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2006-725-Order No. 2006-107 Recorded 7/14/2006DESCHUTES COUNTY CLERKS yd ~VQ~~ NANCY 169 COMMISSIONERS' JOURNAL II (I I II I I IIII II III) I III I I I II III 07/14/2006 08:52; 09 AM 2004-7 25 DESCHUTES COUNTY CLERK CERTIFICATE PAGE C n W O 1 This page must be included if document is re-recorded. Do Not remove from original document. COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS 006.46003 REVIE D 111111 IIII I1111IIIIIiIIIIIIIIII NO FEE LEGAL C UNSEL 11111111 II III 478 32 0800480030080086 D-M37 Cntsi Stn=23 LADENE/13~ZOOB Ol;31:5~ p This is a no foe document BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Amending Order No. 2005-092, Approving a Waiver of Land Use Regulations to * ORDER NO. 2006-107 Authorize Laurel Griffiths to Use the Subject Property as Allowed When She Acquired the Property WHEREAS, On September 28, 2005 following a public hearing the Board adopted Order No. 2005-092, and thereby announced the Board's decision to approve an application submitted by Laurel Griffiths under the provisions of Measure 37 (since codified at ORS 197.352); and WHEREAS, prior to the public hearing the-claimant's representative submitted documentation later received by the Board, which demonstrated that claimant had acquired an interest in the property in 1949, despite the fact that the deed to the property did not include her name until 1985; and WHEREAS, Board concluded that the appropriate date of acquisition date should be 1949, not 1985; and WHEREAS, Order No. 2005-092 had the effect of waiving County land use regulations from an acquisition date of 1985 and was based upon a form of order submitted for Board approval prior to its receipt of the information indicating the earlier 1949 acquisition date and therefore does not reflect the Board's decision; now therefore: THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. Order No. 2005-092, section 2 is amended as follows: "Section 2. The Board hereby elects to not apply zoning and nonexempt land use regulations to the subject property 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 she acquired the property. Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the time she acquired the property. That use shall be permitted if the subject property fully complies with all regulations in effect in 1949. 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 2. Except as otherwise provided herein, the terms and conditions set forth in Order No. 2005- 092 shall be unchanged. PAGE 1 of 2 - ORDER No. 2006-107 (07/12/06) Section 3. This Order shall be recorded in the Deschutes County Deed Records for purposes of identifying the subject property. DATED this day of July, 2006. ATTEST: Recording Secretary BOARD OF, TY COMMISSIONERS OF DESCAS COUNTY, OREGON n DMNIS UKE, C it BEV CL O, Vice-Chair MICHAEL NT. DALY, Co711issioner PAGE 2 OF 2 - ORDER No. 2006-107 (07/12/06) i i 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: September 28, 2005 From: Michael A. Maier, County Administrator RE: Measure 37 Claim - Laurel H. Griffiths 717 NW Helmholtz Way, Redmond Introduction The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial submission, asking that the Claimant 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. Claimant and affected parties have the opportunity to rebut this Report and provide additional relevant evidence to the Board. Also, under the County's process, Claimant 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 April 13, 2005 when Measure 37 was in lawful effect. Claimant has paid the filing fee and the County's official demand form has been submitted. The property is about 115 acres. The current zoning is Exclusive Farm Use, Tumalo Page 1 of 5 - Exhibit A - Order No. 2005-092 Redmond Bend subzone (EFU-TRB) with a farm use minimum lot size. The Claimants' desired use is to develop the property into a 58-lot subdivision with lots of 2 acres each. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Claimant is represented in this proceeding by Bedsaul Consulting, Inc. Current Owner - Laurel H. Griffiths . Claimant presented two deeds relating to family member ownership from 1949. The property was first acquired in 1949. A quitclaim deed shows James Griffiths as the grantee. The 1949 deed contains a description which is illegible and includes no recording stamp. A copy of a marriage license has been furnished showing that in 1948 James Griffiths married Laurel H. Brown, the present Laurel Griffiths. A second deed shows that in 1985 James Griffiths conveyed the property to himself and his wife, the present claimant. The 1985 deed contains a different description, which in pertinent part reads: "The SE1/4 NW1/4 and the N1/2 SW1/4; except that portion lying within the right of way of Whitted Road." This latter description corresponds with the Tax lot number furnished by Claimant as the subject property. Claimant asserts an ownership interest in the property from 1949 based upon her marriage to James Griffiths, despite the fact that the original deed only listed James Griffiths, who later transfered title to himself and his wife jointly in 1985. On September 26, 2005 Claimant's attorney faxed to County a letter and copies of several documents indicating the intent of the Claimant and her late husband with respect to the property. These documents include a mortgage given by them to the Federal Land Bank in Spokane, dated December 20, 1949 and recorded at Volume 69, page 391, Deschutes County records; a loan made by the f=ederal Land Bank of Spokane to both Claimant and her husband in 1950; and a second mortgage given by Claimant and her husband to the Federal Land Bank of Spokane in November 1971. Each mortgage refers to the property as the SE1/4 NW1/4 and the N1/2 SW1/4 of Section Seven, Township fifteen Southy, Range Thirteen East of the Willamette Meridian. Claimant asserts that the reason her name was not contained on the 1949 deed was due to an oversight, that the execution of the note and mortgages supports the conclusion that the parties intended to share ownership of the property. There is no evidence that Claimant was not intended to share ownership with her husband. Page 2 of 5 - Exhibit A - Order No. 2005-092 Owners Date of Acquisition 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 that 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. Measure 37 defines "Owner' as the present owner of the property, or any interest therein. (Emphasis added). The italicised phrase indicates an intent that ownership be interpreted broadly, and not based strictly on whether a claimant holds legal title. In this instance the evidence furnished by Claimant' supports the conclusion that she and her husband intended to share the property, as they apparently did from 1949 until her husband passed away, and she continued to the own the property thereafter. The first date Claimant, Laurel Griffiths acquired an interest is 1949, the date that the property was acquired by the Griffiths. Laurel Griffiths has been an Owner for Measure 37 purposes continuously since that time. Restrictive Regulation - EFU 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 time the property was acquired. The Claimant must also show that these identified regulations cause a reduction of property value. The Claimant has identified County zoning regulations adopted in 1971 and thereafter as restricting the Claimant's desired use of a 58-lot residential subdivision. The applicability of additional development standards will be determined consistent with the Board's Order when a specific land use application has been received. Non-exempt regulations will not be Page 3 of 5 -.Exhibit A - Order No. 2005-092 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 her. Although the Claimant applied for a land division of the property resulting in the current zoning being enforced on the subject property (See: MP-02-34), that partition has not been completed. Claimant has not demonstrated that submitting an application for the desired subdivision would be futile. However, this Report confirms that an application for the desired subdivision 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 - $3,772,190 alleged on Claim Form The ordinance requires that Claimants 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 electricity is available. • Claimant has submitted no evidence that the property would qualify for septic permit approval as evidence that septic approval is feasible in the area. • Claimant has submitted no evidence that demonstrates access for 58 proposed lots. • Claimant has not submitted an appraisal of the reduction in value or evidence of the reduction in value that complies with DCC 14.10.040(1). Furthermore, the analysis that is provided is premised on development of 58 2-acre lots. Assuming Claimant Laurel Griffiths could obtain approval of a subdivision of the property, absent County zoning restrictions adopted after she acquired her interest in the property, the value of her property for Measure 37 purposes would be substantially reduced. Effect of Countv 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: 78) Notwithstanding any other state statute or the availability of funds under subsection (90) of this act, in lieu of payment of just compensation under this act, Page 4 of 5 - Exhibit A - Order No. 2005-092 the goveming 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 propertv."(emphasis added) 11(c) "Owner" Js 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 1949. 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 Laurel Griffiths, as an owner of the property, submitted a claim pursuant to Measure 37 that demonstrates eligibility for her use of the subject property based on non-exempt county land use regulations in effect on 1949 the date she acquired an interest in the property. There was no 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, sanitary waste disposal and public road access. 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 1949, to allow Laurel Griffiths to use the subject property in a manner permitted at that time. In essence, the County would not apply any land use regulations to Laurel Griffith's property which were not in effect when she 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 development of any use that the regulations in effect on her acquisition date would allow. Page 5 of 5 - Exhibit A - Order No. 2005-092 EXHIBIT B xn Township 15 South, Range 13 Past of the Willamette lb- Meridian, Deschutes County, Oregon. S*ction 7s The 631/4 NW1/4 and the N112 Swl/4; EXCEPT that portion lying within the right of way of Mhitted Road. Order No. 2005-092; Griffiths