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HomeMy WebLinkAbout2009-09-28 Work Session Minutes Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, SEPTEMBER 28, 2009 ___________________________ Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Tom Anderson, Nick Lelack, George Read and Peter Gutowsky, Community Development; Mark Pilliod, Legal Counsel; Keith Cyrus, Chair of the Planning Commission; and five other citizens. Vice Chair Luke opened the meeting at 1:30 p.m. 1. Discussion of Senate Environment and Natural Resources Hearing (Scheduled for September 30) – Destination Resorts. Nick Lelack explained that the County has ten minutes to present information to the Committee on September 30, and two people from the County will speak: Nick Lelack and Commissioner Luke; as well as Tom Luersen, representing the resort industry. Commissioner Luke said that to reach the public, hearings should be held locally. It does not help to have these hearings in Salem. Commissioner Unger stated that the destination resort laws were created to help the industry to develop for economic purposes. Since then, things have changed and other issues should be considered, including potential negative impacts of traffic, water use and others. The laws are fundamentally sound, but perhaps should allow for individuals and governments to express their ideas and concerns. Commissioner Luke indicated that with the high cost of developing destination resorts, and the time it takes to get to that point, he does not seem many more being pursued. The process was changed in the mid-1990’s, making control more local, and he does not want to see local areas lose that control or input. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 1 of 10 Pages Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 2 of 10 Pages Nick Lelack stated that perhaps there is a way to not indicate certain dollar amounts, but to look at the concept instead and perhaps develop different types of resorts to meet certain standards. However, without permanent housing and golfing, and the revenue generated from those, it would be challenging for resorts to be profitable. The Commissioners invited Keith Cyrus, Chair of the Planning Commission, to comment. He said that it has become very difficult for this industry to develop and local flexibility would be helpful. Transportation impacts are a big issue to a lot of people. However, there is a tremendous financial impact that has helped to replace the lost revenue from the timber industry. Commissioner Luke noted that he could not see the State stepping in to limit the number of high tech campuses in the I-5 corridor, and they have no business telling Deschutes County how to handle its industry, which includes destination resorts. Commissioner Unger said that Thornburgh Resort has been a sore issue for some people, some of which has been misunderstood. More dialogue is needed to clarify what is real and what is not. Chair Baney joined the meeting at this time. Dave Kanner asked what order the conversation would follow. Commissioner Luke said that perhaps he should speak first, Nick Lelack could next, and Tom Luersen would speak last. He was invited since Sunriver is a resort with a lot of history. Chair Baney expressed concern about the conversation being confrontational. Commissioner Luke said that he has testified before this type of Committee previously and knows what to say and how to say it. Mr. Cyrus added that the value of resorts needs to be stressed. Commissioner Luke said that the County already has to consider the impacts on wildlife, traffic and wildlife, so he wonders what they are trying to fix. Chair Baney would like more cooperation between counties when one county wants to place a resort that will impact another county. At this time consideration of these types of impacts on neighboring counties and communities is considered voluntary. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 3 of 10 Pages 2. Discussion of Legislative Priorities for Special Session. Dave Kanner said the legal lot of record issue – federal transfer of property – is something that might be addressed. Commissioner Luke added that if 1,000 Friends and Central Oregon Landwatch could reach consensus with the County to address concerns, that would be helpful. AOC would support that. There could be some vetoes in place to override the Governor. However, the legislature will have their hands full with the budget. They will have a limited amount of time. Chair Baney said it is hard to know which direction they will go. Commissioner Unger wants to be prepared in any case. Commissioner Luke said that any cuts to budgets for law enforcement, schools and health could be catastrophic. AOC has received the information on lot of record issues. Nick Lelack stated that the cities feel that transfers to them are not as complicated since they subdivide it. The lots are established at that point. The review process is the complicated piece. DLCD, John Jinnings, said that originally DLCD would be in charge, but since then they had decided that they would not handle this. Mr. Kanner pointed out that it will be tough to get anything passed. If something requires financing, it has to be shown how that will happen. 3. Update Commissioners’ Meetings and Schedules. Commissioner Luke asked how the Assessor is answering questions about how their taxes went up on their property but the value went down. Judith Ure said that an energy efficiency grant program application was not approved (software for Community Development). Tom Anderson said that there are alternative ideas, one of which is using building department staff to advise on energy code and improvements. It is likely this would be for remodels and smaller scale projects. Ms. Ure said this is an eligible program. The deliverable would be the number of energy codes that are enforced, which is measurable. There is a job component. They do not necessarily have to show how much savings might be realized. It will not add code but will count what is currently being captured. Erik Kropp said there are other things that could be done with these funds as well, such as upgrading lighting fixtures and other energy savings activity. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 4 of 10 Pages 4. Other Items. There was a request before the Board regarding an appeal application. She asked that if an appeal went to the Board, whether there is an additional fee. Mr. Pilliod stated that for all applications for common law vested decisions, the Hearings Officer’s decision was to be final for Deschutes County; however, the Board has the ability to review any of these if it calls it up on its own. Therefore, there would be no fee. Commissioner Luke said that CEC got a vested right and wants this heard by the Board. Chair Baney noted that they have been requested by another attorney to not hear this. Apparently the Board is being asked to clarify certain information. Commissioner Luke stated that there are few of these cases out there. Mr. Pilliod said that he does not know how many were expedited at the State level from Deschutes County; the ones that involve the County consider more than three individual lots, and he believes there were approximately seven totals of these. A few are still in process with the Hearings Officer, and a few others are at the court level or in appeal. Mr. Pilliod noted that by December 31 these applicants either have to go under Measure 49 or vested rights will need to be pursued; however, this is unclear. This particular case is different in many ways. Chair Baney feels that there is a process in place and if there is a request for following this process, it should be done locally in this fashion. Commissioner Luke said that no matter which way the County rules, it will probably go to a higher court. It may make a difference at LUBA if there is a Board decision and not just a Hearings Officer’s decision. Mr. Pilliod said that in the land use context, a decision of the governing body is entitled to deference. There is no similar law for ruling from court that is known in the Measure 49 context, so the Board’s decision may not be entitled to any more deference than the Hearings Officer’s decision. Commissioner Luke stated that unlike a land use decision that may be appealed to the Board, which are decided on the law and previous decision, this is in his view this is a new area and it is hard to know what to base a decision on. Mr. Pilliod said there is no precedence and the appeal of Measure 37 and replacement with Measure 49 has complicated things, as have a handful of appellant decisions. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 5 of 10 Pages There are many questions on how these fit together, and not a lot of hopeful interpretations on how Measure 49 should be applied. They have to rely on the language of Measure 49, no matter how vague. That is the governing law to be applied in this context. The CEC property interest depends on certain easements that are in place, and a lot of properties are affected by these easements. This relatively new law has not had the benefit of a lot of court decisions. Commissioner Unger asked why the Board decided not to hear and is considering it now. Chair Baney said an attorney representing a lot of Measure 49 cases said that his clients preferred that the Board not hear these and have them go directly to the State. He felt this would save his clients some money, and the Board was still free to call up a case if it so wished. Commissioner Luke stated that there was a charge for his clients to request an appeal, and the cases are very technical. It was felt that they could get to court quicker and save the clients money. Commissioner Unger asked what the advantages and disadvantages of hearing these would be. Chair Baney stated that she feels the Board is obligated to hear it, even though it may be appealed. Mr. Pilliod said that CEC applied for the Measure 49 claim but they are not the one wanting to have it heard by the Board. Commissioner Unger noted that there may be steps to take before the Board would hear it. He thought that perhaps more information could be generated that would help with a decision later. Commissioner Luke said that in a typical land use case, more deference is given to a Board decision. However, this does not go to LUBA but to Circuit Court, who does not care whose decision it was. He is confused as to what the Board would base a decision upon. This is very technical. Mr. Pilliod said that the holder of the easement, CEC is being accused of cutting corners and not proceeding in good faith. The Hearings Officer found that they qualify, however. The standard for common law vesting is used as a barometer or measure to determine where the parties lie. There are a lot of nuances to consider. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 6 of 10 Pages Commissioner Unger said that he is uncomfortable changing the direction of the vote and hearing it. He does not feel there has been enough discussion or understanding. These usually go to LUBA. He is open but does not know what the Commissioners’ decision could add. Commissioner Luke would not want to open this up to all new evidence. Commissioner Unger stated that if they hear one, perhaps they should hear the others as well. BANEY: Move that the Board hear this. UNGER: Second. More discussion. Mr. Unger said that he would still like to be clear on the rationale of the way the Board should hear this. The Board would apply the law on these, but it is a broad thing to say. The issue or reason at hand for it to come before the Board at this time is unclear. Chair Baney said that they could end up with the same decision as the Hearings Officer. But the Board could review the same material. It is a risk of time, but it is not clear what is going to be considered at this point. The main crux is interpreting the vesting, a significant departure from Board decisions in the past. Commissioner Luke said that the Board has not made any Measure 49 decisions. Chair Baney said they claim significant departure from policy under Measure 37, but those specific issues are unknown. Commissioner Luke said that this one will not make a difference, the standards are not well defined in the law, and having the Board hear this will not make a difference or carry any additional weight than the Hearings Officer’s decision does. The Court does not consider this. Mr. Pilliod said the Order of the Board is to be the final decision of the County. Chair Baney said that most issues get appealed. She wanted to know whether a Circuit Court Judge would consider the Board’s decision with merit, more than would be considered if it were the Hearings Officer’s decision. Mr. Pilliod stated that the Board’s decision would take precedence. Commissioner Luke said the Hearings Officer’s decision will be a part of the record and will be considered as well. Mr. Pilliod said that the decision of the County would no longer be that of the Hearings Officer. The decision of the Board would not necessarily be given more deference than that of the Hearings Officer’s, however, in this case, since it is not a land use case. Neither the Courts nor the Legislature have announced such a rule. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 7 of 10 Pages Commissioner Luke said that in land use issues, the Board has a little wiggle room in its interpretation. This is based on common law, with the Board interpreting the law, but not being attorneys. Mr. Pilliod said it would require considerable background information on the origin of common law vested rights, and this itself is inconsistent in the law. The bottom line is the amount of investment before Measure 49 went into effect. It is not a subjective determination but is based on a variety of facts. One of the issues would be how much money has been invested versus the total cost of the project. This shows the commitment. Whether it was made in good faith is unclear. Some people operate through a third party, with someone else’s funds at risk. Perhaps this was done in good faith, but maybe not. Commissioner Luke said that when the applications were filed, the land and infrastructure was worth a lot more than it is today. The idea of which dollars to consider is unclear. Mr. Pilliod said that the housing market and the likely return, from when it should be measured and so on, are not defined. There is not a way to accurately estimate the cost of rebuilding a power line. Commissioner Unger stated that CEC did not follow all of the procedures through this process; they did not make application when they should have. He asked if this changes the way this has been handled. Mr. Pilliod said that he does not have a grasp of the variety of facts in this issue. The Hearings Officer would have had to address this in her decision if it was an issue. The County does not do building permits for power lines; it is regulated federally. There is interplay between State, Federal and local rules. Is it a land use permit or building permit? Measure 37 was meant to cut through land use regulations and was not considered a land use process. This is a crossroads between Measure 37 and Measure 49, as a substitute, provided. People can apply to the State for some things but no others. Of some concern is that both requests for the Board to take this matter up assert that the County has no process and needs to adopt an Ordinance to hear Measure 49 cases. This would be a land use law defining the process. When Measure 49 took affect, there was the question as to what provisions could be used in the existing Code to hear these. There was no declaratory ruling for Measure 49 as this was not for land use. There is an assertion that a new, unique process be adopted that would define how Measure 49 cases would be heard. The question is whether this process is desired or necessary. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 8 of 10 Pages Commissioner Luke said that land use laws are not clear, but there certainly is not enough direction to determine whether someone has a vested right. He does not feel it is worth staff’s time to hear these when it is so unclear. Commissioner Unger agreed, but is frustrated that the power company moved forward with improvements before the issue was even settled. There should have been a process under Measure 37 before they did this. There should be another point of law that addresses what their authority was to do this. If that was the case, would this even before the Board now. Is there compensation that needs to be considered because of their actions? Mr. Pilliod said these issues will still end up at a review court regardless. Commissioner Luke asked if what is before the Circuit Court can be considered by the Board, or is the Board to consider only whether the investment was adequate. He wondered if any Code enforcement issue is to be considered or if it is relevant. Mr. Pilliod replied that the standards are flexible, and if there is a Code violation assertion, the Board has to determine if it is relevant and what weight to give it. It may have no bearing on the value of the improvement. Commissioner Unger said the question being asked is whether there is a common vested right under Measure 49. If they have an easement on property to do this, to carry power to other places. Mr. Pilliod said there are two lines, both of which are trunk lines, and the upgrade enabled them to carry more power to other areas. How to characterize what was there before is not that simple. It was carrying full power, this just increased capacity. Commissioner Unger stated that he may be predisposing himself. He asked to speak with Legal Counsel for a few minutes. The group recessed for about ten minutes. Chair Baney said that she had a brief discussion with Legal Counsel. She asked to allow a minute for the parties’ legal counsel to speak as to why they think the Board should hear this. Martin Hansen and Mike McGann stated that there re only two issues pending. Common law easements and common law vested rights. A week ago, Judge Tiktin was already hearing a case and is ruling on it. Normally the Commissioners deal with land use and ordinances. There are 57 claims with different arguments, and the Board could end up having to hear all of them. Minutes of Board of Commissioners’ Work Session Monday, September 28, 2009 Page 9 of 10 Pages There was no ruling made that CEC acted improperly without getting permits. This has always been transmission lines. The Board can do this if they want but it might take a lot of time and effort just for this one. Some of these issues have been in court for a long time. It will go to the Court of Appeals regardless. This is not a typical land use situation. It is not under land use guidelines and is really off the track as to what the Commissioners would normally do. There is no such thing as a summary judgment on common law. If it was Measure 37, it would be closer to something the Board would review, but Measure 49 is different altogether. Matt Cyrus stated that the importance of a Board decision was not known until the Board decided to have them go directly to the State. Under a writ of review, the Judge cannot make a decision that the Board’s decision was incorrect. Therefore, this tied the Judge’s hands. Because of the inconsistencies in the Hearings Officer’s decision, they would like a decision of the Board, which will tie the hands of the Judge or any decision maker after that. He feels the Hearings Officer was incorrect in that it would be impossible to conclude CEC’s rights. Mr. Pilliod said that this decision was not concurrent with the others on the panel; it was this judge’s opinion only. Mr. Cyrus said there are other issues of good faith and things that were done ahead of time when they should not have been. It will take several days even if it is limited to what is in the record. Commissioner Luke asked if he disagrees that these are not before Judge Tiktin now. Mr. Cyrus said there is a trespass case at this time, and the issues are similar. Some overlap, some do not. Mr. Pilliod stated that both appellants, Trail Crossing and Cyrus, want this to be heard de novo. While it is true the Board could limit it to the record, both appellants want it open to new evidence as long as it is reasonably related. Commissioner Unger said that he sympathizes with this situation and is uncomfortable with the inability to have to decide on this with limited information. He is in favor of saying that this train has left the station, is in the Tiktin station and the Board should back away from it. If there was more time to learn more, it might have made a difference. Commissioner Luke stated that some were remanded back to the County and there is a chance of remand on this one as well, from Judge Tiktin. Land use is tough enough without having to interpret common law vesting.