2006-203-Order No. 2006-041 Recorded 3/8/2006FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKDS CJ 20060203
jIE n COMMISSIONERS' JOURNAL 03/08/2006 04;34;35 PM
LEGAL .COUNSEL IIIIIIIII IIIIIIIIIIIIIIIIIIIIII
2006-203
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize David and Diane * ORDER NO. 2006-041
Hanson 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, David and Diane Hanson made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 65815 Old Bend Redmond Hwy, Bend, Oregon due to regulations which
took effect after they acquired the 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 October 7, 2005, David and Diane Hanson filed a Measure 37 claim with the Community
Development Department.
2. Claimants' property at 65815 Old Bend Redmond Hwy, Bend, Oregon is within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 65815 Old Bend Redmond Hwy., Bend, that were not already in effect until after December
21, 1978 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 David and Diane Hanson are the present
owners of the subject property described in Exhibit "B," having acquired an interest in such
property and continuously owned it since December 21, 1978.
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 of the subject
PAGE 1 OF 3- ORDER No. 2006-041 (03/08/06)
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.
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. It remains to
be seen upon submittal of a subdivision application for the property whether domestic water,
septic and access for the desired use are feasible. Despite the lack of a precise amount of
reduction in value, the loss of the ability to create additional buildable and saleablelots 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 David and Diane Hanson'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.
Claimants are hereby authorized and may apply for a permit to use the subject property as permitted at the time
they acquired the property, consistent with the zoning and an other county land use 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 December 21, 1978. 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. 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
PAGE 2 of 3- ORDER No. 2006-041 (03/08/06)
TO ANY 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, 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 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 ge- day of March, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUT~,S~UNTY, OREGON
a. "07R. LUKE,",,
ATTEST:
U1L'-
6mu'-L' 1110
Recording Secretary
VICE CHAIR
- 9A-&-a~t
MICHAEL M. DALY, COMMISSIONER
PAGE 3 of 3- ORDER No. 2006-041 (03/08/06)
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
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - David and Diane Hanson (Claimants)
65815 Old Bend Redmond Hwy, Bend, Oregon
DATE: March 8, 2006
Introduction
The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking that 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 October 7, 2005 when
Measure 37 was in lawful effect. Claimants have paid a single filing fee on two claims, which were
Page 1 of 5 - Exhibit A - Order Nos. 2006-041 (03/08/06)
submitted to the County on a single demand form. Because the disposition of each claim is different, they
will be treated separately. The subject property discussed in this report is estimated to be 80 acres. The
current zoning is EFU-TRB. The Claimant's desired use is to create three or four additional lots to enable
residential development. The following is an analysis of the evidence in the record on the elements of
this Measure 37 claim.
Current Owner - David and Diane Hanson
Claimants presented a copy of a Contract, dated December 21, 1978 indicating that Claimants acquired
an interest in the property on that date. Claimants have not furnished a deed showing that the purchase
contract was fulfilled, however County records have treated Claimants as the current owners. No other
evidence has been presented to show that Claimants have continuously owned the subject parcel.
Owner Date of Acquisition - December 21, 1978
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.
Page 2 of 5 - Exhibit A - Order Nos. 2006-041 (03/08/06)
The Claimants have identified the EFU-TRB zoning as restricting the Claimants' desired use of a the
property. 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 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 land division would be futile. In the EFU-TRB zone, a property of this size has the
potential for up to a three-lot partition. (See: DCC 18.16.055(B)(2)(b)) It is not possible to fully evaluate
that potential without the appropriate land use applications. However, this Report confirms that an
application for a 4-lot subdivision 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 - $800,000 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 no evidence that domestic water is available.
• Claimants have submitted no evidence that septic approval is feasible in the area.
• Claimants have submitted no evidence as to available road access for the desired additional lots.
Claimant has submitted no evidence on which they base their opinion as to the diminution in value based
upon application of County land use regulations on their properties. Assuming without deciding that
Claimant could obtain approval of a land division of the property, absent current zoning restrictions, and
sell such lots at market rates for residential development, the value of Claimants' property for Measure 37
purposes would be substantially reduced.
Page 3 of 5 - Exhibit A - Order Nos. 2006-041 (03/08106)
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.Nemphasis 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 1978. This
follows the effective date of PL-2, the 1970 subdivision ordinance, PL-7, the 1977 partition 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 their use of the subject property based on non-exempt land use regulations in effect on December 21,
1978, the date they acquired an interest in the subject property. There was zoning of the subject property
at the time. The non-exempt County land use regulations that were in effect at the time Claimants
acquired the property would be applied to a land division application.
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
December 21, 1978 to allow the owner to use the subject property in a manner permitted at the time they
acquired an interest in that property. In essence, the County would not apply the current EFU-TRB
zoning to the Claimants' property which were not in effect when the Claimants acquired the property
Page 4 of 5 - Exhibit A - Order Nos. 2006-041 (03/08/06)
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 or partition under current regulations.
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 also approves a Measure 37 claim
challenging 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 and the Department of Administrative Services.
Page 5 of 5 - Exhibit A - Order Nos. 2006-041 (03/08/06)
EXHIBIT B
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riialntesnance of said ditch, long Mr, n`irtetern frdq - of thµ Cr'ntral
Oregon Urigation Dist"t' et for the l'ilut nutt.~, ::anal,
Order No. 2006-041; Hanson