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2008-85-Minutes for Meeting July 23,2007 Recorded 2/20/2008COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKOS CJ 2008.85 COMMISSIONERS' JOURNAL 02/10/2008 09;24;50 AM IIIIIII IIIIIIIIIIIIIIIIII III 2008-85 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] previously recorded in Book or as Fee Number and Page ~`O-TE S ~ 02 { Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JULY 239 2007 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Michael M. Daly, Dennis R. Luke and Tammy Baney. Also present were Dave Kanner, County Administrator; Mark Pilliod, Peter Werner and Laurie Craghead, Legal Counsel; Tom Anderson, Kristen Maze, Dee Van Donsalaar, Catherine Morrow and Anthony Raguine, Community Development; media representative Cindy Powers of The Bulletin; and approximately thirty other citizens. Chair Daly opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was a Public Hearing and Consideration of First Reading of Ordinance No. 2007-019, a Proposed Flood Plain Zoning Text Amendment. Chair Daly read the opening statement to the audience. In regard to bias, prejudgment or personal benefit, each Commissioner said they had none to claim. There were no challenges from the public. Kristen Maze stated that FEMA requires this change due to its recent review of the area. FEMA wants standard language added so that the national flood insurance program can still apply in this area. The County must also adopt the revised FEMA maps. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 1 of 23 Pages A letter requesting map amendment can be sent to FEMA by citizens if they believe there are reasons why their property should not be included in the flood plain. Tom Anderson stated that the Planning Director is the official under State law to make decisions regarding planning issues. Laurie Craghead said that a decision is appealable but not to the Department Director - instead, to the Hearings Officer. Commissioner Baney asked if any changes were made in addition to the FEMA requirements. Ms. Maze said that it includes only what is required by FEMA. There are a lot of minor changes regarding properties. Commissioner Luke asked about the 400 square foot maximum for R.V.'s. Ms. Maze said this is to address the park model. Commissioner Luke recommended that she check with DMV to find out the maximum sizes allowed on State highways. If someone wishes to build in a flood plain and can get approval from the County, FEMA requires they be notified although no permit is required. Chair Daly opened the hearing. Janice Stoddard of Oregon Water Wonderland, who lives on Wood Duck Drive on the river, testified. She said they built their house about ten years ago and it was not in a flood plain then, and it is unlikely it will be subject to flooding. She wanted to know why they are now shown living in a flood plain, and asked where FEMA gets its information. Commissioner Luke explained that the Deschutes River is not a typical river. There are dams in place to handle the water. FEMA makes the map and the County does not have authority to change it. Ms. Maze said that the entire property may not be in the flood plain; it could perhaps just affect a portion of the property. Camilla Emmons, of Deschutes River Recreation Homesites Unit 6, on 54649 Silver Fox Drive, asked about the recreational vehicle aspect, when the RV is used as a temporary residence. She filed a code complaint against a neighbor in regard to a wooded, vacant lot that is not tended to, where there is an old RV parked against dead wood. This is a fire hazard. She said she received no response to her complaint in 2005. Nothing has been done to improve the property. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 2 of 23 Pages Ms. Maze said that an RV can be used as a residence for up to 180 days with a permit. RV's will need to be road ready per DMV. State statute also allows someone to live in an RV if there is a medical hardship. Commissioner Luke said that people can park an RV on their property to store it as long as they don't live in it. Chair Daly then closed the public hearing. Ms. Maze asked for an emergency clause which would make the Ordinance effective on September 28, 2007. LUKE: Move first reading, by title only. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. Chair Daly then did the first reading by title only. The second reading will take place on August 6. 3. Before the Board was a Hearing (continued from April 23 and June 4) and Consideration of Signature of Order No. 2007-075, a Measure 37 Claim (Claimant: Big Falls Ranch). Tom Anderson explained that the property is located at 70460 NW Lower Bridge Way. Lot 1400 is approximately 300 acres zoned EFU Lower Bridge subzone; lot 1402 is about 300 acres with the same zoning as well as a surface mining impact area overlay. Lot 1403 is approximately 289 acres with the same zoning. Lot 1404 is 205 acres, lot 1405 is 125 acres, and lot 1406 is 228 acres. Lot 1500 is 286 acres zoned EFU with a strip of flood plain zoning on the eastern edge near the river. The total acreage is about 1,740. All of the property was obtained on October 28, 1988 via quitclaim deed, and has been owned continuously. At that time the property was zoned EFU 80. The minimum lot size is no longer the same; it is still 80 acres minimum for dry land, but different if it is irrigated. The rules for utilizing the minimum lot size are much more complicated now. If a waiver is granted, the rules would be different in regard to minimum lot size and limitations. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 3 of 23 Pages There were a number of letters of opposition; some are within the eligibility area and some are not. Commissioner Luke stated the surface mining impact area is a fairly new regulation. Tom Anderson said that mining is not currently taking place on the adjacent property. Commissioners Luke and Daly disclosed that they have both known the Barber family for many years. Bob Lovlien and Rex Barber, Jr. came before the Board. They have reviewed the staff report and the Order and have nothing to add to it. Mr. Barber said he is trying to preserve what the family had when they bought the property in 1988. It was in the family many years before then. There is no application for a land use change to present at this time, but he felt it was prudent to file the claim now. Mark Pilliod said that the claim was filed on behalf of Big Falls Ranch, and even if the corporation changes hands the waiver would remain. No additional testimony in support of the waiver was offered. Chair Daly opened the hearing at this time. Margie Reed, who owns an adjacent lot, said she opposes the claim. She said as the population grows, development is inevitable; but she would like to see development contained to allow wildlife to move through and to protect the future of the area for generations to come. Commissioner Luke stated that the decision on Measure 37 was made by the voters, and the County either writes a check or grants the waiver. This is why the Courts are now involved. Dugal Haines of 71160 Lower Bridge Road owns an adjacent property. He said that this is part of the change of reality in the County. He believes that the original intent of Measure 37 was to provide a way for some people to use their property. He would like to see the Commissioners take a stand on quality of life issues and look to the future. No other testimony in opposition was offered. The applicant had no rebuttal testimony, so the hearing was closed. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 4 of 23 Pages LUKE: Move signature. The Barber family has been around for a long time and respect their property and have taken good care of it in the past. BANEY: Second. We are just addressing the acquisition date. Other issues will be addressed separately at a future date. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 4. Before the Board was a Hearing (continued from April 23 and June 4) and Consideration of Signature of Order No. 2007-076, a Measure 37 Claim (Claimant: Thompson). The claimant asked that this be continued; there is no date certain at this point. 5. Before the Board was a Hearing (continued from April 23 and June 4) and Consideration of Signature of Order No. 2007-080, a Measure 37 Claim (Claimant: Dowell). William Kuhn came before the Board to ask about a recusal. Mr. Pilliod stated that the Board can hear what Mr. Kuhn has to say in this regard. Mr. Kuhn said he lives next to the Dowell property. He asked that Commissioner Luke voluntarily recuse himself from this hearing. He said he understands he does not have the legal right to ask for this because he can't show that Commissioner Luke has any financial involvement. However, he said that there are numerous items that he feels make it compelling why Commissioner Luke should recuse himself. Commissioner Luke stated that he will not voluntarily recuse himself on this basis and asked that Mr. Kuhn be more specific. Mr. Kuhn stated that this involves previous decisions regarding this property that he feels were wrong and perhaps even illegal. Commissioner Luke stated that if he is going to be accused of illegal activity, it should be in writing. The decisions regarding this claim have been made by the Board at the time and not by just him. Commissioner Daly asked if there was anything in writing to support this claim. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 5 of 23 Pages Mr. Kuhn stated that on a couple of items, yes. A meeting was requested with Commissioner Luke in August 2000 that was attended by George Read, Mr. Kuhn, his wife and attorney. At the meeting he requested Commissioner Luke review procedural and process errors that he feels were made regarding the development of the Dowell property. Only one item was discussed. A map was presented that George Read (of Community Development) said was how the maximum setback of the Dowell property would have been measured. (He provided a copy of the map to Legal Counsel at this time.) Mr. Dowell stated that he showed Mr. Read and Commissioner Luke the plat map for the parcel, and the building line of 400 feet was very clear and precise. The Dowells were to adhere to the maximum building line. Commissioner Luke asked what he thinks the illegal activity was. Mr. Kuhn said that the maximum building line of 400 feet was very clear and precise, and information prepared by Paul Blikstad (Community Development) in 1992 required that the Dowells adhere to the maximum build line. There was a letter to the Dowells and a final plat with a line on it, with comments entered on the site map. Commissioner Luke said he still wanted to know what the purported illegal activity was. Commissioner Daly pointed out that this is an issue that was dealt with years ago and he was also involved in it. He asked that Mr. Dowell please state the specific issues he has with Commissioner Luke so that they can be on the record. Mr. Kuhn said there was a letter from Liz Fancher to Ms. Craghead regarding a Declaratory Ruling 01-05, which was appealed to the Count as 01-19, including comments Commissioner Luke had previously made a decision. There was also a letter from attorney Jerry Martin regarding Commissioner Luke's decision, reiterating the fact that there was little or no contact with Commissioner Luke prior to that point. Commissioner Daly stated that he has already stated that he won't recuse himself, so this needs to move on. Mr. Anderson gave an overview of the Measure 37 claim of Jeff and Pat Dowell. They desire to continue the construction of a partially completed home, and are asking for a waiver of setbacks under the landscape management and wildlife overlay zones. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 6 of 23 Pages Measure 37 does not address any specific land use or building related actions. The Order simply reviews the ownership history. The amount of damage claimed is $100,000. In terms of ownership, the property was acquired in 1989. There is evidence in the record of a land sale contract on September 20, 1989; there was also a second land sale dated 1990 naming different individuals as the sellers. However, for purposes of establishing a Measure 37 interest, ownership was established on September 20, 1989. Mr. Anderson said that material in opposition was submitted by Mr. Kuhn. Bob Lovlien, an attorney representing the Dowells, said that there were not two sales. The Dowells bought the property in 1989 but there was another agreement in 1990 to adjust the property lines. The Kuhns signed it. They Dowells wish to build further from Sisemore Road than the currently required 100 to 300 setback. Commissioner Luke asked when the wildlife overlay came in. Mr. Anderson stated this occurred after the acquisition. Lee Kuhn then testified regarding the 1989 land sale contract. The metes and bounds were incorrect. The Dowells had misclaimed ownership of part of the property and a third parcel. This would affect the value. She said there needs to be something on which to base a reduction in value. The Dowells own only a half interest in the third parcel. Deschutes County caught the error and notified everyone that it needed to be corrected. She said she and her husband signed as sellers but were not compensated. In her opinion, the 1990 document made the previous document null and void. At this time she submitted some maps to Legal Counsel. She said what the Dowells are asking for has nothing to do with the dwelling. They can't add on to it as there was a restriction in place prior to their purchase. The County should not be able to waive this restriction. She added that if the Dowells were able to build another dwelling, they can't do it as only a single family dwelling is allowed for this parcel. What they are asking the County to do is waive the 300-foot setback restriction for something they can't do. She added that she feels everything that has been done on this property has been a self-created problem. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 7 of 23 Pages Chair Daly asked if this testimony is related more to a land use application. Mr. Pilliod replied that much of what is being offered as testimony has to do with the application process. Commissioner Luke stated that they are making a point that part of the property was not transferred until the second agreement. Mark Pilliod said he asked GIS to compare the two documents, and the first one was different as it discussed a common area. The separate parcel exclusively for the Dowells was consistent. He added he is not sure what the point is, other than the legal description to the common area. The best thing at this point is to take testimony and ask the applicant. In regard to the second agreement, it has been suggested that it nullifies the previous agreement. The first agreement is between the Dowells and the sellers, and does not involve the same parties. Ms. Kuhn stated that the parties are the same except for her and her husband. It involves the same purchase. She said it deprived her and her husband of their 50% ownership. The second agreement was meant to void the previous agreement. The other issue is that siting and permitting is the point of Measure 37, and they are asking the Commissioners to waive restrictions, which is the point of the wildlife overlay, to keep intrusion of people nearer the road. The only thing affected if this is waived is a small part of the parcel between 300 and 400 feet. The reduction in value is not there. They have to abate the first residence, which is not feasible. There is no appraisal and no proof to suggest a reduction in value. The protection of wildlife movement is at the request of the State. This is not even a Measure 37 claim. She asked that the Board reject this claim. Ms. Kuhn added that if the Board accepts it back to 1989 in a quasi-judicial hearing, it defrauds her and her husband of ownership of the third parcel, clouds the title, and they receive no compensation. The applicant did this deliberately when they should have submitted the final agreement. Commissioner Baney asked if they had 50% ownership in regard to the property. Ms. Kuhn relied that in the original contract, it was represented as $42,000 for two parcels. One is the 4.3 acre building site. She said she is not saying this is wrong, but her objection is that the Board not accept that contract because it is fraudulent and has to do with her property. In the third paragraph of the first contract on page 1, the total ownership is 34.5 acres. If the Board goes by that contract, how much of the $42,000 is for that or the 4.3 acres, and how is it divided up. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 8 of 23 Pages Commissioner Baney stated that she doesn't see this as a decision to be made today. The question is in regard to the property that has the claim. That land was not misunderstood as part of the purchase even though the legal description was adjusted afterwards. Ms. Kuhn said the second contract was correct in metes and bounds and the amount of land. The point is, how much is for the 4.3 acres. When the Board considers a reduction in value, what is it being based on. Commissioner Luke asked if there is any difference in land use regulations from September 20, 1989 and sometime in 1990. Mr. Anderson replied there was no substantive difference as far as he knows. Commissioner Luke noted that it therefore makes little difference which date is used. Commissioner Baney added that the wildlife overlay was implemented in 1992. Ms. Kuhn stated that in the second contract, the Board needs to look where the commas are under the word "sellers", and also where it refers to the amount of money to paid to her and her husband. As she understands Measure 37, the seller of the property can also enter into a Measure 37 claim if the contract has not yet been satisfied. Commissioner Baney asked why they took so long to bring this up. Ms. Kuhn said that a letter was sent prior to the claim. Commissioner Daly asked if they feel they have a right to say they don't want the Measure 37 claim to proceed. Ms. Kuhn replied that she is asking for that; that it should be considered since they aren't being compensated. Commissioner Daly said that when someone sells a property, even on contract, the buyer has certain rights to use the property. Ms. Kuhn stated that she talked with a title company and when a title search is done, the contract will be brought up and has to be dealt with prior to a sale. Commissioner Daly noted that this has nothing to do with what is being addressed today. Commissioner Baney added that if they are in default, the Board cannot remedy it. Ms. Kuhn said that she and her husband should be listed as a third party. Under the current wording this is possible. Commissioner Baney stated that on a title search, the Dowells come up as owners. Unless the Kuhns try to foreclose or remedy, it is the Dowells' property. This is not a gray area. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 9 of 23 Pages Commissioner Luke said that this was signed off in 1990 and the remaining $17,000 was to be paid by 2005. He asked if they have been paid. Ms. Kuhn stated that she is not asking for compensation. Commissioner Baney asked if they now want compensation based on the second document. Ms. Kuhn said that she and her husband are not responsible for the 1989 document. They have not submitted enough proof of ownership. Commissioner Baney stated that this issue is getting far beyond what the Board needs to decide. She asked if it would be appropriate to postpone this issue. Ms. Kuhn said that the value of the property must be addressed, at the time of purchase and today. The Dowells are supposed to give you all of the items that could be detrimental to the value and they did not do so. A civil court ruling indicated that there needs to be a joint ownership agreement, but they don't have to agree. This has been to court three times and the judge has said no. Also, there is a letter from Paul Blikstad in 1992 to the Dowells regarding the 400 foot line, which is referenced on the map. In regard to the value of the property, they tried to show comparable properties - parcels within two miles with common acreage and two building sites. Those have a homeowners' agreement in place. The Dowells do not have this and therefore can't sell the property. There was a sale from Stettler to Haines for $325,000, and the parcels were developed at about the same time. There was another across the road, 13.2 acres at $699,000, which was supplied by a Realtor. In 2001 there was a communication to the Dowells in the form of a sale agreement and receipt of earnest money for $220,000 to buy the Dowell property, but they turned it down. They feel the value is about $400,000. The attorneys communicated that they would sell for $350,000. Ms. Kuhn stated she asked for an appraisal. The problem with the property is that they cannot sell it, and it is a self-inflicted detriment. They built their structure illegally and it is non-conforming. There was a declaratory ruling regarding the side yard setback. She and her husband objected to the fact that there was no provision in the ruling for that line, and asked for a specific statement from the County regarding the maximum building line. They have been defrauded of the ability to enforce that line. Commissioner Daly asked if they appealed the County's decision. Mr. Kuhn stated that she discovered the map had to be recorded. Their argument is that the Dowells cannot build beyond that line. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 10 of 23 Pages In 2001 Rick Isham (former County Counsel) and George Read (former Community Development Director) testified that it wouldn't be enforced because it was not recorded. Ms. Kuhn said she and her husband gave the Dowells the opportunity for them to be quiet if the Dowells would just turn over the third parcel and put in a conservation easement, but Mr. Dowell would not agree. Ms. Kuhn added that they don't want this ignored, as it is not legal to waive this restriction. Mr. Kuhn said that there are numerous reasons why the County should toss this claim out. Irene and Lance Olivieri, who live across from the property, read a statement into the record (a copy of which is attached). Mr. Olivieri said that he wants to live in peace but also wants the law enforced. It is a dangerous precedence not to. Several facts cast doubt on the validity of the claim. Commissioner Baney asked if the 400 foot setback was in place at that time. Mr. Anderson replied it was enacted later. Any land use action is subject to a land use hearing before a Hearings Officer. That is the appropriate time to address this. Commissioner Baney asked if they have been skirting around Code enforcement and, if so, if any action has been taken in that regard. Mr. Anderson stated that there has been Code enforcement action previously and currently. There are a lot of conflicting facts and nuances, and has been subject to interpretation for many years. It is not easy to say how it should have been or is, as there is lots of history. It could have an effect on the value, but does not change the direct analysis of when the Dowells acquired an interest in the property, per Measure 37. No other opposing testimony was offered. Due to the late hour, Mr. Lovlien asked for a couple of weeks to submit his rebuttal in writing. Mr. Pilliod said past practice has been to allow a response to new information. It is not limited to being in writing. Commissioner Daly said that there should not be any new information on this anyway. Mr. Lovlien added that this has all been litigated already. The waiver only addressed when they bought the property. He said that he can have his written material submitted by August 8. Commissioner Luke said that the other party can look at it then and can respond if they wish, and the Board can address the issue in September. Mr. Pilliod added that the Board would have to permit testimony at that time. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 11 of 23 Pages LUKE: Move this be continued to the September 10, 2007 business meeting. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 6. Before the Board was a Hearing and Consideration of Signature of Order No. 2007-117, a Measure 37 Claim (Claimant: Kraft). Mr. Pilliod stated that this was continued some time ago, and notice was not sent out for today's date. Because of that, it should be rescheduled. LUKE: Move this be continued to the September 10, 2007 business meeting. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 7. Before the Board was a Hearing and Consideration of Signature of Order No. 2007-005 and Order No. 2007-007, Measure 37 Claims (Claimant: Stearns). Mr. Anderson referred to an oversized map. This was originally presented on January 2 as a separate grouping of parcels. Both are partially within the City limits of La Pine. The first claim, Huntington Road, is mostly in the County. One parcel is now within the City of La Pine. There are three parcels totaling 110 acres and the Little Deschutes River goes through them. Zoning is a mixture of EFU La Pine Subzone and flood plain. The value as stated is $3 million or more. The land was originally acquired by the Stearns Land Company, which was incorporated in 1946. It was deeded to Crystal Stearns in 1968 and in 1982 it was passed on to the three daughters, who established the Stearns Land Company at that time. In 1995 the daughters deeded it to themselves as tenants in common, and conveyed it to the Stearns Land Company, limited partnership. The date of the partnership is the date of acquisition for the current owners. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 12 of 23 Pages The other parcels to the south are zoned flood plain and EFU, with a little of F-1 in one of them. The same use is desired, a five-acre rural subdivision. The stated value is $1,676,400. The family corporation acquired it in 1943, it went to Harry Stearns in 1968, and in 1971 when he died, it went via trust to Crystal, and eventually to the daughters in 1982. The partnership was established in 1995. There are two Orders that reflect 1995 as the date of ownership. There are similarities between this case and others regarding LLC's and limited partnerships. The claimant was allowed to amend the application to include the two surviving daughters. The partnership is not an LLC, and statute is clear that the property is the property of the partnership, not the individual owners. There has been one letter of opposition from Central Oregon Land Watch. The State has established November 15, 1995 as the acquisition date. The applicants' attorney, Jeff Wilson, originally submitted documents on behalf of the limited partnership. The Board had discussed whether a partner had Measure 37 rights. The board previously considered others that were similar, and determined that there were residual or separate interests in the property even though title was held by the partnership. The interests of the individuals has not been presented. Mr. Wilson asked to be permitted to return with a separate claim in their names. The final point is that the two distinct groupings of land is important in this case. Chair Daly opened the hearing at this time. Jeff Wilson of Miller Nash LLP, 446 NW 3rd St. #230, Prineville, said the County did a good job in its briefing. He previously addressed this issue on behalf of the limited partnership, and amended the application to submit the same information based on the individuals. There is one correction in regard to the State claim. The State did not grant a Measure 37 claim with a date of November 1995; the State actually denied the claims. This is currently subject to a petition of review at Circuit Court. This property has been in the Stearns family for decades. The case has raised some novel legal issues, particularly if it was transferred into a testamentary trust. When Harry Stearns died in 1971, the estate was conveyed into a testamentary trust for his wife, and his daughter was also co-trustee and conservator for her mother. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 13 of 23 Pages The other parcel was conveyed to Crystal, the wife, who died on February 14, 1982. The date of acquisition being requested is February 1982. There is a legal argument as to the definition of the owner under Measure 37. Per the trust, there is sufficient interest to bring this in a Measure 37 claim. Commissioner Baney noted that the documents do show the limited partnership as the claimant. Mr. Pilliod said that it gets confusing when you refer to file numbers. The two Orders refer to the acquisition date of the daughters in 1982, when Crystal died. When this was first considered by the Board, it was under the partnership. Mr. Wilson asked to add individuals to the claim. It has been amended since then to include the individuals, and submitted on behalf of the daughters in July. Commissioner Baney said that much depends on how the State defines a partnership. Mr. Pilliod stated that the Board can decide whether there is an individual interest. However, the Court may decide differently. Mr. Wilson said that the language in the Orders is not what he would like to see. He feels that the individuals have an interest in their own right. No additional testimony was offered, and the hearing was closed. Commissioner Luke said that he would like to follow staff's recommendation. He feels that this needs to go to the Courts. Commissioner Daly added that the Board has held that corporations and limited partnerships are separate, but the Courts might overturn that. BANEY: Move that these Orders be brought back to the Board at the September 10, 2007 business meeting. LUKE: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 8. Before the Board was a Hearing and Consideration of Signature of Order No. 2007-109, a Measure 37 Claim (Claimant: Cyrus). For the record, Commissioners Luke and Daly disclosed that they have known the Cyrus family for a long time. Minutes of Board of Commissioners' Business Meeting Page 14 of 23 Pages Monday, July 23, 2007 Tom Anderson said this involves ten parcels located off of Highway 126. The staff report lists the differing acquisition dates and the zoning at the time of acquisition. The zoning is now mostly EFU Cloverdale-Sisters subzone, with some flood zone and surface mining overlay. Lot 700 was acquired in February 1965, lot 100 in 1965, and lot 500 should indicate 1974. LUKE: Move that the dates be corrected. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. Mr. Anderson said that lot 400 was acquired in 1974; lots 1500 and 1600 in 1972, lot 500 in 1961, lot 501 in 1976, lot 701 in 1973, and lot 702 in 1976. In the 1960's, no zoning was in place regarding mixed use or a residential subdivision. The amount of damages claimed is $29,500,000. In the early 1970's, zoning was slightly different. Mr. Anderson said that this will govern future land use action, and will be a complex decision. Mr. Pilliod said that new material was submitted on July 16 regarding several items. There is one additional parcel described as having two or three acres of surfacing mining. This was not part of the previous application. An Ordinance would have to b established to affect these, and it is his recommendation that the Board not consider this. There are references to an unrecorded contract for one parcel, which was originally thought to be acquired in 1984. There is one letter of opposition from Paul Lipscomb. The difference between the current report and the one issued in May is the disposition of a case in Circuit Court, which was remanded. Commissioner Daly opened the hearing at this time. Ross Day of Oregonians in Action of Tigard spoke for the claimants. He said there was no objection to the Orders. He added that he has the original contract for sale on the parcel with a different acquisition date. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 15 of 23 Pages Paul Lipscomb, owner of an adjacent property, said he lives in Salem but is at the hearing as a private citizen. He said his letters dated June 13 and January 29 outline what he has to say. Except for parcels 1, 2 and 7, he feels the owners have no right established for Measure 37. The claimant can't show that uses permitted as of 1973 would have been possible then. There is no diminishment in value and the Board cannot waive regulations. He also complimented Community Development and Legal Counsel on their work, as what is on the County website is light years away from what other counties are doing. No other testimony was offered. In rebuttal, Ross Day pointed out that at the time of acquisition, parcels 1, 2 and 7 could not have been developed as destination resorts. Deschutes County Code has a trap that whatever is stricter, the State or County, applies. The County might say that five-acre lots are okay but the State might say 80 acres. This has been filed with the State but there is no decision yet. Being no further testimony offered, the hearing was closed. BANEY: Move that a decision be scheduled for the July 30 business meeting agenda. LUKE: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 9. Before the Board was a Hearing and Consideration of Signature of Orders No. 2007-135,136,137,138 and 139, Measure 37 Claims (Claimant: Central Electric Cooperative). Mr. Pilliod said there are nineteen segments in a larger claim, and this address five. It is based on easements in each segment. Damage claimed is based on the per miles cost of infrastructure. The claimant wishes to upgrade lines to add for capacity into two other counties and some Deschutes County cities. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 16 of 23 Pages A representative of the applicant, clarified that the first claim, the Sisters-Jordan Road, is not part of the line. It is linked but is discreet. The Cline Falls to Black Butte line is the only one that is intended to be upgraded. In regard to the 1990 easements, common practice was to solicit easements from farmers. These were blanket easements that describe the entire parcels. Later on it was more common for owners to ask that easements be narrowed to a specific use. It is anticipated that the reconstruction will be done in the same configuration, and the poles will follow the same course. In regard to the width of the easements, this is subject to changes in circumstances but is usually referred to as "reasonable use". The most current agreement between his client and the property owners would apply. He said his client has no objection to the form of the Orders. No other testimony for the claimant was given. Michael Peterkin, representing the Cyrus family, said he will address why the claimant is not eligible for a Measure 37 claim at all. This has been brought up previously. In particular he will address Order 2007-135 and tax lot 500, but the issues are countywide. He said that this involves a utility company seeking improvements to service in an exclusive territory. Without electricity, irrigation companies can't pump water and there would be no farming except through gravity irrigation. Without electricity, there would be no hospitals or other entities. This is important because it shows that Central Electric Cooperative is not a private company; therefore, Measure 37 is not eligible to quasi-public entities such as CEC. He asked what other entity has a monopoly to provide this type of service. Cable companies and railroads are not eligible. This would be unconstitutional if they weren't a quasi-public entity. They have been given condemnation powers to take what they can't get otherwise. Farmers voluntarily gave easements without consideration, in a continuing pattern of rural electrification. Irrigation districts have been deemed to be quasi-public. CEC is a powerful, unregulated entity without appropriate oversight. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 17 of 23 Pages They want the County to waive the requirement for a conditional use permit to put up 80 foot towers. They want to try to bridge the 1990 easement section, with an anchor pole on the east side of the span. With a massive foundation, the width, for safety reasons, is significantly larger. The Board needs to decide if CEC is a private or quasi-public entity. Scare tactics are being used to push this through - Commissioner Luke said that he resents impugning their motives and didn't recall this being in the record. Every developer in the County gets easements from utility companies and don't get charged for it. Mr. Peterkin said that Commissioner Luke is misconstruing what he is saying. He is not criticizing CEC, but is challenging that this has been included in briefs before. There is an important issue before the Board; that is, whether CEC is a quasi-public entity. If it is, they need oversight and are not eligible under Measure 37. He added that Commissioner Luke is challenging how this is being presented, but he is just observing and bring to the Board's attention what CEC does and how they do it. They need to comply with County ordinances and State law. They did not receive a waiver but went ahead and put up lines. The same scrutiny should be given them as it would for anyone else. If there is a transfer to a corporation or an LLC, that establishes a new date. When there is a new easement, the same applies. CEC can do what they want within the easement. The Board needs to make a threshold decision. If CEC is a public benefit or a public use, there should not be a rubber stamp given on the dates of acquisition. On page 2 of the application it says the line was built in 1991 but a waiver date of 1971 is given. Five easements are dated 1990, so don't qualify. In some cases there are prior easements. But CEC is collecting more rights. Some were given in 1962, more were added in 1990. This should not be in the Order. The last four easements on the list were part of a prior waiver. The 1962 Cyrus easement was part of the Jordan Road line. One case is in the Court of Appeals and two others are in Circuit Court, so should not be in the Order. Discussion continued regarding easements and where the original poles were located and remain, and whether an easement is considered abandoned if the poles were removed. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 18 of 23 Pages Keith Cyrus said he wanted to address the issue of unrestricted easements. He said he knew where it was going to be, but they didn't do the kind of surveys they are now doing. In 1972 Black Butte Ranch was developing. The agreement was for the poles to be on the property line. Commissioner Baney asked about the property owners' rights; whether there is a limitation. Lines cannot go across a property without a pole, which obstructs in the air but not the ground. Mr. Pilliod said that it depends on the terms of the easement. It is a use of the property and burdens the property. There was no further testimony in opposition. In rebuttal the CEC representative said that Judge Tiktin has already ruled that CEC is a private company. There is no jurisdictional issue posed by a previous appeal and should not affect this claim. A decision is being made in court on a separate claim but this should not preclude the Board from making a decision. This is a different transmission line. Mr. Cyrus has been aware of the lines on the property for a long time. The blanket easement supports the clairtls in the matter. In 1990 the easement was moved at Mr. Cyrus' request to a more convenient location. There is no intention of using the old location but there could be a need to upgrade it someday. It would follow the configuration of the existing poles. CEC has easement rights for the entire line with the exception of one lot. The 1962 easements are simple and much broader; the 1990 easements are just overlays. In regard to proof of damages, this is based on land use restrictions that affect the claim. If the use is not permitted outright, a nonconforming use won't be allowed if there is an adverse impact. Property rights allow reasonable growth and upgrades. The substitution clause is a measure of damages. Oregon law has acknowledged this is a perfectly useful way to measure value. Another way is market value, which is hard to measure but has been briefed previously. In 2001 CEC hired a private company to obtain a new version of the easements. It was not the intent of CEC to relinquish transmission lines. The older easements are still there. A separate easement with a specific footprint does not mean the old easement was changed at all. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 19 of 23 Pages Mr. Pilliod stated that there are several concepts. To the extent that CEC wants to exercise property interests before zoning, they have to demonstrate the property interest and that it has been unbroken. If there is a blanket easement, they still may have chosen to confine the use to a particular corridor. This might have been at the property owners' request. A new document could contain a quitclaim of the previous interest. In that case, the Board has to decide if CEC's interest in the property was interrupted. In previous proceedings the Board concluded that CEC did not plan to interrupt its right. The staff report distinguishes easements from 1990 as being ineffective because CEC has to rely on zoning in 1990. The Board needs to decide if the underlying blanket easements still apply and whether there was a break in ownership. Commissioner Luke asked if they are identical and this was already passed, why it is being heard again. Mr. Pilliod stated that there was a bit of an overlap in the easements. They are taking the word of CEC that they are related. They appear to be components within a particular line. The one area of difference is that the segment running east and west with north and south jog of about 300 feet, as part of the Jordan Road proceeding previously had. Another portion may have been contained in but was not the subject of the previous action. Two of them seem to include east and west. At this time Chair Daly closed the hearing. Commissioner Baney asked for clarification on the quitclaim aspect and whether there are any restrictions on the easements. Mr. Pilliod replied that this would not change the date of acquisition. This is not really a matter for the Board in a Measure 37 claim; the County is not here to interpret contracts per se. The continuous property interest is there. Future use is addressed in the Order. Commissioner Luke noted that in a practical world, they don't lay a line unless there is a good reason for it. LUKE: Move this be continued to the October 1, 2007 business meeting. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 20 of 23 Pages 10. Before the Board was Consideration of Whether to Hear an Appeal of the Hearings Officer's Denial of a Tentative Plat Application for a Residential Subdivision off 5t" Street, Redmond (Applicant: Rencher). Dee Van Donselaar requested that the Board hear this appeal. Ms. Craghead said that the County is working with DLCD and needs the record to be open during this period, as it is the only way anyone can submit new information. If a modification is filed, it starts the clock over. They will already extend the time to October 29. They can't file the modification of application unless the appeal is open. LUKE: Move this be hearing de novo, subject to filing of a modified application. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. 11. Before the Board was Consideration of Signature of Documents No. 2007- 380, 383, 384 and 385, Improvement Agreements for the 150 Overnight Accommodations, Infrastructure and Roads, Golf Course and Clubhouse for the Tetherow Destination Resort (Includes Hearings Officer's Decisions on the Resort, Accommodations, Infrastructure, Golf Course and Clubhouse). Anthony Raguine gave an overview of the item. The applicant intends to bond $16 million for the overnight lodging and the balance of the project. Ms. Craghead said that the escrow instructions will change due to recording requirements. She also needs to review the bond form. Commissioner Luke asked if staff is satisfied the bond amounts are sufficient. Mr. Raguine stated that they should cover what they need to. Ms. Craghead noted that the improvement agreement for the overnight lodging is different than the others. Blocks will show where the lodging will be located, but allows for flexibility to move the different types of lodging within the plat. Commissioner Luke said that discussions have taken place regarding the bonding and building of units. Ms. Craghead replied that the Code has not been changed yet but the 2:1 ratio is still needed regardless. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 21 of 23 Pages She asked that this item be continued to the Wednesday, July 25 Board meeting. Before the Board was Consideration of Approval of the Consent Agenda. LUKE: Move approval of the consent agenda. BANEY: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes yes. Consent Agenda Items 12. Signature of Order No. 2007-130, Assigning the Name of SE Sunny Sage Way to an Unnamed Access Road 13. Signature of Order No. 2007-129, Assigning the Name of Warrin Road to an Unnamed Access Road 14. Signature of Order No. 134, Assigning the Name of Crawford Trail to an Unnamed Access Road 15. ADDITIONS TO THE AGENDA None were offered. Being no further items to come before the Board, Chair Daly adjourned the meeting at 4:15 p.m. Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 22 of 23 Pages DATED this 23rd Day of July 2007 for the Deschutes County Board of Commissioners. Michael Dennis R. Luke, Vice Chair ATTEST: Tammy a ommissi er 6"A-L &ktA-- Recording Secretary Attachments Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Agenda. Sign in card. Preliminary statement regarding flood plain zoning changes. Letter and documents submitted by Kuhns Letters submitted by Irene Hardwicke Olivieri and Lance J. Olivieri Testimony submitted regarding Big Falls Ranch Minutes of Board of Commissioners' Business Meeting Monday, July 23, 2007 Page 23 of 23 Pages PRELIMINARY STATEMENT FOR A LEGISLATIVE PUBLIC HEARINGS BEFORE THE DESCHUTES BOARD OF COUNTY COMMISSIONERS This is a public hearing on Ordinances 2007-019. The county file number is TA -07-02. This is to amend the Flood Plain Code including adding definitions to DCC Section 18.04.030 for "Flood plain development" and "Recreational vehicle", amending DCC Section 18.96 Flood Plain Zone, Section 18.116.095 Recreational vehicle as a temporary residence on an individual lot, and Section 18.108.190 Sunriver - Flood Plain Combining District. The Board takes notice of the record below and includes that record as part of the record before us. The Board will hear oral testimony, receive written testimony, and consider the testimony submitted at this hearing. The hearing is also being taped. The Board may make a decision on this matter today, continue the public hearing to a date certain, or leave the written record open for a specified period of time. The hearing will be conducted in the following order. The staff will give a report on this issue. We will then open the hearing to all present and ask people to present testimony at one of the tables or at the podium. You can also provide the Board with a copy of written testimony. Questions to and from the chair may be entertained at any time at the chair's discretion. Cross-examination of people testifying will not be allowed. However, if any person wishes ask a question of another person during that person's testimony, please direct your question to the chair after being recognized. The Chair is free to decide whether or not to ask such questions of the person testifying. Prior to the commencement of the hearing any party may challenge the qualifications of any Board for bias, prejudgment or personal interest. This challenge must be documented with specific reasons supported by facts. Should any Board member be challenged, the member may disqualify himself or herself, withdraw from the hearing or make a statement on the record of their capacity to hear and decide this issue. At this time, do any members of the planning commission need to set forth any information that may be perceived as bias, prejudgment, or personal interest? I will accept any challenges from the public now. (Hearing none, I will open the public hearing). STAFF REPORT S:\CDD\planning\Long Range\Text Amendments\2007\FloodPlain Text Amendment\Opening Statement Legislative Board.doc PLEASE NOTE: Due to the number of pages, Exhibits D, E and F were scanned separately prior to posting. IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: kftc' ~ s a ( (v(` GR"N+" Mailing Address: Jiffs VW L415~ Phone 3V - 50" E-mail Address: _ Date: -7 z 3 d-x Subject: i O - I`~ 4 William John Kuhn Martha Leigh -Kuhn PO Box5996 Bend, Oregon 97708-5996 Sunday 11 February 2007 Deschutes County Commissioner Dennis Luke 1300 NW Wall Street, Ste. 200 Bend, OR 97701-1960 Phone: (541) 389-3676 Phone (541) 388-6570 Fax (541) 385-3202 Regarding Wildlife Habitat Conservation and Management Program Dear Commissioner Luke, Ever since my wife and I bought our property twenty years ago on Sisemore Road in the Tumalo Winter Deer Range, we have been dedicated to making sure we live up to the basic principals of what it means to own this special land. When the Watts F-2 to EFU spot zone change happened several years ago across the road from us we heard that those three parcels were now allowed to apply for the Wildlife Habitat Conservation and Management Program offered by the State of Oregon we were disheartened to hear that we were not eligible. During the last three years we have investigated the WHCMP and have found it is a program that we think we should be able to qualify for. During the last year we asked numerous County officials how we could qualify for the WHCMP and each and every person we talked to said you are the person who can make it happen. It was ODF&W that told us that in Deschutes County only EFU zoned parcels are permitted in the program. Can you tell us why this is, or else tell us how we can convince you we should be allowed in the program? Thank you for your help in this matter, William John Kuhn Attachment - ODF&W letter from Larry Pecenka, Habitat Biologist C:\Docs\prop65575\ProtectForest-&-100ft\ODFW-WildlifeHabitatProgram\070211_ DearCommissionerLukeReWHCMP.doc page 1 02/11/2007 1:43:21 PM Page 1 of 1 William John Kuhn From: "William John Kuhn" <will iam@ri skfactor. com> To: "DesCo BoCC Luke Dennis" <dennis_luke@co.deschutes.or.us> Sent: Monday, February 12, 2007 6:56 PM Attach: 070211_ DearCommissionerLukeReWHCMP.pdf Subject: request for entry into WHCMP Dear Commissioner Luke, Ever since my wife and I bought our property twenty years ago on Sisemore Road in the Tumalo Winter Deer Range, we have been dedicated to making sure we live up to the basic principals of what it means to own this special land. When the Watts F-2 to EFU spot zone change happened several years ago across the road from us we heard that those three parcels were now allowed to apply for the Wildlife Habitat Conservation and Management Program offered by the State of Oregon we were disheartened to hear that we were not eligible. During the last three years we have investigated the WHCMP and have found it is a program that we think we should be able to qualify for. During the last year we asked numerous County officials how we could qualify for the WHCMP and each and every person we talked to said you are the person who can make it happen. It was ODF&W that told us that in Deschutes County only EFU zoned parcels are permitted in the program. Can you tell us why this is, or else tell us how we can convince you we should be allowed in the program? Thank you for your help in this matter, William John Kuhn Attachment - ODF&W letter from Larry Pecenka, Habitat Biologist William Kuhn INVEST/O - Registered Investment Advisors PO Box 5996 Bend, OR 97708-5996 541 389 3676 William@RiskFactor.com "First, they ignore you, Then they laugh at you. Then they fight you. Then you win." Mahatma Gandhi 04/17/2007 bJ) X w4 $,4 * # a (L) ;"4 0 CL 0 43 cd bio S-4 0 M p4 +AJ ' Q 04 4"" -q M 0 CD (10 - ) 4.0 C. 454 4.4 & W L 41k bJD . 164 ' CL CZ C rM4 Cd 0 11611 r---4 $4 E-4 0 wo C bf) 24 0 $-4 b4lD qV 02 cts c :3 (1) au A O C. E. "Win" Francis Gerald A. Martin FRANCIS & MARTIN, LLP Attorneys at Law 1199 NW Wail Street Bend, Oregon 97701-1934 LoPine Office (541) 536-3731 Facsimile (541).382-7068 (5411389-5010 November 2, 2001 Mark Reinecke Bryant, Lovlien & Jarvis, PC PO Box 1151 Bend, OR 97709 RE: Dowell / Kuhn Dispute Dear Mark: Sometime back the Dowells communicated that they would sell their property for 5350,000. The Kuhns feel that that is substantially over market value but would agree to the following proposal. The Dowells and the Kuhns would each hire an appraiser, and the two would select a third appraiser. All three would do independent appraisals, and the Dowells would agree to sell their property to the Kuhns for an average of the three appraisals. By average, I mean, add the three appraisals together and divide by three. This seems to be a fair way to proceed and it would stop the ongoing problems between the parties. truly yours, A. Mart GAM/cb Cc: William and Martha Kuhn JFN-23-01 18=08 FROM: 10.50322B4528 FACE 2/2 FAX DOCUM7 NT To; Jeff Klelum n RPM: JeffDowell Re; Bend propeaty an Sisemare Rd ME We have all but settled on an offer from a contzaetor that values our property/house at rougbLy twice what you've W iAy prolo seg. If your clients era interested in submitting a better offer, we would consider ro-opening uop iadons. Respectfully. Jeff wall AN q X40 )MARY L ~ :6X- WR Sx AT MW O,o~ ) t~ - ct 1• if . i '3c .r is ~i rj. Z/Z aova ATlomw 1T Uw Tats AwBA L&wp 1207 S .W. 3masr avaXms PORTLFD, 0naoarc 97204 1v"a0XX 9w) 2480005 PAX (303) 22a-4628 3aauary 17, Jeff a d Pat Dawdi 10705 NE W Avenue UYA 62924 M D%r V. r and Mtn,. Aovuelt.• ~ Pf#~ pct. 5 Dew I representBdue sad Marflyn SWtis ofUat)sMd, Uhio. Mr. MA Min. S OW$ art intent ted in purcha.Qg property is C= U21 Ofegon Mr. and Mrs,. Shahis are aware of dw smadt itity of the Rym property to tM west, and have bowmrs aware of the litisation. betw= you and your immediate ndgiots. They have viewed yo" pmpea'ty, and have requested me to make an offer for it.. Enciosed Pk= &A a form of Sale AVOW)em and R,ea*t fbr Earn„ t Money, rsuant to which Mr anti Mrs. Sboifss are prepared to purchase y= imp" for $220,MO Mr. and Mrs,. SWtis wide to =quire a property before spring, and wM need to pufte other options if this transacdan does not occur. Thuafwr, this is a °oo&-s#aot" offer, with an awepl axe date of 3anuM 23, 2001, pad a dosing date of 1wwaly 31, 200I. is pkM rev€ W this pmponda and discuss tt whb legal MOM ofyour ch00511$. 10 1-5 aviceptab,". please sign and return it to me pramptlj► at the fax number set out above, as well as by mwl in ;lte return envelope provided. I wW then hnnte haply obtain the sig natures Ofl++fr. Vin'; 14tis. Sboltis; forward a fulty exewW copy to you; and open an escrow at First Ame icart Tide b1surawe Company in Bend. Thank you for your courtesies and aolnsidelation- II.K:cAh iw. Brian and Marilyn SWtis (%a fax) Document Reproduces Poorly (Archived) 63SVBZZ5EOS -QI ,L ONA ug-ml to-7.7.-WNn JAN-17-01 17:53 FROM: ID:5032264529 PAGE 1/14 DATE; TO: JFYFR.EY L. KLEYN:NIAN Attorney at Lava' The Ambassador 1207 S.W. Sixth Avenue Pox9and, Oregon 97204 Telephone (503) 248-0808 Pax (503) 2284529 FAC81M1-LE -MESS-AQE January 17,, 2001 . TWE: 5:55PM Bill Kuhn @ 541-383-8883 Marbn and Brian Shohis @ 419-589-7676 FROM: Jeffrey L. Kleinman PAGES: -14- (Including Cover) Re: Purchase ofbowell property. Comments: Rere is a complete copy of-the package that has -now gone out FedEx. assistance. Ifyou do not receive all the pages clearly, please call (503) 248-0808. Thank you. UNLESS OWERWISE INDICATED, THE INFORMA77ON CONTA=D IN TD'IS FACSIMILE MESSAGE rS XNFORMATION PROTEC3"E0 BY THE ATTORNEY-CLIENT AND/OR A.TT0RNEY WORK PRODOCT PRIVILEGES. ITIS INTENDED ONLYFOR THE INDIVIDUAL NAMEDABOVE, AND THE PRIVILEGES ARENOT WAIVEDBYWR7VEOFTHISHAVING BEEN SENTBYFACSIII.. IFTRNRR4„DZR OFTIIIS FACSIMILE, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DEL, MR IT TO THE NAMED RECIPIRNaT, IS NOT THE MENDRD RECIPIENT, YOU ARE HEREBY NOTIFIED THAI' ANY DISSEMINATION, DISTRISV770N, OR .COPYING OF. TH2S COMMUNICATYON IS STRICTLY PROHIRD". IF YOUHAVE RECEIVED 2WZS C0MMVNIC4TIONI2VERROR PLEASE IMMEDIATELY NOTIFyMEBYTELEPHONEANDREXVRNTHEORIGINALMESSAGETO,h~',EATTREABOVEADDPESS VIA THE U.S. POSTAL SERVICE. YOU WILLBEPROMPTLY'REIMBVRSEDFORTHETELEPRONEAND POSTAGE EXPENSE TIlANK YOU. Document Reproduces Poorly (Archived) JAN-17-01 17:54 FROM: ID:5032264529 PAGE 2/14 JEFFREY L KLE AN Arrogazr ar Law THE AMBASSADOR 1207 S.W. Sr.%-, a Avzxrus PorrrtAxr). QHEGox 97204 'T'mpxoN-z (503) 24&0808 FAX.(5o3) 228.4529 January 17, 2001 Via Federal Express Jeff and Pat Dowell 10705 NE 3e Avenue Vancouver, WA 98686 Dear Mr. and Mrs. Dowell: I represent Brian and Marilyn Sholtis of Mansfield, Ohio. Mr. and Mrs: Sholtis are interested in purchasing property in Central. Oregon. Mr_ and Mrs. Sholtis are aware of the availability of the Ryan property to'the west, and have become aware of the litigation between you and your immediate i eigl rs. They have viewed your property, and have requested'me to make an offer for it. Enclosed lease find a form of Sale ,reement and lte ipt for Earnest mss: W. and Mrs. Sholtis wish to. acquire a property before spring; and will need to pursue other options if this transaction does not occur. Therefore, this is a "one-shot7 offer, with an acceptance date of January 23, 2001, and a closing date of January 31, 2001. Please review this proposal, and discuss it with legal counsel of your choosing. If it is. acceptable, please sign and return it to me promptly at the fax number set out above, as well as by mail in the return envelope provided. I will then immediately obtain the signatures of Mr. and Mrs. Sholtis; forward a fully executed copy to you; and open an escrow at First American Title Insurance Company in Bend. Thank you for your courtesies and consideration- JLK:cah cc: Brian and Marilyn Sholtis (via fax) Document Reproduces Poorly (Archived) JAN-17-01 17:54 FROM: ID:5032284529 PAGE 3/14 9-17-01 12.29 FROM- 1051&32264529 F^Grl 2/2 Sl,f>~D.ffO Mamsfidd, E)~a Jaauly I7, 2wi PRobumIIY NUS I prom= to pap to the Wft nfF"lrst Ameaian Tide bmum Compmy of Oregon, at Send, Oregon, the sam of One TUmmd Dog= MOW), as mtm m owy to die applied to the w price ugan tic do=& afthc salt and Pwcbzw Oft[t cettsia property be Md at 65595 S`s ie IiO4 Bead. OrgM ftm JeffDowefl aad Pat Dowdl to Br4m Sboft and mmlya Sba3ris. MARILYN SIB TLS JAN-17-01 17:55 FROM: ID:5032264529 PAGE 4/14 ULE .A CYREEWN`r AND RIvCEWT FOR EAh41NEST MONEY DATE: January , 2001 SELLER- JeffDowell and Pat Dowell 10705 NE 38'h Avenue Vancouver, WA 98686 BUYER Brian Sholtis and Marilyn Sholtis 1715 Lor-Kay Drive Mansfield, OH 44905-2990 Recital Seller desires to sell to Buyer and Buyer desires to purchase from Seller certain real property with all improvements located on it commonly known as 65595 Sisemore Road, Bend, Deschutes. Coxmty, OregoN having the following legal description (the "Property'): SEE 0ai]BIT A. Agreement Now, therefore, for valuable consideration, the parties agree as follows: 1. Sale and Purchase. Buyer agrees to purchase the Property from Seller and Seller agrees to sell the Property to Buyer for the sum of Two Hundred Twenty Thousand and 00/100 Dollars ($220,000) (the."Purchase Price"). 2. Earnest Money. Seller hereby acknowledges receipt ofthe sum of $1,000, evidenced by Buyer's promissory note in favor of First American Title Insurance Company of Oregon, payable on the Closing bate, as that tern is defined below. 3. Payment of Purchase Price. The Purchase Price shall be paid as follows: 3.1 At closing, the earnest money shall be credited to the Purchase Price. 3.2 At closing, Buyer shall pay the balance of the purchase price in cash- 4. Closing. Closing shall take place on or before January 31, 2001, (the "Closing Date"), at the offices of First Anerican Title Insurance Company of Oregon, 141 NW Greenwood, Bend, Oregon 47709. Each party shall pay one-half of the escrow fee and one-half of any transfer or documentary stamp taxes. PAGE 1- SALE AGREEMENT AND RECEIPT FOR EARNEST MONEY JAN-17-01 17:55 FROM: ID:5032264529 PAGE 5/14 5. Preiuuinary Title Repork. Attached hereto as Exhibit. B is a copy of a preliminary title report issued to Buyer with respect to the property. 6. Conditions 6.1 Buyer's obligation to purchase the Property is contingent on satisfaction of each of the following conditions: 6.1.1 Buyer's approval of its physical inspection of the Property, which may include, but shall not be limited to, structural and pest inspections. Buyer shall have five (5) days from Seller's acceptance to complete its physical inspection of the Property. . . 6.2 Buyer and its agents shalt have full access to the Property for the purpose of conducting Buyer's inspections. If Buyer is not satisfied, in its sole discretion, with the result of Buyer's inspections, Buyer may terminate this Agreement by written notice to Seller given at any time before the applicable date set forth above, in which event the earnest ;money shall be refunded to Buyer. IfBuyer fails to give any such notices of termination within the applicable time period, the respective condition will be deemed satisfied or waived. 7. Deed. On the Closing Date, Seller shall execute and deliver to Buyer a statutory warranty deed, conveying the Property to Buyer, free and clear of the trust deed in favor of Laura, R Alumbaugh set out as Exception 4 in Exhibit B, and free and clear of all other liens and encumbrances except for Exceptions 1 through 3 and 5 in Exlu'bit B, and the title company's usual printed exceptions. & Title Insurance. 'Within 15 days after closing, Seller shall furnish Buyer with an extended ALTA owner's policy of title insurance in the amount of the purchase price, standard form, insuring Buyer as the owner of the Property subject only to the usual printed exceptions and Exceptions 1 through 3 and 5 in Exhibit B. Seller shall pay the cost of a standard ALTA owner's policy, and Buyer shall pay the additional premium for an extended policy. 9. Fazes; Prorates. Reap property taxes for the current tax year, insurance premiums (if Buyer assumes the existing policy) and other usual items shall be prorated as of the Closing Date. 10. Possession. Buyer shall be entitled to possession immediately upon closing. 11. Property Included. All built-in appliances, floor coverings, window and door screens, storm doors and windows, irrigation, plumbing, ventilation, cooling and heating Mures and equipment, water heaters, attached electric light fixtures, window coverings, awnings, attached television antenna, planted shrubs, plants and trees, locks and keys, and all fixtures are part of the Property and shall be left on the property by Seller except: (none)- PAGE 2 - SALE AGREEMENT AND RECEIPT FOR EARNEST MONEY JAN-17-01 17:56 FROM: ID:5032294529 PAGE 6/14 12. Personal Property. The following personal property is included as part of the Property being sold to Buyer: (none). 13. SeIlWs Representations. Seller represents and warrants to Buyer as follows: (1) Seller has received no written notice of any Liens to be assessed against the Property. (2) Seller has received no written notice from any governmental agency of any violation of any statute, law, ordinance, or deed restriction, rule, or regulation with respect to the Property. (3) Seller is not a "foreign person" as that term is defined in lRC § 1445. On the Closing Dater Seiler will execute and deliver to Buyer a certification of nonforeign status on a form required by the IRS. (4) The Property has never been used for the storage or disposal of any hazardous material or waste. There are- no environmentally hazardous materials or wastes contained on or under the Property and the Property has not been identified by any governmental agency as a site upon which environmentally hazardous materials or wastes have been or may have been located or deposited. (5) The Property will remain in its current condition, with no material changes, prior to and through closing. All representations and warranties contained in this Agreement will survive closing and the conveyance of the Property to Buyer_ However, except as otherwise expressly set out in this Agreement, Buyer represents that it has accepted and executed this Agreement on the basis of its own examination and personal knowledge of the Property, that Seller and Seller's agents have made no representations, warranties, or other agreements concerning matters relating to the Property; that Seller and Seller's agents have made no agreement or promise to alter, repair, or improve the Property; and that Buyer takes the Property in the condition, known or unknown, existing at the time of this Agreement, "AS IS." 14. Binding Effect/Assignment Restricted. This Agreement is binding on and will inure to the benefit of Seller, Buyer, and their respective heirs, legal representatives, successors, and assigns. 1S. Remedies. TIME IS OF TIM ESSENCE RWARDING THIS AGREEMENT- If the conditions described in Section 6 above are satisfied or waived by Buyer and the transaction does not thereafter close, through no fault of Seller, before the close of business on the Closing Date, Buyer shall pay the earnest money deposit to Seller as liquidated damages, and this Agreement shall be of no further effect, it being the intention of the parties that Buyer may forfeit PAGE 3 - SALE AGREEMENT AND RECEIPT FOR EARNEST MON'E'Y' JAN-17-01 17:56 FROM: ID:50322B452S PAGE 7/14 the earnest money and be free of any further obligations under this Agreement. If Seller fails to deliver the deed described in Section 7 above on the Closing Date or otherwise fads to conmunmate the transaction, the tannest money will be refunded to Buyer, but acceptance by Buyer of the refund will not constitute a waiver of other remedies available to Buyer. 16. Attorney Fees. In the event action is instituted to enforce any term of this Agreement, the prevailing party shall recover from the losing party reasonable attorney fees incurred in such action as set by the trial court and, in the event of appeal, as set by the appellate courts. 17. Legal Representation; No Brokers. The parties acknowledge that this Agreement was prepared by the attorney for Buyer; that Seller leas been advised to consult with its own legal counsel; and that Seller has done so if so desired. The parties represent and warrant to one another that they have not employed the services of a broker in this transaction, and that if any broker should. assert a right to a commission herein, the party. who retained the services of such broker shall be responsible for the broker's commission, if any- 13. Notices. All notices and communications in connection with this Agreement shall be given in writing and shall be transmitted by certified or registered mail, return receipt requested, to the appropriate party at the address first set forth above. Any notice so transmitted shall be deemed effective on the date it is placed in the United States mail, postage prepaid. Either party may, by written notice, designate a different address for purposes of this Agreement. 19. Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the purchase and sale of the Property. This Agreement supersedes any and all prior negotiations, discussions, agreements, and understandings between the parties. This Agreement may not be modified or amended except by a written agreement executed by both parties. 20. Applicable Law; Jurisdiction and Venue. This Agreement shall be construed, applied, and enforced in accordance with the laws- of the state of Oregon. Exclusive jurisdiction and venue for any litigation with respect to this Agreement shall He in the courts of the state of Oregon. PAGE 4 - SALE AGREEMENT AND RECEIPT FOR EARNEST MONEY JAN-17-01 17:57 FROM: ID:5032284529 PAGE 6/14 21. Acceptance. This Agreement shall be null and void unless accented by Seller, by Seller's execution of it, and return to Buyer's attorney, on or before January 23, 2001. TM; PROPERTY DESCRHUM IN THIS INSTRUMENT MAY NOT BE WMUN A FIRE PROTECTION DISIMCT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.430 IN ALL ZONES. BEFORE SIGNING OR ACCKFJr]NG THIS INSTRUMENT, THE PERSON ACQUIRING FEE TTTLE TO THE PROPERTY SHOULD COCK WITH THE APPROPRIATE CITY OR COUNT Y PLANNING DEPAR'T'MENT TO VERIFY APPROVED USES AND (STENCE OF FIRE PROTEC'T'ION FOR STRUCTURES. SELLERS.. BUYERS: JEFF DOWELL PAT DOWELL Dated: January , 2001 BRIAN SHOLT S MARILYN SHOLTIS Dated: January - , 2001 PAGE 5 - SALE AGREEMENT AND RECEIPT FOR EARNEST MONEY JAN-17-01 17:57 FROM: page 3 sanuarv 15, 2001 Order NO,159256-TH SUPPLEMIENITAL #1 LWAAL 0105CRIVnOW ID:5032264529 PAGE 9/14 PANEL 1: A parcel Of land located in Section lo, TOMSHIP 16 SOUTH, RANCE 14 FAST OF TKE WILLAMETTE MERIDIAN. Deschutes county, Oregon, and desch0ed as follows: minning at the Northeast corner of sale! Section A thence North 83° 11' 47" West 306.60 feet t0 the WesterlY right of way Iine of sisemom Ca! urty Road and the true point of beginning; thence along said right of way line South 23' 56,02- , 68.67 feet; thence along said right of Way line On a 2331M foot: radius curve right 114.47 fEet: the long chord of Wrdch bear's Sosath 0" 54146' East, 113.35 feet; thence along said right of way fine on a 153.80 That radius curve right 28.46 feet; the Iona chord of Which bears south age 24' 32' West 28.47 fee4 thence North 890 11' 47" West, 94635 feet: thence North 000 AW 13'.. East 20000 feed; thence south 09014' 47' East, 901.63 feet to the TRUE POINT OF OMNNING.. PARCEL 2: An undivided one-half t112t itlterest in a parcel of land located in the N'Drtheast Quarter IN54/4) Of SeMon 'I8,' TOWNSHIP 16 SOUTH; RANGE 41 EAST of FIiE mill i.Amum Nimom, vesChutes County, Oregon which is did as follows: commencing at the Northeast Corner of said 58=n 19; thence South 510 27' 3T West 962.37 feet to the TRUE POINT OF BEGINNING; thence south 00° Or 23" West 58.72 feet, thence on a 103831 foot radius curve teft 394.78 feet; the Iong chord of which bears South 10946' 10" East 39242 feet; thence South 216 374V 5201 117.19 feet; thence on a 59Ek.80 foot radius curve r'ight:170.75 feet; the long chord of Which Dears South 13° 22' Sr East 170.17 feet, thence Worth 89° 10' 04" West: 14os.83 f6et; thence North 00' 4(r 19" East 1325.84 feet thence South tag' 1T 47' EWt 779.00 feet" thence. South co' 48' 13' blast 204.00 feet; thence south ' IT 4T Eag 498:1 feet; thence South 61 ° 42' 30' West 411.30 feet thence south 000 48' 13° West 210.11 feet thence South 890 11' 47' East 325.26 feet to the TRUE POINT OF BEGINNING. E C{ EPTING THEREFROM the southerly 40' of said PARCEL 2 for road right of way as deefleated irk Book 228 Page 245, Re=rded February 17,1976 uHlBITA.. JAN-17-01 17:SB FROM: ID=5032284529 PAGE 10/14 s~ A. a S fC Mrst American Title Inswance Company of Oregon zR9CRV Rr DfnwoN 141 AV. W. Gkom wd. P. 0 A= "J. Rand OR 97709 o c++~ orp.o P►mL-- 041}3824W M8arn- (541)3859932 EsctowX= pa)3W-5431 80 L%W. M11 omm OUR l YEM F"111i IM" Trlde Report YdrtllM 9S, 21301 ALTA oWrI S Stand. *W, to c0im munium s to come AL1'A.Own w W_ WV. Premium S Order. 'No.159266-TH ALTA LwWem sbmd. Cov. Premium S SUPPLEMENTAL 11 ALTA genders Rkt car. Premium S mdorsemerat, Premiurn S JEi-FREY L. (C MMAN, ATTORNEY. Est cost 5 1207 SW M AVENUE PORT L MD OR 97204 A Consolidated siatsment of 2H MOW end advances m cane =n wRh this order will be Pravlded at doting. We are prepared to Issue First American Title Insurance COMPany TWO Insuranc* Policy In uaial form an the following descn-bed proper-Y to wit, Sly ATTAQM LWAL ]DESCRIPTION NOTE property address is 895 Sisemore Road, Bend OR 97701. Showing the title on oe mber 28, 2000 at 8A0 A.M. Vested of Record Iii: JEFF DOWELL and PAT DOWELL, an estate In fee simple, as tenants in common. Subject to usual cond"rtions, stipulations, and l40Ti=` . Ta)m assezed under Saft No. 163466 (Parcel 1) Account No. _ 2-006 16 11 19 00 =00 21700.2007 TaxeS S92S_00, PAID -IN FULL. OOF Fire Patrol _ $15.00, PAID IN FULL NQTE Taxes asses ed under Sadai No. 131396 Parcel 3 Account No. 2-06 16 11 19 00 003M ''Taxes $656:97,:i~AID IN FULL ODF Fire Patrol $35.60, PAID IN FULL. 1. The rights of the pubile In and to that portion of the premises herein described lying within the limits of public roads and highways. 2. Covenants, conditions and restrictions, but deleting any covenant, condition or restrictlrm indicating a preference, limitation or discrimination based an race, color, religion, sex, handicap, familial sta=, or natlonal origin to the extent such covenants, condition$ or restrictions violate 42 Usc 3604t0. imposed by Instrument; Including tt'le terms and provisions tnereof, Recorded = July 22,1987 In 8nok 148 Page 9792 jAN-17-01 17:56 FROM: ID=5032264529 PAGE 11/14 Page 2 January 15, 2WI Order No. 159256-1H SUPPLEMWrAE #1 3. Art easement created by Instrument; Including the terms and provisions thereof, Dated October 20, 1293 ReeordW November 10, 1923 in $ACk 318 Page 2349 . in Favor of tint al Electric Cooperative, Inc., a Operative corporation For : . powerline easement a_ Trust Deed.. Including the terms and provislons thereof, glum to S=re an indebtedness of $9,950.00 Dated November 25, 1996 Recorded January 7,1987 in Book 434 Page 1694 . Grantor Jeffrey Y. Doweit and Patttl J: Dowell, husband and Wft TNstee Rrst American Title Co- Skbm office BenefiClarV Laura R. Alumbau9h (Affects` Parcel 1) S. Corwnt to Annex, including the terms and provisions thereof, Dated JuIV'S. 2000 Rmorded August 1s, =o in. Book 200 Page 32569 (Affects:. Parcel 1) 'lids mporc is for the exclusive use of the pat ties herein .shown and is prellminarlt to bte- issuance of a tjUe insurance policy and shall become Vold unless a poUcv is issued, and the hail premium P2K FM AMERICAN nTLE. INSURANCE COMPANY OF ORE=GON TEIZESA HANSEN Tme officer Bend ice email: teh2Mn@fi1Mt3 .tom TH:=W JAN-17-01 17:58 FROM: Page 3 januarV 15, 2019 Order No.159256-TH suMENTAL #I LWAL DMIZIPTION ID=5032284529 PAGE 12/14 PAMIM 1: a ibed QRANGE 11 EAST OF 1ME WILLAMETTE A. Parcel Of ed in section glg.'TCRNNSHIP 18 SOUTH, MERIDIAN. Deschutes ntv, oregon Beginning at the Northeast =ner of said-Section 49; thence North 690 '1'1' 47" west 306.60 feet to Vw westeM right of w3V line of sisemore county Road and the true point of beginning; thence along said right of VW tine SOUth 239 59 02' Eds'k. 66.57 feet; thence along sold right of way line on a 233.88 foot radius.curve right 114A7 fte4 the long Chord of which bemS South 09° 54' 46" EaSty 11333 fees; thence along said right of way One on a 15330 fact radius awe rlgtrt 28-16 feet; the tong chord of which beat's SOUth 09° 2ri' 32' West 28.0 feet; thence North 99" 11' 47" West, 94"S feet: thence North oU° 48' 15' East 21000 feet; therm MUM 899 11' 47' fit. 801.63 feet to the TRUE POINT OF BEGINNING- PARM 2- An undivided one-half t1t21 Interest: In a parcel of land locMd in the Northeast quarter WE%) Of Section 19, TOWN5MIP 16 SOUTH, RANGE 11 EAST OF 7iil: WILI.AM"M MERIDIAN, Oescnut m County, Oregon which is describd as follows: Commencing at the Northeast Comer of `sWd -section 19; thence south 51 ° 27' 37' West 36237 feet to the TRUE POINT OF BEGINNING; thence South 009 0T 23' West S8.72 fe.et: thence on a 1038.31 foot MOM Curve left 584.79 feet; tits long ctrord of whidr bear's South 10046' 14" gast 392.42 feet; thence South 21 ° 39' 4jr 117.1°9 fee4 thence an a SWAT foot radius curve rignt 170.76 fee; the lath. chord of which, bears South W. 22' 54" East V0.17. fM tyre North 89° 10' OW West 9405.83 feet; thWce North 00' 40` 19' East 1325.84 feet; thence South aa° 11'471 EWt 779.00 feet' thence, South Oa° 48' 13" West 204.00 feet; thence South 89° 11.47"- East 498.11 feet thence south 61 ° 423(r WOW 411.30 feet; thence South 000 48'1r- West 210.11 feet thence South 890 11' 4T Eft 325.26 fit to the TRUE POINT OF SIMINNING. 6=P"nNG THWOROM the souther y 40' Of said PARt~i.. 2 for road right of way as dedicated in Book 228 Page 245, recorded February 17, 976. 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W a:AWM*a ~ FSr- C022UM Document Reproduces Poorly (Archived) JAN-17-01 19=00 FROM= 1%400' 400 600 ffv IL e i • I fa 2`6 ID=5032294529 PAGE 14/14 Set Hap 16 it 18 17 300 somas 100 119 2Q 200 a Srt U4p 16 11 Document Reproduces Poorly (Archived) MIS F.l "iS PW=WASA COURT F.av By RPzrM1aWM W"CEC"AWOFoREGONTO ASSUST IN fAV[1W SAID Ffir.'IeSSES AND THE COMPANY AS S NO UABILI Y MR fMA=RACY Oft Fort I RS THATMA1raE<MSMOSb BYASk# W; MLS Client Detail Report(294) http://coar.rapmis.com/scripts/mgrqispi.dll?APPNAME=Centralorego... Client Detail with Addl Pics Report Street Address 65590 to 65590 sisemore Listings as of 01/30/07 at 1:12pm Sold 05/18/06 Listing # 2604208 65590 Sisemore Road Bend, OR 97701 Listing Price: $699,000 County: Deschutes Cross St: Couch Market See Mao Prop Type Land Prop Subtype(s) Lots 1 acre or more Area Bend/Tumalo/Alfalfa Section NW Price/Acre 52,954.55 Tax ID 16-11-20-100 Lot Sq Ft (approx) 574992 ((Assessor's Data)) Lot Acres (approx) 13.200 DOM 37 , Directions Hwy. 20 W to Couch Market Rd. 2.5 miles to end of pavement, 1 more mile, right onto Sisemore, 1.3 miles and driveway is on the rt. with a gate. Driveway is shared and property is the most North piece. Marketing Remark Spectacular views of Cascades, including Hood. Surrounded by BLM on 3 sides. Very private. One of the few left in Central Oregon with such ammenities. Wildlife Management plan in place which lowers taxes to $14.62 per year. Only 10 minutes from Bend. Selling Price 699,000 Selling Date 05/18/06 Pending Date 04/18/06 Original Price 699,000 SP%LP 100.00 General Information Elementary Sisters School Sr. High School Sisters Water Comments Needs well. Area of good wells. Sewer/Septic Cap and fill approved. Comment Zoning Wildlife Management Plan in place Comments Farm Deferral No Features View Cascade Mountain, Terrain Sewer/Septic Septic FS Approved Road Gravel Sign On Property No Jr. High School Sisters Irrigation No Electric Company CEC Utility Comments Electricity at road. HOA No Mfg. Housing No Allowed Existing Water None, See Remarks Community Adjoins Public Lands Terms Cash Presented By: Carol Osgood Coldwell Banker Morris R.E. r Primary: 541-383-4366 486 Sw Bluff Drive Secondary: 541-419-0843 Bend, OR 97702 Other: 541-382-4123 Fax : 541-385-3253 Featured properties may not be listed by the office/agent presenting this brochure Information has not been verified, is not guaranteed and is subject to change. Copyright ©2007 Rapattoni Corporation. All rights reserved. 1 of 1 01/30/2007 1:14 PM Deschutes County Government, Oregon - DIAL Search Results Standard http://www.co.deschutes.or.us/index.cfm?objectid=65FI I l0A-BDBD-... Enhancing the lives of citizens by delivering quality services in a cost-effective manner . Desch, ut s Country help I site map I location I contact us I En espanol LIVING HERE BUSINESS VISITING GOVERNMENT ESERVICES Living in Deschutes County: Comprehensive information for residents of Deschutes County. I You are here: Government)) Departments u Assessor's Office » DIAL Search Results Standard DISCLAIMER AND LIMITATION OF LIABILITY Information on the Deschutes County Computer is not guaranteed to be accurate and may contain errors and omissions. Deschutes County provides NO WARRANTY AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR ANY INFORMATION. Original records may differ from computer entries. If reliance upon computer record is intended, verification of information on source documents is required. User expressly acknowledges and agrees that the use of any information appearing on the Deschutes County Computer is at User's sole risk. Deschutes County shall not be liable for any direct, indirect, incidental, or consequential damages caused by mistakes, omissions, deletions, errors, defects, in any information, or any failure or delays in receiving information. The following property tax assessment data is updated nightly. Account: 131395 Map/TL: R 6-012 161107 00 01000 * * * Ownership Information ONLY MEARNS,JOHN C BEST,CYNTHIA SCHWASS,DANIEL E BROOKS,VIRGINIA L 18283 LOTHLORIEN WAY LAKE OSWEGO OR 97034 Prop C1s:400 MA:6 VA:17 NH 000 Vol-Page: 2006-26772 Asmt Zone:F CDD Zone:WA (WILDLIFE AREA COMBINING ZONE) :LM (LANDSCAPE MANAGEMENT COMBINING ZONE) :F2 (FOREST USE) Land Values Asmt type RURAL LOT Acres 35.22 *****Values shown below areas of the Assessment Date, January 1 of each year***** --------2006-------- --------2005-------- ---------2004-------- Total Taxable Total Taxable Total Taxable RMV A.V. RMV A.V. RMV A.V. LND: 240,220 60,220 170,370 58,470 143,170 56,770 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SALES: 1 2 3 4 5 Date 04-14-06 04-14-06 03-24-06 05-18-98 09-01-91 Sale $ 325000* 360000* 0 230000 0 Cndtn 07 07 06 07 14 Class 400 400 400 400 630 Inst # 2006-26772* 2006-26771* 2006-21941 1998-49421831991-2472188 OthPcl 164008 164008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sales Detail Information Vol Page 2006-26772 Sales Date 04/14/06 Adjusted Sales Price $325,000 Sales Code 07 INTEREST TRANSFERRED IS PARTIAL OR UNDIVIDED 1 of 5 07/19/2007 5:31 PM Enhancing the lives of citizens by delivering quality services in a cost-effective manner Ewa Aftgf*- A- _ aw-schuires County Go help I site map I location contact us I En espanol LIVING HERE BUSINESS VISITING GOVERNMENT ESERVICES Living in Deschutes County: Comprehensive information for residents of Deschutes County. 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Account: 164008 Map/TL: R 6-012 161107 00 01100 MEARNS,JOHN C BEST,CYNTHIA 1983 ROSEMARY PL COSTA MESA CA 92627 Site Address: 17300 BRANDYWINE RD BEND 97701 Prop C1s:469 MA:6 VA:17 NH 000 Vol-Page: 2006-26772 Asmt Zone:F CDD Zone:WA (WILDLIFE AREA COMBINING ZONE) :LM (LANDSCAPE MANAGEMENT COMBINING ZONE) :F2 (FOREST USE) Land Values Asmt type Acres RURAL LOT 4.50 SD *Total 4.50 Sales Detail Information Vol Page 2006-26772 Sales Date 04/14/06 Adjusted Sales Price $325,000 C:\Docs\prop65575\Dowell\m37claim\DIAL-164008-Search ResultsPgl.doc page 1 07/20/2007 10:27:26 AM C f6_ AA" Fat; °ruary 10, 19SZ Jeff Dowell 422,1 t,akeshcre Drive Hi 1 ton, New York 144CB D6ar Mr. Dovel:2 t Community [Development Department ,Admire;'Stratial 31dc. / 11SC? N At, Hrirraralt / Spared. Oregon 97701 ("5W'1388-6575 P1anrVail Davison dini ng Satcty Dims' (:r.V+'tWtrng C ~ KIAlth zV 3'1 The propertw, yt,? own ad;jacant to Sisemore Road, d scrLbed ass 16-11--1.S , tai: lot 100, weLs created by a + ondi L long l tae (CU-84-2 end Minor Partition iZ-79-22~ to two non-forest dG7 'zT i r:' 911tag on.. t o 43.1-acre total. parcel. Thane 1.EtTiC'l use Fipp rovalis eat-ablished the two parcels for lbji .lding niter, and consequently a new conditional USe PAr tit will not be r,_-qu i.red. Thu approvals did however, establish a maximum setback from Si.semore Road of 409 feet. T am sending you a copy of the of:1AC:J01 parLitluji dewing which eetabliesed thin r"tr coon. i,ran)t Clb °ll.i 11eks suomitr-Prl n T. iinClmi'.apa Man-.ligament Plana q ppliwation on your behalf which changed the locra'tioh of the cawell- ng aite to neat th.ie 400-foot restr otion. Tho intent of this restriction was :or prasserxativn and protract ion of wildl.ire in tr.e area. If you should have any quart ons, real trek to V:orrt.f.o° ate et !.1iS office. Sincerely, DESCMTES COUNTY FLAMING D'IVXSION Document Reproduces Poorly (Archived) Paul nllkstna t Assoctate. Planner q n CC W n n e~ Q . n- w F-- cr N w Z\ O F- ~=b e. ~ 4 ~ W z a ?N w N 3 J W a to U w Fes- W F- L~ U LLJ Q rL r •w~o co M ❑ ❑ p IN V N q r. ) W IL1 i 2 ~ (n ~•l CZ> ~ P'b'~ ~ ,mN o~ Q Va Q iI C 4 ~ \4 N,m \ b q " V~'2va NW~, ~M 4 M~ AQ~ ~ r0 v! h '1p ,r 4 e V ~ eM FCC. h ~ eh 0 ,o q 0° 30 h oN q h n 1$ 1 ~g Mh y 0 'I Ha rn~ Y it ~ a' ° C) w~ H" 2 'z Y L U in oa JL w w a W L U, J W 7 W w ui ~ lO ~ G r 3 U U a c c 3 mom ❑ o a Z 1 a~ 0 ~h ~b fit; oNM • ~ p~ evV d~ i es ~e 6M ~ haV j I I 1~4 I~ Q I~ ~ a m J oQw „ z oo a ~ odG aj 1 0 0 y 0 e~ a y 4 ~U h~ 0a 6/, e ; .._.._T~ Ql) 3 14, y ~a ^-1 Yl~ a ri. ct f Y a + STEPHEN N. TIKTIN, Presidina Judge MICHAEL C. SULLIVAN, Judoo EDWARD I.. PERKING, 40uVe July 31, 2002 Gerald Martin Attorney at Law 1199 NW Wall Street Bend, OR. 97701-1934 Mark Reinecke Altomey at Law 110 Box 1151 Bend, OR. 97709 Rc: Kp-bn ,NQoc well L/ceai.i.tl=14J ,..-yu11wCasa •V. V.I. = r V+:,,,7 vlJt Counsel* 111e Culluwing is the Court's decision in this case. rIRClI"1COURT OF nRrrnt ELEVENTH JUDICIAL DISTRICT LttJLf1U Ito t.i.It11V i T .1L?u E 4Lt CU'tLLHNi9 OF.NO, QREGQN 97701 ti~r4"r) 3`cI' -.Yi3v00 1Voica & TUM) PLAIN'TIFFS' SIXTH CLAIM (MANI)A,roRY INJUNC1'10N) ALTA J. BRADY. Judge A. MICHAEL ADLF€!. laW^A BARBARA A. HASUNG-ER, Judgm Defendants are ordered to enter into the required "home owners association or agreement assuriag the ukainletiancc ol'cutm;:ion puperty" as set 160rth in the conditions required with rt an .et to the otinditionsl use hermit. At a minimum, this agreement. shall provide that an y property taxes and any maintenance casts with regard to the common property be shared equally. Mr. Martin shall submit a judgment. Si ncerei;y> A. Michael Adler Circuit Court 3udgc AM /`irnb The above is an abbreviated and excerpted one page summary of the 31 July 2002 decision made by Judge Adler against the Dowells regarding the joint owners' agreement. As of July 2007 there still is no signed agreement as required by Judge Adler. C:\Docs\prop65575\Dowe11\020731_OnePageSummaryRegardingJointOwnersAgreement.doe page 1 07/19/2007 12:45:58 PM FRANCIS & MARTIN, LLP LQPine Office C. E. "Win" Francis Attorneys at Law (541) 536-3731 1199 NW Woli Street (0 Py Gerald A. Martin Bend. Oregon 97701-1934 Facsimile (541) 382-7068 (541 j 389-5010 December 12, 2001 i` Liz FanAer HAND-DELIVERED 25 N Y Minnesota Avenue 7 1 OR 97701 Re: Kuhn v. Dowell Deschutes County Circuit Court Case No. 01-CV-0233-MA Our File No. 01-037 Dear Liz: The purpose of this letter is to disclose a meeting, which I attended on August 9, 2000 with my clients Bill and Leigh Kuhn. They scheduled a meeting with Commissioner Dennis Luke and asked that I attend. We arrived at the County offices and after waiting a few minutes Commissioner Luke appeared accompanied by George Read. At that time, either George Read or Dennis Luke made the comment that they were not aware the Kuhns' attorney was going to be accompanying them. We proceeded to a conference room and George Read produced a diagram showing the Dowells' property and the Kuhns' property. The primary issue at that time was whether the Dowells' structure on their property was in violation of the 400-foot maximum setback from Sisemore Road. The diagram had a line on it from the side or corner of the Dowell home across the side of their property diagonally to Sisemore Road showing that by measuring in such a manner the structure was within the 400-foot setback. The Kuhns questioned why that measure was appropriate rather than measuring from the structure to the front of the Dowells' property where it abutted Sisemore Road. George Read stated that was a proper way to measure the 400-foot maximum setback and Commissioner Luke nodded his head arming that statement. At the time of that meeting I had had little or no prior contact with Commissioner Luke or George Read. I was surprised by what seemed to be an adversarial or confrontational approach taken by both Commissioner Luke and George Read. I had anticipated a meeting with some exchange and discussion regarding the appropriate measurement for the 400-foot maximum wv8oob8 40OZ/81/4o s o5ud oop•lesnoaW loT isonba-H RibOLO\w?t!loL£w\lPmOn\SLSS9do.id\soo(l\:;) IF r y-- oil +iy ea pp ~ k C _ t 4.j C co 0 m N t' t ~ ttj ~'~M1 4 v ~~I~y ~ ./.mar '~1~/"~N V s X a cc -0 Try Qltd r r .j ` v; LIZ FANCHER, ArroIRNEY December 5, 2001 LAURIE CRAGHEAD DESCHUTES COUNTY OFFICE OF LEGAL COUNSEL ADMINISTRATION BUILDING 1130 NW HARRIMAN AVENUE BEND, OREGON 97701 DEC ZO ~q-r~' U- \ 7 U Re: DR-01-5 (A-01-19), Jeffrey and Pat Dowell, Appeal of Declaratory Ruling I am writing to seek your assistance in preparing for next week's, December 12, 2001 hearing on the Dowell appeal. At the beginning of the hearing the Board of Commissioners will disclose any ex parte contacts, bias, prejudgment or personal interest. I believe it is likely that one or more of the Commissioners may make disclosures regarding these issues. I am writing to let you know of potential issues that may merit disclosure or disqualification so that you and the Board will have time to consider the issues prior to the hearing., All Board members may be affected by the fact that .the. County' has potential legal liability for granting building permits for the Dowell property, if Ms. Green's 'decision is affirmed. The County has issued permits for development on the Dowell property that do not comply with the F2 zone's 100' yard setback. Additionally, the County has either permitted or condoned the construction of the Dowell's house behind the 400' building line shown on the final plat of the partition that created the Dowell's lot. The actions could be the basis of a legal claim against the County. This fact may impact the ability of the Board to act as an impartial decision maker in this case. This is one of the reasons my clients asked that the Board not hear the appeal in the October 15, 2001 letter the Board refused, to consider when it granted discretionary review. Commissioner Luke has taken a position regarding setback requirements for this property. He has told the Kuhns that the side yard is a building area because it is in front of the 400' building line required for the property by the partition and PUD approval. Commissioner Luke measured this area across the side, rather than front yard of the Dowell property to create a building line that does not match the building line established on the final plat of the partition. Chair DeWolf, at the October 29, 2001 Commission meeting asked "[c]an't we just set a setback of 25 feet and save everybody a bunch of time and money?" This comment indicates that Chair DeWolf may have already decided to reverse Ms.. Green's decision. -2- December 5, 2001 Request for Information To assist me in determining whether I should be concerned about the above issues, I would ask that you provide me with copies of any of the following materials prior to December 12, 2001: 1. Copies of any tort claims notices, complaints or correspondence filed with Deschutes County by the Dowells, their agents or attorneys or others arising out of Deschutes County's permit decisions regarding the Dowells' property that is the subject property in the above-referenced appeal. 2. Copies of any letters, memoranda, notes or other written documents, other than documents prepared by William or Leigh Kuhn, that contain any claim or claims that allege or infer that the County or County employees or officials were in error in issuing permits for development on the Dowell's property. Copies of any documents prepared by or for consideration by any County Board, Legal Department, or Planning Division employee or official that are of record at Deschutes County that refer to William or Leigh Kuhn or to Jeffrey or Pat Dowell, excluding permit records that are available for public inspection through the Building or Planning Division of the Community Development Department. Record of Appeal It remains my position, as stated in my letter of October 15, 2001, that the Board should have declined to hear the Dowells' appeal. I am enclosing a copy of the October 15, 2001 letter and ask that it be included in the record of the appeal at this time. I believe that the County Board should have considered the letter at its October 29, 2001 work session despite the provisions of DCC 22.32.035(D). I believe that code provision is unenforceable as it grants the appellant, but not other parties, a voice in the determination of whether to hear an appeal. This denies my clients due process of law, a right protected by the 14`h Amendment of the US Constitution. County code provisions that are unconstitutional are not enforceable and should not have been applied. The decision whether to hear the appeal and the scope of review are matters that directly affect my client's legal position in this matter. Please include this letter and my October 15, 2001 letter in the record of DR-01-5/A-01-19. Sincerely, Liz F Enc. Cc: client file 644 NW BROADWAY STREET BEND, OREGON • 97701 PHONE: 541-385-3067 FAX: 541-385-3076 SW Corner 9461 NW Corner 901' Joint Property _906 800 The template for this map was the survey done by George Cowin on 12 July 2000 to locate Dowell _ . • ` structure. _ ?00 ° _DOWELL 4.3 .ACRES f 600 ,1 -1 A 300' Max Non-Buildable Area BLM Property /'-7 N from road 00 4.J ACRES 300,,, - Line s0u- s0o _ Existing 448' Structure - a- 400' Maximum Building line 400 \ 400' Maximum Building Line, Lille ezs n e2.s rt- $00' Max -9800 eq n from road X11' e 300' Line I 00 Po Meter Buildable Area ao, ~00- j . ~ ; rata I P.-ilne ea.-M g, ..led to 0-1, 'side 'I the Dowa11. to prevent. cUtbag of ! ya more tress along 8ieamors Road. I setb 4 ~ 00 Location of 300 & 400 foot restrictions 8 . iPg so- er ~ 351. e w E Cornet" ` • SW Corner 946' NW Corner 9011 Joint Property The template for this map was the survey done by George Colvin on 12 July 2000 to locate Dowell structure. '00 DOWELL 4.3 ACRES f~ 600 ! i f / j f\ ~ 900' Mad /j.(\ /~IJ ~}.+lJ 1 jy/ hom road 4.3 A CRES ddb' \ 400' Maximum Building Line ~i \1 iI Power line eeesmantgrentad to the Dowell'. to prevent cutuno of more tree. along Si-..- Road. 200 SE Corner 00' Line 400' Medimum Building U.. 62.5R 00from road L300' 300' M.. - Line 300 300' Max from road 40' .id. yard eeth-k rl- o . e d X35►5 BLM Property rc; ~j 0 1 .rA (0 0 •r4 4J rd 0 p z Q IQ) 0 040 a 4-) 04' X: 4-4 b-I 1 -rA 0 N 0 bi U) d 4J 00 In r-4 4J 44 (1) to XIO r-4 to p 0 . r 7 ~l 41 • 0 IV 1Y ~ ~ 1 r~./~ . fA ( RD 1r :1 41 '0 0 4J •M t U 4-) ;J Z.H ~ 4-) id 4J td U) . 0 ~ 0 V UO CD N r-4 Ic ~4 (d 4J 0 ~ .r.{ ~ (1) C: 0 0) -r4 r--4 ft rd .Q ~4 ~A ~A ~ to 0 041 e"'1 a ( 4J .o >4 U F 4-) a} ZP cd 4 ~ . J D4 ~ ~ c • U 4 0 4J rd : 4J r ~4 r ~j 0 0 nn U) 4- rV r 7 r-4 0 0 a) 124 4 UO of to t Q rri 4-) t-4 a) H 'a r-4 r-( r•~ ,lz: 0 ~ ~ Qa t1! ~ 0 rd 0 >1 a) p Q) 4J t P 0 1 r 7 3 4-) $4 r 4) r-4 - .r4 . r-I - ~j • r-4 (1) :1 0 VQ ~ ~ t4NI ra rn rd to 0 4a (n S 'V U nn4 ~1JJ 0 H H z F-I rW~ 04 fd ru a 0 4J r-4 u 0 a~ rn ~r ~ Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS 18.04.010. Title. 18.04.020. Purpose. 18.04.030. Definitions. 18.04.010. Title. DCC Title 18 shall be known as the Deschutes County Zoning Ordinance of 1979. (Ord. 91-020 § 1, 1991) 18.04.020. Purpose. A. The intent or purpose of DCC Title 18 is to promote the public health, safetypand; tcneral welfare anca to carry out the Deschutes County Comprehensive Plan, the provisions of ORS 215 and the Statewide Planning Goals adopted pursuant to ORS 197. DCC Title 18 is to establish zoning districts and regulations governing the development and use of land within portions of Deschutes County, Oregon; B. To provide regulations governing nonconforming uses and structures; to establish and provide for the collcctiom or to provide for the administration of DCC Title 18 and for the officials whose duty it shall be to enforce the provisions thereof, to provide enalje for the violations of DCC Title 18; and to~rovide for resolution of conflicts; C. To regulate the placement, height and bulk of buildings; and the placement and growth of vegetation within the County to ensure access to solar energy by reasonably regulating interests in property within the County, as authorized under ORS 215.044 and ORS 105.880 through 105.890, to promote and maximize the conservation of energy by preserving the option to utilize solar energy and to implement the Comprehensive Plan polices relating to solar energy; and D. To encourage the design of new buildings, structures and developments which use solar energy and protect future options to use solar energy by protecting solar access. (Ord. 91-020 § 1, 1991; Ord. 83-037 § 1, 1983) 18.04.030. Definitions. As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC 18.04.030. "Nonconforming structure or use" means a lawful existing structure or use at the time DCC Title 18 or any amendment thereof becomes effective which does not conform to the requirements of the zone in which it is located. Please ASK LEGAL COUNSEL or TOM ANDERSON these questions Does the Dowell structure conform to the MP-79-23,2 recorded plat neap and CU- 80-22 restrictions? Does the Dowell structure conform to the bowefls';own LM-9~ 9? Is the Dowell 'structu 'e a legal structure? C:\Docs\prop65575\Dowell\m37claim\070420 emailRequestReW7.doe page 3 04/21 I q8_ :1777+ w- S /GYO ~c~ 87-141,78 LAND USE RESTRICTIONS JOHN E. BARTON d MARK bURCHETT, b ng the owner's of property more particularly described in Exhibit A attached hereto, hereby declare said property to be subject to the following Conditions, Covenants and Restrictions. 1. Owners or family members may not acquire additional dogs other than the dog(s) they may own when they purchase the property. Ail dogs must be kept in such a way that they do not run loose in the area. Dogs allowed to "run" will disrupt deer habitat. 2. Owners or family members may not operate '.'dirt bikes" on the property. 3. All telephone and electric lines must be underground. 4. All fencing must be wood. Top rail may not be higher than 42". bottom rail may not be lower than 18". No barbed wire or straight wire may be used for fencing. 5. Owners or family members may not take "target" practice with rifle or hand gun on property. 6. This contract carries with it the sL.ongest encouragement to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges the owners to adjust their life style accordingly. Dated this day of _(1z, 1987. ti. e arton ar urc ett STATE OF OREGO'i, COUNTY--OF DESCHUTES )ss.. The foregoing instrument was acknowledged before me this VO day . of 1987 by JOHN E. BARTON. / /ZZ t, o y i~mllg/toruregon pU i; Llc My Com ssion Expires: 1i1:AT>✓ OF OREGON, COUNTY OF DESCHUTES )ss. The foregoing instrument was acknowledged before me this day of • „ 1937 by MARK DUR0ETT. o ary :F or regu5s 14v cnemission Expires: L/ -y DL1 t An.'~ U ki S Co P3 - -rms /_-WM Ar'JEg F,ab I -rAF &v4007- :I r rn 148 )-7q3 ter' (~8 J'J~3 EXHIBIT A C(A ITarcel of land located in the Northeast Quarter (NE 114 ) of Section Nineteen 19). TOWNSHIP SIXTEEN (16) SOUTH, RANGE ELEVEN (11), EAST OF THE WILLAMETTE MERIDIAN, Deschutes County, Oregon, which is described as follows: i Commencing at the Northeast corner of said Section 19; thence South 53.26'03" West 329.52 feet to the TRUE POINT OF BEGINNING; thence on a 153.80 foot radius curve right 77.43 feet, the long chord of which bears South 29.07'56" Nest 76.62 feet; thence South 43'33117"'Hest 117.24 feet; thence on a 194.18 foot radius curve right 170.54 fact, the long cbord of which bears South 68.42155" Vest 165.11 feet; thence North 86'07'27" Nest 68.83 feet; thence on a 138.02 foot radius curve left 225.84 feet, the long chord of which bears south 46.59158" Neer 201.48 feet; thence South 00'07123" Hest 58.72 feet; thence North 89°11'47" West 325.26 feet; thence North 00'48'13" East 210.11 feet; thence North 61.42130" East 411.30 feet; thence South 89'11'47" East 448.24 feet to the TRUE POINT OF BEGINNING. A parcel of land located in the Northeast Quarter (NE 1/4 ) of Section 19, TOWNSHIP SIXTEEN (16) SOUTH, RANGE ELEVEN (11) EAST OF THE WILLAMETTE MERIDIAN, Deschutes County. Oregon which to described an follows: Commel,ctng at the Northeast corner of said Section 19; thenca South 51.27'37" West 962,37 feet to the TRUE POINT OF BEGINNING; thence South 00°.07'23" West 58.72 feet; thence on a 1038.31 foot radius curvy left 394.79 feet, the long chord of which bears South 10'46110" East 392. ' feet; thence South 21°39'44" East 117.19 feet; thence on a 590.80 foot radius curve. right. 170.76 feet'. the long chord of which bears South 13'22'54" East 170.17 feet;. thence North 89'10104" West 1405.83 feet; thence North 00'40!I9" East 1325.84 feet; thence South 89'11'47" East 779.00 feet; thence South 00'48113" Wept :.P0..00 feet; thence South 89.1047" East 498.11 feet, thence South 61'42130" West 411.30 feet; thence South 00'48'13" West 210.11 feet; thence South 89*1114711I:ast 325.26 feet to the TRUE POINT OF BEGINNING. ,,.-A parcel of land located in Section 19, Township 16 South, Range-11 East of the Willamette Meridian, Deschutes County, Oregon, which is described as follows: Beginning-at the Northeast corner of said Section 19; thence North 89' 11' 47" West 306.60 feet to the Westerly right of way line of Sisemore County Road and the TRUE POINT OF BEGINNING; thence along said right of way line South 23' 56' 02" East 66.67 feet; thence along said right of way line on a 233 88 foot radius curve right 114.47 feet, the long chord of which bears South 09' 54' 46" East 113.33 feet; thence along said right of way line on a 153.80 foot radius curve right 28.46 feet, the long chord of which bears South 09' 24' 32" West 28.42 fret; thence North 89' 11' 47" West 946.35 feet; thence North 00° 48' 13" East 200.00 feet; thence South 89' 111 47" East 901..63 -feet to the TRUE POINT OF BEGINNING. STATE of oRE6ox . ) SS: COUNTY Of DESCHUTES 1 1• MARY SUE PENNOEIOW, COUNTY C1IRR AND RKDADU OF CONVITANCIS, IN AND FOR SAID COUNIT, DO NFRtq CTR1111 THAT THI WITHIN INSTRUMINI WAS ASWRDID THIS DAY: X37 JUL 22 hti 9" 37 sY. 1N5U`'~_ Dimly NO. 87-14M4 n1. Q Y DUCNUYIS COUNTY OFFICIAL RICORDS - RR~. Document Reproduces Poorly (Archived) 19900711 Dowells Document 1990-020037 Document Type: D - Deed Doc Subtype: CON - Contract Records http-//recordings.deselnutes.ora/Detail agr?INSTRUMENT_0=162666 Deschutes County Clerks Office Recording System Web Query ..3- -V wad St,: Suits 200, + Send, Oregon 9?. J1 * P+541.38M549 . F+34t,383,4424 ~.an Slut Details Fay„ Rttum to Restdts 1990-020037 rrrE: D. DEED V. Cain-ContractRecotds DATE: -1lj,1J F1)12:31MnI :11-1073 s»za0s MC I -Contract of Sale Yes Yes t'iew ?additional Idormation Mew DocMeM Emaat as T7 View Doc ment?maae as PDF i`. If _ AMU 55 ADDRESS 2 CITY' STATE UP P'if.27 TYPE ; LA9 N-A.YR 7 WR57 xkmf. ammo XllIE 56PE2~ ' DiF CI : \ MAR THA LE:G D1F..'CT V7i . itiL c-k-M `n:1 INDIRECT DOWELL IE_F 7\-DXFC7 DOW M Pi Ii ; . _ .........7 sCaDfi175t^~ PiRTT1PE Ill" AN'G SCT QQ T-UOT PIRCEI LEGiLDE5<RtMOX j LGI SLACK DIRECTION PART lb I> k9 Jt4T1WI "Ti http:f/f,ecot'dii)gs.deschtites.org/Arcl)iveData.asp?lNST-1D= 162666 Deschutes County Clerks Office Recording System Web Query :.eoo N- Wall St-'suds 200. • 6su4, OM20n 877d1 a P+541:3M6349 . Ft!54 .30.4424 t Additional Information 0j 13M* ~ Fw-1 Retum to Starch Retum to Rts+rks w w,... ..,w Lp sB W. NOTES LXD. . ! _L TFES "OILS.... T0(0?SICi CONTRACT P.ECORi7M 0L141P075 RECEPTION NUMBER C:\Docs\prop65575\Dowell\m37claim\900711_DesCoClerksRecords_213-1074_1990-020037.doc page 1 12/24/2006 1:12:38 PM 90-2003'7 Ig3Contr3ct l h' s c a.a~rle ac-c c s x C0rrEr_-6%3G. This agreement made and entered i this 3rd day of August 1989, by and between MARK BURCHETT,MARTHA LEIGH KUHN, WILLIAM JOHN KUHN, hereinafter "seller" and JEFF DORIELL and PATTI DOWELL, hereinafter "purchaser", witnesseth that: (I) "Seller" hereby agrees to sell to "purchaser" and "purchaser" agrees to purchase and pay for certain real property located in Deschutes County, Oregon and more particularly described as follows, to wit:an undivided one-half (1/2) interest in a parcel of land located in the Northeast Quarter (NE 1/4) of Section 19, T.16 S., R. 11 E., W.M., Deschutes County, Oregon which is described as follows: Commencing at the Northeast corner of said Section 19; thence South 510 27137" West 962.37 feet to the TRUE POINT OF BEGINNING; thence South 00007123" West 58.72 feet; thence on a 1038.31 foot radius curve left 394.79 feet, the long chord of which bears South 100461101' East 392.42 feet; thence South 21039144" East 117.19 feet; thence on a 590.80 foot radius curve right 170.76 feet; the long chord of which bears South 13022154" East 170.17 feet; thence North 8901010411 West 1405.83 feet; thence North 00040119" East 1325.84 feet; thence South 89011147" East 779.00 feet' thence South 00048113" West 200.00 feet; thence South 89011147" East 498.11 feet; thence South 61042130" West 411.30 feet; thence South 00048113" hest 210.11 feet; thence South 89011147" East 325.26 feet to the TRUE POINT OF BEGINNING. (2) A parcel of land located in Section 19, T.16 S., R.11 E., W.M.,Deschutes County, Oregon and described as follows: Beginning at the Northeast corner of said Section 19; thence N 89°11'47" W 306.60 feet to the Westerly right- of-way line of Sisemore County Road and the true point of beginning; thence along said right-of-way line S 23°56'02" E, 66.67 feet; tt-ence along said right- of-way line on a 233. 88 foot radius curve r ight 114.47 feet, the long chord of which bears S 09°54146" E, 113. 33 feet; thence along said r ight-of -way line on a 153.80 foot radius curve right 28.46 feet; the long chord of which bears S 09°241321t W 28.42 feet; thence N 89°11147" W, 946. 35 feet; thence N 00°48113" E, 200. 00 feet; thence S 89°11147" E, 901.63 feet to the TRUE POINT OF BEGINNING, containing 4.3 acres more or less net. II. The total purchase price of forty-two thousand dollars ($42,000) is to be paid by "purchaser" to "seller" in a manner more particularly described as follows: (1) "Purchaser" pays twenty-five thousand dollars ($25,000) upon acceptance of this agreement, (2) "Purchaser" pays remaining balance seventeen thousand dollars ($17,000) over 15 years at a fixed interest rate of 9.5% with option to recalculate mortgage whenever a lump sum payment of five th!?.ssand dollars ($5,000) or more is made,. There are no penalties for paying off mortgage early and early payment is encouraged by both parties. III. Conveyence of the real property by "seller" to the "purchaser" shall be made by warranty deed conveying marketable title in and to the subject property subject to all easements and incwnbrances of record upon final payment of subject property. IV. "Purchaser" shall be entitled to possession of said property upon acceptance of this agreement. V. All ad valorem real property taxes and all governmental or other assessments levied against said property for the current tax year shall be divided equally between "seller" and "purchaser" (July 1st was approximate date of verbal agreement). "Purchaser" shall pay recording fees for recording the deed. "Seller" shall pay the recording fees for release of deed-of trust. j C:\Docs\prop65575\Dowell\m37claim\900711_ DesCoClerksRecords_213-1074_1990-020037.doc page 2 12/24/2006 1:12:38 PM VI. "Purchaser" agrees to land use restrictions described as follows: 1. Owners or family members may not operate dirt bikes on the property. 2. All telephone and electric lines must be underground. 3. All fencing must be wood. Top rail may not be higher than 4211, bottom rail may not be lower that 181" . No barbed wire or straight wire may be used for fencing. 4. Owner or family members may not take target practice with rifle or handgun on property. 5. This contract carries with it the strongest encouragement to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges the owners to adjust their lifestyle accordingly. VII. This agreement is the entire, final and complete agreement of the parties to the sale and purchase of said property, and supersedes and replaces all prior existing written and oral agreements between both parties. VIII. "Purchaser" accepts said property in its present condition, as is, including latent defects, without any representations or warranties, expressed or implied. "Purchaser" agrees that "purchaser" shall ascertain, from sources other than "seller", the applicable zoning, building, housing and other regulatory ordinances and laws and that "purchaser" accepts said property with full awareness of these ordinances and laws as they may affect the present use or any intended future use of said property, and "seller" has made no representations with respect to such laws and ordinances. This instrument does not guarantee that any particular use may be made of the property described in this instrument. "Purchaser" should check with the appropriate county planning department to verify approved uses. C:\Docs\prop65575\Dowell\m37claim\900711_DesCoClerksRecords_213-1074_1990-020037.doc page 3 12/24/2006 1:12:38 PM . 6 Martha Leigh x i ("seller") Wil lam John ("seller") y'o 1A date 007 i/. _Y date 213 - lal6 Notary Public for the "seller" /V\",i Lm Mark Burchett ("seller") d to Notary Public for the "seller" . State of New-Ycrrk) Oreaj)L) County of 4WF ree) SS.: I sc kv+e S 1// on this / l l,day of L , 19 7U, before me personally appeared r`F bw. L2r S ~ mil„ k„~.C~ y1l i Il i .'v, f ~ h 'f~u Ci e 71 6 wo f t Pa 4) tT.. om 11 to me known and known to me to be the date 7/,, /(?d date individual(s) described in and who executed the within instrument, and he/they acknowledged to me that he/they executed the same. ,17~i1 t _ otary Public 1_14V 7-11-~Z) yr! ^f~~ tom' r Note: Please send all subsequent talc documents to: C:\Docs\prop65575\Dowell\m37claim\900711_ DesCoClerksRecords_213-1074_1990-020037.doc date > yd3t~k~i F, /Jeff Dowell Lakeshore Drive Hton NY 14468 page 4 12/24/2006 1:12:38 TIM Patti Dowell ("purchaser") . i - STATE OF OREGON ) SS. (:OUWV OF DMOUTES ) R p 1, MARY SUE PENNOLLOW, CoU CLEAR A" RECORDER Cl; CONIIETANC6, AND COUNTT, DO NEREBT aMFY THAI ED TIIK DAVE WITHIN NIS7'RI MOTT WAS RECORD S,3 Me. ~ I ,SLif PE, tit v 0, BY. DKM 129-0037 _ > - 7 7 DESCIIUTES coulm OFTICIAL RECORDS C:\Docs\prop65575\Dowell\m37claim\900711_ DesCoClerksRecords_213-1074_1990-020037.doc page 5 12/24/2006 1:12:38 PM Statement of Lance J. Olivieri Regarding M-37-06-145 April 23, 2007 The Tumalo Winter Deer Range is a unique, fragile environment.Relaxing the laws that the county, with the help of ODFW have put in place sets a dangerous precedent and will have lasting effects on this environmentally sensitive area. There are several facts that cast doubt on the validity of this Measure 37 claim and merit your attention and careful consideration. To mention the most obvious one, the 400' setback, was in place before the property owner purchased the property. In addition there is the issue of a clouded title. I sympathize with the commission who have the dauntless task of processing the onslaught of measure 37 claims that have been instigated by this tragedy of a law,. However, it seems to me that this is one Measure 37 Claim that is clearly unacceptable. 65 0 Sisemore Road Be d, Oregon 97701 541-385-9254 REGARDING M-37-06-145 April 23, 2007 My name is Irene Hardwicke Olivieri. I live at 65580 Sisemore , across the road from the property we are talking about. The area that we live in is the Tumalo Winter Deer Range and is critical wildlife habitat that has been set aside by this county for preservation. The laws that our county has made must be enforced. The 400' set back ordinance was in place before the owner of the property bought the land. The owner ignored this county ordinance when he built the structure. Now, over ten years later, the owner wants to break the ordinance yet again OR be paid $100,000. I cannot imagine how anyone here could agree to that or possibly accept this Measure 37 claim as viable. Please do the right thing for the environment, the wildlife and the county. Startle us with your powerful positive action of refusing this claim. .3o 5, 9 2 5 y CENTRAL OREGON LANDWATCH Protecting Central Oregon's natural environment and working for sustainable communities. 1629 NW F R E S N O A V E BEND, Oft 97 701 PHONE: (541) 550-7968 FAX: (541) 383-3470 RECEIVED BY: APR 13 2007 April 13, 2007 Deschutes County Commissioners 1300 NW Wall Street Bend, Oregon 97701 DELIVEREI~ Y: 1 lac"`-- Re: Deschutes County Measure 37 Claim M37-06-140 (Big Falls Ranch) Dear Commissioners: Pursuant to DCC 14.10.070 and OAR 125-145-0080, 1 am writing on behalf of Central Oregon LandWatcht and its members to urge the Board to reject the Measure 37 claim filed by by Big halls Ranch (hereinafter "(-laimant"). This claim seeks $5,085,760 or the right to subdivide and develop 1740 acres of prime farmland, important open space, wildlife habitat and river corridor in Deschutes County's EFU and Landscape Management zones according to rules in effect in 1988. This Measure 37 claim should be rejected for several reasons, including: 1. This is an incomplete application where it fails provide evidence of a threshold requirement for a Measure 37 claim: that there was a reduction in fair market value due to land use regulations. 2. The claimant has not proven that he could develop his property as sought in this Measure 37 claim under statutes and regulations in effect as of that date. 3. 't'here is no jurisdiction to hear this claim (for compensation or waiver) under Measure 37 for regulations which are exempt from Measure 37 as "[restricting or prohibiting activities for the protection of public health and safery." 4. This is not a valid claim under Measure 37 where it involves subdividing property rather than a "use" under Measure 37. Measure 37 is clear in providing relief only fora "use" of property, not for partitioning or subdividing property. 5. The claimant is not entitled to a blanket waiver in lieu of compensation. Any waiver to which he could be entitled is limited to the extent of any reduction in value. 1 Central Oregon LandWatch is a conservation organization whose members live in, or spend a substantial amount of time in and around Central Oregon, specifically Deschutes and Jefferson Counties. Generally they are concerned about the orderly and responsible development of the region so that the area remains attractive tourists and current residents and hence maintains the economic base and property values of the last several years. As residents they are also concerned about the adverse impacts to wildlife, water and air quality, and tax increases that could result from inappropriate development related to Measure 37 claims. LANDWATCH, PAGE 2 OF 7 6. The County does not have the jurisdiction or authority to waive state statutes or Oregon Administrative Rules. Any relief under this claim is not transferable as Measure 37 restricts any waiver of regulations to the "owner oft the properh~. THIS IS AN INCOMPLETE APPLICATION. This is an incomplete application where it fails to provide evidence of a threshold requirement for a Measure 37 claim: that there was a reduction in fair market value due to land use regulations. The evidence submitted with the claim does not meet the requirements and standards of Measure 37, the provisions of the Deschutes County Code, or the basic standard of "substantial evidence" on which any decision by a government must be based. A government cannot make a decision under Measure 37 to "compensate" or "waive" without having sufficient facts on which to make a decision. Even if a government is known to lack funds to pay off most Measure 37 claims, it still needs to know what exactly the tradeoff is before making a decision to compensate or waive and to be able to determine the extent of that waiver. NO REDUCTION IN VALUE HAS BEEN SHOWN. The claimant must prove a reduction in value under ORS 197.352(1) and (2) in order to qualify for relief under Measure 37 and the County must make findings based on substantial evidence on that issue. Otherwise, a Measure 37 claim is a non-starter. The County should not reach the decision of whether to pay compensation or grant a waiver of regulations until after there has been a determination of whether or not there is a reduction in value to substantiate a Measure 37 claim. Merely showing that there is a potential income from a preferred, but prohibited use of the property is not the same as showing that there has been a reduction in the fair market value of the property. A Measure 37 claim for "just compensation" is defined by Section 2 as "equal to a reduction in the fair market value of the affected property interest resulting from enactment... of the land use regulation." A reduction is a diminution from a price that the property once had. The fair market value is the price that willing well-informed buyers and sellers would agree upon. It includes the present value of any speculative future income, but is not equal to all potential future income precisely because that income is speculative. It may not happen, the market may change, or there may be unforeseen costs. See Andrew J. Plantinga, Mearurinoo Compensation ClnderMeasure 37: An Ecvnoml'Jt's Penpective 6-11 (2004), available at http://arec.oregonstate.edu/faculty2/meastirc37.pdf, (explaining how the market value - purchase price - of a property contains both the potential income stream and the speculation value at the outset.) Fortunately, Measure 37 does not require the computation of future income streams. Rather it requires a demonstration that there has been a reduction in the fair market value. It is retrospective, and asks whether the property once had a market value that was reduced by the enactment of a land use regulation. That is why compensation is equal to the difference between the fair market value of the property before the land use regulation was enacted and the fair market value after the land use regulation was enacted. That trnrly measures any loss due to the regulation. I CENTRAL OREGON LANDWATCH 1 629 NW FRESNO AVE. BEND, OR 97701 PHONE (541) 550-7968 FAX (541) 383-3470 LANDWATCH, PAGE 3 OF 7 What the prospective method of measuring valuation fails to take into consideration is what the Supreme Court has called the "average reciprocity of advantage".'- While each person is burdened somewhat by land use restriction, each person is also benefited by their neighbors compliance with land use restrictions. After all, the first three rules of real estate are location, location, location. Land use laws help create that location-value, and ensure that it will remain. If land use regulations arc written well, all the properties will increase in value morc than they would have. if no regulations were put in place. If one property is released from land use laws while all surrounding property remain restricted that one land owner reaps all the benefit of the location value created by their neighbors, but in turn is able to decrease that location-value for those neighbors. 't'his effect is most pronounced in rural areas where the location-value is primarily a result of the surrounding open space. When one land-owner develops they take advantage of the open space created by their neighbor's inability to develop. Their neighbors however have their open-space location-value degraded without accruing any personal benefit. The rigorous economic analysis of this concept is most coherently explained by William K. Jaeger's article "The Effects of LandUse Regulations on Properly Values," 36 F'NVTL. L. 105, 118 (2006) (attached). In that article Jaeger calls the increase a single property would see the "individual exemption v4dne". He further breaks down the value Of the individual exemption into two elements: Tbc Amenity Value and the Monopoly Value. The Amenity Value is the value of the open space. The Monopoly Value is the value of the fact that only one land owner may develop, thus creating a scarce commodity, - housing in the middle of a region that is largely open space. The article concludes: "[11here is no basis for using the value of an individual exemption as a proxy for, or even an indication of, the reduction in value caused by the enactment of a land-use regulation." The article further explains at page 105 the distinction between what the claimant has attempted to prove and what would truly be a Measure 37 reduction in value due to a regulation: "In the context of laws like Oregon's Measure 37, requiring that landowners be compensated if regulations reduce property values, the economic effects of land use regulations on property values have been widely misinterpreted because two very different economic concepts are being confused and used interchangeably. 'I,he first concept is `the effect of a land use regulation On property values' which measures the change in value when a regulation is added to many parcels. The second concept is `the effect of an individual exemption, or variance, to an existing land use regulation,' which measures the change in value when a regulation is removed from only one parcel. Pennjylvania Coal (.o. P. Mahon, 260 U.S. 393, 415 (1922) (Justice Holmes first articulates the concept behind land use zoning as the "average reciprocity of advantage"); Penn Central raWwt(itiar Co. v. <it o Nezv York, 438 US. 104 (1978) (Justice Brennan spoke of the "rough reciprocity of benefit" and asked if the state must corpensate a property owner for loss of value due to a state regulation, should property owners be given a "bill," or be forced to compensate the public when state regulations increase the value of their property?); Kc .r~ lone Brtuminou_- C:n(V/1 i'n r. 1)(, t3eraedi~t3; 480 t I.S. 470, 491 (1987) (Noting that "[wlhile each of us is burdened somewhat by such restrictions, we in turn benCft greatly by the restrictions that are placed on others"). CENTRAL OREGON LANDWATCH 1 629 NW FRESNO AVE. BEND, OR 97701 PHONE (541) 550-7968 FAX (541) 3833470 LANDWATCH. PAGE 4 OF 7 The effect of a land-use regulation on property values can be positive or negative, whereas removing a land-use regulation from one property can be expected to have a positive effect. Indeed, many land-use regulations actually increase property values by creating positive `amenity effects' and `scarcity effects.' As a result of these differences, a positive estimate for removing a land-use regulation cannot be interpreted as proof that the other concept was negative." The whole premise for a Measure 37 claim is that land use regulations restricting use of property caused a reduction in value of the property. The focus, then, for determining any reduction in value is the comparison of the property value before and after the enactment of the regulations. Deschutes County Code specifically and appropriately requires evidence of the "before and after" calculation. DCC 14.10.060 states that: B. The evidence of the reduction in fair market value shall be limited to the difference in the fair market value of the property before and after the application of the non- exempt County land use regulation(s). The evidence shall distinguish the effect or damage that may result to the property based upon laws or regulations that are exempt regulations or are not County regulations. DCC 14.10.060. In short this text requires two important elements First, it requires historical evidence of the value of the property before the regulation took effect, and evidence of the value of the property after the regulation took effect. If the "after value" is lower than the before value, the difference is a qualified reduction in value. Second, the Code requires a claimant to provide the County with an analysis of the reduction in value that is actually due to the County's regulations as distinguished from the state regulations, or from non- exempt regulations. This reasonable request should enable the County to actually weigh its options because it would allow the county to understand exactly what its liability is prior to making a decision. I Iere, the only analysis of a the reduction in fair market value provides only a comparison between the price today, and the price the ranch might be worth if it were subdivided. Nowhere in the analysis is MW mention of the value of the property prior to the regulation. Without even this basic point of comparison it is impossible to determine if the property has actually lost value. Further, it appears that the increase in value anticipated by an individual exemption is largely premised on the rural quality of the surrounding lands. In other words, this claim is specifically taking advantage of the location-value created by surrounding land use laws. To the extent that any potential future increase in value can be attributed to the existence of land use laws there simply is no rational basis on which to say land use laws have created a reduction in fair market value. As a result, the evidence submitted does not meet the basic requirements of "substantial evidence" on which a finding may be made that there has been a reduction in value. Without a reduction in value, Measure 37 simply does not apply, and this claim is invalid. CENTRAL OREGON LANDWATCH 1629 NW FRESNO AVE. BEND, OR 97701 PHONE (541) 550-7968 FAX (541) 383-3470 LANDWATCH, PAGE 5 OF 7 THERE IS NO EVIDENCE IN THE RECORD SHOWING THAT THE CLAIMANT COULD DO WHAT HE WISHES TO DO UNDER REGULATIONS AS OF THE DATE THE CLAIMANT ACQUIRED THE PROPERTY. The claimants land is currently zoned I?FU. There is no evidence in the record as to what the claimants land was zoned when it was acquired in 1988. It is likely that it was zoned vety similarly to what it is zoned today. For this reason alone this claim should be rejected as incomplete until such information is furnished. On Nlay 11, 1981 Deschutes County's Comprehensive Plan and land use regulations including the L;FU zoning was acknowledged by the Land Conservation and Development Commission for compliance with Goal 3. Although the plantung goals do not apply directly3 after acknowledgement, statutory requirements continue to apply. To the extent that state and local provisions are materially the same local provisions must be interpreted as consistent with the substance and the goals of the implementing rules.s 'The claimant has submitted no evidence that the proposed use, and the resulting assertion of loss of value would comply with the above laws. As a result it is not clear that even under the erroneous assumption that valuation is based on the prospective possibility of future income, that the proposed use would be allowed. f fence, even though the claimant has not submitted evidence of the actual zoning at the time of the acquisition, there is evidence that the proposed subdivision and development was not allowed at that time. THERE IS LITTLE EVIDENCE THAT THE PROPOSED DEVELOPMENT IS FEASIBLE UNDER EXISTING EXEMPT REGULATIONS. Measure 37 does not apply to land use regulations "Irlestricting or prohibiting activities For the protection of public health and safety." ORS 197.352(3)(13). Public health and safety regulations that could substantially reduce the scope of this proposed development would include septic regulations and road access. Although some evidence of sewer testing was submitted it does not appear to be complete, and does not show that the proposed sewage system will not interfere with wells of neighbors or on the properry. Additionally, besides noting that there is access to an existing road the claimant has provided no information about the capacity of the existing roads, or whether they are designed, or could be improved to carry the additional trips generated by the proposed new homes. I ~:VCIi under an erroneous prospective measurement of valuation, no claimant can assert a failure to increase in value based on the potential value of an infeasible project. 13yrd 1)..Stnn~er, 295 Or 311 (1983). Forrler P. Polk Cougy, 115 Or App 475 (1992); Ken( U P. 13enion County, 115 Or App 131 (1992). Id. 1 CENTRAL OREGON LANDWATCH 1629 NW FRESNO AVE. BEND, OR 97 701 PHONE (541) 550-7968 FAX (541) 383-3470 LANDWATCH, PAGE 6 OF 7 SUBDIVISION IS NOT A "USE" UNDER MEASURE 37. This Measure 37 claiun seeks the ability to partition or subdivide the subject property into smaller parcels than are currently allowed under the land division ordinances. The problem with this claim is that land division ordinances are not a restriction on "use" of property under Measure 37 that may be waived. ORS 197.352(8) allows a governing body to waive a land use regulation to allow the owner to use the property for a use that was permitted at the time the owner acquired the property. A "use" of land is the employment of land for a particular purpose (such as residential, commercial, farm or forest). The Oregon Court of Appeals has recognized that platted but undeveloped land is not regarded as a "use" in zoning law. Likewise, the process of subdividing land would not be a "use" of land. Partitioning and subdividing property adjusts lines on a map. Such exercises are not a "use" of land subject to ORS 197.352. The distinction between the "use" of land and the "division" of land is found throughout ORS 215. Further, the request to subdivide and sell the subsequent parcels without building on the lots is effectively a request to transfer the claimants waiver of laws to subsequent owners. The Attorney General of the State of Oregon has stated that "if the current owner of the real property conveys the property before a new use allowed by the public entity is established, then the entitlement to relief is lost." THE CLAIMANT IS NOT ENTITLED TO A WAIVER IN EXCESS OF THE COMPENSATION DUE. As an alternative to the County providing compensation, the claimant proposes that he receive a waiver to do a proposed development. Measure 37 does not allow such a blanket waiver that would result in a windfall to the claimant far exceeding any actual reduction in value caused by the land use regulations. Measure 37 is premised on "compensating" for any loss in value. Accordingly, any remedy - whether compensation or waiver - must be tied to that loss in value. Any waiver beyond compensation for that loss is a violation of simple justice and the equal protection of the laws. Once the reduction in value is made up for, the State no longer has a rational basis on which to grant additional relief from land use regulations to one party more than to any other. Additional waiver of laws would constitute a violation of Equal Protection under the U.S. Constitution, and the Equal Privileges and Immunities section of the Oregon Constitution. just because a county cannot afford to pay compensation does not mean that the claimant is entitled to a waiver of regulations that potentially would allow him to make many times the amount of his actual loss in value, especially when that increase in value is at the direct expense of the claimant's neighbors. THE COUNTY LACKS AUTHORITY TO WAIVE STATE LAW. Measure 37 is clear on its face that it allows a goverrunent to waive only "regulations." It does not provide for waiver of "statutes." Further, to the extent the County attempts to ,Naive regulations implementing the state statutes, such a waiver under Measure 37 would be unconstitutional as an inappropriate delegation of legislative authority. 6 Parks v Tillamook County, 11 Or App 177 (1972). e- CENTRAL OREGON LANDWATCH 1 629 NW FRESNO AVE. BEND, OR 97701 PHONE (541) 550-7968 FAX (541) 383-3470 LANDWATCH, PAGE 7 OF 7 MEASURE 37 RESTRICTS ANY WAIVER OF REGULATIONS TO "THE OWNER" OF THE PROPERTY. If a government grants a waiver under ORS 197.352, such waiver is limited to "the owner" and "use the property for a use permitted at the time the owner acquired the property." ORS 197.352(8). Accordingly, the regulatory relief authorized by the statute as an alternative to compensation is personal only to the owner. Any approval must be conditioned upon termination and extinction of the use upon transfer of ownership. CONCLUSION. Thank you for this opportunity to comment. Please inform me in writing of any further opportunities to comment and any decisions you make on this matter. Very truly yours Pam I ar Staff Attorney Central Oregon L.anclWatch cc: L.andWatch Board Attachments: 1. Additional property maps from the Deschutes County LAVA system showing - relationship to public lands - relationship to wildlife overlay zones - relationship to the Deschutes River Landscape Management zone - MRCS soil maps showing the property to be composed primarily of prime farmland. 2. William K. Jaeger, The E1ficls of I-and-Vse Regulations on Properly Valves, 36 FNVTL. L. 105, 117 (2006). (1?xplaining the distinction between a bona fide reduction in value, and the potential increase that might be expected from an individual exemption because of scarcity and amenity effects.) 3. Andrew J. Plantinga, Measuring Compensation Under Measure 37: An L',onoynist'.r Perspective (20( 1.1), available at http://arcc.aregonstate.edu/facultv2/measurc37.pdf, (explaining how, the market value purchase price -of a propcmT contains both the potential income stream and the speculation value at the outset.) ~t CENTRAL OREGON LANDWATCH 1629 NW FRESNO AVE. BEND, OR 97701 PHONE (541) 550-7968 FAx (541) 383-3470 N -j __r WD ~ II ~S X a Y j tf 00 L Cl~ C>- L r.~ dam? > ~ l 3 ~ i ^a n o~ O ~ ~M a cl k +y( t " ' 1 f r ?.d j ~ 67 y 11 ~G "K 9 !Y `i o- Z R 3G MM 4 womoo 0, t 01- ~60 J J c I C Identify Results L E LaF llette -ancly l am, U t!, pp8 cent °Iu. ~8:5 Prime farmland if irrigated D w' Internet THE EFFECTS OF LAND-USE REGULATIONS ON PROPERTY VALUES BY WILLIAM K. JAEGER* Land! use regulations can affect property values in a variety of complex ways In the context of laws like Oregon's Measure 37, requiring that landowners be compensated if regulations reduce property values, the economic effects of land use regulations on properly values have been widely misinterpreted because two very different economic concepts are being confused and used interchangeably. The first concept is the effect ofa land use regulation on property values" which measures the change in value when a regulation is added to many parcels. The second concept is "the effect of an individual exemption, or variance, to an existing land use regulation, " which measures the change in value when a regulation is removed from only one parcel The effect ofa land-use regulation on property values can be positive Or negative, whereas removing a land-use regulation from one property can be expected to have a positive effect. Indeed, many land- use regulations actually increase property values by creating positive "amenity effects "and scarcity effects. "As, a result of these differences, a positive estimate for removing a land-use regulation cannot be interpreted as proof that the other concept was negative. Despite this, a positive value for an individual exemption to a land-use regulation continues to be interpreted as proof that compensation is due under Oregon's Measure 37 Indeed, this mistaken interpretation may be partlyresponsible forpublic sentiment thatland-use regulations tend to reduce property values 1. INTRODUCTION 106 11. SCARCITY EFFECTS OF LAND-USF REGULATIONS 108 111. AMEwry EFFEc7S OF LAND-USE REGUTI ATIONS 112 IV. EMPIRICAL. EVIDENCE OF SCARCITY AND AMENITY EFFECTS 115 V. TIIE VALUE OF AN INDIVIDUAL EXFMPTION FROM LAND-USE RFGULATIONS 118 VI. DYNAMIC INTERACTIONS 122 © William K. Jaeger, 2006. Associate Professor of Agricultural and Resource Economics, Oregon State University, Corvallis, Oregon. Cormuents on an earlier draft from Emery Castle, Greg Perry, Andrew Plantinga, and Rob Zako are gratefully acknowledged. However, the author alone is responsible for the paper's contents. [105] IN ENURONIMENTAL LAW [Vol. 36:105 VII. WIIEN LAND-lJSl? IZI?GIfI.A'I'IONS REDUCE PROPERTY VALUES 124 VIII. SUMMARY AND CONCLUSIONS 126 IX. APPENDIX: POTENTIAL MARKET EFFECTS ob`LANi)-tISF. Rmui xnoNS 127 1. INTRODUCTION Land-use regulations can affect the market value of property in a variety of ways. Although some of the effects may be straightforward, in most cases they are complex and can easily be misunderstood or misinterpreted. In particular, it, has been assumed that land-use regulations invariably reduce property values when, in fact, they often have positive effects. The positive effect of a land-use regulation on property values can occur two ways. One way is an "amenity effect"-when land-use regulations protect, enhance, or create amenities or services that benefit property owners. Perhaps the most transparent example of this is the property tax: marry communities use property taxes to finance public services like police and fire protection, public schools, and infrastructure such as roads and utilities. These public services help these communities prosper, and make them an attractive place to live, which in turn raises property values.' Similar kinds of positive amenity effects arise with other kinds of land- use regulations such as regulations to protect environmental amenities, open space and farmland, or to control objectionable conditions such is noise, congestion, and pollution. Like a property tax, these land-use regulations impose costs or restrictions on landowners' actions, but they also generate beneficial effects. Indeed, the motivation behind most land-use regulations is to protect or enhance amenities that, contribute to a community's health, safety, and welfare. The other way that, land-use regulations can increase land values is through their "scarcity effects." By increasing the scarcity of land available for a particular use in a particular location, the prices for those lands are bid up in (IIe market.. For example, a limit on the land available for development in one location is likely to increase the price of developed and developable lands. These effects can be very large, and they can have spillover effects on land prices in other locations. Since the cause-and-effect connection between a land-use regulation in one location and heightened demand for lands in other locations is indirect, it is unlikely to be apparent to most, landowners. What landowners will ';Ve GORD)N C. 13.1)RK, LIFE, LIBERTY AND PROPERTY 55-86 (1990) (discussing the argument that services provided by property taxes increase the value of the real estate to which they are applied). z See Village of ISuclid, Ohio v. Ambler Realty Co., 272 U.S_ :4i5, 388 (1926) (justifying the classic use of zoning police power by stating, "it.lhere is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which most be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding, and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances"). Sce 13.IURK, supra note 1, at 92-93 (discussing the eflect of large-lot residential zoning on housing scarcity and housing costs). 20061 EFFECTS ON LAND PRICES 107 recognize, however, is the value of au individual exemption. The value of an individual exemption is defined here as the increase in value for an individual property, currently subject to a binding land-use regulation that would occur if it were given an exemption or waiver to the regulation. If a land-use regulation constrains landowners from actions or uses that would increase their land's value, then it follows that an exemption to that regulation will increase the property's value. Evidence that an individual exemption would increase a property's value has been widely interpreted as evidence-or even proof-that the land-use regulation had reduced the property's value in the first place. This is erroneous, however. Indeed, an exemption to a binding land-use regulation can be expected to increase a property's value even in cases where the regulation has raised property values. The purpose of this paper is to examine the direct and indirect ways that land-use regulations can, and do, increase property values as a result of their amenity and scarcity effects. A second purpose of the paper is to clearly distinguish between two very different economic concepts: the effect of a land-use regulation on property values, and the value of an Indlvldual exemption to a land-use regulation. It will be shown that the latter concept can be expected to be positive whether the former concept is positive or negative. These issues are important in the legal debates at the national level involving takings cases, and they are highly relevant to Oregon's Measure 37, passed by voters in November 2004.1 Measure 37 requires that when a land- use regulation "has the effect of reducing the fair market value of the property," then either a payment must be made to landowners equal to the reduction in the fair market value, or a waiver must be granted from the regulation.' Determining whether land-use regulations have had positive or negative effects on land values is, of course, a central question in this context. These same issues have arisen in the context of many federal regulatory takings cases.' And, while U.S. courts have long recognized that landowners frequently benefit from land-use regulations because of their "mutual reciprocity of advantage,"' other assessments, such as a 1999 Congressional Budget Office report, have failed to recognize or acknowledge the potential positive amenity and scarcity effects.' 4 Ballot Measure 37 (Or. 2004), ac,eiLible at http://www_sos.sLite.or.us/elections/nov22004/ guide/meas/m37_texthtml. 5 Al. § (1)-(2),(8). b See GEORGE SKOURAS, TAKINGS LAW AND THE SUPREME COURT: JUDICIAL OVERSIGHT OF THE REGULA'T'ORY STATE'S ACQUISITION, USE, AND CON,rROL OF PRIVATE PROPERTY 35 (1998) (noting that, in the seminal Supreme Court case i'illage ofEwli(f, Ohio v Ambler Realty Co., 272 U.S. 365 (1926), land values were reduced from $10,000 per acre to $2,500 per acre as result of the Village of Euclid using its residential zoning district. to preclude Ambler's desire to develop the land for industrial purposes). 7 See, e.g., Euclid, 272 U.S. at 394-95 (giving an example where apartment houses should he excluded from a single-family residential district so as to not "utterly destroy[]" the desirability of that district). 8 CONGRESSIONAL BUDGET OFFICE, REGULATORY TAKINGS AND PROPOSALS FOR CHANGE (Dec. 1998), available at hti.p://www.cbo.gov/ftpdocs/lOxx/doc1051/taldngs.pdf. For a criticism of the CBO paper, see C. Ford Runge, the C-'ongressional Budget Office's lleedulatory Takings and 108 ENVIRONMENTAL LA W [Vol. 36:105 As Oregon's state and local governments respond to claims under Measure 37, the way they interpret these relationships could have a profound effect, on how govermuents respond to claims, and how costly those responses are to the public.' In Oregon's case, the second concept,, the value of all individual exemption, has commonly been interpreted as being identical to, or a proxy for, the first concept. In the next two sections of the paper, the two ways in which land-use regulations may affect property values are discussed, starting with the scarcity effects in Part If, followed by the amenity effects in Part 111. Part IV presents empirical evidence that land-use regulations often raise property values. The distinction between the value of an individual exemption and the effect of'land--use regulations on property values is elaborated upon in Part V. Part VI discusses the dynamic and interconnected interactions between land-use regulations and other private and public actions. Part, VII describes the kinds of circumstances in which land-use regulations can lower property values. Concluding comments are presented in part VIII. II. SCARCITY EFFEUrS OF LAND-USE REGUINHONS The purpose of this section is to describe the scarcity effects of land- use regulations by presenting a simple framework for thinking about how land markets adjust to land-use regulations-a framework that can be. applied to different kinds of regulations for a range of market conditions. A standard approach in economics for evaluating the effect on market prices of a policy change is to consider the market, outcome with the change, and to compare it to the hypothetical alternative: what would have happened without, the policy change. This "with versus without" method considers the changes in supply and demand, and evaluates how those changes affect; prices in one or several markets. In the case of land-use regulations, the "with versus without" approach will require an analysis beyond the standard methods of property appraisal because appraisal methods are not designed or intended to estimate the scarcity effects caused by these kinds of market, shifts. Appraisers rely on observed market transactions involving similar or "comparable" properties, making adjustments for characteristics of the property that have been observed to increase or decrease the value of a property compared to average characteristics in the area (e.g., larger acreage, smaller house, view, etc.). But these methods implicitly assume that a property identical to other properties Chat sold for a price X will also be worth X, no matter how many such properties were to be put on the market. To clearly see how land-use regulations may affect market prices, consider a situation where a land-use regulation limits the kind of use allowed on specified lands. As a result of this, the supply of land available for the "allowed use" is likely to remain higher than it otherwise would have Proposab; for (7iange. One. 53ded,rud LThudivnle(l, EWn- L. AND PRAC., Fall 1999, at.5. 9 For additional discussion of the way compensation is defined in Measure: 37, see ANUREM PI ANI'INGA, MEASURING COMPENSATION UNDER MEASURE 37: AN ECONOMIST'S PEILSPECTIVE (Dec. 9, 2(01), available atlittp://,Lree.oregonsLtte.edu/faculty2/me~stir(,37.p(if. 2006] ETFECTS ONLAND PRICES 109 been without the regulation, and the supply of land available for the "disallowed use" is likely to be lower than it otherwise would have been without the regulation. With these supply shirts, land prices for one land use may rise following the enactment of the regulation, and land prices for alternative land uses may decline following the regulation's introduction. These market adjustments will give rise to a price differential, or wedge, between the land prices in the two land markets-one that will equal the negative price adjustment in one market plus the positive change in the other market. An example of these kinds of changes in land prices that might occur over time is illustrated in Figure 1. The effect of the land-use regulation on regulated lands is the decline in the solid line after the regulation takes effect; the differential, or wedge, between the prices for the regulated and unregulated lands is much larger than the reduction in price for the regulated lands (in this particular example), so that looking only at this wedge, or differential, could easily be misinterpreted (see appendix for a more detailed analysis of the market shifts involved). Price per acre (in "real" or inflation- adjusted dollars) Figure 1. Illustrating price changes with land-use regulations. Given the possibility of a price effect for both regulated and unregulated land due to the land-use regulation, it would be presumptuous to attribute the entire price differential between the two markets to a reduction in property values for the regulated lands. To use an analogy, if you tie your boat to a coastal pier and then, after a period of hours, notice that the level of the boat is now below the level of the pier, you are unlikely to ask: Did the pier move up or did the boat move down? You will immediately understand that piers don't move up, but that an outgoing tide could have easily caused the boat to fall. By contrast, in the case of a price difference between two different land markets, the answer to the analogous question is not obvious at all, even though we may instinctively jtnnp to one conclusion. Does the observed Time line: Regulation takes effect Today 110 ENVIRONJ[EN74L I-4 6V [Vol.36:105 price differential measure the price increase for the one land use, or does it measure the price decrease for the other land use? In order to answer this question, we need a way to measure and separate the effect of the regulation on land prices in at least one of these markets in order to distinguish it from the total price difference or the price effect in the other land market. Depending on the specific market conditions, the total price differential between the two markets may be mostly, or entirely, attributable to price adjustments in one of the two markets, or it may be divided between the two. Alternatively, of course, we can look only at the changes in the price of the affected land from before and after the introduction of the land-use regulation. This approach would avoid some of the ambiguity created when looking at the value of lands not subject to the land-use regulation, but it may not avoid the problem of other factors, related or unrelated to the land- use regulation, that may affect land values over a given period of time. Indeed, the effect of a land-use regulation on property values will extend beyond a given, narrowly-defined location or vicinity where equivalent parcels are "perfect substitutes." When the supply of land in one market is reduced relative to demand, the scarcity effects not only drive up prices in that market, but they also cause potential buyers to look at "imperfect substitutes" (for example, lots in other locations). The pent-up demand resulting from the land-use regulation will shift demand from one market or location to another market or location, which in turn may drive up prices in those markets. If these secondary markets are not subject to the same land-use regulation, then prices will rise in them. It' the secondary market. is subject to the land-use regulation, then landowners will view this pent-up demand as an opportunity for financial gain that is being blocked by the land-use regulation. Consider a city surrounded on all sides by farmlands, and where land- use regulations such as exclusive farm use JTU) or urban growth boundary-type (UGB) restrictions have prohibited development of properties outside the boundary as depicted in Figure 2. Suppose that in the absence of the regulation, residential development would have spread only in areas labeled A, B, C, and D (lying to the north and east of the city center), but not to the south, west, or more distant zones (parcels in areas labeled E through L). With the land-use regulation in effect, however, there is pent-up demand for developable lots, since development in areas A-D is not permitted. This unmet, demand will extend beyond areas A-D, and may manifest itself in offers for lots in any or all of the other labeled areas. In the absence of available parcels to the north and east of the city, developers' pent-up demand spills over into areas that they would not have been interested in were it not for the scarcity effects of the land-use regulation. As a result, farmers with lands in locations to the south and west of the city center will be aware that if their land could be developed, they could sell it for a price much higher than its value as farmland. The effect, of the land-use regulation has been to raise their (potential) property's value. 2006] EFFECTS ON LAND PRICES 111 ^ G u A B 1 , + I , +1 I 1 1 I , ' L ' F iO> I I I I C'cntcr ~ , I 1 ~ I 1 ~ I 1 r D N 1 1 I F. 1 1 K Urban growth 1 - boundary Figure 2. Potential shift in location of demand for developable lands with growth limits. Ironically, those landowners in areas subject to the land-use regulation may not, realize that the developer's interest in buying their land at a high price is a direct result of the very same land-use regulation that prohibits them from developing the land (or lands in any of the areas outside the UGB). In that sense it would be illusory to believe that if the land-use regulation were removed from a111ands the same price premium would be offered to this particular fanner. This hypothetical example illustrates the fallacy of confusing the value of an individual exemption with the reduction in value due to the land-use regulation. Indeed, the pattern of property values in this hypothetical case may be more like those represented in Figure 3, where the regulated lands experience no reduction in value, even though lands not subject to the regulation see an increase in value owing to the scarcity effects of the regulation. 112 ENVIRON, TIENYAL LA W [Vol. 36:105 Price per acre (in "real" or inflation-adjusted dollars) J J J Figure 3. A case where land-use regulations do not affect prices of regulated properties. The increase in value for unregulated lands (where development is not constrained or prohibited) may be large depending on the scale, or area, over which the land-use regulation is limiting. The more locations affected by the land-use regulation, the more the resulting pent-up demand will be reflected in the value of art individual exemption. III. AMENITY EFFECTS OF LAND-USE REGULATIONS Amenity effects are the second of the two ways that land-use regulations can have positive effects on land values. The most transparent example of amenity effects arises when landowners are required to pay a properly tax, with Lite resulting revenues used to provide public services such as police and fire protection, public schools, roads, and other utilities.'() Although property taxes are not usually thought of as land-use regulations, they fit the general profile-government actions that impose a cost on individual landowners, but at the same time give rise to shared benefits in the form of amenities and public services.11 Less transparent but equally valid examples of amenity effects include land-use regulations to protect environmental quality, open space, groundwater availability and quality, or to reduce noise, congestion, or pollution, as well as agricultural lands and lands with historical significance. 12 Regulations of this kind may require actions having positive 10 RJORK, sLIpra note 1, at 85-86. it Id. 12 Id. at 62 ("Zoning is the land-use control device in general use that extends, limits, and defines land use, that secures the conferral of valuable environmental amenities, and that, prevents the imposition of undesirable neighborhood effects."). Time line: Regulation takes effect Today 20061 EFFECTS ON LAND PI~ICE.S 113 effects, or limit actions having negative effects.10 Regulations of this kind in residential areas include building restrictions, environmental zoning, restrictions on paint color for houses, and even lawn mowing rules that are enforced in some conlmunities.14 Like property taxes, these kinds of regulations impose costs on individuals because they limit options, but they also confer shared benefits that may result in increased property values." Land-use regulations that confer amenity benefits are likely to give rise to higher property values like those depicted in Figure 4. So long as the costs of compliance are small relative to the collective benefits from the amenities, the net effect should be an increase in property values." This can occur with regulations such as environmental zoning in residential areas which limits the "footprint" of houses and other improvements to protect neighborhood aesthetics and environmental amenities.17 This characterization of amenity benefits in economic tennirlology is similar to the legal concept of "average reciprocity of advantage" that has been noted in federal takings cases. Reciprocity of advantage was identified by Justice Holmes in Pennsylvania Coal Co. v. Mahon as a justification for denying compensation for takings. 18 More recently the same concept has been explained as follows: "While each of us is burdened somewhat by such restrictions [on the uses individuals can make of their property], we, in turn, benefit greatly from the restrictions that are placed on others."" U.S. courts appear, in general, to bar compensation for takings claims when there exists some level of mutual benefits accruing to landowners.20 These rulings do not appear to consider whether these reciprocal benefits are large enough to equal or outweigh the costs of the regulations imposed on landowners .21 13 See Laurence Katz & Kenneth T. Rosen, I71e Interjurisdictional Eirects ot, Growth Collh-ols on HousirlgPrices, 30 J.L. & ECON. 149, 150 (1987) (discussing regulations concerning restrictions and regulations requiring improvements). 14 See, e.g., Portland Dev. Code § 29 (2005), available at ht1,p://www.portlandonline.com/ auditor/indexxfm?c=28193 (property maintenance regulations); Portland Dev. Code § 33430, available at htip://www.portlandonline.com/stiared/cfiMinage.cfm?id=53343 (environmental overlay zones). 15 See SKOURAS, supra note 6, at 32 (discussing the average reciprocity of advantage analysis used by the Supreme Court where the fact that. a regulation might also provide benefits to the burdened party is a factor in takings cases). 16 See Richard K Green, Land Use Regulation raid the Price of Housing in a Subiubart Wisconsin County, 8 J. HOUSING EcoN. 144, 144 (1999) (starting with premise that regulations increase price of housing). 17 See, e.g, Metro (Portland) Title 3 Model Ordinance, at 24, available athttp://www.metro- region.org/library_dou,Aand_use/modelord.pdf (setting a maximum footprint of 5,000 square feet of disturbed area for granting of a variance to allow building in a water quality resource area, defined as a vegetated corridor around a water resource protected to improve water quality and provide related environmental benefits). 18 260 U.S. 393, 415 (1922). 19 Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 (1987). 1 am grateful to Michael Rubin, Chief of the Rhode Island Attorney General's Environmental Unit., for drawing my attention to `reciprocity of advantage." 20 See RICHARD A. EPSTEIN, TAKINGS PRIVATE PROPERTY AND THE POWER OF Eb1INENT DOMAIN 103 (1985) (claiming courts tend to give lawmakers "free rein"). 21 j,I. 114 ENVIRONMENTAL IA W (Vol. 36:105 In these cases, however, an individual exemption from the land-use regulation allows one property owner to both avoid the compliance costs and benefit from the amenities. The result will likely be an (additional) increase in the value of the exempted property even though the land-use regulation had already raised property values (see the appendix for a more detailed analysis of these market adjustments). Price per acre (in "real' or inflation-adjusted dollars) Price of alternative land/use r Pllee of regulated land Time lute: Regulation takes effect Today Figure 4. Land price changes when land-use regulations have "neighborhood" effects. Environmental zoning is an example that is directly relevant to Oregon's Measure 37. These types of regulations are frequently motivated by recognition that environmental amenities, such as habitat protection, may not be adequately protected by the decisions of individual landowners.22 These regulations may also be motivated by a recognition that there can be positive neighborhood externalities when a given property is surrounded by other properties with trees, streams, open space, or other amenities that, make the neighborhood more attractive to residents.2" Even in cases where such amenities have successfully raised the average value of properties in a neighborhood, it will still be the case that, if a single property in this neighborhood were exempt from the environmental regulations, the property owner could increase the value of his property (for example, by being able to enlarge the "footprint" of the house, adding a garage, increasing the view or open space by cutting trees, or filling in wetlands or streambeds). In this case, however, the increase in value for a single property is dependent on the other nearby properties continuing to conform to the environmental zoning rules. 22 See id at 121-23 (discussing and criticizing wetlands protection measures, a form of environmental zoning). 23 See U.S. ENVTL. PROT. A(;ENCY, ENVIRONMENTAL BENEFITS OP' SMART GRowru, http://www.el)a gov/smart.growtI /topies/et).Iit.m (last visited Jan. 22, 2006) (listing environmental benefits of "smart. growth" regulations). 2006] EFF'ECT9 ON LAND PRICES 115 IV. EMPIRICAL EVIDENCE OF SCARCITY AND AMENITY EFFECTS Numerous studies have examined how land-use regulations affect, property values. Many of these have scrutinized the scarcity effects of land- use regulations aimed at controlling growth. For example, in a study of growth-control land-use regulations in the San Francisco Bay area, market values for houses were between 17% and 38% higher than in uncontrolled areas.L4 A study in Montgomery County, Maryland found that restrictive zoning significantly raised home prices over time." A study of data based on many U.S. metropolitan areas found evidence that moving from less stringent to more stringent regulations generated a premium of 130/c,-26% in housing rents and 32%-46% for property sales.21 A comprehensive study of the effects of land-use restrictions from the one million acre New Jersey Pinelands Protection Act and its "Comprehensive Management Plan" produced similar results.27 The study assessed the effect of management districts established for preservation, forest, agricultural, rural development, and regional growth .2' Each district was subject to a different set of restrictions. 2' The study concluded that when compared to unregulated control areas, prices in regulated districts exceeded those in unregulated districts by statistically significant amounts in five out of the six years where sales data were evaluated. SO Similar to the scarcity effects, studies have documented how environmental and other amenities can affect, property values. For example, in one study zoning restrictions on lakefront development were estimated to increase the average price of lakefront properties by 21.5%.31 A study of Milwaukee examined land-use regulations such as minimum lot sizes; permitting of mobile homes; minimum frontage setbacks; and requirements for minimum street widths, sidewalks, curbs, and gutters.32 The study found that mobile home prohibitions increased home prices by 7.1-8.5%, and that, requiring an additional 10-foot setback was associated with a price increase of 6.1-7.8%.33 A detailed study of environmental zoning in Portland, Oregon was conducted in 2005.34 The study is based on data from over 30,000 sales in 24 Katz, supra note 13, at 159. 2,5 Henry O. Pollakowski & Susan M. Wachter, The Effects of"Land-Use Consirunts on How rigPrices, 66 LAND ECON. 315, 323 (1990). 26 Stephen Malpezzi, Gregory H. Chun & Richard K. Green, New Place-to Place How4ng Price Indexes for US. Metropolitan Areas and Their Determinants. An Application of Urban Indicators, 26 REAL EST. ECON. 235, 262 (1998). 27 Patrick W. Beaton, The Impact of Kegiomd Land-Ilse Controls on Property Values: The Case ofthe New loiseyPinelands, 67 LAND EcON. 172, 175 (1991)_ 28 Id. 3 Id 30 Id at 191. 31 Morena Spalatro & Bill Provencher, All Analysis of Minimum Pl-ontige Zoning to Preselvc Lakefront Amenities, 77 LAND EcON. 469, 480 (2001). 32 Richard K. Green, Land Use Iiemld/1011 :lnd the P ritV 0I110LISirtgir! a SuLnrb ui tliscoizsin Com)ty, 8.I. HOUSING EcoN. 144, 149 (1999). Id at 156. ,34 Noelwah Netusil, The Effect of Environmental Zoning and Amenities on Property Calves: 116 ENVIRONMENTAL LA W [Vol. 36:105 different Paris of Portland, and takes into account the characteristics of the property, the characteristics of the house, the environmental zoning, and a range of variables related to property amenities on or near each properly.35 Using the statistical methods for a Redone pricing analysis, the study concludes that for Southwest Portland's environmental "c-zoning" areas, the zoning and related amenities, such as tree canopy, have a positive but, small net effect on the mean sale price of properties (+0.54%).:` In many cases amenity and scarcity effects will both be present, and may reinforce one another. For example, land-use regulations to protect, sensitive environmental areas such as wetlands may enhance environmental amenities and the appeal of an area, while at the same time limiting the supply of developed and developable parcels. Both these effects may cause land prices to rise. A number of studies have examined cases where amenity and scarcity effects are present. For example, land-use restrictions near Chesapeake Bay were studied to measure the effect of limits on the locations of residential and commercial development." The restrictions included channeling development to already developed areas (scarcity effects) as well as requiring new shorefront developments to conform to landscape requirements, setbacks, and surface restrictions (amenity effects).`` The analysis found that, in one county subject to the restrictions, shorefront houses increased by 46-62% compared to the control area.'`' Houses without water frontage increased by 14-27% compared to the control area." Aud finally, houses near, but not in, the designated critical area also increased compared to the control area by 13-21%. This latter result is consistent with the idea that land-use regulations can have positive effects in other, nearby markets. 41 Another study of the designated critical areas near Chesapeake Bay found that the value of vacant parcels in one county increased by 33% in 1984, by 53% in 1945, and by 39% in 1986 compared to the control areas.''' In other counties, the effects were also positive but less statistically significant.43 Designations such as historic district, regulations have also had positive effects on land values. A 1991 study of historic designations in Chicago neighborhoods found l.hat historic designation increased average housing values 29-38%.4` Once again, areas outside the regulated zones were also IWIL ad, Oregon, 81 LAND EcoN. 227, 228 (2005). s5 Id at 23134. 3G M. at 245. 37 George R. Parsons, The Effect of (-oa,;kll Land I/s~e Restrictions oil housing I'ritws. A Repeat.'Wc Analysis, 22J. ENv n,. ICON. & MGm'r. 25, 25 (1992). a8 M. at 28-29. 9 M. at 33. 40 Id 41 Id 1:' Patrick W_ Beaton & MarctLs Pollock, Economic Impact of Groalh Ahmijgome" t l olio ic_s Scurocrndulg the Chesapeake flag, 6s LAND EcoN. 434, 451 (1992)- 4:3 Id 44 Peter V. Schaeffer & Cecily A. Millerick, Yho Impact ofllistoric District Designation on 20061 EFFECTS ONLWD PRICES 117 affected posit,ively.45 The study found that in areas adjacent to the historic districts land, property values increased by 29%.11 Finally, in the case of non-metropolitan lands designated as farm use only, one might expect that the designation would raise the value of developed properties and vacant properties not designated as farm use only, but have no effect on farmland prices. The effect on farmlands, however, may be positive in some cases .17 Many farm community members believe that their local farm economies are interdependent and scale-dependent because their profitability requires a certain scale of farming activity in the area (number of total farms and total farm sales) in order to support local services such as input suppliers, processors, etc. Economies of scale like this could imply that a reduction in the number of farms and farm acreage in a given area will give rise to increased costs and a decline in profits, which would lower farmland prices.' Farm values can also be affected adversely when residential penetration creates conflicts over farm noise, dust, or smells.41 Indeed, a study of the effects of farm protection zoning on farmland prices in Wisconsin found that farmers were willing to pay more for land zoned for farm use only than for land with a less certain future.() These effects were capitalized into higher land prices." The premium was found to be highest on large parcels farthest from urban areas.51 This represents a particularly interesting example where the (potentially negative) scarcity effects on farm lands appear to be outweighed by the amenity benefits in farming areas. 63 Property 11alues An Empirical Study, 5 EcoN. DEv. Q. 301, 311 (1991). 45 Id 46 Icf 47 See GERRIT KNAPP & ARTI111B C. NelsoN, Ti it, REGULATED LANDSCAPE, Lt9ssONS ON STATF, LAND USE PLANNING FROM OREGON 142=14 (1992) (citing data showing that reduction of non- agricultural proximate uses removes speculative influences on farmland and more closely ties value to the land's underlying agricultural productivil,y). 4s Id at. 144. 49 See id at 126 -27 (discusing conflict behveen farmers and adjacent urban residents). 50 D.M. Henneberry & R.L. Barrows, Capitalization of Exclusive Agriculture Zoning into FaazrdandPriees, 66 LAND ECON. 249, 257 (1990)- 51 Id 52 Id 53 Sce C. Ford Runge et at, Goccrmnent Actions Affecting Land and Property Values An Empirical Review of 7akngs acrd Givings, LINCOLN lNSTPCUTE OF LAND POLICY 7-23 (1996) (reviewing empirical evidence on the effect of government action on property values). What their analysis demonstrates is that govermuent actions including land-use regulations, provisions of government services, and infrastructure, etc., can have positive or negative effects on land values. Their interpretation makes the point that consideration of compensation for regulatory takings (negative effects of government action on property values) should recognize the prevalence of regulatory "givings" (positive effects of government actions on property values). Id at 24-25. See also John M. Quigley & Lawry A. Rosenthal, Ric Effects of Lruid-I "w Regulation on the Piwi- ofHoasing: Whal Do We Know? What Can We Learn 8 CITYSCAPE 69 (2005), available at http:Uurbanpolicy.berkeley.edu/pdf/QIZ2005.pdf (surveying studies of the effect of land-use regulations on housing prices). 118 ENVIRONMENTAL LAW [Vol. 36:105 V. THE VALUE OF AN INDIVIDUAL EXENiM ION FROM LAND-USE VEGULNTIONS Given the analysis and empirical evidence presented above for amenity and scarcity effects due to land-use regulations, this section looks closely at. their relationship with the value of an individual exemption. Where arnenity or scarcity effects of a land-use regulation have raised land values, elimination of the land-use regulation on all properties can be expected to undo these changes, and land values would decline. But what, happens if the land-use regulation is removed from one property only, as is the case if a landowner is given an exemption to the land-use regulation? If the land-use regulation is binding, and constrains the landowner from taking preferred actions or favored land uses, then removing that constraint will make the landowner better off. If the landowner is acting to maximize the value of her land, then removing a binding constraint would presumably raise the value of the land. The landowner is able to avoid the costs associated with the land-use regulation (paying property taxes, conforming to building restrictions, etc.) while still enjoying the amenity or scarcity effects resulting from the continued compliance of all other landowners in the area. The implication of this is significant,. In cases where land-use regulations have raised land values, an individual exemption to that regulation can still be expected to increase the value of the exempted property. The same will be true for land-use regulations that reduce a property's value. Since an individual exemption will likely have a positive value for any binding land-use regulation whether it reduced land values or raised land values, there is no basis for using the vahle Of* and M(IMdual exemption as a proxy for, or even an indication of, the reduction in value caused by the enactment of a land-use regulation- Once again, the property tax example is the most transparent. An exemption from paying current and future property taxes will increase the value of a property.' The exemption reduces the cost to the landowner without: affecting the public services that have contributed to the property's high value. In the case of scarcity effects, the land-use regulation has restricted the supply and pushed up land prices for the disallowed use, and increased the supply of lands put to alternative uses. This creates a price differential between the land markets for these two uses, and, as a result, it creates an opportunity for financial gain as a result of the exemption to the restriction. In neither case, however, should one conclude that the positive value of an exemption to the land-use regulation is evidence that the regulation has, in fact, reduced the land's value. Indeed, in all cases where land-use regulations have actually increased land values, we can expect that an exemption to that regulation will raise the value of an individual parcel even more. A hypothetical example can be an instructive way to highlight certain economic interactions and relationships, and in some cases an exaggerated 5t See KNAPP & NEt-SON, supri note 47, at 127-28 (discussing the effects of tax reduction for farm Land, both positive and negative). 2006] EFFECTS ON LAND PRICES 119 and unrealistic example is the best way to illuminate those key concepts or ideas even if the particulars are unrealistic. The following section employs such an example. Suppose a large city like Portland (including its surrounding areas) introduced a land-use regulation 30 years ago that prohibited lands from having improvements used as restaurants, and that the only exceptions allowed were the 20 parcels occupied by restaurants at the time the regulation was implemented. Let's assume that with growth in population and income over a period of years, this hypothetical city grew to the point where it could easily support 200 restaurants, but only 20 were allowed. As you can imagine, the 20 existing restaurants would do a booming business, and would be able to charge very high prices and earn very large profits. As a result, the value of these 20 restaurant-eligible parcels would be very high. Let's suppose that each parcel would be worth $500,000 more than other similar commercial properties. If this situation actually existed, we might observe owners of regulated properties (those not, allowed to house restaurants) looking at the differences between the price of their land and the price of a restaurant parcel and interpreting the situation as follows: "This regulation that prohibits me from opening a restaurant, or from selling my parcel to someone for restaurant use, is costing me $500,000." This interpretation is also consistent with the idea that if they alone were given an exemption from the regulation, that exemption would be worth $500,000 because it would enable them to sell their parcel for $500,000 more than what it is currently worth. The problem with this interpretation, however, is that it is not a measure of the reduction in value caused by the land-use regulation; it is most likely entirely a result of the increase in value of the 20 properties not subject to the regulation. 'Prue, if one parcel were given an exemption to the regulation, the property would likely increase in value by about $500,000. But this observation measures a very different economic relationship than the "reduction in value" concept. To see this, let's carry this example further. Suppose this hypothetical city now passes a law like Oregon's Measure 37. Eligible landowners would likely file claims arguing that, because of this land-use regulation, the value of their property has been reduced by $500,000, and they would ask to be compensated in that amount. To verify this claim, the government would likely ask an appraiser to verify the estimate. The appraiser would look at the values of "comparables" (i.e., the other 20 restaurants) and, using standard appraisal methods, would indeed come to the conclusion that if the property in question (and only the property in question) were not controlled by the land-use regulation, the landowner could open a restaurant; on the property, increasing the value of their land by about $500,000. Once again, however, the value of an exemption is a very different economic concept than a measure of the reduction in value. Since the standard methods used by appraisers to value properties typically consider only incremental change (i.e., for a single property), the likely effects of large changes in restaurant-eligible properties on land prices 120 EWENON,IIENTAL 14 W [Vol. 36:105 would tend to be ignored. Yet if we were to ask what would happen to the land price differentials if the land-use regulation were removed entirely, we would come to a very different conclusion. In our hypothetical example, the premium price for a restaurant-eligible parcel is due entirely Co the scarcity created by the land-use regulation. Just look at other cities. In a city without this kind of regulation, what do we observe? In general, we find that restaurants compete for land with other uses, and they compete with each other for customers. As a result, restaurants succeed and fail, they come and go, but on average, they do not create a premium on land prices for their owners. Therefore, in this example, the answer to the question "What is the reduction in fair market value resulting from enactment or enforcement of the land-use regulation?" is, generally speaking, "none." This point is illustrated in Figure 5. Regulated lands (those prohibited from restaurant use) do not see any change in price after the enactment of the land-use regulation. Land not subject to the regulation, however, sees a large increase in price. The increase in price is, however, a direct result of the regulation, and the price difference would disappear if the land-use regulation was eliminated. Price per acre (in "real" or inflation-adjustcd dollars) Price of alternative (restaurant-eligible) land Pr ice ot regulated land Timeline: Regulation takes ellect Today Figure 5. Hypothetical example of land-use regulation restricting use as restaurant There may be exceptions to this conclusion. Some properties might have special attributes, making them much more valuable for restaurants than for other uses (view, prime location, etc). But., even the magnitude of this kind of "attribute premium" will be influenced significantly by the land- use regulation, and may also be an attribute that is desirable for other uses as well. Instead of observing what restaurant properties are worth in other cities without such regulations, suppose we asked specifically: What would have happened-hypothetically-if this particular land-use regulation had 20061 EFFECTS ONLAND PRICES 121 notbeen enacted or enforced? The difference in this approach is that it tries to consider the dynamic changes that, would have occurred in the past thirty years if the restaurant restrictions had not been put in place instead of making comparisons to other geographic areas. Without the regulation, we would expect that many restaurants would have been opened at various times over the past thirty years, in many different parts of the city. Some of these ventures would have been successful, while others would have failed. Restaurants would have competed with each other, and with alternative land-use options. The pattern of restaurant expansion that would have arisen would be difficult to predict or evaluate with any certainty. For example, restaurants might have been spread evenly throughout the city, or they might have become grouped in a "restaurant district" that attracted other complementary land uses (movie theaters, night clubs, etc.). The market for land would have evolved with land values that might be different than in the current situation, but it would be very difficult to discern what kinds of differences would have emerged, in which parts of town, and for which kinds of land uses. What we could be fairly certain of, however, is that in this alternative scenario without the land-use regulation, the ability to put a parcel of land to restaurant use would not cause the value of the parcel to rise by $500,000. Most likely, in a world with no such restaurant restriction, the value of the parcel would be the same as its current value. This hypothetical illustration highlights the following. The reduction in market value resulting from a land' use regulation is a fundamentally different concept than the value of an individual eYernption to the regulation. An exemption confers a special right to one individual landowner to take advantage of an opportunity that is unavailable to other property owners. Economic analysis suggests that the value of that exemption will often be the direct result of the denial of that same opportunity to others (currently and over a period of time). This issue is highly relevant to Oregon's Measure 37.'5 To the extent that Measure 37 defines compensation based on the "reduction in the fair market value resulting from enactment or enforcement of the land-use regulation,"" it would seem to be important to correctly identify and measure the dollar amount attributable to the reduction in value for the land subject to the regulation (the direct effect), as distinct from the increase in value for non-regulated lands (the indirect effect). In cases where restrictions on development, in multiple markets have shifted pent-up demand into areas that would otherwise not be of interest to developers, the land prices for the current use (farm and forest land) may be unaffected (negatively) by the land-use regulation. This is because the prices of these lands depend directly on their productivity, and on the value of what they produce in the marketplace.57 Since these markets tend to be `15 Measure 37 (Or_ 2004). 56 Id. § (2) 57 See James Ryan et al., Govenunent PapmenGs to Farmers Contribute to Rising Land Values, AGRic. OUTLOOK, June-July 2001, at 22, available athttp://usda.mannfib. comet 1. edu/repo rls/e.rssor/econovnics/ao-bb/2001/ao282.pdf (starting with the preswnption that earnings from 122 ENUROXIIEN'IAL L4 W [Vol. 36:105 national or even international, the amount of land allocated to farm and forest production in a local area is unlikely to have any effect on commodity prices or profits, and therefore these changes are unlikely to affect land prices. As a result., a regulation that, increases or maintains [tie supply of land for these uses (e.g., regulations such as exclusive faun use zoning) may not cause a reduction in their value because the value is unaffected by changes in the amount of ]arid put to these uses locally. This kind of situation may be similar to the one illustrated in the appendix, where the land-use regulation may have a large positive effect on the prices of land not restricted under the regulation, but little or no negative effect on the prices of lands that, are restricted to farin or forest uses. VI. DYNAMIC INTERAG PIONS The effects of land-use regulations on property values will, in many cases, occur gradually over a period of time. When urban growth boundaries are established, for example, they tend not to be binding initially on the land- use decisions being made, so they do not typically constrain the existing demands for different land uses.'H With rising population and urban expansion, however, these land-use regulations will begin to influence land prices and land uses. They may also influence other subsequent private and public land-use decisions, other public and private investments, other government policies such as taxation, and decisions about infrastructure.1m As the pattern of land uses and land prices evolves, there will be feedback effects on ]and markets, land-use decisions, government policy, and even on demographic changes and economic growth. Over a period of years, this complex, interdependent, pattern of changes that may occur with a given land-use regulation makes it very difficult, and perhaps impossible, to ascertain what would have happened withoutthat regulation. In particular, the direction of causality between land-use regulations and land prices is ambiguous in some cases. Land-use choices can have effects on land prices, neighborhood composition, housing quality, and government services. But these effects may also influence land-use choices. The causality can occur in either direction or in both directions simultaneously. Accounting for the sinruh,aneity of these various influences in order to isolate and identify the effect of land-use regulations on property values would require a sophisticated and complete dynamic model of all relevant influences. However, the kinds of data needed to measure each of the relevant factors are scarce, making such estimation very difficult.(30 'T'hese issues make it problernatic to estimate the effect of any given land-use regulation on land prices because the "with and without" scenario farming drive the value of agricultural land). 68 See KNAPP & NEUSON, s111)r71 note 47, at. 51-52 (noting that the original urban growth boundary for Portland was believed by Oregon's Land Conservation and Development Conuuission to be too large). 59 See id at d0 (stating that the objectives of Oregon's urban growth boundaries included efficient provision of public facilities and creation of a distinctly urban ambience). 60 Quigley & Rosenthal, stipri note 53, at 87. 2006] EFFECTS ON LAND PRICES 123 involves speculating about what would have occurred in the absence of the regulation, and how those alternative public and private actions would have affected property values. Roads and utilities that exist today might not have been built or improved; residential development might have spread in many directions, rather than primarily in one direction. As with our hypothetical example in which it was impossible to say where restaurants and other complementary businesses might have become concentrated in the absence of restrictions on restaurants, land-use regulations such as exclusive farm use (EFU) or urban growth boundaries (UGB) present huge obstacles for evaluating with any confidence what would have occurred over an extended period of time in the "without" scenario. The kinds of amenities that give rise to land-use regulations for environmental or aesthetic reasons can also affect, the dynamic pattern of land development involving urban expansion and other kinds of development. As discussed above, these dynamics are difficult to predict, and this can add to the difficulty of distinguishing between the direct costs of a restrictive land-use regulation and the indirect effects they may have by preserving amenities and related development opportunities. Let's look at one example intended to highlight the way in which land- use regulations can create an impression that highly profitable investment opportunities are being blocked by the regulation alone, when those development opportunities may, in fact, exist only because ofthe regulation. For example, an opportunity to build custom homes in a pastoral setting surrounded by beautiful farmland can be a tempting and potentially very profitable investment. But in some cases, the beautiful pastoral setting may still exist only because of the land-use regulation; without the regulation being in place for the past thirty years, other landowners would have already sold off parcels for other uses, or built, homes creating a patchwork of mixed use land and perhaps some not-so-profitable housing developments. It would be easy to miss the connection between a) a profitable investment opportunity that is blocked by a land-use regulation, and b) the fact that this profitable investment opportunity is presenting itself only because of this very same land-use regulation, which has kept others from taking advantage of this or similar opportunities for as along as the regulation has been in effect. The economic forces behind these kinds of examples are no different than the ones in the hypothetical example above that make the opportunity to open a restaurant overwhelmingly attractive precisely because a land-use regulation has kept others from doing so. In cases where a land-use regulation has kept the competition at bay for a long period of time, the value of an individual exemption to the land-use regulation may confer very large rewards tied directly to the fact that the regulation has held back all the other competing market forces for a period of many years. Given the dynamic interactions between land-use regulations and demographic, economic, and political changes, it is very difficult to sort out which changes may be directly attributable to land-use regulations and which are due to other related or independent, factors. Even detailed statistical studies have had mixed results trying to identify these relationships. One study of single-family home sales data in Vancouver 124 ENVIRONMENTAL LAW [Vol. 36:105 between 1957 and 1980 found evidence that zoning impacts were positive in some cases, negative in some cases, and insignificant in other cases.' When the focus is on housing prices, studies do suggest that existing housing prices are raised by land-use regulations.' The net, effect of density controls (lot sizes) on average land prices, however, may be indeterminate if restrictions on developable lands and density cause some land prices to rise and others to faII." VII. WHEN LAND-USA.' REGULATIONS REDUCE PROPERTY VALUES The focus of this essay has been on understanding the ways in which land-use regulations can raise property values. Land-use regulations can, however, reduce the value of properties affected, or they may reduce the value of some properties subject to the regulation, even if the effect is positive for some or most other properties affected.' For example, if a land- use regulation is too onerous, or if the amenities generated are not valued sufficiently by the residents, then the overall effect may be zero or negative .65 In the end, it is a "case-by-case" empirical question that would need to be evaluated using statistical analyses of housing values in a specific city and for regulations of specific kinds. One situation where a land-use regulation will indeed cause a reduction in property value is where a) the supply of land for an "allowed use" is higher than it would have been without the land-use regulation, and b) this additional supply causes a drop in the market price due to downward- sloping demand. This situation is illustrated in the appendix in Figure A2. For example, if a municipality zoned more land for commercial or industrial use than the demand would support,, the prices for these lands would decline, and might be lower than they would have been without, that particular zoning. A second situation where a land-use regulation will reduce property values is where the regulation was intended to generate neighborhood or local external effects, but the regulations were so onerous, or the positive external effects so small, that the net, effect was a reduction in property values in the zoned area`'" A third situation where a land-use regulation will reduce property values occurs when the external effects represent benefits to society generally, but do not tend to be reflected in the property values.`, These may ail .1.11. Mark & M.A. Goldberg, A Study of flue Impacts of Zoning on Ilousing Values Over Time, 20 J. UR[t_ ECON. 2577 271 (1986)- 62 Quigley & Rosenthal, supra note 53, at 85-86. fC3 Id at 8(i. ea See, e.g, Parsons, supra note 37, at 35 (listing winners and losers of restrictive land-use regulations abutting Chesapeake Bay). See, e.g, Schaeffer & Millerick, supre note H, at 311 (asserting that decreased property values in historic districts regulated through the establishment of the Chicago City Historic District prograun were the result of the regulatory hurdens of the program exceeding the benefits of a historic district designation). ss Id G7 See, eg., Parsons, supra note 37, at 35 (noting that property owners of undeveloped .md restricted land within the Chesapeake Bay Resource Conservation Area, such as owners of 2006] EFFECTS ON LAND PRICES 125 include designations for scenic or historical areas, wild and scenic rivers, etc. Even though the benefits to society generally may be very high, these benefits accrue to the general public rather than the landowners, so that the benefits to the landowners may not outweigh the costs of the restrictions. A fourth situation where land-use regulations impose costs on landowners is somewhat more difficult to evaluate in terms of market economics. These situations include ones where a family wishes to transfer land, such as farm or forest land, to family members for other kinds of uses like building homes for personal use. 6' These instances cannot be easily evaluated by looking at comparable sized parcels in appropriately zoned areas, since often the landowners have a personal attachment to the specific parcel and neighborhood where the family may have farmed for several generations. Examples of the desire on the part of farm families and woodlot owners to subdivide a portion of their land for use by family members have received great attention in the debate over Oregon's Measure 37.6 The personal values of particular individuals, however, cannot easily be translated into "fair market value" in cases involving unique circumstances such as a sentimental attachment to a particular piece of land. Indeed, it would seem difficult to apply the language from Oregon's Measure 37 (reduction in fair market value) to these kinds of situations. And finally, for current purposes, we want to distinguish between land- use regulations that reduce the value of land below its prior value, and the possibility that a land-use regulation may conflict with some future, unforeseen windfall gain or increase in value. Unforeseen economic changes can raise and lower the economic potential of lands for a variety of reasons. In some cases, these may be directly or indirectly related to the land-use regulations or complementary government actions. However, in other cases, lands may become more valuable for unforeseen reasons, and land-use regulations may begin to conflict with those uses long after enactment. The distinction between a land-use regulation that reduces a property's value (at the time it is enacted) versus one that, at some future date, is an impediment to a windfall gain that was unforeseen at the time of the regulation's enactment, represents an additional complication for interpreting laws like Oregon's Measure 37. If land-use regulations are subject to compensation for reductions in value due to unforeseen events or changes in market conditions, this would appear to put government in a perpetual position of liability for future changes in the economy. farms in the Resource Conservation Area, suffered lost property value). 68 See., ag, Jeff Barnard, OREGONIANS BEGIN FILING MEASURE 37 CLAIMS (Dec. 2, 2004), litipJ/www. kgw. corn/news-Iocal/storie-Agw_120204_life_ore_land_use_.115882£html (describing two of the first Measure 37 claimants to file, a woman near Portland who wanted to subdivide land to give to her children, and a couple in sisters, Oregon, who wanted to build a retirement home on a 20-acre farm parcel). f*') Sce, c.g, Pete hunt, Ail Gr,'211,111101110F Olause WILLAMETTE Wk., Feb. 16. 2005, avdInNo at httpJ/www.wweek.com/story.php?story=6010 (highlighting the role of 92-year old Multnomah County, Oregon resident and property owner Dorothy English as the poster child of the successful ballot measure). 126 ENVIRONMENTAL I-A W [Vol. 36:105 VI11. SUMMARY AN 1) CONCLUSIONS The analysis presented here spells out how laud-use regulations can, and often do, have positive effects on land values in settings where amenity effects, scarcity effects, or both kinds of effects are at work. There is also abundant, empirical evidence that documents how land-use regulations have raised rather than lowered property values in many cases.70 In either case-whether a land-use regulation reduces or increases property values-an individual exemption from a binding land-use regulation can be expected to have a positive effect on a property's value. Logically, if a land-use regulation imposes a cost on landowners, eliminating that cost is likely to make that particular property more valuable, so long as the benefits associated with the land-use regulation are unaffected. The implication of this result, is highly significant. Evidence that the value of an individual exemption to a land-use regulation is positive does not, by itself, represent proof or unequivocal evidence that the enactment of the land-use regulation reduced the property's value. As a result,, claims that a land-use regulation has reduced a property's value must be substantiated with other kinds of evidence and analyses. In particular, an appraiser's estimate that a property's value would rise if a given land-use regulation were removed tells us nothing definitive about whether the land-use regulation has actually reduced the property's value. Indeed, given the dynamic and complex interconnections between land- use regulations and their amenity and scarcity effects, as well as other related govenunent and private actions and responses, it is highly problematic to disentangle the separate effects of a particular land-use regulation from the effects of other actions and responses that may be independent or related to any given land-use regulation. Proof that a land- use regulation reduced a property's value would appear to face insurmountable obstacles in many cases. Decisions about zoning and urban growth boundaries are interdependent with decisions about, funding for roads and other infrastructure development, and all of these will affect the value (and potential value) of developed and undeveloped properties within and outside each boundary and zone. Ascertaining the effect of a particular land-use regulation would appear to be particularly problematic if we recognize that:, had the land-use regulation not, be enacted, other public and private decisions would have had different outcomes, and these in [urn could have altered the current opportunities and limitations in ways that are impossible to know. Still, it is completely understandable that landowners limited by a land- use regulation view the value of being free of that regulation in terms of the value of an exemption. That view, with the potentially large financial gains that would appear to result, is no doubt tempting to landowners, and has led to anger over land-use restrictions. The recognition, however, that in many cases these potentially large financial gains are actually caused by the land- use regulation, is not, well understood by the general public, in part, because 717 See, -9.., Beaton, supra note 27, at 191 (Finding that regulated areas in the New Jersey Yinelands outstripped unregulated areas in ternis of price appreciation). 20061 EFFECTS ON LAND PRICES 127 of the indirect, invisible, and often gradual market forces at work. In most public discussions that preceded the approval of Measure 37 in Oregon, and in those that have continued in the year following its passage, there is little evidence of a public awareness of the critical distinction between the value of an individual exemption and the reduction in value caused by a land-use regulation. IX. APPENDIX: POTENTIAL MARKET EFFECTS OF LAND-USE REGULATIONS Depending on the specific market conditions, the price differential in markets affected by a land-use regulation may be mostly, or entirely, attributable to price adjustments in one of the two markets, or it may be divided among several markets. A simple diagram provides a way to think about these kinds of effects. Consider a land-use regulation that allows land to be put to use A, but restricts certain areas of land from being put to another use, use B. Prior to the enactment or enforcement of the land-use regulation, the market can be expected to allocate some land to use A and some to use B, with the price of land being the same for both (at the margin), since both uses will compete for land in a single market/supply. Of course, prices for parcels with unique characteristics will differ because of those characteristics (soil quality, view, distance from city center, etc.). Figure Al illustrates this point. It describes the total supply of land on the horizontal axis. The amount allocated to land use B begins at the left end of the axis; the amount allocated to use A begins on the right end of the axis. The demand or willingness to pay for B slopes down to the right, declining as more land is allocated to B. The demand for A is "flipped" left to right, since an increase in the amount of land for use A means moving from the right end of the horizontal axis to the left. In this particular example, the demand for A is assumed to be relatively flat; whereas the demand for B is assumed to be relatively steep. If a land-use regulation limits the amount of land available for B, we can indicate that amount with a vertical line. All land to the left of the vertical line is limited to use B; the remaining land (to the right of the vertical line) may be used for use A. We can therefore evaluate the effects of the land-use regulation on the price of land for both uses, given the way we have characterized the demand for each land use. The land price for use B is indicated by the intersection of the supply and the demand, or price P,,. The land price for use A is indicated by the intersection of the supply and the demand for use A. In this case, all land not available for use B will be included as the supply for use A, so the intersection of the vertical supply line and the demand for use A gives us the price in the market for land use A, PA. 128 ENVIRONMENTAL LAW [Vol. 36:105 Supply B P,B 1't} Po P, Sunuly A Figure Al Prior to the introduction of this land-use regulation, how would land have been allocated and what would the price of land have been? From the illustration, we see that the vertical supply line would be removed, and the demand for one land use would play off, or compete against, the demand for the other use, leading to an equilibrium price and allocation at Po and Q,. Given the particular way this illustration has been drawn, we can see that most of the price differential created by the land-use regulation is due to the large increase in the price of B-lands (P,,-1'p), and only a small reduction in land prices for land use A can be attributed t,o the land-use regulation (P„-PA). These demand curves, however, can only represent the competing demand for land in one location or market. If land-use regulations have also limited the availability of land for use B in other nearby locations, then some of the pent-up demand that would have been satisfied elsewhere may spill over into the market illustrated above. This might shift demand B up (to the dotted list(, above "demand B"), which would cause P„ to be even higher (P'„), with even more of the overall differential between P„ and PA being due to a rise in P„ rather than a decline in P, For a landowner restricted to use A, the value of an individual exemption will equal the price differential P„-PA (or I",,-P,), since they will be able to shift from use A to use B. The magnitude of these results depends on assumptions about how steep or flat the demand curve for B is relative to the demand curve for A, and also on whether we assume that markets in other locations are affected, and whether demand shifts from those markets to this market. It is also possible that the demand for A could be relatively steep, in which case the 4-- Land use B Qo Land use A 20061 EFTECTS ON LAND PRICES 129 diagram would look like Figure A2 below. We can see that the land-use regulation, when compared to the unregulated case, causes the price of A- land be reduced (P,) PA), whereas the increase in the price of B-land would be relatively small (P,, P(,). Once again, however, if the land-use regulations restrict the availability of land for use B in other locations, some of that pent up demand may be felt in the market/location illustrated in Figure A2. If this were the case, demand A would shift up (as indicated by the dotted line parallel to demand A) so that P„ would rise to P',,. Supply B Supply A P'rs PB P, PA Figure A2 We can depict the case of amenity effects for residential properties by indicating how the benefits and costs of the land-use regulation will affect the demand for land in a market with a fixed supply of land. Beginning with a land base of Q,) and an initial land price of P., consider how land-use regulations may affect land prices. If amenity benefits like those discussed above are increased (government services, environmental amenities, etc.) this can shift the demand from D, to D,. This shift may include the effect of spill-over demand from other locations or neighborhoods if residents see the amenity benefits being more attractive in the market being depicted. Land prices will rise from Po to P, in the case illustrated. An individual landowner who was exempted from the land-use regulations, but was surrounded by lands where the regulations were in force, would be in a position to benefit from the amenities generated but without the restrictions or costs that produce them. For example, being free of building restrictions to protect, environmental zoning rules, an exempted landowner could build or expand their residential buildings in ways that their neighbors could not. The demand, or willingness to pay, for such an 00 4 Land use B Qo Land use A 130 ENVIRONMEM LLAW [Vol. 36:105 exempted property might be reflected in the demand curve D„ and the price that. the exempted property could obtain in the market, would be higher than for conforming properties. Here we see a case where the effect of the land- use regulation on property values is positive, but at the same time the value of an individual exemption is also positive. P, P, Pa Figure A3 In cases where amenity effects are combined with scarcity effects (e.g., if environmental zoning includes setting aside environmentally sensitive areas or greenbelts), then the result could be more pronounced. This kind of change can be characterized as a shift in the supply of land from S° to S', so that prices P,' and P,' would shift, up even more, to where S,' intersects D' and D". Compared to P,,, land prices will rise even more as a result. of the land-use regulation, but at the same time the value of an individual exemption will remain positive. 0 Qo Measuring Compensation Under Measure 37: An Economist's Perspective Andrew J. Plantinga Department of Agricultural and Resource Economics Oregon State University Corvallis, OR 97331 plantin ag)oj-egcrostate^edu Ph: 541-737-1423 December 9, 2004 Helpful comments on earlier drafts from Gail Achterman, Bill Boggess, Dan Bromley, Emery Castle, and Bill Jaeger are acknowledged. However, the author alone is responsible for the content of the paper. Measuring Compensation Under Measure 37: An Economist's Perspective Governor Kulongoski recently stated his preference for paying claimants under Measure 37 rather than foregoing enforcement of the state's land-use laws. Many have expressed fears that such claims could run into the billions of dollars, further straining budgets for education and other publicly-funded programs. If compensation is paid, the costs of Measure 37 will depend ultimately on how compensation is determined. Measure 37 does not precisely define how to compute compensation, leaving the door open to different interpretations. There are several ways in which compensation might be calculated, all of which involve thinking about how land markets operate. This white paper provides an economist's perspective on measuring compensation. What are the different ways in which compensation might be determined? What do these approaches assume about the operation of land markets? The text of Measure 37 raises many questions. I only address the issue of how to determine compensation, using the text of the measure as a reference point. I am interpreting the text as an economist, not as a legal expert. My expertise is the field of economics, not law. In addition, the consensus of legal experts I have spoken to is that no body of case law provides guidance on how to determine compensation. One naturally thinks about parallels with government takings cases but this parallel is weak, as discussed below. I will then provide a simple example to focus my discussion on compensation. Following that, I will propose and evaluate two approaches to computing compensation and, then, end with some concluding remarks. What does the text of the measure say about compensation? There are two important passages in the text of Measure 37 that speak to the issue of how compensation should be measured: "Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under the act." "Subsection (1) of this act shall not apply to land use regulations enacted prior to the date of acquisition of the property by the owner..." The two key points in the first passage are that compensation is for the reduction in fair market value and that compensation is paid for reductions in value that occurred as of the date the owner submits a claim. The second passage indicates that the property must have been acquired by the current owner (or family members) prior to enactment of the regulation. What does fair market value mean? To understand compensation under Measure 37, we need a definition of fair market value. Fair market value refers to the price that willing and well-informed buyers and sellers would agree upon for a piece of property. Some definitions emphasize the notion of competitive markets; namely, it is the price that would result in a market with a large number of potential buyers and sellers. A market dominated by a single seller (a monopolist) or a few sellers (oligopolists) would not be competitive, a point 1 will return to below. What does the price of property represent assuming it derives from a competitive market? Let's consider the price for a parcel of land. Suppose that the parcel can generate an annual income' for its owner of $100 in perpetuity. How much should this parcel sell for? A buyer i Throughout this paper, I will define income as the money taken in by the landowner minus money paid out in costs. This is sometimes referred to as net income or the net return. would be indifferent between buying the land, and gaining the $100 annual income stream, and giving up a sum of money that would generate an identical income stream. Suppose that banks are offering a 5% annual rate of return on deposits. A $2,000 deposit in a bank would generate $100 per year in interest. Thus, the income streams from owning the land and investing $2,000 at the bank are the same. In a competitive market, the land would sell for exactly $2,000. If the seller offered the parcel at a price higher than $2,000, say $2,500, there would be no buyers because the bank investment is a better deal. Instead of buying the parcel for $2,500, an investor could invest this amount at the 5% rate offered by the bank and generate an income stream of $125 per year. This beats the $100 income stream that the land parcel would provide. By the same argument, nobody would want to buy the parcel for any amount above $2,000, and the seller would be forced to lower the asking price. If the price is set below $2,000, say $1,500, then a lot of huyers would want the parcel. $1,500 invested at 5% yields only $75 annually, and so the land parcel which generates $100 annually is a better investment. Competition among buyers will bid up the price of the parcel. As long as the price is below $2,000, another buyer will always want to offer a little bit more. As shown, competitive market forces push the price of the land parcel toward $2,000. This price depends on the stream of income ($100 annually) that can be generated by the land and the interest rate (5%). The exact relationship is: Current price = A nnual income Interest rate The formula is more complicated when the income stream is expected to change in the future and when there is uncertainty about the income stream. 4 The current price for land (or any other asset) reflects the annual income stream generated in perpetuity starting from today. Or, in terms used by economists, the price equals the present value of the future stream of discounted annual net returns (the difference between revenues and costs). Is compensation under Measure 37 prospective or retrospective? Measure 37 requires compensation for the reduction in fair market value due to land use regulations as of the date a claim is filed. "As of can have different meanings depending on context. For example, if 1 say that my insurance policy takes effect as of next Thursday, I mean that I will be insured beginning next Thursday and on into the future. In this context, "as of refers to a prospective change. If I say that the reduction in my weight due to my diet is 5 pounds as of today, I mean that I lost 5 pounds between the time my diet began (some time in the past) and today. In this context, "as of refers to a retrospective change. Either of these interpretations could apply to compensation under Measure 37. In the prospective case, compensation would be paid for the reduction in fair market value on the date the claim is filed. For example, a regulation might be found to reduce the market value of a land parcel from $2,000 to $1,000 on a specific date, implying compensation of $1,000. The $1,000 would compensate landowners for the future stream of income losses the landowner would experience beginning on the date the claim is filed and on into the future. In this case, compensation is provided today for losses that will be experienced in the future. In the retrospective case, compensation is paid for the reduction in fair market value between the time the regulation was enacted and today. For example, a regulation might be found to have reduced the annual income from a parcel from $100 to $50, implying compensation of $50 for each year the regulation has been in effect. Here, compensation is provided for losses already sustained by the landowner. This is an appropriate interpretation of the reduction in fair market vahre because of the equivalence between the sales price of an asset and the discounted income stream generated by it. How is Measure 37 compensation different from compensation in a takings case? Under the U.S. Constitution, the government is required to compensate a property owner when it takes his or her property for some public purpose. A typical case is when the government exercises eminent domain to obtain land for the construction of a public road. In this case, determining the fair market value of the land is relatively straightforward. It is the amount for which the owner could sell the land in the absence of any government intervention (i.e., before the taking occurs). We observe this value (or can estimate it with relative precision) MEASURE 37 TAKINGS Fair market value with no regulation (hypothetical) Compensation Current fair market Current fair market value value with regulation before takings (observable) (observable) Compensation Higher values Value to owner with takings (equal to zero) 6 because it is generated in the land market that exists prior to the government action. After the takings, the value of the land to the owner is zero and so the takings has reduced the value to the landowner by exactly the fair market value prior to the takings. This amount is shown on the right-hand side of the above illustration. Under Measure 37, we are asked to compute the reduction in value: specifically, how much the property would have been sold for without the regulation minus its value with the regulation. This amount is shown on the left-hand side of the above illustration. The difficulty with measuring the reduction in value-and why this is fundamentally different from a typical takings case is that it involves an unobservable hypothetical. Namely, we do not observe a price without the regulation because the regulation is and has been in effect. We do observe (or can estimate with relative precision) the value with the regulation because it is generated in a land market that currently exists, but we need the hypothetical value to calculate the change in value. Compensation under a takings is prospective. Property owners are compensated for the lost income stream that starts today and continues into the future. To compensate owners today for future losses makes sense in a takings case because the property owner has been deprived of any entitlement to future income streams. As discussed above, Measure 37 also can be interpreted as requiring prospective compensation. However, under Measure 37 the property owner still retains the title to the property and, thus, is entitled to whatever income stream the property produces in the future. One could argue that, therefore, owners should be compensated for losses as they occur rather than upfront before they occur. For example, suppose that compensation is provided prospectively for the effects of a regulation that, five years from now, 7 is abolished. The owner will have been compensated for the entire stream of future losses. However, after five years, the owner does not experience any actual losses because the regulation has been removed. Because the owner retains title to the property, he or she receives the higher income stream and, in effect, is compensated twice for the effects of the regulation. An example To make the following discussion concrete, I will focus on an example. Suppose there is a parcel of agricultural land that was purchased prior to a zoning decision that prohibited development of the parcel for residential housing. Suppose, further, that at some point after the zoning regulation was put in effect, development became the most profitable use -that is, the use that would generate the highest income stream. I will assume that the parcel remained in agricultural use (because of the zoning restriction) and that, next to development, agriculture was the most profitable use of the land. What is the simplest approach to determining compensation? Consider the following method of determining compensation for the example provided above. We observe, or can estimate, the amount the land would rent for annually when it is used for agriculture. This is the annual value ol'the land with the regulation. We can convert this amount to a sales price for the parcel by dividing through by the interest rate (see the formula above). To find the sales price without the regulation, we could hire a land appraiser who could estimate how much the parcel would sell for if development were allowed on the parcel. We now have two prices for the parcel -the price assuming the land remains in agricultural use (the price with the regulation) and the price assuming development is an option (the price without the regulation). If compensation is to be prospective, then it should simply equal the difference between the two prices: Prospective compensation = Price without the regulation Price with the regulation If, instead, compensation is retrospective, then we need the annual incomes generated by the parcel. We get these amounts by multiplying the above prices by the interest rate. Thus, Retrospective compensation = (Annual income without the regulation Annual income with the regulation) x Number of years regulation has been in effect Here, the annual loss due to the regulation is multiplied by the number of years the regulation has been in effect.3 Finally, if the landowner is to be compensated for losses as they occur, rather than before they occur, compensation would be paid annually and would equal: Annual compensation = Annual income without the regulation - Annual income with the regulation These three methods of determining compensation are straightforward, but carry with them implicit assumptions about the operation of land markets. I will discuss the most problematic of these next. The simple approach treats the landowner like a monopolist To compute compensation, we need to determine the value of the land without the regulation. A question we must address is: In this hypothetical case, do we remove the 3 I am assuming that annual income is measured in current dollars (see more discussion of current dollars below) and that landowners are not to be compensated for foregone investment opportunities-namely, the opportunity to have invested historical losses due to the regulation. regulation from only the single parcel under consideration, or do we remove it from all parcels subject to the regulation? The simple approach sketched above assumed the regulation was removed only from the parcel being evaluated. The land appraiser estimated how much the parcel could sell for if development were allowed. This implicitly assumes the regulation still applies to other parcels. In other words, we computed compensation under the assumption that the landowner had exclusive rights to develop land previously subject to the regulation. Or, we computed the income that would have accrued to a monopolist in the land market. In doing this, we are allowing the landowner to benefit get higher compensation -from the restrictions imposed by the regulation on other properties. There are two immediate objections to computing development income in this way. First, anyone whose property is affected by the regulation is eligible for compensation. This is an argument for why our hypothetical value should be defined under the assumption that all such landowners pursue development. Second, the text of the measure refers to the reduction in fair market value. As discussed above, this is often interpreted as the sales price in a competitive market characterized by a large number of potential buyers and sellers. Assuming that only a single owner can develop a parcel would be incompatible with the definition of fair market value. What would be the value of the land assuming the regulation does not apply anywhere`? If the zoning regulation currently restricts development of a large number of agricultural parcels, then in the hypothetical world without the regulation a single agricultural parcel will just be one of many that could be developed. Competition will drive down the value of the parcel for development. Suppose that the agricultural parcel in our example is located relatively far from centers of economic activity and does not have any distinguishing characteristics (e.g., a scenic 10 view). If this is the only parcel without the development restriction, then the development value could be high. But, if the zoning regulation is removed from all parcels, then the development value of this unexceptional parcel is likely to be quite low. Indeed, it could be the case that in this hypothetical world, agriculture-not development is the most profitable use of this parcel. If this is true, then the value with and without the regulation is the same, suggesting compensation should be zero. The above discussion suggests that locational advantages and unique characteristics will increase the value of parcels for development. In a competitive market, these features of the parcel would "earn" income, relative to parcels without such features. The zoning regulation denies the landowner the opportunity to realize this income. If we can value these distinguishing attributes of a parcel, then we have an estimate of the compensation required under Measure 37. Economists have developed a technique hedonic price analysis for doing just this. The details of hedonic price models are beyond the scope of this paper, but the basic idea is to separate prices for property (land, houses, etc.) into components measuring the value of each attribute.4 In principle, the results of these studies could be used to develop compensation schedules listing how much owners would be paid given the particular attributes of their parcel. This would, however, be a challenging and substantial undertaking. Can compensation be based on the original purchase price? When an individual purchases a parcel of land, he or she is acquiring the income stream generated by the land. More specifically, the price of the land will reflect the market's valuation 4 For example, Oregon State University researchers estimated the effects of elevation on housing values in Portland, Oregon. For each 100 foot gain in elevation, the price of housing increased by $2.39 per square feet (or about $5,000 for a 2,000 square foot house). The citation for this study is: Wu, J., Adams, R.M., and A.J. Plantinga. 2004. Amenities in an Urban Equilibrium Model: Residential Development in Portland, Oregon. Land Economics 80(1):19-32. 11 of the income stream assuming the land is allocated to its most profitable use. Why the most profitable use? Suppose the price of the land was based on a use that generates a smaller income stream. Then, buyers could make money by purchasing the parcel and allocating it to its most profitable use. In a competitive market, many buyers will try to do this, and they will bid up the price of the land until its price exactly reflects the stream of income from the most profitable use. Measure 37 provides compensation only to individuals who acquired property before the regulation went into effect. As such, the original purchase price of the property for qualifying claimants should reflect the income stream that would have accrued to the landowner in the absence of the regulation. The regulation forced the owner to accept a lower-valued income stream. In my example, this is the income from agriculture. Suppose we convert the annual agricultural income to a price for the parcel by dividing through by the interest rate. Then, compensation could be calculated as: Compensation Original purchase price-Price with the regulation We would need to express prices in current dollars to account for inflation since the property was purchased. The point here is that prices for all goods tend to rise over time. This general price inflation implies, for example, that $1 had greater purchasing power in 1965 than it does today. The consumer price index can be used to convert dollars from an earlier year to current dollars.s For example, a parcel of land purchased for $325 in 1965 would have a price of $1,970 in current dollars. Compensation calculated in this way would be retrospective and prospective. It would compensate owners for losses between the time the regulation when into effect and the present ' Sec the inilation calculator at http:,,,www.Ws.gov/cpiihome.htm. 12 and losses from now into the future. This approach has the advantage, in many instances, of using observable, rather than hypothetical, values. Often, the original purchase price is observable. In many cases, it will be the value generated when the regulation does not apply to any parcels that is, it will be a fair market value.6 Likewise, the income from agriculture is observable. This is the value generated in the existing world with the regulation. One possible objection to this approach is that the market might have anticipated the eventual enactment of the regulation. If participants in the land market could see the regulation coming, then the original purchase price would not reflect the potential stream of income from development. This may seem to be a weakness of this approach, but, from one perspective, it is a strength. If the market anticipated the regulation, the landowner would have paid less for the property. In the extreme case, if the zoning restriction was predicted perfectly, the original price of the parcel would have reflected the stream of income from agriculture. As such, there is no difference between the income stream the landowner paid for originally and the income stream realized by the landowner. In fact, whatever the market anticipated, this approach always gets it right. The difference between the original purchase price and the income from agriculture equals the income stream landowners paid for when they purchased the property, but were later denied by the regulation. There is a practical side to basing compensation on the original purchase price. Presumably, claimants have to demonstrate that they have owned the property since before the regulation was enacted. They could be required to produce a document at the same time showing the original purchase price of the property. But, what if the sales price was for a collection of assets? In our example, the owner may have purchased agricultural land, buildings, 6 Exceptions could arise with regulations that are enacted over time. But, in any case, owners would still be compensated correctly for lost income (see below). 13 farm equipment, and so on. However, it is only the value of the land that is affected by the regulation. Thus, we need a price (or appraisal) of the land separate fi-om the other assets. This may not be available, and could be difficult to reconstruct. Concluding remarks My main conclusion is that determining compensation under Measure 37 is not going to be easy. I have examined what I consider to be two logical approaches to measuring compensation: 1) a simple approach that considers the difference between current estimates of market value with and without the regulation and 2) an approach that considers the difference between the original purchase price and the market value with the regulation. As I have tried to demonstrate, both approaches have potential problems. My assessment is that the problems are particularly severe with the simple approach based on current estimates of market value. This approach requires us to imagine a hypothetical world without the regulation. Defining that world as one in which landowners are participants in a competitive land market seems logical and consistent with the idea of fair market value. Otherwise, we are allowing owners to benefit from restrictions imposed by the regulation on other property owners. As well, the order in which claims are submitted matters, with early claimants receiving more compensation. However, obtaining accurate estimates of property values under the assumption of competitive markets will require the use of sophisticated valuation techniques such as hedonic price analysis. Basing compensation on the original purchase price of the property is more straightforward because it typically would involve observable instead of hypothetical values. In this case, landowners are compensated for the income stream they paid for when they purchased 14 the property, but that was later denied by the regulation. Basing compensation on the original purchase price also treats all landowners the same that is, landowners assumed to be participants in a competitive, rather than monopolistic, market. As I understand it, there is legal precedent for viewing compensation in this way. However, the major obstacle to this approach is that the affected property may be bundled other assets included in the original transaction. 15 April 1, 2007 Mearsure 37 Claims Community Development Department 117 NW. Lafayette Bend, Oregon 97701 MAY 10 2007 DLSK'HUTE' C UN"'Y OG REGARDING Comments on claim number M37-06-140 (BIG FALLS RANCH) Request for information. Attention : Kevin Harrison, This particular Measure 37 claim , if successful, would significantly degrade the integrity of the purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones : " The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." As a close neighbor to this property I would be adversely effected by the sort of development that the claimant has outlined. Such a shift in the overall use of this land is , in essence, a type of spot zoning that undermines the values of my property and that ,of the entire area. The Lowerbridge community would quite likely become., just another rural subdivision in time; lot sizes becoming smaller, and smaller until there were no truly "farm-able" properties: The'efforts to develop this area as working. faun land have taken place over ja good number of' years. The general fertility of the soils and the extensive work toward enhancing water availability underpin the recognized value that prompted this area to be zoned as it is. There are many other areas of Deschutes County where the land is more marginal for farming and the existing zoning is compatible with greater building density. Most of us purchased land in this area with the expectation that existing land use laws would keep the use value stable. Recognition of the values of agricultural lands to the overall benefit of the 'County can be readily understood by the fact that the County has endorsed a tax deferral program for farm use property. I would like an answer to the obvious question , where is the equality IF my neighbors can do something on their land that I am not allowed to do ? Should I not be compensated as well for the significant shift in values ? I am speaking not only about the financial inequities that are generated by these sort of claims but also the erosion of the deeply personal values that first drew me to this particular place . By this I mean the spacious and beautiful land and abundant water with workable soils, few close neighbors and the-expansive landscape uncluttered with houses and people. The claimant in this case`is not entitled, to a blanket waiver. ,There ie a;questipn as to the validity of this claim under Measure 37 as it does not provide relief for partitioning or subdividing: There is no proof of -the lose of use. The-Big FaAs-- Gtaim states explicitly a request to subdivide existing parcels into much,smaller acreage. It is fairly obvious that this would be done in order to sell off the newly created pieces for home sites. Measure 37 verbiage restricts any waiver of regulations to the existing "owner" of the property and indicates that this right is non transferable. This is an obvious incongruity. The location of this property in relationship to the Deschutes River Corridor and several existing management and wildlife overlays as well as the proximity to large tracts of public land make this area one of a much- larger public concern. The preservation of these spaces in conjunction with these large tracts of open space provide a much needed area for wildlife movement to and thru this part of the County. These sort of wide open spaces provide migration corFidors for wildlife and buffer zones from other use areas , particularly in relationship to the river with its much sought after riparian and rimrock terrain. For all of the above reasons , I wish to go on record as standing in support of denying this claim. Sincerely, r ka. Avila I- h'&4 hse ~Zl f (e 0 (P'i'VV ev I~Y• a 77( o NQ v 1~ j co U w4f Ca M m &I N- ; , 4-e s CO UKJ-zt i J dw 1ta hvli~evp ik-a,t At Uok4S 10,e Je-d A fl is a ,t l ~.C l~-w~ tC bL YLf h cY ( 15 Of A V 41" id/" I kt P"S 4-j ~'t 1E' A,'S u Y~ 3 7 r 14 6 GG .0 a Falk, R.avLckt i5 &t/ice of Ike ih prl`"e f"m prod `cr-,, h. e5ct"kk s Cn w#~.. il,~+`s 15 a-M n l- Cie . Wk e iaJ In, ~tt-,r5 I-O vJP,,r 6 r' d l t "te ►1kt de.c~`5 J w~ it la-t. rn WO d-U 710 a rv,v-&A MOC>f Of u's k&,V4 GvkvAu eLo qa4- wc~ v [ i V i V7 Ck- S-LtkAivu ' v7 . I .e l ix" task P[ a. v, h 11 ~ l "s ll tve- ktf,~ kt (5 k&/r\. A., 6-k S t~ U, a d V curs ! . . a G It l k Au +a-4 6 ck - Iltic Cv VL S ~ v-v1 9~ jet r~ DA 5 a O tj V trf I ej ik, s C &4_,L c,- a- ( t~y LO r~,l ~ U-u? o~ ~ ~►'~-i I r ~e S ~ h c~ L ~ vl~l.e-r~e 11~.6~-~L- U~ ~t.~fYv~-~ tg-r~, i~,~,~.,- 1 o--u~. s ~,!l o 0 D-~t h tv~1 s m~e Ksuvve, w i c1 die I~~ fvt,WJ i~ pr rk f lu 6 wf -e- Gib Cu v at e:~-t'oY► . m del d t, Ww- i w h ,,bGCO-vu h . ~J vim ,,,-d WaA,~ w`-t owe fiV a L OS w'L-o Wl'11 4-t /(-I)/ Zuma Ranch Rick and Lee Stone 15255p O. Box 306 ridge UEIVEO Terrebonne, OR 97760 (541) 548-3386 APR 2 3 2007 April 19, 2007 tlu 168 COUA "Y c Measure 37 Claims Unit Dept. of Administrative Services 1225 Ferry Street, SE, U-160 Salem, OR 97301-4262 Deschutes County Community Development Department 117 NW Lafayette Bend, OR 97701 Re: Comments on State Measure 37 Claim No. M-131-113 (Big Falls Ranch) Dear Sir or Madam: I write to oppose the Measure 37 Claim filed by the new owners of the Big Falls Ranch. The Big Falls Ranch has been a productive-and beautiful-ranch property since long before the current owners gained control. The proposed subdivision is entirely inconsistent with the exclusively farm use of all of the other properties along Lower Bridge, and will fundamentally change the character of this prime farming area. The voters who passed Measure 37 cannot possibly have envisioned this kind of radical destruction of the State's agricultural lands. My wife and I own and operate a small ranch at the end of NW Lower Bridge. We raise and sell about 400 tons of hay each year, and graze stock on our pastures in the off season. My wife's parents and her brother also own ranch properties on Lower Bridge, and we share equipment and resources with them to farm our three properties. The deep soil along Lower Bridge is good for growing and we generally are able to get three cuttings since we have a temperate climate. In fact, most folks call our area a "banana belt" because we hardly ever get the kind of really cold weather experienced by our neighbors around Sisters. Lower Bridge is flanked by family ranches and farms all the way from the bridge across the Deschutes River past the turn off on Holmes Road. Despite the fantastic growth in other areas of Deschutes County, the prime farmland along Lower Bridge has remained relatively untouched. Many of the same farmers and ranchers who own the land today were the land owners back in the late 1970's when our family first began to farm in Lower Bridge. It is a beautiful land. The nearby snow-capped peaks and Smith Rock are visible from most of our properties. Wildlife abounds-countless white-tail deer, free-roaming elk, coveys of quail, and our ever-present song birds keep us company throughout the year. Traffic along Lower Bridge still keeps a "rural" pace that accommodates our farm equipment on the road. We do not run the risks of driving our equipment amongst the more aggressive commuter traffic that now races along Highway 97 much of the time. Pulling a tractor and bailer up and down Lower Bridge-which we do often between our three family ranch properties-would become dangerous if the traffic were to increase significantly. As a bottom line, we all moved to Lower Bridge because it is a prime farmland area in a beautiful natural setting. Subdivision of one of the biggest Lower Bridge ranches will lead to more private residences, more people, more traffic, more congestion, more light and other pollution-and will bring no corresponding benefit to those of us who live and farm our land along Lower Bridge. For all of these reasons, as well as the other powerful reasons advanced by our neighbors-we oppose this claim. Very truly yours, vp~~ Richard J. Stone cc: Hon. Gene Whisant Hon. Ben Westland Hon. Chuck Burley Hon. Ted Kulongoski 2 . 9 a4G*j~4//4 t-&4 Aev S:r 7 ` III ece,~~ot 0'~ f-~y~ April 18, 2007 Measure 37 Claims Community Development Department 117 NW. Lafayette Bend, Oregon 97701 RE: Comments on claim number M37-06-140 (BIG FALLS RANCH) Request for information. Attention: Kevin Harrison, Our family farms at Lower Bridge. This area of Deschutes County is primarily farms and is one of the most productive farming areas in Deschutes County. I am becoming increasingly concerned with the way that the Measure 37 claims are changing the way people are looking at their farms. Farmers have traditionally been stewards of the land, providing for their families and living a chosen life style. Now we have farmers like Rex Barber who have inherited these farms and are looking to make their fortunes by breaking up high value farm ground. As a farmer, I fully understand that it is getting very difficult to make ends meet farming. I don't blame Rex for wanting to sell some of the farm to finance his ability to continue to live there. I firmly believe that Measure 37 has caused people to look at their farms as cash cows. If we want to preserve Oregon's farm ground we need to stop this thinking. This particular Measure 37 claim, if successful, would significantly degrade the integrity of the purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones: "The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." The efforts to develop this area as working farm land have taken place over a good number of years. The general fertility of the soils and the extensive work toward enhancing water availability underpin the recognized value that prompted this area to be zoned as it is. There are many other areas of Deschutes County where the land is more marginal for farming and the existing zoning is compatible with greater building density. Big Falls Ranch is a very valuable farm. Where is the proof that any zoning changes have decreased its value? The claimant in this case is not entitled to a blanket waiver. There is a question as to the validity of this claim under Measure 37 as it does not provide relief for partitioning or subdividing. There is no proof of the loss of use. I wish to go on record as standing in support of denying this claim. Resp lly, Chris Lawrence 70955 Lower Bridge Way Terrebonne, OR 97760 chris.lawrence@countryfinancial.com APR 19 2007 COUA C, 16 April 2007 Dear k e-v % r1 ~A diyy; Sd in , Re: Measure 37 Claim No. M 131 113 (Big Falls Ranch) I wish to go on record standing in opposition to this particular claim. I also wish to go on record opposing Measure 37 as it currently stands. I would support revising this measure to allow property owners to build ONE home for a family member while prohibiting subdivisions and other commercial development in areas designated as EFU as well as wildlife areas and open spaces including the Deschutes River Corridor, BLM & National Grasslands (which I fear will eventually be sold off to developers to fill the state & county's coffers). As our population grows, development is inevitable. We must create ways to accommodate both the needs of human habitation & those of the environment that literally supports our communities. The properties neighboring the Big Falls claim are home to many high desert species of plants, animals & birds. This area is a spacious mixture of agricultural & natural landscapes, from the rocky dry canyons to the distant snow-covered peaks. Houses & outbuildings are interspersed sparsely throughout the region allowing wildlife to move along its ancient pathways. Many of us who live here chose this place because of its peaceful rural nature as well as its proximity to the open spaces inhabited by high desert wildlife. There is a reason this planet is called Mother Earth. We must steward the land in a thoughtful, sustainable way if the land is to continue to sustain us. Human greed, as it has manifested through this measure, is not sustainable. Please hear my voice. Please hear the voices of the coming generations. Please hear the voices of all beings who call this place home. Sincerely, Marguerite Saslow (property owner soon-to-be resident) 71170 Lower Bridge Way serial#124837 assessor's map14-12, tax lot 1300 Terrebonne, OR (Mailing address: 02403 SW Greenwood Rd. Portland, OR 97219) RECEiV n APR 19 2007 JL0"k HU I ES COUA -y Ct April 1~ 2007 Mealsure 37 Claims Community Development Department 117 NW. Lafayette Bend, Oregon 97701 APR 18 2007 Dt.3~H TE8 U1\ ~ y CL UNMOPOMWANOWN"U REGARDING: Comments on claim number M37-06-140 (BIG FALLS RANCH j Request for information. Attention : Kevin Harrison, This particular Measure 37 claim , if successful, would significantly degrade the integrity of the purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones : " The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." As a close neighbor to this property I would be adversely effected by the sort of development that the claimant has outlined. Such a shift in the overall use of this land is , in essence, a type of spot zoning that undermines the values of my property and that of the entire area. - The Lowerbridge community. would quite likely become just anotherrural subdivision ; irr time, lot sizes becoming. smaller and, smaller; until there were no truly "farm-able .properties. The efforts to develop,this.area as , working..farm land havetaken place over a .good, number of years. The general fertility ,of the soils and the extensive work toward enhancing water availability underpin the recognized value that prompted this area to be zoned as it is. There are many other areas of Deschutes County where the land is more marginal for farming and the existing zoning is compatible with greater building density. Most of us purchased land in this area with the expectation that existing land use laws would keep the use value stable. Recognition of the values of agricultural lands to the overall benefit of the County can be readily understood by the fact that the County has endorsed a tax deferral program for farm use property. I would like an answer to the obvious question , where is the equality IF my neighbors can do something on their land that I am not allowed to do ? Should I not be compensated as well for the significant shift in values ? I am speaking not only about the financial inequities that are generated by these sort of claims but also the erosion of the deeply personal values that first drew me to this particular place . By this I mean the spacious and beautiful land and abundant water with workable soils, few close neighbors and the expansive landscape uncluttered with houses and people. - The claimant in this case is not entitled to a blanket waiver .>There is a.question as to the validity of this claim under--Measure 37 as it does not-provide relief for.partitioning or subdividing., There is no proof of the lose -of use. The Big Falls Claim -states explicitly a request to subdivide existing parcels into, much smaller acreage. It is fairly obvious that this would be done in order to sell off the newly created pieces for home sites.Measure 37 verbiage restricts any waiver of regulations to the existing "owner" of the property and indicates that this right is non transferable. This is an obvious incongruity. The location of this property in relationship to the Deschutes River Corridor and several existing management and wildlife overlays as well as the proximity to large tracts of public land make this area one of a much larger public concern. The preservation of these spaces in conjunction with these large tracts of open space provide a much needed area for wildlife movement to and thru this part of the County. These sort of wide open spaces provide migration corridors for wildlife and buffer zones from other use areas , particularly in relationship to the river with its much sought after riparian and rimrock terrain. For all of the above reasons , I wish to go on record as standing in support of denying this claim. Sincerely, l> ©c ~,¢k- aid -Pa-.,v--1n-e,r- ca~ S`7 Z 4 N(,,-) kocs-- -Br-c e4ser 00-4-1 April 1, 2007 Mearsure 37 Claims Community Development Department 117 NW. Lafayette Bend, Oregon 97701 REGARDING : Comments on claim number. M37-05-140 (BIG FALLS RANCH) Request for information. Attention : Kevin Harrison, This particular Measure 37 claim , if successful, would significantly degrade the integrity of the! purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." As a close neighbor to this property I would be adversely effected by the sort of development that the claimant has outlined. Such a shift in the overall use of this land is in essence, a type of spot zoning that undermines the values of my property and that of the entire area. The Lowerbridge community would quite likely become just another rural subdivisionin time, lot sizes becoming smaller and smaller until there were no truly "farm-able" properties.; The efforts to develop"this area as working faun land have taken place over a good 'nurrmber of years. Thee general fertility =of-the soils and the extensive work toward enhancing water availability underpin the recognized value that prompted this area to be zoned as it is. There are many other areas of Deschutes County where the land is more marginal for farming and the existing zoning is compatible with greater building density. Most of us pu chased land in this area with the expectation that existing land use laws would keep the use value stable. Recognition of the values of agricultural lands to the overall benefit of the County can be readily understood by the fact that the County has Endorsed a tax deferral program for farm use property. I would like an answer to the obvious question , where is the equality IF my neighbors can do something or their land that I am not allowed to do ? Should I not be compensated as well for the significant shift in values ? I am speaking not only about the financial inequities that are generated by these sort of claims but also the erosion of the deeply personal vale, es that first drew me to this particular place . By this I mean the spacious and beautiful land and abundant water with workable soils, few close neighbors and the expansive landscape uncluttered with houses and people. The claimant in this case is not entitled 16'a blWket waiver 'There is 'a question as to the validity of this claim under Measure 37 as. it does' not provide relief for partitioning or subdividing. There is no proof of the lose of use. T.he 'B'ig Falls' Claim states explicitly a request to subdivide existing parcels into much smaller acreage.` ft is fairly obvious that this would be done in order to sell off the newly created pieces for home sites. Measure 37 verbiage restricts any waiver of regulations to the existing "owner" of the property and indicates that this right is non transferable. This is an obviaUs incongruity. The location of this property in relationship to the Deschutes River Corridor and several existing management and wildlife overlays as well as the proximity to large tracts of public land make this area one of a much larger public concern. The preservation of these spaces in conjunction with these large tracts of open space provide a much needed area for wildlife movement to and thru this part of the County. These sort of wide open spaces provide migration corFidors for wildlife and buffer zones from o-:her use areas , particularly in relationship to the river with its much sought after ri oarian and rimrock terrain. For all of the above reasons, I wish to go on record as standing in support of denying this claim. Sincerely, U off, ~~\e .t ~ . C5,\ ) 3 is e , s-8 April 1, 2007 Mearsure 37 Claims Community Development Department 117 NW. Lafayette Bend, Oregon 97701 APR 1 1 2007 REGARDING : Comments on claim number M37-06-140 (BIG FALLS RANCH) Request for information. Attention : Kevin Harrison, This particular Measure 37 claim , if successful, would significantly degrade the integrity of the purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones : " The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." As a close neighbor to this property I would be adversely effected by the sort of development that the claimant has outlined. Such a shift in the overall use of this land is , in essence, a type of spot zoning that undermines the values of my property and that of the entire area. The Lowerbridge community would quite likely become just another rural subdivision ; in time, lot sizes becoming smaller and smaller until there were no truly farm-able properties. The efforts to develoP this area, as working farm land have taken place over a gooel number of years. The general fertility of the soils and the extensive work towar&enhancinq-water availability underpin the. recognized value that prompted this area to be zoned as it is. `here are many o'ther' areas of Deschutes County where the land is more marginal for farming and the existing zoning is compatible with greater building density. Most of us purchased land in this area with the expectation that existing land use laws would keep the use value stable. Recognition of the values of agricultural lands to the overall benefit of the County can be readily understood by the fact that the County has endorsed a tax deferral program for farm use property. I would like an answer to the obvious question , where is the equality IF my neighbors can do something on their land that I am not allowed to do ? Should I not be compensated as well for the significant shift in values ? I am speaking not only about the financial inequities that are generated by these sort of claims but also the erosion of the deeply personal values that first drew me to this particular place . By this I mean the spacious and beautiful land and abundant water with workable soils, few close neighbors and the expansive landscape uncluttered with houses and people. The claimant in this case is' not entitled` to a blanket waiver There .is a gpestaon as tq the.validity of this claim under -Measure 37 as it does not provide relief for part itonjn,g or subdividing. There` is no proof of the. lose of use; The Big Falls Claim fates explicitly a request to subdue existing parcels into much smaller acreage. It is fairly obvious that this would be done in order to sell off the newly created pieces for home sites. Measure 37 verbiage restricts any waiver of regulations to the existing "owner" of the property and indicates that this right is non transferable. This is an obvious incongruity. The location of this property in relationship to the Deschutes River Corridor and several existing management and wildlife overlays as well as the proximity to large tracts of public land make this area one of a much larger public concern. The preservation of these spaces in conjunction with these large tracts of open space provide a much needed area for wildlife movement to and thru this part of the County. These sort of wide open spaces provide migration corridors for wildlife and buffer zones from other use areas , particularly in relationship to the river with its much sought after riparian and rimrock terrain. For all of the above reasons, I wish to go on record as standing in support of denying this claim. Sincerely, bbugl o-& K i he H-A-A r S 7'E~v vP,~ o ~ ►..Q ~ 9~~.~Ov~ April 1, 2007 Mearsure 37 Claims AP^ 10 2007 Community Development Department h 117 NW. Lafayette Bend, Oregon 97701 REGARDING : Comments. on claim number M37-06-140 (BIG FALLS RANCH) Request for information. Attention : Kevin Harrigon, This particular Measure 37 claim if successful, would significantly degrade the integrity of the purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones : " The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." As a close neighbor to this property I would be adversely effected by the sort of development that the claimant has outlined. Such a shift in the overall use of this land is , in essence, a type of spot zoning that undermines the values of my property and that of the entire area. The Lowerbridge community would quite likely become just another rural subdivision ; in time, lot sizes becoming smaller and smaller until there were no truly "farm-able" properties. The efforts to develop this area as working farm land have taken place over a good number of years. The general fertility of the soils and the extensive work toward enhancing water availability underpin the recognized value that prompted this area to be zoned as it is. There are many other areas of Deschutes County where the land is more marginal for farming and the existing zoning is compatible with greater building density. Most of us purchased land in this area with the expectation that existing land use laws would keep the use value stable. Recognition of the values of agricultural lands to the overall benefit of the County can be readily understood by the fact that the County has endorsed a tax deferral program for farm use property. I would like an answer to the obvious question , where is the equality IF my neighbors can do something on their land that I am not allowed to do ? Should I not be compensated as well for the significant shift in values ? I am speaking not only about the financial inequities that are generated by these sort of claims but also the erosion of the deeply personal values that first drew me to this particular place . By this I mean the spacious and beautiful land and abundant water with workable soils, few close neighbors and the expansive landscape uncluttered with houses and people. The claimant in this case is not entitled to a blanket waiver . There is a question as to the validity of this claim under Measure 37 as it does not provide relief for partitioning or subdividing. There is no proof of the lose of use. The Big Falls Claim states explicitly a request to subdivide existing parcels into much smaller acreage. It is fairly obvious that this would be done in order to sell off the newly created pieces for home sites.Measure 37 verbiage restricts any waiver of regulations to the existing "owner" of the property and indicates that this right is non transferable. This is an obvious incongruity. The location of this property in relationship to the. Deschutes River Corridor and several existing management and wildlife overlays as well as the proximity to large tracts of public land make this area one of a much larger public concern. The preservation of these spaces in conjunction with these large tracts of open space provide a much needed area for wildlife movement to and thru this part of the County. These sort of wide open spaces provide migration corFidors for wildlife and buffer zones from other use areas , particularly in relationship to the river with its much sought after riparian and rimrock terrain. For all of the above reasons , I wish to go on record as standing in support of denying this claim. Sincerely, C l Gtr E ~ ~ ~L L~ -FICA f-E13oti ~J c , 6~c q ~ 7~0 O April 6, 2007 Measure 37 Claims APR 10 2007 Community Development Department „ TI .-b. 117 NW Lafayette Dt W,Cu Bend, OR 97701 Re: Comments on State Measure 37 Claim No. M37-06-140 (Big Falls Ranch) and request for further information. Dear Kevin Harrison, In response to your notice of my neighbor, Rex Barber at Big Falls Ranch, filing a Measure 37 claim dated March 5, 2007, I am writing to ask the Department to consider the following issues in regards to the claim. This claim seeks $5,085,760 or the right to subdivide and develop 1740 acres of prime farmland, important open space, wildlife habitat and river corridor in Deschutes County's EFU and Landscape management zones according to rules in effect in 1988. KEEP OREGON A JOURNEY, NOT A DESTINATION. I grew up on a farm neighboring the Big Falls Ranch, and I will live and die there. I plan to care for my parents so they can live out their days in the log house they built. I Will be the next steward of that land, bringing along the fourth and fifth generations of that place. As a voter, I was led to believe that Measure 37 would compensate a few people who could not provide a home site for their kids or were denied a building permit for a parcel that they bought years ago with the hope of retiring there. It should not be the wholesale of the family farm. ' But the people, like Rex Barber,' making Measure 37 ,claims are using it as a vehicle to subdivide older family farms into housing developments and destination resorts. I am the youngest person in my community and I will outlive all of my neighbors who could potentially leave the valley in ruin with the help of Measure 37 as it stands. 'Please stop them. I am Oregon's youth and I am pleading Farm Ground for the Future = The Squaw Creek Irrigation District Our Squaw Creek Irrigation District has just been funded several million dollars to pipe the irrigation canal to conserve water for endangered salmon and to preserve our small family farms as a viable way of life. The subdivision of Big Falls Ranch would undermine gall of our efforts and support that we have received ,from,all over the state. It would mean small plots on ideal farm ground, with not enough space for them to farm. Oregon needs to preserve its rural landscape and we have worked hard to do so. With the growing demands for fuel and the focus on bio fuels, we will need all tillable acres to provide for Oregon's fuel and food needs in the 21st century. This particular Measure 37 claim, if successful, would significantly degrade the integrity of the purpose of the EFU Zone in which is lies. According to Oregon statute 18.16.010 regarding EFU Zones : " The purpose ...is to preserve and maintain agricultural lands and to serve as a (sanctuary) for farm uses." Large farms and ranches are made up of many smaller parcels. Example: If you owned 80 or more acres prior to the year the land laws changed, you could partition it into 3 pieces as long as they were a certain size (not sure what the size was but let's say 2.5 acres, leaving 75 acres of the .original piece). So 'if Rex has a ranch made 'up ,of 22 parcels, which would ultimately mean 66 homes. How can we preserve farm ground under these rules? Archaeological Resources Big Falls Ranch borders the Deschutes River where there are pictographs on the cliffs as well as many archeological resources Un his dry ground. I have personally found arrowheads on his land, which I have left there. The state should require that archaeological research be done on his ground before any subdivision goes ahead. Wildlife Habitat The draw on the northern boundary of Big Falls Ranch that runs to the Deschutes River is 'the home of mountain lions. This species of mega fauna is running out of "space in our state and is thriving on Rex Barbers land and the BLM ground that it borders. I also know that there are bobcat dens on his ranch, as well as deer and elk, which use his land to get to the Deschutes River to water particularly in winter. His subdivision would block their passage to their lower wintering grounds and water. The increased traffic his subdivision would create would certainly mean many times more vehicle-wildlife collisions. Traffic I bike Lower Bridge and Holmes Roads on a daily basis for both recreation and transportation. I rarely drive my car and am committed to (educing my carbon emissions. These roads are windy, narrow, and have virtually no shoulder. The increased traffic from the Big Falls subdivision would become a life-threatening hazard to my neighbors and me. He should be required to improve the roads for their increased use in the case his subdivision is granted. A Cost=Benefit Analysis of what it would mean to develop far from town for people who will have to commute to town for work. Transparency? Rex Barber owns "Big Bertha", the biggest well and pump in the county, but he just traded off 500 acre feet of water for the new Thornburg destination resort to go in just south of our farming community. His business partner is the developer of the Thornburg resort. Barber has tried to develop his land into a destination resort before Measure 37 and was thwarted. Under present land laws, he can legally subdivide his land into 80- acre lots. Why he has made this request a Measure 37 claim when it is perfectly legal is not -clear. Between the odd -water trade off and the unnecessary claim, I question his motives. The claimant in this case is not entitled to the blanket waiver he is requesting. There is a question as to the validity of this claim under Measure 37 as it does not provide relief for partitioning or subdividing. There is no proof of any loss of use. The Big Falls Claim states explicitly a request to subdivide existing parcels into much smaller acreage. It is fairly obvious that this would be done in order to sell off the newly created pieces for home sites. Measure -37 restricts any waiver of regulations to the existing "owner" of the property and indicates that this right is non-transferable. This is an obvious incongruity. Our property values will drop dramatically As a close neighbor to this property, the sort of development that the claimant has outlined would adversely affect me. Such a shift in the overall use of this land is, in essence, a type of spot zoning that undermines the values of my property and that of the entire area. The Lower Bridge community would quite likely become just another rural subdivision; in time, lot sizes becoming smaller and smaller until there are no truly "farm-able" properties. Most of us purchased land in this area with the expectation that existing land use laws would keep the use value stable. recognition of the values of agricultural lands to the overall benefit of the County can be readily understood by the fact that the County has endorsed a tax deferral program for farm use property. I would like an answer to the obvious question, where is the equality IF my neighbors can do something on their land that I am not allowed to do? Should I not be compensated as well for the significant shift in values? I am speaking not only about the financial inequities that are generated by this sort of claim, but also the erosion of the deeply personal values that I grew up with. By this I mean the spacious and beautiful land and abundant water with workable soils, few close neighbors and the expansive landscape uncluttered with houses and people. For all of the above reasons, I wish to go on record as standing in support of denying this claim. Sarahlee Lawrence 70955 Lower Bridge Rd. Terrebonne, OR 97760 Slawrence99na,hotmail. com 541-279-0841 I