Friday-1:00 p.m. Monday- 7:00 p.m. Thursday-9:30a.m.

COUNTY COURT JOURNAl

NOTICE OF BOARD WORKSHOP AND BOARD MEETING of the

TILLAMOOK COUNTY BOARD OF COMMISSIONERS Also sitting as the Board of the

SOLID WASTE SERVICE DISTRICT, THE 4-H AND EXTENSION SERVICE DISTRICT

AND COUNTY ROAD DISTRICT to be held

Wednesday, July 22, 2015 Workshop at 8:30 a.m.

Commissioners' Meeting Room B County Courthouse, 201 Laurel Avenue, Tillamook, Oregon

Board Meeting at 10:00 a.m. Commissioners' Meeting Room A

County Courthouse, 201 Laurel Avenue, Tillamook, Oregon

BOARD OF COMMISSIONERS

Tim Josi, Chair E-mail: tjosi@co.tillamook.or.us

Mark Labhart, Vice Chair E-mail: mlabhart@co.tillamook.or.us

Bill Baertlein, Commissioner E-mail: bbaertle@co.tillamook.or.us

201 Laurel Avenue Tillamook, Oregon 97141

Phone: (503) 842-3403 FAX: (503) 842-1384

ANY QUESTIONS? Contact Pau1Levesque(503)842-1809

E-mail: plevesqu@co.tillamook.or.us

COUNTY WEBSITE: http://www.co.tillamook.or.us

WATCH THIS MEETING ONLINE: tctvonline.com OR ON TV: TCTV Channel 4

Saturday-3:30a.m. Tuesday- 10:00 p.m.

Sunday- 7:00 p.m. Wednesday- 7:00 a.m.

/

NOTE: The Board of Commissioners reserves the right to recess to Executive Session as may be required at any time during this meeting, pursuant to ORS 192.660(1 ).

NOTE: The Tillamook County Courthouse is accessible to persons with disabilities. If special accommodations are needed for persons with hearing, visual or manual impairments who wish to participate in the meeting, please contact (503) 842-3403 at least 24 hours prior to the meeting so that the appropriate communications assistance can be arranged.

AGENDA

WORKSHOP· AUDI007-22-2015A.MP3

CALL TO ORDER: Wednesday, July 22, 2015 8:32 a.m.

1. Welcome & Request to Sign Guest List

2. 00:50 Public Comment- Non-Agenda Items- There were none

3. Public Works Report/Liane Welch a. 01 :27 Report of Status on "Metals Building" at the Tillamook Transfer Station/David McCall

4. 06:02 Discussion Concerning an Order Canceling Certain Outstanding Uncollectible Taxes as per ORS 311.790 for Big Rock Excavation/Trish Bush

5. 07:30 Discussion Concerning a Commercial Lease with the City of Rockaway Beach for 905 Square Feet at Rockaway Beach City Hall for the Operation of a Health Clinic/Marlene Putman

6. 09:15 Discussion and Consideration of Hiring a Physician Assistant above Step 2/Marlene Putman A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes.

7. 11 :22 Discussion and Consideration of a Personnel Requisition to Rehire a Retiree Not to Exceed 150 Days Per Year for the Treasurer's Department/Deb Clark A motion was made by Commissioner Baertlein and seconded by Vice-Chair Labhart. The motion carried with three aye votes.

8. 13:49 Discussion Concerning an Order Appointing Chad Allen to the Planning Commission/Mark Labhart

9. 15:35 Discussion Concerning a Letter to Senators Wyden and Merkley Requesting Support of the National Forest Ecosystem Improvement Act (S. 1691 )/Tim Josi

10. Chief of Staff Report/Paul Levesque a. 16:26 Discussion Concerning Change Proposal #3 to Energy Savings Performance Contract

#4527 with McKinstry Essention, LLC for Boiler System Condensate Return Piping b. 17:51 Discussion Concerning a Resolution Authorizing the Execution and Delivery of one or

more Lease Purchase, Loan or Similar Financing Agreements for the Tillamook County Jail and Justice Facility Rehabilitation Project

c. 18:59 Discussion Concerning an Order Establishing a Special Prosecution Fund Assessment on Certain Justice Court Convictions

11 . Staff Report/Sue Becraft a. Suggestion Box

29:18 Courthouse Break Room Doors 30:08 Sue Vacation 30:30 Union Issues in Suggestion Box/Mark Labhart

12. 31:39 Board Concerns- Non-Agenda Items- There were none

13. Public Comments -There were none.

ADJOURN-9:15a.m.

MEETING- AUDI007-22-2015B.MP3

CALL TO ORDER: Wednesday, July 22,2015 10:01 a.m.

1. Welcome & Request to Sign Guest List

2. Public Comment- Non-Agenda Items - There were none

LEGISLATIVE- ADMINISTRATIVE

3. 00:40 Consideration of an Order Canceling Certain Outstanding Uncollectible Taxes as per ORS 311.790 for Big Rock Excavation/Trish Bush A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The board signed the Order #15-055.

4. 01 :41 Consideration of a Commercial Lease with the City of Rockaway Beach for 905 Square Feet at Rockaway Beach City Hall for the Operation of a Health Clinic/Marlene Putman A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The Chair signed the lease.

5. 03:30 Consideration of an Order Appointing Chad Allen to the Planning Commission/Mark Labhart A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The board signed Order #15-056.

6. 04:56 Consideration of a Letter to Senators Wyden and Merkley Requesting Support of the National Forest Ecosystem Improvement Act (S. 1691 )/Tim Josi A motion was made by Commissioner Baertlein and seconded by Vice-Chair Labhart. The motion carried with three aye votes. The board signed the letter.

7. 07:22 Consideration of Change Proposal #3 to Energy Savings Performance Contract #4527 with McKinstry Essention, LLC for Boiler System Condensate Return Piping/Paul Levesque A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The Chair signed the change proposal.

8. 08:45 Consideration of a Resolution Authorizing the Execution and Delivery of One or More Lease Purchase, Loan or Similar Financing Agreements for the Tillamook County Jail and Justice Facility Rehabilitation Project/Paul Levesque A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The board signed Resolution #15-025.

9. 10:54 Consideration of an Order Establishing a Special Prosecution Fund Assessment on Certain Justice Court Convictions/Bill Sargent A motion was made by Vice-Chair Lab hart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The board signed Order #15-057.

Chair Josi recessed the meeting at 10:24 a.m.

Chair Josi reconvened the meeting at 10:31 a.m.- AUDI007-22-2015C.MP3

10. 00:05 Public Hearing Concerning the Remand from the State of Oregon Land Use Board of Appeals (LUBA No. 2014-106) in Response to the Appeal of Tillamook County's Approval of Ordinance Amendment Request OA-14-01 for the Neskowin Coastal Hazards Adaptation Plan

11. 17:05 Consideration of an Order Reconsidering OA-14-01 Findings of Fact and Decision of an Amendment to the Tillamook County Comprehensive Plan Goal 18 Beaches and Dune Element and Section 4: Supplementary Regulations of the Tillamook County Land Use Ordinance in Accordance with Statewide Planning Goal 18: Beaches and Dunes, to Incorporate the Policies Contained in the Neskowin Coastal Erosion Adaption Plan/Sarah Absher A motion was made by Vice-Chair Labhart and seconded by Commissioner Baertlein. The motion carried with three aye votes. The board signed Order OA-14-01 LUBA Remand.

12. Board Concerns- Non-Agenda Items & Announcements 13:14 Report on Transient Lodging Tax Workshop with Coos and Curry Counties 15:52 County Fair 16:16 Announcements

13. Public Comments - There were none

ADJOURN -10:53 a.m.

AGENDA

WORKSHOP

CALL TO ORDER: Wednesday, July 22, 2015 8:30 a.m.

1. Welcome & Request to Sign Guest List

2. Public Comment- Non-Agenda Items

3. Public Works Report/Liane Welch a. Report of Status on "Metals Building" at the Tillamook Transfer Station/David McCall

4. Discussion Concerning an Order Canceling Certain Outstanding Uncollectible Taxes as per ORS 311.790 for Big Rock Excavation/Trish Bush

5. Discussion Concerning a Commercial Lease with the City of Rockaway Beach for 905 Square Feet at Rockaway Beach City Hall for the Operation of a Health Clinic/Marlene Putman

6. Discussion and Consideration of Hiring a Physician Assistant above Step 2/Marlene Putman

7. Discussion and Consideration of a Personnel Requisition to Rehire a Retiree Not to Exceed 150 Days Per Year for the Treasurer's Department/Deb Clark

8. Discussion Concerning an Order Appointing Chad Allen to the Planning Commission/Mark Labhart

9. Discussion Concerning a Letter to Senators Wyden and Merkley Requesting Support of the National Forest Ecosystem Improvement Act (S. 1691 )!Tim Josi

10. Chief of Staff Report/Paul Levesque a. Discussion Concerning Change Proposal #3 to Energy Savings Performance Contract #4527

with McKinstry Essention, LLC for Boiler System Condensate Return Piping b. Discussion Concerning a Resolution Authorizing the Execution and Delivery of one or more

Lease Purchase, Loan or Similar Financing Agreements for the Tillamook County Jail and Justice Facility Rehabilitation Project

c. Discussion Concerning an Order Establishing a Special Prosecution Fund Assessment on Certain Justice Court Convictions

11 . Staff Report/Sue Becraft a. Suggestion Box

12. Board Concerns- Non-Agenda Items

13. Public Comments

ADJOURN

MEETING

CALL TO ORDER: Wednesday, July 22,2015 10:00 a.m.

1. Welcome & Request to Sign Guest List

2. Public Comment - Non-Agenda Items

LEGISLATIVE ADMINISTRATIVE

3. Consideration of an Order Canceling Certain Outstanding Uncollectible Taxes as per ORS 311.790 for Big Rock Excavation/Trish Bush

4. Consideration of a Commercial Lease with the City of Rockaway Beach for 905 Square Feet at Rockaway Beach City Hall for the Operation of a Health Clinic/Marlene Putman

5. Consideration of an Order Appointing Chad Allen to the Planning Commission/Mark Labhart

6. Consideration of a Letter to Senators Wyden and Merkley Requesting Support of the National Forest Ecosystem Improvement Act (S. 1691 )/Tim Josi

7. Consideration of Change Proposal #3 to Energy Savings Performance Contract #4527 with McKinstry Essention, LLC for Boiler System Condensate Return Piping/Paul Levesque

8. Consideration of a Resolution Authorizing the Execution and Delivery of One or More Lease Purchase, Loan or Similar Financing Agreements for the Tillamook County Jail and Justice Facility Rehabilitation Project/Paul Levesque

9. Consideration of an Order Establishing a Special Prosecution Fund Assessment on Certain Justice Court Convictions/Bill Sargent

10. Public Hearing Concerning the Remand from the State of Oregon Land Use Board of Appeals (LUBA No. 2014-1 06) in Response to the Appeal of Tillamook County's Approval of Ordinance Amendment Request OA-14-01 for the Neskowin Coastal Hazards Adaptation Plan

11. Consideration of an Order Reconsidering OA-14-01 Findings of Fact and Decision of an Amendment to the Tillamook County Comprehensive Plan Goal 18 Beaches and Dune Element and Section 4: Supplementary Regulations of the Tillamook County Land Use Ordinance in Accordance with Statewide Planning Goal 18: Beaches and Dunes, to Incorporate the Policies Contained in the Neskowin Coastal Erosion Adaption Plan/Sarah Absher

12. Board Concerns - Non-Agenda Items & Announcements

13. Public Comments

ADJOURN BOARD MEETINGS AND ANNOUNCEMENTS

The commissioners will take a court facilities tour at the Courthouse on Wednesday, July 29, 2015 beginning at noon at the commissioners' office at 201 Laurel Avenue, Tillamook, Oregon.

The commissioners will not hold a workshop or board meeting on Wednesday, August 5, 2015 in order to participate in activities and events at the Tillamook County Fair.

The commissioners will not hold a workshop or board meeting on Wednesday, August 26, 2015. The commissioners will attend the Oregon Coast Economic Summit hosted by the Oregon Legislative Coastal Caucus in Grand Ronde, Oregon.

The commissioners' evening meeting schedule will resume in October.

BOARD OF COMMISSIONERS' WORKSHOP

Wednesday, July 22, 2015

Mark Labhart Tim Josi

PLEASE PRINT Name

Present Absent Present Absent ~ Bill Baertlein v

Paul Levesque ,~

Address Item of Interest

11 ((

(Please use reverse if necessary)

BOARD OF COMMISSIONERS' MEETING

Wednesday, July 22, 2015

Present Absent Present Absent Mark Labhart Tim Josi Bill Sargent

~ Bill Baertlein ....--Paul Levesque C/'

PLEASE PRINT Name Address Item of Interest

1 rl\>h ~ b'h r±f,assmaKt @ T CLHthi"' JoP/ .5-fPVPh5 Je- 5 f,rt? Co~'~"f

910$ 'bl.i'!-\3 ell 12.& N(,kcw ;,., O:L.. 17141

(Please use reverse if necessary)

ll 1(

POF.js viewer

Hea:tthProv1der Pav Iable http://intranet.eo.tillamook.or.us/CommonDocs/PersOimel/HealthProviderPayTable.pdf

Effective lulv 1. 2015

TABLE HP MID-LEVEL PROVIDERS- FAMILY NURSE PRACTITIONER AND PHYSiCIAN ASSISTANT

Years In Practice __ STEP 1 Sf 'EP_2 I STEP3 STEP4 STEPS STEP6 STEP7 STEPS STEP9

. Hourlv Base Pav Rate t_ 39.77 I $ 41.36 $ 43.02 $ 44.14 I ' 4§c~4 $ 48.4{) I ' 50.34 $ 52.3~- $ 54.45

7,456.00 ' $ 7 755.00 I '

8 Q!)6.00 $ 8 389.00 $ ·- 8 725.00 $ 9,071.00 $ 9 437.00

,j,:Jti'+.:JU I $ 3 728.00 $ 3 87/.50 I ' 4 033.00 $ 4194.50 I ' 4 362.50 $ 4.537.00 $ 4 718.50

Monthly Base Pay Rate I $ 6 893.00 I $ 7 169.00 1 $

Semi-Monthly Base Pay Rate $ 3 446.50 $ ~ - n

Annual Base Pay R~te $ 82 716.00_ $ 86 028.00 I t 89,472,00 I $ 93 060.00 I $ _ 96,792.00 ....1_1,90,668.00 I 104.700.0Q_ $ _108,888.00 $ 113,244.00

Years of Service Retention AWARD* _ SP_ECIAL CUNPITIONS APPLY TO QUALifY fOR THIS Rt:Tt:NTION A)'VARD

Year of service for Tillamook Coun YOS 1 YOS 2 YOS3 YOS4 YOS 5 YOS 6 YOS 7 YOS8 YOS9

Award Pav Monthly {up to maximum} $0.00 $500.00 $500.00 $750.00 $750.00 $1,000.00 $1,000.00 $1,000.00 $1,250.00

I PHYSICIANS I -

~ Years in Practice STEP 1 STEP 2 STEP3 STEP4 - STEP 5 STEP6 STEP7 STEPS STE~-~~

Houri Base Pav Rate $ 58.05 $ 59.79 _I_ 61.59 $ 63.41 I ' 65.34 I ' 67.31 $ 69.32 i $ 71.41 ' 73.55

Monthly Base Pav Rate $ 10 062.00 $ 10 364.00 $ 10 675.00 I ' 10 9%.00 $ 11 326.00 I ' 11 666.00 I ' 12 016.00 $ 12 377.00 $ 12 749.00

SemH·~ont~ly Base P~y_Rate $ -__ 5 031.00 .1_ ~!82,00 $ 5 337.50 I ' 5 498.00 $ 5 663.QO $ 5 833.00 I< _§,908.00 $ 6 188.50 $ 6 374.50 Annual Base Pay Rate $ 120 744.00 $ 124 368.00 $ 128 100.00 I ' 131 952.00 I ' 135 912.00 I ' 139 992.00 I ' 144 192.00 $ 148 524.00 $ 152 988.00

I PHYSICIAN/INTERNAL MEDICINE & MEDICAL DIRECTOR AND/OR HEALTH OFFICER I Yeari!i in Practice STEp 1 ---~- STEP 2 STEP3 STEP4 STEP 5 _STE~ 6 STEP 7 STEPS ~T~P~--~··

. Hourlv Base Pav Rate $ 77.86 $ 80.2Q $ 82.61 $ 85.09 • 87.65 j 90.28 $ 92.99 I ' 95.78 $ 98.65

Monthly Base P~Rate $ 13 496.00 .1_ 13 901.00 $ 14 319.00 $ 14,749.00 $ 15 192.00 I ' 15 648.00 I' 16118.00 I ' 16,602.00 $ 17101.00

Sem!~~onthlv Base Pav Rate ~ 6 748.00 $ - 6 950.50 $ 7 159.50 _i 7 374.50 $ 7 5%.00 $ 7 824.00 $ 8 059.00 I< 8 301.00 i ' 8 550.50 - -

'" ~-J)ll $ 182,304.00 li___187,77Q,QO $ 19;1±JQ,OO $ 199,224.00 ; 205,212.00 ---~ Annual aase t'M,ttatel $ lbl,':li:;,L.uu 1 $ lbb t!lL.UU 1 $ li!.,J;I~tl-UU 1 $ lib,'-'""' l

~ Years of service -~cl~ntion AWARD* I I SPECIAL CONDITIONS APPLY TO UALIFY Fo~:nt!~ _BETENTION AWARD

r---- _ Year of service fo_rTillamook Countv\ Yu::> 1 \ YU~ L

Award Pay Monthly {up to maximum} $0.00 $_500.00 YOS3 YOS4 YOS5 I YOS6 1 YOS7 YOSB YOS9

$750.oo $75o.oo $!1.ooo-:Do $1,ooo.oo _ $t,2so.oo _ $1,25o.oo $1,25o.oo -

Monthly Provider Leadership Stipends Asst. Med Director

Monthly Stipend! $ 575.00

Temporary Physician (Individual Agreement)

1 Pmvide.r_9n·Call-weeklv/ Pail;~ ONLY for full week on-call _

MD or PA On-Call Tillamook County l~il T $

IMD or P~ On-Call Ti!.@.mook County Health Department .. _Is

$90~$175

·r hnur

Medical Director Public Health OffiCia~ 780.00

Temporary Mid-Level Provider

780.00

$55.00-$140 rhour

*Conditions to be met and Approved by the Department Director I * Based on these reoulred conditions: 1. 216 patient encounters per month**; adJusted annual~ 2. YOSRA is prorated based on %, of FTE 3. Closed Charts Formula: %of charts closed monthly- 90% Jl•lv 1, 2012 December 31, 2012 %of r:harts closed weekly· 90% January 1, 2013 ·June 30, 2013 %of charts closed within 48 hours- 90u;., July 1, 20!3- December 31, 2013 %of charts closed within 24 hours- 90% January 1, 2014 ·December 31, 2014

""'based on average of 21.67 working days per month and 10 encounters per day; includes available workdays for patient contact (I.e., Incorporates all leave hours and any other non-patient time). Rev1sed and adopte<l by BOCC 8/28/13 {ch<lnged Temporary Mid-Level Provider from flat rate of $55 per hour to a range of minimum $55 to maximum of $140 per hour)

0% Cola FY 15!16

Revised and adopted by BOCC 11/7/13 (changed YIP to STEP and renamed Physicians-Internal Med~e•ne to Physician/Internal Medicine & Medical and/or Health Officer, step 1 starting at $160,344 annual salary, 3% between steps) Revised and adopted by BOCC 6/24/15 (changed Mid-Level Pmviders range)

l ',l'·~'""'w'•'W'"""'~·"I'"'"'<"\Wh~o""T•o~owylm~"" '"''"'""""' t'•l~ok'lJOC~O"'l""'m" "'"--<" ,.LS )01<• '"' l•bk•"' '~'" • >1 "'k'"

l of2 7/22/?0l'\ X:27 AM

Tillamook County Assessment and Taxation

Land of Cheese, Trees, and Ocean

July 13, 2015

Tillamook County Board of Commissioners 201 Laurel Ave. Tillamook, OR 97141

Re: Request for cancellation of uncollectable taxes

To the Board of County Commissioners:

201Laurel Avenue

Tillamook, OR 97141 503-842-3400

Toll Free 1-800-488-8280 x 4002 Fax: 503-842-3448

www.co.tillamook.or.us

The Tax Collector with the approval of the District Attorney, have determined the taxes owing for Personal Property Tax Account ID(s) 412385 & 415072 are wholly uncollectable. Big Rock Excavation, Inc. filed an Administrative Dissolution with the Oregon Secretary of State Corporation Division February 24, 2012. This business filed bankruptcy in the U.S. Bankruptcy Court District of Oregon (case no. 313-44342ELP7)

We ask your approval to cancel outstanding taxes, interest and penalties in the amount of $9,740.55 pursuant to ORS 311.790.

Thank you for your consideration.

Respectfully,

~-, iJ J. .. :u_ l)~n _n ____ _

Denise Vandecouvering, Tax S?-lle_c~~~-----)

STATEMENT OF TAX ACCOUNT TILLAMOOK COUNTY TAX COLLECTOR

TILLAMOOK COUNTY COURTHOUSE TILLAMOOK, OREGON 97141

1-800-488-8280 X4002

(503) 842-3400

BIG ROCK EXCAVATION, INC BOYCE, DENNIS PO BOX 312 HEBO, OR 97122

Tax Account # 412385

Account Status A Roll Type Personal

Lender Name

Loan Number Property ID 2202

Situs Address 36965 HWY 22 COUNTY, OR Interest To 8/15/2015

Tax Summary Tax Tax Total Current interest Discount Year Type Due Due Due Anilable

2009 ADVALOREM $4,723.86 $2,533.79 $2,190.07 $0.00

2009 FEE $0.00 $0.00 $0.00 $0.00

2008 ADVALOREM $0.00 $0.00 $0.00 $0.00

2008 FEE $0.00 $0.00 $0.00 $0.00

2007 ADVALOREM $0.00 $0.00 $0.00 $0.00

Total $4,723.86 $2,533.79 $2,190.07 $0.00

TAX NOTATION ••• NOTATION CODE DATE DESCRIPTION

ADDED

WARRANT FEE 18-Jun-2010 Warrant issued for non·payment 2010·003539

13-Jul-2015

Original Due Due Date

$3,525.43 Nov 15,2009 $84.00 Nov 15, 2009

$3,923.58 Nov 15,2008 $47.00 Nov 15, 2008

$4,500.99 Nov 15, 2007

$12,081.00

STATEMENT OF TAX ACCOUNT TILLAMOOK COUNTY TAX COLLECTOR

TILLAMOOK COUNTY COURTHOUSE TILLAMOOK, OREGON 97141

1-800-488-8280 X4002

(503) 842-3400

BIG ROCK EXCAVATION, INC BOYCE, DENNIS PO BOX 3!2 HEBO, OR 97122

Tax Account# 4I5072

Account Status A Roll Type Personal

Lender Name

Loan Number Property 1D 13 00

Situs Address 36965 HWY 22 COUNTY, OR Interest To 8/15/2015

Tax Summary Tax Tax Total Current Interest Discount

Year Type Due Due Due Anilable

2013 ADVALOREM $1,656.67 $1,336.02 $320.65 $0.00

2012 ADVALOREM $1,833.74 $1,309.81 $523.93 $0.00

2012 FEE $0.00 $0.00 $0.00 $0.00

2011 ADVALOREM $1,442.28 $924.54 $517.74 $0.00

2011 FEE $84.00 $84.00 $0.00 $0.00

2010 ADVALOREM $0.00 $0.00 $0.00 $0.00

Total $5,016.69 $3,654.37 $1,362.32 $0.00

TAX NOTATION ..• NOTATION CODE DATE DESCRIPTION

ADDED

WARRANT FEE 10-Jul-2012 WARRANT ISSUED 7/5!12 _ 2012-003679 PF

13-Jul-2015

Original Due Due Date

$1,336.02 Nov 15,2013

$1,309.81 Nov 15,2012

$0.00 Nov 15,2012

$924.54 Nov 15.2011

$84.00 Nov 15,2011

$939.28 Nov 15,2010

$4,593.65

Business Registry Business Name Search Page I of2

OllfGON SECRETARY OF STATE

• Corporation Division

Business Name Search

New Search Printer Friendly Business Entity Data 06 26 2015 11·11 - -

Registry Nbr Entitv Entity Jurisdiction Registry Date Next Renewal Renewal Due? Im!l Status Date

727942-83 DBC INA OREGON 12-29-1999

Entity Name BIG ROCK EXCAVATION, INC.

Foreiqn Name

New Search Printer Friendlv Associated Names Type PPB IJ'RINCIPAL PLACE OF BUSINESS I I

Addrl 37125HWY22 Addr2 csz HEBO PR 197122 I I Country !UNITED STATES OF AMERICA

Please click herefor general information about registered agents and service of process. Type AGT !REGISTERED AGENT I Start Date kl3-25-2oo3 I Resign Date I Name DENNIS I !BOYCE I I

Addr 1 7125 HIGHWAY 22 Addr 2 csz HEBO KJR 197122 I I Country !UNITED STATES OF AMERICA

Country !TED STATES OF AMERICA

Type ~RE !PRESIDENT I I Resign Date I Name DENNIS I !BOYCE I I Addrl ~7125HWY22 Addr2 PO BOX 312

csz HEBO KJR 197122 I I Country !UNITED STATES OF AMERICA

Type SEC !SECRETARY I I Resign Date I Name SUSAN I !BOYCE I I

Addr 1 37125 HWY 22 Addr 2 PO BOX 312

csz HEBO ~R i'J7122 I I Country !UNITED STATES OF AMERICA

New Search Printer Friendlv Name History Business Entity Name l'ia.m.e. l'ia.m.e. Start Date End Date TYoe Status

BIG ROCK EXCAVATION, INC. EN CUR 12-29-1999

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f\DMINISTRA TIVE DISSOLUTION

02-24-2012 SYS

NOTICE LATE ANNUAL I2-30-2011 SYS ANNUAL REPORT PAYMENT 11-22-2010 11-19-2010 SYS ANNUAL REPORT PAYMENT 12-30-2009 12-28-2009 SYS AMNDMT TO ANNUAL

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f\MNDMT TO ANNUAL ~PT/INFO STATEMENT

03-21-2003 FI

~NNUALREPORTPAYMENT 12-31-2002 SYS V\.NNUAL REPORT PAYMENT 12-19-200 I SYS f.-HANGED RENEWAL 02-27-2001 FI "'OTICE LATE ANNUAL 02-23-200 I SYS U'<EW FILING 12-29-1999 FI

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Tillamook County

Land of' Cheese, Trees and Ocean Breeze

July 22, 2015

Senator Ron Wyden 221 Dirksen Senate Office Building Washington DC 20510

Senator Jeff Merkley 313 Hart Senate Office Building Washington DC 20510

RE: S. 1691 -National Forest Ecosystem Improvement Act

Dear Senator Wyden and Senator Merkley:

Board of Commissioners Tim Josi. Mark Labhart. Bill Baertlein

20 I Laurel Avenue Tillamook, Oregon 97141

Phone 503-842-3403 Fax 503-842-1384

TTY Oregon Relay Service

As you know, Oregon's federal forests and our rural communities are in danger due to a lack of active management.

According to the Forest Service, over 65 million acres of national forest lands are in need of treatment due to poor forest health associated with insects, disease, a century of fire suppression and the resulting build-up of hazardous fuels. The lack of early successional forests has degraded wildlife habitat, and the decline of logging and other forest management activities have cost thousands of Oregon family-wage jobs.

Today the Forest Service spends more than 40 percent of its budget on fire suppression, and more than $350 million on environmental analysis and regulatory compliance. These rising costs are associated with excessive litigation that allows some activist organizations to obstruct projects and profit at the expense of American taxpayers.

The status quo is not working. On July 9, 2015 the U.S. House of Representatives approved H.R. 2647 to give the Forest Service and the Bureau of Land Management policy and legal tools to make federal forests less vulnerable to catastrophic wildfire, insects and disease while putting more Americans back to work in the woods. We hope you will act on this legislation or pass similar legislation to restore the health of our forests and communities.

Another encouraging proposal is the National Forest Ecosystem Improvement Act (S. 1691) introduced by Sen. John Barrasso of Wyoming. It builds on past bipartisan efforts to implement restoration projects to contain insect and disease infestations, reduce hazardous fuels, protect watersheds and improve wildlife habitat.

AN EQUAL OPPORTUNITY EMPLOYER

Senator Ron Wyden Senator Jeff Merkley July 22,2015 Page 2

S. 1691 would address key factors limiting the management of our federal forests today, including litigation and the cost and time required for the Forest Service to satisfy the analysis paralysis that constrains forest restoration projects. It also sets reasonable acreage goals for annual mechanical treatment levels and builds upon many existing authorities to streamline project planning and implementation for a limited subset of forestry projects, including those developed by collaboratives. It also seeks to reign in the serial litigation that is holding back forest restoration efforts.

The U.S. House has passed federal forest reforms three times within the past three years. We urge you and the Senate to take up legislation to address the threats facing our forests and communities. Please support HR 2647, S. 1691 or other meaningful measures to restore our federal forests and put more Americans back to work in the woods.

Sincerely,

BOARD OF COMMISSIONERS FOR TILLAMOOK COUNTY, OREGON

~~' Tim Josi, Chairpe };;:

Bill Baertlein, Commissioner

G:LETTERS\SUPPORT\S. 1691 -National Forest Ecosystem Improvement Act. doc

AN EQUAL OPPORTLNITY EMPLOYER

Tillamook County

Land o(Chcese. l'ree.\ and Ocean Bree:::c

July 22, 2015

Senator Barrasso Chairman Subcommittee on Public Land, Forests & Mining 304 Dirksen Senate Office Building Washington DC 20510

RE: S. 1691- National Forest Ecosystem Improvement Act

Dear Chairman Barrasso:

Board of Commissioners Tim Josi. Mark Labhart. Bill Baertlein

20 I Laurel Avenue Tillamook, Oregon 97141

Phone 503-842-3403 Fax 503-842-1384

TTY Oregon Relay Service

Oregon's federal forests and our rural communities are in danger due to a lack of active management.

According to the Forest Service, over 65 million acres of national forest lands are in need of treatment due to poor forest health associated with insects, disease, a century of fire suppression and the resulting build-up of hazardous fuels. The lack of early successional forests has degraded wildlife habitat, and the decline of logging and other forest management activities have cost thousands of Oregon family-wage jobs.

Today the Forest Service spends more than 40 percent of its budget on fire suppression, and more than $350 million on environmental analysis and regulatory compliance. These rising costs are associated with excessive litigation that allows some activist organizations to obstruct projects and profit at the expense of American taxpayers.

The status quo is not working. On July 9, 2015 the U.S. House of Representatives approved H.R. 2647 to give the Forest Service and the Bureau of Land Management policy and legal tools to make federal forests less vulnerable to catastrophic wildfire, insects and disease while putting more Americans back to work in the woods. We hope the Senate will act on this legislation or pass similar legislation to restore the health of our forests and communities.

The National Forest Ecosystem Improvement Act (S. 1691) is an encouraging proposal that builds on past bipartisan efforts to implement restoration projects to contain insect and disease infestations, reduce hazardous fuels, protect watersheds and improve wildlife habitat.

AN EQUAL OPPORTUNITY E\IPLOYER

Senator Barrasso, Chairman July 22, 2015 Page 2

S. 1691 would address key factors limiting the management of our federal forests today, including litigation and the cost and time required for the Forest Service to satisfy the analysis paralysis that constrains forest restoration projects. It also sets reasonable acreage goals for annual mechanical treatment levels and builds upon many existing authorities to streamline project planning and implementation for a limited subset of forestry projects, including those developed by collaboratives. It also seeks to reign in the serial litigation that is holding back forest restoration efforts.

We urge the Senate to take up legislation to address the threats facing our forests and communities. We strongly supportS. 1691, which brings meaningful measures to restore our federal forests and put more Americans back to work in the woods.

Sincerely,

BOARD OF COMMISSIONERS FOR TILLAMOOK COUNTY, OREGON

'/--~/' ···~

Ti: Josi, Chai~

Bill Baertlein, Commissioner

G;/LETTERS\SUPPORnS 1691 -National Forest Ecosystem Improvement Act 2015.doc

AN EQUAL OPPORTCNITY EMPLOYER

Tillamook County DEPARTMENT OF COMMUNITY DEVELOPMENT BUILDING, PLAlvNING & ON-SITE SANITATION SECTIONS

1510 - B Third S tree! Tillamook, Oregon 97141

www. ti llamoo k.or. us

Building (503) 842-3407 Planning (503) 842-3408

On-Site Sanitation (503) 841-3409 FA,\:(503) 842-1819

Toll Free I (800) 488-8280

RECONSIDERATION OF AN AMENDMENT OF THE TILLAMOOK COUNTY COMPREHENSIVE PLAN. A COMPREHENSIVE PLAN

MAP AMENDMENT AND AN AMENDMENT OF THE TILLAMOOK COUNTY LAND USE ORDINANCE (No. 33)

TILLAMOOK COUNTY BOARD OF COMMISSIONER HEARING DATE: Wednesdav, Julv 22,2015

ORDINANCE AMENDMENT REQUEST OA-14-01: The Tillamook County Board of Commissioners (Board of Commissioners) will consider actions necessary to respond to the Land Use Board of Appeals (LUBA) remand of OA-14-01. Seabreeze Assoc. v. Tillamook County, _Or LUBA _, LUBA No. 2014-106, (2015). The remanded decision legislatively amended the Tillamook County Comprehensive Plan Goal 18 Beaches and Dune Element and Section 4: Supplementary Regulations of the Tillamook County Land Use Ordinance in accordance with Statewide Planning Goal !8: Beaches and Dunes, and incorporated the policies contained in the Neskowin Coastal Erosion Adaption Plan for properties located within the Unincorporated Community of Neskowin.

STAFF REPORT DATE: July 15,2015 PREPARED BY: Sarah Absher, Senior Planne~

I. SUMMARY OF PROCEEDINGS

The Planning Commission held two public hearings on this request: July 10,2014 and August 14, 2014. Upon conclusion of these hearings, the Planning Commission unanimously voted (6 to 0) to recommend approval of OA-14-0 l to the Board of Commissioners with amendments to the proposed code language. The Board of Commissioners heard this matter on October 8, 2014 and October 29, 2014. Upon

LUBA Final Order & Opinion re OA.-14-01 1

conclusion of this hearing, the Board of Commissioners unanimously voted to approve Ordinance Amendment request OA-14-01 as recommended by the Planning Commission. The Board of Commissioner's decision was appealed to LUBA. LUBA issued the Final Opinion and Order (LUBA No. 2014-106) on April16, 2015.

II. SUMMARY OF OPINION AND ORDER: REMAND OF THE SECOND ASSIGNMENT OF ERROR:

Petitioners made six assignments of error in their appeal to LUBA. Petitioners had not raised any of their assignments of error during the county's proceedings on this legislative comprehensive plan and land use regulation amendment; therefore, this remand proceeding offers the first opportunity for the Board of Commissioners to make findings regarding the issues raised by petitioners. In their final Opinion and Order, LUBA denied the first, third, fourth, fifth and sixth assignments of error (summarized below). The purpose of this hearing is for further review of the Second Assignment of Error, which LUBA sustained in part and remanded to the county for further consideration.

First Assignment of Error: The Petitioners argued that the County's decision included no findings addressing compliance with any of the statewide planning goals and listed only Statewide planning Goals 7 (Areas Subject to Natural Hazards), 14 (Urbanization) and 18 (Beaches and Dunes) as applicable. The petitioners argued that other goals were also applicable, specifically Goal 2 (Land Use Planning) and Goal I 0 (Housing), and that the County erred in failing to adopt fmdings that addressed those applicable goals.

The adoption of Ordinance Amendment request OA-14-01 was a legislative decision. LUBA found that in this case no statute, goal or administrative rule required the county to adopt findings for a legislative decision to address the applicable statewide planning goals and that the absence of findings is not, in itself, a basis for remand. The first assignment of error was denied and the County is not required to further consider or address this matter.

Second Assignment of Error: The Petitioners argued that the county erred in failing to consider whether adoption ofthe Nesk-CH zone is consistent with the Goal 10 Housing Element of the Tillamook County Comprehensive Plan and Statewide Planning Goal 10. The second assignment of error was sustained in part and is further addressed later in this report.

Tbird Assignment of Error: The Petitioners argued that the County failed to adopt a usable map or legal description of the area that the Nesk-CH zone applies to, and that the maps in the record adopted by the County are too small or indefinite to allow affected property owners to determine whether or not their property is subject to the Nesk-CH zone.

The maps in the record transmitted to LUBA were reduced in size for convenience. It was recognized that the original map adopted by the County is a much larger version produced from a GIS digital database that depicts the boundary of the Nesk-CH zone in relation to tax lots at a "suitable scale and level of detail". The third assignment of error was denied and the County is not required to further consider or address this matter.

Fourtb Assignment of Error: The Petitioners contended that application of Leathers v Marion County,

LUBA Final Order & Opinion re 0.4-14~01 2

31 Or LUBA 220 (1996) required Tillamook County to adopt a new goal exception for Neskowin. The Petitioners argued that because the County's decision changes the type or intensity of uses allowed in an exception area, the County must adopt a new goal exception. It was argued by the respondents that Leathers involved land that was subject to a "reasons" exception to Goals 3 and 4, which requires that the local government adopt a new reasons exception to change the types or intensities of uses allowed in an area subject to a "reasons" exception.

The exceptions adopted for Neskowin are not reasons exceptions, but physically developed or irrevocably committed exceptions. The fourth assignment of error was denied and the County is not required to further consider or address this matter.

Fifth Assignment of Error: The Petitioners argued that the County's decision is inconsistent with two GoallO Housing Element policies: Policy 3.7 and Policy 3.8. Housing Policy 3.7 states that the County will encourage development that can be efficiently converted to high densities in urban and rural areas where there is a possibility of conversion to urban development. The petitioners argued that the Nesk­CH zone is inconsistent with Policy 3.7 because it precludes high density development within areas of Neskowin.

Housing Policy 3.8 states, "Tillamook County will modify its zoning ordinance to increase possibilities for construction [of] multi-family housing in medium density urban residential zones."

LUBA denied the fifth assignment of error and the County is not required to further consider or address this matter. Neskowin is not mentioned in the areas where this policy is intended to apply and no reasons were offered by the petitioners to believe that Neskowin is a rural area "where there is a possibility of conversion to urban development" within the meaning of Policy 3.7. Additionally, the Nesk-CH overlay zone is not applied to any "medium density urban residential zone" nor does such zone exist within the rural community of Neskowin.

Sixth Assignment of Error: The Petitioners contended that the adoption of the Nesk-CH zone violates two county code provisions: TCLUO Section 2.020(1) and Section 10.050. The Petitioners argued that the County's decision directs that the Nesk-CH zone maps be attached to the Neskowin Community Plan, but fails to direct that the official zoning map be amended to depict the new Nesk-CH zone boundaries.

The County did revise the official zoning map as required by TCLUO Section 2.020(1) and the map is available in County offices. The Nesk-CH overlay zone has also been added to the County GIS system. LUBA found that Section 2.020(1) is properly understood as a direction to County staff to amend the official zoning map to reflect an adopted change, "which the county has apparently done".

Section 10.050(1) states that all fees shall be set by adoption of an order by the Tillamook County Board of Commissioners. A new provision of the Nesk-CH zone allows planning staff to determine whether a licensed or certified professional must be retained, at the applicant's expense, to conduct additional review of a coastal hazard area permit. It was argued that the requirement for an applicant to pay for additional review constitutes a "fee" that under Section I 0.050 can only be assessed by an authorized fee by order. Because the Nesk-CH zone was adopted without such an order, the Petitioners argued that Section 10.050 had been violated.

LUBA Final Order & Opinion re OA-14~01 3

Section I 0.050 does not require a fee authorized in an ordinance be accompanied by an order setting the fee and that no fee or application expense can become effective or assessed unless and until the Board of Commissioners adopts an order amending the County's fee schedule. LUBA generally agreed that the Petitioners did not demonstrate that Section 10.050 required an order setting a "fee". The sixth assignment of error was denied and the County is not required to further consider or address this matter.

III. SECOND ASSIGNMENT OF ERROR

LUBA noted that Statewide Planning Goal I 0 and the needed housing statutes generally do not impose planning obligations on counties for lands within a rural unincorporated community such as Neskowin, or other rural lands outside urban growth boundaries and as a matter of law, such rural lands are not "buildable lands". LUBA went on to identify the only possible way that application of the Nesk-CH zone could directly implicate Goal 10 or the needed housing statutes: if the County relied on residential land within Neskowin in determining the amount of buildable land needed within urban growth boundaries to meet the County's planning obligations under Goal10.

LUBA concluded that it could not tell from the record or those portions of the County's Housing Element what role, if any, residential lands within Neskowin play in the County's Goal 10 inventory. Referencing the language and tables in the 1984 Housing Element, LUBA discerned that while in adopting the 1984 Housing Element, the County recognized it was not required to inventory rural lands as part of its Goal I 0 inventory, the County deliberately chose to do so to ensure housing needs are being met in unincorporated areas.

LUBA held that the 1984 Housing Element specifically addresses housing supply and need in Neskowin, and appears to rely on Neskowin to supply at least 418 housing units to meet demand for housing in at least the southern portion of the County, which includes no incorporated areas or urban growth boundaries. However, LUBA could not confirm that residential lands within Neskowin were identified and inventoried only to meet local, rural housing needs, or that such lands were not intended to meet housing needs that Goal I 0 requires be met on buildable lands within urban growth boundaries because the County's decision included no findings or consideration of Goal 10 or the County's Housing element. Absent findings or stronger evidence, LUBA could not agree that the adoption of the Nesk-CH zone would have no impact on the County's Goal 10 inventory of buildable lands within urban growth boundaries.

On remand, LUBA also recommended that the County consider the related question of whether the Nesk-CH zone is consistent with the Housing Element itself, even if the County concludes that residential lands 'Within Neskowin serve only local, rural housing needs and play no role in meeting the County's Goal 10 obligation to provide an adequate supply of buildable land within urban growth boundaries. LUBA identified, but could not resolve on the record before it, the possibility that Neskowin's ability to supply the 418 housing units that the Housing Element anticipates Neskowin will provide would be impacted by the reduction in capacity of the residential land that is subject to the Nesk-CH zone within Neskowin.

Ll'BA Final Order & Opinion re OA-14-0l 4

-~

IV. STAFF ANALYSIS

Application of Goal 10

Although LUBA concluded that it could not tell from the record or those portions of the County's Housing Element what role, if any, residential lands within Neskowin play in the County's Goal 10 inventory, as a matter of law, needed housing required by Goal I 0 must be accommodated within urban growth boundaries (UGB). All of the seven incorporated cities within Tillamook County have established urban growth boundaries as a part of their respective comprehensive plans, and the Land Conservation and Development Commission (LCDC) has acknowledged each of these plans to be in compliance with the Statewide Planning Goals, including Goal I 0. A prerequisite for acknowledgement of compliance with Statewide Planning Goal I 0 is a determination that all needed housing identified in a city's housing analysis can be adequately accommodated on lands within the city's urban growth boundary. Alternatively, if a city determines that some portion of needed housing, or a particular needed housing type, cannot be provided for within the UGB, then that city must incorporate a Goal 2, Part II exception to Goal 10, pursuant to ORS 197.303(3) and OAR 660-008-0035, into its comprehensive plan. No city in Tillamook County has incorporated a Goal 10 exception into its comprehensive plan. Therefore, through the acknowledgement of compliance process, the urban growth boundaries of the seven incorporated cities within Tillamook County have been determined by LCDC to adequately provide for all identified needed housing in Tillamook County as required by Goal 10, and no rural lands within Tillamook County serve any role in accommodating needed housing pursuant to GoallO.

Consistency with Comprehensive Plan Housing Element

Neskowin is considered to be a Rural Community and is identified as such throughout the Comprehensive Plan. Specifically, the Goal 10 Housing Element of the Tillamook County Comprehensive Plan identifies a need to accommodate 418 additional housing units in Neskowin which, by definition, serve local rural housing needs.

In 1997, the County conducted an inventory of vacant residential land within the Neskowin Community Boundary as part of the Neskowin Community Plan. This inventory determined that there were 553 existing vacant residential properties in Neskowin. The inventory further identified capacity to accommodate 1524 additional residential lots through land divisions permitted by existing zoning, for a total potential of2,077 new dwelling units, well in excess of the 418 additional housing units determined to be needed to meet local, rural housing needs.

The County recognized the excess of available land to support local, rural housing needs in Neskowin during the formulation of the Neskowin Community Plan. Policy 5.2(a) of the Neskowin Community Plan states that the Neskowin Community Boundary "shall be maintained in its current location because there is ample room within the boundary to accommodate growth consistent with the Rural Community designation into the foreseeable future ... "

Information obtained from the Tillamook County Assessor's Office indicates approximately 249 new single family dwellings were constructed within the Community Boundary of Neskowin since 1997, 83 of which were constructed between 1996 and 2000 (building permit issuance). Thus, of the identified

LUBA Final Order & Opinion re OA-14-0/ 5

need to accommodate 418 additional housing units in Neskowin, 249 have been constructed indicating that the remainder of housing units needed in Neskowin is 169.

As stated previously in this report, the inventory of vacant residential land within the Neskowin Community Boundary determined that there were 553 existing vacant residential properties in Neskowin for a total potential of 2,077 new dwelling units, well in excess of the 418 additional housing units determined to be needed to meet local, rural housing needs. Even with the remainder of 169 new dwelling units needed in Neskowin to serve local, rural housing needs, the 1997 inventory confirms a surplus ofland exists within Neskowin to accommodate the remaining needed 169 units.

Using the County GIS database, the Department of Community Development conducted a study to identify the amount of residential land within the boundary of the Nesk-CH overlay zone and how application of the Nesk-CH overlay zone would limit the residential development potential of these properties. Approximately 387 improved and unimproved properties (tax lots) were identified as being located within or partially within the Nesk-CH Overlay zone, encompassing approximately 320 acres of land. Of these properties (tax lots), 144 were identified by size alone to have enough land area for the construction of a two-family dwelling (as per TCLUO 3.322: Neskowin Low Density Residential Zone), provided all development standards and applicable supplemental standards of the TCLUO can be met. Of the 387 identified properties (tax lots), 106 are 15,000 square feet or larger and have the potential to be divided (as per TCLUO 3.322: Neskowin Low Density Residential Zone), provided all development standards and applicable supplemental standards of the TCLUO and TCLDO can be met.

It is important to note that existing zoning restrictions, land division restrictions and other existing requirements may limit the ability to divide properties within the Nesk-CH overlay zone. Examples include limited means of access. the location of existing easements, natural features or hazards, restrictions due to the location of the established Oceanfront Setback Line, and Goa/18 restrictions.

At the conclusion of a preliminary review of these 106 properties, while taking into account any of the factors mentioned above, it was concluded that one (1) vacant residentially zoned property located partially within the Nesk-CH overlay zone, approximately 3.24 acres in size, would be impacted by the limitations of the Nesk-CH overlay zone.

While implementation of the Nesk-CH overlay zone impacts approximately 3.24 acres of land, or approximately 10% of land area within the Nesk-CH overlay zone that could otherwise be divided for residential development of single family dwellings, the above findings strongly support that implementation of the Nesk-CH overlay zone will not impact Neskowin's ability to meet its local, rural housing needs.

V. RECOMMENDATION

Based on the above analysis, the Department recommends that the board enter the following decision:

The Board of Commissioner's decision in the matter of OA-14-01 to amend the Tillamook County Comprehensive Plan Goal 18 Beaches and Dune Element and Section 4: Supplementary Regulations of the Tillamook County Land Use Ordinance in accordance with Statewide Planning Goal 18: Beaches and Dunes, and incorporate the policies contained in the Neskowin Coastal Erosion Adaptation Plan for

LUBd Final Order & Opinion re OAHI4-0l 6

properties located within the Unincorporated Community of Neskowin is hereby affirmed without

amendment.

In support of this decision and to address the directives of LUBA No. 2014-106 Final Opinion and Order, the Board of Commissioners hereby incorporates the following supplementary findings:

1. The board finds, consistent with the provisions of Goal 10, OAR chapter 660, division 8, and ORS

197.295 through 197.314, that: (a) The needed housing requirements of Statewide Planning Goal 10 do not apply to the rural

lands of Neskowin; (b) No lands within the Neskowin Community Boundary have been relied upon to fulfill the

needed housing requirements of Goal 1 0; (c) The actions taken by the board to adopt and apply the Nesk-CH overlay zone in no way impact the adequacy of the supply of buildable lands within Tillamook County which, by

definition, are located only within urban growth boundaries; and (d) In adopting and applying the Nesk-CH overlay zone, the county is not obligated to comply with the regional coordination process set forth in OAR 660-008-0030.

2. The Board further finds: (a) The Goal 1 0 Housing Element of the Tillamook County Comprehensive Plan identifies the need for 418 additional housing units in Neskowin to serve local, rural housing needs. (b) The Neskowin Community Plan vacant lands inventory identifies 553 vacant residential lots and the potential for the creation of an additional 1524, for a total of2077, well in excess of the 418 additional housing units needed to serve Neskowin's local, rural housing needs. (c) The number of potential lots that could be created in the overlay zone may be limited to less than what could actually be permitted, however there would still be an excess land area to satisfy the amount identified to serve Neskowin' s local, rural housing needs. (d) The application of the Nesk-CH overlay zone is fully consistent and in no way conflicts with the identified needs for local, rural housing in the Goal 10 Housing Element of the Tillamook

County Comprehensive Plan.

Exhibit A: LUBA Final Opinion and Order dated Aprill6, 2015

LUBA Final Order & Opinion re OA-14-01 7

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23

BEFORE THE LAND USE BOARD OF APPEALS

OF THE STATE OF OREGON

SEABREEZE ASSOCIATES LIMITED PARTNERSHIP and FREDERICK QUIRIN,

Petitioners,

vs.

TJLLAMOOK COUNTY, Respondent,

and

OREGON DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT and VICTOR AFFOLTER,

Intervenors-Respondents.

LUBA No. 2014-106

FINAL OPINION AND ORDER

24 Appeal from Tillamook County. 25 26 Damien R. Hall, Portland, filed the petition for review and argued on 27 behalf of petitioners. With him on the brief was Ball JanikLLP. 28 29 William K. Sargent, County Counsel, Tillamook, filed a joint response 3 0 brief on behalf of respondent. 31 32 Steven E. Shipsey, Assistant Attorney General, Salem, filed a JOIDt 33 response brief and argued on behalf of intervenor-respondent Oregon 34 Department of Land Conservation and Development. 35 36 Courtney Johnson, Portland, filed a joint response brief on behalf of 37 intervenor-respondent Victor Affolter. With her on the brief was Crag Law 38 Center. 39

Page 1

RXHIBIT A

1 2 3 4 5

BASSHAl\1, Board Member; RYAN, Board Chair; HOLSTUN, Board Member, participated in the decision.

REMANDED 04/16/2015

6 You are entitled to judicial review of this Order. Judicial review is 7 governed by the provisions ofORS 197.850.

Page 2

1 Opinion by Bassham.

2 ~ATURE OF THE DECISION

3 Petitioners appeal a legislative decision that in relevant part adopts a

4 Coastal Hazards Overlay zone (the Nesk CH zone) that limits land divisions

5 and development on lands subject to coastal erosion in the rural unincorporated

6 community ofNeskowin.

7 MOTION TO FILE REPLY BRIEF

8 Petitioners move to file a reply brief to address standing and other issues

9 raised in the joint response brief. There is no opposition to the motion or reply

10 brief, and it is allowed. 1

11 FACTS

12 Neskowin is designated in the county's comprehensive plan as a rural

13 unincorporated community. In 2009, in response to extensive beachfront

14 erosion caused by winter storms, the county formed the Neskowin Coastal

15 Hazards Committee to study and recommend means to protect Neskowin from

16 further erosion and coastal flooding. The resulting document, the Neskowin

17 Coastal Erosion Adaptation Plan, included a recommendation to create an

18 overlay zone, the Nesk CH zone, covering approximately 320 acres of

19 Neskowin, which is intended to reduce the vulnerability of new development to

20 coastal erosion hazards.

21 Among other restrictions, the Nesk CH zone limits land divisions,

22 prohibits construction on newly created lots, prohibits new accessory dwelling

23 units, requires all new structures to be movable and located in the safest area of

24 a site, and imposes geological reporting standards. The Nesk CH overlay zone

1 The standing challenge was withdrawn at oral argument.

Page 3

1 is applied to portions of several residential base zones within Neskowin,

2 including the Nesk RR (Rural Residential) zone, the Nesk R-1 (Low Density

3 Rural Residential) zone, and the Nesk R-3 (High Density Rural Residential)

4 zone. Tbe Nesk R-3 base zone allows multi-family dwellings and planned

5 development with attached single family dwellings. However, under the Nesk

6 CH overlay zone, new residential development is generally restricted to one

7 single-family dwelling per existing lot.

8 The county planning commission conducted public hearings on the

9 proposed comprehensive plan and land use regulations, and recommended

10 approval to the county board of commissioners. The commissioners conducted

11 public hearings and, on November 5, 2014, adopted Ordinance OA-14-01

12 approving the amendments. This appeal followed.

13 FIRST ASSIGNlVIENT OF ERROR

14 Petitioners argue that the county's decision includes no findings

15 addressing compliance with any of the statewide planning goals. According to

16 petitioners, the staff reports to the planning commission and the county board

17 of commissioners listed only Statewide Planning Goals 7 (Areas Subject to

18 Natural Hazards), 14 (Urbanization) and 18 (Beaches and Dunes) as applicable.

19 For the reasons stated in the second and third assignments of error, petitioners

20 argue that other goals were also applicable, specifically Statewide Planning

21 Goal 2 (Land Use Planning) and 10 (Housing), and the county therefore erred

22 in failing to adopt findings addressing those applicable goals.

23 The parties agree that the county's decision is a legislative decision, and

24 that in the present case no statute, goal or administrative rule requires the

25 county to adopt findings addressing the applicable statewide planning goals.

Page4

1 Absent such a requirement, the mere absence of findings addressing goals

2 applicable to a legislative decision is not, in itself, a basis for remand?

3 However, the only applicable goals petitioners cite to are Goals 2 and 10,

4 which are the subject of the second and third assignments of error. Petitioners'

5 arguments under the first assignment of error appear to be entirely derivative of

6 arguments made under the second and third assignments of error, and therefore

7 provide no independent basis for reversal or remand. Accordingly, the first

8 assignment of error is denied.

9 SECOND ASSIGNMENT OF ERROR

10 Under the second assignment of error, petitioners argue that the county

11 erred in failing to consider whether adoption of the Nesk CH zone is consistent

12 with the Housing Element of the county's comprehensive plan and Statewide

13 Planning GoallO (Housing).

14 Goal 10 is "(t]o provide for the housing needs of citizens of the state."

15 Goal 10 requires that "Buildable lands for residential use shall be inventoried

16 and plans shall encourage the availability of adequate numbers of needed

17 housing units at price ranges and rent levels which are commensurate with the

18 financial capabilities of Oregon households and allow for flexibility of housing

19 location, type and density." Goal 10 and ORS 197.295(1) define "buildable

20 lands" as "lands in urban and urbanizable areas that are suitable, available and

21 necessary for residential use." See also OAR 660-008-0005(2) (similar

2 That said, in order for LUBA and the Court of Appeals to exercise their review functions, at a minimum "there must be enough in the way of findings or accessible material in the record of the legislative act to show that applicable criteria were applied and that required considerations were indeed considered." Citizens Against Irresponsible Growth v. Metro, 179 Or App 12, 16 n 6, 3 8 P3d 956 (2002).

Page 5

1 definition in the administrative rule implementing Goal 10 and the needed

2 housing statutes). As defined in the Goals, "urban" and "urbanizable" lands

3 refer to lands within urban growth boundaries. Thus, as a general rule, GoallO

4 imposes specific planning obligations only for lands within urban growth

5 boundaries.

6 One of the ftmdarnental obligations under Goal 10 and related rules and

7 statutes is to provide for a supply of buildable land that is sufficient to meet the

8 projected housing needs for the relevant 20-year planning period. See generally

9 ORS 197.296(2) through (7). To oversimplify, local governments that are

10 subject to that obligation must inventory the existing supply of buildable lands

11 within the urban growth boundary under consideration, project housing need

12 for the relevant planning period based on population growth and other factors,

13 and then take specified actions necessary to ensure there is an adequate supply

14 of buildable land within the urban growth boundary during that planning

15 period. The county, as the coordinating body, is responsible for coordinating

16 population projections and the efforts of incorporated cities within its

17 boundaries to meet their Goal 10 obligations.

18 The county's comprehensive plan Housing Element, adopted in 1982 and

19 acknowledged in 1984 to comply with Goal 10, evaluates housing needs

20 throughout the county, including rural lands outside urban growth boundaries,

21 for the period 1980 to 2000.3 The Housing Element includes inventories of

22 residential land and projections of additional housing needed within Neskowin

23 and other unincorporated communities.

3 As far as we are informed, the county's Goal 10 inventory has not been amended since its adoption to include a projection of housing need and supply beyond the year 2000.

Page 6

1 A. Consistency with GoallO and Housing Element

2 Petitioners contend, and respondents do not dispute, that the Nesk CH

3 zone effectively reduces capacity for new residential development in the

4 unincorporated rural community of Neskowin. Petitioners argue that the

5 county's Goal 10 inventory relies upon the capacity and supply of residential

6 land within Neskowin to satisfy the demand for needed housing in the county.

7 Because the Nesk CH zone effectively reduces the supply of land in the

8 county's Goal 10 inventory, petitioners argue, the county must evaluate

9 whether application of the Nesk CH zone is consistent with the county's

10 obligations under Goal 10 to provide for an adequate supply of buildable land.

11 However, petitioners note, the county adopted no findings regarding Goal l 0,

12 and apparently did not consider whether the Nesk CH zone is consistent with

13 GoallO.

14 Respondents dispute that Goal 10 applies or imposes any obligations on

15 lands within a rural unincorporated community such as Neskowin.

16 Respondents note, correctly, that Goal 10 generally imposes planning

17 obligations on local governments only for urban and urbanizable lands -within

18 urban growth boundaries. The only exception, respondents argue, is with

19 respect to expansion of urban unincorporated communities, pursuant to OAR

20 660-022-0040. 4

4 OAR 660-022-0040 provides standards for planning and expansion of urban unincorporated communities (lJLJCs). OAR 660-022-0040(1) provides that "[a ]11 statewide planning goals applicable to cities shall also apply to LuCs, except for those goals provisions relating to urban growth boundaries and related requirements regarding the accommodation of long-term need for housing and employment growth." OAR 660-022-0040(5)( d) provides that if a county expands a UUC in order to accommodate long-term need for housing in

Page 7

1 With respect to the county's Housing Element, respondents dispute that

2 the Housing Element or the county's buildable lands inventory relies on the

3 residential-zoned lands in Neskowin to meet the identified housing needs of the

4 county. According to respondents, the language petitioners cite in the Housing

5 Element that discuss application of Goal 10 to rural communities such as

6 Neskowin are simply noting the existence of"additional housing opportunities"

7 in rural areas, and were not intended to identify such rural lands as part of the

8 county's GoallO needed housing inventory. Response Brief 15.

9 Alternatively, respondents note that in 1999 the county adopted the

10 Neskowin Community Plan (NCP), in part to comply with the requirements of

11 OAR chapter 660, division 022, the unincorporated communities rule, which

12 had been promulgated in 1994. Respondents contend that the 1999 NCP is

13 acknowledged to comply with the statewide planning goals, including Goal10,

14 and that the sections of the NCP addressing residential use and Goal10 do not

15 identify residential-zoned lands within Neskowin as needed housing or as part

16 of the county's buildable lands inventory. Respondents contend that the

17 specific language of the NCP replaces or supersedes the general language of

18 the county's Housing Element that discusses application of Goal 10 to rural

19 areas including Neskowin.

20 Petitioners reply that the Housing Element clearly regards residential

21 lands within Neskowin as part of the county's Goal 10 inventory of lands

22 necessary to satisfy the projected need for housing. Even if the county was not

the community, areas designated for residential use in the expansion area must meet "the requirements of statewide planning Goal 1 0[.]" There are no similar provisions governing planning and zoning of rural unincorporated communities.

Page 8

1 required to include such lands in its Goal 10 buildable lands inventory,

2 petitioners argue, the county chose to do so, and that choice was acknowledged

3 by LCDC to comply with Goal 10. Under these circumstances, petitioners

4 argue, the county must demonstrate that effectively reducing the residential

5 capacity of land that was identified as needed to satisfy the county's projected

6 need for housing is consistent with Goal 10. With respect to the NCP,

7 petitioners argue that nothing cited in the NCP suggests that the NCP replaces

8 or supersedes the Housing Element.

9 As noted, Goal 10 and the needed housing statutes generally do not

10 impose planning obligations on counties for lands within a rural

11 unincorporated community such as Neskowin, or other rural lands outside

12 urban growth boundaries. By definition, such rural lands are not "buildable

13 lands." Under these circumstances, the only way that application of the Nesk

14 CH zone could directly implicate Goal 10 or the needed housing statutes is if

15 the county relied on residential land within Neskowin in determining the

16 amount of buildable land needed within urban growth boundaries to meet the

17 county's planning obligations under Goal 10. In other words, if in adopting the

18 Housing Element the county and cities effectively undersized the urban growth

19 boundaries within its borders, in partial reliance on rural land within Neskowin

20 to meet its identified need for buildable land, then we believe the county could

21 not adopt the Nesk CH zone to reduce the residential capacity within Neskowin

22 without considering the impact of that action on the adequacy of its Goal 10

23 inventory of buildable lands within urban growth boundaries. However, if the

24 supply of buildable land within urban growth boundaries fully met the county's

25 Goal 10 planning obligations, and residential lands within Neskowin are

26 intended to meet only local, rural housing needs, then adoption of the Nesk CH

Page 9

1 zone does not implicate the supply of buildable land in the county, and thus

2 does not implicate Goal 10 or trigger any obligations under the needed housing

3 statutes.

4 Unfortunately, we cannot tell from the record or the portions of the

5 Housing Element provided to us what role, if any, residential lands within

6 Neskowin play in the county's Goal 10 inventory. Based on language and

7 tables in the 1984 Housing Element, it is reasonably clear that while the county

8 recognized that it was not required to inventory rural lands as part of its Goal

9 10 inventory, the county deliberately chose to do so. The Housing Element

10 states: "Although building lands inventories are only required for incorporated

11 areas the County is inventorying buildable lands for unincorporated areas to

12 assure that housing needs are being met in these areas." Housing Element 2.3

13 (Petition for Review Exhibit 4-3 8). Indeed, the Housing Element notes that the

14 "primary purpose of this projection [of housing need] is to determine housing

15 needs in unincorporated areas of the County[,]" because housing needs in

16 incorporated areas had already been developed in coordination with each city

17 within the county. Housing Element 1.5 (Petition for Review Exhibit 4-30).

18 The Housing Element specifically addresses housing supply and need in

19 Neskowin. Housing Element Table 39 projects the need for 1,310 additional

20 housing units in the southern portion of the county that includes Neskowin.

21 Petition for Review Exhibit 4-34. Table 42 assigns to Neskowin 418 of the

22 1,310 housing units needed in the southern portion of the county, out of a total

23 of some 15,000 additional housing units needed in the county as a whole for

24 the period 1980 to 2000. Exhibit 4-35. Thus, the Housing Element appears to

25 rely on Neskowin to supply at least 418 housing units to meet demand for

Page 10

1 housing in at least the southern portion of the county, which includes no

2 incorporated areas or urban growth boundaries.

3 The above-quoted passages from the Housing Element can be read to

4 suggest that residential lands within Neskowin were identified and inventoried

5 only to meet local, rural housing needs, and such lands were not intended to

6 meet housing needs that Goal 10 requires be met on buildable lands within

7 urban growth boundaries. However, we cannot say that for sure. As noted, the

8 county's decision includes no fmdings regarding Goal 10 or the Housing

9 Element, and apparently the county did not consider Goal 10 or the Housing

10 Element during the proceedings below. Absent some fmdings or stronger

11 evidence on this point, we are not in a position to agree with respondents that

12 adoption of the Nesk CH zone could have no impact on the county's Goal 10

13 inventory of buildable lands within urban growth boundaries. Remand is

14 necessary for the county to consider that possibility.

15 In addition, on remand the county should consider the related question of

16 whether the Nesk CH zone is consistent with the Housing Element itself, even

17 if the county concludes that residential lands within Neskowin serve only local,

18 rural housing needs and play no role in meeting the county's Goal 10

19 obligation to provide an adequate supply of buildable land within urban growth

20 boundaries. Generally, land use decisions, including adoption of new zones,

21 must comply with acknowledged comprehensive plans. ORS 197.175(2)(d).

22 As explained above, the Housing Element seems to rely on Neskowin to supply

23 418 housing units to meet at least local housing demand. Because the Nesk CH

24 zone reduces capacity of residential land within Neskowin, it is possible that

25 the Nesk CH zone impacts Neskovvin's ability to supply the housing units that

26 the Housing Element anticipates Neskowin will provide.

Page 11

1

1 On this point, the 1999 Neskowin Community Plan or NCP may be

2 relevant. As explained above, respondents argue that the 1999 NCP replaced

3 or superseded the Housing Element with respect to Neskowin. However,

4 nothing cited to us in the NCP suggests an intent to replace or supersede the

5 Housing Element as it applies to Neskowin. Instead, what the NCP arguably

6 does is refine the Housing Element as it applies to Neskowin. We note that

7 NCP 5.4 includes a vacant lands inventory, indicating that in 1997 there were

8 1,084 existing residential lots and 531 existing dwellings, leaving 553 existing

9 vacant residential-zoned lots within the Neskowin unincorporated area.

10 Response Brief, Exhibit 1-21. Further, NCP 5.4 indicates that a potential1,524

11 new residential lots could be created, which combined with existing vacant lots

12 could potentially provide 2,077 new dwelling units. ld. NCP 5.4 ultimately

13 concludes that it would take 56 years to reach the maximum residential

14 capacity within the existing Neskowin unincorporated area, assuming the then-

15 current 2.5 percent annual growth rate continues. !d. For that reason, among

16 others, the NCP concludes that there is no need to consider expanding the

17 Neskowin unincorporated area.

18 The NCP vacant lands inventory indicates that in 1997 the Neskowin

19 unincorporated area had significant excess residential capacity, far more than

20 needed to supply the 418 additional dwelling units identified in the Housing

21 Element. Even if those 418 housing units are necessary to meet local housing

22 needs, as projected in the Housing Element, then the excess inventory

23 identified in the acknowledged NCP suggests there may be little risk that the

24 Nesk CH zone would impact Neskowin's ability to provide the 418 housing

25 units that the Housing Element says are needed.

Page 12

1 However, that is a judgment the county is in a better position to make.

2 On the present record and pleadings, Ll:JBA does not have a basis to conclude,

3 absent findings or consideration of the issue by the county, that application of

4 the Nesk CH zone is consistent with the Housing Element. Remand is

5 necessary for the county to consider that issue.

6 B. ORS 197.307(4) Needed Housing

7 Petitioners also argue that, because the county's Goal 10 inventory

8 identifies residential development within Neskowin as "needed housing," the

9 requirements of ORS 197.307(4) therefore apply. ORS 197.307(4) prohibits

10 local governments from applying standards to needed housing that are not clear

11 and objective.5 According to petitioners, several Nesk CH standards, such as

5 ORS 197.303(1) defines "needed housing" in relevant part as "housing types determined to meet the need shown for housing within an urban growth boundary at particular price ranges and rent levels[.]" ORS 197.307 provides, in relevant part:

"(3) When a need has been shown for housing within an urban growth boundary at particular price ranges and rent levels, needed housing shall be permitted in one or more zoning districts or in zones described by some comprehensive plans as overlay zones with sufficient buildable land to satisfy that need.

"( 4) Except as provided in subsection ( 6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay."

Page 13

I the requirement that development be located on the "most suitable" site, are not

2 clear and objective standards.

3 By its terms, ORS 197.307(4) applies only to "needed housing on

4 buildable land[.]" Seen 5. "Buildable land" for purposes of ORS 197.295 to

5 197.314 is, by definition, limited to "urban and urbanizable areas," i.e., land

6 located within an urban growth boundary. ORS 197.295(1).6 Thus, rural

7 residential zoning standards would not be subject to the requirements that apply

8 to "needed housing on buildable land," including the requirement at ORS

9 197.307(4) that only clear and objective standards and conditions be applied to

I 0 needed housing.

I 1 As explained above, there is a possibility that the county has relied upon

12 some residential lands in Neskowin in order to meet its Goal 10 obligation to

13 provide sufficient buildable lands within urban growth boundaries to meet

14 projected housing needs. If so, that means at a minimum that the county must

15 evaluate the adequacy of its Goal I 0 inventory of buildable lands within urban

16 growth boundaries without considering lands within Neskowin.

See also OAR 660-008-0015 (GoallO implementing rule providing that local governments may apply only clear and objective standards to needed housing on buildable land).

6 We note an additional reason why it makes little sense to view lands subject to the Nesk CH zone as "buildable lands" for any purpose, including ORS 197.307(4). The Goal 10 rule, at OAR 660-008-0005(2), defines "buildable lands" in relevant part to provide that land is not generally considered "suitable and available" for needed housing if it is "severely constrained by natural hazards as determined under Statewide Planning Goal 7" (Areas Subject to Natural Hazards). The Nesk CH zone was adopted in part to address hazards from coastal erosion and ocean flooding in portions of Neskowin, pursuant to Goal 7.

Page 14

1 In sum, remand is necessary for the county to first evaluate the role, if

2 any, that lands subject to the Nesk CH zone play in the county's Goal 10

3

4

inventory of buildable lands. If the county determines that residential lands

within Neskowin serve only local, rural housing needs, then no further

5 evaluation under Goal 10 is required. Second, the county should determine

6 whether applying the Nesk CH zone to residential lands within Neskowin is

7 consistent with whatever role those lands play in the Housing Element, to

8 ensure that the county's decision is consistent with the acknowledged Housing

9 Element, as modified or refined by the acknowledged NCP.

10 C. Coordination

11 Statewide Planning Goal 2 (Land Use Planning) requires the county to

12 coordinate its land use plans with the plans of other affected governmental

13 units. In addition, OAR 660-008-0030(1), part of the administrative rule that

14 implements Goal 10, requires the county to "consider the needs of the relevant

15 region in arriving at a fair allocation of housing types and densities."7

16 Petitioners contend that there is no indication in the record that the county

17 coordinated with other communities in the county in developing the Nesk CH

7 OAR 660-008-0030 is entitled "Regional Coordination," and provides:

"(1) Each local government shall consider the needs of the relevant region in arriving at a fair allocation of housing types and densities.

"(2) The local coordination body shall be responsible for ensuring that the regional housing impacts of restrictive or expansive local government programs are considered. The local coordination body shall ensure that needed housing is provided for on a regional basis through coordinated comprehensive plans."

Page 15

1 zone. According to petitioners, coordination is especially important in the

2 present case, because the reduced residential capacity in Neskowin will likely

3 shift demand for new coastal housing from Neskowin to other communities.

4 Respondents argue that OAR 660-008-0030(1), like other provisions of

5 the administrative rule implementing Goal 10, requires coordination only with

6 respect to decisions affecting needed housing on buildable lands within urban

7 growth boundaries, and the rule does not apply to decisions affecting

8 residential zones on rural lands outside urban growth boundaries. We partially

9 agree with respondents. OAR 660-008-0000, the rule's purpose statement,

10 states that the rule is intended to provide standards for compliance with Goal

11 10 and to implement ORS 197.303 through 197.307, the needed housing

12 statutes. As noted above, Goal 10 and the needed housing statutes impose

13 specific planning requirements only on lands within urban growth boundaries.

14 Generally, nothing in OAR 660 division 008 will apply to county land use

15 decisions affecting only land outside urban growth boundaries. However, it is

16 · possible on remand that the county will determine that application of the Nesk

17 CH zone impacts the adequacy of the county's Goal 10 inventory of buildable

18 lands, which by definition are located only within urban growth boundaries. If

19 so, it is possible that the county may find itself in a position where it is

20 obligated to "consider the needs of the relevant region in arriving at a fair

21 allocation of housing types and densities." In that circumstance, we agree with

22 petitioners that OAR 660-008-0030(1) would apply.

23 With respect to the general Goal 2 coordination requirement,

24 respondents argue that the record demonstrates that the county conducted

25 extensive outreach and coordination with a number of public entities, and that

26 petitioners do not identify any "affected governmental units" with whom the

Page 16

1 county failed to coordinate. Goal 2 defmes "affected governmental units" as

2 "local governments, state and federal agencies and special districts[.]" A "local

3 government" is generally a city or county. ORS 197.015(13). We agree with

4 respondents that, absent some effort to identify a specific city, county or other

5 governmental unit affected by the county's decision that the county failed to

6 coordinate with, petitioners have not demonstrated that the county violated the

7 general Goal 2 coordination requirement.

8 The second assignment of error is sustained, in part.

9 THIRD ASSIGNMENT OF ERROR

10 Petitioners argue that the county failed to adopt a usable map or legal

11 description of the area that the Nesk CH zone applies to, and that the maps in

12 the record adopted by the county are too small or indefinite to allow affected

l3 property owners to determine whether their property is subject to the Nesk CH

14 zone. Petitioners contend that the failure to adopt a usable map means that the

15 county's decision is not supported by an "adequate factual base," as required by

16 Goal2.

17 Respondents argue that the maps in the record transmitted to LUBA are

18 reduced in size for convenience, but that the original map adopted by the

19 county is a much larger version produced from a GIS digital database that

20 depicts the boundary of the Nesk CH zone in relation to tax lots at a suitable

21 scale and level of detail. Respondents request that LUBA take official notice

22 of that larger map, which respondents provided to LlJBA at oral argument.

23 Petitioners do not object to the request for official notice, and the request

24 is granted. The original map is at a scale and level of detail that makes it

25 possible to locate the Nesk CH boundary in relation to tax lots. Petitioners'

Page 17

1 arguments under this assignment of error do not provide a basis for reversal or

2 remand.

3 The third assignment of error is denied.

4 FOURTH ASSIGNMENT OF ERROR

5 Neskowin was designated as a rural unincorporated community based on

6 exceptions to Statewide Planning Goals 3 (Agricultural Land) or 4 (Forest

7 Lands) or both. Citing Leathers v. Marion County, 31 Or LUBA 220 (1996),

8 petitioners argue that because the county's decision changes the type or

9 intensity of uses allowed in an exception area, the county must adopt a new

10 goal exception.

11 Respondents argue that Leathers involved land that was subject to a

12 "reasons" exception to Goals 3 and 4, and therefore concerned application of

13 OAR 660-004-0018(4), which requires that the local government adopt a new

14 reasons exception to change the types or intensities of uses allowed in an area

15 subject to a "reasons" exception. According to respondents, the exceptions

16 adopted for Neskowin are not reasons exceptions, but physically developed or

17 irrevocably committed exceptions. Therefore, respondents argue, Leathers is

18 inapposite.

19 Petitioners offer no reason to doubt respondents' position that the

20 exceptions originally adopted for Neskowin were physically developed or

21 irrevocably committed exceptions to Goals 3 and 4, not reasons exceptions.

22 Accordingly, petitioners' arguments based on Leathers do not provide a basis

23 for reversal or remand. There are circumstances in which new exceptions to

24 the applicable goals are required in order to rezone areas subject to physically

25 developed or irrevocably committed exception areas, to allow new or different

26 uses, densities or public facilities than previously allowed. See OAR 660-004-

Page 18

1 0018(2) and (3); Ooten v. Clackamas County, 270 Or App 214, _ P3d _

2 (A158369), April 1, 2015 (discussing OAR 660-004-0018(2)).8 However,

8 OAR 660-004-0018 provides, in relevant part:

"(2) For 'physically developed' and 'irrevocably committed' exceptions to goals, residential plan and zone designations shall authorize a single numeric minimum lot size and all plan and zone designations shall limit uses, density, and public facilities and services to those:

"(a) That are the same as the existing land uses on the exception site;

"(b) That meet the following requirements:

"(A) The rural uses, density, and public facilities and services will maintain the land as 'Rural Land' * * *· ,

"(B) The rural uses, density, and public facilities and services will not commit adjacent or nearby resource land to uses not allowed by the applicable goal as described in OAR 660-004-0028; and

"(C) The rural uses, density, and public facilities and services are compatible with adjacent or nearby resource uses; [and]

"(c) For uses in unincorporated communities, the uses are consistent with OAR 660-022-0030 * * *

"* * * * *

"(3) Uses, density, and public facilities and services not meeting section (2) of this rule may be approved on rural land only under provisions for a reasons exception as outlined in section (4) of this rule***."

Page 19

1 petitioners do not address OAR 660-004-0018(2) or argue that application of

2 the Nesk CH zone in the present case triggers a need under that rule to adopt a

3 new exception.

4 The fourth assignment of error is denied.

5 FIFTH ASSIGNMENT OF ERROR

6 Petitioners contend that the county's decision is inconsistent with two

7 Housing Element policies.

8 Housing Element Policy 3.7 states that in "urban and rural areas where

9 there is a possibility of conversion to urban development, the County will

10 encourage development that can be efficiently converted to higher densities."

11 Petitioners argue that the Nesk CH zone is inconsistent with Policy 3.7,

12 because it precludes higher density development within areas of Neskowin.

13 However, as respondents note, the findings under Policy 3.7 specify areas in

14 the county where Policy 3.7 is intended to apply: "Places where low density

15 development may be transitory to urban development include some

16 unincorporated communities such as Cape Meares, Beaver, and Tierra Del Mar,

17 rural residential zoned areas near urban growth boundaries, and areas within

18 urban growth boundaries that are not yet serviced with sewer and water."

19 Policy 3.7 does not mention Neskowin, and petitioners offer no reason to

20 believe that Neskowin is a rural area "where there is a possibility of conversion

21 to urban development" within the meaning of Policy 3.7.

22 The second Housing Element policy petitioners cite is Policy 3.8, which

23 provides that "Tillamook County will modify its zoning ordinance to increase

24 possibilities for construction [of] multi-family housing in medium density

25 urban residential zones." However, respondents argue, and we agree, that

26 petitioners have not established that the Nesk CH zone is applied to any

Page 20

I "medium density urban residential zone," or that any such urban residential

2 zone exists within the rural community ofNesko\\in.

3 The fifth assignment of error is denied.

4 SIXTH ASSIGNMEl'I'T OF ERROR

5 Petitioners contend that adoption of the Nesk CH zone violates two

6 county code provisions: Land Use Ordinance (LUO) 2.020(1) and LUO

7 10.050.

8 LUO 2.020(1) provides that zone boundaries shall be shown on maps

9 entitled "Zoning Map of Tillamook County, Oregon." Petitioners argue that

10 the county's decision directs that the Nesk CH zone maps be attached to the

11 NCP, but fails to direct that the official county zoning map be amended to

12 depict the new Nesk CH zone boundaries.

13 Respondents argue that following the county's decision the county has

14 revised the official zoning map as required by LUO 2.020(1), that the amended

15 copy of the official zoning map is available in the county's offices, and that the

16 new overlay zone luis been added to the county GIS system. Respondents

17 argue, and we agree, that petitioners have not established that the county has

18 not complied with LUO 2.020(1). LUO 2.020(1) does not require, as

19 petitioners appear to assume, that the ordinance adopting a zone change

20 specifically direct that the official zoning map be amended. LUO 2.020(1) is

21 more properly understood as a direction to county staff to amend the official

22 zoning map to reflect an adopted zone change, which the county has apparently

23 done.

24 The second code provision is LUO 10.050, which provides that the

25 county board of commissioners shall set all fees, by adoption of an order. One

26 of the new Nesk CH zone standards allows planning staff to determine whether

Page 21

1 a licensed or certified professional must be retained, at the applicant's expense,

2 in order to conduct additional review of a coastal hazard area permit

3 application. Petitioners argue that the requirement to pay for a consultant's

4 review constitutes a "fee" that under LUO 10.050 may be assessed only if the

5 county board authorizes the fee by order. Because the Nesk CH zone was

6 adopted without such an order, petitioners argue, the provision allowing staff to

7 require the applicant to pay the consultant's fee violates LUO 10.050.

8 Respondents argue that LUO 10.050 does not require that a fee

9 authorized in an ordinance be accompanied by an order setting the fee.

I 0 According to respondents, no fee or application expense can become effective

11 or be assessed unless and until the board of commissioners adopts an order

12 amending the county's fee schedule. We are not sure we understand

13 respondents' position on how a consultant's fee will be determined or assessed,

14 but we generally agree with respondents that petitioners have not demonstrated

15 that LUO 10.050 requires that an order setting a "fee" that the Nesk CH zone

16 authorizes must accompany or be adopted at the same time as the ordinance

17 adopting the Nesk CH zone, or that LUO 10.050 prohibits the county from

18 adopting regulations that will require payment of a fee, the amount to be

19 determined later by separate order.

20 The sixth assignment of error is denied.

21 CONCLUSION

22 For the reasons set out in the second assignment of error, the county's

23 decision is remanded.

Page 22

Certificate of Mailing

I hereby certifY that I served the foregoing Final Opinion and Order for LUBA No. 2014-106 on April 16. 2015, by mailing to said parties ortheir attorney a true copy thereof contained in a sealed envelope with postage prepaid addressed to said parties or their attorney as follows:

Courtney Johnson The CRAG Law Center 917 SW Oak Street Suite 417 Portland, OR 97205

Darnien R. Hall Ball Jarrik LLP 101 SWMain Street#llOO Portland, OR 97204

Steven E. Shipsey Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301-4096

William Sargent Tillamook County Courthouse PO Box 652 Tillamook, OR 97141

Dated this 16th day of April, 2015.

Kelly Burgess Paralegal ~ Executive Support Specialist

Please Print one time on July 1, 2015

NOTICE OF PUBLIC HEARING

Date of Notice July 1, 2015

Hearing Date: July 22, 2015

Notice is hereby given that a public hearing will be held by the Tillamook County Board of

Commissioners in Meeting Rooms A & B of the Tillamook County Courthouse, 201 Laurel

Avenue, Tillamook, Oregon 97141, on Wednesday, July 22, 2015, at !0:30a.m., for the purpose

of considering the following:

REMAND FROM THE STATE OF OREGON LAND USE BOARD OF APPEALS (LUBA

No. 2014-106) IN THE MATTER OF SEABREEZE ASSOCIATES LIMITED

PARTNERSHIP and FREDEREICK QUIRIN (Petitioners) vs. TILLAMOOK COUNTY

(Respondent) and OREGON DEPARTMENT OF LAND CONSERVATION AND

DEVELOPMENT and VICTOR AFFOLTER (Intervenors-Respondents). THIS LUBA

REMAND WAS IN RESPONSE TO THE APPEAL OF TILLAMOOK COUNTY'S

APPROVAL OF ORDINANCE AMENDMENT REQUEST OA-14-01:

A request to amend the Tillamook County Comprehensive Plan Goal 18, Beaches and Dune

Element, and Section 4, Supplementary Regulations of the Tillamook County Land Use

Ordinance, in accordance with Statewide Planning Goal #18, Beaches and Dunes, to incorporate

the policies contained in the Neskowin Coastal Erosion Adaption Plan tor properties located

within the unincorporated community of Neskowin.

The subject matter of the hearing is the proposed Findings, Conclusions and Order of the Board

of Commissioners (on remand from the Land Use Board of Appeals) which is available at the

Department of Community Development. The remand hearing shall be on the existing record.

However, written testimony concerning the proposed Findings, Conclusions and Order may be

submitted to the Tillamook County Department of Community Development on behalf of the

Board of Commissioners prior to the date of the hearing, and oral testimony on the same will be

taken at the hearing.

Notice of public hearing, a map of the request area, a copy of the LUBA Remand and a general

explanation of the requirements for submission of testimony and the procedures for conduct of

the hearing are being mailed to all affected property owners; and to parties to the decision of the

Board of County Commissioners in OA-14-01 at least 21 days prior to the date of the hearing.

Information on these items is available for review in the office of the Department of Community

Development. Questions concerning these items may be directed to Sarah Absher, Senior

Planner, Department of Community Development, weekdays at (503) 842-3408x3317.

Failure of an issue to be raised in a hearing, in person or by letter, or failure to provide sufficient

specificity to afford the decision-maker an opportunity to respond to the issue precludes appeal

to LUBA on that issue.

If special accommodations are needed for persons with hearing, visual, or manual impairments

who wish to participate in the hearings, please contact 1-800-488-8280 at least 24 hours prior to

the hearings in order that appropriate communications assistance can be arranged.

Sincerely,

Tillamook County Department of Community Development

Sarah Absher, Senior Planner

OREGON SHORES CONSERVATION COAUTION

July 21, 2015

Tillamook County Board of Commissioners c/o Sarah Absher, Senior Planner 1510-B Third Street Tillamook, Orgeon 97141

Re: Neskowin Coastal Erosion Adaption Plan Remand; File No. OA-14-01

Dear Chair Josi and Commissioners,

The Oregon Shores Conservation Coalition supports the adoption of the Neskowin Coastal Erosion Adaptation Plan. Climate change threatens the customary rights of Oregonians to use, play and recreate on the Oregon's public beaches. A sea level rise ofthrce feet will result in narrowing sandy beaches by as much as 600 feet in width. 1 Hardening the shores, using riprap and other means, results in loss of sand on the beaches. There are no anticipatory plans in place for deciding what roads, sewers and water systems not to replace when the sea seeks to claim low-lying areas of development. While mitigating the causes of climate change remains essential, Oregon's land use system needs to concentrate on adaptation and to revise its goals, statutes and processes to preserve and protect its beaches.

Oregon has adopted a framework for climate change adaptation, and the framework specifically acknowledges that adaptation strategies need to be developed at the regional and local level. The

1 See Peterson, C, at Page 11 of the Oregon Shores publication, Adapting to Climate Change on the Oregon coast http://oregonshores.org/pdfs/EducationalPacket.pdf (last visited March 4, 2013 ).

'

July 21, 2015

Tim Josi, Chair Mark Lab hart and Bill Baertlein, members Tillamook County Board of Commissioners 206 Laurel Avenue Tillamook, OR 97141

Dear Commissioners Josi, Labhart and Baertlein,

This is to express my support and that of Oregon Shores Conservation Coalition for the Findings of Fact and Decision in your response to the LUBA remand of Tillamook County OA-14-01. Your findings are consistent with my understanding of Tillamook County's addressing of the Statewide Planning Goal10, including inventory requirements, during and following my tenure as the county's Planning and Community Development Director from 1982 until 2001.

As stated in my previous testimony, I commend you on the remarkable collaborative effort that went into the four-year effort to prepare and adopt the Neskowin Coastal Erosion Adaptation Plan that may serve as a model for addressing increasing coastal erosion and related flooding issues.

Sincerely,

CihCQ.lC-\v Vic Affolter

Cc: Bill Sargent, County Counsel Bryan Pohl, Tillamook County Community Development Director

Enc: Phillip Johnson's emailed authorization to testify on Oregon Shores behalf.

"Phillip Johnson, Oregon Shores/CoastWatch'' <orshores@teleport.com> To V:c Mfolte•

Neskowin Hazards remand hearing

Hi, Vic,

Courtney Johnson tells me that you plan to attend to the hearing on the Neskowin hazards plan remand. Just wanted to say that I hope you will consider yourself as representing Oregon Shores as wen as yourself, and wanted to make sure you knew that we considered you as standing for Oregon Shores in the entire process.

Hope all goes well with you. Any positive news on the hearing front?

Thanks, Phillip Johnson, Oregon Shores