2006-1007-Order No. 2006-157 Recorded 11/8/2006COUNTY OFFICIAL P?
NANCYUBLANKENSHIP, COUNTY CLERKDS vo 2006-1007
COMMISSIONERS' JOURNAL
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2006-1007
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i DESCHUTES C
z REVIE D
L GAL COUNSEL
UNIT OFFICIAL
NANCY BLANKENSNIP, COUNTY CLERKDS 2006-7085
11111111111111111111111111111111111111111111111 NO FEE
00307022200600740830090099
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D
-M37 Cnto1 Stn=25 CE
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 Olaf and Jannis Bolken * ORDER NO. 2006-157
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, Olaf and Jannis Bolken made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 9721 N. Hwy 97, Terrebonne, 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 June 9, 2006, Olaf and Jannis Bolken filed a Measure 37 claim with the Community
Development Department.
The property is located at 9721 N.Hwy 97, Terrebonne, 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 June 11, 1971 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 Olaf and Jannis Bolken are the present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since June 11, 1971. The County finds and concludes as set forth below.
The Board concurs with the Administrator's report that the current land use regulations, EFUTE
and certain subdivision regulations, if applied to the subject property, would not permit a
PACE 1 of 3- ORDER No. 2006-157 (11/06/06)
subdivision 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 subdivision 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.
The Board concurs with the Administrator's report that there is no evidence 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 subdivision
application. Despite the lack of a precise amount of reduction in value, the loss of the ability to
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 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 June 11, 1971. 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 Olaf and Jannis Bolken.
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. 2006-157 (11/06/06)
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 day of November, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHU COUNTY, OREGON
D NNIS R. LUKE, CH IR
ATTEST:
BEV CLARNO, VICE CHAIR
Recording Secretary
AAE~M. DALY, MMISSIONER
PAGE 3 OF 3- ORDER No. 2006-157 (11/06/06)
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 - Olaf and Jannis Bolken (Claimant)
9721 N. Hwy 97, Terrebonne, OR
Introduction
DATE: November 1, 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 9, 2006, when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. The property consists of approximately 32 acres. The current zoning is EFU-TE. The
Claimants' desired use is a subdivision and Claimants allege a reduction in value of approximately
Page 1 of 5 - Exhibit A - Order No. 2006-157
$1,180,600 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 - Olaf and Jannis Bolken are owners of the property comprising this claim: 14-13-09, Tax
lot 1400 and located at 9721 N. Hwy 97, Terrebonne. Claimants submitted a narrative statement
explaining that they first acquired the subject property on June 11, 1971 under an unrecorded land sale
contract. A fulfillment deed to the Claimants was recorded in 1977. They have continuously owned the
property until the present.
Owner Date of Acquisition - June 11, 1971
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 Olaf and Jannis Bolken obtained an interest in
the property is June 11, 1971. Originally, they submitted a copy of the deed they obtained to the property,
dated January 4, 1977. However, they later submitted a title report, dated June 11, 1971, which verifies
their statement that they had originally acquired the property under an unrecorded land sale contract.
Restrictive Regulation - EFU-TE.
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 EFU-TE, as reducing the value of their property by inhibiting development of a subdivision.
These land use regulations were adopted after the acquisition date of 1971.
Page 2 of 5 - Exhibit A - Order No. 2006-157
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 1971, that a subdivision of the property 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. Claimants have not have applied for a subdivision 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 subdivision 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 - $1,180,600 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 no evidence that domestic water is available for the desired
subdivision.
• Claimants have submitted no evidence that sanitary service is feasible for the desired subdivision
• Claimants have submitted a report from a "broker" which attempts to show the diminution in value
based upon limitations on their subdivision of the property.
Claimants' alleged reduction in value appears to be based upon the assumption that lots within a
subdivision 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 subdivide 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 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 subdivision 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
Page 3 of 5 - Exhibit A - Order No. 2006-157
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, Olaf and Jannis Bolken have continuously owned an interest in the property since 1971. 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 June 11,
1971, the date when Claimants first acquired an interest in the property. While there is no 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, the Claimants would need to demonstrate the availability
of such utilities as part of any subdivision application they submit.
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
June 11, 1971, 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 subdivision.
Page 4 of 5 - Exhibit A - Order No. 2006-157
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. 2006-157
The Southeast Quarter of the Southwest Quarter (SEl/4 SWl/4) of Section 9, Township
14 South, Range 13 East of the Willamette Meridian, Deschutes County, Oregon.
EXCEPTING THEREFROM: Commencing at the Southeast corner of the E1/2 SW1/4 of
Section 9; thence Westerly along the South line of said Section 9, a distance of 790 feet;
thence Northerly on a line parallel to the East line of said Section 9, 416.00 feet; thence
Easterly on a line parallel to the South line of said Section 9, a distance of 790 feet to the
East edge of said Section 9; thence Southerly, 416 feet along the East edge of said
Section 9 to the point of beginning.
ALSO EXCEPTING THEREFROM that portion lying within the right of way of the
Dalles-California Highway.
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