2007-143-Order No. 2007-046 Recorded 3/2/2007NANCYUBLANKCOUNTY OFFICIAL ENSHIP, COUNTY CLERKDS U 2001.143
COMMISSIONERS' JOURNAL 1IM11011 INN Elm 03/02/2007 09:37:55 AM
2007-143
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statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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T /_I
REV D DESCHUTES COUNTY OFFICIAL RECORDS 2001
4P NANCY BLANKENSHIP, COUNTY CLERK '12519
LEGAL OUNSEL 111111111111111 IN I I 1111111111111 NO FEE
00532177200700325780100101 03/01/2007 02:58:23 PM
D-M37 Cnt=1 Stna2 JS
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 William R. Tye to Use * ORDER NO. 2007-046
the Subject Property as Allowed When He
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, William R. Tye made a timely demand for compensation under Measure 37 for a reduction
in value to his property at 25840 Alfalfa Market Road, Bend, 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 October 6, 2006, William R. Tye filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 25840 Alfalfa Market Road, Bend, 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 June 7, 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 William R. Tye is the present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since June 7, 1979. The County finds and concludes as set forth below.
The Board concurs with the Administrator's report that the current land use regulations,
EFU/AL, if applied to the subject property, would not permit a subdivision to create five-acre
PAGE 1 of 3- ORDER No. 2007-046 (02/26/07)
lots. 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 to create
five-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 June 7, 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 William R. Tye.
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. 2007-046 (02/26/07)
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. A
DATED this day of February, 2007.
ATTEST:
tn4~ 61,A-
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-046 (02/26/07)
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 - William R. Tye (Claimant)
25840 Alfalfa Market Road, Bend, OR
Introduction
DATE: February 26, 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 October 6, 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 two tax lots with approximately 60 acres in total. The current
zoning is EFU-AL. The Claimant's desired use is a 6-lot subdivision and Claimant alleges a reduction in
Page 1 of 5 - Exhibit A - Order No. 2007-046
value of approximately $2,538,000 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 - William R. Tye is the owner of the parcels comprising this claim: 17-14-22 Tax lots 1300
and 1302 located at 25840 Alfalfa Market Road, Bend. Claimant first acquired an ownership interest in
the property by a Sales Agreement executed June 7, 1979. Claimant took possession of the subject
property at that time. Subsequently, the down payment was made and monthly payments began
November 1, 1979, consistent with the terms of a Land Sales Contract executed December 3, 1979. In
June 1979, Deschutes County Zoning Ordinance No. PL-5 was in effect. The zoning applicable to the
subject property would have been A-1 with a five-acre minimum lot size until November 1, 1979 when PL-
15 became effective.
Owner Date of Acquisition - June 7, 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. 2007-046
The first date for which there is documentation showing William R. Tye obtained an interest in the
property is June 7, 1979.
Restrictive Regulation - EFU/AL.
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/AL zoning as reducing the value of his property by inhibiting development of a
subdivision.
It appears that, based upon zoning in effect in June, 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 - $2,538,000 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 is available from individual wells for the desired
subdivision.
• Claimant has asserted that an on-site septic system is or would be feasible for the desired
subdivision.
• Claimant has asserted that electricity and telephone service are available.
• Claimant has have submitted a real estate broker's opinion of $3,000,000 "gross (sales) value" of
the property if a subdivision to create six lots was allowed. Estimated development, sales,
engineering costs yielded the claim of $2,538,000 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
Page 3 of 5 - Exhibit A - Order No. 2007-046
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 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 Claimants' 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, William R. Tye has continuously owned an interest in the property since 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
Page 4 of 5 - Exhibit A - Order No. 2007-046
William R. Tye, 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 June 7, 1979, the date when Claimant first acquired an interest in the property. There is 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
June 7, 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. 2007-046
PROPERTY DESCRIPTION
TAX LOT 1300
A tract of land located in the East one-half of the Southwest one-quarter of the Southwest
one-quarter and in the Southeast one-quarter of the Southwest one-quarter of Section 22,
Township 17 South, Range 14 East, of the Willamette Meridian, Deschutes County,.
Oregon, being more particularly described as follows:
Commencing at the South one-quarter corner of said Section 22; thence
North 00011'40" East 30.03 feet to a point on the Northerly right of way
of Alfalfa Market Road and the TRUE POINT OF BEGINNING; thence
along said Northerly right of way North 87022'25" West 1322.77 feet;
thence continuing along said right of way North 87122'25" West 60.00
feet; thence leaving said right of way North 02°37'35" East 20.00 feet;
thence North 45°00'00" East 40.84 feet; thence North 00°10'23" West
404.25 feet; thence North 49°29'46" West 268.14 feet; thence West
222.73 feet; thence North 236.77 feet; thence East 201.82 feet; thence
North 21.34 feet; thence East 100.91 feet; thence South 109.32 feet;
thence West 72.13'feet; thence South 129.21 feet; thence South 49°29'46"
East 284.06 feet; thence North 00°10'23 West 834.20 feet; thence South
871111'06" East 1331.29 feet; thence South 00°11'40" West 1294.08 feet
to the TRUE POINT OF BEGINNING.
Containing 41.26 acres, more or less.
Exhibit
PROPERTY DESCRIPTION
TAX LOT 1302
A tract of land located in the East one-half of the Southwest one-quarter of the Southwest
one-quarter of Section 22, Township 17 South, Range 14 East, of the Willamette
Meridian, Deschutes County, Oregon, being more particularly described as follows:
Couunencing at the Southwest corner of said Section 22; thence South
87°22'25" East 1322.58 feet along the South Be of said Section 22;
thence leaving said South line North 00°10'23" West 30.04 feet to a point
on the Northerly right of way of Alfalfa Market Road; thence along said
Northerly right of way North 87°22'25" West 50.00 feet to the TRUE.
POINT OFBEGINNING; thence leaving said right of way North
02°37135" East 20.00 feet; thence North 45'00'00" East 40.84 feet; thence
North 00010'23" West 404.25 feet; thence North 49°29'46" West 268.14
feet; thence West 222.73 feet; thence North 236.77 feet; thence East
201.82 feet; thence North 21.34 feet; thence East 100.91 feet; thence
South 109.32 feet; thence West 72.13 feet; thence South 129.21 feet;
thence South 49°29'46" East 284.06 feet; thence North 00°10'23 West
834.20 feet; thence North 87°11'06" West 665.65 feet; thence South
00021'21" East 1301.24 feet to a point on the Northerly right of way of
Alfalfa Market Road; thence along said Northerly right of way South
87°22'25" East 611.38 feet to the TRUE POINT OF BEGINNING.
Containing 17.97 acres, more or less.
3t 2