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2005-796-Order No. 2005-036 Recorded 6/10/2005REVI DESCHUTES DS NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL LEGAL COUNSEL 06/10/2005 03;19;54 PM I II IIII~IIIIII~IIIIIIIIIIIII 0 -7Yd BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Terry A. Frick to Use the Subject Property as Allowed When She Acquired the Property * ORDER NO. 2005-036 * 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, Terry A. Frick has made a timely demand for compensation under Measure 37 for a reduction in value to her property at 21721 Butler Market Road, Bend, Oregon due to regulations which took effect after she 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 in lieu of payment of compensation; 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 January 13, 2005, Ms. Frick filed a Measure 37 claim with the Community Development Department. 2. Claimant's property at 21721 Butler Market Road, Bend, Oregon is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property at 21721 Butler Market Road, Bend, Oregon that were not already in effect until after June 23, 1972, 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 Terry A. Frick is the current owner of the subject property described in Exhibit "B," having acquired it and continuously owned it since June 23, 1972. 5. The Board concurs with the Administrator's report that the current regulation, EFUTRB zoning, if applied to the subject property, would not permit a subdivision on this subject property. The current regulation is a land use regulation which is not exempt from Measure 37 claims. PAGE 1 of 3- ORDER No. 2005-036 (05/25/05) 6. The Board concurs with the Administrator's report that an application for a subdivision on the subject property would be denied if the current zoning were applied. Therefore, such an application to determine enforcement of the current zoning to the Claimant's property would be futile. 7. The regulation, EFUTRB zoning, was not 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 are feasible. Therefore, there is substantial evidence that the basis for the alleged reduction in value is feasible for water, septic and road access. Despite the lack of a precise amount of reduction in value, the loss of the ability to add eight additional buildable lots from the subject property would be a substantial amount of reduction in fair market value if the regulations at the time Claimant acquired the property allowed that development. THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board hereby determines, based on these findings and conclusions and the Administrator's report in Exhibit "A," that the Frick claim is eligible under DCC 14.10.100. Section 2. The Board hereby elects to not apply zoning and nonexempt land use regulations to the subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. Claimant is hereby authorized to use the subject property as permitted at the time she acquired the property. Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the time she acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect on June 23, 1972. 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 MAY BE REQUIRED FOR THE DEVELOPMENT OR USE OF THE SUBJECT PROPERTY. THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS SPECIFIED ABOVE. DESCHUTES COUNTY LACKS THE AUTHORITY TO WAIVE ANY STATE REGULATIONS OR LAWS. STATE LAWS AND REGULATIONS MAY APPLY TO THE USE OF THE PROPERTY DESCRIBED HEREIN, AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON. Section 5. This order does not affect any land use regulations of the State of Oregon. If the use allowed by Section 2, above, remains prohibited by a State of Oregon land use regulation, the Planning Director shall send notice of the Board's decision to the Director of the Department of Land Conservation and Development. The notice shall include a statement that the County will not accept an application for a building permit related to the newly allowed use on the property until the earlier of the following events: (i) notice by the Department of Land Conservation and Development that it concurs with the Board's decision, or (ii) a date 180 days from issuance of the Board's decision where no response is made to the notice by the Department of Land Conservation and Development. PAGE 2 of 3- ORDER No. 2005-036 (05/25/05) Section 6. This Order shall be recorded in the Deschutes County Deed Records together with portions from the deed or other instrument in Exhibits A and B sufficient to identify the subject property for recording purposes. V-41-111 Q~~ DATED this day of , 2005. ATTEST: Recording Secretary PAGE 3 OF 3- ORDER No. 2005-036 (05/25/05) BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, GON rnAA UZzrnr V nt 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 25, 2005 From: Michael A. Maier, County Administrator RE: Measure 37 Claim - Terry A. Frick 21721 Butler Market Road, Bend Introduction The County has processed the initial Measure 37 claims using its brief claim form, evaluating the initial submission, asking at least two times that the Claimant furnish more evidence to complete or clarify the claim, and preparing this report and recommendation under DCC 14.10, the Measure 37 ordinance. The County's claims process has been amended to recognize that less precise evidence of value may be sufficient to evaluate claims, since there are currently no county funds available for payment of compensation. Also, the ordinance provides further opportunities for affected neighbors to present evidence and testimony at the Board meeting when these claims are considered. This report and recommendation is intended to be a summary and evaluation of evidence in the record. The report may be attached to the Board's Order which decides Measure 37 claims, as a factual basis for the Order. Any factual changes or additions to this report from testimony or other evidence can be made part of the Board's Order. Claimants and affected parties have the opportunity to rebut this Report and provide additional relevant evidence to the Board. Also, under the County's process, claimants must provide evidence that the desired use of the property, which may be allowed by a waiver of County regulations is feasible, i.e., not prevented by physical, utility or other development limitations of the site. Report and Recommendation - DCC 14.10.090 This is my report and recommendation on this Measure 37 claim received when Measure 37 was in lawful effect. Claimant has paid the filing fee and the County's official demand form has been submitted. The property, shown on the attached map, is about 4.8 acres (see attached). The current zoning is Exclusive Page 1 of 5 -Frick (05/18/05) EXHIBIT ___6,____ PAGE ___L.__ Farm Use, Tumalo/Redmond/Bend (EFUTRB) with a farm use minimum lot size. The claimant's desired use is a 4-lot subdivision. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Terry A. Frick, sole owner Claimant presented a copy of Contract of Sale showing that title was vested in Robert G. and Terry A. Frick owners and recorded at Vol. 17, p. 298 of Deschutes County records dated June 23, 1972. Staff has confirmed that the Contract of Sale is so recorded. The Fricks obtained a warranty deed to the property dated December 12, 1978, recorded at Vol. 295, p. 784. Robert G. Frick is the former husband of the present owner. The 1996 deed conveying his interest in the subject property to Terry A. Frick is recorded at Vol. 429, p. 434 and 2000 p. 34935 of Deschutes County deed records. Owner Date of Acquisition - June 23, 1972 The date of acquisition by the current owner is the relevant date for Board consideration of waivers under section (8) of Measure 37. The compensation section of Measure 37, section (6), uses the acquisition date of a family member to determine the extent of reduction in value for compensation. Since the County has no funds budgeted for payment of compensation, waivers that are issued by the County are limited by section (8) of Measure 37 to county land use regulations that were adopted after the later acquisition date of the current owner. If a waiver is granted as to county land use regulations which were adopted after the current owner's acquisition date, no compensation is due, even if the prior family member held the property for many years. While this may seem inconsistent, the measure was, evidently, written to encourage waivers of local and state land use regulations. The first date of the current owner's acquiring an interest is the date of the recorded Contract of Sale. Current owner, Terry A. Frick, was the wife of Robert G. Frick in 1972, is now the sole owner of the subject property. Terry A. Frick acquired the property in 1972 and has been an owner continuously since that time. Page 2 of 5 -Frick (05/18/05) EXHIBIT A PAGE 2- Restrictive Regulation - EFUTRB 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 Claimant has identified only the EFU zoning as the land use regulation restricting the desired use. This regulation is a county land use regulation, which is subject to Measure 37 claims. Enforcement of County Regulation - futile DCC 14.10.040(G). Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against them. There is no evidence that Claimant has applied for a land division of the property resulting in the current zoning being enforced on the subject property. Claimant has not demonstrated that submitting an application for such a land division would be futile. However, this Report confirms that such an application for the desired use would violate the current zoning and be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this claim. Reduction in Value - $300,000 alleged on Claim Form The ordinance requires that the Claimant provide evidence of the amount of the claim in alleged reduction in the fair market value of the property resulting from the enforcement of the County's land use regulation. • Claimant has submitted a letter that shows a future Avion Water Company water main as evidence that domestic water is available. • Claimant has submitted a letter from real estate broker stating his opinion as evidence that electricity is available. • Claimant has submitted a letter from a real estate broker stating his opinions that each proposed lot would qualify for septic permit approval as evidence that septic approval is feasible in the area. • Claimant has submitted a map that demonstrates access from Butler Market Road for four proposed lots. Page 3 of 5 - Frick (05/18/05) 3 EXHIBIT PAGE • Claimant has submitted a comparative market analysis from a GRI real estate broker concluding that each of the four proposed lots has a market value of $150,000 - $170,000. There is no estimates of development costs. • Claimant has not submitted an appraisal of the reduction in value or evidence of the reduction in value that complies with DCC 14.10.040(l). Assuming Claimant could obtain approval of a subdivision of the property, but not under current EFU zoning restrictions, the value of Claimant's property for Measure 37 purposes would be substantially reduced. Effect of County Waiver - Measure 37 clearly allows the County to waive its non exempt land use regulations only back to the date the current owners, not family members, acquired the property: "(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the property owner to use the property for a use permitted at the time the owner acquired the property.' (emphasis added) 11(c) "Owner" is the present owner of the property, or any interest therein." In this case the present owner has continuously owned an interest in the property since 1972. This predates the November 15, 1972 effective date of 5 acre minimum lot size of PL-5, the County zoning ordinance. The terms of PL-2, the October 1, 1970 subdivision ordinance would be applicable. That ordinance, also, contains a 5 acre minimum lot size for a rural subdivision (See Section 109.C.27.d). Therefore, a waiver of current land use regulations would result in application of the regulations in effect on the date the present owner acquired the property. Conclusion and Recommendation The present owner of the property has submitted a claim pursuant to Measure 37 which demonstrates eligibility for her use of the subject property based on non exempt land use regulations in effect on June 23, 1972, the date she acquired an interest in the property. The zoning of the subject property at the time. There is evidence in the record that some additional development on the subject property would be feasible for available domestic water, sanitary waste disposal and road access. Therefore, the desired Page 4 of 5 - Frick (05/18/05) EXHIBIT A PAGE V use of a 4 lot subdivision seems to be feasible for water, septic and access. The zoning that was in effect at the time the current owners acquired the property would be applied to a subdivision application for that use. My recommendation is that the Board approve a waiver in the form of Order attached. This Order would have the effect of waiving the nonexempt County land use regulations which were not in effect until after June 23, 1972, to allow the owner to use the property in a manner permitted at the time the owner acquired the property. The regulations at the time seem to require a 5 acre minimum lot size for a rural subdivision where public water and sewer are not available. In essence, the County would not apply any land use regulations to the Claimant's property which were not in effect when the Claimant acquired the property. This waiver is not a development permit. Claimant must apply for development of any use which the regulations in effect on June 23, 1972 would allow. Page 5 of 5 - Frick (05/18/05) EXHIBIT A , PAGE S EXHIBIT B The North seven hundred feet (7001) of the Northeast Quarter of the Porthwst Oaarter (NL 1/4 NM 1/41 lying vest or the COX canal, all in section Twenty-tour (24). Tvwnshlp Seventeen (17) South, Range -wive (12)j, East of the Willamette Meridian, Deachutes County, Oregon. Order No. 2005-036; Frick EXHIBIT