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2006-851-Order No. 2006-134 Recorded 8/30/2006DESCHUTES COUNTY OFFICIAL RECORDS CJ X006-~S1 REVIE NANCY BLANKENSHIP, COUNTY CLERK ~ COMMISSIONERS' JOURNAL Og/30/2046 03;12;56 PM LEGAL COUNSEL II ill[I III 2 8 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Gregory Faris to Use the * ORDER NO. 2006-134 Subject Property as Allowed When He 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, Gregory Faris made a timely demand for compensation under Measure 37 for a reduction in value to his property at 20555 Pohaku Road, Bend, 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 July 22, 2005, Gregory Faris filed a Measure 37 claim with the Community Development Department. 2. Claimant's property at 20555 Pohaku Road, Bend is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property at 20555 Pohaku Road, Bend, Oregon that were not already in effect until after July 25, 1989, 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 Gregory Faris Family Trust is the present owner of the subject property described in Exhibit "B," having acquired an interest in it in November 2001, but having been owned by the Trustee, Gregory Faris continuously since July 25, 1989. PAGE 1 of 3- ORDER No. 2006-134 (08/28/06) 5. The Board concurs with the Administrator's report that the current regulation, EFU zoning, if applied to the subject property, would not permit a three-lot 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 the desired land division 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 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 the Faris 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. Claimant may apply for a use of the subject property consistent with the substantive land use regulations in effect at the time he 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 25, 1989. 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 Claimant's 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(l l)(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 Gregory Faris. 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. 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 PAGE 2 of 3- ORDER No. 2006-134 (08/28/06) PROPERTY DESCRIBED HEREIN, AND A WAIVER OF SUCH LAWS AND REGULATIONS MUST BE SEPARATELY OBTAINED BY THE OWNERS FROM THE STATE OF OREGON. AS A RESULT OF A DECISION BY THE MARION COUNTY CIRCUIT COURT, THE STATE MAY BE UNABLE TO PROCESS CLAIMS MADE UNDER MEASURE 37 CHALLENGING STATE LAND USE REGULATIONS. Section 6. This order does not affect any land use regulations of the State of Oregon. 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 any State regulations which would preclude the proposed land use. The outcome of a land use application will also affect the ability of the claimant to obtain any required building permits. 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 ~ day of August, 2006. BOARD OF COUNTY COMMISSIONERS OF DESCHUT4S COUNTY, OREGON !r~ --Z R. LUKE, ( ATTEST: G Recording Secretary c~j C, CkAA-,~ BEV C ARNO. VICE CHAIR e, X.0 I ~z I AEL M. DALY, OMMISSIONER PAGE 3 of 3- ORDER No. 2006-134 (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: Dave Kanner, County Administrator RE: Measure 37 Claim - Gregory S. Faris (Claimant) 20555 Pohaku Rd., Bend, Oreqon Introduction DATE: August 28, 2006 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 July 22, 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 63 acres. The current zoning is EFU-TRB with an Page 1 of 5 - Exhibit A - Order No. 2006-134 (08/28/06) agricultural minimum lot size. The Claimant's desired use is to develop the property into a 3-lot partition. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Gregory S. Faris Family Trust Claimant presented a copy of an Assignment of Contract, showing Gregory Faris acquired a vendees interest in the property on July 25, 1989 and recorded in the Deschutes County Deed Records at Vol. 189 Page 18941. Greg Faris,conveyed title to the property to the Gregory S. Faris Family Trust, a revocable trust by deed dated November 19, 2001 with Greg Faris appointed trustee. Owner Date of Acquisition - July 25, 1989 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. Greg Faris, as trustee of the Greg S. Faris Family Trust, is empowered to revoke the trust and vest title to the property in his individual name. This change in ownership has been treated as the equivalent of personal ownership for Measure 37 purposes. 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 the property at the time the property was acquired. The claimant must also show that these identified regulations cause a reduction of property value. Page 2 of 5 - Exhibit A - Order No. 2006-134 (08/28/06) The Claimant has identified the EFU-TRB zoning as the land use regulation restricting the desired use of a 3-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. 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 land division of the property resulting in the current zoning being enforced on the subject property. Claimant has 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 - $878,882 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 evidence that domestic water is available. • Claimant has submitted evidence that septic approval is feasible in the area • Claimant has identified both Pohaku and Hunnell Roads as available for access to the subject property for the desired additional lots. • Claimant has submitted an analysis of the reduction in value that complies with DCC 14. 10.040(1). The evidence calculates a reduced market value of $878,882 which does not include estimated costs of development. Assuming Claimant could obtain approval of a partition of the property, absent current EFU-TRB 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: Page 3 of 5 - Exhibit A - Order No. 2006-134 (08/28/06) "(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, the present owner has continuously owned an interest in the property since 1989. This follows the effective date of PL-15 which contains zoning regulations which may not allow the full extent of the desired use. 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 July 25, 1989, 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 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 July 25, 1989, 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-TRB zoning to the Claimant's property which were not in effect when the Claimant acquired the property unless they Page 4 of 5 - Exhibit A - Order No. 2006-134 (08/28/06) 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 July 25, 1989 regulations. 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 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. 2006-134 (08/28/06)