2005-1204-Order No. 2005-093 Recorded 10/25/2005DESCHUTES COUNTY OFFICIAL RECORDS ~005~~~04
NANCY BLANKENSHIP, COUNTY CLERK 4J J J
REVI _ D COMMISSIONERS' JOURNAL 10/25/2005 12:30:47 PM
LEGAL OUNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
2005-1204
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Anthony Amadio to Use * ORDER NO. 2005-093
the Subject Property as Allowed When he
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, Anthony Amadio made a timely demand for compensation under Measure 37 for a
reduction in value to his property at 19075 Couch Market Road, Bend, 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 April 20, 2005, Anthony Amadio filed a Measure 37 claim with the Community
Development Department.
2. Claimant's property at 19075 Couch Market Road, Bend, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
atl9075 Couch Market Road, Bend, Oregon that were not already in effect untilafter August 25,
1989, 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 Anthony Amadio is the present owner
of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since August 25, 1989.
The Board concurs with the Administrator's report that the current regulation, EFU zoning, if
applied to the subject property, would not permit a farm-related dwelling on this subject
PACE 1 of 3- ORDER No. 2005-093 (10/24/05)
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 farm-related
dwelling 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 Claimant's 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 demonstrated that
domestic water 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 build a farm-related dwelling on
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 Amadio 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 shall be permitted if the subject property fully complies with all
regulations in effect on August 25, 1989. 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. AS A RESULT OF A
DECISION BY THE MARION COUNTY CIRCUIT COURT, THE STATE MAY BE UNABLE TO
PROCESS CLAIMS MADE UNDER MEASURE 37 CHALLENGING STATE LAND USE REGULATIONS.
PAGE 2 of 3- ORDER No. 2005-093 (10/24/05)
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.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TOM DEWOLF, Chair
ATTEST: MfC`IAEVM ~ DALY,
Recording Secretary DENNIS R. LUKE, C2
PAGE 3 of 3- ORDER No. 2005-093 (10/24/05)
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: October 24, 2005
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Anthony Amadio
19075 Couch Market Rd., Bend, OR
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 20, 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 39.7 acres. The current zoning is Exclusive Farm Use, Tumalo
Page 1 of 5 - Exhibit A - Order No. 2005-093
Redmond Bend subzone (EFU-TRB), Rural Residential (RR10) and Landscape Management Combining
zone. The Claimant's desired use is to develop the property with a residential dwelling. 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 Dan Van Vactor.
Current Owner - Anthony Amadio
Claimant presented a copy of a deed showing that he acquired the property on August 25, 1989.
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 italicized 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 he acquired the property in 1989 and continued to own the property
thereafter.
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 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.
Page 2 of 5 - Exhibit A - Order No. 2005-093
The Claimant has identified County zoning regulations which were subject to clarification and amendment
by State regulations for non-farm dwellings in EFU zones, adopted in 1994 (See: Ord. No. 94-026), and
which had the effect of restricting the Claimant's desired use of the property for a single family residence.
Likewise the gross income test for farm dwellings on high value farm land were adopted by Deschutes
County in 1995 (See: Ord. No. 95-007), which occurred after Claimant acquired the property.
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, such as fire and building codes and others which are 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 him.
Although the Claimant applied for a nonfarm dwelling on the property, he withdrew the application upon
learning of the recommendation made by the Community Development staff (CU-04-78). Since this
application was not decided, Claimant has not demonstrated that an application for the desired non-farm
dwelling use would be futile. However, since a farm-related dwelling is subject to clear and objective
income standards, and since the Claimant apparently asserts that he is unable to meet these income
standards, this Report confirms that an application for the desired farm-related dwelling would be denied.
Therefore, the intent of DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $320,000 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.
• Claimant has asserted that domestic water is available by means of private well.
• Claimant has submitted no evidence that the property would qualify for septic permit approval as
evidence that septic approval is feasible in the area.
Assuming Claimant could obtain approval of a building permit on the property, absent County zoning
restrictions adopted after he acquired his interest in the property, the value of the property for Measure 37
purposes would be substantially reduced.
Page 3 of 5 - Exhibit A - Order No. 2005-093
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 owner has continuously owned an interest in the property since 1989.
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
Anthony Amadio, as 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 county land use regulations in effect in
1989, the date he acquired an interest in the property. While there was zoning of the subject property at
the time, only after such date was the income test for a farm-related dwelling applied to the property. 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 1989,
to allow the Claimant to use the subject property in a manner permitted at that time. In essence, the
County would not apply any land use regulations to Anthony Amadio'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.
Page 4 of 5 - Exhibit A - Order No. 2005-093
Cautionary Note on Measure 37
On October 14, 2005, Marion County Circuit Court announced its decision in MacPherson v. Dept. of
Administrative Services, (Marion Co. Circ. Ct. Case No. 0OC15769), which involved a challenge to
Measure 37. The Court ruled that Measure 37 violates the constitution in the following particulars:
impermissibly limits the Legislative Branch of Oregon government from exercising its plenary power to
regulate land use in Oregon; violates the Oregon Constitution, Article I, Section 20, the Privileges and
Immunities clause; violates the Oregon Constitution, Article I, Section 22, the Suspension of Laws; and
violates the United States Constitution, Fourteenth Amendment Procedural and Substantive Due
Process. This decision is expected to be appealed to the Oregon Supreme Court. However, until ruled on
by the Supreme Court (and unless a stay is granted), this decision will prevent the State of Oregon from
processing or deciding Measure 37 claims and from administering State laws as if Measure 37 were valid.
Deschutes County will, for the time being, process Measure 37 claims unless a claimant requests that
such process be placed on hold. Claimants should understand that a decision by Deschutes County may
not enable them to proceed with future development or construction in light of the fact that the State may
be prevented from processing "State" claims. Claimants who wish to obtain information relative to their
"State" claims under Measure 37 are advised to contact the State Department of Land Conservation and
Development.
Page 5 of 5 - Exhibit A - Order No. 2005-093
to the Claimant's property which were not in effect when the Claimant 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.
Cautionary Note on Measure 37
On October 14, 2005, Marion County Circuit Court announced its decision in MacPherson v. Dept. of
Administrative Services, (Marion Co. Circ. Ct. Case No. 0OC15769), which involved a challenge to
Measure 37. The Court ruled that Measure 37 violates the constitution in the following particulars:
impermissibly limits the Legislative Branch of Oregon government from exercising its plenary power to
regulate land use in Oregon; violates the Oregon Constitution, Article I, Section 20, the Privileges and
Immunities clause; violates the Oregon Constitution, Article I, Section 22, the Suspension of Laws; and
violates the United States Constitution, Fourteenth Amendment Procedural and Substantive Due
Process. This decision is expected to be appealed to the Oregon Supreme Court. However, until ruled on
by the Supreme Court (and unless a stay is granted), this decision will prevent the State of Oregon from
processing or deciding Measure 37 claims and from administering State laws as if Measure 37 were valid.
Deschutes County will, for the time being, process Measure 37 claims unless a claimant requests that
such process be placed on hold. Claimants should understand that a decision by Deschutes County may
not enable them to proceed with future development or construction in light of the fact that the State may
be prevented from processing "State" claims. Claimants who wish to obtain information relative to their
"State" claims under Measure 37 are advised to contact the State Department of Land Conservation and
Development.
Page 5 of 5 - Exhibit A - Order No. 2005-091
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Order No. 2005-093; Amadio