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2005-1259-Order No. 2005-062 Recorded 11/3/2005DESCHUTES COUNTY CLERKDS 1446- 5154 NANCY NO FEE 00443672280600151500116114 0310612406 41;31;48 PM D-M37 Cntmi Stnm23 PAM This is s no fee document DESCHUTES COUNTY CLERK CERTIFICATE PAGE C iL C This page must be included if document is re-recorded. Do Not remove from original document. v A IEwE NANCY UBLANKENSHIP, COUNTY CLERKDS CJ 100 -1259 COMMISSIONERS' JOURNAL LEGAL CO SEL 11 ~~3~1005 04:11:13 PM ill[ III (111JI11 III IIII IIIIIIIII -BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize John V. and Marcella G. * ORDER NO. 2005-062 Johnson 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, John V. and Marcella G. Johnson have made a timely demand for compensation under Measure 37 for a reduction in value to their property at 3626 NW Coyner Avenue, Redmond, Oregon due to regulations which took effect after they acquired this property, consisting of two parcels, 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; On February 22, 2005, John V. and Marcella G. Johnson filed a Measure 37 claim with the Community Development Department. 2. Claimants' property at 3626 NW Coyner Avenue, Redmond, Oregon is within Deschutes County. 3. The County Administrator recommended that the zoning regulations for the subject property at, 3626 NW Coyner Avenue, Redmond, Oregon that were not already in effect until after July 7, 1967 for Parcel 1 and February 3, 1970 for Parcel 2, not be enforced in lieu of payment of just compensation to Claimants. 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 John V. and Marcella G. Johnson are the current owners of the subject property described in Exhibit "B," having acquired it and continuously owned it since July 7, 1967 for Parcel 1 and February 3, 1970 for Parcel 2. PAGE 1 of 3- ORDER No. 2005-062 (11/2/05) 5. The Board concurs with the Administrator's report that the current regulation, 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 regulation, EFU zoning, was not in effect at the time Claimants acquired the property The Board concurs with the Administrator's report that Claimants have not demonstrated that domestic water, septic, and road access for the desired use on the subject property is feasible. Despite the lack of a precise amount of reduction in value, the loss of the ability to add eight additional buildable lots from the subject property would be a substantial amount of reduction in fair market value if the regulations at the time Claimants acquired the property allowed that development. THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES 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 the Johnson 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 applicable state laws and County regulations in effect on July 7, 1967 for Parcel 1 and February 3, 1970 for Parcel 2. 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. 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) Section 4. 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 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. 2005-062 (11/2/05) 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 thi k ® day o~, 2005. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON - dts-&~ _ TOM DEWOLF, Chair n ATTEST: Recording Secretary R. LUKE, Commissioner PAGE 3 OF 3- ORDER No. 2005-062 (11/2/05) 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 - John V. and Marcella G. Johnson 3626 NW Covner Avenue. Redmond Introduction DATE: November 2, 2005 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 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 February 22, 2005 when Measure 37 was in lawful effect. Claimants paid the filing fee and the County's official demand form has Page 1 of 5 - Exhibit A - Order No. 2005-062 been submitted. The property, shown on the attached map, is about 79 acres in 2 parcels (see attached). The current zoning is Exclusive Farm Use, (EFU/TRB) with a farm use minimum lot size. The Claimants' desired use is a 30-lot subdivision and claimaints allege a reduction in value of $1,000,000 due to the inability to subdivide the property as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Claimants are represented in this matter by David and Tammy Sailors and by Bruce White, attorney. Current Owner - John V. and Marcella G. Johnson Claimants presented a copy of deed records showing that title was vested in John V. and Marcella G. Johnson as owners of Parcel 1, recorded July 7, 1967 at Vol. 154, p. 404 of the Deschutes County records. A warranty deed conveying title to Claimants to the property in Parcel 2 dated February 3, 1970 is recorded at Vol. 188, p. 714 of the Deschutes County records. Claimants have asserted that they have owned the subject property continuously since that time. Owner Dates of Acquisition - July 7, 1967 (Parcel 1), February 3, 1970 (Parcel 2) 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 of the current owners' acquiring an interest is the date of the recorded deed for each parcel Current owners, John and Marcella Johnson acquired Parcel 1 in 1967 and Parcel 2 in 1970 and they have been owners continuously since that time. Page 2 of 5 - Exhibit A - Order No. 2005-062 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 loss of property value. Claimants have identified the EFU zoning and related provisions of the Deschutes County Code and Comprehensive Plan as land use regulations restricting the desired use. These regulations are County land use regulations, which are subject to Measure 37 claims. 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 a subdivision 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 - $1,000,000 alleged on Claim Form The ordinance requires that the 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 septic approval is feasible in the area. • Claimants have not submitted a map that demonstrates access from a public road for 30 proposed lots. • Claimants have not submitted an appraisal of the reduction in value or evidence of the reduction in value that complies with DCC 14. 10.040(1). Page 3 of 5 - Exhibit A - Order No. 2005-062 Assuming Claimants could obtain approval of a subdivision of the property, but not under current EFU zoning restrictions, the value of Claimants' 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 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 have continuously owned Parcel 1 since 1967 and Parcel 2 since 1970. This predates the November 15, 1972 effective date of the 5-acre minimum lot size of PL-5, the County zoning ordinance and the effective date of PL-2, the October 1, 1970 subdivision ordinance which also contains a 5-acre minimum lot size for a rural subdivision (See Section 109.C.27.d). A waiver of current land use regulations would result in application of only the regulations in effect on the dates the present owners acquired each of the two parcels of property. 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 two parcels of 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. Claimants have requested that in lieu of compensation or a waiver or non enforcement of county regulations, that the County instead modify particular county land use regulations. Claimants assert that unless such regulations are modified, transfers of property which has been given Measure 37 relief is not possible and that therefore the intent of Measure 37 will be frustrated. The Oregon Attorney General has Page 4 of 5 - Exhibit A - Order No. 2005-062 indicated in a formal opinion that the text of Measure 37 supports the conclusion that Measure 37 relief is personal to a claimant and does not attach to property. Others have offered a contrary interpretation. The County has consistently taken the position (and indicated as such in its implementing ordinance), that whether a piece of property that has received Measure 37 relief is transferable depends upon the interpretation of the courts. 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 July 7, 1967 for Parcel 1 and February 3, 1970 for Parcel 2, the date they 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 road access. Any land use regulations that were in effect at the time the current owners acquired the property would be applied to a subdivision application for that use. State water rights, water law and sanitary waste disposal laws are exempt from Ballot Measure 37 under Subsection (3)(E) and would apply to development of this 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 nonexempt County land use regulations that were not in effect until after July 7, 1967 for Parcel 1 and February 3, 1970 for Parcel 2, to allow the owners to use the property in a manner permitted at the time the owners acquired the property. In essence, the County would not apply any land use regulations to the Claimants' property that were not in effect when the Claimants acquired the property. This waiver is not a development permit. Claimants must apply for development of any use that the regulations in effect on July 7, 1967 for Parcel 1 and February 3, 1970 for Parcel 2 and any applicable state water and sanitary waste disposal laws would allow. Page 5 of 5 - Exhibit A - Order No. 2005-062 EXHIBIT B LOT 100 The Northeast Quarter of the Northeast Quarter (NEl/4 NEl/4) of Section 31, Township 14 South, Range 13 East of the Willamette Meridian, Deschutes County, Oregon. Order No. 2005-062; Johnson EXHIBIT B LOT 700 The Southeast Quarter of the Northeast Quarter (SEI/4 NEI/4) of Section 31, Township 14 South, Range 13 East of the Willamette Meridian. Order No. 2005-062; Johnson