2005-1042-Order No. 2005-050 Recorded 9/12/2005i f
/ _ NE gLANKENSHIP, COUNTY CLERK DS ~u ~005~~04~
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P-GA IE J
COMMISSIONERS' JOURNAL 0911212005 03;29:51 PM
C UNSEL III I I IIII IIIIIIII IIII IIII III
20 -10 2
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Esther L. Smith to Use * ORDER NO. 2005-050
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, Esther L. Smith has made a timely demand for compensation under Measure 37 for a
reduction in value to her property at 1700 NW Helmholtz Way, Redmond, Oregon due to regulations which
took effect after Esther L. Smith 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 3, 2005, Esther L. Smith ("Claimant") filed a Measure 37 claim with the
Community Development Department and listed herself as representing all the current owners
of the subject property.
2. Claimant's property that is the subject of the claim is located at 1700 NW Helmholtz Way,
Redmond, 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 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 Esther L. Smith, James A. Smith, C.
Fern Wilde and Pennie S. Walker are the current owners of the subject property described in
Exhibit "B," with Pennie S. Walker having acquired an interest and continually owned an
PAGE 1 of 3- ORDER No. 2005-050 (09/07/05)
interest since September 15, 1990 and Esther L. Smith, James A. Smith, and C. Fern Wilde
having acquired an interest and continually owned an interest since May 28, 2003.
5. 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. EFU zoning seems to be the applicable zoning at the time Claimants acquired the property.
The Board concurs with Administrator's report that Claimant has not demonstrated that
electricity, domestic water, and road access for the desired use of additional residential lots on
the subject property are feasible. Therefore, there is not substantial evidence that the desired use
that is the basis for the alleged reduction in value is feasible for electricity, water, 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; 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 Smith claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply current EFU zoning and non-exempt 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 claimants
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 September 15, 1990 for Pennie S. Walker and May 28, 2003 for
Esther L. Smith, James A. Smith, and C. Fern Wilde. 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.
PAGE 2 OF 3- ORDER No. 2005-050 (09/07/05)
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.
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 t--day of September, 2005.
BOARD OF COUNTY COM SSIONERS
OF DESCHUTES COUNTY. OREGON
DEWOLF, Chair
ATTEST: 1" HAE ALY, C mmissio:
(Nqh~- ( d e/L
Recording Secretary D IS R. LUKE, Commissioner
PAGE 3 of 3- ORDER No. 2005-050 (09/07/05)
C
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: September 7, 2005
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Esther L. Smith
1700 NW Helmholtz Wav. Redmond
Introduction
The County has 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.
Page 1 of 6 - EXHIBIT A - ORDER NO. 2005-050
Report and Recommendation - DCC 14.10.090
This is my report and recommendation on this Measure 37 claim received February 3, 2005
when Measure 37 was in lawful effect. Claimants paid the filing fee and Claimant Esther Smith
submitted an official demand form as representative of all four current owners of the property,
herself, James A. Smith, C. Fern Wilde and Pennie S. Walker. The property, tax lot number
151306D007000, located at 1700 NW Helmholtz Way, Redmond, Oregon, and shown on the
attached map, is estimated by Claimants to be approximately 20 acres. The current zoning is
EFUTRB (Exclusive Farm Use-Tumalo Redmond Bend Subzone) with an agricultural minimum
lot size. The Claimants' desired use is a subdivision of the property into 73 lots and claim a
reduction in value of $3,000,000 due to the inability to subdivide the property under current
zoning regulations. Claimants are represented in this proceeding by Edward P. Fitch, attorney.
The following is an analysis of the evidence in the record on the elements of this Measure 37
claim.
Current Owners - Esther L. Smith, James A. Smith, C. Fern Wilde, and Pennie S. Walker
Claimants presented a copy of a warranty deed showing that their family's interest in the subject
property began with Carl and C. Fern Smith's acquisition on January 26, 1968, recorded at Vol.
157, p. 10 of the Deschutes County deed records. Thereafter, Carl and Fern divorced and a
series of transfers among them and their children ensued. See summary attached as Exhibit C
to this report. The current owners are Esther L. Smith, James A. Smith, C. Fern Wilde, and
Pennie S. Walker.
Claimant's Date of Acquisition - Esther L. Smith, May 28, 2003; James A. Smith, May 28, 2003;
C. Fern Wilde, May 28, 2003; Pennie S. Walker, October September 15, 1990.
The date of acquisition by the current owner-Claimant is the relevant date for Board
consideration of waivers under section (8) of Measure 37. The compensation section of
Page 2 of 6 - EXHIBIT A - ORDER NO. 2005-050
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.
As stated above C. Fern Wilde initially acquired an interest in the subject property by the
recording of a Warranty Deed on January 26, 1968. Since then, however, Ms. Wilde conveyed
and acquired her interest in the subject property several times with her last acquisition being on
May 28, 2003 by bargain and sale deed recorded in the Deschutes County deed records at
2003-35502. James A. Smith initially acquired an ownership interest on September 15, 1990 by
way of a land sale contract, the memorandum of which was recorded in the Deschutes County
deed records on November 14, 1990 at 90-34518. He also conveyed and acquired his interest
in the subject properties several times since that initial date with his last acquisition also being
on May 28, 2003 by the same bargain and sale deed as Ms. Wilde. Esther Smith's first
acquisition of an interest in the subject property was by Bargain and Sale Deed on December 8,
1995, which she conveyed on July 10, 2001 by Bargain and Sale Deed recorded in the
Deschutes County Deed Records at 2001-033136 and reacquired on May 28, 2003 by the same
Bargain and Sale Deed as Ms. Wilde. Thus, for C. Fern Smith, James A. Smith, and Esther L.
Smith, the acquisition date is the date of the last Bargain and Sale deed to them of May 28,
2003.
For Pennie S. Walker, her ownership interest dates back to the September 15, 1990 land sale
contract and has been continuous since then. Thus, the date of acquisition for Ms. Walker is
September 15, 1990.
Page 3 of 6 - EXHIBIT A - ORDER NO. 2005-050
Restrictive Regulation - EFU 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 they 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 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 zoning and
be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $3,000,000 alleged on claim form
The ordinance requires that the Claimant 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 no evidence that domestic water is available.
0 Claimants have submitted no evidence of available electricity for the desired additional
lots.
• Road access to the proposed new lots is not demonstrated by a drawing.
• Claimants have not submitted an appraisal of the reduction in value or evidence of a
precise reduction in value that reflects development costs.
Page 4 of 6 - EXHIBIT A - ORDER NO. 2005-050
• Assuming Claimants could obtain any subdivision of the property under prior zoning, but
not under current zoning, the value of Claimant's property for Measure 37 purposes has
been reduced.
Effect of County Waiver
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 January 26, 1968, when Claimant's family members acquired an
interest in this property. However, the earliest date of acquisition is that of Pennie S. Walker on
September 14, 1990. A County waiver of any current regulations not in effect on September 15,
1990 does not waive the requirement that Claimant Pennie S. Walker demonstrate compliance
with land division regulations in effect on that date. In that application process the evidence
about the property acreage and qualification for a land division can be resolved consistent with
the applicable 1990 regulations. As for the other current owners, their applications for a land
division will have to demonstrate compliance with land division regulations in effect on May 28,
2003.
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
Three of the four current owners of the subject property acquired their current interest on May
28, 2003. One of the current owners acquired her interest on September 15, 1990. There is no
evidence in the record that development of additional lots, their desired use, would be feasible
based upon available electricity, domestic water, and road access. There is evidence in the
Page 5 of 6 - EXHIBIT A - ORDER NO. 2005-050
record that there is some amount of reduction of value if additional lots could be created.
Claimants estimate this reduction in value at over $3,000,000.
My recommendation is that the Board approve Claimant's waiver of non-exempt regulations in
the form of the Order attached. This Order would have the effect of waiving any current County
land use regulations not in effect on May 28, 2003 for James A. Smith, Esther L. Smith and C.
Fern Wilde and waiving any current County land use regulations not in effect on September 15,
1990 for Pennie S. Walker to allow those owners to apply for use of the property in a manner
permitted at the time the Claimants acquired the property. In essence the County would apply
the regulations which were in effect when Claimants acquired the property. This waiver is not a
development permit. Claimant must apply for a land division under regulations in effect on May
28, 2003 and September 15, 1990, respectively.
Page 6 of 6 - EXHIBIT A - ORDER NO. 2005-050
EXHIBIT B
The Southwest Quarter of the Southeast Quarter (SW1/4 SE1/4) of Section Six 0, TOWNSHIP FIFTEEN
(15) SOUTH, RANGE THIRTEEN (13) EAST OF THE WILLAMETTE MERIDIAN, Deschutes County, -Oregon.
EXCEPTING THEREFROM the North Half of the Northwest Quarter of the Southwest Quarter of the
Southeast Quarter (N1/2 NW1/4 SW114 SE1/4) of Section Six (6), TOWNSHIP FIFTEEN (15) SOUTH, RANGE
THIRTEEN (13) EAST. OF THE WILLAMETTE MERIDIAN, Deschutes County, Oregon.
ALSO EXCEPTING THEREFROM. the South Half -of the Northwest Quarter of the Southwest Quarter of,
the.southeast Quarter (S1/2 NW1/4. SW1/4 SE1/4) of. Section SIXIS), TOWNSHIP-FIFTEEN (15) SOUTH;
RANGE THIRTEEN (13); EAST OF THE WILLAMETTE MERIDIAN, Deschutes County, Oregon. .
ALSO EXCEPTING THEREFROM a parcel of land situated -in .a portion of the Southeast Quarter (SE1/4). .
of Sectiob Six (6), TOWNSHIP FIFTEEN (15) SOUTH, RANGE THIRTEEN (13) EAST OF THE WILLAMETTE
MERIDIAN, Deschutes County, Oregon more particularly described as follows:
Comrnencing at a spike and shiner rilonumenting the South Quarter (S1/4) corner of section six (6),
TOWNSHIP FIFTEEN (15) SOUTH, RANGE THIRTEEN (13) EAST OF THE WILLAMETTE MERIDIAN; the Initial
point as well as the true POINT OF BEGINNING; thence North 00003'09" East along the West line. of
the Southeast Quarter (SE1/4) of Section six (6) - 345.35 feet to a 1/2' pipe; thence South 88°07'09"
East - 515.35.feet to a.1/2 pipe; thence North 57°.12'53" East - 260.83 feet to a 1/2",pipe; thence
South 52°05'38" East =143.61 feet to a 1/2" pipe; thence South 05°29'1.9" East.-43.88 feet to a.1/2"
pipe; thence South 67032'22" East • 90.69 feet to a 112" pipe in an- existing fence line; thence south
6504717" East along-said fence line - 86.84 feet to a 1/2" pipe; thence South 701644*55".East along
.said fence line - 316.08 feet to a 1/2' pipe on the East line of the. Southwest Quarter (SW1/4) of said
Southeast Quarter tSE 1/4); thence South 00°17'41 West along said East line.-171.55 feet.to the
South line of said southeast Quarter (SE1/4); thence North 89°38'28".:West along said. South line -
1312.66 feet to the POINT. OF BEGINNING.
Order No. 2005-050; Walker
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July 9, 1997, to allow the Frank Rencher Trust to use the subject property in a manner permitted at the
time it acquired the property. In essence, the County would not apply any land use regulations to the
Frank L. Rencher property which were not in effect when it 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 each of their respective acquisition dates would allow.
Page 6 of 6 - Exhibit A - Order No. 2005-077
has been submitted. The property is about 80 acres. The current zoning is Exclusive Farm Use (EFU)
with a farm use minimum lot size. The Claimants' desired use is to develop the property into a 16-lot
subdivision with lots of 5 acres. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim. Claimant is represented in this proceeding by Edward P. Fitch,
attorney.
Current Owners - Marilyn Gragg, aka Marilyn Knott, individually, and Jane Gragg, Trustee of the Robert
L. Gragg Trust
Claimants presented a series of deeds relating to family member ownership from 1974. A Land Sales
Contract shows Robert and Marilyn Gragg purchased the property under contract in 1974. A deed from
the sellers to the Graggs in 1986 indicates fulfillment of this contract. A Bargain and Sale Deed from
Robert Gragg to the Robert L. Gragg Trust dated March 16, 1994, recorded at 88-00823 of the Deschutes
County deed records seems to be the date that the trust first acquired legal title to the property. A title
report accompanying the claim indicates that each claimant owns the property as tenants in common.
Owners Date of Acquisition - Marilyn Gragg, individually - July 1, 1974; Jane Gragg, as Trustee of the
Robert L. Gragg Trust - March 16, 1994
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 that 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.
The first date Claimant, Robert L. Gragg Trust acquired an interest is March 16, 1994, the date the Trust
was created and title was transferred. Claimant Trust has been an Owner for Measure 37 purposes
continuously since that time. The first date Claimant, Marilyn Gragg acquired an interest is July 1, 1974,
Page 2 of 6 - Exhibit A - Order No. 2005-078
amount of reduction of value if lots could be created under different regulations. Claimant estimates this
reduction in value at $1,000,000. This estimate was based on the 1958 family member acquisition date.
My recommendation is that the Board approve Claimant's (Tim Ewalt) waiver of any non-exempt land use
regulations not in effect on March 23, 1994 in the form of the Order attached. This Order would have the
effect of waiving the current County land use regulations to allow this owner to apply for use of the
property in a manner permitted at the time he acquired ownership of the property. In essence, the County
would not apply any current non-exempt regulations to this Claimant's property, but would apply the
regulations which were in effect when Claimant acquired the property. This waiver is not a development
permit. Claimants must apply for land division under regulations in effect on March 23, 1994.
Since Jennifer Koue has not demonstrated that she is an owner of the subject property, as that term is
defined in Measure 37, 1 would recommend the Order deny her claim.
Page 6 of 6 - Exhibit A - Order No. 2005-053