2005-924-Order No. 2005-051 Recorded 7/14/2005COUNTY
RENANCYUBLANKENSHIP,F000NTY CLERKDS Yd ~005.9Z4
.COMMISSIONERS' JOURNAL 0711412005 03:29;14 PM
LEGAL COUNSEL VB2
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Robert E. and Carol S. * ORDER NO. 2005-051
Huckfeldt 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, Robert E. and Carol S. Huckfeldt have made a timely demand for compensation under
Measure 37 for a reduction in value to his property at 3997 SW Helmholtz Way, Redmond, 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;
1. On February 15, 2005, Robert E. and Carol S. Huckfeldt ("Claimant") filed a Measure 37 claim
with the Community Development Department.
2. Claimant's property, that is the subject of the claim, is located at 3997 SW Helmholtz Way,
Redmond, 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 3997 SW Helmholtz Way 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 Robert E. and Carol S. Huckfeldt are the
current owner of the subject property described in Exhibit "B," having acquired an interest, and
continually owned an interest since April 15, 1971.
PAGE 1 OF 3- ORDER No. 2005-051 (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 seems to have been regulations in effect at the time Claimants acquired the property
providing a 5 acre minimum lot size in the area of the subject property.
8. The Board concurs with Administrator's report that Claimants have not demonstrated that
domestic water, septic, and road access for the desired use of additional residential lots on the
subject property are feasible. 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 Huckfeldt 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 15, 1971. 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'
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.
PAGE 2 OF 3- ORDER N0.2005-051 (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 /3'-tay of July, 2005.
ATTEST:
67MAX~-&4UA-
Recording Secretary
PAGE 3 of 3- ORDER No. 2005-051 (07/13/05)
BOARD OF COUNTY COMMISSIONERS
OF 5DESCHUTES COUNTY, REG N
TOM DEWOLF, Chair n
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 - Robert E. and Carol S. Huckfeldt
3997 SW Helmholtz Way
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 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 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. Claimant and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, Claimant 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 15, 2005 when
Measure 37 was in lawful effect. Claimants paid the filing fee and submitted an official demand form. The
property tax lot number 1512250000800, located at 3997 SW Helmholtz Way, Redmond, Oregon, and
Page 1 of 4 - EXHIBIT A - ORDER NO. 2005-051
shown on the attached map, is estimated to be 41 acres. The current zoning is EFUTRB with an
agricultural minimum lot size. The Claimant's desired use is a subdivision of the property into 8 five acre
lots. The amount of the Claim is $750,000. The following is an analysis of the evidence in the record on
the elements of this Measure 37 claim.
Current Owners - Robert E. and Carol S. Huckfeldt
Claimants presented a copy of a deed showing Robert E. Huckfeldt and Carol Huckfeldt as grantees is
recorded at Vol. 194, pp 713 of the deed records. The deed is dated April 15, 1971. Subsequently, the
property was conveyed to the Carol S. Huckfeldt Revocable Trust with Claimant as co-trustees. County
records show Robert E. Huckfeldt conveyed his interest in the property to the Revocable Trust in 2002.
The revocable trust is Claimants' form of ownership.
Owner Date of Acquisition - April 15, 1971
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.
Because Robert and Carol Huckfeldt retain control of the subject property as trustees of the revocable
trust, the acquisition date is that of the April 15, 1971 deed to Robert E. Huckfeldt and Carol Huckfeldt.
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 they otherwise could have used the property at the time
Page 2 of 4 - EXHIBIT A - ORDER NO. 2005-051
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 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.
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.
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 - $750,000 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.
• Claimants have submitted no evidence that domestic water is available, that septic approval is
feasible in the area, or that access from a public road is available.
• Claimants have not submitted an appraisal of the reduction in value or evidence of a precise
reduction in value.
• Assuming Claimants could obtain additional lots on 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 have 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 zoning in effect
on April 15, 1971, Claimants' date of acquisition of this property. The regulation in effect at the time
seems to be PL-2 (1970), which seems to have allowed a land division for a minimum of five acres, from
Page 3 of 4 - EXHIBIT A - ORDER NO. 2005-051
a 41 acre parcel. A County waiver of the current zoning does not waive the requirement that Claimant
demonstrate compliance with earlier zoning 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 regulations in effect on their date of acquisition.
A Claimant who receives 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 owners of the subject property have submitted a claim pursuant to Measure 37 which
demonstrates Claimants' eligibility for their use of the subject property based on land use regulations in
effect on April 15, 1971, the date they acquired the property. There is no evidence in the record that
development of additional lots, their 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. Claimants estimate this reduction in value at $750,000. This
estimate does not seem to take into consideration development costs.
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 land division under regulations in effect on
April 15, 1971.
Page 4 of 4 - EXHIBIT A - ORDER NO. 2005-051
EXHIBIT B
The Northeast Quarter of the Southeast Quarter (NE1/4SE1/4) of Section 25,
Township 15 South, Range 12 East of the Willamette Meridian.
Order No. 2005-051; Huckfeldt