2007-364-Order No. 2007-065 Recorded 3/26/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS Q 2007mN
COMMISSIONERS' JOURNAL 03/26/2007 08:48:06 AM
IIIIIIII IIIIIIIIIIIIIIIII II I III
2007-364
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COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS 2401-11210
REVIE
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UNSEL 0 1137 200 TOO172100 03/23/2007 03;36;43 PM
D-M37 Cnta1 Stns23 PO
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~n BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Donna R. King, Edward * ORDER NO. 2007-065
and Sandy Willard and Sunray, Inc. 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, Donna R. King, Edward and Sandy WIllard and Sunray, Inc. made a timely demand for
compensation under Measure 37 for a reduction in value to their property at 22605 Rickard 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;
On November 20, 2006, Donna R. King and Sunray, Inc. filed a Measure 37 claim with the
Community Development Department.
2. The property is located at Map 18-13-20 Tax Lots 100 and 104 on Rickard 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 December 14, 1981 for Donna R. King and February 10,
1997 for Sunray, Inc., not be enforced in lieu of payment of just compensation to Claimants.
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 Donna R. King and Sunray, Inc.are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since December 14, 1981 for Donna R. King and February 10, 1997
for Sunray, Inc. The County finds and concludes as set forth below.
PAGE 1 OF 3- ORDER No. 2007-065 (03/19/07)
5. The Board concurs with the Administrator's report that the current zoning regulations, if applied
to the subject property, would not permit a division of the subject property. The current
regulations are land use regulations which are not exempt from Measure 37 claims.
The Board concurs with the Administrator's report that an application for a division of the
subject property would be denied if the current regulations were applied. Therefore, an
additional 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 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 partition 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. 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 December 14, 1981 for Donna R. King and February 10, 1997
for Sunray, Inc. If a reviewing court should determine that despite conveyance of their interest in the property
to Sunray, Inc., that Edward and Sandy Willard continue to be "owners" as defined by ORS 197.352, then their
acquisition date is November 7, 1991. 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 dates of acquisition for Donna R. King and Sunray, Inc.
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
PACE 2 of 3- ORDER No. 2007-065 (03/19/07)
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.
DATED this /1,%ay of March, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-065 (03/19/07)
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 - Donna R. King, Edward and Sandy Willard and
Sunray, Inc. (Claimants)
22605 Rickard Road. Bend. OR
Introduction
DATE: March 19, 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 November 20, 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 18.8 acres in two tax lots. The current
zoning is EFU-TRB. The Claimants' desired use is to divide the property, currently restricted by County
Page 1 of 5 - Exhibit A - Order No. 2007-065
land use regulations. Claimants allege a reduction in value of approximately $1,250,000 due to the
inability to divide as desired. The following is an analysis of the evidence in the record on the elements of
this Measure 37 claim.
Current Owner - Donna R. King as Donna R. King Living Trust and Sunray, Inc. are the owners of the
property comprising this claim: 18-13-20, Tax lots 100 and 104 located at 22605 Rickard Road, Bend.
They are listed on County records as the owners and have owned the property continuously from their
respective dates of acquisition. Donna R. King first acquired an interest in Tax Lot 104 with her husband
by Trustee's Deed on December 14, 1981. Volume 354, page 659 Deschutes County Deed Records.
Husband and wife conveyed the subject property to the Donna R. King Living Trust (Claimant) on April
25, 2006 by Warranty Deed. 2006-61861 Deschutes County Official Records.
Claimants Edward and Sandra Willard first acquired an interest in Tax Lot 100 by Warranty Deed from
John Murray on November 7, 1991. Volume 250, page 1777, Deschutes County Deed Records. They
conveyed their interest in Tax Lot 100 to Sunray, Inc. by Bargain and Sale Deed on February 10, 1997.
On August 13, 1999 Sunray and the Kings applied for and on January 6, 2000 were denied a partition of
Tax Lot 100 and 104 into two 9.39 acre parcels consistent with the Tax Lot boundaries. That partition
proceeding noted that the county recognizes only one lot of record per LR-93-33, A-94-15.
Claimant Donna R. King's date of acquisition of Tax Lot 104, then, is December 18, 1981 with her Living
Trust.
Claimants Edward and Sandra Willard's interest, absent evidence in the record that Sunray is their
closely held corporation, seems to have ended with the conveyance to Sunray, Inc, If a court determines
that the Willard's interest exists and is continuous, their date of acquisition would be November 7, 1991.
The date of acquisition for the interest of Claimant Sunray, Inc. was February 10, 1997.
Owner Date of Acquisition - December 14, 1981 for Donna R. King and February 10, 1997 for Sunray,
Inc. If the Willards have an interest, then their acquisition date is November 7, 1991.
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
Page 2 of 5 - Exhibit A - Order No. 2007-065
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 Donna R. King Living Trust first obtained an interest in the property is December 14, 1981; for
Edward and Sandy Willard (if they are "owners") November 7, 1991, and for Sunray, Inc. February 10,
1997.
Restrictive Regulation - 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 DCC 18.16.055 as the specific provision of the county's ordinance, alleging that those current
regulations have reduced the value of their property by prohibiting their ability to divide the property into
smaller lots. The property was zoned EFU-20 in 1981 under PL-15 and EFU-TRB in 1997 under Title 19.
The partition requirement may or may not have the effect of restricting the division of the property. While
the county would need to evaluate any land use 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 1981, that a division would not have been permitted at that time based on the
1979 EFU-20 zoning with a twenty-acre minimum lot size.
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 applied for a land division resulting in the current zoning being enforced on the
subject property in 1999. Claimants have demonstrated that submitting an application at this time for such
a land division would be futile. This Report confirms that such an application for the desired land division
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 - $1,250,000 alleged on Claim Form
Page 3 of 5 - Exhibit A - Order No. 2007-065
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 have been approved at the time they acquired
an interest in the property.
• Claimants' property is located along Rickard and Gosney Roads so access may not be an issue.
• Other public utilities may be available to the property.
• Claimants have submitted an opinion from a real estate professional in an attempt to show the
diminution in value based upon limitations on land division of the property.
Claimants' alleged reduction in value appears to be based upon the assumption that parcels created by
partitioning 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 divide 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
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
division 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 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,
Page 4 of 5 - Exhibit A - Order No. 2007-065
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, Donna R. King and Sunray, Inc. have continuously owned an interest in the property since
1981 and 1997, respectively. 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 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
December 14, 1981 for Donna R. King and February 10, 1997 for Sunray, Inc., 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 would be feasible if a partition is approvable.
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
December 14, 1981 for Donna R. King and February 10, 1997 for Sunray, Inc., to allow the Claimants to
use the property in a manner permitted at the time they each acquired an interest in 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
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. 2007-065
A parcel of land located in the North One-Halt of the Northeast One-Quarter of Section
Twenty (20), TOWNSHIP EIGHTEEN (18) SOUTH, RANGE THIRTEEN (13) EAST OF
THE WILLAMETTE MERIDIAN, Deschutes County, Oregon, more particularly described
as follows:
Commencing at the North One-Quarter corner of said Section 20; thence South 89°44'10"
East, 30.00 feet; thence South 00046110" West, 351.32 feet along the Easterly right-of-way of
Gosney Road to the TRUE POINT OF BEGINNING; thence South 89052'30" East, 1363.61
feet; thence South 00°34'55" West, 319.33 feet; thence North 89°52 JV" West, 1364.65 feet to a
point on the Easterly right-of-way of Gosney Road; thence North 00°46110" East, 319.34 feet
to the TRUE POINT OF BEGINNING.
EXHIBIT B