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2006-204-Order No. 2006-042 Recorded 3/8/2006EA L CO SEL FICIAL NANCYUBLANKENSHIPTES COUNTY CLERKDS Q 2OV6'201 VIE DESCH COMMISSIONERS' JOURNAL , 2006-204 0310812406 04,34,35 PM BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Knorr Rock & Land Co. * ORDER NO. 2006-042 to Use the Subject Property as Allowed When It 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, Knorr Rock & Land Co. made a timely demand for compensation under Measure 37 for a reduction in value to its property at Section 33 T14S R13E, WM, Lot 601 (near Pershall Way Rd.), Redmond, Oregon due to regulations which took effect after it 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 October 11, 2005, Knorr Rock & Land Co. filed a Measure 37 claim with the Community Development Department. Claimant's property at Section 33 T14S R13E, WM, Lot 601 (near Pershall Way Rd.), Redmond, Oregon is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property at Section 33 T14S R13E, WM, Lot 601 (near Pershall Way Rd.), Redmond, Oregon that were not already in effect until after August 12, 1974 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 Knorr Rock & Land Co. is the present owner of the subject property described in Exhibit "B," having acquired an interest in such property and continuously owned it since August 12, 1974. PAGE 1 of 3- ORDER No. 2006-042 (03/08/06) 5. The Board concurs with the Administrator's report that the current regulation, SMIA and RR-10 zoning, if applied to the subject property, would not permit a subdivision of the 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 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. The Board concurs with the Administrator's report that Claimant has not demonstrated that domestic water, and septic for the desired use on the subject property are feasible. It remains to be demonstrated 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 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 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 Knorr Rock & Land Co.'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 and may apply for a permit to use the subject property as permitted at the time it acquired the property, consistent with the zoning and an other county land use regulations in effect at the time it acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect on August 12, 1974. 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 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, PAGE 2 of 3- ORDER No. 2006-042 (03/08/06) 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, 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 e day of March, 2006. BOARD OF COUNTY COMMISSIONERS OF DESCHUTE5 COUNTY, OREGON R. LUKE, CHAIR ATTEST: c ' Ili Recording Secretary BEV CL'ARNO, VICE CHAIR MICHAEL M. DALY, COMMISSIONER PAGE 3 of 3- ORDER No. 2006-042 (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 - Knorr Rock & Land Co. (Claimant) Section 33 TI 4S R1 3E, WM, Lot 601 (near Pershall Way Rd.), Redmond, Oreqon Introduction DATE: March 8, 2006 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 11 2005 when Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official Page 1 of 5 - Exhibit A - Order No. 2006-042 (03/08/06) demand form. The property is estimated to be 50 acres. The current zoning is SMIA, RR-10. The Claimant's desired use is to subdivide the property. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Knorr Rock & Land Co. Claimant presented a copy of Warranty Deed to the property, dated August 12, 1974, showing that Claimant acquired the property on that date. Owner Date of Acquisition - August 12, 1974 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 - SMIA, RR-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 Claimant has identified the SMIA and RR-10 zoning as restricting the desired use of a 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 Page 2 of 5 - Exhibit A - Order No. 2006-042 (03/08/06) 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 - $2,000,000 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 submitted no evidence that domestic water is available. • Claimant has submitted no evidence that septic approval is feasible in the area. • Claimant has submitted nothing which indicates available road access for the desired additional lots. • Claimant has submitted no evidence indicating the basis for the alleged reduction in the value of the property based upon the application of certain County land use regulations. Assuming Claimant could obtain approval of a subdivision of the property, absent current SMIA and RR- 10 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. 2006-042 (03/08/06) 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 1974. This follows 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 its use of the subject property based on non-exempt land use regulations in effect on August 12. 1974, the date it acquired an interest in the property. There was 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. It remains to be demonstrated upon submittal of a subdivision application for the subject property whether domestic water, septic and access for the desired use are feasible. 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 August 12, 1974, to allow the owner to use the subject property in a manner permitted at the time it acquired an interest in the property. In essence, the County would not apply the current SMIA and RR-10 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. 2006-042 (03/08/06) Cautionary Note on Measure 37 Claimant should understand that a decision by Deschutes County may not enable them to proceed with future development or construction unless the State of Oregon approves a waiver of 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 No. 2006-042 (03/08/06) EXHIBIT B The Northeast k of the Northwest 4 a. d the Northwest 4 of the SOutheast 4 of the Northwest % of Sect ell 33, Township 14 South, Range 1 East, V. M. Deschutes County, Crregou. TOGETHER with an easement 60 feet in width along the east line of the NE 4,SL4, M , Section 33, T. 145., R. 13 E. W.M. for ingress and egress. RESi;RVI~ ' G unto Grantor, his heirs, assigns and successors in interest an easement 60 feet iii width along the east line of tie HE'S, Ni of Section 33, T 14 S., R 13 :E, for roadway purposes to and for the ?vE.1-, SE1141 of Section 33, T 4 S., R13 E, W*. L Order No. 2006-042; Knorr Rock & Land Co.