HomeMy WebLinkAboutHearing - Hurtley - Measure 49Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of October 28, 2009
Please see directions for completing this document on the next page.
DATE: October 12, 2009
FROM: Steven Griffin Legal 330 -4645
TITLE OF AGENDA ITEM:
Remand Hearing on application of David Hurtley for a determination of whether he is entitled to re ief
under Ballot Measure 49, Section 5(3).
PUBLIC HEARING ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATIONS:
Section 5(3) of Ballot Measure 49 allows a Measure 37 claimant who received a waiver of land usc
regulations to continue and complete the use described in the waiver if the claimant obtained a " vested
right" on December 6, 2007 to complete that use.
Four recipients of Measure 37 waivers applied to the county for an administrative determination o''
whether they have achieved a "vested right" under the law. The applications were referred to a hearings
officer who ruled that the applicants were not entitled to relief. Because Measure 49 states that such
local determinations are not "land use decisions" final county determinations on this issue proceed to
circuit court not the Land Use Board of Appeals.
In this case, the applicant petitioned the court to review the county's determination and partially
prevailed in that action. The trial court concluded that the county had misconstrued the applicable law,
vacated the decision, and remanded the matter to the county to be reconsidered under the correct 1
The proposed agenda item would be the county's reconsideration pursuant to the court's judgment
The questions presented at hearing will include: (1) Can one obtain a vested right to complete a Lind
use that has not yet been approved? (2) As of December 6, 2007, what is the total cost for the an licant
to "complete the use described in the waiver "? (3) As of December 6, 2007, how much had the
applicant spent to complete the land use? (4) What is the nature of the expenditures? (5) Were the
expenditures reasonable, not adaptable to another permitted use, and otherwise incurred in good faith?
(6) Considering the expenditures and other legal factors, had the applicant achieved a common law
vested right to continue and complete the land use?
FISCAL IMPLICATIONS:
The board's ultimate decision will have a negligible fiscal impact. Conducting the remand hearii g will
potentially result in cost savings.
RECOMMENDATION & ACTION REQUESTED:
Hold a hearing and render a decision.
ATTENDANCE: Steven Griffin, Deschutes County, Assistant Legal Counsel;
Ed Fitch, Attorney for Claimant;
David Hurt ley, Claimant
DISTRIBUTION OF DOCUMENTS:
Deschutes County Legal Department
Community Development Department
Remand Hearing, DR- 08 -02, David Hurtley, Common Law Vested Right to
Complete TP -07 -999
Legal Counsel Suggested Order of Presentation
1. Open hearing and state purpose of the hearing.
"The public hearing on DR -08 -02 on remand from the circuit court is now open. The
purpose of this hearing is to consider, on remand from the circuit court, the
application of David Hurtley for a declaration that he has achieved a common law
vested right to complete the land use approved by the county in TP -07- 999."
2. Declaration of conflicts.
Inquire as to whether any member of the board has any pre- hearing contacts, bias,
prejudice, or personal interest to declare.
3. Official notice of any facts outside the hearing record.
State any facts officially noticed outside the hearing record: None.
4. Challenges.
Inquire as to any challenges to the board's qualifications to hear the matter.
5. State substantive criteria and admonish participants.
"The substantive criteria for this hearing are set forth in the judgment of the circuit
court in the case of Hurt ley v. Deschutes County, Circuit Court Case Number
08CV0579AB. In summary, testimony and argument should be directed towards
whether or not on December 6, 2007 the Mr. Hurtley had made sufficient progress
towards completion of the residential subdivision tentatively approved by the county
in TP -07 -999 to have achieved a common law vested right to complete the project."
6. Order of presentation. Note: the parties will answer questions from the board
at any time during the hearing.
1. Staff report;
2. Proponent's presentation;
NOTE: There is no opponents' presentation because this is a remand hearing
and no opponents appeared in the circuit court;
3. Staff comments;
4. Proponent's final comments; and
5. Final board questions.
7. Conclusion.
"The public hearing on this matter is now closed."
8. Deliberation and render a decision or, alternatively, schedule for a later time to
render a decision, at the board's discretion.