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2005-961-Order No. 2005-052 Recorded 7/28/2005DESCHUTES CLERKDS Q 20050961 KIEWED COMMISSIONERS' JOURNAL 01/28/2005 03;11;53 PM LEGAL COUNSEL II II I III IIIIIIIIIIIIIII I IIII 20-9 i I BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Robert and Lumae Malone to Use the Subject Property as Allowed When the Property was Acquired * ORDER NO. 2005-052 * 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 and Lumae Malone have made a timely demand for compensation under Measure 37 for a reduction in value to his property at 64880 Half Mile Lane, Bend, Oregon due to regulations which took effect after Robert and Lumae Malone acquired an interest in 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 9, 2005, Robert and Lumae Malone ("Claimants") filed a Measure 37 claim with the Community Development Department. 2. Claimants' property that is the subject of the claim is located at 64880 Half Mile Lane, Bend, Oregon, within Deschutes County. 3. The County Administrator has recommended that the claim is eligible for compensation, and that current EFU 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 Robert and Lumae Malone are the current owners of the subject property described in Exhibit "B," Lumae and Robert Malone having acquired an interest and continually owned an interest in the subject property since June 24, 1977. PAGE 1 OF 3- ORDER No. 2005-052 (07/27/05) The Board concurs with the Administrator's report that the current zoning for the subject property is EFU, 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, EFU 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 applicable zoning in 1977 under County regulation PL-5 and a 5 acre minimum lot size in 1970 under County regulation PL-2 at the time Claimants acquired the property. 8. The Board concurs with Administrator's report that Claimants have not demonstrated that electricity, domestic water, 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 Malone claim is eligible under DCC 14.10.100. Section 2. The Board hereby elects to not apply current EFU 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. Lumae and Robert Malone may apply and that use shall be permitted if the subject property fully complies with the regulations in effect on June 24, 1977. 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. PAGE 2 OF 3- ORDER NO.2005-052 (07/27/05) 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 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 ea-y of July, 2005. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: Recording Secretary PAGE 3 OF 3- ORDER NO.2005-052 TOM DEWOLF, Chair 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 and Lumae Malone 64880 Half Mile Lane 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 9, 2005 when Measure 37 was in lawful effect. Claimants paid the filing fee and submitted an official demand form. The property, tax lot number 161227D001000, located at 64880 Half Mile Lane, Bend, Oregon, and shown on the attached map, is estimated by claimants to be approximately ten acres. The current zoning is EFU, Page 1 of 4 - EXHIBIT A - ORDER NO. 2005-052 which precludes a division of this property. The Claimants' desired use is a subdivision of the property into four 2.5 acre lots and Claimants allege a loss of $350,000. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owners - Robert and Lumae Malone Claimants submitted a copy of a contract of sale that demonstrates they both acquired an interest in the subject property. The contract is dated June 24, 1977. That contract stipulated that the deed executed from the contract would be to Lumae Malone only. On October 21, 1988 Lume Malone executed a quitclaim to Lumae and Robert Malone. Both the warranty deed in favor of Lumae Malone and the quitclaim deed in favor of Lume and Robert Malone were recorded at the same time. Owner Date of Acquisition - Lumae and Robert Malone June 24, 1977. 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. Oregon statutes provide that buyers of land sale contracts are to be considered owners. Therefore, the date of acquisition for Claimants Lumae and Robert Malone is the date of the execution of the above discussed contract. That document was recorded in the Deschutes County Deed Records at Vol. 172, page 2074, on June 23, 1977. Restrictive Requlation - EFU 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 4 - EXHIBIT A - ORDER NO. 2005-052 The claim form identifies 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. 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. This report confirms that an application for the desired use would violate the current minimum lot size and be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this claim. Reduction in Value - $350,000 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 not submitted evidence that domestic water is available. • Claimants have not submitted evidence of available electricity for the desired additional lots. • Public road access to new proposed lots has not been demonstrated by a rough drawing. • Claimants' letter estimates a reduction in value based on sales prices per lot without an estimate of 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. • County records indicate an approved septic permit on the property dated July 14, 1989. • 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 EFU Claimants have explained in their materials that a County waiver of application of the current EFU zoning would allow them to seek a subdivision of the subject property consistent with the lack of zoning in effect on June 24, 1977, Claimants' date of acquisition of an interest in this property. 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 qualification Page 3 of 4 - EXHIBIT A - ORDER NO. 2005-052 for a land division can be resolved consistent with the applicable 1977 regulations for Lumae and Robert's claim. Those regulations include PL-5 (1971) which seems to require a 5 acre minimum lot size. 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 June 24, 1977, the date they acquired an interest in the property. There is some evidence in the record that development of additional lots, their desired use, might be feasible for the installation of a septic system but no evidence of feasibility of the property for electricity, and domestic water. 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 $350,000, the market value estimate of additional lots. This does not seem to take into consideration the development costs of the proposed lots. My recommendation is that the Board approve Claimants' waiver of the EFU 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 EFU 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 June 24, 1977. Page 4 of 4 - EXHIBIT A - ORDER NO. 2005-052 EXHIBIT B The Northeast Quarter of the Southwest Quarter of the Southeast Quarter (NEkSV%SEk) of Section Twenty-seven (27), Township Sixteen (16) South, Range Twelve (12), East of the Willamette Meridian, Deschutes County, Oregon, in- cluding point use of and subject to the following easements: An easement 60 feet in width along the East side and 20 feet in width along the West side of the NWkSEk of said section and 20 feet in width along the West side of the NASASEk of said section. An easement 30 feet in width on either side of the common boundary between the SDVTW%SEh and the NEkSVOEk of said section and an easement 30 feet on, each side of the common boundary between thw West Half and the East Half of the SW;4SEk of said section for purposes of ingress and egress. - - - - Order No. 2005-052; Malone