2007-106-Order No. 2007-011 Recorded 2/15/2007' DESCHUTES COUNTY OFFICIAL RECORDS CJ ~041'i06
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL
111111[ 0Z/15/Z00? Q1;13;Z8 PM
III) III
2 106
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 and Page ,
or as Fee Number
WLEGCOUNTY OFFICIAL
AL OUNSEL
NANCYUBLANKENSHIP, COUNTY CLERKDS 100109571
NO FEE
00328938200700090720080086-
02/14/2007 04;24;55 PM
D-M37 Cnlsi Stn=2 CE
This is a no fee document,
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESC14UTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Lonnie and Laural Hill
to Use the Subject Property as Allowed When
They Acquired the Property
* ORDER NO. 2007-011
*
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, Lonnie and Laural Hill made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 5766 SW Coyote Ave., 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 September 29, 2006, Lonnie and Laural Hill filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 5766 SW Coyote Avenue, Redmond, Oregon and is within Deschutes
County.
3. The County Administrator has recommended that the regulations for the subject property that
were not already in effect until after July 13, 1966, 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 Lonnie and Laural Hill are the present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since July 13, 1966. The County finds and concludes as set forth below.
5. The Board concurs with the Administrator's report that the current minimum lot size
regulations, if applied to the subject property, would not permit a subdivision of the subject
PAGE 1 of 3- ORDER No. 2007-011 (02/13/07)
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 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 land use permit have reduced the value of the
subject property.
8. The Board concurs with the Administrator's report that 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
subdivide 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 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
property 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 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 July 13, 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 Lonnie and Laural Hill.
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
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS SPECIFIED ABOVE. DESCHUTES
PAGE 2 of 3- ORDER No. 2007-011 (02/13/07)
COUNTY LACKS THE AUTHORITY TO WANE 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.
ATTEST:
L
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-011 (02/13/07)
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
From: David Kanner, County Administrator
RE: Measure 37 Claim - Lonnie and Laural Hill (Claimant)
5766 SW Covote Avenue. Redmond. OR
Introduction
DATE: February 13, 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 September 29, 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 3.7 acres. The current zoning is EFLI-
TRB. The Claimants' desired use is to subdivide the property, currently restricted by County land use
regulations. Claimants allege a reduction in value of approximately $400,000 due to the inability to
Page 1 of 4 - Exhibit A - Order No. 2007-011
subdivide as desired. The following is an analysis of the evidence in the record on the elements of this
Measure 37 claim.
Current Owner - Lonnie and Laural Hill are the owners of the property comprising this claim: 15-12-25,
Tax lot 2000 located at 5766 SW Coyote Avenue, Redmond. Claimants submitted a copy of a deed,
dated July 13, 1966, showing them as grantees. They are listed on County records as the owners and
have owned the property continuously.
Owner Date of Acquisition - July 13, 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
encourage waivers of local and state land use regulations. The first date for which there is documentation
showing Lonnie and Laural Hill obtained an interest in the property is July 13, 1966.
Restrictive Regulation - Minimum Lot Size Regulations.
Under the terms of the ordinance, the claimants must identify County land use regulations that prevent
the claimant 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 but have alleged that current regulations have
reduced the value of their property by prohibiting their ability to divide the property into smaller lots.
There were no minimum lot size regulations in effect in 1966.
This requirement was adopted after the acquisition date of 1966 and would have the effect of restricting
the subdivision of the property. 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 regulations in effect in 1966, that a subdivision could have
been permitted at that time.
Page 2 of 4 - Exhibit A - Order No. 2007-011
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 subdivision 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 subdivision 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 - $400,000 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 would be approved.
• Claimants' property is located along Coyote Avenue so access may not 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.
• Claimant's 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 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. If Claimants could have obtained approval of a subdivision of 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,
Page 3 of 4 - Exhibit A - Order No. 2007-011
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, Lonnie and Laural Hill 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 owners of the property have 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 July 13,
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 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
July 13, 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
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. 2007-011
and State of uregon, UVOLA'l.,au
IN TOWNSHIP 15 SOUTH, RANGE 12 EAST OF THE WILLAMETTE MERIDIAN, Deschutes
County, Oregon:
Section 25: A portion of the SW1/4 SE1/4 more particularly described as
follows: Beginning at a point marked by a 5/8 inch reinforced bar. on the
South right of way line of the Cox Road, which point is 40 feet Easterly
of the West line of said Sfl1/4 SE1/4; thence Southerly 787 feet along a
line parallel to and 40 feet East of the West line of said Sil1/4 SE1/4;
thence Easterly along a line parallel to the North line of said SW1 4
SE1/4 a distance of 21 feet, more or less, to the centerline of Lateral
B-2 of the Pilot Butte Canal of the Central Oregon Irrigation District;
thence Northeasterly along the center line of said Lateral B-2 to the
intersection thereof with the South boundary line of the Cox Road; thence
Westerly 248 feet, more or less, along the South boundary line of said
Cox Road to the point of beginning;
TOGETHER with an appurtenant water right of two (2) acres under the system
of the Central Oregon Irrigation District.
SUBJECT to existing roads, highways and reservations contained in state
deeds and federal patents, and further subject to taxes for the tax year
1966-67 not now due and payable.
AND ALSO an easement and right of way for the delivery of grantee's
Central Oregon Irrigation District water from the existing farm ditch
situate on grantor's land lying westerly of said sub-lateral B-2 in said
SWl/4 SE1/4, which farm ditch lies approximately parallel to said sub-
lateral B-2 and flows in a generally northeasterly direction. Said farm
ditch nuns from grantor's delivery wier on said sub-lateral B-2 in said
SB1/4 SE1/4 and proceeds to a division point in said SW1/4 SE1/4 from
which one farm ditch flows southwesterly and the farm ditch upon which
this easement is located flows northeasterly. Grantee shall have the right
to select the point from which he shall take delivery of water from said
farm ditch, which point shall be downstream from the division point last
above mentioned. Grantee shall have the right to take his water from
such farm ditch by pump only and shall have the right to maintain a
delivery pipe from said pump to the premises above described in the most
direct and practicable route. After said delivery point shall have been
ascertained and located and the pump and pipe line installed, grantee shall
not thereafter have the right to change the location of said point of
delivery. Grantee shall have the right to go upon grantor's premises
over said easement for the purpose of repairing, maintaining and operating
said pump and pipe line, repairing at his own expense all damages done to
said premises and restoring the same to their original condition. Delivery
~a
of said water shall be on a rotation basis. "
EXHIBIT B