2005-923-Order No. 2005-047 Recorded 7/14/2005FICIAL REVWE DESCHUTESBLANKENSHIPCOUNTY CLERKOS CJ 2005.923
COMMISSIONERS' JOURNAL 01/1412006 03;29;24 PM
LEGAL COUNSEL 1111111 III IIIIIIIIIIIIIIIII III
2005-8 3
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize George J. and Mina G. * ORDER NO.2005-047
Cook to Use 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, George J. and Mina G. Cook have made a timely demand for compensation under Measure
37 for a reduction in value to his property at 7566 N. Highway 97, Terrebonne, Oregon due to regulations which
took effect after they 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;
On February 10, 2005, George J. and Mina G. Cook ("Claimants") filed a Measure 37 claim
with the Community Development Department.
2. Claimants' property that is the subject of the claim is located at 63510 Gentry Loop, Bend,
Oregon, within Deschutes County.
3. The County Administrator has recommended that the claim is eligible for compensation, and
that current EFUTRB zoning for the subject property at 63510 Gentry 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 George J. and Mina G. Cook are the
current owners of the subject property described in Exhibit "B," having acquired an interest and
continually owned an interest since April 4, 1970.
PAGE 1 OF 3- ORDER No. 2005-047 (07/13/05)
The Board concurs with the Administrator's report that the current zoning for the subject
property is EFUTRB, 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
Claimants' property subject to the current regulation, EFUTRB zoning, if applied to the subject
property would be denied. Therefore, such an application to determine enforcement of the
current zoning to the Claimants' property would be futile.
7. There does not seem to be applicable zoning at the time Claimants acquired the property.
The Board concurs with Administrator's report that Claimants have demonstrated that
electricity, domestic water, and road access for the desired use of additional residential lots 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 additional lots on the
subject property would be a substantial amount of reduction in fair market value; now,
therefore,
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 Cook claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply current EFUTRB 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. Claimants are hereby authorized to use the subject property as permitted at the time they acquired
the property. Claimants may apply for land division of the subject property consistent with the regulations in
effect at the time they acquired the property. That use shall be permitted if the subject property fully complies
with the regulations in effect on April 4, 1970. 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 Claimants'
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
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.
PACE 2 of 3- ORDER No. 2005-047 (07/13/05)
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.
DATED this j day of July, 2005.
ATTEST:
Recording Secretary
PACE 3 of 3- ORDER No. 2005-047 (07/13/05)
BOARD OF COUNTY COMMISSIONERS
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: July 6, 2005
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - George J. and Mina G. Cook
63510 Gentry Loop
Introduction
The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking at least two times that the Claimants 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 recognizes 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 10, 2005 when
Measure 37 was in lawful effect. Claimants paid the filing fee and submitted an official demand form. The
property, tax lot number 1712130000100, located at 63510 Gentry Loop, Bend, Oregon, and shown on
Page 1 of 4 - EXHIBIT A - ORDER NO. 2005-047
the attached map, is estimated by claimants to be 77 acres. The current zoning is EFUTRB (Multiple Use
Agricultural) with an agricultural minimum lot size. The Claimants' desired use is a subdivision of the
property into 73 lots. Claimants estimate a $3,000,000 reduction in value if the desired use is not allowed.
The following is an analysis of the evidence in the record on the elements of this Measure 37 claim.
Current Owners - George J. and Mina G. Cook
Claimants presented a copy of a contract of sale showing that their interest in the subject property. The
contract is dated April 4, 1970.
Owner Date of Acquisition -April 4, 1070
The date of acquisition by the current owners 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 owners. If a waiver is granted as to County land use regulations which
were adopted after the current owners 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.
Since Claimants had an interest in the April 4, 1970 land sale contract, that is the date of acquisition for
purposes of this claim.
Restrictive Regulation - EFUTRB zoning
Under the terms of the ordinance, the Claimants must identify County land use regulations that prevent
the Claimants from using the property in a way that they otherwise could have used the property at the
time the property was acquired. The Claimants must also show that these identified regulations cause a
loss of property value.
The claim form identifies only the EFUTRB 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 4 - EXHIBIT A - ORDER NO. 2005-047
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance that restricts the current owners use be "enforced" against them.
Claimants applied for a land division of the property in 2000, resulting in the current zoning being
enforced on the subject property in MP-00-3/CU-00-11, a partition into 3 parcels was approved. That
partition received final approval from the County on February 1, 2005 pursuant to the decision in file no.
FPA-04-62. This report confirms that 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 - $3,000,000 alleged
The ordinance requires that the Claimants 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.
• Claimants have submitted a letter from Avion Water Company stating that domestic water is
available.
• Claimants have evidence of available electricity for the desired additional lots in the form of a
letter from Central Electric Cooperative.
• Road access to 73 lots is demonstrated by a "Tentative Plan" drawing.
• The letter estimates 73 lots estimated at $558,750 net reduction in value based on sales prices
per lot less estimated development and sales costs.
• Claimants have not submitted an appraisal of the reduction in value or evidence of a precise
reduction in value that reflects development costs.
• Assuming Claimants could obtain any subdivision of the property under prior zoning, but not
under current zoning, the value of Claimants' property for Measure 37 purposes has been
reduced.
Effect of County Waiver - remove zoning restriction EFUTRB
Claimants explained in their materials that a County waiver of application of the current EFUTRB zoning
would allow them to seek a subdivision of the subject property consistent with the lack of zoning in effect
on April 4, 1970, Claimants' date of acquisition of an interest in this property. A County waiver of the
Page 3 of 4 - EXHIBIT A - ORDER NO. 2005-047
current regulations does not waive the requirement that Claimants demonstrate compliance with earlier
regulations in a land division application. In that application process the evidence about the property
acreage and qualification for a land division can be resolved consistent with the applicable 1970
regulations.
Claimants who receive a waiver must use the current process to seek the needed development permits
based on the regulations 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 owners of the subject property have submitted a claim pursuant to Measure 37 which
demonstrates Claimants' eligibility for use of the subject property based on land use regulations in effect
on April 4, 1970, the date they acquired an interest in the property. There is some evidence in the record
that development of additional lots, their desired use, would be feasible based upon available electricity,
domestic water, and road access. There is evidence in the record that there is some amount of reduction
of value because additional lots could be created. Claimants estimate this reduction in value at over
$3,000,000, the net market value estimate of 73 lots. This does not seem to take into consideration the
development costs of 73 lots.
My recommendation is that the Board approve Claimants' waiver of the EFUTRB 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 owners to apply for use of the property in a manner permitted at the time the owners acquired
the property. In essence the County would not apply the current EFUTRB zoning to the Claimants'
property, but would apply the regulations which were in effect when Claimants acquired the property. This
waiver is not a development permit. Claimants must apply for a land division under regulations in effect
on April 4, 1970.
Page 4 of 4 - EXHIBIT A - ORDER NO. 2005-047
EXHIBIT B
The East Half of the Northeast Quarter (E1/2NEl/4) of Section Thirteen (13), Township
Seventeen (17) south, Range Twelve (12), East of the Willamette Meridian, Deschutes
County, Oregon.
EXCEPTING THEREFROM that portion of.the Southeast one-quarter, Northeast one-quarter
(SE1/41E1/4) of section Thirteen (13), Township Seventeen (17) South, Range Twelve
(12), East of the Willamette Meridian, Deschutes County, Oregon, more particularly
described as follows: Beginning at the E1/4 corner of said Section 13; thence North
99°09'09"-Waist, 640.17 feet along the South line of said SE1/4NE1/4; thence North
33038137" East, 237.91 feet; thence South 89009,09" East, 509.34 feet to a point on
the Last line of said Section 13; thence South 00017102" West, 200.00 feet along said
East line to the Point of Beginning.
Order No. 2005-047; Cook