2006-572-Order No. 2006-009 Recorded 6/9/2006COUNTY
NANCYUBLANKENSHIP,P000NTY CLERKDS U 1006.572
COMMISSIONERS' JOURNAL 0610912006 09;36;40 AM
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/J REVIE COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS 1006.39709
LEGAL COUNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIillll NO FEE
0048975s200800387080090084
06/0812006 03:25:09 PM
D-H37 Cntmi Stn=25 JEFF
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 Chester and Betty * ORDER NO. 2006-009
Fullerton 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, Chester and Betty Fullerton made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 22460 McArdle Rd., Bend, 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 August 26, 2005, Chester and Betty Fullerton filed a Measure 37 claim with the Community
Development Department.
2. Claimants' property at 22460 McArdle Road, Bend, Oregon is within Deschutes County.
3. The County Administrator has recommended that the zoning regulations for the subject property
at 22460 McArdle Road, Bend, Oregon that were not already in effect until after March 1, 1967
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."
The Board concurs with the Administrator's report that Chester and Betty Fullerton are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously (either personally or through personally controled revocable living trust)
owned it since March 1, 1967.
PAGE 1 OF 3- ORDER No. 2006-009 (06/07/06)
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 partition 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 partition 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 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 lot 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 DESC1 UTES 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 Fullerton's claim is eligible under DCC 14.10.100.
Section 2. The Board hereby elects to not apply nonexempt County land use regulations, to the
subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot
Measure 37. Claimants Chester and Betty Fullerton are hereby authorized to use the subject property
as permitted at the time they acquired the property on March 1, 1967. Claimants may apply for a use
of the subject property consistent with the substantive land use regulations in effect at the time they
acquired the property. That land use shall be permitted if the subject property fully complies with all
substantive land use regulations in effect on March 1, 1967. The Community Development Director is
hereby authorized to determine the effects that any exempt land use regulations, as listed in ORS
197.352(3)(A)-(D), would have on Claimants' proposed use. As used in this section, "land use
regulations" refer to those listed in ORS 197.352(11) (B). The Board does not waive current
procedural regulations. Procedural regulations are those which set forth the system, method, or way of
processing land use applications, such as the requirement to submit a certain form. Substantive land
use regulations which are waived are those which regulate the actual use of the land, including those
listed in ORS 197.352(11)(B), and including regulations such as minimum lot sizes, density
restrictions, setbacks not protecting public safety, and height limits. The Board does not waive
exempt regulations which include those described in ORS 197.352(3), but the provisions of ORS
197.352(3)(E) are subject to this Board's order as to Claimants' date of acquisition.
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 N0.2006-009 (06/07/06)
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 -t A- day of June, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTTE, .ZOUNTY, OREGON
R. LUKE,
UAA-"~~
ATTEST:
Recording Secretary
BEV CILARNO, VICE CHAIR
C EL . DALY, COM SSIONER
PAGE 3 of 3- ORDER No. 2006-009 (06/07/06)
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.orq
TO: Board of County Commissioners DATE: June 6, 2006
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Chester E and Betty J Fullerton (Claimants)
22460 McArdle Road, Bend, 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 26, 2005 when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. The property is estimated to be 7.22 acres. The current zoning is EFU-TRB. The
Page 1 of 5 - Exhibit A - Order No. 2006-009 (06/07/06)
Claimants' desired use is to partition the property into two lots of approximately 3.22 and 4 acres, or allow
for the placement of a second dwelling on the existing lot. The following is an analysis of the evidence in
the record on the elements of this Measure 37 claim
Current Owner - Chester and Betty Fullerton
Claimants presented a copy of a Contract to purchase the property, dated March 1, 1967, showing that
Claimants acquired the property on that date. By separate warranty deed claimants acquired title to the
property in fulfillment of the contract. By deed, dated November 4, 2003 claimants conveyed their
interests in the property to revocable trusts with each of the claimants as named trustee.
Owner Date of Acquisition - March 1, 1967
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 Claimants have identified the EFU zoning and several related land use regulations as restricting the
desired use of a two-lot partition. 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. 2006-009 (06/07/06)
Non-exempt land use regulations will not be applied. Procedures applicable to land use applications will
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 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 - $65,000 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 evidence that domestic water is available.
• Claimants have submitted evidence that septic approval is feasible in the area
• Claimants have submitted a map showing access from Gosney and McArdle Roads, together
with a private easement, as evidence of available road access for the desired additional lots.
• Claimants have submitted a statement on which they base their opinion of the value of their
property if they were able to develop and sell one additional residential lot. The value includes the
cost of development.
Assuming Claimants could obtain approval of a partition 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,
Page 3 of 5 - Exhibit A - Order No. 2006-009 (06/07/06)
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 propertv. " (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 1967. This
precedes 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 owners 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
March 1. 1967, the date they acquired an interest in the property. There was no 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 Claimants acquired the property would
be applied to a partition 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
March 1, 1967, to allow the owners to use the subject property in a manner permitted at the time they
acquired an interest in the property. In essence, the County would not apply the current EFU zoning to
the Claimants' property which were not in effect when the Claimants 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. Claimants must apply for a partition under current regulations.
Page 4 of 5 - Exhibit A - Order No. 2006-009 (06/07/06)
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 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. 2006-009 (06/07/06)
EXHIBIT B
The Vortb 472.98 feet of the Northeast Qu rtc of he
outlveeat; Quarter of the Northwest Qui-rter {NHrt ~,~~i~"~' a
of Section Sevonteer. (17), Town hip Eight;cen (18)
Scu°i=h, Riango "r h i. rteon (.13) E. W. M., Deryc chutes county,
Orc con,
Toget:lier with 311 acres of Arnold Irrigation watcn:
appurtcnm'It thus t o.
Togetber witli ar. casoi thni: fur an irrictation ditrc 1 a
now c*xist6 acro.,~; the SouthwcsL Quarter" of the t~orthw jst
Qljart.er {Si" zt W!;j) of Section Seventy=en (17), 't)wnship
i ight een (i£?) Scuth, Rangc: TbirL'cen (2 E. 1.1. M7.,
Det;chut:;es Coinit"y, Oregon.
Any structure built, upon said premises $hal1
with Rini€rum P. 14. A. building requir(-:-:z :ntz.
Order No. 2006-009; Fullerton