HOUSE COMMITTEE ON LAND USE

 

 

February 07, 2005   Hearing Room 50

1:30 PM Tapes  13 - 15

 

MEMBERS PRESENT:            Rep. Bill Garrard, Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Mitch Greenlick, Vice-Chair

Rep. Robert Ackerman

Rep. Mary Nolan

Rep. Patti Smith

Rep. Mac Sumner

 

STAFF PRESENT:                  Sam Litke, Committee Administrator

Lindsay Luckey, Committee Assistant

 

MEASURES/ISSUES HEARD & WITNESSES:                                                 

                                                Measure 37 Implementation – Informational Meeting

                                                      Ben Boswell, Wallowa County

                                                      Tom Brian, Washington County

                                                      Scott Cooper, Crook County

                                                      Micheal Benedict, Hood River County

      Keith Cubic, Douglas County

      Dan Olson, Washington County

      Mark Pilliod, Deschutes County

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 13, A

002

Chair Garrard

Calls the meeting to order at 1:34 PM and opens an informational meeting on Measure 37 implementation.

MEASURE 37 IMPLEMENTATION – INFORMATIONAL MEETING

005

Ben Boswell

Commissioner, Wallowa County.  Reviews Wallowa County’s draft ordinance to address Measure 37 implementation issues.  Some specifics include:

  • Similarity to State Administrative Rule in anticipation of joint filing at state and county level
  • Burden of proof on claimant

Has questions on owners with partial interest in claims process.

061

Chair Garrard

Asks if Wallowa County claims request the claimant’s desired compensation.

063

Boswell

Believes it’s a 2-3 step process and that a determination on compensation should be made before considering regulatory relief.

068

Chair Garrard

Clarifies that they will deny compensation before considering other 3 choices.

072

Boswell

Replies they may accept compensation or move on to another choice but that the process is still uncertain.  Continues description of process.

089

Boswell

Notes addition of clause relating to “moment of time” premise.

093

Rep. Smith

Questions if claims denied because of incompleteness can be re-filed.

095

Boswell

Answers affirmatively.

099

Boswell

Continues, stating Wallowa County’s position that regulatory relief is transferable.

103

Chair Garrard

Asks what the decision to allow transferability is based on.

106

Boswell

Responds that the decision is based on the “common sense approach to Measure 37” and their legal counsel advice. 

109

Boswell

Continues detailing ordinance citing their:

  • Allowance to extend 180 days
  • Willingness to coordinate with other jurisdictions
  • Requirement for an appraisal only if they decide on compensation
  • Intention to set up compensation fund
  • Proposed $200 review fee

135

Rep. Smith

Asks on what basis they decided to allow for extensions past 180 days.

137

Boswell

Responds that it is “common sense”.  Elaborates that it is in the claimant’s best interest to file a valid claim taking longer than 180 days if necessary.

147

Rep. Greenlick

Questions his approach when “common sense” conflicts with law. 

153

Boswell

Responds that if explicitly stated, they will follow the law but lacking other guidance, they will use their discretion.

158

Rep. Greenlick

Responds that the 180 day limit does not seem ambiguous.

162

Boswell

Believes he may have been misinterpreted and reads pertinent lines from ordinance.

166

Rep. Greenlick

Acknowledges answer, stating his previous impression that they would go on with or without the claimant’s agreement. 

170

Boswell

States the County’s desire to review completed claims and their intention to enter into negotiations with claimant to extend deadline if necessary.

173

Rep. Sumner

Asks how the $200 fee was determined and if it is adequate to do the required work.

178

Boswell

Responds that the fee was chosen arbitrarily and that it is not enough.

202

Rep. Anderson

Asks how many applications they’ve had and an estimation of time needed to investigate.

207

Boswell

Replies that they have three applications but are uncertain of how much time is required.  Reviews content of claims and notes lack of guidance in proceeding with claims.

218

Chair Garrard

Asks Boswell for the top three actions he’d like to see come from a state agency or the legislature in regards to Measure 37.

223

Boswell

Replies that he’d like clarification on:

  • The “point in time” question of reapplying repealed legislation and
  • Transferability of waivers

234

Rep. Nolan

Refers to Boswell’s earlier statement that he believes transferability is allowed for under Measure 37 and questions what he’d like to see changed.

240

Boswell

Responds that he may have been misunderstood but that his intent was to say that lacking other guidance they are “leaning towards agreeing with” the option of transferability.

253

Tom Brian

Chairman, Washington County Board of Commissioners.  Gives an overview of Washington County.  Reports that they have about 60 claims to date and believes they will receive more than most counties.

286

Brian

Describes where the claims are being filed and what the intentions for the land are.  States that the majority wish to build one to three homes on rural farm and about one third wish to do subdivisions.  

312

Brian

Quantifies cost of compensation for claims at $55 million while conceding that the county does intend to compensate.  Remarks that most

  • claims appear to be valid,
  • claims will require a companion state claim,
  • claimants don’t know what specific regulation they would like to waive and
  • claimants are not represented by counsel.

335

Brian

Notes that while they are anticipating legislative action and proceeding slowly.

360

Brian

Outlines claims process, explaining that a fee will not be collected for claims but will be combined with the permit process. 

405

Brian

Comments that they are encouraging concurrent claim and development application filing.  Remarks on uncertainty of the need to waive something if one has not yet been “denied” for a certain use.

TAPE 14, A

012

Brian

Reports that their ordinances are in draft form.  Lists some major issues of concern including:

  • ·         Transferability
  • ·         Liability to 3rd parties
  • ·         Locally adopted ordinances to implement federal environmental provisions
  • ·         Sewer and water support

070

Brian

Advocates for standardization in process.

083

Sumner

Refers to earlier quote of $ 55 million in compensable claims. Asks if there are estimates on how counties’ tax bases would be enhanced if these are approved.

087

Brian

Responds that research has not been done.  Adds their openness to working with claimants without becoming legal counsel.  

115

Brian

Gives his opinion that some people are waiting until legislative action to file claims.  Speculates some fairly major developments in forest land. 

119

Rep. Anderson

Asks for clarification on the liability issue and for Brian’s opinion on the public opinion of transferability.

121

Brian

Responds that a 3rd party liability problem could result from waiving rules and regulations in response to a claim and then having a 3rd party complain. 

138

Brian

In response to the second question, he describes his process for determining “what people meant” including weighting if there was adequate public discussion, the amount of money on each side and the results of the vote.  Concludes that he believes people were ultimately looking for property rights. 

167

Rep. Anderson

Asks if the sewer and waste problem Brian discussed earlier couldn’t be handled with existing Department of Environmental Quality regulations.

173

Brian

Describes the uniqueness of Washington County and concedes that the problem is not applicable in claims received thus far.  

194

Rep. Greenlick

Comments that the value of land would increase if allowed to build houses on their farmland.  Notes the deferment of property taxes for agricultural land.  Asks if it is the expectation of the county to have claimants pay taxes based on residential values as opposed to agricultural value for the duration of ownership.

211

Brian

Responds that they have not taken a position though it is an emerging issue.  Comments on some hypothetical situations.

233

Rep. Greenlick

Asserts that if the claimant is filing that the land should be residential and has been since 1975 they should be subject to residential property taxes from 1975.

241

Brian

Adds to the question noting that as it stands, owners of farmland are taxed for one acre and pay deferral on the rest.  Responds that he has no answer to the question of a “catch up” on deferral.  Believes there is a difference between a subdivision and building a second home on a farm.

262

Rep. Ackerman

Asks if the process requires an appraisal from the homeowner.

265

Brian

Answers no and describes their process.

282

Chair Garrard

Asks what Brian’s three priority issues concerning Measure 37 are.

290

Brian

Answers that his issues include the following but also defers to Legal Counsel Dan Olson who will testify later. 

  • Liability of 3rd parties
  • Standardization

316

Chair Garrard

Asks if Brian as a County Commissioner would be happy to see things go through circuit court.

320

Brian

Responds no.  Asks if he’s referring to appeals or in answering all these questions. 

323

Chair Garrard

Replies that he’s referring to the appeal process.

327

Brian

Says his answer depends on where the appeals would go.  Believes that the court system would resist and would prefer to put court’s time to criminal and civil issues.  Suggests a hearings officer approach. 

360

Chair Garrard

Comments he’s asking because there are rumors of bills to address these issues. 

369

Scott Cooper

Crook County.  Submits written testimony, his county’s ordinance and court case information (EXHIBIT A).  Reports on the number of claims his county has received, their likelihood of being valid, and the types of requests, noting all have dealt with partitioning and subdivisions (EXHIBIT A, Page 1).

398

Cooper

Describes claim process reading from (EXHIBIT A, Page 2).  Comments on risk taken by the county and the possibility of being fined by circuit courts.  Cites this issue as their primary issue to be clarified. 

410

Cooper

Continues reading from (EXHIBIT A, Page 2).  Describes their hearing process and “fall back procedure” in case of error by hearings officer.   

TAPE 13, B

010

Cooper

Encourages concurrent hearing for claims and development plans.  (EXHIBIT A, Page 3).  Explains why they have no upfront fee.

044

Cooper

Summarizes the initial public response, misconceptions and actions regarding Measure 37 (EXHIBIT A, Page 3).

058

Cooper

Notes that during the interim they filed a lawsuit under ORS 33.710 to “seek an opinion as to the legality, regularity and correctness of a local ordinance” and references the paperwork associated with it (EXHIBIT A, Page 18).  Continues summarizing (EXHIBIT A, Page 3) with explanation of how the county would proceed if the court rules against them.

076

Cooper

Gives list of six amendments desired from the legislature at this point (EXHIBIT A, Page 3-4) that would:

  • give local government authority to establish reasonable claims procedures
  • specify a uniform methodology for determining value
  • address the transferability of waivers
  • address whether a partion and subdivision constitutes a “use”
  • clarify the role of circuit court in seeing appeals
  • give flexibility to local jurisdictions

109

Rep. Greenlick

Gives hypothetical situation of filing an incomplete claim and asks if it would be valid.

114

Cooper

Responds that it will be recognized as incomplete.

139

Micheal Benedict

Planning Director, Hood River County.  Reports that his county passed a resolution, not an ordinance, in response to Measure 37.  Discusses fees, validity of claims and options for public hearings.  Notes intention not to pay compensation but will allow 3rd party compensation.  Also describes the process of issuing ministerial denial.

164

Benedict

Recounts Hood River County’s narrower victory and comments that while they provide “full customer service” they don’t help to fill out claims as this has been deemed legal advice.  Describes the information made available to the public. 

177

Benedict

States their encouragement for claimants to file with the state concurrently.  

188

Benedict

Describes the number of claims and estimated monetary value, stating that all claims are for partitions or subdivisions.

194

Benedict

Asserts that their county will proceed by assessing risk.  Notes that legal fees could be quite substantial for a small county.

202

Benedict

Issues main questions including:

  • Transferability
  • Role of circuit court appeals and legal fees
  • Federal laws and endangered species acts

224

Benedict

States their plan to give public notice using the same standards as with land use decisions.  Points to a new requirement from Department of Administrative Services to provide lists and the extra burden their office would incur.

235

Rep. Smith

Asks if the eight claims they’ve had have also applied to the state as recommended by the county.

239

Benedict

Is unsure, but believes some have.

242

Rep. Smith

Refers to testimony from the state on the number of their claims and wonders about the possibility for duplication of the number of claims.

252

Keith Cubic

Planning Director Douglas County.  Submits packet containing local observations about implementing Measure 37 (EXHIBIT B).  Reviews preliminary concerns from the county including public will, protection of local planning and avoidance of land use decisions.

274

Cubic

References (EXHIBIT B, Page 4).  Describes 3 claim scenarios and their outcomes.  Notes misunderstanding among the public.  Comments that the term “waiver” is not in the law, rather “modify”, “not apply” or “remove”.

300

Cubic

References a list of “Ballot Measure 37 Interpretive Issues” (EXHIBIT B, Page 5) and highlights two areas their county deem necessary to address in order to successfully implement the measure including:

  • The essentiality to have a Measure 37 procedure that requires adequate information. 
  • A “bare bones” approach to an ordinance. 

310

Cubic

Points to a copy of Douglas County’s claim form (EXHIBIT B, Page 6) and states it bears similarities to the state form.    Notes that the greatest difficulty is coming from justification or documentation of reduction of fair market value in part because the appraisers in the area will not take these claims.

337

Cubic

Highlights Douglas County’s implementing ordinance (EXHIBIT B, Page 11).  Notes that at their public hearing for the ordinance, two sections (provisions for notice and mitigating standards) were delayed adoption.

374

Cubic

Describes unique elements of Douglas County’s claims process.   (EXHIBIT B, Page 15).  Comments that in practice a waiver will be granted to all valid claims in lieu of compensation. 

390

Cubic

Continues description of claims process and who has the authority in reviewing and investigating claims.

406

Cubic

Comments on dual claims with the state.

TAPE 14, B

009

Cubic

Mentions that they charge no application fee, but that there is a $350 archival research fee unless claimant wished to undertake the research themselves.

015

Cubic

Reports that they’ve received three claims of which one will be denied and two will likely be approved.  Also reports that six inquiries have been diverted to file land use claims.

033

Cubic

Reiterates the difficulty of getting appraisals.

048

Cubic

Offers a solution and qualifies his remarks as his professional opinion and comments on long history in Oregon land use.  Believes that the significant reasons Measure 37 arose are the following:

  • Absence of “dwellings by right”. 
  • “unyielding statewide minimum parcel size”.
  • difficulty with exceptions.

065

Cubic

References (EXHIBIT B, Page 20) as the six key issues related to possible legislative change and points out his top three:

  • Waiver transferability
  • Statute of limitation on claims
  • Clarification of exemptions

100

Cubic

References (EXHIBIT B, Pages 21-22) as a list of questions developed by the Association of Oregon Counties Planning Directors for the Department of Land Conservation and Development.

104

Rep. Nolan

Asks if it was his opinion that a regulation would be considered applied the moment it became effective while one might argue that it is not effective until someone seeks a permit.

110

Cubic

Agrees and elaborates that it is a flaw and would like the regulation to be considered applied when it is adopted.

115

Rep. Nolan

Asks if there is a property tax assessment applied to the land based in part on zoning, specifically Exclusive Farm Use (EFU) zoning.

122

Cubic

Answers that EFU zoning is specified in ORS 215.  Explains that normally one does not pay tax penalty until use is changed.  Also notes that there is a 10-year maximum penalty phase. 

137

Chair Garrard

Asks how he would handle a land use application when the use is  prohibited by state and county law.

142

Cubic

Responds that if the county eventually waived, the county would not issue a building permit until the state waived also. 

160

Dan Olson

County Counsel, Washington County.

170

Olson

Enumerates issues of legislative concern, broadly, a definition of minimum requirements under the ordinance, specifically:

  • Would like to require all owners to sign application 
  • Would like claimant to identify regulations they want waived

190

Olson

Reports Washington County’s policy of free application and encouragement of conjoining the development review process with the claim process.  Continues with specific issues to be clarified.

  • ·         Definition of enforcement

204

Rep. Smith

Asks what constitutes enforcement or application when a claimant has been given verbal denial but never a written notice.

213

Olson

Responds that a verbal exchange may be enough.  Elaborates on possible options for clarification.

227

Olson

Continues with the question of what local government can require property owners to do, if anything, before a court proceeding.  Comments on cooperativeness of those with and without legal counsel. 

252

Olson

Gives three choices he sees to address the local process issue:

  • ·         Permit local government to adopt “reasonable” standards
  • ·         Require by state law a specific process

Or he believes the simplest would be to:

  • ·         Require all information for the circuit court proceeding to be on the record.

281

Olson

Believes Measure 37 should specify where the claim must be filed.

295

Olson

Believes some exceptions need clarifying including:

  • A distinction that flood plain ordinances are health and safety regulations.
  • The ability to delegate from the governing body

310

Olson

Comments on further uncertainties including:

  • the provision which allows for payment if the case has not been seen after 2 years.
  • The status of prior land use rules
  • Issuing builder’s permits without a waiver
  • Legal status of the waiver

349

Chair Garrard

Comments on the apparent need for standardization but inclusion of local flexibility.

356

Olson

Responds that it is also for the benefit of the property owners.

359

Mark Pilliod

Legal Counsel, Deschutes County.  Submits a spreadsheet outlining Measure 37 claims in Deschutes County (EXHIBIT C).

382

Pilliod

Highlights the number of claims (17) received, summarizes their proposed use and speculates on the claimants intent (EXHIBIT C).

399

Pilliod

Reiterates previous speakers’ testimony about uncertainty.  Comments on Deschutes County ordinance and their experience in having incomplete claims. 

TAPE 15, A

030

Pilliod

Elaborates the desire to have a completeness of the project in mind when evaluating claims rather than piecemeal claims filed.

039

Pilliod

Concludes that if there is not legislative action, decision making will be left to the court.  Encourages the committee to consider the future of land use and enacting any future land use planning.

065

Chair Garrard

Asserts that the legislature has made attempts which have been denied along the political process.

068

Rep. Smith

Asks what percentage of Oregon is zoned EFU.

073

Chair Garrard

Estimates around 70%.

076

Rep. Smith

Notes that with the high percentage, it is not surprising that most of the claims are there. 

079

Pilliod

Comments that vast majority of Deschutes County land is held by state and federal government.

085

Chair Garrard

Gives a hypothetical example in which a high water table would prohibit someone from building a house on EFU land, and asks if this would be the outcome.

090

Pilliod

References Claims 5 and 6 (EXHIBIT C) which were claimed disapproved septic and comments on the time of measurement.  Measure exempts out certain types of regulations including sanitary regulations and submits that if they can’t satisfy them they shouldn’t be entitled to a residential permit.

107

Rep. Ackerman

Asserts that it is essential to have a certified appraisal.

116

Rep. Greenlick

Points out that most claims are rural subdivisions not rural farmland residence. 

118

Pilliod

Concurs.

132

Chair Garrard

Adjourns the meeting at 3: 31 PM.

 

 

EXHIBIT SUMMARY

 

  1. Measure 37 Implementation, written testimony, Scott Cooper, 24 pp.
  2. Measure 37 Implementation, local government observations, Keith Cubic, 25 pp.
  3. Measure 37 Implementation, Deschutes County Claims, Mark Pilliod, 1 p.