2006-850-Order No. 2006-110 Recorded 8/29/2006COUNTY
NANCYUBLANKENSHIP,FC UNTY CLERKDS yJ ~0~6~~5Q
COMMISSIONERS' JOURNAL 08/29/2006 10:23:59 AM
II IIIIIII~II~IIIIIIIIIIIIIII
2 06-850
Do not remove this page from original document.
Deschutes County Clerk
Certificate Page
-r--h
If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
previously recorded in Book
or as Fee Number
and Page
REVIE D
LEGAL COUNSEL
COUNTY1OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS ~aOS'SB9Bi
IIIIIIIIIIIII1111111illllllllllill1111111111111 NO FEE
004 061552006005888 0090082 08/28/2006 03;35;25 PM
D-M07 Cntsi Stn:4 TRACY
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 Reece and Lorene
Richardson to Use the Subject Property as
Allowed When They Acquired the Property
* ORDER NO. 2006-110
*
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, Reece and Lorene Richardson made a timely demand for compensation under Measure 37
for a reduction in value to their property at 69765 Goodrich Rd., 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;
On March 29, 2006, Reece and Lorene Richardson filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 69765 Goodrich Rd. Sisiters, Oregon and 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 July 6, 1977 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 Reece and Lorene Richardson are
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since July 6, 1977. The County finds and concludes as set forth
below.
5. The Board concurs with the Administrator's report that the current regulation, Exclusive Farm
Use and WA, Wildlife Combining zoning, if applied to the subject property, would not permit a
PAGE 1 of 3- ORDER No. 2006-110 (08/28/06)
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 have
reduced the value of the subject property.
The Board concurs with the Administrator's report that Claimants have demonstrated that
domestic water and access for the desired use on the subject property are feasible. However,
these matters can and would be evaluated in connection with a development application.
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 July 6, 1977. 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 Reece and Lorene Richardson.
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
PAGE 2 of 3- ORDER No. 2006-110 (08/28/06)
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 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 Z-S"' day of August, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTOUNTY, OREGON
R. LUKE, CHAIR
ATTEST:
Recording Secretary
BEV C,ILARNO, VICE CHAIR
. 1hl,..1a 11w Ogt~ -
MI AEL M. DALY, Ca ISSIONER
PAGE 3 of 3- ORDER No. 2006-110 (08/28/06)
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 - Reece and Lorene Richardson (Claimant)
69765 Goodrich Rd., Sisters, OR
Introduction
DATE: August 21, 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 March 29, 2006, when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. The property is about 36 acres. The current zoning is Exclusive Farm Use, EFU - Sisters
Cloverdale subzone and Wildlife Area, WA Combining. The Claimants' desired use is a partition and
Claimants allege a reduction in value of approximately $475,000 due to the inability to divide the property
Page 1 of 5 - Exhibit A - Order No. 2006-110
as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37
claim.
Current Owner - Reece and Lorene Richardson
Based upon an escrow closing statement Claimants Reece and Lorene Richardson purchased the
property described in Exhibit B. This is confirmed by copy of a deed, dated July 6, 1977 and recorded in
the Clerk's office at that time. County records confirm that Claimants continue to possess an interest in
the property.
Owner Date of Acquisition - July 6, 1977
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 Reece and Lorene Richardson acquired an interest is the date of the Warranty Deed,
dated July 6, 1977. Thus Claimants have "an interest" for Measure 37 purposes and such interest first
arose in 1977.
Restrictive Requlation - Exclusive Farm Use - EFU and Wildlife Area - WA Combining.
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 PL-15, the Deschutes County Zoning Ordinance, adopted in 1979, together with associated
zoning maps, which designated their property as exclusive farm use, as regulations adopted by the
County after their acquisition of the property which have reduced the value of their property by preventing
them from dividing it. In addition county staff notes that a Wildlife Combining zone is another county
regulation which restricts Claimants' the desired use, a partition. While the county would need to
Page 2 of 5 - Exhibit A - Order No. 2006-110
evaluate any land use application that may be submitted pursuant to regulations in effect at the time
Claimants first acquired an interest in the property, it appears that, based upon zoning in effect in 1977,
that a partition of the property would have been allowed.
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 successfully partitioned their original
parcel into two parcels, selling approximately 5 acres in 1978. (See: County file no. MP-78-114)
Claimants have not demonstrated that submitting an application for such a land division today would be
futile. However, this Report confirms that such an application for the desired partition 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 - $475,000 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 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 evidence showing available access.
• Claimants have submitted evidence in the form of an opinion from a real estate agent showing
the value of the property today if it were partitioned into three lots. This opinion does not address
the value of the property at the time the County adopted restrictive zoning regulations. Nor does it
address the cost of developing the separate lots.
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. Assuming an 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
Page 3 of 5 - Exhibit A - Order No. 2006-110
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 have obtained approval of a partition of the property on the
date they first acquired an interest in 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:
"(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, Reece and Lorene Richardson have continuously owned an interest in the property since
1977. 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 July 6,
1977, the date when Claimants first acquired an interest in the property. There is 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. Feasibility of the desired use of additional lots for water, septic
Page 4 of 5 - Exhibit A - Order No. 2006-110
and access would be determined in connection with a partition application. The zoning that was in effect
at the time the 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
July 6, 1977, 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 development
permit. By granting a waiver, the County does not commit itself to approving Claimants' desired
subdivision.
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. 2006-110
The Northeast Quarter of the Southeast Quarter (NEl/4 SE1/4) of Section 30, Township
14 South, Range 11 East of the Willamette Meridian, Deschutes County, Oregon.
EXCEPTING THEREFROM the northerly sixty feet and ALSO EXCEPTING
THEREFROM the East Half of the Southeast Quarter of the Northeast Quarter of the
Southeast Quarter (E 1/2 SE 1/4 NE 1/4 SE 1/4) of said section 30.
EXHIBIT B