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2005-1046-Order No. 2005-053 Recorded 9/12/2005DESCH TES COUNTY REVI D NANCYU6LANKENSHIP,F000NTY CLERKDS 1~d Z~45'~4'7Y COMMISSIONERS' JOURNAL 09/12/2445 03:19:52 PM II II IIIIIIIIIIIIIIIIIIIIIIIII L GAL OUNSEL 2 0 -1046 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Candace Ewalt, Eric * ORDER NO. 2005-053 Koue and Tim Ewalt to Use 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, Candace Ewalt, Eric Koue, Tim Ewalt and Jennifer Koue have made a timely demand for compensation under Measure 37 for a reduction in value to their property at 7205 NW 19`" Street, Terrebonne, Oregon due to regulations which took effect after the property was acquired by them or by a family member, 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 1, 2005, Candace Ewalt, Eric Koue, Tim Ewalt, and Jennifer Koue ("Claimants") filed a Measure 37 claim with the Community Development Department. 2. Claimants' property that is the subject of the claim is located at 7205 NW 19th, Terrebonne, Oregon, within Deschutes County. The County Administrator recommended that the claim is eligible for compensation, and that current, EFUTE zoning for the subject property at 7205 NW 19th 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 Candace Ewalt and Eric Koue are owners of the subject property described in Exhibit "B," having acquired an interest and continually owned an interest since January 23, 1993. Tim Ewalt is an owner of the subject PAGE 1 of 3- ORDER No. 2005-053 (09/07/05) property, having acquired an interest on March 23, 1994. Jennifer Koue married Erik Kou6 on May 18, 1996, but has not demonstrated acquisition of an interest in the property. The Board concurs with the Administrator's report that the current zoning for the subject property is EFU, which would not permit the desired 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 the desired land division of the subject property would be denied if the current EFUTE zoning regulation is applied to the subject property. Therefore, such an application to determine enforcement of the current zoning to the Claimants' property would be futile. 7. There seems to have been EFU zoning in effect at the time Claimant acquired an interest in the property. 8. The Board concurs with Administrator's report that Claimant has not demonstrated that domestic water, septic, 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 Ewalt claim is eligible under DCC 14.10.100. Section 2. a. As to Candace Ewalt and Eric Koue, the Board hereby elects to not apply any nonexempt land use regulations to the subject property described in Exhibit "B" which were not in effect on January 25, 1993 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 these Claimants acquired an interest in the property. Claimant 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 January 25, 1993. 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. b. As to Tim Ewalt, the Board hereby elects to not apply any nonexempt land use regulations to the subject property described in Exhibit "B" which were not in effect on March 23, 1994 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 an interest in the property. Claimant may apply for land division of the subject property consistent with the regulations in effect at the time he acquired the property. That use shall be permitted if the subject property fully complies with the regulations in effect on March 23, 1994. 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). PAGE 2 of 3- ORDER No. 2005-053 (09/07/05) Section 4. A STATE OF OREGON WAIVER MAYBE 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. 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 :n day of September, 2005. BOARD OF COUNTY OF DESCHUTES COU DEWOLF, Chair ATTEST: JMVAi, 1/~ Recording Secretary ALY R. LUKE, Commissioner PAGE 3 of 3- ORDER No. 2005-053 (09/07/05) Deschutes County Department of Administrative Services 1300 NW Wall St., Ste. 200, Terrebonne, 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 - Candace Ewalt, Erik Koue, Tim Ewalt and Jennifer Koue - 7205 NW 19th Street, Terrebonne 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. Claimant are represented in this matter by attorney, Ed Fitch. Page 1 of 6 - Exhibit A - Order No. 2005-053 Report and Recommendation - DCC 14.10.090 This is my report and recommendation on this Measure 37 claim received February 1, 2005 when Measure 37 was in lawful effect. Claimant paid the filing fee and submitted an official demand form. The property tax lot number 14 13 20 0000100, located at 7205 NW 19th Street, Terrebonne, Oregon, and shown on the attached map, is estimated to be about 58 acres. The current zoning is EFUTE with an agricultural minimum lot size. The Claimant's desired use is a subdivision of the property into 2.5 acre lots. The amount of the Claim is $1,000,000. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owners - Candace Ewalt, Tim Ewalt, Erik Koue, and Jennifer Koue Claimants presented a copy of a warranty deed showing Claimant's late husband, Lewis Koue's interest, along with Carole Koue, his then wife, is recorded at Vol. 125, p. 240 of the Deschutes County deed records. The deed is dated September 4, 1958. Lewis Koue's interest was conveyed to Candace Koue Ewalt (they had married in 1983), Erik Koue, and other children in a January 25, 1993 deed by the personal representative of his estate. Lewis Koue's other children conveyed their interest either to Erik Koue or Candace Ewalt. Candace Ewalt, who married Tim Ewalt in 1992, claims an equity interest from March 31, 1983, her date of marriage to Lewis Koue, however, there is no evidence that Candace Ewalt acquired any interest in the property until she, along with Erik Koue acquired their interest from Lewis Koue's estate in 1993. Erik Koue married Jennifer Koue in 1996. Owner Date of Acquisition - Candace Ewalt, Erik Koue - January 25, 1993; Tim Ewalt - March 23, 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 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 Page 2 of 6 - Exhibit A - Order No. 2005-053 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. Candace Ewalt convey her interest to herself and Tim Ewalt, her husband by deed on March 23, 1994. Erik Koue is the husband of Jennifer Koue, however, there is no evidence indicating that Jennifer Koue acquired any interest in the subject property. Restrictive Regulation - EFUTE 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 by the Claimant or a family member. The Claimants must also show that these identified regulations cause a loss of property value. The claim form identifies only the EFUTE 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. The applicability of additional development standards 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 others 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 that restricts the current owners' use be "enforced" against them. There is no evidence that Claimants have applied for a land division of the property resulting in the current zoning being enforced on the subject property. Claimants have not demonstrated that submitting an application for such a land division under current zoning would be futile. This report confirms, however, 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. Page 3 of 6 - Exhibit A - Order No. 2005-053 Reduction in Value - $1,000,000 alleged on Claim Form 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 submitted no evidence that a domestic water well is available, that septic approval is feasible in the area, or that access from a public road is available. • Claimants have not submitted an appraisal of the reduction in value or evidence of a precise reduction in value. • Assuming Claimants could obtain a 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 - Measure 37 clearly allows the County to waive its non-exempt land use regulations only back to the date the current owner, 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. " 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 in 1958, the family member's date of acquisition of this property. However, the zoning in effect at the time of Claimants Candace Ewalt's and Eric Koue's date of acquisition, would seem to allow a land division with less restrictive zoning than under regulations adopted after they acquired their interest. A County waiver of any current non-exempt regulations not in effect on January 25, 1993 does not waive the requirement that Claimants demonstrate compliance with earlier zoning in a land division application. In that application process, the evidence about the property acreage and qualification for a land division can Page 4 of 6 - Exhibit A - Order No. 2005-053 be resolved consistent with the applicable 1993 regulations. Claimants who receive 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 Two of the current owners of the subject property, Candace Ewalt and Eric Koue, have submitted a claim pursuant to Measure 37 which demonstrates Claimants' eligibility for their use of the subject property based on land use regulations in effect on January 25, 1993, the date they acquired ownership of the property. There is no evidence in the record that development of additional lots, their desired use, would be feasible based upon available domestic water, septic and road access. There is evidence in the record that there is some amount of reduction of value if lots could be created under different regulations. Claimants estimate 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 Claimants' (Candace Ewalt and Eric Koue) waiver of any non-exempt land use regulations not in effect on January 25, 1993 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 any current non-exempt regulations 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 land division under regulations in effect on January 25, 1993. One of the current owners, Tim Ewalt, of the subject property has submitted a claim pursuant to Measure 37 which demonstrates Claimant's eligibility for his use of the subject property based on land use regulations in effect on March 23,1994, the date he acquired ownership of the property. There is no evidence in the record that development of additional lots, the desired use, would be feasible based upon available domestic water, septic and road access. There is evidence in the record that there is some Page 5 of 6 - Exhibit A - Order No. 2005-053 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 Ewalt 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 EXHIBIT B LOT C OF MINOR LAND PARTITION MP-77-185. Order No. 2005-053; Koue-Ewalt