2005-703-Order No. 2005-024 Recorded 5/16/2005VIE
LEGAL COUNSEL
DESCHUTES COUNTY OFFICIAL
NANCY BLANKENSHIP, COUNTY
COMMISSIONERS' JOURNAL
II I I III IIIIIIIIIIIIII II III
2 -7
RECORDS
U 7005-703
CLERK vU `YVJ
05/16/2005 02:47:56 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize John Arnett to Use the
Subject Property as Allowed When They
Acquired the Property
* ORDER NO. 2005-024
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, John Arnett made a timely demand for compensation under Measure 37 for a reduction in
value to his property at 5792 NE 5th Street, 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;
On December 2, 2004, John Arnett filed a Measure 37 claim with the Community Development
Department.
2. Claimants' property at 5792 NE 5t" Street, Redmond, Oregon is within Deschutes County.
3. The County Administrator has recommended that the claim is claim eligible and that current
zoning for the subject property at 5792 NE 5`h Street, 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 John Arnett is the current owner of the
subject property described in Exhibit "B," having acquired it and continuously owned it since
March 11, 1969.
5. 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.
PAGE 1 of 3- ORDER No. 2005-024, 05111105
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. There was no zoning ordinance in effect at the time claimant acquired the property.
The Board concurs with the Administrator's report that Claimant has demonstrated that
domestic water, septic, and road access for the desired use on the subject property is 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 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 Arnett 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. Claimant is hereby authorized to
use the subject property as permitted at the time he acquired the property. Claimant may apply for a subdivision
of the subject property consistent with land use regulations in effect at the time he acquired the property. That
use shall be permitted if the subject property fully complies with the regulations in effect on March 11, 1969.
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 N0.2005-024, 05/11/05
DATED this day of 5 2005.
BOARD OF COUNTY CO MISSIONI
OF DESCHUTES COUNT OREGON
TOM DEWOLF, Chair
ATTEST: MICR . ALY,
Recording Secretary D EWNIS R. LUKE, c
PAGE 3 of 3- ORDER No. 2005-024,05/11/05
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
From: Michael A. Maier, County Administrator
DATE: May 2, 2005
?*CJ4 a 77U,
RE: Measure 37 Claim - John Arnett
5792 NE 5th Street, Redmond
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 December 2, 2004 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted an official demand form.
The property, shown on the attached map is estimated to be 110 acres. The current zoning is Exclusive
Arnett, May 3, 2003 Page 1
Farm Use (EFU). The claimant's desired use is a subdivision of the property into approximately 25 lots of
5 acres each. The following is an analysis of the evidence in the record on the elements of this Measure
37 claim.
Current Owner - John Arnett, owner
Claimant presented a Claim of Title Report to John C. and Helen V. Arnett from Western Title and Escrow
Company which indicates a warranty deed showing that title is vested in his name is recorded at Vol.163,
p.500 of the Deschutes County deed records dated March 11, 1969. Two quit claim deeds dated
February 5, 1979 at Vol. 299, p. 845/847 are also indicated. Staff has confirmed that the deeds as
recorded show no other owner's interest. Helen V. Arnett is deceased, as indicated by a copy of a death
certificate in the record.
Owner Date of Acauisition - March 11, 1969
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
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.
Arnett, May 3, 2003 Page 2
The claim form identifies only the current 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 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 not demonstrated 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 - $1,200,000 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 a broker's opinion letter as evidence that domestic water and sanitary
waste disposal septic approval are feasible in the area.
• Claimant has submitted no evidence that septic approval is feasible in the area.
• Claimant has submitted a map (attachment 3), of access from NE 5t' St. (Meithe Road.) as
evidence of available road access for the desired subdivision.
• Claimant has not submitted an appraisal of the reduction in value. Evidence of the reduction in
value that complies with DCC 14.10.040(l) is in the form of January 19 and 25, 2005 letters from
a professional real estate broker estimating the sales value of 25 lots at $4,375,000 less about
$750,000 developments costs= $3,625,000. That compares to a current value of about
$1,300,000.
This evidence is sufficient to demonstrate that County land use regulations which were adopted after
Claimant acquired the subject property have reduced the value of the property.
Arnett, May 3, 2003 Page 3
Effect of County Waiver - remove zoning restriction EFU
Claimant has explained in his materials that a County waiver of application of the current EFU zoning
would allow him to seek a subdivision of the subject property consistent with the absence of zoning
regulations in effect on March 11, 1969, claimant's date of acquisition of this property. A County waiver of
the current zoning does not waive the requirement that claimant demonstrate compliance with earlier
regulations in a subdivision application.
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,
absent evidence that process regulations have reduced market value of the property, these regulations
are not waived.
Conclusion and Recommendation
The current owner of the subject property has submitted a claim pursuant to Measure 37 which
demonstrates Claimant's eligibility for his use of the subject property based on land use regulations in
effect on March 11, 1969, the date he acquired the property. The lack of zoning of his property at that
time would seem to allow the proposed subdivision of 25 lots of 5 acres each. There is evidence in the
record that development of 25 additional lots, his desired use, would be feasible for available domestic
water, and sanitary waste disposal. There is evidence in the record, that there is a significant amount of
reduction of value based on the professional real estate broker's opinion. Claimant estimates this
reduction in value at $1,300,000.
My recommendation is that the Board approve Claimant's waiver of the EFU zoning in the form of the
Order attached. This Order would have the effect of waiving the current County land use regulations to
allow the owner to apply for use of the property in a manner permitted at the time the owner acquired the
property. In essence, the County would not apply the current EFU zoning to Claimant's property, but
would apply any regulations which were in effect when Claimant acquired the property. This waiver is not
a development permit. Claimant must apply for a subdivision using the current procedural regulations
Arnett, May 3, 2003 Page 4
because there is no evidence in the record that such procedural regulations would reduce the value of the
property.
Attached are neighbor's letters. One seeks terms of the waiver order that would establish the perimeters
of the subdivision to be developed. Since the zoning is being waived, the neighbors' concerns regarding
minimum lot size cannot be addressed based on County ordinances. Other comments regarding road
improvements to accommodate increased traffic and public safety can be addressed through subdivision
review provisions.
Arnett, May 3, 2003 Page 5
EXHIBIT B
The South Half of the Northeast Quarter of the Northwest Quarter (S % NE NW the South Half of the
Northwest Quarter of the Northeast Quarter (S h NW NE the Southeast Quarter of the Northwest Quarter (SE
NW and the Southwest Quarter of the Northeast Quarter (SW NE of Section 27, in Township 14 South,
Range 13 East of the Willamette Meridian, EXEPTING a parcel of the above described land, more particularly
described as follows:
In Township 14 South, Range 13 East of the Willamette Meridian, Section 27, beginning at the Southwest comer of
the Southeast Quarter of the Northwest Quarter (SE NW thence Northerly 300 feet along the West line ofsaid
Southeast Quarter of the Northwest Quarter (SE'/, NW Y,); thence Easterly 465.6 feet along a line parallel to the
South line of said Southeast Quarter of the Northwest Quarter (SE'/. NW'/,) thence Southerly 300 feet along a line
parallel to the West line of said Southeast Quarter of the Northwest Quarter (SE NW to a point on the South
line of said Southeast Quarter of the Northwest Quarter (SE'/, NW thence Westerly 465.6 feet along the South
line of said Southeast Quarter of the Northwest Quarter (SE'/, NW to the point of beginning.
ALSO EXCEPTING:
A parcel of land being a portion of the North Half of Section 27, Township 14 South, Range 13 East of the
Willamette Meridian is more particularly described as follows: Beginning at the Northeast corner of said Section
27; thence South 89°55'04" West along the North line of said Section a distance of 1317.06 feet; thence South
00°05'57" West along the East line of the North Half of the Northwest Quarter of the Northeast Quarter (N h NW
NE of said Section 27 a distance of 658.48 feet to the Southeast comer thereof, said comer being the TRUE
POINT OF BEGINNING of this description; thence South 89°54'08" West along the South line of the North Half of
the Northwest Quarter of the Northeast Quarter (N'/2 NW NE and the North Half of the Northeast Quarter of
the Northwest Quarter (N % NE'/, NW of said Section 27 a distance of 1533.05 feet to the intersection of said
South line with an existing wire fence; thence South 89'16'16" East along the existing wire fence line a distance of
1533.58 feet; thence North 01°02'31" West 22.13 feet to the TRUE POINT OF BEGINNING.
TOGETHER WITH:
A parcel of land being a portion of the North Half (N of Section 27, Township 14 South, Range 13 East of the
Willamette Meridian is more particularly described as follows: Beginning at the Northeast corner of said Section
27; thence South 89°55'04" West along the North line of said Section a distance of 1317.06 feet; thence South
00°05'57" West along the East line of the North Half of the Northwest Quarter of the Northeast Quarter (N % NW
NE'/,) of said Section 27 a distance of 658.48 feet to the Southeast corner thereof; thence South 89°54'08" West
along the South line of the North Half of the Northwest Quarter of the Northeast Quarter (N %2 NW NE and the
North Half of the Northeast Quarter of the Northwest Quarter (N % NE NW of said Section 27 a distance of
1533.05 feet to the intersection of said South line with an existing wire fence, said intersection being the TRUE
POINT OF BEGINNING of this description; thence South 89°54'08" West along the South line of the North Half of
the Northeast Quarter of the Northwest Quarter (N %z NE NW of said Section 2 a distance of 1065.88 feet to
the point where said line intersects the Westerly right-of-way line of a county road ]mown as N.E. 5'" Street; thence
North 00°09'50" East along said right-of-way line a distance of 15.38 feet to the point where an existing wire fence
intersects said right-of-way line; thence South 89°16'16" East along said fence a distance of 1,065.92 feet to the
TRUE POINT OF BEGINNING.
Order No. 2005-024; Arnett