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2007-142-Order No. 2007-045 Recorded 3/2/2007FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKDS Q 200701T2 COMMISSIONERS' JOURNAL 03/02/2007 09;37;55 AM 111ill 20-14 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 or as Fee Number and Page , COUNTY REVI D NANCYUBLANKENSHIP,F000NTY CLERKDS 2001-11578 LEGAL COUNSEL IIIIIIVIIIII IIIIIII IIIIIIIIII IIIIII NO FEE IIIIIIII II III 00532174200700125780090091 03/01/200 02:58:23 PM D-M37 Cnt=1 Stn=2 is 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 Steven Glover to Use the Subject Property as Allowed When He Acquired the Property * ORDER NO. 2007-045 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, Steven Glover made a timely demand for compensation under Measure 37 for a reduction in value to its property at 71150 NW Lower Bridge Way, Terrebonne, Oregon due to regulations which took effect after he 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 September 25, 2006, Steven Glover filed a Measure 37 claim with the Community Development Department. 2. The property is located at 71150 NW Lower Bridge Way, Terrebonne, Oregon and is within Deschutes County. 3. The County Administrator has recommended that the zoning regulations for the subject property that were not already in effect until after February 20, 1979. 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 Steven Glover is the present owner of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since February 20, 1979. The County finds and concludes as set forth below. 5. The Board concurs with the Administrator's report that the current land use regulations, EFU- LB, if applied to the subject property, would not permit a subdivision to create 5-acre lots. The current regulations are land use regulations which are not exempt from Measure 37 claims. PAGE 1 of 3- ORDER No. 2007-045 (02/13/07) 6. The Board concurs with the Administrator's report that an application for a subdivision to create 5-acre lots would be denied if the current zoning 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 land divisions and development applications have reduced the value of the subject property. The Board concurs with the Administrator's report that there is some evidence that domestic water, sanitary sewer and access for the desired use on the subject property are feasible. However, these matters can and would be evaluated in connection with a development permit application. Despite the lack of a precise amount of reduction in value, the loss of the ability to create additional lots 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 that development; 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 may apply for a use of the subject property consistent with the substantive land use regulations in effect at the time he 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 February 20, 1979. 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 Steven Glover. 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 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, PAGE 2 of 3- ORDER No. 2007-045 (02/13/07) 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 9 it day of February, 2007. ATTEST: BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON MICH 7~1"Y, Cr DENNIS R. L Recording Secretary T ANEY, CO SSIONER PAGE 3 of 3- ORDER No. 2007-045 (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 DATE: February 13, 2007 From: David Kanner, County Administrator RE: Measure 37 Claim - Steven Glover (Claimant) 71150 NW Lower Bridge Way, Terrebonne, OR Introduction 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 25, 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 tax lot of approximately 20 acres. The current zoning is EFU- LB. The Claimant's desired use is a five-acre four-lot subdivision and Claimant alleges a reduction in Page 1 of 5 - Exhibit A - Order No. 2007-045 value of approximately $600,000 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 - Steven Glover is the owner of the parcel comprising this claim: 14-12-00 Tax lot 1201 located at 71150 NW Lower Bridge Way, Terrebonne. Claimant acquired an interest in the property by warranty deed on February 20, 1979. Claimant first acquired an undivided one-half interest in a forty-acre parcel that included the subject twenty acres. The forty-acre parcel was divided in half and Claimant acquired a fee interest in the subject twenty acres in 1980. Thereafter, a half interest was conveyed to Dennis McCay in 1980 and that half interest was reconveyed to claimant in a 1984 deed. There is also evidence in the record of a legal partition of the original forty acres. (See County file No. MP-79-145 dated 11 December 1979). However, claimant's interest in the subject twenty-acre property is continuous and he is identified as the current owner in County tax records. Owner Date of Acquisition - February 20, 1979 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 (1), does not distinguish between the acquisition date of an owner and that of a family member to determine the extent of reduction in value for compensation. Section (3)(E) exempts from the Measure 37 claim those regulations which were enacted prior to the acquisition of the property by the owner or family member of the owner who also owned the subject property. This distinction in the acquisition dates is due to the differences in remedies available under Measure 37, payment of compensation versus issuing a waiver. If a public entity chooses not to apply the land use regulations, rather than compensate an owner for the value lost to the regulations, the public entity is limited to permitting the owner to use the property only for those uses that were permitted at the time the owner acquired the property. Pursuant to Section (8), the owner is entitled to a waiver of only those land use regulations that were in effect at the time the owner (not a family member of the owner) gained an interest in the property. 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, often 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. Page 2 of 5 - Exhibit A - Order No. 2007-045 The first date for which there is documentation showing Steven Glover obtained an interest in the property is February 20, 1979. Restrictive Regulation - EFU-LB. 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 identified the EFU-LB zoning as reducing the value of their property by inhibiting development of a subdivision. In February, 1979 the subject property zoning permitted five-acre lots. It appears that, based upon zoning in effect in 1979, that a subdivision of the property would have been allowed. 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. Claimant has not applied for a subdivision of the property resulting in the current zoning being enforced on the subject property. Claimant has not demonstrated that submitting an application for such a land division would be futile. However, this Report confirms that such an application for the desired subdivision would violate the current zoning and be denied. Therefore, the intent of DCC 14.10.040(G) has been met for this claim. Reduction in Value - $600,000 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 asserted that domestic water wells and septic approvals are available for the desired subdivision. • The property fronts a paved public road for access to a subdivision. • Claimant has submitted an appraisal of the current value of the property if a subdivision to create five-acre lots was allowed. Opinion evidence of a $300,000 sales price, less $100,000 development costs for three additional lots yielded the $600,000 estimated reduction in value. 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 Page 3 of 5 - Exhibit A - Order No. 2007-045 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 Claimant 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 Claimant could have obtained approval of a subdivision of the property on the date he 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, 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, Steven Glover has continuously owned an interest in the property since February, 1979. A claimant who receives a waiver must use the current process to seek the needed development permits based on the zoning in place at the time the current owners 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 Steven Glover, 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 February 20, 1979, the date when Claimant first acquired an interest in the property. There is Page 4 of 5 - Exhibit A - Order No. 2007-045 some evidence in the record that some additional development on the subject property may be feasible for available domestic water, sanitary waste disposal and road access. 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 February 20, 1979, to allow the Claimant to use the property in a manner permitted at the time he 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 use. Cautionary Note on Measure 37 Claimant 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. 2007-045 THE WEST %2 OF THE SOUTH 1/2 OF THE NORTHWEST/40F SECTION 8, TOWNSHIP 14 SOUTH, RANGE 12 EAST OF THE WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON. EXHIBIT B