2006-1014-Order No. 2006-156 Recorded 11/16/2006COUNTY OFFICIAL P?
NANCYUBLANKENSHIP, COUNTY CLERKDS VV 2006.1014
COMMISSIONERS' JOURNAL 11/16/2006 11:19:01 AM
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2006-1014
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LEGAL C LTNSEL
COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS 2006.75456
NO FEE
00S084D8~00d007'3-4~800~0094--~~D-M37 Cnl:1 Stn:23 PG 11/14/2006 04:29;50 PM
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Stephen and Tina Abbey * ORDER NO. 2006-156
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, Stephen and Tina Abbey made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 3515 NW Ice Av., 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, Stephen and Tina Abbey filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 3515 NW Ice Av., 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 July 24, 1987 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 Stephen and Tina Abbey are the present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since July 24, 1987. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2006-15QF(11/06/06)
5. The Board concurs with the Administrator's report that the current land use regulations,
EFUTE, if applied to the subject property, would not permit a farm-related dwelling on TL 100.
The current regulations are land use regulations which are not exempt from Measure 37 claims.
The Board concurs with the Administrator's report that an application for a farm-related
dwelling 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 development permit
application. Despite the lack of a precise amount of reduction in value, the loss of the ability to
build an additional 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 July 24, 1987. 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 Stephen and Tina Abbey.
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.2006-1541 r(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
ATTEST:
V'day of November, 2006.
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCH TES COUNTY, OREGON
DENNIS R. LUKE, HAIR
- 4dte-t
BEV CLARNO, VICE CHAIR
.4. 1
4zse-~~z - 4~1
M AE DALY OMMISSIONER
PAGE 3 OF 3- ORDER NO. 2006-15&(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 - Stephen and Tina Abbey (Claimant)
3525 NW Ice Av.. 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 70 acres. The current zoning is EFU-TE. The
Claimants' desired use is a building permit for a farm dwelling on one of two adjacent lots owned by
Claimants. Claimants allege a reduction in value of approximately $350,000 due to the inability to obtain a
Page 1 of 5 - Exhibit A - Order No. 2006-1510
building permit for the farm-related dwelling as desired. The following is an analysis of the evidence in the
record on the elements of this Measure 37 claim.
Current Owner - Stephen and Tina Abbey are owners of the property comprising this claim: 14-13-06D,
Tax lots 100 and 200, located at 3515 NW Ice Av., Terrebonne. Claimants submitted a copy of a
memorandum of contract, dated July 24, 1987 to show when they first obtainined an interest in the
property. Originally this property consisted of approximately 160 acres, but because of partial disposal of
portions in the intervening time, they currently own about 73 acres, which consists of a 3.56-acre nonfarm
dwelling site (TL 200) and a second 70-acre farm parcel (TL 100). County records indicate they continue
to own both tax lots 100 and 200.
Owner Date of Acquisition - July 24, 1987
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 Stephen and Tina Abbey first obtained a property
interest in the subject property on July 24, 1987.
Restrictive Requlation - 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 preventing them from obtaining a farm-
related dwelling on the 70-acre farm parcel.
In order to understand the claim it is necessary to explain the background on how these parcels were
established. The original 160 acres was the subject of a series of three partitions (See: Partition Plat nos.
Page 2 of 5 - Exhibit A - Order No. 2006-15t#
1994-27, 1999-56 and 1999-57) with tax lots 100 and 200 resulting from Partition Plat no. 1999-56. At
the time of acquisition, Claimants assert the parent parcel for tax lots 100 and 200 could have been
divided into two 40-acre farm parcels, with each parcel able to qualify for a farm-related dwelling. Due to
changes in state and county regulations regarding minimum lot sizes and farm-related dwelling approval
standards after acquisition, Claimants modified their desired development of the property to create the
existing farm parcel (tax lot 100) at 68.96 acres and the non-farm dwelling parcel (tax lot 200) at 3.56
acres. Claimants argue that, since tax lot 100 cannot meet the current requirements for farm-related
dwellings, it is now unbuildable and, thus, the reduction in property value.
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 1987, that a separate farm dwelling on TL 100 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. As described above, Claimants have applied for a series of partitions on their property. Claimants
have not have applied for a building permit to site a farm dwelling on the subject property resulting in the
current zoning being enforced on the subject property. Claimants have not demonstrated that submitting
an application for such a permit would be futile. However, this Report confirms that such an application for
the desired farm-related dwelling would violate the current regulations and be denied. Therefore, the
intent of DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $350,000 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 the County's land use regulation.
Claimants have submitted residential listing reports of what they believe to be similar property showing
the value of 40-acre parcels on which a residence can be sited.
Claimants' alleged reduction in value appears to be based upon the assumption that the new building lot
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 develop the
Page 3 of 5 - Exhibit A - Order No. 2006-156
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 farm dwelling on TL 100 on the
date they first acquired an interest in the property, but not under zoning restrictions adopted after
Claimants' acquisition date, and the resulting building lot is 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.
Since Claimants may have encountered certain adjustments in the tax assessment (farm deferral) status
of their property based upon the creation of a nonfarm dwelling on TL 200, this report takes no position on
what if any effect there may be to establishing a farm dwelling parcel out of TL 100.
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, Stephen and Tina Abbey have continuously owned an interest in the property since 1987. 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. 2006-1540
The present owners of the property have 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 July 24,
1987, the date when Claimants first acquired an interest in the property. While there is some 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 development permit 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
July 24, 1987, 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 development permit.
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. 2006-15&
G .-s
The Southeast Quarter (SE 1/4) of Section Six (6), Township Fourteen (14) South, Range
Thirteen (13) East of the Willamette Meridian, Deschutes County, Oregon.
EXCEPT that portion deeded to Deschutes County for road purposes along the West line
of said premises.
ALSO EXCEPT that portion lying within the right of way of a road on the South line of
said premises.
EXHIBIT B