2005-1285-Order No. 2005-101 Recorded 11/10/2005COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS 2006618158
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DESCHUTES COUNTY CLERK
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VA IE
LEGAL COUNSEL
DESCHUTES COUNTY OFFICIAL
NANCY BLANKENSHIP, COUNTY
COMMISSIONERS' JOURNAL
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11/10/2005 03;22;29 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Huston and Carolyn
Walter to Use the Subject Property as Allowed
When they Acquired the Property
* ORDER NO. 2005-101
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, Huston and Carolyn Walter made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 63111 Johnson 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 June 9, 2005, Huston and Carolyn Walter filed a Measure 37 claim with the Community
Development Department.
2. Claimants' property at 63111 Johnson Road, Bend, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 63111 Johnson Road, Bend, Oregon, Tax Lots 17-11-23-200, and 300, that were not already
in effect until after June 30, 1970, 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 Huston and Carolyn Walter are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since June 30, 1970.
5. The Board concurs with the Administrator's report that the current regulation, RR-10 zoning,
the Wildlife Area Combining zoning, and the Landscape Management Combining zoning, if
PAGE 1 of 3- ORDER No. 2005-101 (11/9/05)
applied to the subject property, would not permit a subdivision on this subject property. The
current regulations are land use regulations which are 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 Claimants have 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 Claimants 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 Walter 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 June 30, 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 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. 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. 2005-101 (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 thin - day of November, 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESC14UTES COUNTY, OREGON
- -"tEt~ -
TOM DEWOLF, Chair n
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2005-101 (11/9/05)
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 - Huston and Carolyn Walter
63111 Johnson Road, Bend
17-11-23-200, 300
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 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 June 9, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and has submitted the County's official
Page 1 of 5 - Exhibit A - Order No. 2005-101
demand form. The property, shown on the attached map, is estimated to be 24 acres. The current zoning
is RR-10 with a 10-acre minimum lot size. The Claimants' desired use is to develop the property into a
subdivision with lots of 1-5 acres each. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim.
Current Owner - Huston and Carolyn Walter
Claimant presented a copy of a contract of sale, showing they purchased the property on June 30, 1970.
Owner Date of Acquisition - June 30, 1970
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 which
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.
Restrictive Regulation - RR-10 zoning.
Under the terms of the ordinance, the Claimants must identify County land use regulations that prevent
the Claimants from using the property in a way that they otherwise could have used the property at the
time the property was acquired. The Claimants must also show that these identified regulations cause a
reduction of property value.
The Claimants have identified the RR-10 zoning , the Wildlife Area Combining zone, and the Landscape
Management Combining zone as the land use regulations restricting the desired use of a subdivision.
These regulations are County land use regulations, which are 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. 2005-101
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 -
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 not submitted a water well report from the subject property as evidence that
domestic water is available.
• Claimants have not submitted a septic permit approval on the subject property as evidence that
septic approval is feasible in the area.
• Claimants have not submitted a map showing evidence of available road access for the desired
additional lots.
• Claimants have not submitted either an appraisal of the reduction in value or evidence of the
reduction in value that complies with DCC 14. 10.040(1) or opinion evidence which calculates a
reduced market value.
Assuming Claimants could obtain approval of a subdivision of the property, absent current RR-10 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 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,
Page 3 of 5 - Exhibit A - Order No. 2005-101
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 an interest in the property since 1970. This
predates the effective date of Title 18, the County zoning ordinance. The 1970 subdivision ordinance
(PL-2) which contains zoning regulations may or may 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 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 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 June
30, 1970, the date they 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 for available domestic water, and sanitary waste disposal. The non-
exempt County land use regulations that were in effect at the time Claimants 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
June 30, 1970, to allow the owners to use the subject property in a manner permitted at the time they
acquired an interest in the property. In essence, the County would not apply the current RR-10 zoning,
the Wildlife Area Combining zone, and the Landscape Management Combining zone, and other County
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 a subdivision under June 30, 1970
regulations.
Page 4 of 6 - Exhibit A - Order No. 2005-101
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. 2005-101
EXHIBIT B
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County, Oregon, - -
Order No. 2005-101; Walter