Loading...
2023-312-Order No. 2023-041 Recorded 9/28/2023REVIEWED LEGAL COUNSEL Recorded in Deschutes County CJ2023-312 Steve Dennison, County Clerk Commissioners' Journal 09/28/2023 4:57:20 PM cJ `��la II'II�II�I'III�II'I�II�IIIII �I� 2023-312 For Recording Stamp Onl BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying a Request for Reconsideration of Petition for * ORDER NO. 2023-041 Incorporation of the Proposed City of Mountain View WHEREAS, a petition for incorporation for a new City of Mountain View was duly filed pursuant to ORS Chapter 221; and WHEREAS, the Deschutes County Board of Commissioners conducted a required public hearing upon the merits of the proposed petition on September 20, 2023; and WHEREAS, the Board closed the oral and written record on September 20, 2023, deliberated on the proposal, and voted 3-0 to deny the proposal and adopt staffs findings; and WHEREAS, the Board received email correspondence on September 23, 2023 requesting reconsideration of the Board's vote to deny the proposal; and WHEREAS, the Deschutes County Code does not provide a procedure for the Board to reconsider its vote on the proposal; and WHEREAS, the Board voted 3-0 to approve Order No. 2023-037, an Order Denying a Petition for Incorporation of the Proposed City of Mountain View And Adopting Findings and Conclusions and Prescribing an Effective Date, at its duly scheduled public meeting on September 27, 2023; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The September 23, 2023 request for reconsideration of the Board's vote to deny the petition to incorporate the City of Mountain View is denied. Section 2. The Board's adoption of Order No. 2023-037 is affirmed. ORDER NO. [2023-041 ] DATED thisJ]! day of �- , 2023. ATTEST: Recording Secretary BOARD OF COUNTY COMMISSIONERS ANTHONY DEBONE, Chair 3 PATTI ADAIR, Vice Chair �t� ��� PHI CHL ANG, Commissioner ORDER NO. [2023-0411 BOARD OF COMMISSIONERS MEETING DATE: September 27, 2023 SUBJECT: Request for reconsideration of Mountain View petition to incorporate RECOMMENDED MOTION: Move approval of a Board Order denying the request to reconsider the petition to incorporate a new city of Mountain View. BACKGROUND AND POLICY IMPLICATIONS: Following the required public hearing on September 20, 2023 on the petition submitted to incorporate a new city of Mountain View, the Board voted to deny the petition. On September 22, a request for reconsideration was submitted. BUDGET IMPACTS: None ATTENDANCE: Will Groves, Planning Manager Stephanie Marshall, Assistant County Counsel 9/22/2023 Please Review Dear Commissioners, County Legal, and the Public, I am writing to you on behalf of the concerned citizens who share our vision for the incorporation of Mountain View. We have meticulously reviewed the proceedings of the recent hearing concerning this matter and respectfully request a reconsideration of the Board of County Commissioners' vote, permitting the petition to advance with a ballot measure. We note that recent votes, such as the one pertaining to destination resorts, have exhibited a similar- need for review. With profound respect for the established legal framework, we seek to direct your attention to the pertinent Oregon Revised Statutes (ORS) that govern incorporation. Below, we have thoughtfully presented these statutes, thoughtfully identifying the non -applicable ORS sections with a single -line strike -through for clarity. We respectfully recommend that your legal counsel undertakes a comprehensive examination of this essential ORS information. During the aforementioned hearing, we observed certain disparities that, in our perception, overlooked relevant state laws. In light of these concerns, we strongly recommend considering the precedent set by the case of Millersburg Dev. Corp. v. Mullen, 14 Or. App. 614 (1973)). We believe this case offers invaluable insights worthy of your attention. Additionally, we wish to draw your attention to the case of 1000 Friends of Oregon v. Wasco County, underscoring the necessity for a precise interpretation of the exemptions to Goal 14 in relation to Goals 3 and 4, as delineated in Goal 2 Part II. We firmly assert that upon meticulous reflection, you will find substance in our contention that procedural errors or violations during the initial vote present a legitimate rationale for reconsideration. Given the aforementioned precedent of Millersburg Dev. Corp. v. Mullen, we are compelled to convey our intention to pursue a Land Use Board of Appeals (LUBA) appeal if deemed necessary. Furthermore, we wish to express our apprehension regarding the possibility that the commissioners may have applied criteria not mandated by state ORS, particularly within the context of the commissioners' role in determining "benefited land." We emphasize that this concern is underscored in the LOC white paper, and as we continue our review, we find it prudent to advocate for a thorough evaluation of the petition utilizing a quasi-judicial process. Such a process ensures an impartial decision -making framework firmly grounded in objective evidence, rather than relying on subjective judgments. Moreover, we wish to assert that an inaccurate historical account regarding the incorporation of La Pine may have unintentionally impacted the decision -snaking process. In our pursuit of transparency and to dispel any potential misperceptions, we have included a meticulously detailed historical account below for your reference. It is noteworthy that the petition to incorporate La Pine consistently progressed to the ballot during each attempt, despite marked disparities between the stated income and expenses —an aspect that you may have alluded to in the context of Mountain View's petition. This pattern of advancement holds true for the majority of incorporation petitions, with the exceptions being the highlighted cases within this correspondence. In light of the aforementioned concerns and deliberations, we respectfully petition for a reconsideration of this matter, prior to its finalization with your signatures scheduled for next Wednesday. We acknowledge the potential necessity for a boundary reassessment to determine the lands that the Board deems as "would benefit." Moreover, we understand that it may be within your legal discretion to significantly alter the original boundaries in your revaluation. It should be noted that any significant changes to the boundaries made by the board do not have a legal effect on the original legal requirements set forth in applicable ORS. The original petition serves as the legal framework in regards to population, signatures, and other relevant legal requirements. We also duly recognize the recommendations put forth by LUBA in the case of 1000 Friends of Oregon v. Wasco County, intended to fulfill statewide planning requirements (with the exception of Goal 14 concerning Goals 3 & 4). In the spirit of collaboration and in recognition of our shared aspirations for enhancing the social and economic conditions and development of the area, we are ready to undertake a formal withdrawal of the petition, thereby refraining from pursuing an appeal to LUBA. This commitment is contingent upon the Board of County Commissioners formally initiating a special district process, one that adheres to state law and aligns with statewide planning goals. We propose that this initiative be considered for inclusion in the forthcoming 2040 comprehensive plan, which is currently undergoing formal adoption processes. This approach would contribute to the clarity of legality and procedure, furthering the facilitation of essential improvements. We assert that our request aligns with the principles of fairness, legality, and the pursuit of the community's best interests. We await your response with keen interest and remain open to further dialogues on this matter. We extend our gratitude for your time and consideration. Sincerely, Mountain View P.S. We would also like to bring to your attention that the letter sent by your legal counsel, Mr. Bell, indicated compliance with the requirements for a petition, thus strengthening our case and adding the relevant exemptions into the picture to address his statewide goals concern. Chapter 221 — Organization and Government of Cities 2021 EDITION ORGANIZATION AND GOVERNMENT OF CITIES CITIES INCORPORATION OF CITIES 221.010 Definitions for ORS 221.020 to 221.100. As used in ORS 221.020 to 221.100, unless the context requires otherwise: (1) "County court" means a county court or board of county commissioners. (2) "City," except in the term "incorporated city" in ORS 221.020, means a city incorporated under ORS 221.020 to 22 1. 100 or proposed to be incorporated. (3) "Population" means a city's population as shown by the latest annual estimate made pursuant to ORS 190.520. - ORS § 190.520 1) ponland State University shall: (a) Annually estimate the population as of July 1 of each city and county within the state and be later than December 15 of c-h year prepare a certificate of population showing the university's estimate of the population of each city antl counly within the state as of Jaly 1. The university's estimate may be based upon Statistical or other pertinent data or upon an actual count, The cerhhcate shall also indicate the,,soils of any enumeration of cities or a,,,.ad areas made after July 1. (b) Annually Ith"at, the number of persons between the ages of 4 and 20 wM1, res.ded in each counly as of October 25. The university sM1a11 .eddy s-1, estimate to the Superintendent of Public Instruction and 1. the executive officer of the administrative office of each county, as defined in ORS 328.001, by January 1 of each year. (.)Upon at,official request from acity,c,unty. Pat lost subdivision. public corporation or slate agency, cause to be conducted at the of the requesting party an actual count of the population of the area 5pecited in the request and prepare a ceddi.ate of population based upon such count. (d) Upon the incorporation of a city, cause to be conducted at the expense of the city an actual count of the population of the city. The university shall prepare a certificate of population based upon such count. If the election of oKcers of the newly Incorp,reled city Is held 40 tlays or more before the end of the calendar quarter, the cvrfificate shall be prepared before the end of the calendar quarter. If the elec[],, Is held less than 40 day. bef„e the end of th,..[and., quarter, the cedlficate shall be prepared before the end of the calentlar quarter next following the election. (2) All cerlh—(,, prepared under this section shall be bled with the Portland State University Population Research Canter, ORS 190.520 Amended by 2013 Ch. 768,§ 106b. off. 8114/2013, op. 71112014. Formerly 221.860, 1963 1.312 §1: 1971 c.294 §11: 1993 c.98 §12, 2003 c. 14, § 89, 2007 c. 71, § 62 ORS § 190,520 specifies that when a city inw,porates, Portland State Unive,afy is responsible to, conducting a population count for that —Ay incorporated city. The timing of when this population count and —ficate of population are prepared depends on when the election of oKcers for the newly incorporated oily is held: 1. If the election of officers of the newly incorporated city is held 40 tlays or more before the antl of the calendar quad,,, the cerl.ficate of population shall be prepared before the antl of that same c.f.bda,gaaq., 2. If the election is held less than 40 days before the antl of the calentlar quarter, the cedificate of population sM1a11 be prepared before the end of the calendar quarter immediately following the election. This provision ensures that accurate population data is available for newly incorporated cities is a timely manner (4) "Urbanized area" means territory within three miles of a city. [Amended by 1965 c.579 § 1; 1973 c.432 § 1; 1983 c.83 § 16] 221.020 Authority to incorporate. The people of an area, no part of which lies in an incorporated city and in which 150 persons reside, may incorporate a city by approving at an election called and held according to ORS 221.031 to 221.061 a proposition provided by those sections for incorporating the city. 221.031 Petition to incorporate; filing; form; contents; approval by boundary commission. (1) Before circulating a petition to incorporate unincorporated territory as a city, the petitioners shall file a petition for incorporation in a form prescribed by rule of the Secretary of State with: (a) The county clerk of the county in which the proposed city lies; or (b) If the proposed city lies in more than one county, the county clerk of the county in which the largest part of its territory lies. (2) The county clerk shall immediately date and time stamp the prospective petition and shall authorize the circulation of the petition when the economic feasibility statement required by ORS 221.035 is filed with the county clerk. The county clerk shall retain the prospective petition and economic feasibility statement and shall immediately send two copies of the prospective petition to the appropriate county court. (3)(a) A petition for incorporation filed with the county clerk under subsection (1) of this section shall designate the name and residence address of not more than three persons as chief petitioners, who shall be electors registered within the boundaries of the proposed city. (b) The petition shall contain the name of the proposed city. (c) The petition shall include a proposed permanent rate limit for operating taxes that would generate operating tax revenues sufficient to support an adequate level of municipal services. The tax rate limit shall be expressed in dollars per thousand dollars of assessed value. The tax rate limit shall be calculated for the latest tax year for which the assessed value of the proposed city is available. (d) There shall be attached to the cover sheet of the petition a map indicating the exterior boundaries of the proposed city. The map shall not exceed 14 inches by 17 inches in size and shall be used in lieu of a metes and bounds or legal description of the proposed city. . of this pfopesal. (4) Each sheet of signatures shall be attached to a full and correct copy of the petition for incorporation. Not more than 20 signatures on each sheet of the petition for incorporation shall be counted. The circulator shall certify on each signature sheet that the circulator witnessed the signing of the signature sheet by each individual whose signature appears on the signature sheet and that the circulator believes each individual is an elector registered in the county. the the petitions the boandaty commission mrist review and finally appiove the ptoplI rytiot to at - - _'ee.:ort. [1981 c.890 §3 (enacted in lieu of 221.030); 1983 c.83 §17; 1987 c.882 §12; 1989 c.92 §29; 1997 c.541 §351; 1999 c.318 §22; 2005 c.396 §1; 2007 c.669 §3; 2007 c.848 §21; 2010 c.41 §2] 199.476 When petition for major boundary change required; when economic feasibility statement required; effect of filing petition; effect of appeal. MEASIELMS . All IN AN, 7111 :: .. • . . ... . M1 .. - . lls=mow . . :: - -• - - - . W NOW, O, III .. ERIN 29, .•, •- D- .. (C) Lies outside the urban growth boundary of a city or a metropolitan service district; and (D) Is not incorporated as a city. ( « term. (a) The area proposed to be incorporated must also be located entirely within a designated rural unincorporated community and contiguous lands subject to an exception to statewide planning goals related to agricultural lands or forestlands. • .:. ::. .. :;. .: - - - ::: MINE :. .. ... .. ... WIN :. . ..MAP .. .. 611 221.035 Economic feasibility statement; contents. (1) If a person intends to file a petition for incorporation under ORS 221.031 (1), the person may file a notice of intent to prepare an economic feasibility statement with the county clerk of the county in which the proposed city lies or, should it lie in more than one county, with the county clerk of the county in which the largest part of its territory lies. (2) When a petition for incorporation is filed under ORS 221.031 (1), an economic feasibility statement concerning the proposed city described in the petition shall also be filed with the county clerk. The economic feasibility statement shall be prepared by the persons designated as the chief petitioners and shall form the basis for the proposed permanent rate limit for operating taxes required by ORS 221.031 (3). The economic feasibility statement shall contain: (a) A description of the services and functions to be performed or provided by the proposed city; (b) An analysis of the relationship between those services and functions and other existing or needed government services; and (c) Proposed first and third year budgets for the new city demonstrating its economic feasibility. [1989 c.92 §28; 1997 c.541 §352; 2001 c.557 §3; 2007 c.669 §4] .. - .. = ------- M MNMMI�___ M, :. 221.040 Hearing on petition to incorporate; order fixing date of election on approved petition. (1) When a petition for incorporation described in ORS 221.031 is signed by 20 percent or, in a county with a population over 300,000, by 10 percent, of the electors registered in the area proposed to be incorporated, the petition shall be filed with the county court of the county in which the proposed petition was filed under ORS 221.031. A petition shall not be accepted for filing unless all the signatures on the petition were obtained within the six-month period immediately following the date on which the petitions were filed under ORS 221.031. Upon the filing of the petition, the county court shall fix the time and place for the hearing of such petition and shall give notice thereof by publication once each week for two successive weeks in a newspaper published in the county where the petition is filed and of general circulation within the boundaries, and by posting the notice for the same period of time in three public places in the area proposed to be incorporated. The notice shall state the time and place of the hearing, describe the boundaries set forth in the petition and state the purpose of the petition. If any portion of the proposed incorporation of a city lies within another county or counties, then the notice shall be published in a newspaper of general circulation in each of the counties and in the same time and manner. (2) At the time and place fixed for the hearing, or at any time and place at which the hearing may be continued or postponed, any person interested may appear and present oral or written objections to the granting of the petition, the forming of the proposed incorporated city or the estimated rate of taxation set forth in the petition. The court may alter the boundaries as set forth in the petition to include all territory which may be benefited by being included within the boundaries of the proposed incorporated city, but shall not modify boundaries so as to exclude any land which would be benefited by the formation of the proposed city. No land shall be included in the proposed city which will not, in the judgment of the court, be benefited. If the court determines that any land has been improperly omitted from the proposed city and the owner has not appeared at the hearing, it shall continue the hearing and shall order notice given to the nonappearing owner requiring the owner to appear before it and show cause, if any the owner has, why the owner's land should not be included in the proposed city. The notice shall be given by publication and posting in the same manner as the original notice for hearing and for the same period. For the purposes of this subsection, "owner" means the legal owner of record except that if there is a vendee under a duly recorded contract, the vendee shall be deemed to be the owner. (3) Upon the final hearing of the petition, the court, if it approves the petition as originally presented or in an altered form, shall provide by order for the holding of an election relating to the incorporation of the proposed city. The order calling the election shall fix the date of the election on the date of the next primary election or general election that is not sooner than the 90th day after the date of the order. The order shall contain: (a) A description of the exterior boundaries of the proposed city as deternlined by the court. The description shall be a metes and bounds or legal description prepared by the county surveyor or county assessor. The description prepared under this paragraph shall accurately describe the exterior boundaries of the proposed city as indicated on the map filed under ORS 221.031 (3) unless those boundaries were altered by the county court, in which case the description shall accurately describe the boundaries as altered; (b) A provision requiring the county official in charge of elections to include on the ballot for the election a description of the boundaries of the proposed city using streets and other generally recognized features and a statement of the proposed permanent rate limit for operating taxes included in the petition for incorporation of the proposed city as required by ORS 221.031, which statement shall comply with the requirements of ORS 250.035; and (c) The date on which the election will be held in the proposed city. [Amended by 1953 c.593 §3; 1979 c.316 §9; 1981 c.890 §7; 1983 c.83 § 18; 1983 c.350 § 17; 1989 c.92 §30; 1995 c.712 §90; 1997 c.541 §353; 1999 c.21 §3; 2007 c.669 §5] 221.862 "Historic ghost town" defined. As used in ORS 221.862 to 221.872, "historic ghost town" means an incorporated city within this state that: (1) Is on land acquired under a United States patent; (2) Does not have a sufficient number of registered electors permanently residing within the city to fill all offices provided for under its charter; and (3) Is of historic interest. [1983 c.355 §1] City of La Pine Incoration Attemps Several attempts have been made to incorporate the La Pine area in 1985,1994, and 2000. The first attempt appeared on the 1985 ballot offering a proposal to incorporate the La Pine area into a city but was defeated by a vote of 65-33.44 Nine years later, another ballot measure was presented to the voters of Deschutes County with regards to the La Pine area development. In 1994, measure 9-5 Port of La Pine Formation states that a port district proposed for the purpose of developing a viable economic base, which would interact, but not duplicate or conflict, with other governments services now available. Establishment of a port district would allow local control in development of the La Pine industrial site, currently owned by Deschutes County. The area's large population base demands a variety of services. Approval of the measure would allow formation of a special district called the Port of La Pine. A tax base of $51,750 would be authorized. The proposed area was 100-square miles.45 The voters also defeated this measure. The La Pine area has taken the failed opportunities of the past and created the La Pine Community Action Team. This nonprofit organization of volunteer citizens decided to improve the community through a variety of activities. The La Pine Community Action Team (LCAT) appointed a twenty-fivemember incorporation committee to work on the feasibility of incorporation.46 La Pine has much to gain from incorporation. The most important benefit appears to be self-governing. Incorporation will enable La Pine to choose their own city council from within their community. Those in favor of incorporation feel this will get more attention to the issues that need taken care of. Some of the issues concerning the La Pine area are economic development, road maintenance, parks, cemetery, recreation code enforcement, law enforcement, and sewer and water. These issues make a lot of people in the area feel things would be handled easier with a local government. The La Pine Strategic Plan from April 1996 discusses the importance of preserving the local beauty and environment while maintaining its rural identity and quality of life as explores ideas into the outcome of La Pine's future. The need for the La Pine area to become a full -service community to accommodate the increasing number of residents and tourists is imperative to its future.47 In early 1998 the La Pine Community Action Team obtained a grant from the US Economic Development Administration to undertake a study of governance options for the La Pine area.48 This study was actually a follow-up to a strategic plan that had been previously developed that calls for a system of governance to be in place by the year 2000. The LCAT hired the firm of Cogan, Owens, Cogan from Portland, Oregon to undertake the task of a feasibility study of governance options. A workshop held on March 8, 1998 helped the LCAT to select three governance options for further study: incorporation of a large city, incorporation of a small city, and formation of a multipurpose county service district. Five major areas to be considered within either of these categories were the sewer, water, parks and recreation, planning and building code administration, and road repair and construction.49 The large city option, encompassing approximately 32-square mile area and about 7,500 people, was chosen by LCAT as the best incorporation option.50 The 2000 November ballot will present the voters with the opportunity to decide whether it is time for La Pine to become a city. Only 3,694 registered voters are within the proposed city limits and a simple majority is needed for incorporation to pass.51 (See Appendix 1) Currently, Deschutes County provides administrative services, such as assessment and taxation, as well as a number of general government services to the area of La Pine. These services include planning, zoning, building code enforcement, health and sanitation, road construction and maintenance, and law enforcement/criminal justice services. 52 If La Pine incorporates, these services will become the responsibility of the new city (see Appendix 2). The first years operating expenses are estimated to be $698,550, which excludes parks, water, fire protection and sewer services since they are already established.53 La Pine schools will remain part of the Bend -La Pine School District even if a new city is formed. The decision to establish a new school district is not part of the current proposal and would be addressed well after incorporation is achieved. The elementary and secondary schools located in the unincorporated area of La Pine are and will continue to be managed from the district offices located in Bend.54 The last two decades has seen a steady growth with regards to population and development in the La Pine area. Some of the concerns facing the incorporation goals with regards to becoming a city are water quality, substandard roads, wild land fire hazards, and higher taxes. Water quality is an issue since there is a high water table in the region and this affects development of business and residential areas. The vast amount of unimproved roads within the proposed boundary area will become a major project for the new city to tackle. It is estimated that $350,000 in state gas tax money would be available to the new city for road maintenance, however this would not cover the operating costs. The most unpredictable issue for a new city to deal with is wild land fire hazards.55 Incorporation means higher property taxes for citizens in order to support the new city. LCAT is considering a permanent tax rate of $1.50 per every $1000 of assessed value.56 Now the words "considering a permanent tax rate" does imply that nothing permanent has been considered. This appears to be the foremost concern for the residents of the La Pine area when considering incorporation. La Pine Chamber of Commerce. Phil P. Brogan, East of the Cascades (1964), 29. a Ibid., 14-19. ^Ibid., 13. s Raymond R. Hatton, interview by author, 30 April 2000, Phone. sIbid. Brogan, 47. s County Historical Timeline. s Hatton. Brogan, 84-85 Friends of La Pine Library, 9-11. Ibid., 18. 3 The Deschutes County Historical Society, "A History of the Deschutes County in Oregon' (1985). 92. Brogan 146. s The Deschutes County Historical Society. 92. 6 Hatton. University of Oregon, "Old Oregon', spring 1982.. s Brogan, 146, t The Deschutes County Historical Society, 93. 2 0 Friends of La Pine Library, 206. t Ibid., 209-210. z Ibid.. 93. Hatton. z QFriends of La Pine Library, 3. 2 Ibid., 140. z 6 Brogan, 146. Friends of La Pine Library, History of La Pine Pioneers (1983). 197. 2 6Ken Grantham, interview by author, 8 May 2000, Bend. 2 QFriends of La Pine Library, 199. 0 Grantham. Acre -fool: one acre of water, one foot deep. The Bulletin (Bend), 17 March 2000. 3 a The Deschutes County Historical Society, 93. Brogan, 146. 3 Hatton. 3 6 Raymond R. Hatton, High Country of Central Oregon (1980), 174. 3 1 The Bulletin 16 April 2000. a FIIEnJS of La P,ne Libro, 21a-219. 3 QRoger W. Olson, interview by author, 8 May 2000, Bend. 0 The Bulletin, 12 February 2000. Steve Dodd, interview by author, 31 March 2000, La Pine. z Darin H. Thurston, interview by author, 31 March 2000, La Pine. 3 The Bulletin 12 February 2000.