2006-961-Order No. 2006-113 Recorded 9/29/2006DESCHUTES
NANCY
COUNTY CLERKDS Vd ~U06.96i
COMMISSIONERS' JOURNAL 09/29/2006 11;18;39 AM
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2006-861
Do not remove this page from original document.
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]
previously recorded in Book
or as Fee Number
and Page ,
DESCHUTES COUNTY OFFICIAL RECORDS nn
REVIE D NANCY BLANKENSHIP, COUNTY CLERK
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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 Randall and Christina
Reid to Use the Subject Property as Allowed
When They Acquired the Property
* ORDER NO. 2006-113
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, Randall and Christina Reid made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 21598 Morrill Rd., 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;
1. On April 26, 2006, Randall and Christina Reid filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 21598 Morrill 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 March 9, 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 Randall and Christina Reid are present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since March 9, 1989. The County finds and concludes as set forth below.
5. The Board concurs with the Administrator's report that the current land use regulations,
Exclusive Farm Use, if applied to the subject property, would not permit a partition and an
PAGE 1 of 3- ORDER No. 2006-113 (09/25/06)
additional farm dwelling 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 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 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 and build an additional farm dwelling 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 March 9, 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 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 Randall and Christina Reid.
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
PACE 2 of 3- ORDER No. 2006-113 (09/25/06)
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. 11 C41111
DATED this a day of September, 2006.
ATTEST:
&M,U~
Recording Secretary
PAGE 3 of 3- ORDER No. 2006-113 (09/25/06)
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
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 - Randall and Christina Reid (Claimant)
21598 Morrill 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 April 26, 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 73 acres. The current zoning is Exclusive Farm Use, EFU with a farm
use minimum lot size. The Claimants' desired use is a partition and a farm dwelling on the new lot.
Claimants allege a reduction in value of approximately $200,000 due to the inability to develop the
Page 1 of 5 - Exhibit A - Order No. 2006-113
property as desired. The following is an analysis of the evidence in the record on the elements of this
Measure 37 claim.
Current Owner - Randall and Christina Reid
The property was initially acquired by Randall and Christina Reid by Special Warranty Deed on March 9,
1989. A title report submitted with the claim indicates that they continue to own the subject property.
Based upon the foregoing, it appears that Claimants have had an interest in the subject property since
1989..
Owner Date of Acquisition - March 9, 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.
The first date that Randall and Christina Reid acquired an interest is the date of the Special Warranty
deed submitted with the claim, March 9, 1989. Thus Claimants have "an interest" for Measure 37
purposes and such interest first arose in 1989.
Restrictive Regulation - Exclusive Farm Use - EFU-20 and EFU-40 - with 20 and 40 acre minimum lot
sizes.
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 EFU-20 and EFU-40 zoning as restricting Claimants' ability to
partition the property and build a farm dwelling on the new lot to be created. The County's 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-acre minimum lot size on tax lot 400 and a 40-acre
Page 2 of 5 - Exhibit A - Order No. 2006-113
minimum lot size on tax lot 12300. Subsequently, the State adopted income standards for farm-related
dwellings in 1993 and the County later did the same. 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 1989, a partition of the property and
construction of a farm dwelling on the resulting additional lot 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 Claimants have applied for a partition on the property resulting in the
current zoning being enforced on the subject property. Claimants have applied for approval to build a
farm dwelling, which was granted under County file no. CU-89-113. Claimants have not demonstrated
that submitting applications today for a partition and building permit for a farm dwelling 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 - $200,000 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 not demonstrated that domestic water or sanitary sewer would be available, but it
is reasonable to conclude based upon the size of the acreage and the desired additional use that
an individual well and septic system would be feasible.
• Claimants have not demonstrated how access would be obtained, but again, the additional lot, if
allowed could obtain access from Morrill Rd..
• 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
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 farm 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
Page 3 of 5 - Exhibit A - Order No. 2006-113
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 partition and an additional farm
dwelling 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, Randall and Christina Reid have continuously owned an interest in the property since 1989.
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 March 9,
1989, the date when Claimants first acquired an interest in the property. There is evidence in the record
that an additional lot for a farm dwelling would be feasible for available domestic water, sanitary waste
Page 4 of 5 - Exhibit A - Order No. 2006-113
disposal and road access. Feasibility of the desired use of the desired dwelling 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
March 9, 1989, 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'
partition and farm dwelling on the resulting lot.
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. 2006-113
EXHIBIT B
Beginning at the Northeast comer of Section 26, TOWNSHIP 16 SOUTH, RANGE 12 EAST OF THE
WILLAMETTE MERIDIAN, Deschutes County, Oregon; thence South 0° 26' 14" East along the East line of
said Section 26, 926.98 feet to the TRUE POINT OF BEGINNING; thence continuing South 01, 2V 14" east
along said East Line of Section 26, 402.67 feet to the Southeast corner of the Northeast Quarter of the
Northeast Quarter of said Section 26; thence North 890 31' 59' East, along the South line of the
Northwest Quarter of the Northwest Quarter, Section 25, Township 16 South, Range 12 East of the
Willamette Meridian, Deschutes County, Oregon, 1326.24 feet to the Southeast corner of the Northwest
Quarter of the Northwest quarter of said Section 25; thence South 0A 27' 20" East, along the East line of
the Southwest Quarter of the Northwest quarter of said Section 25, 1326,15 feet to the Southeast corner
of the Southwest Quarter of the Northwest Quarter of said Section 25; hence South 890 22' 55" West;
along the South line: ofthc Southwest Quarter of the Northwest Quarter of said Section 25,1327;24 feet
to the Southeast corner of the Northeast Quarter of Section 26; thence South 09 38' 13" East, along the
East line of the Southeast Quarter of said Section 26, 381.63 feet to the Northerly right-of-way line of
C.W. Horner Road; thence South 820 07' 30" West, along said right-of-way line C.W. Homer Road,
932.22 feet to a point; thence North 270 5142" East, 595.73 feet to a point; thence North 21° 41' 57"
East, 464.28 feet to a point; thence South 760 23'44' West, 450.00 feet to a point; thence South 730 33'
44" West 517.91 feet to a point; thence North 270 3tf' 44" East, 1280.08 feet to the South line of the
Northeast Quarter of the Northeast Quarter of Section 26, thence South 890 S2' 22" East, along said
South line, 31.22 feet to a point; thence North 150 44' 47" East, 251.81 feet to a point; thence forth 290
06' 08" East, 60.00 feet to a point; theme North 76° 10' 02" East, 437,67 feet to a point; thence North
890 38' 38" East, 245.67 feet to the East line of said Section 26, and the TRUE POINT OF BEGINNING;
EXCEPTING THEREFROM the following described property;
Parcel 1: A parcel of land located In the South Half of the North Half (S1/2 N1/2) of section 26, Township
16 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon, being more particulary
described as follows:
Beginning at a point which is 1329,65 feet South 00° 26 14" East to a 5/8" iron rod; 1326.24 feet North
890 31' 59" East to a 518 iron rod 1326.15 feet South 000 27' 20" East to a 5/8" iron rod; 1327.24 feet
South 890 22' 55" West to a 5/8" iron rod; 381.63 feet South 000 38' 13" East to a 5/8' iron rod on the
Northerly right of way of Deschutes County Road No. 195; 932.22 feet along said right of way south 82"
07' 30" West to a /8" iron rod; leaving said Northerly right of way 595.73 feet Forth 270 54'42" East to
a 5/8" iron rod; 464.28 feet North 210 41' 57" East to a 5/6" iron rod; 360.00 feet South 760 231441,
West from the Northeast corner of said Section 361# said point of beginning incorrectly described on Page
2 of Exhibit "A" of Deschutes County Records Book 39, Page 825 as South 110 29137" West - 2255.98
feet from the Northeast comer of the aforesaid Section 26; them South 760 33' 44" West 90.00 feet to
a 518" iron rod; thence South 730 33' 44" West 517.91 feet to a 5/8" iron rod; thence North 270 3P 44"
East 434.62 feet to a 518" iron rod; thence North 270 30' 44" fast 434.62 feet to a /8" iron rod; thence
South 600 23' 59' East, 440.88 feet to the Point of Begining,
Parcel 2: A parcel of land located in Section 26, Township 16 South, Range 12 East of the Willamette
Meridian, Deschutes County, Oregon being more particularly described as follows:
Beginning at a point which is 1329.65 feet South 000 26' 14" East to a 5/8" iron rod; 1326.24 feet North
89° 1' 59" East to a 5/8" iron rod, 1326.15 feet South 00° 27' 20" East to a 5/8" iron rod; 1327.24 feet
Sotuh 890 22'55" West from the northeast corner of said Section 26; thence South 000 38' 13" East
381.63 feet to a 518" iron rod on the Northerly right of way Deschutes County Road No. 195; thence
following said right of way South 820 07' 30" West 932.22 feet to a 5/8" iron rod; thence leaving said
right of way North 270 54' 42" East 595.73 feet; thence South 880 2$" 13" East 640.55 feet to a 518" iron
rod and the point of beginning.
Order No. 2006-113; Reid