2005-1017-Order No. 2005-069 Recorded 8/29/2005COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS Q 2005'1017
71; COMMISSIONERS' JOURNAL 08/29/2005 03;36;18 PM
LEGAL COUNSEL 111111111111111111111111111111111
200 -1017
1
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Central Electric * ORDER NO. 2005-069
Cooperative, Inc. 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, Central Electric Cooperative, Inc. made a timely demand for compensation under Measure
37 for a reduction in value to their property along Jordan Road, 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;
1. On March 15, 2005, Central Electric Cooperative, Inc. filed a Measure 37 claim with the
Community Development Department.
2. Claimants' property along Jordan Road, Sisters, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 18200 Jordan Road, Sisters, Oregon that were not already in effect until after 1962, 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 Central Electric Cooperative, Inc. is the
current owner of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since 1962.
The Board concurs with the Administrator's report that the current County regulation, SM
zoning, and the conditional use permit process, if applied to the subject property, would not
permit the desired above ground upgrade of the Jordan Road electricity transmission line on this
PAGE 1 OF 3 - ORDER No. 2005-069 (08/24/05)
subject property. The current 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 modification and
improvement of this portion of the Jordan Road electricity line on the subject property has been
denied when the current zoning was applied.
7. The regulations, SM zoning and the conditional use permit process were not in effect at the time
Claimants acquired the property
8. The Board concurs with the Administrator's report that Claimants have demonstrated that the
inability to improve their electricity line above ground is a substantial amount of reduction in
the fair market value of their easements; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESC1 UTES 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 Stills claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply zoning and nonexempt 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 they acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect in 1962, if any. The Community Development Director is hereby authorized to determine
the effects that any other non-exempt regulations in effect on this date would have on Claimants' proposed
development differently 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. 2005-069 (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 U! ~ day of August, 2005.
BOARD OF COUNTY COMMIS
OF DESCHUTES COUNTY. OR]
TOM
ATTEST: NfiCAE ALY, C m
Recording Secretary hHqN-IS R. LUKE, Commissi
PAGE 3 of 3 - ORDER No. 2005-069 (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 - Central Electric Cooperative, Inc.
18200 Jordan Road, 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 15, 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 4.65 mile portion of Central Electric Cooperative, Inc.'s Jordan
Road line utility easements (see attached). The current zoning is Exclusive Farm Use, Sisters/Cloverdale
Page 1 of 5 - Exhibit A - Order No. 2005-069
(EFU-SC), Surface Mining (SM) and Multiple Use Agriculture (MUA-10). The Claimant's desired use is to
upgrade an outdated 43 year old power line. Claimant alleges a reduction in value of $7,905,000.00 due
to the inability to complete an above ground upgrade within the utility easement as desired. The following
is an analysis of the evidence in the record on the elements of this Measure 37 claim. Claimant is
represented in this proceeding by Martin Hansen, attorney.
Current Owner- Central Electric Cooperative, Inc.
Claimant presented copies of power line and right-of-way easements accepted by the County as showing
ownership of the 4.65 miles of utility easements in Nonconforming Use Decision A-03-6 (NCU-03-1)
(2003) and (2005). The County has recognized Claimant's ownership of these utility and right-of-way
easements since its construction in 1962.
Owner Date of Acquisition - 1962
The date of acquisition by the current 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 current electric transmission line has been recognized by the County to have been in place in 1962
based on easements at that time.
Restrictive Regulation - SM zoning, CUP Process.
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 5 - Exhibit A - Order No. 2005-069
time the property was acquired. The Claimant must also show that these identified regulations cause a
loss of property value.
The Claimant has identified the SM zoning and the conditional use permit process as the land use
regulations restricting the desired use of an above ground upgrade of their electricity transmission line.
These regulations are County land use regulations, which are subject to Measure 37 claims.
Enforcement of County Regulation - DCC 18.120.010(E)
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them.
Claimant applied for and has ultimately been denied a modification and improvement of the Jordan Road
transmission line on this property resulting in the current zoning being enforced on the subject property.
The Claimant's proposed use of the property was finally denied in Decision A-03-6 (NCU-03-1) (2005).
Therefore, the intent of DCC 18.120.010(E) has been met for this claim.
Reduction in Value - $7,905,000.00 alleged on Claim Form
The ordinance requires that the Claimant provide evidence of the amount of the claim in alleged reduction
in the value of the property resulting from the enforcement of the County's land use regulation. Claimant
has submitted affidavits estimating that excavation and underground installation of this line would cost up
to $2,000,000.00 per mile. That amount, less the $300,000.00 per mile above ground cost is the basis for
a net $1,700,000.00 per mile, yielding a claim amount of $7,905,000.00.
Neighbor Opponent - Cyrus
Several significant issues have been raised in material presented by opponent Cyrus.
1. M37 Claims Are For Private Not Public Land
Section 1 of M37 states that compensation or regulation waivers in lieu of compensation are due owners
of private land. A number of points are raised to allege that Claimant CEC is a public entity whose
assessment interests in land are public land that does not qualify for an M37 claim:
a. LUBA stated that the CEC is a public entity in Cyrus v. Deschutes County, 46
OrLUBA 793 (2004).
Page 3 of 5 - Exhibit A - Order No. 2005-069
b. CEC has a public mandate to provide electricity. It holds easements for the
"public use" purpose. CEC asserted that public status to the Court of Appeals in Cyrus v. Deschutes
County, 194 Or.App. 716 (2004).
C. CEC is a public utility for M37 purposes that has the right to condemn property
under ORS 772.205, et seq. Therefore, the property held for this public use is not "private property"
eligible for an M37 claim. CEC has demonstrated that it is a cooperative, private company.
There is no indication in M37 that land owned by a private company with quasi-public functions is not
private property for M37 purposes.
2. Owners of the Underlying Property Have not Consented.
The County Code at DCC 14.10.040D, K, does state that all owners of property join in the claim.
However, the purpose of the code provision is to assure that any disagreement among owners of different
interests is brought into the record. That has occurred here.
3. The Electric Line Addition is Not Feasible.
Opponents allege that the ten-foot 1972 easement on the Cyrus property is too narrow to construct and
maintain new poles and side arms. Until and unless CEC condemns additional land, the proposed
addition is not feasible. Also, the larger transmission line is alleged to be beyond the scope of the 1962
easement. These are the extent of ownership issues among owners.
4. The Rate of Acquisition of Claimant's Interest is 2001, not 1962:
Allegedly 75% of the easements presented by Claimant to prove its property interest are dated 2001.
Therefore, any waiver of land use regulations must use the date that the property for the entire line was
acquired. The County has accepted CEC's ownership of easements to have built the existing line in
1962.
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
Page 4 of 5 - Exhibit A - Order No. 2005-069
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 owners have continuously owned an interest in the property since 1962. This
predates the November 15, 1972 effective date of PL-5, the County zoning ordinance.
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.
Conclusion and Recommendation
The present owners of the property have submitted a claim pursuant to Measure 37 which demonstrates
eligibility for their use of the subject property based on nonexempt land use regulations in effect in 1962,
the date they acquired an interest in the property. There seems to have been no zoning of the subject
property at the time. Therefore, the desired use of an above ground upgrade to Claimant's electricity
transmission line that does not violate regulations exempt from Measure 37, such as public safety
regulations adopted by the County, seems to be an eligible use.
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
1962, to allow the owner 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 Claimant's property
which were not in effect when the Claimant 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. Claimant must
apply for any necessary development permits of any use that the regulations in effect in 1962 would
allow.
Page 5 of 5 - Exhibit A - Order No. 2005-069
EXHIBIT B
15-10-13-100 /
A strip of land forty (40) feet in width, with twenty (20) feet on either side of centerline, located In the southern portion of a parcel
of tend situated in the'S 112 of the N 112 of Section 13, T. 15 S., R.10 E, W.M. Said parcel Is more particularly described by
that certain Bargain and Sale Deed Statutory Form, recorded on July 13, 1981, in Volume 344 of Deeds, Page 324, of Deschutes
County•Reoords. Tax Map No.1S10-13-100.
15-10-13-702
Also, a strip of land forty (40) feet In width, with twenty (26) feet on either side of centerline, located to the northern portion of e
parcel of land situated in the N 112 of the S 12 of Section 13, T. 15 S., R.10 E, W.M. Said parcel Is more particularly dearribed
by that certain Statutory Warranty Fulfillment Deed, recorded on October 18, 2000, in Volume 2D00'of Deeds, Page 42122, of
Deschutes County Records. Tax Map No. 115-W13-702.
The centerline traverses of the aforementioned strips of land are as more particularly described to Exhibit 'A,' Legal Description
and Survey, attached hereto and by this reference made a part hereof.
15-10-13-400 (See Mike Berry's Notes: 2000/23957 contains an ambiguity in the
description. Tax lot 400 is in the NE 1/4 SE 1/4, whereas the deed states it is in the
NE 1/4 NE 1/4, but then it goes on to correctly describe the tax lot 400 in the NE 1/4
SE 1/4).
A strip of land forty (40) feet in width, with twenty (20) feet on either side of centerline, located In the northern portion of a parcel
of land situated in the NE 114 of the SE 1/4 of Section 13, T. 15 S., R. 10 1:, E. or the W.M. Said parcel of tend is more
specifically described by that certain Bargain and Sale Deed, recorded on June 16, 2000, in Volume 2000 of Deeds, Page 231357,
in Deschutes County Records. The centerline traverse of said strip of land being the centerline of Grantee's existing transmission
power fine as now constructed.
this Power Line Easement hereby quitoisims and releases all interests arising out all that certain Right of Way Easement granted
to Central Electric Cooperative, Inc., by Eimer D_ and Dorothy M. Gridley on March E, 1982, and recorded In Volume 130 of
Deeds, Page 405, of Deschutes County Records, as such 1962 Easement pertains to the aforementioned parse: of land.
15-10-12-700
Missing
Order No. 2005-069; Central Oregon Cooperative