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2007-98-Order No. 2007-009 Recorded 2/9/2007DESCHUTES COUNTY OFFICIAL RECORDS I~} NANCY BLANKENSHIP, COUNTY CLERK IiJ V ~7 COMMISSIONERS' JOURNAL 02/09/2001 08:38:55 AM IIIIIIII IIIIIIIIIIIIIII I I III 2007-a8 Do not remove this page from original document. Deschutes County Clerk Certificate Page { C 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 and Page or as Fee Number REVI LEGAL COUNSEL COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS 2007-08259 NO FEE 00S27S2S200700082s900$0090~~D-M37 Cnt:1 Stn=4 TM 02/08/2007 03:59:14 PM 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 Marianne M. Walker to * ORDER NO. 2007-009 Use 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, Marianne M. Walker made a timely demand for compensation under Measure 37 for a reduction in value to her property at 65895 Highway 20, 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 September 1, 2006, Marianne M. Walker filed a Measure 37 claim with the Community Development Department on behalf of herself and Marianne M. Walker Trust. 2. The property is located at 65895 Highway 20, 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 October 19, 1973 not be enforced in lieu of payment of just compensation to Claimant. If a reviewing court determines that the Marianne M. Walker Trust and not Marianne Walker as an individual is the owner of the undivided one-half interest in the subject property, then regulations already in force on September 25, 1990 would be enforced. 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 Marianne M. Walker and the Marianne M. Walker Trust is the present owner of a one-half interest in the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since October 19, 1973 PAGE 1 OF 3- ORDER No. 2007-009 (02/05/07) for Marianne M. Walker and since September 25, 1990 for the Marianne M. Walker Trust. The County finds and concludes as set forth below. The Board concurs with the Administrator's report that the current land use regulations, Exclusive Farm Use - TRB, Tumalo/Redmond/Bend subzone, if applied to the subject property, would not permit a residential subdivision 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 residential 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 Claimant has demonstrated that domestic water and access for the desired use on the subject property may be 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 develop a residential subdivision 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 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. 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 an interest in the property. That land use shall be permitted if the subject property fully complies with all substantive land use regulations in effect on October 19, 1973. If a reviewing court should decide that the Marianne M. Walker Trust is the only owner of this undivided one-half interest in the subject property for a Measure 37 claim, then regulations in effect on September 25, 1990 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 Claimants' proposed use. As used in this section, "land use regulations" refer to those listed in ORS 197.352(l l) (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 Marianne M. Walker. 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. PAGE 2 of 3- ORDER No. 2007-009 (02/05/07) 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 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 5*- day of February, 2007. ATTEST: 4_A~ c Recording Secretary DENNIS R. LUKE, VICE-CHAIR TAMM qA-NE bY, COMM IONER PAGE 3 of 3- ORDER No. 2007-009 (02/05/07) 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 DATE: February 5, 2007 From: David Kanner, County Administrator RE: Measure 37 Claim - Marianne M. Walker (Claimant) 65895 Highway 20, Bend, OR Introduction 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 September 1, 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 approximately 386 acres total. The current zoning is Exclusive Farm Use, EFU - TRB Tumalo/Redmond/Bend subzone with a farm use minimum lot size. The Claimant's desired use is a residential subdivision and Claimant alleges a reduction in value of Page 1 of 5 - Exhibit A - Order No. 2007-009 approximately $1,000,000 due to the inability to develop 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 - Marianne M. Walker Trust, Donald P. Walker Trust The property was initially acquired by Donald P. and Marianne M. Walker in separate transactions. First, on October 19, 1973 they acquired what is identified in the claims as 16-11-15, Tax Lots 1400, 1500, 1600, 1700 and 16-11-16, Tax Lots 300 and 400 by land sales contract. Undivided one-half interests in the property which is the subject of that contract were deeded into two revocable trusts on September 25, 1990. The Donald P. Walker Living Trust Agreement, executed July 3, 1990, received an undivided one- half interest in the subject property by the September 25, 1990 deed. Marianne M. Walker's Revocable Living Trust Agreement, executed September 25, 1990, received an undivided one-half interest in the subject property by the same deed. These two trusts remain the owners of the subject property. The County has previously taken the position that the creators of a revocable trust have the authority to dissolve the trust and retake title to trust property and that for Measure 37 purposes are treated as the owners of such property. Based upon the foregoing, it appears that Claimant has had an interest in the subject property in since October 19, 1973. Owner Date of Acquisition - October 19, 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 that Marianne M. Walker acquired an interest is the date of the land sale contract with the claim, October 19, 1973. Thus Claimant has "an interest" for Measure 37 purposes and such interest first arose in 1973. Restrictive Regulation - Exclusive Farm Use - EFU - TRB Tumalo/Redmond/Bend subzone. Page 2 of 5 - Exhibit A - Order No. 2007-009 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 the County's EFU-TRB zoning and Tumalo/Redmond/Bend subzone as restricting Claimant's ability to develop the property as a residential subdivision. Pursuant to PL-5, the County's original zoning ordinance, adopted in 1971 agricultural land could be divided into lots as small as five acres. The County's zoning ordinance, PL-15, was adopted in 1979, together with associated zoning maps, which designated the subject property as exclusive farm use with a 20-acres minimum lot size. Subsequently, the State adopted income standards for farm-related dwellings in 1993. While the county would need to evaluate any land use application that may be submitted pursuant to regulations in effect at the time Claimant first acquired an interest in the property, based upon zoning in effect in 1973, development of the property for a residential subdivision 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 residential subdivision on the property resulting in the current zoning being enforced on the subject property. Claimants have not demonstrated that submitting an application today for a residential subdivision would be futile.. However, this report confirms that such an application for such a development 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 - $1,000,000 alleged on Claim Form The ordinance requires that the claimant provide evidence of the amount of the claim in alleged reduction in the fair market value of the property resulting from the enforcement of a County's land use regulation that was first adopted or applied after the claimant first acquired the property. • Claimant has asserted that domestic water by means of individual wells is available for the desired subdivision. • Claimants have also asserted that individual septic systems would be feasible for each new lot for siting residential dwellings. • Access is available from Highway 20. Page 3 of 5 - Exhibit A - Order No. 2007-009 • Claimant has submitted no evidence of reduction in value based upon application of County land use regulations other than her lawyer's estimate of the net value of forty five-acre lots, less development costs. Claimant's alleged reduction in value appears to be based upon the assumption that as a residential subdivision it would be fully marketable and useable by others for such use. Referring to a recent Opinion of the Oregon Attorney General, rights obtained under Measure 37 are personal to the present property owner. Assuming an owner, having obtained the necessary "waivers" from the County and the State, could develop the property for a nonfarm dwelling, 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 Claimant may be unreliable, if the resulting dwelling is 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 that Claimant could have obtained approval of a residential subdivision on the property on the date they first acquired an interest in the property, but not under zoning restrictions adopted after Claimant's acquisition date, and the resulting lots are fully marketable and useable by future owners, then the value of Claimant's 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, Marianne M. Walker, as an individual as the trustor of a revocable trust, has continuously owned an interest in the subject property since 1973. 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 Page 4 of 5 - Exhibit A - Order No. 2007-009 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 A 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 October 19, 1973, the date when Claimant first acquired an interest in the property. There is evidence in the record that some additional development on the subject property would be feasible for available domestic water, sanitary waste disposal and road access. Feasibility of the desired use of the desired dwelling for water, septic and access would be determined in connection with a land use application. The zoning that was in effect at the time the owner acquired the property would be applied to a land use 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 October 19, 1973 , to allow the claimant to use the property in a manner permitted at the time the claimant acquired an interest in the property. If a reviewing court should determine that her Trust, not Marianne M. Walker individually, is the only Measure 37-eligible owner, then the Order would have the effect of waiving nonexempt regulations not in effect until after September 25, 1990. In essence, the County would not apply any land use regulations to the property which were not in effect when the particular Claimant acquired the property. This waiver is not a development permit. By granting a waiver, the County does not commit itself to approving Claimant's residential subdivision. Cautionary Note on Measure 37 Claimant should understand that a decision by Deschutes County may not enable her to proceed with future development or construction unless the State of Oregon approves a waiver of applicable State land use regulations. Claimants who wish to obtain information relative to their "State" claims under Measure 37 are advised to contact the State Department of Land Conservation and Development and the Department of Administrative Services. Page 5 of 5 - Exhibit A - Order No. 2007-009 i LEGAL DESCRIPTION PARCEL 1: The Southwest Quarter (SW1/4) and that portion of the Northwest Quarter (NW1/4) lying Westerly from the Westerly right of way of U.S. Highway 20, Section Fifteen (15); and the South Half of the Southeast Quarter (S1/2 SE1/4) of Section Sixteen (16), all in Township Sixteen (16) South, Range Eleven (11), East of the Willamette Meridian, Deschutes County, Oregon. PARCEL 2: The Southeast Quarter of the Northeast Quarter of the Southeast Quarter (SE1/4NE1/4SE1/4) of Section Sixteen (16). Township Sixteen (16) South, Range Eleven (11), East of the Willamette Meridian, Deschutes County, Oregon. L