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2005-990-Order No. 2005-064 Recorded 8/11/2005DESCHUTES COUNTY CLERKOS CJ 2005-990 REVIE NANCY COMMISSIONERS' JOURNAL 08/11/2005 02:06:58 PM LEGAL COUNSEL 1111111111111111111111111111111 2 05-990 1 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Frederick and Wanda Stills to Use the Subject Property as Allowed When they Acquired the Property * ORDER NO. 2005-064 * 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, Frederick and Wanda Stills have made a timely demand for compensation under Measure 37 for a reduction in value to their property at 20275 Newcomb Road, Bend, 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 in lieu of payment of compensation; 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 March 4, 2005, Frederick and Wanda Stills filed a Measure 37 claim with the Community Development Department. 2. Claimants' property at 20275 Newcomb Road, Bend, Oregon is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property at 20275 Newcomb Road, Bend, Oregon that were not already in effect until after January 1, 1970, 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 Frederick and Wanda Stills are the current owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since January 1, 1970. 5. The Board concurs with the Administrator's report that the current regulation, EFUTRB zoning, if applied to the subject property, would not permit a partition on this subject property. The current regulation is a land use regulation which is not exempt from Measure 37 claims. PAGE 1 of 3 - ORDER No. 2005-064 (08/03/05) 6. The Board concurs with the Administrator's report that an application for a partition on the subject property would be denied if the current zoning were applied. Therefore, such an application to determine enforcement of the current zoning to the Claimants' property would be futile. 7. The regulation, EFUTRB zoning, was not in effect at the time Claimants acquired the property The Board concurs with the Administrator's report that Claimants have demonstrated that domestic water, septic, and road access for the desired use on the subject property are feasible. Therefore, there is substantial evidence that 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 loss of the ability to add additional buildable lots from the subject property would be a substantial amount of reduction in fair market value if the regulations at the time Claimants acquired the property allowed that development; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board hereby determines, based on these findings, conclusions, and the Administrator's report in Exhibit "A," that the Stills claim is eligible under DCC 14.10.100. Section 2. The Board hereby elects to not apply 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 a use of the subject property consistent with the zoning and regulations in effect at the time they acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect on January 1, 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. To the extent that any law, order, deed, agreement or other legally enforceable public or private requirement provides that the subject property may not be used without a permit, license, or other form of authorization or consent, this order does not authorize the use of the subject property unless the Claimants first obtain that permit, license, or other form of authorization or consent. Section 4. 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 5. 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 6. 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 No. 2005-064 (08/03/05) Section 7. 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 /6 day of August, 2005. BOARD OF COUNTY CON OF DESCHUTES COUNTY D ATTEST: MIC M. DALY, Co missioner Recording Secretary R. L PAGE 3 of 3 - ORDER No. 2005-064 (08/03/05) 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 From: Michael A. Maier, County Administrator RE: Measure 37 Claim - Frederick and Wanda Stills 20275 Newcomb Road. Bend Introduction DATE: August 3, 2005 The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial submission, asking 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 on March 4, 2005 when Measure 37 was in lawful effect. Claimants have paid the filing fee and the County's official demand form has been submitted. The property, shown on the attached map, is about 47 acres (see attached). The Page 1 of 5 - Exhibit A - Order No. 2005-064 current zoning is Exclusive Farm Use, Tumalo/Redmond/Bend (EFUTRB) with a farm use minimum lot size. The Claimants' desired use is to partition the property into three lots with lots of 20, 13, and 13 acres and Claimaints alleges a reduction in value of $353,274 due to the inability to partition the property as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Claimants are represented in this proceeding by Bruce White, attorney. Current Owner- Frederick and Wanda Stills Claimants presented a copy of Contract of Sale, showing they purchased the property on January 1, 1970, which was recorded at Vol. 17, p. 952 of the Deschutes County deed records. Claimants received a warranty deed to the property dated January 12, 1973, recorded at Vol. 191, p. 892 of Deschutes County records. Owner Date of Acquisition - January 1, 1970 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. The first date of the current owners' acquiring an interest is the date of the recorded Contract of Sale. Frederick and Wanda Stills acquired an interest in the property in 1970 and they have been owners continuously since that time. Restrictive Regulation - EFUTRB zoning. 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 he or she otherwise could have used the property at the Page 2 of 5 - Exhibit A - Order No. 2005-064 time the property was acquired. The Claimant must also show that these identified regulations cause a loss of property value. The Claimants have identified the EFU zoning as the land use regulation restricting the desired use of a 3-lot partition. This regulation is a County land use regulation, which is subject to Measure 37 claims. The applicability of additional standards listed in the application letter and the requested access change will be determined consistent with the Board's Order when a specific land use application has been received. Non-exempt regulations will not be applied. Public safety regulations or other exempt under subsection (3) E of the Measure cannot be waived. Enforcement of County Regulation - futile DCC 14.10.040(G). Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against them. Claimants have applied for a land division of the property resulting in the current zoning being enforced on the subject property. The Claimants partitioned the propety into two parcels in 2003. (See: Partition Plat no. 2003-55) Claimants have not demonstrated that submitting an application for an additional land division would be futile. However, 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 - $353,274 alleged on Claim Form The ordinance requires that the Claimants provide evidence of the amount of the claim in 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 summarizing well logs for property as evidence that domestic water is available. • Claimants have submitted a letter stating that telephone and electricity are available and serving the existing dwelling. Page 3 of 5 - Exhibit A - Order No. 2005-064 • Claimants have submitted a letter stating that the existing dwelling is served by an approved septic system, as confirmed by County records, as evidence that septic approval is feasible in the area. • Claimants have submitted a letter and map that demonstrates access from Newcomb Road for three proposed lots. • Claimants have not submitted an appraisal of the reduction in value or evidence of the reduction in value that complies with DCC 14. 10.040(1). Assuming Claimants could obtain approval of a partition of the property, absent current EFU zoning restrictions, the value of Claimants' property for Measure 37 purposes would be substantially reduced. Effect of County Waiver - Measure 37 clearly allows the County to waive its non exempt land use regulations only back to the date the current owners, not family members, acquired the property: "(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the property owner to use the property for a use permitted at the time the owner acquired the property, ,(emphasis added) 11(c) "Owner" is the present owner of the property, or any interest therein. " In this case, the present owners have continuously owned an interest in the property since January 1, 1970. This predates the November 15, 1972 effective date of 5-acre minimum lot size of PL-5, the County zoning ordinance. The terms of PL-2, the October 1, 1970 subdivision ordinance would not be applicable, as it was adopted after the date of Claimants' recorded land sale contract. 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 Page 4 of 5 - Exhibit A - Order No. 2005-064 The present owners of the property have submitted a claim pursuant to Measure 37 which demonstrates eligibility for their use of the subject property based on nonexempt land use regulations in effect on January 1, 1970, the date they acquired an interest in the property. There seems to have been no zoning of the subject property at the time. There is evidence in the record that some additional development on the subject property would be feasible for available domestic water, sanitary waste disposal and public road access. Therefore, the desired use of a 3-lot partition seems to be feasible for water, septic and access. The non-exempt regulations that were in effect at the time the current owners acquired the property would be applied to a subdivision application for that use. My recommendation is that the Board approve a waiver in the form of Order attached. This Order would have the effect of waiving the non-exempt County land use regulations which were not in effect until after January 1, 1970, to allow the owners to use the subject property in a manner permitted at the time the owner acquired the property. In essence, the County would not apply any land use regulations to the Claimants' property which were not in effect when the Claimants acquired the property unless they are exempt from a Measure 37 waiver under subsection (3)E of the Measure. This waiver is not a development permit. Claimants must apply for development of any use that the regulations in effect on January 1, 1970 would allow. Page 5 of 5 - Exhibit A - Order No. 2005-064 EXHIBIT B Parcel 1 of Partition Plat No. 2003-52. Order No. 2005-064; Stills