2007-1512-Order No. 2007-005 Recorded 9/18/2007DESCHUTES COUNTY OFFICIAL RECORDS ~d 2007~~5~2
NANCY BLANKENSHIP, COUNTY CLERK d Y
COMMISSIONERS' JOURNAL 09/16/2007 09;54;00 AM
IIIIIIII IIIIIIIIIIIIIIIIIIII III
2007-1312
Do not remove this page from original document.
Deschutes County Clerk
Certificate Page
If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS ~0~2'~Ory~C
REVIE
VLGA L COUNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE
00573342200700502660110118 09I11I2001 11;23;05 AM
D-M37 Cntml Stnal BN
This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
I \ An Order Approving a Waiver of Land Use
V Regulations to Authorize Stearns Land Co., LLP * ORDER NO. 2007-005
and Joyce Stearns Barney and Ann Stearns
Ramseyer 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, Stearns Land Co., LLP made a timely demand for compensation under Measure 37 for a
reduction in value to its property at 52595 Huntington Road, LaPine, Oregon due to regulations which took
effect after it 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 July 28, 2006, Stearns Land Co., LLP filed a Measure 37 claim with the Community
Development Department. The claim was amended to include as individual claimants Joyce
Stearns Barney and Ann Stearns Ramseyer, who established the limited partnership and
generally control it. The Board allowed the amended claim in January 2007.
2. The property is located at 52595 Huntington Road in LaPine, Oregon and is within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject property
that were not already in effect until after November 15, 1995 as to the LLP and, assuming a
court would determine that the interest of a member of an LLP is a property interest, May 15,
1982 as to the partners. 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 Stearns Land Co., LLP is the present
owner of the subject property described in Exhibit "B," having acquired an interest in it and
PAGE 1 of 3- ORDER No. 2007-005 (09/12/07)
continuously owned it since November 15, 1995. The County finds and concludes as set forth
below.
5. The Board concurs with the Administrator's report that the current land use regulations, EFU
and FP, if applied to the subject property, would not permit a subdivision to create 5-acre lots.
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 to create
5-acre lots would be denied if the current zoning were applied. Therefore, such an application to
determine enforcement of the current zoning to the Claimant's property 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 divisions and development applications have
reduced the value of the subject property.
8. The Board concurs with the Administrator's report that there is no evidence that domestic
water, sanitary sewer and access for the desired use on the subject property are feasible.
However, these matters can and would be evaluated in connection with a development permit
application. Despite the lack of a precise amount of reduction in value, the loss of the ability to
create additional lots on 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 that
development; 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
properties described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37.
Claimantss may apply for a use of the subject property consistent with the substantive land use regulations in
effect at the time it 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 November 15, 1995. However, if a court of
competent jurisdiction should interpret Measure 37 in such a way as to conclude that despite conveyance to the
LLP, individual partners (and these individual claimants here) are nonetheless owners of the subject property,
then their acquisition date would be as Ordered by the Circuit Court or if appealed, as determined by the
Appellate Courts, and in the absence of a court-determined date, May 15, 1982. 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 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. 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 date of acquisition for Stearns Land Co., LLP.
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.
PAGE 2 of 3- ORDER No. 2007-005 (09/12/07)
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
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 -r± day of September, 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
_6~w~ - lNh~_
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-005 (09/12/07)
DE R. LUKE, VICE-CHAIR
TAMMY B , CO ISSIONER
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6570 Fax (541) 385-3202 - vwwv.deschutes.org
TO: Board of County Commissioners
From: David Kanner, County Administrator
RE: Measure 37 Claim -Stearns Land Company, LLP and Joyce
Stearns Barney and Ann Stearns Ramseyer (Claimant)
52595 Huntington Road, LaPine. OR
Introduction
DATE: September 12, 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. Claimants and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, claimants 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 July 28, 2006, when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. Originally this claim was submitted by Stearns Land Company Limited Partnership and
processed by the County. Prior to adoption of a proposed order Claimant requested that it be given an
Page 1 of 7 - Exhibit A - Order No. 2007-005
opportunity to amend the claim to include the general partners in their individual capacities as additional
claimants. The Board allowed the claim to be so amended.
The property consists of three tax lots with approximately 116 acres in total. The current zoning is EFU,
LaPine Subzone, and FP, Floodplain. The Claimants' desired use is a five-acre lot subdivision and
Claimant alleges a reduction in value of approximately $3,010,900 due to the inability to divide the
property as desired. The following is an analysis of the evidence in the record on the elements of this
Measure 37 claim.
Current Owner - Stearns Land Company, Limited Partnership is the owner of the parcels comprising this
claim: 21-10 Tax lots 1403, 1415 and 1416 located at 52595 Huntington Road, LaPine. Claimant
company acquired the property from Shirley Stearns Browning, Joyce Stearns Barney and Ann Stearns
Ramseyer in 1995. The evidence shows that a partner of Stearns Land Co., Limited Partnership is Joyce
Stearns Barney. The Stearns family corporation, Stearns Land Co., Inc., first acquired the property by
deed, dated March 12, 1946. The corporation deeded the property to Crystal Stearns by deed dated May
27, 1968. Upon her death in 1982, the property passed to her three daughters, doing business as
Stearns Land Co. by deed dated May 15, 1982.
The three daughters doing business as the Stearns Land Co., a general partnership deeded the property
to themselves as tenants-in-common by an undated Warranty Deed signed and recorded November 15,
1995. On November 15, 1995, the last sister signed the deed of the property to Stearns Land Co. Limited
Partnership by undated Warranty Deed. The deed, executed on November 18, 1995, states the three
daughters conveyed to the limited partnership on October 23, 1995. Shirley Stearns Browning has since
passed away.
Joyce Stearns Barney and Ann Stearns Ramseyer are presenting this claim both in their individual
capacities and as general partners on behalf of the Limited Partnership.
The County has on two previous occasions determined that a shareholder in a closely held corporation
should be considered as having an interest in property of the corporation (Leason/Pine Ridge Ranch Co.
and Ward/Kim Ward LLC). These two cases are distinguishable insofar as the property was originally
acquired by the individuals and transferred for "estate planning purposes" to a corporation. The Board
has therefore decided that when a person who owns property as an individual, transfers title to a
corporation and becomes a shareholder, they continue to retain a property interest as that term is used in
Page 2 of 7 - Exhibit A - Order No. 2007-005
Measure 37. The claimants would argue that the same rationale the Board applied in these earlier cases
should apply in the case of a limited partnership which consists of the same individuals who established
and continue to control such entity.
In this case, the current owner is a limited partnership, not any individual. Joyce Stearns Barney, for
example, signed the claim as a partner on behalf of the partnership. Measure 37 is a state law that must
be read together with other state law. ORS 67.060 states that "Property acquired by a partnership is
property of the partnership and not of the partners individually" and that property is partnership property if
acquired in the name of the partnership. The deed in this case demonstrates that the property was
acquired by the present owner, Stearns Land Co., Limited Partnership in 1995.
This claim has also been submitted by the individual partners of the limited partnership. Joyce Stearns
Barney and Ann Stearns Ramseyer (together referred to herein as "Individual Claimants") have asserted
that despite title being vested in the limited partnership that they continue to have a property interest as
that term is defined in ORS 197.352 (Measure 37). Individual Claimants assert that their interest in the
property first arose in 1982 upon the death of Crystal Stearns. On November 15, 1995 Individual
Claimants conveyed their interests by Warranty Deed to Stearns Land Company, an Oregon limited
partnership. ORS 93.850 provides that a warranty deed conveys the entire interest in the described
property at the date of the deed and the grantor is forever estopped from asserting that the grantor had at
the date of the deed an estate or interest in the land.
Given the ambiguous, yet broad definition of Owner contained in ORS 197.352, these individuals may
have obtained an interest in and continuously held such interest since 1982 or not, assuming the effect of
the warranty deed executed in 1995 to the limited partnership was to convey their entire interest in the
property. This also assumes that the Measure 37 definition of Owner was not intended to amend the
Oregon law of partnerships. The order should identify this uncertainty by providing that the effect of the
statute and deed, herein discussed, left the individual claimants' entire interest with the limited
partnership, but leave open the possibility that if a court should determine that they nonetheless retained
some interest in the property for Measure 37 purposes, that their acquisition date would be 1982.
Owner Date of Acquisition - November 15, 1995
Page 3 of 7 - Exhibit A - Order No. 2007-005
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 (1), does not distinguish
between the acquisition date of an owner and that of a family member to determine the extent of
reduction in value for compensation. Section (3)(E) exempts from the Measure 37 claim those regulations
which were enacted prior to the acquisition of the property by the owner or family member of the owner
who also owned the subject property. This distinction in the acquisition dates is due to the differences in
remedies available under Measure 37, payment of compensation versus issuing a waiver. If a public
entity chooses not to apply the land use regulations, rather than compensate an owner for the value lost
to the regulations, the public entity is limited to permitting the owner to use the property only for those
uses that were permitted at the time the owner acquired the property. Pursuant to Section (8), the owner
is entitled to a waiver of only those land use regulations that were in effect at the time the owner (not a
family member of the owner) gained an interest in the property. 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, often
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 Stearns Land Co., Limited Partnership obtained
an interest in the property is November 15, 1995. While the claim asserts that their interest first arose in
1982 by way of conveyance from mother to daughters, the limited partnership did not acquire an interest
under the documents presented by claimant until November 15, 1995, the date the deed was executed.
As discussed in the previous section, it appears that the individual claimants currently have no interest in
the property, having conveyed it by warranty deed to the limited partnership in 1995. If a court should
nonetheless determine that they retained an interest for Measure 37 purposes, then their interest would
have first arose in 1982.
Restrictive Regulation - FP/EFU.
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
time the property was acquired, and thus reduce the value of the claimant's property. The Claimants have
Page 4 of 7 - Exhibit A - Order No. 2007-005
identified the FP/EFU zoning, and the county's subdivision ordinance as reducing the value of their
property by inhibiting development of a subdivision. All were adopted prior to the acquisition date of 1995.
It appears that, based upon zoning in effect in 1995, that a subdivision of the property would not have
been allowed.
The flood plain designation on this property is on the FIRM with community number 410055, panel
number 0655, suffix C (Effective 8/16/88). The purpose of the Flood Plain Zone (Chapter 18.96) is,
among other things, to "protect the public from the hazards associated with flood plains." The FP Zone
restricts the ability to create new lots within areas that are subject to the 100 year flood occurrence.
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. That portion of the property
now subject to the FP Zoning designation may affect the configuration of a future subdivision.
It appears that, based upon zoning in effect in 1995, that a subdivision of the property would not have
been allowed. On the other hand if the daughters are determined by a court to have obtained an interest
in the property and continuously owned it, then with an acquisition date of 1982, the property might have
development potential, based upon regulations in place 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 of the property resulting in the current zoning being
enforced on the subject property. Claimant has not demonstrated that submitting an application for such a
land division would be futile. However, this Report confirms that such an application for the desired
subdivision 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 - $3,010,900 alleged on Claim Form
The ordinance requires that the Claimant 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 not submitted evidence that domestic water is available for the desired
subdivision.
• Claimants have not submitted evidence that sanitary service is or would be feasible for the
desired subdivision.
Page 5 of 7 - Exhibit A - Order No. 2007-005
• Claimants have submitted an appraisal of the current value of the property if a subdivision to
create 5-acre lots was allowed. While that would not have been allowed in 1995, a land division
might have been allowed under ordinances in effect when a "family member" of the current owner
first acquired the property. As such, this would represent some evidence of the diminution of
value from just before and just after adoption of the county's restrictive land use regulations.
Claimants' 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 Claimants 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 Claimants could have obtained approval of a subdivision of the property on the date they first acquired
an interest in the property, but not under zoning restrictions adopted after Claimants' acquisition date, and
the resulting lots are fully marketable and useable by future owners, then the value of Claimants' 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 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, Stearns Land Co., Limited Partnership has continuously owned an interest in the property
since 1995. A claimant who receives a waiver must use the current process to seek the needed
Page 6 of 7 - Exhibit A - Order No. 2007-005
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
Stearns Land Co., LLP, the present owner of the property, has 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 November 15, 1995, the date when Claimant first acquired an interest in the property. There
is some evidence in the record that some additional development on the subject property may be feasible
for available domestic water, sanitary waste disposal and road access.
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
November 15, 1995, to allow the Claimant to use the property in a manner permitted at the time it
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 use.
With respect to the individual claimants they appear to have conveyed their entire interest in the property
to the limited partnership claimant. However, if a court of competent jurisdiction should interpret Measure
37 in such a way as to conclude that despite such conveyance these individuals nonetheless are owners
of the subject property, then their acquisition date would be May 15, 1982.
Cautionary Note on Measure 37
Claimant should understand that a decision by Deschutes County may not enable them 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.
Likewise, because a portion of the subject property is located within the city limits of La Pine, Claimants
may not proceed with future development or construction unless the City of La Pine approves a waiver of
applicable city land use regulations.
Page 7 of 7 - Exhibit A - Order No. 2007-005
EXHIBIT B
Parcel 1
In Section Thirty-five (35), Township Twenty-one (21) South, Range Ten (10) East of the
Willamette Meridian, Deschutes County, Oregon.
That portion of the Northwest Quarter of the Southeast Quarter (NWl/4SE1/4) and the East Half of
the Southwest Quarter (E1/2SW1/4) lying and being Easterly of the center line of the Little
Deschutes River.
SUBJECT to the 100 year flood plain boundary as shown on minor land partition No. MP 80-61,
dated September 24, 1980.
ALSO SUBJECT to rights of the public, if any, in and to that portion of said premises lying below
the ordinary high water line of the Little Deschutes River.
EXCEPT that portion of the above described lying within Burgess Road and Pengra-Huntington
Road.
Parcel 2
In Section Thirty-five (35), Township Twenty-One (21) South, Range Ten (10) East of the
Willamette Meridian, Deschutes County, Oregon.
That portion of the Northwest Quarter of the Southeast Quarter (NW1/4SE1/4) and the Northeast
Quarter of the Southwest Qtarter (NEl/4SW1/4) lying and being Westerly of the center line of the
Little Deschutes River.
SUBJECT to the 100 year flood plain boundary as shown on minor land partition No. MP 80-61,
dated September 24, 1980.
ALSO SUBJECT to rights of the public, if any, in and to that portion of said premises lying below
the ordinary high water line of the Little Deschutes River.
Parcel 3
In Section Thirty-five. (35), Township Twenty-one (21) South, Range Ten (10) East of the
Willamette Meridian, Deschutes County, Oregon.
That portion of the Southeast Quarter of the Southwest Quarter (SE1/4 SWl/4) lying and being
Westerly of the center line of the Little Deschutes River.
SUBJECT to the 100 year flood plain boundary as shown on minor land partition No. MP 80-61,
dated September 24, 1980.
ALSO SUBJECT to rights of the public, if any, in and to that portion of said premises lying below
EXHIBIT B