2006-960-Order No. 2006-115 Recorded 9/29/2006ANCY
NUBLANKENSHIP, COUNTY CLERK DS yJ ~Y0~-960
COMMISSIONERS' JOURNAL
„1„„„ ,.1„1.,1 I,,,.,, 11 , all 09/19/1006 11:18:19 AM
2006-960
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Deschutes County Clerk
Certificate Page
If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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REVIE D DESCHUTES COUNTY OFFICIAL RECORDS 1006'65559
NANCY BLANKENSHIP, COUNTY CLERK
LEGAL COUNSEL 11111111111111111111111111111111111111111111111111111 NO FEE
00497763200600655590090091 09/28/2006 09:08:14 AM
D-M37 Cntal Stn=4 TM
This is a nofss document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Thomas and Sally Foster * ORDER NO. 2006-115
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, Thomas and Sally Foster made a timely demand for compensation under Measure 37 for a
reduction in value to her property at 64635 Old Bend Redmond Hwy., 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;
On May 3, 2006, Thomas and Sally Foster filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 64635 Old Bend Redmond Hwy., 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 May 16, 1974 as to Tax Lots 309 and 310 and
November 16, 1976 as to Tax Lot 313 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 Thomas and Sally Foster are present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since May 16, 1974 as to Tax Lot 309 and 310 and November 3, 1976 as
to Tax Lot 313. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2006-115 (09/25/06)
The Board concurs with the Administrator's report that the current land use regulations,
Exclusive Farm Use, Tumalo/Redmond/Bend subzone„ if applied to the subject property,
would not permit a residential subdivision 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 residential
subdivision 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.
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 develop 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 May 16, 1974 as to Tax Lots 309 and 310 and
November 3, 1976 as to Tax Lot 313. 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 Thomas and Sally Foster.
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).
PACE 2 of 3- ORDER No. 2006-115 (09/25/06)
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,
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. day of September, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCH~JES COUNTY, OREGON
R. LUKE,
ATTEST:
(51~ (6~
Recording Secretary
PAGE 3 of 3- ORDER No. 2006-115 (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 - Thomas and Sally Foster (Claimant)
64635 Old Bend Redmond Hwy, 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 3, 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 25 acres. The current zoning is Exclusive Farm Use, EFU - TRB
Tumalo/Redmond/Bend subzone with a farm use minimum lot size. The Claimants' desired use is a
residential subdivision and Claimants allege a reduction in value of approximately $450,000 due to the
Page 1 of 5 - Exhibit A - Order No. 2006-115
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 - Thomas and Sally Foster
The property was initially acquired by Thomas and Sally Foster in two separate transactions. First, on
May 16, 1974 they acquired what is identified in the claims as Tax Lots 309 and 310. They acquired
additional property, Tax Lot 313 on November 3, 1976. The property which is the subject of this claim was
transferred by Claimants into a revocable trust on April 28, 1995. 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 Claimants have had an interest in the subject property since 1974, as to Tax
Lots 309 and 310 and 1976 as to Tax Lot 313..
Owner Date of Acquisition - May 16, 1974, November 3, 1976.
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 Thomas and Sally Foster acquired an interest is the date of the two deeds submitted
with the claim, May 16, 1974 and November 3, 1976. Thus Claimant has "an interest" for Measure 37
purposes and such interest first arose in 1974 and 1976.
Restrictive Regulation - Exclusive Farm Use - EFU - TRB Tumalo/Redmond/Bend subzone with 23
irrigated 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.
Page 2 of 5 - Exhibit A - Order No. 2006-115
The Claimants have identified the County's EFU-TRB zoning, Tumalo/Redmond/Bend subzone, as
restricting Claimants' ability to develop the property as a residential subdivision. Pursuant to PL-5, the
County's original zoning ordinance, adopted in 1971, these properties could have been divided into lots
as small as five acres under the A-1 zone. Subsequently, a new County zoning ordinance, PL-15, was
adopted in 1979, together with associated zoning maps, which designated the subject property as
exclusive farm use with a 20-acres minimum lot size. While the county would need to 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, based upon zoning in effect in 1974 and 1976, development of the property for
a residential subdivision 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 residential subdivision on the property
resulting in the current zoning being enforced on the subject property. Claimants have 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 - $450,000 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.
• Claimants have asserted that domestic water by means of individual wells is available for the
desired subdivision.
• Claimants have also asserted that individual septic systems would be feasible for each new lot for
siting residential dwellings.
• Claimants have asserted that access could be obtained from Old Bend Redmond Hwy.
• Claimants have submitted no evidence of reduction in value based upon application of County
land use regulations.
Claimants' alleged reduction in value appears to be based upon the assumption that a buildable lot for
nonfarm 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
Page 3 of 5 - Exhibit A - Order No. 2006-115
present property owner. Assuming an owner, having obtained the necessary "waivers" from the County
and the State, could develop the property for a nonfarm dwelling, 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 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 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 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, Thomas and Sally Foster have continuously owned an interest in Tax Lots 309 and 310
since 1974 and in Tax Lot 313 since 1976. 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
Page 4 of 5 - Exhibit A - Order No. 2006-115
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 16,
1974 as to Tax Lots 309 and 310 and November 3, 1976 as to Tax Lot 313, the dates when Claimants
first acquired interests in the properties. 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 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
May 16, 1974 as to Tax Lots 309 and 310 and November 3, 1976 as to Tax Lot 313, 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
Claimant 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. 2006-115
TAX LOTS 309 AND 310 PURCHASED ON MAY 16. 1974
EXHIBIT B
ow rs-0 "A
t F s~ iii t?e. 7
TAX TOT 313 PURCHASED ON NOVFMBER 3. 1976
A tract of laved cwtainin I.i7 Betas lying to the
3M1/49 Section 32, T. 16 S.t R. 12 1.0 W.H.9
Bascbutes County Oredescribed as follmm:
emmainf att a i/0" isoa sod in= the North-
west corner of the 3tl/4s 10114 o said Section
$2; thence 3 00' 14' 34" N sloe the north-soutb
center line of said section 32 71.50 feet to the
point of beS aS marW by a 5/3" iron rod, said
pasrit bola the 16rthnst corner of that tract of
land described in look 2069 Page 346, Deschutes
County Deed Records:
'thence is 730 40' S4" a 170.39 feet, thence 14 S410
041 02" B 190#27 feet: tMmee s 494 391 43" B
112-86 feet- thence S $0' 449 04" B 202.60 feet;
thsnee 5 $99 35. 56" B 123.76 feet to the Werth
line of the oeorty described Ilk Book 306, e
3460 ~Chlttts linty be" Recot*- t~ce S~•
$5 17" x slogg the said north 11" 4!09.69 feet to
the point of biginninS. .
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