2006-146-Order No. 2006-038 Recorded 2/23/2006COUNTY OFFICIAL
REVIE NANCYUBLANKENSHIP, COUNTY CLERKDS CJ 2006'146
COrAISSIONERS' JOURNAL 02/23/2006 04;39;10 PM
4EGAL COUNSEL II II II111111111111111111 III
20-i
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Dick and Helyn Sellers * ORDER NO. 2006-038
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, Dick and Helyn Sellers made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 64061 N. Hwy 97, 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 September 26, 2005, Dick and Helyn Sellers filed a Measure 37 claim with the Community
Development Department.
2. Claimants' property at 64061 N. Hwy 97, Bend, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 64061 N. Hwy 97, Bend, Oregon that were not already in effect until after March 2, 1965 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 Dick and Helyn Sellers are the present
owners 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 March 2, 1965.
PAGE 1 of 3 - ORDER No. 2006-038 (02/22/06)
5. The Board concurs with the Administrator's report that the current regulation, MUA-10 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 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 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 Sellers' 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.
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 March 2, 1965. 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. 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
LAWS AND REGULATIONS MAY APPLY TO THE USE OF THE PROPERTY DESCRIBED HEREIN,
PAGE 2 OF 3 - ORDER No. 2006-038 (02/22/06)
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.
DATED this (mil/ day of February, 2006.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHU S COUNTY, OREGON
DENNIS R. LUKE, C AIR
4BE1A.RNO, VICE CHAIR
a Sew -
MICHAEL M. DALY, COMMISSIONER
PAGE 3 of 3 - ORDER No. 2006-038 (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 - Dick and Helyn Sellers (Claimants)
64041 N. Hwy 97, Bend, Oregon
Introduction
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 September 26, 2005 when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. The property is estimated to be 9.28 acres. The current zoning is MUA-10. The Claimants'
Page 1 of 5 - Exhibit A - Order No. 2006-038 (02/22/06)
desired use is to subdivide the property into for or five residential lots. The following is an analysis of the
evidence in the record on the elements of this Measure 37 claim
Current Owner- Dick and Helyn Sellers
Claimants presented a copy of a Warranty Deed to the property, dated March 2, 1965, showing that
Claimants acquired the property on that date. By deed dated July 22, 2004, Claimants conveyed their
interests in the property to a revocable trust with each of the Claimants as named trustees. Title to the
property remains with the trust, but is revocable by the trustees at any time.
Owner Date of Acquisition - March 2, 1965
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 - MUA-10 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 Claimants have identified the MUA-10 zoning and several related land use regulations as restricting
the desired use of a five-lot subdivision. These regulations are County land use regulations, which are
subject to Measure 37 claims. The applicability of additional development standards will be determined
consistent with the Board's Order when a specific land use application has been received. Non-exempt
Page 2 of 5 - Exhibit A - Order No. 2006-038 (02/22/06)
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 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 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 - $270,000 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.
• Claimants have submitted evidence that domestic water is available.
• Claimants have submitted no evidence that septic approval is feasible in the area, although the
existing residence is currently served.
• Claimants have not demonstrated how access would be provided to any new lots to be
established, although the property abuts Hwy 97, a State highway.
• Claimants have submitted an appraisal on which they base their opinion of the value of their
property if they were able to develop and sell additional residential lots. The value does not
account for the cost of development.
Assuming Claimants 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,
remove, or not to apply the land use regulation or land use regulations to allow
Page 3 of 5 - Exhibit A - Order No. 2006-038 (02122/06)
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 1965. 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 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
March 2, 1965, the date they 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 Claimants acquired the property would
be applied to a partition 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
March 2, 1965, 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 MUA-10 zoning
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 current regulations.
Page 4 of 5 - Exhibit A - Order No. 2006-038 (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. 2006-038 (02/22/06)
EXHIBIT B
That portion of the Sow Mfof the Morth Mfoft Southeast Quarter of the
Scout ast Quarter of Secion 4, Township 17 South, Range 12 Esst of the
Willamette Meridian and the South Half of the l+ m th Half of the Southwest
Quarter of the Southwest Qt r of Section 3, Township 17 South, Range 12
Bea of the Willamette, Maidi , all lying and being West of the right of way of
the Dalles-California Highway (U.S. ' as prowntly located in Deschutes,
City, Oregon.
Order No. 2006-038; Sellers