2007-367-Order No. 2007-066 Recorded 3/26/2007DESCHUTES
NANCY
COUNTY CLERK DS V 001.361
COMMISSIONERS' JOURNAL
03/26/2007 08;48;06 AM
2007-367
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Deschutes County Clerk
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Re-recorded to correct [give reason]
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DESCHUTES COUNTY OFFICIAL RECORDS 2007-17213
IEw NANCY BLANKENSHIP, COUNTY CLERK LEGREAL CO SEL 1111111111ti I IIIIIII III I
IIIII NO FEE
I Illillll III 111111 II
0 S3 200700172130080007
03/23/2007 03:36;43 PM
D-M37 Cntml Stnm23 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 Kathleen Elliott to Use * ORDER NO. 2007-066
the Subject Property as Allowed When She
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, Kathleen Elliott made a timely demand for compensation under Measure 37 for a reduction
in value to her property at 1015 NW Pershall Way, Redmond, Oregon due to regulations which took effect after
she 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 22, 2006, Kathleen Elliott filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 1015 NW Pershall Way, Redmond, 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 February 6, 1964, 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 Kathleen Elliott is a present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since February 6, 1964. The County finds and concludes as set forth below.
5. The Board concurs with the Administrator's report that the current minimum lot size
regulations, if applied to the subject property, would not permit a division of the subject
PAGE 1 of 3- ORDER No. 2007-066 (03/19/07)
property. 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 division 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 properties.
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 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 she 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 February 6, 1964. 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 Kathleen Elliott.
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. 2007-066 (03/19/07)
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 " day of March, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-066 (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 - Kathleen Elliott (Claimant)
1015 NW Pershall Wav. Redmond. 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 22, 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 one lot with approximately 20 acres in one tax lot. The current
zoning is Surface Mining. The Claimant's desired use is to divide the property, currently restricted by
County land use regulations. Claimant alleges a reduction in value of approximately $800,000 due to the
Page 1 of 5 - Exhibit A - Order No. 2007-066
inability to subdivide as desired. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim.
Current Owner - Kathleen M. Elliott Revocable Trust is an owner of the property comprising this claim:
14-13-33, Tax lot 600, located at 1015 NW Pershall Way, Redmond. Kathleen M. Elliott first acquired an
interest in the subject property with her husband by warranty deed, dated February 6, 1964. The subject
property was included in the Revocable Trust Agreement executed on March 4, 1992 with the Elliotts as
Trustors and Trustees. Upon Mr. Elliott's death in 1993, an undivided one-half interest in the subject
property was retained by the Kathleen Elliott Revocable Trust and by a new Fred Elliott Trust, an
irrevocable Trust. The County has determined that a revocable trust is merely a different form of
ownership by the individual. In this claim, Kathleen Elliott has continuously owned an undivided one-half
interest in the subject property as an individual and in her revocable trust. She is listed on County
records as an owner and has owned the property continuously.
Owner Date of Acquisition - February 6, 1964
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 Kathleen Elliott obtained an interest in the property is February 6, 1964.
Restrictive Regulation - Surface Mining 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 claimant's property. The Claimant has
identified Surface Mining Zoning as the specific provisions of the county's ordinance alleging that these
current regulations have reduced the value of their property by prohibiting their ability to divide the
Page 2 of 5 - Exhibit A - Order No. 2007-066
property into smaller lots. There were no zoning regulation in effect in 1964. The property was first
zoned SM in 1979 under PL-15. The SM zone was re-applied in 1990 upon request of the Claimant.
(See: Ord. No. 90-014; ESEE analysis for SM site no. 466). The County agreed to zone this property SM
in 1990 based upon the presence of approximately 5 million cubic yards of good quality cinders.
This zoning requirement was adopted after the acquisition date of 1964 and would 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 Claimant first acquired an interest in
the property, it appears that in theory, based upon regulations in effect in 1964, that a subdivision could
have been permitted at that time.
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 land division resulting in the current zoning being enforced on the
subject property. Claimant has 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 - $800,000 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 a land division would be approved.
• Claimants' property is located along NW Pershall Way so access may not be an issue.
• Other public utilities may be available to the property.
• Claimant has 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.
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
Page 3 of 5 - Exhibit A - Order No. 2007-066
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."
In this case, Kathleen Elliott has continuously owned an interest in the property since 1964. 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
A 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
February 6, 1964, the date when Claimant first acquired an interest in the property. There is evidence in
the record that a land division of the subject property would be feasible.
Page 4 of 5 - Exhibit A - Order No. 2007-066
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
February 6, 1964, to allow the Claimant to use the property in a manner permitted at the time she
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 Claimant's desired permit.
Cautionary Note on Measure 37
Claimant should understand that a decision by Deschutes County may not enable her 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. 2007-066
EXHIBIT B
PARCEL 3: IN TOWNSHIP 14 SOUTH, RANGE 13 EAST OF THE WILLAMETTE MERIDIAN,
Deschutes County, Oregon:
Section 33: The S}SEWip EXCEPT starting at the southeast corner of the
SZt Wk of said section, and running thence on an assumed bearing of North
320 141 West a distance of 631 feet to the point of beginning; thence
North 40' 47► vest a distance of 80 feed. thence North 49. 131 East a
distance of 50 feet; thence South 40. 471 East a distance of 80 feed
thence South 49° 13► west a distance of 50 feet to the point of beginning;
EXHIBIT B