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2006-390-Order No. 2006-046 Recorded 4/7/2006COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKS CJ 1006.390 COMMISSIONERS' JOURNAL 1111111„ 111 04/07/2006 02;29;14 PM 2006-30 DESCHUTES COUNTY CLERK CERTIFICATE PAGE . C - This page must be included if document is re-recorded. Do Not remove from original document. VIEWE DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK 2006-23728 LEGAL COU1 SEL II I II i 111 ll l ll li l ll l l ll l 1111 l III I I I I Ii l 1111 lli 111 NO FEE 00452752200600237280080091 04/06/2006 04;06;37 PM D-M37 Cnta1 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 John and Charlene Stoltz to Use the Subject Property as Allowed When They Acquired the Property * ORDER NO. 2006-046 * 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, John and Charlene Stoltz made a timely demand for compensation under Measure 37 for a reduction in value to their property along Harrington Loop (Map 15-11-31, Lot 901) Sisters, 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 October 28, 2005, John and Charlene Stoltz filed a Measure 37 claim with the Community Development Department. 2. Claimants' property along Harrington Loop (Map 15-11-31, Lot 901) Sisters, Oregon is within Deschutes County. The County Administrator has recommended that the zoning regulations for the subject property along Harrington Loop (Map 15-11-31, Lot 901) Sisters, Oregon that were not already in effect until after March 1, 1968 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 John and Charlene Stoltz are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since March 15, 1968. PAGE 1 of 3 - ORDER No. 2006-046 (04/05/06) 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 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. 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 Peterson'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 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 14, 1968. Th e 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 PAGE 2 of 3 - ORDER No. 2006-046 (04/05/06) 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. DATED this.s day of April, 2006. ATTEST: i/?l U"-~ Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESC S COUNTY, OREGON JIIS R. LUKE, CHAIR BEV CJ,ARNO, VICE CHAIR aj-'310-~ - MICHAEL M. DALY, COMMISSIONER PACE 3 of 3 - ORDER No. 2006-046 (04/05/06) 4 C TO: Board of County Commissioners From: Michael A. Maier, County Administrator DATE: April 5, 2006 RE: Measure 37 Claim - John and Charlene Stoltz 15-11-31, Tox lot 901, (Harrington Loop ) Sisters OR Introduction The County processed the initial Measure 37 claims using its brief claim form, evaluating the submission, 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 which 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 28, 2005, when Measure 37 was in lawful effect. Claimants have paid the filing fee and the County's official demand form has been submitted. The property, shown on the attached map, is about 20 acres (see attached). The current zoning is Exclusive Farm Use, Terrebonne, Redmond Bend (EFTRB) with a farm use minimum lot 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 Page 1 of 5 - Exhibit A - Order No. 2005-046 size, Landscape Management Combining (LM). The claimant's desired use is a 8-lot subdivision and claimant alleges a reduction in value of $1.5 million due to the inability to subdivide the property as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Claimant is represented in these proceedings by Isa Taylor, attorney. Current Owner - John R. and Charlene Stoltz, husband and wife Claimants presented a copy of a Land sale contract, dated March 15, 1968, demonstrating that John and Charlene Stoltz, first acquired an interest in the subject property at that time. Claimants have also submitted a preliminary title report which indicates they are the current owners of the property. There is no evidence to indicate that between 1968 and the present there was a break in the Claimants' ownership. Owner Date of Acquisition - March 15, 1968 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. The first date of the current owner's acquiring an interest is the date of the Land sale contract. The current owners, John and Charlene Stoltz, are the original owners of the subject property, having acquired the property in 1968 and owning the subject property continuously since that time. Restrictive Regulation - EFUTRB 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 he or she otherwise could have used the property at the Page 2 of 5 - Exhibit A - Order No. 2005-046 time the property was acquired, and thus reduce the value of the claimant's property. The Claimants have identified the EFUTRB zoning as the land use regulation restricting the desired use, a 8-lot residential subdivision. This regulation is a County land use regulation, which is subject to Measure 37 claims. Enforcement of County Regulation - Futile DCC 14.10.040(G). Measure 37 requires that an ordinance which 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 - $1,500,000 alleged on Claim Form 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 for the desired subdivision. • Claimants have submitted no evidence that sanitary service is or would be feasible for the desired subdivision. • Claimants have submitted no evidence of a reduction in value of the property based upon applicability of county land use regulations adopted after Claimants' acquired the property. Assuming Claimants could obtain approval of a subdivision of the property, but not under current zoning restrictions, the value of Claimants' 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 owners, 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, Page 3 of 5 - Exhibit A - Order No. 2005-046 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) I I (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 1968. This predates the effective date of the County's 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 owners 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 has submitted a claim pursuant to Measure 37 which demonstrates eligibility for Claimants' use of the subject property based on nonexempt land use regulations in effect on March 15, 1968, the date they acquired an interest in the property. There was no zoning of the subject property at that time. There is no evidence in the record that some additional development on the subject property would be feasible for available domestic water, sanitary waste disposal and road access. Therefore, the desired use of additional lots may be feasible for water, septic and access. The zoning that was in effect at the time the present owner 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 nonexempt County land use regulations which were not in effect until after March 15, 1968, to allow the owner to use the property in a manner permitted at the time the owner acquired the property. In essence, the County would not apply any land use regulations to the Claimant's property which were not in effect when the Claimant acquired the property. This waiver is not a development permit. By granting a waiver, the County does not commit itself to approving Claimant's desired 8-lot subdivision. Claimant must apply for development of any use that the regulations in effect on March 15, 1968 would allow. Page 4 of 5 - Exhibit A - Order No. 2005-046 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. 2005-046 EXHIBIT B The West Half of the Northeast Quarter of the Northwest Quarter (W1/2NE1/4NW1/4) of Section Thirty-one (31), Township Fifteen (15) South, Range Eleven (11), East of the Willamette Meridian, Deschutes County, Oregon. Order No. 2006-046; Stoltz