HOUSE COMMITTEE ON LAND USE

 

 

June 10, 2005 Hearing Room 50

1:30 P.M. Tapes  126 - 129

 

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:

HB 3120 – Work Session

 

 

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 126, A

002

Chair Garrard

Calls the meeting to order at 1:28 p.m., carries over SB 863 until Monday June 13, 2005 and opens a work session on HB 3120.

HB 3120 – WORK SESSION

013

Chair Garrard

Reports on a meeting with the Governor’s office on Measure 37 (M37) and proposes areas of the committee’s focus as: claims process, judicial review, transferability, review process of land use system over the interim, separation of  powers, the urban growth boundary (UGB) fringe area, and the compensation issue as part of the interim directive.

030

Rep. Ackerman

Lists his concerns as the claims process, judicial review and transferability.

 

Chair Garrard

Suggests the committee decide which set of amendments they want to use as the vehicle.

045

Rep. Greenlick

Suggests using the language of Measure 37.

 

Chair Garrard

Verifies he means M37.

 

Rep. Greenlick

Confirms this and explains.

057

Rep. P. Smith

Notes qualms with using the language of M37 as a starting point.

 

Rep. Greenlick

Responds that the other amendments use M37 language as a starting point.

067

Rep. Anderson

Asks for clarification of the suggested process.

 

Rep. Greenlick

Elaborates on the suggestion to create an omnibus amendment.

079

Rep. Nolan

Notes that all the amendments start with inserting M37 language into ORS 197 and that it creates a framework.

 

Rep. Anderson

Raises concern about the process.

090

Rep. Greenlick

Comments on the process.

 

Rep. Nolan

Notes timeline and suggests adopting an amendment rather than starting from a blank slate.

 

Chair Garrard

Agrees and suggests picking either the -1 amendments or the -3 amendments as a basis to move forward.  Asks if Shetterly has a recommendation for which amendments to choose.

109

Lane Shetterly

Director, Department of Land Conservation and Development (DLCD).  Concurs that the amendments provide a template and commends the replacement -3 amendments as the product of substantial discussion among the work group.

 

Rep. Greenlick

Asks if (EXHIBIT A) is the latest document.

 

Litke

Responds affirmatively.

145

Chair Garrard

Asks if there is anything more recent than the amendments to the amendments (EXHIBIT A).

 

Jon Chandler

Oregon Homebuilders Association.  Responds that the next version is not yet available.

 

Chair Garrard

Asks if the -3 amendments would be a good place to start.

 

Shetterly

Suggests the conceptual amendments.

153

Rep. Nolan

Asks Chandler if using the -3 amendments to frame their discussions would be useful.

 

Chandler

Responds affirmatively.

 

Shetterly

Agrees.

 

Chandler

Comments their discussions are helpful for further fine-tuning the language.

175

Rep. Greenlick

Asks about using (EXHIBIT A).

 

Shetterly

States the document is complete.

 

Chair Garrard

Suggests using the -3 amendments in LC form.

200

Litke

Comments that the new document would replace the -3 amendments (EXHIBIT A).

 

Shetterly

Adds that the rewritten form is more refined.

 

Chandler

Adds that the newer version is more up to date and includes more concepts.

 

Chair Garrard

Concludes that (EXHIBIT A) is the best place to start.

230

Rep. Ackerman

Asks if the replacement -3 amendments contain all the issues they wish to discuss.

 

Shetterly

Responds they are the most complete.

240

Rep. Nolan

Discusses possible ways the committee can proceed.

 

Chair Garrard

Gives his intention on the procedure.

263

Rep. Greenlick

Asks about the changes made to the language of M37.

 

Shetterly

Explains that the language stricken is language originally in M37 and that underlined are additions.

 

Rep. Greenlick

Confirms the process.

 

Chair Garrard

Calls Klein forward.

 

Rep. Greenlick

Verifies that after Page 4, they are all additions.

 

Shetterly

Confirms that everything after Section 1 (13) is new text.

 

Rep. Greenlick

States that Sections 3 - 18 are additions. 

300

Rep. P. Smith

Asks what the process will be for additions or deletions.

 

Chair Garrard

Responds that if there if not consensus they will vote.

 

Rep. Nolan

Agrees and notes the importance of not discussing pieces exclusively as they are interrelated.

 

Rep. Greenlick

Comments on possible concessions.

345

Klein

Concurs and notes that ideas embodied in some sections rely on others. 

 

Chair Garrard

Asks if he is the main drafter.

 

Klein

Responds he is one of a group but the only one present.

370

Chair Garrard

Commences the discussion on the replacement to the -3 amendments (EXHIBIT A).

 

Rep. Greenlick

Remarks on individual amendments.

 

Chair Garrard

Remarks that the committee members are open to submit amendments at any time.

 

Rep. Greenlick

References the Chair’s proposed areas of focus and suggests pointing out which sections deal specifically with those issues.

 

Chair Garrard

Responds that the -3 amendments have a claims process and judicial review that are generally agreed upon.

TAPE 127, A

005

Chair Garrard

Asks Klein for an overview of  Section 1 (EXHIBIT A).

 

Klein

Gives an overview of Section 1 and notes the addition of a date that would apply different provisions to claims filed after the date.

 

Chair Garrard

Asks why there is a distinction between old and new M37 claims.

040

Klein

Gives reasoning for the distinction.

 

Chair Garrard

Suggests that addressing Section 1 now is premature.

 

Klein

Concurs that Section 1 would be better addressed later.

 

Rep. Greenlick

Makes suggestion for a date if they decide to include that provision.

 

Chair Garrard

States they will allow Don Schellenberg to address the committee on the -6 amendments (EXHIBIT D).

 

Rep. P. Smith

Asks if in Section 1, a person has a choice of which date to file under.

092

Klein

Responds that if your claim is filed after March 15 you must refile, and if filed prior to March 15, you would have the option to withdraw and refile the claim.

 

Rep. P. Smith

Asks about the fee.

 

Klein

Responds that this does not address how fees would be handled.

092

Don Schellenberg

Oregon Farm Bureau.  Submits a rough draft of the -6 amendments (EXHIBIT C) and the -6 amendments (EXHIBIT D).  Points to the last page of (EXHIBIT C) which has a listing of the ORS chapters effected.  Notes that the -6 amendments are based on HB 3120-1 amendments.  Points out changes on Page 2, line 24 through Page 3, line 5 (EXHIBIT D) which add exemptions to M37 claims. 

 

Chair Garrard

Asks about his use of the term “inadvertent” M37 claim.

130

Schellenberg

Clarifies his point.  Discusses Page 5, lines 8-11 on transferability.  Moves to Page 13 noting the pages inbetween stay the same.

 

Rep. Greenlick

Verifies he means the same as the -1 amendments.

 

Schellenberg

Confirms this.  Notes their deletion of the agencies ability to waive statute.

 

Chair Garrard

Asks why they made this change.

 

Schellenberg

States their interest in preserving the separation of powers. 

160

Rep. Anderson

Asks what the deletion was.

 

Schellenberg

Replies they have deleted a section from the -1 amendments related to the separation of powers issues.  Refers to new language proposed on Page 17, which was HB 3349.  Notes a mistake in drafting in Section 12 and asks that it be deleted.

 

Rep. Greenlick

Verifies his request.

 

Schellenberg

Explains his request.

 

Rep. Anderson

Verifies the deletion. 

200

Schellenberg

Confirms and discusses Sections 14 – 16 on Pages 18 -19 related to limiting water use. 

 

Chair Garrard

Asks if the city is the only governing body he is concerned with in Section 16.

 

Schellenberg

Responds that city approvals are dealt with in Section 16 and county approvals are dealt with in Section 14.  Explains that this section was a part of SB 1037.

 

Rep. Anderson

Suggests that areas limited in ground water currently would have also been limited in ground water in the past.

 

Schellenberg

Replies maybe not.

 

Rep. Anderson

Expresses concern that those who have had their water rights retracted and now their prohibited them from building.

 

Schellenberg

Replies that he would not be concerned about single family dwellings but are concerned about housing developments.

250

Chair Garrard

Asks if this situation might create another M37 claim.

 

Schellenberg

Responds he is uncertain.

 

Rep. Greenlick

Asks if there are sections of importance to Schellenberg that he did not explicitly talk about.

268

Schellenberg

Comments on their process.

 

Rep. Greenlick

Restates his question, asking if there are parts of the -1 amendments he feels are important to keep in the final amendments.

 

Shellenberg

Lists claims and judicial review sections as key areas.

 

Rep. Greenlick

Comments on information in the -1 amendments that may not be covered in the -3 amendments.

 

Schellenberg

Responds he has not studied the distinctions between the -1 and -3 amendments to comment.

310

Chair Garrard

Directs the committee back to a discussion of the -3 amendments.  Verifies that the committee has agreed to eliminate Section 1 of the -3s.

 

Rep. Nolan

Comments they put Section 1 at the end of the discussion.

 

Rep. Greenlick

Reviews the question before the committee.

330

Chair Garrard

Asks Glenn Klein to address Section 2.

 

Glenn Klein

Harrang Long.  Explains that Section 2 is technical.

 

Chair Garrard

Asks if Section 2 should be included in the new bill.

354

Klein

Responds affirmatively.

 

Rep. Greenlick

Asks where the rest of the M37 language is currently located.

 

Klein

Responds they are also in ORS 197.

363

Chair Garrard

Asks Klein to address Section 3.

 

Klein

Explains that Section 3 will revise definitions within BM37.

375

Rep. Anderson

Asks if Section 3 (1)(a) was included.

 

Klein

Replies that they were all included and comments on (c) and (d).

 

Rep. Anderson

Verifies that marriage lines were included in the definition of “family owner”.

 

Klein

Confirms this and notes it was addressed in M37.

 

Rep. Greenlick

Asks how the definition of “family member” in M37 and the new amendments differ.

 

Klein

Responds it is not intended to be substantively different but that (c) and (d) clarify the language of M37.

TAPE 126, B

005

Rep. Greenlick

Asks if Section 3(1)(a) and (b) are identical to the text of M37.

 

Klein

Confirms this.

 

Rep. Greenlick

Verifies that Section 3(1)(c) and (d) are explications of the text of M37.

 

Klein

Confirms this.  Adds that there have been further adjustments to the amendments and mentions one addition to this section.

015

Chair Garrard

Asks when the newer version will be available to the committee.

 

Klein

Replies Monday June 13, 2005.

031

Rep. Ackerman

Points out that the definition of family member does not include family trusts and suggests inserting language in this section to address that point.

 

Chair Garrard

Comments on the ambiguity around family trusts.  Asks if it is the intent of the committee to allow family trusts in this definition.

 

Rep. Nolan

Expresses interest in seeing the impact of the addition of Sections 3(1)(c) and (d) and asks for an example of ownership structures that would be allowed now that would not have been under the original language.

056

Klein

Responds that it is outside of his area of expertise but offers to return with the information.

 

Rep. Nolan

Responds she cannot respond to the Chair’s question without knowing if it will expand the group eligible for M37 claims.

 

Chair Garrard

Comments on the distinction between “clarifying” or “changing” the measure.

075

Rep. Greenlick

Asks why a business wholly owned by the owner is included under the definition of family member.

 

Klein

Elaborates on the definition of a wholly owned business.

 

Rep. Greenlick

Asks why it is included as a family member.

 

Klein

Explains that M37 currently defines family member to include “legal entity owner by any one or combination of these family members or the owner of the property” and explains their intent to clarify.

 

Rep. Greenlick

Comments that the original language seems more clear.

097

Shetterly

Starts to explain.

 

Chair Garrard

Discusses creation of an LLC.

 

Rep. Greenlick

Expresses dissatisfaction with the new language.

 

Klein

Reports that they will postpone this discussion and come back to it.

116

Rep. P. Smith

Suggests putting language on LLC and family trust in Section 3 1(b).

 

Rep. Greenlick

Asks what is ambiguous in the original language of M37 on this section.

 

Rep. P. Smith

Comments on the problem of proving ownership.

 

Rep. Ackerman

Comments.

 

Rep. Greenlick

Comments.

 

Rep. P. Smith

Asks if the problem with this issue is date of ownership.

134

Rep. Sumner

Reads the original text of M37 and notes its inclusion of “interest therein”.

 

Rep. Ackerman

Disagrees with his interpretation.

145

Rep. Anderson

Asks why there are different definitions within different sections and suggests consolidating the definitions.

 

Klein

Explains the reasoning behind including new definitions.

162

Rep. Ackerman

Submits that if they believe that the trust entity is implicit within the definition of a business entity or a business entity owned by the owner, why not set forth what they mean.

 

Rep. Nolan

Notes this is why she asked for the examples and elaborates.

 

Klein

Replies he can back to the committee with their information.

181

Rep. Ackerman

Asks why the word “notarized” is included in Section 3(3).

 

Shetterly

Relays that issue is currently being revised.  Makes comments on variations of land sale contracts.

 

Rep. Ackerman

Agrees with Shetterly and suggests modifying the language to say land sale contract that has been recorded pursuant to ORS 93.640.

218

Klein

Points out a concern with that suggestion and gives his own approach.

 

Rep. Ackerman

Notes an issue he will bring up later.

243

Rep. Ackerman

Asks about the definition of “property” on Page 5, Section 3(4). 

 

Klein

Explains the reason for removal of “or interest therein” in this section.

 

Rep. Ackerman

Wonders why “interest therein” was omitted in the definition but appears other places.

 

Chair Garrard

Asks the committee if they want to have “any interest therein” added.

 

Shetterly

Explains that “interest therein” expands the definition significantly.

 

Klein

Adds this is connected to another section on claims process requiring all owners to sign on a claim.

300

Chair Garrard

Comments on the possible interpretations of “interest” therein. 

 

Shetterly

Explains the difference. 

 

Rep. Nolan

Clarifies the distinction.

 

Chair Garrard

Asks if Rep. Ackerman agrees with the definition.

 

Rep. Ackerman

Agrees with the consensus.

323

Rep. Ackerman

Asks if Section 3 (6)(a) on Page 5 – 6 is consistent with M37.

 

Klein

Explains the distinction between the language in the draft and M37. 

382

Rep. Nolan

Gives a hypothetical example about trying multiple options until they receive an approved use. 

 

Klein

Explains that that would not be allowed.

TAPE 127, B

010

Rep. Nolan

Verifies that some onus is on the government to help find an approved use.

 

Shetterly

Notes this allows issues to be resolved in a single claim.

 

Rep. Ackerman

Suggests this is an extension of M37 by allowing an alternative use.

024

Shetterly

Explains that it is not an expansion but a clarification of what they are currently doing.

 

Rep. Ackerman

Comments it seems to be an expansion.

039

Klein

Explains their intent to clarify.

 

Rep. Ackerman

Elaborates on his interpretation.

 

Klein

Clarifies what would be allowed under the provision.

 

Rep. Greenlick

Notes the distinction between the list under “land use regulation” in Section 3(2) as compared with the original language in M37 and asks if it is an explication of the original.

 

Klein

Responds it would depend on how the courts would interpret the existing definition.

 

Rep. Greenlick

Replies that they are creating statute, so it would not matter.

 

Shetterly

Responds that whether it is an expansion or not would be dependant on the courts’ interpretation.

 

Klein

Explains his interpretation of the existing language and gives reasons for inclusion of other subsections.

 

Rep. Greenlick

Expresses concern with knowing which of the subsections are not straightforward interpretations.

107

Klein

Offers to bring a comparison into the committee at the next meeting.

112

Chair Garrard

Notes intention to finish going through the -3 amendments today.

130

Dave Hunnicutt

Oregonians in Action.  Responds to Rep. Greenlick’s last question and comments that the definition of land use regulation in the new draft is a significant narrowing of the original definition.

 

Klein

Mentions information to be brought to next meeting.

150

Chair Garrard

Asks for direction on whether or not to continue going through the draft.

153

Klein

Suggests the committee to go through Sections 5 and 6 (Page 8 – 12) on claims process and judicial review and commends them for adoption within the new bill.

182

Rep. Greenlick

Asks if Section 5(4) deals with the question of filing claims at local and state levels.

 

Klein

Responds that the property owner must file with both levels and gives reasons why.

 

Rep. Greenlick

Wonders why claimants should have to file with both.

 

Shetterly

Poses the policy reasoning from either side and supports filing with both.

 

Rep. Greenlick

Notes this issue as one to address.

224

Shetterly

Explains further reasoning for separating the claims.

 

Rep. Ackerman

Asks about filing claims with local and state entities.

239

Hunnicutt

Asks for clarification of the question.

 

Rep. Ackerman

Restates his question, asking if one were supposed to file both with the state and county but only filed with the county and received a waiver if it would apply.

 

Hunnicutt

Asks under the existing measure or the proposal.

 

Rep. Ackerman

Replies under either.

 

Hunnicutt

Explains what would happen in this situation. 

280

Rep. Greenlick

Reviews the issue of taking claims to both state and county levels.

 

Chair Garrard

Notes assumption that the panel is in agreement.

 

Shetterly

Comments that this is not a controversial issue.

 

Hunnicutt

Explains reasoning for filing at both levels.

 

Chair Garrard

Asks if an option to simplify the process was considered.

 

Hunnicutt

Gives explanation against allowing local regulations to be waived by the state and vice versa.

336

Chair Garrard

Asks if the people are better protected this way.

 

Shetterly

Responds that property owners are better protected by applying at both levels.

344

Rep. Ackerman

Suggests that a filing at the county level would also register as being filed with the state.  Gives an example of this type of filing. 

 

Rep. Greenlick

Agrees with this suggestion and elaborates.

 

Shetterly

Responds that they discussed these suggestions and elaborates on possible problems with this method.  Asserts the proposed dual filing process is simpler.

 

Rep. Sumner

Comments to the committee that this testimony is consistent with information from the beginning.

TAPE 128, A

002

Rep. Greenlick

Disagrees with the proposed process.

021

Klein

Elaborates on other difficulties with a single filing system.  Notes their decision to have claimants outside the UGB file in both places.

 

Rep. Greenlick

Asks about those inside UGBs.

 

Klein

Responds that those inside the UGB will not likely have to file with the state and explains why.

048

Chair Garrard

Asks about the timeline of 180 days.

 

Shetterly

Comments on their decision about the timeline.

 

Klein

Explains how the timeline would function.

068

Rep. P. Smith

Asks if the 180 days starts when the county deems a claim complete.

 

Klein

Believes it is the same as the existing land use process.

 

Hunnicutt

Explains the timeline and when the claim would be deemed complete.  References Section 5(7).

086

Rep. P. Smith

Asks for the location of a provision.

 

Hunnicutt

Reports it is (a) on Page 10.

094

Rep. P. Smith

Describes a land owner who cannot get a complete application and wonders if their claim has started or not.

 

Hunnicutt

Responds it will depend and elaborates.

 

Chair Garrard

Asks if uniform application of this section across the state would eliminate the capability of counties to use delay tactics.

130

Hunnicutt

Comments that the section will specify what is needed to file a complete claim.

 

Chair Garrard

Asks if there is language to add that make it more explicit.

 

Hunnicutt

Replies he does not think they need to.

 

Klein

Agrees.  Reviews the timeline process when a claim filed is deemed incomplete.

 

Rep. Greenlick

Gives a hypothetical example of an incomplete claim and asks if they can wait until the timeline has passed and take their claim to court.

162

Klein

Replies that if you fail to submit the fee, your application is not complete.

 

Rep. Greenlick

Verifies that if you refuse to pay the fee, you cannot take the claim to court after 180 days.

 

Klein

Confirms this.  Adds an example of when the government must make a decision.  Notes in the judicial review provisions, the court proceeding is based on the record submitted to the government.

184

Rep. P. Smith

Asks about appraisals and describes the requirements of one county to require two certified appraisals for complete claims. 

 

Klein

Replies that this draft would not require claimants to submit appraisals.

 

Hunnicutt

References the criteria contained on page 9 Section 5(5)(a) - (i) and submits it will resolve many of the issues discussed.

214

Chair Garrard

Expresses appreciation of the panel’s patience. 

 

Rep. Greenlick

Suggests problems with county assessing damages without appraisals and the lack of record for the courts.

 

Klein

Gives an exception of when the court can make a decision that is not based on the record.

261

Hunnicutt

References Section 5 (5)(h) which requires evidence of reduction of fair market value of the property.

 

Rep. Greenlick

Comments on an extreme case.

 

Hunnicutt

Reports that the process is designed to prohibit misuse from either side.

 

Rep. P. Smith

Gives suggestions to add language related to the 30 day notice and about listing regulations.

306

Klein

Responds that they have tried to address the issue of how regulations are listed in Section 5(5)(f) on Page 9 and explains.

 

Shetterly

Adds that DLCD is already operating this way.

 

Rep. P. Smith

References previous speakers who discussed their denied claims due to omitting a regulation from the list on their claim.

 

Shetterly

Replies that this was not with the state.

 

Klein

Explains Section 6, Page 10, which gives criteria for giving notice.

365

Klein

Explains Section 7, Pages 12-13, which would allow a land use application and M37 claim to file jointly.

 

Rep. Ackerman

Verifies that this would include a different appeal process to LUBA.

 

Klein

Confirms this and explains the judicial review in this instance.

 

Rep. Ackerman

Comments that this commits the property owner to a waiver rather than compensation.

 

Shetterly

Reports that this presumes that the owner wants a waiver.

405

Rep. P. Smith

Asks why this section is included.

 

Hunnicutt

Explains the timeline and reasons why this would be beneficial to the property owner.

TAPE 129, A

026

Rep. P. Smith

Asks if claimants can’t do that now.

030

Klein

Explains that without this provision the land use application would not be valid until after the M37 claim approved the specified use.

045

Rep. Greenlick

Makes a comment about the process.

 

Shetterly

Clarifies the function of a M37 claim in this case.

 

Rep. Greenlick

Gives a hypothetical example and asks about which codes would apply.

 

Klein

Responds it will be a combination based on which types of regulations the government has the authority to waive and gives examples.

 

Chair Garrard

Notes they will start with Section 8 at the next meeting.

115

Klein

Suggests discussing Sections 8 - 11 together.

 

Rep. Sumner

References an article in the Statesman Journal on the 1st M37 claim approved in Marion County.  Wants assurance that legislative action will not inadvertently harm someone who has already received a claim.

136

Chair Garrard

Makes announcements on future meetings.

 

Litke

Makes announcements.

 

Chair Garrard

Adjourns the meeting at 3:55 p.m.

 

 

EXHIBIT SUMMARY

 

  1. HB 3120, proposed amendments to HB 3120 (replace -3 amendments), Staff, 25
  2. HB 3120, summary of proposed amendment to HB 3120, staff, 4 pp
  3. HB 3120, draft form of -6 amendments, Don Schellenberg, 6 pp
  4. HB 3120, -6 amendments, Don Schellenberg, 20 pp