2007-61-Order No. 2007-017 Recorded 1/26/2007D
ESCHUTES COUNTY OFFICIAL RECORDS CJ 2007-61
NANCY BLANKEN,
COMM SSIONERSSHJOURNALNTY CLERK CJ II I I I II I I IIII 111111111111 ~u 01/16/007 01:37:47 PM
2007=61
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Deschutes County Clerk
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Re-recorded to correct [give reason]
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FICIAL NANCYDESCHUTESBLANKENSHIPCOUNTY CLERKS 2007'05138
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LEGAL C UNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE
00524180200700051380100107
01/25/2007 04;30;21 PM
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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 Ted and Laurie * ORDER NO. 2007-017
Goodwin 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, Ted and Laurie Goodwin made a timely demand for compensation under Measure 37 for a
reduction in value to their property at Map No 14-11-06, Lot 1400, located off Wilt Rd. about 9 miles north of
Sisters 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 March 22, 2006, Ted and Laurie Goodwin filed a Measure 37 claim with the Community
Development Department.
2. The property is located at Map No 14-11-06, Lot 1400, located off Wilt Rd. about 9 miles north
of Sisters , 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 June 1, 1989 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 Ted and Laurie Goodwin are present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since June 1, 1989. The County finds and concludes as set forth below.
5. The Board concurs with the Administrator's report that the current regulation, F-2 Forest Use
and WA, Wildlife Combining zoning, if applied to the subject property, would not permit a
PAGE 1 of 3- ORDER No. 2007-017 (01/22/07)
partition on this subject property. The current regulation is a land use regulation which is 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 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 Claimants have not demonstrated that
domestic water, and septic for the desired use on the subject property are feasible. However,
these matters can and would be evaluated in connection with a development application.
Despite the lack of a precise amount of reduction in value, the loss of the ability to add
additional buildable lots from 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 acquired the property. That land use shall be permitted if the subject property fully
complies with all substantive land use regulations in effect on June 1, 1989. 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 Ted and Laurie Goodwin.
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. 2007-017 (01/22/07)
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.
DATED this 2zlt~day of January, 2007.
ATTEST:
2 . Nlk~
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
R. LUKE, VICE CHAIR
TAMMY BANEY, COMMIS I NER
PAGE 3 of 3- ORDER No. 2007-017 (01/22/07)
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 - Ted and Laurie Goodwin (Claimant)
Stevens Canyon Rd., Sisters, 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 March 22, 2006, when
Measure 37 was in lawful effect. Claimants originally submitted this claim in their capacity as trustees of
The James Goodwin trust. However, they have since modified their claim, asserting that they are
proceeding in their individual capacity. Claimants have paid the filing fee and submitted the County's
official demand form. The property is about 160 acres. The current zoning is F-2 Forest Use and WA,
Page 1 of 6 - Exhibit A - Order No. 2007-017
Wildlife Combining. The Claimants' desired use is a subdivision and Claimants allege a reduction in value
of approximately $600,000 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 - Ted and Laurie Goodwin
Claimants submitted a series of documents as follows:
Contract of Sale - Jack and Sarah Shumway sold to James Crabbe, dated 03/15/1972
Assignment of Contract - James Crabbe to John Hamilton, dated 01/24/1975
Assignment of 2/3's interest - John Hamilton to Clifford and Mari Moulton, dated 03/20/1976
Assignment of Contract - Potters Industries, Inc. to James Goodwin, Stanley Urbigkeit and Sidney
Brockley, dated 11/17/1978
Assignment of Contract - Hamilton and Clifford and Mari Moulton to Potters Industries, Inc., dated 11/24,
1978
Special Warranty Deed - Sarah Shumway (surviving spouse of Jack Shumway) to James Goodwin,
Stanley Urbigkeit and Sidney Brockley, dated 02/09/1984
Personal Representative's Deed - Miriam Urbigkeit (surviving spouse of Stanley Urbigkeit) to Miriam
Urbigkeit, dated 07/03/1991
Bargain and Sale Deed - Miriam Chitty (fna Miriam Urbigkeit) to James Goodwin, dated 10/15/1993
Bargain and Sale Deed - Sidney Brockley to Ted and Laurie Goodwin, dated 09/24/1996
Bargain and Sale Deed - Sidney Brockley, trustee of the James Goodwin Trust to Ted Goodwin, dated
10/11/2000.
The series of transactions involving partial interests in the subject property is the result of three partners'
1984 deed, recorded at Volume 47, page 582 Deschutes County Deed Records. Claimants Ted and
Laurie Goodwin, first acquired an interest in the property by purchasing partner Brockley's one-third
interest on June 1, 1989. That land sales contract is recorded at Volume 187, page 2618. Claimants
paid off that contract and the deed is recorded at Volume 423, page 2970, November 19, 1996.
In 1993 Claimant Ted's father, James, an original partner in the 1984 deed bought out the third partner,
Urbigkeit's one-third interest by deed dated October 15, 1993, recorded at Volume 329, page 1680,
making James' interest two-thirds of the subject property.
Page 2 of 6 - Exhibit A - Order No. 2007-017
James Goodwin transferred his interest in the subject property to his Revocable Trust in that instrument
dated May 24, 1997. Upon his death, a deed from the trust conveyed a one-half interest to claimant Ted,
recorded October 16, 2000 at Volume 2000, page 41684. That left a one-sixth interest in James
Goodwin's Revocable Trust that was deeded to claimant Ted, recorded at Volume 2000, page 48058.
This made Ted the one hundred percent owner.
The foregoing documents demonstrate that James Goodwin first acquired an interest in the subject
property by virtue of the assignment of a landsale contract on November 17, 1978. Such interest was
later confirmed by Special Warranty Deed on February 9, 1984.
The evidence shows that Ted and Laurie Goodwin, as individuals first acquired an interest in the subject
property by virtue of a land sale contract on June 20, 1989. County records indicate they continue to
have an interest by means of a trust arrangement.
Owner Date of Acquisition - June 1, 1989
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 of the Ted and Laurie Goodwin acquired an interest is the date of the Bargain and Sale
Deed, dated June 1, 1989. This report would conclude that Ted and Laurie Goodwin have "an interest"
for Measure 37 purposes and such interest first arose in 1989.
Restrictive Regulation - F-2 Forest Use and WA Wildlife Combining.
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 F-2 Forest Use and WA Wildlife Combining as the regulations restricting the desired use, a
Page 3 of 6 - Exhibit A - Order No. 2007-017
residential subdivision. This regulation is a County land use regulation, which is subject to Measure 37
claims. Claimants have not identified any particular county land use regulations which restrict the use of
the property and which were adopted by the County after they first acquired an interest in the property in
1989.
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 1989, 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. There is no evidence that Claimants have applied for a land division of the property resulting in the
current zoning being enforced on the subject property. Claimants participated as opponents at the time
the County was in the process of adopting the proposed forest zoning. 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 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 submitted well logs on nearby properties as evidence that domestic water is
available for the desired subdivision.
• Claimants have submitted no evidence that sanitary service is or would be feasible for the desired
subdivision.
• Direct access to a public road may not be available. However, access may be obtained via
easement from adjoining property and US Forest Service.
• Claimants' evidence consists of an opinion of value by Scott Buckles, appraiser, that the value of
four forty-acre homesites would each be worth approximately $325,000 per parcel. This opinion
is not based upon an analysis of value before and after application of county land use regulations
in June, 1989.
Furthermore, Claimants' alleged reduction in value appears to be based upon the assumption that lots
created by subdividing the property are fully marketable and useable by others for development.
Referring to a recent Opinion of the Oregon Attorney General, rights obtained under Measure 37 are
Page 4 of 6 - Exhibit A - Order No. 2007-017
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.
Assuming without deciding Claimants could have obtained approval of a partition 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, Ted and Laurie Goodwin have continuously owned an interest in the property since 1989. 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 June 1,
Page 5 of 6 - Exhibit A - Order No. 2007-017
1989, the date when Claimants first acquired an interest in the property. There is no 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. Therefore, the desired use of additional lots may or may
not be feasible for water, septic and access. The zoning that was in effect at the time the owner acquired
the property would be applied to a subdivision application for that use.
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
June 1, 1989, to allow the owner to use the property in a manner permitted at the time the owner acquired
the property. In essence, the County would not apply any land use regulations to the property which were
not in effect when the particular Claimants acquired 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 6 of 6 - Exhibit A - Order No. 2007-017
LEGAL DESCRIPTION
Sw Quarter of Section 6, Township 14 South, Range 11 E of the Willamette
Meridian, Deschutes County, Oregon.
EXHIBIT B