2006-1049-Order No. 2006-172 Recorded 12/8/2006FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKS CJ 244601449
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2006-1048
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DESCNUTES
COUNTY CLERKDS
REVi 2006-80108
iij- NANCY LEG OUNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE
IIIIIIIIII
0053348420060080i0800B0080
12/07/2006 01:14:21 PM
D-N37 Cnts1 Stnn3 PC
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 Stephen and Linda * ORDER NO. 2006-172
Hanson 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 Linda Hanson made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 65825 93rd St., 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;
On June 2, 2006, Stephen and Linda Hanson filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 65825 93`d St., 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 1, 1976 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 Linda Hanson are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since March 1, 1976. The County finds and concludes as set forth
below.
5. The Board concurs with the Administrator's report that the current land use regulations, EFU-
TRB and certain subdivision regulations, if applied to the subject property, would not permit a
PAGE 1 OF 3- ORDER NO. 2006-172 (12/04/06)
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 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 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 March 1, 1976. 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 Linda Hanson.
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. 2006-172 (12/04/06)
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. tIU4
DATED this day of December, 2006.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
R. LUKE,
ATTEST:
(F;M&t~
Recording Secretary
PAGE 3 of 3- ORDER No. 2006-172 (12/04/06)
BEV CLARNO_ VICE CHATR
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.orq
TO: Board of County Commissioners
From: David Kanner, County Administrator
RE: Measure 37 Claim - Stephen and Linda Hanson (Claimant)
65825 93rd St., Bend, 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 2, 2006, when
Measure 37 was in lawful effect. Claimants have paid the filing fee and have submitted the County's
official demand form. The property consists of one lot with approximately 100 acres. The current zoning is
EFLI-TRB. The Claimants' desired use is a subdivision and Claimants allege a reduction in value of
Page 1 of 5 - Exhibit A - Order No. 2006-172
approximately $1,000,000 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 - Stphen and Linda Hanson are owners of the property comprising this claim: 16-12-16,
Tax lot 200 and located at 65825 93~d St., Bend. Claimants submitted a statement explaining that they
first came into possession under a "lease" with Stephen's partents in 1974. Thereafter they arranged a
contract of sale, dated March 1976 and later modified in May 1976. A fulfillment deed to the Claimants
was recorded in 1992. They have continuously owned the property until the present.
Owner Date of Acquisition - March 1, 1976
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 Linda Hansen obtained an interest
in the property is March 1, 1976, the date of their contract. Claimants' occupancy of the property prior to
that time is not documented and may have amounted to little more than a tenancy at will, which is an
insufficient interest in the property to have been affected by county land use regulations in a manner
which entitle them to remedies under Measure 37.
Restrictive Regulation - EFU-TRB.
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-TRB zoning as reducing the value of their property by inhibiting development of a
subdivision. All were adopted after the acquisition date of 1976.
Page 2 of 5 - Exhibit A - Order No. 2006-172
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 1976, 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 - $1,000,000 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 asserted that the soils are satisfactory for supporting a standard septic system for
the desired subdivision.
• Claimants have also asserted that domestic water from wells is sufficient to support domestic
water to a subdivision.
• Claimants have submitted no appraisal, but have instead asserted that in discussions with
unnamed realtors the additional 5-acre parcels would be worth about $250,000 each with
development costs of approximately $25,000 to $30,000 per parcel.
• The property abuts the Old Bend-Redmond Hwy and 93`d St.
Claimants' alleged reduction in value appears to be based upon the assumption that additional lots
created by 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.
Page 3 of 5 - Exhibit A - Order No. 2006-172
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
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, Steven and Linda Hanson have continuously owned an interest in the property since 1976. 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 1,
1976, 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
March 1, 1976, to allow the Claimants to use the property in a manner permitted at the time they acquired
Page 4 of 5 - Exhibit A - Order No. 2006-172
the property. This waiver is not a development permit. By granting a waiver, the County does not commit
itself to approving Claimants' desired subdivision.
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. 2006-172
EXHIBIT B
Northeast Quarter of the ;Southeast Quarter and the Last half of the
lor*,.huast Quarter of" seotion 16 in Township 16 South Range 12 ea. st
W. M. Together with "I appurtenant aater rights of appro>Umately
s acro,s serve through the system of Desch'al e-q Reelasaa ion and
Irrigation Co. together with all milking equipment thereon, excepting
therefrom approximately 3~- acres previously sold to G. K. L. and
approximately 6 acres on the North end n~,w owned by Aar,3. Clark, the
total property being appxoximately 100 acres,
reserving unto Grantor a right to pipe watcr from the well on the
preaisen to their residence u _therly ' and sapterly from the property
an4 reserving right of way 60 feet in width along the :
edge thereof. t* provide access from 93rd street, to pzope.---y owned by
Seller to the nest of the above described pro rty.
Order No. 2006-121; Hanson