2005-726-Minutes for Meeting April 26,2005 Recorded 5/23/2005DESCHUTES COUNTY OFFICIAL RECORDS CJ 10~5~~76
NANCY BLANKENSHIP, COUNTY CLERK Y~I
~i~i~'muiiiAiniu 05/23/2005 03:27:00 PM
DESCHUTES COUNTY CLERK
CERTIFICATE PAGE
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1
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if document is re-recorded.
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(Archived)
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF ADMINISTRATIVE LIAISON
DESCHUTES COUNTY BOARD OF COMMISSIONERS
TUESDAY, APRIL 26, 2005
Commissioners' Conference Room - Administration Building - 1300 NW Wall St.., Bend
Present were Commissioners Michael M. Daly and Dennis R. Luke. Also present
were Mike Maier, County Administrator; Laurie Craghead, Mark Pilliod and
Larry Shaw, Legal Counsel; and, for a portion of the meeting, Realtor Steve Scot;
Corporal Neil Mackey and Sue Brewster, Sheriff's Office; Scot Langton, Assessor;
Tom De Wolf, Commissioner; and Tom Anderson, Peter Gutowsky and Catherine
Morrow, Community Development Department. Also in attendance was media
representative Chris Barker of the Bulletin.
The meeting began at 1: 30 p. m.
1. Executive Session.
At this time the Commissioners went into executive session to discuss real
estate negotiations.
The regular Administrative Liaison meeting continued again at 1:55 p.m.
2. Discussion regarding Potential Changes to the Measure 37 Ordinance.
Mark Pilliod gave a brief summary of changes proposed for the Measure 37
ordinance, to make the ordinance consistent with interpretations of Measure 37.
The Legislature has a working group examining the new law and more changes
are anticipated. Larry Shaw is coordinating waiver documents with Community
Development.
In a related issue, the Central Electric Cooperative claim regarding expanding
their power lines will likely be decided by the Legislature within ninety days.
Minutes of Administrative Liaison Tuesday, April 26, 2005
Page 1 of 4 Pages
3. Discussion of Event Permitting Process.
Sue Brewster explained that various events, especially those involving bicycle
racing, are increasing in number. These events need to be coordinated with the
cities and the Oregon Department of Transportation. At this time no County
permit is required; however, an indemnity agreement is.
Corporal Neil Mackey added that in the past the use of the roads has been
worked out to everyone's satisfaction; however, there are new groups all the
time that are using the roads and there are more conflicts between bicyclists and
drivers. The County is now following ODOT standards, but enforcement is
difficult because the County does not have an ordinance covering this situation.
Ms. Brewster said she is gathering information from cities and other counties,
and will bring this information to the Board in the near future.
4. Discussion of an Urban Renewal District.
Scot Langton gave an update of urban renewal districts and how they are
handled in the local cities. All of these districts cost the County money, and
have been held harmless from Measure 50. (He provided a handout with more
information.) A lengthy discussion then took place regarding the details related
in the handout.
5. Project Update.
The Board briefly discussed an intergovernmental agreement between the
County and the Courts regarding telecommunications upgrades and
maintenance of equipment in the Courthouse.
LUKE: Move approval.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Minutes of Administrative Liaison Tuesday, April 26, 2005
Page 2 of 4 Pages
6. Other Items.
A. The group briefly discussed Resolution No. 2005-045, which supports the
issuance of industrial development bonds involving the City of Redmond
and the State of Oregon (for Rocky Mountain Products). This item will be
addressed further at the Monday, May 2 Administrative Liaison when
Commissioner DeWolf is present.
B. Catherine Morrow and Peter Gutowsky indicated there is a grant
opportunity available for matching funds for a water quality project
through the EPA and DEQ. Tom Anderson added that the funds the
County is already spending would equal the required match amount. They
requested that the Board sign a letter to accompany the grant request.
LUKE: Move signature of the letter requesting grant funds.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
C. In regard to a Memorandum of Understanding between Deschutes County
and Local 701 Union, Mike Maier stated that the MOU would update the
salary schedule, which affects a few positions in the Road Department.
Also, the Surveyor positions need to be reexamined this year.
LUKE: Move approval.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Being no further items addressed, the meeting adjourned at 3:45 p.m.
Minutes of Administrative Liaison Tuesday, April 26, 2005
Page 3 of 4 Pages
DATED this 26th Day of April 2005 for the Deschutes County Board of
Commissioners.
ATTEST:
j3WVJ-UO"4--
Recording Secretary
Tom DeWolf, Cha
Michael M. Daly, Co missioner
Dennis R. Luke, ommissioner
Attachments
Exhibit A: Meeting agenda (1 page)
Exhibit B: Documents regarding Measure 37 Changes (17 pages)
Exhibit C: Urban Renewal District Information (2 pages)
Minutes of Administrative Liaison Tuesday, April 26, 2005
Page 4 of 4 Pages
~v-T E c
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ory,
ADMINISTRATIVE LIAISON AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 P.M., TUESDAY, APRIL 26, 2005
1:30-1:45
1. EXECUTIVE SESSION, called under ORS 192.660(1)(c), Real Estate
Negotiations - Susan Ross
1:45- 2:00
2. Discussion regarding Potential Changes to the Measure 37 Ordinance - Mark
Pilliod
2:00-2:15
3. Discussion of Event Permitting Process - Sue Brewster, Mark Pilliod
2:15 - 2:30
4. Discussion regarding Urban Renewal District 101 - Scot Langton
2:30- 2:45
5. Project Update - Susan Ross
• Consideration of Signature of Document No. 2005-125, an
Intergovernmental Agreement between Deschutes County and the Courts
regarding Telecommunications Upgrades and Maintenance in the
Courthouse.
2:45 - 3:00
6. Other Items
Additions
• Consideration of Signature of Resolution No. 2005-045, Supporting the
Issuance of Industrial Development Bonds involving the City of Redmond
and the State of Oregon.
• Consideration of a Memorandum of Understanding between Deschutes
County and Local 701 Union
r
CHARLIE RINGO
State Senator
DISTRICT 17
u~ZCOMMITTEES:
Chair:
Land Use and Environment
Member:
Commerce
Judiciary
Rules
900 Court St NE S-318
Salem, OR 97301
503-986-1717
sen. char( ieri ngo@state. or. u s
6 April 2005
1. Overview
OREGON STATE SENATE
900 COURT ST NE
SALEM, OREGON 97301
SUMMARY: SENATE BILL 1037-1 (2005)
Contact. (503) 986-1717
The dash-1 amendment to SB 1037 creates distinctions between different types of land for
purposes of Measure 37 ("M37") and property development rights. The amendment
distinguishes between farmland, forestland, land inside urban growth boundaries (UGB's), and
land on the fringe of UGB. Each of these areas is subject to specific provisions detailing the
right to develop an owners land and rights under M37.
2. Farmland
Land that is currently zoned as farmland is divided into three categories: (1) High-value
farmland, (II) non-high value farmland, and (III) non-resource land. Each category is subject to
a specific level of rights under M37. The definition of each category is not settled.
(a) Category I
- High value farmland - M37 claims not allowed.
- Not specifically defined. (Current definition in ORS 215.710 will be
amended). This category includes Oregon's best, most productive
farmland.
(b) Category II:
- Non-high value farmland - M37 still applies.
- Implementation of M37 claims suspended for two years to allow
compensation funds to accrue.
- Instead of M37 claim, property owner may elect to subdivide property
down to 10-acres units (or the minimum lot size that applied at the time
the owner acquired the property, whichever is larger). Even under M37,
regulations cannot be waived to allow new lots smaller than two acres.
(c) Category III:
- Non-resource land - M37 only for local regulations that exceed state law.
Not specifically defined.
Any size land division and use consistent with Goal 14. Generally means
lots down to two acres, and residential, commercial and industrial uses that
are rural in nature.
Local government can identify areas or property owner can file to have
property classified as non-resource.
Any land currently zoned marginal or non-resource can be included.
0
3. Forestland
(a) M37 will be limited to restrictions adopted after the effective date of M37 (i.e.
prospective only).
(b) Will include an exception to allow a retroactive claim for owners of small tracts.
4. Inside UGB's
(a) Prospective claims only, except:
(b) Retroactive claims limited to Goal 5 restrictions on residential use. (Goal 5
includes open space, scenic and historic areas, and natural resources.)
5. Urban Fringe
(a) Approved M37 claims may not be implemented for 6 months within three miles
of UGB (five miles for Portland UGB, but only in Mult. Wash. and Clack.
Counties).
(b) Within 6 months, city must identify study areas for future UGB expansion within
the three (five) mile buffer.
(c) After six months, areas not identified as study areas subject to M37 and
farm/forest provisions.
(d) Within 48 months, city (Metro) must designate areas within study areas for
future UGB expansion. Land not designated for future UGB expansion subject to
M37 and farm/forest provisions.
6. Tract of Record
(a) Similar to same provisions in SB 1037.
(b) Applies to all land zoned for farm and forest use.
(c) Allows one dwelling on a lot or parcel acquired prior to 1994.
7. M37 Claims Process
(a) Similar to same provisions in SB 1037.
(b) Clarifies claims contents.
(c) Clarifies review process.
8. Not Included in SB 1037-01
There are a lot of issues that remain unresolved and are not addressed in this amendment.
Among these issues are:
(a) Funding Mechanisms.
(b) Appraisal methodology
(c) Applicability provisions.
DESCHUTES COUNTY LEGAL COUNSEL
MEMORANDUM
TO: Board of County Commissioners
RE: Ballot Measure 37 - County Code
Amendmentts
FROM: MARK PILLIOD
Legal Counsel
W Ext. 6625
DATE: April 22, 2005
cc: Mike Maier, County Administrator
Tom Anderson, Community Development Director
Over the past five months Deschutes County and other government entities in
Oregon have received claims by property owners pursuant to the provisions of Ballot
Measure 37. Generally, claims against the County have been submitted in
accordance with the process the County established and codified at DCC 14.10.
The County has also retained on a parttime, temporary basis an investigator
who in consultation with CDD receives, processes and investigates these claims.
The staff acknowledges that the County (and virtually all other entities which are
subject to Measure 37 claims) are not capable of paying damage claims, authorized
by Measure 37. Indeed, the total of all current claims against the County, based on
alleged reduction in property values, is estimated at $100 million. So, the staff has
processed such claims with the expectation that those which are "eligible" under
Measure 37 would be recommended to the Board for a "waiver" or non enforcement
of county land use regulations.
Recently there have been reports of various interested parties and the
Oregon Legislature considering bills to amend Measure 37. The latest information
suggests that these amendments, even if adopted, would not substantally change
the overall objective or operation of Measure 37, but rather impose procedural
requirements on state and local governments subject to claims under the Measure.
Unfortunately, there is no consensus that the Legislature will adopt any changes
before a number of claims made against the County will require a formal county
response.
As the staff has gained experience in processing Measure 37 claims pursuant
to the County code, it has become apparent that several provisions in the code are
either ambiguous, inconsistent with or not supported by provisions of Measure 37 or
would unnecessarily hamper the County in its effort to efficiently resolve some
claims. For this reason, we have prepared a series of amendments for Board
consideration and adoption. Attached to this memorandum is a memo from Larry
Shaw together with a redline/strikeout version of the code, which details the various
amendments staff is recommending. Unless the Board has concerns about doing so,
staff would prepare the appropriate ordinance amendments for adoption at the
Board's meeting of May 4.
Staff has also prepared a sample order form to grant a "waiver" from
challenged land use regulations, which might be used as a template for waivers
issued by the county on eligible claims. The actual order would be supplemented by
an attached report, furnishing in a summary form the facts needed to justify the
recommended action. This sample order (without a supplemental report) is also
attached. Staff is not recommending formal action on this particular claim at this
time. Rather, staff would welcome the Board's questions, comments or concerns
about the format. We would return later with a series of claims, together with staff's
recommendation on whether they be determined to be eligible for relief under
Measure 37.
Enc.
Deschutes County Legal Counsel
1300 NW Wall Street, Suite 200 Bend, OR 97701-1947
(541) 388-6623 - Fax (541) 617-4748 - www.deschutes.org
Larry Shaw i°
Investigator
TO: Mark Pilliod
RE: Chapter 14.10 Amendments
DATE: April 19, 2005
There are a number of proposed editing amendments listed here. The proposed major
changes reflect our experience, so far, of claimant evidence presented and the need to
maximize the Board's flexibility in responding to claims by waivers:
1. Appraisal requirement is changed to appraisal option and more flexible Reduction in
Value Evidence. 14.10, 14.10.040 I., 14.10.060.
2. Meeting Procedural Due Process is changed to allow claimants and affected
neighbors to present evidence and rebut evidence at the Board meeting where
action is considered. 14.10.090 C.
3. Complete Claim Requirements are modified to avoid restricting the Board if an
otherwise eligible claim omits some claim requirement, such as specific Reduction in
Value evidence. 14.10.020 E., 14.10.080 A., 14.10.030 D., 14.10.040.
4. Non-Conforming Use status of development based on a waiver is removed as
premature. 14. 10.110 B.
Proposed Amendments in Sequence:
14.10: 14.10.060 title change to reflect Reduction in Value evidence changes.
14.10.010 C: Adds an explicit statement that will be reflected in waivers that only County
Ordinances can be waived by the County.
14.10.020 E: Adds Board flexibility to act on a waiver for claims which may be incomplete
without violating its own ordinance by not requiring "all" criteria are met.
14.10.020 O: Edit: "does not apply to a property".
14.10.030 D: Reflects the change to allow incomplete claims by the Board; clearly states
that recommendation on an incomplete claim may be denied.
14.10.040: Reflects possible incomplete claims by deleting "at a minimum" because
some of the listed minimums may be the reason the claim is "incomplete".
14.10.040 D: Deletes an "exclusive fee ownership" requirement based on the Measure 37
interpretation that the owner of the property, that any "interest" may make a claim. See
Measure 37, section (11)(c).
Mark Pilliod
Memorandum re Chapter 14.10 Amendments
April 18, 2005
Page Two
14.10.040 H: Clarifies the sentence.
14.10.040 I: "Amount of claim" is restated in Measure 37 terms as "Reduction in Value."
Appraisals are retained as one kind of reduction in value evidence. All such evidence must
demonstrate that development of a use not currently permitted is feasible, otherwise the
new regulation since the property was acquired does not result in a reduction in value.
14.10.050: Clarifies the sentence.
14.10.060: "Appraisal requirements" is changed to "Reduction in Value Evidence" to
state that appraisals are preferred, but other evidence may be submitted.
14.10.060 E: Restates the contents of Reduction in Value Evidence to reflect all types of
evidence, including the preferred appraisals.
14.10.080 A: Removes the "complete" claim requirement from "claim eligibility criteria to
retain Board flexibility, so a waiver granted on an incomplete claim does not violate this term
of the County's own ordinance.
14.10.080 B: Allows public comments by e-mail.
14.10.090 C: Expands claimant and neighbors' procedural due process to allow parties to
present evidence and rebut evidence in the record at the Board "meeting" where the staff
recommendation is considered. This change reflects the law on quasi-judicial cases where
record for appeal is made. This involvement at the Board meeting is not open to the general
public, only affected parties, claimants, and affected neighbors.
14.10.100 C.2 b, D. G.3 Adds Measure 37 text description to the County action to
"discontinue applying the challenged regulation(s)."
14.10.100 G.1 a, b, i Add sufficient evidence language to Board determination of claim.
14.10.100 3: Adds actual Measure 37 text to clarify the extent of a waiver.
14.10.110 A: Clarifies the sentence.
14.10.110 B: Edit to remove "nonconforming use" status of development based on a
waiver because it is premature without a Court ruling.
14.10.030: Recording is changed to an action by the County rather than creating a
condition of waiver of approval that might be violated or used as a basis of appeal of the
waiver order.
Chapter 14.10. PRIVATE PROPERTY
COMPENSATION
CLAIMS
14.10.010.
Purpose and Scope.
14.10.020.
Definitions.
14.10.030.
Claim.
14.10.040.
Claim contents.
14.10.050.
Extension.
I 14.10.060.
Appraisal Reduction
In Value Evidence.
14.10.070.
Public Comment Process.
14.10.080.
Claim eligibility criteria.
14.10.090.
Claim Review Procedure.
14.10.100.
Board decision.
14.10.110.
Effect of decision to discontinue the
application of a regulation.
14.10.120.
Effect of payment of compensation
claim or issuance of waiver.
14.10.130.
Recording of decision.
14.10.140.
Procedural objections.
14.10.010.
Purpose and Scope.
A. The purpose of DCC 14.10 is to establish a
prompt, open, thorough and consistent process
that enables property owners an adequate and
fair opportunity to present their claims to the
County; preserves and protects limited public
funds; authorizes, where appropriate, the
modification, removal or waiver of County
regulations; and establishes a record of the
County's decision capable of judicial review.
B. The provisions of DCC 14.10 shall apply to any
claim for compensation by an owner of private
real property against the County, which claim is
made pursuant to an initiative measure
approved by the electors in the November 2004
general election and enacting new provisions of
ORS Chapter 197, and any law or regulation
adopted by the State which amends or modifies
such measure (collectively referred to herein as
"Measure 37").
C. The provisions of DCC 1.4.10 establish a
process for consideration of Measure 37 claims
based on County regulations and do not affect any
land use regulations adopted by the State.
Chapter 14.10
14.10.020. Definitions.
A. As used in this chapter, words and phrases shall
have the same meaning as those contained in
Measure 37.
B. "Administrator" means the County
Administrator or the Administrator's designee.
C. "Appraisal" means an examination of and
opinion about the fair market value of real
property issued by a certified general appraiser,
licensed by the Oregon Appraiser Certification
and Licensing Board and for the type of
property under consideration. Appraisal shall
include an opinion of fair market value of real
property made by an appraiser in the office of
the Deschutes County Assessor.
D. "Claimant" means the property owner for which
a claim is made pursuant to this Chapter.
E. "Claim Eligible" means a finding by the County
that all--Af the criteria for compensation
payment, pursuant to the terms of this Chapter,
have been met.
F. "Community Development Department" or
"CDD" means the County office designated to
receive, evaluate and solicit and coordinate
public comments concerning Claims submitted
under Measure 37.
G. "Director" means the Director of the
Department of Community Development or the
Director's designee.
H. "Exempt Regulation" means a regulation that is
any of the following:
1. A historically and commonly recognized
public nuisance law;
2. A regulation which is required in order to
comply with federal law or the terms of a
federal grant;
3. A regulation which prohibits or restricts
activities for the protection of public health
and safety, including fire and life safety and
building codes, health and sanitation
regulations, solid or hazardous waste
regulations and pollution control
regulations;
4. A regulation enacted prior to the date of
acquisition of the property by the current
property Owner or a family member of the
(124,12004094/200-5)
current property Owner who owned the
subject property prior to the acquisition or
inheritance by the current Owner;
5. A regulation prohibiting the use of property
for selling pornography or performing nude
dancing; or
6. Any regulation determined or declared by
judicial decision or legislative act to be
exempt.
1.
J
"Fair Market Value" means the price stated in
terms of dollars that a willing buyer would pay
for the real property without any obligation to
buy from a willing seller without any obligation
to sell. "Reduction in fair market value" means
the difference in fair market value of the
property before and after application or
enforcement of the regulation.
"Federal Requirement" means a statute, code or
regulation adopted by the U.S. Congress or any
federal agency or state agency delegated to act
in the name of a federal agency, which imposes
upon the state or local governments or both an
obligation to enact or enforce regulations over
the use of real property, whether directly or by
the terms or conditions of the grant or the
receipt of federal funds.
K. "Nuisance" means a structure or condition on
property arising from any act or omission,
which unreasonably interferes with a right
common to members of the general public and
not necessarily related to the use and enjoyment
of land by any person other than the owner of
the property that is the situs of the nuisance.
L. "Person" means and includes individuals,
corporations, associations, firms, partnerships,
limited liability companies and joint stock
companies.
M. "Property Owner" or "Owner of Property"
means a person with recorded interest in
private, real property, including holders of less
than fee simple interests, leasehold owners, and
security interest holders.
N. "Real Property" means any lot, parcel or tract or
any combination thereof, that is owned by a
Claimant, including structures built or located
on the real property, and any recordable legal,
equitable, future or contingent interest ui all or
any portion of the property. Real Property does
not include public property, personal property
or easements over, above or below public
property. Unless the context otherwise
indicates, property shall mean real property.
0. "Waiver" means a license issued by the County
which in accordance with its terms modifies,
removes, releases or does not apply certain non-
exempt County land use regulations from a
property determined to be claim eligible, and
which upon acceptance by a Claimant releases
the County from any further or future claim,
action or demand relating to the Claimant's real
property based upon Measure 37. Waiver
includes any all terms and conditions attached
thereto by the County.
(Ord. 2004-022§ 1, 2004) j
14.10.030. Claim.
A. Any claim seeking compensation from the
County pursuant to Measure 37 shall be made
on a claim form complying with the
requirements of DCC 14.10.040 and
accompanied by the required fee. A claim shall
not be deemed filed until and unless the claim
form is fully and properly completed with the
inclusion of such information as is required by
the form and the completed form is actually
received at the offices of the Community
Development Department.
B. Notwithstanding subsection (A) of this section
and subsection (A) of section 14.10.040, the
Administrator may allow the acceptance and
processing of an incomplete claim upon the
preliminary determination that the particular
claim appears to be claim eligible even in the
absence of all of the required data.
C. For regulations enacted prior to December 2,
2004 a claim shall be filed no later than two
years after December 2, 2004 or the date the
County applies such regulation as an approval
criteria to an application for land division or
development by the property Owner. For
regulations enacted after December 2, 2004 a
claim shall be filed no later than two years after
the enactment of such regulation or the date the
owner applies for land division or development
Chapter 14.10 2 (U4? "04/2005)
approval and the County applies such regulation
to the owner's application.
D. The Director is not authorized to settle any
claim. Any omission or failure to recite to a
Claimant all relevant applicable land use
regulations will not constitute a waiver or
admission by the County. A decision by the
Director to allow the acceptance and processing
of an incomplete claim shall not preclude the
Director from recommending denial to the
Board.
(Ord. 2005- ~ , 2005; Ord. 2004-022§ 1, 2004)
14.10.040. Claim contents.
A claimant for eompensation shall, at
furnish the following information:
A. Fee. A nonrefundable fee of not less than
$500.00 to be paid in advance of acceptance for
filing. 0,e fee will be used to cover the
County's costs of review and processing.
B. Property Owner. Identification of the name,
mailing address, street address, and phone
number of the person filing the claim for
compensation. If the person filing the claim is
not the fee title owner of the property, the
required information shall be provided with
regard to all owners of the property.
C. Property Description. A legal description of the
property by lot and tax lot number that is the
subject of the claim and the common, street
address for the property.
D. Proof of Ownership. A title report issued
within 30 days of the date of the claim and by a
property title insurance company authorized to
conduct such business with the State of Oregon.
Such report shall name all persons with legal,
equitable and security interests in the property
and the date and instrument showing the time
and manner in which such property interest or
interests were established. The -°3o~' rAtisf
Claimant. exelusive fee owner-ship of the If the
property is not in the exclusive fee ownership of
the Claimant, then thedian-4he-County may
require the Claimant shall- to certify that the
Claimant has the consent to proceed with the
claim on behalf of all other owners, including
Chapter 14.10 3
co-owners and all security interests in the
property. The name and mailing address of all
owners other than the Claimant must be
provided. The title report must also specify any
restrictions on use of the property unrelated to
the challenged regulation including, but not
limited to, any restrictions established by
Covenants, Conditions and Restrictions
(CC&Rs), other private restrictions, and other
regulations, restrictions or contracts.
F. Ownership History. Where the claim concerns
application or enforcement of County
regulations in effect prior to Claimant's
acquisition of the property, Claimant shall
provide a title report, in the form of a title
history, including a statement of the date(s)
when the Claimant and the Claimant's earliest
family member first acquired ownership of the
property, the names of earliest and each
succeeding family member, the dates of each
acquisition and disposition of all intervening
owners of the property from the earliest family
member to that of the Claimant. The Claimant
shall also furnish evidence showing the family
relationship between and among all prior
owners to establish that no gaps when a family
member of the Claimant did not own the subject
property.
G. Identification of Regulation. A copy of each
and every County regulation that allegedly
restricts the use of the real property and has
allegedly caused a reduction in the fair market
value of the subject property, including a
statement by the Claimant of the date each
regulation was first passed, applied or first
enforced on the subject property.
H. Enforcement of County Regulation. A notice of
disposition or other public record showing
whether the Claimant has applied, using all
applicable procedures, for a permit, pft9Nf-for
land division and/or for development of the
property which is the subject of the claim; for
amendment or elimination of the regulation in
question, or, if not allowed, a variance from its
terms; whether enforcement proceedings have
occurred with respect to the Claimant's use of
the property; whether the Claimant has pursued
and cxhaustcd all local appeals available for the
(124/2)0404/200-5)
development, amendment or enforcement of the
regulation(s) that is alleged to have caused a
reduction in the fair market value of the subject
property requiring compensation; and the
results or final disposition of all such
procedures. In the absence of any records of the
foregoing the Claimant shall demonstrate that
submitting an application for land division
and/or development of the property subject to
the regulation(s) would be futile, because the
County would deny such application.
1.
Amount of G-1aimReduction in Value. A
statement of Claimant shall provide written
evidence of the 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 non-exempt land
use regulation. ^ of ^ - ~
i-epoi indieatin *The amount of the alleged
reduction in the fair market value of the
property shall be indicated by showing the
difference in the fair market value of the
property determined before and after
application or enforcement of the County's non-
exempt land use regulation(s). Appraisals must
meet the uniform standards of Professional
Appraisal Practice (USPAP) and be performed
by an appraiser who meets the Competency
Rule of USPAP. The appraisal must be in a self-
contained format and must be "complete," not
"limited." The appraisal shall address the
specific limitations set forth in DCC 14.10.060.
Any reduction in value evidence shall
demonstrate that the desired use is feasible on
the subject property. This includes, at least,
evidence that domestic water, sanitary sewer
disposal and road access are feasible for the
desired use.
Effect of County Waiver. A statement
explaining how the County's enforcement of the
regulation restricts the use of Claimant's
property. The Claimant must explain the effect
that County's waiver of enforcement or
application of the regulation(s) on the property
would have on the Owner's potential
development of the property, stating the greatest
degree of development that would be sought if
the identified regulation(s) was released from
the property. The Claimant shall also furnish a
statement of the greatest degree of development
that would be sought if the identified
regulation(s) was not released from the
property.
K. Binding Effect of Claim submittal. A statement
by all Owners of the property that all claims that
may be brought under DCC 14.10 which are
ripe at the time of filing the claim have been
brought or are irrevocably waived by the
Owner(s) or will be joined in a single legal
proceeding if the claim is denied by the County.
L. Signature. The claim form shall be signed by all
Owners of the property.
(Ord. 2005 § , 2005; Ord. 2004-022§ 1, 2004)
14.10.050. Extension.
If after filing a claim, the Claimant elects to apply to
the County for a permit, land division or
development of the subject property in order to
establish that the result of such application would be
denial by the County and thus demonstrate
application or enforcement of a non-exempt County
land use regulation to the subject property, then the
County will leave the Claimant's claim under this
chapter open, so as to allow the Claimant an
opportunity to resume the claim.
(Ord. 2005 ti , 2005; Ord. 2004-022 § 1, 2004)
14.10.060. 1.4 ppr-aisal !.Reduction
in Value Evidence.
The preferred evidence of reduction in value is an
gppraisal as defined in 14.10.020 C. Any appraisal
evidence offered to support a claim for
compensation pursuant to the terms of this chapter
shall be subject to the following special
requirements:
Chapter 14.10 4 (2n400404/2005
A. The appraisal must expressly note all existing
infrastructure limitations and value the property
without an assumption that the infrastructure
will be improved at governmental expense or
through discretionary governmental action.
Infrastructure includes but is not limited to
water, sewer, vehicle access, law enforcement,
fire protection and other necessar
y public
services and utilities.
B. The appraisal's consideration of the reduction
in fair market value shall be limited to the
difference in the fair market value of the
property before and after the application of the
non-exempt County land use regulation(s). The
analysis shall distinguish the effect or damage
that may result to the property based upon laws
or regulations that are exempt regulations or are
not County regulations. The analysis shall not
include consideration of any other damage that
the regulation may have on any other property
owned by the Claimant.
C. The appraisal shall specifically identify the
effect on market value from application or
enforcement of County regulations, of exempt
regulations and of any non-county regulations,
such as State and federal regulations.
D. The appraisal must expressly consider the
market effect of Measure 37 on the availability
of other real property including the extent to
which the supply of such other real property is
or will be increased due to the repeal, waiver or
non-enforcement of nonexempt County land use
resulting from Measure 37.
E. €aeh aplfaisal fepc - Written evidence of
reduction in value must clearly state:
1. The assumptions related to the regulation(s)
restricting the use(s) of the property;
2. The dates of valuation;
3. The assumptions related to uses allowed on
the property if the regulation had not been
enacted, enforced, or applied;
4. Any statistical, economic, econometric, or
other calculations, models, or methods used
to determine reduction in value;
5. The comparable properties evaluated; and
6. The methodology used by the appraiser to
determine the reduction in fair market
value.
Chapter 14.10 5
7. The name of the prepares and their
qualifications for preparing such evidence.
F. Nothing contained herein shall be construed as
prohibiting the County from considering an
appraisal prepared by an appraiser on staff of
the Deschutes County Assessor.
(Ord. 2005 § , 2005; Ord. 2004-022 § 1, 2004)
14.10.070. Public Comment Process
A. The Director shall send by regular first class
mail notice of the claim within 10 days of
submittal of a claim to the owners of property
within 250 feet of the subject property. For
purposes of identifying addressees, the County
shall use the property ownership records of the
County Assessor. Such notice shall include the
following information.
1. The nature of the claim and the nature of
the proposed use(s) that could be
authorized;
2. The eligibility criteria set forth in DCC
14.10.080.
3. The street address or easily understood
geographical reference to the subject
property;
4. The date and location by which written
comments must be received; and
5. That a copy of the claim, all documents and
evidence submitted by or on behalf of the
Claim and the applicable criteria are
available for inspection at no cost and will
be provided at reasonable cost.
B. Failure of the Director to give notice or the
failure of any person to receive notice as
provided in this section shall not invalidate any
action of the County under this chapter.
C. Any person may submit written comments on
the claim.
D. The Administrator shall consider written or
email comments received before the
Administrator reports to the Board and shall
forward such comments to the Board.
(Ord. 2004-022 § 1, 2004)
(124200404/2005)
14.10.080. Claim eligibility criteria.
A claim for compensation shall be deemed claim
eligible only if all of the following criteria have
been met:
r preper-ly
filed pufstiant t4a the terms o. t
BA.The Claimant is the property owner and the
subject property has been owned by the
Claimant or by a family member of the
Claimant continuously since before adoption or
the effective date of the county land use
regulation which the Claimant alleges to have
caused a reduction in the value of Claimant's
property. If the regulation was adopted in any
fashion other than an ordinance, the Claimant
must establish that he/she was the Owner or a
related family member Owner of the property in
question on the date that the regulation was first
eligible for administrative or judicial
enforcement in the County.
EB.It must be determined that the County
regulation in question is not an exempt
regulation.
DC.The cited regulation(s) is a qualifying land use
regulation entitling the property owner to
compensation or waiver of the regulation on use
of the property under Measure 37.
D. The provisions of Measure 37 and/or any
law or regulation adopted by the State which
modifies or implements such measure are in full
lawful effect.
(Ord. 2005 § , 2005; Ord. 2004-022 § 1, 2004)
14.10.090. Claim Review Procedure.
A. The Administrator shall have the duty to
analyze claims for compensation and make a
recommendation to the Board on the disposition
of the claim. The Administrator may, in the
Administrator's discretion, retain the services of
an appraiser or any other qualified expert to
review or critique appraisals and other
information and documentation provided by the
Claimant and/or to appraise the property and the
claim for compensation for the purposes of
determining whether or not the cited regulation
has had the effect of reducing the fair market
value of the property and for other purposes
relevant to the claim. Nothing contained in this
chapter shall be construed as preventing the
County Assessor or its appraisal staff from
analyzing and furnishing an opinion as to
reduction in fair market value of property
resulting from enforcement of one or more
County land use regulations. The
Administrator's recommendation shall advise
whether or not the claim has been determined to
be claim eligible and may include a
recommendation concerning disposition of the
claim.
B. Upon the completion of the recommendation
the Administrator; shall submit the same to the
Board, together with written public comments
received in writing or via e-mail.
C. The Claimant or any person entitled to notice in
accordance with DCC 14.10.070 may r-eqxest
the Beafd ee er- present oral comments and
rebut evidence in the record. including the
Administrator's report at the Board meeting in
which the Administrator's recommendation is
presented. A public hearing shall not be
required.
D. The Board shall consider the matter at a regular
or special meeting for which notice is given as
required by law.
(Ord. 2005 §12005; Ord. 2004-022 § 1, 2004)
14.10.100. Board decision.
A. The Board shall review the Administrator's
recommendation and any testimony, written
comments or other documents submitted in
support of or opposed to the claim and
determine whether or not the claim is, in fact,
claim eligible.
B. Prior to making a decision, members of the
Board shall not communicate directly or
indirectly with any party or the party's
representative in connection with any issue
involving the pending claim. Should such
communication - whether written or oral -
occur, the member shall publicly announce for
the record the substance of such
communication and permit any party the right
Chapter 14.10 6 (440 04/2005)
to rebut the substance of the ex parte
communication during the Board's meeting.
C. Upon a determination that the claim is claim
eligible, the Board shall do the following:
1. Pursuant to Measure 37, and
notwithstanding any other law, rule,
ordinance, resolution, goals, or other
enforceable enactment of the County, and
notwithstanding any other procedure for
release, exception, or otherwise in this
Code, the Board is authorized by written
order to modify, remove, release or not
apply any County land use regulation to the
property which is the subject of the claim
when the Board, in its discretion, elects to
do so rather than paying compensation to
the property.
2. Within 180 days of the ffoper Aling of-ia
elaim and upon detef:minat4en dia+ it -41S
elaim eligible-t The Board shall either
declare that:
a. Compensation is due to the Claimant in
an amount determined in the Board's
decision; or
b. The County will, as of a date specified
in the resolution, discontinue applying
the challenged regulation(s) to allow
t,
the stgjev` Claimant to
use the property for a use permitted at
the time the owner- Claimant acquired
the property.
D. Where more than one regulation is being
challenged, the Board may provide for a
combination of remedies listed in this section.
E. The Board's decision shall be based upon
consideration of whether the public interest
would be better served by compensating the
Claimant, depending upon available resources
for payment thereof or by discontinuing to
apply the challenged regulation(s) to the subjee~
peruse permitted at the time the ewn~
Claimant acquired the property.
F. If the Board determines that the claim is not
claim eligible, it shall adopt an order, including
findings of fact and conclusions to explain the
basis for its determination.
G. Based upon the Board's determination of claim
eligibility, it shall take one of the following
actions:
1. Deny the demand based on, but not limited
to, any one or more of the following
findings:
a. The evidence is not sufficient to show
that the County's non-exempt land use
regulation dour-net-restricts the
Claimant's use of the property;
b. The evidence is not sufficient to show
that the fair market value of the
property is net-reduced by the
enactment, enforcement or application
of the Eeant3,~County's non-exempt
land use regulation;
c. The claim was not timely filed;
d. The Claimant failed to comply with the
requirements for making a demand as
set forth in this chapter;
e. The--C-laimant is net the
preper4-eYuief-, The Claimant is not an
Owner within the meaning of Measure
37 or the property was not owned by a
family member if that is required for
compensation, or the Claimant was not
may- an owner at the time the
land use regulation was first enacted,
enforced or applied;
f. The challenged land use regulation is
an exempt regulation;
g. The land use regulation in question is
not an enactment of the County;
h. The county has not taken final action to
enact, enforce or apply the land use
regulation to the property or that filing
an application for a use alleged by the
Claimant to be restricted by the
County's land use regulation in a
manner which reduces the value of such
property would not be futile;
i. The evidence is not sufficient to
demonstrate that use proposed by the
Claimant is unfeasible, based -upon
even. if the land use regulations were
not applied due to exempt regulations.
and/or infrastructure limitations. or
other factors.
j. The owi -Claimant is not entitled to
compensation under Measure 37 for a
Chapter 14.10 7 (1248404/2005)
reason other than those provided
herein.
2. Award compensation, either in the amount
requested, or in some other amount
supported by substantial evidence in the
record, subject to the availability and
appropriation of funds for that purpose.
Payment may be made jointly to owners of
the property or, as appropriate, to the
Circuit Court for determination of proper
distribution of such proceeds.
3. Issue a waiver of the County land use
regulation ,r, -af to allow the Owner
Claimant to apply for a use of the property
permitted at the time the Ovoitf Claimant
acquired the property. Provided however,
that nothing contained herein shall be
construed as allowing a use of the subject
property which was prohibited or restricted
by any land use regulation in effect at the
time the Cann - Owner Claimant
acquired the property.
4. Take such other actions as the Board deems
appropriate consistent with Measure 37 and
this Chapter.
(Ord. 2005 ' , 2005; Ord. 2004-022 § 1, 2004)
14.10.110. Effect of a decision to discontinue
the application of a regulation.
A. No compensation shall be due pursuant to the
provisions of Measure 37 if a decision is made
to modify, remove or not apply a county
regulation(s) to a Claimant's property within
180 days of the filing of a completed claim for
compensation. A decision to modify, remove or
not apply one or more county regulations to a
given property is not equivalent to approval of a
use or development of that property, which may
require separate land use o -development
approval or the processing of a permit
qpUlication.
B. Any improvement or development that the
G y allaws- occurs based in whole or in part
on the Board's decision that the claim is claim
eligible under this chapter, shall be treated as
HE)Ae0 -PUFSU&nt to PGE' 18.120 as
elaim eligible unless otherlyi ,e
provided by the teffns of a wai,.;ef
entitled only to the rights and
privileges which Measure 37 provides for a
Claimant which establishes a valid claim. under
Measure 37. Provided however, that nothing
contained herein shall be construed as allowing
a use of the subject property which was
prohibited or restricted by any land use
regulation in effect at the time the Claimant
acquired the property or any regulation which is
not among those regulations included in the
waiver.
(Ord. 2004-022 § 1, 2004)
14.10.120. Effect of payment of a
compensation claim or issuance of
waiver.
The Claimant's acceptance of County's payment of
compensation or waiver shall forever satisfy the
claim of the Owner, and subsequent Owners f'or the
partial taking caused by the regulation(s) in question
and/or its present or future enforcement.
(Ord. 2004-022 § 1, 2004)
14.10.130. Recording of decision.
The payment of a compensation claim or the
issuance of a waiver and the satisfaction of all
present and subsequent claims shall be recorded as a
covenant running with the land. Any mp(Ord. 2005 5 , 2005; Ord. 2004-022 § 1, 2004)
14.10.140. Procedural objections.
Any party who objects to the procedure followed in
any particular matter, including bias, conflict of
interest, and undisclosed ex parte contacts, must
make a procedural objection prior to the County's
final decision. Procedural objections may be raised
at any time prior to a final decision, after which they
are deemed waived. In making a procedural
objection, the objecting party must identify the
procedural requirement that was not properly
followed and identify how the alleged procedural
error harmed that person's substantial rights.
(Ord. 2004-022 § 1, 2004)
Chapter 14.10 8 (124/200404/2005)
REVIEWED
LEGAL COUNSEL
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 [Bruce Meland] to Use * R_I_)FR NO. 2005-[020]
the Subject Property as Allowed When the
Property was Acquired
WHEREAS, On November 2, 2004, the voters of
which added provisions to Oregon Revised Statutes (ORS) C
payment of just compensation to landowners if a government
of just compensation, Ballot Measure 37 authorizes the gc
remove or not apply the land use regulation, and
WHEREAS, [Bruce R. Meland] has made a
reduction in value to his property at [63690 Pioneer 1
took effect after this property was acquired, and
WHEREAS, section 8 of Measure 37 aut
adoption and enforcement of County regulations, to
owner's use and reduces the value of the Drotierfiv: a
WHEREAS, the Board has
required by DCC 14.10.090; and
WHEREAS, the Board has consider
parties at a Board meetmI-1 as ~r cc luired b-,
1)~ C`
WHERL aAthe 13d6l d rr foil
vregon apr~.~
quire, uir
egulation reduces
v f=.., a local g
L
foi CMITCn~ahrm`u
County, Oti
facts and conclusions;
I r '001"l[February Bruce R Meland ("Claimant") filed a Measure 37 claim with
the Community Develo n epartment.
irnrmt's property at [6# pioneer Loop] is within Deschutes County.
3. 1 h~( ot>n minis,,, o as recommended that the claim be treated as claim eligible, and that
currei t i onan. ect property at [63690 Pioneer Loop] not be enforced in lieu of
payment o` st o pie sation to Claimant. The Administrator's report is attached and
incorporated _ ce into this Order as Exhibit "A."
4. The Board concurs"with the Administrator's report that [Bruce R. Meland] is the current owner
of the subject property described in Exhibit "A," having acquired it on September 23, 1972.
5. The Board concurs with the Administrator's report that the current zoning for the subject
property is MUA-10, adopted (date) and would not permit a land division of this subject
property. This land use regulation is not exempt from Measure 37 claims.
llot,N,1easure 37
16e. In lieu
to modify,
nder Measure 37 for a
iv to regulations which
ning body responsible for
regulation that restricts the
report and; c im nil 'tion of the County Administrator as
°e Administrator's report and the evidence presented by the
10-',000: and
PAGE 1 OF 3- ORDER NO. 2005-020 (04/ 105)
6. The Board concurs with the Administrator's report that an application for a land division of the
Claimant's property subject to MUA-10 zoning would be denied. Therefore, such an application
to seek enforcement of the current zoning would be futile.
7. The zoning at the time Claimant acquired the property was [A-1] zoning, allowing [land
divisions with] lots of up to [5] acres.
The Board concurs with the Administrator's report that [the conflict in the evidence about the
size of the subject property under these circumstances ould be a substitute for a permit
application based on the A-1 zoning in effect] at the time claimant acquired the subject
property. Therefore, a permit application for the County to "enforce" the current zoning would
be futile.
9. The Board concurs with Administrator's report that claimant leas demonstrated that domestic
water, septic, and road access for the desired use of the subject property are feasible. "Therefore,
there is substantial evidence that the desired usr that is the basis for the alleged nMuction in
value is feasible. Despite the lack of a precise amount of reduction in value, the denial of an
additional lot on the subject property would be a substantial amount of reduction in fair market
value.
THE BOARD OF COUNTY COMMISSIONERS OF 1)FSC11tTT1_S COI TNh1', 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 [Meland] claim is eligible under ]ACC 14.10.100.
Section 2. The Board hereby elects to not apply Current [1%,1UA-l0] zoning to the subject property
described in Exhibit "A" in lieu of payment of just compensation under Ballot Measure 37. Claimant is hereby
authorized to use subject property as permitted at the time the uwner acquired the property. Claimant may apply
for partition of the subject property into two lots consistent with the [A-1] zoning 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 [September 23, 197?.] '1 11c Community l)evelohment Director is hereby authorized to determine the
affects that any other non-exempt regulations in eftcct on this date permit aspects of Claimant's proposed
development differently than current non-exempt regtilation5.
Section ,3. This Order is a waiver of a non-exempt County land use regulation from a property
determincd to be "claim eligible as defined in DCC 14.10.020(0)
Section d "Phis order does not effect any land use regulations of the State of Oregon. If the use allowed
by Section 2, aboNe, reniains 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: (1) 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. 2005-020 (04/ 105)
Section 5. This Order shall be recorded in the Deschutes County Deed Records together with portions
from the deed or other instrument in Exhibit A sufficient to identify the subject property.
DATED this day of , 2005.
ATTEST:
Recording Secretary
PAGE 3 OF 3- ORDER NO. 2005-020 (04/ 105)
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
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Urban Renewal Plan Areas
Bend Downtown
FY02/03
FY03/04
FY04/05
Division of Tax
895,318:
894,613
894,843
Special Levy
854,180
996,993
1,271,872
Total
1,749,498
1,891,606
2,166,715
FY04/05 Agency certified
Redmond Downtown
FY02/03
FY03/04
FY04/05
$484,500 from special levy.
100% of authority would
have generated approx.
Division of Tax
860,254
956,765 ;:fir, ~ '
1,072,010
$775,000 from special levy
Special Levy
481,779
i
591,781
&
484,484
Total
1,342,033
1,548,546
1,556,494
Redmond Airport
FY02/03
FY03/04 FY04/05
'
Division of Tax
488,300
531,344 547,457
$321
Special Levy
209,715
258,885 -
Total
698,015
790,229 547,457
Sisters FY02/03 FY03/04 FY04/05 I First year of plan
Division of Tax 63,227 New plans do not have
Special Levy - special levy authority
T_a_1
FY04105 Agency certified -
for special levy
100% of authority would
have generated approx.
,000 from special levy
Source: Deschutes County Assessor 4/26/2005
