2005-701-Order No. 2005-026 Recorded 5/16/2005VIE
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LEGAL COUNSEL
COUNTY r
NANCYUBLANKENSHIP,F000NTY CLERKS Y 2005'701
COMMISSIONERS' JOURNAL 05/162005 02;47;44 PM
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For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize David and Janice Turner * ORDER NO. 2005-026
to Use the Subject Property as Allowed When
They Acquired the Property
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, David and Janice Turner have made a timely demand for compensation under Measure 37
for a reduction in value to their property at 22235 Bear Creek Road, Bend, 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;
1. On December 8, 2004, the Turners filed a Measure 37 claim with the Community Development
Department.
2. Claimants' property at 22235 Bear Creek Road, Bend, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 22235 Bear Creek Road, Bend, Oregon that were not already in effect until after April 15,
1999, 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 David and Janice Turner are the current
owners of the subject property described in Exhibit "B," having acquired it and continuously
owned it since April 15, 1999.
PAGE 1 OF 3- ORDER NO. 2005-026, 05111105
5. The Board concurs with the Administrator's report that the current regulation DCC 18.16.055
applied to the subject property, would not permit a subdivision on this subject property. The
current regulation is a land use regulation which is not exempt from Measure 37 claims.
6. The Board concurs with the Administrator's report that an application for a subdivision 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.
7. The regulation DCC 18.16.055 was in effect at the time Claimants acquired the property
The Board concurs with Administrator's report that claimant has demonstrated that domestic
water, septic, and road access for the desired use 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 eight additional buildable lots from the subject property would be a
substantial amount of reduction in fair market value if the regulations at the time Claimants
acquired the property allowed that development..
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 Turner claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply zoning and nonexempt land use regulations to the
subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37.
Claimants are hereby authorized to use the subject property as permitted at the time they acquired the property.
Claimants may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time they acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect on April 15, 1999.
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.
PAGE 2 OF 3- ORDER NO. 2005-026, 05/11/05
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.
l /j-,4'
DATED this / 'day of , 2005.
BOARD OF COUNTY CO MISSIONERS
OF DESCHUTES COUNTJ~ OREGON
D
ATTEST: ACH ` ALY, mmissi
Recording Secretary ENNIS R. LUKE, Co ission(
PAGE 3 OF 3- ORDER NO. 2005-026, 05/11/05
4
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TO: Board of County Commissioners
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
From: Michael A. Maier, County Administrator
DATE: May 5, 2005
RE: Measure 37 Claim - David and Janice Turner
22235 Bear Creek Road
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's 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 when Measure 37 was in lawful
effect. Claimant has not paid the filing fee and the County's official demand form has not been submitted.
The property, shown on the attached map, is computed by GIS at 9.44 acres (see attached) and the tax
Turner, May 3, 2005 Page 1
assessment is based on 9.75 acres. The current zoning is Exclusive Farm Use, Tumalo/Redmond/Bend
(EFUTRB) with a farm use minimum lot size. The claimant's desired use is an 8-lot subdivision. The
following is an analysis of the evidence in the record on the elements of this Measure 37 claim
Current Owner - David J. and Janice M. Turner on a Trust Deed
Claimant presented a copy of a Warranty Deed showing that title is vested in these owners and recorded
at Vol. 1999, p. 18710 of Deschutes County records dated April 15, 1999. Staff has confirmed that the
deed is so recorded.
Owner Date of Acquisition - April 15, 1999
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 first date of the current owners' acquiring an interest is the date of the recorded Warranty Deed.
Current owner, Janice Turner, is the former Janice Frazier, daughter of Earl R. and Arla B. Frazier, as
shown on her birth certificate in the record. Earl and Arla Frazier acquired the property in 1957 and
owned it continuously until they sold it to the Turners in 1999.
Restrictive Regulation - DCC18.16.055 requirement for 23 acres of irrigated land for a partition.
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.
Turner, May 3, 2005 Page 2
The Claimant has identified only the EFU zoning as the land use regulation restricting the desired use.
This regulation is a county land use regulation, which is subject to Measure 37 claims.
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them.
There is no evidence that Claimant has applied for a land division of the property resulting in the current
zoning being enforced on the subject property. Claimant has not demonstrated that submitting an
application for such a land division would be futile. However, 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 - $750,000 alleged on Claim Form
The ordinance requires that the Claimant provide evidence of the amount of the claim in 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 8 lots
proposed as evidence that domestic water is available.
• Claimant has submitted a letter from CEC as evidence that electricity 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 submitted a map of access from Bear Creek Road.
• Claimant has not submitted an appraisal of the reduction in value or evidence of the reduction in
value that complies with DCC 14.10.040(l).
Assuming Claimant could obtain approval of a subdivision of the property, but not under current EFU
zoning restrictions, the value of Claimant's property for Measure 37 purposes would be substantially
reduced.
Effect of County Waiver - If the Fraziers were the Claimant, then County regulations which were adopted
after they acquired the property, including DCC 18.16.055, would be vulnerable to challenge under
Measure 37, and might be waived by the County. Such a waiver might have enabled them to obtain
Turner, May 3, 2005 Page 3
approval of a subdivision. However, Measure 37 clearly allows the County to waive its non exempt land
use regulations only back to the date the current owners, not family members, acquired the property:
"(8) Notwithstanding any other state statute or the availability of funds under
subsection (10) of this act, in lieu of payment of just compensation under this act,
the governing body responsible for enacting the land use regulation may modify,
remove, or not to apply the land use regulation or land use regulations to allow
the property owner to use the property for a use permitted at the time the owner
acquired the Property, (emphasis added)
11(c) "Owner" is the present owner of the property, or any interest therein."
Conclusion and Recommendation
The present owners of the property have submitted a claim pursuant to Measure 37 which demonstrates
eligibility for their use of the subject property based on non exempt land use regulations in effect on April
15, 1999, the date they acquired the property. The zoning of the subject property at the time was the
same as the current zoning and DCC 18.16.055 was in effect at that time. There is evidence in the record
that some additional development on the subject property would be feasible for available domestic water,
sanitary waste disposal and road access. Therefore, the desired use of an 8 lot subdivision, while
feasible, seems to be prevented by the zoning that was in effect at the time the current owners acquired
the property.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving the nonexempt County land use regulations which were not in effect until after
April 15, 1999, to allow the owner to use the property in a manner permitted at the time the owner
acquired the property. In essence, the County would not apply any land use regulations to the Claimant's
property which were not in effect when the Claimants acquired the property. This waiver is not a
development permit. Claimant must apply for development of any use which the regulations in effect on
April 15, 1999 would allow.
Turner, May 3, 2005 Page 4
EXHIBIT B
A PORTION OF LOT 2, BEING THE NWI/4NE1/4 OF SECTION 6, TOWNSHIP 18 SOUTH,
RANGE 13 EAST OF THE WILLAMETTE MERIDIAN; DESCRIBED AS FOLLOWS. BEGINNING
AT THE N1/4' CORNER OF SECTION 6, TOWNSHIP 18 SOUTH, RANGE 13 E. W. M.,
SAID 1/4 CORNER BEING EAST 2633.4 FEET FROM THE NW CORNER OF SECTION 6 AS
RE SET; THENCE EAST 8.24.4 FEET ALONG THE NORTH LINE OF SECTION 6, SAID
NORTH LINE BEING THE CENTERLINE OF A 40 FOOT ROAD RIGHT-OF-WAY; THENCE
SOUTH 528.4 FEET; THENCE WEST 824.4 FEET; THENCE NORTH 528.4 FEET TO THE
POINT OF BEGINNING.
Order No. 2.005-026; Turner
