2007-60-Order No. 2007-010 Recorded 1/26/2007DESCHUTES COUNTY OFFICIAL RECORDS yJ ~007~~0
NANCY BLANKENSHIP, COUNTY CLERK V~1
COMMISSIONERS' JOURNAL 01/26/2007 01:37:47 PM
IIIIIIIIII IIIIIIIIIIIIIIIIII III III
2007-60
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
`VIE✓ -1
t
LEGAL COUNSEL
COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS 007,05137
11111111111111111111111111111111111111111111111111 NO FEE
01/25/2007 04:30:21 PM
D-M37 Cnt-1 Stnmi 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 Shirley R. Harris to Use * ORDER NO. 2007-010
the 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, Shirley R. Harris made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 55705 Chief Paulina Drive, 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;
On August 23, 2006, Shirley R. Harris filed a Measure 37 claim with the Community
Development Department on behalf of herself and the Harris Family Revocable Trust.
2. The subject property is located at 55705 Chief Paulina Drive., Bend, Oregon and is within
Deschutes County.
The County Administrator has recommended that the nonexempt land use regulations for the
subject property that were not already in effect until after April 10, 1973 not be enforced unless
a reviewing court determines that the Harris Family Trust to be the only owner of an interest for
a Measure 37 claim in which case regulations already in force on October 29, 1999 would 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 Shirley R. Harris as an individual and as
Trustor of the Harris Family Revocable Trust is the present owner of the subject property
described in Exhibit "B," having acquired an interest in it and continuously owned it since April
10, 1973. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-010 (01/22/07)
The Board concurs with the Administrator's report that the current land use regulations, if
applied to the subject property, would not permit a subdivision of the 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 subdivision of 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 Claimant's 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 a subdivision of 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 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 10, 1973. If a reviewing court should decide that the
Harris Family Trust is the only owner of an interest for a Measure 37 claim, then regulations in effect on
October 29, 1999, would be enforced. 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 Shirley R. Harris.
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).
PAGE 2 of 3- ORDER No. 2007-010 (01/22/07)
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
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' day of January, 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
(&dwj,4~ - 611kt~-
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-010 (01/22/07)
T Y Y, CO ISSIONER
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 - Shirley R. Harris (Claimant)
55705 Chief Paulina Drive, 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 70.5 acres in one tax lot. The current
zoning is RR10 and FP. The Claimant's desired use is to build a subdivision on the property, a use
currently restricted by County land use regulations. Claimant alleges a reduction in value of approximately
Page 1 of 4 - Exhibit A - Order No. 2007-010
$7 - 10 million due to the inability to subdivide 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 - Harris Family Revocable Trust is the owner of the property comprising this claim: T 205,
R 10E, S24, Tax lot 100 located at 55705 Chief Paulina Drive, Bend. Donald P. and Shirley Ruth Harris,
husband and wife, acquired an interest in the subject property by land sales contract dated February 13,
1973, but executed by the seller's signature on April 10, 1973.
On October 29, 1999, Donald D. and Shirley Ruth Harris, husband and wife, conveyed the property to the
Harris Family Trust. They were identified as trustor and the trustees of this trust in the deed. Donald D.
Harris died on November 8, 2004.
Review of the Harris Family Revocable Trust Agreement dated August 5, 1996, indicates at Section 5.1
that revocation "of all or any part . . . of the trust' may be accomplished "at anytime" by a "written
amendment signed by both of us." Section 5.1 is titled "During Trustors' Lives." The entire section begins
'While we are both living." However, Section 5.2 retains revocation power for the surviving trustor.
Therefore, the trust remains revocable after the death of Donald D. Harris. Shirley R. Harris, then
continues to have all powers of an owner as co-trustee and, now, sole trustee of the revocable trust. That
trust is merely a different form of the ownership by Shirley R. Harris continuously from April 10, 1973.
Harris Family Trust is listed on County records as the owner and has owned the property continuously
sine 1999.
Owner Date of Acquisition - April 10, 1973
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 Shirley R. Harris first obtained an interest in the property is April 10, 1973.
Page 2 of 4 - Exhibit A - Order No. 2007-010
Restrictive Regulation - Minimum Lot Size and 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 Claimant has
alleged the same regulations prohibiting a subdivision have reduced the value of her property.
In 1973, the A-1 zoning in PL-5 was in force. This zoning permitted five-acre lots.
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 1973, that a residential subdivision of the subject property could have
been permitted.
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 subdivision 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 - $7 - 10 million 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 a residential subdivision would be approved.
• Claimant's property is located along Chief Paulina Drive, so access may not be an issue.
• Other necessary utilities are available to the property.
• Claimant has submitted an appraisal in an attempt to show the diminution in value based upon
limitations on the siting of a residential subdivision on the property.
• A portion of the property is designated as flood plain.
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
Page 3 of 4 - Exhibit A - Order No. 2007-010
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 propert (emphasis added)
11(c) "Owner" is the present owner of the property, or any interest therein. "
In this case, Shirley R. Harris, as an individual or as Trustor of a revocable trust has continuously owned
an interest in the property since 1973. 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 10,
1973, the date when Claimant 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
April 10, 1973, 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. If a reviewing court should determine that the Trust alone,
not Shirley R. Harris individually, is the only Measure 37-eligible owner, then the Order would have the
effect of waiving nonexempt regulations not in effect until after October 19, 1999.
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. 2007-010
--.w►... __..,.,:.,....,....~-....,Meg. viM%k....-.~-~.iAr-...
IN TOWNSHIP 20 SOUTH, RANGE 10 EAST OF THE WILLAMETTE MERIDIAN, Des-
chutes County, Oregon:
Section 24: The E 112 SE 1/4 EXCEPT the following described parcels:
Commencing at the Northwest corner of the NE 1/4 SE 1/4; thence South on
40 tine a distance of 319 fget tq.the Northeasterly bank of the Des-
chutes River; thence Southeasterly along the Easterly bank of -tw
Deschutes River a distance of 245 feet more or less, to a point "whic`h 5
also the most Westerly point of that property heretofore conveyed by
that certain deed recorded in Book 122, page 178, Deed Records; Des-
chutes County, Oregon; thence North 40° East a distance of 200 feet to a
point which is marked by a stake, which point is also the most Northerly
point of that property described in Book 122, page 178 Deed Records,
Deschutes County, Oregon; 'thence North 40° West a distance of 453 feet
to the North 40 line; thence West along the North 40 line a distance of
158 feet to the point of beginning; reserving, however, unto the Sellers,
the use in common with others, together with the right of ingress and
egress thereon and thereto, a right of way 40 feet wide and approximately
200 feet in distance along the Southeasterly portion of the above described
tract; this reservation being a life estate; ALSO EXCEPT that portion of
the N 1/2 E 1/2 SE 1/4 of said Section 24, described as follows: Starting
at iron stake on river bank which is 520 feet South, 35° East of East
1/16 corner of Section 24, thence 200 feet East, 40° North to iron
stake; thence 349 feet South, 40° East to iron stake; thence 247 feet
West, 35° South to iron stake on river bank; thence 400 feet North along
river bank to starting point.---
kit-1