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2006-726-Order No. 2006-106 Recorded 7/14/2006NANCYUBLANKECOUNTY OFFICIAL NSHIP, COUNTY CLERKDS ~J 2006'726 COMMISSIONERS' JOURNAL 01/1412006 08:52:09 AM I2006-726 DESCHUTES COUNTY CLERK CERTIFICATE PAGE - r - l 0 Z This page must be included if document is re-recorded. Do Not remove from original document. REV Ga 74i~ LEGAL COUNSEL DESCNUTES.000NTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK 200649004 NO FEE 00478714200800480040080090 0111312006 01;31;52 PM D-M37 Cntml Stnm23 LADENE 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 David and Janet King to Use the Subject Property as Allowed When They Acquired the Property * ORDER NO. 2006-106 * 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, David and Janet King made a timely demand for compensation under Measure 37 for a reduction in value to their property at 65435 Cline Falls 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 February 16, 2006, David and Janet King filed a Measure 37 claim with the Community Development Department. 2. The property is located at 65435 Cline Falls Rd., Bend, Oregon is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property that were not already in effect until after May 26, 1972 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 David and Janet King are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since May 26, 1972. The County finds and concludes as set forth below. 5. The Board concurs with the Administrator's report that the current regulation, MUA 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. PAGE 1 of 3- ORDER No. 2006-106 (07/12/06) 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 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 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 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 properties described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37. 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 May 26, 1972. 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) is subject to this Board's order as to date of acquisition for David and Janet King. 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 LAWS AND REGULATIONS MAY APPLY TO THE USE OF THE PROPERTY DESCRIBED HEREIN, PAGE 2 of 3- ORDER No. 2006-106 (07/12/06) AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON. Section 7. 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 eday of July, 2006. ATTEST: Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTFS COUNTY, OREGON D . LUKE, CHAIR BEV CLARNO, VICE CHAIR z/ Al., 2 of~p' 7f J4 MIC AEL M. DA Y, MISSIONER PACE 3 of 3- ORDER No. 2006-106 (07/12/06) 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.org TO: Board of County Commissioners From: David Kanner, County Administrator RE: Measure 37 Claim - David and Janet King (Claimant) 65435 Cline Falls Rd.. Bend OR Introduction DATE: July 12, 2006 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 February 16, 2006, 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, is about 16.5 acres (see attached). The current zoning is Multiple Use Agricultural (MUA-10) with a 10-acre minimum lot size. The Claimant's desired use is a 3-lot partition and Claimants allege a reduction in value of approximately $700,000 due to the inability to divide the property Page 1 of 5 - Exhibit A - Order No. 2006-106 as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - David and Janet King Claimants submitted a copy of a Contract of Sale, dated May 26, 1972, indicating they purchased the property from Donald and Norma Wood. Having fulfilled the contract, Claimants received a Warranty Deed to the property, dated May 4, 1978. Claimants sold a portion of the property in 1973 to George and Ivy Slater. Such portion is not part of this claim. Owner Date of Acquisition - May 26, 1972 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 unrecorded Contract of Sale. The current owners are David and Janet King, having acquired an interest in the property in 1972 and owning the subject property continuously since that time. Restrictive Regulation - MUA zoning with 10-acre minimum lot size. 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, and thus reduce the value of the claimant's property. The Claimants have identified the MUA zoning as the land use regulations restricting the desired use, a 3-lot residential partition. 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 Page 2 of 5 - Exhibit A - Order No. 2006-106 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 - $700,000 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 partition. • Claimants have submitted no evidence that sanitary service is or would be feasible for the desired partition. • Claimants have submitted no evidence as to the diminution in value of the property as of the date of adoption of County land use regulations. Claimants' evidence consists of a current market appraisal with and without application of current land use regulations. Furthermore, Claimants' alleged reduction in value appears to be based upon the assumption that lots created by partitioning the property are fully marketable and useable by others for development. Referring to a recent Opinion of the Oregon Attorney General, rights obtained under Measure 37 are personal to the present property owner. Although the owner, having obtained the necessary "waivers" from the County and the State, could partition the property, future owners would, according to the Attorney General, be precluded from using the property in a manner inconsistent with land use regulations in effect at the time of the transfer. Thus, the amount of reduction in value asserted by the Claimants may be unreliable, if the resulting lots are unusable by future owners, based on their having to comply with zoning regulations in place when such future owners acquire the property. Assuming without deciding Claimants could obtain approval of a partition of the property, but not under zoning restrictions adopted after Claimants' acquisition date, and the resulting lots are fully marketable and useable by future owners, then the value of Claimants' property for Measure 37 purposes would be reduced. Consistent with the County's procedural ordinance, Chapter 14.10, this report takes no position on whether a waiver obtained by a claimant and any resulting development approval are fully transferable with the property. 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: Page 3 of 5 - Exhibit A - Order No. 2006-106 "(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, David and Janet King Ward have continuously owned an interest in the property since 1972. This precedes certain county land use regulations. 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 its use of the subject property based on nonexempt land use regulations in effect on May 26, 1972, the date when Claimants first acquired an interest in the property. The County Subdivision Ordinance of 1970, PL-2, was in effect 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 or may not be feasible for water, septic and access. The zoning that was in effect at the time the owner 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 nonexempt County land use regulations which were not in effect until after May 26, 1972, 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 property which were not in effect when the particular Claimants acquired the property. This waiver is not a Page 4 of 5 - Exhibit A - Order No. 2006-106 development permit. By granting a waiver, the County does not commit itself to approving Claimants' desired 3-lot partition. Cautionary Note on Measure 37 Claimants should understand that a decision by Deschutes County may not enable her 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. 2006-106 EXHIBIT B the South to-half of the Soutbeaaat Quarter c e :h - Xortheast duarter {Ss B s I of Section ainetae;L4 9! Tvvwhi+~ S as to t16) ffiott4hr Tcrt;►1 12) last d '""4~W- the will , vase" o. ' Y, 11=b* MMUT X a portion of the South Ralf o. the Southeast: Quaztar of the Eortheaat cuarter of Snctiam t4inataqu (19) To' 2tip Sixtuan (16) iouth, Aungfe TwIve (12) East of tha Willamttat zftr3d.£am, wuehutcu County, Careg4on, deacrioea aj toUvwa= Saginning At the Soutbtaast 00% to of said ShS$'~ 4 thence Westerly to the West"Iy Uu* pl C.Upe rails Flo I r at Road and iha tow pmt of bagl.zu 1nj.- thanow a+t Along the ScAth und"T tsf' 8"4 $kSMkrXXj 436 9"tP tb tant?e Morth 300 Unts thetice t;, 438. fo t to the ant *A tba wester line of Cline VaIU 1d luaket road; Wince Srutu 300 feet to tho point of begiantult =ERVING in easement fog 4*-w4►ter r fiv* feet in vidtu, or needed a for repairs ' fx= an existing panel 2o=tcd on the bmks'z'a # section 19, Township '16 South, Ran je 12 East of the Wi 7 l t:t e Marldian, a av3u the above parcel to t North hall of th% SEli t, S'ac Aou 19, To reship 16 South, ftngc 22 East of the Wi2lazette ftridia q# Ve5rhut" C+oazz ty, DOCUMENT POOR QUALITY Nto. 7066- t o& g cT ~U ~ ta., F OF RECORDING.