2007-365-Order No. 2007-063 Recorded 3/26/2007D
ESCHUTES COUNTY OFFICIAL RECORDS
NANCY BLANKEN, CO
COMMISSIONERSSHJOURNALNTY CLERK CJ 1001.65
03/16/100108 ; 48 ; 06 AM
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REVIEW NANCYUBLANKCOUNTY
ENSHIP,F000NTY CLERKDS 2007-11711
LEGAL COUNSEL VIII I IIII III II VIII I I NO FEE
I IIII II IIII IIII 111111 III
00s 1ds20070017211 080084 03/23/ZO07 03;36;43 PM
D-N37 Cntmi Stns23 PG
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 Lawrence and Evelyn * ORDER NO. 2007-063
Davis 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, Lawrence and Evelyn Davis made a timely demand for compensation under Measure 37
for a reduction in value to their property at 22225 Neff Road and Ten Bar 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;
1. On November 17, 2006, Lawrence and Evelyn Davis filed a Measure 37 claim with the
Community Development Department.
2. The two properties are located at 22225 Neff Road and Ten Bar 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 August 19, 1964 for TL 300 (Lawrence and Evelyn Davis)
and June 5, 1980 for TL 601 (Lawrence Davis) 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 Lawrence and Evelyn Davis are the
present owners of TL 300, described in Exhibit "B," having acquired an interest and
continuously owned it since August 19, 1964. Lawrence Davis is the present owner of TL 601,
described in Exhibit "B" having acquired an interest and tontinuously owned it since June 5,
1980. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-063 (03/19/07)
The Board concurs with the Administrator's report that the current minimum lot size
regulations, if applied to TL 300, would not permit a land division of the subject property. The
current zoning regulations are land use regulations which are not exempt from Measure 37
claims, except as Airport Safety regulations which are exempt under Measure 37.
6. The Board concurs with the Administrator's report that an application for a subdivision of TL
300 would be denied if the current regulations were applied. Therefore, such an application to
determine enforcement of the current zoning to the Claimants' properties 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 properties.
8. The Board concurs with the Administrator's report that division of the properties 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 properties. For both Lawrence and Evelyn Davis, their acquisition date of TL 300 is
August 19, 1964 and for Lawrence Davis his date of acquisition of TL 601 is June 5, 1980. That land use shall
be permitted if the subject property fully complies with Airport Safety regulations for TL 300 and all substantive
land use regulations in effect on August 19, 1964 for TL 300 and June 5, 1980 for TL 601. 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 Lawrence
and Evelyn Davis.
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. 2007-063 (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] / ' day of March, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-063 (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 - Lawrence and Evelyn Davis (Claimants)
22225 Neff 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
n
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 17, 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 lots with approximately 40 acres in two tax lots. The current
zoning is EFU-TRB for Tax Lot 601 and MUA-10 for Tax Lot 300. The Claimants' desired use is to divide
tax lot 300 into five-acre lots and to construct a new dwelling on tax lot 601. The Claimants allege that
Page 1 of 5 - Exhibit A - Order No. 2007-063
both of these proposals are currently restricted by County land use regulations. Claimants allege a total
reduction in value of approximately $1,257,000 due to the inability to develop these properties as desired.
The following is an analysis of the evidence in the record on the elements of this Measure 37 claim.
Current Owner - Lawrence and Evelyn Davis are the owners of the properties comprising this claim: Map
17-13-31, Tax Lot 300 located at 22225 Neff Road, Bend and 18-13-03, Tax Lot 601 located at Ten Barr
Trail, Bend. Claimants submitted a copy of a special warranty deed for Tax Lot 601, dated June 5, 1980,
showing Lawrence Davis as grantee. Volume 179-2856 Deschutes County Deed Records. A warranty
deed, dated August 19, 1964 shows Lawrence and Evelyn Davis, husband and wife, as grantees for Tax
Lot 300. Although County records now show Lawrence and Evelyn Davis as current owners of tax lot
601, there is no evidence in the record as to when Evelyn acquired an interest in the property. They are
listed on County records as the owners of tax lot 300 and have owned the property continuously.
Owner Date of Acquisition - August 19, 1964 for Tax Lot 300 (Lawrence and Evelyn Davis); June 5, 1980
for Tax Lot 601 (Lawrence Davis)
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 Lawrence and Evelyn Davis obtained an interest in the property is August 19, 1964 for Tax Lot
300 and Lawrence Davis alone obtained an interest in TL 601 on June 5, 1980.
Restrictive Regulation -EFU and MUA-10 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 the specific provisions of the county's zoning ordinance which are alleged to have reduced the
Page 2 of 5 - Exhibit A - Order No. 2007-063
value of their property by prohibiting their ability to divide the property into smaller lots or to develop a
new home on tax lot 601. There were no zoning regulations in effect in 1964 for Tax Lot 300. However,
the current Airport Safety AS zoning will continue to limit development because such public safety
regulations are exempt under Measure 37.
The MUA-10 requirement was adopted after the acquisition date of 1964 and would have the effect of
restricting the subdivision 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 1964, that a land
division could have been permitted at that time.
For Tax Lot 601 the current zoning of EFU-TRB prevents division of this twenty-acre parcel. In 1980 the
zoning Nvas EFU-20 under PL-151[mi]. The standards for approval of a farm-related dwelling have
hanged 1[.21since the property was acquired in 1980.
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, nor have they applied for dwelling approval on tax lot 601.. 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.
However, the Claimants have not demonstrated that submitting an application for a dwelling on tax lot
601 would be futile. While the property probably would not qualify for a farm-related dwelling under the
current income or size requirements in the EFU zone, there is no evidence to demonstrate that a nonfarm
dwelling or a lot of record dwelling could not be approved. Therefore, the intent of DCC 14.10.040(G) has
been met for this claim for tax lot 300 but not for tax lot 601.
Reduction in Value - $1,257,000 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 for tax lot 300.
• Claimants' properties are located along Ten Barr Trail and Neff Road so access may not be an
issue.
Page 3 of 5 - Exhibit A - Order No. 2007-063
• Other public utilities, including Avion Water, may be available to the properties.
• Claimants have not submitted an appraisal. An opinion from a real estate broker was submitted
in an attempt to show the diminution in value based upon limitations on land division of the
properties.
Claimants' 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
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
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. "
Page 4 of 5 - Exhibit A - Order No. 2007-063
In this case, Lawrence and Evelyn Davis have continuously owned an interest in tax lot 300 since 1964
and Lawrence Davis has continuously owned an interest in tax lot 601 since 1980. 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 properties 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 19, 1964 for Tax Lot 300 (Lawrence and Evelyn Davis) and June 5, 1980 for Tax Lot
601 (Lawrence Davis), the dates when Claimants first acquired an interest in the properties. There is
evidence in the record that a land division of the subject property would 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 19, 1964 for Tax Lot 300 (Lawrence and Evelyn Davis); June 5, 1980 for Tax Lot 601 (Lawrence
Davis), 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 permits and specifically does not waive AS Airport Safety regulations for
Tax Lot 300 which are exempt regulations that continue to apply under Measure 37.
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. 2007-063
EXHIBIT B
TL 300
BegbvdM at the North Quarter Corner of Section ndrt}}++-one
(31) Twnship Seventeen (17) South, !Range Thirteen (13),
&W.N., which is a 518" r. rodl thence S. 890 45' 03"
East, 660 feet; thence South 0 02' 55" west, 1320 feet;
thence North 890 45' 03" Meet, 660 feet; thence North
00 02' 55" But, 1320 feet to the point of beginnln:`,
containing 20.0 acres, more or lees
TL 601
Being a parcel of land located in the Northeast Quarter
of the Southeast Quarter (NE-1/4 SE-1/4) of Section
Three (3), Township Eighteen (18) South, Range Thirteen
(13) East of the Willamette Meridian, Deschutes County,
Oregon. Being more particularly described as followss
Being the East Half of the Northeast Quarter of the
Southeast Quarter (E-1/2 NE-1/4 SE-114) of Section 3,
Township 18 South, Range 13 East of the Willamette
Meridian, Deschutes County, Oregon.
EXHIBIT B