2005-1091-Order No. 2005-092 Recorded 9/29/2005REVIEW
LEGAL COUNSEL
COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS Yv1 ZVYJ'~09+
COMMISSIONERS' JOURNAL ,
V41014005 04,36,14 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Laurel Griffiths to Use
the Subject Property as Allowed When She
Acquired the Property
* ORDER NO. 2005-092
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, Laurel Griffiths made a timely demand for compensation under Measure 37 for a reduction
in value to her property at 717 NW Helmholtz Way, Redmond, Oregon due to regulations which took effect
after she 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 April 13, 2005, Laurel Griffiths filed a Measure 37 claim with the Community Development
Department.
2. Claimant's property at 717 NW Helmholtz Way, Redmond, Oregon is within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 717 NW Helmholtz Way, Redmond, Oregon that were not already in effect until after June
19, 1985, 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 Laurel Griffiths is the present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since June 19, 1985.
PAGE 1 of 3- ORDER No. 2005-092 (09/28/05)
5. The Board concurs with the Administrator's report that current county land use regulations, if
applied to the subject property, would not permit a subdivision on this subject property. The
current 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.
8. The Board concurs with the Administrator's report that Claimant has 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 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 Griffiths 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 she acquired the property.
Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time she acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect on June 19, 1985. 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 Claimant's 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)
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.
PAGE 2 of 3- ORDER No. 2005-092 (09/28/05)
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 f/ day of September, 2005.
BOARD OF COUNTY COMMIS
OF DESCHUTFiS COUNTY. OR]
, Chair
ATTEST:
zw&~~ &Je-t~-
Recording Secretary
issioner
R.R. LoE C, of C mmissioner
PAGE 3 OF 3- ORDER No. 2005-092 (09/28/05)
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 DATE: September 28, 2005
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Laurel H. Griffiths
717 NW Helmholtz Way, Redmond
Introduction
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 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. 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, Claimant 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 April 13, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and the County's official demand form
has been submitted. The property is about 115 acres. The current zoning is Exclusive Farm Use , Tumalo
Page 1 of 5 - Exhibit A - Order No. 2005-092
Redmond Bend subzone (EFU-TRB) with a farm use minimum lot size. The Claimants' desired use is to
develop the property into a 58-lot subdivision with lots of 2 acres each. 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 Bedsaul Consulting, Inc.
Current Owner - Laurel H. Griffiths
Claimant presented two deeds relating to family member ownership from 1949. The property was first
acquired in 1949. A quitclaim deed shows James Griffiths as the grantee. The 1949 deed contains a
description which is illegible and includes no recording stamp. A copy of a marriage license has been
furnished showing that in 1948 James Griffiths married Laurel H. Brown, the present Laurel Griffiths. A
second deed shows that in 1985 James Griffiths conveyed the property to himself and his wife, the
present claimant. The 1985 deed contains a description, which in pertinent part reads: "The SE1/4 NW1/4
and the N1/2 SW1/4; except that portion lying within the right of way of Whitted Road." This latter
description corresponds with the Tax lot number furnished by Claimant as the subject property.
Claimant asserts an ownership interest in the property from 1949 based in part upon her marriage
to James Griffiths, despite the fact that the original deed only listed James Griffiths, who later transfered
title to himself and his wife jointly in 1985. On September 26, 2005 Claimant's attorney faxed to County a
letter and copies of several documents indicating the intent of the Claimant and her late husband with
respect to the property. These documents include a mortgage given by them to the Federal Land Bank in
Spokane, dated December 20, 1949 and recorded at Volume 69, page 391, Deschutes County records; a
loan made by the Federal Land Bank of Spokane to both Claimant and her husband in 1950; and a
second mortgage given by Claimant and her husband to the Federal Land Bank of Spokane in November
1971. Each mortgage refers to the property as the SE1/4 NW1/4 and the N1/2 SW1/4 of Section Seven,
Township fifteen Southy, Range Thirteen East of the Willamette Meridian. Claimant asserts that the
reason her name was not contained on the 1949 deed was due to an oversight, that the execution of the
note and mortgages supports the conclusion that the parties intended to share ownership of the property.
There is no evidence that Claimant was not intended to share ownership with her husband.
Page 2 of 5 - Exhibit A - Order No. 2005-092
Owners Date of Acquisition
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 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.
Measure 37 defines "Owner' as the present owner of the property, or any interest therein. (Emphasis
added). The italicised phrase indicates an intent that ownership be interpreted broadly, and not based
strictly on whether a claimant holds legal title. In this instance the evidence furnished by Claimant
supports the conclusion that she and her husband intended to share the property, as they apparently did
from 1949 until her husband passed away, and she continued to the own the property thereafter.
The first date Claimant, Laurel Griffiths acquired an interest is 1949, the date that the property was
acquired by the Griffiths. Laurel Griffiths has been an Owner for Measure 37 purposes continuously since
that time.
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 Claimant has identified County zoning regulations adopted in 1971 and thereafter as restricting the
Claimant's desired use of a 58-lot residential subdivision.
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
Page 3 of 5 - Exhibit A - Order No. 2005-092
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 her.
Although the Claimant applied for a land division of the property resulting in the current zoning being
enforced on the subject property (See: MP-02-34), that partition has not been completed. Claimant has
not demonstrated that submitting an application for the desired subdivision 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 - $3,772,190 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.
• Claimant has submitted no evidence that domestic water is available.
• Claimant has submitted no evidence that electricity is available.
• Claimant has submitted no evidence that the property would qualify for septic permit approval as
evidence that septic approval is feasible in the area.
• Claimant has submitted no evidence that demonstrates access for 58 proposed lots.
• Claimant has not submitted an appraisal of the reduction in value or evidence of the reduction in
value that complies with DCC 14.10.040(1). Furthermore, the analysis that is provided is premised
on development of 58 2-acre lots.
Assuming Claimant Laurel Griffiths could obtain approval of a subdivision of the property, absent County
zoning restrictions adopted after she acquired her interest in the property, the value of her 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,
Page 4 of 5 - Exhibit A - Order No. 2005-092
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)
I I (c) "Owner" is the present owner of the property, or any interest therein."
In this case, the present owner has continuously owned an interest in the property since 1949.
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 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
Laurel Griffiths, as an owner of the property, submitted a claim pursuant to Measure 37 that demonstrates
eligibility for her use of the subject property based on non-exempt county land use regulations in effect on
1949 the date she acquired an interest in the property. There was 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 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
1949, to allow Laurel Griffiths to use the subject property in a manner permitted at that time. In essence,
the County would not apply any land use regulations to Laurel Griffith's property which were not in effect
when she 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. Claimant must apply for development of any use that the
regulations in effect on her acquisition date would allow.
Page 5 of 5 - Exhibit A - Order No. 2005-092
EXHIBIT B
xn Township 15 South, Range 13 Past of the Willamette
Meridian, Deschutes County, oregon.
section 7s The SE1/4 NW1/4 and the N1/2 SWj/q; EXCEPT
that portion lying within the right of way of Whitted
Road.
Order No. 2005-092; Griffiths