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Home My WebLink AboutOrder 034 - Remand Johnson Vested Rights CaseDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of July 24, 2013 DATE: July 18,2013 FROM: Mark Pilliod Legal 388-6624 TITLE OF AGENDA ITEM: Consideration of Board Signature of Order No. 2013-034, Remanding the John Johnson Declaratory Ruling Application (DR-08-6) to the County Hearing Officer. PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: In May 2012 based upon a decision by the Oregon Court of Appeals, the Deschutes County Circuit Court issued a Judgment and remanded John Johnson's declaratory ruling application (vested rights) to Deschutes County (attached). The County must now issue a new decision. Consistent with Board policy, specifically Order No. 2008-056, which delegates final decision-making authority on vested rights cases to county hearing officers, the Board should direct the County Hearing Officer, Karen Green to conduct further proceedings on DR-08-6. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Consider and adopt the proposed order and approve Board signatures ATTENDANCE: Mark Pilliod DISTRIBUTION OF DOCUMENTS: Copies to Legal, CDD and Karen Green, DC Hearing Officer REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Remanding the John Johnson * Declaratory Ruling Application (DR-08-6) to the * ORDER NO. 2013-034 County Hearing Officer * RECITALS John Johnson owned real property in the Redmond area and applied for and received from the County and the State of Oregon waivers of land use regulations pursuant to Measure 37. In April 2006 Johnson applied to the County for approval of a 40-lot residential subdivision to be developed in four phases. He received from the County final plat approval in June 2007 and for Phase I in October, 2007. He applied for but did not receive final plat approval for Phase II later that month. In December, 2007 Measure 49 became effective and in July, 2008 Johnson submitted an application with the County for a declaratory ruling (DR-08-6) to determine whether in light of Measure 49 he had obtained a vested right to continue to develop his property consistent with the approved and pending subdivision applications. As part of the Declaratory Ruling process, the County Hearing Officer, Karen Green conducted a hearing on September 23, 2008, received testimony and evidence, as well as legal arguments from the County and Johnson's attorney, Ed Fitch. After the close of the evidentiary hearing Hearing Officer Green issued a decision in January, 2009. Dissatisfied with the County hearing officer's decision, Johnson timely filed with the Deschutes County Circuit Court a Petition for Writ of Review. The Circuit Court held a hearing on the Petition for Writ of Review and issued a decision in January 2010 vacating and remanding the County hearing officer's decision. Deschutes County filed an appeal of the Circuit Court's decision with the Oregon Court of Appeals. The parties submitted briefs and argued the case in 20 I 0 and in response to a request by the Court of Appeals the parties submitted additional arguments in February 2011. The Court of Appeals issued a decision in March, 2012. The Court affirmed the Circuit Court's decision vacating the hearing officer's decision, but also vacated the Circuit Court's decision, finding that the lower court had erred in that it rendered its own extensive findings and circumscribed the scope of the hearing officer's future reconsideration. In May, 2012 based upon the decision by the Oregon Court of Appeals, the Deschutes County Circuit Court issued a Judgment and remanded the case to Deschutes County (attached). Following the circuit court remand of the case, the County and Johnson's attorney attempted but failed to reach agreement on how the County would conduct the remand hearing, either by the original hearing officer, Karen Green or by another County appointed hearing officer. In April, 2013 Johnson's attorney requested and the County Board approved the attorney's withdrawal from the case. Mr. Johnson's surviving spouse (John Johnson having passed away) has not advised the County whether she has retained new legal counsel. Now that the Circuit Court has remanded the case, the County must issue a new decision regarding Johnson's declaratory ruling application. Consistent with Board policy, specifically Order No. 2008-056, which delegates final decision making authority on vested rights cases to county hearing officers, the Board believes that it is in the public interest to direct the County Hearing Officer, Karen Green to conduct further proceedings on DR-08-6. THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDERS as follows: PAGE 1 OF I-ORDER NO. 2013-034 j ] i I --------------- Section 1. The Declaratory Ruling Application submitted by John Johnson (DR-08-6), together with the record of proceedings, as generally described in the recitals is hereby remanded to the County Hearing Officer, Karen Green for further proceedings consistent with this order. Dated this of ,2013 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ALAN UNGER, Chair TAMMY BANEY, Vice Chair ATTEST: Recording Secretary ANTHONY DEBONE, Commissioner ! I I PAGE 2 OF 1 ORDER NO. 2013-034 5 10 15 20 25 •1 2 3 4 6 7 x 9 11 12 13 14 16 17 18 19 21 22 23 24 26 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DESCHUTES JOHN JOHNSON, Case No. 09CY0114AB Peti ti oner-Respondent, GENERAL JUDGMENT v. REMAND TO DESCHUTES COUNTY DESCHUTES COUNTY, a political BOARD OF COMMISSIONERS subdivision of the State of Oregon, acting by and through its Board of County Commissioners, Respondent -Appellant. This matter came before the Court following a remand from the Oregon Court of Appeals Case No. A144929. And the Court finding that a remand from the Circuit Court is required for the Deschutes County Board of Commissioners to reconsider the vesting matter based upon the decision of the Court of Appeals. The Court now hereby enters <:l General Judgment of remand to the Deschutes County Board of Corr.missioncrs consistent with the Court of Appeal,> deCision in Case No. A 144929. DATED this -.J~ day o~,2012. ~ THE HON~lCHAEL ADLER RESPECTFULL Y SUBMITTED BY: EDW ARD P. FITCH, OSB 782026 LISA D.T. KLEMP, OSB 040012 Of Attorneys for Petitioner-Respondent Bryant, Emerson & Fitch, LLP P.O. Box 457. Redmond, OR 97756 Telephone: (541) 548-2151, Facsimile: (541) 548-1895 E fitch@,redmond-Iawyers.com lisa(ii}rednlOnd-lav.yers.cQm I Page I -GENERAL JUDGMENT -REMAND TO DESCHUTIZS COUNTY BOARD OF BRYANT E'\tERSOl'; ..Ii. fll CH. LLP COMMISSIONbRS ATTORNEYS Al LAW 888 SW EVERGREEN "VENUEI G ,CllenMEPF\luhnsol1, John'Johnsen..i01111 REMAND,General Judgment· Rem3n" \Iopd PO BOX 457 REDMOND OK 9'1 :'J6·01C3 1 ELEPHCNf (541 )048-2151 ~AJ( (5411 548·";3S IN THE CIRCUIT COURT, STATE OF OREGON, COUNTY OF DESCHUTES CIVIUDISSOLUTION STATUSIPRE-TRIAL Case No: __.__---''''''---..:...:::....L..::,,:..._!.-1...._L.__'--''=--______Status/Pre-trial date: . \") '-,1/: d tIll Y CaseName:_:J~"I.)} '}J)7U () J JVJ) n V. V(::.>())· (' j [" ((/;) 1y PRESENT 0 BYPHONE~,. PRESENT 0 BY PHONE 0 BYPHONE 0 BY PHONE 0 PRESENT 0 BYPHONE 0 3rd Party: ________________ PRESENT 0 BYPHONE 0 Fees: Trialfeedue ____________________________ Answer fee paid __________Dueby: _______________ , Settlement possibility: Poor Fair Good Excellent Estimated length of trial: _______Court?____6 or 12 person jury? _________ Readyfortrial?____Trial date: _____----------------- Status Conference: _____________________________ New pre-trial Conference:-----------------1tl't-l\Jt-AOr..~tu4"·rhHU-t-JfH't'-1dHHCkt.;.+e,;>-')~ct::fl- Settlement Conference: ____________________________ NOTES: /) Pr() Cll4J/~ I)l{ ck: jYlln') C{)UA1-at c4JpcaJ s . . , .~·t/n) (Lnd (' c1 tD De -S LAlutCJ Co (D~YY) OJ I sS ley, t'l.:)I ..____=.__J\l.lLLl~JhJ] t Ut1LJ1_itf t:XL.,tcr 5) ,I (( }-I (, ;)7) !lJJ)Un j)Ct) p2JSfl -.p J,1 (t ttC·\'?, i,l) IJ2L r(nUL nr/ t A to /-tf{U) I) II i, ({f]' ( ct '/"" ____ . _~L__c.k,_ ~_L.~~ . .:-.'"'_~._ -W. 'j <: I r ().' L. t.. Ll )~l j) . 0_/) ) -r~ (\ .... ERNEST J. MAZq~Ol, III'. ./ . / ~ TRIAL Court AdmInistrator c\ i If ( I CitT' f (" {C \1)-ll).5 OJ jl ( (: r OJ IN_Book h(. I r'i){ll) 'i.'1'::, (n~( c \'0 by: -------...;..;.....'--'---'-~-"'------ 5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 n 23 24 26 <'''ll') t. prJ I r PI" I.. 03LU,. J h f\ ,. 0 Il '-I' J j' .' L .i! IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DESCHUTES JOHN JOHNSON, ) ) Petitioner,) Case No. 09CV01l4AB ) and ) MOTION AND ORDER TO ) WITHDRAW DESCHUTES COUNTY, a political ) subdivision of the State of Oregon, acting ) by and through its Board of County ) Commissioners ) ) Respondent. ) Edward P. Fitch, and the law firm of Bryant, Emerson & Fitch, LLP, hereby move the court for an order allowing them to withdraw as counsel for the reason that the personal representative of the Estate of John Johnson, Marcella Johnson, has requested that the case be closed. DATED this)L day of April, 2013. <.. 5--··..· Edward P. Fitch, OSB 782026 Bryant, Emerson & Fitch, LLP Of Attorneys for Plaintiff P.O. Box 457, Redmond, OR 97756 Phone: 541-548-2151, Fax: 541-548-1895 efitch@redmond-Iawyers.com ORDER: ~ IT IS HEREBY ORDERED that Edward P. Fitch and the law firm of Bryarit,Elliison . ..~ :::p' & Fitch, LLP, shall be and hereby are allowed to withdraw as counsel for Plaintif[~ ~~: Dated this 1.[day Of~.2013 .", ~. w o BRYANT EMERSON & FITCH, LLPPage 1 -MOTION AND ORDER TO WITHDRAW A rrORNEYS AT LAW 888 SW EVERGREEN AVENUE PO BOX 457 REDMOND OR 97756-0103 TELEPHONE (541)548-2151 FAX (541) 54S-1895 G:\Clients\EPF\Johnson, John\Johnson,John Writ\Motion to Withdraw.wpd