2005-1381-Order No. 2005-112 Recorded 12/5/2005DESCHUTES COUNTY OFFICIAL RECORDS CJ 100501381
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL
AG REV 1
4
AL COUNSEL
w~uiuuuW
2005-i1381
12/05/1005 01:41:18 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Dan and Helen
Rastovich Revocable Trust to Use the Subject
Property as Allowed When They Acquired the
Property
* ORDER NO. 2005-112
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 and Helen Rastovich Revocable Trust made a timely demand for compensation under
Measure 37 for a reduction in value to their property at 21925 Rastovich Road, Bend, Oregon due to regulations
which 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 July 15, 2005, The Dan and Helen Rastovich Revocable Trust filed a Measure 37 claim with
the Community Development Department.
2. Claimants' properties at 21925 Rastovich Road, Bend, Oregon are within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 21925 Rastovich Road, Bend, Oregon that were not already in effect until after May 27, 1957
for tax lots 100, 101, 200 and a portion of 1100 and April 26, 1977 for tax lot 301, 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 The Dan and Helen Rastovich
Revocable Trust is the present owner of the subject properties described in Exhibit "B," having
acquired an interest in it and continuously owned it since May 27, 1957 for tax lots 100, 101,
200 and a portion of 1100 and April 26, 1977 for tax lot 301.
PAGE 1 OF 3- ORDER No. 2005-112 (12/05/05)
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
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.
8. 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 Rastovich 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 properties 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.
Claimant Dan Rastovich 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 May 27, 1957 for tax lots 100, 101, 200 and a portion of 1100 and April 26,
1977 for tax lot 301. Claimant Helen Rastovich may apply for a use of the subject property consistent with the
zoning and regulations in effect at the time she acquired an interest in the property, September 25, 1996. 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 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
PAGE 2 of 3- ORDER No. 2005-112 (12/05/05)
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.
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 December, 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNW, OREGON
ATTEST: MICI~IAE DALY, Vi Chair
Recording Secretary D NNIS R. LUKE, ommissionei
PAGE 3 of 3- ORDER No. 2005-112 (12/05/05)
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 -
Dan and Helen Rastovich Revocable Trust (Claimants)
21925 Rastovich Road, Bend, Oreaon
Introduction
DATE: December 5, 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 July 15, 2005 when
Measure 37 was in lawful effect. Claimants have paid the filing fee and have submitted the County's
Page 1 of 6 - Exhibit A - Order No. 2005-112 (12/05/05)
official demand form. The properties, shown on the attached map, are estimated to be 200 acres. The
current zoning is EFU-TRB with an agricultural minimum lot size. The Claimants' desired use is to
develop the property into a 59-lot subdivision with lots of 3 acres. The following is an analysis of the
evidence in the record on the elements of this Measure 37 claim.
Current Owner - Dan and Helen Rastovich
Claimants presented a copy of a warranty deed, showing Dan Rastovich purchased the property shown
as tax lots 100, 101,Assessor's Map 8-12-12; tax lot 200, Map 18-13-07 and tax lot 1100, Map 18-13-06
on May 27, 1957. The warranty deed was recorded at Vol. 116, p. 285 of the Deschutes County deed
records. Tax lot 301, Map 18-13-07, was acquired by Dan Rastovich by contract dated April 26, 1977.
The Warranty Deed to that property was conveyed to Dan Rastovich on September 12, 1980, recorded at
Vol. 328, P. 428. All of these properties were transferred to Dan and Helen Rastovich Revocable Trust,
recorded at Vol. 1996, p. 4270858, official records of Deschutes County
Owner Date of Acquisition - May 27, 1957, April 26, 1977
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.
Dan Rastovich acquired an ownership interest in Tax lots 100, 101 (Map 18-12-12), tax lot 200 (Map 18-
13-07) and Tax lot 1100 (Map 18-13-06) in 1957. He further acquired an interest in Tax lot 301 (Map 18-
13-07) in 1977. Helen Rastovich first acquired an interest in such properties upon creation of the Dan and
Helen Rastovich Revocable Trust and the transfer of such properties to the Trust.
Page 2 of 6 - Exhibit A - Order No. 2005-112 (12/05/05)
Restrictive Regulation - EFU-TRB 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 haves identified the EFU-TRB zoning as the land use regulation restricting the desired use
of a 59-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 will be determined
consistent with the Board's Order when a specific land use 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 evidence that Claimants have applied for a land division of the property resulting in the current
zoning being enforced on the subject property (See: County file nos. MP-02-40 and FPA-03-24).
Claimants have not demonstrated that submitting an application for the desired 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 - $6.372 million alleged in claim
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 not submitted evidence that domestic water is available.
• Claimants have not submitted evidence that septic approval is feasible in the area.
• Claimants have not submitted a map showing access from Rastovich Road as evidence of
available road access for the desired additional lots.
Page 3 of 6 - Exhibit A - Order No. 2005-112 (12/05/05)
• 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). The realtor opinion calculates a reduced market
value of $6.372 million, which includes estimated costs of development.
Assuming Claimants could obtain approval of a subdivision of the property, absent current EFU-TRB
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,
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 Dan Rastovich has continuously owned an interest in tax lots 100, 101, 200 and 1100
since 1957. He has continuously owned an interest in tax lot 301 since 1977. Helen Rastovich's interest
in the properties date from 1996. Acquisition of tax lot 301 by Dan Rastovich follows the effective date of
the 1970 subdivision ordinance and PL-5 which contains zoning regulations which may not allow the full
extent of the desired use.
Claimants who receive 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 properties based on non-exempt land use regulations in effect on
May 27, 1957 for Tax lots 100, 101, 200, 1100 and April 26, 1977 for Tax lot 301, the dates Dan
Page 4 of 6 - Exhibit A - Order No. 2005-112 (12/05/05)
Rastovich acquired an interest in the properties. Helen Rastovich's interest in the properties dates from
1996. There was zoning on tax lot 301 at the time it was acquired. 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, as to Dan Rastovich, the non-exempt County land use regulations that were
not in effect until after 1957 and 1977 respectively, to allow him to use the subject properties 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 to Dan Rastovich's property which were in effect when he acquired the property
unless such regulations are exempt from a Measure 37 waiver under Subsection (3)E of the Measure.
The Order would also specify that Helen Rastovich's Measure 37 right to obtain a waiver of non-exempt
County land use regulations date from when she first acquired an ownership interest in the property,
which was 1996. This waiver is not a development permit. Claimant, Dan Rastovich, must apply for a
subdivision under May 27, 1957 zoning regulations and April 26, 1977 zoning regulations for Tax lot 301.
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
Page 5 of 6 - Exhibit A - Order No. 2005-112 (12/05/05)
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 6 of 6 - Exhibit A - Order No. 2005-112 (12/05/05)
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EXHIBIT B
This legal description describes only a portion of tax lot 1100. It does describe tax
lots 100 and 101 of 18-12-12. The deed also describes all of tax lot 200 in 18-13-07.
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This legal description describes tax lot 301, of 18-13-7.
,I,.- 'tar hwen: vne goa^tcr o; the Nily: e°` ann qu: wt,2 o Sec iacz i. Ic+msb: p
han'Fe 13 East t?._ '«i11em~ to " ri:lic t. Grnc~:ut t Vo Sri y, ire~~n.
(5) ae:a& of knuatd *r- S~;ye x
Order No. 2005-112; Rastovich