2005-1022-Order No. 2005-061 Recorded 8/29/2005NANCYUBLANKCOUNTY OFFICIAL
ENSHIP, COUNTY CLERKDS C 2005'1022
R 4 COMMISSIONERS' JOURNAL 08/29/2005 03:38:02 PM
L GALC UNSEL II iij[IIIII111111111111111111
2 1022
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Reconsidering Order No. 2005-044 and
Approving a Waiver of Land Use Regulations to * ORDER NO. 2005-061
Authorize James and Kelly Brown to Use the
Subject Property as Allowed When They Each
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, Cecil Irene Perry and James and Kelly Brown have made a timely demand for
compensation under Measure 37, asserting that County "EFU regulations restricting division of land and
construction of residences on lot [sic]" have resulted in a loss of market value of the Claimants' property; and
WHEREAS, section 8 of Measure 37 authorizes the Board, as the governing body responsible for
adoption and enforcement of County land use regulations, in lieu of paying compensation to not apply the
identified land use regulation that were enacted after a property owner acquired the property, that restricts the
owner's use of that property and that reduces the value of the property; and
WHEREAS, on June 8, 2005, the Deschutes County Board of County Commissioners ("Board")
approved Order No. 2005-044 waiving certain land use regulations pursuant to a claim filed by Cecil Irene Perry
and James R and Kelly A Brown; and
WHEREAS, after that approval, on June 21, 2005, the State of Oregon issued a draft staff report and
recommendation that the claim for Cecil Irene Perry be denied because she no longer held an ownership interest
in the subject property; and
WHEREAS, the Board now understands that the deeds from Perry to the Browns must now be
reanalyzed to determine whether Cecil Irene Perry retained an ownership interest in the subject property; and
WHEREAS, the Board has received the revised report and recommendation of the County
Administrator as required by DCC 14.10.090; and
WHEREAS, the Board has considered the revised 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 12, 2005, the County received from Cecil Irene Perry and from James and Kelly
Brown (collectively referred to as "Claimants") a Measure 37 claim.
PAGE 1 of 3- ORDER No. 2005-061 (08/24/05)
2. Claimants' property is located at 4691 SW Helmholtz Way, Redmond, Deschutes County,
Oregon.
The County Administrator has recommended in lieu of payment of just compensation the
following:
a. With respect to the claim submitted by Cecil Irene Perry that the claim be denied because
Ms. Perry conveyed all of her interest to James R. and Kelly A. Brown with the January 16,
2002 deed. The 2005 "Correction Deed" in which Ms. Perry attempted to take back a life
estate in the subject property did not validly result in her taking back such interest.
b. With respect to the claim submitted by James and Kelly Brown that the zoning regulations
for the subject property at 4691 Helmholtz, Redmond, Oregon that were not already in
effect until after April 11, 2000, not be enforced.
4. The revised Administrator's report is attached and incorporated by reference into this Order as
Exhibit "A."
5. The Board concurs with the Administrator's report that Cecil Irene Perry is not an Owner of the
subject property described in Exhibit "A within the meaning of Measure 37," having first
acquired it in January 19, 1966 but having conveyed a one-half interest on April 7, 2000 to
James and Kelly Brown by way of a Bargain and sale deed recorded on April 11, 2000 in the
Deschutes County Deed Records at Vol./Page No. 2000-14138. On January 16, 2002, Cecil
Irene Perry conveyed her remaining one-half interest to James and Kelly Brown. Thus, James
and Kelly Brown qualify as an owner of the subject property within the meaning of Measure 37,
having acquired it and continuously owned it since April 11, 2000.
6. The Board concurs with the Administrator's report that the current regulation, EFUTRB zoning,
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.
7. 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 Claimants' property would be
futile.
The regulation, EFUTRB zoning, was in effect at the time James and Kelly Brown acquired
their interest in the property.
9. The Board concurs with Administrator's report that claimants have not demonstrated that
domestic water, septic, and road access for the desired use on the subject property are feasible.
Therefore, there is no 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, for James and Kelly Brown, if any nonexempt land use regulations not in effect on April
7, 2000 would affect development of the property, the value of the property would be reduced.
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 claim is eligible under DCC 14.10.100.
PAGE 2 OF 3- ORDER N0.2005-061 (08/24/05)
Section 2. The Board hereby reconsiders its previous decision regarding Cecil Irene Perry's ownership
interest and waiver of County land use regulations for Ms. Perry's interest and denies Ms. Perry's claim.
Section 3. 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.
James and Kelly Brown are hereby authorized to use the subject property as permitted at the time they acquired
their interest in the property. James and Kelly Brown may apply for a use of the subject property consistent with
the regulations in effect at the time they acquired the property. That use shall be permitted if the use fully
complies with all regulations in effect on April 7. 2000.
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 or Section 3, 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.
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 y U414 S , 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY. (OREGON
TOM DEWOLF, Chair
ATTEST: MICM~ L D
ommissio:
Ac'ording-Se etary D NNIS R. LUKE, Commissioner
PAGE 3 of 3- ORDER No. 2005-061 (08/24/05)
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 Reconsideration
James R. and Kelly Ann Brown/
Cecil Irene Perry
4691 SW Helmoltz Wav. Redmond
Introduction
DATE: August 24, 2005
The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking 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 has been amended to recognize 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.
In this case, the Board of Commissioners adopted Order No. 2005-044 on June 8, 2005 based on an
incorrect legal analysis included in my June 3, 2005 Report. This Report reviews the case and proposes a
revised Order after reopening the record and providing to the parties notice and an opportunity to
Page 1 of 5 - EXHIBIT A - Order No. 2005-061
comment. Attached is the Oregon Department of Land Conservation and Development's Final Order and
staff report as support for the reopening of the case.
Report and Recommendation - DCC 14.10.090
This is my report and recommendation on this Measure 37 claim received when Measure 37 was in lawful
effect. Claimant has paid the filing fee and the County's official demand form has not been submitted. The
claimant seeks 10-12 lots of three (3) acres each on a 39.42 acre parcel, Tax lot 1512250002300, located
at 4691 SW Helmholtz Way. The current zoning is Exclusive Farm Use, Tumalo/Redmond/Bend
(EFUTRB) subzone with a farm use minimum lot size. Claimants allege a reduction in real market value of
$600,000 due to the farm use zoning. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim.
Current Owner - James R. and Kelly Ann Brown
Claimants presented a copy of a Deed dated January 19, 1966 showing that title was vested in Cecil
Irene Perry recorded at Vol. 147, p. 47 of Deschutes County deed records (1966 Deed). On April 7, 2000,
Cecil Irene Perry conveyed to James R. Brown and Kelly Ann Brown an undivided one-half interest by
way of a Bargain and Sale Deed recorded in the Deschutes County deed records at 2000-14138 (2000
Deed). On January 16, 2002, Cecil Irene Perry conveyed to James R. Brown and Kelly Ann Brown her
remaining interest in the property by way of a Bargain and Sale Deed recorded in the Deschutes County
deed records at 2002-03005 (2002 Deed). That deed did not reserve a life estate and, in fact, specifically
stated that the intent was to release Cecil Irene Perry's life estate. On January 16, 2005, Cecil Irene Perry
attempted to "correct" the 2002 deed by typing over the language on the 2002 Deed and typing in the
words "Cecil Irene Perry shall however retain her life estate in the property." (sic). That deed is recorded
in the Deschutes County deed records at 2005-01651 (2005 deed). However, the 2005 deed had no legal
effect because all of Cecil Irene Perry's interest was conveyed to the Browns in the 2002 deed with no
reconveyance to Cecil Irene Perry. Therefore, Cecil Irene Perry ceased being an owner as of the 2002
deed.
Page 2 of 5 - EXHIBIT A - Order No. 2005-061
Owner Date of Acquisition - April 7, 2000
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 the Browns acquired an interest is the date of the recorded April 7, 2000 Deed. This
acquisition date establishes Browns as owners for purposes of Measure 37 rights as of that date.
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 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 Claimants have 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.
In order to properly analyze this claim it is necessary to examine the effect of Measure 37 on the property
interest: Section (1) of the Measure refers to land use regulations which "restricts the use of private real
property or any interest therein and has the effect of reducing the fair market value of the property, or any
interest therein..." Section (2) provides that just compensation is based upon "the reduction in the fair
market value of the affected property interest resulting from the land use regulation..."
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.
Page 3 of 5 - EXHIBIT A - Order No. 2005-061
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 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 in March 7, 2005 letter
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 not submitted evidence demonstrating the ability to serve the additional lots with
domestic water.
• Claimant has submitted no evidence that electricity is available.
• Claimant has not submitted a site evaluation for septic permit approval or any evidence that
septic approval is feasible in the area.
• Claimant has not submitted a map of road access to the additional lots proposed.
• Claimant has not submitted an appraisal or evidence of the reduction in value that complies with
DCC 14. 10.040(1).
Inasmuch as Measure 37 requires that the County allow the Browns the use of the property in a manner
allowed when they became owners and County zoning in effect in 2000 would not have allowed a
subdivision of the intensity sought (10-12, 3-acre lots), there is no evidence that the value of the property
has been reduced from the date of acquisition to the present to the extent of the claim. However, if any
nonexempt land use regulations not in effect on April 7, 2000 would affect development of the property,
the value of the property would be likely 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,
Page 4 of 5 - EXHIBIT A - Order No. 2005-061
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, James R and Kelly Ann Brown have continuously owned an interest in the property
since April 7, 2000. Therefore, a waiver of current land use regulations would result in the application of
only the regulations in effect on the date they acquired the property.
Conclusion and Recommendation
Claimant Cecil Irene Perry is not a current owner of the property under subsection 11 of Measure 37
because she has not been a legal owner once her entire interest was conveyed to the Browns on January
16, 2002.
The Browns, on the other hand, have submitted a claim which demonstrates eligibility for their use of the
property based upon County land use regulations in effect on April 7, 2000, the date they acquired their
interest in the property. County EFU and other zoning regulations were in effect on that date. Therefore,
the desired use of a 10-12 lot subdivision, whether feasible or not, would not be permitted by County land
use regulations in effect in 2000. Under Measure 37 Section (8), any obligation to pay compensation is
subject to an option by the government to modify, remove or not to apply the land use regulation or land
use regulations to allow "the owner to use the property for a use permitted at the time the owner acquired
the property." While this will take the form of a waiver, the Browns will not be able to develop the property
in the manner they propose.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving those non-exempt County land use regulations which were not in effect until
after April 7, 2000, the date they acquired their interest in the property.
Page 5 of 5 - EXHIBIT A - Order No. 2005-061
EXHIBIT "B"
7U Southem Quanw of the Southeast Quartar (SEl/4 SEl/4) of Section 25, Township
IS South, pRmmge 12 East of the Willamette Meridian, Deschutes County, Oregon,
that Portion lying West of an cxWng fence„ more
Particulstly described as follows:
Com==bg at = 3/4" Pipe ' the South 114 comer of said Section 2S, from
which the SOWbteast cornet of said Section 25 bears South 89°21'12" East, 2791.70 feet
and a steel cat we men ==frog tst eeaterline of s County Ro*d (not coast Ucted)
bears North 89033'50" East, 14130 AwL acid axle has been erne* used for the
South 114 corner of said Section 25 in wane propatty de=ipdong tfiv Souc h
89'21' 12" P49 81049 the South line of Section 25, 1395.85 feet to the West lino of
SEi/4 SEU4 said Section 25 and the try poi= of begkn'=,- thence North 00024133"
East along said West line, 874.13 feet to the South line of a percal of land described
in a dead recorded in Volume 304, pap 91, Deschutes County Deed Rnorda; thence
South 61 "15'23" East along said South line and its prolongation, 83.24 fact to as
wdsting fc=: thence Seurh 00625'57" ]East along old force 835.07 feet to to South
line of said Section 25; thtace North 89.21.12" West along said South lame, 85.53 feet
to the point of beg &
DOCUMENT ILLEGIBLEJPOOR QUA
LITY AT TIME OF RECORDING.
EXHIBIT PAGE r
EXHIBIT "B"
The assessment and tax roll disclose that the within
described premises were specifically assessed for farm
land. If the land has become or becomes disqualified for
this special assessment under the statutes, an additional
tax, plus interest and/or penalty, may be levied retroac-
tively. If such disqualification occurs as a consequence
of this conveyance, Grantee shall be responsible for
payment of such additional taxes, interest and/or
penalties.
Regulations, including levies, assessments, water
and irrigation rights for ditches and canals of Central
Oregon Irrigation District.
The rights of the and to that portion of
the herein described property lying within the limits of
public roads, streets or highways.
The existence of roads, railroads-, irrigation
aitches and canals, telephone, telegraph and power
transmission facilities.
Rights of way for ditches and canals as shown on the
Deschutes County Assessors Map.
Reservations, as disclosed in State Deed, Recorded:
February 5, 1920, Volume: 27, Page: 284, Deed Records.
An Easement created by instrument, including the
terms and provisions thereof, Dated: February 12, 1973;
Recorded: February 26, 1973; Volume: 192, Page: 855,
Deed Records, and Re-recorded: April 16, 1973; Volume:
194; Page 350, Deed Records; In favor of: Pacific Power
& Light Company, a corporation; For: An electric
transmission and distribution line, together with other
rights and easements appurtenant thereto; Location:
South 30 feet of the SE 1/4 SE 1/4 of Section 25.
DOCUMEiv I' ILLEGIBLEIPOOR QUA
LITY AT TIME OF RECORDING.
EXHIBIT PAGE