2007-101-Order No. 2007-039 Recorded 2/9/2007DESCHUTES
NANCY
COUNTY CLERKDS CJ 1041.141
COMMISSIONERS' JOURNAL
111111111101111111111111111111 it oil 02/09/2007 08;38;55 AM
2007-101
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REVIE
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LEGAL COUNSEL
DESCHUTES COUNTY OFFICIAL RECORDS 2007-08262
NANCY BLANKENSHIP, COUNTY CLERK NO FEE
00527528200700082820080084 01/08/2001 03;59;14 PM
D-M37 Cnt=1 Stn=4 TM
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 Jerol and D. Genevieve * ORDER NO. 2007-039
Andres 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, Jerol and D. Genevieve Andres made a timely demand for compensation under Measure 37
for a reduction in value to their property at 5353 SW 43rd Street, 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;
On August 25, 2006, Jerol and D. Genevieve Andres filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 5353 SW 43rd Street, Redmond, Oregon and is within Deschutes
County.
3. The County Administrator has recommended that the substantive land use regulations for the
subject property that were not already in effect until after May 15, 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 D. Genevieve Andres is the present
owner of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since May 15, 1989. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-039 (02/05/07)
5. The Board concurs with the Administrator's report that the current regulations, if applied to the
subject property, may not permit a farm or non-farm dwelling on the subject 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 farm or non-farm
dwelling on the subject property may 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 land use permit have reduced the value of the
subject property.
The Board concurs with the Administrator's report that building a farm or non-farm dwelling 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 build a dwelling 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,
D. Genevieve Andres, 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 May 15, 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 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 D.
Genevieve Andres.
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,
PAGE 2 of 3- ORDER No. 2007-039 (02/05/07)
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 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 5 ~ day of February, 2007.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
R. LUKE; VICE
TAMMY BABY, COMMASIONER
PAGE 3 OF 3- ORDER No. 2007-039 (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 - Jerol and D. Genevieve Andres (Claimants)
5353 SW 43rd Street, 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 18 acres in one tax lot. The current
zoning is EFU-TRB. The Claimants' desired use is to build a farm or non-farm dwelling on the property,
currently restricted by County land use regulations. Claimants allege a reduction in value of approximately
Page 1 of 4 - Exhibit A - Order No. 2007-039
$200,000 due to the inability to site a farm or non-farm dwelling as desired. The following is an analysis of
the evidence in the record on the elements of this Measure 37 claim.
Current Owner - D. Genevieve Andres is the owner of the property comprising this claim: 15S-13E-31,
Tax lot 700 and located at 5353 SW 43rd Street, Redmond. Claimant submitted a copy of an assignment
of land sales contract dated May 15, 1989, showing herself as grantee. A warranty deed completed the
Andres' fee simple ownership on May 18, 1989. A warranty deed dated October 11, 2004 conveyed the
property to D. Genevieve Andres, extinguishing Jerol Andres' property rights. She is listed on County
records as the owner and has owned the property continuously.
Owner Date of Acquisition - May 15, 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 for which there is documentation
showing D. Genevieve Andres obtained an interest in the property is May 15, 1989.
Restrictive Regulation - EFU Zoning Farm Dwelling Regulations.
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
not identified specific provisions of the county's ordinance, merely alleging that regulations have reduced
the value of her property by prohibiting them from building a farm or non-farm dwelling on the property.
EFU-20 zoning with a 20 acre minimum lot size in PL-15 was in force in 1989. However, regulations
relating to farm and non-farm dwellings have changed. These requirements were adopted after the
acquisition date of 1989 and would have the effect of restricting the siting of a farm or non-farm dwelling
on 18 acres of land zoned EFU. While the county would need to evaluate any permit application that may
Page 2 of 4 - Exhibit A - Order No. 2007-039
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 regulations in effect in 1989, that a farm or non-farm
dwelling may have been developable.
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 farm or non-farm dwelling resulting in the current zoning
being enforced on the subject property. Claimants have demonstrated that submitting an application for
such a land use 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 - $200,000 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 farm or non-farm dwelling would be approved.
• Claimant's property is located along SW 43rd Street, so access is not an issue.
• Other public utilities are available to the property.
• Claimant has not submitted an appraisal, or opinions from real estate professionals in an attempt
to show the diminution in value based upon limitations on the siting of a farm or non-farm
dwelling 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. "
Page 3 of 4 - Exhibit A - Order No. 2007-039
In this case, D. Genevieve Andres has continuously owned an interest in the property since 1989. A
f -v 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 her use of the subject property based on nonexempt land use regulations in effect on May
15, 1989, the date when Claimant first acquired an interest in the property. Claimant Jerol Andres no
longer owns a legal interest in the subject property. There is evidence in the record that a farm or non-
farm dwelling on 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
May 15, 1989, 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
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 4 of 4 - Exhibit A - Order No. 2007-039
EXHIBIT B
A parcel of land lying Southeast of the Old Dalles-California Highway, situate in the southern part of the Southeast Quartej
of the Northwest Quarter (SE'/. NW'/.) of Section Thirty One (31), Township Fifteen (15) South, Range Thirteen (13) Eas
of the Willamette Meridian, Deschutes County, Oregon and more particularly described as follows:
Beginning at the Center'/, comer of Section 31, being a bolt in the Pavement of SW 43rd Street: thence along the East-West
Center'/. Section Line, South 89° 47' 53" Wet 1320.78 feet to the Center West 1/16 Comer, a #4 plastic-capped steel rod;
thence along the West 1/16 Section Line, North 00° 12' 55" East 172.71 feet to the center of the Old Dalles-California
Highway; thence along the center of said Highway, North 371 16" 20:' East 668.44 feet to a point; thence North 891 47' 53"
East 915.60 feet to a point along the North-South Center'/ Section Line; thence along said Center''/. line, South 00° 0 F 23
West 704.21 feet to the POINT OF BEGINNING; EXCEPTING THERFROM that portion lying within the limits of the Of
DaIles-California Highway. ALSO EXCEPTING THEREFROM that portion lying with the limits of 43`d Street.
EXHIBIT B