2005-972-Order No. 2005-063 Recorded 8/3/2005VIEW DESCHUTES COUNTY OFFICIAL RECORDS yJ 20050972
AEA NANCY BLANKENSHIP, COUNTY CLERK vd
L COUNSEL / COMMISSIONERS' JOURNAL 0810312005 04:09:24 PM
111111111 IIIIIIIIIIIIII11111111 200
5-972
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize William Miles to Use * ORDER NO. 2005-063
the Subject Property as Allowed When he
Acquired the Property
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, William Miles has made a timely demand for compensation under Measure 37 for a
reduction in value to his property at 3255 SW 58 h Street, Redmond, Oregon due to regulations which took effect
after he 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;
On February 23, 2005, William Miles filed a Measure 37 claim with the Community
Development Department.
2. Claimant's property at 3255 SW 58th Street, Redmond, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 3255 SW 58th Street, Redmond, Oregon that were not already in effect until after July 16,
1976, 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 William Miles is the current owner of
the subject property described in Exhibit "B," having acquired it and continuously owned it
since July 16, 1976.
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 subdivision 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. 2005-063 (08/03/05)
6. The Board concurs with the Administrator's report that an application for a subdivision 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 Claimant's property would be
futile.
7. The regulation, EFUTRB zoning, was not in effect at the time Claimant acquired the property
The Board concurs with the Administrator's report that claimant has demonstrated that domestic
water, septic, and road access for the desired use on the subject property may be feasible.
Despite the lack of a precise amount of reduction in value, the loss of the ability to add eight
additional buildable lots from the subject property would be a substantial amount of reduction in
fair market value if the regulations at the time Claimant 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 and conclusions and the
Administrator's report in Exhibit "A," that the Miles 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.
Claimant is hereby authorized to use the subject property as permitted at the time he acquired the property.
Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time he acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect on July 16, 1976. 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's 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
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. 2005-063 (08/03/05)
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 day of August, 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ak-
TOM DEWOLF, Chair _
ATTEST: 2==
(F6"AA ~A~ Recording Secretary DENNIS R. LUKE, Commissioner
PAGE 3 of 3- ORDER No. 2005-063 (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.ora
TO: Board of County Commissioners
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - William Miles
3255 SW 58th Street, Redmond
Introduction
DATE: August 3, 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 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 that 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 February 23, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and the County's official demand form
has been submitted. The property, at Assessor's Map No. 1512250000201 shown on the attached map,
is about 41.5 acres. The current zoning is Exclusive Farm Use, Tumalo/Redmond/Bend (EFUTRB) with a
Page 1 of 4 - Exhibit A - Order No. 2005-063
farm use minimum lot size. The Claimant's desired use is an 8-lot subdivision with lots of 5 acres each.
The following is an analysis of the evidence in the record on the elements of this Measure 37 claim.
Current Owner - William Miles, sole owner
Claimant presented a July 16, 1976 Memorandum.of a copy of Contract of Sale to William Miles recorded
at Vol. 285, p. 246 of the Deschutes County records. A Warranty Deed was executed to William Miles on
April 9, 1984.
Owner Date of Acquisition - July 16, 1976
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. In this case,
Claimant's Aunts acquired the property in 1956. 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 that 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 owner's acquiring an interest is the date of the Contract of Sale on July 16,
1976.
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
time the property was acquired. The Claimant must also show that these identified regulations cause a
loss of property value.
The Claimant has identified 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.
Page 2 of 4 - Exhibit A - Order No. 2005-063
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance that restricts the current owner's 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 a subdivision 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 - $600,000 alleged on Claim Form
The ordinance requires that the Claimant 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.
• Claimant has submitted no evidence that domestic water is available.
• Claimant has submitted no evidence that septic approval is feasible in the area.
• Claimant has not submitted a map that demonstrates access from a public road for the eight
proposed lots.
• Claimant has submitted an "opinion letter" from a real estate broker concluding that each of the
eight proposed lots has a market value of $210,000 - $220,000. Estimates of development costs
were $12,000 per well, and $6,000 to $7,000 per septic system for each lot.
• Claimant has 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 Claimant could obtain approval of a subdivision of the property, but not under current EFU
zoning restrictions, the value of Claimant's property for Measure 37 purposes would be substantially
reduced by that current zoning.
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,
Page 3 of 4 - Exhibit A - Order No. 2005-063
remove, or not to apply the land use regulation or land use regulations to allow
the Property to use the property 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 owner has continuously owned an interest in the property since 1976. This
follows the November 15, 1972 effective date of 5 acre minimum lot size of PL-5, the County zoning
ordinance.
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 present owner of the property submitted a claim pursuant to Measure 37 that demonstrates eligibility
for his use of the subject property based on non exempt land use regulations in effect on July 16, 1976,
the date he acquired an interest in the property, including the zoning of the subject property at that time.
There is opinion evidence in the record that some additional development on the subject property would
be feasible for available domestic water, sanitary waste disposal, and road access. Therefore, the desired
use of an 8-lot subdivision may be feasible for water, septic and access. The zoning that was 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 that were not in effect until after
July 16, 1976, to allow the owner to use the property in a manner permitted at the time the owner
acquired the property. The regulations at the time seem to require a 5 acre minimum lot size for a rural
subdivision where public water and sewer are not available. In essence, the County would not apply any
land use regulations to the Claimant's property that were not in effect when the Claimant acquired the
property. This waiver is not a development permit. Claimant must apply for development of any use which
the regulations in effect on July 16, 1976 would allow.
Page 4 of 4 - Exhibit A - Order No. 2005-063
EXHIBIT B
A parcel of land described as the NANA and also that
portion of the NANA lying West of the right of way
of Vosberg Road, Section 25, Township 15 South, Range
12 East of the Willamette Meridian excepting:
Connencing at a 1" pin at the 1/4 corner common to said
Sections 24 and 25. Township 15 South, Range 12 East
of the Willamette Meridian, the initial point; thence
S890 54' 40" W along the Northerly line of said NW%
1391.19 feet to a 4" pin at the West 1/16th corner
and the true point of beginning; thence N890 54' 50"E
along the Northerly line of said NW4, 160.00 feet; thence
S019 17' 34" West along an existing fence line, 1318.86
feet; thence 5890 53' 32" W along the Southerly line
of said NEkNWh, 135.50 feet to a 5/8" pin at the NW 1/16th
corner= thence N00° 13' 42" E along the Westerly line
of said NEWWh, 1318.54 feet to the point.of beginning,
containing 4.4722 acres.
Order No. 2005-063; Miles