HomeMy WebLinkAboutOrder 056 - Vested Rights CasesDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of Wednesday, July 9, 2008
Please see directions for completing this document on the next page.
DATE: July 7, 2008
FROM: Steven Griffin Legal Counsel 330-4645
TITLE OF AGENDA ITEM:
Consideration and signature of Order 2008-056 Declaring the Decisions of the Hearings Officers to Be
the Final Decision of the County in the Ballot Measure 49 Common Law Vested Rights Cases.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
A section of Ballot Measure 49 allows a Measure 37 claimant who received a waiver of land use
regulations to continue and complete the use described in the waiver if the claimant has obtained a
"vested right" under the common law to complete the use. Final County determinations on this issue
are subject to an action in the circuit court known as a "writ of review." In a writ of review, the County
record is transmitted to the circuit court and a judge evaluates whether the County acted lawfully.
Approximately twelve receipients of Measure 37 waivers have applied to the County for a
determination of whether they have achieved a "vested right" under the law. The director of the
Community Development Department has determined that these applications will be heard by a
hearings officer. Ordinarily, a party would appeal an adverse determination from a hearings officer to
the Board. The Board has discretion not to hear the merits of any appeal. DCC 22.32.035(A) allows
the Board to issue a standing order to not hear a particular class of appeals and to allow the hearings
officers' decisions to be the final decision of the County. Order 2008-056 would bypass Board review
in this class of cases. If approved, the first -level appeal would be to the circuit court. This will hasten
the matter into court and thus save the time/expense of a separate Board hearing.
To date, six (6) such administrative determinations have been appealed to the Board. On June 2 and
July 7, 2008, the Board exercised its discretion and declined to hear the appeals on the merits. It is
anticipated that the applicants will file writs of review to the circuit court. If the Board signs this order,
no future appeals of the hearings officers' decisions in vested rights cases will be presented to the tide
Board. CDD staff will provide the Board copies of the hearings officers decisions, however, and the
Board can rescind or amend the order if the Board chooses to hear a particular vested rights case.
FISCAL IMPLICATIONS:
The County charges a fee for an appeal from a hearings officer's decision to the Board. There are ;ix
(6) "vested rights" determinations pending. If the Board approves this order, the County will not �e
able to collect an appellate fee in the event an interested person seeks review of the decision. If th:;
matter is made the subject of a writ of review proceeding in Circuit Court, the County would be
required to furnish, as part of the record, a transcript of the County proceedings before the hearings
officer. This expense would not be reimbursed.
RECOMMENDATION & ACTION REQUESTED:
Approve proposed order.
ATTENDANCE: Mark Pilliod, Steve Griffin and Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
None
REVIEW
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declaring the Decisions of the Hearings
Officers to Be the Final Decision of the County in
the Ballot Measure 49 Common Law Vested
Rights Cases
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*
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ORDER NO. 2008-056
WHEREAS, Deschutes County Community Development received twelve applications for common law
vested rights decisions ("vested rights cases") pursuant to Ballot Measure 49, passed by Oregon voters on
November 6, 2007; and
WHEREAS, hearings officers have been assigned the vested rights cases and have or will issue
decisions on these cases; and
WHEREAS, any disputed issues regarding the vested rights cases will ultimately be decided in state
court; and
WHEREAS, Deschutes County Code ("DCC") 22.32.035(A) authorizes the Board to designate a class
of cases for which "the decision of the lower Hearings Body of an individual land use action or a class of land
use action decisions shall be the final decision of the County"; and
WHEREAS, the Board finds that it is in the public interest for the hearings officers' decisions in the
vested rights cases to be the final decision of the County; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. For all applications for a common law vested rights decision pursuant to Ballot Measure 49,
passed by Oregon voters on November 6, 2007, the hearings officers' decisions shall be the final decisior of
Deschutes County.
Section 2. The Board may rescind or amend this order at any time should the Board find that it is in the
public interest to initiate review in accordance with DCC 22.28.050 of any one vested rights case.
Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
DENNIS R. LUKE, Chair
TAMMY (BANEY) MELTON, Vice Chair
ATTEST:
Recording Secretary MICHAEL M. DALY, Commissioner
ORDER No. 2008-056 (07/09/08)
