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2024-29-Minutes for Meeting January 10,2024 Recorded 1/29/2024v1ES o`'��{ BOARD OF -• COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County t� Steve Dennison, County Clerk CJ2424-29 Commissioners' Journal 01/29/2024 8:00:00 AM y uT F, S o, 111111111nimiamiiuu FOR RECORDING STAMP ONLY BOCC MEETING MINUTES 9:00 AM WEDNESDAY January 10, 2024 Barnes Sawyer Rooms Live Streamed Video Present were Commissioners Patti Adair, Tony DeBone and Phil Chang. Also present were County Administrator Nick Lelack; Assistant Legal Counsel Kim Riley; and BOCC Executive Assistant Brenda Fritsvold. This meeting was audio and video recorded and can be accessed at the Deschutes County Meeting Portal webpage www.deschutes.org/meetings. CALL TO ORDER: Chair Adair called the meeting to order at 9:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: • Les Anderson said short-term rentals degrade the quality of life in a community and make housing unaffordable for those who live here. Noting that some people who own one or more short-term rentals do not live in the area, he said this situation can render an area a de facto resort which he and his wife have emphatically rejected as a housing option. He resented portraying this issue as a simple neighbor versus neighbor dispute when in fact it is a county -wide problem. • James Lewis, general manager of the Sunriver HOA, said he would like to be involved in the public process if the Board proceeds with establishing county -wide regulations regarding short-term rentals. BOCC MEETING JANUARY 10, 2024 PAGE 1 OF 7 In response to Commissioner Chang, Lewis said Sunriver manages and mitigates the impacts of short-term rentals through utility accounts and other means. • Ashley Schreiber reiterated her opposition to the establishment of a shelter on Wilson Avenue for male justice -involved persons, saying this would put children at risk. Adding that the location is too close to schools and a park, she referred to the numerous signatures received in opposition to this proposal and asked that at the least, it be changed to a women's-only shelter. • Karla Law, a resident of Oregon City, communicated her experience with Free on the Outside, which operates various transitional facilities for felons and parolees. Law said after one such facility was established in Oregon City, families with children began to move away after discerning there were no rules as far as how the house was managed. She described various problems including illegal parking and raised the possibility that human trafficking was occurring. • Gail Webber spoke regarding short-term rentals (STRs) and asked that the Board consider requiring that persons who apply to have an STR confirm that they have received the necessary permission from their HOA, if and when applicable. CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda. 1. Approval of County Administrator signature of revised County Policy No. GA-9, Consumer Identity Theft Protection 2. Approval of Chair Signature of Document No. 2023-1094, a Notice of Intent to Award a contract for the Mike Maier Roof Replacement Project 3. Consideration of Board Signature on letters of appointment, reappointment and thanks for various committees and special road districts 4. Approval of minutes of the December 12, 2023 Mid Year Budget Update meeting 5. Approval of minutes of the BOCC December 20, 2023 meeting At Commissioner Chang's request, the appointment of Cameron Fischer to the Behavioral Health Advisory Board was removed for separate consideration. DEBONE: Move approval of the Consent Agenda as amended to remove the appointment of Cameron Fischer to the Behavioral Health Advisory Board for separate consideration CHANG: Second VOTE: CHANG: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried BOCC MEETING JANUARY 10, 2024 PAGE 2 OF 7 3.a. Consideration of letter reappointing Cameron Fischer to the Behavioral Health Advisory Board for a term through December 31, 2026 Commissioner Chang voluntarily recused himself from acting on this appointment due to his personal relationship with the appointee. DEBONE: Move to reappoint Cameron Fischer to the Behavioral Health Advisory Board for a term through December 31, 2026 ADAIR: Second VOTE: CHANG: (abstained) DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 2 - 1 - 0 ACTION ITEMS: 6. Oregon Health Authority BHRN grant amendment #177290-1 Holly Harris, Behavioral Health Director, explained that the amendment to this grant extends the term of the current agreement to June 30, 2025 and also allocates an additional $2,227,076 in Behavioral Health Resource Network (BHRN) funding for peer support, mentoring, and recovery services for adults, youth, and the adult intensive and unhoused populations. Noting that Deschutes County Health Services (DCHS) is one of several BHRN recipients in the county, Commissioner Adair asked if all recipients are required to report how many clients are being served with this funding. Harris explained that because the State contracted with each BHRN entity separately, the number of clients served is reported by each entity —those figures are then compiled and publicly shared via a dashboard maintained by the State. Adding that the population served is high acuity, Harris said Health Services most recently reported the use of BHRN funds to serve nearly 1,000 unique clients since December. The Board spoke to the value of using these funds to collaborate with the other partner organizations to develop and further recovery efforts, and asked that Health Services present an update on the use of BHRN funding every six months. CHANG: Move approval of Chair signature of Document No. 2023-1083, amending an Oregon Health Authority BHRN grant agreement BOCC MEETING JANUARY 10, 2024 PAGE 3 OF 7 DEBONE: Second VOTE: CHANG: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried 7. Short Term Rentals Business License Program Consideration Jen Patterson, Strategic Initiatives Manager, said at the Board's direction, staff has developed possible components of a business licensing program for short-term rentals for the Board's consideration. Also provided for the Board's information is a chart comparing how five Oregon counties —Tillamook, Clackamas, Hood River, Lincoln and Curry —process and regulate short-term rentals. County Administrator Nick Lelack said a key question is whether to proceed with a public meeting on this issue as previously suggested by the Board, and if so, with a less defined or more defined licensing proposal. Commissioner Chang referred to the large amount of public interest on this subject and said by shedding light on the experience of others, a public process could help define how to best approach short-term rentals. He added that, as offered, Sunriver could advise how to address impacts and manage these uses. Responding to Commissioner Adair, Michelle Assia, Management Analyst, said 3,287 STRs have been registered in Deschutes County. Of these, 2,440 are located within destination resorts. Commissioner DeBone said while many STRs were established post-COVID, flattening TRT revenues indicate that their numbers are likely at their height. Commissioner Chang said while the overall booking of STRs may be slowing, their use in desirable locations continues to impact neighboring properties. Commissioner Adair asked about the possible legal implications of establishing a licensing program. Dave Doyle, County Counsel, spoke to the potential exposure surrounding life safety issues and said both he and Community Development Director Peter Gutowsky believe that there is less liability exposure when simply registering STRs for the purpose of collecting Transient Revenue Tax (TRT) funds. Doyle explained that due to the likelihood that some registered STRs would not meet Code requirements with respect to fire egresses or working smoke alarms and carbon monoxide detectors, it would be better to have a comprehensive program to assure that innocent third parties are protected upon the issuance of a certificate from the County. Doyle acknowledged that addressing these issues BOCC MEETING JANUARY 10, 2024 PAGE 4 OF 7 would require on -site inspections, for which the County would have to assess a fee. Commissioner Chang said the County should also restrict persons who rent STRs from having outdoor recreational fires in the peak of wildfire season. Commissioner DeBone noted that the Sheriffs Office responds to noise complaints after 10 pm, fire protection is provided and groundwater protection is already overseen by the County. Commissioners Adair and Chang supported proceeding with a public process to consider adopting a licensing program for STRs. Responding to Patterson, Assistant Legal Counsel Kim Riley confirmed that this would involve a public hearing before the Board as a licensing program would be codified by ordinance. Following further discussion, it was the consensus of a majority of the Board to direct staff to convene a workgroup of stakeholders to consider the various factors that might go into a STR licensing program, and to develop a draft proposal for the Board to review in advance of a public hearing. 8. Review Draft Leadership Bend Presentation Deputy County Administrator Whitney Hale and Strategic Initiatives Manager Jen Patterson presented a draft presentation from the Board for the Leadership Bend session on January 16th. The Board made edits and assigned the presentation of certain topics to each Commissioner. OTHER ITEMS: • Deputy County Administrator Whitney Hale reviewed the agenda for the North County Campus grand opening on Friday, saying that media and community partners have been invited and tours will be offered after the formal presentation. • County Administrator Nick Lelack asked if more than one Commissioner will attend next Tuesday's community meeting on the subject of hunting on federal land. Commissioner DeBone said he had committed to coordinating a public meeting on this subject in response to concerns despite the issues occurring on federal lands which are outside the County's jurisdiction. The meeting will be held in Sunriver; representatives from the Forest Service, DCSO, and Oregon State Police will be in attendance. BOCC MEETING JANUARY 10, 2024 PAGE 5 OF 7 Commissioner Chang indicated he too will attend this meeting. • County Counsel Dave Doyle referenced comments received on the Transportation Systems Plan update after the record had closed, and asked if the Board wished to re -open the record to allow the consideration of these comments when the Board deliberates on this matter. Tarik Rawlings, Senior Transportation Planner, submitted a draft Board Order which would re -open the record to January 31 st, with Board deliberations scheduled for February 7t" CHANG: Move approval of Order No. 2024-003, temporarily re -opening the record for File Nos. 247-23-000507-PA, 508-TA related to the Deschutes County Transportation System Plan (TSP) Update DEBONE: Second VOTE: CHANG: Yes DEBONE: Yes ADAIR: Chair votes yes. Motion Carried • Commissioner Chang announced he will attend the National Association of Counties legislative conference in Washington DC in February; while there, he will meet with members of the County's Congressional delegation. • The Board agreed to not meet on Monday, February 5th as numerous AOC meetings have been scheduled for that day. • Commissioner DeBone reported on the Sunriver/La Pine economic development meeting on January 9t" and said the Deschutes County Historical Society's annual lunch will be on February 24th. • Commissioner Adair reported on three meetings last Thursday on safe parking, said the program in Redmond is having outstanding success, and described plans to give a presentation in March to share information on safe parking programs with churches in Bend which are not yet participating. • Commissioner Adair announced a Fair Board meeting and said the Board's annual dinner will be next Monday. • Commissioner Adair inquired about the status of a letter to Larry Barker. Deputy County Administrator Whitney Hale said this had been sent by Deputy County Administrator Erik Kropp. A break was announced at 10:54 am. The meeting reconvened at 10:58 am. EXECUTIVE SESSION: At 10:58 am the Board went into Executive Session under ORS 192.660 (2) (e) Real Property Negotiations. BOCC MEETING JANUARY 10, 2024 PAGE 6 OF 7 The Board exited Executive Session at 11:15 am to direct staff to proceed as directed. ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 11:15 am. DATED this 0- 1 day of MVO Commissioners. ATTEST: 1-20110/( RECORDING SECRETARY BOCC MEETING 2024 for the Deschutes County Board of PATTI ADAIR, CHAIR ANTHONY DEBONE, VICE CHAIR PHIL CHANG, COMMISSIONER JANUARY 10, 2024 PAGE 7 OF 7 w1'ES 0 BOARD OF COMMISSIONERS BOARD OF COUNTY COMMISSIONERS MEETING 9:00 AM, WEDNESDAY, JANUARY 10, 2024 Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - Bend (541) 388-6570 ( www.deschutes.org REVISED AGENDA MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and can be accessed and attended in person or remotely, with the exception of any executive session. Members of the public may view the meeting in real time via YouTube using this link: http://bit.ly/3mminzy. To attend the meeting virtually via Zoom, see below. Citizen Input: The public may comment on any topic that is not on the current agenda. Alternatively, comments may be submitted on any topic at any time by emailing citizeninput@deschutes.org or leaving a voice message at 541-385-1734. When in -person comment from the public is allowed at the meeting, public comment will also be allowed via computer, phone or other virtual means. Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer. • To join the meeting via Zoom from a computer, use this link: http://bit.ly/3h3oqdD. • To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the passcode 013510. • If joining by a browser, use the raise hand icon to indicate you would like to provide public comment, if and when allowed. If using a phone, press *9 to indicate you would like to speak and *6 to unmute yourself when you are called on. • When it is your turn to provide testimony, you will be promoted from an attendee to a panelist. You may experience a brief pause as your meeting status changes. Once you have joined as a panelist, you will be able to turn on your camera, if you would like to. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, call (541) 388-6572 or email brenda.fritsvold@deschutes.org. Time estimates: The times listed on agenda items are estimates only. Generally, items will be heard in sequential order and items, including public hearings, may be heard before or after their listed times. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT: Citizen Input may be provided as comment on any topic that is not on the agenda. Note: In addition to the option of providing in -person comments at the meeting, citizen input comments may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734. CONSENT AGENDA 1. Approval of County Administrator signature of revised County Policy No. GA-9, Consumer Identity Theft Protection 2. Approval of Chair Signature of Document No. 2023-1094, a Notice of Intent to Award a contract for the Mike Maier Roof Replacement Project 3. Consideration of Board Signature on letters of appointment, reappointment and thanks for various committees and special road districts 4. Approval of minutes of the December 12, 2023 Mid Year Budget Update meeting 5. Approval of minutes of the BOCC December 20, 2023 meeting ACTION ITEMS 6. 9:10 AM Oregon Health Authority BHRN grant amendment #177290-1 7. 9:30 AM Short Term Rentals Business License Program Consideration 8. 9:50 AM Review Draft Leadership Bend Presentation 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. January 10, 2024 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3 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. 9. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations ADJOURN January 10, 2024 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3 ? BOARD OF COMMISSIONERS' MEETING '—✓- REQUEST TO SPEAK Subject: K.. 5 Name L Address Phone #s In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy, to the Recording Secretary for the record. Date: Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS From: Les and Robin Adams <adams97330@msn.com> Sent: Friday, September 15, 2023 10:03 AM To: Patti Adair <Patti.Adair@deschutes.org>; Phil Chang <Phil.Chang@deschutes.org>; Tony DeBone <Tony,DeRnne@decrhi itec.nrg>, Subject: Short-term Rental Problem in Deschutes County [EXTERNAL EMAIL] Deschutes County Commissioners 1300 NW Wall Street Bend, OR 97703 emailed to: Patti.AdairPdeschutes.org Nhilkhan_ ciescnutes.org Tony.DeBonePdeschutes.org September 14, 2023 SUBJECT: SEPTEMBER 18. 2023 COMMISSION MEETING AGENDA ITEM REGARDING SHORTTERM RENTALS ,Dear Commissioners Adair, Chang, and DeBone: We live between Sunriver and Lapine, in a small neighborhood mostly bordered by forest. We and virtually all of our neighbors chose to live here because of the pleasant and quiet setting, and folks in our neighborhood work hard to maintain that setting. In recent years, we have too often lost that quiet and cooperation because of one short-term rentai owner who continues to be a nuisance and a threat. This absentee owner has three homes, one vacant buildable lot, and is believed to be trying to buy a third home, all within a few miles of our home. His properties and renters are known to violate lighting and noise ordinances, building codes, out -of -season fishing, river and riverbank protections, parking and plowing restrictions, and (most troubling) the fire regulations of Lapine Rural Fire District. When a neighbor politely asks his renters to keep their voices down when outside, or to extinguish an iiiegai fire during Extreme Fire Danger, that neighbor receives a lengthy letter from the owner or his attorney, threatening legal actions, "tortious claims'', financial liabilities, etc.. The house closest to us is across the river and two lots downstream from our home, approximately 200 yards away, but the renters' behaviors and especially the owner's belligerence is affecting neighbors on both sides of the river. The very first contact we had from this owner, after a courteous conversation with six couples whose yelling and profanity we had heard for more than 48 hours, was a threatening letter ordering Les not to return to the property, threatening prosecution for criminal trespass, calling him a bully, and describing the conversation as "harassing our guests and interfering with our business relationships." This is just a small sample of the dialogue we have had because we want you, our commissioners, to understand how this hostile owner has changed the character of two adjoining neighborhoods. There are now several families on both sides of the river who are working to organize to.protect our neighborhoods, especially from the illegal fires at this property. The Lapine Fire Chief personally called this owner in the summer of 2022 to advise him to start complying with fire restrictions. Little has changed in that regard. While this brief summary has details about one owner, our greater concern is the extent to which short-term rentals (STR) rlegrarie the quality of life ar;d even physically threaten "ur neignhh"rhnnwlc in rural fecrhutc c County. The lucrative prospect of owning'such homes' is obviously encouraging more of the problem as well as making more homes unaffordable to local working people. This particular problem owner makes a career of such investing from his office in Portland, while establishing separate LLCs for each house he owns here to disguise the real ownership. We strongly object to allowing one absentee owner to monopolize a neighborhood while forcing us to live in a de facto resort community. We refuse to live in a Sunriver-like setting of heavy vacation traffic and the often thoughtless behavior that brings. We ask that Deschutes County institute a policy of limited STR density and of consequences for irresponsible ownership. Bend has done so, Sisters has done so, many communities in Oregon have done so, all stemming from this same self-serving trend that now plagues rural Deschutes County and will only worsen. I beg you to act on this threat to our way of life and even to our homes and lives. Sincerely, Les Adams 55148 Forest Lane, 97707 541-602-6447 BOARD OF COMMISSIONERSMEETING REQUEST TO SPEAK Citizen Input or Testimony Phone #s` 1 E-mail address In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS uTES 0 BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 10, 2024 SUBJECT: Approval of County Administrator signature of revised County Policy No. GA-9, Consumer Identity Theft Protection RECOMMENDED MOTION: Move approval of County Administrator signature of revised County Policy No. GA-9, Consumer Identity Theft Protection. BACKGROUND AND POLICY IMPLICATIONS: County Policy GA-9, Consumer Identity Theft Protection was originally drafted in 2008 and has not been updated since it was originally approved. While completing the Personal Information Data Privacy Audit(#23/24-12), County Internal Auditor David Givans noted that the Oregon Consumer Information Protection Act was amended in 2019 and that County policy GA-9 should be updated to align policy language with those changes. The amendment changed the title of the state's data protection law to the "Oregon Consumer Information Protection Act" and also expanded the scope of the law, updating the types of information considered personal information and mandating vendor notification of breaches. The proposed policy changes to County Policy GA-9 align the County's policy language with the amendments made to the Oregon Consumer Identity Theft Protection Act. BUDGET IMPACTS: None. ATTENDANCE: Whitney Hale, Deputy County Administrator T Deschutes County Administrative Policy No. GA-9 DIP/ • Effective Date: May 5, 2008 Updated: XXX, X, 2024 CONSUMER INFORMATION PROTECTION STATEMENT OF POLICY It is the policy of Deschutes County to comply with the Oregon Consumer Information Protection Act. APPLICABILITY This policy applies to all Deschutes County personnel who have access to social security numbers and personal information. This policy also applies to contractors, subcontractors, agents, intermediaries and others conducting business with the County. POLICY AND PROCEDURE General Deschutes County will adhere to the Oregon Consumer Information Protection Act (ORS 646A.600 et seq.) as it currently exists and may from time to time be amended. The purpose of the act and this policy is to provide customers with protection from compromises of their personal information and to establish required steps in the case of a security breach. This policy supplements current departmental privacy and confidentiality practices. If an applicable federal or state law (such as the HIPAA Privacy Rule) requires greater protection for the security or privacy of personal information, departments shall follow the higher standard. Should an amendment to the Oregon Consumer Information Protection Act conflict with any provision of this policy, the provision(s) of the Act shall take precedence. Procedure The Use of Social Security Numbers • Departments shall not collect or use social security numbers unless there is an appropriate business reason for the use and there are no other practical alternatives. • Departments are prohibited from using social security numbers on an identification card or other card that is used to obtain service. • Departments shall not print social security numbers on cards or documents that are mailed to customers or publicly displayed unless the customer has requested information that requires a social security number. For example, a copy of a credit or employment application. • Social security numbers may be used if the use is required by law, such as tax forms employers are required to send to the IRS. • Departments are responsible for the proper disposal of social security numbers after there is no longer a business need. This may include shredding or rendering the material unreadable by some other means. • Public records law permits the County to withhold employees' social security number and other "personal information." The County will not make this information public. Policy No. GA-9, Consumer Information Protection The Use of Personal Information • "Personal information" for the purposes of this policy is defined in ORS 646A.602(12)(a) and is summarized as a customer's name in combination with one of the following: o Social Security number; o Driver license number or state identification card issued by the Department of Transportation; o Passport number or other United States issued identification number; or o Financial, credit or debit card number along with a security or access code or password that would allow someone else to access the person's financialaccount. o Data of an individual's physical characteristics that are used to authenticate one's identity (e.g. fingerprint) o Health insurance policy number with another unique identifier o Medical and/or mental health history o User names and passwords (or similar means to access an individual's accounts) • Departments are required to establish administrative, technical, and physical safeguards to protect personal information. o Administrative safeguards include assigning an employee to coordinate the security program, identifying internal and external risks, and training employees. o Technical safeguards include assessing risks in network and software design; assessing risk in information processing, transmission, and storage; and testing and monitoring controls. o Physical safeguards include locking the material in file cabinets or storage systems; detecting, preventing, and responding to intrusions; and protecting against unauthorized access to the information. • Departments are responsible for the proper disposal of personal information after it is no longer needed for business purposes. This may include shredding or rendering the material unreadable by some other means. • Credit card receipts shall not include the full credit card number of the customer. Safeguarding Paper and Electronic Documents Employees shall take the following actions to safeguard paper and electronic personal information: • Store paper documents in locked cabinets and storage systems, or in locked rooms or locked storage areas. • If a computer has access to protected information, the computer shall be password protected and include a password protected lock screen. • Ensure that observable confidential or individually identifiable information is shielded from unauthorized disclosure on computer screens and paper documents. Breach of Security • A breach of security is defined as an unauthorized acquisition of "personal information" a person maintains or possesses (as defined in this policy). • Department Heads are required to immediately report breaches of security (including breaches that occur by contracted venders who maintain, store, manage, process or otherwise access personal information) to the County Administrator upon discovery. • An incident response team consisting of representatives of Human Resources, County Administration, County Legal Counsel, and the Information Technology Department will investigate reported breaches of security and provide a written report to the County Administrator assessing the situation and recommending action steps and appropriate notifications to reporting agencies, if necessary. • If a breach of security occurs, the County has a duty (under the Oregon Consumer Information Protection Act) to notify the individual(s) as soon as possible in one of the following manners: written notification, electronic (if this is the customary means of Policy No. GA-9, Consumer Information Protection communication with this customer), or telephone provided that direct contact with the affected customer is made. If notification is provided by telephone, it should be accompanied by written documentation that is maintained by the department/office. Examples include computerized data Policy No. GA-9, Consumer Information Protection that includes a customer's name along with their social security number or credit card number along with the associated security code. All notifications will be coordinated by the County Administrator. • If the breach of security is unauthorized acquisition of paper -based personal information, the County will notify customers in the same manner as a breach of security related to computerized data. • The notice shall include at a minimum the required information outlined in ORS 646A.604(5). Identity Theft Language in Contracts • All County contracts should include the following sentence: "Contractor and subcontractors shall comply with The Oregon Consumer Infoitnation Protection Act." Approved by the Deschutes County Board of Commissioners XXX Nick Lelack County Administrator Policy No. GA-9, Consumer Information Protection Deschutes County Administrative Policy No. GA-9 Effective Date: May 5, 2008 Updated: XXX, X, 2024 CONSUMER INFORMATION PROTECTION STATEMENT OF POLICY It is the policy of Deschutes County to comply with the Oregon Consumer Information Protection Act. APPLICABILITY This policy applies to all Deschutes County personnel who have access to social security numbers and personal information. This policy also applies to contractors, subcontractors, agents, intermediaries and others conducting business with the County. POLICY AND PROCEDURE General Deschutes County will adhere to the Oregon Consumer Information Protection Act (ORS 646A.600 et seq.) as it currently exists and may from time to time be amended. The purpose of the act and this policy is to provide customers with protection from compromises of their personal information and to establish required steps in the case of a security breach. This policy supplements current departmental privacy and confidentiality practices. If an applicable federal or state law (such as the HIPAA Privacy Rule) requires greater protection for the security or privacy of personal information, departments shall follow the higher standard. Should an amendment to the Oregon Consumer Information Protection Act conflict with any provision of this policy, the provision(s) of the Act shall take precedence. Procedure The Use of Social Security Numbers • Departments shall not collect or use social security numbers unless there is an appropriate business reason for the use and there are no other practical alternatives. • Departments are prohibited from using social security numbers on an Policy No. GA-9, Consumer Information Protection identification card or other card that is used to obtain service. • Departments shall not print social security numbers on cards or documents that are mailed to customers or publicly displayed unless the customer has requested information that requires a social security number. For example, a copy of a credit or employment application. • Social security numbers may be used if the use is required by law, such as tax forms employers are required to send to the IRS. • Departments are responsible for the proper disposal of social security numbers after there is no longer a business need. This may include shredding or rendering the material unreadable by some other means. Public records law permits the County to withhold employees' social security number and other "personal information." The County will not make this information public_ The Use of Personal Information • "Personal information" for the purposes of this policy is defined in ORS 646A.602(12)(a) and is summarized as a customer's name in combination with one of the following: o Social Security number; o Driver license number or state identification card issued by the Department of Transportation; o Passport number or other United States issued identification number; or o Financial, credit or debit card number along with a security or access code or password that would allow someone else to access the person's financial account. o Data of an individual's physical characteristics that are used to authenticate one's identity (e.g. fingerprint) o Health insurance policy number with another unique identifier o Medical and/or mental health history o User names and passwords (or similar means to access an individual's accounts) • Departments are required to establish administrative, technical, and physical safeguards to protect personal information. o Administrative safeguards include assigning an employee to coordinate the security program, identifying internal and external risks, and trainingemployees. o Technical safeguards include assessing risks in network and software design; assessing risk in information processing, transmission, and storage; and testing and monitoring controls. o Physical safeguards include locking the material in file cabinets or storage systems; detecting, preventing, and responding to intrusions; and protecting against unauthorized access to the information. Policy No. GA-9, Consumer Information Protection • Departments are responsible for the proper disposal of personal information after it is no longer needed for business purposes. This may include shredding or rendering the material unreadable by some other means. • Credit card receipts shall not include the full credit card number of the customer. Safeguarding Paper and Electronic Documents Employees shall take the following actions to safeguard paper and electronic personal information: • Store paper documents in locked cabinets and storage systems, or in locked rooms or locked storage areas. • If a computer has access to protected information, the computer shall be password protected and include a password protected lock screen. • Ensure that observable confidential or individually identifiable information is shielded from unauthorized disclosure on computer screens and paper documents. Breach of Security • A breach of security is defined as an unauthorized acquisition of "personal information" a person maintains or possesses (as defined in this policy). • Department Heads are required to immediately report breaches of security (including breaches that occur by contracted venders who maintain, store, manage, process or otherwise access personal information) to the County Administrator upon discovery. • An incident response team consisting of representatives of Human Resources, County Administration, County Legal Counsel, and the Information Technology Department will investigate reported breaches of security and provide a written report to the County Administrator assessing the situation and recommending action steps and appropriate notifications to reporting agencies, if necessary. If a breach of security occurs, the County has a duty (under the Oregon Consumer Information Protection Act) to notify the individual(s) as soon as possible in one of the following manners: written notification, electronic (if this is the customary means of communication with this customer), or telephone provided that direct contact with the affected customer is made. If notification is provided by telephone, it should be accompanied by written documentation that is maintained by the department/office. Examples include computerized data that includes a customer's name along with their social security number or credit card number along with the associated security code. All notifications will be coordinated by the County Administrator. • If the breach of security is unauthorized acquisition of paper -based personal information, the County will notify customers in the same manner as a breach Policy No. GA-9, Consumer Information Protection of security related to computerized data. • The notice shall include at a minimum the required information outlined in ORS 646A.604(5). Identity Theft Language in Contracts • All County contracts should include the following sentence: "Contractor and subcontractors shall comply with The Oregon Consumer Information Protection Act." Approved by the Deschutes County Board of Commissioners XXX Nick Lelack County Administrator Policy No. GA-9, Consumer Information Protection 0TES BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 10, 2024 SUBJECT: Consideration of Board Signature on letters of appointment, reappointment and thanks for various committees and special road districts RECOMMENDED MOTION: Move approval of Board Signature on the following: • Letters reappointing David Bishop and Elizabeth Richie to the Deschutes County Fair Board; • Letters reappointing Julie Craig, Erin Kilcullen, Christina Veverka and Joseph Mauti for service on the Noxious Weed Advisory Board; • Letter appointing Melissa Brewster for service on the Public Health Advisory Board; • Letter reappointing Cameron Fischer for service on the Behavioral Health Advisory Board; • Letter reappointing Don Selsor for service on the Spring River Special Road District Board; • Letter reappointing John Brooks for service on the Cascade View Estates Special Road District Board; • Letter reappointing Danielle Hebener for service on the Howell's Hilltop Acres Special Road District Board; • Letter reappointing Kathleen Stockton for service on the Sun Mountain Ranches Special Road District Board; • Letter reappointing Peter Cecil for service on the River Bend Estates Special Road District Board; • Letter reappointing Heather Leeder for service on the Vandevert Acres Special Road District Board and • Letter thanking Sheila Kelley for service on the Panoramic Access Special Road District Board BACKGROUND AND POLICY IMPLICATIONS: None BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 10, 2024 SUBJECT: Short Term Rentals Business License Program Consideration BACKGROUND AND POLICY IMPLICATIONS: On November 13, 2023, staff from Administration, Community Development, Finance, and Legal presented a Short Term Rentals Business License briefing document to the Board. The Board subsequently directed staff to draft a Business License concept and potentially explore options to receive public input. The requested draft Business License concept is now available for the Board's consideration along with a matrix of short term rental programs from five counties in Oregon. Staff seeks direction from the BOCC on whether to proceed with the Business License concept and if so in what manner. BUDGET IMPACTS: No budget impacts currently. ATTENDANCE: Jen Patterson, Strategic Initiatives Manager Robet Tintle, Finance Director Peter Gutowsky, CDD Director Stephanie Marshall, Legal Counsel A Administration Short Term Rentals - Business License Concepts for Discussion Potential purpose: The potential purpose of a Short Term Rental (STR) Licensing program could be a way to provide peace, health, safety, and livability for residents of, and visitors to, Deschutes County. A STR licensing program could protect public health and safety while also protecting resident housing stock. Additionally, a STR program could also promote good neighbors while protecting the County. A STR program could implement a compliance process with properties while collecting Transient Lodging Tax (TLT) on STRs. Potential components of a Business License for consideration: 1. Wastewater Systems and Occupancy Capacity a. STRs with a septic system could be required to submit a septic permit number to verify the STR is within code compliance. Additionally, a cap for STR occupants could ensure the septic system is not overtaxed. A recommended occupancy capacity could be two people per bedroom plus two additional occupants (ex. a four -bedroom house would have an occupancy cap of 10 people). i. The County Onsite Wastewater Manager advises that most septic permits could be verified in the office and not require an onsite inspection. 2. Fire Life Safety Standards Checklist a. Incorporate additional fire life safety measures. 3. 24/7 Property Manager Availability a. Require Property Manager (PM) contact information to be posted at STRs to allow neighbors and others to contact PM when issues arise during STRs stays; b. Requiring PM to address calls in a timely and adequate manner; and c. Consider a standard to have license suspended or revoked when there are repeated violations or non-compliance. 4. Short Term Rentals comply with permittable use and zoning districts a. STRs are permittable within zoning districts that allow single-family or multi -family residences as outright permitted uses. 5. Fire Pits/Rings Restrictions 6. Garbage Services a. Establish a system such as: garbage and recyclables shall be legally removed at least once per week during any week, or portion thereof, in which the short-term rental is occupied. All outdoor receptacles shall be covered and secured from wind in a fly tight container. Containers shall not block access to the property or dwelling unit. 7. TLT Certificate of Authorization a. TLT authorization number shall be listed on STR advertisements. 8. Neighbor Notification a. The applicant of a short-term rental could provide, in writing, to adjacent neighbors within a specified distance, a local telephone number, name, and address of a PM who will accept and handle complaints immediately relating to tenant activities. 9. Proof of Insurance a. Owners provide certification of insurance with STR application. 10. Quiet Hours a. Proposed quiet hour times could run from 10:00 p.m. until 7:00 a.m. the next day. Curry County Land Use Permit x x x x x x x x x x x 2 Years Yes Lincoln County Business License x x x x x x x x x >' T 1 c c o z Hood River County Permit x x x x x x x x x x x x 2-Years o z Clackamas County Registration x x x x x x x x x Went into effect on 12/7/2023 - Board will review program in two years. No Tillamook County Operator License x x x x x x x x x x x a m m c c Q Yes Type of License/Permit Floor Plan (Bedroom Identification) Site Plan Map 24/7 Property Management Contact Neighbor Notification On -Site Parking Spaces Additional Fire, Life and Safety Requirements Proof of Liability Insurance Confirmation of Garbage Service TLT Certificate of Authority Hold Harmless Agreement Septic System Permit Occupancy Max (2 people per bedroom plus 2-4 additional people) Permittable Use and Zoning Confirmation Fire Pits/Rings Restrictions Quiet Hours/Noise Control Residency Requirement (owner must be a resident of the County) Renewals co 2 1) a) c co L BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 10, 2024 SUBJECT: Review Draft Leadership Bend Presentation BACKGROUND AND POLICY IMPLICATIONS: The Commissioners have been invited to present to Leadership Bend on January 16, 2024, from 1 - 2:30 p.m. Staff will review the draft Leadership Bend presentation with the BOCC and make edits per the BOCC's direction. BUDGET IMPACTS: None ATTENDANCE: Jen Patterson, Strategic Initiatives Manager LOCATION 710 NW Wall Street Downtown Bend MAILING ADDRESS PO Box 431 Bend, OR 97709 PHONE (541) 388-5505 Relay Users Dial 7-1-1 FAX (541) 385-6676 WEB bendoregon.gov MAYOR Melanie Kebler MAYOR PRO TEM Megan Perkins CITY COUNCILORS Anthony Broadman Barb Campbell Ariel Mendez Megan Norris Mike Riley CITY MANAGER Eric King CITY OF BEND December 27, 2023 Deschutes County Attn: Community Development, Nicole Mardell, Senior Planner PO Box 6005 Bend, OR 97708-6005 Sent to: Nicole.Mardell@deschutes.org RE: Support of County Transportation Plan Update including the Vision for Future Trails Dear Deschutes County Board of Commissioners and Deschutes County Planning Commission, The City of Bend sends this letter of support for the County Transportation Plan update as initially drafted, including the Chapter 5 vision for developing future bicycle routes to connect cities, towns, and recreational areas across the County. The language as initially written aligns with the City's adopted 2020 Bend Transportation Plan emphasizing safe travel options, including additional safe walking and biking routes. Future County bicycle routes will become more important over the next twenty years as both our agencies work to serve our growing transportation demand. Key reasons we encourage keeping the original language include: ➢ Community and legislative support for more separated bike facilities: o Since the Bend Transportation Plan was adopted in 2020, the community has been asking for even more off street, separated paths to provide safe routes for people of all ages that allows access to modes of transportation other than driving. o The State of Oregon has crafted and adopted rules that require additional planning and investment in walking and biking, consistent with the policy direction in Bend's Comprehensive Plan, and other City policy documents. The City will be working over the next decade to implement additional trails, multi -use paths, and other low stress networks to encourage alternative transportation use. o As you are seeing now with the County TSP update, during the City TSP update many City residents submitted letters of support for regional trail access and connectivity. There are many pathways built, planned, or in development that could Zink to future regional trails such as: o A shared use path along Highway 97 toward Redmond and US 20 toward Sisters; ThP i ava RtittP Trail rnnnerting future Reuel Park and Rarreatinn District (BPRD) trails and City paths to Sunriver and towards La Pine. o A path along the US 20 corridor east of Bend identified in the ODOT US 20 Refinement Plan; o Various shared use path connections in the Bend Transportation Plan along arterial streets, collector streets, and BPRD trails that extend into the County; and o A Deschutes River pedestrian and bicycle bridge study, for additional connectivity in south Bend. Trails nrnvirde affnrrlahle trancnnrtatinn nntinnc fnr walking. hiking ac wall ac rerreatinnal opportunities. Bicycle routes help reduce congestion by offering safe options for alternative transportation options. The County's Transportation System Plan is a 20-year guiding document, and we encourage the adoption including the vicinn for hicycle routes, Sincerely, City of Bend f)avirl Ahhas, PF Director Transportation & Mobility Department DocuSign Envelope ID: 2C76E514-448F-44C2-BE14-6ED4A56655BF BMPO a BARB CAMPBELL, CHAIR City of Bend Council PHIL CHANG, VICE -CHAIR Deschutes County Commission ARIEL MENDEZ City of Bend Council MIKE RILEY City of Bend Council ROBERT TOWNSEND ODOT Region 4 TYLER DEKE, AICP Manager ANDREA NAPOLI, AICP Senior Planner KELLI KENNEDY Program Coordinator BEND METROPOLITAN PLANNING ORGANIZATION 709 NW Wall Street, Suite 102, Bend, OR 97703 www.bendmpo.org January 2, 2024 Deschutes County PO Box 6005 Attn: BoCC Bend, OR 97708-6005 Re: Deschutes County TSP update, Bend to Lava Butte trail Dear Board of Commissioners, I am writing regarding inclusion of the Bend to Lava Butte trail project in the Deschutes County Transportation System Plan (TSP). The Bend to Lava Butte multi -use trail was first identified in the 2015 Deschutes National Forest Alternative Transportation Feasibility Study. Development of that study included extensive participation from agency stakeholders and the public. In 2016, ODOT received a Federal Lands Access Program (FLAP) grant to evaluate alignment alternatives and engage stakeholders and the public in the selection of a preferred alignment. The outcomes of this effort were the US 97 Bend to Lava Butte Refinement Planning Study (2017) and the US 97 Multi - Use Path Technical Memorandum (2020). The Study evaluated three alignment alternatives and summarized opportunities and challenges associated with each. The follow-up Technical Memorandum evaluated three refined alignment alternatives and recommended an east -west hybrid alternative as the preferred alignment. This alignment begins on the east side of US 97 at Knott Road, continues south to the High Desert Museum, then crosses to the west side of US 97 via an undercrossing and continues south to the Lava Lands Visitor Center. Other than a few minor easements at the High Desert Museum, the eastern portion of the preferred alignment will be entirely within the existing ODOT right-of-way. The western portion of the preferred alignment will be on Deschutes National Forest land. The preferred alignment would result in fewer impacts to private property, provide a better experience for trail users, minimize safety issues associated with the BNSF railroad, and integrate more seamlessly with walking and biking infrastructure along and near Knott Road. In 2018, ODOT applied for and received additional FLAP funding to design and construct the preferred alternative. ODOT has used the funds to complete conceptual design (-30% design) for the preferred alignment. DocuSign Envelope ID: 2C76E514-448F-44C2-BE14-6ED4A56655BF We encourage the Board to adopt the TSP as originally drafted with the hybrid east -west trail alignment. This alignment reflects years of stakeholder and public engagement, previous planning efforts, and ongoing engineering efforts. There is a long-standing regional interest to build trail connections from Bend to Sunriver and the La Pine area. This trail segment will complete those connections. Thank you again for providing an opportunity to provide comment on this important project. Please contact me if you have any questions. Sincerely, ,-DocuSigned by: j�GtA lyCAIAylgUk 8C27A72AFF8E4E5... Barb Campbell Bend Metropolitan Planning Organization Page 2 41k. • 1 • 1 POB 8000 PMB 8283 Sisters, Oregon 97759 Mr. Tank Rawlings 11 /2- 6-2643 This letter is submitted as a contra opinion to correspondence by Ms Sue Wickizer relative to the construction of a new bike trail. In my opinion the construction of such a trail between Black Butte Ranch and Sisters comes close to a existential threat to the very concept of a home owners association. One, which ,encourages public and private usage and promotes community support. We do not support the expenditure of private or public money or effort, in planning, developing or financing this concept. This effort is plain and simple the exacerbation of a Iassi faire attitude. The idea is a literal breeding capsule for the manifestation of unintended consequences. Our backyard becomes a distant neighbors playground at our expense. The overall evaluation would have to be negative. ISSUES THAT WOULD OR COULD AFFECT THE ADOPTION AND BUILDING A NEW BIKE PATH SURVEY The surveys mentioned by Ms. Wickizer are dated. Any opinion drawn on the basis of Information gathered from a dated . out of touch environment, must be updated, survey language revisited, participation authenticated, participants verified , in short, those surveys are invalid. The totality of any survey must be relevant to existing and not camouflaged thought. Many of those negative evaluations may not even live in the area any longer. To base a decision on information that is dated and of major concern to multiple parties , Including online surveys, require some oversight and planning by profession poll administrators. All the pros and cons should be made available to everyone eligible before launching a opinion poll of this magnitude EMINENT DOMAIN I am not an attorney, however, it appears to me, that the concept of EMINENT DOMAIN , meaning a government intervention or action to acquire or change usage could be initiated.) kick in. There are four distinct elements of EMIENT DOMAIN that are involved, the transfer from private to public land appears to engage those statutes. This could affect the county tax revenues. It would appear that the proposal path would ,exit, enter, cross land owned by Sisters ,Forest Service and Black Butte Ranch boundaries . I am not an attorney however, it is my opinion that the concepts of EMINENT DOMAIN could apply when the process means exiting or entering private land ;from public ,or vice versa. ( the gathering or launch area for bicyclists,To access either public or private land from the other) Certainly, issue of ownership , care 2nd maintenance . imnact on local residents Nays into the planning as a loading and adequate unloading platform. attached is a short article relative to EMINENT DOMAIN which addresses many of these concerns. I am not aware of the exact proposal , but it appears to me that the concept of EMINENT DOMAIN , ( meaning a government intervention is involved) would prevail if needed or contested, WILDFIRE DANGER. We need to introspectively, with focused attention examine the current major threat to the entire area, not just Black Butte. It is our belief that a clear and present danger to the ranch's very existence is the continued growth of the wild fire threatS caused by repeated drought and public disregard for untoward acts. Ms Wickizer alludes in her opinion that our complaints are " pie in the sky " no, they are not as evidenced by the Paradise Fire, The Gates fire and even out of state fires , similar to those on Maui in Hawaii. The now surfacing scenario includes ignoring , incompetence,, is requiring substantial funds, further firefighter attention. contemplative planning, which could have mitigated much of the resultant damage. The unintended consequences and corresponding increase in costs and required rehabilitation only serves to intensify our, not quite addressed , need for attention. In my opinion the creation of a new bike path only increased the threat that consumed areas of Hawaii and Gates , Oregon . The resolution and control of that threat being years away. INSURANCE To support this concern, is supported by ,At least( 2 )insurance companies cancelling insurance coverage, and others increasing costs or curtailing any coverage in some areas of Central Oregon This action by the insurance Industry is certainly indicative of insurance needs and the corresponding dormant risks.The increase in exposure to not only the above, but many of The concerning items listed below would be exacerbated by increased bike, auto and foot traffic. If we cannot obtain adequate insurance , property values and county tax revenues will accordingly plummet Investigations results have demonstrated an attitude or incomplete review. NEED There is absolutely no need for additional bike paths. There is over 500 miles of bike trails within in the boundaries of Deschutes County. I have attached a list of objections to the building of the path that was composed by other third parties concerned about creation of a new bike trail that live onthe ranch. T EPASSING 17) I CZ' a t++,--, ID ,•--A rs,tr, ; c•-• v-‘ r1,+ I% r, rev.% initiating safeguards to access the ranch. This action nessitated by blatant trespassing , non residents and non guests. The tsunami of proposed new bikers, would only serve to elevate the trespassing on private property or in ,simple terms, a trespassing issue. Why are we condoning random destructive and divisive traffic infiltrating the legal bounderies for which we are paying a monthly stipend to live in peace ATTACHED IS CUMULATIVE LIST FROM OF OTHER CONSIDERATIONS THAT COULD IMPACT ON THE PROPOSED PATHWAY. By SUBJECT ONLY, BUT ALL AFFECT, FINANCES, LIVABILITY, PRIVACY, SANITATION AND OTHER COMMUNITY ACTIVITIES. SANITATION IMPACT CLEAN UP GROUPING FACILITIES MEDICAL ACCESS ( ELDERLY NEEDS) IDENTIFY BETTER ALTERNATIVES FIRE ACCESS USAGE POLICE ACCESS DRUG USAGE LEGAL NEEDS HOMELESS INTRUSION WAT E R SAFETY -LIGHTING LAND PRESERVATION LOST ANIMALS OVERSIGHT LOST CHILDREN BUDGETARY USAGE BY AGE NO LIGHTING - FUNDING INSURED MANAGEMENT - TRAFFIC CONFLICTS PARKING The aforementioned categories represent subjective usage. All have a impact on the above items requiring, funds, people, and cognitive oversight At present, a possible area of conflict, liability exposure, safety issues which could be distracting to local residents.,likely costing the HOA. I do not feel that the existence of a short trail represents an enhancement of the Black Butte experience for anybody and certainly a major headache and additional costs for existing residents. We also should mention the potential ranch liability impact of increased traffic and usage as well as a portion of that liability which would surely fall to the other participants in trail administration. Eminent Domain - The Basic Law 1 Stimmel Law 12/4/23, 8:24 PM (/) Law 01! 'N ul STIMN4 L., STIM MEL L ROESER Home (/en) / articles (/en/articles) / eminent domain basic law Eminent Domain - The Basic Law Protecting property rights of individuals was a central part of the Founding Father's goals when creating the United States government and the courts have routinely ruled that due process of law is required before a person can be deprived of either life, liberty or property. Nevertheless, the State can take your property without your consent under the doctrine of Eminent Domain. Eminent domain is the power possessed by governments to take over the private property of a person without his/her consent. The government can only acquire private lands if it is reasonably shown that the property is to be used for public purpose only. Federal, state, and local governments can seize people's homes under eminent domain laws as long as the property owner is compensated at fair market value. This article shall discuss the basic law of eminent domain both in terms of what is required to constitute a taking and what methods are available to contest the taking and receive fair compensation. The Basic Law: When a property is acquired by the government, it is called "taking." Pursuant to the Fifth Amendment of the United States Constitution, government can acquire real and personal belongings of a citizen for public purpose and the person should be provided just compensation. See Dowling v. City of Barberton, 2008 U.S. Dist. LEXIS 73162 (N.D. Ohio Sept. 24, 2008). The Fifth Amendment's public use clause is applicable to state governments through the Fourteenth Amendment Clause. The taking of property for private purpose is thus unconstitutional. Eminent domain laws are created by the federal and state legislatures. Courts have the power to judicially review the acquisition of land. However, if there are no arbitrary and unreasonable decisions, courts cannot interfere in the decisions of the legislature. McCabe Petroleum Corp. v. Easement & Right -Of -Way Across Twp. 12 N., 2004 MT 73 (Mont. 2004). Legislatures can also delegate the power of eminent domain to agencies for public purposes. Property is said to be acquired when government encroaches on the land of a person for public purposes. When a government denies natural use of a person's property, this amounts to an informal taking of the property. However, the taking should be for a public use and the land owner should be paid a just compensation. Property can be regulated by governments. But if the regulations imposed are so substantial that the person looses his/her natural rights in the property, it is considered a taking and the government is bound to pay compensation. Mich. 5. Cent. Power Agency v. Constellation Energy Commodities Group, Inc., 466 F. Supp. 2d 912 (W.D. Mich. 2006). Eminent domain can only be exercised following the strict rules prescribed in the statutes. The power must be exercised in a constitutional manner. The procedure for acquisition of land should be comply with the rules provided in the statutes by the legislatures. Sanitary & Improvement Dist. No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917 (Neb. 1998). Statutes conferring and circumscribing the power of eminent domain must be strictly construed. A condemnor is a party to whom the power of eminent domain is delegated. A condemnor is given broad discretionary power which can be applied only in good faith according to due process of law. Benton v. Ga. Marble Co., 258 Ga. 58 (Ga. 1988). Share this article! (/#email) (/#google_gma i I) (/#ya hoo_ma i l) (/#co py_I i n k) (https://www.addto law.com%2Fen%2Fa law&title=Eminent% Related Articles Commercial Leases and Subleases (/en/articles/commercial- leases-and-subleases) Common California Real Estate Terms (/en/articles/common- california-real-estate-terms) Lease Back Arrangements With Your Own Business (/en/articles/lease-back- arrangements-you r-own- business) Prescriptive Easements - Obtaining Rights In Land By Use (/en/articles/prescriptive- easements-obtaining-rights- land-use) Real Estate Ownership and Transactions in the United States (/en/articles/real-estate- ownershi p-and-transactions- united-states) The Basics of Real Estate Title Deeds (/en/articles/basics-real- estate-title-deeds) Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8:24 PM The advantage of the government exercising the power of eminent domain need not be for the benefit of a large number of people. The use can be for a community of people or residents of an area alone. However, the benefit should not be for one person alone. Legislatures are provided wide discretionary powers to decide whether an action is for public advantage. City of Smithville v. St. Luke's Northland Hosp. Corp., 972 S.W.2d 416 (Mo. Ct. App. 1998). Legislatures can exempt certain properties from acquisition in a reasonable manner. Mt. Vernon- Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30 (U.S. 1916). A hospital that is mainly working for charitable purposes may be exempted from land acquisition. This is because a property already devoted to a public use usually cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use. State ex rel. Maryland Heights Fire Protection Dist. v. Campbell, 736 S.W.2d 383 (Mo. 1987). Pursuant to 42 USCS § 4601, the federal government can provide facilities for a person who needs help to relocate. The Model Eminent Domain Code provides that assistance for relocation must be administered uniformly and in a fair and equitable manner to displaced persons. This law applies to displacements caused by both public and private condemnors. Requirements Imposed by the United States Constitution Due Process Clause: The eminent domain power is subjected to certain constitutional limits such as: • The property acquired must be taken for a "public use;" • The state must pay "just compensation" in exchange for the property; • No person must be deprived of his/her property without due process of law. The taking clause of the Fifth Amendment to the U.S. constitution will not prohibit the governmental taking of private property. However, it places a condition on the exercise of that power and the purpose of the taking clause is to prevent the government from forcing some people alone to bear public burdens which must be borne by the public as a whole. Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835 (9th Cir. Wash. 2001). Similarly, the takings clause expressly requires compensation where government takes private property for public use. Note that it does not bar government from interfering with property rights but has to provide a just compensation. The public use requirement is generally viewed as a restriction on the government's eminent domain power. The government cannot use that power unless its use is for the benefit of the public. In order to bring a claim under the takings clause, a claimant must identify a property interest recognizable under the Fifth Amendment. It is to be noted that the Fifth Amendment forbids the federal government from taking property for public use without just compensation and this limitation is extended to the states through the Fourteenth Amendment. However, every destruction or injury to property by government action is not considered as a taking in the constitutional sense. Similarly, diminution of property value alone will not establish a taking. Hawkeye Commodity Promotions, Inc. v. Miller, 432 F. Supp. 2d 822 (N.D. Iowa 2006). Property owners can enjoy broader protection under a state constitution than under the Federal Constitution but not less protection. State v. Wojtyna, 70 Wn. App. 689 (Wash. Ct. App. 1993). If a political subdivision with the power of eminent domain damages property for a public use, the property owner can seek damages in an action for tort, in a statutory action for inverse condemnation, or in a constitutional action for inverse condemnation. Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in realty rather than by the government condemnor, Lone Star Industries, Inc. v. Secretary of Kansas Dep't of Transp., 234 Kan. 121 (Kan. 1983). In addition to the constitutional requirements of public use and just compensation, the due process clause protects a person from the adoption of any form of procedure in eminent domain cases which deprives him/ her of a reasonable opportunity to be heard and to present any objections and claims. Therefore, in order to succeed in establishing a constitutional violation of the takings clause, claimants must demonstrate that: (/articles) Find Articles in our Online Library (/articles) Find helpful legal articles & summaries on key areas of the law! • They have a property interest protected by the Fifth Amendment, • They were deprived of that interest by the government for public use, Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8:24 PM What is a "Taking?" A taking occurs when the government encroaches upon or occupies private land for its own proposed use. Even a minimal permanent physical occupation of real property requires compensation under the takings clause. For instance, governmental regulation of property can sometimes constitute a taking. Litva v. Vill. of Richmond, 172 Ohio App. 3d 349 (Ohio Ct. App., Jefferson County 2007). Generally, takings claims arise two ways: • Physical taking; • Regulatory taking. A physical taking occurs when the government encroaches upon private land for its own proposed use. A regulatory taking can arise although the government actions do not encroach upon or occupy the property but still affect and limit its use to such an extent that a taking occurs. Regulatory takings are based on the principle that while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking. Ganci v. New York City Transit Auth., 420 F. Supp. 2d 190 (S.D.N.Y. 2005). The takings clause is generally held to apply to two types of governmental action: • Taking of property by the government's eminent domain power; • Taking of property by inverse condemnation. The power of eminent domain is an inherent sovereign power. The eminent domain power allows the government to take private property for the benefit of the public after paying just compensation. Inverse condemnation occurs when government regulation condemns some or all of the use of the property, diminishing the value to its owners to such an extent that it is as if the government had condemned the property. Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F. Supp. 2d 206 (D.R.I. 2002). Inverse condemnation leads to the de facto taking by eminent domain through the state's power to regulate, whereas a taking by the eminent domain power is an explicit use of the sovereign power. However, not every acquisition of a private property interest by a state constitutes a taking such as the taxing power, the police power, or the power to purchase property. The state may acquire private property interests in a manner that does not constitute a taking. Moreover, when the government acquires such an interest through a power other than its taking power, just compensation is not constitutionally require. Waiste v. State, 10 P.3d 1141 (Alaska 2000). Thus, policing power or zoning powers are normally not considered a taking though the effect on the value of the property may be extreme. Judicial Review of Taking: The mode and manner of the exercise of the power of eminent domain is exclusively vested in the judgment and discretion of the legislature. Utilities, Inc. v. Washington Suburban Sanitary Comm'n, 362 Md. 37 (Md. 2000). The scrutiny by the courts in appropriation cases is limited in scope but it remains as a critical constitutional component. City of Norwood v. Homey, 110 Ohio St. 3d 353 (Ohio 2006). The court however will not substitute its judgment for a legislature's judgment as to what constitutes a public use unless the use is palpably without reason. However, there is a role for courts to play, although a narrow one, in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. Deference to the legislature's public use determination is required until it is shown to involve an impossibility. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (U.S. 1984). The courts have normally held that any departure from this judicial restraint can result in courts deciding on what is a governmental function and invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields. The U.S. Supreme Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use unless the use be palpably without reasonable foundation. Richardson v. City & County of Honolulu, 124 F.3d 1150 (9th Cir. Haw. 1997). Eminent Domain - The Basic Law 1 Stimmel Law 12/4/23, 8:24 PM The power and the obligation of eminent domain plays a critical role in constitutional governance and courts are obligated to carefully monitor its exercise. The exercise of the power of eminent domain is not entirely beyond judicial scrutiny. Under a statute relating to eminent domain, a condemnation defendant may seek judicial review regarding the legality of the proceedings and whether the condemning entity has the legal authority and right to condemn. It was observed in Twp. of W. Orange v. 769 Assocs., 172 N.J. 564 (N.J. 2002) that a reviewing court has no power to upset a municipality's decision to use its eminent domain power in the absence of an affirmative showing of fraud, bad faith, or manifest abuse. It was also observed that courts must defer to legislative bodies on questions implicating the state's sovereign authority. Although it is narrow in scope, judicial review is not meaningless in eminent domain cases. Defining the parameters of the power of eminent domain is regarded as a judicial function. It was stated in City of Norwood v. Horney, 110 Ohio St. 3d 353 (Ohio 2006) that when the state takes the private property of an individual for transfer to another individual rather than for use by the state itself, then judicial review of the taking is considered to be important. Compensation for Taking of Land: Often referred to as the Just Compensation Clause, the final clause of the Fifth Amendment provides that private property should not be taken for public use without just compensation. Tahoe - Sierra Pres. Council v. Tahoe Reg'/ Planning Agency, 535 U.S. 302 (U.S. 2002). This law applies to the states as well as the federal government. Accordingly, the Fifth Amendment of the U.S constitution protects private property rights. A government can take private property for a public use only upon payment of just compensation. In an acquisition, there is a contractual obligation to pay compensation or damages. To exercise the power of eminent domain, a government must prove the four elements set forth in the Fifth Amendment. They are: • Acquisition is of private property; • Property must be acquired; • Acquisition must be for public use; and • Just compensation must be awarded. Just compensation is such which puts the injured party in a good condition as s/he would have been, if the injury had not been inflicted. It includes the value of the land, or the amount to which the value of the property from which it is taken has depreciated. Generally, the property owner is not entitled to compensation before the government takes possession of his/her land. The constitution does not require that compensation be actually paid in advance of the occupancy of the land. However, the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his/her occupancy is disturbed. Stringer v. United States, 471 F.2d 381 (5th Cir. Miss. 1973). In Delaware, L. & W. R. Co. v. Morristown, 276 U.S. 182 (U.S. 1928), the court held that the taking of private property for public use is deemed to be against the common right and authority to do so must be clearly expressed. Property subject to acquisition includes not only real property but also personal property. Generally, intangible properties like right to business damages do not constitute property in the constitutional sense. Texaco, Inc. v. Department of Transp., 537 So. 2d 92 (Fla. 1989). Easements are property interests subject to the just compensation. Bormann v. Bd. of Supervisors, 584 N.W.2d 309 (Iowa 1998). Also, patent rights are property protected by the constitutional guarantees. When patent rights are appropriated for public use, adequate compensation must be given. Loss of visibility is compensable where the diminished visibility results from changes on the property taken from the landowner. However, loss of visibility is not compensable where it occurs due to changes on the property of another. Utah DOT v. lvers, 2005 UT App 519, P23 (Utah Ct. App. 2005). Similarly, a property occupied by a railroad or other public-service corporation is private property and cannot be taken or entered upon and applied to a different public use except upon payment of compensation. Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8:24 PM A riparian right cannot be arbitrarily or capriciously destroyed or impaired, except in accordance with law. If necessary, a riparian right can be taken for the public good upon due compensation. The acquisition by the public of an easement in land for the construction of a public highway gives no right and easement. When the use is granted by proper authority and does not constitute an additional burden, the owner cannot claim compensation. Lay v. State Rural Electrification Authority, 182 S.C. 32 (S.C. 1936). The United States exercising power of eminent domain can acquire property in two ways: • the government can enter into physical possession of property without authority of a court order; or • the government can institute condemnation proceedings. In physical seizure, the property owner is provided a remedy under the Tucker Act to recover just compensation. In condemnation proceedings, compensation is given through court. When a government opts for the physical seizure method, acquisition occurs at the moment of seizure, even though title does not pass until compensation is actually paid. From the beginning of acquisition proceedings, the government's possession is lawful and an owner's title represents only his/her claim for compensation. In an eminent domain proceeding, an interlocutory judgment fixing the compensation payable to a condemnee can be awarded. Such an order has the characteristics of a money judgment in an ordinary civil action. Just compensation is the full indemnity for the loss or damage sustained by the owner of property taken under the power of eminent domain. Just compensation includes a recovery for all damages, past, present, and prospective. The damages analysis is not limited to the time of the alleged taking. When property is taken under eminent domain, the measure of just compensation is the fair market value of the property to be ascertained as of the date of taking. It is determined by assessing a price a willing buyer and a willing seller would agree to. Fair market value is that value assigned by parties freely negotiating under normal market conditions based on all surrounding circumstances at the time of the taking. State by Com'r of Transp. v. Hope Road Associates, 266 N.J. Super. 633 (App.Div. 1993). When a delay in payment occurs, something more than damages is to be awarded. This additional element of compensation is reasonable interest. Rights for Which Compensation Should Be Paid: In deciding just compensation, a property includes every sort of interest which an owner possesses in the property. Just compensation is such which puts the injured party in as good condition as s/he would have been, if the injury had not been inflicted. It includes the value of the land or the amount which the value of the property depreciated from partial taking. Generally, the property owner is not entitled to compensation before the government takes possession of his land. The constitution does not require that compensation be actually paid in advance of the occupancy of the land. However, the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed. Stringer v. United States, 471 F.2d 381 (5th Cir. Miss. 1973). In eminent domain proceedings, property includes personal property. Generally intangible properties, like the right to business damages do not constitute property in the constitutional sense[iv]. Easements are constitutionally recognizable property interests ie., easements are property interests subject to just compensation. Additionally, patent rights are property protected by the constitutional guarantees. When patent rights are appropriated for public use, adequate compensation must be given. Generally, property already devoted to a public use cannot be taken for another public use. The reason is that such an acquisition will totally destroy or interfere with the former use. However, when the intention of the legislature is evidenced in express terms or by necessary implication, the government can acquire such property. Palm Bay v. General Development Utilities, Inc., 201 So. 2d 912, 915 (Fla. Dist. Ct. App. 4th Dist. 1967). Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8:24 PM Moreover, a property occupied by a railroad or other public-service corporation is private property and cannot be taken or entered upon and applied to a different public use except upon payment of compensation. A property owner whose property abuts a lake, river, or stream possesses certain riparian rights associated with ownership of such a property. Riparian rights are special rights pertaining to the use of water in a waterway adjoining the owner's property. Moreover, a riparian owner has certain riparian rights incident to the ownership of real estate bordering upon a navigable stream. In eminent domain, a riparian right is a property right and is valuable. A riparian right cannot be arbitrarily or capriciously destroyed or impaired, except in accordance with law. If necessary, a riparian right can be taken for the public good upon due compensation. Thiesen v. Gulf F. & A. R. Co., 75 Fla. 28, 77 (Fla. 1917). An abutting owner's rights to light, air, view, ingress and egress are property rights and cannot be interfered with or appropriated without just compensation. An owner of property abutting a public highway possesses the right to use of the highway in common with other members of the public. S/he has a private right or easement for the purpose of ingress and egress to and from his/her property. This right cannot be taken away or destroyed or substantially impaired without compensation. The acquisition by the public of an easement in land for the construction of a public highway gives no right and easement. Methods of Payment: In an eminent domain proceeding, an interlocutory judgment fixing the compensation payable to a condemnee can be awarded. Such an order has the characteristics of a money judgment in an ordinary civil action. Additionally, the order bears interest from date of entry. Bellflower City School Dist. v. Skaggs, 52 Cal. 2d 278 (Cal. 1959). Due process does not require condemnation of land in advance of its occupation by the condemning authority. Moreover, in a condemnation proceedings, an owner must be given opportunity to be heard and to offer evidence as to the value of the land taken. Barker v. Lannert, 310 Ky. 843, 850 (Ky. 1949). The Taking Act (40 U.S.C. § 258a.) requires the United States to deposit with the court just compensation for the land taken. However, the estimated compensation is not evidence of the value of the property taken. Moreover, the estimate deposited by the government does not establish a minimum award to which the landowner is entitled. United States v. 75.13 Acres of Land, 693 F.2d 813, 817 (8th Cir. Iowa 1982); 40 USCS § 258a. Substituted condemnation occurs when property is condemned for exchange with another public utility and the property is used for a public purpose. This is considered a valid exercise of the condemnor's power of eminent domain. Moreover, substituted compensation can be used to minimize damages to be paid to condemnees. Department of Transp. v. Livaditis, 129 Ga. App. 358, 364 (Ga. Ct. App. 1973). A plaintiff can abandon eminent domain proceedings at any time after filing the complaint. An appropriating agency can obtain the right to take and use the property during condemnation proceedings upon payment of the amount of the award assessed and upon making sufficient security. The quick take provision enables a condemnor to take possession of property before there has been a full condemnation proceeding ending in judgment. By opting for a quick take possession, the United States government can obtain title by filing a declaration of taking and paying the estimated compensation for the property to the court for the use of the property owner. 40 USCS § 3114. Measure of Compensation: The Fifth Amendment of the U.S constitution protects private property rights. A government can take private property for a public use upon payment of just compensation. In acquisition, there is a contractual obligation to pay compensation or damages. To exercise the power of eminent domain, a government must prove four elements set forth in the Fifth Amendment. They are: • Acquisition is of private property; • Property must be acquired; • Acquisition must be for public use; and Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8:24 PM • Just compensation must be awarded. Property subject to acquisition includes not only real property but also personal property. Public uses for which the government exercises its power of eminent domain include such things as schools, roads, libraries, police stations and fire stations. Just compensation is the full indemnity for the loss or damage sustained by the owner of property taken under the power of eminent domain. The measure used is fair market value at the time of acquisition. When property is taken under eminent domain, the measure of just compensation is the fair market value of the property to be ascertained as of the date of taking. Just compensation includes a recovery for all damages, past, present, and prospective. The damages analysis is not limited to the time of the alleged taking. It is important to note that the burden of proving damage is upon the owners of the land taken. United States v. Smith, 355 F.2d 807, 809 (5th Cir. Ala. 1966). The measure of damages is the fair market value of the property as of the date of taking. It is determined by assessing what a willing buyer and a willing seller would agree to negotiate. Fair market value is that value assigned by parties freely negotiating under normal market conditions based on all surrounding circumstances at the time of the taking. However, the landowner is to be compensated for the fair market value of his property upon the basis of the property's highest and best use. United States v. 1291.83 Acres of Land, 411 F.2d 1081, 1084 (6th Cir. Ky. 1969). Just compensation includes all elements of value that are inherent in the property. However, it does not exceed market value fairly determined. The sum required to be paid to the owner does not depend upon the uses to which s/he has devoted his/her land. The sum is to be arrived at on just consideration of all the uses for which the land is suitable. The highest and most profitable use for which the property is used and needed or likely to be needed in the reasonably near future is to be considered. United States v. 1291.83 Acres of Land, 411 F.2d 1081 (6th Cir. Ky. 1969). Where land is appropriated for a temporary use, the measure of compensation is what the property is worth for the time when it is taken. The measure of damages for a temporary taking of property for a public purpose is the rental value of such property during the period when it is taken. United States v. 883.89 Acres of Land, 314 F. Supp. 238, 242 (W.D. Ark. 1970). Where only part of property is taken, best measure of compensation is a combination of the fair market value of the part taken, together with the decrease in the fair market value of the untaken part measured immediately before and immediately after the taking. Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 188 (Ark. Ct. App. 1985). When the property value is reduced because of alterations after acquisition and before the condemnation action is heard, the condemnee is entitled to a higher value as of the time of the taking. However, a condemnee is not entitled to the higher value when the land value increases after the taking and before the condemnation action. State Highway Comm'r v. Jones, 27 N.J. 257 (N.J. 1958). Factors to be considered in determining the highest and best use of property are: • market demand; • proximity to areas already developed in a compatible manner with the intended use; • economic development in the area; • specific plans of businesses and individuals; • actions already taken to develop land for that use; • scarcity of land available for that use; • negotiations with buyers interested in property taken for the particular use; • absence of offers to buy property made by buyers who have put it to the use urged; and • the use to which the property is being put at the time of the taking. See Exxon Pipeline Co. v. Hill, 788 So. 2d 1154 (La. May 15, 2001). When a delay in payment occurs, something more than fair market value is to be awarded. This additional element of compensation is termed reasonable interest. Just compensation in the constitutional sense is fair market value at the time of taking plus interest from that date to the date of payment. United States v. 278.59 Acres of Land, 364 F.2d 63, 65 (5th Cir. Fla. 1966). California Law on Eminent Domain: Eminent Domain - The Basic Law 1 Stimmel Law 12/4/23, 8:24 PM California eminent domain laws can be found in Title 7 of Code of Civil Procedure. Eminent domain is the power of local, state or federal government agencies to take private property for public use so long as the government pays just compensation. Pursuant to Cal Code Civ Proc § 1230.030 private property shall be taken by eminent domain only when there is a public use. Examples of "public uses" for which the government might exercise its power of eminent domain include such things as schools, roads, libraries, police stations, fire stations and similar public uses. Pursuant to Cal Code Civ Proc § 1245.220 the government agency must adopt a formal resolution, also known as resolution of necessity to acquire the property before commencing an eminent domain proceeding in court. Cal Code Civ Proc § 1245.230. The resolution of necessity must be adopted at a public hearing. It must be adopted before the condemning agency can commence an eminent domain action in court. In order to adopt a resolution of necessity, the government agency must find (1) that the project for which the property is to be acquired is necessary; (2) that the property is necessary for the public project; (3) that the project is located in such a manner as to offer the greatest public benefit with the least private detriment; and (4) that an offer to purchase the property has been made. Pursuant to Cal Gov Code § 7267, government agencies shall obtain an appraisal and make an offer to the owner of record of real property to be acquired before the agency may commence court proceedings. The offer generally must be in an amount no less than the appraisal approved by the agency. A property owner is not required to accept the condemning agency's offer. Instead, the property owner may make a counter-offer, or may assert a higher value for his or her property once the eminent domain action is filed in court. The court directs the government agency to deposit the probable amount of just compensation. Thereafter, appraisers determine the fair market value of the subject property. The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by the seller, who would be willing to sell under no particular or urgent necessity of doing so, nor obliged to sell, and a buyer, being ready, willing and able to buy under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. If settlement cannot be reached between the owner and the government agency, trial regarding the eminent domain action takes place before a jury who determines fair market value of the subject property. When the judgment is entered, the government pays compensation within 30 days following entry of judgment and the title to subject property is transferred to the government by the court. Pursuant to Cal Code Civ Proc § 1255.410, the condemning agency may ask the court for possession of the property even before judgment has been entered in the eminent domain proceeding. The court may only do so, however, if the condemning agency has first deposited into the County or State Treasury the amount which it determines as the probable compensation to be paid for the property. Once the condemning agency deposits the amount of probable compensation, the property owner or tenant may apply to the court to withdraw that portion of the deposit which represents the owner's probable amount of compensation. Inverse Condemnation: Inverse condemnation is a remedy available to a property owner who is not fairly compensated for the property taken from him/her by a government for a public use. Usually a property of a land owner is taken by a condemnation proceeding, in which government is the plaintiff and the property owner is the defendant. When a governmental action causes injury to a property owner and s/he is not properly compensated, s/he can sue the government. In such cases, the status of the parties is reversed and hence, the action is termed inverse condemnation. Usually, inverse condemnation occurs in three situations: • Physical seizure of land; • Reduction in value of the property making it not useful for any purpose, by a regulation of the government; and • When the government unreasonably insists to convey the property as a condition for issuance of a permit. Eminen Domain - The Basic Law 1 Stimmel Law 12/4/23, 8:24 PM The taking of the property by a government can be physical or regulatory. A few examples of physical taking are: seizure of land, retention of possession of land after the lapse of lease period, and deprivation of access to land. Buchanan v. United states, 1981 U.S. Ct. CI. LEXIS 1538 (Ct. Cl. Dec. 10, 1981). To allow an action on inverse condemnation, a governmental authority needs to occupy or damage the subject property. Willis v. Univ. of N. Ala., 826 So. 2d 118, 121 (Ala. 2002). When a government regulation regarding a property is so stringent that it makes the property not usable for any purpose and thus deprives an owner of any benefits of owning that property, inverse condemnation arises. If the purpose of the regulation and its economic effect on the property amounts to a taking of the property, the owner is entitled to compensation. SouthviewAssoc., Ltd. v. Bongartz, 980 F.2d 84, 93 (2d Cir. Vt. 1992). Note that a government regulation amounts to a taking or damaging of property, when thereis denial of building or demolition permits, burdensome conditions placed on development of the property, and the property is subjected to overly restrictive zoning regulations. In order to test whether a regulation has amounted to a taking of a property, there are three factors to look at. This test is known as the Penn Central test. The three factors considered are: • the nature of the government regulation, • the impact of the regulation on the property and • the extent of interference on the land owner's economic expectations of the property. An ordinance of zoning does not represent a taking of property for public use merely because it diminishes the value of the regulated property. Governmental regulation amounts to a taking for public use only when it takes away from the owner all or substantially all reasonable uses of the property. Wild Rice River Estates, Inc. v. City of Fargo, 2005 ND 193 (N.D. 2005). A mere reduction in the market value of the property cannot be the basis for a claim of inverse condemnation. Braunagel v. City of Devils Lake, 2001 ND 118 (N.D. 2001). The evaluation of a regulation has to be done considering its impact on the land owner's whole parcel of land. Appolo Fuels, Inc. v. United States, 2002 U.S. Claims LEXIS 384 (Fed. Cl. Dec. 18, 2002). Remedies Generally Available: Generally, the rule is that private property shall not be taken or damaged without paying just compensation to the land owner. However, an aggrieved land owner can file an action directly against the state or the authority vested with condemnation power. The general rule of getting consent for moving a suit against a state is not required where taking of the property has been done by a state against constitutional mandate. A landowner is entitled to file suit for implementing his/her constitutional right to compensation against an illegal taking of the property. McLaughlin v. Town of Front Royal, 1994 U.S. App. LEXIS 6454 (4th Cir. Va. Apr. 5, 1994). As discussed above, an owner can file a suit when a regulation has gone to the extent of denying all productive and economical use of land. When a government entity having the power of condemnation damages property for a public use, the property owner may file for damages either as a statutory action or as a constitutional action for inverse condemnation. The remedy of inverse condemnation is the manner in which a landowner may recover just compensation for a taking of the owner's property when condemnation proceedings have not been instituted. Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418 (Iowa 1996). When a regulation of a government with regard to property is so onerous that it makes a property not usable for any constructive purposes, it will amount to a taking of property and the owner will be entitled to compensation. SouthviewAssoc., Ltd. v. Bongartz, 980 F.2d 84, 93 (2d Cir. Vt. 1992). If the statutory remedy is not sufficient to compensate the damage to the land owner, the land owner may move for a common law action. A landowner has the burden to prove that the statutory remedy is inadequate. Only after exhausting the statutory remedy or administrative remedy can a land owner move for an action claiming inadequate compensation under common law. Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686 (Iowa 2005). A statutory remedy does not prevent adopting common law remedies against a non -sovereign entity vested with condemnation power unless otherwise provided in a statute. Due process requires that there must be a hearing at some stage of the condemnation proceeding. When a property owner is given the right to appear in defense of his/her rights in a proceeding, the state will also be given a right to be heard on its contention that there is no taking of the lands of a Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8:24 PM property owner. State by Peterson v. Anderson, 220 Minn. 139 (Minn. 1945). The doctrine of separation of powers and due process law demands that judicial review of administrative decisions be available in condemnation proceedings. A landowner may move for an injunction in an illegal taking of property. It is a proper way to challenge the unlawful taking of property. Illinois Cities Water Co, v. Mt. Vernon, 11 III. 2d 547 (III. 1957). An action for ejectment is considered proper in certain cases. A land should be taken by following proper condemnation proceedings and mandatory constitutional provisions. A land owner may recover land by moving for ejectment proceedings. Note, however, that where a partial taking of a property is made lawfully for the beneficial use of the public, an action for trespass cannot be brought by the land owner. When an issue relating to condemnation arises, a court may grant temporary or mandatory injunction given the circumstances to maintain status quo. Even though an injunction is denied, the proceedings would continue to assess the extent of damages. A motion for injunction may be denied if it causes hardship to the public in general and great Toss to the government. Greenville v. State Highway Com., 196 N.C. 226 (N.C. 1928). Additionally, the remedy of Mandamus is also available to a land owner against the condemnation authority in order to ascertain the damages caused to the property and the compensation entitled to the land owners. Proctor v. Thieken, 2004 Ohio 7281 (Ohio Ct. App., Lawrence County Dec. 17, 2004). Also, a writ of prohibition may be the proper procedure to use in challenging a proposed order of condemnation It can also be used in cases relating to jurisdiction of a court in an eminent domain proceeding. Domiano v. Department of Envtl. Resources, 713 A.2d 713 (Pa. Commw. Ct. 1998). A state or a department cannot be held for the wrongful or unauthorized acts of its officials. For the state or department to be held liable, it should be proven that an official was authorized to do such an act or that act had been sanctioned by the state or concerned department. United States v. Archer, 241 U.S. 119 (U.S. 1916). Under certain jurisdictions, governmental immunity is available from liability for negligent torts. In spite of this immunity, recovery may be made where a governmental project is maintained negligently so as to constitute a nuisance causing damage to private property. Recovery of the value of property which has been taken by a governmental entity is possible even otherwise, other than through eminent domain procedures. Robinson v. Ashdown, 301 Ark. 226, 1990 Ark. LEXIS 41. The Tucker Act waives certain immunities available to the government in certain law suits. A landowner may initiate an action under the Tucker Act for compensation when the government illegally takes land not included in its document of taking or takes more land than it has paid compensation. Houser v. United States, 12 Cl. Ct. 454 (Cl. Ct. 1987). The doctrine of estoppel and waiver are available as defenses against a land owner. A land owner who has accepted compensation is estopped from challenging the condemnation proceeding. A landowners participation in the whole proceedings will waive any procedural defects in the condemnation proceedings. The remedies available have to be initiated within the period of limitation provided in the statutes. A proceeding initiated after the period of limitation is not entertained by the courts. The limitation period varies with the nature of the motions moved. A claim will accrue when the affected party knew or should have known of the injury which is the basis of the action. Duke St. Ltd. Pshp. v. Board of County Comm'rs, 112 Md. App. 37 (Md. Ct. Spec. App. 1996). The general rules of evidence are applicable in the condemnation or inverse condemnation proceedings. Burden of proof is on the land owner to prove damages to his/her property. A land owner may be awarded a sum as a cost or fee whenever a court judgment is rendered in his/her favor. Conclusion: A wise old attorney once told this writer that suing the government was the closest thing to self immolation. "They use your tax dollars to pay lawyers to beat you down. They're using your own money to crush you." He was speaking of fighting tax audits but the theory is normally sound. Eminent Domain - The Basic Law I Stimmel Law 12/4/23, 8 24 PM But one area that the average citizen can "take on" the government and has a good chance of prevailing is condemnation. Note that a jury trial can often be available and the average citizen is quite conscious of the need to fairly compensate people who suffer the deprivations caused by governmental action. It is a Constitutional right to be fairly compensated and few governments want to be seen as ogres taking property unfairly. That said, as with every fight in our legal system, be sure to carefully consider the cost benefit aspects of the litigation and make sure you have set aside a war chest sufficient to demonstrate to the authorities that you fully intend to protect your own rights. Be realistic, be fair, but also be determined. Relief is often available. Article Categories Real Property Transactions (/en/articles/category/real-property-transactions) Legal Actions Regarding Real Estate (/en/articles/category/real-property-transactions/legal-actions- regarding-real-estate) Real Property Litigation (/en/articles/category/real-property-litigation) Property Rights Disputes (/en/articles/category/real-property-litigation/property-rights-disputes) Star` resolving your legal matters - contact us today! 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Read more about our firm (/about -us) © 2023, Stimmel, Stimmel & Roeser, All rights reserved I Terms of Use (/terms -use) I Site by Bay Design (http://www.baydesignassociates.com) t..,/ 3\MPS Cgla'i,f tLei v-i1 e Itot 1.1,04)-1711 2023_0125-0724_bikepath_objections_pg1-7 ,t_w S� GUIs p/ti?',�c.� As to six questions posed in the January BBR Bike Path News, here is BBR homeowner input • "Our facilities are designated for the use of homeowners, their families and guests; not the public." • "Our Master Design describes clearly private ways, private areas, etc." • "Only 1.5 miles of BBR bike trails are on public property." • "People, other than homeowners, their families and guests that bike "anywhere they desire" at BBR, are disregarding posted private property signage and are trespassing." • "Opposition to the path is about increasing trespassing onto a privately owned area, maintained by homeowners, not some petty, personal reaction." • "Central Oregon has abundant bike trails within 10 minutes of BBR for everyone to enjoy." • "The proposed trail will bring more unauthorized cyclists from the greater Sisters community and lead to a deterioration of the Ranch's historic "feel"." • "The proposed bike trail will provide more access, more riders, more people at our facilities on private ground." • "BBR will have no control over who enters the private, residential areas, in what numbers and what they will be doing." • "Adding more administration at our pools will further stretch our limited staffing and increase cost to homeowners." • "Added electronic set-up and checking more ID to limit access will cost all homeowners." • "The proposed path serves a few privileged BBR homeowners to ride into town on a paved trail." • "There already exists an alternate route to Sisters via the Power Line Road." • "Safety on BBR trails is already compromised during the summer; more unauthorized bikers, more safety concerns." • "BBR bike trails are narrow, in part steep, windy and used by many homeowners, their families and guests; adding unauthorized cyclists will contribute to less safety." • "Trait users include walkers, kids on scooters, kids on striders, kids learning to ride a bike, joggers, families riding in groups and the occasional elderly in a walker. Adding unauthorized bikers to the mix will make the trails busier and less safe." • "EMT services, funded by homeowners, will increase due to the addition of unauthorized cyclists." • "Due to busy bike paths, more serious cyclists often use the road, challenging automobile traffic; more cyclists, more traffic problems." • "More unauthorized people, more needed oversight, more cost, less enjoyment." • `BBR Police is funded by a combination of homeowner -paid property taxes, as well as a homeowner voted levy to offset costs the property taxes don't cover." • "With the new path we will have no control over who enters the private residential areas, in what numbers and what they will be doing." • "Opening the Ranch to the bike trail will create additional police and administrative burdens for the Ranch." • "Perhaps checking IDs works for the gym, pools, et.m but how do you keep the kikers off our paths?" Homeowner Input Page 1 • "Cost and Headcount...I don't want both to increase." • "One open door leads to another, and another, and then where does it stop?" • "A public bike path to BBR will undeniably increase the number of people who are not homeowners or their guests on the Ranch." • "It will lead to a deterioration of the Ranch's historic "feel"/ambiance & surely require increased expenses to deal with unforeseen consequences." • "We have bike riders from off the Ranch now & they pose a problem for our little ones. An increase in riders will only make the problems worse." • "But how does the ranch benefit or become safer by adding any non -owner, non -guest bike riders?" • "If the trail is not going to bring a crowd, why even go through the expense and damage to the forest to put it in?" • "Is it only to serve BBR owners and guests to go for breakfast, shopping, and church?" • "There is not a single justification for this project." • "Checking I d(sic) for everyone? Not realistic." • "Who would pay for the checking of ID (installing systems) at Glaze Meadow and the other neighborhood pools? Use of other BBR facilities such as pickleball courts?" • "I would think it would be scary to ride through the woods with a bunch of forest dwellers in there that don't appear to be going away anytime soon." • "So, the argument is that there won't be many people using the trail? So, if that is the case, then why pay for the cost of a trail that won't be used?" • "Concern is safety on the bike path, and the fact that there are many forest dwellers who would now have clear access to BBR. What happens/who is responsible for any issues/assaults that happen on the bike path?" • "Right now the only ID anyone needs in our safe community is to use the Lakeside facility. So now we would have to check in everywhere?" • "The disadvantages of the endeavor to have a paved path is very apparent." • "I honestly cannot think of any realistic benefit to homeowners? Ranch Owners from an invasive bike path fostering incursions from additional traffic, most likely during the busiest times of the year." • "Our tranquility is already limited during the summer months." • "Adding more bicycle traffic to the paths and roadways can only increase the likelihood of injuries and accidents." • "Legitimate access to Ranch amenities cannot be adequately controlled without many more personnel and administrative costs to the homeowners. A very real additional burden on the Ranch budget." • "Does anyone want to depend on more police to protect what we already enjoy as our "lifestyle"? Not to mention the cost should it become necessary." • "Normal inflationary rises in homeowner dues are burden enough without adding more costs related to trespassing cyclists." • "There is simply no cost benefit to the Ranch." • "There is no net gain to the enjoyment." Homeowner Input Page 2 • "There is no need to pave a trail there so that a few people can ride their other (road) bike there." • "Let's not forget the motorized traffic that the paved trail would inevitably attract and further degrade the area." • "Redundancy/duplication of existing trails along Hwy 20." • "Seems to be a total waste of resources." • "Negative impact for Migratory Species (Elk, Deer)." • "Fire risk due to discarded cigarettes etc. and non -permitted camp fires." • "Seems to be a total waste of resources." • "Negative impact for Migratory Species (Elk, Deer)." • "Fire risk due to discarded cigarettes etc. and non -permitted camp fires." • "Will BBR Homeowners be willing to assess themselves additional monies to guarantee safety and prevention of crime?" • "Would the Homeowner Association be willing to install surveillance systems in order to guarantee compliance with our BBR Rules?" • "It appears that the only benefit to BBR Homeowners for supporting the proposed trail would be one of convenience." • "What really concerns me is the egregious lack of prioritizing this issue for our BBR Board of Directors." • "The BBR BOD should be discussing this issue at every meeting and giving time for Homeowner Comments.They cannot be reactive they must be proactive and engaged." • "Board members represent all property owners —not constituencies—. and are expected to act and vote at all times in the best interests of Black Butte Ranch." • "BBR#1 - home owner (sic) 40 + years STRONGLY OPPOSE BIKE PATH." • "Every non avid bike rider opposes the trail. BBR receives nothing of value from Iinkin the trail to the ranch." • "I personally oppose the trail for the additional reason that I perceive the trail to present real safety concerns for those using it, particularly single riders. It is highly unlikely that a rider in plain view of motorists passing by on highway 22 will be assaulted. The opposite seems quite inevitable on a path screened from view." • "I believe that the trail will be unsafe. It's a perfect venue to waylay a solo biker." • "I am a Black Butte Ranch (GM310) homeowner and a bike rider. The BBR mission statement and CC&R's provide that our property is held for the exclusive benefit and enjoyment of our homeowners and guests. All of the cost and expenses associated with this benefit is borne by the homeowners, which the costs continue to escalate." • "By opening the gates to BBR with a trail from Sisters to BBR it will allow a violation of our core documents which make BBR a unique and special place." • "Adding trespassing bikers to our already congested bike paths will undermine our special benefits and diminish homeowners and guests enjoyment. We pay thousands of dollars for these benefits and privacy, why give them away to the public." • "BBR is a private community with strict and detailed CC&R's. There is absolutely no reason to allow people who are not homeowners or guests on our property. It will add to our cost operations and subject us to potential claims and lawsuits." Homeowner Input Page 3 ono Vii0 5x_ /5 P,Wi' s