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2006-1048-Order No. 2006-168 Recorded 12/8/2006NANCYUBLANKCOUNTY OFFICIAL ENSHIP, COUNTY CLERKS CJ X006.1046 COMMISSIONERS' JOURNAL looms ,In Elm 12/08/2006 04;18;30 PM 2006-1048 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 REVIE P COUNTY NANCYUBLANKENSHIP,F000NTY CLERKS 2006-80107 LEGAL COUNSEL 111111111111II IIIIIIIII 11111111111111111111111111111111 NO FEE 00533483200600801070080086 12/07/2006 01:12:21 PM D-M37 Cnto1 Stn=3 P6 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 Karen Leep to Use the * ORDER NO. 2006-168 Subject Property as Allowed When She 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, Karen Leep made a timely demand for compensation under Measure 37 for a reduction in value to their property at 7397 SW McVey Av, Redmond, Oregon due to regulations which took effect after she 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 27, 2006, Karen Leep filed a Measure 37 claim with the Community Development Department. 2. The property is located at 7397 SW McVey Av., Redmond, Oregon and is within Deschutes County. 3. The County Administrator has recommended that the rimrock setback and height regulations for the subject property that were not already in effect until after April 7, 1983 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 Karen Leep is the present owner of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since April 7, 1983. The County finds and concludes as set forth below. 5. The Board concurs with the Administrator's report that the current rimrock setback and height regulations, if applied to the subject property, would not permit a replacement dwelling on the PAGE 1 of 3- ORDER No. 2006-168 (12/04/06) subject property in the desired location. 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 replacement dwelling within the rimrock setback area on the subject property would be denied if the current regulations 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 a building permit have reduced the value of the subject property. The Board concurs with the Administrator's report that building a replacement dwelling on the property is feasible. However, these matters can and would be evaluated in connection with a permit application. Despite the lack of a precise amount of reduction in value, the loss of the ability to build replacement dwelling in the setback area on the subject property would be a substantial amount of reduction in fair market value if the regulations at the time Claimant acquired the property allowed such a use; 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. Claimant may apply for a use of the subject property consistent with the substantive land use regulations in effect at the time she 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 April 7, 1983. 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 Claimant's 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 Karen Leep. 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 TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE. PAGE 2 of 3- ORDER No. 2006-168 (12/04/06) 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 thisu" day of December, 2006. ATTEST: &RA4~ &kvL- Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON 4 &M V-0a 4 a CHAEL M. DALY, COM SSIONER PAGE 3 of 3- ORDER No. 2006-168 (12/04/06) BEV CUARNO, VICE CHAIR 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 - Karen Leep (Claimant) 7397 SW McVey Av., Redmond. OR Introduction DATE: December 4, 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 27, 2006, when Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official demand form. The property consists of one lot with approximately 5 acres in two tax lots which are separated by the Deschutes River. The current zoning is EFU-TRB. The Claimant's desired use is to build a replacement dwelling on the property within the rimrock area restricted by County land use regulations. Page 1 of 4 - Exhibit A - Order No. 2006-168 Claimant alleges a reduction in value of approximately $200,000 due to the inability to site a replacement dwelling within the restricted rimrock area as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Karen LeeP is the owner of the property comprising this claim: 16-12-02C, Tax lots 400 and 501 and located at 7397 McVey Av., Redmond. Claimant submitted a copy of a deed, dated April 7, 1983, showing herself as grantee. She is listed on County records as the owner and has owned the property continuously. Owner Date of Acquisition - April 7, 1983 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 Karen Leep obtained an interest in the property is April 7, 1983. Restrictive Regulation - Rimrock Setback and Height regulations. 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 Claimant has identified several specific provisions of the county's ordinance and alleged the same have reduced the value of her property by prohibiting her ability to build a replacement dwelling in a location that would take advantage of views of the Deschutes River below. In particular, Ord. No. 82-013 (enacted prior to Claimant's acquisition date) amended the definition of rimrock; Ord. No. 86-053 amends the definition of rimrock again (this is the current definition); Ord. No. 92-034 amends rimrock setbacks and setback exceptions (current standards). Additional regulations include the expansion of LM zoning and a 30-foot height restriction for such zoning. Except as noted, Page 2 of 4 - Exhibit A - Order No. 2006-168 these requirements were adopted after the acquisition date of 1983 and would have the effect of restricting the siting of a replacement dwelling away from the rimrock edge. While the county would need to evaluate any permit application that may be submitted pursuant to regulations in effect at the time Claimant first acquired an interest in the property, it appears that in theory, based upon regulations in effect in 1983, that a replacement dwelling could have been placed along the rimrock area. 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. Claimant has not have applied for a replacement dwelling in the restricted rimrock area resulting in the current zoning being enforced on the subject property. Claimant has demonstrated that submitting an application for such a land division would be futile. This Report confirms that such an application for the desired dwelling location would violate the current requirements 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 the County's land use regulation. • Claimant has asserted that based upon soils and topography that a replacement nonfarm dwelling would be approved. • Claimant's property is located along McVey Av., so access is not an issue. • Other public utilities are available to the property. • Claimant has submitted an appraisal, as well as opinions from real estate professionals in an attempt to show the diminution in value based upon limitations on the siting of a replacement dwelling on 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.Nemphasis added) Page 3 of 4 - Exhibit A - Order No. 2006-168 11(c) "Owner" is the present owner of the property, or any interest therein. " In this case, Karen Leep has continuously owned an interest in the property since 1983. A claimant who receives a waiver must use the current process to seek the needed permits based on the zoning in place at the time the current owner 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 April 7, 1983, the date when Claimant first acquired an interest in the property. There is evidence in the record that a replacement dwelling within the rimrock setback area on the subject property would be feasible. 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 April 7, 1983, to allow the Claimant to use the property in a manner permitted at the time she acquired the property. This waiver is not a development permit. By granting a waiver, the County does not commit itself to approving Claimant's desired 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 4 of 4 - Exhibit A - Order No. 2006-168 A portion of the Southwest Quarter (SW1/4) of Section Two (2), Township Sixteen (16) South, Range Twelve (12), East of the Willamette Meridian, Deschutes County, Oregon, more particularly described as follows: Beginning at the West Quarter corner of Section 2; thence South 89041'25" East, a distance of 126.29 feet; thence South 15016'09" East, a distance of 716.96 feet to the Northwesterly right of way line of Canyon Drive; thence South 51053153" West along said right of way line, a distance of 132.80 feet; thence along the arc of a 630.00 foot radius curve to the left, a distance of 382.21 feet, whose long chord bears South 34031104" West, a distance of 376.38 feet to the point of intersection with the West line of said Section 2; thence North 00008130" East along said Section line, a distance of 1084.39 feet to the West Quarter corner, said corner being the point of beginning.