The waiver of part of Article 44 of Wallowa County’s land use plan was officially granted Monday by a unanimous vote of the Wallowa County Board of Commissioners to resolve the K& B Family Limited Partnership’s Measure 37 claim against the county.

The final decision Monday came after the commissioners voted on Aug. 24 that they would waive section A and F of Article 44.035 after a written order granting the waiver and findings of fact to support it was finalized, with the aid of legal counsel.

The Aug. 24 hearing was continued from Aug. 22 to give all parties time to review a written draft decision prepared by the county’s newly hired attorney on the case.

The long-delayed decision, however, was somewhat anticlimactic because of a new controversy that arose around the property because of bulldozing work by Steve Krieger last week (see related story on Page A1).

Article 44 is overlay zone (of the state’s mandatory Goal 5) passed in 2002 shortly after K & B became owners of the Marr ranch property south of Joseph to provide an extra layer of protection for the Wallowa Lake moraine. However, only the 20 acres closest to the Old Chief Joseph monument property is covered by Article 44.

The Measure 37 claim was originally filed by attorney Stephen Crew on behalf of the current owner, K& B, and Steve and Paula Krieger on Dec. 24, 2004.

The original claim was for compensation of $1 million for lost market because of a number of land use regulations from the time the Krieger family first obtained interest in the property in 1990.

However, the claim was amended in June to reflect the fact that the county would not pay compensation. Under current interpretation of Measure 37, if compensation is not paid, any waiver of land use regulations affecting value would only date only from the time the current owner acquired the property.

After the Aug. 24 vote, Nez Perce Tribes attorney Geoff Whiting issued the following statement: “If it weren’t for the enormous waste of the County’s time by Mr. Krieger, the resolution of the K&B claim would be a comedy. K& B on the final day of the process literally withdrew every regulation challenged under the claim, down to two sections of one county article, hoping to get at least something waived by the county. And the Commissioners gave that to them, perhaps out of embarrassment. It’s still a poor decision and probably merits appeal as a matter of precedent in other cases – since there was no evidence for even those two sections – but Mr. Krieger did a admirable job over the last eight months of accomplishing essentially nothing.”

Whiting has contended said that while Article 44 addresses protection of cultural and archeological resources, it is only “one layer of the onion,” and they are also protected by state and federal law.

K& B’s local attorney, Rahn Hostetter, denied that the claim had been changed because of lack of merit, but because of the date of ownership. He said the claimant had requested waiver of only Article 44 because it was the only land use regulation passed after K & B’s acquisition of the property that affected its value.

He said the claimant further pared down the claim to the A and F sections because they were the only ones that pertained to the property.

Section A addresses the protection of historic, cultural and archeological resources and wildlife habitat; and Section F, which covers conditional and permitted uses.