At the bottom of a rimrock-shouldered canyon outside Sisters, Matt Cyrus surveys Whychus Creek as it rounds an oxbow bend and tumbles into a riffle that dances in the late morning light. The creek and surrounding meadow are part of an unprecedented salmon and steelhead reintroduction effort in the upper Deschutes Basin. The property is also a small part of ongoing discussion about how to sensibly regulate destination resort development in Deschutes County where resorts mushroomed during the housing boom and then fizzled as development capital and consumer interest evaporated.
A sixth-generation Oregonian whose family came to the state from Tennessee on the historic wagon trail, as Cyrus tells it, just ahead of the ill-fated Donner Party, Cyrus is one of the few people who still sees opportunity in the destination resort market. And perhaps with good reason. He and his family - which includes his father and family patriarch Keith Cyrus, a former head of the Deschutes County Planning Commission - have already invested a considerable sum in their Aspen Lakes community, a development perched on post-card-perfect property that looks suspiciously like many of the region's other destination resorts, complete with a golf course surrounded by million-dollar homes. Except it isn't, at least not technically. The development was approved in the late 1980s after the family purchased roughly 1,100 acres of undeveloped forestlands adjacent to their Cloverdale hay and potato farm.
Now fully built out at roughly 115 lots, the Cyruses would like to expand their development onto an adjacent 500 acres that includes the aforementioned meadow, which would be set aside for protection.
At this point the family doesn't have any concrete plans for the expansion, but Cyrus said it would likely include about 500 homes, but no more golf courses, and a green building approach. What they don't want is another gated resort that's inaccessible and unattractive to families.
Still, the preliminary proposal has drawn plenty of opposition, some from some of the people who bought homes from the Cyruses in Aspen Lakes. After several years of saying no to the plan, the county is again seriously weighing whether to open the door for an expansion at Aspen Lakes even as it's trying to reduce the number of acres dedicated to resort development.
While the Cyrus family is quick to point out that its situation is unique, confoundingly so for county land-use planners, the Aspen Lakes issue underscores just how difficult it is for Deschutes County to rein in destination resort development even in a housing-market-driven recession. Under new resort rules developed by the planning commission, so-called cluster developments like Aspen Lakes would be eligible to reconstitute themselves as destination resorts, increasing the number of allowable homes and overnight accommodations while decreasing the amount of land dedicated to open space.
Owners of cluster developments aren't the only ones who would get more leeway under the new rules endorsed by the county's admittedly pro-property-rights county commission. Some irrigated farmlands and platted subdivisions that have been recorded for legal purposes, but never built upon would all be eligible to apply for a destination resort. (As planners and politicians like to emphasize, this only removes the first hurdle. Actual approval requires applicants to meet a lengthy list of conditions, including mitigating for impacts on traffic and wildlife.)
Ironically, if predictably, the relaxed rules stem from an effort by county commissioners to reduce the number of acres eligible for resorts by as much as 85 percent from the current 112,000 acres that are included in the county's "resort map." But opening up the discussion has turned into a proverbial Pandora's Box with countless meetings dedicated to discussing the finer points of county resort code. The result, which is supported only in part by county staff, is a broad referendum that expands landowners' resort rights.
Planning commissioner Chris Brown said the commission, which serves as an appointed advisory board to the elected three-member board of county commissioners, is taking its cue from the commissioners whom he said told the planning commission to preserve and protect property rights in the process.
"We don't want to be perceived as running over the top of landowners or steamrolling them. The planning commission is incredibly alert to that because that is our job, so when we heard that (advice) we took that to heart," Brown said.
Perhaps the planning commission's most significant contribution to the proposed resort law re-write is a grandfather clause that would allow landowners to essentially overrule any decision to remove them from the county's resort map, even if they don't meet any of the actual approval criteria.
Under a recommendation that the commission adopted in December, any landowner who is removed from the map would have to be notified of the decision and then allowed the opportunity to stay on the map if he or she so desired by notifying the county in writing. After further review, however, the planning commission decided to go a step further and adopted a second recommendation earlier this year that would essentially grandfather everyone on the existing map. It requires landowners to notify the county only if they want to be removed from the map.
The planning staff is endorsing the former rather than the latter approach, which planners acknowledge could have the effect of nullifying the overall goal of reducing the total amount of acres on the map.
Resort critics have been vocal about their concerns, which they say underscore the county's inability to manage resorts at any level.
"All of this is totally unprecedented, allowing property owners to decide whether or not they are covered by the law is kind of a unique approach to land use regulation," said Paul Dewey, a local land use attorney who helped found the watchdog group Central Oregon Landwatch.
Not surprisingly, Dewey is skeptical of the planning commission's stated rationale for developing the grandfather clause, namely that the county would be subject to a takings claim under Measure 49 if it removed someone from the map who didn't want to be excluded. A successful Measure 49 challenge would force the county to pay out any lost value that landowners see as the result of the rule change - in other words, the difference in value between a marginal piece of farmland and land that is theoretically eligible for resort development.
"My concern is that out of their caution about whether or not they might be taking anybody's rights away, they might be creating new rights for these people who don't currently exist," Dewey said.
Dewey is confident that a Measure 49 takings claim wouldn't apply in the case of a resort map change. Planning staffers say they aren't sure since lawyers have argued it both ways and the courts have yet to weigh in. Cyrus, who has been tracking the county's deliberations closely, is confident that any decision to further restrict his family's development rights would constitute a takings under Oregon law. He's provided an opinion from the state legislative counsel that appears to confirm that analysis, but also comes with a disclosure that it's not binding or intended for any purpose other than to provide information to state legislators. County Planner Peter Gutowsky said he's aware of the opinion, but said it doesn't necessarily apply to the current situation. He points out that any legal advisory should come from the county's lawyers, not the legislature's attorneys.
Ultimately, though, the county commissioners will have to make a political decision: do they want to follow through on their initial rationale to reduce and clean up the map, or do they want to open the door for more landowners to stake their resort claim? This week the planning commission's recommendations will be considered in the first of what will be a series of meetings and work sessions, culminating in a new map that may or may not bear a striking resemblance to the admittedly flawed blueprint they already have.
In the meantime, Cyrus and his family will be waiting and weighing their options, including one that they don't necessarily want to pursue.
"The reality is we can submit a Measure 49 claim and they can pay us not to do it," Cyrus said.
