2005-1050-Order No. 2005-054 Recorded 9/12/2005FICIAL REV Ew D~ NANCYDESCHUBLANKENSHIPTES COUNTY CLERKS Q 2445+454
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LEGAL COUNSEL 2 -10 0
II V I I I III (III I I I IIIIII III
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Bertil and Ivis Nelson * ORDER NO. 2005-054
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, Bertil and Ivis Nelson have made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 63300 Hamehook Road and 21690 NE Butler Market Road, Bend,
Oregon due to regulations which took effect after they 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; 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 January 27, 2005, Bertil and Ivis Nelson ("Claimants") filed a Measure 37 claim with the
Community Development Department.
2. Claimants' property that is the subject of the claim is located at 63300 Hamehook Road and
21690 NE Butler Market Road, Bend, Oregon, within Deschutes County.
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 the Trustees of the Bertil and Ivis
Nelson Revocable Trust is the current owners of the subject property described in Exhibit "B,"
having acquired an interest and continually owned an interest since December 23, 1952.
PAGE 1 OF 3- ORDER No. 2005-054 (07/13/05)
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
Claimant's 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. The Board concurs with Administrator's report that claimants have demonstrated that domestic
water and road access for the desired use of additional residential lots on the subject property
are feasible. The current public health and safety regulations for sanitary waste disposal and
roads are applicable and may or may not reduce the number of lots in the subdivision. 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 this claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply current EFU 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 the Trustees acquired 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
non-exempt regulations in effect on December 23, 1952. The Public Health and Safety Regulations, including,
but not limited to sanitary waste disposal and road requirements are exempt from Measure 37. Current
requirements of these regulations shall be applied. The Community Development Director is hereby authorized
to determine the effects that any other exempt and non-exempt regulations would have on Claimant's proposed
development in the land division process.
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). This Order applies only to Bertil and Ivis
Nelson.
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.
PAGE 2 of 3- ORDER No. 2005-054 (07/13/05)
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 July, 2005.
BOARD OF COUNTY COM SIONERS
OF DESCHU S COUNTY, GON
TOM EWOLF, Chair
ATTEST:
(1~_
Recording Secretary
PAGE 3 of 3- ORDER No. 2005-054 (07/13/05)
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.orq
TO: Board of County Commissioners
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Bertil and Ivis Nelson
63300 Hamehook Road and 21690- NE Butler Market Road
DATE: July 6, 2005
Introduction
The County 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. Claimant 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 January 27, 2005 when
Measure 37 was in lawful effect. Gary Nelson paid the filing fee and submitted an official demand form on
behalf of Claimants Bertil and Ivis Nelson. The property, tax lot numbers 1712130000400/402, located at
Page 1 of 5 - EXHIBIT A - ORDER NO. 2005-054
63300 Hamehook Road and 21690 NE Butler Market Road, Bend, Oregon, and shown on the attached
map, is estimated to be 76 acres. Tax lot 400 contains approximately 38 acres; tax lot 402 contains
approximately 37 acres. The current zoning is EFU with an agricultural minimum lot size. The Claimants
desired use is a 52-lot subdivision. 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 Owner - Bertil and Ivis Nelson
Claimants presented a copy of a deed showing Bertil and Ivis Nelson as grantees, which is recorded at
Vol. 106, pp. 100 of the Deschutes County deed records and dated December 23, 1952. In 1991, Bertil
and Ivis Nelson conveyed the property by Bargain and Sale Deed to a revocable trust, naming
themselves as trustees. The revocable trust is Claimants form of ownership.
Owner Date of Acquisition - December 23, 1952
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
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.
Because the original purchasers of the subject property are the trustees of a revocable trust and,
therefore, still have control over the disposition of the property, the date of acquisition relates to the date
the trustees originally purchased the property and not the date the property was conveyed to the trust.
Restrictive Regulation - EFU
Under the terms of the ordinance, Claimants must identify County land use regulations that prevent
Claimants from using the property in a way that they otherwise could have used the property at the time
Page 2 of 5 - EXHIBIT A - ORDER NO. 2005-054
the property was acquired. Claimants 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. This zoning was first
effective on November 1, 1979 through enactment of PL-15. Under the terms of the current EFU zoning,
tax lot 400 is potentially eligible for a land division to create one new parcel for a non-farm dwelling; tax lot
402 is not eligible for any further division. (See: DCC 18.16.055(B)(2)).
Enforcement of County Regulation - DCC 14.10.040(G).
Measure 37 requires that an ordinance that restricts the current owner' use be "enforced" against it.
Claimants have not demonstrated that submitting an application for such a land division under current
zoning would be futile. However, this report confirms that an application for the desired subdivision 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 - $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 a well log to demonstrate that domestic well water is available.
• Claimants have submitted an appraisal of the reduction in value from Scott Buchless, State
Licensed Appraiser as evidence of a reduction in value of $19,500 per acre, or $1,482,000 for all
76 acres. This seems to be based on lot sales cost with no estimate of development and sales
costs.
• Assuming Claimants could obtain a subdivision of the property under prior zoning, but not under
current zoning, it is reasonable to conclude that the value of Claimant's property for Measure 37
purposes has been reduced.
• No evidence of sanitary waste system feasibility has been submitted.
Page 3 of 5 - EXHIBIT A - ORDER NO. 2005-054
Effect of County Waiver - remove zoning restriction EFU
Claimants have explained in their materials that a County waiver of application of the current EFU zoning
would allow Claimants to seek a subdivision of the subject property consistent with the lack of zoning in
effect on December 23, 1952, Claimant's date of acquisition of this property. A County waiver of the
current zoning does not waive the requirement that Claimant demonstrate compliance with applicable
regulations in a land division application. In that application process, the evidence about the property
acreage and qualification for a land division can be resolved consistent with the applicable 1952
regulations and current public health and safety regulations for sanitary waste disposal and for roads.
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 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. There is no evidence presented that these
regulations reduce market value under Measure 37.
Conclusion and Recommendation
The current owners of the subject property 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 December 23, 1952, the date Bertil and Ivis Nelson acquired the property. There is evidence in
the record that development of additional lots, their desired use, would be feasible based upon available
domestic water and road access. There is evidence in the record that there is some amount of reduction
of value because more lots could be created than under land use regulations adopted after the owners'
acquisition date. Claimants estimate this reduction in value at $1,426,000. This estimate does not seem
to take into consideration development or sales costs.
My recommendation is that the Board approve Claimants waiver of the EFU zoning in the form of the
Order attached. This Order would have the effect of waiving the current County land use regulations to
allow the Claimant to apply for use of the property in a manner permitted at the time Bertil and Ivis Nelson
acquired the property. In essence, the County would not apply the current EFU zoning to the Claimants
property, but would apply the regulations which were in effect when Bertil and Ivis Nelson acquired the
Page 4 of 5 - EXHIBIT A - ORDER NO. 2005-054
property. This waiver is not a development permit. Claimants must apply for land division using current
procedural requirements under land use regulations in effect on December 23, 1952.
Page 5 of 5 - EXHIBIT A - ORDER NO. 2005-054
EXHIBIT B
PARCELS 2 AND 3 OF PARTITION PLAT 1993-42.
Order No. 2005-054; Nelson