2007-156-Order No. 2007-054 Recorded 3/12/2007DESCHUTES COUNTY CLERKDS yy
NANCY
COMMISSIONERS' JOURNAL 03112/2007 04;18;53 PM
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2007-i
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Deschutes County Clerk
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Re-recorded to correct [give reason]
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REVIE DESCHUTES COUNTY OFFICIAL RECORDS 1001'14411
NANCY BLANKENSHIP, COUNTY CLERK
-A k -
LEGAL OUNSEL NO FEE
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00S34i29200700144220090082 03/09/2007 03:09:50 PM
D-M37 Cnt:1 Stns7 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 Arland and Ima Jean
Keeton to Use the Subject Property as Allowed
When They Acquired the Property
* ORDER NO. 2007-054
*
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, Arland and Ima Jean Keeton made a timely demand for compensation under Measure 37
for a reduction in value to their property at 68988 Holmes Road, Sisters, 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 October 13, 2006, Arland and Ima Jean Keeton filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 68988 Holmes Road, Sisters, 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 August 1, 1972, 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 Arland and Ima Jean Keeton are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since August 1, 1972. The County rinds and concludes as set forth
below.
5. The Board concurs with the Administrator's report that the current zoning regulations, if applied
to the subject property, would not permit a subdivision of the subject property in the desired
PAGE 1 of 3- ORDER No. 2007-054 (03/05/07)
location. 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 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 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 a land use permit have reduced the value of the
subject property.
8. The Board concurs with the Administrator's report that a division of the property 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
subdivide the subject property would be a substantial amount of reduction in fair market value if
the regulations at the time Claimants 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
property 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 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 August 1, 1972. 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 Arland and Ima Jean Keeton.
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
PAGE 2 of 3- ORDER No. 2007-054 (03/05/07)
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 e., day of March, 2007.
ATTEST:
(&4t,,4_
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
_ a)-S OLt
MICHAEL M. DALY, CHAIR
DE 4RLUK
, V CE
CHAIR
T Y, CO ISSIONER
PAGE 3 of 3- ORDER No. 2007-054 (03/05/07)
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 - Arland and Ima Jean Keeton (Claimants)
68988 Holmes Road, Sisters, OR
Introduction
DATE: March 5, 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 13, 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 one lot with approximately 40 acres in one tax lot. The current
zoning is EFU-SC. The Claimants' desired use is to divide the property, currently restricted by County
land use regulations. Claimants allege a reduction in value of approximately $1,000,000 due to the
Page 1 of 5 - Exhibit A - Order No. 2007-054
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 - Arland and Ima Jean Keeton are the owners of the property comprising this claim: 15-
11-4, Tax lot 301 located at 68988 Holmes Road, Sisters. Claimants submitted a copy of a Contract of
Sale, dated August 1, 1972, showing them as grantees. They are listed on County records as the owners
and have owned the property continuously.
Owner Date of Acquisition - August 1, 1972
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 Arland and Ima Jean Keeton obtained an interest in the property is August 1, 1972.
Restrictive Regulation - EFU Zoning Regulations.
Under the terms of the ordinance, the claimants must identify County land use regulations that prevent
the claimant from using the property in a way that they otherwise could have used the property at the time
the property was acquired, and thus reduce the value of the claimants' property. The Claimants have not
identified specific provisions of the county's ordinance but have alleged that current regulations have
reduced the value of their property by prohibiting their ability to divide the property into smaller lots.
There was a minimum lot size regulation in effect in 1972 in Deschutes County Ordinance PL-2.
Current zoning was adopted after the acquisition date of 1972 and would have the effect of restricting the
subdivision of the property. While the county would need to evaluate any permit application that may be
submitted pursuant to regulations in effect at the time Claimants first acquired an interest in the property,
it appears that in theory, based upon regulations in effect in 1972, that a land division may have been
permitted at that time.
Page 2 of 5 - Exhibit A - Order No. 2007-054 1
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 have applied for a subdivision 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 subdivision 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 - $1,000,000 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 property resulting from the enforcement of the County's land use
regulation.
• Claimants have asserted that a land division would be approved.
• Claimants' property is located along Holmes Road, so access may not be an issue.
• Other public utilities may be available to the property.
• Claimants have not submitted an appraisal, or opinions from real estate professionals in an
attempt to show the diminution in value based upon limitations on land division of the property.
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 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 Claimants could have obtained approval of a
subdivision of the property on the date they 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
Page 3 of 5 - Exhibit A - Order No. 2007-054
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, Arland and Ima Jean Keeton have continuously owned an interest in the property since
1972. A claimant who receives a waiver must use the current process to seek the needed permits based
on the regulations 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 have 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 August
1, 1972, the date when Claimants first acquired an interest in the property. There is evidence in the
record that a land division 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
August 1, 1972, 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 Claimants' desired permit.
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
Page 4 of 5 - Exhibit A - Order No. 2007-054
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. 2007-054
In Township Fifteen (15) South, Range Eleven (11), East of
the r;iliamette Meridian:
Section Four (4): The Northwest Quarter of the Southwest
quarter
Section Five (5): A strip of land along the east side of
the Northeast Quarter of the Southeast Quartar, said strip
,~--be eing described as follows: That portion of said NE1/4
SE-1/4 of said Section 5 lying; Ease of a line drawn front
a poi. t on the South line of said S c Li a n , '-Ach said
point is at, a distance of 71-2/3 feet West of the South-
east corner of said Section 5, to a point or_ the North
tiie of said S l/4 or Section 5, which point is at a
distance of 52 feet Wiest of the Northeast corner of said
Section 5;
EXCyPTI;1TG TUREPRO.M: Beginning at the Southwest corner
of the M-11/4 S.ti1/4, Section 4, Township 15 South, Range
11 East of the Willailiette Meridian, thence East to the
East ad ,-e of the right of way of 1orner Road to the
point of beginning; thence East 208.71 feet; thence North
238.71 feet; thence West 208.71 feet to the East edge of
the right of way of Horner Road to the point of beginning, ;
said descriptir.:^ containing one square acre of land in
the extreme Southwest corner of the NWl/4SW1/4 of said
Section 4.
EXHIBIT B