2005-800-Order No. 2005-045 Recorded 6/10/2005FICIAL REVIE D NDESCH ANCYUBLANKENSHIP,F000NTY CLERKS vu 2005N800
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Compensation and a Waiver of
Septic Permitting Land Use Regulations for Janice * ORDER NO. 2005-045
R. Cralle and Marilyn K. Woody
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, Janice R. Cralle and Marilyn K. Woody made a timely demand for compensation under
Measure 37 for a reduction in value to their property at 55960 and 56006 Browning Dr., Bend, Oregon due to
regulations which allegedly took effect after they acquired this property, and
WHEREAS, subsection 8 of Measure 37 authorizes the Board, as the governing body responsible for
adoption and enforcement of County regulations, to not apply identified land use regulation that restrict the
owners' 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 December 14, 2004, Janice R. Cralle and Marilyn K. Woody filed Measure 37 claims with
the Community Development Department.
2. Claimants' properties at 55960 and 56006 Browning Dr., Bend, Oregon are within Deschutes
County.
3. The County Administrator has recommended that the claim is not claim eligible and that current
septic permitting regulations for the subject properties at 55960 and 56006 Browning Dr., Bend,
Oregon continue to be enforced. In lieu of payment of just compensation to Claimant is not due
because the sanitary sewer regulations are for the protection of public health and safety. 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 Janice R. Cralle and Marilyn K. Woody
seem to be the current owners of the subject properties described in Exhibit "A."
5. The Board concurs with the Administrator's report that the current septic permitting regulations
for the subject properties land use regulations which are exempt from Measure 37 claims.
PAGE 1 of 2- ORDER No. 2005-045 (05/25/05)
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 Cralle/Woody claims are not eligible under DCC 14.10.100
because the restrictive regulations identified are exempt from Measure 37 compensation and waivers of land use
regulations.
Section 2. The Board hereby elects to continue to apply current sanitary sewer regulations to the subject
property described in Exhibit "B." Claimants may apply for septic permits for the subject properties consistent
with the regulations now in effect. That use shall be permitted if the subject properties fully comply with these
regulations which are exempt from Measure 37 claims.
Section 3. This Order does not affect any land use regulations of the State of Oregon. This Order
applies only to the local regulations specified above. Deschutes County lacks the authority to consider waiver of
any state regulations or laws. State laws and regulations may apply to the use of the property described herein.
DATED this day of , 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY. OREGON
TOM IDEWOLF, Chair
ATTEST: 1GIIC`1 f DALY, C issio:
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Recording Secretary ENNIS R. LUKE, Commissioner
PAGE 2 of 2- ORDER No. 2005-045 (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
DATE: May 25, 2004
From: Michael A. Maier, County Administrator
RE: Measure 37 Claims - Janice R. Cralle/Marilyn Woody
55960 and 56006 Browning Drive Bend
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 to 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 these two Measure 37 claims by the same individuals on two
adjacent parcels which were received December 14, 2004 and December, 2004 when Measure 37 was in
lawful effect. Claimants have not paid the filing fee and the claim form they submitted is incomplete. The
Page 1 of 3 - CralleNVoody
EXHIBIT _A PAGE
claimants' desired uses are to place a residential dwelling on each property. The following is an analysis
of the evidence in the record on the elements of this Measure 37 claim
Current Owner - Janice R. Cralle, Marilyn K. Woody
Claimants presented an undated partial copy of a warranty deed showing that title is jointly vested in
them. According to the claim forms, their ownership dates from November 10, 1995. Ownership was not
verified beyond what was submitted.
Owner Date of Acquisition - alleged November 10, 1995
The date of acquisition by the current owner is the relevant date for Board consideration of waivers under
subsection (8) of Measure 37. The compensation section of Measure 37, subsection (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 subsection (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 based on the current owner's acquisition
date, no compensation is due, even if the prior family member held the property for many years. While
this may seem inconsistent, the measure was, evidently, written to encourage waivers of local and state
land use regulations.
The date of the current owner acquiring an interest is the date of the recorded warranty deed.
Restrictive Regulation - septic permits
Under the terms of the Measure 37 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 states that claimants "are only seeking septic approval permits." These regulations are
county land use regulations, which are exempt from Measure 37 claims because they protect public
health and safety.
Page 2 of 3 - Cralle/Woody
n ^r
EXII-11BIT
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Measure 37 has a list of regulations which may restrict claimants' desired uses but which are exempt from
Measure 37 compensation or waivers of regulations. Subsection (3)(B) states:
"(3) Subsection (1) (compensation) of this act shall not apply to land use regulations;
(B) Restricting or prohibiting activities for the protection of public health and safety, such as
fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and
pollution control regulations." (Emphasis and parenthesis added.)
This exemption for public health and safety regulations explicitly includes health and sanitation
regulations. The County's regulations on the installation and use of septic systems are therefore not
subject to Measure 37 claims.
Conclusion and Recommendation
The current owners of the subject property have submitted claims pursuant to Measure 37 which do not
demonstrate Claimant's eligibility for a Measure 37 claim relating to the subject property based on land
use regulations in effect on November 10, 1995, the date they allegedly acquired the property. The septic
permitting ordinances which restrict use of the property have been continuously in force since before the
current owners claim to have acquired the properties. Furthermore, under the terms of Measure 37
subsection (3)(B), neither compensation nor a wavier of the restrictive regulations is due when the
restricting regulations protect public health and safety, and more specifically sanitation regulations.
My recommendation is that the Board deny Claimant's waiver of the sanitation regulations in the form of
the Order attached.
Page 3 of 3 - Cralle/Woody EXHIBIT _-A-PAGE 3
EXHIBIT B
LOT EIGHT (8), BLOCK TWO (2), SUNDANCE, PHASE I, DESCHUTES
COUNTY,OREGON
f-W1@1T
Order No. 2005-045; Cralle/Woody