2005-1049-Order No. 2005-077 Recorded 9/12/2005VIE D LEGAL C UNSEL DESCHUTES COUNTY OFFICIAL RECORDS yJ ~00~.i049 NANCYSLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 09~1Z~Z~05 ~3;Z9:5Z PM II 1[11[1111)1111111111111111111 2 3BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Frank Rencher, individually, and Frank Rencher, Trustee of the Frank L. Rencher Trust, to Use the Subject Property as Allowed When each Acquired their interest in the Property * ORDER NO. 2005-077 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, Frank Rencher, individually and Frank Rencher, Trustee of the Frank L. Rencher Trust made a timely demand for compensation under Measure 37 for a reduction in value to her property at 5245 N.E. 5t11, 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; 1. On March 21, 2005, Frank Rencher, Trustee of the Frank L. Rencher Trust filed a Measure 37 claim with the Community Development Department. This claim was later amended to include Frank Rencher in his individual capacity. 2. Claimants' property at 5245 N.E. 5th Redmond, Oregon is within Deschutes County. 3. The County Administrator has recommended that for the Frank L. Rencher Trust the zoning regulations for the subject property at 5245 N.E. 5U', Redmond, Oregon that were not already in effect until after July 9th 1997, not be enforced in lieu of payment of just compensation to Claimant. The County Administrator has recommended that for Frank Rencher, individually, the zoning regulations for the subject property at 5245 N.E. 5`h, Redmond, Oregon that were not already in effect until after June 22, 1964, 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." PAGE 1 of 3- ORDER No. 2005-077 (09/07/05) 4. The Board concurs with the Administrator's report that Frank Rencher, individually, and the Frank L. Rencher Trust are the present owners of the subject property described in Exhibit "B," having acquired their interests in it and continuously owned it since July 9, 1997 for the Frank L. Rencher Trust and since June 22, 1964 for Frank Rencher. 5. The Board concurs with the Administrator's report that the current regulations, especially EFU 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. 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 Claimants' property would be futile. 7. The Board concurs with the Administrator's report that there is no evidence which demonstrates that the current procedural regulations for land divisions and development applications and approvals have reduced the value of the subject property. The Board concurs with the Administrator's report that Claimants have not demonstrated that domestic water, and septic for the desired use on the subject property are feasible. 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 Claimant, Frank Rencher, 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 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 of the property by the Frank L. Rencher Trust shall be permitted if the subject property fully complies with all regulations in effect on July 9, 1997. That use of the property by Frank L. Rencher, individually, shall be permitted if the subject property fully complies with all regulations in effect on June 22, 1964. 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. However, the current procedural regulations for land division and development applications and approval, including, but not limited to setbacks, access, height, and landscaping requirements shall be applied. 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 Claimant 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) PAGE 2 OF 3- ORDER No. 2005-077 (09/07/05) 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. 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 day of September, 2005. BOARD OF COUNTY OF DESCHUKES COU DEWOLF, Chair ATTEST: Nl'~CH DALY, ommissioner Z Recording Secretary 15ENNIS R. LUKE, Co issioner PAGE 3 OF 3- ORDER No. 2005-077 (09/07/05) L C TO: Board of County Commissioners From: Michael A. Maier, County Administrator RE: Measure 37 Claim - Frank Rencher and the Frank L. Rencher Trust 5245 NE 5th Redmond Introduction DATE: September 7, 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 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 March 21, 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, described as tax lot 14-13-27-801, is about 38 acres. The current 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 Page 1 of 6 - Exhibit A - Order No. 2005-077 zoning is Exclusive Farm Use (EFU) with a farm use minimum lot size. The Claimants' desired use is to develop the property into a 15-lot subdivision with lots of 2.5 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 Owner - Frank L. Rencher, individually and as Trustee of the Frank L. Rencher Trust Claimants presented a deed dated June 22, 1964, and recorded at Vol. 139, p. 518 of the Deschutes County deed records which conveyed the property to Frank L. Rencher and his wife, Marilyn. Title to the property was conveyed to the Frank L. Rencher Trust by warranty deed on July 9, 1997. Owner Date of Acquisition - Frank L. Rencher, individually - June 22, 1964; Frank L. Rencher, as Trustee of the Frank L. Rencher Trust - July 9, 1997 The date of acquisition by the current owner is the relevant date for Board consideration of waivers under section (8) of Measure 37. Since the Frank L. Rencher Trust is revocable, even though in title, it qualifies as an Owner for Measure 37 purposes. Frank L. Rencher, as an individual also qualifies as an owner for Measure 37 purposes. 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 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 Claimant, Frank L. Rencher Trust acquired an interest is July 9, 1997, the date the Trust was created and title was transferred. Claimant Trust has Frank L. Rencher acquired an interest is June 22, 1964, and he has been an Owner for Measure 37 purposes continuously since that time. Page 2 of 6 - Exhibit A - Order No. 2005-077 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 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 reduction of property value. The Claimants have identified the EFU zoning as the only county land use regulations restricting the desired use of a 15-lot residential subdivision. This regulation is a County land use regulation, which is subject to Measure 37 claims. EFU zoning was first adopted by the County after the Frank L. Rencher as an individual, acquired ownership of the property, but before the Frank L. Rencher Trust acquired ownership of the property. At the time Frank L. Rencher acquired the property, the County's ordinances contained no minimum lot size for property and allowed dwellings as of right. This property was later classified as EFU and under restrictions adopted by the State in 1993 was required to have an 80-acre minimum lot size. As to the Frank L. Rencher Trust, the county regulation imposing an 80-acre minimum lot size would apply, but as to Frank L. Rencher, no minimum lot size would apply. 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 owner's 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 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. Page 3 of 6 - Exhibit A - Order No. 2005-077 Reduction in Value - $1,200,000 alleged on Claim Form The ordinance requires that 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 no evidence that domestic water is available. • Claimants have submitted no evidence that electricity is available. • Claimants have submitted no evidence that the property would qualify for septic permit approval as evidence that septic approval is feasible in the area. • Claimants have submitted no evidence that demonstrates access for 16 proposed lots. • Claimants have not submitted an appraisal of the reduction in value. Evidence of the reduction in value that calculates $2,400,000 in revenue does not include a calculation of the costs of development has been presented by way of an opinion from a realtor. Assuming Claimant Frank L. Rencher could obtain approval of a 15-unit subdivision of the property, absent current EFU zoning restrictions, the value of his 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 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." In this case, the present owners have continuously owned an interest in the property since 1964, as to Frank Rencher and since 1997 as to the Frank L. Rencher Trust. The latter follows the effective date of Title 18, the County zoning ordinance. Therefore, the full extent of the desired use by Frank Rencher, Trustee of the Frank L. Rencher Trust, may not be permitted by the regulations in effect in 1997. Page 4 of 6 - Exhibit A - Order No. 2005-077 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 owner 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 Frank L. Rencher, individually, as an 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 June 22, 1964, the date he acquired an interest in the property. There seems to have been no zoning of the subject property at the time. There is no 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. The non-exempt County land use regulations that were in effect at the time this Claimant 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 June 22, 1964, to allow the Frank Rencher to use the subject property in a manner permitted at the time he acquired the property. In essence, the County would not apply any land use regulations to Frank Rencher's property which were not in effect when he acquired the property unless they are exempt from a Measure 37 waiver under Subsection (3)E of the Measure. Frank L. Rencher, Trustee of the Frank L. Rencher Trust, and as an 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 9, 1997, the date he acquired an interest in the property. There seems to have been zoning of the subject property at the time. There is no 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. The non-exempt County land use regulations that were in effect at the time this Claimant 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 Page 5 of 6 - Exhibit A - Order No. 2005-077 July 9, 1997, to allow the Frank the 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 EXHIBIT B Parcel 2 as shown on the Deschutes County Partition Plat i~3994.09, M]? 93• i and LL 9?-140 combined on file in the Msckajcs County Cierl's Oiifice, said proptrry situated in the W1,2 5W 114 and the SW 14 s+IW 114 of Section 27. Township 1$ -1-outh6 Range [3 East, Willamette Meridian. Deschutes County, Cimpn_ Order No. 2005-077; Rencher