2006-959-Order No. 2006-116 Recorded 9/29/2006COUNTY OFFICIAL P
NANCYUBLANKENSHIP, COUNTY CLERKOS 1~J ?006.959
COMMISSIONERS' JOURNAL
09/29/2006 !1;18;02 AM
2006-9'30
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Deschutes County Clerk
Certificate Page
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statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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*LGAL EVIE NANCYUBLANKECOUNTY NSHIP~FCOUNTY CLERKDS 100665558
COUNSEL 11111111111111 IIIIiIII 111111111111111 NO FEE
II I I 1111111111111
C~ 00497762200600653580090094
09/28/2006 09:08:14 AM
D-M37 Cntal Stn=4 TM
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 Dale Woods to Use the * ORDER NO. 2006-116
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, Dale Leroy Woods Revocable Trust made a timely demand for compensation under
Measure 37 for a reduction in value to his property at 65365 Tweed Rd., 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;
On May 4, 2006, Dale Woods Revocable Trust filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 65365 Tweed Rd., Bend, 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 August 2, 1965 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 Dale Leroy Woods Revocable Trust is
the present owner, which for Measure 37 purposes is being treated the same as the creator of the
Trust, Dale Woods, and thus owner of the subject property described in Exhibit "B," having
acquired an interest in it and continuously owned it since August 2, 1965. The County finds and
concludes as set forth below.
PAGE i OF 3- ORDER No. 2006-116 (09/25/06)
The Board concurs with the Administrator's report that the current land use regulations,
Multiple Use Agricultural (MUA-10), if applied to the subject property, would not permit a
partition or subdivision for residential development on the 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 or
subdivision and residential development 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 have
reduced the value of the subject property.
The Board concurs with the Administrator's report 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 partition or subdivide and build additional
dwellings on 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 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 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 August 2, 1965. 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(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 Dale Woods.
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. 2006-116 (09/25/06)
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,
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,~~s~day of September, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTa COUNTY, OREGON
,ee
R.
ATTEST: BEV yLARNO, VICE
Recording Secretary C AEL M. ALY,
SIONER
PACE 3 of 3- ORDER No. 2006-116 (09/25/06)
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 - Dale Woods (Claimant)
65365 Tweed Rd., Bend, 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 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 May 4, 2006, when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted a sufficient demand form.
The property is about 15 acres. The current zoning is MUA-10. The Claimant's desired use is a residential
development of three to five parcels and Claimant alleges a reduction in value of approximately $500,000
Page 1 of 5 - Exhibit A - Order No. 2006-116
due to the inability to develop the property as desired. The following is an analysis of the evidence in the
record on the elements of this Measure 37 claim.
Current Owner - Dale Leroy Woods Revocable Trust
The property was initially acquired by Dale Woods by Warranty Deed on August 2, 1965. The property
which is the subject of this claim was transferred by Claimant into a revocable trust on May 14, 2003. The
County has previously taken the position that the creators of a revocable trust have the authority to
dissolve the trust and retake title to trust property and that for Measure 37 purposes are treated as the
owners of such property. Based upon the foregoing, it appears that Claimant has had an interest in the
subject property in since 1965.
Owner Date of Acquisition - August 2, 1965.
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 Dale Woods acquired an interest is the date of the deed submitted with the claim,
August 2, 1965. Thus Claimant has "an interest" for Measure 37 purposes and such interest first arose in
1965.
Restrictive Regulation - Multiple Use Agricultural MUA-10.
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 Claimant has identified the County's Multiple Use Agricultural MUA-10 zoning as restricting
Claimant's ability to develop the property as a residential subdivision. There was no zoning in effect at the
time the Claimant acquired the property. While the county would need to evaluate any land use
Page 2 of 5 - Exhibit A - Order No. 2006-116
application that may be submitted pursuant to regulations in effect at the time Claimants first acquired an
interest in the property, based upon the absence of zoning regulations in effect in 1965, development of
the property for a residential subdivision may 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 Claimant has applied for a residential subdivision on the property
resulting in the current zoning being enforced on the subject property. Claimant has not demonstrated
that submitting an application today for a residential subdivision would be futile.. However, this report
confirms that such an application for such a development 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 - $500,000 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 a County's land use regulation
that was first adopted or applied after the claimant first acquired the property.
• Claimant has submitted no evidence on which the County can conclude that domestic water,
sanitary sewer or access are available to the subject property for the desired use.
• Claimants have submitted no evidence of reduction in value based upon application of County
land use regulations.
Claimant's alleged reduction in value appears to be based upon the assumption that a buildable lot for
residential use 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 County and the
State, could develop the property for a residential subdivision, 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
Claimant may be unreliable, if the resulting dwelling is 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 Claimant could have obtained approval of a residential subdivision on the
property on the date he first acquired an interest in the property, but not under zoning restrictions adopted
after Claimant's acquisition date, and the resulting lots are fully marketable and useable by future owners,
Page 3 of 5 - Exhibit A - Order No. 2006-116
then the value of Claimant's 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, Dale Woods has continuously owned an interest in the property since 1965. 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 August
2, 1965, the date when Claimant 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 a residential subdivision 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 a development
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
August 2, 1965, to allow the owner to use the property in a manner permitted at the time the owner
Page 4 of 5 - Exhibit A - Order No. 2006-116
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 Claimant acquired the property. This waiver is not a
development permit. By granting a waiver, the County does not commit itself to approving Claimant's
residential subdivision.
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. 2006-116
EXHIBIT B
The East One-half of the Norxt:west (~:aGrter of tt:e Southeast
Quarter (EIN*Sfi,X) in Section 'T'wentywtwO (22), Township
Sixteen (16) South, Range Eleven (11), 1.. ti. &j.., except the
South 330 feet tthereo.#'; subject to an easement for ingress
and egress and roaeway purposes along the South 30 Feet of
the above described parcel of land, which said easement is
appurtenant to the westerly adjoining parcel of land described
as the West One-half of the Nortbwest Quarter of the Southeast
Ottarter ('WJKWJSEJ) excepting therefrom the South 330 feet, all
in Section Twenty-two (22), Tow-aship Sixteen (16) South, Range
Eleven (11), .y,',«1., Deschutes Countys, Oregon, which said
adjoining parcel is presently owned by Markin L. and Cora Belle
Neustel.
Order No. 2006-116; Woods