2007-144-Order No. 2007-047 Recorded 3/2/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS C 2007-144
COMMISSIONERS' JOURNAL 03/01/2007 09;37;55 AM
Ili I Ili 12007-3Do 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
COUNTY OFFICIAL
REVIE
NANCYUBLANKENSHIP, COUNTY CLERKS 2007.12580
GAL OUNSEL VIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE
E IIIIIIII
00532178200700125800090093
03/01/2007 02:58:23 PM
D-M37 Cnt=1 Stn=2 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 Robert E. Burnside to
Use the Subject Property as Allowed When He
Acquired the Property
* ORDER NO. 2007-047
*
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, Robert E. Burnside made a timely demand for compensation under Measure 37 for a
reduction in value to his property at 22705 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 10, 2006, Robert E. Burnside filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 22705 Alfalfa Market Road in Bend, Oregon and is within Deschutes
County.
The County Administrator has recommended that the nonexempt zoning regulations for the
subject property that were not already in effect until after October 3, 1973 for TL 1000 and
March 8, 1977 for TL 101. 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 Robert E. Burnside is the present owner
of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since October 3, 1973 for TL 1000 and March 8, 1977 for TL 101. The
County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-047 (02/26/07)
5. The Board concurs with the Administrator's report that the current land use regulations, EFU-
TRB, if applied to the subject property, would not permit a subdivision to create five-acre 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 October 3, 1973 for TL 1000 and March 8, 1977 for TL 101.
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 Robert E. Burnside.
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
PAGE 2 of 3- ORDER No. 2007-047 (02/26/07)
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,
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. ,Pk
DATED this~4 % day of February, 2007.
ATTEST:
lNu'wi K&-k~
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-047 (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.orq
TO: Board of County Commissioners
From: David Kanner, County Administrator
RE: Measure 37 Claim - Robert E. Burnside (Claimant)
22705 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 10, 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 two tax lots with approximately 60 acres in total. The current
zoning is EFU-TRB. The Claimant's desired use is an 11-lot subdivision and Claimant alleges a reduction
Page 1 of 5 - Exhibit A - Order No. 2007-047
in value of approximately $2,178,000 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 - Robert E. Burnside is the owner of the parcels comprising this claim: 17-13-32 Tax lots
1000 and 101 located at 22705 Alfalfa Market Road, Bend. Claimant first acquired an interest in TL 1000
by Land Sale Contract on October 3, 1973 and in TL 101 on March 8, 1977.
Owner Dates of Acquisition - October 3, 1973 for TL 1000; March 8, 1977 for TL 101.
The dates of acquisition by the current owner are the relevant dates 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.
The first date for which there is documentation showing Robert E. Burnside obtained an interest in the
property is October 3, 1973 for TL 1000 and March 8, 1977 for TL 101.
Restrictive Regulation - EFU-TRB.
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
Page 2 of 5 - Exhibit A - Order No. 2007-047
identified the EFU-TRB zoning, as reducing the value of his property by inhibiting development of a
subdivision. In 1973 and 1977, Deschutes County Ordinance No. PL-5 was in effect. This included A-1
zoning for the subject property with a five-acre minimum lot size.
It appears that, based upon zoning in effect in 1973 and 1977, respectively, 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 - $2,178,900 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 asserts that domestic water is available from Avion Water Co. for the desired
subdivision.
• Claimant asserts that on-site septic systems are or would be feasible for the desired subdivision.
• Claimant asserts that electricity and telephone are available.
• Claimants have submitted an opinion estimate of the current value of the property if a subdivision
to create eleven five-acre lots was allowed. A price of $250,000 per lot yields a sales price of
$2,750,000, less sales, development, engineering of $572,000 yields the $2,178,000 claim.
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
Page 3 of 5 - Exhibit A - Order No. 2007-047
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 each of the properties, but not under zoning restrictions adopted after Claimant's acquisition
dates, 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, Robert E. Burnside has continuously owned an interest in the property since 1973 for TL
1000 and 1977 for TL 101. 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
Robert E. Burnside, the present owner of the property, has submitted a claim pursuant to Measure 37
which demonstrates eligibility for his use of the subject property based on nonexempt land use
regulations in effect on October 3, 1973 for TL 1000 and March 8, 1977 for TL 101, the dates when
Claimant first acquired an interest in the properties. There is some evidence in the record that some
additional development on the subject properties may be feasible for available domestic water, sanitary
waste disposal and road access.
Page 4 of 5 - Exhibit A - Order No. 2007-047
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
October 3, 1973 for TL 1000 and March 8, 1977 for TL 101, 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. 2007-047
• .
EXHIBIT B
-The A'ur'tituest ,'uarter (!✓Wj) of the North Six Hundred
Sixxu (660) feet of she ,outh Sixteen Hundred Fifty
(16jG) feet of the WISt $al~ (jjj) of the Nurthwest
tUurter (MGY) or section Tu,entq-two (22), Township
iyhte.n (1~! :south, F.ange Twelue East of the
;yillamette Aferidian; together with Two and one-half
i21 acres of Arnold Water anpurtenar.t thereto.
ff)r ninelines across
EXHIBIT B