HOUSE COMMITTEE ON LAND USE

 

 

June 13, 2005 Hearing Room 50

1:15 P.M. Tapes  130 - 131

 

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 130, A

002

Chair Garrard

Calls the meeting to order at 1:30 p.m. and opens a work session on HB 3120.  Calls Dave Hunnicutt, Glenn Klein, Lane Shetterly and Bob Stacey to sit before the committee.

HB 3120 – WORK SESSION

 

Chair Garrard

Announces the committee will discuss Section 4 and states intention to adopt the -1 amendments (EXHIBIT A).

014

Rep. Anderson

MOTION:  Moves to ADOPT HB 3120-1 amendments dated 5/31/05.

015

Rep. P. Smith

Notes reluctance to accept amendments.

 

Rep. Nolan

Gives her support of the -1 amendments to be used as a framework.

 

Rep. Ackerman

Asks what motion is on the table.

 

Chair Garrard

Reports the motion is to adopt the -1 amendments.

 

Rep. Greenlick

Verifies the committee is replacing the contents of HB 3120 with the -1 amendments.

 

Chair Garrard

Confirms this.

 

Rep. Ackerman

Asks about a different set of amendments being used as the framework in a previous meeting.

 

Chair Garrard

Confirms this and explains the reasoning for adopting the -1 amendments.

 

Rep. Nolan

Notes there is a question as to whether or not the -1 amendments delete the entire body of HB 3120.

051

Lane Shetterly

Director, Department of Land Conservation and Development (DLCD).  Reports that the -1 amendments amend HB 3120, they do not “gut” them.

 

Rep. Greenlick

Asks about the intention of the committee.

 

 

VOTE:  7-0-0

AYE:            In a roll call vote, all members present vote Aye.

 

Chair Garrard

The motion CARRIES.

 

Sam Litke

Committee Administrator.  Reports that the committee left off on Page 13 (EXHIBIT B) Section 8 on judicial review.

 

Rep. Ackerman

Makes comments on previously raised concerns.

 

Chair Garrard

Discusses the chair’s intention for dealing with amendments.

 

Rep. Ackerman

Notes issues identified in the draft and asks how those will be addressed.

 

Chair Garrard

Directs the committee to have individual amendments drafted.

 

Rep. Ackerman

Asks if they should get the amendments individually or as a group.

 

Chair Garrard

Gives his preference for the group process.

119

Litke

Reviews questions raised in previous work sessions on ownership and family trusts.

 

Rep. Ackerman

Gives his concern for submitting amendments.  

 

Litke

Adds the date in Section 1(5)(a) as another area of concern raised by the committee.

139

Rep. Greenlick

Clarifies the issue as having two sets of provisions for M37 claims.

 

Chair Garrard

Agrees with Rep. Greenlick.

145

Bruce Miller

Assistant staff counsel, office of the state court administrator.  Refers to the June 8, 2005 proposed amendments to HB 3120 which replace the -3 amendments (EXHIBIT B).  Discusses Section 8(1) which states that the circuit court has exclusive jurisdiction and notes exception in Section 7(3)(b).

 

Rep. Greenlick

Asks if “exclusive jurisdiction” means “final jurisdiction”.

 

Miller

Responds negatively and explains why.

 

Rep. Greenlick

Asks what exclusive means in this context.

 

Miller

Defers to Klein.

 

Glenn Klein

Harrang Long.  Explains what exclusive jurisdiction means in this case and gives an example.

 

Rep. Greenlick

Asks if it is a term of art in statute.

 

Klein

Responds affirmatively.

 

Rep. Greenlick

Verifies the meaning of the term.

 

Klein

Clarifies the meaning.

 

Chair Garrard

Asks if Klein agrees with Miller’s suggestion.

 

Klein

Responds affirmatively and notes agreement with other suggestions of Miller’s as well.

 

Miller

Wants to have concerns on the record.

 

Rep. Ackerman

Asks for clarification on Section 8 (1).

 

Miller

Adds his confusion on this point as well and defers to Klein.

234

Klein

Explains the origin of the concern and gives alternative ways to draft this point.

 

Rep. Ackerman

Asks who hears the cases.

 

Klein

Responds in the case of a city, it would be a municipal court.

 

Rep. Ackerman

Asks why they would not go to circuit court.

 

Klein

Responds that this was a concession of the work group.

 

Rep. Ackerman

Notes municipal courts have limited geographic grounds and asks what happens if someone has a claim with the county.

 

Klein

Responds what the situation would be in that case.

 

Rep. Ackerman

Asks why they don’t just state that no claim for relief is allowed for third parties challenging that would be subject to the waiver process as initiated by another process rather than putting it into a court of limited jurisdiction.

 

Klein

Explains the reasoning that cities wanted to preserve home rule authority and notes ambiguities with other possible wording.

 

Rep. Ackerman

Asks about the jurisdictional limits of Eugene municipal court in relation to Lane County circuit court.

 

Klein

Responds he can provide something in writing.

306

Rep. Ackerman

Asks if the municipal court has injunctive powers.

 

Klein

Adds that he will address that in the written memo as well.

310

Rep. Greenlick

States that this is a policy decision and speculates on other policy decisions throughout the draft.

 

Klein

Remarks on the complexity of the legislation and many parties involved.  Acknowledges the confusion and expresses willingness to go through the draft in greater detail.

 

Rep. Greenlick

Asks that areas addressing policy be pointed out.

 

Shetterly

Comments on policy issues within the draft.  Gives the department’s position on this issue.

400

Rep. Greenlick

Verifies that the common law claim would be taken to circuit court.

 

Shetterly

Confirms this.

 

Rep. Greenlick

Verifies the provision would not exclude the common law.

 

Shetterly

Confirms this.

TAPE 131, A

002

Rep. Nolan

Suggests taking the language out and explains why.

018

Shetterly

Responds he does not agree with a point in her testimony.

 

Rep. Nolan

Comments she would like to review Klein’s memo.

032

Klein

Clarifies the policy question before the committee on the authority of local governments.

 

Chair Garrard

Comments on authority of local governments.

058

Miller

References Section 8 (7) and (8) and suggests they may be inconsistent.

 

Rep. Ackerman

Asks about the rationale in Section 8 (2).

 

Miller

Responds that he was not involved in the drafting of this document and defers to the work group.

093

Klein

Explains that 8 (2) will allow a claimant to file an appeal, and will also allow others who participated in the government’s proceedings and are “adversely affected” may also participate in the judicial review.  Gives an example of how the provision will work. 

 

Rep. Ackerman

Notes that for the process of intervention under ORCP 33 there are two options and no choice is made in Section 8(3).  Asks which is preferred.

 

Klein

Responds the work group envisioned “intervention of right” rather than “permissive”.  Agrees that under this drafting it is unclear.

138

Rep. Anderson

Asks if the process of judicial review is not already covered in statute.

 

Klein

Responds that they would eventually be covered when the courts interpreted the statutes to determine what process would apply.

 

Chair Garrard

Asks about the committee’s opinion on Section 8.

 

Rep. Greenlick

Notes desire to remove the second sentence of Section 8 (1).

 

Chair Garrard

Agrees.

 

Rep. Ackerman

Discusses reasoning to remove the section.

 

Chair Garrard

Clarifies they are referring to the 2nd sentence in Section 8 beginning with “notwithstanding” and ending in “entity”.  Asks if there is any objection to removing this sentence and seeing none, removes the sentence.

 

Rep. Greenlick

Asks about different treatment on the question of compensation.

191

Klein

Comments that there was an error and that “claim for compensation” should read “claim”.   

 

Chair Garrard

Asks if there is objection to removing Section 8 (8).

 

Rep. Ackerman

Verifies with Klein that Section 8 (8) deals with the language of scope of review for a writ of review.

 

Klein

Confirms this and notes an unintended overlap between Section 8 (7) and (8).  Recommends leaving (8) in and explains reasoning.

 

Rep. Ackerman

Explains his concern.

 

Klein

Responds they will address this clarification.

225

Rep. Ackerman

Asks that clarification is made to Section 8(3) as well.

 

Miller

Raises concern about standard review on Section 9 (3) on Page 15. 

 

Rep. Greenlick

Comments on excessive cross referencing.

 

Klein

Explains that the reason for cross referencing is to be as clear as possible with as few words as possible.

330

Rep. Greenlick

Suggests using the “applicable criteria contained in this measure”.

 

Klein

Explains resistance to the terminology “applicable criteria” and gives examples of possible problems.

 

Rep. Greenlick

Acknowledges that and points out the use of  “applicable criteria” on Page 12.

 

Klein

Explains why the use of the term of “applicable criteria” is applicable in this case.

 

Rep. Greenlick

Expresses concern that the criteria listed is not sufficient.

 

Klein

Believes they have a comprehensive list and notes parties involved in the drafting.

360

Rep. Anderson

Suggests the committee move on.

 

Rep. Greenlick

Elaborates on his concern on this section.

377

Shetterly

Reviews criteria in Section 6(7) as the key elements of a M37 claim.

TAPE 130, B

005

Rep. Ackerman

Points to Page 13 and asks if there was a reason to take out the criteria on the writ of review section that allows a court to make a finding as to whether the order of the administrative agency is or is not supported by substantial evidence in the record.

 

Klein

References Page 15, (3) and reports it was substituted for the provision Rep. Ackerman referred to.  Gives the reason why it was substituted.

025

Rep. Greenlick

Asks about Section 9 (3) which makes reference to Section 6 (7) which references Section 5 (5) and (6) and asks if that means that if the claims process is flawed by a violation of section 1 – 4 a circuit court could not deny the claim.

 

Klein

Responds negatively.  Clarifies that Page 15 (3) only references applicable criteria and (2) deals with applicable procedures.

 

Rep. Greenlick

Asks about what will apply under the claims process and applicable procedures in the sections described above.

 

Klein

Gives the intention of the provisions and lists the applicable sections which may be grounds for a court reversal.

 

Rep. Greenlick

Verifies that the fee would not fall into this category.

 

Klein

Agrees, noting it is a requirement of the claimant.  Elaborates on the definition of “applicable procedures”.

068

Miller

Suggests clarification of the terms used in Section 10(1)(a), (b), and (c).

 

Rep. Ackerman

Asks why they use the term “order” rather than “judgment” in Section 10 (1)(c).

 

Miller

Comments on (c) and further defers to Klein.  Gives his interpretation of Section 10 (1)(a), (b) and (c).

100

Miller

Suggests clarifying Section 10 (1) (c) to specify if the order is appealable or not.

 

Rep. Anderson

Verifies that Miller wanted to clarify something in (3).

 

Miller

Responds negatively and points out a problem with courts awarding compensation without an appraisal and suggests wording to clarify this issue.

 

Rep. Anderson

Asks Klein if there is justification for the state to ask for a fee for the investigation of a M37 claim rather than after the fact.

143

Klein

Describes this question as a policy issue and defers to Art Schlack and Linda Ludwig to discuss at another time.

154

Klein

Responds to Rep. Greenlick’s earlier question on Section 10 on the terms “order” versus “judgment”.

 

Chair Garrard

Asks Miller if he is satisfied with Section 11.

 

Miller

Responds affirmatively.

202

Klein

Discusses Section 12 which deals with use of the waiver and explains  constraints.  Notes the intention of Section 12 (2) is to avoid “gotchas”.

 

Rep. Anderson

Asks why only one additional claim would be allowed if more than one mistake is made by the local government.

 

Klein

Responds with their assumption that all the criteria would be identified.

246

Rep. Ackerman

Asks when the additional claim is filed and what timeline will be applicable.

 

Klein

Explains why there is not an explicit deadline.

266

Klein

Discusses Section 13 on the transferability of waivers.  Reviews the provisions of this section.

 

Rep. Greenlick

Suggests a different interpretation and asks for an explanation.

 

Klein

Clarifies that the later of two timelines will apply.  Gives an example.

 

Rep. Greenlick

Verifies that the waiver would not expire in a given situation.

 

Klein

Confirms this if the person who received the waiver still owns the property and elaborates.

317

Rep. Greenlick

Verifies that essentially the waiver is permanent for the person who attained it, unless property is transfered in which case it expires in 2 years.

 

Klein

Confirms this. 

 

Rep. Anderson

Asks if this can be clarified.

 

Klein

Agrees to clarify this point in Legislative Counsel.

 

Rep. Nolan

Believes that the explanation and draft language are consistent but raises concern about uncertainty with adjacent properties.

344

Chair Garrard

Suggests that local government make the decision.

 

Rep. Nolan

Responds that local government wouldn’t have a say in this issue.  Reiterates her concern about extensive uncertainty for property owners.

 

Chair Garrard

Adds that a property owner would still have to go through the local process to have a specific facility sited.

 

Shetterly

Addresses Rep. Nolan’s concern and describes it as a function of M37 not addressed in this bill.

 

Chair Garrard

Asks if in this case adjacent property owners would have M37 claims.

 

Shetterly

Responds negatively because the impact on their property is not by a regulation but by a use exercised by neighbors.

TAPE 131, B

007

Rep. Greenlick

Suggests using the wording “the sooner of” rather than “the later of” in regards to transferability.

 

Shetterly

Explains the intention behind this policy decision and notes that by limiting the term there is pressure to develop.

027

Rep. Anderson

Comments on uncertainty for banks loaning on property and asks if a clarification can be made.

 

Klein

Responds that Section 13 (3) attempts to address this point.  Suggests getting input from the lending institutions.

 

Chair Garrard

Directs staff to do this.

 

Rep. Ackerman

Asks about what “vested” refers to on Section 13 (2) (b).

053

Klein

Respond that it is a term of art and notes usage of “vested” from previous court cases. 

 

Rep. Ackerman

Asks why they do not specify that the waiver is vested after a final decision by the administrative body or the court.

 

Klein

Responds that that is not the rule and defers this issue to later discussions. 

065

Rep. Ackerman

Speaks supportively of recording waivers but wonders about the formulation of standardized forms.

 

Klein

Responds that (4) has been moved in the newer draft of the bill and attempts to use more traditional language.

 

Rep. Ackerman

Suggests a simpler document.

 

Klein

Remarks that other have suggested this point and they will address this concern.

 

Chair Garrard

Adjourns the meeting at 2:58 p.m.

 

 

EXHIBIT SUMMARY

 

  1. HB 3120, -1 amendments, staff, 60 pp
  2. HB 3120, proposed amendments to HB 3120 to replace -3 amendments, staff, 25 pp