2007-1563-Order No. 2007-137 Recorded 10/5/2007DESCHUTES COUNTY CLERKDS y~1 200701563
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COMMISSIONERS' JOURNAL 10/05/2007 08;28;09 AM
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2007-1563
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DESCHUTES COUNTY OFFICIAL
RECORDS
REVIE ^
NANCY BLANKENSHIP, COUNTY
CLERK
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LEGAL COUNSEL
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NO FEE
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Central Electric
Cooperative, Inc. to Use the Subject Property as
Allowed When they Acquired the Property
* ORDER NO. 2007-137
WHEREAS, On November 2, 2004, the voters of the State of Oregon approved Ballot Measure 37
which added provisions to Oregon Revised Statutes (ORS) Chapter 197 to require, under certain circumstances,
payment of just compensation to landowners if a government land use regulation reduces property value. In lieu
of just compensation, Ballot Measure 37 authorizes the governing body of a local government to modify,
remove or not apply the land use regulation, and
WHEREAS, Central Electric Cooperative, Inc. made a timely demand for compensation under Measure
37 for a reduction in value to their property between Crooked River and Lone Pine Substation, Oregon due to
regulations which took effect after they acquired this property, and
WHEREAS, Section 8 of Measure 37 authorizes the Board, as the governing body responsible for
adoption and enforcement of County regulations, to not apply the identified land use regulation that restricts the
owner's use and reduces the value of the property in lieu of payment of compensation; and
WHEREAS, the Board has received the report and recommendation of the County Administrator as
required by DCC 14.10.090; and
WHEREAS, the Board has considered the Administrator's report and the evidence presented by the
parties at a Board meeting as required by DCC 14.10.090; and
WHEREAS, the Board makes the following findings of facts and conclusions;
Central Electric Cooperative, Inc. (CEC) is a privately owned cooperative and not a public
utility or public entity. CEC has continuously operated an electricity transmission line,
commonly known as the Crooked River - Lone Pine Substation line since 1973. The fact that
CEC is the exclusive provider of electrical power to its customers does not result in CEC being
other than a private entity. While CEC has acquired easements for certain purposes after 1973,
the claim in this case is based only upon those easements and permits obtained on or before July
5, 1973. CEC does not fall within the definition of public body under ORS 192.410.
2. CEC is the current owner of the subject property, a private right of way easement, located
within Deschutes County and described in Exhibit "B," having acquired such interest and
continuously owned it since July 5, 1973. While the owners of property which are burdened by
CEC's easements have not consented to CEC's application under Measure 37, CEC's interests
are distinct from those of such owners. Moreover, the DCC 14.10.040 allows but does not
require a claimant to join the fee owners of property in its claim or otherwise obtain their
consent as a condition to filing a claim.
PAGE 1 of 3 - ORDER No. 2007-137 (10/01/2007)
On December 1, 2006, Central Electric Cooperative, Inc. filed a Measure 37 claim with the
Community Development Department.
4. The Board concurs with the Administrator's report that the current County regulations, EFUTE
and the conditional use permit process, if applied to the subject property, would not permit the
desired above-ground upgrade of the electricity transmission line on this subject property. The
current County land use regulations are land use regulations which are not exempt from
Measure 37 claims.
5. The regulations, EFUTE and the conditional use permit process, were not in effect at the time
Claimants acquired the property.
The Board concurs with the Administrator's report that Claimant has demonstrated that the
inability to improve the electricity transmission line above ground coupled with CEC's need to
upgrade such line and thereby fulfill its obligation to furnish electricity to its present and future
customers in the area would result in a substantially greater expense of developing and
constructing a replacement transmission line. Therefore, the effect of the enforcement of County
land use regulations on CEC's property is to reduce the value thereof.
The County Administrator has recommended that the zoning regulations for the subject property
between Crooked River and Lone Pine Substation, Oregon that were not already in effect until
after July 5, 1973, 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";
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 Central Electric Cooperative claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply zoning and nonexempt land use regulations to the
subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37.
Claimant is hereby authorized to use the subject property as permitted at the time it acquired the property.
Claimant may apply for a use of the subject property consistent with the zoning and land use regulations in
effect at the time it acquired the property. That use shall be permitted if the subject property fully complies with
all regulations in effect in 1973, if any. The Community Development Director is hereby authorized to
determine the effects that any other non-exempt regulations in effect on this date would have on Claimant's
proposed development differently than current non-exempt regulations.
Section 3. To the extent that any law, order, deed, agreement or other legally enforceable public or
private requirement provides that the subject property may not be used without a permit, license, or other form
of authorization or consent, this order does not authorize the use of the subject property unless the 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. 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. 2007-137 (10/01/2007)
PROPERTY DESCRIBED HEREIN, AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE
SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON.
Section 6. This order does not affect any land use regulations of the State of Oregon. If the use allowed
by Section 2, above, remains prohibited by a State of Oregon land use regulation, the Planning Director shall
send notice of the Board's decision to the Director of the Department of Land Conservation and Development.
The notice shall include a statement that the County will not accept an application for a building permit related
to the newly allowed use on the property until the earlier of the following events: (i) notice by the Department of
Land Conservation and Development that it concurs with the Board's decision, or (ii) a date 180 days from
issuance of the Board's decision where no response is made to the notice by the Department of Land
Conservation and Development.
Section 7. Nothing contained in this Order is intended as granting to CEC any interest in real property,
or as depriving any property owner of any property rights or property interests. If any term or provision of this
Order is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the
remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be
construed and enforced as if this Order did not contain the particular term or provision held invalid.
Section 8. 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 of October, 2007.
ATTEST: /
~l'C/ UCH { 1 C t~
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
MI
UK=2.ir
TAMMY EY, Commi oner
Y, Chair
P
AGE 3 of 3 - ORDER No. 2007-137 (10/01/2007)
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6625 Fax (541) 617-4748 - www.deschutes.orq
TO: Board of County Commissioners
From: Mark Pilliod, Deschutes County Legal Counsel
RE: Measure 37 Claim - Central Electric Cooperative, Inc.
12 - Crooked River - Lone Pine Substation
DATE: July 23, 2007
Introduction
This report and recommendation is intended to be a summary and evaluation of evidence in the
record. 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. 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. The ordinance also
provides further opportunities for affected neighbors to present evidence and testimony at the Board
meeting when these claims are considered.
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 Measure 37 claim was 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 is a
0.13 mile portion of Central Electric Cooperative, Inc.'s Crooked River - Lone Pine Substation
transmission line utility easements (see attached Exhibit B). The current zoning is Exclusive Farm Use-
Terrebonne (EFUTE). The Claimant's desired use is to upgrade an outdated 24 year-old, power
transmission line. Claimant alleges an approximate reduction in value of $2,600,000/transmission-mile
Page 1 of 5 - Exhibits A and B - Order No. 2007-137
due to the inability to complete an above-ground upgrade (increase in pole height and line capacity)
within the utility easement as desired. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim. Claimant is represented by the firm Francis Hansen & Martin.
Current Owner - Central Electric Cooperative, Inc.
Claimant presented copies of power line and right-of-way easements and other permits to the
County as showing a Measure 37 ownership interest in the 0.13 miles. These documents support
Claimant's ownership of these utility and right-of-way easements before its construction in 1973.
Owner Date of Acquisition -1973
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 an owner or 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 owner or family member held the property for many years.
CEC is the current owner of the subject property, a private right of way easement, located within
Deschutes County and described in Exhibit "B," having acquired such interest and continuously owned it
since July 5, 1973. While the owners of property which are burdened by CEC's easements have not
consented to CEC's application under Measure 37, CEC's interests are distinct from those of such
owners. Moreover, the DCC 14.10.040 allows but does not require a claimant to join the fee owners of
property in its claim or otherwise obtain their consent as a condition to filing a claim. The current electric
transmission line has been in place since 1973.
Restrictive Regulation - EFUTE and CUP Process.
Under the terms of the ordinance, the Claimant must identify County land use regulations that
prevent the Claimant from using the property in a way that he or she otherwise could have used the
property at the time the property was acquired. The Claimant must also show that these identified
regulations cause a loss of property value.
Page 2 of 5 - Exhibits A and B - Order No. 2007-137
The Claimant has identified the conditional use permit process (CUP) as the land use regulation
restricting the desired use of an above ground upgrade of their electricity transmission line. In a previous
matter, a short section of another transmission line crossed land that is zoned for surface mining (SM).
The county's zoning ordinance allowed a "utility facility" as a conditional use in EFU and MUA zones but
not in an SM zone. CEC had no conditional use permit for the transmission line, and the parties and
LUBA properly regarded the line as a nonconforming use. In 2003, CEC sought to make improvements
to the transmission line. It proposed to install 190 poles made of weathered steel ranging in height from
64.5 to 83.5 feet above ground and separated by an average of 350 feet. In addition, CEC sought to
upgrade the transmission line from 69-kilovolt to 115-kilovolt capacity and to install new conductors and
lightning protection. CEC did not seek a conditional use permit for the improvements. Instead, it applied
to the County for nonconforming use verification for the existing line and for permission to make the
improvements. CEC asserted that it is entitled to make the improvements under ORS 215.130(5), which
permits alteration of a nonconforming use "when necessary to comply with any lawful requirement for
alteration in the use." ORS 215.130(5). CEC sought review of a Land Use Board of Appeals (LUBA)
decision remanding the County's approval of CEC's request to alter a portion of its electric utility
infrastructure (similar to the present matter), which was a nonconforming use. The Court of Appeals held
that supplier's request was not authorized under statute permitting alteration of a nonconforming use.
Cyrus v. Deschutes County, 194 Or.App. 716 (2004). These regulations, as well as EFUTE zoning are
County land use regulations, are subject to Measure 37 claims. The easement for this transmission line
was obtained after a land use ordinance or restriction was in place.
Reduction in Value - $338,000.00 alleged
The ordinance requires that the Claimant provide evidence of the amount of the claim in alleged
reduction in the value of the property resulting from the enforcement of the County's land use regulation.
Claimant has submitted affidavits estimating that excavation and underground installation of this line
would cost up to $2,600,000.00 per mile. That amount is after the per mile, above ground cost is
subtracted and the basis for a net $2,600,000.00 per mile, which is applied to the 0.13 mile line, yielding a
claim amount of $388,000.00.
Page 3 of 5 - Exhibits A and B - Order No. 2007-137
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 July 5,
1973. A Claimant who receives a waiver must use the current process to seek the needed development
permits based on the zoning in place at the time the current owners acquired the property. Except in a
rare case, the current procedural requirements for handling permits are not regulations that reduce value.
Therefore, the County's procedural regulations are not waived.
Conclusion and Recommendation
The present 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 in 1973, the date it acquired an interest in the property. There seems to have been zoning of the
subject property at the time.
Our recommendation is that the Board approves 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 July 5, 1973, to allow the owner to use the subject property in a manner permitted at the
time it acquired the property. In essence, the County would not apply any land use regulations to the
Claimant's property which were not in effect when the Claimant acquired the property unless they are
exempt from a Measure 37 waiver under subsection (3)E of the Measure. This waiver is not a
development permit. Claimant must apply for any necessary development permits for any use that the
regulations in effect in 1973 would allow.
Page 4 of 5 - Exhibits A and B - Order No. 2007-137
EXHIBIT B
Tax Lot Vol-Pg Date Grantor Status
14-13-13-101 197-107 7/5/1973 Trueax
Comment
Specific Easement
Page 5 of 5 - Exhibits A and B - Order No. 2007-137