HomeMy WebLinkAbout2009-12-09 Business Meeting MinutesES
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, DECEMBER 9, 2009
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger.
Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy
County Administrator; Tom Blust, Road Department; Timm Schimke, Solid Waste
Department; David Inbody, Assistant to the Administrator; Kevin Harrison and Ed
Pecoraro, Community Development; David Givans, Internal Auditor; Steve
Grin, County Counsel; and approximately a dozen other citizens. No
representatives of the media were present.
Chair Baney opened the meeting at 10:00 a.m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was the Reading of a Proclamation, Declaring 2010 the
"Year of the Volunteer" in Deschutes County.
Chair Baney read the proclamation to the audience. Commissioner Unger said that
Ed Onimus of the City of Redmond encouraged all agencies to make the same
declaration. Commissioner Luke added that Deschutes County has more
volunteers than employees, and they are to be recognized and honored every year.
UNGER: Move signature.
LUKE: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 1 of 12 Pages
3. Before the Board was Consideration of Chair Signature of an Invitation to
Bid Letter for Fuel Purchase Services.
In 2008 the County Internal Auditor performed an audit of the use of fuel
purchase cards. There were a number of deficiencies and changes needed, so a
policy was developed. Further information was gained regarding the amount
paid and other items.
The County could pay about $5,000 to participate in the State program;
however, the money would not remain local. There was an opportunity to ask
local vendors to match that rate. Two responses were received, and the winning
bid from Pacific Pride (Bend Oil) is actually lower than the contract rate. It will
save the County between $15,000 and $45,000, depending on use.
Commissioner Luke asked what happens if there is no outlet available in a
given location. Mr. Inbody said they are very common but another vendor can
be used if necessary. However, the same rate would be charged regardless of
the Pacific Pride location.
LUKE: Move Chair signature.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
4. Before the Board was Consideration of Signature of Order No. 2009 -074,
Establishing Rates for the Franchised Collection of Solid Waste and
Recyclables in the Unincorporated Areas of Deschutes County.
Timm Schimke gave a brief overview of the item, which was approved
previously. The new rate increase will take effect in January 2010. The
calculations appear to be reasonable and consistent.
Commissioner Unger asked why this increase is occurring. Mr. Schimke said
the economic slowdown has affected revenue, and funding is needed to support
capital projects and reserves. If the economy stays the way it is, an increase of
approximately $5 a ton will may be needed again in about five to seven years.
LUKE: Move Chair signature.
UNGER: Second.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 2 of 12 Pages
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
5. Before the Board was Consideration of Signature of Resolution No. 2009-
133, Authorizing the Creation of a Recovery Zone under the Provisions of
the American Recovery & Reinvestment Act of 2009.
Dave Kanner said that the stimulus program allowed government entities to
issue bonds for capital projects through the creation of a recovery zone. The
federal government allocated certain amounts to each agency. Last fall the
taxing districts were contacted about the bonding authority, and the cities of
Bend and Sisters and Rural Fire Protection District. The agency has to declare
itself economically distressed and a report to complete showing this
information.
There is also a formal process to sub - allocate funding to other jurisdictions.
Either Mr. Kanner or Marty Wynne should be authorized to sign on behalf of
the County as the documents come through.
The one big difference is that the County cannot roll the issuance costs into the
bond. Therefore, there will be about $20,000 work of costs out of pocket.
Commissioner Luke asked if more applications come in than there is funding,
how this will be handled. Mr. Kanner stated that the Board signed off on it as is
some time ago. If another organization comes mid -year asking for funding, it
may not be available to them.
The sub - allocations will be used for projects that are ready to go, as the focus of
the funding is to get projects done before the end of 2010.
There will be no cost to Deschutes County for handling the process for other
jurisdictions. The bonds have to be issued to a government agency, not a
private entity or nonprofit. It will not negatively affect the County's bond
rating.
LUKE: Move approval.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 3 of 12 Pages
6. Before the Board was Consideration of Signature of Resolution No. 2009-
134, Establishing Application Procedures to Implement Oregon House Bill
2339.
Laurie Craghead explained that this Bill changed the exemption requirements
for District Attorneys and staff, U.S. Attorneys, and government attorneys who
prosecute criminal matters. This is a different system that Judges and others go
through. This will consolidate the application form, which goes to Board staff
when someone is seeking information from the County and what documents
could be exempt.
Commissioner Luke asked about the notices that Community Development
needs for mailings. Ms. Craghead said that they are being asked for provide an
alternate address.
In the future, other groups may want their information exempted, such as school
teachers and others. There does not seem to be an easy way to get all of the
interested parties together to work on this, to pinpoint issues and potential
problems.
Commissioner Unger noted that he is disappointed that records have to be
handled in this way. Ms. Craghead stated that it is relatively easy to get
information on just about anyone through a variety of sources.
The Commissioners agreed that having a uniform application to be used by staff
makes a lot of sense.
LUKE: Move signature.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
7. Before the Board was a Public Hearing on Remand on an Application from
Marie Harry and Debbie Roe for a Determination of Whether they are
Entitled to Relief under Ballot Measure 4.
The Commissioners indicated they do not have any conflicts of interest, bias,
personal interest or prejudgment to declare in this issue.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 4 of 12 Pages
Steve Griffin reviewed the staff report on this item, which involves the
development of an 8 -lot subdivision on an 80 -acre parcel. There would be a
total of nine lots, with eight of them five acres in size and the remainder to be
agricultural. The applicant and staff are not far apart when it comes to
allowable expenses. The application declares $117,000 and Mr. Griffin finds
the costs are about $106,000. In regard to the ratio, it is between 10 -13 %,
which is well within the amount required.
As a further note, one factor found significant in the past is the reservation of
some land for agricultural use. In the Hurtley issue, this was also the case.
About 50% of the land would be reserved for agricultural use, and this is a non -
cost factor weighing in favor of the application.
He said that this appears to be a three -lot partition under Measure 49 clustered
at one end, and the project has one home per parcel, with a net increase of seven
homes. As long as the Board finds that home prices are less than $175,000, it
fits into the category of a vested right. The applicant indicates a cost of about
$90,000 to $125,000.
The largest difference was in the expenses of Stan Clark's work. The
applicants marked those expenses related to Measure 37, such as an advance
cost. The revised fee for Mr. Clark is in the $6,500 range. However, even if
the Board is extremely conservative, this is still within the necessary range.
Commissioner Unger stated that the homes ratio seems to vary widely
depending on the application. It seems that there would be a floor level and
range. Mr. Griffin replied that the ratio varies from case to case, based on
expenditures. What is ultimately sufficient depends on a number of factors,
such as the location, type of development and other things that affect the ratio.
The Courts have determined that while the ratio is important, there are other
factors that need to be considered.
Ed Fitch, representing Marie Harry, who was in attendance, said that she has
lived at this property for 94 years. The other party is her niece.
He said they came down from the cost of $117,000 to $112,000, but will accept
the numbers provided by County Counsel.
Being no further testimony offered, Chair Baney closed the public hearing.
LUKE: Move approval of the application, based on the figures provided by
County Counsel.
UNGER: Second.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 5 of 12 Pages
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Before the Board was Consideration of Approval of the Consent Agenda.
Commissioner Luke asked for clarification regarding Item #13, 58th Street's
name change. He said that he received an e -mail from someone who objected to
the name change.
Ed Pecoraro said that these people were concerned about the expense of a road
name change, but he advised them the cost is minimal. He gave an overview of
the item, and said that because the roads don't connect, it is confusing for the
public as well as emergency services personnel.
Chair Baney asked that approval of the minutes be on a future agenda as she has
not yet had a chance to review them.
Commissioner Luke asked about Item #8 and whether the funding is pass -
through money. Mr. Kanner stated that it is. Chair Baney said that this has been
in process for a couple of years.
LUKE: Move approval of the Consent Agenda, as amended.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Consent Agenda Items
8. Signature of Document No. 2009 -655, a Contract for Subgrant with the Family
Access Network Foundation
9. Signature of Document No. 2009 -672, Re- executing a Bargain and Sale Deed
Mistakenly Issued to Trust Instead of Trustee
10. Signature of Resolution No. 2009 -132, Extending Workers' Compensation
Coverage to Deschutes County Search and Rescue Volunteers as of January 1,
2010
11. Signature of Document No. 2009 -664, a Lease with the State of Oregon for
Space within the County's Computer Center for Remote Back -up System
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 6 of 12 Pages
12. Signature of Document No. 2009 -407, an Intergovernmental Agreement with
the State of Oregon regarding Storage of a State Travel Trailer
13. Signature of Order No. 2009 -075, Changing the Name of a Portion of SW 58th
Street to SW 58th Place, Redmond
14. Signature of a Letter Reappointing Clayton Higuchi to the Deschutes County
Budget Committee, through December 31, 2012
15. Approval of Minutes:
• Business Meetings: November 30; December 2
• Work Sessions: November 30; December 2
CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY
SERVICE DISTRICT
16. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9 -1 -1 County Service District in the Amount of
$3,395.06.
LUKE: Move approval, subject to review.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
17. Before the Board was Consideration of Signature of a Letter Reappointing
Clayton Higuchi to the Countywide Law Enforcement County Service
District Budget Committee, through December 31, 2012.
LUKE: Move signature.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 7 of 12 Pages
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/ 4 -H
COUNTY SERVICE DISTRICT
18. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension /4 -H County Service District in the
Amount of $2,679.58.
LUKE: Move approval, subject to review.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE COUNTYWIDE LAW
ENFORCEMENT COUNTY SERVICE DISTRICT
19. Before the Board was Consideration of Signature of a Letter Reappointing
Clayton Higuchi to the Countywide Law Enforcement County Service
District Budget Committee, through December 31, 2012.
LUKE: Move signature.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE RURAL LAW
ENFORCEMENT COUNTY SERVICE DISTRICT
20. Before the Board was Consideration of Signature of a Letter Reappointing
Clayton Higuchi to the Rural Law Enforcement County Service District
Budget Committee, through December 31, 2012.
LUKE: Move signature.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 8 of 12 Pages
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
21. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $801,297.27.
LUKE: Move approval, subject to review.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
22. ADDITIONS TO THE AGENDA
A. Before the Board was Consideration of Authorization of County
Administrator's Signature of Document No. 2009 -709, an
Intergovernmental Agreement for the Performance of Road Maintenance
Services for the City of La Pine.
Tom Blust explained that this process started about a year ago. It allows the
two entities to exchange maintenance activities, such as snow removal. The
City does not have the equipment, but will contract with others to do the work.
This would allow the County to concentrate on the main roads.
The work the County does for the City will be on an as- needed basis.
LUKE: Move signature.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
B. Before the Board was a Continued Public Hearing and Consideration of
Signature of Order No. 2009 -072, regarding Remand on an Application
from Frank L. Rencher for a Determination of Whether he is Entitled to
Relief under Ballot Measure 49.
Mr. Griffin indicated that this item remained open from the December 2, 2009
hearing in order to obtain further information from the applicant.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 9 of 12 Pages
Mr. Griffin said that a letter from Shirley Arnett was submitted detailing
information regarding the note in the amount of $75,000, which is the principal
only on the note. The second document is a canceled check dated June 17,
2009, for payment of the principal amount of the note. There is also a letter
from Ms. Rencher detailing the circumstances. There is a letter from C Corp,
explaining the changes from a 21 lot subdivision to a smaller number, and Mr.
Rencher was to reimburse C Corp, leaning away from the joint venture concept.
The costs became a loan to Mr. Rencher at that time.
There is also a summary of development costs of $101,164.64. Mr. Griffin
feels this represents the final accounting from the applicant.
Finally, the Hearings Officer's decision of February 19, 2008, approving a
subdivision application. This was not appealed to the Board. The Hearings
Officer also approved a common law vested right for the Arnett property.
Mr. Griffin has some concluding comments once discussion has been done.
Commissioner Luke said that the original idea was to deny this; does this
change the opinion of Mr. Griffin. Mr. Griffin said with this information and
Mr. Rencher's son's testimony, he feels that there would be a personal financial
exposure of $75,000 plus interest. This addresses the shortfall. He still feels
that the arrangement should be considered, but whether it is sufficient to deny
or grant the application is unknown. There has been some evidence of personal
investment and financial exposure, but he still feels this case is different from
other cases. He suspects it is adequate to approve. A revised set of cost figures
was submitted, and puts this ratio at about 7 -8 %.
Commissioner Luke said that he feels this is the last one the County will hear,
and people have until January 1, 2010 to make a choice between Measure 49
and Measure 37. Mr. Griffin said there is a case in Circuit Court for months,
the Johnson case, and he does not know what will happen with that.
Mr. Fitch appreciates the frustration with this issue, which has been a moving
target. The whole situation changed due to Measure 37 and Measure 49. The
bottom line is that Mr. Rencher is on the hook for at least the $75,000. This
does fall into the category to be vested.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 10 of 12 Pages
Mr. Griffin said he tried to get some kind of commitment out of the State but
was unable to do so. They have been provided with the information. There is a
hypothetical possibility of an appeal from the State. He said that approximate
figures are allowable, and the Board could determine that the applicant acted in
good faith. He feels that these findings would unlikely be challenged, and are
very defensible. $101,000 in expenditures and $1,000,000 in project costs
would make this decision reasonable.
Chair Baney closed the hearing at this time.
Commissioner Luke said that he does not have a problem with this scenario,
since a lot of questions were answered and made their case.
Commissioner Unger stated that he is confused about where the State is going
with this, but that is not the job of the Commissioners. When C Corp was
involved as a large developer and was interested in Arnett and Rencher
properties, and when that went away they lost interest. He has come up with a
low end vesting approval and supports the figures offered, which meets the
vested rights numbers, even though they are approximate.
Chair Baney agreed that the record submitted earlier did not support this, but
since information has been added she feels that the approximate values and the
figures can be supported for a vested right.
LUKE: Move approval of adoption of the findings as proposed, and approve
the common law vested right.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Being no, further items addressed, the meeting adjourned at 11:37 p.m.
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 2009
Page 11 of 12 Pages
DATED this 9th Day of December 2009 for the Deschutes County Board
of Commissioners.
Tammy Baney, Chair
Dennis R. Luke, Vice Chair
ATTEST:
Alan Unger, Commissioner
Recording Secretary
Minutes of Board of Commissioners' Business Meeting Wednesday, December 9, 20 )9
Page 12 of 12 Pages
TES
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, DECEMBER 9, 2009
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
1. CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's
discretion, regarding issues that are not already on the agenda. Citizens who wish to speak
should sign up prior to the beginning of the meeting on the sign -up cards provided. Please
use the microphone and also state your name and address at the time the Board calls on you
to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject
of a public hearing will NOT be included in the record of that hearing.
2. THE READING of a Proclamation, Declaring 2010 the "Year of the
Volunteer" in Deschutes County
3. CONSIDERATION of Chair Signature of an Invitation to Bid Letter for Fuel
Purchase Services — David Inbody, Administrative Services
4. CONSIDERATION of Signature of Order No. 2009 -074, Establishing Rates
for the Franchised Collection of Solid Waste and Recyclables in the
Unincorporated Areas of Deschutes County — Timm Schimke, Solid Waste
Department
5. CONSIDERATION of Signature of Resolution No. 2009 -133, Authorizing
the Creation of a Recovery Zone under the Provisions of the American
Recovery & Reinvestment Act of 2009 — Marty Wynne, Finance Department
6. CONSIDERATION of Signature of Resolution No. 2009 -134, Establishing
Application Procedures to Implement Oregon House Bill 2339 — Laurie
Craghead, Legal Counsel
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2005
Page 1 of 7 Pages
7. A PUBLIC HEARING on Remand on an Application from Marie Harry and
Debbie Roe for a Determination of Whether they are Entitled to Relief under
Ballot Measure 49 — Steve Griffin, County Counsel
CONSENT AGENDA
8. Signature of Document No. 2009 -655, a Contract for Subgrant with the Family
Access Network Foundation
9. Signature of Document No. 2009 -672, Re- executing a Bargain and Sale Deed
Mistakenly Issued to Trust Instead of Trustee
10. Signature of Resolution No. 2009 -132, Extending Workers' Compensation
Coverage to Deschutes County Search and Rescue Volunteers as of January 1,
2010
11. Signature of Document No. 2009 -664, a Lease with the State of Oregon for
Space within the County's Computer Center for Remote Back -up System
12. Signature of Document No. 2009 -407, an Intergovernmental Agreement with
the State of Oregon regarding Storage of a State Travel Trailer
13. Signature of Order No. 2009 -075, Changing the Name of a Portion of SW 58th
Street to SW 58th Place, Redmond
14. Signature of a Letter Reappointing Clayton Higuchi to the Deschutes County
Budget Committee, through December 31, 2012
15. Approval of Minutes:
• Business Meetings: November 30; December 2
• Work Sessions: November 30; December 2
CONVENE AS THE GOVERNING BODY OF THE 911 COUNTY SERVICI
DISTRICT
16. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the 9 -1 -1 County Service District (three weeks)
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2005
Page 2 of 7 Pages
CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4 -H
COUNTY SERVICE DISTRICT
17. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the Extension /4 -H County Service District (three weeks)
CONVENE AS THE GOVERNING BODY OF THE COUNTYWIDE LAW
ENFORCEMENT COUNTY SERVICE DISTRICT
18. CONSIDERATION of Signature of a Letter Reappointing Clayton Higuchi to
the Countywide Law Enforcement County Service District Budget Committee,
through December 31, 2012
CONVENE AS THE GOVERNING BODY OF THE RURAL LAW
ENFORCEMENT COUNTY SERVICE DISTRICT
19. CONSIDERATION of Signature of a Letter Reappointing Clayton Higuchi to
the Rural Law Enforcement County Service District Budget Committee,
through December 31, 2012
RECONVENE AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
20. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
Deschutes County (three weeks)
21. ADDITIONS TO THE AGENDA
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7 -1 -1 to access the state transfer relay service for TTY.
Please call (541) 388 -6571 regarding alternative formats or for further information.
FUTURE MEETINGS:
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2009
Page 3 of 7 Pages
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388 - 6572.)
Monday, December 7
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, December 9
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Thursday, December 10
11:00 a.m. Regular Update with Health and Human Services
Tuesday, December 15, 2009
1:00 p.m. Official Signing of Greater Sisters Community Wildfire Protection Plan — Sisters
Fire Department Community Hall
Wednesday, December 16
11:00 a.m. Oregon Youth Challenge Graduation Ceremony
2:30 p.m. Administrative Work Session — could include executive session(s) — Please note
later time!
Thursday, December 17
9:00 a.m. Regular Update with the Sheriff's Office
11:00 a.m. Regular Update with Community Justice
Thursday, December 24
Most County Offices will be closed to observe Christmas (unpaid day off)
Friday, December 25
Most County Offices will be closed to observe Christmas
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2009
Page 4 of 7 Pages
Thursday, December 31
Most County Offices will be closed to observe New Years (unpaid day ofj)
Friday, January 1
Most County Offices will be closed to observe New Years
Monday, January 4
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Tuesday, January 5
1:30 p.m. Meeting of Full Budget Committee — Overview and Update
Wednesday, January 6
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Thursday, January 7
8:00 a.m. Regular Meeting with the City of Sisters Council, Sisters City Hall
Wednesday, January 13
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Thursday, January 14
7:00 a.m. Regular Meeting with the City of Redmond Council, Council Chambers, Redmond
Monday, January 18
Most County Offices will be closed to observe Martin Luther King, Jr. Day
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2009
Page 5 of 7 Pages
Wednesday, January 20
1:30 p.m. Administrative Work Session — could include executive session(s)
Thursday, January 21
11:00 a.m. Meeting with Commission on Children & Families' Board and Department
Monday, January 25
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Wednesday, January 27
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Monday, February 1
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, February 3
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Wednesday, February 10
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Monday, February 15
Most County Offices will be closed to observe Presidents' Day
Wednesday, February 17
1:30 p.m. Administrative Work Session — could include executive session(s)
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2009
Page 6 of 7 Pages
Monday, February 22
10:00 a.m. Board of Commissioners' Meeting
12:00 noon Regular Meeting with Department Directors
1:30 p.m. Administrative Work Session — could include executive session(s)
Wednesday, February 24
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Monday, March 1
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, March 3
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session — could include executive session(s)
Thursday, March 4
10:00 a.m. Quarterly Update with the District Attorney
11:00 a.m. Quarterly Update with Community Development
1:30 p.m. Quarterly Update with the Road Department
2:30 p.m. Quarterly Update with Solid Waste
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7 -1 -1 to access the state transfer relay service for TTY.
Please call (541) 388 -6571 regarding alternative formats or for further information.
Board of Commissioners' Business Meeting Agenda Wednesday, December 9, 2009
Page 7 of 7 Pages
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.or'
ADDITIONS TO BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, DECEMBER 9, 2009
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
1. CONSIDERATION of Authorization of County Administrator's Signature of
Document No. 2009 -709, an Intergovernmental Agreement for the Performance
of Road Maintenance Services for the City of La Pine — Tom Blust, Road
Department
CONVENE AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE
DISTRICT
2. CONSIDERATION of Signature of a Letter Reappointing Clayton Higuchi to
the Countywide Law Enforcement County Service District Budget Committee,
through December 31, 2012
BOARD OF COMMISSIONERS' MEETING
Agenda Item of Interest:
Name
Address
REQUEST TO SPEAK
4-7g
Date: k ^ ��
Phone #s
E -mail address < < — leva-f2t2.44
In Favor
Neutral/Undecided
Submitting written documents as part of testimony? qt_ Yes
If so, please give a copy to the Recording Secretary for the record.
Opposed
No
BRYANT
EMERSON
& FITCH, LLP
Attorneys at Law
December 7, 2009
Via email: board@co.deschutes.or.us
and First Class Mail
Deschutes County Board of Commissioners
Deschutes County Services Building
1300 NW Wall St., Suite 200
Bend OR 97701
Re: Harry Vesting Application / File No. 4/4 -019
Response to Staff Report
Dear Commissioners:
Ronald L. Bryant *
Craig P. Emerson
Edward P. Fitch
Steven D. Bryant
Michael R. McLane
Lisa ).T. Klemp
Alison M. Emerson
Tony F. De Alicante *
Philip Emerson
* Also ad »tit al in Washington
We appreciate the work by Steve Griffin evidenced in the Staff Report. It appears Staff is
recommending approval based most ofthe eligible costs that were submitted, assuming homes would
have a cost factor of $170,000 per home or less. This would allow a ratio that would exceed the one
approved by the Supreme Court in Holmes of seven (7 %)percent. I was also appreciative in hearing
from Darcee Staley on Wednesday that the State will no longer be participating in the Harry matter.
Regarding the specifics of the StaffReport, it appears that only the ratio factor was addressed. There
were some specific questions concerning the expenses. Let me address those.
EXPENSES:
1. Povey and Associates expense item of $3,732.50. We are in agreement.
2. Septic fees of $4,355. We are in agreement.
3. Legal fees, Bryant, Emerson & Fitch. There is a slight disagreement here. The invoice wcre
for $8,729. We agree that the $1,387.50 should be deducted. The $2,110, however, was
expenses incurred prior to December 6th wherein our office provided advice to Marie Harry
and her grand -niece about what needed to be done in order to achieve a common law vesting
prior to December 6th. Those discussions did relate to this project and what needed to „get
done within the critical time frame. We believe those expenses should be allowed. 3 he
attorney's fees, then, should have a figure of $7,341.50.
4. Western Water Development - these were for the two wells dug on the property, $38,853.
We are in agreement.
888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756-0103
(541) 548 -2151 Fax (541) 548 -1895 E -mail bef@redmond-lawyers.com
BRYANT
EMERSON
& FITCH, LLP
Attorneys at Law
Deschutes County Board of Commissioners
December 7, 2009
Page 2 of 3
5. Starr Excavation - this was for the road construction on the property - $43,405.07. We are
in agreement on this.
6. Acme Engineering - $8,132.67. We are in agreement.
7. Stanley Clark - $7,487.71. Stan Clark represented the Harry Trust during the subdivision
process for the 8 -lot subdivision. He was not involved in the original application for four
lots. The tenure of his representation, therefore, was relevant to the 8 -lot subdivision. The
asterisks that were put on his bill were put there by me. I went through his bill carefully to
make sure that expenses relating to trust administration or to issues not related to the
subdivision were excluded. We have deducted those line items and come up with a figure
of $7,487.71. We have no objection to the deduction of the $1,300 advance costs as that
might be captured in the total costs for Acme Engineering. The net amount for the attorney
fees, then, should be $6,187.71.
8. Title expense - $150, agreed.
9. Deschutes County fees - $2,385, agreed.
EXPENSE RECOMMENDATION:
We recommend the Board allow the following expenses:
Povey & Associates
Septic Fees
Legal Fees - Bryant, Emerson & Fitch
Western Water Development
Starr Excavation
Acme Engineering
Stanley Clark
Title Expenses
$ 3,732.50
4,355.00
7,341.50
38,863.00
43,405.07
8,132.67
6,187.71
150.00
Total Expenses $ 112,167.45
Again, I want to emphasize that there are just slight differences between the approach taken by the
County Council and the Applicant. These are diminimus at best and should not alter the end result
one way or the other.
These costs were all born by Marie Harry and her trust. In the fall of 2007 she and the trust borrowed
BRYANT
EMERSON
& FITCH, LLP
Attorneys at Law
Deschutes County Board of Commissioners
December 7, 2009
Page 3 of 3
$160,000 which, paid not only for eligible expenses but also some that have been deemed ineligible.
There are two trust deeds in the sum of $80,000 recorded against the property securing repayment
of the loans. These have yet to be repaid but are past due.
In addition to these expenses, it appears that it is going to take about $93,000 to complete this
subdivision. That figure was derived from a declaration by Larry Havniear with a breakdown of
those costs. (Rec. 433) An analysis of the ratio approach is attached hereto.
OTHER FACTORS:
As the Board knows, a ratio analysis is only one factor and not necessarily a determining factor in
a vested rights analysis. Similar to the other applications the Board has heard, the Harry application
meets all the other factors. There is no question that all these eligible expenditures were expended
lawfully. They were all done in good faith in reliance upon the December 6th deadline that the
Legislature set. None of these improvements are pertinent to a Measure 49 development (the existing
well that preceded this development could serve two additional lots). Further, a road would not be
necessary for those two lots, which would be accessed directly from Wickiup Avenue. Neither the
septic evaluations, which are not in locations where these two Measure 49 lots would be, nor any of
the engineering or legal work done for the subdivision would be pertinent to a Measure 49 express
lane development.
SUMMARY:
In sum, all the factors under a vested rights analysis fall in favor of a determination that this project
should be vested. Again, we appreciate the assistance of Staff and the Board in getting this
determination finalized.
Sincerely,
Edward P. Fitch
cc: Steve Griffin, Deschutes County Legal Counsel
client
G:1Clients\EPF Harry, Marie\Harry,Marie- Remand\BOC Ltr 120709.wpd(mcm)
EXHIBIT A
Subdivision (8 Lots Only)
Costs expended to date
$112,167.45
- Povey & Associates - $3,732.50
- Septic fees - $4,355.00
- Engineer Fees - $8,132.67
- Legal Fees - BEF - $7,341.50
- Legal Fees - Stan Clark - $6,187.71
- Western Water Development - $38,863.00
- Star Excavation - $43,405.07
- Title Expenses - $150.00
Costs to Complete (8 lots) per Larry Havniear (Record p. 433)
$ 93,000.00
TOTAL PROJECT COSTS
$205,167.00
RATIO WITHOUT HOMES
54.6%
Subdivision (8 Lots Only)
Total Project Costs including homes
- 7 Homes @ $100,000
$ 905,167
- 7 Homes @ $125,000
$1,080,167
- 7 Homes @ $150,000
$1,255,167
Ratio for Lot Subdivision
- 7 Homes @ $100,000
12%
- 7 Homes @ $125,000
10%
- 7 Homes @ $150,000
8.9%
BRYANT
EMERSON
& FITCH, LLP
Attorneys at Law
December 8, 2009
Sent via e-mail: board @co.deschutes.or.us
and Hand Delivered
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200
Bend, OR 97701
Re Rencher Vesting Application
DR -08 -3
Dear Commissioners:
Enclosed with this letter are three documents:
Ronald L. Bryant "'
Craig P. Emerson
Edward P. Fitch
Steven D. Bryant
Michael R. McLane
Lisa D.T. Klemp
Alison VI. Emerson
Tony F. De Alicante "'
Phi ±ip Emerson
Also admi ed in Washinglon
1. Check from Shirley Arnett (12/5/07) for $75,000;
2. Check from Frank Rencher for $75,000 to REN Development to repay the loan to Shirley
Arnett;
3. Letter from Shirley Arnett regarding the repayment of the loan by Frank Rencher;
4. Letter from Chuck Koon, together with an accounting of the expenses paid on this project for
the 8 -lot subdivision; and
5. Ann Briggs' decision approved a similar subdivision (Urban Acres) at a ratio of 5.5 %.
As we indicated in our December 1, 2009 letter, REN Development was used to account for most of
the expenses for the project. (C Corp also advanced some monies mostly in relation to the 21 -lot
subdivision.) REN It did not have any ownership interest in the property and did not have any interest
in the proceeds of the project after the 21 -lot subdivision was denied.
As Chuck Koon's letter points out, the expenses advanced by C Corp in connection with the 8 -lot
subdivision together with the project management fee of $4,000 per month for the 8 -lot subdivision
are all expenses that are a liability of Frank Rencher and this property. They will need to be repaid
when the property is sold either in whole or in part.
In summary, we believe that the expenses that were outlined for the 8 -lot subdivision in the attached
Exhibit A are appropriate, to -wit: $105,787.31. The summation of these fees is an honest
reconciliation of the expenses for the 8 -lot subdivision only. The project as a whole not only meets
all the other factors outlined under the vested rights case law, to -wit: good faith, lawful expenditures,
lack of applicability to other allowed uses, together with the ratio of 5.5 to 9% fall within the range o f
an appropriate vested rights analysis.
888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756 -0103
(541) 548.2151 Fax (541) 548 -1895 E -mail bef@redmond-lawyers.com
SHIRLEY M. ARNETT
5792 NE 5TH
REDMOND, OR 97756
2023
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December 7, 2009
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200
Bend, OR 97701
Re Rencher Vesting Application
DR -08 -3
Dear Commissioners:
My name is Shirley Arnett. I am the wife of John Arnett and live on NE 5th across the street from the
Rencher property.
In the fall of 2007, I was asked to loan Frank Rencher the sum of $75,000. I did so. The obligation
to repay that loan included interest at 12 %. On June 10, 2009, Frank Rencher paid this note off. All
interest has been repaid as well. The trust deed that secured the note on Mr. Rencher's property has
since been reconveyed.
I hope this information is of help to the Board.
Thank you.
Very truly
Shirley Arnett''
G: \Clients\EPF\Rencher, Frank L\Rencher,Frank- Remand CL\Deschutes County.BOC.Arnett.12.3.09.wpd(mcm)
December 7, 2009
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200
Bend, OR 97701
Re Rencher Vesting Application
DR -08 -3
Dear Commissioners:
Enclosed is an accounting of the expenses that were paid in connection with the Rencher development
between July, 2007 and December 6, 2007.
The application for the 21 -lot subdivision was denied In June, 2007. Following that, W & H Pacific
modified the application to a five acre lot subdivision. Some of the work that had been done before,
albeit a fairly small amount, was applicable to the Rencher property regardless of the subdivision. This
would include, for example, the survey of the boundary as well as some water analysis for wells in the
area, information that was helpful and applicable to the 8 -lot subdivision.
As indicated before, after the denial of the 21 -lot subdivision, the economic relationship between Frank
Rencher and C Corp changed. The arrangement thereafter was for C Corp to continue to advance (or
loan) money on behalf of Frank Rencher in connection with this project. Those out of pocket
expenses, as well as the management fee were going to be paid by Mr. Rencher when the property was
sold. This was, in essence, a deferral of the payment so that he had time to generate sufficient revenues
to pay it. Mr. Rencher also obligated himself and the property to a loan for $75,000. I understand he
has repaid Shirley Arnett these monies last summer.
Very truly yours
Chuck Koon
President, C Corp
Enclosures
G:\Clients \EPF\Rencher, Frank L\Rencher,Frank- Remand CL\Deschutes County.BOC.Koonl2_7_09.wpd(mcm)
Reference
Invoice
Road Construction
Equipment Mobilization 12507Ren
Clearing & Grubbing 12507Ren
Clearing & Grubbing 12507aRen
Trucking, Rock Import 12507Ren
Trucking, Export 12507Ren
Road Grading 12507Ren
Total Road Construction
Utilities
Septic Feasability
Utility Trench
Total Utilities
Entitlement & Application Fees
Engineering
Total Engineering
120507
2087
110231
033988 -09
033988 -10
033988 -11
033988 -12
033988 -13
County Application/Review Fees 20607
Ren
Total County Applications
Administrative Fees
Project Administration
August
September
October
November
Total Project Administration
Legal Fees
126909
128061
128911
7534
REN Development
Development Costs
Description
Davison Construction, LLC
Davison Construction, LLC
Davison Construction, LLC
Davison Construction, LLC
Davison Construction, LLC
Davison Construction, LLC
Deschutes County
Bend Excavating, LLC
Group Mackenzie Eng.
W &H Pacific
W &H Pacific
W &H Pacific
W &H Pacific
W &H Pacific
Deschutes Co Plan Dept
Deschutes Co Road Dept
Project Management Fee
Project Management Fee
Project Management Fee
Project Management Fee
Bryant, Emerson & Fitch
Bryant, Emerson & Fitch
Bryant, Emerson & Fitch
Bryant, Emerson & Fitch
Total Legal Fees
REN Development - Total Expenditures to December 6, 2007
*Note: Prepaid interest to Shirley Arnett for one year was also paid on December 5th
G: \Clients\EPF\Rencher, Frank L \Rencher,Frank- Remand CL\Ren Development Costs.wpd
Acctg.
Date
12/5/2007
12/5/2007
12/5/2007
12/5/5007
12/5/5007
12/5/5007
12/5/2007
12/5/2007
Amount
$ 2,500.00
7,500.00
3,680.00
24,300.00
7,200.00
6,500.00
$51,680.00
$ 4,120.00
1.050.00
$ 5,170.00
7/5/2007 $ 1,156.84
7/18/2007 147.80
9/24/2007 1,123.93
11/20/2007 2,614.83
11/21/2007 5,921.65
12/5/2007 7,180.00
$18,145.05
2/12/2007 $ 3,410.00
10/15/2007 250.00
$ 3,660.00
7/20/2007
8/25/2007
9/20/2007
1/15/2005
$ 4,000.00
$ 4,000.00
$ 4,000.00
$ 4,000.00
$16,000.00
$ 1,173.83
124.50
48.56
5,159.70
$ 6,506.59
$101,161.64
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: DR -07 -14
HEARING HELD:
February 19, 2008
Deschutes Services Center Building
1300 NW Wall Street
Bend, OR 97701
APPLICANT /OWNER: Estate of William Miles
c/o Mark Frank
4701 W. Antler Avenue
Redmond, OR 97756
REQUEST:
2h2528j
e8 � p ff 0
o
N
w
c
' \ .. . ( i ?ep'`k j: j
An application for a declaratory ruling to determine whether the
applicant has a common law vested right to continue the development
of the Urban Acres subdivision approved under file no. TP -06 -978.
STAFF CONTACT: Paul Blikstad, Senior Planner
I. STANDARDS AND APPLICABLE CRITERIA:
Ballot Measure 49 (House Bill 3540), Oregon Revised Statutes Chapters 195, 197
Title 18, the Deschutes County Zoning Ordinance, of the Deschutes County Code.
Chapter 18.16, Exclusive Farm Use zone
18.16.030, Conditional uses permitted — High value and nonhigh value farmland
18.16.060, Dimensional standards
18.16.070, Yards
18.16.080, Stream setbacks
18.16.090, Rimrock setback
II. BASIC FINDINGS:
A. LOCATION: The subject property consists of eight platted lots within the Urban Acres
subdivision identified on County Assessor's Map 15 -12 -25 as tax lots 201 -208.
B. ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/ Redmond /Bend
subzone (EFU -TRB). The property is designated agriculture by the Deschutes County
Comprehensive Plan.
C. PROPOSAL: The application submitted is for a determination under Ballot Measure 49
whether there is a vested right to continue development of the Urban Acres subdivision,
consisting of 8 platted lots. The applicant submitted a burden of proof statement, and 13
exhibits attached to it, as part of the application.
D. SITE DESCRIPTION: The subject property includes a subdivision consisting of eight (8)
platted lots, all of which according to the Assessor's Office are under the ownership of
William Miles (see comments below on William Miles). A paved private road (SW
Wickup Drive) extends westward from SW 58th Street to serve the eight Tots. The upper
lots (lots 1 -4) are located immediately adjacent to SW 58th Street and are generally level,
with only a few, widely scattered trees. The other four lots (lots 5 -8) are located west of
lots 1 -4. A dwelling is under construction on lot 6 (building permit no. B65470). All eight
lots. have water rights, which range from 2.5 acres for lot 1, to 5 acres for lots 5 and 6.
The overall lot sizes for the eight lots range in size from 5 to 5.3 acres.
E. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the application to
several public agencies. Responses to the notice are summarized in the staff report and
are not reiterated here. To the extent the responses pertain to the declaratory rights
application, they are addressed in the findings, below.
F. PUBLIC COMMENTS: The Planning Division sent notice of the proposed declaratory
ruling application (hearing) to all property owners within 750 feet of the subject property.
At the public hearing, only the applicant's representatives and Pam Hardy appeared on
behalf of Central Oregon Landwatch. No other written testimony was submitted after the
close of the public hearing.
G. COMMUNITY DEVELOPMENT DEPARTMENT PERMITS: The applicant has
submitted land use applications and permit applications with CDD, including costs, as
follows:
Planning Fees:
Application No.
(Submittal Date)
Application Description
Application Fee
Final Approval Date
TP -06 -978
(9 -1 -06)
Tentative Plat for an
8 -lot subdivision
$2,955.00
February 13, 2007
MA -06 -22
(10- 30 -06)
Modification of TP -06 -978
$450.00
February 13, 2007
FPA -07 -7
(3- 12 -07)
Final Plat Review
$500.00
June 13, 2007
Total Fees
SW 8210 (7- 02 -07)
$3,905.00
$1,705.00
Development Permit Fees:
Lot Number
Permit Nos.
(Submittal Date)
Fees
Total Fees
1
F 23320 (3- 30 -07)
$485.00
B 65463 (6- 20 -07)
$255.00
S 58163 (6- 20 -07)
$910.00
SW 8210 (7- 02 -07)
$55.00
$1,705.00
2
F 23321 (3- 30 -07)
$485.00
B 65880 (8- 16 -07)
$300.00
$785.00
3
F 23322 (3- 30 -07)
$485.00
B 65464 (6- 20 -07)
$255.00
S 58164 (6- 20 -07)
$910.00
$1,650.00
4
F 23323 (3- 30 -07)
$485.00
B 65465 (6- 20 -07)
$255. 00
Hearings Officer Decision (DR- 07 -14)
Page 2 of 9
H. LOT OF RECORD: The subject property was platted into 8 lots as part of the Urban
Acres subdivision. The subdivision plat was recorded with the County Clerk's Office on
June 13, 2007.
I. APPLICANT INFORMATION: The original applicant for both the State and County
Measure 37 waivers was William Miles. The applicant in this declaratory ruling
application is the Estate of William Miles. The record includes a Death Certificate for Mr.
Miles indicating that he passed away on August 3, 2007.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. Introduction
This application for a vested rights determination requires rulings on three aspects of this
development:
(1) Confirmation that the eight Tots created pursuant to the Measure 37 waivers are
legally created lots
(2) A determination that dwellings may be constructed on those lots
(3) A determination that the Tots (developed or undeveloped) may be conveyed to third
persons
Hearings Officer Decision (DR- 07 -14) Page 3 of 9
E 97489 (6- 20 -07)
M 39235 (6- 20 -07)
P 33056 (6- 20 -07)
S 58165 (6- 20 -07)
SW 8211 (7- 02 -07)
$169.56
$56.16
$223.56
$910.00
$55.00
$2,154.28
5
F 23324 (3- 30-07)
$485.00
B 65466 (6- 20 -07)
$255.00
E 97030 (6- 20 -07)
$78.84
S 58166 (6- 20 -07)
$1,115.00
$1,933.84
6
F 23325 (3- 30 -07)
$485.00
B 65470 (6- 20 -07)
$4,251.72
E 97033 (6- 20 -07)
$78.84
E 98082 (6- 20 -07)
$373.68
E 98083 (6- 20 -07)
$38.88
E 98084 (6- 20 -07)
$78.84
M 39506 (6- 20 -07)
$120.96
P 33281 (6- 20 -07)
$515.70
S 58169 (6- 20 -07)
$1,115.00
$7,058.62
7
F 23326 (3- 30 -07)
$485.00
B 65468 (6- 20 -07)
$1,044.29
E 97032 (6 -20 -07
$78.84
E 97480 (6- 20 -07)
$169.56
M 39232 (6- 20 -07)
$69.66
P 33055 (6- 20 -07)
$349.92
S 58167 (6- 20 -07)
$1,115.00
$3,312.27
8
F 23327 (3- 30-07)
$485.00
B 65469 (6- 20 -07)
$255.00
S 58168 (6- 20 -07)
$910.00
$1,650.00
Total Fees:
20,249.01
H. LOT OF RECORD: The subject property was platted into 8 lots as part of the Urban
Acres subdivision. The subdivision plat was recorded with the County Clerk's Office on
June 13, 2007.
I. APPLICANT INFORMATION: The original applicant for both the State and County
Measure 37 waivers was William Miles. The applicant in this declaratory ruling
application is the Estate of William Miles. The record includes a Death Certificate for Mr.
Miles indicating that he passed away on August 3, 2007.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. Introduction
This application for a vested rights determination requires rulings on three aspects of this
development:
(1) Confirmation that the eight Tots created pursuant to the Measure 37 waivers are
legally created lots
(2) A determination that dwellings may be constructed on those lots
(3) A determination that the Tots (developed or undeveloped) may be conveyed to third
persons
Hearings Officer Decision (DR- 07 -14) Page 3 of 9
Using various arguments grounded in law and equity, the applicant argues that the
applicant has obtained the right to develop and /or convey the lots.' Because the
answers to these three inquiries are based on a convoluted combination of legal and
evidentiary factors, I begin my analysis by setting out a synopsis of the legal minefield
created by Measures 37 and 49. After the synopsis, I apply the facts to each of the legal
principles and explain why I conclude that the applicant has eight lots, that the lots can
be developed with a dwelling, and that those lots may be conveyed to third parties.
1. Measure 37.
Measure 37 was approved by the Oregon voters in 2004. Measure 37, which is codified
in state law at ORS 197.352(2005), created a cause of action whereby property owners
could obtain compensation or waivers from land use regulations that were adopted after
the claimants acquired their property if the regulations reduced their property values.
Claims were submitted to local governments and to the state, which evaluated the
claims and, for the most part, approved waivers to the devaluing regulations. Once
property owners received waivers from the county and /or state, the property owners
applied for land development approvals that effectuated developments permitted under
the waivers.
Between December 2004 (the date Measure 37 became effective) and December 2007
(the date Measure 49 became effective), processing of the Measure 37 claims was
interrupted by appeals. As a result, many Measure 37 claims lapsed, or were not
finalized in a land use decision on the Measure 37 land use application.2
2. Measure 49.3
On June 15, 2007, the Oregon Legislative Assembly referred Measure 49 to the voters.
Measure 49 was billed as a "modification" to Measure 37, but in fact severely
circumscribes both the nature and extent of development that can be approved under
Measure 37 waivers. For instance, Measure 49 allows only limited residential
development on land that was otherwise available for any number of lots and activities.
In addition, Measure 49 requires that the waivers granted under Measure 37 be re-
evaluated by the Oregon Department of Land Conservation and Development ( "DLCD"
or "Department. ") The Department must decide whether the estimated loss in value
asserted in the initial Measure 37 claims is supported by a uniform methodology for
calculating loss in value. In addition, the Department must work with property owners to
determine whether the claimants will receive an "express" waiver, which permits the
development of up to three parcels and three new dwelling units on property held by the
claimants, or whether the claimants are entitled to develop up to ten dwelling units on
1 For those who are not familiar with the difference, legal" issues generally refer to matters that arise out
of the application of laws or administrative rules. "Equity" refers to a more informal system that evolved in
the English courts to address disputes to reach a fair result. One of the major differences between law
and equity is that in order to obtain relief in a court of equity, one must have "clean hands." Here, the legal
issues arise from the application of ORS 215.130(5)(nonconforming uses), 215.427(3) (the "goalpost"
rule), and ORS 197.352 (2005) (Measure 37). The equitable issues arise out of the application of
common law vested rights principles.
2 Measure 37 claims that were pending or on appeal as of the effective date of Measure 49 are now moot.
Frank v. Department of Land Conservation and Development, Or App _ (CA A134704, January 23,
2008).
3 Measure 49 is now codified at ORS 197.300 et. seq. However, because much of the discussion
pertaining to Measures 37 and 49 refer to the Measure text rather than the statutory provisions, I do as
well.
Hearings Officer Decision (DR- 07 -14) Page 4 of 9
ten new Tots. It is generally understood that few, if any, of the claimants will be entitled to
develop ten dwelling units.
For those property owners who received Measure 37 waivers and who have a "common
law vested right" to develop as of December 6, 2007, development may continue under
the Measure 37 waivers and the claimants need not receive a supplemental approval
under Measure 49. See Measure 49, Section 5(3).
3. ORS 215.130(5).
This statute allows property owners to continue nonconforming uses and structures on
properties, so long as the uses and structures are not altered or abandoned. Further,
ORS 215.130(5) permits changes in ownership and occupancy without forfeiting the right
to the nonconforming use.4
4. ORS 215.427 (Goalpost rule)
ORS 215.427(3)(a) provides:
"If the application was complete when first submitted or the applicant submits
the requested additional information within 180 days of the date the
application was first submitted and the county has a comprehensive plan and
land use regulations acknowledged under ORS 197.251, approval or denial
shall be based upon the standards and criteria that were applicable at the
time the application was first submitted."
The type of vesting provided for in ORS 215.427(3)(a) is known as "an early vesting
rule." Its purpose is to establish a bright line standard from the onset, so that the parties
to a land use application understand which applicable approval standards will govern the
review of the application. In DLCD v. Jefferson County (Burk), Or LUBA _ (LUBA
No. 2007 -177, January 24, 2008), appeal pending _ Or App (2008), LUBA held that
the provisions and limitations of Measures 37 and 49 supersede ORS 215.427(3)(a),
where an applicant dies prior to a decision on a Measure 37 land use application. Under
the reasoning in Burk, only the claimant/applicant has the right to proceed with a
Measure 37 land use application, because Measure 37 rights are personal to the
claimant.5
5. Common Law Vested Rights.
"Vested rights" refers to the equitable principle that a party has the right to develop
property notwithstanding the adoption of more restrictive land use regulations, if the
party demonstrates that it has commenced the development in good faith.5 In Clackamas
County v. Holmes, 265 Or 193, 508 P2d 190 (1973)(Holmes), the Oregon Supreme
Court identified factors to be considered when analyzing expenditures made in reliance
on an assumed development approval to decide (after the fact) whether a project has
4 ORS 215.130(5) provides, in relevant part: The lawful use of any building, structure or land at the time
of the enactment or amendment of any zoning ordinance or regulation may be continued. * * * A change
of ownership or occupancy shall be permitted."
5 The circumstances here are different than the facts in Burk. Here, the claimant obtained final subdivision
plat approval prior to his death. In Burk, the claimant died before the county approved his tentative
subdivision plan.
e The Oregon Court of Appeals has described "vested rights" as "inchoate nonconforming uses." See
Fountain Village Dev. Co. v. Multnomah County, 176 Or App 213, 221, 31 P3d 458 (2001).
Hearings Officer Decision (DR- 07 -14) Page 5 of 9
vested. The Court adopted a requirement that includes consideration of the ratio of
expenditures incurred to the total costs of the project, but also included consideration of
other factors. The Court held:
"We believe that the ratio test should be only one of the factors to be considered.
Other factors which should be taken into consideration are the good faith of the
landowner, whether or not he had notice of any proposed zoning or amendatory
zoning before starting his improvements, the types of expenditures, i.e., whether the
expenditures have any relation to the completed project or could apply to various other
uses of the land, the kind of project, the location and ultimate cost. Also, the acts of the
landowner should rise beyond mere contemplated use or preparation * "." Holmes,
265 Or at 198 -99.
Over the years, the Holmes analysis has been refined somewhat. In Union Oil Co. v.
Board of Co. Comm. of Clack. Co., 81 Or App 1, 724 P2d 341 (1986), the Oregon Court
of Appeals held that not all Holmes factors will come into play in all cases, and that when
they do, different weight may be accorded to those factors. In addition:
a. Where a development includes both a land division and the development of
dwellings, the ratio test must include costs related to both. Webber v. Clackamas
County, 42 Or App 151, 155 n 2, 600 P2d 448 (1979).
b. The ratio test should not include the property purchase price unless there is
evidence that the buyer /developer paid a premium to develop the site for the
particular use it now seeks to vest. Union Oil Co. v. Board of Co. Comm. of
Clack. Co., 81 Or App at 7.
c. Costs must be incurred based on lawful permits. DLCD v. Curry County, 19 Or
LI.IBA 237 (1990) (holding that costs incurred after Supreme Court overturned
county approval are not to be considered in vesting analysis); Lung v. Marion
County, 21 Or LUBA 302 (1991)(expenditures incurred to develop landscaping
business cannot be included because they were incurred without land use
approvals); Crone v. Clackamas County, 21 Or LUBA 1992 (1991)(expenses
incurred to partition parcel could not be considered where applicant had not
applied for partition approval.)
d. Site preparation, engineering fees, and attorney fees incurred in obtaining
development approvals are allowable expenses to consider under the ratio test.
Cook v. Clackamas County, 50 Or App 75, 84, 622 P2d 1107 (1981).
e. By themselves, land use approval and building permits for a development do not
create a vested right to develop that particular use. Twin Rocks Watseco
Defense Committee v. Sheets, 15 Or App 445 (1973); Columbia Hills
Development Co. v. Land Conservation and Development Commission, 50 Or
App 483, 624 P2d 157 (1981); and Mason v. Mountain River Estates, Inc., 73 Or
App 334, 698 P2d 529 (1985)7
Twin Rocks and Columbia Hills were decided prior to the adoption of ORS 215.427 and its predecessor
statute, ORS 215.428. Mason was based on local code provisions that were adopted in 1980, also prior
to the adoption of the goalpost statute. Therefore, it is not clear whether those holdings have the same
precedential value in light of the goalpost statutes. See Kirpal Light Santsang v. Douglas County, 18 Or
Hearings Officer Decision (DR- 07 -14) Page 6 of 9
f. Expenditures that commit the property to the particular use contemplated by the
developer may be included in the ratio analysis. Conversely, expenditures that
can be applied to other allowed uses may not be considered to be directed
toward the purported vested right. Eklund v. Clackamas County, 36 Or App 73,
583 P2d 567 (1978)(developer allowed to include costs to develop water system
on site, because the water system was directly related to residential subdivision,
and not to the agricultural uses of the property allowed by the zoning); Webber v.
Clackamas County, 42 Or App at 155 (where water system could be used to
serve 5 -acre parcels, applicant could not include costs incurred to install the
water system to serve one -half acre lots.)
B. The Applicant's Arguments and Application of the Law to the Facts
According to the applicant, ORS 215.427(3) not only vests the parties to the standards
and criteria that applied at the time the Measure 37 land use application was submitted,
it also vests the right to develop the lots for the uses contemplated by the waivers and
allows the applicant to convey the Tots to third persons.
The hearings officer disagrees with the applicant that ORS 215.427(3) operates to
permit all activities on a lot that was created pursuant to standards in place at the time
the subdivision application was submitted. At most, ORS 215.427(3) establishes a
limited vesting right: the right to a local land use decision that is based on the standards
and criteria that were in effect at the time the application for a particular development
was deemed complete. It does not grant the applicant the unilateral right to further
develop the property if there is a change of regulations (such as the passage of Measure
49) that subsequently prohibits the use that was approved.
Nevertheless, for the reasons that follow, I conclude that the applicant has demonstrated
that the lots were legally created with the recording of the final subdivision plat, and that
the applicant has the right to convey those lots to third parties. Finally, based on the
evidence that Mr. Miles expended significant funds to develop the property in reliance on
his Measure 37 waivers, I conclude that the applicant has demonstrated that Mr. Miles'
estate has a vested right to develop the property for residential uses.
William Miles obtained tentative subdivision approval pursuant to his Measure 37
waivers on February 12, 2007. The final subdivision plat was recorded on June 13,
2007, and Mr. Miles died on August 3, 2007. There is no need to consider whether the
right to create the subdivision has vested; all actions needed to create the lots were
completed in accordance with the prescribed standards by the claimant/applicant, and
the subdivision plat was recorded prior to the passage of Measure 49.
Furthermore, the filing of the subdivision plat not only created the lots, it allowed the
owner of those lots to convey them to third persons, because ORS 215.130(5) allows
LUBA 651 (1990) on remand from Court of Appeals, 96 Or App 207, 772 P2d 944 (1989)(based on ORS
215.428, an application to construct a boarding school and associated buildings submitted seven days
before the standards changed must be reviewed against the standards in place at the time the application
was submitted, and not against the later- adopted conditional use standards.)
Hearings Officer Decision (DR- 07 -14) Page 7 of 9
conveyances of nonconforming property or uses (such as the subdivision at issue here).8
If the claimant/applicant had the right to convey the Tots prior to his death, that right
devolved to the personal representative of his estate. ORS 114.305. Therefore, the
applicant, as the personal representative of his father's estate, has the right to convey
each of the Tots to third parties as well.
Turning to the question of whether the right to develop each of the lots for residential
purposes has vested, the Measure 37 waivers granted Mr. Miles the right to subdivide
his property and place dwellings on each of the lots, and the development here is
consistent with that waiver. Measure 49, Section 5(3), ( "A claimant that filed a claim
under [Measure 37] * * * is entitled to just compensation as provided in * * * a waiver
issued before [December 6, 2007] to the extent the claimant's use of the property
complies with the waiver and the claimant has a common law vested right [as of
December 6, 2007] to complete and continue the use described in the waiver. ")
Therefore, any costs associated with the development of the Tots that predate June 15,
2007 may be analyzed to see if they are devoted to residential use or could be put to
other uses consistent with the zoning of the property.9
The record shows that the claimant expended approximately $165,000 in the
development of the subdivision for residential purposes. Those expenses include:
construction of an internal subdivision road, extension of utilities to serve each of the
Tots, septic evaluations, engineering, surveying, and legal fees.10 Two dwellings are in
the process of being constructed.
Staff concluded that the applicant adequately demonstrated that those charges
pertained to development of the property and not to resource uses allowed by the EFU-
TRB zoning. The opponent argues that some of those fees could be allocated to
development under M49, which might permit up to three parcels on the site, and
therefore should not be considered. With respect to the opponent's arguments, the
hearings officer agrees with the applicant that if this vested rights determination is not
favorable, there is little or no chance that the applicant has any recourse under Measure
49, because Mr. Miles died before the effective date of the measure and therefore the
estate cannot avail itself of the Measure 49 process. See Measure 49, Section 11(9)(a)(if
8 See also ORS 92.017 ( "A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the
lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. ")
9 The legislative assembly adopted HB 3540, which referred Measure 49 to the voters on June 15, 2007.
The referral was widely known, and was sufficient to put the holders of waivers on notice that a decision
to proceed with development was at the claimant's own risk. I reject the applicant's assertion that at the
earliest, the county should establish December 6, 2007 (the date Measure 49 became effective) as the
cut -off date, because the applicant reasonably expected the measure to be challenged during the interim
between voter approval and its effective date. The case law on this, while relatively scant, leads to the
conclusion that a developer does not have a good faith belief that a use is lawful if a court or legislative
action, such as a referendum, has concluded otherwise. DLCD v. Curry County, 19 Or LUBA 237 (1990);
see also County of Kauai v. Pacific Standard Life Insurance Company, 65 Haw 318, 653 P2d 766
(1982)(filing of petition to refer a development proposal to the voters is sufficient notice to the developer
that further development is not in good faith.)
1° I did not consider costs incurred to repair equipment, development costs incurred prior to tentative
subdivision approval, or costs that are not clearly linked to the Urban Acres development. I also agree
with staff that legal costs incurred to prosecute the applicant's Measure 37 claim are not to be Included In
the vested rights analysis.
Hearings Officer Decision (DR- 07 -14) Page 8 of 9
a claimant is an individual, the entitlement to prosecute a Measure 49 claim is not
affected by the death of the claimant, if the claimant dies on or after December 6, 2007.)
Based on this evidence, the hearings officer concludes that the applicant has made a
substantial investment in the property (a 1:21 ratio, based on a $165,000 investment in a
$3.9 million project), that the applicant proceeded in good faith to develop his property
consistent with the Measure 37 waivers, and that he did not have notice of the likely
changes passage of Measure 49 would have on his development at the time he
recorded his final subdivision plat and began site improvements to accommodate
dwellings." The applicant may complete residential development and convey the Tots as
contemplated in the Measure 37 waivers.
IV. DECISION:
For the reasons set out above, I conclude that the eight lots were legally created pursuant to
Measure 37 waivers when the final subdivision plat was filed on June 13, 2007. Therefore, there is
no need to decide whether the rights to divide the property vested prior to June 15, 2007 - -all of the
actions needed to complete the creation of the lots were performed prior to June 15, 2007. With
respect to the right to develop dwellings on the lots, if that was not also vested with the creation of
the lots for residential purposes, the applicant has demonstrated that he has invested a substantial
sum in furtherance of the residential development of the property and, therefore, he has a vested
right to complete the residential development contemplated by the waivers and the subdivision
approval.
DATED this Z1.Stday of April, 2008.
MAILED thiday of April, 2008.
tom.
Anne Corcoran Briggs
Hearings Officer
THIS DECISION IS FINAL WITHIN 12 DAYS OF MAILING UNLESS APPEALED TO THE
BOARD OF COUNTY COMMISSIONERS.
11 Staff concluded that the project had a total cost of $3,951,716.98, based on the costs to
develop the subdivision and eight dwellings at $474,146, the estimated value of the dwelling that
was approved for development on one of the Tots. The applicant submitted a ratio analysis based
on $146,000 expended for the subdivision and dwelling based on a $200,000 per dwelling cost,
resulting in a 1:12 costs incurred to total development cost ratio. The hearings officer concludes
that it is appropriate to split the difference. The sales price of the dwelling (the value the county
used) does not reflect its actual cost of development; conversely, it seems somewhat unrealistic
to find that a dwelling can be constructed on the site for less than $300,000.
Hearings Officer Decision (DR- 07 -14) Page 9 of 9