2005-1283-Order No. 2005-100 Recorded 11/10/2005DESCHUTES COUNTY CLERKDS 2006'~~~~6
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DESCHUTES COUNTY CLERK
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COUNTY OFFICIAL
YIEWE1 NANCYUBLANKE
NSHIP, COUNTY CLERKDS ~J ~OQJ•~161
COMMISSIONERS' JOURNAL
11/10/2005 03:22;29 PM
LEGAL CO SEL II !Ili 1
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Dan H. Heierman to Use * ORDER NO. 2005-100
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, Dan H. Heierman made a timely demand for compensation under Measure 37 for a
reduction in value to his property at 7600 SW Quarry Avenue, Redmond, 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 June 9, 2005, Dan H. Heierman filed a Measure 37 claim with the Community Development
Department.
2. Claimant's property at 7600 SW Quarry Avenue, Redmond, Oregon is within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 7600 SW Quarry Avenue, Redmond, Oregon that were not already in effect until after
February 9, 1970, 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 Dan H. Heierman is the present owner
of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since February 9, 1970.
5. The Board concurs with the Administrator's report that the current regulation, EFU-TRB
zoning, if applied to the subject property, would not permit a subdivision on this subject
PAGE 1 of 3- ORDER No. 2005-100 (11/9/05)
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 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 Heierman 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 February 9, 1970. 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. 2005-100 (11/9/05)
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 November, 2005.
ATTEST:
&Lv~-
Recording Secretary
PAGE 3 of 3- ORDER No. 2005-100 (11/9/05)
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TOM DEWOLF, Chair n
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 - Dan H. Heierman
7600 SW Quarry Avenue, Redmond
Introduction
DATE: November 9, 2005
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 June 9, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and has submitted the County's official
demand form. The property, shown on the attached map, is estimated to be 28.93 acres. The current
Page 1 of 5 - Exhibit A - Order No. 2005-100
zoning is EFU-TRB with an agricultural minimum lot size. The Claimant's desired use is to develop the
property into a 4-lot subdivision with three lots of 5 acres and one lot of 13 acres. The following is an
analysis of the evidence in the record on the elements of this Measure 37 claim
Current Owner - Dan H. Heierman
Claimant presented a copy of a deed showing he purchased the property on February 9, 1970. The deed
was recorded at Vol. 168, p. 851 of the Deschutes County deed records. A portion of this original
purchase was sold in 1983, leaving the 28.93 acre current ownership.
Owner Date of Acquisition - February 9, 1970
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 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.
Restrictive Regulation - EFU-TRB 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 the EFU-TRB zoning as the land use regulation restricting the desired use of
a 4-lot subdivision. This regulation is a County land use regulation, which is subject to Measure 37 claims.
The applicability of additional development standards listed in the Claim and the requested method of
providing access will be determined consistent with the Board's Order when a specific land use
Page 2 of 5 - Exhibit A - Order No. 2005-100
application has been received. Non-exempt land use 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 owner's 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 - $500,000 alleged in claim
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.
• Claimant has not submitted a water well report from the subject property as evidence that
domestic water is available.
• Claimant has not submitted a septic permit approval on the subject property as evidence that
septic approval is feasible in the area.
• Claimant has not submitted a map showing feasible public road access for the desired additional
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). The realtor opinion evidence which calculates a
reduced market value of greater than $500,000 based on 2-1/2 acre lots does not include
estimated costs of development or identify a source for the calculated value per acre.
Assuming Claimant could obtain approval of a subdivision of the property, absent current EFU-TRB
zoning restrictions, the value of Claimant's 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
Page 3 of 5 - Exhibit A - Order No. 2005-100
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 1970. This
predates the effective date of Title 18, the County zoning ordinance. However, the 1970 subdivision
ordinance (PL-2) contains zoning regulations which may or may not be applicable and may affect 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 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.
Conclusion and Recommendation
The present 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 land use regulations in effect on February 9,
1970, the date he acquired an interest in the property. There seems to have been 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 with repect to available domestic water, and sanitary waste disposal. 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
February 9, 1970, to allow the owner to use the subject property in a manner permitted at the time he
acquired an interest in the property. In essence, the County would not apply the current EFU-TRB zoning
and other regulations 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
Page 4 of 5 - Exhibit A - Order No. 2005-100
waiver is not a development permit. Claimant must apply for a subdivision under February 9, 1970
regulations.
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. 2005-100
EXHIBIT B
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Order No. 2005-100; Heierman