2005-742-Order No. 2005-027 Recorded 5/26/2005DESCHUTES COUNTY OFFICIAL RECORDS
REVI D NANCY BLANKENSHIP, COUNTY CLERK C} Ydd 2005-N2
COMMISSIONERS' JOURNAL 05/26/2005 03:57;02 PM
-1
LEGAL COUNSEL I I I I I I II IIII I II I III I (III
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 * ORDER NO. 2005-027
the Subject Property as Allowed When the
Property was Acquired
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 Measure37 authorizes the governing body of a local government to modify, remove
or not apply the land use regulation, and
WHEREAS, Bruce R. Meland has made a timely demand for compensation under Measure 37 for a
reduction in value to his property at 63690 Pioneer Loop, Deschutes County, Oregon due to regulations which
took effect after Bruce Meland 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 February 1, 2005, Bruce R. Meland ("Claimant") filed a Measure 37 claim' with the
Community Development Department.
2. Claimant's property at 63690 Pioneer Loop is within Deschutes County.
3. The County Administrator has recommended that the claim is claim eligible, and that current,
MUA-I0 zoning for the subject property at 63690 Pioneer Loop 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 Bruce R. Meland is the current owner of
the subject property described in Exhibit "B," having acquired an interest and continually
owned an interest since August 30, 1966.
PAGE 1 OF 3- ORDER NO. 2005-027 (05/25/05)
5. The Board concurs with the Administrator's report that the current zoning for the subject
property is MUA-I0, which would not permit a land division of this subject property. This land
use regulation is not exempt from Measure 37 claims.
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 determine enforcement of the current zoning to the Claimant's property would be
futile.
7. There was not zoning at the time Claimant acquired the property.
8. The Board concurs with the Administrator's report that there is a conflict in the evidence about
the size of the subject property. The evidence most favorable to the Claimant is that the subject
property is 10 acres.
9. The Board concurs with Administrator's report that claimant has demonstrated that domestic
water, septic, and road access for the desired use of an additional residential lot on the subject
property are feasible. Therefore, there is substantial evidence that the desired use that is 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 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 DESTCHUTES 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 Meland claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply current MUA-10 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 the owner acquired the property. Claimant may
apply for land division of the subject property consistent with the 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
August 30, 1966. The Community Development Director is hereby authorized to determine the effects that any
other non-exempt regulations in effect on this date would have on Claimant's proposed development differently
than current non-exempt regulations.
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 MAYBE 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
PAGE 2 of 3- ORDER No. 2005-027 (05/25/05)
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.
DATED thin: day of May, 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNT', OREGON
TOM DEWOLF, Chair
ATTEST:
Recording Secretary D IS R. LUKE,
Y, Cojhmissi
PAGE 3 OF 3- ORDER No. 2005-027 (05/25/05)
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
RE: Measure 37 Claim - Bruce Meland
63600 Deschutes Market Road
DATE: May 18, 2005
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 February 2, 2005 when
Measure 37 was in lawful effect. Claimant paid the filing fee and submitted an official demand form. The
property, shown on the attached map, is estimated to be 10 acres. GIS computed 9.12 acres (see
Page 1 of 5 - Meland (05/18/05)
attached) and the tax assessment is based on 8.5 acres. The current zoning is MUA-10 (Multiple Use
Agricultural) with a 10-acre minimum lot size. The claimant's desired use is a partition of the property into
two 5 acre lots. The following is an analysis of the evidence in the record on the elements of this Measure
37 claim.
Current Owner - Bruce Meland, sole owner
Claimant presented a copy of a warranty deed showing that title is vested in his name and recorded at
Vol. 150, p. 469 of the deed records dated August 30, 1966. Staff has confirmed that the deed is so
recorded with no other owner's interest recorded. The deed states that the property is 10 acres, more or
less... excepting the Easterly 30 feet for roadway purposes."
Owner Date of Acquisition - August 30, 1966
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.
Restrictive Regulation - MUA- 10 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 only the MUA-10 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.
Page 2 of 5 - Meland (05/18/05)
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 - $175,000 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 letter from Avion Water Company stating its ability to serve the two lots
proposed and identifying the location of a new water line.
• Claimant has submitted a water well report from his adjacent property as additional evidence that
domestic water is available.
• Claimant has submitted a site evaluation for septic permit approval on his adjacent property as
evidence that septic approval is feasible in the area.
• Claimant has submitted a map (attachment 3), showing access from Deschutes Market Road and
evidence of a proposed LID as evidence of available road access for the desired additional lot.
• Resolving the conflict in the evidence on acreage in a manner most favorable to the claimant for
the purpose of this Measure 37 claim only, means that an additional buildable lot probably can be
created if the current zoning is not applied. Therefore, assuming a 10-acre lot, current zoning
reduces the property value by some amount.
• Claimant has not submitted an appraisal of the reduction in value or evidence of a precise
reduction in value.
• Assuming Claimant could obtain a partition of the property under prior zoning, but not under
current zoning, the value of Claimant's property for Measure 37 purposes has been reduced.
Page 3 of 5 - Meland (05/18/05)
Effect of County Waiver - remove zoning restriction MUA-10
Claimant has explained in his materials that a County waiver of application of the current MUA-10 zoning
would allow him to seek a partition of the subject property consistent with the zoning in effect on August
30, 1966, 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 zoning in a partition application.
In that partition application process the conflicting evidence about the property acreage and qualification
for a partition can be resolved consistent with the applicable 1966 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 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 August 30, 1966, the date he acquired the property. There is evidence in the record that
development of additional lots, his desired use, would be feasible based upon available domestic water,
septic and road access. There is evidence in the record that there is some amount of reduction of value
because additional lots could be created. Claimant estimates this reduction in value at $175,000, his
market value estimate of a market-ready lot. This does not seem to take into consideration development
costs. There is conflicting evidence of whether the subject property parcel is 8.5, 9.2 or 10 acres in size.
This decision does not resolve this conflict.
My recommendation is that the Board approve Claimant's waiver of the MUA-10 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 MUA-10 zoning to the Claimant's property,
but would apply the regulations which were in effect when Claimant acquired the property. This waiver is
not a development permit. Claimant must apply for a partition under August 30, 1966 regulations.
Page 4 of 4 - Meland (05/18/05)
but would apply the regulations which were in effect when Claimant acquired the property. This waiver is
not a development permit. Claimant must apply for a partition under August 30, 1966 regulations.
Page 5 of 5 - Meland (05/18/05)
EXHIBIT B
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Order into. 2003-027; Meland DOCUMENT POOR QUALITY
AT TIME OF RECORDING