HomeMy WebLinkAboutDoc 205 - Fitch-Johson AppealI
Deschutes County Board of Commissibners
1300 NW Wall St., Suite 200, Bend, OR 97701 1960
(541) 388-6570 -Fax (541) 385-3202 -www.desc
the
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 24, 2013
Please see directions for completing this document on the next page.
DATE: April 18, 2013
FROM: Mark Pilliod ~ Legal 388-6623
TITLE OF AGENDA ITEM:
Consideration and Approval of Request by the Applicant in the John Johnson vested rights pro1eeding
to allow Attorney Fitch to withdraw as the Applicant's legal counsel I
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
John Johnson submitted an application for and obtained (2005) a Ballot Measure 37 waiver fro
County and State. These were necessary for him to proceed with a residential subdivision deve
of his property. In 2006 he submitted an application for preliminary subdivision plat for 40-10t
subdivision in four phases. The county approved Johnson's final subdivision plat in 2007. How ver,
Measure 49 became effective in December 2007 (House Bill 3540), Since Johnson had only co pleted
certain preliminary activities at the time the Oregon Legislature adopted Ballot Measure 49, Jo son
was prevented from continuing his subdivision development until he could demonstrate he was entitled
to continue the project under the principal known as "common law vested right" (which was th~
standard for determining whether partially completed projects could continue after Measure 49),
Johnson thereafter filed for a declaratory ruling by which he sought County approval of a veste~ right,
based on the principal that he had made substantial effort and expended considerable sums tow.rd his
intended project and should be allowed to complete it. Johnson presented his case to the coun "S
hearing officer, Karen Green, who issued a decision in early 2009. Green ultimately concluded hat
Johnson had established a vested right to complete phase I, but not phases II, III and IV. 1
Johnson challenged Green's decision by filing a petition for writ of review with the Circuit Court, which
heard the matter and ultimately decided that the hearing officer was wrong and that Johnson was
entitled to a vested right for the entire 40-10t subdivision. I
The County appealed the circuit court decision to the Oregon Court of Appeals. The Court of All·peals
ruled that Karen Green's decision was based upon an erroneous interpretation of the law of vest d
rights. In defense of the County, the Court acknowledged that Green's decision was correct at t e time it
was made, but only became erroneous based on a later decision by the Oregon Supreme Court .. he
Court of Appeals also decided that the circuit court erred in requiring the hearing officer to decide the
matter in a particular way, rather than simply remanding the matter to the county. The Court of Appeals
thus vacated the circuit court's decision and directed the matter be returned to the County for further
consideration in light of the Supreme Court's and the Court of Appeal's analysis of how these vested
rights cases are to be decided.
While the case was proceeding through the courts, John Johnson died.
Following the Court of Appeals' decision remanding the case to the circuit court and in turn, th
County, Johnson's attorney, Ed Fitch asked that the Board direct his client's case to be decided. y a
hearings officer other than Karen Green. Without furnishing any proof, Fitch claimed that Green was
biased against his client. The Board ultimately decided that if Johnson were to cover the cost off
bringing in another hearing officer, who would be largely unfamiliar with the facts, the Board Would
agree to appoint a new hearing officer. However, in the absence of such an agreement, the matter would
be submitted to Karen Green. The Legal Counsel advised Johnson's attorney of the Board's dectsion on
the request for change in hearing officer last November. That was the last of the correspondencr.
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Most recently the attorney for the Estate of John Johnson, Ed Fitch, submitted a request that helbe
permitted to withdraw as counsel for the Estate of Johnson. I
The vested rights proceeding has not been concluded. However, there is no requirement that a latter
such as this only proceed with a represented party. Here, the application has been submitted for
decision after a full hearing. Further legal briefing probably will depend on how Karen Green .
approaches the matter. If she requests additional briefing, the county would present its analysis and the
applicant would likewise be given the same opportunity. Karen Green does not have the author~ty to
require an applicant's material be prepared and submitted by legal counsel. .
Following the Board's action on this request, County Counsel will contact the personal represe tative of
the Estate of Johnson and inquire whether they have legal counsel in order to give that person
opportunity to familiarize themselves with the case. In the absence of legal counsel, the county would
submit the matter to Karen Green, based upon the existing record and in light of the Court of peals
opinion in this matter. The hearing officer would not need to conduct any further hearing and c uld
decide the extent to which the applicant (now the Estate of John Johnson), would be entitled to vested
right to complete a 40-10t subdivision.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Approve Document No. 2013-205
ATTENDANCE: Mark Pilliod
DISTRIBUTION OF DOCUMENTS:
Copy to Ed Fitch, Attorney at Law, Bryant, Emerson &Fitch. LLP
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~fVI£~Il' =====I=i~Lt lliaP
Edward P. FitchBRYANT •
EMERSON ____..... . NS.:.::.:;:'l....:...-.JLEC_r..&.:·.~~€:...;~:...:u:::.:..
& FITCH, LLP
Attorneys at Law
April 1, 2013
,,-
Deschutes County Commissioners
1300 NW Wall Street, Suite 200
Bend, OR 97701
Re: Johnson Remand
Dear Commissioners:
In regard to the above-noted remand, enclosed is a Motion and Order to Withdraw as Attorney of
Record. Once it has been signed, please return a copy to me in the enclosed envelope.
If you have any questions, please advise. Thank you.
Very truly yours,
efitch@redmond-lawyers.C{)m
Sue Marceau
Legal Assistant
sue@redmond-Iawyers.com
Edward P. Fitch
EPF:kc
Enclosures
C: Marcela Johnson (w/enclosure)
G:IClients\EPF\Johnson,John Estate of\Commissioners Llr 040113.wpd
DC -20 1 3 -2 0 5
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,< •
888 SW Evergreen Avenue I PO Box 457 I Redmond OR 97756 L j
Phone: 541.548.2151 I Fax: 541.548.1895 -,
BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
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APPLICANT'S MOTION AND ORDER TO IWITHDRAW AS ATTORNEY OF RECORD
File Number: DR-08-6
Applicant/Owner: Estate of John Johnson
Marcela Johnson, Personal Representative
3626 NW Coyner Road
Redmond, OR 97756
Location: The property is identified on County Assessor's Map 14-13-31A,! as
Tax Lot 100 I
Edward P. Fitch and the law firm Bryant, Emerson & Fitch, LLP, hereby moves tlhe
Deschutes County Board of Commissioners for an order allowing withdrawal as attorneys ofre~rd
for the Applicant in the above-entitled matter. i
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Dated this _1_day of April, 2013.
Respectfully submitted,
Edward P. Fitch
Of Attorneys for Owner/Applicant
ORDER
Applicant's motion to withdraw is hereby:
Granted
Denied
Dated this _~day of April, 2013.
Hearing Officer
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BRYANT EMERSON & FITCH, IU
ATTORNEYS AT LAWPage 1 -APPLICANT'S MOTION AND ORDER TO WITHDRAW 888 SW EVERGREEN AVIENUE
PO BOX 457G;\Clienls\(lPF\Johnson, John\JohnsQJl,1ohn REMAND\Motion & Order to Withdraw. WPD(kc) REDMOND OR 97156-0103
TELEPHONE (541)548.2151
FAX 15411 548·1R95