2005-702-Order No. 2005-025 Recorded 5/16/2005REVI ED
Ci.
LEGAL COUNSEL
DESCHUTES COUNTY OFFICIAL RECORDS CJ 20 ,zo
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL
11111111„.,111111111 05/16/1005 01;47;51 PM
2005-70
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 Marie and Laura Harry * ORDER NO. 2005-025
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, Marie and Laura Harry have made a timely demand for compensation under Measure 37
for a reduction in value to their property at 5170 SW Wickiup Avenue, Redmond, 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 2, 2004, the Harrys filed a Measure 37 claim with the Community Development
Department.
2. Claimants' property at 5170 SW Wickiup Avenue, Redmond, Oregon is within Deschutes
County.
3. The County Administrator has recommended that the current zoning for the subject property at
5170 SW WIickiup Avenue, Redmond, 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 Marie and Laura Harry are the current
owners of the subject property described in Exhibit "B," having acquired it and continuously
owned it since November 9, 1971.
PAGE I OF 3- ORDER NO. 2005-025, 05111105
The Board concurs with the Administrator's report that the current zoning for the subject
property is EFU, which would not permit a subdivision on this subject property. The current
zoning 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. Claimants assert that there was no zoning at the time they acquired the property. .
The Board concurs with Administrator's report that Claimant has not demonstrated that
domestic water, septic, and road access for the desired use of a subdivision on the subject
property are feasible. Therefore, there is not 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 subdivide 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 Harry 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
subdivision of the subject property consistent with the 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 November 9,
1971, 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. 2005-025, 05111105
DATED this / /day of , 2005.
ATTEST:
(T~ &ktxL-
Recording Secretary
PAGE 3 OF 3- ORDER NO. 2005-025, 05111105
BOARD OF COUNTY COMMISSIONERS
OF DESC TES CO TY, OREGON
TO DEWOLF,
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
RE: Measure 37 Claim - Marie and Laura Harry
5170 SW Wickiup Avenue. Redmond
Introduction
The County has processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking twice for 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 claim 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 who have presented evidence and may present 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 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 to be allowed by 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 County demand
form. The property, shown on the attached map, is estimated to be 80 acres. The current zoning is
Harry, May 3, 2005, Page 1
Exclusive Farm Use (EFU) with a farm use minimum lot size. The claimant's desired use is a subdivision
of the property up to eight lots of ten acres each. The following is an analysis of the evidence in the
record on the elements of this Measure 37 claim.
Current Owner - Marie and Laura Harry
Claimants presented a copy of a warranty deed showing title is vested in their name and recorded at Vol.
228, p. 659 of the deed records, dated November 9, 1971. Staff has confirmed that the deed is so
recorded with no other owner's interest recorded.
Owner Date of Acquisition - November 9, 1971
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.
The date of the current owners acquiring an interest is November 9, 1971, the date of the recorded
warranty deed from Elizabeth Harry, Grantor, to Alice (deceased), Theodore (deceased), John
(deceased), Marie, Rosa (deceased) and Laura Harry, Grantees. The Chain of Title Report submitted with
this claim begins with a Bargain and Sale Deed dated November 20,1936 and indicates that title to the
property was vested in the Harry family prior to that date. The current form of ownership, the Harry Family
Revocable Trust, received the property by a Bargain and Sale Deed from Alice (now deceased), Marie
and Laura Harry on August 7, 2003. Marie and Laura Harry are the surviving grantees under the
warranty deed dated November 9, 1971. Transfers between these grantees and the Harry Family
Revocable Trust in 2002 and 2003 are changes in the form of ownership, which these grantees are
Harry, May 3, 2005, Page 2
authorized to accomplish. The other named grantees, listed as owners since 1971, Alice, Theodore,
Rosa, and John Harry are deceased. Therefore the Claimants have continuously owned the property
since 1971.
Restrictive Regulation - EFU zoning
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.
The claim form identifies the EFU zoning as the primary land use regulation restricting the desired use.
This regulation is a county land use regulation, which is subject to Measure 37 claims. The form of order,
attached, provides for the Community Development Director to identify any other restricting regulations
(nonexempt) and to apply the nonexempt regulations in effect on November 9, 1971.
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.
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 alleged that submitting an application for
such a land division under current zoning would be 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 - $1,000,000 alleged on Claim Form
The ordinance requires that the claimant 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 an opinion letter from Armando Soliz as evidence of the reduction in
value of this property by the application of the current EFU zoning.
• Claimant has submitted no evidence that domestic water is available.
Harry, May 3, 2005, Page 3
• Claimant has submitted no evidence that septic approval is feasible in the area.
• Claimant has submitted no evidence about the feasibility of access from public roads and for the
desired use.
• Claimant has not submitted an appraisal of the reduction in value or evidence of a precise
reduction in value.
• 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 - remove EFU zoning restriction
Claimants have explained in their materials that a County waiver of application of the current EFU zoning
would allow them to seek a subdivision of the subject property consistent with the zoning in effect on
November 9, 1971, claimant's date of acquisition of this property. The zoning in effect at the time would
allow a subdivision for as many as 8 lots of a minimum of 10 acres each from this 80-acre parcel. A
County waiver of the current zoning does not waive the requirement that claimant demonstrate
compliance with earlier zoning in a subdivision application. In that subdivision application process any
conflicting evidence about the property acreage and qualification for a subdivision, including the number
of allowed lots, can be resolved consistent with the applicable 1971 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 procedural requirements for handling permits are not regulations that reduce value. Therefore,
the County's procedural regulations are not waived.
Conclusion and Recommendation
The current owners of the subject property have submitted a claim pursuant to Measure 37 which
demonstrates Claimant's eligibility for their use of the subject property based on land use regulations in
effect on November 9, 1971, the date they acquired the property. The zoning of this property at that time
would have allowed a subdivision of an 80-acre parcel into 8 lots of 10 acres each. There is no evidence
in the record that development of 8 lots, the desired use, would be feasible based upon available
Harry, May 3, 2005, Page 4
domestic water, septic and road access. There is evidence in the record that if the property is large
enough to meet the subdivision requirements in effect in 1971, that there is some amount of reduction of
value because additional lots would be created. Claimants estimate this reduction in value at $1,000,000,
their market value estimate is based on 8 market-ready lots compared to a sale of the current 80 acre
parcel with EFU zoning. This estimate amount does not seem to take into consideration development
costs.
My recommendation is that the Board approve Claimant's waiver of the EFU zoning in the form of Order
attached. This Order would have the effect of waiving the current County land use regulations to allow the
owners to apply for use of the property in a manner permitted at the time the owners acquired the
property. In essence, the County would not apply the current zoning to the Claimant's property, but would
apply the zoning which was in effect at the time Claimant acquired the property. This waiver is not a
development permit. Claimants must apply for a subdivision under November 1971 zoning.
Harry, May 3, 2005, Page 5
EXHIBIT B
The North Half of the Northeast Quarter (NI/2 NE 1 /4), Section 25, Township 15 South,
Range 12, East of the Willamette Meridian, Deschutes County, Oregon.
EXCEPTING THEREFROM that portion conveyed to Irene O. Stookey and Agnes Urban
Heiser by deed recorded June 4, 1976 in Volume 232, Page 315, Deed Records, described as
follows: A parcel of land situate in a portion of the Northwest Quarter of the Northeast
Quarter (NWI/4 NE1/4) of Section 25, Township 15 South, Range 12, East of the
Willamette Meridian, Deschutes County, Oregon, lying Westerly of centerline of a County
Road (SW 58u' Street) as constructed and now more particularly described as:
Commencing at a 1" pin at a Quarter corner common to said Sections 24 and 25, Township
15 South, Range 12 East, the initial point and true point of beginning; thence North
89°54'40" East along the Northerly line of said Section 25,145.91 feet to the centerline of
said SW 58`h Street as constructed; thence South 00°24'36" West along said road centerline,
1318.07 feet; thence South 89°21'08" West along the Southerly line ofsaid Northwest
Quarter of the Northeast Quarter (NWl/4 NEI/4), 144.85 feet; thence North 00°21'50" East
along the Westerly line of said Northeast Quarter (NE1/4), 1318.10 feet to the point of
beginning.
Order No. 2405-025; marry