2006-428-Order No. 2006-007 Recorded 4/17/2006DESCHUTES COUNTY OFFICIAL RECORDS CJ ?006'429
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 04/17/2006 10:53:45 AM
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2 08-428
DESCHUTES COUNTY CLERK
CERTIFICATE PAGE
This page must be included
if document is re-recorded.
Do Not remove from original document.
DESCHUTES COUNTY OFFICIAL RECORDS ~006~15131
BELAIED NANCY BL ANKENSHIP, COUNTY CLERK
L GAL L NO FEE
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00454899200800257370100103
04/14/2006 03;51;11 PM
D-H37 Cntml Stn=2 JEFF
This is s no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize William Miller to Use
the Subject Property as Allowed When He
Acquired the Property
* ORDER NO. 2006-007
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, William Miller made a timely demand for compensation under Measure 37 for a reduction
in value to their property along Lower Bridge Way, Deschutes County, Oregon due to regulations which took
effect after he 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 August 24, 2005, William Miller filed a Measure 37 claim with the Community
Development Department.
2. Claimant's property along Lower Bridge Way is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject
property, tax lot 1411000000300, along Lower Bridge Way, Bend, Oregon that were not
already in effect until after December 15, 1980 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 William Miller is the present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since December 15, 1980.
PAGE 1 OF 3- ORDER No. 2006-007 (04/12/06)
5. The Board concurs with the Administrator's report that the current regulation, EFU-CS 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 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. 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 William Miller'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 to use the subject property as permitted at the time he acquired the property.
Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time he acquired the property. That use shall be permitted if the subject property fully complies with all
regulations in effect on December 15, 1980. 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,
APPROVAL MAY NOT BE GRANTED WITHOUT A VALID WAIVER FROM THE STATE PERTAINING
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
PAGE 2 of 3- ORDER No. 2006-007 (04/12/06)
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. A
DATED DATED this y 1 day of April, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTOUNTY, OREGON
R. LUKE,
ATTEST:
136wv'J
Recording Secretary
PAGE 3 of 3- ORDER No. 2006-007 (04/12/06)
BEV CL'ARNO, VICE CHAIR
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: April 12, 2006
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - William Miller (Claimant)
Lower Bridge Way, Deschutes County, 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 August 24, 2005 when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official
demand form. The property is estimated to be 208 acres. The current zoning is EFU-SC. The Claimant's
Page 1 of 5 - Exhibit A - Order No. 2006-007 (04/12/06)
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 - William Miller
Claimant presented a copy of a Warranty Deed, dated December 15, 1980 showing when the Claimant
first acquired the property.. County records indicate that Claimant is also the current owner of the
property.
Owner Date of Acquisition - December 15, 1980
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.
The Claimant has identified the EFU zoning and several related land use regulations as restricting the
desired use of a 5-lot 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.
Page 2 of 5 - Exhibit A - Order No. 2006-007 (04/12/06)
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 permit resulting in the current zoning being enforced
on the subject property. Claimant has not demonstrated that submitting an application for the desired 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 - $1,600,000 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.
• County records indicate that access may be available from Lower Bridge Way, as evidence of
available road access for the desired additional lots.
• Claimant has submitted a statement on which he bases his opinion of the value of his property if
he were able to develop and sell 5 additional residential lots. The value does not include the cost
of development.
Assuming Claimant could obtain approval of a subdivision of the property, absent current EFU 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. 2006-007 (04/12/06)
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 1980. This
follows the effective date of PL-14, the subdivision and partition ordinance and PL-15, the County zoning
ordinance in effect.
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 property based on non-exempt land use regulations in effect on December 15,
1980, the date he acquired an interest in the property. There was 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 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
December 15, 1980, to allow the owner to use the subject property in a manner permitted at the time he
acquired an interest in the property. In essence, the County would not apply the current EFU 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. 2006-007 (04/12/06)
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 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. 2006-007 (04/12/06)
EXHIBIT B
Parcel 1. In Township 14 South, Range 11 East of the
Willamette Meridian, Deschutes County, Oregon Section
2: Government Lots 2, 3, and 4 and the Soutb 1/2 of
the NW 1/4.
Order No. 2006-007; Miller
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