2007-1409-Order No. 2007-109 Recorded 8/1/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS ICJ 200~~1409
COMMISSIONERS' JOURNAL
11111111110111111011111111 1111 oil 08/01/2007 03;45;19 PM
2007-1409
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Deschutes County Clerk
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statement, in accordance with ORS 205.244:
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REV D
a4
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize O. Keith Cyrus * ORDER NO. 2007-109
andConida E. Cyrus to Use the Subject Properties
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 Conida E. Cyrus have made a timely demand for compensation under
Measure 37 for a reduction in value to their properties near Sisters, Oregon, identified on the attached Exhibit
"B" 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 December 1, 2006 O. Keith Cyrus and Conida E. Cyrus filed a Measure 37 claim with the
Community Development Department.
2. Claimants' properties near Sisters, Oregon are within Deschutes County.
The County Administrator has recommended that the zoning regulations for the subject
properties near Sisters, Oregon that were not already in effect until after the dates indicated in
Exhibit "B" 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 Conida E. Cyrus are
the current owners of the subject property described in Exhibit "B," having acquired them and
continuously owned it since the dates indicated in Exhibit "B."
5. The Board concurs with the Administrator's report that the current regulations, including EFU,
MUA-10, and SMIA zoning, if applied to the subject property, would not permit use of these
PAGE 1 of 3- ORDER No. 2007-109 (07/30/07)
properties in a manner which would have been allowed at the time they were acquired.. The
current regulations are not exempt from Measure 37 claims.
The Board concurs with the Administrator's report that an application for a subdivision
consisting of 5-acre lots on the subject properties would be denied if the current zoning were
applied. Therefore, such an application to determine enforcement of the current zoning to the
Claimants' properties would be futile.
7. The Board concurs with the Administrator's Report that there is no evidence which
demonstrates that the current procedural regulations for land division, such as the application
and review process have reduced the value of the subject property.
8. The Board concurs with the Administrator's report that Claimants have not demonstrated that
domestic water, septic, and road access for a multiple unit residential development on the
subject properties is feasible. The Deschutes County Code authorizes the Board to consider and
determine eligibility under Measure 37 without a demonstration of feasibility of a use that was
permitted at the time the property was acquired. Despite the lack of a precise amount of
reduction in value, the loss of the ability to add additional buildable lots to the subject properties
would be a substantial amount of reduction in fair market value if the regulations at the time
Claimants acquired the property allowed that development.
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby determines, based on these findings and conclusions and the
Administrator's report in Exhibit "A," that the Cyrus' claim is eligible under DCC 14.10.100.
Section 2. In lieu of payment of just compensation under Ballot Measure 37, the Board hereby elects to
not apply nonexempt County land use regulations, to the subject properties described in Exhibit "B" which were
not in effect until after the dates of acquisition specified. Claimants may apply for a use of the subject property
consistent with the substantive land use regulations in effect at the time they first acquired each property. That
land use shall be permitted if the subject property fully complies with all substantive land use regulations in
effect on the various acquisition dates specified. 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 Claimants' proposed use. As used in this section, "land use regulations" refer to those listed in ORS
197.352(11) (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(11)(B), and including regulations such as minimum lot
sizes, density restrictions, setbacks not protecting public safety, and height limits, so long as such regulations
were not in effect on the particular acquisition date for a particluar parcel. 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 Keith and Conida Cyrus.
Section 3. 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). The County's floodplain regulations are
exempt regulations.
Section 4. 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
PAGE 2 of 3- ORDER No. 2007-109 (07/30/07)
PROPERTY DESCRIBED HEREIN, AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE
SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON.
Section 5. 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.
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, B, and C sufficient to identify the subject property for
recording purposes.
DATED this 25t tay of July, 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY OREGON
MI EL 1V~~ALY, Chai
ATTEST: Dt
alU LULE-,Vice C air
A~ K1~4~
Recording Secretary TA B EY, Co issioner
PAGE 3 of 3- ORDER No. 2007-109 (07/30/07)
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 - O. Keith and Conida Cyrus
17204 Hwy 126, Sisters, Oregon
Introduction
DATE: July 30, 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.
Claimants previously filed a claim on March 9, 2005, which was processed by the County and resulted in
Board Order No. 2005-075. Such Order was challenged in a writ of review proceeding brought by Paul
Lipscomb in the Deschutes County Circuit Court, case number 05CV0546ST. The Circuit Court entered
an order on April 10, 2007 remanding this matter to the Board. By letters dated May 8 and 9, 2007 from
Claimants' counsel the Claimants have requested the Board take no further action with respect to this
earlier claim.
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. Claimants have paid the filing fee and the County's official demand form
Page 1 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
has been submitted. According to the Claimants' submittal the property consists of approximately 815
acres and ten parcels. The current zoning is a mix of Exclusive Farm Use (EFU-SC), MUA-10, FP and
Surface Mining (SM). The properties are also located in Landscape Management (LM) and Surface
Mining Impact Area (SMIA) combining zones. The Claimants' desired use is to develop a
"self-contained development that provides for visitor-oriented accommodations and
developed recreational facilities in a setting with high natural amenities. Said
development may contain, but is not limited to mixed use high and low density multi
and single family residential units, lodging, recreational and commercial uses along
with associated, water rights, sewage treatment facilities, highway accesses and other
improvements as may be necessary to facilitate such a development. Development to
be built without setback, height, or other subdivision building, or zoning overlay
requirements established since date of acquisition, except as owner may deem them
beneficial to the development."
Claimant describes the desired use as a "destination resort" and asserts that he could have established
same at the time the property was first acquired. While the purpose of this proceeding is to determine
whether the Claimants have an eligible claim under Measure 37 and not rule specifically on development
proposals, the destination resort provisions of the County's development code and, indeed under state
law were enacted long after Claimant acquired the property. Measure 37 provides as a remedy for an
eligible claim that the governing body responsible for enacting a land use regulation to not apply the
regulation "to allow the owner to use the property for a use permitted at the time the owner acquired the
property." As State and local law did not allow destination resorts until no earlier than 1987, Claimant
cannot avail of such rights under Measure 37, at least as to properties which were acquired after the
County adopted some of its land use regulations.
Claimants do not furnish any distinction among their various parcels in terms of potential development in
an historical zoning context, but appear to treat all the properties the same.
Claimants allege a reduction in value of $29,500,000 due to the inability to develop under land use
regulations adopted by the County after Claimants' acquired the property. 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 Ross Day, attorney.
Current Owner -
Claimants presented copies of deeds alleging that the subject properties had been acquired at various
times and continuously owned by Claimants since those times. Documentation submitted in support of
such claim may be summarized as follows:
Page 2 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
# Tax Lot Grantor County Vol. & Page Date Zoning @ acquisition
1.15-10-12-00700 Boyd 142-262 2/12/1965* N/A
2. 15-10-12 (13)-00100 Boyd 142-262 2/12/1965 N/A
3. 15-10-12-00500 Gray 108-193 11/28/1984 EFU-20 under PL-15
Unrecorded contract 1/07/1974 A-1 under PL-5 (1972)
4. 15-10-01-00400 Bacon 211-874 7/22/1974 A-1 under PL-5 (1972)
5. 15-11-06-01500 Bacon 314-240 5/15/1972 Comprehensive plan
designation of "Intensive Agriculture (1970) and "Rural Subdivision" under PL-2 (1970)
6. 15-11-06-01600 Bacon 314-240 5/15/1972 Comprehensive plan
designation of "Intensive Agriculture" (1970) and "Rural Subdivision" under PL-2 (1970)
7.15-10-13-00500 Kirk 127-33 1/24/1961 N/A
15-10-13-00500 Cyrus ? ?
8. 15-10-13-00501 Morley 233-593 6/28/1976***** A-1 under PL-5 (1972)
9. 15-10-13-00701 Morley 217-82 5/2/1973 A-1 under PL-5 (1972)
10.15-10-13-00702 Morley 233-593 6/28/1976**** A-1 under PL-5 (1972)
* Claimants have submitted a payment schedule as evidence that the purchase agreement recorded at V
142, page 262 was executed in 1959. The schedule refers to Boyd and Cyrus, but not specific property.
Claimants have identified Parcel #2 as 15-10-12 Lot 100. However, Claimants did not acquire such
parcel until 1995. This parcel was the subject of a separate Measure 37 proceeding wherein the Board
approved Order No.2005-072. Based upon the description of property conveyed in 1965, as indicated in
Claimants' supportive documents, Claimants acquired 15-10-13 Lot 100 and this report will hereafter
discuss this Parcel.
Claimant Conida Cyrus is shown as the vendee on the Contract of Sale governing Parcel #4. There is
nothing in the record to indicate that Claimant Keith Cyrus has an interest in such property. The final
order should reflect that as to this parcel, only Connie Cyrus is entitled to a waiver.
Parcels #8 and 10 were the subject of a contract of sale, which was not submitted with the claim.
However County records at Vol. 233 Page 595 indicate Claimants acquired an interest in these properties
in 1976. Final deeded ownership of the parcels occurred in October 2000.
Page 3 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
Parcel #8 was originally acquired in 1961, reconveyed to the Grantor, Morley, and later in 1976
conveyed a second time to Claimants. The 1976 acquisition date will be treated as Claimants' acquisition
date due to the break in ownership.
In a letter dated July 16, 2007 Claimants' counsel submitted among several documents a table prepared
by Claimants which purportedly reports the acquisition date for each of Claimants' properties. Included on
this table are two parcels described as gravel pits, one is 2-acres and the other is 3-acres. Both are listed
as located in Section 14 (distinct from all other parcels). The acquisition date of the former, described as
Lot 200, is listed as unknown, and the second, which is not described, asserts an acquisition date of
1963. ORS 197.352(5) requires that written demand be submitted within 2 years of the enactment of
Measure 37 (December 2, 2004) or the date a public entity applies its land use regulations as an approval
criteria to an application submitted by the owner. Claimants have not previously submitted a claim
concerning these parcels, nor have Claimants demonstrated that the County has applied County land use
regulations as an approval criteria to a land use application. Accordingly, these parcels will not be further
addressed in this matter.
Owner Date of Acquisition - Various
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 above table identifies the various parcels together with the relevant acquisition dates
Restrictive Regulation -EFU-SC, MUA-10, FP and SM zoning.
In terms of County land use regulatory history the key elements would first be the comprehensive plan,
which was adopted in 1970, a subdivision ordinance (PL-2), which was also adopted in 1970, and a
zoning ordinance (PL-5), which was adopted in 1971. While minimum lots sizes would ordinarily be
Page 4 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
contained in a zoning ordinance, the County's first subdivision ordinance contained minimum lot sizes.
So, there is internal consistency between the comprehensive plan, the subdivision ordinance and,
ultimately, the zoning ordinance with respect to land divisions. This consistency is reflected in the
comprehensive plan map that identified broad plan designations, subdivision standards that were tied to
the comprehensive plan designations, and the zoning ordinance that contained both text and maps,
consistent with the plan designations.
Under the terms of the Measure 37 implementing 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 time the property was acquired. The Claimant must also show that these
identified regulations cause a reduction of property value.
Group A - Parcels # 1, 2 and 7, identified in the table above, were first acquired by Claimants before
County land use regulations were adopted. Since then, the County has adopted regulations which
recognize the historical agricultural nature of the area and the use of these parcels. Thus, since 1970
these properties have been zoned for agricultural uses, first with 5-acre minimum lots sizes for rural
subdivisions and later, to larger minimum lots sizes under later enacted zoning regulations. Under these
later enactments these particular properties were further restricted in terms of development for other than
agricultural uses. All of the regulations referred to on the first page of this report would have been
adopted after Claimants acquired the property in this Group A.
Group B - Parcels # 3, 4, 5, 6, 8, 9, and 10, identified in the table above, were first acquired by
Claimants in 1972, 1973, 1974 and 1976. At the time these pieces were acquired the property was
identified on the County's Comprehensive Plan designation as "intensive agriculture," under PL-2 as
Rural Subdivision and under PL-5 as A-1 exclusive farm use. These designations would have allowed 5-
acre minimum lots with certain minimum lot dimensions, street frontages and setback requirements. PL-5
did not permit development of a Planned Development for rural subdivisions, as it did for urban, suburban
and rural recreational subdivisions. Besides agricultural uses, this zone would have permitted uses
allowed in the R-1 zone, which included single family dwellings. Thus, the requirements generally referred
to above for each lot would apply.
The provisions of PL-5, applicable to parcels in Group B, also contained a provision on interpretation of
the ordinance, which reads:
Page 5 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
"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 criteria
would have first applied under PL-5 in 1973, it would not have been in place at the time Claimants
acquired certain of their pieces. However, if Claimants would have applied for a rural subdivision of their
property in or after 1973, then, according to the Circuit Court's interpretation of Section 2.060 in addition
to the lot size and configuration limitations, the County would have also applied, as part of the County's
regulatory scheme, this 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 is 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 which address the legislative intent set forth in ORS
I 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."
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."
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
ORS 215.243."
Page 6 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
215.243 (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 will be treated as
having been acquired subject to such State regulations, as incorporated by reference in County Code.
While Claimants have asserted that a companion claim has been submitted to the State and is expected
to be approved, the County's adoption by reference of these State law will require the County to
independently apply them to any future development application, at least in so far as the parcels in Group
B are involved.
The Claimants have identified EFU zoning as the County land use regulation restricting the desired use.
EFU zoning has had the effect of restricting the development of 5-acre lots whether or not they qualify for
farm related dwellings. The Surface Mining Zone (SM) is also a county regulation that was adopted
after Claimants acquired the property. Assuming some evidence that a reduction in the value of such
property has occurred by the adoption of such regulation, then it is potentially subject to waiver or non-
enforcement under Measure 37.
That portion of the property now subject to the FP Zoning designation may affect the configuration of a
future subdivision. Certain elements of the FP Zone may be exempt under Measure 37, as they are
related to health and safety and are based on federal (FEMA) designations for at-risk flood areas. The
FP Zone restricts the ability to create new lots within areas that are subject to the 100 year flood
occurrence. 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 these Claimants have applied for a destination resort or any land division
of the property resulting in the current zoning being enforced on the subject property. Claimants have
implied that their submittal of an application for a destination resort on the subject property under current
zoning would be futile. This Report confirms that such an application would violate the current zoning and
3 Agricultural land use policy:
215.243(2): "The preservation of the 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."
Chapter 503 of the 1973 Legislation became effective on January 2, 1974.
Page 7 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
be denied. It is not clear what Claimant means by destination resort, as the only available provisions for
such a use are contained in ORS 197.435 to 197.467 and implementing county regulations. As has been
mentioned previously, an application for a destination resort would not have been permitted for those
properties acquired after 1971, since these properties were zoned for agricultural and rural residential
uses with a 5-acre minimum lot size. A planned development was not an available option. Commercial
uses were not permitted. With respect to properties identified in Group A, which were obtained prior to
1970, there was nothing in County regulations which prohibited such a development.
With respect to properties in Group B, a rural subdivision consisting of 5-acre lots might have been
permitted, assuming necessary utilities and access could be provided. Assuming an application for a
subdivision with 5-acre lots, whether farm-related or nonfarm-related was submitted under current county
land use regulations, it would be denied, based upon EFU zoning. Therefore, the intent of DCC
14.10.040(G) has been met for this claim.
Reduction in Value - $29,500,000. 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. Other than Claimant, Keith Cyrus' written opinion, Claimants have submitted
no evidence of the reduction in value of this property by the application of current zoning.
• Claimants have 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 for the desired use. The County's
implementing ordinance, DCC 14.10 previously required that appraisal evidence submitted in
support of Measure 37 claims take into account the feasibility of the proposed use. This
requirement was repealed by Ordinance 2007-008, adopted by the County on February 1, 2007
and was effective on that date. The feasibility determination would be made in the future as part
of development review of a land use application.
• Claimants have not submitted an appraisal.
• Claimants have submitted an affidavit which includes an opinion of values by the current owner.
This opinion specifies particular values for the various parcels as currently zoned, as developed
with a destination resort, the cost of development and the diminution in value. As mentioned
previously, with the possible exception of Parcels #1, 2, and 7 which were obtained prior to
county land use regulations, a destination resort use was not permitted under County land use
regulations after 1970. There is no market data or other evidence furnished to validate the opinion
of the values given. With respect to the development cost there is nothing to indicate the Claimant
is qualified as an expert to furnish such opinion or that any market study was undertaken to verify
such opinion. In a previous application submitted to the County for this same set of parcels, the
same Claimant asserted the diminution in value was $26,000,000. There is no explanation for this
difference.
• Without an appraisal based on the value of 5-acre lots or other documentation, it is not possible
to substantiate the specific dollar amount the Claimants demand for compensation. Nevertheless
assuming Claimant could obtain a rural residential subdivision of the property with 5-acre lots, but
Page 8 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
not under current EFU and other zoning restrictions, the Administrator determines that it is more
likely than not that there has been some reduction in the fair market value of Claimant's property
for Measure 37 purposes.
Neighbor Opposition - Paul Lipscomb
1. A separate claim was previously submitted (M37-05-29). This claim was approved by the
County (Order #2005-075) and appealed to the Deschutes County Circuit Court (#05CV-0546ST).
Ultimately (February 10, 2007) the Circuit Court entered Judgment remanding the matter to the
County. On Wednesday, May 9, 2007, the Claimants by and through their attorney requested in
writing that the County take no further action on such claim and the County thus treat the matter as
withdrawn. This would leave the subject claim which the same Claimants filed last December.
2. The Claimants cannot establish a destination resort on the property, as it was not
permitted at the times the several parcels were obtained. This has previously been discussed.
3. No particular ordinances are identified. Actually, the Claimants refer to the County's EFU
zoning generally without distinguishing the various county land use regulations which were in place
when some of the parcels were first acquired. Other County regulations which were also adopted
after Claimants' acquisition dates were identified, for example, surface mining impact area.
4. Claimants are not presently entitled to develop their property as a destination resort.
Measure 37 does not permit them to selectively take advantage of new regulations while avoiding
others. This issue is not ripe for decision at this time, but would be relevant upon a future land use
application.
5. Same as #2 above.
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 the various dates
set forth on the table included on page 2 of this report. Except for those parcels obtained in the 1960's
(#1, 2, and 7), the other parcels were acquired after adoption of the certain County land use regulations,
Page 9 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
such as the original comprehensive plan, the subdivision ordinance (PL-2) and the zoning ordinance (PL-
5), but before other ordinances, such as PL-15.
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 issued three final orders on claims over the
same properties listed in this case (with one exception). The final staff reports which form the basis of
such final orders have been entered in the record of this case. With respect to Parcel #2 listed in the
above table, which the Claimants misidentified as Township 15, Range 11, Section 12, the State initially
treated this discrepancy as a new filing separate from the adjacent parcel, Section 12, Lot 700. The
County has recommended that the Board disregard this discrepancy and treat the matter as having been
sufficiently described in the supportive documentation as Section 13, Lot 100. The Administrator is not
aware whether the State has issued a final order with respect to Parcel #2.
Conclusion and Recommendation
The Claimants have submitted a claim pursuant to Measure 37 which demonstrates eligibility for their use
of the subject properties based upon nonexempt land use regulations which were adopted at various
times after the various parcels were adopted. County's EFU-20 zoning has restricted Claimants ability to
subdivide their property into 5-acre parcels (and place either farm or nonfarm dwellings thereon). Also
MUA-10 and Surface Mining zoning would have restricted development to some extent and was adopted
by the County after the acquisition date of several parcels.
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
the acquisition dates of the various parcels by the present owners in order that they might use the
subject properties in a manner permitted at the time such properties were acquired.. In essence, the
County would not apply any land use regulations to the Claimants' properties which were not in effect
when the Claimants acquired each Parcel. This waiver is not a development permit.
Page 10 of 10 - Exhibit A - Order No. 2007-109 (7/30/07)
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Tax Lot
Year Acquired
Vol & Pg
2
1.
15-10-12-00700
1965
142-262
-
2
15
10
13
00100
1965
1
.
-
-
-
42-262
_
3.
15-10-12-00500
1974
Unrecorded
4.
15-10-01-00400
1974
211-874
;
5.
15-11-06-01500
1972
314-240
"
6
15
11
06
01600
1
.
-
-
-
972
314-240
7.
15-10-13-00500
1961
127-33
8.
15-10-13-00501
1976
233-593
9.
15-10-13-00701
1973
217-82
10.15-10-13-00702
1976
233-593
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