2005-700-Order No. 2005-023 Recorded 5/16/2005REVIE ja
a~ 4
LEGAL COUNSEL
DESCH FICIAL NNANCYUBLANKENSHIPTES COUNTY CLERKS vu 20oyN7y0
COMMISSIONERS' JOURNAL 0511611405 A94717 PM
III I~VNI~IIIIU~
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Eugene and Barbara
Prete to Use the Subject Property as Allowed
When They Acquired the Property
*
* ORDER NO. 2005-023
WHEREAS, On November 2, 2004, the voters of the State of Oregon approved Ballot Measure 37
which added provisions to Oregon Revised Statutes (ORS) Chapter 197 to require, under certain circumstances,
payment of just compensation to landowners if a government land use regulation reduces property value. In lieu
of just compensation, Ballot Measure 37 authorizes the governing body of a local government to modify,
remove or not apply the land use regulation, and
WHEREAS, Eugene and Barbara Prete have made a timely demand for compensation under Measure
37 for a reduction in value to their property at 67955 Cloverdale Road, Sisters, Oregon due to regulations which
took effect after they acquired this property, and
WHEREAS, section 8 of Measure 37 authorizes the Board, as the governing body responsible for
adoption and enforcement of County regulations, to not apply the identified land use regulation that restricts the
owner's use and reduces the value of the property; and
WHEREAS, the Board has received the report and recommendation of the County Administrator as
required by DCC 14.10.090; and
WHEREAS, the Board has considered the Administrator's report and the evidence presented by the
parties at a Board meeting as required by DCC 14.10.090; and
WHEREAS, the Board makes the following findings of facts and conclusions;
On December 2, 2004, the Pretes filed a Measure 37 claim with the Community Development
Department.
2. Claimants' property at 67955 Cloverdale Road, Sisters, Oregon is within Deschutes County.
3. The County Administrator has recommended that the current zoning for the subject property at
67955 Cloverdale Road, Sisters, Oregon not be enforced in lieu of payment of just
compensation to claimant. The Administrator's report is attached and incorporated by reference
into this Order as Exhibit "A."
4. The Board concurs with the Administrator's report that Eugene and Barbara Prete are the
current owners of the subject property described in Exhibit "B," having acquired it and
continuously owned it since October 9, 1990.
5. The Board concurs with the Administrator's report that the current zoning for the subject
property is EFU, which would not permit a dwelling on this subject property. The current
zoning is a land use regulation which is not exempt from Measure 37 claims.
PAGE 1 OF 3- ORDER No. 2005-023, 05/11/05
6. The Board concurs with the Administrator's report that an application for a dwelling on the
subject property would be denied if the current zoning were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimant's property would be
futile. Claimants did apply for a nonfarm dwelling which was denied in 2001.
7. The zoning at the time Claimants acquired the property was EFU-20 zoning, which allowed
"dwellings and other buildings customarily provided in conjunction with farm use as defined in
ORS 215.203(2)(a)."(DCC, 4.040)
The Board concurs with Administrator's report that Claimant has demonstrated that domestic
water, septic, and road access for the desired use of a farm-related dwelling on the subject
property are feasible. Therefore, there is substantial evidence that the basis for the alleged
reduction in value is feasible for water, septic and road access. Despite the lack of a precise
amount of reduction in value, the loss of the ability to add a dwelling on the subject property
would be a substantial amount of reduction in fair market value.
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby determines, based on these findings and conclusions and the
Administrator's report in Exhibit "A," that the Prete claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply current EFU zoning to the subject property described in
Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimants are hereby authorized
to use the subject property as permitted at the time they acquired the property. Claimants may apply for a farm
use dwelling of the subject property consistent with the EFU-20 zoning in effect at the time they acquired the
property. That use shall be permitted if the subject property fully complies with the regulations in effect on
October 9, 1990, including the building height and setback requirements that may affect their neighbors' views.
Section 3. This Order is a waiver of a non-exempt County land use regulation from a property
determined to be claim eligible as defined in DCC 14.10.020(0)
Section 4. A STATE OF OREGON WAIVER MAY BE REQUIRED FOR THE DEVELOPMENT OR
USE OF THE SUBJECT PROPERTY. THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS
SPECIFIED ABOVE. DESCHUTES COUNTY LACKS THE AUTHORITY TO WAIVE ANY STATE
REGULATIONS OR LAWS. STATE LAWS AND REGULATIONS MAY APPLY TO THE USE OF THE
PROPERTY DESCRIBED HEREIN, AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE
SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON.
Section 5. This order does not affect any land use regulations of the State of Oregon. If the use allowed
by Section 2, above, remains prohibited by a State of Oregon land use regulation, the Planning Director shall
send notice of the Board's decision to the Director of the Department of Land Conservation and Development.
The notice shall include a statement that the County will not accept an application for a building permit related
to the newly allowed use on the property until the earlier of the following events: (i) notice by the Department of
Land Conservation and Development that it concurs with the Board's decision, or (ii) a date 180 days from
issuance of the Board's decision where no response is made to the notice by the Department of Land
Conservation and Development.
Section 6. This Order shall be recorded in the Deschutes County Deed Records together with portions
from the deed or other instrument in Exhibits A and B sufficient to identify the subject property for recording
purposes.
PAGE 2 of 3- ORDER No. 2005-023, 05/11/05
DATED this i/ may of , 2005.
ATTEST:
i
Recording Secretary
BOARD OF COUNTY C MMISSIONERS
OF DESC TES CO Y, OREGON
TO DEWOLF, C
NMI DAL ommissioner
S R. L Commissioner
PAGE 3 of 3- ORDER No. 2005-023, 05/11/05
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6570 Fax (541) 385-3202 - www.deschutes.org
TO: Board of County Commissioners DATE: May 5, 2005
From: Michael A. Maier, County Administrator W"&
RE: Measure 37 Claim - Eugene and Barbara Prete
67960 Cloverdale Road, Sisters
Introduction
The County has processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking at least two times that the Claimant furnish more evidence to complete or clarify the
claim, and preparing this report and recommendation under DCC 14.10, the Measure 37 ordinance. The
County's claims process has been amended to recognize that less precise evidence of value may be
sufficient to evaluate claims, since there are currently no county funds available for payment of
compensation. Also, the ordinance provides further opportunities for affected neighbors to present
evidence and testimony at the Board meeting when these claims are considered.
This report and recommendation is intended to be a summary and evaluation of evidence in the record.
The report may be attached to the Board's Order which decides Measure 37 claims as a factual basis for
the Order. Any factual changes or additions to this report from testimony or other evidence can be made
part of the Board Order. Claimants and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, claimants must
provide evidence that the desired use of the property, which may be allowed by a waiver of County
regulations is feasible, i.e., not prevented by physical, utility or other development limitations of the site.
Report and Recommendation - DCC 14.10.090
This is my report and recommendation on this Measure 37 claim received December 2, 2004 when
Measure 37 was in lawful effect. Claimant paid the filing fee and submitted an official demand form. The
property, shown on the attached map, is estimated to be 20 acres. This lot was created by partition in
Prete, May 3, 2005, Page 1
1990 as parcel one of partition plat no. 1990-43. The current zoning is Exclusive Farm Use with
regulations at DCC 18.16.050(B) that detail under what circumstances a farm-related dwelling may be
sited on high value farm land. The claimant's desired use is a farm-related dwelling on the property. The
following is an analysis of the evidence in the record on the elements of this Measure 37 claim.
Current Owner - Eugene and Barbara Prete, sole owners
Claimant presented a copy of a warranty deed showing that title is vested in their names and recorded at
Vol. 221, p.0312 of the deed records dated October 1990. Staff has confirmed that the deed is so
recorded with no other owner's interest recorded.
Owner Date of Acquisition - October 9, 1990
The date of acquisition by the current owner is the relevant date for Board consideration of waivers under
section (8) of Measure 37. The compensation section of Measure 37, section (6), uses the acquisition
date of a family member to determine the extent of reduction in value for compensation. Since the County
has no funds budgeted for payment of compensation, waivers that are issued by the County are limited
by section (8) of Measure 37 to county land use regulations that were adopted after the later acquisition
date of the current owner. If a waiver is granted as to county land use regulations, which were adopted
after the current owner's acquisition date, no compensation is due, even if the prior family member held
the property for many years. While this may seem inconsistent, the measure was, evidently, written to
encourage waivers of local and state land use regulations.
The date of the current owner acquiring an interest is the date of the recorded warranty deed.
Restrictive Regulation - EFU zoning, DCC18.16.050(B)
Under the terms of the ordinance, the claimant must identify county land use regulations that prevent the
claimant from using the property in a way that he or she otherwise could have used the property at the
time the property was acquired. The claimant must also show that these identified regulations cause a
loss of property value.
Prete, May 3, 2005, Page 2
The claim identifies the zoning and farm related dwelling regulations as the land use regulation restricting
the desired use. These regulations are county land use regulations, which are subject to Measure 37
claims.
The 1979 EFU-20 zone in effect on October 9,1990 permitted "dwellings and other buildings customarily
provided in conjunction with farm use as defined in ORS215.203(2)(a), "(Deschutes County Code ("DCC")
4.040(2). That statute in 1979 defined "farm use" less elaborately as "currently employed" in farm uses.
There are three cases in the 1990 period approving farm-related dwellings.
Since 1990, criteria for a farm-related dwelling, like those for nonfarm dwellings, became progressively
more restrictive. In Ord. 91-038, DCC 4.040(2) was changed to the current DCC 18.16.020 and required
a Conditional Use Permit, and that the land be "currently employed in farm use" in order for a land owner
to be allowed to place a farm dwelling on a parcel zoned EFU. In 1992, Deschutes County settled a
Department of Land Conservation and Development ("DLCD") Enforcement Order petition by amending
the Deschutes County farm-related use code provisions. The primary focus of that Enforcement Order
Petition was DLCD's requirement that "nonfarm dwelllings" be allowed only on land which was not
productive for farm use. The settlement did not result in a DLCD finding that 1990-era farm related
dwellings violated state law.
In Ord. 92-065, DCC 18.16.050(B) was amended such that the standards for farm-related dwellings in the
EFU zone be required to show that the property is "currently employed" as evidenced by a "farm
management plan" showing "day to day... principal use for farm use." Finally, in Ord 95-007, which was
adopted to comply with new LCDC rules, including new definitions of "high-value farmland" based on soil
classifications (18.04.030) and the $80,000 income test (18.06.050 B.1.) Ostensibly because the
Claimants knew they could not meet the $80,000 income test, the Claimants' submitted in 2001 a CUP
application was for a nonfarm dwelling instead of a farm-related dwelling.The county rendered a decision
on the 2001 CUP application denying claimant's nonfarm dwelling, finding that the Claimants' property
consists of soil classified such that the entire property is, as of the 1992 state rule and County code
amendments.
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance that restricts the current owner's use be "enforced" against them.
Prete, May 3, 2005, Page 3
Claimant has applied for a non-farm dwelling which was denied in CU-01-79 (2001).County ordinances
adopted in response to State rules on farm related dwellings would make submitting an application for a
farm related dwelling futile. This report confirms that such an application for the desired use would violate
the current zoning and be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $175,000 alleged on Claim Form
Under the terms of the ordinance the claimant must provide evidence of the amount of the claim in dollars
based on the alleged reduction in the fair market value of the property resulting from the enforcement of
the County's land use regulation.
• Claimant has submitted a letter from Avion Water Company stating its ability to serve the
proposed dwelling.
• Claimant has submitted a water well report from his property as additional evidence that domestic
water is available.
• Claimant has submitted a site evaluation for septic permit approval on his adjacent property as
evidence that septic approval is feasible in the area.
• Claimant has access from Cloverdale Road and for the proposed dwelling.
Claimant has not submitted an appraisal of the reduction in value or evidence of a precise reduction in
value.
However, since current zoning would not allow Claimant's to obtain a residential building permit, the value
of Claimant's property for Measure 37 purposes has been reduced.
Neiighbor's Evidence - Neighbor's Fraga and Daday have written letters of support. Neighbor Lesa
Angelo's March 8 letter alleges that her property across the street would be devalued by loss of view if a
dwelling were located directly across from her existing house. Ms. Angelo has indicated a desire to
address the Board on this issue.
In response to this concern, staff has reviewed the regulations that were in force on October 9, 1990 to
determine if siting criteria existed at that time. If a waiver is granted in this case, Claimants' acquisition
date would determine which regulations would apply to the proposed farm related dwelling. The height
limitation standard in current DCC 18.16.050(B)(4) was in effect at that time and requires that the
Prete, May 3, 2005, Page 4
applicable building height limit would be 30 feet. The setbacks would be 40 feet front, 25 feet side and 25
feet rear. DCC 18.16.070.
Based on this neighbor's concern and this research, these 1990 limitations on the location of a farm
related dwelling, if approved, have been included in the attached form of order for the Board's
consideration.
Effect of County Waiver - remove farm dwelling restrictions enacted since October 9, 1990.
Claimant has explained in his materials that a County waiver of application of the current DCC
18.16.050(B) would allow him to seek a permit for a farm-related dwelling on the subject property
consistent with regulations in effect on October 9, 1990, Claimant's date of acquisition of this property.
The zoning in effect at the time was EFU-20, allowing a dwelling customarily provided in conjunction with
farm use. A County waiver of the current zoning does not waive the requirement that Claimant
demonstrate compliance with earlier adopted County regulations in a permit application. In that
application process the evidence about and qualification for a farm-related dwelling can be resolved
consistent with the applicable 1990 regulations.
Claimants who receive a waiver must use the current process to seek the needed development permits
based on the zoning in place at the time the current owners acquired the property. Except in a rare case,
the current process regulations for handling permits are not regulations that reduce value. Therefore,
process regulations are not waived.
Conclusion and Recommendation
The current owner of the subject property has submitted a claim pursuant to Measure 37 which
demonstrates eligibility for their use of the subject property based on land use regulations in effect on
October 9, 1990, the date they acquired the property. The regulations applicable to this property at that
time allowed a farm related dwelling if the property is in farm use. There is evidence in the record that
development of one farm related dwelling, the desired use, would be feasible based upon available
domestic water, sanitary waste disposal and road access. There is some amount of reduction of value
because a dwelling would be allowable. Claimant estimates this reduction in value at $345,000, his
Prete, May 3, 2005, Page 5
market value estimate of a market-ready lot with the dwelling constructed. This does not seem to take into
consideration development costs.
My recommendation is that the Board approve Claimant's waiver of the farm dwelling regulations enacted
since October 9, 1990 in the form of Order attached. This Order would have the effect of waiving the
current County land use regulations, in essence, to allow the owner to apply for use of the property in a
manner permitted at the time the owner acquired the property. The County would not apply the current
regulations to the Claimant's property, but would apply the regulations which were in effect when
Claimants acquired the property. This waiver is not a development permit. Claimant must apply for a
permit under regulations in effect on October 9, 1990.
Prete, May 3, 2005, Page 6
EXHIBIT B
PARCEL ONE (1) OF PARTITION PUT NO. 1990.43. BEING A PORTION OF THE SOUTHEAST
QUARTER (SE 1/4) OF SECTION THIRTEEN X13) AND THE NORTHEAST QUARM (NE 1/4) OF
SECTION TWENTY-FOUR (24). TOWNSHIP FIFTEEN (15) SOUTH, RANGE TEN (10), EAST OF
THE VILIAMETaZ MERIDIAN.
Order No. 2005-023; Prete
JE..04 G ONA
I N 0 N - S
L e g a 1 C e n t e r
December 2", 2004
Ka facsimile and hand delivery
Deschutes County Board of Commissioners
Deschutes County Administration Building
1130 NW Harriman St
Bend, Oregon 97701
RECEIVED
BY:
DEC 0 2 2004
DELIVERED BY:
RE: Claim for Compensation Pursuant to Ballot Measure 37 (2004) - Eugene and Barbara
Prete
To Whom It May Concern:
This letter constitutes written demand pursuant to Section (4) of Ballot Measure 37 (2004) for
compensation for the property located at:
67955 Cloverdale Road
Sisters, Oregon 97759
Deschutes County Assessor's map #15-10-24, tax lot 406
Current zoning: Exclusive Farm Use
Zoning at the Time of Acquisition: Exclusive Farm Use
which has been owned (as that term is defined by Ballot Measure 37 (2004)) by Eugene and
Barbara Prete since October 9t",1990. A copy of the deed is attached as Exhibit 1 to this letter.
In 1991, Deschutes County adopted and enforced Deschutes County Code §18.16.040 and
Deschutes County Code § 18.16.050, which, as applied and enforced against my clients, have
prevented the Pretes from building a dwelling in conjunction with a farm use on their property, a
right they had prior to the adoption of the aforementioned restrictions.
The Pretes have applied for permission to construct a home on their property, but the County
denied their request, even though the County's hearings officer admitted that at the time the
Pretes purchased their property they could have built their home. A copy of the County's denial
is attached as Exhibit 2 to this letter. These restrictions remains in force and effect as of the date
of this letter. _
1;14 b b~ SCAB;N!E- Mailing Address: P.O. Box 230637 • Tigard, OR 97281-0637
Street Address: 8255 S. W. Hunziker Road, Suite 200 - Tigard, OR 97223
(503) 620-0258 -FAX (503) 439-6891 • Website: www. oia. org
Ballot Measure 37 (2004)le'mand Letter
Eugene and Barbara Prete - Deschutes County
November 30, 2004
Page 2
Accordingly, based upon information and belief, the offending ordinances have caused the fair
market value of the Prete's property described above to decrease approximately $383,000. This
letter constitutes a written demand for compensation for the loss of fair market value of the
property described above, pursuant to Section 4 of Ballot Measure 37 (2004).
Pursuant to Ballot Measure 37 (2004), you have 180 days from the date of this letter to provide
compensation for the loss of fair market value of the property described above.
To the extent Deschutes County asserts the restrictions causing the loss of value of the Pretes'
property results from adoption of an statute, goal, administrative rule, or as a result of an
enforcement order or other administrative action taken by the State of Oregon, a department,
agency, or commission of the State of Oregon, a copy of this letter is provided to the State of
Oregon and constitutes written demand for compensation pursuant to Section 4 of Ballot
Measure 37 (2004).
In the alternative, the offending statute(s), regulation(s), and/or ordinance(s), may be waived and
uses may be allowed on the property which could have occurred at the time the property was
acquired by the Pretes. Specifically, the Pretes wish to put the property to the following use:
The Pretes will be able to construct one dwelling in conjunction with a farm use, so the
Pretes can live on their property and care for their horses. At the time the Pretes acquired
the property, they could have freely transferred this right. Accordingly, the rights restored
to the Pretes must also be freely transferrable.
Thank you in advance for your prompt attention to this matter.
Very truly yours,
Ross Day.
Of Attorneys fo ugene
and Barbara Prete
cc: Clients
Oregon Land Conservation and Development Commission
Oregon Department of Land Conservation and Development
Oregon Department of Administrative Services
Oregon Department of Justice
fti ~ •
rw
_
4~
f
•
J ...T
w A
P
A
Aw
a
N
et
~
D
8
OZ
p ,
1
r FARTHING LANE
~
w +nn
R1
~rn
F o
~yo
Q
C ~
w
4~
O
: it
•»s a V • W 4
2
a
~ ~ I
It
r
` w f ,
tl
'
I
0w
=
I
r•=w
.
Ins
O
x I I I
• j l r,~„
j r I I
i. ;
a e
$
o
y
It
ro n...-0
v t A...
a
fO
»~~»r
fif `-~%r~~
PARTITION PLAT NO 1990-43 a
Sn Mao 15 11
N
O
A