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2005-799-Order No. 2005-044 Recorded 6/10/2005i i /AEVIEW DESCHUTES RECORDS NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 06/10/005 03;19;54 PM LEGAL COUNSEL II !1)! IIIIIIIIIIIIIIIIIIII III 2 7SS BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Cecil Irene Perry and * ORDER NO. 2005-044 James and Kelly Brown to Use the Subject Property as Allowed When They Each Acquired the Property WHEREAS, On November 2, 2004, the voters of the State of Oregon approved Ballot Measure 37 which added provisions to Oregon Revised Statutes (ORS) Chapter 197 to require, under certain circumstances, payment of just compensation to landowners if a government land use regulation reduces property value. In lieu of just compensation, Ballot Measure 37 authorizes the governing body of a local government to modify, remove or not apply the land use regulation; and WHEREAS, Cecil Irene Perry and James and Kelly Brown have made a timely demand for compensation under Measure 37, asserting that County "EFU regulations restricting division of land and construction of residences on lot [sic]" have resulted in a loss of market value of the Claimants' property; and WHEREAS, section 8 of Measure 37 authorizes the Board, as the governing body responsible for adoption and enforcement of County land use regulations, in lieu of paying compensation to not apply the identified land use regulation that were enacted after a property owner acquired the property, that restricts the owner's use of that property and that 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 January 12, 2005, the County received from Cecil Irene Perry and from James and Kelly Brown (collectively referred to as "Claimants") a Measure 37 claim. 2. Claimants' property is located at 4691 SW Helmholtz Way, Redmond, Deschutes County, Oregon. The County Administrator has recommended in lieu of payment of just compensation the following: a. with respect to the claim submitted by Cecil Irene Perry that the zoning regulations for the subject property at 4691 SW Helmholtz, Redmond, Oregon that were not already in effect until after January 19, 1966, not be enforced. PAGE 1 of 3- ORDER No. 2005-044 (06/08/05) b. with respect to the claim submitted by James and Kelly Brown that the zoning regulations for the subject property at 4691 Helmholtz, Redmond, Oregon that were not already in effect until after January 16, 2002, not be enforced. 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 Cecil Irene Perry is an Owner of the subject property described in Exhibit "A within the meaning of Measure 37 having acquired it and continuously owned it since January 19, 1966. James and Kelly Brown also qualify as an Owner of the subject property within the meaning of Measure 37, having acquired it and continuously owned it since January 16, 2002. 5. The Board concurs with the Administrator's report that the current regulation, EFUTRB zoning, 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. 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 Claimants' property would be futile. 7. The regulation, EFUTRB zoning, was not in effect at the time Ms. Perry acquired the property. However, such regulation was in effect at the time James and Kelly Brown acquired their interest in the property. The Board concurs with Administrator's report that claimants have not demonstrated that domestic water, septic, and road access for the desired use on the subject property are feasible. Therefore, there is no 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 additional buildable lots from the subject property would be a substantial amount of reduction in fair market value if the regulations at the time Ms. Perry 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 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. Ms. Perry is hereby authorized to use the subject property as permitted at the time she acquired the property. Ms. Perry may apply for a use of the subject property consistent with the regulations in effect at the time she acquired the property. That use shall be permitted if the use fully complies with all regulations in effect on January 19, 1966. Section 3. 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. James and Kelly Brown are hereby authorized to use the subject property as permitted at the time they acquired their interest in the property. James and Kelly Brown may apply for a use of the subject property consistent with the regulations in effect at the time they acquired the property. That use shall be permitted if the use fully complies with all regulations in effect on January 16, 2002. PAGE 2 of 3- ORDER No. 2005-044 (06/08/05) Section 4. 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 5. A STATE OF OREGON WAIVER MAY BE REQUIRED POR 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 6. This order does not affect any land use regulations of the State of Oregon. If the use allowed by Section 2 or Section 3, 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 7. 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 this !t day of 12005. ATTEST: Recording Secretary PAGE 3 of 3- ORDER No. 2005-044 (06/08/05) BOARD OF COUNTY COMMISSIONERS OF DESCHU ES COUNT , OREGON TOM DEWOLF, Chai f 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.orq TO: Board of County Commissioners DATE: June 3, 2005 From: Michael A. Maier, County Administrator RE: Measure 37 Claim - Cecil Irene Perry 4691 SW Helmoltz Way, Redmond Introduction The County has processed the initial Measure 37 claims using its brief claim form, evaluating the initial submission, asking 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 not been submitted. The claimant seeks 10-12 lots of three (3) acres each on a 39.42 acre parcel, Taxlot 1512250002300, located Page 1 of 6 - Perry (05/18105) I at 4691 SW Helmholtz Way. The current zoning is Exclusive Farm Use, Tumalo/Redmond/Bend (EFUTRB) with a farm use minimum lot size. Claimants allege a reduction in real market $600,000 due to the farm use zoning. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Cecil Irene Perry (life estate) Claimant presented a copy of a Deed dated January 19, 1966 showing that title was vested in Cecil Irene Perry recorded at Vol. 147, p. 47 of Deschutes County deed records. (1966 Deed) In a Bargain and Sale deed recorded in Deschutes County records dated January 16, 2002 (2002 Deed), Cecil Irene Perry conveyed an undivided one-half interest in the property to James and Kelly Brown, but retained a life estate interest in the property. Staff has confirmed that the deeds are so recorded. The claim was submitted collectively by the Browns and Perry. However, the interests and dates of acquisition of the Browns and Ms. Perry are not identical and need to be analyzed separately. Owner Date of Acguisition -January 19, 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. The first date of the Ms. Perry's acquiring an interest is the date of the recorded 1966 Deed. This claimant continues to own a life estate and the record supports the conclusion that Ms. Perry's interest has been continuous since 1966. The first date the Browns acquired an interest is the date of the recorded 2002 Deed. This acquisition date establishes Browns as owners for purposes of Measure 37 rights as of that date. Page 2 of 6 - Perry (05/18/05) Restrictive Regulation - EFUTRB 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 Claimants have 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. In order to properly analyze this claim it is necessary to examine the effect of Measure 37 on each property interest: Ms. Perry and the Browns. Section (1) of the Measure refers to land use regulations which "restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein..." Section (2) provides that just compensation is based upon "the reduction in the fair market value of the affected property interest resulting from the land use regulation..." These two sections indicate the necessity of separately analyzing this claim based upon the affected ownership interest. 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 - $600,000 alleged in March 7, 2005 letter 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. Page 3 of 6 - Perry (05/18/05) • Claimant has not submitted evidence demonstrating the ability to serve the additional lots with domestic water. • Claimant has submitted no evidence that electricity is available. • Claimant has not submitted a site evaluation for septic permit approval or any evidence that septic approval is feasible in the area. • Claimant has not submitted a map of road access to the additional lots proposed. • Claimant has not submitted an appraisal or evidence of the reduction in value that complies with DCC 14. 10.040(1). Assuming Claimant (Perry) could obtain approval of a subdivision of the property under the laws that were in place in 1966 but not under current EFU zoning restrictions, the value of Claimant's property for Measure 37 purposes would be substantially reduced. Inasmuch as Measure 37 requires that the County allow the Browns the use of the property in a manner allowed when they became owners, and County land use regulations in effect in 2002 would not have allowed a subdivision of the intensity sought (10-12 3-acre lots), there is no evidence that the value of the property has been reduced from the date of acquisition to the present. 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 Ms. Perry has continuously owned an interest in the property since 1966. This predates the effective date1970 and the 1972 County regulations. Therefore, a waiver of current land use regulations would result in application of only the regulations in effect on the date she acquired the property. Page 4 of 6 - Perry (05/18/05) In the case of Mr and Mrs. Brown their ownership dates back to 2002, which is later than the adoption of the County zoning and particularly EFU regulations. A waiver of County land use regulations enacted after the date the Browns acquired their ownership interest would not enable these claimants to develop the property in the manner they have proposed Conclusion and Recommendation The present owner of a life estate in the subject property, Ms. Perry, 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 January 19, 1966, the date she acquired the property. There was no zoning of the subject property at the time. There is no 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 use of a 10-12 lot subdivision may not be feasible but would not be prevented by the zoning that was in effect at the time she acquired the property. The Browns, on the other hand, have submitted a claim which demonstrates eligibility for their use of the property based upon County land use regulations in effect on January 16, 2002, the date they acquired their interest in the property. County EFU and other zoning regulations were in effect on that date. Therefore, the desired use of a 10-12 lot subdivision, whether feasible or not would not be permitted by County land use regulations in effect in 2002. Under Section (8) any obligation to pay compensation is subject to an option by the government to modify, remove or not to apply the land use regulation or land use regulations to allow "the owner to use the property for a use permtted at the time the owner acquired the property." While this will take the form of a waiver, the Browns will not be able to develop the property in the manner they propose. My recommendation is that the Board approve a waiver in the form of Order attached. This Order would have the effect of waiving for Ms. Perry the nonexempt County land use regulations which were not in effect until after January 19, 1966, and thus allow Ms. Perry to use the property in a manner permitted at the time she acquired the property. In essence, the County would not apply any land use regulations to Ms. Perry which were not in effect when the she acquired the property. This waiver is not a development permit. Ms. Pent' must apply for development of any use which the regulations in effect on January 19, 1966 would allow. The Order would further provide that as to the Browns' ownership, the County would Page 5 of 6 - Perry (05/18/05) w waive those nonexempt County land use regulations which were not in effect until after January 16, 2002, the date they acquired their interest in the property. Page 6 of 6 - Perry (05/18/05) BRYANT,EMERSON.FIT Fax:5415481895 After recording, return to: Jun 2 2005 13 : 19 P.02 Jim N. Slothower PO Box 351 Band, OR 97709 Until a change is requested, tax statements shall be sent to: C. Irene Rerrv. 4691 SW Hamholts Way. Redmond. OR 97756 consideration: $150,000.00 MMIN"AND BALE DEED CECIL IRENE PERRY, Grantor, hereby conveys to JAMES R. BROWN and KELLY A. BROWN, husband and wife, Grantee, an undivided one- half interest in the following real property as tenants in common, reserving unto Cecil Irene Perry, the Grantor, an estate for the life of Cecil Irene Perry in said property, situated in Deschutes County, Oregon, to-wit: SEE EXHIBIT "A" ATTACHED SUBJECT TO: I. The provisions of a Tenancy in Common Agreement entered into by Grantor and Grantee concurrently herewith which contains restrictions on the right of either party to sell their respective interests in the above described real property. 2. An option in favor of Grantee for the purchase of Grantors undivided one-half interest in the above described real ?In as set forth in the aforemen- tioned Tenancy in Common Agreement. 3. The assessment and tax roll disclose that the within described premises were specifically assessed for farm land. If the land has become or becomes disqualified for this special assessment under the statutes, an additional tax, plus interest and/or penalty, may be levied retroac- tively. If such disqualification occurs as a consequence of this conveyance, Grantee shall be responsible for payment of such additional taxes, interest and/or penalties. 4. Regulations, including levies, assessments, water and irrigation rights for ditches and canals of central Oregon Irrigation District. Page 1 - BARGAIN AND SALE DEED BRYANT,EhERSON,FIT Fax:5415481895 Jun 2 2005 13:19 P.03 5. The rights of the public in and to that portion of the herein described property lying within the limits of public roads, streets or highways. 6. The existence of roads, railroads, irrigation ditches and canals, telephone, telegraph and power transmission facilities. 7. Rights of way for ditches and canals as shown on the Deschutes County Assessors Map. 8. Reservations, as disclosed in State Deed, Recorded: February 5, 1920, Volume: 27, Page: 284, Dead Records. 9. An Easement created by instrument, including the terms and provisions thereof, Dated: February 12, 1973; Recorded: February 26, 1973; Volume: 192, page: 855, Deed Records, and Re-recorded: April 16, 1973; Volume: 194; Page 3501 Deed Records; In favor of: Pacific Power & Light company, a corporation; For., An electric transmission and distribution line, together with other rights and easements appurtenant thereto; Location: South 30 feet of the SE 1/4 SE 1/4 of Section 25. The true consideration for this conveyance is $150,000.00. THIS INSTRU INT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUXENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING oA ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTXZNT TO VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DE?INED IN ORE 30.930. DATED this 47 day of 2.x.,.1 , 2000. CECIL IRENE PERRY STATE OF OREGON ) ca: County of Deschutes) Personally appeared CECIL IRENE PERRY and acknowledged the foregoing instrument be her voluntary act and deed. Before me 2000. RATNER~jNfli At8 L ,Q NOTARY ~U~LIC-OREQON JC COMMisSIoN No. 93003 1MY MMIA81 N i'iXM ~S E o a Y Public Y ~ My Commission Expires: ~(G Tax Account No.: R 2-004 151225 00 02300 Page 2 - BARGAIN AND SALE DEED BRYANT,EMERSON,FIT Fax:5415481895 Jun 2 2005 13:19 P.04 EvIdibit "A" This Sauffie= Quarter of the Sdu&ftst Q=Ov (SEl/4 SEIA) of Section 2S, Towwhip 15 Somih, Range 12 East of the WMamette Meddiza, Ducks ee County, Oregon, EXCEPTING TMMOM that portion bim West of an ec sftg fame, those particularly dawtNed as fallows: Commencing At a 3/4" pipe the Sonth 114 Cotner of said Seaton 253 from which the Southeast earner of &-dd Sstden 2S bears Sow 89°21'12" Pat; 2791.70 fest and a steel ear axle t e centerline of a County Road (=t coastmctad) bars Werth 89*33150" East, 141.$0 bet. mdd Wdc has been ctroneewly used ft the South 114 corner of aid Section 2S is sate property deseriyptiore; tbeaee South 89'21'12" East along the South line of Sacam 25, 1395.SS fore to the, Wert line of SEl/4 SEI/4 mid section 25 and the true point of bsrjttaing; thence North 00'24'33" East along raid West 11=6 $74.13 fat to the Soteth Una of a parcel of land deaotibmd in a dsed recorded In Volume 304, PAP 91, Dembfts Catmty Deed Records, +eseo So'ItYh 61.15'73" East along aid Sotuh lino gad Its pmloap:doa. 53.24 feet to en M61dng fence; thence Sout 00025'37" Esst a1oug aid fence 835.07 feat to the South line of W SMdon 25; theme Nat 89'21'12" Neat along mid South lino, 85.53 fat to the point of begimaxS.