2006-958-Order No. 2006-114 Recorded 9/29/2006COUNTY r
NANCYUBLANKENSHIP,F000NTY CLERKDS V 2006.958
COMMISSIONERS' JOURNAL 09/29/2006 11;17;47 AM
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2008-958
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DESCHUTES
LE D NANCY o
COUNTY CLERKDS 2006.65557
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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 Donnie and Judie Dunn * ORDER NO. 2006-114
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, Donnie and Judie Dunn made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 1515 W. Antler Ave., Redmond, 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 May 2, 2006, Donnie and Judie Dunn filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 1515 W. Antler Ave., Redmond, 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 30, 1974 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 Donnie and Judie Dunn are the present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since July 30, 1974. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2006-114 (09/25/06)
5. The Board concurs with the Administrator's report that County regulations adopted after the
Claimants acquired their property, Open Space and Conservation, if applied to the subject
property, would not have permitted a residential subdivision on this subject property.
6. The Board concurs with the Administrator's report that an application for a residential
subdivision on the subject property would be subject to review and approval by the City of
Redmond, but under County land use regulations adopted after 1974 would have been denied.
Therefore, such an application to determine enforcement of the County 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.
8. 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 build a
residential subdivision on 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 first 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 30, 1974. 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 Donnie and Judie Dunn.
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
PAGE 2 of 3- ORDER No. 2006-114 (09/25/06)
SUBSEQUENT LAND USE APPLICATIONS ASSOCIATED WITH THE SUBJECT PROPERTY,
APPROVAL MAY NOT BE GRANTED WITHOUT A VALID WAIVER FROM THE CITY OF REDMOND
AND THE STATE PERTAINING TO CITY AND STATE REGULATIONS WHICH WOULD OTHERWISE
PRECLUDE THE PROPOSED LAND USE. THIS WAIVER APPLIES ONLY TO THE LOCAL
REGULATIONS SPECIFIED ABOVE. DESCHUTES iCOUNTY LACKS THE AUTHORITY TO WAIVE
ANY CITY OR STATE REGULATIONS OR LAWS:, CITY AND 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
CITY OF REDMOND AND THE STATE OF OREGON.
i
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 September, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHU S COUNTY, OREGON
R.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2006-114 (09/25/06)
RFV VT ARN(l VT(`R rTTATA
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 - Donnie and Judie Dunn (Claimant)
1515 W Antler. Redmond. OR
Introduction
DATE: September 14, 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 are 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 May 2, 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 6.7 acres. The property is currently located in the City of Redmond
(City), having been annexed in 1982. According to the Claimant the current City zoning is Park Reserve
Open Space (OSPR) which prohibits residential subdivision development. Prior to annexation the County
Page 1 of 5 - Exhibit A - Order No. 2006-114
adopted an Open Space and Conservation zoning designation, which followed an earlier residential
designation. The Claimants' desired use is a residential subdivision and Claimants allege a reduction in
value of approximately $4,000,000 due to the inability to develop as desired. The following is an analysis
of the evidence in the record on the elements of this Measure 37 claim.
Current Owner - Donnie and Judie Dunn
The property was initially acquired by Donnie and Judie Dunn by Personal Representative Deed on July
30, 1974. County Records, submitted with the claim indicate that Claimants continue to have an interest
in the subject property. Based upon the foregoing, it appears that Claimants' interest in the property for
Measure 37 was established on July 30, 1974.
Owner Date of Acquisition - July 30, 1974.
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 that Donnie and Judy Dunn acquired an interest is the date of the Personal Representative
Deed, dated July 30, 1974. Thus Claimant has "an interest" for Measure 37 purposes and such interest
first arose in 1974.
Restrictive Regulation - Park Reserve Open Space.
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 County's Open Space and Conservation zoning which applied to the
property prior to its annexation as restricting Claimants' ability to develop the property as a residential
subdivision. The property was first zoned R-1, Urban Residential, in 1973 under Article 3 of PL-5, the
Page 2 of 5 - Exhibit A - Order No. 2006-114
county's first zoning ordinance. Subsequently, a new County zoning ordinance, PL-15, was adopted in
1979, together with associated zoning maps, which designated the subject property Open Space and
Conservation and thus precluded residential subdivision. Claimant recognizes that the City of Redmond
would have jurisdiction over development of the property and has indicated that a separate Measure 37
claim has been or will be filed with the City. While the City would need to evaluate any land use
application that may be submitted pursuant to regulations in effect at the time Claimant first acquired an
interest in the property, it appears that, based upon zoning in effect in 1974, that development of the
property for a residential subdivision would have been allowed under then existing County zoning.
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 Claimant has applied for a land division of the property resulting in the
current zoning being enforced on the subject property. Claimant unsuccessfully challenged the City's park
reserve open space zoning designation. Thus, Claimant has demonstrated that an application today for a
residential subdivision would be denied. Therefore, DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $4,157,650 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 a County's land use regulation
that was first adopted or applied after the claimant first acquired the property.
• Claimants have not submitted evidence that domestic water or sanitary service is or would be
feasible for the desired partition. However, since this property is located within the City, it is
expected that any subdivision to be built would need to furnish City water, sanitary sewer service
and access.
• Claimants have submitted evidence in the form of an opinion from Judie Dunn, a licensed real
estate agent showing the value of the property today as a residential subdivision compared with
its current value based upon the County Assessor's records. 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 property.
Furthermore, Claimants' alleged reduction in value appears to be based upon the assumption that as a
residential subdivision, individual lots would be fully marketable and useable by others for such use.
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 City, the County and the State, could develop the property for a residential subdivision, future
Page 3 of 5 - Exhibit A - Order No. 2006-114
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 have obtained approval of a residential subdivision on the
property on the date they first acquired an interest in the property, but not under zoning restrictions
adopted by the City and the County 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, Donnie and Judie Dunn have continuously owned an interest in the property since 1974. 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 30,
Page 4 of 5 - Exhibit A - Order No. 2006-114
1974, 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 for water, septic and access would
be determined in connection with a development application. The zoning that was in effect at the time the
owner acquired the property would be applied to any building permit 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 30, 1974, 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'
residential 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 City of Redmond and the State of Oregon approve a
waiver of applicable City and State land use regulations. Claimants who wish to obtain information
relative to their "City" and "State" claims under Measure 37 are advised to contact the City of Redmond
Planning Department and the State Department of Land Conservation and Development and the
Department of Administrative Services.
Page 5 of 5 - Exhibit A - Order No. 2006-114
EXHIBIT B
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willamett°e ttt.fj3l aY ; EXCEPT that portiajn
conveybd to ^ptschubs Gounfy by -deed
rec6r'de ~ iay,?grid..,~972:5_ in_Vol, 184 Order No. 2006-114; Dunn