2007-107-Order No. 2007-038 Recorded 2/15/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS CJ 2007mJ01
COMMISSIONERS' JOURNAL 01I15IZOO7 Oi;13;45 PM
110■11110 1101101 Mm 1..1......,, ..1.
2007-107
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REVIE D
L GAL C SEL
DESCHUTES COUNTY OFFICIAL RECORDS 2007-09573
NANCY BLANKENSHIP, COUNTY CLERK NO FEE
00528844200700093730100109 02I14I2007 04:24:55 PM
D-H37 Cnt=1 Stn=2 CE
This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
\0 Regulations to Authorize William and Deborah * ORDER NO.2007-038
Burk to Use the Subject Properties as Allowed
When They Acquired the Properties
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, William and Deborah Burk made a timely demand for compensation under Measure 37
for a reduction in value to their properties at 1149 NE Yucca Avenue and 4143 NE 170' Street, Redmond,
Oregon due to regulations which took effect after they acquired these properties, 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, William and Deborah Burk filed a Measure 37 claim with the Community
Development Department.
2. The properties are located at 1149 NE Yucca Avenue and 4143 NE 17t" Street (14-13-34, TL
100 and 208), Redmond, Oregon and are within Deschutes County.
The County Administrator has recommended that the nonexempt land use regulations for the
subject properties that were not already in effect until after July 20, 1973 for TL 100 and
December 1, 1981 for that portion of TL 208 acquired in 1981 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 properties described in Exhibit "B," having acquired an interest in them and
continuously owned it since July 20, 1973 for TL 100 and December 1, 1981 for a portion of TL
208. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-038 (02/13/07)
5. The Board concurs with the Administrator's report that the current regulations, if applied to the
subject properties, would not permit a land division of the subject properties. 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 of the
subject properties would be denied if the current regulations were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimants' properties 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 properties.
8. The Board concurs with the Administrator's report that land division of TL 100, as it was
configured in 1973, 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 create additional residential lots on the subject properties would be a
substantial amount of reduction in fair market value if the regulations at the time Claimants
acquired the properties 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 properties consistent with the substantive land use regulations in
effect at the time they first acquired the properties. That land use shall be permitted if the subject properties
fully comply with all substantive land use regulations in effect on July 20, 1973 for TL 100 and December 1,
1981 for a portion of TL 208. 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 and Deborah Burk.
Section 3. To the extent that any law, order, deed, agreement or other legally enforceable public or
private requirement provides that the subject properties 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 properties 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 properties
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 PROPERTIES. ALTHOUGH THE COUNTY WILL ACCEPT AND PROCESS
SUBSEQUENT LAND USE APPLICATIONS ASSOCIATED WITH THE SUBJECT PROPERTIES,
PAGE 2 of 3- ORDER No. 2007-038 (02/13/07)
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 PROPERTIES 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 properties for recording
purposes.
DATED this l 3 day of February, 2007.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
DF~PQNIS R. LUKE, DICE CHA
TA EY, COMM SIONER
PAGE 3 of 3- ORDER No. 2007-038 (02/13/07)
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 and Deborah Burk (Claimants)
1149 NE Yucca Avenue and 4143 NE 17th Street, 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 properties, 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 properties consist of two lots with approximately 100 acres in two separate tax lots.
The current zoning is EFU-TE. The Claimants' desired use is to build a subdivision on the properties
currently restricted by County land use regulations. Claimant alleges a reduction in value of approximately
Page 1 of 4 - Exhibit A - Order No. 2007-038
$1,200,000 due to the inability to develop a subdivision as desired. The following is an analysis of the
evidence in the record on the elements of this Measure 37 claim.
Current Owner - William and Deborah Burk are the owners of the properties comprising this claim: 14-13-
34, Tax lots 100 and 208 and located at 1149 NE Yucca Avenue and 4143 NE 17th Street, respectively,
Redmond. Claimants submitted copies of two land sales contracts, the first dated July 20, 1973, showing
Claimants as purchasers of TL 100 and the second dated December 1, 1981 show Claimants as
purchasers of TL 208. They are listed on County records as the owners and except for a portion of TL
208 that was partitioned and sold, have owned the properties continuously.
Owner Dates of Acquisition - July 20, 1973 (TL 100), December 1, 1981 (TL 208)
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 William and Deborah Burk obtained an interest in TL 100 is July 20, 1973 and in TL 208 is
December 1, 1981.
In 2002 Claimants obtained a lot line adjustment between the subject properties under which TL 100 was
reduced in size and TL 208 was correspondingly increased. (See: County file no. LL-02-65) It was also
at this time that a portion of TL 208 was partitioned to create a separate ten-acre parcel, TL 212, which
was sold and is not part of this claim. (See: Partition plat no. 2003-29 and County file no. MP-02-45).
For purposes of waiver of County land use regulations, the current TL 100 and a portion of the current TL
208 will carry an acquisition date of 1973. The original TL 208, not including the partitioned TL 212, will
carry an acquisition date of 1981.
Restrictive Regulation -Zoning and Land division regulations.
Page 2 of 4 - Exhibit A - Order No. 2007-038
Under the terms of the ordinance, the claimants must identify County land use regulations that prevent
the claimants from using the properties in a way that they otherwise could have used the properties at the
time the properties were acquired, and thus reduce the value of the claimants' properties. The Claimants
have not identified specific provisions of the county's ordinance as having reduced the value of their
properties by prohibiting land divisions.
However, in 1973 the A-1 zoning for TL 100 would have permitted five-acre lots on that 60.5 acres. In
1981, the zoning in PL-15 for TL 208 was EFU-20, permitting twenty-acre lots on that 40 acres.
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 applied for a land division on Tax Lot 208 resulting in the current zoning being
enforced on the subject properties. (See County fil Nos. MP-02-45/FPA-03-7). Claimants have
demonstrated that submitting an application for the desired land division would be futile. This Report
confirms that such an application for the desired land divisions 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 - $1,200,000 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 properties resulting from the enforcement of the County's land
use regulation.
• Claimants have asserted that a land division would be approved at the time of acquisition of the
properties.
• Claimants' properties are located along NE Yucca Avenue and NE 17th Street, so access is not
an issue.
• Other public utilities may be available to the properties.
• Claimants have submitted an appraisal, or opinions from real estate professionals in an attempt
to show the diminution in value based upon land use regulations restricting land division of the
properties.
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 properties:
"(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. 2007-038
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, William and Deborah Burk have continuously owned an interest in the properties since 1973
for TL 100 and 1981 for TL 208. 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 properties.
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 properties have submitted a claim pursuant to Measure 37 which
demonstrates eligibility for its use of the subject properties based on nonexempt land use regulations in
effect on July 20, 1973 for TL 100 and a portion of TL 208 and December 1, 1981 for the balance of TL
208, the dates when Claimants first acquired an interest in each property. There is evidence in the record
that a land division on TL 100, as it was configured in 1973, 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
July 20, 1973 for TL 100 and a portion of TL 208 and December 1, 1981 for the balance of TL 208 to
allow the Claimants to use the properties in a manner permitted at the time they acquired each property.
This waiver is not a development permit. By granting a waiver, the County does not commit itself to
approving Claimants' desired use.
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. 2007-038
1973 Acquisition Parcel
The East Half of the Northeast Quarter (E1/2NE1/4) of Section Thirty-four
(34), Township Fourteen (14) South, Range Thirteen (13) East of the
Willamette Meridian, excepting right of way over and across said premises,
heretofore conveyed to the City of Prineville.
1981 Acquisition Parcel
A portion of the W1/2NE1/4 of Section 34, Township 14 South, Range 13 East
of the Willamette Meridian, Deschutes County, Oregon, lying south of the
railroad:
A parcel of land situate in a portion of the W1/2NE1/4 of Section 34,
T. 14 S-., R. 13 E.W.M., Deschutes County, Oregon, lying southerly of the
Prineville Railroad, and now to be more particularly described as follows:
Commencing at an axle at the West 1/4 corner of said Section 34, T. 14 S.,
R. 13 E.W.M., the Initial Point; thence S 89°37'54" E along the southerly
line of the North 1/2 of said Section 34 - 2640.27 feet to a 1" pipe at
the center 1/4 corner; thence S 89°37'54" E along said centerline of
section - 732.91 feet to a 112" pipe and the true Point of Beginning;
thence N 00°13'14" W - 587.74 feet to a 1/2" pipe; thence N 89°37'54" W -
441.69 feet to a 1/2" pipe; thence N 00°22'06' E 604.11 feet to a 1/2"
pipe, a point witnessed by a 1/2" pipe which bears' S 00°22'06" W - 57.36
feet; thence N 58°08'56" E along the centerline of the Prineville Railroad
- 497.48 feet to the beginning of a curve; thence 510.49 feet along the
arc of a 1970.270 ft. radius curve left of said Railroad centerline
forming a delta angle of 14°50'43" and a long chord bearing N 50°43'34" E
- 509i07 feet to the end of said curve, the Point of Intersection of said
curve monumented pith a 1/2" pin; thence N 43°18'13" E along said Railroad
centerline - 341.43 feet to a 1/2" pipe; thence S 00°43'02" W along the
easterly line of 4aid W1/2 of said NE1/4 - 2031.85 feet to the C-E 1/16th
corner; thence N 99°37'54" W along the southerly line of said NE1/4 -
585.35 feet to the Point of Beginning;
EXHIBIT B
Legal Description of tax lot 212, which was part of the 1981 acquistion but conveyed
in 2002 after a lot line adjustment.
Description of a parcel of land situate in a portion of the
NE1/4 of Section 34, T.14S., R.13E., W.M., Deschutes County,
Oregon, more particularly described as follows:
Commencing at the a 3-1/4" aluminum cap monumenting the East
1/4 corner of Section 34, T.14S., R.13E., W.M., the Initial
Point; thence N89037'54"W along the South line of the NE1/4
of said Section - 1783.43 feet to the centerline of Central
Oregon Irrigation District's (C.O.I.D.) Lateral "G" and the
true POINT OF BEGINNING; thence N89037'54"W along said South
line - 120.19 feet to a 1/2" pipe on the West line of a
parcel of land described in a deed recorded Vol. 208, Page
0675 of Deschutes County Official Records, from which a 1"
pipe monumenting the Center 1/4 Corner bears N89037154"W -
732.89 feet; thence N00011153"W along the boundary of said
parcel - 587.74 feet; thence N89037'54"W along the boundary
of said parcel - 441.69 feet; thence N0002312011E along the
boundary of said parcel - 388.00 feet to a 1/2" pipe with
plastic cap marked "Povey & Assoc." (hereafter called
"cap") ; thence S89037154"E - 389.18 feet to the centerline
of said Lateral "G"; thence 511041'00"E along said
centerline - 44.26 feet; thence 35.72 feet along the arc of
a 100.00 foot radius curve (concave East) of said
centerline, forming a central.angle of 20028100" and a long
chord bearing 52105510011E - 35.53 feet; thence S32009100"E
along said centerline - 96.00 feet; thence 55.33 feet along
the arc of a 200.00 foot radius curve (concave West) of said
centerline, forming a central angle of 15051'00" and a long
chord bearing 524013'30"E - 55.15 feet; thence S16018'00"E
along said centerline - 38.00 feet; thence 24.03 feet along
the arc of a 100.00 foot radius curve (concave West) of said
center-line, forming a central angle of 13046100" and a long
chord bearing S09025'00"E - 23.97 feet; thence S02032'00"E
along said centerline - 162.00 feet; thence S25004100"W
along said centerline - 71.92 feet; thence 510055100"W along
said centerline - 80.04 feet; thence 505017'00"W along said
centerline - 16.11 feet to the East line of the West 20 feet
of said Vol. 208, Page 0675 .parcel; thence S00011!53"E along
said East line - 179.57 feet to the centerline of said
C.O.I.D. Lateral; thence 516044'00"E along said centerline -
109.89 feet; thence 59.62 feet along the arc of a 150.00
foot radius curve (concave East) of said centerline, forming
a central angle of 22046126" and a long chord bearing
S28006159"E 59.23 feet; thence S39030'00"E along said
centerline - 65.00 feet to the true POINT OF BEGINNING.
1 OF 2 DESCRIPTION
EXHIBIT B - 2
Legend
1981 Acquisition Date
® 1973 Acquisition Date
212
EXHIBIT B-3