all code violations discovered in the current application. Yet, that same
attorney — Liz Rancher -- is currently representing KCDG and TAN in their attempt to obtain land
use approvals for the planned development that seeks to profit. off the illegal and unpermitted
water ski and second lake on K.CDG's property by building a luxury housing development with
the water ski lake as the centerpiece.
The Staff Memorandum proposes to change the text of DCC 1.16.01.0, 1..17.010, and
22.20.015. At the moment, DCC 22,20,015.17 requires applications for land use approvals on
properties with land use violations to resolve those violations. The staff attempts to analyze
these proposed Code amendments as though they can cover all possible outcomes or land use
applications, but fall far short of clarity and instead invite discretionary decision making that guts
the intended purpose of the Code, as currently drafted. The Planning Commission should
consider the rushed effort to make the proposed amendments as compared to the lengthy public
participation process to draft the current Code, The Bishops oppose any changes to the current
Code that would allow the County to rubber stamp approval of land use violations, No one
should benefit from digging first and asking for forgiveness later.
The County staff memorandum is based on an incorrect premise that the 150 -day decision
snaking rule somehow forecloses the application of the current Coda language.
The County staff incorrectly assumes that a final land use decision can only be extended
to a total of 365 days, where the staff states:
i The Bishops began their enforcement efforts in 2014 when KCDG was surface mining its property without permits
to construct the unpermitted lakes. Deschutes County did not stop the work then, and only aller the Bishops fought
the County -issued land use compatibility statement, did the County Board of Commissioners fully and finally
determine in 2015 that the KCDG property required conditional use approvals for the surface mining and
construction of the water ski lake. In 2016, applications by KCDG for such approvals were denied and those
decisions arc final. Neither TTD nor KCl)(; chose to appeal those decisions to LURA and missed their bite at the
apple. The Bishops continue to Oppose this development in relevant courts and through the local land Ilse process
and relevant state agencies.
I41SI i QP-LU7\00387578.00I
TOMASI SALYER MARTIN
Deschutes County Planning Commission
Page 3
"(quasi-judicial land use applications, which are property specific, have a 150 -day clock
for a final decision at the local level... While the 150 -day clock can be tolled... The
timeline for a local land use decision cannot exceed 365 days," Staff Memorandum, p. 3.
However, the Staff Memorandum misses an important aspect ...- the applicant controls the 150 -
day clock and the applicant may extend the deadline for a final. decision beyond a total of 365
days. Under ORS 215,427, the timeline for a county land use decision may be extended at the
written request of the applicant and total extensions may not exceed 215 days, which equals 365
days, LUBA ruled on this issue under the similarly worded 120 -day rule for cities and hold that
the applicant controls the timeline and may waive the timeline at its own discretion, even beyond
,2 is for the Planning Commission
the 365 -day mark Thus, the simple resolution to this problem
to recommend that the County Board of Commissioners simply delete DCC 22.20.040,0 that
states in land use application reviews, The total of all extensions may not exceed 215 days,"
Thus, it' the County believes a sepal -ate Code Enforcement proceeding should occur, then ample
time can be provided at the applicant's discretion to extend the 150 -day land use decision
deadline, or accept a denial because it cannot meet the Code criteria under DCC 22.20.015,
For some mysterious reason, the staff cannot wrap themselves around the idea that a
denial is the correct outcome when the Code criteria cannot be met. Application,,; for land use
approvals that do not cure land use violations should not be processed under any circumstances.
This would of course, obviate any need for confusing extensions or 150 -day problems in the first
instance.
CONCLUSION
The current language under DCC 22,20.015 is working just as the public expects it to
operate. If the County has a code enforcement or planning staff problem, then the County's
decision makers should allocate the funds necessary to implement and enforce the current Code,
not completely strip it of meaning. The Planning Commission should recommend that the Board
reject the proposed text amendments because the proposed language will create more loopholes
for offending parties to circumvent land use violations. The fix is simple, delete DCC
22,20.040.0 that states in land use application reviews, "The total of all extensions may not
exceed 215 days."
Thank you for your consideration of these comments.
Sincerely,_
Jennifer IM7 raga.
r
' See Leathers Oil Company) v. City oJ'Newherg, 63 Or LUBA 176 (2011).
B1511011-LU7100387578.001
Peter Russell
From: Tracy Griffin
Sent: Wednesday, January 10, 2018 4:02 PM
To: 'swisher@bendbroad band.com'; hughp@srowners.org; 'dalecraw@bend net.com';
jimbeeger@gmail.com; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Gisela Ryter [mailto:giselavest@icloud.com]
Sent: Wednesday, January 10, 2018 11:52 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because landowners with code violations should not be
rewarded. It sends a bad message to law abiding citizens and rewards the unlawful. What message does that send? I
think the current code is just fine. It has only been used once to deny a land use application.
Other Oregon counties use similar enforce the codes to prevent code violators from developing their land.
Central Oregon has undergone incredible growth recently. Why not be more diligent in protecting the environment and
let the code stand as it is?
Gisela Ryter
Bend resident from 1979-2016
McCall Idaho, 83638
Box 1847
Sent from my iPad
Peter Russell
From: Tracy Griffin
Sent: Wednesday, January 10, 2018 4:01 PM
To: 'swisher@bend broad band.com; hughp@srowners.org; 'dalecraw@bend net.com';
jimbeeger@gmail,coni'; 'kirby.maggie@gmail.com; susantunno@gmail.com;
'les.hudson@q.com'
Ce: Peter Russell; Nick Lelack
Subject: FW: Code Enforcement and Land Use comments
Attachments: LandWatch__CodeEnforcementComments_1.10.18.pdf
From: Rory Isbell [mailto:rory@colw.org]
Sent: Wednesday, January 10, 2018 1:42 PM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Code Enforcement and Land Use comments
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcie, Beeger, and Tunno,
Please accept the attached comments from Central Oregon LandWatch regarding Code Enforcement and I.,and
Use.
Regards,
Rory Isbell
Rory Isbell
Staff Attorney
Central Oregon LandWatch
50 SW Bond St., Ste. #4
Bend, Oregon 97702
541-647-2930
rory�,colw.or
January 10, 2018
Deschutes County.planning Commission
c/o Deschutes County Community Development Department
117 NW LafayetteAvenue
Bend, Oregon 97708
Re: Code Enforcement and Land Use
Dear Commissioners:
vvW,-,;. e n I I -ell "N e td wo ic 11,c; i'q
Thank you for hearing testimony from the public on your recommendation to the Board of
County Commissioners on whether to initiate amendments to DCC 1.16.010, 1.1.7.0 10, and
22.20.015. LandWatch participated in the Stakeholders Committee leading tip to the County's
adoption of the current DCC 22.20.015 in 2015, as well as the recent reconvening of the
stakeholders group to contemplate staff's proposal to RMerld DCC 22.20.015. For the reasons stated
below, we believe that DCC 22,20.015 has worked well and that there is no justification to amend
DCC 22.20.01.5,
I. The current DCC 22.20.0.15 was adopted less than two years ago and should not be
changed after being used only once to deny a land use application.
The Stakeholders Committee on Code Enforcement and Land Use was formed in January
2015 to find agreement between stakeholders about whether the County should process development
permits on properties that have outstanding code enforcement complaints. After multiple
stakeholder meetings, research of other Oregon counties' processes, work sessions with the Board of
County Commissioners and Planning Commission, and public hearings, the Board of County
Commissioners adopted the current DCC 22.20.015 on December 22, 2015. It took effect in March
of 2016 - - only 22 months ago. The provision is modeled on sirnilar provisions found in several
other Oregon counties' codes. DCC 22.20.015 promotes certainty for applicants and proactive
enforcement of the Deschutes County Code by requiring land use applicants to come into
2
compliance with the code before the applicant can enjoy the benefit of a land use application
approval.
The recent denial by a hearings officer of land use applications in 247 -.16 -000751 -SP and
247-16- 000752-CL.J (the Fagen decision) is a perfect example of DCC 22.20.015 in action. There,
the hearings officer identified several existing code violations. These violations were brought to the
hearings officer's attention by concerned neighbors in a process that afforded the applicant the
opportunity to respond to the allegations of code violation. Confronted. with clear evidence of the
several existing code violations, the hearings officer denied the land use application based on the text
and legislative intent of DCC 22.20.015.
11. The experience of.Multnornah County is instructive.
Multnomah County uses a very similar code section in its land use code at MCC 37.0560"
which the current DCC 22.20.015 was modeled on. In a phone conversation oil October 24, 2017,
Multnomah County Planning Director Mike Cerbone explained ]low his County implements their
code enforcement and land use ordinance. He stated that a hearings officer or staff makes findings
regarding code violations and makes a decision based on those findings. If staff makes a finding that
a code violation is present, the applicant is informed that the county cannot approve the application,
unless the applicant signs a Voluntary Compliance Agreement (VCA). This finding of code
violation is a part ofthe land use decision, and the applicant can supply information to rebut that
finding on appeal. In the last two years, Multnomah County has not denied an application based on
MCC 37.0560, as any applicant who has been found by staff or a bearings officer to have a code
' MCC 37,0560 Code Compliance and Applications. Except as provided in subsection (A), the County shall
not make a land use decision approving development, including land divisions and property line adjustments,
or issue a building permit for any property that is not in full compliance with all applicable provisions of
the Multnomah County Land Use Code and/or any permit approvals previously issued by the County. (A) A
permit or other approval, including building permit applications, may be authorized if: (1) it results in the
property coming into full compliance with all applicable provisions of the Multnomah County Code. This
includes sequencing of permits or other approvals as part of a voluntary compliance agreement; or (2) It is
necessary to protect public safiety; or (3) It is for work related to and within a valid easement over, on or under
an affected property. (B) For the purposes of this section, Public Safety means the actions authorized by the
permit would cause abatement of conditions found to exist on the property that endanger the life, health,
personal property, or safety of the residents or public. Examples ol'that situation include but are not limited to
issuance of permits to replace faulty electrical wiring; repair or install furnace equipment; roof repairs; replace
or repair compromise(] utility infrastructure for water, sewer, fuel, or power; and actions necessary to stop
earth slope failures.
I
violation has withdrawn their application or, as is more often the case, enters into a VCA.
Multnomah County staff tries to proactively help applicants cure their code violation in this process,
rather than deny applications or initiate code enforcement proceedings. Mr. Cerbone stated that
MCC 37.0560 works well, it gives the county leverage, and the county has no problem denying an
application based on a code violation, or extending the clock to let the applicant decide to withdraw
or enter a VCA. Multnomah County views MCC 37.0560 as a purely procedural criterion, and if an
applicant feels the code section was used inaccurately, the remedy for applicants is to appeal in the
traditional land use process. He stated that the separate code enforcement process often takes more
than 150 days, so using MCC 37,0560 to determine a code violation exists is more efficient for the
applicant. Finally, Multnomah County has received no pushback from the public, and usually an
applicant subject to MCC 37.0560 knows they have an existing code violation and needs to come
into compliance before receiving a land use approval.
Multnomah County's successful experience with its code enforcement and land use code
should be instructive for Deschutes County. Any perceived risk or vulnerability that Deschutes
County feels the current code presents is speculative and unsubstantiated. The experience of
Multnomah County, taken together with the one instance that DCC 22.20.015 has been applied in
Deschutes County, confirm that a policy of denying land use applications when a code violation
exists not only comports with due process concerns, but is a proactive method of achieve code
compliance in the County,
Ill, CRD staff should retain authority to make administrative findings of code violation.
The proposed DCC 22.20.015(C) would require a finding of code violation by a hearings
officer or the Board under DCC 22.20.015, not just an administrative decision. That lias not been
found to be necessary by other counties, and an applicant would always have the right to appeal an
administrative decision to a hearings officer. CDD staff, when presented with clear evidence of
existing code violations, should be able to make findings of code violation and deny an application
based on that finding.
M
IV. The proposed option for a separate code enforcement hearing is unnecessary.
The proposed DCC 22.20.015(A)(2) would allow a hearings officer or the Board to continue
a land use hearing until a separate code enforcement proceeding under DCC Chapter 1.17 occurs.
This option is inefficient and unnecessary. A separate hearing adds an unnecessary layer to the land
use application process by involving Deschutes County Code Enforcement, Land use applicants
almost universally want their applications reviewed as soon as possible. Inserting a separate review
process by Code Enforcement adds an unnecessary step to the land use application process. CDD
staff, and especially a hearings officer or the Board of Commissioners, are capable of providing land
use applicants with a determination on whether the applicant is out of compliance with Deschutes
County Code, and they can do so in a single streamlined land use application process. Providing this
efficient method of code enforcement was the recommendation of the Code Enforcement Review
Committee when DCC 22.20.015 was developed in 2015-2016. The experience of Multnomah
County, discussed above, instructs that avoiding a separate code enforcement process is in the best
interest of the applicant and the county, as dealing with a code violation in a land use proceeding
saves all parties time and money.
Further, the proposed amendment to DCC 1.16.010(F) would require that land use
applications for a property with an existing code violation to be processed exclusively under DCC
22.20.015, and not under DCC 1,16.010 or DCC Chapter 1.17. Allowing a hearings officer or the
Board to continue a land use hearing in order to allow a separate code enforcement proceeding under
DCC Chapter 1. 17, as DCC 22.20.015(A)(2) would allow, conflicts with proposed DCC
1,16.010(F).
V. The proposed option to approve an application notwithstanding an existing code
violation is contrary to the purpose of the code and the equal application of law.
The proposed changes with DCC 22,20,015(A)(8) would allow a hearings officer or the
Board to approve a land use application for a property that is in violation of land use regulations or
conditions of approval of a previous land use decision. That is contrary to the intent behind DCC
22,20.015, which is to prevent exactly this scenario by ensuring that code violators do not receive
land use approvals. Staff uses the example of improper color of a house in the L.andscape
.Management Combing Zone as a minor code violation that might not warrant denial of a land use
5
application. Allowing discretionary decisions that some sections of Deschutes County code are
more important than others would erode the public's confidence in the equal application of law in
Deschutes County, That example of an improper house color is also something that could easily be
remedied by an applicant. The idea behind this code is to obtain compliance with the code and
provide avenues of compliance. It is not to allow exception to code compliance.
LandWatch believes that the proposed amendments to DCC 22.20.015 are unnecessary.
DCC 22.20,015(A)(8), which would allow approval of applications notwithstanding existing code
violations, is particularly inappropriate. Thank you again for the opportunity to provide comment on
this matter. I-andWatch urges the Planning Commission not to recommend initiating a text
amendment of the current code to the Board.
Sincerely,
Rory l.sbell
Staff Attorney
Central Oregon LandWatcli
R 9
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 4:40 PM
To: 'swisher@bend broad ban d.com; hughp@srowners.org; 'dalecraw@bend net.corn';
jimbeeger@gmail.com; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
Attachments: OLAWAonCodeEnforcment.pdf; ATT00001.txt; IntroToOLAWA.pdf
-----Original Message -----
From: Eva Eagle [mailto:eva.eagle@mac.com]
Sent: Tuesday, January 9, 2018 11:41 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Cc: Nick Lelack <Nick.Lela ck@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
Oregon Land and Water Alliance finds that the current code enforcement process is a good one and we oppose
weakening the provision that was created through a good deal of hard work. Find attached our thoughts on this subject.
Also attached is a description of our organization, for those of you who are not familiar with it.
Thank you for the opportunity to share our views.
Eva Eagle
Peter Russell
From: Tracy riff in
Sent Tuesday, January 9,2O18438PK4
To; 'omishe/@bendb/oadbandzom';hughp@snowners.o/g;'du|ecram@bendne1com'�
]imbeeger4PgmaU.cono';'ki/by.maggie@gmaiicom'; sucantunno@PgmaU.cum;
'|es.hudson@q.00m'
Cc: Peter Russell; Nkkielack
Subject: FW: Please Dm Not Weaken Code Enforcement
From: ]uetteStorm [naiko:@jstorm@BmaU.00m]
Sent: Tuesday, January 9,ZU18115SAM
To: Planning Commission <P|enningCommiss|on@odeschutex.orK>
Subject: Please DoNot Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Ya|uic,Bcuger, ondIouoo`
Accountability for one's actions is important to maintaining order ioasociety. When someone violates the luvv
ozucode nfconduct, baorshe should boheld accountable. The county should not change orbend the rules for
disregard ofits own code.
lsupport keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations. Let ummaintain order and protect the
quality oflife Central Oregonians hold dear.
Thank you,
Joette Storm
63%l48d Dr.
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 4:25 PM
To: swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
'jimbeeger@gmail.com'; 'kirby.maggie@gmail,com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Wendy Holzman [mailto:wendomere@gmail.comj
Sent: Tuesday, January 9, 2018 4:09 PM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
We support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and we oppose
allowing approval of land use permits for properties with code violations because it would set an unfortunate precedent.
It would be a slap in the fact to those who have been in compliance, and reward those with previous code violations.
The code is working exactly as intended with only one application being turned down since it was adopted nearly 2 years
ago. So perhaps a case of trying to fix a problem that doesn't need to be fixed.
We believe it is important to enforce our existing County Code and not weaken it with this change.
Thank you for the opportunity to let you know our position. Thank you for your service.
Sincerely,
Alan and Wendy Holzman
2659 NW Brickyard St.
Bend, OR 97703
Peter Russell
From: -f racy Griffin
Sent: Tuesday, January 9, 2018 10:49 AM
To: swisher@ bend broad band.com'; hughp@srowners,org; 'dalecraw@bendnet.com;
Jimbeeger@grnailX0rT)'; 'kirby.rnaggie@gmaiLcom'; susantunno@grnail.corn;
'ies.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Deschutes County Code Enforcement & Land Use
From: Mary Ann Kruse [mailto:junehog9@grnail.com]
Sent: Monday, January 8, 2018 9:22 PM
To: Planning Commission <PlanningCom mission @deschutes.org>
Subject: Deschutes County Code Enforcement & Land Use
Planning Commission:
I support keeping the existing Deschutes County Code on Code Enforcement & Land Use as is. I oppose
allowing approval of land use permits for properties with code violations.
The rule of law should be equally applied in Deschutes County. The proposed changes would allow property
owners with code violations to enjoy the benefit of developing their land. Code violators should play by the
rules & should not be entitled to enjoy the same benefits as law abiding citizens. What good are laws if those
laws are not enforced? Why would. a citizen abide by the laws if there is no repercussion?
The current code was adopted less than two years ago after a lengthy process. It has only been used to deny a
land use application One time. The current code is working as it was intended.
Loosening the code is @ odds with the County's policy of proactively enforcing code violations. The County
should use every means CO3 its disposal to penalize code violators. It appears that approving ].and use permits for
properties with code violations only encourages more violations. With a minimum of enforcement personnel,
why create more work for yourselves? The current code cures violations by denying development applications
when a code violation exists or by requiring the applicant to cure their code violation before they are permitted
to develop their land.
Land use hearings provide applicants the opportunity to make their case by testifying & submitting evidence.
There is no need to open a separate code enforcement hearing in the middle of a land use review. Hearings
Officers are more than capable of determining if a code violation exists during the review of land use
applications.
Other Oregon counties have similar code enforcement policies & use them to prevent code violators from
developing their land. Deschutes County can & should do the sarne.
I encourage you to keep the existing Deschutes County Code on Code Enforcement & Land Use as is. It works,
It does not reward violators. It does not require the personnel a change in the code would do.
".I'his proposed change is unnecessary & would undermine the rule of law in Deschutes County,
Thank you fbr the opportunity to corrirnefit.
W A, K r i, is e
jufl�hg
"Take a giant step outside your mind." Taj Mahal
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 10:49 AM
To: 'swisher@bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.com'; 'kirby.maggie@gmail.com; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Code Enforcement
From: mtnview210@bendnet.com [mailto:mtnview210@bendnet.coml
Sent: Monday, January 8, 2018 4:23 PM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Code Enforcement
I understand there will be a hearing on Thursday, January 11, 2018 regarding code enforcement. I am
unable to attend the meeting in person, but do want to share my strong feeling that land use codes should
be enforced and enforced in a fair and equitable manner. Some developers who ignore code should not be
let off the hook, but held to the same standards as everyone else.
Thank you,
Elouise Mattox
63224 Stonewood Dr
Bend OR 97701
Peter Russell
From: Tracy Griffin
Sent Tuesday, January 9'2Ol8lO:1OAk4
To: 'mvisher@bend b^oadbandzom';hughp@sxxwners.org;'da|ecrav@bend neLoom';
iimbeeger@gmaiicom';'kirby.maggie¢ygmaiicom';susontunnu@gmaiiconn;
'|es.hudson@qzom'
Co Peter Russell; Nick Le|ack
FW: Please Do Not Weaken Code Enforcement
From: Jacqueline Newbold [meibonewbo|d0SOS@bendbroad band.noxl
Sent: Tuesday, January 9,2O187:16AK8
To: Planning Commission <P|anningCnmmission@deschutesor8>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, 9alcie.Beuger, andTouoo,
I support keeping the existing Deschutes County Code on Code
Enforcement and Land Use as is, and I oppose allowing approval
of land use permits for properties with code violations because...
The rule of law should be equally applied in Deschutes County.
The proposed changes would allow property owners with code
violations to enjoy the benefit of developing their land. Code
violators should play by the rules and not enjoy the same benefits
as law abiding citizens.
The current code was adopted less than two years ago after a
lengthy process and has only beer) used to deny a land use
application once. The current code is working as intended.
Loosening the code is at odds with the County's policy of
proactively enforcing code violations. The County should use
every means at its disposal to cure code violations, including
when code violators want to develop their land. The current
code does this by denying development; applications when a code
violation exists, or requiring the applicant to cure their code
violation before they can develop their land.
Land use hearings provide applicants the opportunity to make
their ease by testifying and submitting evidence. There is no need
to open a separate code enforcement hearing in the middle of a
land use review. Hearings Officers can determine if a code
violation exists during their review of land use applications.
Other Oregon counties have similar code enforcement policies
and use 'them to prevent code violators From developing their
land.
t
Russell—
From: Tracy Griffin
Sent: Tuesday, January 9,2O1O1O:48AK4
To: 'svvisher@bend bnoadband.com';hughp6gsrowne/surg;'da|ecmvv@bend netznm';
1imbeeger@gmaiicom';'kirbymaggie@gmaiicom';susantunno@gmaiicom;
'|es,hudson@qzom'
Cc Peter Russell; NickLe|ack
Subject: FW: Undermining the rule of law in Deschutes County
From: Carla Pfund[moiho:cada.pfond@gynaiiconl
Sent: Tuesday, January 9,201O1O:22AM
To: Planning Commission < Ian ningCommission @deschutesorQ>
Subject: Undermining the rule oflaw in Deschutes County
Please do not weaken the code to allow property owners in violation of county code to further develop their
property. This is very unfair to the people in the city that follow the rules of construction.
Do not disadvantage those who are doing the right thing.
8 d*not support givingdnie benefit to code violators.
Carla Pfund
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:58 PM
To: swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bendnet.com
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Ce: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: ndeanploss [mailto:ndeanploss@aol.com]
Sent: Monday, January 8, 2018 11:38 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno, I support keeping the existing
Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing approval of land use permits
for properties with code violations.
It is not acceptable to have work or land alterations at permit requirement levels performed w/o proper permits. It is also
unacceptable to look a blind eye to code violations. If the County does not have adequate Code Enforcement personnel,
work to get them hired and to work. Remember, code violations potentially can harm unsuspecting individuals. Your
responsiblity is to protect the health & safety of us all.
Norm Ploss
Eastmont Drive
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:58 PM
To: 'swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Laurie [mailto:ljlakin@gmail,comj
Sent: Monday, January 8, 2018 12:05 PM
To: Planning Commission<PlanningCommission @deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because once it is weakened, there will be continued
violations that will only weaken it further.
It took a lot of time and effort to enact the current code and it is working well. If it is weakened it will create an attitide
of violating the code and asking forgiveness later. In the end, that will create more work for the Planning Commission.
Sincerely,
Laurie Lakin
1016 NW Ogden Avenue
Bend, OR 97703
Sent from my iPad
Peter Russell
Frorn: Tracy Griffin
Sent: Monday, January 8, 2018 3:57 PM
To: 'swishes@ bend broad band.com'; hughp@srowners.org; 'dale craw@bendnet.com';
Jimbeeger@grn ail.corn'; 'kirby.rnaggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: WJR [mailto:juniwilt@grraail.cornj
Sent: Monday, January 8, 2018 12:41 PM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because...
The rule of law should be equally applied in Deschutes County. The proposed changes would allow
property owners with code violations to enjoy the benefit of developing their land. Code violators should
play by the rules and not enjoy the same benefits as law abiding citizens.
* The current code was adopted less than two years ago after a lengthy process and has only been used to
deny a land use application once. The current code is working as intended.
s Loosening the code is at odds with the County's policy of proactively enforcing code violations. The County
should use every rneans at its disposal to cure code violations, including when code violators want to
develop their land. T'110 current code clyses this by denying developrnent applications when a code
violation exists, or requiring the applicant to cure their code violation before they can develop their land.
Land use hearings provide applicants the opportlunity to make their ease by testifying orad submitting
evidence;. I here is no need to open a separate code enforcement hearing in the middle of a land use
review. Hearings Officers are c-apable of determining if a code violation exists during their review of land
use applicLations.
» Other Oregon counties have sirnilLar code enforcement policies and use t.hern to prevent code violators frorTa
developing their land
incere:y,
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:35 PM
To: 'swisher@bend broad band.com'; hughp@srowners.org; 'dal ecraw@bend net.com';
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail,com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Land use permits and property code violations
From: Ann Brayfield [mailto:abrayfield@yahoo.coml
Sent: Monday, January 8, 2018 3:31 PM
To: Planning Commission<PlanningCommission @deschutes.org>
Subject: Land use permits and property code violations
sting D schUtO
A Tunno,
Mnt anO trend Use as is,
s violations beCaLlSe the
I
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:29 AM
To: 'swisher@bend broad band.com'; hughp@srowners.org; 'dalecraw@bend net.com';
jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Mara Engle[mailto:raider_runner87@yahoo.comj
Sent: Monday, January 8, 2018 11:26 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because the current code was adopted less than two
years ago after a lengthy process and has only been used to deny a land use application once. The current code is
working as intended. Additionally, loosening the code is at odds with the County's policy of proactively enforcing code
violations. The County should use every means at its disposal to cure code violations, including when code violators
want to develop their land. The current code does this by denying development applications when a code violation
exists, or requiring the applicant to cure their code violation before they can develop their land.
Thank you.
All the best,
Mara
Bend Resident
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:28 AM
To: swisher@bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: Michele McKay [mailto:michemckay@gmail.com]
Sent: Monday, January 8, 2018 9:49 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcie, Beeger, and 'I'unno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because...
• The rule of law should be equally applied in Deschutes County. The proposed changes would
allow property owners with code violations to enjoy the benefit of developing their land. Code
violators should play by the rules and not enjoy the same benefits as law abiding citizens.
• The current code was adopted less than two years ago after a lengthy process and has only
been used to deny a land use application once. The current code is working as intended.
• Loosening the code is at odds with the County's policy of proactively enforcing code violations.
The County should use every means at its disposal to cure code violations, including when
code violators want to develop their land. The current code does this by denying
development applications when a code violation exists, or requiring the applicant to cure
their code violation before they can develop their land.
• Land use hearings provide applicants the opportunity to make their case by testifying and
submitting evidence. There is no need to open a separate code enforcement hearing in the
middle of a land use review. Hearings Officers are capable of determining if a code violation
exists during their review of land use applications.
• Other Oregon counties have similar code enforcement policies and use them to prevent code
violators from developing their land.
Thank you for your consideration,
Michele McKay
Bend, OR
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:28 AM
To: 'swisher@bend broadband.com; hughp@srowners.org; 'dalecraw@bend net.com';
'jimbeeger@gmaiLcom'; 'kirby.maggie@gmail.corn'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: Paula Hawes[mailto:paulahawes@sbcglobal.net]
Sent: Monday, January 8, 2018 9:57 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Tunno, Crawford, Kirby, Hudson, Beeger and Palcic,
It was recently brought to my attention that Deschutes County is considering a change that allows
properties with code violations to be able to obtain land use permits. The first question that leaps to
mind is "why?" By changing this rule and treating those landowners who have broken the law the
same as their law-abiding neighbors, you are essentially rewarding them for violating codes that were
put in place to help create more harmonious living conditions for all. These codes help to keep our
county a desirable place to live and visit, which in turn provides more economic benefits to our
county.
1 support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is,
and I oppose allowing approval of land use permits for properties with code violations for the following
reasons:
The rule of law should be equally applied in Deschutes County. The proposed
changes would allow property owners with cede violations to enjoy the benefit of
developing their land. Code violators should play by the rules and not enjoy the
code does this by denying development applications when a code violation exists,
or requiring the applicant to cure their code violation before they can develop their
0 Other Oregon counties have similar code enforcement policies and use them I
prevent code violators from developing their land."
Thank you,
Paula Hawes
Peter Russell
From. Tracy Griffin
Sent: Monday, January 8,Z0l8l1:27AK4
To, 'swisher@bend broad band.00m';hughp@srowneo.org;'da|ecraw@bend netcum';
jimbeeger@gmoi|.com';'ki/bv.maggie@gmaiicom';susantunno@gmaiicom;
'|es.hudson@q.com'
Cc: Peter Russell; NickLe|ack
Subject: FW:
From: Marie Timm [maiknilahnnade@gmaiicom]
Sent: Monday, January 8,20189:58AM
To: Planning Commission <P|anningCommission@desohutes.o/gx
Subject:
lsupport keeping the existing Deschutes County Code on Code Enforcement and Land Use asis, and loppose
allowing approval oflaodume permits for properties with code violations because I am a law abiding citizen of
TnroaloEFlJ|uudaudoxpeotfbicappKoudouofodlonreot|unsiucveryouo.Doo'tlo{1beloveofcuoutyxunot
you to adjust laws to favor drug running businesses like pot growers and retailers. Nn good will come ofit. You
cannot treat one group one way and another group another way. That is lawlessness.
—
MARIETDMM
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8,2O1O1126Ak4
To: 'rwisher@bend broad 6ond.nom';hughp@>srowneo.o*g;'da|ecrmw@ben6net.com';
jimbeege/@gmmU.com';'kirby.maggie@agmaiicum';susantunno@gmai|zom;
'|es.hudson@q.com'
Cc: Peter Russell; NickLe|adk
Subject: FW: Please Do Not Weaken Code Enforcement
From: Jim Figuoki[maihojimfiguoNftmuilzomJ
Sent: Monday, January 8,2UlO1O:Z6AK8
To: Planning Commission <P|anningCnmmiss|on@deschutes.orQ>
Subject: Please DnNot Weaken Code Enforcement
Dear Commissioners Swisher' Crawford, Kirby, Hudson, 9ulcic,8ceger, andTonoo,
Inupport keeping the existing Deschutes County Code on Code Enforcement and Land l,.Jse as is, and Ioppose
allowing approval nfland use permits for properties with code violations because the issuance or non -issuance
nfupermit iothe strongest regulatory tool inthe County's tool kit for getting compliance.
Why would the County continue Wissue permits to applicants who choose not to comply with existing
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:25 AM
To: swisher@bend broadband.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.corn'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Sandy Thompson[mailto:bsand@bendbroadband.comj
Sent: Monday, January 8, 2018 10:33 AM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
PLEASE keep existing County Codes on Enforcement and Land Use. If you allowing approval of permits for properties
with code violations, there's no end to what that could mean for exceptions and lack of any restraint to keep our area
the lovely area we all want it to be. We can't maintain that if we allow approvals with violations. The words violation and
law and permit need to mean something. Otherwise, you, as government officials in this process, also mean nothing.
Take a stand. Keep codes and enforcements as meaningful as possible.
Thank you,
Sandy Thompson,
author "The Grace of Curves: A Memoir in Poetry"
(available at amazon.com and at Dudley's in Bend, OR)
Peter Russell
From: Peter Gutowsky
Sent: Monday, January 8, 2018 10:33 AM
To: Peter Russell
Subject: FW:
Peter Gutowsky, AICP
Planning Manager
Deschutes County Community Development Department
117 NW Lafayette
Bend, OR 97701
Tel: (541) 385-1709
Web: www.deschutes.org/cdd
From: Marie Timm [mailto:ilahmarie@gmail.com]
Sent: Monday, January 8, 2018 9:58 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject:
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because I am a law abiding citizen of
Tumalo EFU land and expect fair application of all current laws to everyone. Don't let the love of money cause
you to adjust laws to favor drug running businesses like pot growers and retailers. No good will come of it. You
cannot treat one group one way and another group another way. That is lawlessness.
MARIE TIMM
Tumnalo tax payer
Peter Russell
From: PeterGutowky
Sent: Monday, January 8,2O181O:32AM
To/ Peter Russell
Cc: Nickielack
Subject: FW: Please Do Not Weaken Code Enforcement
Peter GutowskKA|[P
Planning Manager
Deschutes County Community Development Department
1l7NVVLafayette
Bend, OR977O1
Tel: (S41)38S-1700
VVeb:
From: Jim FiguoN[maikojimfiguoN@gmaiicom]
Sent: Monday, January D,IU181O:26AW1
To- Planning Commission <P|wnnin8Comm\ss|un@deschutes.org>
Subject. Please DoNot Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, ICirby, llndxon,yo]uiu,Beoger, audIuuno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because the issuance or non -issuance
ofupermit is the strongest regulatory tool in the County's tool kit for getting compliance.
Why would the County continue to issue permits to applicants who choose not to comply with existing
Jim ficornki,F/\3L/\
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 9:37 AM
To: 'swisher@bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.com'; 'kirby.maggie@grnail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Wildriver [m ailto:wild rive rl0@gmail.com]
Sent: Monday, January 8, 2018 9:33 AM
To: Planning Commission<PlanningCornmission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because I have several neighbors who have put in
bootleg septic systems to serve additional dwelling units on their EFU land. Due to high rents in the area, people are
doing this and making money with illegal land uses. Where is the county in enforcing zoning? Come on, this isn't the wild
west. Do your job!
Dan Puffinburger
21295 Back Alley Rd.
Baned, Ore
Jennifer M. Bragar
Attorney
Admitted in Oregon, Washington,
and California
jbragar@tornasilegal.com
,January 11, 2018
HAND DELIVERED
Deschutes County Planning Corm-nission
c/o Peter Russell
P.O. Box 6005
117 NW Lafayette Avenue
Bend, OR 97708-6005
121 SW Morrison St, Suite 1850
Portland, Oregon 97204
Tel 503-894-9900
Fax 971-544-7236
www.tornasilegal,com
Re: Bishop Comments on Proposed Amendments to Deschutes County Code,
1.16,010; 1,17.010; and 22.20.015, Code Enforcement and Land Use
Dear Planning Commissioners:
This office represents Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust
dated December 3, 2003, who reside at 63382 Fawn Lane, Bend, Deschutes County ("County"),
Oregon. The put -pose of this letter is to oppose the proposed recommendation to amend the
Deschutes County Code ("DCC" or "Code"), inclusive of proposed changes to DCC 22,20.015.
Please accept these comments in opposition to the proposed Code amendments and include these
comments in the record, 'Please add this office to the notice list for this file.
`I'lle Bishops have been involved in a four-year battle to protect mule deer migratory
habitat from the unlawful and unperinitted surface mining and construction of a private water ski
lake and another large acreage recreational lake in Turnalo with the undisclosed intent for them
to be the centerpiece of a luxury housing development in the middle of an established rural
residential area in the Turnalo Deer Winter Range. The current applications by KC , Development
Group, LLC ("KCDG") and Tanager Development, LLC ("TAN") (together, the "Developers")
are a stark example to consider as a reflection of the citizens' intended effect for the current I.X.0
22.20,015.
In July 2017 the Developers reapplied for conditional use permits to authorize the illegal
water ski and second lakes that were denied in a 2016 decision by the Board of County
Commissioners, and in contravention of a denied water storage rights transfer by another
tribunal, Oregon Water Resources Department ("OWRD") and the determination by it in 2015
that the water had been illegally transferred by Turnalo Irrigation District ("TID") to KCDG and
hereafter cannot be transferred by TID, Notwithstanding these rulings, the unpermitted lakes
continue to hold the illegally transferred water. The Developers are trying to profit from their
misdeeds by not only seeking retroactive approval for their illegal uses, but also to construct a
planned development of luxury houses to surround and use the water ski lake. The application
TOMASI SALYER MARTIN
Deschutes County Planning Commission
Page 2
should never have been processed under DCC 22.20.01.5. Yet here, again, the Bishops find
themselves having to continue to finance the County's code enforcement of final decisions
already made by the Board of County Commissioners and OWRW
Surprisingly, the staff report for this file mentions the scant settled and ongoing disputes
involving the current version of DCC 22.20.01.5, but glaringly fails to make any mention of the
illegal and unpermitted KCDG water ski lake — a boondoggle that has already involved millions
of dollars, thousands of professional and private citizen hours, and more than a hundred
individuals in the public review process. The omission was probably made because it would ruin
the quaint narrative created about the Deschutes Junction example at page 4 of the December 29,
2017 staff memorandum ("Staff Memorandum"), In the Deschutes Junction situation, the
Coctnty's hearings officer, Liz Fancher, found that she could not approve the application because
it did not resolve all code violations discovered in the current application. Yet, that same
attorney — Liz panther -- is currently representing KCDG and TAN in their attempt to obtain land
use approvals for the planned development that seeks to profit off the illegal and unpermitted
water ski and second lake on K.CDG's property by building a luxury housing development with
the wager ski lake as the centerpiece.
The Staff Memorandum proposes to change the text of DCC 1.16.01.0, 1.17.010, and
22.20.015. At the moment, DCC 22.20.015.D requires applications for land use approvals on
properties with land use violations to resolve those violations. The staff attempts to analyze
these proposed Code amendments as though they can cover all possible outcomes of land use
applications, but fall far short of clarity and instead invite discretionary decision making that guts
the intended purpose of the Code, as currently drafted. The Planning Commission should
consider the rushed effort to make the proposed amendments as compared to the lengthy public
participation process to draft the current Code. The Bishops oppose any changes to the current
Code that would allow the County to rubber stamp approval of land use violations. No one
should benefit from digging first and asking for forgiveness later.
The County staff memorandum is based on an incorrect premise that the 150 -day decision
making rule somehow forecloses the application of the current Code language.
The County staff incorrectly assumes that a final land use decision can only be extended
to a total of 365 clays, where the staff states:
1 The Bishops began their enforcement efforts in 2014 when KCDG was surface mining; its property without permits
to construct the unpermitted lakes. Deschutes County did not stop the work then, and only anter the Bishops fought
the County -issued land use compatibility statement, did the County Board of Commissioners fully and finally
determine in 2015 that the KCDG property required conditional use approvals tin' the surface inining and
construction of the water ski lake. In 2016, applications by KCDG for such approvals were denied and those
decisions are final. Neither TiD nor KC;17G chose to appeal those decisions to LURA anti missed their bite at the
apple. The Bishops continue to appose this development in relevant courts and through the local land use process
and relevant state agencies.
iB511QP-LU7100387578 001
TOMASI SALYER MARTIN
Deschutes County Planning Commission
Page 3
"Quasi-judicial land use applications, which are property specific, have a 150 -day clock
for a final decision at the local level... While the 150 -day clock can be tolled...'I'lic
tirneline for a local land use decision cannot exceed 365 days," Staff Memorandum, p. 3,
However, the Staff Memorandum misses an important aspect the applicant controls the 150 -
(lay clock and the applicant may extend the deadline for a final decision beyond a total of 365
days. Under ORS 215.427, the timeline for a county land use decision may be extended at the
written request of the applicant and total extensions may not exceed 215 days, which equals 365
days, LUBA ruled on this issue under the similarly worded 120 -day rule for cities and hold that.
the applicant controls the timeline and may waive the thrieline at its own discretion, even beyond
the 365 -day mark.2
Thus, the simple resolution to this problem is for the Planning Commission
to recommend that the County Board of Commissioners simply delete DCC 22.20.040,C' that
states in land use application reviews, "The total of all extensions may not exceed 215 days."
Thus, if the County believes a separate Code Enforcement proceeding should occur, then ample
time can be provided at the applicant's discretion to extend the 150 -day land use decision
deadline, or accept a denial because it cannot meet the Code criteria under DCC 22.20.015.
For some mysterious reason, the staff cannot wrap themselves around the idea that a
denial is the correct outcome when the Code criteria cannot be met. Applications for land use
approvals that do not cure land use violations should not be processed under any circumstances.
This would of course, obviate any need for confusing extensions or 150 -day problems in the first
instance.
CONCLUSION
The current language under DCC 22,20.0 15 is working just as the public expects it to
operate. If the County has a code enforcement or planning staff problem, then the County's
decision makers should allocate the funds necessary to implement and enforce the cut -rent Code,
not completely strip it of meaning. The Planning Commission should recommend that the Board
reject the proposed text amendments because the proposed language will create more loopholes
for offending parties t o circumvent land use violations. The fix is simple, delete DCC
22,20,040.0 that states in land use application reviews, "The total of all extensions may not
exceed 215 days."
Thank you for your consideration of these comments.
Sincerely,
Jennifer Im. nagar
2 See Leathers Oil Compaig v. City oj'Newherg, 63 Or LUBA 176 (2011).
BISHOP -1,137\00397578.00 I
Peter Russell
From: Tracy Griffin
Sent: Wednesday, January 10, 2018 4:02 PM
To: swisher@bendbroadband.com'; hughp@srowners.org; Aalecraw@bend net.com';
jimbeeger@gmail.com;'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Gisela Ryter [mailto:giselavest@icloud.com]
Sent: Wednesday, January 10, 2018 11:52 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because landowners with code violations should not be
rewarded. it sends a bad message to law abiding citizens and rewards the unlawful. What message does that send? I
think the current code is just fine. It has only been used once to deny a land use application.
Other Oregon counties use similar enforce the codes to prevent code violators from developing their land.
Central Oregon has undergone incredible growth recently. Why not be more diligent in protecting the environment and
let the code stand as it is?
Gisela Ryter
Bend resident from 1979-2016
McCall Idaho, 83638
Box 1847
Sent from my iPad
Peter Russell
From: Tracy Griffin
Sent: Wednesday, January 10, 2018 4:01 PM
To: 'swisher@bendbroadband.com'; hughp@srowr}ers.org; 'dalecraw@bendnet.com;
jimbeeger@gmail.com'; 'kirby.maggie@gmaiLcom; susantunno@gmaiLcom;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Code Enforcement and Land Use comments
Attachments: LandWatch_CodeEnforcementComments_1.10.18.pdf
From: Rory Isbell [mailto:rory@colw.org]
Sent: Wednesday, January 10, 2018 1:42 PM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Code Enforcement and Land Use comments
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
Please accept the attached comments from Central Oregon LandWatch regarding Code Enforcement and Land
Use.
Regards,
Rory Isbell
Rory Isbell
Staff Attorney
Central Oregon LandWatch
50 SW Bond St., Ste. #4
Bend, Oregon 97702
541-647-2930
rot•y@eolw.org
January 10, 2018
Deschutes County Planning Commission
c/o Deschutes County Community Development Department
117 NW Lafayette Avenue
Bend, Oregon 97708
Re: Code Enforcement and Land Use
Dear Commissioners:
Q
Thank you for hearing testimony from the public on your recommendation to the Board of
County Commissioners on. whether to initiate amendments to DCC 1.16.01.0, 1. 17.010, and
22.20,015. LandWatch participated in the Stakeholders Committee leading up to the County's
adoption. of the current DCC 22.20.015 in 2015, as well as the recent reconvening of the
stakeholders group to contemplate staffs proposal to 1HITC11d DCC 22.20.015. For the reasons stated
below, we believe that DCC 22.20.015 has worked well and that there is no justification to amend
DCC 22.20.01.5.
The current DCC 22.20.01.5 was adopted less than two years ago and should not be
changed after being used only once to deny a land use application.
The Stakeholders Committee on Code Enforcement and Land Use was formed in January
2015 to find agreement between stakeholders about whether the County should process development
permits on properties that have outstanding code enforcement complaints. After multiple
stakeholder meetings, research of other Oregon counties' processes, work sessions with the Board of
County Commissioners and Planning Commission, and public hearings, the Board of County
Commissioners adopted the current UCC 22.20.015 on December 22, 2015. It took effect it) March
of 2016 - - only 22 months ago. The provision is modeled on similar provisions found in several
other Oregon counties' codes. DCC 22.20,015 promotes certainty For applicants and proactive
enforcement of the Deschutes County Code by requiring land use applicants to come into
compliance with the code before the applicant can enjoy the benefit of a land use application
approval.
The recent denial by a hearings officer of land use applications in 247 -.16 -000751 -SP and
247-16- 000752-CLJ (the Fagen decision) is a perfect example of .DCC 22.20.015 in action. There,
the hearings officer identified several existing code violations. These violations were brought to the
hearings officer's attention by concerned neighbors in a process that afforded the applicant the
opportunity to respond to the allegations of code violation. Confronted. with clear evidence of the
several existing code violations, the hearings officer denied the land use application based on the text
and legislative intent. of DCC; 22.20.015.
II. The experience of Multnomah County is instructive.
Multnomah County uses a very similar code section in its land use code at MCC 37.05601,
which the current DCC 22.20.015 was modeled on. In a phone conversation on October 24, 2017,
Multnomah County Planning Director Mike Cerbone explained how his County implements their
code enforcement and land use ordinance. He stated that a hearings officer or staff makes findings
regarding code violations and snakes a decision based on those findings. If staff makes a finding that
a code violation is present, the applicant is informed that the county cannot approve the application,
unless the applicant signs a Voluntary Compliance Agreement (VCA). This finding of code
violation is a part of'the land use decision, and the applicant can supply information to rebut that
finding on appeal. In the last two years, Multnomah County has not denied an application based on
MCC 37.0560, as any applicant who has been found by staff or a hearings officer to have a code
1 MCC 37,0560 Code Compliance acid Applications. Except as provided in subsection (A), the County shall
not make a land use decision approving development, including land divisions and property line adjustments,
or issue a building permit for any property that is not in full compliance with all applicable provisions of
the Multnomah County Land Use Code and/or any permit approvals previously issued by the County. (A) A
permit or other approval, including building permit applications, may be authorized if: (1) It results in the
property coming into full compliance with all applicable provisions of the Multnomah County Code. This
includes sequencing of permits or other approvals as part of a voluntary compliance agreement; or (2) It is
necessary to protect public safety; or (3) It is for work related to and within a valid easement over, on or under
an affected property. (I3) For the purposes of this section, Public Safety means the actions authorized by the
permit would cause abatement of conditions found to exist on the property that endanger the life, health,
personal property, or safety of the residents or public. Examples of that situation include but are not limited to
issuance of permits to replace faulty electrical wiring; repair or install furnace equipment; roof repairs; replace
or repair compromised utility infrastructure for water, sewer, fuel, or power; and actions necessary to stop
earth slope failures.
violationhaswithdrawn their application or, as is more often the case, enters into a VCA.
Multnomah County staff tries to proactively help applicants cure their code violation in this process,
rather than deny applications or initiate code enforcement proceedings. Mr. Cerbone stated that
MCC 37,0560 works well, it gives the county leverage, and the county has no problem denying an
application based on a code violation, or extending the clock to let the applicant decide to withdraw
or enter a VCA. Multnomah County views MC(. -.'37.0560 as a purely procedural criterion, and if an
applicant feels the code section was used inaccurately, the remedy for applicants is to appeal in the
traditional land use process. He stated that the separate code enforcement process often takes more
than 150 days, so using MCC 37,0560 to determine a code violation exists is more efficient for the
applicant, Finally, Multnomah County has received no pushback from the public, and usually an
applicant subject to MCC 37.0560 knows they have an existing code violation and needs to come
into compliance before receiving a land use approval,
Multnomah County's successful experience with its code enforcement and land use code
should be instructive for Deschutes County. Any perceived risk Or vulnerability that Deschutes
County feels the current code presents is speculative and unsubstantiated. The experience of
Multnomah County, taken together with the one instance that DCC 22.20,015 has been applied in
Deschutes County, confirryi that a policy of denying land use applications when a code violation
exists not only comports with due process concerns, but is a proactive method of achieve code
compliance in the County.
111, C.D.D staff should retain authority to make administrative findings of code violation.
The proposed DCC 22.20.015(C) would require a finding of code violation by a hearings
officer or the Board under DCC 22.20.015, not just an administrative decision. That has riot been.
found to be necessary by other counties, and an applicant would always have the right to appeal an
administrative decision to a hearings officer. CDD staff, when presented with clear evidence of
existing code violations, should be able to make findings of code violation and deny an application
based on that finding.
4
IV. The proposed option for a separate code enforcement hearing is unnecessary.
The proposed DCC 22.20.015(A)(2) would allow a hearings officer or the Board to continue
a land use hearing until a separate code enforcement proceeding under DCC Chapter 1.17 occurs.
This option is inefficient and unnecessary. A separate hearing adds an unnecessary layer to the land
use application process by involving Deschutes County Code Enforcement. Land use applicants
almost universally want their applications reviewed as soon as possible. Inserting a separate review
process by Code Enforcement adds an unnecessary step to the land use application process. CDD
staff, and especially a hearings officer or the Board of Commissioners, are capable of providing land
use applicants with a determination on whether the applicant is out of compliance with Deschutes
County Code, and they can do so in a single streamlined land use application process. Providing this
efficient method of code enforcement was the recommendation of the Code Enforcement Review
Committee when DCC 22.20,015 was developed in 2015-2016. The experience of Multnomah
County, discussed above, instructs that avoiding a separate code enforcement process is in the best
interest of the applicant and the county, as dealing with a code violation in a land use proceeding
saves all parties time and money.
Further, the proposed amendment to DCC 1.16.010(F) would require that land use
applications for a property with an existing code violation to be processed exclusively under DCC
22.20.015, and not under DCC 1.16.010 or DCC Chapter 1.17, Allowing a hearings officer or the
Board to continue a land use hearing in order to allow a separate code enforcement proceeding under
DCC Chapter 1. 17, as DCC 22.20.015(A)(2) would allow, conflicts with proposed DCC
1.16.01.00").
V. The proposed option to approve an application notwithstanding an existing code
violation is contrary to the purpose of the code and the equal application of law.
The proposed changes with lK.C22,20.015(A)(8) would allow a hearings officer or the
Board to approve a land use application for a property that is in violation of land use regulations or
conditions of approval of a previous land use decision. That is contrary to the intent behind DCC
22.20.015, which is to prevent exactly this scenario by ensuring that code violators do not receive
land use approvals. Staff uses the example of improper color of a house in the Landscape
.Management Combing Zone as a minor code violation that might not warrant denial of a land use
5
application. Allowing discretionary decisions that some sections of Deschutes County code are
more important than others would erode the public's confidence in the equal application of law in
Deschutes County. 'That example of an improper house color is also something that could easily be
remedied by an applicant. The idea behind this code is to obtain compliance with the code and
provide avenues of compliance. .I.t is not to allow exception to code compliance.
LandWatch believes that the proposed amendments to DCC 22.20.015 are unnecessary.
DCC 22,20.015(A)(8), which would allow approval of applications notwithstanding existing code
violations, is particularly inappropriate. Thank you again for the opportunity to provide comment on
this matter. LandWatch urges the Planning Commission not to recommend initiating a text
amendment of the current code to the Board.
Sincerely,
.Rory Isbell
Staff Attorney
Central Oregon I-andWatch
or� i Si- N-, "'R 9,�,- 2'.
NP
n I ["""I ore g", dc.I if Jn, org
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 4:40 PM
To: swish er@bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com;
jimbeeger@gmail.com; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
Attachments: OLAWAonCodeEnforcment.pdf; ATT00001.txt; IntroToOLAWA.pdf
-----Original Message -----
From: Eva Eagle [mailto:eva.eagle@mac.com]
Sent: Tuesday, January 9, 2018 11:41 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Cc: Nick Lelack <Nick.Lela ck@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
Oregon Land and Water Alliance finds that the current code enforcement process is a good one and we oppose
weakening the provision that was created through a good deal of hard work. Find attached our thoughts on this subject.
Also attached is a description of our organization, for those of you who are not familiar with it.
Thank you for the opportunity to share our views.
Eva Eagle
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 4:38 PM
To: swisher@bendbroadband.com'; [iuglip@srowners.org; 'dalecraw@bendnet.com;
'jimbeeger@gmaii.com';'kirby.maggie@gmail.com'; susantuiino@gr-nail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: Joette Storm [mailto:gjstorm@gmail.coml
Sent: Tuesday, January 9, 2018 11:55 AM
To: Planning Commission <Plan n ingCom mission@ d esch utes.o rg>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
Accountability for one's actions is important to maintaining order in a society. When someone violates the law
or a code of conduct, he or she should be held accountable. The county should not change or bend the rules for
disregard of its own code.
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations. Let us maintain order and protect the
quality of life Central Oregonians hold dear.
Thank you,
Joette Storm
63214 Brightwater Dr.
Bend, OR
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 4,25 PM
To: 'swisher@bend broad band.com; hughp@srowners,org; 'dalecraw@bend net.com';
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Wendy Holzman [mailto:wendomere@gmail.comj
Sent: Tuesday, January 9, 2018 4:09 PM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
We support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and we oppose
allowing approval of land use permits for properties with code violations because it would set an unfortunate precedent.
It would be a slap in the fact to those who have been in compliance, and reward those with previous code violations.
The code is working exactly as intended with only one application being turned down since it was adopted nearly 2 years
ago. So perhaps a case of trying to fix a problem that doesn't need to be fixed.
We believe it is important to enforce our existing County Code and not weaken it with this change.
Thank you for the opportunity to let you know our position. Thank you for your service.
Sincerely,
Alan and Wendy Holzman
2659 NW Brickyard St.
Bend, OR 97703
Peter Russell
From: Tracy Griffin
Sent: -Fuesday, January 9, 2018 10:49 AM
To: . swisher@ bend broad band.com'; hLighp@srowners.org; 'dalecraw@bendnet.com;
'jimbeeger@gmaiLcorn'; 'kirby.rnaggie@gmail.com'; susantunno@gniail.corn;
'les.hudson@G•com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Deschutes County Code Enforcement & Land Use
From, Mary Anti Kruse [mailto:junehog9@gmail.com]
Sent: Monday, January 8, 2018 9:22 PM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Deschutes County Code Enforcement & Land Use
Planning Commission:
I support keeping the existing Deschutes County Code on Code Enforcement & Land Use as is. I oppose
allowing approval of land use permits for properties with code violations.
The rule of law should be equally applied in Deschutes County. The proposed changes would allow property
owners with code violations to enjoy the benefit of developing their land. Code violators should play by the
rules & should not be entitled to enjoy the same benefits as law abiding citizens. What good are laws if those
laws are not enforced? Why would a citizen abide by the laws if there is no repercussion?
The current code was adopted less than two years ago after a lengthy process. It has only been used to deny a
land use application one time. The current code is working as it was intended.
Loosening the code is @ odds with the County's policy of proactively enforcing code violations. The County
should use every means @
, its disposal to penalize code violators. It appears that approving land use permits for
properties with code violations only encourages more violations. With a minimum of enforcement personnel,
why create more work for yourselves? The current code cures violations by denying development applications
when a code violation exists or by requiring the applicant to cure their code violation before they are permitted.
to develop their land.
Land use hearings provide applicants the opportunity to make their case by testifying & submitting evidence.
There is no need to open a separate code enforcement hearing in the middle of a land use review. Hearings
Officers are more than capable of determining if a code violation exists during the review of land use
applications.
Other Oregon counties have similar code enforcement policies & use thea► to prevent code violators from
developing their land. Deschutes County can & should do the same.
I encourage you to keep the existing Deschutes County Code on Code Enforcement & Land Use as is. It works.
It does not reward violators. It does not require the personnel a change in the code would do.
This proposed change is unnecessary & would undermine the rule of law in Deschutes County.
Thank YOU for the opportunity to cornment.
M.A. Kris se
Rend, OR
"Take a giant step outside your mind." Taj Mahal
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 10:49 AM
To: swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bend net.com';
jimbeeger@gmail.com';'kirby.maggie@gmail.com; susantunno@gmaii.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Code Enforcement
From: mtnview210@bendnet.com [mailto:mtnview210@bend net.com]
Sent: Monday, January 8, 2018 4:23 PM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Code Enforcement
I understand there will be a hearing on Thursday, January 11, 2018 regarding code enforcement. I am
unable to attend the meeting in person, but do want to share my strong feeling that land use codes should
be enforced and enforced in a fair and equitable manner. Some developers who ignore code should not be
let off the hook, but held to the same standards as everyone else.
Thank you,
Elouise Mattox
63224 Stonewood Dr
Bend OR 97701
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9.2O181O:48AK4
To: 'swisher@bendbooadbandzom';hughp@snowne/s.o/g;'da|ecrmw@bendnetcom';
iimbeeger@gmaiicom';'kirbymaggie@gmaiicom';susantunno@ymaiioom;
'|es.hudson@q.o*m'
Cc Peter Russell; Nick Le|ack
Subject: FW: Meese Do Not Weaken [ode Enforcement
From: Jacqueline Newbold [meibonewbo|d0SU5@hendb/oadband.com]
Sent: Tuesday, January 9,20187:16AM
To�Planning Commission <P}anningComm\o|on@desxhutes.urQx
Subject: Please Do Not Weaken Code Enforcement
Dear Swisher, Crawford, Kirby, Hudson, 9mlcie,Beognr,and
1
I support keeping the existing Deschutes County Code on Code
Enforcement and Land Use as is, and I oppose allowing approval
of land use permits for properties with code violations because...
The rule of law should be equally applied in Deschutes County.
The proposed changes would allow property owners with code
violations to enjoy the benefit of developing their land. Code
violators should play by the rules and not enjoy the same benefits
as law abiding citizens.
The current code was adopted less than two years ago after a
lengthy process and has only been used to deny a land use
application once. The current code is working as intended.
Loosening the code is at odds with the County's policy of
proactively enforcing code violations. The County should use
every means at its disposal to cure code violations, including
when code violators want to develop their land. The current
code does this by denying development applications when a code
violation exists, or requiring the applicant to cure their code
violation before they can develop their land.
Land use hearings provide applicants the opportunity to make
their ease by testifying and submitting evidence. There is no need
to open a separate code enforcement hearing in the middle of a
land use review. Hearings Officers can determine if a code
violation exists during their review of land use applications.
Other Oregon counties have similar code enforcement policies
and use them to prevent code violators from developing their
land.
1_
Sincerely,
Jacqueline Newbold
Peter Russell
From: Tracy Griffin
Sent: Tuesday, January 9, 2018 10:48 AM
To: 'swisher@bend broadband.com; hughp@srowners.org; 'da lecraw@bend net.com';
'jimbeeger@gmail.com; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Undermining the rule of law in Deschutes County
From: Carla Pfund [mailto:carla.pfund@gmail.coml
Sent: Tuesday, January 9, 2018 10:22 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Undermining the rule of law in Deschutes County
Please do not weaken the code to allow property owners in violation of county code to further develop their
property. This is very unfair to the people in the city that follow the rules of construction.
Do not disadvantage those who are doing the right thing.
I do not support giving this benefit to code violators.
Carla Pfund
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:58 PM
To: 'swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bend net.com';
'jimbeeger@gmail.corn'; 'kirby.maggie@gmaii.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: ndeanploss [ma ilto:ndeanploss@aol.com]
Sent: Monday, January 8, 2018 11:38 AM
To: Planning Commission<PlanningCommission @deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno, I support keeping the existing
Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing approval of land use permits
for properties with code violations.
It is not acceptable to have work or land alterations at permit requirement levels performed w/o proper permits. It is also
unacceptable to look a blind eye to code violations. If the County does not have adequate Code Enforcement personnel,
work to get them hired and to work. Remember, code violations potentially can harm unsuspecting individuals. Your
responsiblity is to protect the health & safety of us all.
Norm Ploss
Eastmont Drive
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:58 PM
To: 'swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bend net.com';
jimbeeger@gmail.com'; 'kirby.maggie@gmaii.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Laurie [mailto:ljlakin@gmail,comj
Sent: Monday, January 8, 2018 12:05 PM
To: Planning Commission<PlanningCommission @deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because once it is weakened, there will be continued
violations that will only weaken it further.
it took a lot of time and effort to enact the current code and it is working well. If it is weakened it will create an attitide
of violating the code and asking forgiveness later. In the end, that will create more work for the Planning Commission.
Sincerely,
Laurie Lakin
1016 NW Ogden Avenue
Bend, OR 97703
Sent from my iPad
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:57 PM
To: 'swisher@bend broad band.com'; lhughp@srowners.org; 'dalecraw@bend net.com';
'jimbeeger@grnail.corn; 'kirby.maggie@gmail.corn'; susantunno@gmail.com;
'les.hridson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: WJR (mailto:juniwilt@grr)aiLcorra]
Sent: Monday, January 8, 2018 12:41 PM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Iludson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because...
The rule of law should be equally applied in Deschutes County. The proposed changes would allow
property owners with code violations to enjoy the benefit of developing their land, Code violators should
play by the rules and not enjoy the sarne benefits as law abiding citizens,
T'he current code was adopted less than two years ago after a lengthy process and has only been used to
deny a land use application once. _t..he current code is working as intended.
Loosening the rode is at odds with the County's policy of proactively enforcing code violations. The County
should use every mems at its disposal to cure code violations, including when code violators want to
develop their land. The currant code does this by denying development applications when a code
violation exists, or requiring the applicant to cure their code violation before they can develop their land.
Land use. hearings provide applicants the opport:.rnity to make their case by testifying and submitting
evidence. _C here is no need to open a separate code; enforcement hearing in the middle of a land use
review. Hearings Officers are capable of deters ining if a code violation exists during their review of land
use appliczations.
* Other Oregon counties have sirnilarcode enforcement policies and use thern to prevent code, violators from
developing their land,"
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 3:35 PM
To: 'swisher@bend broadband.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@grnail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Land use permits and property code violations
From: Ann 8rayfield [mailto:abrayfield@yahoo.comj
Sent: Monday, January 8, 2018 3:31 PM
To: Planning Commission<PlanningCommission @deschutes.org>
Subject: Land use permits and property code violations
Dear Commissioners Swisher, Crawford, Kirby, Hudson, �alsi , Bcger, and Tunno,
I look forward to Dearing fl -Orn you..
Thank you,
Ann 3rayfiold
I
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:29 AM
To: swisher@bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Mara Engle[mailto:raider_runner87@yahoo.com]
Sent: Monday, January 8, 2018 11:26 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because the current code was adopted less than two
years ago after a lengthy process and has only been used to deny a land use application once. The current code is
working as intended. Additionally, loosening the code is at odds with the County's policy of proactively enforcing code
violations. The County should use every means at its disposal to cure code violations, including when code violators
want to develop their land. The current code does this by denying development applications when a code violation
exists, or requiring the applicant to cure their code violation before they can develop their land.
Thank you.
All the best,
Mara
Bend Resident
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:28 AM
To: swisher@bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
From: Michele McKay [mailto:michemckay@gmail.com]
Sent: Monday, January 8, 2018 9:49 AM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and 'Fun.no,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because...
The rule of law should be equally applied in Deschutes County. The proposed changes would
allow property owners with code violations to enjoy the benefit of developing their land. Code
violators should play by the rules and not enjoy the same benefits as law abiding citizens.
• The current code was adopted less than two years ago after a lengthy process and has only
been used to deny a land use application once. The current code is working as intended.
• Loosening the code is at odds with the County's policy of proactively enforcing code violations.
The County should use every means at its disposal to cure code violations, including when
code violators want to develop their land. The current code does this by denying
development applications when a code violation exists, or requiring the applicant to cure
their code violation before they can develop their land.
• Land use hearings provide applicants the opportunity to make their case by testifying and
submitting evidence. There is no need to open a separate code enforcement hearing in the
middle of a land use review. Hearings Officers are capable of determining if a code violation
exists during their review of land use applications.
• Other Oregon counties have similar code enforcement policies and use them to prevent code
violators from developing their land.
Thank you for your consideration,
Michele McKay
Bend, OR
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:28 AM
To: swisher@bend broadband.com'; hughp@srowners.org; 'dalecraw@bend net.com';
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW; Please Do Not Weaken Code Enforcement
From: Paula Hawes[mailto:paulahawes@sbcglobal.netj
Sent: Monday, January 8, 2018 9:57 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Tunno, Crawford, Kirby, Hudson, Beeger and Palcic,
It was recently brought to my attention that Deschutes County is considering a change that allows
properties with code violations to be able to obtain land use permits. The first question that leaps to
mind is "why?" By changing this rule and treating those landowners who have broken the law the
same as their law-abiding neighbors, you are essentially rewarding them for violating codes that were
put in place to help create more harmonious living conditions for all. These codes help to keep our
county a desirable place to live and visit, which in turn provides more economic benefits to our
county.
support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is,
and I oppose allowing approval of land use permits for properties with code violations for the following
reasons:
The rule of law should be equally applied in Deschutes County. The proposed
changes would allow property owners with code violations to enjoy the benefit of
developing their lana. Code violators should play by the rules and not enjoy the
same benefits as law abiding citizens.
The current code was adapted less than two years ago after a lengthy process and
has only been used to deny a land use application once. The current crude is
Loosening the code is at odds with the County's policy of proactively enforcing
code violations. The County should use every means at its disposal to cure code
violations, including when code violators want to develop their land. The current
code draw this by denying development applications risen a code violation exists,
or requiring the applicant to cure their crude violation before they can develop their
land,
capabletestifying and submitting evidence. There is no need to open a separate code
enforcement hearing in the middle of a land use review. Hearings Officers are
determining if a code violation•
prevent code violators from developing their land."
Thank you,
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:27 AM
To: 'swisher@bendbroadband.com'; hughp@srowners.org; 'cla lecraw@ bend net,com.;
Jirnbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW:
From: Marie Timm [mailto:i1ahmarie@gmail.com]
Sent: Monday, January 8, 2018 9:58 AM
To: Planning Commission <Plan n ingCom mission @deschutes.org>
Subject:
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because I am a law abiding citizen of
Turnalo EFU land and expect fair application of all current laws to everyone. Don't let the love of money cause
you to adjust laws to favor drug running businesses like pot growers and retailers. No good will come of it. You
cannot treat one group one way and another group another way. That is lawlessness.
MARIE TIMM
Tunialo tax payer
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8,2U181126AM
To: 'owisher@bend broad bund.com';hughp@snzwneo,o/g�'da|ecmagybendne\zom';
1imbeeger@gmaU.com';'ki/by.maggie@gmaUzum';susantunno@gmai|.com;
'|es.hudson@q.com'
Cc: Peter Russell; NickLe|ack
Subject: FW: Please DoNot Weaken Code Enforcement
From: Jim Ggu/dki[maihnjimfiguoN@Dmaiizom]
Sent: Monday, January 8,2O181D:26AK8
To. Planning Commission <Pbnnin8Commisdon@deschuteo.orQ>
Subject: Please DoNot Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Pukcio Beeger, aud7\u000,
Isupport keeping the existing Deschutes County Code on Code Enforcement and Land Use asis, and Ioppose
allowing approval ofland use permits for propertieswith code violations because the issuance ornon-issuance
of a permit is the strongest regulatory tool in the County's tool kit for getting compliance.
Why would the County continue to issuto applicants who choose not to comply with existing
Jim Bcurski,FASL&
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:25 AM
To: 'swisher@bend broadband.com'; hughp@srowners.org; 'dalecraw@bend net.com';
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Sandy Thompson[mailto:bsand@bendbroadband.comj
Sent: Monday, January 8, 2018 10:33 AM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
PLEASE keep existing County Codes on Enforcement and Land Use. If you allowing approval of permits for properties
with code violations, there's no end to what that could mean for exceptions and lack of any restraint to keep our area
the lovely area we all want it to be. We can't maintain that if we allow approvals with violations. The words violation and
law and permit need to mean something. Otherwise, you, as government officials in this process, also mean nothing.
Take a stand. Keep codes and enforcements as meaningful as possible.
Thank you,
Sandy Thompson,
author "The Grace of Curves: A Memoir in Poetry"
(available at amazon.com and at Dudley's in Bend, OR)
Peter Russell
From: Peter Gutowsky
Sent: Monday, January 8, 2018 10:33 AM
To: Peter Russell
Subject: FW:
Peter Gutowsky, AICD
Planning Manager
Deschutes County Community Development Department
117 NW Lafayette
Bend, OR 97701
Tel: (541) 385-1709
Web: www.deschutes.org/cdd
From: Marie Timm [mailto:ilahmarie@gmaii.com)
Sent: Monday, January 8, 2018 9:58 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject:
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because I am a law abiding citizen of
Tumalo EFU land and expect fair application of all current laws to everyone. Don't let the love of money cause
you to adjust laws to favor drug running businesses like pot growers and retailers. No good will come of it. You
cannot treat one group one way and another group another way. That is lawlessness.
MARIE TIMM
Tum.alo tax payer
Peter Russell
From:
Pete,Gukxwky
Sent
Monday, January 8,201810:]2AK4
To:
Peter Russell
C±
Nick Le|ack
Subject:
FW: Please Do Not Weaken Code Enforcement
Fyi'
Peter Gutowsky, AICP
Planning Manager
Deschutes County Community Development Department
117 NVVLafayette
Bend, ORB77O1
Tel: (S41)385 -l709
Web:
From: Jim Figumki[maih»jimfigurskJ@8maiicom]
Sent: Monday, January D,2O1810:26AK8
To: Planning Commission <P|annin&Commission@demchutaoor8>
Subject: Please DoNot Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, PuJoiu,Bcogur, mzdIu000,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose
allowing approval of land use permits for properties with code violations because the issuance or non -issuance
of a permit is the strongest regulatory tool in the County's tool kit for getting compliance.
Why would the County continue to issue to applicants who choose not to comply with existing
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 9:37 AM
To: swisher@bendbroadband,com'; hughp@srowners.org; 'dalecraw@bendnet.com';
'jimbeeger@gmail.com'; 'kirby.maggie@gmail.com'; susantunno@gmail.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please Do Not Weaken Code Enforcement
-----Original Message -----
From: Wildriver [mailto:wildriverl0@gmail.com]
Sent: Monday, January 8, 2018 9:33 AM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Please Do Not Weaken Code Enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is, and I oppose allowing
approval of land use permits for properties with code violations because I have several neighbors who have put in
bootleg septic systems to serve additional dwelling units on their EFU land. Due to high rents in the area, people are
doing this and making money with illegal land uses. Where is the county in enforcing zoning? Come on, this isn't the wild
west. Do yourjobl
Dan Puffinburger
21295 Back Alley Rd.
Baned, Ore
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:24 AM
To: 'swisher@ bend broad band.com'; hughp@srowners.org; 'dalecraw@bendnet.com';
jimbeeger@gmail.com';'kirby.maggie@gmaii.com; susantunno@gmaii.com;
'les.hudson@q.com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Deschutes Co. Code on Code Enforcement
From: Alice Elshoff [mailto:calice58@gmail.coml
Sent: Monday, January 8, 2018 10:47 AM
To: Planning Commission <PlanningCommission@deschutes.org>
Subject: Deschutes Co. Code on Code Enforcement
I SLIpport keeping the existing Deschutes COUnty Code on Code Enforcernent and [..arid Use as is,
arid I oppose allowing approval of land We permits for properties with code violations becaUse I
believe in the rule of law being equally applied and the CUrrent code is working as intended.
Alice Elshoff
Peter Russell
From: Tracy Griffin
Sent: Monday, January 8, 2018 11:24 AM
To: swisher@bendbroadband.com'; hughp@srowners.org; 'dalecraw@bendnet.com
jimbeeger@gmail.com'; 'kirby.maggie@gmail.corn'; susantunno@gmail.com;
'les.hudson@q•com'
Cc: Peter Russell; Nick Lelack
Subject: FW: Please do not weaken code enforcement
-----Original Message -----
From: Josh Bleecher Snyder [mailto:josharian@gmail.com]
Sent: Monday, January 8, 2018 11:05 AM
To: Planning Commission<PlanningCommission@deschutes.org>
Subject: Please do not weaken code enforcement
Dear Commissioners Swisher, Crawford, Kirby, Hudson, Palcic, Beeger, and Tunno,
I strongly support keeping the existing Deschutes County Code on Code Enforcement and Land Use as is.
I oppose allowing approval of land use permits for properties with code violations; that undermines incentive to comply
and effectively punishes law-abiding citizens.
Thank you,
Josh Bleecher Snyder
Peter Russell
From:
Pete/ Russell
Sent:
Thursday, January 4'ZO18814Ak4
To:
Planning Commission
Cc:
Peter Russell
SubjectGould
e-mail on enforcement
RA
From: Peter Russell
Sent Tuesday, December 12,2O174:38PK8
To: 'nunzie@padAer.com'<nunzie@pac@er.com>
Cc: Peter Russell <Peter.Russell @dcsohutes.org>
Subject: RE: code enforcement
Nunde,
I'll enter this into the public record when the PC meets on the topic in January. Thanks.
Peter Russell
Senior Transportation Planner
Deschutes County
(541) 383-6718
From: Peter Gutowsky
Sent: Tuesday, December 1l]0174l4PK4
To:'nunzie@pachier.com'
Cc: Peter Russell
Subject: FW: code enforcement
Nuozie,
I forwarded your email to Peter Russell to convey to the Planning Commission. As it pertains to code enforcement code
language, their meeting this Thursday isawork session. The Planning Commission will hold apublic hearing nnJanuary
11 to take testimony as to whether the current code warrants amending,
If You have questions about the process, please touch base with Peter.
Peter 5utowohy,/V[P
Planning Manager
Deschutes County Community Development Department
117NVVLafayette
Bend, OR977O1
Tel: (541) 385-1,709
Wei): vvww.desch.utes.orPJcdd
111.1 .. . .............. ............. .. .. ,""""I'l,", _-
From: Nunzie [mailto:nLir)zie@jt)2ac.i.f..i,,e,_r,.roti)
Sent: Tuesday, December 12, 2017 3:37 PM
To: Planning Commission <PlanningCoM171iSSJonPd e..sch_utes_.o. rp,>
......... .
Subject: code enforcement
Greetings Planning Commissioners: thank you for considering my views
The objective of code enforcement is to achieve code compliance.
Our current code enforcement language is simple and meets the criteria of getting land uses into compliance
with our code.
The whole purpose of enforcement is to manage land uses where offenders either don't meet a previous
condition of approval or who don't obtain prospectively the proper land use approval for their land use
activity. The objective of code enforcement is to achieve code compliance.
The proposed text amendment language is too complicated and does not meet the objective ofcornpliance with
code.
I encourage you. to allow the current code enforcement" language to remain unaltered since it is working and has
simple language: read it here:
CURRENT LANGUAGE FOR DCC 1.16.010, 1.17.010, and 22.20.015
1.16.010. Violations Deemed Class A or B Classification -Penalties.
A. Violation of a county ordinance shall be punishable, upon conviction, by fine or by the
specific remedies specified within the County Code.
B. Each county ordinance specifying a County offense shall classify the ordinance violation
as a Class A or Class B violation.
C. A sentence to pay a fine for a violation of a county ordinance shall be a sentence to pay
an amount not exceeding the Maximum Fines provided in ORS 153.018,
D. Notwithstanding this section and DCC 1.16.030, for violations of Chapters 13,04, 13.08,
13.36, 15.04 and 15.10 and Titles 17 18 and 19, the Presumptive and Minimum fine
amount shall be the Maximum Fine amount described in DCC 1.16.010(C).
E. For violations of County Code provisions not listed in DCC 1, 16.01 O(D), the Presumptive
and Minimum Fine amounts shall be as provided in ORS Chapter 153.
F. A land use application for a property with an existing code violation will be accepted, but
not processed by the County based on DCC 22,20.015,
G. Notwithstanding DCC 1,16.010(D), the court or the hearings officer may impose a fine
lower than the fine provided in those two sections, upon a finding of mitigating factors
including, but riot limited to, indigence of the defendant, severity of the violation, number
of times the defendant has been previously cited for Deschutes County Code violations;
length of time the violation has existed; and reason(s) the violation has not been cured.
(Ord. 201.5-020, §11, 2015; Ord, 2014-003, §11, 2014; Ord. 2013-015, §1, 2013; Ord. 2008-026,
§1, 2008; Ord. 2003-021 §3, 2003; Ord. 2002-016 §9, 2002; 86-076 §1, 1986)
1.17.010. Applicability, exception.
A Unless another procedure is expressly provided for, this chapter governs the procedure
for the assessment of civil penalties authorized by the code,
B. In all cases, a civil penalty is in addition to any other legal remedy available to redress
violations of the code.
C. This chapter does not apply to proceedings before and civil penalties imposed by the
Animal Control Board of Supervisors,
(Ord 2011-023 §2, 2011)
Chapter 22.20.016 Code Enforcement and Land Use
A. Except as described in (D) below, if any property is in violation of applicable land use
regulations, and/or the conditions of approval of any previous land use decisions or
buildin( ' i permits previously issued by the County, the County shall not:
I Approve any application for land use development
2. Make any other land use decision, including land divisions and/or properly
line adjustments;
3 Issue a building permit.
B As pail of the application process, the applicant shall certify;
1 That to the best of the applicant' s knowledge, the property in question,
including any prior development phases of the property, is currently in
compliance with both the Deschutes County Code and any prior land use
approvals for the development of the property; or
That the application is for the purpose of bringing the property into
compliance with the Deschutes County land use regulations and/or prior land
use approvals.
C. A violation means the property has been determined to not be in compliance either
through a prior decision by the County or other tribunal, or through the review
process of the Current application, or through an acknowledgement by the alleged
violator in a signed voluntary compliance agreement "VCA").
D. A permit or other approval, including building permit applications, may be authorized
if:
1. It results in the property coming into full compliance with all applicable
provisions of the federal, state, or local laws, and Deschutes County Code,
including sequencing of permits or other approvals as part of a voluntary
compliance agreement;
2. It is necessary to protect the public health or safety;
3. It is for work related to and within a valid easement over, on, or under the
affected property; or
4. It is for emergency repairs to make a structure habitable or a road or bridge to
bear traffic.
E. Public Health and Safety.
1. For the purposes of this section, public health and safety means the actions
authorized by the permit would cause abatement of conditions found to exist
on the property that endanger life, health, personal property, or safety of the
residents of the properly or the public.
2. Examples of that situation include, but are not limited to issuance of permits
to replace faulty electrical wiring, repair or install furnace equipment; roof
repairs; replace or repair compromised utility infrastructure for water, sewer,
fuel or power; and actions necessary to stop earth slope failure.
(Ord, 2015-019, §1, 2015)
"I'hank you for your consideration.
Nunzio Gould
12/12/2017
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Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of February 5, 2018
DATE: January 31, 2018
FROM: Matthew Martin, Community Development, 541-330-4620
TITLE OF AGENDA ITEM:
Planning Commission Recommendation - Flood Plain Zone Amendments
ATTENDANCE: Matthew Martin, Senior Planner
SUMMARY: The purpose of this work session is to summarize the Planning Commission's
review and revised recommendation on the Flood Plain zone amendments pertaining to
conservation easements, cluster developments, and planned developments. In addition, staff
is seeking direction from the Board of Commissioners on the next steps for these legislative
amendments.
Community
Development
may oen Department m
Plarnning Division fluAding Safety Division Environmental $Ws Division
P.O. Box 6005 117 NW Lafayette Avenue Bend,. Oregon 97748-6005
(541) 388-6575 Fax (541) 385-1764
hftp:/,,+ljvw.deschutes,org/cci
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Matthew Martin, AICP, Senior Planner
DATE: February 5, 2018
SUBJECT: County Land Use File Nos. 247-17-000140-ZC/141-PA/142-TA—Flood Plain Zone Amendments
Pertaining to Conservation Easements, Cluster Developments, and Planned Developments.
I. Summary
The purpose of this work session is to summarize the Planning Commission's review and revised recommendation
on the Flood Plain zone amendments. In addition, staff is seeking direction from the Board of Commissioners
(Board) on the next steps for these legislative amendments.
II. Background
On September 14, 2017, the Planning Commission provided the Board a recommendation on the Flood Plain zone
amendments relating to converting the Flood Plain zone to a Flood Plain combining (overlay) zone. Subsequently,
the Board conducted a public hearing on November 8, 2017, to receive testimony on the recommended
amendments. The Board then held a work session on November 27 and concluded the following three
amendments warranted further review by the Planning Commission:
• Conservation easements
• Cluster development
• Planned development
Based on this direction, the Planning Commission held a public hearing on December 14, 2017.1 On January 25,
the Planning Commission deliberated and provided a recommendation as summarized below.
1 The December 14, 2017, Deschutes County Planning Commission meeting materials can be found at:
litti)://descliutescountyor..iclm2.com Citizens Detail Meetin .asx?ID=1800
Quality Services Performed with Pride
III. Planning Commission Recommendation
The following is a summary of the original and revised recommendations made by the Planning Commission.
Conservation Easements:
• Original Recommendation: Expand conservation easement requirements for new land divisions on
property adjacent to rivers and streams and located in the Flood Plain combining zone to provide
additional protections and use restrictions in the sensitive riparian areas.
• Revised Recommendation: On a 3-2 vote (2 abstention), the Planning Commission supported replacing
the expanded conservation easement standards with a requirement to establish and maintain a riparian
area protection plan similar to the recommended requirement for Cluster and Planned Unit
Developments. The requirement of a riparian area protection plan would be in addition to the existing
10 -foot conservation easement requirement.
Cluster and Planned Unit Developments:
• Original Recommendation: Allow cluster and planned developments in areas with a Flood Plain combining
zone with additional protections and use restrictions in the sensitive riparian area.
• Revised Recommendation: On a 6-0 (1 abstention), the Planning Commission supported the original
recommendation.
111. BOARD OPTIONS
Staff provides the following options for the Board's consideration:
• Option 1 — Schedule deliberation at a regular business meeting and request an ordinance and updated
findings for consideration of first and second reading;
• Option 2 —Schedule a public hearing to receive additional oral and written testimony;
• Option 3 — Reopen the written record and receive additional written testimony; or
• Option 4 — Other as determined by the Board.
-2-