2007-108-Order No. 2007-040 Recorded 2/15/2007NANCYUBLANKCOUNTY OFFICIAL ENSHIP, COUNTY CLERKDS U 7001-108
COMMISSIONERS' JOURNAL 02/15/2007 01;14;07 PM
IIIIIIII II~IIIIIIIIIIIIIIIII III
2007-308
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DESCHUTES COUNTY OFFICIAL RECORDS 200~~01~~1
REV D NANCY BLANKENSHIP, COUNTY CLERK
LEGAL COUNSEL II I II I II IIIIII II I II I I II I I I I III I II i I I II I IIIII I I III NO FEE
00528948200700085740080090
01/14/2007 04;24;55 PM
D-H37 Cnt=3 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
Regulations to Authorize Raymond and Sheila * ORDER NO. 2007-040
Sohn 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, Raymond and Sheila Sohn made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 18670 Tumalo Reservoir Road, Bend, 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 14, 2006, Raymond and Sheila Sohn filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 18670 Tumalo Reservoir Road, Bend, 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 January 26, 1977 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 Raymond and Sheila Sohn are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since January 26, 1977. The County finds and concludes as set forth
below.
PAGE 1 OF 3- ORDER No. 2007-040 (02/13/07)
5. The Board concurs with the Administrator's report that the current regulations, if applied to the
subject property, would not permit a partition of 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 partition 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 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.
8. The Board concurs with the Administrator's report that a partition of the property may be
feasible. However, these matters can and would be evaluated in connection with a land use
application. Despite the lack of a precise amount of reduction in value, the loss of the ability to
create additional parcels 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.
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 January 26, 1977. 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 Raymond and Sheila Sohn.
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. 2007-040 (02/13/07)
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 l2 Jeday of February, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-040 (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 - Raymond and Sheila Sohn (Claimants)
18670 Tumalo Reservoir Road, Bend, 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 14, 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 one lot with approximately fifteen acres in one tax lot, 16-11-34 TL
1300. The current zoning is EFU-TRB. The Claimant's desired use is to partition the property, a use
currently restricted by County land use regulations. Claimant alleges a reduction in value of approximately
Page 1 of 5 - Exhibit A - Order No. 2007-040
$200,000 due to the inability to partition as desired. The following is an analysis of the evidence in the
record on the elements of this Measure 37 claim.
Current Owner - Raymond and Sheila Sohn are the owners of the property comprising this claim: 16-11-
34, Tax lot 1300 and located at 18670 Tumalo Reservoir Road, Bend. Claimants submitted a copy of a
deed, dated January 26, 1977, showing them as grantees of the subject property. They are listed on
County records as the owners and have owned the property continuously.
Owners Date of Acquisition - January 26, 1977
The date of acquisition by the current owners 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 Raymond and Sheila Sohn obtained an interest in the property is January 26,
1977.
Restrictive Regulation - Zoning 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 Claimants have
identified the EFU, TRB and LM provisions of the county's ordinance and alleged the same have reduced
the value of their property by prohibiting their ability to partition the property into additional lots. The 1970
Comprehensive Plan contained minimum lot sizes of five acres per lot for this property. Complete zoning
was adopted in 1979, after the claimants acquired their interest in 1977. Therefore, the current zoning
does restrict claimants because this fifteen acre property could have been divided into three lots in 1977
by the partition process. While the county would need to evaluate any permit application that may be
submitted pursuant to regulations in effect at the time Claimant first acquired an interest in the property, it
Page 2 of 5 - Exhibit A - Order No. 2007-040
appears that in theory, based upon regulations in effect in 1977, that a partition could have been
approved.
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 applied for a partition 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 partition 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 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 the County's land use regulation.
• Claimant has demonstrated that based upon soils and topography that one dwelling has been
approved on the subject property.
• Claimant's property is located along a county road, so access is not an issue.
• Electricity is available to the property.
• Claimant has submitted neither an appraisal nor opinions from real estate professionals in an
attempt to show the diminution in value based upon limitations on the partition of the property.
Claimants' alleged reduction in value appears to be based upon the assumption that lots created by
partitioning the property are fully marketable and useable by others for development. Referring to a
recent opinion of the 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 partition 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 Claimant may be unreliable, if the
resulting lots are unusable by future owners, based upon their having to comply with zoning regulations in
place when such future owners acquire the property. If Claimants could have obtained approval of a
partition of the property on the date they first acquired an interest in the property, but not under current
zoning restrictions adopted after Claimants' acquisition date, and the resulting lots are fully marketable
and useable by future owners, then the value of Claimants' property for Measure 37 purposes would be
Page 3 of 5 - Exhibit A - Order No. 2007-040
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, Raymond and Sheila Sohn have continuously owned an interest in the property since 1977.
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 has submitted a claim pursuant to Measure 37 which demonstrates
eligibility for their use of the subject property based on nonexempt land use regulations in effect on
January 26, 1977, the date when Claimants first acquired an interest in the property. There is evidence in
the record that a partition 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
January 26, 1977, 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 Claimant's desired permit.
Cautionary Note on Measure 37
Page 4 of 5 - Exhibit A - Order No. 2007-040
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 5 of 5 - Exhibit A - Order No. 2007-040
EXHIBIT B
A tract of land containing 15.95 acres, sore or less, locat d
in the Southwest Quarter of the Southeast Quarter (SKI/4 SE /4)
of Section Thirty Tour (34), Township Sixteen (16) South,
Range Eleven (11) East of the Willamette Meridian, Deschutes
County, Oregon, being more particularly described as follows:
COMencing at the South One-Quarter corner of said Section
34; thence North 0011 23' 30" West along the North-South
center section line of said section $32.44 feet to the true
point of beginning of this deseriptioa; thence North
00' 23. 30" Best $01.11 feet, more or less to the Center
South 1/16th corner of said section; thence South 89° 59,
SS" east $38.93 feet, thence South 00' 24, 20" East
7'51.07 feet; thence South 89. 59' 55" East 481.87 feet to
a point on the East line of Said SW /4 SEZ/4 of said section;
thence South 00° 241 20" East along said line 50.00 feet;
thence leaving said line North 29° S9' SS" West 1320.99
feet to the point of beginning. To$odw with 11.5 aem ?=aio irriMias
Diarlet vates ssehte.
Subject to: All easements, restrictions and rights of
way of record.
130 p~~
0 ~~o