2007-593-Order No. 2007-112 Recorded 6/8/2007DESCHUTES COUNTY OFFICIAL RECORDS CY 1001'593
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL
11111111 a nil 06/08/1007 04;24;05 PM
2007-593
Do not remove this page from original document.
Deschutes County Clerk
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{
If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
previously recorded in Book
or as Fee Number
and Page
REVIE UNSEL
GAL C
DESCHUTES COUNTY OFFICIAL RECORDS
NANCY BLANKENSHIP, COUNTY CLERK
1111111111111111111111111111111111111111111111111
NO FEE
06/07/2007 03:58:41 PM
D-M37 Cnt=3 Stn=25 JS
This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Elmer Pond to Use the
Subject Property as Allowed When He Acquired
the Property
* ORDER NO. 2007-112
*
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, Elmer Pond made a timely demand for compensation under Measure 37 for a reduction in
value to his property at Map 14-10, tax lot 1700, Sisters, Oregon due to regulations which took effect after he
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 December 1, 2006, Elmer Pond filed a Measure 37 claim with the Community Development
Department.
2. The property is located north of Camp Polk Rd. along Wilt Road, Sisters, Oregon and is within
Deschutes County.
The County Administrator has recommended that the regulations for the subject property that
were not already in effect until after 1986, 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 Elmer Pond is the present owner of the
subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since 1986. The County finds and concludes as set forth below.
The Board concurs with the Administrator's report that the current zoning regulations, if
applied to the subject property, would not permit a subdivision of the subject property in the
2007.32270
PAGE 1 of 3- ORDER No. 2007-112 (06/04/07)
desired location. 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 subdivision of the
subject property would be denied if the current regulations were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimants' property would be
futile.
The Board concurs with the Administrator's report that there is no evidence which demonstrates
that the current procedural regulations for a land use permit have reduced the value of the
subject property.
8. The Board concurs with the Administrator's report that subdivision of the property may be
feasible. However, these matters can and would be evaluated in connection with a permit
application. Despite the lack of a precise amount of reduction in value, the loss of the ability to
subdivide the subject property would be a substantial amount of reduction in fair market value if
the regulations at the time Claimant acquired the property allowed such a use; 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 is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply nonexempt County land use regulations, to the subject
property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimant
may apply for a use of the subject property consistent with the substantive land use regulations in effect at the
time he first acquired the property. That land use shall be permitted if the subject property fully complies with
all substantive land use regulations in effect on October 3, 1986 unless a reviewing court should determine that
Claimant, as a shareholder of the Camp Polk Ranch, Inc, had an interest in the property at the time such
corporation was in title. In which event Claimant's acquisition date would be September 11, 1978, the earliest
date on which he was a shareholder of the corporation and the corporation was in title. The Community
Development Director is hereby authorized to determine the effects that any exempt land use regulations, as
listed in ORS 197.352(3)(A)-(D), would have on Claimant's proposed use as of the acquisition date. As used in
this section, "land use regulations" refer to those listed in ORS 197.352(l l) (B). The Board does not waive
current procedural regulations. Procedural regulations are those which set forth the system, method, or way of
processing land use applications, such as the requirement to submit a certain form. Substantive land use
regulations which are waived are those which regulate the actual use of the land, including those listed in ORS
197.352(l 1)(B), and including regulations such as minimum lot sizes, density restrictions, setbacks not
protecting public safety, and height limits. The Board does not waive exempt regulations which include those
described in ORS 197.352(3), but the provisions of ORS 197.352(3)(E) is subject to this Board's order as to
dates of acquisition for Elmer Pond.
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 Claimant first
obtains 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. ALTHOUGH THE COUNTY WILL ACCEPT AND PROCESS
PAGE 2 of 3- ORDER No. 2007-112 (06/04/07)
SUBSEQUENT LAND USE APPLICATIONS ASSOCIATED WITH THE SUBJECT PROPERTY,
APPROVAL MAY NOT BE GRANTED WITHOUT A VALID WAIVER FROM THE STATE PERTAINING
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
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 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 day o , 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
bwkt'~ fabt~
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-112 (06/04/07)
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: David Kanner, County Administrator
RE: Measure 37 Claim - Elmer Pond (Claimant)
Map 14-10, 1700, Sisters, OR
Introduction
DATE: June 4, 2007
The County processed the initial Measure 37 claims using its brief claim form, evaluating the submission,
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 is 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 December 1, 2006, when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official
demand form. The property consists of one lot with approximately 156 acres in one tax lot. The current
zoning is EFU-SC. The Claimant's desired use is to subdivide the property, currently restricted by County
land use regulations. Claimant alleges a reduction in value of approximately $600,000 - $3,000,000 due
Page 1 of 7 - Exhibit A - Order No. 2007-012
to the inability to subdivide as desired. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim.
Current Owner - Elmer Pond is one of the owners of the property comprising this claim: Tax Account 14-
10 Tax Lot 1700, which is located along Wilt Road just east of Camp Polk Road in Sisters. Claimant
submitted an affidavit in which he describes the ownership history of the property. However, some of the
early history is beyond his personal knowledge and accompanying documentation is sparse. According to
Claimant, his mother, Betty Camomile, originally purchased the property under an unrecorded land sale
contract in 1953 (no copy furnished). This contract was apparently fulfilled, as there is a deed to Ms.
Camomile, dated 1955. She transferred the property to the Camp Polk Ranch, Inc. on September 11,
1978, recroded at Vol 291, Page 276. Claimant has furnished copies of stock certificates which indicate
that he was a shareholder of the corporation. The earliest of such stock certificates is dated September
11, 1978. The Corporation Division of the the Oregon Secretary of State lists Camp Polk Ranch, Inc. as
an inactive corporation. The website lists Betty Camomile as President. She passed away on December
18, 1992. According to Claimant the corporation dissolved in 1986 and in anticipation thereof, deeded
undivided interests to the various shareholders, including Claimant. Claimant submitted a deed identifying
his wife and him as grantees each of 6% interests in the property. A copy of a deed, dated October 3,
1986 was submitted. County records show the title is currently held by the Betty Camomile Family Trust
and Claimant is listed among several owners.
Owner Date of Acquisition - October 3, 1986
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 first date for which there is documentation
showing Elmer Pond obtained an interest in the property is October 3, 1986. This is due to the fact that as
Page 2 of 7 - Exhibit A - Order No. 2007-012
a shareholder of a corporation, Claimant held an interest in the corporation, not in corporate assets. If a
reviewing court should determine, based upon evidence submitted to the Board, that Claimant had an
interest in the real property, as distinguished from his interest in the corpoation per se, and dating to when
he acquired shares in the corporation, as owner of the property, then his interest in the property would
have first been established on the earliest date when he became a shareholder and the corporation
owned the property.
Restrictive Regulation - Zoning Regulations.
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 claimant otherwise could have used the property at the
time the property was acquired, and thus reduce the value of the claimant's property. The Claimant has
not identified specific provisions of the county's ordinance but has alleged that current regulations have
reduced the value of his property by prohibiting his ability to divide the property into smaller lots. At the
time Betty Camomile acquired the property there were no land use regulations. In 1978 she conveyed the
property to the corporation and thereafter in 1986 the corporation conveyed the property to Claimant, the
current owner. Measure 37 defines Family Member as including typical family relations, i.e., wife,
husband, son, daughter, mother, father, etc., and includes a legal entity owned by any one or combination
of these family members. According to Claimant, the corporation was formed by Betty Camomile, which
conveyed to it the subject property. Shareholders apparently included the mother, son, and his wife and
perhaps other family members. This would indicate that such corporation was a family member even
though an intervening owner of the property as it passed from Betty Camomile to Claimant.
Assuming a valid claim has been submitted, then the County may in lieu of paying compensation indicate
that it elects not to enforce county regulations adopted after the current owners's acquisition date. As
mentioned previously, this would depend on whether Claimant acquired an interest in the property at the
time he was a shareholder in the Camp Polk Ranch, Inc. and while this corporation was in title. In 1978
the property would have been subject to the requirements of the Comprehensive Plan, the subdivision
ordinance (PL-2) and the zoning ordinance (PL-5) which would have limited development to 5-acre
parcels.
The provisions of PL-5, applicable to the subject property also contained a provision on interpretation of
the ordinance, which reads:
Page 3 of 7 - Exhibit A - Order No. 2007-012
"Section 2.060 Interpretation. If the conditions imposed by a provision of this ordinance are less restrictive
than comparable conditions imposed by another provision of this ordinance or of any other County or
State regulation, the provision which is more restrictive shall govern." This provision has been interpreted
by the Deschutes County Circuit Court in Case No.05CV-0546ST, as specifically incorporating any other
applicable more restrictive state or county regulations. Thus, the County must consider any more
restrictive state regulations. The 1973 version of ORS 215.213 generally made a distinction between
farm-related dwellings and nonfarm dwellings, and set approval criteria for each type of dwelling. County
code did not make this distinction, nor did it apply the statutory approval criteria.' As this provision would
have first applied under PL-5 in 1973, it would have been in place at the time Claimants acquired their
pieces. However, if Claimants would have applied for a rural subdivision of their property in 1977, then
under according to the Circuit Court's interpretation fo Section 2.060 in addition to the lot size and
configuration limitations, the County would have also applied State law and the standards associated with
farm versus nonfarm dwellings. The 1973 version of ORS 215.263 deals with land divisions in EFU zones
and requires county review of all land divisions creating parcels less than 10 acres in size.2 Under PL-2
(1970) the county reviewed all such subdivisions, but not partitions. It was not until the County adopted
PL-7 (1/5/77) that the county officially asserted review authority over all partitions. Additionally, ORS
215.263(3) required the county to make findings on land divisions in EFU zones against the legislative
t 215.213(1)(e); farm related dwellings: "The dwellings and other buildings customarily provided in conjunction with farm use,
referred to in paragraph (a) of subsection (2) of ORS 215.203." ORS 215.213(2)(a) allowed the county governing body to premit the
establishment of "comercial activies that are in conjunction with farm use."
215.213(3); nonfarm dwellings: "Single-family residential dwellings, not provided in conjunction with farm use, may be established,
subject to the approval of governing body of the county, in any area zoned under ORS 215.010 to 215.190 and 215.402 to 215.422
for farm use upon a finding that each such proposed dwelling:
(a) Is compatible with farm uses described in subsection (2) of ORS 215.203 and is consistent with the intent and
purposes set forth in ORS 215.243; and,
(b) Does not interfere seriously with accepted farming practices as defined in paragraph (c) of subsection (2) of ORS
215.203 on adjacent lands devoted to farm use; and
(c) Does not materially alter the stability of the overall land use pattern of the area; and
(d) Is situated on generally unsuitable land for the production of farm crops and livestock, considering the terrain, adverse
soil or land conditions, drainage and flooding, vegetation, location and size of the tract; and
(e)Complies with such other conditions as the governing body of the county considers necessary." 1973 Or Laws c 503
2 Land divisions:
215.263(2): "Any proposed division of land included within an exclusive farm use zone resulting in the creation of one or more
parcels of land less than 10 acres in size shall be reviewed and approved or disapproved by the governing body of the county within
which such land is situated."
215.263(3): "If the governing body of a county initiates review as provided in subsection (1) or (2) of this section, it shall not approve
any proposed division of land unless it finds that the proposed division of land is in conformity with the legislative intent set forth in
Section(1) of this Chapter.
Page 4 of 7 - Exhibit A - Order No. 2007-012
intent set forth in ORS 215.243(2) and Section 1(2) of 1973 Oregon Laws c. 503 (i.e., preserving the
maximum amount of agricultural land in order to protect the agricultural economy ...).3 County code did
not contain this review requirement expressly, but only by the reference contained in DCC 2.060. For
purposes of this claim properties acquired after 1973 are subject to such State regulations, as
incorporated by reference in County Code.
Since then, with the County's adoption fo the EFU-SC zoning, the minimum lots sizes would have been
significantly larger and thus reduced the potential for development.
While the county would need to evaluate any land use application that may be submitted pursuant to
regulations in effect at the time Claimant first acquired an interest in the property, it appears that in theory,
based upon regulations in effect in 1978, that a subdivision could have been permitted at that time.
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them. Claimant has not applied for a subdivision resulting in the current zoning being enforced on the
subject property. Claimant has demonstrated that submitting an application for such a land division would
be futile. This Report confirms that such an application for the desired subdivision would violate the
current requirements and be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this
claim.
Reduction in Value - $600,000 to $3,000,000 alleged on Claim Form
The ordinance requires that the Claimant provides 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.
• Claimant have asserted that a land division would be approved.
• Claimant's property is located along Wilt Road, so access may not be an issue.
• Other public utilities may be available to the property.
• Claimant has not submitted an appraisal, or opinions from real estate professionals in an attempt
to show the diminution in value based upon limitations on land division of the property.
3 Agricultural land use policy
1973 Oregon Laws Chapter 503 §1(2) and the current ORS 215.243(2)reads: "The preservation of a maximum amount of the limited
supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in
large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and
nutritious food for the people of this state and nation."
Page 5 of 7 - Exhibit A - Order No. 2007-012
• Claimant's alleged reduction in value appears to be based upon the assumption that lots created
by subdividing the property are fully marketable and useable by others for development.
Referring to a recent Opinion of the Oregon Attorney General, rights obtained under Measure 37
are personal to the present property owner. Assuming an owner, having obtained the necessary
"waivers" from the County and the State, could subdivide the property, future owners would,
according to the Attorney General, be precluded from using the property in a manner inconsistent
with land use regulations in effect at the time of the transfer. Thus, the amount of reduction in
value asserted by the Claimant may be unreliable, if the resulting lots are unusable by future
owners, based on their having to comply with zoning regulations in place when such future
owners acquire the property. If Claimant could have obtained approval of a subdivision of the
property on the date he first acquired an interest in the property, but not under zoning restrictions
adopted after Claimant's acquisition date, and the resulting lots are fully marketable and useable
by future owners, then the value of Claimant's property for Measure 37 purposes would be
reduced. Consistent with the County's procedural ordinance, Chapter 14.10, this report takes no
position on whether a waiver obtained by a claimant and any resulting development approval are
fully transferable with the property.
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 propertv for a use permitted at the time the owner
acquired the propertv "(emphasis added)
11(c) "Owner" is the present owner of the property, or any interest therein. "
In this case, Elmer Pond has continuously owned an interest in the property since 1986. A claimant who
receives a waiver must use the current process to seek the needed permits based on the zoning in place
at the time the current owner 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 owner of the property has submitted a claim pursuant to Measure 37 which demonstrates
eligibility for his use of the subject property based on nonexempt land use regulations in effect on October
3,1986, the date when Claimant first acquired an interest in the property. There is evidence in the record
that a land division of the subject property would be feasible.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving the nonexempt County land use regulations which were not in effect until after
Page 6 of 7 - Exhibit A - Order No. 2007-012
1986 (unless a reviewing court should decide that as a shareholder of the Camp Polk Ranch, Inc., which
held title from 1978 until 1986, Claimant held an ownership interest in the property), to allow the Claimant
to use the property in a manner permitted at the time he acquired the property. This waiver is not a
development permit. By granting a waiver, the County does not commit itself to approving Claimant's
desired permit.
Cautionary Note on Measure 37
Claimant should understand that a decision by Deschutes County may not enable him to proceed with
future development or construction unless the State of Oregon approves a waiver of applicable State land
use regulations. Claimants who wish to obtain information relative to their "State" claims under Measure
37 are advised to contact the State Department of Land Conservation and Development and the
Department of Administrative Services.
Page 7 of 7 - Exhibit A - Order No. 2007-012
EXHIBIT B
The Northeast Quarter (NE-1/4) of Section Twenty-
Seven (27), Township Fourteen (14) South, Range
(10) East of the Willamette Meridian, Deschutes
County, Oregeon
EXHIBIT B
