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2005-1178-Order No. 2005-088 Recorded 10/12/2005DESCHUTES CLERKDS Q 2005-1178 IE NANCY COMMISSIONERS' JOURNAL 10/12/1005 04;49;50 PM W N LEGAL COUNSEL (I I I I II I I (III V III) I I I II II II III 2005-1178 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Mark Hilgart and Kristin * ORDER NO. 2005-088 Sorensen-Hilgart to Use the Subject Property as Allowed When they Acquired the Property 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, Mark Hilgart and Kristin Sorensen-Hilgart made a timely demand for compensation under Measure 37 for a reduction in value to her property at 67751 Peterson Burn Rd. Sisters, Oregon due to regulations which they asset 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 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 January 27, 2005, Mark Hilgart and Kristin Sorensen-Hilgart, husband and wife, filed a Measure 37 claim with the Community Development Department. 2. Claimant's property at 67751 Peterson Burn Rd., Sisters, Oregon is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property at 67751 Peterson Burn Rd., Sisters, Oregon that were not already in effect until after March 13, 2001, 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 Mark Hilgart and Kristin Sorensen- Hilgart are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since March 13, 2001. 5. The Board concurs with the Administrator's report that the current regulation, provisions of the Forest Use and Wildlife Area combining zoning, which were adopted after the property was acquired in 2001, if applied to the subject property, would not permit a subdivision on this PAGE 1 OF 3- ORDER N0.2005-088 (10/12/05) 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 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 Hilgart 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. Claimants are hereby authorized to use the subject property as permitted at the time they acquired the property. Claimants may apply for a use of the subject property consistent with the zoning and regulations in effect at the time they acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect on March 13, 2001. 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 Claimants 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. 2005-088 (10/12/05) 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 /day of October, 2005. ATTEST: &Uw~- . Recording Secretary BOARD OF COUNTY COMM SIONERS OF DESCHUTES COUNTY, q+REGON TOM DEWOLF, Chair - a&LAIT - MICHAEL DALY, Commissioner DENNIS R. LUKE, C-ommissioner PAGE 3 of 3- ORDER No. 2005-088 (10/12/05) 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 From: Michael A. Maier, County Administrator RE: Measure 37 Claim - Sorensen-Hilgart 67751 Peterson Burn Rd. Sisters, OR DATE: October 12, 2005 Introduction The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial submission, asking that the Claimants to 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 March 21, 2005 when Measure 37 was in lawful effect. Claimants, husband and wife, have not paid the filing fee but did submit Page 1 of 5 - Exhibit A - Order No. 2005-088 the County's official demand form. The property is about 40 acres. The current zoning is Forest Use 2, Wildlife Area. The Claimant's desired use is to develop the property into an 8-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. Current Owners - Mark Hilgart and Kristin Sorensen- Hilgart Claimants presented information relating to family member ownership, including a Memorandum of Land Sale Contract, dated the September 1, 1976 indicating the property was sold on July 30, 1976 by Jesse and Joy Edgington to Lucille Sorensen, mother of Claimant, Kristin Sorensen-Hilgart. A Deed indicating fulfillment of this contract was recorded on June 30, 1999. Lucille Sorensen conveyed title to the property to Mark Hilgart and Kristin Sorensen-Hilgart by deed on March 13, 2001, which would seem to be the date that Claimants first acquired ownership of the property. Owners Date of Acquisition - March 13, 2001 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 Claimants acquired an interest is March 13, 2001. Claimants have been owners continuously since that time. Claimants have asserted that Lucille Sorensen purchased the property on behalf of her daughter, Kristin Soren sen-Hilgart, in the thought that she would take ownership of the property in the future. Claimants have submitted no documentation indicating they acquired an interest in the property prior to the March 13, 2001 deed. Page 2 of 5 - Exhibit A - Order No. 2005-088 Restrictive Regulation - Forest Use. 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 Forest Use zoning as the land use regulation restricting the desired use of an 8-lot subdivision. 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 Claimant has applied for a land division of the property resulting in the current zoning being enforced on the subject property. Claimant has 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. Reduction in Value - $1,200,000.00 alleged on Claim Form The ordinance requires that the Claimant 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 no evidence that the property that septic approval is feasible in the area. • Claimants have submitted no evidence that demonstrates access for the proposed lots. Page 3 of 5 - Exhibit A - Order No. 2005-088 Assuming Claimants could obtain approval of a subdivision of the property, absent current Forest Use zoning restrictions, the value of Claimant's property for Measure 37 purposes would be substantially reduced. A letter submitted on behalf of certain neighbors of the claimants asserts that only regulations adopted after March 2001 would be subject to a Measure 37 claim and that the regulations asserted to be subject to this claim are intended to protect health and safety and are therefore exempt under Measure 37. It is unnecessary to address the second point, as this report concurs with the first point. 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 owners, 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 has continuously owned an interest in the property since March 2001. This follows the effective date of Title 18, the County zoning ordinance. The zoning in place at that time would not allow the full extent of the desired use. 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. Page 4 of 5 - Exhibit A - Order No. 2005-088 Conclusion and Recommendation The present owners of the property submitted a claim pursuant to Measure 37 that demonstrates eligibility for their use of the subject property based on non-exempt land use regulations in effect on March 13, 2001, the date they acquired an interest in the property. County's Forest Use (F-2) zone applied to 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 March 13, 2001 to allow the owners to use the subject property in a manner permitted at the time they became owners of the property. In essence, the County would not apply any land use regulations to the Claimants' property which were not in effect when the Claimants 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 March 13, 2001 would allow. Page 5 of 5 - Exhibit A - Order No. 2005-088 EXHIBIT B The Northwest Quarter of the Southwest Quarter (NW1/4SW1/4) of Section Twenty (20). Township Fifteen (13) South. Range Ten (10) East of the Willamette Meridian. Deschutes County. Oregon. Order No. 2005-088; Hilgart