2006-388-Order No. 2006-044 Recorded 4/7/2006COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKS OJ ?006.388
COMMISSIONERS' JOURNAL 0410712006 0Z;Z9;14 PM
IIIIIIIII I~IIIIIIIIIIIIIII II III
2006-388
DESCHUTES COUNTY CLERK
CERTIFICATE PAGE
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if document is re-recorded.
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IE
DESCHUTES COUNTY OFFICIAL
RECORDS
NANCY BLANKENSHIP, COUNTY
CLERK
2006-23726
LEGALCOUNSEL
111111111111111111111111111111111111111
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NO FEE
00452749200600237260090092
04/06/2006
04;04;31 PM
D-M37 Cnlsl Stns25 BECKEY
This is a no fee document,
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Carl W. Hopp, Jr. to Use * ORDER NO. 2006-044
the Subject Property as Allowed When He
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, Carl W. Hopp, Jr. submitted a timely demand for compensation under Measure 37 for a
reduction in value to his property near Saddleback Drive, Bend, Oregon due to regulations which took effect
after he acquired these properties, 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 20 2005, Carl W. Hopp, Jr. filed a Measure 37 claim with the Community
Development Department.
2. The properties are located near Saddleback Drive, Bend, Oregon and are within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject
properties that were not already in effect until after October 24, 1979 as to Claim 1 and June 1,
1970 as to Claim 2 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 Carl W. Hopp, Jr. is the present owner
of the subject properties described in Exhibit "B," having acquired an interest in them and
continuously owned them since October 24 , 1979 as to Claim 1 and June 1, 1970 as to
Claim 2.
PAGE 1 of 3- ORDER No. 2006-044 (04/05/06)
The Board concurs with the Administrator's report that the current regulations, Forest and
Wildlife Combining zoning, if applied to the subject properties, would not permit a subdivision
on these subject properties. 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 properties 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 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 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 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 he acquired the properties.
Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time he acquired the properties. That use shall be permitted if the subject property fully complies with all
regulations in effect on October 24, 1979 as to Claim 1 and June 1, 1970 as to Claim 2. The Community
Development Director is hereby authorized to determine the effects that any other non-exempt regulations in
effect on these dates 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)
PAGE 2 of 3- ORDER No. 2006-044 (03/29/06)
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,
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 21,1 day of April, 2006.
ATTEST:
(Nv&6u q4)U1tt-'-
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHU COUNTY, OREGON
JMk~IS R. LUKE, IR
BEV CLARNO, VICE CHAIR
MICHAEL M. DALY, COMMISSIONER
PAGE 3 of 3- ORDER No. 2006-044 (03/29/06)
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6570 Fax (541) 385-3202 - vwwv.deschutes.org
TO: Board of County Commissioners DATE: April 5, 2006
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Carl W. Hopp, Jr. (Claimant)
(1) T 17S, R11 E, S00 Lots 02713 and 02715, Bend, Oregon
(2) T 17S, R11 E, S 14 Lot 301, Bend Oregon
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 20, 2005 when
Measure 37 was in lawful effect. Claimant has paid a single filing fee on three distinct claims, the first two
Page 1 of 5 - Exhibit A - Order No. 2006-044 (04/05/06)
combined in this report into one, and submitted the County's official demand form. The property under
Claim 1 (17-11; tax lots 2713 and 2715) is approximately 80 acres (40 acres for each parcel) and for
Claim 2 (17-11-14; tax lot 301), also 40 acres. The current zoning is Forest Use (F2), Wildlife Area
Combining Zone (WA). The Claimant's desired use is unstated, but presumably a use that would have
been allowed under zoning regulations in effect when the parcels were acquired. For purposes of this
report we will assume the Claimant would desire to subdivide the property for residential development.
The following is an analysis of the evidence in the record on the elements of this Measure 37 claim.
Current Owner - Carl W. Hopp, Jr.
Claim 1. Claimant presented a copy of a several documents relating to the acquisition of two adjoining
40-acre parcels in a single transaction. These two parcels have been combined in this report, since the
facts relating to each parcel are identical. Claimant presented copies of an Earnest Money Agreement,
Trust Deed, Promissory Note and Closing statement, all dated October 24, 1979, which indicate that as of
that date, Claimant had acquired an interest in the property. This despite the fact that nothing concerning
this transaction was recorded with the County deed records until December 11, 1979.
Claim 2. Claimant presented a copy of a deed, dated June 1, 1970 indicating that Claimant acquired an
interest in the property which is the subject of Claim 2 on that date. Claimant presented copies of a
memorandum of contract, quitclaim deed and bargain and sale deed, together with an explanation that in
1980 Claimant entered into an agreement to sell the property, but that eventually the purchasers
defaulted and Claimant reacquired full title to the property. However, it appears that Claimant continued to
have an interest the property, albeit, a vendor's interest.
Owner Date of Acquisition - (Claim 1) October 25, 1979 and (Claim 2) June 1, 1970
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
Page 2 of 5 - Exhibit A - Order No. 2006-044 (04/05/06)
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 - F2 - Forest Use, WA -Wildlife Area Combining 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 Forest Use and Wildlife Area Combining zoning as restricting the
Claimant's desired use of these properties. These regulations are County land use regulations, which are
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 Claimant has applied for a land division of either property resulting in the
current zoning being enforced on the subject property. Claimant has not demonstrated that submitting an
application for further land division would be futile. However, this Report confirms that such an application
for residential development 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 - (Claim 1) $900,000 ($450,000 each parcel), (Claim 2) $1,000,000 alleged in claim
The ordinance requires that the claimant provide evidence of the amount of 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 of available domestic water, sanitary sewer or road access to
support additional lots. Claimant has submitted no evidence on which they base their opinion as to the
Page 3 of 5 - Exhibit A - Order No. 2006-044 (04/05/06)
diminution in value based upon application of County land use regulations on their properties. Assuming
Claimant could obtain approval of a land division of the property, absent current Forest and WA 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
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 October 24,
1979 (Claim 1) and June 1970 (Claim 2). As to Claim 1, this date of acquisition follows the effective date
of PL-15, the 1979 county zoning ordinance. The acquisition date for Claim 2 predates the effective date
of PL-2, 1970 subdivision 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 his use of the subject properties based on non-exempt land use regulations in effect on October 24,
1979 as to Claim 1 and June 1, 1970 as to Claim 2, the dates he acquired an interest in the properties.
There was zoning of the properties involved in Claim 1 at the time of acquisition. It remains to be seen
when a development application is submitted whether it would be feasible for available domestic water,
Page 4 of 5 - Exhibit A - Order No. 2006-044 (04/05/06)
and sanitary waste disposal. The non-exempt County land use regulations that were in effect at the time
Claimant acquired each property would be applied to a land division application for each property.
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
October 24, 1979, as to Claim 1, to allow the owner to use the subject property in a manner permitted at
the time he acquired an interest in that property. The Order would also have the effect of waiving the non-
exempt County land use regulations that were not in effect until after June 1, 1970, as to Claim 2 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 Forest and Wildlife Area Combining 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 development under current regulations.
Cautionary Note on Measure 37
Claimant should understand that a decision by Deschutes County may not enable him 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 No. 2006-044 (04/05/06)
EXHIBIT B
cLJR~M
The East {Ina-halt (E-lit) of the Southeiiat One-.quarter (SE-1/4)
Section 15, ToWn4hip 17 South, Range 11 East of the Willamette
Meridian. CL~ I lm '
Xorttnmat Quarter of the Southuffst Warter Fedtion Fcurtccn (l11'. Tm,-
ahip seventeen (17) So-,%h, Bitttn (111 Fast of the %L11!,'mettC Merillsn,
Dosetrutes Co~snty, oregm. and In add! Lion thcntw ar, easervtt for lvr oscs of
ingress and eartse Tttiriy (01 Net in vldth ;rom the t€rrt:wast turner theme'..
essterly W Johnson Road, such es.tecvnt b lne more psrtivUerly deacribod e,- Ir
3orth ?tarty 0D) feat or utt !u:r•uwum 4uarrvt vt' u#,j Z4,uttuvitt Quartcr
and the north Thirty (.%9 fcrt yr tits; €,urtt<zt, a: trr Nort.hvest Quarter W. tt.«
' . ht;rc+•. :tt,►.,i, r1.1 bciiis !t+ ::rai n l':ntir'
SOU"cast Qu+rter {tNJ-ff.j ~ wr.~t of
(14), Tmirhil` Sevrntetn (171 Swth, =»r.L t=: 0; ,1 he
Meridian. Seschutec Ccnrnty, UrOW"'
DOCUMENT POOR QUALITY
AT TIME OF RECORDING.
Order No. 2006-044; Hopp