2007-100-Order No. 2007-004 Recorded 2/9/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKS ICJ 001'+OO
COMMISSIONERS' JOURNAL
11511911 , all 02/09/2007 08:38:55 AM
2007-100
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0\ BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize William H. Young, Gail * ORDER NO. 2007-004
Lynch and Carol and David McBride 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, claimants made a timely demand for compensation under Measure 37 for a reduction in
value to their property at 21-10-33B-2000, 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 25, 2006, William H. Young, Gail Lynch, David and Carol McBride filed a Measure
37 claim with the Community Development Department.
2. The property is located at 21-10-33B-2000, Redmond, Oregon and is within Deschutes County.
3. The County Administrator has recommended that the nonexempt land use regulations for the
subject property that were not already in effect until after April 3, 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 Claimants are the present owners of the
subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since April 3, 1966. The County finds and concludes as set forth below.
5. The Board concurs with the Administrator's report that the current nonexempt land use
regulations, if applied to the subject property, would not permit a land division on the subject
PAGE 1 of 3- ORDER No. 2007-004 (02/05/07)
property. 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 land division 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.
The Board concurs with the Administrator's report that there is no evidence which demonstrates
that the current procedural regulations for a land use permit have reduced the value of the
subject property.
The Board concurs with the Administrator's report that a land division 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
divide the subject property into additional lots 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.
Claimants 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 April 3, 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 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 William H. Young, Gail Lynch, David
and Carol McBride.
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. 2007-004 (02/05/07)
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 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 February, 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-004 (02/05/07)
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 - William H. Young, David and Carol McBride,
Gail Lynch (Claimants)
NO STREET ADDRESS. Redmond. OR
Introduction
DATE: February 5, 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 25, 2006, when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. The property consists of one lot with approximately 4.55 acres in one tax lot. The current
zoning is RR-10. The Claimants' desired use is to divide the property, currently restricted by County land
Page 1 of 5 - Exhibit A - Order No. 2007-004
use regulations. Claimants allege a reduction in value of approximately $250,000 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 - William H. Young, Revocable Trust, David and Carol McBride and Gail Lynch are the
owners of the property comprising this claim: 21-10-33B, Tax lot 2000, Redmond. Claimants submitted a
copy of a warranty deed, dated April 3, 1966, showing all the individuals as grantees. They are listed on
County records as the owners and have owned the property continuously. For William H. Young, the
form of ownership began as an individual grantee in 1966 and by the Trust Agreement dated April 13,
2004 changed to Trustee of the William H. Young Revocable Trust. The original deed described as about
ten acres named three husband and wife couples as grantees. Claimants have provided death
certificates for one husband, Wesley E. Lynch in 2002 and one wife, Roberta K. Young in 2003. The
surviving original owners retain ownership of about 4-1/2 acres of the original site.
For purposes of Measure 37 claims, the County has interpreted the present "owner" as a claimant having
any interest" in the title of the subject property. While a trust is a separate legal entity, a review of the
Trust Agreement in the record indicates that William H. Young is both the creator of the trust and its
trustee. Most importantly, Article 2 of the Trust authorizes William H. Young to revoke or amend the
Agreement at any time, including disposal of any real property. In addition, ORS 130.720 and 130.725
authorizes the trustee of a revocable trust to exercise all powers over the trust property that an "owner
has over individually owned property." Therefore, despite the change in the form of ownership in 2004,
Claimant William H. Young has had an uninterrupted ownership interest since 1966.
Owner Date of Acquisition - April 3, 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
Page 2 of 5 - Exhibit A - Order No. 2007-004
encourage waivers of local and state land use regulations. The first date for which there is documentation
showing all claimants obtained an interest in the property is April 3, 1966.
Restrictive Regulation - Zoning and Minimum Lot Size.
Under the terms of the ordinance, the claimant must identify County land use regulations that prevent the
claimants from using the property in a way that they otherwise could have used the property at the time
the property was acquired, and thus reduce the value of the claimants' property. The Claimants have not
identified specific provisions of the county's ordinance and alleged the adoption of any regulations have
reduced the value of their property by prohibiting division of the property.
All requirements were adopted after the acquisition date of 1966 and would have the effect of restricting a
land division of the subject property. 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 County land use regulations in effect in 1966,
that a division of the property may have been allowable at that time.
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 land division 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 land division 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 - $250,000 alleged on Claim Form
The ordinance requires that the Claimants 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 asserted that a land division of the subject property would be approved.
• Claimants' property is not located along an identified county road, so access may be an issue.
• Other public utilities may be available to the property.
• Claimants have not submitted an appraisal, or opinions from real estate professionals in an
attempt to show the diminution in value based upon limitations on land division of the property.
Page 3 of 5 - Exhibit A - Order No. 2007-004
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, Claimants 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 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 3,
1966, the date when Claimants first acquired an interest in the property. There is evidence in the record
that a land division of 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 3, 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 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
Page 4 of 5 - Exhibit A - Order No. 2007-004
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. 2007-004
NW 1/4 of SE 1/a of the NW 1/4 of Sec 33
Twnshp 21 S; Range I OE
Minus 60 ft. Roadway through center of tract, from north to south
EXHIBIT B