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2007-59-Order No. 2007-003 Recorded 1/26/2007DESCHUTES COUNTY OFFICIAL RECORDS 9 NANCY BLANKENSHIP, COUNTY CLERK CJ Q 2007-59 COMMISSIONERS' JOURNAL 0112612007 01;37;47 PM 111111111111111111111111111111 2007-Sa 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 \A, REVIE\ EGAL COUNSEL DESCHUTES COUNTY OFFICIAL RECORDS 1001 0536 NANCY BLANKENSHIP, COUNTY CLERK ■ 111111111111111111111111111111111111111111111111 NO FEE 00'324178200700051360140143 01/25/2007 04:30:21 PM D-H37 Cnt=i Stn=1 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 Loretta A. Hadley to Use the Subject Property as Allowed When She Acquired the Property * ORDER NO. 2007-003 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, Loretta A. Hadley made a timely demand for compensation under Measure 37 for a reduction in value to her property at 22015 Bear Creek Road, Bend, 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 August 23, 2006, Loretta A. Hadley filed a Measure 37 claim with the Community Development Department. 2. The property is located at 22015 Bear Creek Road, 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 July 10, 1974 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 Loretta A. Hadley is the present owner of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since July 10, 1974. The County finds and concludes as set forth below. 5. The Board concurs with the Administrator's report that the current zoning regulations, if applied to the subject property, would not permit a partition of the subject property into three lots as PAGE 1 of 3- ORDER No. 2007-003 (01/22/07) desired. 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 partition 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. 8. The Board concurs with the Administrator's report that a partition of 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 partition 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 July 10, 1974. 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 Loretta A. Hadley. 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. THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS SPECIFIED ABOVE. DESCHUTES PAGE 2 of 3- ORDER No. 2007-003 (01/22/07) 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. DATED this 2171 day of January, 2007. ATTEST: Recording Secretary PAGE 3 of 3- ORDER No. 2007-003 (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 - Loretta A. Hadley (Claimant) 22015 Bear Creek Road. Bend 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 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 August 23, 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 16 acres in one tax lot. The current zoning is EFU-TRB. The Claimant's desired use is to partition the property into three five-acre lots for residential purposes, a use currently restricted by County land use regulations. Claimant alleges a Page 1 of 4 - Exhibit A - Order No. 2007-003 reduction in value of $243,804 due to the inability to divide as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Loretta A. Hadley is the owner of the property comprising this claim: 18-13-06, Tax Lot 800 located at 22015 Bear Creek Road, Bend. Claimant submitted a copy of a warranty deed, dated July 10, 1974, recorded at Vol. 208 page 303 Deschutes County Deed Records, showing herself as grantee. She is listed on County records as the owner and has owned the property continuously. Owner Date of Acquisition - July 10, 1974 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 Loretta A. Hadley obtained an interest in the property is July 10, 1974. Restrictive Regulation - Zoning and Minimum Lot Size 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 divide and build on three five-acre lots on the property. The current zoning, EFU-TRB does not allow a division of the property. However, in 1974, when claimant purchased the property, the zoning was A-1. That zoning permitted single family dwellings on five-acre lots, subject to the partition process to accomplish the division. 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 partition to divide the property resulting in the current zoning Page 2 of 4 - Exhibit A - Order No. 2007-003 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 partition 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 - $243,804 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 onsite septic systems would be approved for each of three lots. • Claimant's property is located along Bear Creek Road, so access is not an issue. • Claimant asserts that other public utilities including power, phone, and irrigation water are available to the property. • Claimant has submitted an opinion from a lawyer with comparable property values in an attempt to show the diminution in value based upon prohibition of creating two additional lots 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." (emphasis added) 11(c) "Owner" is the present owner of the property, or any interest therein. " In this case, Loretta A. Hadley has continuously owned an interest in the property since 1974. 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. Claimant has neither asserted nor provided evidence that the current procedural requirements for the desired partition of this property reduce its value. Page 3 of 4 - Exhibit A - Order No. 2007-003 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 July 10, 1974, the date when Claimant first acquired an interest in the property. There is some evidence in the record that a partition of 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 July 10, 1974 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. 2007-003 t The Easterly 20 feet of the Northerly Lot 1 in Section 1, Township 18 South of the 'Willamette Meridian, and'.two~p. in Section 6, Township 18 South, Rang Willaatte Meridian, described as fol. Northerly 250 feet of the West-155 fe also that portion of the ESt'=6£0. fey 815 feet of Lots 4 and 5 1'149 :2iorthe' the Northeasterly right of gray `c= the Irrigation District Canal, all in Des Oregon. 125 €eet of . Ran#" 12 'East arcels. of land e "13 ig*4t of A;he . and \T E Community Development Departmen Planning Division Building Safety Division Environmental Health Divisio 117 NW Lafayette Avenue Fiend Oregon 97701-192 (541)388-6575 FAX(541)385-176. http://www.co.deschutes.or.us/cdd Demand for Compensation - Measure 37 Claim PROPERTY OWNER INFORMATION (Please type or print firmly in dark ink) Loretta A. Hadley Name of Property Owner Name of Representative (if Any) 22015 Bear Creek Rd. Mailing Address Mailing Address Bend, OR 97701 Ci4 3'9(5476 city, state, zip Phone Fax Phone Fax PRIVATE REAL PROPERTY DESCRIPTION Assessor's Map and Tax Lot Number: 18-13-06 800 Street Address: 22015 Bear Creek Rd. ZONING DESIGNATION WHEN ACQUIRED: A-1 CURRENT ZONING DESIGNATION: EFUTRB DATE CLAIMANT ACQUIRED PROPERTY: other conveyance). 1974 (include deed, contract, or 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: $ 243,804 or Waiver 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 Signatu of Claimant (Property Owner(s): 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. N/A DEMAND FOR COMPENSATION - MEASURE 37 CLAIM CHECKLIST AND ATTACHMENTS TO BE SUBMITTED BY PROPERTY OWNER Although there are no prerequisites for filing a claim, the inclusion of the following information in a claim application will allow the County to evaluate and render a decision on a claim in a more expeditious manner. The absence of this information may result in an extended amount of time to process the claim due to increased research by County staff. ✓1. Fee. The demand processing fee shall be refunded if the county, circuit court or an appellate body determines that just compensation should be paid. V'12. Form. A completed demand form. ✓ 3. Proof of Present Property Ownership. Deed or other documentation demonstating that the property is in the exclusive fee simple ownership of the owner or that the owner has the consent of all owners in the property. The names and mailing address of all owners other than the owner making the demand should be provided. ✓4. Ownership History. Required when the claim concerns application or enforcement of County Regulations in effect prior to the Claimant's acquisition of the property. A title report, chain of title letter, lot book report or Assessor's tax lot card showing chain of title for the property. ✓ 5. Identification of Regulation. A copy of the land use regulation that owner making the demand claims restricts the use of the property or interest therein that has had the effect of reducing the fair market ~ value of the property. l/ 6. Copy of Prior Regulations. A copy of the land use regulation in existence, and applicable to the property, when the owner became the owner of the property. NIA 7. Enforcement of County Regulation. Copies of any land use actions, development applications or other relevant applications for permits that have previously been filed in connection with the property and the action taken. Any such actions that represent the required "enforcement" and/or "application" of the land use regulation that are prerequisites to making a demand must be described and identified as such. ✓ 8. Appraisal. A copy of a written appraisal or appraisals by an MAI appraiser, qualified, certified, and licensed as such in the State of Oregon, for the type of property under consideration, indicating the amount of the alleged reduction in the fair market value of the property by showing the difference in the fair market value of the property before and after enactment, enforcement or application of the land use regulation described in item (7) above and explaining the rationale and factors leading to that conclusion. In the alternative, the applicant should submit a statement detailing the current value of the property with the restrictive regulation and a statement detailing what the value of the property would be if the restrictive regulation was not applied to the property. ✓9. Statement of the Owner's Understanding of the Effect of Any Modification, Removal or Non-Application of Land Use Regulation. 1) A statement by the owner explaining how the County's enforcement of the regulation restricts the use of the Claimant's property, and 2) a statement explaining Owner's potential development of the property, stating the greatest degree of development that would be sought if the identified regulations were modified, removed or not applied. F HE LAAV 01-FICG OF PAUL- J. SPECK August 22, 2006 Kevin Harrison, Principal Planner AUG 2 2 2096 Deschutes County Community Development DESC'HUrEsl 117 NW Lafayette DD Bend, OR 97701 Re: Claim for Compensation Pursuant to Ballot Measure 37 Dear Kevin, This letter constitutes a written demand pursuant to Section (4) of Ballot Measure 37 (2004), for compensation for the property located at: Claimant: Loretta A. Hadley Street Address: 22015 Bear Creek Rd. City, State Zip: Bend, OR 97701 Tax Lot ID#: 18-13-06 800 Current Land Use Zone Designation: EFUTRB The property identified above has been owned continually by Loretta A. Hadley since 1974, as shown by the deed dated July 10, 1974 and recorded at Vol. 208 page 303, Deschutes County Deed Records (Exhibit A). Enclosed is a check in the amount of $500.00 to cover the filing fee. This sum is being paid under protest. If these fees are subsequently found to be invalid, my client reserves the right to request reimbursement. Deschutes County adopted PL-5 Zoning Regulations on December 2, 1971 and the zoning map in November 1972 (Exhibit B). These zoning regulations were arguably in force at the time Loretta A. Hadley purchased the property identified above. The zoning regulations adopted December 12, 1971 for the A-1 zone, listed single-family dwellings as uses permitted outright and allowed the creation of parcels or lots with a minimum of five (5) acres. The property in this claim was located in the A-1 Zone. It was eligible for single- family dwellings on lots of five (5) acres or larger. 8~3©~ 7 123 NJV Bone/ Street, Bend, Oregon 97701 p: 5q I13R8- 110 7 f 5LI 11388- 73 70 yourorgonlawyer.com pspeck@yoeiroregonlawyer.com Kevin Harrison, Principal Planner August 22, 2006 Page 2 On November 1, 1979, Deschutes County adopted a revised Zoning Ordinance that created new Exclusive Farm Use Zones and amended outright permitted uses, as ,well as the minimum size of parcels or lots created by a partition or subdivision of land, in Exclusive Agriculture/Farm Use Zones (Exhibit C). The property owned by Loretta A. Hadley was reclassified from A-1 Zone to EFU-20. The reclassification of EFU-20 on the Hadley property eliminated the single-family residential dwelling as an outright permitted use and increased the minimum lot size. The 16.07 acres of property owned by Loretta A. Hadley in 1974 was permitted outright to be subdivided into multiple residential lots with a minimum of five (5) acres. Mrs. Hadley has, therefore, lost the ability to divide her property into a total of three (3) parcels. The current assessed Real Market Value for land in Tax Lot 800 with a single-family dwelling sited on the designated residential tract property is $310,020, or $19,292 per acre (Exhibit D). For comparison, the assessed Real Market Value for land in Tax Lot 100, the 3.55 acre parcel next door at 21975 Bear Creek Road, is $146,350 or $41,225 per acre (Exhibit E). The inability to partition property into five acre parcels has REDUCED the Real Market Value of the 16.07 acres by approximately $243,804 ($41,225-$19,292 x 11.2 acres _ $243,804 - This calculation deducts five (5) acres for the existing dwelling.). Pursuant to Ballot Measure 37 (2004), Deschutes County has 180 days from the date of this letter to provide compensation for the loss of the fair market value of the property described above. The property owner's preferred alternative is that the county waive the existing regulations and allow the property to be partitioned into three (3) parcels containing a minimum of five (5) acres each. Specifically, the property will be put to the following use: Loretta A. Hadley intends to record a final partition map that will approve the partition of the property into a maximum of three (3) parcels, each parcel being eligible for an outright permitted single-family dwelling, containing a minimum of five (5) gross acres for each lot, each with access to Bear Creek Road. The parcels created will contain onsite approved septic systems. Power, phone, and irrigation water are available at the site or nearby. Kevin Harrison, Principal Planner August 22, 2006 Page 3 If you have any questions, please feel free to give me a call. Sincerely yours, PAUL J. SPECK PJS.jlc Enclosure Harris\DeschLtr 1.wpd t ~ 'n s. r SEE MAP 18 12 010 SEE MAP 18 12 OIA N '~vrtpnq f 09a 1166u6611~ a I~ Il6.l5 ti 1 b 0 t ~ l ~ a ~ b - Ly ~ e m✓ y - I g S JN o " g ° & s^ s . J1. i fi65 e a .09 665.12 e $ 1, n 320.11 _ 3a s ® ~8♦ a - 6}5.0 ,ITA~ ✓ • lOB IB ~ 10 . _ 635.0 (n 1,/ .0t' ry I Z C a~ o 0 61 m 00 526.1 + <A0. r N L/) P tl = c CA O C= ~4 e I C ; ° N 526 1 d . I_ a x x a 1 P84/Z OO SEE MAP 18 13 05 co c W O OS O cr)