2006-1002-Order No. 2006-148 Recorded 11/3/2006COUNTY OFFICIAL P?
NANCYUBLANKENSHIP, COUNTY CLERKDS ICJ 2006-1002
COMMISSIONERS' JOURNAL
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2006-1002
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COUNTY OFFICIAL
RE VI NANCYUBLANKENSHIP, COUNTY CLERKDS 2006.73093
4LGAL COUNSEL 1111111111111111111111111111111111111111111111111 NO FEE
00603929200600730930090092
11/02/2006 02;12;51 PM
D-M37 Cnt=3 Stn_25 BN
This is a no foe document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Dennis and Virginia * ORDER NO. 2006-148
Sporalsky 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, Dennis and Virginia Sporalsky made a timely demand for compensation under Measure 37
for a reduction in value to their property at 20070 Chaney 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 June 1, 2006, Dennis and Virginia Sporalsky filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 20070 Chaney 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 October 13, 1970 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 Dennis and Virginia Sporalsky are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since October 13, 1970. The County finds and concludes as set forth
below.
5. The Board concurs with the Administrator's report that the current land use regulations, UAR-
10 and certain subdivision regulations, if applied to the subject property, would not permit a
PAGE 1 of 3- ORDER No. 2006-148 (10/30/06)
partition on the subject property. The current regulations are land use regulations which are not
exempt from Measure 37 claims.
6. The Board concurs with the Administrator's report that an application for a partition for
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
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, sanitary sewer and
access for the desired use on the subject property are feasible. However, these matters can and
would be evaluated in connection with a partition application. Despite the lack of a precise
amount of reduction in value, the loss of the ability to partition 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 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 October 13, 1970. 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 Dennis and Virginia Sporalsky.
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
PAGE 2 of 3- ORDER No. 2006-148 (10/30/06)
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.
DATED this ~I 'day of October, 2006.
ATTEST:
' 7 . ZA&6k1-
Re
cording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUT OUNTY, OREGON
D IS R. LUKE, CHA
BEV LARNO, VICE CHAIR
MICHAEL M. DALY, COMMISSIONER
PAGE 3 of 3- ORDER No. 2006-148 (10/30/06)
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 - Dennis and Virginia Sporalsky (Claimant)
20070 Chaney Rd., Bend. OR
Introduction
DATE: October 26, 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 June 1, 2006, when
Measure 37 was in lawful effect. Claimants have not paid the filing fee but have submitted the County's
official demand form. The property consists of one lot with approximately 2.7 acres. The current zoning is
UAR-10. The Claimants' desired use is a partition and Claimants allege a reduction in value of
Page 1 of 5 - Exhibit A - Order No. 2006-148
approximately $173,500 due to the inability to divide 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 - Dennis and Virginia Sporalsky are owners of the property comprising this claim: 17-12-
17C, Tax lot 704 and located at 20070 Chaney Rd., Bend. Claimants submitted a narrative statement
explaining that they first acquired the subject property in 1970 under an unrecorded land sale contract. A
fulfillment deed to the Claimants was recorded in 1979. They have continuously owned the property until
the present.
Owner Date of Acquisition - October 13, 1970
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 for which there is documentation showing Dennis and Virginia Sporalsky obtained an
interest in the property is October 13, 1970.
Restrictive Regulation - UAR-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 Claimants have
identified the UAR-10 zoning, and several specific provisions of the county's subdivision ordinance as
reducing the value of their property by inhibiting development of a partition. All were adopted after the
acquisition date of 1970.
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, it appears that in
theory, based upon zoning in effect in 1970, that a partition of the property would have been allowed.
Page 2 of 5 - Exhibit A - Order No. 2006-148
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. Claimants have not have applied for a partition of the property resulting in the current zoning being
enforced on the subject property. Claimants have 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 partition would violate the current zoning and subdivision requirements and be denied. Therefore,
the intent of DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $173,500 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 the County's land use regulation.
• Claimants have submitted evidence that domestic water is available for the desired partition.
• Claimants have submitted evidence that sanitary service is feasible for the desired partition, as it
was determined with respect to the second dwelling that was recently placed on the property
• Claimants have submitted two appraisals in an attempt to show the diminution in value based
upon limitations on their use of the second dwelling and inability to partition the property.
Claimants' alleged reduction in value appears to be based upon the assumption that an additional lot
created by partition of the property is or would be fully marketable and useable by others. 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 partition the property, 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 lot 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 of 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.
Page 3 of 5 - Exhibit A - Order No. 2006-148
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, Dennis and Virginia Sporalsky have continuously owned an interest in the property since
1970. 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 October
13, 1970, 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.
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
October 13, 1970, to allow the Claimants to use the property in a manner permitted at the time they
acquired the property. This waiver is not a development permit. By granting a waiver, the County does not
commit itself to approving Claimants' desired partition.
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
Page 4 of 5 - Exhibit A - Order No. 2006-148
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. 2006-148
EXHIBIT B
A ttact of land a tUated In the `~oz tltw E,*t Quarter ci`
the Southwest Quarter (uW'114 Staf4i Of se';:tic:, acvEn»
teen (17), Township :,Cvcnteen ()77 ?t n~_,)c
(12) East of the Willaxette MQricii8n, ;>L•~i~ucs::: Cvun-}',
Oregon,• AND ALSO a portion cf tract, £lc~:~ a ;'ii vtasl
't'welve (12, GLEM VISTA, Desdtutes Cav',. v orcLjoll,
deacribed as follows: Commencing of thZ 14r, two5t
comer of tract 11 GLEN VISTA; thence r: nn n:
along the Westerly boundary of said tract
VISTA a distance of 200 feet to the tx'us ~oiat s~° hc-
ginningi 010ace West a distance o 1€0 (Cet to a Point;
thence South a distance of 445 felt more or less, tL s
point on the South line of. Said NWJ/4 SWI/4 of Laid
Section 17; thence Sawter?}' alOnc riid South pine of
Said NW114 S;41/4 a ta'$3tan.e of 3i8,25 feet rorc or less
to w point which Is North i9° 30, 15" West 4CO ftaet fray,
the'SOUtheast cy ner of tract, 12 GLC,1 VISTA; thonCc thorns
-.1$° 00' 15* Rest a dictanco of )1i.2t feet, r.orc or =esrt,
`tu,a point on th'3 North line of Zzoet 12 GLEN VISTA; the.,iCe
Ncsrth 380 24' 21" Last 165 feet, more or less, ec) a point
whI'Qh' Is 200 feet Southerly frsm, the North line of Tract
CLEN'VXS A: thence Westerly n.long a line ; 00 feet South Ok
rind 'parallel wirh thn Nlorth line of said Tr,),:t 11 a distance
at:229;feet, more or less to the point of beginning. r.X-
CEPTI#G therefrom the Swutherly 15 feat rwserved for.`roan
° • Att~paaea..
Order No. 2006-(y$; Sporalsky _
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