2007-58-Order No. 2007-002 Recorded 1/26/2007DESCHUTES COUNTY OFFICIAL RECORDS LJ 001~~~
NANCY BLANKENSHIP, COUNTY CLERK U 2 2
COMMISSIONERS' JOURNAL 0112612407 01;37;47 PM
IIIIIIII IIIIIIIIIIIIIIIIIIII
2007-58
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
COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKS 2007.05135
REVIEW
NO FEE
LEGAL CO SEL 1111111111111111111111111111111111111111111111111
00324177200700051350130130 01/25/2007 04;30:21 PM
D-M37 Cntal Stnal BN
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 Leonard and Peggy * ORDER NO. 2007-002
Zierlein 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, Leonard and Peggy Zierlein made a timely demand for compensation under Measure 37
for a reduction in value to their property at 3968 NW Coyner Avenue, Redmond, 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 August 14, 2006, Leonard and Peggy Zierlein filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 3968 NW Coyner Avenue, Redmond, Oregon and is within
Deschutes County.
3. The County Administrator has recommended that the minimum lot size and zoning regulations
applicable for the subject property that were not already in effect until after November 18, 1966
not be enforced in lieu of payment of just compensation to Claimants. 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 Leonard and Peggy Zierlein are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since November 18, 1966. The County finds and concludes as set
forth below.
PAGE 1 of 3- ORDER No. 2007-002 (01/22/07)
5. The Board concurs with the Administrator's report that the current minimum lot size and zoning
regulations, if applied to the subject property, would not permit a subdivision on the subject
property as desired. These 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 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 subdivision and building permits have reduced the
value of the subject property.
8. The Board concurs with the Administrator's report that developing a subdivision on the
property may be 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 additional dwelling units 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 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 November 8, 1966. 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(l 1)(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 Leonard and Peggy Zierlein.
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,
PAGE 2 of 3- ORDER No. 2007-002 (01/22/07)
3
n
APPROVAL MAY NOT BE GRANTED WITHOUT A VALID WAIVER FROM THE STATE PERTAINING
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 6. 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.
day of January, 2007.
DATED this
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-002 (01/22/07)
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
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 - Leonard and Peggy Zierlein (Claimants)
3968 NW Covner Avenue. Redmond. OR
Introduction
DATE: January 22, 2007
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 may
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 August 14, 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 9.5 acres. The current zoning is EFU-
TRB. The Claimants' desired use is to subdivide the property. Claimant alleges a reduction in value of
Page 1 of 4 - Exhibit A - Order No. 2007-002
approximately $600,000 due to the inability to subdivide as desired. The following is an analysis of the
evidence in the record on the elements of this Measure 37 claim.
Current Owner - Leonard and Peggy Zierlein are the owners of the property comprising this claim: 14-
13-31A, Tax Lot 200 located at 3968 NW Coyner Avenue, Redmond. Claimant submitted a copy of a
land sales contract, dated November 18, 1966, showing them as vendees. They are listed on County
records as the owners and have owned the property continuously.
Owner Date of Acquisition - November 18, 1966
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 the Zierleins obtained an interest in the property is November 18, 1966.
Restrictive Regulation - Minimum Lot Size, Zoning.
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
noted that no zoning was applicable when they acquired the property, identified specific zoning provisions
of the county's ordinance and alleged the same have reduced the value of their property by prohibiting
their ability to subdivide the property. This claim is correct. Minimum lot sizes were first applicable in the
County when the Comprehensive Plan was adopted in 1970.
While the county would need to evaluate any permit 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 the lack of regulations in effect in 1966, that a subdivision could have been placed on
the property, probably subject to existing state regulations about the form and procedure for subdivisions.
Page 2 of 4 - Exhibit A - Order No. 2007-002
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 resulting in the current zoning being enforced on
the subject property. Claimants have demonstrated that submitting an application for such a land division
would be futile. This Report confirms that such an application for the desired subdivision 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 - $600,000 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 not submitted evidence that water and sewer or septic are feasible for a
subdivision of this property. That can be determined in a development application for a
subdivision.
• Claimants' property is located along Coyner Avenue, so access is not an issue.
• Public power is available to the property.
• Claimants have not submitted an appraisal, in an attempt to show the diminution in value based
upon limitations of the property. On its face, the claim demonstrates some reduction in current
zoning value if additional dwelling units were allowed at acquisition and fewer are allowed by
current zoning.
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, Leonard and Peggy Zierlein have continuously owned an interest in the property since 1966.
A claimant who receives a waiver must use the current process to seek the needed permits based on the
Page 3 of 4 - Exhibit A - Order No. 2007-002
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. Claimants have made no claim nor provided evidence
that application of procedural regulations for the form of the desired subdivision would reduce the value of
this property.
Conclusion and Recommendation
The present owner of the property has submitted a claim pursuant to Measure 37 which demonstrates
eligibility for their use of the subject property based on nonexempt land use regulations in effect on
November 18, 1966, the date when Claimants first acquired an interest in the property. There is evidence
in the record that a subdivision on the subject property may 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
November 18, 1966 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 form of 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 4 of 4 - Exhibit A - Order No. 2007-002
IN TOWNSHIP 14 SOUTH, RANGE 13 EAST OF THE WILLAMETTE
MERIDIAN, Deschutes County, Oregon:
Section 31: The NE 1/4 NW 1/4 NE 1/4
EXHIBIT B
Community Development Department:
u~
0 Planning. Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX(541)385-1764
http://www.co.deschutes.or.us/cdd/
Demand for Compensation - Measure 37 Claim
PROPERTY OWNER INFORMATION (Please type or print firmly in dark ink)
Leonard L. Zierlein and Peqqv E. Zierlein
Name of Property Owner
3968 NW Coyner
Mailing Address
Redmond, OR 97756
City, State, Zip
(541) 548-3109
Phone Fax
Edward P. Fitch
Name of Representative (If Any)
P.O. Box 457
Mailing Address
Redmond. OR 97756
City, State, Zip
(541) 54R-91-,1 (541) 548-1895
Phone Fax
PRIVATE REAL PROPERTY DESCRIPTION
Assessor's Map and Tax Lot Number: T14S, R13E, S31, Tax Lot 200
Street Address: 3968 NW Coyner, Redmond,. OR 97756
ZONING DESIGNATION WHEN ACQUIRED:
None
CURRENT ZONING DESIGNATION: EFUTRB
DATE CLAIMANT ACQUIRED PROPERTY: November 18, 1966 (include deed, contract, or
other conveyance).
DATE CLAIMANT'S RELATIVE ACQUIRED PROPERTY, IF APPLICABLE: _
(include title report; chain of title letter; lot book report; Assessor's tax lot card).
AMOUNT OF CLAIM: $ to 00 466 6 A statement of the amount of the claim in dollars
based on the alleged reduction in the fair market value of the property resulting from the enforcement of
the County's regulation
Signature of Claimant (Property wner(s):
L
7~ and L. Zierlei
a (mac
Peggy E. Zier ei
DISCLAIMER NOTICE:
Approval of compensation or modification, removal or non-application of land use regulation does not warrant or otherwise
guarantee that the present property owner or any successors interest can legally use the subject property for the purpose, or in
the manner, approved by the County as such use or purpose may impact third parties, including rights established by
Covenants, Conditions and Restrictions (CC&Rs), other private restrictions, or other regulations, restrictions or contracts.
Quality Services informed with Pride
B RYANT
EMERSON
& FITCH, LLP
Attorney's at Law
August 11, 2006
Kevin Harrison
Planning Director
Deschutes County Community
Development Department
117 NW Lafayette Avenue
Bend, OR 97701-1925
Ronald L. Bryant *
Craig P. Emerson
Edward P. Fitch
Geoffrey J. Gokey
Steven D. Bryant
Michael R. McLane
Michael W. Flinn
* Also admitted in Washington
RAC ID
AUG 14 2006
T
Re: Claim for Compensation Pursuant to Ballot Measure 37 (2004) DE 'BU
.m.....
Dear Kevin:
My office represents Leonard L. Zierlein and Peggy E. Zierlein with respect to a Measure 37 Claim.
This letter constitutes written demand pursuant to Section (4) of Ballot Measure 37 (2004) for
compensation for the property located at:
Claimant
: LEONARD L. and PEGGY E. ZIERLEIN
Street address
:3968 NW COYNER
City, State Zip
: REDMOND, OR 97756
Tax Lot ID #
: T14S, R13E, S31, TAX LOT 200
Current Zoning Designation: EFUTRB
which has been owned by my client since November 18,1966. Enclosed is our check in the amount
of $500.00 in payment of the filing fee. This sum is being paid under protest. If these fees are
found to be invalid, my client reserves the right to request reimbursement.
Since 1966, the Deschutes County has enacted 'regulations and ordinances which placed the
following restrictions upon the use of the property described above:
Restricts the ability of the claimant to subdivide and develop the property.
This restriction remains in force and effect as of the date of this letter.
Accordingly, based upon information and belief, the offending ordinance has caused the fair market
value of the property described above to decrease approximately $600,000. This amount is based
upon analysis of the market and the owner's opinion. This letter constitutes a written demand for
888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756-010
(541) 548-2151 Fax (541) 548-1895 E-mail bef@rdmond-lawyers.co C E
BRY'ANT
EMERSON
& FITCH. t.Lr
\tto ne%s at Lair
Deschutes County
August 11, 2006
Page 2
compensation for the loss of fair market value of the property described above, pursuant to Section
4 of Ballot Measure 37 (2004).
Pursuant to Ballot Measure 37 (2004), you have 180 days from the date of this letter to provide
compensation for the loss of fair market value of the property described above.
In the alternative, the offending statute(s), regulation(s), and/or ordinance(s), may be waived and
uses may be allowed on the property which could have occurred at the time the property was
acquired. Specifically, the property will be put to the following use:
Subdivide and develop property into smaller lots for homesites.
Thank you in advance for your prompt attention to this matter.
Very truly yours,
Edward P. Fitch
EPF/mcm
Enclosures - 1) Consent form
2) Notice of Real Estate Contract
3) Map
4) Assessor's Printout
5) Deschutes County Dial Search Results
6) Filing fee check in amount of $500.00
cc: Mark Pilliod, Deschutes County Counsel (w/enclosures)
Client (w/enclosures)
GAWP51\EPF1_37\Zierlein,Leonard&Peggy\County Claim Letter.wpd
CONSENT
We, LEONARD L. ZIERLEIN and PEGGY E. ZIERLEIN, hereby authorize and consent
Edward P. Fitch and the firm of Bryant, Emerson & Fitch, LLC, to act on our behalf with respect
to all aspects of the filing of a claim under Measure 37.
DATED this ld day of August, 2006.
Leonard L. Zierlein
Peggy E. Zierlein
STATE OF OREGON )
) ss:
County of Deschutes )
This instrument was acknowledged before me this day of August, 2006, by
Leonard L. and Peggy E. Zierlein who acknowledged this to be their voluntary act and deed.
OT PUBLIC FOR OREGON
s MY 007
m
RPage 1 - CONSENT
G:\WP5I \EPR-37\Zierlein,Leonard&Peggy\Consent.wpd(mcm)
BRYANT, EMERSON & FITCH, 1.i.r
ATTORNEYS AT LAW
888 S .W. EVERGREEN AVENUE
PO. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
i
° i
See Moo 14 13 31
z
w
w
D
R
Z
rn
v~
m
(j)m
S C7
C CA
No
N O
0
3
z .
<M
w
0
w
0
Fm
w
D