2005-925-Order No. 2005-040 Recorded 7/14/2005RECOR F REVIE D ~N
DESCH ANCYUBLANKENSHIP,F000NTY CLERKDS vu 2005m925
1 LEGAL COUNSEL COMMISSIONERS' JOURNAL 07/14/2005 03:29:24 PM
1111111 1111JI111111111111 II III
200 -aBEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Devon W. and Margaret * ORDER NO. 2005-040
E. Kurtz 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, Devon W. and Margaret E. Kurtz have made a timely demand for compensation under
Measure 37 for a reduction in value to his property at 21850 Butler Market Road, Bend, Oregon due to
regulations which took effect after Devon W. and Margaret E. Kurtz 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 January 21, 2005, Devon W. and Margaret E. Kurtz ("Claimants") filed a Measure 37 claim
with the Community Development Department.
2. Claimants' property that is the subject of the claim is located at 21850 Butler Market Road,
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 not be enforced in lieu of payment of just
compensation to Claimants. 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 Devon W. and Margaret E. Kurtz are
the current owners of the subject property described in Exhibit "B," having acquired an interest
and continually owned an interest since May 15, 1972.
PAGE 1 of 3- ORDER No. 2005-040 (07/13/05)
5. 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 appear to have been zoning at the time Claimants acquired the property.
However, the Subdivision Ordinance PL-2 was in effect, containing some minimum lot size
provisions that seem to apply to an application for a land division at the time claimants acquired
the property.
The Board concurs with Administrator's report that claimants have demonstrated that domestic
water, septic, 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.
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 Kurtz 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 the owners
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 May 15, 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
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 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
PAGE 2 of 3- ORDER No. 2005-040 (07/13/05)
issuance of the Board's decision where no response is made to the notice by the Department of Land
Conservation and Development.
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 day of , 2005.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2005-040 (07/13/05)
BOARD OF COUNTY COMMIS ONERS
OF DESCHUTES OUNTY, O ON
TnM KWON .F . air
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
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Devon W. and Margaret E. Kurtz
21850 Butler Market Road
Introduction
DATE: July 6, 2005
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 January 21, 2005 when
Measure 37 was in lawful effect. Claimants paid the filing fee and submitted an official demand form. The
property, shown on the attached map, is estimated by claimants to be 19.26 acres. The current zoning is
Page 1 of 5 - Exhibit A - Order No. 2005-040
EFUTRB (Multiple Use Agricultural) with an agricultural minimum lot size. The Claimants' desired use is a
subdivision of the property into 19 one-acre lots. Claimants allege a reduction in value of $2,445,000 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 - Devon W. and Margaret E. Kurtz, sole owner
Claimants presented a copy of a contract of sale showing that their interest in the subject property. The
contract is dated May 15, 1972 and recorded at Vol. 185, p. 154 of the deed records. A 1981 deed to the
claimants is recorded at Vol. 350, p. 322.
Owner Date of Acquisition - August 15, 1972
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.
Because Claimants acquired an interest in the property with the execution of the land sale contract, the
date of acquisition is May 15, 1972.
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.
Page 2 of 5 - Exhibit A - Order No. 2005-040
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 Claimants have applied for a land division of the property resulting in the
current zoning being enforced on the subject property. Claimants have 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 - $2,945,000 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 Alex Tchalemian, a GRI real estate broker, stating his
opinion that power and domestic water is available, that septic approval is feasible in the area. A
1971 septic approval for an existing structure on this property was submitted.
• Claimants have evidence of a proposed Local Improvement District ("LID") as evidence of
available road access for the desired additional lots. It should be noted however, that the
improvements paid for by the LID, was based upon the road classification at the time. Thus, with
increased traffic from the subdivision and other Measure 37 claims may require a reclassification
of the roads and upgrade of the improvements.
• The real estate broker's letter estimates 19 lots at $150,000 less $685,000 as a single parcel for
about $2,175,000 reduction in value based on sales prices.
• Claimants have not submitted an appraisal of the reduction in value or evidence of a precise
reduction in value that reflects development costs.
Page 3 of 5 - Exhibit A - Order No. 2005-040
• 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 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 May 15, 1972, Claimants' date of acquisition of this property. The regulations in effect at the time
included PL-2 (1970), which seems to have allowed a partition of 3 lots, each with a minimum of 5 acres,
from a 19.26 acre parcel. A County waiver of the 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 1972 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 May 15, 1972, the date they acquired the property. There is some 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 over $2,000,000,
the market value estimate of 19 market-ready lots. This does not seem to take into consideration the
development costs of 19 lots. There is a much lower reduction in value if the 1970 regulation is applicable
and allows only 3 lots.
Page 4 of 5 - Exhibit A - Order No. 2005-040
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 May 15, 1972.
Page 5 of 5 - Exhibit A - Order No. 2005-040
EXHIBIT B
A tract of land located in the Southwest quarter of the southeast
quarter of Section 13, T.17S., R12E., N.M., Deschutes County, Oregon
described as follows:
Beginning at the South quarter section corner of said section 13,
said corner being the true point of beginning; thence N00025'37'E
along the Newt line of said Southwest quarter, 678.94 feet to a
5/8 inch iron rod; thence 589024'24'8 along a line parallel to
the South line of said Southwest quarter, 1292.89 feet to a 5/8
inch iron rod; thence 300021126611, along a line parallel to the
East line of said Southwest quarter, 678.94 feet to the South line
of said Section 13; thence 889024024'11 along said South line,
1293.69 feet to the true point of beginning, containing 20.16
acres more or less, INCLUDING 13.0 acre shares of COS ire. water.
SUBJECT TO rights of the public in the County Road.
ALSO SUBJECT To an EASEMENT, 5.00 feet wide, being 2.50 feet on
each side of the following described centerline; commencing at
said quarter section corner; thence S8902402402 along the South
line of said Southwest quarter, 390.20 feet to the point of beginning.
for said EASEMENT; thence along the existing irrigation ditch, the
following bearings and distances; M20045111, 62.2 feet; 1119'00'8, 68.9
feet; 556.40 % 71.6 feet; 8102592,'•94.0 feet; 849.10'2, 30.0 feet;
M2.10 % 67.5 feet; 827.10'8, 37.5 feet; 82805018, 101.0 feet;
X76.50811, 126.70 feet; 846'00111, 47.7 feet; N86.35111, 108.6 feet;
81103018 148.8 feet to a point on the North line of the above described
Parcel that lies S8902412402, 302.3 feet from the Northwest corner
thereof. The northerly and Southerly terninii of said EASEMENT are
the North and the South lines of the above described Parcel. Said
EASEMENT is for the benefit of the owner of Parcel 2, MJP 81-17 for
access for maintenance purposes on the existing irrigation ditch
to insure transportation of 16.00 acre shares of COI irrigation
water to said Parosl 2.
Order No. 2005-040; Kurtz