2005-1011-Order No. 2005-072 Recorded 8/25/2005DESCHUTES COUNTY OFFICIAL RECORDS CJ 2005.1011
NANCY BLANKENSHIP, COUNTY CLERK
W COMMISSIONERS' JOURNAL 08/25/2005 03;44;02 PM
EGAL COUNSEL II I I I II I I IIII II III) V I I I IIII III
2005-10111
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize O. Keith Cyrus and * ORDER NO. 2005-072
Marilyn K. Knott to Use the Subject Property as
Allowed When they Acquired the Property
WHEREAS, On November 2, 2004, the voters of the State of Oregon approved Ballot Measure 37
which added provisions to Oregon Revised Statutes (ORS) Chapter 197 to require, under certain circumstances,
payment of just compensation to landowners if a government land use regulation reduces property value. In lieu
of just compensation, Ballot Measure 37 authorizes the governing body of a local government to modify,
remove or not apply the land use regulation, and
WHEREAS, O. Keith Cyrus and Marilyn K. Knott, trustees and beneficiaries of the Cyrus Loving Trust,
made a timely demand for compensation under Measure 37 for a reduction in value to their property at 17155
Hwy 126, Sisters, Oregon due to regulations which took effect after they acquired this property, and
WHEREAS, Section 8 of Measure 37 authorizes the Board, as the governing body responsible for
adoption and enforcement of County regulations, to not apply the identified land use regulation that restricts the
owner's use and reduces the value of the property in lieu of payment of compensation; and
WHEREAS, the Board has received the report and recommendation of the County Administrator as
required by DCC 14.10.090; and
WHEREAS, the Board has considered the Administrator's report and the evidence presented by the
parties at a Board meeting as required by DCC 14.10.090; and
WHEREAS, the Board makes the following findings of facts and conclusions;
On March 9, 2005, O. Keith Cyrus and Marilyn K. Knott, trustees and beneficiaries of the
Cyrus Loving Trust, filed a Measure 37 claim with the Community Development Department.
2. Claimants' property at 17155 Hwy 126, Sisters, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 17155 Hwy 126, Sisters, Oregon that were not already in effect until after May 25, 1991, not
be enforced in lieu of payment of just compensation to Claimants. The Administrator's report is
attached and incorporated by reference into this Order as Exhibit "A."
4. The Board concurs with the Administrator's report that O. Keith Cyrus and Marilyn K. Knott,
trustees and beneficiaries of the Cyrus Loving Trust, are owners of an interest in the subject
property described in Exhibit "B," having acquired an interest in it and continuously owned it
since May 25, 1991.
The Board concurs with the Administrator's report that the County land use regulations, which
were adopted after the Claimants acquired their ownership interest, if applied to the subject
PAGE 1 OF 3 - ORDER No. 2005-072 (08/24/05)
property, would not permit the desired use of the subject property. Such regulations are land use
regulations which are not exempt from Measure 37 claims.
6. The Board concurs with the Administrator's report that an application for a 22 lot subdivision
under current zoning would be denied. Therefore, such an application would be futile and
Deschutes County Code 14.10.040(6) has been met for this claim; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby determines, based on these findings, conclusions, and the Administrator's
report in Exhibit "A," that the claim submitted by 0. Keith Cyrus and Marilyn K. Knott, trustees and
beneficiaries of the Cyrus Loving Trust, is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply zoning and non-exempt land use regulations to the
subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37.
Claimants are hereby authorized to use the subject property as permitted at the time they acquired the property.
Claimants may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time it acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect on May 25, 1991. The Community Development Director is hereby authorized to determine
the effects that any other non-exempt County regulations in effect on this date would have on Claimants'
proposed development that are different than current non-exempt regulations.
Section 3. To the extent that any law, order, deed, agreement or other legally enforceable public or
private requirement provides that the subject property may not be used without a permit, license, or other form
of authorization or consent, this order does not authorize the use of the subject property unless the Claimants
first obtain that permit, license, or other form of authorization or consent.
Section 4. This Order is a waiver of a non-exempt County land use regulation from a property
determined to be claim eligible as defined in DCC 14.10.020(0)
Section 5. A STATE OF OREGON WAIVER MAY BE REQUIRED FOR THE DEVELOPMENT OR
USE OF THE SUBJECT PROPERTY. THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS
SPECIFIED ABOVE. DESCHUTES COUNTY LACKS THE AUTHORITY TO WAIVE ANY STATE
REGULATIONS OR LAWS. STATE LAWS AND REGULATIONS MAY APPLY TO THE USE OF THE
PROPERTY DESCRIBED HEREIN, AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE
SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON.
Section 6. This order does not affect any land use regulations of the State of Oregon. If the use allowed
by Section 2, above, remains prohibited by a State of Oregon land use regulation, the Planning Director shall
send notice of the Board's decision to the Director of the Department of Land Conservation and Development.
The notice shall include a statement that the County will not accept an application for a building permit related
to the newly allowed use on the property until the earlier of the following events: (i) notice by the Department of
Land Conservation and Development that it concurs with the Board's decision, or (ii) a date 180 days from
issuance of the Board's decision where no response is made to the notice by the Department of Land
Conservation and Development.
PAGE 2 of 3 - ORDER No. 2005-072 (08/24/05)
Section 7. This Order shall be recorded in the Deschutes County Deed Records together with portions
from the deed or other instrument in Exhibits A and B sufficient to identify the subject property for recording
purposes.
DATED this,2_4day of August, 2005.
ATTEST:
Recording ec etary
BOARD OF COUNTY OMMISSIONERS
OF DESC TES O TY REGON
TOM DEWOLF, Chair
%DE H ALY, Commissioner
ISR. LUKE, Commissioner
PAGE 3 of 3 - ORDER No. 2005-072 (08/24/05)
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6570 Fax (541) 385-3202 - www.deschutes.org
TO: Board of County Commissioners
From: Michael A. Maier, County Administrator
DATE: August 24, 2005
RE: Measure 37 Claim - O. Keith Cyrus and Marilyn K. Knott
17155 Hwy 126, Sisters, Oregon
Introduction
The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking that the Claimant furnish more evidence to complete or clarify the claim, and
preparing this report and recommendation under DCC 14.10, the Measure 37 ordinance. The County's
claims process recognizes that less precise evidence of value may be sufficient to evaluate claims, since
there are currently no County funds available for payment of compensation. Also, the ordinance provides
further opportunities for affected neighbors to present evidence and testimony at the Board meeting when
these claims are considered.
This report and recommendation is intended to be a summary and evaluation of evidence in the record.
The report may be attached to the Board's Order which decides Measure 37 claims, as a factual basis for
the Order. Any factual changes or additions to this report from testimony or other evidence can be made
part of the Board's Order. Claimant and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, Claimant must
provide evidence that the desired use of the property, which may be allowed by a waiver of County
regulations are feasible, i.e., not prevented by physical, utility or other development limitations of the site.
Report and Recommendation - DCC 14.10.090
This is my report and recommendation on this Measure 37 claim received on March 9, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and the County's official demand form
has been submitted. The property is a 110 acre parcel (see attached). The current zoning is Surface
Mining (SM). The Claimants' desired use is to develop a subdivision of 22 lots, 5 acres each. Claimants
Page 1 of 6 - Exhibit A - Order No. 2005-072
allege a reduction in value of $5,000,000.00 due to the inability to subdivide under current zoning. The
following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Claimants
are represented in this proceeding by Edward P. Fitch, attorney.
Current Owner - Cyrus Loving Trust Beneficiaries
Claimant presented copies of deeds alleging that the subject property has been continuously owned by
family members since 1944. The property was conveyed to the Cyrus Loving Trust on May 25, 1991, a
Revocable Trust that terminated by its terms on December 30, 1995. Beneficiaries and current trustees of
that Trust, O. Keith Cyrus and Marilyn K. Knott have submitted the claim on behalf of the Trust. The Trust,
which seems to continue in some form, and its beneficiaries are the owners of the subject property within
the meaning of Measure 37.
Owner Date of Acquisition - May 25, 1991
The date of acquisition by the present owner is the relevant date for Board consideration of waivers under
section (8) of Measure 37. The compensation section of Measure 37, section (6), uses the acquisition
date of a family member to determine the extent of reduction in value for compensation. Since the County
has no funds budgeted for payment of compensation, waivers that are issued by the County are limited
by section (8) of Measure 37 to County land use regulations that were adopted after the later acquisition
date of the current owner. If a waiver is granted as to County land use regulations which were adopted
after the current owner's acquisition date, no compensation is due, even if the prior family member held
the property for many years. While this may seem inconsistent, the measure was, evidently, written to
encourage waivers of local and state land use regulations.
The Claimants, as Trust beneficiaries, acquired a contingent interest in the subject property on May 25,
1991, when the Cyrus Loving Trust was created.
Restrictive Regulation -SM zoning.
Under the terms of the ordinance, the Claimant must identify County land use regulations that prevent the
Claimant from using the property in a way that he or she otherwise could have used the property at the
Page 2 of 6 - Exhibit A - Order No. 2005-072
time the property was acquired. The Claimant must also show that these identified regulations cause a
reduction of property value.
The Claimants have incorrectly identified EFU zoning as the land use regulation restricting the desired
use of 22 lot subdivision. This actual zoning is a County land use regulation, which is subject to Measure
37 claims. However, the restrictive zoning identified by the Claimant is not the actual zoning on the
property. The Surface Mining Zone (SM) is the actual zoning on the property, and was applied to the
property at the request of the previous owner. (See: County File no. ZC-80-24). Public safety regulations
or other regulations exempt under subsection (3) E of the Measure cannot be waived.
Enforcement of County Regulation - DCC 14.10.040(6)
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them. There is no evidence that any of these Claimants have applied for a land division of the property
resulting in the current zoning being enforced on the subject property. Claimants have alleged that
submitting an application for such a land division under current zoning would be futile. This Report
confirms that such an application for the desired subdivision use of the scale submitted with the claim
would violate the current zoning and be denied. Therefore, the intent of DCC 14.10.040(G) has been met
for this claim.
Reduction in Value - $5,000,000.00 alleged on Claim Form
The ordinance requires that the Claimants provide evidence of the amount of the claim in alleged
reduction in the fair market value of the property resulting from the enforcement of the County's land use
regulation.
• Claimants have submitted no evidence of the reduction in value of this property by the application
of the current SM zoning.
• Claimant has submitted no evidence that domestic water is available.
• Claimants have submitted no evidence that septic approval is feasible in the area.
• Claimants have submitted no evidence about the feasibility of access from public roads and for
the desired use.
• Claimants have not submitted an appraisal or other evidence of a reduction in value.
Page 3 of 6 - Exhibit A - Order No. 2005-072
• Assuming Claimant could obtain a subdivision of the property, but not under current SM zoning
restrictions, the value of Claimant's property for Measure 37 purposes would be substantially
reduced.
Neighbor Opposition - William Boyer
The following reasons are given for the County to deny this claim:
1. There is inadequate evidence to prove the claim because:
a. A copy of the Trust was submitted after the opposition letter was received. "Other
essential documents" are not identified by Mr. Boyer.
b. Only two of the successor trustees have signed the claim. At page 10-2, Section 5 of
Article 10 of the Trust states that the Family Trust shall terminate at the death of the last trustmaker.
"Successor trustee" in Article Fifteen seems to refer to co-trustee successors if the
trustmaker/trustees become disabled or one passes away. The two claim signators seem to be two of
four beneficiaries entitled to 50% of distribution of the Trust assets, including the subject property.
2. Any waiver of land use regulations must date from when the present owners' interest began.
Claimants O. Keith Cyrus and Marilyn K. Knott, trust beneficiaries, became the owners of a contingent
interest in the property owned by the Trust at the time the Trust was created.
3. The claim incorrectly indicates that current farm use regulations restrict the desired use of a
22 lot subdivision. However, the current Surface Mining zoning also restricts the use.
4. The actual density of development, including the public health, traffic safety, septic and water
impacts will be determined after a development application is submitted and reviewed.
5. Precise valuation is not provided for this claim. However, since additional dwelling units or
other development may be allowed with a waiver of non-exempt land use regulations, some reduction in
value is demonstrated for Measure 37 claim purposes.
6. There is no feasibility evidence presented for this claim.
7. An application would be futile when the County concurs here that current zoning would not
allow the desired use or additional development.
8. See 5 above.
9. The County has not determined that Measure 37 waivers are unconstitutional.
10. This alleges violations of state land use laws that are beyond the County's authority to apply.
11. See 3 and 5 above.
Page 4 of 6 - Exhibit A - Order No. 2005-072
Additional Opposition - Paul Lipscomb
The principal concern is the potential groundwater contamination due to the installation of
numerous private septic systems. While not an unreasonable concern, this issue would be addressed as
part of a development application, where compliance with State and County environmental health
regulations would need to be demonstrated.
Effect of County Waiver - Measure 37 clearly allows the County to waive its non exempt land use
regulations only back to the date the current owners, not family members, acquired the property:
"(8) Notwithstanding any other state statute or the availability of funds under
subsection (10) of this act, in lieu of payment of just compensation under this act,
the governing body responsible for enacting the land use regulation may modify,
remove, or not to apply the land use regulation or land use regulations to allow
the property owner to use the property for a use permitted at the time the owner
acquired the Property." (emphasis added)
11(c) "Owner" is the present owner of the property, or any interest therein. "
In this case, the present owner has continuously owned an interest in the property since December 30,
1991. This follows the effective date of Title 18, the County zoning ordinance. The zoning on the present
owner's date of acquisition seems to have been Surface Mining.
A Claimant who receives a waiver must use the current process to seek the needed development permits
based on the zoning in place at the time the current owners acquired the property. Except in a rare case,
the current procedural requirements for handling permits are not regulations that reduce value. Therefore,
the County's procedural regulations are not waived.
State Claim
Department of Land Conservation and Development Draft Staff Report on this claim was issued
on August 12, 2005. It finds that The Cyrus Loving Trust is an owner. However, the State had not
received a copy of the Trust. Absent evidence to substantiate the ownership status, including when the
present interest was acquired, the staff report recommends denial of the claim.
Page 5 of 6 - Exhibit A - Order No. 2005-072
Conclusion and Recommendation
The present owners of the property have submitted a claim pursuant to Measure 37 which demonstrates
eligibility for its use of the subject property based on nonexempt land use regulations in effect on May 25,
1991, the date they acquired an interest in the property. There seems to have been Surface Mining
zoning of the subject property at the time. Therefore, the desired use of a 22 lot subdivision does not
violate regulations exempt from Measure 37, such as public safety regulations, seems to be a prohibited
use under the regulations in effect at the time of acquisition.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving the non-exempt County land use regulations which were not in effect until after
May 25, 1991 to allow the present owners to use the subject property in a manner permitted at the time
they acquired the property. In essence, the County would not apply any land use regulations to the
Claimants' property which were not in effect when the Claimants acquired the property unless they are
exempt from a Measure 37 waiver under subsection (3)E of the Measure. This waiver is not a
development permit. Claimants must apply for development of any use that the regulations in effect in
1991 would allow.
Page 6 of 6 - Exhibit A - Order No. 2005-072
EXHIBIT B
The East Half of the Northeast quarter and
the Northeast quarter of th~~Sau eazt- i5
quarter of ~,eCtion Twelve (12), Township nship 15
the Willarmtte
South, Range Ten (10), East
me r id iaa
Order No. 2005-072; Cyrus