2006-145-Order No. 2006-008 Recorded 2/23/2006&VIEW NDESCH COUNTY
ANCYUBLANKENSHIP,F000NTY CLERKS COMMISSIONERS ' JOURNAL
LEGAL COUNSEL 0212312006 04:39:10 PM
(I I IIII (IIIIIIIIIIIIIIIII)
2 -i
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Thelma Lantz to Use the * ORDER NO. 2006-008
Subject Property as Allowed When She 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, Thelma Lantz made a timely demand for compensation under Measure 37 for a reduction
in value to her property at 1827 NE Smith Rock Way, Terrebonne, Oregon due to regulations which took effect
after she 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 August 24, 2005, Thelma Lantz filed a Measure 37 claim with the Community Development
Department.
2. Claimant's property at 1827 NE Smith Rock Way, Terrebonne, Oregon is within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 1827 NE Smith Rock Way, Bend, Oregon that were not already in effect until after January
24, 1969 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 Thelma Lantz is the present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
(either personally or through personally controlled revocable living trust) owned it since
January 24, 1969.
PAGE 1 OF 3 - ORDER No. 2006-008 (02/22/06)
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 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.
8. The Board concurs with the Administrator's report that Claimant has 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 an 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 Lantz's 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.
Claimant is hereby authorized to use the subject property as permitted at the time she acquired the property.
Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time she acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect on January 24, 1969. 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
obtains 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. ALTHOUGH THE COUNTY WILL ACCEPT AND PROCESS
SUBSEQUENT LAND USE APPLICATIONS ASSOCIATED WITH THE SUBJECT PROPERTY,
APPROVAL MAY NOT BE GRANTED WITHOUT A VALID WAIVER FROM THE STATE PERTAINING
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS SPECIFIED ABOVE. DESCHUTES
COUNTY LACKS THE AUTHORITY TO WAIVE ANY STATE REGULATIONS OR LAWS. STATE
PAGE 2 of 3 - ORDER No. 2006-008 (02/22/06)
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 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. d
DATED this day of February, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCH-WES COUNTY, OREGON
R. LUKE,
ATTEST:
Recording Secretary
BEV CLARNO, VICE CHAIR
MICHAEL M. DALY, COMMISSIONER
PAGE 3 of 3 - ORDER No. 2006-008 (02/22/06)
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: February 22, 2006
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Thelma Lantz (Claimant)
1827 NE Smith Rock Way, Terrebonne, Oregon
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 August 24, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official
demand form. The property is estimated to be 66 acres. The current zoning is EFU-TRB. The Claimant's
Page 1 of 5 - Exhibit A - Order No. 2006-008 (02/22/06)
desired use is to subdivide the property into eight lots. The following is an analysis of the evidence in the
record on the elements of this Measure 37 claim.
Current Owner - Thelma Lantz
Claimant presented a copy of a Deed to the property, dated January 3, 1911, showing that Claimant's
father acquired the property from the State of Oregon on that date. After Claimant's father and mother
passed away, Claimant and her two sisters (and their husbands) disposed of the property by a series of
deeds. Claimant received title to the subject property by deed, dated January 24, 1969. Claimant has
continuously owned the subject property since then.
Owner Date of Acquisition - January 24, 1969
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 the property could have been used 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 and several related land use regulations as restricting
the desired use of an eight-lot subdivision. This regulation is a County land use regulation, which is
subject to Measure 37 claims. The applicability of additional development standards will be determined
Page 2 of 5 - Exhibit A - Order No. 2006-008 (02/22/06)
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 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 - $1,500,000 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 evidence that domestic water is available.
• Claimant has not submitted evidence that septic approval is feasible in the area, although the
existing residence is currently served.
• Claimant has not demonstrated how access would be provided to any new lots to be established,
although the property abuts Smith Rock Way.
• Claimant has not submitted an appraisal or other evidence on which they base their opinion of the
value of their property if they were able to develop and sell additional residential lots.
Assuming Claimant could obtain approval of a subdivision of the property, absent current 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
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. 2006-008 (02122/06)
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 1969. This
precedes the effective date of PL-2, the 1970 subdivision ordinance, and PL-5, the County's first zoning
ordinance.
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 her use of the subject property based on non-exempt land use regulations in effect on January 24,
1969, the date she acquired an interest in the property. There was no zoning of the subject property at
the time. There is some 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 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
January 24, 1969, to allow the owner to use the subject property in a manner permitted at the time she
acquired an interest in the property. In essence, the County would not apply the current EFU-TRB zoning
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. Claimant must apply for a subdivision under current regulations.
Page 4 of 5 - Exhibit A - Order No. 2006-008 (02/22/06)
Cautionary Note on Measure 37
Claimants should understand that a decision by Deschutes County may not enable them to proceed with
future development or construction unless the State of Oregon has approved a Measure 37 Claim made
against applicable State land use regulations. 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. 2006-008 (02/22/06)
EXHIBIT B
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Order No. 2006-008; Lantz